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View Full Version : SCOTUS: DeShaney v. Winnebago County. CCW Implications?


choprzrul
06-16-2011, 9:46 AM
It would appear to me that any LE agency that denies a CCW is accepting responsibility and liability for that person's safety:

SUPREME COURT OF THE UNITED STATES

489 U.S. 189
DeShaney v. Winnebago County Department of Social Services

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 87-154 Argued: November 2, 1988 --- Decided: February 22, 1989

Petitioner is a child who was subjected to a series of beatings by his father, with whom he lived. Respondents, a county department of social services and several of its social workers, received complaints that petitioner was being abused by his father, and took various steps to protect him; they did not, however, act to remove petitioner from his father's custody. Petitioner's father finally beat him so severely that he suffered permanent brain damage, and was rendered profoundly retarded. Petitioner and his mother sued respondents under 42 U.S.C. § 1983 alleging that respondents had deprived petitioner of his liberty interest in bodily integrity, in violation of his rights under the substantive component of the Fourteenth Amendment's Due Process Clause, by failing to intervene to protect him against his father's violence. The District Court granted summary judgment for respondents, and the Court of Appeals affirmed.

Held: Respondents' failure to provide petitioner with adequate protection against his father's violence did not violate his rights under the substantive component of the Due Process Clause. Pp. 194-203.

(a) A State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Pp. 194-197.

(b) There is no merit to petitioner's contention that the State's knowledge of his danger and expressions of willingness to protect him against that danger established a "special relationship" giving rise to an affirmative constitutional duty to protect. While certain "special relationships" created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process [p190] Clause, to provide adequate protection, see Estelle v. Gamble, 429 U.S. 97"]429 U.S. 97; 429 U.S. 97; Youngberg v. Romeo, 457 U.S. 307, the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty. No such duty existed here, for the harms petitioner suffered did not occur while the State was holding him in its custody, but while he was in the custody of his natural father, who was in no sense a state actor. While the State may have been aware of the dangers that he faced, it played no part in their creation, nor did it do anything to render him more vulnerable to them. Under these circumstances, the Due Process Clause did not impose upon the State an affirmative duty to provide petitioner with adequate protection. Pp. 197-201.

(c) It may well be that, by voluntarily undertaking to provide petitioner with protection against a danger it played no part in creating, the State acquired a duty under state tort law to provide him with adequate protection against that danger. But the Due Process Clause does not transform every tort committed by a state actor into a constitutional violation. Pp. 201-202.

812 F.2d. 298, affirmed.

We know that the police are under no obligation to protect us per the above SCOTUS decision(the part in Red above). However, the supremes left open (rather concisely) those conditions whereby the police ARE liable for our protection(bold & underlined above).

Now, if I apply to my local CLEO and my county sheriff for a CCW permit, and am subsequently denied a permit, under this decision, would those law enforcement agencies become instantly responsible for my personal security via this clause: "...from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty."? Heller & McDonald established that Keep, Bear, and Self-Defense as fundamental, individual, civil rights, i.e. Liberties. A CCW denial is a Liberty denial.

It looks to me like law enforcement agencies are opening themselves up to giant amounts of personal injury liability each time they deny a CCW. I could see a cottage industry developing for personal injury attorneys who pursue these types of cases. Imagine how many people would apply for a CCW just on the outside chance they got hurt down the line and could sue for damages in the millions.

Peaceful John
06-16-2011, 9:57 AM
Choprzrul, those bits might be one of the keys to the kingdom. Thank you.

Cordially,
John

Window_Seat
06-16-2011, 10:28 AM
Good find. :thumbsup:

Gone could be the days of:

Citizen: "We have been assaulted, and demand being given the fundamental & individual right of the ability to protect ourselves."
Government: "We do not have to protect you, and you are not allowed to protect yourself."

Erik.

Paul S
06-16-2011, 10:32 AM
Indeed..a good catch. But I cannot fathom the cost and heartache in suing department X for refusing to issue a carry permit. And I am sure that is the only way you'd be able to get redress using this SCOTUS ruling.

