Life After Miller: Retroactive Sentencing and the Rare Juvenile

Photo Credit: Associated Press,

Written by: Kimberly Fasking

Member, American Journal of Trial Advocacy

In 2006, Evan Miller was convicted of a crime he had committed just three years prior, at the age of fourteen.[1] He and a friend had robbed, beaten, and killed his mother’s drug dealer after an evening drinking and smoking marijuana with the victim.[2] Miller was convicted of murder, and he was sentenced to life without the possibility of parole, the mandatory sentence in the state of Alabama at the time for such an offense.[3]

Miller’s case made its way up to the Supreme Court of the United States, which had recently been indirectly effectuating progressively more merciful sentencing for juvenile offenders by holding that certain sentences were unconstitutional violations of the Eighth Amendment.[4] In 2005, the Court held that capital punishment for juveniles was unconstitutional and in 2010 held as unconstitutional life without parole for juveniles who committed offenses that did not involve homicide.[5] In Miller’s case, the Court ultimately held that mandatory sentences for juveniles of life without parole, for any offense, violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[6]

The “Rare” Juvenile

Although the Court held that sentencing of juveniles to life without parole was not unconstitutional in all cases, it identified a number of individual factors that should be evaluated during the sentencing process in order to appropriately sentence each juvenile and keep life without parole sentences rare.[7] The Court stated that “the right not to be subjected to excessive sanctions[8] . . . flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ to both the offender and the offense.”[9] In an effort to tailor sentences appropriately to juveniles, the Court stated that courts should recognize that “juveniles have diminished culpability and greater prospects for reform,” and therefore “they are less deserving of the most severe punishments.”[10] The Court further held that, although a life sentence without parole could potentially be appropriately applied to juvenile offenders in homicide cases, the cases where such a sentence would be appropriate were certainly rare, and there were several “Miller factors,” as they came to be known, which a judge would be required to take into account before imposing such a sentence on a juvenile.[11] These factors include age of the offender, his role in the crime, and his background and upbringing.[12] In Evan Miller’s case, these factors could have included his mother’s drug use, the beatings he endured at the hands of his stepfather, his stints in and out of foster care, and his multiple suicide attempts which began at age six.[13]

Retroactive Application and Resentencing

At the time of the decision in Miller, twenty-nine states had laws which mandated life without parole for juveniles convicted of murder.[14] There were more than 2,500 inmates across the country sentenced under these guidelines, 79 of whom were 14 or younger at the time of their sentencing.[15] In 2015, the Alabama Supreme Court held in a 7-2 decision in Ex Parte Williams[16] that Miller did not have to be applied retroactively.[17] The court reasoned that the new rule announced in Miller was procedural and not substantive, and that because only substantive rules must be applied retroactively, juveniles sentenced prior to Miller were not entitled to resentencing.[18] The Supreme Court of the United States later overturned that decision in Montgomery v. Louisiana,[19] holding that “courts must give retroactive effect to . . . substantive rules of constitutional law”[20] such as “rules prohibiting a certain category of punishment of a class of defendants because of their status or offense.”[21] The Court further held that Miller “announced a substantive rule of constitutional law, which, like other substantive rules, is retroactive because it ‘necessarily carr[ies] a significant risk that a defendant faces a punishment that the law cannot impose upon him.’”[22] Juveniles serving mandatory life sentences must either be granted a resentencing hearing which includes evaluation of the “Miller factors” or be allowed to be eligible for parole.[23] Since the Court clarified in Montgomery that Miller should be applied retroactively, there is a backlog of offenders languishing under their unconstitutional sentences while courts and legislatures decide how to proceed.[24] Some juvenile offenders have had their sentences converted due to statute changes or resentencing hearings, while others must petition for and await their hearings.[25]

