Common Law and Uncommon Courts: An
Overview of the Common Law Court Movement
by Mark Pitcavage
A Militia Watchdog Special Report
Introduction
The verdict of the county court was predictable. Caught
driving without a license or proof of insurance, Sherry
Scotka received a $350 fine from the Kerr County, Texas,
court for each offense. But Scotka, during the stultifying
summer of 1993, was anything but predictable. Acting as her
own lawyer, she appealed the county court's decision,
requesting that the Texas Appeals Court transfer her case to
the "Common Law Court of the United States of
America." Her argument? That as a "sovereign
citizen" she was outside the jurisdiction of Texas law
or Texas courts.
The appeals court did not look upon her request with
favor, noting that she could not even show that the
"Common Law Court of the United States of America"
existed (1). This was not the first time that the Court of
Appeals had faced this sort of peculiar argument. From the
Texas hill country had come a rash of such claims in the past
several years, all from strangely similar cases: traffic
violations, foreclosures, frivolous suits. Brought to court,
the defendants, usually operating pro se--that is,
defending themselves--would demand that the case in question
be removed to the "Common Law Court for the Republic of
Texas." Finally, in 1992, the Appeals Court noted
officially that there was no such thing. "We hold,"
said the court, "that the Common Law Court for the
Republic of Texas, if it ever existed, has ceased to exist
since February 16, 1846" --in other words, when Texas
state government was organized. It was then that the
defendant changed the transfer reference in her pleading to
the "Common Law Court of the United States of
America," although interestingly the address on the
legal documents remained the same (2).
What the Texas appeals court was just beginning to
perceive were the beginnings of a movement created by
recalcitrant self-proclaimed "sovereign citizens"
determined to wrest control of their lives back from all
forms of government or authority. Appearing first in isolated
spots in Texas and Florida, the notion of "common law
courts" soon spread to Kansas and other farm states,
then quickly across the nation. The "common law court
movement," as it has somewhat clumsily come to be
called, now exists in some form in every state in the
country. In some states, activity is minimal; in others
common law courts are a serious nuisance; in some, they are a
plague on the judicial system. Although featured on
television shows like "20/20," common law courts
did not really breach the public consciousness until the
spring of 1996, when FBI agents surrounded a frigid eastern
Montana farm to wait out two dozen recalcitrant tax
protesters that locals dubbed "freemen." In
reality, however, common law adherents had been active for
years in different areas across the country. Frustrated
county clerks knew of the strange filings made in their
offices; puzzled policemen encountered confrontational
motorists pulled over for homemade license plates; irritated
lawyers discovered that bogus liens had been placed on their
property by court opponents. But there was little public
awareness or understanding of the movement. The media
reported that Oklahoma City bombing suspect Terry Nichols had
declared himself a "sovereign citizen," but treated
it as a random, bizarre act by a right-wing extremist, not as
an action by someone consciously part of an ideological
movement.
Few people knew then that these activities were not just
isolated phenomena. Fewer still, even today, understand that
they are not just part of some movement, but that this
movement has a much longer and more active history than most
people ever suspected. The "common law court," so
called, can be traced back nearly two decades as a form of
right-wing social protest, with roots stretching back still
farther. What common law court activists do and say today
often seems strange and incomprehensible to the average
person, but their deeds and words possess a coherent internal
logic and are part of a very conscious overall ideology.
Understanding the origins of common law courts and why
their members act the way they do will increase our
understanding of them and assist in developing strategies to
combat them effectively. That is the purpose of this
overview.
The Posse Comitatus
The common law courts and sovereign citizens are the
direct ideological descendants of the Posse Comitatus; any
attempt to understand the common law courts must start with
the this group. The Posse, though, is not necessarily an easy
entity to understand.
On one level, the Posse was a right-wing extremist
organization with a more or less definable beginning. In 1969
a retired dry cleaner named Henry "Mike" Beach (a
former member of the 1930s pro-Nazi group, the Silver Shirts)
formed the a group called the Sheriff's Posse Comitatus. In
California, William Potter Gale started a similar
organization, the United States Christian Posse Association,
around the same time. From these beginnings, branches formed
in other areas of the country, numbering around 80 or so by
the mid-1970s. The farm crisis of the early 1980s, for
reasons which will be explained below, caused membership to
rise greatly, particularly in the plains states.
From the start, the Posse caused problems for local, state
and federal authorities. As early as 1974, Thomas
Stockheimer, head of the Posse in Wisconsin, was convicted on
charges of assaulting an Internal Revenue Service agent.
Indeed, the normally placid state of Wisconsin became a
hotbed of Posse activity, due to leaders Stockheimer, James
Wickstrom and Donald Minniecheskie. In northeastern
Wisconsin, Wickstrom--who styled himself the "national
director of counterinsurgency" of the Posse and liked to
conduct paramilitary training--established the
"Constitutional Township of Tigerton Dells," a
"township" that consisted of a compound of trailers
on a farm lot. From there Wickstrom waged a war against local
authorities that resulted, in the mid-1980s, in the eventual
destruction of the "township" and Wickstrom's
arrest (one of many). In other states as well, most notably
Kansas, Posse members repeatedly clashed--with resulting
deaths and injuries--with local authorities.
It was, however, Gordon Kahl of North Dakota who achieved
the most notoriety and became the Posse's first real martyr.
Kahl was a virulent racist and tax protester who traveled to
farm protest meetings across the country's midsection to win
converts to the Posse cause. In 1983 four U.S. marshals and
two local law enforcement officers set up a roadblock to
arrest Kahl for violating the terms of his probation. A
shootout ensued which resulted in the death of two of the
marshals and the wounding of two others. Also wounded was
Kahl's twenty-year-old son. When Kahl fled the state, a
nationwide manhunt--and nationwide publicity--began. Months
later, Kahl was tracked down in Arkansas, where he died
during another gunfight in which a county sheriff was killed.
Eventually, though, the Posse declined as an effective
organization, largely through loss of leadership. Faced with
repeated imprisonments, some leaders such as James Wickstrom
scaled back their activities. Other leaders, such as Henry
Beach and William Potter Gale, died natural deaths, the
latter while appealing a conviction for threatening IRS
agents. Still others, like Kahl, died violently. The result
was that by the late 1980s the Posse was floundering. Always
locally based, pockets of the Posse continued to survive here
and there, but it was no longer a force (3).
As an organized right-wing group, the Posse did not really
survive. But the Posse had never been simply an
organization--indeed, it was hardly ever well-organized. The
Posse Comitatus was much more durable as an ideology.
Thousands, perhaps tens of thousands, of people who never
formally belonged to any Posse group nevertheless subscribed
to Posse ideology. The belief system survived even as the
group faded.
The Posse ideology, and the justifications that result
from it, are complex, but stripped of racist overtones, there
are three main tenets to Posse ideology that are crucial to
understanding how the Posse mindset works. In order of
increasing importance, these tenets are 1) the importance of
local control, 2) the need to avoid legal and financial
authority, and 3) justifications derived from the revelation
of "hidden history."
The Importance of Local Control
The importance of local control to adherents of Posse
ideology was the simplest and most visible feature of their
philosophy. Indeed, the term "posse comitatus"
itself is a Latin phrase that means "power of the
county." Accordingly, Posse teachings argued that the
county government was the highest authority of government in
the country, a belief sometimes misreported as the county
being the only form of legitimate authority. Actually, the
Posse recognized the other levels of government, but
contended that federal or state officials had to bow before
the power of the county sheriff (4).
