How to Get Away with Murder: Get Convicted in the D.C. Circuit

BACKGROUND

It goes without saying that killing an officer or employee of the United States is a punishable offense, but is that murder punishable if committed outside American territory? 18 USC § 1114 makes it illegal to kill or attempt to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties. Federal courts have long avoided reading statutes as applicable on foreign soil, except when Congress clearly indicates as such, by using the canon of statutory interpretation known as the presumption against extraterritoriality. Some courts, however, have used a 1922 Supreme Court decision, United States v. Bowman, to justify applying § 1114 outside American borders.

ISSUE

Can 18 USC § 1114 criminalize killing or attempting to kill an officer or employee of the United States outside the territory of the United States?

THE SPLIT

The Second and Eleventh Circuits have applied 18 USC § 1114 extraterritorially, concluding that Congress would have intended it to do so. The D.C. Circuit declined to apply the statute extraterritorially, holding firm to the presumption against extraterritoriality.

Second and Eleventh Circuits

The Eleventh Circuit, in United States v. Benitez (1984), held that § 1114 has extraterritorial application. In Benitez, the defendant was convicted of conspiracy to murder DEA agents engaged in the performance of their official duties in Colombia, among other crimes. The court held that “assault and attempted murder of DEA agents is exactly the type of crime that Congress must have intended to apply extraterritorially.” The Eleventh Circuit upheld the district court’s judgment of conspiracy to murder the agents.

The Second Circuit, in United States v. Al Kassar (2011), also held that § 1114 has extraterritorial application. In Al Kassar, three defendants were convicted of conspiring to kill U.S officers in Spain and Romania. The Second Circuit read Bowman to mean “the presumption that ordinary acts of Congress do not apply extraterritorially does not apply to criminal statutes.” § 1114 has no explicit provision for application on foreign soil, therefore, according to Bowman, congressional intent must “be inferred from the nature of the offense.” The court held “the nature of the offense – protecting U.S. personnel from harm when acting in their official capacity – implies an intent that it applies outside of the United States.” The Second Circuit explained that this is because a significant number of those employees perform their duties on foreign soil. The court in Al Kassar affirmed the convictions and sentences.

The Second Circuit affirmed the application of territoriality to § 1114 in United States v. Siddiqui (2012). In Siddiqui, the defendant was convicted of attempted murder of U.S. nationals, officers, and employees, among other crimes. The court held, “we see no basis for expecting Congress to have intended to limit these protections to U.S. personnel acting within the United States only.” The nature of the offense, the court concluded, implies a congressional intent outside U.S. territory. The court in Siddiqui affirmed the convictions and sentence.

D.C. Circuit

The D.C. Circuit, in United States v. Sota (2020), held that because § 1114 does not speak to extraterritorial application, one way or the other, the presumption against territoriality remains firm, and therefore does not apply beyond U.S. territory. In Sota, two defendants were convicted of killing an American law enforcement officer in Mexico, among other crimes. The court determined that the presumption against territoriality remained unrebutted because Congress had not “affirmatively and unmistakably instructed that the statute will” apply abroad. Congress passed § 1114 and nearby § 1116 in a single statute, the Antiterrorism and Effective Death Penalty Act of 1996. § 1116 criminalizes killing a U.S. officer or employee who is otherwise “entitled pursuant to international law to special protection against attack.” The court determined that §§ 1114 and 1116 must be read in pari materia, and therefore, “Congress’s explicit provision for extraterritorial jurisdiction in one provision (§ 1116) militates against inferring any such application for a closely related and nearby provision with no such signal (§ 1114).

The D.C. Circuit also concluded that the Second and Eleventh Circuits are misinterpreting Bowman because Bowman should be not be read so broad such that all criminal statutes can be applied extraterritorially. Instead, the D.C. Circuit asserted that Bowman stands for the notion that the presumption against extraterritoriality is rebutted if the criminal statutes in question would be greatly curtailed by scope and usefulness if limited to a strict territorial jurisdiction. The court in Sota vacated the defendants’ convictions under § 1114.

