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Category Archives: Fifth Amendment
Mitigating the Risk of Loss of a Delinquent Collateral Asset in the Era of Autonomous Zones – JD Supra
Posted: January 19, 2021 at 9:28 am
Following the death of George Floyd during his arrest in Minneapolis, Minnesota, America experienced months of civil unrest throughout the country. It was during these protests that some began to assert that civil society in America was beyond repair and advocated for breaking the shackles of an allegedly oppressive and racially insensitive government. It was from this belief that the idea of establishing autonomous zones free from civil authority and independent from the United States was born. For the first time since 1861, calls for secession were acted upon, and protestors began to commandeer and blockade neighborhoods in major U.S. cities, thereby creating bubbles of autonomous rule within the United States. Protestors denied emergency responders and civil authorities entry to these autonomous zones, and prevented property owners from quietly enjoying their homes and businesses. For days, or even weeks, local and state governments ceded civil authority to the mob before being able to regain a semblance of control over these areas. The Red House Autonomous Zone in Portland, Oregon, demonstrates the negative impact autonomous zones can have on protecting a lienholders collateral assets. The property in question, called the Red House on Mississippi by activists, was owned by the Kinneys, an African American/Native American family. Following a default on their mortgage, the noteholder foreclosed on the property, and it was sold to a developer as a non-judicial foreclosure in 2018. The Multnomah County Circuit Court issued a writ of execution for eviction following a non-judicial foreclosure, and the sheriffs office served the Kinney family in September 2020. Thereafter, activists in support of the Kinney family occupied the house and denied the new owner access to the property. When the sheriff's department and Portland Police Department attempted to evict the activists in December 2020, the activists violently repelled law enforcement and established a three square block autonomous zone around the property. The creation of the autonomous zone impacted the entire neighborhood and not just the Kinney property. The activists defending the Kinney home were not local residents, but instead activists squatting on the Kinney property. The result was that the Kinneys neighbors, who did not ask to be part of the autonomous zone, were forced to become unwilling participants in the protest. Even though the City of Portland was able to negotiate an end to the autonomous zone, the activists still occupy the property and the city has taken no further action to evict them. Thus, the new owner, who has a court-issued eviction order, is unable to gain access to its property due to the governments refusal to utilize its civil authority to enforce the eviction order.Even though local governments were eventually able to regain relative control of these autonomous zones, a lasting impact remains. Emboldened by the lack of repercussions for defying civil authority, the establishment of autonomous zones is now seen as a viable protest tool. Moreover, in the case of the Red House on Mississippi, the local government is now unwilling to enforce court orders to forcibly evict unlawful squatters out of fear of creating unrest, thereby denying the holder of legal title to the property and its rights to quietly enjoy the property. In light of this, lienholders need to be aware of their options to mitigate the risk of losing a collateral asset if it becomes part of an autonomous zone. This article discusses considerations lenders should take into account if they are contemplating targeted lending policies to mitigate the risk that their collateral assets will be encompassed within an autonomous zone. Additionally, we discuss the recourse lienholders have if their rights are damaged due to the existence of an autonomous zone that results in the loss of a delinquent collateral asset.Underwriting Risk Mitigation PoliciesSome areas of the country are more susceptible to the establishment of autonomous zones than others. Lenders may be considering employing risk mitigating policies directed at areas deemed more susceptible to autonomous zone control in order to prevent the loss of their collateral assets. Possible risk mitigation policies may include:
While a lender may want to adopt these risk mitigating policies, careful consideration of federal and state law must be made before any such policy is implemented.While state consumer credit protection laws compliment the federal Consumer Credit Protection Act, the state law may be more stringent than the federal statute. Therefore, the lender is required to not only conduct an examination of the proposed policy against the federal Consumer Credit Protection Act, but also against the state consumer credit protection laws in each state in which the lender intends to implement the policy. Failure to examine the proposed risk mitigation policy against applicable consumer credit protection laws may result in costly litigation in the future. If the risk mitigation policy is permissible pursuant to federal and applicable state consumer credit protection statutes, then the lender must also ensure that the policy is not discriminatory against a protected class. Under the Fair Housing Act (FHA), implemented through 24 C.F.R. 100, lenders cannot disparately treat individuals based on their race, color, religion, sex, handicap, familial status, or national origin. 24 C.F.R. 100.5(a). Meanwhile, under the Equal Credit Opportunity Act (ECOA), implemented through 12 C.F.R. 202, lenders cannot disparately treat individuals due to race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract); to the fact that all or part of the applicants income derives from a public assistance program; or to the fact that the applicant has in good faith exercised any right under the Consumer Credit Protection Act. 12C.F.R. 202.1(b). While the above referenced risk mitigation policies are neutral in nature insofar as they are directed at localities where state and local governments have historically ceded civil authority to protestors and are not directed at a protected class, lenders must be careful that these policies do not create a disparate impact on members of a protected class. If a lending policy has a disparate impact on a protected class, then it is impermissible, and may result in a discrimination claim, or worse a class action lawsuit, against the lender. Courts have held that [t]o establish a disparate impact claim, a plaintiff must show an outwardly neutral policy or practice that has a significant adverse or disproportionate impact on members of a protected group. Taylor v. Accredited Home Lenders, Inc., 580 F. Supp. 2d 1062, 1068 (S.D. Cal. 2008) (analyzing disparate impact under both the FHA and ECOA). Additionally, [t]o establish a prima facie case under a[n ECOA] disparate impact theory, a plaintiff must identify a specific policy or practice which the defendant has used to discriminate and must also demonstrate with statistical evidence that the practice or policy has an adverse effect on the protected group. Powell v. Am. Gen. Fin., Inc., 310 F. Supp. 2d 481, 487 (N.D.N.Y. 2004). Moreover, an analysis of a policys disparate impact is critical because it is anticipated that the incoming Biden administration will increase disparate impact enforcement. Therefore, lenders considering instituting targeted policies to mitigate the risk of the loss of collateral assets as the result of them potentially becoming part of an autonomous zone must conduct a careful disparate impact analysis before implementing the policies.Below are our recommendations to lenders who want to be proactive to protect their collateral assets from loss as a result of becoming part of an autonomous zone:
