From braintree!news.sprintlink.net!news.texas.net!news.kei.com!news.ece.uc.edu!babbage.ece.uc.edu!news.gryffin.com!chi-news.cic.net!simtel!zombie.ncsc.mil!cs.umd.edu!haven.umd.edu!gamera.cbl.cees.edu!snipe Wed Oct 11 09:36:55 1995
From: email@example.com (Mark W. Heaney)
Subject: Excerpts from 9/15 Lerma hearing 2/2
Date: 11 Oct 1995 01:46:24 GMT
Organization: University of Maryland, Chesapeake Biological Lab.
X-Newsreader: TIN [version 1.2 PL2]
Here are Judge Brinkema's order's from the Sept. 15th hearings:
24 THE COURT: All right. I am going to rule. To
25 take the words out of Mr. Cooley's mouth, the same thing
1 that happened in Colorado, I am going to do the same thing
3 I have listened carefully, and I am very concerned
4 about how the seizure was conduct. Coming out of the
5 practice of criminal law myself, I am vegy much aware about
6 the concept of the general warrant and how the Fourth
7 Amendment has always been significantly opposed to that kind
8 of warrant use.
9 When a party does come to the Court and ask the
10 Court for the extraordinary remedy of giving such a --
11 giving a right to enter a person's residence and seize
12 materials and when that is done in an ex parte fashion, it's
13 got to be done in complete good faith, and it's got to be
15 I thought I had sufficient safeguards in place so
16 that this seizure could be properly authorized within the
17 scope of Fourth-Amendment sensitivity. I am concerned that
18 it was not conducted in certainly the spirit of what had
19 been intended, and it certainly was not the Court's
20 intention to turn that seizure warrant into a wholesale
21 license to literally go through Mr. Lermals residence and
22 possessions willy nilly and with a fine-tooth comb. This is
23 a case that has gotten somewhat out of control, and I need
24 to put it into control.
25 I am concerned about the plaintiff having
1 sufficiently clean hands to actually come into a court of
2 equity. And, as I said, I have already found in balancing
3 the four factors in the context of the Washington Post that
4 I felt that there were -- the plaintiff could not make out
5 its case sufficiently at this state of the proceedings to
6 justify injunctive relief.
7 Although Mr. Lerma's situation is different from
8 the Post's in that the copying may be more of a problem, I
9 don't feel at this point there is any reason to continue any
10 kind of injunctive authority over him in part because I am
11 not at all convinced the plaintiff has proceeded in good
12 faith in this matter.
13 And therefore, I am going to go ahead, and I am
14 going to deny the plaintiff's request for a preliminary
15 injunction as to Mr. Lerma, and Digital has not said
16 anything in this case but you all have sort of been the
17 silent partner, but clearly, any liability you have got is
18- directly -- you are on the coattails of Mr. Lerma.
19 Both the defendants would be absolved of any
20 obligation under previous restraining orders of this Court.
21 I am going to direct that all materials that were seized --
22 I am going to vacate the seizure warrant and direct that all
23 materials seized, including hard drives, floppy disks, et
24 cetera, be returned forthwith to Mr. Lerma.
25 Mr. Lerma will be under the order of the Court
I that those materials are to only be, they are limited to
2 fair use, and, furthermore, since Mr. Lerma has counsel, I
3 feel that there are additional safeguards in terms of the
4 rights of the plaintiff, because counsel, as officers of the
5 Court, are to make sure, as have counsel for the Post, by
6 the way, very responsibly, handled these materials sensitive
7 to the issues that have yet to be litigated in this
9 I am going to prepare a memorandum opinion, but I
10 think you all need to know the ruling of the Court so I have
11 given it to you in summary. I will elucidate some of these
12 reasons in writing.
13 In terms of applying the exclusionary rule in a
14 civil context, it's a very interesting concept. Versions of
15 that happen in terms of the Court sanctioning parties in a
16 civil suit for discovery abuses, of course, and that sort of
18 The Fourth Amendment itself, the pure exclusionary
19 rule arises out of concepts of limitations on the power of
20 the Government, and so to that extent, this would be an
21 inappropriate party against which to apply that doctrine.
22 However, there is this interesting issue about a
23 private party using the power of the Government, i.e., an
24 order of this Court, to intrude upon the Fourth-Amendment
25 rights of Mr. Lerma.
1 I am going to think about that issue. I am not at
2 all sure I am going to grant that, but it's certainly one
3 worth thinking about.
4 And that is the ruling of the Court. All right.
5 MR. COOLEY: Your Honor, I respectfully move the
6 Court to stay the effect of that order to give us an
7 opportunity to seek a stay, or if the Court stays it, we
8 won't have to, because we are going to appeal to the Court
9 of Appeals for the Fourth Circuit; and I would ask that the
10 effect of the Court's order be stayed pending appeal.
0 R D E R For the reasons stated in open Court, to be further developed
in a written opinion to be issued,Plaintiff Religious Technology Center
(IIRTCII) I s Motion forReconsideration and Rehearing andMotion for a
Preliminary Injunction Against Defendant Lermaare DENIED.Defendant
Lermals Motion to Vacate the Writ of Seizure andorder for Impoundment
is GRANTED and it is herebyORDERED that RTC shall immediately return
and restore toDefendant Lerma all seized materials in their exact original
condition. This includes both Lerma's hard drives and all floppydiscs; and
it is furtherORDERED that Defendant Lerma shall maintain the status quo as
to possession of all the allegedly copyrighted materials at issuein this
case and is restricted to employing them only in a fair use capacity.
Lerma and his counsel are specifically prohibited from making any
additional copies of the materials or transferring themin any manner or
publicizing them other than in the context of fair use.This action moots
the issue of increased bond relating to the seizure, so Defendant Lerma's
Motion to Increase Bond is DENIED. Plaintiff RTC's Motions for Provisional
Stays Pending Appealto the Fourth Circuit are DENIED.The Clerk is directed
to forward copies of this order to counsel of record.Entered this 15th
day of September, 1995.
$cientology declares War on the Internet "Some call it Allah,
and your freedom of speech! some call it God,
More info: alt.religion.scientology some call it Buddha
or ask me: firstname.lastname@example.org I call it Love" -C.Blonde
-----BEGIN PGP PUBLIC KEY BLOCK-----
-----END PGP PUBLIC KEY BLOCK-----