LOOKING FORWARD

As of now, it does appear that an individual, especially a foreign national, may be able to avoid punishment for murdering an officer or employee of the United States on foreign soil, if convicted under the jurisdiction of the District of Columbia Circuit. This issue may only get resolved if, unfortunately, someone attempts to murder or does murder an officer or employee of the United States outside of American territory and the Supreme Court takes up the case.

Should the Supreme Court decide on this matter, we may find an interesting and surprising split between Justices. One would typically expect Republican-appointed Justices to side in favor of law and order and interpret § 1114 to apply extraterritorially. However, an intentionalist interpretation, more favored by Democratic-appointed Justices, would lean in favor of expanding the scope of the law beyond American borders, and a strict textualist interpretation would refrain from reading intent and instead focus on the words of the statute which have no reference to international jurisdiction. Nonetheless, this issue is unlikely to reach the Supreme Court any time soon and will probably continue to yield a growing split among the circuits.  

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).

The Prison Mailbox Rule: How to Send Mail in Jail

BACKGROUND

Federal Rule of Appellate Procedure 4 outlines the time restrictions for filing a notice of appeal. However, the original rule was not very clear on how prisoners would file if they were already behind bars. Prisoners face unique challenges due to their confinement, as they cannot travel to the courthouse themselves to file paperwork. Further, they do not have access to the United States Postal Service to mail and track progress, so they must rely on the prison mail system instead. Specifically, pro se prisoners (representing themselves) are at a disadvantage when exercising their right to file a notice of appeal.

The Supreme Court grappled with this question in Houston v. Lack (1988), and answered by formulating the prison mailbox rule, stating that filings by pro se prisoners are complete when the prisoner delivers the notice to prison authorities for mailing. After the Houston case, Rule 4 was amended in 1993 to better incorporate the prison mailbox rule. Since then, different circuits have interpreted the prison mailbox rule and come to some starkly different conclusions.

THE ISSUE

In formulating the prison mailbox rule, the Houston Court specified the struggles of “pro se prisoner[s]” in filing paperwork. So, does this rule, where a prisoner’s notice of appeal is filed when he hands it to prison officials to be mailed, apply to all prisoners, including those represented by counsel (broad interpretation), or only to pro se prisoners (narrow interpretation)?

THE SPLIT

In February 2021, Cretacci v. Call came before the U.S. Court of Appeals for the Sixth Circuit, challenging the scope of the prison mailbox rule. This case called for an interpretation of the rule posited by Houston. The Sixth Circuit joined the majority of its sister circuits (the Fifth, Eighth, Tenth, and Eleventh Circuits) by interpreting the prison mailbox rule narrowly and holding that it doesn’t apply to inmates already represented by counsel but instead only applies to pro se prisoners. In contrast, the Fourth and Seventh Circuits have applied the rule broadly to include inmates that are represented by counsel.

The Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits: Narrow Interpretation

In Cretacci v. Call (2021), Blake Cretacci was held as a pretrial detainee in the Coffee County, Tennessee prison system in 2016. Cretacci alleged that during his time in the system, he was the victim of numerous constitutional violations. Cretacci secured an attorney to file a complaint, but the attorney did not realize that they could not practice until the night before the statute of limitations lapsed. Therefore, the attorney could not represent Cretacci in the applicable jurisdiction, so Cretacci gave the prison authorities the paperwork that same evening pro se, following the prison mailbox rule, so that it could meet the statute of limitations. The court later received the filing, and the attorney was able to get admitted pro hac vice so that he could represent Cretacci during the proceeding. 

The court held that Cretacci’s claims of excessive force and failure to distribute supplies were time-barred since the statute of limitations had lapsed. Further, Cretacci could not use the prison mailbox rule since he did have representation at the time. The court went on to say that the pro se requirement of the prison mailbox rule applied in all civil cases. The Sixth Circuit reasoned that Houston should only apply to pro se prisoners due to their unique challenges in filing legal documents. The court explained that “if a prisoner does not need to use the prison mail system, and instead relies on counsel to file a pleading on his or her behalf, the prison is no longer responsible for any delays and the rationale of the prison mailbox rule does not apply.” The court ended its analysis by distinguishing the case at bar from the opposing circuits by stating that Appellate Rule 4(c) did not govern.  

