Trombetta and Youngblood in the Era of DNA

Zach Kurzhals, Associate Member, University of Cincinnati Law Review

Theoretically, criminal defendants are provided numerous advantages.[1] However, the risk-reward calculation has been skewed over our country’s history, making plea deals pervasive.[2] This has resulted in an increased number of erroneous convictions.[3] States have responded to this crisis and all 50 states have passed post-conviction DNA statutes.[4] However, many of these statutes have significant shortcomings.[5] These laws often fail to include adequate safeguards ensuring the preservation of DNA evidence.[6] Consequently, many prisoners petition for post-conviction DNA testing, have their petition granted, and are then informed that the evidence to be tested no longer exists.[7] The technology for DNA testing has advanced considerably in the last 30 years[8] and should re-shape the bad faith standard when applied to lost or destroyed DNA evidence.[9] States must recognize the exculpatory value of DNA evidence and provide a lower bad faith requirement when DNA evidence is missing. Such recognition would ensure prosecutors and police agencies create policies that preserve DNA evidence, thereby helping assuage the epidemic of wrongful incarceration.

Current Standards Regarding Post-Conviction Evidence

Three Supreme Court cases constitutionally guarantee a criminal defendant’s access to evidence.[10]  A criminal defendant is entitled to all exculpatory or impeaching information that is material to the guilt, innocence, or punishment of the defendant.[11] However, there is no federal post-conviction right to discovery.[12] In contrast, state post-conviction DNA statutes are specifically intended to provide a statutory entitlement to access of DNA testing. A majority of state statutes require DNA evidence be preserved.[13] However, many statutes mandating preservation of DNA evidence do not provide adequate safeguards for the preservation of DNA evidence.[14] This has resulted in a substantial destruction or loss of DNA evidence.[15] Additionally, it is unlikely to find an instance of state entities or agents facing repercussions for loss or destruction of DNA evidence in post-conviction proceedings. The only clear avenue of recourse for the prisoner is to claim a Due Process Clause (“DPC”) violation. A DPC violation claim based on spoliation of evidence operates under a different standard than that of Brady material. This is known as the “bad faith”[16] standard and it is extremely favorable to the state.[17]

The “Bad Faith” Standard

In Arizona v. Youngblood, the Supreme Court determined that the state does not have a duty to preserve potential exculpatory evidence.[18] Instead, the State’s duty to preserve evidence is limited to evidence that has apparent exculpatory value, and has no reasonably available alternative, and is expected to play a significant role in the suspect’s defense.[19] Additionally, the Court found a lack of intent, on behalf of the State, to support finding no DPC violation.[20] The Supreme Court explicitly stated that a finding of “bad faith” on the part of the State is required to find a DPC violation resulting from missing or destroyed evidence.[21] The Youngblood opinion distinguished situations involving Brady material and destroyed evidence as a difference between known exculpatory evidence and potential exculpatory evidence.[22] The Court stated that a bad faith standard would limit the burden placed on the State in preserving evidence by excluding evidence about which “no more can be said than it could have been subject to tests.”[23]

Antiquated Bad Faith and DNA

Every state has a post-conviction right to DNA testing.[24] Many of these statutes require the preservation of DNA evidence.[25] However, far too often a prisoner attempts to avail themselves of this new statutory right only to find the evidence that could prove their innocence missing.[26] Occasionally, acts of God or some tragedy may be the cause. What is perturbing is there is often an appalling absence of accountability regarding missing DNA evidence.[27] Often, the only available alternative for the prisoner is a DPC claim governed by the bad faith standard.

The bad faith standard is a substantial burden upon the convicted and is inappropriate for DNA evidence.[28] Anything short of a government official admitting to malicious destruction of evidence is likely to fail.[29] Overall, the bad faith standard is essentially insurmountable and is applied inconsistently across states.[30] Some state courts have begun to deviate from the standard for specific types of evidence.[31] The importance of DNA evidence is difficult to refute. DNA evidence has advanced considerably since its inception.[32] Improvements in testing DNA evidence should not be denigrated by the judiciary under an unattainable bad faith standard. DNA evidence has a unique and extremely rare quality when compared to other types of evidence: it can provide near certainty of guilt or innocence. Therefore, if a movement away from bad faith and its high burden on defendants can be justified in some areas of evidence, certainly DNA should not be the exception.

The burden on the government to preserve DNA evidence is not so strenuous that it requires the protection of the “bad faith” standard.[33] In cases where DNA evidence can be utilized by the prosecution, the State recognizes the inherent value of this evidence and thus insures its preservation. Current preservation of DNA evidence, for post-conviction relief, is at best substandard.[34] As technology advances, even poorly-stored DNA evidence is able to yield reliable results.[35] Storing DNA evidence is not a great burden on government, a single hair or a microscopic slide does not require much space. The governmental burden appears minimal when considering the value of affording the innocent the opportunity to redress manifest injustices.

Youngblood was decided long before DNA evidence was fully understood and used by law enforcement.[36] The State’s response to a DPC claim for lost DNA evidence since Youngblood has been almost universally that the loss of evidence was a result of neglect or mistake. This response has practically guaranteed a finding of no DPC violation.[37] Almost thirty years after Youngblood, DNA testing is by far the most superior investigation tool available. [38]

Today, DNA testing can identify or exclude individuals with almost 100% certainty[39] and is used pervasively within law enforcement communities.[40] It cannot be argued that police officers and prosecutors do not have an intimate understanding of DNA’s inherent exculpatory value. Therefore, considering statutes regarding DNA preservation, a police agency or a prosecutor should no longer be able to plead mere neglect, inattentiveness, or mistake regarding lost or destroyed DNA evidence.

The exculpatory value of DNA evidence is not disputed. The justice system should re-evaluate the standard applied to DNA evidence and account for our society’s augmented understanding, awareness, and use of DNA evidence. Currently, the standard requires a prisoner to prove the exculpatory value of evidence that they can no longer test. It would be extremely difficult for any individual to prove the exculpatory nature of non-existent evidence. To think an incarcerated individual would have the resources to meet such a standard is outlandish. Unsurprisingly, DNA testing has been central to the innocence movement taking place in the United States. A total of 351 DNA exonerations have taken place within the United States.[41] The DNA testing from those 351 exonerations led to the proper identification of 150 perpetrators.[42] Of those 351 exonerations, thirty-eight had pled guilty and the DNA evidence was not tested until the innocent person in prison petitioned for DNA testing. It can be posited that the innocence movement has proven the element of exculpatory value for all DNA evidence.


The illusion of the bad faith standard has begun to deteriorate as more states choose to deviate from it.[43] Justice Blackmun, in his dissent in Youngblood, expressed his concern that this test would be almost impossible to overcome.[44] The knowledge and hindsight of the last thirty years have confirmed Justice Blackmun’s apprehensions. Continued vulnerability of DNA evidence is discordant with the traditional and historical notions of fairness underpinning the criminal justice system.  DNA testing is not perfect. There is a modern effort for greater understanding of the subjective nature of interpreting DNA.[45] However, this can only lead to one logical outcome: even more accurate DNA assessments. As Justice Blackmun stated, “[t]he importance of [this] type of evidence is indisputable, and requiring police to recognize [its] importance is not unreasonable.”[46] With each year that passes and with each new technological innovation, both the importance of DNA and the need to preserve DNA evidence become more pronounced.

[1] U.S. Const. amend. IV; U.S. Const. amend. V; U.S. Const. amend. VI; U.S. Const. amend. VIII; U.S. Const. amend. XIV.

[2] Patricia Lee Refo, Opening Statement: The Vanishing Trial, 30 No. 2, Winter 2004 ABA Journal of Litigation; Jed S. Rakoff, Why Innocent People Plead Guilty, New York Review of Books, Nov. 20, 2014.

[3] Less than 3% of cases go to trial. Patricia Lee Refo, Opening Statement: The Vanishing Trial, 30 No. 2, Winter 2004 ABA Journal of Litigation. There was an average of three exonerations a week in America in 2016. Nat’l Registry of Exonerations, Exonerations in 2016 (March 7, 2017). A conservative estimate of erroneous convictions of one percent yields approximately 20,000 innocent persons in prison. INNOCENCE PRJOECT, (last visited Oct. 27, 2017).

[4] INNOCENCE PRJOECT, (last visited Oct. 27, 2017); See also Cal. Penal Code § 1417.9 (West 2017).

[5] Id. (listing five shortcomings such as not allowing those that plead guilty access to DNA testing).

[6] Id. (“Many laws fail to include adequate safeguards for preservation of DNA evidence.”).

[7] INNOCENCE PROJECT, (last visited Oct. 27, 2017). Additionally, The Ohio Innocence Project deals with this fairly often. Kyle Swenson, A Tiny Piece of Evidence Could Be the Key to Setting An Innocent Cleveland Man Free, Why Can’t Anyone at the Justice Center Find It?, Cleveland Scene, June 14, 2017.

[8] John M Butler, The Future of Forensic DNA Analysis, 370 Phil.Transactions Royal Soc’y Biological Sci. (2015, Aug. 5),

[9] The duty placed on police agencies is limited to evidence expected to play a significant role in the suspect’s defense. California v. Trombetta, 467 U.S. 479 (1984). The convicted must prove the exculpatory nature of destroyed or lost evidence for a finding of a due process violation. Arizona v. Youngblood, 488 U.S. 51 (1988).

[10] Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976) holding modified by United States v. Bagley, 473 U.S. 667 (1985); United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).

[11] Brady, 373 U.S. 83 (This case led to the coining of the phrase “Brady material.”).

[12] 28 U.S.C. § 2254 Rule 6(a) (West 2010); Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner . . . is not entitled to discovery as a matter of ordinary course.”).

[13] The following is not a complete list and could include at least 25 more states: Alaska; Arizona; Arkansas; California; Colorado; Connecticut; Florida; Georgia; Hawaii.

[14] INNOCENCE PROJECT, (last visited Oct. 27, 2017).

[15] Id. (stating that 29% of their cases between 2004 and 2015 were closed because of lost or destroyed evidence).

[16] Arizona v. Youngblood, 488 U.S. 51 (1988) (Larry Youngblood, convicted of child molestation, challenged his conviction based on the state’s failure to preserve evidence containing DNA. The Supreme Court ruled that Youngblood had to prove the DNA was exculpatory, and the police knew this before destroying or ruining the evidence. The court found Youngblood did not meet this burden. Larry Youngblood was ultimately exonerated 12 years later through advanced DNA testing.).

[17] See Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992) (stating petitioner must prove official animus or a conscious effort to suppress exculpatory evidence); See also United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (finding gross negligence insufficient for due process violation).

[18] California v. Trombetta, 467 U.S. 479 (1984)

[19] Id. at 488.

[20] Id. (“[A]uthorities in this case did not destroy respondents’ breath samples in a calculated effort to circumvent the disclosure requirements . . .  the officers here were acting ‘in good faith and in accord with their normal practice.’”).

[21] Youngblood, 488 U.S. 51 (1988).

[22] Id.

[23] Id.

[24] INNOCENCE PROJECT, (last visited Oct. 27, 2017).

[25] E.g., OHIO REV. CODE ANN. § 2933.82 (West 2010).

[26] INNOCENCE PROJECT, (last visited Oct. 27, 2017) (stating 29% of Innocence Project cases were closed due to lost or destroyed evidence).

[27]Anthony Johnson, a client of The Ohio Innocence Project (“OIP”), was granted the right to have DNA evidence tested. At the evidentiary hearing a police witness made clear that the evidence should be in their evidence room but no one could find it. Kyle Swenson, A Tiny Piece of Evidence Could Be the Key to Setting An Innocent Cleveland Man Free, Why Can’t Anyone at the Justice Center Find It?, Cleveland Scene, June 14, 2017.

[28] State v. Hawkinson, 829 N.W.2d 367 (Minn. 2013) (finding preservation request, before destruction of evidence, insufficient to show bad faith); but see City of Columbus v. Forest, 522 N.E.2d 52 (Ohio Ct. App. 1987) (finding destruction of evidence subsequent to a preservation request shifts the burden to the state).

[29]Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir. 1992) (finding petitioner must prove official animus or a conscious effort to suppress exculpatory evidence); See also United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (finding gross negligence insufficient for due process violation).

[30] Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009); Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. Univ. L. Rev. 2008, 241, 247 (2008).

[31] State v. Morales, 657 A.2d 585, 594 (Conn. 1995); Commonwealth v. Henderson, 582 N.E.2d 496 (Mass. 1991); State v. Matafeo, 787 P.2d 671 (Haw. 1990).

[32] Jennifer M. Romeika & Fei Yan, Recent Advances in Forensic DNA Analysis, Journal of Forensic Research 2013, S12, available at (last visited Oct. 28, 2017).

[33] Youngblood, 488 U.S. 51, 58 (1988) (stating part of the rationale for the bad faith standard is limiting the burden on police agencies in preserving evidence).

[34] INNOCENCE PROJECT, (last visited Oct. 27, 2017) (stating 29% of Innocence Project cases were closed due to lost or destroyed evidence).

[35] Larry Youngblood, the defendant in Arizona v. Youngblood, was exonerated by DNA evidence 17 years after the crimes occurrence in 2000. Nat’l Registry of Exonerations, Larry Youngblood, available at (last visited Oct/ 28, 2017).

[36] People v. Castro, 545 N.Y.S.2d 985 (Sup. Ct. 1989) (finding DNA evidence inadmissible because not proven reliable) overruled by People v. Wesley, 83 N.Y.2d 417, 633 N.E.2d 451 (N.Y. 1994); President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, at 25-26, September 2016.

[37] Elizabeth A. Bawden, Here Today, Gone Tomorrow—Three Common Mistakes Courts Make When Police Lose or Destroy Evidence with Apparent Exculpatory Value, 48 CLEV. ST. L. REV. 335, 350 (2000).

[38] John M Butler, The Future of Forensic DNA Analysis, 370 Phil.Transactions Royal Soc’y Biological Sci. (2015, Aug. 5),; (2015) CODIS – NDIS Statistics, (2017), (last visited Oct. 27, 2017) (stating the National DNA Index (NDIS) contains over 13,041,408 offender profiles, 2,860,423 arrestee profiles, and 804,902 forensic profiles as of September 2017).

