Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P41 ppsx

SUICIDE and a California law that permits the possession of marijuana for medicinal use. In addition, Ashcroft filed a brief with the Supreme Court in support of ending the University of Michigan’s affirmative action admission pro- gram. While in office, Ashcroft advocated protection for the rights of gun owners while pressing for more severe punishments of those who c ommited c apital cr imes using guns or other WEAPONS. Despite state moratoriums on capital punishment, exonerations of death row defendants in more than 100 cases, and Supreme Court decisions that banned the execution of mentally retarded inmates and overturned cases where judges rather than juries had imposed the death penalty, Ashcroft overruled U.S. attorneys who had decided not to seek the death penalty, and he approved death penalty prosecutions in nearly half of all federal cases where capital punishment might have been applicable. Ashcroft resigned his position as attorney general in November of 2004. He was succeeded by ALBERTO GONZALES. On May 18, 2009, a lawsuit by Pakistani Muslim Javaid Iqbal against Ashcroft and FBI Director ROBERT S. MUELLER III charging abuse after the September 11th terrorist attacks was dismissed by the U.S. Supreme Court due to a lack of evidence. Four months later, however, the Ninth CIRCUIT COURT of Appeals ruled against Ashcroft in a similar case, giving Abdullah al-Kidd, a U.S. citizen, the right to sue Ashcroft for unlawful detainment. As of late 2009, Ashcroft continues his work with the Kansas City (Missouri) law firm he founded, The Ashcroft Group. FURTHER READINGS Annual Accountability Report. 2002. Washington, DC: Department of Justice. The Ashcroft Group. Available online at http://www. ashcroftgroupllc.com (accessed August 24, 2009). Ashcroft, John. 1998. Lessons from a Father to His Son. Nashville: Thomas Nelson Publishers. Branch-Brioso, Karen. March 5, 2003. “Ashcroft Reports Progress against Terrorism with Ridge and Mueller, He Tells Congress of Arrests, Better Information Sharing.” St. Louis Post-Dispatch. Cloud, John. 2001. “General on the March: John Ashcroft Wants to Mobilize the Justice Department to Fight Terror. Is He Going Too Far?” Time. (November 19). Fechter, Michael. 2002. “Ashcroft Defends New Wiretap Powers.” The Tampa Tribune. (November 21). ASHWANDER RULES A principle of constitutional law establishing judicial policy that courts should decide constitutional questions only when necessary and should decide the case on another basis if possible. In Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 2d 688 (1936), Justice LOUIS BRANDEIS articulated a series of seven principles that apply to the Supreme Court’s policy of deciding constitutional ques- tions. These principles include the policy that the court: (1) should not decide a constitutional question in a FRIENDLY SUIT; (2) should not anticipate a question of CONSTITUTIONAL LAW; (3) should not create a rule of constitutional law that is broader than that called for by the facts of the case; (4) should not decide a cons- titutional issue if the case can be decided on another ground; (5) should not rule on the constitutionality of a statute unless the PLAINTIFF is harmed by the statute; (6) should not pass on the constitutionality if the plaintiff has accepted the benefits of the statute; and (7) should not rule on the constitutionality of an act of Congress without first analyzing whether the act can be fairly construed in a way that would avoid the constitutional question. FURTHER READINGS Farber, Daniel A. and Suzanna Sherry. 2009. Judgment Calls: Principle and Politics in Constitutional Law. New York: Oxford University Press. Marks, Thomas C., Jr. 2008. “The Decline of American Culture: The Role of the Federal Judiciary.” Stetson Law Review. 37 (spring). CROSS REFERENCES Constitutional Law; Jurisprudence ASPORTATION The removal of items from one place to another, such as carrying things away illegally. Asportation is one of the elements required to establish the crime of LARCENY. In order to prove that asportation has occurred, it is not necessary to show that the goods were moved a substantial distance, but only that they were moved. Asportation was one of the elements neces- sary to establish common-law KIDNAPPING, and in many states it rem ains as an element of statutory kidnapping. ASSASSINATION Assassination is murder committed by a perpetra- tor without the personal provocation of the victim, who is usually a government official. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 388 ASHWANDER RULES First used in medieval times to describe the murders of prominent Christians by the Hashshashin, a secret Islamic sect, the word assassination is used in the twenty-first century to describe murders committed for political reasons, especially against government officials. Assassination may be used as a political weapon by a state as well as by an individual; it may be directed at the establishment or used by it. The term assassination is generally applied only to political murders—in the United States, most commonly to attempts on the life of the president. However, the classification of any one incident as an assassination may be in part a matter of perception. The assassination of the outlaw Jesse James, in 1882, provides an ex- ample of the difficulties. Thomas T. Crittenden, governor of Missouri, assumed that being seen as responsible for the death of the notorious outlaw would be good for his political career. For this reason, Crittenden granted each of the killers a pardon in addition to a $10,000 reward. But the U.S. public spoke vehemently against James’s killers, dubbing them assassins and his death an assassination. Crittenden was vilified by Amer- icans, and his political career was destroyed. It is not always easy to guess the motivations of those who attempt assassinations or to understand the historical and legal implications of their actions. The anti-constitutional nature of assassination has also made it a focal point for conspiracies and conspiracy theories. The first attempt at the assassination of a U.S. president was Richard Lawrence’s attack on ANDREW JACKSON in 1835. Although a jury acquitted Lawrence on the ground of insanity, Jackson was convinced that the attack was part of a WHIG PARTY conspiracy. The 1865 assassination of President ABRAHAM LINCOLN by John Wilkes Booth prompted its own set of theories. In a controversial decision, a military tribunal convicted nine people of conspiring in Lincoln’s assassination. In the case of one of those hanged for the crime, Mary E. Surratt, all that could be proved was that she owned the rooming house in which the conspirators plotted. Nonetheless, high emotions at the end of the Civil War resulted in her execution. After sentiments cooled and talk of conspiracies calmed, the two surviving conspirators imprisoned for Lincoln’s death gained pardons from President ANDREW JOHNSON. President William McKinley was shot by Leon F. Czolgosz, on September 6, 1901, at the Pan-American Exposition in Buffalo, New York. McKinley died on September 14. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ASSASSINATION 389 Even greater controversy was caused when the public was deprived of the opportunity to see Lee Harvey Oswald tried for the assassina- tion, in 1963, of President JOHN F. KENNEDY. Oswald’s death at the hands of JACK RUBY sparked theories of conspiracy that ranged from Communist plots to Mafia hits to cover-ups by U.S. officials. President LYNDON B. JOHNSON appointed a group of national figures, led by Supreme Court Chief Justice EARL WARREN,to investigate the assassination and issue a report. The WARREN COMMISSION concluded that Oswald had acted alone. Despite this conclusion, conspiracy theories remained widespread in books and in films such as Oliver Stone’s JFK: The Untold Story (released in 1991). In an attempt to calm public suspicions surrounding the Kennedy assassina- tion, the President John F. Kennedy Assassina- tion Records Collection Act of 1992 (44 U.S.C.A. § 2107) was passed by Congress. The act released much of the Kennedy assassination material in government files. As of 2009, its effectiveness at stilling concern over a possible conspiracy remained to be seen. It has become clear that the public demands a thorough investigation of any attempt on a president’s life. Because it is a crime to advocate the assassi nation of any U.S. president, pre sident- elect, VICE PRESIDENT, vice president-elect, or anyone legally acting as president (18 U.S.C. 1751), even THREATS are carefully investigated. In U.S. history, four presidents have lost their lives to assassins: Abraham Lincoln, JAMES GARFIELD, WILLIAM MCKINLEY, and John F. Kennedy. Political Assassination by U.S Government Employees In 1974 the Congress established a committee to investigate possible U.S. involvement in plots to assassinate foreign leaders deemed hostile to U.S. interests. Specifically, the committee inves- tigated the alleged involvement of the CENTRAL INTELLIGENCE AGENCY (CIA) in plots to kill Patrice Lumumba of the Congo, Fidel Castro of Cuba, Rafael Trujillo of the Dominican Republic, Rene Schneider of Chile, and Ngo Dinh Diem of South Vietnam. The absence of a written record and the failing memories of principal WITNESSES prevented the committee from conclusively demonstrating that presidents Eisenhower, Kennedy, or Nixon personally authorized the assassination of any foreign leader. However, the evidence did show that between 1960 and 1970, the CIA was involved in several assassina- tion plots. The committee reported its findings in 1975 to a dismayed Congress. Public outcry was loud and immediate. At the urging of both the House of Representatives and the Senate, President GERALD R. FORD signed an EXECUTIVE ORDER banning all federal emplo yees from committing assassination as a tool of U.S foreign policy or for any other reason (Exec. Order No. 11905). The order was extended by President RONALD REAGAN (who survived an assassination attempt) 15 years later to also preclude hired assassins. Title 18 U.S.C. §§ 2381 and 2385 (1976) prohibits the assassination of any officer of state or federal government. Following the September 11, 2001, terrorist attacks in New York City and Washington, D.C., Congress and the White House revisited the propriety