The Eighth Circuit was one of the first circuits to address the prison mailbox rule in Burgs v. Johnson County (1996). In Burgs, an inmate filed a notice of appeal pro se while simultaneously requesting an appointment of counsel. First, the court appointed the same counsel that the inmate had during the lower court proceedings. Next, the court held that since the inmate had counsel at an earlier point in the case, the prison mailbox rule did not apply since the inmate could have reasonably relied on the attorney to file a timely notice of appeal. Specifically, the court said that the prison mailbox rule is limited to pro se prisoners only, since “the moment at which pro se prisoners necessarily lose control over and contact with their notices of appeal is at delivery to prison authorities, not receipt by the clerk.”

In 2002, the Fifth Circuit engaged with the prisoner mailbox rule in Cousin v. Lensing (2002). Cousin was a prisoner who attempted to file a notice of appeal after the time required, but the court refused to apply the prison mailbox rule to these filings since the prisoner did have an attorney when they filed the notice. The court reasoned that the mailbox rule only allows leniency in time for pro se prisoners since they face unique difficulties in filing pleadings. The court continued, saying that this rationale does not extend to represented prisoners since they do not need this leniency and do not face the same challenges.

The same year, the Tenth Circuit also encountered the prison mailbox rule in United States v. Rodriguez-Aguirre (2002). In this case, a prison argued that his counsel was ineffective and that this might impact the timing of his filing of appeals under the prison mailbox rule. However, the Tenth Circuit held that there was not enough proof that any ineffective assistance of counsel caused the failure to timely file. Therefore, the prison mailbox rule does not apply to represented prisoners. The court reasoned that the Houston rule served a narrow purpose: to acknowledge the delays caused by the prison mail system.

The Eleventh Circuit, through its per curiam decision in United States v. Camilo (2017), agreed with its sister circuits that the prison mailbox rule should be construed narrowly. In Camilo, a prisoner argued that the sentencing documents he had filed pro se should be subject to the prison mailbox rule even though he had representation at other stages of litigation.  The court stressed that the prison mailbox rule was designed to help prisoners who were strictly limited to communicating through the prison staff and postal service. Thus, represented prisoners have other means of communication.

The Fourth and Seventh Circuits: Broad Interpretation

The Fourth Circuit first encountered the prison mailbox rule in United States v. Moore (1994). In this case, a prisoner was represented by the federal public defender’s office and filed a notice of appeal. The inmate gave the paperwork to prison operators, but it arrived at the district court two days late, so the court dismissed the claim. The Fourth Circuit applied the prison mailbox rule to this situation. The court stated that the prison mailbox rule could not discriminate based on the representation status of prisoners.

The court noted that the prison mailbox rule was designed to correct disadvantages that prisoners have in filing documents due to restrictions on their freedom and did not offend any notion of fairness. The court went on to say that Houston should not be interpreted so narrowly as to exclude represented prisoners since there was “no good reason” to do so. The court noted that even though represented prisoners can rely on their counsel to file documents and act on their behalf, the court did recognize that prisoners might still face restrictions and limitations on how frequently they can see their attorneys.

The Seventh Circuit most recently answered the prison mailbox rule in 2004, in United States v. Craig (2004). Here, a prisoner stated that he had changed his mind while in jail and decided last minute to file an appeal. He then filed the notice pro se under the prison mailbox rule, as he did not think that he had counsel to represent him. The government challenged the prison’s change of heart as time-barred and further argued that the prison mailbox rule did not apply to represented prisoners anyway.

Although the court dismissed this specific case, they also explicitly disagreed with the government’s argument about the prison mailbox rule. The court reasoned that although Houston initially defined the rule, it had been codified through amendments to Federal Rule of Appellate Procedure 4. The court turned to Rule 4(c)(1), observing that it “requires a prisoner to use a legal-mail system if the prison has one.” So, this rule governs, and the court couldn’t “pencil ‘unrepresented’ or any extra word into the text of Rule 4(c), which as written is neither incoherent nor absurd.”