[39] INNOCENCE PROJECT, (last visited Oct. 27, 2017) (In more than 25% of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted.”).

[40] CODIS – NDIS Statistics, (2017), (last visited Oct 27, 2017) (stating CODIS has produced over 392,684 hits assisting in more than 377,507 investigations); INNOCENCE PROJECT, (last visited Oct. 27, 2017) (“Since 1989, there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused.”).

[41] Id.

[42] Id.

[43] Morales, 657 A.2d 585, 594; Henderson, 582 N.E.2d 496; Matafeo, 787 P.2d 671; State v. Battease, 2006-Ohio-6617 (Ohio Ct. App. 2006) (“[W]here the defendant moves to have the evidence preserved and the state destroys the evidence, the burden shifts to the state to demonstrate its inculpatory value.”); City of Columbus v. Forest, 522 N.E.2d 52 (Ohio Ct. App. 1987) (reading an additional requirement into Trombetta, one imposing a constitutional duty on the State to respond to defense requests for preservation of evidence).

[44] Youngblood, 488 U.S. 51, 69 (1988) (6-3) (Blackmun, J. dissenting).

[45] President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, at 75-82, September 2016.

[46] Youngblood, 488 U.S. 51, 70 (1988) (6-3) (Blackmun, J. dissenting).


The “White” Elephant in the Room: How to Make State Judicial Elections Better


Patrick Reagan, Associate Member, University of Cincinnati Law Review

When people think of state judicial elections, they often think of the advertisements. Some of the “greatest hits” in this motley collection include hokey banjo tunes, This has in part led to state judicial elections being criticized for becoming sideshows that appeal to people’s worst intentions. In Republican Party of Minnesota v. White, the Supreme Court allowed judicial candidates to espouse their beliefs on a host of political issues—thus politicizing and polarizing judicial elections and allowing the possibility of bad candidates appealing to outside groups to influence an election. Overturning White and reaffirming the need for political neutrality in judicial elections can make these elections cleaner, better, and fairer.

  1. Why is this a problem?

The vast majority of judges in the United States are elected, either through a retention election after an initial appointment or a nonpartisan general election.[4] In fact, the United States is the only country in the world that elects its judges.[5] In contrast, French judges are appointed after attending l’Ecole Nationale de la Magistrature, an elite training school in Bordeaux from which fewer than 5% of students make it to graduation because of its rigorous teaching methods

As previously mentioned, there is no uniform system for states to select and retain judges. Eight states hold partisan elections for trial court judge selections.[7] Twenty states (including Ohio) have nonpartisan elections.[8] Seven states have uncontested retention elections, and four states use different types of elections (partisan, nonpartisan, or retention) depending upon the county.[9]

This non-uniform system presents a unique opening for outside groups to influence judicial elections because of their access to experts who understand the system as well as the law those judges are applying. The U.S. Chamber of Commerce has operated the Institute for Legal Reform (ILR) since the early 2000s. This year alone, the ILR has received more than $10.7 million from the U.S. Chamber of Commerce for lobbying activities, and [10] The ILR is not the only the only interest group influencing judicial elections. The Brennan Center has compiled a list of outside groups influencing state judicial elections.[11]

  1. Republican Party of Minnesota v. White

Minnesota’s Code of Judicial Conduct contained an “announcement clause” that prevented judicial candidates from announcing their views on disputed legal or political issues.[12] In 1998, Gregory Wersal ran for Minnesota Supreme Court and sought an advisory opinion from the Minnesota Lawyers Professional Responsibility Board (MLPRB) addressing whether they sought to enforce the announcement clause.[13] The Board indicated it had doubts about the provision but could not answer the question because he did not include specific pieces of literature or campaign materials with his request.[14] Wersal then sued the Board in federal court, alleging the provision prevented him from exercising his First Amendment rights during the campaign.[15]

After granting cert, the Supreme Court considered “whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.”[16] The Court held “[t]he Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.”[17]

Justice Scalia recited two compelling interests the respondents identified in attempting to survive strict scrutiny: (1) preserving the impartiality of the judiciary; and (2) preserving the appearance of impartiality The Court held  the provision was not narrowly tailored and did not survive strict scrutiny because, regardless of whether the judge had publicly espoused his/her views, “[t]he judge is applying the law (as he[/she] sees it) evenhandedly.”[19]

2.  Undoing the Damage and Depoliticizing Judicial Elections

Justice Scalia wrote “[a] judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason.”[21]

While it is important to know where a judge stands on certain issues, judges and candidates for judicial office must be limited in what they say while campaigning. Otherwise, the potential for a dangerous nexus between sharply opinionated judges and a large pot of special interest money will be opened. The announcement clause White invalidated, which Justice Scalia wrote was underinclusive, was anything but. It was a sufficiently broad, yet narrowly tailored, provision that kept Minnesota judicial elections from turning into a cesspool of silver-tongued lawyers While Justice Scalia was correct that a candidate for judge could espouse his/her views before filing to run but not while running, judges are limited in their political activities upon assuming the bench.[24] Furthermore, in cases like United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, the Supreme Court has held that “it is not only important the Government and its employees in fact avoid practicing political justice, but it is also critical they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.”[25]

Since White was decided, “political justice”[26] has crept into state judicial elections. For example, judges regularly seek the endorsement of pro-life organizations based on their views of Roe v. . Obviously, judges and judicial candidates will have opinions. However, for the sake of confidence in the judiciary, they should keep those opinions to themselves during their campaign. Some might say that allowing judges and judicial candidates to further espouse their views on contested political and legal issues will lead to more informed voters, thus allowing voters to make better choices. State judicial elections do give voters a unique glimpse of those who will be deciding thousands of cases that affect people on a very real level, but the forces of politics should be held at bay as much as possible from influencing those elections.

Electing a judge is different from electing a member of Congress, because politics and law are two fundamentally different things. Law structures basic human relationships. Politics, on the other hand, shapes the government and creates policies that affect society as a whole and can often be subjected to people’s worst intentions. Because of how deeply it touches us, law—and the people applying it—should be kept as far away as possible from politics. Provisions like the one invalidated in White go a long way to keep judicial elections focused on the qualifications of candidates, and a small bit of those candidates’ philosophies on the law. They erect a barrier between judicial elections and preserve the impartiality of the judicial system, which is a compelling interest that ensures societal interests are served and that people are treated fairly and with basic dignity. It also preserves confidence in the courts and maintains the balance of powers in the government. It will be harder for judges to do their job if they are viewed as too partisan.

Spending from the U.S. Chamber’s Institute for Legal Reform did not spike until after 2002, when White was decided.[27] In Washington state, outside groups poured millions into a race to unseat a member of the state supreme court who made rulings with which they disagreed.[28] In West Virginia, a coal company that was involved in a mine explosion that killed 29 workers spent $3 million to elect a state supreme court justice—who then participated in a decision that invalidated a $50 million judgment against the company. These examples, and others, show that the need to keep judges and judicial candidates away from politics is more compelling than ever.

Hypothetically speaking, an appointment system would fix things. However, there are flaws with this option because corruption has taken root in many state governments.[30] People should have a say in who interprets the law and administers justice, but people vying to become judges need to be kept away from engaging in overtly political speech so we can preserve judicial impartiality and prevent judicial elections from looking like other elections.

3.  Conclusion

In order for a strong judiciary to exist in the states, judges’ impartiality needs to be preserved. Law, including those applying it, and politics, should be kept away from each other. Perhaps a system where the governor makes the initial appointment and a retention election is held would be a good way to fix this, but that is a discussion for a different piece. In the meantime, the best first step in cleaning up state judicial elections is for the Supreme Court to overturn Republican Party of Minnesota v. White.


[1] Paul Newby – Tough But Fair, YouTube (Oct. 16, 2012)

[2] Allen Loughry My House Ad, YouTube (Sept. 26, 2012)

[3] Oster for Butler County Judge, YouTube (Apr. 11, 2014)

[4] Fact Sheet on Judicial Selection Methods in the States, American Bar Association,

[5] Adam Liptak, U.S. voting for judges perplexes other nations, The New York Times (May 25, 2008)

[6] Id.

[7]Fact Sheet on Judicial Selection Methods in the States, American Bar Association,

[8] Id.

[9] Id.

[10]Lobbying Spending Database—US Chamber Institute for Legal Reform, 2017,,

[11] Spending by Outside Groups in Judicial Races Hits Record High, Secret Money Dominates, Brennan Center for Justice (November 15, 2016),

[12] Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (citing Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000)).

[13] Id.

[14] Id.

[15] Id. at 770.

[16] White, 536 U.S. at 768.

[17] Id. at 788.

[18] Id. at 775 (citing this case’s 8th Circuit opinion, Reupblican Party of Minnesota v. Kelly, 247 F.3d 854, 867 (8th Cir. 2001), in turn citing Cox v. Louisiana, 379 U.S. 559, 565 (1965) (“[a] State may also properly protect the judicial process from being misjudged in the minds of the public.”); Suster v. Marshall, 149 F.3d 523, 532 (6th Cir. 1998) (holding that the state had a compelling interest in preventing corruption or the appearance of such in the judiciary); cf. Reeder v. Kansas City Bd. of Police Comm’rs, 733 F.2d 543, 547 (8th Cir.1984) (“[i]t is proper for a state to insist that the police be, and appear to be, above reproach, like Caesar’s wife.”).

[19] Id. at 776.

[20] Id. at 779-780 (“[t]he short of the matter is this: In Minnesota, a candidate for judicial office may not say ‘I think it is constitutional for the legislature to prohibit same-sex marriages.’ He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected. As a means of pursuing the objective of open-mindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous.”).

[21] Id. at 777.

[22] See Id. (“’[p]roof that a Justice’s mind at the time he[/she] joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.’”) (quoting Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion)).

[23] See Id. at 779 (“judges often state their views on disputed legal issues outside the context of adjudication—in classes that they conduct, and in books and speeches.”).

[24] See, e.g., Ohio Canons of Judicial Conduct, Canon 7.

[25] See, e.g., United States Civil Service Commission v. National Association of Letter Carriers AFL-CIO, 413 U.S. 548, 565 (1973).

[26] See Id.

[27] Lobbying Spending Database—US Chamber Institute for Legal Reform, 2017,,

[28] Gene Johnson, Political groups are pouring millions into state supreme court races, PBS (Nov. 1, 2016)

[29] See Sal Gentile, Interest groups spend millions to control state courts, study finds, PBS (August 17, 2010).

[30] See Harry Enten, Ranking The States From Most To Least Corrupt, FiveThirtyEight (Jan. 23, 2015)

A Workable Chameleon: Using Precedent to Help Define Conviction

David Wovrosh, Associate Member, University of Cincinnati Law Review

Becoming a convicted felon can happen in the blink of an eye. A defendant walks into a courtroom and emerges as a convicted felon a short time later. But between entering and exiting that courtroom, at what point is a defendant convicted? This question carries critical implications for the accused, as a conviction opens the door to widespread social and economic costs under “civil death” statutes.[1]

Cleaton v. Department of Justice, a recent decision from the Federal Circuit Court of Appeals, aptly demonstrates the tension in defining “conviction.”[2] Given the myriad of ways in which a conviction results in the automatic loss of economic, social, and liberty interests, courts should look to Lott v. United States[3] and Dickerson v. New Banner Institute, Inc.[4] to develop a framework for convictions that allows for a more informed and intelligent pleading. A Lott/Dickerson framework would not permit a conviction to attach until a no contest plea is no longer able to be withdrawn.

Cleaton and the Question of Conviction

Cleaton, a correctional officer at the Bureau of Prisons in Virginia, was arrested for a felony charge of possession of marijuana with intent to distribute.[5] After entering a withdrawable[6] nolo contendere plea,[7] the Bureau of Prisons (BOP) notified Cleaton that he was terminated from his position pursuant to § 7371(b), which mandates that “any law enforcement officer who is convicted of a felony shall be removed from employment as a law enforcement officer.”[8] After receiving notice of termination, Cleaton appealed the BOP decision to an administrative judge, arguing that the nolo contendere plea does not amount to a “conviction” within the meaning of § 7371(b).

In effect, Cleaton’s withdrawable nolo contendere plea was held to be a “conviction” within the meaning of the statute.[12]

When is a Conviction a Conviction?

The definition of “conviction” has been a consistent source of judicial wrangling. When drafting statutes, Congress has occasionally provided a statutory definition of a “conviction.” It has done so by using qualifying language to modify the circumstances of a conviction.[13] In other cases, Congress has remained silent on the definition.[14] Where there is silence on the statutory meaning, courts must necessarily decide what a “conviction” is meant to encompass.

In Cleaton, the Federal Circuit leaned heavily on the Supreme Court’s decision in Dickerson v. New Banner Institute, Inc.[15]  In Dickerson, the Supreme Court held a defendant charged under Title IV of the Gun Control Act of 1968 was “convicted” for the purpose of the statute where the individual had entered a guilty plea during negotiations, but had not yet been sentenced.[16] The Dickerson court looked to the legislative purpose of the statute for guidance.[17] The Court determined that the language of the statute showed that a guilty plea alone, without a sentence, rose to the level of “conviction” within the meaning of the statute.[18] Other cases have provided a more nuanced construction of “conviction.” In Lott v. United States, the Supreme Court found that a withdrawable nolo contendere plea itself was not a conviction.[19] Critically, the Court in Lott predicated its decision on the ability for the defendant to withdraw the plea before imposing a sentence.[20]

Against this conflicting backdrop, the Federal Circuit in Cleaton chose to apply the standard in Dickerson, while leaving Lott unexamined. Examining the Lott and Dickerson together, it becomes clear that the Federal Circuit Court of Appeals arrived at the wrong conclusion.

Lott and Dickerson Create a Workable Conviction Model

The Federal Circuit heavily relied on Dickerson to conclude that a plea alone is a conviction under §7371(b).  Dickerson was decided precisely because the statute defined the meaning of “conviction” in its text.[21] The Dickerson court read “conviction” as it did because the statute applied to indictments as well as convictions.[22] Dickerson held that a person can be convicted “once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence.”[23] Therefore, under Dickerson, a conviction requires two elements: an establishment of guilt and nothing to be done except sentencing.