of political assassinations committed by members of the U.S. government. In December 2002, according to a Globe and Mail news story, President GEORGE W. BUSH gave the CIA writt en authority to kill about two dozen terrorist leaders if capturing them proved to be impractical and civilian casualties could not be minimized. The CIA relied on that authority in using a pilotless Predator aircraft to fire a Hellfire antitank missile at a car in Yemen carrying an al-Qaeda operative. The al-Qaeda operative and five other people died in the attack. In July 2009 both the New York Times and Wall Street Journal published articles expound- ing on the CIA’s sequential plans to target and kill identified terrorists. The plans were formally abandoned in mid-2009 by CIA director Leon Panetta after he advised congressional intelli- gence committees that he himself had just learned of the scope of the plans; they initially had been kept secret by the CIA’s counterter- rorism center under the order of former vice president Dick Cheney. According to the Times article, law professor Kenneth Anderson of American University noted that as far back as 1989 the United States had argued that killing terrorists did not violate federal law as it would constitute a legal act of SELF-DEFENSE under INTERNATIONAL LAW. Such killings would be premised on the condition that authorities in the country where the terrorist was located were either unable or unwilling to prevent the terrorist from proceeding. But international GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 390 ASSASSINATION law experts rebutted Anderson’s justification with their own concerns. They cited the potential for violating the SOVEREIGNTY of the country where the terrorist was killed, the differing legal status between the CIA and the uniformed military, and whether such a killing would fall under the purview of the law of war. FURTHER READINGS Allen Chair Symposium 2002. 2003. “Political Assassination as an Instrument of National Policy: An Inquiry into Operations, Expediency, Morality, and Law.” Univ. of Richmond Law Review (March). “C.I.A. Had Secret Al Qaeda Plan.” 2009. Wall Street Journal, July 13. Donoghue, Mary Agnes. 1975. Assassination: Murder in Politics. Chatsworth, Calif.: Major Books. Edwards, William C., and Edward Steers. 2009. The Lincoln Assassination: The Evidence. Champaign, Ill.: Univ. of Illinois Press. Harder, Tyler J. 2002. “Time to Repeal the Assassination Ban of Executive Order 12,333: A Small Step in Clarifying Current Law.” Military Law Review 172 (June). Mazetti, Mark, and Scott Shane. 2009. “C.I.A. Had Plan to Assassinate Qaeda Leaders.” New York Times, July 14. McKinley, James. 1977. Assassination in America. New York: Harper & Row. Taylor, Stuart, Jr. 1998. “Assassination as Self-defense.” New York Law Journal (November 30). CROSS REFERENCE Lincoln, Abraha m, “Lincoln Assassination Conspiracy” (In Focus). ASSAULT At common law, an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact. An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal or civil liability. Generally, the COMMON LAW definition is the same in criminal and TORT LAW . There is, however, an additional CRIMINAL LAW category of assault consisting of an attempted but unsuccessful battery. Statutory definitions of assault in the various jurisdictions throughout the United States are not substantially different from the common-law definition. Elements Generally, the essential elements of assault consist of an act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim. The act required for an assault must be overt. Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat. A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim. Intent is an essential element of assault. In tort law, it can be specific intent—if the assailant intends to cause the apprehension of harmful or offensive contact in the victim—or general intent—if he or she intends to do the act that causes such apprehension. In addition, the intent element is satisfied if it is substantially certain, to a REASONABLE PERSON, that the act will cause the result. A DEFENDANT who holds a gun to a victim’s head possesses the requisite intent, because it is substantially certain that this act will produce an apprehension in the victim. In all cases, intent to kill or harm is irrelevant. In criminal law, the attempted battery type of assault requires a SPECIFIC INTENT to commit battery. An intent to frighten will not suffice for this form of assault. There can be no assault if the act does not produce a true apprehension of harm in the victim. There must be a reasonable fear of injury. The usual test applied is whether the act would induce such apprehension in the mind of a reasonable person. The status of the victim is taken into account. A threat made to a child might be sufficient to constitute an assault, while an identical threat made to an adult might not. Virtually all jurisdictions agree that the victim must be aware of the danger. This element is not required, however, for the attempted battery type of assault. A defendant who throws a rock at a sleeping victim can only be guilty of the attempted battery assault, because