It Could Have Been Worse: The Relative Benefits Doctrine of Takings

Photo by Kelly Sikkema on Unsplash

J.P. Burleigh, Blog Editor, University of Cincinnati Law Review

I. Introduction

The Fifth Amendment guarantees that the government can only take private property for public use if the government justly compensates the property owner.[1] Courts use a variety of tests to decide if government action affects property so much as to be a “taking” requiring compensation to the owner.[2] The Supreme Court has recognized government-caused floods of private property as takings in certain circumstances.[3] But under a little-used theory called the relative benefits doctrine, the government can flood private property and avoid paying compensation if the flood is part of a program that provides more benefit than harm to the property.[4] This article explores the doctrine’s origins and a recent case showing the doctrine’s limits.

II. Background

The relative benefits doctrine emerged out of the Supreme Court’s 1939 decision in U.S. v. Sponenbarger.[5] In Sponenbarger, a woman alleged that the Mississippi Flood Control Act of 1928 was a taking of her property.[6] The Act aimed to limit seasonal flooding on the Mississippi River by building levees along the river.[7] Special diversion channels on the levees allowed flooding into certain areas.[8] Because the plaintiff’s property was within one of these floodways, she argued the government was causing floods on her property.[9]

In an opinion by Justice Black, the Court held that the government did not cause floods on the plaintiff’s property, because her land had always been subject to the “immemorial danger of unpredictable major floods.”[10] The Court found that the program “measured in its entirety greatly reduce[d] the general flood hazards [and was] highly beneficial” to her land.[11] Any increased risk or severity of flooding was minor compared to the benefit the plaintiff received from the Act, so the government owed her no compensation.[12] The opinion continued, providing language laying the groundwork for the relative benefits doctrine:

“The constitutional prohibition against uncompensated taking of private property for public use is grounded upon a conception of the injustice in favoring the public as against an individual property owner. But if governmental activities inflict slight damage upon land in one respect and actually confer great benefits when measured in the whole, to compensate the landowner further would be to grant him a special bounty. Such activities in substance take nothing from the landowner. While this Court has found a taking when the Government directly subjected land to permanent intermittent floods to an owner’s damage, it has never held that the Government takes an owner’s land by a flood program that does little injury in comparison with far greater benefits conferred.”[13]

Courts have applied Sponenberger’s reasoning to develop what is now called the relative benefits doctrine. Simply put, flood control programs do not constitute takings if, all things considered, the program benefits the property in question.[14] In analyzing whether a flood program benefits property, courts compare the program’s overall benefits and detriments to the property, including what would have happened if the government never acted at all.[15] Courts have used this doctrine to deny takings claims arising from dam and levee operation.[16] For example, in Hartwig v. U.S., plaintiffs argued that dams on the North Platte River caused flooding on their properties, but a court barred these claims because the dams actually decreased the risk of flooding and provided the added benefit of irrigation.[17]

In takings claims based on flooding of property, the relative benefits doctrine acts as a defense for the government to avoid paying compensation if the government can show the flood was part of a program that benefitted the property.[18] The judge-made policy behind the doctrine is based on the belief that property is not taken if that property ends up better off. But one recent case demonstrates the limits of this reasoning.

III. Alford v. United States

In 2010, the United States Army Corps of Engineers discovered a problem: a levee between the Mississippi River and Eagle Lake was failing because of pressure from the river.[19] If left alone, the levee would breach with over 95% certainty  and waters from the Mississippi River would flood about a million acres of land, including thousands of homes and businesses.[20]  The Corps studied what to do for over a year and ultimately decided to intentionally flood Eagle Lake. The Corps raised Eagle Lake’s water level about fifteen feet higher than normal, counteracting the pressure on the levee.[21] The Corps maintained this heightened water level for three months, then reduced the lake to its normal water level and spent $2.7 million to permanently reinforce the levee.[22] This plan successfully avoided a levee breach but wrecked many of the piers, boathouses, and docks on the lake, causing thousands of dollars of property damage.[23] 

Although the Corps gave claim forms to the affected property owners, the federal government denied compensation for the destroyed property.[24] The affected property owners argued the government had taken property without compensation in violation of the Fifth Amendment, and sued in the Court of Federal Claims, which awarded $168,000 plus interest for the collective damage.[25] But the Federal Circuit reversed, applying the relative benefits doctrine.[26] The court explained that “the properties would have been far worse off and suffered more serious damage if the government had not acted.”[27] In the eyes of the appellate court, the benefit of avoiding a massive flood from a levee breach outweighed any injury the property owners suffered.[28]

IV. Analysis

The Federal Circuit’s decision in Alford demonstrates a weakness of the relative benefits doctrine. In Sponenbarger, the government’s levee system minimized the number ofnatural floods on the plaintiff’s property; in that context, the few seasonal floods that still affected her property were not government-caused takings. But in Alford the only flood at issue was not natural at all; it was a man-made flood, resulting from a deliberate government decision. The Corps studied the endangered levee for over a year and knew that flooding Eagle Lake was less expensive than strengthening the levee. After weighing costs, the Corps chose to flood the plaintiff’s property, knowing that such a flood would cause property damage.

Fairness requires that the government compensate the property owners for the property losses they suffered at the hands of the Corps. Consider an example. What if one woman owned a 100-acre plot of land in a valley which had a thousand people, and the Corps erected a dam on 20 acres of her land? Even if she is safer from a flood, the government has obviously taken some of her property. She deserves compensation for bearing a disproportionate burden to keep the other residents of the valley safe. The plaintiffs in Alford suffered a similar fate: the Corps prevented a flood by reinforcing the levee with water and destroyed the plaintiffs’ property to do so.[29] Even if the plaintiffs avoided the hypothetically likely massive flood from the levee breaching, they still suffered from the real flood created to save everyone else.

The relative benefits doctrine should be phased out to allow property owners like those in Alford to be compensated for their losses. This does not mean that the government will be liable for a taking every time a dam or levee fails to prevent a flood; careful analysis of causation can supply the right answer. For instance, Sponenbarger’s language about “slight damage” and “great benefits” is unnecessary to its main holding: the government did not cause the Mississippi River to flood.[30] But failing to prevent a natural harm is different than creating a man-made one, and when the government intentionally harms property, the Fifth Amendment’s Takings Clause should come into play.

V. Conclusion

The relative benefits doctrine allows the government to avoid paying compensation for intentionally flooding property if the government can show the flood is part of a program that benefits the property overall. This doctrine sprang out of a case about a natural flood, but the Federal Circuit has applied it in Alford to protect the government even when it creates a man-made flood. The doctrine has outgrown its usefulness, and future courts should decline to use it. Careful attention to issues of causation will ensure that property owners do not receive windfalls and allow courts to better enforce the Fifth Amendment’s guarantee—private property shall not be taken for public use without just compensation.


[1] U.S. Const. amend. V.

[2] See generally Loretto v. Teleprompter, 458 U.S. 419 (1982) (permanent physical invasion); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (denial of all economically beneficial use); Dolan v. City of Tigard, 512 U.S. 374 (1994) (exactions); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (regulatory takings).

[3] Arkansas Fish & Game Commission v. U.S., 568 U.S. 23, 32 (2012) citing Pumpelly v. Green Bay Co., 13 Wall. 166, 181 (1872).

[4] Herriman v. U.S., 8 Cl.Ct. 411, 418-19 (Ct. Cl. 1985).

[5] 308 U.S. 256 (1939).

[6] Id. at 260.

[7] Id. at 261.

[8] Id. at 261-62.

[9] Id. at 262.

[10] Sponenbarger, 308 U.S. at 265.

[11] Id. at 266.

[12] Id.

[13] Id. at 266-67.

[14] Alford v. U.S., 2020 WL 3393533, *2-*3 (Fed. Cir. 2020).

[15] Id. at *4.

[16] Hartwig v. U.S., 485 F.2d 615, 621 (Ct. Cl. 1973) (operation of dams on North Platte River was not a taking); Herriman v. U.S., 8 Cl.Ct 411, 422 (Cl. Ct. 1985) (operation of Eufaula Dam was not a taking); Laughlin v. U.S., 22 Cl.Ct. 85, 114 (Cl. Ct. 1990) (operation of Hoover Dam and surrounding dams was not a taking); Big Oak Farms, Inc. v. U.S., 105 Fed.Cl. 48, 57 (operation of a levee on the Mississippi River was not a taking).

[17] Hartwig, 485 F.2d at 616-17.

[18] Alford, 2020 WL 3393533 at *3.

[19] Alford v. U.S., 141 Fed.Cl. 421, 424 (Fed. Cl. 2019).

[20] Id. at 424-25.

[21] Id. at 424.

[22] Id. at 425.

[23] Id. at 424.

[24] Alford, 141 Fed.Cl. at 425.

[25] Id. at 427.

[26] Alford, 2020 WL 3393533 at *4.

[27] Id.

[28] Id.

[29] Id. at *1.

[30] Sponenbarger, 308 U.S. at 265-66.

A Textualist’s Dream: Reviewing Justice Gorsuch’s Opinion in Bostock v. Clayton County

Photo by Bill Mason on Unsplash

Hunter Poindexter, Articles Editor, University of Cincinnati Law Review

I. Introduction

Last week, the Supreme Court delivered a landmark decision for LGBTQ rights. In Bostock v. Clayton County, the Court held that Title VII of the Civil Rights Act of 1964 protects gay and transgender individuals from workplace discrimination. The Court’s decision was fairly surprising, as the Justices divided 6-3 in favor of the employees, with conservative Justice Neil Gorsuch authoring the opinion. The decision has, of course, brought forth some speculation on Justice Gorsuch’s ideological positioning on the Court. This article discusses Justice Gorsuch’s opinion in Bostock and how to reconcile that opinion with Justice Gorsuch’s conservative, textualist jurisprudence. 

II. Background

In relevant part, Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer” to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” [1]Facially, the statute reads clear in regard to sex discrimination: no employer can make discriminatory employment decisions because of an individual’s sex. However, the issue of what actions may constitute sex discrimination has been litigated since the enactment of the statute. As Justice Gorsuch noted in his Bostock opinion, the Court has historically applied a broad reading of the statute, encompassing a vast array of conduct.[2] For example, in 1971 the Court held that an employer discriminates on the basis of sex when it refuses to hire a woman with young children where it would nonetheless hire a man with young children.[3] In 1989, the Court ruled that an employer commits sex discrimination when it makes employment decisions based on an employee’s failure to conform to gender stereotypes.[4] Furthermore, in 1998 the Court held that Title VII protects an employee from sexual harassment by coworkers of the same sex.[5]

Prior to the Court’s Bostock decision, a number of circuits had already ruled on the matter of sexual orientation under Title VII. For example, in Blum v. Gulf Oil Corp.,[6] the Fifth Circuit held that Title VII does not protect an individual from discrimination on the basis of sexual orientation. Likewise, in Evans v. Ga. Reg’l Hosp.,[7] the Eleventh Circuit, relying on Blum, rejected the notion that sexual orientation fell within the protections of Title VII. Alternatively, both the Second and Seventh Circuits have held that Title VII’s sex discrimination protections necessarily encompass an employee’s sexual orientation.[8] Therefore, when the Court took up the matter on a grant of certiorari, it put itself in a position to resolve a rather significant split among several circuits.

III. The Consolidated Cases

The Bostock decision was a joint opinion comprised of three cases: Bostock v. Clayton County, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. Both Bostock and Zarda dealt with the issue of sexual orientation, and were consolidated for briefing and oral argument. Alternatively, Harris Funeral Homes concerned employment discrimination for transgender employees. In each case, an employer fired an employee for seemingly no other reason than the employee’s sexual orientation or gender identity. 