Lott examined the meaning of conviction within the context of a withdrawable nolo contendere plea.[24] Where the plea is withdrawable, “it is the judgment of the court—not the plea—that constitutes the ‘determination of guilt.’ [W]e have not been cited to any case, and have found none, that holds or even intimates the contrary.”[25] Critically, the Court found a withdrawable nolo contendere plea “itself does not constitute a conviction.”[26]

Reading Lott and Dickerson together, if the defendant is procedurally able to withdraw their no contests plea, a conviction attaches at the point where a plea is no longer able to be withdrawn, and nothing remains to be done but sentence the defendant.

Cleaton’s Misinterpretation Creates Dangerous Precedent

§ 7371 does not define “conviction.”[27] Using the Lott/Dickerson framework, it is apparent neither conviction prongs were fulfilled. First, no “determination of guilt” had been made. Using Lott, a withdrawable plea of no contest is not able to be considered a “determination of guilt”.[28] For a withdrawable no contest plea to be considered a “determination of guilt,” the court must first render judgement. Second, because the plea itself is withdrawable, there may yet be steps for the court to take. When the plea may be withdrawn, a defendant may still withdraw and enter a plea of not guilty. Procedurally, the defendant has not exhausted his options and can still affect the disposition. This can be of critical importance. Defendants are often unaware of the ramifications of a guilty plea and the opportunity to revise a plea may offer a chance to avoid a “civil death.”[30]

The Stakes of a Misapplied Conviction

The ruling in Cleaton creates a dangerous precedent that could impact thousands of lives every year. By creating a broader class of people that potentially fall under the convict label than the Lott/Dickerson framework would allow thousands of people every year would be subjected to the automatic forfeiture of liberties.

Apart from time served, there are over 38,000 distinct ways that a conviction can trigger the automatic revocation of an individual’s rights by a process called “civil death.”[31] Civil death is the “substantial and permanent change in legal status” that take effect upon the moment of conviction.[32] The trigger for these wide-ranging collateral consequences is the moment of conviction.

Collateral consequences range from the restrictions on the ability to vote, housing assistance, government benefits such as food stamps, access to educational subsidies, employment, and even access to collecting social security, among many others.[33] These collateral consequences operate independently of the sentencing and do not require the defense counsel to inform the defendant of the collateral consequences of their plea.[34] Collateral consequences can often be harsher than the sentence itself. Indeed, the “most severe and long-lasting effect of conviction is not imprisonment or fine. Rather, it is being subjected to collateral consequences involving the actual or potential loss of civil rights, parental rights, public benefits, and employment opportunities.”[35]

One justification for the lack of scrutiny in determining collateral consequences at sentencing is the interest in judicial efficiency.[36] Others justify expansive sanctions, regardless of the nature of conviction, as punishment for the conviction itself.[37] This reflects the notion that collateral consequences “are civil regulatory measures designed to prevent undue risk by proven lawbreakers.”[38] Because they are divorced from the criminal proceedings, they need not be considered at trial.[39]

There is, however, growing caution around this proposition. Indeed, the American Bar Association has recommended a tighter nexus between collateral consequences and the specific crime, and that the defendant be fully informed of the consequences of his plea.[40] Even the Supreme Court has cautioned against entering a plea where one is unaware of the full ramifications of doing so.[41]

Given the economic and liberty interests at stake, the Federal Circuit’s broad interpretation of “conviction” sets a dangerous precedent. By holding that a withdrawable nolo contendere plea can be considered a “conviction,” the Federal Circuit is unwittingly casting millions more individuals into civic death. Instead, the Supreme Court should adopt a universal definition of “conviction” where the conviction only attaches at the point a plea is no longer able to be withdrawn. This would allow procedural room for a more informed and intelligent pleading system which enables defendants to fully consider the collateral consequences of their pleadings.


The precise definition of conviction remains, at best, a judicial “chameleon,” which struggles to find a judicial consensus on its precise meaning.[43] The Federal Circuit Court of Appeals has taken an expansive reading of the term and extended it to include pleadings of nolo contendere that have yet to receive a sentence.[44] To arrive at this conclusion, the Federal Circuit Court of Appeals misapplied case law and gave little to no attention precedent. In so doing, the court expanded the triggering mechanisms for the litany of other life-long collateral consequences found in civil death. Given the severity of the implications of a the Cleaton ruling, the Supreme Court should grant cert and require a more nuanced construction of the term “conviction.” This can be done by applying Lott to Dickenson where a withdrawable plea by itself cannot render a defendant a convict.

[1] Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1791 (2012).

[2] 839 F.3d 1126 (Fed. Cir. 2016).

[3] 367 U.S. 421 (1961).

[4] 460 U.S. 103 (1983).

[5] Id. at 1127.

[6] § 7371(b) is a federal rule. Procedurally, however, Cleaton was still able to withdraw his no contest plea under Virginia State procedure.

[7] U.S. v. Norris, 281 U.S. 619, 622 (1930). A nolo contendere plea, or no contest plea, is an admission of all of the elements of the case against the defendant.

[8] 5 U.S.C. § 7371(b).

[9] Cleaton, 839 F.3d at 1128.

[10] Id.

[11] Id. at 1127.

[12] Though § 7371 is a federal crime, the procedural laws of Virginia, where the case was being tried, allow for a defendant to withdraw a plea at any time before sentencing. Cleaton, 839 F.3d at 1130.

[13] See, e.g., 38 U.S.C.A. § 5313 (incarcerated . . . for a period in excess of sixty days for conviction of a felony) (emphasis added); 5 U.S.C. § 8332(o)(6)(a) (“the terms ‘finally convicted’ and ‘final conviction’ refer to a conviction (i) which has not been appealed and is no longer appealable because the time for taking an appeal has expired, or (ii) which has been appealed and the appeals process for which is completed”).

[14] “To be sure, the terms ‘convicted’ or ‘conviction’ do not have the same meaning in every federal statute. In some statutes those terms specifically are made to apply to one whose guilty plea has been accepted whether or not a final judgment has been entered.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113 n.6 (1983).

[15]460 U.S. 103 (1983).


[16] Id.  at 112-13. The Cleaton court, similarly relying on Dickerson, determined that federal law controlled the definition of “conviction” for the purposes of §7371(b). Cleaton, 839 F.3d at 1129. Cleaton, however, fails to distinguish that the state laws of Virginia still procedurally allow for a withdrawal of a plea before sentencing. Cleaton, 839 F.3d at 1130.

[17] Dickerson, 460 U.S. at 112-113.

[18] 112-113.

[19] Lott v. U.S., 367 U.S. 421, 426-27 (1961).

[20] Id. at 426-427.

[21] Dickerson, 460 U.S. at 116. “[18 U.S.C.A.] Sections 922(g) and (h) impose the same disabilities upon a person who ‘is under indictment’ for certain crimes. This use of the respective tenses is significant and demonstrates that Congress carefully distinguished between present status and a past event.”

[22]Harmon v. Teamsters, Chauffeurs & Helpers Loc. Union 371, 832 F.2d 976, 978 (7th Cir. 1987) (emphasis added).

[23] Dickerson, 460 U.S. at 114 (emphasis added).

[24] Lott v. U.S., 367 U.S. 421 (1961).

[25] Id. at 427.

[26] Id. at 426 (emphasis added).

[27] See 5 U.S.C. § 7371.

[28] Lott v. U.S., 367 U.S. at 427.

[29] Id.

[30] Gabriel J. Chin, The New Civil Death, supra note 1, at 1814-15.

[31] Kathryne M. Young & Joan Petersilia, Keeping Track: Surveillance, Control, and the Expansion of the Carceral State, 129 HARV. L. REV. 1318, 1341 (2016).

[32] Gabriel J. Chin, The New Civil Death, supra note 1, at 1790.

[33] See Lahny R. Silva, Clean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders, 79 U. Cin. L. Rev. 155, 164 (2010); Kathleen M. Olivares et. al., The Collateral Consequences of A Felony Conviction: A National Study of State Legal Codes 10 Years Later, 60 Fed. Probation 10 (September 1996).

[34] Gabriel J. Chin, The New Civil Death, supra note 1, at 1814-15.

[35] Id. at 1791.

[36] Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 646 (2006).

[37] See Gabriel J. Chin, Are Collateral Sanctions Premised on Conduct or Conviction?: The Case of Abortion Doctors, 30 Fordham Urb. L.J. 1685 (2003).

[38] Id. at 1685.

[39] Id.

[40] “The legislature should not impose a collateral sanction on a person convicted of an offense unless it determines that the conduct constituting that particular offense provides so substantial a basis for imposing the sanction that the legislature cannot reasonably contemplate any circumstances in which imposing the sanction would not be justified.” ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons Standard 19-2.2 (3d ed. 2004), available at http:// In 19-2.3, the ABA also recommends a full notification to the defendant on the applicable collateral consequences of the conviction.

[41] See Padilla v. Kentucky, 559 U.S. 356 (2010).

[42] See, e.g. Gabriel J. Chin, The New Civil Death, supra note 1, at 1803-06. Given the steady rise of mass incarceration and the mass proliferation of collateral consequence statutes, judicial restraints on the ability to participate in civil life have exploded exponentially in recent decades.

[43] Harmon v. Teamsters, Chauffeurs & Helpers Loc. Union 371, 832 F.2d 976, 978 (7th Cir. 1987).

[44] Cleaton, 839 F.3d at 1129-30.

An Automatically-Returned Pre-Petition Stone Gathers no Moss

David Wovrosh, Associate Member, University of Cincinnati Law Review

Is it possible to do something by not doing anything at all?  At issue is a relatively common occurrence with an uncommonly difficult question: should a creditor return repossessed property to the debtor as soon as a bankruptcy petition has been filed? Recently, the Tenth Circuit accused the majority of circuits of fundamentally misreading the Bankruptcy Code.[1] In so doing, the Tenth Circuit has invited the Supreme Court to trek into a semantical thicket: what does it mean to “control” something? The Supreme Court should look to the contested statutory language as well as the purpose and practical considerations of the Bankruptcy Code for answers. The Court should decide that creditors, holding onto property seized before the debtor filed petition for bankruptcy (pre-petition), must return the property to the debtor.

In re Cowen Creates a Divide

The automatic stay provision of the Bankruptcy Code prohibits a creditor from taking “any act to exercise control over property of the [debtor’s] estate.”[2] The automatic stay provision operates to “afford the debtor a ‘breathing spell’ by halting the collection process.”[3] This allows the debtor to formulate a “plan or simply . . . be relieved of the financial pressures that drove [the debtor] into bankruptcy.”[4]

In 1983, the Supreme Court expanded the “breathing room” of the debtor’s bankruptcy estate in U.S. v. Whiting Pools, Inc.[5] Critically, the Whiting Court held that the debtor’s bankruptcy estate included property that had been repossessed pre-petition.[6] The following year, Congress expanded protections to the debtor’s estate by extending the Bankruptcy Code’s stay provision from prohibiting only acts to obtain possession to prohibiting any act that “exerts control” over the debtor’s property.[7] This amendment, read together with Whiting Pools,  dictates that a creditor may not “exert control” over any property that it seized pre-petition. The legislative history is silent as to what Congress meant by “exerting control.”[8] This left the courts to determine whether “exerting control” requires an affirmative act, or if merely possessing the property is a violation of the stay.

The majority of jurisdictions would have the creditor return any secured collateral to the debtor’s bankruptcy estate immediately after the debtor files a bankruptcy petition.[9] The Seventh Circuit in Thompson v. General. Motors Acceptance Corp., LLC, examined the frequent occurrence of a repossessed car.[10] The court determined that the creditor, having seized the car before the bankruptcy petition, was exerting control over the collateral by storing the car on the lot and refusing to return it.[11]

In a nearly identical scenario, the Tenth Circuit explicitly rejected the Thompson court’s holding.[12] In In re Cowen, a debtor’s commercial truck was repossessed by a lender after the debtor defaulted on payment and the lender refused to return the truck to the bankruptcy estate.[13] Under circumstances virtually identical to those of Thompson, the Tenth Circuit found the plain text of the automatic stay provision dispositive.[14] The court held that the stay provision requires a creditor to take an affirmative step before any violation occurs.[15] The Tenth Circuit lamented that Thompson had prioritized policy and practicality over what the Tenth Circuit found to be a plain reading of the statute.[16] However, inspection of the statute reveals that there may not be a satisfactory “plain reading” after all.

The Automatic Stay Provision is Ambiguous

The Thompson court first focused on the plain meaning of what it means to “exert control.” The plain meaning of “control”, the court found, meant that simply possessing pre-petition property was sufficient.[17] This “possession as control” approach to the automatic stay provision is not a novel reading of the provision, with most courts using an identical interpretation.[18]

Cowen, in contrast, places emphasis not just on “control,” but on “acts . . . to control.”[19] The Tenth Circuit found that “acts” necessarily require an affirmative step.[20] Passive possession, therefore, does not constitute an “act” under the automatic stay provision.[21] The only commonality between the circuits, it seems, is that Congress was silent on what they meant when they added “control” to the automatic stay provision.[22] The disagreement over the plain meaning of the automatic stay is a strong case in itself for ambiguity.[23] Therefore, a deeper inquiry into the animating forces behind the provision is necessary.

Legislative History and Policy Evince Greater Protections

In Whiting Pools, the Supreme Court noted that the Bankruptcy Code encouraged the efficient use of a debtor’s assets.[24] The Supreme Court held that “under the reorganization provisions of the Bankruptcy Code, a troubled enterprise may be restructured to enable it to operate successfully in the future.”[25] The legislative history of the Bankruptcy Code’s reorganization provisions points to an intent to encourage the use of all the estate’s assets.[26] Assets in the debtor’s possession better serve the purpose of reorganization when they are in use than if they were to be  “sold as scrap.”[27] The majority position recognizes the Code’s protective purpose and is therefore the correct reading of the statute.

