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.

Conclusion

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.

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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.

     Conclusion

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), http://www.npr.org/2016/03/16/470664561/mcconnell-blocking-supreme-court-nomination-about-a-principle-not-a-person. 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), http://thehill.com/blogs/ballot-box/presidential-races/268174-clinton-i-have-a-bunch-of-litmus-tests-for-supreme-court; RNC Communications, Republican Platform 2016, (July 18, 2016), https://prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL[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), http://www.msnbc.com/the-last-word/rubio-trashes-roe-v.

[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), http://www.cnn.com/2005/POLITICS/10/03/scotus.miers/.

[18] Michael A. Fletcher and Charles Babington, Miers, Under Fire From Right, Withdraws as Nominee, The Washington Post (October 28, 2005), http://www.washingtonpost.com/wp-dyn/content/article/2005/10/27/AR2005102700547.html.

[19] GOP Senator Concerned About Miers’ Abortion Views, ABC News (Oct. 5, 2005), http://abcnews.go.com/GMA/SupremeCourt/story?id=1184984.

[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), http://www.washingtonpost.com/wp-dyn/content/article/2010/01/28/AR2010012802893.html.

[23] Id.

[24] Id.

[25] James Warren, Richard Posner Bashes Supreme Court’s Citizens United Ruling, The Daily Beast (July 14, 2012), http://www.thedailybeast.com/richard-posner-bashes-supreme-courts-citizens-united-ruling.

[26] Ellen L. Weintraub, Taking on Citizens United, The New York Times (March 30, 2016), https://www.nytimes.com/2016/03/30/opinion/taking-n-citizens-united.html?mcubz=3.

[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, https://movetoamend.org/about-us.

[29] Move to Amend’s Proposed 28th Amendment to the Constitution, Move to Amend, https://movetoamend.org/wethepeopleamendment.

[30] Endorsing Organizations, Move to Amend, https://movetoamend.org/organizations.

[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), http://www.nytimes.com/2006/01/31/politics/politicsspecial1/alito-is-sworn-in-as-justice-after-5842-vote-to.html. 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), https://www.politico.com/story/2017/07/26/chief-justice-roberts-confirmation-process-for-justices-too-politicized-240979. 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), http://www.latimes.com/opinion/opinion-la/la-ol-nuclear-option-gorsuch-20170406-story.html.

 

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

A Patient’s Unambiguous Right

Alexandra Soisson, Associate Member, University of Cincinnati Law Review

            The now infamous video released in July of 2015 depicting a Planned Parenthood executive discussing prices for fetal tissue stunned viewers and fueled many anti-abortion advocates to call for the defunding and closure of all Planned Parenthood facilities.[1] Today, the consequences of the video release as well as the subsequent debate over the issues involved linger in homes and courtrooms across the country. In particular, the question of whether state and federal funding of Planned Parenthood facilities should continue dominates this debate. The Eighth Circuit addressed this question in the context of Medicaid benefits.[2] Breaking with precedent established by the Fifth, Sixth, Seventh, and Ninth circuits, the Eighth Circuit found that the choice-provider provision of the Medicaid Act does not create a federal right for individuals to enforce payments to specific medical providers, namely Planned Parenthood.[3]

            This ruling resulted from litigation concerning the Arkansas Department of Human Services’ decision to suspend Medicaid payments to Planned Parenthood facilities after the 2015 video was released.[4] The Eighth Circuit held that the Arkansas patients had no private right of action under 42 U.S.C. §1983 guaranteed by the relevant section of the Medicaid Act.[5] However, the Eighth Circuit’s reading of the provision failed to see the unambiguous right conferred in the statute and incorrectly found that Congress did not intend for Medicaid beneficiaries to have a right of action under §1983.

Does v. Gillespie

            Following the release of the 2015 Planned Parenthood video, the Arkansas Department of Human Services terminated its Medicaid provider agreements with Planned Parenthood of Arkansas and Eastern Oklahoma.[6] Three Arkansas Medicaid patients sued the director of the Department of Human Services under 42 U.S.C. §1983 claiming the termination of the contract with Planned Parenthood violated their federal rights guaranteed under §23(A) of the Medicaid Act.[7] The lower courts agreed that the Act provided such a remedy and enjoined the Department from suspending payments to Planned Parenthood facilities.[8] However, the Eighth Circuit Court of Appeals reversed, holding that no such right exists.[9]

            The Eighth Circuit applied a three-part analysis to determine that §23(A) of the Medicaid Act does not unambiguously create an enforceable federal right.[10] First, the court argued that the focus of the Act is “two steps removed” from the interests of the patients who seek the services.[11] Second, the court reasoned that Congress had already plainly conferred another means of enforcing State’s compliance.[12] Finally, the court argued that the aggregate focus of the Act as a whole does not give rise to an individual right.[13] Relying on these three conclusions, the court vacated the injunction enacted by the lower court which prevented the Arkansas Department of Human Services from suspending Medicaid payments to Planned Parenthood.[14] In other words, the court upheld the suspension of payments from Medicaid to Planned Parenthood.

Holdings of the Fifth, Sixth, Seventh, & Ninth Circuits

            Prior to the holding in Does, the Fifth, Sixth, Seventh, and Ninth Circuits examined the same provision of the Act and came to the opposite conclusion.[15] All four earlier rulings applied the same framework and held that §23(A) of the Medicaid Act, or the “freedom-of-choice” provision, did create a private right of action enforceable under §1983.[16] Notably, all five courts, including the Eighth Circuit, relied on Gonzaga University v. Doe, which held that in order to support an action under §1983, a plaintiff must establish that Congress clearly intended to create an enforceable federal right.[17] Interpreting the plain language of the relevant provision, each of the other four circuit courts found that Congress’ intent was clear within the language of the provision.[18] Specifically, those courts relied on the interpretation that §23(A) refers to “any individual eligible for medical assistance.”[19] The Fifth, Sixth, Seventh, and Ninth Circuits all emphasized the use of the word “individual” within the provision coupled with other textual support – including “rights-creating language” within the Act— to support the conclusion that Congress intended to create an enforceable individual right within the Act.[20]

The Intent Is Clear

            The Eighth Circuit offered its three-part analysis to explain why the plaintiffs would not succeed on their §1983 claim. However, each part of the analysis fails to stand up to precedent or reason. First, the court posed that the Act is “two steps removed” from the interests of the patients because it is considered a directive to a federal agency, not a directive to an individual.[21] The court relied on the holding in University Research Association, Inc. v. Coutu, which held that a statute phrased as a directive to a federal agency typically does not confer an enforceable right to an individual.[22] However, a key difference between the statute analyzed in that case and the statute relevant to the case at hand is that the statute in Coutu did not use the word “individual” to describe the protected person, but rather only described “classes of laborers.”[23] This difference in wording is essential to the analysis. The Eighth Circuit noted several times in their opinion that the plaintiff’s claim failed because §23(A) of the Act did not confer an “unambiguous right” to an individual, as required by Gonzaga.[24] However, unlike the statute in Coutu, the Medicaid freedom of choice provision does clearly and unambiguously state that “any individual eligible for medical assistance may obtain such assistance.”[25] Therefore, the ambiguity in the Coutu statute that the court cites is not present in the Medicaid Act; the clear language of the text does unambiguously confer a right to an individual.

            Further, the Freedom of Choice provision uses rights-creating language to indicate Congress’ clear intention to provide rights to individuals under the Medicaid Act. For example, the language of the Act which reads that Medicaid-managed care organizations “…shall not restrict the choices of the qualified person from whom the individual may receive services” creates a clear right for the individual. The use of the word “individual” paired with the rights assured to that individual in the statute, make it clear that congress intended to extend specific rights to individual patients under the Act and thus it is not removed from the interest of those patients.

            Second, the Court reasoned that because Congress created a method for enforcing state compliance through withholding of federal funds, it is reasonable to conclude that Congress did not intend to create another enforceable right for individual patients.[26] Specifically the Eighth Circuit noted concern for potential parallel litigation with inconsistent results.[27] However, the existence of alternative remedies does not serve as a bar to §1983 relief.[28] As noted by the Does dissent, Blessing v. Freestone – which set forth a controlling test for determining whether a statutory provision creates a private right of action enforceable under §1983 – established that the presence of alternative administrative mechanisms to protect the plaintiff’s interests does not prohibit relief based under §1983.[29] The presence of alternative remedies can hardly be considered clear evidence that Congress intended to prevent any other potential remedy, especially when the alternative remedies are for organizations and not for the individuals themselves.  Furthermore, the controlling law specifically surrounding §1983 remedies does not create such a barrier.

            Finally, the plurality in Does posed that because the Medicaid statute has an “aggregate focus” as opposed to an “individual focus,” there is no implied individual right.[30] The court reasoned that the statute has an aggregate focus because the Medicaid Act links federal funding to substantial compliance by providers instead of individual compliance.[31] By categorizing this “focus,” the court explained that because the focus is on the aggregate compliance of the providers and not the individual, the remedy should be sought through the providers and not the individual.[32] In this case, that means the provider who has stopped receiving funding from Medicaid should file an administrative appeal and the individual can be “represented” through that process.[33] In short, the court argued that the individual is “covered” through the provider’s remedy. However, permitting a provider to file an appeal does not provide nearly enough protection for the rights of the patients. As was seen in Does, the provider did not choose to file such an appeal, and therefore, the individual patients were left with no remedy. The argument that because one actor has the ability to seek a remedy, another actor, with no power to influence the first party, is protected by that right cannot hold weight.

Conclusion

            The Medicaid Act was designed to provide medical assistance to a class of citizens often most in need of medical care and without the means to procure it. The rights of those individual patients must be the first priority of the program and Congress’ intent in writing the provisions of the Act should be read in that light. Four circuit courts and several district courts below affirmed the ability of an individual patient to protect his right to choose his healthcare provider. The Eighth Circuit holding fails to interpret the language of the Act in the way that it should be understood: as a voice for the patients. Even using the court’s own “unambiguous intent” standard, it is clear that Congress intended for the rights of the individuals to be protected when they wrote the word “individual” into the free choice provider provision of the statute. The language is not removed from the rights of the individual and the analysis should likewise not be removed from that lens. The Medicaid Act did create an unambiguous federal right for individual patients under §1983 and that right should be upheld.

[1]On July 14, 2015 an anti-abortion group called “The Center For Medical Progress” released a secretly recorded video of Deborah Nucatola, the senior director of medical services at Planned Parenthood, discussing the procurement of fetal tissues when conducting abortions. See Steve Almasy, Planned Parenthood exec, fetal body parts subject of controversial video, CNN.com (July 15, 2015), http://www.cnn.com/2015/07/15/health/planned-parenthood-undercover-video/index.html.