LOOKING FORWARD

While Cretacci represents the most recent encounter with the prison mailbox rule, the issue is relatively common and reveals a lack of clarity in the law. This rule affects many defendants and the ease with which these defendants can file appeals, so it is important from both fairness and procedural standpoint that the rules are clear and equally applied. Therefore, it seems likely that the prison mailbox rule will continue to be challenged in the courts. It is unclear at this point whether Cretacci will appeal the Sixth Circuit’s decision, but the Supreme Court may eventually have to clarify the law, whether it be through case law or another amendment of the Federal Rules of Appellate Procedure to resolve this circuit split.

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).

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. 

Rules of Interrogation: Title IX and the Opportunity to Cross-Examine Complainants

BACKGROUND

Title IX, passed as part of the Educational Amendments of 1972, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Three Supreme Court decisions during the 1990s interpreted Title IX to require schools to respond adequately and appropriately to incidents of sexual harassment and violence perpetrated against students.

In 2011, the Department of Education’s Office of Civil Rights (“OCR”) issued what is referred to as a “Dear Colleague” letter, which provided guidance to schools and reminded them of their obligation to address incidents of sexual assault as civil rights matters under Title IX. In this letter, the OCR under the Obama administration made recommendations regarding procedures schools should follow when addressing a Title IX complaint. One procedural recommendation by the OCR was to discourage allowing parties to personally question and cross-examine each other during a hearing on alleged sexual violence. The OCR reasoned that this method may be “traumatic or intimidating” and would potentially foster a hostile environment. Additionally, schools are not required to allow cross-examination of witnesses.

Most recently, the Department of Education under Betsy DeVos and the Trump administration has announced its intention to issue sweeping changes to the rules governing campus sexual assault. One of the major rules proposed through the early 2019 notice-and-comment procedure was a requirement that schools allow cross-examination of those alleging sexual harassment or assault.

THE ISSUE

In sexual misconduct cases, are schools required to provide a respondent with the opportunity for live cross-examination of the complainant and his or her representatives?

THE SPLIT

In 2018, the Sixth Circuit heard the case Doe v. Baum (2018). John Doe, the plaintiff and initial respondent in a sexual misconduct investigation at the University of Michigan, filed suit after the case made its way through the university’s appeals process. When the investigation was resolved in the complainant’s favor, Mr. Doe voluntarily withdrew from the university but later claimed that the university’s disciplinary procedures were in violation of both the Due Process Clause and Title IX. His argument was that, because the university’s decision turned on a finding of credibility, the school should have been required to provide him with the opportunity to cross-examine the complainant and witnesses. The Sixth Circuit reversed the district court’s decision and held that the University of Michigan did violate the student’s right to due process by failing to afford him the right to cross-examine the complainant and witnesses.

Relying on the decision in Baum, a respondent in a sexual assault investigation at the University of Massachusetts-Amherst filed suit after the university held a hearing and eventually expelled him. The respondent, Mr. Haidak, argued that his rights under Title IX and the Due Process Clause were violated because the university did not provide him with the opportunity to interrogate the complainant. In a split from the ruling in the Sixth Circuit, the First Circuit held in Haidak v. University of Massachusetts-Amherst (2018) that it is not a categorical requirement that schools must provide respondents with the opportunity to cross-examine the complainant, either directly or through a representative. The court explained that a school’s decision to examine the witnesses and parties by using a neutral factfinder would not be so fundamentally flawed in its procedure as to deprive the respondent of their right to due process. The Court reasoned that requiring the right to the kind of cross-examination demanded by Mr. Haidak would cause the disciplinary proceedings to essentially mirror a common law trial, which the First Circuit deemed unnecessary.

LOOKING FORWARD

Title IX administrators anticipate publication of the finalized regulations any day now. The proposed regulations relied heavily on the Baum decision and procedural requirements as outlined by the Sixth Circuit, conflicting with the First Circuit in Haidak. It remains to be seen what procedures will be required by the final Title IX regulations, but it is unlikely we will see any shift away from the rationale and procedures as outlined in Baum.

Educational institutions in the First Circuit will be forced to take into account both the Haidak decision and the new regulations when updating their Title IX policies. Additionally, many universities utilize the method of fact-finding supported by Haidak, which allows for a neutral party to interview the complainant and respondent. The split between the First and Sixth Circuits coupled with the introduction of the new Title IX regulations by the Department of Education will force different institutions to follow different sets of rules depending on the jurisdiction in which they are located. Various Title IX cases are awaiting trial or adjudication across the country, and experts are eager to find out which of the procedural frameworks appear to be the standard. With these rulings, it is becoming increasingly more likely that the Supreme Court will be forced to consider the Title IX procedures.