Against this backdrop, the Thompson court argued that to “hold that ‘exercising control’ over an asset encompasses only selling or otherwise destroying the asset would not be logical given the central purpose of reorganization bankruptcy.”[28] The Thompson court further observed that “[a]n asset actively used by a debtor serves a greater purpose to both the debtor and his creditors than an asset sitting idle on a creditor’s lot.”[29] The majority position points to further Bankruptcy Code provisions to suggest the automatic stay provision, as the majority understands it, is intended to work in tandem with other Code provisions to make the automatic stay self-executing upon bankruptcy petition.[30]

While the Tenth Circuit court in Cowen found their own interpretation of the stay provision dispositive, it nevertheless leveled further critique at the majority position.[31] The Tenth Circuit iterated that the majority position’s “best argument” was the link between the automatic stay and other Code provision.[32] The Cowen court found this line of reasoning unpersuasive, finding no “textual link” between the provisions to support such a reading of the Bankruptcy Code.[33] Cowen further criticized the majority position as being too broad in its reading of legislative intent.[34] “Congress,” the Tenth Circuit warned, “does not ‘hide elephants in mouseholes.’”[35]

The Tenth Circuit’s categorical rebuke of the majority position invites the Supreme Court to weigh in.[36] On closer examination, it becomes evident that the majority position, requiring a self-executing automatic stay provision mandating the return of pre-petition property, more closely embodies the legislative intent of the automatic stay provision.

Cowen Undermines the Purpose of the Automatic Stay

Much of the seminal litigation around the automatic stay provision involves the disposition of commercial vehicles.[37] Often, the debtor seeks to reclaim the use of the vehicle, aiming to utilize it in a commercial capacity in order to satisfy the bankruptcy estate’s creditors. These vehicles are, as the Supreme Court has noted, more efficiently used when they are poised to generate revenue to satisfy the debts of the estate.[38] A self-executing automatic stay provision promotes industrious use of collateral.[39] A self-executing automatic stay provision allows the debtor to pay off the creditor without requiring the estate to motion the court for a return of the collateral. Cowen’s interpretation would discourage and even require an inefficient use of property squarely within the debtor’s estate.[40] To achieve the return and, therefore, efficient use of the debtor’s collateral, the burden is shifted to the (already strained) bankruptcy estate to petition the court for a return.[41]

But this holding ignores the burdens that the automatic stay provision mandates. The stay provision squarely places the burden on the creditor to motion the court for the return of any property.[42] Even then, this is a heightened burden that is only to be granted if the court finds that the debtor is not sufficiently protecting the creditor’s collateral.[43] Under this framework, the debtor is allowed to generate revenue through the use of their property, while simultaneously protecting the creditor’s interest in the value of the collateral. The Tenth Circuit’s interpretation would paradoxically require the debtor to resort to court-petitioning in order to put to use what is already their own property.[44] The Tenth Circuit’s reading is contrary to both the fundamental protections of the automatic stay provision[45] and the Bankruptcy Code’s requirement of judicial efficiency.[46] For these reasons, the majority reading should be adopted by the Supreme Court.


Cowen has acted as a needless agitator to a common occurrence in bankruptcy. The Tenth Circuit has ignored the majority of circuits’ identical understanding of the plain meaning of the Bankruptcy Code’s stay provision. Instead, the Tenth Circuit found its own understanding of the Code dispositive and would require an affirmative act to “establish control” of seized pre-petition collateral. The Tenth Circuit ignores the expansive and fundamental tenants of the Bankruptcy Code. This expansive reading was articulated by legislative history as well as Supreme Court precedent. The Cowen court criticized the majority’s use of Code provisions working in tandem to support its textual interpretation. The Cowen reading, however, results in an inefficient burden-shifting that the drafters of the Code had not intended and one that goes against the core tenants of the Code. For these reasons, the Supreme Court should find that the proper reading of the automatic stay provision mandates any property seized pre-petition to be returned upon bankruptcy filing.

[1] 849 F.3d 943, 946 (10th Cir. 2017).

[2] Id.

[3] In re Siciliano, 13 F.3d 748, 750 (3d Cir. 1994).

[4] H.R. Rep. No. 595, 95th Cong., 2d Sess. 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296.

[5] 462 U.S. 198, 199 (1983).

[6] Id. at 209.

[7] PL 98–353 (HR 5174), PL 98–353, July 10, 1984, 98 Stat 333.

[8] Thompson v. Gen. Motors Acceptance Corp., LLC, 566 F.3d 699, 702 (7th Cir. 2009).

[9] See, e.g. Weber v. SEFCU (In re Weber), 719 F.3d 72, 81 (2d Cir. 2013); Thompson v. Gen. Motors Acceptance Corp. (In re Thompson), 566 F.3d 699, 703 (7th Cir. 2009); In re Sharon, 234 B.R. 676, 681 (B.A.P. 6th Cir. 1999).

[10] Thompson v. Gen. Motors Acceptance Corp., LLC, 566 F.3d 699 (7th Cir. 2009).

[11] Id. at 704.

[12] In re Cowen, 849 F.3d 943 (10th Cir. 2017).

[13] Id. at 946.

[14] Id. at 949.

[15] Id. at 949.

[16] In re Cowen, 849 F.3d at 948-49.

[17] “Holding onto an asset, refusing to return it, and otherwise prohibiting a debtor’s beneficial use of an asset all fit within this definition, as well as within the commonsense meaning of the word.” Thompson, 566 F.3d at 702. This conclusion was reached by consulting the dictionary version of “control.”

[18] See, e.g. In re Weber, 719 F.3d 72, 79 (2d Cir. 2013) (holding that the standard dictionary definition of “control” unavoidably lead to the conclusion that holding a debtor’s car post-petition constituted exercising authority over the property and therefore fit squarely into the definition of “control”); In re Sharon, 234 B.R. 676, 682 (Bankr. App. 6th Cir. 1999) (“Withholding possession of property from a bankruptcy estate is the essence of ‘exercising control’ over possession.”).

[19] “Breaking down the sentence, ‘any act’ is the prepositive modifier of both infinitive phrases. In other words, § 362(a)(3) prohibits ‘any act to obtain possession of property’ or ‘any act to exercise control over property.’” Cowen, 849 F.3d at 949.

[20] “’Act’, in turn, commonly means to ‘take action’ or ‘do something.’” Cowen, 849 F.3d at 949

(citing New Oxford American Dictionary 15 (3d ed. 2010)).

[21] Cowen, 849 F.3d at 949.

[22] Cowen, 849 F.3d at 949; Thompson, 566 F.3d at 702.

[23] See Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533 (1983). “Too often the meaning of a statute is smuggled into the rules that determine when, and why, to cut off debate. The philosophy of language . . . has established that sets of words do not possess intrinsic meanings and cannot be given them; to make matters worse, speakers do not even have determinative intents about the meanings of their own words.” Id. at 536.

[24] Whiting Pools, 462 U.S. at 203.

[25] Id.

[26] “It is more economically efficient to reorganize than to liquidate, because it preserves jobs and assets.” H.R. REP. 95-595, 220, 1978 U.S.C.C.A.N. 5963, 6179.

[27] Id.; See also Whiting Pools, 462 U.S. at 203.

[28] Thompson, 566 F.3d at 702.

[29] Id.

[30] “This reading supports a framework wherein § 542 creates a self-executing obligation for creditors to return assets to the estate, and § 362 provides a ‘remedy for failure to do so.’” Anne Zoltani & Hon. Janice Miller Karlin, Examining S 362(a)(3): When “Stay” Means Stay, 36 Am. Bankr. Inst. J. 20, 21 (May 2017) (quoting Abrams v. Sw. Leasing & Rental Inc. (In re Abrams), 127 B.R. 239, 242-43 (B.A.P. 9th Cir. 1991)).

[31] “In this case, [this] is . . . where the inquiry ends, for where, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.”  Cowen, 849 F.3d at 949.

[32] Cowen, 849 F.3d at 950.

[33] Id.

[34] Id. at 949.

[35] Id.

[36] Anne Zoltani & Hon. Janice Miller Karlin, Examining S 362(a)(3): When “Stay” Means Stay, supra note 32, at 61.

[37] See, e.g. Cowen, 849 F.3d; Thompson, 566 F.3d; Weber v. SEFCU (In re Weber), 719 F.3d 72 (2d Cir. 2013); In re Sharon, 234 B.R. 676 (Bankr. App. 6th Cir. 1999).

[38] H.R. REP. 95-595, 220, 1978 U.S.C.C.A.N. 5963, 6179; Whiting Pools, 462 U.S. at 203.

[39] Even outside the context of commercial use, cars are often necessary tools to have debtors remain in an economically viable position. A simple statistic highlights this necessity: over 86 percent of Americans rely on a car to go to work. U.S. Census Bureau, Who Drives to Work? Commuting by Automobile in the United States: 2013, at 2 (2015),

[40] “We conclude that the reorganization estate includes property of the debtor that has been seized by a creditor prior to the filing of a petition for reorganization.” Whiting Pools., 462 U.S. at 209. Cowen, on the other hand, does not require an automatic turnover, nor does Cowen apply the automatic stay provision to pre-petition property at all. Cowen, 849 F.3d at 950.

[41] Id. The practical effect of not applying the automatic stay provision in so place no affirmative obligation on the debtor; rather the creditor most move the court to compel a return. Anne Zoltani & Hon. Janice Miller Karlin, supra note 37, at 61.

[42] 11 U.S.C.A. § 362(d); see also 3-362 Collier on Bankruptcy P 362.07 (16th 2017).

[43] 11 U.S.C.A. § 361.

[44] Whiting Pools., 462 U.S. at 209.

[45] H.R. REP. 95-595, 220, 1978 U.S.C.C.A.N. 5963, 6179.

[46] “These rules shall be construed to secure the just, speedy, and inexpensive determination of every case and proceeding.” Fed. R. Bankr. P. 1001.

Scope of Discovery: Amended 26(b)(1)

Zach Kurzhals, Associate Member, University of Cincinnati Law Review

In 2015, the United States Supreme Court adopted amendments to the Federal Rules of Civil Procedure (FRCP). Among these changes was an amendment to FRCP Rule 26(b)(1) adding the component of proportionality to the existing component of relevance. FRCP Rule 26 governs civil discovery and 26(b)(1) specifically deals with the scope of discovery.[1] The interpretation and application of Rule 26(b) is a critical component to the cost of litigation. Attorneys must understand how courts apply 26(b)(1) to accurately estimate the costs of litigation for their clients.[2]  This is especially true in the age of electronically stored information where lawsuits can require parties to turn over millions of documents.[3] There appears to be two approaches to interpret the new Rule 26(b)(1). In the first approach, the Arizona district court splits the analysis into two parts.[4] The second approach focuses on relevance and is almost identical to the approach utilized before the 2015 amendment.[5] An examination of the amended rule and the Advisory Committee notes suggests the Arizona court’s approach better addresses the Committee’s concerns.

The Amendment: Then and Now

Rule 26(b)(1) prior to the 2015 amendment provided for the scope of discovery to be dependent on relevancy and limited to discovery requests that “appear reasonably calculated to lead to the discovery of admissible evidence.”[6] This language was explicitly discarded and replaced by a proportionality standard that includes six considerations for parties and courts to utilize when discovery conflicts arise.[7]

The Amended Rule: Arizona

The Arizona district court specifically addressed the amendment to Rule 26(b)(1) in an order denying a discovery request.[8] In In re: Bard IVC Filters Products Liability Litigation patients brought a products liability action against a medical device manufacturer.[9] The patients sought discovery of all communications between the defendant and foreign regulators.[10] The court determined the majority of requested communications originated inside the U.S. and Bard’s proffered search would disclose those communications.[11]  However, the plaintiffs hoped to find inconsistencies between domestic communications and the communications originating from Bard’s foreign entities.[12] The discovery dispute centered upon requests regarding foreign originating communications.[13] The court split its analysis into two sections: a relevancy section and a proportionality section.[14]

The court found the discovery sought to be marginally relevant, then addressed proportionality.[15] For the court’s proportionality analysis, it specifically addressed three of the six factors outlined in Rule 26(b)(1).[16] The court found that the relative access to information favored compelling discovery, but the court also reiterated that the importance of the additional discovery for resolving the issues appeared to be marginal.[17] However, Bard presented the court with specific details illustrating the burden accompanying the discovery requested.[18] These specifics persuaded the court to find the discovery request to be too burdensome and expensive in comparison to the benefit of “a mere possibility of finding . . . inconsisten[cy].”[19] Because the request was not proportional to the needs of the case, the court concluded Bard need not comply with the request.[20] According to the court, the burden of proving proportionality was not placed on the party seeking discovery.[21] Instead, this inquiry is the responsibility of the parties and the court.[22] It appears in Arizona, a party embroiled in a discovery dispute should be prepared to present specifics supporting their position on proportionality, regardless of the position they hold on the discovery request.[23]

The Difference in Texas

In considering a motion to compel discovery the Texas district court addressed the amended Rule 26(b)(1). In Carr v. State Farm Mutual Automobile Insurance Company, the plaintiff was injured in an automobile accident and was denied coverage on some claims. [24]  The insurance company was seeking to compel answers to interrogatories and document requests. According to the district court, the new version of 26(b)(1) made no material changes to proportionality. Additionally, the court stated that a party seeking to resist discovery bears the burden of making specific objections regarding proportionality.[25] Furthermore the party seeking discovery may still need to make its own showing of proportionality factors.[26]

The court discussed its general understanding of a few proportionality factors in the rule.[27] The court’s discussion relied heavily on the previous Committee Notes for the rule’s amendment in 1983,[28] when proportionality was first considered within Rule 26, and Committee Notes from 1993.[29] Thus the court applied the same interpretation and utilized the rule in the same fashion as district courts over the last two decades. As a result, the Texas court did not feel compelled to articulate application of its understanding of the proportionality factors in its analysis. This created an appearance that the District Court’s basis for granting discovery was almost entirely dependent on relevancy. It appears in Texas, a party embroiled in a discovery dispute need only be prepared to argue whether or not the requested material is relevant.