[2] Does v. Gillespie, 867 F.3d 1034, 1037 (8th Cir. 2017).

[3] Id. at 1046.

[4] Id. at 1038.

[5] Id. at 1040; 42 U.S. Code § 1983, Civil action for deprivation of rights: Creates a right of action for any citizen deprived of any rights, privileges, or immunities secured by the Constitution.

 

[6] Does, 867 F.3d at 1037.

[7] Id. at 1038; §23(A) provides that “any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required”

[8] Does, 867 F.3d at 1035.

[9] Id. at 1045.

[10] Id. at 1041.

[11] Id.

[12] Id.; Congress allows for withholding of federal funds as the means of ensuring state compliance.

[13] Does, 867 F.3d at 1042.

[14] Id. at 1045.

[15] Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017); Harris v. Olszewski, 442 F.3d 456, 461-62 (6th Cir. 2006); Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 974-76 (7th Cir. 2012); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 966-67 (9th Cir. 2013).

[16] Does, 867 F.3d at 1050.

[17] 536 U.S. 273, 283 (2002).

[18] Does, 867 F.3d at 1042.

[19] Id. (emphasis added).

[20] Id.; Rights creating language includes language that confers a right to the beneficiaries to sue, etc.

[21] Id. at 1041.

[22] 450 U.S. 754, 756 (1981).

[23] Id. at 757.

[24] Does, 867 F.3d at 1041.

[25] Id. at 1040. (emphasis added).

[26] Id. at 1041.

[27] Id.

[28] Does, 867 F.3d at 1051.

[29] Id. citing 520 U.S. 329, 347 (1997).

[30] Id. at 1041.

[31] Id.

[32] Id.

[33] Does, 867 F.3d at 1038.

The Kids Aren’t Alright: The Risk of Considering a Juvenile’s Prior Arrests in Addition to His Convictions When Deciding to Transfer a Case to Criminal Court

Monica Welker, Associate Member, University of Cincinnati Law Review

            There is a lack of clarity regarding how our most vulnerable citizens—our youth—are tried for criminal acts. Two different juveniles charged with federal crimes could be tried according to two different standards for the same alleged act, depending on where they live. One might be tried in a juvenile court, with a shorter possible sentence, while another might be tried in a criminal court. Consider the following examples:

  1. Ellen is a sixteen-year-old accused of armed bank robbery. She has always been in trouble, and no one is surprised to hear about her arrest. It is the third time she has been arrested. Her first arrest was for drug possession, when police found her with heroine in her high school bathroom. It resulted in a conviction, mandatory treatment, and community service. Her second arrest was for another alleged armed robbery but the victims, an elderly couple, died in a car crash on the way to the police station to identify her. As a result, she was released.
  2. Michael is another sixteen-year-old accused of armed bank robbery. He has been in trouble before but mostly as a result of his association with his older brother and his friends who call themselves a “gang.” He has been arrested for armed robbery and vandalism but has always been released and neither of those cases ever resulted in a trial. In each circumstance, he was in the wrong place at the wrong time when his brother’s gang was breaking the law and did not actively participate in the criminal behavior.

            In federal court, there is no clear guidance on whether Ellen and Michael’s prior arrests that did not result in convictions should be factored into the decision to transfer their cases from juvenile court to criminal court. This lack of guidance violates the constitutional guarantee of due process and protection from discrimination.

BACKGROUND

            In the United States, juveniles who commit criminal acts are tried in juvenile court unless the court determines that the case should be transferred to a criminal (adult) court. When determining whether to transfer a case, 18 U.S.C. § 5032 lays out six factors for a court to consider They are: (1) the age and social background of the juvenile; (2) the nature of the alleged offense; (3) the extent and nature of the juvenile’s prior delinquency record; (4) the juvenile’s present intellectual development and psychological maturity; (5) the nature of past treatment efforts and the juvenile’s response to such efforts; and (6) the availability of programs designed to treat the juvenile’s behavioral problems.”[3]

            Since 1998, there has been a circuit split over whether the plain language meaning of “prior delinquency record,” as found in the third factor, should include prior arrests that did not result in convictions. In July of 1998, the Seventh Circuit handed down its decision in United States v. Wilson, which held that prior arrests should be considered when examining the third factor.[4] Five months later, the Eighth Circuit ruled in United States v. Juvenile LWO that a “prior delinquency record cannot plausibly be interpreted to encompass evidence of conduct that has not been  . . . admitted to be delinquent or criminal.”[5] The split continues through today.[6]

DUE PROCESS IMPLICATIONS

            This unresolved split potentially violates the Fifth Amendment rights of juvenile defendants. In Bolling v. Sharpe, the Supreme Court ruled that “discrimination can be violative of due process.”[7] If the harshness of a juvenile’s sentence can depend on his arrest record instead of his conviction record, he is at a disadvantage when compared to an adult defendant who knows that his sentence will not be colored by arrests that did not result in convictions[8]. Additionally, the lack of a uniform legal standard in federal court can result in juveniles in different circuits being judged by two different standards, another potential due process violation.[9]

CIRCUIT RULING EXPLANATIONS

            This circuit split shows that two courts looking to the plain language of the same statute can interpret it differently. The Seventh Circuit in Wilson pointed out that the statute calls for a review of the delinquency record, which includes arrests.[10] It further argued that if Congress had wanted to exclude arrests, Congress would have written the statute to limit the inquiry to the juvenile’s prior convictions, not the entire record.[11] The Eighth Circuit in LWO likewise defended its ruling on the plain language of the statute but also cited In Re Sealed, a D.C. Circuit case from 1990.[12]

            In Re Sealed interpreted § 5032, but it focused on the second factor to be considered when deciding to transfer a juvenile to a criminal court: the nature of the offense. At issue was a district judge who considered a conspiracy charge that was dropped by the prosecution prior to the transfer hearing.[14] The court ruled that considering the dropped conspiracy charge was a violation of the juvenile’s due process rights.[15]

            When considering a transfer, a judge is required to assume that the juvenile committed the crime which brings him into the court on that day.[16] The reasoning is that if the juvenile is innocent of the accused crime, the criminal trial should be where all evidence of innocence or guilt be weighed.[17] Because the transfer hearing automatically assumes that the juvenile likely committed the crime, the court in Sealed ruled that uncharged criminal acts have no place in the transfer hearing.[18] If the juvenile is innocent of the crime he is charged with, he has an opportunity to clear his name with regard to those charges in the criminal trial. But the juvenile will never have a chance to argue his innocence of crimes which he was arrested for but not ultimately charged with. The D.C. Circuit ruled that if the juvenile’s conspiracy charge was dropped, the judge may not consider the dropped charge when determining the juvenile’s transfer.[20]

            Using this understanding, the Eighth Circuit in LWO wrote that considering arrests without convictions under the “delinquency record” factor did not fit within the plain language of the statute.[21] It found that the phrase “extent and nature of the juvenile’s delinquency record” unambiguously did not include prior arrests without convictions.[22] Therefore, the court left the door open to considering arrests without convictions under some of the other factors.[23] § 5032 explicitly requires judges to make findings with regard to each factor. Therefore, a judge could consider previous arrests without convictions when she considers a juvenile’s psychological maturity or the efficacy of past treatment efforts.[24]

POLICY AIMS OF § 5032

            Because the courts conflict in their interpretation of the plain language found within the statute, one can look to the policy reasons behind the act. The D.C. Circuit in Sealed explored this avenue as well, pointing out that the purpose of §5032 was to rehabilitate youth, rather than punish them:

            The Act is premised on the notion that it is in the best interest of both the juvenile and society that juveniles be insulated from the stigma associated with criminal trials, the publicity, the retributive atmosphere and threat of criminal incarceration.

            Thus, the policy aims of the Act is the protection of juveniles from criminal trials. This implies a lax standard for transferring juvenile cases to criminal court.

DISCUSSION

            Considering the due process implications, the plain language of the statute, and the policy aims, the scale tips toward excluding arrests without convictions in the test for transferring cases to criminal court. If two circuits can take reasonable approaches to the plain language interpretation of the statute, and have two different results, then the statute defies the plain language approach. Therefore, the best interpretation is found elsewhere.

            The policy aims and the due process considerations are important factors when deciding what to review because the decision often creates a significant impact on a juvenile’s life. The Shield court specifically called for shielding juveniles from the retributive nature of the criminal courts.[26] If a kinder, gentler, more rehabilitative court system is the stated policy aim for juveniles, then reducing their due process rights seems counterproductive.

            Returning to the hypotheticals considered at the beginning, barring arrests only would permit Ellen’s drug arrest to be included in the judge’s consideration, but not her previous armed robbery. Under the same standard, Michael would have no delinquent record to examine. Although Ellen may not receive the harsh sentence preferred by some in the community, eliminating the use of arrests keeps Michael from receiving a sentence that is unjustified. To paraphrase Blackstone’s formulation, it is better that one hardened delinquent receive a sentence that is too light, than a juvenile capable of rehabilitation be treated too harshly.

            Additionally, previous arrests should not be considered under the other factors a judge weighs when contemplating a transfer to criminal court. Prior arrests aren’t considered during the sentencing phase of an adult’s trial, so they should not affect the sentencing of a juvenile.

CONCLUSION

           Courts should not consider arrests without convictions when deciding whether to transfer a juvenile case to criminal court. The practice violates the due process rights of the juveniles, does not meet the policy aims of § 5032, and there is no agreed plain language view of the phrase “delinquent record” on which the courts can agree.  Therefore, if protecting our juveniles from the horrors of the adult penal system is a national goal, siding with the Eighth Circuit and the D.C. Circuit may be the way forward.

 

[1] For purposes of simplicity, I will be using the shorter term “conviction” in place of the more technically correct civil/juvenile term “adjudication of delinquency,” as the court cases discussed herein tend to use the criminal court phrases “convicted” or “found guilty.” The Eighth Circuit explicitly made this same decision because, among other reasons, of the variety of nomenclature among the states with regard to juvenile systems. United States v. Juvenile LWO, 160 F. 3d 1179, 1182 n.4 (8th Cir. 1998).

[2] 18 U.S.C. § 5032.

[3] Id.

[4] 149 F. 3d 610, 613 (7th Cir. 1998).

[5] 160 F. 3d 1179, 1183 (8th Cir. 1998).

[6] United States v. Juvenile, 2017 U.S. Dist LEXIS 151370, p. 24 n.13 (E.D.N.Y. Sept. 7, 2017).

[7] 347 U.S. 497, 499 (1954). While Bolling talked about racial discrimination, it was a case about school students, thus indicating that minors also should have due process.