Moving Forward

While the court in Miller reiterated that sentencing should distinguish between those juveniles who are simply immature and make bad decisions from “the rare juvenile offender whose crime reflects irreparable corruption,” progress in adjusting sentences has varied widely among the states.[26] For instance, Arkansas enacted a new law which banned life without parole sentences altogether for juveniles.[27] Alabama instituted a new sentencing option for juveniles which offered parole after thirty years, but a sentence of life without parole is still available.[28] Iowa’s Governor commuted all juvenile life without parole sentences to sixty years without parole and no credit for time served, but these sentences were also unconstitutional, as they amounted to defacto life without parole sentences for certain offenders.[29] Although parole is technically available in Missouri, the parole board has denied parole to 20 of 23 juvenile offenders.[30] In Louisiana, despite the prohibition on life without parole being a mandatory sentence, over eighty percent of juvenile offenders convicted of homicide have been sentenced to life without parole– a clear contradiction to the Miller court’s holding that the “appropriate occasions for sentencing juveniles to [life without parole] will be uncommon.”[31] It appears that, until the Supreme Court finds a sentence of life without parole unconstitutional in all instances for every juvenile, states will have the discretion to define “uncommon” and “rare” as they please, and some will continue to throw away the proverbial key on their young people forever.

[1] Beth Schwartzapfel, Was Evan Miller “The Rare Juvenile” Who Deserved Life Without Parole?, The Marshall Project, (Mar. 12, 2017, 10:00 PM),

[2] Id.

[3] Kent Faulk, Evan Miller, The Alabama Inmate Whose Case Became Precedent for Juvenile Sentencing, Set for Hearing,, Mar. 11, 2017,

[4] Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting capital punishment for juveniles); Graham v. Florida, 560 U.S. 48 (2010) (prohibiting life without parole for juveniles who did not commit homicide).

[5] Graham, 560 U.S. at 82.

[6] Gretchen Gavett and Sarah Childress, Supreme Court Bans Mandatory Life Terms for Kids: What it Means, PBS, June 25, 2012,

[7] Kristina E. Music Biro, et. al., Life sentence as constituting cruel and unusual punishment—Life without parole for juveniles, 21A Am. Jur. 2d Crim. Law § 878 (2018).

[8] Miller v. Alabama, 567 U.S. 460, 469 (2012) (quoting Roper, 543 U.S. at 560).

[9] Id. (quoting Weems v. United States, 217 U.S. 349, 367 (1910)).

[10] Id. at 471.

[11] Schwartzapfel, supra note 1.

[12] Sara E. Fiorillo, Note, Mitigating after Miller: Legislative Considerations and Remedies for the Future of Juvenile Sentencing, 93 B.U. L. Rev. 2095, 2107 (2013); see, e.g., Ex parte Henderson, 144 So.3d 1262, 1284 (Ala. 2013).

[13] Schwartzapfel, supra note 1.

[14] Supreme Court Rules Against Mandatory Life without Parole for Children, ACLU (June 25, 2012),

[15] Gavett, supra note 6.

[16] 183 So.3d 220, 222 (Ala. 2015).

[17] Id. at 221.

[18] Id. at 230-31.

[19] 136 S.Ct. 718, 724 (2016).

[20] Id. at 723.

[21] Id. (quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989)).

[22] Id.  at 724 (quoting Schriro v Summerlin, 542 U.S. 348, 352 (2004)).

[23] Id.

[24] Juvenile Life without Parole Sentences in the United States, Juvenile Sentencing Project, Quinnipiac School of Law,, June 28, 2017.

[25] Id.

[26] Miller, 567 U.S. at 479-80 (quoting Roper, 543 U.S. at 573).

[27] 50-state examination, Locked Up for Life, Associated Press,, July 31, 2017.

[28] Alabama grapples with new juvenile sentencing rule, Associated Press,, July 31, 2017, 7:56 AM.

[29] State v. Zarate, 2018 Iowa Sup. Lexis 23, *5-6.

[30] Sharon Cohen and Adam Geller, Parole for young lifers inconsistent across US, Associated Press,, July 31, 2017.

[31] Marsha Levick, 5 Years After Miller v. Alabama, Looking to the States for Justice,, 6/29/17, 3:05 PM ET; Miller v. Alabama, 567 U.S. 460, 479 (2012).