Arizona Approach v. Texas Approach

The committee notes pertaining to the new version of 26(b)(1) explicitly stated the goal of the amendment is “to stimulate greater judicial engagement when discovery approached the margins of what might be relevant to the case.”[30] The experience of the Committee suggested a more dramatic step was needed to ensure a more consistent and diligent application of discovery limits by the courts.[31] This step was to remove the “reasonably calculated” language and insert the proportionality language directly into 26(b)(1), thus raising the perception of proportionality.[32]

The two approaches discussed above have two major similarities that align with the revised rule. First, they both refrain from incorporating the phrase “reasonably calculated” in their analyses.[33] Second, both courts agree the burden of discovery is not placed on the party seeking discovery.[34] However, in the application of the new version of Rule 26(b)(1), the courts differ greatly. The Arizona court decided discussion of discovery requires analysis be split into two parts, with one part focusing on proportionality. The Texas Court maintained proportionality as an inherent consideration under relevancy.

The Arizona District Court explicitly listed and discussed various factors of proportionality and provided findings in consideration of those factors in support of its ultimate decision.[35] The Texas District Court only summarized its understanding of a few factors of proportionality and did not explicitly apply them in its analysis of the discovery requests.[36] There could be various explanations for this less involved approach that would harmonize the two courts. For example, perhaps the Texas Court did not feel the discovery in dispute approached the margins of what may be relevant in the case. However, most of these explanations are defeated when looking at subsequent decisions of the Texas court:[37] the court continues to almost entirely disregard proportionality in its analysis.[38] This approach causes parties to focus almost entirely on relevance, despite the intention of revising Rule 26(b)(1) to add emphasis on proportionality.[39] By separating the analysis into two distinct parts, the Arizona approach will prove to more effectively address the problems that the amended Rule 26(b)(1) was intended to address.

If district courts adopted a stance similar to Arizona’s District Court in Phoenix and created a two part approach to addressing discovery, it is certainly more likely these courts will develop a consistent and diligent application of discovery limits.[40] Although this may require a more in-depth analysis for every discovery dispute, this is an analysis that is not typically time consuming. For discovery disputes concerning what some consider an apparent proper outcome, courts would only have to devote as much time to proportionality as the parties could bring arguments with supporting facts. Additionally, the committee notes make clear the intent was to garner greater judicial involvement in discovery.[41] This inherently requires more time and effort by District Courts. Therefore, this new burden to District Courts has already been considered by the Advisory Committee and the Supreme Court when adopting this revision. The Texas approach appears to simply languish in the pre-amendment language and this is evidenced by the heavy reliance the Texas Court placed on Committee Notes of 1983 and 1993 while almost completely ignoring the 2015 Committee Notes. It is certainly true the 1983 and 1993 Committee notes can explain,[42] and are in fact referenced by the 2015 notes when explaining, the different factors of proportionality.[43] However, if over-discovery is to be remedied as the Advisory Committee hopes to remedy it, with greater judicial involvement, the new approach is required.

The real change to Rule 26(b)(1) can be found in the notes and it is not a substantive change to the rule. The Arizona District Court out of Phoenix, utilizing the 2015 Committee Notes, recognized the Committee’s attempt at reinvigorating proportionality and increasing judicial engagement.[44] Clearly the revision was an attempt to change how courts address disputes concerning the scope of discovery. It is for this reason the Arizona approach, a new analysis to considering scope of discovery, is preferable to that of the Texas approach, which appears to maintain the status quo from the previous 15 years.

[1] Fed. R. Civ. Pro. 26(b)(1)

[2] 20 Paula Hannaford-Agor & Nicole L. Walters, Estimating the Cost of Civil Litigation 4-7 (No. 1 2013).

[3] Drone Techs., v. Parrot S.A., 838 F.3d 1283, 1296 (Fed. Cir. 2016) (Defendant produced over 14 million pages of documents).

[4] In re: Bard IVC Filters Products Liability Litigation, 317 F.R.D. 562, 566 (D. Ariz. 2016) (Phoenix Division).

[5] Carr v. State Farm Mutual Automobile Insurance Company, 312 F.R.D. 459, 472 (N.D. Tex. 2015) (Dallas Division).

[6] Fed. R. Civ. P. Rule 26(b) (2000).

[7] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“That language had been misread and misunderstood by many.”); Id. (“[I]t was no longer sufficient to show that the proposed discovery was relevant.”); The rule lists the following six considerations for proportionality: importance of the issues at stake in the action; the amount in controversy; the parties’ relative access to relevant information; the parties’ resources, the importance of the discovery in resolving the issues; whether the burden or expense of the proposed discovery outweighs its likely benefit.

[8] In re: Bard, 317 F.R.D. 562, 566 (D. Ariz. 2016).

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 563.

[13] Id. at 565.

[14] Id. at 564 (“Relevancy alone is no longer sufficient—discovery must also be proportional to the needs of the case.”).

[15] Id. at 566.

[16] Id. (discussing the importance of the discovery in resolving the issues, relative access to relevant information, and whether the burden or expense of the proposed discovery outweighs the benefit).

[17] Id.

[18] Id. In order to comply with the discovery request Bard asserted they would have to identify applicable custodians of the foreign communications, from entities in eighteen different countries for the last thirteen years, collect ESI from them, and search for and identify communications with foreign regulators.

[19] Id.

[20] Id.

[21] Id. at 564 (“[T]he amendment does not place the burden of proving proportionality on the party seeking discovery.”).

[22] Id.

[23] See Id.

[24] 312 F.R.D. 459, 472 (N.D. Tex. 2015).

[25] Id. at 466 (“burdens to show undue burden or lack of proportionality have not fundamentally changed.”).

[26] Id. at 468.

[27] Id. at 467-68 (discussing relative access to relevant information; the amount in controversy; the parties’ resources; and the burden or expense of proposed of proposed discovery).

[28] Id.

[29] Id. Accordingly, relative access to relevant information focused on “information asymmetry” and discovery bears heavier on the party with more information. The amount in controversy, the court explained, is only one factor to be balanced against others, such as vitally important personal and public values. Consideration of the parties’ resources, the court continued, does not foreclose discovery requests to poor parties or justify unlimited discovery from wealthy parties. Lastly, the court stated that the burden or expense of proposed discovery should be determined in a realistic way and that new advancements in computing and electronically searching information should be considered.

[30] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015)

[31] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“not to impose any new limits or alter the parties’ duties but rather to increase awareness of the limits and duties that have existed—but have too often been overlooked or ignored—since 1983.”).

[32] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“That language had been misread and misunderstood by many as a statement about the scope of discovery.”).

[33] In re Bard, 317 F.R.D. 562, 565-66; Carr, 312 F.R.D. 459, 469-72.

[34] In re Bard, 317 F.R.D. 562, 564; Carr, 312 F.R.D. 459 467.

[35] In re Bard, 317 F.R.D. 562, 566.

[36] Carr v. State Farm Mutual Automobile Insurance Company, 312 F.R.D. 459, 472 (N.D. Tex. 2015) (Dallas Division).

[37] Gondola v. USMD PPM, LLC, 223 F. Supp. 3d 575, 581-92 (N.D. Tex. 2016) (separating the court’s analysis into eleven separate parts, without utilizing the word proportional and discussing a single factor of proportionality once).

[38] See Gondola, 223 F. Supp. 3d 575, 581-92 (N.D. Tex. 2016); See also, e.g., Samsung Elecs. Am., Inc. v. Yang Kun Chung, No. 3: 15-CV-4108-D, 2017 WL 2832621, at *46 (N.D. Tex. June 26, 2017).

[39] Carr, 312 F.R.D. 459, 471 (“Defendant explains that ‘[t]the policy under which Plaintiff seeks to recover includes an “Other Insurance” provision’ . . . and asserts ‘[t]hese requests are directly relevant to any offsets to which State Farm may be entitled.”).

[40] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015) (“[T]o get judges and parties to more consistently and more diligently fulfill their longstanding obligations.”).

[41] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015).

[42] Fed. R. Civ. P. 26(b) advisory committee’s note (1993); See also Fed. R. Civ. P. 26(b) advisory committee’s notes (1983).

[43] Fed. R. Civ. Pro. 26(b) advisory committee’s notes (2015).

[44] See In re Bard, 317 F.R.D. 562, 564-565.

Analyzing the “Sex” in Sexual Orientation Discrimination

Maria Castro, Associate Member, University of Cincinnati Law Review

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against their employees on the basis of race, color, religion, sex, or national origin.[1] Circuit courts are split over whether discrimination on the basis of sexual orientation is included under Title VII’s prohibition against sex discrimination.[2] Historically, courts did not recognize sexual orientation discrimination as a cognizable action under Title VII.[3] However, in 1989, the Supreme Court in Price Waterhouse held gender-stereotyping claims were a form of sex discrimination.[4] Some federal courts have allowed LGBT individuals to bring sex discrimination claims based on prohibited gender stereotyping.[5] In March 2017, the Eleventh Circuit reaffirmed its precedent that sexual orientation is not a cognizable action on its own.[6] However, in April 2017, the Seventh Circuit became the first circuit to hold sexual orientation discrimination was prohibited sex discrimination under Title VII.[7]

In Zarda v. Altitude Express, the Second Circuit upheld precedent stating that sexual orientation discrimination was not protected, but reheard the case en banc to consider overturning its precedent.[8] During the en banc hearing, the EEOC and the DOJ filed opposing amicus briefs. The EEOC argued sexual orientation is a prohibited form of sex discrimination, whereas the DOJ argued that it is not. Given the circuit split and the differing federal agency opinions on the same issue, it is possible the Supreme Court will grant certiorari to hear this issue in Evans. The Second Circuit should find sexual orientation, on its own, is not a protected class under Title VII because it is not listed in the statute, it was not intended to be included in the statute, and it is ultimately the legislature’s role to amend the statute to include sexual orientation as a protected class.

The Eleventh Circuit: Title VII Does Not Prohibit Sexual Orientation Discrimination

In Evans v. Georgia Regional Hospital, the Eleventh Circuit held sexual orientation discrimination is not a cognizable claim under Title VII.[9] The employee in Evans argued that the Supreme Court supported a cause of action for sexual orientation discrimination in Price Waterhouse v. Hopkins, 490 U.S. 228.[10] In support of her gender-nonconformity claim, the employee argued sexual orientation is a gender non-conformity issue because “discrimination based on gender stereotypes is a broad claim that encompasses more than just her appearance, but also provides for suits based on other stereotypes, such as family structure.”[11] However, the Eleventh Circuit disagreed, recognizing that Price Waterhouse supported a cause of action for gender non-conformity, but that a gender non-conformity claim was not the same as a sexual orientation claim.[12]

All persons, whether LGBT or not, are protected from discrimination based on gender stereotype.[13] Price Waterhouse specifically allowed for gender-nonconformity claims to be brought under sex discrimination claims; however, it did not address sexual orientation claims.[14] An LGBT individual might also deviate from gender stereotypes, but not necessarily.[15] A lesbian woman, just like a straight woman, may bring a gender-nonconformity claim if it is found she was fired for wearing a “male haircut,” and therefore not conforming to her employer’s gender expectations of what a woman should look like.[16] However, just as a straight woman cannot recover under Title VII if she is fired for being heterosexual, a lesbian woman cannot recover under Title VII if she is fired for being a lesbian.[17] Therefore, gender non-conformity and sexual orientation are two legally distinct concepts.[18] As a result, Price Waterhouse does not support a cause of action for sexual orientation claims simply because it supports a cause of action for gender-nonconformity claims.

The Seventh Circuit: Title VII Prohibits Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held discrimination on the basis of sexual orientation is a form of sex discrimination.[19] In making this determination, the Seventh Circuit analyzed Price Waterhouse and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75.[20] The employee in Hively offered two approaches to support her claim that sex discrimination includes sexual orientation discrimination.[21]

Under the comparative theory method, the court examined whether the outcome for the employee would have differed if the employee’s sex changed.[22] The employee was a woman married to a woman, so the court looked at whether the outcome would have differed if she had been a man married to a woman. The court found under this approach, the employer disadvantaged her “because she is a woman.”[23] Furthermore, the court found the line between a gender nonconformity claim and a sexual orientation claim does not exist.[24] As a woman, the employer expected the employee to be married to a man, not to another woman. According to the Seventh Circuit, sexual orientation discrimination is a form of gender nonconformity discrimination because “it is based on assumptions about the proper behavior for someone of a given sex.”[25] It is impossible to discriminate against a person based on their sexual orientation without taking into account their sex.[26]

Under the association approach, the Seventh Circuit relied on Loving v. Virginia[27] to find that employees have a right to associate intimately with a person of the same sex.[28] The court found that “it is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”[29] For example, the Second Circuit found an employer discriminated on the basis of race when it fired a white employee because he was married to a black woman.[30] The court found that “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” Therefore, the court in Hively found that when an employer fires an employee for her association with another woman, the employee suffers discrimination because of the employee’s own sex.[31]

The Second Circuit Should Follow Precedent

Congress did not include sexual orientation discrimination as a protected class within Title VII. The text of Title VII specifies that an employer cannot discriminate based on “race, color, religion, sex, or national origin.” Sexual orientation and sex are not one in the same. Sex refers to one’s biological status and is typically categorized as male, female, or intersex.[32] Sexual orientation refers to the sex of those whom one is sexually and romantically attracted.[33] Congress has introduced and failed to pass many bills that would have included sexual orientation discrimination as a protected class.[34] There are a variety of reasons to explain why Congress did not pass any of these bills. It could possibly be indicative of Congressional intent to exclude sexual orientation as a protected class, or it could be indicative of Congressional belief that sexual orientation discrimination is already included under sex discrimination. It could also be due to disagreement about the terminology among members of Congress.

Regardless of the reason that Congress has not yet adopted a bill amending Title VII to include sexual orientation discrimination as a protected class, the main point is that Congress is the appropriate branch to determine this issue. Congress is the branch that created Title VII, and the only branch that can amend it. It cannot be argued that in 1964, Congress intended to include sexual orientation discrimination within Title VII protections. When Congress included “sex” discrimination as a protected class, it intended to prohibit employers from discriminating against employee’s based on their sex, not based on their sexual orientation. Sex and sexual orientation are two separate concepts.

