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Thread: Official Oppression

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    Hi,
    I am new to posting on here. I do read, but have never posted. I am very interested in the statues concerning the arrest of someone exercising their right to carry. I know that in Texas and Pennsylvania as well as other states there is a criminal charge called official oppression. It states in Texas "
    Code:
    A public servant 
    acting under color of his office or employment commits an offense if 
    he:
    intentionally denies or impedes another in the 
    exercise or enjoyment of any right, privilege, power, or immunity, 
    knowing his conduct is unlawful
    
    It is a crime in Texas and is a class A misdemeanor.
    
    I am wondering if anyone has run across anything like this. I am not looking for 
    the federal statute that is a civil action and you can only plea for injunctive 
    relief. I am looking for a Wisconsin statute. This would be something that would 
    be very positive as a deterent to any officer who may arrest someone. It would mean
    that they could be charged criminally. I will continue to search the statutes, but
    I figured I would ask just in case someone has already come across one. Thanks and 
    I look forward to meeting you guys sometime. 
    
    Ben

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    esstealth93 wrote:
    Hi,
    I am new to posting on here. I do read, but have never posted. I am very interested in the statues concerning the arrest of someone exercising their right to carry. I know that in Texas and Pennsylvania as well as other states there is a criminal charge called official oppression. It states in Texas "
    Code:
    A public servant 
    acting under color of his office or employment commits an offense if 
    he:
    intentionally denies or impedes another in the 
    exercise or enjoyment of any right, privilege, power, or immunity, 
    knowing his conduct is unlawful
    
    It is a crime in Texas and is a class A misdemeanor.
    
    I am wondering if anyone has run across anything like this. I am not looking for 
    the federal statute that is a civil action and you can only plea for injunctive 
    relief. I am looking for a Wisconsin statute. This would be something that would 
    be very positive as a deterent to any officer who may arrest someone. It would mean
    that they could be charged criminally. I will continue to search the statutes, but
    I figured I would ask just in case someone has already come across one. Thanks and 
    I look forward to meeting you guys sometime. 
    
    Ben
    It would be a wonderful thing if we could go after officers that trample our rights at the state level. But I have yet to see any mention of a law similar to what TX has.

    Maybe this is something we can bring up to our legislators to try and get a bill going that addresses this issue.

    Lets look at how WI lets police basically do what they want or some items. There is no state guideline that radar,laser, or Vascarspeed detection devices must be checked by an independent lab within any time frame,
    The police are allowed to have blood drawn from you forcefully even if you refuse. Cities are able to change speed limits at will, and circumvent the federal guidelines for setting the appropriate limit for each roadway. I could go on & on, but it is getting late and I got to get to sleep.

    We need to get some protections or put some reigns on law enforcements authority before it gets too far out of hand. Lets use Flynn's comments about O-C or a start.

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    The word 'oppression' occurs five times in the Wisconsin State Statutes and none are in an useful context.

    The Texas Statute is a state implementation of 42 USC 1983. How does this impact States' Rights? The best government is the least government and to appeal to the national government empowers it over the several states.

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    Doug,
    "The Texas Statute is a state implementation of 42 USC 1983. How does this impact States' Rights? The best government is the least government and to appeal to the national government empowers it over the several states."

    Texas' statute is much more powerful than 42 USC 1983. 1983 is only a civil action, and as far as I know officers have immunity to civil lawsuits. In addition to that it looks like you can only sue for injunctive relief, which is a purely defensive move.

    Under the official oppression statute in Texas it is a criminal action and you can go after the officer themselves instead of the state which is an offensive move.

    Thanks for the replies, I will keep looking and if I find anything post it.

    Ben

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    esstealth93 wrote:
    Texas' statute is much more powerful than 42 USC 1983. 1983 is only a civil action, and as far as I know officers have immunity to civil lawsuits. In addition to that it looks like you can only sue for injunctive relief, which is a purely defensive move.

    Under the official oppression statute in Texas it is a criminal action and you can go after the officer themselves instead of the state which is an offensive move.

    Thanks for the replies, I will keep looking and if I find anything post it.

    Ben
    42 USC 1983 states, Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

    I would think that Police officers would be included in "every person."