Past Posting: New Jersey’s Gamble to End the Professional and Amateur Sports Protection Act

Photo Credit:

By: Hunter Hamm, Research and Writing Editor

On May 14, 2018, the United States Supreme Court legalized gambling on individual sporting events. Sports betting is a common form of gambling in the United States, and illegal sports betting is currently estimated to range from $100-$200 billion per year.[1] Traditionally, sports gambling has faced strong opposition in America.[2] Since the nineteenth century, gambling was largely made illegal.[3] Opponents of the practice parallel the introduction of sports betting to that of gateway drugs, introducing “young people with a strong interest in sports” to other types of gambling.[4] Moreover, past corruption created from sports betting has seriously damaged the legacy of professional sports.[5]

Historical Background

Though restrictions on sports betting have gradually loosened, it seemed as if sports betting would be a legalized form of gambling in the United States during the 1990’s.[6] As fear of the growing consensus developed among several federal and state legislatures, they began to take measures to curb the spread of sports betting.[7] One such measure was the Professional and Amateur Sports Protection Act (PAPSA). Ironically, it was a former college and professional basketball player, Senator Bill Bradley of New Jersey, who lead the passage of the Act.[8] Senator Bradley continually “stressed that the law was needed to safeguard the integrity of sports.[9]

PAPSA’s primary constitutional issue was that it prohibited the States from endorsing or “‘authoriz[ing] by law . . . betting . . . on’ competitive sporting events.”[10] However, PAPSA itself did not make sports gambling a federal crime.[11] It allowed the Attorney General and sports organizations to enjoin proposed laws through civil action.[12] When Congress passed PAPSA, the Act allowed several states to continue the practice for a number of years.[13] The Act provided specific exceptions for Nevada casinos, and it had grandfather provisions for sports lotteries or sports pools in three other states.[14] PAPSA also gave New Jersey a one-year window after the passage of the Act to legalize sports gambling “‘in a municipality’ with an uninterrupted 10–year history of legal casino gaming.”[15] As many can guess, the only municipality this could refer to was Atlantic City.[16] The state, however, did not act within this restrictive time-frame, and a decade later the legislature decided to amend its constitution, officially authorizing sports gambling.[17]

Soon after the New Jersey legalized sports betting, many major professional sports leagues brought action in federal court to enjoin the new legislation.[18] Upon learning that there would be a partial repeal of its constitutional amendment, New Jersey enacted the legislation in 2014 that brought this sports betting case to the Supreme Court.[19] The law artfully expressed that the law was not intended to authorize sports betting, which was banned under PAPSA.[20] Instead, it sought to repeal former New Jersey laws that expressly prohibited it.[21] The law was only effective “as to wagers on sporting events not involving a New Jersey college team or a collegiate event taking place in the State.”[22] Additionally, the new law specifically repealed state laws prohibiting sports betting concerning the “placement and acceptance of wagers on sporting events by persons twenty-one years of age or older at a horseracing track or a casino or gambling house in Atlantic City.”[23]

The Case for Sports Betting

The issue decided before the Supreme Court in Justice Alito’s majority opinion was that of the Constitutional concept of dual sovereignty.[24] The petitioners (including the State of New Jersey) argued that PAPSA’s “anti-authorization provision requir[ed] States to maintain their existing laws against sports gambling,” and “any state law . . . permitting sports gambling, including a law totally or partially repealing a prior prohibition [established before PAPSA], amounts to an authorization.”[25] This was a very broad interpretation of the effect of PAPSA. The respondents (including the National Collegiate Athletic Association), however, suggested that for a state to be in violation of the Act, the authorization of sports betting must be narrowly constricted to be “an affirmative action.”[26] Specifically, they alleged that New Jersey had “empower[ed] a defined group of entities, and it endow[ed] them with the authority to conduct sports gambling operations.”[27]