the victim would not be aware of the possible harm. Aggravated Assault An AGGRAVATED ASSAULT, punishable in all states as a FELONY, is committed when a defendant intends to do more than merely frighten the victim. Common types of aggravated assaults are those accompanied by an intent to kill, rob, or RAPE. An assault with a dangerous weapon is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ASSAULT 391 aggravated if there is an intent to cause serious harm. Po inting an unloaded gun at a victim to frighten the individual is not considered an aggravated assault. Punishment A defendant adjudged to have committed civil assault is liable for damages. The question of the amount that should be awarded to the victim is determined by a jury. COMPENSATORY DAMAGES, which are aimed at compensating the victim for the injury, are common. NOMINAL DAMAGES,a small sum awarded for the invasion of a right even though there has been no substantial injury, may be awarded. In some cases, courts allow PUNITIVE DAMAGES, which are designed to punish the defendant for the wrongful conduct. The punishment for criminal assault is a fine, imprisonment, or both. Penalties are more severe when the assault is aggravated. Many states have statutes dividing criminal assault into various degrees. As in aggravated assault, the severity of the crime, the extent of violence and harm, and the criminal intent of the defendant are all factors considered in deter- mining the sentence imposed. FURTHER READINGS Brewer, James. D. 1994. The Danger from Strangers: Confronting the Threat of Assault. New York: Insight Books. Duhaime, Lloyd. “Assault.” Duhaime.org. Available online at http://www.duhaime.org/LegalDictionary/A/Assault. aspx; website home page: http://www.duhaime.org (accessed August 28, 2009). National Center for Victims of Crime Web site. “Assault Victimization.” Washington, D.C.: Justice Department. Available online at http://www.ojp.usdoj.gov/ovc/pub- lications/infores/help_series/pdftxt/assaultvictimiza- tion.pdf; website home page: http://www.ojp.usdoj.gov (accessed August 28, 2009). ASSAULT AND BATTERY Two separate o ffenses against the p erson that when used in one expression may be defined a s any unlawful and unpermitted touching of another. Assault is an act that creates an apprehension in anot her of an imminent, harmful, or offensive contact. The act consists of a threat of harm accompanied by an apparent, present ability to carry out the threat. Battery is a harmful or o ffens ive touching of another. The main distinction between the two offenses is the existence or nonexistence of a touching or contact. While contact is an essential element of battery, there must be an absence of contact for assault. Sometimes assault is defined loosely to include battery. Assault and battery are offenses in both criminal and TORT LAW ; therefore, they can give rise to criminal or civil liability. In CRIMINAL LAW, an assault may additionally be defined as any attempt to commit a battery. At COMMON LAW, both offenses were mis- demeanors. As of the early 2000s, under virtually all criminal codes, they are either misdemeanors or felonies. They are characterized as FELONIOUS when accompanied by a criminal intent, such as an intent to kill, rob, or RAPE, or when they are committed with a dangerous weapon. Intent Intent is an essentia l ele ment of both of fenses. Generally, it is only necessary for the DEFENDANT to have an intent to do the act tha t c auses the harm. In other words, the act must be done voluntarily. Although an inte nt to harm the vict im is li kely t o exist, it is not a required element of e ither offense. There is an exception to this rule for the attempted battery type of criminal assa ult. If a defendant who commi t s this crime does not ha ve an intent to ha rm the victim, the individual cannot be guilty of t he offense. Defenses Consent In almost all states, consent is a defense to civil assault and battery. Some jurisdictions hold that Victimization Rates for Assaults by Crime and Characteristic, 2006 SOURCE: U.S. Bureau of Justice Statistics, Criminal Victimization in the United States, 2006. Total Aggravated Simple 0 5 10 15 20 25 30 35 Rate per 1,000 persons age 12 years or older 22.6 18.9 6.3 4.6 16.3 14.3 Male Female ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 392 ASSAULT AND BATTERY in the case of mutual combat, consent will not suffice and either party may sue the other. Jurisdictions also differ on the question of whether consent is a defense to criminal assault and battery. Consent must be given voluntarily in order to constitute a defense. If it is obtained by FRAUD or duress or is otherwise unlawful, it will not suffice. When an act exceeds the scope of the given consent, the defense is not available. A person who participates in a football game implies consent to a certain amount of physical contact; however, the individual is not deemed to consent to contact beyond what is commonly permitted in the sport. Self-Defense Generally, a person may use whatever degree of force is reasonably necessary for protection from bodily harm. Whether this defense is valid is usually determined by a jury. A person who initiates a