Spelunker
06-16-2011, 10:33 AM
It looks like this was back in 1989 and was in the 7th circuit. I wonder what our good ole 9th has decided in this area of law. Maybe there is a split we could take advantage of.

On second reading it looks like they are saying that the state is only responsible if you are in their custody and are injured.

choprzrul
06-16-2011, 10:48 AM
It looks like this was back in 1989 and was in the 7th circuit. I wonder what our good ole 9th has decided in this area of law. Maybe there is a split we could take advantage of.

On second reading it looks like they are saying that the state is only responsible if you are in their custody and are injured.

I disagree. "...or other similar restraint of personal liberty..." is why. There are many ways by which government entities and their agents can restrain your personal liberties.

Heller & McDonald established and incorporated the 2A as personal liberties. They also left open those areas by which the individual states can restrain those liberties, such as sensitive places and regulating carry. It is those areas of restraint where the state is assuming responsibility and therefore liability for your personal security or lack thereof. When a government agency receives your application that requests permission to exercise your personal liberties, and subsequently denies that request, they are in deed and action denying your personal liberties and taking on the responsibility to protect you under this decision.

.

Spelunker
06-16-2011, 11:00 AM
"but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty."

They mention imprisonment, institutionalization and then say similar restraints. It could be read to be if you are in detainment or custody mode without the ability to leave an area of your own free accord then the state would be responsible. I think it can be read both ways.

Crom
06-16-2011, 11:48 AM
Now, if I apply to my local CLEO and my county sheriff for a CCW permit, and am subsequently denied a permit, under this decision, would those law enforcement agencies become instantly responsible for my personal security via this clause: "...from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty."? Heller & McDonald established that Keep, Bear, and Self-Defense as fundamental, individual, civil rights, i.e. Liberties. A CCW denial is a Liberty denial.

It looks to me like law enforcement agencies are opening themselves up to giant amounts of personal injury liability each time they deny a CCW. I could see a cottage industry developing for personal injury attorneys who pursue these types of cases. Imagine how many people would apply for a CCW just on the outside chance they got hurt down the line and could sue for damages in the millions.

Having a denial is valuable in that it can show harm was done. A better approach would be to apply for a CCW, and if denied on "good cause", take that denial letter and fold it up and put it back pocket and carry anyway. Given that LOC is illegal, the discretionary CCW law is unjust. I would rather carry and be alive then be a statistic in some victims database.

choprzrul
06-16-2011, 11:50 AM
"but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty."

They mention imprisonment, institutionalization and then say similar restraints. It could be read to be if you are in detainment or custody mode without the ability to leave an area of your own free accord then the state would be responsible. I think it can be read both ways.

Thank you for the commentary. May I present your quote a bit differently:

but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.

They are addressing 'limitations'...'to act on his own behalf' because of 'restraint of personal liberty'.

I see this as exactly congruent with a CCW denial (limitation of my ability to act on my own behalf in a self defense scenario) creating a restraint of my personal liberty (as established & incorporated in Heller & McDonald). In other words, the denial is the government's way of preventing me from acting on my own behalf for the purpose of self defense. The government is clearly saying that they are NOT allowing me to act on my own behalf. CA Penal Code makes it illegal for me to act on my own behalf without their permission.

I contend that the government is under no obligation to protect me absent my CCW application. It is only under obligation once they have denied my application(my request to be personally responsible for my own liberties). At that point, they are saying to me 'we are restraining your personal liberty to act on your own behalf in a self defense situation'. They have de facto assumed responsibility for defending me. Should I be injured or killed, the government has failed to adequately defend me and should be liable for such failure.

...well, at least that is the way I see it...

.

bruss01
06-16-2011, 12:07 PM
"but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty."

They mention imprisonment, institutionalization and then say similar restraints. It could be read to be if you are in detainment or custody mode without the ability to leave an area of your own free accord then the state would be responsible. I think it can be read both ways.

