plaintiff objection to motion to dismiss 06-0044

United States District Courtfor the Eastern District of Arkansas, Northern Division

Don Hamrick, pro se )(Private Attorney General) )(Non-State Actor) )

5860 Wilburn Road )18 U.S.C. § 1964(c)Wilburn, AR 72179 ) 42 U.S.C. § 1983; § 1985; § 1986; § 1988

PLAINTIFF )v. )

)United Nations, et al ) Jury Trial Demanded

c/o Ban Ki-Moon, Secretary General )Damages Sought:405 E 42 Street )$14.4 million from United States Defendantsnd

New York, NY 10017 )$14.4 million from United NationsDEFENDANTS )

Civil RICO Act ComplaintNo. 1:06-cv-0044

PLAINTIFF’S OBJECTION TO

MOTION TO DISMISS

This case has the potential to be considered asa case of first impression!

“A Second Amendment case from a merchant seaman’s perspectiveexamined through federal laws and international law on human rights”

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LIST OF DEFENDANTS

United Nationsc/o Ban Ki-Moon, Secretary General

405 E 42 Streetnd

New York, NY 10017

President George W. BushWhite House

1600 Pennsylvania Ave.Washington, DC 20500

Michael Chertoff, SecretaryDepartment of Homeland Security

Washington, DC

Michael PrendergastAssociate Director for Security Operations

U.S. Department of Transportation400 7 Street, SWth

Washington, DC

Admiral Thad AllenCommandant (G-C)U.S. Coast Guard

2100 2 Street, SWnd

Washington, DC

(1) Judge Reggie B. Walton(2) Judge Ellen Segal Huvelle

U.S. District Court for DC333 Constitution Ave., NW

Washington, DC 20001

Dennis BarghaanU.S. Attorney’s Office2100 Jamieson Ave.

Washington, DC 22314

Heather Graham-OliverU.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 8 CircuitOn the Excessive Use of Summary Judgeth . . . . . . . . . . . . . . . . . . . . . . . . . . 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

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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, 6 Circuitth . . . . . . . . . . . . . . 70

2. State v. Burnett (2001), 93 Ohio St.3d 419.] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

3. Defining Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

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JUDICIAL NOTICE RE: INITIAL SCHEDULING ORDER!

THERE IS NO RULING ON DEFENDANT’S MOTION TO DISMISS!

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 RIGHTS, the INTERNATIONAL BILL OF HUMAN RIGHTS, and the CONVENTION ON THE

PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE .

The Honorable Thomas J. Shields, United States Magistrate Judge for the Southern1

District of Iowa, to whom the case was referred for final disposition by consent of the partiespursuant to 28 U.S.C. § 636(c).

2

MOTION FOR PERMANENT INJUNCTION

AGAINST DEPT./TRANSPORTATION & U.S. COAST GUARD

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 8 CIRCUITTH

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’s order granting summary1

judgment to Car-Freshener Corporation (Car-Freshener) on Melvin’s common law claimof retaliatory discharge in violation of public policy. We affirm.

LAY, Circuit Judge, dissenting

I respectfully dissent. Melvin has presented sufficient evidence from which a reasonablejury could infer that she was terminated because her injury qualified her for workers’compensation benefits. Although temporal proximity between protected conduct anddischarge is insufficient to establish retaliation under Iowa law, Hulme v. Barrett, 480N.W.2d 40, 43 (Iowa 1992), temporal proximity coupled with another aggravatingfactor, however undefined, can support an inference of retaliation for purposes ofsummary 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 therewere no positions available in the pack department. However, Car-Freshener rehiredthree 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 concernsit would further aggravate her injuries.

Car-Freshener emphasizes its economic downturn as the reason for Melvin’s terminationand the majority concludes Melvin cannot establish her engagement in a protectedactivity was the determinative factor in this case. However, I submit the inconsistenciesin Car-Freshener’s explanations, coupled with the timing of Melvin’s termination, are

Plaintiff’s emphasis.2





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enough evidence from which a reasonable jury could infer Melvin was terminatedbecause she qualified for workers’ compensation benefits. “A factor is determinative ifit is the reason that ‘tips the scales decisively one way or the other,’ even if it is not thepredominate 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 summaryjudgment in cases where issues of fact remain. This is especially true in cases where2

witness credibility will be determinative. In these instances, a jury, not the courts, shouldultimately decide whether the plaintiff has proven her case. Summary judgmentshould be the exception, not the rule. It is appropriate “only . . . where it is3

quite clear what the truth is, . . . for the purpose of the rule is not to cutlitigants 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 allowsoverextended courts to remove cases that lack merit from their dockets. See CelotexCorp. 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 Blackexplained,

The right to confront, cross-examine and impeach adverse witnesses isone of the most fundamental rights sought to be preserved by theSeventh Amendment provision for jury trials in civil cases. Theadvantages of trial before a live jury with live witnesses, and all thepossibilities of considering the human factors, should not be eliminatedby substituting trial by affidavit and the sterile bareness of summaryjudgment.

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 juryin this case. However, she and all other similarly-situated plaintiffs should beafforded the opportunity to do so.6

______________________________

Pleading, 61A Am. Jur 2d § 108. Footnotes omitted.7

Summary Judgment, 73 Am. Jur. 2d IV. Oposition.8

Monmouth Lumber Co. V. Indemnity Ins. Co. Of North America, 21 N.J. 439, 122 A.2d 604, 599

A.L.R.2d 742 (1956); Gilchrist v. Trail King Industries, Inc., 2000 SD 67, 612 n.w.2D 10 (S.D. 2000).

National Life Ins. Co. v. Solomon, 529 F.2d 59 (2d Cir. 1975); Costlow v. U.S., 552 F.2d 560 (310 rd

Cir. 1977); Littlejohn v. Shell Oil co., 483 F.2d 1140 (5 Cir. 1973); Harris v. Pate, 440 f.2d 315 (7 Cir.th th

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

RULE OF LIBERAL CONSTRUCTION7

Underlying the construction of any pleading in a Federal District Court is the principlethat pleadings must be so construed as to do substantial justice. To this end, acomplaint is to be liberally construed in favor of the pleader, with the benefit of allproper inferences being given to him orher. This principle of liberal construction ofpleadings embodies the fundamental design of the Federal Rules to preserve thesubstances of an action from failing because of the technical irregularities in form.

Liberal construction of pleadings, so as to do substantial justice, is particularlyappropriate where the pleader is not learned in the law.

Reasonable factual inferences should be drawn to aid the pleader, with the benefit ofall proper inferences being givien to him or her, especially in antitrust cases, where proofis largely in the hands of the alleged cnspirators. Every fact will sbe supplied that canreasonably be inferred from what is specifically stated.

PRO SE PLEADINGS

The general policy of the Federal Rules of Civil Procedure favors adjudication on themerits, rahter than technicalities of procedure and form, and is especially applicable inthe case of a pro se complaint, since pro se complaints are generally held to lessstringent standards than formal pleadings drafted by attorneys. Thus, a pro se complaintshould be liberally construed, and should not be dismissedmerely because it does notstate with precision every element of the offense necessary for recovery. Beforedismissing a pro se complaint on the basis of conclusory allegations, the court shouldmake an effort to specifically explain the deficiencies in the complaint, and invite theplaintiff to amend with more particular statements of claims.

OPPOSITION TO SUMMARY JUDGMENT8

“. . . Rule 56(f) of the Fed. R. Civ. P. and similar state rules provide that, if it appearsfrom the affidavits of a party opposing a motion for summary judgment that he or shecannot 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 thatthe opponent can conduct discovery, or may make such other order as is just. A court9

may refuse summary judgment or order a continuance under Rule 56(f) if the opposingparty has not had an adequate opportunity to obtain and present materials in supportof the opposition.10

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

Summary Judgment, 73 Am. Jur.2d (V).(C). Footnotes omitted.11

5

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

WHAT CONSTITUTES A GENUINE ISSUE OF MATERIAL FACT11

A material or genuine issue of fact that will preclude the granting of a summaryjudgment for the plaintiff is raised if the facts alleged by the defendant, if proved aresuch as to constitute a legal defense. If the affidavit of defense shows a substantial issueof 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 theexercise of impartial judgment could reasonably infer the existence of the fact sought tobe proved.

If the affidavits on the one side and on the other are directly opposed as to the factsshown, the case must go to trial. The court cannot weigh the sworn affidavits againsteach other and then grant summary judgment.

If there is any doubt as to the existence of a material and triable issue of fact, or levenif the issue is “arguable,” the drastic remedy of summary judgment should not begranted. All doubts as to the existence of a genuine issue of material fact should beresolved against a party moving for a summary judgment.

FACTS THAT SUPPORT MORE THAN ONE INFERENCE

It has been held that, if the facts shown by the evidence on a summary judgment motionsupport 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 isprecluded, particularly if the issue turns on credibility or if the inferences depend uponsubjective feelings or intent.

WHAT CONSTITUTES A GENUINE ISSUE

A genuine issue, within the rule that summary judgment may be granted if there are nogenuine 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 bemaintained by substantial evidence. It has also been held that “genuine” in this context

Summary Judgment, 73 Am. Jur.2d § 17 Burden of Proof.12

Marandola v. Hillcrest Builders, Inc., 102 R.I. 46, 227 A.2d 785 (1967); Swatek v. County of13

Dane, 192 Wis. 2d 47, 531 N.W.2d 45 (1995).

Gavin v. Peoples Natural Gas Co., 613 f.2d 482 (3d Cir. 1980); Taylor v. Liberty Mut. Ins. Co.,14

281 So. 2d 920 (Fla. Dist. Ct. App. 2d Dist. 1973); Kelley v. Kadinger Marine Service, Inc., 191 Wis. 2d 31,

6

means that the evidence is such that a reasonable jury could resolve the fact in themanner 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.

WHAT CONSTITUTES A MATERIAL ISSUE

For the purposes of Fed. R. Civ. P. 56 and similar state rules and statutes, which providethat summary judgment is appropriate only if there are no genuine issues of materialfact, “material” means that the contested fact has the potential to alter the outcome ofthe suit under the governing law if the controversy over it is resolved satisfactorily to thenonmovant. In other words, material facts are those that tend to prove or disprove anelemen of a disputed claim for relief or that are necessary to the proof or defense of aclaim, and are determined by reference to substantive law. In determining whether amaterial factual dispute exists on a summary judgment motion, the court views theevidence through the prism of the controlling legal standard. In other words, thedetermination of whether a given factual dispute requires submission to a jury must beguided by the substantive evidentiary standards that apply to the case.

WHAT MAY BE CONSIDERED

Federal Rule 56(c) expressly includes “answers to interrogatories” among the materialswhich may be considered on a motion for summary judgment. Thus, under both thefederal 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 oralexamination or those which are a method for pretrial discovery, in determining a motionfor summary judgment.

When considering a motion for summary judgment, a trial court may properly resort tojudicial notices, stipulations, or depositions taken and duly filed in a former action thatinvolved the same subject matter and the same parties or their privies.

ON SUMMARY JUDGMENT

The Defendants have failed to sustain their burden of showing that there is no genuineissue as to material fact. Therefore, they are not entitled to Summary Judgment. If themovant fails to meet this burden of proof, the nonmovant is not required to submit anyevidence to survive the motion for summary judgment. While this may be true I,12

nevertheless, present my OBJECTION TO MOTION TO DISMISS.

The primary function and duty of the court in passing upon a motion for summaryjudgment is to determine whether there is a issue of fact to be tried. If there are any13

genuine issues of material fact, the motion for summary judgment should be denied.14

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


U.S. v. Lewisburg Area School Dist., 539 F.2d 301 (3d Cir. 1976) (stipulation of facts and16

exhibits); S & S Logging Co. V. Barker, 366 F.2d 617 (9 Cir. 1966) (depositions with affidavits); Smith v.th

Yellow Freight System, In., 536 F.2d 1320 (10 Cir. 1976) (exhibits and affidavits); Fifield v. American Autoth

Ass’n, 262 F. Supp. 253 (D. Montana 1967) (alleged defamatory matter in libel action).

Solis-Ramirez v. U.S. Dept. of Justice, 758 F.2d 1426 (11 Cir. 1985); Universal Underwriters Ins.17 th

Co. v. Thompson, 776 So. 2d 81 (Ala. 2000).

Schuck v. Montefiore Public School Dist. No. 1, 2001 ND 93, 626 N.2W.2d 698 (N.D. 2001).18

7

“In particular cases, however, “matters outside the pleadings” that have beensanctioned to convert a motion under Rule 12(b)(6) or (c) into a motion for a summaryjudgment include oral testimony, exhibits, documents, and records from prior15

proceedings, stipulations or agreed statements of fact, alleged defamatory matter in alibel 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, THE 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, whichis considered part of the pleading, does not convert a motion to dismiss into a motionfor 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 dispositionof a controversy without a trial.” “The primary purpose of summary judgment18

procedure is to determine whether there areany triable issues of fact requiring a formal

R. D. Reeder Lathing co. v. Allen, 66 Cal. 2d 373, 57 Cal. Rptr. 841, 425 P.2d 785 (1967);19

Danielewicz v. Arnold, 137 Md. App. 601, 769 A.2d 274 (2001).

Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 766 A.2d 617 (2001).20

Hartsel v. Keys, 87 F.3d 795, 1996 FED. App. 184P (6 Cir. 1996).21 th

Norwood Morris Plan co. v. McCarthy, 295 Mass. 597, 4 N.E.2d 450, 107 A.L.R. 1215 (1936).22

Broussard v. Moon, 431 S.W.2d 534 (Tex. 1968).23

Dixon v. Bhuiyan, 2000 OK 56, 10 P.3d 888, 147 Ed. Law Rep. 1106 (Okla. 2000).24

Aloha Pools & Spas, Inc. V. Employer’s Ins. of Wausau, 342 Ark. 398. 39 S.W.3d 440 (2000)25

Iannelli v. Burger King Corp., 761 A.2d 417 (N.H. 2000).26

Pankratz v. State, Dept. of Highways, 652 P.2d 68 (Alaska 1982).27

8

trial on the merits, rather than to decide factual disputes. The province of a court19

considering a motion for summary judgment is not to tryissues of fact, but rather todetermine whether such an issue exists.” “However, a court, in ruling on a motion for20

summary judgment, must make a preliminary assessment of the evidence to decidewhether 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 adifferent footing than those in which the trial judge is determining a question of fact onaffidavits.” “The later situation corresponds to that of a judge directing a jury to22

render a verdict on admitted facts in the plaintiff’s favor.” “Summary judgment also23

promotes the search for undisputed material facts that can be applied in the judicialdecision-making process.”24

Because the practical result of applying the summary judgment remedy is to deprive theparty against whom judgment I granted of a trial in the usual course, the remedy is adrastic one that should be used with great caution and only in those cases in which thejustice of its application is clear.” “Although summary judgment saves time, effort, and25

expense by avoiding a full trial under certain circumstances, those savings may not begained at th expense of denying a litigant the right of trial if there is a genuine issue ofmaterial fact to be litigated.” 26

RES JUDICATA IS NOT AN AFFIRMATIVE DEFENSE IN THIS CASE

“. . . [A] court should not grant summary judgment on res judicatagrounds 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

Stephen P. Halbrook, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL R IGHT54

at 104 (Univ. of N.M. Press 1984) (citing 5 Frederick Douglass, LIFE AND WRITINGS 201, 375 (Foner ed.,

1950)).

Id. 55

9

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 COMPLAINT ADDING THE UNITED NATIONS AS LEAD DEFENDANT the Government is barred from

applying res judicata as an affirmative defense.

THE FEDERAL JUDICIARY WARRING AGAINST CIVIL RIGHTS:

THE BUCKHANNON CASE

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 IMPLICATIONS 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. Mr. Douglass54

questioned interpretations that substituted a part of the people for the whole people.55

Id. (citing 2 Frederick Douglass, LIFE AND WRITINGS 201, 420 (Foner ed., 1950)). 56

10

He wrote that such selective readings of the term disregarded "the plain andcommonsense reading of the instrument itself; by showing that the Constitution does notmean 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 INTERVIEWS. 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 progressof human liberty shows that all concessions yet made to her august claims, have beenborn of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and forthe time being, putting all other tumults to silence. It must do this or it does nothing. Ifthere is no struggle there is no progress. Those who profess to favor freedom and yetdepreciate agitation, are men who want crops without plowing up the ground, theywant rain without thunder and lightening. They want the ocean without the awful roarof its many waters.”

“This struggle may be a moral one, or it may be a physical one, and it may be bothmoral and physical, but it must be a struggle. Power concedes nothing without ademand. It never did and it never will. Find out just what any people will quietly submitto and you have found out the exact measure of injustice and wrong which will beimposed upon them, and these will continue till they are resisted with either words orblows, or with both. The limits of tyrants are prescribed by the endurance of thosewhom they oppress. In the light of these ideas, Negroes will be hunted at the North, andheld and flogged at the South so long as they submit to those devilish outrages, andmake no resistance, either moral or physical. Men may not get all they pay for in thisworld; but they must certainly pay for all they get. If we ever get free from theoppressions and wrongs heaped upon us, we must pay for their removal. We must dothis by labor, by suffering, by sacrifice, and if needs be, by our lives and the lives ofothers.”

Contesting Case Law

Absent a clear statement that claims are being asserted against the government officialsin their personal capacities, a complaint is regarded as asserting claims against thedefendants in their official capacities. Johnson v. Outboard Marine Corporation, 172F. 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?

In its original form, the Civil Rights Act of 1964, the cornerstone of the Second Reconstruction,127

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).

42 U.S.C. § 1988(b) (“In any action or proceeding to enforce a provision of sections 1977,128

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 ....”).