Thus, lenders should proceed with caution when considering implementing policies targeting areas where collateral assets may be at heightened risk of being annexed into an autonomous zone.Post-Autonomous Zone Recourse for Delinquent Collateral AssetsIf a lienholder finds that its delinquent collateral asset is now part of an autonomous zone, or if its collateral asset becomes delinquent as the result of its inclusion in an autonomous zone, all is not lost. The lienholder has recourse against the governmental entities that permitted the establishment of the autonomous zone, including a Fifth Amendment takings claim and/or an inverse condemnation claim under state law. Which claims are available to the lienholder is dependent on the status of the foreclosure proceeding, and the jurisdiction where the claims are filed.Government inaction or encouragement of autonomous zones frustrates the rights of those who have interests in property that becomes ensnared in the autonomous zone. This frustration of rights can give rise to a viable takings claim against the governmental entity that is impinging on the property owner's rights. The Takings Clause of the Fifth Amendment of the United States Constitution provides, nor shall private property be taken for public use, without just compensation. Under the Fifth Amendment, property owners may bring a takings claim when government action frustrates their use, enjoyment, and rights associated with the property, without providing just compensation. If the government is found to have engaged in an improper governmental taking by allowing the establishment of an autonomous zone, then the individuals and entities whose property rights were infringed upon are entitled to just compensation.Recent legal precedent indicates that a lienholder can bring a Fifth Amendment takings claim at any point during the foreclosure process if the government infringes on its interest in a delinquent collateral asset by allowing the formation of an autonomous zone. In HMC Assets, LLC v. City of Deltona, 2018 WL 647452 (M.D. Fla. Jan. 31, 2018), the U.S. District Court for the Middle District of Florida held that a mortgagee could proceed with its Fifth Amendment takings claim and its procedural due process claim. In HMC Assets, the mortgagee foreclosed on a parcel of real estate, and before a final judgment of foreclosure was obtained, the city demolished the building on the property without notice of the demolition or ordinance violations and fines leading to the demolition. As a result of the destruction of the structure by the city, the court held that the mortgagee was entitled to assert a Fifth Amendment takings claim against the city due to the resulting diminution in the value of the collateral property. The court reasoned that the United States Supreme Court has held that taking of a mortgagees rights without compensation can violate the Takings Clause. In addition, [u]nder federal law, a mortgagee possesses a legally protected property interest in the premises for purposes of the Fifth Amendment. Thus, HMC Assets suggests that mortgagees likely have standing to bring a Fifth Amendment takings claim and procedural due process claims against the government if the establishment of an autonomous zone infringes on a lienholder's interest in a delinquent collateral asset.There is precedent now available regarding the viability of a Fifth Amendment takings claim against the government related to the establishment of an autonomous zone. In Hunters Capital LLC, et al. v. City of Seattle, No. 2:20-cv-00983 (W.D. Wash. June 24, 2020), the plaintiffs, including residents, tenants, property owners, and small businesses in Seattles Capitol Hill neighborhood that have been harmed by CHOP, brought Fifth Amendment takings and Fourteenth Amendment due process claims under 42 U.S.C. 1983 against the City of Seattle related to the city's alleged inaction and encouragement of the Capitol Hill Autonomous Zone. The city attempted to have these claims dismissed on the basis that (a) the partial and temporary loss of property did not constitute a taking; (b) the plaintiffs failed to show direct harm caused by the city; (c) the due process clause did not require the city to exercise discretion to prevent private actors from harming other people; and (d) the city did not directly place plaintiffs in danger. However, the court sided with the plaintiffs and denied the citys motion to dismiss. The court held that Plaintiffs plausibly assert that the Citys endorsement of, and the provision of material support to, CHOP set in motion a series of acts by certain CHOP participants, who the City knew or reasonably should have known would deprive Plaintiffs of protected property interests . . . These allegations support the claim that the Citys conduct was causally related to [the] private misconduct and it was sufficiently direct and substantial to require compensation under the Fifth Amendment. Hunters Capital is still pending and the final resolution is unknown. However, the holding Hunters Capital, together with the holding in HMC Assets, suggest that lienholders have a viable Fifth Amendment takings claim against the government if it can be shown that the lienholder was deprived of a protected property interest as the result of the governments endorsement and material support of the establishment of an autonomous zone.In addition to a Fifth Amendment takings claim, a lienholder also can bring an inverse condemnation claim under state law if the government infringes on the lienholders property rights once it has legal possession of the delinquent property. Like a Fifth Amendment takings claim, those with sufficient property interests can file a state law inverse condemnation claim when the government takes their property without providing just compensation. Pursuant to the holding in HMC Assets, wherein the court held that under Florida law, a mortgagee such as HMC lacks standing to bring an inverse condemnation claim, lienholders likely will lack standing to bring a state law inverse condemnation claim before receiving a foreclosure order. Jurisdictions may vary on this issue depending on each jurisdictions interpretation of the scope of interests that grant standing to bring an inverse condemnation claim. However, once that order is received, and the lienholder has legal title to the property, then it can certainly bring this claim. Moreover, in relation to the Red House on Mississippi, the owner of the property is entitled to bring a Fifth Amendment takings claim and/or an inverse condemnation claim against the City of Portland.An aggrieved lienholder who has its interest in a collateral asset infringed upon by the government due to the establishment of an autonomous zone can bring its Fifth Amendment takings and due process claims directly in federal court. This would allow the lienholder to circumvent local state courts that may be less sympathetic to the lienholder's claims. In 2019, the Supreme Court of the United States held in Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 204 L. Ed. 2d 558 (2019), that a property owner may immediately bring a Fifth Amendment takings claim under 42 U.S.C. 1983 to federal court once the property has been taken without just compensation. Knick overruled earlier precedent that required property owners to proceed through state court first. Specifically, [w]e now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. Additionally, [t]he availability of any particular compensation remedy, such as an inverse condemnation claim under state law, cannot infringe or restrict the property owners federal constitutional claim. Thus, Knick allows circumvention of the home cooking of state courts, which is beneficial for lienholders. Federal supplemental jurisdiction allows the lienholder to also bring any viable state court claims, including an inverse condemnation claim, in federal court together with the lienholder's federal constitutional claims. This allows the lienholder to avoid the possible biases held by local state court judges, and provides for a hopefully more objective evaluation of the lienholder's claims. ConclusionThe birth of autonomous zones has led to uncertainty regarding the protection of a lienholder's collateral assets, and raises new considerations that lienholders never had to consider in the past. Lienholders wishing to implement targeted risk mitigation policies for areas at heightened risk of autonomous zone control should proceed with caution prior to implementing such policies and should follow the steps outline above. The good news is that recent case law on this new issue suggests that a lienholder likely has a viable takings claim against the government, which can go directly to federal court, if municipal inaction and encouragement of autonomous zones frustrates the lienholders interests in a delinquent collateral asset.
