SPMT 421 Exam 2 Review
-November 12, 1840 - first campus shooter. UVA. Student (Joseph Semmes) killed professor (John Davis). -Texas A&M senior killed at her College Station apartment September 2016 -Florida man sits on gun, shoots himself in penis July 2017 -Handgun accidentally discharged in TAMU dorm room Sep 2017 -Sutherland Springs, Texas church members killed Nov 2017 -Los Angeles school shooting Nov 2017 -Jan 2018 school shooting in Kentucky and Texas -February 2018 school shooting in Florida -May 2018 school shooting in Santa Fe, Texas -June 2018 - more than 500 guns seized from 2 California homes -More active shootings in 2017 than any year on record
Second Amendment Incidents
Policies/Restrictions on Concealed Carry (4)
Shall Issue ----requires a license to carry a concealed handgun upon meeting criteria laid out in the law May Issue ---requires a permit and the discretion to issue a permit is partially at the discretion of local authorities Unrestricted ---permit not required No Issue ---one that does not allow a private citizen to carry a concealed handgun in public
Authority to Regulate Conduct (4)
-Most states - state legislature -State legislature - delegates to school boards -Discretionary, decision making authority may not be redelegated -Routine, ministerial functions may be redelegated
-Students and teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate (peaceful protest) -Action must be something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint (sull ross statue) -School may restrict speech at a school event
Standard of Review
State Action Analysis
State Action Analysis What is a state actor? -Texas A&M -State institution (public) What guarantees are contained in the Constitution? Is a private agency a state actor? (no but its been chipped away) What are your guarantees with a private agency? What if an agency is not clearly public or private? (gets interesting) Court has developed 3 theories/tests
-A number of states have passed anti-discrimination laws that prohibit discrimination on a number of things. (California is more protective of individual rights) -Women in particular have a better chance of succeeding on a state anti-discrimination lawsuit rather than bringing a federal civil right action (most of the states are probably more protective of the federal government so you can take it to both)
State Anti-Discrimination Statutes
Requires that the party seeking to establish state action prove that the state has so coerced or encouraged a private entity to act that the choice of that entity must be regarded as the choice of the state. -have an agency that wants to operate in the state and have to follow what the state rules (Blue Cross Blue Shield) ------insurance companies -if you don't do it then you don't get to do anything here
State Compulsion Test
EASIEST TO WIN -Rule will be invalidated unless the defendant can demonstrate that the rule is supported by a compelling state interest. -Defendant has burden of proof. Is a classification properly drawn? -Three suspect classes - (cannot discriminate against you based on: alienage, race, national origin Fundamental interests - travel, vote, etc.
Strict Scrutiny
Modes of Acquisition: (Less than Fee Simple) Easement (2 Forms)
-extending the right to certain individuals the right to use the land of another for a specific purpose -Affirmative Easement -----allows others to use the land of another -Negative Easement -----Restricts putting certain property on land (private house/student house)
Equal Protection Analysis (3)
1. Rational Basis 2. Intermediate Review 3. Strict Scrutiny
For due process, court will look at 3 Things:
1. Seriousness of the infraction 2. possible consequences to the parties in question 3. Degree of sanction or penalty imposed
Factors to Consider in Equal Protection in Sport (5)
1. State action 2. Whether the sport involves physical contact 3. Whether both sexes have an equal opportunity to participate (having girls playing football, or baseball) -------different gender practice players 4. Standing 5. Only protects against purposeful discrimination
-Guarantees basic rights that cannot be denied by governmental action unless due process is given -Concerned with the fairness or reasonableness of the rule ***** -penalty far exceeds what I did (due process exceeding) -was it fair? -Generally rules/by-laws will not be overturned unless the rule/by-law violates law or public policy
Substantive Due Process
Two Types of Due Process are:
Substantive Due Process Procedural Due Process
-Right to associate for expressive purposes is not absolute -Government may interfere if there is a compelling state interest (if they have a good reason) -State must balance a club member's fundamental rights of association with another person's fundamental right to be free from unlawful discrimination.