See S. Rep. No. 94-1011, at 1-3 (1976); H.R. Rep. No. 94-1558, at 1 (1976). 129

The Supreme Court’s decision in Memphis Community School District v. Stachura, 477 U.S. 299130

(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

2002

DISARMING THE PRIVATE ATTORNEY GENERAL

Pamela S. Karlan

Research Paper No. 36, 2002Stanford Public Law and Legal Theory

Working Paper Series

Stanford Law SchoolCrown Quadrangle

Stanford, California 94305-8610

IV.

BUCKHANNON BOARD AND CARE HOME V. WEST VIRGINIA DEPARTMENT OF

HEALTH AND HUMAN RESOURCES AND THROTTLING THE CATALYST THEORY

Attorney’s fees are the fuel that drives the private attorney general engine. Every significantcontemporary civil rights statute contains some provision for attorney’s fees, and in 1976, Congress127

passed a comprehensive attorney’s fee statute that provides for fees under the most importantReconstruction Era civil rights statutes as well. The rationale for fee awards rests on several128

interlocking considerations. First, most civil rights plaintiffs are unable to afford counsel and without129

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 concentrateon cases involving the possibility of large damages awards and the attendant contingent fee, and foregocases which involved only equitable relief or where the right, while important, was not easily translatedinto a large damages award for the named plaintiffs. But this often do the most to vindicate important130

societal interests. They are the ones where plaintiffs function most clearly as private attorneys general.

See North Carolina Dep’t of Transportation v. Crest St. Community Council, 479 U.S. 6 (1986)131

(holding that time spent in an administrative proceeding to enforce Title VI regulations would not entitle

successful claimants to an attorney’s fee award).

See, e.g., Farrar v. Hobby, 506 U.S. 103, 115 (1992) (suggesting that in many cases, a plaintiff132

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).

532 U.S. 598 (2001).133

See id. at 600.134

42 U.S.C. §§ 3601 et seq. (1994).135

42 U.S.C. §§ 12101 et seq. (1994).136

Buckhannon Home originally also sought damages, but dropped this claim early on when the137

defendants raised claims of sovereign immunity. See Buckhannon Home, 532 U.S. at 624 (Ginsburg, J.,

dissenting).

Buckhannon Home, 532 U.S. at 604 (emphasis added) (quoting Texas State Teachers Assn. v.138

Garland Independent School Dist., 489 U.S. 782, 792 (1989)).

12

There is something sadly fitting about the very first decision issued by the Rehnquist Court: Itheld that citizens who vindicate their Title VI rights in the administrative forum to which Alexander v.Sandoval consigns them cannot recover attorney’s fees. In the ensuing fifteen years, the Rehnquist131

Court has issued a series of similarly parsimonious fees decisions. Last Term’s decision in132

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 promptsa defendant to change its conduct “voluntarily” – that is, without an actual court order – is a134

“prevailing party” and therefore statutorily entitled to recover a reasonable attorney’s fee for the timespent on the litigation. After it was threatened with closure of its assisted-living care facilities for failureto meet a state regulation, Buckhannon Home brought a federal lawsuit claiming that the regulationviolated the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act,135 136

and seeking declaratory and injunctive relief. Less than a month after the district court rejected the137

defendants’ motion for summary judgment, the West Virginia Legislature repealed the regulationBuckhannon Home had challenged. The defendants then moved to dismiss the case as moot, andBuckhannon Home, which claimed that its suit had triggered the statutory repeal, moved for attorney’sfees as a “prevailing party” under the fees provisions of the FHAA and the ADA, which follow thestandard 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 themeaning of the fees statutes unless it achieves “a court-ordered ‘change [in] the legal relationshipbetween [it] and the defendant.’” To be entitled to an award of attorney’s fees, plaintiffs must either138

receive an adjudicated judgment on the merits or persuade the defendant to enter into a consent

In Evans v. Jeff D., 475 U.S. 717 (1986), the Supreme Court held that defendants can offer139

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”).

Buckhannon Home, 532 U.S. at 605.140

Id. at 608-09.141

See id. at 609 n.10.142

Id. at 608.143

Id. at 606.144

Justice Scalia remarked that if he were writing on a clean slate, he would decline to award fees145

even to a plaintiff who obtains a consent judgment. See id. at 618 (Scalia, J., concurring).

Id.146

13

judgment that provides for some sort of fee award. Otherwise, their achievement“lacks the139

necessary judicial imprimatur.”140

Chief Justice Rehnquist’s opinion for the Court downplayed the negative effects of the decisionon plaintiffs’ ability to vindicate their rights. First, he suggested that the danger of defendants’ unilaterallydenying plaintiffs’ their right to fees was limited to a small class of cases. That threat “only materializesin claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant'schange in conduct will not moot the case.” Of course, as the Chief Justice himself acknowledged in141

a footnote, there is a broad class of claims for which damages are not even theoretically available: thoseto which the Eleventh Amendment applies. Moreover, to the extent that suits seeking only equitable142

relief lie at the core of the vision of the private attorney general as champion of the public interest, theCourt’s theory countenances cutting off the cases that particularly motivated Congress to provideattorney’s fees. More systematically, the Court’s decision reintroduces the skewing effect on caseselection: civil rights attorneys who want to safeguard the possibility of recovering fees will chooselawsuits in which damages are available over lawsuits that involve only injunctive relief, even if the latterlawsuits are more socially valuable.

Second, the Chief Justice suggested that the catalyst theory might actually have perverseconsequences for plaintiffs. In a no-catalyst theory world, where fees can be avoided by unilateralabandonment, a defendant whose conduct is detrimental to the plaintiff but not actually illegal mightchange 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 thecatalyst theory as giving fees to a plaintiff who “by simply filing a nonfrivolous but nonethelesspotentially meritless lawsuit (it will never be determined), has reached the ‘sought-after destination’without obtaining any judicial relief.” In short, the Court feared a windfall for undeserving plaintiffs144

– those who persuade defendants to abandon “conduct that may not be illegal” – if the lower federalcourts could award fees without first being required to find actual violations. Justice Scalia’s concurrenceis more blunt: The plaintiff who induces a defendant to abandon conduct that no court has found to beillegal may be getting rewarded for “a phony claim.” As between giving a fee to someone with a145 146

Id.147

Gunther, Gerald Gunther, The Subtle Vices of the “Passive Virtues” – A Comment on Principle148

and Expediency in Judicial Review, 64 Colum. L. Rev. 1 at 25. (1964).

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).149

5 U.S. at 163.150

The Federalist, No. 78, supra note 3, at 465.151

14

phony claim and denying a fee to a plaintiff with a solid case whose opponent manipulates the systemto 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 thedifference in the world between a rule that denies the extraordinary boon of attorney’sfees to some plaintiffs who are no less "deserving" of them than others who receivethem, and a rule that causes the law to be the very instrument of wrong – exacting thepayment 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 essentialtool. And civil rights plaintiffs are potential extortionists, rather than potential victims of conduct that theConstitution 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 section5 of the Fourteenth Amendment, and from when to find implied rights of action to when to awardattorney’s fees – can be stated quite simply: The current Court is creating an ever-greater regulation-remedy gap. It has left Congress free to regulate a wide range of subjects, but it is engaged in a form ofcourtstripping that reduces the possibilities for judicial enforcement of statutory commands. Toparaphrase my colleague Gerry Gunther, a “virulent variety of free-wheeling interventionism lies at thecore of [the Court’s] devices of restraint.”148

The Congress and Supreme Court of an earlier era constructed the institution of the privateattorney general because they recognized that, without private attorneys general, it would be impossibleto realize some of our most fundamental constitutional and political values. The current Court seemsbent on dismantling this centerpiece of the Second Reconstruction. For all its invocations of Marbury’sdeclaration that it “is emphatically the province and the duty of the judicial department to say what thelaw is,” the current Court seems to have forgotten Marbury’s equally important acknowledgment –149

that “the government of the United States has been emphatically termed a government of laws, and notof men,” but “will certainly cease to deserve this high appellation, if the laws furnish no remedy for theviolation of a vested legal right.” When the law furnishes no remedy because the Supreme Court150

has cast out the remedies that the political branches have tried to provide, then the courts threaten tobecome the most dangerous branch “to the political rights of the Constitution,” and not the least.151

See Associated Indus. of N.Y. State, Inc. v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943), vacated as1

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).

See Bryant Garth et al., The Institution of the Private Attorney General: Perspectives from an2

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’”).

The term thus aligns with what Louis Jaffe famously dubbed the “non-Hohfeldian plaintiff,” and3

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

Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23

YALE L.J. 16 (1913).

See Chayes, supra note 3, at 1284 (including these areas, among others, as examples of private4

attorney general litigation).

15

2004

PRIVATE ATTORNEYS GENERAL AND

THE FIRST AMENDMENT

by Trevor MorrisonCornell Law School Legal Studies Research Paper Series No. 04-017

Cornell Law SchoolMyron 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 sixdecades since it was named, in part becauseit has come to signify so many different things. At its core,1 2

however, the term denotes a plaintiff who sues to vindicate public interests not directly connected to anyspecial stake of her own. The remedies sought in such actions tend to be correspondingly broad: rather3

than seeking redress for discrete injuries, private attorneys general typically request injunctive or otherequitable relief aimed at altering the practices of large institutions. From school desegregation to fairhousing, environmental management to consumer protection, the impact of private attorney generallitigation is rarely confined to the parties in a given case. It is perhaps unsurprising, then, that the4

private attorney general has not been universally admired. While some regard it as critical to theeffectuation of the public interest, others worry its authority may be abused by plaintiffs better likened

Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S.5

598, 618 (2001) (Scalia, J., concurring).

539 U.S. 654 (2003) (dismissing writ of certiorari as improvidently granted).6

See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 5637

(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.”).

CAL. BUS. & PROF. CODE § 17200 (West 1997). When a private plaintiff sues to enforce a8

speech-restrictive law, the judiciary’s involvement 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.”).

See infra notes 187-194 and accompanying text.9



Brief for the United States as Amicus Curiae Supporting Petitioners at 21, Nike, Inc. v. Kasky, 53912

U.S. 654 (2003) (No. 02-575). MORRISON 2.DOCFINAL CHECK 2/25/2005 10:54

Id. at 8.13

16

to “extortionist[s].” Much of this disagreement concerns the wisdom of relying on private actors to5

implement broad public norms. Occasionally, however, arguments surface about the legality of doingso. The latest challenge to the private attorney general takes the latter form, and comes from a ratherunlikely quarter: the First Amendment.

The challenge arose in Nike v. Kasky. The case was ostensibly about the Supreme Court’s6

commercial speech doctrine, which generally permits the government to promote accuracy and integrityin 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 misleadingadvertising,” alleging that Nike had publicly misrepresented the working conditions in its8

subcontractors’ factories. The main question before the Supreme Court was whether Nike’s statements9

constituted “commercial” or “noncommercial” speech.10

The Solicitor General of the United States filed a brief as amicus curiae supporting Nike, buturging the Court to avoid the commercial/noncommercial issue. Instead, he focused on the fact that thesuit against Nike was initiated by a private attorney general. California law provided that, in additionto direct government enforcement, unfair competition and false advertising actions could be broughtby private plaintiffs even without any allegation that they had been injured by the statements inquestion. 11 In the Solicitor General’s view, that feature of the California regime exceeded the11

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 turnthreatened to “chill[] the scope of public debate and the free flow of useful information.” To protect12

against that harm, the Solicitor General urged the Court to hold that the First Amendment bars “legalregimes in which a private party who has suffered no actual injury may seek redress on behalf of thepublic for a company’s allegedly false and misleading statements.”13

Id. at 23.14

Although not framed as such, the argument may echo certain themes sounding in the largely15

moribund “private delegation doctrine.” Applied to state governments, the doctrine imposes 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 Amendment, the Nike argument against private attorneys general could have been supported by

recourse to the private delegation doctrine.

See DEE PRIGDEN, CONSUMER PROTECTION AND THE LAW § 5:9 (2002). MORRISON16

2.DOC 2/25/2005 10:54 AM

See Nike, Inc. v. Kasky, 539 U.S. 654 (2003).17

Justice Breyer issued an opinion dissenting from the dismissal, expressing apparent support for18

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

At the same time, the Solicitor General argued there should be no bar to direct governmentenforcement of speech restrictions substantively identical to those invoked by the plaintiff in Nike. Heasserted that the Federal Trade Commission and its state counterparts are subject to “institutionalchecks” such as “legislative oversight and public accountability,” which ensure that their actions do14

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 anyallegation that the challenged speech has caused any specific injury. Accordingly, the Solicitor Generalreasoned, the Court ought to invalidate the California private attorney general regime while preservingthe power of government entities to bring essentially identical enforcement actions.

The argument was nothing if not novel. A number of state consumer protection laws observe15

the distinction advocated by the Solicitor General — requiring injury in suits brought by private plaintiffsbut not in those initiated by the government 16 — but the Solicitor General pointed to no judicial16

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 improvidentlygranted, but not before as many as five Justices expressed at least some interest in the Solicitor17

General’s argument. More recently, in November 2004, the California voters endorsed a ballot18


See, John H. Sullivan, PROPOSITION 64: A GOOD FIX OR A D ISASTER? 10 REASONS LAWYERS20

SHOULD VOTE YES, CAL. B.J., Oct. 2004, at 8.

Andrea Dworkin & Catharine Mackinnon, PORNOGRAPHY AND C IVIL R IGHTS: A NEW DAY FOR21

WOMEN’S EQUALITY 141 (1988).

Catharine Mackinnon, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 190 (1987).22

See American Booksellers Ass’n v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985) (“The23

definition of ‘pornography’ is unconstitutional.”), aff’d mem., 475 U.S. 1001 (1986).

Nadine Strossen, DEFENDING PORNOGRAPHY: FREE SPEECH, SEX, AND THE FIGHT FOR WOMEN ’S24

R IGHTS 76 (1995).

See, e.g., Paul Brest & Ann Vandenberg, Politics, Feminism, and the Constitution: The25

Anti-Pornography Movement in Minneapolis, 39 STAN. L. REV. 607, 640 (1987) (noting concernsthat “the ordinance . . . made a bookseller vulnerable to suits brought by almost anyone and forany motivation,” and describing “‘fear of what groups like the Moral Majority could do with theDworkin-MacKinnon ordinance as a precedent’”).

18

initiative that limited the litigating authority of private attorneys general by imposing an injuryrequirement along the very lines proposed by the Solicitor General in Nike. Those who campaigned19

in favor of the new limits justified them, in part, on First Amendment grounds. 20 Thus, both at the20

Court and in the public at large, the idea of a First Amendment distinction between public and privateenforcement seems to be attracting support.

If formally embraced as a doctrinal matter, this distinction could have substantial theoretical andpractical consequences, the latter hardly limited to the field of consumer protection. Consider, forexample, 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 ordinancemade “trafficking in pornography” a civil offense actionable by “any woman . . . acting against thesubordination of women.” The underlying theory was that pornography inflicted harm on all women,21 22

but the ordinance did not require any showing of injury in the conventional sense. Rather, all womenwere authorized to enforce the trafficking provision as private attorneys general. Courts made quickwork of the ordinance as enacted in Indianapolis, concluding its definition of pornography wasviewpoint-discriminatory and thus facially unconstitutional. Although courts thus had no occasion to23

consider other arguments against the ordinance, free speech advocates suggested the traffickingprovision had additional constitutional flaws in that it allowed “anyone to bring a lawsuit to halt anyproduction or distribution of sexual materials.” The problem, on this view, was that the speech in24

question would be intolerably chilled if over half the population was suddenly empowered to regulateit. Whether applied to commercial speech, pornography, or any other area of regulated expression,25

the public/private distinction urged in Nike might seem a ready solution to such problems. Especiallywhere a regulation’s substantive provisions are couched in relatively malleable terms, authorizing thegeneral 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 subjectto abuse, and — to the extent the officials responsible for enforcement are sympathetic to the positionof the entities they regulate — more restrained.

See, e.g., Virginia v. Black, 538 U.S. 343, 358 (2003) (“The protections afforded by the First26

Amendment . . . are not absolute, and we have long recognized that the government may regulate certain

categories of expression consistent with the Constitution.”).

See, e.g., Eldred v. Ashcroft, 537 U.S. 186 (2003) (copyright); Bolger v. Youngs Drug Products27

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, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 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 1777-

84.

See Chayes, supra note 3, at 1282 (“In our received tradition, the lawsuit is a vehicle for settling28

disputes between private parties about private rights.”).

See, e.g., Louis Kaplow, Private Versus Social Costs in Bringing Suit, 15 J. LEGAL STUD. 371,29

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”).

See Chayes, supra note 3, at 1284 (describing “public law litigation” as an “emerging model,”30

replacing the “traditional model” of private dispute resolution).

19

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 FirstAmendment tolerates some content-based limits on speech. True threats, fighting words, defamation,26

obscenity, copyright-infringing speech, and commercial speech are all examples of “speech” subject toregulation on the basis of its content. But the fact that certain speech may be regulated does not mean27

that all forms of such regulation are permissible; the First Amendment cares about the means as wellas the ends of speech regulation. The question raised here is whether the First Amendment’s sensitivityto 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 thegovernment or a private actor? Does, or should, the First Amendment prefer public over privateenforcement when it comes to regulating speech?

The second set of questions goes beyond the First Amendment. By contending that there issomething especially problematic about private litigation by a plaintiff who asserts no direct injury, thepublic/private distinction raises basic questions about the role of the private attorney general acrosssubstantive domains. On one hand, discrete dispute resolution has traditionally been viewed as the basicpurpose of private litigation. On the other, it has long been clear that litigation aimed primarily at28

resolving private disputes can have the secondary effect of advancing broader public values. But may29

privately initiated “public law litigation” seek only to advance broad public interests, even though the30

plaintiff has no direct stake in the defendant’s conduct and has suffered no direct injury requiringcompensation? Who, in short, may enforce public law?

