Pg 25

Question 1

If an individual is harmed by police activities, can there be a due process claim?

Answer 1

Not if the police only acted negligently. The middle range is something more than negligence but not intentional conduct [recklessness or gross negligence]. Intentional infliction of injury to people or property is a violation

Question 2

If a state has a law that mandates that police take action to protect individuals under certain circumstances, then that gives a person an entitlement that is protected by what?

Answer 2

Both substantive due process and procedural due process

Question 3

If a state law mandates that police take action to protect individuals under certain circumstances, what is necessary under procedural due process for the police to do?

Answer 3

The police must give serious consideration to the plaintiff’s request for help. If they arbitrarily deny protection, that deprives the plaintive of a life or property interest.

Ie: women that had a restraining order on her husband, and he kidnapped the kids, and she asked the police for help but they did nothing, and the husband killed the kids. The restraining order did not create a property interest and the decision to enforce the order was within the discretion of the police. Plaintiff had no entitlement to enforcement of the order

Question 4

What is the difference between the equal protection clause and the due process clause?

Answer 4

– equal protection clause: governs the classification of people for benefits or burdens by the government. This only applies to state and local governments
– due process clause: restricts the federal government’s ability to classify people

Question 5

What are the two major tests that are applied to substantive due process?

Answer 5

– Rational basis test

– strict scrutiny test

Question 6

What is the rational basis test under substantive due process?

Answer 6

This is for non-fundamental rights. It is used when the government has:

1. A legitimate or compelling reason to regulate the populace, such as protecting health or safety
2. When the regulation doesn’t implicate a fundamental right
3. And the government has a legitimate interest and the regulation is rationally related to that interest

Question 7

When do you apply the rational basis test versus the strict scrutiny test under substantive due process?

Answer 7

– Rational basis: non-fundamental rights test

– strict scrutiny: fundamental rights test

Question 8

Who has the burden of proof under the rational basis test for substantive due process?

Answer 8

The plaintiff

Question 9

Does the rational basis test lean more toward the plaintiff or the government under substantive due process?

Answer 9

It is easy for the government to win (lenient on the government and hard on plaintiffs). There’s a presumption that any law that passes through the legislative process is constitutional, and the plaintiff has the burden to overcome this by showing there is no rational basis for the law

The plaintiff loses if the court has even the slightest rational reason. It is an insurmountable level of proof for the plaintiff

Question 10

If a plaintiff challenges a law for violation of due process, where do you begin?

Answer 10

Begin by presuming the law’s validity, and then the plaintiff must show that the law is completely baseless for anything resembling a true reason. AKA: that it is totally arbitrary or capricious

Question 11

What does the government need to have under the rational basis test for a law to be meet substantive due process?

Answer 11

There must be a legitimate reason. The state can use whatever economic policy is reasonable to promote public welfare.

Ie: milk price controls during the dirty 30s

Question 12

What is involved in the strict scrutiny test under substantive due process?

Answer 12

This happens when government action impinges on fundamental rights, and the government needs:
– a compelling reason
– and the actions must be narrowly tailored to fit it
– by the least restrictive means possible

Question 13

Who has the burden of proof for the strict scrutiny test under substantive due process?

Answer 13

The government. Although this is an insurmountable level of proof for the government, so it is hard for them to show it

Question 14

Who has the burden of proof under the rational basis test and who has the burden of proof under the strict scrutiny test for substantive due process?

Answer 14

– Rational basis test: the burden is on the plaintiff

– strict scrutiny test: the burden is on the government

Question 15

What is considered to be a fundamental right under substantive due process?

Answer 15

• the right to privacy, which includes intimate activities: whether to have kids, make decisions about relationships, use contraceptives, freedom of choice about personal life, marital decision, childbearing and rearing, etc.
  – write a contract
  – right to travel/personal mobility
  – freedom of association
  – right to vote and participate in the electoral process
  – procedural due process
  – abortion
  – sodomy
  – rights in the bill of rights and the penumbras created by the Bill of Rights
  – fairness in the criminal process
  – right to refuse life-sustaining medical treatment

Question 16

What are factors you should consider if you are deciding if a right is fundamental under substantive due process?

Answer 16

The nature of the interest at stake, the importance of the interest to the individual for his own personal liberty, the importance to current society, history/ traditions/custom

Question 17

How do you approach substantive due process on an essay?

Answer 17

– Is a fundamental right involved?
– Does the government action infringe on that right?
– Is the government action supported by a sufficient basis or reason?
• fundamental rights: strict scrutiny
• non-fundamental rights: rational basis
– are the means of the government action sufficiently related to the interest?

Question 18

What is procedural due process?

Answer 18

Before the government can take an action that invades or impairs a person’s life, liberty, or property interest, he must be given notice and an opportunity to be heard by a relevant government agency. This means there must be a process behind the decision and fairness to the process. This is for issues that involve the decision-making process itself (looks at the adequacy of government procedures)

Question 19

What kind of things does procedural due process not apply to?

Answer 19

• General actions of the legislature through the lawmaking process (PDP only applies to actions that affect specific individuals)

Ie: unemployment insurance is an entitlement and if the government decides to do away with it, there is no due process requirement except the regular legislative process. But if the gov denies the plaintiff unemployment insurance, even if he is eligible, that is an action against the plaintiff individually, so then due process does apply, and if it is not followed, the plaintiff has a claim if he can show he had a life, liberty, or property interest that was adversely affected by government action

Question 20

How do you know if someone has a property interest in a benefit under procedural due process?

Answer 20

The plaintiff must have a legitimate claim of entitlement to the thing. If officials have discretion about whether to grant or deny a benefit, it is not a protected entitlement. The plaintiff needs more than an abstract need or desire or expectation in a thing, he needs a legitimate claim of entitlement to it that is created by existing rules that stem from an independent source of state law