Balancing Freedom of Association with Anti-Discrimination
Intended or known to cause death or serious bodily injury
Deadly Force
Supreme Court Cases: -Right is not an unlimited right. We find that they guarantee the individual right to possess and carry weapons in case of confrontation. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Justice Antonio Scalia
District of Columbia v. Heller
Court must first find the defendant to be a state actor Plaintiff cannot be denied life, liberty, or property without ______ How much process was due?
Due Process
Constitutional Valid Conduct Rule (3)
Due Process Clause Equal Protection Clause Freedom of Speech and Religion
Purpose - To prevent athletic transfers from one school to another. Rule - All transfer students from public schools shall not be eligible for interscholastic competition for one year from date of transfer. (what about academic? what about if your family moves? what if private school?)
Transfer Rule
California is more protective of individual rights (T/F)
True
Student initiated prayer is okay (T/F)
True
The Supreme Court has not ruled on whether or not the Second Amendment protects the right to carry guns in public for self defense. (T/F)
True
-Get their authority through a combination of federal, state, local legislation and court cases -Courts generally reluctant to review decisions: UNLESS!!! -Exceeding authority -Violating own rules -Arbitrary and Capricious standard Federal and State constitutional violations
Voluntary Sport/Rec Associations
Modes of Acquisition: Less than Fee Simple (3)
Easement Lease Cooperative Agreement
-If $$$ damages are sought and $$$ would come from the state treasury, public institution/organization will be immune from suit unless the state has expressly or implicitly consented to suit -Local governments - school boards, cities, and counties - are not immune under the 11th Amendment
Eleventh Amendment Immunity
High School Privilege -------Academic standards, transfer rules, redshirting, age limitation rules Intercollegiate Regulations -----Academic regulations, transfer rules, longevity, challenges
Eligibility Issues
-Constitutional method of checking on the FAIRNESS OF THE RULE. -EX: Louisiana rule saying that immigrants aren't allowed to play sport -Requires that no person be singled out from similarly situated people to have different benefits bestowed or burdens imposed unless a constitutionally permissible reason exists for doing so. -has to be a reason for what you did
Equal Protection
-What is the middle ground between the establishment of religion and allowance for freedom of speech? -Nonsectarian and nonproselytizing STUDENT-INITIATED PRAYER IS A SAFE HAVEN -Freedom of speech clause does not permit suppression of student-initiated prayer
Establishment Clause v. Freedom of Speech
2 Types of Rights in Real Property
Fee Simple Absolute ----landowner has complete control over the property within the limits of the law ----Can exclude others and contract away rights Less than fee simple ----use of property that is generally based on contract ----Ex: easements, leases, use permits, joint use of cooperative agreements ----Common in recreation, sport and leisure services
-Establishes the freedom of speech, freedom of press, freedom of religion and freedom of association. -One of the most litigated Amendments to the U.S. Constitution primarily due to the language protecting the above freedoms. -Freedoms are not set in stone
First Amendment
Not known to cause death or serious bodily injury
Force
-Embraces two concepts - freedom to believe and freedom to act -Freedom to believe is absolute -Freedom to act is not absolute but must have appropriate definition to preserve the enforcement of that protection although the power to regulate must be so exercised as not unduly infringe the protected freedom of others (limits of what you can do)
Free Exercise Clause
-Initial burden is on the plaintiff that his/her speech was constitutionally protected -Plaintiff must demonstrate that speech was a substantial/motivating factor in the government's decision -Burden shifts to the government to establish by a preponderance of the evidence that same decision would have been reached
Free Speech Cause of Action
-In most cases discrimination is legal with private clubs (have to meet all of the specifications set up, (sororities don't have to admit guys, you can exclude based on gender) -Citizens of the US have the freedom to _______ with persons of their choice w/o government intervention or interference -includes the right not to associate with certain people (if you have legitimate criteria for not associating with certain people) -Not an enumerated right in the Constitution but a right recognized under the concept of liberty -Protected under the 1st and 14th Amendments in two ways
Freedom of Association
-Conflict between the Establishment Clause and the Free Exercise Clause _Establishment Clause - prohibits Congress or the states from making any law establishing or promoting a religion -Free Exercise Clause - prohibits Congress or the states from making any law interfering with the free exercise of religion
Freedom of Religion
-Contained in the Establishment Clause of the First Amendment -Considered to be absolute - speak, remain silent, discuss with others, advocate ideas -Does not protect the following categories of speech - defamation, obscenity, fighting words, and words that create a clear and present danger
Freedom of Speech
-Has no significance independent of the speech clause. (2nd and 10th amendment) -Is the content protected under the First Amendment? -What is the nature of the speech? Is it protected, is it commercial or is it unprotected? -Higher the value, the greater the protection What is the nature of the medium? -PRINT MEDIUM has highest level of protection and broadcasting the least.
