Prisoners are Not for Sale: Incarcerated Workers Deserve Employee Status

Photo by Sara Simmons Photography

Natalie Hurst, Associate Member, University of Cincinnati Law Review

I. Introduction

In 2020, U.S. incarcerated workers have been on the frontline battling the COVID-19 pandemic and the deadly wildfires in the West.[1] These actions have raised the question: why does the country rely on prison labor while failing to provide the incarcerated workers with basic employment protection?[2] Incarcerated workers face a multitude of dangerous conditions when forced to work during the COVID-19 pandemic—such as upkeeping factory production,[3] producing primary protective equipment for the public,[4] and fighting wildfires.[5] Despite the valuable contributions produced by prison labor, especially during the pandemic, incarcerated workers are not afforded basic employment protection and are subjected to unfair labor practices, such as little to no pay.[6] Currently, incarcerated workers are not afforded protections under the Fair Labor Standards Act (“FLSA”).[7] Additionally, incarcerated workers can be subjected to “involuntary servitude” pursuant to the punishment clause in the 13th Amendment.[8] Employment protections should be extended to incarcerated workers by (1) expanding the interpretation of “employee” under the FLSA to include incarcerated workers and (2) by amending the punishment clause in the 13th Amendment.

II. Background

A. The Fair Labor Standards Act and Incarcerated Workers

In 1938, the FLSA was adopted to protect employees by establishing “minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.”[9] The FLSA defines an employees as “any individual employed by an employer,”[10] while also providing exceptions for persons not considered employees, such as family farm workers, volunteers for public agencies, and volunteers for purely humanitarian purposes.[11] Notably, the exceptions defined in the FLSA do not specify that prisoners are not considered employees.

However, court precedents have established that prisoners are not considered “employees” under the intended meaning in the FLSA.[12]  An important case from the Fourth District Court of Appeals in Maryland, Harker v. State Use Industries, highlights this reasoning.[13] In Harker, Maryland state prisoners sued the entity responsible for the prison labor industries alleging that the FLSA was violated because they were not being compensated at the rate of the federal minimum wage.[14] The court rejected the prisoners’ argument by distinguishing the custodial relationship of prisoners from the employee-employer relationship covered in the FLSA.[15] Moreover, the court noted that the FLSA was intended to maintain a “standard of living” for workers and not wards of the state whom are provided “standard of living” care by the state while incarcerated.[16] Finally, the court concluded that “if the FLSA’s coverage is to extend within prison walls, Congress must says so, not the courts.”[17] Other court cases have relied on similar reasoning to reject extending FLSA coverage to prisoners.[18] Additionally, courts have also rejected inmates’ employment discrimination claims on the same basis.[19]

B. The 13th Amendment and Incarcerated Workers

Some refer to the 13th Amendment as having a “slavery loophole” that permits prison labor to be utilized as “slave labor.”[20] The 13th Amendment abolished slavery in the United States “except as a punishment for crime.”[21] Immediately following the adoption of the 13th Amendment, the punishment clause essentially replaced pre-Civil War enslaved persons with a state-sanctioned labor force comprised of incarcerated workers – with slaves on plantations merely being replaced by prisoners.[22] The “involuntary servitude” exception in the 13th Amendment birthed the current prison labor industry – with almost 55% of the American prison population working while serving prison sentences.[23] Incarcerated workers either do “prison support work,” which entails running the daily operations of the prison, or a “correctional industry” job, such as contracted jobs like making license plates, sewing uniforms, or staffing call centers.[24] As seen in the news, correctional industries are responsible for using incarcerated workers to produce protective gear during the pandemic and conscripting prisoners to fight wildfires.[25]

To challenge labor issues, prisoners can bring legal action under a §1983 civil rights claim based on 13th Amendment slavery violations. However, the 13th Amendment punishment loophole serves as an obstacle that prevents prisoners from succeeding on their claims. For example, a case from the Fifth Circuit held that the 13th Amendment supports the proposition that “compelling an inmate to work without pay in not unconstitutional.”[26] In 2019, a court held that “prison work assignments differ from traditional employment…because prisoners do not have a constitutional right to compensation for worked performed in prison” citing the 13th Amendment.[27] The U.S. Supreme Court has declined to review many appeals involving this issue.[28] Essentially, courts have adopted a narrow view of modern prison labor, deciding that the punishment clause renders the 13th Amendment a nonstarter as a means for prisoners to seek redress for employment claims.[29]

III. Analysis

The 13th Amendment in conjunction with the lack of protection from the FLSA continues to disenfranchise prisoners by not paying them fairly for their work or recognizing them as employees. However, there is no language in the FLSA that suggests that prisoners should not be considered employees and, thus, afforded employment protection, including minimum wage. For example, the court in Harker indicated that it was Congress’s prerogative to extend FLSA protections to prisoners and that it was not the courts’ job to do so.[30] Congress did pass judgment on who should and should not be considered employees under the FLSA by providing a list of exceptions in the statute.[31] The FLSA, as written, suggests that Congress intended to include prisoners within its scope because Congress never added prisoners to the list of those considered exempt from employee status. Congress had the opportunity to exempt prisoners when drafting the statute, as it made exemptions for other actors, but Congress chose not to do this. Thus, the FLSA can be interpreted to extend protection to incarcerated workers meaning they should be perceived as employees and entitled to federal minimum wage. Some courts have adopted this reasoning,[32] but it needs to be adopted uniformly throughout the country at the state and federal level.  

Though the FLSA can be interpreted as extending protection to prisoners, the 13th Amendment’s “slavery loophole” can always be used to justify low wages (and sometimes no wages) for prisoners. This provides a serious reason for amending the 13th Amendment to remove the loophole and ability to punish prisoners with “involuntary servitude.” Incarcerated workers will never receive just treatment if they can legally be treated as “involuntary servants” or if their labor can be taken advantage of for free. To fairly compensate incarcerated workers, the legislatures must amend the 13th Amendment’s “slavery loophole.” Once this happens, the Constitution will no longer be a roadblock to fair treatment for incarcerated workers; thus, allowing easier redress in the court systems.  

On the other hand, many proponents of prison labor argue that the benefits greatly outweigh the wage issue. Practically, prison labor is much more cost-effective than traditional labor. For example, prison systems would have substantial increases in costs if required to pay inmate workers minimum wage.[33] Some argue that current prison labor practices reduce recidivism and smooth the transition back into society upon release.[34] However, this argument in favor of current prison labor practices does not preclude the important considerations against.    From a financial angle, the meager compensation that incarcerated workers receive harms their ability to adjust to society upon re-entry because they are often in crippling debt.[35] Moreover, prisoners’ earnings are not enough to cover the court fees and fines, restitution, child support, and room and board expenses that most state departments of corrections deduct from prisoners’ earnings.[36] Finally, it is demeaning to exert power over vulnerable human beings by making them work for little to no wages while arguing that it is for their benefit (e.g., arguing that paying prisoners little to no wages somehow helps them re-enter society). In reality, those who take advantage of cheap (or free) prison labor, such as states and federal governments and businesses, are the ones truly seeing any benefits.

It is immoral to utilize prison labor for valuable services while failing to fairly compensate those who provide the valuable service. For example, people tend to collectively disapprove of the use of “sweat shops,” which feature underpaid workers with limited employment protections, and this same view should be applied to the current prison labor industry. Moreover, as apparent in the news, prison labor is being utilized for important and dangerous work, such as sanitizing hospitals during the pandemic and fighting wildfires. Incarcerated workers are literally putting their lives on the line only to be compensated with pennies.[37] It would be unthinkable to pay healthcare workers or firefighters only cents an hour for their work. Yet, one phrase in the 13th Amendment has somehow made it justifiable to treat incarcerated workers as forced, cheap laborers.

It is apparent that states, the federal government, and many businesses rely on prison labor to keep costs low for valuable services. However, saving money is not a moral justification for the devaluation of human labor. It is time for incarcerated workers to be treated fairly under the law.

IV. Conclusion

Current events, such as the COVID-19 pandemic and devastating wildfires in the West, have shed light on this country’s long-held practice of paying little to nothing for prison labor. It is immoral to take advantage of incarcerated workers while affording them no employment protections. Employment protections can and should be extended to incarcerated workers by (1) providing incarcerated workers minimum wage and other employee-status benefits as guaranteed under the FLSA and (2) by closing the slavery loophole in the 13th Amendment.  


[1] Eliyahu Kamisher, Prison Labor Is on The Frontlines of the COVID-19 Pandemic, The Appeal (Oct. 5, 2020), https://theappeal.org/prison-labor-is-on-the-frontlines-of-the-covid-19-pandemic/.

[2] See e.g., Nancy Beliyeau, Prison Labor During Pandemic Fuels Calls for New Constitutional Amendment, The Crime Report, (Oct. 14, 2020), https://thecrimereport.org/2020/10/14/prison-labor-during-pandemic-fuels-calls-for-new-constitutional-amendment/.

[3] E.g., Kiera Feldman, California Kept Prison Factories Open. Inmates Worked for Pennies an Hour as COVID-19 Spread, L.A. Times (Oct. 11, 2020), https://www.latimes.com/california/story/2020-10-11/california-prison-factories-inmates-covid-19.

[4] E.g., Jeremy Pelzer, Ohio Employs Prison Labor to Fill Shortage of Masks, Gowns and Other Protective Equipment, Cleveland.com (Mar. 30, 2020), https://www.cleveland.com/coronavirus/2020/03/ohio-employs-prison-labor-to-fill-shortage-of-masks-gowns-and-other-protective-equipment.html.

[5] E.g., Cristie Thompson, The Former Prisoners Fighting California’s Wildfires, The Marshall Project (Sept. 9, 2020), https://www.themarshallproject.org/2020/09/02/the-former-prisoners-fighting-california-s-wildfires.

[6] Kamisher, supra note 1.

[7] Fair Labor Standards Act of 1938, as amended 29 U.S.C. 201, et. seq.; See also, Sessi K. Blanchard, Labor Law Doesn’t Apply If You’re in Prison, Truthout (Mar. 30, 2019), https://truthout.org/articles/labor-law-doesnt-apply-if-youre-in-prison/.

[8] U.S. Const. Am. XIII, § 1.

[9] U.S Dept. of Labor, Wage and Hour Div., Handy Reference Guide to the Fair Labor Standards Act (revised 2016), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh1282.pdf.

[10] 29 U.S.C. §203(e)(1).

[11] 29 U.S.C. §203(e)(3)-(5).

[12] See e.g., Harker v. State Use. Indus., 990 F.2d 131 (4th Cir. 1993).

[13] Id.

[14] Id. at 132.

[15] Id. at 133.

[16] Id.

[17] Id. at 136.

[18] See e.g., Vanskike v. Peters, 974 F.2d 806 (7th Cir. 1992); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320 (9th Cir. 1991); Hamilton v. Dart, 2013 U.S. Dist. LEXIS 43171 (N.D. Ill. 2013).

[19] See e.g., Alexander v. Ortiz, 2018 U.S. Dist. LEXIS 45329 at *10 (2018).

[20] Bilyaeu, supra note 2.

[21] U.S. Const. Am. XIII, § 1.

[22] Lauren-Brooke Eisen, Covid-19 Highlights the Need for Prison Labor Reform, Brennan Center for Justice (Apr. 17, 2020), https://www.brennancenter.org/our-work/analysis-opinion/covid-19-highlights-need-prison-labor-reform.

[23] James J. Stephan, Census of State and Federal Correctional Facilities, 2005, Bureau of Justice Statistics: National Prison Statistics Program (Oct. 2008), https://www.bjs.gov/content/pub/pdf/csfcf05.pdf.

[24] Eisen, supra note 22.

[25] Id.

[26] Murray v. Miss. Dep’t of Corr., 911 F.2d 1167, 1167 (5th Cir. 1990).

[27] Stile v. U.S., 2019 U.S. Dist. LEXIS 9884 *12 (Dist. Ct. N.J.).

[28] E.g., 498 U.S. 1050 (1991) cert. denied.

[29] Ryan S. Marion, Prisoners for Sale: Making the Thirteenth Amendment Case Against State Private Prison Contracts, 18 Wm. & Mary Bill of Rts. J. 213, 235 (2009).

[30] Harker, 990 F.2d at 136.

[31] 29 U.S.C. §203(e)(3)-(5).

[32] E.g., Hale v. Arizona, 967 F.2d 1356 (9th Cir. 1992).

[33] Eisen, supra note 22.

[34] Id.

[35] Tanzina Vega, Costly Prison Fees are Putting Inmates Deep in Debt, CNN Business (Sept. 18, 2015), https://money.cnn.com/2015/09/18/news/economy/prison-fees-inmates-debt/index.html.

[36] Id.

[37] Kamisher, supra note 1. Incarcerated workers are typically paid less than one dollar an hour. To add insult to injury, California prison firefighters were unable to obtain the certification to become a firefighter after their release due to their criminal record.

Should the Supreme Court Revisit Qualified Immunity?

Photo by Chris Henry on Unsplash

Janelle Thompson, Associate Member, University of Cincinnati Law Review

I. Introduction

Recent occurrences of police violence against unarmed Black Americans have put officer accountability in the national spotlight once again. A sizable chunk of the discussion concerns qualified immunity, a concept created to give law enforcement some “breathing room” to effectively do their jobs without being continuously sued.[1]  Qualified immunity is a judge-made doctrine that originates from the 1967 Supreme Court case of Pierson v. Ray.[2] In Pierson, a racially integrated group of pastors attempted to sit in a segregated bus terminal in Jackson, Mississippi during the Civil Rights Movement.[3] The pastors were arrested for breaching the peace under a code that was later found unconstitutional (§ 2087.5 of the Mississippi Code). The pastors sued the police officers and the judge that sentenced them for false arrest and imprisonment.[4] The Court grappled with the possible liability of local police officers and judges under §1 of the Civil Rights Act of 1871, 17 Stat. 13.[5] While the Court decided that judges are immune from being sued for their decisions, the question was not as clear for police officers. Using common-law tort principles, the Court held that immunity through a defense of good faith and probable cause applied to the officers under §1983.[6] 

Since 1967, qualified immunity has evolved into a murky area of constitutional jurisprudence. Courts will ask several questions when a case involves qualified immunity, police officers, and the Fourth Amendment. First, courts will determine if the police officer used excessive force.[7] If so, courts will then ask if the officer should have known his or her conduct was illegal because it violated a “clearly established” prior court ruling that barred the conduct.[8]  To answer this question, courts use a fair warning standard, meaning that precedent must provide the officer with “fair warning” that his or her conduct crossed a Constitutional line.[9] 

Advocates for reforming or ending qualified immunity are raising cases that demonstrate the contemporary problems with the doctrine. However, the Supreme Court does not seem receptive to hearing new arguments on the issue, and recently denied certiorari for several cases involving qualified immunity.[10]

This blog examines qualified immunity through two recently rejected cases that discuss qualified immunity in the context of the Fourth Amendment. Part II uses Baxter v. Bracey to question how similar the facts of a case must be for a law to be clearly established. Part III explores Corbitt v. Vickers and the burden of proof in qualified immunity cases. Part IV discusses the shortcomings of qualified immunity and the judicial criticisms of the doctrine. Part V concludes with a recommendation that the Supreme Court reexamine and reform the qualified immunity doctrine.

II. Background on Baxter v. Bracey

A serious criticism of qualified immunity asserts that if the fact pattern of the alleged violation does not fit the facts of another case in that jurisdiction exactly, the officers will not be held to be “on notice” that their conduct violated constitutional principles.[11] The Petitioner in Baxter was a homeless man who was allegedly trying to steal electronics from unlocked homes.[12]  Several police officers responded to the burglary report and pursued Baxter into a basement of an unlocked home. After several warnings, Baxter surrendered by sitting down with his hands up in the air. While surrounded by police, one of the officers apparently released a dog to attack him.[13] Baxter sustained a bite in the armpit and was taken to the hospital for emergency treatment.[14]

 Baxter sued the officers for failure to prevent excessive force in violation of the Fourth Amendment.[15] After the evidence was examined by two judicial panels, the court decided that qualified immunity applied to the officers and granted the defendants’ motion for summary judgment.[16] The court compared Baxter to another plaintiff that was attacked by a police dog while he was lying on the ground. The court reasoned that because the prior case only found unlawful police action when the plaintiff was lying on the ground, sitting on the ground with his hands raised was different enough to be distinguishable.[17] The court declared that the police officer was not put on notice that a canine apprehension would be unlawful in the present situation since the cases were distinguishable.[18] Therefore, the court found justification for blocking the suit and granting the police officers qualified immunity.[19]

III.  Background on Corbitt v. Vickers

Another criticism of qualified immunity is the inconsistent application of which party carries the burden of proof.[20] In Corbitt, at least six officers were pursuing a suspect when the pursuit ended in the petitioner’s yard.[21] The children playing in the Corbitt’s yard were ordered to lay on the ground at gunpoint while the unarmed suspect was apprehended.[22] The family dog entered the yard, apparently not hostile to the officers. An officer shot at the dog twice and missed both times.[23] The second bullet penetrated through a ten-year-old’s leg, leaving him with severe physical and psychological injuries.[24]

The injured child’s mother sued the police officer for violating her son’s Fourth and Fourteenth Amendment rights.[25] The court initially denied the officer’s motion to dismiss, determining that qualified immunity was not applicable in this situation.[26] However, the 11th Circuit Court of Appeals reversed the district court on an interlocutory appeal by determining that the mother did not meet the high burden to overcome qualified immunity.[27] Since a case with similar facts did not exist, the mother needed to show “actual facts demonstrating that every objectively reasonable officer in [respondent’s] shoes would necessarily perceive a total lack of reason to subdue a dog roaming freely at the scene of an active arrest.”[28] The court then characterized the mother’s assertion that the dog was non-threatening as conclusory, granted the officer qualified immunity, and dismissed the case.[29]

IV. Discussion of Qualified Immunity

 Baxter and Corbitt illustrate the complexities of qualified immunity that result in severe limitations for plaintiffs to bring cases against police officers. In both cases, qualified immunity “had the effect of blocking allegations that sometimes seem outlandish because the Supreme Court has required that there be a prior case similar enough to put the officer on notice that their conduct violates constitutional principles.”[30]

The Supreme Court should revisit qualified immunity to address the problems the doctrine has created. At best, qualified immunity is overreaching and covers situations the doctrine was not originally meant to apply to. Critics of the doctrine declare that qualified immunity is dysfunctional, inconsistent, and confusing. Courts remain divided on what degree of factual similarity must exist for the law to be clearly established.[31] Courts also struggle with whether the plaintiff must plead facts to overcome a qualified immunity defense, or if the defendant should be required to prove it as an affirmative defense. [32] The confusion is illustrated in both Baxter and Corbitt, where two panels were given the same facts and produced different answers on whether the unconstitutionality of the officers’ actions was clearly established.

