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September 25, 2022

A civics lesson on the importance of Due Process during an emergency – coming to courtrooms across the country

By Kirk Allen & John Kraft

On March 29, 2020

(ECWd) –

We addressed the basic Due Process issue during emergencies in this article.

Our 5th Amendment of the US Constitution protects us from being deprived of life, liberty, or property, without due process of law.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

We should note that it does not provide exceptions for due processes, such as during an emergency.

Most know it is not legal for the police to stop a vehicle just because they see an out of state license plate.

“Rhode Island police began stopping cars with New York plates Friday.”Bloomberg News

“Yesterday I announced and today I reiterated: Anyone coming to Rhode Island in any way from New York must be quarantined,” the governor said. “By order. Will be enforced. Enforceable by law.”Bloomberg News

Just like we pointed out in our Illinois law in this article, Rhode Island also has provisions that point to a due process and by all indications those processes are going to be ignored by the Rhode Island Governor. ”

“..determines, upon investigation, that a threat to the public health exists because any person is suffering, or appears to be suffering, from a communicable disease..”

“A person subject to quarantine under this section shall be entitled to file a petition for relief from such order at any time, included, but not limited to, a petition based upon compliance with a treatment under less restrictive alternatives.”  – Rhode Island Quarantine law

Where is the probable cause to stop a vehicle just because it has a New York license plate?  Does she not know there are rental cars in other states that have New York license plates?  Under her policy, a person who happens to fly into Rhode Island and rented a car that happened to have a New York license plate would be quarantined. Never mind the quarantined requirement that an investigation must show evidence that the traveler is suffering or appears to be suffering from a communicable disease.

The Rhode Island Governor’s actions appear to be a clear violation of people’s due process rights.  New York Governor Andrew Cuomo has now threatened to sue over the Rhode Island policy and we believe he would win, provided the particular judge hearing the case actually understands due process rights.

“New York Gov. Andrew Cuomo (D) said Saturday that if Rhode Island does not roll back its new policy of stopping vehicles with New York license plates and collecting information about New Yorkers who have entered the Ocean State, he would sue.  “If they uphold that policy, I’m going to sue,” he told CNN on Saturday” –The Hill

Another part of our due process rights deals with the 2nd Amendment and our right to bear arms for self-protection. That right shall never be infringed upon, especially during an emergency where we even see an entire Police Department shut down.

Numerous Democrat Governors across the country abused their emergency powers and declared gun sales as non-essential.  To our surprise, Illinois was not one of those.  Illinois Governor Pritzker actually did the right thing and recognized the people’s Constitutional rights, which we covered in this article.

California Governor Gavin Newsom and other state officials are now facing a Federal Lawsuit brought by the National Rifle Association and several other gun-owner groups and Second Amendment groups due to the Governor’s executive order.

“In addition to Newsom, other defendants listed in the suit include California Department of Public Health Director Dr. Sonia Angell, Los Angeles County Sheriff Alex Villanueva, and Los Angeles County Public Health Director Dr. Barbara Ferrer.” The Mercury News

“The suit came after Villanueva announced Thursday that due to Newsom’s executive order, all gun and ammunition stores in Los Angeles County are not considered essential businesses and must close to the general public.”  The Mercury New

We suspect similar law suits will follow in the other states doing the same as California did.

More often than not, when an emergency is declared we see those in power try to take advantage of the situation in some fashion from pushing an ideological agenda, to profiting from the crisis.  Regardless, We The People have a Constitutional Rights that require due process.

During an emergency, those due process rights are more important than most people understand.  Our own history points to the improper gathering up of Japaneese Americans

“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority,” he wrote. Citing language used by then-Justice Robert H. Jackson in a dissent to the 1944 ruling, Chief Justice Roberts added, “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution.’”

We suspect when this crisis passes we are going to see lawsuits across the country for actions taken by the government that clearly have violated peoples due process rights as well as Governors invoking powers they were never given by law.

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4 Comments
  • A. Lincoln
    Posted at 12:52h, 29 March

    One of Kirk’s best articles among many.

    Notwithstanding, I am compelled to comment on The Hill article quoting Governor Andrew Cuomo’s statement: New York Gov. Andrew Cuomo (D) said Saturday that if Rhode Island does not roll back its new policy of stopping vehicles with New York license plates and collecting information about New Yorkers who have entered the Ocean State, he would sue.  “If they uphold that policy, I’m going to sue,” he told CNN on Saturday” –The Hill

    This is simply campaigning for the 2020 Democratic Presidential Nomination. Governor Cuomo wants to appear as a champion of the citizen’s Bill of Rights, Due Process and the Constitution. Governor Cuomo is just the opposite (e.g. his unwavering support for heavy-duty gun control and gun confiscation in New York.)

    Supreme Court Justice Antonin Scalia opined in his dissent from MORRISON V. OLSON (1988):

    “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”

    Governor Cuomo also comes as a wolf.

    • Finchetti
      Posted at 19:43h, 29 March

      A beautiful appraisal of our current plight. The fragility and rottenness of the entire country and its various levels of governments will now be on display.

  • James J. Pancrazio
    Posted at 08:56h, 30 March

    It never hurts to take a look at how the cornavius crisis has been managed and mismanaged outside of our country. Once the Italian prime minister Conte announced that Milan was going to be declared a “protected zone” or “red zone,” people in Milan fled south. Two weeks later, Calabria and Sicily in the south are looking at souring numbers of infected people. 15 towns in Calabria are on lockdown. Now New Yorkers are doing the same thing, extending the spread and endangering the lives of others.

    • Kirk Allen
      Posted at 09:17h, 30 March

      Most governors have power to control ingress and degress. Check points can prevent a spread but it has to be done within the confines of our laws and must never be allowed to trample our rights. This country is rapidly finding out what happens when a politition tries to manage an emergency rather than those experienced in such a situation.

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