I address both sets of questions in this Article. My argument can be distilled into two maincontentions. First, a categorical First Amendment preference for public over private enforcement cannot

20

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

532 U.S. 598 (2001). 1

Id. at 625-26 & n.4 (Ginsburg, J. dissenting) (collecting cases). 2

Id. at 604. 3

Id. at 605. 4

21

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 HumanResources, the Supreme Court rejected the catalyst theory for recovery of attorneys’ fees in civil rightsenforcement actions. In doing so, the Court dismissed concerns that plaintiffs with meritorious butexpensive claims would be discouraged from bringing suit, finding these concerns “entirely speculativeand unsupported by any empirical evidence.” This article presents original data from a national surveyof 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 classactions seeking injunctive relief against government actors, are the most likely to be negatively affectedby Buckhannon. In addition, our respondents report that Buckhannon encourages “strategiccapitulation,” makes settlement more difficult, and discourages attorneys from representing civil rightsplaintiffs. We argue that these far reaching effects herald a shift away from private rights enforcementand toward more government power, both to resist rights claims and to control the meaning of civilrights.

I. INTRODUCTION

In 2001, the Supreme Court issued an opinion that changed the American system of civil rightsenforcement. At issue in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Healthand Human Resources, was whether plaintiffs could qualify as “prevailing parties” entitled to attorneys’1

fees if they achieved their desired result because their lawsuit was a catalyst for voluntary change in thedefendant’s conduct. Although nearly every circuit court in the country had adopted the “catalysttheory” for fee recovery at the time that Buckhannon was decided, the Court rejected it. Instead, the2

Court held that to qualify as a “prevailing party” under the fee shifting statutes at issue the plaintiffs mustobtain a “material alteration of the legal relationship of the parties” such as a favorable judgment on themerits or a consent decree. Simply acting as a catalyst for the defendant’s change in position was not3

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 thedefendant voluntarily changes its conduct in response to a lawsuit. Fee shifting statutes support anextensive system of rights enforcement through “private attorneys general”: private litigants who bring

Ruckleshaus v. Sierra Club, 463 U.S. 680, 684 (1983); see also Marek v. Chesny, 4735

U.S. 1, 43-51 (Brennan, J. dissenting) (Appendix) (collecting federal statutory fee shiftingprovisions); Coulter v. Tennessee, 805 F.3d 146, 152-55 (1986) (Appendix A) (collecting federalstatutes authorizing the award of attorneys fees).

See, e.g., Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a6

Theory, 75 NOTRE DAME L. REV. 1011, 1021-23 (2000) (indicating that the United States rarelybrings enforcement actions under the Fair Labor Standard Act); Catherine R. Albiston, The Ruleof 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 actionsthat produced reported opinions involved government representation of plaintiffs); Paul Bursteinand 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 inemployment rights enforcement suits from 1965 to 1983 and concluding that most litigantsinvolved in employment actions are proceeding on their own). Data from the Administrative Officeof the United States Courts indicate that the federal government is seldom the plaintiff in civil rightsand other statutory enforcement actions that implicate the public interest. The following table wascomplied from the Report of the Administrative Office of the United States Courts on the JudicialB u s i n e s s o f t h e U n i t e d S t a t e s C o u r t s f o r 2 0 0 5 , T a b l e C - 2<http://www.uscourts.gov/judbus2005/appendices/c2.pdf> (last visited March 20, 2006).

Select Civil Cases Commenced in U.S. District Courts

Percent Brought

Type of Action US as Plaintiff Other Plaintiff Total Cases by US as Plaintiff

Civil Rights 534 35,562 36,096 1.5%

Prisoner Civil Rights 0 16,005 16,005 --

FLSA& LMRA 155 5558 5713 2.7%

22

enforcement actions that benefit not only the litigant but also the broader public interest. More than 150important statutory policies, including civil rights and environmental protections, provide statutory feesto encourage private litigants to mobilize a private right of action. Although federal and state5

governments also engage in some enforcement activities, private parties bring more than ninety percentof actions under these statutes. This private enforcement system decentralizes policy making, and helps6

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 empiricalevidence exists, however, about how Buckhannon has affected this system.

Answering this empirical question is important because fee shifting statutes are an integral partof civil rights enforcement. Fee shifting statutes are needed to encourage private enforcement becauseunlike other tort actions, many meritorious civil rights claims lack financial incentives sufficient to interestprivate attorneys. In some instances, the plaintiff seeks non-monetary relief, such as institutional reformor a change in policy, relief that would benefit many but will not pay a lawyer. In others, the plaintiff’smonetary damages are relatively small; for example, low-wage discrimination victims may haveeconomic damages that are far less then the cost of litigating their claim. Yet when successful, theseactions confer broad benefits. Injunctive relief and policy changes have effects far beyond the individuallitigant, and vigorous enforcement of civil rights serves important deterrence interests. Fee shiftingstatutes help civil rights claimants find lawyers willing to take on these often expensive and timeconsuming claims; without these statutes, access to the judicial process would be much more difficultto obtain.

Evans v. Jeff D., 475 U.S. 717, 745 (Brennan, J. dissenting) (discussing legislative history of fee7

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).

H.R. Rep. No. 94-1558, at 3 (1976). 8

S. Rep. No. 94-1011, at 2 (1976). 9

H.R. Rep. No. 94-1558, at 7 (1976). 10

H.R. Rep. No. 94-1558, at 7 (1976). 11

S. Rep. No. 94-1011, at 5 (1976) (emphasis added). 12

23

Congress enacted fee shifting statutes to encourage private enforcement of civil rights legislationby making it easier for victims of civil rights violations to find lawyers willing to represent them. Congressintended these statutes to “ensure that there would be lawyers available to plaintiffs who could nototherwise afford counsel, so that these plaintiffs could fulfill their role in the federal enforcementscheme 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 rightsplaintiffs could not afford legal counsel, and that the limited potential for compensation meant privateattorneys were refusing to take civil rights cases.public interest.” Congress explicitly noted that civil8

rights enforcement depends heavily on private enforcement, and that fee awards are essential “if privatecitizens are to have a meaningful opportunity to vindicate the important Congressional policies whichthese laws contain.” And, significantly, Congress seems to have specifically considered the prospect9

that defendants would voluntarily change their conduct in response to litigation. For example, thelegislative 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, thatno 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 onlyafter entry of a final judgment following a full trial on the merits.” Instead, “parties may be considered11

to have prevailed when they vindicate rights through a consent judgment or without formally obtainingrelief.”12

Because Buckhannon undermines incentives for bringing enforcement actions, it threatens toweaken this system of private enforcement of civil rights. The catalyst theory was an important part ofthis 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 judgmentsprovide the requested relief in order to moot the case and defeat the plaintiff’s fee petition. So, forexample, when a challenge to a policy prompts a government entity to change the policy, or when thegovernment grudgingly produces documents requested under the Freedom of Information Act only afterprotracted litigation, courts were reluctant to deny fee petitions simply because the defendant mootedthe case by providing the relief sought in the lawsuit. To do so might deter attorneys from taking suchactions in the future and encourage defendants to stall to drain their opponent’s resources. Such anapproach would be contrary to the intent behind fee shifting provisions: promoting vigorousenforcement of important public policies.

532 U.S. at 608-10. 13

Id. at 623. 14

Id. at 608-09. 15

Id. at 608. 16

24

Although the Court rejected the catalyst theory in Buckhannon, it did not back away from thepurposes and values behind the private attorney general enforcement system. Instead, the Courtemphasized how its decision would encourage settlement, taking a static, ex post approach focused onhow the catalyst theory affects incentives once an enforcement action is commenced. Rejecting thecatalyst theory, the majority reasoned, would minimize satellite litigation over fees and also encouragesettlement because defendants willing to provide relief voluntarily would not longer be deterred fromacting by the cost of the fee award. The dissent took a more dynamic, ex ante view, focusing on how13

rejecting the catalyst theory would likely affect the system of private enforcement as a whole. Doingaway with the catalyst theory, the dissent argued, would “impede access to court for the less well-heeled” and discourage plaintiffs with meritorious but expensive claims from bringing suit. In other14

words, encouraging settlement in the short run will mean little if over time, opportunities for defendantsto comply in response to a legal challenges decline because plaintiffs bring fewer enforcement actionsin the first place.

In response, the majority recognized the trade-off between encouraging settlement andpreserving access to the judicial process, but minimized these concerns through two empiricalassumptions. First, the majority claimed that strategic capitulation was unlikely to be much of aproblem. 15 Second, the majority dismissed the argument that restricting fee recovery will discourage15

plaintiffs with meritorious cases from filing suit, finding these “assertions” to be “entirely speculative andunsupported by any empirical evidence.”16

This article presents data that call into question the Court’s empirical assumptions. Based onthese data, we argue that Buckhannon has had a chilling effect on the very forms of public interestlitigation that Congress intended to encourage through fee shifting provisions. First, through an analysisof post-Buckhannon decisions, we illustrate how public interest litigation seeking broad social changeinvolves 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 asclass actions seeking injunctive relief against government actors, are the most likely to be affected byBuckhannon. We also present qualitative survey data that indicate that Buckhannon encouragesstrategic capitulation, makes settlement more difficult, and discourages both public interest organizationsand private counsel from taking on enforcement actions. These far reaching effects, we argue, heralda shift away from private right enforcement toward more government power to both resist rightsmandates 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 legaldevelopments before and after Buckhannon. Section II discusses how courts interpreted the role of feeshifting statutes in civil rights enforcement in the period before Buckhannon, the Buckhannon decisionitself, and the aftermath of Buckhannon for public interest litigation. Section III presents our surveymethodology, as well as our predictions and empirical data regarding how Buckhannon affects publicinterest organizations. Section IV offers some conclusions about the implications of Buckhannon forrights enforcement and government power.

See, e.g., Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. ILL. L. REV. 183176

(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).

Rubenfeld, supra note 176, at 148-152; Chemerinsky, supra note 176, at 540-41; Karlan, supra177

note 176, at 188-195.

See Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998); Brown v. Legal Foundation178

of Washington, 538 U.S. 216 (2002); Luban, supra note 168, at 227-236.

25

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 recentcases to illustrate a trend we see emerging in the enforcement actions that have been affected by thisdecision. These illustrative cases share at least three common features: First, these actions sought toenforce important constitutional or statutory rights, and therefore at least arguably further the publicpolicy interests behind the private attorney general doctrine. Second, these were claims againstgovernment defendants seeking a change in policy or a judicial mandate to government actors tocomply with the law; if there were no private enforcement in claims such as these, it would be hard toimagine government actors stepping into the breach. Third, the plaintiffs in these cases were limited toinjunctive relief or other equitable relief, and therefore could not rely on a claim for monetary relief toavoid mootness. Together, these cases present a set of structural conditions not uncommon in publicinterest 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 federallitigation already underway, questions about the dynamic effects of Buckhannon remain. Does limitingthe potential for fee recovery restrict access to the judicial process? Has Buckhannon stifled enforcementactions by reducing the pool of lawyers willing to take on these cases? We begin to answer thesequestions by examining empirically how Buckhannon has affected public interest organizations. For howmany public interest organizations has Buckhannon made a difference? What organizationalcharacteristics predict whether Buckhannon impedes an organization’s ability to pursue its goals? Howhave organizations been affected by this decision? What are the implications for social change litigationbrought by private attorneys general? We turn to these empirical questions in the remaining sections ofthis paper by drawing on data from a national survey of public interest organizations in the UnitedStates.

[IV]. CONCLUSION

What conclusions can we draw from these data about the implications of Buckhannon for thefederal system of civil rights enforcement? One possible interpretation is that Buckhannon is part of alarger trend directed at undermining the ability of advocates to harness the power of courts for socialchange. Along these lines, some commentators argue that a procedural attack on civil rights isunderway. This attack includes doctrinal developments regarding sovereign immunity, legal176 177

challenges to the constitutionality of IOLTA funds, legislative restrictions on the activities of legal178

See William P. Quigley, The Demise of Law Reform and the Triumph of Legal Aid: Congress and179

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.

Luban, supra note 176, at 236-240. 180

Karlan, supra note 176, at 205-208; Luban, supra note 176, at 243-45; Chemerinsky, supra note181

176, at 547.

Margaret Graham Tebo, Fee Shifting Fallout, ABA JOURNAL, July 2003, at 54. 182

Joel F. Handler, Betsy Ginsberg, & Arthur Snow, The Public Interest Law Industry, in PUBLIC183

INTEREST LAW: AN ECONOMIC AND INSTITUTIONAL ANALYSIS 42, 44-45 (Burton A. Weisbrod, Joel

F. Handler, & Neil K. Komesar, eds. 1978).

Nan Aron, LIBERTY AND JUSTICE FOR ALL 14-21 (1989) (discussing the Reagan184

Administration campaign to defund progressive public interest activities).

See Hans J. Hacker, THE CULTURE OF CONSERVATIVE CHRISTIAN LITIGATION (Rowman185

& Littlefield 2005) (discussing the role of conservative Christian public interest law firms in religious freedom

26

services lawyers, and political campaigns to limit the ability of law school clinics to represent clients179

who challenge established interests. What these developments have in common is that they are180

collateral, not frontal, attacks on civil rights. They do not directly attempt to challenge the normativepublic policies that support civil rights protections. Instead, they rely on technical legal strategies toerode 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 publicopposition or protest. Buckhannon fits this pattern. As one commentator put it, Buckhannon is like181

the neutron bomb: it leaves the infrastructure still standing but kills the heart of statutes that rely on feeshifting to encourage enforcement. 182

For public interest organizations, this interpretation is likely to ring true. Many public interestorganizations that emerged in the 1960s and 1970s were modeled after progressive civil rightsorganizations that viewed the courts as the only access to policy making for disenfranchised groups orunpopular causes. The substantive successes of these organizations have made them targets for183

political campaigns to undermine their financial support. Buckhannon seems like one more184

installment in this campaign, and to be sure, to the extent that progressive movements rely on impactlitigation strategies more than conservative movements do, the procedural attack on civil rightsenforcement is likely to have a particular political valence.

We believe that this interpretation is definitely part of the story, but we also think Buckhannonhas even broader implications. We note that our data indicate that at least among public interestorganizations, there is no statistical difference between progressive and conservative organizations intheir 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 clearlyweighs 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 oneconsiders that conservative public interest organizations have been very successful in recent years inadopting impact litigation as a social change strategy. For example, conservative organizations haverepresented plaintiffs before the Supreme Court in religious freedom cases seeking access to publicfacilities for religious groups, and in challenges seeking to prohibit implementation of affirmative185

litigation).

See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (Mountain States186

Legal Foundation); Grutter v. Bollinger, 539 U.S. 306 (2003) (Center for Individual Rights); seealso Jean Stefancic & Richard Delgado, NO MERCY: HOW CONSERVATIVE THINK TANKSAND FOUNDATIONS CHANGED AMERICA’S SOCIAL AGENDA 47-51 (Temple UniversityPress 1996) (discussing the role of conservative public interest organizations in challenges toaffirmative action).

27

action programs. 186 These cases, which seek policy changes or injunctive relief, are the kind of186

actions that are now structurally vulnerable to Buckhannon.

To us, Buckhannon’s broad effects across the political spectrum of right litigation indicate thatthe 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 poweraway from private enforcement of rights and toward government power, both to resist civil rightsmandates and to control the enforcement, and ultimately the meaning, of these rights. Even beforeBuckhannon, 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 religiousgroups all will be harder to mount because Buckhannon renders fee recovery so uncertain in theseactions. In addition, Buckhannon is likely to change the state’s litigation strategy in these cases becauseit removes a significant incentive for early settlement. Instead, states may feel free to allow litigation todrag on and on, confident that strategic capitulation will protect it against an adverse judgment and feeaward. In short, the symbiosis between Buckhannon and the sovereign immunity doctrine leaves littleincentive to bring equitable claims against states: why engage in protracted litigation with scant prospectfor 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, enforcementdecisions for a variety of statutes, not limited to civil rights statutes, increasingly will fall to governmentactors such as underfunded administrative agencies. As a result, at the very least these discretionarydecisions will be driven by a different set of incentives than those of the private attorney general. Thedecision 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, inwhich state and federal interests would align against enforcing rights that might nevertheless be in thepublic interest.

Even apart from shifting structure of incentives for enforcement, the sheer magnitude of the taskis daunting. If Buckhannon reduces private enforcement efforts, and our data suggest that it will, it wouldrequire a significant increase in government enforcement to replace the more diffuse and decentralizedsystem of private attorneys general. It seems unlikely that there will be an infusion of funds into state andfederal enforcement to fill the breach, particularly given other governmental priorities and likely politicalopposition from repeat players. Thus, Buckhannon may represent a much broader deregulatory judicialpolicy despite its guise as a mundane application of mere “statutory interpretation”. And, even if aninfusion of funds did occur, such a change would have the practical effect of shifting the costs ofenforcement to taxpayers and away from defendants who failed to comply with the law, because, ofcourse, government enforcement actions can be “Buckhannoned” too. In short, such a retooling ofrights enforcement would lose many of the structural advantages of private attorneys general, and givesignificantly more power to governmental actors to decide whether to enforce rights, and to choosewhich rights are worth enforcing at all.

28

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

21 Harvard Journal of Law & Public Policy 719 (Summer, 1998) 187

University of Pennsylvania Law School, Public Law and Legal Theory Research Paper Series,188

Research Paper No.54, September 2004.

29

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 anendorsement nor do they prohibit it. Instead, the matter is left to myjudgment. My decision, after considering all the material you havesubmitted, is that it would not be in the best interest of marine safety orsecurity to initiate the endorsement you applied for.”

That is precisely the point of my litigation these past for years. Whether or not firearmspossession 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 andintrastate travel.

