Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order

I've previously written about Roger Shuler, the Alabama blogger currently in jail for contempt of court based on his defiance of an injunction that is likely an unconstitutional prior restraint of speech. Though I think that Shuler's history shows him to be a vexatious litigant, and though I think his erratic and foolish behavior has contributed substantially to this situation, I find the injunction against him and his incarceration for violating it very troubling. I'm quoted on that point in last weekend's New York Times.

There are some developments of note.

Shuler Has Been Convicted of Resisting Arrest And Sentenced to 90 Days Imprisonment, Suspended

Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resiting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson. I'm not an expert on Alabama criminal procedure, but my rough understanding is that misdemeanors like this are tried by bench trial in the "district courts" of Alabama, and can be appealed to the "circuit court" for a trial by jury, which is a strange way to run a railroad.1

Three things concern me about Shuler's bench trial.

First, he represented himself. It's not clear whether he refused appointed counsel (which he foolishly did before) or whether he was somehow deprived of one. I suspect he refused counsel, which is transcendentally idiotic and self-indulgent. He had a right to appointed counsel. Nothing in his history of pro se litigation suggests he was even minimally competent to defend himself.

Second, the judge denied Shuler a continuance to gather evidence, which Shuler requested because he had been in custody since October:

Jackson denied a request made by Shuler that the case be continued after he claimed that his incarceration prevented him from preparing his defense and obtaining certain discovery material, such as a video recording of the incident and copies of arrest warrants.

Now, representing yourself is likely to lead to this sort of result — you're not prepared for trial. But judges are supposed to take steps to protect the rights of pro se defendants. The arrest — and the alleged unlawful resisting of arrest — is less than three months old, and I find it highly dubious and suspicious that a judge would deny a continuance to give Shuler more time to seek discovery and prepare.

Third, it's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.

Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. That's what his wife argues now. Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

The district judge imposed a suspended 90-day jail sentence, meaning Shuler is now incarcerated only on the contempt of court.

In short the coverage of the trial leaves me where I was before: questioning whether the Alabama court system is treating Shuler according to the rule of law, but also suspecting that Shuler is doing everything he can to undermine his own best interests.

Shuler Remains Incarcerated On The Contempt of Court Charges

Back in November, the Alabama court issued a permanent injunction against Roger Shuler forbidding him from saying certain things about the plaintiffs in his case and requiring him to remove certain posts from his blog. The court did so after a hearing that it characterized as a "permanent injunction hearing." As I explained back in November I believe that permanent injunction is a prior restraint in violation of the First Amendment; the cases permitting such prior restraint against defamation generally only do so after a full trial before the correct finder of fact (which should be a jury), not after some mere "hearing." There's nothing extraordinary about this case that should permit departure from that precedent. So unless Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing — something that's not outside the realm of possibility given his erratic behavior — the injunction seems unlawful.

Yet Shuler remains in jail for contempt of court based on his refusal to comply with the injunction. How long can he stay there? That's complicated.

There are two types of contempt consequences: punitive and coercive. Punitive contempt sanctions punish contempt; coercive contempt consequences seek to force someone to do something. Here's how the Supreme Court described the difference, and the different requirements:

"Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U. S., at 199; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.2

Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:

Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.

Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.

So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely." In many American jurisdictions that's correct — indefinite coercive incarceration is a tool that has led to calls for reform. In that Alabama case — which involved a mother refusing to disclose the location of a son suspected of arson — the Supreme Court of Alabama suggested that a court should revisit the issue:

In cases such as this, after the contemnor has been incarcerated for a substantial length of time, the trial judge should bring the contemnor before him for another due process hearing in which he can reevaluate the factual basis of his first adjudication. If he is satisfied that his determination was correct, he should again incarcerate her. If he is of the opinion that she is telling the truth, of course, he should release her.

Hopefully the Alabama court will revisit Shuler's incarceration. At this point Shuler's options to get out of jail are to comply with the (probably unconstitutional) order or appeal it. Given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal. Telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success.

We should be able to look critically both at Roger Shuler's behavior and of the system's treatment of him. Notwithstanding overly credulous coverage (like like Salon article that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior), Shuler remains his own worst enemy. His evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights. But even nuts and cranks deserve due process of law; depriving them of it threatens to weaken everyone's rights. I'm troubled by how Shuler's civil and criminal cases were handled.

