Trick or Treater? The difficulties in treating physicians’ testimonies

Photo by National Cancer Institute on Unsplash

Patrick Mullinger, Associate Member, University of Cincinnati Law Review

I. Introduction         

The treating physician: one of the most important people in your life when you’re sick or injured, and one of the most difficult witnesses when determining what testimony is allowable in a court. In the federal courts, Fed. R. Civ. P. 26(a) governs witness testimonial. Typically, treating physicians are determined to be lay fact witnesses, and thus, their testimony is limited. However, during a trial, such testimony often extends past the permissible scope. The 2020 Amendments to Rule 26 make it even more imperative for attorneys to become familiar with the amendments.[1] In trial, it is extremely important for an attorney to acknowledge the true scope of their treating physician’s testimony and be diligent when addressing these kinds of situations.

This article will walk through various difficulties in the “treater v. expert” classification of a witness. Part II will analyze the procedural steps necessary when identifying a treating physician versus an expert witness in Fed. R. Civ. P. 26. Then, Part III will analyze case law in the Sixth Circuit showing the difficulty in identifying when a treating physician’s testimony extends past what is allowed. Part IV will focus on the importance of a court ensuring that a treating physician does not extend their testimony beyond the allowable scope under the Federal Rules of Civil Procedure.

II. Federal Rule of Civil Procedure 26 governs the necessary steps when identifying an expert witness

Identifying an expert witness requires several steps before their testimony is allowed at trial. The very first step in litigation is to disclose any individual who is likely to have discoverable information.[2] These initial disclosures are due 14 days after the parties have a Rule 26(f) conference,[3] now required under the recent Rule 26 amendments,[4] which is when expert witness are disclosed. Under Rule 26(a)(2)(A), a party must disclose the identity of any witness it may use at trial to present evidence under Fed. R. Evid. 702, 703, or 705 to the opposing party.[5] These witnesses, however, may have different disclosure requirements under Fed. R. Civ. P. 26 (B) or (C). To be disclosed as an expert witness retained specifically for litigation, the party disclosing the expert must submit a written report prepared and signed by the witness.[6] These reports must contain several elements which allow the expert to opine on the incident at hand.[7]

However, there is a wrinkle. Rule 26(a)(2)(C) was added in 2010 and explains that some expert witnesses do not need to provide written reports.[8] Instead, such witnesses must only state the subject matter they are expected to present as evidence and a summary of the facts and opinions to which they are expected to testify.[9] This rule aligns with the 1983 amendments to limit unduly expensive discovery requirements.[10] The rule governs witnesses who are not providing any expert testimony, as expert witnesses must comply with Rule 26(a)(2)(B). A treating physician would be classified as a witness who does not need to create an expert report.[11] While it may seem menial to differentiate between an expert witness and a treating physician, cases are often decided based on the testimony of one treating doctor giving opinions on issues that should be given by experts.

III. The scope of a treating physician’s testimony is unclear under Sixth Circuit case law.

As stated above, a treating physician is treated as a lay fact witness under the Federal Rules of Civil Procedure.[12] However, the rules neither offer any clarity on the situation where a treating physician is opining as an expert witness, nor do they address when a treating physician is retained or specifically employed as an expert witness.[13] Current case law in federal courts, as well as state courts, is murky at best and fails to establish a bright line rule. This leaves an immense amount of uncertainty around a procedural issue that may be dispositive of a case.

When determining if a treating physician opines beyond the scope of their allowable testimony, courts consider a variety of factors. In Fielden v. CSX Transp., Inc., 482 F.3d 866 (6th Cir. 2007)—a case decided before the Rule 26 amendments—the court weighed whether treating physicians are subject to Rule 26(a)(2)(B) and concluded that the plaintiff’s treating physician was not required to provide a report.[14] The factors applied in Fielden were whether: (1) the physician was retained to provide expert testimony; (2) the physician formed his or her opinions at the time of treatment or in anticipation of litigation; (3) the lack of a full expert report would implicate Rule 26’s purpose of avoiding surprise and unnecessary depositions; (4) any expert opinion on causation was formed during the course of treatment; and (5) the claimed physician will testify to issues beyond those ordinarily present in his or her medical training.[15] A treating physician’s testimony on causation is only allowable in certain circumstances, such as when the physician formed their testimony as part of the patients diagnosis and treatment based on the actual treatment of the patient and the records they reviewed up to and including their own treatment.[16] The court in Fielden noted that some other courts require a Rule 26(a)(2)(B) expert report if the testimony strays from the core of the physician’s treatment.[17]

However, the cases to which the Fielden court cites were all decided prior to the 2010 Amendment to Rule 26.[18] In Avendt v. Covidein, the Eastern District of Michigan stated that the Sixth Circuit has not decided on the disclosure requirements of treating physicians as expert witnesses in light of subsection (a)(2)(C).[19] In Avendt, the doctor was determined to be giving testimony based on his personal knowledge of and observations made during the course of Plaintiff’s treatment, and the doctor was not given any additional medical records outside the records made during the course of treatment.[20] The court thus allowed his testimony as an expert witness subject to Rule 26(a)(2)(C) for reasons that his testimony will not lead to any surprise testimony on this subject.[21]

On one hand, Sixth Circuit District Courts continue to apply the Fielden factors, while on the other hand, courts apply the plain language of Rule 26. In the Avendt opinion, the Eastern District of Michigan cited Tyler v. Pack Indem. Co., another decision within the Sixth Circuit, in which the other court noted that the Fielden factors are instructive of the scope of a physician’s testimony.[22] In Tyler, the Eastern District of Michigan applied a similar analysis as the Fielden court by looking at the scope, substance, and source of the intended testimony.[23] In contrast, other districts use the plain language of the Rule if testifying physicians are “specifically retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.”[24] In Wilson v. Hill, the Southern District of Ohio stated that the treating dentists testimony would necessarily qualify as one whose testimony would be subject to the disclosure requirements of Rule 26(a)(2)(C).[25]

The factors listed in Fielden seem to be the governing analysis used in Sixth Circuit opinions.[26] In Barnes v. CSXT Transp., Inc., No. 3:13-CV-00525-DJH, 2017 U.S. Dist. LEXIS 53650, 42 (W.D. Ky. 2017), the court applied the Fielden factors to determine the scope of the testimony.[27] Multiple doctors were allowed to testify because the doctor based their opinions on ordinary medical training and only considered their own notes of the plaintiff’s treatment.[28] Additionally, none of the conclusions made by the physicians were made after the treatment, and there was no indication of involvement of counsel.[29]

While it may seem like the Sixth Circuit grants a treating physician significant leeway to opine as an expert witness without a Rule 26(a)(2)(B) report, their testimony is extremely limited without an expert report, especially in negligence cases where a breach of an owed duty causes actual damages.[30] Causation is one of the most difficult elements to prove, and thus, the Sixth Circuit held that the causation element may not be opined on by a treating physician unless the causation was based on the facts observed personally within the scope of the Plaintiff’s treatment.[31]

IV. The Federal Rules of Civil Procedure and subsequent cases do not go far enough to limit a treating physician when opining on causation

One extremely important issue in civil cases surrounding physician testimony is the limitation of expert testimony solely to the scope of their treatment. A treating physician who opines on the causation elements of a traumatic injury may entirely alter the course of litigation, not to mention increase costs of the party defending against the treating physician’s statements. This is important because doctors carry extreme credibility in the eyes of the jury due to their position and title. Even if their testimony is struck from the record, the jury may still be biased, as a jury cannot “unhear” what has been said. In no way is this stating that a treating physician should not be able to testify, but courts must be vigilant in preventing a doctor from extending beyond the scope of their allowable testimony under the Federal Rules.

While the Federal Rules of Civil Procedure do take some steps toward limiting the testimony of a treating a physician, they do not go far enough. First and foremost, there is no mention of a fact witness with heightened knowledge regarding a specific field in Rule 26.[32] The only mention of this issue is found in the notes following the rule, which reference a treating physician expert.[33] Without a guiding light, the courts must make an educated guess as to what this means, which often may lead to unfair outcomes. A treating physician who extends their testimony beyond the scope of their treatment will also cause difficulty for opposing counsel to know exactly what the testimony would be. To rebut the treating physician’s testimony that extends into expert witness testimony would force opposing counsel to hire an expert just to refute something that should not have been admissible in the first place. Moving forward, this treating physician exemption may cause difficulty in litigation, as the rates for a rebutting expert witness may increase as the need for them skyrocket. Additionally, a treating physician’s testimony may be granted more authority by a jury than an expert witness, even when the expert is specialized in the field, while the treating physician provides just general medical knowledge. This may taint the jury’s view of the true value of a case, and thus take up extreme amounts of judicial time during an appeals process.

These unfair outcomes go manifestly against what the legal profession should stand for. Without a firm analysis to protect the parties in litigation, courts have no guidance on the allowable scope of a treating physician’s testimony. The “surprise testimony” referenced in the third factor of a Fielden analysis may be one of the most crucial to display the possible effects of allowing a treating physician to testify. Without access to how a treating physician came to their conclusion, nor the processes they took in their diagnostic reasoning, the opposing party will have no possible grounds to possibly strike using a Daubert or Frye standards.[34] If a party is unable to know what the testimony will be until a deposition, then they will not be able to bring these challenges, thus costing their clients’ money and the court time. Additionally, courts must be on guard for treating physicians extending their testimony into fields beyond the scope of their proper credentials.[35] If a court lets its guard down, the jury risks perversion through irrevocable bias.

A simple solution would be for the legislature to amend Rule 26(a)(2). This new rule could clear the issues surrounding the problems of a retained or specifically employed expert, as was the issue in Barnes and Amos.[36] The clarity of this issue is difficult to resolve, however, because courts have stated that the mere nonpayment or compensation is not dispositive of the issue of a specifically retained expert.[37] To say the least, determining a treating physician is about as clear as mud. A potential solution would be to explicitly state that a Rule 26(a)(2)(C) witness may not opine to any issues of causation, or to medical records not used in actual treatment, without first a Rule 26(a)(2)(B) report. Essentially, the proposed Rule will explicitly limit the testimony possible of a treating physician but will not force the treating physician to complete a report simply to present their reasoning for treatment.

Another possible recommendation would be to adopt the Fielden factors as an amendment to Rule 26(a)(2)(C). Using the factors would easily place a balancing test amongst Federal courts, and likely state courts would adopt the rule to line up seamlessly. Again, the suggestion of putting the Fielden factors likely will not solve all issues, especially considering a treating physician’s testimony, but it may grant clarity to lawyers working with the rule to understand the scope of testimony allowed. The establishment of clear guidelines would lead to additional accountability amongst attorneys to follow the Federal Rules of Civil Procedure and could result in the development of more uniformly applicable best practices within the profession surrounding physician testimony.

V. Conclusion

The challenges that arise from a treating physician’s testimony extending past the scope of their treatment are unlikely to go away anytime soon. While some aspects of the issue may be resolved by an amendment to Fed. R. Civ. P. 26, such an amendment is unlikely to clarify all the issues presented. The duty of clarification rests on the legislature to determine the scope of a treating physician’s testimony. Not only must the courts clarify the appropriate scope, but also must be diligent in their efforts to ensure no injustices arise from a physician extending themselves into areas outside the treatment.

[1] See Fed. R. Civ. P. 26.

[2] See Fed. R. Civ. P. 26(a)(1)(A) detailing that, even before discovery, a lawyer must provide: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses, unless the use is solely for impeachment. This is used to facilitate the discovery process and make it much more efficient and cheaper to work through litigation, a bonus for the defense, the plaintiff, and the courts. 

[3] See Fed. R. Civ. P. 26(a)(1)(C). Fed. R. Civ. P. 26(f) is a conference for the parties and court to lay the timeline for the litigation proceedings, including when expert witnesses will be disclosed.

[4] See Fed. R. Civ. P. 26(a)(1)(C). The prior rule did not have this requirement.

[5] See Fed. R. Civ. P. 26(a)(2)(A). Fed. R. Evid. 702 defines an expert as a witness qualified by knowledge, skill, experience, training, or education, and may testify to (a) their scientific, technical, or other specialized knowledge that will help the trier of fact; (b) testimony based on sufficient facts or data; (c) product of reliable principles and methods; and (d) the expert reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 703, in part, states that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Fed. R. Evid. 705, in part, states that an expert may state an opinion without first testifying to the underlying facts or data but may be required to disclose the facts or data upon cross-examination.

[6] See Fed. R. Civ. P. 26(a)(2)(B). Rule 26(a)(2)(B) also stipulates that if an expert is regularly involved in giving expert testimony for the party, then they must also provide an expert report.

[7] See Fed. R. Civ. P.26(a)(2)(B)(i)-(vi). (i) states that all the opinions the expert has and the basis for them; (ii) is the facts used in forming them; (iii) is any exhibit used; (iv) the witness’s qualifications, including publications; (v) is a list of other cases they were used as an expert; and (vi) a statement of the fee’s charged by the expert. Additionally, issues may arise in the discoverability of documents produced to experts, should their testimony be used.

[8] See Fed. R. Civ. P. 26(a)(2)(C).

[9] See Fed. R. Civ. P. 26(a)(2)(C)(i) and (ii).

[10] See Notes of Advisory Committee on 2015 Amendments to Fed. R. Civ. P. 26.

[11] See Notes of Advisory Committee on 1993 Amendments to Fed. R. Civ. P. 26.

[12] See Fed. R. Civ. P. 26.

[13] See Barnes v. CSXT Transp., Inc., W.D. Ky. No. 3:13-CV-00525, 2017 U.S. Dist. LEXIS 53650, 36-37 (W.D. Ky. Apr. 7, 2017); See also Amos v. W.L. Plastics, Inc., No. 2:07-CV-49 TS, 2009 U.S. Dist. LEXIS 107271, 2009 WL 3854980 at 2 (D. Utah Nov. 17, 2009).

[14] See Fielden v. CSX Transp., Inc., 482 F.3d 866, 869-72 (6th Cir. 2007).

[15] Id. at 870-73; See also Jett v. CSX Transportation Inc, No. 2007-162 (WOB), 2009 U.S. Dist. LEXIS 28750, 2009 WL 899626 at *3 (E.D. Ky. 2009) (discussing Fielden, 482 F.3d at 870-73).

[16] Id. at 871.

[17] See Fielden, 482 F.3d at 870-71.

[18] See Avendt v. Covidien Inc., No. 11-cv-15538, 2014 U.S. Dist. LEXIS 175843, 9 (E.D. Mich. 2014).

[19] Id. at 10.

[20] Id. at 12.

[21] Id. at 13.

[22] Id.

[23] See Avendt v. Covidien Inc., No. 11-cv-15538, 2014 U.S. Dist. LEXIS 175843, 9 (E.D. Mich. 2014). (citing Tyler v. Pac. Indem. Co., No. 10-cv-13782, 2013 U.S. Dist. LEXIS 6898, 2013 WL 183931, at *2 (E.D. Mich. 2013)).

[24] See Wilson v. Hill, No. 2:08-CV-552, 2012 U.S. Dist. LEXIS 43246, 2012 WL 1068174, at *5-6 (S.D. Ohio 2012).

[25] Id.

[26] While often referenced as the “treating physician” exemption, it is not solely for a medical incident. The exemption has been applied to computer professionals (See Linux One Inc. v. Inktomi Corp., No. C03-01598 JW, 2004 U.S. Dist. LEXIS 30804, 2004 WL 5518163 (N.D. Ca. Aug. 26, 2004)) all the way to elevator employees involved in the remodeling of a historic hotel (See Burgundy Development, LLC v. The Lathan Company, Inc., No. 12-1387, 2012 U.S. Dist. LEXIS 180518, 2012 WL 6674413 at 2 (E.D. La. Dec. 20, 2012)).

[27] See Barnes, 2017 U.S. Dist. LEXIS 53650, 43-39.

[28] Id.

[29] Id. at 51.

[30] See Negligence, Black’s Law Dictionary (11th. Ed. 2011).

[31] See Roberts v. Solideal Tire, Inc., E.D. Ky. No. 06-14-DLB, 2007 U.S. Dist. LEXIS 75512, 16 (E.D. Ky. Oct. 10, 2007); See also Lindon v. Kakavand, E.D. Ky. No. 5: 13-26-DCR, 2014 U.S. Dist. LEXIS 161986, 9-10 (E.D. Ky. Nov. 18, 2014) (limiting a treating doctor’s testimony which was outside the scope of treatment to criticism of another doctor).

[32] See generally Fed. R. Civ. P. 26.

[33] See Notes to 1993 Amendments of Rule 26.

[34] Daubert refers to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (June 28, 1993), and Frye refers to Frye v. United States, 293 F. 1013 (D.C. Cir. Dec. 3, 1923). Both cases, in pertinent part, identify factors in assessing an expert witness’s credibility.   

[35] See Andrew Lehmkuhl, Yagodinski: Another Reminder to Keep Experts in their Lane, PORTER RENNIE WOODARD KENDALL, LLP (Aug. 12, 2021), [], for a discussion on the implications of allowing an expert to testify beyond their medical scope.

[36] Supra note 10.

[37] Id.; see also Charles v. Print Fulfillment Services, LLC, No. 3:11-CV-553-H, 2014 U.S. Dist. LEXIS 6814, at 2-3 (W.D. Ky. Jan. 10, 2014) (“As a preliminary matter, the court concludes that the relevant question regartding the applicability of Rule 26(a)(2)(B), is not whether money has changed hands, or whether an employment relationship otherwise exists, but whether the witness will provide expert testimony … as opposed to opinion testimony from a lay witness”).

Ice Ice, Maybe?: Do University Bias Incident Report Teams Really Chill Student Speech, or Are They Just a Conduit?

Photo by Philippe Bout on Unsplash

Shelbi Shultz, Associate Member, University of Cincinnati Law Review

I. Introduction

Throughout American history, universities have served as a battleground for free speech debate as it applies to the First Amendment. A current focus of discussion are Bias Incident Report Teams (BIRTs) that have proliferated higher education in recent years.[1] Generally, these teams respond to bias reports; though, the way universities run the teams can differ. Some groups, such as the freedom of speech advocacy organization, Speech First, believe that BIRTs condemn certain opinions and create an atmosphere that quells student speech for fear of being reported.[2] Conversely, universities have been urged to reform policies and implement measures to combat hate on college campuses.[3] Public universities are often caught between a rock and a hard place: needing to comply with the Constitution as well as wanting to condemn hateful speech on their campuses.

This article will grapple with the constitutional dilemma that universities face when implementing a BIRT. First, this article will briefly summarize constitutional free speech issues in the university context before launching into an overview of the tension that has grown between Speech First and BIRTs. Next, this article will discuss current legal disputes and the circuit split that has emerged in the free speech arena.

At the outset, it is important to note that universities have different names for campus organizations like BIRTs, Offices for Student Conduct and Resolution (OSCR), or Title IX offices. Though their names may be different for each school, the organizations effectively serve the same purpose and will be referred to in the same way for the sake of clarity in this article.

II. Background

This section will introduce a brief history of the First Amendment’s role on college campuses, utilizing campus speech codes to illustrate how speech regulation has been historically viewed. Then an overview of BIRTs and Speech First will be discussed.

A. A History of Free Speech on College Campuses: Focusing on Speech Codes

Free speech and public universities have a rather tumultuous history, as universities are often caught between creating a space that promotes a wide array of ideas and maintaining order on campus. College classrooms and campuses have been touted as a distinct “marketplace of ideas,” and U.S. courts continuously protect student speech and academic freedom.[4] First Amendment concerns sometimes oppose a university’s desire to maintain order or create an inclusive campus climate. Judge Cohn summarized this sentiment in Doe v. University of Michigan, stating: “It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict.”[5] Essentially, this means that universities cannot prohibit hateful and degrading speech in order to remain compliant with the Constitution.