For further reading, see: First Circuit Splits from Sixth Circuit and Education Department on Title IX (2019), OCR Is About to Rock Our Worlds (2020) by Brett A. Sokolow, and 5 College Title IX Lawsuits to Watch (2019) by Jeremy Bauer-Wolf.

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.

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.

Do the due process restrictions on shackling criminal defendants apply equally to jury and non-jury proceedings?

Background

Due process under the Fifth and Fourteenth Amendments restricts the use of physical restraints on criminal defendants during a criminal trial. Because shackles are inherently prejudicial, the Supreme Court instructed in Deck v. Morrison (2005) that defendants should only be shackled during trial as a last resort. Shackles interfere with a jury’s ability to make accurate determinations about both guilt and sentencing because they imply to a jury that the defendant is dangerous, and may cause a jury to infer negative attributes about the defendant’s character.

The Court established a rule in Deck that physical restraints that are visible to a jury may only be used after a trial court determination that they are justified by an essential state interest, based on particular concerns in a specific defendant’s trial. For example, a trial court may find that a particular defendant poses such severe security risks that shackling is necessary to protect the occupants of the courtroom. Judges may not impose blanket rules about the use of restraints, and the inquiry must be specific to concerns about the particular defendant. The Deck rule applies to both guilt-determination proceedings and to sentencing proceedings.

The Court builds the rule in Deck v. Morrison from three essential principles:

  • The presumption of a defendant’s innocence until proven guilty. Visible restraints erode the fairness of the criminal proceeding by implying that the defendant is dangerous and tipping the scale in favor of guilt.
  • The defendant’s constitutional right to counsel. Shackles interfere with a defendant’s ability to move freely to communicate with her attorney. Defendants physically struggle to write when they are restricted by shackles, which limits their ability to effectively communicate with counsel during criminal proceedings.
  • The dignity and decorum of the courtroom is necessary to support confidence that the legal system pursues justice as it handles the potential deprivation of liberty. Courtroom dignity requires that defendants are treated respectfully.

The Issue

The Court only addressed jury proceedings in Deck. The Deck holding left lower courts to determine whether a defendant’s due process rights require the same justification for shackles in proceedings without juries.

The Split

The Second Circuit does not require a specific evaluation of the need for restraints in non-jury proceedings. Because juror prejudice is the primary concern for limiting the use of restraints in the courtroom, the Second Circuit examined in United States v. Zuber (1997) whether a concern of prejudice is present when judges rather than juries do the sentencing.

We traditionally assume that judges, unlike juries, are not prejudiced by impermissible factors, …, and we make no exception here. We presume that where, as here, the court defers without further inquiry to the recommendation of the Marshals Service that a defendant be restrained at sentencing, the court will not permit the presence of the restraints to affect its sentencing decision.

Similarly, the Eleventh Circuit held in United States v. Lafond (2015) that the Deck rule against restraints only limits the use of restraints at proceedings with juries.

The Ninth Circuit arrived at a different conclusion in United States v. Sanchez-Gomez (2017). The court extended the Deck rule to non-jury proceedings and clarified that it applies in pretrial, trial, and sentencing proceedings. The Ninth Circuit now requires that, before shackling a criminal defendant in both jury and non-jury proceedings, courts must decide if the security concerns with the particular defendant outweigh the infringement on the defendant’s due process right.

Continuing with the rationale for the Deck rule, the court applied the principle of presuming a defendant’s innocence until proven guilty.

The principle [that defendants are innocent until proven guilty] isn’t limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.

Using the third Deck justification, the Ninth Circuit reasoned that dignity and decorum require consistent application of the rule:

Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.

Looking Forward

The Supreme Court recently granted a writ of certiorari for Sanchez-Gomez, but declined to take up the issue of whether due process prohibits the use of restraints in non-jury proceedings. The circuit split and conflicting rationales present a need for clarity on this important constitutional issue.