Mitigating the Risk of Loss of a Delinquent Collateral Asset in the Era of Autonomous Zones - JD Supra
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OPINION | Trump might invoke the 25th Amendment without resigning – Marianas Variety
Posted: at 9:28 am
REGARDING my Jan. 11, 2021 editorial titled Pence could have rejected the contested electoral votes, tarklejr audaciously quipped, Mr. Pangelinan, once again your ignorance in all matters govern-mental (both Federal and local) is glaringly blatant for all to see. Long ago I suggested that he should be hired as a dishwasher at the Imperial Pacific International casino and resort because that is the only job that at most he is qualified for, but then again maybe he is not. Maybe he should be hired as a trash collector, because everything he says is all trash and he should pick up every trash he says.
In my last article to this paper, I said that Vice President of the United States Mike Pence, as the President of the Senate, presiding over the January 6, 2021 joint session of Congress under the Twelfth Amendment to the U.S Constitution, elected not, which was perfectly within his discretion as the presiding officer, to exercise the powers he had, which I said every parliamentarian knows (seems tarklejr does not know.
He said Mike Pence was prevented from doing that because: Federal law and the Constitution PROHIBITED Pence from discarding, changing, amending or taking ANY action over Electoral College ballots (votes) other than simply COUNTING them. In reading the Twelfth Amendment there is NOTHING there that prohibits the President of the Senate from doing otherwise from what the dingbat said. In fact I said, that even a dumb parliamentarian knows that the chair or the presiding officer calls the shots if anything is called into question, over something that is not written anywhere whether it be in the federal Constitution, law or procedural rule. And, there is even no federal law that specifically prohibits Pence from exercising the powers I above mentioned 3 U.S.C. 15 basically paraphrased the relevant Twelfth Amendment provision. And, actually Title 3, Section 15 of the United States Code is the federal law that Pence was acting on, which in his discretion he was always free to choose what to act on.
Then tarklejr went on to say that U.S. House of Representatives Speaker Nancy Pelosi, and not the Secretary of State Mike Pompeo, comes next in line to act as the acting president. What Nancy Pelosi was pushing was that Vice President Mike Pence should invoke the Twenty-Fifth Amendment to the U.S. Constitution, not the Twentieth Amendment. The Twentieth Amendment, however, says something differently that Pelosi and Senate majority leader Chuck Schumer would not want to do, resign from their post, and even from their respective legislative house to become acting president of the United States the amendment authorizes Congress under Section 3 and 4 to enact legislation dealing with succession to the presidency. In other words, under 3 U.S.C. 19, implementing the Twentieth Amendment, if there should be a vacancy in the presidency the House Speaker succeeds, but must resign the Speakership and from the House of Representatives likewise with the Senate president pro tempore (Senate Majority Leader). It is extremely unlikely that both relinquish their powerful position in Congress, so next comes the Secretary of State, Mike Pompeo, under 3 U.S.C. 19(d)(1) and after him the Treasury Secretary, etc. this is laid in the order that the offices were first established by Congress when it was organizing the federal government early on in the eighteenth century.
But in the final analysis, however, this is all academic because the Twentieth Amendment comes into play only when there is a vacancy in the offices of the president and the vice president, which is not the case here at this time. Trump, however, might invoke the Twenty-Fifth Amendment, without resigning, telling both houses of Congress that he is incapacitated to allow Pence (Trump can do this) to act as president and then Pence in turn, as acting president, pardons Trump from any and all wrongdoing which would really rattle the Democrats in the House and Senate of the U.S. Congress that would eventually dispense for the need to impeach Donald J. Trump! Trump doing this, without resigning, removes himself from powers of the presidency while remaining the president of the United States until his term ends on January 20, 2021. Nancy Pelosi and Chuck Schumer are not too smart to outwit Trumps supporters. When this happens, Trump telling Congress that he is incapacitated and Pence taking over under the Twenty-Fifth Amendment would drive CRAZY Nancy Pelosi, Chuck Schumer and the entire Democrats in both houses of Congress Washington, D.C. loony asylum will be filled by them.
I challenge traklejr anytime on any field or subject, even in his field of so-called expertise. Call me tarklejr if you want to come up to the challenge, through Marianas Varietythey have my number. Or, write a column or letter or opinion to the editor and duke it out here. I am a local and I know the local laws and history and U.S. laws and history. Ask attorney Janet H. King of the King Law firm how ignorant I am on federal and local laws.
The writer is a resident of Kagman, Saipan.
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OPINION | Trump might invoke the 25th Amendment without resigning - Marianas Variety
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Will Joe Biden Issue a Pardon to Donald Trump? – The National Interest
In his inaugural address, President-elect Joe Biden could announce that he is pardoning Donald Trump. It would raise a furor on the Left. But it would also allow Biden to declare that he is following through on his pledge to unite America.
Former FBI Director James Comey, who was fired by Trump, is supporting the idea. In an interview on BBC Newsnight, Comey stated, he should at least consider it. Donald Trump, hes not a genius, but he might figure out that if he accepts a pardon, thats anadmission of guilt, the United States Supreme Court has said, so I dont know that he would accept a pardon. Comey added that it would serve as part of healing the country and getting us to a place where we can focus on things that are going to matter over the next four years.
Biden would be able to handle the blowback that he would get from an enraged Democratic base. Given the gravity of the crises that he facesa slowing economy, a spreading pandemic, and a mounting loss of American international credibilityBiden enters office in a commanding position within his own party. A pardon, as Gerald Ford stressed, does not imply innocence. It implies acceptance of guilt.
Its also the case that Trump would continue to face a welter of potential criminal charges at the state level that a federal pardon would not cover (though a federal pardon would cover Washington, DC). The Southern District of New York appears to be avidly pursuing him for perpetrating financial crimes, including tax fraud and money-laundering. Now that William P. Barr has resigned, federal prosecutors are moving quickly to arraign Trump. Small wonder that Trump himself is apparently consumed with worries about what looms ahead once he exits office.
Still, Trump himself might seek to act preemptively by pardoning himself and his children. A self-pardon, however, would be a dicey move indeed as it could simply ratify his guilt and be overturned by the Supreme Court. The notion that a president can pardon himselfand essentially declare himself above the lawhas never been tested. Its not a test that Trump would want to flunk. Yale legal scholar William N. Eskridge notes, The original meaning of granting a pardon assumes someone granting the pardon who is distinct from the person receiving it. So does the original purpose of a pardon, namely, forgiveness bestowed by an authority on a rule-breaker. Though a priest may pardon sinners, he may not absolve himself. A former Justice Department official says, It almost certainly wouldnt work. It would make matters worse. It would be a red flag for the Justice Department.