Campus speech codes illustrate an example of the tension between public universities and free speech.[6] These codes proliferated in the 1980s and 90s to combat race discrimination and harassment on campuses, and the speech codes prohibited discriminatory speech or speech that created a hostile campus environment.[7] Doe v. University of Michigan struck down University of Michigan’s speech code as being overbroad, because it prohibited speech that was merely “unseemly or offensive.”[8] The federal district court found that this outright prohibition of certain speech types violated students’ First Amendment free speech rights.[9]

College students are granted a wide latitude of First Amendment protections.[10] “Fighting words” are one of the few exceptions in which the First Amendment will not lend its protection, as “such utterances are no essential part of any exposition of ideas.”[11] In Chaplinsky v. New Hampshire, the Supreme Court defined “fighting words” as words that inflict injury or incite violence merely by being stated.[12] Courts have rarely used the standard set in Chaplinsky, choosing to offer wider protections to speech where possible. “Fighting words” contrast with hate speech, which the First Amendment protects.[13] R.A.V. v. St. Paul solidified this principle, holding that a law could not single out content-based viewpoints—even if those viewpoints touted Nazi swastikas or burning crosses.[14]

Despite its tendency to incite hostility, hate speech is protected under the First Amendment, as the courts have given a level of value to hate speech that is not afforded to “fighting words.” Because hate speech or symbols cannot be prohibited on college campuses, universities must deal with conflicts that may arise in the student body with delicate care—whether these conflicts are based on race, sexual orientation, religion, or gender. Notwithstanding setbacks in court with speech codes, universities have continued to work towards creating more inclusive campuses without explicitly banning certain speech. The most recent (and equally controversial) version of this fight pertains to BIRTs.

B. BIRTs and Speech First

Bias incidents are described as “prejudicially motivated conduct, speech, or expression that does not constitute criminal activity.”[15] Such actions that are considered criminal activity, like hate crimes, are “crimes of violence, property damage, or threat that is motivated in whole or in part by an offender’s bias based on race, religion, ethnicity, national origin, gender, physical or mental disability, or sexual orientation.”[16] Hate crimes or other legal violations committed on college campuses are handled through existing disciplinary bodies such as campus police or OSCR where an investigation is conducted and punishment may be proscribed.[17] Universities have developed and implemented BIRTs to address those bias incidents that do not violate law or university policy.[18]

Examples of bias incidents include “microaggressions, protests, displays, and events that are hostile to various diverse groups and are considered to have a deleterious effect on the overall campus climate and/or on particular groups on campus.”[19] BIRTs respond to reports of these incidents; though, they lack the authority to investigate the alleged incident or discipline accused students.[20] Instead, BIRTs “receive reports of incidents that may involve prejudice from students, faculty, and staff; reach out and seek to support those who file reports; engage those who were the subjects of reports in voluntary, educational conversations; and monitor trends in the campus climate to inform educational efforts.”[21] Generally, the only contact BIRTs have with accused students is reaching out for a voluntary meeting to discuss the reported bias.

Despite their idealistic goals to create inclusive campuses where there are mechanisms to address hate, BIRTs have recently been at the center of legal controversy. Speech First, a student free speech advocacy group, has represented students in numerous lawsuits against universities over their BIRT policies. Speech First describes itself as a “membership association of students, parents, faculty, alumni, and concerned citizens who’ve had enough of the toxic censorship culture on college campuses, and who want to fight back.”[22] Speech First commits itself to protecting students’ rights to free speech, and this mission remains active with a case decided as recently as September 22, 2021.[23]

III. Discussion

Although not every U.S. Circuit has decided a Speech First case, a split exists among the jurisdictions that have ruled on the issue. Currently, the Fifth and Sixth Circuits have sided with Speech First, concluding that BIRTs do violate the First Amendment in their ability to chill student speech.[24] The Seventh Circuit and federal district courts in the Fourth and Eleventh Circuits decided that BIRTs do not infringe on students’ free speech rights.[25] This article will argue that the Seventh Circuit took the most persuasive approach in evaluating a BIRT’s role on campus. BIRTs remain a pertinent issue, and Speech First exhibits no signs of ending their BIRT crusade. Thus, it is likely that more courts will decide on this topic in the near future.

Speech First v. Schlissel et al. was one of the first cases filed to combat the presence of BIRTs on college campuses, and it set a powerful precedent for other cases that were subsequently decided. In 2018, Speech First sued the University of Michigan president for his role in allegedly quelling student speech on campus—partly for the presence of a BIRT.[26] Speech First argued that the University’s definition of “bias incident” was too broad, and that the team’s “practices in responding to bias incidents intimidate students, quashing their speech.”[27]

The Sixth Circuit found two major issues with University of Michigan’s BIRT: its ability to make referrals to campus disciplinary bodies and to meet with the alleged perpetrators of the bias incidents.[28] The court held that despite the BIRT’s inability to directly discipline students, its capacity to make referrals that could initiate formal investigation processes was “chilling, even if it d[id] not result in a finding of responsibility or criminality.”[29] The court also found that the BIRT’s ability to voluntarily meet with accused students “could carry an implicit threat of consequence should a student decline the invitation.”[30] Due to these factors, the Sixth Circuit ruled in favor of Speech First.[31]

Soon after the Sixth Circuit ruled in Schlissel, the Fifth Circuit decided Speech First v. Fenves.[32] In Fenves, Speech First sued the University of Texas at Austin, challenging their BIRT and its potential impact to chill student speech.[33] The Fifth Circuit ultimately sided with Speech First, using similar logic that the Sixth Circuit employed in Schlissel.[34] Despite their similarities, a key difference between the cases involved evidence suggesting that University of Texas’s BIRT actually referred a large number of reporting students to disciplinary bodies for further support.[35] The court likened University of Texas’ BIRT to “the clenched fist in the velvet glove of student speech regulation.”[36] The courts in both Schlissel and Fenves maintained negative views of the BIRT as an  authoritarian tool on campus purposefully utilized to restrict student speech.

In Schlissel, most of the arguments made that favored Speech First focused solely on the court’s idea of the BIRT and not its actual role on campus. The court emphasized that the BIRT could chill student speech through the possibility of making a referral to campus disciplinary bodies, yet there was no evidence cited in the case of that impact taking effect.[37] Much of the Schlissel’s majority opinion relies on speculation that the BIRT’s presence on campus quells student speech.[38] Since university disciplinary bodies such as OSCR, campus police, and Title IX, already exist to investigate and handle some of the same situations that could be reported through the BIRT, the court gives no clear reason why the BIRT itself is unconstitutional when the other bodies pose no issues.

If disciplinary bodies such as the campus police, OSCR, or the Title IX Office were using the bias incident reports to punish students without conducting investigations, then that would infringe on students’ due process rights and would reasonably quell student speech. But this is a free speech issue, and the court relies on thin reasoning that speech is actually in a position to be chilled. If the alleged bias incident is deemed appropriate to refer to a campus disciplinary body, BIRTs simply serve as a conduit between students’ reports and the proper offices that investigate such reports. BIRTs can create a more accessible reporting process for actual conduct violations without chilling student speech. Essentially, if the Fifth and Sixth Circuits want it to be more difficult to report bias incidents or hope more incidents go under the radar, then they should just express that sentiment.

Opposed to the speech codes that were struck down 30 years ago, BIRTs do not prohibit student speech or conduct but create a reporting mechanism without any disciplinary power. BIRTs are easily distinguished because speech is not actually being prohibited—only addressed in a completely voluntary meeting.[39] BIRTs also serve to support students who make reports by letting their concerns be heard, whether or not they want to formally report the alleged bias.[40] Conduct that constitutes bias is not forbidden on college campuses—there is merely a mechanism that allows the university to address and monitor the incident through voluntary and non-disciplinary measures by inviting the accused student to have a conversation about the report.

In contrast to the Fifth and Sixth Circuits, the Seventh Circuit and federal district courts in the Eleventh and Fourth Circuits have decided in favor of universities in cases brought by Speech First. The Seventh Circuit case, Speech First v. Killeen, was brought by Speech First against the University of Illinois at Urbana-Champaign president.[41] Speech First v. Cartwright, decided by a district court in the Eleventh Circuit, was brought against the president of University of Central Florida and decided on July 29, 2021.[42] Most recently, a case brought against Virginia Tech president, Speech First v. Sands, was decided by a district court in the Fourth Circuit on September 22, 2021.[43]

All of these cases utilize similar reasoning—with Cartwright and Sands following Killeen’s lead—concluding that BIRTs do not pose an obstacle to free speech.[44] The courts focus on the fact that the BIRTs have no formal disciplinary power and cannot compel student participation in meetings.[45] Thus, “a program that has no authority to discipline students and cannot compel students to engage with it does not objectively chill conduct unless there is evidence to the contrary.”[46] In most cases, universities cannot show evidence to the contrary. In future cases, hopefully courts will follow the commonsense reasoning employed by the Seventh Circuit and federal district courts in the Eleventh and Fourth Circuits in determining whether BIRTS actually pose free speech issues on college campuses.

IV. Conclusion

Ultimately, there are probably better mechanisms to address issues of hate and bias at universities than BIRTs. This article does not argue that BIRTs are perfect, but it does note that there is a substantial difference between perfection and blatant unconstitutionality—with BIRTs likely falling somewhere just past constitutionality. Between fierce demands for racial justice, a polarizing presidential election, and a global pandemic, universities want to serve their students in the most effective means possible. Universities should have the ability to find ways to combat hate on campus without being harassed by organizations that seek out students to represent in court.

[1] Miller et. al, A Balancing Act: Whose Interests Do Bias Response Teams Serve?, 42, The Rev. of Higher Educ., 313, 317 (2018),

[2] Speech First v. Cartwright, No. 6:21-cv-313-GAP-GJK, 1, 2021 U.S. Dist. LEXIS 146466 (M.D. Fla. July 29, 2021).

[3] Valerie Strauss, Colleges and universities can do more to protect students and faculty from hate crimes on campus. Here are some ideas., Wash. Post (Aug. 16, 2019),

[4] Healy v. James, 408 U.S. 169, 180-181 (1972).

[5] Doe v. Univ. of Mich., 721 F. Supp. 852, 853 (E.D. Mich. 1989).

[6] David L. Hudson Jr., Hate Speech and Campus Speech Codes, Freedom Forum Institute (updated Mar. 2017),

[7] Id. (There were 350 speech codes implemented by universities nationwide according to a 1995 report.).

[8] Doe, 721 F. Supp. at 864.

[9] Id. at 854.

[10] See Healy, 408 U.S. at 180, (Justice Powell states that, “…precedents of this Court leave no room for the view that, because the acknowledged need for order, First Amendment protections should apply with less force on college campuses than the community at large.”).

[11] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

[12] Id.

[13] R. A. V. v. St. Paul, 505 U.S. 377, 383 (1992).

[14] Id.

[15] Miller, supra note 1, at 315.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 316.

[20] Miller et al., Bias Response Teams: Fact vs. Fiction, Inside Higher Ed (June 17, 2019),

[21] Id.

[22] Speech First, About, (last visited Oct. 16, 2021).

[23] Speech First, Inc. v. Sands, No. 7:21-cv-00203, 2021 U.S. Dist. LEXIS 181057 (W.D. Va. Sep. 21, 2021) (This case was decided on September 22, 2021, as this article was being written.).

[24] See Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019); Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020).

[25] See Speech First, Inc. v. Killeen, 968 F.3d 628 (7th Cir. 2020); Speech First, Inc. v. Sands, No. 7:21-cv-00203, 2021 U.S. Dist. LEXIS 181057 (W.D. Va. Sep. 21, 2021); Speech First v. Cartwright, No. 6:21-cv-313-GAP-GJK, 1, 2021 U.S. Dist. LEXIS 146466 (M.D. Fla. July 29, 2021).

[26] Schlissel, 939 F.3d at 756.

[27] Id. at 762.

[28] Id. at 765.

[29] Id.

[30] Id.

[31] Id. at 771.

[32] Fenves, 979 F.3d at 319.

[33] Id.

[34] Id. at 335.

[35] Id. at 338.

[36] Id.

[37] Schlissel, 939 F.3d at 771 (White, J., dissenting).

[38] Id. at 772.

[39] Miller et al., Bias Response Teams: Fact vs. Fiction.

[40] Id.

[41] Killeen, 968 F.3d at 628.

[42] Cartwright, No. 6:21-cv-313-GAP-GJK at 12.

[43] Sands, No. 7:21-cv-00203 at 4.

[44] Cartwright, No. 6:21-cv-313-GAP-GJK at 18; Killeen, 968 F.3d at 644; Sands, No. 7:21-cv-00203 at 52.

[45] Cartwright, No. 6:21-cv-313-GAP-GJK at 12.

[46] Id.

The Parent Trap: Parents With Disabilities and the Flaws within Termination of Parental Rights Proceedings

Photo by Guillaume de Germain on Unsplash

Erica Anderson, Notes and Comments Chair, University of Cincinnati College of Law

I. Introduction

“It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough.”[1] This quote is taken directly from Justice Holmes opinion of the United States Supreme Court in Buck v. Bell in 1927 which held that “the welfare of society may be promoted . . . via the sterilization of mental defectives” and claimed that “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”[2] Although the U.S. has taken strides to move past involuntary sterilization of people with mental disabilities, it has simply found a eugenics backdoor—the termination of parental rights (“TPR”). [3]

The overwhelming majority of the country still maintains the belief that people with mental disabilities are unfit to be parents and that “both they and their children are unmitigated drains on society.”[4] Consequently, of the 94,300 parents with mental disabilities in the U.S.,[5] up to 80% of those parents lose custody of their children at some point in their lifetime.[6]

These results do not match the evidence, however, as research demonstrates that of all categories of parents involved in TPR proceedings, parents with mental disabilities are typically compliant with the requirements of their reunification plans and have the “lowest incidence of previous legal problems.”[7] Therefore, parents with disabilities are objectively the best candidates for reunification with their children. Yet, parents with mental disabilities are stripped of their parental rights just as often as parents suffering from substance-abuse disorders who are the “least likely to comply with the requirements of their reunification plan.”[8]

This begs the question—if the goal behind child protective custody laws is always reunification when possible,[9] then why are so many parents with disabilities losing parental rights of their children forever?

II. Background

Although state laws traditionally regulate families, the Supreme Court has limited the state’s purview over family law by affirming that the Fourteenth Amendment guarantees a parent’s right to custody of their children.[10] In Stanley v. Illinois, Justice White delivered the opinion of the court stating that “a parent’s right to ‘the companionship, care, custody, and management of his or her children . . . undeniably warrants deference and, absent a powerful countervailing interest, protection.’”[11]

Occasionally, however, the fundamental right of family autonomy granted by the Constitution conflicts with the state’s “interest in preserving and promoting the welfare of the child.”[12] The state, then, may exercise its parens patriae power to permanently terminate a parent’s rights to their child when evidence suggests parental abuse or neglect.[13]

Federal laws typically require states to make “reasonable efforts” to preserve or reunify a family.[14]  Such laws are critical armor to parents with disabilities. Unfortunately, these laws do not require a state’s “reasonable efforts” be designed for the specific needs of a parents with disabilities nor do they provide any substantive guidance regarding what those efforts should look like.[15] Furthermore, states may override the requirement for reasonable efforts to reunification if it can demonstrate that “reunification is not, and never will be, in the best interest of the child.”[16] Consequently, reunification efforts often fail parents with disabilities, and as a result, these parents lose custody of their children forever.[17] This is especially horrendous because unlike criminal proceedings, the Supreme Court has held that parents in TPR proceedings do not have a constitutional right to an attorney.[18]

A. Child welfare laws

Notwithstanding the United States Constitution’s limitations on a state’s rights to “interfere with a person’s most basic decisions about family and parenthood,”[19] almost all states have child custody laws, and 37 states have child welfare laws that are highly prejudicial to parents with disabilities. Specifically, many of these laws authorize the TPR “on the basis of the parent’s disability.”[20] These state laws have been challenged constitutionally under both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, but these challenges were ultimately unsuccessful.[21]

Because TPR proceedings “employ imprecise standards that leave the determination unusually open to the subjective values of the judge,” the Supreme Court has granted states complete discretion to design their own statutory requirements and procedures for the TPR.[22] Typically, these statutes involve a parental “unfitness” standard and/or a multi-factored “best interest of the child” test.[23] Almost all statutes include a parent’s mental or psychiatric disability as a relevant factor to be considered by the court,[24] and some statutes permit TPR because of the mere existence of a parent’s disability. Both “unfitness” standard statutes and “best interest of the child” test statutes have similar outcomes in practice; if a parent’s rights would be terminated under one standard, they would likely be terminated under the other standard, as well, and vice versa. [25]

B. Navigating the TPR process

Regardless of which standard a state follows, navigating the TPR process as a parent with a mental disability often inevitably results in termination. Unlike criminal proceedings in which a defendant only receives punishment after being proven guilty beyond a reasonable doubt, the consequence in TPR proceedings (the removal of a child) may occur right off the bat when a report of suspected abuse or neglect is made.[26] After a report has been received, if the case is neither dismissed nor immediately adjudicated, then a child may be temporarily removed from a parent’s home until the parent is deemed fit or unfit for custody of the child.[27] Thus, no evidence is necessary before the removal of a child.

Immediately after the potentially traumatizing involuntary removal, a child welfare agency begins the TPR process by setting up a hearing,[28] and the parent must act quickly to prevent losing custody of their child forever.[29] Yet, the challenges of the TPR process and involuntary child removal—high stress levels, changes in routine, and feelings of loss of control—are common examples of factors that often contribute to worsening the symptoms of numerous mental disabilities such as autism and anxiety.[30] Consequently, parents with disabilities are expected to demonstrate their fitness as a parent while being traumatized by the decision makers.

It is nearly impossible for a parent with mental disabilities to advocate for their fitness as a parent while falling into the gap between the mental health system and the child welfare system.[31] The mental health system “treats the individual without focusing on his or her parenting role, and the child welfare system [] judges the individual’s capacity to quickly meet the needs of his or her children.”[32]

Because these two systems are completely separate, and child welfare agencies do not provide mental health services,[33] parents with disabilities must be referred to external mental health agencies in the area.[34] Unfortunately, referrals, scheduling appointments, and gaining trust in a mental health specialist (amongst other problems) all take a lengthy amount of time and do not cater to the strict timeline of the TPR process.[35] It can sometimes take months, or even years, to be taken off a waitlist for mental health treatment.[36] Yet under federal law, states must seek the TPR after a child has been in foster care for a mere 15 months.[37] Consequently, by the time parents receive the mental health services that they need, they may have already permanently lost their children.

Moreover, many state statutes permit courts to simply bypass services necessary for parents with disabilities to be reunited with their children by assuming parents with mental disabilities cannot benefit from those services.[38] Further, states in TPR proceedings merely consider parents as individuals instead of viewing parenting through the lens of the social model.[39] When considering parents as individuals, states are only reviewing the capacities of the parent as an individual, whereas a review of parents under the social model would consider parenting “as much a function of schools, community supports, families, and neighbors, and even social services, as it is of the characteristics of the individual.”[40] Thus, under the social model, a parent may be deemed fit with the help of their neighbor, but under the individual model, a parent is unfit unless they can take care of a child completely on their own.

C. The Americans with Disabilities Act

“Let the shameful wall of exclusion finally come tumbling down!” exclaimed President George H. W. Bush as he signed the Americans with Disabilities Act (“ADA”) into law.[41] Title II of the ADA prohibits public services, such as child welfare agencies, from being denied to those with disabilities.[42] Under Title II, child welfare agencies and courts must not only ensure that people with disabilities have an equal opportunity to participate in services, programs, and activities, but agencies and courts must also provide “reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination.”[43]

One of the ADA’s most basic requirements is individualized treatment. Namely, child welfare agencies and courts must accommodate people with disabilities on a case-by-case basis.[44] In addition, these entities are prohibited from acting based on stereotypes and generalizations about people with disabilities.[45] In other words, accommodations may not be denied to one person with a disability merely because others with that same disability do not need that same accommodation. However, the ADA does allow for exceptions in cases in which providing an accommodation would fundamentally alter the nature of the services offered, cause an undue financial or administrative burden, or result in a significant risk to the health or safety of others.[46]

States commonly argue that mental health treatment—the accommodation most parents with mental disabilities need—placed an undue burden on the state.[47] To determine whether an undue burden exists, courts often analyze the overall cost of the accommodation in light of the entire agency and the operation and nature of the agency.[48]

D. The ADA as a Defense

Under the ADA, parents may argue that their parental rights would not have been terminated if they had been provided with accommodations designed to meet their individualized needs.[49] Although the ADA is often the only protection provided to parents at risk of losing parental rights to their children in TPA proceedings, the ADA is seldom exercised in TPR proceedings at all.[50] In fact, courts have completely rejected the ADA as a defense in TPR proceedings for a myriad of reasons including the following:

TPR proceedings are not a “service, program or activity” within the meaning of the ADA,[51]

Title II contemplates only affirmative action on the part of the injured party rather than defenses against a legal action by a public entity,[52]

Allowing a parent to assert a violation of the ADA [means] that the child’s rights will be compromised,[53]

A parent must raise an ADA violation prior to the TPR trial, not during.[54]

Even the minority of courts which have held that the ADA is a proper defense in TPR proceedings have failed to appropriately apply the ADA by holding “sufficient reasonable modifications in services were made to accommodate parents’ disabilities, and therefore, no ADA violations occurred.”[55]

III. Discussion

The ADA should restrict states from passing legislation that permits TPR to occur merely because of a parent’s disability status. However, because numerous states possess such legislation, when parents with disabilities raise claims of an ADA violation, courts can essentially bury their heads in the sand while finding the ADA inapplicable.

