Con Law 9

Front 1

Odir's Due Process

Front 2

Is government neglignece a deprivation?

Back 2

No.

Front 3

What is deprivation?

Back 3

i. Generally negligence is insufficient to create deprivation ii. There must be intentional or recklessness done by the government to deprive due process

Front 4

From Daniels(“prisoner slipped on pillow”), why does the court reject negligence as a due process claim? Facts: 1. A state prisoner who slipped and fell on a pillow filed an equal protection based lawsuit against the correctional officer who had negligently left the pillow on the ground.

Back 4

Due process right to be free from bodily injury; respondent stated that he deprived of freedom from bodily injury recognized under the due process clause (Court noted is was not a fundamental right but a right) 3. Why does the Court reject negligence as a deprivation of due process claim? a. The distinction is that when we talk about deprivation the concern is about government AFFIRMATIVE ACTIONS/abuse; intentional action i. Negligence is not sufficient 4. What sort of tortuous conduct would satisfy a deprivation? a. If the guard intentionally left the pillow for the prisoner to slip. b. Possibly reckless conduct as well

Front 5

How does County of Sacramento v. Lewis (“police pursuit”) illustrate how it is more deferential to the governemnt in deprivation situations? Facts: 1. A lawsuit alleging a violation of due process was filed when a teenager was killed as a result of a high sped chase with the police.

Back 5

2. The Court is more DEFERENTIAL IN AN EMERGENCY situation a. The government’s conduct must shock the conscience—government’s action must be intentional b. What would constitute an emergency situation? i. Whether you have an opportunity to think about the action; a quick judgment. 1. A deprivation would exist if it was intentional

Front 6

How does DeShaney (“child being abused by father; social workers did nothing”) demonstrate that You have to show it was the government that was responsible for the harm and not a private party?

Back 6

1. The government has no duty to protect people from private harm b. Is there a deprivation that can be attributed to the government? i. The majority states this is just government in action ii. The Dissent states that by creating these social services, the government has a responsibility to take care of any abuse 1. Omission can sometimes be compensable under Tort a. If you took some steps to save someone, you must follow through. iii. Suppose you say the gov is liable and it has to pay $ for it, how would the social services respond? 1. If we are going to be liable for bad parenting, money will have to be invested in settlements instead of these programs. 2. If we are going to be liable, then we will be very aggressive and take away a child away from parents at a first sign of child abuse.

Front 7

NOT the MATTHEWS test per se: What procedures are due to individuals who have suffered at the hands of the government? What sort of procedures must ht government follow?

Back 7

i. Government give NOTICE 1. If someone has not been notified of a deprivation or hearing to take place, they need to be notified. ii. Opportunity to be heard 1. A court 2. An informal setting for the individual to argue against the government 3. Or be done entirely on paper iii. Timing: 1. Is the notice and hearing before the deprivation? a. Sometimes it is okay for gov to take away property and then give notification; but sometimes the other way

Front 8

How does Mathews employ its balancing test? Facts: i. A state disability benefit recipient filed suit when the state decided to stop providing him with the benefits he had been receiving.

Back 8

ii. Three different factors for balancing test 1. The private interests that will be affected a. How much are you losing—big or small? b. Suppose the interest is really important, you have to provide MORE ELABORATE PROCEDINGS. i. A hearing ii. Each side has lawyers iii. A neutral arbiter 2. The extent to which the hearing will make a difference a. What is the added value of a more elaborate procedure? 3. The cost of the government a. How costly is the hearing? b. This is weighed against private interests and value of procedure.

Front 9

When the government tries to justify deprivation it has to offer ______ AND ________ ______ if it wants to take your children (for example).

Back 9

When the government tries to justify deprivation it has to offer CLEAR AND CONVINCING EVIDENCE if it wants to take your children.

Front 10

Applying Mathews to Hamdi

Back 10

i. Hamdi was detained in battlefield. He has no access in a naval base ii. The gov stated it had the right to detain you, which here the Court agreed. iii. But the Court said that it was entitled to some opportunity to be heard 1. This is where this balancing test is applied a. The interest is important b/c freedom is being taken away b. The court is also concerned w/ the cost of the government i. There is a concern for giving away secrets 1. Not only providing lawyers c. What sort of procedures can protect these two interests? i. We will presume that the government’s evidence is valid. 1. It is up to the detainee to prove otherwise 2. The Court is very deferential toward the executive branch when it comes to military affairs.

Front 11

How did Cruzan demonstrate a right to die?

Back 11

A right to terminate medical treatment. You have such a right under the liberty of due process clause. But it’s hard to determine whether it is a fundamental right, or what kind of scrutiny it is. It is probably rational base review b/c it upholds state law. There is also clear and convincing evidence that must be met; and this evidence must come from the patient herself to refuse medical treatment.