CHICAGO v. MORALES ( No. 97-1121 ) 177 Ill. 2d 440, 687 N. E. 2d 53

CHICAGO v. MORALES ( No. 97-1121 )
177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.

CITY OF CHICAGO v. MORALES et al.

certiorari to the supreme court of illinois

No. 97–1121. Argued December 9, 1998—Decided June 10, 1999
Chicago’s Gang Congregation Ordinance prohibits “criminal street gang members” from loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance. The police department’s General Order 92–4 purports to limit officers’ enforcement discretion by confining arrest authority to designated officers, establishing detailed criteria for defining street gangs and membership therein, and providing for designated, but publicly undisclosed, enforcement areas. Two trial judges upheld the ordinance’s constitutionality, but eleven others ruled it invalid. The Illinois Appellate Court affirmed the latter cases and reversed the convictions in the former. The State Supreme Court affirmed, holding that the ordinance violates due process in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties.

Held: The judgment is affirmed.

177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.

Justice Stevens delivered the opinion of the Court with respect to Parts I, II, and V, concluding that the ordinance’s broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement. Kolender v. Lawson, 461 U. S. 352. The ordinance encompasses a great deal of harmless behavior: In any public place in Chicago, persons in the company of a gang member “shall” be ordered to disperse if their purpose is not apparent to an officer. Moreover, the Illinois Supreme Court interprets the ordinance’s loitering definition—“to remain in any one place with no apparent purpose”—as giving officers absolute discretion to determine what activities constitute loitering. See id., at 359. This Court has no authority to construe the language of a state statute more narrowly than the State’s highest court. See Smiley v. Kansas, 196 U. S. 447. The three features of the ordinance that, the city argues, limit the officer’s discretion—(1) it does not permit issuance of a dispersal order to anyone who is moving along or who has an apparent purpose; (2) it does not permit an arrest if individuals obey a dispersal order; and (3) no order can issue unless the officer reasonably believes that one of the loiterers is a gang member—are insufficient. Finally, the Illinois Supreme Court is correct that General Order 92–4 is not a sufficient limitation on police discretion. See Smith v. Goguen, 415 U. S. 566. Pp. 16–20.

Justice Stevens , joined by Justice Souter and Justice Ginsburg , concluded in Parts III, IV, and VI:

1. It was not improper for the state courts to conclude that the ordinance, which covers a significant amount of activity in addition to the intimidating conduct that is its factual predicate, is invalid on its face. An enactment may be attacked on its face as impermissibly vague if, inter alia, it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty. Kolender v. Lawson, 461 U. S., at 358. The freedom to loiter for innocent purposes is part of such “liberty.” See, e.g., Kent v. Dulles, 357 U. S. 116. The ordinance’s vagueness makes a facial challenge appropriate. This is not an enactment that simply regulates business behavior and contains a scienter requirement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489. It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin , 439 U. S. 379, and infringes on constitutionally protected rights, see id. , at 391. Pp. 7–12.

2. Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e.g., Coates v. Cincinnati, 402 U. S. 611. The term “loiter” may have a common and accepted meaning, but the ordinance’s definition of that term—“to remain in any one place with no apparent purpose”—does not. It is difficult to imagine how any Chicagoan standing in a public place with a group of people would know if he or she had an “apparent purpose.” This vagueness about what loitering is covered and what is not dooms the ordinance. The city’s principal response to the adequate notice concern—that loiterers are not subject to criminal sanction until after they have disobeyed a dispersal order—is unpersuasive for at least two reasons. First, the fair notice requirement’s purpose is to enable the ordinary citizen to conform his or her conduct to the law. See Lanzetta v. New Jersey, 306 U. S. 451. A dispersal order, which is issued only after prohibited conduct has occurred, cannot retroactively provide adequate notice of the boundary between the permissible and the impermissible applications of the ordinance. Second, the dispersal order’s terms compound the inadequacy of the notice afforded by the ordinance, which vaguely requires that the officer “order all such persons to disperse and remove themselves from the area,” and thereby raises a host of questions as to the duration and distinguishing features of the loiterers’ separation. Pp. 12–16.

