COPS: Cell Phone Edition

BACKGROUND

On May 25, 2020, police officer Derek Chauvin was caught on a cell phone camera kneeling on the neck of an unarmed black man, George Floyd. The police officers at the scene tried to dodge the cameras under the guise of qualified immunity, but cell phones on every street corner nowadays make this difficult. At Chauvin’s murder trial, the prosecution played the entire nine and a half minutes of the cell phone footage as the focal point of their case against the former police officer.

The civilian recording of the murder of George Floyd came nearly two decades after a Los Angeles citizen recorded police officers beating an unarmed Rodney King. At the time of the Rodney King beating, footage of police interactions was rare, but now, interactions between police and civilians are being caught on camera more than ever before. In the last decade, First Amendment doctrine has been clarified to include the right to record public police actions under the right of the public to has access to information. 

When it comes to civilians recording police actions, the First Amendment and doctrine of qualified immunity often come into conflict with each other. On one hand, judicial interpretation of the First Amendment has trended toward the conclusion that the freedom of the press applies to freelance civilians as well. On the other hand, “qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” City of Escondido v. Emmons (2019). 

ISSUE

Is there a First Amendment right to record the police in public, and does this right outweigh the doctrine of qualified immunity?

THE SPLIT

Due to the increased frequency of civilians recording their interactions with police, this issue has come up many times in the federal circuits, and a split in judgment has emerged as to whether the First Amendment clearly establishes the right to record police activity. The Tenth Circuit recently joined the Third Circuit, saying such a right isn’t clearly established. Meanwhile, the First, Seventh, Ninth, and Eleventh Circuits have said the right is clearly established.

The Tenth and Third Circuits

When police in Denver, Colorado began using force while arresting an uncooperative suspect in public, Levi Frasier began video-recording the interaction. After the arrest, an officer followed Mr. Frasier to his car and wanted him to hand over the video. Mr. Frasier did show the officers the video on his tablet-computer, but suddenly Officer Evans and other Denver Police Department members surrounded Mr. Frasier and pressured him to turn over the video, eventually snatching the tablet-computer out of his hands without his consent. Mr. Frasier contended that he had the right to record the video under the First Amendment while the police officers contended that their actions were justified under the doctrine of qualified immunity. Frasier v. Evan (10th Cir. 2021).

The Tenth Circuit held that since the “right to record [the officers] in the performance of their official duties in public spaces was not clearly established at the time of their alleged conduct in August 2014,” the officers were entitled to qualified immunity and did not violate the First Amendment. Further, the Tenth Circuit dismissed the argument that the Denver Police Department was liable for failure to properly train officers on the First Amendment rights of the civilians that they interact with. The court reasoned that since the First Amendment right to record was not clearly established by judicial precedent at the time of this incident, qualified immunity trumped Mr. Frasier’s First Amendment right to record the police.

The Third Circuit encountered a similar issue when Richard Fields and Amanda Geraci attempted to record Philadelphia Police while they were “carrying out official duties in public.” Fields v. City of Philadelphia (3d Cir. 2017). The court was clear that “recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.” However, there were reasonable “time, place, and manner restrictions” to the right to record. The court clarified that in this case, however, the recording in a public place was protected. Despite the clear First Amendment right to record, the Third Circuit held that the police officers were not liable for retaliation against those who recorded the video, due to qualified immunity. The court reasoned that since these incidents occurred in 2012-2013, a reasonable officer might not have known about the First Amendment rights of Mr. Fields and Ms. Geraci since the doctrine was not sufficiently clarified at this time.

The First, Seventh, Ninth, and Eleventh Circuits

Simon Glik was arrested for violating Massachusetts’ wiretap statute and other state-law offenses after he recorded several police officers arresting a young man on the Boston Common with his cell phone’s camera. Glik v. Cunniffe (1st Cir. 2011). The First Circuit reasoned that “the First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public?” The court strongly answered this question affirmatively. The court held that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” The court concluded that filming government officials engaged in their public duties is a prime example of information that is protected by the First Amendment, and this right to record is not overcome by qualified immunity.

