Losing Your Second for a Lifetime: Does Prior Involuntary Institutionalization Trigger a Lifelong Ban on Firearm Possession?

BACKGROUND

Federal law prohibits the possession of firearms by persons who have been involuntarily committed to a mental health institution by a state court. This ban, part of the “Gun Control Act” and codified at 18 U.S.C. § 922(g), also applies to people who have been convicted of a felony, convicted of a domestic violence misdemeanor, or have been dishonorably discharged from the United States Armed Forces, among others. However, federal law does not dictate for how long one may be banned from possessing a firearm—is it weeks? Months? Years? Decades?

Duy Mai was seventeen years old in 1999, when he was involuntarily committed to a mental health institution by a Washington court. His commitment spanned more than nine months to account for the court’s ruling that Mai was “mentally ill and dangerous.” Since his release in 2000, Mai has earned a GED, a bachelor’s degree, and a master’s degree. He is a father and asserts that he is “socially-responsible, well-balanced, and accomplished.” And, he argues, he no longer has a mental illness. Now he wants to buy a gun. The Ninth Circuit Court of Appeals says he may not.

THE ISSUE

Does 18 U.S.C. § 922(g)(4) impose a lifetime ban on firearm possession after involuntary institutionalization?

THE SPLIT

The Ninth and Third Circuits have held that, yes, involuntary institutionalization does trigger a lifelong ban on firearm possession. The Sixth Circuit has held that it does not.

In Mai v. United States (2020), the Ninth Circuit affirmed the district court’s dismissal of Duy Mai’s claim. There, he argued that a lifelong imposition of 18 U.S.C. § 922(g)(4) violated his Second Amendment rights. Some states have been able to grant their citizens relief from this ban through inquiries allowed under 34 U.S.C. § 40915 (“Authority to Provide Relief from Certain Disabilities with Respect to Firearms”),  but Washington’s program did not meet the robust requirements to make Mai eligible for such relief. Assuming arguendo that the lifetime ban burdened Mai’s Second Amendment right to bear arms, the Ninth Circuit applied intermediate scrutiny to his claim. The judges balanced the statutory objectives and any important governmental purpose of § 922(g)(4) with the substantial limitations it places on Mai’s freedoms. Citing to prior United States Supreme Court precedent, the judges concluded that the government’s important responsibilities to prevent suicide and crime outweighed any as-applied limitation on Mai’s right to possess a firearm. After all, the Court noted, this right is not unlimited. The Ninth Circuit also cited to its own prior ruling on 18 U.S.C. § 922(g)(9) from United States v. Chovan, where the court determined that a lifetime ban on gun ownership was appropriate for someone who had been convicted of a domestic violence misdemeanor “regardless of present-day rectitude.”

The Sixth Circuit used the same general framework as the Ninth Circuit but came to a different conclusion. Like Mai, the plaintiff in Tyler v. Hillsdale County Sheriff’s Department (2016), argued that a lifetime ban on firearm ownership violated his Second Amendment right since he no longer suffered from mental illness. Tyler had been involuntarily committed more than thirty years ago following a particularly emotional divorce. Also like Mai, Tyler conceded that the ban may be appropriate where a person continues to suffer, which was not true in his case. The Court applied intermediate scrutiny for the same reasons as cited in Mai—assuming, arguendo, that the Second Amendment right is burdened, the decision to lifetime ban must be substantially related to the stated government justifications. Unlike Mai, however, the Sixth Circuit did not consider a lifetime ban fit for the justifications. The government failed to show that there was a substantial relationship between the two primary justifications (suicide prevention and crime reduction) and the ban, according to the Court. As such, the Sixth Circuit reversed and remanded for further application of as-applied intermediate scrutiny.

Like the Ninth Circuit, the Third Circuit also found that § 922(g)(4)’s lifetime ban passed muster. The plaintiff in Beers v. Attorney General of the United States (2020) was involuntarily committed to a mental health institution in Pennsylvania in 2005. He had expressed suicidal ideations to his parents and had also used a firearm to demonstrate these ideations. His mother noted that she feared his access to a firearm gave him the means to complete any plans to end his life. The state twice renewed Beers’s commitment before his final release in 2006. Not long after discharge, Beers attempted to purchase a firearm. His application was denied once a background check revealed his prior involuntary commitment.  Beers challenged this denial in the Eastern District of Pennsylvania, but that court dismissed the matter for failure to state a claim. Upon appeal, the Third Circuit affirmed the denial.

In a departure from the approaches taken by the Ninth and Sixth Circuits, the Third Circuit concluded that Beers’s Second Amendment rights were not substantially burdened, and therefore, the court did not apply intermediate scrutiny. The Third Circuit applied the framework it had established in Binderup v. Attorney General of the United States (2016), which requires a challenger to the federal firearm ban to “(1) identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member, and then (2) present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class.” Only if a litigant can demonstrate both elements will their rights be considered burdened, triggering intermediate scrutiny. In addition to outlining historical notions of mental illness in society, the Third Circuit also looked to pre-Second Amendment literature cited in Binderup. There, the court referenced The Address and Reasons of Dissent of the Minority of the Convention, of the State of Pennsylvania, to Their Constituents (1787). The Address notes that a citizen would be ineligible to bear arms if they were a “real danger of public injury.” The court interpreted this to extend to someone who creates a real danger to the self as well. In returning to Binderup’s logic, the Third Circuit concluded that Beers could not establish how he could distinguish himself from this class (mentally ill individuals). Binderuprecognized neither the passage of time nor evidence of rehabilitation as distinctions from the class of excluded individuals. With no other bases for distinction, the court concluded Beers’s right was not burdened. Beers filed a petition for certiorari to the U.S. Supreme Court, who granted certiorari, but remanded the case with instructions to dismiss as moot.

