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'liberty' doesn't mean 'physical liberty'

WorldNetDaily Exclusive

Government argues 'liberty' doesn't mean 'physical liberty'
Pleading defends authorities' decision to jail defendant for 12 hours in violation of the law

Posted: February 12, 2011
10:50 pm Eastern

By Bob Unruh


Judges who decided the case include Herschel Franks, center-front; Charles Susano (right-front); and S. Michael Swiney (2nd from right in back)

Attorneys for Bradley County, Tenn., and several of its officials have submitted a brief to the state Supreme Court arguing that the constitutional idea of "liberty" doesn't actually mean "physical liberty."

That's the way a brief filed by Thomas E. LeQuire of Spicer Rudstrom, PLLC, states it anyway:

"Liberty does not mean physical liberty," explains point DII in the pleading that encourages the high court to reject a request from Jeremy Paul Hopkins for a hearing.

WND previously reported that the state appeals court released an opinion in the dispute that scolded sheriff's department officers in Cleveland, Tenn., for breaking state law regarding due process, but at the same time said those actions really don't violate the U.S. Constitution's guarantee of those rights.

"We hold the trial court was correct when it held that the Bradley County sheriff's department had violated Tenn. Code Ann. [Paragraph] 40-11-150," said the ruling from Court of Appeals of Tennessee at Knoxville.

"However, violation of the statute did not deprive Mr. Hopkins of his due process rights under the 14th Amendment of the United States Constitution."

Hopkins at the time told WND he'd pursue an appeal of the decision to the Tennessee Supreme Court, and possibly up to the U.S. Supreme Court, because of the precedent that appears to give law enforcement a pass on following the law.

"This means the state of Tennessee can jail any law-abiding citizen against their will without violating the U.S. Constitution and without the citizen having recourse," he told WND at the time.

But when he submitted his request to the Supreme Court, the defendants, including the county, Sheriff Tim Gobble, Officer Marshall Hicks, and a number of unidentified officers, responded with the idea that liberty isn't liberty.

"Hopkins' basic argument was and is that the concept of 'liberty' is the right to physical liberty enumerated in the Constitution, and therefore a fundamental right," the county argues. "This position has been repeatedly rejected by the courts."

"While the Fifth and Fourteenth Amendments mention the word liberty, 'this does not mean that the 'right to liberty' is a free-floating fundamental substantive Due Proceses right,'" the county argues.

"Justice Scalia's holding that 'the text of the Due Process Clause does not protect individuals against deprivations of liberty simpliciter. It protects them against deprivatations of liberty 'without due process of law,'" the county said.

"Prior to the Court of Appeals' ruling in this case, if there had not been a specific finding made that the arrestee is, or is not, a threat to the victim, Bradley County believed … that it was required to hold the arrestee for the 12-hour period," it continued.

"Since the sheriff's department's policy passes the rational relationship test, there is no violation of the U.S. Constitution and, consequently, Hopkins' Due Process rights were not violated," the county argues.

The filing also claims that, "Negligent understanding of state statute is not a constitutional violation."

"The Court of Appeals ruled that the Bradley County sheriff's department 'obviously misconstrued the meaning of Tenn. Code Ann. Paragraph 40-11-150(h) and held Mr. Hopkinsn for 12 hours. However … this mistake or negligent act is not a violation of Hopkins' due process rights," the county argued.

Hopkins, however, submitted in his brief arguments citing U.S. Supreme Court precedents that "liberty" does, in fact, mean "physical liberty:"

  • "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 1785 (1992).

  • "If the 'liberty' protected by the Due Process Clause means anything, it means freedom from physical restraint." Schall v. Martin, 467 U.S. 253, 289, 104 S. Ct. 2403, 2422 (1984).

  • "In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 2105.

  • "[I]t is the State's affirmative act of restraining the individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty— which is the 'deprivation of liberty' triggering the protections of the Due Process Clause." DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 200, 109 S. Ct. 998, 1006 (1989)

"It is a sad and scary day in America when lawyers actually argue that the liberty protected in the Constitution does not mean physical liberty," Hopkins told WND. "The county's position is stunning. Americans should be very concerned with court opinions declaring the Constitution no longer protects persons from being unlawfully jailed.

"In this case, the county not only jailed me without authority and in violation of law, but they also jailed me in the face of a court order specifically instructing them to release me. Even more disconcerting is the fact that the state attorney general, who took an oath to uphold the Constitution and to defend the citizens, has not intervened to stop this outrageous conduct. If physical liberty is not a fundamental right, it is difficult to think of anything that would be," Hopkins said.

Hopkins' situation developed like this, according to the court's documents: Hopkins was involved in a custody fight following a divorce, and he was accused falsely of domestic violence. The count later was expunged, he reported.

But at the time the claim was made, he found out about the arrest warrant, and made arrangements for bond, then turned himself in to law enforcement, expecting to have the proper paperwork processed and to be released.

Instead, sheriff's officers refused to recognize his bond until 12 hours had passed.

"Plaintiff was incarcerated in jail on an arrest warrant that authorized bail of $1,500.00, which defendants failed to honor until the elapse of a 12-hour period," the lower court noted. "The trial judge held the defendants violated the statute ... and that the violation amounted to a constitutional violation entitling the plaintiff to damages."

The appellate opinion said the trial judge was correct that the sheriff's officers broke the state law by holding Hopkins for 12 hours before allowing bond, but it said the illegal confinement didn't amount to a constitutional violation.

Appellate judge Herschel Pickens Franks wrote the opinion and Charles Susano Jr. and D. Michael Swiney joined.

Hopkins explained he reported to the sheriff's office on Dec. 22, 2006, for a warrant dated the day before.

"The warrant provided for his release from jail on a $1,500.00 bond, and he claimed that he was willing and able to post the bond but the sheriff department officers informed him that, because the allegations against him involved domestic violence, the department was required to hold him in custody for 12 hours following his arrest before he would be allowed to post bond and be released," the court's ruling explained.

That, however, was wrong, the ruling said.

"The sheriff's department policy was based on a misreading of the statute and, therefore, inappropriate," the decision said. "The statute provides only that the arrestee 'shall not be released within 12 hours of arrest if the magistrate or other official duly authorized to release the offender finds that the offender is a threat to the alleged victim.'"

No written findings existed in Hopkins' case, the court admitted.

The decision from the lower court confirmed, "The statute was not followed, and findings were not made. Without a finding of a threat to the victim, the offender is to be released. ... Therefore, the policy of the Bradley County sheriff's department violates plaintiff's due process rights when the policy violates the statute."

The appeals court agreed: "The 12-hour holding period ... only applies to an alleged domestic offender who has been found by a magistrate to be a threat ... . Thus, the Bradley County sheriff's department's policy to hold all alleged domestic violence offenders for 12 hours after arrest ... was not in accordance with [state law.]"

But hold on, wrote the appeals court; it's one thing to have a sheriff's office operating with a policy that violates state law, but another to call it a due process violation that creates a liability to the plaintiff.

"The Bradley County sheriff's department obviously misconstrued the meaning of [state law] and held Mr. Hopkins for 12 hours. However ... this mistake or negligent act is not a violation of Hopkins' due process rights," the appellate opinion said.

Hopkins, a licensed attorney who never has been convicted of any wrongdoing, resolved the underlying custody dispute with an agreement for equal custody.

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