 On August 5, 1990, Jerry Fordyce attempted to record a public protest march, but City of Seattle police officers interfere. Fordyce v. City of Seattle (9th Cir. 1995). Mr. Fordyce considered himself a part of the protest and wanted to film it so that it could later be broadcast on the news. There were police officers in Fordyce’s video, who became the target of rude and profane insults as the protest progressed. Some officers ignored Fordyce and the other protesters, but others tried to interfere and “physically…dissuade Fordyce from his mission. Later in the day, Fordyce was arrested for recording other bystanders against their wishes and violating a Washington privacy law. The charges were later dropped, and Fordyce sued the police department for violating his First Amendment right to record a newsworthy event. The Ninth Circuit held that “a genuine issue of material fact does exist regarding whether Fordyce was assaulted and battered by a Seattle police officer in an attempt to prevent or dissuade him from exercising his First Amendment right to film matters of public interest… [including when Fordyce’s] camera was deliberately and violently smashed into his face by Officer Elster while Fordyce was publicly gathering information with it during the demonstration.” The court reasoned that since the protest was obviously a newsworthy event, there was a First Amendment protection to recording it, even when there were individual police officers who did not want to be recorded.

James and Barbara Smith sued police in Cumming, Georgia after they allegedly harassed the couple. Mr. Smith was prevented from recording the police in violation of his First Amendment rights. Smith v. City of Cumming (11th Cir. 2000). The Eleventh Circuit held that there was a clear “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” However, the court also held since the Smiths sued under 42 U.S.C. § 1983, they were required to “prove that the conduct complained of deprived them of “a right, privilege or immunity secured by the constitution or laws of the United States.” This ruling is particularly notable since almost all plaintiffs seeking relief for a constitutional rights violation will utilize § 1983.

LOOKING FORWARD

As police officers come under greater public scrutiny and calls for police reform grow louder across the country, there are likely going to be future incidents between civilians with cell phones and officers. None of the above-mentioned cases have progressed to the Supreme Court. However, it is likely that the issue of the First Amendment in the digital age is not going anywhere. Considering that the law has not fully caught up with the technological revolution of the twenty-first century, judicial interpretation will continue to be called upon to fill in the gaps.

 

For further reading on recent Supreme Court decisions on the scope of the First Amendment and cell phones, see: Mahanoy Area School District v. B.L. (2021).  For further reading on a Seventh Circuit decision invalidating an Illinois eavesdropping law that prevented all recording without consent, see: Am. C.L. Union of Illinois v. Alvarez (7th Cir. 2012).

Is Denying Sex-Reassignment Surgery to Prisoners a Violation of the Eighth Amendment?

BACKGROUND

The Eighth Amendment to the United States Constitution protects against “cruel and unusual punishment.” What constitutes “cruel and unusual” has been left to the courts to sort out, and this standard has become even more complicated when courts assess the medical needs of patients in prison.

 The Eighth Amendment has been interpreted in a variety of situations, which includes protecting the medical needs of prisoners. In the case of Estelle v. Gamble (1976), the United States Supreme Court set the standard violation of  prisoner’s Eighth Amendment medical rights as “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” In recent years, courts have used this standard to discern if those with gender dysphoria are entitled to sex-reassignment surgery while in prison, and if withholding the surgery constitutes a violation of their Eighth Amendment rights. 

ISSUE

Is it a violation of the Eight Amendment for a physician to elect not to perform sex-reassignment surgery on a person in prison who experiences gender dysphoria?

THE SPLIT

Ninth Circuit

Recently, the Ninth Circuit created a split amongst the circuit courts over sex-reassignment surgery in prison under the Eighth Amendment. The court chose to focus on a standard created by the World Professional Association for Transgender Health (WPATH), which is a medical standard of care that was created to decide the necessity of a patient’s sex-reassignment surgery. This court looked at if the prisoner fell under this standard, and if it was a violation of the Eighth Amendment to not grant surgery if a patient does fall under the standard.

