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There's a Constitutional guarantee embodied in the Fourteenth Amendment to the U.S. Constitution which states in relevant part that "no state shall…..deny to any person within its jurisdiction the equal protection of laws". The essential purpose of this constitutional doctrine is to ensure that the laws and the government treat all persons alike…including those people in Warren County.
 Last we knew, the U.S. Constitution was the Supreme Law of the land, including Warren County and in that he claims to be Warren County Sheriff, Larry Cleveland must treat all persons equally, he cannot deny police protection to a chosen few for retaliatory reasons or pure vindictiveness.
But that's exactly what Larry Cleveland has done in the case of North Country Gazette publisher June Maxam. He has an unconstitutional established policy that she is not to be given any police protection and she is not allowed to file a complaint. Officers who try to take a valid complaint from her which will result in the arrest of a person are contacted via radio or cell phone by their sergeant and told not to allow the publisher to file the complaint.
Cleveland has long abused his position to retaliate against his adversaries and this time, with the political season in full swing and the editorial position of NCG in the sheriff's race well known, Cleveland's retaliation is just a little too obvious---and unconstitutional.
Police officers, prison guards and other government officials like Cleveland who improperly abuse the rights of individual Americans have long been recognized in federal law as a threat to society as a whole. That's why, immediately after the Civil War, Congress approved Title 18 USC 242 -- a statute making it a crime to deprive any person of their rights "under color of law.
Larry Cleveland is not exempt. His abuse of the office of sheriff is a threat to society as a whole.
The definition of acting under color of law is when a person acts or purports to act in the performance of official duties under any law, ordinance or regulation.
There is a history of unequal treatment of Cleveland acting as sheriff of Warren County. Not only is his discriminatory policy already the subject of a federal claim in U.S. District Court, but his denial of equal protection to the publisher last week obligated the county and its taxpayers to yet another legal action with a notice of claim already filed.
Remember Ginger Berlin, the former co-publisher with Maxam in the internet news site The Empire Journal?
In September 2005, Berlin engaged in a wrongful exclusion of Maxam from TEJ and has since refused to discuss the matter with her former business partner nor will she close out the business. She tried to take TEJ for herself without buying out Maxam's half ownership, operating the website and trying to compete with Maxam and The North Country Gazette, then abandoning TEJ and letting it sit idle for over a year, claiming to be operating under a defunct LLC and falsely claiming a trademark registration.
In January 2006, Berlin was responsible for causing the shutdown of The North Country Gazette and thereafter in February, published an untitled article at TEJ falsely accusing Maxam of sending her harassing email along with other untrue statements. She has falsely accused Maxam of copyright infringement, claiming that she owns Maxam's work, and is currently still claiming that Maxam has engaged in a trademark violation. She also claims to be operating under an entity called American Free Media LLC and in July 2006, renewed the domain registration for TEJ under that name. The thing is, American Free Media does not legally exist as it was placed in default by the Nevada Secretary of State's office on June 1, 2006. When Berlin and "American Free Media LLC" renewed the domain registration for TEJ on July 20, 2006, the entity did not legally exist.
American Free Media Registration Information
Trademark Search - The Empire Journal
The domain registration had been transferred from Berlin to Maxam in May, 2006 with Maxam having receipts for payment of the transfer and at no time did she have knowledge of or agree to transferring the registration of theempirejournal.com to Berlin or American Free Media LLC but yet Berlin managed to effect it.
On Feb. 23, 2006, Berlin published a statement at TEJ "we're ready to launch, we're ready to go……The Empire Journal is at the gate…..in 10 days we explode on the scene!"
That was over a year ago and apparently it imploded instead of exploding.
After Berlin's published defamation and false accusations along with her continued refusal to resolve the matter, Maxam was prompted to file litigation against Berlin in state Supreme Court last May in order to finally settle the matter. While in recent days, Berlin has agreed to settle certain issues including issuing an apology and admitting her accusations were false, she refuses to make any monetary settlement to pay costs or damages.
When Berlin was served with interrogatories and request for documents, she failed to provide many of the documents requested and refused to answer questions. After maintaining for nearly 18 months that she was represented by an attorney, when a motion to compel answers was served on her in February, she asked for, and received, several adjournments for the purpose of obtaining an attorney.
Berlin and her attorney have also maintained to the court that they served interrogatories on Maxam. However, Maxam has learned that both the attorney, Christopher Watt of Saratoga Springs, and Berlin have engaged in legal errors and omissions which set the stage for default judgment against Berlin. Although Maxam has offered to electronically provide copies of the emails and other documents, most of which Berlin should already have in her possession, Watt has refused. Therefore, in the coming days, Maxam will publish the documents at a new website to be announced and make them available to not only Berlin and Watt, but the public as well.
As soon as Berlin retained Watt of Hamilton Watt in Saratoga Springs, Berlin and Watt moved for assigned judge Thomas Nolan of the Saratoga County Supreme Court to recuse himself, claiming that Watt's partner was Nolan's personal attorney. Warren County Supreme Court judge David Krogmann, who has a lengthy history of conflicts involving Maxam, was assigned and has refused to recuse himself, even warning Maxam not to file a recusal motion because it would be denied.