A. The ADA should apply to TPR proceedings and reunification services

First, the argument that “TPR proceedings are not a ‘service, program or activity’ within the meaning of the ADA” is almost laughable. The termination process is administered by the judicial system, and reunification services and programs are administered by state agencies.[56] In fact, the ADA’s legislative history establishes clear evidence that it applies to the child welfare system and dependency courts. During a congressional hearing regarding the ADA’s passage, Justin Dart, Jr., whom the disabled community refers to as the “Father of the ADA,” testified to the following:

We have clients whose children have been taken away from them and told to get parent information, but have no place to go because the services are not accessible. What chance do they ever have to get their children back? [57]

Another witness  at the congressional hearing stated,

These discriminatory policies and practices affect people with disabilities in every aspect of their lives . . . [including] securing custody of their children.[58]

Thus, to deny that the ADA is applicable to TPR proceedings would be to ignore the legislative purpose of the ADA.

Second, the argument that the ADA does not apply to TPR proceedings because Title II contemplates only affirmative action on the part of the injured party rather than defenses against a legal action by a public entity is majorly flawed. Raising an ADA violation during a TPR proceeding is not a parent’s attempt to litigate that issue on the spot within family court, but rather an attack on the agency’s evidence that the parent is unfit. If an agency is attempting to irreversibly revoke a parent’s custody of their child, it must do so justly. Thus, an agency cannot argue that a parent with a disability is incapable of properly caring for their child while simultaneously denying legally required accommodations that would make parenting possible.

Third, contrary to the beliefs of numerous state courts, a child’s rights will not be compromised by a parent asserting an ADA violation. The focus of a family court proceeding is undoubtedly always on the child and their best interest even when an ADA violation against the parent is at issue.[59] As such,

[a] parent’s evidentiary attack should not be viewed as necessarily contrary to the interests and rights of a child; if a parent has been discriminated against, and the parent-child relationship is severed, in part or in whole, because of this discriminatory treatment, the severance has drastic, and potentially harmful consequences for the child.[60]

Lastly, opinions by courts that parents with disabilities must raise ADA violation claims prior to their TPR trial is incredibly problematic: raising an ADA violation prior to a TPR trial is very premature. A parent cannot possibly be expected to know how an agency will accommodate their disabilities after the reunification plan is decided upon. Additionally, prohibiting ADA violation claims after the creation of a reunification plan permits, and arguably encourages, individualized accommodations to be denied.

For example, while serving as a law guardian, Dale Margolin Cecka describes an instance where a New York agency had removed a child from a mother with schizophrenia.[61] The agency then designed a reunification plan in which is promised referrals to parenting classes and housing assistance.[62] For the next five years, while the child was in foster care, the mother was left completely on her own without follow-ups from the agency.[63] Yet, the mother never missed a single visit with her daughter, she attended therapy and parenting classes, and had successfully managed to live on her own.[64] During this time, she had even been granted overnight visits with her daughter in which no problems ever arose.[65] However, the mother could not maintain a permanent housing situation, due to the agency failing to accommodate the mother’s housing needs, and her parental rights were terminated.[66] If the agency would have referred the mother to public housing or discussed assisted living options and plans with her, the family would likely have been reunited without major issues.

B. The ADA should be a plausible defense against state statutes which allow the TPR merely based upon disability status

Statutes that allow the TPR based upon a parent’s disability status alone explicitly discriminate against people with disabilities. Parental rights decisions should not be based upon disability status, but merely upon parental behavior. Research demonstrates that parenting ability  varies dramatically amongst people with disabilities.[67] Thus, it is unfair to categorize all parents with disabilities into one box as being “unfit.” Furthermore, the presence of a disability can actually be a parenting advantage to some people. For example, one autistic mother stated that she can better parent her autistic nine year old son because they share a condition and because she can better understand her son’s needs.[68] Additionally, doctors have shared that having autism can oftentimes be an asset to parenting because of the need for structure, routine, and predictability—all things which help children thrive.[69]

C. The states’ ADA defenses are not evidentially supported

The ADA permits exceptions to its prohibition of discrimination against people with disabilities if accommodations would require a fundamental alteration to the nature of the program or service[70] or if the accommodations would impose an “undue burden” upon an agency.[71]

States often argue that long-term mental health treatment presents an undue burden on states because mental health treatment is extremely expensive.[72] Although it is true that mental health treatment is expensive and inaccessible, such an argument should fail the undue burden test as reunification services are almost always cheaper than the cost of foster care through the age of 18, or sometimes 21.[73] A New York court held that the state was required under the ADA to continue to provide home health treatment to plaintiffs rather than moving them to a nursing home “because the state had not shown that the cost of home care was unreasonable with respect to the system as a whole.”[74] Because in TPR cases, the initial cost of reunification services is later offset by the future savings of preventing foster care costs, states cannot argue long-term mental health treatment for the parents will an undue financial burden.

V. Conclusion

Parents with disabilities face enormous societal biases concerning their parental fitness. Although the U.S. no longer enforces involuntary sterilization upon parents with disabilities, it has evolved to removing the parents’ children after birth, often resulting in disastrous consequences for all involved.

It is true that many parents with disabilities cannot care for children completely on their own, but have the potential to be wonderful parents with accommodations. When a state terminates parental rights without providing individualized accommodations and a sufficient amount of time for success, a clear ADA violation has occurred, and parents with disabilities should be able to raise the violation to demonstrate they would be fit parents if the state abided by the law.

[1] Buck v. Bell, 274 U.S. 200, 205 (1927).

[2] Id. (citing Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905)).

[3] Michael Lanci, In The Child’s Best Interests? Rethinking Consideration of Physical Disability in Child Custody Disputes, 118 Colum. L. Rev., 875, 881 (2018).

[4] Leslie Francis, Maintaining the Legal Status of People With Intellectual Disabilities As Parents: The ADA And The CRPD, 57 Fam Court Rev., 21, 21 (Jan. 2019).

[5] Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 43 (2012).

[6] Charisa Smith, Making Good on an Historical Federal Precedent: Americans with Disabilities Act (ADA) Claims and the Termination of Parental Rights of Parents with Mental Disabilities, 18 QUINNIPIAC HEALTH L. J. 191, 204 (2015).

[7] Jude T. Pannell, Unaccommodated: Parents with Mental Disabilities in Iowa’s Child Welfare System and the Americans With Disabilities Act, 59 Drake L. R., 1165, 1173 (2010).

[8] Id.

[9] See Recommending Reunification, Missouri Dep’t of Soc. Ser., (last visited Oct. 3, 2021).

[10] Troxel v. Granville, 530 U.S. 57, 65 (2000).

[11] 405 U.S. 645, 651 (1972)(emphasis added).

[12] Santosky v. Kramer, 455 U.S. 745 (1982).

[13] See Parham v. J.R. 442 U.S. 584, 603 (1979) (stating “[A] state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.”).

[14] Pannell, supra note 7, at 1167.

[15] Rocking the Cradle, Footnote 353; June T. Pannell, Unaccommodated: Parents with Mental Disabilities in Iowa’s Child Welfare System and the Americans with Disabilities Act, 59 Drake L. Rev., 1165, 1167 (2011).

[16] Susan Kerr, The Application of the Americans with Disabilities Act to the Termination of the Parental Rights of Individuals with Mental Disabilities, 16 J. Contemp. Health L. & Pol’y, 387, 402 (2000).

[17] Id. at 354.

[18] Lassiter v. Department of Social Services, 452 U.S. 18 (1981).

[19] National Council on Disability, Chapter 16: Need for Legislation to Ensure the Rights of Parents with Disabilities and Their Families, (last visited Sept. 1, 2021).

[20] Id.

[21] See Lassiter, 452 U.S. 18.

[22] Santosky, 455 U.S. at 762.

[23] Kerr, supra note 16, at 401.

[24] Id.

[25] Chris Watkins, Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarted, 83 Calif. L. Rev., 1415, 1472 (1995).

[26] Termination of Parental Rights, Law Shelf, (last visited September 20, 2021).

[27] Kerr, supra note 16, at 402.

[28] Theresa Glennon, Walking with Them: Advocating for Parents with Mental Illnesses in the Child Welfare System, 12 Temp. Pol.. & Civ. Rts. L. Rev., 273, 295 (2003).

[29] Pannell, supra note 7, at 1174.

[30] E.g. Theoharis C Theoharides and Maria Kavalioti, Effect of stress on learning and motivation relevance to autism spectrum disorder, 33 International J. of Immunopathology and Pharmacology, 1, 1 (2019) (stating patients with ASD have aggravated responses to stress); Kim Davis, M.S., What Triggers Anxiety for an Individual with ASD?, Indiana Resource Center for Autism, (last visited Oct. 4, 2021) (stating routine changes can negatively impact individuals with ASD); Am. Fam. Physician, Anxiety and Panic: Getting Control over Your Feelings, Am. Aca. Family Physicians (Oct. 15, 2006)

[31] Glennon, supra note 29, at 296.

[32] Id.

[33] Id. at 283.

[34] Id.

[35] See 12 Things I Wish I Knew Before I Became A Therapist, Careers in Psychology, (last visited Oct. 4, 2021) (stating it can take several months to years to gain trust in a therapist).

[36] Dennis Campbell, One in four waiting three months or more for mental health help, The Guardian (Oct. 6, 2020) (stating one in four individuals are waiting several months and even years to receive mental health treatment).

[37] 42 U.S.C. § 675(5)(E) (2006).

[38] See Ala. Code § 12–15-312 (c)(1)(e); Alaska Stat. Ann. § 47.10.086(c)(5); Ariz. Rev. Stat. Ann. § 8–846(D)(1)(b) (2018) (stating reasonable efforts for reunification are not required if services were provided for 12 months without resulting in improvement); Ky. Rev. Stat. Ann. § 610.127(6) (stating the same as Arizona).

[39] Francis, supra note 4, at 26.

[40] Id.

[41] Americans with Disabilities Act Turns 30, UMKC Institute for Human Development, (last visited Sept. 9, 2021).

[42] 42 U.S.C. 12131.

[43] 28 C.F.R. § 35.130(b)(7)(i) (2019).

[44] PGA Tour, Inc. v. Martin, 532 U.S. 661, 691 (2001).

[45] Powell, supra note 14, at 176 (citing to 28 C.F.R. § 35.130(b) (2018)).

[46] Id. (citing to 28 C.F.R. 36.302, 36.303 (2019)).

[47] Dale Margolin Cecka, No Chance to Prove Themselves: The Rights of Mentally Disabled Parents Under the Americans with Disabilities Act and State Law, 15 Va. J. Soc. Pol’y & L. 112, 139 (2007).

[48] Undue Burden, Northeast ADA Center, (last visited Oct. 4, 2021).

[49] In re C.M., 996 S.W.2d 269, 269-70 (Tex. App. Houston 1st Dist. 1999).

[50] Kerr, supra note 16, at 407.

[51] Nat’l Council on Disability, supra note 5, at 93; see also In re Adoption of Gregory, 747 N.E.2d, 120, 125, (Mass. 2001).

[52] Id.; see also In re Doe, 60 P.3d 285, 293 (Haw. 2002).

[53] Dale Margolin Cecka, No Chance to Prove Themselves: The Rights of Mentally Disabled Parents Under the Americans with Disabilities Act and State Law, 15 Va. J. Soc. Pol’y & L. 112, 145 (2007).

[54] Id. at 128.

[55] Nat’l Council on Disability, supra note 5, at 94.

[56] See In re Welfare of A.J.R., 78 Wash. App. 222, 230 (1995).

[57] National Council on Disability, The Child Welfare System: Removal, Reunification, and Termination, (last visited Sept. 27, 2021).

[58] Id.

[59] Cecka, supra note 53, at 123 (citing M.C. v. Department of Children and Families, 750 So.2d 705, 706 (Fla. Dist. Ct. App. 2000)).

[60] Id. at 125.

[61] Id. at 113.

[62] Id. at 128.

[63] Id.

[64] Id. at 113.

[65] Id.

[66] Id. at 128.

[67] Chris Watkins, Beyond Status: The Americans with Disabilities Act and the Parental Rights of People Labeled Developmentally Disabled or Mentally Retarded, 83 Calif. L. Rev., 1415, 1472 (1995).

[68] Sarah Deweerdt, The unexpected plus of parenting with autism, Spectrum News (May 16, 2020),

[69] See Hillary Hurst Bush, PhD., AsperDad: Growing Up With a Parent on the Autism Spectrum (Maybe), (last visited Sept. 27, 2020).

[70] § 35.130(b)(7).

[71] Helen L. v. Didario, 46 F.3d 325, 338 (3rd Cir. 1995).

[72] Cecka, supra note 53, at 139.

[73] Id.

[74] Id. (citing Sanon v. Wing, 2000 N.Y. Misc. LEXIS 139 (N.Y. Sup. Ct. 2000).

A head-spinning opinion: Supreme Court of Ohio rules mental health records are not privileged in a claim for child custody and spousal support

Photo by Beatriz Pérez Moya on Unsplash

Susana Tolentino, Associate Member, University of Cincinnati Law Review

I. Introduction

It is crucial to trust in the confidentiality of mental health treatment sessions because “the mere possibility of disclosure of confidential communications may impede the development of the relationship necessary for successful treatment.”[1] The Supreme Court of Ohio’s decision in Torres Friedenberg v. Friedenberg has weakened the trust of those seeking divorce and child custody or spousal support in the confidentiality of mental health treatment sessions by unnecessarily loosening the exception to the psychotherapist-patient privilege standard.[2] This result goes against the public policy reasoning that supported the development of the privilege; it was determined that the mental health of our citizens is a “public good of transcendent importance,” and the privilege is therefore necessary because it facilitates appropriate treatment.[3] The potential benefits of mental health treatment for families going through a divorce are diminished by chilling a parent’s desire to seek help.[4]

Belinda Friedenberg’s mental health records were released to Keith Friedenberg in a divorce case with custody and spousal support claims. Keith never raised a concern about Belinda having a mental health condition that would affect her ability to parent or work. The trial court did not conclude there was a specific mental health injury relevant to either claim before releasing the records. Under these standards, individuals going through a divorce will be afraid to seek support during what is likely one of the most trying periods of their life for fear their highly private and personal information will be used as a tool for harassment in the divorce proceedings.  

This article will discuss how the Supreme Court of Ohio misconstrued Ohio case law to support an incorrect rendition and application of an exception to Ohio’s physician-patient privilege statute in Torres Friedenberg v. Friedenberg.[5]  Part II of this article will give a brief overview of the case’s background. Part III summarizes the majority’s holding and the dissenting Justice’s argument. Part IV analyzes the majority’s opinion in detail by assessing the statutory language and the Ohio case law presented in support of the holding. Finally, Part V emphasizes that the Supreme Court of Ohio improperly summarized Ohio case law to support an incorrect rendition of the statutory exception to the physician-patient privilege. The Court then applied the incorrect standard to hold the trial court had not erred when it released a party’s mental health records in a divorce case with a claim for child custody and spousal support.

II. Case background

Belinda and Keith Friedenberg were married in June 1991 and, during their marriage, had four children.[6] Belinda filed for divorce in March 2016.[7] Keith’s counsel issued subpoenas to mental health professionals for Belinda’s mental health records.[8] Belinda filed a Motion to Quash Subpoena Duces Tecum, arguing the records were protected by the physician-patient privilege.[9] Keith claimed that because Belinda had initiated a claim for custody and spousal support, she had triggered an exception to the privilege.[10] Keith had not raised any concerns about a physical or mental injury affecting Belinda’s ability to parent or work.[11] Belinda had never been diagnosed with a mental health condition.[12] Belinda was in training to become a psychoanalyst, and as a part of her training, she was required to participate in psychoanalysis. Keith sought records from these sessions.[13]

The trial judge ordered the immediate release of Belinda’s mental health records, subject to a protective order limiting dissemination.[14] The order stated that “the documents were relevant” and concluded both parties had waived their physician-patient privilege by requesting custody and that Belinda had waived her privilege by seeking spousal support.[15]

Belinda appealed the release of her medical records and claimed the trial court erred as a matter of law and abused its discretion.[16] The Eleventh District Court of Appeals affirmed the trial court’s order, finding “a review of Ohio statutory and case law indicate that parents seeking custody of their children waive the physician-patient privilege” and that Ohio custody and spousal support statutes require consideration of physical and mental health conditions even if no issues have been raised regarding a party’s health.[17]

One judge dissented, finding the trial court abused its discretion in releasing all of Belinda’s records because the magistrate had concluded only the relevant records were to be released.[18] The judge also believed Belinda’s mental and physical health had not been at issue in the proceedings because Keith had not raised a concern about her ability to parent or work, premised on a mental or physical health injury; the lower courts did not explain how the released documents were relevant; therefore, the documents should not have been released.[19]

III. The Supreme Court of Ohio Accepts Friedenberg

A. The Majority

The Supreme Court of Ohio affirmed the appeals court decision and held that by claiming child custody or spousal support, the mental and physical health records of those involved in the dispute are placed at issue, and, therefore, the physician-patient privilege is waived.[20] The Court interpreted the pertinent Ohio statutory language as requiring trial courts to consider the physical and mental conditions of the parties in every custody and spousal support claim.[21] Under this understanding, the Court found the health records were placed at issue the moment the claim was filed; therefore, the records were relevant factors to be considered without an express challenge to a party’s ability to parent or to work based on a specific health condition. [22]   

If a dispute arises regarding the connection between the physician-patient communications and the issues (custody and spousal support), the trial court orders an in-camera review to ensure the documents released are properly excepted from the privilege pursuant to R.C. 2317.03(B)(3)(a).[23] In this case, the Ohio Supreme Court found the lower courts had correctly applied the law because the trial court had performed an in-camera review, and the review showed that any documents that had been released were either causally or historically related to the issues in the case.[24]

B. The Dissent

The dissenting Justice argued Ohio law requires the trial court to consider certain factors when deciding the best interest of the child and for allocating spousal support.[25] The trial court is required to “consider all relevant factors” which include the mental and physical health of the parties involved.[26]

The orders by the lower courts can reasonably be read to stand for the propositions that (1) the parties’ mental and physical health records are always at issue in a child-custody or spousal support claim; (2) therefore, the records are always “relevant factors” to be considered; and (3) the subsequent release does not depend on the records being causally or historically related to a mental or physical injury that was also found relevant to an issue in the case. [27]

The dissenting Justice pointed out that the lead opinion directs trial courts to apply the correct statutory standard to properly waive privilege rights, but they then ended up applying a condensed version of the statute to the facts of this case. The majority determined the documents were found causally or historically relevant to the custody and spousal support issues in the divorce proceedings.[28] The dissenting Justice would have reversed the appeals court’s judgment and remanded the case to ensure the documents released met the complete requirements of the statute: that the communications were “(1) causally or historically related to a physical or mental injury that [was] (2) relevant to the issues in this case.”[29]

IV. Discussion

The majority opinion misconstrued Ohio case law and incorrectly applied the relevant exception to the physician-patient privilege statute to hold that in this case, under the cited case law and statutes, the mental health records were properly released.

