Administrative Law, Drug Patents, and Tribal Sovereign Immunity: Saint Regis Mohawk Tribe Files Cert in Pharmaceutical Patent Case

Megan Dollenmeyer, Associate Member, University of Cincinnati Law Review

A private patent with sovereign immunity from litigation and administrative proceedings would be a powerful tool. Allergan may have found a way to achieve this goal. In anticipation of an inter partes review (“IPR”) before the Patent Trial and Appeal Board (“PTAB”),[1] the pharmaceutical company, Allergan, transferred patents for the prescription dry-eye drug, Restasis, to the Saint Regis Mohawk Tribe in New York.[2] Under the deal, the Tribe granted Allergan an exclusive license “for all FDA-approved uses in the United States,” but retained all other rights to the patent not explicitly granted to Allergan.[3] The Saint Regis Mohawk Tribe and Allergan assert that tribal sovereign immunity protects the Tribe from suits and IPR proceedings by generic drug companies seeking to challenge the patent.[4]

In the 2018 appeal of the PTAB’s decision, the U.S. Court of Appeals for the Federal Circuit held that the tribe cannot claim sovereign immunity to protect drug patents in an administrative proceeding.[5] The St. Regis Mohawk Tribe and Allergan later filed a writ of certiorari in December 2018.[6] Although the Federal Circuit Court acknowledged tribal sovereign immunity briefly, it ultimately distinguished the doctrine inapplicable, as the PTAB’s IPR decision was a “hybrid proceeding,”[7] which was “less like a judicial proceeding and more like a specialized agency proceeding.”[8] The petitioners argue in their cert petition that the Appellate Court’s decision directly contradicts the Supreme Court’s holdings in other cases, which deemed the IBR’s more similar to proceedings between civil litigants rather than an agency proceeding.[9]

Aside from issues of administrative law, this case raises issues of tribal sovereignty. Per United States v. Wheeler, Indian tribes have “inherent powers of a limited sovereignty which has never been extinguished.” [10]In 2014, the Court held that “[a]mong the core aspects of sovereignty that tribes possess . . . is the ‘common law immunity from suit traditionally enjoyed by sovereign powers.’”[11] Only Congress has the authority to limit tribal sovereign immunity and must do so explicitly.[12] Among other things, immunity protects tribes from suits filed by states and extends to entities in which the tribe is involved, even if that activity is commercial.[13] For a tribe to waive sovereign immunity absent congressional action, the waiver must be “clearly done.”[14] Moreover, a Ninth Circuit decision held that a “tribe’s participation in an administrative decision does not waive tribal immunity in an action filed by another party seeking review of the agency’s decision.”[15]

While the Federal Circuit appeared to limit its decision to tribal sovereign immunity, the decision may also impact state sovereign immunity. In 2017, the PTAB decided that state sovereign immunity precluded the company Covidien from challenging a University of Florida patent.[16] Given the wealth of case law reiterating tribal sovereign immunity without express congressional abrogation, in theory, the Supreme Court should side with the tribe. However, given the 5-4 Bay Mills decision in 2014 and the changes in Justices since then, it is unclear how the Court will determine whether tribal sovereignty immunity applies in administrative proceedings.

[1] The America Invents Act authorizes the PTAB to hear IPR proceedings, which are administrative hearings brought by private parties challenging a patent. 31 U.S.C. §§ 311-314 (2011). Appeals to IPR decisions are still heard by Federal Circuit Courts and parties may still issue patent challenges in Circuit Courts rather than via IPR hearings. Id. at §§ 315, 319.

[2] Robert Pear, Indian Tribe Joins Big Pharma at the Supreme Court, Defending a Lucrative Deal, The New York Times (Jan. 26, 2019),

[3] Petition for Writ of Certiorari, St. Regis Mohawk Tribe v. Mylan Pharms., 896 F.3d 1322 (Fed. Cir. 2018) (No. 18-899).  

[4] See id. at 3.

[5] See St. Regis Mohawk Tribe. Mylan Pharms., Inc., 896 F.3d 1322, 1326 (Fed. Cir. 2018).

[6] See Petition for Writ of Certiorari.

[7] St. Regis Mohawk Tribe, 896 F.3d at 1326.

[8] Id. (quoting Cuozzo Speed Techs., LLC v. Lee,136 S. Ct. 2131, 2143 (2016)).

[9] See Petition for Writ of Certiorari at 2.

[10] 435 U.S. 313, 322-323 (1978).

[11] Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 782 (2014) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

[12] Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014).

[13] Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751 (1998).

[14] Cohen’s Handbook of Federal Indian Law §7.05[1][c].

[15] Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994).

[16] Matthew Bultman, PTAB Says State Sovereign Immunity Applies to IPRs, Law360 (Jan. 26, 2017),

Deep Fakes: Finding the Balance Between National Security and Freedom of Speech

Megan Kauffman, Associate Member, University of Cincinnati Law Review

Deep fakes are computer-generated videos that are created to make it appear that a person said or did something that he or she never did.[1] The latest technological advances allow for a creator to impose a figure’s face onto a previously recorded video (face-swapping)[2] or to control a person’s facial expressions and make them say whatever the creator wants.[3] Deep fakes first made main stream media after internet users were using the programs to import celebrity faces into pornographic videos on Reddit.[4] After being banned from the website, the creators released an app called FakeApp, which allows people to easily create deep fakes themselves.[5] In May 2018, a Belgian political party created a video which appeared to show Donald Trump making comments about climate change that were directed towards Belgian citizens.[6] After receiving hundreds of comments trashing the President of the United States, the political party was forced to admit that it had created the digital replication and released it as a way to get people to sign its petition.[7] But imagine if the creator had been a true enemy of the United States or a political opponent who was looking to cause backlash across the country. As of today, the technology used in deep fake creations is not advanced enough to pass through digital screenings, but the creations can appear real enough to a human viewer.[8] These detections allow for websites to identify and pull any deep fakes that have been posted on their sites. At what point should the legislature step in to ensure that the country’s national security is protected against computer generated fake videos of politicians?

Currently there is no legislation that has passed federally or statewide that prohibits the creation of deep fakes.[9] While there have been several proposed bills, nothing has actually been passed in order to enact some safeguard against this type of technology.[10] Legislators face a couple of challenges in banning deep fakes, including a First Amendment issue of freedom of speech and the “fair use” doctrine in copyright law.[11] In the cases of pornographic deep fakes, courts have allowed for individuals to sue under tortious claims, including false light and defamation, and under copyright claims.[12] Courts have recognized, however, that there is a need to balance a plaintiff’s right to privacy and ownership with a defendant’s right to creation under the First Amendment.[13] It will be interesting to see if the courts maintain this balance when the deep fakes involve politics instead of pornography.

There is a discernable national security interest in restricting or banning deep fakes with regards to politics. A foreign or political adversary could use computer generated videos posted on the internet to cause hysteria or dissent. Although technological screenings can determine that the videos are fake, the public might not be able to easily recognize them as forgeries, especially in a landscape where fake news, pictures, and videos are already prevalent and readily believed. However, the Constitutional bar for the restriction of free speech is incredibly high.[14] The government would have to show a compelling governmental interest for legislation passed restricting the creation of political deep fakes and would have to narrowly tailor that legislation to ensure that citizens’ freedom of speech is not being infringed. It is possible that in the future deep fakes could become so technologically advanced that they could be undetected by computer algorithms. If websites are not able to distinguish real videos from fakes, they will not be able to ensure that fake videos are not being spread to the masses. The release of deep fakes that are so seamlessly created to appear real could pose a true threat to the security of the country. Hopefully, by then legislation will have also advanced to combat this p

[1] John Villasenor, Artificial Intelligence, Deepfakes, and the Uncertain Future of Truth, Brookings (Feb. 14, 2019), available at

[2] Id.

[3] Oscar Schwartz, You Thought Fake News Was Bad? Deep Fakes are Where Truth Goes to Die, The Guardian (Nov. 12, 2018), available at

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Villasenor, supra note 1.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

Still No Clear Test for Courts to Determine Whether Someone Has an Intellectual Disability for Sentencing Purposes

Emily Westerfield, Associate Member, University of Cincinnati Law Review


In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment’s prohibition on cruel and unusual punishment rendered people with intellectual disabilities ineligible for the death penalty.[1] The Court reasoned that the execution of criminals with intellectual disabilities would not “measurably advance the deterrent or the retributive purpose of the death penalty.”[2] In interpreting the Eighth Amendment’s ban on cruel and unusual punishment in this context, the Court drew from its opinion in Trop v. Dulles, which provides that “‘the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’”[3] Thus, the Court in Atkins concluded that whether a punishment qualifies as excessive under the Eight Amendment ought to be determined by contemporary standards, rather than the standards in effect at the time the Bill of Rights was ratified.[4] Although the Court ultimately decided that the execution of criminals with intellectual disabilities constituted a violation of the Eighth Amendment, the Court also held that the states would be individually responsible for “developing appropriate ways to enforce the constitutional restriction.”[5] Thus, the Court effectively left the question of whether a criminal who would otherwise be eligible for the death penalty has an intellectual disability to the states.

