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Court: Shooting justified/ Reverses awards for man's siblings(jury,witnesses,judge-WRONG)
RICHMOND TIMES DISPATCH ^ | 12-4-02 | ALAN COOPER

Posted on 12/04/2002 4:44:41 AM PST by putupon

Edited on 07/20/2004 11:48:08 AM PDT by Jim Robinson. [history]

A federal appellate court yesterday upheld a jury verdict that Hanover County Deputy Sheriff Chris Land acted reasonably when he shot and killed Thomas Allen Figg in January 2000.

The 4th U.S. Circuit Court of Appeals reversed relatively small jury awards for Figg's sister and one of his brothers, who contended that Land's supervisors acted illegally in ordering them detained for three hours after the shooting.


(Excerpt) Read more at timesdispatch.com ...


TOPICS: Crime/Corruption; Front Page News; News/Current Events; US: Virginia
KEYWORDS: cops; dui; jury

1 posted on 12/04/2002 4:44:41 AM PST by putupon
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To: putupon
He was drunk, she was drunk, they were drunk... But the home owner was shot and killed in his own yard for the crime of moving towards a police man. So if he is moving away he is escaping and if he is moving towards he is attacking and if he stands still he is plotting?

Glad I don't live there.
2 posted on 12/04/2002 5:13:20 AM PST by American in Israel
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To: American in Israel
Hmmm, another "righteous shooting" I guess the police never lie! Fortunately the others were drunk to lend credence to the cop's story. If the guy was pepper sprayed in the face, how could he see the cop in the woods? Does the blinding spray dissapate that quickly? Just asking.
3 posted on 12/04/2002 6:04:52 AM PST by poet
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To: American in Israel
he is attacking and if he stands still he is plotting?

this incident was even dirtier than you could tell from this article. you could tell when it happened that it stunk to high heaven. this particular county has a long history of guilty connected people getting away with stuff and the innocent getting the shaft. a guy i went high school with's brother was cop there, hit a black guy in the back who wasn't wanted for anything at 100 yards with three warning shots fired in the air in a "justified" shooting back in the late '70's and was later promoted to sgt.. this is the same place where the "beltway snipers" shot the guy at the ponderosa steak house. if they knew the right people, they could probably get away with it.

4 posted on 12/04/2002 6:50:48 AM PST by putupon
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To: putupon
Look at this federal judges decision versus a jury decisions from the "presumption of liberty," and you can then understand why there are two different decisions.

From the the view of a "presumption of liberty" for citizens, the jury had decided that "witnesses" were telling the truth when they stated that "Tom Figg had stopped running and was on the ground when Land shot him."

In addition, that "witnesses" were telling the truth when they stated that "Land pepper-sprayed Figg."

The jury did not believe the officer and the medical examiner's testimony that 1)Figg had attacked the officer, per the officer's testimony and 2) that Figg was upright and moving when shot three times by the officer.

However, when this case is heard on appeal, where is the "presumption of liberty?"

For the appeals judge, suddenly the officer's and medical examiner's testimony has more weight that the "witnesses" testifying under oath to twelve jurors.

5 posted on 12/04/2002 9:29:42 AM PST by tahiti
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To: putupon
Look at this federal judges decision versus a jury decisions from the "presumption of liberty," and you can then understand why there are two different decisions.

From the the view of a "presumption of liberty" for citizens, the jury had decided that "witnesses" were telling the truth when they stated that "Tom Figg had stopped running and was on the ground when Land shot him."

In addition, that "witnesses" were telling the truth when they stated that "Land pepper-sprayed Figg."

The jury did not believe the officer and the medical examiner's testimony that 1)Figg had attacked the officer, per the officer's testimony and 2) that Figg was upright and moving when shot three times by the officer.

However, when this case is heard on appeal, where is the "presumption of liberty?"

For the appeals panel judges, suddenly the officer's and medical examiner's testimony has more weight that the "witnesses" testifying under oath to twelve jurors.

6 posted on 12/04/2002 2:58:44 PM PST by tahiti
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To: tahiti
Sorry man, you just failed civil procedure.

First, the Jury found that the officer acted reasonably. The Court upheld that ruling. Thus, the appellate judge has upheld the jury on that issue. The only facts at issue here in this poorly written story is the justification for detaining the the other two members, each of whom won small awards from the jury for being "wrongfully detained."

