Latest / Ask the Lawyer / 04/24/2025 Ask the Lawyer with Harvey Peyton

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04/24/2025 Ask the Lawyer with Harvey Peyton · Ask the Lawyer

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Speaker 3: Fight for your rights when you need action.
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Speaker 4: Count on us. What the power of patron on your side,
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Speaker 5: Of page, and a very pleasant good morning to you. You
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Speaker 5: can put the power of patent on your side this morning.
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Speaker 5: You can give us a call this morning. Three's are
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Speaker 5: a four three four five fifty eight fifty eight? Yes,
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Speaker 5: that number is correct. Three zero four three four five
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Speaker 5: fifty eight fifty eight. Why you might ask, Well, Harvey
1:06
Speaker 5: Payton is here from the Paton Law Firm. I'll let
1:08
Speaker 5: him tell you we finally got you some new dicks.
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Speaker 6: All right, it's unbelievable for the folks who there's going
1:13
Speaker 6: to be a television feed from this studio, as I understand,
1:15
Speaker 6: in the near future, but not today. And this is
1:18
Speaker 6: my first exposure to the new studio. It is phenomenal.
1:22
Speaker 6: It's out of this world. I see on the wall.
1:24
Speaker 6: You've got a big logo for West Virginia Outdoors program
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Speaker 6: that the Payton Law Firm has sponsored guys for probably
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Speaker 6: a decade or better. Absolutely, and we can now take
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Speaker 6: direct calls. So if you're listening and you have a
1:38
Speaker 6: question about the law or about any legally related for instance,
1:42
Speaker 6: public event or occurrence, just call in and we can
1:47
Speaker 6: take your calls right here on air. Now there's no
1:49
Speaker 6: intermediary And it's just great to be here. That they said,
1:53
Speaker 6: it is a great good morning. The traffic was a
1:55
Speaker 6: bit congested coming across the bridge, but it was just
1:59
Speaker 6: it wasn't bad. Sit there in the car and you
2:02
Speaker 6: just resign yourself to the fact that's going to take
2:04
Speaker 6: a little while and look around at this beautiful sunrise
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Speaker 6: and the nice calm weather and think, man, I'm just
2:12
Speaker 6: one of the luckiest people in the world to be alive,
2:14
Speaker 6: to be coming here like we have for the last
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Speaker 6: twenty six years, going on twenty seven now and participate
2:21
Speaker 6: in this show. Listening now, I've spent a lot of
2:23
Speaker 6: time still in the car. You hit a home run
2:27
Speaker 6: with the Noon Show. It appears to me you've got
2:30
Speaker 6: Dave al and Amanda bearon On. You know, two icons. Well,
2:34
Speaker 6: I don't think Daves reached icon status yet, but he's
2:37
Speaker 6: on his way.
2:37
Speaker 4: He's efforting.
2:38
Speaker 6: He's not the dean maybe like the second Lieutenant of radios.
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Speaker 6: Nothing general, but that's COVID. Hey, listen, we had a
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Speaker 6: really an active couple of weeks. You know, tom My
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Speaker 6: oldest boy, who's the other Peyton in the Peyton Law
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Speaker 6: Firm and really the best lawyer under fifty that I
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Speaker 6: would ever tell anybody to dire. He just does such
3:00
Speaker 6: a wonderful job with injury claims, disability claims, dealing directly
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Speaker 6: with the courts and the public and here locally, and
3:09
Speaker 6: we take great pride in that. You know, in our
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Speaker 6: office at the Peyton Law Firm in nitro Ill we
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Speaker 6: hear about twenty minutes from downtown Charleston and maybe fifteen
3:17
Speaker 6: minutes from downtown Hurricane Cross Lane, Saint Albans. But our
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Speaker 6: practice is regional, but it's a big region, most of
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Speaker 6: the southern coal fields, southeast Ohio, all the Kanaal Valley
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Speaker 6: up to Fayette down to Mason Cable. So if you're
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Speaker 6: listening before we dial up, to call in and go
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Speaker 6: online to our website Peyton Lawfirm dot com, or you
3:44
Speaker 6: can call us at three oh four seven five five
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Speaker 6: fifty five fifty six, or stop by. We have a
3:50
Speaker 6: really nice welcoming office at twenty eight oh one First
3:53
Speaker 6: Avenue in Nitro. If you've suffered a loss, might be
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Speaker 6: you've got a dispute now with an insurance carrier about
3:59
Speaker 6: covery as you're a claim or a life policy that
4:02
Speaker 6: won't be paid on. Or if you've suffered an injury
4:05
Speaker 6: at work, something you feel like you have a claim
4:09
Speaker 6: potentially for social Security disability or an automobile accident or
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Speaker 6: any other personal or financial injury. We can't tell you
4:17
Speaker 6: who to hire, or we can't spend a lot of
4:18
Speaker 6: money because that just breeds itself on tv ads. But
4:24
Speaker 6: if you think about the paidon law firm, come in,
4:27
Speaker 6: send us a text over the website, it only comes
4:31
Speaker 6: to my desk or Tom's just give us a thought
4:34
Speaker 6: and I don't think you'd be disappointed. We've had excellent
4:37
Speaker 6: results for clients and developed relationship with clients now for
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Speaker 6: fifty years, and we put our name behind it. Other
4:47
Speaker 6: people do they are other families. We hear them all advertised.
