Violation Of Due Process Research Articles

Mandatory arrest? Police response to domestic violence victims

PurposeThe purpose of this paper is to explore lawsuits involving police response to domestic violence incidents. Focusing on the specific legal remedy of due process under Section 1983, the paper seeks to examine federal case law dealing with police response to domestic violence victims. The paper also aims to discuss differences in procedural and substantive due process violations, highlighting circumstances under which the police may be held liable for improper response to domestic violence incidents.Design/methodology/approachThis paper qualitatively examines relevant Section 1983 federal court decisions (n=27 as of May, 2008) identified through a query of Lexis Nexis for the last ten years (before and after Castle Rock) dealing with lawsuits arising from domestic abuse investigations.FindingsThe preponderance of cases have resulted in dismissals of summary judgments filed against police officers and agencies for allegations that the police violated plaintiffs' due process rights. The recent Supreme Court decision inTown of Castle Rockv.Gonzaleshas prevented plaintiffs from seeking relief under procedural due process; however, domestic abuse victims have been successful to some extent using substantive due process as a basis for civil action. Plaintiffs have prevailed in federal courts alleging that the police acted with deliberate indifference or conscious disregard for victims' civil rights.Research limitations/implicationsThe paper is limited to federal court decisions involving due process violations and does not account for factors resulting in state tort negligence lawsuits filed against the police. Moreover, federal courts will likely continue to use substantive due process as a Section 1983 remedy for domestic violence victims as research and awareness on domestic violence policy evolves.Practical implicationsThe paper suggests that police agencies should take note of recent court decisions applicable to their jurisdictions as domestic violence enforcement policy remains fragmented. Agencies should ensure that police dispatcher 911 call classification policies are current and that training guidelines comport with these policies.Originality/valueGiven the prevalence of domestic violence in the USA, police agencies should expect increases in the number of lawsuits filed against the police for violations of substantive due process.

A Problem with Memorandum Decisions

A memorandum decision has been given two roles in our legal system. The first role is that it is used in a dispositive manner to a case which has mainly factual issues which is to be unpublished. The last role is that it is employed in an non-dispositive manner to a case which has primarily legal issues which is to be published. As it stands now, there is the possibility of a memorandum decision being used in a case with legal issues which is to be published, in a dispositive manner. Such a use would be a violation of due process since the decision would lack the reasons, that is; the legal authority justifying the ruling. It would be an arbitrary and capricious action.

Much Ado about a C?

FROM kindergarten through grade 8, Brandy H. was an honor roll student at Island Union School District, which is in central California. She received numerous awards for both her academic and athletic performance. In the fourth quarter of grade 7, which was in spring 2003, Brandy and three other girls each received a C in physical education, or PE, which focused on track and field events. Brandy and another girl in the group were African American; the other two were white. As stated on the report cards, the grades in Island Union's PE classes are based on effort and attitude only, not athletic ability. Thus they are not included in the calculation of a student's grade-point average for placement on the honor roll. The four girls' PE teacher, Julie Hansen, was a long-term sub who also taught sixth grade and was one of the track coaches. Brandy's parents had observed various track practices and meets, which were part of the PE grade and had yielded only positive feedback. On 10 July 2003, Brandy's father sent a letter to the superintendent complaining about the C in PE and adding that in a conversation with the assistant track coach, which the assistant had reported to him, Hansen had referred to the four girls as bitches and stated that she wanted to wring their necks. The superintendent tried to reach Hansen, but she was away on summer vacation. He did speak to other PE teachers to find out what they knew about the situation. On July 24, he sent Brandy's father a reply, explaining that the reason for the C grade was insufficient effort and attitude during PE class and confirming that Hansen had apparently made the alleged statements. On August 8, the superintendent received a letter from attorney Kevin Little on behalf of Brandy's parents and sent it to the school district's legal counsel for a response. On August 20, the district's legal counsel sent a letter to attorney Little inviting him to contact her if he had any questions or additional information. The parents did not contact her further, directly or via their attorney. They also did not resort to the California statutory procedures for a parent to request a grade change, which include an appeal to the school board and, thereafter, the right to judicial review in state court. Instead, on 24 April 2004, Brandy's parents filed suit in federal court against Hansen and the superintendent, alleging that the PE grade constituted unfairness, in violation of 14th Amendment substantive due process, and racial discrimination, in violation of the 14th Amendment equal protection clause. They sought money damages and a corrected grade that truly reflects her performance in the track and field class. On 28 April 2005, the federal district court granted the defendants' motion for summary judgment, meaning a decision in their favor without a trial.(1) The judge rejected the substantive due process claim for two reasons. First, the magistrate judge distinguished the Supreme Court's pertinent substantive due process decisions as arising from academic dismissals, not grades in a particular course, much less a seventh-grade PE class that is not even part of the student's GPA.(2) He reasoned: At best, the Supreme Court has recognized a fundamental right to an education, nothing more. Second, the magistrate judge cited precedent in the Ninth Circuit that negates substantive due process claims based on deprivation of a state-created property interest and not a separate constitutional violation, where state law remedies are adequate. He concluded that California's statutory procedures for correcting student records are obviously adequate to address such fairness challenges. As for the equal protection claim, the court pointed to precedents that require specific facts showing intentional racial discrimination and concluded that the parents' arguments failed to meet this threshold standard. While asserting that Brandy was consistently cooperative and diligent and that Hansen never gave her any indication otherwise, the parents largely relied on simple statistics and Hansen's statements. …