Unfortunately, the author of this piece gives us nothing as to how the judge reached that decision. Undoubtedly, the opinion of the Court tells the story. First, to over-rule a jury's findings of fact under Virginia law is VERY difficult to due. It is said that a party who has procurred a jury verdict, upheld by the trial judge, occupies the strongest legal position known to man before an appellate court. However, a judge may over-rule a jury in Virginia if, in light of the evidence, no reasonable jury could have concluded otherwise. The standard is very high, and the Fourth Circuit is not known for being activist judges.

As I said, we can't really pick apart the rationale here as to why those two were justifiably held for three hours, without knowing the facts and law on which the decision was based.

Make no mistake here though, the Apeals Court blessed the jury finding with respect to the reasonableness of the police action in shooting the man. That means, at a minimum, the jury did not believe the witnesses and gave them very little credibility.

As for the "presumption of liberty," that is a new standard on me. I don't know what that is, and it is not a recognized doctrine in common law, statutory construction, or Virginia Civil Proceedure. What ever you do, don't write that on your bar exam!

The guts of this story is that the Court found, countrary to the Jury, that the police were right to detain the two individuals. In addition, the Court found that the other guy, had a right to a trial on the issue of whether his detention was proper. That new trial obviously had something to do with the Jury's failure to fill out the verdict form on that issue.

7 posted on 12/04/2002 3:34:27 PM PST by Iron Eagle
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To: Iron Eagle
"As for the "presumption of liberty," that is a new standard on me. I don't know what that is, and it is not a recognized doctrine in common law, statutory construction, or Virginia Civil Proceedure. What ever you do, don't write that on your bar exam!"

I am not surprised by your remark above. See below for the explanation, I know it is long, but worth reading.

The author is Randy E. Barnett, Austin B. Fletcher Professor of Law, Boston University School of Law.

The answer to this concern lies in something like the "general right to liberty" that Robert Bork once searched for-only it is more accurate to call it a presumption of liberty.

THE PRESUMPTION OF LIBERTY

As long as they do not violate the rights of others (as defined by the common law of property, contract and tort), persons are presumed to be "immune" from interference by government. This presumption means that citizens may challenge any government action that restricts their otherwise rightful conduct, and the burden is on the government to show that its action is within its proper powers or scope. At the national level, the government would bear the burden of showing that its acts were both "necessary and proper" to accomplish an enumerated function, rather than, as now, forcing the citizen to prove why it is he or she should be left alone. At the state level, the burden would fall upon state government to show that legislation infringing the liberty of its citizens was a necessary exercise of its 'police power'-that is, the state's power to protect the rights of its citizens.

Any society such as ours that purports to be based on a theory of limited government already assumes that legislation must be a proper exercise of government power. The presumption of liberty simply requires that when legislation or executive actions encroach upon the liberties of the people, they may be challenged on the grounds that they lack the requisite justification. And a neutral magistrate must decide the dispute. As Madison observed in The Federalist No. 10:

No man is allowed to be the judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay, with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? and what are the different classes of legislators but advocates and parties to the causes which they determine? . . . . Justice ought to hold the balance between them. 26 When legislation encroaches upon the liberties of the people, only review by an impartial judiciary can ensure that the rights of citizens are protected and that justice holds the balance between the legislature or executive and the people.

Lest anyone think this point is obvious let me hasten to note that today the presumption used by the Supreme Court is precisely the reverse. According to what the Court calls the 'presumption of constitutionality," legislation will be upheld if any "rational basis' for its passage can be imagined, unless it violates a "fundamental" right-and liberty has not been deemed by the Court to be a fundamental right. As the Court stated in United States v. Carolene Products Co.: 27 "There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . ." 28 In other words, the enumerated rights may narrow the presumption of constitutionality, but one of the unenumerated rights retained by the people will have no such power-limiting effect.

While the presumption of liberty is not the only implication of the Ninth Amendment, it provides a practical and powerful method of protecting unenumerated rights. As lawyers well know, the outcome of legal disputes is often determined by the burden of proof. For example, the First Amendment has been held to impose a serious burden on the government to justify any of its actions that restrict the natural right of free speech. In countless cases, this "presumption of free speech" has effectively protected this retained but enumerated right. The Ninth Amendment simply extends the same protective presumption to all other exercises of liberty.