Justice O’Connor , joined by Justice Breyer, concluded that, as construed by the Illinois Supreme Court, the Chicago ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers; in particular, it fails to provide any standard by which police can judge whether an individual has an “ apparent purpose.” This vagueness alone provides a sufficient ground for affirming the judgment below, and there is no need to consider the other issues briefed by the parties and addressed by the plurality. It is important to courts and legislatures alike to characterize more clearly the narrow scope of the Court’s holding. Chicago still has reasonable alternatives to combat the very real threat posed by gang intimidation and violence, including, e.g., adoption of laws that directly prohibit the congregation of gang members to intimidate residents, or the enforcement of existing laws with that effect. Moreover, the ordinance could have been construed more narrowly to avoid the vagueness problem, by, e.g., adopting limitations that restrict the ordinance’s criminal penalties to gang members or interpreting the term “apparent purpose” narrowly and in light of the Chicago City Council’s findings. This Court, however, cannot impose a limiting construction that a state supreme court has declined to adopt. See, e.g., Kolender v. Lawson, 461 U. S. 352, n. 4. The Illinois Supreme Court misapplied this Court’s precedents, particularly Papachristou v. Jacksonville , 405 U. S. 156, to the extent it read them as requiring it to hold the ordinance vague in all of its applications. Pp. 1–5.

Justice Kennedy concluded that, as interpreted by the Illinois Supreme Court, the Chicago ordinance unconstitutionally reaches a broad range of innocent conduct, and, therefore, is not necessarily saved by the requirement that the citizen disobey a dispersal order before there is a violation. Although it can be assumed that disobeying some police commands will subject a citizen to prosecution whether or not the citizen knows why the order is given, it does not follow that any unexplained police order must be obeyed without notice of its lawfulness. The predicate of a dispersal order is not sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to such an order based on the officer’s own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; nor may the citizen be able to assess what an officer might conceive to be the citizen’s lack of an apparent purpose. Pp. 1–2.

Justice Breyer concluded that the ordinance violates the Constitution because it delegates too much discretion to the police, and it is not saved by its limitations requiring that the police reasonably believe that the person ordered to disperse (or someone accompanying him) is a gang member, and that he remain in the public place “with no apparent purpose.” Nor does it violate this Court’s usual rules governing facial challenges to forbid the city to apply the unconstitutional ordinance in this case. There is no way to distinguish in the ordinance’s terms between one application of unlimited police discretion and another. It is unconstitutional, not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. See Lanzetta v. New Jersey, 306 U. S. 451. Contrary to Justice Scalia ’s suggestion, the ordinance does not escape facial invalidation simply because it may provide fair warning to some individual defendants that it prohibits the conduct in which they are engaged. This ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide sufficient minimal standards to guide the police. See Coates v. Cincinnati, 402 U. S. 611. Pp. 1–5.

Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined. Kennedy, J., and Breyer, J., filed opinions concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined.

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COURT ORDERS UNC–WILMINGTON TO PAY, PROMOTE PROFESSOR AFTER RETALIATING AGAINST HIM

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GREENVILLE, N.C. — A federal court Tuesday ordered the University of North Carolina–Wilmington to promote a professor to the rank of full professor, a position it originally denied him, and to pay him $50,000 in back pay. In March, a jury found that university officials had retaliated against criminology professor Dr. Mike Adams for expressing conservative views in his opinion columns, books, and speeches when those officials denied him a promotion in 2006.

“As the marketplace of ideas, universities must respect the freedom of professors to express their points of view,” said Alliance Defending Freedom Litigation Staff Counsel Travis Barham. “The jury last month found that disagreeing with an accomplished professor’s religious and political views is no grounds for denying him a promotion. The court’s order rights the wrong done to Dr. Adams by granting him the full professorship he has long deserved.”

“This is a great day not only for Dr. Adams but for all who value academic freedom,” said Senior Counsel Kevin Theriot. “The court’s order reminds universities that they cannot retaliate against those who simply express opinions that some officials do not like.”

Since 2007, Alliance Defending Freedom attorneys have represented Adams together with lead counsel David French, who began the case with ADF and now litigates for the American Center for Law and Justice.