I have a First and Seventh Amendment right to petition the government for redress ofgrievances to prove Capt. Brusseau’s judgment is not only wrong but that he violated his Oath ofOffice to support and defend the Constitution of the United States (including the Bill of Rights) becausehe could not rely on the U.S. Code or the Code of Federal Regulations. In that situation he must relyon 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 SHY: THE SECOND AMENDMENT AS AN

“UNDERENFORCED CONSTITUTIONAL NORM”187

Citing Matthew Adler’s conclusion in POPULAR CONSTITUTIONALISM AND THE RULE OF RECOGNITION:WHOSE PRACTICES GROUND U.S. LAW?188

The law within each legal system is a function of the practices of some social group. Inshort, law is a kind of socially grounded norm. This is a point of consensus for modernjurisprudents in the Anglo-American tradition: not just Hart and his followers in thepositivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Dworkin, who argues that law necessarily synthesizes moral considerationswith social facts.

But which group’s practices ground each legal system? In particular, which group’spractices undergird U.S. law? Positivists since Hart have universally pointed to eitherofficials or judges as the “recognitional community” (my term): the group such that itsrules, conventions, cooperative activities, or practices in some other sense are the socialfacts from which the law of a given legal system derives. So Hart and all other positivistswould identify either U.S. officials or U.S. judges as the recognitional community forU.S. law.

Consider, for example, Ken Himma’s assertion that “[nonjudicial] officials have a consistent189

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.

See H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994)190

See Ronald Dworkin, LAW ’S EMPIRE 255-56 (1986).191

See Joseph Raz, THE CONCEPT OF A LEGAL SYSTEM : AN INTRODUCTION TO THE THEORY OF LEGAL192

SYSTEM 190 (2d ed. 1980).

30

This Article has grappled with the tension between the positivist’s official- or judge-centered 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 toclaim 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 associativeduties for the citizenry as a whole, implies deep popular constitutionalism. Here thereis a disagreement, hitherto unnoticed, between Dworkin and the positivists.

My solution to this disagreement – to the debate between deep popular constitutionalistsand deep official or judicial supremacists – is to dissolve it by providing a group-relativeaccount of law. In arguing for that account, I have shown that throughout U.S. historya plurality of groups, both official and citizen groups, have actively sought to advanceconceptions of U.S. constitutional law. Further, I have argued that “law,” taken eitheras an explanatory construct or as a normative construct, is best specified along group-relative lines. Finally, I have explored the implications of the group-relative account forU.S. constitutional theory.

This account may be wrong, even wrong-headed. But whatever the merits of thegroup-relative account of law, I hope this Article has accomplished one thing: to put theproblem of the recognitional community on the agenda of constitutional theory.Analytical jurisprudence is not easy reading, and for those steeped in our constitutionalhistory some of the literature may seem naïve in underplaying how contestedfundamental questions of U.S. law have been. Still, this is a literature that189

constitutional scholars ignore at their peril. Works such as Hart’s The Concept of Law,190

Dworkin’s Law’s Empire, and Raz’s The Concept of a Legal System try to191 192

determine, with the greatest intensity and rigor, just what law is – in particular, just howthe law governing some society connects to other facts about that society, or aboutsome subset within it. At some point, surely, that connection is one that the intellectuallyserious constitutionalist will need to try to understand.

31

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 anindividual pointing a handgun, with language which the Coast Guardregarded as threatening, and another showing holes in a target andblood 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

32

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 thanmany of us realize who live in countries where freedom of expressionis taken for granted. The leaders of totalitarian nations understand thisvery well. The proof is that words are precisely the action for whichdissidents in those countries are being persecuted.” President Carter.Address, Notre Dame University, 22 May 1977.

What the advocates of conformity and carefully regulated dissidentopinion forget is that a free society cannot be a heavily controlledsociety. In their zeal to suppress the real and imagined enemies of thestatus quo, the intelligence agencies and their private allies tend to leavedemocracy behind and move in the direction of the totalitarian societiesthey abhor. Donna A. Demac, LIBERTY DENIED: THE CURRENT RISE OF

CENSORSHIP IN AMERICA, 1990.

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Denial of the political offender’s existence and legitimacy has forcedextremism where conciliation would have been more productive.Labeled and hunted as common criminals and denied the opportunityfor an orderly public airing of their grievances, political dissidents haveoften 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 theprograms of our two major parties. History has amply proved the virtueof political activity by minority dissident groups, who innumerable timeshave been the vanguard of democratic thought and whose programswere 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 inconsequence, to upset existing convictions; that is precisely its purposeand its justification. Learned Hand (1872-1961), Judge, U. S. Court ofAppeals.

I believe that the community is already in process of dissolution whereeach man begins to eye his neighbor as a possible enemy, wherenon-conformity with the accepted creed, political as well as religious, isa mark of disaffection; where denunciation, without specification orbacking, takes the place of evidence, where orthodoxy chokes freedomof dissent; where faith in the eventual supremacy of reason has becomeso timid that we dare not enter our convictions in the open lists, to winor 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 toremove the grievances. An unwillingness to discuss these mattersproduces only dissatisfaction and gives comfort to the extreme elementsin our country which endeavor to stir up disturbances in order toprovoke Governments to embark upon a course of retaliation andrepression. 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 ofbeing interviewed and investigated has a coercive influence. As soon asa man is under cross-examination, he may become paralyzed by theprocedure and find himself confessing to deeds he never did. In acountry where the urge to investigate spreads, suspicion and insecuritygrow. Joost A. Merloo, THE RAPE OF THE MIND, 1956.

There is a principle which is a bar against all information, which is aproof against all argument, and which cannot fail to keep a man ineverlasting ignorance – that principle is condemnation beforeinvestigation. Herbert Spencer (1820-1903), SOCIAL STATICS, 1850.

There is no more fundamental axiom of American freedom than thefamiliar statement: In a free country we punish men for the crimes theycommit but never for the opinions they have…. [This act] would put the

34

United States in the thought control business. It could give governmentofficials vast powers to harass all of our citizens in the exercise of theirrights of free speech. Harry S. Truman (1884-1972), U. S. President,Message, VETO OF THE MCCARRAN ACT, 22 September 1950.

Without deviation, without exception, without any ifs, buts, orwhereases, freedom of speech means that you shall not do somethingto people either for the views they express, or the words they speak orwrite. 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. Freedomto publish is guaranteed by the constitution but freedom to continue toprevent 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 FirstAmendment. It is part of the right of free speech. It embraces freedomof the press. Hugo L. Black (1886-1971), U. S. Supreme Court Justice,1961.

Fear of serious injury cannot alone justify suppression of free speechand assembly. Men feared witches and burnt women. It is the functionof 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 appliedis 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).

35

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 number110231 re 15 Notice of Appeal, filed by DONHAMRICK (nmr).

36

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. 02-1435-ESH 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, Affirmingdismissal of RICO claims but removing “With Prejudice” stigma and Remanding onSecond Amendment grounds.

Boilerplate affirmation of Judge Walton’s Dismissal but remanded my case on SecondAmendment 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.

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

39

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 REGULATIONSTITLE 41 -- PUBLIC CONTRACTS AND PROPERTY MANAGEMENT

CHAPTER 102 -- FEDERAL MANAGEMENT REGULATION

PART 102-74 -- FACILITY MANAGEMENT -- 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 disorderlyconduct 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 theproperty in a timely manner.

40

DISTRICT OF COLUMBIA CODEDIVISION 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 privatedwelling, building, or other property, or part of such dwelling, building, or other property, against thewill 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 thelawful 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 Jailfor 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 identificationsbetween issues and personalities was made up for with negativeconnections. A time-honored rule of effective persuasion is that it maybe more profitable to attack the arguer than it is to attack the

41

argument.[FN82] This is the fallacy of argumentum ad hominem, or“argument directed against the man.”[FN83] Few fallacies are morepotent or more often employed.

- - -

FN82: The classic tale, presumably apocryphal, involves an Englishbarrister who had neglected to prepare for trial, counting instead on asolicitor to investigate and prepare the case. When the barrister arrivedon the morning of trial, the solicitor handed him the trial brief. Surprisedby its thinness, the barrister opened it and found only a note reading:"No case; abuse the plaintiff's attorney." M. COPI, INTRODUCTION TOLOGIC 52, at 60 (2d ed. 1961);

FN83: See COPI, supra note 5, at 54 (discussing and defining adhominem 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 byjudicial immunity.”

This is perjury! The truth is:

Mireles v. Waco, 502 U.S. 9 (1991) Held: “Judicial immunity is animmunity from suit, not just from ultimate assessment of damages, andit can be overcome only if a judge’s actions are nonjudicial orwere 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

42

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. CODETITLE 18 - CRIMES AND CRIMINAL PROCEDURE

PART I - CRIMESCHAPTER 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 matterwithin the jurisdiction of the executive, legislative, or judicial branch ofthe Government of the United States, knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, ordevice a material fact;

(2) makes any materially false, fictitious, or fraudulent statementor representation; or

(3) makes or uses any false writing or document knowing thesame to contain any materially false, fictitious, or fraudulentstatement or entry;

shall be fined under this title or imprisoned not more than 5 years, orboth.

(b) Subsection (a) does not apply to a party to a judicialproceeding, or that party's counsel, for statements,representations, writings or documents submitted by suchparty 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 THE TRUTH: THE INFLUENCE OF MARVIN FRANKEL'S PROPOSAL FOR REFORMING THE

ADVERSARY SYSTEM, 35 Seton Hall L. Rev. 613 (2005):

Introduction

On December 16, 1974, Judge Marvin Frankel told an audience of theAssociation of the Bar of the City of New York that "our adversarysystem rates truth too low among the values that institutions of justiceare meant to serve." n1 The judge had become frustrated with the"trickery and obfuscation" n2 that he had witnessed during his nine

43

years on the United States District Court for the Southern District ofNew York. He suggested that the adversary ideal should be modified tomake truth "the paramount objective." n3 To implement this suggestion,Frankel proposed tentative amendments to the American BarAssociation's (ABA) Code of Professional Responsibility.

Frankel's amendments n4 would have required a lawyer to (1) discloseall relevant evidence and prospective witnesses, even when the lawyerdoes not intend to offer that evidence and those witnesses; (2) preventor report any untrue statement by a client or witness, or [*614] anyomission of material fact, that makes other statements misleading; n5and (3) at trial, examine witnesses "with a purpose and design to elicitthe whole truth, including particularly supplementary and qualifyingmatters 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 alawyer's duty to the client and to the court. n7 Nonetheless, his viewsbecame such an important reference point in modern debate over theadversary system that in 1996, the article version of his speech wasranked the seventy-sixth most cited law review article of all time. n8Marvin Frankel, who died on March 3, 2002, n9 came to epitomizeconcern with the value of truth in the legal system and was for a timethe country's most prominent critic of the adversary system. n10

This Article explores the influence of Frankel's proposals both ondiscourse about the legal system as well as on actual legal practice. Inthe academy, as Part I of this Article will show, Frankel's specificproposals never gained wide acceptance. The most heated debateconcerning the duty of candor n11 has involved the question of whether[*615] a criminal defense lawyer has a duty to disclose a client's perjuryor other wrongdoing. n12 Frankel's proposals were far more radicalthan the already controversial requirement that a lawyer should informthe court of his client's wrongdoing, and his proposals wereovershadowed by discussion of that more conservative proposal. n13Frankel, however, succeeded in one respect. His specific proposals weremeant to be tentative; n14 his larger purpose was to inspire the legalprofession to talk more about the value of truth in an adversary systemand about ways to promote that value. In this he succeeded, at least inthe academy.

He was less successful in producing change in adversarial practice. AsPart II will show, even though Frankel was a member of the commissionthat drafted the American Bar Association's 1983 Model Rules ofProfessional Conduct, and early drafts of the Rules essentially reflectedhis position, his views were gradually washed out of successive draftsuntil, with minor exceptions, the final version contained no trace ofthem. n15

Part III will demonstrate, however, that a disclosure requirement similarto that proposed by Frankel landed in the Rules of Professional Conductthat New Jersey adopted in 1984. n16 Until now, New Jersey's

44

extraordinary rule has not been literally enforced. Nonetheless, the NewJersey Supreme Court and New Jersey's disciplinary bodies appear tohave become increasingly interested in recent years in using the rule toremind lawyers about the importance of candor. In a case decided inJune 2004, the New Jersey Supreme Court presented its most extensivediscussion of the rule to date and, for the first time ever, cited the veryFrankel proposal that appears to be the rule's ancestor. n17 Thirty yearsafter the publication of Frankel's article, this development raises thepossibility that attorneys practicing in New Jersey will be held to anoticeably higher standard [*616] of candor than attorneys practicingin other jurisdictions.

The final section of this Article draws lessons from the experience ofNew Jersey and concludes that Frankel-type reforms are unlikely tosucceed without pervasive changes in the attitudes and habits of thelegal profession. n18

Frankel's ideas appear also to be at least partly responsible for anotherdevelopment, but it is one beyond the scope of this Article. In 1993, theFederal Rules of Civil Procedure (FRCP) were amended to allow districtcourts to opt in to a regime requiring pretrial disclosure of all materialthat each party plans to use in support of its own claims and defenses.n19 In 2000, the FRCP were amended again to make that regimemandatory. n20 These amendments are traceable to the ideasexpressed in two law review articles written by Wayne Brazil andWilliam Schwarzer respectively, n21 who were both clearly influencedby Frankel. n22

While these amendments to the FRCP help to reduce the adversarialcharacter of civil discovery, they do not actually make lawyersresponsible for the truth. The amended rules merely require that a partydisclose what the adversary would ultimately learn anyway - namely,how the party intends to support its own claims and defenses. The ruledoes not impose, as Frankel's proposals would have, an affirmativeobligation to disclose unfavorable material. n23 [*617] Because thesediscovery rules do not impose such a duty, and the subject of pretrialdisclosure has been extensively treated elsewhere, n24 this Article doesnot specifically discuss this topic. Of course, discovery battles are amajor aspect of the adversary character of civil lawsuits, but thediscussion in this Article is limited to ethics standards.

45

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 WereNot, 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 theUnited 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 rightto trial. I can prove Mandamus and the Courts and Justice Department are terrified that I can proveMandamus.

VI. The Court Lacks Subject Matter Jurisdiction Over Any Constitutional Claims.

Again, Defense Counsel confuses Bivens with RICO.

46

VII. Should the Complaint be Construed to Assert Claims Against the Defendants In TheirIndividual 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,

47

VIII. Any Claims Not Dismissed Should Be Transferred to the U.S. District Court for theDistrict 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.

48

C. TREATIES

INTERNATIONAL BILL OF HUMAN RIGHTS

DECLARATIONS & COVENANTSSIGNED BY

U.S.RATIFIED BY

U.S.

UNIVERSAL DECLARATION OF HUMAN RIGHTS

! Adopted: December 10, 1948 by 48 Member States (including U.S.).

Full text in Appendix 1.

(Adopted)10 Dec. 1948

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS ! 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 ____________________


Oct. 5, 1977

No

(Currently inForce)

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

! 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.


! Status: Signatories: 67, Parties: 160, as of ______________________


Oct. 5, 1977

June 8, 1992

(Currently inForce)

OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS


! Entry into force: March 23, 1976

! Last update: November 1, 2006.

! Status: Signatories: 34 , Parties: 108 , as of ___________________


No

No

(Currently inForce)

SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL

COVENANT ON CIVIL AND POLITICAL RIGHTS, AIMING AT THE

ABOLITION OF THE DEATH PENALTY


! Registration: July 11, 1991, No. 14668.

! Entry into force: July 11, 1991


! Status: Signatories: 34, Parties: 59, as of _____________________


No

No

(Currently inForce)

49

And in addition to:

UNITED NATIONS CHARTER & OTHER INTERNATIONAL

HUMAN RIGHTS CONVENTIONS AND DECLARATIONS

DECLARATIONS & CONVENTIONSSIGNED BY

U.S.RATIFIED BY

U.S.

UNITED NATIONS CHARTER

Full text in Appendix 6. of Volume 4 Amended

Complaint

CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE

CRIME OF GENOCIDE


! Registration: 12 January 1951, No. 1021.

! Entry into force: January12, 1951

! Last update:

! Status: Signatories: 41, Parties: 133, as of ___________.


Complaint

Dec.11, 1948 Nov. 25, 1988

VIENNA CONVENTION ON THE LAW OF TREATIES

! 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 ___________.


Complaint

No No

VIENNA CONVENTION ON SUCCESSION OF STATES IN

RESPECT OF TREATIES.

! Adopted: Vienna, August 21, 1978

! Registration:

! Entry into Force: November 6, 1996

! Last update:



Complaint

No No

VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN

STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN

INTERNATIONAL ORGANIZATIONS.

! Adopted: Vienna, March 21, 1986

! Registration:

! Entry into force:

! Last update:



Complaint


U.S.RATIFIED BY

U.S.

50

NEW!

NEW!

U.N. CONVENTION AGAINST CORRUPTION

! Adopted: October 31, 2003

! Registration:

! Entry into Force: December 14, 2005

! Last update:


! RUD: U.N. is waiting for the U.S. to submit their

Reservations, Understandings & Declarations (RUD).


Complaint

Oct. 30, 2006

MARITIME LABOUR CONVENTION

! 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:



Complaint

Not Yet

(Still new)

Not Yet

(Still new)

DECLARATION OF BASIC PRINCIPLES OF JUSTICE FOR

VICTIMS OF CRIME AND ABUSE OF POWER ADOPTED by

General Assembly resolution 40/34 of 29 November 1985


Complaint

DECLARATION ON THE RIGHT AND RESPONSIBILITY OF

INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO

PROMOTE AND PROTECT UNIVERSALLY RECOGNIZED HUMAN

RIGHTS AND FUNDAMENTAL FREEDOMS, General Assembly

resolution 53/144, A/RES/53/144, 8 March 1999


Complaint

THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES

OF MAN (1948)


Complaint


U.S.RATIFIED BY

U.S.

