Illegal alien wins defamation case for being called a 'criminal' – set back for 1st Amendment

Illegal alien wins defamation case for being called a 'criminal' – set back for 1st Amendment

An illegal-alien day laborer who attacked a U.S. photographer at a notorious San Diego day labor site in 2006, was awarded $2,500 in damages for "defamation per se" by Judge Ronald Styn in a non-jury trial in San Diego Superior Court.

The Mexican national plaintiff, Alberto Jimenez, who was illegally in the country at the time of the attack of Los Angeles photographer John Monti, sued San Diego Minutemen founder Jeff Schwilk for defamation for calling the illegal immigrant attackers "criminals" when he forwarded an email with Monti's pictures of Jimenez and six other suspects who were at the scene of the crime.

Initially the lawsuit was filed in October 2007 and all seven men shown on the flyer sued Schwilk, Monti, and Fox News Corporation for defamation. However, Fox News and Monti were eventually dismissed from the case in 2008 and 2009 and six of the seven plaintiffs dropped their lawsuits against Schwilk in February, leaving only Jimenez vs. Schwilk for the one-day judge-only trial.

When the trial began, Jimenez was not in the courtroom to meet his accuser. Schwilk immediately asked Judge Styn for a directed verdict to dismiss the case, but the judge opted to start the trial without him and gave Jimenez additional time to appear in court as his attorney said he was running late. The plaintiff's attorney, Dan Gilleon, claimed his client was trying to get across the border and needed more time because he was a Tijuana, Mexico resident.

Read more: http://www.examiner.com/examiner/x-10317-San-Diego-County-Political-Buzz-Examiner~y2010m4d20-Illegal-alien-wins-defamation-case-for-being-called-a-criminal--set-back-for-1st-Amendment

You must think something, since you were prompted to post it. I'm really curious about what you think about the article and its content.

Describing a person as a wanted criminal to others is on its face defamatory, and if the person so described is not actually a wanted criminal, doing so violates long-standing law, that has co-existed with the First Amendment for as long as that has been in existence. It cannot have taken the judge more than a few moments to render verdict here.

So whether that would be justified or not is impossible for me to say.

Violation of immigration law in the U.S. is not punished as a crime, but by deportation from the country, though a person will be confined while awaiting deportation.

That is beside the point here, however: the defamation consisted of stating this person was wanted for assault and other similar crimes, and had committed them, at a time when he was not in fact being sought by any police department on such charges, and had not been convicted of such crimes.

so yes, in that case you WOULD be a criminal, in fact a felon

so i took it upon myself to edumacate you

Feel free to ignore our overly wordy and completely agenda-driven friend here.

If you went to Mexico without permission, believe you me they would have you locked up in the worst jail you can imagine before you could say "no mas". Rights? Not for a foreigner illegally in Mexico, you don't even get assurance of even basic human rights, forget about things like a lawyer, jury trial, etc.

You'll get out when you manage to get someone to bribe them to let you out, and not until.

What sort of agenda would lead one to have such deep knowledge of the status of Mexicans illegally in the United States and be completely ignorant of the reciprocal arrangements?

Probably won't take anybody else too long to figure it out, only questions is whether you'll admit to it or feign innocence.

My comments have concerned only the propriety of the judge's verdict the defamation per se did in fact occur in this case.

who working in concert with The Big Gay Agenda, are after our guns and porn.

:rofl:

That was perfect!

This is about American Jurisprudence what the Mexicans do is irrelevant. That being said; your attack on The Magistrate was rather silly. He openly admitted to knowing nothing about it, while you painted a rather silly picture based off of what you have heard from Fox News and bad Hollywood b-movies. At least he was honest.

I do realize that might come as a shock to you. However, you would be entitled to the same rights as a Mexican citizen if you found yourself afoul of the law in Mexico.

dg

and helping to steal their elections from progressive reformers. Right on.

then yes you can be called a criminal. That is if Mexico's legal system is like ours in that case.

Notice how news stations are very careful to say "alleged" when talking about someone who is accused.

Email is speech as well. I am all for free speech to say what ever you want about a given topic and to state ones views. I have no sympathy though for folks thinking that they have a right to make false or unproven accusations at will about each other.

