Outpost of Freedom blog

Camp Lone Star – Arbitrary & Capricious Justice?

Gary Hunt
Outpost of Freedom
November 24, 2014

“Arbitrary and Capricious” is a rather interesting phrase. Most people have never heard of it, so perhaps, it is time to understand what it is and what the legal significance is.

Let’s start with some definitions, from the respective sources:

Black’s Law Dictionary, 5th Edition:

Arbitrary. Means in an “arbitrary” manner, as fixed or done capriciously or at pleasure. Without adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic; Without fair, solid, and substantial cause; that is, without cause based upon the law; Not governed by any fixed rules or standard. Ordinarily, “arbitrary” is synonymous with bad faith or failure to exercise honest judgment and an arbitrary act would be one performed without adequate determination of principle and one not founded in nature of things.

Arbitrary and capricious. Characterization of a decision or action taken by an administrative agency or inferior court meaning willful and unreasonable action without consideration or in disregard of facts or without determining principle.

Caprice (root of capricious). Whim, arbitrary, seemingly unfounded motivation. Disposition to change one’s mind impulsively.

Webster’s 1828 Dictionary:

ARBITRARY, a. Depending on will or discretion ; not governed by any fixed rules; as, an arbitrary decision; an arbitrary punishment.

-Arbitrary power is most easily established on the ruins of liberty abused to licentiousness.

Washington.

CAPRICIOUS, a. Freakish; whimsical; apt to change opinions suddenly, or to start from ones purpose; unsteady; changeable; fickle; fanciful; subject to change or irregularity; as a man of a capricious temper.

Many state and federal statutes make arbitrary and capricious actions “null and void”, since the concept of such application of law is far beyond any concept of “equal justice under the law”.

Now you probably have a picture of just what “arbitrary and capricious” means, so let’s take an objective view of many of the circumstances surrounding the incident, arrest, and accusations, against K. C. Massey. See if you can recognize where arbitrary and capricious come into play.

We’ll start with the shooting incident on August 29, 2014, when Border Patrol Agent Hernandez fired 5 shots, from 30 feet away, missing his target. The target was John Foerster. He was holding a firearm, which he placed on the ground, after the shots were fired. No testimony even suggests that he pointed the rifle at the agent, but, more on that, later. Now, agents are not to shoot at illegal aliens, unless fired upon. So, I suppose that this shooting is noteworthy in that he didn’t fire on an illegal alien.

After the shooting, Foerster, “Wolf” and Massey were asked to turn their weapons over to BPS, since BPS seemed to think that some “illegals” might sneak up to Massey’s Kawasaki mule, grab the weapons, and then start shooting at the BPS. Makes sense, since we have learned, so often, that “officer safety” is paramount to the safety of unarmed citizens.

So, the weapons that were not fired were turned over to BPS rather than contest the matter with the armed agents, one of whom had just fired at one of the citizens. And, there is little doubt that this incident should be classified as an “officer involved shooting”, since it was only an officer who shot anything. So, we have an officer involved shooting. First thing is to secure the officer’s firearm for the requisite “firearm audit”, which would include ballistics, ammunition count, etc. Instead, BPS Captain Cantu traded weapons with Hernandez, and then placed the shooting weapon in his own holster. Nobody read “Miranda Rights” to the citizens, but the firearms were taken then given to Cameron County Sheriff Investigator Sergio Padilla. Still no receipt for the property taken, no Miranda, and no indication that there would be the requisite “firearm audit”. So, when armed, uniformed officers take your firearms, and they don’t provide a receipt, is that armed robbery — the act of highwaymen? (See Massey’s account of incident)

But, still no indication in the filed reports that any scrutiny, except a verbal report, was made regarding the only person that fired a weapon, that day.

Now, we jump to the criminal complaints that lead to an Arrest Warrant.

The Criminal Complaint is supposed to be an affidavit. Let’s look at what an affidavit is, and what standard we would be held to if we were to file an affidavit:

Affidavit. A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.

First, it is a statement of fact. So, is it a statement of fact if someone tells me that something happened, or, is it merely a fact that someone told me what happened? I can attest to the fact that someone told me what happened, but, I cannot attest to what happened, since I don’t know that I was told was something factual. If someone told me that something happened, it is hearsay, not fact, at least to the extent of my knowledge. It is to be confirmed by oath or affirmation, and must be acknowledged by a person having the authority to administer such oath or affirmation”.

Now, this might be insignificant (arbitrarily not applied), if it were not for the fact that the Constitution, in the Fourth Amendment, states:

• The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Because the Crown had used “Writs of Assistance“, there was cause for the Framers to incorporate such protection against an overreaching government. Should not the government be bound by the document (Constitution) that created it? Or, let me use the words of a friend when discussing overreaching government authority. He said, “There is no effective bar by an individual to any action taken by the Federal government. Federal judges will NOT help dismember the system that created them.” He was a former AUSA (Assistant United States Attorney).