The Supreme Court’s holding in Atkins became relevant in the Court’s recent decision in Moore v. Texas. When Moore was first heard in the state habeous court, Moore presented affidavits and testimony from members of Moore’s family, former counsel to Moore, and several court-appointed experts in the mental health field.[6] The record indicated that Moore had “significant mental and social difficulties at an early age.”[7] Specifically, the evidence demonstrated that, at thirteen years of age, Moore “lacked a basic understanding of the days of the week, the months of the year,”[8] could “scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition,”[9] and could not keep up with the rest of his classmates due to his “limited ability to read and write.”[10] In the state habeous  court’s assessment of Moore’s mental capacity, it also considered the fact that Moore dropped out of school after failing every subject when he was in the ninth grade, and that Moore proceeded thereafter to live on the streets and subsist in part off of food from trash cans, despite suffering multiple instances of food poisoning.[11] Based on that evidence, the state habeous court held that Moore did indeed have an intellectual disability and that, therefore, sentencing him to the death penalty would violate the Eighth Amendment under the Supreme Court’s holding in Atkins.[12]

When Moore reached the Texas Court of Criminal Appeals in 2015, that court reversed the decision of the state habeous court, which held that Moore had an intellectual disability and, therefore, was not eligible for the death penalty under the Eighth Amendment’s ban on cruel and unusual punishment.[13] When Moore appealed to the Supreme Court, the Court vacated the decision of the Texas Criminal Court of Appeals and remanded the case for further proceedings not inconsistent with its opinion.[14] Before reaching that conclusion, the Court evaluated the three-prong test—derived from publications from the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association—that both the state habeous court and the appeals court used to determine whether Moore had an intellectual disability.[15] Pursuant to that test, in order to determine that someone has an intellectual disability, the court must find the following: (1) deficits in intellectual functioning; (2) adaptive deficits, “assessed using both clinical evaluation and individualized . . . measures;”[16] and (3) that the onset of those deficits took place when the defendant was a minor.[17] The Court agreed with the appeals court’s conclusions that Moore was a “borderline case” with regard to the first criteria and that, with regard to the third criteria, the onset of any intellectual deficits took place while Moore was still a minor.[18] Thus, the second criteria became the determinative factor in determining whether Moore was, indeed, intellectually disabled. The Court took issue with the appeals court’s analysis of the second criteria.[19]

With regard to the second criteria, the Court’s first majority opinion indicated that, according to the American Association on Intellectual and Developmental Disabilities, “clinicians look to whether an individual’s adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical).”[20] While the trial court determined that Moore “fell roughly two standard deviations below the mean in all three skill categories,”[21] the appeals court ruled that Moore failed to prove by a preponderance of the evidence that he exhibited the adaptive deficits necessary to be considered intellectually disabled.[22]

When the Supreme Court first heard Moore, the majority opinion identified five errors with the appeals court’s analysis of Moore’s adaptive deficits.[23] First, the Court majority indicated that the appeals court placed undue emphasis on Moore’s adaptive strengths instead of focusing its analysis on Moore’s adaptive deficits.[24] Second, the majority took issue with the appeals court’s consideration of the adaptive strengths Moore exhibited while he was in prison.[25] In establishing that part of the appeals court’s opinion as error, the Court majority cited a publication by the American Psychiatric Association, which indicated the tendency of clinicians to “caution against reliance on adaptive strengths developed in a controlled setting,”[26] such as a prison.[27] Third, the Court majority found that the appeals court erroneously determined that Moore’s difficulties in school and the abuse he suffered as a child, experiences which are considered risk factors for intellectual disability by the medical community at large, were mostly irrelevant to Moore’s intellectual capacity.[28] Fourth, the appeals court required Moore to demonstrate that his adaptive deficits were not related to a personality disorder, without considering the brief presented to the state habeous court from the American Psychological Association providing that clinicians recognize that someone with a personality disorder may very well have an intellectual disability in addition to the personality disorder.[29] Finally, the Court majority took issue with the appeals court’s reliance on a prior Texas case, ex parte Briseno.[30]

            In Briseno, the Texas Court of Criminal Appeals provided several factors for determining whether someone has an intellectual disability, including: (1) whether those who were close to the person believed that he had mental or intellectual deficits; (2) whether the person could independently make and carry out plans; (3) whether the person exhibited any leadership capabilities; (4) whether the person exhibited a rational response to “external stimuli;” (5) whether the person was capable of answering questions “coherently” and “rationally;” (6) whether the person could effectively tell lies; and (7) whether the specific offense at hand was the result of “forethought, planning, and complex execution of purpose.”[31] The Court majority’s issue with the appeals court’s consideration of the Briseno factors in its analysis of Moore’s intellectual capacity was two-fold. First, the Briseno factors were not based in “prevailing medical practice.”[32] Second, the factors included the perceptions of people with no medical expertise with regard to the issue of intellectual capacity.[33] Thus, in the Supreme Court’s first majority opinion for Moore, the Court created a caveat to the Court’s holding in Atkins. The Court held that although Atkins reserved the task of deciding how exactly to determine whether someone has an intellectual disability for sentencing purposes for the state courts, the state court’s determination of whether someone has an intellectual disability “must be informed by the medical community’s diagnostic framework.”[34]

Ultimately, the aforementioned errors that the Supreme Court found with the appeals court’s analysis led the Court to vacate the appeals court’s holding and remand the case for further proceedings not inconsistent with its opinion.[35] When the appeals court reconsidered the issue, however, it again decided that Moore did not have an intellectual disability and was, therefore, eligible for the death penalty.[36]

The Majority

Just last month, the Supreme Court granted Moore’s petition for certiorari. Ultimately, the Court majority found that the decision of the appeals court failed to apply the doctrine it set forth in its prior majority opinion concerning how courts ought to determine whether a defendant has an intellectual disability for the purpose of determining whether imposing the death penalty would be in line with the Eighth Amendment and the Court’s holding in Atkins.[37] Specifically, the majority concluded that the appeals court’s second opinion on the matter borrowed too much from the aspects of its first opinion that the Supreme Court previously determined were error.[38] Furthermore, the majority held that “extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than the trial court.”[39] Thus, the majority held that, based on the record from the state habeous court, Moore sufficiently demonstrated that he has an intellectual disability and, therefore, is ineligible for the death penalty under the Eighth Amendment.[40]

            While the majority found slight differences between the appeals court’s first and second opinions, it determined that the appeals court’s opinion employed much of the same analyses that the Court found problematic in its first opinion.[41] Specifically, the Court majority found four issues with the appeals court’s holding: (1) the appeals court placed too great an emphasis on Moore’s adaptive strengths rather than on his adaptive deficits;[42] (2) the appeals court unduly relied on the improvements Moore exhibited while he served time in prison;[43] (3) the appeals court once again deviated from prevailing medical practice and analysis when it distinguished between Moore’s “deficits in general mental abilities”[44] and Moore’s “emotional problems,”[45] in evaluating the cause of Moore’s “deficient social behavior”;[46] and (4) the appeals court relied on the Briseno factors in reaching its conclusion that Moore did not have an intellectual disability for sentencing purposes.[47]

With regard to the Court majority’s first issue with the appeals court’s decision, the majority indicated that the appeals court failed to consider a significant amount of evidence of Moore’s adaptive deficits which had been considered in the state habeous court.[48] For example, the appeals court did not utilize evidence that Moore was barely able to read at the second-grade level by the time he was in the sixth grade and Moore’s apparent difficulty to understand and respond to members of his family.[49] The appeals court also failed to consider the extensive coaching Moore had received from his lawyers before providing what the appeals court considered to be “coherent testimony.”[50] Thus, while the appeals court forewent noting a variety of scenarios pertaining to Moore’s adaptive deficits throughout Moore’s life, the appeals court alluded to several examples of Moore exhibiting adaptive strengths, many of which took place during the time Moore spent in prison.

With regard to the second issue, the Court majority specified that the “length and detail of the [appeals] court’s discussion on [Moore’s improvements in prison] is difficult to square with our caution against relying on prison-based development.”[51] Thus, the majority indicated that while improvements made in prison can be of relevance in determining someone’s intellectual capacity for purposes of sentencing under the Eight Amendment, the appeals court took that part of its analysis too far. Based on the majority’s analysis of the appeals court’s decision, it seems that the appeals court drew conclusions of great significance with regard to Moore’s intellectual capacity from relatively insignificant instances of Moore’s conduct while in prison. For example, the appeals court determined that Moore’s commissary purchases demonstrated that Moore had a command of elementary math.[52] The appeals court also concluded that Moore’s occasional refusal to clean up spilled food, shave, get a haircut, and sit down when told demonstrated his leadership abilities.[53]

With regard to the third issue, the Court majority asserted that the appeals court once again erroneously determined that Moore would be required to prove that Moore’s adaptive deficits resulted from from an intellectual disability, as opposed to emotional issues.[54] In so holding, the majority concluded that the appeals court effectively ignored the amicus brief from the American Psychological Association, which provided that the presence of personality disorders and other issues involving one’s mental health does not indicate a lack of an intellectual disability.[55]

With regard to the Court majority’s fourth and final issue with the appeals court’s second opinion for Moore, the majority concluded that the appeals court employed several factors in its second analysis of Moore’s intellectual capacity that closely resembled the Briseno factors.[56] The majority held that, while aspects of this part of the appeals court’s analysis might be relevant to determining Moore’s intellectual capacity, the appeals court’s analysis still came too close to the Briseno factors.[57] This part of the majority’s opinion is one of the most prominent examples of the problematic ambiguity of the majority’s opinion.

The Dissent

The ambiguity of the majority’s first and second opinions for Moore is the dissent’s predominant issue with the majority’s evaluation of the appeals court’s second ruling on Moore’s intellectual capacity. According to the dissent, the ambiguous nature of the majority’s first opinion led to a great “lack of guidance [offered] to states seeking to enforce the holding in Atkins.”[58] The dissent further indicated that the majority’s second opinion failed to make its first opinion any clearer.[59] According to the dissent, for example, while the majority held that the appeals court “‘overemphasize[d]’ adaptive strengths [and] place[d] too much ‘stress’ on improved behavior in prison,”[60] the majority failed to set any guidelines for determining when proper emphasis would become undue overemphasis on those factors.[61]

Moreover, the dissent took issue with the majority’s decision to correct the factual findings made by the appeals court and reverse the judgment.[62] The dissent cited Supreme Court precedent in concluding that the majority’s decision was distinct from the Court’s “usual practice.”[63] In United States v. Johnson, for example, the Court held that it is not the Court’s rule, after granting certiorari, to “‘review evidence and discuss specific facts.’”[64] Instead, according to the dissent, the majority Court should have vacated the judgment of the appeals court, set forth a clear standard for the appeals court to follow, and remand the case to the appeals court so that it may take it upon itself to apply that standard.[65]


            Once again, it seems that the Supreme Court majority has failed to provide a clear path for resolving the issue of a person’s intellectual capacity for the purpose of determining whether he or she may be sentenced to the death penalty under the Eighth Amendment’s prohibition on cruel and unusual punishment. The lack of enlightenment in the Court majority’s second opinion will undoubtedly pose difficulties for other state courts that will inevitably confront this issue in the future. Thus, the dissent’s reservations with the majority’s decision to take on the appeals court’s role after the appeals court failed to apply whatever standard could have been drawn from the vague doctrines provided by the majority’s first opinion seems well-founded.




