In case involving plaintiffs who performed search, rescue, and clean-up work at the World Trade Center site after 9/11, with allegations that federal officials' knowingly false statements about the air quality safety violated plaintiffs' right to substantive due process, dismissal of complaint is affirmed as the allegations do not shock the conscience even if the defendants acted with deliberate indifference. When agency officials decide how to reconcile competing governmental obligations in the face of disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability.
-- Lombardi v. Whitman [Findlaw summary]
The ruling suggests the hesitance of the federal courts to allow, without special permission via legislation, suing government officials acting in their official capacities. A district judge in a related case thought a case could be made that such "shock" might be shown. And, the appellate ruling here left a lot to be desired in shown why it was not here -- "Officials might default to silence in the face of the public's urgent need for information." Apparently, the chance of a default where the public might not trust the government's information didn't come to mind. Reasonable distrust is useful, total distrust leads to anarchy.
[News now comes out that the campus shooter should not have been sold his guns given federal, and maybe even state, law. On some level, we have to trust the government to uphold such laws. If we wish to uphold a regimen in which we have the right to own firearms -- partially since we think it useful for the public safety -- this must include regulation. And, given the modern state, this involves national regulation. Commerce is interconnected, people and guns move cross state lines, and the whole regimen has national benefits. But, we have to trust the government to enforce such laws fairly and adequately.]
Still, the term 'shock the conscience' is a legal one. As with "murder" in the abortion context, even if something "shocks" in the eyes of many, it might not LEGALLY do so in various contexts. But, as shown by Gonzalez et. al., litigation is not the only means to address "shocking" governmental behavior. Good thing, given a lawyer involved noted: "There is a prospect, essentially, that these people will get nothing through the court system." Likewise, it underlines that even if governmental action doesn't reach levels "shocking" enough for legal action, it very well might be shocking enough to be of deep concern to "we the people." This includes misleading the public about the safety of downtown Manhattan after 9/11.
As an aside, the ruling notes that usually we should expect the government to have acted "reasonably" and not have the courts second guess. As shown by the recent abortion ruling in which even the majority opinion admitted the "facts" cited by the law against a single procedure had multiple errors, sometimes this is just too much to assume. Building up the trust so that the people, while still distrusting government given its usual imperfections and all, can reasonably trust the federal government -- esp. the executive -- to do its job will be a long time coming.
[In a NYT story today discussing missile defense in Eastern Europe, we can see a taste of the many strands of the problem.
Another senior administration official, explaining the accelerated effort to reach out to Russia on the issue, conceded: "We were a little late to the game. We should have been out there making these arguments, making the case more forcefully before people began framing the debate for us — and in false terms."
The prosecutor scandal underlines that merely not breaking the law, though even that seems questionable, is not all we have a right to expect from our leaders. This includes avoiding patent appearance of impropriety, something Justice Scalia apparently doesn't find TOO important. No wonder he is the ideal justice for Bush. His tendency to lash out and belittle those he disagrees with also seems to be a quality in many conservatives.]
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* For instance, a fellow classmate and lapsed fundamentalist Christian who challenges Stephanie's worldview is named "Satin." It amused me that Satin's character, if not in all aspects, reminded me of the lead's role in The Sisterhood of the Travelling Pants. Religion should be examined more in film, imho, though we don't really get a positive flavor here. Still, as the d/w noted, the woman minister (the sex itself interesting) might have been sympathetic to the teenage girl here, if she was aware of the situation. We catch bits of her sermons, and pushing to have God in one's life isn't per se a bad thing.
I'd add that a pregnant psychologist questioning her -- though the actress is excellent -- seemed a bit forced to me. My legal side also wondered about the conflict of interest, especially given her past history and current stress. It surely underlines possible underlining biases involved in officaldom in such cases! Overall, again, the film covers a whole lot of ground, its possible limitations doesn't change that. An example of what good indie films can be.