When people hear a reference to “state actors,” they imagine for a split second a group of people all practicing grimaces, tremulous expressions of fear or glorious smiles as if before a camera. They imagine these people serve a government acting school or work perhaps on a state-sponsored movie.
By David Tulis / NoogaRadio 92.7 FM
But in the eyes of local economy and the free market, “state actor” refers to the great enemy of liberty, an imposer of a remote, external force upon local free citizens.
It refers to the dull-witted villain of the piece, who for the first half gets his own way with the hero of the story baffled, a victim of the state actor’s machinations, the hero who is outflanked at every turn, run over by the enemy and put into a dead end from which there Is no escape.
If you are in a thriller movie involving a state actor, a good way of scripting a conflict and gaining control of the narrative is by administrative notice.
Administrative notice denies a state actor a virtue before the audience that, once he loses, will not be restored to him in the audience’s credibility and sympathy as the narrative nears its denouement.
State actors are for the most part a backward-looking and frightened bunch of people. In their conflict with the American citizen, they are often unwilling to be bold and courageous. They fear the media. They fear looking bad. They act very carefully to appear to be in the right. They are wary of stepping beyond what their bosses say, or what they believe their bosses want. They are guarded, generally cautious, and not ambitious against any member of the public, even the one who suddenly is in their sights.
They are bound by rules and regulations in which they find their comfort and safety. As Ludwig von Mises indicates in Bureaucracy (1944), they constantly work to cover their rears. Bureaucrats don’t want open and public conflict. The dread exposure for going out on a legal limb. “Go along get along” is their rule. They proceed in a given case because some noble member of the watchdog public brought the perp to his attention or filed a complaint out of pique or jealousy. (See Gary North, “The Escalating Confrontation with Bureaucracy,” pp 149-190 in Tactics of Christian Resistance, 521 pp, 1983).
A bureaucrat who find himself in a noisesome encounter with a member of the public often has to put on a face of courage and public virtue that he does not feel and in which he barely believes. His public conflict starts becoming an embarrassment to him before members of his family, church or country club. Bureaucrats are risk averse and past-oriented.
But he is vulnerable in many ways and his best defense is always that he was just just doing his job and following the rules, that he was exercising his authority in the marketplace without being arbitrary or capricious. His claim is that he was upholding the law even though the consequence of his actions are ruinous and ridiculous and cannot be made to look right even in a sympathetic report in the Chattanooga Times Free Press.
The remedy of administrative notice is one that makes a state actor give the best grimace he could ever perform in his role as villain.
Your forward-thinking remedy
Your administrative notice is a document that lays out all the law and all the court rulings that touch a particular incident of harassment against a member of the public.
It is not an argument. An administrative notice does not make the case for the victimized citizen. It simply lays out all the law that touches on the conflict.
It is not argumentative. Its rhetoric is neutral. It seems in many ways to be a collection of disparate facts about the law, citations from the law and annotations. In many ways it appears to be an incoherent document because it offers a diverse set of legal statements without pulling them together in an argument.
Deny good faith
The great power of administrative notice in a case such as city of Dunlap vs. Gaddy north of Chattanooga is that it denies state actors the good-faith defense. It denies state actors the ability to say, “I didn’t mean anything wrong and I thought I was acting according to the law.”
Administrative notice accounts for the consciousness requirement in Tennessee’s oppression statute, TCA 39-16-403, “A public servant acting under color of office or employment commits an offense who: (1) Intentionally subjects another to mistreatment or to arrest, detention, stop, frisk, halt, search, seizure, dispossession, assessment or lien when the public servant knows the conduct is unlawful; *** ”
Keywords: Intentionally. Knows.
Administrative notice, because it lays out all the law, denies the state actor the platform on which to stand when you sue him personally for F$100,000 in pocket change or F$1.5 million. If you have given him and his allies administrative notice, you forbid him the basis on which to say that he was acting in good faith. Once you filed administrative notice, you make it very clear to the jury, the real audience in any dispute, that he was acting in bad faith.
The poison of bad faith
Bad faith is poison to any state actor. Bad faith is like trying to be a movie star when you have a paralyzed face muscles and have to use crutches to walk about. Bad faith is like trying to perform a comedy scene moments after having watched both his parents sawed in half and his wife raped by a Jihadi fighter.
Bad faith makes it impossible for a state actor to play his role as a noble public servant, upholding the law and seeking to serve the greater public good in his bureaucracy. Bad faith makes all his fine rhetoric and all his firm correspondence with his victim (that’s you) look like so much malicious gibberish. Doing his job under the cloud of bad faith makes it impossible for him to claim the virtues of being innocent and in no way needing to pay you the F$1.5 million you demand at trial.
Bad faith has in view the common Man. It has in view the juror, that one of 12 who decides the facts and the law when finally you have your day in court against the fine gentleman behind the malicious harassment you endured. The common man on the jury vindicates you because you are his representative, you stand for him. Administrative notice is a secret insight for the movie’s viewer. It lets the audience know secretly the truth that runs hidden in the many scenes of your tribulation. It reaches across the entire narrative of the state’s attack against you and lets the juror see you as his representative, innocent and oppressed, and bring you relief.
Administrative notice secures the juror’s favor. It denies the juror’s favor to the state actor. Administrative notice today sets the groundwork for your claims tomorrow against the party harassing you. It may be dull, it may make no arguments about your fabulous rights. But it lets you deny to the state actor the claim that he did not knowingly oppress you.
With administrative notice your script a happy ending.
A powerful story of resistance