LOOKING FORWARD

            In 2019, nearly forty-thousand people were killed and thirty-thousand were injured by incidents involving a firearm. With the United States grappling with its relationship with guns and the Second Amendment, understanding the limits (or lack thereof) of Second Amendment rights is critical. This extends beyond the conversation here—who can have guns, when they may use them, and where they may be stored or taken is inherently a part of the national conversation on violence in this country. The issue, and many others, needs to be addressed at the highest level. Whether involuntary commitment to a mental health institution triggers a lifelong ban on firearm ownership is ripe for Supreme Court review—does such a record make you lose your Second [Amendment] for a lifetime?

You Have the Right to Remain Silent—But Only if You’re Told You Do?

BACKGROUND

The Fifth Amendment to the United States Constitution states that “no person . . . shall be compelled in any criminal case to be a witness against himself.” The Supreme Court held in Miranda v. Arizona that interrogation of an individual who is in government custody is presumed to be compulsive. Reciting the warnings that the Court spelled out in Miranda, including the “right to remain silent,” provides a safeguard against violating a criminal suspect’s Fifth Amendment right to be free from self-incrimination in the coercive setting of government custody. Implicit within Miranda warnings is the assurance that a defendant’s silence “will carry no penalty.” Wainwright v. Greenfield. Consequently, prosecution cannot use a criminal defendant’s silence after Miranda warnings have been given in its case-in-chief to prove the defendant’s guilt. 

Surprisingly, the question remains as to whether a defendant’s silence in response to government interrogation post-arrest but pre-Miranda warnings can be used against the defendant at trial as substantive evidence of guilt. 

THE ISSUE

Can the prosecution use a criminal defendant’s silence after the defendant is in custody but before Miranda warnings are given as evidence of guilt in its case-in-chief? 

THE SPLIT

In the 2013 case Salinas v. Texas, the Supreme Court held that a defendant’s non-response to a question by law enforcement while not in custody is admissible and can be used against the defendant as evidence of guilt. But the Court did not explicitly state whether a defendant’s pre-Miranda silence in response to interrogation is admissible if the defendant is in custody. While the Ninth, Tenth, and D.C. Circuits prohibit using post-arrest, pre-Miranda warning silence as substantive evidence of guilt, the Fourth, Eighth, and Eleventh Circuits allow the prosecution to use a defendant’s silence at any timeprior to the issuance of Miranda warnings.

On one side of the split, the Ninth Circuit has held that prosecution may only use a defendant’s post-arrest, pre-Miranda silence for the purpose of impeaching the defendant’s testimony, but not for its case-in-chief. In United States v. Hernandez, the court noted that a defendant’s right to remain silent is triggered by any custodial interrogation, not just when the defendant has been read Miranda rights. The D.C. Circuit went one step further in U.S. v. Moore, stating that “custody not interrogation is the triggering mechanism for the right to pretrial silence under Miranda.” The D.C. Circuit’s holding means that the prosecution cannot comment on a defendant’s silence while in custody prior to Mirandawarnings, even if there has been no interrogation. 

In contrast, in United States v. Cornwell, the Fourth Circuit held that presenting video footage at trial which showed the defendant’s silence in response to police questioning did not violate his Fifth Amendment rights “[b]ecause Cornwell had not received Miranda warnings at the time the video was recorded.” Similarly, the Eight Circuit in United States v. Osuna-Zepeda held that presenting evidence to the jury about a defendant’s failure to make a statement at the time of his arrest, but before he was given Miranda warnings, did not violated his Fifth Amendment right. The court noted that “an arrest by itself is not government action that implicitly induces a defendant to remain silent.”  

Eleventh Circuit precedent was established in 1991 in United States v. Rivera, in which the court held that the prosecution could comment at trial on the defendant’s silence when she was in custody because Miranda warnings had not yet been given. In 2016, the Eleventh Circuit in United States v. Wilchcombe followed the Rivera precedent, but acknowledged the entrenched circuit split and the lack of guidance from the Supreme Court. The court noted that Salinas was not controlling because in contrast to the defendants in Wilchcombe, the Salinas defendant was not in custody at the time of the silence in question. Nevertheless, the Eleventh Circuit in Wilchcombe affirmed a lower court decision to allow the prosecution to use the defendants’ silence after they were apprehended but before Miranda warnings were delivered as proof of guilt.

LOOKING FORWARD

The Supreme Court has the opportunity to resolve this circuit split by granting certiorari in Palacios-Solis v. U.S. In Palacios-Solis, the U.S. Coast Guard stopped and boarded a vessel in the Pacific Ocean and detained three defendants who were suspected of smuggling cocaine. The Coast Guard officers did not recite Miranda warnings, and the defendants remained silent in the face of the officers’ questions. The Eleventh Circuit, based on its own precedent, declined to overturn the district court’s decision to allow the prosecution to use the defendants’ pre-Miranda silence as evidence of guilt. The court again acknowledged the circuit split but, as in Wilchcombe, chose to follow its circuit precedent because the Supreme Court has not addressed this specific issue. Defendants have filed a petition for writ of certiorari. 

The Supreme Court should grant certiorari to resolve this deep circuit split and to ensure that law enforcement and lower courts honor the constitutional rights of criminal defendants in custody. Until the split is resolved, defendants’ right to remain silent will vary by jurisdiction. In some circuits, their silence after arrest, but before they have been told they have the right to remain silent, can be used against them at trial. 

Prosecution cannot use defendants’ responses to custodial interrogation against them if they have not received Miranda warnings, nor can prosecution use non-response to questions after Miranda warnings have been given. But in the Fourth, Eighth, and Eleventh Circuits, the government can use defendants’ silence in the face of custodial interrogation against them when police do not recite Miranda warnings. As Judge Rosenbaum’s state in her concurring opinion in Palacios-Solis, such an anomalous result “eviscerates the purposes of Miranda” and creates a significant risk of violating the Fifth Amendment rights of criminal defendants in those circuits. A suspect in custody cannot voluntarily relinquish the privilege against self-incrimination if he doesn’t know he has the privilege in the first place.