Avoiding Legal Authority
Because of the emphasis given by Posse members to the
county sheriff, many journalists well into the 1980s
persisted in calling the Posse Comitatus a
"law-and-order" group. But nothing was further from
the truth. The Posses motivation was essentially the
exact opposite of law and order. The Posse wanted to be free
of all obligations to laws its members didnt like, and
to be free of financial obligations as well. Its entire
ideology was specifically designed to achieve this. For
instance, their emphasis on the importance of the county
sheriff was not intended to support greater "law and
order." The Posse argued that it was the sheriff's
responsibility "to protect the people of his County from
unlawful acts on the part of anyone, including officials of
government...whether these be judges of courts or Federal or
State Agents of any kind whatsoever." In other words,
the local sheriff's duty was to shield the citizenry from the
interference of federal, state and local government. If the
sheriff neglected this duty, the people had "the lawful
right under natural law to act in the name of the Sheriff to
protect local jurisdiction." They could arrest people
and hold them "for trial by a citizen jury empaneled by
the Sheriff from citizens of the local jurisdiction, instead
of by the Courts as is the current procedure in most Counties
and which has no basis under law, any act of any legislature
or directives issued by the judiciary or Executive
notwithstanding."
Especially important to the Posse was that sheriffs not be
used to enforce court rulings: "The unlawful use of
County Sheriffs as LACKEYS of the Courts should be
discontinued at once...The Sheriff is accountable and
responsible only to the citizens who are the inhabitants of
his County." Indeed, the Posse offered a thinly-veiled
threat to sheriffs and others who did not accommodate the
will of local citizens: "In some instances of record the
law provides for the following prosecution of officials of
government who commit criminal acts or who violate their Oath
of Office: He shall be removed by the Posse to the most
populated intersection of streets in the township and at high
noon be hung by the neck, the body remaining until sundown as
an example to those who would subvert the law." Many
Posse members proudly wore a pin shaped as a hangman's noose
as a symbol of their membership (5).
"Hidden History" as Justification
The third defining characteristic of Posse ideology is the
peculiar method by which Posse members justified their
positions. They did this through an emphasis--some would say
obsession--on "hidden history." In other words,
they believed that the true history of the United States--and
thus the true laws, the true obligations of citizens, the
true government--had been hidden from the American citizen by
a massive, long-lasting conspiracy. Indeed, the Posses
handbook noted that
"the rule for the Judiciary, both State and
Federal, has been subtle subversion of the Constitution
of these United States. The subversion and contempt for
the Constitution by the Judiciary is joined by the
Executive and Legislative branches of government. It is
apparent that the Judiciary has attempted to alter our
form of Government. By unlawful administrative acts and
procedures, they have attempted to establish a
Dictatorship of the Courts over the citizens of this
Republic. The legal profession has, with few exceptions,
conspired with the Judiciary for this purpose." (6)
Later Posse leaders would develop this simple beginning
into a complex tale of conspiracy and cover-up, over a period
of over a hundred years, designed to subvert liberty.
Given this notion, that the true laws of the United States
had been covered up by conspiring legislators, judges and
lawyers, Posse adherents seek to uncover the hidden history
that has been deprived them. They do this through searching
through law books and legal codes, the writings of the
founders and early legal scholars, the Uniform Commercial
Code, the Bible, and other documents. "People say
were creating our own laws," said Montana Freeman
Russell Landers, "Were not creating anything.
Its right there in the law already." Indeed,
practically any document can become fodder for a Posse
governmental theory. There is no end to what a creative Posse
mind can come up with (7).
One example is the "Missing Thirteenth
Amendment," popularized by Texas activist Alfred Adask.
Posse adherents discovered a draft Constitutional amendment
from the republic's early days, one that would deny
citizenship to Americans accepting titles of nobility. This
was one of many amendments which failed because not enough
states ratified it. But Posse adherents decided not only that
it had been ratified, but that its ratification had been
covered up by a conspiracy. Their erroneous beliefs were
bolstered by discovering some old printed copies of the
Constitution which listed the draft amendment along with
other, actually ratified amendments. Posse
"scholars" combed through state archives, looking
for votes on ratification, or hints of cover-up, and
concluded, not surprisingly, that there had indeed been a
cover-up. Why did the Posse spend all this energy? Because of
the way that they interpreted the meaning of the amendment.
To the Posse, all lawyers had "titles of nobility,"
because they put the term "esquire" after their
names. Therefore, lawyers were not legally citizens of the
United States--but they had engaged to cover up the
Thirteenth Amendment, which would have taken away so much of
their power.
Another example of Posse creativity was the Committee of
the States, the brainchild of Posse leader William Potter
Gale in the 1980s. Gale argued that the Articles of
Confederation, the document that governed the United States
before the Constitution was ratified, had never been
officially repealed and remained in force. Gale then pointed
to a clause in the Articles which said that Congress could
appoint a committee that would handle the general affairs of
the United States when Congress was not in session (under the
Articles, there was no executive branch). Gale interpreted
this to mean that the Committee of the States was a second
Congress, with full and equal powers--he promptly arranged
for a (self-appointed) Committee to come into being.
These different facets of Posse Comitatus ideology shaped
the evolution of the movement in the 1970s and 1980s. The
Posse absorbed much of the tax protest movement, whose
natural inclinations were very similar: to avoid the
obligation to pay income taxes, and to use "hidden
history" as a means, including re-interpreting obscure
or out-of-context parts of the tax code and finding novel
ways of declaring that the 16th Amendment had never been
legitimately ratified. Another, more important, association
made by the Posse during this time period was the development
of close ties with the anti-Semitic religious sect Christian
Identity. Christian Identity, whose members believe that Jews
are descended from Satan, was small in number but
disproportionately influential in the far right. From the
very beginning, Posse ideology was attractive to Christian
Identity leaders (and vice versa). For Posse adherents
looking for the "true law" that conspirators had
erased, Christian Identity advocates pointed to the Bible,
saying that the Constitution was divinely inspired. For Posse
adherents looking for the source of conspiracy, Christian
Identity could point to Jews or "international
bankers" as the culprits. Identity theology and Posse
ideology complemented each other. William Potter Gale, one of
the founders of the Posse, was also one of the most prominent
Christian Identity ministers. James Wickstrom, the most
visible Posse leader, was likewise an influential Identity
figure. Although Posse ideology could always be utilized
without a racist component, for many, Posse and Identity
beliefs went hand in hand.
The development of the Posse ideology also helps to
explain its first rise to prominence during the farm crisis
of the early 1980s, when inflation, falling land values,
rising interest rates, and poor lending practices combined to
create a financial crisis that threatened to overwhelm
farmers of little or moderate means. The Posse offered a
culprit--the international (Jewish) banking conspiracy which
had destroyed the Constitutional/Biblical monetary system and
replaced it with one based on credit designed to suck people
dry. The Posse also offered a solution: its version of the
common law. In February 1981 Missouri farmer Wayne Cryts
confronted federal marshals preventing him from retrieving
his crop from the grain elevator in which it was stored by
telling them, "I am a sovereign individual and a citizen
of the state of Missouri and am operating under common law.
The court order is without the weight of law and does not
have jurisdiction over me." The marshals stepped aside,
allowing Cryts to recover his soybeans. This action, which
made Cryts a hero to desperate farmers, symbolized the hope
and the promise of the "common law." (8)
The Posse and the Common Law
The term "common law" is itself common, but most
people do not know exactly what it means. Its meaning,
though, is pretty simple: it refers to unwritten, judge-made
law (as opposed to written, or statutory, law). Centuries
ago, in England, most petty crimes or complaints were settled
by judge-made precedents, rather than elaborate legal codes.
