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Religious Freedom

 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” - 1st Amendment

 

The first clause in the First Amendment to the U.S. Constitution protects the individual’s right to freely practice his or her religion and prevents the government from establishing a religion*.  This clause is broken down into two sub-clauses: the “Establishment Clause” and the “Free Exercise Clause.”  According to U.S. Supreme Court precedent, when a government entity appears to be favoring one religion over another (or favoring religion over non-belief), it has violated the Establishment Clause.  Likewise, when the government prevents an individual from practicing his or her religion by creating adverse consequences, then it may have violated the Free Exercise Clause.

 

While this appears simple enough, decades of litigation begun in earnest in the 1940’s, has muddied the waters with a plethora of U.S. Supreme Court cases and doctrines.  In addition, Congress has passed legislation (itself subjected to U.S. Supreme Court decisions limiting the scope of the statute) to clarify religious rights.  While some cases make the national news (such as the Little Sisters of the Poor and Hobby Lobby’s suits regarding funding of certain parts of objectionable health plans under the Affordable Care Act), most litigation revolves around much more local concerns.  For example, cases arise in which public schools prohibit a student from presenting the Bible at show-and-tell, a high school football team says a prayer before the championship game, a Bible study group is denied the use of municipal property for meetings, or a municipality denies a Nativity display on public grounds.

 

* While there is some scholarly debate about what the original intent of the Establishment Clause was, a long line of U.S. Supreme Court precedent has led to the interpretation that no level of government may appear to be favoring one religion over another, or even religion over atheism or agnosticism.  Thus, while the Constitution states that Congress shall make no law respecting an establishment of religion, the legal interpretation is that this prevents favoring religion.

 

If you believe that your religious rights may have been violated, call THOMPSON LAW OFFICES today at (888) 866-6947 for a FREE CONSULT and case analysis.  Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

Freedom of Speech

 

“Congress shall make no law . . . abridging the freedom of speech, or of the press . . .”  - 1st Amendment

 

At first glance, one may be inclined to agree with Justice Hugo Black in that the First Amendment is pretty clear: “no law” abridging speech or the press “means no law.”  But over a century of U.S. Supreme Court decisions has allowed the government to pass some laws abridging the freedom of speech and of the press (in fact, there was a recent attempt in Congress to define “the press,” which ultimately failed).  Some of those restrictions include obscene speech (vaguely defined, but receiving no constitutional protection), so-called “fighting words,” and incitement to violence.  Other restrictions on speech include “time, place, and manner restrictions,” overlapping the Freedom of Assembly, which is often closely associated with the Freedom of Speech via protests and marches.

On the other hand, the government is prevented from favoring any particular viewpoint (generally speaking).  And while the government typically cannot prevent speech altogether, there are certain areas where the government can prevent speech (the infamous “free speech zones” at political rallies, at government owned property not deemed a “public forum,” etc).

 

Like religion, there are several high-profile free speech cases.  However, also like religious cases, much of the litigation here occurs amongst the lower courts.  It is important to remember that, like the entire Bill of Rights, the First Amendment’s provisions apply only to the government.  Your employer may restrict your ability to speak, both on the job and outside of work (there are special provisions for government employees) and private entities can limit your speech and can favor one view over another.

 

If you believe that your free speech rights may have been violated, call THOMPSON LAW OFFICES today at (888) 866-6947 for a FREE CONSULT and case analysis.  Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

Freedom of Assembly

 

“Congress shall pass no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – 1st Amendment

 

The Freedom of Assembly is closely tied to the Freedom of Speech, as citizens typically assemble to exercise their freedom of speech and to “petition the Government for a redress of grievances.”  However, like the Freedom of Speech, the U.S. Supreme Court has recognized limitations on this right.  Thus, the government may apply some restrictions as to the “time, place and manner” of the assemblies.  This is why it is legal for your municipality to require a permit for parades and large activities or protests in public areas like public parks.

 

However, while the government may restrict the time, the place, and the manner of the protest (for example, it could deny a fireworks display in a small city park due to safety concerns), it cannot discriminate as to the point of views being expressed (it could not deny a pro-firearms group the right to protest new firearms restrictions).  For example, a municipality could not allow an anti-war parade while denying a pro-war parade.