A. Bostock v. Clayton County

The Bostock case was premised around the firing of a gay man in Clayton County, Georgia. Gerald Bostock was a highly regarded child services advocate in Clayton County for ten years until he was fired in 2013.[9] Bostock led the County’s Court Appointed Special Advocate program, and under his command, the program won several awards for excellence.[10]  In 2013, Bostock began participating in a gay softball league.[11]After several prominent members of the Clayton County community made disparaging remarks about Bostock’s participation in the league, the County conducted “an unwarranted ‘audit’” on Bostock’s child services program.[12] Shortly thereafter, Bostock was fired for “‘conduct unbecoming of a county employee.’”[13]

Bostock subsequently brought suit against the county for discrimination under Title VII.[14] At trial, the District Court dismissed Bostock’s complaint, citing Evans’s holding that Title VII’s bar on sex discrimination does not protect an individual from discrimination on the basis of sexual orientation.[15] Further, the Eleventh Circuit affirmed the District Court’s dismissal of Bostock’s claims. On April 22, 2019, the United States Supreme Court granted certiorari.[16]

B. Altitude Express, Inc. v. Zarda

The facts in Zarda were similar to those in Bostock. Donald Zarda worked as a skydiving instructor at Altitude Express.[17] Prior to a dive, Zarda mentioned to a customer that he was gay.[18] Within a few days of the comment, Zarda was fired for, as Altitude Express claimed, “‘sharing inappropriate information with [customers] regarding his personal life.’”[19] Zarda filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) against Altitude Express, and then brought suit in federal court under Title VII and New York state law.[20] Prior to trial, the District Court granted Altitude Express’s motion for summary judgment on the Title VII claim, concluding that, under then-Second Circuit precedent, Title VII did not protect employees from discrimination for sexual orientation. [21] At trial for the state claim, a jury returned a verdict in favor of Altitude Express.[22] Donald Zarda passed away prior to the trial, but his estate executors were substituted in the litigation.[23]

On appeal, the Second Circuit initially affirmed the District Court’s grant of summary judgment; however, the Court of Appeals subsequently granted Zarda’s petition for an en banc hearing on the matter.[24] In its en banc decision, the Second Circuit reversed its prior ruling, holding instead that “sexual orientation discrimination is properly understood as ‘a subset of actions taken on the basis of sex.’”[25] Following the Second Circuit’s reversal, Altitude Express filed a petition for certiorari, which the Supreme Court granted on April 22, 2019.[26] The Court subsequently consolidated Zarda with Bostock for briefing and oral argument.[27]

C. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

Unlike Bostock and Zarda, the facts of Harris Funeral Homes were premised on gender identity. Aimee Stephens, who was assigned a male gender at birth, was a funeral director at R.G & G.R. Harris Funeral Homes (“Harris Funeral Homes”).[28] After working at the funeral home for close to six years, Stephens informed her employer that she intended to work and live as a woman.[29] Within two weeks of apprising her employer of her decision, Stephens was fired.[30] Following Stephens’s termination, her employer openly acknowledged that he fired Stephens because of her transgender identity, and not her job performance.[31]

Stephens brought a discrimination charge to the EEOC, who then brought suit against Harris Funeral Homes on Stephens’s behalf.[32] At the trial level, the District Court rejected Harris Funeral Homes’ motion to dismiss, concluding that Stephens could bring a sex discrimination claim if she was terminated for a failure to conform to gender stereotypes.[33] However, the District Court later granted summary judgment in favor of Harris Funeral Homes because the Religious Freedom Restoration Act exempted the funeral home from Title VII requirements.[34] On appeal, the Sixth Circuit reversed, holding that Stephens’s termination for her transgender status, was, indeed, sex discrimination.[35] Harris funeral homes petitioned the Supreme Court for certiorari, which the Court granted.[36]

IV. The Bostock Opinion

In Bostock, the Court divided 6-3, with Chief Justice Roberts and the Court’s four liberal Justices joining Justice Gorsuch’s majority opinion, in full.[37] Unsurprisingly, Justice Gorsuch’s opinion was rooted in textualist jurisprudence. First, Justice Gorsuch set out to determine the “ordinary public meaning” of the statute’s text at the time of its enactment in 1964.[38] After parsing through the language, Justice Gorsuch acknowledged that the statute provided a “straightforward rule,” that “[a]n employer violates Title VII when it intentionally fires an employee based in part on sex.”[39] Having established this rule through the statute’s text, Justice Gorsuch then went on to determine whether an employer violates the rule by firing employees for sexual orientation or gender identity.

In analyzing the issue of discrimination for sexual orientation, Justice Gorsuch posed a simple hypothetical: Two employees are virtually identical, except that one is a man and one is a woman. Both employees are attracted to men. When the male employee is fired for being attracted to men but the female employee is not, the male employee has been discriminated against on the basis of sex.[40] Justice Gorsuch then posed a similar hypothetical as it relates to gender identity: An employer fires a transgender employee who identifies as a female but was assigned a male sex at birth. If the employer then hires an identical employee who identifies as a female and was assigned a female sex at birth, “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.[41]” To that end, the majority held that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]”[42] Further, the majority opinion concluded that an employer cannot escape Title VII liability merely because it fires all gay or transgender employees, regardless of their sex.[43] Rather, in that case, the employer would “double[]” its liability under Title VII.[44]

The majority opinion also rejected an argument that, in 1964, Congress could not have intended for Title VII to encompass protections for gay and transgender employees.[45] Rather, Justice Gorsuch concluded that legislative history and intent should only be consulted when a statute is ambiguous, which was not the case here.[46] Because the text of Title VII is clear, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”[47] For, as Justice Gorsuch wrote, “[w]hen the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is law, and all persons are entitled to its benefit.”[48]

Justice Gorsuch appears to have written Bostock with a broad audience in mind. Although the Court was tasked with analyzing the textual structure of Title VII, Justice Gorsuch drafted the opinion in a manner easily understandable by both the legal community and non-lawyers, alike. For example, in reviewing the “ordinary public meaning” of Title VII, Justice Gorsuch broke down the statute step-by-step, explaining throughout the opinion the meaning of certain legal phrases, such as “but-for causation.”[49] Additionally, as aforementioned, the opinion is teeming with hypotheticals and examples to help explain the Court’s rationale behind its decision. Admittedly, the opinion’s appeal to a broad audience is unsurprising; Bostock effectively protected the rights of millions of Americans from workplace discrimination, so the decision was sure to see heavy reader traffic.

V. Justice Gorsuch’s Jurisprudence

Let’s be clear about one thing early on: Bostock was a purely textualist decision. In briefing and oral arguments in the sexual orientation cases, Pamela Karlan, counsel for Bostock and Zarda, appealed to the Justices’ textualist nature. Chief among her arguments was that the language of Title VII, alone, properly encompassed sexual orientation, and that the Court had to play no activist role to find in favor of the employees. In fact, the sexual orientation hypothetical posed by Justice Gorsuch in the majority opinion was first posed by Karlan at oral arguments. With this in mind, Karlan was clearly making a textualist play, likely aimed at the Court’s more conservative members.

With this backdrop of textualism in mind, what does the majority opinion reveal about Justice Gorsuch’s jurisprudence moving forward? Likely not much. While Gorsuch admittedly wrote an historic opinion protecting the rights of the LGBTQ community, it is unlikely that we’ve seen the Court’s textual stalwart shift his ideological position. Justice Gorsuch is a self-proclaimed textualist, who often seeks to base his opinions in the written word of a statute.[50] As discussed above, Pamela Karlan played directly into Justice Gorsuch’s wheelhouse with arguments rooted in the express language of Title VII. Bostock was the perfect case for a textual jurist; the majority opinion was anchored in dictionary definitions and canons of statutory construction. Justice Gorsuch had to do no reaching here, as Karlan and the text of Title VII brought him to an answer. So, no, Justice Gorsuch is most likely not going to be the Court’s new John Paul Stevens. But even then, the impact of Justice Gorsuch’s opinion should not be relegated merely to a conversation about his potential shift in ideological positioning. Rather, it is important to recognize the Court’s momentous decision in Bostock and acknowledge Justice Gorsuch’s contribution.

VI. Conclusion

In sum, we are not likely seeing the evolution of Neil Gorsuch following the Court’s Bostock opinion. No doubt, Bostock is a landmark decision which effectively protects the rights of LGBTQ employees from discrimination in the workplace. However, Justice Gorsuch is not now, and likely never will be, a liberal jurist. Rather, the Bostock decision was the result of convincing statutory text and effective advocacy. Even then, it is important not to discount how momentous Bostock is for the nation. Although Justice Gorsuch has likely not shifted to the left of the Court, his opinion in Bostock has nonetheless made a meaningful contribution to the rights of the LGBTQ community.


[1] 42 U.S.C. § 2000e-2(a) (emphasis added).

[2] 2020 U.S. LEXIS 3252 at *37.

[3] Phillips v. Martin MariettaCorp. 400 U.S. 542 (1971).

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

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

[6] 597 F.2d 936 (5th Cir. 1979).

[7] 850 F. 3d 1248 (11th. Cir. 2017).

[8] Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). Zarda would go on to be consolidated with Bostock at oral argument before the Supreme Court on a grant of certiorari.

[9] Brief for Petitioner at 4, Bostock v. Clayton County, No. 17-1618 (June 26, 2019).

[10] Id. at 5.

[11] Id.

[12] Id. 5-6.

[13] Id. at 6.

[14] Id.

[15] Id.

[16] 139 S. Ct. 1599 (2019). 

[17] Brief of Respondent at 3, Altitude Express, Inc. v. Zarda, No. 17-1623 (June 26, 2019).

[18] Id. at 4.

[19] Id. 

[20] Id. at 4-5.

[21] Id. at 5.

[22] Id. at 6.

[23] Id. at 5.

[24] Id. at 6.

[25] Id. at 6-7.

[26] 139 S. Ct. 1599 (2019).

[27] Id.

[28] Brief of Respondent at p.4-6, R.G. & G.R. Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107 (June 26, 2019).

[29] Id. at 7-8.

[30] Id. at 9.

[31] Id. at 9.

[32] Id. at 11-12.

[33] Id. at 12.

[34] Id. at 12-13.

[35] Id. at 13-14.

[36] 139 S. Ct. 1599 (2019).

[37] 2020 U.S. LEXIS 3252 (2020).

[38] Id. at *12.

[39] Id. at *20.

[40] Id. at *21.

[41] Id.

[42] Id. at *36.

[43] Id. at *40.

[44] Id.

[45] Id. at *44-45.

[46] Id.

[47] Id. at *10.

[48] Id.

[49] Id. at *15.

[50] Neil M. Gorsuch with Jane Nitze & David Feder, A Republic If You Can Keep It 128-44 (2019).

Did the Ninth Circuit Create a Circuit Split? Analyzing Cedar Point Nursery v. Shiroma

Photo by Dan Meyers on Unsplash

Mike Chernoff, Blog Chair, University of Cincinnati Law Review

I. Introduction

The Fifth Amendment protects private property owners from their property being taken for public use, unless they are compensated sufficiently. California allows labor organizers to access agricultural employers’ properties to discuss labor issues, so long as certain conditions are met. This regulation was challenged by two agricultural employers that claimed it amounted to a taking. The Ninth Circuit upheld the dismissal of the claim, but the dissent claimed the majority’s decision created a circuit split. As this article will explain, the Ninth Circuit was correct to deny the Plaintiffs’ claim; in doing so, the court did not create a circuit split but instead followed established precedent.

II. Fifth Amendment Takings

The Fifth Amendment prevents private property from being taken for public use, unless there is “just compensation.”[1] The Supreme Court has recognized various categories of regulatory takings which apply to “regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.”[2]

These regulatory takings include per se takings which include situations “where government requires an owner to suffer a permanent physical invasion of her property—however minor” and regulations that deprive an owner of “all economically beneficial us[e] of her property.”[3] A state law is determined to violate the Fifth Amendment if the regulatory restriction on private property “[forces] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”[4] The Supreme Court provided an example of a permanent physical invasion in Loretto v. Teleprompter Manhattan CATV Corp., where a state law required landlords to allow cable television companies to install cable facilities on their property.[5] However, the Supreme Court also stated that “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense” in PruneYard Shopping Center v. Robins.[6] In PruneYard, the Supreme Court ruled that allowing the public to exercise the rights of free expression and petition on shopping center property was not an infringement of property rights under the Fifth Amendment.[7]

III. Cedar Point Nursery v. Shiroma

In 1975, California enacted the Agricultural Labor Relations Act which established the creation of the Agricultural Labor Relations Board (“the Board”) to “guarantee[] justice for all agricultural workers and stability in labor relations.”[8] The Board promulgated a regulation early in its existence that allows union organizers access to employees on their employers’ property in certain circumstances.[9] This regulation allows labor organizers to access an agricultural employer’s property for four days out of a 30 day period and limits how many hours the organizers can spend at the property.[10] The 30 day period begins after a labor organization has filed a notice.[11]

In 2015, Cedar Point, an Oregon corporation with a California nursery, and Fowler, a California shipper of grapes and citrus, each had separate incidents of organizers of the United Farm Workers Union seeking access to their employees.[12] In February 2016, Cedar Point and Fowler (“Plaintiffs”) filed a complaint for declaratory and injunctive relief against the Board, claiming the Board’s access regulation amount to a taking in violation of the Fifth Amendment and an unreasonable seizure in violation of the Fourth Amendment.[13] The District Court granted the Board’s motion to dismiss and the Growers sought an appeal to the Ninth Circuit Court of Appeals.[14]

On appeal, the Plaintiffs based their Fifth Amendment argument on the theory that the Board’s access regulation constituted a permanent physical invasion of their property.[15] The Plaintiffs argued that intermittent physical invasions can be permanent if there is no “contemplated end-date” to the intrusions.[16] The Ninth Circuit disregarded this argument, finding that the regulation did not create a permanent physical occupation because the Plaintiffs’ property could not be continuously traveled by the public at any time.[17] The Ninth Circuit further stated that the Board’s regulation did not constitute a taking because the only property right affected was the right to exclude.[18] The Ninth Circuit affirmed the dismissal by the District Court.[19]

The Plaintiffs petitioned for rehearing en banc, which the Ninth Circuit denied.[20] However, Judge Ikuta suggested in her dissent that the majority’s decision had created a circuit split.[21] Judge Ikuta believed that the Federal Circuit’s decision in Hendler v. United States provided an example which would make the labor organizers’ access a taking under the Fifth Amendment.[22] In Hendler, various government vehicles and equipment would enter the Plaintiff’s land without permission to install and service groundwater wells.[23] The Federal Circuit held this amounted to a taking despite only certain government vehicles entering the property.[24] Judge Ikola claimed an easement that allows entry onto private property is a taking and that the Ninth Circuit is the only Circuit that refuses this as a taking.[25]

Judge Paez’s concurrence with the majority refuted Judge Ikola’s claims of a circuit split.[26] According to Judge Paez, an easement does not create a permanent physical invasion in every situation.[27] The concurrence focused on the fact that the Board had not established a permanent physical structure on the Plaintiffs’ property.[28] Also, the organizers were only allowed on the property in specific situations under the regulation.[29] Due to these differences, Judge Paez argued that the majority held correctly and did not create a circuit split.[30]

IV. Analysis

This case brought to light the question of how much access is required to constitute a taking. The access regulation from the Board would have only allowed organizers to access the Plaintiffs’ properties a maximum of 360 hours per year with 120 of those hours only allowed during the workday.[31] These short timeframes also came with the requirement that the employers had received notice of the organizers intent to access the property.[32] These restrictions on the amount of time an organizer may access the property and the filing requirements prevent the access from becoming “permanent” which is needed for a taking. After the allotted amount of time has expired for the organizers’ access, the employer can exclude the organizers from the property. Similarly, the filing is only valid for 30 days. Once this time period has expired, the organizers do not have access to the property without another filing. Therefore, the Plaintiffs’ claim that the organizers’ access is a “permanent physical invasion” fails because the access is not “permanent.”