Not all prisons have bars. Some prisons are a restrictive little cell where the walls are made of infringement and the denial of fundamental rights. Can you honestly say that the man who is told by those who have controlling power over him "All that is not mandatory is forbidden" is not essentially in a jail cell, regardless of how much physical space he has inside that cell?

command_liner
06-16-2011, 1:43 PM
Good catch.
Note the 2-dimensional aspect of the current situation
1) Now that Heller/McDonald have changed the law, that little gem has more meaning
2) The recent federal decision to release tens of thousands of felons into California
is based on similar reasoning. This sets up a conflict...
Do the 4th amendment rights of convicted felons released from jail supersede the
2nd amendment rights of the law abiding? If so, how is that? How is the duty of the
state to protect 4th amendment rights of felons stronger than the duty of the state
to protect 2nd amendment rights of the average law abiding citizen?

Falconis
06-16-2011, 2:18 PM
I like where you are heading with this. Now all we need is someone to get denied a CCW and get mugged to create some standing.

FOR THE RECORD I AM NOT ADVISING TO GO GET MUGGED!!!!!

I can see how the state will argue, but in the end it's interesting.

safewaysecurity
06-16-2011, 3:15 PM
Tagged

Maestro Pistolero
06-16-2011, 3:41 PM
Nice find. Exactly what we need to take down GFSZs and define sensitive places in the narrowest possible context.

http://4.bp.blogspot.com/-1KTWDOjOu_w/TZ-0kcESSCI/AAAAAAAABAs/yHUa4eYGbHw/s1600/excellent-mr-burns.gif
"EXCELLENT. BWAHAHAHAHA"

yellowfin
06-16-2011, 3:45 PM
This may be even more useful against NY/NYC which requires license for pistol ownership and then often (rather maliciously) restricts them to exclude individuals from carrying them for self defense.

Spelunker
06-16-2011, 4:04 PM
So what is the definition of "personal liberty"?

So is a CCW a right or a privilege?

Neither heller or McDonald said CCW is a right. Maybe after a few of the current cases go through that will be hashed out. I can see where this may be useful in court.

Choprz where do you find this stuff?

Rivers
06-16-2011, 4:09 PM
... the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.

So in San Diego, the Sheriff likes to put restrictions on whatever CCWs he issues, like "only valid during business activities for Acme Industries" or my favorite (so far), for a property manager of large apartment complex, "not valid in private residences." So if someone who has a CCW is attacked, injured, killed when not carrying because of the restrictions, could the SD Sheriff be held liable for damages?

choprzrul
06-16-2011, 4:13 PM
So what is the definition of "personal liberty"?

So is a CCW a right or a privilege?

Neither heller or McDonald said CCW is a right. Maybe after a few of the current cases go through that will be hashed out. I can see where this may be useful in court.

Choprz where do you find this stuff?

I follow leads that cite USSC decisions and then go read those decisions. Apply some critical thought as to how they could be leveraged for our cause.

Now, to your assertion that 'Neither Heller or McDonald said CCW is a right'. May I present the following:

From DISTRICT OF COLUMBIA v. HELLER:

In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ”

So, SCOTUS has ruled that ‘bear’ means ‘…in the clothing or in a pocket, for the purpose…of being armed and ready for offensive or defensive action…’. The Supremes continue in their Heller decision:

c. Meaning of the Operative Clause.
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”

Doesn't get much plainer than that. Several circuits have rendered some really bad interpretations of what SCOTUS said in Heller & McDonald, but those decisions are not controlling in the 9th, only the words of the USSC are at this point. Not sure how much plainer the supremes could make it. I suppose that it will take a circuit split for USSC to once again get involved.

.

Maestro Pistolero
06-16-2011, 4:23 PM
What in God's name does "in the clothing or in a pocket" mean, if not concealed?

Firemark
06-16-2011, 4:34 PM
It would appear to me that any LE agency that denies a CCW is accepting responsibility and liability for that person's safety:



We know that the police are under no obligation to protect us per the above SCOTUS decision(the part in Red above). However, the supremes left open (rather concisely) those conditions whereby the police ARE liable for our protection(bold & underlined above).