Several Justices have spoken up about the troubling trends seen with qualified immunity. Most recently, Justice Thomas dissented from the Court’s decision to deny certiorari in Baxter v. Bracey.[33] In his analysis, Justice Thomas notes that no defenses or immunities existed in the language of 42 U. S. C. § 1983.[34] Furthermore, he determined that there is likely no objective basis for qualified immunity because no leading treatises or case law supported a “clearly established law test” until the 1980s.[35] Justice Thomas concluded with strong doubts about the 1983 immunity doctrine, noting that he would have granted certiorari in this case.[36]

Judicial criticism of qualified immunity has not just come from the conservative side of the bench. Justice Sotomayor has been a vocal leader in advocating for reforming the doctrine. She has criticized qualified immunity as being an “absolute shield” for law enforcement officers.[37] Justice Sotomayor highlighted the unequal treatment given to qualified immunity cases depending on which party is bringing the complaint:

We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on “‘society as a whole,’” than does the erroneous denial of summary judgment in such cases.

V. Conclusion

Given the recent events surrounding racial inequality and social justice in 2020, reexamining the criminal legal system is more important than ever. Reforming or even disregarding qualified immunity represents a large and important step in the progression towards justice. Constricting qualified immunity would not mean that every plaintiff with a frivolous lawsuit could advance to trial. Rather, reexamining the qualified immunity would smooth the conflicting and muddled contours of the doctrine.  The Supreme Court is likely to see many more petitions asking for a review of qualified immunity as more and more time and resources are spent litigating the inconsistencies of the doctrine.  Although the Court has many significant issues to consider, the importance of qualified immunity demands immediate attention. 


[1] Jordan S. Rubin, et al., news.bloomberglaw.com/social-justice/how-the-law-shields-cops-from-suit-qualified-immunity-explained?context=article-related, Bloomberg Law (June 5, 2020).

[2] Pierson v. Ray, 386 U.S. 547, (1967).

[3] Id. at 552.

[4] Id. at 550.

[5] Id. at 548 (The statute is now codified as 42 U. S. C. § 1983).  

[6] Id. at 557.

[7] Nina Totenberg, Supreme Court Will Not Reexamine Doctrine That Shields Police In Misconduct Suits, https://www.npr.org/2020/06/15/876853817/supreme-court-will-not-re-examine-doctrine-that-shields-police-in-misconduct-sui (June 15, 2020).

[8] Id.

[9] Id.

[10] Id.

[11]. Baxter v. Bracey, 140 S. Ct. 1862 (2020).

[12] Id. at 4.

[13] Id. at 6.

[14] Id. 

[15] Id.

[16] Baxter at 5.

[17]Id. at 8.

[18] Id.

[19] Id.

[20] Brief for Petitioner at 12, No. 17-15566 (11th Cir. July 10, 2019).

[21] Id. at 6.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 8.

[26] Id.

[27] Id. at 9.

[28] Id. at 10.

[29] Id.

[30] Jordan S. Rubin, et al., news.bloomberglaw.com/social-justice/how-the-law-shields-cops-from-suit-qualified-immunity-explained?context=article-related, Bloomberg Law (June 5, 2020).

[31] Baxter at 9 (quoting Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018)).

[32] Corbitt at 3.

[33] Baxter v. Bracey, 140 S. Ct. 1862 (2020).

[34] Baxter at 2.

[35] Id. at 4.

[36] Id. at 6.

[37] Marcia Coyle, At Supreme Court, Sotomayor Is Leading Voice Against Alleged Police Abuses, https://www.law.com/nationallawjournal/2020/06/03/at-supreme-court-sotomayor-is-leading-voice-against-alleged-police-abuses/?slreturn=20200918213449 (June 3, 2020).

Sherlock Holmes: To What Extent Can a Character’s Feelings Be Copyrighted?

Photo by Kirk Lai on Unsplash

Carter Ostrowski, Associate Member, University of Cincinnati Law Review

I. Introduction

This past July, Detective Sherlock Holmes’ feelings became the subject of a copyright lawsuit.[1] Sherlock was created by the late Sir Arthur Conan Doyle and is known both for his superior powers of observation and lack of emotional attachment.[2] However, Doyle’s estate (“the Estate”) claims that Doyle humanized his detective by making Sherlock warmer and capable of friendship in his final ten stories.[3] Because these ten stories are still protected under copyright law, the Estate alleges that Netflix’s Enola Holmes and the novels from which it originates infringe those copyrights by using a version of Sherlock that displays warmth towards his younger sister Enola. Part II of this article will provide a brief overview of United States copyright law, especially as it pertains to the protection of literary characters. Part III will breakdown the claims raised by the Estate to protect a Sherlock with feelings. Part IV will evaluate the copyrightability of Sherlock’s emotional developments and present a case as to why the Estate’s claims are not likely to be successful. Finally, Part V will emphasize why the feelings of Sherlock specifically are not likely to be copyrightable.

II. Characters and Copyright

United States copyright law governs “original works of authorship fixed in any tangible medium of expression,” such as books, music, photographs, and computer programs.[4] Copyrights prohibit the copying of original works and exist to encourage the spread of knowledge.[5] In exchange for sharing their works with the public, authors, artists, and programmers are given legal protection over their works for a limited time.[6]

For a work to be copyrightable, it must be an original work by the author.[7] To be original, a work must not be plagiarized from another and must possess “at least some minimal degree of creativity.”[8] Although the creativity threshold is extremely low, there are a few categories of content that do not meet this standard.[9] For example, facts are not copyrightable.[10] While someone can be the first to discover a fact, it is not considered to be original because it has always been in existence.[11] Similarly, ideas, as opposed to expressions, are not copyrightable.[12] An idea can be described as an artist’s decision to paint stripes on a wall; anyone is free copy his idea, but they cannot copy the precise colors, size, and arrangement of the stripes that make up the artist’s expression of his idea.[13] In the context of fictional novels like Sherlock Holmes, ideas and expression fall more on a spectrum.[14] The idea-end of the spectrum consists of scènes à faire — stock scenes like navigating through a labyrinth or generic characters like an acne-covered teenager.[15] Generic scenes and characters shift toward the expression-end of the spectrum as they become distinctive; the more unique the literary element, the more likely it is to be original and therefore copyrightable.[16]

The copyrightability of characters is closely tied to the idea-expression spectrum. Judge Learned Hand wrote, “it follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”[17] To evaluate how developed a character is, courts have weighed descriptions, traits, histories, and even the depth of a character’s relationships with other characters in the fictional work.[18] James Bond is an example of a developed character.[19] The Central District of California found that Bond’s “cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; [and] his sophistication” made him a distinctive, copyrightable character.[20] Although there are other tests to determine the copyrightability of characters, Judge Hand’s test is used in the district where the current lawsuit is pending.[21]

III. Protections and Claims over Sherlock Holmes

Sherlock Holmes is a fictional detective that was introduced to the world in Sir Arthur Conan Doyle’s 1887 novella, A Study in Scarlet.[22] Sherlock became known for his superior powers of observation and his “true cold reason which [he] place[d] above all things.”[23] It is the pairing of brilliance and coldness that makes Sherlock a distinctive and copyrightable character. The idea of a genius detective is generic, but that genius combined with a deficiency in human sympathy, an aversion to women, and a disinclination to make friends produces a character with depth and individuality.[24] However, even though Sherlock is a copyrightable character, the copyright protection over Doyle’s works that were published between 1887 and 1922 expired as early as 1946 and as late as 1997.[25]

Once a copyright expires, the work it protected enters the public domain.[26] A work in the public domain belongs to the public and can be freely copied.[27] Copyright expiration becomes more complicated when applied to series, such as the various adventures of Sherlock Holmes. When the first story in a series enters the public domain, the subsequent stories do not also lose their copyrights.[28] These stories are considered derivative works and have their own copyright protections.[29] However, derivative works can only receive copyright protection over the elements of the story original to the derivative work.[30] For example, Doyle’s final ten Sherlock stories were published from 1923 to 1927. Because of the 1998 Copyright Term Extension Act, these final ten works enter(ed) the public domain between 2018 and 2022.[31] Therefore, even though all of Doyle’s stories written before 1923 were in the public domain by 1997, any element original to his 1923 to 1927 stories would still have been protected until at least 2018.[32]

Doyle’s content from this time period is the subject of the Estate’s pending copyright lawsuit against Netflix’s Enola Holmes and the novels from which the film was adapted.[33] The Estate claims that Doyle began to humanize Sherlock in his final ten stories and that the Enola Holmes novels written between 2006 and 2010 copy that humanized version of Sherlock.[34] Because Doyle’s final ten works were still under copyright protection at that time, the use of material original to the final ten Sherlock stories could infringe the Estate’s copyrights.[35]

The Estate alleges that Netflix and Nancy Springer, the author of the Enola Holmes novels, copied a warmer version of Sherlock that was original to Doyle’s final ten stories.[36] For example, in Doyle’s 1924 story, The Three Garridebs, Sherlock begs his partner Dr. Watson to assure him that Dr. Watson was not hurt after being shot.[37] The Estate claims that these words exemplify a previously unseen element of Sherlock’s character — genuine concern for a friend’s well-being.[38] Sherlock’s concern for his partner is then seen in Springer’s 2008 novel, The Case of the Bizarre Bouquets, in which Sherlock’s voice “tightened to the breaking point” over the possibility that Dr. Watson was murdered.[39] Sherlock’s expanded emotional capacity is also on display in Springer’s 2007 novel, The Case of the Left-Handed Lady.[40] In The Case of the Left-Handed Lady, Sherlock is described as “distraught” and “unable to eat or sleep” over the disappearance of his mother and sister.[41] Even though these examples could constitute copyright infringement of Doyle’s final ten Sherlock stories, Sherlock’s feelings in these stories must first be copyrightable.[42]

IV. Discussion

It is unlikely that Sherlock’s character traits introduced in Doyle’s final ten stories are copyrightable. Literary characters like Sherlock must be distinctive to be copyrightable.[43] Unfortunately for the Estate, Doyle’s late changes to Sherlock’s character might actually push Sherlock toward the idea-end of the character spectrum and into scènes à faire territory.

Sherlock’s identity is built around his brilliant mind working in tandem with his need for rational thinking untethered by emotional baggage.[44] By humanizing Sherlock and giving him emotional attachments to others, he may be seen as any other intelligent detective through the eyes of copyright law. In any fictional mystery, there would be no story to tell without at least one gifted mind to solve a puzzle that is otherwise unsolvable by the lay police officer. For example, Criminal Minds is a television series about a team of FBI agents in the BAU, or Behavioral Analysis Unit.[45] In Criminal Minds, the BAU agents are highly trained in criminal psychology; by examining a crime scene, the agents are able to gather far more information about the criminal than the local police.[46] The agents then use their superior observations to extensively narrow down their list of potential suspects and catch the criminal.[47] There would be no story to tell if the team were ordinary agents; by giving the agents a heighted knowledge of criminal psychology to solve the mystery, the series gains value. Characters with a heightened intellect are generic in mysteries because they are needed to solve the puzzle. In the case of Sherlock, without his coldness he is simply a genius detective with no distinctive qualities. Therefore, Sherlock becomes an uncopyrightable stock character when given emotional attachments because it destroys one of his major identifying characteristics.

In response, the Estate may argue that Sherlock’s later developed emotional capacity does not completely destroy his distinctive coldness. However, this rebuttal inadvertently equates Sherlock with the cliché cold or cynical character that either secretly cares about those closest to him or that develops a fondness for those closest to him over time.[48] When Doyle gave Sherlock the ability to express his concern about others it did not make him more distinctive, it made him human, and a human expressing human emotion is not original. Because Sherlock’s feelings do not add to his distinctiveness and because Sherlock’s development from a cold character into a warmer one is a common character arc, Sherlock’s feelings in Doyle’s final ten stories are not copyrightable.

V. Conclusion

Ultimately, it is unlikely that the emotional elements added to Sherlock’s character in Doyle’s final ten stories will warrant copyright protection. Although the original elements of derivative works are copyrightable, the court is likely to find that the alleged changes to Sherlock’s character are not original because they make him more generic, not more distinctive. Therefore, because Sherlock’s feelings are not likely to be copyrightable, the Estate will be unable to succeed on its infringement claims.


[1] Complaint for Injunction and Damages ¶¶ 1-4, No. 1:20-cv-00610.

[2] Id. ¶¶ 1, 18.

[3] Id. ¶ 20.

[4] 17 U.S.C. § 102 (1990).

[5] Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1261 (11th Cir. 2001).

[6] Id.

[7] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991).

[8] Id. at 358.

[9] Id. In Feist, the Supreme Court held that even factual compilations “that contain absolutely no protectible written expression” can meet the creativity minimum so long as the facts included were chosen for a reason, placed in an intentional order, or arranged so that they can be used effectively by readers. 499 U.S. at 348.

[10] Feist, 499 U.S. at 356.

[11] Id.at 361.

[12] Suntrust, 268 F.3d at 1264.

[13] 2 William F. Patry, Patry on Copyright § 4:31(1st ed. 2020).

[14] Suntrust, 268 F.3d at 1266.

[15] Clark v. Dashner, No. 14-00965 KG-KK, 2016 WL 4169223, at *13 (D.N.M. June 30, 2016).

[16] Suntrust, 268 F.3d at 1266.

[17] Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

[18] Suntrust, 268 F.3d at 1266-1267.

[19] Daniels v. Walt Disney Co., 958 F.3d 767, 771 (9th Cir. 2020).

[20] Id.

[21] Clark, 2016 WL 4169223, at *13. The other major test for determining the copyrightability of literary characters is whether the character “really constitutes the story being told” or is merely a vehicle to tell the story. Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954). However, the high bar set by the test make it less popular “since few characters so dominate the story such that it becomes essentially a character study.”  Daniels v. Walt Disney Co., 958 F.3d 767, 774 (9th Cir. 2020).

[22] Complaint for Injunction and Damages ¶ 3, No. 1:20-cv-00610.

[23] Id. ¶ 19.

[24] Id. ¶ 18.

[25] Copyright Act of 1976, 17 U.S.C. § 303 (1976) (amended 2012). The Copyright Act of 1976 increased the total copyright duration from 56 years to 75 years. However, for a work to receive the additional 19 years of protection, its copyright must have still been valid on January 1, 1978. Therefore, the copyright of a work published in 1921 would expire in 1977 and not receive the additional 19 years of protection, whereas the copyright of a work published in 1922 would not expire until sometime in 1997 because it would have still been in effect on January 1, 1978. Id.

[26] Suntrust, 268 F.3d at 1262.

[27] Id.

[28] Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496, 497 (7th Cir. 2014).

[29] Id. at 501.

[30] Id. at 497.

[31] Id.

[32] Id.

[33] Complaint for Injunction and Damages ¶ 27, No. 1:20-cv-00610.

[34] Id.

[35] Id. ¶ 2.

[36] Id. ¶ 33.

[37] Id. ¶ 30.

[38] Id.

[39] Id. ¶ 33.

[40] Id. ¶ 31.

[41] Id.

[42] Feist, 499 U.S. at 361. There are two elements necessary to establish copyright infringement: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Id.

[43] Nichols at 121.

[44] Complaint for Injunction and Damages ¶ 18, No. 1:20-cv-00610.

[45] About Criminal Minds, https://www.cbs.com/shows/criminal_minds/about/ (last visited Oct. 30, 2020).

[46] Id.

[47] Id.

[48] This cold-to-warm character arc is often referred to as the sugar-and-ice personality trope. Other characters that fall into this category include Severus Snape from Harry Potter, Mr. Darcy from Pride and Prejudice, and Temperance Brennan from Bones. Sugar-and-Ice Personality, https://tvtropes.org/pmwiki/pmwiki.php/Main/SugarAndIcePersonality (last visited Oct. 30, 2020).

To Spray Again or Not to Spray Again, Why is That Even a Question?

Photo by Spenser on Unsplash

Lucas Strakowski, Associate Member, University of Cincinnati Law Review

I. Introduction

In the wake of the Muslim Travel Ban enacted by President Trump in January 2017, people organized protests across the United States and throughout the world in response.[1] On January 30, 2017, the “Rally for the 99%” march was held close to home in nearby Columbus, Ohio.[2] At this protest, police deployed pepper spray to disperse a crowd of protestors. Several officers then subsequently pepper sprayed already incapacitated individual protestors a second time. Lawsuits against these officers quickly followed.  Part II presents factual background about one of these lawsuits and presents the trial court’s decision and reasoning. Part III presents the 6th Circuit’s analysis and decision on the trial court’s denial of qualified immunity. Part IV will provide background on pepper spray and its effects on a target. Part V will discuss the 6th Circuit’s analysis. Part VI will conclude.