[1] Atkins v. Virginia, 536 U.S. 304, 321 (2002).

[2] Id.

[3] Id. at 311-12 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)).

[4] Atkins, 536 U.S. at 311.

[5] Id. at 317.

[6] Moore v. Texas, 2019 U.S. LEXIS 821, 1 (2019).

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 2.

[11] Id.

[12] Id.

[13]Id. at 1.

[14] Id. at 1.

[15] Id. at 2-3.

[16] Id.

[17] Id.

[18] Id. at 3.

[19] Id.

[20] Id. at 3-4.

[21] Id. at 4.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id. at 4-5.

[29] Id. at 5.

[30] Id. at 5-6.

[31] Id. at 5-6 (quoting ex parte Briseno, 235 S.W.3d 1, 8-9 (Texas Crim. App. 2004).

[32] Id. at 6.

[33] Id.

[34] Id.

[35] Id. at 7.

[36] Id. at 18.

[37] Id. at 1.

[38] Id. at 13-14.

[39] Id.

[40] Id. at 14.

[41] Id. at 8-9.

[42] Id. at 9.

[43] Id. at 10.

[44] Id. at 11.

[45] Id. at 11.

[46] Id. at 11.

[47] Id. at 12-13.

[48] Id. at 9-10.

[49] Id. at 9-10.

[50] Id. at 10.

[51] Id. at 11.

[52] Id. at 10.

[53] Id. at 11.

[54] Id. at 11.

[55] Id. at 11.

[56] Id. at 12-13.

[57] Id.

[58] Id. at 15-16.

[59] Id. at 16.

[60] Id.

[61] Id.

[62] Id. at 16-17.

[63] Id. at 17.

[64] Id. (quoting United States v. Johnson, 268 U.S. 220, 227 (1925)).

[65] Id.

Lake Erie Given Status by Citizens of Toledo, But Questions Arise

Adam Ares, Associate Member, University of Cincinnati Law Review

On February 26, the residents of Toledo, Ohio passed a historic referendum that would grant Lake Erie the same legal status and rights in courts as individuals.[1] In an effort to improve the “failing health” of Lake Erie,[2] local conservation organizations proposed the Lake Erie Bill of Rights Charter Amendment.[3] The amendment would grant Lake Erie “rights normally associated with those granted to a person[.]”[4] This article will (1) provide a brief background of the events that led to the referendum; (2) summarize the amendment and the rights that it grants Lake Erie; and (3) highlight the reactions and pending litigation to the amendment.

Toledo, which sits on the shores of the western basin of Lake Erie, has experienced many problems with toxic algae blooms in Lake Erie over the past several years.[5] The primary cause of the harmful algae blooms has been attributed to nitrogen and phosphorous fertilizer runoff from nearby farms within the Lake Erie watershed.[6] The worst of the algae blooms resulted in the 2014 Toledo Water Crisis.[7] The crisis occurred when toxic blue-green algae was detected in the city’s water treatment facility, resulting in the city issuing a three day “do not drink” advisory leaving 500,000 people without clean water.[8] Following the incident, the Toledoans for Safe Water was formed, with the goal of cleaning up and protecting Lake Erie.[9] After several years, the group was able to bring the Lake Erie Bill of Rights Charter Amendment to the ballot this February.[10] In addition to the legal implications of the amendment, supporters believe that the results of the election make clear that Toledoans will no longer tolerate environmental degradation of the lake.[11]

The amendment itself embodies the “rights of nature” movement that began to gain traction in the 1970s and recently has seen a resurgence.[12] The Supreme Court held in 1972 in Sierra Club v. Morton that nature does not, on its own, have standing to sue for its own preservation.[13] However, in recent years there have been several cases around the globe in which the “rights of nature” argument has been successful in courts. In 2008, Ecuador included “rights of nature” ideals in its constitution.[14] Additionally, courts in New Zealand, Colombia, and India have all recognized the rights of forests and rivers in various cases.[15] The Lake Erie Bill of Rights follows in the footsteps of the “rights of nature” movement gaining traction globally. The amendment establishes that Lake Erie

has suffered for more than a century under continuous assault and ruin due to industrialization, is in imminent danger of irreversible devastation due to continued abuse by people and corporations enabled by reckless government policies, permitting and licensing of activities that unremittingly create cumulative harm, and lack of protective intervention.[16]

The proposal further provides that the amendment “establishes irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, [and] a right to a healthy environment for the residents of Toledo[.]”[17] The amendment goes on to state that

[t]he Lake Erie Ecosystem may enforce its rights, and this law’s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City in the Lucas County Court of Common Pleas, General Division. Such court action shall be brought in the name of the Lake Erie Ecosystem as the real party in interest.[18]

Furthermore, any damages shall be measured by the cost of restoring the lake and all awarded damages shall go solely towards restoration of Lake Erie.[19] The measure became effective on February 26 immediately after approval by the residents of Toledo.[20]

The amendment was put to a vote during a special election and passed with 61% of the vote.[21] However, voter turnout for the special election was less than 9% of registered voters.[22]

The passage of the law has ignited an immediate response from the agricultural industry within Ohio. Already, a lawsuit has been filed by Drewes Farms, based out of northwest Ohio, claiming that the Lake Erie Bill of Rights is unconstitutional.[23] The complaint states, in part, that the law is unconstitutional because it violates the “Fifth Amendment protection against vague laws by exposing Drewes Farms to strict criminal liability and massive damages and fines[.]”[24] Drewes Farms has claims that it has been deprived of its rights without due process.[25] In addition to the question of the constitutionality of the law, the Lake Erie Bill of Rights is also expected to be attacked for overstepping the city’s authority.[26] Jonathan Adler, a law professor at Case Western Reserve University, argues that “[t]he people of one city don’t get to declare how a given resource could be used or protected when that resource is shared with lots of other jurisdictions[.]”[27] Given the Supreme Court precedent in Sierra Club v. Morton, it seems likely that the new law will be found unconstitutional. However, Toledoans for Safe Water said that they are prepared to face any legal challenges and hope that the new Bill of Rights brings about discussion and change.[28]

[1] Jason Daley, Toledo, Ohio Just Granted Lake Erie the Same Legal Rights as People, Smithsonian Magazine (Mar. 1, 2019),

[2] Timothy Williams, Legal Rights for Lake Erie? Voters in Ohio City Will Decide, N. Y. Times (Feb. 17, 2019),

[3] Smithsonian Magazine, supra note 1.

[4] Williams, supra note 2.

[5] Smithsonian Magazine, supra note 1.

[6] Pam Wright, Toledo, Ohio Votes to Give Lake Erie Legal Status, The Weather Channel (Mar. 1, 2019),

[7] Id.

[8] Smithsonian Magazine, supra note 1.

[9] Id.

[10] Id.

[11] The New York Times, supra note 2.

[12] Sigal Samuel, Lake Erie Just Won the Same Legal Rights as People, Vox (Feb. 26, 2019, 11:00 PM),

[13] Id.

[14] Id.

[15] Id.

[16] Lake Erie Bill of Rights, Ballot Initiative, City of Toledo (2019).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Smithsonian Magazine, supra note 1.

[22] Id.

[23] Plaintiff’s Complaint at 6, Drewes Farms P’ship. v. City of Toledo, OH, (No. 3:19-cv-00434-JZ) (2019).

[24] Id.

[25] Id.

[26] Associated Press, Farmers Sue to Stop Measure Giving Lake Erie Legal Rights, The Washington Post (Mar. 2, 2019),

[27] Id.

[28] Id.

Conceptualizing “Submission to Police Authority” After Hodari D.

John Simon, Associate Member, University of Cincinnati Law Review


On the evening of May 2014, Officer Lattanzio sat in his patrol car in front of the Bridgeport, Connecticut Police Department.[1] An anonymous woman drove up next to his vehicle to inquire about the process of amending a police report.[2] During this interaction, the woman provided Officer Lattanzio with a tip that “there was a man nearby named Branden who had a gun inside a black bag.” [3]The woman pointed down the street, but Officer Lattanzio did not see anyone.[4] The woman left without providing a name.[5] In response to the tip, Officer Lattanzio drove in the direction that the woman pointed eventually spotting an individual, Huertas, a block away.[6] Huertas stood on a street corner carrying a black bag. Officer Lattanzio turned his car driving the wrong way down a one-way street toward Huertas.[7] As he pulled up on the street corner, the patrol car’s spotlight was flipped on.[8] Officer Lattanzio questioned Huertas about the tip for approximately one minute; Huertas cooperated during this time.[9] However, as Officer Lattanzio exited his vehicle, Huertas fled.[10] Police later apprehended and arrested Huertas, and recovered his black bag, which had been discarded during the flight, that contained a gun.[11]

Huertas’ case presents a dilemma within Fourth Amendment jurisprudence regarding when an individual has been seized. Although the Supreme Court has held that for there to be a seizure “there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s ‘show of authority’ to restrain the subject’s liberty,”[12] circuit courts are divided as to what constitutes submission to police authority.[13]

Without a clear answer, neither law enforcement nor citizens can be certain when a “forceless” law enforcement-citizen encounter falls within the purview of the Fourth Amendment. Moreover, the lack of clarity has pushed some circuits to adopt restrictive interpretations of submission to police authority which is contrary to Fourth Amendment caselaw. At the same time, law enforcement certainly has public safety concerns, as it pertains to official conduct, which cannot effectively be served while the circuit split exists. While the law remains unclear, constitutional protections and the interests of law enforcement suffer. Based upon its well-balanced approach to the issue of submitting to police authority, courts should follow the lead of the D.C. Circuit which maintains that a defendant submits to police authority when that defendant complies with police orders.

Procedural Posture

The Government charged Huertas with unlawful possession of a firearm in violation of 18 U.S.C. §§ 922 and 924.[14] Huertas subsequently moved to suppress the black bag evidence arguing that the black bag, and its contents, constituted the “fruit of an illegal seizure of his person.”[15] Supporting his contention, Huertas pointed to the fact that he had been seized by Officer Lattanzio when interrogated on the sidewalk underneath the patrol car’s spotlight.[16] Additionally, Huertas argued that the tip that Officer Lattanzio received was uncorroborated and insufficient to justify the seizure.[17] Therefore, the black bag, and its contents, should be excluded.