[8] United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994); 18 U.S.C. § 5032; Fed. R. Evid. 404(b); and United States Attorneys Manual (Criminal Resource Manual) §116 https://www.justice.gov/usam/criminal-resource-manual-116-juvenile-delinquency-prosecution-introduction.

[9] Randie P. Ullman, Federal Juvenile Waiver Practices: A Contextual Approach to the Consideration to Prior Delinquency Records, 68 Fordham L Rev 1329, 1357-58 (2000).

[10] Wilson, 149 F.3d at 613.

[11] Id.

[12] LWO, 160 F.3d at 1182-1183.

[13] In Re Sealed Case, 893 F.2d 363, 368-369 (D.C. Cir. 1990).

[14] Id. at 365.

[15] Id. at 369.

[16] Id.

[17] Id.

[18] In Re Sealed Case, 893 F.2d 363, 369 (D.C. Cir. 1990).

[19] Id.

[20] Id. at 369-370.

[21] 160 F. 3d at 1183.

[22] Id.

[23] Id.

[24] Id.

[25] 893 F.2d at 367-368.

[26] Id.

Shot on the Wrong Side of the Border

Natalia Trotter, Associate Member, University of Cincinnati Law Review

Introduction

As the Executive Branch turns towards increasing enforcement on the U.S.-Mexico border, permitting non-citizens to sue border patrol agents in cases of police violence could prove a useful tool for deterring the use of excessive force by federal entities.[1] Although border patrol officers are tasked with detaining aliens entering the country unlawfully, their job does not entail using excessive force against non-violent, unarmed immigrants. When the border patrol is involved in incidents of cross-border violence, agents should not be permitted to escape liability because of a judicial refusal to extend constitutional protections to persons injured on the Mexican side of the border. Since the Supreme Court held in Hernandez v. Mesa that a determination about whether a claim may be brought against a federal agent is antecedent to a constitutional analysis, the Fifth Circuit on remand should recognize a right of action for damages against federal officers and permit injured non-citizens to bring claims against border patrol agents.[2]

Facts of Hernandez v. Mesa

In June of 2010, fifteen-year-old Sergio Adrian Hernández Güereca and a group of his friends were playing in the “cement culvert that separates El, Paso, Texas, from Ciudad Juarez, Mexico.”[3] As a part of their game, the youth would run onto the U.S. side of the border, “up the embankment” to touch the fence barring entrance to the United States.[4] While they were playing, Jesus Mesa Jr., a U.S. Border Patrol Agent, arrived on the scene and detained one of Hernandez’s friends in United States territory.[5] Hernandez was able to make it back across the border without detention, but after Hernandez crossed into Mexico, Mesa took out his gun and shot him in the face, killing him.[6] During the investigation that ensued, the Department of Justice claimed that smugglers, attempting to cross the border, were throwing rocks at Mesa and he reacted in self-defense.[7] Although it is unclear whether or not rocks were actually hurled at Mesa, it does appear that Hernandez was not the source of the rocks and that he “was unarmed and unthreatening at the time” of the shooting.[8] Claiming self-defense, the DOJ and the attorney general’s office decided that there [was] insufficient evidence to pursue prosecution of the CBP agent for a federal homicide offense or for a federal civil rights violation.[9]

Legal Background of Hernandez

Although the DOJ and the prosecutor’s office failed to bring criminal charges against Mesa, Hernandez’s parents sued in civil court seeking damages based on the alleged violation of their son’s Fourth and Fifth Amendment rights.[10] While federal agents are generally protected from liability, Hernandez’s parents asserted standing to sue the federal border patrol agent for constitutional violations under Bivens v. Six Unknown Federal Narcotics Agents.[11] In Bivens, the Supreme Court recognized that a cause of action could arise due to a federal agent’s violation of the Fourth Amendment.[12] Ignoring Bivens, the Fifth Circuit dismissed Hernandez’s Fourth and Fifth Amendment claims.[13] On hearing the case, the Supreme Court placed Bivens at the forefront of the discussion, claiming that the question of “whether the parents of the victim . . . may assert claims for damages against the agent under Bivens” was “antecedent” to the other constitutional questions presented.[14] Finding that Ziglar v. Abbasi limited the scope of applicability of Bivens, the Court refused to answer the Fourth and Fifth Amendment questions and remanded the case to the Fifth Circuit to decide if Hernandez’s claim still applied under Bivens.[15]

Attempting to limit Bivens as much as possible, the Court highlighted in Ziglar that “three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution.”[16] While Bivens addressed a claim against a federal narcotics agent for a Fourth Amendment violation of the search and seizure provision, Davis involved an administrative assistant who brought suit against a Congressman claiming gender discrimination as a violation of the Due Process Clause of the Fifth Amendment.[17] Carlson on the other hand involved an Eighth Amendment cruel and unusual punishment suit where a federal prison guard failed to provide the prisoner with his asthma medication.[18] These three cases represent the only instances in which the Court has extended the implied right of action to federal agents.[19]

Favoring a strong legislative role in determining federal entity liability, the Court in Ziglar created a two-part inquiry for deciding whether a case should fall under the limited implied right of action under Bivens.[20] First, a court must determine “whether a case presents a new Bivens context” claim based on factors such as officer rank, the constitutional question, the “extent of judicial guidance,” intrusion into the separation of powers, or other considerations not addressed in the three Bivens cases. Second, a court should decide whether “special factors,” would point to Congress, rather than the judiciary, as the proper entity to consider and weigh the costs and benefits of allowing a damages action to proceed.[21]

Legal Analysis of Federal Agent Liability

Since the case was remanded to the Fifth Circuit, the lower court must decide whether Hernandez extends Bivens to a new context and whether the judicial branch is best suited for determining liability. Although the Court in recent years has stated that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” the Fifth Circuit should still find in favor of extending federal liability to the situation in Hernandez.[22] First, the Fifth Circuit should conclude that Hernandez presents a new Bivens context claim. Although Hernandez and Bivens both involved Fourth Amendment questions, the facts of the two cases, along with the federal entities involved, are very different. In Hernandez, a border patrol agent shot a Mexican citizen across the border, while in Bivens, a federal narcotics agent conducted an unreasonable search and seizure of the plaintiff’s home. The extent of judicial guidance in both cases is different since search and seizure cases have been widely litigated while the Hernandez case presents a new constitutional inquiry. Similarly, the facts in Davis and the Eighth Amendment claim in Carlson are too different from Hernandez for that case to fit well into either context. Because of the disparities in constitutional claims, factual scenarios, and judicial guidance, the court should find that Hernandez presents a new Bivens claim.

If the court were to decide that Hernandez extends Bivens to a new context, it must then determine if any special factors bar the judiciary from determining that an implied right of action exists against the federal agents. Ziglar points to a number of economic and governmental concerns that must be considered when permitting claims against federal officials.[23] One special consideration highlighted by the court in Ziglar is the economic cost, including the litigation expenses, which the government would incur.[24] The economic factor in Hernandez is not so broad that the judiciary would be unable to properly address the question. Although Congress is better suited for analyzing cases where the federal government could incur huge liability if an implied right of action were permitted, Hernandez involves one suit of an individual family suing an officer. Although cross-border shootings do occur, their relatively rare frequency indicates that allowing a right of action against border patrol agents will not produce a heavy financial burden on the government. In addition to the economic aspect, another special factor pointed to in Ziglar is that the purpose of Bivens is to deter the officer, but not to create liability for superiors.[25] Hernandez fits into this context since the suit in Hernandez is brought solely against the individual officer and does not implicate the United States Border Patrol as a whole. A third special factor involves situations where the claims would call into question the formulation and implementation of a general policy.[26] This concern does not apply to Hernandez since it is not a general policy to allow border patrol agents to shoot unarmed, non-citizens on the Mexican side of the border. Rather than involving an entity-wide policy, the claim in Hernandez addresses individual unconstitutional action. Lastly, a special factor that would require congressional rather than judicial inquiry are situations of national security.[27] Unlike in Ziglar where the federal agency was addressing the aftermath of September 11, 2001, Hernandez did not implicate national security whatsoever. Rather, this case involved a single act of violence that did not threaten the United States in any way.[28] Therefore, the court should find that there are no special economic, policy, or national security factors barring the judicial determination to extend Bivens to Hernandez.

Policy Implications

Refusing non-citizens killed by border patrol on the Mexican side of the border the right to sue federal officers would leave families without any judicial recourse and do nothing to discourage abuse within federal law enforcement agencies. Although cases of cross-border violence are not often highlighted in the media, court documents indicated that “in a recent five-year span, border agents shot across the border at least ten times, killing a total of six Mexicans on Mexican soil.”[29] Since Mexican courts do not have jurisdiction to sue U.S. federal officers, a non-citizen family’s only recourse is to sue in the U.S. federal court system. If denied the right to pursue a claim, a family, such as the Hernandez family, would be unable to receive any damages for the loss of their family member. In the present case, if Mesa shot Hernandez on the U.S. side of the border, approximately fifteen feet from where he was actually killed, the family could have sued the officer in U.S. federal court. Basing a family’s access to relief on a few feet of distance takes the attention away from the act itself and places it on an imaginary line. In addition, protecting officers from liability, based solely on the location of the victim, provides an opportunity for agents to use excessive force against immigrants and escape paying damages. Far from advocating the use of proportional force, the lack of consequences could result in a greater number of cross-border shootings. The court, when deciding whether to extend Bivens to Hernandez, should take into consideration the implications for current affected families and the deterrence effect of tempering federal law enforcement action.

Conclusion

So as to provide families with access to justice and deter officers from using excessive of force, the Fifth Circuit should follow the steps in Ziglar and find that Bivens extends to the context presented in Hernandez and that the judiciary is the correct branch to determine federal agent liability. The court should provide non-citizens, injured by border patrol agents on the Mexican side of the border, with the right of action against federal agents.

[1] Executive Order: Border Security and Immigration Enforcement Improvements, The White House: Office of the Press Secretary (Jan 25, 2017) https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements.

[2] Hernandez v. Mesa, 137 S. Ct. 2003, 2004 & 2006 (2017) citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001).

[3] Hernandez 137 S. Ct. at 2005.

[4] Id.

[5] Id.

[6] Id.

[7] Geneva Sands, Federal Officials Close Investigation into the Death of Sergios Hernandez-Guereca, The United States Department of Justice, (Apr 27, 2012) https://www.justice.gov/opa/pr/federal-officials-close-investigation-death-sergio-hernandez-guereca.

[8] Supreme Court hears case of teen shot dead in Mexico by border agent in US, ABC News, (Feb 21, 2017, 8:28 AM) http://abcnews.go.com/US/supreme-court-hear-case-mexican-teenager-killed-cross/story?id=45621119.