A further wrinkle is that the Constitution impedes the ability of a president to issue pardons if he has been impeached. Article II, Section, Clause 1 says that the president can issue pardons except in Cases of Impeachment. But in his capacity as president, Trump, who has never been overly concerned about constitutional niceties, might seek to ignore this provision. It would not impinge upon his ability to pardon his children or advisers such as Rudy Giuliani. But pardoning his children would mean that they would forfeit their Fifth Amendment protections before a Grand Jury. They could be compelled to testify. By contrast, Giuliani would presumably have protections under the attorney-client privilege.
The most likely course is that Biden will depute any investigation of Trumps conduct on January 6 to his Attorney General Merrick Garland. Garland would probably conduct a lengthy investigation of Trump before deciding that a federal prosecution of Trump would curtail the freedom of speech of future presidents. But the safest path for Trump would be if Biden pardoned him. Trump would receive direct benefits from a pardon, while Biden could adopt a Churchillian stance. In victory, magnanimity; and in peace, good will.
Jacob Heilbrunn is editor of The National Interest.
Will Joe Biden Issue a Pardon to Donald Trump? - The National Interest
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Questions on a Trump impeachment and invoking the Twenty-fifth Amendment – OUPblog
The past few weeks have been a tumultuous time in US politics and a historic second impeachment for President Trump could be on the cards at the end of a presidency that has often been hard to predict. Taken fromImpeachment: What Everyone Needs to Know ,we look at some of the key questions surrounding such an action to remove him from office:
There is a general expectation that most issues pertaining to a presidents performance in office are to be dealt with through the electoral process (if the president runs for re-election) and the other checks recognized as applying to presidential conduct, such as popularity, the press, the judgment of history, and congressional oversight. Impeachment is a last resort for handling misconduct that cannot be dealt with by other means and that involves misconduct sufficiently serious to constitute treason, bribery, or other high crimes and misdemeanors.
Instead of being subject to a statutory mechanism like the Judicial Discipline and Disability Act, presidents are subject to the Twenty-fifth Amendment, which was ratified in 1967. It provides a mechanism for handling a presidents becoming subject to some disability that prevents him from doing his job, such as a major stroke or serious mental illness. This mechanism seems better suited than impeachment for dealing with incompetence resulting from some mental or physical disability.
The Twenty-fifth Amendment has four sections. The first section codifies the precedent set by John Tyler, which clarified who became president when a president died in office. Tyler claimed that the presidents death automatically elevated him from the vice presidency to the presidency. The Twenty-fifth Amendments first section now makes that practice a constitutional directive.
Section 2 of the Twenty-fifth Amendment provides a procedure for replacing a vice president who resigns, dies, or is incapable of further performing the duties of his office. If any of those things happens, the president is empowered to nominate a replacement, who has to be approved by a majority of each chamber of Congress.
Section 3 of the Twenty-fifth Amendment provides a procedure for temporarily empowering the vice president to take over the responsibilities and duties of the presidency. It provides that when a president transmits a written declaration to the president pro tempore of the Senate and the speaker of the House that he is unable to perform his duties, the vice president assumes those duties until the president sends another written communication to the same officials declaring that he is capable of resuming his duties.
The fourth section of the Twenty-fifth Amendment provides a procedure to be followed if the president becomes disabled but is unable to produce the written communications required in Section 3. This procedure allows the vice president, together with a majority of either the principal officers of the executive departments or of such body as Congress may by law provide, to declare the president unable to discharge the powers and duties of his office through a written declaration submitted to the speaker of the House and the president pro tempore of the Senate.
Section 4 is the only section of the Twenty-fifth Amendment that has never been invoked. Sections 1 and 2 were invoked three times during the Watergate scandal and Section 3 has been invoked three times to appoint vice presidents as acting presidents all for medical reasons.
The short answer is that it depends on the facts, but as we know from the plain language of this section, it comes into play if the vice president and a majority of the cabinet (or some other authority that the Congress has designated by statute) determine that the president has become disabled because of some mental illness or other problem.
This analysis cannot be a substitute for the kind of fact-finding that would have to be undertaken if this portion of the amendment was ever invoked. We know, from the congressional debates on the Twenty-fifth Amendment that these provisions were intended to address mental or physical incapacitation, as well as situations where a president might be out of reliable communication or kidnapped. We know as well that the purpose of this section is not to provide a means for a no-confidence vote but is designed to provide clarity and therefore some safeguards on circumstances when presidential incapacity requires putting his second in command in charge of the government, at least temporarily. The requirements themselves suggest a high threshold for its implementation, depending on the presidents own allies and appointees to come together to a significant degree for the sake of the country.
If Congress has to determine a Section 4 dispute between the vice president and the president, the Constitution makes it highly likely that the president will win (as he should, given the likelihood that he is the one who has been elected to the office). The requirements (1) for the acting president and a majority of the cabinet to send a second declaration that the president is incapacitated in response to the presidents issuing a challenge within four days of their initial declaration and (2) for two-thirds of each chamber of Congress within twenty-one days to express their agreement with the second declaration of the presidents incapacity (as a prerequisite for the vice presidents continuing to serve as acting president) are powerful checks on the vice president and cabinet stealing the office from the president. The acts high thresholds create a default rule that the president remains in office unless they can be met.
Whether that two-thirds support actually exists would of course depend on the facts and public perception at the time as well as the congressional and public perceptions of the vice president and the cabinet. If, for example, the vice president and the majority of the cabinet were widely considered to be acting out of the best motives and perceived to have been loyal and credible, the public and members of Congress, particularly the presidents partisan allies, might be more receptive to the determination of the need to replace the president temporarily. The presumption underlying the structure is that if the two-thirds threshold were met there must be compelling or strong evidence to declare the president incapacitated and thus unable to perform his duties.
Featured image by Alejandro Barba.
Questions on a Trump impeachment and invoking the Twenty-fifth Amendment - OUPblog
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Restraining order filed in lawsuit to stop border wall construction near Eli Jackson Cemetery – KGBT-TV
HIDALGO COUNTY, Texas (KVEO) More than 20 relatives of people buried at the Eli Jackson Cemetery have joined in a lawsuit to stop border wall construction near the gravesite.
On Friday, the U.S. District Court for the Southern District of Texas heard arguments on whether to approve an emergency temporary restraining order filed from the relatives to momentarily stop Southwest Valley Constructors Co. from constructing the border wall near the cemetery.
According to the relatives, Southwest Valley Constructers are causing damage to the cemetery as well as to the church building and cemetery at the nearby Jackson Ranch Church and Cemetery.
The restraining order asks construction to not take place within 500 feet of the cemetery.
The construction company argues in court documents that damages at the site were present before construction began. They state there is no legal reason to halt construction for the restraining order or for the lawsuit in general.