51

AMERICAN CONVENTION ON HUMAN RIGHTS: PACT OF SAN

JOSE, COSTA RICA”

! Adopted: San Jose, Costa Rica, Nov. 22, 1969

! Registration:

! Entry into Force: July 18, 1978

! UN Registration: August 27, 1979 No. 17955

! Last update:



Complaint

June 1, 1977 No

THE ADDITIONAL PROTOCOL TO THE AMERICAN

CONVENTION ON HUMAN RIGHTS IN THE AREA OF

ECONOMIC, SOCIAL AND CULTURAL RIGHTS (Protocolof San Salvador)Full text in Appendix 17. of Volume 4 Amended

Complaint

CONVENTION ON THE HIGH SEAS

! Adopted: Geneva, 29 April 1958

! Registration:

! Entry into force:

! Last update:



Complaint

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

! Adopted: Montego Bay, 10 December 1982

! Registration:

! Entry into force:

! Last update:



Complaint

AGREEMENT RELATING TO THE IMPLEMENTATION OF PART XI

OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE

SEA OF 10 DECEMBER 1982.

! Adopted: New York, 28 July 1994

! Registration:

! Entry into force:

! Last update:



Complaint


U.S.RATIFIED BY

U.S.

52

AGREEMENT FOR THE IMPLEMENTATION OF THE PROVISIONS

OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE

SEA OF 10 DECEMBER 1982 RELATING TO THE

CONSERVATION AND MANAGEMENT OF STRADDLING FISH

STOCKS AND H IGHLY M IGRATORY FISH STOCKS.

! Adopted: New York, 4 August 1995

! Registration:

! Entry into force:

! Last update:



Complaint

AGREEMENT ON THE PRIVILEGES AND IMMUNITIES OF THE

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA.

! Adopted: New York, 23 May 1997

! Registration:

! Entry into force:

! Last update:



Complaint

PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE

INTERNATIONAL SEABED AUTHORITY.

! Adopted: Kingston, 27 March 1998

! Registration:

! Entry into force:

! Last update:



Complaint

Bach v. Pataki, 2005 WL 105265 (2d. Cir). I have provided informal advice to David Bach and193

his attorneys, David C. Frederick and Kevin J. Miller, and I am indebted to their research and insights about

this case.

Id. 194

Id. 195

Id. 196

Id. 197

Bach, 289 F. Supp. 2d at 221-22; N.Y. Penal Law § 400.00.3(a) (Consol. 2004). 198

N.Y. Penal Law § 265.02(4). 199

53

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 PaperSeries 05-34

HAVE GUN, CAN’T TRAVEL:THE RIGHT TO ARMS UNDER THE

PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV

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 UniversitySchool of Law. For helpful comments, thanks to Dave Bach, Steve Gilles, and Kevin Miller. Financialassistance 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, anexperienced firearms instructor, and an attorney. He is now employed by the Department of Defense,193

where he holds a Top Secret security clearance. This model citizen resides in the Commonwealth of194

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 orderto visit his parents. This lengthy journey goes through several high-crime areas in New York, and he196

wants to carry a defensive firearm on his person, either openly or concealed, in case of a criminal assaultduring one of these trips. New York issues licenses to carry firearms to its own citizens who meet197

certain statutory criteria, and to nonresidents who have their principal place of employment or businessin the state, but not to visitors like Bach. If he carried his personal weapon with him, he would be198

committing a felony.199

Bach, 289 F. Supp. 2d at 219. 200

Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005); U.S. CONST. art. IV, § 2, cl. 1. 201

I will not discuss the issues raised by Bach’s Second Amendment claim. My focus here on the202

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

U.S. CONST. art. IV, § 2, cl. 1. For purposes of this provision, residency and citizenship are203

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).

See, e.g., Austin, 420 U.S. at 660. 204

See, e.g., Gary J. Simson, D ISCRIMINATION AGAINST NONRESIDENTS AND THE PRIVILEGES AND205

IMMUNITIES CLAUSE OF ARTICLE IV, 128 U. PA. L. Rev. 379, 381 (1979).

U.S. CONST. art. IV, § 2, cl. 1. 206

Simson, supra note 14, at 384. 207

See, e.g., id. at 383-84. 208

Arts. of Confederation art. IV.209

54

Believing this discriminatory treatment violates his constitutional rights, Bach filed an action fordeclaratory and injunctive relief in federal district court. The Second Circuit has now rejected his200

claims that New York’s statute violates the Second Amendment and the Privileges and ImmunitiesClause of Article IV. In this brief essay, I will argue that Bach’s Privileges and Immunities claim is201

valid, and that the nature of the claim throws an interesting light on a provision of the Constitutionwhose 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 allPrivileges and Immunities of Citizens in the several States.” Often called the Comity Clause, this203 204

provision has generally been interpreted to require every state to refrain from invidious discriminationagainst citizens of other states. For most modern readers, that interpretation probably does not leap205

immediately to mind from the bare words of the Constitution. It is, however, consistent with what we206

know about the origin and purpose of the clause, which was barely discussed at the ConstitutionalConvention. Charles Pinckney apparently drafted the language, and he mentioned in a207

contemporaneous pamphlet that the provision was modeled on Article IV of the Articles ofConfederation. The Articles provided: 208

The better to secure and perpetuate mutual friendship and intercourse among thepeople 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 allprivileges and immunities of free citizens in the several States; and the people of eachState shall have free ingress and regress to and from any other State, and shall enjoytherein all the privileges of trade and commerce, subject to the same duties, impositions,and restrictions as the inhabitants thereof respectively. 209

Simson, supra note 13, at 383-84. 210

U.S. CONST. art. IV, § 2, cl. 1.211

Id.212

Id.213

Id.214

See, e.g., Hicklin, 437 U.S. at 518; Toomer v. Witsell, 334 U.S. 385 (1948). 215

See generally, Brannon P. Denning, WHY THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV216

CANNOT REPLACE THE DORMANT CLAUSE DOCTRINE, 88 MINN. L. REV. 384 (2003).

Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 6 (1st Cir. 1992).217

See, e.g., Denning, supra note 24, at 393-94. 218

For a useful summary of the main differences between dormant commerce doctrine and the219

Privileges and Immunities Clause, see Denning, supra note 25. There are some forms 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

Assuming, as Pinckney suggested, that our Privileges and Immunities Clause was meant toconvey more concisely the substance of this parallel provision in the Articles, four significant210

consequences follow. First, the purpose of the Clause is to foster comity among the states, rather thanto secure such other conceivable aims as economic growth or efficiency. Second, “the privileges of211

trade and commerce,” which are given special emphasis in the Articles, do not exhaust the privilegesand immunities covered by the Privileges and Immunities Clause. Third, the right to travel freely212

among the states is one of the rights protected by the Clause. Fourth, the states are left free to define213

the rights of their own citizens as they see fit, at least with respect to commercial privileges andpresumably with respect to others as well; in other words, the Privileges and Immunities Clause is anantidiscrimination 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 isthe area in which state governments have the most obvious incentives to grant unjust preferences totheir own citizens. These same incentives, and the corresponding interests of those who aredisadvantaged by such preferences, make it easy to see why many cases decided under the Privilegesand Immunities Clause have involved commercial regulations. Notwithstanding these incentives,215

however, case law interpreting the Privileges and Immunities Clause is sparse. This is not necessarily theresult of self-restraint by state governments. Rather, a great deal of litigation that might have arisenunder the Privileges and Immunities Clause has been decided instead under the judicially inventeddormant commerce clause doctrine. This doctrine, which purports to be derived from the Interstate216

Commerce Clause, forbids many forms of state discrimination against interstate commerce. Much217

of this discrimination involves preferences for a state’s own citizens, and many regulations that areinvalid under the dormant commerce doctrine would no doubt also violate the Privileges andImmunities Clause. The dormant commerce protections for free trade, however, generally have a218

broader sweep, and they have generated a far richer body of case law.219

Clause requires city to provide adequate justification for discriminating against nonresidents in contracts for

public works projects).

U.S. CONST. art. IV, § 2, cl. 1. 220

Doe v. Bolton, 410 U.S. 179, 200 (1973). 221

Nelson v. Geringer, 295 F.3d 1082. 1090 (10th Cir. 2002). 222

See, e.g., Sup. Ct. of N.H. v. Piper, 470 U.S. 274, 281 (1985). 223

See Corfield v. Coryell, 6 F. Cas. 546 (C.C. E.D. Pa. 18230 (No. 3230). 224

Id. 225

56

Although the dormant commerce doctrine forbids more forms of commercial discrimination thanthe Privileges and Immunities Clause, the Article IV prohibition is broader in a different way, for it is notlimited to economic regulations. Thus, for example, states are forbidden to impose residence220

requirements on outsiders seeking medical services within their borders (including elective proceduressuch as abortions), or on those seeking senior positions in the state’s National Guard. Similarly,221 222

the noncommercial aspects of giving access to out-of-state attorneys have been stressed in casesinvalidating residence requirements for the practice of law.223

B. Judicial Interpretation

Although the purpose and general nature of the Privileges and Immunities Clause have beenrelatively noncontroversial, it has not proved easy to create a coherent legal doctrine that can decideconcrete cases. The first significant discussion of the provision came from Justice Bushrod Washington,sitting as a circuit justice. In Corfield v. Coryell, he upheld a New Jersey law forbidding citizens of224 225

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 nohesitation in confining these expressions to those privileges and immunities which are,in their nature, fundamental; which belong, of right, to the citizens of all freegovernments; and which have, at all times, been enjoyed by the citizens of the severalstates which compose this Union, from the time of their becoming free, independent,and sovereign. What these fundamental principles are, it would perhaps be moretedious than difficult to enumerate. They may, however, be all comprehended underthe following general heads: Protection by the government; the enjoyment of life andliberty, with the right to acquire and possess property of every kind, and to pursue andobtain happiness and safety; subject nevertheless to such restraints as the governmentmay justly prescribe for the general good of the whole. The right of a citizen of one stateto 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; toinstitute and maintain actions of any kind in the courts of the state; to take, hold anddispose of property, either real or personal; and an exemption from higher taxes orimpositions than are paid by the other citizens of the state; may be mentioned as someof the particular privileges and immunities of citizens, which are clearly embraced by thegeneral 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 thestate in which it is to be exercised. These, and many others which might be mentioned,

Id. at 551-52. 226

Id. at 551. 227

Id. at 552. 228

Corfield, 6 F. Cas. at 552. 229

Id. 230

Id. 231

57

are, strictly speaking, privileges and immunities, and the enjoyment of them by thecitizens of each state, in every other state, was manifestly calculated (to use theexpressions of the preamble of the corresponding provision in the old articles ofconfederation) “the better to secure and perpetuate mutual friendship and intercourseamong the people of the different states of the Union.” But we cannot accede to theproposition which was insisted on by the counsel, that, under this provision of theconstitution, the citizens of the several states are permitted to participate in all the rightswhich belong exclusively to the citizens of any other particular state, merely upon theground that they are enjoyed by those citizens; much less, that in regulating the use ofthe common property of the citizens of such state, the legislature is bound to extend tothe citizens of all the other states the same advantages as are secured to their owncitizens. A several fishery, either as the right to it respects running fish, or such as arestationary, such as oysters, clams, and the like, is as much the property of the individualto whom it belongs, as dry land, or land covered by water; and is equally protected bythe 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 offishing belongs to all the citizens or subjects of the state. It is the property of all; to beenjoyed by them in subordination to the laws which regulate its use. They may beconsidered as tenants in common of this property; and they are so exclusively entitledto the use of it, that it cannot be enjoyed by others without the tacit consent, or theexpress 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, forexample, says that the Privileges and Immunities Clause protects only “fundamental” rights, withoutexplaining 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 isamong the most obvious examples of a right that one would not expect states to make equally availableto citizens and non-citizens. The holding in the case, moreover, is in considerable tension with the228

stated theory. Commercial fishing appears to be a “fundamental” right (subsumed under “the right229

to acquire and possess property of every kind”) that Washington was unwilling to protect in this caseonly because the fishery in question was the “property” of the New Jersey citizenry. The courts of230

New Jersey, however, were even more obviously “owned” by the state’s citizens—who presumably usedtax 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

See, e.g., Saenz v. Roe, 526 U.S. 489, 501 n.14 (1999); McKnett v. St. Louis & S.F. Ry. Co.,232

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).

E.g., Toomer, 334 U.S. 385; Ward v. Md., 79 U.S. 418 (1870); Conner v. Elliot, 59 U.S. 591233

(1855).

E.g., Piper, 470 U.S. at 282 n.10 (1985). 234

See Scott v. Sanford, 60 U.S. 393 (1857). 235

Id. at 417. 236

Id. at 583-84 (Curtis, J., dissenting). 237

Id. 238

334 U.S. 385. 239

58

Although Corfield has been cited approvingly in subsequent cases, it has sometimes been232

ignored, and its theory even disparaged. For a long time, the Court proceeded in a case-by-case233 234

fashion, without attempting to formulate a general test. During this period, the Court took it for grantedthat 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 becausethat would mean that if free blacks traveled to a slave state, the federal Constitution “would give themthe full liberty of speech in public and in private upon all subjects upon which its own citizens mightspeak; 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 andImmunities Clause left untouched the authority of every state to impose qualifications and restrictions(including racial restrictions) on such rights. But Curtis did not challenge Taney’s assumption that the237

Privileges and Immunities Clause would forbid a state from discriminating against nonresidents as suchin 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, the Court attempted to synthesize a general239

framework:

The primary purpose of this clause, like the clauses between which it is located—thoserelating to full faith and credit and to interstate extradition of fugitives from justice—wasto help fuse into one Nation a collection of independent, sovereign States. It wasdesigned to insure to a citizen of State A who ventures into State B the same privilegeswhich the citizens of State B enjoy

. . . .

In line with this underlying purpose, it was long ago decided that one of the privilegeswhich the clause guarantees to citizens of State A is that of doing business in State B onterms of substantial equality with the citizens of that State.

Like many other constitutional provisions, the privileges and immunities clause is notan absolute. It does bar discrimination against citizens of other States where there is nosubstantial reason for the discrimination beyond the mere fact that they are citizens ofother States. But it does not preclude disparity of treatment in the many situations wherethere are perfectly valid independent reasons for it. Thus the inquiry in each case must

Id. at 395-96 (footnotes omitted). 240

Corfield, 6 F. Cas. 546. 241

Cf. John C. Eastman, Re-Evaluating the Privileges or Immunities Clause, 6 Chap. L. Rev. 123,242

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).

Something like the Toomer means/end analysis may have been implicit in Corfield’s allowance243

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 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.” 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.

One well known example is the principle of constitutional law according to which the Fourteenth244

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

be concerned with whether such reasons do exist and whether the degree ofdiscrimination bears a close relation to them. The inquiry must also, of course, beconducted with due regard for the principle that the States should have considerableleeway in analyzing local evils and in prescribing appropriate cures.240

This framework reflects an approach quite different from Corfield’s. Justice Washington241

appeared to think that the limiting principle in the Privileges and Immunities Clause was a distinctionbetween fundamental and non-fundamental rights, and that there would not be much disagreementabout how to classify particular rights. The Toomer approach begins instead by distinguishing242

permissible from impermissible legislative purposes, and scrutinizes challenged laws for an adequatemeans/end nexus with a permissible purpose.243

Toomer’s approach recognizes a real difficulty in the application of the Privileges and ImmunitiesClause. The Clause was meant to foster comity among the states, but not to eliminate the states asindependent, 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. Perhaps244

most obviously, the literal language of the Clause seems to require states to allow non-citizens to votein state elections, and indeed in the elections of more states than one, or to hold elective office in the

The Supreme Court has not interpreted the Privileges and Immunities Clause to lead to these245

counterintuitive results. See Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 383 (1978).

Cf. Martinez v. Bynum, 461 U.S. 321, 333 (1983) (“The Constitution permits a State to restrict246

eligibility for tuition-free education to its bona fide residents.”).

Toomer, 334 U.S. at 385. 247

Id. at 395. 248

334 U.S. at 399. 249

Id. at 403. 250

See Toomer, 334 U.S. at 407-09 (Frankfurter, J., concurring in part). 251

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state. Similarly, the language seems to imply that if a state taxes its own citizens to raise funds for245

public schools for their children, it must allow out-of-staters to send their children to these schoolswithout paying for the privilege. That reading of the Clause would point toward the destruction of the246

states as states. On the other hand, the purpose of the Privileges and Immunities Clause would easilybe defeated if states were able to deny outsiders every right whose existence is made possible only bycontributions from the states’ own citizens. That would mean that visitors from out of state could bedenied access to the courts, police protection, the right to travel on public highways, and so forth. Thatwould 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 reasoneddecisions about particular cases, and to apply the same kind of analysis to all privileges and immunitieswithout any need to determine which are “fundamental.” In Toomer itself, South Carolina required247

licenses to trawl for migratory shrimp in the state’s coastal waters, and the fee for a nonresident licensewas a hundred times greater than the fee charged to residents, effectively excluding nonresidents fromthe fishery. Rather than rejecting or approving discriminatory licensing fees as a general matter, the248

Court concluded that South Carolina was permitted “to charge non-residents a differential which wouldmerely compensate the State for any added enforcement burden they may impose or for anyconservation expenditures from taxes which only residents pay.” Because the state had not shown249

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 higherfee 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 reasoningit requires is relatively undisciplined. Deciding which forms of discrimination are reasonable, and whichare not, entails a kind of balancing that invites courts to make essentially political decisions. It wasapparently for this reason—and especially because they feared that the majority’s approach couldundermine “the continued retention by the States of powers that historically belonged to the States, andwere not explicitly given to the central government or withdrawn from the States”—that JusticesFrankfurter and Jackson rejected the Toomer approach. 59 Instead, these justices supported the bright251

94 U.S. at 395-96. The Toomer majority distinguished McCready on the ground that it involved252

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.