Freedom of the Press
Application of State Action (Look At)
High School Athletic Associations - yes -----UIL as a state actor (slide) College Conferences - maybe -----one private school in SEC National Organizations Governing College Athletics - no (NCAA has been deemed as not a state actor) Organizations created by governments - no (olympic stuff - private) Recreational clubs - maybe (if they get a private organization that comes in they might be) Professional Sport Leagues - no (not a state actor)
-Protects government officials in the exercise of discretionary authority -Objective reasonableness test - burdens of trial/personal liability not imposed on governmental official in exercising discretionary authority unless conduct violates statutory or constitutional rights that a reasonable person would have known.
Qualified Immunity
-VERY DIFFICULT TO WIN -Rule must have a rational relationship to a legitimate purpose -Difficult for the plaintiff to win -Most commonly applied constitutional standard -Used for transfer rules, age limitation rules, semester limitation rules, grade rules, etc.
Rational Basis Test
-Land and generally any structure that is affixed to, erected on, or growing on the land
Real Property
Property Law
Real Property -----rights of real property -----modes of acquisition -----Land use controls Recreational User Statutes ----General Characteristics ----Two-pronged analysis of applicability Nuisance Law ----Public nuisance ----Private nuisance ----Attractive nuisance
-Legislative acts that are established in all states for the purpose of protecting landowners from liability if they permit the public to use their property for recreation at no cost to the user
Recreational User Statues
-Offering a prayer when there is no reference to deity is not necessarily religious entanglement. One prayer, any prayer, does not necessarily endorse religion. -Religion is not irrelevant to education. However, the teaching of religion by educators is forbidden under entanglement theory. (talking about it is okay in class)
Religion v. Prayer
Policies/Restriction on Concealed Carry government buildings like post offices, designated restricted areas on educational institutions and sporting event venues
Restricted Premises
-The Constitutional Amendment, ratified with the Bill of Rights in 1791, guarantees the right to keep and bear arms as necessary for securing freedom through a well-regulated militia. -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. United States Constitution, Amendment II.
Second Amendment
Knives, machetes, swords - typically 3 to 4 inches and longer Batons, night sticks Pipes Plastic guns Grenades Homemade bombs Pepper Spray
Weapons
Two-Pronged Analysis
-Does the recreational user statute apply and is the defendant entitled to immunity -Recreational Activity -----Majority of states use the phrase "included but not limited to" Is land Suitable for the activity?
To Succeed on a federal constitutional claim, one must show the following: (3)
- State action exists - Claim is not frivolous - Right of sufficient importance to be litigated in federal court
Recreational User Statute General Characteristics (4)
-Applies only to the owner of the land -landowner cannot charge a fee -used for recreational purpose -obligation of the landowner
-Owners and operators of places of public accommodation must make reasonable accommodations to individuals with disabilities to participate equally in the goods, services and accommodations provided by the establishment. -There is an exemption for private clubs and religious organizations.