However, the relatives claim the construction near the cemetery violates the Texas Constitution, Article 1, Section 19 and the Fifth Amendment of the United States Constitution as they have a property interest in the cemetery that would be harmed by the border wall.
While the court did hear the argument on Friday and faced evidence from both parties, court documents do not show that a conclusion was made on the restraining order.
The Eli Jackson Cemetery and Jackson Ranch and Cemetery are located about a mile from the Rio Grande River in a remote part of Hidalgo County south of Pharr.
Border wall construction is taking place north of the cemetery, which would leave the gravesite in a no mans land facing Mexico. Family members and visitors would have to pass through the wall in order to reach the cemetery if construction is completed.
The ranch was founded in 1857 by Nathaniel Jackson and Matilda Hicks who originally traveled from Alabama. The pair migrated to south Texas to escape the prejudices of interracial marriage found in Alabama.
Jackson used the ranch as a refuge for enslaved people who escaped from Texas or other parts of the south.
When Jackson died in 1865, his son Eli established the location as a cemetery as well. Veterans of the Civil War, Korean War, World War I and II, among others, were later buried at the site.
The Jackson Ranch and Cemetery were certified by the Texas Historical Commission in 1983. The Eli Jackson Ranch was certified in 2005.
Restraining order filed in lawsuit to stop border wall construction near Eli Jackson Cemetery - KGBT-TV
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Letter: Hard lessons we are learning – Opinion – HollandSentinel.com
FridayJan15,2021at12:15AM
Should Joe Biden attempt to "look forward" and fail to hold the soon-to-be-not-president accountable for his actions, not only will he suffer the same ignominy that befell Gerald Ford in the wake of the Nixon pardon, but he will also guarantee a Democrat annihilation in the 2022 midterms and beyond.
The Democrats fortunes, however, are not the point.
Hoping to dodge the fallout that followed In the wake of Barack Obamas ill-advised (guided by "norms") decision to "look forward" after the misdeeds of the George W. Bush administration would be stunningly hypocritical. You simply cannot mouth the words "no one is above the law" and then short-circuit the law because its ... uncomfortable.
There is a massive record that exists already, used as a basis for the wholly successful impeachment by the House. The Mueller Report oft vilified but still left simmering spells out 10 instances of possible obstruction of justice. Start there, Merrick Garland. And subpoena those tawdry pardon recipients who no longer enjoy Fifth Amendment protections on the subject.
But look at everything because dozens of allegations go beyond the abandonment or destruction of the aforementioned norms. The past decisions of the DOJ, or the FBI, or any other body with jurisdiction not to investigate or bring charges are not dispositive. Take the time NOW to render essential justice.
While many smile at the prospect of orange jumpsuits lets all realize the result is less important than the process, if only marginally. A factual record is paramount, as it will guide the decision-making and legislation of the future.
To wit, Congressman Huizenga, your recorded vote on electoral certification will stand forever as a pathetic attempt to gloss over your recorded signature on Ken Paxtons unconstitutional lawsuit.
Some guidance is gained, and some lessons are learned, harder than others.
Richard Wolfe
Park Township
Letter: Hard lessons we are learning - Opinion - HollandSentinel.com
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States highest criminal court to review murder conviction of Roy Oliver, ex-cop who killed 15-year-old – The Dallas Morning News
Updated at 4 p.m.: Revised to reflect statements from attorneys involved in the case.
The states highest criminal court agreed to review the murder conviction of Roy Oliver, a former Balch Springs police officer who fatally shot a Black teenager while on-duty in 2017.
The Texas Court of Criminal Appeals announced Wednesday that it will examine the case but will not hear oral arguments in the murder of 15-year-old Jordan Edwards.
Oliver, 41, was convicted of murder in 2018 and sentenced to 15 years in prison and a $10,000 fine.
Jordan was leaving a party the night of April 29, 2017, with his two brothers and two friends when Oliver, who is white, shot into the car as it was driving away. Gunshots had been fired nearby by people unaffiliated with the party, and the other teens in the car have said they were driving away because they were afraid.
Oliver testified that he thought the car was going to hit his partner, who had responded with him to a complaint about a loud party.
During the trial, Olivers partner, Tyler Gross, testified he didnt fear that he was going to be run over by the car during the incident.
Mike Snipes, a former Dallas County prosecutor who won the murder conviction against Oliver, said hes not surprised to see the case move so far in the appeals process because of its significance.
We feel very confident about what we did procedurally and at trial during that case, and so I welcome the review, Snipes said. I just think at the end of the day, the conviction will be upheld.
Robert Gill, Olivers attorney, said the appeal is largely related to Garrity v. New Jersey, a 1967 Supreme Court decision that says law enforcement officers and other public employees have Fifth Amendment protections when they give a statement about an incident, meaning the statement cant be used against them in criminal proceedings.
Olivers lawyers argue that some information that Oliver gave in initial statements after he shot Jordan should have been withheld.
There isnt very much Texas law on the issue surrounding the Garrity case and an individuals Fifth Amendment rights ... so were glad to see the court wants to review that, Gill said.
Lee Merritt, an attorney who represents Jordans family, said the same issue that came up early on in the trial.
We actually dont have any issue with the review. We dont believe that particularly on that very narrow issue we dont believe that it will be significant enough to overturn the results of the case, he said.
Merritt said Jordans family continues to mourn his death and that their civil lawsuit is still active.
Oliver appealed his case to the 5th Court of Appeals in Dallas, which ruled last August to uphold the conviction.
Olivers lawyers argued that a jury would have agreed that Oliver was acting to protect his partner had they received different instructions before deliberating.
There is no timeline for the Court of Criminal Appeals to make a decision.
Oliver is currently serving his 15-year sentence at the W. F. Ramsey prison in Rosharon, Texas.
Staff writer Dana Branham contributed to this report.
States highest criminal court to review murder conviction of Roy Oliver, ex-cop who killed 15-year-old - The Dallas Morning News
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Theyve been hidden too long: Report details Los Angeles Sheriffs deputy gangs and violence toward communities of color – East Bay Times
For the past several years, Sean Kennedy, a Loyola law professor and his students noticed a troubling pattern forming within the Los Angeles County Sheriffs Department and its well-documented deputy gang problem.
A sheriff downplays or denies the problem of the deputy cliques.
A scandal erupts, usually from a lawsuit or reporting by the Los Angeles Times, exposing one of the deputy gangs and alleged misconduct like lying in court or during investigations.
The sheriff pledges to investigate the issue.
The findings of those investigations such as those promised by former sheriffs like John Scott and Jim McDonnell are never released to the public.