:shrug:

I regularly see grammatical and/or spelling errors on the front page of the local edition. I don't think the people who work there get paid much.

Do you believe defamation, libel and slander are protected by the First Amendment?

You did not know the First Amendment prohibits that?

This is an issue of LIBERTY, Sir!!!!

What's this world coming to when a man can't even call a Mexican a criminal without the iron fist of big government coming down on him. This is exactly what happened under Stalin. Wake up people!

Criticize some foreigner in Nazi Germany and the Gestapo took you off to a concentration camp!

Time to oil up and load our guns....

Wetback? Bans/Cans? Bean Burrito? Beaner? Berry Picker? Border Nigger? Border-Bunny? Border-Hopper? Caucasianally- Challenged? Chilango? Chili Shitter?


Which is OK with you?

Archie Bunker would be proud! He just wanted his neigborhood back!

Sorry that wasn't clear.

:rofl:

stay in Tijuana while he applies to come into the US as a legal non-criminal immigrant.

I agree, this is a fucked up verdict.

unless you have previously been deported for committing a crime here and then re-entered the country or in some cases in you over stayed a visa by means of fraud. If you are here without documentation you are deported, not charged with a crime.

"Monti also said under oath that Jimenez had previously testified in his criminal trial in 2007 that he was an illegal alien and had no legal papers to gain employment legally in the U.S."

This man was here illegally, he attacked a cameraman, and yet he isn't a criminal? Sorry, but what language are we speaking here?

In law there is no such term as 'illegal alien'. For constitutional reasons, you can not declare someone or a group of people 'illegal'. It's just a convenient phrase.

Also, being here as an illegal alien (ie no immigration visa of any kind) makes you deportable, but it is not a criminal offense.

Guy attacked a cameraman - that's criminal, but the crime involved in (probably) assault.

edit: deleted a paragraph because I misread something,

However at this point it is all moot. You're not going to budge, I'm not going to budge, and neither one of us have the full story to settle this issue. So I'm going on to something else more important now. Have a nice day.

The defendant broadcast the claim the plaintiff was wanted for robbery, assault, and battery. That was false, and so defamatory on its face.

:yourock:

From the article

"After a 15-minute recess, Judge Styn returned with his verdict finding Schwilk liable for one count of defamation for "carelessly" calling Jimenez a "criminal."

I would think that being an illegal alien would fit the definition of criminal.:shrug:

As a matter of law, that had not been, and has not been, established.

He specifically used the word "criminal" in his ruling.

"After a 15-minute recess, Judge Styn returned with his verdict finding Schwilk liable for one count of defamation for "carelessly" calling Jimenez a "criminal."

Nothing about calling the man a robber or mugger, but rather a "criminal." By being in the country illegally, then Mr. Jiminez is de facto a criminal, he is breaking the law. Therefore how can one win a defamation lawsuit when one is indeed a criminal?

Look, I think that the defendant in this case is an asshole, but I also happen to like the 1st amendment a lot. This ruling smacks more of British style law, that has much tighter definitions of defamation than the US, something that I really don't want to see land on these shores.

The case concerned the dissemination of a 'wanted poster' claiming the plaintiff was wanted for robbery, assault, and battery. The defendant admitted he had circulated this, which made it all rather cut and dried.

If the judge was ruling on the basis of the word "criminal" then it was a poor ruling. If was ruling on the basis of the words "robbery, assault and battery" then he might have a case. It depends on the wording.

To say a man is wanted for robbery is to call him a criminal, and to say he is wanted for robbery when in fact no police department seeks him on that charge is to defame him. This is not a complicated matter.

Since Mr. Jimenez did stand trial for the crime and was found innocent. However the supposed slander of calling him a "criminal" occurred before the arrest and trial.

Here is what the defendant himself said in court in his defense, in this very pro-defendant article:

'Finally, Schwilk reminded the court that although Jimenez was never formally charged with the assault on Monti, he did participate in the attack and then fled the scene of the crime. “In law enforcement, flight implies guilt,” he said.'

This would seem to establish Mr. Jimenez was not arrested or tried for this attack on the photographer, and SWchwilk's insistence he was guilty has no standing as a fact under law.