Blowing the Lid Off: Expanding the Due Process Clause to Defend the Defenseless Against Hurricane Katrina

This paper advocates an expanded reading of the Due Process Clause of the Fourteenth Amendment to include affirmative obligations to act. Specifically, this paper considers the government's failure to act during the threat of Hurricane Katrina a valid cause of action under a Section 1983 Civil Rights suit. State officials, local officials, and local government must be held accountable for their monumental failures during the storm. The government's mistreatment of its most vulnerable citizens-the poor, the elderly, and the sick-may constitute a due process violation under one of the exceptions to the no-duty rule generally imposed on the Due Process Clause of the Fourteenth Amendment. A "more perfect Union" must act on its duties- both negative and affirmative-to protect the powerless against harm. Part II of this paper will provide a brief introduction to Section 1983 litigation, examining possible defendants and the type of relief available. Part III will discuss Fourteenth Amendment violations supported by two exceptions to the no-duty rule under DeShaney: the state- created danger rule and the special relationship exception. This part of the paper will also examine the government's failures leading up to the Katrina debacle in light of the two exceptions, arguing that either could be used to make the state and local officials liable under a due process claim. Finally, this paper will conclude with a look ahead at government's response to the constant threat of hurricanes and whether anything has been learned from the events surrounding Hurricane Katrina.

Why Children Still Need a Lawyer

Every day approximately 500,000 children across the United States wake up in foster care, most in foster family homes, though many others in group homes and institutions. These children entered the state foster care system as innocent victims of abuse or neglect occurring in their birth homes. As wards of the state, they depend completely on the government to provide for their essential safety and wellbeing and to reconnect them with a permanent family, hopefully their own. Though state child welfare agencies possess fundamental legal obligations under the United States Constitution and federal and state statutes to provide adequate care to all children in foster care, they are all too often failing in this vital mission. High caseloads, insufficient caseworker training and compensation, a combination of unstable and ineffective agency management, and a lack of resources plague foster care systems from coast to coast. As a result, children who were removed from their homes for basic protection actually suffer continuing harm in state care. The federal government has sought to improve the performance of state foster care systems through legislative reforms that have subjected these systems to the oversight of family court judges and federal auditors. Though well-intended, these federal reform efforts have not achieved the desired result. The same structural impediments that historically have prevented child welfare agencies from delivering quality services similarly have blunted the impact of federal reforms. Child advocates have utilized class action litigation to ignite and sustain systemic reform. These class actions suits, typically involving claims for violation of substantive due process and statutory rights, have resulted in court enforceable consent decrees that have resulted in improved care, services, and permanency outcomes for children by obligating state agencies to undertake essential structural improvements. This Essay will present the disappointing history of the federal reform efforts and the promise that structural reform class actions hold for children in foster care.

Just a Flesh Wound? The Impact of Lingle v. Chevron on Regulatory Takings Law

In Lingle v. Chevron USA, Inc., the Supreme Court reversed 25 years of precedent and held that, contra the doctrine of Agins v. City of Tiburon, a land use regulation that fails to substantially advance legitimate state interests does not violate the Takings Clause of the Fifth Amendment. Instead (with limited exceptions), failure of the test sets out a due process violation, resulting in the invalidation of the offending measure. Although Lingle has been portrayed as a major setback for the constitutional rights of property owners, this article contends that the actual impact of the decision will be minor. By affirming the availability of a due process remedy for substantial advancement claims, the Lingle Court has opened a new avenue for relief in the Ninth Circuit, which has barred such complaints for the past decade. Moreover, where property owners can show significant economic injury from the application of such regulations, allegations that previously would have supported a substantial advancement claim will continue to set out a Takings Clause violation under the character of the state action prong of Penn Central Transportation Co. v. City of New York.

Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech

In Republican Party of Minnesota v. White, the Supreme Court suggests that content-based restrictions on judicial campaign speech are unconstitutional unless they are narrowly tailored to protect litigants' due process rights. I argue that if this is so, all of the current state restrictions on judicial campaigning are unconstitutional. This is because, under my analysis of when litigants have a procedural due process right to disqualify a judge for past campaign speech, the current restrictions suppress speech even in circumstances in which the speech would not be grounds for disqualification. Moreover, even a very narrow restriction aimed only at preventing due process violations might be unconstitutional because disqualification may be a feasible less-speech-restrictive alternative to suppressing campaign speech. Even if very narrow speech restrictions could be adopted, however, I argue that states with judicial elections will experience significantly more substantive campaigning, including campaign promises, than they did prior to White. The ultimate effect of White therefore will be to make states choose between having judicial elections with widespread substantive campaigning and eliminating judicial elections altogether. Despite evidence that elections affect judicial decisionmaking, I argue that states can choose the former without jeopardizing the protection of individual rights.

Buckeyeand Ballot Box Zoning: When Democracy is a Dangerous Thing

Abstract For the second time in a quarter of a century, the U.S. Supreme Court has reversed the Ohio Supreme Court in a ballot box zoning case. In the first, City of Eastlake v. Forest City Enterprises, the Court held that exercising the referendum power to return a parcel zoned multifamily by the Eastlake city council to its previous commercial classification was not a denial of due process by means of a standardless delegation of power from the state legislature to the people of Eastlake. This was because the people retained in the Ohio State Constitution the power to zone through the ballot box. So there was no delegation at all—standardless or otherwise. Twenty-seven years later, in City of Cuyahoga Falls v. Buckeye Community Hope Foundation, the Court finds that a referendum on a specific project site plan likewise passes due process scrutiny: “The subjection of the site-plan ordinance to the City's referendum process, regardless of whether that ordinance reflected an administrative or legislative decision, did not constitute per se arbitrary government conduct in violation of due process.”

Seven Years of Litigation: Could theBuckeyeLawsuits Have Been Avoided?

Abstract You can do a lot of Monday morning quarterbacking on the outcome of City of Cuyahoga Falls v. Buckeye Community Hope Foundation, but none of it would be especially complimentary. Here the U.S. Supreme Court ruled that subjecting a site plan approval of a federally assisted low-income housing project to a referendum did not constitute per se arbitrary government conduct in violation of due process. Five years prior to the U.S. Supreme Court decision, the Ohio Supreme Court had found that the referendum itself was unconstitutional as a matter of state law. Present in the federal case was the contention that the referendum petitions were motivated by racial animus, which seems perfectly clear to me from the record before the U. S. Supreme Court.