II. “Abdur-Rahim I”: Factual Background and the Trial Court’s Analysis[3]

Ellen Abdur-Rahim participated in the “Rally for the 99%” march.[4] The march lasted from roughly 6:00 PM until sometime after 9:00 PM.[5] Protestors marched from the Ohio Statehouse to the Franklin County Court of Common Pleas, occasionally “flooding” the streets on the route, and then marched back towards the Statehouse around 7:53 PM.[6] During the march back, the protesters disrupted northbound lanes of High Street and 150 to 300 protesters filled the intersection of South High Street and State Street (the “Intersection”) around 8:15 PM and fully blocked traffic in all directions.[7] Within minutes, Columbus Police were on the scene, gave dispersal orders to the protesters, and warned that the police would use chemical agents to force compliance if the protestors ignored the orders.[8] About twenty minutes later, the Lieutenant on scene requested additional officers, and directed officers on-site to don their gas masks in front of the protesters as a show of force.[9] The protesters remained.[10] Around 9:04 PM, after the additional officers had arrived, the Lieutenant ordered all officers to use a two-second spray of mace over the heads of protesters to forcibly clear the Intersection.[11] The protesters quickly dispersed and the Intersection was fully cleared around 9:24 PM.[12] No injuries to officers or protestors occurred other than injuries directly related to pepper spray exposure, and no arrests were made.[13]

Abdur-Rahim was in the “front line” of the crowd, very close to the line of police officers who fired the initial two-second spray.[14] She was behind a large banner and wore a hijab, but the initial spray rapidly seeped through both barriers anyway, which caused her to flee in the opposite direction away from the intersection.[15] Immediately after the first spraying, officers began to clear remaining protesters out of the street.[16] Officer Justin Masters then “used his left hand to give Abdur-Rahim a shove on the shoulder and then sprayed mace in her face.”[17] She experienced burning and pain from the pepper spray for a significant amount of time after the second spraying.[18] It took Abdur-Rahim some time to decontaminate herself, as she traveled from a nearby pizza shop restroom, then asked a nearby EMT for help, and finally obtained a ride to a friend’s house to fully wash off the pepper spray.[19] In addition to the physical trauma she suffered on the night of the protest, her mental health has also suffered since the incident.[20]

Abdur-Rahim brought several claims against Officer Masters.[21] These included a 42 U.S.C. §1983 claim for violating her First Amendment rights to be free from retaliation, a 42 U.S.C. §1983 claim for violating her Fourth Amendment rights protecting against the use of excessive force, and state law assault and battery claims.[22] Importantly, the trial and appellate court came to an express disagreement on the Fourth Amendment excessive force claim, which is discussed below. The parties both moved for summary judgment on all claims.[23]

Since Abdur-Rahim was free before the seizure and Officer Masters used the pepper spray to seize her, the claim would be analyzed using a Fourth Amendment reasonableness of the use of force test and not a Fourteenth Amendment due process test.[24] Courts in the Sixth Circuit approach a Fourth Amendment excessive force claim in segments: (1) the court identifies the seizure at issue, and (2) the court examines whether the force used to affect that seizure was reasonable.[25] The trial court quickly determined that Officer Masters seized Abdur-Rahim as soon as he sprayed her directly with pepper spray.[26] Next, the court analyzed whether the force used to affect the seizure was reasonable.[27] To determine reasonableness of a use of force, courts in the Sixth Circuit use a balancing test with three factors: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.[28] The court also provided the caveat that the factors are not conclusive, but the seizure must ultimately be justified under the “totality of the circumstances.”[29] The court noted that, in the Sixth Circuit, the use of force is unreasonable on a person who is already incapacitated, not under arrest, or not resisting arrest.[30] Moreover, the use of pepper spray has been “specifically limited” as a method of force in the Sixth Circuit.[31] Ultimately, the trial court found that whether the force used on Abdur-Rahim was reasonable contained genuine disputes of material fact, because the video evidence provided did not conclusively show whether Abdur-Rahim was actively resisting police orders or was incapacitated, and the court held that a reasonable fact-finder could decide the issue in favor of either side, precluding summary judgment on the issue.[32]

Officer Masters also moved for summary judgment in favor of a qualified immunity defense to the Fourth Amendment claims.[33] For qualified immunity to be denied to an officer, a constitutional right must have been violated and that right must be “clearly established at the time of the official’s alleged misconduct.”[34] Importantly, unlike a Fourth Amendment reasonableness issue in which disputed facts may be decided either way by the fact-finder, the court views disputed facts under a qualified immunity summary judgment analysis in the light most favorable to the plaintiff.[35] The court further explained that, in the Sixth Circuit, the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”[36] However, the right does not need to be “a case with the exact same fact pattern, or even ‘fundamentally similar’ or ‘materially similar’ facts; rather, the question is whether the defendants had ‘fair warning’ that their actions were unconstitutional.”[37] The court noted that the right to be free from physical force when one is not resisting the police is a clearly established right, and that additional use of force after mace has already incapacitated a suspect is excessive force.[38] As such, the court held that, for purposes of the qualified immunity summary judgment analysis, Officer Masters clearly violated Adbur-Rahim’s Fourth Amendment rights to be free from use of excessive force during a seizure, and denied summary judgment in favor of Officer Masters.[39] If the factfinder then determined that the use of force to affect the seizure was unreasonable, Officer Masters could be found liable for a § 1983 Fourth Amendment excessive force claim.[40]

III. “Abdur-Rahim II”: The Sixth Circuit’s Reversal[41]

The district court’s denial of qualified immunity, as it presented an appealable question of law, was then appealed to the Sixth Circuit.[42] The Sixth Circuit refused to follow the reasoning provided by the district court because the district court “failed to define the right [to be free from excessive force] with requisite specificity and failed to identify a case where an officer acted under similar circumstances.”[43] The Sixth Circuit decided that because precedent only identified cases in which the initial use of force was against an individual, and not a crowd, a case in which a second use of pepper spray on an individual who had been incapacitated by a general pepper spraying on a crowd was not sufficiently similar to precedent to put an officer on notice.[44]

The Sixth Circuit emphasized this point by noting that the cases cited by the Plaintiff and by the district court only contained reasonableness of use of force against an individual arrestee who had already been restrained or subdued, an even more narrow set of facts than just the crowd and individual difference.[45] Specifically, the Sixth Circuit stated that Abdur-Rahim had not provided a case that would have put Officer Masters on notice that “it constitutes excessive force to pepper spray directly a lingering individual blocking an intersection after forty-five minutes of dispersal orders and warnings, followed by a general spray over a crowd.”[46] Ultimately, the Sixth Circuit reversed the denial of qualified immunity on the Fourth Amendment issue, but affirmed the district court’s denial of summary judgment in favor of Officer Masters on the state law assault and battery causes of action, and remanded the case.[47]

IV. Background on Pepper Spray and Chemical Irritants[48]

Oleoresin capsicum—the chemical compound name for pepper spray—is a crowd control weapon included in the “chemical irritant” classification of crowd control weapons.[49] “Agent OC,” for short, is essentially a highly concentrated form of hot pepper.[50] It became a law enforcement weapon in the late 1980s, is now available as a spray or gas, and can be found in varying strengths for military or law enforcement use and lower strengths for civilian self-defense.[51] The strength of the weapon itself is derived from the strength of the “capsicum,” which is the chemical in hot peppers that make them “hot.”[52]

Chemical irritants are typically released between a range of one foot to about ten feet from the target, depending on the strength of the weapon, the spray pattern of the dispersal canister, pressure of the spray mechanism itself, and atmospheric conditions.[53] Pepper spray has not been well-studied for its lethality, as the varying concentrations of measurement of capsicum within a particular pepper spray is difficult to verify.[54] Chemical irritants have garnered a reputation as being generally safe with few, if any, long term effects from exposure.[55] However, a medical literature 25-year review of studies on the effects of pepper spray has revealed that, even if it is “safer” than more potent chemical irritants such as chlorobenzalmalononitrile (“agent CS,” the defining component of tear gas), pepper spray has resulted in thousands of injuries over the past 25 years,[56] including over four hundred “severe injuries.”[57]

Pepper spray, because it is a physiological agent and not a pain agent like other chemical irritants, is desirable for law enforcement as it reduces excessive force complaints and litigation because it does not cause pain and suffering above that of the effects themselves.[58] However, as a physiological agent, the reaction to being sprayed by OC is nearly instantaneous.[59] OC causes an immediate burning sensation in any contacted areas, as well as a “burning, tearing, and swelling of the eyes” to such an extent that it blinds or otherwise incapacitates the target.[60] Even as early as 1994, the risks to those with pre-existing conditions such as respiratory problems were noted.[61] Because pepper spray produces a physiological response, a person does not have much, if any, control over the extent of the response.[62] To keep the subject from becoming more violent or disturbed, the DOJ warned that officers should “[reassure the subject] that nothing further will happen to him or her . . . [w]ithout this reassurance, the subject may again become violent from frustration or in an effort to escape discomfort.”[63]

V. Discussion

The Sixth Circuit erred when it reversed the denial summary judgment in favor of qualified immunity in this case; the court should not have granted qualified immunity to Officer Masters. The Supreme Court recently clarified the standards for qualified immunity and whether a constitutional right is “clearly established.”[64] In Kisela v. Hughes, the Supreme Court pointed out that specificity is important in the Fourth Amendment Context because each case is fact-dependent, and that precedent involving “similar facts” can notify an officer that a specific use of force is unlawful, because officers may not be able to determine how excessive force will apply to a factual situation they are confronting.[65] However, the Court also noted that “general statements of law are not inherently incapable of giving fair and clear warning to officers.”[66] In Kisela, the Court reversed a denial of qualified immunity because in a previous case in the same Circuit, with a near identical set of facts, the officer was granted qualified immunity.[67] The Court noted a reasonable officer could have known about the other case and believed that such actions were reasonable considering the previous Ninth Circuit ruling granting qualified immunity and reversed the denial of qualified immunity in Kisela as a result.[68]

The Sixth Circuit held in Abdur-Rahim II that “the right to be free from physical force when one is not resisting the police” is not a “clearly established” right because it is not “particularized” to a case.[69] However, such a right is clearly established under multiple fact patterns as the Sixth Circuit then proceeds to list in the next paragraph.[70] Instead, the Sixth Circuit held that because none of the listed cases involved a general spray over a crowd and then subsequent spray on an individual, a reasonable officer would not have known the conduct was unlawful.[71] This supposition is absurd. The effects of pepper spray on an individual can be, even if only temporarily, catastrophic on body functions. Both briefs in the case acknowledge that Abdur-Rahim was not resisting, but that she crouched in pain and covered her face with her hijab to prevent more of the pepper spray particles from getting onto her face and in her eyes.[72] The second spray was far more violent in its results: it fused Abdur-Rahim’s contacts to her eyes, which trapped the chemical against her eyes and temporarily blinded her as well as burned exposed skin and permeated her clothes.[73] “Reasonable” officers officer were actually on-scene at the protest: instead of pepper spraying individuals a second time, they simply asked people to move to or escorted people to the sidewalk without resorting to further spraying.[74]

Moreover, as the Sixth Circuit itself has noted in the past, somewhat facetiously, that for qualified immunity analysis: “it defeats the purpose of 1983 to define the [clearly established] right too narrowly ([such] as the right to be free of needless assaults by left-handed police officers during Tuesday siestas).”[75] The right to be free from being pepper sprayed while already incapacitated, blinded, hobbled, or otherwise not resisting or posing an issue to officers is sufficiently particularized to be applicable and put an officer on notice, and has been Sixth Circuit precedent for over twenty-five years.[76] The application in this case of such a precedent is straightforward. A reasonable officer would know it is excessive force to use pepper spray on an already incapacitated individual. Since a question of material fact remains on whether Abdur-Rahim was truly incapacitated after the initial spraying, a summary judgment ruling in favor of qualified immunity is not appropriate in this case. Here, viewing the facts in the light most favorable to the plaintiff, is as required in this analysis, the police officer used pepper spray on an already incapacitated individual. As such, Officer Masters should have been precluded from receiving qualified immunity on summary judgment. Moreover, whether the individual is incapacitated to begin with is the only relevant factor, not what caused the incapacitation in the first place. Moreover, an excessive force violation could be established when he subsequently sprayed her directly in the face with no warning, since Officer Masters admitted he knew that Abdur-Rahim was incapacitated, blinded, or otherwise “hobbled” by the initial spraying.

Instead, the Sixth Circuit has expanded the ever-growing shadow of qualified immunity to protect increasingly egregious and violent conduct of police officers committed against people exercising constitutional rights or simply existing in a space to begin with. Regardless, facts that are contested are supposed to be viewed in the light most favorable to the plaintiff. The Sixth Circuit failed to so consider the issue of Abdur-Rahim’s possible incapacitation, and erred when it reversed the district court’s denial of qualified immunity per summary judgment as a result.

VI. Conclusion

The Sixth Circuit’s holding could dangerously encourage police violence against protesters. With the extent of protest activity during recent years, including the Black Lives Matter marches, the Women’s Day marches, the anti-Travel Ban marches, and others, interactions between protesters and police have become both more frequent and more hostile. As pepper spray has been used and studied more thoroughly, it has been discovered that it may not be so harmless as initially thought. To hold a gratuitous use of pepper spray on an already incapacitated or hobbled individual in a protest as “reasonable” may have lasting repercussions in not just the Sixth Circuit but in other Circuits throughout the country.  


[1] See e.g. “Protests erupt at airports nationwide over immigration action,” CBS News, https://www.cbsnews.com/news/protests-airports-immigration-action-president-trump/, (first published Jan 28, 2017, 7:41 PM; updated Jan 29, 2017, 12:50 AM).

[2] Abdur-Rahim v. City of Columbus, 425 F.Supp.3d 935 (S.D. Ohio 2019).

[3] Abdur-Rahim v. City of Columbus, 425 F.Supp.3d 935 (S.D. Ohio 2019). While two plaintiffs are named in this case, the Sixth Circuit appeal that followed was only in regards to the trial court ruling on Ellen Abdur-Rahim’s case, and, as such, this article will only discuss her cause of action, and will not discuss the other Plaintiff, Harrison Kallner.

[4] Id. at 943.

[5] Id. at 941, 942.

[6] Id. at 941.

[7] Id.

[8] Abdur-Rahim I, 425 F.Supp.3d at 942.

[9] Id.

[10] Id.

[11] Id. See also NBC4 Columbus, Columbus Police video shows officers pepper spraying anti-Trump protestors, YouTube (published February 9, 2017), https://www.youtube.com/watch?v=WcyXR1zZVtk&ab_channel=NBC4Columbus (for video of the initial pepper spray deployment, please view the video from about timestamp 17:00 until the end of the video).

[12] Abdur-Rahim I, 425 F.Supp.3d at 942.

[13] Id.

[14] Id. at 943.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Abdur-Rahim I, 425 F.Supp.3d at 944.

[23] Id. at 943.

[24] Id. at 945.

[25] Id. at 947.

[26] Id.

[27] Id.

[28] Id. (quoting Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013)).

[29] Abdur-Rahim I, 425 F.Supp.3d at 947.

[30] Id.at 947-8 (citing Grawey v. Drury, 567 F.3d 302, 311 (6th Cir. 2009)).

[31] Abdur-Rahim I, at 948.

[32] Id. at 949.

[33] Id. at 950.

[34] Id. (citing Grawey, 567 F.3d at 309).

[35] Abdur-Rahim I, 425 F.Supp.3d at 950 (“Thus, to the extent that there is a disagreement about the facts, the evidence must be reviewed in the light most favorable to the plaintiff”).

[36] Id. (quoting Roell v. Hamilton Cnty., 870 F.3d 471, 483 (6th Cir. 2017)).

[37] Abdur-Rahim I, 425 F.Supp.3d at 951 (quoting Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005)).

[38] Abdur-Rahim I, 425 F.Supp.3d at 951-952.

[39] Id. at 951.

[40] Id. at 945.

[41] Abdur-Rahim v. City of Columbus, Ohio, 2020 WL 5033411 (6th Cir. 2020).

[42] Id. at *2.

[43] Id.

[44] Id. at *3 (“But again, none of our cases has extended [the proposition that the use of force after mace has incapacitated a suspect is excessive] to apply when using pepper spray to disperse a crowd.”).

[45] Id.

[46] Abdur-Rahim II, at *3.

[47] Id. at *4.

[48] For video footage demonstrations of pepper spray’s effects on a subject, see e.g. MSC Self-Defense, Pepper Sprayed! MSC Self Defense Sprays Volunteer! OUCH!, YouTube (September 4, 2011), https://www.youtube.com/watch?v=f__EintzF74&ab_channel=MSCDefense; see also VCU Police, VCU Police: The Dos and Don’ts of Using Pepper Spray, YouTube (May 9, 2016), https://www.youtube.com/watch?v=Vwbt6BFd3dk&ab_channel=VCUPolice.

[49] International Network of Civil Liberties Organizations, Lethal in Disguise: The Health Consequences of Crowd-Control Weapons, 39, (March 1, 2016) [hereinafter “Lethal in Disguise”].

[50] Lethal in Disguise, supra note 47, at 40.

[51] Lethal in Disguise, supra note 48.

[52] Lethal in Disguise, supra note 48.

[53] Lethal in Disguise, supra note 48.

[54] Lethal in Disguise, supra note 48.

[55] Lethal in Disguise, supra note 47, at 39.

