When can my rights as a U.S. citizen
be suspended?
Last week we left off with the topic
of what your rights you have as a citizen. Today we
pick up, as promised, with a discussion of the important
area of in what few instances your rights may be suspended.
Thankfully, this area of law is relatively small and
not encountered very often. But one never knows what
the future will hold. It’s a good idea to at
least be aware of a few things.
First up is curfew. Perhaps this
word conjures up memories of entirely inappropriate
9 p.m. curfews imposed by parental units in a battle
over broccoli consumption (or lack thereof) around
the supper table. Despite that seemingly heavy-handed
control from your elders, curfew is the mildest form
of suspension of your rights. When applied to society
in general, the ancestry and legitimacy of this sort
of edict is lost in the mists of history.
What we do know is that a local official,
usually the mayor or equivalent, can issue an order
that defines hours between which businesses must be
closed and citizens off the streets of a city or town.
Curfews were more common during the riots and civil
disorder of the 1960s and early 1970s. A declared
curfew is limited only to the terms of the order and
in no way modifies existing laws or regulations. A
curfew violation is a minor offense. You will not
get the chair, nor be hanged, nor used as alligator
bait. If in fact, it constitutes a crime, depending
on the authority behind the curfew, you may only suffer
a mildly sullied reputation.
Other situations in which your rights
may be suspended are during times of emergency. One
example was when President Abraham Lincoln suspended
the privilege of the writ of habeas corpus during
the Civil War. As one might imagine, there was widespread
disagreement with this decision among the populace.
It wasn’t a small matter that
made Lincoln take such a bold step. His goal was noble.
He was doing everything he could to preserve the Union.
Judges, in the judicial branch were using the writ
to release draftees left and right who had been conscripted
for service in the Union Army, to the frustration
of the executive branch of government. Without a Union
Army to stand in the way, the Confederacy might have
prevailed, changing history, the flag and the currency
to name only a few things, not forgetting the entire
question of slavery.
Another situation in which your personal
rights might be suspended or abridged is in the aftermath
of a natural disaster. These include hurricanes, earthquakes,
or terrorist attacks. The limit of such suspension
of rights is intended to conform with the magnitude
of the disaster or the social threat.
Special rules can be put into short
term effect that keep the public barred from certain
areas during rescue operations. A recent example of
this would the two men in Texas who removed debris
from one of the many accident scenes left behind when
the space shuttle Columbia disintegrated in mid-air.
Federal offense. Felony. Bad idea.
If only they had known before hand,
like you do now, that such actions are punishable
as a Federal crime by ten years in prison and a $250,000
fine, maybe they would have gone fishing instead.
There are seventeen pending investigations from the
Columbia debris alone. Some of these misguided entrepreneurs,
put the glaring spotlight of suspicion on themselves
by attempting to sell shuttle parts on eBay. Without
such people, it would be such a dull planet.
Executive orders could also be used for short term
suspension of rights. For example, on 9/11 you may
remember that the Federal Government issued orders
to aircraft in flight to land at the nearest suitable
airport at the earliest opportunity. The Federal Government
has “pre-empted” the control of the airspace,
enabling the government to take such far reaching
action quickly. Obviously, the imposition of these
rules raise legal questions. The good part is the
interference with your common rights are normally
of such short duration. Frequently this has the effect
of making it more difficult to test such matters in
a court of law. If such rights were tested, they would
likely be found necessary for the public safety, health
or welfare. Only in the case of flagrant and unreasonable
suspensions would the executive branch be overruled.
You have a legal duty to obey such orders which suspend
your rights.
There are, however, some conditions
on the imposition of the Order. First, you must be
aware of the order. Many times a court will examine
whether you knew or should have known of the order
if you did not have “actual” knowledge.
Next, the order must be sufficiently
clear in its language that the reasonable person can
understand what conduct is prohibited. Also frequently
considered is whether you had the capability to obey
the issued order or, alternatively, whether some intervening
condition prevented you from following an executive
order.
The basic premise is that such temporary
suspension of our normal civil rights are necessary
to address a significant problem of public importance.
While certain things, like increased airport security,
are difficult at times, we cooperate for the greater
good of our personal security.
In the area of suspension of your rights, it seems
important to do two things at once. You are required
to adhere to the rule and cooperate with the law.
You should also remain alert to whether a suspension
of rights is justified. If not, your remedies lie
better in Court or through your elected officials
than through public disobedience.
Michael R. Barnes
practices law in Key West, Florida. His comments are
provided as a pro bono community service and are not
offered as legal advice for a particular set of circumstances.
This article was materially assisted in its preparation
by his paralegal, Derek Dowell. If you are concerned
that you may need a lawyer, you are encouraged to
contact one and follow his or her advice for your
individual situation.