fight cannot claim SELF- DEFENSE unless the opponent responded with a greater and unforeseeable degree of force. When an aggressor retreats and is later attacked by the same opponent, the defense may be asserted. The use of DEADLY FORCE in response may be justified if it is initially used by the aggressor. The situation must be such that a REASONABLE PERSON would be likely to fear for his or her life. In some states, a person must retreat prior to using deadly force if the individual can do so in complete safety. A majority of states, however, allow a person to stand his or her grou nd even though there is a means of safe escape. Whether the degree of force used is reasonable depends upon the circumstances. The usual test applied involves determining whether a reasonable person in a similar circumstance would respond with a similar amount of force. Factors such as age, size, and strength of the parties are also considered. Defense of Others Going to the aid of a person in distress is a valid defense, provided the defender is free from fault. In some states, the defender is treated as though he or she stands in the shoes of the person protected. The defender’s right to claim defense of others depends upon whether the person protected had a justified claim of self-defense. In a minority of jurisdictions, the defen se may be asserted if the defender reasonably believed the THIRD PARTY was in need of aid. Defense of Property Individuals may use a reasonable amount of force to protect their property. The privilege to defend one’s property is more limited than that of self-defense because society places a lesser value on property than on the integrity of human beings. Deadly force is usually not permitted. In most states, however, deadly force might be justified if it is used to prevent or stop a FELONY. An owner of real property or a person who rightfully possesses it, such as a tenant, may use force against a trespasser. Generally, a request to leave the property must be made before the application of force, unless the request would be futile. The amount of force used must be reasonable, and, unless it is necessary for self-defense, the infliction of bodily harm upon an intruder is improper. Courts have traditionally been more liberal in allowing the use of force to protect one’s dwelling. Subsequent cases, however, indicated that there must be a threat to the personal safety of the occupants. The states are divided on the question of whether a person who is legally entitled to property may use force to recover possession of it. In most jurisdictions, a landowner is not liable for assault and battery if the owner forcibly expels someone who is wrongfully on the property. The owner must not, however, use excessive force, and the fact that the person may not be held civilly liable does not relieve the owner of criminal liability. In some states, the use of force against a person wrongfully in possession of land is not permitted unless such person has tortiously dispossessed the actor or the actor’s predecessor in title. If possession of real or PERSONAL PROPERTY is in dispute, the universal rule is that force cannot be used. The dispute must be settled by a court. With respect to personal property, the general view is that an owner may not commit an assault or battery upon the wrongdoer in order to recover property. A majority of jurisdictions recognize the right of an owner in HOT PURSUIT of stolen property to use a reasonable amount of force to retrieve it. In some states, stolen property may be taken back peaceably wherever it is found, even if it is necessary to enter another’s premises. In all cases, the infliction of an unreasonable amount of harm will VITIATE the defense. Performance of D uty and Authority A per- son may use REASONABLE FORCE when it becomes GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ASSAULT AND BATTERY 393 necessary in the course of performing a duty. A police officer, for example, may use fo rce when apprehending a criminal. In some jur- isdictions, private citizens may also use reason- able force to stop a crime being committed in their presence. Certain businesses, such as restaurants or nightclubs, are authorized to hire employees who may use reasonable force to remove persons who disturb other patrons. Court officers, such as judges, may order the removal of disruptive persons who interfere with their duties. Persons with authority in certain relation- ships, such as parents or teachers, may use force as a disciplinary measure, provided they do not exceed the scope of their authority. Punishment may not be cruel or excessive. Punishment The law considers an assault and battery to be an invasion of the personal security of the victim for which the wrongdoer is required to pay for damages. The determination of the amount of damages to which a victim might be entitled if a defendant is found civilly liable is usually made by a jury. Generally, a PLAINTIFF is entitled to COMPENSATORY DAMAGES that compen- sate for injuries that are both directly and indirectly related to the wrong. Examples of compensatory damages include damages for pain and suffering, damages for medical expenses, and damages