The dissent’s claim of a circuit split also does not stand against the concurrence’s argument. Disregarding the fact that the organizers’ access time is limited, there is no element of the access that is “permanent” as seen in prior cases. The organizers do not install equipment or invade any portion of the property, other than to discuss labor issues at specific times. The levels of access allowed by this regulation do not amount to the decisions that the dissent relies on when claiming the circuit split. The majority correctly held that this level of access did not satisfy the standard of a “permanent physical invasion” that is required for the claimed type of Fifth Amendment taking.

V. Conclusion

The Ninth Circuit considered what is the minimum amount of access to qualify as a taking under the Fifth Amendment. The Board’s access regulation greatly limits when labor organizers may access agricultural property and grants no permanent access for these organizers. Despite the dissent’s claim in Cedar Point Nursery v. Shiroma that this created a circuit split, the majority was correct that this case is distinguishable from the Hendler due to the lack of permanent access granted by the regulation.


[1] U.S. Const. amend. V.

[2] Cedar Point Nursery v. Shiroma (Cedar Point I), 923 F.3d 524, 530-531 (9th Cir. 2019), reh’g denied, 956 F.3d 524 (9th Cir. 2020) (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005)).

[3] Cedar Point I, 923 F.3d at 531 (citing Lingle, 544 U.S. at 538).

[4] PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980). (quoting Armstrong v. United States, 364 U.S. 40, 48 (1960).

[5] Cedar Point I, 923 F.3d at 531.

[6] Id. at 532; PruneYard, 447 U.S. at 82.

[7] PruneYard 447 U.S. at 82-83.

[8] Cedar Point I 923 F.3d at 526 (quoting Cal Lab. Code § 1140 note (West 2011) (Historical and Statutory Notes)).

[9] Cedar Point I, 923 F.3d at 527.

[10] Id. at 528.

[11] Id.

[12] Id. at 528-529.

[13] Id. at 529.

[14] Id. at 529-530.

[15] Id. at 531.

[16] Cedar Point I, 923 F.3d at 531.

[17] Id. at 532.

[18] Id.

[19] Id. at 534-536.

[20] Cedar Point Nursery v. Shiroma (Cedar Point II), 956 F.3d 1162, 1162 (9th Cir. 2020).

[21] Id. at 1165 (Ikuta, J., dissenting).

[22] Id. at 1170-71; Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991).

[23] Hendler, 952 F.2d at 1377.

[24] Id. at 1377-78.

[25] Cedar Point II, 956 F.3d at 1171.

[26] Id. at 1162-63.

[27] Id. at 1164-65.

[28] Id. at 1165.

[29] Id.

[30] Id. at 1165.

[31] Cedar Point I, 923 F.3d at 536.

[32] Id. at 528.

A Call for the Expansion of the Visual Artists Rights Act

Photo by Erik Witsoe on Unsplash

Sam Berten, Blog Editor, University of Cincinnati Law Review

I. Introduction

United States (“U.S.”) copyright law provides substantial protections against copyright infringement; however, the U.S. does not adequately protect an author’s moral rights.[1] Moral rights protect an author’s reputation and allow authors to control their attributions.[2] The European legal system has stronger moral rights protections than the U.S. legal system, and France provides the most robust moral rights protections. The U.S. must adapt and current moral rights legislation to adequately protect American authors and provide them the same rights other countries vest in their authors.

II. Background

Moral rights come from the French term droit moral, which translates to “moral rights.”[3] Moral rights are included in international copyright law, including Article 6bis of the Berne Convention (the leading international copyright treaty).[4] Article 6bis states:

(1) independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.[5]

Because moral rights are included in 6bis, all 178 Berne Convention member states, including the U.S., have to meet the minimum moral rights protections stated in the convention. This means that each Berne member must “provide for at least the moral rights of paternity and integrity.”[6]

The right of paternity (droit de paternite) is often referred to as “attribution” and it gives an author the power to recognize their works and protect their name from being attached to a work they did not create.[7]  The right of attribution is not included in U.S. copyright law, but artists in the U.S. have benefitted from its protections. For instance, American film directors that are unhappy with how their films are edited can have their name replaced with “Allen Smithee.”[8]

The right of integrity (droit au respect de l’integrite de l’oeuvre) allows authors to object or approve of any changes to their works.[9] For example, “manipulating a scanned photograph may be a violation of moral rights (the right of integrity) if prejudicial to the honor or reputation of the author of the photograph.”[10] Additionally, many countries disallow certain kinds of changes. France and Belgium forbid any alternation not approved by the artist.[11] Germany, Denmark, and Italy, on the other hand, only disallow changes that affect the artist’s reputation or honor, consistent with Article 6bis.[12]

Some countries go beyond Article 6bis’s minimum requirements (the rights of integrity and attribution) and include the rights of repenting and disclosure. The right of repenting (withdrawal; droit de repentir) allows artists to remove a work from the public if it no longer reflects their interests.[13] For instance, under Italian Copyright Law, authors may remove the work from the market “for serious moral reasons . . . which include ethical, intellectual, political and religious reasons, and also such cases where the work is in contrast with the changed personality of the author.”[14] France and Germany have adopted the right or repentance, but this right is controversial because it “subordinates the public interest to the self-interest of individual authors.”[15]

The right of disclosure (droit de divulgation) allows an artist to choose when and how their works appear.[16] For instance, Charles Camoin, a French painter, threw away one of his works after cutting it apart and then discovered it had been reconstructed and put up for auction.[17] Camoin sued for the return of the work and damages, and the court held that he had renounced his physical claim to the work.[18] The court also held that Camoin’s moral right of disclosure still existed, and Camoin had the right to control if his work appeared in front of the public or not.[19]

These four rights are the foundation for moral rights claims; however, moral rights are nuanced in every country.[20] Berne Convention member states have a lot of discretion when it comes to implementing Article 6bis.[21] In France, for example, moral rights are perpetual and are not severed at the author’s death.[22] This means that heirs can posthumously invoke the author’s moral rights.[23] This perpetual protection, along with the stalwart protection of all four moral rights, makes France one of the strongest moral rights protectors in the European system.[24]

The U.S., on the other hand, is more restrictive. In 1989, the U.S. joined the Berne Convention and shortly after ratified the Visual Artists Rights Act of 1990 (“VARA”).[25] VARA expands the rights granted to American authors by adding the minimum requirements from Article 6bis of the Berne Convention, the moral rights of attribution and integrity.[26] VARA provides that an author who has created a visual work has the right to claim authorship of that work, prevent the use of their name for any work that they did not create, and/or prevent the use of their name as a creator of a work of art if it has been distorted, mutilated, or modified in a way that would be “prejudicial to his or her honor or reputation.”[27] Additionally, an author:

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.[28]

But, these rights are only extended to visual works of art. Under Section 101 of the Copyright code, a work of visual art includes “a painting, drawing, print or sculpture . . . or (2) a still photographic image produced for exhibition purposes only.”[29] A work of visual art does not include, “any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical . . . .”[30] Any works made for hire, or merchandise or promotional items, or any works not subject to copyright protection are also excluded.[31]

In 2017, the U.S. Copyright Office (“USCO”) undertook “‘a public study on moral rights for authors, specifically the rights of attribution and integrity.’”[32] This study examined whether the U.S. should expand moral rights protection.[33] On April 23, 2019, the USCO published its report, stating that “moral rights and contract law is ‘generally working well and should not be changed.’ At the current time, ‘there is no need for the creation of a blanket moral rights statute.’”[34] The report recommended three changes to VARA:

The first proposed change would clarify that VARA’s exclusion for “commercial art” is limited to artworks both created pursuant to a contract and intended for commercial use. The second proposed change would add language clarifying how courts should interpret the “recognized stature” requirement, requiring courts to consult a broad range of sources. The third proposed change would provide that no joint author could waive another joint author’s moral rights under VARA without the written consent of each affected author. These changes, taken together, would improve significantly the usefulness of VARA to protect artists’ attribution and integrity interests―addressing some of the limitations that have hampered successful VARA claims without expanding VARA’s scope beyond the sorts of works that Congress sought to protect.[35]

This report serves as a roadmap for Congress if Congress wishes to strengthen or streamline the U.S. moral rights framework.[36]

Additionally, U.S. courts have ruled on VARA claims. In Cohen v. G & M Realty L.P., colloquially called “5Pointz,” the Federal District Court for the Eastern District of New York held that the defendants had violated VARA and awarded multi-million dollar damages for copyright infringement.[37] 5Pointz was a compound known for the graffiti that covered its walls until the owner decided to destroy the compound in 2013.[38] Senior District Judge Block found the “Defendant liable for 45 out of 49 works of art [that were destroyed], stating that ‘given the abject nature of Wolkoff’s willful conduct, the Court awards the maximum statutory damages under VARA for each of the 45 works of art wrongfully and willfully destroyed.’”[39] Judge Block awarded the maximum statutory damages to the artists, $150,000 for each of the 45 works, for a sum of $6,750,000.[40] The Court did not award any actual damages because “‘the plaintiffs failed to establish a reliable market value for their works’ and that ‘the gain realized by Wolkoff [the owner] and his companies is best addressed in calculating an award under the statutory damages factors.’”[41]

III. Analysis

There is a distinct tension between the French and American approaches to moral rights. In France, “there is an attitude about protecting culture that seems to transcend plain legal logic . . . as French moral rights seem to operate antithetically to basic tenets of protecting the liberty of free market [sic] negotiations and upholding bargained-for exchanges.”[42] Meanwhile, “the notions of a free market may be too strongly entrenched in U.S. law to give way to an adoption of moral rights similar to the French.”[43]

Thus, there is a cultural reason for the differences between the French and American moral rights system. Because of this cultural difference, substantial changes to VARA may be difficult. However, some expansion is necessary.

For instance, VARA must expand its definition of a visual work of art. Movies and audiovisual productions can be mutated, just like a painting or any of the ‘approved’ forms of visual art. “Th[is] exemption was no accident. Before the enactment of the law, lobbies representing artists and producers [lobbied in D.C.] . . . [i]n the end, studios won the battle with the contention that ‘moral rights impeded the efficient exploitation of works of authorship and that this would discourage the investment in creation.’”[44] While the rights of attribution and integrity were implicitly granted in Gillian v. American Broadcasting Companies, Inc., there are still no codified rights for motion pictures (or music videos or songs, for that matter).[45] However, a unique threat to motion pictures and audiovisual materials exists now that did not exist in 1990 when VARA was written – deepfakes.

A deepfake is a new form of artificial intelligence (“AI”) created through a deep learning method called a “generative adversarial network” or “GAN” or through an AI encoder.[46] The GAN system creates realistic images of nonexistent people, which are then added into the ‘real’ video or image, while an AI encoder allows someone to swap an image from one source into another.[47] And there is plenty of evidence that deepfakes are here to stay. In January 2019, there were 7,964 deepfake videos online, and nine months later “that figure had jumped to 14,678.”[48]

This makes the expansion of VARA all the more critical because with the continual expansion of AI there is a huge quantity of authors who will not be allowed to raise claims under VARA if their work is manipulated or shown without their permission. Even without the threat of AI, many musical authors, such as Taylor Swift, have struggled to protect their works from being altered or produced without their consent.

Additionally, Congress should push for the three recommendations from the U.S. Copyright Office report, at a minimum, because those would at least clarify VARA and add some further protections to VARA. Finally, while “5Pointz” was a successful case, the limitations on who has standing to raise a VARA claim significantly limits the efficacy of VARA. Likewise, the success of “5Pointz” may convince lawmakers that VARA is fine as is, which could hinder VARA expansion.

IV. Conclusion

In light of the many changes brought by AI, and the stark contrasts between French and American law, the U.S. needs to adapt VARA. VARA was ratified two decades ago and the art world has changed in significant ways since the nineties. Additionally, the exclusion of motion pictures and audiovisual materials because of lobbyists shows that there was a question back in 1990 as to whether motion pictures and audiovisual materials were art forms. Now, Congress needs to see the other side of the argument and expand protections to all forms of artwork. The coming decade will raise new issues as technology continues to adapt, so technological growth should bring legal growth. It is time that Congress takes an in-depth look at VARA and expands the definition of works of visual art.  


