Under the Law -- Albany MSNBC Refugees Forum

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Date Posted: Tuesday, March 22, 10:34:15am
Author: JJ
Subject: Under the Law
In reply to: Brassman 's message, "WE DON'T STARVE CONVICTS OR ANIMALS TO DEATH...THE NAZIS DID" on Monday, March 21, 09:55:56pm

U.S. District Judge James Whittemore said the 41-year-old woman�s parents had not established a �substantial likelihood of success� at trial on the merits of their arguments.

Whittemore wrote that Terri Schiavo�s �life and liberty interests� had been protected by Florida courts. Despite �these difficult and time strained circumstances,� he wrote, �this court is constrained to apply the law to the issues before it.�

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According to a CNN-USA Today-Gallup poll of 909 adults taken over the weekend, nearly six in 10 people said they think the feeding tube should be removed and felt they would want to remove it for a child or spouse in the same condition.

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Applicable Standards

While there may be substantial issues concerning the constitutionality of the Act, for purposes of considering temporary injunctive relief, the Act is presumed to be constitutional. Benning v. Georgia, 391 F.3d 1299, 1303 (11th Cir. 2004).

The purpose of a temporary restraining order, like a preliminary injunction, is to protect against irreparable injury and preserve the status quo until the district court renders a meaningful decision on the merits. Canal Auth. of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). A district court may grant a preliminary injunction only if the moving party shows that:

(1) it has a substantial likelihood of success on the merits;

(2) irreparable injury will be suffered unless the injunction issues;

(3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and

(4) if issued, the injunction would not be adverse to the public interest. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001). A preliminary injunction is "an extraordinary and drastic remedy" and is "not to be granted unless the movant 'clearly established the burden of persuasion' as to the four prerequisites." United States v. Jefferson County, 720 F.2d 1511,1519 (llth Cir. 1983) (.quoting Canal Auth. of State of Florida, 489 F.2d at 573).2 ((The Act does not address the traditional requirements for temporary injunctive relief. Accordingly, these standards control whether temporary injunctive relief is warranted, notwithstanding Congress' intent that the federal courts determine de novo the merits of Theresa Schiavo's claimed constitutional deprivations))

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OK... -- Brassman, Wednesday, March 23, 08:09:36am