Rancher Whose Family Ranch Was Seized And Turned Over to Illegal Immigrants Whom He Allegedly Beat:

I got a couple of e-mails from readers who were appalled by this situation:

Just a few months ago, this ranch was known as Camp Thunderbird, the headquarters of a paramilitary group that promised to use force to keep illegal immigrants from sneaking across the border with Mexico.

Now, in a turnabout, the 70-acre property about two miles from the border is being given to two immigrants whom the group caught trying to enter the United States illegally.

The land transfer is being made to satisfy judgments in a lawsuit in which the immigrants had said that Casey Nethercott, the owner of the ranch and a former leader of the vigilante group Ranch Rescue, had harmed them. . . .

The two immigrants . . .accused Mr. Nethercott of threatening them and of hitting Mr. Mancía with a pistol, charges that Mr. Nethercott denied. The immigrants also said the group gave them cookies, water and a blanket and let them go after an hour or so. . . .

A few observations:

1. According to the story, Nethercott didn't defend the lawsuit against him, "so the judge issued [a] default judgment[] of $850,000" against him; the property was seized to satisfy the judgment. Whatever the merits of a lawsuit, you can't just refuse to appear in court. If you do, you'll essentially be ruled to have forfeited — the other side will get a default judgment, and unless you can get it set aside by showing some good reason for the default, it's as if you'd lost on the merits. That's true whatever you're accused of, and it makes it harder for me to sympathize with Nethercott.

2. Nethercott was not convicted of attacking the illegal aliens; the jury deadlocked on that. But a failure to convict doesn't dispose of a civil claim: Because conviction in criminal cases requires proof beyond a reasonable doubt, and liability in civil cases generally requires only proof by a preponderance of the evidence (a much lower standard), it may well be perfectly proper for a criminal jury to acquit (or deadlock) and for a civil claim to nonetheless prevail. (Recall that this is what happened in O.J. Simpson's killing of Ron Goldman.)

3. One could argue that illegal aliens shouldn't get a damages award when the circumstances flowed partly from their own crime — illegal entry into the country. But while I'm not an expert on this corner of tort law, my sense is that this isn't the law. Perhaps tort lawyers can clarify this for me.

Some states bar criminal trespassers from recovering damages flowing from the property owner's negligence, and possibly even the property owner's deliberate acts taken in self-defense. But I'm not sure this would apply to people whose crime is illegal presence in the country, rather than illegal entry into someone's house. And in any event, I doubt that this immunity applies to a defendant's deliberate acts not taken in self-defense, for instance if I catch a trespasser and then proceed to beat him with no self-defense justification.

4. Perhaps Nethercott really didn't beat the illegal aliens, or perhaps he was acting in self-defense — but if he refuses to come to court to give his side of the case, we can't really figure that out.

5. I'm not sure whether it's good that the illegal aliens might get "visas that are available to immigrants who are the victims of certain crimes and who cooperate with the authorities"; but I don't know what the relevant rules are, and what their chances of getting the visas are.

I can see why one might want to have such rules in some situations, in order to encourage illegal aliens to come forward to complain about crimes. I can also see why one might not want to have such rules, in order to keep illegal aliens from profiting — by getting visas, regardless of whether they also get damages awards — from their illegal entry into the U.S. I really can't speak to this without knowing more about what the immigration laws here are.

Related Posts (on one page):

  1. Patriot Act:
  2. Rancher Whose Family Ranch Was Seized And Turned Over to Illegal Immigrants Whom He Allegedly Beat:
bythebook (mail):

The article doesn't explain why Nethercott failed to defend himself in court, but perhaps it was because he had been incarcerated by an executive order of Arizona Gov. Janet Napolitano, under the PATRIOT act. Very weird — why on earth would Nethercutt refuse to defend himself? Aren't reporters supposed to find out the answers to obvious questions like this, especially when they work for the New York Times, as Andrew Pollack does?

Also, I note that Morris Dees of the SPLC had this to say:

"When we got into this case, ranchers all along the border were allowing these types [i.e. Minutemen-type groups] to come on their property," said Dees. "Now, they're very leery of it, especially when they see someone losing their ranch because of it."

Dees seems to have no qualms about illegal aliens rampaging across ranchers' property, however.

I would ask Mr. Dees: if you were a rancher in southern Arizona, and illegal aliens were streaming across your property every day, — trespassing, littering, even entering your home, as happened to congressman Jim Kolbe's house recently in So. Ariz. — what course of action would you take? The federal government doesn't care, the police can't patrol your property 24/7 and refuse to check immigration status besides. Mr. Dees' lawsuit effectively leaves such ranchers with absolutely no reasonable course of action to prevent destruction of their property.

This is, to say the least, un-American, and needs to change.
8.19.2005 9:15pm
bythebook (mail):
Also, a press release on the SPLC website has this to say:

"The case dates to 2003. In March of that year Levia and Mancia, both Salvadorans, were among a group of immigrants traveling on foot when members of the anti-vigilante group Ranch Rescue captured and detained them. During their detention, Nethercott, struck Mancia on the back of the head and allowed his rottweiler to attack him."

This is *alleged* to have happened, and the jury was deadlocked on it, so Mr. Dees should not be announcing on his website that this is what in fact took place. Also, the SPLC website neglects to note that Mr. Nethercott detained the two illegal immigrant trespassers for less than an hour, and that both testified that Mr. Nethercott gave them blankets, food, and water after he let them leave. This doesn't sound like someone who "pistol-whipped" these two illegal immigrant trespassers.

Also, the two only bothered to tell anyone about their "pistol-whipping" *after* they learned they could apply for a special visa if they'd been the victim of a violent crime committed by an American citizen.

For this they are awarded a ranch worth $120,000? Expect to hear more of these cases, since you get more of the behavior you reward. And expect an *extremely* irritated response from the legal residents of Arizona.
8.19.2005 9:23pm
Brett Bellmore (mail):
To echo Bythebook, we do not know that Nethercutt "refused" to show up. Only that the "didn't" show up. It would be nice to think that defendants are never maliciously prevented from appearing in court, but more than a little naive.