Robbery was a crime because it had always been a crime,
rather than because there was actually a statute which
described it as such. English common law was easily
transplanted to the American colonies, where the lack of
elaborate legal apparatus--or even law books--facilitated
such a judicial system. Gradually, as legal codes became more
systematic, statutory law began to replace English common
law, with the areas reserved for the latter growing ever
smaller. Common law survives to this day. In states such as
North Carolina, "common law robbery" is a
punishable crime. In Michigan, prosecutors (unsuccessfully)
tried to convict Dr. Jack Kevorkian on charges of common law
murder for his role in assisted suicides.
Posse ideology, however, places a far different meaning
and reliance on common law. Though there are many different
strains and theories of Posse common law, a common thread
that runs through most of them is that the common law is a
separate, parallel legal/judicial system, one independent
from and not subordinate to statutory or written law. For
example, throughout the 1980s and 1990s, Posse adherents came
up with inventions such as "common law trusts" and
"common law banks." What these concepts have in
common is the notion that the normal written laws governing
the establishment of trusts or the regulation of banks do not
apply to these institutions, because they are beholden only
to the "common law." In other words, the term
"common law" was attached to the word
"bank" as a (futile) attempt to avoid the law.
Every common law theorist or group has a slightly
different explanation for the origins of and nature of their
version of "common law," but the following broad
summary of their beliefs is general enough to hold for most
circumstances. The key, as mentioned above, is that Posse
adherents believe in "common law" as independent of
(and even hostile to) other alleged legal systems, rather
than all being part of a whole (9).
According to common law doctrine, the common law
originated in the Middle Ages to protect property rights. The
American Revolution destroyed allegiance to the British
crown, but kept common law rights of property. This situation
made every man "sovereign" over his own property.
Neither Congress nor state legislatures nor county or city
ordinance nor judicial ruling by any courts could deprive
people of their common law rights, including their rights to
"allodial" property (an ancient concept describing
property that could not be lost for failure to pay taxes; it
never applied in the United States, although some states did
enact "homestead" laws). Grievances were to be
settled by common law juries which decided the facts and the
law of the case.
Common law, however, was not the only form of law
possible. Common law theorists describe many other types of
law, although sometimes they distinguish between them and
sometimes treat them as synonymous. One such is "Roman
Civil Law," which some argue is the system of law
generally used in continental Europe. Roman Civil Law ignores
rights to due process. Another form of law is Law Merchant,
which deals not with money "of substance" (silver
and gold), but rather with credit and negotiable instruments.
These terms are often used interchangeably; one common law
publication lists as types of "Roman Civil Law" all
the following: Admiralty Law, Law Martial, Law Merchant,
Maritime Law, Martial Law, Martial Law Proper, and Martial
Law Rule.
Essentially, common law theorists argue that these other
forms of law have been used by unscrupulous lawyers,
merchants and others to subvert and replace the common law.
Some include another type of law among the
"unlawful" types; others consider it value neutral:
this is Commercial Law, which governs commercial transactions
"of substance." Commercial Law is very important to
common law theorists; and is discussed below.
The subversion of the legitimate common law was a long
process, with many steps. The original judicial system was
based solely on common law and, when applicable, commercial
law. Roman Civil Law in this country was confined to the law
of the sea (Admiralty). Common law theorists cite the
"missing" Thirteenth Amendment, the Limited
Liability Act of 1851, the Civil Rights Act of 1866 and the
Fourteenth Amendment as early steps along the way to the
subversion of the common law. The last step is the most
important. Most people know the Fourteenth Amendment as the
Constitutional amendment that gave citizenship to the freed
slaves after the Civil War. However, common law theorists see
the Fourteenth Amendment as establishing an entirely new
class of citizenship designed to make persons subordinate to
the federal government. In the words of one theorist,
"the [Fourteenth] Amendment was instrumental in shifting
citizenship of each American from being primarily a state
citizen to being a citizen of the private corporation
of government." Previously, the federal government only
had authority over Washington, D.C., and federal territories.
With the ratification of the Fourteenth Amendment, however,
citizens of the states could unwittingly give up their common
law rights and contractually enter into the jurisdiction of
the federal government. According to common law theorists,
this was implemented by and designed to benefit large
corporations or "international bankers." Now the
law could be used to "financially enslave the masses and
destroy the republican union." The theorists believe
this led to further injustices from the removal of the gold
standard and the declaration of states of emergency in the
1930s to the unjust "de facto" government that
operates today (10).
Common law theorists offer a way out of the predicament
they assert exists. They argue that Americans become
"Fourteenth Amendment citizens" only voluntarily--through
entering into some sort of contract with the federal or state
governments. "Contracts" are obviously defined
quite liberally as any sort of agreement or reciprocal
relationship, including paying income taxes, applying for
social security numbers, and using drivers licenses.
Common law theorists refuse to accept the alleged subversion
of common law rights. In the words of one common law tract,
"Each freeborn, Sovereign American individual has the
authority and the Right to deny and to disavow all Equity
jurisdiction, and to refuse to acquiesce to the jurisdiction
of Courts of Equity, or to Equity jurisdiction of any
Executive or Legislative branch of government agency or
agent, State or Federal or County...Compelling a freeborn,
Sovereign American individual to do anything, except upon the
verdict of a Common Law Jury, constitutes an enforcement of
the alien and evil Roman Civil Law and is in fact fascist
totalitarianism." (11)
Simply stated, Americans can refuse to participate.
Americans can revoke their social security numbers, their
license plates, their income tax forms. They can declare
themselves once more to be "sovereign citizens." In
so doing, they remove themselves from the Roman or Admiralty
Law, and are once again only bound by the common law. They
gain near immunity from the "de facto" court
system.
This solution explains much of the bizarre behavior of
Posse adherents. Some are arrested repeatedly for driving
without license plates, registration or a license, yet keep
on doing it: they believe they have a biblical right to
travel and refuse to enter into contractual relationships
with the government. In court, sovereign citizens refuse to
accept the aid of lawyers, who are "titles of
nobility," and instead defend themselves, usually
unsuccessfully. Most important of all, they continuously
challenge the court on questions of jurisdiction and claim
that the court has no authority over them. For instance, it
is common for Posse adherents to point to a gold-fringed flag
in the courtroom, which they argue is a sign that the court
is an Admiralty jurisdiction court. They believe they are
only answerable to a common law court. Common law literature
dictates that "when summoned into any court, the first
thing a party must do is analyze and identify the nature of
the charges, jurisdiction of the court, and the status of the
accused, to determine if the status of the accused falls
within the statute and the jurisdiction of the court."
This fervent belief often leads them to obstreperous and
outrageous behavior when brought into a court they claim is
illegitimate (12).
The following brief excerpt from a March 1996 detention
hearing for arrested Montana Freemen leaders Leroy Schweitzer
and Daniel Petersen provides an excellent example not only of
such behavior, but of the concerns of the defendants
regarding jurisdiction and "titles of nobility":
THE COURT: The record should also show that standby
counsel for appointed for both --
DEFENDANT PETERSEN: I object and take exception.
DEFENDANT SCHWEITZER: I object to any reference to
standby counsel and related to Leroy Michael its an
invasion of privacy. I object. I ask that he be removed
from the courtroom.
THE COURT: are present in the courtroom.
DEFENDANT SCHWEITZER: I do not have assistance of
counsel. None. I reject it. Im not pro se. I am
myself. This is a common law venue.
THE COURT: And I want to advise both defendants, Mr.
Schweitzer present here in the courtroom, as well as Mr.