Any order from Congress compelling or coercing the governments of the States to act would be a commandeering of the States’ governments, which is prohibited under the Constitution and Anglo-American case law.[28] The anti-commandeering doctrine “withhold[s] from Congress the power to issue orders directly to the States.”[29] After the states declared their independence, they retained their individual sovereignty.[30] With the passage of the Constitution, the “residuary and inviolable sovereignty” of the States was limited, but it was not abolished.[31] Instead, the federal government and the States are dually sovereign, hence establishing the concept of dual sovereignty.[32] Article VI, clause 2 of the Constitution has made federal law the “Supreme Law of the Land,” effectively allowing federal law to preempt contrary state law.[33] As a check to the preemption of state law, Congress is to act according to the enumerated powers granted in the Constitution, and the States reserve all other legislative power.[34]

The Supreme Court concluded that PAPSA effectively placed state legislatures under the direct control of Congress, contravening the principles set forth by New York v. United States[35] and violating the anti-commandeering doctrine.[36] Analogizing the passage of the Act to an armed takeover of the state legislatures, the majority deemed this Act to be utterly averse to the ideals of dual sovereignty.[37]

The Court reasoned that for PAPSA to preempt state law, (1) “it must represent the exercise of a power conferred on Congress by the Constitution,” and (2) “the PAPSA provision at issue must be best read as one that regulates private actors.”[38] Because the respondents (1) merely “point[ed] to the Supremacy Clause” to justify the Act and (2) PAPSA attempted to regulate the States instead of private actors, PAPSA effectively commandeered the state governments.[39] The respondents’ arguments failed to satisfy the preemption test and therefore violated the principles of the anti-commandeering doctrine.[40] Moreover, because the respondents failed to persuade the Court to uphold any provision of the Act, the Court decided to strike down PAPSA in its entirety.[41]

It is important to note, however, that Congress is still able to regulate sports betting. In reversing the Third Circuit’s holding that the New Jersey law was in violation of PAPSA, the Court noted that “Congress can regulate sports gambling directly, but if it elects not do so, each State is free to act on its own.”[42] While the majority took issue with the PAPSA’s infringement of the Constitutional principles of dual sovereignty, Justice Ginsburg stated in her dissent that Congress still maintains the power to regulate gambling nationwide.[43] Justice Ginsburg believes that it was Congress’s intent to “exercise its authority to regulate commerce by instructing States and private parties to refrain from operating sport’s gambling schemes.”[44] If the majority were to have deleted the alleged commandeering directions, PAPSA would have fulfilled Congress’s goal to “stop[] sport-gambling regimes while making it clear that the stoppage is attributable to federal, not state, action.”[45]

Moving Forward

Since Murphy, over a dozen states have attempted to legalize sports betting.[46] Some professional sports leagues believe that they should receive a cut of the money gambled.[47] “All the pro sports leagues, including the PGA Tour and the NCAA, have been involved.”[48] Dan Spillane, the senior vice president of the NBA and assistant general counsel, recently met with the New York Senate’s Racing, Gaming and Wagering Committee to establish a statutory framework for legalized sports-gambling. [49] Spillane’s concept of the “ideal gambling environment” is one in which the NBA and other professional sports leagues would receive compensation for the commercial value that betting creates and for its associated risks.[50] It is estimated that the leagues can earn up to $2 billion annually from such compensation, which gambling operators are loath to lose.[51] Spillane suggests that the money will be used to invest in compliance and enforcement; however, detractors are deeply opposed to this investment labeling it as a mere “integrity fee.”[52] The NBA disputes the oppositions to integrity fees, claiming that “a larger legal market would create a better margin for casinos.”[53] In the end no matter the how much regulation sports betting will inevitably incur, everyone is going to want a share of the profits. So as for now, it appears that only time will uncover the effects of legalized sports betting in the United States.

[1] Potential for Sports Betting in N.Y. State: Pub. Hearing Before the N.Y. State S. Standing Comm. on Racing, Gaming and Wagering, 2017-2018 Leg. Sess. (N.Y. 2018) (statement of Dan Spillane, Senior Vice President and Assistant General Counsel of the National Basketball Association).

[2] Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1469 (2018).

[3] Id. at 1469-70.