Additionally, as  the D.C. Circuit noted in U.S. v. Moore, allowing the prosecution to comment at trial on a defendant’s pre-Miranda silence while in custody provides a perverse incentive for law enforcement to delay Miranda warnings and use a defendant’s refusal to answer questions against him or her at trial. Until the Supreme Court clarifies this issue and resolves the circuit split, the extent of a defendant’s right to remain silent after arrest will vary by jurisdiction. 

Accuracy v. Finality: The Implications of Habeas Rights Based on AEDPA Interpretations

BACKGROUND

With the release of the film Just Mercy, the debate over balancing the prevention of wrongful convictions against the assurance of finality in serious criminal matters has once again come into the spotlight. This dispute is not only receiving national attention in pop culture, but is also making headlines in the judicial field with the emergence of a new circuit split.

A habeas petition is a method invoked by prisoners seeking an early release by challenging the legitimacy of their detention. In 1996, the ability to file habeas petitions was limited with the passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a prisoner has just one opportunity to file a motion to vacate the earlier sentence. A second opportunity is permitted only when the Supreme Court adopts a new and favorable rule of constitutional law. Prisoners are also restricted to just one habeas petition, unless they can demonstrate that AEDPA’s remedy is “inadequate or ineffective.”

THE ISSUE

Can the AEDPA remedy be considered inadequate or ineffective, thereby circumventing the single habeas restriction, when a new rule of statutory construction is adopted by a circuit court?

THE SPLIT

In Hueso v. Barnhart (2020), the Sixth Circuit split from the Fourth Circuit, interpreting AEDPA to increase restrictions on habeas rights. Hueso was convicted of drug trafficking in Alaska. He was initially sentenced to 10 years in prison; however, the term was doubled under a federal sentencing law. The year after his conviction, the Supreme Court rejected the interpretation permitting doubling. At the time, Hueso’s counsel had already filed a Motion to Vacate challenging evidence, which was rejected. Counsel then filed a habeas petition based on the Supreme Court ruling. The court denied the petition based on Sixth Circuit precedent that barred habeas cases from entertaining challenges based on sentencing. However, in 2016, the Sixth Circuit overturned its previous holding, thereby permitting sentencing-based habeas petitions.

As a result, Hueso’s counsel filed another habeas petition, but this time it was rejected under AEDPA. Hueso appealed to the Sixth Circuit, arguing that he should be permitted to file a second habeas under AEDPA because the AEDPA remedy was inadequate and ineffective. The Sixth Circuit denied the appeal on two bases. First, the Sixth Circuit reasoned that the Supreme Court ruling rejecting double sentencing could not be introduced in a subsequent challenge as the decision was made while Hueso’s first Motion to Vacate was pending. The court reasoned that the decision was available at the time of the challenge and, therefore, the failure to mention it barred a second attempt. Second, the Sixth Circuit held that the second habeas petition was correctly denied because the basis of the petition centered on a circuit court decision to permit sentencing-based habeas petitions. The Sixth Circuit rationalized that this decision was not constitutional law, as required under AEDPA, and thus could not be a basis for seeking to file subsequent petitions.

The Sixth Circuit’s reasoning diverged from the Fourth Circuit’s prior interpretation in United States v. Wheeler (2018). Wheeler was charged with conspiracy to possess with intent to distribute cocaine and possession of a firearm. Wheeler entered into a plea deal, agreeing to an enhanced sentence with a mandatory minimum of 120 months. The next year, Wheeler’s counsel filed a Motion to Vacate, citing both inefficient counsel and the fact that the conviction did not qualify for an enhanced sentence. The Motion was denied based on Fourth Circuit precedent allowing a maximum aggravated sentence to be imposed. Wheeler’s counsel sought to appeal by filing a certificate of appealability. While the appeal was pending, the previous precedent relied upon was overturned by the Fourth Circuit with a finding that a district court could only consider the maximum sentence that the particular defendant could receive in enhanced sentence matters. However, Wheeler’s appeal was still denied based on the reasoning that the new decision could not be applied retroactively.

Wheeler’s counsel subsequently filed a habeas petition, arguing that the AEDPA remedy was inadequate and ineffective. In this case, the Fourth Circuit upheld the inadequacy on appeal. The court reasoned:

“[W]e conclude that [AEDPA] is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; subsequent to the prisoner’s direct appeal and first … motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping requirements … for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

LOOKING FORWARD

Following the Wheeler decision, the Solicitor General, on behalf of the United States, filed a writ of certiorari with the United States Supreme Court. The petition was denied in March 2019, before the split emerged. The developing split has the potential for unfortunate consequences for prisoners based solely on the region they are imprisoned in. The split will inevitably result in disparate results concerning a prisoner’s rights to seek relief and retrial in the case of wrongful convictions. In the Sixth Circuit, Judge Karen Nelson Moore acknowledged the disparity in her dissent, pointing out that Hueso would “almost certainly prevail” had he attacked his sentence the first time, and noting that, as a result of the majority interpretation, Hueso would be spending another decade incarcerated.

High (Flying) Crimes: Where is Venue Proper for Crimes Committed on an Airplane in Flight?

Background

Determining proper venue for a trial is essential to guarantee the constitutional right to a fair trial. The determination also helps to avoid imposing undue hardship on that defendant in the course of the already strenuous and expensive litigation process by forcing her to defend in “an environment alien” to her. United States v. Johnson (1944).

With regard to criminal proceedings, all crimes must be prosecuted in the district in which the crimes were allegedly committed. In furtherance of this, the Supreme Court has provided a two-part inquiry to determine in which district the alleged crime was committed and, therefore, in which district venue is proper. “(A) court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.” United States v. Rodriguez-Moreno (1999).

The Issue

The standard seems simple enough, but what happens when the crime takes place in the sky? Where is venue proper when a crime occurs on an airplane during flight? In applying the Rodriguez-Moreno inquiry to an inflight crime, the first part (nature of the crime) will often be fairly straightforward. However, the second part (location of the commission of the crime) poses more difficulty and presents the legal question at issue.

