The US built a super-sized criminal and civil justice court system over these few centuries to meet those RIGHTS.
JOHN F KENNEDY famously said----ASK NOT WHAT YOUR COUNTRY CAN DO FOR YOU---ASK WHAT YOU CAN DO FOR YOUR COUNTRY. Think about how that stance affects DUTY TO ACT. KENNEDY was saying---the government has no DUTY TO ACT---to enforce, to protect. This was setting the stage for REAGAN/CLINTON in 1980s-90s to use EXECUTIVE ORDER to do just that---ignore government's DUTY TO ACT as ROBBER BARON few decades was being staged.
Without coincidence this is when dismantling of all FEDERAL STRUCTURES built for accountability and oversight started. NIXON took our nation to FIAT MONEY------
THE FIRST DUTY OF GOVERNMENT:
PROTECTION, LIBERTY AND THE FOURTEENTH AMENDMENT
STEVEN J. HEYMAN
THE RIGHT TO PROTECTION IN THE ANGLO-AMERICAN
The Origins of the Right to Protection
"[E]very member of society," asserted the Pennsylvania
Constitution of 1776,
"hath a right to be protected in the enjoyment of
life, liberty and property."'
This declaration-which was soon echoed in the
of Delaware, Massachusetts, and New Hampshire'
-expressed a fundamental principle of American
constitutional thought by the time of the Revolution.
The right to protection did not originate in America,
however, but was inherited from English constitutionalism.
Its roots lay in the common law tradition and natural
It is necessary to explore these sources to understand
the concept of protection in American constitutional thought.
There is no confusion--we expect our local police to be trained under DUTY TO ACT to protect and enforce laws while regarding our rights as citizens. When we have far-right wing global banking 5% CLINTON/BUSH/OBAMA we get the opposite---they say THERE IS NO EXPECTATION OF DUTY TO ACT by government
Addressing cops' confusion over 'the public duty doctrine'
Proper training on the principles of the public duty doctrine and how it applies to police officers is essential to avoid liability on the part of the department and officers
Jan 5, 2012
Co-authored with Eric P. Daigle
The so-called public duty doctrine provides that “absent a special relationship between the governmental entity and the injured individual, the governmental entity will not be liable for injury to an individual... the governmental entity owes a duty to the public in general. The doctrine has been commonly described by the oxymoron, ‘duty to all, duty to none’.”
The concept of “duty” establishes a great moral obligation in those who have taken an oath to serve and to protect the public. Officers are instilled with the principles of honor, integrity, and selflessness. As a result of these basic principles, officers often feel required to take action in certain situations when taking no action may actually be the best course of action. Often, officers believe that they have a legal obligation to act above and beyond what is actually required of them.
Law enforcement professionals’ lack of understanding of the legal principles of the public duty doctrine often leads to inappropriate actions on the part of the officer. In addition, the fear of liability for “failure to act,” and the personal code of honor that many sworn public servants hold, influences their decision take action at all costs to protect and defend life and property. While this desire to serve the public is commendable, police officers must understand that they have no obligation to protect any one individual unless a “special relationship” exists. Rather, an officer’s sworn duty is to the general public.
Confusion and Conflict
As a general rule, an individual has no duty to come to the aid of another. A person who has not created, by his words or deeds, a danger to another, is not liable for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. The application of these general principles in the area of law enforcement and other police activities has produced some confusion and conflict. The confusion is further exacerbated by widely-held misconceptions concerning the duty owed by police to individual members of the general public.
By becoming a police officer, an individual does not give up his right to the protection of these general principles. A police officer does not “assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.”
Following these general principles, “California courts have found no duty of care and have denied liability ‘for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.’”
The concept of a lack of any special duty owed to any individual member of society who is in need of assistance often flies in the face of law enforcement professionals who have taken an oath of office to “protect and defend.” The oath of office for law enforcement officers, however, as required by the California Constitution, does not mandate duty to an individual. Rather, the oath cites the support and defense of the Constitution of the United States and the Constitution of California “against all enemies foreign and domestic.”
In Our Nature to Help
While neither the California Constitution’s oath of office, nor the International Association of Chiefs of Police model oath of honor, suggest that officers have duties other than the support and defense of the Constitution, and the maintenance of character, integrity, and public trust, no officer wants to see innocent individuals victimized or suffer harm of any sort.