There are many sound policy arguments to support including sexual orientation as a protected class under Title VII. LGBT individuals are treated as second-class citizens when employers can fire them simply for being LGBT. In addition, it is a bizarre notion that an employee may legally get married on a Saturday, and then also legally be fired for it on a Monday.[35] However, when the Supreme Court recognized same-sex marriage in Obergefell, it dealt with state action, not private action.[36] State action is subject to constitutional limits; private action is regulated by statute.[37] Title VII is that statute at issue here, not the Due Process Clause or the Equal Protection Clause. Title VII does not include sexual orientation as a protected class. Therefore, the policy arguments that support protecting LGBT individuals from employment discrimination should be directed towards Congress, not the courts.


The Second Circuit should uphold precedent and find sexual orientation discrimination is not a cognizable action under Title VII and the Supreme Court should rule accordingly if it hears this issue. In order to make sexual orientation a protected class under Title VII, Congress should amend Title VII. Congress is the appropriate branch to make this change in the law. However, attorneys should continue to keep in mind that LGBT clients might be able to make valid gender-nonconformity claims, under the appropriate set of facts.

[1] 42 U.S.C. § 2000e-2.

[2] Hively v. Ivy Tech Cmty. Coll. Of Ind., 853 F.3d 339 (7th Cir. 2017); Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017); Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017).

[3] Hively, 853 F.3d at 340.

[4] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[5] Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017).

[6] Evans, 850 F.3d at 1255.

[7] Hively, 853 F.3d at 340.

[8] Sexual Orientation and Gender Identity Discrimination Under Title VII, Practical Law Practice Note w-007-8106

[9] 850 F.3d at 1255.

[10] Id. at 1256.

[11] Id. at 1254.

[12] Id.

[13] Id.

[14] Id. at 1256.

[15] Id. at 1258 (Judge William Pryor, concurring).

[16] Id.

[17] Id.

[18] Id.

[19] 853 F.3d at 341

[20] Id. at 342.

[21] Id. at 345.

[22] Id.

[23] Id.

[24] Id. at 346.

[25] Id.

[26] Id.

[27] 388 U.S. 1.

[28] Hively, 853 F.3d at 345.

[29] Id.

[30] Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008).

[31] Hively, 853 F.3d at 349.

[32] Resolution on gender and sexual orientation diversity in children and adolescents in schools. (2015). American Psychological Association & National Association of School Psychologists. Retrieved from ntation-diversity.aspx

[33] Id.

[34] Evans, 850 F.3d at 1261 (Judge William Pryor, concurring).

[35] Hively, 853 F.3d at 342.

[36] Id. at 372 (Judge Sykes, dissenting).

[37] Id.

The FMLA and Retaliation

Alexander Foxx, Associate Member, University of Cincinnati Law Review


The Family Medical Leave Act (“FMLA” or “the Act”) entitles employees to twelve weeks of unpaid leave to address their personal medical issues or medical issues of immediate family members.[1] The FMLA prohibits employers from interfering with an employee’s right to take this leave or from retaliating against the employee for taking this leave.[2] What constitutes “retaliation” has been the subject of disagreement among several circuit courts. Specifically, the timeframe for when retaliation may occur is at issue. The Eleventh Circuit used an employee-friendly view of retaliation because it provided a longer timeframe for when retaliation may occur.[3] The Eighth Circuit’s view is more employer-friendly because it narrowed the timeframe for retaliation claims.[4] The Eleventh Circuit’s view better fulfills the intent of the Family Medical Leave Act and fits well within the boundary of legal interpretation.

The Family Medical Leave Act and Judicial Background

The FMLA was passed in 1993 as a response to changing family norms and a recognition that employers were not adequately addressing these norms.[5] Specifically, the FMLA states that its purpose is to “balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity” and “entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.”[6] The FMLA entitled employees to 12 weeks of unpaid medical leave and mandated job security.[7]

The FMLA prohibited retaliation against an employee who exercised his or her rights under the Act—namely, an employer could not fire an employee for taking FMLA approved medical leave.[8] However, proving retaliation is difficult due to a dearth of non-circumstantial evidence.[9] Non-circumstantial evidence is evidence which can be directly supported by fact and does not require inference on the part of a judge or a jury.

To accommodate plaintiffs’ difficulty in establishing a case against an employer based on circumstantial evidence, courts adopted the prima facie Title VII framework from the Supreme Court ruling in McDonnell Douglas Corp. v. Green.[10],[11] The employee must establish “(1) [the employee] engaged in statutorily protected activity, (2) [the employee] suffered an adverse employment decision, and (3) the decision was causally related to the protected activity.” [12] If these elements were met, the burden would shift to employer to show the employee was fired for a legitimate business purpose.[13] Finally, if the employer met its burden, the employee must demonstrate the legitimate purpose was pretext for an illicit action.[14]

The circuit splits centers around the third element of the McDonnell Douglas framework. Both the Eleventh and Eighth circuits agree if an employee is fired soon after the event which serves as a benchmark for retaliation (the “Event”), this is an indication of a causal connection (the courts refer to this nearness to the Event as “temporal proximity”[15]).[16]

The Issue

The primary issue is determining the date for the temporal proximity element. Some cases have found that the day the FMLA leave begins is the proper date, while others have found that the day the FMLA leave ends is the proper date.[17] If the end-date is used, the employee’s firing will likely occur much closer to the Event and temporal proximity will be easier to show, strengthening the employee’s case. If the begin-date is used, the employee will likely be terminated far removed from the Event and will have trouble proving causation and establishing a case. The Eleventh Circuit favors the end-date[18]; the Eighth Circuit favors the begin-date.[19]

In Jones v. Gulf Coat Health Care, the Eleventh Circuit stated “temporal proximity, for the purpose of establishing the causation prong of a prima facie case of FMLA retaliation, should be measured from the last day of an employee’s FMLA leave until the adverse employment action at issue occurs.”[20] The court reasoned that to hold otherwise would violate the policy of the FMLA and unduly disadvantage employees who must take the full 12 week amount.[21] The court noted if an employee were to take the full amount of FMLA leave, he or she would be well removed from the begin-date at the time of termination and temporal proximity would not be present, even if there was a clear causal relationship.[22] The Eleventh Circuit also noted that the Fifth and Sixth Circuits had issued similar decisions.[23] The Eleventh Circuit concluded that temporal proximity should be determined from the end-date.

The Eighth Circuit reached a contrary conclusion in Sisk v. Picture People. The court stated  “this court looks to the date an employer knew of an employee’s use (or planned use) of FMLA leave, not the date it ended.”[24] The Court appeared reluctant to allow retaliation to be identified more than two months after the employee begins their leave.[25] Such an extended lapse of time between when retaliation may occur and when an employee exits the work place (nearly three months, if the full leave is used) diminishes the causal connection between the potential retaliation and the Event.[26] The court stated, “more than two months is too long to support a finding of causation without something more,” indicating an unwillingness to allow a broad view of temporal proximity that may further expose employers to liability.[27] Therefore, the Eighth Circuit ruled temporal proximity will be determined by the begin-date of the FMLA leave.[28]

The Eleventh Circuit Approach is Correct

The Eleventh Circuit correctly defined the end-date as the date by which to determine temporal proximity. To rule otherwise would go against the purpose of the FMLA and provide a loophole through which employers could retaliate against employees without consequence.

The FMLA was established to “entitle employees to take reasonable leave for medical reasons.”[29] Congress wanted to ensure that employees could not be fired for missing work for twelve weeks due to a medical necessity. Congress wished to ensure that an absence due to a medical emergency was not deemed improper until after twelve weeks. To begin the measure of temporal proximity from the beginning of the leave would allow employers to impose absence consequences before the twelve week entitled leave ends. This directly violates the spirit of the Act, if not its verbiage. It is not a legally proper interpretation to allow the employee to be penalized at the initiation of his or her leave—the Act was designed to prevent this very thing. For this reason, the Eleventh Circuit’s argument is legally proper.

Opponents may argue that because the FMLA does not specifically provide a timeline for retaliation, courts should be confined to the plain language of the FMLA. This ignores that all the FMLA provides is “retaliation.”[30] To retaliate is defined as “to get revenge.”[31] The definition section of the FMLA does not define “retaliate”—this dictionary definition is what courts may look to in determining retaliation.  The courts therefore appear to be granted broad discretion in determining when an employer has acted in a retaliatory manner. This discretion has manifested itself in using the McDonnell Douglas framework. This demonstrates that the determination of what is “retaliatory” is defined by common-law—not the statute. Therefore, the Eleventh Circuit is well within its propriety in interpreting temporal proximity broadly.

Further, if the begin-date is used as the measure for temporal proximity, employers will have unreasonably strong cases against employees who take the full leave amount. The begin-date measurement would allow employers to be nearly three months removed from the Event their retaliation would be measured against. Essentially, the begin-date approach would allow many employers to claim that no retaliation occurred because too much time had elapsed. This ignores the fact that the employer could have planned for termination from the first day of FMLA leave, but simply delayed the action until the employee returned from leave. Waiting and then terminating an employee for exercising a right fits the definition of “retaliation” perfectly. For this reason, the Eighth Circuit’s use of the begin-date approach is improper and the Eleventh Circuit’s end-date approach is correct.

Consider the following example. Employee A suffers a stroke and informs Employer B that he will need to take FMLA leave for 12 weeks to recover. B grants the leave, but concludes that 12 weeks is too long an absence for any worker to take from work and remain employed—he decides as soon as he grants A’s FMLA leave that he will terminate A on A’s return to work. 12 weeks later, A returns to work fully recovered and ready to resume his job duties. He is promptly fired by B.

Under the begin-date approach, Employer B’s case would be strengthened because he waited until the FMLA leave had expired before he fired Employee A. In a sense, Employee A was punished for suffering a stroke—the exact policy the FMLA was initiated to prevent.

Finally, the end-date approach does not ensure the employers liability—it only allows the establishment of a prima facie case easier for the employee. The employer has a significant opportunity to defeat the claim following the prima facie case. Indeed, if the employer can demonstrate that the employer was terminated for an appropriate, non-FMLA related matter, the employer will prevail. The McDonnell Douglas framework and temporal proximity do not determine a case—they only determine where the burden of evidence lies. To grant employers an even stronger hand is unnecessary.


Courts should follow the Eleventh Circuit’s end-date approach in determining temporal proximity for the purposes of the FMLA. To do otherwise violates the spirit of the FMLA and provides employers a cover for illicit termination of employees. The Eleventh Circuit’s end-date approach to temporal proximity under the FMLA is the proper one.

[1]FMLA (Family & Medical Leave), United States Department of Labor, (last visited Sep 22, 2017).

[2] Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1267 (11th Cir. 2017)

[3] Jones at 1272

[4] Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)

[5] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7

[6] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7

[7] FMLA (Family & Medical Leave), United States Department of Labor, (last visited Sep 22, 2017).

[8] 29 C.F.R. § 825.220(c)

[9] See Jones at 1270.

[10] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)

[11] Using this framework in the FMLA has its critiques. See Chelsey Jonason, Keeping Mothers in the Workplace: Shifting from McDonnell Douglas to Protect Employees Who Use FMLA Leave, However, even these critiques acknowledge the wide use of the test in the courts. See id. at 439.

[12] Jones at 1271 (quoting Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010))

[13] Id. at 1271

[14] Id.

[15] Jones at 1272; Sisk at 900.

[16] Id.

[17] See, e.g., Jones v. Gulf Coast Health Care of Del., LLC, 854 F.3d 1261, 1272 (11th Cir. 2017); Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)

[18] Jones at 1272

[19] Sisk at 900

[20] Jones at 1272.

[21] Id.

[22] Id. at 1273.

[23] Id.

[24] Sisk at 900.

[25] Id. at 901.

[26] See, id..

[27] Id.

[28] Id. at 900.

[29] FAMILY AND MEDICAL LEAVE ACT OF 1993, 1993 Enacted H.R. 1, 103 Enacted H.R. 1, 107 Stat. 6, 29-7

[30] 29 C.F.R. § 825.220(c)

[31] Retaliate, Merriam-Webster Online Dictionary,


Next on the Stand, Alexa: The Constitutionality of Using Smart Devices in Court

John Bernans, Associate Member, University of Cincinnati Law Review

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.”[1] In recent years, “smart technology” and advances in artificial intelligence have cast shadows on the balance between privacy and security. An Arkansas murder investigation recently brought this issue to the forefront. James Andrew Bates was accused of killing his friend Victor Collins.[2] Bates invited Collins over for a night of football and drinking and found Collins dead the following morning. Prosecutors requested the recordings from Bates’ “Amazon Echo.” The smart device has the ability to order goods, play music, and send messages by responding to its owner’s verbal commands. Investigators believed evidence from what had unfolded that night could be found within the recorded files of the device. This case is the first of its kind. Looking at Fourth Amendment jurisprudence, law enforcement cannot take files off these smart devices without a warrant. Any warrantless search or forced removal of information would violate a citizen’s reasonable expectations of privacy under the Fourth Amendment.

The Foundation of the Fourth Amendment’s Search & Seizure Jurisprudence

When an individual has a subjective expectation of privacy and society is prepared to recognize this expectation as “reasonable,” the Supreme Court has held any search that violates this expectation is a violation of the Fourth Amendment.[3] Katz v. United States was the first case to hold that oral statements were subject to the Fourth Amendment’s search and seizure protections.[4] In Katz, the defendant was indicted on federal charges for transmitting betting information by telephone from Los Angeles to Miami and Boston.[5] During the investigation, the prosecution recorded his phone conversations by placing a wiretap device on the outside of a phone booth.[6] The Supreme Court ultimately held that the Fourth Amendment protects people rather than places.[7] The Court stated “[w]hat a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”[8] In extending the Fourth Amendment to oral statements, the Supreme Court used a two-prong test.[9] Justice Harlan articulated an individual’s actions should be protected “when a person has exhibited an actual (subjective) expectation of privacy, and the expectation is one that society is prepared to accept as reasonable.”[10]

The Court has since held that there are limits to an individual’s reasonable expectation of privacy.[11] In Smith v. Maryland, the Court held that a pen register that was installed on an individual’s phone did not violate the Fourth Amendment.[12] The Court permitted the installation of the pen register because the device (1) did not acquire the contents of the communication; (2) only revealed data already known to be public; and (3) the individual voluntarily signed up with the phone company.[13] Together, the Katz and Smith cases can be read to hold that generally, when an individual maintains a subjective expectation of privacy that society deems reasonable, the Fourth Amendment will protect oral statements.