Perhaps we'll learn in the appeal.
8.19.2005 9:24pm
Larry (mail) (www):

The article doesn't explain why Nethercott failed to defend himself in court, but perhaps it was because he had been incarcerated by an executive order of Arizona Gov. Janet Napolitano, under the PATRIOT act

A real American would have at least investigated this. Perhaps providing a citation to the text of the order. But because you are not a real American you did not.

But I will go one step further. I think that you made this up. The governors have no such power, and even if they did, he would have been able to defend such a lawsuit. Therefore, I don't think you are telling the truth.

Sine I think you lied about this, your quotes (and certainly your analysis) of Mr. Dees statement are suspect.

Oh, and Professor Volokh: these nuts are your friends.
8.19.2005 9:39pm
bythebook (mail):

I wish I had made it up. Governors didn't used to have such powers, but welcome to the Brave New World.

PS -- Google b4u speak, Lar!
8.19.2005 9:43pm
Brett Bellmore (mail):
The point, Bythebook's sarcastic remark aside, is that we do not in fact know that he "refused" to show up. Maybe, like Randy Weaver, they simply told him the hearing was on a different date. Could have been many reasons. The reporter doesn't appear to have inquired into the reason for his absence.
8.19.2005 9:44pm
Perseus (mail):
The judge issued default judgments for $850,000 &$500,000 for a pistol-whipping and "post-traumatic stress"?!? Are those amounts usual?
8.19.2005 9:44pm
bythebook (mail):

You also mention that you thought I "made up" Dees' press release.

Again, Google Google Google, pal, but here's the URL, easy to find since it's plastered on the front page of the SPLC's website:

8.19.2005 9:47pm
bythebook (mail):
It's funny (not "ha-ha" funny, but "holy shit" funny) that both Brett and Larry thought I was making up the fact that Nethercott was incarcerated by executive order of Arizona Gov. Janet Napolitano under the Patriot Act.

Unfortunately, it actually happened.
8.19.2005 9:52pm
Craig Oren (mail):
I thought it was clear from the story that Nethercott was convicted in the criminal case of possession of a firearm, and, because he was convcted of a felony in California, is now serving time. Did I misread? I do not know the state's procedure, but I believe that, in most states, prisoners are given notice of lawsuits and given a chance to appear to contest them.
8.19.2005 9:53pm
Brett Bellmore (mail):
I suppose conventional prisoners are. Are inhabitants of the Twilight Zone subject to the same rules?

Yeah, that IS scary, isn't it? I really did think it was a joke.
8.19.2005 9:59pm
bythebook (mail):
Yeah Brett, it's one of the scariest things I've read in a while. Be nice if the MSM would report on it, wouldn't it? Tell me again why I give money to Cato and the ACLU?
8.19.2005 10:01pm
Brett Bellmore (mail):
I would assume that, unless you're very naive indeed, you don't give money to the ACLU in the expectation that it will be used to defend the rights of gun owners. ;)
8.19.2005 10:04pm
Larry (mail):
The governor of Arizona's executive orders can be found here
. Your order isn't there. Yet another reason why I think that you lied.

Providing citations to tin-hat websites (that is, newsletters written by non-lawyer conspiracy theorists) is just as good as having made something up. You people are a riot, and explain why most lawyers no longer talk to the lay people except as a prank.

As a rule I do not use Google because anyone can put anything on the web. I would have expected an actual citation to the text of the order (from the Arizona state website) or something on Westlaw. But, as I said, you made it up. No citations. No text. No references to the AZ governor's website
8.19.2005 10:11pm
You most often get hit with a default judgment because you are served with a complaint and fail to file a response. It's not a case of being given a court date and if you get a flat tire on the way to court, wham, default judgment for failure to show up. Even if you're incarcerated, you can still file a response.

If you aren't properly served with the complaint, or you were physically unable to respond because the Governor threw you in the gulag, etc., you can move to set aside the default judgment.

Also, I can't claim to know the law of every state, but in general, even if the plaintiff is granted a default judgment, he still needs to prove his damages. In other words, you need to show up with medical bills, offer testimony, etc. You don't just get awarded whatever number is in the complaint, unless the claim is for a sum certain.

I wouldn't presume to question the accounts of the gentleman's incarceration pursuant to the PATRIOT Act, but the two links provided don't offer the most, uh, evenhanded account. I'm curious to know the rest of the story.
8.19.2005 10:15pm
Larry (mail) (www):
The Patriot Act thing is just lay babble. My hunch is one of these guys wanted to make a point or one of those nuts in Texas who thinks that they are beyond the jurisdiction of American courts.
8.19.2005 10:18pm
John Jenkins (mail):
The man is not locked up on any kind of executive order. He's in jail for being in possession of a firearm AFCF. He also conveyed the ranch to a member of his family to avoid execution of the judgment, which was thwarted by false conveyance laws. If you had READ the article you're criticizing, you might have noticed this line:

"The Salvadorans testified against Mr. Nethercott when he was tried by Texas prosecutors. The jury deadlocked on a charge of pistol-whipping but convicted Mr. Nethercott, who had previously served time in California for assault, of gun possession, which is illegal for a felon. He is now serving a five-year sentence in a Texas prison."

The fact that a jury didn't find beyond a reasonable doubt that this guy did what he's accused of is meaningless insofar as people describing it. That's a silly standard: O.J. wasn't convicted, but everyone knows he did it.

This was an intentional tort, so part of that 850k is likely punitive damages (one party settled out for 100k earlier).

It's not that hard to get a default judgment set aside in practice, though if the time to file motions to vacate had passed, on appeal the only challenge will be jurisdiction (and maybe proportionality).

The portion relevant statute to their immigration status appears to be this:

(U)(i) subject to section 1184(p) of this title, an alien who files a petition for status under this subparagraph, if the Attorney General determines that--

(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);

(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);

(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and

(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States;

(ii) if the Attorney General considers it necessary to avoid extreme hardship to the spouse, the child, or, in the case of an alien child, the parent of the alien described in clause (i), the Attorney General may also grant status under this paragraph based upon certification of a government official listed in clause (i)(III) that an investigation or prosecution would be harmed without the assistance of the spouse, the child, or, in the case of an alien child, the parent of the alien; and

(iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes; 8 U.S.C.A. § 1101

If they get Visas, it will be under INA sec. 101(U), and it seems to apply. This guy is a violent felon so I too find it difficult to sympathize with his plight.
8.19.2005 10:18pm
Larry (mail):
I don't “know” OJ did it. I like to think he did it because he is black and he killed white people but was acquitted by a black jury that didn't believe the words of a lying white cop , but I don't “know” that he did it. Anyways, in trashing this man's life, I guess justice was done. But, if OJ had been a corporation, you people would have nothing but sympathy for him.

It would be quite possible to change the standard of proof in civil trials to “beyond a reasonable doubt” but nobody seems to want to do that.
8.19.2005 10:22pm
It seems like Gov. Napolitano's alleged "executive order" and the Texas prosection would have to involve two separate issues, unless he was being extradited from Arizona to Texas or somesuch.
8.19.2005 10:27pm
Larry (mail):
And even then I don't see what the Patriot Act would have to do with it. But, again, a non-lawyer made those comments, so they need to be taken w/ a grain of salt.
8.19.2005 10:29pm
John Jenkins (mail):
Just as a federalism question: could the Patriot Act have empowered ANY governor to do ANYTHING in any event? Whatever powers governors have flow from their state constitutions and federal law would only serve to limit their discretion, not enhance it. Any conflicts specialists out there?
8.19.2005 10:37pm
Larry (mail):
A federal statute could, for example, require that certain federal official consult with state government, and “take someone into custody.” But this isn't what happened.
8.19.2005 10:41pm
nk (mail) (www):
As a general rule, prisoners do not get out of prison to attend any kind of trial, other than their own criminal trial or retrial, except on a writ of habeas corpus issued because they are necessary parties in a case in which the state has an interest (usually the disposition of their abused or neglected children) or "compulsory process" Sixth Amendment witnesses. As for the guy losing his ranch: The only universal malum in se is stupidity.
8.19.2005 11:02pm
Larry (mail):
Well, it doesn't even look like he appeared, so the question of whether he would be able to attend a trial is moot.
8.19.2005 11:03pm
nk (mail) (www):
John Jenkins,
I am treading on constitutional experts' territory here but I believe that every state has the authority, if not necessarily the obligation, to enforce every federal law.
8.19.2005 11:24pm
bythebook (mail):

I'm not abandoning you -- I'm ordering Chinese food here with my *hot* girlfriend (Larry probably doesn't believe any of this!). But anyway, she worked late tonight and will be asleep in a couple hours, so I'll post my take on all our issues then.
8.19.2005 11:36pm
John Jenkins (mail):
nk, that is sort of (in a general way) true. But my question is whether a federal statute may confer a positive power on the governor of a state that the state's constitution does not give the governor.

I know that Congress can't force the states to do its bidding (though it may bribe them). I just don't know whether this supposed (and nonexistant) Patriot Act power would even be Constitutional. Sadly, it's only been 2 years since Constitutional law, but I don't remember covering this particular issue and haven't researched it myself.
8.19.2005 11:40pm
Duncan Frissell (mail):
Maybe Mr. Nethercott couldn't go to court because he lacked government-issued photo ID. How has the judicial system (outside the criminal realm) dealt with those who can't enter its buildings because they lack ID? Or maybe he was excluded from the building because he was continually given to making racist, sexist, etc. remarks and the county was required to exclude him to avoid creating a hostile work environment. Generally a business is required to exclude visitors who create such environments.

I guess he should have used a quarterstaff. Even felons can possess them in America.

I've always been amused by the fact that many Americans who fear the Patriot Act including the so-called library provision, have no trouble with civil litigation in which anyone can sue you for anything and force you to answer virtually any question they want: purchases, reading history, sexual contacts, as well as force you to show up in court to defend yourself for the most casual acts. I can see the argument for such invasions in time of war (even though I may disagree) but I can't see it for purposes of settling interpersonal disputes.
8.19.2005 11:59pm
Adam (mail) (www):
Duncan, your description of the civil litigation system bears no resemblance to the one in which I practice.
8.20.2005 12:29am
Stephen M (Ethesis) (mail) (www):
What is interesting is that the Plaintiffs settled for $120,000.00 on a much larger judgment. I'm curious about that as well as the rest of the facts (rather than suppositions).

I'm also curious about the judge who entered the damages he did. Were any of the damages punitives?
8.20.2005 12:54am
John Jenkins (mail):
Duncan, he was convicted of carrying a firearm after former conviction of a felony. He once had the right to carry a weapon and he gave it up (some would call it abrogating the social contract). He is IN JAIL FOR A CRIME. That said, he could have answered through his attorney had he so chosen (unless he didn't have notice, in which case the judgment is void). Why exactly are we defending a convicted felon here? The rights you're talking about are those he had stripped from him for committing a crime (keep in mind he had a felony conviction BEFORE this incident, and a violent one at that, in California).
8.20.2005 1:02am
John Jenkins (mail):
Stephen, they didn't necessarliy settle. They might have, if there is some kind of settlement agreement. What they probably did was execute on the farmhouse, but they still have a judgment for the rest of the amount, it's just not worth anything.
8.20.2005 1:06am
I've never been to a courthouse, state or federal, where you need to show ID to get in. The constitutionality of such a requirement would be questionable. I think our friend Duncan is just trolling a bit, trying to get a rise out of the legal types.
8.20.2005 2:03am
bythebook (mail):
OK, the Orange Chicken was outstanding, and the *HOTTTT* gf is asleep. Time to untangle some issues.

1) Craig Oren is right that Casey Nethercott (CN) is now in jail b/c of a charge of gun possession. Whether a person deserves to spend five years in prison for merely *possessing* an unregistered weapon is an issue for another day, but as a libertarian...

2) Larry, don't bust on my tinfoil-hat sites! A lot of times it's the only truth you can get, bro! OK, if you don't trust my links, that's fine -- but aren't you at least *curious* to know if Gov. Napolitano hauled CN to prison w/o charges under the PATRIOT Act? You seem incurious. I'd love for the NYT reporter (Andrew Pollack) to report on this. Y'know, ask some questions of some people?

3) We've gotten sidetracked a bit, but the core question is why a) illegal alien b)trespassers suddenly have the standing to sue someone defending their private property. Really, now -- they spent 45 minutes on this ranch, got -- by their own testimony -- food, water, and blankets from the guy, had a very good reason for making up the pistol-whipping thing -- and suddenly they're a) legal and b) OWN the fucking ranch? And you guys are OK with this? There's no proof that he attacked them in any way -- a jury was hung on it -- but there's plenty o' proof that they a) entered the country illegally and b) trespassed on private property. At a minimum. And this means A) hands his $120,000 ranch over to B? WTF?

Eugene? Help me out, bro. This simply can't be right in America.
8.20.2005 2:23am
bythebook (mail):
Incidentally, I'd love for someone to take me up on my question: if you're a ranch owner in rural Arizona and you find a group of illegals -- or *anyone*, for that matter -- on your property, what would you advise them to do? The Feds won't do dick, and the police can't patrol your property 24/7, and aren't allowed to ask immigration status. So whaddya expect ranch owners there to do?
8.20.2005 2:27am
bythebook (mail):
Looks like those two illegals probably weren't pistol-whipped after all, according to two witnesses:

** "They were treated with kid gloves," Foote said, noting that pictures were taken of the couple wrapped in a blanket they were given. "We transported them in a van, rather than having them walk across snake-infested property."

A French freelance photographer who was at the scene, on assignment, corroborated Foote's version of events.

Eric Boye, who is working with the Gamma News Service, said he was very surprised at the charges, noting the man was smiling to his wife after Sutton gave the couple food and water, along with the blanket.

"They were treated with humanity," said Boye, who took photos of the event.**

So, if the two Salvadorans lied, which looks probable, then what happened is this: two illegal aliens, having illegally crossed the US-Mexico border, trespassed onto private property, where they were apprehended by an armed US citizen. This citizen treated them "with humanity," according to an impartial witness, and it's not in dispute that the two were given food, water, and blankets. They were detained for less than an hour.

The illegals then invented a phony story that the US citizen had pistol whipped them, which got the American sent to prison (for gun possession). The illegals then filed a civil claim against the man who gave them food, water, and blankets after they trespassed onto the ranch he was defending, and were awarded $850,000, which means they are now the owners of the ranch they trespassed onto.

This won't be tolerated.
8.20.2005 4:19am
bythebook (mail):


Here's an article document how the illegals' story was likely bogus, and how the ranch owner had tried asking the authorities to defend his property for years, and they hadn't. So if the cops won't defend your property and the federal government won't stop this invasion, I ask again: what recourse does a property owner have besides armed apprehension of those who trespass onto his property?
8.20.2005 4:26am
bythebook (mail):
OK, now I'm convinced the Salvadoran couple just awarded a $120,000 ranch was lying.

Here is a link to the French photographer's written, sworn testimony of what he saw in this case. Note that the photog (Eric Boye) was present at all times, since he served as a translator between Ranch Rescue and the illegals:

A quotes:

"I assert that Ranch Rescue and (ranch owner) Joe Sutton didn't use in any case and at any time violence or brutalities."

This should not happen in America. EVER.
8.20.2005 4:53am
mikeunique3222 (mail):
It has always struck me, as a non-attorney, that the instant death penalty aspects of forfeiture are too severe. There should be a stiff fine, which should accellerate in the face of continued resistance by the defendant, but to automatically grant whatever remedy that is requested by the plaintiff is ridiculous. There are a lot of Americans who don't have any experience with the legal system, don't have or know any attorneys, and who might ignore a complaint or just bury their heads in the sand. Some sort of escalating penalty is more appropriate. This is especially the case the way litigation is overused these days.
8.20.2005 10:04am
It's interesting that Nethercott was willing to fight illegal aliens with weapons, but not with court papers.
8.20.2005 10:18am
Mahan Atma (mail):
"OK, the Orange Chicken was outstanding, and the *HOTTTT* gf is asleep."

The quality of comments on this site has gone way downhill.

"Time to untangle some issues."

No kidding.
8.20.2005 10:27am
Daniel Chapman (mail):
Also seriously concerned about the comments in this thread... immigration threads tend to bring out the worst in people (ask Malkin), but still. Between Bythebook's language and larry's condescending sarcasm, I really don't feel like I'm reading anymore...

I guess moderating standards are the perrogative of the poster? There's a huge difference between the standards on this thread and on Orin's earlier discussion of 4th amendment rights.
8.20.2005 10:57am
roy solomon (mail):
Bythebook, you stated several times
Whether a person deserves to spend five years in prison for merely *possessing* an unregistered weapon is an issue for another day, but as a libertarian...
, I think a little accuarcy is in order. I did not see anywhere wether the weapon was registered or not. He was convicted of a violent felony and no longer has a right to possess a gun. Sounds like more than a technical violation to me.
8.20.2005 11:00am
Craig Oren (mail):
just a not-so-technical correction: Nethercott isn't in jail because of a *charge* of gun possession, but rather because a jury *convicted* him of illegal gun possession and because he already had a felony conviction. He's not being jailed just on someone's say-so.

As for the default, the righteous indignation seems misplaced. If you're sued, and you make no attempt to defend yourself against the suit, you lose. As has been pointed out here, a default judgment can be set aside after it's entered. Nethercott apparently made no attempt to do that.

There are ways of defending your property against trespassers without violating the law. For one thing, any force you use must be reasonable. The question *here* is whether the force went beyond being reasonable. We don't know the answer because we don't know exactly what Nethercott did, If he had answered the civil suit, we might know better.
8.20.2005 11:09am
Eugene Volokh (www):
Moderating standards are a function of how busy the poster is and how long the thread is. If by the time the moderator gets to read the thread there are 30 comments, and some of the bad ones are entangled with the good ones -- the good ones respond to the bad ones, so just deleting the bad ones will make the good ones hard to understand -- the moderator might just throw up its hands. That's made extra likely when he's got an infant and a toddler to look after.
8.20.2005 11:35am
Larry (mail):
Bythebook, No. I don't believe anything that you say. Most of us have spent at least 10 years practicing law, and when non-lawyers start spouting tin-hat nonsense, and referring to legal documents (such as the executive order) that does not exist it is good for only one thing: entertainment. Some lawyers choose to humor people like you. The rest just laugh.

You also posted more than twice in a row.

Anyway, unless and until you can present the text of that executive order, you are just making it up and reading tin-hat websites.
8.20.2005 11:37am
Daniel Chapman (mail):
Good point, Mr. Volokh :)
8.20.2005 11:42am
bythebook (mail):
OK, this'll be my last post on the issue, which Larry will probably be glad to hear! A few final points:

1) Sorry if my language offended anyone -- this site's comments sections are a little more, uh, civil than one's I'm used to. I'll tone it down in the future...

2) Lar, World Net Daily is hardly a "tin hat" site. There looks like significant evidence that the couple made up their story. Don't know whether you looked at my link to World Net, but there's a six-page, handwritten statement from the French witness. The Salvadoran couple's story looks suspicious from here. As others post, it's a shame Nethercott didn't show up to defend himself, though I seem to be the only one here curious as to why he didn't do so.

3) Craig writes: "There are ways of defending your property against trespassers without violating the law." Well, what are they? If you go to the article at World Net, it's clear that the ranch owners (Joe and Betty Sutton) had contacted the police and Border Patrol repeatedly over the years, but the problem hadn't been solved. Naturally the force they use must be reasonable, but it sounds like it was in this case.

4) This guy Nethercott does sound tightly-wound, and not someone I'd want to be neighbors with, but I'm also curious what his previous felony conviction was for. None of the articles I can find mentions it.

Anyway, that's it. Thanks to those who commented on my points, like Criag Oren.
8.20.2005 2:19pm
Larry: You seem to say that all non-lawyers are valueless.

Sheesh. I now am wondering if maybe Shakespeare had the right idea.
8.20.2005 2:29pm
I now am wondering if maybe Shakespeare had the right idea.

You mean when Shakespeare was right when wrote that killing the lawyers would allow a leader to rule lawlessly?

On a serious note, yes, we lawyers can be arrogent jerks. But non-lawyers may have the same problems joining the conversations on this site that many lawyers would have at a site focused on, say, auto mechanics, math, or physics.

That said, more lawyers need to learn to write in a way that a) non-lawyers can understand; and b) is not insulting to non-lawyers.
8.20.2005 3:05pm
John Jenkins (mail):
Petra, while he was a little harsh, Larry's point is a good one. Executive Orders are published, whether in the Federal Register for Presidential Orders, or some state publication. If the purported executive order actually existed, then there should be a citation and I should be able to find the document. Secondary popular sources are generally unreliable when interpreting legal documents. Internet sites with axes to grind are less reliable than general sources.
8.20.2005 4:10pm
Brian Dell:
re John Jenkins' comment "keep in mind he had a felony conviction BEFORE this incident",
here in Canada a criminal record can generally not be put before a jury since it would be prejudicial to the accused. Is this not the case in the US?
8.20.2005 6:20pm
Daniel Chapman (mail):
When an element of the crime is a prior conviction, not only can they bring it in as evidence, but if they don't, the guy can't be found guilty.

However, if a prior conviction is NOT an element, then yes... it is inadmissible because it would be prejudicial.
8.20.2005 6:29pm
John Jenkins (mail):
Brian Dell, A conviction is not admissible substantively, though it is admissible for credibiity if the defendant takes the stand.

Where it is an element of the crime, D. Chapman is correct that it must be admitted to show that element, otherwise you couldn't ever convict anyone of the crime. The defendant can stipulate to the former conviction, if the defendant thinks it might be prejudicial, but the prosecution doesn't necessarily have to accept the stipulation and might be entitled to present the evidence. See Old Chief v. United States, 519 U.S. 172 (1997).

All of you are ignoring the fact that the immigration statutes permit the granting of a visa, but does not require it. It's an exercise of discretion and is rarely done but is primarily in place to stop people from bringing in illegal workers and then abusing the illegal workers who might be afraid to report the crimimal activity for fear of being removed from the United States. Finding "substantial physical or mental abuse," is not an inconsequential burden.
8.20.2005 7:13pm
To be fair to Mr. Nethercott, the criminal jury hung, so there is a fair question of whether he truly crossed the line. Yes, the burden of proof is different in a civil case, but the criminal non-verdict shows that it's not 100% clear that Nethercott was wrong.

Also to be fair to Nethercott, defending oneself in a civil case is daunting, especially from prison. Access to prison libraries varies dramatically from prison to prison, so it's unclear whether he could have done much pro se.

Maybe he could have afforded a private lawyer. Maybe not. We don't know his financial situation. His land might have been worth enough to back up a loan for a lawyer. He might also have been able to sell part of the land. The article doesn't give enough information to answer.

So, after reading the comments, the only thing that's clear is that very little is clear.
8.20.2005 8:23pm
Brian Dell:
John: I can appreciate the rationale, but I see a parallel to the evidence exclusion rule in that the point seems to be to deter second parties from mistreatment of first parties by allowing the first parties to negatively impact third parties should the second parties behave inappropriately.

If police seize evidence in a manner that violates an accused's rights, it doesn't matter if that evidence would indisputably convict the accused. It is not even considered. When there is no link between the illegality of the evidence acquisition and the reliability of the evidence, one could proceed to try on the basis of the evidence and then charge the law enforcement officials separately, but instead the officials are essentially punished by forcing them to let their collars walk. As a third party, I probably suffer more from the corrective remedy (being exposed to a unconvicted criminal whom we may know is certainly guilty by virtue of the illegally obtained evidence) than the police do for their abuse of the rights of said criminal.

Similarly, here, it is in my interests that visa applications be dealt with in a manner that reflects general policy objectives. When a particular application is fast-tracked because some other private party abused the applicant, I, as the ordinary citizen bear the cost of the consideration of the particular and the associated deviation from applying the generalized principles.

In sum, I see a parallel between exclusing evidence and offering visas in that the policy rationale for both is rather diminished by the existence of civil court remedies (and the reality of groups like the SPLC to assist with the aggressive prosecution of those civil remedies).

All this to suggest that there are a number of areas in American law where having a rather abstract right of some sort violated can be the best thing that ever happened to you in terms of the concrete disposition of your fate.
8.20.2005 8:37pm
Brian Dell:
re the difficulties of defending a civil case, I can't feel much sympathy for Nethercott on that particular aspect, since his failure to file even a simple "Plaintiff's claims have no merit" statement of defence meant the issues of mounting an evidentiary defence never arose.

Larger issues for me are (1) an $850K judgment seems very high even if the judge only had one side of the argument to go on. Assuming it is true the confinement lasted less than one hour and the judge knew that, it must have been a terrible experience indeed to receive compensation at an hourly rate in excess of $850K (actually, $1.3M+ including the other defendent). The SPLC concedes no bones were broken, etc. A response to that may be that damages were not solely compensatory, but that brings me to issue (2) which is that there was no link between the civil and criminal penalties such that the 5 year prison sentence, which may be linked to ('but for') the same incident, apparently did little to mitigate the punitive damages for the battery tort, or, alternatively, the presence of the punitive damages apparently did little to mitigate the criminal penalty.
8.20.2005 9:00pm
John Jenkins (mail):
I'm not sure this analogy works. First, the exclusionary rule evolved as a means to enforce the Fourth Amendment because the other means (civil remedies against violators) were considered ineffective at deterring illegal conduct.

I haven't heard anything about this visa application being fast-tracked; considering how long the article indicated the process would take, it seems like it is on schedule to me. What I take you to mean, though, is that you disagree with Congress's policy choice to grant a special kind of visa to victims of crimes at the discretion of the Secretary which would allow the victims of those crimes to remain in the U.S. legally far before they might otherwise under the regular system.

It is important to note that this is NOT an immigrant visa, it is a non-immigrant visa. INA § 101(a)(15) lists those people who are not considered immigrants (it is easier to get a non-immigrant visa than an immigrant visa for the most part unless you are from certain countries). People with certain undesirable charateristics are still not going to be permitted to enter under this rule because they are considered "inadmissible."

The analogy to the exclusionary rule is strained especially because that rule hurts law enforcement, while the 101(a)(15)(U) visa is designed to help law enforcement. It's a carrot for people to help bring down criminal importation/use of foreign nationals. Navigating the INA is like walking around in Minos's basement.

Neither of these remedies is exclusive and one can still pursue civil actions, but in the case of the Fourth Amendment, you're going to run into the wall of qualified immunity (the police are generally immune to suit for actions taken in good faith while carrying out their duties).

Assume a scenario where A is an undocumented alien who is severely beaten by B. B reports the crime and the state prosecutes A with B's cooperation. B is permitted to remain as a nonimmigrant for a period of time.

Now, assume an alternative scenario were A beats B, who does not report A because B believes that B will not be permitted to remain in the U.S. B remanis illegally (or is removed for some other reason) and the state cannot prosecute the violent A.

You, as a third party would consider yourself better off in which scenario? (ignore the knowledge/deterrence problem for the purpose of this hypothetical).
8.20.2005 9:04pm
Craig Oren (mail):
I looked up stories about the case on Westlaw. (Copyright restrictions forbid me from pasting the stories here.) The main coverage of the trial came from the Fort Worth Star-Telegram. Interestingly enough, a former ACLU lawyer acted as counsel for Nethercott. He called it a case of mistaken identity. The jury, which was largely Hispanic, split 7-5 in favor of conviction, and was dismissed after five hours of deliberation. Interesting enough, it appears that Sutton, the owner of the ranch where the alleged incident occurred, had a policy of not allowing the Border Patrol to be on his land. Apparently this is common along the border.

I saw no mention of executive orders, Governor's warrants, the Patriot Act, etc. It seems though that Nethercott had been imprisoned in Arizona on a federal charge of threatening border patrol agents. The judge denied him bail, and he served five months before a jury eventually acquitted him.
8.20.2005 10:28pm
Brian Dell:
Clearly the first scenario is preferable. But it doesn't follow that an after-the-fact indulgence of particular law enforcement requests that would facilitate their prosecution efforts should be broadened into a policy that creates a before-the-fact incentive for illegal aliens to be criminal complainants. The civil remedies seem to already be quite significant. The larger context here is that these litigation incentives extend to all 6 billion people on the planet; you just need to get yourself into US territory. A matching disincentive for private citizens to effectively oppose illegal immigration and trepassing was furthered by this case. The very strong stand against the application of private coercion, whether that private coercion should take the form of social norms against deviant behaviours or, as here, the infliction of largely mental suffering on illegal alien trespassers, all serve to infuriate conservatives with the legal system.

re the 4th, I admit this is now a bit off topic, but I note that there is the additional possibility of civilian review boards, which could censure a cop, and in any case to sacrifice the search for truth role of a trial for these efficacy considerations is a heavy sacrifice.
8.20.2005 10:51pm
John Jenkins (mail):
A trial is not a search for truth. It's about evidence and what you can prove, not what really is. If it were a search for truth, it would be unworkable because one could only be convicted on 100% certainty.

I was using the two scenarios to show that I don't believe the two situations are comparable.

[off-topic aside on the exclusionary rule]

The chief problem with a civilian review board is this: The cops bust into a house without a warrant and find a meth lab. In the hypothetical, we have no exclusionary rule so the evidence is admitted and the lone occupant of the house (its owner) is convicted. Now he wants to file some kind of case with a review board or a court (not having any injury in fact until after the conviction) and goes in as a convicted felon.

Do you really believe that the board or the judge or whomever will find for the convict? I don't, and though the costs of the exclusionary rule are high, I believe it is justified by the fact that alternative enforcement is likely to be ineffective. However, less cynical people than I might believe that the alternatives are better, I admit.
8.20.2005 10:59pm
David M. Nieporent (www):
Just to elaborate on one point. Bythebook: you may be "convinced" based on reading a French guy's affidavit that the Salvadorans are lying, but

1) When this went before a jury, they obviously weren't "convinced," since they deadlocked rather than acquitting him.

2) When it was raised in a civil proceeding, the judge had no choice but to find in favor of the Salvadorans, since Nethercott didn't defend himself. (It's not a question, no matter how many times you say it, of "showing up." Unlike with a criminal charge, one does not need to physically appear in court to oppose a civil complaint. All one has to do is mail in an Answer.)

Not to sound like Larry above, but most of the time, the nonlawyers screaming about being mistreated by the legal system are not people who were actually screwed by a corrupt system, but people who lost because they didn't even bother to make the most rudimentary effort to follow the rules.
8.20.2005 11:43pm
Perseus (mail):
"Not to sound like Larry above, but most of the time, the nonlawyers screaming about being mistreated by the legal system are not people who were actually screwed by a corrupt system, but people who lost because they didn't even bother to make the most rudimentary effort to follow the rules."

Were the immigrants making a rudimentary effort to follow the rules by entering the country illegally? Oh sorry, I'm just a non-lawyer.
8.21.2005 1:05am
CharleyCarp (mail):
If the immigrants were deported summarily, and went around complaining that it isn't fair, then I suppose their efforts to comply with the rules would be evident. As it is, Mr. Nethercott, surrendered all possibility of making the various arguments anyone might think of by failing to mail a letter to the court. Inasmuch as he's in a place teaming with customers of the legal business, I'd guess that his failure was knowing.
8.21.2005 1:21am
John Jenkins (mail):
There is no rule of law that one who is in the country illegally cannot be the plaintiff in a lawsuit. That's just not the law.

Whether they were in the country illegally is irrelevant as to whether Nethercott committed a tort against them. He might have had an affirmative defense because one is generally privileged to use reasonable force to eject trespassers, but he chose not to assert that defense, and in any even pistol-whipping would not likely be reasonable force against someone who was unarmed.

Perseus, that's the generally accepted interpretation, whether you like it or not. Don't try to lump me in with Larry (I didn't start out in law school, you know). I don't think you have to be an English professor to comment on literature, nor must you be a lawyer to comment on the law (nor for that matter a philosopher to comment on philosophy: we all do philosophy every day whether we call it that or not).
8.21.2005 2:21am
Eugene Volokh (www):
This thread has been getting a bit repetitive and digressive, so I pruned some of the comments that seemed to be (1) a personal quarrel by and with Larry (possibly caused by Larry's sarcasm and misinterpretations of it), (2) interpretation of Shakespeare, a subject that's at best tangentially related to this case. I may well have over- or underdeleted, but summary justice, dispensed at 4:45 am with a baby babbling in the background, is rough justice.

Let's try to stick on topic, and to avoid needless repetition.
8.21.2005 8:48am
It would be helpful to have more information on exactly what efforts Nethercott did or could have taken to defend the civil suit. Without those facts, we're all just guessing.

As to making a "rudimentary effort to follow the rules," it may have been practically impossible from prison. Yes, he could have filed something saying he denied the charges, but then how would he deal with the motions and discovery that logically follows? He might not have even had access to the civil rules or local rules.

Many well-trained lawyers who work only a few feet away from a law library have little idea how daunting the legal system is for a prisoner.
8.21.2005 1:37pm
KW (mail):
Without having even looked at the pleadings, I think the answer to "why did he get $850k?" is obvious -- it's probably the amount they asked for in the Complaint.

Is that high? Perhaps. The prayer for relief number in a Complaint is a number that is solely drawn up by the plaintiff and his attorney. If I sue you, my Complaint will ask for a million dollars. (Various reasons for this, including wiggle room to come down to a lower figure when settling). And if you're really dumb enough not to show up for court when I'm asserting $1 million of damages against you -- well, it's my word against no one's, and the default kicks in.
8.22.2005 2:48am
Tom Perkins (mail):
And in light of the unimpeachable video evidence and testimony of the videographer that he did nothing to the immigrants which was even an imposition, let alone an assault or even a slight--that this default judgement has not already been overturned is evidence we have no justice system, we have a legal system.

I'm sure that makes Larry happy.

Yours, TDP, ml, msl, &pfpp
8.22.2005 9:38am
What "unimpeachable video evidence"? Maybe that's sarcasm, but given the extreme views about this case, it's hard to distinguish between sarcasm and a silly, unsupported statement.