And the gangs, some of whom have a history of violence and harassment toward fellow department employees and members of the public, live on in relative secrecy.
Despite a growing list of allegations of misconduct by deputy gangs revealed in various commission reports and external investigations, Kennedy, who is also a member of the Sheriffs Civilian Oversight Commission, said the Sheriffs Department has struggled to address the issue within its ranks.
To move the needle toward more answers, Kennedy and his students wanted to create a single document that lays out all that is known including from findings from federal commissions, county inspector general reports, civilian commission hearings, court documents, news articles, interviews with former deputies about the departments deputy gangs.
After 24 months, the report was published Wednesday, and documents at least 18 deputy gangs or cliques that are suspected to have been operating within the Sheriffs Department for the past 50 years.
There have been so many pledges to get to the bottom of this issue that go nowhere, Kennedy said. Theyve been actively hidden too long.
Sheriff Alex Villanueva introduced a new policy in August, banning deputies from forming and participating in cliques and sub-groups. He also committed to investigating allegations of a deputy gang controlling the Sheriffs Compton Station. The department said Wednesday a study looking at deputy gangs, conducted by the Rand Corporation, is set to wrap up in the next few months. The FBI also has ongoing probes into the departments gangs.
The Sheriffs Department called the Loyola Law School report non-peer-reviewed, leaning on non-academically acceptable citations and unproven allegations as a primary basis for content.
The Department will examine the report and extrapolate everything which may be helpful towards positive organizational change, the Sheriffs Department said Wednesday through a spokesman.
The totality of the evidence, when viewed as a whole is very strong, that there is a longstanding, internal gang problem that goes unaddressed in the department, Kennedy said, responding to the departments comments. For accuracy, Kennedy said he ran the finalized report by five former high-ranking Sheriffs Department officials who recently retired.
Some of the gangs profiled in the report have been inactive for decades. Others are characterized more as subgroups with no evidence of gang-like activity.
However, several other deputy gangs, such as the Banditos, Vikings and Executioners, are suspected to be active and carry with them a slew of allegations of violence, harassment, and intimidation toward other department employees and members of the public, the report said.
Kennedy said he worries most about how these deputy gangs harm the communities they police. Most of the known deputy gangs operate within Sheriff stations located in communities that are inhabited predominantly by people of color, the report said.
Operating out of the Sheriffs Compton Station, the Executioners are alleged to have hosted celebrations after a deputy shot someone, later inking the deputy involved in the shooting with the gangs symbol, a skull wearing a Nazi helmet with CPT on front and a rifle encircled by flames, the report said, referencing Austreberto Gonzalez, a deputy at the station who shared the account during a 2020 deposition. Black and female deputies are reportedly barred from joining the gang.
Gonzalez also testified that the two Compton Station deputies involved in the fatal shooting of 18-year-old Andres Guardado in June Miguel Vega and Christian Hernandez were prospects looking to join the Executioners at the time of the shooting, the report said. Vega, who fired the shots that killed Guardado in Gardena, has remained silent, repeatedly invoking the Fifth Amendment throughout the Sheriffs investigation and during a November coroners inquest.
The Vikings gang, previously operating out of the now-defunct Lynwood Station, has been accused by Black and Latino residents of taking part in shootings, killings, beatings, racial-profiling incidents and illegal searches in an effort to terrorize their community. One federal judge called the gang a neo-Nazi, white supremacist gang.
The Century Station in Lynwood, the report said, is occupied by two other gangs, the Regulators and Spartans.
Some deputy gangs found themselves at the center of wide-ranging investigations into deputy misconduct, including the countys jail abuse scandals that stained the departments legacy from the late 1990s and well into the 2010s, leading to the convictions of more than a dozen Sheriffs officials, including former Sheriff Lee Baca and former Undersheriff Paul Tanaka, a recorded member of the Vikings, according to the report.
In the Antelope Valley communities of Palmdale and Lancaster, deputies with Rattlesnakes symbols and skulls tattooed on them have become synonymous with discriminatory policing against Black residents, particularly among those living in public housing, the report said. Quoting a U.S. Department of Justice report from 2013, the report said deputies associated with the Rattlesnakes gang took part in unlawful searches and seizures and unreasonable use of force.
Gangs that operated in county jails included the 3000 Boys, 2000 Boys and the Posse.
In 1998, a Black man with a mental illness died after deputies in the Twin Towers jail beat him, the report said.
Days later, eight members of the Posse beat another mentally ill man, leaving flashlight marks on his back and boot prints on his side, the report said. A 1999 federal commission report highlighted the gang and its practice of violently targeting inmates with mental illness.
The 3000 boys were also known to take part in excessive force against inmates, according to the 2012 report by the Los Angeles County Citizens Commission on Jail Violence.
The Loyola report also found that among all 133 deputy shootings in the past five years, from November 2015 to November 2020, the stations that led the list in the most shootings, each has an active deputy gang, as well as a history of complaints, reporting, and lawsuits alleging deputy-gang misconduct. The East Los Angeles Station where the Banditos are said to be operating, topped the reports list with 20 shootings. About 80% of those shot by deputies were Black or Latino, the report said.
The report calls on the Sheriffs Department to address the gang issue by enforcing its new policy, prohibiting subgroups. Also, it asks the department to require existing employees to fill out a tattoo image form, something Villanueva and McDonnell have previously refused to subject their deputies to. Any findings the department has on its cliques or gangs should also be made public through the public records act, the report said.
Other suggested solutions include having prosecutors ask deputies who take part as witnesses in criminal cases to state whether or not they are affiliated in a deputy gang. The report also called on judges to allow defense attorneys to cross-examine deputies about their gang-affiliated tattoos.
Really they need to just release the info and let various people and groups investigate, Kennedy said of the Sheriffs Department. If its just as some say, a harmless social group, then nothing will come of it. But the more startling allegations that should concern us all.
Theyve been hidden too long: Report details Los Angeles Sheriffs deputy gangs and violence toward communities of color - East Bay Times
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The Georgia Dad Who Said That He Wanted to Kill Nancy Pelosi – The New Yorker
Cleveland Grover Meredith, Jr., who goes by Cleve, grew up in a wealthy suburb of Atlanta in the nineteen-seventies and eighties. His father owns a hundred-year-old company that makes utility poles, and his mother was a homemaker who later became an interior decorator. He had two sisters, one of whom died young, of brain cancer. He attended the prestigious Lovett School, in north Atlanta, where nearly all his classmates were white, and where, a few of those classmates told me recently, the N-word was occasionally heard in the hallwaysmaking it depressingly similar, one said, to many schools in the area at the time. Meredith was an upbeat kid. One of his classmates, Dean Temple, who is now a stage actor, recalled a class trip to the U.S. Capitol. Most of the details were fuzzy, Temple said, but he could still recall the smile on Cleves face.
