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Old 02-19-2018, 12:06 PM
alterego alterego is offline
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Suing the USA for gross negligence in ensuring our inalienable rights

To start: IMNAL.

Here in the US, we have "inalienable rights." These "rights" may be more of just a "spirit of America" kind of thing, but they may have some legal foundation as well due to precedent. According to the Declaration of Independence, we have the right to life, liberty and the pursuit of happiness.

In some cases people are prevented from exercising these rights due to insults acquired before adulthood. Here I'll use the case of Genie. https://en.wikipedia.org/wiki/Genie_(feral_child)

Her father was terribly abused, and in turn terribly abused her. Her mother witnessed and participated, but was not prosecuted because it was determined she was essentially a captive of her husband. There was some debate as to whether something was wrong with Genie before she was abused, but when she was removed from that home and nurtured she seemed to follow a normal but delayed developmental trajectory for a while. So it seems likely that her delayed development was due to not being properly cared for.

Genie's father shot himself, Genie became the subject of scientific inquiry, and then was released back into another abusive home. She now lives as a ward of the state of California and has a severely restricted vocabulary in sign language.

It is plain to see that, due to no fault to her own, and almost certainly not due to nature (i.e. genetics or a fluke of biology) that Genie was alienated from her supposedly inalienable rights.

To add insult to injury, the system did not adapt due to this experience. No laws were enacted that would prevent something like this from happening again. No one was prosected. No one was guilty. There is a victim, but no perpetrator.

It stands to reason that the guilty party must thus be found to be the United States of America itself, which supposedly protects against this kind of abuse. Your freedoms do not include the freedom to keep your children locked up and to torture your family, because that would violate other people's freedoms. Furthermore, even if Genie's father hadn't killed himself and he had been subject to the death penalty or life in prison, Genie's inalienable rights would still have been violated, and so the USA would still be a guilty party for not taking reasonable measures to prevent it.

Genie can't stand up for herself and may not be capable of understanding what I've written here. We also can't communicate with her anyways because her location is secret. However, there are many people who were less abused than her that are hurting but are capable of speaking out. And in many cases, they have limited ability to seek justice due to short Statutes of Limitations.

Accordingly, I propose to create a class action lawsuit intended to force the US Government to create and enforce laws that enact feedback loops such that the system learns from these kinds of atrocities and prevents them from happening again. I don't seek financial compensation, but rather a radical reinterpretation of how the Constitution should be enforced. A "get off my lawn" mentality does not outweigh the rest of society's interest in making sure crimes against humanity aren't occurring in your basement.
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Old 02-19-2018, 12:10 PM
HurricaneDitka HurricaneDitka is online now
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Originally Posted by alterego View Post
... It stands to reason that the guilty party must thus be found to be the United States of America itself, which supposedly protects against this kind of abuse. ... and so the USA would still be a guilty party for not taking reasonable measures to prevent it.

...

Accordingly, I propose to create a class action lawsuit intended to force the US Government to create and enforce laws that enact feedback loops such that the system learns from these kinds of atrocities and prevents them from happening again. I don't seek financial compensation, but rather a radical reinterpretation of how the Constitution should be enforced. A "get off my lawn" mentality does not outweigh the rest of society's interest in making sure crimes against humanity aren't occurring in your basement.
"That's not how any of this works." You will lose. It's well-established that the USA.gov (and state and local gov) does not owe any individual protection. Police screwed up your hostage situation and shot you instead, sorry, can't sue. You called 911 because a man was breaking down your door trying to kill you, and the police decided to go for coffee instead of respond to your call, sorry, can't sue.

Last edited by HurricaneDitka; 02-19-2018 at 12:11 PM.
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Old 02-19-2018, 12:39 PM
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Originally Posted by alterego View Post
Accordingly, I propose to create a class action lawsuit intended to force the US Government to create and enforce laws that enact feedback loops such that the system learns from these kinds of atrocities and prevents them from happening again. I don't seek financial compensation, but rather a radical reinterpretation of how the Constitution should be enforced. A "get off my lawn" mentality does not outweigh the rest of society's interest in making sure crimes against humanity aren't occurring in your basement.
Will this new law provide the answers needed to solve these problems? Will it force the taxpayers to pay for solutions to these problems once the answer magically appears? If the two or more sides involved cannot even agree on what the problem is, how does this new law resolve that problem?
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Old 02-19-2018, 01:14 PM
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On the narrow legal aspect, the relevant concept is Sovereign Immunity.

https://en.wikipedia.org/wiki/Sovere..._United_States

The U.S. has voluntarily waived this immunity in limited circumstances here:
https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act

IANAL, but I think as a matter of law what you are suggesting is impossible.
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Old 02-19-2018, 02:24 PM
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Originally Posted by alterego View Post
To start: IMNAL.