One duty-dilemma issue, for example, may be the concern of contracting a fatal disease from performing CPR on a subject. Indeed, this is a real concern as just this past March, a deputy in Florida died five years after having contracted a virus while conducting CPR on an infant.9 Officers must discern the pros and cons of taking action in such a case to balance this unlikely tragic outcome against the more likely heartbreaking consequence of failing to act in a timely manner.
An officer’s misconception of his duty owed to the individual, however, may cause that officer to believe he has no choice but to provide assistance in the matter. While the officer is under no legal obligation to render aid to any one individual, once that officer decides to render aid to a victim, a special relationship may be established that produces a duty to an individual.
Examples from Case Law
Federal and State case law provide, for example, that:
• a police officer’s failure, upon stopping an automobile, to advise the passenger to leave the vehicle and find other transportation was not an actionable breach of duty to the passenger
• an officer owed no duty of care to a tow truck driver struck by a passing vehicle while working an accident scene because the officer did not create or increase the risk of harm that led to the injuries
• no duty existed where a police officer, upon responding to a disturbance, confiscated a gun that was later returned to the individual through department procedure and was used sometime thereafter to shoot the complainant because the initial seizure of the weapon did not establish a special relationship with complainant that would continue indefinitely
• a police officer owed no duty to order an accident victim who had sustained a spinal injury not to leave the scene
• police officers who recognized an assailant as a likely perpetrator of a prior assault, and conducted surveillance of assailant in a Laundromat in which the victim was present, did not establish a special relationship between the officers and the victim to impose a duty on the officers to protect the victim from the assailant
• a police officer, who stopped a motorcyclist for speeding but did not perform field sobriety test, had no legal duty to use due care to recognize signs of intoxication and prevent the motorcyclist from continuing to drive, and therefore, was not liable when the driver was involved in an accident ten minutes later
Courts typically find that no duty has been established and deny recovery for “injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.” For example, a plaintiff was unable to establish a duty on behalf of police when police failed to respond to a plea for assistance forty-five minutes before a homicide.
The courts, however, have found that police officers may create a “special relationship” with individuals in certain circumstances, thereby establishing a duty of care to that individual. This “special relationship” may be created when an officer performs an affirmative act which places a person in peril or increases the risk of harm. For example, an officer who investigated an accident and instructed an individual to follow him to the middle of the intersection, where the individual was hit by another car, established a duty of care for that person; a highway patrol officer established a duty to an individual when he parked his vehicle with lights engaged behind the stalled motorist, but later left the scene without warning the motorist who had relied upon his protection and was struck by another car.
Some departments have internal policies that stipulate the circumstances in which a special relationship may exist. The San Jose (Calif.) Police Department’s policy for rendering first aid, for example, states that officers who have begun rendering aid have created a special relationship with a victim and now have a duty to continue providing care unless one or more of the following conditions is present:
1.) The scene becomes unsafe,
2.) The officer is too physically exhausted to continue,
3.) The officer is relieved by someone of same or higher medical authority, or
4.) The victim revives
A source of confusion for some officers may be that while federal law is clear that there is no liability for failure to act when no special relationship exists between law enforcement and an individual, some liability may exist in certain situations where the state legislature enacts laws mandating an officer’s duty to take action. One such state-mandated duty to an individual arises in the area of domestic violence. Throughout the country for many years, officers failed to take seriously the dangers of family violence. As a result, states enacted legislation mandating special provisions and protections for victims of child and spousal abuse. As further documented in the California Commission on Peace Officer Standards and Training domestic violence workbook, these requirements include that officers shall make every reasonable effort to identify the “dominant aggressor,” shall complete a report in all domestic violence cases, and shall take custody of any firearm or deadly weapon in plain sight.
A Solemn Pledge
While legislated exceptions to the public duty doctrine exist, the officer must still understand that in only certain circumstances will he be exposed to liability for failure to act. This misunderstanding can lead an officer to take inappropriate action which violates an individual’s constitutional rights and could ultimately lead to litigation against the officer and the department.
Law enforcement personnel are moral and honorable public servants. Most sworn officers take their oaths of office as a solemn pledge — a pledge to safeguard life and property. Officers lose their lives every day attempting to fulfill this oath. Officers, however, often put themselves at risk because they incorrectly believe that they have a duty to act when, in fact, no such duty exists. Officers must balance the pros and cons of taking action against the rights, responsibilities, and the limitations of the profession imposed upon them by the Constitution, statute, and case law.