[9] Geneva, https://www.justice.gov/opa/pr/federal-officials-close-investigation-death-sergio-hernandez-guereca.

[10] U.S. Const. amend. IV; U.S. Const. amend. V.

[11] 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.2d 619 (1971).

[12] Id. at 391-392.

[13] Hernandez 137 S. Ct. at 2006.

[14] Id. at 2004 & 2006.

[15] Hernandez 137 S. Ct. at 2006; Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).

[16] Ziglar, 137 S. Ct. at 1855.

[17] Bivens 403 U.S. at 389-390; Davis v. Passman, 442 U.S. 228, 231, 99 S. Ct. 2264, 2269 (1979).

[18] Carlson v. Green, 446 U.S. 14, 17, 100 S. Ct. 1468, 1471 (1980).

[19] Ziglar, 137 S. Ct. at 1855.

[20] Ziglar, 137 S. Ct. at 1859-1860.

[21] Id. at 1857-1859.

[22] Ziglar, 137 S. Ct. at 1857 quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009).

[23] Ziglar, 137 S. Ct. at 1856

[24] Id.

[25] Id. at 1860.

[26] Id.

[27] Id. at 1861.

[28] Id.

[29] Supreme Court hears case of teen shot dead in Mexico by border agent in US, ABC News, (Feb 21, 2017, 8:28 AM) http://abcnews.go.com/US/supreme-court-hear-case-mexican-teenager-killed-cross/story?id=45621119.

Waiving Goodbye to Class Action Waivers

Maria Castro, Associate Member, University of Cincinnati Law Review

Employment arbitration agreements containing class and collective action waivers ensure individual arbitration of employees’ employment-related claims.[1] One issue that has arisen is whether an employer’s prohibition on pursing class and collective action claims violates an employee’s right to act in concert with other employees. In May 2017, the Sixth Circuit held that mandatory class and collective action waivers, as a condition of employment, violate the National Labor Relations Act (NLRA) and are therefore unenforceable.[2] This decision is in line with the Seventh and Ninth Circuit approaches to class action waivers.[3] However, the Fifth and Eighth Circuits have both found that class and collective action waivers are valid and enforceable under the Federal Arbitration Act (FAA).[4] The US Supreme Court granted certiorari to resolve this circuit split and to determine whether class action waivers violate the NLRA, or whether they are enforceable under the FAA. The Supreme Court should follow Sixth Circuit precedent and hold that mandatory class and collective action waivers are an unlawful violation of the NLRA. By prohibiting employees from collectively bringing suit against their employer, the interpretations of the Fifth and Eighth Circuits interferes with employees’ ability to level the playing field between them and their employer.

The Fifth Circuit: Class Action Waivers are Enforceable

In D.R. Horton, Inc. v. NLRB, the Fifth Circuit upheld enforcement of a class and collective action waiver provision that prohibited employees from “filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial.”[5] The employee in D.R. Horton sought to bring a collective action against his employer for unlawfully misclassifying him and other similarly situated employees as exempt from statutory overtime protections.[6] The employer argued that the arbitration agreement barred its employees from pursuing collective claims, but allowed for them to initiate individual arbitration proceedings.[7] In its decision, the Fifth Circuit found that (1) the policy considerations behind the NLRA did not override the policy considerations in the FAA and (2) class and collective action waivers do not violate employees’ substantive rights.[8]

The NLRA was enacted to protect the rights of employees and employers, encourage collective bargaining, and reduce harmful labor practices.[9] Under Section 7 of the NLRA, employees have the right to engage in concerted activities for the purpose of collective bargaining or other types of mutual aid or protection.[10] Through the NLRA, Congress intended to equalize bargaining power between employees and employers by allowing employees to band together to confront their employer.[11] The Fifth Circuit recognized that the NLRB and other circuits have held that Section 7 protects collective-suit filings as a form of concerted activity.[12] However, the Fifth Circuit ultimately found that these decisions did not give proper weight to decisions that have interpreted the FAA, finding that “arbitration has been deemed not to deny a party any statutory right.”[13]

The FAA was intended to prevent courts from treating arbitration agreements less favorably than other private contracts.[14] Under the FAA, arbitration agreements must be enforced according to their terms, unless the agreement violates grounds that exist at law or in equity for the revocation of any contract.[15] Creating a circuit split, the Fifth Circuit found that class and collective action waivers do not violate any substantive rights and therefore are not protected by Section 7 of the NLRA.[16] When reaching this conclusion, the Fifth Circuit analyzed whether the Rule 23 right to class action constitutes a substantive right protected by the NLRA.[17] The Fifth Circuit looked to previous Fifth Circuit decisions that have “characterized a class action as a ‘procedural device.’”[18] Accordingly, the court found that the use of class action procedures is procedural, not substantive, and therefore not protected by the NLRA.[19] As a result, the Fifth Circuit held that class and collective action waivers do not violate the NLRA and are therefore enforceable under the FAA.

The Sixth Circuit: Class and collective action waivers violate the NLRA

In NLRB v. AEI, the Sixth Circuit found that a mandatory arbitration agreement was unenforceable when it required its satellite technicians to waive their right to class or collective actions in both arbitral and judicial forms, as a condition of their employment.[20] When determining whether the class action waiver provision was enforceable, the Sixth Circuit rejected the Fifth Circuit’s analysis in D.R. Horton. The Sixth Circuit found that the question was not whether the policy considerations of one statute override the other.[21] Rather, the Sixth Circuit found that the NLRA and FAA are compatible with one another.[22]

According to the Sixth Circuit, “The NLRA prohibits the arbitration provision on grounds that would apply to any contractual provision, and thus triggers the FAA’s saving clause.”[23] The NLRA protects the right to engage in concerted activities for the purpose of collective bargaining. “Concerted activity” includes resorting to administrative and legal forums.[24] As a result, the Sixth Circuit found that mandatory arbitration provisions barring collective or class action suits are unlawful because “they interfere with an employees’ right to engage in concerted activity, not because they mandate arbitration.”[25] Under the FAA, any contract that violates an employees’ right to engage in concerted legal activity is unenforceable.[26] The Sixth Circuit then looked to whether the NLRA protected an employee’s right to utilize Rule 23. The Sixth Circuit found that the focus on whether Rule 23 was a substantive right was irrelevant because “[r]ule 23 is not a substantive right, but the Section 7 right to act concertedly through Rule 23, arbitration, or other legal procedures is.”[27]

Mandatory Class and Collective Action Waivers Violate Employees’ Rights

Arbitration is favored in the legal system for several reasons. Employers commonly favor arbitration agreements due to the high costs associated with litigation. Likewise, the FAA also favors arbitration because it is often a quicker, cheaper, and more efficient method of dispute resolution. In addition, courts have been favorable towards arbitration agreements because arbitration helps to clear their dockets. The issue here is not whether mandatory arbitration policies are valid; that issue has already been settled.[28] Rather, the issue here is whether employers may eliminate employees’ ability to pursue collective-suit filings, through either litigation or arbitration. Courts have held that a “lawsuit filed in good faith by a group of employees to achieve more favorable terms or conditions of employment is ‘concerted activity’ under Section 7” of the NLRA.[29] The NLRB and the Sixth, Seventh, and Ninth Circuits recognize that class and collective action lawsuits help to equalize employee bargaining power. This is precisely the goal that Congress had in mind when it passed the NLRA.[30]

Class action lawsuits are an employer’s worst nightmare. The cost of a class action lawsuit is enough to pressure an employer into settling any claim, regardless of its merit. Otherwise, a company could go out of business just from the high cost of legal fees associated with a collective suit. Discovery in a class action suit is time consuming and extremely expensive. An individual claim in arbitration can be resolved much quicker. A class and collective action waiver eliminates the risk that an employer would have to potentially defend against an entire class of individuals, rather than just against a single claim. Although there are many benefits to employers in prohibiting employees’ collective suits, such prohibitions can be detrimental to an employee’s ability to confront his or her employer.

Collective lawsuits help to level the playing field between employees and their employer. Historically, class actions have “proved critical to the protection of rights of employees, consumers, medical patients, racial or ethnic minorities, and others who lack the resources to litigate individual claims.”[31] Without the availability of a class or collective action, employees lose a form of leverage against employers that violate multiple employee rights. The possibility of a class or collective action suit can discourage an employer from continuing a practice that violates its employees’ rights because the risk of a class or collective action is too high. In addition, collective filing suits enable employees who may not be able to afford to sue individually to be able to pursue claims against their employers. Some claims are not worth pursuing on an individual basis because the cost of pursuing them may far outweigh the potential remedies. Plaintiff’s employment attorneys often work on a contingency basis and may be discouraged from taking cases that are unlikely to be profitable on an individual basis. Collective suit filing is also an efficient method of resolving many claims at once. It avoids inconsistent judgments and saves judicial resources.[32]

Conclusion

If an employer barred class action through litigation, but allowed for collective action through arbitration, then this type of provision should be enforceable because it would still allow for an employee to engage in concerted activity through arbitration. However, under the Fifth and Eighth Circuit rulings, employers may deny employees the ability to act concertedly through both forums, arbitral and judicial. Under this approach, employees may not join together to confront their employer through any legal process, and are forced to pursue all employment-related disputes on an individual basis. As a result, class action waivers violate an employee’s Section 7 right to engage in concerted activity. Therefore, the Supreme Court should uphold Sixth, Seventh, and Ninth Circuit precedent and find that class action waivers violate the NLRA and are therefore unenforceable under the FAA.

[1] D.R Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013).

[2] Natl. Lab. Rel. Bd. v. Alt. Ent., Inc., 858 F.3d 393 (6th Cir. 2017).

[3] Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016); Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016).

[4] D.R Horton, 737 F.3d at 344; Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015); Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772 (8th Cir. 2016); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013).

[5] 737 F.3d at 355.

[6] Id. at 349.

[7] Id.

[8] Id. at 358.

[9] 29 U.S.C. § 151.

[10] Id. at § 157.

[11] D.R Horton, 737 F.3d at 356.

[12] Id.

[13] Id. at 357.

[14] Id. at 358.

[15] 9 U.S.C. § 2.

[16] D.R Horton, 737 F.3d at 357.

[17] Id.

[18] Id (quoting Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 643 (5th Cir. 2012).

[19] D.R Horton, 737 F.3d at 357.

[20] Alt. Ent., Inc., 858 F.3d at 411.

[21] Id. at 402.

[22] Id.

[23] The FAA’s saving clause provides that arbitration agreements are enforceable unless they violate any “grounds as exist at law or in equity for the revocation of any contract.” Alt. Ent., Inc., 858 F.3d at 406.