Although originally the Ninth Amendment, like the rest of the Bill of Rights, was most likely intended by the Framers to be enforced only against the federal government, this was not because it was thought that the people had surrendered all their rights to state governments-a suggestion belied by the swift incorporation into most state constitutions of provisions identical to the Ninth Amendment. Indeed, many rights such as the right of conscience or the right to acquire property-were thought to be unalienable, which means that the people could not surrender them to any government even if they wanted to. Rather, the Congress and the federal courts originally lacked jurisdiction to protect the retained -privileges or immunities" of citizens from abuses by their states. As we all know, this arrangement was fundamentally changed by the enactment of the Fourteenth Amendment after the civil war. Today, if a state government infringes upon a right the people retained against their respective states, there is no Jurisdictional barrier preventing Federal protection of this right.

APPLYING THE PRESUMPTION OF LIBERTY TODAY

To see how a presumption of liberty might operate today, consider Congress's power under Article 1, Section 8 to 'establish post offices.' Having exercised this establishment power, Congress is free under the Necessary and Proper clause to regulate the operation of its post offices in any manner it sees fit. However, what happens when Congress, allegedly pursuant to its postal powers, goes beyond its power to administer its own offices and claims the further power to establish a postal monopoly, as it has? According to the now prevailing presumption of constitutionality, Congress would be free to establish a monopoly unless either potential competitors or consumers of postal services could prove that this claimed government power violates a fundamental right. For example, competitors might allege a fundamental right to carry first class mail, while recipients of mail could claim they had a fundamental night to send first class mail by an), means they chose. Because these rights sound trivial rather than fundamental they are easy to disparage-almost as easy to disparage as the trifling right to wear a hat or go to bed when one pleases. Consequently, courts have not barred the Congress from establishing its monopoly or even inquired very seriously, as to whether such laws are truly necessary or proper. With judges lacking a proper view of the Ninth Amendment, today the outcome of such a lawsuit would be virtually pre-determined: the government wins and the citizen loses.

A presumption of liberty, however, would shift the burden of proof from the citizen to the government. Instead of imposing the burden on the citizen to establish the violation of a "fundamental" right, a burden would be imposed on the government, in this case upon Congress, to show a compelling why it is both n and proper to grant its own post office a legal monopoly. In enacting the Constitution, the people retained their unenumerated right to establish their own private post offices if they so chose. They neither expressly nor impliedly surrendered this right up to the general government. The Ninth Amendment serves as an ever-present reminder that the mere fact that such a right is left out of the Bill of Rights ought not to suggest otherwise.

In a speech before the second House of Representatives, the author of the Ninth Amendment, James Madison himself, used it in a strikingly similar fashion to object to the pending bill to establish a single national bank on the grounds that the bill was unconstitutional. His usage also helps clarify the relationship between the Ninth Amendment's protection of the rights retained by the people and the Tenth Amendment's injunction that: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Madison examined the Constitution at length to see if the power to create such a bank could be found among any of those delegated to the government and be concluded that 'it is not possible to discover in [the Constitution] the power to incorporate a Bank." 29 He then considered whether the proposed bank might be justified under the Necessary and Proper Clause 30 as a means of executing the Borrowing Power. 31 "Whatever meaning this clause may have," Madison began, "none can be admitted, that would give unlimited discretion to Congress. Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers." 32

Madison's argument here reflects one of the reasons he had offered for adopting a bill of rights during his speech the year before to the first House of Representatives in which he proposed amendments to the Constitution: It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, . . . in the constitution of the United States, there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution the powers vested in the Government of the United States, or in any department thereof. 33 Madison contended that a bill of rights was one way to police abuses of this lawmaking discretion.

In evaluating whether the Necessary and Proper Clause justified the claimed power to create a national bank, Madison contrasted the requirement of necessity with that of mere convenience or expediency. 'But the proposed bank," he said: could not even be called necessary to the Government; at most it could be but convenient. Its uses to the Government could be supplied by keeping the taxes a little in advance; by loans from individuals; by the other Banks, over which the Government would have equal command; nay greater, as it might grant or refuse to these the privilege (a free and irrevocable gift to the proposed Bank) of using their notes in the Federal revenues. 34 Notice that Madison was not simply making what would now be called a "policy" choice. Earlier in his address to the House, Madison did address the policy issues raised by the proposal when he 'began with a general review of the advantages and disadvantages of Banks." 35 However, "[i]n making these remarks on the merits of the bill, he had reserved to himself the right to deny the authority of Congress to pass it." 36 Rather, in the passage I quoted, Madison is making the constitutional argument that these other means of accomplishing an enumerated object or end are superior precisely because they do not entail the violation of the rights retained by the people and are therefore to be preferred in principle. In particular, these measures do not involve the grant of a monopoly, "which," in Madison's words, "affects the equal rights of every citizen." 37

In other words, there is a difference in principle between these alternative means; just as there is a difference in principle, not merely policy, between drafting citizens and paying volunteers as the congressional power to "raise and support Armies..." 38 Although Article I, Section 8 delegates this power to Congress, when it chooses a means of accomplishing this end that intrudes upon the liberties of the people, as a military draft does, then it must justify this rights infringement by showing that its acts are genuinely necessary and proper. The government must show that it cannot accomplish its constitutionally delegated end by means that do not trespass upon the rights retained by the people.

