Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Saturday, October 09, 2004

Citizen immunites


Current public policy places a presumption of "constitutionality" on legislative acts. Unfortunately, the Patriot Act and seemingly infinite detention of people at Guantanmo and others held incomuicado raise serious doubts about this presumption.

The issuse that arises is: What is an acceptable standard the public can use to evalaute the reasonableness of government actions when government fails to adequately regulate itself or timely resolve constitutional issues, and there are serious impacts to individual liberties.

A court's review of legislation begins with the strong presumption that the legislation is constitutional, and before a court may declare it unconstitutional, it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible. State v. Cook (1998), 83 Ohio St.3d 404, 409, certiorari denied (1999), 525 U.S. 1182, 119 S.Ct. 1122. From 2001 Ohio 4055

This discussion takes the opposite view and is premised on the assumption that not all legislative acts are constitutional; nor are executive-judical actions necessarily lawful when outside public attention; nor are judicial-schedules necessarily acceptable or timely when it comes to issues related to public safety, constitutional rights, and the life and liberty of individuals.

Should individual citizens be protected when government fails to act and citizens intervene to protect private citizen's rights?

What are the immunites which free citizens should be afforded?

Another view

Finally in this section, Barnett turns to the meaning of the Ninth Amendment, which reserves unenumerated rights to the people, and takes issue with Footnote 4 of the 1938 case United States v. Carolene Products. The current methodology of the courts under Footnote 4, according to Barnett, is to begin with a presumption of constitutionality for acts of the legislature, unless there is a specific enumerated right in the Constitution that is violated, in which case the legislature must justify that violation. The requirement of a specific enumerated right was then expanded in Griswold v. Connecticut by allowing additional rights not specifically enumerated, but found in "emanations and penumbras" from the other rights. Barnett argues, by contrast, that the proper presumption is one of liberty, which can only be limited or regulated by justification from a specific power granted to Congress, or a police power granted to the states which does not eliminate any liberties or natural rights. (E.g., a regulation can restrict time/manner/place of speech, but not content; speech itself cannot be prohibited on the basis of content without improperly infringing the right.) Barnett gives an entire chapter on the presumption of liberty, and how to identify rights that have not specifically been enumerated. Ref Reviewer: James J. Lippard "skeptic" (Phoenix, AZ USA) -- Review of: Restoring the Lost Constitution : The Presumption of Liberty


This memo does not suggest that citizens take the law into their own hands; rather it argues that statutes be in place so that when situations like this arise, there are clear guidelines to what private citizens should consider before taking action. This memo does not advocate taking action unless these statutes are in place.


Citizens under the statutes should be granted various immunity when they com to the defense who are abused by the government.

There should also be afforded to free citizens the rights afforded to officers in their "defense of violence". Officers, in certain situations, are not held liable for deaths when the officers took reasonable actions and were acting in a manner consistent with the professional standars.

This is not to say that violence against officers should be condoned; rather it is to say that if law enforcement officers are afforded, as agents of the state, certain immunities against proexcution for deaths that occur because of "no faulto f their own" or "reasonable mistakes", then so too should those same excuses, liberties, and protections be afforded to free citizens who take lawful action to prevent government abuse committed upon the nation's citizens.

There should be several doctrines which apply to the citizens when the intervene in situations where all three branches fail:

- The honest mistake doctrine

Law enforcement is given great discretion to explain away errors; in cases where they "happen to come across evidence" [using whatever nebulous standard they choose] the public is told to put up with this abuse.

In turn, if such a standard is to be "granted" to law enforcement to create a shield to accountability, so too should free citizens be affordd the same immunity when the citzien takes action to preserve the constitution.

- The rasonable error doctrine Ref

Law enforcement makes mistakes; yet when thosemistakes are useds as the basis to justify violations of the BIll of Rights, and that pattern of mistakes is pervasive, the public has a reaonable doubt as to whether mistake lies at the heart of the problem, or whether there is a leadership problem.

In those casers where POST and DoJ-OPR refuse to investigate and take action against government entites that engage in a pervasive pattern of misconduct, abuse, and unalwful violations of law, the free citizen whould be granted the same priviledge of "reasonable error" when being held accountable at later judical reviews.

In short, it is reasonable to speuclate that granting the free ciitizen the right to intervene and take action will come with errors. Yet, as they are with law enforcement, the courts should grant to the free citizen a certain amount of discretion after they, in good faith, have faken action that will come to the aid fo the constitution.

It is noteworthy that many officers will feign, "We're here to help" as the excuse to engae in pre-textual stops to gather evidence; so too should teh free citizen be given similar escape clauses when they choose to take action in defense of the constitution that "for only a minor error" accidentally causes harm to someone they thought was violating the constitution.

DoJ's attitude of "Hay, we thought so, but made an honest mkistake" when it applies to Guantanamo-prisoners should also be applied to free citizens after they, acting under immuniteis afforded by Congress, take action to detain, arrest, and deny the liberty to government agents who are acting in a manner that a "reasonable citizen" would believe is a threaet to the constitution.

- The reasonable perception of guilty doctrine

DoJ currently is rewarded for accusing the public of anything, and lokcing people away for three years without any consequences.

