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Asker
Posted about 2 years ago.

Let’s now look at how I feel due process fits into all of this:

The premise is that a criminal offense has occurred by that of the State of Colorado and/or its agents; kidnapping (which has no statute of limitations).

The business was a corporation. Under Federal law, a corporation is a “person” (artificial person) who enjoys the same rights under the law as a “natural person” (not similar rights but “the same”). In this case, the Right to Due Process would come into question; “…that no person shall "be deprived of life, liberty, or property, without due process of law.". Due process requires (under the law) that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. In this case, there was no hearing before a Magistrate and therefore no opportunity to be heard. If due process was violated as a result of the seizure of property without a hearing, the State and its agents acted unlawfully and therefore would not have an affirmative defense and would be subject to criminal law (kidnapping). Additionally, I believe there was malice on the part of the seizing officer as we went over her head previously to stop her intended actions which she was demonstrably upset over.

Kidnapping results when “(1) Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: … imprisons or forcibly secretes any person.”. In this case, the Corporation (a person with civil rights) was imprisoned (seized). Additionally, a charge of kidnapping sets forth the following requirements: Essential elements of the crime of kidnapping are: (1) Wilfulness or intent to do the act; (2) the act must be done without lawful authority; (3) there must be a seizing, or imprisoning; and (4) the act must be done against the victim's will, by means of force or otherwise. People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973).

Without creating a novel, I think the essential establishments are:
1. Is a Corporation a person (under the law) who is afforded the same civil rights as a natural person (in this case, Due Process)? I believe so.
2. Was Due Process violated as to the lack of being afforded the opportunity to be heard before a Magistrate? I believe so.
3. If Due Process was violated, did the State/its agents act unlawfully? I believe so.
4. If the State/its agents acted unlawfully, do they lack an affirmative defense and are now exposed to criminal action? I believe so.
5. Could the State/its agents be found criminally liable for its/their action? I believe so.

If a strong case could be made for a D.A. to file charges, the initial intent would be to lay it out before the actors for their consideration (prior to taking it to the D.A.). If all the ducks are in a row and laid before the actors, they would then be faced with weighing the merits of the potential criminal claim and the odds that if a criminal complaint were to be made what then would be their odds of prevailing in the subsequent criminal proceedings. If they believed there was an unacceptable chance not prevailing in a criminal case, would it stand to reason that they may make an unsolicited offer to right their wrong?

Rixon Charles Rafter III
Rixon Charles Rafter III, Litigation Lawyer - Fairfax, VA
Posted almost 2 years ago.

No, the state would not make an unsolicited offer in the facts you provided. No reason for them too. SOL has run.

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Asker
Posted almost 2 years ago.

As stated; there is no statute of limitations on kidnapping so I'm not sure what "SOL has run" is referring to.

It's funny how civil Attorneys feedback have all been the same as yours but criminal Attorneys feed back has been 100% inline with my thinking (lol).

I'm sure you're very good at what you do.

Thanks for your feedback.

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Asker
Posted almost 2 years ago.

... by the way; when considering applicable constitutional law and potential criminal liability, I'm sure they would be aware of 42 USC 1983. I believe this would open a new door for redress upon a conviction.

Michael T Millar
Michael T Millar, Litigation Lawyer - Toms River, NJ
Posted almost 2 years ago.

Most attorneys would refer you to the SOL for civil actions because the criminal charge of kidnapping is not applicable to the government's seizure of a business entity or the owner's non-payment of taxes.

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Asker
Posted almost 2 years ago.

I'm not sure how you've arrived at the conclusion that a corporation (an artificial person) isn't granted the same rights as a natural person (due process - the right to be heard). The State doesn't have the Constitutional authority to seize or imprison a person (natural or artificial) without due process, with very narrow exceptions (which wouldn't apply here).

Michael T Millar
Michael T Millar, Litigation Lawyer - Toms River, NJ
Posted almost 2 years ago.

You are assuming that the law treats natural persons and corporations the same in all respects - that assumption is wrong.
Seizing property for non-payment of taxes can never be kidnapping.

Rixon Charles Rafter III
Rixon Charles Rafter III, Litigation Lawyer - Fairfax, VA
Posted almost 2 years ago.

Best of luck to you.

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Asker
Posted almost 2 years ago.

There's no assumption here, I'm only going off of how the law reads and there's no distinction made by the law for the kidnapping of a natural person or an artificial person (a corporation). It's not just that they just seized a "property" here, but in the process, they also seized a "person" (an artificial person) which has the same right to due process and protection afforded a natural person (as well as unlawful search & seizure). The law does make distinctions on unrelated aspects of how a natural person vs. an artificial person is viewed or treated under the law (emotional intent: malice, etc..).

If you look at the legal definition of "person", you'll see there's no distinction made between natural or artificial that would support your statement "seizing... can never be kidnapping" when the property seized here was the entirety of the corporation, not just a part of the corporation. Therefore the entire person was seized (imprisoned).

I encourage you think outside your box.

It doesn't appear your argument is backed by the law as you site nothing to support it. If you look at the law, I think you'll be surprised at what you don't find to support your opinion.