Plaintiff Objection To Motion To Dismiss 06-0044

United States District Court for the Eastern District of Arkansas, Northern Division

Don Hamrick, pro se (Private Attorney General) (Non-State Actor) 5860 Wilburn Road Wilburn, AR 72179 PLAINTIFF v.

) ) ) )18 U.S.C. § 1964(c) ) 42 U.S.C. § 1983; § 1985; § 1986; § 1988 ) )

) United Nations, et al c/o Ban Ki-Moon, Secretary General 405 E 42nd Street New York, NY 10017 DEFENDANTS

) Jury Trial Demanded )Damages Sought: )$14.4 million from United States Defendants )$14.4 million from United Nations )

Civil RICO Act Complaint No. 1:06-cv-0044

PLAINTIFF’S OBJECTION TO MOTION TO DISMISS

This case has the potential to be considered as a case of first impression! “A Second Amendment case from a merchant seaman’s perspective examined through federal laws and international law on human rights”

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L IST OF D EFENDANTS United Nations c/o Ban Ki-Moon, Secretary General 405 E 42nd Street New York, NY 10017

President George W. Bush White House 1600 Pennsylvania Ave. Washington, DC 20500

Michael Chertoff, Secretary Department of Homeland Security Washington, DC

Michael Prendergast Associate Director for Security Operations U.S. Department of Transportation 400 7th Street, SW Washington, DC

Admiral Thad Allen Commandant (G-C) U.S. Coast Guard 2100 2nd Street, SW Washington, DC

(1) Judge Reggie B. Walton (2) Judge Ellen Segal Huvelle U.S. District Court for DC 333 Constitution Ave., NW Washington, DC 20001

Dennis Barghaan U.S. Attorney’s Office 2100 Jamieson Ave. Washington, DC 22314

Heather Graham-Oliver U.S. Attorney’s Office Washington, DC

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TABLE OF CONTENTS Motion for Permanent InjunctionAgainst Dept./Transportation & U.S. Coast Guard . . . . . . . . . . . 2 A. IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The 8th CircuitOn the Excessive Use of Summary Judge . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Rule of Liberal Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Pro Se Pleadings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Opposition to Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 What Constitutes a Genuine Issue of Material Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Facts That Support More Than One Inference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 What Constitutes a Genuine Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 What Constitutes a Material Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 What May Be Considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 On Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Res Judicata is Not an Affirmative Defense in This Case . . . . . . . . . . . . . . . . . . . . . . . . . . 8 The Federal Judiciary Warring Against Civil Rights: The Buckhannon Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Disarming the Private Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Private Attorneys General andThe First Amendment . . . . . . . . . . . . . . . . . . . . . . 15 The Procedural Attack on Civil Rights:The Empirical Reality of Buckhannon for the Private Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. DISPUTING DEFENDANTS MOTION TO DISMISS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Exhibit 1. U.S. Coast Guard Letter dated April 19, 2002. . . . . . . . . . . . . . . . . . . . 29 Exhibit 2. U.S. Coast Guard Letter dated May 24, 2002 U . . . . . . . . . . 35 Exhibit 3. U.S. Coast Guard Letter dated April 29, 2003 . . . . . . . . . . . . . . . . . . . 35 Exhibit 4. U.S. Coast Guard Letter dated January 7, 2004 . . . . . . . . . . . . . . . . . 35 Exhibit 5. Docket Report U.S. District Court, DC 1:02-cv-1434-ESH . . . . . . . . . . 35 Exhibit 6. Judge Huvelle Memorandum on Dismissal With Prejudice, Case No. 02-1435-ESH dated October 9, 2002 . . . . . . . . . . . . . . . . . . . . 36 Exhibit 7. Judge Huvelle Order Petition for Writ of Mandamus Denied With Prejudice; Case No. 02-1435, dated October 10, 2002 . . . . . . . . . . . . . . 36 Exhibit 8. Thomson/West Search: Hamrick v. Bush Judgment, DC Circuit No. 02-5334, dated October 28, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Exhibit 9. Judge Reggie B. Walton, Memorandum Opinion on Dismiss With Prejudice, U.S. District Court for DC, Case No. 03-2160, dated August 16, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 v

Exhibit 10. DC Circuit, Order, Case No. 04-56316, dated September 9, 2004, Affirming dismissal of RICO claims but removing “With Prejudice” stigma and Remanding on Second Amendment grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Exhibit 11. DOT Bar Notice, dated September 17, 2004. . . . . . . . . . . . . . . . . . . . 36 Exhibit 12. “In the News!” Article dated May 25, 2002 U . . . . . . . . . . . . 36 Exhibit 14. DOT Bar Notice August 11, 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 II. Judicial Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 III. Plaintiff’s Complaint Does Not Comply With Rule 8(a), Fed.R.Civ.P. . . . . . . . . . . . . . . 45 IV. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s RICO Claim . . . . . . . . . . 45 V. Plaintiff’s Claim for a Writ of Mandamus is Barred By Res Judicata, And Even If It Were Not, Plaintiff Cannot Satisfy the Essential Elements for a Writ of Mandamus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 VI. The Court Lacks Subject Matter Jurisdiction Over Any Constitutional Claims. . . . . . . . 45 VII. Should the Complaint be Construed to Assert Claims Against the Defendants In Their Individual Capacities, such Claims are Barred for Multiple Reasons . . . . . 46 VIII. Any Claims Not Dismissed Should Be Transferred to the U.S. District Court for the District of Columbia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 C. TREATIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 D. Nelson Lund: HAVE GUN , CAN ’T TRAVEL : THE RIGHT TO ARMS UNDER THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV, George Mason University School of Law, Law and Economics Working Paper Series 05-34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 E. CASE LAW AND OTHER AUTHORITIES RELATING TO THE RIGHT TO TRAVEL . . . . . . . . . . . . . . . . . . 70 1. Patricia Johnson; Michael Au France v. City of Cincinnati, 6th Circuit . . . . . . . . . . . . . . 70 2. State v. Burnett (2001), 93 Ohio St.3d 419.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 3. Defining Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

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J UDICIAL N OTICE R E: INITIAL S CHEDULING O RDER! T HERE IS N O R ULING ON D EFENDANT’S M OTION TO D ISMISS! I hereby Object to the Defendants’ Motion to Dismiss. While I am very appreciative for the Court setting the trial date for the week of November 12, 2007 but it appears that the Court has neglected to enter into the Docket Report the Court’s Order Denying the Defendant’s MOTION TO DISMISS that would propel my case toward a trial. While there are many genuine issues of material facts in this case the ultimate and pivotal genuine issue of material fact to all others is the issue of whether an individual U.S. citizen (i.e., a U.S. seafarer as a class of citizens) can exercise two constitutional rights simultaneously under the Bill of Rights simultaneously in interstate and intrastate travel without running afoul of the laws any one of the 50 states or of the laws of the United States. The next most pivotal genuine issue of material fact is whether Capt. J. P. Brusseau’s duty to approve or deny my application for the “National Open Carry Handgun” (United States terminology) or the National Open Carry Small Arms and Light Weapons (United Nations terminology) endorsement on my MERCHANT MARINER ’S DOCUMENT was a discretionary or a ministerial duty. Capt. J. P. Brusseau freely admits there were no federal laws or regulations regarding such an endorsement. My contention is that because their were not lawful guidance for Capt. J. P. Brusseau, it was his Oath of Office compelling him to support and defend the Constitution of the United States that made his duty to approve my requested endorsement a ministerial duty. Under his Oath of Office I did not have the authority to exercise his own discretion in denying my application. There lies the tort. It is my contention that because I am a Free and Natural Person and because I have not given up any of my “Rights” and that travel upon the streets or highways of any city or town in any State by me or upon the interstate between the contigious 48 States is an inalienable “Right.” Therefore, it is my contention that I am not subject to regulation or legislation by the General Assembly of the 50 States on the basis of my right to travel and my right to keep and bear arms in intrastate and interstate travel under the BILL

OF

RIG H TS , the INTERNATIONAL BILL

OF

HUMAN RIGH TS , and the CONVENTION

PREVENTION AND PUNISH MENT OF THE CRIME OF GENOCIDE .

1

ON THE

M OTION FOR P ERMANENT INJUNCTION A GAINST D EPT./T RANSPORTATION & U.S. C OAST G UARD I hereby Motion the Court to issue a Permanent Injunction against the Dept. of Transportation and the U.S. Coast Guard, squashing the DOT’s Bar Notice permanently because its sole purpose was to obstruct justice and to harass in retaliation for my litigation against the U.S. Coast Guard. A. IN GENERAL

THE 8TH CIRCUIT ON THE EXCESSIVE USE OF SUMMARY JUDGE Lucille K. Melvin v. Car-Freshener Corporation, 8th Circuit, No. 06-1279, July 12, 2006, Before BYE, LAY, and RILEY, Circuit Judges. RILEY, Circuit Judge. Lucille K. Melvin (Melvin) appeals from the district court’s1 order granting summary judgment to Car-Freshener Corporation (Car-Freshener) on Melvin’s common law claim of retaliatory discharge in violation of public policy. We affirm. LAY, Circuit Judge, dissenting I respectfully dissent. Melvin has presented sufficient evidence from which a reasonable jury could infer that she was terminated because her injury qualified her for workers’ compensation benefits. Although temporal proximity between protected conduct and discharge is insufficient to establish retaliation under Iowa law, Hulme v. Barrett, 480 N.W.2d 40, 43 (Iowa 1992), temporal proximity coupled with another aggravating factor, however undefined, can support an inference of retaliation for purposes of summary judgment. See Walters v. United States Gypsum Co., 537 N.W.2d 708, 712 (Iowa 1995). Here, Melvin was laid off the same day she qualified for workers’ compensation benefits. Plant production coordinator Chris Walters stated Melvin was laid off because there were no positions available in the pack department. However, Car-Freshener rehired three individuals to work in the pack department just one week prior to Melvin’s layoff. Moreover, Walters later stated Melvin was not placed in the pack line due to concerns it would further aggravate her injuries. Car-Freshener emphasizes its economic downturn as the reason for Melvin’s termination and the majority concludes Melvin cannot establish her engagement in a protected activity was the determinative factor in this case. However, I submit the inconsistencies in Car-Freshener’s explanations, coupled with the timing of Melvin’s termination, are

1

The Honorable Thomas J. Shields, United States Magistrate Judge for the Southern District of Iowa, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). 2

enough evidence from which a reasonable jury could infer Melvin was terminated because she qualified for workers’ compensation benefits. “A factor is determinative if it is the reason that ‘tips the scales decisively one way or the other,’ even if it is not the predominate reason behind the employer’s decision.” Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 302 (Iowa 1998) (emphasis added) (quoting Smith v. Smithway Motor Xpress, Inc., 464 N.W.2d 682, 686 (Iowa 1990)). Too many courts in this circuit, both district and appellate, are utilizing summary judgment in cases where issues of fact remain.2 This is especially true in cases where witness credibility will be determinative. In these instances, a jury, not the courts, should ultimately decide whether the plaintiff has proven her case. Summary judgment should be the exception, not the rule.3 It is appropriate “only . . . where it is quite clear what the truth is, . . . for the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.”4 Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (emphasis added) (citation and internal quotations omitted). It is undeniable that summary judgment is a valuable tool, the use of which allows overextended courts to remove cases that lack merit from their dockets. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). However, in accomplishing this goal, we have an obligation not to “overlook[] considerations which make . . . summary judgment an inappropriate means to that very desirable end.”5 Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944). As Justice Black explained, The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be preserved by the Seventh Amendment provision for jury trials in civil cases. The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) (Black, J., concurring). I express no opinion as to whether Melvin would ultimately be able to convince a jury in this case. However, she and all other similarly-situated plaintiffs should be afforded the opportunity to do so.6 ______________________________

2

Plaintiff’s emphasis.

3

Plaintiff’s emphasis.

4

Plaintiff’s emphasis.

5

Plaintiff’s emphasis.

6

Plaintiff’s emphasis. 3

R ULE OF L IBERAL C ONSTRUCTION7 Underlying the construction of any pleading in a Federal District Court is the principle that pleadings must be so construed as to do substantial justice. To this end, a complaint is to be liberally construed in favor of the pleader, with the benefit of all proper inferences being given to him orher. This principle of liberal construction of pleadings embodies the fundamental design of the Federal Rules to preserve the substances of an action from failing because of the technical irregularities in form. Liberal construction of pleadings, so as to do substantial justice, is particularly appropriate where the pleader is not learned in the law. Reasonable factual inferences should be drawn to aid the pleader, with the benefit of all proper inferences being givien to him or her, especially in antitrust cases, where proof is largely in the hands of the alleged cnspirators. Every fact will sbe supplied that can reasonably be inferred from what is specifically stated.

P RO S E P LEADINGS The general policy of the Federal Rules of Civil Procedure favors adjudication on the merits, rahter than technicalities of procedure and form, and is especially applicable in the case of a pro se complaint, since pro se complaints are generally held to less stringent standards than formal pleadings drafted by attorneys. Thus, a pro se complaint should be liberally construed, and should not be dismissedmerely because it does not state with precision every element of the offense necessary for recovery. Before dismissing a pro se complaint on the basis of conclusory allegations, the court should make an effort to specifically explain the deficiencies in the complaint, and invite the plaintiff to amend with more particular statements of claims.

O PPOSITION TO S UMMARY J UDGMENT8 “. . . Rule 56(f) of the Fed. R. Civ. P. and similar state rules provide that, if it appears from the affidavits of a party opposing a motion for summary judgment that he or she cannot present by affidavit facts essential to justify his or her opposition to the motion, the court may refuse the application for judgment, or may order a continuance so that the opponent can conduct discovery, or may make such other order as is just.9 A court may refuse summary judgment or order a continuance under Rule 56(f) if the opposing party has not had an adequate opportunity to obtain and present materials in support of the opposition.10 7

Pleading, 61A Am. Jur 2d § 108. Footnotes omitted.

8

Summary Judgment, 73 Am. Jur. 2d IV. Oposition.

9

Monmouth Lumber Co. V. Indemnity Ins. Co. Of North America, 21 N.J. 439, 122 A.2d 604, 59 A.L.R.2d 742 (1956); Gilchrist v. Trail King Industries, Inc., 2000 SD 67, 612 n.w.2D 10 (S.D. 2000). 10

National Life Ins. Co. v. Solomon, 529 F.2d 59 (2d Cir. 1975); Costlow v. U.S., 552 F.2d 560 (3 rd Cir. 1977); Littlejohn v. Shell Oil co., 483 F.2d 1140 (5 th Cir. 1973); Harris v. Pate, 440 f.2d 315 (7 th Cir. 1971); Handi Inv. Co. V. Mobil Oil Corp., 550 F.2d 389 (D.C. Cir. 1974); La Cotonniere De Moislains v. H. & B. American Mach. Co., 19 F.R.D. 6 (D. Mass. 1956). Neilson v Seaborg, 348 F. Supp. 1369 (D. Utah 4

Because I am a merchant seaman I have to earn wages on a monthly basis by taken only short-term jobs aboard ship (30 day voyages or there about most available) and because Defendant Michael Prendergast, Associate Director for Security Operations for the U.S. Department of Transportation committed an act of obstructing justice by issuing two Bar Notices, one in 2004 and the other in 2006, prohibiting me from visiting any FAA, DOT, or U.S. Coast Guard headquarters facility in the District of Columbia area to which I would otherwise be subject to arrest and I was, in fact and law, prevented from visiting the U.S. Coast Guard for the dual purpose of seeking evidentiary material to support my Objection to Motion to Dismiss and as a U.S. merchant seaman on maritime business I have effectively been denied reasonable access to potentially favorable information.

W HAT C ONSTITUTES A G ENUINE ISSUE OF M ATERIAL F ACT11 A material or genuine issue of fact that will preclude the granting of a summary judgment for the plaintiff is raised if the facts alleged by the defendant, if proved are such as to constitute a legal defense. If the affidavit of defense shows a substantial issue of fact, summary judgment should not be ordered, even if the affidavit is disbelieved. Evidence is substantial if it is of such weight and quality that fair-minded persons in the exercise of impartial judgment could reasonably infer the existence of the fact sought to be proved. If the affidavits on the one side and on the other are directly opposed as to the facts shown, the case must go to trial. The court cannot weigh the sworn affidavits against each other and then grant summary judgment. If there is any doubt as to the existence of a material and triable issue of fact, or leven if the issue is “arguable,” the drastic remedy of summary judgment should not be granted. All doubts as to the existence of a genuine issue of material fact should be resolved against a party moving for a summary judgment.

F ACTS T HAT S UPPORT M ORE T HAN O NE INFERENCE It has been held that, if the facts shown by the evidence on a summary judgment motion support more than one plausible but conflicting inference on a pivotal issue in the case, the trial court may not choose between those inferences, and summary judgment is precluded, particularly if the issue turns on credibility or if the inferences depend upon subjective feelings or intent.

W HAT C ONSTITUTES A G ENUINE ISSUE A genuine issue, within the rule that summary judgment may be granted if there are no genuine issues of material fact, has been variously described as a “triable,” “substantial,” or “real” issue of fact, and has been defined as one that can be maintained by substantial evidence. It has also been held that “genuine” in this context

1972); Burwell v. Easstern Air Lines, Inc., 394 F. Supp. 1361 (E.D. Va. 1975). 11

Summary Judgment, 73 Am. Jur.2d (V).(C). Footnotes omitted. 5

means that the evidence is such that a reasonable jury could resolve the fact in the manner urged by the nonmoving party. For a factual issue to be considered genuine, it mjust have real basis in the record, and it must be supported by substantial evidence.

W HAT C ONSTITUTES A M ATERIAL ISSUE For the purposes of Fed. R. Civ. P. 56 and similar state rules and statutes, which provide that summary judgment is appropriate only if there are no genuine issues of material fact, “material” means that the contested fact has the potential to alter the outcome of the suit under the governing law if the controversy over it is resolved satisfactorily to the nonmovant. In other words, material facts are those that tend to prove or disprove an elemen of a disputed claim for relief or that are necessary to the proof or defense of a claim, and are determined by reference to substantive law. In determining whether a material factual dispute exists on a summary judgment motion, the court views the evidence through the prism of the controlling legal standard. In other words, the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.

W HAT M AY B E C ONSIDERED Federal Rule 56(c) expressly includes “answers to interrogatories” among the materials which may be considered on a motion for summary judgment. Thus, under both the federal and similar state rules, a trial court may consider answers to interrogatories, either those which are an alternative method to the taking of depositions by oral examination or those which are a method for pretrial discovery, in determining a motion for summary judgment. When considering a motion for summary judgment, a trial court may properly resort to judicial notices, stipulations, or depositions taken and duly filed in a former action that involved the same subject matter and the same parties or their privies.

O N S UMMARY J UDGMENT The Defendants have failed to sustain their burden of showing that there is no genuine issue as to material fact. Therefore, they are not entitled to Summary Judgment. If the movant fails to meet this burden of proof, the nonmovant is not required to submit any evidence to survive the motion for summary judgment.12 While this may be true I, nevertheless, present my OBJECTION TO MOTION TO DISMISS . The primary function and duty of the court in passing upon a motion for summary judgment is to determine whether there is a issue of fact to be tried.13 If there are any genuine issues of material fact, the motion for summary judgment should be denied.14

12

Summary Judgment, 73 Am. Jur.2d § 17 Burden of Proof.

13

Marandola v. Hillcrest Builders, Inc., 102 R.I. 46, 227 A.2d 785 (1967); Swatek v. County of Dane, 192 Wis. 2d 47, 531 N.W.2d 45 (1995). 14

Gavin v. Peoples Natural Gas Co., 613 f.2d 482 (3d Cir. 1980); Taylor v. Liberty Mut. Ins. Co., 281 So. 2d 920 (Fla. Dist. Ct. App. 2d Dist. 1973); Kelley v. Kadinger Marine Service, Inc., 191 Wis. 2d 31, 6

“In particular cases, however, “matters outside the pleadings” that have been sanctioned to convert a motion under Rule 12(b)(6) or (c) into a motion for a summary judgment include oral testimony, exhibits,15 documents, and records from prior proceedings, stipulations or agreed statements of fact, alleged defamatory matter in a libel action, a collective bargaining agreement, and miscellaneous other items.”16 I submitted a documentary on DVD (oral and visual testimony) titled, IN SEARCH

OF THE

SECOND AMENDMENT : A DOCUMENTARY , with my VOLUME 4 AMENDED COMPLAINT , after the Defendants filed their MOTION TO DISMISS . That DVD alone establishes a genuine issue for trial that the Second Amendment is an individual right and Capt. J.P. Brusseau violated that right when he denied my application for National Open Carry Handgun (U.S.)/Small Arms and Light Weapons (U.N.) I also herein submit a book titled, TH E PEOPLE THEMSELVES : POPULAR CONSTITUTIONALISM

AND

JUDICIAL

REVIEW , by Larry D. Kramer, as compounding evidence in addition to what I present in this Objection of a corrupt federal judiciary in league with the United Nations waging war on the Second, Fifth, Ninth, and Tenth Amendments whether or not there exist any international conspiracies against the constitutional, civil, human, and vested rights of the American People. A court’s consideration of an exhibit attached to or incorporated in a pleading, which is considered part of the pleading, does not convert a motion to dismiss into a motion for summary judgment.17 If not all then nearly all of the Exhibits in the Defendants’ MOTION TO DISMISS are such that the do NOT convert the motion into a motion for summary judgment. “Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without a trial.”18 “The primary purpose of summary judgment procedure is to determine whether there areany triable issues of fact requiring a formal

528 N.W.2 462 (Ct. App. 1995). 15

Plaintiff’s emphasis.

16

U.S. v. Lewisburg Area School Dist., 539 F.2d 301 (3d Cir. 1976) (stipulation of facts and exhibits); S & S Logging Co. V. Barker, 366 F.2d 617 (9 th Cir. 1966) (depositions with affidavits); Smith v. Yellow Freight System, In., 536 F.2d 1320 (10 th Cir. 1976) (exhibits and affidavits); Fifield v. American Auto Ass’n, 262 F. Supp. 253 (D. Montana 1967) (alleged defamatory matter in libel action). 17

Solis-Ramirez v. U.S. Dept. of Justice, 758 F.2d 1426 (11 th Cir. 1985); Universal Underwriters Ins. Co. v. Thompson, 776 So. 2d 81 (Ala. 2000). 18

Schuck v. Montefiore Public School Dist. No. 1, 2001 ND 93, 626 N.2W.2d 698 (N.D. 2001). 7

trial on the merits,19 rather than to decide factual disputes. The province of a court considering a motion for summary judgment is not to tryissues of fact, but rather to determine whether such an issue exists.”20 “However, a court, in ruling on a motion for summary judgment, must make a preliminary assessment of the evidence to decide whether the evidence cncerns a material issue and is more than de minimis.”21 “The affidavits that the court considers on a motion for summary judgment stand on a different footing than those in which the trial judge is determining a question of fact on affidavits.”22 “The later situation corresponds to that of a judge directing a jury to render a verdict on admitted facts in the plaintiff’s favor.”23 “Summary judgment also promotes the search for undisputed material facts that can be applied in the judicial decision-making process.”24 Because the practical result of applying the summary judgment remedy is to deprive the party against whom judgment I granted of a trial in the usual course, the remedy is a drastic one that should be used with great caution and only in those cases in which the justice of its application is clear.”25 “Although summary judgment saves time, effort, and expense by avoiding a full trial under certain circumstances, those savings may not be gained at th expense of denying a litigant the right of trial if there is a genuine issue of material fact to be litigated.”26

R ES J UDICATA IS N OT AN A FFIRMATIVE D EFENSE IN T HIS C ASE “. . . [A] court should not grant summary judgment on res judicata grounds if the scope of the earlier decision is unclear.”27 It is because of the perpetual opposition of the United States as defendant in my previous cases that the scope of my claims were expanding in an attempt to clarify my claims until I am brought to the this court and by necessity having enjoined the United Nations as lead defendant bringing the scope of my claims to the international level. The United States must concede the merits of my Second Amendment and Civil RICO Act claims at some point because their opposition to every claim thus 19

R. D. Reeder Lathing co. v. Allen, 66 Cal. 2d 373, 57 Cal. Rptr. 841, 425 P.2d 785 (1967); Danielewicz v. Arnold, 137 Md. App. 601, 769 A.2d 274 (2001). 20

Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 766 A.2d 617 (2001).

21

Hartsel v. Keys, 87 F.3d 795, 1996 FED. App. 184P (6 th Cir. 1996).

22

Norwood Morris Plan co. v. McCarthy, 295 Mass. 597, 4 N.E.2d 450, 107 A.L.R. 1215 (1936).

23

Broussard v. Moon, 431 S.W.2d 534 (Tex. 1968).

24

Dixon v. Bhuiyan, 2000 OK 56, 10 P.3d 888, 147 Ed. Law Rep. 1106 (Okla. 2000).

25

Aloha Pools & Spas, Inc. V. Employer’s Ins. of Wausau, 342 Ark. 398. 39 S.W.3d 440 (2000)

26

Iannelli v. Burger King Corp., 761 A.2d 417 (N.H. 2000).

27

Pankratz v. State, Dept. of Highways, 652 P.2d 68 (Alaska 1982). 8

submitted because the United States is beginning to appear to be a belligerent hostile to not only my civil rights in the immediate case but the civil rights and human rights of the American People at large. The Buckhannon case is evidence of that trend and I suspect that this new trend my stand in violation of international conventions and declarations on human rights. With the addition of VOLUME 4 AMENDED COM PLAINT ADDING THE UNITED NATIONS AS LEAD DEFENDANT the Government is barred from applying res judicata as an affirmative defense.

T HE F EDERAL J UDICIARY W ARRING A GAINST C IVIL R IGHTS: T HE B UCKHANNON C ASE I have recently learned of the U.S. Supreme Court’s Opinion in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 618 (2001) from three law review articles whose excerpts I include in the following pagess. From those articles I learned that the U.S. Supreme Court has caused a litigious war on “private attorneys general” enforcement of civil rights. The Buckhannon case is prima facie evidence of a genuine issue of material fact supporting a ongoing Tenth Amendment war between the Federal Judiciary and the American People over the interpretation of the United States Constitution: Judicial Review (Supremacy) -v- Popular Constitutionalism. PLAINTIFF’S EXHIBIT #1: IN SEARCH OF THE SECOND AMENDMENT : A DOCUMENTARY by David T. Hardy. (DVD submitted previously with my VOLUME 4 AMENDED COMPLAINT ) PLAINTIFF’S EXHIBIT #2: THE PEOPLE THEMSELVES : POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW by Larry D. Kramer (book)

TWO EXAMPLES OF POPULAR CONSTITUTIONALISM Citing from Jerry Bonanno, FACING

THE

LION

IN THE

BUSH : EXPLORING

THE IM PLICATIONS OF

ADOPTING AN INDIVIDUAL RIGHTS INTERPRETATION OF THE SECOND AMENDMENT TO THE UNITED STATES CONSTITUTION , 29 Hamline L. Rev. 461, Summer, 2006: . . . abolitionist Frederick Douglass argued against limited readings of the term “the people,” which contributed to the constitutional survival of slavery.54 Mr. Douglass questioned interpretations that substituted a part of the people for the whole people.55 54

Stephen P. Halbrook, T H AT E VERY M AN B E A RM ED : T H E E VOLUTION O F A C O NS TITUTIO NAL R IG H T at 104 (Univ. of N.M. Press 1984) (citing 5 Frederick Douglass, L IFE AN D W RITINGS 201, 375 (Foner ed., 1950)). 55

Id. 9

He wrote that such selective readings of the term disregarded "the plain and commonsense reading of the instrument itself; by showing that the Constitution does not mean what it says, and says what it does not mean.56 Citing Frederick Douglass. [1857] (1985). "THE SIGNIFICANCE

OF

EMANCIPATION

IN THE

WEST INDIES ." Speech, Canandaigua, New York, August 3, 1857; collected in pamphlet by author. In THE FREDERICK DOUGLASS PAPERS . SERIES ONE : SPEECHES , DEBATES , AND INTERVIEW S . Volume 3: 1855-63. Edited by John W. Blassingame. New Haven: Yale University Press, p. 204: “Let me give you a word of the philosophy of reform. The whole history of the progress of human liberty shows that all concessions yet made to her august claims, have been born of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being, putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there is no progress. Those who profess to favor freedom and yet depreciate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters.” “This struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress. In the light of these ideas, Negroes will be hunted at the North, and held and flogged at the South so long as they submit to those devilish outrages, and make no resistance, either moral or physical. Men may not get all they pay for in this world; but they must certainly pay for all they get. If we ever get free from the oppressions and wrongs heaped upon us, we must pay for their removal. We must do this by labor, by suffering, by sacrifice, and if needs be, by our lives and the lives of others.”