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Speaker 6: They may be from Florida or other places unknown, but
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Speaker 6: we're from Putnam County and Saint Albans and Kanawa County
4:56
Speaker 6: and our staff. If the lady lives in Saint Albans
5:00
Speaker 6: in Buffalo, the other in PoCA. You know, my wife's
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Speaker 6: a Poka dot. Formerly I was a dragon at Saint Albans.
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Speaker 6: So you know, you can come in and we understand
5:09
Speaker 6: what goes on here. We know what people think about
5:12
Speaker 6: and how issues are addressed or should be addressed. Now,
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Speaker 6: Tom was in the office last Monday, and he was
5:21
Speaker 6: using my car because his daughter was in the market
5:24
Speaker 6: for a new car and she had borrowed one of
5:26
Speaker 6: his while she was making the transition. So he had
5:28
Speaker 6: my Toyota Avalon Hybrid which has a transaxle made in Buffalo.
5:37
Speaker 6: And I'm a home in Hurricane near Hurricane, right by
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Speaker 6: Sleepy Holly Golf Course here and my wife and I
5:45
Speaker 6: are sitting there and all of a sudden.
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Speaker 4: Boom boom, boom, boom boom. What is that?
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Speaker 6: Look at the sliding glass door and what it is
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Speaker 6: is hailstone. Oh yeah, yeah, not just the side. People said, Oh,
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Speaker 6: they were as big as golf bolls. This maybe baseballs
6:00
Speaker 6: would be. It's like shrapnel coming from the sky, pounding, pounding, pounding,
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Speaker 6: and the Thomas. I said, I'm going to call Tom
6:06
Speaker 6: and tell him not to come. Well, he picks up
6:09
Speaker 6: the phone. I call him. He's in the car. I
6:11
Speaker 6: can tell him you can hear the bomb. Tom, Well,
6:14
Speaker 6: I'm at Tay's Valley Baptist Church, which is right in
6:17
Speaker 6: the middle of the valley, just after you pull out
6:19
Speaker 6: of the intersection interchange and start down the valley road.
6:23
Speaker 6: And he tried to set a pull over here to parking.
6:25
Speaker 6: I'm trying to get under the canopy, but your windshield's broken.
6:30
Speaker 6: So he gets the car home in the windshields. Was
6:33
Speaker 6: four huge hail impacts. Well, so the next day take
6:39
Speaker 6: a look at I counted fifty on the car. Now
6:43
Speaker 6: eerie insurances. I've been with him for decades and you
6:46
Speaker 6: know they're doing the best they can. I've got an
6:47
Speaker 6: appointment to go see you drive through adjuster. But it's
6:50
Speaker 6: just it's unbelievable and they have been totally a lot
6:53
Speaker 6: of cars. I talked to one of the adjusters. He
6:55
Speaker 6: said that the problem is, Uh, the roof on a
7:00
Speaker 6: modern sedan is a nine thousand dollars part. So if
7:05
Speaker 6: the dinning is too bad to have one of the
7:07
Speaker 6: dent pullers fix it. And you've got that on the hood,
7:11
Speaker 6: that on the trunk, and that on the roof plus
7:15
Speaker 6: the trim, let's be that. You know, if the cost
7:18
Speaker 6: of the it doesn't take much. And if you had
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Speaker 6: a nine thousand dollars roof and a seven thousand dollars
7:23
Speaker 6: hood and a six thousand dollars trunk, lit and trim,
7:26
Speaker 6: what are you talking about? There's eighteen thousand bucks fifteen
7:29
Speaker 6: thousand dollars right off the bat, plus the labor. But
7:35
Speaker 6: you're totling a car that's essentially functional other than aesthetics.
7:39
Speaker 6: Now I'm going to get my windshield fixed. I don't
7:41
Speaker 6: know what I'm going to do about the rest of them.
7:43
Speaker 6: But it was a storm of biblical proportions.
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Speaker 2: It was.
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Speaker 5: I know, in Cross Lanes where my mother in law lives,
7:50
Speaker 5: she had like a canopy over her She has a
7:54
Speaker 5: large deck outside next to her pool and stuff like that.
7:57
Speaker 5: All of that stuff, like the little pool area of
7:59
Speaker 5: the cabinary, all the covered areas, all that stuff just
8:01
Speaker 5: ripped apart, just absolutely ripped apart.
8:03
Speaker 6: Fortunately, our home when we built it a few years ago,
8:06
Speaker 6: we opted to put brick on the whole house, kind
8:11
Speaker 6: of the conventional standard and modern buildings, say down in
8:15
Speaker 6: the valley, bigger homes, they'll maybe have a brick facat
8:18
Speaker 6: on the front part of the side, but then a
8:20
Speaker 6: lot of vinyl siding and trim on the rest of
8:23
Speaker 6: the house.
8:23
Speaker 4: And it's just Swiss cheese, you know.