[4] Id. at 1469 (citing Sen. Bill Bradley, The Professional and Amateur Sports Protection Act-Policy Concerns Behind Senate Bill 474, 2 Seton Hall J. Sport L. 5, 7 (1992) (“Legalized sports betting would teach young people how to gamble. This, in turn, would lead these children to illegal gambling once they discover that the odds and pay-offs are better.”)).

[5] E.g., id. at 1469-70 & n.17 (“[I]n 1919, professional gamblers are said to have paid members of the Chicago White Sox to throw the World Series, an episode that was thought to have threatened baseball’s status as the Nation’s pastime.”).

[6] Murphy, 138 S. Ct. at 1469-70.

[7] Id. at 1470.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 1470.

[12] Murphy, 138 S. Ct. 1461 (2018), at 140-71.

[13] Id. at 1471.

[14] Id.; Debra Weiss, Supreme Court strikes down federal law that bans sports betting, ABA Journal (May 14, 2018),

[15] Murphy, 138 S. Ct. at 1471 n.27 (quotations omitted).

[16] Id.

[17] Weiss, supra note 14.

[18] Murphy, 138 S. Ct. at 1471.

[19] Id. at 1472.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Murphy, 138 S. Ct. at 1468.

[25] Id. at 1473.

[26] Id.

[27] Id.

[28] See Printz v. United States, 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”); New York v. United States, 505 U.S. 144, 156 (1992) (“If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.”).

[29] Murphy, 138 S. Ct. at 1475.

[30] Id.

[31] Id.

[32] Id. (citing Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)).

[33] Id.; see U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”)

[34] Murphy, 138 S. Ct. at 1476; see U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).

[35] 505 U.S. 144, 156 (1992).

[36] Murphy, 138 S. Ct. at 1477; see New York, 505 U.S. at 166-68 (noting that Congress may encourage or withhold incentives from the states through the spending power and the Commerce Clause, but it may not “compel[] States to regulate.”).

[37] Id. at 1478 (“It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislatures from voting on any offending proposals.”).

[38] Id. at 1479.

[39] Id.

[40] Id. at 1481.

[41] Id. at 1484.

[42] Murphy, 138 S. Ct. at 1484-85.

[43] See id. at 1489 (Ginsburg, J., dissenting) (“Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” (quoting Gonzales v. Raich, 545 U.S. 1, 17 (2005)).

[44] Id.

[45] Id.

[46] See, e.g., Ryan Rodenberg, How close is my state to legalizing sports betting? ESPN (May 14, 2018) (discussing the potential for certain states to initiate legislation allowing for sports betting).

[47] Potential for Sports Betting in N.Y. State: Pub. Hearing Before the N.Y. State S. Standing Comm. on Racing, Gaming and Wagering, 2017-2018 Leg. Sess. (N.Y. 2018) (statement of Dan Spillane, Senior Vice President and Assistant General Counsel of the National Basketball Association); Matt Bonesteel, If sports gambling is legalized, the NBA wants in on the profits, Washington Post (January 25, 2018),

[48] Brian Windhorst, How the NBA, MLB are lobbying states to cash in on sports betting, ESPN (May 14, 2018),

[49] Matt Bonesteel, Sports gambling ‘integrity fee’ supporters are not doing themselves any favors, Washington Post (May 22, 2018),

[50] Potential for Sports Betting in N.Y. State: Pub. Hearing Before the N.Y. State S. Standing Comm. on Racing, Gaming and Wagering, 2017-2018 Leg. Sess. (N.Y. 2018) (statement of Dan Spillane, Senior Vice President and Assistant General Counsel of the National Basketball Association); Bonesteel, supra note 47.

[51] See Bonesteel, supra note 47 (“That fee would be a massive financial windfall for the leagues, with one estimate by a gaming research firm pegging annual revenue at a collective $ 2billion should states with legalized gambling agree to compensate the leagues.”).

[52] See, e.g., Bonesteel, supra note 49; Windhorst, supra note 48.

[53] Windhorst, supra note 48.

With the recent growth of the public domain, will America See Another Copyright Term Extension?