Contesting Case Law Absent a clear statement that claims are being asserted against the government officials in their personal capacities, a complaint is regarded as asserting claims against the defendants in their official capacities. Johnson v. Outboard Marine Corporation, 172 F. 3d 531, 535 (8 Cir. 1999th ); Murphy v. State of Arkansas, 127 F. 3d 750, 754 (8th Cir. 1997); Egerdahl v. Hibbing Community College, 72 F. 3d 615, 619-20 (8 Cir. 1995). As a Pro Se Plaintiff is it unreasonable to assert claims as being asserted against government officials in both their personal and official capacities in order to reduce the cost of litigation?

56

Id. (citing 2 Frederick Douglass, L IFE

AN D

W RITINGS 201, 420 (Foner ed., 1950)). 10

2002 DISARMING THE PRIVATE ATTORNEY GENERAL Pamela S. Karlan Research Paper No. 36, 2002 Stanford Public Law and Legal Theory Working Paper Series Stanford Law School Crown Quadrangle Stanford, California 94305-8610 IV. BUCKHANNON BOARD AND CARE HOME V . WEST VIRGINIA DEPA RTMENT OF HEALTH AND HUMAN RESOURCES AND THRO TTLING THE CATALYST THEORY Attorney’s fees are the fuel that drives the private attorney general engine. Every significant contemporary civil rights statute contains some provision for attorney’s fees,127 and in 1976, Congress passed a comprehensive attorney’s fee statute that provides for fees under the most important Reconstruction Era civil rights statutes as well.128 The rationale for fee awards rests on several interlocking considerations. First, most civil rights plaintiffs are unable to afford counsel129 and without a fees statute, the available counsel would be limited to attorneys willing to represent them pro bono. Second, the absence of statutory fees might skew attorneys’ selection of cases: they might concentrate on cases involving the possibility of large damages awards and the attendant contingent fee, and forego cases which involved only equitable relief or where the right, while important, was not easily translated into a large damages award for the named plaintiffs.130 But this often do the most to vindicate important societal interests. They are the ones where plaintiffs function most clearly as private attorneys general.

127

In its original form, the Civil Rights Act of 1964, the cornerstone of the Second Reconstruction, and the model for later antidiscrimination statutes, such as the Americans with Disabilities Act, provided for fee awards to prevailing parties in cases brought under Title II (governing public accommodations) and Title VII (governing employment) but not under Title VI (governing federally funded programs). The Civil Rights Attorney’s Fees Awards Act of 1976, however, provides for attorney’s fees in Title VI cases as well. See 42 U.S.C. § 1988(b) (1994). 128

42 U.S.C. § 1988(b) (“In any action or proceeding to enforce a provision of sections 1977, 1977A, 1978, 1979, 1980, and 1981 of the Revised Statutes [42 U.S.C. §§ 1981-1983, 1985, and 1986] ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs ....”). 129

See S. Rep. No. 94-1011, at 1-3 (1976); H.R. Rep. No. 94-1558, at 1 (1976).

130

The Supreme Court’s decision in Memphis Community School District v. Stachura, 477 U.S. 299 (1986), does not permit the award of damages to vindicate the general value of the constitutional right in question. So, for example, absent proof of an actual injury, plaintiffs who show violations of such constitutional entitlements as the right to procedural due process are entitled only to nominal damages. See Carey v. Piphus, 435 U.S. 247 (1978). 11

There is something sadly fitting about the very first decision issued by the Rehnquist Court: It held that citizens who vindicate their Title VI rights in the administrative forum to which Alexander v. Sandoval consigns them cannot recover attorney’s fees.131 In the ensuing fifteen years, the Rehnquist Court has issued a series of similarly parsimonious fees decisions.132 Last Term’s decision in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources133 marked yet a further retrenchment. The question presented in Buckhannon Home was whether a plaintiff whose lawsuit prompts a defendant to change its conduct “voluntarily”134 – that is, without an actual court order – is a “prevailing party” and therefore statutorily entitled to recover a reasonable attorney’s fee for the time spent on the litigation. After it was threatened with closure of its assisted-living care facilities for failure to meet a state regulation, Buckhannon Home brought a federal lawsuit claiming that the regulation violated the Fair Housing Amendments Act of 1988135 and the Americans with Disabilities Act,136 and seeking declaratory and injunctive relief.137 Less than a month after the district court rejected the defendants’ motion for summary judgment, the West Virginia Legislature repealed the regulation Buckhannon Home had challenged. The defendants then moved to dismiss the case as moot, and Buckhannon Home, which claimed that its suit had triggered the statutory repeal, moved for attorney’s fees as a “prevailing party” under the fees provisions of the FHAA and the ADA, which follow the standard model provided by the 1964 Civil Rights Act and section 1988. By a 5-4 vote, the Supreme Court held a plaintiff cannot be a “prevailing party” within the meaning of the fees statutes unless it achieves “a court-ordered ‘change [in] the legal relationship between [it] and the defendant.’”138 To be entitled to an award of attorney’s fees, plaintiffs must either receive an adjudicated judgment on the merits or persuade the defendant to enter into a consent

131

See North Carolina Dep’t of Transportation v. Crest St. Community Council, 479 U.S. 6 (1986) (holding that time spent in an administrative proceeding to enforce Title VI regulations would not entitle successful claimants to an attorney’s fee award). 132

See, e.g., Farrar v. Hobby, 506 U.S. 103, 115 (1992) (suggesting that in many cases, a plaintiff who recovers only nominal damages should be entitled to no fees award at all because, although she has vindicated her “‘absolute’ [i.e., abstract] right,” she has failed to prove some central element of her claim for compensatory damages); City of Burlington v. Dague, 505 U.S. 557 (1992) (rejecting the possibility of a contingency multiplier); West Virginia University Hospitals v. Casey, 499 U.S. 83 (1991) (holding that plaintiffs are not entitled to recover the costs of experts’ services as part of their statutory attorney’s fee in the absence of express authorization). 133

532 U.S. 598 (2001).

134

See id. at 600.

135

42 U.S.C. §§ 3601 et seq. (1994).

136

42 U.S.C. §§ 12101 et seq. (1994).

137

Buckhannon Hom e originally also sought damages, but dropped this claim early on when the defendants raised claims of sovereign immunity. See Buckhannon Home, 532 U.S. at 624 (Ginsburg, J., dissenting). 138

Buckhannon Home, 532 U.S. at 604 (emphasis added) (quoting Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792 (1989)). 12

judgment that provides for some sort of fee award.139 necessary judicial imprimatur.”140

Otherwise, their achievement“lacks the

Chief Justice Rehnquist’s opinion for the Court downplayed the negative effects of the decision on plaintiffs’ ability to vindicate their rights. First, he suggested that the danger of defendants’ unilaterally denying plaintiffs’ their right to fees was limited to a small class of cases. That threat “only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”141 Of course, as the Chief Justice himself acknowledged in a footnote, there is a broad class of claims for which damages are not even theoretically available: those to which the Eleventh Amendment applies.142 Moreover, to the extent that suits seeking only equitable relief lie at the core of the vision of the private attorney general as champion of the public interest, the Court’s theory countenances cutting off the cases that particularly motivated Congress to provide attorney’s fees. More systematically, the Court’s decision reintroduces the skewing effect on case selection: civil rights attorneys who want to safeguard the possibility of recovering fees will choose lawsuits in which damages are available over lawsuits that involve only injunctive relief, even if the latter lawsuits are more socially valuable. Second, the Chief Justice suggested that the catalyst theory might actually have perverse consequences for plaintiffs. In a no-catalyst theory world, where fees can be avoided by unilateral abandonment, a defendant whose conduct is detrimental to the plaintiff but not actually illegal might change course, thereby giving a plaintiff more relief than he could win through full-scale adjudication.143 Buried in this argument is a less beneficent vision of civil rights plaintiffs. The Court sees the catalyst theory as giving fees to a plaintiff who “by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the ‘sought-after destination’ without obtaining any judicial relief.”144 In short, the Court feared a windfall for undeserving plaintiffs – those who persuade defendants to abandon “conduct that may not be illegal” – if the lower federal courts could award fees without first being required to find actual violations. Justice Scalia’s concurrence is more blunt: The plaintiff who induces a defendant to abandon conduct that no court has found to be illegal145 may be getting rewarded for “a phony claim.”146 As between giving a fee to someone with a

139

In Evans v. Jeff D., 475 U.S. 717 (1986), the Supreme Court held that defendants can offer consent judgments that are expressly conditioned on a plaintiff’s waiver of his statutory right to attorney’s fees. In light of Jeff D., very few defendants are likely to agree to consent judgments that either do not waive fees entirely or do not fully resolve the fees question. See Marek v. Chesny, 473 U.S. 1, 7 (1985) (noting that “[m]any a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney's fees in whatever amount the court might fix on motion of the plaintiff”). 140

Buckhannon Home, 532 U.S. at 605.

141

Id. at 608-09.

142

See id. at 609 n.10.

143

Id. at 608.

144

Id. at 606.

145

Justice Scalia remarked that if he were writing on a clean slate, he would decline to award fees even to a plaintiff who obtains a consent judgment. See id. at 618 (Scalia, J., concurring). 146

Id. 13

phony claim and denying a fee to a plaintiff with a solid case whose opponent manipulates the system to evade the fee statute, Justice Scalia came down squarely against the civil rights plaintiff: [I]t seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less "deserving" of them than others who receive them, and a rule that causes the law to be the very instrument of wrong – exacting the payment of attorney’s fees to the extortionist.147 Justice Scalia’s choice of words is deeply revealing. For him, attorney’s fees are an extraordinary boon, and not the centerpiece of an enforcement regime that sees the private attorney general as an essential tool. And civil rights plaintiffs are potential extortionists, rather than potential victims of conduct that the Constitution or Congress has proscribed. CONCLUSION The overriding theme that links together the Supreme Court’s decisions on a range of issues – from the scope of Eleventh Amendment immunity to the scope of congressional power under section 5 of the Fourteenth Amendment, and from when to find implied rights of action to when to award attorney’s fees – can be stated quite simply: The current Court is creating an ever-greater regulationremedy gap. It has left Congress free to regulate a wide range of subjects, but it is engaged in a form of courtstripping that reduces the possibilities for judicial enforcement of statutory commands. To paraphrase my colleague Gerry Gunther, a “virulent variety of free-wheeling interventionism lies at the core of [the Court’s] devices of restraint.”148 The Congress and Supreme Court of an earlier era constructed the institution of the private attorney general because they recognized that, without private attorneys general, it would be impossible to realize some of our most fundamental constitutional and political values. The current Court seems bent on dismantling this centerpiece of the Second Reconstruction. For all its invocations of Marbury’s declaration that it “is emphatically the province and the duty of the judicial department to say what the law is,”149 the current Court seems to have forgotten Marbury’s equally important acknowledgment – that “the government of the United States has been emphatically termed a government of laws, and not of men,” but “will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”150 When the law furnishes no remedy because the Supreme Court has cast out the remedies that the political branches have tried to provide, then the courts threaten to become the most dangerous branch “to the political rights of the Constitution,”151 and not the least.

147

Id.

148

Gunther, Gerald Gunther, The Subtle Vices of the “Passive Virtues” – A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 at 25. (1964). 149

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

150

5 U.S. at 163.

151

The Federalist, No. 78, supra note 3, at 465. 14

2004 PRIVATE ATTORNEYS GENERAL AND THE FIRST AMENDMENT by Trevor Morrison Cornell Law School Legal Studies Research Paper Series No. 04-017 Cornell Law School Myron Taylor Hall Ithaca, NY 14853-4901

INTRODUCTION The “private attorney general” is under fire again. It has been in and out of favor in the six decades since it was named,1 in part becauseit has come to signify so many different things.2 At its core, however, the term denotes a plaintiff who sues to vindicate public interests not directly connected to any special stake of her own.3 The remedies sought in such actions tend to be correspondingly broad: rather than seeking redress for discrete injuries, private attorneys general typically request injunctive or other equitable relief aimed at altering the practices of large institutions. From school desegregation to fair housing, environmental management to consumer protection, the impact of private attorney general litigation is rarely confined to the parties in a given case.4 It is perhaps unsurprising, then, that the private attorney general has not been universally admired. While some regard it as critical to the effectuation of the public interest, others worry its authority may be abused by plaintiffs better likened

1

See Associated Indus. of N.Y. State, Inc. v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943), vacated as moot, 320 U.S. 707 (1943) (using the phrase “private Attorney Generals” [sic] for the first time to refer to plaintiffs empowered by Congress to “su[e] to prevent action by an officer in violation of his statutory powers,” and noting the permissibility of granting private actors such authority “even if the sole purpose is to vindicate the public interest”); see also Flast v. Cohen, 392 U.S. 83, 119 (1968) (Harlan, J., dissenting) (tracing the term “private attorneys-general” to Associated Industries). 2

See Bryant Garth et al., The Institution of the Private Attorney General: Perspectives from an Empirical Study of Class Action Litigation, 61 S. CAL. L. REV. 353, 355 (1988) (suggesting that there is no “single, ‘lasting’ reform, institutionalized as the private attorney general”); Jeremy A. Rabkin, The Secret Life of the Private Attorney General, 61 LAW & CONTEMP. PROBS., Winter 1998, at 194-95 (stating “there is still no legal definition, nor any well-established pattern of usage, which precisely identifies a litigant as a ‘private attorney general’”). 3

The term thus aligns with what Louis Jaffe famously dubbed the “non-Hohfeldian plaintiff,” and what Abram Chayes first called “public law litigation.” See Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968); Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976). Jaffe adapted his term from W esley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913). 4

See Chayes, supra note 3, at 1284 (including these areas, among others, as examples of private attorney general litigation). 15

to “extortionist[s].”5 Much of this disagreement concerns the wisdom of relying on private actors to implement broad public norms. Occasionally, however, arguments surface about the legality of doing so. The latest challenge to the private attorney general takes the latter form, and comes from a rather unlikely quarter: the First Amendment. The challenge arose in Nike v. Kasky.6 The case was ostensibly about the Supreme Court’s commercial speech doctrine, which generally permits the government to promote accuracy and integrity in the marketplace by prohibiting false advertising and other misleading commercial statements.7 A private plaintiff sued Nike under a California law prohibiting “unfair, deceptive, untrue or misleading advertising,”8 alleging that Nike had publicly misrepresented the working conditions in its subcontractors’ factories.9 The main question before the Supreme Court was whether Nike’s statements constituted “commercial” or “noncommercial” speech.10 The Solicitor General of the United States filed a brief as amicus curiae supporting Nike, but urging the Court to avoid the commercial/noncommercial issue. Instead, he focused on the fact that the suit against Nike was initiated by a private attorney general. California law provided that, in addition to direct government enforcement, unfair competition and false advertising actions could be brought by private plaintiffs even without any allegation that they had been injured by the statements in question.1111 In the Solicitor General’s view, that feature of the California regime exceeded the legitimate injurycompensating scope of traditional common law actions for fraud, misrepresentation, and the like. In so doing, it raised the prospect of vexatious and abusive litigation, which in turn threatened to “chill[] the scope of public debate and the free flow of useful information.”12 To protect against that harm, the Solicitor General urged the Court to hold that the First Amendment bars “legal regimes in which a private party who has suffered no actual injury may seek redress on behalf of the public for a company’s allegedly false and misleading statements.”13

5

Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 618 (2001) (Scalia, J., concurring). 6

539 U.S. 654 (2003) (dismissing writ of certiorari as improvidently granted).

7

See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 563 (1980) (“The First Amendment’s concern for commercial speech is based on the informational function of advertising. . . . [T]here can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.”). 8

CAL. BUS. & PROF. CODE § 17200 (West 1997). When a private plaintiff sues to enforce a speech-restrictive law, the judiciary’s involvem ent constitutes sufficient “state action” to bring the First Amendment into play. See Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) (“Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes ‘state action’ under the Fourteenth Amendment.”). 9

See infra notes 187-194 and accompanying text.

10

See infra notes 196-198 and accompanying text.

11

See infra notes 74-76 and accompanying text.

12

Brief for the United States as Amicus Curiae Supporting Petitioners at 21, Nike, Inc. v. Kasky, 539 U.S. 654 (2003) (No. 02-575). MORRISON 2.DOCFINAL CHECK 2/25/2005 10:54 13

Id. at 8. 16

At the same time, the Solicitor General argued there should be no bar to direct government enforcement of speech restrictions substantively identical to those invoked by the plaintiff in Nike. He asserted that the Federal Trade Commission and its state counterparts are subject to “institutional checks” such as “legislative oversight and public accountability,”14 which ensure that their actions do not interfere with First Amendment values. Unlike suits initiated by private attorneys general, therefore, government enforcement actions do not imperil free speech values, even in the absence of any allegation that the challenged speech has caused any specific injury. Accordingly, the Solicitor General reasoned, the Court ought to invalidate the California private attorney general regime while preserving the power of government entities to bring essentially identical enforcement actions. The argument was nothing if not novel.15 A number of state consumer protection laws observe the distinction advocated by the Solicitor General — requiring injury in suits brought by private plaintiffs but not in those initiated by the government1616 — but the Solicitor General pointed to no judicial precedent or scholarly commentary defending the distinction under the First Amendment. Yet neither, it appears, had any court or commentator explicitly rejected such a distinction. The Court ultimately avoided the issue by dismissing the writ of certiorari as improvidently granted,17 but not before as many as five Justices expressed at least some interest in the Solicitor General’s argument.18 More recently, in November 2004, the California voters endorsed a ballot 14

Id. at 23.

15

Although not framed as such, the argument may echo certain themes sounding in the largely moribund “private delegation doctrine.” Applied to state governments, the doctrine im poses due process limits on delegations of governmental or quasi-governmental power to private individuals. See Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367, 1437-45 (2003) (describing the doctrine). As Gillian Metzger describes, the animating concern of the doctrine is that “public power may be abused to achieve particular private aims instead of the public interest.” Id. at 1437. The Solicitor General’s argument in Nike certainly takes up that theme, and thus one might wonder about the application of private delegation doctrine in cases like Nike. As a practical matter, however, invocations of the private delegation doctrine would be unlikely to persuade a modern court: the doctrine has been “dormant” since the New Deal. Id. at 1438. Moreover, even if the doctrine were active today, it is far from clear that the conferral of private litigating (but not more formal regulatory) power would constitute a paradigm case of problematic “private delegation.” Finally, although Metzger mounts a powerful theoretical argument for a new form of private delegation analysis that accounts for the present trend toward privatizing governmental functions, see id. at 1456-1501, it appears that her new model would not require any greater judicial superintendence of private attorneys general than that ordinarily provided by the courts in the course of litigation. In any event, these issues are all beyond the scope of this Article. Accordingly, I do not address whether, instead of relying upon the First Am endm ent, the Nike argument against private attorneys general could have been supported by recourse to the private delegation doctrine. 16

See DEE PRIGDEN, CONSUMER PROTECTION AND THE LAW § 5:9 (2002). MO RRISON 2.DOC 2/25/2005 10:54 AM 17

See Nike, Inc. v. Kasky, 539 U.S. 654 (2003).

18

Justice Breyer issued an opinion dissenting from the dismissal, expressing apparent support for the Solicitor General’s argument. See id. at 680-81 (Breyer, J., dissenting from the dismissal of the writ). Justice O’Connor joined Justice Breyer’s opinion. Justice Stevens issued an opinion concurring in the dismissal, in which he characterized the Solicitor General’s argument as raising “difficult and important” questions. Id. at 664 n.5 (Stevens, J., concurring in the dismissal of the writ). Justice Ginsburg joined Justice Stevens’ opinion in full; Justice Souter joined it in relevant part. See infra notes 226-230 and accompanying text for further discussion. 17

initiative that limited the litigating authority of private attorneys general by imposing an injury requirement along the very lines proposed by the Solicitor General in Nike.19 Those who campaigned in favor of the new limits justified them, in part, on First Amendment grounds.2020 Thus, both at the Court and in the public at large, the idea of a First Amendment distinction between public and private enforcement seems to be attracting support. If formally embraced as a doctrinal matter, this distinction could have substantial theoretical and practical consequences, the latter hardly limited to the field of consumer protection. Consider, for example, the anti-pornography ordinance proposed by Andrea Dworkin and Catharine MacKinnon, a version of which was adopted by the city of Indianapolis in 1984. One provision of the ordinance made “trafficking in pornography” a civil offense actionable by “any woman . . . acting against the subordination of women.”21 The underlying theory was that pornography inflicted harm on all women,22 but the ordinance did not require any showing of injury in the conventional sense. Rather, all women were authorized to enforce the trafficking provision as private attorneys general. Courts made quick work of the ordinance as enacted in Indianapolis, concluding its definition of pornography was viewpoint-discriminatory and thus facially unconstitutional.23 Although courts thus had no occasion to consider other arguments against the ordinance, free speech advocates suggested the trafficking provision had additional constitutional flaws in that it allowed “anyone to bring a lawsuit to halt any production or distribution of sexual materials.”24 The problem, on this view, was that the speech in question would be intolerably chilled if over half the population was suddenly empowered to regulate it.25 Whether applied to commercial speech, pornography, or any other area of regulated expression, the public/private distinction urged in Nike might seem a ready solution to such problems. Especially where a regulation’s substantive provisions are couched in relatively malleable terms, authorizing the general citizenry to enforce the regulation might threaten to open the proverbial floodgates of litigation, meritorious and otherwise. Government enforcement, in contrast, may seem more stable, less subject to abuse, and — to the extent the officials responsible for enforcement are sympathetic to the position of the entities they regulate — more restrained.

19

See infra notes 233-237 and accompanying text.

20

See, John H. Sullivan, P RO P O SITIO N 64: A G O O D F IX S H O U L D V O TE Y ES , CAL. B.J., Oct. 2004, at 8. 21

OR A

Andrea Dworkin & Catharine Mackinnon, P O RNO G RAPH Y W O M EN ’ S E QUALITY 141 (1988). 22

D ISAS T ER ? 10 R EASONS L AW YERS

AN D

C IV IL R IGH TS :

A

N EW D AY

FO R

Catharine Mackinnon, FEMINISM UNMODIFIED : DISCOURSES ON LIFE AND LAW 190 (1987).

23

See American Booksellers Ass’n v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985) (“The definition of ‘pornography’ is unconstitutional.”), aff’d mem., 475 U.S. 1001 (1986). 24

Nadine Strossen, D EFENDING P O RNO G RAPH Y : F REE S PEEC H , S EX , R IGH TS 76 (1995). 25

AND TH E

F IG H T

FO R

W O M E N ’S

See, e.g., Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 640 (1987) (noting concerns that “the ordinance . . . made a bookseller vulnerable to suits brought by almost anyone and for any motivation,” and describing “‘fear of what groups like the Moral Majority could do with the Dworkin-MacKinnon ordinance as a precedent’”). 18

Analytically, this newly proposed public/private distinction raises at least two sets of questions. First, it provokes a number of questions specific to the First Amendment. It is clear that the First Amendment tolerates some content-based limits on speech.26 True threats, fighting words, defamation, obscenity, copyright-infringing speech, and commercial speech are all examples of “speech” subject to regulation on the basis of its content.27 But the fact that certain speech may be regulated does not mean that all forms of such regulation are permissible; the First Amendment cares about the means as well as the ends of speech regulation. The question raised here is whether the First Amendment’s sensitivity to regulatory means should distinguish among plaintiffs challenging the speech in question. Specifically, should it matter for First Amendment purposes whether the party invoking a speech-restrictive law is the government or a private actor? Does, or should, the First Amendment prefer public over private enforcement when it comes to regulating speech? The second set of questions goes beyond the First Amendment. By contending that there is something especially problematic about private litigation by a plaintiff who asserts no direct injury, the public/private distinction raises basic questions about the role of the private attorney general across substantive domains. On one hand, discrete dispute resolution has traditionally been viewed as the basic purpose of private litigation.28 On the other, it has long been clear that litigation aimed primarily at resolving private disputes can have the secondary effect of advancing broader public values.29 But may privately initiated “public law litigation”30 seek only to advance broad public interests, even though the plaintiff has no direct stake in the defendant’s conduct and has suffered no direct injury requiring compensation? Who, in short, may enforce public law? I address both sets of questions in this Article. My argument can be distilled into two main contentions. First, a categorical First Amendment preference for public over private enforcement cannot

26

See, e.g., Virginia v. Black, 538 U.S. 343, 358 (2003) (“The protections afforded by the First Amendment . . . are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.”). 27

See, e.g., Eldred v. Ashcroft, 537 U.S. 186 (2003) (copyright); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1980) (commercial speech); Gertz v. Welch, 418 U.S. 323 (1974) (defamation); Miller v. California, 413 U.S. 15 (1973) (obscenity); Watts v. United States, 394 U.S. 705 (1969) (per curiam) (true threats); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words). Beyond the fact that the First Amendment accords different levels of protection to different kinds of speech, some restrictions are not regarded as First Amendment events at all — that is, the expression being regulated is deemed beyond the First Amendment’s coverage. See Frederick Schauer, F REE S PEEC H : A P H ILO SO PH ICAL E NQU IRY 89-92, 134-35 (1982); Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1769-73 (2004). Schauer identifies a number of examples of “speech” regulation falling outside the First Amendment, including securities regulation, antitrust law, the law of criminal solicitation, much of the law of evidence, and the regulation of professionals. See id. at 177784. 28

See Chayes, supra note 3, at 1282 (“In our received tradition, the lawsuit is a vehicle for settling disputes between private parties about private rights.”). 29

See, e.g., Louis Kaplow, Private Versus Social Costs in Bringing Suit, 15 J. LEGAL STUD. 371, 371 n.2 (1986) (noting that in private tort litigation, the “private benefits are simply the damage award, whereas social benefits consist of the reduction in accident costs resulting from the deterrence effect of private suits”). 30

See Chayes, supra note 3, at 1284 (describing “public law litigation” as an “emerging model,” replacing the “traditional model” of private dispute resolution). 19

be squared with existing free speech doctrine or the principles underlying it. To the contrary, as a general matter, the First Amendment properly regards private enforcement of speech-related regulations as neither more nor less threatening to free expression than public enforcement. Second, the distinction between public and private enforcement urged in Nike is best understood as more than merely an unpersuasive First Amendment argument. Rather, it should be viewed against the backdrop of a number of efforts by the Supreme Court over the last decade to limit the power and influence of private attorneys general in a whole range of substantive areas, while leaving the government a relatively free hand to enforce the laws directly. To the extent the proposed public/private distinction garners support at the Supreme Court and elsewhere despite its doctrinal weaknesses, the reason may be that it seems to offer a novel means of advancing the Court’s policy-preferred end of elevating public over private enforcement. That preference may, in turn, reflect a more fundamental hostility to regulation itself.