8:27
Speaker 6: You take that vitl siding and it's been up there,
8:29
Speaker 6: say ten years or so, and it's brittle. It's certainly functional,
8:32
Speaker 6: doesn't need to be replaced. But when you impact it
8:34
Speaker 6: with a hailstone the size of a golf ball going
8:38
Speaker 6: about thirty miles an hour, wham. So we'll see we
8:42
Speaker 6: have a We haven't had a great influx of calls
8:46
Speaker 6: at the office about dealings with insurance carriers, and my
8:52
Speaker 6: general experience has been and when you get a disaster
8:54
Speaker 6: like this, they go full board. They've got a whole
8:57
Speaker 6: national crew. Most mainline carriers of disaster adjusting teams. And
9:02
Speaker 6: so they'll set up at this they go full board.
9:05
Speaker 6: They've got a whole national crew, most mainline carriers of
9:09
Speaker 6: disaster adjusting teams. And so they'll set up and you
9:13
Speaker 6: can go and they have a fluorescent light they can
9:15
Speaker 6: put on the car and we'll.
9:17
Speaker 4: See how it shakes out.
9:18
Speaker 6: I hope no one runs into a problem with, you know,
9:21
Speaker 6: a claim that won't be paid, or a claim that
9:23
Speaker 6: is you know, they think that being Nickeldon dined on
9:26
Speaker 6: a claim if you do. Of course, that's the kind
9:28
Speaker 6: of work that the Peyton Law Firm has been doing
9:31
Speaker 6: for decades, representing normal folks who have disputes with I
9:37
Speaker 6: guess you could call it the establishment, the powers that be, banks, insurance,
9:41
Speaker 6: et cetera. Now switching gears. I wanted to say what
9:47
Speaker 6: I believe is a precursor of unpleasant things to come.
9:53
Speaker 6: I read, you know there is a lawsuit pending and
9:55
Speaker 6: two lawsuits combined out in Missouri. I believe in Saint
9:58
Speaker 6: Louis relative to the payment of college athletes, or quote
10:04
Speaker 6: amateur athletes who are no longer going to be amateur athletes.
10:08
Speaker 6: This was brought by a number of president and former,
10:12
Speaker 6: mostly former NCAA athletes who contested the amateurism rules because
10:17
Speaker 6: they didn't get paid, and now they're being paid sort
10:21
Speaker 6: of above the board through name, image and likeness. The
10:25
Speaker 6: Mountaineers have Country Roads trust with gathered up money, and
10:30
Speaker 6: it's no secret that the going price now for a
10:32
Speaker 6: good quarterback in the transfer portals a couple million dollars.
10:35
Speaker 5: Before you know, the guy from Tennessee was like, hey,
10:37
Speaker 5: two million's not enough for me, man, I.
10:39
Speaker 4: Need four million.
10:39
Speaker 6: So he goes to the big ten UCLA where they'll
10:42
Speaker 6: pony up four million dollars. Makes it harder on the pros.
10:46
Speaker 6: The pros now when they go to talk to these
10:48
Speaker 6: kids about where they're going to be drafted. It's like, well,
10:50
Speaker 6: you know, I'm not all that desperate right now. If
10:53
Speaker 6: I'm picked to play in Buffalo, outside the wire and
10:55
Speaker 6: in the cold, I may just sit this one out.
10:58
Speaker 5: I may answer it. Maybe the only silver lining to
11:01
Speaker 5: this is the literacy that some of these players are
11:04
Speaker 5: getting about finances before they get to the league, because
11:06
Speaker 5: before there was a real issue with that.
11:07
Speaker 6: Well, yeah, we're gonna change the rules about it. I mean,
11:09
Speaker 6: they've got to have it an a l agent. You
11:11
Speaker 6: can't have really astute coaches and coaching staffs and general
11:17
Speaker 6: managers out here, you know, negotiating theoretically a good faith
11:22
Speaker 6: with seventeen eighteen nineteen year old kids and their parents,
11:25
Speaker 6: many of whom are financially distressed, and got them to
11:29
Speaker 6: sign some sort of long term contract with a buyout.
11:32
Speaker 6: But what's it going to do to ticket prices? And
11:35
Speaker 6: I had the experience this week of I like to
11:38
Speaker 6: go to see ball games at Wrigley Field if I
11:40
Speaker 6: had to be in Chicago, and I will be soon.
11:43
Speaker 4: One of the cathedrals of baseball.
11:44
Speaker 6: Sure, yeah, yeah, you want to go sit in the
11:46
Speaker 6: it's that in Fenway or the last two left, Detroit's gone.
11:50
Speaker 5: You know, been to Wrigley for a game. I've only
11:52
Speaker 5: did a walk through a Fenway. I haven't been to
11:54
Speaker 5: Fenway for a game.
11:55
Speaker 6: I saw the Yankees and the Socks playing Fenway, and
11:58
Speaker 6: that was an experience. Yeah, that's perfect. Well, it was
12:00
Speaker 6: one one Yankee fan sitting in front of us and
12:03
Speaker 6: he had to be let out by security in the
12:06
Speaker 6: seventh inning.
12:07
Speaker 5: You get to take it, You take the ride, right,
12:09
Speaker 5: that's all.
12:09
Speaker 6: Well, it was fine with us. Because the fans throwing
12:12
Speaker 6: beer on the guy, we're starting to splash over on us.
12:14
Speaker 6: Yeah that's not good. But ninety bucks, ninety bucks for
12:17
Speaker 6: a baseball ticket, now, this is not buying home plate.
12:21
Speaker 6: This is second tier, third baselines halfway to the flagpole
12:26
Speaker 6: or the foul pole.
12:27
Speaker 4: You know.
12:27
Speaker 6: It's and I'm thinking, well, somebody's going to pay these salaries,
12:30
Speaker 6: and somebody's going to pay these expenses. They get eighty
12:32
Speaker 6: one of those games a year, and yeah, you get
12:35
Speaker 6: eighty one, So what are they going to do in Morgantown?
12:37
Speaker 6: A ticket that may costs now what forty five fifty
12:41
Speaker 6: bucks for a football game? Just marked that up to
12:45
Speaker 6: maybe eighty ninety. So just think about that. In the
12:49
Speaker 6: whole millieu is a hey, you got a fello. A
12:54
Speaker 6: man and woman. Maybe they're living all Mullins right, say, well,
13:00
Speaker 6: he's got a job, Mount and Cole were driving a truck.
13:03
Speaker 6: Maybe she's working as a substitute cook at the Board
13:06
Speaker 6: of Education and they're doing all right, okay, and they've
13:09
Speaker 6: got two three kids, so lit'st all of them out
13:12
Speaker 6: in your fans. Now you just stop and think, what
13:14
Speaker 6: if these prices keep on as they are to get
13:19
Speaker 6: in the car. You got to have gasoline, right, You
13:21
Speaker 6: got to drive from Saint Mollins. You got to go
13:23
Speaker 6: out there to Beckley, hit the interstate going north to Morgantown,
13:27
Speaker 6: get the town. You got to feed yourself, you gotta
13:29
Speaker 6: feed the kids, get to buy. It's going to be
13:31
Speaker 6: a thousand dollars. Now you talk about that's just a
13:34
Speaker 6: heck of a burden. It's unavoidable. I guess it's just
13:37
Speaker 6: the way of life in these United States. But I
13:42
Speaker 6: mean to me, seeing that looming on the horizon, maybe
13:45
Speaker 6: I'm maybe I'm lucky to be seventy five years old and.
13:51
Speaker 4: Won't be.
13:53
Speaker 6: It's strange now when you reach a certain point you
13:55
Speaker 6: start looking at future schedules and think, oh, that's a
13:57
Speaker 6: great game. If that's a great game. We've got scheduled
14:02
Speaker 6: with Penn State and if. But you just didn't put
14:05
Speaker 6: the f aside. So on the legal front, well we
14:09
Speaker 6: did have yesterday Judge acres here in Kanawk count he
14:13
Speaker 6: lowered the boom appropriately. I mean the person took two
14:17
Speaker 6: human lives and was convicted by a jury of first
14:20
Speaker 6: degree murder, second degree murder, and then the add on
14:23
Speaker 6: was is ten years for the east and presentment of
14:25
Speaker 6: a firearm, and those are consecutive sentences, which means, as
14:32
Speaker 6: I understand sentencing, and I think I've got a pretty
14:34
Speaker 6: grip on if it's the man's eligible for parole on
14:37
Speaker 6: the first degree murder after fifteen years, So after he
14:42
Speaker 6: has served the fifteen years, then he would start earning
14:45
Speaker 6: eligibility towards parole for the second degree murder.
14:49
Speaker 5: So you don't earn that concurrently, right, So that doesn't
14:52
Speaker 5: mean in fifty that doesn't mean in fifteen years you
14:54
Speaker 5: get parole for both. You have to earn one and
14:56
Speaker 5: then the other, which is in essence.
14:57
Speaker 6: Consecutive means concent without parole, which means probably twenty seven
15:06
Speaker 6: twenty eight years before there's any eligibility, and with a
15:09
Speaker 6: double homicide, the likelihood of a prompt role that's not good.
15:14
Speaker 4: So.
15:14
Speaker 6: But then also in our local court system, yesterday down
15:18
Speaker 6: in Huntington, Judge Chuck Chambers in the United States District
15:24
Speaker 6: Court for the Southern District of West Virginia entered an
15:26
Speaker 6: injunction stopping the removal from the country of a graduate
15:32
Speaker 6: student at Marshall by Ice. You know, as a part
15:36
Speaker 6: of the vast deportation. As I understand it that I
15:41
Speaker 6: read part of the order this morning, I didn't have
15:43
Speaker 6: time to read it all. It is a it is
15:45
Speaker 6: a it's a commentary on due process and why it
15:51
Speaker 6: is so important. This person, who's not remains unidentified except
15:57
Speaker 6: by in thisials, was apparently in the United Ued States
16:00
Speaker 6: on a student visa, not the one that has now
16:03
Speaker 6: been revoked, but on an earlier date, and was arrested
16:09
Speaker 6: in the Midwest on a charge of driving under the influence.
16:14
Speaker 6: Now we don't know the severity the nature of that charge.