Petersen from his cell, once again they are entitled--
DEFENDANT PETERSEN: I object and take exception, you
f------g pervert.
THE COURT: --to the appointment of counsel to
represent them in all proceedings, and I urge you to
accept appointed counsel.
DEFENDANT SCHWEITZER: There will be no exception, no
consent, unequivocal no. I will not accept a title
nobility in common law venue. I do not waive common law
venue.
No one is going to represent me as sworn in from the
appellate branch of the Supreme Court which is voluntary
jurisdiction. And you better start reading your law. Why
do you think the code commissioner is now putting the
codes back into special television programs that came out
just recently because of the edict that we put on the
Joint Chiefs of Staff. And if you press want a story, go
get it, because you are--
THE COURT: Mr. Schweitzer, your objection is clear I
think, youre refusing counsel. (13)
Common law adherents are not just obstructionist. They
also strike back. Common law theorists have
"discovered" how to use that other form of law,
commercial law, as a weapon against those people who persist
in misusing Admiralty Law. The key weapon in the commercial
law arsenal is the lien. Common law theorists claim that once
you place a lien on someone's property, they must either
successfully rebut your commercial affidavit, convene a
common law jury, or pay the lien. The beauty of commercial
liens, to common law theorists, is that they are
"non-judicial." That is, the liens bypass the
judicial system, which theorists believe has been thoroughly
corrupted. Thus often one of the first retaliatory responses
by a common law adherent to unwanted government interference
is to place a lien upon the property of an offending
official. In the real world, the illegitimate liens convey no
obligations at all, but people on whose property such liens
are placed often must go through considerable effort and
expense to get them removed, even though they are invalid. Of
course, the Posse adherents are well aware of this.
The First Wave of the Common Law Movement
Although the very first Posse booklet mentioned the
importance of common law, it took years for such a complex
and elaborate ideology to develop. But by the end of the
1970s the Posse common law framework was complete and
well-disseminated. People across the country acted in similar
ways, indicating the degree to which Posse ideology had
solidified.
Though Posse members such as James Wickstrom and Gordon
Kahl were in the news more often, a less-known figure, George
Gordon, provides an excellent example of how the common law
philosophy was used in practice. Gordon, from Boise, Idaho,
was a cantankerous man who adopted Posse ideology
wholeheartedly as a way to rid himself of unwanted societal
obligations society. Primarily a tax protester, the
high-school dropout began to study "common law"
principles as a way to avoid paying federal and state income
taxes, but his opposition expanded to include many court and
police procedures. He developed a following in Boise, where
he eventually established (in the basement of a local bar)
the Barristers Inn School of Common Law. Gordon lectured on
common law ideology to small audiences in return for fees.
The following chronology offers some indication of the scope
of his actions:
--April 1982. Gordon is arrested after refusing to
comply with a traffic officer's instructions when pulled
over. After being booked, he appears in court clad only
in shorts and a T-shirt, because he tore up all his jail
clothing.
--May 1983. Gordon files a $700,000 federal suit over
a $615 tire bill he did not pay. A collection agency and
local officials had taken him to court, and he filed his
suit against them, claiming a violation of his
constitutional rights in that he was coerced to submit to
an oath against his religious beliefs. He also claimed to
have been beaten and verbally abused by Ada County jail
personnel. Officials successfully move for dismissal of
the suit..
--August 1983. Gordon leads 100 people in a protest in
a statehouse hearing room to demand the elimination of
state income taxes.
--September 1983. Gordon leads another protest before
a legislative subcommittee to demand reforms and
reduction of government services and taxes. States
Gordon: "I don't want your damned services and I
don't want to pay for them...When the teachers scream for
more money, let the children go home and be taught there.
I don't want my children to go to public school. I'll
teach them at home. I created them. I'll teach
them." and "Did it ever occur to you that we
might not want those services? Did it ever occur to you
that we don't want the police driving up and down our
streets spreading their police-court tyranny?"
--November 1983. Gordon files a $3 million lawsuit
claiming a local hospital treated his daughter without
permission and violated his civil rights in trying to
collect $2,000 for care expenses. He claims hospital
staff performed "pagan practices" on her
against his will, then sought payment for her six-day
stay. The suit alleges the girl was taken to hospital by
an unidentified person and admitted on the grounds that
state law allows a hospital to hold a child if there is a
suspicion the child has been abused. The hospital
successfully moves for dismissal.
--March 1985. Gordon loses a case in the Idaho Court
of Appeals in which he argued that his constitutional
rights to travel were violated by being required to have
a driver's license. Gordon contends he is a
"freeman" and exempt from regulations. The
court sentences him to 35 days in jail for driving
without a license, operating an unregistered vehicle and
not having proof of liability.
--February 1986. Gordon, having moved from Idaho to
Isabella, Missouri, now operates the George Gordon School
of Common Law. He also travels around the plains states
giving seminars on common law tactics, charging fees of
$175 for individuals, and $225 for couples. He offers
$1,000 week-long seminars for people in small groups and
sells videotapes of his seminars. A promotional leaflet
says: "We'll teach you how to stop a foreclosure,
the common and civil law of real property, why national
banks may not lend credit, the use of liens to supersede
a bank mortgage, why bank fraud is an affirmative defense
to foreclosure, and the courtroom strategy and procedure
to accomplish these actions."
--November 1986. Gordon claims hundreds of students
have been taught at his school, where he teaches them to
not make "contracts" with the state. Payment
for his classes must be made only in gold or silver, or
barter. "I don't think I am a threat to
anybody," he says. "I am a legal strategist. I
don't give legal advice. I run a school and teach law,
and that's freedom of speech." Gordon has been
arrested more than 10 times in the past five years for
various traffic violations relating to not having license
or registration. He claims his school generated about
$100,000 during the previous year, on which he paid no
income tax.
--August 1995. Gordon is still living in Missouri and
still operating the George Gordon School of Common Law.
He charges 21 ounces of gold for a seminar. Says Gordon,
"The average guy who walks in here, he's an
anarchist, he wants to break the law. He wants to do what
he wants to do without putting himself in the envelope of
laws and rules. All George Gordon's ever done is research
the law and learn how it is applied and made sure he is
in that envelope. And I'm as happy as a clam at high
tide." (14)
George Gordon, though his commitment to common law
theories has been quite-lived, was never a lonely
practitioner. In fact, "common law" schools
proliferated in the 1980s, under names like the "John
Doe School of Common Law, " the "School for the
Last Days," and the "Universal Life University
School of Law." Tax protest groups such as Your Heritage
Protection Association also issued pamphlets, seminars and
videotapes on common law ideology.