Proper training on the principles of the public duty doctrine and how it applies to police officers is essential to avoid liability on the part of the department and officers. The training should include a full and comprehensive review of the exceptions to this doctrine and any statutory requirements to act or protect individuals, as well as those situations in which, through an officer’s actions or omissions, create a “special relationship” resulting in a duty to persons.
We discuss in detail and shout often that our US 99% of WE THE PEOPLE expectation of local government having PUBLIC HEALTH structures like our Baltimore Public Health---like ambulances and emergency rooms having always been trained and enforced to DUTY TO ACT when we call---or they see we are facing crises.
All this disappears as DUTY TO ACT is lost in MOVING FORWARD. DUTY TO ACT in protecting against massive banking frauds these few decades moves to PUBLIC HEALTH AND SAFETY and EDUCATION.
Out-sourcing to private businesses small or global corporations will come to this------you call police---fire-----ambulance and someone on the end of phone line is thinking----CAN WE MAKE PROFIT IF WE TAKE THIS CALL? If they cannot---they can decide NOT to take your call for help----there will be no DUTY TO ACT.
This is MOVING FORWARD here in Baltimore as with all US FOREIGN ECONOMIC ZONES----you know, those SANCTUARY CITIES/STATES.
'Police officer suspended after beating a man in Baltimore
Published on Aug 12, 2018
The mayor described the encounter as "disturbing" and "demanded answers and accountability" after a video surfaced online'.
Duty to Act: Legal Obligations vs. Community Expectations
March 5, 2014
By Anthony S. Mangeri, Sr., Faculty Member, Emergency and Disaster Management at American Military University
Over the years, there have been several stories of public safety personnel, on and off duty, failing to meet the response expectations of their community. A recent incident in the District of Columbia involving the death of a man who collapsed near a fire station and not receive immediate aid, made it even more unclear if emergency responders have a legal duty to act versus an expectation by the community to aid those who seek help.
The term Duty to Act is a legal term that defines an individual or organization’s legal requirement to take action to prevent harm to a person or the community as a whole.
Events like the D.C. incident stirs debate about who has a legal duty to act and what that obligation actually means. More importantly, there can be a conflict between the legal obligation to respond and the community’s expectation of response.
Firefighters and emergency responders are hired/selected, trained, and funded by the community to respond to the public’s request for assistance in time of emergency. Even a department’s mission statement may establish a legal duty or relationship between the fire or rescue department and the community.
Legal Reality on Duty to Act
In 1981, the District of Columbia Court of Appeals ruled in Warren vs. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap., 1981).
The Court stated that it is a “fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual.”
A quick review of state statutes found that very few states actually have laws that mandate a duty to act. Such statutes, which require an individual to respond to another being harmed, are relatively new.
Duty to Act laws often emerges from cases of individuals standing by while others are injured. Vermont was one of the first states to pass a Duty to Act legislation and has one of the most clear and specific statutes. Vermont statute 519(a) states:
A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.
The law goes on to say that a person who provides reasonable assistance as listed above shall not be liable for civil damages unless his acts constitute gross negligence or unless he will receive, or expects to receive, remuneration.
Minnesota has very similar legislation to Vermont. Each state has embedded Duty to Act into the state’s Good Samaritan statutes.
These statutes seem to be very clear. However, it will be up to a court to determine the details and application of the statute based on the situation. There have been numerous “duty to act/failure to act” cases that have reached our courts. Many times, courts have ruled that there is no duty to act unless a duty is created by statute or by actions of the agency or personnel, which creates a duty.
The Public’s Expectations of Duty to Act
Perhaps more importantly, is the public’s expectation of how firefighters, emergency medical services, and other emergency professionals respond to requests for help.
What are the expectations of your community leaders and the public as a whole?
There are few simple answers and many of the issues are dependent on the laws of your state and the standards within your community. There appears to be neither national standards nor laws that would require public safety professionals to respond. However, once engaged, there are many requirements to render care.
Regardless of the law, there most likely will be a community expectation to render care when a person is in need. Moreover, nothing can destroy confidence in an emergency service organization more than to appear thoughtless and uncaring. This impact to the reputation of the organization can result in reduced funding and even community outcry for changes in leadership. Jurisdictions must research how their state statutes define a responder’s duty to act both on and off duty.
WHEN MOVING FORWARD US FOREIGN ECONOMIC ZONE POLICIES END NATIONAL, STATE, AND LOCAL SOVEREIGNTY ----THEN STATE OR LOCAL STATUTES DON'T HELP WITH GOVERNMENT DUTY TO ACT.