Photo Credit:

By: Kim Massey

Member, American Journal of Trial Advocacy


The first of January is generally celebrated as Public Domain Day, and in 2019, Public Domain Day was once again celebrated as works from 1923 entered the public domain[1] and became “free as the air to common use.”[2] Public Domain Day is when the copyright term for works—such as books, films, and musical compositions—expires.[3] However, in 1998, Congress extended the copyright term for future works and works that still enjoyed copyright protections by an additional twenty years.[4] This act—the Sonny Bono Copyright Term Extension Act—virtually prevented any works from entering the public domain for the last twenty years.[5] While the Sonny Bono Copyright Term Extension Act (CTEA) was challenged as unconstitutional, the Supreme Court upheld the constitutionality of the CTEA.[6]

Brief History of Copyright Terms

One of Congress’ enumerated powers granted by the Constitution is the power to grant copyrights.[7] With this power, the first Congress passed the Copyright Act of 1790 which created a fourteen-year term with the option to renew for another fourteen years if the author was still living.[8] About forty years later, Congress extended the copyright term to twenty-eight years from fourteen, but leaving the renewal at fourteen years.[9] The next copyright term extension came in 1909 after authors lobbied to have the term extended, claiming that having their works lose copyright protections during their lives was unfair.[10] Thus, the Copyright Act of 1909 was enacted.[11] The Copyright Act of 1909 extended copyright protections for a total of fifty-six years, leaving the original term for twenty-eight years, but now extending the renewal term to twenty-eight years.[12] In 1976, in response to the developing technology of the twentieth century, Congress passed the most expansive change to copyright law yet.[13] The Copyright Act of 1976 extended the copyright term to last the author’s lifespan plus an additional fifty years after the author’s death.[14] The next revision of the copyright term would come in 1998 with the CTEA, which added an additional twenty years of copyright protection.[15] This meant that authors would enjoy copyright protections for their entire life, plus an additional seventy years after their death.[16] However, the CTEA did not only apply to future works; the CTEA applied retroactively to any already existing works not yet in the public domain, which was the base of the constitutional challenge to the CTEA.[17]

Eldred v. Ashcroft

In 2003, the Supreme Court granted certiorari in Eldred v. Ashcroft[18] to decide whether Congress exceeded its power under the Copyright Clause of the Constitution.[19] The Petitioners’ products built on other works with expired copyright terms that were in the public domain.[20] The Petitioners argued that because the Copyright Clause states that authors may enjoy protections “for limited Times,” Congress exceeded its power when it extended the copyright term for existing works.[21] The Court held that “for limited Times” did not prevent Congress from extending the copyright term of existing works and looked to previous copyright term extensions by Congress[22] and instances when Congress extended patent terms.[23] The Court also gave deference to Congress when deciding the rationality of the extension.[24] Thus, the Court found the CTEA was constitutional and affirmed the lower courts.[25]

Justice Breyer dissented from the majority opinion arguing that the CTEA was unconstitutional because this extension “ma[de] the copyright term not limited, but virtually perpetual,” and only inhibited “the progress of ‘Science’—by which word the Framers meant learning or knowledge,” contrary to the Copyright Clause.[26] Justice Breyer further argued that the CTEA did not benefit the authors of works with the additional twenty years of protection, but instead benefited “their heirs, estates, or corporate successors.”[27] He stated the purpose of the Copyright Clause and a copyright term “for limited Times” was so that the recipients of an author’s work would “not be permanently deprived of the fruits of an artist’s labors.”[28] The Copyright Clause should incentivize authors to create, but in the end, the Copyright Clause is to benefit society by promoting the progress of science and art.[29]