[56] See generally Haar, Rohini J., et. al., Health Impacts of Chemical Irritants Used for Crowd Control: A Systematic Review of the Injuries and Deaths Caused by Tear Gas and Pepper Spray, BMC Public Health (Oct. 19, 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5649076/. In total, the study found over seven thousand injuries from pepper spray (referred to as “OC” or “Agent OC” in the study).

[57] Lethal in Disguise, supra note 47,at 48. See also Haar, Rohini J., et al., supra note 54. A “severe” injury in the review is defined as any injury that “necessitate[d] professional medical care, such as lacerations requiring sutures, second- or third-degree burns, airway obstruction, severe ocular trauma, cardiopulmonary disease, or abdominal injuries requiring medical or surgical management.”

[58] U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, Technology Assistance Program, Oleoresin Capsicum: Pepper Spray as a Force Alternative, 1, (March 1994).

[59] U.S. Department of Justice, supra note 56.

[60] U.S. Department of Justice, supra note 56, at 3.

[61] U.S. Department of Justice, supra note 56 (“Limitations of Pepper Sprays . . . OC sprays cause upper respiratory inflammation; therefore, they may have detrimental effects on people with preexisting [sic] respiratory problems”).

[62] U.S. Department of Justice, supra note 56,at 1 (noting that one of the touted benefits of OC is that it blinds even subjects who are under the effects of potent substances like PCP, while “pain-based” crowd control weapons have little effect on such subjects).

[63] U.S. Department of Justice, supra note 56, at 4.

[64] Id. at 1152 (2018).

[65] Id. at 1152-3. The Court notes that caselaw does not require a case directly on point for a right to be clearly established but that existing precedent must have placed the statutory or constitutional question “beyond debate.”

[66] Id. at 1153.

[67] See generally Blanford v. Sacramento County, 406 F.3d 1110 (9th Cir. 2005). In both Kisela and Blanford, the police responded to a man acting erratically. Further, in both cases, the police shot the suspect after he had refused to obey (possibly unheard) commands to drop his weapon. In both cases, the police believed the suspect to be an immediate threat, and the Court of Appeals in Blanford granted qualified immunity.

[68] Kisela v. Hughes, 138 S.Ct. at 1153-4.

[69] Id. at *2. This holding is also peculiar because even the brief for defendant acknowledges the “right to be free from physical force when one is not resisting the police is a clearly established right,” without any additional need for the plaintiff to further particularize the right. See Reply Br. Def.-Appellant Justin Masters, 2020 WL 1976581, *4 (Westlaw 2020).

[70] The Sixth Circuit lists some cases involving pepper spray, noting that excessive force was found when:

(1) an already blinded and incapacitated suspect was then pepper sprayed after complying with police orders,

(2) an already pepper sprayed suspect was subsequently beaten,

(3) a suspect was pepper sprayed after placing hands against a wall and was not otherwise resisting police orders,

(4) a suspect who was not threatening others’ safety, did not flee, and was also restrained was subsequently pepper sprayed,

(5) a suspect was pepper sprayed twice but officers did not inform that the suspect was under arrest or that he committed a crime, and did not preemptively warn about the use of pepper spray, or

(6) the officer ultimately conceded there was “no cause to spray”.

See Abdur-Rahim v. City of Columbus, Ohio, 2020 WL 5033411 at *3.

[71] Id.

[72] Rep. Br. Def.-Appellant Justin Masters, at *11-12; Corrected Br. Pl.-Appellee Ellen Abdur-Rahim, 2020 WL 1503318, *6-7 (Westlaw 2020). Furthermore, it is irrelevant whether Officer Masters knew or did not know if Abdur-Rahim could not see because of the initial pepper spray as stated in the Reply Brief. See Rep. Br. of Def.-Appellant Justin Masters at *12. He apparently admitted in a deposition that he knew that the protesters, including Abdur-Rahim, could not see where they were going due to the initial pepper spray deployment. Corrected Br. Pl.-Appellant, at *9. Even if he had not admitted to knowing of the likelihood of Abdur-Rahim already being incapacitated, the question is not Masters’s own knowledge but what a reasonable officer would know regarding exposure to pepper spray. A reasonable officer would likely know how fast and effective pepper spray is, and how someone who has been subjected to the effects of pepper spray is effectively incapacitated.

[73] Corrected Br. Pl.-Appellee Ellen Abdur-Rahim, at *7-8.

[74] Rep. Br. Def.-Appellant Justin Masters, at *12.

[75] Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012).

[76] See generally Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994).

Parental Leave: Equal Treatment for Moms and Dad

Photo by Hu Chen on Unsplash

Kassidy Michel, Associate Member, University of Cincinnati Law Review

I. Introduction

Parental leave is an important topic for workers across the country and across the world. Although almost all developed nations across the world have a national policy that provides for paid parental leave, the United States is not among those nations.[1] However, the issue of parental leave has gained momentum since eight states, including California, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, and Washington, have enacted policies to give paid family leave in their jurisdictions.[2] On August 13, 2019, two former attorneys from Jones Day filed suit against their former employer, claiming Jones Day’s parental leave policy for its attorneys and other employees discriminates based on sex.[3] This lawsuit is just one of several discriminatory parental leave cases that have been filed against employers in the United States recently. This blog will discuss the ongoing parental leave case, Savignac v. Day[4], and the increasing trend of parental leave cases in general.

II. Background

On August 13, 2019, in a complaint filed in the United States District Court for the District of Columbia, husband and wife lawyers Mark Savignac and Julia Sheketoff alleged, among other things, that “Jones Day’s parental leave policy discriminates on the basis of sex and archaic gender roles by giving eight more weeks of leave to all women than to men.”[5] Like many modern families, Savignac and Sheketoff wished to share equally their parental roles without being penalized by their workplaces.[6] The complaint goes on to allege that Mr. Savignoc was fired from Jones Day because he sent an email to the firm challenging its leave policy as discriminatory and demanding equal treatment for Savignoc.[7] The specific policy challenged in the complaint provides primary caregivers with 18 weeks of paid leave for biological mothers, 10 weeks of paid leave for biological fathers, and 18 weeks of paid leave for adoptive parents.[8] The extra eight weeks of leave for biological mothers is considered disability leave, but all biological mothers are given the full 18 weeks regardless of disability from childbirth.[9]

Savignac’s and Sheketoff’s claims say that Jones Day’s parental leave policies discriminate on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the D.C. Human Rights Act.[10] If the plaintiff’s claims are proven, they could constitute sex-based disparate treatment under those acts.[11]

Jones Day responded to this initial claim by posting a response on their website from the firm’s managing partner, Stephen J. Brogan. In this statement, Brogan defends the firm’s parental leave policies and states the firm “intends to try this case in court, not in the media, and will have no further comment beyond the pleadings and proofs in the case.”[12]

Federal Judge Randolph Moss of the District of Columbia ruled on September 4, 2020 that “the Court cannot resolve on the pleadings the central question raised by Plaintiffs.”[13] Accordingly, the case is continued and will be set for trial in the future.

III. Discussion

The Savignoc v. Day case comes at a time when more people are challenging their business’s parental leave policies based on sex discrimination charges. Many claims against businesses are brought to court on the basis that the parental leave policies discriminate against new fathers because, traditionally, men have been considered the secondary caregivers of the family. According to U.S. Census data, an estimate of 7 million men identify as stay-at-home dads.[14] This number has significantly increased over the past ten years and continues to rise. As gender norms are shifting from the archaic viewpoint of women as stay-at-home moms, there becomes a larger need for fathers to have similar benefits as women, such as paid paternal leave.

Firms, banks, and corporations have been sued over allegations that their parental leave policies disproportionately discriminate against fathers. Typically, these lawsuits tend to settle in the favor of the plaintiff.[15] On July 17, 2018, Estée Lauder entered a settlement agreement to pay a total of $1,1 million to the class of male employees who received only two weeks of paid parental leave as compared to the six weeks paid leave that new mothers received.[16] The court’s decree also required Estée Lauder to create parental leave policies that are equal for male and female employees, including using sex-neutral criteria, requirements, and processes.[17] In May 2018, Estée Lauder changed its parental leave policy to give new parents, regardless of gender, 20 weeks of paid leave.[18]

In a similar case against JPMorgan Chase Bank, a group of male employees received a $5 million nationwide settlement after alleging the Bank discriminated against new fathers in the banks’ parental leave policies.[19] Derek Rotondo, the class representative, brought the suit against the Bank after he was denied the 16 week parental leave benefit because his wife had not gone back to work after giving birth.[20] On top of the settlement cost, JPMorgan also consented to provide gender-neutral parental leave policies, which the company maintains as a policy.[21]

Corporate America, including law firms, has made great strides towards gender equality within the workplace. Parental leave is one way to narrow that gender gap, by allowing men the same opportunities as women to connect with their new-born children and take care of them on paid leave. Allowing men the opportunity to have as much paid leave for a newborn child would help with gender equality because women will not be at a disadvantage to their peers because of their leave. Women will be able to focus on their child during their paid leave, without the fear that the men at her same level are forging ahead of her in their careers because the men did not take any time off when they welcomed their children into the world.

IV. Conclusion

Many corporations and businesses are moving away from terms such as “maternity” and “paternity” leave because those traditional gender roles are changing. Women are not always the primary caregivers in every family. With the increase in cases against corporations regarding parental leave, it will be interesting to see how companies react and change their own specific policies to reflect the changing norms. It will also be interesting to see whether Jones Day settles with Mark Savignac and Julia Sheketoff, given the climate of parental leave cases as of late. Whether or not women and men choose to take their total parental leave is up to them. However, having the option to take such a leave allows parents to make their own decisions on how to care for their new children.


[1] Kellie Pantekoek, Paid Parental Leave in the U.S. vs. Other Developed Countries, FINDLAW (Apr. 10, 2020), https://employment.findlaw.com/family-medical-leave/paid-parental-leave-in-the-u-s–vs–other-developed-countries.html.

[2] Paid Family and Sick Leave in the U.S., KFF (Jan. 28, 2020),https://www.kff.org/womens-health-policy/fact-sheet/paid-family-leave-and-sick-days-in-the-u-s/#:~:text=Currently%2C%20eight%20states%20%E2%80%93%20California%2C,(plus%20D.C.)%20in%202017.

[3] Brief for Petitioner, Savignac v. Day, No. 19-2443, 2020 U.S. Dist. LEXIS 161819 (D. D.C. Sept. 4, 2020).

[4] Savignac v. Day, No. 19-2443, 2020 U.S. Dist. LEXIS 161819 (D. D.C. Sept. 4, 2020).

[5] See brief cited supra note 3 at 2.

[6] See supra note 3 at 2.  

[7] See supra note 3 at 8.

[8] See supra note 3at 13-14.

[9] See supra note 3at 14.

[10] See supra note 3at 25.

[11] Patrick Dorrian and Erin Mulvaney, Jones Day Couple Can Pursue Dad Leave, Other Bias Claims, BLOOMBERG LAW (Sept. 4, 2020, 3:50 PM),https://news.bloomberglaw.com/daily-labor-report/jones-day-couple-can-pursue-parental-leave-other-bias-claims.

[12] Stephen J. Brogan, Jones Day Responds to Litigation Challenging Leave Policy, JONES DAY (August 2019),https://www.jonesday.com/en/news/2019/08/jones-day-responds-to-litigation.

[13] Savignac v. Day, No. 19-2443, 2020 U.S. Dist. LEXIS 161819, at *48 (D. D.C. Sept. 4, 2020).

[14] Catherine Crider, Stay-at-Home Dads: The Challenges and Benefits, PARENTHOOD (May 19, 2020),https://www.healthline.com/health/parenting/stay-at-home-dad#statistics.

[15] Julie Steinberg and Erin Mulvaney, Jones Day Says Parental Leave Suit Fails ‘On Its Own Terms’, BLOOMBERG LAW (Oct. 18, 2019, 10:42 AM),https://news.bloomberglaw.com/us-law-week/jones-day-says-parental-leave-suit-fails-on-its-own-terms.

[16] Press Release, U.S. Equal Emp. Opportunity Comm’n, Estée Lauder Companies to Pay $1.1 Million to Settle EEOC Class Sex Discrimination Lawsuit (Aug. 17, 2018) (on file with author).

[17] Id.

[18] Genevieve Douglas, Employers on Notice After Estée Lauder Parental Leave Settlement, BLOOMBERG LAW (July 19, 2018, 8:41 AM),https://news.bloomberglaw.com/daily-labor-report/employers-on-notice-after-estee-lauder-parental-leave-settlement.

[19] Kathleen Dailey, JPMorgan Dads Win $5 Million Settlement for Parental Leave Bias, BLOOMBERG LAW (Nov. 21, 2019, 4:39 PM),https://news.bloomberglaw.com/daily-labor-report/jpmorgan-dads-win-5-million-settlement-for-parental-leave-bias.

[20] Id.

[21] Id.; See also Laura Elizabeth, How Do You Keep Good Employees? Care For Their Families, OZY (Feb. 15, 2018), https://www.ozy.com/news-and-politics/how-do-you-keep-good-employees-care-for-their-families/83854/.

Comparing Property Rights of Native Americans and Indigenous Australians

Photo by MJ Tangonan on Unsplash

Rebekah Durham, Associate Member, University of Cincinnati Law Review

I. Introduction

Australia and the United States share many common themes in their histories. They were both settled as colonies of Great Britain, gained their independence, and flourished into two of the most affluent western nations on Earth. Australia and the United States also possess very similar legal systems, as both evolved from British common law but since becoming independent, have taken on some of their own features.[1] A less positive element that the two countries share is the expulsion of native populations from their own lands by conquerors claiming the title of a more powerful State. Dozens of Native American tribes were either killed or pushed further and further west by a growing United States throughout the 18th and 19th centuries.[2] While Australia was still under British sovereignty, Aboriginal and Torres Strait Islander peoples were denied their own property rights by a government claiming the authority of the British crown.[3] This article will compare the historical land rights of Native Americans and Aboriginals[4] and their current status in property law, showing how Australia, as a younger nation, might learn from the United States and find a more equitable way to divide title over native lands.

II. A Brief History of Native American Property Rights

The foundational case in Native American property law was decided in 1823, when the United States Supreme Court decided Johnson v. M’Intosh.[5] The dispute in Johnson involved two claims over a certain tract of land in Illinois – one claim based on a purchase from the Piankeshaw Indians before the American Revolution and the other based on a later grant from the United States government.[6] The Supreme Court, in an opinion by Chief Justice Marshall, upheld claim of title that was based on the United States government grant and held that Native Americans were only occupants of their land and “incapable of transferring the absolute title to others.”[7] This case proved to be fundamental not only to American property law, but also to the property law traditions of several other former British colonies, including Australia.[8] Johnson was in one sense an extraordinary case for its time because it recognized a real Native American right of occupancy, which in a might-makes-right world shaped by conquerors and colonizers, was almost unprecedented.[9] But while Johnson did cement at an early date the occupancy rights of Native Americans, it also held that those rights are subordinate to the United States government and can be taken away at any time.[10]

The Johnson decision was rooted in the doctrine of title by conquest. As Chief Justice Marshall explained in his opinion: “Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.”[11] Essentially, he was acknowledging the fact that conquerors have power over the land that they conquer, whether we like it or not. Chief Justice Marshall went on to defend the rights of Native Americans to occupy their land, basing his reasoning on “humanity” and “public opinion.”[12] The end result was that the United States government could legally assert ultimate title to all its lands, a title which trumped the Native American right of occupancy.[13]

The Supreme Court consistently maintained throughout the expansion of United States land ownership that Native Americans did not own the land on which they lived.[14] In 1955, the Supreme Court decided a case called Tee-Hit-Ton Indians v. United States, a dispute over timber taken by the government from the lands of an Alaskan Indian tribe without compensation.[15] The Court reaffirmed that Native American title is really a misnomer, and that their land rights amount to no more than a license to use.[16] Tee-Hit-Ton Indians also held that the Fifth Amendment right to compensation for property taken by the government did not apply to Native Americans.[17] According to the majority opinion, the United States was justified in forcibly seizing Native American property by decades of doing so almost habitually.[18]

Native American tribal lands in the United States today encompass about 52 million acres of land, slightly less than the area of the state of Idaho.[19] These lands, known as Indian Reservations, are held “in trust” by the United States government for the use of specific Native American tribes.[20] Some other land is held in “allotments” by individual tribe members, but the majority of Native American land consists of reservations.[21] These reservations, which were created largely by treaties[22] between the United States government and particular Native American tribes, are “owned” collectively by those tribes under the ultimate title of the United States.[23] This communally owned land is highly regulated by the Bureau of Indian Affairs, and cannot be sold, mortgaged, or transferred.[24] The result is that a majority of Native Americans live on borrowed land that they cannot sell, nor can they capitalize on the natural resources that the land contains. This past term, the Supreme Court considered Native American land rights when it held in McGirt v. Oklahoma that a significant portion of Eastern Oklahoma, almost half the state, continued to be a reservation belonging to the Creek Indians in accordance with the 1832 Treaty with the Creeks.[25] While this victory affirmed the right of the Creek Nation to self-governance, it did not give them meaningful title to the land, as they still could not pass ordinances “affecting the lands of the Tribe” without approval from the President of the United States.[26]

III. A Brief History of Australian Aboriginal Property Rights

Australia only became a fully independent nation in 1986, when the Australia Act was passed and the country was removed from the shadow of British legislative and judicial power.[27] Before 1986, decisions of Australian courts could be appealed to the British Privy Council, and it was only after formal independence was declared that the Australian High Court (“High Court”) was completely free to create common law doctrines distinct from the British tradition.[28] During the time that Australia was still considered a colony subject to British Law, the land rights of Aboriginals were virtually unrecognized.[29] As soon as Australian judicial independence was established, the High Court was faced with one of its biggest challenges – a request for recognition of native title brought by the Meriam people, native inhabitants of the Murray Islands off the northeast coast of Australia.[30]