The order in Adams v. The Trustees of the University of North Carolina–Wilmington from the U.S. District Court for the Eastern District of North Carolina, Southern Division, states, “The court hereby orders the defendants confer upon plaintiff full professorship as of the date of this order, with pay and benefits in the future to relate back to August 2007, when plaintiff’s 2006 promotion application would have gone into effect had it been successful.”

In 2011, the U.S. Court of Appeals for the 4th Circuit determined that the First Amendment protects the opinion columns that Adams published, saying that “no individual loses his ability to speak as a private citizen by virtue of public employment…. Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality. Such topics plainly touched on issues of public, rather than private, concern.”

A former atheist, Adams frequently received accolades from his colleagues after the university hired him as an assistant professor in 1993 and promoted him to associate professor in 1998. His conversion to Christianity in 2000 impacted his views on political and social issues. Subsequently, the university subjected Adams to a campaign of academic persecution that culminated in his denial of promotion to full professor, despite an award-winning record of teaching, research, and service.

Supreme Court Rejects Challenge to Pre-Trial Asset Freeze

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The US Supreme Court ruled 6-3 Tuesday in Kaley v. United States that a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury’s finding of probable cause underlying a pre-trial seizure of assets. The US Court of Appeals for the Eleventh Circuit ruled against [opinion] the availability of such hearings because “defendants are not entitled to try the entire case twice,” before the trial and then again in front of a judge and jury. The Supreme Court was asked to consider whether the Fifth and Sixth Amendments [text] give a defendant the right to challenge the evidentiary support of the underlying charges in a pre-trial adversarial hearing when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice. Relying on precedent, the Court found that the freeze placed on the Kaleys’ money is valid because “a defendant has no Sixth Amendment right to spend another person’s money for legal fees.” “The grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime,” Justice Elena Kagan wrote, affirming the Eleventh Circuit’s ruling for the majority.

If the question in a pre-trial forfeiture case is whether there is probable cause to think the defendant committed the crime alleged, then the answer is: whatever the grand jury decides. … Congress of course may strike its own balance and give defendants like the Kaleys the kind of hearing they want. … But the Due Process Clause, even when combined with the defendant’s Sixth Amendment interests, does not command those results.

Chief Justice Roberts, joined by Justices Breyer and Sotomayor, dissented: “few things could do more to ‘undermine the criminal justice system’s integrity’ than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard.”

In my opinion, this was a bad decision & opinion of the most high court. We as citizens must be allowed, by right, to challenge everything for which we have not been found guilty of by a jury of our peers! A grand jury simply hear the “evidence” in the possession of the prosecutor’s office and is not rebutted by evidence in the possession of the defense. This is a very one sided decision, which guts the rights of Americans and bolsters the money grabbing capacity of law enforcement by theft.

http://www.scotusblog.com/case-files/cases/kaley-v-united-states/

‘I Know My Rights’

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As the U.S. Supreme Court stated in Near v. Minnesota, “In determining the extent of the constitutional protection [of the press], it has generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints.” Thus, federal courts that have considered the issue have held that citizens have a constitutional right to film officers who are performing their duties in public places, subject to reasonable time, place, and manner restrictions.

Near v. Minnesota – 283 U.S. 697 (1931)

‘I Know My Rights’: Woman Jailed After Filming Traffic Stop

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Bill of Rights

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Part 11

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

If you truly wish to understand the First Amendment, you would be wise to study/read the Federalist Papers, writings of the individual founding fathers, and the Debates on the Constitution, and of course the letters sent by each of the founders to others (even though this may be considered part of their writings, I view them as personal correspondence.)