    Is there anything written that states Police officers are exempt from civil suit?

    The only exceptions I see here apply to a Judicial Officer.

    To my knowledge, Federal Law supersedes state law in all instances.

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    esstealth93 wrote:
    Doug,

    [ ... ]

    Texas' statute is much more powerful than 42 USC 1983. 1983 is only a civil action, and as far as I know officers have immunity to civil lawsuits. In addition to that it looks like you can only sue for injunctive relief, which is a purely defensive move.

    Under the official oppression statute in Texas it is a criminal action and you can go after the officer themselves instead of the state which is an offensive move.

    Thanks for the replies, I will keep looking and if I find anything post it.

    Ben
    Court officers do not have unqualified immunity!

    'You' cannot charge anyone with a crime, "go after the officer" in a criminal action! A criminal charge, an indictment, can only be brought by the state. You may file a criminal complaint but it will get no action without an indictment/true bill from the prosecuting attorney/Grand Jury.

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    J.Gleason wrote:
    To my knowledge, Federal Law supersedes state law in all instances.
    What does that mean in practical terms?

    For instance, there is a Federal Gun Free School Zones law, still a South Carolina Concealed Weapon Permitee can have a gun on school property.

    The Gun-Free School Zones Act of 1990 was enacted as section 1702 of the Crime Control Act of 1990 (PL 101-647, 18 USC 922(g) on 29 November 1990.

    What effect on States' Rights does the superiority of Federal Law over State Law have? Are States Rights a moot issue, even in your mind?

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    Two points:

    1) Washington sate has a similar 'official oppression' laws known as COERCION (for threats), and OFFICIAL MISCONDUCT (for actual actions), so you may want to expand your search parameters in Texas or other states to find similar legislation.

    2) These laws, being criminal in nature, would more accurately be considered a reflection of Title 18, section 424 USC Deprivation of Rights Under Color of Law, than Title 42, sec 1983.

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    Phssthpok

    Thanks!!! That is exactly what I was looking for. I found the statute.

    946.12Misconduct in public office. Any public officer or public employee who does any of the following is guilty of a Class I felony:
    (1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer's or employee's office or employment within the time or in the manner required by law; or
    2) In the officer's or employee's capacity as such officer or employee, does an act which the officer or employee knows is in excess of the officer's or employee's lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer's or employee's official capacity; or

    Its not as good as texas', but It will certainly allow the bringing of a criminal charge against any officer that arrests for open carry.

    Also,
    For people like Police Chief Flynn. There is

    946.69Falsely assuming to act as a public officer or employee or a utility employee.
    (2) Whoever does any of the following is guilty of a Class I felony:946.69(2)(a)

    (a) Assumes to act in an official capacity or to perform an official function, knowing that he or she is not the public officer or public employee or the employee of a utility that he or she assumes to be.

    946.69(2)(b)
    (b) Exercises any function of a public office, knowing that he or she has not qualified so to act or that his or her right so to act has ceased.



    Doug,
    You Wrote

    Court officers do not have unqualified immunity!

    'You' cannot charge anyone with a crime, "go after the officer" in a criminal action! A criminal charge, an indictment, can only be brought by the state. You may file a criminal complaint but it will get no action without an indictment/true bill from the prosecuting attorney/Grand Jury.

    I am talking about filing a criminal complaint against any officer who would arrest someone for open carry without breaking a statute. You are correct on only the prosecuting attorney or a grand jury can bring those charges against him in court. However the prosecuting attorney is bound by statute as well. If he will not prosecute when an officer has broken statute, I would file criminal charges against him as well. He would be liable under many different statutes including the first one I posted:
    946.12 (1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer's or employee's office or employment within the time or in the manner required by law; or

    There are also generally shielding from prosecution statutes for prosecuting attorneys as well, but i still have to find that one. Also you can file bar grievances against them and that makes their bond insurance price increase.

    I will keep looking and posting, but class 1 felonies are no joke.

    If anyone knows of the shielding from prosecution statute, please let me know.


    Doug,
    Do you know much about Wisconsin Grand Jury's. How often they are in session, who calls them into session. Can a citizen present charges to the grand jury personally?