20

2006 THE PROCEDURAL ATTACK ON CIVIL RIGHTS: THE EMPIRICAL REALITY OF BUCKHANNON FOR THE PRIVATE ATTORNEY GENERAL 2006 Catherine R. Albiston and Laura Beth Nielsen In 2001, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court rejected the catalyst theory for recovery of attorneys’ fees in civil rights enforcement actions. In doing so, the Court dismissed concerns that plaintiffs with meritorious but expensive claims would be discouraged from bringing suit, finding these concerns “entirely speculative and unsupported by any empirical evidence.” This article presents original data from a national survey of more than 200 public interest organizations that call into question the Court’s empirical assumptions. These data indicate that organizations that take on paradigmatic public interest cases, such as class actions seeking injunctive relief against government actors, are the most likely to be negatively affected by Buckhannon. In addition, our respondents report that Buckhannon encourages “strategic capitulation,” makes settlement more difficult, and discourages attorneys from representing civil rights plaintiffs. We argue that these far reaching effects herald a shift away from private rights enforcement and toward more government power, both to resist rights claims and to control the meaning of civil rights. I. INTRODUCTION In 2001, the Supreme Court issued an opinion that changed the American system of civil rights enforcement. At issue in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources,1 was whether plaintiffs could qualify as “prevailing parties” entitled to attorneys’ fees if they achieved their desired result because their lawsuit was a catalyst for voluntary change in the defendant’s conduct. Although nearly every circuit court in the country had adopted the “catalyst theory” for fee recovery at the time that Buckhannon was decided,2 the Court rejected it. Instead, the Court held that to qualify as a “prevailing party” under the fee shifting statutes at issue the plaintiffs must obtain a “material alteration of the legal relationship of the parties” such as a favorable judgment on the merits or a consent decree.3 Simply acting as a catalyst for the defendant’s change in position was not sufficient to support a fee award, even if the defendant’s action gave the plaintiffs the relief they sought.4 Buckhannon is about much more than whether plaintiffs’ attorneys will be paid when the defendant voluntarily changes its conduct in response to a lawsuit. Fee shifting statutes support an extensive system of rights enforcement through “private attorneys general”: private litigants who bring

1

532 U.S. 598 (2001).

2

Id. at 625-26 & n.4 (Ginsburg, J. dissenting) (collecting cases).

3

Id. at 604.

4

Id. at 605. 21

enforcement actions that benefit not only the litigant but also the broader public interest. More than 150 important statutory policies, including civil rights and environmental protections, provide statutory fees to encourage private litigants to mobilize a private right of action.5 Although federal and state governments also engage in some enforcement activities, private parties bring more than ninety percent of actions under these statutes.6 This private enforcement system decentralizes policy making, and helps insulate enforcement from capture by established interests. It is also, from the perspective of taxpayers, cheap: it does not place the cost of enforcement solely upon government actors. Little empirical evidence exists, however, about how Buckhannon has affected this system. Answering this empirical question is important because fee shifting statutes are an integral part of civil rights enforcement. Fee shifting statutes are needed to encourage private enforcement because unlike other tort actions, many meritorious civil rights claims lack financial incentives sufficient to interest private attorneys. In some instances, the plaintiff seeks non-monetary relief, such as institutional reform or a change in policy, relief that would benefit many but will not pay a lawyer. In others, the plaintiff’s monetary damages are relatively small; for example, low-wage discrimination victims may have economic damages that are far less then the cost of litigating their claim. Yet when successful, these actions confer broad benefits. Injunctive relief and policy changes have effects far beyond the individual litigant, and vigorous enforcement of civil rights serves important deterrence interests. Fee shifting statutes help civil rights claimants find lawyers willing to take on these often expensive and time consuming claims; without these statutes, access to the judicial process would be much more difficult to obtain.

5

Ruckleshaus v. Sierra Club, 463 U.S. 680, 684 (1983); see also Marek v. Chesny, 473 U.S. 1, 43-51 (Brennan, J. dissenting) (Appendix) (collecting federal statutory fee shifting provisions); Coulter v. Tennessee, 805 F.3d 146, 152-55 (1986) (Appendix A) (collecting federal statutes authorizing the award of attorneys fees). 6

See, e.g., Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011, 1021-23 (2000) (indicating that the United States rarely brings enforcement actions under the Fair Labor Standard Act); Catherine R. Albiston, The Rule of Law and the Litigation Process: The Paradox of Losing by Winning, 33 LAW & SOC’Y REV. 869, 896 (1999) (reporting that only a handful of federal Family and Medical Leave Act actions that produced reported opinions involved government representation of plaintiffs); Paul Burstein and Kathleen Monaghan, Equal Employment Opportunity and the Mobilization of Law, 20 LAW & SOC’Y REV. 355, 359-367 (1986) (reviewing statistics on EEOC and amicus participation in employment rights enforcement suits from 1965 to 1983 and concluding that most litigants involved in employment actions are proceeding on their own). Data from the Administrative Office of the United States Courts indicate that the federal government is seldom the plaintiff in civil rights and other statutory enforcement actions that implicate the public interest. The following table was complied from the Report of the Administrative Office of the United States Courts on the Judicial Business of the United States Courts for 2005, Table C-2 (last visited March 20, 2006). Select Civil Cases Com m enced in U.S. District Courts Type of Action Civil Rights Prisoner Civil Rights FLSA& LMRA

US as Plaintiff 534 0 155

Other Plaintiff Total Cases 35,562 36,096 16,005 16,005 5558 5713 22

Percent Brought by US as Plaintiff 1.5% -2.7%

Congress enacted fee shifting statutes to encourage private enforcement of civil rights legislation by making it easier for victims of civil rights violations to find lawyers willing to represent them. Congress intended these statutes to “ensure that there would be lawyers available to plaintiffs who could not otherwise afford counsel, so that these plaintiffs could fulfill their role in the federal enforcement scheme as ‘private attorneys general,’ vindicating the public interest.”7 Congress saw the need for fee shifting statutes based in part on evidence that most civil rights plaintiffs could not afford legal counsel, and that the limited potential for compensation meant private attorneys were refusing to take civil rights cases.public interest.”8 Congress explicitly noted that civil rights enforcement depends heavily on private enforcement, and that fee awards are essential “if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.”9 And, significantly, Congress seems to have specifically considered the prospect that defendants would voluntarily change their conduct in response to litigation. For example, the legislative history to the Civil Rights Attorneys’ Fee Awards Act (CFRAA) notes: [A]fter a complaint is filed, a defendant might voluntarily cease the unlawful practice. A court should still award fees even though it might conclude, as a matter of equity, that no formal relief, such as an injunction, is needed.10 Congress made clear that “[t]he phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits.”11 Instead, “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.”12 Because Buckhannon undermines incentives for bringing enforcement actions, it threatens to weaken this system of private enforcement of civil rights. The catalyst theory was an important part of this enforcement system because it prevented a litigation maneuver that we term “strategic capitulation.” By strategic capitulation, we mean situations where defendants faced with likely adverse judgments provide the requested relief in order to moot the case and defeat the plaintiff’s fee petition. So, for example, when a challenge to a policy prompts a government entity to change the policy, or when the government grudgingly produces documents requested under the Freedom of Information Act only after protracted litigation, courts were reluctant to deny fee petitions simply because the defendant mooted the case by providing the relief sought in the lawsuit. To do so might deter attorneys from taking such actions in the future and encourage defendants to stall to drain their opponent’s resources. Such an approach would be contrary to the intent behind fee shifting provisions: promoting vigorous enforcement of important public policies.

7

Evans v. Jeff D., 475 U.S. 717, 745 (Brennan, J. dissenting) (discussing legislative history of fee shifting provisions); see also S.Rep. No. 94-1011 pp. 1-5 (1976)(discussing the role of private attorneys general in vindicating rights of the highest priority through private enforcement). 8

H.R. Rep. No. 94-1558, at 3 (1976).

9

S. Rep. No. 94-1011, at 2 (1976).

10

H.R. Rep. No. 94-1558, at 7 (1976).

11

H.R. Rep. No. 94-1558, at 7 (1976).

12

S. Rep. No. 94-1011, at 5 (1976) (emphasis added). 23

Although the Court rejected the catalyst theory in Buckhannon, it did not back away from the purposes and values behind the private attorney general enforcement system. Instead, the Court emphasized how its decision would encourage settlement, taking a static, ex post approach focused on how the catalyst theory affects incentives once an enforcement action is commenced. Rejecting the catalyst theory, the majority reasoned, would minimize satellite litigation over fees and also encourage settlement because defendants willing to provide relief voluntarily would not longer be deterred from acting by the cost of the fee award.13 The dissent took a more dynamic, ex ante view, focusing on how rejecting the catalyst theory would likely affect the system of private enforcement as a whole. Doing away with the catalyst theory, the dissent argued, would “impede access to court for the less wellheeled”14 and discourage plaintiffs with meritorious but expensive claims from bringing suit. In other words, encouraging settlement in the short run will mean little if over time, opportunities for defendants to comply in response to a legal challenges decline because plaintiffs bring fewer enforcement actions in the first place. In response, the majority recognized the trade-off between encouraging settlement and preserving access to the judicial process, but minimized these concerns through two empirical assumptions. First, the majority claimed that strategic capitulation was unlikely to be much of a problem.15 15 Second, the majority dismissed the argument that restricting fee recovery will discourage plaintiffs with meritorious cases from filing suit, finding these “assertions” to be “entirely speculative and unsupported by any empirical evidence.”16 This article presents data that call into question the Court’s empirical assumptions. Based on these data, we argue that Buckhannon has had a chilling effect on the very forms of public interest litigation that Congress intended to encourage through fee shifting provisions. First, through an analysis of post-Buckhannon decisions, we illustrate how public interest litigation seeking broad social change involves certain structural features that render it particularly vulnerable to strategic capitulation. Then, drawing on data from our national representative survey of more than 200 public interest organizations, we show that the public interest organizations that take on paradigmatic public interest cases, such as class actions seeking injunctive relief against government actors, are the most likely to be affected by Buckhannon. We also present qualitative survey data that indicate that Buckhannon encourages strategic capitulation, makes settlement more difficult, and discourages both public interest organizations and private counsel from taking on enforcement actions. These far reaching effects, we argue, herald a shift away from private right enforcement toward more government power to both resist rights mandates and control the enforcement, and ultimately the meaning, of civil rights. In the following sections we present data from our study situated in the context of legal developments before and after Buckhannon. Section II discusses how courts interpreted the role of fee shifting statutes in civil rights enforcement in the period before Buckhannon, the Buckhannon decision itself, and the aftermath of Buckhannon for public interest litigation. Section III presents our survey methodology, as well as our predictions and empirical data regarding how Buckhannon affects public interest organizations. Section IV offers some conclusions about the implications of Buckhannon for rights enforcement and government power.

13

532 U.S. at 608-10.

14

Id. at 623.

15

Id. at 608-09.

16

Id. at 608. 24

III. BUCKHANNON AND THE PRIVATE ATTORNEY GENERAL ... C. The Aftermath of Buckhannon To begin to address the empirical realities of Buckhannon, in this section we discuss three recent cases to illustrate a trend we see emerging in the enforcement actions that have been affected by this decision. These illustrative cases share at least three common features: First, these actions sought to enforce important constitutional or statutory rights, and therefore at least arguably further the public policy interests behind the private attorney general doctrine. Second, these were claims against government defendants seeking a change in policy or a judicial mandate to government actors to comply with the law; if there were no private enforcement in claims such as these, it would be hard to imagine government actors stepping into the breach. Third, the plaintiffs in these cases were limited to injunctive relief or other equitable relief, and therefore could not rely on a claim for monetary relief to avoid mootness. Together, these cases present a set of structural conditions not uncommon in public interest cases that render claims vulnerable to fee loss as a result of defendants’ strategic behavior. ... III. THE EMPIRICAL REALITY OF BUCKHANNON Although judicial interpretations of Buckhannon give some sense of what is happening in federal litigation already underway, questions about the dynamic effects of Buckhannon remain. Does limiting the potential for fee recovery restrict access to the judicial process? Has Buckhannon stifled enforcement actions by reducing the pool of lawyers willing to take on these cases? We begin to answer these questions by examining empirically how Buckhannon has affected public interest organizations. For how many public interest organizations has Buckhannon made a difference? What organizational characteristics predict whether Buckhannon impedes an organization’s ability to pursue its goals? How have organizations been affected by this decision? What are the implications for social change litigation brought by private attorneys general? We turn to these empirical questions in the remaining sections of this paper by drawing on data from a national survey of public interest organizations in the United States. [IV]. CONCLUSION What conclusions can we draw from these data about the implications of Buckhannon for the federal system of civil rights enforcement? One possible interpretation is that Buckhannon is part of a larger trend directed at undermining the ability of advocates to harness the power of courts for social change. Along these lines, some commentators argue that a procedural attack on civil rights is underway.176 This attack includes doctrinal developments regarding sovereign immunity,177 legal challenges to the constitutionality of IOLTA funds,178 legislative restrictions on the activities of legal

176

See, e.g., Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. ILL. L. REV. 183 (2003); Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 YALE L. J. 1141 (2002); David Luban, Taking Out the Adversary: The Assault on Progressive Public Interest Lawyers, 91 CAL. L. REV. 209 (2003); Erwin Chemerinsky, Closing the Courthouse Doors to Civil Rights Litigants, 5 U. Pa. J. Const. L. 537 (2003). 177

Rubenfeld, supra note 176, at 148-152; Chemerinsky, supra note 176, at 540-41; Karlan, supra note 176, at 188-195. 178

See Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998); Brown v. Legal Foundation of Washington, 538 U.S. 216 (2002); Luban, supra note 168, at 227-236. 25

services lawyers,179 and political campaigns to limit the ability of law school clinics to represent clients who challenge established interests.180 What these developments have in common is that they are collateral, not frontal, attacks on civil rights. They do not directly attempt to challenge the normative public policies that support civil rights protections. Instead, they rely on technical legal strategies to erode the procedural and practical mechanisms through which those rights are enforced. As a result, these attacks are less visible than a direct assault on civil rights, and therefore less likely to arouse public opposition or protest. Buckhannon fits this pattern.181 As one commentator put it, Buckhannon is like the neutron bomb: it leaves the infrastructure still standing but kills the heart of statutes that rely on fee shifting to encourage enforcement.182 For public interest organizations, this interpretation is likely to ring true. Many public interest organizations that emerged in the 1960s and 1970s were modeled after progressive civil rights organizations that viewed the courts as the only access to policy making for disenfranchised groups or unpopular causes.183 The substantive successes of these organizations have made them targets for political campaigns to undermine their financial support.184 Buckhannon seems like one more installment in this campaign, and to be sure, to the extent that progressive movements rely on impact litigation strategies more than conservative movements do, the procedural attack on civil rights enforcement is likely to have a particular political valence. We believe that this interpretation is definitely part of the story, but we also think Buckhannon has even broader implications. We note that our data indicate that at least among public interest organizations, there is no statistical difference between progressive and conservative organizations in their reports of whether Buckhannon has made it more difficult for them to pursue their goals. Of course, there are far more progressive than conservative public interest law organizations, so this decision clearly weighs more heavily on progressive causes, yet at least among organizations that meet our definition, Buckhannon affects organizations across the political spectrum. This finding makes sense when one considers that conservative public interest organizations have been very successful in recent years in adopting impact litigation as a social change strategy. For example, conservative organizations have represented plaintiffs before the Supreme Court in religious freedom cases seeking access to public facilities for religious groups,185 and in challenges seeking to prohibit implementation of affirmative

179

See William P. Quigley, The Demise of Law Reform and the Triumph of Legal Aid: Congress and the Legal Services Corporation from the 1960s through the 1990s, 17 ST. LOUIS PUBLIC LAW REVIEW 241 (1998); Luban, supra note 176, at 220-226. 180

Luban, supra note 176, at 236-240.

181

Karlan, supra note 176, at 205-208; Luban, supra note 176, at 243-45; Chemerinsky, supra note 176, at 547. 182

Margaret Graham Tebo, Fee Shifting Fallout, ABA JOURNAL, July 2003, at 54.

183

Joel F. Handler, Betsy Ginsberg, & Arthur Snow, The Public Interest Law Industry, in PUBLIC INTEREST LAW: AN ECONOMIC AND INSTITUTIONAL ANALYSIS 42, 44-45 (Burton A. Weisbrod, Joel F. Handler, & Neil K. Komesar, eds. 1978). 184

Nan Aron, LIBERTY AND JUSTICE FOR ALL 14-21 (1989) (discussing the Reagan Administration campaign to defund progressive public interest activities). 185

See Hans J. Hacker, THE CULTURE OF CONSERVATIVE CHRISTIAN LITIGATION (Rowm an & Littlefield 2005) (discussing the role of conservative Christian public interest law firms in religious freedom 26

action programs.186186 These cases, which seek policy changes or injunctive relief, are the kind of actions that are now structurally vulnerable to Buckhannon. To us, Buckhannon’s broad effects across the political spectrum of right litigation indicate that the consequences of this decision extend even beyond the political struggles between left and right. Buckhannon and the larger attack on rights enforcement also may signal an ominous shift of power away from private enforcement of rights and toward government power, both to resist civil rights mandates and to control the enforcement, and ultimately the meaning, of these rights. Even before Buckhannon, the sovereign immunity doctrine insulated states from civil rights challenges; Buckhannon’s implications for suits seeking solely injunctive relief extend that insulation even further. Challenges to prison conditions, welfare policies, or decisions to deny access to facilities to religious groups all will be harder to mount because Buckhannon renders fee recovery so uncertain in these actions. In addition, Buckhannon is likely to change the state’s litigation strategy in these cases because it removes a significant incentive for early settlement. Instead, states may feel free to allow litigation to drag on and on, confident that strategic capitulation will protect it against an adverse judgment and fee award. In short, the symbiosis between Buckhannon and the sovereign immunity doctrine leaves little incentive to bring equitable claims against states: why engage in protracted litigation with scant prospect for recovering the costs of that litigation, or even a favorable judicial ruling, in the end? Second, to the extent that Buckhannon hamstrings the private attorney general, enforcement decisions for a variety of statutes, not limited to civil rights statutes, increasingly will fall to government actors such as underfunded administrative agencies. As a result, at the very least these discretionary decisions will be driven by a different set of incentives than those of the private attorney general. The decision to pursue a claim may become vulnerable to the political whims of changing administrations, and one can imagine circumstances, such as environmental actions or institutional reform claims, in which state and federal interests would align against enforcing rights that might nevertheless be in the public interest. Even apart from shifting structure of incentives for enforcement, the sheer magnitude of the task is daunting. If Buckhannon reduces private enforcement efforts, and our data suggest that it will, it would require a significant increase in government enforcement to replace the more diffuse and decentralized system of private attorneys general. It seems unlikely that there will be an infusion of funds into state and federal enforcement to fill the breach, particularly given other governmental priorities and likely political opposition from repeat players. Thus, Buckhannon may represent a much broader deregulatory judicial policy despite its guise as a mundane application of mere “statutory interpretation”. And, even if an infusion of funds did occur, such a change would have the practical effect of shifting the costs of enforcement to taxpayers and away from defendants who failed to comply with the law, because, of course, government enforcement actions can be “Buckhannoned” too. In short, such a retooling of rights enforcement would lose many of the structural advantages of private attorneys general, and give significantly more power to governmental actors to decide whether to enforce rights, and to choose which rights are worth enforcing at all.

litigation). 186

See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (Mountain States Legal Foundation); Grutter v. Bollinger, 539 U.S. 306 (2003) (Center for Individual Rights); see also Jean Stefancic & Richard Delgado, NO MERCY: HOW CONSERVATIVE THINK TANKS AND FOUNDATIONS CHANGED AMERICA’S SOCIAL AGENDA 47-51 (Temple University Press 1996) (discussing the role of conservative public interest organizations in challenges to affirmative action). 27

We view such a shift as normatively undesirable, and we note that the Court’s fee shifting decisions generally have not questioned the desirability or importance of the private attorney general in enforcing the law. Instead, the Court has minimized the threat its interpretations pose to private enforcement and emphasized the lack of any empirical evidence that limiting fee recovery would discourage claims by private parties. Our empirical findings suggest that this optimism may have been misplaced. Now that the negative implications of limiting fee recovery have begun to emerge, Congress and the courts should reconsider how Buckhannon can best be reconciled with preserving the federal system of rights enforcement though the private attorney general.

28

B. DISPUTING DEFENDANTS MOTION TO DISMISS I. INTRODUCTION Exhibit 1. U.S. Coast Guard Letter dated April 19, 2002. In the third paragraph of that letter Capt. Brusseau admits the following: “As you noted, the laws and regulations do not provide for such an endorsement nor do they prohibit it. Instead, the matter is left to my judgment. My decision, after considering all the material you have submitted, is that it would not be in the best interest of marine safety or security to initiate the endorsement you applied for.” That is precisely the point of my litigation these past for years. Whether or not firearms possession by individual U.S. seafarers ashore in the United States and aboard U.S. flag ships at sea (subject to the master’s discretion in accordance with maritime law for purposes of security duties) provides for marine safety and security as well as a benefit to public safety and security in interstate and intrastate travel. I have a First and Seventh Amendment right to petition the government for redress of grievances to prove Capt. Brusseau’s judgment is not only wrong but that he violated his Oath of Office to support and defend the Constitution of the United States (including the Bill of Rights) because he could not rely on the U.S. Code or the Code of Federal Regulations. In that situation he must rely on the U.S. Constitution and the Bill of Rights before he using his own “judgment” (i.e. discretion). Therefore his duty was not a discretionary one. Brannon P. Denning’s law review article, GUN SH Y : TH E SECOND AMENDMENT “UNDERENFORCED CONSTITUTIONAL NORM ”187 Citing Matthew Adler’s conclusion in POPULAR CONSTITUTIONALISM WHOSE PRACTICES GROUND U.S. LAW ?188

AND THE

RULE

OF

AS AN

RECOGNITION :

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. This is a point of consensus for modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the antipositivist Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law.

187

21 Harvard Journal of Law & Public Policy 719 (Summer, 1998)

188

University of Pennsylvania Law School, Public Law and Legal Theory Research Paper Series, Research Paper No.54, September 2004. 29

This Article has grappled with the tension between the positivist’s official- or judgecentered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I have termed this position “deep popular constitutionalism.” Indeed, it turns out – I have argued – that Dworkin’s account of law, in its ambition to generate associative duties for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists – is to dissolve it by providing a group-relative account of law. In arguing for that account, I have shown that throughout U.S. history a plurality of groups, both official and citizen groups, have actively sought to advance conceptions of U.S. constitutional law. Further, I have argued that “law,” taken either as an explanatory construct or as a normative construct, is best specified along grouprelative lines. Finally, I have explored the implications of the group-relative account for U.S. constitutional theory. This account may be wrong, even wrong-headed. But whatever the merits of the group-relative account of law, I hope this Article has accomplished one thing: to put the problem of the recognitional community on the agenda of constitutional theory. Analytical jurisprudence is not easy reading, and for those steeped in our constitutional history some of the literature may seem naïve in underplaying how contested fundamental questions of U.S. law have been.189 Still, this is a literature that constitutional scholars ignore at their peril. Works such as Hart’s The Concept of Law,190 Dworkin’s Law’s Empire,191 and Raz’s The Concept of a Legal System192 try to determine, with the greatest intensity and rigor, just what law is – in particular, just how the law governing some society connects to other facts about that society, or about some subset within it. At some point, surely, that connection is one that the intellectually serious constitutionalist will need to try to understand.

189

Consider, for example, Ken Himma’s assertion that “[nonjudicial] officials have a consistent history of treating the Court’s decisions as law, regardless of which direction they go.” Himma, supra note 44, at 175. That assertion overlooks the long history of debate about judicial supremacy. See supra text accompanying notes 137-144. Or consider Scott Shapiro’s view that officials as a whole within a legal system are engaged in the proto-SCA of creating and maintaining a unified system of rules – a view that, I have suggested, is difficult to square with the U.S. experience. See supra Part II.A. 190

See H.L.A. HART, T H E C O NC EPT

191

See Ronald Dworkin, L AW ’ S E M PIRE 255-56 (1986).