In Edmo v. Corizon, Inc. (2020), the plaintiff alleged that her Eighth Amendment rights had been violated because she was denied sex-reassignment surgery by her doctor who elected to keep her on a hormone regiment. The plaintiff had been diagnosed with depressive disorder, anxiety, alcohol and drug addiction, and gender dysphoria. The plaintiff had tried to castrate herself and attempted suicide multiple times. The State argued that WPATH was not the only medical standard, and, even if it was used, the plaintiff failed to meet some of the criteria, including that the plaintiff’s medical health concerns were not well controlled and the plaintiff had not lived twelve continuous months in her gender role because she was in prison. The court ultimately decided to use WPATH to determine the medical standard of care, concluding that the plaintiff was treated with deliberate indifference because the doctor knew the plaintiff had attempted to castrate herself in the past and still did not perform the surgery. The court held that sex-reassignment surgery is a medical necessity and that the doctor violated the plaintiff’s Eighth Amendment rights which protect against “cruel and unusual punishment.” The court therefore mandated that the “state pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment.”

First, Fifth, Seventh and Tenth Circuits

The First, Fifth, Seventh and Tenth Circuits all take a different position from the Ninth Circuit on the Eighth Amendment’s protections. Each of these courts has held that a doctor withholding sex-reassignment surgery is not “cruel and unusual punishment” for a prisoner under the Eighth Amendment. However, each court comes to their conclusion for slightly different reasons.

First Circuit

In Kosilek v. Spencer (2014), the First Circuit reversed the district court’s decision to grant injunctive relief to a plaintiff who did not receive sex-reassignment surgery. While the First Circuit recognized the existence of WPATH, it did not heavily rely on it for the court’s decision. The court decided that the current treatment for the plaintiff (hormone, hair removal, and access to “feminine attire”) was enough, and the doctor’s decision not to provide sex-reassignment surgery did not violate the plaintiff’s Eighth Amendment rights. The court also found compelling evidence that security would be a difficult problem to solve post-surgery, and that the current medical regimen did not create the same housing problem as sex-reassignment surgery.

Fifth Circuit

The Fifth Circuit held in Gibbson v. Collier (2019) that declining to perform sex-reassignment surgery on a prisoner did not violate the prisoner’s Eighth Amendment rights. The court held that because of medical disagreement over the necessity of sex-reassignment surgery, including disputes in the medical community over WPATH, the surgery could not be definitively called a necessity. The court also stated that it was not “cruel and unusual punishment” to withhold a medical treatment that no other prison had previously given to inmates. The court went so far as to say it would be unusual if the prison did grant treatment.

Seventh Circuit

The Seventh Circuit looked at if the state had qualified immunity in the case of a prisoner being refused sex-reassignment surgery. In Campbell v. Kallas (2019), the plaintiff was on a hormone regimen and her doctors refused to provide her with sex-reassignment surgery. The Seventh Circuit, similar to the First Circuit, acknowledged challenges that providing housing for inmates with sex-reassignment surgery could create. The court also acknowledged WPATH, arguing that the 12 month real-life criteria standard was important and could not be fully experienced in prison. The court ultimately decided to reverse the district court’s decision to deny qualified immunity.

Tenth Circuit

In Lamb v. Norwood (2018), the Tenth Circuit decided to uphold the summary judgment decision of the district court and found that the prison officials did not violate the plaintiff’s rights. The court decided that prison officials were not acting with indifference when they were following the treatment of hormone therapy and psychological counseling recommended by a medical doctor.

LOOKING FORWARD

Currently, 1.4 million adults in the United States identify as transgender. As medicine continues to understand gender dysphoria, courts must continue to review Eighth Amendment rights violations accordingly. With the recent split, the Supreme Court may very well take matters into its’ own hands and make a decision about the necessity of sex-reassignment surgery.

It is also just as likely that Congress will address the issue. Recently, Congress has made some moves in regards to transgender healthcare right’s through Section 1557 of the Affordable Care Act, where gender identity was acknowledged as protected from denial of healthcare. Currently, Congress is also reviewing the Equality Act, which highlights the Fourteenth Amendment’s Equal Protection Clause, and prohibits discrimination based on gender identity in a multitude of establishments, including health care. While this bill has only passed the House of Representatives and is not narrowly focused on the rights of those in prison, it shows a step in the direction of Congress resolving the current split.

