Tuesday, March 15, 2011

Florida Sheriffs Crushing Constitutional Rights of Adverse Possessors

Florida Sheriffs (including their deputies) have started crushing the rights of Adverse Possessors (APs)

Reports of investigations or arrests abound in Sarasota, Palm Beach, Polk, Hillsborough, Manatee, and Pasco Counties. Charges include burglary, breaking and entering, theft, fraud, and swindle.  In some cases County Property Appraiser Office officials call the sheriff, as in Polk County, and report the Notice of Adverse Possession.  Then the Sheriff goes to interview the adverse possessor, and if possible the owner (who has abandoned the realty).  The Sheriff will then encourage the owner to ask for a trespass warning on the basis of having liability for any damage the AP does.  The Sheriff then writes fraudulent Probable Cause Affidavits, charges the AP with one of the foregoing crimes, and takes it to a judge or magistrate to obtain a fraudulent warrant for a (false) arrest of the AP.  In this way, the Sheriffs have arrested Mark Guerette, Joel McNair, Derrick Hannah, Sholanda Allen, and Stephen Bybel; they intend to arrest George Williams.

Floridians who support the sensible principles of Adverse Possession must hammer Legislators, Sheriffs, State Attorneys, the Attorney General, and the media about the related injustice.  Anyone with half a brain knows that adverse possession of abandoned homes in foreclosure benefits EVERYONE concerned by protecting and improving the realty and improving the curb appeal and safety of the community.  Thus, Sheriffs do great harm to Florida with such bogus arrests.

I have said and do maintain that adverse possession is a right acknowledged by the Florida Legislature, and that government may not lawfully convert the exercise of a right into a crime.  The Supreme Court agrees with me:
  • Shuttlesworth v. Birmingham, 373 US 262
    “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

  • Owen v. Independence, 100 S.C.T. 1398, 445 US 622
    “Officers of the court have no immunity, when violating a Constitutional right, from liability.  For they are deemed to know the law.”

  • Byers v. U.S., 273 U.S. 28
    Unlawful search and seizure.  Your rights must be interpreted in favor of the citizen.

  • Boyd v. U.S., 116 U.S. 616
    “The court is to protect against any encroachment of Constitutionally secured liberties.”

  • Miranda v. Arizona, 384 U.S. 436
    “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

  • Miller v. U.S., 230 F.2d. 486, 489
    “The claim and exercise of a Constitutional right cannot be converted into a crime.”

  • Brady v. U.S., 397 U.S. 742, 748
    “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Furthermore I have accused Sarasota Sheriff Deputies of engaging intentional and knowing fraud in order to contrive the unlawful arrest of McNair.  I have carefully analyzed his arrest documents and found no factual basis in the affidavits for accusations against him of grand theft and scheme to defraud.

  • Black’s Law Dictionary Fifth Edition, page 594.
    Fraud. An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.  A false representation of a matter of fact… which deceives and is intended to deceive another so that he shall act upon it to his legal injury. … It consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him injury… (Emphasis added) –

  • McNally v. U.S., 483 U.S. 350, 371-372, Quoting U.S. v Holzer, 816 F.2d. 304, 307 -
    Fraud in its elementary common law sense of deceit… includes the deliberate concealment of material information in a setting of fiduciary obligation.  A public official is a fiduciary toward the public,… and if he deliberately conceals material information from them he is guilty of fraud.


I have provided below laws regarding unlawful and forcible entry into a residence, detention of realty, and the Florida Castle doctrine.  Note that one gets no Castle doctrine protection against entry by law enforcers doing their duty.


82.01 Unlawful entry and forcible entry” defined.—No person shall enter into any lands or tenements except when entry is given by law, nor shall any person, when entry is given by law, enter with strong hand or with multitude of people, but only in a peaceable, easy and open manner.

82.02 Unlawful entry and unlawful detention” defined.—

(1) No person who enters without consent in a peaceable, easy and open manner into any lands or tenements shall hold them afterwards against the consent of the party entitled to possession.
(2) This section shall not apply with regard to residential tenancies.

82.03 Remedy for unlawful entry and forcible entry.—If any person enters or has entered into lands or tenements when entry is not given by law, or if any person enters or has entered into any lands or tenements with strong hand or with multitude of people, even when entry is given by law, the party turned out or deprived of possession by the unlawful or forcible entry, by whatever right or title the party held possession, or whatever estate the party held or claimed in the lands or tenements of which he or she was so dispossessed, is entitled to the summary procedure under s. 51.011 within 3 years thereafter.

82.04 Remedy for unlawful detention.—

(1) If any person enters or has entered in a peaceable manner into any lands or tenements when the entry is lawful and after the expiration of the person’s right continues to hold them against the consent of the party entitled to possession, the party so entitled to possession is entitled to the summary procedure under s. 51.011, at any time within 3 years after the possession has been withheld from the party against his or her consent.
(2) This section shall not apply with regard to residential tenancies.

82.05 Questions involved in this proceeding.—No question of title, but only right of possession and damages, is involved in the action.

82.061 Process.—If no person can be found at the usual place of residence of defendant, summons may be served by posting a copy in a conspicuous place on the property, described in the complaint and summons.

82.071 Trial; evidence as to damages.—At trial evidence shall be admitted about the monthly rental value of the premises and if plaintiff recovers, the jury shall fix the plaintiff’s damages at double the rental value of the premises from the time of the unlawful or wrongful holding, but the damages in no action of detainer shall be fixed at more than rental value of the premises unless the jury is satisfied that such detention is willful and knowingly wrongful.

82.081 Trial; form of verdict.—

(1) IN CASES OF FORCIBLE OR UNLAWFUL ENTRY.—In forcible or unlawful entry the form of verdict shall be substantially as follows:

We, the jury, find that defendant did (or did not), within 3 years next before the filing of the complaint, forcibly (or unlawfully) enter upon the real estate mentioned in the complaint and turn plaintiff out of possession; that defendant did (or did not) continue to hold possession at the date of the complaint; and we assess the damages of plaintiff at ____ dollars.

(2) IN CASES OF UNLAWFUL DETAINER.—The form of verdict in unlawful detainer shall be substantially as follows:

We, the jury, find that the defendant did (or did not), at the time of filing the complaint, wrongfully hold possession of the real estate mentioned in the complaint against the consent of plaintiff that defendant has (or has not) so held possession thereof against the consent of plaintiff, within 3 years next before the filing of the complaint; and that plaintiff has (or has not) the right of possession in the real estate, and we assess the damage of plaintiff at ____ dollars.

This subsection shall not apply with regard to residential tenancies.

82.091 Judgment and execution.—If the verdict is in favor of plaintiff, the court shall enter judgment that plaintiff recover possession of the property described in the complaint with his or her damages and costs, and shall award a writ of possession to be executed without delay and execution for plaintiff’s damages and costs. If the verdict is for defendant, the court shall enter judgment against plaintiff dismissing the complaint and order that defendant recover costs.

82.101 Effect of judgment.—No judgment rendered either for plaintiff or defendant bars any action of trespass for injury to the property or ejectment between the same parties respecting the same property. No verdict is conclusive of the facts therein found in any action of trespass or ejectment.




776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.


--

Bob Hurt, Concerned Bob Hurt
2460 Persian Drive #70
Clearwater, FL 33763
727 669 5511
Donate to my Law Scholarship fund
Subscribe to Lawmen E-Letter
Learn to Litigate with Jurisdictionary

No comments: