Under the Fourteenth Amendment of the United States Constitution, you are entitled to due process of law before the state deprives you of a constitutionally protected right. The easiest way to describe due process is “fairness.” Not necessarily whether the decision itself was fair but rather whether the process of arriving at that decision was fair. Due process in the United States refers to the “how” and “why” laws, rules, regulations, or ordinances are enforced.
Procedural Due Process
A claim for a violation of your right to procedural due process involves an analysis of “how” you were deprived of your constitutionally protected right. In other words, did the government or state actor follow the proper procedures before depriving you of your constitutional right or rights? Generally, this includes some type of notice and an opportunity to be heard prior to the deprivation. If not, then you may have a claim for a violation of your right to procedural due process.
Substantive Due Process
A claim for a violation of your right to substantive due process involves and analysis of “why” you were deprived of your constitutionally protected right. In other words, the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” means not only are you entitled to procedural due process, but also that some acts are off limits for government, regardless of the fairness of the procedures used to implement them.
What rights are protected?
Due Process applies to the rights reserved in the First through Eighth Amendments, including the Freedom of Speech, Freedom of Religion, Freedom of the Press, Freedom of Association, right to be from unreasonable searches and seizures and the right to be free from cruel and unusual punishment. In addition, it applies to the more general rights to life, liberty and the pursuit of happiness conveyed in the Fourteenth Amendment.
Exhaustion of State remedies
Prior to filing a due process claim, you are required to exhaust any remedies that may be available to you through the State or through an administrative process. It is important to pursue all remedies that may be available to you regardless of whether you think that it would be pointless. The failure to timely appeal a decision or pursue your rights in State court may be fatal to your claim.
If you believe your right to due process has been violated, then it is important to consult with a Ft. Lauderdale civil rights attorney immediately. Do not be concerned about the cost of an attorney. Federal law provides for the recovery of reasonable attorneys’ fees and costs incurred pursuing your rights. In light of the availability of attorneys’ fees, it is common for attorneys to handle due process claims on a contingency fee basis at no cost to you.
If you would like a free consultation, then please contact my office at (954)509-3826 or fill out the consultation form and my office will contact you.