Americans with Disabilities Act
-Truly private organization will generally be exempt from most federal and state anti-discrimination laws. -Civil Rights Act of 1964 - Titles II and VII -Americans with Disabilities Act -State Anti-Discrimination Statutes
Anti-Discrimination Legislation
-Focused on children entering property because they are attracted by a unique, artificial condition- swimming pool, trampoline for example -To apply - (1)owner of the artificial condition should know or have reason to know that children are likely to trespass the premises; (2) landowner should know or have reason to know that the condition will involve an unreasonable risk to trespassing children and children will not realize this danger; and (3) burden of eliminating the condition is minimal to the landowner yet he or she fails to protect children from the burden
Attractive Nuisance
Can refer to different actions depending on the jurisdiction. May include printing, pulling back clothing to expose a gun or exhibiting a gun in your hand -The intent to intimidate or threaten someone may or may not be legally required to be considered __________
Brandishing
-Deals with discrimination in an employment setting for governmental agencies, labor unions and employers with 15 or more employees -Makes an exception for bona fide private membership club -Club in the ordinary sense of the word, private, and has meaningful conditions of limited membership
Civil Rights Act of 1964 Title VII
-Place of public accommodation -Athletic facilities are places of public accommodation -Truly private - genuine selectivity , membership's control over the operations, , history, use of facilities by nonmembers, purpose, advertises, profit or nonprofit, formalities observed
Civil Rights Act of 1964 Title II
-Concealed weapons bans were passed in Kentucky and Louisiana in 1813 because this was denounced as a practice of criminals -End of 19th Century - similar laws passed in a least 8 other states primarily those in the South and Midwest -Mid 1900s - most states had passed concealed weapons laws -Currently no federal law prohibiting the issuance of concealed- carry permits SOME STATES WILL ALLOW YOU TO HAVE A WEAPON IN YOUR BAG AS LONG AS ITS UNCHAMBERED AND ON SAFETY
Concealed Carry
In essence, concealed carry is the carrying of a firearm on one's person that is concealed either in a bag, purse or underneath one's clothing.
Concealed Carry
-Once category is determined, apply STANDARD OF REVIEW -BALANCE COMPETING CONSTITUTIONAL RIGHT OF INDIVIDUAL AND STATE INTEREST -Consider the MEDIUM used -------Newspapers = more protection, -------radio or tv personnel has less protection
Factors Determining Protection
-GENERALLY THE BIGGEST GROUP -FORMER STUDENTS COMING TO A&M ALLOWED TO EXCLUDE UT FORMER STUDENTS -Not expressly stated in the Constitution but interpreted by the Supreme Court to allow this. -Characterized by the size of the group, its purpose, its policies, its selectivity and congeniality. -Receives the highest degree of protection Seldom relevant for private golf or country clubs (generally open to the public, if you got a restaurant or bar and let everyone in there, you have to open up your criteria to the entire public)
Expressive Association
-MIGHT WIN MIGHT NOT -Requires that rules classifying certain groups satisfy an important but not necessarily a compelling interest -Generally applied with issues involving contact sports, scheduling athletic contests, workplace discrimination -Two classifications ------Gender ------Illegitimacy
Intermediate Test
-Originates from the right to privacy implied in the Due Process Clause of the 14th Amendment -Characterized by its relative smallness, high degree of selectivity and seclusion of others. -Been used to describe intimate family matters but also some relationships outside of the family -FAMILY REUNIONS, SIGNIFICANT OTHERS, RIGHT TO YOUR GROUP
Intimate Association
-Examine whether the state's involvement or entanglement with a private actor's conduct is sufficient to transform the private conduct into state action. -lawyers trying to attack NFL (NFL is private and all teams are but they play in the public domain) - they are not a state actor -there are rules and regulations they have to follow in the public -Neither state funding or state regulation alone are enough to command state action determination -There must be significant joint participation between the state and the private party
Nexus or Entanglement Theory
-Rule must govern conduct which directly affects the operation of the school -Rule must not be arbitrary or unreasonable
Non-Constituational- Reasonably related
Enacted by US Congress in 2004 and allows two classes of persons - the qualified law enforcement officer and the qualified retired law enforcement officer - to carry a concealed firearm in any US jurisdiction regardless of any state or local law to the contrary with certain exceptions.