16:16
Speaker 6: Apparently there wasn't one involving accident or injury, which doesn't
16:21
Speaker 6: excuse driving under the influence. It should never happen. But
16:24
Speaker 6: the person was put on probation, They served their probation,
16:27
Speaker 6: were discharged. Now, then this person re entered the United
16:32
Speaker 6: States in twenty twenty three to pursue a master's degree
16:37
Speaker 6: a higher education degree at Marshall and disclosed on his
16:42
Speaker 6: application for in one student visa that he had a
16:46
Speaker 6: prior misdemeanor conviction. Disclosed this conviction, but was cleared to
16:53
Speaker 6: enter the country and given the visa. Now that's his
16:57
Speaker 6: status bestowed upon him by virtue of his application and
17:01
Speaker 6: full disclosure.
17:02
Speaker 5: There's nothing else he could have done. He did everything
17:04
Speaker 5: he was supposed to do correct and now.
17:08
Speaker 6: On what I would literally say the guys of removing
17:13
Speaker 6: a criminal quote violent criminal from the country. This is
17:16
Speaker 6: a person who was convicted of misdemeanor what six seven
17:22
Speaker 6: years ago, was just simply picked up without any opportunity
17:27
Speaker 6: to challenge the conduct of the agency and propose for
17:31
Speaker 6: a deportation. In the words that Judge Chambers used, which
17:36
Speaker 6: I think people who've kind of overlooked in this conversation,
17:40
Speaker 6: is the action is arbitrary and capricious. Those are words
17:45
Speaker 6: of art to in the law and in the realm
17:49
Speaker 6: of due process. When you talk about due process, you
17:53
Speaker 6: know it depends due process in the United States. There
17:57
Speaker 6: are some forms of what are called due process everywhere,
18:02
Speaker 6: but in a Madisonian democratic representative republic, which people say, oh,
18:08
Speaker 6: this is not a democracy, it's a republic. Well, indeed,
18:11
Speaker 6: it's not a pure democracy in our government. It's a
18:14
Speaker 6: representative republic where states and individuals elect representatives, they send
18:20
Speaker 6: them to Washington, d c. And they perform the constitutional
18:24
Speaker 6: duties of the legislature, and we elect a president through
18:29
Speaker 6: the electoral college. But how those representatives are selected is
18:32
Speaker 6: course demost democracy.
18:35
Speaker 4: People vote.
18:36
Speaker 6: It's not an autocracy where some strongman picks your representative,
18:40
Speaker 6: and it's not a kleptocracy where the thieves and corruptors
18:46
Speaker 6: pick your representatives. It's a democratic republic. And what you
18:51
Speaker 6: form when you form a government like we did with
18:53
Speaker 6: the Constitution, you know, you vest the monopoly for the
19:00
Speaker 6: legitimate use of violence in an entity that is the government.
19:04
Speaker 6: That's the underpinning of every government. The ultimate monopoly on
19:10
Speaker 6: the use of violence now that we see, well, the
19:14
Speaker 6: ultimate is the death penalty, which is all surrounded by
19:17
Speaker 6: due process. But you take the simplest court order or
19:24
Speaker 6: the simplest act of a government agent to interface with
19:29
Speaker 6: a a person's vested interests or freedom. What if they
19:35
Speaker 6: don't comply, well, then you can have a US marshall
19:38
Speaker 6: go out. Well what if they don't follow the instructions
19:41
Speaker 6: of the US Marshal, Well, the US Marshal then can
19:44
Speaker 6: forcibly take them into custody. That's an act of violence.
19:47
Speaker 6: And if there's resistance, then the authorities can meet that
19:51
Speaker 6: resistance with the same or similar reasonable force, up to
19:57
Speaker 6: and including deadly force. If the situation commands it. Now,
20:01
Speaker 6: that's at the bottom of all these treads, and how
20:04
Speaker 6: do you harness that monopoly and control it so that
20:09
Speaker 6: you can have a free and progressive people. I'm not
20:13
Speaker 6: saying progressive in the sense of the left or right wing,
20:16
Speaker 6: but people, you know, how do you protect the negative freedom?
20:21
Speaker 6: Negative liberty is really important to a lot of people.
20:24
Speaker 6: Negative liberty is don't touch me, don't make me take
20:27
Speaker 6: a shot, don't make me wear a mask. Well as
20:31
Speaker 6: opposed to positive liberty. I mean, we limit the government's
20:36
Speaker 6: ability to use their monopolistic force to interfere with your
20:41
Speaker 6: negative freedoms so that we can have positive freedom, That
20:44
Speaker 6: is that we can all be free to work together
20:46
Speaker 6: to what we might do, what we could do, not
20:49
Speaker 6: what we can't do, and to do that the minimum
20:52
Speaker 6: The Fifth Amendment to the cost to the United States
20:56
Speaker 6: part of the Bill of Rights says no person shall
20:59
Speaker 6: be deprived of life, liberty, or property without due process
21:02
Speaker 6: of law. Now, the word due process is not defined,
21:05
Speaker 6: but clearly it was an intent by the people who
21:08
Speaker 6: formed this country to limit government. Doesn't limit individuals. It
21:11
Speaker 6: limits the government's ability to exert its ultimate monopoly against
21:19
Speaker 6: an individual. So the course is, here's how you do that. Well,
21:23
Speaker 6: you give people who are the subject to some governmental
21:27
Speaker 6: action that will change they're either negative liberties or they're
21:30
Speaker 6: positive liberty out notice. You give them a notice that
21:35
Speaker 6: It doesn't have to be a long notice, it don
21:36
Speaker 6: have to be an elaborate notice. It all varies based
21:39
Speaker 6: upon the nature of the right effected and the circumstance
21:43
Speaker 6: of a person simply appears at the border and asks
21:47
Speaker 6: to be let in. They haven't no due process, they're
21:49
Speaker 6: not here yet, they're not a person within the United States.