The State of Mississippi vs. 50 Years of Abortion Precedent: What June Medical Standard Should Courts Apply to Abortion Restrictions?

BACKGROUND

The constitutionality of abortion restrictions has long been debated by American courts. The Supreme Court first found a constitutional right to abortion in the 1973 case of Roe v. Wade (1973), holding that the Fourteenth Amendment’s right to privacy also applied to a pregnant person’s decision to access abortion services. According to the Court, this right to privacy in matters concerning abortion could not be overridden by the State. However, this right is not absolute, and the Court has repeatedly upheld various restrictions on abortion access in the nearly fifty years following the Roe decision.

These restrictions are typically justified by a State’s “legitimate interest” in protecting the health of pregnant people, as well as the potential life of the unborn fetus. The most prominent example of the Court upholding abortion restrictions came approximately twenty years after the Roe decision, in the 1992 case of Planned Parenthood v. Casey (1992). In Casey, the Court reaffirmed the constitutional right to abortion, while clarifying the extent to which states could regulate the procedure. According to the Casey Court, reasonable regulations restricting abortion access are generally constitutional, so long as the regulations can pass muster under the undue burden standard. For a regulation to be upheld under this standard, it must not place a substantial obstacle in the path of a person seeking an abortion before the fetus reaches the point of viability. In the Casey decision, this undue burden standard was used to strike down a regulation that required a woman to notify her husband before receiving an abortion, but was simultaneously used to uphold various other regulations, including a mandatory 24-hour waiting period and a requirement that a minor seeking an abortion receive parental consent (or receive court approval through a judicial bypass process). This undue burden standard has subsequently been used by courts at all levels of the judicial system to evaluate the constitutionality of abortion restrictions. 

ISSUE

The most recent ruling on abortion restrictions came in June 2020, when the Supreme Court issued its’ opinion in the case of June Medical Services, LLC v. Russo (2020). In June Medical, the Court overturned the Fifth Circuit’s ruling that a Texas law that required abortion providers to have hospital admitting privileges did not place an undue burden on people seeking abortions, holding instead that the law was a violation of prior Supreme Court precedent. However, the divided Court failed to agree on a single standard for lower courts to apply to future abortion restrictions. The plurality argued that a balancing test, similar to the one advanced in the Court’s 2016 holding in Whole Woman’s Health v. Hellerstedt (2016), should be applied to these restrictions, with the benefits of the laws being weighed against the potential burdens. Contrastingly, the Chief Justice, in his concurring opinion, advanced a standard that provided greater discretion to state legislatures. These contradicting standards have ultimately led to a single question: what June Medical standard should courts apply to state-level abortion restrictions?

THE SPLIT

The Circuit Courts of Appeal have split over what standard discussed in the June Medical decision controls. In particular, the Eighth and Fifth Circuits have reached opposite conclusions, with the Eighth Circuit siding with the Chief Justice’s standard and the Fifth Circuit siding with the plurality’s standard.

The Eighth Circuit

Shortly following the June Medical decision, the Eighth Circuit applied the standard discussed in Chief Justice Robert’s concurrence to vacate a lower court injunction against multiple state level abortion restrictions. In the case of Hopkins v. Jegley (2020), the Eighth Circuit held that the Chief Justice’s opinion, being necessary for the Court to have reached its 5-4 decision that the Texas admitting privileges law was unconstitutional, was controlling and therefore carried precedential weight. According to the Eighth Circuit, the Chief Justice’s standard – that like cases should be treated alike, and that discretion should be granted to state legislatures in areas involving “medical uncertainty” – controlled in the Hopkinscase. Under this standard, the Eighth Circuit held that the preliminary injunction against the Arkansas abortion laws should be vacated, and thus remanded the case to the lower court for reconsideration under the Chief Justice’s proposed standard of review.