The majority relied on Gill v. Gill, reasoning that a party seeking custody, “subjects him or herself to extensive investigation of all factors relevant to the permanent custody award.” Therefore, the party makes his or her mental and physical health relevant—without an express challenge—to be considered and triggers the exception to the privilege.[30]

In Gill, the records sought pertained to the mother’s inpatient treatment for drug dependency.[31] The majority opinion plucked the Gill quote out of a larger paragraph that began by saying when a patient files a civil action, the patient waives their physician-patient privilege “as to any communication that relates causally or historically to the physical or mental injuries put at issue by such civil action.”[32] The majority then quoted that a party seeking custody “subjects him or herself to extensive investigation of all factors relevant” to the claim.[33]

Here, the mother’s ability to parent was challenged based on a mental injury (her drug dependency); therefore, a mental injury had been put at issue in the civil proceeding, making the injury a relevant factor to be considered. Further, the Gill court stated that the patient had waived his or her privilege only as to those communications that related to the injury that had been put at issue.[34] The court then went on to say the pertinent custody statute places importance on the mental and physical health of the parent and “places the mental conditions of all family members squarely at issue.”[35] Reiterating the fact that drug dependency was a mental condition (in other words, injury) that had been put at issue and was therefore an important relevant factor to be considered. Therefore, Gill is not a strong case for the majority to cite to support the argument that an express challenge to a health condition is not needed to make health records relevant factors to consider in a custody claim. The majority does not support this argument with any case law when it comes to spousal support claims.[36]

The lead opinion then asserted that not only are parent’s privileged health records a relevant factor in every child custody and spousal support claim, without an express challenge, but also that a parent’s medical information is excepted from the physician-patient privilege when a claim is filed because the information is causally or historically related to the issues in the claim. To support this understanding the majority again points to Gill, however, the Gill court had improperly summarized how the exception to the privilege statute had been applied in Ohio case law.

The Gill court had properly demonstrated the drug dependency was a mental injury that had been put at issue during the civil action; because the injury was relevant to the custody claim, the exception test had been met. The communications about that injury were therefore no longer privileged. Unfortunately, the Gill court then improperly summarized Neftzer v. Neftzer in the following statement: “we have also held a party seeking custody of a child in a divorce action makes his or her mental and physical condition an issue to be considered by the court in awarding custody and the physician-patient privilege does not apply.”[37] However, the Neftzer court had specifically held an in-camera inspection of the medical records was required  “to determine which documents were discoverable…[and] only those deemed to be causally or historically related to physical or mental injuries that [were] relevant to the issues in the case [would be] discoverable,” therefore, Neftzer did not hold that the physician-patient privilege was waived as soon as a party filed a claim for custody.[38]

The Gill court then, under the improper summary of Neftzer, simply concluded that the “counterclaim seeking custody constituted a waiver of the physician-patient privilege.”[39] Therefore, the majority relied on Gill to support the proposition that a party waives their privilege upon filing a custody or spousal support claim, and Gill had improperly summarized Neftzer where Neftzer had actually correctly stated the privilege would only be waived after applying the correct statutory test and meeting the requirements of the test.[40]

Belinda Friedenberg relied on Sweet v. Sweet to support her argument that the records had never been found to causally or historically relate to a mental injury relevant to the claims and were therefore improperly released. The majority rejected the use of the case and incorrectly summarized the case as having held that the trial court had erred and released health records “without first… determin[ing] whether the information was casually or historically related to issues in the case.”[41] However, the Sweet court actually said the records request had not made “…reference to any particular medical condition related to custody issues.” Therefore an in-camera hearing was necessary to determine which medical records were discoverable.[42] The opinion then immediately cited Neftzer, again quoting the language missing from the majority’s summary of this case: “…only those [records] deemed to be causally or historically related to physical or mental injuries that are relevant to the issue in the case are discoverable.”[43] The lead opinion summarized Sweet to support the claim that the records only need relate to the issues in the case to be excepted from the privilege, but the Sweet court clearly required that the records needed to be related to injuries that were also relevant to the issues in the case before the exception would be triggered.[44]

The majority correctly held the trial court must apply R.C. 2317.02(B)(3)(a) when determining whether privileged physician-patient commutations can be excepted from the privilege and released in domestic relations claims for custody or spousal support.[45] However, the majority did not then follow this statement with an analysis demonstrating how the lower courts had applied the correct statutory test and reached the conclusion that the documents could be appropriately released.

Immediately after telling the trial courts to follow R.C. 2317.02(B)(3)(a), which states the documents must “relate causally or historically to physical or mental injuries that are relevant to issues… in the civil action”, the Court then applied a different version of the statute to the facts of the case.[46] Beginning with:

In recognition of the R.C. 2317.02(B)(3)(a) limitation of physician testimony to communications that relate causally or historically to issues in the divorce proceedings, the trial court ordered that the records…be submitted to the court for in camera inspection to determine whether the records were related to issues of custody or spousal support.[47]

The majority incorrectly summarized the language of the statute, once again, and determined there was nothing in the record to demonstrate that the documents released were not “causally or historically related to the issues in this case”.[48] The lower court’s orders stated there were documents relevant to the claims but never specified how the documents were relevant; the majority held the release of all of Belinda’s mental health records was appropriate because the lower courts had somehow found them relevant.[49] The lead opinion does not conclude, as they instructed trial courts to do in their holding, that the documents released were ever found to be causally or historically related to mental injuries that were also related to the issues in the case.

The lead opinion went through a long analysis in support of two propositions: 1) that the Ohio custody and spousal support statutory language makes a parent’s mental and physical conditions relevant factors to be considered the moment they file either claim, and relevance does not depend on an express challenge to a party’s health condition which would limit their ability to parent or work[50], and 2) that a parent waives their physician-patient privilege right by filing either claim and as long as the records are deemed relevant to the issues, the custody or support claim, then the records can appropriately be released.[51]  The majority ignored the fact that the Ohio custody and support statutes tell the court to consider “relevant factors” and then list mental and physical conditions as possible relevant factors to be considered; mental and physical conditions are not always going to be relevant factors in every custody or spousal support claim.[52]

The lead opinion then proceeded to use Ohio case law in support of both propositions. However, the cases the court relied on included situations where a party’s mental injury had been put at issue to expressly challenge the party’s ability to parent.[53] Further, the cases concluded, based on the correct statutory language, that a parent would only lose their right to the physician-patient privilege as to communications that causally or historically related to a physical or mental injury that had been put at issue during the case and the injury was also found relevant to the claim. Even then only communications that related to the injury were discoverable.[54] It remains a mystery how the majority failed to realize they argued, throughout the entire opinion, against the statutory language they ended up holding must be applied, and then failed to apply the correct language themselves when concluding the documents had been properly released in this case.

V. Conclusion

All of this leaves parents who wish to seek custody or spousal support in Ohio unsure of whether their personal, privileged communications with their physicians, unrelated to the proceedings, will be released inappropriately. When advocating for a client in a divorce case, with claims of custody or spousal support, the holding in Torres Friedenberg v. Friedenberg should be used to fight the unlawful release of privileged communications. By applying the statute, the inappropriate release of personal private privileged records can be prevented.

[1] Jaffee v. Redmond, 518 U.S. 1, 10 (1996).

[2] Torres Friedenberg v. Friedenberg, 161 Ohio St.3d 98, 2020-Ohio-3345, 161 N.E.3d 546 (2020).

[3] See Jaffee, 518 U.S. at 11.

[4] See generally id. at 11-12.

[5] See Friedenberg, 2020-Ohio-3345 at ¶15 (“R.C. 2317.02(B)(1) prohibits, except in limited circumstances, a physician from testifying ‘concerning a communication made to the physician * * * by a patient in that relation’ or concerning the physician’s advice to a patient. Communications between a licensed psychologist and a client are subject to the same protections as communications between a physician and a patient. R.C. 4732.19.”)

[6] Id. at ¶ 3.

[7] Id. at ¶ 4.

[8] Id. at ¶ 5.

[9] Id. at ¶¶ 5, 15.

[10] Id. at ¶¶ 5, 19-20 (“Here, we are concerned with R.C. 2317.02(B)(1)(a), which states that the privilege does not apply and that a physician may be compelled to testify [i]n any civil action [and] in accordance with the discovery provisions of the Rules of Civil Procedure in connection with a civil action * * *(iii) [i]f a medical claim, dental claim, chiropractic claim, or optometric claim, * * * an action for wrongful death, any other type of civil action, or a claim under Chapter 4123. of the Revised Code is filed by the patient * * *…triggering the statutory exception is not the end of the analysis. R.C. 2317.02(B)(1)(a) states that physician testimony may be had only ‘in accordance with the discovery provisions of the Rules of Civil Procedure,’ which include the requirement of relevance, see Civ.R. 26(B)(1). And when R.C. 2317.02(B)(1)(a)(iii) applies, ‘a physician may testify or be compelled to do so only as to a communication that related causally or historically to physical or mental injuries relevant’ in the civil action filed by the patient…;see also R.C. 2317.02(B)(3)(a).”)

[11] Id. at ¶¶ 30, 32 (O’toole, J., dissenting)

[12]  Brief of Appellant at 15, Torres Friedenberg v. Friedenberg, 161 Ohio St.3d 98, 2020-Ohio-3345, 161 N.E.3d 546 (No. 2019-0416)

[13] Id. at ¶ 18. 

[14] Id. at ¶ 9.

[15] Magistrate’s Order, Torres Friedenberg v. Friedenberg, 161 N.E.3d 546, 2020-Ohio-3345, 161 N.E.3d 546 (No.16DR136) (Nov. 1, 2017).

[16] Torres Friedenberg v. Friedenberg, 2020-Ohio-3345 (11th Dist. Lake, No. 2019-0416) ¶¶ 9-10.

[17] Id. at ¶¶ 13-14.

[18] Id. at ¶ 31 (O’toole, J., dissenting).

[19] Id. at ¶¶ 30-33.

[20] Id.

[21] Id. at ¶28 (“When allocating parental rights and responsibilities, a trial court must take into account the best interests of the children, R.C. 3109.04(B)(1), and in doing so, it must consider ‘all relevant factors, including * * * (e) [t]he mental and physical health of all persons involved,’ R.C. 3109.04(F)(1). R.C. 3105.18(C)(1)(c) similarly requires a court to consider the parties’ ‘physical, mental, and emotional conditions’ when determining whether spousal support is appropriate and reasonable.”)

[22] Id. at ¶ 35.

[23] Id. at ¶ 35.; Ohio Rev. Code Ann. § 2317.02 (B)(3)(a) (West 2020) (“If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(a)(jjj) of this section, a physician, …may be compelled to testify or to submit to discovery…only as to communications made to the physician…by the patient in question… that related causally or historically to physical or mental injuries that are relevant to issues in the… civil action…”)

[24] Id. at ¶ 38-39.

[25] Id. at ¶ 48 (DeWine, J., dissenting); See supra note 20.

[26] See Friedenberg, 2020-Ohio-3345 at ¶ 48 (DeWine, J., dissenting); See supra note 20.

[27] Id. at ¶¶ 52-53 (DeWine, J., dissenting).

[28] Id. at ¶ 46 (DeWine, J., dissenting) (emphasis added).

[29] Id. at ¶ 54.

[30] Id. (quoting Gill v. Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180 ¶ 18).

[31] Gill v. Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180 ¶¶ 4, 8.

[32] Id. at ¶ 18 (emphasis added).

[33] Id. (emphasis added).

[34] Id.

[35] Id.

[36] See Friedenberg, 2020-Ohio-3345 at ¶ 29.

[37] Gill v. Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180 ¶ 19 (citing Neftzer v. Neftzer, 140 Ohio App.3d 618, 748 N.E.2d 608 (2000)).

[38] Neftzer v. Neftzer, 140 Ohio App.3d 618, 622, 748 N.E.2d 608, 612 (2000) (quoting Nester v. Lima Mem. Hosp., 139 Ohio App.3d 883, 887, 2000-Ohio-1916, 745 N.E.2d. 1153, 1156).

[39] See Gill, 8th Dist. Cuyahoga No. 81463, 2003-Ohio-180 ¶ 21.

[40] See supra, text accompanying note 47.

[41] See Friedenberg, 2020-Ohio-3345 at ¶ 31 (citing Sweet v. Sweet, 11th Dist. Ashtabula No. 2004-A-0062, 2005-Ohio-7060 ¶ 16)).

[42] Sweet v. Sweet, 11th Dist. Ashtabula No. 2004-A-0062, 2005-Ohio-7060 ¶ 16 (emphasis added).

[43] Id. at ¶ 16 (quoting Neftzer v. Neftzer, 140 Ohio App.3d 618, 622, 748 N.E.2d 608, 612 (2000)).

[44] See Sweet, 2005-Ohio-7060 ¶ 16.

[45] See supra, note 23.

[46] See Friedenberg, 2020-Ohio-3345 at ¶¶ 35-36; See supra, note 23.

[47] Id. at ¶ 36.

[48] Id. at ¶ 38,

[49] Id.

[50] See supra, notes 35-42 and accompanying text.

[51] See supra, 44-60 and accompanying text.

[52] See supra, 27-30 and accompanying text.

[53] See supra, note 44 and accompanying text.

[54] See supra, notes 45-54 and accompanying text.

En Banc in the Sixth Circuit: A Rarely Used, but Important Procedure

Photo by Bill Dolak on Flickr

Bailey Wharton, Associate Member, University of Cincinnati Law Review

I. Introduction

When most people appear in federal court, they try their cases before a single judge in district court or before a three-judge panel in the circuit court of appeals. Rarely, though, do parties have their cases heard by the full court of judges, or what is more commonly known as an ‘en banc court.’ While a highly infrequent occurrence, cases heard en banc often involve some of the most judicially significant issues. Because en banc opinions help clarify “the landscape of the circuit’s law [and] magnify ideological fractures within the court,” it is important to thoroughly understand what the procedure is, how it works, and how it is utilized.[1]

Part II of this article will provide a brief overview of the federal rule and Sixth Circuit local rules on en banc procedure, as well as when and how U.S. circuit courts may invoke the en banc procedure. Part III will explore the Sixth Circuit’s use of en banc procedure during the last four years and will detail the types of cases that may be more susceptible to en banc rehearings in the Sixth Circuit in the future.

II. Background

A. What is the En Banc procedure?

‘En banc,’ a legal term of art derived from French, translates to ‘on the bench.’ Typically, in the U.S. Circuit Courts of Appeal, cases are heard by panels consisting of three circuit judges.[2]  However, there are certain situations that necessitate a case to be heard en banc. In an en banc panel, all active circuit court judges sit together to hear the case.[3] The only exception to this is the Ninth Circuit which, due to its size (with 29 active circuit judges plus 18 senior circuit judges), sits eleven randomly selected judges to serve on its en banc panels.[4]

28 U.S.C. § 46(c) provides circuit courts with the statutory authority to hear cases en banc.[5] Federal Rule of Appellate Procedure (“FRAP”) 35 sets out the framework for and the processes of how the federal circuit courts handle en banc hearings.[6] Sometimes, Circuit Courts may introduce their own local rules of en banc procedure as a supplement to or replacement for the FRAP when the FRAP is silent on certain aspects of en banc procedure.[7] For example, the scope and effect of an order granting a petition for a rehearing en banc is left to be determined by each circuit court’s own local rules.[8] In the Sixth Circuit, the effect of granting a petition for rehearing en banc “vacates the previous opinion and judgment of the court, stays the mandate, and restores the case on the docket as a pending appeal.”[9]

B. When is it appropriate to grant an en banc hearing?

When to grant a rehearing en banc is entirely within the discretion of the circuit court judges. Fed. R. App. P. 35(a) states that “[a]n en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”[10] Parties may petition the court for an en banc hearing, or the court may sua sponte order a case to be reheard en banc by vote of a majority of the circuit judges in regular active service.[11]

In the Sixth Circuit, an en banc rehearing is not appropriate in matters regarding “alleged errors in the determination of state law or in the facts of the case…, or errors in the application of correct precedent to the facts of the case.”[12] Rather, the Sixth Circuit views an en banc petition as “an extraordinary procedure intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent.”[13] Under 6 Cir. I.O.P. 35(e), a poll to rehear a case en banc may be requested either by “any active judge or any member of the original hearing panel…after a party filed a petition for rehearing en banc” or by sua sponte request of “any member of the en banc court…before a party files an en banc petition.”[14]

III. Discussion

A. Comparing the Sixth Circuit’s Use of En Banc

Between January 1, 2018 and September 7, 2021, the Sixth Circuit only granted seven petitions for rehearings en banc.[15] In fact, the Sixth Circuit granted two en banc petitions in 2018, two in 2019, two in 2020, and only one so far in 2021.[16] Upon further investigation, the Sixth Circuit’s seven en banc orders turn out to be the median amount of en banc orders granted among ten other Circuit Courts reviewed.[17] Four circuits granted six or fewer en banc orders in the same timeframe, one circuit granted seven en banc orders, and five circuits granted ten or more en banc orders. The breakdown is as follows:[18]

First Circuit:               6

Second Circuit:           3

Third Circuit:              7

Fourth Circuit:            15

Fifth Circuit:               26

Sixth Circuit:              7

Eighth Circuit:            10

Ninth Circuit:              35

Tenth Circuit:             4

Eleventh Circuit:        19

Federal Circuit:           3

Although each circuit must abide by the same federal rules governing en banc petition standards and procedure, the rules also provide significant discretion to each set of circuit judges to decide if and when they will grant a petition for en banc hearing or sua sponte order a case to be heard en banc. As a result, it is ultimately up to the makeup of each circuit and the circuit judges’ collective views on en banc hearings. As the above data shows, some circuits grant en banc orders at a much higher frequency than others.

B. When is the Sixth Circuit using the En Banc procedure?

All seven en banc orders granted by the Sixth Circuit between January 1, 2018 and September 7, 2021 were granted via vote on a party’s petition for rehearing en banc; the circuit did not sua sponte order any en banc rehearings.[19] Six of the seven cases filed petitions requesting a rehearing en banc pursuant to both F. R. App. P. 35(b)(1)(A)—arguing that the Court of Appeals panel opinion either “conflicts with a decision of the Supreme Court” or with another Sixth Circuit opinion or that full court review is “necessary to secure and maintain uniformity” of Sixth Circuit decisions—and F. R. App. P. 35(b)(1)(B)—arguing that “the proceeding involve[d] … questions of exceptional importance” or that the Court of Appeals panel created a circuit split.[20]

When the court issues its order granting a rehearing en banc, it is hard to know exactly why the judges felt a particular case was worthy of being heard en banc because the order typically does not explain the judge’s reasoning for granting the petition. However, sometimes a judge will write a dissent to the grant of en banc hearing. In these cases, the dissent opinion offers some insight into how that particular judge feels about rehearing cases en banc or about their concerns regarding the decision to utilize the en banc procedure. In April of this year, Sixth Circuit Judge Karen Nelson Moore issued a dissent from the grant of initial hearing en banc in Bristol Reg’l Women’s Ctr., P.C. v. Slatery, a case involving a constitutional challenge to a Tennessee state statute introducing a 48-hour waiting period for abortions.[21]

Unlike a traditional en banc rehearing, which occurs after the original three-judge panel issues a decision, in rare instances, a circuit court can grant an order calling for an initial hearing en banc “prior to panel assignment, but only in cases of public importance which have attracted much attention.”[22] In her dissent, Judge Moore warned that “by granting that petition, a majority of this court has sent a dubious message about its willingness to invoke [this] extraordinary—and extraordinarily disfavored—procedure in ideologically charged cases.”[23] Judge Moore also noted that “[t]oday we could have sent a message affirming this court’s impartiality and independence…[and] [i]n endorsing this game of procedural hopscotch, a majority of the en banc court has embarked on an unsettling course.”[24]

Judge Moore’s dissent was the only dissent included in any of the seven en banc orders in the Sixth Circuit in the last four years. As a result, it is the only real window into how the Sixth Circuit judges view en banc procedure, but more specifically, about how the judges view an initial hearing en banc. While it is admittedly a small sample size, it is nonetheless interesting to see that at least one judge, but probably more, view these en banc hearings as “extraordinarily disfavored” procedures.[25] What is even more interesting is that in her dissent, Judge Moore lamented the fact that “[i]n the not-so-distant past we resisted the urge to wield this court’s en banc authority so indiscriminately…[but] [a]las, it seems to me that we have moved on to sorrier times.”[26]

It is therefore not very surprising that the Sixth Circuit does not grant an exorbitant amount of en banc orders.

C. Is there a pattern to the types of cases the Sixth Circuit grants en banc orders?

Since January 1, 2018, the Sixth Circuit has ordered en banc hearings and issued en banc opinions on seven cases. The en banc court has heard two civil rights abortion cases, two death penalty habeas petition cases, one case brought under 42 U.S.C. 11603(b) of the International Child Abduction Remedies Act, one case involving whether the U.S. Sentencing Commission exceeded its exercise of power in criminal sentencing, and one case involving whether a search warrant affidavit provided the requisite probable cause to issue a search warrant.[27]

Despite the relatively small sample size, it appears that the Sixth Circuit is not afraid to take up politically charged and newsworthy issues. Abortion has always been and remains to be a hot political and social topic, and states regularly enact new legislation that almost always finds its way to the courts in one way or another.[28] Due to the copious amount of legislative and judicial history surrounding abortion, it would not be a surprise for any party that receives an unfavorable Court of Appeals panel decision to file a petition for rehearing en banc, arguing a conflict with a Supreme Court decision on abortion or arguing a question of exceptional importance due to the highly controversial nature of the issue. This creates ample opportunities for the Sixth Circuit to take up such a case should the majority feel so inclined.