The big question now is whether Congress will extend the copyright term again and if so, by how much.[30] The Senate is now considering a new bill—”Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” or the “CLASSICS Act.”[31] The CLASSICS Act would provide potentially 144 years of protection for musical recordings recorded before 1972.[32] Whether this bill will pass the Senate and then whether it will be challenged are both yet to be seen. If Congress enacts another Copyright Act to extend copyright terms, how the Court would rule on the constitutionality of another extension is undetermined. The Court may deliver another Eldred opinion, giving deference to Congress and its decision to extend the copyright term again.[33] However, the Court’s decision was not unanimous in Eldred, with Justices Stevens[34] and Breyer dissenting.[35] This lack of unity could indicate that the Court would come to a different conclusion today if deciding a new challenge to copyright term extensions. The future of copyright terms is unknown, but with the current landscape of intellectual property, some sort of legislation likely will not be proposed.[36]

[1] See Public Domain Day 2019, Ctr. for Study Pub. Domain (last visited Feb. 7, 2019), (“For the first time in over 20 years, on January 1, 2019, published works will enter the US public domain.”).

[2] Int’l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).

[3] See Public Domain Frequently Asked Questions, Teaching Copyright (last visited Feb. 7, 2019), (“Public domain works are not restricted by copyright and do not require a license or fee to use.”); Public Domain Day—Frequently Asked Questions, Ctr. for Study Pub. Domain (last visited Feb. 7, 2019), (providing a list of frequently asked questions relating to Public Domain Day).

[4] Sonny Bono Copyright Term Extension Act, 17 U.S.C. §§ 108, 203, 301 – 304 (1998); see H.R. Rep. No. 105-452, at 3 (1998) (“[T]he ‘Copyright Term Extension Act,’ will extend the term of copyright protection in all copyrighted works that have not fallen into the public domain by twenty years”); S. Rep. No. 104-315, at 3 (1996) (“The bill accomplishes these goals [of ensuring adequate copyright protection] by extending the current U.S. copyright term for an additional 20 years.”).

[5] 17 U.S.C. §§ 108, 203, 301 – 304; Public Domain Frequently Asked Questions, Teaching Copyright, (The Sonny Bono Copyright Term Extension Act neither prevents authors from assigning their works to the public domain, nor does it give copyright protections to works that are not copyrightable by nature which go into the public domain no matter what once created.).

[6] See Eldred v. Ashcroft, 537 U.S. 186, 222 (2003) (holding that the Copyright Clause allows Congress to decide what intellectual property right regimes to enact).

[7]  U.S. Const. art. I, § 8, cl. 8 (“The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”).

[8] Copyright Act of 1790, ch. 15, §1, 1 Stat. 124 (1790).

[9] Act of Feb. 3, 1831, ch. 16, §§ 1 – 2, 4 Stat. 436 (1831).

[10] Jenny L. Dixon, The Copyright Term Extension Act: Is Life Plus Seventy Too Much?, 18 Hastings Comm. & Ent. L. J. 945, 957 (1996).

[11] Act of Mar. 4, 1909, ch. 320, 35 Stat. 1075 (1909).

[12] Id.

[13] See Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §§ 101 – 808 (1994 & Supp. 1997)).

[14] Id.

[15] 17 U.S.C. §§ 108, 203, 301 – 304.

[16] Id. at § 302. (Works of corporate authorship now enjoy a ninety-five year copyright term.).

[17] Id. at § 303; see generally Eldred v. Ashcroft, 537 U.S. 186, 192 (2003) (“This case concerns the authority the Constitution assigns to Congress to prescribe the duration of copyrights.”).

[18] 537 U.S. 186 (2003).

[19] U.S. Const. art. I, § 8, cl. 8; Eldred, 537 U.S. at 192 – 93 (The Petitioners also argued that the CTEA violated the First Amendment.).

[20] Eldred, 537 U.S. at 193.

[21] Id. (The Petitioners did not argue that Congress exceeded its power by extending the copyright term for future works.).

[22] Id. at 204.

[23] Id. at 201 – 03 (The Copyright Clause also covers patents.).

[24] Id. at 204 – 07.

[25] Id. at 221 – 22.

[26] Eldred, 537 U.S. at 243 (Breyer, J., dissenting).

[27] Id.

[28] Id. at 245 – 46 (quoting Stewart v. Abend, 495 U.S. 207, 228 (1990)).