21:51
Speaker 6: Just turn them away. Some people who cross the border
21:56
Speaker 6: undocumented or unlawfully, they're apprehended. They can be promptly returned
22:02
Speaker 6: if you know basic investigation reveals you were convicted of
22:07
Speaker 6: murder in Cuba and we don't want you, so turn
22:10
Speaker 6: around and go back. But once a person's in the country,
22:14
Speaker 6: Our Supreme Court has consistently said, including Justice Scalia, that
22:19
Speaker 6: a quote person within the United States not a citizen,
22:22
Speaker 6: but any person has some due process rights. Doesn't mean
22:26
Speaker 6: that everybody it's a trial. I heard that turret post
22:29
Speaker 6: out yesterday. It means that you get to notice, you
22:34
Speaker 6: get an opportunity to present your side of the story,
22:37
Speaker 6: and you get an opportunity to appear before some neutral
22:41
Speaker 6: and detached third party. So well, here, maybe in a
22:48
Speaker 6: less than fully formal trial, for the basic facts and circumstances,
22:52
Speaker 6: and if they find probable cause to believe that you've
22:54
Speaker 6: committed some act or done something that makes you subjequent
23:00
Speaker 6: immediate deportation, then they enter in order and you're taken away.
23:05
Speaker 6: It's not that complicated, but it only becomes complicated in
23:12
Speaker 6: the minds of the public when the course of the
23:15
Speaker 6: government is asserted against people we.
23:16
Speaker 4: Don't care about any way.
23:18
Speaker 6: Right, So if prisoners don't get due process in penitentiary
23:24
Speaker 6: when a guard beats them without any judicial authority and
23:29
Speaker 6: acting in an arbitrary and capricious manner, well they should
23:33
Speaker 6: just be without a remedy. Or if a sixteen year
23:36
Speaker 6: old entered the United States unlawfully ten years ago, well
23:42
Speaker 6: we can send them to a prison anywhere in the
23:44
Speaker 6: world without even a right to speak up. That's just
23:48
Speaker 6: not the way it works. That's the most concerning thing
23:50
Speaker 6: to me, and I think the most in the legal
23:53
Speaker 6: community about the current actions of some agencies of our government.
24:00
Speaker 6: It's not that complicated. Just do it right, you know.
24:05
Speaker 6: Can you understand that applies to the ability to unleash
24:08
Speaker 6: violence or the threat of violence against individuals by taking
24:13
Speaker 6: away or putting them in a situation where you take
24:15
Speaker 6: away some vested interest that's entitled to be protected.
24:21
Speaker 4: You know.
24:22
Speaker 6: We can talk them all day about. Well, the procedural
24:25
Speaker 6: due process, which means notice, a statement of what you're
24:30
Speaker 6: charged with having done, or a statement of the reasons
24:33
Speaker 6: for the government's action. Your right to read that and
24:36
Speaker 6: maybe not disagree with it. So, oh you got me,
24:38
Speaker 6: I'm gone. It doesn't mean that everyone is going to
24:40
Speaker 6: avail themselves of the full range of substance of due process,
24:46
Speaker 6: which would be some non arbitrary third party person to
24:51
Speaker 6: decide yeah or nay. But it applies to those who
24:54
Speaker 6: are entirely I mean, it applies to everybody. Does the
24:58
Speaker 6: Fifth Amendment apply to people who are unlawfully in the
25:02
Speaker 6: United States? The Fifth the Bill of Rights applies to
25:05
Speaker 6: everybody universally, every second of every hour of the day.
25:09
Speaker 6: Now you have a right to keep and bear arms
25:12
Speaker 6: every second of every hour of the day. You have
25:14
Speaker 6: a right to speak your mind every second of every
25:18
Speaker 6: hour of the day. In the United States, because that's
25:21
Speaker 6: what the Constitution says, and the fifth and fourteenth Amendment
25:26
Speaker 6: of the Constitution both say and affirmatively that before the
25:31
Speaker 6: government can unleash on you the potential of exercising its
25:35
Speaker 6: monopoly on violence, you have a right at least some
25:40
Speaker 6: basic Here's what we say you did. If you say
25:43
Speaker 6: you didn't do this, here's who's going to decide this.
25:47
Speaker 6: If they decide against you, come on, we're going to
25:50
Speaker 6: the plane. If they ruin your favor, well we may
25:53
Speaker 6: appeal this, but you stay here. That's just the way
25:55
Speaker 6: it works, and I think that's why it will work.