Now, if I apply to my local CLEO and my county sheriff for a CCW permit, and am subsequently denied a permit, under this decision, would those law enforcement agencies become instantly responsible for my personal security via this clause: "...from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty."? Heller & McDonald established that Keep, Bear, and Self-Defense as fundamental, individual, civil rights, i.e. Liberties. A CCW denial is a Liberty denial.

It looks to me like law enforcement agencies are opening themselves up to giant amounts of personal injury liability each time they deny a CCW. I could see a cottage industry developing for personal injury attorneys who pursue these types of cases. Imagine how many people would apply for a CCW just on the outside chance they got hurt down the line and could sue for damages in the millions.

Unfortunatley or fortunately depending how you look at, Peruta v San Diego judge Gonzales ruled that the sheriff may deny a CCW because in CA the right to keep and bear arms is not being denied as UOC is still available to citizens. The case is on appeal, but beasically CCW's can be denied because one may carry openly. There is another case in Yolo county that is very similar. So I think by their view open carry is the right and CC is the privelege.

choprzrul
06-16-2011, 4:58 PM
Unfortunatley or fortunately depending how you look at, Peruta v San Diego judge Gonzales ruled that the sheriff may deny a CCW because in CA the right to keep and bear arms is not being denied as UOC is still available to citizens. The case is on appeal, but beasically CCW's can be denied because one may carry openly. There is another case in Yolo county that is very similar. So I think by their view open carry is the right and CC is the privelege.

Even then, because of CA's GFSZ law, the UOC'er must lock up the sidearm while within that zone. Per Deshaney, at that point the government must provide for that denied individual's self defense due to "...the limitations which it has imposed on his freedom to act on his own behalf...". This is the beauty of it. They are now responsible for my self defense because the state has imposed restraints on my ability to act on my own behalf. Failure by the state to protect me when I am any place that I am not allowed to carry a functional firearm for the purpose of self defense, becomes a potential liability via lawsuit for the government.

All it will take is 1 successful lawsuit somewhere in the nation for this to all fall apart for these gun restrictions.

.

Californio
06-16-2011, 5:10 PM
choprzrul, good find they can't have it both ways.


According to Sheriff Bill Brown: "Make no mistake. These cuts will result in diminished public safety in Santa Barbara County."

This is Sheriff Brown on the current budget problems, the same Sheriff Brown who will not issue CCW permits.

choprzrul
06-16-2011, 5:23 PM
choprzrul, good find they can't have it both ways.


According to Sheriff Bill Brown: "Make no mistake. These cuts will result in diminished public safety in Santa Barbara County."

This is Sheriff Brown on the current budget problems, the same Sheriff Brown who will not issue CCW permits.

Thanks, but I am awaiting judgment from the Right People before deciding how effective this approach will be in the future.

choprzrul
06-16-2011, 6:01 PM
For review, I have copied from the actual text (and more of it) below and not the syllabus. This is a fine line I believe, one that pivots upon the individual's ability to protect himself with or without the limitations placed upon his liberties. If the individual is simply unable to provide for his own self defense without a weapon, and the state denies a CCW, then this may kick in. Anyway, here more of the decision:

Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain "special relationships" created or assumed by the State with respect to particular individuals. Brief for Petitioners 13-18. Petitioners argue that such a "special relationship" existed here because the State knew that Joshua faced a special danger of abuse at his father's hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Id. at 18-20. Having actually undertaken to protect Joshua from this danger -- which petitioners concede the State played no part in creating -- the State acquired an affirmative "duty," enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (1952), as to constitute a substantive due process violation. Brief for Petitioners 20. [n4] [p198]

We reject this argument. It is true that, in certain limited circumstances, the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals. In Estelle v. Gamble, 429 U.S. 97"]429 U.S. 97 (1976), we recognized that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process Clause, 429 U.S. 97 (1976), we recognized that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process Clause, Robinson v. California, 370 U.S. 660 (1962), requires the State to provide adequate medical care to incarcerated prisoners. 429 U.S. at 103-104. [n5] We reasoned [p199] that, because the prisoner is unable "‘by reason of the deprivation of his liberty [to] care for himself,'" it is only "‘just'" that the State be required to care for him. Ibid., quoting Spicer v. Williamson, 191 N. C. 487, 490, 132 S.E. 291, 293 (1926).