The Fifth Circuit

Recently, the Fifth Circuit reached the opposite conclusion when it chose to not apply the Chief Justice’s standard and subsequently overturned a Texas law that required individuals seeking an abortion in the second trimester to undergo an additional medical procedure prior to the abortion procedure itself. In the case of Whole Woman’s Health v. Paxton (2020), the Fifth Circuit held that it was the standard discussed in the plurality’s opinion – that the benefits of a law restricting abortion should be weighed against the potential burdens that the law may place on the access to abortion – that controlled; not the Chief Justice’s standard.According to the Fifth Circuit, this standard was first adopted by the Supreme Court in the Hellerstedt decision, and the standard was not overturned by the recent June Medical decision. As such, the Fifth Circuit ruled in favor of the abortion clinic and overturned the Texas law.

LOOKING FORWARD

The future of this issue remains uncertain. On May 17, 2021, the Supreme Court granted certiorari in the case of Dobbs v. Jackson Women’s Health Organization for the upcoming October term. The Dobbs case is poised to present the Court with the exact question discussed in this split; what standard from the June Medical decision should be applied to state-level abortion restrictions? Given the recent high-profile additions of Justices Brett Kavanaugh and Amy Coney Barrett to the Court, as well as the subsequent shift in ideology toward a conservative-leaning majority, the potential outcome of the Dobbs case is currently unclear. An oral argument date has yet to be set.

For further reading, see: Undue Burdens in Texas by Jennifer S. Hendricks and In Abortion Litigation, It’s the Facts that Matter by Caitlin E. Borgmann.

Knock-knock, “Open up it’s the Poli… Housekeeping!”

BACKGROUND

The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

There are some limited exceptions to the warrant requirement, like “exigent circumstances,” where a reasonable law enforcement officer would believe a warrantless search and seizure is necessary—for example to prevent physical harm, destruction of evidence, or a suspect’s escape. The Supreme Court, in Cady v. Dombrowski (1973), recognized a “community caretaking” exception to the Fourth Amendment warrant requirement, which acknowledges that police officers carry out “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” When established, the exception was designed only for warrantless searches of motor vehicles to aid those in distress, combat actual hazards, prevent potential hazards from materializing and provide services to preserve and protect public safety. United States v. Rodriguez-Morales (1st Cir. 1991). Since Cady, courts have expanded the “community caretaking” exception.

THE ISSUE

Does the “community caretaking” exception to the Fourth Amendment’s warrant requirement extend beyond the context of motor vehicles to the home?

THE SPLIT

The Third, Seventh, Ninth Circuits, and likely the Tenth Circuit have held that the “community caretaking” exception does not extend to the home. The First, Fifth, and Eighth Circuits have extended the “community caretaking” exception beyond the motor vehicle context, justifying, under certain circumstances, a warrantless entry into an individual’s home.

The Third, Seventh, and Ninth Circuits – Does Not Extend to the Home

The Ninth Circuit established its view on how far the exception established in Cady applies in United States v. Erickson(1993). In Erickson, a police officer investigating a suspected burglary, pulled back plastic from an open window in a basement, revealing numerous marijuana plants. The officer then proceeded to obtain a warrant and arrest the homeowner. The court held that even if the officer was performing a community caretaking function at the time, that alone cannot justify the warrantless search prior to obtaining the warrant. The court concluded “Cady clearly turned on the ‘constitutional difference’ between searching a house and searching an automobile.”

The Third Circuit in Ray v. Township of Warren (2010) similarly concluded that the “community caretaking” exception established in Cady “expressly distinguished automobile searches from searches of a home.” In Ray, police officers, fearing that a child in a home may be in danger, entered the home without a warrant. The court held that the “community caretaking” exception does not override the warrant requirement of the Fourth Amendment in the context of the home.

The Seventh Circuit, in Sutterfield v. City of Milwaukee (2014) also declined to extend the “community caretaking” exception to the home. Here, police officers forcibly entered the home of a potentially suicidal individual to effectuate an emergency detention for a mental health evaluation. Officers detained the homeowner, performed a protective sweep of the home, and seized a firearm that was inside a locked CD case. Guided by its earlier decision in United States v. Pichany (1982), the Seventh Circuit decided that the exception “extended only to automobiles temporarily in police custody.” The court, however, held that the entry and subsequent sweep were justified by the “exigent circumstances” exception. The search of the CD case was unlawful because the gun was not in plain view and the search was based on a hunch.