Mabo v. Queensland was a 1992 case that represented the culmination of a ten-year litigation effort by Eddie Koiki Mabo, a resident of Mer, one of the Murray Islands in the Torres Strait.[31] Before Mabo, the common law considered Australian land to have been “practically unoccupied, without settled inhabitants or settled law,” at the time that British settlers arrived.[32] British claim was based on a common law doctrine known as terra nullius, under which a state can claim land “belonging to no one” through occupation.[33] Because of terra nullius, no native title was recognized at Australian common law before Mabo.[34]

Mabo held that the native islanders were “entitled as against the whole world to possession, occupation, use and enjoyment of the island of Mer.”[35] In reaching this conclusion, it rejected the idea that Australia was terra nullius when British colonizers first arrived. Justice Brennan’s decision stated unequivocally that, “The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.”[36] With that declaration, native title was first recognized in Australian common law with a validity rooted not in the sovereignty of the British crown, but in indigenous peoples’ continuous observance of “traditional laws and customs.”[37]

The island which was the subject of the Mabo litigation was a miniscule point of land less than two square miles in size, but the acknowledgement of native title in Mabo sparked an intense backlash based on the fear that indigenous claims would displace Australians who were descended from colonizers.[38] The Mabo decision clearly stated that the government could extinguish native title by acting with the “clear and plain intention to do so,” but people nonetheless feared the loss of their land.[39] Mabo also prompted a response from the legislature, which recognized the need to come to some sort of equitable agreement between the land title of non-indigenous Australians and the newly recognized native title of the Aboriginals.[40]

The Native Title Act of 1993 was born out of the contention that followed the Mabo decision.[41] It codified Justice Brennan’s definition of native title based on “traditional laws and customs,” and it established a system by which native title could be applied for and awarded.[42] After Mabo, the standard for showing a valid native title claim rested on a showing of continuous use of land by indigenous people with traditional laws and customs, effectively creating a system where Aboriginals could claim legal title to their land only so long as nobody else was using it.[43] In a small victory for Aboriginal land rights, the High Court’s 1996 decision in Wik Peoples v. Queensland held that the grant of a pastoral lease from the government did not necessarily extinguish a native title claim, provided that the two can co-exist without conflicting.[44] In other words, land could be used to graze livestock under a government lease, without forfeiting the rights of Aboriginals to use that same land. Unfortunately, this was the high point of legal property rights for indigenous people under Australian law. After Wik, a series of cases were decided that effectively removed rights that Mabo and Wik had created from the realm of common law and anchored them instead in the statutory provisions of the Native Title Act.[45]

The problem for indigenous people became apparent when the Native Title Act Amendments of 1998 were passed, a set of revisions which diluted the protections of the original Native Title Act and added a number of additional elements that indigenous Australians must prove in order to claim legal title to their lands.[46] Because the Court had placed the responsibility for supporting Aboriginal land claims on the Native Title Act instead of the common law, the narrowing of the Act’s protections for indigenous land rights essentially restricted Aboriginals to land never touched by the Australian government. Currently, native title rights are recognized on about forty percent of Australia’s land mass.[47] Unfortunately, the amended Native Title Act gives Australian State governments the right to extinguish a native title claim for any matter of “national interest” and flat-out prohibits any native title claim in an urban area.[48] Therefore, much of the native title is over lands in the vast semi-arid center of Australia, which is almost uninhabitable.[49]

IV. Discussion: Comparing Australia and the United States

The United States’ position toward the legal property rights of Native Americans became a settled issue over a century ago, and it has barely changed since. While the United States was one of the first nations to recognize the rights of indigenous people groups to possess the land that they had historically occupied, it has made negligible progress toward fairly acknowledging Native American title since that first achievement back in 1823. The fact that Native American lands are held in trust by the United States means that the government, as trustee, is in charge of deciding what can and cannot be done with the land. Limitations on land use, even if intended to preserve Native American land in its original state, have stifled any possibility of economic growth and condemned Native Americans to living forever in the 17th century. 

The results of this over-regulation are striking. Native American reservations are some of the most poverty-stricken and crime-filled places in the world, despite being surrounded on all sides by the affluence of the United States.[50] As Naomi Schaeffer Riley put it in a 2016 article for The Atlantic, many reservations “resemble nothing so much as small third-world countries in the middle of the wealthiest nation on Earth.”[51] Despite the fact that the Bureau of Indian Affairs receives billions of dollars annually to use in education, support, and development for Native American tribes, economic activity on reservation lands is almost nonexistent.[52]

Australia, in contrast to the United States, is still working through the process of finding a stable arrangement between the land rights of its native inhabitants and the rights of those descended from colonizers. Because Australia is such a young nation, and because it has the example of the United States and other former colonies to learn from, Australia still has the opportunity to fashion an approach of cooperation between natives and newcomers in an area where many nations before it have failed. The precise nature of the native title recognized by Mabo was not well defined, but it seems to fall somewhere in between the limited right of occupancy possessed by Native Americans and the ultimate title held by the government.[53]

The foundation that was laid in Mabo has the potential to support a real and workable framework for giving legal land rights to Aboriginals. The native title recognized in Australia is superior to the reservation system in the United States because it gives more freedom to indigenous residents to use their land as they see fit. Because much of the continent of Australia is unlivable, however, the Australian legislature or the High Court should set a different standard for awarding native title than the current one contained in the Native Title Act. Common law cases such as Mabo and Wik used language of co-existence and harmony, but the statutory scheme laid out by the Native Title Act does not allow native title claims in any urban area. It permits the rejection of native title claims whenever they would conflict with the “national interest.” This means that the small tracts of fertile land near the Australian coast, which are already claimed by non-indigenous Australians, will be off-limits to Aboriginal claimants. Instead, the land to which they will be permitted to hold title will consist almost exclusively of uninhabitable desert. If Australia wants to obtain an equitable result at the end of the process of determining native title claims, it will have to acknowledge certain Aboriginal land rights in areas where the government may already claim the land for pasture, mining, or other purposes. 

Somewhat superficial attempts to improve relationships between indigenous and non-indigenous people have been implemented recently in both countries. In Australia, the 26th of May is “National Sorry Day,” a day meant to acknowledge and commemorate the mistreatment of native peoples.[54] In the United States, a popular trend is to remove references to Native Americans from sports mascots, and thus Washington D.C. is currently home of the “Washington Football Team” instead of the Washington Redskins.[55] Another common way to show respect for Native Americans is to avoid celebrating “Columbus Day” in favor of “Indigenous Peoples Day.” While there is nothing particularly wrong with any of these gestures, none of them will remedy the damage done to native populations by the destruction of their property rights. If Native Americans and Aboriginals are to flourish – or even to escape from abject poverty – they must be able to buy, sell, develop, and utilize the resources around them. They must be permitted to claim some sort of meaningful title to the land on which they live.

V. Conclusion

The unwillingness of both the United States and Australia to give any real property rights to the indigenous people whose land they took has condemned many native tribes in both countries to live in poverty and exclusion. Native Americans live on land held in trust by the United States government, while Aboriginals and Torres Strait Islanders can only claim title to land of such poor quality that nobody else wants it. The only way for these indigenous people to raise their quality of life is by being permitted to reap the rewards of their own labor, own their land, and use it how they see fit. A long tradition of United States property law makes this a remote possibility in the States, but Australia, which is still not fully settled with regard to allocation of title, may yet find a way to share their land with a balance of equity and harmony.


[1] Mary Ann Glendon, Common Law, Encyclopedia Britannica https://www.britannica.com/topic/common-law (last visited Oct. 23, 2020).

[2] Elizabeth Prine Pauls, Native American, Encyclopedia Britannica https://www.britannica.com/topic/Native-American/The-Plains-and-Plateau-culture-areas#ref57833 (last visited Oct. 23, 2020).

[3] Brian Keon-Cohen, Native Title: The Mabo Litigation: A Personal and Procedural Account, 24 Melbourne U. L.R. 893.

[4] For brevity in this article, the term “Aboriginals” will be used broadly to indicate Aboriginal and Torres Strait Islander peoples.

[5] Johnson v. M’Intosh, 21 U.S. 543 (1823).

[6] Id.

[7] Id. at 591.

[8] Mabo v Queensland [No. 2] (1992) 175 CLR 42 (quoting Deane J. Gerhardy v Brown (1985) 159 CLR 70, at p 149)(Austl.); Keon-Cohen, supra note 3 (explaining that the principles laid down by Chief Justice Marshall in Johnson were followed by New Zealand, Canada, the Privy Council on appeal from African States, and the International Court of Justice).

[9] Johnson, 21 U.S. at 592.

[10] Id. at 588.

[11] Id.

[12] Id. at 589.

[13] Abraham Bell and Gideon Parchomovsky, Property Lost in Translation, 80 U. Chi. L. Rev. 515, 524 (2013).

[14] Id. at 525-26.

[15] Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).

[16] Id. at 279.

[17] Id. at 288-89.

[18] Id.

[19] Frequently Asked Questions, U.S. Department of the Interior Bureau of Indian Affairs, https://www.bia.gov/frequently-asked-questions (last visited Oct. 15, 2020).

[20] Id.

[21] Id. (Discussing how during the late nineteenth and early twentieth centuries, many Indian Reservations were broken up by the U.S. government and either allotted to individual Native Americans or sold to white settlers. This process resulted in significant loss of land for Native Americans, and today about ten million acres is held by the heirs of allottees).

[22] Id. (“Congress ended treaty-making with Indian tribes in 1871.  Since then, relations with Indian groups have been formalized and/or codified by Congressional acts, Executive Orders, and Executive Agreements.”).

[23] Naomi Schaeffer Riley, One Way to Help Native Americans: Property Rights, The Atlantic (July 30, 2016) https://www.theatlantic.com/politics/archive/2016/07/native-americans-property-rights/492941/.

[24] Id.

[25] McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).

[26] Id. at 2466.

[27] Keon-Cohen, supra note 3.

[28] Id.

[29] Maureen Tehan, Critique and Comment: A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act, 27 Melbourne U. L.R. 523, 527.

[30] Mabo v Queensland [No. 2] (1992) 175 CLR 1.

[31] Keon-Cohen, supra note 3.

[32] Cooper v. Stuart (1889), 14 App Cas 286, 291 (Lord Watson).

[33] Terra Nullius Law and Legal Definition, USLegal.com https://definitions.uslegal.com/t/terra-nullius/ (last visited Oct. 15, 2020).

[34] Tehan, supra note 29, at 528 (explaining that although native title was not recognized at common law before Mabo, the Aboriginal Land Rights (Northern Territory) Act of 1976 and a handful of state statutes, including the Aboriginal Land Rights Act 1983 in New South Wales and the Aboriginal Lands Act 1970 in Victoria, granted at least nominal title to certain groups of native inhabitants).

[35] Mabo 175 CLR 97.

[36] Id. at 42.

[37] Id. at 64, 66.

[38] Tehan, supra note 29, at 528.

[39] Mabo 175 CLR 75; Tehan, supra note 29, at 528.

[40] Id.

[41] Id. at 543.

[42] Mabo 175 CLR 97; Tehan, supra note 29, at 545-548.

[43] Id. at 563.

[44] Wik Peoples v Queensland (1996) 187 CLR 1.

[45] Tehan, supra note 29, at 557-58 (referring to Western Australia v Ward (2002) 197 ALR 1, and Yorta Yorta v Victoria (2002) 197 ALR 538. Tehan explains that Ward found that Mabo and Wik were only relevant to the extent that they shed light on the Native Title Act and Yorta Yorta emphasized the continuous use requirement under the Act).

[46] Id. at 555, 563.

[47] Land and Housing, National Indigenous Australians Agency, https://www.niaa.gov.au/indigenous-affairs/land-and-housing (last visited Oct. 15, 2020).

[48] Transcript of Prime Minister John Howard’s Wik 10-Point Plan, The Department of the Prime Minister and Cabinet Wik Task Force (May 1, 1997) https://pmtranscripts.pmc.gov.au/sites/default/files/original/00010323.pdf.

[49] Review of the Native Title Act 1993 (DP 82), Progress to Date, Australian Law Reform Commission (Oct. 21, 2014) https://www.alrc.gov.au/publication/review-of-the-native-title-act-1993-dp-82/3-context-for-reform-proposals/progress-to-date/.

[50] Naomi Schaeffer Riley, One Way to Help Native Americans: Property Rights, The Atlantic (July 30, 2016) https://www.theatlantic.com/politics/archive/2016/07/native-americans-property-rights/492941/.

[51] Id.  

[52] Id.

[53] For example, Mabo recognized that native title could not be extinguished without compensation, Mabo 175 CLR 59, unlike Native American title as seen in Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).

[54] Jennifer Latson, This is Why Australia has ‘National Sorry Day’, Time Magazine (May 25, 2015) https://time.com/3890518/national-sorry-day/.

[55] Jeremy Bergman, Washington will go by ‘Washington Football Team’ until further notice, NFL.com (July 23, 2020) https://www.nfl.com/news/washington-football-team-nfl-name-change.

The Impact of COVID-19 on Jury Trials in Hamilton County

Photo by weiss_paarz_photos on Flickr

Kassidy Michel, Associate Member, University of Cincinnati Law Review

I. Introduction

The COVID-19 Pandemic has wreaked havoc across the world. Not only has the Pandemic created a public health crisis, killing 212,485 people in the United States alone, but it has also been the reason for countless other economic and personal crises. [1] People have lost their jobs[2], businesses are suffering, some businesses have closed permanently[3], there is an upsurge in domestic violence[4], the rate of food insecurity has doubled in houses with children because schools are closed[5], mental health has disproportionately worsened[6], and personal lives have been devastated. In the legal profession, COVID-19 has not only suspended jury trials, but has also changed the way jury trials are conducted. This article will specifically discuss the impact that COVID-19 has had on jury trials in Hamilton County, Ohio State and Federal Courts. Part II gives an overview of jury trials in general and in Hamilton County. Part III discusses jury trials starting again in federal court, with information from a personal interview with Magistrate Judge Stephanie Bowman from the United States District Court for the Southern District of Ohio. Part IV discusses jury trials starting again in state court, with information from a phone interview with Judge Charles Kubicki, Jr., the Presiding and Administrative Judge for the Hamilton County Common Pleas Court. Part V and VI discuss the importance of jury trials and what further steps the courts could take to ensure optimal safety and continuation of jury trials during the pandemic.

II. Jury Trials in Hamilton County

The right to a jury trial is a fundamental right listed in the United States Constitution in Article III and expanded upon in the Sixth and Seventh Amendments.[7] The Sixth Amendment provides that all criminal trials should enjoy the right to a speedy and public trial in front of an impartial jury if they choose.[8] The Seventh Amendment expands that same right of an impartial jury trial in civil lawsuits to all citizens.[9] Although a majority of civil cases settle before going to trial and a majority of criminal cases take a plea deal before going to trial, jury trials are an extraordinarily important part of our legal system that are necessary to allow every defendant their right to justice.[10]

When COVID-19 first made headway in Hamilton County, Judge Charles Kubicki Jr. of the Hamilton County Common Pleas Court and Judge Heather Russell of the Hamilton County Municipal Court issued an order on March 16, 2020 suspending jury trials for 30 days for civil and criminal court cases, after a similar imposition was enforced on March 13, 2020 in federal courts in Cincinnati.[11] These actions sparked significant backlash. Suspending jury trials takes away someone’s constitutional right to a speedy and fair trial and causes great backlogs in the system – not to mention that people’s lives or freedom are at stake in many criminal cases. Due to the sensitive nature of suspending jury trials, Ohio Attorney General Dave Yost wrote an opinion discussing the Constitutionality of allowing courts to suspend jury trials to prevent the spread of the pandemic. Attorney General Dave Yost concluded that suspending jury trials is consistent with state and federal speedy-trial obligations.[12]

The continued delays of trial by jury have caused hundreds of cases on top of dozens of jury trials to be delayed in the Hamilton County Court Systems.[13] The last time the courts across the country halted operations was during the 1918 Spanish flu epidemic, more than one hundred years ago.[14] Although times are very different than they were during the Spanish flu crises, in terms of technology and progressive strides in the court systems, the COVID-19 pandemic has brought on many unprecedented challenges that the courts have had to work through to try and get the systems back up and running to full capacity.

III. Federal Court Jury Trials[15]

The federal courts in Hamilton County have yet to resume jury trials since they shut down operations on March 13. Major cases have been put on hold, including the opioid trials, due to the novel COVID-19 pandemic.[16] After the courts shut down in March, Chief Judge Algenon Marbley created a pandemic team to assess the fluid situation of the pandemic in relation to the courts. The pandemic team meets weekly and reviews the trends and matrices in order to make recommendations to the Judges on whether or not the court should resume trials. The Judges are the ultimate decision makers.

Jury trials have not yet resumed in federal courts, but the courts have been working to create a safe, socially distanced environment for jury trials to take place. In August, the court ordered plexiglass to be installed in two court rooms. The plexiglass surrounds each jury, the judge, the witness, the court recorder, council, and the podium where council stands to present. Not only do the court rooms have plexiglass, but typical social distance guidelines are in place at the courthouse, including mandatory masks.

While civil jury trials are discontinued until after November 1, 2020, criminal jury trials were set to resume on October 1, 2020.[17] Although criminal jury trials did not immediately resume on October 1, the court held a mock jury trial walk through on Thursday, October 16, 2020 in order to ensure the courtrooms were equipped with the necessary equipment to create the safest environment possible for all people involved in a jury trial. Although the mock jury trial went well, there has been another spike in COVID-19, so jury trials will probably not resume in November or December.[18] Once jury trials resume, jurors will have an automatic excuse that will be granted in case they feel uncomfortable due to COVID-19. While there is a concern that potential jurors will misuse that excuse, safety is at the utmost concern and it is imperative that people feel safe coming into the courthouse.