Alternatively, the Government presented two arguments: (1) that Officer Lattanzio conducted an investigative stop based on reasonable suspicion; and (2) that Officer Lattanzio’s attempted stop of Huertas did not amount to a seizure because Huertas fled.[18]

The district court ultimately denied the motion to suppress holding that “a suspect must do more than halt temporarily; he must submit to police authority, for ‘there is no seizure without actual submission.’”[19] Following the Second Circuit’s jurisprudence, the district court noted that a brief stop and verbal exchange do not constitute submission, and since a brief stop and verbal exchange occurred in Huertas’s case, the seizure did not occur until police arrested Huertas after flight.[20] Thus, the court denied the motion holding that no seizure occurred prior to Huertas’ flight. Huertas pled guilty to his charge and appealed the suppression ruling to the Second Circuit.[21]


Analytical Framework of the Seizure of a Person

The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[22] While the Supreme Court’s interpretation of the Fourth Amendment continually changes—in part depending upon the composition of the Court—the basic requirements of a Fourth Amendment violation remain, more or less, constant.[23] To plausibly claim that the Fourth Amendment has been violated, the claimant must: (1) show that either or search or seizure occurred; and (2) demonstrate that the search or seizure was unreasonable.[24] Since the circuit split pertains solely to the issue of a “seizure,” this piece will examine only that prong.

Because a claim must first show that a seizure occurred, the first question that must be addressed is: what constitutes a seizure under the Fourth Amendment? In the latter half of the 20th century, the Supreme Court struggled to define a seizure so that the interests between citizens and police were balanced.

The Court’s framework for modern seizure analysis came in Terry v. Ohio, in which the petitioner challenged the police’s “stop and frisk” investigatory procedure.[25] While the Court confronted the police conduct in the moments leading up to an individual’s brief detention, the discussion provided an examination of the term seizure. Regarding the claim that the police seized the petitioner, the Court stated: “…the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime—‘arrests’ in traditional terminology. [W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”[26]

A decade later, the Court provided additional depth to its prior definition of seizure. In U.S. v. Mendenhall, DEA agents approached the respondent in an airport concourse, identified themselves as federal agents, and checked the respondent’s identification.[27] Unsatisfied with her responses to their questions, the agents asked the respondent to accompany them to the DEA’s airport office.[28] In the office, the respondent consented to a strip search and agents discovered narcotics.[29] Making its way up to the Supreme Court, the government called upon the Court to address whether the initial stop in the airport concourse constituted a seizure.[30] The Court concluded that no seizure occurred.[31]

Analyzing the case, the Court generalized its view of the term seizure noting that it “adhere[s] to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.”[32] According to the Court, the Fourth Amendment does not preclude all contact between law enforcement and citizens especially considering that legitimate law enforcement practices require street encounters with citizens.[33] Therefore, a seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”[34] The inquiry shifted to an examination of the totality of the circumstances. The Court set forth several factors to be considered when applying this “reasonable person” test: “…the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”[35] The Court intended for the test to apply objectively—strictly to the facts presented.

Under the facts in Mendenhall, the respondent presented no objective reason to believe that she was not free to leave.[36] While the Court in Mendenhall addressed a seizure based upon law enforcement’s show of authority, the analysis failed to address the requisite sufficiency for a court to conclude that, under the totality of the circumstances, a reasonable person would not feel free to leave.

Providing more definiteness to the “reasonable person” test, the Court, in Michigan v. Chesternut, addressed the issue of whether a seizure occurred during law enforcement’s pursuit of an individual.[37] The facts of that case show that the police, in a marked vehicle, witnessed the respondent act suspiciously while approaching another individual on the street.[38] Upon seeing the police, the respondent fled, and the police gave chase.[39] During flight, the respondent discarded baggies containing pills determined to be codeine.[40]

The government and respondent argued for bright-line rules regarding the applicability of the Fourth Amendment during the police’s pursuit of a suspect.[41] However, the Court, citing the “reasonable person” test found that “the test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.”[42] The Court continued, “[w]hile the test is flexible enough to be applied to the whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual’s response to the actions of the police.”[43] As it did in Mendenhall, the Court offered additional factors to be considered in the totality of the circumstances analysis: (1) activating police sirens or flashers; (2) commanding the individual to halt; (3) displaying weapons; and (4) operating the police cruiser aggressively to control the individual’s movement.[44]

Applying these factors, the Court determined that because the police drove next to the respondent prior to his surrender, no seizure occurred.[45]

Finally, the Court added an extra layer to its definition of seizure, and adjusted its analysis, in California v. Hodari D. In that case, a group of youths, including the respondent, fled from police officers in an unmarked car.[46] The respondent, while fleeing, pitched a rock of crack-cocaine which the police discovered and the prosecution introduced at his juvenile proceedings over his rejected motion to suppress.[47] The California Court of Appeal reversed the ruling on the motion to suppress, finding that the respondent had been unreasonably seized making any evidence obtained thereafter inadmissible.[48]

The United States Supreme Court, only addressing the seizure issue, noted: “at common law, the word [seized] connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control. A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize.”[49] The Court continued: “The word ‘seizure’ readily bears the meaning of laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful…It does not remotely apply, however, to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee.”[50] Under this analysis, the Court held that “[a]n arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.”[51] A seizure can be accomplished without physical touching, but words alone do not suffice to show the existence of a seizure.[52]

The respondent further relied upon the “reasonable person” test supplied by Mendenhall. However, the Court concluded that “[Mendenhall] says that a person has been seized ‘only if,’ not that he has been seized ‘whenever’; it states a necessary, but not a sufficient, condition for seizure—or, more precisely, for seizure effected through a ‘show of authority.’”[53] Whether police have shown authority depends upon the objective facts of the case; under the totality of the circumstances, a defendant satisfies the test and demonstrates a show of authority “only if” the officer’s conduct would convey to the reasonable person a restraint on his freedom.[54] Further, the Court concluded that the respondent could not support his contention using Chesternut because the Court determined in that case that the “reasonable person” test had not been met.[55]

The Court, assuming that the “reasonable person” test had been met and law enforcement’s actions constituted a show of authority, the respondent failed to comply with that show of authority.[56] Thus, at a minimum, an individual must “submit” to the police show of authority for a seizure to occur. Because the respondent failed to satisfy the initial inquiry—that a seizure occurred—the Court did not address the reasonableness prong.

Second Circuit

Returning to Huertas’ appeal, the Second Circuit, analyzing only whether a seizure had occurred, held that Huertas’ brief encounter with police constituted evasion rather than submission to authority.[57] In defining a seizure, the court noted that either the use of physical force or a submission to authority must be present.[58] Considering that Officer Lattanzio did not use physical force, Huertas could only prove that he was seized by showing that he submitted to an assertion of police authority.[59] The court further stated that the seizure issue would be examined under the totality of the circumstances.[60]

The court relied primarily on United States v. Baldwin as support for its position that Huertas did not submit to an assertion of police authority.[61] In that case, Baldwin pulled his car to the side of the road in response to a police cruiser’s siren and flashing lights.[62] As officers attempted to subdue Baldwin, by pulling their guns and ordering him to show his hands, Baldwin sped off.[63] After police apprehended Baldwin, drug paraphernalia was discovered on his person.[64] The trial court denied his motion to suppress and the Second Circuit affirmed holding that, under the circumstances, Baldwin’s conduct “amounted to an evasion of police authority, not submission.”[65]

In the court’s view, Huertas’ conduct evinced efforts to evade police suspicion. [66] Had Huertas immediately run when the patrol car pulled beside him and turned on its spotlight, a chase would have ensued.[67] By cooperating for a brief time, Huertas attempted to minimize Officer Lattanzio’s suspicions with the hope that Officer Lattanzio would leave, satisfied with Huertas’ responses.[68] To the contrary, Officer Lattanzio exited his vehicle leading to Huertas’s flight.[69] The court also noted that the brevity of the interaction as well as physical distance between Huertas and Officer Lattanzio demonstrates, under all available circumstances, the lack of submission.[70]

Considering all the evidence presented, the Second Circuit determined that Huertas was not seized under the Fourth Amendment.

D.C. Circuit

            As police prepared to execute a search warrant at the home of Jerome Earles, Eric Brodie left Earles’ home. According to Deputy Clark, Brodie looked startled to see police outside the residence, but continued to walk away from the home. Because Brodie left the home that police intended to search, police decided to stop him. Deputy Clark pulled a patrol car parallel to Brodie, got out of the vehicle, and told Brodie to place his hands on a nearby vehicle. Brodie complied initially but fled while Deputy Clark gave his partner instructions. As police chased Brodie, he discarded three weapons, and then surrendered once officers threatened to use a taser.

Awaiting trial, Brodie filed a motion to suppress the government’s evidence arguing that the police violated his Fourth Amendment rights. The government, on the other hand, advanced the argument that no Fourth Amendment violation occurred because the brief stop, which included asking Brodie to place his hands on a car, did not amount to a seizure. The trial court dismissed the motion to suppress, and Brodie appealed to the D.C. Circuit.

The D.C. Circuit held that Brodie’s action—obeying police orders by placing his hands on a vehicle—can only be classified as submission to police authority. The government conceded that Brodie complied with Deputy Clark’s request, but under the government’s view momentary compliance does not constitute submission. However, the brevity of the encounter only supports the contention that the seizure was brief, not that the seizure did not occur.

Under the government’s argument, momentary compliance suggests feigned compliance. However, as the D.C. Circuit found, nothing in the record indicated that Brodie feigned compliance; the government failed to provide any evidence that Brodie had an ulterior motive for cooperating with police. In fact, the district court determined that Brodie’s decision to flee came after he placed his hands on the car. In United States v. Washington, the D.C. Circuit held that the defendant, who the police pulled over, did not submit to police authority when he sped off after the police officers exited their cruisers. The court viewed that situation in a different light from Brodie’s situation. The defendant in Washington gained an advantage by luring the police out of their cruiser, while Brodie gained no advantage by placing his hands on the vehicle. Therefore, the D.C. Circuit concerned itself primarily with the defendant’s response to the show of police authority rather than the circumstances giving way to the actual show of authority.