See, e.g., Piper, 470 U.S. 274; Sup. Ct. of Va. v. Friedman, 487 U.S. 59 (1988). 253

See, e.g., Toomer, 437 U.S. at 527-28; Piper, 470 U.S. at 280-81. 254

436 U.S. 371 (1978).255

Id. at 392-93. 256

Id. at 372-74. 257

61

line ownership-of-natural-resources theory that had been applied in Corfield and later was adopted bythe Court itself in McCready v. Virginia.252

Although there have been disputes within the Court about the reasonableness of particular formsof state regulation, Toomer’s analytic approach has generally been followed in subsequent cases.253 254

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. In this case, Montana had256

imposed a licensing fee for elk hunting by nonresidents that was several times higher than the feecharged to residents. Rather than analyze the state’s justifications for the differential, the Court simply257

declared that no analysis was needed:

Does the distinction made by Montana between residents and nonresidents inestablishing access to elk hunting threaten a basic right in a way that offends thePrivileges and Immunities Clause? Merely to ask the question seems to provide theanswer. We repeat much of what already has been said above: Elk hunting bynonresidents in Montana is a recreation and a sport. In itself—wholly apart from licensefees—it is costly and obviously available only to the wealthy nonresident or to the oneso taken with the sport that he sacrifices other values in order to indulge in it and toenjoy what it offers. It is not a means to the nonresident’s livelihood. The mastery of theanimal and the trophy are the ends that are sought; appellants are not totally excludedfrom these. The elk supply, which has been entrusted to the care of the State by thepeople 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 Montanaresidents simply does not fall within the purview of the Privileges and ImmunitiesClause. Equality in access to Montana elk is not basic to the maintenance or well-being

Id. at 388. 258

Id. 259

E.g., Doe, 410 U.S. 179 (1973). 260

Baldwin, 436 U.S. at 388. 261

Id.at 394-402 (Brennan, J., dissenting). 262

Id.at 388. 263

Haw. Boating Ass’n v. Water Transp. Facilities Div., 651 F.2d 661, 666-67 (9th Cir. 1981). The264

court seems to have regarded this as an alternative holding because it also concluded, more fundamentally,

that the plaintiffs lacked standing to raise a Privileges and Immunities claim. Id. at 666.

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of the Union. Appellants do not—and cannot—contend that they are deprived of ameans of a livelihood by the system or of access to any part of the State to which theymay seek to travel. We do not decide the full range of activities that are sufficiently basicto the livelihood of the Nation that the States may not interfere with a nonresident’sparticipation therein without similarly interfering with a resident’s participation.Whatever rights or activities may be “fundamental” under the Privileges and ImmunitiesClause, we are persuaded, and hold, that elk hunting by nonresidents in Montana is notone of them.258

To the extent that there is a rationale implicit in this statement, it might seem to lie in the fact thatsport hunting is “not a means to the nonresident’s livelihood.” But the Court had previously held that259

the Privileges and Immunities Clause in fact does apply to activities that are not a means to alivelihood. Nor could the Court have seriously meant to suggest that all, or perhaps even any, of the260

forms of discrimination previously struck down under this Clause involved some sort of imminent threatto the “maintenance or well-being of the Union.”261

Justice Brennan’s dissenting opinion (joined by Justices White and Marshall) argued that it madeno sense to combine the Toomer and Corfield approaches, and contended on the basis of an extensiveanalysis that the Court had already implicitly and correctly rejected Corfield’s approach in favor ofToomer’s. These arguments, however, were apparently no match for the majority’s conviction that262

sport hunting by wealthy visitors is not sufficiently “fundamental” to merit protection from unreasonablydiscriminatory treatment by state governments. Thus, the law as it currently stands allows the states263

to discriminate against noncitizens with respect to some undefined class of activities that are deemed tobe trivial or frivolous. Accordingly, courts now apply a two-step analysis, generally asking first whethera 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 restrictedthe Baldwin exception to closely analogous forms of amusement such as recreational boating,264

Alderding v. Ohio High Sch. Athletic Ass’n, 779 F.2d 315 (6th Cir. 1985). 265

Daly v. Harris, 215 F. Supp. 2d 1098, 1112 (D. Haw. 2002). 266

For a more detailed discussion of this point, see Nelson Lund, THE SECOND AMENDMENT,267

POLITICAL LIBERTY, AND THE R IGHT TO SELF-PRESERVATION, 39 Ala. L. Rev. 103 (1987).

Piper, 470 U.S. at 280 n.9. 268

Toomer, 334 U.S. 385. 269

Friedman, 487 U.S. 59. 270

Bolton, 410 U.S. 179. 271

It is possible that in some situations the denial of handgun licenses to nonresidents might confer272

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, GUNS, CRIME, AND FREEDOM 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.

Doe, 410 U.S. at 200-01. 273

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participation in high school interscholastic sports, and sunbathing, picnicking and snorkeling at the265

beach. David Bach’s desire to protect his life and the safety of his family from the threat posed by266

armed criminals has nothing in common with these activities. The right of self-defense is the most basicof all rights in our liberal tradition. Indeed, Bach’s right to the means of defending himself and his267

family is more fundamental than any of the rights that the Supreme Court has already deemed worthyof protection under the Privileges and Immunities Clause, such as the right to pursue a commoncalling, to engage in commercial fishing, to practice law, or to purchase medical services.268 269 270 271

Whatever the extent of New York’s authority to restrict the possession and carrying of handguns throughnondiscriminatory laws may be, that authority in no way undermines the proposition that the rightinvolved 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, andcommercial relations would bring virtually all of the rights protected by the Privileges and ImmunitiesClause within the Baldwin “exception” for non-fundamental rights.

One aspect of Bach’s case that makes it look somewhat different from most other Privileges andImmunities cases is that New York’s discriminatory licensing scheme does not seem to confer anysignificant benefit on New York residents. Unlike fishermen who compete in a common pool, or lawyerswho compete for clients, Bach’s exercise of a right to protect himself from violent criminals would notobviously diminish the ability of New York citizens to protect themselves in the same way. It is272

possible to imagine a jurisprudence of the Privileges and Immunities Clause that would have made thisa significant factor, and treated discrimination differently depending on whether or not it appeared tobe part of a zero-sum game. The Supreme Court, however, foreclosed this approach when it decidedthat states may not forbid nonresidents to purchase medical services within their borders. In this case,273

the state government was affirmatively disadvantaging the commercial interests of an important class

Id. at 200-01.274

Baldwin, 436 U.S. at 388.275

The fact that such a law might also violate the Equal Protection Clause does not imply that the276

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).

Bach v. Pataki, 2005 WL 1052565, *8 (quoting Hicklin v. Orbeck, 437 U.S. at 526, which was277

in turn quoting Toomer, 334 U.S. at 398).

64

of its own citizens, namely the medical industry, and was not conferring any material benefit on anyclass of its own citizens. It follows, a fortiori, that the right to the means of defending one’s life from274

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 donot involve rent-seeking in the classic sense is quite appropriate. It is almost certainly true thatcommercial preferences represent the kind of discrimination most likely to trigger retaliatory regulationsfrom sister states, and thus to engender a spiral of ill will that would threaten the “maintenance or well-being of the Union.” But it is not true that this is the only kind of discrimination that can generate275

resentment and retaliation. Nor is there any reason to confine the reach of the Privileges and ImmunitiesClause to those forms of discrimination likely to lead directly to major interstate disputes. Whatever themotive for New York’s decision to give its own citizens greater protection from armed criminals than itgives to visitors from other states, that decision conveys at least a message of relative indifference to thelives and safety of its visitors. Had New York enacted a statute forbidding its law enforcement officialsto investigate and prosecute crimes against nonresidents, no one could argue with a straight face thatthe Privileges and Immunities Clause would not apply. The statute at issue in David Bach’s case276

differs from this hypothetical statute only in degree, which confirms that the Baldwin exception for non-fundamental 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’sdiscriminatory treatment of out-of-state citizens is justified nonetheless. Invoking Toomer’s exceptionfor cases in which there is “something to indicate that non-citizens constitute a peculiar source of the evilat which the statute is aimed,” 85 the Second Circuit concluded that the challenged regulation is277

justified by administrative convenience. To appreciate the extraordinary nature of this conclusion, onemust begin by noting that the New York handgun statute gives officials a remarkably wide range ofdiscretion in granting and revoking licenses on the basis of “good character, competency and integrity,”

See Bach v. Pataki at *3 n. 9 (citing Suzanne Novak, Why The New York State System For278

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”)).

Bach v. Pataki at *4 (citing Finley v. Nicandri, 272 A.D.2d 831, 831 (3d Dep’t 2000)). 279

Bach v. Pataki at *4 n.12 (citing Lang v. Rozzi, 205 A.D.2d 783, 783 (2d Dep’t 1994)).280

334 U.S. at 396.281

65

a discretion that is so broad as to raise serious constitutional questions on that basis alone. New York278

courts have, for example, upheld revocations where a licensee appeared to be “agitated” while inpossession of a handgun, and where a licensee showed “poor judgment” by failing to safeguard his279

weapon while accompanying a Boy Scout troop. The Bach court held that information about such280

incidents is more likely to find its way to New York licensing authorities in the case of New Yorkresidents than in the case of out-of-staters. According to the Second Circuit, this difference is enoughto meet Toomer’s “substantial reason” test, which requires valid independent reasons for discriminationagainst out-of-staters, as well as proof that the degree of discrimination bears a close relationship tothose reasons.281

Under the Second Circuit’s approach, there is probably no regulation on any subject that couldnot be upheld under the Toomer test. The court did not claim that New York has any organized systemfor monitoring its licensees for behavior exhibiting characteristics such as “agitation” or “poorjudgment.” Rather, New York licensing officials simply happen to hear about such things from time totime, 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 aboutbehavior they don’t like when it involves New York residents than when it involves out-of-staters, theSecond Circuit found the Toomer test satisfied.

Under such reasoning, however, Toomer itself must have been wrongly decided. In that case, SouthCarolina imposed a much higher license fee on out-of-state shrimp fishermen than it did on its owncitizens, and the state responded with a barrage of allegedly important distinctions between in-state andout-of-state fishermen. The Supreme Court pointedly declined to defer to the state:

[The State defendants] mention, without further elucidation, the fishing methods usedby non-residents, the size of their boats, and the allegedly greater cost of enforcing thelaws against them. One statement in the [state defendants’] brief might also beconstrued to mean that the State’s conservation program for shrimp requiresexpenditure of funds beyond those collected in license feesCfunds to which residentsand not non-residents contribute. Nothing in the record indicates that non-residents uselarger boats or different fishing methods than residents, that the cost of enforcing thelaws against them is appreciably greater, or that any substantial amount of the State’sgeneral funds is devoted to shrimp conservation. But assuming such were the facts, theywould not necessarily support a remedy so drastic as to be a near equivalent of totalexclusion. The State is not without power, for example, to restrict the type of equipmentused in its fisheries, to graduate license fees according to the size of the boats, or even

Toomer, 334 U.S. at 398-99 (emphasis added; footnotes omitted).282

Id. at 399.283

410 U.S. at 200.284

470 U.S. at 286-87. The court used a similar analysis in refusing to uphold discrimination based285

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.

358 F.3d 223 (2d Cir. 2004), rev’d sub nom. Granholm v. Heald, 125 S. Ct. 1885 (2005). 286

Id. at 239-40. Judge Wesley’s opinion contains an odd “cf.” cite to Supreme Court of Virginia287

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

to charge non-residents a differential which would merely compensate the State for anyadded enforcement burden they may impose or for any conservation expenditures fromtaxes which only residents pay. We would be closing our eyes to reality, we believe, ifwe concluded that there was a reasonable relationship between the danger representedby 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 onwhich the Second Circuit based its holding plays any significant role in serving the legitimate goals ofthe state’s licensing system. Nor did New York show that it was unable to monitor out-of-state licenseholders in ways that were sufficient to serve those legitimate goals. Nor did New York show that it couldnot provide for monitoring of out-of-state residents, financed if necessary by higher license fees on theout-of-staters, that would be at least as effectual as the serendipitous, and apparently very minor, effectsof in-state residency. There is, in short, no “reasonable relationship between the danger represented bynon-citizens, as a class, and the severe discrimination practiced upon them.”283

Toomer is not the only Supreme Court decision rejecting administrative convenience argumentsthat 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 bedeemed to have some relationship to the availability of post-procedure medical care for the abortedpatient.” 92 In Supreme Court of New Hampshire v. Piper, the state defended its refusal to license out-284

of-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 wouldprobably 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 anothercase in which the Second Court relied on an administrative convenience argument similar to the oneon which it relied in the Bach case. Even more ironically, but perhaps not serendipitously, the samejudge was the author of both Second Circuit opinions. In Swedenburg v. Kelly, the Second Circuit286

upheld a New York statute forbidding out-of-state wineries to sell their product to New York consumersunless the out-of-state winery establishes a physical presence in New York. Judge Wesley’s opinionrejected a challenge under the Privileges and Immunities Clause on the ground that the statute did notdiscriminate against out-of-state wineries, notwithstanding his recognition that “out-of-state wineries287

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 out-

of-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.

358 F.3d at 238. 288

Id. at 237-39. 289

125 S. Ct. 1885 (2005).290

Id. at 1907.291

67

will incur some costs in establishing and maintaining a physical presence in New York, costs not incurredby in-state wineries.” The court acknowledged that the statute raised serious issues under the288

dormant commerce doctrine, but held that because the physical presence requirement made it easierfor New York to monitor the behavior of out-of-state wineries, the statute was a valid exercise of thestate’s authority under Section 2 of the Twenty-First Amendment.289

In Granholm v. Heald, the Supreme Court reversed the Second Circuit’s Swedenburg290

decision, rejecting its interpretation of the Twenty-First Amendment and holding that New York’sphysical presence rule violated the Commerce Clause. Whatever one may think about the disagreementbetween these two courts about the Twenty-First Amendment, the more significant point for the Bachcase is that the Supreme Court rejected a variety of monitoring and administrative arguments pressedby New York. Contrary to Judge Wesley’s opinion, the Supreme Court accepted the rather obviousconclusion 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 againstout-of-state goods,” namely a finding based on “concrete record evidence” that nondiscriminatoryalternatives are unworkable. No such “concrete record evidence” existed in Bach v. Pataki, and the291

Second Circuit’s reliance on monitoring by serendipity is not a substitute for such evidence. Althoughthe 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

“Although appellants raise no Commerce Clause challenge to the Act, the mutually reinforcing292

relationship between the Privileges and Immunities Clause of Art. IV, ' 2, and the Commerce 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).

Alexander Hamilton, James Madison & John Jay, FEDERALIST PAPERS, NO . 80 reprinted in THE293

FEDERALIST PAPERS, at 478 (Clinton Rossiter ed. The New American Library) (1961).

See, e.g., Zobel v. Williams, 457 U.S. 55, 79-80 (1982).294

68

similar with respect to the questions at issue here. Accordingly, Granholm strongly suggests that the292

Second Circuit’s holding in Bach v. Pataki was error, and that it was an error the Supreme Court shouldcorrect.

III. CONCLUSION

The principal defense of diversity jurisdiction in The Federalist Papers consists of AlexanderHamilton’s claim that this feature of Article III would prove vital in preserving the nation from violationsof the Privileges and Immunities Clause:

It may be esteemed the basis of the Union that “the citizens of each State shall beentitled to all the privileges and immunities of citizens of the several States.” And if it bea just principle that every government ought to possess the means of executing its ownprovisions by its own authority, it will follow, that in order to the inviolable maintenanceof that equality of privileges and immunities to which the citizens of the Union will beentitled, the national judiciary ought to preside in all cases in which one State or itscitizens are opposed to another State or its citizens. To secure the full effect of sofundamental a provision against all evasion and subterfuge, it is necessary that itsconstruction 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 inauspiciousto the principles on which it is founded. The Supreme Court has recognized that293

state governments can have a variety of motives for the “evasion and subterfuge” thatHamilton foresaw, and the Court has accordingly insisted that discrimination against theresidents of sister states be scrutinized with a skeptical eye. This has not led to294

anything like a per se rule forbidding such discrimination. A simple-minded rule ofnondiscrimination, for example, could have the practical effect of giving nonresidentsan unjust advantage over residents, as in cases where a state has taxed its own citizensin order to provide a public good that would invite free-riding by outsiders. Nor has theCourt interpreted the Clause to require states to treat non-citizens as if they were citizenswith respect to political rights such as voting and holding public office. Nor, it isimportant to stress, has the Privileges and Immunities Clause been interpreted to requirestates to give visitors the same substantive rights that they enjoy in their home states, orthe substantive rights that a federal court thinks all Americans should have. ThePrivileges and Immunities Clause created a rule of nondiscrimination, not a license for

Toomer, 334 U.S. at 396. 295

69

federal courts to impose on the nation some uniform judicially-created scheme ofpersonal liberties.

Although the Privileges and Immunities Clause is “not an absolute,” neither is it a precatory295

invitation to “be nice” or a green light for discrimination that falls short of provoking civil war. Underexisting Supreme Court precedent, New York has failed to adequately justify its decision to granthandgun licenses to its own citizens and selected groups of nonresidents, but not to other nonresidentswho meet all the statutory criteria except for residency. The Second Circuit’s decision to uphold NewYork’s discriminatory regulation is a reminder that the lower federal courts have not been purged ofwhat Hamilton called “local attachments.” Perhaps such attachments have contributed, no doubtsubconsciously if at all, to what looks rather like “evasion and subterfuge” of the Privileges andImmunities Clause.

