Sunday, February 24, 2013

The Plaintiffs Meet in Nashville

     "I probably shouldn't talk about the details of our decision on my blog--right?" I asked the two lawyers who were driving me to the Nashville airport after our meeting.
     "No, it's probably not a good idea," Mike Easely said, and Tim Dudley concurred.
     "Why not?"
     "It'll probably piss a few people off."
     "So?"
     "They could try to stand in our way."
     "Can they do that?"
     "No, not ultimately.  You have rights, too."
     "Don't all lawyers tell their clients not to talk--ever?  Don't you wish defendants were mute?"
     "Yeah, I guess so," they laughed.
     But I think I'll take their advice this time.  The case is too important.
     Our meeting was attended by four plaintiffs and four lawyers, all of us sitting around a big table in a conference room belonging to Gibson Guitar.  On the wall were framed charcoal drawings of guitar players whose leathery hands were strumming, affectionately, their instruments.  (Is there any instrument that says "Made in America" more than the guitar?)  Gibson is one of the most respected guitar makers in the world, but the company also owns Baldwin pianos, and Wurlitzer jukeboxes and vending machines--so it's a big protagonist in the American economy, considering it's a privately held company.
     The owner, Henry Juszkiewicz, had just come in from a trip to Japan.  Midamor's owner was still attending a trade show in Dubai and couldn't be present, but had been at an initial meeting weeks earlier (which I couldn't attend, since I was shutting down my clinic) and had had a lot to say.  Every one of us nursed a sense of personal outrage over the turmoil, mostly unnecessary, created in our businesses by government agents.  John Stacks, whose standing in his community has plummeted since the raid on his water-bottling plant ("the banks don't want anything to do with me") said he wanted the lawyers to take action immediately.  Henry settled his six-year case with the government last August, but didn't sign a gag order and therefore preserved his right seek redress of damages.  We were all in agreement that we should move forward immediately with a class-action suit, but the methodology of action against the government is stymied by a small detail called sovereign immunity.
     Sovereign immunity is a condition which holds that the government can do no wrong, and is therefore immune from civil lawsuits or prosecution of any kind.   It makes it next to impossible to sue the feds for anything.
     No wonder FBI agents said, at a number of our raids, "We're the government!  We can do what we want, when we want, and there's nothing you can do about it!"  They were right...almost.
     The use of cannons when a pea-shooter will do is extravagant, ludicrous and wasteful, and reveals, in ways we'd like to make public, the private insecurities of government agents and prosecutors, who conceal their smallish self-esteem behind a barrage of weapons, shouting, and general bullying.  Sometimes their tactics go awry, and a person or two get killed.  Oh well, seems to be their thinking.  If you don't want to risk your life, do as you're told and stay out of our clumsy way.
     One of my clinic employees described the way FBI agents treated her, when they stampeded our clinic on June 16, 2011,
     "I was in a room drawing blood on Mrs. K.," she said.  "The agent swung open the door, sending a shock wave through the room, and shouted at me to 'get that needle out, now.'"
     The medical assistant looked down at the blood coursing into the tube, which she was holding steady, despite the disturbance created by the supercilious, uniformed agent, who was so close she could feel the heat emanating from his torso.
     "No, I can't," she told the agent, glancing at him from behind, as he hovered over her.  She tried to show him that the needle was attached to a vacuum device, and might tear the patient's vein if she yanked it out suddenly.
     "'Get it out now, I said!" the FBI agent commanded, with a tone indicating that his patience was being taxed.  That's when the medical assistant turned around and saw a gun aimed at her head.
     Mrs. K. asked, "What's going on?".
     "Go home," the agent told her.  "Find another doctor."
     Why are military tactics being used in small business settings, where the workers are earnest people, unlikely to be armed and, in any case, disinclined to use weapons?  Did the agents think of the medical assistant's phlebotomy needle as a weapon?  What procedural manuals instruct government agents to storm a building like our medical clinic--a place of healing, and, like a chapel or psychological support group, a sanctuary, a pacifist enterprise--and terrify everyone, including patients whose health status might be precarious?  What threat made it necessary, that day, to haul in from long distances dozens of armed agents--four or five for every clinic employee present that day--to "contain" the situation?
     We shared with one another details about the raids on our businesses, including our back-stories, and identified similarities.