OF

L AW (2d ed. 1994)

192

See Joseph Raz, T H E C ONCEPT OF A L EG AL S YSTEM : AN I NTRO DU CTIO N TO TH E T H EO RY OF L EGAL S YSTEM 190 (2d ed. 1980). 30

The circumstances behind Exhibits 2 and 12 are prima facie evidence of the classic Cause and Effect resulting from errors of judgment by Capt. J. P. Brusseau. On page 2 of Defendants MEMORANDUM IN SUPPORT OF MOTION TO DISMISS (hereinafter referred to as MEMORANDUM discussing Exhibit 2 the Defense Attorney Richard Pence (Civil Chief, signing for Tim Griffin, U.S. Attorney) acknowledges the fact that the Capt. Brusseau (and Capt. Brusseau himself acknowledges the fact in the letter at Exhibit 2), received emails from me. This is true because I was aboard a U.S. Government vessel anchored off the coast of Klaipeda, Lithuania in May of 2002. Judicial Notice must be taken on the date of the letter at Exhibit 2 as being May 24, 2002. Judicial Notice must be taken on the admitted fact that Capt. Brusseau “mailed” his letter at Exhibit 2 to my home address in Arkansas. I hereby proclaim as fact that Capt. Brusseaue DID NOT NOTIFY MY BY EMAIL aboard ship anchored off the coast of Lithuania. Judicial Notice must be taken on the date of Exhibit 12 as being May 25, 2002, the very next day after Capt. Brusseau mailed his May 24, 2002 letter to my home address in Arkansas. I hereby proclaim the fact that there was no way I could have known about Capt. Brusseau’s letter dated May 24, 2002 when I emailed my Second Amendment advocacy & newsworthy article. Judicial Notice must be taken on Richard Pence’s MEMORANDUM on page 5 discussing Exhibit 12: Hamrick had sent to Admiral Collins a document which showed an individual pointing a handgun, with language which the Coast Guard regarded as threatening, and another showing holes in a target and blood dripping from the words “terrorists” and “criminals.” Judicial Notice must be taken that I emailed the “In the News” article to Capt. Brusseau, NOT to Admiral Collins (to the best of my recollection — although I could have emailed it to multiple recipients from an Internet café in Klaipeda, Lithuania) from the ship anchored off the coast of Lithuania. Because of the mis-perceived alleged threat by the Coast Guard of my “In the News” article, Either Capt. Brusseau or unknown others initiated a criminal investigation of me by dispatching two civilian special agents of the Naval Criminal Investigative Service from Italy to conduct a criminal interview with me. The Coast Guard had ordered me off the U.S. Government vessel with explicit orders to the master of the vessel not to divulge any information as to why I was taken off the vessel and placed in the Klaipeda Hotel to wait for the NCIS special agents. The U.S. Government vessel was scheduled to depart the following day for a 10-day naval exercise. The NCIS special agents did not arrive until two days later causing me to miss the ship’s

31

sailing. The NCIS special agents interviewed me for 2 hours until they were satisfied that I did not intend any threat to Capt. Brusseau or others. The NCIS special agents realized that the “In the News” article was intended to convey a fearful question crime victims face when a criminal points a gun at them with the intent to commit murder. The “In the News” was and still is a Second Amendment advocacy article suitable for media publication. The NCIS special agents were completely satisfied with my discovered innocence and left to file their report. This brings up a discovery question under Rule 56(f). The Court cannot properly grant the Motion to Dismiss when there exists a genuine issue of material fact brought up by the Defense Counsel to which I cannot present to the Court without the Government’s cooperation. What was in the NCIS Report to the Coast Guard? Did the NCIS fully exonerate me of all allegations made by the Coast Guard? Did the Coast Guard resent my innocence? Did the conspire with Michael Predergast of the Department of Transportation to issue the DOT Bar Notices in 2004 and in 2006? If these questions are answered in the affirmative then harassment and retaliation for exercising constitutionally protected rights becomes a genuine issue of material for a jury. On that basis the Government’s Motion to Dismiss must be denied thereby allowing my case to go to trial. This begs for another question. Since I have been criminal investigated by the NCIS at the request of the Coast Guard and since the evidence suggests that the Coast Guard conspired with the Department of Transportation to further harass me with DOT Bar Notices for my criticisms of the Coast Guard and for including the Coast Guard in a lawsuit does that make me a political dissident? “In the life of the human spirit, words are action, much more so than many of us realize who live in countries where freedom of expression is taken for granted. The leaders of totalitarian nations understand this very well. The proof is that words are precisely the action for which dissidents in those countries are being persecuted.” President Carter. Address, Notre Dame University, 22 May 1977. What the advocates of conformity and carefully regulated dissident opinion forget is that a free society cannot be a heavily controlled society. In their zeal to suppress the real and imagined enemies of the status quo, the intelligence agencies and their private allies tend to leave democracy behind and move in the direction of the totalitarian societies they abhor. Donna A. Demac, LIBERTY DENIED : THE CURRENT RISE OF CENSORSHIP IN AMERICA , 1990.

32

Denial of the political offender’s existence and legitimacy has forced extremism where conciliation would have been more productive. Labeled and hunted as common criminals and denied the opportunity for an orderly public airing of their grievances, political dissidents have often been unduly and unnecessarily Radicalized. Nicholas N. Kittrie, REBELS WITH A CAUSE : THE MINDS AND MORALITY OF POLITICAL OFFENDERS , 1971. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority dissident groups, who innumerable times have been the vanguard of democratic thought and whose programs were ultimately accepted. Earl Warren (1891-1974), Chief Justice, U. S. Supreme Court, Sweezey vs. New Hampshire, 1957. All discussion, all debate, all dissidence tends to question and in consequence, to upset existing convictions; that is precisely its purpose and its justification. Learned Hand (1872-1961), Judge, U. S. Court of Appeals. I believe that the community is already in process of dissolution where each man begins to eye his neighbor as a possible enemy, where non-conformity with the accepted creed, political as well as religious, is a mark of disaffection; where denunciation, without specification or backing, takes the place of evidence, where orthodoxy chokes freedom of dissent; where faith in the eventual supremacy of reason has become so timid that we dare not enter our convictions in the open lists, to win or lose. Learned Hand (1872-1961), Judge, U. S. Court of Appeals, Speech, New York University, 24 October 1952. The only way to keep men from agitating against grievances is to remove the grievances. An unwillingness to discuss these matters produces only dissatisfaction and gives comfort to the extreme elements in our country which endeavor to stir up disturbances in order to provoke Governments to embark upon a course of retaliation and repression. The seed of revolution is repression. Woodrow Wilson (1856-1924), U. S. President, Message to Congress, December 1919. Psychologically, it is important to understand that the simple fact of being interviewed and investigated has a coercive influence. As soon as a man is under cross-examination, he may become paralyzed by the procedure and find himself confessing to deeds he never did. In a country where the urge to investigate spreads, suspicion and insecurity grow. Joost A. Merloo, THE RAPE OF THE MIND , 1956. There is a principle which is a bar against all information, which is a proof against all argument, and which cannot fail to keep a man in everlasting ignorance – that principle is condemnation before investigation. Herbert Spencer (1820-1903), SOCIAL STATICS , 1850. There is no more fundamental axiom of American freedom than the familiar statement: In a free country we punish men for the crimes they commit but never for the opinions they have…. [This act] would put the 33

United States in the thought control business. It could give government officials vast powers to harass all of our citizens in the exercise of their rights of free speech. Harry S. Truman (1884-1972), U. S. President, Message, VETO OF THE MC CARRAN ACT , 22 September 1950. Without deviation, without exception, without any ifs, buts, or whereases, freedom of speech means that you shall not do something to people either for the views they express, or the words they speak or write. Hugo L. Black (1886-1971), U. S. Supreme Court Justice, ONE MAN ’S STAND FOR FREEDOM , 1963. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the constitution but freedom to continue to prevent others from publishing is not. Hugo L. Black (1886-1971), U. S. Supreme Court Justice, ONE MAN ’S STAND FOR FREEDOM , 1963. Criticism of government finds sanctuary in several portions of the First Amendment. It is part of the right of free speech. It embraces freedom of the press. Hugo L. Black (1886-1971), U. S. Supreme Court Justice, 1961. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. Louis D. Brandeis (1856-1941), U. S. Supreme Court Justice, Whitney v. California, 1927. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Louis D. Brandeis (1856-1941), U. S. Supreme Court Justice, Whitney v. California, 1927.

From Capt. Brusseau’s perspective, he received my “In the News” article the day after he mailed his May 24, 2002 letter to my Arkansas home. It is my opinion based on the evidence at hand that he presumed that I intend the “In the News” article to be threatening because he presumed I knew about the May 24, 2002 letter which, in truth, I did not know about that letter. If Capt. Brusseau had the wisdom and judgment to realize his negligence in failing to send an email to me on the ship on May 24, 2002 I would have then simply initiated a civil case at the U.S. District Court in Washington, DC for judicial review of the Coast Guard’s final agency action without the necessity of seeking damages. As things were then as the are now my “In the News” article was and still is a journalistic opinion by nature and therefore I had First Amendment rights to free speech and freedom of the press (the right to email the article to as many Government recipients as I saw fit).

34

Exhibit 2. U.S. Coast Guard Letter dated May 24, 2002. Capt. Brusseau’s May 24, 2002 letter discusses my various emails where I was exploring my legal options with the Coast Guard in a respectful manner. Judicial Notice must be taken on the last paragraph of page 2 of Capt. Brusseau’s letter dated May 24, 2002 at Exhibit 2. It is my contention the Capt. Brusseau attempt to confiscate First Amendment free speech/press material from me by unlawfully retaining possession of that material. I subsequently and immediately replied to Capt. Brusseau my objections to this unlawfully confiscation of First Amendment material (printed booklets). Capt. Brusseau eventually saw the wisdom of my objections and returned the protected material. My advise to Richard Pence: Not everything the Coast Guard clams is true. If the Court or the Defense Counsel desires to dig deeper into my case they will find that the merits of my case deserves a trial.

Exhibit 3. U.S. Coast Guard Letter dated April 29, 2003. Purposely re-applying for the renewal of my Merchant Mariners’ Document with the contested endorsement for National Open Carry. Exhibit 4. U.S. Coast Guard Letter dated January 7, 2004 Upping the ante I changed the requested endorsement to National Open Carry Small Arms and Light Weapons in counteract the United Nations gun control agenda. Exhibit 5. Docket Report U.S. District Court, DC 1:02-cv-1434-ESH Standard recital of case history. Howevery, because Defense Counsel elected to include a copy of the Docket Report from a previous case and that Docket Report contains prima facie evidence of extortion, 18 U.S.C. § 872 an extortion is a predicate act of Racketeering under the RICO Act, Defense Counsel has unwittingly provided evidence of Racketeering Activity validating my Civil RICO Act Complaint on its merits. Judicial Notice must be taken on Defense Counsels Exhibit 5, page 4, dated entry 02/24/2004 where it denotes: “USCA Appeal Fees received $105, receipt number 110231 re 15 Notice of Appeal, filed by DON HAMRICK (nmr). 35

Payment of that filing fee was coerced and involuntary and violated the Seamen’s Suit law, 28 U.S.C. § 1916. As the Court is fully aware the federal courts have extorted a more than $1,700 from me. That in itself deserves an FBI investigation under the RICO Act. Exhibit 6. Judge Huvelle Memorandum on Dismissal With Prejudice, Case No. 02-1435ESH dated October 9, 2002. I dispute Judge Huvelle’s Memorandum Order in my Complaint (Volume 1, page 119-151) and in Volume 4 Amendment Complaint, pp. 45-49 using international human rights terminology. Exhibit 7. Judge Huvelle Order Petition for Writ of Mandamus Denied With Prejudice; Case No. 02-1435, dated October 10, 2002 Joined with Exhibit 6. Exhibit 8. Thomson/West Search: Hamrick v. Bush Judgment, DC Circuit No. 02-5334, dated October 28, 2002. Joined with Exhibit 6. Exhibit 9. Judge Reggie B. Walton, Memorandum Opinion on Dismiss With Prejudice, U.S. District Court for DC, Case No. 03-2160, dated August 16, 2004. Boilerplate dismissal with prejudice. Exhibit 10. DC Circuit, Order, Case No. 04-56316, dated September 9, 2004, Affirming dismissal of RICO claims but removing “With Prejudice” stigma and Remanding on Second Amendment grounds. Boilerplate affirmation of Judge Walton’s Dismissal but remanded my case on Second Amendment grounds. Exhibit 11. DOT Bar Notice, dated September 17, 2004. Judicial Notice must be taken on the dates of Exhibit 10 and 11 as being 8 days apart from each other. The dates for these two exhibits imply a reasonable suspicion of a conspiracy between the Coast Guard and the DOT to obstruct the Plaintiff and prevent him from effectively performing his discovery duties. Exhibit 12. “In the News!” Article dated May 25, 2002. Sorry, but that article is a protected right of free speech and freedom of the press under the First Amendment.

36

Exhibit 13. Color-coded Bulls-Eye Target by Plaintiff Don Hamrick dated ©2004 for RICO Act Case No. 03-2160.

37

38

That color-coded bulls-eye target is protected First Amendment right of free speech to publicly criticize the Department of Homeland Security through word and art. I further criticize the Department of Homeland Security in Volume 1 of my Complaint in pp. 503-504. For what purpose does Defense Counsel have to include that particular item in his MEMORANDUM but to shock and prejudice the Judge against my case. The Defense Counsel employs that old dirty trick of playing to the emotions of the Judge. That color-coded bulls-eye target intended to convey the message that President Bush, Congress, and the Department of Homeland, by ignoring the border with Mexico and Canada, and by refusing to restore the Second Amendment right to keep and bear arms to the People, they are the principal players of a Racketeering Activity designed to keep the People disarmed and vulnerable and thereby giving freedom to the United States Government to continue operating outside the limits of the Constitution. The free speech quotations in Exhibit 1 apply also apply here. Exhibit 14. DOT Bar Notice August 11, 2006 Judicial Notice must be taken on the federal regulation, 41 C.F.R. § 102-74.390, and the District of Columbia Code, Chapter 22-3302, cited in the DOT Bar Notice of August 11, 2006 with the photograph depicted in the DOT Bar Notice of September 17, 2004 in Exhibit 11 of Defense Counsel’s MEMORANDUM . I include the text here for the Court’s convenience: CODE OF FEDERAL REGULATIONS TITLE 41 -- PUBLIC CONTRACTS AND PROPERTY MANAGEMENT CHAPTER 102 -- FEDERAL MANAGEM ENT REGULATION PART 102-74 -- FACILITY MANAGEM ENT -- TABLE OF CONTENTS SUBPART C -- CONDUCT ON FEDERAL PROPERTY 41 C.F.R. § 102-74.390 What is the policy concerning disturbances? All persons entering in or on Federal property are prohibited from loitering, exhibiting disorderly conduct or exhibiting other conduct on property which: (a) Creates loud or unusual noise or a nuisance; (b) Unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; (c) Otherwise impedes or disrupts the performance of official duties by Government employees; or (d) Prevents the general public from obtaining the administrative services provided on the property in a timely manner. 39

DISTRICT OF COLUMBIA CODE DIVISION IV. CRIMINAL LAW AND PROCEDURE AND PRISONERS . TITLE 22. CRIMINAL OFFENSES AND PENALTIES . (REFS & ANNOS ) SUBTITLE I. CRIMINAL OFFENSES . CHAPTER 33. TRESPASS ; INJURIES TO PROPERTY . IV DC Code § 22-3302. Unlawful entry on property. Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in the Jail for not more than 6 months, or both, in the discretion of the court.

What offense did I commit to be slapped with the two DOT Bar Notices? Dare I say I did not commit any offense at all because I was not in Washington, DC at the time implied by the photograph in the DOT Bar Notice of September 17, 2004 because I was in detained in Klaipeda, Lithuania for emailing the “In the News” so indicated by Defense Counsel’s Exhibit 12. That photo was part of an article I wrote criticizing the Coast Guard for their actions pulling me off a U.S. Government vessel and unlawfully detaining me in a foreign hotel, stranding me for 12 days at that hotel while the ship conducted a 10-day naval exercise, and emailing that article, apparently including the Coast Guard in its email distribution. It further implies that the Coast Guard conspired with DOT to issue that Bar Notice in retaliation for my criticism of the Coast Guard. This is clearly political retaliation over the First Amendment right of free speech and freedom of the press. And because of the Coast Guard’s unlawful actions and now because of Defense Counsel’s inclusion of that article I fear that I may have been elevated to the position of a political dissident subject to arrest and confinement for exercising my right to speak freely without the threat of government harassment or incarceration. Citing Section 4 of Andrew Jay Mcclurg, THE RHETORIC OF GUN CONTROL , 42 Am. U.L. Rev. 53, FALL, 1992 discussing the fallacies of argument in the political debate over gun control: 4. Ad hominem Whatever either side lacked in positive emotional identifications between issues and personalities was made up for with negative connections. A time-honored rule of effective persuasion is that it may be more profitable to attack the arguer than it is to attack the 40

argument.[FN82] This is the fallacy of argumentum ad hominem, or “argument directed against the man.”[FN83] Few fallacies are more potent or more often employed. --FN82: The classic tale, presumably apocryphal, involves an English barrister who had neglected to prepare for trial, counting instead on a solicitor to investigate and prepare the case. When the barrister arrived on the morning of trial, the solicitor handed him the trial brief. Surprised by its thinness, the barrister opened it and found only a note reading: "No case; abuse the plaintiff's attorney." M. COPI, INTRODUCTION TO LOGIC 52, at 60 (2d ed. 1961); FN83: See COPI, supra note 5, at 54 (discussing and defining ad hominem fallacies).

I have filed a Motion for Permanent Injunction against the two DOT Bar Notices and it is the Court’s duty is immediate issue the injuncton given the unlawful circumstances the Bar Notices were issued. Now I move on to Section II of Defense Counsel’s MEMORANDUM , p. 6-7.

II. Judicial Defendants Judicial Notice must be taken with Defense Counsel’s Memorandum on p. 6, third sentence of the first paragraph of that section: “Nevertheless, it is clear that all claims against them are barred by judicial immunity.” This is perjury! The truth is: Mireles v. Waco, 502 U.S. 9 (1991) Held: “Judicial immunity is an immunity from suit, not just from ultimate assessment of damages, and it can be overcome only if a judge’s actions are nonjudicial or were taken in the complete absence of all jurisdiction.” In VOLUME 2 - THE EVIDENCE my claims against Judge Walton are shown to be administrative and not judicial and therefore Judge Walton is NOT immune from litigation. Now, if I have shown that Judge Walton being from the same District Court as Judge Richard W. Roberts and Judge Roberts recommended “to the Calendar Committee that it seek to have a judge from another district assigned to this matter” and that Judge Walton was ultimately assigned to my case when he was already presiding over another Second Amendment case (in which he ruled that the Second Amendment does

41

not apply to the citizens of the District of Columbia) in defiance of Judge Roberts’ recommendation then that begs the question of questionable circumstances on Judge Ellen Segal Huvelle’s assignment to my case in 2002. U.S. CODE TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 47 - FRAUD AND FALSE STATEMENTS 18 U.S.C. § 1001. Statements or entries generally (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both. (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

I find it utterly reprehensible that Congress passed 18 U.S.C. § 1001(b) immunity from prosecution to attorneys on perjury while citizens are arrested and prosecuted for the same offense. This is, by definition, judicial tyranny and a breach of the Fifth, Ninth, and Tenth Amendments. Judicial Notice must be taken of a law review article by Daniel Walfish, MAKING LAWYERS RESPONSIBLE

FOR TH E

TRUTH : THE INFLUENCE

OF

MARVIN FRANKEL 'S PROPOSAL

FOR

REFORMING

ADVERSARY SYSTEM , 35 Seton Hall L. Rev. 613 (2005): Introduction On December 16, 1974, Judge Marvin Frankel told an audience of the Association of the Bar of the City of New York that "our adversary system rates truth too low among the values that institutions of justice are meant to serve." n1 The judge had become frustrated with the "trickery and obfuscation" n2 that he had witnessed during his nine 42

TH E

years on the United States District Court for the Southern District of New York. He suggested that the adversary ideal should be modified to make truth "the paramount objective." n3 To implement this suggestion, Frankel proposed tentative amendments to the American Bar Association's (ABA) Code of Professional Responsibility. Frankel's amendments n4 would have required a lawyer to (1) disclose all relevant evidence and prospective witnesses, even when the lawyer does not intend to offer that evidence and those witnesses; (2) prevent or report any untrue statement by a client or witness, or [*614] any omission of material fact, that makes other statements misleading; n5 and (3) at trial, examine witnesses "with a purpose and design to elicit the whole truth, including particularly supplementary and qualifying matters that render evidence already given more accurate, intelligible, or fair than it otherwise would be." n6 Frankel was not the first person to address the tension between a lawyer's duty to the client and to the court. n7 Nonetheless, his views became such an important reference point in modern debate over the adversary system that in 1996, the article version of his speech was ranked the seventy-sixth most cited law review article of all time. n8 Marvin Frankel, who died on March 3, 2002, n9 came to epitomize concern with the value of truth in the legal system and was for a time the country's most prominent critic of the adversary system. n10 This Article explores the influence of Frankel's proposals both on discourse about the legal system as well as on actual legal practice. In the academy, as Part I of this Article will show, Frankel's specific proposals never gained wide acceptance. The most heated debate concerning the duty of candor n11 has involved the question of whether [*615] a criminal defense lawyer has a duty to disclose a client's perjury or other wrongdoing. n12 Frankel's proposals were far more radical than the already controversial requirement that a lawyer should inform the court of his client's wrongdoing, and his proposals were overshadowed by discussion of that more conservative proposal. n13 Frankel, however, succeeded in one respect. His specific proposals were meant to be tentative; n14 his larger purpose was to inspire the legal profession to talk more about the value of truth in an adversary system and about ways to promote that value. In this he succeeded, at least in the academy. He was less successful in producing change in adversarial practice. As Part II will show, even though Frankel was a member of the commission that drafted the American Bar Association's 1983 Model Rules of Professional Conduct, and early drafts of the Rules essentially reflected his position, his views were gradually washed out of successive drafts until, with minor exceptions, the final version contained no trace of them. n15 Part III will demonstrate, however, that a disclosure requirement similar to that proposed by Frankel landed in the Rules of Professional Conduct that New Jersey adopted in 1984. n16 Until now, New Jersey's 43

extraordinary rule has not been literally enforced. Nonetheless, the New Jersey Supreme Court and New Jersey's disciplinary bodies appear to have become increasingly interested in recent years in using the rule to remind lawyers about the importance of candor. In a case decided in June 2004, the New Jersey Supreme Court presented its most extensive discussion of the rule to date and, for the first time ever, cited the very Frankel proposal that appears to be the rule's ancestor. n17 Thirty years after the publication of Frankel's article, this development raises the possibility that attorneys practicing in New Jersey will be held to a noticeably higher standard [*616] of candor than attorneys practicing in other jurisdictions. The final section of this Article draws lessons from the experience of New Jersey and concludes that Frankel-type reforms are unlikely to succeed without pervasive changes in the attitudes and habits of the legal profession. n18 Frankel's ideas appear also to be at least partly responsible for another development, but it is one beyond the scope of this Article. In 1993, the Federal Rules of Civil Procedure (FRCP) were amended to allow district courts to opt in to a regime requiring pretrial disclosure of all material that each party plans to use in support of its own claims and defenses. n19 In 2000, the FRCP were amended again to make that regime mandatory. n20 These amendments are traceable to the ideas expressed in two law review articles written by Wayne Brazil and William Schwarzer respectively, n21 who were both clearly influenced by Frankel. n22 While these amendments to the FRCP help to reduce the adversarial character of civil discovery, they do not actually make lawyers responsible for the truth. The amended rules merely require that a party disclose what the adversary would ultimately learn anyway - namely, how the party intends to support its own claims and defenses. The rule does not impose, as Frankel's proposals would have, an affirmative obligation to disclose unfavorable material. n23 [*617] Because these discovery rules do not impose such a duty, and the subject of pretrial disclosure has been extensively treated elsewhere, n24 this Article does not specifically discuss this topic. Of course, discovery battles are a major aspect of the adversary character of civil lawsuits, but the discussion in this Article is limited to ethics standards.

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III. Plaintiff’s Complaint Does Not Comply With Rule 8(a), Fed.R.Civ.P. This too, is perjury with immunity. Who can you trust to tell the truth? Judicial Notice must be taken on my Volume 1 Civil RICO Act Complaint, pp. 16-18 complies with Rule 8(a)(1); pp. 71-82 complies with Rule 8(a)(2); and pp. 551-558 complies with Rul 8(a)(3). Therefore my Civil RICO Act Complaint does, in fact and law, Comply with Rule 8(a). Moreover, Judicial Notice must be taken on p. 4 herein for the sections titled RULE OF LIBERAL CONSTRUCTION and PRO SE PLEADINGS IV. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s RICO Claim Defense Counsel is confusing Bivens with the RICO Act. In Civil RICO it matters not that the Defendants were acting in the personal or official capacity which is applicable under Bivens. My case is NOT a Bivens case. As to Defense Counsel’s assertion that I must show both a grant of subject matter jurisdiction and a waiver of sovereign immunity? I have already shown these prerequisites in Volume 1 Civil RICO Act Complaint, p. 9, Section 3. My original cases relied on 46 C.F.R. § 1.01-3 Judicial Review and 46 C.F.R. § 1.03-15 General, as the statutory waiver of sovereign immunity for a simple writ of mandamus for Second Amendment rights. But because the U.S. Government elected to pull every dirty trick under the sun, up to and including extortion of filings by the U.S. Supreme Court (total of $600) which is an criminal offense under 18 U.S.C. § 872, which evolved into racketeering activity. In my particular case, the U.S. Government waived its sovereign immunity and my Civil RICO Act case is the outgrowth of a lawless Government’s opposition in opposition to my case.

V. Plaintiff’s Claim for a Writ of Mandamus is Barred By Res Judicata, And Even If It Were Not, Plaintiff Cannot Satisfy the Essential Elements for a Writ of Mandamus. My Petition for Writ of Mandamus is NOT barred by Res Judicata because I have added the United Nations as lead defendant thereby expanded to scope of my case beyond Res Judicata. To say that I cannot satisfy the essential elements for a Writ of Mandamus is a denial of my right to trial. I can prove Mandamus and the Courts and Justice Department are terrified that I can prove Mandamus.

VI. The Court Lacks Subject Matter Jurisdiction Over Any Constitutional Claims. Again, Defense Counsel confuses Bivens with RICO. 45

VII. Should the Complaint be Construed to Assert Claims Against the Defendants In Their Individual Capacities, such Claims are Barred for Multiple Reasons A. Lack of Personal Jurisdiction I litigated my cause of action in the federal courts of the District of Columbia (personal jurisdition) for 4 agonizing years. But because of judicial bias, corruption, my case was jerked around the Federal Rules of Civil Procedure (abuse of my right to due process) never getting past the Motion to Dismiss until one day I filed my own Motion to Dismiss so that I could try my home venue in the interest of justice. Personal jurisdiction cannot have greater weight than “the interest of justice.” B. Lack of Venue I am not relying on 28 U.S.C. § 1391(e) for personal capacity (Bivens) claims. I am relying on 28 U.S.C. § 1402(a)(1); and the change of venue, 28 U.S.C. § 1404, from the corrupt judicial system in the District of Columbia to what I presume and hope for a less corrupt judicial system in Arkansas. C. Principles of Respondeat Superior are not Applicable. To the best of my knowledge, I doubt Respondeat Superior applies in Civil RICO. D. The Essential Elements of a Civil RICO Claim are Lacking. Again, Defense Counsel propels a lie. Defense Counsel’s use of Exhibit 5, Docket Report, p. 4, below Item #17 is documented evidence of an extorted payment of the filing. 18 U.S.C. § 872. Being that I am a U.S. merchant seaman having filed this case as a merchant seaman under 28 U.S.C. § 1916, I am exempt from pre-paying the filing fee. Extortion is a predicate act of racketeering under 18 U.S.C. § 1961(1). E. The Defendants have Absolute or Qualified Immunity from Suit No they don’t. Immunity is waived under 46 C.F.R. § 1.01-3 Judicial Review and 46 C.F.R. § 1.03-15 General,

46

VIII. Any Claims Not Dismissed Should Be Transferred to the U.S. District Court for the District of Columbia. Where I have shown that the U.S. District Court employed corrupt practices designed to prevent my case from proceeding past the Motion to Dismiss by any means necessary, including economic motions of extortion because I complied with the personal jurisdiction in selected the U.S. District Court in the District of Columbia only to be rewarded with corrupt practices blocking my case. The District Court in DC refused to transfer my case to Arkansas for my claim that it would be in the interest of justice as provided for under 28 U.S.C. § 1404(a). It is now my claim that it is in the interest of justice that my case remains in Arkansas. The District of Columbia is the home court advantage of corruption and injustices. The remainder of my Objection to Motion to Dismiss contain supporting information for my Objection.

47

C. T REATIES

INTERNATIONAL BILL OF HUMAN RIGHTS SIGNED BY U.S.