In the end, the D.C. Circuit reversed the district court’s ruling on the motion to suppress finding that Brodie met the requirements evincing a Fourth Amendment violation.


The Supreme Court asserts that a seizure occurs through either the application of “physical force” or “submission to police authority.”[71] Prior to Hodari D., the Court maintained that if the “reasonable person” would believe that he or she was being restrained, that the police-citizen encounter constituted a seizure under the Fourth Amendment.[72] As the Supreme Court found in Mendenhall and its progeny, the “reasonable person” test examines police conduct objectively, removing the subjective thoughts of the citizen. However, Hodari D. seemingly created an additional component of that test as it pertains to “submission to police authority.”  The Court effectively held that the “reasonable person” test must be satisfied but satisfying the “reasonable person” test alone does not bring the situation under the Fourth Amendment. Rather, the individual must also submit to police authority.[73] Under Fourth Amendment jurisprudence, courts should apply the standard adopted by the D.C. Circuit, which, when observing the “submission o the show of authority” prong of the analysis, appears to emphasize the individual’s response to the police’s show of authority rather than the individual’s subjective belief regarding any cooperation.

The D.C. Circuit found that both the “reasonable person” test was satisfied, and that Brodie submitted to police authority. The officers blocked Brodie’s path and commanded him to place his hands on a nearby vehicle; objectively, any reasonable person not have felt free to leave. More important, though, Brodie complied with the order. Under the totality of the circumstances, Brodie submitted to the display of authority and only after seeing an opportunity to run did he run. The D.C. Circuit, as opposed to the Second Circuit, saw the compliance, however brief, as objectively presumptive of submission to police authority. The brevity simply went to the seizure’s briefness. Thus, the D.C. Circuit’s approach seemingly extends the objectivity of the “reasonable person” test into the second prong of the analysis.

At the same time, the D.C. Circuit provided the government with the opportunity to counter what the facts showed. As the court held in a prior case, evidence of the defendant’s intention to gain an advantage by cooperating with police would serve to debunk the presumption supporting submission to police authority. Thus, a defendant who intended to flee would not acquire the protection of the Fourth Amendment. Under this “exception,” the interests of both law enforcement and citizens would be, more or less, balanced, and the objectivity of the analysis would be preserved.

In contrast, the Second Circuit focuses more on the defendant’s state of mind by looking at the defendant’s intentions at the start of an encounter with police. Rather than treat the momentary compliance to police authority as presumptive of submission, the court found more significant the fact that the defendant waited until the officer left his vehicle to flee. However, focusing on this fact enters the defendant’s mind and reasons that he always intended to flee. Effectively, the court weighed “evasiveness” as a factor in the totality of the circumstances analysis.


Following the Supreme Court’s decision in Hodari D., circuits are split regarding what constitutes “submission to authority” such that Fourth Amendment protections apply. Based upon Fourth Amendment jurisprudence, Courts should follow the lead of the D.C. Circuit which adopts an objective analysis of the defendant’s compliance with police’s show of authority. Keeping consistent with the objectivity of the “reasonable person” test, courts should look to the defendant’s actions in response to police authority to determine whether submission has occurred.

Recently, the Supreme Court rejected the petitioner for cert submitted by Branden Huertas seeking review of the Second Circuit’s decision to dismiss his motion to suppress.[74] Thus, it remains unclear if and when the Supreme Court will address the current split.

[1] Brief for the United States in Opposition at 2, Huertas v. U.S., 2018 WL 1733135 (Apr. 9, 2018).

[2] U.S. v. Huertas, 864 F.3d 214, 215 (2d Cir. 2017), cert. denied, 138 S. Ct. 1985 (2018).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] California v. Hodari D., 499 U.S. 621, 621 (1991).

[13] See, e.g., U.S. v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (finding that “[e]ven if [respondent] paused for a few moments and gave his name, he did not submit in any realistic sense to the officers’ show of authority, and therefore there was no seizure until [an officer] grabbed him.”); U.S. v. Morgan, 936 F.2d 1561, 1567 (10th Cir. 1991) (noting that because respondent “yielded” momentarily to police authority, he was seized under the Fourth Amendment).

[14] Petition for Cert. at 4, Huertas v. U.S., 2018 WL 1733135 (No. 17-818).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] U.S. Const. amend. IV.

[23] Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation 14 (2008).

[24] L.R. Article

[25] 392 U.S. 1, 12 (1968).

[26] Id. at 16.

[27] 446 U.S. 544, 547-548 (1980)

[28] Id. at 548.

[29] Id. at 549.

[30] Id. at 550.

[31] Id. at 557.

[32] Id. at 553.

[33] Id.

[34] Id. at 554.

[35] Id.

[36] Id. at 555.

[37] 486 U.S. 567, 569 (1988).

[38] Id.

[39] Id.

[40] Id.

[41] Id. at 573.

[42] Id.

[43] Id. at 574.

[44] Id. at 575.

[45] Id. at 576.

[46] 499 U.S. 621, 622-623 (1991).

[47] Id. at 623.

[48] Id.

[49] Id. at 624.

[50] Id. at 626.

[51] Id.

[52] Id. (citing Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)).

[53] Id. at 628.

[54] Id.

[55] Id.

[56] Id. at 629.

[57] 864 F.3d at 215.

[58] Id. at 216 (citing United States v. Swindle, 407 F.3d 562, 572 (2d Cir. 2005)).

[59] Id.

[60] Id. (citing United States v. Baldwin, 496 F.3d 215, 219 (2d Cir. 2007)).

[61] Id.

[62] Id. (citing Baldwin, 496 F.3d at 217).

[63] Id. (citing Baldwin, 496 F.3d at 217).

[64] Id. (citing Baldwin, 496 F.3d at 217)

[65] Id. (citing Baldwin, 496 F.3d at 217-219).

[66] Id.

[67] Id.

[68] Id. at 217.

[69] Id.

[70] Id.

[71] Mendenhall, 446 U.S. at 553.

[72] Id. at 554.

[73] Hodari D., 499 U.S. at 628.

[74] Huertas v. United States, SCOTUS Blog,

Qualified Immunity and “Notice” for Police Officers

Emily Westerfield, Associate Member, University of Cincinnati Law Review


When the Supreme Court decided Kisela v. Hughes in April of 2018, the Court held that a police officer did not violate any clearly established law when he shot a woman four times through a chain-link fence after she failed to respond to two demands to drop a kitchen knife that she held at her side while she spoke to her roommate outside of their residence.[1] The Supreme Court previously held that qualified immunity attaches to circumstances in which “an official’s conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known.”[2] Thus, the Supreme Court held that the police officer in Kisela was entitled to qualified immunity.[3]

Kisela was first brought before the District Court when the woman shot by the police officer, Hughes, sued the officer, Kisela, under Rev. Stat. §1979 and 42 U.S.C. §1983 for use of excessive force against her in violation of the Fourth Amendment.[4] The District Court granted Kisela’s motion for summary judgment, however, the Ninth Circuit reversed.[5] The Ninth Circuit held that, when viewed in the light most favorable to Hughes, the evidence indicates that Kisela did, per Hughes’ complaint, violate the Fourth Amendment when he shot her four times.[6] While the Supreme Court effectively reversed the Ninth Circuit’s ruling, the Court majority refused to consider the issue of whether a Fourth Amendment violation actually occurred.[7] Rather, the Court reasoned that the constitutional issue was essentially rendered irrelevant in the face of the record, which unequivocally demonstrated that Kisela was entitled to qualified immunity when he shot Hughes.[8]

The dissent, penned by Justice Sotomayor and joined by Justice Ginsburg, considered the per curiam majority opinion not only erroneous, but dangerous in its treatment of such a case.[9] According to the dissenting opinion, the majority sent “an alarming signal to law enforcement officers and the public . . . [telling] officers that they can shoot first and think later.”[10] By taking a significantly more in-depth look at the facts of the case and the applicable case law than the per curiam majority, Sotomayor’s dissent illuminates the somewhat dismissive nature of the majority opinion. While the dissent holds police officers to a higher standard than the majority, the standard seems reasonable given existing precedent from the Supreme Court and the Ninth Circuit.

The Majority

            Instead of honing in on the issue of whether Kisela violated the Fourth Amendment when he shot Hughes, the majority focused on determining whether it was clearly established that shooting Hughes would violate the Fourth Amendment and, consequently, whether Kisela was entitled to qualified immunity. As the majority attempted to explain the point at which a constitutional right becomes “clearly established” within a particular fact pattern, it oscillated between the concept that existing precedent must “‘squarely govern[]’”[11] the facts of the case and the notion that a case need not necessarily be “‘directly on point’”[12] in order to render the constitutional right at issue “clearly established.”[13] Furthermore, while the majority opinion concedes that “‘general statements of the law are not inherently incapable of giving fair and clear warning to officers,’”[14] it provides that in order for a right to have been “clearly established” in a certain situation—such that an official who violated that right would not be entitled to qualified immunity—“existing precedent must have placed the statutory or constitutional question beyond debate.”[15]

Ultimately, the majority reasoned that issues involving the use of excessive force depend heavily on the facts of each case.[16] Therefore, where a Fourth Amendment violation involving excessive force is concerned, a court cannot hold that a police officer has “‘violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.’”[17] In other words, according to the majority opinion, the facts of a prior case need to be exceptionally similar to the facts of the current case in order for a court to determine that a police officer had adequate notice that his actions violated the Fourth Amendment and, thus, would not be entitled to qualified immunity.