The Importance of Comprehensive SOPs/SOGs
In today’s emergency service environment, it just makes sense to develop and train personnel to maintain a standard of performance. Understanding both the requirements of statute and your community’s expectation will provide core information to develop a standard operating procedure (SOP) or standard operating guideline (SOG) that defines the expectations for responders. Such SOPs/SOGs must provide direction as well as address reasonable expectations for personnel both on and off duty.
Having comprehensive SOPs/SOGs that include not just operational protocols but also administrative and standards of conduct are essential to maintaining proper regiment and discipline. These guidance documents should reduce inconsistency in performance.
It is never enough to have a written SOP/SOG in place. A properly prepared SOP/SOG will create opportunities for training. Instructors need to incorporate SOPs/SOGs into training in order to highlight the procedures and expectations for performance. Each member of the department must be trained and the policy must be enforced in order for the department to be effective. In addition, such policies must be consistent with standard departmental practices and common principles of the emergency service profession as a whole.
You may think certain behaviors are common sense, and they may be. Nevertheless, having clear and concise guidance that personnel are adequately trained on will assure consistent performance that meets both community expectations and statutory requirements.
About the Author: Anthony S. Mangeri, MPA, CPM, CEM, has more than 25 years of experience in emergency management and public safety service. Currently, he is the Manager of Strategic Relations for Fire Services and Emergency Services and also a faculty member at American Military University and American Public University. He has been a volunteer firefighter and EMT for more than 25 years, earning the rank of Assistant Chief-Safety Officer. Mangeri earned a Master of Public Administration from Rutgers University and is a Certified Public Manager. He also serves on the Fire & Life Safety Council of the ASIS International.
The article written by MANGERI about ambulance responsibilities to DUTY TO ACT uses this 1980s Federal court ruling as THE STANDARD when in fact it was a singular stance just as in late 1800s a single court ruled CORPORATIONS ARE PEOPLE.
There is no doubt that the PRESIDENTS having been installed these few decades did indeed embrace the ENDING OF OUR US CONSTITUTIONAL, COMMON LAW, AND BILL OF RIGHTS saying THE GOVERNMENT DOES HAVE A DUTY TO ACT.
MANGERI with the AMERICAN MILITARY UNIVERSITY telling us this ONE FEDERAL CASE decided there is no DUTY TO ACT on Federal level. It was one Federal court case decision saying CORPORATIONS ARE PEOPLE that today's SUPREME COURT used as precedence in that ruling.
About the Author: Anthony S. Mangeri,
Currently, he is the Manager of Strategic Relations for Fire Services and Emergency Services and also a faculty member at American Military University and American Public University.
Legal Reality on Duty to Act
In 1981, the District of Columbia Court of Appeals ruled in Warren vs. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap., 1981).
The Court stated that it is a “fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual.”
This is why we have a MEME showing MUELLER FBI stating he has no DUTY TO ACT as representing the EXECUTIVE BRANCH of government. Then we have PELOSI saying she has no DUTY TO ACT as an elected legislative branch-----then we see TRUMP as PRESIDENT saying he is above the law-----there is nothing left to hold power accountable.
US STATES DO INDEED HAVE LOTS OF DUTY TO ACT tied to constitutions and statutes directed at PUBLIC OFFICIALS----they simply are not being enforced.
When a local police officer HARMS/KILLS in wrongful death a citizen and he/she is not held CRIMINALLY responsible----only a civil cash award given ----this is why.
This is 2005 Supreme Court ruling------NO DUTY TO ACT/PROTECT.
These SUPREME COURT rulings had to ignore several hundred years of US CONSTITUTIONAL AND COMMON LAW precedence saying the OPPOSITE.
Are 350 million US citizens bound forever to these few FEDERAL COURT CASE RULINGS? OF COURSE NOT----these rulings were done ILLEGALLY ignoring court precedence --ignoring our US court ties to COMMON LAW PRECEDENCE ----to MOVE FORWARD this ending of DUTY TO ACT.
Today, we see some attempts to PRETEND our elected officials intend to keep this DUTY TO ACT or that DUTY TO ACT in place ---when of course NONE of these CIVIL RIGHTS/BILLS OF RIGHTS /I AM MAN AGE OF ENLIGHTENMENT-----RIGHTS to government protection will exist.