Finally, in his bank speech Madison also questioned the proposed exercise of the Necessary and Proper Clause on the grounds that the power claimed was highly remote from any enumerated power. "Mark the reasoning on which the validity of the bill depends," he observes: To borrow money is made the end, and the accumulation of capitals implied as the means. The accumulation of capitals is then the end, and a Bank implied as the means. The Bank is then the end, and a charter of incorporation, a monopoly, capital punishments, &c., implied as the means. If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy. The latitude of interpretation required by the bill is condemned by the rule furnished by the Constitution itself. 39 As authority for this "rule" of interpretation, Madison cited the Ninth Amendment: The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for. . . . He read several of the articles proposed, remarking particularly on the llth [the Ninth Amendment] and 12th [the Tenth Amendment], the former, as guarding against a latitude of interpretation; the latter, as excluding every source of power not of exercising the within the Constitution itself. 40

Thus, Madison viewed the Ninth and Tenth Amendments as playing distinct roles. Madison viewed the Tenth Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people") as authority for the rule that the Congress could only exercise a delegated power. For example, in the illustrations I have used, Congress could not establish a post office or raise and support armies without a delegation of power to pursue these ends. In contrast, Madison viewed the Ninth Amendment as providing authority for a rule against the loose construction of these powers-especially the Necessary and Proper Clause-when legislation affects the rights retained by the people. As Madison concluded in his bank speech: "In fine, if the power were in the Constitution,the immediate exercise of it cannot be essential; if not there, the exercise of it involves the guilt of usurpation. . . ." 41

In my examples, because a postal monopoly and a military draft infringe upon the rightful liberties of the people, these are suspect means for pursuing delegated ends. 'nose claiming that legislation restricting the rightful liberties of the people falls under a delegated power have the burden of showing that it is a genuinely n and proper exercise of such a power. As I have argued elsewhere, constitutional rights-including unenumerated rights-operate both as "means-constraints" and as "ends-constraints." 42 Once the Ninth Amendment is viewed as establishing a presumption of liberty thereby placing a burden of Justification on the government, every action of government that infringes upon the rightful liberties of the people can be called into question. Is it really necessary that persons-particularly poor persons-obtain licenses requiring extensive testing in such subjects as chemistry before they may work as beauticians? Is it really necessary that government limit the number of taxicabs it licenses so that the price of taxicab medallions in some cities reaches $10-20,000 or even higher? Or are all these and other similar measures really ways by which a privileged few seek to eliminate lower priced competition? Is it really necessary to criminalize the sale and use of intoxicating substances, or is a 'drug-free' society better achieved in ways that do not infringe upon the liberties of the people-perhaps by the sort of education and social pressure that is currently being used so effectively to combat the use of nicotine in cigarettes and the abuse. of alcohol. Even the current government restrictions that limit the practice of law to those who have attended three years of law school would not be beyond challenge and scrutiny.

None of these or any other Ninth Amendment claim can be decided in the abstract-by which I mean without taking into account the specifics of particular legislation and the factual context in which it is applied. What the Ninth Amendment requires, however, is that such claims as these be evaluated when liberty-restricting legislation is challenged by a citizen. Adopting the presumption of liberty would make this requirement effective.

This is not to say that the government would never be able to meet its burden. I fully expect that if a presumption of liberty is established, the courts would find that government has met its burden far more often than they should. We must never forget that the Supreme Court once upheld the government's power to imprison American citizens of Japanese descent in prison camps because of the threat to national security these citizens allegedly posed. 43 Judicial review is not a panacea for protecting liberty.

