ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
TOP 100 WISCONSIN CRIMINAL DEFENSE LAWYER
​414-530-5214
  • Home
  • References
  • PEER ENDORSEMENTS
  • PAST CASES
  • Blog
  • Contact
  • KNOW YOUR RIGHTS
  • How to deal with police
  • Practice Areas
  • About
  • Criminal Law Links
  • News

Discussion of current legal issues

Henry Nellum case selected by USA Network as a compelling homicide trial to keep an eye on in 2018

Button Text

HAS THE GOVERNMENT CAUSED MORE GUNS TO BE ON THE STREET BY DECIDING THE GOVERNMENT HAS NO DUTY TO PROTECT YOU?

11/4/2016

1 Comment

 
Picture

In moral and political philosophy, the social contract or political contract is a theory, originating during the Age of Enlightenment, that typically addresses the questions of the origin of society and the legitimacy of the authority of the state over the individual.  Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights.  The term takes its name from The Social Contract a 1762 book by Jean-Jacques Rousseau which discussed this concept.  Rousseau argues a citizen cannot pursue his true interest by being an egoist but must instead subordinate himself to the law created by the citizenry acting as a collective. 

Thus, the enforcement of criminal law is not a restriction on individual liberty: the individual, as a citizen, explicitly agreed to be constrained if, as a private individual, he did not respect his own will as formulated in the general will.  These theories are important since, as creatures of the Age of Enlightenment, our Founding Fathers incorporated them into the design of our government.

So what happens to the legitimacy of our government if the government revokes the contract by saying it has no duty to protect you? 

Importantly in a couple of US Supreme Court decisions the Court has said the government does not have to care about you.  In Castle Rock v. Gonzales, 545 U.S. 748 (2005), the Court ruled, 7–2, that a town and its police department could not be sued under 42 U.S.C. §1983 for failing to enforce a restraining order, which had led to the murder of a woman's three children by her estranged husband.  The Court's majority opinion by Justice Antonin Scalia held that enforcement of the restraining order was not mandatory under Colorado law; were a mandate for enforcement to exist, it would not create an individual right to enforcement that could be considered a protected entitlement under the precedent of Board of Regents of State Colleges v. Roth; and even if there were a protected individual entitlement to enforcement of a restraining order, such entitlement would have no monetary value and hence would not count as property for the Due Process Clause.  Likewise, the U.S. Supreme Court South v. Maryland, 59 U.S. 396 (1855) found that law enforcement officers had no affirmative duty to provide such protection. In Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) the Court of Appeals held, "...there is no Constitutional right to be protected by the state against being murdered by criminals or madmen."

Thus, the Supreme Court found that domestic violence victims do not have a federal right to police enforcement of their protective orders.  Some have argued that this decision effectively gives law enforcement a green light to ignore restraining orders.  As Justice Stevens wrote in the dissent, "the Court gives short shrift to the unique case of [statutes requiring police enforcement] in the domestic violence context."

Castle Rock v. Gonzales is the latest in a lineage of high-profile cases, such as DeShaney v. Winnebago County, 489 U.S. 189 (1989) in which lawsuits against governmental entities for failure to prevent harm to an individual were dismissed.  Since the police are not obliged to protect us, say gun rights advocates, it is argued that adults need the ability to defend themselves. Thus, no law or policy should impede the access to gun ownership to protect ourselves and family.

1 Comment
www.brianrosslaw.com/ link
1/11/2017 01:51:02 am

The Supreme Court found that abusive behavior at home casualties don't have a government appropriate to police authorization of their defensive requests. Some have contended that this choice adequately gives law authorization a green light to overlook controlling request

Reply



Leave a Reply.

    Author

    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

    Archives

    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    February 2021
    January 2021
    November 2020
    October 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    October 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    Categories

    All

    RSS Feed

Powered by Create your own unique website with customizable templates.