26:00
Speaker 6: I think the ultimate outcome to me of these cases
26:03
Speaker 6: the one in Huntington. I mean, the person's about their
26:07
Speaker 6: visa is going to expire anyway. That person's graduating with
26:10
Speaker 6: a master's degree in some sort of advanced field on
26:14
Speaker 6: the tenth of May. And once that's concluded, my understanding
26:17
Speaker 6: of in one visay, once they complete their studies, they
26:21
Speaker 6: return home. And if someone simply arbitrarily and capriciously says no,
26:29
Speaker 6: you can't do that. If it's a government official, that's
26:31
Speaker 6: a violation of due process. That has nothing to do
26:36
Speaker 6: and it never has anything to do with the relative
26:40
Speaker 6: perceived quality of the person or the relative perceived threat
26:46
Speaker 6: or degree of care that you should have for that person.
26:51
Speaker 6: It's not theirs. It's not due process is what we
26:55
Speaker 6: owe them. You know, the fellow who was sentenced by
27:00
Speaker 6: Judge Acres yesterday, he simply acted. He didn't afford his
27:05
Speaker 6: victims any due process. He simply acted arbitrarily, maliciously, and capriciously.
27:11
Speaker 4: And killed two people.
27:13
Speaker 6: But that doesn't change the fact that the man had
27:17
Speaker 6: an arrest warrant, a criminal complaint, a preliminary hearing, pre
27:23
Speaker 6: trial proceedings, a trial in front of a jury of
27:25
Speaker 6: his peers, a pre sentenced investigation after his conviction, and
27:29
Speaker 6: an opportunity to appear in front of the circuit judge
27:33
Speaker 6: an exercise his right of allocution, that is, to address
27:36
Speaker 6: the court and say why he should or shouldn't be
27:40
Speaker 6: sentenced for any given number of years. It's just it's
27:44
Speaker 6: it's it's simply. The really distressing thing to me is
27:49
Speaker 6: to hear highly placed members of the executive branch of
27:53
Speaker 6: government to scoff at that idea literally scoff I mean,
27:57
Speaker 6: I heard this guy Homan, who's something. He's like the
28:01
Speaker 6: deportations are. Well, he's the one that said, well, they
28:04
Speaker 6: didn't give us any due process when he crossed the border. Well, Tom,
28:08
Speaker 6: that's just not the way it works. And it's a
28:10
Speaker 6: really bad faith argument. It's a ment to trick. Well,
28:13
Speaker 6: it's a red hearing, that's what it is. It is
28:15
Speaker 6: to throw out a smelly, shiny object over here to
28:18
Speaker 6: distract people. And what's the basis of this? Is it
28:22
Speaker 6: just ego? I mean, this fellow who was picked up
28:24
Speaker 6: and sent to Maryland, uh the spring with the United
28:28
Speaker 6: State is going to undo that. They're going to take
28:30
Speaker 6: some action. Now what the response of the administration is
28:33
Speaker 6: to that action, I don't know. But when you get
28:35
Speaker 6: a essentially a seven to two and a nine to
28:38
Speaker 6: zero set of decisions related to the removal of folks
28:43
Speaker 6: subject to the Enemy Aliens Act and transportation to someplace
28:47
Speaker 6: in El Salvador, there's going to be some action there. Now,
28:52
Speaker 6: keep in mind, this is only on a few, very
28:54
Speaker 6: few of these people who said we want to protest this.
28:58
Speaker 6: We're not we are not what you say we are,
29:02
Speaker 6: and that that is the key to providing them some
29:05
Speaker 6: at least minimal due process. Now having said that, why
29:09
Speaker 6: don't we take a break. Let folks tune up their
29:11
Speaker 6: dial because now we can actually get called. That's right,
29:14
Speaker 6: and we hope we get some calls.
29:15
Speaker 5: So if about ten minutes left in the program, you
29:16
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29:31
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32:10
Speaker 5: here from the patent law firm. But talking about a
32:12
Speaker 5: lot of different things this morning. I want to ask
32:13
Speaker 5: you one quick thing just to wrap up the conversation
32:16
Speaker 5: we were having about the due process and what's been
32:18
Speaker 5: going on with the mass deportations and everything. And people
32:22
Speaker 5: have different opinions about immigration and deportation and things like that.
32:27
Speaker 5: The due process shouldn't be one of those parts that
32:29
Speaker 5: are contested. I mean, if people shouldn't be here, they
32:32
Speaker 5: shouldn't be here, right, there should be process that's behind it.
32:35
Speaker 6: Once again, it's it's an attempt to implement a policy
32:43
Speaker 6: that the vast majority of the American people eighty twenty
32:48
Speaker 6: favor more supervision of the borders period and favor removal
32:56
Speaker 6: promptly from our mits those people who have entered the
32:59
Speaker 6: country out a law and present a clear and present danger,
33:02
Speaker 6: and who are not legitimately entitled to seek asylum. But
33:09
Speaker 6: the solution to that, in my estimation, would have been
33:13
Speaker 6: for Congress to pass the bipartisan immigration bill that was
33:17
Speaker 6: pending last summer that the current administration discouraged Congress from passing.