Government Contractors’ Liability for Constitutional Torts

Government Contractors’ Liability for Constitutional Torts

Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight

Prosecutors sometimes exploit ambiguity in the evidence of a crime and assert inconsistent factual positions to different fact finders in severed trials. For example, evidence from a robbery/homicide may implicate two defendants, but not conclusively prove which one fired the single fatal bullet; in that situation, the prosecutor may argue to separate juries that each robbery defendant was the trigger man and, as the shooter of the fatal bullet, deserves the death penalty. Making these inconsistent arguments, the prosecutor may achieve success in both cases. This prosecutorial inconsistency undermines the fairness of the judicial process and may violate the due process rights of one or both of the defendants. Prosecutorial inconsistency can arise when two alleged participants in the same crime are tried separately or when a single defendant is retried for the same offense. Traditional tools for discouraging or preventing the government from asserting inconsistent positions in criminal trials are inadequate. Admitting prior inconsistent statements by the government as party admissions highlights the inconsistency for the fact finder, but does not prevent the prosecution from asserting the inconsistent position. Courts do not generally treat assertions by the government in previous trials as binding admissions. Collateral estoppel operates in criminal proceedings only when mutuality of parties is present and a particular issue on which to preclude religitation can be identified. A modified judicial estoppel is the most promising tool available to the criminal defendant to prevent prosecutorial inconsistency. The doctrine bars a party from asserting a position in one proceeding that is inconsistent with a position it successfully asserted in a prior proceeding. To be effective in the criminal context, however, limitations commonly imposed on the doctrine need to be relaxed. First, instead of requiring the court to have formally accepted the prior asserted position as a condition for estoppel in the later proceeding, success for the government consistent with its asserted position should be sufficient. Second, bad faith should not be a condition for judicial estoppel to operate, because corruption of the judicial process, not prosecutorial misconduct, is at issue. Properly applied, judicial estoppel also protects the government's interests. The prosecution can avoid a bar of a later inconsistent assertion by showing that its initial assertion was at an early stage of the proceeding when the evidence was not fully developed, that new evidence has come to light between the two proceedings or that the prior inconsistent position was rejected by the previous fact finder. Defendants convicted as a result of prosecutorial inconsistency should be afforded relief under their constitutional rights to due process. Although sounding in both improper argument and presentation of false testimony, false testimony provides the appropriate framework for evaluating due process violations from prosecutorial inconsistency. The first or second defendant should be entitled to relief if there is any reasonable likelihood that the prosecutorial inconsistency influenced the outcome of the case and there is no acceptable explanation for the change.

Is the Miranda Caselaw Really Inconsistent? A Proposed Fifth Amendment Synthesis

In decisions since Miranda, the Supreme Court has characterized the required warnings as less than constitutionally required ?prophylactic rules.? The prophylactic rules cases are generally regarded as inconsistent with the Court?s cases applying Miranda in state cases. The Fourth Circuit?s recent Dickerson decision relied on the prophylactic rules cases to admit a Miranda-tainted statement on the authority of Title II of the 1968 Crime Control Act, which purports to repudiate Miranda in favor of the due process voluntariness test. The Department of Justice asked the court to review Dickerson, and cert was granted in early December. The article argues that consistency does not require major changes in the law. In only five cases has the Court approved the admission of evidence obtained in violation of Miranda. The impeachment cases can be squared with Miranda on either or both of two theories. First, the defendant who testifies at trial waives the privilege at trial and can be compelled to answer pertinent questions on cross. Thus the use of previously compelled testimony for impeachment does not constitute a renewed violation of the Fifth Amendment, and adequate deterrence of the pretrial compulsion satisfies the Fifth Amendment. Second, compelled statements admitted for credibility rather than truth are not testimonial, so long as the jury follows the court?s instructions. The limiting instruction is a fiction, but in many other cases the constitutionality of admitting evidence depends on just this fiction. The need to deter coerced confessions justifies a broader exclusionary rule for due process violations, and the greater difficulty of proving perjury when the pretrial statement was not sworn justifies a broader exclusionary rule for statements compelled by formal process. The derivative evidence cases can be read as merely shifting the burden of proof on the issue of whether evidence was derived from previously compelled testimony. Given that interrogation takes place at an early and dynamic stage of the investigation, exclusion of all evidence arguably derived from a Miranda violation would cost the government much evidence it would have discovered in the absence of the violation. By contrast, immunity grants are deliberate prosecutorial decisions, issued after the government has exhausted other avenues of investigation. It follows that assigning the government the burden of disproving causation in immunity cases, but assigning the defense the burden of proving causation in Miranda cases, rests on a defensible distinction. The public safety case can be squared with Miranda by emphasizing the interplay between custody and interrogation. When the suspect is asked a single question in public during an emergency, it is fair to say that even though the suspect is in custody and even though the suspect has been questioned, the suspect has not been subjected to custodial interrogation. Traffic stops and prison informers have been held not to involve custodial interrogation, even though in both contexts the suspect is not free to leave and is questioned. The underlying theory of the prophylactic rules cases is indeed inconsistent with the underlying theory of Miranda. It is possible, however, to explain almost all the holdings in the Miranda caselaw without calling Miranda into question.