Cases typically settle or there is a plea deal. The federal court has continued proceedings on video conferencing, except for sentencing, unless the defendant consents to have their sentencing done over video because statute requires sentencings to be done in person. Since proceedings continued on video, the court has not seen as big of a backlog in cases as expected. According to Judge Bowman, the backlog will probably occur once the jury trials begin again.[19] There are only two courtrooms equipped for social distancing, so the major problem will arise when seven judges are trying to schedule their trials in two courtrooms. Judge Bowman also believes that COVID-19 will have an impact on jury trials, and trials in general, in the future.[20] COVID-19 has shown lawyers that it is possible to move work online, specifically depositions. If more depositions occur on video calls, there will not be as much of a need to travel as often and the cost of litigation may decrease, freeing up funds to go to trial, according to Judge Bowman.[21]

IV. State Court Jury Trials[22]

From the first suspension of jury trials in Hamilton County on March 16, 2020, there were several attempts to start jury trials back up, but they were ultimately suspended again. Jury trials were first set to begin again on Monday, July 20, 2020, with many precautions in place, such as mandatory face masks and plexiglass separators, but the court decided to suspend jury trials again on July 15, 2020.[23] According to Judge Kubicki, the reason behind suspending jury trials further, but allowing other court operations to continue, was because jury trials require many people in the same room, including jurors, staff, attorneys, and witnesses.[24] This reasoning was based off of Ohio Governor Mike DeWine’s and the Health Director’s assessment of Hamilton County moving from the red zone to the purple zone for COVID-19.[25]

After more than four months without jury trials, they began again on August 3, 2020, with health at the forefront of importance.[26] The precautions Hamilton County were taking allowed the court to proceed with trials in as normal a fashion as we now know with socially distanced guidelines and mandatory masks. The court took three visiting judge rooms, which are larger than other courtrooms in the building, and built out plexiglass in all necessary spots. The juror box has plexiglass between each juror in the back row, and the front row was moved in front of the rail of the jury box with plexiglass between each juror seat. Each of the rooms has a special place for alternates and other jurors to sit. There is also plexiglass around the court recorder, the judge, and where attorneys ask questions. There is not plexiglass around the witness stand, however, because it is on the other side of the room and is spaced far enough away to not require plexiglass according to the health director.

Before the pandemic, the court used to bring in hundreds of jurors and choose among them randomly through a software. Now, the software randomly chooses jurors to bring in only on the day of the trial.

Because jury trials were suspended for so long, there is a backlog of cases. Statistically, most criminal cases take a plea bargain and most civil cases settle. However, when the option of a jury trial is taken away, parties are less likely to resolve their disputes even if they would have settled or taken a plea if not for COVID impacts, according to Judge Kubicki.[27] In order to organize the cases going to trial, the court came up with a points system for priority of cases. Basically, particularly in criminal cases, the person who has been in prison the longest with the most serious charges has priority of going first.  

Defense attorneys have had some of the most concerns about starting jury trials again, according to Judge Kubicki.[28] Defense attorneys represent clients, many of whom are in jail, where there have been numerous cases of COVID-19. While the defense attorneys strive to zealously represent their clients, many are concerned with exposure. Although there are concerns about starting jury trials again, Judge Kubicki said jury trials are going well with the necessary health precautions in place.[29] The goal of the court is to minister justice while taking into account the health and safety of all people involved and limit exposure of COVID-19. It has been made clear to all perspective jurors and parties that health is the highest priority. Because of the success Hamilton County has had in beginning jury trials during the pandemic, many courts have called Hamilton County for tips, including the federal courts in Ohio and California courts.

Unfortunately, due to another spike in COVID-19, Hamilton County courts once again suspended jury trials on Friday, October 23, 2020.[30]

V. Necessity of Jury Trials

Courts are a fundamental necessity in our society. Although the economy and society have suffered greatly due to the impacts from COVID-19, closing courts is consequential in the greatest sense. There are available alternatives to jury trials, such as bench trials, mediations, arbitrations, and plea deals. However, the Constitution guarantees every person due process and a fair trial by jury if they so choose. People prefer to bring some cases to trial in hopes of a more favorable outcome. Without the option to have a jury trial, many people may be less motivated to resolve the case because their ability to seek justice has been taken away from them.[31]

As almost every other aspect of our lives has changed due to COVID-19, if jury trials begin anytime soon, those, too, will have a different look to them. Hamilton County began jury trials in August in three separate rooms that are usually used for visiting judges and will be sanitized after each case.[32] Many courts will have the same makeup for jury trials as the courts in Hamilton County. Face masks and temperature checks will be mandatory each day of the trial to ensure everyone is healthy and without a fever. Although face masks will be required for everyone, when witnesses are testifying, they will not wear a mask.[33] There will probably be a “maze of plexiglass” between everyone in the room, including between the judge and the room, between opposing counsel, between each juror in the juror box, between the witness stand and the room, etc.[34] There will also be limited spectators allowed at the trial.[35]

The process for choosing potential jurors for jury trials will also probably look different. Those individuals who are in the high-risk category for contracting COVID-19, whether that means they are older or have a pre-existing condition, will probably be able to defer participation in the jury trial.[36] Typically jurors are packed into the court room in a group and asked questions by the defense and prosecution. However, in a COVID-19 jury trial, the potential jury pool will probably have to be broken into smaller groups, socially distanced, and asked questions that way.[37] Jurors may even be selected during virtual questioning, or there will be more questioning done in writing beforehand.

VI. Conclusion

Although Hamilton County has started jury trials again, there is always a possibility of another outbreak in the county. Could the courts start to utilize the growing technology that many businesses and classrooms are utilizing to continue their businesses and education? The biggest issue with using platforms such as Zoom, WebEx, Microsoft Teams, or Skype for jury trials are privacy concerns and logistics.[38] What about hackers? Would jurors be able to join a juror room and be confined to it? If jurors could be confined to a juror room, would that room be confidential and private, like the jurors’ experience in a normal in-person jury trial? What about jurors’ at-home situations? There are many concerns with utilizing video technology for such an important part of the judicial system that requires many moving pieces and a large number of participants. For now, plexiglass may be enough to allow courts to conduct jury trials again. However, with numbers rising again in Hamilton County, and across the entire state of Ohio, courts will have a difficult decision in terms of keeping courts open.[39]


[1] See COVID-19 Dashboard by the Center for Systems Science and Engineering at Johns Hopkins University, https://coronavirus.jhu.edu/map.html (last visited Oct. 8, 2020).

[2] See Eric Morath, How Many U.S. Workers Have Lost Jobs During Coronavirus Pandemic? There Are Several Ways to Count, THE WALL STREET JOURNAL (June 3, 2020, 5:30 AM),https://www.wsj.com/articles/how-many-u-s-workers-have-lost-jobs-during-coronavirus-pandemic-there-are-several-ways-to-count-11591176601.

[3] See Lauren Bauer, Kristen E. Broady, Wendy Edelberg, and Jimmy O’Donnell, Ten Facts About COVID-19 and the U.S. Economy, BROOKINGS (Sept. 17, 2020),https://www.brookings.edu/research/ten-facts-about-covid-19-and-the-u-s-economy/.

[4] See Amanda Taub, A New Covid-19 Crisis: Domestic Abuse Rises Worldwide, THE NEW YORK TIMES (Apr. 14, 2020),https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html.

[5] See supra note 3.

[6] See Mental Health, Substance Use, and Suicidal Ideation During the COVID-19 Pandemic – United States, June 24 – 30, 2020, CDC (Aug. 14, 2020),https://www.cdc.gov/mmwr/volumes/69/wr/mm6932a1.htm.

[7] U.S. CONST. art. III; See also U.S. CONST. amend. VI; See also U.S. CONST. amend. VII.

[8] U.S. CONST. amend. VI.

[9] U.S. CONST. amend. VII.

[10] See Jonathan D. Glater, Study Finds Settling Is Better Than Going to Trial, THE NEW YORK TIMES (Aug. 7, 2008),https://www.nytimes.com/2008/08/08/business/08law.html; See also Innocence Staff, Report: Guilty Pleas on the Rise, Criminal Trials on the Decline, INNOCENCE PROJECT (Aug. 7, 2018), https://www.innocenceproject.org/guilty-pleas-on-the-rise-criminal-trials-on-the-decline/.

[11] Barrett J. Brunsman and Chris Wetterich, Hamilton County Suspends Court Cases Because of Coronavirus, CINCINNATI BUSINESS COURIER (Mar. 14, 2020, 2:36 PM),https://www.bizjournals.com/cincinnati/news/2020/03/14/hamilton-county-suspends-court-cases-because-of.html.

[12] Opinion from Dave Yost, Att’y Gen., Ohio,(Mar. 18, 2020), https://sc.ohio.gov/coronavirus/resources/2020-002OHAG.pdf.

[13] Andrea Medina, Socially Distanced Jury Trials to Resume Monday in Hamilton County, FOX19 NOW (July 20, 2020, 10:59 PM), https://www.fox19.com/2020/07/30/socially-distanced-jury-trials-resume-monday-hamilton-county/.

[14] Melissa Chan, ‘It Will Have Effects for Months and Years.’ From Jury Duty to Trials, Coronavirus Is Wreaking Havoc on Courts, TIME (Mar. 16, 2020, 4:44 PM),https://time.com/5803037/coronavirus-courts-jury-duty/.

[15] Telephone Interview with Stephanie K. Bowman, Magistrate Judge, United States District Court for the Southern District of Ohio (Oct. 13, 2020).

[16] Amanda Bronstad, Opioid Trials in W.Va., Ohio Placed on Hold Due to COVID-19 Pandemic, LAW.COM (Oct. 9, 2020, 4:15 PM),https://www.law.com/2020/10/09/opioid-trials-in-w-va-ohio-placed-on-hold-due-to-covid-19-pandemic/.

[17] Further Order Regarding Court Operations Under The Ongoing Exigent Circumstances Created By Covid-19, General Order 20-27 (Sept. 29, 2020), https://www.ohsd.uscourts.gov/sites/ohsd/files//General%20Order%2020-27.pdf.

[18] See Bowman, supra note 15.

[19] See Bowman, supra note 15.

[20] Id.

[21] Id.

[22] Telephone Interview with Charles J. Kubicki Jr., Common Pleas Judge, Hamilton County, Ohio Courts (Oct. 13, 2020).

[23] Angenette Levy, Hamilton County Suspends Jury Trials; 1,021 COVID-19 Cases Added Over the Last Week, LOCAL12 (July 15, 2020),https://local12.com/news/local/hamilton-county-suspends-jury-trials-1021-covid-19-cases-added-over-the-last-week-cincinnati; See also Kim Schupp, Jury Trials Not Resuming in Hamilton County Due to COVID-19 Spike, Judge Says, FOX19 NOW (July 15, 2020, 6:46 PM),https://www.fox19.com/2020/07/15/watch-live-hamilton-co-discuss-court-operations-jury-trials/.

[24] See Kevin Grasha, ‘It Just Can’t Happen Safely.’ No Jury Trials in Hamilton County After COVID-19 Surge, CINCINNATI ENQUIRER (July 15, 2020),https://www.cincinnati.com/story/news/2020/07/15/no-jury-trials-hamilton-county-after-covid-19-surge/5442115002/.

[25] WCPO Staff, Ohio’s New COVID-19 Map, WCPO CINCINNATI (July 23, 2020, 4:21 PM), https://www.wcpo.com/news/coronavirus/live-dewine-updates-ohios-covid-19-heat-map.

[26] See Kevin Grasha, Jury Trials to Resume in Hamilton County Beginning Monday, CINCINNATI ENQUIRER (July 29, 2020, 3:59 PM),https://www.cincinnati.com/story/news/2020/07/29/jury-trials-resume-hamilton-county-beginning-monday/5538434002/.

[27] See Bowman, supra note 15.

[28] Id.

[29] Id.

[30] Kevin Grasha, Jury Trials Suspended Once Again in Hamilton County Because of COVID-19, CINCINNATI ENQUIRER (Oct. 3, 2020, 4:10 PM), https://www.cincinnati.com/story/news/2020/10/23/coronavirus-jury-trials-suspended-again-hamilton-county/6009346002/.

[31] Id.

[32] Kevin Grasha, Here’s What Jury Trials Look Like in Hamilton County Amid the Coronavirus Pandemic, CINCINNATI ENQUIRER (Aug. 31, 2020, 9:51 AM),https://www.cincinnati.com/story/news/2020/08/31/heres-what-jury-trials-look-like-hamilton-county-amid-covid-19/5655337002/.

[33] Id.

[34] See Katie Mettler, Sanitizer, Face Shields and a Plexiglass Maze: What Jury Trials Look Like in a Pandemic, THE WASHINGTON POST (Sept. 18, 2020, 11:40 AM),https://www.washingtonpost.com/local/legal-issues/sanitizer-face-shields-and-a-plexiglass-maze-what-jury-trials-look-like-in-a-pandemic/2020/09/18/0ed75970-f8fc-11ea-89e3-4b9efa36dc64_story.html.

[35] See supra note 23.

[36] See supra note 25.

[37] Id.

[38] See Justin Sarno and Jayme Long, Social Distancing and Right to Jury Trial Must be Reconciled, LAW360 (Apr. 12, 2020, 8:02 PM),https://www.law360.com/articles/1261476/social-distancing-and-right-to-jury-trial-must-be-reconciled.

[39] See Ohio Reports Highest Single-Day Increase of COVID-19 Cases: 2,366 New Cases, 66 Deaths, CINCINNATI ENQUIRER (Oct. 21, 2020, 2:40 PM),https://www.cincinnati.com/story/news/2020/10/21/coronavirus-ohio-reports-2366-new-cases-66-deaths-wednesday/6004046002/.

Should Physicians be Exempt from Covenants Not to Compete?

Photo by Online Marketing on Unsplash

Sarah Simon, Associate Member, University of Cincinnati Law Review

I. Introduction

By 2033, the United States will have a shortage of between 54,100 and 139,000 physicians.[1] There are many ways to deal with this problem, but continuing to subject doctors to covenants not to compete is not the answer. Covenants not to compete (“CNC”) restrict where an employee can work after leaving their employer to protect the employer’s business. Hospitals and practice groups have doctors sign a CNC to prevent them from practicing medicine in the vicinity where the hospital or practice group operates.

In states that allow CNCs against doctors, courts will enforce these covenants if they are “reasonable” and protect an employer’s “legitimate interest.” [2] To determine reasonableness, courts look at several factors.[3] One important inquiry in analyzing CNCs against physicians is: Does the agreement violate public policy? Part II will discuss a case where the court refused to enforce a practice group’s CNC for violating public policy. Part III will discuss the shift across states to ban CNCs against doctors. Part IV argues that CNCs against doctors should not be enforced for several reasons, including the future shortage of doctors. Part V concludes by recommending that Congress or the Supreme Court prohibit CNCs.

II. CNC Invalid for Violating Public Policy

In Valley Medical Specialists v. Farber, a medical practice sued to enforce a former employee’s CNC after he started practicing in an area prohibited by the CNC.[4] The CNC prevented the pulmonologist from practicing within a five mile radius of any of the employer’s offices for three years—a total of 235 square miles.[5] The Arizona Supreme Court held that the agreement was unenforceable because it was contrary to public policy and overbroad for the practice’s interest.[6]

First, the court emphasized the American Medical Association’s (“AMA”) aversion to CNCs.[7] The AMA disapproves of CNCs because they hinder a patient’s right to choose their doctor and prevent “free competition among physicians [which] is a prerequisite of optimal care and ethical practice.”[8] The court noted that the American Bar Association forbids CNCs for lawyers because they restrict the client’s right to choose their representation and limit the lawyer’s “professional autonomy.” CNCs for physicians raise similar concerns.[9] Furthermore, the doctor-patient relationship is more personal than the typical employee-client relationship in CNCs, so it merits special protection.[10]

Second, the court asked if the practice’s interest in its patients justified the public policy concerns of the CNC.[11] Since the doctor learned his skills in medical school and not from the employer, the court held that the employer’s interest did not outweigh the public’s interest in the doctor-patient relationship.[12] Therefore, the court declined to enforce the CNC against the doctor.[13]

III. CNCs Across States

There is an increasing shift against CNCs for physicians. Several states fully ban CNCs against doctors: California, Delaware, Massachusetts, New Hampshire, North Dakota, Oklahoma and Rhode Island.[14] Other states construe antitrust laws as forbidding CNCs for physicians.[15] Lastly, state supreme courts can choose to ban CNCs for doctors, as the Tennessee Supreme Court did in Murfreesboro Medical Clinic, P.A. v. David Udom.[16]

IV. Discussion

The AMA’s discouragement of CNCs for infringing on a patient’s right to choose their doctor should be sufficient to ban CNCs for doctors, but there are several other reasons that are becoming increasingly relevant.[17] First, the anticipated shortage of doctors makes CNCs unnecessary. If there are not enough doctors to treat patients, there is no need to restrict where a doctor can practice. The former hospital or practice group’s interest in protecting their client base does not apply if there is a surplus of clients. Additionally, CNCs could make the shortage worse by limiting where a doctor can practice.

A counter point is that the shortages of doctors may not be in the same areas that the hospitals are located, so CNCs that force doctors to practice in another area could help if there is a shortage of doctors in that area. However, this neglects the doctor’s current patients who would have to drive further to their doctor or find a closer doctor.