When an inflight crime is committed, is venue proper in the district over which the airplane was flying when the crime occurred or in the district where the airplane lands after the inflight crime occurred? The answer to this question has serious implications for procedural logistics of prosecuting criminal offenses committed on airplanes as well as concerns of unfairness and undue hardship to criminal defendants accused of committing such crimes.

The Split

Traditionally, courts have deemed venue proper in the district in which the airplane lands, as held by the Eleventh Circuit in United States v. Breitweiser (2004) and the Tenth Circuit in United States v. Cope (2012). In their respective decisions, the Eleventh and Tenth Circuits found venue proper pursuant to 18 U.S.C.S. §3237, specifically §3237(a), in which Congress provided the method for ascertaining venue for crimes involving the use of transportation:  “Any offense involving the use of… transportation in interstate or foreign commerce… is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce… moves.”

The Eleventh Circuit has explained §3237(a) as “a catchall provision designed to prevent a crime which has been committed in transit from escaping punishment for lack of venue… where venue might be difficult to prove.” United States v. McCulley (1982). In Breitweiser, the Eleventh Circuit affirmed Breitweiser’s convictions for abusive sexual conduct with a minor and simple assault and rejected his challenge to the district court’s finding of venue. The Court reasoned venue was proper in the Northern District of Georgia (where the plane landed) pursuant to the “catchall” provision of §3237(a) because the continuing offenses involved the use of transportation in interstate commerce and, “[I]t would be difficult if not impossible for the government to prove… exactly which federal district was beneath the plane when Breitweiser committed the crimes.” The Court held, “[T]o establish venue, the government need only show that the crime took place on a form of transportation in interstate commerce.”

In Cope, the Tenth Circuit affirmed Cope’s conviction for operating a commercial airplane while under the influence of alcohol and rejected his challenge to venue in the District of Colorado. The Court found venue proper pursuant to §3237(a), citing Breitweiser for the proposition that one “need only show that the crime took place on a form of transportation in interstate commerce.” Since Cope committed the offense while operating the plane in interstate commerce, venue was proper in any district Cope had traveled “from, through, or into,” which included the District of Colorado where the plane landed.

The Ninth Circuit split from the Eleventh and Tenth Circuits on this issue in United States v. Lozoya (2019), in which the defendant was convicted of inflight simple assault in the Central District of California where the plane landed. In reviewing Lozoya’s conviction and her challenge to venue, the Court found the provisions of §3237(a) to be not applicable to establish venue in that district. Specifically, the Court found the statutory language “[continuing] offenses involving… transportation in interstate or foreign commerce” inapplicable after applying the Rodriguez-Moreno inquiry to the offense.

The Ninth Circuit determined that (1) as to the nature of the assault, Lozoya committed a single, instantaneous offense which, though it “occurred on a plane… did not implicate interstate or foreign commerce,” and (2) partly because of its instantaneous nature, the crime was likely committed only in the district over which the plane was flying at the time of the offense. Accordingly, the Court held venue would be proper only in the district over which the plane was flying when the crime occurred and reversed Lozoya’s conviction on the grounds of improper venue. The Court acknowledged (and Judge Owens’ dissent emphasized) “a creeping absurdity” in mandating the exact district over which an inflight offense occurred to be pinpointed for the purpose of ascertaining venue. Further, both the majority and dissent raised concerns about the feasibility and potential absurdity of this requirement and the unfair hardship it could impose on defendants. However, the Court did not find these concerns sufficient to overcome the Constitution and binding precedent. The Court also suggested, and the dissent expressed hope, that if Congress deemed this an absurd result, it would enact a new statute to ascertain venue for crimes committed at 30,000 feet.

Looking Forward

Judge Owens concluded by urging the Supreme Court to rule on this split or Congress to act to restore the rule finding venue where the plane lands. It remains to be seen whether the Supreme Court or Congress will take up this issue. In the meantime, frequent fliers, pay close attention if the captain tells you what you’re flying over. You never know when you’ll need venue.

Excessive Entanglement: The Legislative Prayer Doctrine and School Board Meetings

BACKGROUND

The Establishment Clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” This clause was motivated by the Framers’ experience with state-sponsored religious persecution and is thought to serve two purposes: (1) allowing individuals to express themselves according to the dictates of their own conscience; and (2) preventing the government from acting “to make belief — whether theistic or nontheistic, religious or nonreligious — relevant to an individual’s membership” within the political community. Freedom From Religion Foundation v. Chino (9th Cir. 2018).

In light of this purpose, courts express “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” American Humanist Association v. McCarty (5th Cir. 2017). School children are in the process of developing their own beliefs and learning to think for themselves — they are far more susceptible to pressure to conform to social norms and expectations. “The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice,” and therefore religious opining by those with authority over impressionable adolescents in a mandatory secular school has been deemed unacceptable in the eyes of the Supreme Court. Lemon v. Kurtzman (1971).

The relationship between Church and State is not one of total separation, but the Supreme Court has carved out certain exceptions to this Constitutional prohibition. Town of Greece v. Galloway (2014). Here, a resident challenged the practice of the town board’s practice of opening its monthly meetings with a prayer from an invited clergy member. Writing for a five-justice majority, Justice Kennedy writes: “Legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of higher purpose and expresses a common aspiration to a just and peaceful society.” The Court affirmed that the Establishment Clause was never meant to prohibit the longstanding tradition of legislative prayer. Despite the fact that some audience members were offended by the prayer, the Court found that the primary audience consisted of the board members who governed the town, and therefore, opening the board meeting with a prayer was permissible. The Court did not limit its ruling, however, leading to many questions as to how far this “legislative prayer” doctrine could extend.

THE ISSUE

Is the opening of a public school board meeting with a prayer or invocation permissible as an extension of the “legislative prayer” doctrine, or is it an unconstitutional entanglement of Church and State?

THE SPLIT

The Fifth and Ninth Circuits, in particular, have diverged on the issue of whether school boards should be permitted to invoke religious doctrine in meetings. The difference in opinion stems from an overall uncertainty as to whether school board meetings are viewed more as school-sanctioned events or legislative sessions.