Given the paucity of facts about the civil case, especially about why Nethercott defaulted, it's hard to take seriously any argument that one side is clearly right or wrong.
8.22.2005 9:56am
Tom Perkins (mail):
Public_Defender wrote:

"What "unimpeachable video evidence"? Maybe that's sarcasm, but given the extreme views about this case, it's hard to distinguish between sarcasm and a silly, unsupported statement."

That video exists of the encounter in question which is almost contiguous with respect to time, and where the tape wasn't rolling the videographer, a French journalist, supplied testimony to the effect the alleged abuse didn't happen. Neither was any physical evidence of any such abuse existent on the bodies of the illegals when they were taken into custody. There is no and never has been any grounds on which to give any credence to the illegal aliens claims.

Public_Defender, I note that you wrote: "It's interesting that Nethercott was willing to fight illegal aliens with weapons, but not with court papers."

Do you have any evidence the Nethercott was willing to fight illegal aliens with weapons? Was that a silly, unsupported statement?

Yours, TDP, ml, msl, &pfpp
8.22.2005 10:06am
My comment about Mr. Nethercott's resort to use of force was based on the aliens' stories. In later posts, I conceded that I didn't know what happened. As I've said above, there is not enough evidence in the articles to conclusively prove who is telling the truth.

Seven jurors in the criminal case apparently believed the aliens' story. Testimony is evidence. The lack of physical evidence is interesting, but not conclusive--you can go to death row on testimony alone (there may be a state or two where this is not true). Since we can't know for sure what happened when the tape was off (we have only testimony to go on), we can't know for sure what happened.

This case is a swearing contest. And since I haven't seen (or even read) the testimony, I'm loath to guess who is telling the truth.

It's a pity there was no civil trial. It would have been useful to have a full and fair airing of what happened.
8.22.2005 11:18am
Tom Perkins (mail):
"As I've said above, there is not enough evidence in the articles to conclusively prove who is telling the truth."

I think not merely a "reasonable doubt" but also a "preponderance of the evidence" standard is met with respect to Mr. Nethercott's innocence. I'll generously go so far as to grant that it is not in and of itself evidence of bias to feel that a "prima facie" standard of evidence is not met.

I must insist that given the level of proof already existing in court records that Mr. Nethercott's accusers have no grounds for their suit, that the fact the default judgement yet stands is proof justice has not been done for him, whatever failings he may have in not contesting the suit.

"It would have been useful to have a full and fair airing of what happened."

There was such an airing. What would be more interesting to me is the candid opinions of the jurors who thought unsupported assertions of abuse had any merit in the absence of evidence that it happened, and in the presence of exculpatory video and the testimony of an uninterested 3rd party.

That'd I'd find interesting.

Yours, TDP, ml, msl, &pfpp
8.22.2005 12:02pm
One of the biggest myths that non-lawyers have about the legal system is that testimony is not evidence. I can't tell you how many times I've heard from appellate clients, "they didn't present any evidence against me." Then I get the transcript, and see that several people testified that they saw my client do it. Some of that testimony is more reliable than others, but defendants get convicted based on testimony alone all the time. And the jury is entitled to pick which witnesses it believes.

I, too, would be intertested in hearing the criminal jurors explain their votes. It would be more informative than anything else I've seen about the case.

As to the default judgment, we can't say whether that's an "injustice" without hearing why Nethercott did not fight it.
8.22.2005 12:33pm
Tom Perkins (mail):
I wrote: "absence of evidence"

I should have said, "absence of physical evidence". If you are pistol whipped and otherwise beaten, which I believe was one of the claims made, there should easily be obtained photographic evidence of it.

Yours, TDP, ml, msl &pfpp
8.22.2005 1:14pm
A. Nonymous (mail):
Governor's warrants were not created by the Patriot Act.

It refers to cases where a person charged in State A for committing a crimt is found in State B. State B issues a governor's warrant based on the warrant in State A.

In the case of Arizona, that authority has existed since at least 1977


A.R.S. § 13-3847

§ 13-3847. Issue of governor's warrant of arrest; its recital

If the governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.
8.22.2005 1:18pm
I should have said, "absence of physical evidence". If you are pistol whipped and otherwise beaten, which I believe was one of the claims made, there should easily be obtained photographic evidence of it.
Sometimes yes, sometimes no. Because I wasn't at the trial, I won't concede that there were no photos, but there are plenty of reasons why an illegal immigrant would not run to the hospital or a photographer after receiving bruises. Further, many bruises don't show until at least a day after a wound is inflicted. Finally, you can be hit in places that don't show much.

Bottom line, Nethercott had the chance to make your argument to a jury, and seven of the jurors still ruled against him.
8.22.2005 2:07pm
David M. Nieporent (www):
Tom: I think not merely a "reasonable doubt" but also a "preponderance of the evidence" standard is met with respect to Mr. Nethercott's innocence.

Tom, as I already pointed out above, several jurors who actually heard the evidence (that means sitting in court, listening to people testify under oath, seeing any physical evidence, etc., rather than relying on websites and newspaper coverage) thought there was sufficient evidence to convict him beyond a reasonable doubt. Nobody can stop you from disagreeing, but it's not clear why we should give your views credence over theirs.

None of that has to do with the default judgment, which is the result of civil case, of course. In the civil case, for whatever reason, Nethercott presented no evidence. The evidence against him might be weak, might be easily rebutted, but he didn't do so. You can claim until you turn blue in the face that the evidence in the criminal case could disprove their claims, but that's completely irrelevant. Only what's presented in court counts.
8.22.2005 6:04pm
They sad thing is that our legal system does need to change... If you are not a legal resident of the US, then you should not be allowed to file a lawsuit... Regardless... You should be exported...

If an illegal files a suit against you, you shouldn't have to go to court because the case shouldn't be allowed...
8.22.2005 11:25pm
I am outraged about this 'civil judgement' giving american owned property to scumbag illegal immigrants. The judge in this case must be a socialist. Illegal immigrants have no rights, they are lawbreakers and should be kicked right back to where they came from !!
8.24.2005 12:42am