Second, patients are already confined in their choice of care by insurance companies. CNCs add another unnecessary layer of restriction. Insurance companies have in-network and out-of-network providers. In-network providers contract with the insurance company to provide patients lower rates and can only charge the agreed upon price.[18] Out-of-network providers typically cost more and the patient has to pay for what their plan does not cover.[19] Most patients will not visit out-of-network providers because of the cost. If a patient’s primary care doctor has to leave the county, the patient has to find a new provider and the provider must be approved by their insurance company. By forbidding the doctor from practicing in a certain area, CNCs add another unnecessary roadblock.

Lastly, the prevalence of telehealth makes CNCs less necessary. Telehealth allows patients to see their doctor remotely using a phone or computer. COVID-19 increased the need for virtual visits. If doctors are seeing patients remotely, the employer does not need to restrict where the doctor can practice to protect its client base.

V. Conclusion

The shortage of doctors in the future, along with insurance companies that already restrict a patient’s choice of provider, and the increase of telehealth make CNCs impossible to justify. Additionally, the national shift away from CNCs for doctors suggests that more states agree: whether or not a doctor is subject to a CNC should not depend on what state he practices in. These reasons, along with the AMA’s disapproval of CNCs, justify a Congressional or Supreme Court ban on CNCs for doctors.


[1] Patrick Boyle, U.S. Physician Shortage Growing, Association of American Medical Colleges (June 26, 2020) https://www.aamc.org/news-insights/us-physician-shortage-growing.

[2] Valley Med. Specialists v. Farber, 194 Ariz. 363, 367 (1999).

[3] (1) The covenant must be reasonably necessary to protect the employer; (2) the time limit of the covenant must be reasonable; (3) the geographic scope of the covenant must be reasonable; (4) the covenant must not be unreasonable to the employee; and (5) the covenant must not be unreasonable to interest of the public. Wis. Stat. Ann. § 103.465 (West).

[4] Valley Med. Specialists, 194 Ariz. at 366.

[5] Id. at 365-366.

[6] Id. at 370.

[7] Id. at 368.

[8] Id.

[9] Id. at 369.

[10] Id.

[11] Id. at 370.

[12] Id.

[13] Id. at 372.

[14] Jesse M. Ehrenfeld, Restrictive Covenants of Large Health Care Systems, Report of the Board of Trustees(May 1, 2019) https://www.ama-assn.org/system/files/2019-09/i19-bot05.pdf.

[15] Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 681 (Tenn. 2005). See See Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968); Bosley Med. Group v. Abramson, 161 Cal.App.3d 284, 207 Cal.Rptr. 477 (1984); Bergh v. Stephens, 175 So.2d 787 (Fla.Dist.Ct.App.1965); Gauthier v. Magee, 141 So.2d 837 (La.Ct.App.1962); W. Montana Clinic v. Jacobson, 169 Mont. 44, 544 P.2d 807 (1976); Spectrum Emergency Care, Inc. v. St. Joseph’s Hosp. & Health Ctr., 479 N.W.2d 848 (N.D.1992).

[16] Id. at 683.

[17] Valley Med. Specialists, 194 Ariz. at 368.

[18] Cigna, In-Network vs. Out-of-Network Providers, Cigna https://www.cigna.com/individuals-families/understanding-insurance/in-network-vs-out-of-network (2020).

[19] Id.

The Most Sacred of All Property

Photo by Robin Spielmann on Unsplash

Jacob Hoback, Associate Member, University of Cincinnati Law Review

I. Introduction

The First Amendment of the U.S. Constitution prohibits the government from “respecting an establishment of religion, or prohibiting the free exercise thereof.”[1] Under modern free exercise jurisprudence, a law that substantially burdens a religious practice is constitutional if the law is neutral and generally applicable.[2] Questions of neutrality and general applicability extend beyond the face of the law.[3] For example, suppose a state legislature passed a law prohibiting drinking alcohol on Sundays to combat a disproportionate amount of drunk driving accidents. While this would create a substantial burden for religious communities that use wine in their services, the law would not be a violation of the free exercise clause, since the law is neutral and generally applicable. Now, suppose that a section of the statute allowed the governor to have discretion to exempt organizations from following the order, and the governor extended the exemptions to various fine dining establishments but not to religious observers. Would the law still be constitutional?  

This question has been answered differently among circuit courts. Three circuit courts have concluded that it would likely be unconstitutional, and two circuit courts have concluded that it would likely be constitutional. Under the majority approach, a law is unconstitutional if “the law appears to be neutral and generally applicable on its face, but in practice is riddled with exemptions.”[4] In the hypothetical case described above, the law does not patently target religion, but the government has extended exemptions to other secular organizations. Therefore, under the majority approach, the law would be unconstitutional.

 In contrast, under the minority approach, a law is unconstitutional only if the plaintiff can prove that the government would allow the same conduct by someone who “held different religious views.”[5] In other words, the law would only be unconstitutional if it allowed Anglicans to use wine in their services but not Catholics. In the hypothetical, the law did not appear to favor one religious group over another religious group engaging in the same conduct. Therefore, the law would be constitutional under the minority approach.

This upcoming term, the Supreme Court has an opportunity to resolve the split in Fulton v. City of Philadelphia. This article will address why the Court should adopt the majority approach. Section II will explain the basic framework of free exercise jurisprudence; Section III will explain the facts and lower court rulings of Fulton; and Section IV will argue why the Court should adopt the majority approach.

II. Background

Employment Division v. Smith held that religious observers are not exempt from laws that would compel them to forsake their religion if the laws are neutral and generally applicable.[6] However, some laws are neutral and generally applicable on their face but, in practice, exist only to burden religious groups, particularly laws with exemptions that do not extend to religious observers. The law challenged in Smith was neutral and generally applicable on its face and in practice. Consequently, this raises an important question: When a law is neutral and generally applicable on its face but not in practice, what are the requirements for a free exercise plaintiff to prevail under Smith?

A. Employment Division v. Smith

The most fundamental principle of free exercise jurisprudence is that laws that are neutral and generally applicable are constitutional. In Smith, two Native American Church members were fired from their jobs for ingesting peyote in a religious setting.[7] After their termination, they sought unemployment benefits but were ultimately denied because they were discharged from their jobs for work misconduct, having violated state law in consuming the drug.[8]

Writing for a 7-2 majority, Justice Scalia held that the denial of unemployment was constitutional since the law was neutral and generally applicable.[9] The Court reasoned that the government would be violating the free exercise clause if it banned acts or abstentions tailored to a particular religion, but since the law was neutral and generally applicable, it did not violate the plaintiff’s free exercise of religion.[10]

Justice Black dissented, fearing the result of the new rule in Smith for religious minorities who would be subject to laws governed by the majority.[11] He reasoned that the Native American Church members had sincere beliefs that the peyote they consumed would embody their deity.[12] Moreover, he explained that if the state could constitutionally prosecute members of a marginalized faith under Smith for their worship, then the religious minorities might be “forced to migrate to some other and more tolerant religion.”[13]

B. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah

The inquiry of neutrality and general applicability goes beyond the law on its face.[14] In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the government passed a law prohibiting animal cruelty.[15] Ostensibly a neutral and generally applicable law, legislative history proved that the law targeted the religious practice of the Santerians, a religion from western Africa.[16]  In Hialeah, Florida, a congregation of Santerians opened a church.[17] The president of the church announced that the goal of the church was, among other things, to practice the Santerian faith, including its practice of animal sacrifice.[18] The announcement caused great concern among the citizens of Hialeah.[19] Consequently, members of the community gathered and sought to prohibit the Santerians from practicing animal sacrifice in their city.[20] Accordingly, the city council passed an ordinance making it unlawful for any person to kill any animal within the city.[21] However, the ordinance also included an exemption for the killing, processing, and selling of animals for food.[22]

When the church sued to overturn the law, the city argued that the law was not a free exercise violation since the law was facially neutral and generally applicable.[23] The Court rejected this argument, explaining that the free exercise clause prohibits “covert suppression of particular religious beliefs.”[24] Given the timing of the ordinance, the comments made during the city council meetings, the comments made by other government officials, and the exemptions for secular conduct, the Court found that the ordinance was not neutral and generally applicable in practice.[25] Therefore, the Court held that the ordinance was unconstitutional.[26]

C. The Circuit Split

Circuit courts differ on what a free exercise plaintiff must prove to prevail under Smith.  The Sixth, Tenth, and Eleventh Circuits hold that exempting secular conduct but not religious conduct is unconstitutional.[27] The Third and Ninth Circuits take the test one step further; they require a plaintiff to prove that the government would allow the same behavior by someone with different religious beliefs.[28]

1. The Majority Approach

Under the majority approach, a free exercise plaintiff can prevail simply by showing that the government permitted secular exemptions but not religious ones.[29] For example, the Sixth Circuit found that a school policy prohibiting students from refusing to counsel clients because of religious objections but not certain secular ones was unconstitutional.[30] There, the plaintiff, whose faith prevented her from endorsing same-sex relationships and other heterosexual conduct, was in a graduate-level counseling-degree program.[31] In her last year of study, she took an experiential learning course in which the school designated her to counsel a homosexual client.[32] The plaintiff asked if the university could refer her to a different client, and in response, the university expelled her from the program for violation of the American Counseling Association’s ethics by discriminating on the basis of sexual orientation.[33] The code of ethics, however, allowed “values-based referrals.” [34] For example, a counselor could refer a terminally ill client due to the counselor’s “personal” and “moral” views if the client wanted to explore end-of-life options.[35]

Relying on Lukumi, the court held that although the policy was neutral and generally applicable on its face, it was “ridden” with exceptions, which is “the anthesis of a neutral and generally appliable policy.”[36] Therefore, the court held that the policy was unconstitutional under the free exercise clause.[37]

2. The Minority Approach

Under the minority approach, a free exercise plaintiff must be able to prove that the government would have treated a free exercise plaintiff less favorably than a religious observer of a different faith.[38] The Third Circuit in Wiesman found unconstitutional a Washington policy requiring licensed pharmacies to deliver contraception that extended exemptions for secular reasons but not religious ones.[39] There, the plaintiffs were pharmacists who refused to deliver Plan B for religious reasons.[40] The Washington Pharmacy Quality Assurance Commission prohibited licensed pharmacies to deny delivery of prescription medications for certain business reasons, such as fraud or inability to pay.[41]  Pharmacists who objected to certain medications for religious reasons could also deny delivery if another pharmacist could deliver the medication.[42] However, if a religious pharmacist was the only one working, the pharmacist had to deliver all prescription medications, including those the pharmacist had a religious objection to.[43] On the other hand, the law had a referral policy allowing for individualized referrals.[44] The referrals were available to support the secular interests of the patients and pharmacies, but such referrals were not available for pharmacists with religious objections.[45] Nevertheless, the Third Circuit reasoned that since the rule and its secular exemptions applied to everyone, the law was neutral and generally applicable, thus constitutional under Smith.[46]

III. Fulton v. City of Philadelphia

On February 4, 2020, the Supreme Court agreed to hear Fulton v. City of Philadelphia, Pennsylvania.[47] At issue is whether laws that extend individualized exemptions for secular justifications, but not religious ones, are constitutional.[48]

A. The Facts

Catholic Social Services (“CSS”) provides foster care services in Philadelphia (“the City”).[49] CSS views providing homes for underprivileged children as a core value of Christianity.[50] The City’s foster care system helps place individual foster families with children.[51] For more than 100 years, it has had a contractual relationship with CSS, renewed on an annual basis, whereby the City compensated CSS for its services.[52] The contract included a provision (“Provision 3.21”) that prohibited CSS and other agencies from discriminating on the basis of race, color, religion, natural origin, or sexual orientation.[53] However, the policy allowed for individualized exemptions from Provision 3.21 for secular reasons such as “fit” with foster parents.[54] CSS claimed that its religious views prohibit certifying a same-sex couple as foster parents.[55] While the statute allowed individualized exemptions for secular reasons, the City did not allow religious exemptions.[56] In March 2018, the City Council passed a resolution to investigate potential discriminatory practices among the foster agencies.[57] Thereupon, the City refused to renew its contract with CSS, since CSS refused to violate its religious principles.[58]

B. The District Court’s Ruling

When CSS challenged the policy in federal court, the district court held that the policy was constitutional.[59] CSS argued that the City allowed exemptions for secular reasons, such as proximity, behavioral needs, and other areas.[60] However, the court ruled that the City effectively did not make any organization exempt from the policy.[61] The court explained that the City allowed secular exemptions, but it did not condone using the exemptions as a means of refusing to work with couples because the parents were members of a protected class under the policy, the type of conduct in which CSS is engaged.[62] Therefore, since the policy was not a means of obtaining an exemption to refuse a couple, the district court held that the referral policy was not unconstitutional.[63]

C. The Third Circuit’s Ruling

On appeal, the Third Circuit asked a different question: “Did [the City] treat CSS worse than it would have treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs?”[64] The court reasoned that to prevail under Smith, CSS must show that the government treated it more harshly than someone who engaged in the same conduct but held different religious views.[65] To prevail under this test, CSS would have had to prove that the City would have treated a foster agency with different religious beliefs differently than CSS.[66] Nevertheless, the City was free to create exemptions for individuals with different secular preferences.[67] Therefore, the Third Circuit held that the City did not violate CSS’s free exercise of religion.[68] The petitioners appealed, and the Supreme Court granted certiorari to decide the case in the Court’s 2020 term..[69]

IV. Discussion

Two remarkably different schools of thought exist in understanding what Smith established. Under Smith, even when a law is neutral and generally applicable, individualized exemptions render the law unconstitutional.[70] The question is, then, what kind of exemptions are prohibited? The minority approach holds that the only exemptions that are prohibited are those that exist for some religious groups but not for others. The majority approach, however, prohibits the government from extending any exemption that is also not extended to religious observers.

The minority approach strays far away from Smith and its progeny. If the Supreme Court adopted the minority approach, it would create an even greater burden for religious minorities, aggravating a legitimate fear by jurists such as Black.[71] The minority approach is predicated upon the belief that Smith protects only religious groups who were not extended an exemption that was otherwise offered to other religious groups. Smith, however, is more favorable for religious observers than that. Smith protects religious groups who were not extended an exemption that was otherwise offered to anyone, secular or religious.

A. Revisiting Lukumi

Analyzing Lukumi under this light, one must ask: What did the people who passed the ordinance in Lukumi have a problem with? The majority approach would say the sacrificing of animals, and the minority approach would say the Santeria religion. A counterfactual is helpful in answering this question. Suppose tomorrow, the Pope issued a promulgation requiring that all Catholic churches must participate in animal sacrifice to glorify God. What, then, would be the result? Would the city exempt Catholics? Likely not. The idea of slaughtering an animal for a religious observance is troubling to many Americans, no matter who does it. Therefore, one can reasonably conjecture that the ordinance sought to prohibit the act of animal sacrifice, not the specific practices of the Santerian religion. Under this logic, courts should not look only to how the religious group was treated, but rather how consistent the government was in protecting its interest, as the majority approach suggests.[72]

Lukumi affirms this hypothesis. In Lukumi, slaughterhouses were exempt from the ordinance. The Court reasoned that the secular exemption rendered the ordinance to be in violation of the free exercise clause.[73] The Court explained that “a law cannot be regarded as protecting an interest…when it leaves appreciable damage to that supposedly vital interest.”[74] In other words, no secular justification for an exemption should be permitted if a religious justification is not also permitted. This is exceedingly inconsistent with the minority approach. The minority approach contradicts Lukumi, because the Court did not look to how the government treated other religious groups but rather how the government applied other secular exemptions.

B. Lukumi’s Contrast with Smith

Why did the Native Americans in Smith lose on their free establishment claim while the Santerians in Lukumi prevailed? Unlike the government in Lukumi, the government in Smith was consistent in its execution of the law. There, the government sought to prohibit recreational drug use.[75] Whatever its interest might be, the government was sincere about pursuing it, since there were no exemptions. On the other hand, the government in Lukumi was evidently not sincere. The government cringed at the idea of killing an animal for a god, yet it saw no issue or cruelty with killing an animal for food. This inconsistency is what Lukumi prohibited.

C. As Applied to Fulton

Like Lukumi, the City included exemptions in its policy.[76] Provision 3.21 forbade foster agencies from rejecting a child or family unless the City provided an exception.[77] These exemptions were extended “all the time.”[78] Such examples included geographic proximity, medical expertise, behavioral expertise, specialization in pregnant use, language needs, and tribal affiliation (or lack thereof).[79] Nevertheless, Philadelphia sent a letter to CSS indicating that it had “no intention of granting an exception for CSS.”[80]

The Court should apply the majority approach to Fulton, just as it did in Lukumi and just as the Sixth Circuit did in Ward. There are legitimate reasons for prohibiting foster agencies from being selective about the foster children and parents that they match. However, according to the City, those reasons are only legitimate whenever they are prohibiting a religious entity from being selective. If the City did not leave any choice to adoption agencies, and if CSS were assigned a same-sex couple, then, under Smith, CSS would have to work with the couple. However, the City lost that authority to enforce Provision 3.21 to religious organizations when it allowed for secular exemptions.

D. A Check on the Tyranny of the Majority

The Framers designed the Constitution so that the majority could not totally oppress minorities.[81] Contrary to what advocates of the minority approach might argue, the majority approach would not allow courts to increasingly strike down legislation aimed to protect a legitimate governmental interest. For example, the law in Smith would still be constitutional under the majority approach, and the government would still be able to carry out its will. However, the majority approach does prohibit the government from refusing to extend exemptions to religious organizations engaged in the same conduct. James Madison regarded one’s moral and religious conscience as “the most sacred of all property.”[82] Echoing this, the majority approach does not argue that the government must bend its will to every religious whim. Instead, the majority approach simply argues that when the government carries out its will, exemptions should be extended first to people of faith.