D. How could the current political make-up of the Sixth Circuit judges determine the types of cases the court may order en banc in the future?

Currently, the Sixth Circuit has sixteen active judges and fourteen senior judges.[29] Of the active judges, eleven were appointed by a Republican administration and five were appointed by a Democrat administration.[30] Of the senior judges, eleven were appointed by a Republican administration and three were appointed by a Democrat administration.[31] While the political party of the President appointing a federal judge does not always reflect the appointed judge’s personal beliefs or influence their rulings, it does appear that the Sixth Circuit leans predominately conservative. As a result, it could make it quite easy for a conservative majority of judges to dictate the type of cases and issues they may want to hear en banc. This was the case in the Bristol Reg’l abortion case. According to Judge Moore’s dissent to the order granting an initial hearing en banc, she states that after the district court found Tennessee’s 48-hour waiting period law “unconstitutional and permanently enjoin[ed] its enforcement” and the three-judge panel denied plaintiff’s request for a stay pending appeal in a two-to-one opinion, Judge Thapar, the lone dissenting judge, “so vehemently” disagreed with the panel decision that he “urg[ed] Appellants to seek initial hearing en banc.”[32] This example demonstrates how easily a conservative Sixth Circuit judge can leverage the majority to order an en banc hearing on a case or issue if they want.  

IV. Conclusion

Although the use of en banc procedure in the Sixth Circuit remains fairly minimal compared to many other circuits, the Sixth Circuit’s conservative majority appears to hold the upper hand in determining whether or not employ the procedure in politically or ideologically charged cases. This could significantly shape the future legal and judicial fields in Michigan, Ohio, Kentucky, and Tennessee.

The en banc procedure clearly serves an important purpose within the function of the U.S. Court of Appeals. However, to preserve the integrity of the procedure, and of the courts in general, it is best used sparingly. It begins to lose its importance and prestige when it is manipulated to be used primarily for political purposes. The U.S. judicial system is premised on the idea of an independent judiciary, outside of political control. The more politicized the courts become, the further they stray from their intended purpose.

[1] Pierre H. Bergeron, En Banc Practice in the Sixth Circuit: An Empirical Study, 1990–2000, 68 Tenn. L. Rev. 771, 771 (2001).

[2] 28 U.S.C. § 46(b).

[3] Glossary of Legal Terms, United States Courts, [] (last visited Sept. 16, 2021); 21 Moore’s Federal Practice—Civil § 335.11 (Matthew Bender 3d ed. 2021).

[4] Glossary of Legal Terms, supra note 3; The Judges of this Court in Order of Seniority, United States Courts for the Ninth Circuit,  [] (last updated May 2021); see also Moore’s Federal Practice—Civil § 335.11, supra note 3.

[5] F. R. App. P. 35 advisory committee’s note (“Cases and controversies shall be heard and determined by a court or panel of not more than three judges…, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service.”).

[6] F. R. App. P. 35.

[7] Moore’s Federal Practice—Civil § 335.11, supra note 3.

[8] Id.

[9] 6 Cir. R. 35(b).

[10] F. R. App. P. 35(a)(1)-(2).

[11] See F. R. App. P. 35(b) (“(1) The petition must begin with a statement that either: (A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed…; or (B) the proceeding involves one or more questions of exceptional importance…”); Moore’s Federal Practice — Civil § 335.11, supra note 3; see also Sparks v. Duval Cty. Ranch Co., 604 F.2d 976, 979 (5th Cir. 1979) (“no motion is required for us to hear or rehear a cause en banc”), aff’d sub nom. Dennis v. Sparks, 449. U.S. 24 (1980).

[12] 6 Cir. I.O.P. 35(a).

[13] Id.

[14] 6 Cir. I.O.P. 35(e).

[15] Search Results for Published Opinions dated from January 1, 2018, to September 7, 2021, United States Court of Appeals for the Sixth Circuit, [] (last visited Sept. 7, 2021).

[16] Id.

[17] Data from the United States Court of Appeals District of Columbia Circuit and the United States Court of Appeals for the Seventh Circuit was not included in the comparison due to lack of practical access to information needed to determine how many orders for en banc rehearings the Circuits granted.  

[18] First Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, (last visited Sept. 9, 2021); Second Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, (last visited Sept. 9, 2021); Third Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, (last visited Sept. 9, 2021); En Banc Cases, United States Court of Appeals for the Fourth Circuit, [] (last visited Sept. 7, 2021); Fifth Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, (last visited Sept. 9, 2021); Search Results for Published Opinions dated from January 1, 2018 to September 7, 2021, United States Court of Appeals for the Sixth Circuit, [] (last visited Sept. 7, 2021); Opinions Search by Month/Year, United States Court of Appeals for the Eighth Circuit, [] (last visited Sept. 7, 2021); Opinions, United States Court of Appeals for the Ninth Circuit, [] (last visited Sept. 7, 2021); Tenth Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, (last visited Sept. 9, 2021); En Banc Poll Orders, United States Court of Appeals for the Eleventh Circuit, [] (last visited Sept. 7, 2021); Federal Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, (last visited Sept. 9, 2021).

[19] Taglieri v. Monasky, No. 16-4128, 2018 U.S. App. LEXIS 5408, at *1 (6th Cir. Mar. 2, 2018); United States v. Christian, 904 F.3d 421, 422 (6th Cir. 2018); United States v. Havis, 921 F.3d 628, 628 (6th Cir. 2019); Preterm-Cleveland v. Himes, 944 F.3d 630, 631 (6th Cir. 2019); Hill v. Anderson, 964 F.3d 590, 590 (6th Cir. 2020); Taylor v. Simpson, 980 F.3d 1117, 1117 (6th Cir. 2020); Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 993 F.3d 489, 489 (6th Cir. 2021).

[20] F. R. App. P. 35(b)(1)(A)—(B).

[21] 993 F.3d at 489; Civil Cover Sheet 1, ECF No. 1–5 (constitutional challenge to state statutes concerning abortion).

[22] Judah I. Labovitz, Note, En Banc Procedure in the Federal Courts of Appeals, 111 U. Pa. L. Rev. 220, 233 (1962) (citing Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 91, 93 (1954)).

[23] Bristol Reg’l, 993 F.3d at 490.

[24] Id. at 491–492.

[25] Id. at 491.

[26] Id. at 491.

[27] See generally Preterm-Cleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021); Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 7 F.4th 478 (6th Cir. 2021); Hill v. Shoop, No. 14–3718, 2021 WL 3701151 (6th Cir. Aug. 20, 2021); Taylor v. Jordan, No. 14–6508, 2021 WL 3719354 (6th Cir. Aug. 23, 2021); Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018), aff’d, 140 S. Ct. 719 (2020); United States v. Havis, 927 F.3d 382 (6th Cir.), reconsideration denied, 929 F.3d 317 (6th Cir. 2019); United States v. Christian, 925 F.3d 305 (6th Cir.), cert. denied, 140 S. Ct. 414 (2019).

[28] See generally Elyssa Spritzer and Nora Ellmann, State Abortion Legislation in 2021, Center for American Progress (Sept. 21, 2021, 9:00 AM), [] (discussing the significant amount of abortion legislation enacted in 2021); Texas Abortion: Doctor Sued in first known challenges of new law, BBC [] (last visited Sept. 21, 2021).

[29] U.S. Court of Appeals for the Sixth Circuit: Judges, Federal Judicial Center, [] (last visited Sept. 21, 2021).

[30] Id.

[31] Id.

[32] Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 993 F.3d 489, 490 (6th Cir. 2021).

Fourth Circuit Issues ‘Recipe for National Inaction on Gun Violence’ in Wrongly Striking Down Gun Control Measure Only to be Vacated for Mootness

“And More Guns” by maxually is licensed under CC BY-NC 2.0

Max Londberg, Associate Member, University of Cincinnati Law Review

I. Introduction

For more than half a century, a collection of federal statutes and regulations have prohibited federal firearms licensees from selling handguns and handgun ammunition to 18-, 19-, and 20-year-olds.[1] Congress enacted the Omnibus Crime Control and Safe Streets Act in 1968 in an effort to curb gun violence.[2] The legislation has withstood challenges brought under the Second Amendment.[3] But in July, the Fourth Circuit, in a split decision, became the first such court to break with longstanding precedent by declaring the laws unconstitutional.[4]

The holding in Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco and Explosives created a circuit split, as the Fifth Circuit previously upheld the laws’ constitutionality.[5] However, the same panel of judges vacated the decision less than three months later.[6] The last remaining plaintiff turned 21, rendering her claim moot.[7] The Fourth Circuit’s merit decision, apart from its tenuous analysis, was initially deemed a “recipe for national inaction on gun violence,” and it could still inspire such inaction in a future case.[8]

This piece first details the legal and factual background of Hirschfeld. It then examines the flaws in the opinion.

II. Background

A. Factual Backdrop

Natalia Marshall sued the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), claiming the laws violate the Second Amendment.[9] Marshall sought a handgun for protection against an abusive ex-boyfriend and against strangers in remote areas where she worked, but, given her age at the time, the laws prevented the purchase.[10] She preferred to buy from a federally licensed dealer for its reputation and selection.[11] She considered a handgun to be the most effective self-defense tool.[12]

Marshall challenged laws passed in 1968 by a Congress that had conducted a years-long investigation of gun violence that included statistical analysis and input from law enforcement.[13] Congress concluded that the ease of access to guns—particularly handguns—by juveniles was contrary to the public interest.[14]

B. Legal Analysis: The Two-Step Framework

In 2012, the Fifth Circuit became the first circuit court to rule on the constitutionality of the challenged laws after Dist. Of Columbia v. Heller.[15] In Heller, the United States Supreme Court held a ban on in-home handgun possession violated the Second Amendment.[16] Despite its ruling, the Heller Court “emphasized that the right secured by the Second Amendment is not unlimited.”[17] Heller even stressed that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . or laws imposing conditions and qualifications on the commercial sale of arms.”[18]

The Fifth Circuit, hearing a claim that Heller provided sufficient support to invalidate the ban on selling handguns to 18-, 19-, and 20-year-olds, adopted a two-step framework—previously adopted by other courts of appeals—to analyze the limited handgun-sale prohibition.[19] The first inquiry asks whether the challenged measure regulates conduct that falls “within the scope of the Second Amendment guarantee.”[20] If the inquiry in step one is answered in the affirmative, the second step calls for determination of the appropriate level of scrutiny, confined to intermediate or strict, and to analyze the law.[21] Intermediate scrutiny is a test used to “determine a statute’s constitutionality.”[22] To be constitutional under this test, a law must: “further an important government interest” and “do so by means that are substantially related to that interest.”[23] Strict scrutiny is similar but more rigorous, asking whether a law furthers a “compelling governmental interest” and whether the legislature “narrowly tailored the law to achieve that interest.”[24]

The Fifth Circuit stated it was “inclined” to uphold the prohibition on handgun sales to young people at step one of its analysis after determining that gun control measures, including measures disarming certain groups, existed even before the Revolution; that scholarly interpretations suggested the Founders would have supported limiting or banning firearm ownership by those under 21; and that nineteenth- and twentieth-century laws restricted the ability of people under 21 to buy guns.[25] But despite its inclination, the Fifth Circuit, “in an abundance of caution,” proceeded to step two.[26]

In step two, the Fifth Circuit deemed the laws to be a less severe burden on Second Amendment rights than should trigger strict scrutiny, in part because the laws permit 18-, 19-, and 20-year-olds to possess any type of firearm, even handguns, and to buy long guns from federally licensed dealers.[27] In finding the laws survived intermediate scrutiny, the Fifth Circuit found a reasonable means-ends fit between the laws and an important government objective—curbing violence among young people under 21.[28] The court deemed the Act a “calibrated, compromise approach,” remarking on the modest nature of the legislation.[29] Congress’s investigation revealed federally licensed dealers were a “central conduit” of handgun traffic to minors, that handguns were easy to conceal and “principally used” in serious crimes, and that minors accounted for 64 percent of total arrests for serious crimes.[30] Thus, the Fifth Circuit held the restriction on handgun sales from federally licensed dealers constituted a “reasonable means-ends fit” between the law and its objective, as the former was appropriately adapted for accomplishing the latter.[31]

The Fourth Circuit disagreed.[32] Its decision was ultimately vacated after the final remaining plaintiff turned 21 (her age had been listed as younger in some court documents).[33] But in vacating, the court stated the decision would remain available as a “persuasive source.”[34]

In its merit decision, the court first found that the regulations are not “presumptively lawful” as described by Heller because they do not simply limit gun purchases by, for example, requiring licensing, but instead the laws fully ban purchases.[35] The Fourth Circuit next moved to step one, finding 18-to-20-year-olds are protected under the Second Amendment.[36] In support, the court emphasized that every militia law around the time of the ratification of the Second Amendment required 18-year-olds to join the militia and “bring their own arms.”[37] The court also used First Amendment jurisprudence as a guidepost, finding that though minors are subject to qualifiers on their speech, their speech rights are not eliminated altogether.[38] The court stated: “[T]ime, place, and manner regulations are a part of everyone’s First Amendment rights regardless of age,” and “the existence of the right is not limited by age.”[39]

In step two, the Fourth Circuit did not decide which level of scrutiny to apply as it found the laws “do not even pass intermediate scrutiny.”[40] The Fourth Circuit concluded the laws were both underinclusive and overinclusive.[41] Less than 1 percent of 18-, 19-, and 20-year-olds commit violent crimes, so the Fourth Circuit concluded laws that restrict all members of that age group are overinclusive.[42] As for underinclusivity, the court stated that though “almost all” firearms reach minors via licensed dealers (even if indirectly), that fact does not support a “link between handgun purchases directly from licensed dealers and gun violence committed by young adults.”[43] The court further found that few offenders purchase weapons from a federally licensed dealer, in part due to background-check requirements.[44] The laws encourage youths to purchase guns from illegal or unlicensed sources.[45] And finally, studies do not definitively show that the laws influence youth crime rates.[46]

III. Discussion

The Fourth Circuit’s decision to invalidate the prohibition on handgun sales is flawed. Its decision, and the earlier decision in the Fifth Circuit, indicates that the next court battle on this issue will likely hinge on step two. This section will first address the Fourth Circuit’s step-one analysis, then its step-two analysis.

The Fourth Circuit correctly stated the Second Amendment has no explicit age limit, but it also claimed that the “most analogous constitutional rights [to those conferred by the Second Amendment] apply equally to everyone.”[47] The Fourth Circuit fairly relied on First Amendment jurisprudence to inform its Second Amendment analysis.[48] But the court overstepped in contending student speech jurisprudence supports its proposition that constitutional rights apply equally to everyone. Guns are not words, but both can have significant effects on others, and so both are subject to constitutional constraints that apply only to young people. The Fourth Circuit ignored substantial qualifications to First Amendment rights applied only to students in schools. In invoking Tinker v. Des Moines Indep. Cmty. Sch. Dist. to contend student free speech rights are “not limited by age,” the Fourth Circuit elides the more recent student free speech cases of Morse v. Frederick and Bethel Sch. Dist. No. 403 v. Fraser.[49] In the latter cases, the Supreme Court extended restrictions established by Tinker by upholding prohibitions on students from advocating illegal drug use and using lewd or indecent speech, respectively.[50] These speech laws curb minors’ ability to exercise their First Amendment rights in ways that are unique to minors. Like the Second Amendment, no explicit age limit exists in the First Amendment, yet this caselaw still exists. Contrary to the Fourth Circuit’s contention that the First Amendment is not limited by age, adults are not subject to the speech restrictions established by Tinker, Morse, and Fraser.

In other words, in support of its proposition that constitutional rights apply equally regardless of age, the Fourth Circuit cites a case that only limits the rights of students, and it omits others that further restrict those rights.[51] When minors age out of school, they inherit expanded free speech rights, just as Congress envisioned minors could inherit expanded Second Amendment rights at 21.

Further, the court extensively details militia laws, writing that they support that 18-year-olds are protected by the Second Amendment.[52] But the handgun purchase ban would not have prevented youths from complying with the militia laws invoked by the court; 18-, 19-, and 20-year-olds can still purchase long guns, can still receive any type of gun as a gift, and can buy any type of gun in a private transaction.[53] The ban falls far short of eliminating young people’s Second Amendment rights, just as speech restrictions in school do not eliminate students’ First Amendment rights.

The Fourth Circuit’s analysis is just as unconvincing in step two. The court relied on questionable reasoning to reach its conclusion that the federal laws restricting handgun sales were both underinclusive and overinclusive.

First, the laws are not underinclusive because the Fourth Circuit’s consideration of the laws’ effectiveness was too narrow.[54] The Hirschfeld dissent noted that Congress’s objective was not only to prevent harm from handguns used in crimes but also to prevent accidents and suicides involving handguns.[55] Children and young adults are at increased risk of death by accidental gun discharge.[56] Including such considerations makes Congress’s laws restricting handgun access even more reasonable.

Second, the laws are not overinclusive, as the Fourth Circuit’s statistical analysis is shortsighted. It pointed to a contemporary study finding only 11.8 percent of people in prison obtained their guns from a legal source.[57] And only about 0.3 percent of 18-, 19-, and 20-year-olds commit violent crime each year.[58] But, as the dissent noted, these statistics do not reflect the number of potential crimes averted because of the challenged laws, which were meant not only to hinder criminals’ access to weapons, but to make it “somewhat harder for law-abiding young adults to obtain handguns and to then turn, gun in hand, to crime in the first place.”[59]

Finally, the Fourth Circuit recently reaffirmed the proposition that courts must “accord substantial deference to the predictive judgments of [the legislature],” a fact that the Hirschfeld dissent emphasized but that seems overlooked by the majority.[60]

The dissent added that under intermediate scrutiny, when the justifications are “familiar and plausible, they need only be supported by minimal empirical evidence.”[61] These laws are both familiar and plausible, as all 50 states have implemented age-based restrictions on guns, many of which restrict possession rights to those under 21.[62]  

IV. Conclusion

In sum, the Fourth District’s reasoning was insufficient to invalidate (even if only temporarily) longstanding laws that modestly restrict handgun access to 18-, 19-, and 20-year-olds. It improperly relied on First Amendment jurisprudence for the proposition that certain constitutional rights apply to all equally. It failed to show the laws are both underinclusive and overinclusive. And it failed to pay deference to modest, conscientious legislation.

[1] Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 188 (5th Cir. 2012) (considering constitutionality of 18 U.S.C. §§ 922(b)(1) and (c)(1), 27 C.F.R. §§ 478.99(b)(1), 478.124(a), and 478.96(b)).

[2] Id. at 189. Notably, the laws do not preclude young people from possessing handguns, from purchasing handguns via private sales, or from purchasing rifles or other long guns from federally licensed merchants.

[3] See, e.g., id.

[4] Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 5 F.4th 407 (4th Cir. 2021), vacated, 2021 WL 4301564 (2021) [hereinafter Hirschfeld].

[5] Id. at 459 (Wynn, J., dissenting).

[6] Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 2021 WL 4301564 (2021).

[7] Id. at 2.

[8] Hirschfeld, 5 F.4th at 483 (Wynn, J., dissenting).

[9] Id. at 411 (majority opinion).

[10] Id.

[11] Id.

[12] Though not mentioned by either the Fourth or Fifth Circuits—which weighed contemporary gun safety research as well as congressional consideration of public safety when passing the laws in question—studies indicate firearm possession has little effect on possessors’ risk of criminal victimization—or may even increase their risk. See, e.g., Charles C. Branas et al., Investigating the Link Between Gun Possession and Gun Assault, 99 Am. J. of Pub. Health 2034 (2009) (finding individuals in possession of a gun were nearly 5 times “more likely to be shot in an assault than those not in possession”); David Hemenway & Sara J. Solnick, The epidemiology of self-defense gun use: Evidence from the National Crime Victimization Surveys 2007–2011, 79 Preventive Medicine 22 (2015) (finding a national crime victimization survey yielded “little evidence that [self-defense gun use] is uniquely beneficial in reducing the likelihood of injury or property loss”).

[13] Hirschfeld, 5 F.4th at 411.

[14] Id. at 412.

[15] Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 193 (5th Cir. 2012).

[16] Dist. of Columbia v. Heller, 554 U.S. 570, 635 (2008).