for lost earnings result- ing from the victim’s inability to work. NOMINAL DAMAGES , given although there is no harm at all, or merely a slight one, may also be awarded in an assault and battery action. Some jurisdictions allow the award of PUNITIVE DAMAGES. They are often given when the offense was committed wantonly or maliciously to punish the defen- dant for the wrongful act and to deter others from engag ing in similar acts in the future. The defendant might additionally be subject to criminal liabili ty. If a defendant is found criminally liable, the punishment is imprisonment, a fine, or both. The amount of time a defendant must serve in prison depends upon the statute in the particu- lar jurisdiction. When the offense is committed with an intent to MURDER or do serious harm, it is called AGGRAVATED ASSAULT and battery. An aggravated assault and battery is often commit- ted with a dangerous weapon, and it is punishable as a felony in all states. FURTHER READINGS Brewer, J. D. 1994. The Danger from Strangers: Confronting the Threat of Assault. New York: Insight. The Henry Law Firm (Philadelphia) Web site. 2009. “Assault & Battery.” Available online at http://www.henryfirm. com/CM/FSDP/P racticeCenter/Criminal-Law/Assault. asp?focus=topic&id=1; website home page: http://www. henryfirm.com (accessed August 28, 2009). Larson, Aaron. 2003. “Assault and Battery.” ExpertLaw Library. Available online at http://www.expertlaw.com/ library/personal_injury/assault_battery.html; website home page: http://www.expertlaw.com (accessed August 28, 2009). CROSS REFERENCE Hot Pursuit; Nominal Damages; Personal Property; Puni- tive Damages; Real Property. ASSEMBLY The congregation of a number of persons at the same locat ion. Popularly-elected political assemblies are those mandated by the Constitution and laws, such as the general assembly. The lower, or more populous, arm of the legislature in several states is also known as the House of Assembly or the Assembl y. Under the FIRST AMENDMENT to the United States Constitution, “Congress shall make no law abridging the right of the people peaceably to assemble.” When a governmental unit sets aside property for the public use, the property is designed as a “public forum” for First Amendment purposes, and the govern- mental unit must properly allow the exercise by the public of constitutional rights, including freedom of assembly. Examples of public forums include sidewalks, parks, and libraries. The right to assemble includes the right to PROTEST, although rights of assembly are gener- ally balanced with the need for public order. The Supreme Court has held that local govern- ments may constitutionally require those par- ticipating in public parades first to obtain a permit to do so. However, the Court has held that an organizer of a parade cannot constitu- tionally examine the content of a message of a parade applicant in determining whether to grant to parade permit. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992). CROSS REFERENCES First Amendment; Freedom of Speech; Public Lands. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 394 ASSEMBLY ASSENT An intentional approval of known facts that are offered by another for acceptance; agreement; consent. Express assent is manifest confirmation of a position for approval. Implied assent is that which the law presumes to exist because the conduct of the parties demonstrates their intentions. Mutual assent, sometimes called the meeting of the minds of the part ies, is the reciprocal agreement of each party to accept all the terms and conditions in a contract. ASSESS To determine financial worth. To ascertain the amount of damages. To fix and adjust the individual shares to be contributed by several persons toward a common beneficial objective in proportion to the benefit each person will receive. To tax by having qualified experts estimate the value of property by considering the nature of the property, its size, the value of other comparable property, and the proportionate share of services that is used by that property. To levy a charge on the owner of property that has been improved at the expense of the local government unit, such as when sewers or sidewalks are installed. ASSESSED VALUATION The financial worth assigned to property by taxing authorities that is used as a basis or factor against which the tax rate is applied. A prescribed amount of the value of each unit must be paid as taxes in the future. In most cases, the assessed value is not representative of the FAIR MARKET VALUE of the property. ASSESSMENT The process by which the financial worth of property is determined. The amount at which an item is valued. A demand by the board of directors of a corporation for the payment of any money that is still owed on the purchase of capital stock. The determination of the amount of damages to be awarded to a plaintiff who has been successful in a lawsuit. The ascertainment of the pro rata share of taxes to be paid by members of a group of taxpayers who have directly benefited from a particular common goal or project according to the benefit conferred upon the individual or his or her property. This is known as a special