    Thanks for the help guys.
    Ben

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    Here is statute law on Grand Juries. I suspect details are in the rules of procedure that I'll look at later. ((Right now I'm pooped from a 6 mile walk - State Park unarmed empty holster))

    968.40 Grand jury. (1) SELECTION OF GRAND JURY LIST. Any
    judge may, in writing, order the clerk of circuit court to select a
    grand jury list within a specified reasonable time. The clerk shall
    select from the prospective juror list for the county the names of
    not fewer than 75 nor more than 150 persons to constitute the prospective
    grand juror list. The list shall be kept secret.

    (3) EXAMINATION OF PROSPECTIVE JURORS. At the time set for
    the prospective grand jurors to appear, the judge shall and the district
    attorney or other prosecuting officer may examine the prospective
    jurors under oath or affirmation relative to their qualifications
    to serve as grand jurors and the judge shall excuse those who
    are disqualified, and may excuse others for any reason which
    seems proper to the judge.

    (4) ADDITIONAL GRAND JURORS. If after such examination
    fewer than 17 grand jurors remain, additional prospective jurors
    shall be selected, summoned and examined until there are at least
    17 qualified jurors on the grand jury.

    (6) TIME GRAND JURORS TO SERVE. Grand jurors shall serve for
    a period of 31 consecutive days unless more days are necessary to
    complete service in a particular proceeding. The judge may discharge
    the grand jury at any time.

    (7) ORDERS FILED WITH CLERK. All orders mentioned in this
    section shall be filed with the clerk of court.

    (8) INTERCOUNTY RACKETEERING AND CRIME. When a grand
    jury is convened pursuant to this section to investigate unlawful
    activity under s. 165.70, and such activity involves more than one
    county, including the county where the petition for such grand jury
    is filed, then if the attorney general approves, all expenses of such
    proceeding shall be charged to the appropriation under s. 20.455
    (1) (d).
    History: 1971 c. 125 s. 522 (1); 1977 c. 29 s. 1656 (27); 1977 c. 187 ss. 95, 135;
    1977 c. 318; 1977 c. 447 s. 210; 1977 c. 449; Stats. 1977 s. 756.10; 1991 a. 39; Sup.
    Ct. Order No. 96−08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.40.
    A claim of grand jury discrimination necessitates federal habeas corpus review.
    Rose v. Mitchell, 443 U.S. 545 (1979).
    The grand jury in Wisconsin. Coffey, Richards, 58 MLR 518.

    968.41 Oath or affirmation of grand jurors. Grand jurors
    shall, before they begin performance of their duties, solemnly
    swear or affirm that they will diligently inquire as to all matters
    and things which come before the grand jury; that they will keep
    all matters which come before the grand jury secret; that they will
    indict no person for envy, hatred or malice; that they will not leave
    any person unindicted for love, fear, favor, affection or hope of
    reward; and that they will indict truly, according to the best of their
    understanding.
    History: 1975 c. 94 s. 91 (12); 1977 c. 187 s. 95; Stats. 1977 s. 756.11; Sup. Ct.
    Order No. 96−08,207 Wis. 2d xv (1997); Stats. 1997 s. 968.41.

    968.42 Presiding juror and clerk. The grand jury shall
    select from their number a presiding juror and a clerk. The clerk
    shall preserve the minutes of the proceedings before them and all
    exhibits.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.12; Sup. Ct. Order No. 96−08, 207
    Wis. 2d xv (1997); Stats. 1997 s. 968.42.

    968.43 Reporter; salary; assistant. (1) Every grand jury
    shall when ordered by the judge ordering such grand jury, employ
    one or more reporters to attend their sessions and to make and transcribe
    a verbatim record of all proceedings had before them.
    (2) Before assuming the duties under this section, each
    reporter shall make and file an oath or affirmation faithfully to
    record and transcribe all of the proceedings before the grand jury
    and to keep secret the matters relative to the proceedings. Each
    reporter shall be paid out of the county treasury of the county in
    which the service is rendered such sum for compensation and
    expenses as shall be audited and allowed as reasonable by the
    court ordering the grand jury. Each reporter may employ on his or
    her own account a person to transcribe the testimony and proceedings
    of the grand jury, but before entering upon the duties under
    this subsection, the person shall be required to make and file an
    oath or affirmation similar to that required of each reporter.
    (3) Any person who violates an oath or affirmation required
    by sub. (2) is guilty of a Class H felony.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.13; Sup. Ct. Order No. 96−08, 207
    Wis. 2d xv (1997); Stats. 1997 s. 968.43.; 1997 a. 283; 2001 a. 109.