[17] Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 193 (internal quotations omitted).

[18] Id.

[19] Id. at 194. See also United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012) (adopting the two-step framework for deciding Second Amendment cases); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (adopting the two-step framework).

[20] Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 194.

[21] Id.

[22] Intermediate Scrutiny, Legal Information Institute, Cornell Law School, (last visited Sept. 24, 2021).

[23] Id.

[24] Strict Scrutiny, Legal Information Institute, Cornell Law School, (last visited Sept. 24, 2021).

[25] Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 200-03.

[26] Id. at 204.

[27] Id. at 206 (emphasis added).

[28] Id. at 209

[29] Id.

[30] Id. at 208.

[31] Id. at 208-09.

[32] Hirschfeld v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 5 F.4th 407, 452 (4th Cir. 2021).

[33] Jonathan H. Adler, Will Fourth Circuit Decision on Gun Rights of 18-20 Year Olds Become Moot? Reason (July 21, 2021, 1:00 PM), (discussing plaintiff’s varying age in court documents).

[34] Hirschfeld, 2021 WL 4301564, 2 (2021). But see 2021 WL 4301564 at 3 (stating persuasive value of vacated decision is “no more than the value of newspaper editorials”) (Wynn, J., concurring).

[35] Hirschfeld, 5 F.4th at 417-18 (noting also that Heller’s analysis counsels against immunizing laws from the Second Amendment because similar laws have long existed).

[36] Id. at 427.

[37] Id. at 428.

[38] Id. at 422.

[39] Id.

[40] Id. at 440.

[41] Id. at 452. See generally Stuart P. Green, Legal Moralism, Overinclusive Offenses, and the Problem of Wrongfulness Conflation, 14 Crim. L. & Phil. 417, 418 (2020) (defining an overinclusive law as one that prohibits “conduct that is not wrongful”); Hirschfeld,5 F.4th at 482 (Wynn, J., dissenting) (defining an underinclusive law as “ineffective or at least not as effective as it could be”).

[42] Hirschfeld, 5 F.4th at 445.

[43] Id. at 448 (emphasis added).

[44] Id. at 451-52.

[45] Id. at 451.

[46] Id. at 451.

[47] Id. at 440.

[48] Id. at 422.

[49] Id.

[50] Morse v. Frederick, 551 U.S. 393, 422 (2007) (stating a public school may restrict speech that could be reasonably interpreted as advocating illegal drug use) (Alito, J., concurring); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (“A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students”). See also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969) (holding student expression that “materially disrupts classwork or involves substantial disorder” may be proscribed).

[51] Tinker, 393 U.S. at 513; Morse, 551 U.S. at 422 (Alito, J., concurring); Fraser, 478 U.S. at 685.

[52] Hirschfeld, 5 F.4th at 430.

[53] See Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 190 (5th Cir. 2012).

[54] Hirschfeld, 5 F.4th at 468 (Wynn, J., dissenting).

[55] Id.

[56] Id. at 478.

[57] Id. at 449 (majority opinion).

[58] Id. at 481 (Wynn, J., dissenting).

[59] Id. at 473.

[60] Kolbe v. Hogan, 849 F.3d 114, 140 (4th Cir. 2017) (citation omitted).

[61] Hirschfeld, 5 F.4th at 465 (Wynn, J., dissenting) (internal quotations omitted).

[62] Id. at 478.

Protective Order Against Stalker Invalidated as Prior Restraint, but Reframing Future Orders May Appease Constitutional Concerns

“‘FREE SPEECH*'” by Newtown grafitti is licensed under CC BY 2.0

Max Londberg, Associate Member, University of Cincinnati Law Review

I. Introduction

In 2016 and 2017, two women in Mercer County, Ohio, endured disturbing abuse from a close relative, Jeffrey Rasawehr.[1] He wrote public messages accusing the women of involvement in their husbands’ deaths.[2] The women successfully sought a civil stalking protection order after a trial court found Rasawehr had violated Ohio’s menacing by stalking statute, R.C. 2903.211.[3] The Third District affirmed the trial court’s finding and its remedy, which included banning Rasawehr from “posting” about the women in online forums and from “posting about the deaths of [the women’s] husbands in any manner that expresses, implies, or suggests that [the women] are culpable in those deaths.”[4]

The Supreme Court of Ohio vacated as prior restraints the posting restrictions levied against Rasawehr.[5] Amici curiae supporting the women had earlier warned that vacating the restrictions would have a “devastating impact” on victims of stalking and “eviscerate the purposes and intent of all civil protection orders in the state.”[6]  Yet caselaw in other states may provide a roadmap for crafting future protective orders that pass constitutional muster.[7] Section II of this article will analyze the court’s opinion in Bey and introduce competing ideas. In Section III, it will detail why the Bey decision missed the mark before describing how, despite this adverse ruling to stalking victims, future courts could still fashion protective orders that encompass speech elements.

II. Background

A. Facts Considered by the Court

Joni Bey and Rebecca Rasawehr, Jeffrey Rasawehr’s sister and mother, respectively, reported to the trial court that Rasawehr had accused the women online of contributing to their husbands’ deaths.[8] Rasawehr also stated that Joni Bey was on Florida’s “Most Wanted” list.[9] He even hired a private investigator, who interrogated Joni Bey in her home about her husband’s death.[10]

The women filed petitions for a civil stalking protection order.[11] Ohio Revised Code §2903.211 prohibits menacing by stalking.[12] After finding Rasawehr violated the statute, the trial court prohibited Rasawehr from posting generally about the women in online forums and from implicating them in their husbands’ deaths.[13] The women reported loss of sleep, anxiety, unwanted attention from others in the community, and other effects resulting from Rasawehr’s stalking.[14]

The Supreme Court of Ohio noted that the stalking statute’s purpose is to prevent violence and to allow law enforcement officials to “act before a victim is harmed by a stalker.”[15] And the Ohio Domestic Violence Network, joined by others in an amici curiae brief, provided statistics showing nearly all victims of stalking experience adverse effects, even from “seemingly innocuous” contact by a stalker.[16] In addition, “victims are more likely to be re-abused if their [protective] orders bar abusive contact but not all contact.”[17]

B. The Court’s Legal Analysis

The Supreme Court of Ohio analyzed this issue in three phases.[18] The first phase considered whether the posting restrictions on Rasawehr were content-based or content-neutral.[19] The second phase considered whether the protective order prohibited speech integral to criminal conduct—one of several free speech exceptions.[20] The court held it did not absent a judicial determination that Rasawehr’s future expression would “necessarily be integral to criminal conduct.”[21] Such a determination would require a protracted criminal proceeding, but civil stalking protection orders are useful in part because they offer “proactive” safety measures before abusive behavior escalates.[22] Thus, waiting for both the criminal violation to occur and its subsequent prosecution would be antithetical to one goal of protective orders. Finally, the third phase considered whether the restrictions passed strict scrutiny. This blog will analyze phase one, as a different outcome in this phase would likely result in a lower level of scrutiny, and thus a higher chance that a restriction would be upheld.[23]

In phase one, the Bey court reasoned that, because the restrictions were triggered by the subject matter of Rasawehr’s speech (the women), they were content-based.[24] The court declined to follow Commonwealth v. Lambert, where a Pennsylvania intermediate court upheld a similar protective order as the one at issue in Bey.[25] The Lambert court held a restriction that prohibited an abuser from posting online about a woman was content-neutral as it was “not concerned with the content of [the abuser’s] speech but with, instead, the target of his speech, namely, [the victim].”[26] The Bey court countered by stating the target of speech “necessarily concerns the subject matter of speech.”[27]

In United States v. O’Brien, the Supreme Court reiterated that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”[28] But the Bey court held the posting restrictions against Rasawehr were not “merely incident to a regulation of conduct” but instead regulated expressive activity.[29]

III. Discussion

The Supreme Court of Ohio was likely correct in holding the prohibition on Rasawehr from posting about the women’s culpability in their husbands’ deaths was content-based; the women did not “seriously” dispute that finding.[30] But the court failed to properly consider the magnitude of Rasawehr’s conduct on the women. The court should have upheld the general posting prohibition. The Lambert decision provides a model. By centering the effect of the abuser’s actions on the victim, the court saw the issue as one of conduct, not speech:

An abuser’s mere posting of any reference to his or her victim on social media, regardless of content, is, thus, automatically considered targeting tantamount to making impermissible contact with the victim. For an adjudged abuser to refer to a victim in publicly trafficked electronic forums, for whatever reason, is to exercise control over the victim in public, thus perpetuating the abuse of the victim.[31]

The amici curiae supporting the women in Bey emphasized this blending of language and action where the Supreme Court of Ohio failed to. Their brief stated Rasawehr’s “‘speech’ is conduct (stalking)…”[32] The Ohio menacing by stalking statute itself supports this, as one element requires showing a person has engaged in a “pattern of conduct.”[33]

Recognizing this distinction—between prohibiting speech versus prohibiting conduct—could equip lower courts with an appropriate method for issuing constitutional protection orders in the future. A California Court of Appeals faced a similar challenge to a protection order as in Bey.[34] In R.D., the court considered a protective order that precluded the abuser from committing certain acts, rather than uttering certain things. The court thus found that: “To the extent the order limits P.M.’s speech, it does so without reference to the content of her speech.”[35] The restriction at issue did not “prohibit P.M. from making statements on any subject, as long as … the statements’ contents do not constitute illegal harassment.”[36] The R.D. court ultimately held the restriction was content-neutral and upheld its constitutionality.[37]

Reframing a protection order like that at issue in Bey into something more akin to the one considered in R.D. could bolster its constitutionality. Thus, rather than prohibiting stalkers from posting about certain topics (victims generally or their culpability in certain crimes), a court could simply prohibit stalkers from stalking their victims. This may reframe protective orders as restrictions on actions that serve to “control” a victim rather than an abuser’s posts, while still encompassing those posts.[38]

IV. Conclusion

The interests raised by the Bey case are weighty: the legal protection available to victims of stalking and other crimes versus the maintenance of free speech rights. But the Bey court failed to properly safeguard the former in this case. Nonetheless, in light of decisions in other states, Ohio courts may yet find that by emphasizing abusers’ acts over their speech content in protection orders, the remedy may still meet the constitutional demands of the First Amendment. Our laws should not compel anyone to endure the ills of stalking, even where speech is involved.

[1] Bey v. Rasawehr, 161 N.E.3d 529, 535 (2020).

[2] Bey v. Rasawehr, 2019-Ohio-57, 2019 WL 182418, ¶¶ 8, 13.

[3] Id. at ¶ 32.

[4] Id. at ¶¶ 35, 49.

[5] Bey, 161 N.E.3d at 546. See generally Prior Restraint, Legal Information Institute, Cornell Law School (last visited Sept. 26, 2021) (describing a prior restraint as “government action that prohibits speech or other expression before the speech happens.”).

[6] Brief for Ohio Domestic Violence Network et al. as Amici Curiae Supporting Appellees, Bey v. Rasawehr, 161 N.E.3d 529 (2020) (No. 2019-0295) (adding that, given the correlation between civil stalking protection orders and protective orders against other types of abuse, the decision here will also impact “victims of dating and domestic violence, including child abuse”).

[7] See, e.g., R.D. v. P.M., 135 Cal.Rptr.3d 791, 800-01 (Cal. Ct. App. 2011) (upholding protective order that banned stalker from disseminating harassing flyers about woman in part because the restriction did not reference speech content).

[8] Bey, 161 N.E.3d at 532.

[9] Rasawehr, 2019 WL 182418, ¶ 8-9.

[10] Id. at ¶ 10.

[11] Id. at ¶ 5.

[12] Id. at ¶¶ 9, 11 (describing the statute as prohibiting knowingly causing a person to believe they or their family will be harmed or causing mental distress, which includes “temporary substantial incapacity”).

[13] Id. at ¶¶ 20, 32.

[14] Id. at ¶ 17.

[15] Bey, 161 N.E.3d at 535.

[16] Brief for Ohio Domestic Violence Network et al. as Amici Curiae Supporting Appellees, Bey v. Rasawehr, 161 N.E.3d 529 (2020) (No. 2019-0295).

[17] Id. Cf. Stalking & Intimate Partner Violence: Fact Sheet, Stalking Prevention, Awareness, and Resource Center, (last visited Sept. 27, 2021),…content/uploads/2018/07/SPARC_IPV_StalkingFactSheet_2018_FINAL2.pdf (stating that more than half of femicide victims reported stalking to police prior to be killed by their stalkers).

[18] Bey, 161 N.E.3d at 529. See generally Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (describing content-neutral regulations as those that are “justified without reference to the content of the regulated speech”) (emphasis in original); Government Restraint of Content of Expression, Legal Information Institute, Cornell Law School (last visited Sept. 27, 2021) (describing content-based restrictions as those that draw “distinctions based on the message a speaker conveys”).

[19] Id. at 538.

[20] Id. at 540.

[21] Id. at 542.

[22] Brief for Ohio Domestic Violence Network et al. as Amici Curiae Supporting Appellees, Bey v. Rasawehr, 161 N.E.3d 529 (2020) (No. 2019-0295).

[23] Commonwealth v. Lambert, 147 A.3d 1221, 1228 (Pa. Super. Ct. 2016) (stating the U.S. Supreme Court has recognized that “where the governmental regulation applies a content-neutral regulation to expressive conduct, strict scrutiny is an inappropriate test to apply”) (citing Texas v. Johnson, 491 U.S. 397 (1989)).

[24] Bey, 161 N.E.3d at 539.

[25] Id.

[26] 147 A.3d at 1229 (emphasis in original).

[27] Bey, 161 N.E.3d at 539.

[28] 391 U.S. 367, 376 (1968). Accord Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (stating that “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidence, or carried out by means of language, either spoken, written, or printed”).

[29] Bey, 161 N.E.3d at 539.

[30] Id. at 539.

[31] Lambert, 147 A.3d at 1229 (emphasis in original).

[32] Brief for Ohio Domestic Violence Network et al. as Amici Curiae Supporting Appellees, Bey v. Rasawehr, 161 N.E.3d 529 (2020) (No. 2019-0295) (emphasis added).

[33] Bey, 161 N.E.3d at 534 (emphasis added).

[34] R.D., 135 Cal.Rptr.3d at 793 (considering free speech challenge to protective order that prevented contact within 100 yards and “specifie[d] acts of personal conduct that P.M. must not do to R.D. … including harassing, attacking, threatening, assaulting, or stalking them…”) (emphasis added).

[35] Id. at 799.

[36] Id. at 800

[37] Id. at 799, 801.

[38] Lambert, 147 A.3d at 1229.

An Irretrievably Broken Marriage: Who Decides?

Photo by Kelly Sikkema on Unsplash

Emily Schmidt, Associate Member, University of Cincinnati Law Review

I. Introduction

In 2019, there were over 746,971 divorces across the United States.[1] In one case, after 13 years of marriage and with over $13,000 spent on counseling and attorney fees, two parties amicably requested a divorce in a hearing with a Kentucky family court judge—a seemingly routine proceeding.[2] However, the court instead ordered the two to continue marriage counseling.[3] The court reasoned their marriage was not yet “irretrievably broken.”[4] 

This article will discuss Kentucky’s requirements for divorce. Section II will provide background on the Uniform Marriage and Divorce Act and the relevant Kentucky Revised Statute provisions on marriage dissolution. Section III will discuss the role of the court in determining when a marriage should end. Finally, Section IV will conclude by proposing a change in Kentucky law to give parties in uncontested divorce proceedings more deference when evaluating irretrievable brokenness.

II. Background

The Uniform Marriage and Divorce Act (“UMDA”) was created in 1970 as a model for state legislatures to reform “the entire conceptual structure” of marriage and divorce laws.[5] Eight states, including Kentucky, adopted the UMDA.[6] Most notably, the UMDA embraced the concept of no-fault divorce, instead making “irretrievable breakdown” the sole basis for marriage dissolution.[7] Kentucky codified these model laws in Kentucky Revised Statute Chapter 403.[8]

Kentucky Revised Statute § 403.140 states that a court “shall enter a decree of dissolution of marriage” if the court finds: at least one party is a Kentucky resident, the parties have attempted reconciliation (if previously ordered), the marriage is irretrievably broken, and collateral issues like child support and property disposition have been considered.

When the Kentucky legislature created this statute in 1972, they provided the purposes behind marriage dissolution laws, which include:

(1) To strengthen and preserve the integrity of marriage and safeguard family relationships;

(2) To promote the amicable settlement of disputes that have arisen between parties to a marriage; and

(3) To make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for its dissolution.[9]

An irretrievable breakdown is the key to a divorce in Kentucky, serving as the sole basis for marriage dissolution.[10] There are two scenarios in which a Kentucky court may find a marriage is irretrievably broken.[11] The statute defines an “irretrievable breakdown” as “no reasonable prospect of reconciliation.”[12]

In the first scenario, both parties agree—by petition, under oath, or affirmation—that their marriage is irretrievably broken. Yet, a court must then hold a hearing to “make a finding whether the marriage is irretrievably broken[.]” A court will not enter a decree until the parties have lived apart for at least sixty days, and it may order the parties to participate in a conciliation conference.[13] Interestingly, even with mutual assent from the parties, the court makes the final determination of whether the marriage is irretrievably broken. Without that finding, the parties are unable to divorce. This judicial discretionary authority to decide when a marriage is irreconcilable derives from the language used in the Uniform Marriage and Divorce Act.[14]

In the second scenario, one of the parties denies that the marriage is irretrievably broken. The court must then consider factors such as the circumstances that gave rise to the divorce filing and the prospects of reconciliation. As a result, the court may either make a finding that the marriage is irretrievably broken or reschedule the hearing and suggest that the parties seek counseling.[15]

III. Discussion

The parties in the recent Kentucky divorce proceeding fit into the first scenario. Both parties wanted a divorce; there was no disagreement between the two as to whether their marriage was irretrievably broken.[16] At their hearing in family court, the judge told the parties that she “g[o]t the vibe that you all might be able to work this out,” despite the parties’ multiple prior attempts at counseling.[17] When the judge asked the parties whether they would benefit from an order to go to reconciliation counseling, both answered no.[18]

Nonetheless, the court issued an order further delaying their divorce proceeding. The order suggested that the parties explore online resources and traditional counseling “to determine if the issues that motivated the filing of the Petition for Dissolution may be resolved without ending the marriage.”[19]

Based upon the record and testimony, the court explained why it was unable to determine that the marriage was irretrievably broken.[20] First, the parties had worked together well to co-parent their child. Second, the couple made “remarkable and telling achievements” by weathering the stress of being a long-term military family. Third, the parties were both “respectful and courteous . . . [with] dignified and mature composure.”[21] The court observed “these parties to be two people who have lost the ability to communicate with one another about their emotional relationship and, perhaps, have let their pride become a wall between them.”[22] The order made no note of the parties’ time and money previously invested into attempts to mend the marriage.

The order for counseling was unexpected by both parties and their respective counsel. One party’s counsel stated in an interview that “it would be a tragedy for every citizen of [Kentucky] if this were to be upheld as some valid precedent in the future.”[23] Understandably, it seems unfair for a judge to prolong divorce proceedings in a case where two cordial, mature adults both express the uncontested desire to end their marriage. In fact, the rationale employed in this decision could encourage parties to treat one another with less respect and more contempt in the courtroom—to convince a judge that a marriage cannot be reconciled.

Kentucky case law on the issue is sparse. Most recently, an unpublished 1986 Kentucky Court of Appeals opinion stated that “deciding whether a marriage has failed is not simply a matter for agreement by the parties but, given the public interest in preserving such unions, is instead a conclusion to be drawn by the court.”[24] Similarly, the court in the recent Kentucky ruling cited to the statutory intentions to “strengthen and preserve the integrity of marriage,” while noting the decision was “highly unusual.”[25] Given the unusual nature of the ruling and lack of precedent, this rationale is unlikely to gain traction in Kentucky courts when both parties agree that their marriage is irretrievably broken.

The Kentucky legislature should consider the consequences of giving judges unfettered discretion to decide whether a marriage is irretrievably broken.[26] When two parties mutually agree to dissolve their marriage, a court order delaying divorce proceedings may result in more harm than good. The parties involved must continue to invest time, money, and emotional labor into court costs, attorney fees, and marriage counseling. Additionally, the court system expends unneeded judicial resources by delaying proceedings, requiring additional filings and court hearings.