assessment. The listing and valuation of property for purposes of fixing a tax upon it for which its owner will be liable. The procedure by which the Internal Revenue Service, or other government department of taxation, declares that a taxpayer owes additional tax because, for example, the individual has understated personal gross income or has taken deductions to which he or she is not entitled. This process is also known as a deficiency assessment. ASSET Real or personal property, whether tangible or intangible, that has financial value and can be used for the payment of its owner’s debts. An accrued asset is one that arises from revenue earned but not yet due. For example, an accrued dividend is a share of the net earnings of a corporation that has been declared but has not yet been paid out to its shareholder(s). In BANKRUPTCY,anassetisanyformof property owned by a debtor who is insolvent that is not exempt f rom being used to repay debts. For INCOME TAX purposes, a capital asset is property held by a taxpayer for personal enjoyment or investment, such as a home, furniture, stocks and bonds, or an automobile, but does not include inventory, commercial accounts, and notes receivable, depreciable property, commercial property, copyrights, and short-term government obligations. When a capital asset is sold, any gain received is given preferential tax treatment. A current, liquid, or quick asset is an item that can be readily converted to cash, such as stocks and bonds. A fixed asset is one of a permanent or long- term nature used in the operation of a business and not intended for sale. A frozen asset is one that cannot be easily converted into cash, such as REAL ESTATE when there is no market, or that cannot be used because of a legal restriction, such as a SPENDTHRIFT TRUST. An intangible asset is one to which an arbitrary dollar value is attached because it has no intrinsic MARKET VALUE but represents finan- cial value, such as the GOOD WILL of a business, TRADEMARKS,orPATENTS. ASSIGN To transfer to another, as to assign one’s right to receive rental income from property to another. To GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ASSIGN 395 designate for a particular function, as to assign an attorney to defend an indigent in a criminal prosecution. To specify or point out, as to assign errors in a lower court proceeding on a writ of error that is submitted to request a court to reverse the judgment of the lower court. ASSIGNED ACCOUNT A type of secured transaction whereby an account receivable is pledged to a bank, factor, or other lender to secure the repayment of a loan . It is common commercial practice for a manufacturer or wholesaler to sell inventory on OPEN ACCOUNT, a debt owed to the seller of inventory that is to be repaid by its buyer as the merchandise is sold. This arrangement creates an ACCOUNT RECEIVABLE that the seller uses as collateral for a loan. ASSIGNED RISK A danger or hazard of loss or injury that an insurer will not normally accept for coverage under a policy issued by the insurer, but that the insurance company is required by state law to offer protection against by participating in a pool of insurers who are also compelled to provide coverage. ASSIGNED RISK PLAN An insurance plan created and imposed by state statute under which persons who normally would be denied insurance coverage as bad risks are permitted to purchase insurance from a pool of insurers who must offer coverage to such individuals. ASSIGNMENT A transfer of rights in real property or personal property to another that gives the recipient—the transferee—the rights that the owner or holder of the property—the transferor—had prior to the transfer. An assignment of wages is the transfer of the right to collect wages from the wage earner to his or her creditor. Statutes regulate the extent to which an assignment may be made. ASSIGNMENT FOR BENEFIT OF CREDITORS The voluntary transfer of all or most of a debtor’s property to another person in trust so that he or she will collect any money that is owed to the debtor, sell the debtor’s property, and apply the money received to the payment of the debts, returning any surplus to the debtor. The debtor is the assignor, the transferor; and the person who takes LEGAL TITLE to the property is the assignee. Types There are three types of assignments that are categorized according to the limitations im- posed upon the arrangement. A general assign- ment is one involving the transfer of all the debtor’s property for the benefit of all his or her creditors. A partial assignment is one in which only part of a debtor’s property is transferred to benefit all the creditors. When property is assigned to benefit only designated creditors, it is a special assignment. The assignment results in the property being beyond the control of the debtor. It is different from agency arrangements, pledges, or mortgages. Trust Law Unless otherwise expressly provided, trust law governs assignments for the benefit of creditors. The assignee is considered a trustee and his or her duties and responsibilities to the debtor’screditors are the same as a trustee’s to the beneficiaries of a trust. The document that embodies