[24] Id. at 402.

[25] Id. at 403.

[26] Id.

[27] Id.

[28] 29 U.S.C. § 2.

[29] Brady v. Nat’l Football League, 644 F.3d 661, 673 (8th Cir. 2011).

[30] Alt. Ent., Inc., 858 F.3d at 402.

[31] Sternlight, As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?, 42 Wm. & Mary L. Rev. 1, 12 (2000).

[32] Id. at 29-30 (“Class actions have been praised widely for a variety of attributes including efficiency, improving access to the litigation system, and serving the public interest. In terms of efficiency, it is claimed that they allow issues involving multiple persons or institutions to be resolved more cheaply and expeditiously. As to access, numerous courts including the Supreme Court have emphasized that the class mechanism can make possible suits which otherwise would have been logistically or economically impossible.”).

The Legality of Trump’s Transgender Policy

John Bernans, Associate Member, University of Cincinnati Law Review

Title VII of the Civil Rights Act is a federal statute that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.[1] Recently, President Trump indicated that he planned to implement a ban on transgender individuals serving in our country’s military. The Department of Defense and the Department of Homeland Security have generally prohibited openly transgender individuals from serving in the United States military and authorized the discharge of such individuals.[2] Courts interpreting Title VII of the Civil Rights Act have held that sexual orientation is not a protected class under the statute.[3] Historically, courts believed that sex discrimination did not include discrimination based on an individual’s sexual orientation.[4] Because of this, many of the federal courts’ prior decisions have held that one cannot seek relief or a legal remedy for a sexual orientation discrimination  claim brought under Title VII. Sexual orientation discrimination claims, partly because of President Trump’s new policy, have come to the forefront in recent months. Two cases of note, Hively v. Ivy Tech Community College and Evans v. Georgia Regional Hospital are important because they show a split in circuit decisions. Analyzing these cases, legislative history, and a possible Supreme Court ruling will all play key roles in determining the validity of President Trump’s ban on transgender military personnel. This plan is controversial and based on Supreme Court precedent, it is also illegal.

Hively v. Ivy Tech Community College

The analysis of the most recent sexual orientation cases begins with Hively v. Ivy Tech Community College. In this case, an adjunct professor brought suit against the community college alleging that she was denied fulltime employment and promotions based on her sexual orientation.[5] The case went to the Seventh Circuit, where the court rejected her claim as beyond the scope of Title VII.[6]

Rehearing the case en banc, the Seventh Circuit looked to define what it meant to discriminate on the basis of sex and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.[7] In holding sexual orientation was in fact covered under Title VII, the court used Oncale[8] as their guiding light.[9] The court saw no justification in the statute or their precedent for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.[10] Hively alleges that if she had been a man marrying a woman and all other character factors had been the same, Ivy Tech would not have refused to promote her and would not have fired her. In addressing the gender conformity argument, the court stated, “Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”[11] The court concluded by stating that it would require “considerable calisthenics to remove ‘sex’ from ‘sexual orientation.”[12] With the logic of the Supreme Court and common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, it persuaded the court to overrule their previous holding in Hively.[13]

Evans v. Georgia Regional Hospital

While the Hively en banc court may have ruled sexual orientation is actionable under Title VII of the Civil Rights Act, many courts follow the reasoning the first Hively court used. The Eleventh Circuit followed this logic in Evans v. Georgia Regional Hospital. Jameka Evans, a hospital security guard, alleged she was harassed by her supervisor, denied promotions, and punished because her status as a gay female did not comport with her employer’s gender stereotypes.[14]

In its opinion, the Eleventh Circuit relied heavily upon stare decisis. The court stated that binding precedent in the matter of sexual orientation foreclosed an action under Title VII.[15] In their reasoning, the court relied on Blum v. Gulf Oil Corp.[16] The Blum court held that a discharge for homosexuality is not prohibited under Title VII and the Supreme Court had never squarely addressed whether Title VII prohibits sexual orientation discrimination.[17] The court went on to list a case from almost every circuit that held sexual orientation is not covered under Title VII.[18] The court reasoned that “sex” and “sexual orientation” are different and sexual orientation does not fall under the scope of Title VII. Distinguishing the Evans case from cases such as Price Waterhouse, the court explained that in order to overturn circuit precedent, a decision by the Supreme Court must be “on point, or contrary” to the case and the Eleventh Circuit did not believe that Price Waterhouse applied.[19] Based on the binding precedent and prior case law, the Eleventh Circuit affirmed the dismissal of Evan’s sexual orientation claim.

The Legality of the Transgender Ban

The legality of President Trump’s transgender military ban will be determined based on the manner in which the plaintiffs bring their claim. If a claim against the transgender ban is brought under the gender non-conformity concept, the Court will deem the plan to be illegal. If the plaintiffs bring their action using a sexual orientation, there is not much precedent to support them. Most circuits have ruled that Title VII does not cover sexual orientation, making it difficult for the Supreme Court to say otherwise. However, this is not the most likely route for the plaintiffs to pursue. For the purposes of this article, it is safe to assume that potential plaintiffs would bring their claim under a gender non-conformity line of reasoning.

 The Supreme Court has affirmatively stated that gender non-conformity arguments are cognizable under Title VII.[20] Price Waterhouse was the first to hold that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination, instead of sexual orientation discrimination.[21] In analyzing our society’s views around sex in America, it reveals that modern America views heterosexuality as the norm and other forms of sexuality as odd or strange. In the case of the transgender ban in the military, this would be even more non-conformity than homosexuality. The ban directly targets an individual who not only does not conform to gender norms, but they want to represent themselves as the opposite gender. These individuals are being discriminated against because they do not conform to the idea of what we think conformity to your gender assignment should be. The military is no different from any other employer in that they cannot discriminate based upon an individual’s sex. This is exactly what the military would be doing if it could be proved that the ban penalizes individuals for their gender non-conformity.

As the court stated in Evans, a claim for legal relief comes down to alleging the proper facts to prove gender non-conformity.[22] Although the Court in Evans held that Evans’s claim for relief was more sexual orientation than gender non-conformity, the court did state that if she had framed the facts differently, her case would have been heard.[23] Like the Hively court, Evans stated that discrimination against a transgender individual was in fact sex-discrimination.[24] However, plaintiff must be cautious when alleging discrimination based on gender non-conformity. Multiple courts have held that gender non-conformity claims are a way to mask plaintiff’s real claims of sexual orientation discrimination. The Evans court however took a major step forward however when they held that gender non-conformity is not just another way to claim discrimination based on sexual orientation, but instead, constitutes a separate, distinct avenue for relief.[25] In terms of President Trump’s transgender ban, plaintiffs bringing a suit would need to allege proper facts to show that they are being discriminated against because they do not conform to a male or female stereotype. For transgender military service individuals, these sets of facts and allegations should provide a claim for legal relief.

            One important aspect of President Trump’s transgender ban that needs to be considered is the President’s power as Commander-in-Chief. Constitutional issues, specifically Article II issues, are something that must be considered when analyzing the ban. Under Article II, the president is the commander of the armed forces.[26] The President is entrusted with highly sensitive information and has the knowledge to make critical military decisions. Because of this knowledge, the President has significant discretion when it comes to creating policies concerning national security. However, when it comes to the transgender ban, this policy does not fall within the President’s broad discretion. However broad the discretion is, the President still cannot discriminate in the military on the basis of things like race or sex. Because the ban discriminates on the basis of sex, the President will not be able to use his Article II powers.

In the short term, analyzing a claim against President Trump’s transgender ban in the military will be determined by how the plaintiffs frame the issue and how the court decides to look at it. Whichever route the plaintiff’s take in their claims, there is a chance that the court will refuse to provide protection. Potential plaintiffs must frame their discrimination carefully and allege facts that clearly allege discrimination based on gender non-conformity. The transgender policy involves discrimination on the basis of sex. Sex discrimination can occur when one is discriminated against for not conforming to the gender ideals of our society. The plaintiffs in a potential case must allege proper facts to support their non-conformity suit. If plaintiffs do this and bring a claim against the transgender ban, it is likely that the Court will strike the ban for violating Title VII.

Conclusion

President Trump’s transgender military ban, if analyzed through the lens of gender non-conformity, will likely be violate Title VII. The transgender ban directly targets individuals because they do not conform to society’s view of what a male or female should act or look like. Although sexual orientation claims are not typically actionable under Title VII, this ban would be hard not to be viewed through the conformity perspective. The Court has ruled in multiple cases that gender non-conformity discrimination is discrimination based off of sex and that is something that is protected under Title VII.

[1] Civil Rights Act of 1964 §7

[2] Memorandum for the Secretary of Defense, Military Service by Transgender Individuals

[3] Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255-1257 (11th Cir. 2017)

[4] Hively v. Ivy Tech Community College, 853 F.3d 339, 345 (7th Cir. 2017)

[5] Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017)

[6] Hively v.  Ivy Tech Community College, 830 F.3d 698, 699 (7th Cir. 2016)

[7] Hively v. Ivy Tech Community College, 853 F.3d 339, 343 (7th Cir. 2017)

[8] Held that same sex harassment in the workplace was actionable under Title VII of the Civil Rights Act.

[9] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)

[10] Hively, 853 F.3d at 344

[11] Id. at 346

[12] Id. at 350

[13] Id. at 351

[14] Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1251 (11th Cir. 2017)

[15] Id.

[16] Id. at 1255

[17] Id.

[18] Id. at 1256

[19] Id. at 1256

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

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

[22] Evans, 850 F.3d at 1253

[23] Id. at 1254

[24] Id.

[25] Id. at 1249

[26] Article II, United States Constitution

Lock Them Up and Throw Away the Key?

Natalia Trotter, Associate Member, University of Cincinnati Law Review

Introduction

As the social perception of migrants becomes increasingly hostile, the constitutional rights of non-citizens continue to erode.[1] Although undocumented immigrants and people holding lawful permanent resident (LPR) status do receive protection from the United States Constitution, non-citizens are continuously detained and denied due process of law.[2] Therefore, the Supreme Court stands as the entity best positioned to uphold the constitutional protections of non-citizens in the face of increasing legislation that calls into question the rights of detained immigrants. Jennings v. Rodriguez may prove an important case in determining whether immigrants detained at a port of entry may be held indefinitely without access to a bond hearing.[3] The Supreme Court in Jennings should hold indefinite detention of immigrants without bond hearings unconstitutional. Furthermore, it should reject the practice due to social and economic policy implications.