By the early 1980s, practitioners of common law ideology
had gone so far as to advocate setting up their own court and
jury systems, in full defiance of the "de facto"
systems they opposed. William Potter Gale, visiting James
Wickstrom in Tigerton, Wisconsin, in May 1981, responded to
news that a Wisconsin legislator proposed a bill against
paramilitary training by saying, "I think you guys ought
to hang that son-of-a-bitch." Wickstrom replied that the
legislator deserved some sort of hearing by a
"citizens grand jury" first. By December of
the following year, Wickstrom had actually formed such a
"grand jury," one of the first "common law
courts" to begin operation. Nor was it the only one. In
January 1983, sheriffs in Kansas received letters from the
"Citizens Grand Jury of Kansas," the members of
which threatened local judges and said if they were not
jailed, Grand Jury members "would take the law into
their own hands and the judges would end up buried in a
potters field." (15)
These self-styled grand juries and courts demonstrated the
willingness of Posse members not only to oppose local or
federal government, but to go so far as to set up parallel
governments of their own. One of the best examples of this
growing sentiment in the early 1980s was the
"township" movement. The township movement was
started by a Utah tax protester named Walter P. Mann III, who
sold information packets for $20 detailing how to avoid
filing federal income tax returns and offered $1,000 seminars
on forming "common law governments." His seminars
became popular, as did his ideas about townships. As early as
1980 a group in South Carolina formed a "township"
based on common law. Self-described survivalists who were
convinced that the United States was about to collapse
financially, they wanted to be ready with "an ancillary
form of government." (16)
Walter Mann popularized the township concept. He argued
for the creation of heavily armed communities based on
"common law," which he claimed superseded the laws
of the United States. By 1982, Mann boasted of chapters in 40
U.S. cities. The township concept was popular primarily
because, according to the strictures, each township was
completely autonomous, completely independent--most
especially, independent from the federal government. Mann
follower Gordan Jenkins established "Zion Township"
in southern Utah, while James Wickstrom established the
"Township of Tigerton Dells" in Wisconsin. Gordon
Kahl was in the process of establishing a township the day
marshals attempted to arrest him. Other notorious townships
were established in Walla Walla, Washington and Texas. It was
no coincidence that a decade later the Montana Freemen named
their Montana refuge "Justus Township." These
townships, according to Mann's theories, allowed their law to
take precedence over the "'equity' court system."
Of course, local and state authorities were not
particularly pleased with people setting up autonomous
"townships" in their midst, often within the
boundaries of other communities. Township advocates said that
their townships had no geographical boundaries. Legitimate
officials responded by enforcing tax laws, zoning laws and
statutes against impersonating public officials. Typically
clashes started over traffic tickets. For instance, a member
of the "Southern District of Texas Township Court,"
a "people's court" operating north of Houston in
the early 1980s, was issued a traffic ticket in Montgomery
County, Texas. The townshipper attempted to pay the traffic
fine with a bogus money order--thirteen years before the
Montana Freemen would become famous for issuing such
fraudulent financial instruments. When the city judge refused
to accept the phony money order, the Township Court issued
subpoenas and summonses for county officials to appear before
it. Instead Texas Rangers and local officials raided the
township court and arrested three members for tampering with
government records and impersonating a government official.
Common law adherents responded to such moves with their
favorite weapon: liens. Richard Cooper, "Supreme Court
judge" of the common law court of Zion Township, for
instance, filed 41 property liens totaling $12 million in the
early 1980s against various federal, state and local
officials. In Walla Walla, Washington, Posse members issued
"common law liens" totaling $29 million against ten
officials. The courts ruled the liens invalid, as always, but
the tactic nevertheless proved highly frustrating to public
officials trying to perform their duties. Common law court
adherents found placing liens a successful tactic because the
liens discouraged officials from acting against Posse
members, they clogged the legal system, and sometimes had
other uses as well. For instance, when Maryland officials
decided to dispute the status of a Posse Comitatus group in
Maryland that had claimed their posse was legal, the leader
of the local group sent his followers to every courthouse in
the entire state to file property liens against every
district and circuit court judge. Posse members hoped this
would disqualify the judges from hearing the case against
them. However, they inadvertently missed one judge, who was
secretly assigned to hear the case. He threw out the liens
and declared the Posse's activities illegal. Another
imaginative creation was the notion of "signature
liens," used by a common law advocate, Raymond L.
Montee, in 1982. Montee filed "common law signature
liens" against sixty public officials and their spouses,
which he claimed would prohibit officials from signing their
name. Montee argued that if they were not allowed to sign
their name, they could not vote and would have to be removed
from voter lists.
The total amount of bogus liens placed by common law
advocates on officials in the early 1980s is not known, but
estimates run into the hundreds of millions of dollars. Many
if not most public officials were uncertain how to respond to
such pseudolegal tactics. The federal government, however,
soon made it illegal to place liens on Internal Revenue
Service agents. Several states also adopted statues
prohibiting the filing of bogus liens.
Decline and Resurgence
By the mid 1980s, the initial tide of common law activism
surged and then waned. By this time a large number of leaders
on the far right were either dead, in jail or in
"retirement." Events such as the prosecution of
members of The Order, the shutting down of the
survivalist/Christian Identity compound of the Covenant, the
Sword and the Arm of the Lord (CSA), the destruction of the
township of Tigerton Dells, and the much-publicized trial of
various white supremacist leaders for sedition in Fort Smith,
Arkansas, worked to paralyze the leadership of the far right,
including the Posse Comitatus and its adherents. For the
Posse, too, the fact that the farm bankruptcy crisis had
eased also resulted in a loss of support.
However, the Posses ideas about the common law never
disappeared. Tax protesters continued to espouse Posse
ideology, and Posse believers continued, although with less
frequency, to place fraudulent liens and use other Posse
tactics. Perhaps one could think of the movement as existing
in a state of hibernation, waiting to emerge again in a more
favorable climate. The early 1990s seemed to provide that
climate. Events such as the infamous standoff at Ruby Ridge,
Idaho, and the tragic end to the standoff at the Branch
Davidian compound in Waco, Texas, gave renewed energy to the
"patriot" movement, as it now called itself. It
fueled the fires of those who believed that a tyrannical and
illegitimate government was usurping the sovereign rights of
freemen.
From this climate of anger and paranoia emerged a new
leadership for the common law movement. Some of the faces
were familiar. From Wisconsin came Thomas Stockheimer, one of
the leaders of the old Wisconsin Posse Comitatus. Stockheimer
and his associates formed a new group called Family Farm
Preservation, which encouraged the use of bogus checks and
money orders as a way to defeat creditors and government
agents. From Texas came a roofer named Alfred Adask, who
started publishing AntiShyster Magazine, a periodical
devoted to popularizing common law tactics, particularly the
use of bogus liens. Adask, running for a seat on the Texas
Supreme Court in 1992, received more than 200,000 votes in
that state. In Colorado, a veterinarian named Eugene
Schroeder, a former leader in the Posse-sympathetic American
Agriculture Movement, began publicizing the notion that the
Constitution had been suspended since 1933.
Nowhere more than in Florida, however, was the movement so
strongly resurgent. Tax protesters, white supremacists,
common law court advocates and others combined to give new
energy to Posse ideology. Some of the sovereigns
concerns were traditional, such as the banking system and the
Federal Reserve. Other concerns included those events that
catalyzed the related militia movement, such as the standoffs
at Ruby Ridge and Waco. And there were new issues as well.
For all the talk by common law adherents criticizing the
intrusive federal government, what angered many of them most
were the actions of local governments, particularly regarding
zoning and building regulations. A catalyzing issue for many
in the largely-male movement was the issue of divorce
settlements. Many "sovereigns" felt powerless in
the face of a legal system that seemed to give them no say.
The emergence of Floridas first common law court in
the mid-1990s reflected all of these concerns. The guiding
spirit behind the courts emergence was Emilio Ippolito,
a Tampa, Florida, property owner who possessed millions of
dollars worth of low-income housing. Ippolito, along with his
daughter Susan Mokdad, a co-owner, fought a long-running
battle in the 1980s and 1990s with city authorities over
various building code violations in Ippolitos apartment
buildings. The structures incurred repeated fines for faulty
wiring, and missing extinguishers and smoke alarms. Some were
declared fire hazards and closed down. As their struggles
with the city intensified, Ippolito and Mokdad became
increasingly politicized. Ippolito first formed Defenders of
Life and Property, Inc., in 1991, a group opposing city code
enforcement boards. By 1993 he and Mokdad had become leaders
in a more radical group that called itself Pro Se Litigants.