    968.44 Witnesses. The presiding juror of every grand jury
    and the district attorney or other prosecuting officer who is before
    the grand jury may administer all oaths and affirmations in the
    manner prescribed by law to witnesses who appear before the jury
    for the purpose of testifying in any matter of which the witnesses
    have cognizance. At the request of the court, the presiding juror
    shall return to the court a list, under his or her hand, of all witnesses
    who are sworn before the grand jury. That list shall be filed by the
    clerk of circuit court.
    History: 1977 c. 187 s. 95; 1977 c. 449; Stats. 1977 s. 756.14; Sup. Ct. Order No.
    96−08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.44.

    968.45 Witness rights; transcripts. (1) Any witness
    appearing before a grand jury may have counsel present, but the
    counsel shall not be allowed to examine his or her client, cross−
    examine other witnesses or argue before the judge. Counsel may
    consult with his or her client while before a grand jury. If the
    prosecuting officer, attorney for a witness or a grand juror believes
    that a conflict of interest exists for an attorney or attorneys to represent
    more than one witness before a grand jury, the person so
    believing may make a motion before the presiding judge to disqualify
    the attorney from representing more than one witness
    before the grand jury. A hearing shall be held upon notice with the
    burden upon the moving party to establish the conflict.
    (2) No grand jury transcript may be made public until the trial
    of anyone indicted by the grand jury and then only that portion of
    the transcript that is relevant and material to the case at hand. This
    subsection does not limit the defendant’s rights to discovery under
    s. 971.23.
    History: 1979 c. 291; Sup. Ct. Order No. 96−08, 207 Wis. 2d xv (1997); Stats.
    1997 s. 968.45.

    968.46 Secrecy. Notwithstanding s. 757.14, all motions,
    including but not limited to those for immunity or a privilege,
    brought by a prosecuting officer or witness appearing before a
    grand jury shall be made, heard and decided in complete secrecy
    and not in open court if the prosecuting officer or witness bringing
    the motion or exercising the immunity or privilege so requests.
    History: 1979 c. 291; Sup. Ct. Order No. 96−08, 207 Wis. 2d xv (1997); Stats.
    1997 s. 968.46.

    968.47 District attorney, when to attend. Whenever
    required by the grand jury it shall be the duty of the district attorney
    of the county to attend them for the purpose of examining witnesses
    in their presence or of giving them advice upon any legal
    matter, and to issue subpoenas and other process to bring up witnesses.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.15; Sup. Ct. Order No. 96−08, 207
    Wis. 2d xv (1997); Stats. 1997 s. 968.47.

    968.48 Attendance; absence; excuse; number
    required for grand jury session; number required to
    concur in indictment. Each grand juror shall attend every session
    of the grand jury unless excused by the presiding juror. The
    presiding juror may excuse a grand juror from attending a grand
    jury session only for a reason which appears to the presiding juror
    in his or her discretion as good and sufficient cause for the excuse.
    No business may be transacted at any session of the grand jury at
    which less than 14 members of the grand jury are in attendance
    and no indictment may be found by any grand jury unless at least
    12 of their number shall concur in the indictment.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.16; Sup. Ct. Order No. 96−08, 207
    Wis. 2d xv (1997); Stats. 1997 s. 968.48.

    968.49 Fine for nonattendance. Any person lawfully summoned
    to attend as a grand juror who fails to attend without any
    sufficient excuse shall pay a fine not exceeding $40, which shall
    be imposed by the court to which the person was summoned and
    shall be paid into the county treasury.
    History: Sup. Ct. Order No. 96−08, 207 Wis. 2d xv (1997).