Archives | 2005Justices Rule Police Do Not Have a Constitutional Duty to Protect SomeoneBy LINDA GREENHOUSEJUNE 28, 2005
WASHINGTON, June 27 - The Supreme Court ruled on Monday that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.
The decision, with an opinion by Justice Antonin Scalia and dissents from Justices John Paul Stevens and Ruth Bader Ginsburg, overturned a ruling by a federal appeals court in Colorado. The appeals court had permitted a lawsuit to proceed against a Colorado town, Castle Rock, for the failure of the police to respond to a woman's pleas for help after her estranged husband violated a protective order by kidnapping their three young daughters, whom he eventually killed.
For hours on the night of June 22, 1999, Jessica Gonzales tried to get the Castle Rock police to find and arrest her estranged husband, Simon Gonzales, who was under a court order to stay 100 yards away from the house. He had taken the children, ages 7, 9 and 10, as they played outside, and he later called his wife to tell her that he had the girls at an amusement park in Denver.
Ms. Gonzales conveyed the information to the police, but they failed to act before Mr. Gonzales arrived at the police station hours later, firing a gun, with the bodies of the girls in the back of his truck. The police killed him at the scene.
The theory of the lawsuit Ms. Gonzales filed in federal district court in Denver was that Colorado law had given her an enforceable right to protection by instructing the police, on the court order, that "you shall arrest" or issue a warrant for the arrest of a violator. She argued that the order gave her a "property interest" within the meaning of the 14th Amendment's due process guarantee, which prohibits the deprivation of property without due process.
The district court and a panel of the United States Court of Appeals for the 10th Circuit dismissed the suit, but the full appeals court reinstated it and the town appealed. The Supreme Court's precedents made the appellate ruling a challenging one for Ms. Gonzales and her lawyers to sustain.
A 1989 decision, DeShaney v. Winnebago County, held that the failure by county social service workers to protect a young boy from a beating by his father did not breach any substantive constitutional duty. By framing her case as one of process rather than substance, Ms. Gonzales and her lawyers hoped to find a way around that precedent.
But the majority on Monday saw little difference between the earlier case and this one, Castle Rock v. Gonzales, No. 04-278. Ms. Gonzales did not have a "property interest" in enforcing the restraining order, Justice Scalia said, adding that "such a right would not, of course, resemble any traditional conception of property."
Although the protective order did mandate an arrest, or an arrest warrant, in so many words, Justice Scalia said, "a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes."
But Justices Stevens and Ginsburg, in their dissenting opinion, said "it is clear that the elimination of police discretion was integral to Colorado and its fellow states' solution to the problem of underenforcement in domestic violence cases." Colorado was one of two dozen states that, in response to increased attention to the problem of domestic violence during the 1990's, made arrest mandatory for violating protective orders.
"The court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for understanding Colorado's law," the dissenting justices said.
Organizations concerned with domestic violence had watched the case closely and expressed disappointment at the outcome. Fernando LaGuarda, counsel for the National Network to End Domestic Violence, said in a statement that Congress and the states should now act to give greater protection.
In another ruling on Monday, the court rebuked the United States Court of Appeals for the Sixth Circuit, in Cincinnati, for having reopened a death penalty appeal, on the basis of newly discovered evidence, after the ruling had become final.
The 5-to-4 decision, Bell v. Thompson, No. 04-514, came in response to an appeal by the State of Tennessee after the Sixth Circuit removed a convicted murderer, Gregory Thompson, from the state's death row.
After his conviction and the failure of his appeals in state court, Mr. Thompson, with new lawyers, had gone to federal district court seeking a writ of habeas corpus on the ground that his initial lawyers had been constitutionally inadequate. The new lawyers obtained a consultation with a psychologist, who diagnosed Mr. Thompson as schizophrenic.
But the psychologist's report was not included in the file of the habeas corpus petition in district court, which denied the petition. It was not until the Sixth Circuit and then the Supreme Court had also denied his petition, making the case final, that the Sixth Circuit reopened the case, finding that the report was crucial evidence that should have been considered.
In overturning that ruling in an opinion by Justice Anthony M. Kennedy, the majority said the appeals court had abused its discretion in an "extraordinary departure from standard appellate procedures." Chief Justice William H. Rehnquist and Justices Scalia, Clarence Thomas and Sandra Day O'Connor joined the opinion.
In a dissenting opinion, Justice Stephen G. Breyer said the majority had relied on rules to the exclusion of justice. Judges need a "degree of discretion, thereby providing oil for the rule-based gears," he said. Justices Stevens, Ginsburg and David H. Souter joined the dissent.