If so, perhaps the U.S. Supreme Court—which Hamilton recognized as the one tribunal free oflocal attachments—will correct the Second Circuit’s error. The Baldwin decision, however, sounds adisquieting note. For reasons that its opinion left quite murky, the Baldwin Court created an exceptionfrom the Privileges and Immunities Clause for the right to engage in elk hunting. One cannot helpsuspecting that the ruling may have been driven at least in part by a cultural prejudice against a formof recreation that is distasteful to many people in the social class from which federal judges areoverwhelmingly drawn. Such prejudices evince a different kind of parochialism than the geographicprovincialism on which Hamilton focused in The Federalist, but they are no less a threat than “localattachments” to an impartial application of the Constitution. Given the widespread misgivings about thevalue of an armed citizenry among the elite social class that provides us with our federal judges, it is atleast conceivable that the Supreme Court itself would engage in something like what Hamiltoncondemned as “evasion and subterfuge.” Were that to happen, it would be a reminder that Hamiltononly thought that the Supreme Court will never be “likely to feel any bias inauspicious to the principleson which [the Union] is founded.” Unlikely is not the same as impossible.

Case No. 00-4477 (Appeal from the United States District Court for the Southern District of296

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

E. CASE LAW AND OTHER AUTHORITIES RELATING TO THE RIGHT TO TRAVEL

1. Patricia Johnson; Michael Au France v. City of Cincinnati, 6 Circuitth 296

Section IV.

B.

In analyzing whether a particular right implicates the protection of the Due Process Clause, wefirst carefully define the asserted right and then ask whether it is “deeply rooted in this Nation’s historyand tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice wouldexist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.E.2d772 (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. SeeLutz, 899 F.2d 255, 268 (3d Cir. 1990) (“The right or tradition we consider may be described as theright to travel locally through public spaces and roadways.”) While the terms are often usedinterchangeably, we do not use the right to travel locally through public spaces and roadwayssynonymously with a right to freedom of movement. To be sure, a right to freedom of movement couldencompass a right to localized travel, but it could also include interstate and international travelcomponents. While we draw from historical sources discussing a freedom of movement, and find theirauthority instructive, our holding is limited to the right to travel locally through public spaces androadways. Moreover, while we can conceive of different articulations of a right to intrastate travel, theright we address - the right to travel locally through public spaces and roadways - is fundamentally oneof access.

C.

“The constitutional right to travel from one State to another . . . occupies a position fundamentalto the concept of our Federal Union. It is a right that has been firmly established and repeatedlyrecognized.” United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); see alsoSaenz, 526 U.S. at 498 (describing the constitutional right to travel as “firmly embedded” in theSupreme Court’s jurisprudence). It is “assertable against private interference as well as governmentaction . . . . 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 differentcomponents: (1) “the right of a citizen of one State to enter and to leave another state”; (2) “the rightto be treated as a welcome visitor rather than an unfriendly alien when temporarily present in thesecond State”; and (3) “for those travelers who elect to become permanent residents, the right to betreated like other citizens of that State.” Saenz, 526 U.S. at 500. The Supreme Court has not yetidentified the source of the first travel right, but the latter two components are expressly protected by thePrivileges and Immunities Clause. Id. at 501-03.

The Supreme Court has not yet addressed whether the Constitution also protects a right tointrastate 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

But see Wright v. City of Jackson, 506 F.2d 900, 902-03 (5th Cir. 1975).297

A number of state courts have also ruled that their respective state constitutions protect a right to298

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).

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constitutional right to intrastate travel and concluded that the Ordinance impermissibly infringed on thisright. 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 rightto move freely about one’s own neighborhood or town” is a fundamental liberty interest protected bythe 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]recedentsrecognize a fundamental right to walk through public streets without thereby subjecting oneself to policecustody.”); see also id. at 538 (plurality) (Silberman, J.) (accepting that a “draconian curfew” mightimplicate substantive due process); Pottinger v. City of Miami, 810 F. Supp. 1551, 1578-81 (S.D. Fla.1992); City of Seattle v. McConahy, 937 P.2d 1133, 1141 (Wash. App. 1997). 297 298

Although the Supreme Court has not expressly recognized a fundamental right to intrastatetravel, as early as the Articles of Confederation, state citizens “possessed the fundamental right, inherentin citizens of all free governments, peacefully to dwell within the limits of their respective states, to moveat will from place to place therein, and to have free ingress thereto and egress therefrom.” United Statesv. 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 onepeople, with one common country. We are all citizens of the United States; and asmembers of the same community, must have the right to pass and repass through everypart 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 oflocomotion, of changing situation, or removing one’s person to whatever place one’s own inclinationmay direct, without restraint, unless by due course of law”) (internal quotations omitted). Or as theSupreme Court noted at the turn of the twentieth century: “[T]he right to remove from one place toanother according to inclination, is an attribute of . . . liberty . . . secured by the Fourteenth Amendmentand 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:

Writing in 1971, the Second Circuit keenly observed that “[i]t would be meaningless to describe299

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.

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[I]t is apparent that an individual’s decision to remain in a public place of his choice isas much a part of his liberty as the freedom of movement inside frontiers that is “a partof 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 Kolenderv. 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 considerationof 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 “historicallypart of the amenities of life as we have known them.”); Guest, 383 U.S. at 759 (“[F]reedom to travelthroughout the United States has long been recognized as a basic right under the Constitution.”); Nunezv. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997) (“Citizens have a fundamental right of freemovement, ‘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 firstsettler crossed into what would eventually become this great state, and it is a tradition no Ohioan wouldfreely relinquish.”); Gomez v. Turner, 672 F.2d 134, 143-44 n. 18 (D.C. Cir. 1982) (noting that theability to “walk the streets, without explanation or formal papers is surely among the cherished libertiesthat distinguish this nation from so many others.”). In light of these cases, we find that the right to299

travel locally through public spaces and roadways enjoys a unique and protected place in our nationalheritage.

In addition to its solid historical foundation, the tremendous practical significance of a right tolocalized travel also strongly suggests that such a right is secured by substantive due process. The rightto travel locally through public spaces and roadways - perhaps more than any other right secured bysubstantive 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 businessopportunities - for cultural, political, and social activities - for all the commingling whichgregarious man enjoys. Those with the right of free movement use it at times formischievous purposes. But that is true of many liberties we enjoy. We nevertheless placeour faith in them, and against restraint, knowing that the risk of abusing liberty so as togive rise to punishable conduct is part of the price we pay for this free society.

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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, concurringin part). The Ordinance itself references an individual’s “significant private interest in being able to traveland associate freely in all areas of the City.” In view of the historical endorsement of a right to intrastatetravel and the practical necessity of such a right, we hold that the Constitution protects a right to travellocally through public spaces and roadways.

2. State v. Burnett (2001), 93 Ohio St.3d 419.]

Constitutional law — Municipal corporations — Cincinnati ordinance establishes drug-exclusion zoneswithin city — Chapter 755 of the Cincinnati Municipal Code is an unconstitutional violation of the rightto travel as guaranteed by the Fourteenth Amendment to the United States Constitution and a violationof Section 3, Article XVIII of the Ohio Constitution — Supreme Court of Ohio not bound by rulings onfederal statutory or constitutional law made by a federal court other than the United States SupremeCourt. (No. 00-266 — Submitted March 13, 2001 — ecided October 17, 2001.) Appeal from the Courtof 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 itimpermissibly burdens the right to travel. Burnett alleges that the right to travel is a personal libertyprotected by the Fourteenth Amendment to the United States Constitution and that Chapter 755infringes 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 afundamental, guaranteed personal liberty by extending its reach further than necessary to advance thepublic interests it declares.

In all the cases addressing the right to travel, the United States Supreme Court has examinedonly the right to travel from one state to another.[6] To date, the court has not expressly recognized aconstitutional right of travel within a state. Burnett argues, however, that a right of intrastate travel existsand that the Cincinnati ordinance has impermissibly burdened this right. Precedent of the United StatesSupreme Court and federal courts of appeals, and our own precedent cause us to conclude that sucha constitutional right of travel within a state exists and that the Cincinnati ordinance hasunconstitutionally burdened that right.

As suggested by the United States Supreme Court, the right of travel is most likely protectedfrom 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 isa part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under theFifth 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 processprotects unenumerated rights, the question, as articulated by Justice Scalia, is whether the asserted rightis “ ‘so rooted in the traditions and conscience of our people as to be ranked fundamental.’ ” MichaelH. v. Gerald D. (1989), 491 U.S. 110, 122, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91, 105, quotingSnyder 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 traditionand implicit in the concept of ordered liberty that neither liberty nor justice would exist if they weresurrendered. Moore v. E. Cleveland (1977), 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531,

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540. In affording protection to unenumerated rights, however, we must be mindful that a “ ‘carefuldescription’ 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), 507U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16; see, also, Michael H., 491 U.S. at 127, 109S.Ct. at 2344, 105 L.Ed.2d at 108, fn. 6. (the relevant traditions must be identified and evaluated at themost specific level of generality possible.) The sole purpose of this limiting function is to providefundamental protection only to those traditions deeply woven into this Nation’s historical fabric withoutoverextending 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 wasformed, 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 itwithout 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 statesand 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), 179U.S. 270, 274, 21 S.Ct. 128, 129, 45 L.Ed. 186, 188. The word “travel” is not mentioned within thetext of the Constitution. “Yet the ‘constitutional right to travel from one State to another’ is firmlyembedded in our jurisprudence.” Saenz v. Roe (1999), 526 U.S. 489, 498, 119 S.Ct. 1518, 1524, 143L.Ed.2d 689, 701, quoting Guest, 383 U.S. at 757, 86 S.Ct. at 1178, 16 L.Ed.2d at 249. Indeed, “theright 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., quotingShapiro 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 firmlyestablished 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 rightto travel locally through public spaces and roadways of this state. Historically, it is beyond contentionthat 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 thestates. Every citizen of this state, much like the citizens of this Nation, enjoys the freedom of mobility notonly to cross our borders into our sister states, but also to roam about innocently in the wide-openspaces of our state parks or through the streets and sidewalks of our most populous cities. This freedomof mobility is a tradition extending back to when the first settler crossed into what would eventuallybecome 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 dueprocess, the utmost care must be taken when being asked to break new ground in FourteenthAmendment 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 ourpeople. As further observed by the Second Circuit, “[i]t would be meaningless to describe the right totravel 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), 442F.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 citizencannot 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 evaluatedunder a compelling-interest test. See Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22L.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 compellinggovernmental interest. Reno v. Flores (1993), 507 U.S. 292, 301-302, 113 S.Ct. 1439, 1447, 123L.Ed.2d 1, 16.

Cincinnati asserts that the purposes of Chapter 755 are “restoring the quality of life andprotecting 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 illegaldrug abuse and/or illegal drug abuse related crimes.” Ordinance No. 229-1996, Section 1(D). We agreewith the city that these asserted interests are compelling. The destruction of some neighborhoods byillegal drug activity has created a crisis of national magnitude, and governments are justified in attackingthe problem aggressively. When legislation addressing the drug problem infringes certain fundamentalrights, however, more than a compelling interest is needed to survive constitutional scrutiny. The statutemust 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 thoseinterests 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 CincinnatiMunicipal Code is immediately prohibited for one year from being on “public streets, sidewalk[s], andother public ways in all drug-exclusion zones designated in Chapter 755.” Cincinnati Municipal Code755-5. The exclusion is in addition to any criminal penalty for violating the provisions of the OhioRevised Code. Only if the person is a bona fide resident of the drug-exclusion zone or is legallyemployed within the drug-exclusion zone does the restriction on travel not apply. Cincinnati MunicipalCode 755-11(b)(i) and (ii). The chief of police and social services agencies also have discretion to granta variance only for health reasons or for drug-abuse-related counseling services. Cincinnati MunicipalCode 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, 101L.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 theproblems associated with illegal drug activity and attacks any number of potential activities done withan innocent purpose. In this respect, the Cincinnati Ordinance is similar to an ordinance we declaredunconstitutional 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-relatedactivity. In declaring the ordinance unconstitutional, we found significant the fact that “a person doesnot have to commit a drug-related offense to violate the ordinance. The ordinance is prophylactic: itpermits police to make an arrest before any crime has occurred. The police do not need to have anyevidence that a crime has occurred or is about to occur—they can make an arrest based on subjectivesuspicion alone.” (Emphasis sic.) Id. at 386, 618 N.E.2d at 148. The ordinance, we stated, “can easily

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implicate a person’s status, associates, mere presence, or otherwise innocent behavior * * * [andtherefore] encroach on a ‘substantial amount of constitutionally protected conduct.’ ” Id. at 387, 618N.E.2d at 149, quoting Houston v. Hill (1987), 482 U.S. 451, 459, 107 S.Ct. 2502, 2508, 96 L.Ed.2d398, 410. Without a limit on the intrusions into innocent conduct the ordinance ran afoul of the DueProcess 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 substantialamount of innocent conduct and is not, therefore, narrowly tailored. A person subject to exclusion isexposed to a criminal penalty by simply being in Over the Rhine. Cincinnati Municipal Code 755-5. Theprohibited conduct is not limited to entering a drug-exclusion zone to engage in some type of illegalactivity, such as the purchase or sale of drugs or corrupting another with drugs. Instead, the ordinancealso attacks conduct that is completely innocent. A person subject to the exclusion ordinance may notenter a drug-exclusion zone to speak with counsel, to visit family, to attend church, to receive emergencymedical care, to go to a grocery store, or just to stand on a street corner and look at a blue sky. Noneof these activities are performed with illegal intention, yet a criminal penalty attaches to them withoutany evidence of illegality, or improper purpose, or a finding that the person is likely to commit futuredrug offenses.

“A narrowly tailored ordinance would not authorize the arrest of a grandmother who enteredOver the Rhine for the purpose of seeing her grandchildren. A narrowly tailored ordinance would notauthorize the arrest of a homeless person who entered Over the Rhine to obtain food, shelter, andclothing from relief agencies. Nor would it prevent any person from meeting with his or her attorney atthe 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 Overthe 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 futuresexual offenses is required before the offender can be classified as a sexual predator). A narrowlytailored ordinance would not strike at an evil with such force that constitutionally protected conduct isharmed along with unprotected conduct. “The Constitution does not permit a legislature to ‘set a netlarge enough to catch all possible offenders, and leave it to the courts to step inside and say who couldbe 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 guaranteeof the right of travel which is protected by the Due Process Clause of the Fourteenth Amendment to theUnited States Constitution. Although the Cincinnati ordinance is supported by compelling interests, itis 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 anyof 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. DEFINING RIGHTS

(i). Right as defined by Webster Unabridged Dictionary:

! In law, (a) an enforceable claim or title to any subject matter whatever; (b) one’s claimto something out of possession; a power, prerogative, or privilege, as when the word isapplied to a corporation.

(ii). Right as relates to the person:

! “Rights” are absolute or relative; absolute “Rights,” such as every individual born orliving in this country (and not an alien enemy) is constantly clothed with, and relate tohis own personal security of life, limbs, body, health, and reputation; or to his or herpersonal 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: 1Chitty 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, indistinction from a conditional bond; an absolute estate, one that is free from all mannerof conditions or encumbrance. A rule is said to be absolute when, on the hearing, it isconfirmed.”

(v). Inalienable as defined by Bouvier’s Law Dictionary:

! A word denoting the condition of those things, the property in which cannot belawfully transferred from one person to another.

It shows from these definitions that the State has an obligation to acknowledge the “Rights” ofthis Citizen to travel on the streets or highways.

Furthermore, the States and the Federal Government have the “duty” to refrain from interferingwith 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 townor upon the interstate between states, does that “Right” include the “Right” to travel in a vehicle uponthe 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

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(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 theroadways 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 andconvenience. See: Chicago Motor Coach v. Chicago, 169 N.E. 22.

“Regulated” here means traffic safety enforcement, stop lights, sign, etc., NOT a privilege thatrequires 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 merePrivilege, but a “common and fundamental right” of which the public and individualscannot 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., HIGHWAYS 163

! A Citizen’s “Right” to travel upon public highways includes the right to use usualconveyances of time, including horse-drawn carriage, or automobile, for ordinarypurposes 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 hisproperty thereon, either by carriage or by automobile, is not a mere privilege which acity 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 ofPolice), 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 additionalcourt 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 denyor disparage others retained by the people.”

(ii). American Jurisprudence 1st:

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

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inclination along the public roadways or in public places, and while conducting himselfin 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. (Emphasisadded) 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 theordinary 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 courseof life and business.” Hadfield v. Lundin, 98 Wn. 657; 168 P. 516.; State v. City ofSpokane, 109 Wn. 360; 186 P. 864.

! “The Right of the Citizen to travel upon the highways and to transport his propertythereon, in the ordinary course of life and business, obviously differs radically from thatof one who makes the highways his principal place of business and uses it for privategain.” 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 hisproperty thereon, that “Right” does not extend to the use of the highways, either inwhole or in part, as a place of business for private gain. For the latter purposes noperson has a vested right to use the highways of the state, but is a mere privilege orlicense 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 casestoo 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 freelyfor all lawful purposes. See: Robertson v. Department of Public Works, 180 Wash. 133at 139

(v). Indiana Supreme Court (1873):

! It is not the amount of travel, the extent of the use of a highway by the public thatdistinguishes 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 ofthe 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 placeas conditions to the exercise of that privilege. See: Gardner v. City of Brunswick, 28S.E.2d 135

(vii). Colorado Supreme Court:

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! 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, possessingand protecting property; ....

A motor vehicle is “property” and a person “cannot be deprived” of property withoutdue 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 andliberty. See: People v. Nothaus, 147 Colo. 210

(viii). Idaho Constitution:

! “All men are by nature free and equal, and have certain inalienable “rights,” amongwhich are ....; acquiring, possessing, and protecting property .... (Emphasis added).

The words of the Idaho Constitution are to all intents and purposes identical with those of theNorth 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 arecreated equal; that they are endowed by the Creator with certain inalienable rights; thatamong these are life, liberty, the enjoyment of the fruits of their own labor, and thepursuit of happiness.”

! “To be that statutes which would deprive a Citizen of the rights of person or propertywithout a regular trial, according to the course and usage of common law, would notbe 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 Courtwould 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 othersretained by the people.”

