Individual rights- procedural due process

Question 1

Define procedural due process

Answer 1

Procedures the gov must follow when it takes away a person’s life liberty or property. Usually about notice or hearing the government must provide.

Question 2

What question do you ask for due process?

Answer 2

Has there been a deprivation of life, liberty, or property?

Question 3

In what 2 ways can a deprivation of liberty occur?

Answer 3

1. A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute
2. A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.

Question 4

Is government negligence sufficient for a deprivation of due process?

Answer 4

No, government negligence is not sufficient for a deprivation of due process.

Question 5

What is needed for a deprivation of due process?

Answer 5

Generally, there must be intentional government action or at least reckless action for liability to exist.

Question 6

Can there be a deprivation of due process by the government in an emergency?

Answer 6

Yes, in emergency situations, the government is liable under due process only if its conduct “shocks the conscience.”

Question 7

Does the government’s failure to protect people from privately inflicted harms deny due process?

Answer 7

Generally no, the government’s failure to protect people from privately inflicted harms does not deny due process

Question 8

When can the government’s failure to protect people from privately inflicted harms deny due process?

Answer 8

ONLY if the government created the danger or if they are in custody does the government have a duty to provide protection.

Question 9

What is the test for what kind of procedural due process is needed?

Answer 9

The test is to balance the following factors:

i) The importance of the interest to the individual
ii) The ability of additional procedures to increase the accuracy of the fact-finding
iii) The government’s interests

Question 10

What is the government’s interest usually in a procedural due process balancing test?

Answer 10

Gov’s interest is usually an efficiency in saving money

Question 11

Before a person’s welfare benefits can be terminated what must the government provide?

Answer 11

there must be notice and a hearing.

Question 12

When social security/disability benefits are terminated what must the government provide?

Answer 12

there only has to be a post termination hearing.

Question 13

When a student is disciplined by a public school what must the school (government) provide?

Answer 13

there must be notice of the charges and an opportunity to explain. (no trial hearing needed)

Question 14

When there is corporal punishment (eg spanking) in schools what must the school (government) provide?

Answer 14

does not need any due process

Question 15

When a parents rights to custody of a child is going to be permanently terminated what does the government need to provide?

Answer 15

there must be notice and a hearing.

Question 16

What is needed if there is punitive damages in a case? What if punitive damages are grossly excessive

Answer 16

Punitive damages require instructions to a jury and judicial review. Grossly excessive punitive damages violate due process (BMW v Gore)

Question 17

An American citizen is held as an enemy combatant, what must the government provide him?

Answer 17

must be given due process (Hamdi)

Question 18

What are exigent circumstances?

Answer 18

• the reason to believe that the person would get rid of evidence,

Question 19

What must the government provide if it seizes property (evidence) under exigent circumstances?

Answer 19

notice and hearing are required after seizure.

Question 20

Can the government seize illegal property if the owner is innocent?

Answer 20

Yes, the government may seize property if it is involved in an illegal activity, even if it has an innocent owner.

Question 21

If there is going to be prejudgment attachment of assets what must the government provide?

Answer 21

must be preceded by notice and a hearing.

Question 22

If there is going to be government seizure of assets (without exigent circumstances) what must the government provide?

Answer 22

must be preceded by notice and a hearing.

Question 23

Before an adult can be institutionalized what must the government provide?

Answer 23

there must be notice and a hearing.

Question 24

When a parent institutionalizes a child what must the government provide? Why?

Answer 24

When a parent institutionalizes a child there only has to be a screening by a neutral fact finder (SC assumes that parent acts in best interest of child).

Question 25

If a prisoner sues for loss of liberty what is the result of the case?

Answer 25

they must always lose (prisoners rarely have a liberty interest)

Question 26

Is harm to reputation a loss of liberty?

Answer 26

Harm to reputation by itself is not a loss of liberty.

Question 27

If person has reasonable expectation (entitlement) in property and the government is taking that away what must the government provide him?

Answer 27

they need to be given due process (notice and hearing.

Question 28

Prisoner slips on a prison step where a pillow had been left and is injured badly. Has there been a deprivation of due process due to government inaction to maintain the prison? Why or why not?

Answer 28

No, Negligence by government is not enough to constitute government action. Therefore there has been no deprivation of procedural due process.

Question 29

Mita, a 4 year old boy was beaten by father so bad he lost brain function, social services knew that he was abused physically by his father but he was left in his custody. Mita’s new guardian sued the government for not protecting Mita saying the government’s inaction took away his liberty.
Has there been a deprivation of liberty? Why or why not?

Answer 29

No, The government does not have duty to provide protection.