IV. Conclusion

In adopting the Uniform Marriage and Divorce Act, the Kentucky legislature decided that a judge determines when a marriage is irretrievably broken, not the parties to the marriage itself. As a result, courts may choose to uphold the “integrity of the marriage” over the shared intentions of the actual parties to that marriage. Kentucky legislators should consider amending Ky. Rev. Stat. § 403.170(1) to eliminate judicial discretion and eliminate the requirement for a hearing on a marriage’s “irretrievable brokenness” when neither party contests the divorce.[27] In dissolution proceedings, parties should not have to postpone an uncontested divorce because they treat each other too respectfully in court.


[1]National Center for Health Statistics, Marriage and Divorce, Centers for Disease Control and Prevention (May 4, 2021),

[2] Julie Dolan, Unusual Ruling: Kentucky Judge Denies a Couple’s Divorce, WLKY News (Sept. 4, 2021),,

[3] Order for Counseling, In re the Marriage of Potts v. Potts at 3 (Bullitt Cir. Ct. Ky., Aug. 23, 2021),

[4] Id. at 2.

[5] See Unif. Marriage and Divorce Act (amended 1973), 9A U.L.A. (1970) [hereinafter UMDA].

[6] UMDA Refs & Annos (West 2020). Arizona, Colorado, Illinois, Minnesota, Missouri, Montana, and Washington have also adopted the UMDA. Id.

[7] See UMDA §§ 102 and 305.

[8] See Ky. Rev. Stat. §§ 403.010 to 403.350.

[9] Ky. Rev. Stat. §§ 403.110(1), (2), and (5). See also UMDA § 102 (providing model language used in Ky. statute).

[10] Ky. Rev. Stat. § 403.110(5).

[11] See Ky. Rev. Stat. §§ 403.170(1) and (2). See also UMDA § 305 (providing model language used in Ky. statute).

[12] Ky. Rev. Stat. § 403.170(3).

[13] See Ky. Rev. Stat. § 403.170(1).

[14] See UMDA § 305(a).

[15] See Ky. Rev. Stat. § 403.170(2).

[16] See Dolan, supra note 2.

[17] Id.

[18] Id.

[19] Order for Counseling, supra note 3, at 3.

[20] Id. at 1-2.

[21] Id. at 1.

[22] Id. at 2.

[23] Dolan, supra note 2.

[24] Clark v. Clark, 1986 Ky. App. LEXIS 1211, at *10-11 (citing Laffosse v. Laffosse, 564 S.W.2d 220 (Ky. Ct. App. 1978)).

[25] Order for Counseling, supra note 3, at 2.

[26] Two drafters of the UMDA raised the issue of judicial discretion to the drafting committee and proposed a provision that “would have required judges” to find a marriage irretrievably broken “if the dissolution petition was jointly filed.” The proposal was rejected. See Robert J. Levy, A Reminiscence About the Uniform Marriage and Divorce Act – Some Reflections About Its Critics and Its Policies, 1991 BYU L. Rev. 43, 46, n.6 (1991).

[27] Kentucky Revised Statute § 403.170(1) reads in relevant part: “If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, . . . the court, after hearing, shall make a finding whether the marriage is irretrievably broken.” This article proposes removing the phrase “after hearing” and replacing “whether” with “that” to eliminate judicial discretion when the parties are in agreement.

Mailbox Liability: Should a Landowner Owe a Duty of Care to Motorists that Strike their Mailbox?

Photo by A n v e s h on Unsplash

Stephen Stafford, Associate Member, University of Cincinnati Law Review

I. Introduction

You are driving down a country road on a winter day when you suddenly lose control after hitting a patch of black ice. You crash into a wooden mailbox, and it breaks away, leaving your car slightly damaged, but you are uninjured. Now imagine a different scenario. You crash into a mailbox with a metal support that is fortified in the ground with concrete. The impact flips your vehicle and sends the car rolling down the embankment. Should the landowner that constructed the mailbox be held liable for your damages and injuries? The Supreme Court of Ohio is set to answer that question in the coming months, and the decision could have ramifications that affect all landowners with mailboxes near a roadway, and the motorists passing by.

On June 16, 2021, the Ohio Supreme Court heard oral arguments in Snay v. Burr.[1] The central issue in this case is whether the homeowner, Matthew Burr, owed a duty of care to the motorist, Cletus Snay, when he lost control of his vehicle and struck Burr’s mailbox.[2] While mailbox construction parameters may seem like a minor issue, Snay v. Burr could have far wider implications regarding the duty of care owed by a homeowner to passing motorists. If Burr is found liable, courts will have difficulty deciding where to draw the line regarding what homeowners are allowed to construct or maintain on their property. In contrast, finding no liability allows homeowners a great deal of leeway and the possibility of escaping liability. At risk in this case are the rights of homeowners to build and erect objects near the roadway that meet their own standards. However, the safety of motorists is also at stake if homeowners are allowed to build fortified mailboxes or other objects so close to the roadway. These competing interests each have broader implications on the legal landscape than merely mailbox construction standards. At issue in this case is the foreseeability of the injury, whether the mailbox was a proximate cause, and whether it interfered with the usual and ordinary use of travel.

First, this article will outline the facts and procedural history of Snay v. Burr. Next, this article will explore relevant case law that could inform the Ohio Supreme Court’s upcoming decision. Finally, this article will argue why the Ohio Supreme Court should find in favor of the motorist and deny the homeowner’s motion for summary judgement.

II. Snay v. Burr

A. Facts

On a winter day in Ohio, Cletus Snay drove his truck down Young Road when he unexpectedly lost control of the vehicle on a patch of black ice.[3] After losing control, Snay crashed into Burr’s reinforced mailbox, causing his truck to roll over and leaving Snay permanently paralyzed.[4] One factor in the severity of the accident was the mailbox itself, which Snay constructed after his previous mailbox had been repeatedly vandalized and damaged.[5] Burr constructed the mailbox with a metal pipe, eight inches in diameter and six-and-a-half feet long.[6] He buried the mailbox three feet in the ground and filled the whole with dirt, stones, and concrete mix.[7] Burr consulted the Bellevue Post Office and obtained the recommendations for installing rural mailboxes, which he exceeded in every aspect.[8] Furthermore, he testified that he considered the risk to motorists and understood why the recommendations exist.[9]

B. Procedural History

The 6th District of Ohio Court of Appeals affirmed the judgement of the Huron County Court of Common Pleas and awarded summary judgment to Burr, the owner of the mailbox.[10] The court held that Burr was entitled to summary judgment as a matter of law because he owed no duty to Snay when he left the traveled portion of the road and struck the mailbox.[11] According to the majority, there was no evidence of proximate causation because Snay’s argument (that the location and erection of the mailbox was the but-for cause of his injuries) was impermissible speculation.[12] In reference to the postal recommendations, the court found that the alleged violations of these recommendations did not constitute negligence per se.[13]

A powerful and detailed dissent written by Judge Mayle pointed out that the majority overlooked the role of foreseeability and Burr’s conscious disregard for the postal service guidelines.[14] Judge Mayle wrote that the majority’s proximate cause analysis was flawed and usurped the role of the jury.[15] Ultimately, the dissent determined that, under the particular facts of this case, Burr had actual knowledge of the unreasonably dangerous hazard that he built and therefore owed Snay a duty; reasonable minds could conclude this duty was breached.[16]

III. Relevant Case Law

A. Foreseeability

Under Ohio law, a cause of action for negligence requires proof of the following four elements: (1) a duty requiring the defendant to conform to a certain standard of conduct, (2) breach of that duty, (3) a causal connection between the breach and injury, and (4) actual damages.[17] In Snay v. Burr, the most hotly contested element is whether Burr owed a duty of care to Snay.[18] One essential part of the duty element is the foreseeability of harm arising from the breach of that duty.[19] People are expected to take reasonable precautions against the risk that a reasonably prudent person would anticipate.[20] Foreseeability of harm does not depend on the magnitude, severity, or probability of a particular harm, but instead depends on whether some risk is foreseeable to the reasonably prudent person.[21] Therefore, the existence and scope of duty is determined by the reasonably foreseeable and general risk of harm that is involved.[22] In circumstances where such a duty is established, the minimum standard of care is that of an ordinarily careful and prudent person under similar circumstances.[23] Reasonable foreseeability is considered an element of proximate cause.[24]

In a similar case, the Indiana Court of Appeals did not award summary judgment to the landowner when a motorist struck their mailbox.[25] This case is not controlling to the court in Snay v. Barr, but it could be persuasive. The Indiana court focused on multiple issues, including the foreseeability of the collision and the unreasonable risk presented by the mailbox.[26] The determination of duty is generally meant for a court to decide, but factual questions may be intertwined when determining the existence of a relationship between the parties and the foreseeability of harm.[27] In this case, the court found that the three-foot distance between the road and the mailbox created an issue of fact as to whether the Defendant should have foreseen a collision.[28] Defendant’s brick mailbox was roughly three bricks by three bricks square and caused serious damage to Plaintiff’s car.[29] The court stated that a factual question existed as to whether the Plaintiff owed the Defendant’s a duty to design the mailbox differently.[30] The court cited postal and highway guidelines regarding the recommended strength and size of mailboxes.[31] The brick mailbox exceeded all guidelines, but the court did not hold that the Defendant needed to install a mailbox of a certain size.[32] Instead, the court used the guidelines as probative evidence of what was reasonable.[33]

B. Proximate Cause

The Ohio Supreme Court has long held that there can be more than one proximate cause.[34] When two factors combine to create damages, both are a proximate cause.[35] For the proximate cause element of negligence to be satisfied, the plaintiff must prove that the defendant’s negligent conduct is a substantial factor in causing the injury.[36] Whether the defendant’s actions were the proximate cause of the injuries is a question of fact for the jury.[37] The rule for proximate cause is that the injury must be the natural and probable consequence of the alleged negligence.[38]

The 5th District Court of Appeals of Ohio has previously held that regardless of the duty issue, the mailbox could never be the proximate cause of a motorist’s injuries.[39] Instead, the court held that the proximate cause of the injuries was the motorist’s inability to control her vehicle on an icy roadway.[40] In another case, the 5th District Court of Appeals of Ohio determined that the motorist’s action in swerving to avoid a collision was the proximate cause.[41] In this case, the mailbox was constructed of material that did not allow it to breakaway because of past vandalism.[42] However, in Sparks, the court held that the same factual issues that precluded summary judgment on the proximate cause issue also precluded the duty issue.[43] An act is the proximate cause of the injury if it was foreseen or reasonably should have been foreseen as the natural and probable consequence of the act or omission.[44] There is the genuine issue of material fact as to whether the Defendants foresaw or should have foreseen that the motorists would leave the road and strike the mailbox.[45] In Sparks, the court asserted that ordinarily, proximate cause is not properly resolved at the summary judgment stage.[46]

C. Usual and Ordinary Course of Travel

Another prominent issue in Snay is whether the object interfered with the usual and ordinary course of travel.[47] The Supreme Court of Ohio held that a public utility is not liable when a vehicle collides with a utility pole that does not interfere with the usual and ordinary course of travel.[48] In this case, the utility pole was located within the right-of-way, but off the improved portion of the roadway.[49] The right-of-way includes the roadway, shoulders or berm, ditch, and slopes extending to the limit set by the local authority.[50] A motorist using the usual and ordinary course of travel would not have come in contact with the pole and the utility pole did not interfere with the public use of the highway.[51] In Swaisgood, the 6th District Court of Appeals of Ohio found that a utility pole did interfere with the usual and ordinary course of travel because it did not provide clearance for long vehicles.[52] In Turner, the public utility obtained the necessary permit for erecting the utility pole.[53] The Second District Court of Appeals of Ohio determined that there is no precedent for imposing a duty on public or private landowners to remove hazards from the right-of-way if the hazard only renders off-road travel unsafe.[54] The court held that every object on the roadside or road would impose potential liability.[55]

IV. Discussion

The Supreme Court of Ohio should reverse the award of summary judgment for Burr because there are genuine issues of material fact about the foreseeability and proximate cause of the injury. Summary judgment is inappropriate because there are questions of fact that should be determined by a jury in this case. First, there is the question of whether Burr foresaw or should have foreseen that a motorist would strike his mailbox, causing an injury. Next, the issue of proximate cause raises a question of fact for the jury because reasonable foreseeability is an element of proximate cause. Reasonable minds could differ about the proximate cause of the damages. Based on the facts of this individual case, there should be a jury trial to determine these questions. To avoid future litigation and injuries, the Ohio Legislature should adopt a form of the Postal Service guidelines to ensure uniformity and prevent needless injury from unreasonably fortified mailboxes.

The Supreme Court of Ohio should adopt the reasoning employed by the Sparks court and determine that summary judgement is not appropriate; the foreseeability of the collision is linked with a question of fact and, thus, most appropriately determined by a jury. In Snay, factual questions are intertwined with the determination of his duty of care and the foreseeability of the harm. Comparing Sparks and Snay, the mailbox was further from the road in Sparks, and there was no documented reason for why the motorist left the roadway. In Snay, the motorist inadvertently left the roadway because of a patch of black ice.[56] Furthermore, Burr testified that he could have foreseen the snowplow being damaged by hitting his mailbox.[57] Burr knew about the Bellevue Post Office guidelines and openly disobeyed them, despite understanding their purpose.[58] In Sparks, there was no evidence that the landowner knew about postal or highway guidelines, but the court still used them to show what was reasonable.[59] The Sparks court was able to determine that summary judgment was not proper with far fewer favorable facts than in Snay. Knowledge and understanding of the postal guidelines further provides that Burr should have foreseen a collision. Burr did not have to foresee Snay’s exact injury or an injury of that magnitude to satisfy the foreseeable requirement. At the very least, this creates an issue of material fact for the jury to decide.

Regarding proximate cause, the Ohio Supreme Court should not grant summary judgement to Burr because there is a question of fact about the proximate cause of the injury. The Battista court went too far by proclaiming that the mailbox could never be the proximate cause of the motorist’s injuries. The mailbox could have been a proximate cause of the injuries if it was found by the jury to be the natural and probable consequence of Burr’s negligence. Furthermore, Burr did foresee that a collision with the snowplow and the mailbox could cause damage to the snowplow.[60] The mailbox, the black ice, and Snay’s driving could all be potential proximate causes of the injuries. In Snay, evidence was presented that Snay’s truck would not have overturned and he would not have sustained injuries if the mailbox was constructed with breakaway materials.[61] The expert witness testified that Snay was injured because the mailbox was dangerously reinforced.[62] According to Judge Mayle, reasonable minds could differ whether the mailbox was a proximate cause.[63] The Supreme Court of Ohio should adopt the same reasoning.

The best argument for granting summary judgment is that Burr owed Snay no duty of care because his mailbox did not interfere with the usual and ordinary course of travel. Burr’s mailbox was located off the improved roadway and did not interfere with the flow of traffic. However, the cases that reflect this argument are distinguishable from Snay. In Turner, the main issue is the location of a utility pole and not the construction or materials of the object.[64] In Snay, the issue is whether Burr should be liable because of the way he reinforced the mailbox.[65] Snay’s choice to reinforce his mailbox is inherently different than a utility company installing a standard pole. Snay made the decision to dangerously reinforce the mailbox in the location it was previously. If the location were the only problem, the case might be different. However, the case is about the reinforcement of the mailbox. Additionally, Ramby is distinguishable because the issue is not whether Burr should remove the hazard. The issue is that he made the conscious decision to unreasonably reinforce his mailbox despite the foreseeable harm.

The Restatement Second of Torts §368 provides the standard for a possessor of land that creates a condition that is an unreasonable risk for motorists.[66] According to §368, the possessor of land is subject to liability for harm caused to people that “are traveling on the highway, or foreseeably deviate from it in the ordinary course of travel.”[67] Additionally, the comments to § 368 note that this applies to those that reasonably and expectably deviate from the highway and enter the abutting piece of land in the ordinary course of travel.[68] This is especially true when the deviation is inadvertent.[69] The right to use the highway comes with the right to protection by reasonable care against harm suffered during the deviation.[70]

§368 should be applicable in this situation because Burr created an unreasonable risk for motorists with the construction of his reinforced mailbox. Snay’s deviation from the roadway was reasonable because he lost control on a patch of black ice. On a winter day in Ohio, a reasonable person could find this was a foreseeable deviation in the ordinary course of travel. It was an inadvertent and expectable deviation and therefore, Snay should have the right to protection by reasonable care from Burr, the abutting landowner.

Regardless of whether summary judgment is granted or denied, the court or the legislature needs to determine a standard for dangerous objects on the side of the road. One way to address the problem would be for the legislature to adopt the postal guidelines as law and incorporate them into the Ohio Revised Code. This would create a statutory duty of care to be imported for negligence per se situations in future cases with similar facts. Requiring mailboxes to be constructed with breakaway materials would prevent incidents like Snay’s life altering injury. In contrast, landowners have an interest in protecting their mailbox against vandals and snowplows like Burr. As a result of conflicting interests, courts may continue to decide this issue based on the facts of each case.

V. Conclusion

The Supreme Court of Ohio should not grant Burr’s motion for summary judgement. Reasonable minds could differ on the element of foreseeability and proximate cause. Burr relies on the argument that he is not liable because his mailbox did not interfere with the usual and ordinary course of travel. The court should consider this argument in addition to his conscious decision to reinforce his mailbox. Ultimately, a jury should determine the issue of Burr’s duty and the proximate cause of the injury. Outside of this case, the court and the legislature will have to determine how to treat these types of cases. The Ohio legislature should adopt a certain standard for mailbox construction to avoid needless injury and constant litigation. An injury like Snay’s could be prevented if there is a proper statute on this issue to impose a duty on landowners. Even if such an injury is not prevented by this potential statute, the statutory duty of care would provide the harmed party recourse for their damages.

[1] Oral Argument, Snay v. Burr, 160 Ohio St. 3d 1438, 2020-Ohio-4983, 155 N.E.3d 940,

[2] Snay v. Burr, 156 N.E.3d 399 (Ohio App. 6th Dist. 2020), appeal allowed, 155 N.E.3d 940 (Ohio 2020).

[3] Id. at 402.

[4] Id. at 410 (Mayle, J., dissenting).

[5] Id.

[6] Id. at 411.

[7] Id.

[8] Id.

[9] Id.

[10] Snay, 156 N.E.3d at 409.

[11] Id.

[12] Id.

[13] Id. at 406.

[14] Snay, 156 N.E.3d at 409 (Mayle, J., dissenting).

[15] Id.

[16] Id. at 421.

[17] Cromer v. Children’s Hosp. Med. Ctr. of Akron, 29 N.E.3d 921, 928 (Ohio 2015).

[18] Snay, 156 N.E.3d at 402.

[19] Cromer, 29 N.E.3d at 928.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Sparks v. White, 899 N.E.2d 21, 30 (Ind. Ct. App. 2008).

[26] Id. at 22.

[27] Id. at 23.

[28] Id. at 24.

[29] Id. at 25.

[30] Id. at 28.

[31] Id. at 27-28.

[32] Id. at 29.

[33] Id.

[34] Murphy v. Carrollton Mfg. Co., 575 N.E.2d 828, 830 (Ohio 1991).

[35] Id.

[36] Snay, 156 N.E.3d at 421 (Mayle J., dissenting).

[37] Id. at 422.

[38] Strother v. Hutchinson, 423 N.E.2d 467, 471 (Ohio 1981).

[39] Battista v. Bucceri, No. 2014CA00027, 2014 Ohio App. LEXIS 4355 at 8 (Ohio App. 5th Dist. 2014).

[40] Id.

[41] Sweitzer 7 Sweitzer v. Houtman, No. 98CA-E-11-058, 1999 Ohio App. LEXIS 1482 at 7 (Ohio App. 5th Dist. 1999).

[42] Id.

[43] Sparks, 899 N.E.2d at 30.

[44] Id. at 29 (citing Funston v. Sch. Town of Munster, 849 N.E.2d 595,600 (Ind. 2006)).

[45] Id. at 30.

[46] Id. at 29.

[47] Snay, 156 N.E.3d at 408.

[48] Turner v. Ohio Bell Tel. Co., 887 N.E.2d 1158, 1163 (Ohio 2007).

[49] Id.

[50] Ohio Rev. Code Ann. § 4511.01 (UU)(2).

[51] Turner, 887 N.E.2d at 1163.

[52] Swaisgood v. Puder, No. E-06-033, 2007 Ohio App. LEXIS 279 (Ohio App. 6th Dist. 2007).

[53] Turner, 887 N.E.2d at 1163.

[54] Ramby v. Ping, No. 93-CA-52, 1994 Ohio App. LEXIS 1539 at 8 (Ohio App. 2nd Dist. 1994).