In high school, Meredith twice led Lovett to cross-country championships. He was so damn fast, he seemed to be on his own, a former teacher at Lovett told me, adding that Meredith set himself apart and above others. He was a popular and good-looking guy, Matt Arnett, whos now a music producer in Atlanta, said. A former family friend told me, He was about cars, running, and ego. He drove a Datsun 280ZX, and won the best car award in his senior year. He started a detailing business, Temple said, mainly so that he could drive fancy vehicles, and he painted flames down the side of the family station wagon. Patrick Brown, who became a lifelong friend, described a trip to the Grand Canyon during which Meredith, goofing off with other kids, slathered himself with ketchup and lay down in the middle of the road. The first people to pull up were the fucking game wardens, Brown said. I still have the citation. But that was Cleve. He loved to pull pranks. Brown went on, I dont see him as a violent person. Just a high-energy guy. Electric is the word Id use. Tries to suck the marrow out of life. He added, At the end of the day, I dont know if theres a joke element to it.
By it, Brown meant Merediths espousal, in the past decade, of extreme and increasingly paranoid right-wing views, including the set of wild delusions that circulate among those who believe in the QAnon conspiracy, which holds that many Democrats in Washington and Hollywood are satanists and pedophiles. Meredith has shared those views on Facebook and elsewhere; at times, there appeared to be an element of trolling involved. But he could also seem deadly serious. Last week, Meredith was one of the first thirteen people charged in connection with the violence that followed a rally on January 6th for Donald Trump in Washington, D.C. The next day, House Speaker Nancy Pelosi held a press conference calling on Vice-President Mike Pence to invoke the Twenty-fifth Amendment. Meredith allegedly texted an acquaintance, Thinking about heading over to Pelosi CUNTs speech and putting a bullet in her noggin on Live TV. He appended the purple devil emoji. He allegedly had two firearms and thousands of rounds of ammo in his trailer.
Brown, who voted for Trump but said he didnt believe that thered been widespread election fraud and that theres no place for violence at any of these demonstrations, told me that hes still trying to make sense of it all. When we spoke, he was not yet aware that Meredith evidently never made it to the Capitol. Maybe he desecrated that place, Brown said, of his friend, and if he did Id beat the shit out of him. He went on, But if I was gonna go to battle and war for this country, I would want him on my side, next to me, in the trench. Hes a warrior, in a way.
Before graduating from Lovett, in 1986, Meredith served on the homecoming court, and he was active in vestry, a group connected with the schools chapel that did volunteer work and assisted in worship services. Always carrying that cross, the family friend told me. For his yearbook page, he chose a quote from Life in the Fast Lane, by the Eagles: Blowin and burnin, blinded by thirst, didnt see the stop sign, took a turn for the worst. After Lovett, he went to Sewanee, an Episcopal liberal-arts college in the hills of Tennessee. He had not been especially interested in politics in high school, and didnt seem to be at Sewanee, either, Arnett said. Its not exactly a bastion of militant conservatism, he added. I dont think he changed much there.
After college, he opened a car wash north of Atlanta. He got married and had two sons. He enjoyed driving Jet Skis and motorcycles and big trucks and trailers, Arnett said. I never got the impression that all that was funded by the car wash. I think he had family money. In recent years, Meredith raced Porsches and drove speedboats. He loved his toys, Brown said. On Facebook, Meredith posted pictures of those toys, and began sharing his opinions about the state of the country. After Barack Obama was elected President, those posts became exceptionally racist, a former classmate told me. She recalled one that referred to Obama as a porch monkeyshe added, of the slur, I thought that was of a vintage before my time. She unfollowed Meredith but still occasionally saw his posts. It seemed to her that he was disturbed by a world that had changed.
Temple thought so, too. I confronted him about his outspoken hatred of Muslims, he said. It struck him as a clichd, right-wing-media, knee-jerk take on the ills of the world. Meredith, to Temples surprise, responded with a seemingly open mind. I thought, Huh, that went well. But he really turned into a troll, and kind of a cult member, eventually.
Arnett, who tends to vote for Democrats, told me that his own Facebook page was a place where people from the right and left would debate. And Cleve was one of those people that would jump in with just the craziest, most outlandish things. One of Merediths recurring themes was that the Confederate flag represented heritage, not hate, he said. Meredith made a version of this argument after a white man named Dylann Roof killed nine members of a Black church in Charlestonat which point, Arnett said, he unfriended him. His posts just became so virulently racist and unmoored from fact, I drew the line, he said. Meredith was upset by the unfriending, and the two men had a long private exchange about it through Facebook. Honestly, Meredith wrote, I think the only way to solve these major issues and Im not talking about just racial/social issues, Im talking about the whole gamut (economic, military, debt, etc) is to flush everybody (both sides of course) out of Washington and start over... to hit the reset button.... Just not sure how we do that.
A few weeks before Meredith sent that message, Donald Trump announced that he was running for President. Meredith was thrilled. Somebody like Cleve was the perfect target for Trumps rhetoric, Arnett told me. Its much easier to understand why, perhaps, lower-income people would be susceptible to that talk, he added. But I think there are people of greater means, like Cleve, who see the way of life changing from white control of everything that has made them very comfortable. Meredith also enjoyed Trumps owning of the libs, Arnett said.
Though Meredith lost a few friends and followers on Facebook, he also gained new ones. Suleiman Fetrat, an Afghan-American former defense contractor, who has a degree in political science, is a few years older than Meredithold enough, he told me, to have been fooled by both sides. A mutual friend connected him with Meredith in late 2015, and Fetrat described to me a warm online relationship that transcended their divergent politics. (An ardent Bernie Sanders supporter, Fetrat sat out the 2016 election, then voted reluctantly for Joe Biden in 2020.) They never met in person, though, and Fetrat took notice of Merediths evolution with a degree of detachment, watching him parrot the Gateway Pundit, Trumps Twitter feed, Fox News, and, eventually, QAnon supportersand finding it all more fascinating than frightening. He took the red pill with the Q stuff, Fetrat said. I was grateful for that. My specialty is political ideology. I was an observer of this whole thing. Fetrat knew many Trump supporters, but Cleve was beyond that, he told me, adding, I hesitate to say this, but he and others like him are like the American Taliban. The difference, Fetrat believed, was that Merediths tough talk was, in his view, basically bluster. He enjoyed tweaking Meredith, and being his libtard pal. I dont think Cleve would ever hurt anybody, he said. Hes all nave braggadocio. Bark, no bite. He added, We always promised to meet each other. He would always say, When it all goes down, Ill protect your children. As much as we disagreed, he had my back.