On April 18, Robert D. Wells, an agent employed by Watt and Berlin, not only engaged in a road chase of Maxam, violating several sections of the Vehicle and Traffic Law as well as allegedly engaging in a reckless endangerment, a hazardous situation and causing great alarm, entered onto Maxam's posted property, engaging in a civil and criminal trespass.
Patrol officer Michael Wolfe was preparing to take a complaint against Wells when he received a telephone call from his sergeant, telling him that he could not do so, in effect denying the publisher equal protection under the law and her right to file a complaint. A notice of claim has been filed against Warren County, the sheriff's department, Cleveland, Wolfe, Berlin and Watt.
Under NY Constitution, article I, § 12, landowners who fence or post "No Trespassing" signs on their private property or, by some other means, indicate unmistakably that entry is not permitted, have a reasonable expectation that their privacy rights will be respected and that they will be free from unwanted intrusions.
"No Trespassing" signs or other indicia of efforts to exclude the public are relevant in ascertaining the extent of an owner's legitimate expectation of privacy under our State Constitution.
Maxam's property is prominently posted with orange "No Trespassing" signs and Wells apparently knew he could not legally enter as he took no steps to do so until he engaged in a road chase of the publisher.
In Olmstead v. U.S., Justice Brandeis' declared the "right to be let alone---(is) the most comprehensive of rights and the right most valued by civilized man". Wells clearly knew he could not legally enter onto the property as be failed to do so until he chased the publisher with his vehicle on the highway and onto her private property, causing a dangerous and fearful situation.
In the landmark 1992 case, People v. Scott, New York's highest court went a step higher than the U.S. Constitution and held that a landowner has a legal right to exclude the public, ALL members of the public unless a police officer with a legal warrant who stays off the curtilege.
In citing Rakas v. Illinois, 439 U.S. 128, 153, the court held that "property rights reflect society's explicit recognition of a person's authority to act as he wishes in certain areas and therefore should be considered in determining whether an individual's expectation of privacy are reasonable". That a landowner has a legal right to exclude the public is recognized in the sections of New York's Penal law dealing with offenses involving damage to and intrusion upon property (see Penal Law, art. 140, particularly §140.05, trespass and §140.10(a) criminal trespass in the third degree. This "power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights", the Scott court held.
"Our Legislature has recognized the owner's right to prohibit entry on land in the posting provisions of the Environmental Conservation Law (see, ECL §§ 11-2111, 11-2113, 71-0925, 79-0919) and in General Obligations Law § 9-103.....as Justice Brandeis observed, "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law..." (Olmstead, 277 U.S., at 485 [Brandeis, J., dissenting.
The FBI's website points out that U.S. law enforcement officers and other officials like judges, prosecutors, and security guards have been given tremendous power by local, state, and federal government agencies-authority they must have to enforce the law and ensure justice in our country. These powers include the authority to detain and arrest suspects, to search and seize property, to bring criminal charges, to make rulings in court, and to use deadly force in certain situations.
But these officials cannot abuse that authority and cannot single out people to deny police protection to as Larry Cleveland has done.
The FBI is the lead federal agency for investigating color of law abuses which include acts carried out by government officials operating both within and beyond the limits of their lawful authority. Off-duty conduct may be covered if the perpetrator asserted his or her official status in some way.
Preventing abuse of authority, however, is equally necessary to the health of our nation's democracy. That's why it's a federal crime for anyone acting under "color of law" willfully to deprive or conspire to deprive a person of a right protected by the Constitution or U.S. law. "Color of law" simply means that the person is using authority given to him or her by a local, state, or federal government agency.
A person has a right to file a complaint with a police agency and as the State Police will tell you, the police agency is required to take that complaint, not enact unconstitutional policies against certain people as Cleveland has done.
During Fiscal Year 2005, the FBI investigated more than 1,100 color of law cases. Most of these crimes fall into five broad areas:
--excessive force;
--sexual assaults;
--false arrest and fabrication of evidence;
--deprivation of property; and
--failure to keep from harm.
The public counts on its law enforcement officials to protect local communities. If it's shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.
Title 42, U.S.C., Section 14141 makes it unlawful for state or local law enforcement agencies to allow officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or U.S. laws. This law, commonly referred to as the Police Misconduct Statute, gives the Department of Justice authority to seek civil remedies in cases where law enforcement agencies have policies or practices that foster a pattern of misconduct by employees. This action is directed against an agency, not against individual officers.
The types of issues which may initiate a pattern and practice investigation include:
--Lack of supervision/monitoring of officers' actions;
--Lack of justification or reporting by officers on incidents involving the use of force;
--Lack of, or improper training of, officers; and
--Citizen complaint processes that treat complainants as adversaries.
Larry Cleveland has long used and abused his position to get even with critics and in doing so, under color of law, has violated the constitutional rights of individuals. He has become a menace to society.
The sheriff of a municipality is sworn to serve and protect ALL the people and to enforce the laws, not make them. The time for Larry Cleveland to be held accountable is now. 4-26-07
© 2007 North
Country Gazette
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