[55] Id.

[56] Snay, 156 N.E.3d at 410 (Mayle J., dissenting).

[57] Id. at 411.

[58] Id.

[59] Sparks, 899 N.E.2d at 28.

[60] Snay, 156 N.E.3d at 411 (Mayle J., dissenting).

[61] Id. at 422.

[62] Id.

[63] Id.

[64] Turner, 887 N.E.2d at 1163.

[65] Snay, 156 N.E.3d at 403 (Mayle J., dissenting).

[66] Restatement (Second) of Torts § 368 (1965).

[67] Id.

[68] Restatement (Second) of Torts § 368 cmt. e (1965).

[69] Id.

[70] Id.

Why Abolishing the Fourth Amendment Consent Exception is Long Overdue

Photo by TJ Kiely on Flickr

Drew Lance, Associate Member, University of Cincinnati Law Review

I. Introduction

The Fourth Amendment is clear—“the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.”[1] Yet the Supreme Court has carved out a niche that renders the amendment nearly impractical in most encounters with police.

Warrantless searches are presumed unreasonable unless they fall under certain exceptions,[2] but most searches fall under the consent exception.[3] Nearly 50 years ago, the Supreme Court established that consent to search must be voluntary.[4] Despite a wealth of caselaw, the application of the test is still unclear. Most people are not aware they can refuse police, much less how to determine an officer’s actual legal authority to search in an encounter. Given the imbalance of power, knowledge, and authority that police have, it is questionable whether or not a functional way to exercise that right always exists when police exert apparent legal authority to search.[5] One only has to look to the prevalence of granted consent in traffic stops for this conclusion.[6]

The spectrum of the Fourth Amendment is divided into different parts. On one end are the searches conducted pursuant to valid warrants, and on the other end are searches conducted pursuant to exceptions like emergency circumstances, officer safety, and automobiles,[7] which are all subject to their own standards of proof. In the middle, where police authority is debatable or nonexistent, lies consent searches.

People have a natural inclination to comply[8] with authority when demanded, suggested, or implied.[9] Police have a well-documented imbalance of power,[10] so even when the intent is a legitimately optional request, this may be perceived as an obligation.[11] Voluntary consent searches may occur during routine police activity, but even normal police practice is not immune from critique.[12] Courts have traditionally viewed voluntary searches through a different lens than the common understanding of what is “voluntary”;[13] however, the ability to practically deny police when they want to search is a privileged perspective that does not take into account the reality of the social relationship between other groups and police.[14] The purpose of this article is to argue for removing this exception as a giant step towards a fairer criminal justice system.

II. Background

Schneckloth is the seminal Supreme Court decision that established the balancing test for voluntary consent as an exception to the Fourth Amendment.[15] This totality of the circumstances test considers factors such as youth, intelligence, knowledge of rights, and the questioning and detention by police.[16] No single factor is controlling or dispositive,[17] nor is custody even a bright line rule for involuntary consent.[18] The Supreme Court in 1996 also confirmed that police are not constitutionally required to inform people of their right to refuse consent searches.[19] A small minority of states and agencies, however, have implemented this protection.[20] In theory, the burden is on the state to prove consent was voluntary,[21] but in practice, this is treated as a rebuttable presumption in favor of the state, and courts rarely analyze the factors of the voluntariness standard.[22]

Schneckloth provided two situations where consent is more likely to be involuntary: coercion and acquiescence.[23] Courts often acknowledge blatant examples of coercion,[24] but they can also consider “subtly coercive police questions” and “forms of coercion that may flaw an individual’s judgment.”[25] Consensual encounters usually do not invoke Fourth Amendment inquiries because those are situations where a reasonable person would feel free to “disregard the police and go about his business.”[26] Coercion is often evaluated by asking whether a reasonable person would feel free to terminate the encounter.[27] Because the test is still based on the totality of the circumstances, a finding of subtle coercion or that a person would not actually feel like they could leave does not necessitate a finding of involuntary consent. Further, the Sixth Circuit requires more than a subjective belief of coercion, but some improper action by police.[28]

Prior to Schneckloth, the Supreme Court in Bumper v. North Carolina established that consent is not considered freely and voluntarily given when it is an acquiescence in response to a claim of lawful authority.[29] For example, when an individual responds that declining consent is pointless: “You’ve got the badge. I guess you can.”[30] However, when police express threats to seek warrants or other lawful measures, courts usually will not invalidate the consent.[31] Even if the person declines consent, follow up statements intended to change the decision are permissible; “He’s going to search your room whether you let him or not. He gets a search warrant, it’s not going to be a problem. And he said it would be just a whole lot easier for you and us if you—if you consented to the search.”[32]

The disconnect between the courts’ perspective on voluntariness and the common perception of “voluntary” frustrates many defendants and attorneys because the issue is difficult to predict. Though the Sixth Circuit has said police may not use overbearing tactics,[33] the First Circuit has said that even in a situation where police drew guns on a suspect, because the suspect was not a newcomer to the law, the consent was voluntary.[34] In situations where police have questionable probable cause or reasonable suspicion,[35] especially in traffic stops, an officer might seek consent to search anyway as a backup.[36] When the case comes before a judge, the consent issue controls, meaning it may no longer be necessary to prove the initial justification to search.

III. Discussion

Consent searches have three main problems, two of which have already been discussed in more detail in other articles.[37] “Consent” discounts the tendency to comply with authority and follow social norms when dealing with an authority figure such as police.[38] Most people are left in the dark about their right to refuse to consent to police searches because police are not required to advise them of their rights beforehand. From the beginning, a minority of judges have questioned this consent standard and asked how a citizen can “meaningfully be said to have waived something as precious as a Constitutional guarantee without ever being aware of its existence?”[39]

The first two problems, in addition to standard police practices, create an environment where the courts, under the guise of “voluntary consent,” have given the state freedom to disregard the purpose of the Fourth Amendment of protecting against unreasonable searches. Essentially, consent is used as a shortcut justified as more effective police work, but this advantage gained by the police is “at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior.”[40]

Coercion has a negative connotation, so it is associated with negative actions. That is likely why courts often look for improper acts or some kind of misconduct. However, this encourages courts to overlook the inherent coerciveness that comes with being a police officer, an agent of the state, and the authority such a position commands.[41] Because normal police practices are not viewed as improper, courts don’t regard them as coercive. But it is irrational to suggest that the presence of an officer does not persuade, induce, or otherwise lead someone to comply with their commands even if the officer is completely calm or polite.[42]

Additionally, analyzing coercion using the reasonable person standard is another legal fiction disconnected from reality. When an officer is seeking consent to search, some type of investigation is underway, and a normal person is not going to feel like they can just leave for fear of some kind of retaliation, expressed or implied, and legal or otherwise.[43] This standard also ignores that given some officers’ predisposition to violence, that certain groups like Black men are more likely to feel like they must agree with the officer no matter the request for fear of their own safety—a feeling most judges probably would not relate to.[44] The claim that anyone, especially marginalized groups, can truly just say “no” is a “sorry, empty slogan.”[45] The number of situations where consent is actually and objectively voluntary is an exceedingly smaller number than the present amount under the Court’s current definition.

Consent has been found to be voluntary in situations that, when considered in light of the Schneckloth test, do not reach reasonable conclusions. In Lopera v. Town of Coventry, after a high school soccer a match, a mob gathered around the visiting team’s bus and accused various players of theft. Police cars blocked the bus from leaving. Though the officers requested consent to search the bus politely, the reality was that the bus could not leave without complying with the police. Despite this, the majority found the consent voluntary.[46]

Traffic stops are where many people will encounter these requests from police,[47] but even the routine cases show some of the problems with relying on consent to justify searches. In State v. Pooler, police pulled over a car with no license plate and expired registration. The officer wanted to search because the driver was previously arrested for having a gun in his vehicle and the officer observed loose ammo in the car. The officer requested to search and the driver said to “go ahead and check” while getting out of the car.[48] The court rejected the driver’s arguments that a traffic stop was not consensual and that he did not know he could refuse the officer’s request.[49] It found the consent to be voluntary.[50] Notably, the lower and appellate court described how the driver got out of the car and discussed football with the officers, but the opinion never discussed probable cause, reasonable suspicion, or the automobile exception.[51]

The driver in Pooler forgot about the gun, so the lack of informed choice influenced the outcome. One might defend this court by asserting that innocent people may have no problem waiving their rights, but the line between innocent and guilty is often vague. Anyone might look disingenuous when the court begins framing actions as someone “spontaneously remark[ing] that he had forgotten about the gun.”[52] Some crimes are strict liability, where mental state can be irrelevant, so Constitutional Rights and due process should be preserved even in cases like Pooler. Even if the memory lapse was not genuine, and if the courts presume a rational person, why would anyone ever consent to that search if they thought it was an option? A prosecutor could probably make a decent, if not winning, probable cause argument based on the facts in Pooler that the officer could have searched anyway, but because the court never considers this in the opinion, the mere request for consent discharges that Fourth Amendment requirement. This case shows how even in situations where someone likely gave free and voluntary consent, whether from lack of knowledge about their rights or unaware of their present guilt, the inherent coercion behind the request renders the protections of the Fourth Amendment an afterthought in a situation where it did not need to be.

The Supreme Court decided that it is impractical to inform the consenting party of the right to refuse because it is unrealistic to inform people of the right.[53] Yet it is questionable that the burden to bear the consequences of that impracticality should fall on the consenting party. If an officer has the time to ask multiple times for consent, some of that time could be used to merely attempt to explain the right. It is the most commonly used tool for warrantless searches, but just because it is a widely used practice does not shield it from Constitutional criticism. “Practicality” is really the desire to allow police to continue to capitalize on the ignorance of citizens to accomplish their police work by deceit, no matter how minor, unintentional, or institutionalized the practice.[54]

In theory, under Miranda, once those rights attach, any questioning or interrogating directed at getting information is a violation, even if said pleasantly or with a smile. The Supreme Court has justified this consent standard by claiming there is a vast difference between the criminal trial and rights protected by the Fourth Amendment; they were worried about thwarting police efforts.[55] The difference should be that Fourth Amendment rights are automatic; they don’t attach when in the adversarial environment like the Fifth Amendment. This justification by the Court dismisses the dispositive connection evidence can have to a case and denies a “knowing and intelligent” waiver because it might limit the police’s expected efficiency. Therefore, it cannot be permissible to allow police to not inform people of their right to refuse consent then use the coercive power of the state to pressure people into dismissing their rights.  For a court to assert compliance was optional after the police benefit from that imbalance of power, is lacking perspective and justice.

The rights in the Constitution must have associated protections that give weight and functionality to them.[56] This is necessary to “insure that what was proclaimed in the Constitution had not become but a ‘form of words.’”[57] The consent to search obtained by state cannot be examined by voluntariness factors or what the theoretical reasonable person would do because it does not truthfully answer the question.[58] Either the state has the legal authority or they do not, but if it can use its natural and inherent authority to induce waiving the right like in the examples above, how useful are the right’s protections? To allow the state to disregard at will the requirements to search makes the Fourth Amendment merely subject to the grace of the state. The layperson cannot be expected to make this impulsive guess regarding the police’s authority and risk the legal and safety consequences of such an act without at the very least knowing this is a Constitutional right and be permitted, practically, to exercise it. The Amendment should be used to protect the state from its own self-interest instead of supporting an unjust legal standard that hardly considers whether someone truly felt like refusal was a viable option. Any activity or words spoken in furtherance of attempting to garner consent should be a violation of the Fourth Amendment[59] when outside of the clearly delineated non-consent exemptions and citizen-initiated requests[60] similar to the suspect-initiated statements in Miranda situations.

IV. Conclusion

Consent can no longer be the widely used Fourth Amendment shortcut to which agencies have become accustomed. The pressures of compliance, the lack of knowledge of the right, the wide range of innate and explicit coercion, and the ineffective legal tests should render consent incapable of being voluntary when police seek to evade the requirements of the Fourth Amendment.

It is not enough to merely create a more friendly consent standard because an overwhelming number of cases will still end in a guilty plea despite the weight of the evidence or factors that might suggest consent was involuntary. The reality is that by virtue of obtaining evidence in this manner, most people are going to be subject to a conviction. The problem is not just the legal standard, but the practice of continuously stretching the boundaries of the Fourth Amendment. Modern police encounters subject more people to criminal consequences than should be permitted under the Constitution through use of the required procedural steps.

Of course, the Amendment does not forbid the state from any investigation to initiate criminal proceedings, but the Constitution clearly lays out that warrants are required, and the Supreme Court created certain exceptions. The state does not have a compelling interest in shorting the Fourth Amendment in routine investigations purely for efficiency, situations where the Fourth Amendment implicates the state following such a procedure. Even without the consent exception, police should still act cordially when proceeding with a search, but the courts should continue to uphold the other restrictions of the Fourth Amendment, because it is not actually limiting the government if the state merely has to obtain the magic words. Many people will probably still be searched, for example, under the automobile exception, but at least now they might have a more realistic chance in the court system without having to overcome the voluntary consent fiction.

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

[2] Coolidge v. New Hampshire, 403 U.S. 443 (1971).

[3] Roseanna Sommers and Vanessa K. Bohns, The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance, 128 Yale L.J. 1962, 1966 (2019) citing Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 Ind. L.J. 773, 773 (2005) (“Over 90% of warrantless police searches are accomplished through the use of the consent exception to the Fourth Amendment.”).

[4] Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

[5] See generally Ohio v. Robinette, 519 U.S. 33, 40-41 (1996).

[6] See Janice Nadler & J.D. Trout, The Oxford Handbook of Language and Law 326, 327 (2012, Peter M. Tiersma & Lawrence M. Solan); See also

[7] Missouri v. McNeely, 569 U.S. 141 (2013); Terry v. Ohio, 392 U.S. 1 (1968); Carroll v. United States, 267 U.S. 132 (1925).

[8] Sommers, supra note 3, at 1993-2000.

[9] See generally Nadler, supra note 6, at 332-33.

[10] Miranda v. Arizona, 384 U.S. 436, 461 (1966) (describing how a suspect in a police station may be subject to persuasion).

[11] See Nadler, supra note 6, at 334.

[12] Ethan Boldt and Michael Gizzi, The Implementation of Supreme Court Precedent: The Impact of Arizona v. Gant on Police Searches, 6 U.Chicago J.L.C. 355 (2018) (“In 2009, the US Supreme Court handed down a decision that directly influenced vehicle search practices police had relied upon for almost 30 years”).

[13] United States v. Vanvliet, No. 02-10362-NG, LEXIS 33451, 3 (D. Mass. Aug. 30, 2004) (“But the legal standard for ‘consent to search’ is not the same as the lay understanding of this concept”).

[14] See Nadler, supra note 6, at 326-27.

[15] Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

[16] Id.

[17] Id.

[18] United States v. Watson, 423 U.S. 411, 424 (1976).

[19] Ohio v. Robinette, 519 U.S. 33, 39-40 (1996).

[20] Alexandra L. Pratt, Note, The need for “knowing” why the Iowa supreme court should reject Schneckloth v Bustamonte. 100 Iowa L. Rev. 1327, 1340 (2015) (Arkansas, Mississippi, New Jersey, and Washington have some knowing standard as a determinative criterion to determine the voluntariness of consent).

[21] Schneckloth, 412 U.S. at 248-49.

[22] Pratt, supra note 20, at 1350 (“…One scholar noted that ‘out of hundreds of decisions,’ only a few ‘analyzed the suspect’s particular subjective factors.’ Instead, courts often deem consent ‘voluntary’ notwithstanding the particular characteristics of a suspect.”).

[23] Schneckloth, 412 U.S. at 233.

[24] See United States v. Ivy, 165 F.3d 397, 403 (6th Cir. 1998); See United States v. Tatman, 397 F.App’x 152, 166 (6th Cir. 2010); see also Marcy Strauss, Reconstructing Consent, 92 J.Crim.L.Criminology 211, 225 (2001) (“cases typically involve four types of recurring events that lead to involuntary consent; threats to suspect or family, deprivation of necessities until compliance, asserting an absolute right to search, and an unusual and extreme show of force.”).

[25] United States v. Watson, 423 U.S. 411, 424 (1976) contra Florida v. Royer, 460 U.S. 491, 507-08 (1983) (finding an illegal detainment tainted the consent).

[26] California v. Hodari D., 499 U.S. 621, 628 (1991).

[27] The case that is usually cited for this is Florida v. Bostick, 501 U.S. 429, 439-440 (1991).

[28] United States v. Crowder, 62 F.3d 782, 787 (6th Cir. 1995).

[29] Bumper v. North Carolina, 391 U.S. 543, 548-550 (1968) (finding improper a search based on consent given after an officer claimed to have a warrant which was actually invalid); See also Orhorhaghe v. INS, 38 F.3d 488, 500 (9th Cir. 1994) (“It is well established that there can be no effective consent to a search or seizure if that consent follows a law enforcement officer’s assertion of an independent right to engage in such conduct.”).

[30] United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999).

[31] See United States v. Blanco, 844 F.2d 344, 351 (6th Cir. 1998).

[32] United States v. Salvo, 133 F.3d 943, 954 (6th Cir. 1998); See also United States v. Watson, 117 F.3d 1421 (6th Cir. 1997) (unpublished disposition) (“Notifying a person that a warrant can be obtained does not render consent involuntary unless the threat to obtain the warrant is baseless.”).

[33] See United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005).

[34] See United States v. Barnett, 989 F.2d 546, 556 (1st Cir. 1993).

[35] However, consent may be invalid when the seizure is improper. See Florida v. Royer, 460 U.S. 491, 507-08 (1983).

[36] Daniel Rotenberg, An Essay On Consent(less) Police Searches, 69 Wash. U. L. Rev. 175, 190 (1991) (California Attorney General’s Office’s advice to “always ask for consent to search even when you have other authority for the search.” Article also notes that some departments like Philadelphia prohibit the practice at least in 1991).

[37] See Sommers, supra note 3, at 1966; See Nadler, supra note 6, at 326; See Straus, supra note 24, at 211; See Pratts supra note 20, at 1327; See Rotenberg, supra note 36, at 175.

[38] Sommers, supra note 3, at 1981-92.

[39] Schneckloth v. Bustamonte, 412 U.S. 218, 277 (1973) (Brennan, J., dissenting).

[40] Id. at 288 (Marshall, J., dissenting).

[41] See Rotenberg, supra note 36, at 187-89; See also Straus, supra note 24, at 268.

[42] See Daniel Williams, Misplaced Angst: Another Look at Consent Search Jurisprudence, 82 Ind. L. J. 69, 41-42 (2007); see Straus, supra note 24, at 235 (“the voluntariness standard could still be criticized for ignoring the most significant factor of all: the inevitability that individuals will feel coerced simply by virtue of dealing with an authority figure like the police”).

[43] Utah v. Strieff, 136 S. Ct. 2056, 2069-2070 (2016) (Sotomayor, J., dissenting) (describing the possible humiliation and detrimental impact from refusing a consent request).

[44] See Straus, supra note 24, at 213.

[45] Id. at 244.

[46] Lopera v. Town of Coventry, 640 F.3d 388, 404-05 (1st Cir. 2011) (Thompson, J., dissenting) (ultimate issue in the case was qualified immunity related to the officer’s knowledge of the Fourth Amendment question).

[47] Nadler, supra note 6, at 327-28.

[48] State v. Pooler, 2021-Ohio-1432, ¶ 3 (Ohio Ct. App.).

[49] Id. at ¶ 9.

[50] Id. at ¶ 10.

[51] Id. at ¶ 8-10.

[52] Id. at ¶ 4.

[53] See Ohio v. Robinette, 519 U.S. 33, 40 (1996).

[54] See Schneckloth v. Bustamonte, 412 U.S. 218, 288 (1973) (Marshall, J., dissenting).

[55] Straus, supra note 24, at 219-221.

[56] See generally Roe v. Wade, 410 U.S. 113, 152 (1973).

[57] Miranda v. Arizona, 384 U.S. 436, 444 (1966) citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

[58] See generally United States v. Tanguay, LEXIS 63839, 34 (D.N.H 2017) (the fact that suspect was in custody was not enough by itself to render consent involuntary, it merely “raised a sensitivity to the heightened possibility of coercion”).

[59] Schneckloth, 412 U.S. at 228 (“For, no matter how subtly the coercion was applied, the resulting “consent” would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd v. United States, 116 U.S. 616, 635”).

[60] Rotenberg, supra note 36, at 192 (a request from the individual to the police).