When a FEDERAL COURT in late 1800s ruled CORPORATIONS ARE PEOPLE-----that did not set a COURT PRECEDENCE. The US continued for over hundred years holding corporations accountable---FDR created tons of corporate regulations shouting loudly CORPORATIONS ARE NOT PEOPLE.
Today, we have these few decades of CLINTON/BUSH/OBAMA appointing neo-liberal/neo-con SUPREME COURT justices who they know will rule by government having NO DUTY TO ACT.
ONE OR TWO SUPREME COURT RULING DOES NOT PRECEDENCE MAKE.
The US has 50 states all with courts ruling according to state constitutions and statutes having not had time to place this SUPREME COURT decision in 2005 in place. Nor has FEDERAL COURT JUDGES been forced to rule in this direction as court precedence has NOT BEEN SET.
'How do U.S. Supreme Court rulings set the precedence for future decisions of courts of law?
The Supreme Court’s Rulings are contained within Judicial Opinions setting forth the Court’s reasoning. The Opinion provides guidance to future Courts re how to interpret the legislation which was made subject of the Supreme Court’s Ruling. Since the Supreme Court is the highest court in the land, its decisions will set the most robust precedence. For this reason, a lower court ffmay delay ruling on a case if a similar case is being heard by Supreme Court'.
When NOSY NEIGHBORS AND THE GANG for example claim I will not get justice from these CRIMINAL ACTIVITIES against me----this is what they are thinking---they think courts as local police will see NO DUTY TO ACTION on cases like mine.
THAT WOULD BE FAKE NEWS-----FAKE DATA AS COURTS ACROSS THE US DO RULE IN FAVOR OF SEXUAL ASSAULT AND RAPE VICTIMS.
'Archives | 2005
Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone
By LINDA GREENHOUSEJUNE 28, 2005'
This will be the same for today's SUPREME COURT ruling on ROE V WADE for example. ONE COURT RULING does not PRECEDENCE make.
The Supreme Court is smashing precedents. But Roe v. Wade might still be saved.The Ninth Amendment offers some hope as Justice Stephen Breyer rightly warns that reproductive rights are at risk.
May 15, 2019, 4:23 AM EDT
By Laurence H. Tribe, professor of constitutional lawThe Supreme Court this week held that a state may not be sued in the courts of another state. Ordinarily, the public would take little note of a decision so technical and procedural. Aside from specialized groups of lawyers and academics, it would’ve drawn a yawn.
Instead, the opinion, Franchise Tax Board of California v. Hyatt, sparked a media firestorm suggesting the decision could have major implications for several lightning-rod issues, particularly abortion, and set a new standard for the depths of partisanship to which the Supreme Court has sunk. These fears are well-founded, but somewhat premature — the worst reverberations of this decision may well be mitigated if the dissenting justices act wisely.
The Roberts Court has increasingly tended to treat long-established precedent as entitled to no special respect.
What made Hyatt so noteworthy was that the court had resolved the same issue the other way in a 6-3 vote 40 years ago in Nevada v. Hall. Monday’s vote was 5-4. Justice Clarence Thomas, joined by the court’s four other conservatives, wrote for the majority that Nevada v. Hallwas wrongly decided and should thus be overruled.
Justice Stephen Breyer, joined by the court’s three other liberals, dissented, voicing dismay that only a change of court personnel seemed to explain the change in result. He pointedly noted the danger of “overrul[ing] a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question.”
All five of the majority justices in Hyatt were appointed by Republican presidents and have typically been described as ideologically conservative, while all four dissenters were appointed by Democratic presidents and are typically regarded as ideologically liberal.
But the Hyatt case itself addressed a question few would likely deem either partisan or ideological, politically or culturally. The fact that the court nonetheless split along both ideological and partisan lines, and that those lines overlapped perfectly, is noteworthy precisely because the issue at the heart of the case is about as dryly technical and nonideological as legal issues are prone to get.
If Roe v. Wade dies, there will be nothing left to unite the Republican PartyJuly 26, 201802:45The message thus sent by the court’s split was that the judiciary is now so deeply divided along political lines that the stand-off tends to persist even when the issues would seem to make the difference in perspective predictively irrelevant. Notably, no such polarization was evident in the original case, Hall, which Hyatt overruled.
