Okay, let’s talk for a brief minute about Motions to Dismiss that challenge both subject matter and in personam (personal) jurisdiction and WHY you want to file BOTH in separate individual pleadings. This was a discussion I had with someone earlier today about this subject, and it’s important to note the distinctions being made in the arguments within each pleading.
Q: Can or should a motion to dismiss for lack of in personam jurisdiction read the same (or roughly the same) as a motion to dismiss for a lack of subject matter jurisdiction?
A: They will have similarities to the facts of the arguments, but different focuses.
Q: For example, would in personam focus more on the officer’s authority to stop you in the first place removing the authority from the court to hear the case?
A: It works in BOTH.
A Motion to Dismiss for Lack of Subject Matter Jurisdiction Would go Something like this:
It is an uncontested fact that the arresting officer, Officer Ima Dickhead (“Officer Dickhead“), conducted no investigation into discovering any facts or evidence that would prove Respondent was engaged in “transportation” at any time prior to or during the alleged regulatory offense.
It is an uncontested fact that Officer Dickhead‘s entire basis for making such an allegation is based entirely upon his/her own unsubstantiated personal presumptions of law rather than actual facts or evidence.
It is an uncontested fact that Officer Dickhead has no lawful authority to seize and arrest Respondent without warrant for an alleged “transportation” offense if the officer lacked any articulable facts and evidence supporting probable cause to believe that Respondent was actively engaged in “transportation.”
It is an uncontested fact that, absent any facts and evidence that Respondent was engaging in “transportation,” Officer Dickhead lacked not only articulable probable cause to make a warrantless seizure and arrest of Respondent, but also any and all subject matter jurisdiction over Respondent relating to enforcement of regulatory statutes relevant to same.
It is an uncontested fact that, if Officer Dickhead never believed that Respondent was actively engaged in “transportation” at the time of the alleged offense, thus Officer Dickhead never intended to perform any investigation that would result in the discovery of any admissible facts and evidence that would prove Respondent was so engaged, then it cannot by rightfully said that Officer Dickhead was acting on any specific articulable facts or evidence supporting probable cause, but was acting instead upon an entirely unlawful and unsubstantiated legal presumption that the existing facts and evidence did not support.
It is an uncontested fact that, given the current state of tensions in this nation and this state relating to law enforcement officers brutally assaulting, injuring, and murdering individuals that are doing nothing more than asserting and exercising their fundamental and constitutionally protected rights to not be subjected to false arrests, abuses of police power, and injurious physical assaults and death at the hands of out-of-control law enforcement personnel, Officer Dickhead‘s demonstrably faulty and unsubstantiated legal presumption and callous disregard of the facts and the law created an unacceptable level of danger to the life, person, rights and property of Respondent as well as that of the general public to a degree that is shocking to the conscience.
As Officer Dickhead lacked any actual articulable facts and evidence that Respondent was actually engaged in “transportation” at the time of the warrantless seizure and arrest of Respondent, and never made any attempt whatsoever to investigate into this necessary and mandatory element of subject matter jurisdiction relating to the alleged offense, there was no legal basis creating a foundation for articulable probable cause that would serve to support Officer Dickhead‘s warrantless seizure and arrest. Therefore, the warrantless seizure and arrest of Respondent by Officer Dickhead was completely unlawful and illegal and was not based upon any probable cause supporting subject matter jurisdiction.
A Motion to Dismiss for Lack of In Personam Jurisdiction Would go Something like this:
It is an uncontested fact that the arresting officer, Officer Ima Dickhead (“Officer Dickhead”), conducted no investigation into discovering any facts or evidence that would prove Respondent was engaged in “transportation” at any time prior to or during the alleged regulatory offense.
It is an uncontested fact that Officer Dickhead‘s entire basis for making such an allegation is based entirely upon his/her own unsubstantiated personal presumptions of law rather than actual facts or evidence.
It is an uncontested fact that Officer Dickhead has no lawful authority to seize and arrest Respondent without warrant for an alleged “transportation” offense if the officer lacked any articulable facts and evidence supporting probable cause to believe that Respondent was actively engaged in “transportation.”
It is an uncontested fact that, absent any facts and evidence that Respondent was engaging in “transportation,” Officer Dickhead lacked not only articulable probable cause to make a warrantless seizure and arrest of Respondent, but also any and all in personam jurisdiction over Respondent relating to enforcement of regulatory statutes relevant to same.
It is an uncontested fact that, if Officer Dickhead never believed that Respondent was actively engaged in “transportation” at the time of the alleged offense, thus Officer Dickhead never intended to perform any investigation that would result in the discovery of any admissible facts and evidence that would prove Respondent was so engaged, then it cannot by rightfully said that Officer Dickhead was acting on any specific articulable facts or evidence supporting probable cause, but was acting instead upon an entirely unlawful and unsubstantiated legal presumption that the existing facts and evidence did not support.
It is an uncontested fact that, given the current state of tensions in this nation and this state relating to law enforcement officers brutally assaulting, injuring, and murdering individuals that are doing nothing more than asserting and exercising their fundamental and constitutionally protected rights to not be subjected to false arrests, abuses of police power, and injurious physical assaults and death at the hands of out-of-control law enforcement personnel, Officer Dickhead‘s demonstrably faulty and unsubstantiated legal presumption and callous disregard of the facts and the law created an unacceptable level of danger to the life, person, rights and property of Respondent as well as that of the general public to a degree that is shocking to the conscience.
As Officer Dickhead lacked any actual articulable facts and evidence that Respondent was actually engaged in “transportation” at the time of the warrantless seizure and arrest of Respondent, and never made any attempt whatsoever to investigate into this necessary and mandatory element of in personam jurisdiction relating to the alleged offense, there was no legal basis creating a foundation for articulable probable cause that would serve to support Officer Dickhead‘s warrantless seizure and arrest. Therefore, the warrantless seizure and arrest of Respondent by Officer Dickhead was completely unlawful and illegal and was not based upon any probable cause supporting in personam jurisdiction.
What you have to understand is, that although the facts that lead up to both challenges are essentially the same, the focus of the challenge can and would be different between a challenge to subject matter versus in personam jurisdiction. These same points of argument would serve just as well in a “Motion to Suppress” considering that, since the facts show that probable cause never existed, then the officer conducted an illegal search and seizure of the person, the conveyance, and the personal information relating to both.
Furthermore, in order for any of this information to remain admissible, the state must first PROVE that the warrantless arrest was valid by proving that probable cause DID exist, AND that the officer properly complied with Art. 38.22, Code of Criminal Procedure. The problem for the state, however, is that the officer NEVER attempted to obtain any such evidence AT THE TIME OF THE ALLEGED OFFENSE. And failing to do so would make ANYTHING they try to use thereafter, like a driving record or other official record relating to licensing, registration, inspection, financial responsibility, etc., etc., INADMISSIBLE because it is NOT relevant to the original stop and arrest and certainly not a direct result of the officer’s actions at the original stop.
Tao of Law 