33:24
Speaker 6: It would have significantly increased the number of immigration judges,
33:29
Speaker 6: and that could easily be sunset at the end of
33:32
Speaker 6: a period of time. To get rid of the backlog
33:35
Speaker 6: if there is a backlog, or you can, Congress could
33:39
Speaker 6: allocate some money and set up in a series of
33:41
Speaker 6: independent emergency courts hear these things quickly, just to assure
33:45
Speaker 6: that we don't do I mean better, one hundred guilty
33:49
Speaker 6: men go free than one innocent man go to prison.
33:52
Speaker 6: That's Thomas Jefferson. And that's just the way the government
33:54
Speaker 6: has set up to protect the individual person.
33:59
Speaker 4: And keeping. Of course, that.
34:01
Speaker 6: Person doesn't owe the United States as a part of
34:07
Speaker 6: the social contract like a citizen does. If you're a
34:10
Speaker 6: citizen of the United States because you were born here,
34:14
Speaker 6: because you were naturalized here, then you enter into sort
34:16
Speaker 6: of a contract, an agreement universally that you will that
34:24
Speaker 6: you'll be protected, your rights will be secured, but you
34:28
Speaker 6: will give up some of your don't touch me negative
34:32
Speaker 6: freedom for the common good. You will conform with laws
34:35
Speaker 6: that are lawfully passed promote the public good, whether they
34:39
Speaker 6: be for floriding the water or masks during a pandemic.
34:43
Speaker 6: They may not be the appropriate decision by government, but
34:46
Speaker 6: the solution that's at the ballot box.
34:48
Speaker 4: Right. So, in so far as this whole.
34:52
Speaker 6: Debate cheapens the idea of due process for the unpopular,
34:59
Speaker 6: it's dangerous.
35:00
Speaker 5: And that's I want to ask you this next and
35:01
Speaker 5: just a couple of minutes left. This is a complicated situation,
35:06
Speaker 5: but the the the concept of boiling the frog, it
35:11
Speaker 5: feels to me like that what's happening is we're turning
35:14
Speaker 5: up the heat to find out where the line is,
35:16
Speaker 5: where the pushbike is. And I mean I'm seeing comments
35:21
Speaker 5: from administration officials to media that, you know, there may
35:26
Speaker 5: be a time where it's good for citizens to carry
35:28
Speaker 5: their papers because you might't be asked for your pet
35:30
Speaker 5: In my regulation, there's never a good situation where you're
35:33
Speaker 5: asked for your papers.
35:34
Speaker 6: No, no, I mean, the constant debate in the United
35:40
Speaker 6: States has been whether we could implement a you know,
35:44
Speaker 6: you can't get a national ID if you want to
35:46
Speaker 6: fly on an airline. Now you go to the state
35:49
Speaker 6: Department of Motor Vehicles and you get yourself one of
35:51
Speaker 6: these driver's licenses with a star on it. You don't
35:54
Speaker 6: have to go get a federal ID car that you
35:56
Speaker 6: carry around with you all the time. That's that is
35:59
Speaker 6: anathema of the formation of this country to the way
36:01
Speaker 6: it works. It's a federal representative, democratic republic, period, and
36:07
Speaker 6: we have the right of freedom. I can drive from
36:09
Speaker 6: here to California. I'm not stopped at the borders. Interstate
36:12
Speaker 6: commerce is reserved to me, as a lawyer looking at it,
36:19
Speaker 6: I think objectively, the answer for both sides is for
36:23
Speaker 6: the Congress of the United States to knuckle down, do
36:26
Speaker 6: its job, formulate legislation that meets the priorities of the
36:34
Speaker 6: American people as our representatives perceive them, and implement them.
36:38
Speaker 6: And then if the administer the executive branch doesn't agree
36:43
Speaker 6: with that, well they can su us and Aituy in
36:46
Speaker 6: a Supreme Court. The Supreme Court has said the last
36:50
Speaker 6: great case was in nineteen fifty eight reserved to itself.
36:53
Speaker 6: The ultimate primacy to determine what the federal law is
36:57
Speaker 6: is vested in the Supreme Court. They say that was
37:01
Speaker 6: in the cases relating to school desegregation, where not surprisingly,
37:05
Speaker 6: you had local federal judges ruling contrast to the holding
37:11
Speaker 6: of Brown v. Board exempting school districts from prompt compliance,
37:16
Speaker 6: and that this was in Arkansas, and that went back
37:20
Speaker 6: up to the Supreme Court where they clearly said in
37:24
Speaker 6: a nine to nothing opinion, no, you can't question our
37:28
Speaker 6: finding out what the law is with regard to segregation
37:32
Speaker 6: of schools. We did that. It's over and after that time.
37:37
Speaker 6: Of course, that was at a time when the President
37:39
Speaker 6: of the United States had sent one hundred and first
37:41
Speaker 6: Airborne a little rock Arkansas to enforce the court awork anyway,
37:45
Speaker 6: Hate Law Firm, And we know a lot about the law.
37:48
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37:52
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37:56
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37:56
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38:00
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38:03
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38:04
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38:08
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38:20
Speaker 4: Have a great day everyone.
38:21
Speaker 5: Dave Allen and five eighty Lava is up next, Dave
38:23
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38:25
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38:28
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38:30
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