Pro Se Litigants met monthly in the Orlando Public Library,
where its members discussed their various legal problems and
passed around copies of Alfred Adasks Anti-Shyster.
Some fought local authorities over permits and ordinances;
others contested divorce settlements or fought wage
garnishments. They represented an increasing frustration with
a non-responsive court system in which the only winners
seemed to be licensed attorneys. Among the groups other
leaders were Charles Eidson, founder of the white supremacist
Church of the Avenger, who repeatedly clashed with local
authorities, not only for his racial views but for flouting
laws on dumping of waste, and Daniel Schramek (17).
Schramek himself had long been making a living by
providing an alternative to hiring lawyers. Since the 1980s
he had been a self-styled "estate planner," which
meant drew up legal documents for people, although he was not
an attorney. He was also local director of a relatively
mainstream group, HALT (Help Abolish Legal Tyranny).
Schrameks participation in divorce cases brought him
into frequent conflict with local judicial authorities and
lawyers, many of whom claimed he was practicing law without a
license. Actions such as signing a dead mans name on a
deed finally resulted in a court order in 1993 to stop
Schramek from advising people on legal issues or preparing
legal documents; this order caused Schrameks business
to fail, but did not stop Schrameks practices.
Indeed, by 1993 Schramek, Ippolito, Mokdad, Eidson and
others in the group had launched dozens of suits against
lawyers, judges, the Florida Bar, and other organizations and
individuals. Eidson went so far as to post a document in the
Hillsborough County courthouse calling for the formation of a
"posse comitatus." Ippolito and Mokdad even served
brief stints in jail for fighting with bailiffs during one
trial. By then they had lost much of their property in their
continuing and losing battle with city authorities as it was
seized or condemned for various building violations. Hardened
veterans now, thoroughly disenchanted with the existing legal
system, it was an easy step for them to form in mid-1993 a
legal system of their own, the "Constitutional Court of
We the People." Ippolito and Mokdad and others not only
formed the court, but advertised in local papers that they
would hear divorce proceedings for a $25 fee. Within a year
they moved from bogus divorce proceedings to issuing arrest
warrants for local judges. The Constitutional Courts
"Fugitive Warrants Unit" warned judges to
"schedule appointments" or face "physical
arrest at your home or workplace by the Militia which could
result in a dangerous confrontation." (18)
The common law court finally went too far when, in support
of the California tax protest group called the Pilot
Connection Society, it mailed threatening letters to the jury
trying a fraud case against the tax protest groups
leaders. Ippolito, Mokdad, and others were arrested and
indicted in the spring of 1996 on conspiracy, obstruction of
justice, and other charges, covering the arrest warrants, the
Pilot Connection letters and threats against other federal
officials and jury members.
The Constitutional Common Law Court of Ippolito and Mokdad
was not the only such "sovereign" group in central
Florida; indeed, it was merely at the center of a web of such
activity. Charles Eidson had his own common law group, the
"Tampa Freedom Center." He offered common law
advice and issued bogus liens. Five sovereigns were convicted
in the Premier Benefit Capital Trust scheme, which defrauded
investors of more than $7.5 million; two of the principles,
Janice Weeks-Katona and her son, Jason Weeks, were convicted
on additional charges, including plotting to kill U.S.
District Judge Steven Merryday in Tampa, Florida. Similarly,
two couples, members of a group called the American Citizens
Alliance, received sentences for threatening two judges and
filing fraudulent $25 million liens against them in
retaliation. Members of the Alliance openly advocated killing
police officers; its leader is in jail on federal charges of
fraud. Other Alliance members included George Sibley and
Lynda Lyon, who fled Orlando on aggravated battery charges
rather than give themselves over to a "fraudulent and
unconstitutional court." While fugitives, Sibley and
Lyon murdered an Alabama police officer and are currently on
death row. Three freemen in Orlando, members of
"American National Freeman" as well as
Ippolitos common law court, were convicted in early
1996 on 21 counts of conspiracy, mail fraud and obstruction
of justice relating to bogus liens they filed. Other common
law groups, such as the Guardians of American Liberty, were
less openly confrontational, but still operated to spread the
Posse ideology across the state, as did numerous individuals,
who labeled themselves "freemen" or "sovereign
citizens." Individuals were able to wreak just as much
havoc on the legal system as groups. (19)
Florida was an early hotbed of common law activity, but
the movement grew. From Florida and Texas and Wisconsin, and
from resurgent Posse members in other areas, the common law
movement spread like wildfire across the country. At meetings
in Kansas and Oklahoma hundreds of people congregated to
learn common law tactics, some of them paying large amounts
of money for the privilege. Across the country, common law
adherents began establishing versions of common law courts,
which they called "Our One Supreme Court." They
believe that the Constitution, referring to the judicial
power of the United States being vested in "one Supreme
Court," did not mean the establishment of one Supreme
Court, but rather meant local common law courts which are the
highest judicial authority in the land. By 1995, officials in
Nebraska detected common law activity in almost half of the
states's counties. Similar surveys in Ohio discovered common
law activity in almost every single county in the state. By
mid-decade, certain hubs of activity had arisen: in Montana,
the so-called Montana Freemen, fugitives from the law,
offered classes on common law strategies, especially bogus
money orders and checks, to people from around the country.
In Ohio, groups such as "Rightway Law" offered
common law seminars, while the central Ohio "Our One
Supreme Court" received national attention for its
activities. Indeed, by 1995 in Ohio, one common law leader
had been killed in a traffic stop confrontation on a rural
road, while another was in jail for assaulting a police
officer and a third a fugitive for the same offense. Still
another prominent leader had been convicted on fraud charges.
Common law court activity was also especially high in
California, Colorado, Idaho and Missouri, but no state was
completely devoid of such activity.
As in the 1980s, there were many different types of common
law activity, including tax protest activities, issuing
arrest warrants, and establishing common law courts. Many
common law actions were triggered by some sort of
confrontation between a "sovereign citizen" and
some authority figure, whether it be the IRS, a loan officer,
or a state trooper issuing a traffic citation. It is at that
moment that the adherents fanatical nature is revealed,
often turning the most minor incident into a violent
confrontation or even an armed standoff.
One typical example is the case of James Conrad Gutschmidt
of Mercer Island, Washington. In February 1996, Officer Glenn
Sawyer of the King County Airport Police/Aircraft Fire-Rescue
Division spotted a burned-out headlight on a car in a
restaurant parking lot near Boeing Field Airport in South
Seattle. Sawyer pulled up to the vehicle, occupied by
Gutschmidt and two friends. Sawyer told Gutschmidt that the
stop was only a safety stop and no citation would be issued.
He asked to see Gutschmidt's driver's license. Gutschmidt
replied that he was not "driving." Sawyer repeated
his request. When Gutschmidt finally complied, Sawyer went
back to the car and pulled up the license number on the
computer, where he discovered a restraining order from a
family law court, two failures to appear, two paid speeding
tickets, and two suspended license actions for failure to
appear and two unpaid tickets. Sawyer asked Gutschmidt to
step out of the vehicle. Gutschmidt refused, causing Sawyer
to call for another officer to aid him. The two demanded that
Gutschmidt leave his vehicle, which he finally did. After the
confrontation, Gutschmidt was arrested on charges of
obstructing an officer arrest. In the courtroom, Gutschmidt
was no more cooperative. When the judge asked where he lived,
Gutschmidt replied, "In my body, which is the temple of
God." Gutschmidt having no fixed address, having been
evicted earlier, the judge decided there was reason to
believe Gutschmidt would again fail to appear at the
readiness hearing and set bail at $1,000.