In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis beyond the Eighth Amendment setting, [n6] holding that the substantive component of the Fourteenth Amendment's Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their "reasonable safety" from themselves and others. Id. at 314-325; see id. at 315, 324 (dicta indicating that the State is also obligated to provide such individuals with "adequate food, shelter, clothing, and medical care"). As we explained:

If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed -- who may not be punished at all -- in unsafe conditions.

Id. at 315-316; see also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (holding that the Due Process Clause requires the responsible government or governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended by the police).

But these cases afford petitioners no help. Taken together, they stand only for the proposition that, when the State takes a person into its custody and holds him there [p200] against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing. See Youngberg v. Romeo, supra, at 317 ("When a person is institutionalized -- and wholly dependent on the State[,] . . . a duty to provide certain services and care does exist"). [n7] The rationale for this principle is simple enough: when the State, by the affirmative exercise of its power, so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, [U]and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble, supra, at 103-104; Youngberg v. Romeo, supra, at 315-316. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, at 103 ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met"). In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.

The CA PC says that I can carry in my home and at my business. The state restrains my individual freedom to act on my own behalf beyond those confines. I am a 60% disabled veteran that has been denied CCW. This means that, beyond my home & business, I have been separated from my individual civil rights to Keep and Bear functional firearms for the purpose of self defense by the state. The state has acted to restrain, now they must step up and take full responsibility for my safety and well being outside my home & business.

.

Tripper
06-16-2011, 6:15 PM
I agree

Maestro Pistolero
06-16-2011, 6:33 PM
How the hell did you find this? It directly supports what many of us have been hoping will be the criteria used to define sensitive places, i.e. that if government suspends the right to self defense that it must assume that burden on behalf of the citizen.

Truly a great find.

Anchors
06-16-2011, 7:52 PM
Awesome argument.
Tagged for future developments.

choprzrul
06-16-2011, 9:47 PM
Nearly 800 views on this thread, but yet not a single one of the Right People have weighed in yet. Curiously absent they are.

.

Maestro Pistolero
06-16-2011, 9:55 PM
Nearly 800 views on this thread, but yet not a single one of the Right People have weighed in yet. Curiously absent they are.

.
Mmmmm hmmmmm. :whistling::

command_liner
06-16-2011, 9:55 PM
Nearly 800 views on this thread, but yet not a single one of the Right People have weighed in yet. Curiously absent they are.

.

Noticed this anomaly in the force too I did.

hoffmang
06-16-2011, 9:59 PM
It doesn't say what you think it means.

For good reasons, absent we are.

However, what Crom said above is very true. Having a 12250/26150 license denial is about the next best thing to having a 12250/26150 license.

-Gene

choprzrul
06-16-2011, 10:07 PM
Watching closely they were.....

.

Maestro Pistolero
06-16-2011, 10:20 PM
Skeptical I am, fairly clear it seems. But little I know. :D

Firemark
06-16-2011, 11:31 PM
are you guys all channeling Yoda or just decided to write English in German syntax sentence structure?

OOOPPSS sorry.... "Channeling Yoda you all are, or German syntax sentence structure in English decide to write???"

choprzrul
06-17-2011, 5:01 PM
It doesn't say what you think it means.

For good reasons, absent we are.

However, what Crom said above is very true. Having a 12250/26150 license denial is about the next best thing to having a 12250/26150 license.

-Gene

Great weight Gene's comments carry, but fully convinced not I.

I can see where the supremes are wanting this decision to go. They are limiting the government's liability & scope for when they are responsible for a person's security. Merely having knowledge of a person's risks and/or threats is not enough. The government must have placed themselves in a position of having separated the individual from their ability to be in a position to act in their own self defense:

Q1: Is that not what DeShaney is actually about?