[1] “Author” is a term of art specifically used in copyright statutes. It is a blanket term for artists, writers, etc. This term does not merely pertain to novelists or what might colloquially be called an “author.”

[2] Moral Rights in U.S. Copyright Law, Copyrightlaws.com (Jan. 10, 2020), https://www.copyrightlaws.com/moral-rights-in-u-s-copyright-law/.

[3] Peter Baldwin, The Copyright Wars 28 (Princeton Univ. Press 2014).

[4] Moral Rights, supra note 2.

[5] Id.

[6] Moral Rights, supra note 2.

[7] Baldwin, supra note 3, at 31.

[8] Id. at 32. Film directors have also used the name ‘Alan Smithee’ which was likely a moniker created by the Directors Guild of America; see also Alison Cooper, Who is Alan Smithee? HowStuffWorks.Com (Sept. 12, 2014), https://entertainment.howstuffworks.com/alan-smithee.htm.   

[9] Baldwin, supra note 3, at 32.

[10] Moral Rights, supra note 2.

[11] Baldwin, supra note 3, at 32.

[12] Id.

[13] Id. at 34.

[14] Moral Rights, Società Italiana degli Autori ed Editori  (2020), https://www.siae.it/en/diritto-dautore/moral-rights/moral-rights#:~:text=Right%20of%20repentance,for%20serious%20moral%20reasons%20(art.&text=This%20right%20shall%20also%20apply,works%20derived%20from%20the%20original.

[15] Patrick Masiyakurima, The Trouble with Moral Rights,68(3) Modern L. Rev. 411, 424 (2005); Baldwin, supra note 3, at 35.

[16] Baldwin, supra note 3, at 30; Calvin D. Peeler, From the Providence of Kings to Copyrighted Things (and French Moral Rights), 9(2) Ind. Int’l. & Com. L. Rev. 423, 427 (1999).

[17] Baldwin, supra note 3, at 30.

[18] Id.

[19] Id.

[20] Id.

[21] United States Copyright Office, Authors, Attribution, and Integrity: Examining Moral Rights in the United States  15 (2019).

[22] Baldwin, supra note 3, at 37.

[23] Id. at 39.

[24] Id. at 5.

[25] The Visual Artists Rights Act,17 U.S.C. §106A (1990); United States Copyright Office, supra note 21, at 7.

[26] Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212, 215 (E.D.N.Y. 2013).

[27] 17 U.S.C. §106A.

[28] Id.

[29] Copyright Definitions, 17 U.S.C. §101. (2010).

[30] Id.

[31] Id.

[32] Marley Nelson, Moral Rights in the United States, The Ohio State University Copyright Corner (July 21, 2017), https://library.osu.edu/site/copyright/2017/07/21/moral-rights-in-the-united-states/.

[33] Moral Rights, supra note 2.

[34] Id.

[35] United States Copyright Office, supra note 21, at 5.

[36] Id. at 6.

[37] Lise Berichel, Around the Block Ruling in 5Pointz, The Center for Art Law (Apr. 10, 2018), https://itsartlaw.org/2018/04/10/around-the-block-ruling-in-5pointz/.

[38] Id.

[39] Id.

[40] Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212, 421, 447 (E.D.N.Y. 2013).

[41] Lise Berichel, supra note 37.

[42] Calvin D. Peeler, supra note 16, at 452-453.

[43] Id. at 455.

[44] Julia Mas-Guindal, The Motion Picture Industry: Critical Issues Concerning Moral Rights and Authorship, Harv. J. L. & Tech. (Dec. 31, 2011), https://jolt.law.harvard.edu/digest/the-motion-picture-industry-critical-issues-concerning-moral-rights-and-authorship.

[45] Id.

[46] Rob Toews, Deepfakes Are Going to Wreak Havoc on Society. We are Not Prepared., Forbes (May 25, 2020), https://www.forbes.com/sites/robtoews/2020/05/25/deepfakes-are-going-to-wreak-havoc-on-society-we-are-not-prepared/#205025197494.

[47] Ian Sample, What are deepfakes – and how can you spot them?, The Guardian (Jan. 13, 2020), https://www.theguardian.com/technology/2020/jan/13/what-are-deepfakes-and-how-can-you-spot-them.

[48] Id.

Cookie Monster: Facebook Sued Under Wiretap Act

Photo by Kon Karampelas on Unsplash

Brianna Vollman, Blog Editor, University of Cincinnati Law Review

Facebook has occupied news headlines for years due to the site’s less-than-perfect protection of user privacy. As recently as a month ago, Facebook’s new “Messenger Rooms,” a video chat app, were criticized for lack of privacy protection.[1] Years before, in 2014, Cambridge Analytica, a British political consulting firm, acquired the data tens of thousands of Facebook users with intent to sell acquired data.[2] Privacy expert Rowenna Fielding went so far as to say, “Data mining and profiling are the core of their business model–governance and ethics have been notably absent from the start and continue to be so.”[3] The constant scrutiny prompted Facebook leaders to recently appoint a privacy committee to prevent misappropriation of user data.[4]

The mentioned privacy scandals and many others have landed Facebook in federal court. The most recent court decision impacting Facebook came from the Ninth Circuit in April 2020.[5] In a punitive class action, a group of Facebook users filed a consolidated complaint, alleging primarily a violation of the Wiretap Act.[6] The complaint alleged that Facebook “cookies,” small text files stored on the user’s device, continued to capture information even after a user logged out of Facebook and visited other websites.[7] Specifically, the lawsuit involved Facebook plugins that are embedded on third party websites and contain a small portion of Facebook code.[8] When a user visits a third party website, the user’s browser sends a “GET request” to the web page’s server, which then sends back the requested information to the user.[9] When the third party website contains a Facebook plugin, the code sends a separate but identical request to Facebook’s servers.[10] Facebook allegedly tracks users across the internet in this way, collecting the data into personal user profiles, which Facebook allegedly intended to sell.[11] The district court granted Facebook’s motion to dismiss.[12] The appeal followed.[13]

The Wiretap Act (“the Act”) prohibits the unauthorized “interception” of an “electronic communication.”[14] Case law has interpreted the meaning of “interception.”[15] The Ninth Circuit has held that an interception is an “acquisition contemporaneous with transmission.”[16] The statute contains an exemption for a person who is a “party” to the communication or the interception has been consented to, which is where the crux of the litigation lies for the Ninth Circuit and where an implied circuit split is revealed.[17] The Act does not solely apply to social media platforms but to any situation where a GET request is duplicated and contemporaneously sent to an entity other than the website being accessed by the user. The question faced by the Ninth Circuit is whether the entity other than the website being accessed is considered a “party” to the communication and is thus not liable due to the exemption contained in the Act. The First, Seventh, and Third Circuit faced related questions previously.

The First Circuit implicitly dealt with the party exemption in 2003.[18] Pharmatrak, an enterprising company, sold a service to pharmaceutical companies that collected user information from the companies’ websites and created intra-industry comparisons of website traffic.[19] Buyers of the service were assured that no personal information would be collected in this process.[20] Despite this assurance, Pharmatrak collected personally identifiable information from some users, which prompted a class action to be filed under the Electronic Communications Privacy Act (an amendment to the Wiretap Act).[21] The lower court held that since the pharmaceutical companies were in a contractual relationship with Pharmatrak, they had consented to the collection of their personal data and thus was a party to the communication.[22] The First Circuit disagreed.[23] The court held that the information acquisition committed by Pharmatrak constituted an interception and “was contemporaneous with the transmission by the internet users to the pharmaceutical companies.”[24] For these reasons, the Ninth Circuit explained that the First Circuit implicitly rejected the argument that Pharmatrak was a party to the communication.[25]

The Seventh Circuit faced different facts but reached a similar conclusion.[26] The defendant was being accused of violating the Wiretap Act by using software that duplicated his employer’s emails and sent them to the defendant’s own email address.[27] The court focused on whether the duplicated emails were sent off contemporaneously to determine whether these actions constituted an interception.[28] The court determined that because the duplicate emails indeed were sent contemporaneously, the case was reversed and remanded.[29] For similar reasons to the First Circuit, the Ninth Circuit opinion in In re Facebook explained  that the Seventh Circuit does not believe the defendant was a party to the communication and did not receive protection of the enumerated exemption.[30]

The Third Circuit reached the opposite conclusion.[31] In In Re Google Cookie, the court determined that defendants, internet advertising companies, that placed cookie blockers on users’ browsers to facilitate online advertising were parties to the communication and thus were not liable under the Act.[32] This case dealt with duplicate GET requests being sent to advertising companies.[33] The court opined that because a communication necessarily has two parties, here the user’s browser and the defendants, the defendants were the intended recipients of the communication.[34] Thus, the case was vacated and remanded in part to the lower court. [35]

The Ninth Circuit followed the reasoning of the First and Seventh Circuits.[36] The courtexplained that the First and Seventh Circuit had “implicitly assumed that entities that surreptitiously duplicate transmissions between two parties are not parties to communications within the meaning of the Act.” [37] The Ninth Circuit further delved into the Wiretap Act’s legislative history, which “evidences Congress’s intent to prevent the acquisition of the contents of a message by an unauthorized third-party or ‘an unseen auditor.’”[38] The Ninth Circuit summarized in stating, “Permitting an entity to engage in the unauthorized duplication and forwarding of unknowing users’ information would render permissible the most common methods of intrusion, allowing the exception to swallow the rule.”[39] The case was remanded for further consideration.[40]

The First, Seventh and Ninth Circuits properly held that sending a duplicate GET request to an unseen entity is an interception under the Wiretap Act. To hold any differently would allow sites like Facebook to invisibly track their users around the internet. The Ninth Circuit properly explained that the party exception does not apply in these sorts of electronic interception situations because the user and the third party website are communicating with one another, while the third party merely receives a contemporaneous duplication of that communication.[41] This holding is consistent with the legislative purpose of the Wiretap Act and would further protect internet users from being tracked across the web. This holding is also consistent with the First and Seventh Circuit’s related cases, which although didn’t explicitly focus on the party exemption, still made clear that contemporaneous communication to an unauthorized third party is an interception in violation of federal law.  

In re Facebook has been remanded for further consideration by the district court, but the circuit split remains. Facebook’s privacy scandals are ongoing, which may gain the attention of the Supreme Court. Should the Supreme Court take a case involving liability under the Wiretap Act for tracking site users across the internet, the resolution of the circuit split will have major implications for Facebook, as it has profited from sharing data collected from tracking.[42] The Supreme Court should follow the decisions of the First, Seventh, and Ninth Circuit, which would appropriately hold Facebook accountable for tracking its users across the web.


[1] Kate O’Flaherty, Facebook Users Beware: Here’s Why Messenger Rooms Is Not Actually That Private, Forbes (Apr. 26, 2020, 3:50 AM), https://www.forbes.com/sites/kateoflahertyuk/2020/04/26/facebooks-messenger-rooms-is-not-actually-all-that-private-heres-why/#78020c5bb098

[2] Nicholas Confessore, Cambridge Analytica and Facebook: The Scandal and the Fallout So Far, New York Times, (March 17, 2020), https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html

[3] Id.

[4] Rob Price,  Facebook has appointed the ‘privacy committee’ on its board designed to prevent another Cambridge Analytica scandal, Business Insider, (May 13, 2020 8:06 PM), https://www.businessinsider.com/facebook-announces-privacy-committee-board-of-directors-2020-5.

[5] In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 601 (9th Cir. 2020).

[6] 18 U.S.C. § 2511 (West); In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 601 (9th Cir. 2020).

[7] In re Facebook, 956 F.3d at 596.

[8] Id. at 607.

[9] Id.

[10] Id.

[11] Id. at 599.

[12] Id. at 597.

[13] Id.

[14] 18 U.S.C. § 2511(1)(a)–(e) (2020).

[15] While case law interprets the meaning of “interception,” the term “electronic communication” is defined in 18 U.S.C. § 2510(12) (2020), and takes on a plain meaning of “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.”

[16] Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002).

[17] 18 U.S.C. § 2511(2)(c)-(d) (2020). The statute reads: “It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”

[18] In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir. 2003).

[19] Id. at 12.

[20] Id. at 15.

[21] Id. at 16.

[22] Id. at 17. Arguing that the plaintiff consented to the communication is another way to avoid liability under the Wiretap Act. See 18 U.S.C. § 2511(2)(c)-(d) (2020).

[23] Id. at 22.

[24] Id.

[25] In re Facebook, 956 F.3d at 607.

[26] United States v. Szymuszkiewicz, 622 F.3d 701 (7th Cir. 2010).

[27] Id. at 703.

[28] Id. at 706.

[29] Id.

[30] In re Facebook, 956 F.3d at 607.

[31] In re Google Inc. Cookie Placement Consumer Priv. Litig., 806 F.3d 125, 142-43 (3d Cir. 2015)

[32] Id. at 132, 142-43.

[33] Id. at 130-31.

[34] Id. at 142-43.

[35] Id.

[36] In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 608 (9th Cir. 2020).

[37] Id. at 607.

[38] Id. at 608; See S. Rep. No. 90-1097.

[39] In re Facebook, 956 F.3d at 608.

[40] Id. at 611.