Nor does the presumption of liberty establish a license to do whatever one wishes. Liberal political theorist John Locke put the matter as follows: But though this be a State of liberty, yet it is not a State of License . . . . The State of Nature has a Law of Nature to govern it, which obliges everyone: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. 44

As I mentioned earlier, justice, which is to say rights, defines the boundaries within which one may do as one wishes. According to this conception of liberty, one cannot permissibly infringe upon the rightful domains of others. According to Locke, in the state of nature, "all Men may be restrained from invading others Rights, and from doing hurt to one another." 45 The common law of property, contracts, and torts has traditionally defined the extent and nature of these boundaries. Tortious conduct is not a "rightful" exercise of one's liberty; one has no constitutional right to commit trespass upon the land of another. Provided that one is acting rightfully in this sense, however, a presumption of liberty would require government to justify any interference with such conduct.

Finally, a presumption of liberty does not authorize judges to usurp either legislative or executive functions. Protecting the rights of individuals and associations to act or refrain from acting in ways that do not violate the common-law rights of others, neither empowers judges to create new "positive rights" nor authorizes them to enact taxes to pay for such rights. Judges may only strike down offending legislation-and judicial negation is not legislation. Assuming they have the political will, the other branches of government have more than enough power to defend themselves from judicial encroachment.

CONCLUSION: THE EQUAL PROTECTION OF LIBERTIES AND THE FUTURE OF THE NINTH AMENDMENT

What is the future of the Ninth Amendment? In law, as in most areas of life, betting that the future is going to be pretty much like the past is usually the safest wager. If this turns out to be true, then the Ninth Amendment, which has been so tragically neglected by the Supreme Court over the past two centuries, is doomed to remain in it state of desuetude. But while betting against change may be the most conservative gamble, it is often a losing one. The past twenty years has witnessed a trend in the direction of a revived Ninth Amendment. In particular, a renewed interest in the views of the Framers of the Constitution and of the Civil War amendments has caused those who favor an expansive judicial protection of fundamental rights to focus attention on the original intent of the Ninth Amendment. Moreover, the Framers' concept of natural rights is no longer in disrepute. If the Senate confirmation hearings of Judge Robert Bork to the Supreme Court of the United States was a watershed development in the legitimation of the Ninth Amendment, the confirmation hearings of Justice Clarence Thomas may prove to have a similar effect on the legitimacy of natural rights. 46

Although, with the addition of Justices Scalia, Kennedy, Souter, and Thomas to the Supreme Court and the elevation of William Rehnquist to Chief Justice, "conservatives" appear now to be in firm control of the Court, the type of "judicial conservatism" that will eventually emerge in the third century of the Bill of Rights is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation? Or will it be a more libertarian conservatism that views the courts as neutral magistrates empowered to protect the individual from the government? 47 Which of these conservatisms comes eventually to prevail will depend, perhaps in principal part, upon whether a majority of the Court ran be persuaded to take James Madison's Ninth Amendment and its pivotal role in constitutional interpretation to heart.

Which judicial philosophy prevails will also depend upon whether proponents of the Ninth Amendment will take a more principled stance towards so-called fundamental liberties. The liberties each person holds "fundamental" are imperiled when advocates of some liberties they hold dear are more than willing to deny or disparage the liberties thought fundamental by others. For example, many if not most of those favoring a fundamental right of privacy that includes a woman's "right to chose" to terminate a pregnancy offer no support to and indeed would actively oppose those who favor a fundamental "right to choose" to engage in a lawful occupation-such as driving a taxi cab-free from protectionist economic regulations. And few seem at all concerned with the fundamental "right to choose" whether or not to own a gun or to alter one's mental state by means of substances as alcohol, nicotine, peyote, or heroin. According to this discriminatory methodology, if some choices are deemed fundamental, other rights-respecting choices are vilified and ridiculed.

However, by picking and choosing among all the unenumerable liberties of the people to determine which choices are fundamental and which are not, those who would limit judicial protection to those liberties deemed fundamental are putting courts in the difficult position of establishing a hierarchy of liberties. This contributes to the longstanding fear that any revival of the Ninth Amendment would place courts in the role of a "super-legislature" usurping the functions of other branches. When interpreted as justifying a presumption of liberty, however, I think this fear of the Ninth Amendment is unfounded precisely because such a presumption provides a principled defense of all liberties of the people and removes the courts from having to decide which liberty is truly fundamental and which is not.

In sum, adopting the presumption of liberty would enable us finally to acknowledge the Ninth Amendment's unique constitutional function by resisting legislative or executive usurpation of the unenumerated rights "retained by the people" while, at the same time, avoiding unfettered judicial discretion. The presumption of liberty would permit us finally to remove the ink blot from the Ninth Amendment. I can think of no better way to celebrate its two hundredth birthday.

8 posted on 12/05/2002 3:41:05 PM PST by tahiti
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