the terms of the assignment authorizes the assignee to liquidate the debtor’s property in satisfaction of the creditors’ claims against the debtor as quickly as possible. Under COMMON LAW,thiswastheassign- ee’s chief function. Even if the assignment instrument does not expressly empower an assignee to sell the property, the assignee still has the power to do so in order to pay the creditors. Creation It is not necessary for a debtor to obtain the consent of creditors before making an assign- ment for their benefit. An owner of property has a right to transfer legal title to it by virtue of ownership. The limitation derived from com- mon law that is placed upon its creation is that it cannot be done to dishonestly deprive a debtor’s creditors of their rights to have property sold to repay debts. When an assign- ment for the benefit of creditors is intend ed by the debtor to place his or her property beyond the legal reach of creditors, it is called a FRAUDULENT CONVEYANCE. This type of assignment is void, or legally ineffective, under statutes that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 396 ASSIGNED ACCOUNT prohibit such arrangements. An assignment by which the assignor-debtor retains any interest, benefit, oradvantage from the conveyance, such as keeping the right to revoke the assignment, made to DEFRAUD creditors is also a fraudulent convey- ance, as is an assignment by which the assignee is required to delay liquidation of the assets. In some jurisdictions, a partial assignment is considered a fraudulent conveyance because the creditors are hindered and delayed in receiving payment if they must seek payment from the debtor after first being referred to the assignee. Other jurisdictions treat any assignment by a solvent debtor as fraudulent on the theory that such an arrangement prevents the immediate sale of the property so that creditors are delayed and hindered. Deficiency A debtor is still liable to pay his or her creditors if the proceeds from the sale of personal and real property pursuant to an assignment for the benefit of creditors are not sufficient to complete- ly repay the debts. When, however, creditors agree to accept the proceeds in satisfaction of the debtor’s obligations, such an agreement is called a COMPOSITION WITH CREDITORS. For this reason, assignments for the benefit of creditors are used by corporate, rather than individual, debtors. Because preferences are permissible under common law, a common-law assignment for the benefit of creditors that provides for preferential payments to designated creditors is not a fraudu- lent conveyance. Most courts have held that debtors cannot use preferences to obtain dis- charges from creditors by conditioning prefer- ences on their release from unpaid portions of their debts. To do so is considered a f raudulent conveyance, because a creditor would have to accept virtually any condition that the debtor decided upon if the creditor were to receive any money from the assignee. Legality of Assignments Most states have enacted statutes that regulate assignments for the benefit of creditors. Some states require that an assignment must comply with statutory requirements or be invalid, whereas in others the debtor may make a common-law assignment, which is regulated by Assignment for the Benefit of Creditors This agreement is made between _________________________________________________________ [name of assignor] ("Assignor"), residing at ________________________________________________________________________________________ [address], and _______________________________________________________________________________[name of assignee(s)] ("Assignee(s)"), residing at ________________________________________________________________________________________[address]. The Assignor is unable to pay in full and desires to assign all of [his/her] property to Assignee for the purpose of the payment of this debt. Therefore, the Assignor hereby assigns, conveys, grants, and transfers to Assignee all of Assignor's property and interests in property, whether real or personal, tangible or intangible (except property exempt by law from levy and sale under execution) wherever situated, in trust for the benefit of the Assignee. [Include description of the property and assets conveyed to the Assignee] DATED on __________________________ __________________________, 20______ at: _______________________________________________________ Assignor ACCEPTED BY: _______________________________________________________ Assi g nee A sample assignment for the benefit of creditors ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ASSIGNMENT FOR BENEFIT OF CREDITORS 397 . v. Nationalist Movement, 505 U.S. 12 3, 11 2 S. Ct. 2395, 12 0 L. Ed. 2d 10 1 (19 92). CROSS REFERENCES First Amendment; Freedom of Speech; Public Lands. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 394 ASSEMBLY ASSENT An. Czolgosz, on September 6, 19 01, at the Pan -American Exposition in Buffalo, New York. McKinley died on September 14 . LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ASSASSINATION. benefit of creditors ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ASSIGNMENT FOR BENEFIT OF