"Monti also said under oath that Jimenez had previously testified in his criminal trial in 2007 that he was an illegal alien and had no legal papers to gain employment legally in the U.S."

A criminal trial implies an arrest:shrug:

He might have been tried for any number of things ion the year 2007, but he was not tried for attack Monti. Thus, this has no bearing whatever on the issue at trial, which is the defamation committed by Schwilk in circulating claims late in 2006 Mr. Jimenez was wanted for robbery and assault and battery. Had Mr. Jimenez even been tried for that offense, the defense here would have asserted a defense of truth, and prevailed.

OK, whatever.

Look, this has been fun, I'm glad that you're back in circulation. But I've more important things to do right now, so I've got to head on. We'll have to see what the appellate court says on this manner, and hopefully at some point we can get ahold of a full trial transcript.

Take care, see you later:hi:

If it had, that would have been brought forward by the defense, to establish the truth of the statement plaintiff alleged to be defamatory, and prevail in the suit.

Take care yourself, Sir: this is getting into 'say something once, why say it again' territory....

As I understand it, he forwarded emails.

If I had a nickel for every time I've defamed George Bush or Glenn (raped and murdered a young girl in 1990) Beck, I'd be a rich man.

Under the law in this matter, communication of the claim to even one person by the defendant makes the matter actionable.

What the man found liable for defamation here did is send the 'wanted poster' to several law enforcement agencies and to several chapters of his Minuteman organization.

The plaintiff is a private person, and the standards for public personages, people who are well known and prominent in public life, are very different. It is practically impossible for a political figure to prevail in a libel or defamation case here.

Hence, he is a criminal.

but parking violations don't make one a criminal, because "illegal" parking is not a crime for which one could be charged, tried and jailed. Sorry to disappoint you.

"8 U.S.C. § 1325 : US Code - Section 1325: Improper entry by alien
Search 8 U.S.C. § 1325 : US Code - Section 1325: Improper entry by alien

(a) Improper time or place; avoidance of examination or inspection;
misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States
at any time or place other than as designated by immigration
officers, or (2) eludes examination or inspection by immigration
officers, or (3) attempts to enter or obtains entry to the United
States by a willfully false or misleading representation or the
willful concealment of a material fact, shall, for the first
commission of any such offense, be fined under title 18 or
imprisoned not more than 6 months, or both, and, for a subsequent
commission of any such offense, be fined under title 18, or
imprisoned not more than 2 years, or both."

<http://codes.lp.findlaw.com/uscode/8/12/II/VIII/1325>

Hmm, fined, imprisoned, sounds like criminal punishment to me.

I think what happens is that this is simply ignored in most of the run of the mill illegal alien cases and they are simply deported. However just because it is ignored doesn't mean that it isn't in effect, which means that yes, Mr. Jimenez is a criminal.

it was never in a criminal court, okay?

You don't have a law with jail time attached to it that is simply a civil law.

"Alberto Jimenez, who was illegally in the country at the time of the attack"

It does not tell you how he got to be here. You are assuming illegal entry, but only know of illegal presence.

That statement was untrue.

I mixed up the DU poster's argument with the trial defendant's argument, sorry about that. fixed above.

What, do you think that Mr. Jimenez spontaneously materialized somehow without crossing the border. You are playing such a twisted semantics game that you're tying yourself in knots.

You could be illegally because you entered legally on a visa and allowed it to expire, for example. In this case no criminal act has taken place, it's just that the person's status changes to that of a being deportable. Look it up in USC 8.

Apparently he entered illegally.

"Monti also said under oath that Jimenez had previously testified in his criminal trial in 2007 that he was an illegal alien and had no legal papers to gain employment legally in the U.S."

He could have arrived with a tourist visa, which would not legally allow him to work or to remain after it had expired. For all you or I know, he told the border patrol he was coming to visit someone in San Diego and they waved him in.

All we know is that he was in the US without a valid visa or employment documents. The testimony says nothing about the manner in which he arrived.

Frankly I'm going to watch and see on this one, since it is going to be appealed. Hopefully the appellate court will take into consideration the 1st Amendment rather than British slander laws.