Lochner v. New York: economic regulation on trial

Lochner v. New (1905), which pitted a conservative activist judiciary against a reform-minded legislature, remains one of most important and most frequently cited cases in Supreme Court history. In this concise and readable guide, Paul Kens shows us why case remains such an important marker in ideological battles between free market and regulatory state. The Supreme Court's decision declared unconstitutional a New York State law limiting bakery workers to no more than ten hours per day or sixty hours per week. By evoking its police power, state hoped to eliminate employers' abuse of these workers. But 5-4 majority opinion, authored by Justice Rufus Peckham and renounced by Justice Oliver Wendell Holmes, cited state's violation of due process and right of contract between employers and employees, which majority believed was protected by Fourteenth Amendment. Critics jumped on decision as an example of conservative juidicial activism promoting laissez-faire capitalism at expense of progressive reform. As series editors Peter Hoffer and N.E.H. Hull note in their preface, the case also raised a host of significant questions regarding impetus of state legislatures to enter workplace and regulate hours, wages, and working conditions; of role of courts as monitors of constitutionality of state regulation of economy; and of place of economic and moral theories in judicial thinking. Kens, however, reminds us that these hotly contested ideas and principles emerged from a very real human drama involving workers, owners, legislators, lawyers, and judges. Within crucible of an industrializing America, their story reflected fierce competition between two powerful ideologies.

Procedural and Legal Motivations to Correct for Perceived Judicial Biases

The question of whether procedural or legal concerns per se can motivate corrections of jurors' judgments when in conflict with accuracy concerns was examined. Mock jury members were exposed to diagnostic incriminating evidence that was obtained in either serious or mild violation of due process and that was ruled as admissible or inadmissible. When the evidence was obtained in serious violation of due process, jurors corrected for it whether or not it was ruled as inadmissible, consistent with a personal concern with procedural justice. When the evidence was obtained in mild violation of due process, jurors corrected for the evidence when it was inadmissible but not when it was admissible, consistent with a legal motivation. We suggest that corrections made in a social role (i.e., juror) can be motivated by both procedural and legal concerns, even when they conflict with perceived accuracy.

A Review and Analysis of Prison Litigation Reform Act Court Decisions: Solution or Aggravation?

On April 26, 1996, Congress enacted landmark legislation aimed at curtailing meritless inmate litigation and restricting remedies for prison condition lawsuits. This legislation, the Prison Litigation Reform Act (PLRA), is briefly summarized in this article. Five areas of constitutional challenges to the PLRA at the appellate and district court level are reviewed. Eleven legal issues raised by the PLRA are inconsistent decisions among circuit and district courts, particularly in the areas of separation of powers and due process violations.

Medical student academic misconduct

Recent case law has protected medical students found guilty of academic misconduct from severe sanctions by emphasizing due process and contractural rights. In light of this development, proactive approaches should be considered by medical schools. Faculty or administrators who have legal backgrounds are more likely to avoid breach of contract and violation of due process and should be appointed as hearing officers in cases of alleged academic misconduct. Finally, determination of a student's mental state (as defined in the MPC) by the hearing officer is a fair and rational method of determining what sanctions should be placed on medical students found to have cheated or plagiarized.

Drug testing in the public sector: The role of unions

Not surprisingly, unions have traditionally played an active role in employee drug testing. And, although the U.S. Supreme Court upheld the constitutionality of drug testing in two 1989 decisions, unions have continued to wage challenges to urinalysis under the U.S. Constitution and in the labor arena. As this research shows, federal as well as state and local government unions have had some success in challenging the categories of employees targeted for testing, good faith bargaining over drug testing, and due process and equity violations around testing.

Breach of Contract as a Due Process Violation: Can the Constitution Be a Font of Contract Law?

Breach of Contract as a Due Process Violation: Can the Constitution Be a Font of Contract Law?

The Perils ofPowell:

No abstract available for this article.

THE IMPACT OF BELL V. WOLFISH UPON PRISONER'S RIGHTS

Abstract Bell v. Wolfish, 441 U.S. 520. 60 L. Ed. 2d 447, S. Ct. 1861 (1979) was of major importance in prisoner's rights litigation and signalled a potential return to the “hands-off” judicialapproachto correctional institutions. The case involved the Metropolitan Correctional Center in New York which was built in 1975. The lower courts found the MCC lacking in several areas but the U.S. Supreme Court found (5–4) that: 1. double bunking of inmates was not ‘punishment’ 2. the publishers only rule was constitutional 3. the package receipt restriction was not a violation of due process 4. room searches of pre-trial detainees were not a violation of the right of privacy 5. visual body cavity searches were not unreasonable. The Court also emphasized the strong deference to be paid to prison officials. At the time the case was seen as an important setback for the constitutional rights of pre-trial detainees and by implication of convicted inmates also. This paper reviews primarily federal decisions nationally ...