Alabama Court, Roger Shuler Continue To Thwart Roger Shuler's First Amendment Rights

Back in October I wrote about how an Alabama court had issued a preliminary injunction against "Legal Schnauzer" blogger Roger Shuler prohibiting him from blogging about certain claims and requiring him to take blog posts down. I also explained why that preliminary injunction was likely unconstitutional prior restraint — an order that prohibited speech before it happened rather than punishing defamatory speech after it happened, without any extraordinary circumstances that might support it. Last week I talked about how the ACLU had filed an amicus brief on Shuler's behalf, but bemoaned that Shuler was refusing legal counsel in a case arising out of his arrest for defying the preliminary injunction.

There are updates. They aren't good.

Though Roger Shuler may have enemies amongst Alabama politicians, and perhaps even amongst Alabama judges, he remains his own worst enemy.

The Alabama Court Has Issued A Permanent Injunction

This week a local news station reported that on November 14, 2013 the Alabama court held a hearing and indicated that it would issue a permanent injunction finding Shuler's posts about Robert J. Riley, Jr. to be false and ordering him to take them down.

The local station quoted Riley's law partner and attorney James Murrill as dismissing the prior restraint and First Amendment concerns:

There's been speculation that the Court's previous orders have infringed on Mr. Shuler's constitutional rights. Actually, libelous speech is not protected by the First Amendment. As the United States Supreme Court ruled in Linn v. United Plant Guard Workers of America, "it must be emphasized that malicious libel enjoys no constitutional protection in any context." Also, the concept of "prior restraint" applies to an action to enjoin speech before it occurs. This lawsuit dealt with speech that had already occurred, and the law allows a plaintiff to seek civil remedies for defamatory speech that has already occurred. All of this is clear if you look at the Court's records, which the Court has now agreed to unseal."

That press statement is either one of the most blindingly ignorant or cynically dishonest I have ever read from an attorney about a case. Riley may be suing Shuler based on past speech. But Riley — though Murrill — sought an injunction that prohibits future speech. That's classic prior restraint. Murrill is simply lying when he suggests that Riley has not litigated to silence Shuler's ongoing and future speech.

Some may suggest that because a court held a hearing and issued a permanent injunction rather than a preliminary injunction, this is no longer an issue of unconstitutional prior restraint. I disagree. The authorities permitting prior restraint of statements found by the trier of fact to be defamatory — whether by forbidding their utterance, or requiring them to be removed — only support such an order after a trial, not after a pre-trial hearing. Here Shuler has not had an opportunity to conduct discovery and the judge, rather than a jury, acted as the finder of fact. The vast weight of authority seems to be against prior restraint until after trial except in extraordinary cases — and nothing about Shuler's case is extraordinary, except perhaps the political connections of his targets.

In 2007 the California Supreme Court upheld a post-trial order enjoining specified defamatory statements; that opinion has a good survey of prior restraint cases across the state and federal courts. Those authorities strongly supports the notion that the First Amendment requires a full trial, not a mere pretrial hearing, before prior restraint is permissible. See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973) 413 U.S. 376, 390 [“prior restraint is… communication…before an adequate determination that it is unprotected by the First Amendment”); Kramer v. Thompson (3d Cir.1991) 947 F.2d 666, 675 [“The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected.”]; see DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 891–892, 4 Cal.Rptr.3d 69, 75 P.3d 1 (conc. opn. of Moreno, J.) [“a preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker's or publisher's First Amendment claims”].

Moreover, until we see the written permanent injunction, we won't know if it suffers from the other flaw of the preliminary injunction: vagueness. The preliminary injunction didn't just require Shuler to take certain posts down and forbid him from saying specific things about Riley; it also vaguely forbade him to publish "any defamatory statement" about Riley "including but not limited to" the defamatory ones. That leaves Shuler (or anyone advising him) to guess at what he may or may not publish. It's exactly the sort of vague and indefinite prior restraint repeatedly struck down by courts. If it appears in the permanent injunction, it's an additional ground for constitutional challenge.

Roger Shuler is Still Roger Shuler

Riley's lawyer James Murrill — whose version of events admittedly should be taken with a pillar of salt — describes Shuler's conduct at this week's hearing as follows:

A hearing was held today on a permanent injunction. Mr. Shuler attended and presented no evidence in support of his false allegations, but instead called the Court a joke and said that he would not follow the Court's order. He also told the Court that it had no jurisdiction over him.