There is a wide array of information, books, web-sites, articles, etc. concerning the founders and their intention.  Me personally, I am both an Originalist and a Textualist…I believe the Constitution and the Bill of Rights live on with the original meaning that the founder’s intended and can be used in all governmental circumstances; also, I believe the founders wrote exactly what their intentions were in word form and can be gleaned from the text we presently have before us.  I do not believe it to be a “living document” that is breathed new meaning with the advent of a new generation.  You may not like the right that someone has, but guess what…not everyone likes the rights you are exercising! 

debate1I leave you with this quote:

“I do not agree with what you have to say, but I’ll defend to the death your right to say it.” ~Voltaire

 

See also: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9,  Part 10

Bill of Rights

freedom-of-speech

Part 10:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We have a RIGHT to peaceably assemble with others, this is not in dispute.  We also have the RIGHT to petition our government for redressing our grievances; this also is not in dispute.  These articles are foundational to our right to gather as a people to tell those who govern us, by our consent, that they have done us a great disservice.  However, the US Supreme Court stated in a 1984 decision, “Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues.”  Seems a bit odd, don’t you think?  Our Founding Fathers fought over one of the grievances of just such a nature.  In-fact, it was not unheard of that if someone was considered such an upstart the British Crown would remove that person(s) to England for trial there, which created the impetus for the requirement of a jury of one’s peers in the Sixth Amendment.

Here is where things get interesting as I was reading the definition of the “Freedom of Speech” in Black’s Law Dictionary; I was referred to the “Fighting Words Doctrine.”  Who knew?  And clearly indicate that not all speech is protected by the First Amendment.  “These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Over the course of some 60-70 years the doctrine has been honed down to be more specific than ambiguous.  An interesting case in 1971 comes to bear with this aspect of the First Amendment:  “The Court further expanded its protection of offensive speech in Cohen v. California, 403 U.S. 15 (1971). Cohen was arrested and convicted for disturbing the peace after wearing a jacket bearing the words “F— the Draft.” The Supreme Court reversed the conviction, redefining fighting words as only those “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions.” The Court reasoned that because Cohen’s statement was not an insult directed toward a particular individual, it could not be regulated as fighting words.”

Our Founding Fathers intended for our government to listen to us, since they had just shaken off the British who listened to no one but themselves.  And though the US Supreme Court has deigned it to not be a requirement of Government to answer the People, historically speaking, the people redressed their grievances with the King of England; two examples being the Magna Carta of 1215 and the Petition of Rights.  The colonists attempted to all things peacefully, over the course of a decade but the crown would not relent.  In those similar instances the people of England attempted peaceful solutions and then waged war on the crown.  The crown knew if he did not relent, it would have been sure death at the hands of his servants, hmmmmmm… The colonists followed a similar path and ended up booting the British forces out of the colonies!  On a side note, what the colonists were experiencing was far less intrusive than that of us in this present day.  People are still fighting in courts this very day, but the courts (for the most part) are siding with the government.

See also: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9,  Part 10

Works Cited

Alexander Hamilton, J. J. (1788). THE FEDERALIST PAPERS.

Andrews, J. (2001). Amendments to the US Constitution: Amendment I. In J. Andrews, Guide for Learning and Teaching the Declaration of Independance & US Constitution (p. 382). San Marcos, CA: Center for Teaching the Constitutiuon.

Butler, J. (n.d.). THE BEST OF CARL MILLER. Retrieved January 15, 2013, from MY PRIVATE AUDIO: http://www.myprivateaudio.com/CARLTEXT.pdf; https://www.youtube.com/watch?v=1s-zHrNPfkQ (PARTS 1, 2, & 3)

freedomforum.org. (n.d.). What is the Fighting Words Doctrine? Retrieved January 1, 2014, from Freedom Forum: http://www.freedomforum.org/templates/document.asp?documentID=13718

Geiger, R. (2008, June 4). Background on the First Amendment. Retrieved March 5, 2013, from Oklahoma State University School of Media & Strategic Communications: http://journalism.okstate.edu/faculty/jsenat/foioklahoma/educationlessons/Background_on_First_Amendment.pdf

Justia. (1984, February 21). Minn. Bd. Commun. for Colleges v. Knight – 465 U.S. 271. Retrieved January 1, 2014, from JuUSTIA US Supreme Court: http://supreme.justia.com/cases/federal/us/465/271/

Lockhart, W. B., Kamisar, Y., & Choper, J. H. (1970). THE AMERICAN CONSTITUTION Cases and Materials. St. Paul: West Publishing.

Know Your Constitution – Carl Miller Parts 1 – 3 (abt. 1980). [Motion Picture].