You have NO EVIDENCE of illegal entry.

Many thousands of people cross the Mexican border every day at border crossings. it is perfectly possible that Jimenez did so, on a visa that later expired. whether he did or not, there is no record of him committing a crime of illegal entry reported in this story. And if it goes to appeal, the 5th amendment would protect his right not to answer questions about how he arrived if he chose not to answer them.

It's nothing to do with 'British slander laws' even if it makes you better to blame some other foreigners). It is the simple fact that illegal presence does not constitute proof of illegal entry or employment.

how many fucking times does it have to be explained to you?! illegal entry into the us is not a CRIMINAL OFFENSE! if you beleive it to be so, then cite the fucking criminal code.

Illegal presence is not.

If you run across the border to avoid the officials at a designated crossing post, the border patrol could chase and arrest you, and you would be charged with illegal entry. If you come through the border at Tijuana and they let you in, then you don't go back when your visa expires, it's not a criminal offense.

Crossing the border somewhere other than a checkpoint or trying to enter with bogus documents. Once a person is here it is impossible to establish that he or she entered at an undesignated place, eluded inspection or used false papers, thus just being here without documentation isn't contemplated by that statute.

"(a) Improper time or place; avoidance of examination or inspection;
misrepresentation and concealment of facts"

By the simple act of being in the country they have avoided examination or inspection. What, you think that they spontaneously materialized out of thin air or a virgin birth, sprung from somebody's head fully formed like Athena sprung from the head of Zeus?

Good thing the law is a bit more rational than you are.

"By the simple act of being in the country they have avoided examination or inspection."

And you know this...how?

You apparently can't understand the law.

your whole argument is based on the idea that he must have snuck across the border illegally.

Even if he had, he has not been prosecuted for it, nor convicted, so he cannot accurately be described as a criminal for that. But we actually have no idea how he first entered the US, as there is nothing in the story to prove his entry was illegal. We can only suspect that it was, and suspicions are not proof.

But at this point further conversation with you on this matter is useless and pointless.

for the last time, being in the Us illegally is all he admitted to. that is not proof of illegal entry.

Suppose someone from France goes to New York, via plane, as a student or tourist. He likes it and stays in New York after his visa expires. Well now the guy is here in America illegally, and he is not employable. But he did not enter the US illegally.

Jimenez testified under oath he was present in the US illegally, and that he had no employment documents. What does that tell us about the manner of his arrival, exactly?

ENTERING at an improper time or place or avoidance of examination or inspection WHILE ENTERING or misrepresentation WHILE ENTERING. A person can enter the country legally on a student visa, for example, and simply stay when it expires. At that point he is here illegally, but he has not ENTERED the country illegally. The simple act of being in the country without the necessary documents to stay would not at all mean that he avoided examination or inspection while entering the country. A person can enter the country legally on a day pass or a work permit or a tourist visa. There are lots of ways to get here legally without being sprung from anybody's head. Don't feel bad, lots of people talk about things they don't know a goddamn thing about. This is America.

I just love it when people whine about being jailed for traffic tickets, when they're really tossed in the can for contempt of court. :rofl: Soooo, how many court summons DID you ignore anyway?

dg

Not all laws carry criminal penalties. Administrative agencies have powers of enforcement but not, generally, of prosecution.

Being in the US without a valid visa is not a criminal offense. Entering illegally can be, but you can enter legally and have your visa expire. Or if you enter illegally but are not caught, then you have not been charged and convicted, and and cannot be defined as a criminal for legal purposes (unless evidence of your illegal entry comes to light within a certain time).

Therefore he was subject to criminal penalties and technically was a criminal:shrug:

it says only that at the time of his 2007 trial he had no visa or employment documents.

One who breaches a contract is not a criminal.

by your definition, a debtor who failed to pay a debt in time is a criminal.

The illegal alien in question is no more a criminal than the man who committed defamation.