In American Humanist Association v. McCarty (5th Cir. 2017), the AHA challenged the actions of the Birdville Independent School District in having a student speaker deliver an invocation prior to each of its monthly school board meetings. The invocation was given after another student led the Pledge of Allegiance and was normally some sort of prayer. The Fifth Circuit upheld the student-led invocation, arguing that the school board is “more like a legislature than a classroom,” distinguishing it from the public-school setting. The Court based its decision on the “legislative prayer” doctrine from Town of Greece, claiming that the Framers saw this form of prayer as merely a “benign acknowledgment of religion’s role in society.” The Court acknowledged that there may be children in the audience, but maintained that their presence did not transform the legislative nature of the school board meeting.

One year later, the Ninth Circuit split with its sister circuit in Freedom From Religion Foundation v. Chino Valley Unified School District (9th Cir. 2018).In this case, the school board permitted a prayer, usually led by a clergy member, to begin its opening sessions. The clergy members were invited from a list of eligible local religious leaders and were permitted to give the invocation on a first-come, first-serve basis. It also became common practice for board members to use these opening invocations as an opportunity to link student, teacher, and district accomplishments to Christianity by citing Bible verses and stressing the need for God in schools and society. The school board had a student representative who attended the meetings, and commonly invited students to highlight their various accomplishments. The Ninth Circuit ruled this opening invocation to be a violation of the Establishment Clause. The Court differentiated the permissible town board meeting in Town of Greece from this case in that the town board meeting was typically attended by mature adults who could express dissent, and had the option to remain or leave at will. “Instead, these prayers typically take place before groups of school children whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.” The Court further argued that public schools lack the historical foundation that legislatures have in allowing opening prayer. The court reasoned that the school board should not be permitted to invoke such religious doctrine in their meetings.

LOOKING FORWARD

Until this split is reconciled, school districts will continue to face uncertainty as to how to proceed with such a practice. As of now, it is not clear if the school board meeting is more like a school-sanctioned event or a legislative session, an important distinction in deciding the issue. Due to these important constitutional ramifications, the Supreme Court should intervene and clarify its ruling in Town of Greece. The conflict here is important because it calls into question the protections afforded by the First Amendment, a bedrock of our democratic society. Additionally, this concerns the imperative right of children in a public school to be free from religious indoctrination, allowing them to develop their beliefs and faculties unimpeded by religious pressure from public authority figures.

Right to Refrain: Do Abortion Providers Have a First Amendment Right to Free Speech Under Mandatory Narrated Ultrasound Laws?

Background

The First Amendment prohibits Congress or any other legislative body from enacting laws that abridge freedom of speech. The Supreme Court has distinguished between legislation that regulates the content of speech and legislation that regulates conduct associated with the speech. Content-based speech restrictions are generally presumed to be invalid and must face strict scrutiny before the courts. This requires the government to prove that the law is necessary to achieve a compelling state interest — a very high bar that often results in most content-based speech restrictions failing.

The First Amendment not only guarantees the right to speech, it also guarantees the right to refrain from speech. In Riley v. Nat’l Fed’n of the Blind (1988), the Supreme Court held that regulations that compel speech are inherently content-based restrictions, as they compel the speaker to speak when they would have otherwise remained silent. As such, regulations that compel speech must also generally face some form of strict or heightened scrutiny before the court.

In conjunction with the recent rise in abortion regulation, multiple states have passed legislation mandating that narrated ultrasounds be performed by physicians prior to abortion procedures. While specifics vary slightly between states, the laws have the same general premise: physicians are required to perform an ultrasound, display the sonogram, and describe the fetus to the patient. Under these laws, the physician must display and describe the ultrasound, even if the patient actively protests. Most states provide an exception only for emergency situations, although exceptions also vary by state. If a physician refuses to perform the ultrasound, he or she may be subject to multiple forms of punishment, including fines, referral to the state medical licensing board, and an inability to perform future abortions.

The Issue

Reproductive rights and other activist groups have recently joined forces to approach these regulations from a non-traditional vantage point. The groups are straying from the traditional approach of invalidating abortion legislation under Roe v. Wade (1973), where the Supreme Court found a Constitutional right to an abortion under the Fourteenth Amendment. Instead, the groups have turned their focus to the impact of these regulations on the physicians they are intended to regulate. These activist groups have argued that the mandatory narration laws are unconstitutional not because they prohibit access to abortion, but because they compel physicians to engage in speech from which they otherwise would refrain. This has ultimately led to a single question: what are abortion providers’ First Amendment rights under mandatory narrated ultrasound laws?

The Split

In Stuart v. Camnitz (2014), the Fourth Circuit held that North Carolina’s narrated ultrasound law violated physicians’ First Amendment right to refrain from speaking “beyond the extent permitted for reasonable regulation of the medical profession.” The Court noted that while “professionals may be subject to regulations by the state that restrict their First Amendment freedoms when acting in the course of their professions, professionals do not leave their speech rights at the office door.” The Court held that this regulation of speech and professional conduct warranted heightened intermediate scrutiny, under which the law failed. The Fourth Circuit stated that “while it is true that the words the state puts into the doctor’s mouth are factual, that does not divorce the speech from its moral or ideological implications,” emphasizing the fact that context matters. Because the speech that the state was attempting to compel in this case was so heavily content-specific and did not allow any room for physicians to exercise professional judgment, the Court held that the law unconstitutionally attempted to make physicians the “mouthpiece of the state” to promote their own “clear and conceded” pro-life position.