Turner, B. (2011, January 18). The Tyranny Of The Supreme Court. Retrieved January 1, 2014, from American Patriot Commision blog: http://americanpatriotscommission.wordpress.com/2011/01/18/the-tyranny-of-the-supreme-court/

Bill of Rights

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Part 9:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Did you ever wonder why the “Occupy Movement” was neither sanctioned, nor jailed (i.e., though they may have been arrested, they were released by the Judge with the charges being dropped not at the behest of the District Attorney, either) it was because it is our fundamental right and liberty to exercise.  Especially, when done on-the-fly and without any preplanning as if it were by a corporate mindset. 

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The right of assembly was first tested by the Supreme Court in 1876, in United States v. Cruikshank. The defendants in the case had been indicted under the Enforcement Act of 1870, which prohibited any act to “intimidate any other person from freely exercising and enjoying any right or privilege granted or secured by the Constitution of the United States”.  While the indictment could not be upheld, the court declared, “’The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” (United States v. Cruikshank, 1876) [1]

In the precedent setting 1937 Supreme Court case De Jonge v. State of Oregon, Dirk De Jonge had been convicted for teaching communist doctrine to a gathering of 300 people .The Court reversed his conviction, observing that “the right to peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”  In other words, said the court, you can’t deny the the right to assemble “ without violating those fundamental principles which lie at the base of all civil and political institutions.” More profoundly, the court ruled that “the holding of meetings for peaceable political action cannot be proscribed.””[2]

“Peaceable” remains the operative word. The First Amendment protects peaceful, not violent, assembly, although there must be a “clear and present danger” or an “imminent incitement of lawlessness” in order for government to restrict assembly rights.  Generally, though, the Supreme Court maintains that it is imperative to protect the right to peaceful assembly, even for those with whose speech many may disagree, such as Ku Klux Klan (KKK) gatherings, which many perceive as hateful, ruling (in National Socialist Party v. Skokie, 1977) that “it is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.” [3]

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The rights of Free Speech and Assembly are protected rights and liberties we all possess; however, they do not protect us from being offended by the purpose the Assembly and Speech being exercised.  The so-called Hate Laws are, in-fact, unconstitutional if you think long and hard on them, because they hinder us from saying what we desire to say and for the “Political Correctness” of the day which forces you to be tolerant of others and permits one side to be intolerant.  In essence, “Political Correctness” forces us to allow intolerance to be practiced and exercised against one group and prevents their exercising their rights, in a peaceable manner, toward the originating group.

You may consider bullying, in a sense, to be similar.  How often have you heard of a child being bullied to the point they couldn’t take it any longer and finally stood up for themselves?  And how many of them were suspended and expelled for none other than “Bullying”?  Seems a bit ironic and ludicrous, but happens much more often than you may think.  I have heard of a few occurrences here in my home area and at least 5 times, or more, nationwide.

People are becoming so fed up with the business-as-usual politicians, which created the vacuum to create the Tea Party movement.  The Tea Party is made up of Conservative Republicans with a Libertarian and Constitutionalist twist, who have found that the Republican Party had left them in spirit, heart, soul and principle.  Myself, I left long ago when I felt they left their roots and instead of standing on principle when they should have, the negotiated (and vise versa.)

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HOW DOES TYRANNY BEGIN?  WHY ARE THERE SO MANY LAWS?

Heroes are men of glory who are so honored because of some heroic deed. People often out of gratitude yield allegiance to them. Honor and allegiance are nice words for power!  Power and allegiance can only be held rightfully by trust as a result of continued character.  When people acting in the name of government violate ethics, they break trust with “WE THE PEOPLE.” The natural result is for “WE THE PEOPLE” to pull back power (honor and allegiance).  The loss of power creates fear for those losing the power. Fearing the loss of power, people acting in the name of government often seek to regain or at least hold their power. Hence, to legitimatize their quest for control, laws and force are often instituted.  Unchecked power is the foundation of tyranny.

See also: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9

Works

1.      http://suite101.com/a/understanding-freedom-of-assembly-a66325 “Early Challenges

2.      http://suite101.com/a/understanding-freedom-of-assembly-a66325 “Early History of Freedom of Assembly”

3.      http://suite101.com/a/understanding-freedom-of-assembly-a66325 “Peaceful Assembly Protection for All”