DECLARATIONS & COVENANTS UNIVERSAL DECLARA TION

OF

HUMAN RIGH TS

! Adopted: December 10, 1948 by 48 Member States (including U.S.). Full text in Appendix 1.

INTERNATIONAL COVENANT CULTURAL RIGH TS

ON

ECONOMIC , SOCIAL

Adopted: December 16, 1966 Registration: January 3, 1976, No. 14531. Entry into force: January 3, 1976, in accordance with article 27 1 . Last update: November 1, 2006 Status: Signatories: 66, Parties: 155, as of ____________________ Full text in Appendix 2. ON

CIVIL

AND

BY

(Adopted) 10 Dec. 1948

AND

! ! ! ! !

INTERNATIONAL COVENANT

RATIFIED U.S.

No Oct. 5, 1977

(Currently in Force)

POLITICAL RIGH TS

! Adopted: December 16, 1966 ! Registration: March 23, 1976, No. 14668. ! Entry into force: March 23, 1976, in accordance with article 49 , for all provisions except those of article 41; ! Entry into force: March 28,1979 for the provisions of article 41 (Human Rights Committee), in accordance with paragraph 2 of the said article 41. ! Last update: November 1, 2006 ! Status: Signatories: 67, Parties: 160, as of ______________________ Full text in Appendix 3.

OPTIONAL PROTOCO L TO THE INTERNATIONAL COVENANT CIVIL AND POLITICAL RIGH TS

Oct. 5, 1977

(Currently in Force)

ON

! ! ! !

Adopted: December 16, 1966 Entry into force: March 23, 1976 Last update: November 1, 2006. Status: Signatories: 34 , Parties: 108 , as of ___________________ Full text in Appendix 4.

SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGH TS , AIMING AT

June 8, 1992

No No

(Currently in Force)

THE

ABO LITION OF THE DEATH PENALTY

No

! ! ! ! !

Adopted: December 15, 1989 Registration: July 11, 1991, No. 14668. Entry into force: July 11, 1991 Last update: November 1, 2006 Status: Signatories: 34, Parties: 59, as of _____________________ Full text in Appendix 5.

48

No

(Currently in Force)

And in addition to:

UNITED NATIONS CHARTER & OTHER INTERNATIONAL HUMAN RIGHTS CONVENTIONS AND DECLARATIONS SIGNED BY U.S.

RATIFIED U.S.

C O NVENTIO N O N THE P REVENTIO N A ND P U N ISH M E NT O F TH E C RIM E O F G ENO CID E ! Adopted: December 9, 1948 ! Registration: 12 January 1951, No. 1021. ! Entry into force: January12, 1951 ! Last update: ! Status: Signatories: 41, Parties: 133, as of ___________. Full text in Appendix 7. of Volum e 4 Am ended Complaint

Dec.11, 1948

Nov. 25, 1988

V IEN NA C O NVENTIO N O N THE L A W O F T REATIES ! Adopted: Vienna, May 23, 1969 ! Registration: U.N. Doc. A/CONF. 39/27. ! Entry into Force: January 27, 1980 ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 8. of Volum e 4 Am ended Complaint

No

No

V IEN NA C O N V E NTIO N O N S U C C ESS IO N O F S TA TES IN R ESP EC T O F T REATIES . ! Adopted: Vienna, August 21, 1978 ! Registration: ! Entry into Force: November 6, 1996 ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 9. of Volum e 4 Am ended Complaint

No

No

DECLARATIONS & CONVENTIONS

BY

UNITED NATIONS CHARTER Full text in Appendix 6. of Volum e 4 Am ended Complaint

V IEN NA C O NVENTIO N O N THE L A W O F T REATIES BETWEEN S TA TES A ND I NTERNA TIO NA L O RG A NIZATIO NS O R BETW EEN I NTERNA TIO NA L O R G A N IZ A TIO N S . ! Adopted: Vienna, March 21, 1986 ! Registration: ! Entry into force: ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 10. of Volum e 4 Am ended Complaint

49

DECLARATIONS & CONVENTIONS

SIGNED BY U.S.

U.N. C O N V E NTIO N A G A INST C O RRU P TIO N ! Adopted: October 31, 2003 ! Registration: ! Entry into Force: December 14, 2005 ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. ! RUD: U.N. is waiting for the U.S. to submit their Reservations, Understandings & Declarations (RUD). Full text in Appendix 11. of Volum e 4 Am ended Complaint

RATIFIED U.S.

BY

NEW!

M A RITIM E L A BO U R C O N VEN TIO N ! Note: Consolidates (in more than 100 pages) the subject matter of 66 maritime labour instruments relating to seafarers’ conditions of work that had been adopted by the International Labour Organisation (ILO) between 1920 and 1996. ! Adopted: February 23, 2006 ! Registration: ! Entry into force: ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 12. of Volum e 4 Am ended Complaint

Oct. 30, 2006

NEW!

D EC LA RA TIO N O F B A SIC P RINC IP LES O F J U STIC E FO R V IC TIM S O F C RIM E A ND A B U SE O F P O W ER A D O PTED by General Assembly resolution 40/34 of 29 November 1985 Full text in Appendix 13. of Volum e 4 Am ended Complaint D ECLA RA TIO N O N THE R IG HT A ND R ESP O NSIB ILITY O F I ND IVID U A LS , G RO U P S A ND O RG A NS O F S O CIETY TO P RO M O TE A ND P RO TECT U NIVERSA LLY R EC O G NIZED H U M A N R IG HTS A ND F U ND A M ENTAL F REED O M S , General Assembly resolution 53/144, A/RES/53/144, 8 March 1999 Full text in Appendix 14. of Volum e 4 Am ended Complaint T H E A M E RIC A N D ECLA RA TIO N O F THE R IG HTS A ND D U TIES O F M A N (1948) Full text in Appendix 15. of Volum e 4 Am ended Complaint

50

Not Yet (Still new)

Not Yet (Still new)

DECLARATIONS & CONVENTIONS A M E RIC A N C O N V E NTIO N O N H U M A N R IG H TS : P A C T O F S A N J O S E , C O STA R IC A ” ! Adopted: San Jose, Costa Rica, Nov. 22, 1969 ! Registration: ! Entry into Force: July 18, 1978 ! UN Registration: August 27, 1979 No. 17955 ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 16. of Volum e 4 Am ended Complaint

THE ADDITIONAL PROTOCO L TO THE AMERICAN CONVENTION ON HUMAN RIGH TS IN THE AREA OF ECONOMIC , SOCIAL AND CULTURAL RIGH TS (Protocol of San Salvador) Full text in Appendix 17. of Volum e 4 Am ended Complaint

CONVENTION

ON THE

HIGH SEAS

! ! ! ! !

Adopted: Geneva, 29 April 1958 Registration: Entry into force: Last update: Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 18. of Volum e 4 Am ended Complaint U NITED N A T IO N S C O NVENTIO N O N THE L A W OF TH E S EA ! Adopted: Montego Bay, 10 December 1982 ! Registration: ! Entry into force: ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 19. of Volum e 4 Am ended Complaint A G REE M EN T REL A TING TO TH E IM P LEM EN TA TIO N O F P A RT XI O F THE U NITED N A T IO N S C O NVENTIO N O N THE L A W O F TH E S EA O F 10 D ECEM BER 1982. ! Adopted: New York, 28 July 1994 ! Registration: ! Entry into force: ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 20. of Volum e 4 Am ended Complaint

51

SIGNED BY U.S.

June 1, 1977

RATIFIED U.S.

No

BY

DECLARATIONS & CONVENTIONS A G REEM ENT FO R THE I M PLEM ENTATIO N O F THE P R O V IS IO N S O F THE U NITED N A T IO N S C O NVENTIO N O N THE L A W O F TH E S EA O F 10 D ECEM BER 1982 RELA TIN G TO TH E C O NSERVA TIO N A ND M A NA G EM EN T O F S TRA D D LIN G F IS H S TO CKS A ND H IG H LY M IG RA TORY F ISH S TO C K S . ! Adopted: New York, 4 August 1995 ! Registration: ! Entry into force: ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 21. of Volum e 4 Am ended Complaint A G REEM ENT ON THE P RIVILEG ES A ND I M M U N ITIES O F TH E I NTERNA TIO NA L T RIBU NA L FO R THE L A W OF TH E S EA . ! Adopted: New York, 23 May 1997 ! Registration: ! Entry into force: ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 22. of Volum e 4 Am ended Complaint P RO TOC O L ON TH E P RIVILEG ES A ND I M M U N ITIES O F TH E I NTERNA TIO NA L S EA BED A U THO RITY . ! Adopted: Kingston, 27 March 1998 ! Registration: ! Entry into force: ! Last update: ! Status: Signatories: ____, Parties: _____ as of ___________. Full text in Appendix 23. of Volum e 4 Am ended Complaint

52

SIGNED BY U.S.

RATIFIED U.S.

BY

D. Nelson Lund: HAVE GUN , CAN ’T TRAVEL : THE RIGHT TO ARMS UNDER THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV, George Mason University School of Law, Law and Economics Working Paper Series 05-34

HAVE GUN, CAN’T TRAVEL: R IGHT TO A RMS UNDER THE P RIVILEGES AND IMMUNITIES C LAUSE OF A RTICLE IV THE

Nelson Lund* George Mason University School of Law Law and Economics Working Paper Series 05-34 * Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law. For helpful comments, thanks to Dave Bach, Steve Gilles, and Kevin Miller. Financial assistance from the Law and Economics Center at George Mason is gratefully acknowledged. David Bach is a former Navy SEAL, a commissioned officer in the Naval Reserve, an experienced firearms instructor, and an attorney.193 He is now employed by the Department of Defense, where he holds a Top Secret security clearance.194 This model citizen resides in the Commonwealth of Virginia, where he is licensed to carry a concealed weapon.195 Bach periodically takes his wife and three young children to upstate New York by car in order to visit his parents.196 This lengthy journey goes through several high-crime areas in New York, and he wants to carry a defensive firearm on his person, either openly or concealed, in case of a criminal assault during one of these trips.197 New York issues licenses to carry firearms to its own citizens who meet certain statutory criteria, and to nonresidents who have their principal place of employment or business in the state, but not to visitors like Bach.198 If he carried his personal weapon with him, he would be committing a felony.199

193

Bach v. Pataki, 2005 WL 105265 (2d. Cir). I have provided informal advice to David Bach and his attorneys, David C. Frederick and Kevin J. Miller, and I am indebted to their research and insights about this case. 194

Id.

195

Id.

196

Id.

197

Id.

198

Bach, 289 F. Supp. 2d at 221-22; N.Y. Penal Law § 400.00.3(a) (Consol. 2004).

199

N.Y. Penal Law § 265.02(4). 53

Believing this discriminatory treatment violates his constitutional rights, Bach filed an action for declaratory and injunctive relief in federal district court.200 The Second Circuit has now rejected his claims that New York’s statute violates the Second Amendment and the Privileges and Immunities Clause of Article IV.201 In this brief essay, I will argue that Bach’s Privileges and Immunities claim is valid, and that the nature of the claim throws an interesting light on a provision of the Constitution whose importance exceeds the amount of attention it has received from the Supreme Court.202 I. COMITY AND THE COURTS A. Origin of the Privileges and Immunities Clause Article IV of the Constitution provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”203 Often called the Comity Clause,204 this provision has generally been interpreted to require every state to refrain from invidious discrimination against citizens of other states.205 For most modern readers, that interpretation probably does not leap immediately to mind from the bare words of the Constitution.206 It is, however, consistent with what we know about the origin and purpose of the clause, which was barely discussed at the Constitutional Convention.207 Charles Pinckney apparently drafted the language, and he mentioned in a contemporaneous pamphlet that the provision was modeled on Article IV of the Articles of Confederation.208 The Articles provided: The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively.209 200

Bach, 289 F. Supp. 2d at 219.

201

Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005); U.S. CONST. art. IV, § 2, cl. 1.

202

I will not discuss the issues raised by Bach’s Second Amendment claim. My focus here on the Privileges and Immunities Clause should not be taken to carry any negative implications about the merits of Bach’s Second Amendment arguments. 952 UMKC Law Review [Vol. 73:4 203

U.S. CONST. art. IV, § 2, cl. 1. For purposes of this provision, residency and citizenship are almost always treated interchangeably. Hicklin v. Orbeck, 437 U.S. 518, 524 n.8 (1978); Austin v. New Hampshire, 420 U.S. 656, 662 n.8 (1975). 204

See, e.g., Austin, 420 U.S. at 660.

205

See, e.g., Gary J. Simson, D IS CRIM IN ATIO N A GAINST N O NRESIDENT S I M M UNITIES C LAUS E OF A RTICLE IV, 128 U. PA. L. Rev. 379, 381 (1979). 206

U.S. CONST. art. IV, § 2, cl. 1.

207

Simson, supra note 14, at 384.

208

See, e.g., id. at 383-84.

209

Arts. of Confederation art. IV. 54

AND TH E

P RIVILEG ES

AND

Assuming, as Pinckney suggested, that our Privileges and Immunities Clause was meant to convey more concisely the substance of this parallel provision in the Articles,210 four significant consequences follow. First, the purpose of the Clause is to foster comity among the states, rather than to secure such other conceivable aims as economic growth or efficiency.211 Second, “the privileges of trade and commerce,” which are given special emphasis in the Articles, do not exhaust the privileges and immunities covered by the Privileges and Immunities Clause.212 Third, the right to travel freely among the states is one of the rights protected by the Clause.213 Fourth, the states are left free to define the rights of their own citizens as they see fit, at least with respect to commercial privileges and presumably with respect to others as well; in other words, the Privileges and Immunities Clause is an antidiscrimination provision rather than a source of particular substantive rights.214 The special attention to commercial rights in the Articles probably reflected the fact that this is the area in which state governments have the most obvious incentives to grant unjust preferences to their own citizens. These same incentives, and the corresponding interests of those who are disadvantaged by such preferences, make it easy to see why many cases decided under the Privileges and Immunities Clause have involved commercial regulations.215 Notwithstanding these incentives, however, case law interpreting the Privileges and Immunities Clause is sparse. This is not necessarily the result of self-restraint by state governments. Rather, a great deal of litigation that might have arisen under the Privileges and Immunities Clause has been decided instead under the judicially invented dormant commerce clause doctrine.216 This doctrine, which purports to be derived from the Interstate Commerce Clause, forbids many forms of state discrimination against interstate commerce.217 Much of this discrimination involves preferences for a state’s own citizens, and many regulations that are invalid under the dormant commerce doctrine would no doubt also violate the Privileges and Immunities Clause.218 The dormant commerce protections for free trade, however, generally have a broader sweep, and they have generated a far richer body of case law.219

210

Simson, supra note 13, at 383-84.

211

U.S. CONST. art. IV, § 2, cl. 1.

212

Id.

213

Id.

214

Id.

215

See, e.g., Hicklin, 437 U.S. at 518; Toomer v. Witsell, 334 U.S. 385 (1948).

216

See generally, Brannon P. Denning, W H Y TH E P RIVILEG ES AN D I M M UNITIES C LAUS E OF A RTICLE IV C ANNOT R EPLACE TH E D ORM ANT C LAUS E D O C TRIN E , 88 MINN. L. REV. 384 (2003). 217

Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 6 (1st Cir. 1992).

218

See, e.g., Denning, supra note 24, at 393-94.

219

For a useful summary of the main differences between dorm ant com merce doctrine and the Privileges and Immunities Clause, see Denning, supra note 25. There are som e form s of economic discrimination that may violate the Privileges and Immunities Clause without violating the Commerce Clause. Compare White v. Mass. Council of Constr. Employers, 460 U.S. 204 (1983) (Commerce Clause does not constrain city’s freedom to discriminate against nonresidents in contracts for public works projects), with United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984) (Privileges and Immunities 55

Although the dormant commerce doctrine forbids more forms of commercial discrimination than the Privileges and Immunities Clause, the Article IV prohibition is broader in a different way, for it is not limited to economic regulations.220 Thus, for example, states are forbidden to impose residence requirements on outsiders seeking medical services within their borders (including elective procedures such as abortions),221 or on those seeking senior positions in the state’s National Guard.222 Similarly, the noncommercial aspects of giving access to out-of-state attorneys have been stressed in cases invalidating residence requirements for the practice of law.223 B. Judicial Interpretation Although the purpose and general nature of the Privileges and Immunities Clause have been relatively noncontroversial, it has not proved easy to create a coherent legal doctrine that can decide concrete cases. The first significant discussion of the provision came from Justice Bushrod Washington, sitting as a circuit justice.224 In Corfield v. Coryell,225 he upheld a New Jersey law forbidding citizens of other states to harvest oysters in New Jersey waters, saying: [W]hat are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned,

Clause requires city to provide adequate justification for discriminating against nonresidents in contracts for public works projects). 220

U.S. CONST. art. IV, § 2, cl. 1.

221

Doe v. Bolton, 410 U.S. 179, 200 (1973).

222

Nelson v. Geringer, 295 F.3d 1082. 1090 (10th Cir. 2002).

223

See, e.g., Sup. Ct. of N.H. v. Piper, 470 U.S. 274, 281 (1985).

224

See Corfield v. Coryell, 6 F. Cas. 546 (C.C. E.D. Pa. 18230 (No. 3230).

225

Id. 56

are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.” But we cannot accede to the proposition which was insisted on by the counsel, that, under this provision of the constitution, the citizens of the several states are permitted to participate in all the rights which belong exclusively to the citizens of any other particular state, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such state, the legislature is bound to extend to the citizens of all the other states the same advantages as are secured to their own citizens. A several fishery, either as the right to it respects running fish, or such as are stationary, such as oysters, clams, and the like, is as much the property of the individual to whom it belongs, as dry land, or land covered by water; and is equally protected by the laws of the state against the aggressions of others, whether citizens or strangers. Where those private rights do not exist to the exclusion of the common right, that of fishing belongs to all the citizens or subjects of the state. It is the property of all; to be enjoyed by them in subordination to the laws which regulate its use. They may be considered as tenants in common of this property; and they are so exclusively entitled to the use of it, that it cannot be enjoyed by others without the tacit consent, or the express permission of the sovereign who has the power to regulate its use.226 Read carefully, this passage raises more questions than it answers. Justice Washington, for example, says that the Privileges and Immunities Clause protects only “fundamental” rights, without explaining either how this limitation can be reconciled with the Constitution’s reference to “all” privileges and immunities or how fundamental and non-fundamental rights can be distinguished.227 Conversely, Washington appears to say that the clause covers “the elective franchise,” although this is among the most obvious examples of a right that one would not expect states to make equally available to citizens and non-citizens.228 The holding in the case, moreover, is in considerable tension with the stated theory.229 Commercial fishing appears to be a “fundamental” right (subsumed under “the right to acquire and possess property of every kind”) that Washington was unwilling to protect in this case only because the fishery in question was the “property” of the New Jersey citizenry.230 The courts of New Jersey, however, were even more obviously “owned” by the state’s citizens—who presumably used tax dollars to create and operate them—yet Washington insists that non-citizens are guaranteed the right “to institute and maintain actions of any kind in the courts of the state.”231

226

Id. at 551-52.

227

Id. at 551.

228

Id. at 552.

229

Corfield, 6 F. Cas. at 552.

230

Id.

231

Id. 57

Although Corfield has been cited approvingly in subsequent cases,232 it has sometimes been ignored,233 and its theory even disparaged.234 For a long time, the Court proceeded in a case-by-case fashion, without attempting to formulate a general test. During this period, the Court took it for granted that the right to have weapons for self-defense was protected by the Privileges and Immunities Clause.235 In the Dred Scott case, Chief Justice Taney concluded that blacks could not be citizens, in part because that would mean that if free blacks traveled to a slave state, the federal Constitution “would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”236 As Justice Curtis’ dissent suggested, Taney’s argument was defective because the Privileges and Immunities Clause left untouched the authority of every state to impose qualifications and restrictions (including racial restrictions) on such rights.237 But Curtis did not challenge Taney’s assumption that the Privileges and Immunities Clause would forbid a state from discriminating against nonresidents as such in the exercise of such fundamental rights as freedom of speech and freedom to carry arms.238 Finally, in its 1948 decision in Toomer v. Witsell,239 the Court attempted to synthesize a general framework: The primary purpose of this clause, like the clauses between which it is located—those relating to full faith and credit and to interstate extradition of fugitives from justice—was to help fuse into one Nation a collection of independent, sovereign States. It was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy .... In line with this underlying purpose, it was long ago decided that one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State. Like many other constitutional provisions, the privileges and immunities clause is not an absolute. It does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must 232

See, e.g., Saenz v. Roe, 526 U.S. 489, 501 n.14 (1999); McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 233 (1934); McCready v. Va., 94 U.S. 394, 395 (1876); Slaughter-House Cases, 83 U.S. 36, 75-76 (1873). 233

E.g., Toomer, 334 U.S. 385; W ard v. Md., 79 U.S. 418 (1870); Conner v. Elliot, 59 U.S. 591

234

E.g., Piper, 470 U.S. at 282 n.10 (1985).

235

See Scott v. Sanford, 60 U.S. 393 (1857).

236

Id. at 417.

237

Id. at 583-84 (Curtis, J., dissenting).

238

Id.

239

334 U.S. 385.

(1855).

58

be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them. The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures.240 This framework reflects an approach quite different from Corfield’s.241 Justice Washington appeared to think that the limiting principle in the Privileges and Immunities Clause was a distinction between fundamental and non-fundamental rights, and that there would not be much disagreement about how to classify particular rights.242 The Toomer approach begins instead by distinguishing permissible from impermissible legislative purposes, and scrutinizes challenged laws for an adequate means/end nexus with a permissible purpose.243 Toomer’s approach recognizes a real difficulty in the application of the Privileges and Immunities Clause. The Clause was meant to foster comity among the states, but not to eliminate the states as independent, self-governing entities. Like many other general antidiscrimination provisions in the law, the Privileges and Immunities Clause cannot quite be read to ban all forms of discrimination.244 Perhaps most obviously, the literal language of the Clause seems to require states to allow non-citizens to vote in state elections, and indeed in the elections of more states than one, or to hold elective office in the

240

Id. at 395-96 (footnotes omitted).

241

Corfield, 6 F. Cas. 546.

242

Cf. John C. Eastman, Re-Evaluating the Privileges or Immunities Clause, 6 Chap. L. Rev. 123, 128 (2003) (“[T]he provisions of Article IV (and later of the Fourteenth Amendment) guaranteeing the ‘privileges and immunities’ of citizenship and a ‘republican’ form of government simply cannot be understood apart from the natural law principles of the Declaration [of Independence] from which they were drawn.”); Douglas G. Smith, The Privileges and Immunities Clause of Article IV, Section 2: Precursor of Section 1 of the Fourteenth Amendment, 34 San Diego L. Rev. 809, 898-99 (1997). All of the state governments guaranteed the fundamental rights of property and person in their state constitutions. Furthermore, these privileges and immunities were embodied in the English common law and adopted by the colonists in America. The Framers of the Constitution and the framers of the Fourteenth Amendment thought that these rights flowed from the principles of natural law and that therefore they would be embodied in the fundamental law of all “free governments.” All free governments would respect these rights of citizens. . . . The Privileges and Immunities Clause may have been designed to forbid discrimination in whatever rights were granted, and the rights that happened to be granted were practically identical in the several states because of the common heritage of the states. Id. (footnotes omitted). 243

Something like the Toomer means/end analysis may have been implicit in Corfield’s allowance for “such restraints as the government may justly prescribe for the general good of the whole,” and in Corfield’s denial that “the citizens of the several states are perm itted to participate in all the rights which belong exclusively to the citizens of any other particular state, merely upon the ground that they are enjoyed by those citizens.” Corfield, 6 F. Cas. at 552. If so, however, it becomes difficult to see any analytically useful purpose that might be served by Corfield’s reference to “fundamental” rights. 244

One well known example is the principle of constitutional law according to which the Fourteenth Amendment is a “a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Because all laws treat some people differently than others, the Court has been required to undertake an unending project of distinguishing between permissible and impermissible forms of inequality. 59

state.245 Similarly, the language seems to imply that if a state taxes its own citizens to raise funds for public schools for their children, it must allow out-of-staters to send their children to these schools without paying for the privilege.246 That reading of the Clause would point toward the destruction of the states as states. On the other hand, the purpose of the Privileges and Immunities Clause would easily be defeated if states were able to deny outsiders every right whose existence is made possible only by contributions from the states’ own citizens. That would mean that visitors from out of state could be denied access to the courts, police protection, the right to travel on public highways, and so forth. That would spell the end of any meaningful constitutional demand for comity among the states. Toomer’s solution to this problem has the advantage of enabling courts to make reasoned decisions about particular cases, and to apply the same kind of analysis to all privileges and immunities without any need to determine which are “fundamental.”247 In Toomer itself, South Carolina required licenses to trawl for migratory shrimp in the state’s coastal waters, and the fee for a nonresident license was a hundred times greater than the fee charged to residents, effectively excluding nonresidents from the fishery.248 Rather than rejecting or approving discriminatory licensing fees as a general matter, the Court concluded that South Carolina was permitted “to charge non-residents a differential which would merely compensate the State for any added enforcement burden they may impose or for any conservation expenditures from taxes which only residents pay.”249 Because the state had not shown that the enormous fee differential in this case had any reasonable relationship to such cost differentials, the Court invalidated the regulation on the ground that there was no substantial reason for the higher fee beyond the mere fact that the targets of the discrimination were citizens of other States.250 The corresponding disadvantage of the Toomer approach is that the kind of judicial reasoning it requires is relatively undisciplined. Deciding which forms of discrimination are reasonable, and which are not, entails a kind of balancing that invites courts to make essentially political decisions. It was apparently for this reason—and especially because they feared that the majority’s approach could undermine “the continued retention by the States of powers that historically belonged to the States, and were not explicitly given to the central government or withdrawn from the States”—that Justices Frankfurter and Jackson rejected the Toomer approach.25159 Instead, these justices supported the bright

245

The Supreme Court has not interpreted the Privileges and Immunities Clause to lead to these counterintuitive results. See Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 383 (1978). 246

Cf. Martinez v. Bynum, 461 U.S. 321, 333 (1983) (“The Constitution permits a State to restrict eligibility for tuition-free education to its bona fide residents.”). 247

Toomer, 334 U.S. at 385.

248

Id. at 395.

249

334 U.S. at 399.

250

Id. at 403.