Here in the US, we have "inalienable rights." These "rights" may be more of just a "spirit of America" kind of thing, but they may have some legal foundation as well due to precedent. According to the Declaration of Independence, we have the right to life, liberty and the pursuit of happiness.
Just to start off, the DoI is not and never has been the basis of any legal action in the US. You'll get nowhere claiming that it is.

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It stands to reason that the guilty party must thus be found to be the United States of America itself, which supposedly protects against this kind of abuse.
No, that doesn't stand to reason because the US does not protect agains this kind of abuse. Bad things are going to happen in a free society. If you want to eliminate all bad things, you'll need a police state like no police state that has ever existed in the world before. There might be a few Constitutional roadblocks on the way to that utopia. The constitution being a document that actually does have legal sway in a US courtroom.
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Old 02-19-2018, 02:29 PM
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The Declaration is a political manifesto, not a legal document.
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Old 02-19-2018, 02:32 PM
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The Declaration is a political manifesto, not a legal document.
Yep. The British Parliament certainly did not consider it to be a legal document.
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Old 02-19-2018, 02:53 PM
alterego alterego is offline
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Just in case folks are latching onto the wrong thing, the point of the thread is that Genie probably has some legal recourse. The point of the thread is not to shut me down based on idiosyncrasies of my amateur argument, it is instead to find a plausible route to largely eliminating child abuse.
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Old 02-19-2018, 03:00 PM
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Originally Posted by alterego View Post
Just in case folks are latching onto the wrong thing, the point of the thread is that Genie probably has some legal recourse. The point of the thread is not to shut me down based on idiosyncrasies of my amateur argument, it is instead to find a plausible route to largely eliminating child abuse.
There are limited circumstances where what you are porposing can be employed. For example, people have sued state agencies for negligence is supervising foster care. The difference there, however, is that the State is actively assuming a duty of screening foster parents and monitoring the placement. Even then, it's a difficult burden to establish negligence and prevail. And, even in foster care, the existence of such lawsuits have not come close to "largely eliminating child abuse."

Whether Genie has some legal recourse would be a question about whether any potential defendant owed her a legal duty and breached that duty. She doesn't have a recourse simply because something terrible happened to her.

Lawsuits can reduce a lot of harms in our society, but reducing the incidence of child abuse probably isn't one of them.
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Old 02-19-2018, 03:07 PM
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Originally Posted by alterego View Post
Just in case folks are latching onto the wrong thing, the point of the thread is that Genie probably has some legal recourse. The point of the thread is not to shut me down based on idiosyncrasies of my amateur argument, it is instead to find a plausible route to largely eliminating child abuse.
Well, why don't you tell us what society is going to look like once your vision is achieved? What specific policies will need to be put in place in order to "eliminate child abuse"?

Last edited by John Mace; 02-19-2018 at 03:08 PM.
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Old 02-19-2018, 03:11 PM
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Originally Posted by alterego View Post
Just in case folks are latching onto the wrong thing, the point of the thread is that Genie probably has some legal recourse. The point of the thread is not to shut me down based on idiosyncrasies of my amateur argument, it is instead to find a plausible route to largely eliminating child abuse.
Check out the article on the Federal Tort Claims Act that I linked to.

I don't think you have any legal recourse against broad government policy in the way that you envision. It's not hard to see why this must be the case, since the government would otherwise be swamped with politically-motivated lawsuits. Your recourse in such matters is the ballot box.

It would have to be something much more specific, such as the negligence of a specific government agent (other than a police officer) with regard to some specific duty.

ETA: On rereading, maybe my response in not what you're looking for. Did you miss out a "not" in the first sentence of the comment that I quoted? You are not looking for legal avenues, or you are?

Last edited by Riemann; 02-19-2018 at 03:15 PM.
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Old 02-19-2018, 03:30 PM
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Originally Posted by alterego View Post
It is plain to see that, due to no fault to her own, and almost certainly not due to nature (i.e. genetics or a fluke of biology) that Genie was alienated from her supposedly inalienable rights.