So too should Congress afford the public the statutory protection of immunity in cases where free citizens also take action in cases where all three branches fail to timely act; the government misconduct is pervasive and in vioation of the Bill of Rights; the number of offenses warrants citizen action; and the time, place, and manner of the abuses is so hidden that a reasonable citizen would have no other choice but to immedately detain, arrest, and imprison an officer, agent, or governmetn worker for violating the constitution.

In those cases where the govenrment agent was not actually egage din misconduct, or the government agents was engage in a pattern of misconduct in an effort to "fit in with a criminal enterprise during an udner cover opeation," free citizens whould be granted immunity in those cases because the government agents conduct would leave the impression witht he reasonable free ciztien that the government agent was engagee in unlawful, illegal, and unconstitutional polices that required immediate and swift actions.

- The reasonable allegation to justify force doctrine

Free citizens should also be afforded the right to make allegations, just as DoJ does, and impose the full weight of the constittion on the back of government agents. The right of free citizens to engae in this conduct should be protected; and any free citizen that dares challegnes what appares to be unconstitutional, illegal, unlawful, or abusive government, agent, or officer action should have the immunity from accountability just as DoJ fails to hold itself accountable.

Moreover, in those cases where the free citizen makes an allegation and nobody does anything,a nd the free citzien has a reasonable basis to believe the allegation against the government agent is correct, but neither of the three branches proves responsive, then the free citizen should be afforded immunity when they take action, and there is an actual violation of the constitution or Bill of Rights, and the only way to prevent furuther violations of the constitution and bill of rights, because of fa fialure of the three branches to act, is the use of deadly force.

Again, this is not intended to sanciont violence; but to encourage Congress to pass legislaytion that will permit deadly force to be used against govenrment agents by free citizens in cases where government agenets: Violate the constituion; fail to prewsreve the contsition; engage in abuse, misconduct, or actual acts of turure and violence in contravention to the Geneva Conventions; or are relying on statutes and standards that are so clearly at odds with the BIll of Rights that no reasonable free citizen would put up with that abuse in still call themselves free.

In those cases, Congress should already have in place statutes that permit free citizens to take action, and if those tests are satisifed, then any errors should be protected from accountability since the free citizen was acting in good faith to preserve, protect, and defend the constitution against all domestic enemies.

Law enforcement continues to be rewareded with false convictions after planting evidence; and also for calling in anonymous information. It is surprising that merely allegations are used by the courts to say, "What you did is OK given the circumstances."

Rather than wait for the courts to approve the same quasi-ridiculous0-reasons-to-justify-abuse, why not simply codify the same standards that would permit the free citizens to arrive and prevent government abuse.

- The vaguely articulated excuse to justify unreasonable questions doctrine

No free citizen should be labeled as being "suspicious" simply for asking a question; however, if questions are "suspcisious" then so too should "law enforcment asking questions" be the reasonable basis to be suspicious about law enforcement.

All these doctrines are mirrored in the powers and liberties afforded law enforcement. Each day we hear of more excuses afforded to law enforcement to justify their abuses; so too should free citizens be afforded the right, power, and immunity to similarly defend themselves against liability in cases where they, as a quasi-judicial-agent, take action to prevent the abuse or unlawful acts by government agents, officers, and officials.

If the above doctrines are "not worthy of being afforded" to those who dare challenge unconstititonal government actios, then the government needs to explain credibly why thsee defesens are only applicable to some in government, but the population is not afforded these same immunities.

Surely, if we are a nation of 'self-governed" then the self-governed surely could be graned the same discretions that the government affords itself. Indeed, the state, as a body of 'the poeple' is simply a collective arm of the people; and when that government body no longer demonstrates that it cannot carry out its duties but for abusive vioaltions of the founding document then that government no longer deserves blind obedience, but challenges.

Yet, in situations where the courts, officers, legislators, and exeuctive not only thwart checks on its power, but actively engage in conduct that intimidates, abuses, and silences any who dare speak of this misconduct, then what alternatives are there?

Clearly, we are not allowed to engae in unlawful violence against governments around the globe; yet ther are situations where under "just war theory" violence is permitted.

Why are there not similar provisions that allow citizens, in the spirit of "just war theory," to go to the legislature and say, "It has come time for us to realize where we are -- the situatoin is grave; if no action is taken, then we will rely on the statutes that afford us the right to defend ourselves, to ensure that governmnt officers are prohibiited from continuing thsi unlawful conduct.

The legislature needs to be brough into the discussion so that this nation legalizes a credible deterrent to failures in the three branches.

It is unreasonable that we be asked to "put up with" abusive, unlawful conduct by officers for three years without swift attention; yet, the officers are afforded immediate review of charges against them.

If the officers are to be afforded immuniteis for acting on behalf of the state; then so too should the free citizen be afforded immunities when acting on behalf of the constitution, and when all other options have failed.

It should not take three years to 'get around to' agreeing that unlawful legilsation exists as the abuses are allowed to continue. Rather, the free citizen whould be granted immunity to take action to prevent the abuses, stop the misconduct, and ensure that the unlawful legislation is not enforced.

Law enforcement is given great power and discretion; they are also being afforded the right to muddle the courts, and also the priviledge to provide false testimony to ensure convictions. So too should the public be afforded teh right to lie without consequences before the court. If that standard is good enough for law enforcement, then so too should it be afforded to the civilian population.