The police officers might have thought that the irritating
episode was over, but retaliatory sequels to such events are
a common occurrence. A few months later, Gutschmidt took his
grievances to the local "Our One Supreme Court,"
where he charged the two officers with a variety of offenses
and asked for a judgment of $10,000 in gold or silver (plus
costs) against them. The common law court issued a summons to
the two officers to appear before it, or face "judgment
by default." The court also recorded for Gutschmidt an
action against King County, the judge scheduled to try
Gutschmidt's case, and Sawyer and the other police officer,
and ordered that the case be dismissed and the thousand
dollars in bail returned. The police officers ignored the
summons and other documents, but were nevertheless worried
about them, and not without reason. They could not guarantee
that a group of sovereign citizens would not show up at their
front doors and attempt to "arrest" them. In
another, unrelated action, Gutschmidt secured $170,000 common
law court fine against Interest Savings bank, the bank that
foreclosed on his house (20).
Not only do the common law courts issue summonses and
judgments, but the courts and their adherents are especially
active in placing bogus liens on the property of individuals
or institutions with which they have disagreements. What was
a nuisance in the 1980s turned into a serious problem
nationwide in the 1990s. Common law court members filed liens
against police officers, judges, city officials, banks,
utility companies, businesses, and neighbors. Because such
liens often go unnoticed until the recipient tries to sell
his or her property, there could be thousands more liens
still undiscovered. The filed documents look legitimate; in
early 1996 a county sheriffs department in Colorado
even served some common law court documents on a local church
before noticing that they were bogus. Not only have Posse
adherents become adept in drafting such documents themselves,
but in a disturbing trend, some are finding legal
practitioners willing to participate in such schemes. Several
disbarred lawyers--as well as the occasional practicing
one--have been known to prepare common law documents. To give
but one example, in the spring of 1996, attorney Jerry
Wilkins of Waxahachie, Texas, was one of four men convicted
in that state of passing more than $61 million in fake money
orders through their group "USA First." As a
result, there is no shortage of people able to create
realistic counterfeit money orders or bogus liens.
The paper value of the liens known about thus far runs
into the trillions of dollars. The dollar amount of these
liens is not as significant--because the liens, after all,
are bogus--as is the fact that in many states it can up to
thousands of dollars to have such liens removed. When the
"Common Law Court of Pleas" in Arlington, Texas,
filed a $1 billion bogus lien against the A. H. Belo
Corporation (owner of the Dallas Morning News), the
company had to pay $12,500 in legal fees to get it removed.
A.H. Belo Corporation could spare the money; the average
sheriffs deputy or county clerk cannot (21).
Recently, many states have passed new laws making such
liens easy to remove or making the filing of bogus liens
criminal. Other states have dusted off old laws against
impersonating public officials or criminal syndicalism in an
attempt to deal with the actions of these courts. In most
cases it is too soon to tell whether these new efforts will
enjoy success. It is important to note, however, that in
almost every case, the states have been reactive in nature,
responding sluggishly to the tactics of the common law court
movement. In contrast, the common law movement itself has so
far proven itself extremely creative in discovering new
strategies and tactics.
The most prominent example of common law activity, of
course, is the group of people known as the Montana Freemen.
Near Jordan, Montana, a group of unsuccessful farming
families decided to resort to common law activity to stave
off debt and foreclosure, while to the south, in Roundup,
Montana, a smaller group of tax protesters, steeped in Posse
ideology, taught classes on how to use bogus checks and money
orders. In both locations, quasi-standoff situations
developed, local authorities not having the physical power to
remove the Freemen from their foreclosed-upon land. Defiant,
the Freemen escalated from frivolous lawsuits to bogus liens
to common law courts and arrest warrants. In September 1995
the Freemen in Roundup drove in a convoy north to Jordan and
merged with the other group. By now the Clark family ranch
near Jordan had become, in true Posse fashion, "Justus
Township." It also became a haven for common-law
adherents fleeing from the law from Colorado, North Carolina,
Utah and elsewhere. Garfield County, where the Clark ranch
lay, simply did not have the resources to deal with so many
armed and committed extremists. Common law adherents from
across the country traveled to Jordan to learn how to use
bogus checks from group leader Leroy Schweitzer. Not until
March 1996, when federal authorities finally stepped in, was
there a serious attempt at bringing the group to justice.
Local citizens cheered as the FBI instituted a peaceful
81-day standoff that resulted in the surrender of the
Freemen, now awaiting trial on numerous charges.
The resurgent common law court movement, though a direct
descendant of its 1980s predecessor, has exhibited certain
marked differences from its older incarnations. Of these,
perhaps the most important is increased organization and
increased cooperation between groups and individuals. The
1990s movement has exhibited an unprecedented degree of
organization. Much of this has been due to the development of
advanced technologies, including inexpensive fax machines,
laser printers and the Internet. While in the 1980s a typical
group might have operated only locally after attending some
seminar on the subject, in the 1990s such groups are in
contact with people of similar persuasion across the entire
country. Magazines such as The AntiShyster and The
Americans Bulletin cater to common law views, while the
number of people traveling around to offer seminars (or
seminars by videotape) is greater than ever. Even more
obvious has been the impact of the Internet. World Wide Web
sites that offer common law material are very numerous. This
range of this material is breathtaking, from long discourses
and legal rationales for common law activity to detailed
instructions on how to create "nonstatutory
abatements" and "common law liens." Automated
e-mail discussion lists allow common law adherents to share
tactics with each other, something they do on a regular
basis. The average common law proponent in the movement today
potentially has much more information at his fingertips than
did his predecessor a decade ago.
Another difference between the old movement and the new
are the different strategies that have more recently emerged.
While many of the goals of modern day common law court
activists remain the same as those active in the 1980s, some
goals have changed. The typical common law activist in 1983
might have been an angry farmer threatened by foreclosure who
attempted to place a lien on his own property in a (futile)
effort to forestall legal action. While a 1996 common law
activist might engage in a similar battle, perhaps over a
home mortgage, a zoning restriction, or in retaliation for a
divorce action, there are a growing number of committed
common law adherents who openly advocate common law tactics
as a way to overload the legal and judicial system, with the
ultimate goal of eventually bringing it down together. One of
the reasons the Montana Freemen taught people how to issue
bogus money orders was to destroy the hated Federal Reserve
System. Others were content with lesser goals, such as
flooding local county clerks' offices and local courts with
so much common law activity that local officials would be too
distracted to perform their lawful duties. This tactic has
been especially effective in sparsely populated counties,
where county governments have neither the staff nor resources
to cope with such efforts. Another more immediate result of
this strategy has been attrition, as many public officials
and employees have become so frustrated dealing with these
tactics that they have resigned from public service.
The common law court movement has also seen increasing
violence and threats of violence, leading to great concern on
the part of individuals whose jobs put them in contact with
its members. Violence was always a possibility with the old
Posse, particularly in farm states like Kansas, yet today the
threat or actual use of violence seems much more widespread.