Well, that's just disastrous for Shuler and for the First Amendment. It's exactly the sort of behavior that concerned me when Shuler refused a court-appointed lawyer.

Shuler may believe that the fix is in; he may believe that this Alabama court is biased for powerful and connected local politicos like Riley and against critics of powerful politicos like Shuler. That doesn't make refusing to participate, calling the court a joke, and denying the court's jurisdiction a sensible strategy. It's a wholly deranged strategy. Shuler increasingly reminds me of some of the defendants I saw as a federal prosecutor in the 1990s — tax protestors who claimed that the United States District Court was an admiralty court with no jurisdiction over them because it flew a flag with a gold fringe, Feemen who said that the defendant named in the indictment was not the same person as them because the name was capitalized in the caption and their name is not capitalized, and so forth. Shuler's "I successfully evaded service and therefore this court has no jurisdiction over me" is a madman's gambit. Jurisdiction isn't a game, and even if it were a game, Shuler lost it. Shuler's litigation behavior — which is merely an extension of his history of vexatious pro se behavior — is robbing him of any chance of vindication of his rights.

Perhaps this court is biased against Shuler and for Riley. Riley is from a powerful family and has powerful friends; Shuler is — in a way that appears to me to be haphazard and crazed – a critic of powerful politicians. The court has issued a preliminary injunction that strikes me as frankly lawless. But ultimately you can't vindicate your rights by refusing to acknowledge the court, like some fallen dictator before a revolutionary tribunal. You have to fight for your rights. You have to articulate how you believe your rights are being violated. You have to seek to call witnesses, to present evidence, and to cross-examine the other side's witnesses. If, like Shuler, your circumstances make those things nearly impossible, you need to articulate your need for more time or resources and explain what you would do if you had them. If you don't do those things, you not only lose in the court you think is biased, you very likely lose on appeal or on any collateral attack in another court — because you haven't acted to preserve your arguments.

Shuler was in a very bad place this week, but he could have acted to protect himself. He could have asked for time to secure an attorney. There are pro bono attorneys willing to help him. He could have asked for time to conduct discovery to support his assertions. Even if he couldn't refute Riley's assertion that his blog posts were false, he could have tried to show that he had some sources and evidence supporting them. That might have demonstrated that his posts weren't defamatory because he didn't write with with actual malice, the standard applicable to statements about a public figure. But if Murrill's account is accurate, and he simply refused to participate, he may have lost not only this motion, but his ability to challenge it on appeal or in any other court. Any reviewing court may conclude that Shuler waived the arguments he declined to make.

It's not clear why Shuler is acting that way. Is his story a lie, and he knows he can't support it? Is he swollen with hubris? Is he crazy? Whatever the answer, legally speaking he's cut his own throat. Worse, he's helped set a precedent that will embolden future plaintiffs seeking to silence defendants through unconstitutional prior restraint.

I would have no problem if Riley sued Shuler, took him to trial, convinced a jury that his posts were false and malicious, secured a judgment against him, and enforced it against him. Shuler's conduct and history, and the shady nature of his claims, makes me extremely skeptical of his story. But this is a very bad result any way you look at it.

Update On Prior Restraint of Alabama Blogger Roger Shuler

A couple of weeks ago I wrote about Roger Shuler, an Alabama blogger. Shuler is the subject of a preliminary injunction prohibiting him from repeating a story about local political figures and requiring him to remove that story from his blog. In my post I argued that the preliminary injunction constitutes unconstitutional prior restraint; most of the legal commentators I've seen have reached the same conclusion. In short, the First Amendment allows a court to impose consequences on you if your speech is found to be defamatory at trial, but in all but the most extraordinary circumstances doesn't allow a court to prohibit you from uttering your allegedly defamatory speech before trial. Roger Shuler simply doesn't present an extraordinary circumstance justifying prior restraint.

Shuler remains in jail — he was arrested for contempt of court based on his refusal to abide by the preliminary injunction, and also charged with resisting arrest for something that happened during the arrest. I wasn't there for the arrest and can't say what happened. I will merely observe that "resisting arrest" is often code for ""contempt of cop" or for "suspect then assaulted my fists and nightstick with his face, groin, and knees."