So, the Criminal Complaint begins with “I, Special Agent Anthony M. Rotunno, affiant, do hereby depose and state the following”. He does not state that he has knowledge, or, that what he is presenting is factual. He does not state that he has personal knowledge of what he has said, nor does he “certify” that what he has said is true, though U. S. Magistrate Judge Morgan, does state that it was sworn to him. So, the only element required in an affidavit that meets the standard was made by the judge, not by the affiant.

So, let’s see what he says, that is supposed to be certified as true and correct (from the Criminal Complaint):

2. On August 29, 2014, United States Border Patrol Agents from the Fort Brown Border Patrol Station, while in performance of their official duties, encountered an armed individual, identified as John Frederick FOERSTER, in the brush. During this encounter, FOERSTER turned and pointed a firearm at a USBP Agent, who intern fired several shots at FOERSTER. FOERSTER is a member of “Rusty’s Rangers,” an armed citizen militia group patrolling the border of the United States and Mexico.

This is the only source on file that says that Foerster pointed a firearm at the agent. He lets his “device” override our language when he says “intern” instead of “in turn” or “in return”. Kind of makes you wonder how much effort he put into making this a truthful statement. He also, decides, in this “sworn statement”, that Rusty’s Rangers” is a “militia group”. Is that personal knowledge or an effort at demonization? That can be nothing more than an opinion, which should never be presented as fact, and there is nothing that Camp Lone Star or Rusty’s Rangers has ever presented that indicated that they were “militia”.

In the third item, he states that Massey and Varner “were armed as well”. He was not present, so, he can have no personal knowledge of that fact.

4. While conducting the post-shooting investigation, five firearms were taken into custody by Cameron County Sheriff Investigator Sergio Padilla. The firearms are described as…

The five firearms were all personal weapons and did not include the one that Hernandez had. Is that a presumption that a BPS agent cannot commit a crime worth investigating?

7. On October 16, 2014, your affiant spoke with Supervisory Border Patrol Agent Danny Cantu. SBPA Cantu was in the area of the shooting when the shots were fired and responded immediately to the scene. SBPA Cantu stated that he in-fact recovered the ZASTAVA, Model: PAP M92PV, 7.62 x 39mm pistol, SN: MP2PV005143 from FOERSTER and that he escorted MASSEY, FORESTER and Varner to the staging area for interviews; witnessing MASSEY carrying a holstered Springfield, Model: XDS, .45 caliber pistol, SN: XS664509 and the Centurion, Model: 39 Sporter, 7.62 x 39mm rifle, SN: 39NCO2585, which was slung around MASSEY’s neck.

Hearsay! This does not meet the standard that the Framers set out for government to abide by. This is an arbitrary and capricious acceptance of a piece of worthless paper as evidence with which to issue and arrest warrant for the arrest of Massey.

The Criminal Complaint is available, with all of the statements made by Rotunno. Why don’t you play “hidden picture” with it and find what he has “hidden” that is not personal knowledge and/or based upon hearsay.

Because of the arrest of Massey, the government was able to secure a “Search Warrant“. It differs slightly in form, though the absence of valid content is apparent. The Search Warrant affidavit is, at least, titled, “Affidavit for Search Warrant”, so the claim is made, though the document will still fall well short of what is required by the Constitution. First, he gives his credential as an expert because he went to many government school training classes (I hope these schools are better than the government public schools, or they are equally worthless).

Then, as he gets past his superior intellect, he says:

This affidavit is based on information received from law enforcement officers, law enforcement databases, as well as my own investigation. This affidavit seeking the issuance of a search warrant based on the following…

Then, he reiterates, sometimes reworded, most of the same content that was included in the Complain/Arrest Warrant. He fails to note that the camp, Camp Lone Star, is located on private property, with the consent of the owner, rather, he leaves it hanging:

E.  USBP Agents have had numerous encounters with members of “Rusty’s Rangers/Regulators”, as this group has set up a “camp” (referred to as Camp Lone Star) near the Rio Grande River in Brownsville, Cameron County, Texas. This “camp” appears to be their staging area for their patrols.

He also fails to point out that many of the “encounters” (rather suggestive) were favorable and cooperative, as they were the day of the shooting incident.

Then, in an effort to fortify his position, he says:

F.  During these encounters, on more than one occasion, USBP Agents have seen MASSEY carrying what appears to be a holstered firearm on his hip and a rifle slung around his neck. These encounters are videotaped by MASSEY, usually via a body mounted or vehicle mounted camera; and then posted to MASSEY’s Facebook page. Affiant has viewed MASSEY’s Facebook; viewing the posted videos that depict MASSEY on patrol with other individuals who armed with long guns. MASSEY’s Facebook page also depicts numerous still photos of MASSEY and others armed with firearms. Friday, October 17 of 2014, was the last time USBP Agents saw MASSEY carrying a firearm; more specifically what they referred to as “automatic firearms”.

Darn, he turned semi-automatic weapons into “automatic firearms”, and this guy works for BATF. Note that they arrested Massey with a firearm, so they need not revisit, and enhance, the Camp Lone Star aspect, but, then, they had to get the demonization in to make sure that the Grand Jury would have an earful as to how bad a dude K. C. Massey really is. That makes it easier to get the Grand Jury Indictment.