An Age of New Technology

“It would be foolish to contend the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”[14] The Court has held that “to withdraw protection of this minimum expectation [of privacy] would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.”[15] In Kyllo v. United States, police used thermal imaging technology to detect heat emitting from a suspected marijuana greenhouse.[16] The Supreme Court held that the use of the technology without a warrant constituted an unlawful search and deemed it unconstitutional.[17] It reasoned that because the technology revealed intimate details of the home, using the technology without a warrant intruded on the occupants’ reasonable expectation of privacy.[18]  The Supreme Court applied a similar analysis to an individuals’ cellphone.[19] In Riley v. California, law enforcement pulled over the petitioner for expired tags and arrested him for driving under a suspended license.[20] During a routine search of his vehicle, police found his cell phone and searched the device without a warrant.[21] Law enforcement found picture and text message evidence that implicated the petitioner in an earlier gang-related shooting.[22] The Court reasoned that the search was unreasonable because the phone posed no threat to officer safety and was in no danger of destruction after it was confiscated.[23] The Court held “modern [technology], as a category, implicate privacy concerns far beyond those implicated by a search of a cigarette pack, a wallet, or a purse.”[24] “With that [technologies] contain and all they may reveal, [devices] hold for many Americans ‘the privacies of life.’”[25] Due to the intimate information contained in “smart devices,” the Supreme Court held that without a warrant, searches of these cell phones are unconstitutional.[26]

The Balance Between Privacy and Security

Applying Fourth Amendment jurisprudence, law enforcement cannot search “smart devices” that are discovered incident to an arrest without first obtaining a specific warrant for that device. In the balance between personal privacy and community security, the Fourth Amendment leans towards privacy. The Katz test laid down framework that can be directly applied to the search of a “smart device” like an Amazon Echo, Google Home, or Amazon Alexa. The first prong mandates a person must have an actual, subjective expectation of privacy.[27] When a customer buys a smart device, they do not expect the information that they put on the device to go public. Everything from personal communications, bank statements, and intimate thoughts can be found on these devices. An individual would not put such sensitive information on a device if they believed that law enforcement could immediately search it without a warrant. This expectation of privacy is one that society is prepared to recognize as “reasonable.” Due to the pervasive nature of this technology, the majority of the nation can recognize the importance of this expectation. As the Supreme Court estimated in Riley, approximately ninety-percent of citizens have some type of cell phone or technological device.[28]

The reasoning of Smith and the disclosure of information to your phone company could challenge this argument. The case of the Arkansas murder can be distinguished from Smith. In Smith, the Court ruled there was no reasonable expectation of privacy because the petitioner knew or should have known that his data would be disclosed to the phone company.[29] However, the law enforcement action in Smith was upheld because a pen register did not reveal the content of communication.[30] Customers recognize phone companies have access to what numbers they dial but they do not expect the nature of their calls and details of such to be saved by the phone company and subsequently turned over to police. Secondly, the data that could be revealed on the smart devices are intimate details that are not already known to the public. Lastly, while it could be argued that the customer voluntarily purchased the device, they did not sign up for the possibility that their personal and intimate information to be made public or available to law enforcement. Smith and the Arkansas case can be distinguished because phone numbers and individual dials are far less personal than the content and nature of one’s calls and personal information.

Using the reasoning of Katz and Smith, the Supreme Court has held that due to the nature of the information found on smart devices and the potential for its exposure, a warrantless search of such a device is unconstitutional. In the Kyllo case, the government argued that a search was constitutional because it did not “detect private activities occurring in private areas.”[31] These devices hold some of the most personal and intimate details of a person’s life that occur in private areas. An Amazon Echo has the potential to hold someone’s address, bank statements, prescriptions, alcohol or drug abuse information, political agendas, romantic details, and religious beliefs.[32] The fact that technology now allows an individual to carry such information in their hand does not make the information less worthy of the protection established by the Fourth Amendment. Due to the sensitive nature of the information contained in these devices and the susceptibility for abuse, the Court has consistently sent the same message when it comes to searching technological devices – in addition to a warrant required to search a home, a separate warrant would be needed in order to search a smart device.[33]


The Supreme Court established when an individual has a reasonable expectation of privacy and it is an expectation that society is ready to accept, a warrantless search of a device is unconstitutional. When analyzing the search of a smart device, an individual expects that their intimate details will not be exposed when buying such a device. Due to the pervasive nature of phones in society, it is an expectation that society is ready to accept. The holding in Smith does not apply to smart devices due to the type of information that is being exposed. Furthermore, due to the nature and details that could be exposed by such a search, the Supreme Court would most likely hold a warrant is needed. Therefore, if the search of a smart device case came before the Court, they would rule that that a warrant is needed even if the device is discovered incident to an arrest.

[1] U.S. Const. Amend. IV

[2] Eliot C. McLaughlin, Suspects Oks Amazon to hand over Echo recordings in murder case, 2017,

[3] Katz v. United States, 88 S.Ct. 507, 516 (1967)

[4] Id. at 512

[5] Id. at 509

[6] Id.

[7] Id. at 511

[8] Id.

[9] Id. at 515

[10] Id. at 516

[11] See generally Smith v. Maryland, 99 S.Ct 2577 (1979)

[12] Id. at 2581

[13] Id.

[14] Kyllo v. United States, 121 S.Ct. 2038, 2043 (2001)

[15] Id. at 2042

[16] Id. at 2040

[17] Id. at 2046

[18] Id. at 2043

[19] Riley v. California, 134 S.Ct. 2473, 2479 (2014)

[20] Id. at 2480

[21] Id. at 2481

[22] Id.

[23] Id. at 2486

[24] Id. 2488-89

[25] Id. at 2494-2495

[26] Id. at 2495

[27] Id.

[28] Riley, 134 S.Ct. at 2479

[29] Smith, 99 S.Ct. at 2581

[30] Id.

[31] Kyllo, 121 S.Ct. at 2045

[32] Riley, 134 S.Ct. at 2490

[33] Id. at 2495

The Boundaries of the Second Amendment

Amona Al-Refaei, University of Cincinnati Law Review, Associate Member

In 1791, the Second Amendment provided citizens with the right to keep and bear arms, specifying that the right shall not be infringed.[1] Despite this long history, the Supreme Court’s “first in depth examination of the Second Amendment is younger than the first iPhone.”[2] In 2008, the Supreme Court struck down an ordinance that generally prohibited the possession of handguns.[3]  In  District of Columbia v. Heller, an ordinance required residents to keep their lawfully owned firearms “unloaded and dissembled or bound by a trigger lock or similar device” unless the guns are in a place of business or are being used for lawful recreational activities.[4] The Court held (1) the Second Amendment protects an individual right to possess a firearm unconnected to serving a militia;[5] (2) the central component of the right itself was self-defense;[6] and (3) the Second Amendment provided an individual right for responsible citizens to use arms in defense of hearth and home.[7] However, the Court noted, “nothing in our opinion should be taken to cast doubt on the longstanding prohibitions of the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[8]

Following the Court’s opinion in Heller, the District of Colombia created a new gun regulation. This new gun regulation was recently struck down in Wrenn v. District of Columbia, where the court held that the right to carry a concealed weapon is a “core” right protected by the Second Amendment.[9] However, in Kachalsky v. Cty. Of Westchester, the Second Circuit held a New York regulation limiting handgun possession to those with a special need for self-protection was permissible under the Second Amendment.[10] The D.C. Circuit reached an incorrect decision in Kachalsky because the court extended the Second Amendment protection beyond that provided in Heller.

Wrenn v. District of Columbia

In Wrenn, the gun regulation limited licenses to carry concealed handguns to those showing a “good reason to fear injury to [their] person or property” or “any other proper reason for carrying a pistol.”[11] To receive a license based on a “good reason to fear injury,” applicants had to show a “special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life.”[12] Moreover, the regulations stated living or working “in a high crime area shall not by itself establish a good reason” to carry.[13]  This regulation was the District of Columbia’s third major attempt in forty years to use gun regulations to balance public safety and the Second Amendment.[14]

The D.C. Circuit stated Heller revealed some absolute barriers created by the Second Amendment that no gun law may breach.[15] Because the Second Amendment is a fundamental right, the court needed to determine whether a gun law imposes “substantially” on the Second Amendment’s core.[16] The court determined the core or central component of the Second Amendment right to keep and bear arms protects individual self-defense by responsible citizens.[17] However, the court in Wrenn stated this does not mean home defense is the only right at the amendment’s core.[18] The Second Amendment’s core includes a responsible citizens’ right to carry common firearms for self-defense beyond the home.[19] The court concluded that the individual right to carry firearms beyond the home for self-defense falls within the core of the Second Amendment’s protections.[20]

Kachalsky v. Count of Westchester

The Second Circuit upheld the New York handgun licensing regulation, which did not ban handguns but required individuals to have an actual reason to carry the weapon.[21] Under New York’s regulation of firearms, individuals were required to show proper cause for the issuance of the license to carry.[22] Proper cause includes carrying a handgun for target practice, hunting or self-defense.[23] To obtain a license without any restrictions, individuals were required to demonstrate a special need for self-protection distinguishable from that of the general community.[24] Every application triggered a local investigation by police into the applicant’s mental health history, criminal history, and moral character.[25]

The Second Circuit stated Heller was never meant to clarify the entire field of Second Amendment jurisprudence.[26] The Second Circuit stated, “Second Amendment guarantees are at their zenith within the home.”[27] But, the court noted Heller did not explain the scope of the right beyond the home or the standards for determining when and how the right can be regulated.[28] The court observed that the states often disagreed as to the scope of the right to bear arms.[29] The court held that the good-reason law did not operate as a complete ban on the possession of handguns in public.[30] It concluded that the good-reason law fell outside the core Second Amendment protections identified in Heller because the regulation in New York affected the ability to carry handguns in public and the D.C. regulation ban applied in the home.[31]

The Second Amendment’s Limits

The D.C. Circuit was incorrect to hold that good-reason laws should be treated as a complete prohibition on the Second Amendment right to bear arms.[32] The court also should not have stated the regulation in Wrenn was similar to the ban disputed in Heller, which required residents to keep their firearms either unloaded or bound by a trigger lock at home,[33] because the regulation in Wrenn applied to carrying a concealed firearm. The Wrenn court argued the Second Circuit reached an incorrect result because it failed to use the historical method, as the Supreme Court required in Heller, to determine the Amendment’s core and boundaries.[34] The Second Circuit correctly noted the history of the Second Amendment does not provide clarity because the history indicates the states have disagreed about regulating firearms since the Amendment was ratified.[35]

Rather than striking down the regulation without applying any tiers of scrutiny, the court in Wrenn should have applied intermediate scrutiny to determine whether the regulation violated the Second Amendment. In Heller, the Court stated the “core” protection of the Second Amendment is the “right of law-abiding responsible citizens to use arms in defense of hearth and home.”[36] Applying less than strict scrutiny makes sense when the regulation does not burden the “core” of the right. Similar logic is used for analyzing other enumerated rights. For example, when analyzing First Amendment claims, regulations for commercial speech are subject to intermediate scrutiny,[37] but content-based restrictions on noncommercial speech are subject to strict scrutiny.[38] So long as challenged gun regulations further an important government interest, such as protecting the public, the regulations should be upheld by the judicial branch.

When crafting good-reason laws, the government’s primary purpose is to prevent crime and increase public safety. The fundamental right to keep and bear arms is at its height when in individual’s homes. However, the right is not without limits outside the home. So long as the regulation passes intermediate scrutiny, it should be upheld. Additionally, good-reason laws are not outright bans on possession or use of firearms. These laws seek to reduce violent crimes, and citizens with a special need for self-defense are still permitted to carry firearms. While some citizens may not be permitted to carry firearms under good-reason laws, the potential to decrease violent crimes is enough to uphold a good-reason law.

The Supreme Court has a long history of striking down legislation that extends into the home.[39] For example, in Lawrence v. Texas, the Court held the state’s efforts to regulate private sexual conduct between consenting adults is not permitted when it intrudes into the home, because the state is not omnipresent in the home.[40] Moreover, the Supreme Court’s opinion in Heller did not provide a basis for applying the Second Amendment protections equally in the home and in public. Instead, the Supreme Court noted there is a heightened right for individuals to protect their homes.[41] Additionally, the Supreme Court has approved bans on some types of guns so long as guns that are most useful for home defense remain accessible.[42]

Similarly, other fundamental rights are subject to limitations under some circumstances. For example, the freedom of speech is significantly more limited when it is categorized as commercial speech than when the speech takes place in other settings, particularly in the home. Similarly, the Second Amendment protection may apply in the home, but the legislature should be permitted to establish limits on this right in the public so long as the regulations would satisfy intermediate scrutiny.  However, the government’s interest in public safety and crime prevention cannot be used to create a prohibition of firearm possession.


Legislatures concerned with risks to public safety may be tempted to regulate the possession or carrying of firearms. The Supreme Court has recognized and protected the Second Amendment right to possession in the home. However, the right is still subject to some limitations, including banning possession for felons and mentally ill individuals. The D.C. Circuit was incorrect by failing to apply any of the tiers of scrutiny after finding a good-reason law created a total ban on the right to bear arms. Instead, courts should follow the Second Circuit and determine whether the legislation is substantially related to the achievement of an important governmental interest.

[1] USCS Const. Amend. 2

[2] Wrenn v. District of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017).

[3] District of Columbia v. Heller, 554 U.S. 570, 574, 128 S. Ct. 2783, 2788 (2008).