To add insult to injury, the system did not adapt due to this experience. No laws were enacted that would prevent something like this from happening again. No one was prosected. No one was guilty. There is a victim, but no perpetrator.

It stands to reason that the guilty party must thus be found to be the United States of America itself, which supposedly protects against this kind of abuse. Your freedoms do not include the freedom to keep your children locked up and to torture your family, because that would violate other people's freedoms. Furthermore, even if Genie's father hadn't killed himself and he had been subject to the death penalty or life in prison, Genie's inalienable rights would still have been violated, and so the USA would still be a guilty party for not taking reasonable measures to prevent it.
I disagree. Genieís father, and the various people who carried out the subsequent abuse, are the guilty parties, and they were not acting on behalf of the United States.

I further disagree that any government is in a position to guarantee the safety of its citizens. Governments have an obligation to set up systems to protect the rights of its people, of course, but the fact that one person deprives another of his/her rights does not mean that the government has committed a wrong that is automatically redressable in court.

To a great extent, the failings of government on a variety of issues - child abuse, racism, war, health care, etc - are not the fault of a disembodied institution known as the government. They are the failings of the people generally, who do not see these matters as worth being addressed.
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Old 02-19-2018, 03:32 PM
alterego alterego is offline
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Well, why don't you tell us what society is going to look like once your vision is achieved? What specific policies will need to be put in place in order to "eliminate child abuse"?
At a bare minimum I would like the government to step in early during pregnancy and have the parents take a test on the basic biological needs of children and the legal responsibilities they have to the child. If they don't pass the test, or the examiner is worried, then it would escalate to an educational intervention.

This will also need to include in depth interviews with children separated from their parents, to identify misconduct (in the parents). These can be conducted at school.

Generally speaking I don't buy into the fearmongering that allowing the government to ensure that crimes against humanity aren't occuring anywhere in their sovereign territory will lead to a dystopia. That's science fiction and FUD. The FUD has unfortunately risen to the level of there not even being any corrective feedback loops in the system when we do identify horrific crimes going on.

Last edited by alterego; 02-19-2018 at 03:34 PM.
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Old 02-19-2018, 05:34 PM
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Originally Posted by alterego View Post
Here in the US, we have "inalienable rights." These "rights" may be more of just a "spirit of America" kind of thing, but they may have some legal foundation as well due to precedent. According to the Declaration of Independence, we have the right to life, liberty and the pursuit of happiness.
"Inalienable" does not mean that there will never be circumstances that prevent you from exercising those rights. What it means is that nothing can separate a law-abiding citizen from his claim to those rights.
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Old 02-19-2018, 05:39 PM
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So if I believe I have a right, and claim that right, it is inalienable?
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Old 02-19-2018, 08:07 PM
alterego alterego is offline
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So if I believe I have a right, and claim that right, it is inalienable?
That's for another thread. In this case we have a document listing them.
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Old 02-19-2018, 08:57 PM
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"Inalienable" doesn't mean that your rights can't be taken away. It means that you can't [validly, effectively] give them away. You can't surrender them.

Thus, you can't sell yourself into slavery; that would be to alienate your right to liberty. But your right to liberty can certainly be taken away, e.g. if you are convicted of a felony, if you suffer from a mental illness which makes you a danger to yourself or others, if you are a non-citizen present in the country without the necessary immigration status.
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Old 02-19-2018, 11:27 PM
alterego alterego is offline
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To a great extent, the failings of government on a variety of issues - child abuse, racism, war, health care, etc - are not the fault of a disembodied institution known as the government. They are the failings of the people generally, who do not see these matters as worth being addressed.
The government is embodied by the people..

Definitely agree that people aren't acting as if they care. The point of the thread was not to get mired in that stagnation but to find a way out of it.
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Old 02-19-2018, 11:54 PM
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The government is embodied by the people..

Definitely agree that people aren't acting as if they care. The point of the thread was not to get mired in that stagnation but to find a way out of it.
But courts are not super-governments that are supposed to rewrite laws as they see fit when the people are too mired in politics or ignorance. Especially when you are proposing that courts act to enforce rights that arenít actually legally recognized rights at all. (That is, this supposed right to have the government protect an individual from all harm.)
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Old 02-20-2018, 12:44 AM
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But courts are not super-governments that are supposed to rewrite laws as they see fit when the people are too mired in politics or ignorance. Especially when you are proposing that courts act to enforce rights that aren’t actually legally recognized rights at all. (That is, this supposed right to have the government protect an individual from all harm.)
This. In the US context, the assertion of "inalienable rights" is founded the Declaration of Independence. As others have pointed out, that's a political statement, not a legal statement, but park that for a moment.