In the spring of 2018, Meredith put up a billboard near his business, Car Nutz Car Wash, that read, simply, #QANON. The Atlanta Journal-Constitution ran a story about it; Meredith told the paper that he was a patriot among the millions who love this country. Then he put the hashtag on the car washs marquee. A real-estate appraiser named Chris got into an argument with him about it, and later wrote about the exchange in a private Facebook group. I told him that it is dumb to have the name of a batty insane organization flashing on their sign, that it drives away customers like me and makes them look like idiots, Chris wrote. Oh so you must be a Hillary supporter, Meredith said to him, according to Chriss account. I bet you are on welfare, and you are unemployed. Meredith continued to yell at me as other customers were in their cars in line, hearing all of it, Chris wrote. Soon afterward, Meredith began driving a blue two-door Saab decorated with a giant law-enforcement star bearing the name Donald Trump. He posted pictures of the vehicle on Facebook with the caption Theres a new Sheriff in town.
It was around this time that Meredith and his wife separated, and he moved from Cobb Countya once conservative area just north of Atlanta that has lately turned blueto Hiawassee, a small, deeply conservative town in the north Georgia mountains. (His ex-wife did not reply to an interview request.) Merediths parents had, at this point, become concerned enough about their son to call the Hiawassee Police Department to give them a heads-up. They wanted me to be aware of his involvement with Q, and the social-media posts hed been making, Paul Smith, Hiawassees chief of police, told me. (Merediths mother declined to comment for this story. His father could not be reached.) They described their son as a great person who had fallen from grace into far-right-extremist territory, Smith said, adding, They were letting me know that he seems like he could be dangerous and hes living in your city now. Merediths parents told Smith that they had communicated with the F.B.I., and the Hiawassee police passed along word to the Georgia Bureau of Investigation. Smith said that there was an investigation but that he didnt know the details.
In March, 2019, Meredith showed up at Lovett in his unmistakable Saab to protest an appearance by the Pulitzer Prize-winning historian Jon Meacham, who was there to speak about current affairs. Fairly anodyne stuff, one of Merediths old classmates told me, of Meachams talk. But Meredith ended up skirmishing with campus security. It got kind of scuffly, the classmate said. Security escorted Meredith from the eventone classmate heard a rumor from friends that they took him to the OK Caf, which, until recently, prominently displayed a carving of the old Georgia flag. Whatd they do, this classmate speculated, laughing, go prop him under a Confederate flag for some fried chicken? Meredith was banned from Lovett after the incident. By March of last year, he was posting angry comments on his classs Facebook page. This was a page that has nothing to do with politics, the woman who unfollowed him told me. Meredith was posting things like, Democrats are idiots, theyre destroying America. Blah, blah, blah, she said. The page is devoted to who got married, who had a baby, who got a job! So it was weird.
After the coronavirus pandemic hit Georgia, Meredith became a strident opponent of mask-wearing, and his Facebook posts started earning him temporary suspensions from the platform. After his first suspension, Fetrat told me, He became more and more vitriolic, less willing to share where he got his info. Posting fewer links. He was also posting pictures of increasingly aggressive activity on his toys, Fetrat said: The last picture I saw on his Facebook feed, hed flipped a Bobcat front-end loader. At a certain point, you stop doing that kind of stupid thing. But he didnt. Hes immature.
In June, after George Floyd was murdered by police in Minneapolis, a group of Hiawassee residents held a demonstration in the town about police brutality. Meredith showed up in loafers and khaki shorts holding a IWI Tavor X95 rifle. Witnesses say that he held it up in a menacing way. The North Georgia News spoke to Meredith for a story about the demonstration; he told the paper that he was a fifth-generation Atlantan who supported America, freedom and President Donald Trump. As for the protest, he said, Its basically a political stunt done by the higher ups, just paying people to screw everything up. He added, I sincerely believe the New World Order, Cabal, Deep Statewhatever you want to call itwants society to devolve into a race war so that its much easier to take over. In August, after an Illinois teen-ager named Kyle Rittenhouse killed two protesters for racial justice and injured another with an AR-15-style rifle in Wisconsin, Meredith posted a photoshopped Robocop poster bearing Rittenhouses face and the tagline PART KID, PART COP, ALL PATRIOT.
The Georgia Dad Who Said That He Wanted to Kill Nancy Pelosi - The New Yorker
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GOOD TIMES RESTAURANTS INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an…
Item 1.01. Entry Into a Material Definitive Agreement.
On January 8, 2021 (the "Effective Date"), Good Times Restaurants Inc. (the"Company") and each of its wholly-owned subsidiaries, as guarantors, enteredinto a Fifth Amendment to Credit Agreement and Waiver (the "Amendment") withrespect to the Company's Credit Agreement with Cadence Bank, N.A., as lender("Cadence") entered into on September 8, 2016, as amended on September 11, 2017by the First Amendment to Credit Agreement (the "First Amendment"), as furtheramended on October 31, 2018 by the Second Amendment to Credit Agreement (the"Second Amendment"), as further amended on February 21, 2019 by the ThirdAmendment to Credit Agreement (the "Third Amendment"), and further amended onDecember 9, 2019 by the Fourth Amendment to Credit Amendment (the "FourthAmendment" and, together with the First Amendment, the Second Amendment and theThird Amendment, the "Credit Agreement").
The Amendment, among other things, modifies the Credit Agreement as follows: (a)extends the Maturity Date (as defined in the Credit Agreement) to January 31,2023; (b) provides that the commitments of the lenders will be reduced from$11,000,000 as of the Effective Date of the Amendment to: (i) $10,000,000 onMarch 31, 2021; and (ii) $8,000,000 on July 1, 2021; (c) provides that therequired Consolidated Leverage Ratio (as defined in the Credit Agreement) as ofthe end of any fiscal quarter is greater than 5.15 to 1.00; and (d) providesCadence's formal waiver of the event of default caused by the Company's failureto comply with the required Consolidated Leverage Ratio then in effect for thefiscal quarter ended March 31, 2020.
The forgoing description of the Amendment is qualified in its entirety byreference to the full text of the Amendment, a copy of which is filed in Exhibit10.1 to this current report on Form 8-K and is incorporated by reference herein.
The information contained in Item 1.01 regarding the Amendment is incorporatedby reference herein.
Item 9.01. Financial Statements and Exhibits.
*Filed herewith
Edgar Online, source Glimpses
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GOOD TIMES RESTAURANTS INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an...
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