Law Enforcement Officers Safety Act
2 Standards for Valid Conduct Rules
Non-Constitutional - Reasonably related Constitutional
The Establishment Clause (3 Tests)
Lemon Test ------Secular, neither advances nor inhibits religion, no excessive government entanglement The Coercion Test ------Govt directs a formal religious exercise to oblige the participation of objectors The Endorsement Test ------Favored, preferred or promoted (cannot do this)
Due Process Interests (3)
Liberty ----reputation is damaged. Cannot take advantage of other opportunities. Stigma-plus test Life -kill Property ---Rules, practices or policies create a claim of entitlement (very clearly spelled out in contract)
Graduation Ceremonies v. Extracurricular Activities
Limited open forum theory -----some governmental intent to open the event to the public. Govt cannot discriminate against speech even if religious
Extended that right to state and local gun control laws and not just federal laws.
McDonald v. City of Chicago
-vehicle for which eminent domain is generally exercised -Only appropriate when the use of the property will be public, public interests require it and the property being condemned is necessary to accomplish a public purpose -Owners complain about getting just compensation
Modes of Acquisition (Fee Simple Absolute) Condemnation
power of the government to take private property -cannot occur without fair and just compensation to the owner
Modes of Acquisition (Fee simple Absolute) Eminent Domain
-Squatters rights (live on land and don't pay anything with the land) -transfer of property ownership over time in actual, hostile, open, continuous and exclusive manner -prevents property owners from sleeping on their property rights
Modes of Acquisition (Fee simple absolute) Adverse Possession
-May have mandatory or statutory dedication -Requires developers to set aside a portion of their development for public use -Can also be voluntary -----intention of the owner to dedicate -----Acceptance by the public (dedicate it and it HAS to go to where they dedicate it, no exceptions)
Modes of Acquisition (Fee simple absolute) Dedication
---Can have some restrictions ---Can be made outright, part of an annuity plan or as a result of an individual's will (giving your property to TAMU...TAMU will take it and cut a deal with you, as long as you are alive it is free)
Modes of Acquisition (Fee simple absolute) Gifts
---most common code of getting property ---Pay fair market value
Modes of Acquisition (Fee simple absolute) Purchase
-Frequently used to allow two organizations to use the same facilities (ice hockey under basketball court floor)
Modes of Acquisition (Less than fee simple) Cooperative Agreements
-used extensively in sport and recreation situations and are common method of acquiring the use of land or buildings for a specified length of time
Modes of Acquisition (Less than fee simple) Leases
-Deals with activity or use of one's property that produces material annoyance, inconvenience, and discomfort for those around the property -Have three types of nuisance- public, private and attractive
Nuisance Law
-Over 300 million firearms in the US about equally split between handguns, shotguns and rifles -California - most restrictive gun laws; Arizona the weakest -Households owning a firearm - Alaska 62% Delaware 5% -Gun related death rate per 100T - Louisiana 19% Hawaii 3% -More gun related deaths in the Southern states -Americans own almost half of the world's billion guns
One Nation Up in Arms
-Has been an implied right since the passage of the Second Amendment and the recent Supreme Court cases. -Question - what about security? (either non-commissioned/commissioned officers) -Certain categories of persons are PROHIBITED from carrying a firearm: -----Felons -----Convicted of domestic violence -----Addicted to alcohol or drugs -----Involuntarily committed to a mental institution -----Dishonorably discharged from the United States Armed Forces
Open Carry
Varies by state. Act of publicly carrying a firearm on one's person in plain sight. Plain sight is broadly defined as not being hidden from common observation.