251

See Toomer, 334 U.S. at 407-09 (Frankfurter, J., concurring in part). 60

line ownership-of-natural-resources theory that had been applied in Corfield and later was adopted by the Court itself in McCready v. Virginia.252 Although there have been disputes within the Court about the reasonableness of particular forms of state regulation,253 Toomer’s analytic approach has generally been followed in subsequent cases.254 There is, however, one remarkable exception. In Baldwin v. Fish and Game Commission of Montana,255 the Court suddenly reverted to the Corfield fundamental rights approach.256 In this case, Montana had imposed a licensing fee for elk hunting by nonresidents that was several times higher than the fee charged to residents.257 Rather than analyze the state’s justifications for the differential, the Court simply declared that no analysis was needed: Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause? Merely to ask the question seems to provide the answer. We repeat much of what already has been said above: Elk hunting by nonresidents in Montana is a recreation and a sport. In itself—wholly apart from license fees—it is costly and obviously available only to the wealthy nonresident or to the one so taken with the sport that he sacrifices other values in order to indulge in it and to enjoy what it offers. It is not a means to the nonresident’s livelihood. The mastery of the animal and the trophy are the ends that are sought; appellants are not totally excluded from these. The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved. Appellants’ interest in sharing this limited resource on more equal terms with Montana residents simply does not fall within the purview of the Privileges and Immunities Clause. Equality in access to Montana elk is not basic to the maintenance or well-being

252

94 U.S. at 395-96. The Toomer majority distinguished McCready on the ground that it involved non-migratory oysters found in the state’s inland waters whereas Toomer involved migratory shrimp in the state’s coastal waters. More generally, however, the majority added: The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. And there is no necessary conflict between that vital policy consideration and the constitutional command that the State exercise that power, like its other powers, so as not to discriminate without reason against citizens of other States. Id. at 402 (footnote omitted). Thus, the majority appeared to reject the use of the ownership theory to create the kind of bright-line rule favored by Frankfurter and Jackson. 253

See, e.g., Piper, 470 U.S. 274; Sup. Ct. of Va. v. Friedman, 487 U.S. 59 (1988).

254

See, e.g., Toomer, 437 U.S. at 527-28; Piper, 470 U.S. at 280-81.

255

436 U.S. 371 (1978).

256

Id. at 392-93.

257

Id. at 372-74. 61

of the Union. Appellants do not—and cannot—contend that they are deprived of a means of a livelihood by the system or of access to any part of the State to which they may seek to travel. We do not decide the full range of activities that are sufficiently basic to the livelihood of the Nation that the States may not interfere with a nonresident’s participation therein without similarly interfering with a resident’s participation. Whatever rights or activities may be “fundamental” under the Privileges and Immunities Clause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is not one of them.258 To the extent that there is a rationale implicit in this statement, it might seem to lie in the fact that sport hunting is “not a means to the nonresident’s livelihood.”259 But the Court had previously held that the Privileges and Immunities Clause in fact does apply to activities that are not a means to a livelihood.260 Nor could the Court have seriously meant to suggest that all, or perhaps even any, of the forms of discrimination previously struck down under this Clause involved some sort of imminent threat to the “maintenance or well-being of the Union.”261 Justice Brennan’s dissenting opinion (joined by Justices White and Marshall) argued that it made no sense to combine the Toomer and Corfield approaches, and contended on the basis of an extensive analysis that the Court had already implicitly and correctly rejected Corfield’s approach in favor of Toomer’s.262 These arguments, however, were apparently no match for the majority’s conviction that sport hunting by wealthy visitors is not sufficiently “fundamental” to merit protection from unreasonably discriminatory treatment by state governments.263 Thus, the law as it currently stands allows the states to discriminate against noncitizens with respect to some undefined class of activities that are deemed to be trivial or frivolous. Accordingly, courts now apply a two-step analysis, generally asking first whether a challenged form of discrimination falls within the Baldwin exception for non-fundamental rights; if not, courts then proceed to determine whether the discrimination is justified under the Toomer test. II. THE RIGHT TO ARMS AND THE PRIVILEGES AND IMMUNITIES CLAUSE Perhaps in recognition of the ipse dixit at the heart of Baldwin, subsequent courts have restricted the Baldwin exception to closely analogous forms of amusement such as recreational boating,264

258

Id. at 388.

259

Id.

260

E.g., Doe, 410 U.S. 179 (1973).

261

Baldwin, 436 U.S. at 388.

262

Id.at 394-402 (Brennan, J., dissenting).

263

Id.at 388.

264

Haw. Boating Ass’n v. Water Transp. Facilities Div., 651 F.2d 661, 666-67 (9th Cir. 1981). The court seems to have regarded this as an alternative holding because it also concluded, more fundam entally, that the plaintiffs lacked standing to raise a Privileges and Immunities claim. Id. at 666. 62

participation in high school interscholastic sports,265 and sunbathing, picnicking and snorkeling at the beach.266 David Bach’s desire to protect his life and the safety of his family from the threat posed by armed criminals has nothing in common with these activities. The right of self-defense is the most basic of all rights in our liberal tradition.267 Indeed, Bach’s right to the means of defending himself and his family is more fundamental than any of the rights that the Supreme Court has already deemed worthy of protection under the Privileges and Immunities Clause, such as the right to pursue a common calling,268 to engage in commercial fishing,269 to practice law,270 or to purchase medical services.271 Whatever the extent of New York’s authority to restrict the possession and carrying of handguns through nondiscriminatory laws may be, that authority in no way undermines the proposition that the right involved is fundamental for purposes of the Privileges and Immunities Clause. If it did, the states’ unquestioned police power authority over such matters as employment, professional practice, and commercial relations would bring virtually all of the rights protected by the Privileges and Immunities Clause within the Baldwin “exception” for non-fundamental rights. One aspect of Bach’s case that makes it look somewhat different from most other Privileges and Immunities cases is that New York’s discriminatory licensing scheme does not seem to confer any significant benefit on New York residents. Unlike fishermen who compete in a common pool, or lawyers who compete for clients, Bach’s exercise of a right to protect himself from violent criminals would not obviously diminish the ability of New York citizens to protect themselves in the same way.272 It is possible to imagine a jurisprudence of the Privileges and Immunities Clause that would have made this a significant factor, and treated discrimination differently depending on whether or not it appeared to be part of a zero-sum game. The Supreme Court, however, foreclosed this approach when it decided that states may not forbid nonresidents to purchase medical services within their borders.273 In this case, the state government was affirmatively disadvantaging the commercial interests of an important class

265

Alderding v. Ohio High Sch. Athletic Ass’n, 779 F.2d 315 (6th Cir. 1985).

266

Daly v. Harris, 215 F. Supp. 2d 1098, 1112 (D. Haw. 2002).

267

For a m ore detailed discussion of this point, see Nelson Lund, T H E S EC O N D A M E ND M EN T , P O LITICAL L IBERTY , AND TH E R IG H T TO S ELF -P RESERVATIO N , 39 Ala. L. Rev. 103 (1987). 268

Piper, 470 U.S. at 280 n.9.

269

Toomer, 334 U.S. 385.

270

Friedman, 487 U.S. 59.

271

Bolton, 410 U.S. 179.

272

It is possible that in some situations the denial of handgun licenses to nonresidents might confer some benefit on a state’s own citizens. After Florida liberalized its concealed carry laws in 1987, anecdotal evidence suggested that armed robbers began targeting tourists because they knew that visitors from out of state would be unarmed. Wayne Lapierre, G U N S , C RIM E , AN D F REEDO M 22-23 (1994). If violent criminals are given an incentive to prey on nonresidents because these visitors are much less likely to be armed, that could be expected to reduce the number of attacks on the state’s own citizens. 273

Doe, 410 U.S. at 200-01. 63

of its own citizens, namely the medical industry, and was not conferring any material benefit on any class of its own citizens.274 It follows, a fortiori, that the right to the means of defending one’s life from criminals is a type of right to which the Privileges and Immunities Clause applies. The Court’s insistence on applying the Privileges and Immunities Clause to state laws that do not involve rent-seeking in the classic sense is quite appropriate. It is almost certainly true that commercial preferences represent the kind of discrimination most likely to trigger retaliatory regulations from sister states, and thus to engender a spiral of ill will that would threaten the “maintenance or wellbeing of the Union.”275 But it is not true that this is the only kind of discrimination that can generate resentment and retaliation. Nor is there any reason to confine the reach of the Privileges and Immunities Clause to those forms of discrimination likely to lead directly to major interstate disputes. Whatever the motive for New York’s decision to give its own citizens greater protection from armed criminals than it gives to visitors from other states, that decision conveys at least a message of relative indifference to the lives and safety of its visitors. Had New York enacted a statute forbidding its law enforcement officials to investigate and prosecute crimes against nonresidents, no one could argue with a straight face that the Privileges and Immunities Clause would not apply.276 The statute at issue in David Bach’s case differs from this hypothetical statute only in degree, which confirms that the Baldwin exception for nonfundamental rights is inapplicable here. The Second Circuit avoided deciding whether the right to arms is fundamental under Baldwin. Assuming, arguendo, that it is fundamental, Judge Richard C. Wesley’s opinion held that New York’s discriminatory treatment of out-of-state citizens is justified nonetheless. Invoking Toomer’s exception for cases in which there is “something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed,”27785 the Second Circuit concluded that the challenged regulation is justified by administrative convenience. To appreciate the extraordinary nature of this conclusion, one must begin by noting that the New York handgun statute gives officials a remarkably wide range of discretion in granting and revoking licenses on the basis of “good character, competency and integrity,”

274

Id. at 200-01.

275

Baldwin, 436 U.S. at 388.

276

The fact that such a law might also violate the Equal Protection Clause does not imply that the Privileges and Immunities Clause is inapplicable. First, the original Constitution did not contain an Equal Protection Clause, and the framers of the Privileges and Immunities Clause obviously could not have expected this aspect of equal protection to be somehow “reserved” for treatment under a then-nonexistent constitutional provision. Second, the Supreme Court has never suggested that if a law violates some other provision of the Constitution, then it cannot violate the Privileges and Immunities Clause. Third, it may well be that a law like this should not be held to violate the Equal Protection Clause unless it violates the Privileges and Immunities Clause. See Baldwin, 436 U.S. at 406 n.8 (Brennan, J., dissenting) (“[W ]here a State discriminates solely on the basis of noncitizenship or nonresidency in the State, it is my view that the Equal Protection Clause affords a discriminatee no greater protection than the Privileges and Immunities Clause”) (cross-reference omitted). 277

Bach v. Pataki, 2005 WL 1052565, *8 (quoting Hicklin v. Orbeck, 437 U.S. at 526, which was in turn quoting Toomer, 334 U.S. at 398). 64

a discretion that is so broad as to raise serious constitutional questions on that basis alone.278 New York courts have, for example, upheld revocations where a licensee appeared to be “agitated” while in possession of a handgun,279 and where a licensee showed “poor judgment” by failing to safeguard his weapon while accompanying a Boy Scout troop.280 The Bach court held that information about such incidents is more likely to find its way to New York licensing authorities in the case of New York residents than in the case of out-of-staters. According to the Second Circuit, this difference is enough to meet Toomer’s “substantial reason” test, which requires valid independent reasons for discrimination against out-of-staters, as well as proof that the degree of discrimination bears a close relationship to those reasons.281 Under the Second Circuit’s approach, there is probably no regulation on any subject that could not be upheld under the Toomer test. The court did not claim that New York has any organized system for monitoring its licensees for behavior exhibiting characteristics such as “agitation” or “poor judgment.” Rather, New York licensing officials simply happen to hear about such things from time to time, and they sometimes exercise their virtually unbounded discretion to revoke somebody’s license. Based on the (rather plausible) assumption that these officials are somewhat more likely to hear about behavior they don’t like when it involves New York residents than when it involves out-of-staters, the Second Circuit found the Toomer test satisfied. Under such reasoning, however, Toomer itself must have been wrongly decided. In that case, South Carolina imposed a much higher license fee on out-of-state shrimp fishermen than it did on its own citizens, and the state responded with a barrage of allegedly important distinctions between in-state and out-of-state fishermen. The Supreme Court pointedly declined to defer to the state: [The State defendants] mention, without further elucidation, the fishing methods used by non-residents, the size of their boats, and the allegedly greater cost of enforcing the laws against them. One statement in the [state defendants’] brief might also be construed to mean that the State’s conservation program for shrimp requires expenditure of funds beyond those collected in license feesCfunds to which residents and not non-residents contribute. Nothing in the record indicates that non-residents use larger boats or different fishing methods than residents, that the cost of enforcing the laws against them is appreciably greater, or that any substantial amount of the State’s general funds is devoted to shrimp conservation. But assuming such were the facts, they would not necessarily support a remedy so drastic as to be a near equivalent of total exclusion. The State is not without power, for example, to restrict the type of equipment used in its fisheries, to graduate license fees according to the size of the boats, or even

278

See Bach v. Pataki at *3 n. 9 (citing Suzanne Novak, Why The New York State System For Obtaining A License To Carry A Concealed Weapon Is Unconstitutional, 26 Fordham Urb. L.J. 121, 165-66 (1998) (arguing that “[t]he sole ‘proper cause’ standard for the issuance of a carry license is the equivalent of a standardless delegation, which, in effect, grants . . . officials the discretion to apply their own public policy on gun control”)). 279

Bach v. Pataki at *4 (citing Finley v. Nicandri, 272 A.D.2d 831, 831 (3d Dep’t 2000)).

280

Bach v. Pataki at *4 n.12 (citing Lang v. Rozzi, 205 A.D.2d 783, 783 (2d Dep’t 1994)).

281

334 U.S. at 396. 65

to charge non-residents a differential which would merely compensate the State for any added enforcement burden they may impose or for any conservation expenditures from taxes which only residents pay. We would be closing our eyes to reality, we believe, if we concluded that there was a reasonable relationship between the danger represented by non-citizens, as a class, and the severe discrimination practiced upon them.282 Similarly, in Bach v. Pataki, New York made no showing that the serendipitous “monitoring” effects on which the Second Circuit based its holding plays any significant role in serving the legitimate goals of the state’s licensing system. Nor did New York show that it was unable to monitor out-of-state license holders in ways that were sufficient to serve those legitimate goals. Nor did New York show that it could not provide for monitoring of out-of-state residents, financed if necessary by higher license fees on the out-of-staters, that would be at least as effectual as the serendipitous, and apparently very minor, effects of in-state residency. There is, in short, no “reasonable relationship between the danger represented by non-citizens, as a class, and the severe discrimination practiced upon them.”283 Toomer is not the only Supreme Court decision rejecting administrative convenience arguments that were at least as strong as the one on which the Second Circuit relied in Bach v. Pataki. In Doe v. Bolton, for example, the Court invalidated a statute forbidding out-of-staters to purchase abortions, notwithstanding the Court’s acknowledgment that “[a] requirement of this kind, of course, could be deemed to have some relationship to the availability of post-procedure medical care for the aborted patient.”284 92 In Supreme Court of New Hampshire v. Piper, the state defended its refusal to license outof-state attorneys on the ground that they would be less likely to be available for judicial proceedings. The Court acknowledged the plausibility of this assumption, but concluded that the problem would probably not be severe, and could in any event be addressed through less restrictive means.285 Ironically, and serendipitously, the Supreme Court has recently had occasion to review another case in which the Second Court relied on an administrative convenience argument similar to the one on which it relied in the Bach case. Even more ironically, but perhaps not serendipitously, the same judge was the author of both Second Circuit opinions. In Swedenburg v. Kelly,286 the Second Circuit upheld a New York statute forbidding out-of-state wineries to sell their product to New York consumers unless the out-of-state winery establishes a physical presence in New York. Judge Wesley’s opinion rejected a challenge under the Privileges and Immunities Clause on the ground that the statute did not discriminate against out-of-state wineries,287 notwithstanding his recognition that “out-of-state wineries 282

Toomer, 334 U.S. at 398-99 (emphasis added; footnotes omitted).

283

Id. at 399.

284

410 U.S. at 200.

285

470 U.S. at 286-87. The court used a similar analysis in refusing to uphold discrimination based on the state’s similarly plausible suggestion that out-of-staters would be less likely to perform an appropriate amount of pro bono work. Id. at 287. 286

358 F.3d 223 (2d Cir. 2004), rev’d sub nom. Granholm v. Heald, 125 S. Ct. 1885 (2005).

287

Id. at 239-40. Judge Wesley’s opinion contains an odd “cf.” cite to Supreme Court of Virginia v. Friedman, 487 U.S. 59, 70 (1988), which Wesley incorrectly describes as “invalidating a Virginia Supreme Court rule permitting Virginia residents entrance to the state bar without an examination.” The actual holding 66

will incur some costs in establishing and maintaining a physical presence in New York, costs not incurred by in-state wineries.”288 The court acknowledged that the statute raised serious issues under the dormant commerce doctrine, but held that because the physical presence requirement made it easier for New York to monitor the behavior of out-of-state wineries, the statute was a valid exercise of the state’s authority under Section 2 of the Twenty-First Amendment.289 In Granholm v. Heald,290 the Supreme Court reversed the Second Circuit’s Swedenburg decision, rejecting its interpretation of the Twenty-First Amendment and holding that New York’s physical presence rule violated the Commerce Clause. Whatever one may think about the disagreement between these two courts about the Twenty-First Amendment, the more significant point for the Bach case is that the Supreme Court rejected a variety of monitoring and administrative arguments pressed by New York. Contrary to Judge Wesley’s opinion, the Supreme Court accepted the rather obvious conclusion that the New York statute did discriminate against out-of-state wineries, and stressed that “[o]ur Commerce Clause cases demand more than mere speculation to support discrimination against out-of-state goods,” namely a finding based on “concrete record evidence” that nondiscriminatory alternatives are unworkable.291 No such “concrete record evidence” existed in Bach v. Pataki, and the Second Circuit’s reliance on monitoring by serendipity is not a substitute for such evidence. Although the Supreme Court did not grant certiorari on the Privileges and Immunities Clause claim in Granholm, the analyses used under that Clause and under the dormant commerce approach are substantially

was that Virginia may not withhold this privilege from nonresidents while offering it to residents. In any case, neither the actual holding nor Wesley’s mischaracterization of the holding supports the Second Circuit’s conclusion in Swedenburg— if anything Friedman’s holding undermines it. Although he doesn’t mention it, there is one passage in Friedman that might be read to lend support to Wesley’s analysis. Near the end of the Friedman opinion, the Supreme Court says that Virginia’s residency requirement was largely redundant because of a different and less restrictive rule requiring attorneys admitted without examination to maintain a full-time practice and office in the state. Perhaps the Second Circuit saw an analogy between Virginia’s office requirement and the physical presence requirement at issue in Swedenburg. Even so, this would not support Swedenburg’s conclusion that the New York physical presence requirement “does not provide New York residents with advantages unavailable to nonresidents.” 358 F.3d at 239. The Friedman Court did not uphold the in-state office requirement (which was apparently not challenged in that case), and certainly did not say or imply that the requirement does not disadvantage outof-state attorneys. On the contrary, Friedman invoked the in-state office rule only to show that Virginia’s residency requirement did not serve any additional nondiscriminatory purpose. And even if Friedman were read to implicitly uphold the in-state office rule, that would only mean that it was justified by the specific interests Virginia had in controlling the behavior of its attorneys. It would not imply that New York’s very different interests in monitoring the behavior of wine vendors are sufficient to justify its physical presence requirement. 288

358 F.3d at 238.

289

Id. at 237-39.

290

125 S. Ct. 1885 (2005).

291

Id. at 1907. 67

similar with respect to the questions at issue here.292 Accordingly, Granholm strongly suggests that the Second Circuit’s holding in Bach v. Pataki was error, and that it was an error the Supreme Court should correct. III. CONCLUSION The principal defense of diversity jurisdiction in The Federalist Papers consists of Alexander Hamilton’s claim that this feature of Article III would prove vital in preserving the nation from violations of the Privileges and Immunities Clause: It may be esteemed the basis of the Union that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal, which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.293 The Supreme Court has recognized that state governments can have a variety of motives for the “evasion and subterfuge” that Hamilton foresaw, and the Court has accordingly insisted that discrimination against the residents of sister states be scrutinized with a skeptical eye.294 This has not led to anything like a per se rule forbidding such discrimination. A simple-minded rule of nondiscrimination, for example, could have the practical effect of giving nonresidents an unjust advantage over residents, as in cases where a state has taxed its own citizens in order to provide a public good that would invite free-riding by outsiders. Nor has the Court interpreted the Clause to require states to treat non-citizens as if they were citizens with respect to political rights such as voting and holding public office. Nor, it is important to stress, has the Privileges and Immunities Clause been interpreted to require states to give visitors the same substantive rights that they enjoy in their home states, or the substantive rights that a federal court thinks all Americans should have. The Privileges and Immunities Clause created a rule of nondiscrimination, not a license for

292

“Although appellants raise no Commerce Clause challenge to the Act, the mutually reinforcing relationship between the Privileges and Immunities Clause of Art. IV, ' 2, and the Com m erce Clause— a relationship that stems from their common origin in the Fourth Article of the Articles of Confederation, and their shared vision of federalism, renders several Commerce Clause decisions appropriate support for our conclusion [in this Privileges and Immunities Clause case].” Hicklin v. Orbeck, 437 U.S. 518, 531-32 (1978) (footnote and citation omitted). 293

Alexander Hamilton, James Madison & John Jay, F EDERALIST P APERS , N O . 80 reprinted in F EDERALIST P APERS , at 478 (Clinton Rossiter ed. The New American Library) (1961). 294

See, e.g., Zobel v. Williams, 457 U.S. 55, 79-80 (1982). 68

TH E

federal courts to impose on the nation some uniform judicially-created scheme of personal liberties. Although the Privileges and Immunities Clause is “not an absolute,”295 neither is it a precatory invitation to “be nice” or a green light for discrimination that falls short of provoking civil war. Under existing Supreme Court precedent, New York has failed to adequately justify its decision to grant handgun licenses to its own citizens and selected groups of nonresidents, but not to other nonresidents who meet all the statutory criteria except for residency. The Second Circuit’s decision to uphold New York’s discriminatory regulation is a reminder that the lower federal courts have not been purged of what Hamilton called “local attachments.” Perhaps such attachments have contributed, no doubt subconsciously if at all, to what looks rather like “evasion and subterfuge” of the Privileges and Immunities Clause. If so, perhaps the U.S. Supreme Court—which Hamilton recognized as the one tribunal free of local attachments—will correct the Second Circuit’s error. The Baldwin decision, however, sounds a disquieting note. For reasons that its opinion left quite murky, the Baldwin Court created an exception from the Privileges and Immunities Clause for the right to engage in elk hunting. One cannot help suspecting that the ruling may have been driven at least in part by a cultural prejudice against a form of recreation that is distasteful to many people in the social class from which federal judges are overwhelmingly drawn. Such prejudices evince a different kind of parochialism than the geographic provincialism on which Hamilton focused in The Federalist, but they are no less a threat than “local attachments” to an impartial application of the Constitution. Given the widespread misgivings about the value of an armed citizenry among the elite social class that provides us with our federal judges, it is at least conceivable that the Supreme Court itself would engage in something like what Hamilton condemned as “evasion and subterfuge.” Were that to happen, it would be a reminder that Hamilton only thought that the Supreme Court will never be “likely to feel any bias inauspicious to the principles on which [the Union] is founded.” Unlikely is not the same as impossible.

295

Toomer, 334 U.S. at 396. 69

E. C ASE L AW AND O THER A UTHORITIES R ELATING TO THE R IGHT TO T RAVEL 1. Patricia Johnson; Michael Au France v. City of Cincinnati, 6th Circuit296 Section IV. B. In analyzing whether a particular right implicates the protection of the Due Process Clause, we first carefully define the asserted right and then ask whether it is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.E.2d 772 (1993) (internal quotation marks and citations omitted); see also Michael H. v. Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). Given these instructions, we believe the relevant, asserted right implicated by this case is a right to travel locally through public spaces and roadways. See Lutz, 899 F.2d 255, 268 (3d Cir. 1990) (“The right or tradition we consider may be described as the right to travel locally through public spaces and roadways.”) While the terms are often used interchangeably, we do not use the right to travel locally through public spaces and roadways synonymously with a right to freedom of movement. To be sure, a right to freedom of movement could encompass a right to localized travel, but it could also include interstate and international travel components. While we draw from historical sources discussing a freedom of movement, and find their authority instructive, our holding is limited to the right to travel locally through public spaces and roadways. Moreover, while we can conceive of different articulations of a right to intrastate travel, the right we address - the right to travel locally through public spaces and roadways - is fundamentally one of access. C. “The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.” United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); see also Saenz, 526 U.S. at 498 (describing the constitutional right to travel as “firmly embedded” in the Supreme Court’s jurisprudence). It is “assertable against private interference as well as government action . . . . a virtually unconditional personal right, guaranteed by the Constitution to us all.” Shapiro, 394 U.S. at 643 (Stewart, J., concurring). The right to interstate travel embraces three different components: (1) “the right of a citizen of one State to enter and to leave another state”; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State”; and (3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Saenz, 526 U.S. at 500. The Supreme Court has not yet identified the source of the first travel right, but the latter two components are expressly protected by the Privileges and Immunities Clause. Id. at 501-03. The Supreme Court has not yet addressed whether the Constitution also protects a right to intrastate travel. Mem’l Hosp., 415 U.S. at 255-56. Both the district court in this case, 119 F. Supp. 2d. at 745-46, and the Ohio Supreme Court in Burnett, 755 N.E.2d at 865-66, recognized a limited

296

Case No. 00-4477 (Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. Case No. 98-00441--Susan J. Dlott, District Judge.) September 26, 2002; Before: MARTIN, Chief Circuit Judge; GILMAN, Circuit Judge; EDMUNDS, District Judge. 70

constitutional right to intrastate travel and concluded that the Ordinance impermissibly infringed on this right. See also Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir. 1990) (recognizing that the Constitution “protects the right to travel freely within a single state”); Lutz, 899 F.2d at 268 (holding that “the right to move freely about one’s own neighborhood or town” is a fundamental liberty interest protected by the Due Process Clause); Hutchins v. District of Columbia, 188 F.3d 531, 561-62 (D.C. Cir. 1999) (Rogers, J., dissenting in part, concurring in part, joined by Tatel and Wald, JJ.) (“[P]recedents recognize a fundamental right to walk through public streets without thereby subjecting oneself to police custody.”); see also id. at 538 (plurality) (Silberman, J.) (accepting that a “draconian curfew” might implicate substantive due process); Pottinger v. City of Miami, 810 F. Supp. 1551, 1578-81 (S.D. Fla. 1992);297 City of Seattle v. McConahy, 937 P.2d 1133, 1141 (Wash. App. 1997).298 Although the Supreme Court has not expressly recognized a fundamental right to intrastate travel, as early as the Articles of Confederation, state citizens “possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.” United States v. Wheeler, 254 U.S. 281, 293, 41 S.Ct. 133, 65 L.E. 270 (1920). As Chief Justice Taney observed: For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States. Smith v. Turner, 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702, 790 (1849) (Taney, C.J., dissenting) (emphasis added); see also Civil Rights Cases, 109 U.S. 3, 39, 3 S.Ct. 18, 27 L.E.2d 835 (1883) (Harlan, J., dissenting) (noting that “personal liberty consists, says Blackstone, in the power of locomotion, of changing situation, or removing one’s person to whatever place one’s own inclination may direct, without restraint, unless by due course of law”) (internal quotations omitted). Or as the Supreme Court noted at the turn of the twentieth century: “[T]he right to remove from one place to another according to inclination, is an attribute of . . . liberty . . . secured by the Fourteenth Amendment and by other provisions of the Constitution.” Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128 (1900). More recently, Justice Stevens, joined by Justice Souter and Justice Ginsburg, observed:

297

But see Wright v. City of Jackson, 506 F.2d 900, 902-03 (5th Cir. 1975).