Now, if I extract the exact wording from the decision that defines this position, I am left with:

In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf --....restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.

Q2: Am I correct, that the onus of the State's action to deprive one's personal liberty, is the triggering mechanism in this decision for Due Process?

Due Process for an individual who has never applied for a CCW is not available because the state has provided an avenue by which the individual is able to retain his civil rights of carrying a functional firearm for the purpose of self defense.

However, once the state has denied the CCW applicant, the applicant has been separated from his civil right to effectively defend himself in most life or death situations.

I am arguing that it is the State's actions, through denial of the individual's CCW application, "...which is the "deprivation of liberty" triggering the protections of the Due Process Clause...".


Q3: Where am I wrong?


PM me if you don't want to post strategy, but I would really like to understand why the State does not assume responsibility for my safety once they separate me from my civil rights.

Inquisitive am I.

.

G60
06-17-2011, 7:54 PM
Having a 12250/26150 license denial is about the next best thing to having a 12250/26150 license.

-Gene

If the cost of the initial application is not an issue, would you suggest applying even knowing I would probably be denied (for inadequate GC, not any other reasons)?

I'm more interested in if it can somehow benefit the sunshine initiative rather than personally.

r3dn3ck
06-17-2011, 8:17 PM
epic win

choprzrul
06-17-2011, 8:39 PM
CA PC 12250 reference has me confused.

.

ke6guj
06-17-2011, 8:55 PM
CA PC 12250 reference has me confused.

.either Gene had a typo/CRS moment and typed 12250 instead of 12050, OR, he is working on getting a 12250 MG license :D

hoffmang
06-17-2011, 9:18 PM
12150/26150 was what I meant, but I'm trying to reorient my brain to the new numerals...

I do not recall the correct Supreme Court case off hand, but it was cited widely in Heller and I'm sure you can find it in Alan's brief at DCGuncase.com (http://www.dcguncase.com/). The government has no duty to protect you at all in the general case. There are only certain very small exceptions to that rule.

-Gene

socalblue
06-17-2011, 9:25 PM
Q2: Am I correct, that the onus of the State's action to deprive one's personal liberty, is the triggering mechanism in this decision for Due Process?

Due Process for an individual who has never applied for a CCW is not available because the state has provided an avenue by which the individual is able to retain his civil rights of carrying a functional firearm for the purpose of self defense.

However, once the state has denied the CCW applicant, the applicant has been separated from his civil right to effectively defend himself in most life or death situations.

I am arguing that it is the State's actions, through denial of the individual's CCW application, "...which is the "deprivation of liberty" triggering the protections of the Due Process Clause...".

Q3: Where am I wrong?

.

The trigger is a specific act by the government resulting in a "deprivation of liberty". When restraining an individuals ability (freedom) to act on his own behalf the government now assumes the responsibility & corresponding liability. In simple terms this would most often be a custodial relationship with the individual (IE: arrest/detention, jail/prison, mental ward, etc.).

Quoting the decision: "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf --....restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means."

choprzrul
06-17-2011, 9:45 PM
@socalblue: exactly my point.

When a CA CCW is denied, the state has left me with zero avenues by which to defend myself. They have separated me from my liberties. Like the prisoner, the only path by which to rejoin my liberty is to engage in unlawful actions (unpermitted CCW for me and prison break for a prisoner). Ironically, like the prisoners, those unlawful actions (when caught) serve to further separate us from the exact liberty we sought to rejoin.


The potential severity of not being in a position to defend oneself raises the bar to a level where due process is appropriate.


Pre Heller/Mcdonald (before the 2A was affirmed as a civil right) the Due Process bar could have never been met. However, we are now dealing with a civil rights issue. The government (well, everyone as far as that goes) cannot separate me from my civil rights without being ready to accept responsibility for the results of that separation. **EDIT**: As the supremes addressed in their decisions, the states may make reasonable laws regulating firearms, but as they found in Heller, they cannot completely separate us from exercising a civil right. CA has indeed given us a reasonable path (in their eyes anyway) to enjoining our civil right to bear arms through CCW permits. Having that path means that the bar for Due Process cannot be met, and as such the government has no responsibility for our individual safety. I completely agree with this stance as I firmly believe that I am responsible for my own safety and security.