Open Carry
-Currently no states allow open carry except by authorized federal ,state or local law enforcement officials -Currently 10 states allow concealed firearms carry on campus: Arkansas, Colorado, Idaho, Kansas, Mississippi, Oregon, Tennessee, Texas, Utah and Wisconsin -Currently approximately 18 states ban carrying a concealed weapon on campus -In approximately 23 states, the decision is left to each college or university -In some states students are not allowed to carry weapons - Arkansas and Tennessee, for example
Open/Concealed Carry on College and University Campuses
-Exists when a rule creates a class more extensive than necessary to effectuate the purpose of the rule or when a class does not contain all the members necessary to effectuate the rule's purpose (not going to allow transfers for athletic reasons, academic reasons?) -Will be allowed if rule & purpose are rational -Almost impossible to create perfect classifications
Over/Under Inclusiveness
Real Property Fee Simple Absolute Modes of Acquisiton (6)
Purchase Gifts Dedication Eminent Domain Condemnation Adverse Possession
Shape or outline of a firearm is visible through a garment while the gun is still fully covered and is generally not desired when carrying a concealed weapon
Printing
-Look to the terms of your CONTRACT -------Whether or not you have a property interest Look to the termination procedures contained in the employee handbook ---Procedures should be clearly spelled out ---Most will not differ significantly from constitutional protections
Private Agency
non-trespassory invasion of another's interest in the private use and enjoyment of land -plaintiffs must present evidence showing an injury specific to the use and enjoyment of his or her land -Primary factors - gravity of harm to the plaintiff, the value of the defendant's activity to the community, burden placed on defendant if particular remedy is granted, and whether defendant's activity was in progress when plaintiff arrived at the locality
Private Nuisance
- Dispute over the procedures -----not the substitute due process - ARE THE PROCEDURES FAIR? -Title IX - wants schools to get involved and have the accused and the accuser to sit down and have a quasi trial -Procedures should contain - written notice, time/date of hearing, representation might be possible, case heard by an impartial panel, negotiate settlement, written decision, record proceedings and make available to parties, go to court. (anything you said can be used against you) -preserve your right to go to court
Procedural Due Process
undergoes strict scrutiny. Example is political speech and speech critical of government policies. Less protected would be advertising which undergoes an intermediate level of scrutiny.
Protected Speech
-Can be state action in the activities of a private party if that party undertakes functions or assumes powers that the govt ordinarily performs or exercises (frequently happens when you have a public golf course and bring in a private company to run the golf course, running something that belongs to the state) -you are taking over a public function -Activities involve a function that is traditionally performed only by the govt or function substantially replaces govt traditional performance of function
Public Function Theory
3 State Action Tests
Public Function Theory Nexus or Entanglement Theory State Compulsion Test
-Acts that obstruct the enjoyment or use of common property or cause inconvenience or damage to the public -Exists if the following criteria are present: ------condition complained of has a natural tendency to create a danger or inflict injury on the person or property ------Danger created is a continuing one -----Use of the land is unreasonable or unlawful -----the condition interferes with a common right to the general public
Public Nuisance
-initially applied to water and submerged lands under navigable waters -main purpose is the idea that certain natural resources belong to the public and should be preserved for the good of society
Public Trust Doctrine
Land Use Controls (2)
Public Trust Doctrine Zoning
Three Classifications of Limited Open Forum Theory
Traditional Public Public Created By Governmental Designation Nonpublic
-Dividing a municipality into geographical districts or zones and then regulating the nature and use of the land in various zones. Control of activities and use of property are central to the issue of zoning
Zoning
All 50 states have passed laws allowing qualified individuals to carry certain __________________ in public either w/o a permit or after getting a permit from a designated government authority at the state and/or local level.
concealed firearms
45 states constitutions allow ________ with few or no restrictions. US citizens, permanent resident aliens, and certain non-immigrant aliens are allowed to carry weapons subject to conditions imposed by the applicable state
open carry