The Tenth Circuit is less clear, but appears to agree.  In  United States v. Bute (1994), which concerned a commercial building and garage, the Tenth Circuit concluded that the “community caretaking” exception to the Fourth Amendment warrant requirement is “applicable only in cases involving automobile searches.” Thus, the Tenth Circuit most likely would not have extended the exception to the home had one been the subject of the case.

Sixth Circuit holdings are mixed. The Sixth Circuit in United States v. Rohrig (1996) recognized that warrantless entry into the home may be permissible when police officers are acting as community caretakers to stop a significant noise nuisance. The question remained as to whether this is permissible under the “exigent circumstances” or “community caretaking” exception. However, in United States v. Williams (2003), the Sixth Circuit concluded that Rohrig did not extend the “community caretaking” exception into the home, stating “we doubt that community caretaking will generally justify warrantless entries into private homes.”

The First, Fifth, and Eighth CircuitsExtends to the Home

The Eighth Circuit in United States v. Quezada (2006) did not exactly conclude that the “community caretaking” exception extends to the home, but that “a police officer may enter a residence without a warrant as a community caretaker where the officer has a reasonable belief that an emergency exists requiring his or her attention.” This standard is more like a modified exigent circumstances test, which lowers the threshold for exigency when the officer is acting as a community caretaker.

The Sixth Circuit appears to agree with the Eighth. In United States v. Rohrig (1996), the Sixth Circuit recognized that warrantless entry into the home may be permissible when police officers are acting as community caretakers to stop a significant noise nuisance. The question remained as to whether this is permissible under the “exigent circumstances” or “community caretaking” exception. However, in United States v. Williams (2003), the Sixth Circuit concluded that Rohrigdid not extend the “community caretaking” exception into the home, stating “we doubt that community caretaking will generally justify warrantless entries into private homes.”

The Fifth Circuit in United States v. York (1990) extended the “community caretaking” exception to the home. Here, the guests of a home feared for their safety, requesting the assistance of deputies so they could collect their belongings and vacate. The deputies entered without a warrant, and later contacted the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) about firearms seen in plain view. The court applied a reasonable foreseeability standard in determining whether a search/seizure is lawful. The court concluded that the community caretaking function of the police here was reasonably foreseeable.

The First Circuit in Caniglia v. Strom (2020) similarly extended the “community caretaking” exception to the home, but instead applied a three-part test. Here, after a domestic dispute, police believed it was reasonable to seize the appellant homeowner’s firearms, fearing that he could be in danger should the guns remain in the home. The court held that the core purpose of the “community caretaking” exception should not be limited to the motor vehicle context, and under the right circumstances may be extended to the home. The court determined that for the “community caretaking” exception to be lawful the court must consider (1) if there is an objectively reasonable basis for believing the individual is suicidal or otherwise poses an imminent risk of harm to himself or others; (2) if there is an objectively reasonable basis for thinking that the individual may use firearms seized in the immediate future for harming himself or others; and (3) if the entry into the home is appropriate when “tailored to the seizure of firearms in furtherance of police officers’ community caretaking responsibilities.”

These approaches are to some degree inconsistent, applying different tests and examining different conditions to determine if warrantless entry into the home is justified under the “community caretaking” doctrine. What they do show, however, is that under the right circumstances, such entry may be justified.

LOOKING FORWARD

The U.S. Supreme Court granted certiorari in Caniglia v. Strom on November 20, 2020. Not only will this case provide clarity to state and federal law enforcement on the extent to which police may intrude into the home, but this case may also shine a light on how the new Court will decide individual liberty issues going forward. An evolution of the “community caretaking” exception may be viewed by some as a blank check to police to evade the warrant requirement in order to serve the community’s interest. Others may argue that the “community caretaking” exception is faithful to the Fourth Amendment because it gives “police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention, [which] should not be limited to the motor vehicle context.” While some cases find that the “community caretaking” exception is limited solely to the motor vehicle context, others have allowed warrantless entry in contexts that are neither homes nor cars. For further reading, see Stop Hammering Fourth Amendment Rights: Reshaping the Community Caretaking Exception with the Physical Intrusion Standard, 97 Marq. L. Rev. 123 (2013).

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.