Rights Under the Fifth Amendment

The Fifth Amendment states “no person shall be…deprived of life, liberty, or property without due process of law.”[4] Although the Fifth Amendment expressly protects people, through the due process clause, the language of the Amendment is unclear as to the protections extended to non-citizens. In 2001, the Supreme Court held: “the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”[5] The Court further expressed great discomfort with permitting indefinite detention of admitted aliens without bond, claiming that this practice would “raise serious constitutional concerns.”[6] Although 8 U.S.C. § 1231(a)(6), addressed in Zadvydas, allows for the detention and removal of aliens, the statute does not include any specific time measure limiting detention.[7] Due to the constitutional implications of indefinite detention, the Court in Zadvydas chose to “construe the statute to contain an implicit ‘reasonable time’ limitation.”[8] While the Court’s decision in Zadvydas placed a limit on detentions, it did so only in regards to admitted aliens falling under § 1231(a)(6).[9] This decision left open the question of whether the holding applies to other portions of the statute, such as 8 U.S.C. § 1225(b), which addresses the inspection and removal of aliens arriving at a port of entry.[10]

Rodriguez and the Support for Mandatory Bond Hearings

The Ninth Circuit holding in Rodriguez v. Robbins stands as a crucial decision since it is the only circuit court case to address the issue of whether an immigrant detained under § 1225(b) may be held indefinitely without a bond hearing.[11] Rodriguez presents a class action suit containing a subclass of individuals detained at a port of entry under § 1225(b).[12] In Rodriguez, the district court found in favor of the plaintiffs and mandated bond hearings to be held after six months of detention.[13] At the hearing, the court required the government to demonstrate that the immigrant posed a danger to the community or was a flight risk, before continued detention was permitted.[14]

Although the government argued that aliens arriving to the U.S. and detained at a port of entry held less constitutional rights than those already admitted, the Ninth Circuit disagreed.[15] Since some of the detained individuals were LPRs reentering the country, the court feared discrimination against LPRs who possess constitutional rights, and thus determined that the entire class of persons falling under the provision should receive Fifth Amendment protection.[16] The court ultimately held in Rodriguez that “brief periods of mandatory immigration detention do not raise constitutional concerns, but prolonged detention—specifically longer than six months—does.”[17]

Second Circuit Interpretations

Since Rodriguez is currently pending before the Supreme Court, the Second Circuit has stayed all cases that question whether an immigrant may be detained indefinitely under § 1225(b). Although the Second Circuit has yet to rule on the issue, four district court decisions within the Circuit demonstrate the confusion surrounding the application of Fifth Amendment rights to cases involving non-citizens.[18] In Lora v. Shanahan, the Second Circuit concluded that mandatory detention pursuant to 8 U.S.C. § 1226(c) for longer than six months without a bond hearing violates the Due Process Clause.[19] Extending this holding to cases under § 1225(b), the district court in Morris held that an “LPR absent from the United States for approximately one week possesses the same due process rights at the border as those enjoyed by an LPR continuously present within the United States.”[20] Similarly, the court in Arias found that the plaintiff “as an LPR, retained the same constitutional protections he possessed before leaving the United States . . . that § 1225(b) must be construed to avoid due process concerns,” and that a six-month limit would prove an appropriate standard.[21] Both courts agreed that LPRs detained at the border and those detained in the country possess the same Fifth Amendment rights.

While the courts in Morris and Arias extended Lora to encompass § 1225(b) and followed the precedent set by the Ninth Circuit in Rodriguez, the courts in Perez and Cardona rejected mandatory bond hearings under § 1225(b).[22] The court in Perez “found no case within this Circuit holding that detention under § 1225(b) is implicitly time limited or requires a bond hearing.”[23] In a similar interpretation, the court in Cardona stated simply that Lora was meant only to address detention under § 1226(c) and could thus not be construed as extending to detentions under § 1225(b).[24] With no ruling from the Second Circuit or the Supreme Court, the district courts split in deciding whether to extend the holdings of Lora and Rodriguez to § 1225(b) cases.

Analysis and Policy Implications of Rodriguez

When deciding Jennings v. Rodriguez the Supreme Court should uphold the rights of immigrants under the Fifth Amendment by rejecting the indefinite detention of non-citizens and LPRs.[25] It should also take into account the impact of the decision on the lives of detainees, their families, and their communities and the economic implications of indeterminate detention.

Permitting the indefinite detention of immigrants would pose serious constitutional concerns. In Rodriguez, the government’s primary argument hinges on the assumption that non-citizens detained under § 1225(b) hold fewer constitutional rights than immigrants detained in the country.[26] The main problem with this argument arises in situations where an LPR leaves the United States for a limited time and, upon return, is detained at a port of entry for criminal activity.[27] Based on the government’s argument, that person should receive less Fifth Amendment protection than an LPR arrested in the country for a similar crime. Creating different outcomes for two individuals with similar residency status based on the location of their arrest is illogical and inconsistent. While the Government in Jennings argued “that Congress has provided sufficient due process by permitting noncitizens to hire attorneys at their own expense, use interpreters, present evidence, and appeal their cases,” the argument ignores the discrepancy between allowing some LPRs access to bond hearings while denying others such protection based solely on the location of the arrest.[28] The Government’s claim trivializes the rights that the Fifth Amendment protects by pointing to an immigrant’s access to lawyers, interpreters, evidence and appeals while ignoring the fundamental right to “due process of law.”[29] Holding a person without a bond hearing, where a neutral decision maker may consider the necessity of detention, is a serious deprivation of liberty without due process of law.

Another set of arguments used by the government to defend indefinite detention is that detained immigrants pose a danger to the community and are a flight risk.[30] However, many of the immigrants detained at a port of entry are LPRs with families, jobs, and deep roots in the United States with little to no connection to their countries of origin. People who grew up in the United States or who came to America and established family connections and community ties are unlikely to leave their State of residence, much less the country. While the government could be correct in saying that some detainees pose a danger to the community, this determination should be conducted on a case-by-case basis, especially in instances involving non-violent offenses. Conducting a case-by-case review would allow the government to actually ascertain which detainees pose a danger to the community or are flight risks, rather than placing all immigrants in the same category based on the location of their arrest.

The government’s position further ignores the economic waste produced by denying immigrants the possibility of bond. The National Immigration Forum estimates that the current cost to detain an immigrant is approximately $159 per day.[31] At this rate, the government spends roughly $5 million dollars per day on immigration detention alone.[32] Although it is uncertain the number of immigrants detained specifically under § 1225(b), the amount of money spent per day on each detained immigrant is astronomical. Not only does the government spend almost two billion dollars a year on immigration detentions, but those LPRs detained for extended periods of time are unable to work, pay taxes or support their families. Although many of the detained immigrants eventually win their cases, they nevertheless lose their homes, jobs, and savings due to the length of detention.[33] Preventing LPRs from working in legitimate business capacities during the immigration procedure, while also spending $159 per day for each detainee, is a fiscally unsound policy that creates significant waste for the country and financial instability for thousands of families.

Conclusion

The Supreme Court in Jennings should reaffirm the reasoning of the courts in the Ninth and Second Circuits, holding that indefinite detention under §1225(b) is a violation of the Fifth Amendment. The Court should also recognize the economic and social policy implications of indefinite detention and require the government to provide immigrants with an individualized opportunity to prove to a neutral decision-maker that they are not a flight risk or a danger to the community.

[1] Francis Wilkinson, Trump is Winning His War on Immigration, Bloomberg View (July 25, 2017, 9:30 AM), https://www.bloomberg.com/view/articles/2017-07-25/trump-is-winning-his-war-on-immigration.

[2] Lornet Turnbull, Judge: Detained immigrants must get bond hearings, The Seattle Times (March 13, 2014, 11:44 AM), http://www.seattletimes.com/seattle-news/judge-detained-immigrants-must-get-bond-hearings/.

[3] Jennings v. Rodriguez, http://www.scotusblog.com/case-files/cases/jennings-v-rodriguez/ (last visited Sep. 22, 2017).

[4] U.S. Const. Amend. V.

[5] Zadvydas v. Davis, 533 U.S. 678, 693, 121 S. Ct. 2491, 2500 (2001).

[6] Id. at 682.

[7] 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V).

[8] Zadvydas, 533 U.S. at 682.

[9] Zadvydas, 533 U.S. at 699-700; 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V).

[10] 8 U.S.C. § 1225(b) (1994 ed. Supp. V).

[11] Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013); 8 U.S.C. § 1225(b) (1994 ed. Supp. V).

[12] Rodriguez, 715 F.3d at 1130-1131.

[13] Id. at 1130.

[14] Id.

[15] Rodriguez, 715 F.3d at 1140; § 1231(a)(6).

[16] Id at 1141-1142; 8 U.S.C. § 1231(a)(6).

[17] Id. at 1144.

[18] Morris v. Decker, 2017 U.S. Dist. LEXIS 72146 (S.D.N.Y. May 11, 2017); Arias v. Aviles, 2016 U.S. Dist. LEXIS 91687 (S.D.N.Y. July 14, 2016); Perez v. Aviles, 188 F. Supp. 3d 328 (S.D.N.Y. 2016); Cardona v. Nalls-Castillo, 177 F. Supp. 3d 815 (S.D.N.Y. 2016).

[19] Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir. 2015).

[20] Morris, 2017 U.S. Dist. at *8.

[21] Arias v. Aviles, 2016 U.S. Dist. at *10.

[22] Perez v. Aviles, 188 F. Supp. at 332; Cardona v. Nalls-Castillo, 177 F. Supp. at 815-16.

[23] Perez 188 F. Supp at 332.

[24] Cardona 177 F. Supp. at 815-816.

[25] Rodriguez v. Robbins is the same case as Jennings v. Rodriguez. The names changed upon appeal.

[26] Rodriguez, 715 F.3d at 1140.

[27] Morris, 2017 U.S. Dist. at *10.

[28] Aaron Reichlin-Melnick, Supreme Court Considers Challenge to Detention of Immigrants Without Bond Hearings, Detention, Federal Courts/Jurisdiction http://immigrationimpact.com/2016/12/01/supreme-court-considers-challenge-detention-immigrants-without-bond-hearings/ (last visited Sep. 16, 2017).

[29] U.S. Const. Amend. V.

[30] Supreme Court Considers Challenge to Detention of Immigrants Without Bond Hearings http://immigrationimpact.com/2016/12/01/supreme-court-considers-challenge-detention-immigrants-without-bond-hearings/ (last visited Sep. 16, 2017).

[31] The Math of Immigration Detention, National Immigration Forum (August 22, 2013), http://immigrationforum.org/blog/themathofimmigrationdetention/; (Immigration detention centers hold approximately 31,800 people per day).

[32] Id.