[41] Id. at 607.

[42] Gabriel J.X. Dance, Michael LaForgia and Nicholas Confessore, As Facebook Raised a Privacy Wall, It Carved an Opening for Tech Giants, New York Times, (Dec. 18, 2018) https://www.nytimes.com/2018/12/18/technology/facebook-privacy.html.

The Long Game: Justice Kagan’s Approach in Ramos v. Louisiana

Photo by Anne Sullivan on Unsplash

Sam Berten, Associate Member, University of Cincinnati Law Review

I. Introduction

Justices on the Supreme Court are protectors of precedent, and experts in the law. However, Justices are also strategic in their decisions and opinions because they are aware of the effect one decision can have on other decisions, and the importance of integrity.

In Ramos v. Louisiana, the Supreme Court held that the Sixth Amendment requires that a jury find a criminal defendant guilty by a unanimous verdict.[1] Justice Kagan dissented in Ramos, which at first could be confusing because Kagan’s liberal colleagues largely agreed with the majority opinion written by Justice Gorsuch. However, a more detailed analysis of Justice Kagan’s history on the Supreme Court shows that Ramos is the next in a line of key cases wherein Justice Kagan has solidified her position as a protector of precedent on the Court. Justice Kagan is likely keenly focused on reiterating the importance of precedent to protect Roe v. Wade, affirmative action, and other key decisions, which may explain Kagan’s dissent in Ramos.

II. Background

In 1972, the Court in a plurality decision found in Apodaca v. Oregon that the “Sixth Amendment does not require unanimous jury verdicts in state criminal convictions.”[2] Four Justices dissented in Apodaca – Stewart, Brennan, Marshall, and Douglas – believing that the Sixth Amendment guaranteed unanimity as one of the core rights of a jury trial.[3] On the other hand, in the plurality opinion, Justices White, Burger, Blackmun, and Rehnquist held that the Sixth Amendment did not guarantee unanimity.[4] Justice Powell concurred with the plurality but separately found that “the Sixth Amendment does require a unanimous verdict in criminal cases, but only in federal court.”[5]

Despite the confusion on the guarantees of the Sixth Amendment, Apodaca remained good law for almost fifty years.[6] Only two states, Louisiana and Oregon, allowed convictions by non-unanimous verdicts, but both states have expressed a change of tactic.[7] Louisiana has since abolished non-unanimous verdicts and “Oregon . . . was considering doing the same until the Supreme Court took up the case.”[8]

On April 20, 2020, the Supreme Court decided Ramos v. Louisiana, and resolved the remaining issue after Apodaca of whether the Sixth Amendment requires a unanimous jury verdict for a criminal conviction for a serious crime.[9] The Court held, in a fractured opinion, that the Sixth Amendment requires a unanimous jury verdict to convict a defendant of a serious offense.[10]

Justice Gorsuch wrote the principal opinion, which Justices Breyer and Ginsburg joined with respect to Parts II-B, IV-A, IV-B-2, and V.[11] Justices Sotomayor and Kavanaugh “joined most of Gorsuch’s opinion but rejected some key aspects of it.”[12] Meanwhile, Justice Thomas concurred but declined to join any of Gorsuch’s opinion.[13] Finally, Justice Alito wrote a dissenting opinion which Chief Justice Roberts joined and Justice Kagan joined except for Part III-D.[14] All in all, the Court issued five opinions on Ramos, but the principal opinion and the dissent will be the focus of this article.

Justice Gorsuch wrote that trial by an impartial jury, no matter where you look to determine the phrase’s meaning – “whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward,”[15]  – the answer was the same: “[a] jury must reach a unanimous verdict in order to convict.”[16] When the Sixth Amendment was ratified, the common law required jury unanimity in criminal cases, continuing that practice for close to 400 years with only a few exceptions.[17] Gorsuch explained the absence of explicit unanimity in the Sixth Amendment by stating that the right of unanimity was “so plainly included in the promise of a ‘trial by an impartial jury’ that the [Framers] considered the language surplusage.”[18]

Justice Gorsuch then in Part IV-A argued that Apodaca was never binding precedent because Justice Powell agreed that the Sixth Amendment required unanimity but only in federal court, which a majority of the court rejected.[19] Justice Gorsuch claimed that accepting Justice Powell’s reasoning and Apodaca as precedential would lead to the conclusion that “a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.”[20] Justices Ginsburg and Breyer agreed with this portion of Justice Gorsuch’s reasoning while Justices Sotomayor and Kavanaugh did not.

The Court has established several factors when analyzing precedent: “(1) the quality of the decisions’ reasoning; (2) its consistency with related decisions; (3) legal developments since the decision; and (4) reliance on the decision.”[21] Applying these four factors to Apodaca, all five Justices in the majority opinion concluded that Apodaca was not binding precedent.[22]

The dissent, written by Justice Alito, and joined by Chief Justice Roberts and Justice Kagan (except for part III-D), stressed the importance of reliance interests which required adherence to Apodaca.[23] Justice Alito then discussed the myriad of issues that might arise with respect to retrying criminal defendants, habeas petitions, and the fact that the Court repeatedly denied cert for petitions brought by inmates in Louisiana and Oregon, which made Louisiana and Oregon conclude that they were not acting improperly by allowing non-unanimous verdicts.[24]

III. Analysis

Justice Elena Kagan was nominated by President Obama in May, 2010, and was confirmed by the Senate in August, 2010.[25] Because of Justice Kagan’s liberal leanings, Kagan’s choice to dissent from a majority opinion focusing on justice within the criminal justice system may seem strange at first. In fact, many were “disappointed, baffled, angry, skeptical, and saddened.”[26] However, Kagan has likely positioned herself as a protector of precedent as part of a strategic, long-term approach to protect Roe v. Wade.[27] And precedent is what Ramos is truly about, “when to honor it, when to discard it and how to shape public perceptions of doing the latter.”[28]

On June 22, 2015, Kagan wrote the majority opinion in Kimble v. Marvel Entertainment, LLC, which was a patent dispute. Kagan wrote that “[w]hat we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly.”[29] Kagan then quoted Spider-Man, stating, “(‘[i]n this world, with great power there must also come – great responsibility’). Finding many reasons for staying the stare decisis course and no ‘special justification’ for departing from it, we decline Kimble’s invitation to overrule Brulotte.”[30]

On June 21, 2019, Kagan wrote in her dissent to Knick v. Township of Scott, Pennsylvania, et al., that Knick “smashe[d] a hundred-plus years of legal rulings to smithereens.”[31] Knick was a case about a property owner fighting the government in a constitutional “takings” claim.[32] However, Kagan was likely not focusing just on the issues at hand in Knick. Kagan indicated worry that the “conservative majority may be similarly dismissive of precedent in other areas. Those areas could include access to abortion, affirmative action and LGBT[sic] rights – all issues making their way up to the high court.”[33]

Thus, Justice Kagan’s dissent in Ramos is likely a reiteration of Kagan’s position as “the Court’s leading proponent of respect for precedent.”[34] Since “Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Elena Kagan — dissented [in Ramos], not necessarily because they thought the Constitution permits non-unanimous juries but because they thought the 1972 case should not be so lightly overruled.”[35] Justice Kagan is likely preparing for the day when a case reaches the Court that challenges Roe v. Wade. Indeed, “[f]or Kagan, who clearly sees the writing on the wall not just for Roe but for other rulings as well, the importance of adhering to precedent has been a continuing theme. The more she can get conservative colleagues on the record resisting overturning cases, and the more she demonstrates her own willingness to stick with cases she dislikes, the stronger her hand down the road.”[36]

Therefore, Kagan’s choice to consistently be the resounding voice of respect for precedent may allow Kagan, down the line, to insist her fellow justices respect the precedent established in Roe. “She is playing the long game in two related ways: establishing herself as the court’s fiercest defender of precedent and sacrificing ideological purity in favor of compromise with her conservative colleagues. But that is no guarantee that she will prevail, or that any of her compromises will actually pay off.”[37]

Thus, Justice Kagan is likely trying to build a record to encourage her conservative colleagues to respect precedent down the road when it is time to decide on an abortion issue. And sooner rather than later, we will know if Kagan’s strategy succeeded. On March 4, 2020, the Court heard oral arguments for June Medical Services LLC v. Russo, which asks whether Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with Whole Woman’s Health v. Hellerstedt, which is binding precedent.[38]

If Justice Kagan’s approach wins the day, her protection of precedent during her tenure on the Court will encourage her conservative colleagues to adhere to the binding precedent established in Roe and Whole Woman’s Health. Thus, Ramos was likely yet another example of Justice Kagan reiterating the importance of precedent, while keenly aware of the threat to Roe and other key decisions if the Court turns away from stare decisis.  

IV. Conclusion

It is surprising to see a liberal justice dissenting from a case protecting the rights of criminals and dissenting away from her fellow liberal justices. Thus, Justice Kagan’s dissent in Ramos may be initially confusing. However, understanding Justice Kagan’s perspective and position on the Court allows a deeper analysis of Kagan’s alliance with Justice Alito in Ramos. For Justice Kagan, Ramos is likely another opportunity to highlight to the Court the importance of precedent, and to signal to her conservative colleagues that she is able to join an opinion that diverts from that of the liberal Justices in order to protect precedent.

Justice Kagan is approaching this case, and likely all the cases that appear before the Court, with a keen eye for stare decisis and precedent in order to later use those cases to demonstrate to the conservative justices on the Court that cases such as Roe cannot be overturned lightly. June Medical Services LLC v. Russo will presumably be a key case that will likely show whether Justice Kagan’s approach over her tenure has paid off, and whether her stead as protector of precedent can convince other justices to be similarly concerned.  


[1] “So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.” Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020).

[2] Tadhg A.J. Dooley & David Roth, Supreme Court Update: Ramos v. Louisiana (No. 18-5924), Atlantic Richfield v. Christian (No. 17-1498), Thryv, Inc. v. Click-to-Call Technologies (No. 18-916), The National Law Review (Apr. 27, 2020), https://www.natlawreview.com/article/supreme-court-update-ramos-v-louisiana-no-18-5924-atlantic-richfield-v-christian-no.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.; Ramos v. Louisiana, 140 S. Ct. 1390, 1393 (2020).

[12] Dooley & Roth, supra note 2.  

[13] Id.

[14] Id.; Ramos, 140 S. Ct. at 1393.

[15] Id. at 1395.

[16] Dooley & Roth, supra note 2.; Ramos, 140 S. Ct. at 1395.

[17] Dooley & Roth, supra note 2: “a common-law requirement of jury unanimity in criminal cases had existed (with a few sporadic interruptions) for about 400 years.”

[18] Dooley & Roth, supra note 2.; Ramos, 140 S. Ct. at 1400.

[19] Dooley & Roth, supra note 2; Ramos, 140 S. Ct. at 1402.

[20] Id.

[21] Dooley & Roth, supra note 2; Ramos, 140 S. Ct. at 1405.

[22] Id.

[23] Id.

[24] Id.

[25] CNN, Elena Kagan Fast Facts, CNN (Apr. 22, 2020), https://www.cnn.com/2013/02/19/us/elena-kagan-fast-facts/index.html.

[26] Mark Joseph Stein, Everyone is Mad at Elena Kagan, The Slate (Apr. 22, 2020), https://slate.com/news-and-politics/2020/04/elena-kagan-supreme-court-conservatives-precedent.html.

[27] Richard Wolf, Casting aside its precedents, Supreme Court moves inexorably toward those on abortion rights, USA Today (Apr. 27, 2020), https://www.usatoday.com/story/news/politics/2020/04/24/abortion-supreme-court-precedent-roe-v-wade/3002575001/.

[28] Linda Greenhouse, A Precedent Overturned Reveals a Supreme Court in Crisis, The New York Times (Apr. 23, 2020), https://www.nytimes.com/2020/04/23/opinion/supreme-court-precedent.html.

[29] Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2415 (2015).

[30] Id.

[31] Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2183 (2019).

[32] Ariane de Vogue, Elena Kagan becomes latest liberal justice to sound alarm on precedent, CNN (Jun. 21, 2019), https://www.cnn.com/2019/06/21/politics/kagan-supreme-court-precedent-warning/index.html.

[33] Id.

[34] The Supreme Court Rules from Home, Michael Davis Barbaro & Adam Davis Liptak, The Daily, The New York Times (M.J. Davis Lin & Lisa Davis Chow eds., Apr. 21, 2020), https://www.nytimes.com/2020/04/21/podcasts/the-daily/supreme-court-coronavirus.html.

[35] Ruth Marcus, Why a case about jury verdicts could spell trouble for Roe v. Wade, The Washington Post (Apr. 24, 2020), https://www.washingtonpost.com/opinions/why-a-case-about-jury-verdicts-could-spell-trouble-for-roe-v-wade/2020/04/24/2a3e2072-8660-11ea-878a-86477a724bdb_story.html. [emphasis added].