Here, the majority held that even if it had determined that Kisela’s actions constituted excessive force in violation of the Fourth Amendment, Kisela was entitled to qualified immunity because there was no such case law that was sufficiently similar to the situation Kisela found himself in when he shot Hughes.[18] After reaching that conclusion, the majority referred to a certain set of facts from the record which supported that viewpoint. First, Kisela testified that while he did not believe that he and his two fellow officers, who were separated from Hughes by a chain-link fence, were in any danger, Kisela was concerned about the safety of Hughes’s roommate, who was standing just a few feet away from Hughes.[19] Second, Kisela had responded to a report that Hughes was acting erratically and, specifically, that Hughes was “hacking a tree with a large kitchen knife.”[20] Third, Hughes failed to respond to two commands to drop the kitchen knife she held at her side, despite the commands having been loud enough for Hughes’s roommate to hear them.[21]

Based on the above facts, the majority concluded that it was “far from an obvious case in which any competent officer would have known that shooting Hughes to protect [her roommate] would have violated the Fourth Amendment.”[22] To support that conclusion, the majority distinguished the facts in the case at hand from the facts in a previous Ninth Circuit case, Deorle v. Rutherford, where excessive force by a police officer and qualified immunity were also at issue. In Deorle, the Ninth Circuit held that a police officer who shot a man in the face with beanbag rounds was not entitled to qualified immunity because “his use of force was objectively unreasonable under clearly established law.”[23] The record in that case demonstrated that police officers responded to a report of a man acting erratically, and that the man was “verbally abusive” toward the officers when they arrived at the scene.[24] The man “brandish[ed] a hatchet” at one of the officers before tossing it away when he was told by the officers to put it down.[25] The man was also holding an unloaded crossbow in one hand, which he put down when instructed to so by the officers, and what looked like a can of lighter fluid in the other hand.[26] After about a forty-minute period of being observed by the officers, one of those officers shot the man in the face with a round of beanbags and seriously injured him when the man began steadily walking toward the officers.[27] The majority held that because of several important differences between the situation described in Deorle and the situation Kisela was in when he shot Hughes, Deorle did not provide Kisela with adequate notice that his actions would constitute clear violations of Hughes’s Fourth Amendment rights.[28] The majority points out that unlike the man shot by the police officer in Deorle, Hughes was “armed with a large knife; was within striking distance of [her roommate]; ignored the officers’ orders to drop the weapon; and the situation unfolded in less than a minute.”[29]

The majority further supported its holding that Kisela did not violate any clearly established law or constitutional right by shooting Hughes by pointing to the similarities between the case at hand and the facts present in another Ninth Circuit case, Blanford v. Sacramento County. In Blanford, the Ninth Circuit held that a police officer’s use of deadly force against a man who was acting erratically while walking through a residential neighborhood with a sword in his hand, and who failed to drop the sword after officers repeatedly told him to put it down, did not violate the Fourth Amendment.[30] The majority asserted that, like the police officer who shot the man in Blanford, Kisela could have been acting under the reasonable belief that Hughes was a true threat to others.[31] Acting under that belief, Kisela would not have been acting in clear violation of the Fourth Amendment by shooting Hughes.[32] Thus, according to the majority, Kisela was entitled to qualified immunity.[33]

The Dissent

            In her dissenting opinion, Justice Sotomayor concluded that the Ninth Circuit correctly held that Kisela violated Hughes’s clearly established Fourth Amendment right against excessive force when he shot her four times through the chain-link fence.[34] Unlike the per curiam majority, Justice Sotomayor reached her conclusion by taking Kisela through the full two-prong qualified immunity analysis. The analysis, derived from the 2012 Supreme Court case Reichle v. Howard, is as follows: “[p]olice officers are entitled to qualified immunity if ‘(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.’”[35]

In her analysis of the first prong, Justice Sotomayor determined that a jury could have reasonably concluded, given the facts in the record, that Kisela’s use of deadly force against Hughes constituted the use of excessive force, and, thus, Kisela violated the Fourth Amendment.[36] The dissenting opinion noted that when evaluating claims of excessive force against a police officer, courts must determine whether “‘the [police officer’s] actions are objectively reasonable in light of the facts and circumstances confronting them.’”[37] According to the Supreme Court in Graham v. Connor, that analysis ought to include “‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.’”[38] In her detailed evaluation of the first prong of the qualified immunity analysis, Justice Sotomayor examined the facts of the case at hand in the context of each of the above three factors.

With regard to the first factor, the dissenting opinion indicated that no crime had been reported; rather, the three police officers arrived at Hughes’s residence after receiving a report that Hughes had been “acting erratically.”[39] Additionally, Hughes committed no crime while in the presence of the police officers.[40] As Justice Sotomayor considered the second factor, she determined that a jury could have reasonably concluded that Hughes posed no threat to the three police officers or her roommate.[41] While the police report alleged that Hughes had been acting erratically, the dissent pointed out that Hughes never made any threatening gestures or movements as she stood talking to her roommate; the record even suggested that Hughes was calm.[42] With regard to the third factor, the dissent concluded that Hughes never resisted or evaded arrest by the officers on the scene.

The consideration of other relevant factors further led the dissent to conclude that the facts could have led a jury to reasonably conclude that Kisela violated the Fourth Amendment. For instance, the fact that Hughes failed to acknowledge the officers’ commands to drop the knife suggest that she may not have been aware of the officers’ presence.[43] That possibility is bolstered by the significant distance and the chain-link fence separating the officers from Hughes. Primarily, however, the dissent argued that Kisela could have used “less intrusive means before deploying deadly force.”[44] Expert testimony made clear that Kisela should have used a taser instead of a gun to shoot Hughes.[45] The dissent was particularly concerned with the fact that Kisela’s fellow officers who were confronted with the same set of circumstances did not shoot at Hughes.[46] According to the dissent, that fact exposes the “unnecessary and unreasonable” nature of Kisela’s actions in that moment.[47] Ultimately, the dissent’s excessive force analysis leaves little room for argument that Kisela may have acted within the bounds of the Fourth Amendment when he shot Hughes.

The majority concluded that Kisela not only violated the Fourth Amendment when he shot Hughes, but that Hughes’s Fourth Amendment right against excessive force was clearly established when the violation occurred.[48] In making the latter determination, the dissent emphasized that the “clearly established” standard is actually less stringent than the majority insists.[49] This concept is supported by existing Supreme Court precedent. In Anderson v. Creighton, for example, the Court “rejected the notion that ‘an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.’”[50] Furthermore, in Hope v. Peltzer, the Court asserted that “‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’”[51] The dissent drew from that existing precedent in concluding that “the ‘clearly established’ inquiry boils down to whether Kisela had ‘fair notice’ that he acted unconstitutionally.”[52] According to the dissent, existing precedent derived from both the Supreme Court and the Ninth Circuit undoubtedly provided Kisela with sufficient notice that his actions in the situation he found himself in violated the Fourth Amendment.[53]

Supreme Court precedent provides that a police officer “‘may only deploy deadly force against an individual if the officer ‘has probable cause to believe that the [person] poses a threat of serious physical harm, either to the officer or to others.’”[54] According to the dissent, Hughes posed no such threat to the officers, who were separated from her by a chain link fence; nor did Hughes pose such a threat to her roommate, to whom Hughes made no verbal threat or gesture which could reasonably be interpreted as threatening.[55] The dissent further indicates that the Court has clearly provided that “any use of lethal force must be justified by some legitimate government interest.”[56] And, according to the dissent, “Kisela lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter.”[57] The above doctrines constituted longstanding legal principles at the time Kisela shot Hughes.

The notice that well-established Supreme Court precedent provided to Kisela was only reinforced by existing Ninth Circuit precedent indicating that “Kisela’s conduct was clearly unreasonable.”[58] In Curnow v. Ridgecrest Police, for example, the Ninth Circuit held that police officers violated the Fourth Amendment when they employed deadly force against an individual who was holding a semiautomatic rifle at the time because the individual “‘did not point the gun at the officers and apparently was not facing them when they shot him the first time.’”[59] Additionally, the Ninth Circuit held in Harris v. Roderick that a police officer violated the Fourth Amendment when he used deadly force against a man who was armed but made no “‘aggressive move of any kind.’”[60] Moreover, the Ninth Circuit further provided in Harris that “[l]aw enforcement officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officers, or is fleeing and his escape will result in a serious threat of injury to persons.”[61]

According to the Supreme Court in Wilson v. Layne, “qualified immunity is lost when plaintiffs point either to ‘cases of controlling authority in their jurisdiction at the time of the incident’ or to ‘a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.’”[62] Thus, according to the dissent, Kisela was not entitled to qualified immunity when he shot Hughes.[63]



            In Kisela, the majority opinion and dissenting opinion present very different views of the facts. Their differing viewpoints turn largely on how Kisela’s perception of Hughes was, and ought to have been, affected by the initial police report indicating that Hughes had been “acting erratically.” According to the majority opinion, when Kisela arrived at the scene, he observed a woman with a knife in her hand, standing a few feet away from her roommate, who could do anything at any moment. Thus, the majority paints Kisela’s perception of Hughes as armed, dangerous, and unpredictable. The dissent, on the other hand, notes that, while the report described Hughes as “erratic,” the record indicates that Hughes appeared calm as she stood talking to her roommate in front of their shared residence. While Hughes had a kitchen knife in her hand during their conversation, she never raised the knife from her side, or in any way indicated that she planned to use the knife to attack her roommate. Ultimately, the majority defers to Kisela’s potential fear and general uncertainty at confronting a woman who had previously been “acting erratically” and had a knife in her hand. The dissent, on the other hand, considers how a reasonable police officer in Kisela’s position would have acted, focusing primarily on the events that occurred at the scene itself. The actions of Kisela’s fellow officers, who were confronted with the same set of facts and circumstances as Kisela, aid this analysis. Those officers did not shoot at Hughes.

Even without knowing whether two other officers in the same situation would have shot at Hughes, the dissent insists that longstanding Supreme Court and Ninth Circuit precedent provided Kisela with notice that shooting Hughes would constitute excessive force in clear violation of the Fourth Amendment. The majority, however, insists that prior case law was not sufficiently similar to the facts at hand to provide Kisela with adequate notice that shooting Hughes would violate the Fourth Amendment. While the difference in opinion does seem to come down to their differing views of the facts, it also comes down to their differing views about how similar the facts of prior cases must be to the situation a police officer faces in order to provide an officer with sufficient notice that certain acts would violate the Fourth Amendment. As discussed above, both the majority and dissent note that, according to Supreme Court precedent, the facts of a current case do not have to completely align with a prior case in order for the holding of the prior case to put an officer in the current case on notice that his actions would violate a clearly established constitutional right. The dissenting opinion reflects this legal principle. It seems that the majority, on the other hand, after expressly conceding to the principle, proceeds thereafter to jettison the principle when it compares the facts from Kisela to the facts of prior cases.