[33] Jennings v. Rodriguez, Prolonged Detention Stories  https://www.prolongeddetentionstories.org/jennings-v-rodriguez/#jennings-v-rodriguez-102 (last visited September 16, 2017).

The Disappearing Defendant: Smart Strategy or Critical Error

Alexandra Soisson, Associate Member, University of Cincinnati Law Review

The Sixth Amendment guarantees the right to have an attorney present during criminal proceedings to every criminal defendant.[1] Since the amendment was ratified, courts have modified that guarantee to require that defendants not only have a right to counsel, but have a right to effective assistance of counsel. The issue of effectiveness of counsel has been evaluated based on a number of conditions, one of which is the decision to call the defendant to testify at trial. The decision to call a defendant to testify at trial involves weighing complex influences and ultimately, determining that the potential positive effects outweighs the significant risk.[2] This critical decision troubles defense attorneys and the attorney often shies away from putting his client on the stand. However, if an attorney does decide to call the defendant to testify, then later changes his mind, is that ineffective assistance? Federal courts have answered this question differently and though their analyses initially seems to suggest the issue is unsettled, in reality they apply similar factual analyses to different factual scenarios.

In 2002, the First Circuit found that an attorney’s promise to present the defendant’s testimony at trial and then failure to do so met the standard of ineffective assistance of counsel.[3] However, the Eighth Circuit split from the First Circuit’s ruling in 2017.[4] This split led to the question at hand: whether promising the jury during opening statements that they would hear from the defendant then choosing not to call the defendant at trial equates to ineffective assistance of counsel. The answer lies in the events that unfolded during the trial. It is reasonable for an attorney to choose not to call a defendant in light of changed circumstances.[5] However, if nothing unforeseeable occurs during trial, the attorney’s choice not to call the defendant after promising to do so is deemed ineffective assistance of counsel.

Ouber v. Guarino

In 2002, an inmate sought habeas corpus relief in a federal district court on a drug-trafficking conviction.[6] Her claim of ineffectiveness of counsel was based on her attorney’s repeated promise to the jury during opening statements that they would hear from the defendant and then later decided not to call the defendant at trial.[7] The defendant faced a significant battle to be heard on the issue. The defendant was only heard in federal court on this petition after the trial court denied her motion for a new trial. However, the federal district court granted her habeas petition based on the Massachusetts Appeals Court’s unreasonable application of the widely-used Strickland standard.[8]

In Strickland v. Washington, the court laid out the controlling standard for deciding ineffective assistance of counsel claims, namely that the defendant must show (1) that counsel’s performance was deficient; and (2) the deficient performance by counsel prejudiced the defense.[9] In applying this standard, the district court first addressed the deficiency prong, also referred to as the “performance prong.” To show that the counsel’s performance was deficient, counsel’s error must be so serious that counsel is considered not functioning within the guarantees of the Sixth Amendment.[10] This difficult standard is made more burdensome by the fact that Strickland requires significant deference in favor of the attorney.[11] Nevertheless, the district court found that Ouber’s attorney met that standard.[12] Specifically, the court found that the attorney’s decision to present the petitioner’s testimony as the centerpiece of the defense coupled with his later decision not to call the defendant rose to the level of a violation of the first Strickland prong.[13]

The court repeatedly emphasized the fact that the information the attorney had during his opening statement had not changed between the attorney’s initial promise and his subsequent decision not to call the defendant.[14] The court stressed that the testimony elicited during the trial was exactly what the attorney expected when he made his opening statement where he promised the jury not once, but four times, that the defendant would testify.[15] In addition, the court based its holding on the fact that the attorney failed to inform the petitioner about the possible negative impact of not testifying.[16] In the eyes of the court, the decision to advise the client not to testify with no circumstantial changes and the lack of explanation given to the petitioner about the possible negative effects of that decision rose to the level of a violation of the petitioner’s Sixth Amendment right to effective counsel.[17]

However, finding that counsel was ineffective is only the first hurdle to proving an ineffective assistance of counsel claim.[18] Strickland dictates that the court must then show that the error of counsel prejudiced the petitioner in some way.[19] An error will be found prejudicial if there is a strong possibility that it affected the outcome of the case.[20] Although this is often difficult to prove, prejudicial error was clear in Ouber.[21] The petitioner’s conviction came in not her first, but rather her third trial on the issue after the first two trials resulted in mistrials.[22] The only substantial difference in the third trial was the absence of her testimony as a witness in the case.[23] Noting this departure from the first two trials and the difference in outcome, the court found that the decision not to call the petitioner was outcome determinative and prejudiced the defendant.[24] Ultimately, the court found that the state court misapplied the Strickland standard and failed to correctly conclude that defense counsel’s actions rose to the level of ineffective assistance of counsel.[25]

Bahtouch v. Smith

Recently, the Eighth Circuit reexamined the issue of ineffective assistance of counsel based on a failed promise to have the defendant testify in Bahtuoh v. Smith.[26] Here, contrary to Ouber, the court denied the petitioner’s habeas petition, finding the defense attorney’s decision not to call the defendant to testify after promising to do so in opening statements did not rise to the level of a Sixth Amendment violation.[27] Again applying the standards set forth in Strickland, the Eighth Circuit found the Minnesota Supreme Court’s application of Strickland’s performance prong was reasonable.[28]

During the trial, the prosecution presented a witness that offered testimony defense counsel did not expect. That unforeseen testimony made the defendant’s testimony seemingly unnecessary and defense counsel decided against calling the defendant as a witness.[29] In this scenario, the court found that the decision not to call the defendant was reasonable given the unexpected change during the trial.[30]

Reviewing the state court’s application of Strickland, the Eighth Circuit referenced Ouber v. Guarino and the seemingly inconsistent holding, noting a key difference in the circumstances of the two cases.[31] The court stressed that in Ouber there was no change or unforeseen development in the case between the counsel’s opening statement promise and his decision to not call his client. Conversely, in Bahtouh there was a development – namely that the prosecution’s witness presented the information that the defense counsel hoped to elicit from the defendant’s testimony– and thus the change in strategy was justified.[32]

The Key Difference

Although Bahtouh and Ouber appear to be exact opposites, there is an important distinction that makes each case a proper application of the Strickland standard and renders the cases compatible. The developments during the trial were distinct. Critical to the outcome of both cases was whether there were any unexpected developments during trial that justified the decision not to call the defendant. Both courts correctly analyzed the issue using the established standard for evaluating ineffective assistance of counsel claims and applied that standard to the differing factual situations.

In Ouber, the lack of unexpected developments during trial made the decision not to call the defendant ineffective just as the presence of unexpected developments in Bahtuoh validated the opposite conclusion. This key difference in the two trials not only explains the difference in the outcomes, but is in harmony with common sense. A defense attorney making a decision based on new information gained at trial should not be held as ineffective simply because their evaluation of the new information happened to lead to a conviction. Conversely, if an attorney makes an explicit promise to call the defendant and fails to fulfill that promise without cause, the attorney should be held accountable for that poor judgment.

Both courts correctly analyzed the ineffective assistance of counsel issue and the specific question addressed in these cases involving the promise to call the defendant as a witness is not left unresolved. The Bahtuoh court was able to clearly distinguish the facts of their case from the previous ruling in Ouber thus justifying their opposite holding. Both holdings can be properly applied to future cases involving ineffective assistance of counsel claims depending on the developments that take place during the trial.

Conclusion

The First and Eighth Circuits both correctly applied the Strickland standard in their review of the respective cases. The apparent split between the two courts on the ineffectiveness of counsel claims is instead the same analysis that rendered opposite conclusions. Those different holdings are merely based on factual differences in the two cases. The two decisions both stand for the central conclusion that the dispositive factor in determining ineffectiveness of counsel in the above situation is whether anything changed between the opening statement and the decision not to call the defendant as a witness at trial. If such a change or unexpected development occurs, counsel can reevaluate the situation and make an informed decision about the value of calling the defendant without being rendered as ineffective. On the other hand, if no such development exists, counsel will be found ineffective if he reneges on his promise.

[1] “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” U.S. Const. Amendment I

[2] The risk of harm to the defendant’s credibility through cross examination often outweighs any good will that can be established through direct.

[3] Ouber v. Guarino, 293 F.3d 19, 20 (1st Cir. Mass. 2002); Ineffective assistance of counsel is found when the attorney’s performance is considered not to have met the Sixth Amendment guarantee for assistance of counsel in defense at criminal trials.

[4] Bahtuoh v. Smith, 855 F.3d 868, 874 (8th Cir. Minn. 2017).

[5] Changed circumstances can be information that comes out during trial that was unknown to the attorney during opening statements or otherwise unforeseen events that develop throughout trial.

[6] Ouber, 293 F.3d at 20.

[7] Id.at 20.

[8] Ouber, 293 F.3d at 25.

[9] 466 U.S. 668, 687 (U.S. 1984).

[10] Id.

[11] Id.

[12] Ouber, 293 F.3d at 36.

[13] Id. at 23.

[14] Id. at 25.

[15] Id. at 28.

[16] Id. at 31.

[17] Ouber, 293 F.3d at 32.

[18] Strickland, 466 U.S. at 691.

[19] Ouber, 293 F.3d at 25.

[20] Strickland, 466 U.S. at 693-694.

[21] Ouber, 293 F.3d at 26.

[22] Id. at 21.

[23] Id. at 35.

[24] Id.

[25] Id.

[26] Bahtuoh, 855 F.3d at 874.

[27] Id.

[28] Id. at 872.

[29] Id.

[30] Bahtuoh, 855 F.3d at 873.

[31] Id.

[32] Id. at 872- 873.

I Want To Go Home: Determining Habitual Residence In International Custody Cases

Monica Welker, Associate Member, University of Cincinnati Law Review

Introduction

In 2000, Americans were glued to news outlets, following the story of Elián González. The previous November, the then-five-year-old escaped from Cuba on a raft with his mother, who drowned while attempting to flee Fidel Castro’s Cuba. His mother’s relatives in Miami were caring for him, but his father, in Cuba, wanted him back. It culminated with an FBI raid of his relatives’ home, and his forced return to Cuba.[1]

The international community sought to avoid child custody cases resorting to this type of international drama through the 1980 Hague Convention on Civil Aspects of International Child Abduction (“Convention”).[2] Its signatories agreed to discourage abduction in international custody disputes.[3] Under the Convention, a child should be retained in or returned to the child’s “habitual residence” to follow the rights of custody of that nation.[4] By design, the Convention did not define a habitual residence. The Convention’s accompanying report explained that “habitual residence” is a well-established concept and a “question of pure fact.”[5] The Convention wanted the courts to take the phrase at face value, and not to be influenced or defined by some domestic law statutes.[6] Therefore, it hoped the courts would adopt a flexible standard based on the factual meaning of the words “habitual residence.”[7]

This lack of clarity regarding how to determine the child’s true “home” has led to differing opinions over how to interpret the Convention and the equivalent U.S. statute enshrining it into U.S. law.  This is problematic, as Judge Kozinski of the Ninth Circuit opined, “without . . . consistency in [the Convention’s] application, parents are deprived of crucial information they need to make decisions.”[8]

Of all the methods available to determine a child’s habitual residence, the most reliable is that of the child’s perspective. It is the least complicated and produces the most logical conclusions.