[36] Id.; additionally, “it is impossible to read Kavanaugh’s concurrence without trying to discern what it foretells about his approach to Roe, and, if you support abortion rights, without apprehension. Kavanaugh pointedly noted that ‘in just the last few terms, every current member of this court has voted to overrule multiple constitutional precedents.’ Indeed, he added, ‘some of the court’s most notable and consequential decisions have entailed overruling precedent,’ citing 30 cases to prove the point. Kavanaugh then sketched out a three-part approach to deciding when a case should be overruled: First, ‘is the prior decision not just wrong, but grievously or egregiously wrong,’ including ‘the quality of the precedent’s reasoning.’ Second, ‘has the prior decision caused significant negative jurisprudential or real-world consequences,’ including ‘real-world effects on the citizenry.’ Third, ‘would overruling the prior decision unduly upset reliance interests’— how much people have based their arrangements on it and how long it has been in place. It is not hard to imagine that Kavanaugh, if called on to weigh the future of Roe, would find the first two criteria — egregiously wrong and causing significant negative consequences — easily satisfied. Must all three be present for a case to be overruled? On that he is not clear.”

[37] Stein, supra note 26; additionally, “[i]t is notable, though, that Kagan’s vote was not decisive in any of these decisions. In most cases, Kagan simply assented to precedent that, whatever its merits, is now firmly entrenched in the law.”

[38] June Medical Services LLC v. Russo, Oyez, https://www.oyez.org/cases/2019/18-1323 (last visited May 25, 2020).

COVID-19 and Its Effect on Prisons

Photo by Emiliano Bar on Unsplash

Katie Basalla, Associate Member, University of Cincinnati Law Review

I. Introduction  

One of the main critiques of the United States’ criminal justice system over the past few decades has been mass incarceration.[1] With a rate of 698 incarcerated per 100,000 residents, the U.S. prison system has more inmates per capita than any other nation.[2] There are many issues that derive from the negative effects of having a system that incarcerates so many individuals, such as the violation of Civil Rights and the disproportionate impact on racial minorities.[3] These issues have been exacerbated by the outbreak of COVID-19, a pandemic that has forced the world to social distance. Being confined in state custody makes it almost impossible to follow the social distancing guidelines.  

At the start of 2020, there were 2.3 million people confined in prisons and jails in the United States.[4] When COVID-19 hit the country in early 2020, massive spread of the virus within prisons and jails was inevitable. During the week of March 26, 2020, there were 57 new cases reported from the federal and state prison systems; a month later that number jumped to 6,664 cases.[5] While the spike is in part due to the increased availability of testing, it also highlights how quickly a virus can spread in the conditions created in prison.[6] This mass spread has been particularly troublesome when looking at the number of prisoners detained for nonviolent crimes and those in jail awaiting trial who have not yet been convicted. If the U.S. addressed mass incarceration by implementing alternative punishments to criminals that pose little to no threat to society, such as community service or rehab, the number of individuals behind bars would be significantly lower. This would have allowed prisons to manage those incarcerated in a more effective and safe manner during a crisis such as COVID-19.

II. Breakdown of the US Criminal Justice System

The U.S. has continuously been criticized for its punishment of nonviolent crimes.[7] Most notably, the country has received backlash for its “War on Drugs.”[8] Although not the only cause of mass incarceration, the crackdown on nonviolent drug-related activity has been a contributing factor to the overcrowded prisons and jails in the U.S. The treatment of nonviolent crimes is particularly problematic when looking at the disparate impact it has on racial minorities.

Of the 2.3 million people confined in prisons and jails, 631,000 people are in local jails, 1,291,000 are in state prisons, and 226,000 are in federal jails and prisons.[9] Roughly 55% of the people incarcerated in state prisons have been convicted of violent crimes, and the remaining 45% are in for nonviolent crimes, such as theft, drugs, and public order violations.[10] In local jails, roughly 75% of people are awaiting trial.[11] Of those 75%, only 32% are awaiting trial for violent crimes.[12] In other words, a little more than half the people in local jails are there because they are merely suspected of committing a nonviolent crime.

When broken down by race and ethnicity, it is clear that the U.S. prison system disproportionality affects racial minorities. The racial breakdown in prisons, although improving in recent years, “continues to look substantially different from the demographics of the country as a whole.”[13] As of 2017, the U.S. adult population was made up of 64% white people, 12% black people, and 16% Hispanic people.[14] However, only 30% of the incarcerated population was represented by white people, while black and Hispanic people made up 33% and 23% of the incarcerated population, respectively.[15]

III. Changes Being Made Because of COVID-19

The outbreak of the COVID-19 virus has drawn a great deal of attention to the overcrowded and unsanitary conditions of U.S. prisons and jails.[16] The effort to reduce the incarcerated population has been centered around releasing individuals serving time for nonviolent crimes. The focus on reducing the incarcerated population by releasing nonviolent criminals has drawn a sharp divide between violent and nonviolent crimes.

Nonviolent offenders that have served most of their sentences have been released early. Ohio Governor DeWine explained that the state was not releasing “anyone who is dangerous … [like] sex offenders, for example.”[17] In Ohio, the focus was on people “who might be getting close to release and who [are] in for a minor offense.”[18] In Washington, Governor Inslee ordered the release of nearly 1,000 inmates to slow the spread of the virus, focusing on individuals who were at high risk of health complications due to the virus, who were scheduled to get out soon, and who were nonviolent offenders.[19]

Similarly, bond requirements have changed for those accused of nonviolent crimes. In California, the Judicial Council has begun to set bail at zero for “most misdemeanor and lower-level felonies in an attempt to limit the spread of the coronavirus in jails statewide.”[20] In Texas, as demands for release of people in jails increased, the Texas Governor Abbott signed an executive order that prevented the release of a person arrested for a crime “that involved or threatened physical violence” without a monetary bond.[21] In a Tweet, Abbott explained the reasoning by stating he “want[s] to prevent the spread of #COVID19 among prison staff & inmates. But, releasing dangerous criminals in the streets is not the solution.”[22]

IV. Changes to Make Post-COVID-19

The response to the COVID-19 issue in prisons and jails has highlighted a sharp contrast between violent and nonviolent crimes in the U.S. When the racial and social implications of mass incarceration are added into the mix, it shows that a disproportionate amount of minorities are affected by mass incarceration. In the context of COVID-19, this literally becomes a matter of life or death. In summary: a disproportionate amount of minorities are being put in a potentially deadly situation, many for committing or being suspected of committing nonviolent crimes. That is a broken system.

When presented with an issue of life or death during the COVID-19 outbreak, many nonviolent criminals were released from custody. This proves that many people are incarcerated in the U.S. that do not need to be. When faced with a life or death situation, state officials have asked themselves if the person in question needs to be in state custody – yes or no? In the years post COVID-19, the criminal justice system should continue to evaluate sentencing in this manner. If the answer to the above question is no, the individual does not need to be in state custody, plenty of alternative punishments exist. Individuals can do community service, go to a rehabilitation center, or even be on house arrest. Mass incarceration has been an issue in the U.S. for many years. When the dust settles after this outbreak, may it shed light on ways to fix this broken system.


[1] See Carl Takei, From Mass Incarceration to Mass Control, And Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare, 20 U. Pa. J.L. & Soc. Change 125 (2017).

[2] Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html?c=pie&gclid=CjwKCAjwv4_1BRAhEiwAtMDLsnLI-MO1YnpmZc_XI-DzPTqlDgu2vvxGzRaLUbbaVOAZDk-XNR81oRoC39cQAvD_BwE. 

[3] See e.g. James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U.L. Rev. 21 (2012); Joseph E. Kennedy, The Jena Six, Mass Incarceration, and the Renormalization of Civil Rights, 44 Harv. C.R.-C.L. L. Rev. 477(2009).

[4] Sawyer and Wagner, supra note 2.  

[5] Katie Park, Tom Meagher, and Weihua Li, Tracking the Spread of Coronavirus in Prisons, The Marshall Project (Apr. 24, 2020), https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-in-prisons.

[6] For an example of how bad conditions currently are in some prisons, see Josiah Bates, Ohio Began Mass Testing Incarcerate People for COVID-19. The Results Paint a Bleak Picture for the U.S. Prison System, Time (Apr. 22, 2020),

[7] See Bidish J. Sarma and Sophie Cull, The Emerging Eight Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses, 66 Case W. Res. 525(2015).

[8] See Takei, supra note 1, at 131. “One highly influential theoretical framework for explaining and critiquing mass incarceration is Michelle Alexander’s 2010 book, The New Jim Crow, positing that the War on Drugs converted the criminal justice system into a new form of racialized social control.” Id.

[9] Sawyer and Wagner, supra note 2.  

[10]  Id.

[11] Id.

[12] Id.

[13] John Gramlich, The gap between the number of blacks and whites in prison is shrinking, Pew Research Center (Apr. 30, 2019), https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/.

[14] Id.

[15]Id.

[16] See e.g. Jesse Jackson, Let Prisoners Go During COVID-19 Pandemic, CounterPunch (Apr. 29, 2020), https://www.counterpunch.org/2020/04/29/let-prisoners-go-during-covid-19-pandemic/.

[17] Mike DeWine (@GovMikeDeWine), Twitter (Apr. 6, 2020, 2:28 PM).

[18] Id.  

[19]Alfred Charles, State to release nearly 1,000 nonviolent prison inmates early to limit COVID-19 spread, KomoNews (Apr. 13, 2020), https://komonews.com/news/local/state-to-release-nearly-1000-inmates-early-to-limit-coronavirus-spread.

[20] CA sets zero bail for most misdemeanor, low-level felonies to limit COVID-19 spread in jails, ABC7 (Apr. 7, 2020), https://abc7.com/california-jail-system-judicial-council-coronavirus-covid-19-in-jails/6083805/.

[21]Frank Heinz, Abbott’s Executive Order Blocks Release of Violent Inmates on No-Cost Bonds, NBCDFW (Mar. 30, 2020), https://www.nbcdfw.com/news/coronavirus/abbotts-executive-order-blocks-release-of-violent-inmates-on-no-cost-bonds/2341921/.

[22] Id.

Year End Message From Our Editor in Chief

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To the Members, Advisors, Readers, and Friends of the University of Cincinnati Law Review:

Suffice it to say, it’s truly unfortunate that we do not get to celebrate the accomplishments of the 2019-2020 University of Cincinnati Law Review in person. Despite the circumstances, the editorial and associate members have continued to meet their deadlines, and our journal and blog publication schedule has continued uninterrupted. This is a tremendous accomplishment, and something for which I will be forever grateful to each current member, administrator, and alumni member who has contributed to this success.

I’d like to thank everyone for a fantastic year. The members of the 3L class—with graduation, job searches, bar exam uncertainty, remote learning, and the coronavirus—have continued to meet their deadlines with detailed editorial work on both journal articles and blogs. The 2L Associate Members have put forth an incredible effort and produced top-quality work. I hope that all Associate Members have enjoyed their first year on Law Review, and I look forward to seeing where they take it next year. I encourage everyone to read their work here on the University of Cincinnati Law Review Blog and in Volume 88, Issue 4 (forthcoming in May).

Thank you to Professor Betsy Malloy for serving another year as our faculty advisor and for being readily available as a sounding board for our ideas. And, thank you to Dean of Business Affairs Jim Crosset and Vicki Hayes for helping to manage the financial and administrative nuts and bolts that come with this journal. And, to our alumni, thank you for your continued support. We hope to be able to grow and develop continued relationships with alumni, and to hopefully have an event in person (as soon as safely possible).

This was another great year of progress for the Law Review. We’ve continued to modernize our article submission process, and are now online through all major article submission platforms. We have also maintained our remote editing process through the cloud, allowing for simultaneous editing of the same documents. This has allowed for increased efficiency and has been the most significant factor in maintaining our publication schedule during this crisis. Thanks to our blog leadership, we have sustained a consistent blog schedule and modernized the blog’s online platforms. We’ve also been fortunate to have complete buy-in to the organization at every level. Finally, we’ve been lucky to read, edit, and publish some interesting work over the past year. Volume 88 Issues 1 through 3 are already published (www.scholarship.law.uc.edu/uclr), and Issue 4 is due out in May.

In keeping with tradition, I would like to recognize three Associate Members for their contributions to the Law Review, one each for Traditional, Hybrid, and Blog Track membership. They are receiving these awards not only for the quality of their work, but because they have excelled through their entire 2L year on the Law Review. So, please join me in congratulating the following members:

Distinguished Associate Member on Traditional Track: Quinn Marker

Distinguished Associate Member on Blog Track: Blythe McGregor

Distinguished Associate Member on Hybrid Track: Corey Bushle

Additionally, the Associate Members select the best published 3L casenote and comment. Traditionally, these awards are announced at the Hooding Ceremony and Law Review Banquet, but given the circumstances I would like to recognize them in this space. Please join me in congratulating the following 3Ls:

Norbert Heinsheimer Essay Prize for Best Comment: Elijah Hack for The Marketplace of Twitter: Social Media and the Public Forum Doctrine.

William Worthington Prize for Best Casenote: Michael Soder for Local Right-to-Work Ordinances: Why Section 14(b) of the National Labor Relations Act Preempts Political Subdivisions from Regulating Union-Security Agreements.

Finally, the traditional end-of-year event is usually the time for the public “hand-off” of the journal from one board to the next. As strange as this is to do remotely, I’d like to introduce Corey Bushle as the Editor-in-Chief for Volume 89. Corey and team have had a great start to the spring article selection process and are ready to hit the ground running this summer. I speak for everyone in the 3L class when I say that I’m excited to see the direction that Corey and team take the Law Review over the next year.