[1] Kisela v. Hughes, 138 S. Ct. 1148, 1150 (2018).

[2] White v. Pauly, 137 U.S. 548, 551 (2017).

[3] Kisela, 138 S. Ct. at 1150.

[4] Id. at 1151.

[5] Id. at 1151-52.

[6] Id.

[7] Id. at 1150.

[8] Id.

[9] Kisela, 138 S. Ct. at 1152.

[10] Id.

[11] Id. at 1153 (quoting Mullenix v. Luna, 136 U.S. 305, 308 (2015)).

[12] Kisela, 138 S. Ct. at 1153 (quoting White, 137 U.S. at 551).

[13] Kisela, 138 S. Ct. at 1153.

[14] Id. (quoting White, 137 U.S. at 551).

[15] Id.

[16] Id. at 1152 (citing Mullenix, 136 U.S. at 308).

[17] Kisela, 138 S. Ct. at 1153 (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)).

[18] Kisela, 138 S. Ct. at 1153

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Deorle v. Rutherford, 272 F. 3d 1272, 1286-86 (9th Cir. 2001).

[24] Id. at 1276-77.

[25] Id.

[26] Id. at 1277.

[27] Id. at 1278.

[28] Kisela, 138 S. Ct. at 1154.

[29] Id.

[30] Blanford v. Sacramento County, 406 F. 3d 1110, 1112-1119 (9th Cir. 2005).

[31] Kisela, 138 S. Ct. at 1153-54.

[32] Id. at 1154.

[33] Id.

[34] Id. at 1156.

[35] Id.  (quoting Reichle v. Howard, 566 U.S. 658, 664 (2012).

[36] Id. at 1157-58.

[37] Id. at 1156-57 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)).

[38] Id.

[39] Kisela, 138 S. Ct. at 1157.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id. at 1157.

[47] Id. at 1157.

[48] Id. at 1156.

[49] Id. at 1158.

[50] Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

[51] Kisela, 138 S. Ct. at 1158 (quoting Hope v. Peltzer, 536 U.S. 730, 741 (2002)).

[52] Kisela, 138 S. Ct. at 1158 (citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

[53] Kisela, 138 S. Ct. at 1158.

[54] Id.  at 1158 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

[55] Kisela, 138 S. Ct. at 1159.

[56] Id. at 1158 (citing Scott v. Harris, 550 U.S. 372, 383 (2007)).

[57] Kisela, 138 S. Ct. at 1158.

[58] Kisela, 138 S. Ct. at 1158.

[59] Id.  at 1160 (quoting Curnow v. Ridgecrest Police, 952 F. 2d. 321, 325 (9th Cir. 1991)).

[60] Kisela, 138 S. Ct. at 1160 (quoting Harris v. Roderick, 126 F. 3d 1189, 1203 (9th Cir. 1997)).

[61] Harris, 126 F. 3d at 1203.

[62] Id. (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).

[63] Kisela, 138 S. Ct. at 1158.

Airborne Hunting

Kevin Cox, Associate Member, University of Cincinnati Law ReviewPicture2

In 2017, the U.S. Department of the Interior released a new five-year report that showed 101.6 million Americans participated in hunting, fishing, or other wildlife activities.[1]  Of that, only 11.5 million participated in hunting.[2]  While hunting is, to many, a highly controversial activity, the United States is deeply dependent on it for its nationwide conservation efforts.  In fact, the excise tax on firearms, ammunition, and archery equipment garners more than $1.6 billion annually for the nationwide effort.[3]

Hunting has not always been recognized for its conservation efforts.  In 1969, NBC showed a documentary entitled “The Wolf Men,” in which there were several scenes depicting the slaughtering of wolves and other animals from aircrafts.[4]  This resulted in a public outcry for government intervention, and in 1971 Congress enacted the Airborne Hunting Act.[5]  This Act amended the Fish and Wildlife Act of 1956, 16 U.S.C.A. §§ 742 to 754, to provide for criminal penalties for shooting at or harassing birds, fish, and other animals from aircraft.[6]  The issue was heavily debated in both the House and the Senate, and the first few proposals created inflexible blanket prohibitions on the conduct.[7]  However, after extensive discussion with other government agencies, the final statute permitted government agents, as well as individuals licensed by state governments to continue the conduct.[8]

Under 16 U.S.C. § 742j-1, any person who, while airborne in an aircraft, shoots or attempts to shoot for the purpose of capturing or killing any bird, fish or other animal can be subject to up to a $5,000 fine, or up to a year of jail time, or both.[9]  The statute does provide an exception for government agents and any individuals licensed by the State, so long as the State reports to the Secretary of Interior the identities of those individuals, and the number and type of animals taken.[10]

The need for this legislation was obvious; hunters, using aircrafts, were hunting wolves, bald eagles, and other animals near extinction and the government had no means to regulate it.[11]  Congress, while debating the constitutionality of the statute, proffered several arguments for this legislation, but the prevailing argument was the need to regulate U.S. airspace from unsafe conduct such as discharging firearms from aircrafts at low altitudes.[12]  Furthermore, the statute has been upheld by the courts as a valid exercise of congressional power under the Commerce Clause[13] since it pertained to safety of flights in air commerce.[14]

Today, at least for city folk, the idea of hunting from an aircraft, or the need for federal laws prohibiting it sounds absurd and unnecessary.  In Texas, however, the hunting of feral hogs by helicopter is not only legal, it is a commercial enterprise.[15]  Due to an estimated $400 million of yearly damage caused by millions of feral hogs, the State determined that licensing helicopter hunts might curb the populations explosive growth.[16]

Under the statute, states are free to issue licenses to individuals, but only a few states like Texas or Oklahoma have chosen to do so to combat the feral hog populations.  So, if one is curious about hunting from helicopters, the best option might be with an outfitter in Texas; otherwise, beware of the $5,000 fine and potential jail time if choosing to hunt from an aircraft in a state without these commercial permits.

[1] See Press Release, Department of the Interior, New 5-Year Report Shows 101.6 Million Americans Participated in Hunting, Fishing & Wildlife Activities (Sept. 7, 2017), (last checked Feb. 14, 2019)


[3] Id.

[4] S. Rep. No. 92-421, 92 Cong., 1st Sess. 1971.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] 16 U.S.C.A. § 742j-1 (2018).

[10] Id.

[11] See S. Rep. No. 92-421, 92 Cong., 1st Sess. 1971.

[12] Id.

[13] U.S. Const. art. I, § 7, cl. 3.

[14] See U.S. v. Helsey, 463 F. Supp. 1111 (D. Mont. 1979) (reasoning that there must be a rational nexus between the regulated activity and interstate commerce for the statute to be valid).

[15] Kolten Parker, Texas Lawmaker Wants to Legalize Hunting Feral Hogs from Hot Air Balloons, Texas Observer, Apr. 18, 2017,

[16] Shannon Najmabadi, New Law Allows Hunting Hogs from Hot Air Balloons, but Few Balloonists will Offer it, Texas Tribune, Sept. 7, 2017,

Supreme Court Okays Alabama Execution Despite Establishment Clause Violation

Adam Ares, Associate Member, University of Cincinnati Law Review

On Thursday, February 7, the State of Alabama executed Domineque Ray for the 1995 murder and rape of 15-year-old Tiffany Harville after a lengthy court battle over whether Ray could have his imam in the room at the time of his execution.[1] At the heart of the case was the question of whether the prison’s decision to deny Ray access to his imam violated the First Amendment’s Establishment Clause, which prohibits preferential treatment of one religion over another.[2] After being granted a stay of the execution by the Eleventh Circuit, the case made its way to the United States Supreme Court, which ruled in a 5-4 decision that because of the “last-minute nature” of Ray’s request the State could proceed with the execution.[3] This article will provide an overview of the case, including a summary of both the Eleventh Circuit and Supreme Court opinions. Lastly, the author will explain why the Supreme Court decision was wrong and highlight the public reaction to the decision.

Ray was a committed Muslim since 2006 and had been meeting with his current imam regularly since 2015.[4] Ray’s execution was schedule for February 7, 2019.[5] On January 23, the Warden of the prison explained to Ray for the first time the execution policies and procedures. These practices provided that a Christian minister would be present in the execution chamber at the time of the execution and that the minister would either pray with the inmate if requested or he would stand unobtrusively against the wall. Any other spiritual advisor requested by the inmate is only permitted in the witness room, adjacent to the execution chamber.[6] During the meeting with the Warden, Ray requested that his imam be present in the execution chamber at the time of his death and that the Christian minister be excluded from the chamber. He was denied both requests.[7] Ray filed an emergency motion for stay of execution in the Middle District of Alabama on January 28, 2019.  Ray claimed that Alabama was violating Religious Land Use and Institutionalized Persons Act and the First Amendment’s Establishment Clause by denying access to his imam in the execution chamber, but requiring the presence of a Christian minister.[8] Prior to a determination by the District Court, the State agreed to exclude the Christian minister from the execution chamber, but explained that for safety concerns it would still not allow Ray’s imam access to the chamber because the imam is a non-ADOC (Alabama Department of Corrections) employee and is unfamiliar with the execution procedures.[9] The District Court denied Ray’s motion to stay the execution and found, in part, that “‘Ray has had ample opportunity in the past twelve years to seek a religious exemption, instead of waiting until the eleventh hour to do so.’”[10]

The Eleventh Circuit on appeal disagreed with the District Court and found that Ray had a “substantial likelihood of success” on the merits for his Establishment Clause claim.[11] The Supreme Court in Larson v. Valente held that “‘[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’”[12] The Eleventh Circuit held that it seemed to them that the ADOC has adopted a policy that “aid[s] one religion or prefer[s] one religion over another.”[13]  Specifically, the Court found that “[i]f Ray were a Christian, he would have a profound benefit; because he is a Muslim, he is denied that benefit.”[14] The Eleventh Circuit acknowledged that the State does have a compelling interest in maintaining security during “the most consequential act of carrying out an execution.”[15] However, the Court felt that Alabama did not meet its burden to show that there are no other less restrictive means to protect the State’s interests.[16] Additionally, the Eleventh Circuit disagreed with the District Court’s conclusion that Ray unduly delayed filing his action so as to delay the execution. The Eleventh Circuit found that the Alabama Code does not specify the policy of the ADOC, nor was there any evidence that Ray knew about the policy before his meeting with the Warden on January 23.[17] Therefore, the Eleventh Circuit granted Ray’s emergency motion to stay his execution.