(xi). North Carolina Constitution, Article I, & sect;2:

! “Sovereignty of the people. All political power is vested in and derived from thepeople; all government of right originates from the people, is founded upon their willonly, 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 toanother 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

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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 AngelHighways 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 whenany part thereof is open to the use of the public, as a matter of “Right,” for purposes ofvehicular 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 businesswhich 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 termsof that instrument made the supreme law of the land. The Fourteenth Amendmentprotects life, liberty, and property from invasion by the States without due processof law. Property is more than the mere thing which a person owns. It is elementary thatit 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 theunrestricted “Right” of use, enjoyment and disposal. Anything which destroys any ofthese elements of property, to that extent destroys the property itself. The substantialvalue of property lies in its use. If the Right of use be denied, the value of the propertyis annihilated and ownership is rendered a barren Right. Therefore, a law which forbidsthe use of a certain kind of property, strips it of an essential attribute and in actual resultproscribes its ownership. Spann v. City of Dallas, 235 S. W. 513

! These words of the Supreme Court of Texas are of particular importance in Idahobecause the Idaho Supreme Court quoted the Supreme Court of Texas and used theseexact words in rendering its decision in the case of O’ Conner v. City of Moscow, 69Idaho 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 intosociety. The “Right” to acquire and own property, and to deal with it and use it as theowner chooses, so long as the use harms nobody, is a natural “Right.” It does not oweits origin to constitutions. It existed before them. It is a part of the Citizen ‘s naturalliberty -- an expression of his freedom, guaranteed as inviolate by every American Billof “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. Thereasonable 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). MOTOR VEHICLE OR VEHICLE?

(i). Title 49 Transportation, U.S.C.A. §10102 (17):

! “Motor vehicle” means a vehicle, machine, tractor, trailer, or semi-trailer propelledor 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 powerfrom a fixed overhead wire, and providing local passenger “transportation” similar tostreet-railway service.

(ii). New Jersey:

! The term “Motor Vehicle” may be so used as to include only those self-propelledvehicles which are used on highways primarily for purposes of “transporting” personsand 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 ofmotor vehicle “are not intended” to be applicable to all motor vehicles, but applicableonly to those having a connection with the “commercial transportation” of persons orproperty 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 propertyincludes 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 anyState or of between cities or town or towns between States, or upon the Interstate between States towhat extent can the State or the Federal Government regulate or diminish that my “Right” to ownproperty (privately owned vehicle and firearms)? There are some who would maintain that “specificperformance” 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 acontract asks the court to order the other party to carry out the contract which he has failed or refusedto 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 orhighways, the user of a vehicle seems to be one of the parties to the supposed contract. And since theState appears to be the party demanding specific performance, the State is the other party to thecontract. So the supposed contract exists between the user of a vehicle and the State. When was thiscontract executed and what are its’ terms? Some contend that when a user of a vehicle avails himselfof the “privilege” of driving on public thoroughfares that he enters a contract with the State that requireshim to abide with all the laws in the General Statutes or Code of the State. Others contend that thecontract 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 fouressential 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. Contractscan be classified under three (3) principal categories:

! Express

! Implied

! Quasi

Quasi contracts, while being called contracts, are not-really contracts, and will not beconsidered in this particular discussion concerning contracts, but we will consider and address thatissue in a separation section later.

Unilateral & Bilateral Contracts

There can also be unilateral and bilateral contracts that is “presumed to exist” under some orall the above headings. Let us examine each above types of contracts to see if the license I obtained fallsunder any of the categories of contract.

! An express contract is one in which the agreement of the parties is fully stated inwords, 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 andconduct, viewed in the light of surrounding circumstances, and not from their wordseither spoken or written. Like an express contract, it grows out of the intention of theparties 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)

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! License is defined as the “Authority” to do some act or carry on some trade orbusiness, in its nature lawful but prohibited statute, except with the permission of thecivil 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 millimetersin 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; andthe 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 constitutean 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 orhighways. But this Citizen already has that “Right” to drive on the streets or highways, and the Statecannot require this Citizen to give up a “Right” to obtain a “privilege.” Hence the Doctrine ofUnconstitutional Conditions.

! An Iowa Statute that requires that every foreign corporation named in it shall, as acondition for obtaining a permit to transact business in Iowa, stipulate that it will notremove into the federal court certain suits that it would by the laws of the United Stateshave a “Right” to a permit dependant upon the surrender by the foreign corporation ofa privilege secured to it by the Constitution and laws of the United States. BOUVIER’SLAW 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 thatstatutes that would deprive a Citizen of the “Rights” of person or property without aregular trial according to the course and usage of the common law would not be the lawof the land. BOUVIER’S LAW DICTIONARY quoting Hoke v. Henderson, 15 N.C. 15, 25AM Dec 677.

It would be foolish for me to exchange a “Right” for a privilege since it would mean giving upvaluable property in exchange for something having less value.

! No act shall be deemed a crime if done with the consent of the party injured, unlessit be committed in public, and is likely to provoke a breach of the peace, or tends to theinjury of a third party; provided no consent can be given which will deprive theconsentor 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 orhighways of any city or town of any State or between cities or towns between States or in interstatetravel between States, or exchange it for the privilege granted by the State or the United States ofhaving a driver’s license. Thus, in exchange for the supposed obligation of this Sovereign, a State hasgiven 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 acontract under seal.

The seal provided conclusive presumption of a consideration. North Carolina for instance, hasabolished by statute the common law “presumption of consideration” and this statute is binding uponall officers and employees of the State.

Even though a seal may be present, it is “not evidence of consideration.” Of course, thedocument 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 areno 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 essentialand 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 onlydifference is that an implied contract is not written or spoken and the elements of the contract are shownby the acts and conduct of the parties involved. With respect to this Sovereign, there was certainly nomeeting 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? Therewas no consideration in the implied contract for the same reasons that there was no consideration inthe 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 maysay that the State was obligated to allow me to drive on the streets or highways and that I was obligatedto 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 streetsor 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 townin the State, then the State does not have any discretion in the matter and does not have the choice ofwhether to obligate themselves or not. Thus, the obligation of the State cannot be to grant me theprivilege of travel on the streets or highways. The obligation of the State must be to refrain fromprohibiting me from my travel on the streets or highways since the State does not have the “Right” todo so.

It is my contention that the only obligation that I incur when using a vehicle upon the streets orhighways is the Common Law obligation to refrain from any act that causes injury or death to anotherperson, liberty, or damage or destruction of property. In complying with this obligation, I contend thatI do comply with many Statutes of the General Statutes or Codes of the 50 States since they are, for themost 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 construedas evidence of a contractual obligation by me. Neither should it be construed to all the Statutes of theGeneral Statutes or Codes of the 50 States or to any of them always. Instead, it is merely evidence ofa 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 Arkansasor of the 49 other States. Instead, the actions can, with equal weight, be said to be evidence of amaterial 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 maypossibly be two parties, but there is certainly no consideration. Neither is there clear evidence of anobligation. 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 andsigns the paper upon which these statements are written under oath. The statements concern theidentity, physical description, address, ability and experience in operating a vehicle, and one statementon 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 persontaking the oath of the applicant. The reverse side of the Application contains the results of a vision testand rudimentary physical examination with the results of a driving test. These results are signed by theexaminer and not by the applicant.

Thus the application takes the form of an Affidavit instead of a contract. Are the elements of acontract 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 applicationdoes not constitute a contract.

The only other document involved in obtaining a driver’s license is the driver’s licenseidentification document itself, part of which has information copied from the applicaton to make theactual driver’s license. It contains, besides the information that is used in making the driver’s license, theresults 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 photographicprocess. Other material is added including a photograph, signature of the Director of the Departmentof 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 fromwhich the driver’s license is made cannot be a contract because, again, none of the elements of acontract are present. So if none of the documents executed by the driver when obtaining a license is acontract, then no contract can exist between the driver and the State as a result of obtaining a driver’slicense.

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But the idea that the driver’s license is a contract with the State is pervasive. It is a belief, thatis 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 withstandscrutiny. Not every offer made by one party and accepted by the other creates a valid contract. Theoutward form of a contract, either oral or written may exist, and yet the circumstances may be suchthat no contract in reality was ever created. Some circumstances that will cause an apparently validcontract 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 travelupon the roadways of the United States of America was a privilege. I accepted this representation as tobe 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 GeneralStatutes or Code are knowledgeable persons, many of whom are lawyers, and they undoubtedly knewat the time that the law was passed, that an individual’s travel was, in fact and law, a “Right” and nota privilege. If this were the case, then the mistake would be unilateral. A unilateral mistake known toone 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 positiverepresentations. Silence, where honesty requires speech, may sometimes constitutefraud. 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, hehas no “Right” by silence to deceive the other and suffer him to take an altogetherdifferent thing, from that for which that silence has bargained. Parish v. Thurston, 87Ind. 437 (1882).

If the driver’s license is a contract, a case can be made for the contention that it was anagreement obtained by the State by fraud.

! Fraud is a generic term which embraces all the multifarious means which humaningenuity can devise, and are resorted by one individual to get any advantage overanother. No definite and invariable rule can be laid down as a general propositiondefining fraud, as it includes all, trickery, cunning, surprise, dissembling, and unfair waysby 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 whichmake it possible to define fraud, in connection with a contract as any trick or artifice whereby a personby means of a material misrepresentation, creates an erroneous impression of the subject matter of aproposed transaction, and thereby induces another person to suffer damage computable in money. Themisrepresentation may result from a false statement, a concealment, or a nondisclosure. The elementsof 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 theGeneral Assembly of the State was unaware of these decisions, particularly since many legislators areand were lawyers knowledgeable in such matters. In fact, when one considers the definition of streetsor highways in Sections of the General Statutes, the Evidence is conclusive that the legislature knewand 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’slicense is necessary before one can travel constitutes a “material misrepresentation of fact” to thispossessor of a driver’s license. And since the legislature is and was aware of the fact that an individual’stravels was not a privilege, but a “Right,” the statement that one’s travels is a privilege, when appliedto 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 privilegewhen 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 tothe extent of the license fee.

In as much as all the necessary elements of fraud are present, if the driver’s license is considereda 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 essentialelement of an agreement. Consequently, if he is coerced into signing a contract by fearinduced by a threat to cause personal injury to himself or to some close relative, thecontract will not be a real agreement and it will be voidable at his option. The threat ofpersonal injury must be a threat to inflict immediate bodily injury or to institute acriminal 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 vehicleupon the streets or highways, and since the State threatens to and does prosecute persons in criminalactions 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 thisduress.

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 theother party, gives this latter party the option of treating the contract as discharged orenforcing 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 Statutesof the General Statutes are written. Each time that the General Assembly amends or modifies or addsto any of the Statutes of the General Statutes, the terms of the contract are changed. Since this Citizenthen has the option of considering the contract as discharged, he then chooses to do so as of the firstchange 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” comesinto play. The agreement is invalid, unless the same or some note or memorandum of it, be in writingand subscribed by the party charged, or by his agent. Evidence, therefore, of the agreement cannot bereceived without the writing or secondary evidence of its contents: An agreement that by its terms is notto 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 partypromises 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 apromise, 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 thestreets 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 contractcannot exist.

Having shown that no contract exists between the State and I, let us now examine, theproposition 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 theabsence 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.

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! 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 aquasi-contract, it must be shown that I received a benefit from the State. But one’s travels on the streetsor highways of the State or on the Interstate is not a benefit received from the State. It was a “Right” thatattached to me at the moment of my birth and cannot be removed by the State. In this respect, nobenefit has been received from the State, and thus a quasi-contractual obligation cannot exist withrespect to me.

It may be claimed that the Statutes of the General Statutes are made pursuant to the policepowers 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 theprotection of the health, the safety, the comfort and the welfare of the public. In its nature, it is broadand comprehensive. It is a necessary and salutary power, since without it, society would be at the mercyof individual interests and there would exist neither public order nor security. While this is true, it is onlya power. It is not a “Right.”

The powers of government under our system, are nowhere absolute. They are but grants ofauthority 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 ofgovernmental authority. They are subjects of individual authority. Constitutional powers can nevertranscend Constitutional “Rights.”

The police power is subject to the limitations imposed by the Constitution, and upon everypower of government and its agents; and it will not be suffered to invade or impair the fundamentalliberties of the Citizens, whose natural “Rights” that are the chief concern of the Constitution and forwhose 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 thatuse harms nobody, is a natural “Right.” It does not owe its origin to constitutions. It plainly and clearlyexisted 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, andgive our lives for.

It is not a “Right,” therefore, over which the police power is paramount. Like every otherfundamental 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 qualifiedby the obligation that the use of the property shall not be to the prejudice of others. Butif subject alone to that qualification, the Citizen is not free to use his lands and his goodsas he chooses, it is difficult to perceive wherein his “Right” of property has anyexistence. (Emphasis added). Spann v. City of Dallas, 235 S. W. 513.

Where inherent, unalienable, absolute “Rights” are concerned, the police powers can have noeffect. The “Right” to travel on the streets or highways and the “Right” to own and use property havebeen described as inherent, unalienable, and absolute. Thus, the police power cannot regulate theCitizens “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 streetsor highways, and if, through the action of these regulations or Statutes, I am denied access to the streetsor highways; a fundamental “Right” of the Citizen has been abrogated.

! Where “Rights” secured by the Constitution are involved, there can be no rulemaking 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 streetsor 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 FederalConstitution. Murdock v. Pennsylvania, 319 U.S. 105. Since a fee is charged for a driver’s license andsince one’s travels on the streets or highways is a “Right” guaranteed by the Federal Constitution, andby 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 travelwithout a license. General Statutes recognizes categories of persons who are not required to be licensedin this State. Why is it then that the first demand made by the law enforcement personnel when makinga traffic stop is: “Let’s see your driver’s license, registration, and proof of insurance,” and not alwayspolitely, when the first question should be; “What is your status and are you required to have a driver’slicense?”

Can it be, that there is a conspiracy afoot within the State, to reduce all Citizens to a status ofcontract? Why else would a law enforcement person take a Citizen to jail without even trying todiscover 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 GeneralStatutes or Code of any State. It has been shown that I have a “Right” to travel on the streets orhighways of the 50 States. So, any Statute that describes driving on the streets or highways of any givenState 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 orhighways 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 ispunishable by a fine and six months in jail, and since putting a Citizen in jail because of his use of thestreets or highways that harmed nobody, would be an abrogation of his “Right” to travel, none of theStatutes of the General Statutes apply to me. These contentions are supported by the “Supreme Courtof United States.”

! An Iowa statute that requires that every foreign corporation named in it shall as acondition for obtaining a permit to transact business in Iowa, stipulate that it will notremove into the federal court certain suits that it would by the laws of the United Stateshave a “Right” to remove, is void because it makes the “Right” to a permit dependentupon the surrender by the foreign corporation of a privilege secured to it by theConstitution and laws of the United States. BOUVIER’S LAW DICTIONARY quoting Barronv. Burnside, 121 U.S. 186.

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

Individual and a Corporation

! There is a clear distinction in this particular case, between an individual and acorporation, and that the latter has no “Right” to refuse to submit its books and papersfor an examination at the suit of the State. The individual may stand upon hisconstitutional “Rights” as a Citizen. He is entitled to carry on his private business in hisown way. His power to contract is unlimited. He owes no duty to the State or to hisneighbors to divulge his business, or to open his doors to an investigation so far as itmay tend to incriminate him. He owes no such duty to the State, since he receivesnothing therefrom, beyond the protection of his life and property. His “Rights” are suchas existed by the law of the land long antecedent to the organization of the State, andcan only be taken from him by due process of law, and in accordance with theConstitution. Among his “Rights” are a refusal to incriminate himself, and the immunityof himself and his property from arrest or seizure except under a warrant of the law. Heowes nothing to the public so long as he does not trespass upon their “Rights.” Halev. Henkel, 201 U.S. 43.

The emphasized statement is also consistent with North Carolina Statutes. In the Statute itreads:

! Common law in force.

The common law of England, as far as it is not repugnant to or inconsistent with theConstitution or laws of the United States in all cases not provided for in these compiledlaws, 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 tome that the Statutes are unconstitutional? Absolutely not. There is a class of persons to whom theseStatutes apply without reservation. Members of this class include corporations and those who do thecorporation 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 thebenefit 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 asa corporation are only preserved to it while it obeys the laws of its creation. BOUVIER’SLAW DICTIONARY, 1914 p. 684

! A Corporation is a person in the eyes of the law but it lacks character, morals, and hasno conscience. It’s every activity must be directed and supervised by the State. Underthe 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; WesternTurf Assn. v. Greenberg, 204 U.S. 359, where it was said “a corporation cannot bedeemed a Citizen within the meaning of the clause of the Constitution of the UnitedStates which protects the privileges and immunities of Citizen’s of the United Statesagainst 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 personsof which a corporation is a member. Corporations are absolutely bound by these Statutes. It isimperative that a conscienceless entity not be allowed to roam the streets or highways and jeopardizethe Citizens. It is for this purpose that the Statutes of the General Statutes were enacted and not for thecontrol 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 convictionand with full Due Process of Law, and for any City, County, or State to pretend otherwise is anabsurdity.

Thus, there can be little doubt that, when this Citizen travels upon the roadways, he does so, as a matterof “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 ofthe United States”. Let us then examine the importance of these terms to this Citizen by defining theirmeaning.

As member of the Sovereignty of the people, I not only am entitled to use the highways andbyways in the United States of America but I have the inalienable right to use those highways andbyways.

I demand all of my other rights, including the right to travel upon the public highways andbyways 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, 4 Ed., 2006 by David Herr,th

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 Hamrick5860 Wilburn RoadWilburn, Arkansas 72179Email: [email protected]

CERTIFICATE OF SERVICE

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

Don Hamrick, Petitioner, Pro Se5860 Wilburn RoadWilburn, Arkansas 72179(501) [email protected]

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plaintiff objection to motion to dismiss 06-0044

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