With that, I’d like to thank everyone again for making this year a success, and I look forward to celebrating these accomplishments in person when it becomes safe to do so.

Sincerely,

Carson Miller
Editor-in-Chief
Volume 88
University of Cincinnati Law Review

Wrongful Convictions and False Confessions: Why an Innocent Person Might Actually Confess to a Crime

Photo by Bill Oxford on Unsplash

Katie Basalla, Associate Member, University of Cincinnati Law Review

I. Introduction

When someone confesses to a crime, especially a crime as serious as rape or murder, it may seem as if the case is closed. Why would someone confess to a horrendous act with such grave consequences if he did not actually do it? Shockingly, this happens more than one would think. The Innocence Project[1] indicated that 28% of its overturned wrongful convictions involve a false confession.[2] From an objective standpoint, it is reasonable to think that no rational person would confess to a crime he did not commit. However, a closer look at false confession cases reveals that certain factors and circumstances may lead an innocent person to confess.

The subjective factors relevant to false confession cases typically include the interrogation tactics used by the investigating officers. Many police officers across the country use deceptive interrogation techniques, such as the Reid Technique.[3] When put under intense pressures, an innocent project may confess to a crime. Studying interrogation tactics used in cases of false confessions can help to correct the errors in these tactics. Interrogation techniques should move away from the aggressive, deceptive nature of the Reid Technique, and move towards more reliable practices that focus on consistency and knowledge of the crime’s details.

II. Background

One of the most popular interrogation techniques in the United States is the Reid Technique.[4] This technique uses deceptive tactics and does not accept innocence as an answer.[5] The use of this technique in practice may pressure an innocent suspect to confess. This phenomenon can be seen by studying cases of false confessions. When studying the cases from a more subjective standpoint, it becomes clear that innocent people may confess under immense amounts of pressure. With this in mind, interrogation techniques should move away from intense, deceptive practices and towards more reliable practices that focus on consistency and knowledge of details.

A. The Reid Technique

The Reid Technique trains officers to get a confession from a suspect they believe is guilty, no matter the cost.[6]The nine-step process focuses on a presumption of guilt and uses deceptive tactics to achieve an admission of that guilt.[7] In the first step, the officer tells the suspect that he is absolutely certain of the suspect’s guilt.[8] The second step persuades the suspect into offering an excuse for committing the crime.[9] Steps three and four explain how the officer should reject the suspect’s denials or statements of innocence.[10]

Step five instructs the officer to keep the suspect psychologically engaged and step six teaches the officer how to keep the suspect from being passive.[11] Step seven is known as the alternative question, where the officer offers the suspect two characterizations of the crime.[12] If the suspect admits to the lesser reprehensible one, this can have the functional equivalent to an incriminating statement.[13] This is often where suspects will admit to the “better” alternative to stop the questioning.[14] Steps eight and nine obtain the legally sufficient confession.[15] Step eight instructs the officer to turn the oral confession into a “legally acceptable and substantiated confession that discloses the circumstances and details of the act.”[16] Step nine turns the oral confession into a written one.[17]

The notion that a confession equates to guilt is perpetuated by techniques like the Reid Technique. However, this notion is directly juxtaposed to the science and research regarding the matter. One of the main critiques of the Reid Technique is that it is “too powerful, i.e., [it] can break down the innocent as well as the guilty.”[18] This is because the purpose of the Reid Technique is to put a suspect in a situation where “confession appears to be the only means of escape.”[19] Although the Reid Technique is only performed on suspects that the officers first determined to be guilty after a Behavior Analysis Interview (BAI), officers are not always correct in this determination and this type of guilt determination has been seriously flawed by research.[20] Further, guilt is determined by a jury, not by a BAI. In fact, one of the most famous cases protecting suspects’ rights, Miranda v. Arizona, came about in a large aspect to protect suspects from the psychological coercion the Reid Technique is founded on.[21]

Of the 102 false confession cases the Innocence Project overturned with DNA evidence, that evidence led to the conviction of the true perpetrator 75% of the time.[22] What is more alarming is that these true perpetrators went on to commit “25 murders, 14 rapes, and 9 other violent crimes,”[23] all of which could have been avoided if they were caught the first time. These statistics highlight the weight DNA evidence should be given, even when the evidence seems to contradict a confession.

B. False Confession Cases

The flaws of the Reid Technique are most easily exhibited through case examples. One of the most famous false confession cases is the story of the Central Park Five. The story exhibits how the Reid Technique can be particularly troublesome when used against juveniles.[24]  While the publicity surrounding Central Park Five case positively draws attention to the matter, this Article seeks to tell less-known stores.

In 1989, Kevin Bailey and Corey Batchelor were both 19-years old when they were incarcerated for the murder of Lula Mae Woods.[25] Chicago police obtained a confession from the two that implemented them in the murder.[26] But 28 years later, evidence, mostly DNA evidence, exonerated the two.[27] Bailey walked free after serving 28 years for a crime he did not commit; Batchelor, after 15 years.[28] This is all because two were coerced into confessing. 

The interrogation lasted multiple hours and resorted to physical abuse to coerce the boys into confessing.[29] Batchelor was interrogated for more than 24 hours straight and ended up confessing after he was “choked, kicked and slammed against the wall by detectives.”[30] Bailey was interrogated for more than 12 hours and he confessed after a detective assaulted him and threatened him. When asked about the interrogations, Batchelor stated that it was “just the good cop, bad cop type of thing” and that he maintained his innocence until the interrogators threatened to kill him.[31] Then, he falsely confessed.[32] The confessions made by the teenagers were both inconsistent with each other and the details of the crime.[33] Nonetheless, these confessions alone convicted them to more than a decade behind bars.

Not every false confession goes to this extreme. Use of intense interrogation tactics can lead to false confessions even if they do not escalate to physical abuse. The story of Christopher Tapp illustrates how officers can use deceptive interrogation techniques to obtain a confession, even when the other physical evidence in a case may point elsewhere.

In 2017, Christopher Tapp was released from custody after serving 19 years for a rape and murder he confessed to, but did not commit.[34] Back in 1997, Tapp was originally interviewed when the police suspected his friend, Benjamin Hobbs, to have been involved in the crime.[35] Tapp originally stated that neither he nor his friends had anything to do with this crime.[36] However, the officers “falsely told Tapp that Hobbs had already placed Tapp at the crime scene, and that they could help Tapp if he cooperated.”[37] As the interviews went on, and the pressure by the officers increased, so did Tapp’s involvement in this case.[38] Tapp entered into an agreement with the prosecutors that if Tapp gave an honest account of the events, he would only be charged with aiding and abetting an aggravated battery.[39]

Officers then threw out the immunity agreement and attempted to pin this murder on Tapp, despite the fact that the DNA found at the crime scene did not match Tapp, Hobbs, or their third friend Sargis.[40] Before taking his fifth polygraph test, police told Tapp that he could get a lighter sentence if he explained that he acted in fear for this life (the alternate option of the Reid Technique).[41] During the polygraph, Tapp said that Hobbs murdered the victim, but he joined Hobbs in stabbing her, but only because Hobbs had threated to kill him.[42]

Tapp was charged with first-degree murder and rape. Hobbs was never charged with anything relating to this crime.[43] Although the interviews with Tapp were recorded, not all of them were presented at trial.[44] Specially, three of the seven recordings of Tapp’s polygraph videotapes that showed coercion and deception were not presented.[45] DNA testing of the semen found at the crime scene eventually linked a man named Brian Dripps to the crime.[46] Dripps eventually confessed to the crime and admitted that he acted alone and did not know Tapp.[47] Tapp’s conviction was fully vacated in 2019.[48]

C. Alternative Interrogation Techniques

As an attempt to limit the effect of false confessions, interrogations of felony suspects have become more routinely recorded and courts have allowed experts to testify about interrogations and confessions.[49] However, these fixes do not address the problems that lead to false confessions. Although the newest Reid Technique manual, published in 2011, addresses some of these growing concerns, the very heart of the Reid Technique facilities that notion that a confession equals guilt.[50] Rather than tweak the Reid Technique, interrogations should follow different techniques that focus on consistency and knowledge of details.

Alternative models of interrogations are out there, such as the PEACE model (Preparation and Planning; Engage and Explain; Account; Closure; and Evaluation) or the HIG model (High-Value Detainee Interrogation Group).[51] The PEACE model rejects the deceptive nature of the Reid Technique and relies on obtaining multiple stories from a suspect and finding the discrepancies.[52] The HIG technique is similar, but it focuses even more on the “cognitive load,” the notion that if a suspect is lying he will have more discrepancies in his story than a suspect who is telling the truth.[53] The heart of this type of interrogating is focused on asking open-ended questions and being an active listener.[54] The officers are trained to look for repetition of the suspect’s narrative and to only give information known to the officers with a “vague source and low specificity” as to open the door for the suspect to provide more details.[55]

These models focus on the officers building a rapport with the suspect and giving many opportunities for the suspect to give statements.[56] These techniques create an open dialogue and present the opportunity for officers to elicit multiple statements from a suspect and compare them to both each other and the objective facts of the case.[57] Research has shown that these types of interrogations are more effective at obtaining reliable confessions than the deceptive tactics used in Reid.[58]

III.  Moving away from Reid

The abuse in the Batchelor/Bailey case is an extreme example, but it highlights the extremes that interrogators may go to obtain a confession. While not every false confession goes to this extreme, it shows that path that the Reid Technique opens. Fear. Intimidation. Flex of power. These doors allow for officers to push a person to his breaking point. Tapp’s story shows how these techniques can even break down a person without signs of physical abuse. While it might be easy to say that you would never confess to a crime you did not commit, the purpose behind the Reid Technique is to break the suspect down from his original, reasonable mindset. After hours of interrogation, often without food or sleep, a once rational person might lose all sense of reason. With no sign of a light at the end of the tunnel, a beaten down person may feel no choice but to just say what the officers want to hear to end it all.

While this is a serious issue, it does not change the fact that many guilty people are still hesitant to confess to a crime and officers need to be able to solve crimes. On its face, the Reid Technique seems like a sensible way to achieve this goal. If a person is unwilling to confess to a horrendous crime, why not make them? Adhering to the philosophy that an innocent person would not do such a thing, the appeal of the Reid Technique makes sense. However, now that it is clear that under certain circumstances, such as the ones created by the Reid Technique, an innocent person might confess, a new approach must be sought.     

When available, DNA evidence should be given more weight than confessions. DNA evidence can be a direct link to a true perpetrator in a case, such as the Christopher Tapp case illustrates.[59] However, lack of DNA evidence does not mean that investigators are out of luck. Confessions can be reliable. But interrogators need to take affirmative steps to ensure the reliability of a confession. This can be done by moving away from intense investigation techniques, such as the Reid Technique, and towards techniques that focus on more reliable aspects. Interrogations should focus more on consistency and knowledge of the facts of the crime, as suggested by the HIG and the PEACE models.

IV. Conclusion

The ability of police officers to effectively conduct their jobs is crucial to the criminal justice process. The Reid Technique’s appeal, and the appeal of similar techniques, is clear to see. Following the logic of believing that only a guilty person would confess, it makes sense why putting immense amount of pressure on a person to confess would seem logical. However, as the cases of Batchelor/Bailey and Tap illustrate, innocent people do confess. This revelation undermines the reasoning behind techniques such as Reid. Thus, a new technique must be adopted.

Interrogation techniques such as the HIG or the PEACE models allow officers to obtain reliable confessions from suspects, while protecting against false confessions. Despite the rise of DNA evidence and expert testimony regarding wrongful confessions, humans still tend to believe that no innocent person would confess to a crime he did not commit. The hurdle of mitigating the effect of false confessions is too high. The focus should not be on the effects of a false confessions, but rather altering the process to stop creating false confessions to begin with.


[1] “The Innocence Project, founded in 1992 by Peter Neufeld and Barry Scheck at Cardozo School of Law (New York), exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice.” Innocence Project, https://www.innocenceproject.org/about/.

[2] DNA Exonerations in the United States, Innocence Project, https://www.innocenceproject.org/dna-exonerations-in-the-united-states/?gclid=CjwKCAjwp-X0BRAFEiwAheRui-SeMX2gmrrlD5643fS9OQh6Zae_FEkeiNNw7QCp_WhS1dPdTh2XiBoCBUEQAvD_BwE (last visited Apr. 18, 2020).

[3] See, Alan Hirsch, Going to the Source: The “New” Reid Method and False Confessions, 11 Ohio St. J. Crim. L. 803 (2014).

[4] Ariel Spierer, The Right to Remain a Child: The Impermissibility of the Reid Technique in Juvenile Interrogations, 92 N.Y.U.L. Rev. 1719, 1725 (2017).

[5] Id.

[6] Id. at 1720.

[7] Id. at 1727.

[8] Id. at 1728. 

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 1729.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Alan Hirsch, supra note 3 at 805.

[19] Id. at 806.  

[20] Spierer, supra note 4, at 1726-28.

[21] See Miranda v. Arizona, 384 U.S. 436, 457 (1966). “It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.” Id.

[22] DNA Exonerations in the United States, supra note 2.

[23] Id.