    968.50 Report progress and return indictments. A
    grand jury may report progress and return indictments to the court
    from time to time during its session and until discharged.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.17; Sup. Ct. Order No. 96−08, 207
    Wis. 2d xv (1997); Stats. 1997 s. 968.50.
    A grand jury performs a judicial rather than a legislative function; therefore, a
    progress report unconnected to an indictment may not be made public. State ex rel.
    Caledonia v. Racine County Ct. 78 Wis. 2d 429, 254 N.W.2d 317 (1977).
    968.505 Procedure upon discharge of grand jury.
    When the grand jury is discharged the clerk shall collect all transcripts
    of testimony, minutes of proceedings, exhibits and other
    records of the grand jury, and deliver them as the jury directs either
    to the attorney general or to the district attorney, or upon approval
    of the court deliver them to the clerk of the court who shall
    impound them subject to the further order or orders of the court.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.18; Sup. Ct. Order No. 96−08, 207
    968.51 Indictment not to be disclosed. No grand juror or
    officer of the court, if the court shall so order, shall disclose the fact
    that any indictment for a felony has been found against any person
    not in custody or under recognizance, otherwise than by issuing
    or executing process on such indictment, until such person has
    been arrested.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.19; Sup. Ct. Order, No. 96−08, 207
    Wis. 2d xv (1997); Stats. 1997 s. 968.51.

    968.52 Votes not to be disclosed. No grand juror may be
    allowed to state or testify in any court in what manner he or she
    or any other member of the jury voted on any question before
    them, or what opinion was expressed by any juror in relation to the
    question.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.20; Sup. Ct. Order No. 96−08, 207
    Wis. 2d xv (1997); Stats. 1997 s. 968.52.

    968.53 When testimony may be disclosed. Members of
    the grand jury and any grand jury reporter may be required by any
    court to testify whether the testimony of a witness examined
    before the jury is consistent with or different from the evidence
    given by the witness before the court; and they may also be
    required to disclose the testimony given before the grand jury by
    any person upon a complaint against the person for perjury, or
    upon trial for the offense. Any transcript of testimony taken
    before the grand jury and certified by a grand jury reporter to have
    been carefully compared by the reporter with his or her minutes
    of testimony so taken and to be a true and correct transcript of all
    or a specified portion of the transcript, may be received in evidence
    with the same effect as the oral testimony of the reporter to
    the facts so certified, but the reporter may be cross−examined by
    any party as to the matter.
    History: 1977 c. 187 s. 95; Stats. 1977 s. 756.21; Sup. Ct. Order No. 96−08, 207
    Wis. 2d xv (1997); Stats. 1997 s. 968.53.


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    968.41 Oath or affirmation of grand jurors. Grand jurors
    shall, before they begin performance of their duties, solemnly
    swear or affirm that they will diligently inquire as to all matters
    and things which come before the grand jury
    ; that they will keep
    all matters which come before the grand jury secret; that they will
    indict no person for envy, hatred or malice; that they will not leave
    any person unindicted for love, fear, favor, affection or hope of
    reward; and that they will indict truly, according to the best of their
    understanding.



    This one is of particular interest to me. I know a guy in Texas who goes in to Grand Juries when they are in session and presents criminal charges to the Grand Jury against the district attorney for not prosecuting. I see nothing in statute forbidding a citizen from doing that. If its not prohibited, then we should be able to do it.

    Thanks for jotting down all the statutes Doug

    Ben

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    The is no evidence yet that a citizen can present an indictment to a Wisconsin GJ.

    I hope that you recognized the significance of 968.40(6), TIME GRAND JURORS TO SERVE. Grand jurors shall serve for a period of 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time.

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    Doug,
    My understanding of law is that a citizen can do whatever is not prohibited them by law, and a public official can only do what is directed for him to do by law. I did not see anything stating that only a prosecuting or district attorney can bring information before the grand jury. You are right though, a judge could dismiss the jury, but that would be kinda shady if they were looking into a charge.

    Ben

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    Doug Huffman wrote:
    The is no evidence yet that a citizen can present an indictment to a Wisconsin GJ.

    I hope that you recognized the significance of 968.40(6), TIME GRAND JURORS TO SERVE. Grand jurors shall serve for a period of 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time.
    Is this time limit devoted to one case only?

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    esstealth93 wrote:
    I did not see anything stating that only a prosecuting or district attorney can bring information before the grand jury.
    As I said before, there are probably regulations in the rules of procedure and I have not yet looked into them

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