One day later, on February 7, the day of the scheduled execution, the Supreme Court issued a ruling on the case. In an opinion that consists of less than 150 words, the majority of the Court ruled to vacate the Eleventh Circuit’s motion to stay the execution. The only rationale provided by the majority was in quoting Gomez v. United States Dist. Court for Northern Dist. of Cal., which provided that “‘[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.’”[18] The Court held to vacate the stay of the execution “[b]ecause Ray waited until January 28, 2019 to seek relief[.]”[19] The dissent by Justice Kagan stated that the majority’s decision was “profoundly wrong[,]” and found that there was “no reason to reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner.”[20] Justice Kagan found that the Alabama Code would not have put Ray on notice that his request would be denied and also noted that the prison refused to give Ray a copy of its practices and procedures.[21] Following the Supreme Court’s decision, Ray was executed later that day.

Justice Kagan was correct in finding that the majority’s decision was “profoundly wrong.” This should be an easy Establishment Clause case. The ADOC had a policy in place that clearly favored Christian inmates over non-Christian inmates by denying access to non-Christian spiritual advisers while simultaneously requiring the presence of a Christian minister in the execution chamber. This is clearly in violation of the Establishment Clause. Furthermore, all of the facts of the case tend to show that Ray did not have knowledge of the ADOC’s policy until days before his execution and that he would have had no way of knowing the policy before his discussion with the Warden. There is no other way to view the Supreme Court’s decision than as a blatant disregard of religious freedom in order to expediate the death penalty. The holding, especially given its brevity, seems to show a lack of respect for the Muslim faith. The result seems even more baffling given the Court’s new conservative majority’s dedication to religious freedom. As pointed out by Dahlia Lithwick in Slate, “[f]or a court that cannot bear the thought of a religious baker forced to frost a cake in violation of his spiritual convictions to be wholly unaffected at the prospect of a man given last rites by a member of another faith borders on staggering.”[22] Even the conservative National Review called the decision a “grave injustice” and argued that “[t]he state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death.”[23] Hopefully the universal public outcry will bring about change to Alabama’s discriminatory execution policies. However, Dunn v. Ray seems positioned to likely go down as one of the low moments in the history of the Supreme Court.

[1] Mathew S. Schwartz, Justices Let Alabama Execute Death Row Inmate Who Wanted Imam By His Side, NPR (Feb. 8, 2019, 7:08 AM),

[2] Id.

[3] Id.

[4] Ray v. Comm’r, Ala. Dep’t of Corr., 2019 U.S. App. LEXIS 3664 *1, 2 (11th Cir. 2019).

[5] Id.

[6] Id. at *2-3.

[7] Id. at *3.

[8] Id. at *4-5.

[9] Id. at *7.

[10] Id. at *8 (quoting the Middle District of Alabama).

[11] Id. at *9.

[12] Id. at *10 (quoting Larson v. Valente, 456 U.S. 228, 244 (1982)).

[13] Id. at *13.

[14] Id. at *20.

[15] Id. at *17.

[16] Id. at *17-18.

[17] Id. at *26-28.

[18] Dunn v. Ray, 2019 U.S. LEXIS 817 *1 (2019).

[19] Id.

[20] Id. at *2-3.

[21] Id. at *4.

[22] Dahlia Lithwick, An Execution Without an Imam, Slate (Feb. 8, 2019, 2:56 PM),

[23] David French, The Supreme Court Upholds a Grave Violation of the First Amendment, National Review (Feb. 8, 2019, 2:30 PM),

Does the Supreme Court Have a “Bun in its Oven?”

John Simon, Associate Member, University of Cincinnati Law Review


In 1965, the Supreme Court of the United States issued a ruling in the case of Griswold v. Connecticut in which the Court found that the “specific guarantees in the Bill of Rights have penumbras” prompting the establishment of an unenumerated right to privacy.[1] Moreover, Griswold v. Connecticut paved the way for the recognition of other unenumerated rights.[2] Eight years after Griswold, the Supreme Court decided Roe v. Wade, solidifying the right to obtain an abortion. In that case, the Court found that “the right of privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[3] In the aftermath of Roe, the Supreme Court limited the scope of the right.

Forty-six years later, the future of abortion rights remains uncertain. In May 2018, Iowa became the next state to pass heartbeat legislation, adopting harsher abortion regulations.[4] Additionally, the United States experienced the tense confirmation process of Judge Kavanaugh to fill the vacant Supreme Court seat.[5] While the controversy surrounding the confirmation pertained to sexual assault allegations, Judge Kavanaugh’s confirmation arguably brings doubt regarding abortion rights.[6]

On January 22, 2019, an Iowa District Court judge struck down the state’s recently adopted heartbeat law as unconstitutional.[7] It’s unclear whether the judge’s decision will be challenged at the appellate level, but the legal fight regarding abortion is far from over.

Heartbeat Legislation

The heartbeat bill is nothing new. The first attempt to pass such a bill came in 2011 when the group Faith2Action introduced the bill to the Ohio legislature.[8] The bill would require physicians to search for a fetal heartbeat prior to the administration of an abortion; if a fetal heartbeat was detected, then the abortion would be precluded unless some medical emergency would put the woman at risk of death of serious injury.[9] The bill ultimately failed to pass, but provided inspiration to other states attempting to curb abortion rights.[10]

In 2013, North Dakota became the first state to succeed in passing a heartbeat law.[11] That law banned abortions after the finding of a detectable heartbeat in an unborn child. A medical emergency could necessitate the procedure, but the doctor would need to note in the woman’s medical records the medical emergency.[12] A federal court later struck down the law as unconstitutional, and the Supreme Court declined review the case.[13]

In 2013, Arkansas also passed a heartbeat law that precluded the administration of an abortion if a physician detected a fetal heartbeat and the woman had been pregnant for at least twelve weeks.[14] Once again, courts struck down the law, and the Supreme Court refused to review the case.[15]

While heartbeat bills include minor differences, each shares a common nucleus. The bills preclude an abortion once a physician detects a fetal heartbeat. At that point, only a medical emergency necessitates the procedure.

The Future of Abortion

            On June 29, 2018, the Supreme Court of Iowa, ruling on an abortion restriction separate from the heartbeat law, held that “that implicit in the concept of ordered liberty is the ability to decide whether to continue or terminate a pregnancy.”[16] Thus, as the right to obtain an abortion remains fundamental, any governmental restrictions on abortion would need to be justified by a compelling state interest and be narrowly tailored to serve that compelling interest.[17] The Supreme Court of Iowa determined that the challenged restriction, requiring a seventy-two hour waiting period prior to the abortion procedure, did not satisfy strict scrutiny.[18]

Unsurprisingly, Iowa’s District Court judge struck down the heartbeat law as unconstitutional finding that the law also failed to pass the muster of strict scrutiny.[19] Specifically, the judge noted that the law was not narrowly tailored to serve the state’s compelling interest because the law banned abortions at a time well before the fetus’s viability.[20]

A pattern has emerged showing the unconstitutionality of heartbeat bills under the existing jurisprudence of the Supreme Court of the United States. However, as Steven Aden, chief legal officer and general counsel for Americans United for Life, stated: “They are unconstitutional under current federal constitutional law. They were designed as a vehicle to challenge Roe in the Supreme Court, but they won’t get to the Supreme Court unless you can convince four members of the court that a fifth member would go with them to uphold the heartbeat bill.”[21] The Supreme Court has routinely rejected to hear cases involving heartbeat legislation. However, with states continuing to push for the passage of such legislation, and with a conservative majority currently sitting on the Court, the future of abortion rights remains unclear.


[1] 381 U.S.479, 484-486 (1965).

[2] Michael C. Dorf, Constitutional Law Stories (2 ed. 2009).

[3] Roe v. Wade, 410 U.S. 113, 153 (1973).

[4] Stephen Gruber-Miller, “Iowa Constitution bars new fetal heartbeat abortion law, Planned Parenthood and ACLU say in lawsuit,” The Des Moines Register (May 15, 2018),

[5] Clare Foran and Stephen Collinson, “Brett Kavanaugh sworn in as Supreme Court justice,” CNN (Oct. 6, 2018),

[6] Sarah McCammon, “Brett Kavanaugh’s Record On Abortion,” NPR (Aug. 31, 2018),

[7] Eric Levenson, “Iowa’s ‘fetal heartbeat’ abortion restriction declared unconstitutional,” CNN (Jan. 23, 2019),

[8] Jessica Ravitz, “Courts say anti-abortion ‘heartbeat bills’ are unconstitutional. So why do they keep coming?” CNN (Jan. 26, 2018),

[9] “HB 125 – The Heartbeat Bill (2011-2012),” Aclu Ohio, (last visited Jan 26, 2019).

[10] Ravitz, supra note 8.

[11] Id.

[12] H.B. 1456, 63rd Leg. (N.D. 2013).

[13] Ravitz, supra note 8.

[14] S.B. 134, 89th Gen. Assemb. (Ark. 2013).

[15] Ravitz, supra note 8.

[16] Planned Parenthood of the Heartland v. Reynolds ex rel. State, 915 N.W.2d 206, 237 (Iowa 2018).

[17] Id. at 237-238 (citing Bowers v. Polk Cty. Bd. of Supervisors, 638 N.W.2d 682, 694 (Iowa 2002)) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993)).

[18] Id. at 244.

[19] Eric Levenson and Marlena Baldacci, “Iowa’s ‘fetal heartbeat’ abortion restriction declared unconstitutional,” CNN (Jan. 23, 2019),

[20] Katarina Sostaric, “Judge Strikes Down Iowa’s ‘Fetal Heartbeat’ Abortion Law,” Iowa Public Radio (Jan. 22, 2019),

[21] Ravitz, supra note 8.