To be sure, constitutional precedents have in theory been subject to being overruled more readily than precedents involving only statutory interpretation, because constitutional precedents cannot be legislatively overruled but can be jettisoned only by the much more onerous process of amending the Constitution. Yet it remains the case that respect for precedent and the stability such respect makes possible creates a strong presumption against overruling — a presumption clearly not operative in Hyatt. So what happened?
In fact, what’s happened is that the Roberts Court has increasingly tended to treat long-established precedent as entitled to no special respect. But no prior decision has tossed settled precedent overboard quite so casually as Hyatt.
In the landmark 2018 union dues case Janus v. American Federation of State, County, and Municipal Employees, for instance, the conservative majority at least sought to explain why it deemed unworkable the line-drawing in the 1977 decision that Janus overruled. The majority also identified subsequent factual and legal developments that it claimed “eroded” the older decision’s “underpinnings,” making it an “anomaly” in the court’s First Amendment jurisprudence that warranted a new decision bringing the treatment of union dues more in line with this body of law.
Justice Elena Kagan, joined in dissent by the three other liberal justices, punctured those claims forcefully. But at least the majority made an earnest effort to justify its departure from precedent by more than the naked fact — to put it bluntly — that elections have consequences.
None of these standard criteria for overruling a constitutional precedent — evident unworkability, emerging inconsistency with surrounding doctrine, new understandings of old facts, changed social or legal perspectives — were even arguably present in Hyatt, where the overruling majority devoted but a few breezy paragraphs to explaining why the criteria had supposedly been met.
GOVERNMENT DUTY TO ACT ----------is enshrined in our US Constitution----common law----Bill of Rights AND is found in most state constitutions. The government DOES have a DUTY TO ACT------there is no blanket IMMUNITY for public officials just because our government agencies have been OUTSOURCED to private businesses which are then allowed to go wild with MASSIVE FRAUDS during CLINTON/BUSH/OBAMA ROBBER BARON few decades.
JFK was raging global banking 1% OLD WORLD KINGS---KNIGHTS OF MALTA-------taking that first step to bringing the US to colonial status for those OLD WORLD KINGS by creating a MANTRA ---saying---PEOPLE DO NOT EXPECT RIGHTS AND PROTECTIONS FROM THEIR GOVERNMENT----you know, as it was back in DARK AGES-----before all that MAGNA CARTA-----AGE OF ENLIGHTENMENT stuff.
We don't believe even 99% of REAL JEWISH AND CATHOLIC citizens want DARK AGES ABSOLUTE MONARCHY tied to OLD WORLD KINGS KNIGHTS OF MALTA---TRIBE OF JUDAH.
We can think these PRESIDENTS are glamorous---but we do not have to think of them as POPULIST or FOR THE PEOPLE.
JFK- Ask Not What Your Country Can Do For You
Published on Jun 25, 2010
JFK's famous words that inspired and formed me. "And so, my fellow Americans: ask not what your country can do for you - ask what you can do for your country. " excerpt from JFK's Inaugural Speech, Jan 20, 1961
If one does not support and fight for GOVERNMENT DUTY TO ACT for one kind of PERSONAL RIGHT---one loses all protections in GOVERNMENT DUTY TO ACT. PROPERTY is the #1 COMMON LAW right for several centuries.
LawSupreme Court Overturns Precedent In Property Rights Case — A Sign Of Things To Come?
June 22, 20197:00 AM ET
The justices of the U.S. Supreme Court decided a property rights case that overturned decades of precedent.
Eric Baradat/AFP/Getty Images A sharply divided U.S. Supreme Court ruled Friday that property owners can go directly to federal court with claims that state and local regulations effectively deprive landowners of the use of their property.
The 5-4 decision overturned decades of precedent that barred property owners from going to federal court until their claims had been denied in state court.
Federal courts are often viewed as friendlier than state courts for such property claims. The decision, with all five of the court's conservatives in the majority, may have particular effects in cities and coastal areas that have strict regulations for development.
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Property owners and developers often have complained that zoning rules and other state and local regulations effectively take their property for public benefit, and that the Constitution requires that they be paid just compensation.
The court's decision came in the case of Rose Mary Knick, who owns 90 acres of land in Scott Township, Pa. Knick's home and a grazing area for her horses are on the land, as well as a small cemetery where her neighbors' ancestors are allegedly buried.
When the town enacted a rule requiring all cemeteries be open to the public during daytime hours, Knick went to state court seeking a judgment that the state had in effect taken her property. When the town withdrew its notice that she was violating the local cemetery law, the state court said Knick could not prove that she was being harmed.