Now, we get to the arrest, where, miraculously, nobody was injured:

I.  As part of this investigation, it was discovered that MASSEY had been staying at the “Value Place”, an extended stay type hotel located at 995 Media Luna Road, Brownsville, TX, and to driving a white in color 2006 Ford F-150, TX LP [blocked out] (registered to Kevin MASSEY, at [blocked out] with various decals and stickers on the back of the truck. This same vehicle is used by MASSEY to drive to and from the Value Place to “Camp Lone Star” as witnessed by FBI Special Agent Joe Schneider.

First point of interest is that they “discovered” that Massey had been staying at the “Value Place”. This might have been the role that Foerster played, but then we have FBI Special Agent Joe Schneider witnessing Massey driving from Value Place to Camp Lone Star.

Now, I like this next part:

J.  At approximately 9:30 AM, ATF SA’s, with the assistance of FBI, USBP and CCSO agents and officers, established surveillance at the Value Place and located MASSEY’s vehicle parked in the front. Surveillance on this vehicle was maintained until MASSEY was arrested leaving the Value Place at approximately 1:00 PM, as he was walking toward his vehicle while talking to someone using a white in color iPhone 5. The iPhone 5 is a smartphone which is capable of taking still photos and uploading photos to Facebook via the internet, which affiant has performed on numerous occasions with his own iPhone.

So, they were there at 9:30 AM, waiting to arrest Massey. They arrested Massey at about 1:00 PM. According to Massey, there were between 20 and 30 armed agents that made the arrest, with guns drawn. They had waited three and a half hours to make the arrest. So, if we use even twenty agents, we can calculate that it took about 70 man-hours (nearly two workweeks) of time to make a simple arrest — and BPS has a shortage of people to conduct their job. It is that shortage of BPS agents that led to the establishment of Camp Lone Star and Massey’s involvement on the border — to ease the burden on BPS.

It is also interesting to note that Rotunno has sufficient skill to take “still photos and uploading photos to Facebook via the internet, which affiant has performed on numerous occasions with his own iPhone.” I wonder if that was part of the government training circular, or if his children taught him how to do this.

Let’s get some more hearsay, just to understand the deficiency of what was intended by the Framers to be legal sufficiency:

K.  After MASSEY was detained, ATF SA A. Rivas informed MASSEY that he was being arrested based on an arrest warrant, and asked MASSEY if he had any firearms or anything else on him that the agents needed to know about. MASSEY immediately informed SA Rivas that he had a firearm “in his pocket”. SA Rivas then pulled a loaded Springfield Armory USA pistol, model XD5, caliber .45, SN XS613495 out of MASSEY’s right side, front pocket. The firearm and the white iPhone 5 were seized by ATF.

So, BATF SA Rivas retrieved Massey’s firearm, but we have Rotunno making the statement. It might be proper if he had said, “I observed SA Rivas ask Massey if he had a firearm, and then observed Rivas securing that firearm.” However, we are, once again, simply left guessing as to what might really have happened. In addition, we must wonder how dangerous an iPhone 5 is in the hands of a notorious criminal, or even in Massey’s hands.

Then we get to where there should be a statement that meets the standard for an affidavit, though look as we might, we simply find:

Based on the above facts, it is respectfully requested that a search warrant be issued for the items listed in Attachment A, specifically looking for items listed in Attachment B.

So, he says that what he has said is fact, though he has no proof that it is fact. Very little in the entire affidavit suggests that it was personal knowledge, and some of it, obviously, is not. So, where is the chain of sworn statements as to facts that you or I would be held to?

And, while we are discussing “chains”, what about the “chain of evidence”? From the O. J. Simpson trial through other high profile trials, we find the necessity of the court to require a chain of evidence. If that chain becomes broken, then the evidence, itself, is brought into question. Where are the receipts for transfer of the evidence to BPS, CCSO, and then to BATF? Was it a “magical” transition of possession? I cannot find “magical” in the Constitution, or even the U. S. Code. Or, is it simply, if you have enough money, Justice might just work for you? Perhaps we can begin to understand why the statutes of Justice have a balance beam to measure the gold, and a blindfold, as if justice is based simply upon the values that the court, and players on the government side, place on it.

If we are to assume that such sloppy work can be considered within the intent of the Framers, then we are also bound to assume the guilt of a party by as equally sloppy practices within the halls of justice.

Perhaps it is time for us to read the words, and rely upon ourselves to interpret them, as we believe the Framers intended. So far, we have left it up to the government to decide what the words mean, and we have been sorely abused for our failure to insure that government abides by the document that created it (the government), and brought it into existence.

“Are the people to serve the Government, or, is the government to serve the People?”

Related articles:

Camp Lone Star – The Arrest of K. C. Massey

Camp Lone Star – Update #1 on K. C. Massey

Camp Lone Star – Massey & The Clash of Laws

Camp Lone Star – Search Warrant or Fishing license?

Camp Lone Star – Cruel and Unusual Punishments – Before Conviction

Liberty or Laws? “Felon in Possession of a Firearm” is Not Legal or Lawful