The Declaration does say, right enough, that "to secure these rights, Governments are instituted among Men", so if the government fails to "ensure" your inalienable rights, that's a legitimate criticism of the government, at least in terms of the Declaration of Independence.

But it doesn't follow that you have a right to sue the government; the Declaration is explicit that, if government fails in this regard, the consequence is that "it is the Right of the People to alter or to abolish it, and to institute new Government". So what you should be doing is not suing the government, but seeking to foment revolution (violently or non-violently, according to taste).

But the Declaration itself counsels caution; "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

In short, you have a government that cannot absolutely guarantee that no-one will ever effectively infringe your rights to life, liberty, the pursuit of happiness and other unspecified inalienable rights. If you find that intolerable, you have a right to abolish the government and institute another. But you should think twice before doing so; what makes you think your new government will be able to do what the old one was unable to do?

Last edited by UDS; 02-20-2018 at 12:44 AM.
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Old 02-20-2018, 01:25 AM
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"Inalienable" doesn't mean that your rights can't be taken away. It means that you can't [validly, effectively] give them away. You can't surrender them.

Thus, you can't sell yourself into slavery; that would be to alienate your right to liberty. But your right to liberty can certainly be taken away, e.g. if you are convicted of a felony, if you suffer from a mental illness which makes you a danger to yourself or others, if you are a non-citizen present in the country without the necessary immigration status.
And why can certain rights be taken away? Because when you commit certain acts, you DO surrender your rights. For example, when you commit a crime, you surrender your right of self-defense. And the government could not ethically put criminals in jail unless they had first surrendered their right to liberty by their unlawful actions.
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Old 02-20-2018, 10:14 PM
alterego alterego is offline
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And why can certain rights be taken away? Because when you commit certain acts, you DO surrender your rights.
The problem is when you are denied the experiences you would need as a child to comply with our laws as an adult.

The definition of adult should not include "I don't care what happened to you as a child: deal with it and comply."

That mindset is a gross violation of your natural rights. Natural instinct is to not comply. Compliance is tantamount to Stockholm Syndrome.
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Old 02-20-2018, 10:38 PM
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But it seems like you are expecting government to be successful in correcting years of truly horrible child abuse. I think the government ought to take steps to ameliorate such tragedies, but I donít think it is reasonable to expect that government can cure such trauma.

Like for example, if a child has a terrible (and preventable) disease, the impacts of the disease may be life-long, and sometimes very serious. I think the government ought to offer health care, counseling, social services, etc but I do not think it is reasonable to expect that such services will correct the problem.
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Old 02-20-2018, 11:18 PM
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And why can certain rights be taken away? Because when you commit certain acts, you DO surrender your rights. For example, when you commit a crime, you surrender your right of self-defense. And the government could not ethically put criminals in jail unless they had first surrendered their right to liberty by their unlawful actions.
This analysis breaks down, though, once you extend it beyond criminals. How do the mentally ill surrender their rights? How does somebody whose immigration status is revoked or expires surrender their rights?

They don't surrender their rights, is the answer; their rights are taken away.

In the Declaration of Independence, the notion of "inalienable rights" as rights which you could not surrender is included to counter an objection to the DofI based on concepts of allegiance, fidelity, loyalty. Many (most? all?) of the signatories of the Declaration, remember, had previously taken oaths of allegiance to the Crown - as military officers, as members of colonial legislatures, as the holders of civic offices. Obviously, this might be used as the basis for an attack on the legitimacy and even basic morality of what they were now doing. So they appeal to "inalienable rights" as a pre-emptive defence against such an attack. You simply cannot surrender your fundamental rights, they say; no oath you take is valid or effective to deprive you of your right to life, liberty, etc, and no oath can bind you to the exent that you can no longer assert these rights for yourself.

But this does not mean that the government cannot limit your exercise of those rights. It can, and it does (mainly in order to ensure those rights to other people). This limitation is not founded on any notion that you have surrendered your rights, not only because we have already a priori excluded that as a possibility, but also because it's not a terribly realistic characterisation of what happens when the government takes you into custody. Rather, the justification for restricting your rights is founded not on your (deemed) agreement to their limitation, but on the government's duty to ensure the same rights to others in the community.

Last edited by UDS; 02-20-2018 at 11:19 PM.
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