V. Conclusion

The Court should adopt the majority approach. Not only is it consistent with Smith and its progeny, but it also makes an already-harmful case for religious minorities less destructive. Adopting the minority approach would stray from the Court’s precedent in Lukumi and contribute to the increasingly fervent persecution that religious minorities undergo today.


[1] U.S. Const. amend. I., incorporated against the states in Cantwell v. State of Connecticut, 310 U.S. 296 (1940).

[2] Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990).

[3] Id. at 884 (citing Bowen v. Roy, 476 U.S. 693, 708 (1986)).

[4] Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012).

[5] Fulton v. City of Philadelphia, 922 F.3d 140, 154 (3d. Cir. 2019).

[6] 494 U.S. at 879.

[7] Id.

[8] Id.

[9] Id. at 890.

[10] Id. at 877.

[11] Id. at 919 (Black, H., dissenting).

[12] Id.

[13] Id. at 920 (quoting Wisconsin v. Yoder, 406 U.S. 205, 218 (1972)).

[14] Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993).

[15] Id. at 527

[16] Id. at 524

[17] Id. at 525-526.

[18] Id. at 526

[19] Id.

[20] Id.

[21] Id. at 528

[22] Id.

[23] Id. at 534

[24] Id. at 534 (quoting Bowen, 476 U.S. at 708 (1986)).

[25] Id. at 540

[26] Id.

[27] Axson-Flynn v. Johnson, 356 F.3d 1277, 1298-1299 (10th Cir. 2004); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1232 (11th Cir. 2004); Ward, 667 F.3d at 738-39 (6th Cir. 2012).

[28] Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1077 (9th Cir. 2015); Fulton, 922 F.3d at 154.

[29] Ward, 667 F.3d at 738.

[30] Id.

[31] Id.

[32] Id. at 730.

[33] Id. at 730, 32.

[34] Id. at 739.

[35] Id.

[36] Id. at 740.

[37] Id.

[38] Stormans, 794 F.3d at 1077 (9th Cir. 2015).

[39] Id. at 1077-78.

[40] Id. at 1073.

[41] Id. at 1071

[42] Id.

[43] Id.

[44] Id. at 1074.

[45] Id.

[46] Id. at 1077-78.

[47] Fulton v. City of Philadelphia, 140 S.Ct. 1104 (2020).

[48] Petitioner for Writ of Certiorari at i, Fulton v. City of Philadelphia, 140 S.Ct. 1104 (2020).

[49] Fulton, 992 F.3d at 147.

[50] Id.

[51] Id.

[52] Id. at 147-48.

[53] Id. at 148.

[54] Id. at 158.

[55] Id. at 148.

[56] Id. at 158.

[57] Id. at 149.

[58] Id. at 150.

[59] Fulton v. City of Philadelphia, 320 F.Supp.3d 661, 690 (E.D. Pa. 2018).

[60] Id..

[61] Id.

[62] Id.

[63] Id.

[64] Id. at 156.

[65] Id. at 154.

[66] Id. at 156.

[67] Id. at 158.

[68] Id. at 159.

[69] Fulton v. City of Philadelphia, 140 S.Ct. 1104 (2020).

[70] Smith, 494 U.S. at 884 (citing Bowen, 476 U.S. at 708).

[71] Id. at 919.

[72] In our case, the question is how the government protected its interest by means of extending exemptions. Smith and its progeny rest on the sheer fact that governments lose credibility when they promote an interest yet add exemptions that make the prohibited act otherwise acceptable.

[73] Lukumi, 508 U.S. at547.

[74] Id.at 545 (quoting Florida Star v. B.J.F., 494 U.S. 524, 542 (1989) (Scalia, J., concurring in part and concurring in judgment)).

[75] Smith, 494 U.S. at 874.

[76] Petitioner for Writ of Certiorari at 17, Fulton v. City of Philadelphia, 140 S.Ct. 1104 (2020).

[77] Id. at 12-13.

[78] Id. at 13.

[79] Id.

[80] Id.

[81] The Federalist No. 51 (James Madison). “Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”

[82] William T. Hutchinson et al., The Papers of James Madison, 266-68 (1972).

Making the Case: Colleges and Universities Should be Shielded from COVID-19 Liability

Photo by Dean Calma/IAEA on Flickr

Brandon Bryer, Associate Member, University of Cincinnati Law Review

I. Introduction

The spread of COVID-19 has upended nearly every aspect of daily life. As millions of students have returned to college campuses across the United States, a welcome once filled with excitement and anticipation was riddled with uncertainty. While the health and safety of its students is paramount, colleges and universities are facing another invisible threat – legal liability.[1] This additional threat has prompted college and university administrators to turn to state and federal legislators to swiftly pass liability protections against COVID-19 lawsuits.[2] Colleges and universities face numerous liabilities including class action lawsuits just for inviting students back to campus, compensation of student health costs or loss of wages, or even wrongful death.[3] Despite a push by Congressional Republicans, the federal government has yet to act.[4] However, numerous states have already passed or are actively debating COVID-19 liability shields for colleges, universities, and businesses alike.[5] This article analyzes the growing patchwork of COVID-19 liability statutes and ultimately argues that states should act quickly to enact liability protections for colleges and universities.  

II. Current COVID-19 Liability Shields

Roughly twenty states have enacted or proposed some form of liability protection for both public and private entities including colleges and universities.[6] While the approaches vary state to state, four aspects are common to most statutes: (1) barring ordinary negligence claims, (2) requiring a higher burden of proof, (3) limiting damages, and (4) applying liability protections retroactively. First, every statute prevents a COVID-19-harmed plaintiff from suing for ordinary civil negligence – a baseline legal standard that imposes liability against an entity for failing to exercise reasonable care.[7] Instead, COVID-19 statutes only permit liability when a college or university engages in sufficiently more culpable conduct.[8] For example, Ohio’s statute requires that its higher education institutions commit willful, wanton, or reckless misconduct in order to be held liable for COVID-19 related damages.[9] In Ohio, willful misconduct is purposefully doing a wrongful act with knowledge the act could harm someone and reckless conduct is consciously disregarding an unreasonable risk of harm to another.[10]

Similarly, Utah’s statute provides an absolute immunity from civil liability unless a college or university engages in willful misconduct, reckless infliction of harm, or intentional infliction of harm.[11] In Utah, reckless infliction of harm requires an actor to intentionally perform an act so unreasonable and dangerous that he knows it is highly probable harm will result.[12] Demonstrating willful or reckless conduct is a “substantially greater” burden for a plaintiff to prove as opposed to ordinary negligence where the defendant could have lacked intent entirely.[13]

Therefore, these terms mean exactly what they imply. If a student harmed by COVID-19 seeks redress, they must demonstrate that the college or university acted far beyond the ordinary negligence bar and took purposeful actions in ignorance of clear risks. For a plaintiff to even sue under a COVID-19 liability shield, a college or university would have to blatantly disregard state and federal COVID-19 regulations. For example, it is possible that if a college or university does not have a mandatory facemask policy or fails to implement proper social distancing guidelines, it might constitute willful conduct. A university could face liability for reckless conduct if it knew of a specific COVID-19 outbreak on campus but nevertheless held a crowded event where masks were not required. In any event, colleges and universities are unlikely to engage in such conduct, but COVID-19 shields ensure only institutions in blatant disregard will face liability.

The second common characteristic of COVID-19 liability statutes is that plaintiffs must overcome a relatively higher burden of proof at trial. To prevail on a standard negligence claim, a plaintiff need only prove the elements by a preponderance of the evidence – that the existence of a fact is more likely than not.[14] However, many COVID-19 liability statutes require plaintiffs to carry their burden of proof beyond clear and convincing evidence.[15] Significantly higher than the preponderance standard, the clear and convincing standard is only satisfied if the evidence leads to a “firm belief or conviction the allegations are true.”[16]

If a plaintiff can successfully identify willful or reckless conduct and can prove their case beyond clear and convincing evidence, a third commonality of statutes is to limit recoverable damages.[17] For example, Alabama’s Governor Proclamation only allows actual, economic compensatory damages and completely bars an award of punitive damages unless for wrongful death.[18] Fourth, COVID-19 statutes apply retroactively, protecting any conduct having occurred since the state’s Governor officially declared a state of emergency.[19] Some statutes have designated a specific date in 2021 when the liability shield will lapse, but other states have indefinite liability protections until the state’s emergency order is officially lifted.[20]

III. Analysis

Because COVID-19 lawsuits are unlikely to prevail on the merits, the mere assurance that costly lawsuits will not be filed against colleges and universities far outweighs any negative characteristics of liability shields. Since March of 2020, there have been approximately 5,480 COVID-19 related complaints filed in the United States.[21] This number has been steadily climbing with roughly 500 new suits per month.[22] Of those 5,480 complaints, 270 are against educational institutions.[23] Of those 270 complaints, 54 cases are for claims relating to negligence, personal injury, or other causes of action.[24] To some, 270 lawsuits against colleges and universities is minimal, but to others, it is 270 too many. While it can be fervently debated whether liability shields are working or not, current COVID-19 liability protections can be justified for three primary reasons, regardless of their effectiveness.

First, a plaintiff is unlikely to succeed on their claims even under the ordinary negligence standard in a state without COVID-19 liability protections. To prevail on an ordinary negligence claim, a plaintiff must demonstrate that a university had a duty of care to keep its students safe, it breached that duty, such breach resulted in damages, and the university itself was the cause of those damages.[25] This final causation requirement is likely fatal to many plaintiff’s claims.[26] As asymptomatic carriers of COVID-19 are ever present and contract tracing is an imperfect science, it is very unlikely a plaintiff could precisely pinpoint the exact moment they contracted the virus. It becomes even more unlikely the plaintiff could prove by a preponderance of the evidence that their contraction of COVID-19 was caused by the university.

Even assuming the plaintiff could demonstrate the university was the cause of their contraction, existing affirmative defenses are further hurdles a plaintiff would be unlikely to surpass. For the fall 2020 semester, colleges and universities have been entering into private contracts with students that have an assumption of the risk provision.[27] If sued by a student, a college or university can argue there was an express or primary assumption of the risk which completely negates the student’s negligence claim in most states.[28] Further, colleges and universities can argue the student was comparatively or contributorily negligent, meaning the student’s own actions contributed to the harm. For example, the college and university would simply argue the student contracted the virus at an-off campus social event, at a restaurant, at a bar, or even while they were walking along the sidewalk without a mask. The consequences of comparative and contributory negligence varies, but in a majority of states, a student would be unable to recover if they were found more than fifty percent at fault for contracting the virus.[29]

But, if a plaintiff is so unlikely to prevail on a COVID-19 lawsuit even under the ordinary negligence standard, why have liability shields at all? The answer to this question provides the second justification for COVID-19 protections – the high administrative and economic costs of American litigation. The economic burden just to defend against a lawsuit is substantial and can be especially detrimental for smaller, regional colleges and universities.[30] Many smaller universities have just one or two attorneys acting as general counsel[31] and massive COVID-19 liabilities would force those schools to outsource additional legal expenses at a heavy price. Institutions and individuals alike are feeling the brunt of the economic downturn induced by COVID-19. It is unreasonable to burden smaller, thinly-funded universities with the hefty administrative and financial costs of defending COVID-19 lawsuits that are unlikely to even prevail on their merits. To not provide protection would drive operating budgets further into the red and further into uncertainty. Any college or university, regardless of size or resources, will be forced to divert student tuition dollars and meaningful CARES Act funding away from educational programs and towards defending hollow COVID-19 lawsuits.[32]

A third justification stems from the fact that campus wide COVID-19 outbreaks are perfect candidates for class action lawsuits.[33] Class actions are notorious for generous payouts to trial attorneys while providing inadequate compensation to the class of plaintiffs who are actually harmed.[34] COVID-19 class actions would pose a unique economic and administrative risk to smaller universities due to the unequal pressure they would feel to simply absorb losses and settle against the class of plaintiffs. In fact, many class actions or large settlements are settled simply to avoid expending additional resources and to avoid negative coverage.[35] The result: colleges and universities may feel coercive pressure to settle a case even if they were not negligent in any way. By barring class actions and only holding colleges and universities liable for willful or reckless conduct, higher education institutions will be afforded much needed economic support and predictability.

IV. Conclusion

COVID-19 liability protections are practical, fair, and necessary. The statutes are practical because student claims against their college or university are unlikely to prevail under even an ordinary negligence analysis. The statutes are fair because colleges and universities are still held to a standard of accountability because they can still be held liable for willful or reckless conduct. Even with liability protections, colleges and universities must still follow health guidelines, provide virtual learning opportunities for students, and avoid conduct that places the health and safety of their student population at risk. The statutes are necessary because liability shields provide much needed stability in times of uncertainty and much needed financial protection in a time when funds are scarce. As the future of COVID-19 liability is as unpredictable as the virus itself, liability shields should be enacted to protect colleges and universities such that maximum resources can be dedicated to their core objective – educating students. In practice, the statutes still require a university to exercise a standard of care for the health of its students, but also protects against the economic and administrative detriments of unhinged potential liability.


[1] Jeremy Bauer-Wolf, Colleges turn to states for coronavirus liability protection, Education Dive, https://www.educationdive.com/news/colleges-turn-to-states-for-coronavirus-liability-protection/580818/ (last visited October 15, 2020).

[2] Id.

[3] Jillian Berman, Colleges are asking students to sign agreements about the dangers of COVID before returning to class – but schools insist they aren’t liability waivers, Market Watch, https://www.marketwatch.com/story/they-took-the-death-and-permanent-disability-part-out-of-there-which-is-nice-of-them-college-students-are-being-asked-to-sign-covid-19-liability-agreements-11597758794 (last visited October 15, 2020).

[4] Bauer-Wolf, supra.

[5] Angelo I. Amador, COVID-19 States Liability Protection Statutes, Restaurant Law Center, https://restaurant.org/downloads/pdfs/business/covid-19-states-liability-protection-statutes.pdf (last visited October 15, 2020).

[6] The states include: Alabama, Arizona, Arkansas, Georgia, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Ohio, Oklahoma, South Carolina, Utah, and Wyoming. Id.

[7] Blackmon v. Tri-Arc Food Systems, Inc., 782 S.E.2d 741, 745 (N.C. Ct. App. 2016). 

[8] Amador, supra note 5. 

[9] H.B. 606, 133rd Gen. Assemb. (Ohio 2020).

[10] Anderson v. Massillon, 983 N.E.2d 266, 273 (Ohio 2012).

[11] S.B. 3007, 2020 Third Special Sess. (Utah 2020).

[12] White v. Blackburn, 787 P.2d 1315, 1317 (Utah Ct. App. 1990).

[13] Anderson, 983 N.E.2d at 273.

[14] Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983).

[15] Amador, supra note 5. 

[16] In re M.R., 870 N.W.2d 175, 178 (N.D. 2015). 

[17] Amador, supra note 5.  

[18] Ninth Supplemental State of Emergency: Coronavirus (COVID-19), Office of the Governor of Alabama (May 8, 2020), https://governor.alabama.gov/newsroom/2020/05/ninth-supplemental-state-of-emergency-coronavirus-covid-19/.

[19] E.g., H.B. 606, 133rd Gen. Assemb. (Ohio 2020); S.B. 3007, 2020 Third Special Sess. (Utah 2020).

[20] H.B. 606, 133rd Gen. Assemb. (Ohio 2020).

[21] COVID-19 Complaint Tracker, Hunton Andrews Kurth, https://www.huntonak.com/en/covid-19-tracker.html (last visited October 15, 2020).

[22] Id.

[23] Id.

[24] Id.

[25] Blackmon, 782 S.E.2d at 745.

[26] Notably, a plaintiff would have to prove that the college or university was both the but-for and proximate cause of their contraction of COVID-19.

[27] Greta Anderson, Colleges Seek Waivers From Risk-Taking Students, Inside Higher Ed, https://www.insidehighered.com/news/2020/08/03/students-asked-sign-liability-waivers-return-campus (last visited October 15, 2020).

[28] Ochall v. McNamer, 79 N.E.3d 1215, 1228 (Ohio Ct. App. 2016).

[29] McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992).

[30] Cost Benefit of American Litigation, Law Offices of Stimmel, Stimmel & Roeser, https://www.stimmel-law.com/en/articles/cost-benefit-american-litigation (last visited October 15, 2020).

[31] Lawrence White, Managing Your Campus Legal Needs: An Essential Guide to Selecting Counsel, National Association of College and University Attorneys, https://www.acenet.edu/Documents/Managing-your-Campus-Legal-Needs-An-Essential-Guide-to-Selecting-Counsel.pdf (last visited October 15, 2020).

[32] Senate Republicans expressly argue that CARES Act funding should not be diverted from important educational expenses to “line the pockets of the trial bar.” SAFE TO WORK Act, S.B. 4317, 116th Cong. §2(11) (2020).

[33] This concern is prevalent enough that Ohio’s COVID-19 liability statute entirely bars filing a class action based in whole or in part on allegations that an entity “caused exposure to, or the transmission or contraction of” COVID-19. Governor DeWine Signs Law Shielding Ohio Employers From Liability for COVID-19 Related Lawsuits, National Law Review, https://www.natlawreview.com/article/governor-dewine-signs-law-shielding-ohio-employers-liability-covid-19-related (last accessed October 15, 2020).

[34] Jacob Shamsian, A case against Southwest Airlines reveals the biggest problem with consumer lawsuits in America, Business Insider, https://www.businessinsider.com/everything-wrong-with-class-action-lawsuits-in-america-2015-8 (last visited October 15, 2020).

[35] Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 162 (3rd Cir. 2001).