The Sixth Circuit recently reached the exact opposite conclusion in EMW Women’s Surgical Center P.S.C. v. Beshear (2019). The Court found that Kentucky’s mandatory narrated ultrasound law did not violate physicians’ First Amendment rights, noting that the law simply “requires the disclosure of truthful, non-misleading, and relevant information about an abortion.” Directly addressing the Fourth Circuit’s 2014 decision, the Court stated that “Stuart’s basis for applying heightened scrutiny is called into question by Supreme Court precedent.” The Court argued that the appropriate level of scrutiny was much lower than that called for by the Fourth Circuit and that, under this new lower level of scrutiny, the law survived. Further opposing the argument that the narrated ultrasound laws inappropriately interfere with the doctor-patient relationship, the Court found that the laws did not interfere “any more than other informed-consent laws,” despite the fact that they were regulating the controversial subject of abortion. Countering the Fourth Circuit’s opinion that the compelling of physicians to deliver the state’s message was unconstitutional, the Sixth Circuit held that “as a First Amendment matter, there is nothing suspect with a State’s requiring a doctor, before performing an abortion, to make truthful, non-misleading factual disclosures, relevant to informed consent, even if those disclosures relate to unborn life and have the effect of persuading the patient not to have an abortion.”

Looking Forward

 The future of this issue remains uncertain. The Court recently made headlines for accepting an admitting privileges case out of the Fifth Circuit, the first abortion-related case since the addition of conservative Justices Gorsuch and Kavanaugh. However, the Court has generally been hesitant to accept abortion-related cases and has already denied a previous appeal for this issue. In 2014, the Court denied North Carolina officials’ petition to appeal the Fourth Circuit’s decision. As of September 26, 2019, the American Civil Liberties Union has filed a petition for a writ of certiorari for the Supreme Court to hear its appeal from the Sixth Circuit’s decision. A response is due from the Secretary of the Kentucky Cabinet for Health and Family Services, Adam Meier, by the end of October before the Court will begin to consider the petition.

For further reading, see: Sex, Lies, and Ultrasound (2018) by Case Western University School of Law Associate Dean and Professor B. Jessie Hill and Professional Rights Speech (2016) by William & Mary Law School Professor Timothy Zick.

Competing Branches: Judicial Scrutiny and Presidential Commutation of Prison Sentences

Background

Presidential commutation, or reduction, of prison sentences is a well-established power of the executive branch. Article II of the United States Constitution gives the President the “power to grant Reprieves and Pardons” for criminal offenses against the United States. U.S. Const. art. II, §2. However, the implications of such an action on the judiciary’s subsequent ability to grant a writ of habeas corpus are yet to be determined.

A writ of habeas corpus permits an inmate to have his or her case reviewed by a court to determine whether the imprisonment is lawful. If there have been changes in law relevant to the case, or if for any number of reasons, the inmate believes the original sentence may no longer hold, he or she may ask that a court hear the claim. Relatedly, Article III of the Constitution provides an important constraint on the authority of the judiciary, declaring that courts cannot hear a moot issue. In other words, the conflict before the court has to be one that is “live,” or where the parties still have a “cognizable interest in the outcome.”

The Issue

The question, then, is what happens once a prisoner’s sentence has been reduced by presidential commutation?

1.         Does any appeal by the affected inmate for review become moot, divesting the judiciary of its power to grant writs of habeas corpus?

2.         Does the judiciary still have the authority to review that case, or has it been transformed from a judicial sentence to an executive one?

The Split

In recent years, cases before the Fourth and Sixth Circuits have raised these exact questions. The circuit courts are split, with the Fourth Circuit taking a seemingly narrow view of its jurisdictional scope, while the Sixth Circuit applies its authority more broadly.

In United States v. Surratt (2017), the Fourth Circuit held that presidential commutation — in this case, shortening a sentence for crack cocaine possession from life to 20 years — divested the court entirely of its power to review the case. Though the ruling features only a two-sentence opinion, the concurring opinion explains the logical merits. It states, “absent some constitutional infirmity in the commutation order, which is not present here, we may not readjust or rescind what the President, in the exercise of his pardon power, has done.” It asserts that the nature of the sentence has been transformed by the action, and that the prisoner is no longer serving a judicially imposed sentence, but a presidentially commuted one — to interfere with that would be to act outside of the court’s jurisdictional purview. In the court’s view, the inmate had accepted the offer made by the President, which created finality in the decision, thus precluding the court from further intervention.

Deviating from this opinion, in Dennis v. Terris (2019), the Sixth Circuit found that such an exercise of presidential power does not take away from the judiciary’s authority to grant a writ of habeas corpus. The court acknowledged the executive’s power, but refused to accept the position that the “altered sentence becomes an executive sentence in full, free from judicial scrutiny with respect to mistakes the courts may have made.” In this view, there is no overlap between the power exercised by the executive and the authority the court is asked to assert. Here, the question is not whether the commutation should be amended, but rather whether the original sentence itself would hold up under scrutiny and application of modern law. The argument made by this court is that a commutation or pardon by the President does not change the nature of or eliminate the original sentence. Say, for example, an inmate’s sentence is commuted with the added condition that the inmate maintain good behavior. If that condition is not met, the commutation is revoked and the original sentence takes effect once again. The original sentence remains in place all along, “ready to kick into full effect if the recipient violates the conditional cap.” Likewise, the sentence is, all along, subject to be amended by the court system that imposed it. Moreover, the court argues that a commuted sentence is, on principle, not rendered moot. Commutation does not take away any interest the inmate has in seeking relief for the remainder of his or her sentence. If a court were to find the inmate’s sentence unlawful, then the original sentence would simply go away. In other words, the conflict is still “live,” giving the court jurisdiction to revise and reevaluate the legality of its own past decisions.

Looking Forward

The power of a President to shorten or forgive the sentences of prisoners is an exercise in fairness that dates back to the creation of the U.S. Constitution, and has played a role in the criminal justice system ever since. This current split reveals a fundamental difference in how the courts view their roles as part of the judiciary. Whether or not an overlap between branches of government is formed by an executive action is a question of constitutional interpretation that carries serious consequences for how justice will be carried out across the United States in the future.

Deliberate Indifference: Does the Eighth Amendment Guarantee Access to Gender Confirmation Surgery For Transgender Prisoners?