[4] Id. at 575.

[5] Id. at 577.

[6] Id.

[7] Id. at 635.

[8] Id. at 626-27.

[9] Wrenn, 864 F.3d at 657.

[10] Kachalsky v. Cty. of Westchester, 701 F.3d 81, 83 (2d Cir. 2012).

[11] Wrenn, 864 F.3d at 655.

[12] Id.

[13] Id. at 656.

[14] Id.

[15] Id. at 655.

[16] Id. at 657.

[17] Id. at 657.

[18] Id. at 657.

[19] Id.

[20] Id. at 661.

[21] Kachalsky, 701 F.3d at 84.

[22] Id. at 85.

[23] Id. at 86.

[24] Id.

[25] Id. at 87.

[26] Id. at 88.

[27] Id. at 89.

[28] Id.

[29] Id. at 91.

[30] Id. at 91.

[31] Id. at 94.

[32] Wrenn, 864 F.3d at 665.

[33] Heller, 554 U.S. at 574.

[34] Wrenn, 864 F.3d at 661.

[35] Kachalsky, 701 F.3d at 91. “Compare Bliss v. Commonwealth, 12 Ky. 90, 1822 WL 1085, at*3 (1822) (concluding that a prohibition on carrying concealed weapons was unconstitutional), with Aymette v. State, 21 Tenn. 154, 1840 WL 1554, at **4-6 (1840) (citing to Bliss but reaching the opposite conclusion).”

[36] Heller, 554 U.S. at 634-45.

[37] See Florida Bar v. Went for It, Inc., 515 U.S. 618, 624-25 (1995).

[38] See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

[39] See Lawrence v. Texas, 539 U.S. 558 (2003).

[40] See Id. at 562. “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.”

[41] Id. at 628.

[42] Heller, 554 U.S. at 627.

Political Questions and Few Answers

Patrick Reagan, Associate Member, University of Cincinnati Law Review

No constitutional law class is complete without reading and discussing Baker v. Carr, where the Supreme Court held that a claim that Tennessee’s state legislative district map violated the Equal Protection Clause should proceed.[1] The Court also held that the claim did not present a non-justiciable political question, and Justice Brennan articulated six core principles[3] that have since been used in evaluating whether a claim presents a political question.[4] One of these principles is “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”[5] This factor has proved to be fortuitous in the decades since Baker was decided. Two cases that illustrate that “potentiality of embarrassment” are Citizens United v. Federal Election Commission and Roe v. Wade.[6] Legislative and political backlash from these and other cases has led to an environment in which ordinary federal judicial nominations have become hyper-politicized. A prime example of this is the Senate holding the late Justice Antonin Scalia’s Supreme Court seat open for an entire year.[7] Forcing the judiciary to conform to the political ideals of the legislature severely impairs the Supreme Court’s ability to perform several of its essential functions, which is not good for anyone.

      Roe v. Wade and the Ensuing Controversy

Perhaps no other Supreme Court ruling has engendered so much controversy as Roe v. Wade, which legalized abortion in the United It has played a prominent role in both presidential campaigns and Supreme Court nominations[10] and pitted the Court against state legislatures who have tried many times to restrict abortion access and abrogate Roe.[11] These are  “multifarious pronouncements by various departments on one question,” about which Justice Brennan cautioned about in his Baker v. Carr opinion.[12] The fight between the Supreme Court and legislators over the question of abortion is far from over. That much was clear during Whole Woman’s Health v. Hellerstedt, which dealt with abortion restrictions passed in Texas.[13]

While Roe resolved a constitutional issue and prevented legislators from having to make difficult value judgments before casting their vote, it sapped much judicial capital from the Court and took it in a direction that could not have been foreseen by Justice Blackmun. It inspired what is referred to as “Roe rage,” which is a social movement that uses Roe as a wedge to motivate people to support its traditional, socially conservative view of America.[14] Those who have succumbed to “Roe rage” and others who oppose it generally have woven it into a greater narrative about the role of the judiciary. It is common to hear Roe referred to as a prime example of “judicial activism” or “legalizing the slaughter of innocent unborn lives,”[15] and the case is still discussed by scholars from both sides of the ideological aisle.[16]

Roe has also changed the environment for judicial nominations. A perfect example of this is the nomination of Harriet Miers, President George W. Bush’s former White House counselor, to the Supreme Court to fill the seat vacated by Justice Sandra Day O’Connor.[17]  Her nomination was withdrawn just 24 days after it was announced.[18] While her nomination was pending, Senator Sam Brownback of Kansas stated there was a “good chance” he would vote against her nomination if she stated that Roe is the law of the land.[19]

Citizens United and its Ensuing Controversy

What Roe is to the right, Citizens United v. Federal Election Commission is to the left. The conservative non-profit Citizens United (a group led by President Trump’s deputy campaign manager David Bossie) wanted to air a film critical of Hillary Clinton and advertise it on television shortly before the 2008 Democratic presidential primary in violation of federal election law.[20] The Court in Citizens United (1) removed limits on corporate spending in elections; (2) applied strict scrutiny to political speech restrictions; and (3) affirmed under the First Amendment the right of corporations to engage in political activities. It also opened a Pandora’s box of criticism.

In his 2010 State of the Union address, President Obama took a swipe at the Court. He stated that the ruling “reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”[22] He further urged Congress “to pass a bill that helps correct some of these problems.”[23] By “problems,” President Obama was referring to the Citizens United ruling.[24]

It was not just President Obama who took umbrage with the ruling. Former Judge Richard Posner of the Seventh Circuit said in a speech at the University of Chicago Law School function that “[o]ur political system is pervasively corrupt due to our Supreme Court taking away campaign-contribution restrictions on the basis of the First Amendment.”[25] Similarly, Federal Election Commission member Ellen Weintraub wrote an editorial in The New York Times criticizing the decision.[26] Citizens United also impacted the 2016 Democratic presidential primary contest between Sen. Bernie Sanders (I-VT) and Sec. Hillary Clinton, where both candidates stated that overruling the decision would be their litmus test for any Supreme Court nominee they would pick while president.[27]

Perhaps most intriguing is that Citizens United has sparked a grassroots movement called Move to Amend, which describes itself as a “coalition of hundreds of organizations and hundreds of thousands of individuals committed to social and economic justice, ending corporate rule, and building a vibrant democracy that is genuinely accountable to the people, not corporate interests.”[28] The group calls for passage of a twenty-eighth amendment to the Constitution, which would: (1) strip corporations and other non-human entities of any rights under the Constitution; and (2) require federal, state, and local entities to “regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures.”[29] Move to Amend lists hundreds of organizations as endorsers of the amendment, including the Sierra Club, North Carolina AFL-CIO, Minnesota AFL-CIO, and the Green Party of Hamilton County, Ohio.[30]

Future Considerations

Newton’s third law of physics holds that for every action, there is an equal and opposite reaction. This is similar to Justice Brennan’s sixth consideration in Baker v. Carr, that courts should pay attention to the “potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Unfortunately, the Court’s actions in Baker and Citizens United have not engendered an equal or opposite reaction. Politicians have perverted normal judicial criticism and used it for their advantage. Such criticism has made it more difficult for litigants who are arguing deep, controversial issues to get a clear answer that would clarify what is at stake for them and the country because the Court must now always look behind its back when taking controversial cases.

This backlash has also clogged and stalled the judicial nomination and confirmation process. While it is important to identify a nominee’s legal and judicial philosophy to ensure that qualified people are on the bench, some politicians have taken it too far. Senators frequently veer into tangents when questioning nominees’ backgrounds.[32] They ask questions about cases like Roe and Citizens United that are meant to appease their voter base in anticipation of their reelection campaigns.

That does not mean that the Court decided Roe or Citizens United incorrectly. The law should not bend to political pressure; and the moment it does, the door is opened down a slippery path to a judiciary that more resembles a series of “kangaroo courts” rather than a serious, removed venue for people to receive redress for wrongs committed against them. If the Court were to shy away from taking a case every time they feared an errant tweet or floor speech from an enraged member of Congress, the justices might as well just pack-up and close shop. Rather, the Court should be pragmatic and realize that it has a limited amount of judicial Big cases require thousands of hours of work, careful deliberation, and will have indelible effects on the country and the law—and that’s ok. It is likely what the Framers meant when they entrusted the Supreme Court with its authority back in 1789. Unfortunately, the likely reality is that this destructive cycle will not stop any time soon.


Instead of spouting poll-tested platitudes criticizing Roe, Citizens United, and the like that rake in donations and stir up support, politicians should have a little more deference and respect for the rule of law. Today’s contention over the Court’s role and fights over judicial nominees is what Justice Brennan in Baker v. Carr predicted would happen when the Court wades into controversial cases, but that does not mean politicians have to fuel the fire. This country is governed by a document that is a product of the Enlightenment that has been used to guarantee substantive rights since the inception of judicial review by the Supreme Court. The Supreme Court needs the flexibility to wade into difficult issues that have deep and lasting effects on society, otherwise Baker v. Carr will become an “ad hoc litmus test” that neuters judicial review.[33]

[1] Baker v. Carr, 369 U.S. 186, 237 (1962).

[2] Id. (“We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.”).

[3] Id. at 217 (“[p]rominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”). Thus, if a claim presents a political question, then it is deemed non-justiciable and may not be adjudicated by a court.

[4] See, e.g., El-Shifa Pharmaceutical Industries Co. v. U.S., 607 F.3d 836, 842 (D.C. Cir. 2010) (dismissing Federal Tort Claims Act lawsuit brought by a Sudanese pharmaceutical company after a cruise missile destroyed its plant; the court wrote “[w]e have consistently held, however, that courts are not a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security. . . . The political question doctrine bars our review of claims that, regardless of how they are styled, call into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion.”).

[5] Baker, 369 U.S. at 217.

[6] See Roe v. Wade, 410 U.S. 113 (1973); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[7] Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person’, NPR (March 16, 2016), The article quotes Senate Judiciary Committee Chairman Charles Grassley (R-IA), who said the following after President Obama nominated Judge Merrick Garland to fill the Supreme Court seat vacated by the death of the late Justice Antonin Scalia: “Do we want a court that interprets the law, or do we want a court that acts as an unelected super legislature? This year is a tremendous opportunity for our country to have a sincere and honest debate about the role of the Supreme Court in our constitutional system of government.”

[8] See, e.g., Eliza Collins, Sanders takes dead aim on Citizens United ruling, Politico (May 10, 2015) (Sen. Sanders states his litmus test for any Supreme Court nominee would be whether they will overturn Citizens United v. Federal Election Commission); Jonathan Easley, Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nominees, The Hill (Feb. 3, 2016),; RNC Communications, Republican Platform 2016, (July 18, 2016),[1]-ben_1468872234.pdf, at 10 (“Only a Republican president will appoint judges who respect the rule of law expressed within the Constitution and Declaration of Independence, including the inalienable right to life and the laws of nature and nature’s God, as did the late Justice Antonin Scalia.”).

[9] Roe, 410 U.S. at 113.

[10] Jerome A. Barron, C. Thomas Dienes, Wayne McCormack, & Martin Redish, Constitutional Law: Principles and Policy § 6.02, p. 570 (8th ed. 2012).

[11] See, e.g., Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[12] Baker, 369 U.S. at 217.

[13] See, e.g., Whole Woman’s Health, 136 S. Ct.

[14] Id. at 572 (quoting Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism in Backlash, 42 Yale L.J. 373, 377 (2007)).

[15] See, e.g., Evan Puschak, Rubio trashes Roe v. Wade as ‘blatant’ judicial activism, MSNBC (Jan. 22, 2013),

[16] See, e.g., Jack Balkin, Abortion and Original Meaning, 24 Const. Comentary 291 (2007); Philip Heymann & Douglas Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53 B.U. L. Rev. 765 (1973).

[17] Bush picks White House counsel for Supreme Court, CNN (October 4, 2005),

[18] Michael A. Fletcher and Charles Babington, Miers, Under Fire From Right, Withdraws as Nominee, The Washington Post (October 28, 2005),

[19] GOP Senator Concerned About Miers’ Abortion Views, ABC News (Oct. 5, 2005),

[20] Citizens United v. Federal Election Comm’n., 558 U.S. 310, 320-321 (2010).

[21] Id. at 340-65.

[22] Robert Barnes, Reactions split on Obama’s remark, Alito’s response at State of the Union, The Washington Post (January 29, 2010),

[23] Id.

[24] Id.

[25] James Warren, Richard Posner Bashes Supreme Court’s Citizens United Ruling, The Daily Beast (July 14, 2012),

[26] Ellen L. Weintraub, Taking on Citizens United, The New York Times (March 30, 2016),

[27] See, e.g., Eliza Collins, Sanders takes dead aim on Citizens United ruling, supra; Jonathan Easley, Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nominees, supra.

[28] MTA Coalition – Mission, Move to Amend,

[29] Move to Amend’s Proposed 28th Amendment to the Constitution, Move to Amend,

[30] Endorsing Organizations, Move to Amend,

[31] Baker, 369 U.S. at 217.

[32] For example, Justice Samuel Alito faced criticism from senators over his membership in a conservative Princeton alumni group. See David Stout, Alito Sworn In as Justice After 58-42 Vote to Confirm Him, The New York Times (Jan. 31, 2006), This year at an event in New Zealand, Chief Justice John Roberts lamented that Supreme Court nominations have become too politicized, stating “You’re not electing a representative, so you’re not entitled to know what their views on political issues are.” See Chief Justice Roberts: Confirmation process for justices too politicized, Politico (July 26, 2017), In criticizing the Senate’s removal of the filibuster for judicial nominees, Jon Healey of Los Angeles Times wrote “That’s why interest groups push senators to go further, to trying to unearth a judge’s sympathies in the hope of better predicting whether he or she will be an ally on issues they care about. The quality of a judge’s legal reasoning isn’t as important as where the reasoning might lead.” See Jon Healey, Congress didn’t just nuke the filibuster, it permanently politicized the Supreme Court, Los Angeles Times (Apr. 6, 2017),


[33] Davis v. Bandemer, 478 U.S. 109, 126 (1986).