There are two significant developments in the case: one good, one bad.

The Good: Mrs. Shuler reports that the ACLU has sought leave to file an amicus brief questioning the preliminary injunction, and has submitted a proposed brief. The brief — signed by Randall C. Marshall, director of the Alabama ACLUis here. It's good. The ACLU's brief makes two points: first, the prior restraint on Shuler is unconstitutional under settled law and no extraordinary circumstances justify it, and second, the court's decision to seal the entire case file is constitutionally suspect.

I found it more than a little surreal to be cited in a brief by the ACLU:

In the meantime, the remedy for Petitioners lies not in the suppression of speech but in more speech. Indeed, with the proliferation of the discussion of this case on the Internet, even those who raise First Amendment concerns are highly critical of Shuler. See, e.g.¸ (last visited November 1, 2013)

The ACLU's point is a good one: the fact that Shuler is saying nasty and potentially defamatory things is not an "extraordinary circumstance" justifying the Alabama court's decision to disregard the imposing wall of precedent against prior restraint. It's not an extraordinary circumstance, in part, because the marketplace of ideas provides pre-trial remedies in the form of response speech. Upon review of Shuler's litigation history and his posts I am disinclined to believe anything he writes, and suspect he's making up this story in particular. That doesn't make it right for a court to ignore First Amendment precedent and impose prior restraint just because Shuler is crazy, creepy, or offending the local political elite.

So: the ACLU's amicus brief may not turn the court around, but it may bring more attention to the case and make the court be more cautious about broad and unconstitutional orders.

By the way, the unprincipled and unconstitutional orders that Shuler's adversaries sought, and that an Alabama judge granted, have drawn far more attention to this case than an obscure blogger's plight would otherwise have merited. That's the Streisand Effect in action.

The Bad: Shuler's craziness may be an impediment to getting him effective representation and pushing back against the unconstitutional orders in the case.

Alabama news reported on his first appearance after his arrest:

Tuesday morning Roger Shuler appeared in Shelby County District Court to answer a charge of resisting arresting. During his court appearance, Judge Ronald Jackson asked if Shuler had an attorney. Shuler replied no. The judge then asked if Shuler wanted the court to appoint an attorney for him. Shuler again replied no.


Yeah, I know that was only on the resisting arrest charge and not on the contempt charge. But it does not bode well for Shuler accepting help on the contempt charge, and thus on the crucial First Amendment issues in the case.

Look: be a martyr and refuse legal counsel to make a point if you want. But don't confuse that with mounting an effective fight against injustice. Lawyering isn't rocket science, but it does require training and experience. Every indication (see, for instance, the history in footnote 1 of my post about Shuler) indicates that Shuler does an awful job representing himself. The system is designed to chew up people who represent themselves. It's not fair, it's not right, but there it is — a fact that won't go away just because you're in the right. Shuler's rejection of a lawyer seems to be part of the pattern of misguided antics that has robbed him of the opportunity to litigate the First Amendment issues, like evading service and refusing to show up for hearings based on nutty vexatious litigant theories.

If Shuler continues to refuse counsel, it's highly unlikely that he will successfully navigate a system that's indifferent to him at best and hostile at worst. Does he have a right to do it himself out of some sense of pride or justice? Sure. But his bumbling may serve to lock in the orders against him and, through bad precedent, weaken everybody else's rights a little. It's crazy.

I'm aware of at least one substantial rights organization other than the ACLU that has expressed to me an interest in helping Shuler — if he will accept help. If anyone has any power to persuade him, now would be a good time to start.

Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction

There are a few things you should know about Roger Shuler, who blogs at "Legal Schnauzer."

First, Shuler is creepy and crazy. (I formed that opinion by reading his blog.)

Second, Shuler is a vexatious litigant, a serial pro se abuser of the court system.3 (I formed that opinion by researching records of his litigation history.)

Third, Shuler is currently in jail, arrested for contempt because he violated an unconstitutional preliminary injunction — a classic prior restraint — prohibiting him from defaming the son of a former Alabama governor.

Some people excuse or applaud the third thing because of the first and second things. They shouldn't. The First Amendment protects everyone — even creepy, crazy vexatious litigants. You should demand that the First Amendment protect people like that, because if it doesn't, it won't protect you when you need it.

[Read more…]