     Gibson was accused of importing unfinished ebony and rosewood from Madagascar, in defiance of the Lacey Act (which states that the U.S. government can prosecute Americans for breaking the laws of other countries)--but the imported wood was, in fact, finished fingerboards (made of wood which is unavailable in America).  Madagascar's government issued affidavits confirming the wood was not unfinished, and saying Gibson hadn't broken any of its laws. ("We don't even recognize your country," the prosecutor in the case said, in a last-ditch effort to be right, "so it doesn't matter if you say the wood was finished.  We'll make that decision.")  The government's case was weak--in fact, nonexistent.  Nevertheless, its agents demanded, over the years, millions of pages of documents and spent huge sums (of taxpayers' money) "investigating," i.e., trying to foist a conviction on, the company.
     Duncan Outdoor Sports was accused of accepting a cash payment that wasn't deposited into the bank immediately (an undercover agent paid for an item in cash and said the deposit didn't show up in the bank)--but government agents never checked to see if the deposit had been recorded as taxable income in the bookkeeping records.  It's fine to "take money from the till," as long as that revenue is reported on the bank register, and included as taxable income .
     Mountain Pure Water was accused of not producing documents on a FEMA loan it had been granted in 2008 following tornado damage.  But, in fact, the requested documents had been copied and sent twice, in response to the government's request for records.  The company had been making monthly payments on the loan without a break.  "I'm 110% sure I'm innocent," said Stacks, who resents having to pay lawyers to prove the government is wrong, especially after its agents terrorized his employees and damaged his standing in the community where he was born and raised.
     Midamor was accused of selling meat that didn't meet the standard of for halal, or wasn't labeled properly.  "Halal" indicates that:  a) Allah's name was pronounced during slaughter;  b) the animal's throat is slit with a very sharp knife;  c) the animal was conscious prior to slaughter;  d) the blood was drained by hanging the carcass upside down;  d) the slaughter was performed by a practicing Muslim, Christian or Jew;  e) the animal was not given feed that contained animal byproducts.  Since Midamor's owner wasn't at the meeting, I am not certain how the government's claims were worded, or whether the company has been indicted, or settled.
     The justifications for the raid on Colasante Clinic are "sealed," supposedly to protect witnesses who are already identified on Google--especially Pat McCullough, whose whistleblower claim is public knowledge.  Nevertheless, the prosecutors in my case say they need to hold back information in affidavits supporting their raid, including the 3,000 patient charts they continue to keep under lock in Tallahassee, because "the investigation is still ongoing."  An odd development has occurred, however:  the documents referable to a public hearing that was held, in September 2011, for the purposes of reclaiming patients' medical charts and working capital, are now sealed, including my lawyers' pleadings.  The courthouse has told my attorneys that they can't get access to their own motions any more.
      It's experiences like these that have brought the five of us plaintiffs together, some accompanied by our personal lawyers, to meet with our two Arkansas lawyers, Mike Easley and Tim Dudley, who say they can make a strong case for us against the government. Many of our employees wish to join the lawsuit, too, because they feel they were wronged during the raids.
      Whether or not any of the government's claims have merit, as small or large criminal offenses (and all of us believe the government doesn't have a case) the raid/threat/attack methodology, reminiscent of the Gestapo (an abbreviation for "secret state police," from Nazi days) which was implemented by FBI agents in every single one of our raids--and hundreds or thousands more, across the country, is what we question and oppose.
     "I'm pumped," said Mr. Easley.  "You guys have a lot to be angry about."
     "We have a strong case," said Mr. Dudley.  "Let's iron out the details and get going.  We can have your lawsuit filed within two weeks."
     In summary, yesterday we had a meeting that galvanized the group and underlined our shared purposeto push back on ever-increasing government encroachment of our rights, and to question the necessity of armed intimidation and dangerous (an optometrist was killed by an FBI agent in a Virginia raid) SWAT-team tactics, used for the simple purpose of recovering paper documents or computer hard drives that might have been obtained without raid at all.
     The meeting turned my lonely, two-dimensional grievance into a three-dimensional platform.  We five plaintiffs want to do something for ourselves, it's true, but we want to do something important for America, and for you, too.
     If it weren't for America--we're all together in this!--we could forget about the raids and attacks, and our anger, and our fractured reputations, and we might be able to act as though those agents' reprehensible actions were nothing but a bunch of bad dreams.

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