BACKGROUND

The Eighth Amendment explicitly prohibits cruel and unusual punishment, but what are the parameters of this protection? In Estelle v. Gamble, the Supreme Court expanded the definition to include “deliberate indifference to serious medical needs of prisoners.” This 1976 decision proscribes a form of inhumane treatment that extends beyond physical punishment:

“(D)enial of medical care may result in pain and suffering which no one suggests would serve any penological purpose… The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common law view that “it is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”

However, it is not the case that every prisoner’s claim for inadequate medical treatment necessarily involves an Eighth Amendment violation. Under Kolisek v. Spencer, to prevail on such a claim, a plaintiff must prove that: (1) a serious medical need exists, and (2) prison administrators’ acted with deliberate indifference to that need.

THE ISSUE

The aforementioned two-prong test comes into play when deciding whether an inmate can receive treatment for gender dysphoria. According to the World Professional Association for Transgender Health, gender dysphoria is defined as “distress that is caused by discrepancy between a person’s gender identity and that person’s sex assigned at birth.” In the recently decided case, Edmo v. Corizon, the Ninth Circuit went on to recognize that, if left untreated, gender dysphoria can lead to “debilitating distress, depression, impairment of function, substance use, self-surgery to alter one’s genitals or secondary sex characteristics, self-injurious behaviors, and even suicide.” Despite this, the question of whether gender dysphoria is a serious medical issue for inmates is not at issue here.

With regard to gender dysphoria, treatment ranges from changes in gender expression to gender confirmation surgery (GCS). The latter is politically controversial, but a growing body of evidence demonstrates that it is an effective treatment for gender dysphoria. The Fifth Circuit, in Gibson v. Collier, expressed concern that transgender prisoners are not guaranteed “the best treatment for gender dysphoria, only that which prevents their medical well-being from dropping below ‘society’s minimum standards of decency.’”

The legal controversy at issue here involves the definition of “adequate treatment,” specifically the standard for “deliberate indifference” to an inmate’s medical need in the context of transgender prisoners. The question becomes whether a transgender inmate’s Eighth Amendment right against cruel and unusual punishment is violated when GCS is denied and substituted with less invasive treatment.

THE SPLIT

The Fifth and Ninth Circuits diverge in their interpretation of the First Circuit’s opinion in Kosilek v. Spencer, which held that Michelle Kosilek, an anatomically male prisoner who identified as female, was not entitled to GCS. The Court reasoned that, although her gender dysphoria was severe, it was unclear whether GCS would provide significantly greater relief than the non-surgical treatment she was already receiving. The prison was found not deliberately indifferent, and the claim was denied.

The Fifth Circuit has interpreted Kosilek as creating a de facto, blanket ban on GCS on the grounds that there exists controversy about whether the procedure is ever medically necessary. In Gibson v. Collier, Vanessa Gibson (who the Fifth Circuit insists on calling Scott Gibson), is a male-to-female transgender inmate who has been presenting as female since the age of fifteen. Despite receiving hormonal therapy from the prison, Vanessa showed signs of depression, attempted to castrate herself, and even attempted suicide three times. The Court, however, held that withholding GCS from her is not “deliberate indifference” because there exists controversy about the efficacy of the procedure, finding that an Eighth Amendment violation did not occur. The Court granted summary judgment against Gibson for failing to provide sufficient evidence of medical indifference, and reaffirmed the prison policy that denied the inmate’s right to be evaluated as a candidate for GCS in the first place.

In contrast, in Edmo v. Corizon, the Ninth Circuit has interpreted the Kosilek decision by holding that the medical necessity of GCS must be determined on a case-by-case basis. In this case, Adree Edmo had received non-invasive treatment for her gender dysphoria as an inmate in Idaho. Despite these efforts, Edmo continued to suffer from suicidal ideations, depression, and attempts to self-castrate. Citing the district court’s lengthy discussion of the latest research on gender dysphoria and the efficacy of GCS, the Court determined that it was medically necessary for Edmo to receive the surgery. Due to the increased social awareness of transgender healthcare and significant advancement in treatment, the Ninth Circuit held: where an inmate’s health record shows medical necessity in treating gender dysphoria, and prison officials deny such treatment, those officials are in violation of the Eighth Amendment.

LOOKING FORWARD

In concluding his opinion in Gibson, Judge Ho argued that “it cannot be deliberately indifferent to deny in Texas what is controversial in every other state.” It is, however, this exact controversy that highlights the need for certiorari. It is clear that the lack of access to ever evolving and effective treatment causes severe medical harm, as was the case with Michelle, Vanessa, Adree, and several other transgender inmates. This predictable and preventable harm falls well below the “minimum standards of decency” the Eighth Amendment aims to preserve.

Reading the Fifth: Supreme Court Exercises its Right to Remain Silent on What Comprises a “Criminal Case”

BACKGROUND

The Self-Incrimination Clause of the Fifth Amendment protects individuals from being compelled to bear witness against themselves in a criminal case. Courts have struggled with the scope of this protection, particularly regarding what comprises a “criminal case.” Does the term extend to pre-trial proceedings, such as a bail hearing? Has a person’s Fifth Amendment right against self-incrimination been violated if the compelled statement in question is never used in a court of law?

Over the past thirty years, the Supreme Court has never directly resolved the question of what constitutes a “criminal case.” In dicta from United States v. Verdugo-Urquidez (1990), the Supreme Court indicated that the Fifth Amendment right was merely a trial right. But later, in Mitchell v. United States (1999) the Supreme Court indicated that the right extended to sentencing hearings.

The question of what comprises a criminal case was more recently addressed in Chavez v. Martinez (2003). In his plurality opinion, Justice Clarence Thomas declared that a statement was not a violation of the Fifth Amendment right against self-incrimination where the individual first hadn’t been charged with a crime and where the individual’s statements had not been used in a criminal case. Thomas further wrote:

“Mere coercion doesn’t violate the self-incrimination clause minus use of compelled statements in a criminal case against the witness…a ‘criminal case’ at the very least requires the initiation of legal proceedings.”