The problem arises when an otherwise unprohibited citizen seeks to enjoin himself with his 'bear' civil rights. LOC is banned, UOC means you are carrying a non-functional firearm (isn't that what started Heller in the first place?), and lastly CCW is regulated through the permit process. This leaves the citizen with no other avenue but that of CCW. When the citizen applies and is subsequently denied the permit to CCW; he has now become 100% separated from his 'bear' civil rights. The action of the government (permit denial) has directly resulted in this separation. It is exactly that action which brings the bar of Due Process within reach for the citizen. The simple denial is not enough however. The citizen must actually suffer grave bodily injury or death in a situation where the exercise of self defense using a firearm would have potentially mitigated the risk. At that point, the citizen has borne injury directly stemming from an action by the government that has separated him from his civil rights.

The sad and unfortunate part of all of this is that there is no path to remedy outside of grave bodily injury or death. I firmly believe, however, that once this is affirmed by the supremes, and the flood gates of litigation are thrown open, only then will government entities relinquish their draconian hold on our civil rights. ** End Edit **

When agrieved, pay they will.

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downfall
06-18-2011, 7:42 AM
How long will that take? are we looking at litigation in the future to restore the civil rights of our grandchildren? I am all for fighting in the courts to restore our civil rights, but it gets awfully difficult to stay in the fight when you look over the border of the DPRK into a free state and see citizens enjoying rights we subjects have to fight long and hard for.

As time goes on, without a significant and substantive legal win for California subjects 2A rights, it becomes difficult to continue to support the effort and makes more sense to jump the wire into freedom.

choprzrul
06-18-2011, 8:45 AM
How long will that take? are we looking at litigation in the future to restore the civil rights of our grandchildren? I am all for fighting in the courts to restore our civil rights, but it gets awfully difficult to stay in the fight when you look over the border of the DPRK into a free state and see citizens enjoying rights we subjects have to fight long and hard for.

As time goes on, without a significant and substantive legal win for California subjects 2A rights, it becomes difficult to continue to support the effort and makes more sense to jump the wire into freedom.

You point is valid downfall. The state is already losing citizens at the rate of 4.4% a year. Economic conditions, social issues, gun rights, property rights, etc, etc..... Pick your issue, people are getting fed up and leaving.


However, keep in mind, my approach would have implications nationwide and would put governments on notice that they dare not step on civil rights of the people. Granted, the effect of this would be most pronounced in states that are the worst violators.

The rest of us can expect ramifications when our actions get someone else hurt or killed. Why should it be any different for the government?

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press1280
06-18-2011, 1:31 PM
DeShaney might be a nice talking point in a SCOTUS decision overturning may-issue, but it certainly won't do it all by itself or even be the main point.

Maestro Pistolero
06-18-2011, 1:44 PM
DeShaney might be a nice talking point in a SCOTUS decision overturning may-issue, but it certainly won't do it all by itself or even be the main point.

As pointed out, it would seem relevant to GFSZs and sensitive places.

choprzrul
06-18-2011, 3:24 PM
@press1280: The point of this is not to use DeShaney to overturn any current gun regs. Its usefullness is in providing a path for compensation when the government has separated the citizen from his civil rights and the citizen suffers harm as a result. I would have thought that this should be readily clear after 2 pages of dialog.

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Maestro Pistolero
06-18-2011, 4:15 PM
@press1280: The point of this is not to use DeShaney to overturn any current gun regs. Its usefullness is in providing a path for compensation when the government has separated the citizen from his civil rights and the citizen suffers harm as a result. I would have thought that this should be readily clear after 2 pages of dialog.That's a point, but there are other points as well. It's usefulness for any purpose has yet to be seen, but it seems applicable from several angles. The thread is subtitled CCW implication, which might encompass many related issues, don't you think?