Individual Liberties Flashcards
Procedural Due Process
Procedures necessary for the gov to follow to take away someones life liberty or property.
Ask two questions:
1) Has there been a deprivation of life liberty or property?
2) If there has been a deprivation, ask, what procedures are required?
Has there been a deprivation of life, liberty or property? (procedural due process)
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Defined:
- deprivation of liberty occurs if there is the loss of significant freedom provided by the Constitution or statute
- Deprivation of Property: an entitlement (a reasonable expectation to the continued receipt of a benefit) and that entitlement is not fufilled
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Intentional Action:
- Government negligence is insufficient
- Must be an INTENTIONAL GOVERNMENT ACTION or at least RECKLESS ACTION for liability to exist
- EMERGENCY SITUATIONS : government liabile only if its conduct shocks the concious
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Failure to Protect
- failure to protect people from privately inflicted harms does not deny due process (e.g. kid with abusive father unless gov created risk)
What procedures are required if there has been a deprivation?
(PDP)
3 Part balancing test:
- Importance of the Interest to the Person: the more important the interest is to the person, the more procedural protection required.
- Additional Procedures: would more additional procedures lead to better and more accurate decisions and reduced erroneous deprivation. AND
- Effeciency: governments interest in saving money and time for the government.
Examples for PDP
- Welfare Benefits: termination requires both notice and hearing
- Permanent termination of parent’s right of custdy: notice and a hearing
- Institutionalization of adult in non-emergency situation: notice and a hearing
- _SS Disability Benefits Terminatio_n: post-termination hearing
- Harm to reputation: Not a loss of liberty
- Prisoners: rarely given liberty interests–usually always lose on these grounds
- Punitive Damage awards: jury’s instructions to guide its discreation and judicial review to ensure resaonable award.
- Enemy Combatant non-citizen: ability to challenge continued detention
- Citizen facing charges in foreign country held by american military: habeas corpus petition seeking review of detention in federal court
- Recusal of Judge: requies if there is a substantial risk of actual bias
Substantive Due Porcess
Whether the government has an adequate reason for taking away a person’s life, liberty or property.
usually confined to economic liberties and safeguarding property
Economic Liberties
- Minimal protection for economic liberties
- Use a rational basis test for laws affecting economic rights
- Takings clause
- Contracts Clause
Takings Clause
- 5th Amendment
- Government may take private property for public use but only if it provides
- just compensation OR
- termatinates regulataoin and pas the owenrdamages that were incurred while the regulation was in effect (temporary takings)
Test to evaluate a taking
- Is there a taking?
- possessory
- regulatory
- Is it for public use?
- Is just compensation paid?
Is there a taking?
- Possessory Taking: Government confiscation or physical occupation of property is always a taking
- _Regulatory Takin_g: Government regulation is a taking if it leaves no reasonably economically viable use of the property
- Notes:
- Proportionality: Government conditions on the development of property must be justified by a benefit that is roughly proportionate to the burden impose or it is a taking.
- Takings Challenge: may bring challenge to regulation that existed at the time the property was acquired
- Temporary use: temporary denying an owner’s use of property (e.g. development of land) is not a taking as long as the action was reasonable
Is it for public use?
Taking is for public use so long as the government acts out of a reasonable belief that the taking benefits the public.
Is just compensation paid?
Measured in terms of loss to the owner in reasonable market terms
Gain to the government is irrelevant
Contracts Clause
- Article I, Sec. 10
- No state shal impair the obligations of contracts
- Applies only to state or local interference with already existing contracts
Contracts clause: when may state and local governments intfere with contracts
- must meet intermediate scrutiny:
- Does the legilsation substantially impair a party’s rights under an existing contract?
- If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
Contracts Clause: when may a state or local interfere with government contracts
Must meet strict scrutiny.
Ex Post Facto
- Neither federal or state governments can adopt ex post facto rules.
- Does not apply in civil cases. ONLY CRIMINAL