Background

The Convention was created in 1980, and the United States signed onto it in 1981. It was codified in 1988 as the International Child Abduction Remedies Act (ICARA).[9] Procedurally, aggrieved parents who are citizens of signatory nations to the Convention can file a “petition for return” with their home nation’s central authority designated to handle cases arising under the Convention. This initiates a lawsuit in the nation where the child resides at that time. The first task of the court is to determine the child’s habitual residence, as that is where the child should be returned for a final custody determination. Unfortunately, The Convention and ICARA never defined “habitual residence” which has led to a split of opinion among United States circuit courts over how to determine a child’s habitual residence.

How Is A Child’s Habitual Residence Determined?

The Convention was deliberately vague to encourage a case-by-case analysis, and ICARA adopted the “habitual residence” language without further defining it.[10] The Ninth Circuit wrote that over time, courts would develop a standard for determining how to apply ICARA.[11] This has not happened. While the circuit courts reference each other, two broad standards have emerged.

The first is the child perspective approach. In this approach, a court determines the habitual residence primarily from the point of view of the child. This is not to say that a small child is asked to identify his habitual residence, but instead, an inquiry is conducted to determine the child’s degree of adjustment, and where his ordinary residence appears to be This approach is favored by the British courts and the Third, Fourth, Sixth and Eighth Circuits. The Seventh Circuit remains split on this issue.[12]

The second approach is the parental intent approach. It was first suggested in Mozes v. Mozes, and followed by the Second, Ninth and Eleventh Circuits. In this approach, a court looks at the parents’ last agreed upon habitual residence for the child. A child’s acclimation to an area is only a secondary consideration.

The two approaches are not mutually exclusive. Later cases often incorporate both and indicate which approach should take precedent.[14] Further evidence of the intersection of the two approaches lies in their agreement on what other factors should be considered when determining a child’s habitual residence. Both approaches agree that, in order for a child’s habitual residence to change, there must be both a change in geography and a passage of time to allow for acclimatization.[15]

The Child Perspective Approach

In Re: Bates, a famous British custody case involving a member of the band Duran Duran, the Royal Court of Justice established a definition that many US courts have cited.[16] It began its discussion of habitual residence by holding that there is no difference between an ordinary residence and a habitual residence.[17] The court quoted Shah v. Barnet London Borough Council, another British case, saying, “All that the law requires is that there is a settled purpose.”[18] This demonstrates that the earliest approaches to the matter were based on the ordinary, settled residence of the child and had no interest in developing a test based on anything else.

The first federal United States case to reach the appellate level was Friedrich v. Friedrich.[19] There, the court ruled that when determining habitual residence, a court “must focus on the child, not the parents, and examine past experiences, not future intentions.”[20] In other words, if a child is settled in Country A after a move, but her mom always intended for the family to return to Country B after two years, the child’s habitual residence is Country A.

Feder v. Evans-Feder was a Third Circuit case in 1995 that cited Friedrich and emphasized that a change in a child’s habitual residence could only be altered by a change in geography and the passage of time, not by changes in parental affection and responsibility.[21] This makes clear that the child’s perspective is given more weight than the parents’ intent in the Third Circuit.

Parental Intent Approach

The Mozes opinion inspired many courts to consider the parent’s intent as the dispositive factor when considering a child’s habitual residence. Reaching across the pond, Judge Kozinski explored Shah, where the court connected the “settled purpose” with an intent to settle in a particular habitual residence.[22] After reasoning that a settled purpose requires intent, Mozes ruled that the parents’ intent is superior to the child’s perspective, primarily due to the child’s immaturity.[23]

The Eleventh Circuit decided to use the parental intent approach in Ruiz v. Tenorio.[24] The per curiam opinion wrote that “the opinion of Judge Kozinski in Mozes is not only the most comprehensive discussion of the [determining habitual residence] but [it] also sets out the most appropriate approach.”[25]

Circuits that use the parental intent approach encourage examining the parents’ actions regarding resettling elsewhere. They look to whether the parents sold their old property, the type of visas they obtained in the new potential habitual residence, their understanding when they moved, and their last shared intention for their child. It puts more emphasis on the parents’ actions because uncovering how hesitant a parent was about moving abroad is difficult to prove. Selling property, however, is an objective sign that someone intends to be gone for quite some time.[26]

Discussion

The disagreement between the circuits centers on whether the child’s perspective or the parent’s last shared intent should be the dispositive factor when a court rules on a case. It might first be instructive to explore the plain meaning of the words “habitual residence.” Merriam Webster defines “habitual” normally as an action, but its third definition seems applicable. It reads “resorted to on a regular basis.”[27] Residence is defined as “the act or fact of dwelling in a place for some time.”[28] Reading these definitions together, the plain meaning of habitual residence is the fact of dwelling in a place for some time on a regular basis.

Although Kozinski found the child perspective approach flawed because it relied on the mental state of an immature child, his contention is not supported with any evidence. The child perspective approach merely seeks to determine where the child is most settled, not his subjective desires. It takes into account his friends, his school, his contacts, and where he is acclimated.

However, the proponents of the child perspective approach have found several problems with the parental intent approach. In Stern v. Stern, the court wrote that the Mozes approach undervalued the acclimation and perceptions of the child, who is the very focus of the Convention.[29] The Sixth Circuit was more specific in its criticism of Mozes, saying it “made seemingly easy cases hard and reached results that are questionable at best.”[30] It cited the Eleventh Circuit’s decision in Ruiz, where children that had lived primarily in Mexico almost four years had their habitual residence in the US because their parents had never agreed on their intent to stay in Mexico long term. They reached this conclusion despite their parents selling property, enrolling the children in school, and moving their belongings to Mexico.[31] The children’s perspective would have kept the children in Mexico, where they habitually resided.

The Mozes opinion is not without merit. It helps to clarify habitual residence with a hypothetical: what if a child is away at a two-month summer camp?[32] From the child’s perspective, the camp could potentially be his habitual residence. However, this hypothetical fails when one examines it from the passage of time element of determining a child’s habitual residence, as two months is not enough to make a new place one’s habitual residence unless one has nowhere else to go because one has sold their property and moved all of one’s belongings.

Overall, the biggest advantage to the child perspective approach is its position as the first opinion put forth by a U.S. court. The United States and British cases previously prioritized the child’s perspective when determining habitual residence. Mozes deviated from these precedents, an thus creating unnecessary confusion.

Conclusion

Of the fifteen cases most cited in US circuit courts, only four use the parental intent approach, while the rest use the child perspective approach. This is likely because the child perspective approach is most likely to identify the best interest of the child. The Supreme Court has not yet granted certiorari on a case specifically dealing with habitual residence. Should it choose to, the wealth of definitions it has to choose from among the circuits should hopefully result in a decision that reflects the child’s perspective.

[1] Rick Bragg, The Elian Gonzalez Case: The Overview; Cuban Boy Seized by U.S. Agents and Reunited with his Father, New York Times, April 23, 2000, http://www.nytimes.com/2000/04/23/us/elian-gonzalez-case-overview-cuban-boy-seized-us-agents-reunited-with-his-father.html?mcubz=3.

[2] Hague Convention on the Civil Aspects of International Child Abduction, Oct. 15, 1980, Preamble, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49. [hereinafter Hague Convention]

[3] Id. arts. 1-2.

[4]Id., art. 3.

[5] Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention (official English translation), ⁋66, 1982. [hereinafter Perez-Vera Report]

[6] Linda Silberman, Brigitte M. Bodenheimer Memorial Lecture on the Family: Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049, 1064 (2005) (Professor Silberman was a part of the team that adapted the Convention into US law).

[7] Mozes v. Mozes, 239 F. 3d 1067, 1072 (9th Cir. 2001).

[8] Id.

[9] Tai Vivatvaraphol, Note: Back to Basics: Determining a Child’s Habitual Residence in International Child Abduction Cases Under the Hague Convention, 77 Fordham L. Rev. 3325, 3326 (2009).

[10] supra n. 6.

[11] Mozes, 239 F. 3d 1072.

[12] Sorenson v. Sorenson, 559 F. 3d 871, 873 (8th Cir. 2009), Robert v. Tesson, 507 F. 3d 981, 989 (6th Cir. 2007), Miller v. Miller, 240 F. 3d 392, 400 (4th Cir. 2001).

[13] Gitter v. Gitter, 396 F. 3d 124, 131 (2nd Cir 2005), Ruiz v. Tenorio 392 F. 3d 1247, 1252 (11th Cir. 2004).

[14] Feder v. Evans-Feder, 63 F. 3d 217, 224 (3rd Cir. 1995).

[15] Barzilay v. Barzilay, 600 F. 3d 912, 919 (8th Cir. 2010), Gitter v. Gitter, 396 F. 3d 124, 139 (2nd Cir 2005).

[16] Mozes, 239 F. 3d at 1073-1074.

[17] Re: Bates, No. CA 122.89, High Court of Justice, Family Div’n Ct. Royal Court of Justice (UK 1989).

[18] Id. quoting Shah v. Barnet London Borough Council and other appeals, 1 All E.R. 226, 233 (Eng. H.L. 1983)

[19] Friedrich v. Friedrich, 983 F. 2d, 1398, 1401 (6th Cir. 1993).

[20] Id. at 1401.

[21] 63 F. 3d at 222.

[22] Mozes, 239 F. 3d at 1073-1074.

[23] Id., at 1076.

[24] Ruiz v. Tenorio, 392 F. 3d 1247, 1252 (11th cir. 2004).

[25] Id.

[26] Gitter, 396 F. 3d at 132.

[27] Habitual, Merriam-Webster (online ed.) (Sept. 27, 2017), https://www.merriam-webster.com/dictionary/habitual.

[28] Residence, Merriam-Webster (online ed.) (Sept. 27, 2017), https://www.merriam-webster.com/dictionary/residence.

[29] 639 F. 3d 449, 452 (8th Cir. 2011).

[30] Robert v. Tesson, 507 F. 3d 981, 991 (6th Cir 2007).

[31] Id. [see supra, note 24.]

[32] Mozes, 239 F. 3d at 1074.