Three other justices disagreed, arguing that self-incrimination is complete the moment a confession is compelled, regardless of whether the statement is used at trial.

After the opinions in Chavez were released, a circuit split developed over the definition of a criminal case under the Fifth Amendment.

THE ISSUE

Does the Fifth Amendment right against self-incrimination include statements compelled in pre-trial proceedings?

THE SPLIT

The Third, Fourth and Fifth Circuits resolved this question in favor of Justice Thomas’s view, holding that the right against self-incrimination is only a trial right. In Renda v. King (2003), the Third Circuit determined that questioning while in police custody without providing Miranda warnings is not a Fifth Amendment violation if the individual is never charged with a crime and their responses are never used in a trial.

But on the other hand, in Vogt v. City of Hays (2017) the Tenth Circuit resolved this question in favor of a broader reading of the term “criminal case,” allowing the term to include certain pre-trial proceedings. The Second, Seventh, and Ninth Circuits take a similar view of the right against self-incrimination.

The facts of Vogt are unusual. In Vogt, a police officer for the City of Hays admitted during an interview with a neighboring police department that he had illegally retained a knife obtained during his employment as a police officer. The neighboring police department agreed to hire Vogt on the condition that he report the illegal retention of the knife to the Hays police department. Upon Vogt’s admission, Hays initiated a criminal investigation against him. The charges were dropped, but Vogt sued, claiming that the state violated his Fifth Amendment right against self-incrimination by inducing him to confess.

The Tenth Circuit in Vogt concluded—after examining the text of the Fifth Amendment and the Founders’ intent—that the right against self-incrimination includes pre-trial proceedings. The court noted that the Fifth Amendment makes no mention of “trial” or “criminal prosecution,” instead using the term “criminal case.” The court pointed to Counselman v. Hitchcock (1892) wherein the government argued that a witness could not invoke the Fifth Amendment in a grand jury proceeding because it was not a “criminal case.” The Supreme Court rejected the government’s argument there, holding that the “criminal case” of the Fifth Amendment is a broader term than the Sixth Amendment’s “criminal prosecution.”

Additionally, to determine the meaning of “criminal case,” the Tenth Circuit consulted the most prominent dictionary of the Framers’ era: purportedly Noah Webster’s An American Dictionary of the English Language. In this dictionary, “case” was defined as “a cause or suit in court.” This definition, where “suit” is understood to be nearly synonymous with “cause,” indicates that the Framers understood the criminal case to encompass more than merely the trial. From these facts, Tenth Circuit concluded that the right against self-incrimination is more than just a trial right.

LOOKING FORWARD

The City of Hays appealed the Tenth Circuit’s decision in Vogt, and the Supreme Court granted certiorari on September 28, 2017. The case was argued before the Court on February 20, 2018; however, whether this split will be resolved by the Vogt appeal is yet to be seen. Justices Samuel Alito and Sonia Sotomayor both noted the case was “odd,” and Justice Breyer even questioned whether the strange and distinguishing facts of Vogt made it an appropriate one for the Court to take. The Supreme Court has the option to dismiss the case as improvidently granted, but it is likely that the Court will publish an opinion resolving this constitutional issue soon.

On a constitutional question of this magnitude, let’s hope the Supreme Court doesn’t choose to plead the Fifth.

Does Pre-Trial Detention Toll a Term of Supervised Release?

Supervised Release

For some people who are convicted of a criminal offense, a sentence can include a term of supervised release (also known as special or mandatory parole). Under 18 U.S.C. § 3624, the federal supervised release statute, a term of supervised release begins on the day that a person is released into the custody of a parole officer. The federal supervised release statute also provides that the term of supervised release is tolled during any period where the person is imprisoned in connection with a conviction for a different federal, state, or local crime.

The Issue

Jason Mont began a five-year period of supervised release on March 6, 2012. On June 1, 2016, Mr. Mont was arrested on state charges and held in pre-trial detention until he pleaded guilty in October 2016. In June 2017, Mr. Mont’s supervised release was revoked, and he was ordered to serve an additional 42 months for violating his supervised release. In United States v. Mont (2018), Mr. Mont claimed that the court did not have jurisdiction to revoke his supervised release, arguing that his supervised release ended on March 6, 2017 (five years after he was initially released). Following circuit precedent established by United States v. Goins (2008), the Sixth Circuit held that pretrial detention that leads to a conviction counts as time “in connection with a conviction,” as described in the federal statute.

The Split

Several circuits have spoken to whether time served in pretrial detention counts as time “in connection with a conviction” for the purposes of the federal supervised release statute, in addition to the Sixth Circuit’s previous ruling in Goins. The Fourth Circuit in United States v. Ide (2010), the Fifth Circuit in United States v. Molina-Gazca (2009), and the Eleventh Circuit in United States v. Johnson (2009) have all held that pretrial detention counts for the purposes of the federal supervised release statute. In contrast, the D.C. Circuit in United States v. Marsh (2016) and the Ninth Circuit in United States v. Morales-Alejo (1999) held that time served in pretrial detention does not qualify.

The Ninth Circuit is the only circuit that has directly addressed the statutory language in the federal supervised release statute:

“A plain reading of this language…suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted.”

In Mont, the Sixth Circuit explicitly rejected this interpretation.

Looking Forward

This case has not attracted much attention within the legal community since the Sixth Circuit’s ruling was handed down this past February, but it does have important ramifications for persons whose sentences include a period of supervised release. With six circuits having weighed in on opposite sides of a matter of federal statutory interpretation, the time is ripe for an aggrieved party to petition the Supreme Court for a definite ruling on this issue. Mr. Mont has ninety days from the date of the Sixth Circuit’s judgment to file a writ of certiorari to the Supreme Court – while this deadline has not passed, it is not yet clear whether he will file a petition. In the alternative, given that this issue arises out of different interpretations of a federal statute, Congress could pass a bill to amend the current statute and clarify whether pretrial detention that leads to a conviction counts as time served in connection with a conviction.