 

If you believe that your right to freely assemble may have been violated, call THOMPSON LAW OFFICES today at (888) 866-6947 for a FREE CONSULT and case analysis.  Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

Right to Keep and Bear Arms

 

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” – 2nd Amendment

 

The Second Amendment to the U.S. Constitution is one of the most volatile issues in Constitutional Law (and in society) today.  The Second Amendment, as currently interpreted by the Third Circuit (which controls New Jersey), protects the individual’s right to keep arms for self-defense in the home.  While the Amendment states (and the U.S. Supreme Court has ruled) that all persons have the right to keep and bear arms, the Third Circuit currently interprets this to mean “keep and bear in the home for self-defense.”  Thus, the Third Circuit has allowed the three states within its jurisdiction (New Jersey, Pennsylvania, and Delaware) to decide for themselves whether to allow their citizens to carry firearms outside the home.  As a general matter, New Jersey does not.

 

New Jersey, likewise, severely limits the interpretation of the Second Amendment, offering some of the most severe restrictions on firearms in the nation.  For example, New Jersey’s “justifiable need” requirement for concealed carry permits (and lack of constitutional or open carry provisions) effectively acts as a prohibition of carrying firearms in public. New Jersey also does not recognize any handguns as “antique,” meaning there are no legal distinctions between a flintlock pistol and a Glock, limits the number of handguns an individual can purchase in a particular time frame, and drastically limits the places in which you can legally transport a firearm.

 

If you believe that your Second Amendment rights have been violated, call THOMPSON LAW OFFICES, LLC today at (888) 866-6947.

 

Due to the unique nature of these consultations, a consultation fee is charged.  If Thompson Law Offices agrees to take your case, the consultation fee may be applied to any fees or costs included in the litigation.  **NOTE: All litigation fees and expenses will be addressed in a fee agreement in the event that Thompson Law Offices takes your case and no representation here is made of any particular fee arrangement**

 

Unlawful Search and Seizure

 

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – 4th Amendment

 

One of the most litigated types of constitutional law is the unlawful search or seizure of a person or property.  The 4th Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures by the government.  The courts have produced a significant amount of case law defining the ins and outs of what is reasonable and unreasonable when police officers and other government officials conduct searches or seize an individual or property.  If the police possess a valid warrant, chances are high that the search is considered reasonable under the Constitution.

 

However, even in circumstances in which an officer does not have a warrant, the courts have produced a significant number of scenarios in which they are willing to consider a search “reasonable.”  Generally speaking, these are considered “exigency exceptions,” based on officer safety or destruction of evidence.  Both of these exceptions include various sub-categories of exceptions and all have particular factors and circumstances that must be met in order for the search or seizure to be considered reasonable.

 

If you believe your rights against unreasonable search and seizure have been violated, call THOMPSON LAW OFFICES, LLC today at (888) 866-6947 for a FREE CONSULT and case analysis.  Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

Excessive Force

 

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – 4th Amendment

 

Since 1989, the Supreme Court of the United States has held that the excessive use of force by police officers constitutes a violation of the 4th Amendment on the grounds that a search or seizure effected by force greater than necessary is unreasonable.  Of course, whenever an arrest occurs, there is some force required, especially if the suspect being arrested is not being cooperative.  In order for police officers to have violated your rights by using force, the force required must be excessive.  This, unfortunately, is often subjective, with each case involving different circumstances.  In addition, because events tend to happen quickly and involve confrontation and a heated environment, the courts tend to give deference to the actions of police officers.

 

However, there are certainly instances in which the force used was objectively unreasonable.  A successful case for excessive force takes a knowledge and understanding of the history of this type of case in the district and appeals courts.  Likewise, excessive force cases are typically brought against individual police officers and can garner media attention.  Thus, it is imperative that your case has been thoroughly evaluated before moving forward.

 

If you believe you have been the victim of excessive force call THOMPSON LAW OFFICES, LLC today at (888) 866-6947 for a FREE CONSULT and case analysis.  Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

Due Process

 

“No person shall be . . .  deprived of life, liberty, or property, without due process of law.”  - 5th Amendment/14th Amendment

 

One of the hallmarks of the American legal system is that the government cannot take away an individual’s life, liberty, or property without due process of law.  This means that an individual must be provided with notice that the government intends to deprive him of something in which he has a liberty or property interest in and the individual must be given a hearing before the liberty or property right is taken away (in all but some emergency situations).  As a general matter, an individual possesses a property interest in anything he owns or possesses, including benefits, licenses, and permits issued by the government.  While these things can be taken away or revoked (such as drivers permits or firearms permits), the state must offer reasons why and provide notice and an opportunity to be heard to the individual.

 

Likewise, an individual possess liberty interests in many things, most notably family interests and “freedom from official stigmatization,” in which the government places a significant stigma upon the individual.  One example of this is an involuntary mental health commitment.  Not only is the individual physically detained for a period of time, the stigma of a mental health commitment can last a lifetime and significantly impair an individual socially and economically (as well as carrying with it legal ramifications).  Thus, in order to deprive an individual of his good name, so to speak, or any other liberty interest, the government must provide notice and opportunity.