298

A number of state courts have also ruled that their respective state constitutions protect a right to intrastate travel. See Watt v. Watt, 971 P.2d 608, 615 (Wyo. 1999) (“The right to travel freely throughout the state is a necessary and fundamental aspect of our emancipated society, and it is retained by the citizens.”); Brandmiller v. Arreola, 544 N.W.2d 894, 899 (Wisc. 1996) (“[W]e recognize that the right to travel intrastate is fundamental among the liberties preserved by the Wisconsin Constitution. This right to travel includes the right to move freely about one’s neighborhood, even in an automobile.”); State v. Shigematsu, 483 P.2d 997, 1001 (Haw. 1971) (recognizing right to freedom of movement, which “include[s] the right of men to move from place to place, to walk in the fields in the country or on the streets of a city, [and] to stand under open sky.”); State v. Cuypers, 559 N.W.2d 435, 437 (Minn. App. 1997) (“Minnesota also recognizes the right to intrastate travel.”); City of New York v. Andrews, 719 N.Y.S.2d 442, 452 (N.Y. Sup. Ct. 2000) (“There can be no doubt that our State Constitution, no less than the Federal Constitution, supports the right to travel freely within the State.”); see also City of Bismark v. Stuart, 546 N.W.2d 366, 367 (N.D. 1996) (implying existence of right). 71

[I]t is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage” Kent v. Dulles, 337 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), or the right to move “to whatsoever place one’s own inclination may direct” identified in Blackstone’s Commentaries. 1 W. Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 130 (1765). City of Chicago v. Morales, 527 U.S. 41, 54, 119 S.Ct. 1849, 144 L.E.2d 67 (1999); see also Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (noting that anti-loitering statute, which required individuals to provide “credible and reliable” identification, “implicated consideration of the constitutional right to freedom of movement”); Papachristou v. City of Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (describing walking, loitering, and wandering as “historically part of the amenities of life as we have known them.”); Guest, 383 U.S. at 759 (“[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”); Nunez v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997) (“Citizens have a fundamental right of free movement, ‘historically part of the amenities of life as we have known them.’”) (citation omitted); Burnett, 755 N.E.2d at 865 (“This freedom of mobility is a tradition extending back to when the first settler crossed into what would eventually become this great state, and it is a tradition no Ohioan would freely relinquish.”); Gomez v. Turner, 672 F.2d 134, 143-44 n. 18 (D.C. Cir. 1982) (noting that the ability to “walk the streets, without explanation or formal papers is surely among the cherished liberties that distinguish this nation from so many others.”).299 In light of these cases, we find that the right to travel locally through public spaces and roadways enjoys a unique and protected place in our national heritage. In addition to its solid historical foundation, the tremendous practical significance of a right to localized travel also strongly suggests that such a right is secured by substantive due process. The right to travel locally through public spaces and roadways - perhaps more than any other right secured by substantive due process - is an everyday right, a right we depend on to carry out our daily life activities. It is, at its core, a right of function. In the words of Justice Douglas: Freedom of movement, at home and abroad, is important for job and business opportunities - for cultural, political, and social activities - for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we enjoy. We nevertheless place our faith in them, and against restraint, knowing that the risk of abusing liberty so as to give rise to punishable conduct is part of the price we pay for this free society.

299

Writing in 1971, the Second Circuit keenly observed that “[i]t would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.” King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971); see also Burnett, 755 N.E.2d at 865(“Without the one, there would never be the other.”). While we credit this observation, we cannot rely on this proposition because recent Supreme Court cases demonstrate that the Court has not yet definitely located the textual source of the right to interstate travel. Lutz, 899 F.2d at 261. As the Third Circuit noted: “One consequence of the Court’s refusal in Shapiro and its progeny to ground the right to travel in particular constitutional text is that there exists some uncertainty as to whether it is, in fact, ‘a fundamental precept of personal liberty.’” Id. Of course, if the right to interstate travel is, in fact, grounded in substantive due process, the Second Circuit’s point is “unimpeachable.” Id. 72

Aptheker v. Secretary of State, 378 U.S. 500, 519-20, 184 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (Douglas, J., concurring); see also Hutchins, 188 F.3d at 561 (Rogers, J.)(dissenting in part, concurring in part). The Ordinance itself references an individual’s “significant private interest in being able to travel and associate freely in all areas of the City.” In view of the historical endorsement of a right to intrastate travel and the practical necessity of such a right, we hold that the Constitution protects a right to travel locally through public spaces and roadways. 2. State v. Burnett (2001), 93 Ohio St.3d 419.] Constitutional law — Municipal corporations — Cincinnati ordinance establishes drug-exclusion zones within city — Chapter 755 of the Cincinnati Municipal Code is an unconstitutional violation of the right to travel as guaranteed by the Fourteenth Amendment to the United States Constitution and a violation of Section 3, Article XVIII of the Ohio Constitution — Supreme Court of Ohio not bound by rulings on federal statutory or constitutional law made by a federal court other than the United States Supreme Court. (No. 00-266 — Submitted March 13, 2001 — ecided October 17, 2001.) Appeal from the Court of Appeals for Hamilton County, No. C-981003. II. The Right to Travel. Burnett also argues that Chapter 755 of the Municipal Code is unconstitutional because it impermissibly burdens the right to travel. Burnett alleges that the right to travel is a personal liberty protected by the Fourteenth Amendment to the United States Constitution and that Chapter 755 infringes upon this personal liberty by punishing wholly innocent or constitutionally protected conduct. We agree that Chapter 755 of the Cincinnati Municipal Code has impermissibly burdened a fundamental, guaranteed personal liberty by extending its reach further than necessary to advance the public interests it declares. In all the cases addressing the right to travel, the United States Supreme Court has examined only the right to travel from one state to another.[6] To date, the court has not expressly recognized a constitutional right of travel within a state. Burnett argues, however, that a right of intrastate travel exists and that the Cincinnati ordinance has impermissibly burdened this right. Precedent of the United States Supreme Court and federal courts of appeals, and our own precedent cause us to conclude that such a constitutional right of travel within a state exists and that the Cincinnati ordinance has unconstitutionally burdened that right. As suggested by the United States Supreme Court, the right of travel is most likely protected from state interference by the Due Process Clause of the Fourteenth Amendment. See, e.g., Kent v. Dulles (1958), 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204, 1210 (“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment”); Williams v. Fears (1900), 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186, 188 (“the right to remove from one place to another according to inclination, is an attribute of * * * liberty * * * secured by the Fourteenth Amendment”). When evaluating whether substantive due process protects unenumerated rights, the question, as articulated by Justice Scalia, is whether the asserted right is “ ‘so rooted in the traditions and conscience of our people as to be ranked fundamental.’ ” Michael H. v. Gerald D. (1989), 491 U.S. 110, 122, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91, 105, quoting Snyder v. Massachusetts (1934), 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677 (Cardozo, J.). We therefore look to those rights that are so deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty that neither liberty nor justice would exist if they were surrendered. Moore v. E. Cleveland (1977), 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531, 73

540. In affording protection to unenumerated rights, however, we must be mindful that a “ ‘careful description’ of the asserted fundamental liberty interest” is required. Washington v. Glucksberg (1997), 521 U.S. 702, 721, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772, 788, quoting Reno v. Flores (1993), 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16; see, also, Michael H., 491 U.S. at 127, 109 S.Ct. at 2344, 105 L.Ed.2d at 108, fn. 6. (the relevant traditions must be identified and evaluated at the most specific level of generality possible.) The sole purpose of this limiting function is to provide fundamental protection only to those traditions deeply woven into this Nation’s historical fabric without overextending the Due Process Clause. The right to travel is a liberty interest long enjoyed by every citizen residing within this Nation. As stated by Chief Justice Taney, “For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.” (Emphasis added.) Smith v. Turner (1849), 48 U.S. (7 How.) 283, 492, 12 L.Ed. 702, 790 (Taney, C.J., dissenting). The freedom to travel between states and throughout the Nation is one long enjoyed and wholeheartedly cherished. United States v. Guest (1966), 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239, 249; Williams v. Fears (1900), 179 U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186, 188. The word “travel” is not mentioned within the text of the Constitution. “Yet the ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Roe (1999), 526 U.S. 489, 498, 119 S.Ct. 1518, 1524, 143 L.Ed.2d 689, 701, quoting Guest, 383 U.S. at 757, 86 S.Ct. at 1178, 16 L.Ed.2d at 249. Indeed, “the right is so important that it is ‘assertable against private interference as well as governmental action * * * a virtually unconditional personal right, guaranteed by the Constitution to us all.’ ” Id., quoting Shapiro v. Thompson (1969), 394 U.S. 618, 643, 89 S.Ct. 1322, 1336, 22 L.Ed.2d 600, 620 (Stewart, J., concurring). Stated succinctly, “[t]he constitutional right to travel from one State to another * * * occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.” (Emphasis added.) Guest, 383 U.S. at 757, 86 S.Ct. at 1178, 16 L.Ed.2d at 249. In its most specific, careful description, the right of intrastate travel we contemplate is the right to travel locally through public spaces and roadways of this state. Historically, it is beyond contention that being able to travel innocently throughout the country has been an aspect of our national freedom. Likewise, the right to travel within a state is no less fundamental than the right to travel between the states. Every citizen of this state, much like the citizens of this Nation, enjoys the freedom of mobility not only to cross our borders into our sister states, but also to roam about innocently in the wide-open spaces of our state parks or through the streets and sidewalks of our most populous cities. This freedom of mobility is a tradition extending back to when the first settler crossed into what would eventually become this great state, and it is a tradition no Ohioan would freely relinquish. The United States Supreme Court has stated that in addressing matters of substantive due process, the utmost care must be taken when being asked to break new ground in Fourteenth Amendment jurisprudence. Collins v. Harker Hts. (1992), 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, 273. Unlike the asserted right evaluated in Glucksberg (assisted suicide), for example, recognizing a right of intrastate travel is hardly groundbreaking. Much like the right to interstate travel, the right to intrastate travel has a long, historical recognition in the conscience and traditions of our people. As further observed by the Second Circuit, “[i]t would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative

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constitutional right to travel within a state.” King v. New Rochelle Mun. Hous. Auth. (C.A.2, 1971), 442 F.2d 646, 648. Without the one, there would never be the other. As a fundamental right, the right to intrastate travel “is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law.” Kent v. Dulles (1958), 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204, 1210. Any deprivation of the right to travel, therefore, must be evaluated under a compelling-interest test. See Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, overruled in part on other grounds by Edelman v. Jordan (1974), 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. Accordingly, the legislation must be narrowly tailored to serve a compelling governmental interest. Reno v. Flores (1993), 507 U.S. 292, 301-302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16. Cincinnati asserts that the purposes of Chapter 755 are “restoring the quality of life and protecting the health, safety, and welfare of citizens using the public ways” in drug-exclusion zones and “allowing the public to use and enjoy the facilities in such areas without interference arising from illegal drug abuse and/or illegal drug abuse related crimes.” Ordinance No. 229-1996, Section 1(D). We agree with the city that these asserted interests are compelling. The destruction of some neighborhoods by illegal drug activity has created a crisis of national magnitude, and governments are justified in attacking the problem aggressively. When legislation addressing the drug problem infringes certain fundamental rights, however, more than a compelling interest is needed to survive constitutional scrutiny. The statute must also be narrowly tailored to meet the compelling interest. Reno, 507 U.S. at 301-302, 113 S.Ct. at 1447, 123 L.Ed.2d at 16. It is our opinion that while Chapter 755 is justified by a compelling interest, it fails constitutional analysis because the ordinance is not narrowly tailored to restrict only those interests associated with illegal drug activity, but also restricts a substantial amount of innocent conduct. A person convicted of one of the crimes enumerated in section 755-5 of the Cincinnati Municipal Code is immediately prohibited for one year from being on “public streets, sidewalk[s], and other public ways in all drug-exclusion zones designated in Chapter 755.” Cincinnati Municipal Code 755-5. The exclusion is in addition to any criminal penalty for violating the provisions of the Ohio Revised Code. Only if the person is a bona fide resident of the drug-exclusion zone or is legally employed within the drug-exclusion zone does the restriction on travel not apply. Cincinnati Municipal Code 755-11(b)(i) and (ii). The chief of police and social services agencies also have discretion to grant a variance only for health reasons or for drug-abuse-related counseling services. Cincinnati Municipal Code 755-11(2)(b). The ordinance permits no other exceptions. “A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz (1988), 487 U.S. 474, 485, 108 S.Ct. 2495, 2503, 101 L.Ed.2d 420, 432; City Council of Los Angeles v. Taxpayers for Vincent (1984), 466 U.S. 789, 808-810, 104 S.Ct. 2118, 2130-2132, 80 L.Ed.2d 772, 789-780. The Cincinnati ordinance extends beyond the problems associated with illegal drug activity and attacks any number of potential activities done with an innocent purpose. In this respect, the Cincinnati Ordinance is similar to an ordinance we declared unconstitutional in Akron v. Rowland (1993), 67 Ohio St.3d 374, 618 N.E.2d 138. In Rowland, the ordinance prohibited loitering for the purpose of engaging in drug-related activity. In declaring the ordinance unconstitutional, we found significant the fact that “a person does not have to commit a drug-related offense to violate the ordinance. The ordinance is prophylactic: it permits police to make an arrest before any crime has occurred. The police do not need to have any evidence that a crime has occurred or is about to occur—they can make an arrest based on subjective suspicion alone.” (Emphasis sic.) Id. at 386, 618 N.E.2d at 148. The ordinance, we stated, “can easily 75

implicate a person’s status, associates, mere presence, or otherwise innocent behavior * * * [and therefore] encroach on a ‘substantial amount of constitutionally protected conduct.’ ” Id. at 387, 618 N.E.2d at 149, quoting Houston v. Hill (1987), 482 U.S. 451, 459, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398, 410. Without a limit on the intrusions into innocent conduct the ordinance ran afoul of the Due Process Clause. Id. at 388, 618 N.E.2d at 149-150; Columbus v. Thompson (1971), 25 Ohio St.2d 26, 31-32, 54 O.O.2d 162, 165, 266 N.E.2d 571, 574; Columbus v. DeLong (1962), 173 Ohio St. 81, 83, 18 O.O.2d 294, 295, 180 N.E.2d 158, 160. As the Akron ordinance in Rowland did, the Cincinnati ordinance encroaches upon a substantial amount of innocent conduct and is not, therefore, narrowly tailored. A person subject to exclusion is exposed to a criminal penalty by simply being in Over the Rhine. Cincinnati Municipal Code 755-5. The prohibited conduct is not limited to entering a drug-exclusion zone to engage in some type of illegal activity, such as the purchase or sale of drugs or corrupting another with drugs. Instead, the ordinance also attacks conduct that is completely innocent. A person subject to the exclusion ordinance may not enter a drug-exclusion zone to speak with counsel, to visit family, to attend church, to receive emergency medical care, to go to a grocery store, or just to stand on a street corner and look at a blue sky. None of these activities are performed with illegal intention, yet a criminal penalty attaches to them without any evidence of illegality, or improper purpose, or a finding that the person is likely to commit future drug offenses. “A narrowly tailored ordinance would not authorize the arrest of a grandmother who entered Over the Rhine for the purpose of seeing her grandchildren. A narrowly tailored ordinance would not authorize the arrest of a homeless person who entered Over the Rhine to obtain food, shelter, and clothing from relief agencies. Nor would it prevent any person from meeting with his or her attorney at the attorney’s place of business. A narrowly tailored ordinance would not authorize exclusion without, at a minimum, a finding that the particular person to be excluded was likely to repeat his crime in Over the Rhine.” Johnson v. Cincinnati, 119 F.Supp.2d at 743-744; cf. R.C. 2950.01(E) and 2950.09(B)(1) through (3) (a finding by clear and convincing evidence that a sexual offender is likely to commit future sexual offenses is required before the offender can be classified as a sexual predator). A narrowly tailored ordinance would not strike at an evil with such force that constitutionally protected conduct is harmed along with unprotected conduct. “The Constitution does not permit a legislature to ‘set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.’ ” Chicago v. Morales (1999), 527 U.S. 41, 60, 119 S.Ct. 1849, 1861, 144 L.Ed.2d 67, 82, quoting United States v. Reese (1875), 92 U.S. 214, 221, 23 L.Ed. 563, 566. We hold that Chapter 755 of the Cincinnati Municipal Code violates the constitutional guarantee of the right of travel which is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Although the Cincinnati ordinance is supported by compelling interests, it is not narrowly tailored to address those interests.

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Considering my contention that travel upon the streets or highways of any city or town of any of the 50 States is a “Right” various courts have ruled on this issue. I have emphasized the word “Right” in this section because it is a common point among the authorities listed.

3. D EFINING R IGHTS (i). Right as defined by Webster Unabridged Dictionary:

! In law, (a) an enforceable claim or title to any subject matter whatever; (b) one’s claim to something out of possession; a power, prerogative, or privilege, as when the word is applied to a corporation. (ii). Right as relates to the person:

! “Rights” are absolute or relative; absolute “Rights,” such as every individual born or living in this country (and not an alien enemy) is constantly clothed with, and relate to his own personal security of life, limbs, body, health, and reputation; or to his or her personal liberty; “Rights” which attach upon every person immediately upon his birth, and even upon a slave the instant he lands within the same. (Emphasis added). See: 1 Chitty Pr. 32. (iii). Right – A legal Right:

! A constitutional “Right” means a “Right” protected by the law, by the Constitution, but government cannot “create” the idea of a “Right” or original “Rights”; it must “acknowledge” them .... (Emphasis added), Bouvier s Law Dictionary, 1914, p. 2916 (iv). Absolute Right as defined by Bouvier’s Law Dictionary:

! “Without any condition or encumbrance as an absolute bond, simplex obligation, in distinction from a conditional bond; an absolute estate, one that is free from all manner of conditions or encumbrance. A rule is said to be absolute when, on the hearing, it is confirmed.” (v). Inalienable as defined by Bouvier’s Law Dictionary:

! A word denoting the condition of those things, the property in which cannot be lawfully transferred from one person to another. It shows from these definitions that the State has an obligation to acknowledge the “Rights” of this Citizen to travel on the streets or highways. Furthermore, the States and the Federal Government have the “duty” to refrain from interfering with State and Non-State citizens’ Right to travel, to protect that“Right,” and to enforce my claim to it. Now, if I have the absolute “Right” to move about on the streets or highways of any city or town or upon the interstate between states, does that “Right” include the “Right” to travel in a vehicle upon the streets or highways? (vi). The U.S. Supreme Court:

! The “Right” to travel is a part of the liberty of which the Citizen “cannot be deprived” without due process of the law under the 5th Amendment. See: Kent v. Dulles, 357 U.S. 116, 125 77

(vii). Wisconsin Supreme Court (1909):

! The term “Public Highway,” in its broad popular sense, includes toll roads, streets, highways and roadways which the public has a “Right” to use, even conditionally, though in a strict legal sense it is restricted to roads which are wholly public. See: Weirich v. State, 140 Wis. 98. (viii). Illinois Supreme Court:

! Even the legislature has no power to deny to a Citizen the “Right” to travel upon the roadways and transport his property in the ordinary course of his business or pleasure, through this “Right” might be regulated in accordance with the public interest and convenience. See: Chicago Motor Coach v. Chicago, 169 N.E. 22. “Regulated” here means traffic safety enforcement, stop lights, sign, etc., NOT a privilege that requires permission, i.e.; licensing, mandatory insurance, vehicle registration, etc.. 4. PRIVILEGE OR RIGHT?

! The use of the roadways for the purpose of travel and transportation is NOT a mere Privilege, but a “common and fundamental right” of which the public and individuals cannot rightfully be deprived. (Emphasis added) See: Chicago Motor Coach v. Chicago, 169 N.E. 22; See: Ligare v. Chicago, 28 N.E. 934; See: Boone v. Clark, 214 S. W. 607; See AMERICAN JURISPRUDENCE 1ST ED ., HIGHW AYS 163

! A Citizen’s “Right” to travel upon public highways includes the right to use usual conveyances of time, including horse-drawn carriage, or automobile, for ordinary purposes of life and business. See: Thompson v. Smith (Chief of Police), 154 S. E. 579, 580

! The “Right” of the Citizen to travel upon the public roadways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a “Common Right” which he has under the “Right” to life, liberty, and the pursuit of happiness. See: Thompson v. Smith, (Chief of Police), 154 S. E. 579, 580. It could not be stated more conclusively that Citizens of the States have a “Right” to travel, without approval or restriction, (license), and that this “Right” is protected under the U.S. Constitution. After all, who do the roadways belong to anyway? The People-At-Large. The following are additional court decisions that expound the same facts: (i). United States Constitution, Amendment 9:

! “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” (ii). American Jurisprudence 1st:

! The “Right” of the Citizen to travel upon the public roadways and to transport his property thereon, by horse-drawn carriage, wagon, or automobile, is NOT a mere privilege which may be permitted or prohibited at will, but a “common right” which he has under his right to life, liberty, and the pursuit of happiness. Under the Constitutional guarantee one may, therefore, under normal conditions, travel at his 78

inclination along the public roadways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with, not disturbing another’s “Rights,” he will be protected, not only in his person, but in his safe conduct. (Emphasis added) See: 11 AMERICAN JURISPRUDENCE 1ST ., CONSTITUTIONAL LAW , 329, page 1123 (iii). Washington:

! “The streets and roadways belong to the public, for the use of the public in the ordinary and customary manner.” Hadfield v. Lundin, 98 Wn. 657; 168 P. 516.

! “All those who travel upon, and transport their property upon, the public highways, using the ordinary conveyance of today, and doing so in the usual and ordinary course of life and business.” Hadfield v. Lundin, 98 Wn. 657; 168 P. 516.; State v. City of Spokane, 109 Wn. 360; 186 P. 864.

! “The Right of the Citizen to travel upon the highways and to transport his property thereon, in the ordinary course of life and business, obviously differs radically from that of one who makes the highways his principal place of business and uses it for private gain.” State v. City of Spokane, 109 Wn. 360; 186 P. 864.

! “While a Citizen has the Right to travel upon the public highways and to transport his property thereon, that “Right” does not extend to the use of the highways, either in whole or in part, as a place of business for private gain. For the latter purposes no person has a vested right to use the highways of the state, but is a mere privilege or license which the legislature may grant or withhold at its discretion.” Hadfield v. Lundin, 98 Wn. 657; 168 P. 516; State v. Johnson, 243 P. 1073; See: Cummins v. Jones, 155 P. 171; See: Packard v. Banton, 44 S.Ct. 257, 264 U.S. 140 and other cases too numerous to mention. (iv). Washington State Supreme Court:

! I am not particularly interested about the rights of haulers by contract, or otherwise, but I am deeply interested in the “Rights” of the public to use the public highways freely for all lawful purposes. See: Robertson v. Department of Public Works, 180 Wash. 133 at 139 (v). Indiana Supreme Court (1873):

! It is not the amount of travel, the extent of the use of a highway by the public that distinguishes it from a private way or road. It is the “Right” to so use or travel upon it, not its exercise. See: [?] Ind 455, 461 (vi). Georgia Supreme Court:

! In this connection, it is well to keep in mind that, while the public has an absolute “Right” to the use of the streets for their primary purpose, which is for travel, the use of the streets from the purpose of parking automobiles is a privilege, and not a “Right”; and the privilege must be accepted with such reasonable burdens as the city may place as conditions to the exercise of that privilege. See: Gardner v. City of Brunswick, 28 S.E.2d 135 (vii). Colorado Supreme Court: 79

! The Constitution of the State of Colorado, Article II, & sect. 3 provides that: All persons have certain natural, essential and inalienable “rights,” among which may be reckoned the “Right” .... of acquiring, possessing and protecting property; .... A motor vehicle is “property” and a person “cannot be deprived” of property without due process of law. The term: “Property,” within the meaning of the due process clause, includes the “Right” to make full use of the property which one has the inalienable “Right” to acquire. Every Citizen has an inalienable “Right” to make use of the public highways of the state; every Citizen has full freedom to travel from place to place in the enjoyment of life and liberty. See: People v. Nothaus, 147 Colo. 210 (viii). Idaho Constitution:

! “All men are by nature free and equal, and have certain inalienable “rights,” among which are ....; acquiring, possessing, and protecting property .... (Emphasis added). The words of the Idaho Constitution are to all intents and purposes identical with those of the North Carolina Constitution. (ix). North Carolina Constitution, Article I, § 1:

! “The equality and rights of persons. We hold it to be self-evident that all persons are created equal; that they are endowed by the Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”

! “To be that statutes which would deprive a Citizen of the rights of person or property without a regular trial, according to the course and usage of common law, would not be the law of the land.” See: Hoke v. Henderson, 15 N.C. 15, 25 AM. Dec. 677 Since courts tend to be consistent in their rulings, it would be expected the Idaho Supreme Court would rule in the same manner as the North Carolina Supreme Court. (x). North Carolina Constitution, Article I, & sect. 36:

! “Other rights of the people. The enumeration of rights in this Article shall not be construed to impair or deny others retained by the people.” (xi). North Carolina Constitution, Article I, & sect;2:

! “Sovereignty of the people. All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” (x). United States Supreme Court:

! “Undoubtedly the Right of locomotion, the Right to remove from one place to another according to inclination, is an attribute of personal liberty, and the Right, ordinarily, of free transit from or through the territory of any State is a Right secured by 80

the Fourteenth Amendment and by other provisions of the Constitution.” Williams v. Fears, 343 U.S. 270, 274 (xi). Highways:

! “Highways are public roads which every Citizen has a Right to use.” See, 3 Angel Highways 3. (xii) Highway is defined by Bouvier’s Law Dictionary:

! A highway is a passage, road, or street, which every Citizen has a Right to use. (xiii). The Idaho Code:

! 21.1 49-301 (13) Street or highway. The entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of “Right,” for purposes of vehicular traffic. See: Idaho Code.

(5). Privately Owned Vehicles and Firearms as Property Property as defined by Bouvier’s Law Dictionary:

! The ownership of property implies its use in the prosecution of any legitimate business which is not a nuisance in itself. In re Hong Wah, 82 Fed. 623 United States Supreme Court:

! The Federal Constitution and laws passed within its authority are by the express terms of that instrument made the supreme law of the land. The Fourteenth Amendment protects life, liberty, and property from invasion by the States without due process of law. Property is more than the mere thing which a person owns. It is elementary that it includes the “Right” to acquire, use and dispose of it. Buchanan v. Warley, 245 U.S. 60, 74. Texas Supreme Court:

! Property in a thing consists not merely in its ownership and possession, but in the unrestricted “Right” of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the Right of use be denied, the value of the property is annihilated and ownership is rendered a barren Right. Therefore, a law which forbids the use of a certain kind of property, strips it of an essential attribute and in actual result proscribes its ownership. Spann v. City of Dallas, 235 S. W. 513

! These words of the Supreme Court of Texas are of particular importance in Idaho because the Idaho Supreme Court quoted the Supreme Court of Texas and used these exact words in rendering its decision in the case of O’ Conner v. City of Moscow, 69 Idaho 37. The Supreme Court of Texas went on to say further:

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! To secure their property was one of the great ends for which men entered into society. The “Right” to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural “Right.” It does not owe its origin to constitutions. It existed before them. It is a part of the Citizen ‘s natural liberty -- an expression of his freedom, guaranteed as inviolate by every American Bill of “RIGHTS.” Spann v. City of Dallas, 235 S. W. 513. These authorities point out that the “Right” to own property includes the “Right” to use it. The reasonable use of an automobile is to travel upon the streets or highways on which I have an absolute “Right” to use for the purposes of travel.