[24] For more information, see Ken Burns, The Central Park Five, PBS (Nov. 23, 2012), https://www.pbs.org/kenburns/the-central-park-five. On April 19th, 1989, Raymond Santana, Kevin Richardson, Antron McCray, Yusef Salaam, and Korey Wise were part of a group of around 25 teenagers that were causing trouble in Central Park. The cops picked up some of the boys for “unlawful assembly” and called their families to come get them from the precinct. The boys were about to be let go when the police discovered a female body in the park that had been brutally raped and beaten. They immediately targeted this group of boys, between the ages of 14 and 16, as responsible. After hours of intense interrogation, five of them falsely confessed and were charged for the rape and attempted murder of the jogger. They were never considered innocent until 13 years later when Matias Reyes was found to be the true perpetrator. Id.

[25] Kevin Bailey, Innocence Project, https://www.innocenceproject.org/cases/kevin-bailey/ (last visited Apr. 18, 2020).

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Megan Crepeau, Charges dropped in 1989 murder investigated by Chicago cops tied to Jon Burge, The Chicago Tribune (Jan. 30, 2018), https://www.chicagotribune.com/news/breaking/ct-met-murder-charges-dropped-jon-burge-20180129-story.html.

[32] Id.

[33] Id.

[34] Christopher Tapp, Innocence Project, https://www.innocenceproject.org/cases/christopher-tapp/ (last visited Apr. 18, 2020).

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Hirsch, supra note 18, at 803.

[50] Id. at 804-05.

[51]Mark Godsey, Blind Injustice 205 (University of California Press 2017).  

[52] Christopher Slobogin, Manipulation of Suspects and Unrecorded Questioning: After Fifty Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues, 97 B.U.L. Rev. 1157, 1162 (2014).

[53] Id. at 1163.

[54] HIG Interrogation and Best Practice Report, fbi, (Aug. 26, 2016) https://www.fbi.gov/file-repository/hig-report-august-2016.pdf/view.

[55] Id.

[56] Godsey, supra note 51.

[57] Id.

[58] Id.  

[59] Christopher Tapp, supra note 34.

State of Ohio v. Bryant: Clarifying When Ohio Law Does Not Require a Driver to Remain at the Scene of an Accident

Photo by Allie on Unsplash

Marcus Hughes, Associate Member, University of Cincinnati Law Review

I. INTRODUCTION

Seventy-seven percent of drivers have been in at least one accident.[1] The average driver will be involved in one accident about every eighteen years, or three or four vehicle accidents over the course of their lifetime.[2] Ohio law requires drivers involved in such accidents to immediately stop their vehicles and remain at the scene until they have given their name, address, and registered vehicle number to any person injured, the driver of any vehicle damaged, and the police officer at the scene.[3] And if an injured person is unable to comprehend and record the required information, drivers must notify the nearest police authority of the accident’s location and remain at the scene until a police officer arrives.[4] But, if a driver leaves the scene of an accident unaware that the police have been called to the scene in a situation where police notification is not mandatory, is the driver culpable for a failure to provide information to the responding officer? The Supreme Court of Ohio recently published an opinion that provides valuable guidance on this issue. This article surveys the lower court decisions in State v. Bryant, discusses the understanding subsequently provided by the Supreme Court of Ohio, and examines unfavorable policy implications that may result as a consequence of this understanding, along with the possible ways the legislature may mitigate them.    

II. State v. Bryant

The scope and applicability of the Ohio statute was at issue in State v. Bryant.[5] On the night of March 16, 2017, Michael Bryant was involved in a collision with a car driven by Elanor Everhardt.[6] Ms. Everhardt followed Mr. Bryant down the street until he pulled into a parking lot and both exited their vehicles.[7] Ms. Everhardt testified that Mr. Bryant was stumbling, smelled of alcohol, and was unaware that he had been in an accident.[8] Despite Mr. Bryant’s apparent intoxication, they spoke for about an hour, during which time Mr. Bryant gave Ms. Everhardt his full name and phone number and let her take a photograph of his state identification[9] and license plate.[10] Mr. Bryant asked Ms. Everhardt not to call the police because he did not have a driver’s license, had been drinking, was a drug dealer, and had drugs on him.[11] He offered her money to not call the police, which she refused.[12] Nevertheless, Ms. Everhardt did not call the police until she returned to her vehicle.[13] By the time Officer Weston Voss responded to the scene of the accident, Mr. Bryant had departed.[14] Officer Voss filed charges against Mr. Bryant for leaving the scene of an accident.[15]    

A. Trial Court Decision

The Hamilton County Municipal Court asked whether Mr. Bryant, by allowing Ms. Everhardt to take a picture of his license plate, properly provided his registered vehicle number as required by the Ohio statute.[16] Mr. Bryant maintained that a vehicle’s “registered number” is its license-plate number while the state disagreed and argued that the term refers to a separate “registration number”[17] assigned as part of the vehicle-registration process.[18] In the end, the trial court agreed with the State and concluded that Mr. Bryant left the scene of the accident in violation of the law because he failed to provide Ms. Everhardt with the registered number of his vehicle.[19]  

B. Appellate Court Decision

The First District Court of Appeals affirmed Mr. Bryant’s conviction for leaving the scene of the accident on alternative grounds.[20] Rather than addressing whether Mr. Bryant provided the registered number of his vehicle, the appellate court held that Mr. Bryant violated the statute by not providing the required identifying information to Officer Voss.”[21] The court reasoned that the statute requires the information be given not only to the other driver and any injured person, but also to “the police officer at the scene of the accident or collision.”[22] While recognizing that there is no general duty to call the police after every accident — for example, when the parties mutually agree not to call an officer to the scene — that was not what happened here.[23] Even though they spoke for an hour, Ms. Everhardt never told Mr. Bryant she was not going to call the police.[24] Under these specific facts, the court found that Mr. Bryant was required to give his information to Officer Voss when he arrived.[25] This reasoning suggests that if a driver leaves the scene of an accident without reaching a mutual agreement with the other driver not to call the police, then the driver is culpable for failing to provide information to the responding officer even if unaware that the officer has been called.

C. Supreme Court of Ohio Decision

The Supreme Court of Ohio reversed the judgments of the lower courts and vacated Bryant’s conviction for failure to provide information to the responding officer.[26] The court addressed both whether a registered vehicle number is the license-plate number associated with the vehicle and whether a driver is required to provide any information to a police officer when the driver leaves the scene without knowledge that the police have been alerted of the accident.[27]

1. An Operator’s Duty to Give Information to a Police Officer

The court first examined a driver’s duty to give information to the police officer at the scene of an accident.[28] It held that were the statute read to require an operator to wait for a police officer in all circumstances, there would be no reason to specify that an operator must wait for the police to arrive when an injured person was unresponsive.[29] The General Assembly could have imposed a general duty to report an accident to the police or to wait until the police arrive, but it chose not to.[30] Rather, the statute contemplates the possibility that a police officer will not always be called to the scene of a motor-vehicle accident.[31] And if there is no “police officer at the scene,” a driver does not violate the statute by departing without giving the information to an officer who arrives later.[32] It was enough that Mr. Bryant remained at the scene for a reasonable amount of time, provided the required information to Ms. Everhardt, and was unaware that Ms. Everhardt had called or was going to call the police.[33] Under this reasoning, if a driver leaves the scene of an accident without providing information to the responding officer, the driver is not liable for leaving the scene as long as the driver waited a reasonable amount of time and was unaware that the police had been called.

2. The Meaning of “Registered Number”

The court next examined the meaning of “registered number” under the statute.[34] It initially found “registered number” ambiguous but resolved the ambiguity by interpreting the provision alongside other Ohio statutes governing the registration and licensing of motor vehicles.[35] One statute requires motor vehicles be assigned a distinctive number when the owner first applies to register that vehicle.[36] Another requires the owner receive license plates showing “the distinctive number assigned to the motor vehicle.”[37] And a third requires the owner or operator of a motor vehicle to display on the front and rear of the vehicle “a license plate that bears the distinctive number and registration mark assigned to the motor vehicle.”[38] While those statutes do not use the term “registered number,” they established that a vehicle’s license-plate number is the distinctive number assigned to the vehicle upon registration.[39] That “distinctive number” is the only number that the statutes require to be assigned as part of the vehicle-registration process.[40] Because Mr. Bryant provided Ms. Everhardt with his complete name, address, and phone number and allowed her to photograph his state identification and license plate,[41] Ms. Everhardt possessed all the information Mr. Bryant was required to give.[42]

III. POLICY IMPLICATIONS

The court acknowledged the possibility that its interpretation of the statute might both incentivize an impaired operator to flee the scene of an accident before the police arrive and increase the risk of harm to the public.[43] If providing contact information to the other persons involved in the accident and remaining “unaware that the police have been or will be summoned” is all that is required before leaving the scene of an accident, drivers hoping to avoid the police might be encouraged to employ tactics designed to distract and delay.[44] If those tactics are successful, the driver will avoid liability under the statute, potentially avoid liability for any other crimes that may be discovered by the police, and expose the public to a driver who may be intoxicated or engaged in other illegal activities.[45] Still, the court found that in construing the statute, its duty was to give effect to the General Assembly’s intent as expressed in the language it enacted.[46] Objections to the policy implications of applying the statute as written were therefore properly addressed to the General Assembly and not to the courts.[47]

IV. CONCLUSION

Ohio law does not require drivers to remain at the scene of an accident if they are unaware that police have been or will be called as long as they provide their name, address, and license-plate number to the operators or owners of other involved vehicles and to any person injured in the accident. But drivers who know that police have been or will be notified are expected to wait a reasonable amount of time. And if an injured person is unresponsive, drivers must both notify the nearest police authority of the accident’s location and remain at the scene until a police officer arrives. Finally, although there are policy concerns raised by the court’s interpretation of the statute, the court finds those concerns to be within the purview of the General Assembly. Amending the statute to mandate both operators remain at the scene until each driver affirmatively waives any interest in calling the police may help mitigate the risk that impaired drivers who are criminally culpable will attempt to leave before the other driver can report the incident to the police. Such an amendment might also encourage discourse between drivers and facilitate better resolution when accidents occur. 


[1] Esurance, Fender Benders and Financial Bummers (Apr. 12, 2020), https://www.esurance.com/insights/car-accident-missteps-money-time?_ga=2.143060598.2106963404.1586559396-914241192.1586559396.

[2] Forbes, How Many Times Will You Crash Your Car? (Jan. 27, 2011), https://www.forbes.com/sites/moneybuilder/2011/07/27/how-many-times-will-you-crash-your-car/#55522bb94e62

[3] Ohio Rev. Code § 4549.02(A)(1). Drivers must also provide the name and address of the vehicle’s owner if different than the driver.

[4] Ohio Rev. Code § 4549.02(A)(2).

[5] State v. Bryant, Slip Opinion No. 2020-Ohio-1041 (Mar. 24, 2020).

[6] State v. Bryant, No. 2018-Ohio-3756, 2018 WL 4490919, at *1 (Sep. 19, 2018).

[7] Id.

[8] Bryant, Slip Op. at *1.

[9] A non-driver state identity card fulfills the same identification functions as the driver’s license, but does not permit the operation of a motor vehicle.

[10] Id.

[11] Id.

[12] Bryant, 2018 WL 4490919, at *1.

[13] Bryant, Slip Op. at *1.

[14] Id.

[15] Id.

[16] Bryant, 2018 WL 4490919, at *2.

[17] The State may have been referring to the Vehicle Identification Number (“VIN”). This number is assigned by the vehicle manufacturer and identifies the make, model, model year, as well as more detailed information such as engine type.

[18] Bryant, Slip Op. at *4.

[19] Id. at *1.

[20] Id.

[21] Id. (quoting R.C. 4549.02(A)(1)(c)).

[22] Bryant, 2018 WL 4490919, at *3.

[23] Id.

[24] Id.

[25] Id.

[26] State v. Bryant, Slip Opinion No. 2020-Ohio-1041, at *6 (Mar. 24, 2020).

[27] Id.

[28] Id. at *2.

[29] Id. at *3.

[30] Id.

[31] Id. at *4.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Ohio Rev. Code § 4503.19(A)(1).

[37] Ohio Rev. Code § 4503.19(A)(2)(a) and R.C. 4503.22.

[38] Ohio Rev. Code § 4503.21(A)(1).

[39] State v. Bryant, Slip Opinion No. 2020-Ohio-1041, at *5 (Mar. 24, 2020).

[40] Id. (“Bryant’s argument that ‘registered number’ means a vehicle’s license-plate number is [also] consistent with statements in Ohio Department of Public Safety, Digest of Ohio Motor Vehicle Laws, https://publicsafety.ohio.gov/links/hsy7607.pdf (accessed January 10, 2020) [https://perma.cc/S9A7-LN7X]. That publication instructs a motor-vehicle operator, in the event of a crash, to gather from other drivers names, addresses, dates of birth, license-plate numbers, and driver’s-license numbers. It does not mention ‘registered numbers,’ nor does it recommend the exchange of any numbers other than the license-plate numbers to identify vehicles involved in the crash.”). Compare with Vehicle Identification Numbers, which are assigned during the manufacturing process.

[41] Id. at *6.

[42] Id.

[43] Id. at *4.

[44] Id. at *10 (O’Connor, C.J., dissenting).

[45] Id. (O’Connor, C.J., dissenting).

[46] Id. at *4.

[47] Id.