Agencies like the Internal Revenue Service have long had to
deal with the radical actions of the tax protest wing of the
movement. People like Joseph Bailey, convicted of trying to
blow up an IRS building in Reno, Nevada, in December 1995,
keep the IRS vigilant. But now fanatical common law advocates
have taken serious measures in their wars against other
public officials. Many judges, prosecutors, police officers
and other public servants have received arrest warrants; some
have received death threats. In California, when Stanislaus
County Recorder Karen Mathews refused to file the liens and
other documents of the local common law group, Juris
Christian Assembly, members of that group ambushed her in
front of her home in early 1994, attacking her with blows and
cuts from a knife. One assailant dry-fired a pistol
repeatedly at her head, warning her to "do your
job." In Montana, the Montana Freemen were thwarted in
1995 in what was apparently an attempt to kidnap (and perhaps
hang) law enforcement and criminal justice officials who
opposed the Freemen. The following year, in Idaho, common law
proponent Gary DeMott, head of a group called "Idaho
Sovereignty," announced his plans to arrest not only a
local judge but hundreds of county officials across the
state. In the end, he backed down from his confrontational
statements, but not before creating considerable concern and
anxiety. The past actions of Posse adherents such as Gordon
Kahl in the 1980s and George Sibley and Linda Lyons in the
1990s, individuals who translated threats of violence into
the reality, demonstrate that such threats must be taken
seriously (22).
And additional feature of the resurgence of the common law
court movement is greater numbers and distribution. The
movement of the 1980s saw most activity in Wisconsin, the
Great Plains states, and the Pacific Northwest, with
incidents occurring in a number of other states, particularly
in the West and Midwest. A decade later, there are sovereign
citizen groups in every single state in the country.
Moreover, these groups have exhibited a willingness to
establish relations with other branches of the
"patriot" movement. In several states, common law
court leaders have expressed a desire that militia groups in
their states act as marshals of the common law courts. So
far, most militia units have been wary of such alliances,
because of the danger it would place them in, but it is not
uncommon for individuals to belong both to militias and to
common law courts, particularly in rural areas. Common law
courts also have developed considerable connections with
white supremacists, more so than has the militia movement.
The sect Christian Identity maintains a very strong foothold
within the movement, as evidenced by the Montana Freemen. In
a few states, the common law ideology has taken a bizarre
twist, resulting in secessionist movements. Not surprisingly,
such movements have been limited to only a few states such as
Hawaii, Alaska, and Texas. Texas has spawned the most
notorious of such groups, the so-called "Republic of
Texas" (ROT), which argues that Texas was never lawfully
annexed and is therefore an independent nation. ROT grew
quickly and spread across the state. It has co-opted most of
the other common law groups and part of the militia movement
in Texas. Its leaders act in open defiance of local
authorities, who have obtained an arrest warrant (not yet
served) for the ROTs most visible leader, entrenched
with his followers at a remote West Texas site.
The Future of Common Law Courts?
Currently, the common law court movement is both
widespread and pernicious. It shows no sign of decreasing in
strength any time soon. In fact, new groups are formed
regularly. High-profile operations such as the long-delayed
arrest of the Montana Freemen have shut down the activities
of specific groups but have not stemmed the activities of the
overall movement. Some states, such as Missouri and Illinois,
have conducted widespread arrests of common law court members
on various charges, but these actions are too recent for us
to see whether they have adversely affected statewide or
regional common law activity.
Many states possess laws that are applicable to common law
activity. These statutes range from simulating the legal
process to impersonating a public official to criminal
syndicalism. Enterprising public servants have begun to
search the statute books for applicable laws, just as Posse
adherents have searched law books for their own purposes.
Some of these efforts are bearing fruit. Many states have
passed new laws, or are in the process or doing so, that are
specifically designed to combat the problem of retaliatory
common law liens. Such legislation will provide additional
tools for prosecutors and other public officials.
However, common law activists have proven quite
resourceful; merely passing statues after the fact may not be
enough. They discovered that bogus checks and bogus liens are
effective and disruptive anti-government tactics. Presumably
they will discover additional, equally disruptive tactics in
the future. Moreover, the more dedicated of the common law
believers have shown themselves willing to lose their
property and to risk imprisonment as a necessary price for
their beliefs. If the legally constituted authorities become
more successful in dealing with common law tactics, it is
possible that thwarted activists may resort to increased
violence in an effort to meet their followers
expectations as well as to strike blows. Nevertheless, it is
important that the government--federal, state and
local--enforce the laws and put pressure on the bogus courts,
for a key strategy must be to separate the committed leaders
and members of the movement from the large body of the
primarily curious, and other less committed followers and
supporters, who might thereby be deterred from engaging in
illegal activity. Enforcement resources must be concentrated
on the comparatively small number of high-risk members who
pose the greatest threats.
The most important need of all, however, is for increased
awareness. Not only must public officials in areas with heavy
common law activity be aware of the potential for violent
confrontation or even domestic terrorism, but they must
understand how to deal with the day to day activities of such
extremists. County clerks and recorders must deal with their
filings. Police officers must pull them over for traffic
violations. Judges must face their courtroom antics, while
prosecutors must learn how effectively to build cases against
them. All these people and more besides must deal with the
possibility of bogus liens or other retaliatory measures.
Moreover, public officials in areas that have not yet seen an
influx of common law activity must be aware of the warning
signs of common law activity. Knowledge is a weapon that can
be brought to bear to combat the rhetoric of the Posse
adherents, decrease their membership, guard against their
threats or acts, and punish them for any illegal activities
they might commit.
Notes
1 Texas Lawyer, June 14, 1993.
2 Ilse Bailey, "Meanwhile, Back at the Ranch," Texas
Prosecutor 25 (May/June 1995): 1, 8-14.
3 No adequate history of the Posse exists. Summaries can
be found in David H. Bennett, The Party of Fear: The
American Far Right from Nativism to the Militia Movement
(New York, 1995), 350-355; James Ridgway, Blood in the
Face: The Ku Klux Klan, Aryan Nations, Nazi Skinheads, and
the Rise of a New White Culture (New York, 1990), 109-44;
James Corcoran, Bitter Harvest: The Birth of Paramilitary
Terrorism in the Heartland (New York, 1995), 5-42. A
rather bad book, Cheri Seymour's Committee of the States:
Inside the Radical Right (Mariposa, CA, 1991), includes
information about William Potter Gale's involvement available
nowhere else.
4 Posse Handbook, (n.p., n.d) 1.
5 Ibid.
6 Ibid.
7 St. Louis Post-Dispatch, November 3, 1996.
8 New York Times, February 17, 1981; Tim Bryant,
"Wayne Cryts: American Hero?", September 19, 1982,
UPI.
9 One of the more easily accessible versions of this
common law doctrine is Howard Fisher and Dale Pond, "Our
American Common Law," Delta Spectrum Research, 2100 W.
Drake Rd., Suite 402, Fort Collins, Colorado, 80526. The
summary of common law thought in this essay is largely,
though not completely, drawn from this pamphlet. Other
versions differ only in details.
10 Quotes from "U.S.A. The Republic, Is The House
That No One Lives In." World Wide Web document,
http://www.ptialaska.net/~swampy/amend_14/usa.asp.
11 Fisher and Pond, op cit.
12 Jerry Simmons, "Demand for Common Law Due
Process." Document in authors possession.
13 March 29, 1996, Hearing Transcripts.
14 George Gordon materials from articles in The New
York Times, The Cleveland Plain Dealer, and
various UPI wire reports.
15 Frank Ryan, "Capitol Commentary," May 26,
1981, UPI; January 21, 1983, UPI.
16 December 29, 1980, UPI.
17 Description of Pro Se meeting comes from The Tampa
Tribune, April 28, 1996.
18 St. Petersburg Times, August 10, 1994.
19 (Fort Lauderdale) Sun-Sentinel, October 5, 1996.
20 The description of this incident was based largely on
common law court documents sent to me by Glenn Sawyer.
21 The Washington Times, August 12, 1996.
22 San Francisco Chronicle, July 16, 1995.