"8 U.S.C. § 1325 : US Code - Section 1325: Improper entry by alien
Search 8 U.S.C. § 1325 : US Code - Section 1325: Improper entry by alien

(a) Improper time or place; avoidance of examination or inspection;
misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States
at any time or place other than as designated by immigration
officers, or (2) eludes examination or inspection by immigration
officers, or (3) attempts to enter or obtains entry to the United
States by a willfully false or misleading representation or the
willful concealment of a material fact, shall, for the first
commission of any such offense, be fined under title 18 or
imprisoned not more than 6 months, or both, and, for a subsequent
commission of any such offense, be fined under title 18, or
imprisoned not more than 2 years, or both.

<http://codes.lp.findlaw.com/uscode/8/12/II/VIII/1325>

When you can be imprisoned, it is entering the realm of criminal law:shrug:

It's like you can't actually be jailed for not paying your income tax - it isn't a criminal offense. They can come and take away all your stuff, drain your bank accounts, audit you up down and sideways (and if they find you have lied about or concealed anything, then they CAN jail you).

But if you owe taxes and don't actually have the money to pay them, and you did not cheat the IRS, you can't be sent to prison. You still owe the money, but it is not a crime to be unable to pay.

8 U.S.C. § 1325 : US Code - Section 1325: Improper entry by alien
Search 8 U.S.C. § 1325 : US Code - Section 1325: Improper entry by alien

(a) Improper time or place; avoidance of examination or inspection;
misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States
at any time or place other than as designated by immigration
officers, or (2) eludes examination or inspection by immigration
officers, or (3) attempts to enter or obtains entry to the United
States by a willfully false or misleading representation or the
willful concealment of a material fact, shall, for the first
commission of any such offense, be fined under title 18 or
imprisoned not more than 6 months, or both, and, for a subsequent
commission of any such offense, be fined under title 18, or
imprisoned not more than 2 years, or both.

<http://codes.lp.findlaw.com/uscode/8/12/II/VIII/1325>

I don't think that this criminal penalty of imprisonment is enforced too terribly often, it would simply overwhelm the court system. But the fact of the matter is that there is a criminal penalty, people can be jailed over it, thus that makes Mr. Jimenez a criminal and this judge's ruling, if was based on the word "criminal" (if that was indeed the word used) rather weak and easily overturned.

The guy has not been convicted of such a crime, nor evidence presented of his having committed it. Therefore, not a criminal.

"Monti also said under oath that Jimenez had previously testified in his criminal trial in 2007 that he was an illegal alien and had no legal papers to gain employment legally in the U.S."

All they say was that he did not have a valid US visa at the time of trial.

How do you know he didn't have an expired visa? That would make him an illegal alien, ineligible to work. To prove criminality, the burden of proof is on the prosecutor to present evidence which shows beyond a reasonable doubt that he broke the law. I have a reasonable doubt that he crossed the border without inspection, because I have met many people who were in the US illegally on expired visas, but whose entry was perfectly legal.

What is your evidence?

Is it crap on brown people day?

Arizona law seems to have the same effect on DU! For a group of people who claim to care about people it makes me wonder! I guess we all have our limits.

Foreigners sue in the US all the time for things that happen in the US. You can't get up in a trial for a broken back on the job and say "the plaintiff is a criminal, because he's not in country legally!"

Libel and slander are about truth. If you tell the truth, you cannot be hit for either in civil court. If a person is not convicted of a crime, they are not a criminal, so calling them one may result in a finding of slander or libel. The reason the verb used is "may" is simple: the trier of fact in the civil case can determine that the use of the term "criminal" was (1) clearly pejorative, or (2) used in humor, or (3) appropriate because the plaintiff had called himself that publicly, or (4) appropriate because the plaintiff really is considered a criminal by the community, even if not convicted.

In this case, the judge was the trier of fact. He made the decision and in that decision are implicitly the elements of slander/libel. He found the elements, and some damages are appropriate.

There's nothing extraordinary about this case, including the lack of understanding that foreigners present in the USA have certain rights in spite of their lack of citizenship.

Innocents all.

When you make such suggestions, you don't improve your position.

Because... well just because.

... because too many consider him a criminal.

When you skip past the conditions I stated clearly, you make yourself appear either inattentive or purposely deceitful.

you can't call someone a criminal until they have been convicted of a crime. Where do you think the term "alleged" murder/rapist/burglar came from anyway?

dg

Why are people such idiots?