(5). M OTOR V EHICLE OR V EHICLE? (i). Title 49 Transportation, U.S.C.A. §10102 (17):

! “Motor vehicle” means a vehicle, machine, tractor, trailer, or semi-trailer propelled or drawn by mechanical power and used on a highway in “commercial transportation,” or a combination determined by the Commission, but does not include a vehicle, locomotive, or car operated only on a rail, or a trolley bus operated by electric power from a fixed overhead wire, and providing local passenger “transportation” similar to street-railway service. (ii). New Jersey:

! The term “Motor Vehicle” may be so used as to include only those self-propelled vehicles which are used on highways primarily for purposes of “transporting” persons and property from place to place. See: 60 Corpus Juris Secundum & sect; 1, Page 148; See: Ferrante Equipment Co. v. Foley Machine Co., N.J., 231 A.2d 208, 211, 49 N.J. 432 (iii). Oregon:

! It seems obvious that the entire Motor Transportation Code and the definition of motor vehicle “are not intended” to be applicable to all motor vehicles, but applicable only to those having a connection with the “commercial transportation” of persons or property for fee. Rogers Construction Co. v. Hill, Or., 384 P.2d 219, 222, 235 Or. 352 The Constitutions of the United States and of the various States guarantee my “Right” to own property. The Supreme Courts of North Carolina and Texas have affirmed that the “Right” to own property includes the “Right” to use it while its use harms no another person. DIMINISHED RIGHTS ? Now, if I have the “Right” to use a vehicle on the streets or highways of any city or town of any State or of between cities or town or towns between States, or upon the Interstate between States to what extent can the State or the Federal Government regulate or diminish that my “Right” to own property (privately owned vehicle and firearms)? There are some who would maintain that “specific performance” is required of every Citizen who uses a vehicle upon the streets or highways. Therefor, Let us examine this contention in detail. Diminished Rights by Contract?

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Specific performance is a term used to designate an action in equity in which a party to a contract asks the court to order the other party to carry out the contract which he has failed or refused to perform. Thus, if specific performance is expected, a contract must exist. The question then becomes: What are the “terms of the contract” and “when was it executed” and by “whom”? Since specific performance appears to be expected of every user of a vehicle on the streets or highways, the user of a vehicle seems to be one of the parties to the supposed contract. And since the State appears to be the party demanding specific performance, the State is the other party to the contract. So the supposed contract exists between the user of a vehicle and the State. When was this contract executed and what are its’ terms? Some contend that when a user of a vehicle avails himself of the “privilege” of driving on public thoroughfares that he enters a contract with the State that requires him to abide with all the laws in the General Statutes or Code of the State. Others contend that the contract is executed when a driver’s license is obtained. We now need to figure out what is a contract. A contract may be defined as an agreement enforceable in court between two or more parties, for a sufficient consideration to do or not to do some specified thing or things. Thus, a contract has four essential features:

! It “must” be an agreement. ! There “must” be at least two parties to the contract. ! There “must” be a consideration. ! There “must” be an obligation or thing to be done. Several types of contracts exist, but all must contain the essential features listed above. Contracts can be classified under three (3) principal categories:

! Express ! Implied ! Quasi Quasi contracts, while being called contracts, are not-really contracts, and will not be considered in this particular discussion concerning contracts, but we will consider and address that issue in a separation section later. Unilateral & Bilateral Contracts There can also be unilateral and bilateral contracts that is “presumed to exist” under some or all the above headings. Let us examine each above types of contracts to see if the license I obtained falls under any of the categories of contract.

! An express contract is one in which the agreement of the parties is fully stated in words, and it may be either written or oral, or partly written and partly oral. BERGH BUSINESS LAW 30.

! A true “implied contract” is an agreement of the parties, arrived at from their acts and conduct, viewed in the light of surrounding circumstances, and not from their words either spoken or written. Like an express contract, it grows out of the intention of the parties to the transaction, and there must be a meeting of the minds. McKevitt et al v. Golden Age Breweries, Inc., 126 P.2d 1077 (1942) 83

! License is defined as the “Authority” to do some act or carry on some trade or business, in its nature lawful but prohibited statute, except with the permission of the civil authority or which would otherwise be unlawful. BOUVIER ’S LAW DICTIONARY 37. Is a driver’s license a contract by these definitions? The driver’s license itself is a small plastic card approximately 55 millimeters by 86 millimeters in size. It contains the words “Driver’s license or Motor Vehicle Driver’s license”; the name, address, signature, and physical description of the user; a pair or set of identifying numbers; a photograph; and the signature or stamp of the Director of the Department of Law Enforcement or the Secretary of State. Obviously, this cannot be an express agreement because there are no statements to constitute an agreement. Are there two parties to the “contract?” There is only one signature, thus there are no “parties to the contract,” therefore, “a contract in invalid.” Is there a consideration? What has the State given this Citizen in return for this Citizens obligation? Some may suggest that the State has given this Citizen the privilege of driving on the streets or highways. But this Citizen already has that “Right” to drive on the streets or highways, and the State cannot require this Citizen to give up a “Right” to obtain a “privilege.” Hence the Doctrine of Unconstitutional Conditions.

! An Iowa Statute that requires that every foreign corporation named in it shall, as a condition for obtaining a permit to transact business in Iowa, stipulate that it will not remove into the federal court certain suits that it would by the laws of the United States have a “Right” to a permit dependant upon the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States. BOUVIER ’S LAW DICTIONARY quoting Barron v. Burnside, 121 U.S. 186.

! The full significance of the clause law of the land is said by Ruffin, C.J. to be that statutes that would deprive a Citizen of the “Rights” of person or property without a regular trial according to the course and usage of the common law would not be the law of the land. BOUVIER ’S LAW DICTIONARY quoting Hoke v. Henderson, 15 N.C. 15, 25 AM Dec 677. It would be foolish for me to exchange a “Right” for a privilege since it would mean giving up valuable property in exchange for something having less value.

! No act shall be deemed a crime if done with the consent of the party injured, unless it be committed in public, and is likely to provoke a breach of the peace, or tends to the injury of a third party; provided no consent can be given which will deprive the consentor of any inalienable “Right.” BOUVIER ’S LAW DICTIONARY . Thus, even if I wanted to do so, I could not give up my “Right” to travel on the streets or highways of any city or town of any State or between cities or towns between States or in interstate travel between States, or exchange it for the privilege granted by the State or the United States of having a driver’s license. Thus, in exchange for the supposed obligation of this Sovereign, a State has given nothing. Thus, there is no consideration.

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It may be contended that the seal on the driver’s license is sufficient consideration by the State. It is true that under the common law, the question of consideration could not be raised concerning a contract under seal. The seal provided conclusive presumption of a consideration. North Carolina for instance, has abolished by statute the common law “presumption of consideration” and this statute is binding upon all officers and employees of the State. Even though a seal may be present, it is “not evidence of consideration.” Of course, the document in question is a contrived and copied document and lacks validity in any case as a contract. As to an obligation, since the license contains no statement of agreement, and since there are no parties to any agreement, and since there is no consideration, there can be no obligation. The driver’s license thus, is “not a contract” since it fails to contain any of the “four essential and required features” that a contract must in fact contain. Can the driver’s license be an “implied contract”? The same elements must exist in an implied contract as exist in an express contract. The only difference is that an implied contract is not written or spoken and the elements of the contract are shown by the acts and conduct of the parties involved. With respect to this Sovereign, there was certainly no meeting of the minds else this brief would not result. It was never my intention to give up Constitutional “Rights” to accept a privilege from the State or the United States. Such an action would be ridiculous. This could only be done in a socialistic state. There can been no implied agreement in a free society. Is it possible, that there were two parties to the supposed contract, i.e., the State and I? There was no consideration in the implied contract for the same reasons that there was no consideration in the express contract. An obligation is the thing to be done. It may be to pay money, to do work, or to deliver goods; or it may be to refrain from doing something that the person contracting had a “Right” to do. Some may say that the State was obligated to allow me to drive on the streets or highways and that I was obligated to obey all the Statutes contained in the General Statutes or Code of any given State. It would be just as easy to say, that the State could not be obligated to allow me to travel on the streets or highways because they did not have the “Right” or the power to prevent him from doing so. If the State cannot prevent me from my travels on the streets or highways of any city or town in the State, then the State does not have any discretion in the matter and does not have the choice of whether to obligate themselves or not. Thus, the obligation of the State cannot be to grant me the privilege of travel on the streets or highways. The obligation of the State must be to refrain from prohibiting me from my travel on the streets or highways since the State does not have the “Right” to do so. It is my contention that the only obligation that I incur when using a vehicle upon the streets or highways is the Common Law obligation to refrain from any act that causes injury or death to another person, liberty, or damage or destruction of property. In complying with this obligation, I contend that I do comply with many Statutes of the General Statutes or Codes of the 50 States since they are, for the most part, only common sense rules by which I avoid doing injury damage to others.

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Still, some Statutes of the General Statutes or Codes of the 50 States should not be construed as evidence of a contractual obligation by me. Neither should it be construed to all the Statutes of the General Statutes or Codes of the 50 States or to any of them always. Instead, it is merely evidence of a want of me to travel safely and to do harm to no one. Thus, my actions do not supply unambiguous evidence of a contract with the State of Arkansas or of the 49 other States. Instead, the actions can, with equal weight, be said to be evidence of a material fact that I was complying with the common law requirement in that I — do harm to no one. The driver’s license is not an implied contract because there is no consideration. There may possibly be two parties, but there is certainly no consideration. Neither is there clear evidence of an obligation. Three of the four elements necessary for a contract of any kind whatsoever, are missing. The question now becomes, whether the driver’s license application is a contract. In completing the driver’s license application form, the applicant makes several statements and signs the paper upon which these statements are written under oath. The statements concern the identity, physical description, address, ability and experience in operating a vehicle, and one statement on the physical condition of the applicant. None of the statements are construed to be as an agreement. The application form contains the signature of the applicant and the signature of the person taking the oath of the applicant. The reverse side of the Application contains the results of a vision test and rudimentary physical examination with the results of a driving test. These results are signed by the examiner and not by the applicant. Thus the application takes the form of an Affidavit instead of a contract. Are the elements of a contract present in the application?

! There is no agreement. ! There are no two parties. ! There is no consideration. ! There is no obligation. Since none of the necessary elements of a contract are present, the driver’s license application does not constitute a contract. The only other document involved in obtaining a driver’s license is the driver’s license identification document itself, part of which has information copied from the applicaton to make the actual driver’s license. It contains, besides the information that is used in making the driver’s license, the results of a vision test conducted by the driver’s license examiner. The applicant places his signature upon this form, that is then copied by some photographic process. Other material is added including a photograph, signature of the Director of the Department of Law Enforcement or the Secretary of State and the driver’s license is made of this composite. Thus, the license itself cannot be a contract because it is a contrived document. The form from which the driver’s license is made cannot be a contract because, again, none of the elements of a contract are present. So if none of the documents executed by the driver when obtaining a license is a contract, then no contract can exist between the driver and the State as a result of obtaining a driver’s license. 86

But the idea that the driver’s license is a contract with the State is pervasive. It is a belief, that is strongly held even by people in high places of government. Therefore, let us examine the driver’s license as if it were a contract and see if it can withstand scrutiny. Not every offer made by one party and accepted by the other creates a valid contract. The outward form of a contract, either oral or written may exist, and yet the circumstances may be such that no contract in reality was ever created. Some circumstances that will cause an apparently valid contract to be, in fact, “void” are:

! Mistake either mutual or unilateral. ! Fraud. ! Duress. ! Alteration. I obtained an Arkansas driver’s license upon the representation by the State, that one’s travel upon the roadways of the United States of America was a privilege. I accepted this representation as to be true and because of that representation did obtain a driver’s license.

! It has been shown beyond a reasonable doubt, that an individual’s travel is a “Right” and not a privilege. Thus, a mutual mistake has been made, and the “contract” is void. Deibel v. Kreiss, 50 N.E.2d 1000 (1943). But the General Assembly of the State who passed the Statutes contained in the General Statutes or Code are knowledgeable persons, many of whom are lawyers, and they undoubtedly knew at the time that the law was passed, that an individual’s travel was, in fact and law, a “Right” and not a privilege. If this were the case, then the mistake would be unilateral. A unilateral mistake known to one party and not to the other party, is sufficient grounds to void a contract if one truly exists. Fraud Fraud may consist in conduct, and may exist where there are no positive representations. Silence, where honesty requires speech, may sometimes constitute fraud. The rule that a man may be silent and safe, is by no means a universal one. Where one contracting party knows that the other party is bargaining for one thing, he has no “Right” by silence to deceive the other and suffer him to take an altogether different thing, from that for which that silence has bargained. Parish v. Thurston, 87 Ind. 437 (1882). If the driver’s license is a contract, a case can be made for the contention that it was an agreement obtained by the State by fraud.

! Fraud is a generic term which embraces all the multifarious means which human ingenuity can devise, and are resorted by one individual to get any advantage over another. No definite and invariable rule can be laid down as a general proposition defining fraud, as it includes all, trickery, cunning, surprise, dissembling, and unfair ways by which another is deceived. Wells v. Zenz, 236 P. 485. With respect to contracts, the following statements can be made:

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However, in the field of contracts, there are certain standard tests for a claim of fraud which make it possible to define fraud, in connection with a contract as any trick or artifice whereby a person by means of a material misrepresentation, creates an erroneous impression of the subject matter of a proposed transaction, and thereby induces another person to suffer damage computable in money. The misrepresentation may result from a false statement, a concealment, or a nondisclosure. The elements of a contractual fraud are the following:

! A material misrepresentation created, by a statement, by a concealment, or by nondisclosure. ! An intention to defraud. ! Reliance on the representation by the defrauded party. ! Damage caused to the defrauded party as the result of his acting upon the representation. BERGH BUSINESS LAW p. 56. In view of the many decisions by high courts, including the Supreme Court of the United States, that one’s travel is a “Right” and not a privilege, would be hard to defend the proposition that the General Assembly of the State was unaware of these decisions, particularly since many legislators are and were lawyers knowledgeable in such matters. In fact, when one considers the definition of streets or highways in Sections of the General Statutes, the Evidence is conclusive that the legislature knew and knows that ones travels is in fact a “Right.” Therefore, the statements in the General Statutes that a travel is a privilege and that a driver’s license is necessary before one can travel constitutes a “material misrepresentation of fact” to this possessor of a driver’s license. And since the legislature is and was aware of the fact that an individual’s travels was not a privilege, but a “Right,” the statement that one’s travels is a privilege, when applied to me, constitutes a willful intention to deceive, and therefore, to defraud. I did rely upon the representations of the legislature, that an individual’s travels was a privilege when I obtained my driver’s license, otherwise I would not have obtained one. I did suffer damage as a result of my acting upon the representation of the legislature at least to the extent of the license fee. In as much as all the necessary elements of fraud are present, if the driver’s license is considered a contract, the “contract” is void. DURESS With respect to duress BERGH BUSINESS LAW supplies the following definition: A party must consent to a contract of his own free will. Free consent is an essential element of an agreement. Consequently, if he is coerced into signing a contract by fear induced by a threat to cause personal injury to himself or to some close relative, the contract will not be a real agreement and it will be voidable at his option. The threat of personal injury must be a threat to inflict immediate bodily injury or to institute a criminal prosecution against the person threatened or some close relative. Since it was essential to me in pursuing my occupation of common “Right” to use a vehicle upon the streets or highways, and since the State threatens to and does prosecute persons in criminal actions for not possessing a driver’s license, regardless of their status, I did obtain a driver’s license under

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duress. If then the driver’s license is a contract, the contract is unenforceable and invalid because of this duress. ALTERATIONS With respect to alterations BERGH BUSINESS LAW has the following comments: Any material alteration in a written contract by one party without the consent of the other party, gives this latter party the option of treating the contract as discharged or enforcing it as it stood before the alteration. If the driver’s license is a contract, it is a written contract, at least to the extent that the Statutes of the General Statutes are written. Each time that the General Assembly amends or modifies or adds to any of the Statutes of the General Statutes, the terms of the contract are changed. Since this Citizen then has the option of considering the contract as discharged, he then chooses to do so as of the first change in the General Statutes following his application for a driver’s license. If it is contended that the driver’s license is an implied contract, the “Statute of Frauds” comes into play. The agreement is invalid, unless the same or some note or memorandum of it, be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot be received without the writing or secondary evidence of its contents: An agreement that by its terms is not to be performed within a year from the making thereof. Since the term of the driver’s license contract is so many years and the contract is not written, the “Statute of Frauds” does apply and the contract is unenforceable. The discussion up to this point has been concerned with bilateral contracts in which each party promises something to the other party. Is it possible that the driver’s license is a unilateral contract? UNILATERAL CONTRACT

! A unilateral contract is a one-sided contract in the sense that only one side makes a promise, and the other side performs an act for which the promise was given. BERGH BUSINESS LAW . Since the act expected by the State is obedience to the Statutes of the General Statutes or Code, what promise has the State offered in exchange for this act? The only promise that the State could make to me is the promise to allow me to travel on the streets or highways of any city or town within the State. Since I can already do that as a matter of “Right,” the State can promise me nothing. Thus, there is no consideration and a unilateral contract cannot exist. Having shown that no contract exists between the State and I, let us now examine, the proposition that a quasi-contract exists between the State and I. QUASI-CONTRACT

! A quasi-contract is an obligation springing from voluntary and lawful acts of parties in the absence of any agreement. BOUVIER ’S LAW DICTIONARY . In order to establish the existence of a quasi-contractual obligation it must be shown:

! That the defendant has received a benefit from the Plaintiff. 89

! That the retention of the benefit by the Defendant is inequitable. See Woodward QUASI CONTRACTS 9. Thus, if it is contended that I must obey the Statutes in the General Statutes because of a quasi-contract, it must be shown that I received a benefit from the State. But one’s travels on the streets or highways of the State or on the Interstate is not a benefit received from the State. It was a “Right” that attached to me at the moment of my birth and cannot be removed by the State. In this respect, no benefit has been received from the State, and thus a quasi-contractual obligation cannot exist with respect to me. It may be claimed that the Statutes of the General Statutes are made pursuant to the police powers of the State, and that every person in the State is obligated to obey them. The police power is a grant of authority from the people to their governmental agents, for the protection of the health, the safety, the comfort and the welfare of the public. In its nature, it is broad and comprehensive. It is a necessary and salutary power, since without it, society would be at the mercy of individual interests and there would exist neither public order nor security. While this is true, it is only a power. It is not a “Right.” The powers of government under our system, are nowhere absolute. They are but grants of authority from the people, and are limited to their true intentional purposes. The fundamental “Rights” of the people are inherent and have not yielded to governmental control. They are not the subjects of governmental authority. They are subjects of individual authority. Constitutional powers can never transcend Constitutional “Rights.” The police power is subject to the limitations imposed by the Constitution, and upon every power of government and its agents; and it will not be suffered to invade or impair the fundamental liberties of the Citizens, whose natural “Rights” that are the chief concern of the Constitution and for whose protection it was ordained by the people. To secure their property was one of the great ends for which men entered into society. The “Right” to acquire and own property, and to deal with it and use it as the owner chooses, so long as that use harms nobody, is a natural “Right.” It does not owe its origin to constitutions. It plainly and clearly existed before them. It is a part of the Citizen’s natural liberty — an expression of his freedom, guaranteed as inviolate by every American Bill of “Rights” that we have all sworn to uphold, fight, and give our lives for. It is not a “Right,” therefore, over which the police power is paramount. Like every other fundamental liberty, it is a “Right” to which the police power is subordinate.

! It is a “Right” which takes into account the equal “Rights” of others, for it is qualified by the obligation that the use of the property shall not be to the prejudice of others. But if subject alone to that qualification, the Citizen is not free to use his lands and his goods as he chooses, it is difficult to perceive wherein his “Right” of property has any existence. (Emphasis added). Spann v. City of Dallas, 235 S. W. 513. Where inherent, unalienable, absolute “Rights” are concerned, the police powers can have no effect. The “Right” to travel on the streets or highways and the “Right” to own and use property have been described as inherent, unalienable, and absolute. Thus, the police power cannot regulate the Citizens “Right” to use a vehicle on the streets or highways.

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If the police power of the State is permitted to regulate the travels of the Citizen on the streets or highways, and if, through the action of these regulations or Statutes, I am denied access to the streets or highways; a fundamental “Right” of the Citizen has been abrogated.

! Where “Rights” secured by the Constitution are involved, there can be no rule making or legislation that would abrogate them. Miranda v. Arizona, 384 U.S. 436, 491 (1966) The abrogation of inalienable “Rights” by legislation or rule making is unconstitutional. If further proof is needed to show that this Citizen need not be licensed to travel on the streets or highways, it is provided in the following decisions:

! A license fee is a tax. Parish of Morehouse v. Brigham, 6 So. 257 A State may not impose a charge for the enjoyment of a “Right” granted by the Federal Constitution. Murdock v. Pennsylvania, 319 U.S. 105. Since a fee is charged for a driver’s license and since one’s travels on the streets or highways is a “Right” guaranteed by the Federal Constitution, and by the Law of Nature, it is not constitutional for the State to require this Citizen to be licensed to travel. Even the application for Driver’s License Form recognizes the “Right” of some persons to travel without a license. General Statutes recognizes categories of persons who are not required to be licensed in this State. Why is it then that the first demand made by the law enforcement personnel when making a traffic stop is: “Let’s see your driver’s license, registration, and proof of insurance,” and not always politely, when the first question should be; “What is your status and are you required to have a driver’s license?” Can it be, that there is a conspiracy afoot within the State, to reduce all Citizens to a status of contract? Why else would a law enforcement person take a Citizen to jail without even trying to discover if that Citizen is exempt from the requirement of having a driver’s license? The question now becomes, whether I am required to obey any of the Statutes in the General Statutes or Code of any State. It has been shown that I have a “Right” to travel on the streets or highways of the 50 States. So, any Statute that describes driving on the streets or highways of any given State as a privilege cannot apply to that Sovereign. Since my “Right” to travel cannot be abrogated, any Statute the operation of which, would have the effect of denying access to the streets or highways to this Citizen in any given State, cannot be applied. Since violation of any Statue in the General Statutes is classified as a “misdemeanor” that is punishable by a fine and six months in jail, and since putting a Citizen in jail because of his use of the streets or highways that harmed nobody, would be an abrogation of his “Right” to travel, none of the Statutes of the General Statutes apply to me. These contentions are supported by the “Supreme Court of United States.”

! An Iowa statute that requires that every foreign corporation named in it shall as a condition for obtaining a permit to transact business in Iowa, stipulate that it will not remove into the federal court certain suits that it would by the laws of the United States have a “Right” to remove, is void because it makes the “Right” to a permit dependent upon the surrender by the foreign corporation of a privilege secured to it by the Constitution and laws of the United States. BOUVIER ’S LAW DICTIONARY quoting Barron v. Burnside, 121 U.S. 186. 91

This decision is consistent with that in Miranda in which it was stated that where “Rights” are concerned, there can be no rule making or legislation that would abrogate them. It is also consistent with the discussion in the following case. This case is a tax case, but the discussion on “Rights” that it contains is appropriate. Individual and a Corporation

! There is a clear distinction in this particular case, between an individual and a corporation, and that the latter has no “Right” to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional “Rights” as a Citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation so far as it may tend to incriminate him. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life and property. His “Rights” are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his “Rights” are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their “Rights.” Hale v. Henkel, 201 U.S. 43. The emphasized statement is also consistent with North Carolina Statutes. In the Statute it reads:

! Common law in force. The common law of England, as far as it is not repugnant to or inconsistent with the Constitution or laws of the United States in all cases not provided for in these compiled laws, is the rule of decision in all courts in this state. Since the Statutes of the General Statutes cannot apply to me, I become subject to the “Common Law” that maintains that I owe nothing to the public, so long as I do not trespass upon their “Rights”. Is it my contention that because the Statutes contained in the General Statutes do not apply to me that the Statutes are unconstitutional? Absolutely not. There is a class of persons to whom these Statutes apply without reservation. Members of this class include corporations and those who do the corporation business on the streets or highways. A corporation is the creation of the State.

! A corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises and holds them, subject to the laws of the State and the limitations of its charter. Its “Rights” to act as a corporation are only preserved to it while it obeys the laws of its creation. BOUVIER ’S LAW DICTIONARY , 1914 p. 684

! A Corporation is a person in the eyes of the law but it lacks character, morals, and has no conscience. It’s every activity must be directed and supervised by the State. Under the definition of “Due Process of Law.” BOUVIER ’S LAW DICTIONARY states in part:

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! The liberty guaranteed is that of a natural person and not of artificial persons; Western Turf Assn. v. Greenberg, 204 U.S. 359, where it was said “a corporation cannot be deemed a Citizen within the meaning of the clause of the Constitution of the United States which protects the privileges and immunities of Citizen’s of the United States against being abridged or impaired by the law of a State.” (See also 203 U.S. 243). The Statutes in the General Statutes are designed to direct the activities of the class of persons of which a corporation is a member. Corporations are absolutely bound by these Statutes. It is imperative that a conscienceless entity not be allowed to roam the streets or highways and jeopardize the Citizens. It is for this purpose that the Statutes of the General Statutes were enacted and not for the control of a Free and Natural Citizen. Conclusion There is no Court in this Land that could lawfully execute an Order that would or could cause, or work to compel, One to become a servant or slave of any City, County or State without a conviction and with full Due Process of Law, and for any City, County, or State to pretend otherwise is an absurdity.

Thus, there can be little doubt that, when this Citizen travels upon the roadways, he does so, as a matter of “Right” and not a privilege granted by the State. The authority for such travel is described variously as a “Right,” a “COMMON RIGHT,” an “ABSOLUTE RIGHT,” an “INALIENABLE RIGHT,” and a “Right” protected by the “Constitution of the United States”. Let us then examine the importance of these terms to this Citizen by defining their meaning. As member of the Sovereignty of the people, I not only am entitled to use the highways and byways in the United States of America but I have the inalienable right to use those highways and byways. I demand all of my other rights, including the right to travel upon the public highways and byways in the United States of America.

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Conclusion: Even though my case is complicated as it stands I have added the United Nations as lead defendant making it even more complicated. Therefore I will be filing a Rule 12(c)(12) Motion for Case Management guided by the Annotated manual for Complex Litigation, 4th Ed., 2006 by David Herr, pub. Thomson/West. Because everything in Defense Counsel’s MEMORANDUM was defunct by reasonable explanations the Court MUST deny Defense Counsel’s motion and allow my case to proceed to trial. Respectfully submitted.

Don Hamrick 5860 Wilburn Road Wilburn, Arkansas 72179 Email: [email protected]

CERTIFICATE OF SERVICE On January 25, 2007, I hereby certify that I delivered the above by Priority Mail to the named defendants, and to the U.S. Attorney H.E. Bud Cummins in Little Rock, Arkansas.

Don Hamrick, Petitioner, Pro Se 5860 Wilburn Road Wilburn, Arkansas 72179 (501) 728-4235 [email protected] §

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