So, she went to the federal courts, which threw out her case based on decades-old Supreme Court decisions that have consistently required property owners to go to the state courts before appealing to the federal courts.
On Friday, however, the U.S. Supreme Court reversed the first of those decisions, a 1985 ruling that required property owners to take their complaints to the state courts first. Instead, the court majority said Knick and other property owners seeking compensation for limits on their property rights may go directly to federal court.
"We now conclude that the state litigation requirement imposes an unjustifiable burden" on a property owner's claim that his or her land has been effectively taken for public benefit without the government paying just compensation, wrote Chief Justice John Roberts.
In essence, Roberts said, property owners are entitled to the same rights in federal court that other citizens have if they can prove that their constitutional rights have been violated.
Justice Elena Kagan, joined by the court's three other liberal justices, dissented in furious tones. Friday's decision, she said, "rejects far more than a single decision in 1985." That decision, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, "was rooted in an understanding of the Fifth Amendment's Takings Clause stretching back to the late 1800s, Kagan wrote.
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On that view, a government could take property so long as it provided a reliable mechanism to pay just compensation, even if the payment came after the fact," Kagan said, adding, "No longer."
In conflict with "precedent after precedent," she said, the majority holds that a government violates the Constitution whenever it takes property without advance compensation, no matter how good its commitment to pay. The consequence, she added, is "to channel a mass of quintessentially local cases involving complex state-law issues into federal courts."
The "entire idea" of abiding by precedent, she said, is that "judges do not get to reverse a decision just because they never liked it in the first instance." Rather, she said, they need a reason other than that the precedent was wrongly decided.
"It is hard to overstate the value, in a country like ours, of stability in law," said Kagan, pointing so a similar observation by one of her colleagues just weeks ago.
On May 13, Justice Stephen Breyer chastised his conservative colleagues for reversing a precedent on a question that rarely arises: "Today's decision can only cause one to wonder which cases the Court will overrule next."
"Well that didn't take long," opined a caustic Kagan. "Now one may wonder yet again."
Several centuries of COMMON LAW tied to MAGNA CARTA is how all 99% WE THE PEOPLE have property rights. DUTY TO ACT by government is the only thing assuring those PROPERTY RIGHTS. MOVING FORWARD ending government DUTY TO ACT to protect rights include PROPERTY RIGHTS---
Well, that is after all the goal MOVING FORWARD of US FOREIGN ECONOMIC ZONES like Baltimore filling with GLOBAL CORPORATE CAMPUSES AND GLOBAL FACTORIES with the ONLY HOUSING available being WORKER DORMITORIES owned by those global corporations. There will be no property ownership by any 99% ----new to US immigrant same as today's US CITIZENS in rights.
SHE CANNOT OWN THAT BUILDING--SHE IS NOT 'US' ----SHE IS 'THEM'-----SAYS NOSY NEIGHBORS AND THE GANG-----WHO WILL NOT BE ABLE TO OWN PROPERTY EITHER AS THEY ARE THROWN UNDER THE BUS.
Government's DUTY TO ACT to protect is necessary for PROPERTY RIGHTS----losing this will affect all avenues of life.
Below we see FAKE NEWS propaganda and myth-making ----pretending that LAISSEZ FAIRE/NEO-LIBERALS are behind our 99% OF WE THE PEOPLE'S property rights ----von MISES-----HAYEK----NOZICK are all global banking 1% interested only in MAGNA CARTA protecting property rights of NOBLES--------they do not care about I AM MAN----COMMON LAW property rights.
People thinking they are falling into a NOBILITY category-----need to think twice---MAGNA CARTA is on its way out as well.
The Power of Property Rights
Published on Mar 4, 2011
Why are property rights important, even for those who own the least?
Professor Tom W. Bell of Chapman University School of Law explains that property rights allow people to live together in peace, prosperity, and freedom. They prevent conflicts over scarce resources, encourage productive labor, and discourage waste. Bell bolsters his argument by drawing on classical liberal scholars such as Friedrich Hayek, Randy Barnett, Robert Nozick, and Ludwig von Mises.
7. Property RightsThe common law and private property
7.1 The common law has long regarded a person’s property rights as fundamental.
William Blackstone said in 1773: ‘There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property’.
In the national consultation on ‘Rights and Responsibilities’, conducted by the Australian Human Rights Commission (AHRC) in 2014, ‘property rights’ was one of the four areas identified as being of key concern.