 

If you believe you have been unconstitutionally deprived of your liberty or property rights, contact THOMPSON LAW OFFICES, LLC today at (888) 866-6947 for a FREE CONSULT.   Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

Eminent Domain

 

“…nor shall private property be taken for public use, without just compensation.” – 5th Amendment

 

Eminent domain was not considered a very big constitutional issue until relatively recently.  In 2005, the U.S. Supreme Court decided Kelo v. City of New London, in which a Connecticut municipality seized several properties, including the property of an elderly woman who had spent her entire life in the same house.  The city had devised a plan in which some property would be used for a waterfront promenade, while other plots would be transferred to a large pharmaceutical company.  While the city had suffered hard economic times and much of the property along the waterfront was vacant or blighted, the properties at the heart of this lawsuit were well maintained (the city did not claim they were blighted).  Rather, the properties happened to be situated in a rundown part of the town, in the middle of the proposed economic redevelopment plan.  In a very controversial decision, the Supreme Court ruled that the properties could be seized under eminent domain and then passed along to a private company, since the private company (and plan in general) would increase the tax revenue of the city and, as such, provided a “public purpose.”

 

Careful readers will have noticed that the 5th Amendment provides for “public use,” but the Supreme Court allowed the seizure for a “public purpose.”  These are two very different things.  A public “use” is, by definition, something in which the public can use, i.e. schools, roads, municipal buildings, parks, etc.  A public “purpose,” on the other hand, is vague and, indeed, can be seen as including any activity that increases the city’s tax revenue.  Because of the relatively unlimited scope of the ruling, many states quickly enacted laws limiting the state use of eminent domain.  However, the Court’s precedent in Kelo (and other decisions, prior to Kelo) do not offer much protection for private property beyond what a state is willing to offer.

 

In addition, the Court has recognized other types of property seizures.  Has your land been re-zoned so that it can no longer be used for its intended purpose?  It may be the subject of a regulatory seizure, in which the government effectively seizes your property via regulation.  For example, the Court has found that prohibiting building on certain types of property, like wetlands, can be considered a taking, subject to the payment of just compensation.

 

If your property is being seized by a government entity, call THOMPSON LAW OFFICES, LLC today at (888) 866-6947 for a FREE CONSULT.  Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

Equal Protection

 

“ . . . nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.”

– 14th Amendment

 

The 14th Amendment demands that individuals in similar circumstances be treated similarly under the law.  Failure to do so may violate what has become known as the “Equal Protection Clause” of the 14th Amendment to the U.S. Constitution.

 

However, as with most of the rights under the Constitution, the U.S. Supreme Court has modified the original meaning through its interpretation in various cases.  The courts are primarily concerned with the equal protection of classes of individuals.

 

Of course, all laws tend to discriminate against particular classes of individuals.  Elderly benefits apply only to senior citizens, individuals must be 18 years old to vote, and must be 21 years old to drink alcoholic beverages, yet none of these violate the Equal Protection Clause.  Thus, the classification and the effect of the laws are critical to an Equal Protection claim.

 

Any government classification based on race is closely scrutinized by the courts and there are few racial classifications that survive an Equal Protection challenge.  Classifications based on gender and sexual orientation are, in theory, less closely scrutinized.  Other classifications are only cursorily scrutinized.

 

If you believe that your right to be treated equally under the law has been violated, call THOMPSON LAW OFFICES, LLC today at (888) 866-6947 for a FREE CONSULT.  Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

Cruel & Unusual Punishment

 

“. . . nor [shall] cruel and unusual punishments inflicted.” – 8th Amendment

 

The 8th Amendment prohibits the cruel and unusual punishment of individuals in government custody.  Courts have developed a doctrine called “deliberate indifference” in which to analyze cruel and unusual punishment claims of individuals in custody.  In order for treatment to be considered “deliberate indifference,” the treatment must be beyond mere negligence.  Generally speaking, acts that obviously ignore signs of danger or other warnings that harm is likely can be viewed as “deliberately indifferent.”

 

As with many constitutional rights, the courts have modified and interpreted the meaning of “cruel and unusual punishment.”  Each court differs somewhat in how it interprets Supreme Court precedence, so a knowledge of the circuit court’s prior decisions is vital in presenting a successful case.

 

If you believe that your right to be free from cruel and unusual punishment has been violated, call THOMPSON LAW OFFICES, LLC today at (888) 866-6947 for a FREE CONSULT.  Mr. Thompson will review your case, discuss the relevant legal principles, and inform you how those principles apply to your case.

 

 

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