[29] Id. at 247.

[30] See 1 Howard B. Abrams & Tyler T. Ochoa, The Law of Copyright § 1:19 (2018) (analyzing the Court’s decision in Eldred to predict whether another copyright term extension act will be proposed and passed).

[31] S. 2393, 115th Cong. (2018).

[32] Id.

[33] See Eldred, 537 U.S. at 204 – 07.

[34] See id. at 242 (Stevens, J., dissenting) (claiming the majority’s decision ignores “the central purpose of the Copyright/Patent Clause”).

[35] See id. at 267 (Breyer, J., dissenting) (claiming the CTEA falls outside of Congress’ legislative power).

[36] See Timothy Vollmer, Is Copyright Term Extension Finally Done?, Creative Commons, (Jan. 15, 2018), (noting that the internet has changed has copyright issues are being handled in politics); Timothy B. Lee, Why Mickey Mouse’s 1998 Copyright Extension Probably Won’t Happen Again, ArsTechnica, (Jan. 8, 2018, 7:00 AM), (“[T]here seemed to be universal agreement that another copyright extension was unlikely to be on the agenda this year.”).

A Picture is Worth a Thousands Words :)

Photo Credit:

Written By: Mary Margaret Clark
Member, American Journal of Trial Advocacy

There is something happening that very few in the legal profession saw coming: emojis. Tiny pictures of facial expressions used in text messages and social media are now becoming the subject of legal disputes.[1] The lawsuits involving the images are spanning from business transactions to harassment claims to actions for defamation.[2]   Emojis are typically used to provide context in a text message by “standing in for facial expressions” and can sometimes be used as a filler for an entire word.[3]  Although emojis have the potential to offer clarity to messages, the legal profession has seen the opposite as it begins to decipher the intent behind emojis.[4] 

The number of cases that mention emojis in the United States has doubled in only two years, growing from about fourteen in 2015 to at least thirty-three in 2017.[5]  Eric Goldman, a law professor from Santa Clara University, has seen three cases involving emojis just this year.[6]   It is true that “[t]here are no limits to the emojis possibilities. . . people are just going to keep using technology to communicate”[7]  and the pop culture phenomenon of emojis is likely here to stay.[8] Therefore, with its increasing popularity, many are raising their eyebrows in light of how emojis will be handled in the courtroom in the future.[9]  It is more imperative now than ever to consider the evidentiary value that emojis can provide.

Emojis as Evidence in Criminal Cases

One of the most important questions centered around emojis in criminal cases is: Should the symbols that people use in their text messages and social media posts be interpreted as “literal portrayals of the sender’s thoughts and intentions for purposes of criminal conviction?”[10]  Prosecutors have begun to focus on emojis of guns, knives, and explosives as “evidence of intent to commit mayhem.”[11]  Although emojis may not be the ‘nail in the coffin’ for most criminal cases and convictions that involve the use of the images, it is still an important topic for attorneys who wish to bring the emojis in as evidence during trial.[12]  If emojis are found to be so unambiguous in their meaning, then criminal defendants might take heed of their use of emojis in all aspects of social media as it relates to their crimes.

Emojis in Civil Cases


Emojis can often play a vital role in cases regarding libel.[13]  The use of emojis at the end of what some would deem to be a defamatory statement could be found not to be defamatory at all because of the addition of the emoji.  Consequently, what would have been a statement made with malicious intent could become a statement with a sarcastic tone that is neither malicious nor defamatory at all.[14] 

A Michigan court has already considered the question of whether the use of an emoticon, (a symbol similar to an emoji), at the end of what would otherwise be a defamatory statement, is an obvious joke.[15]  This case in particular involved a plaintiff who was a deputy superintendent of public works in the city where he lived.[16]  A forum had been created wherein defendants, under anonymous and fictitious names, posted “false and malicious statements about plaintiff.”[17] The plaintiff then filed a complaint alleging one count of defamation per se.[18]  One of the alleged defamatory statements stated, “[t]hey are only getting more garbage trucks because [plaintiff] needs more tires to sell to get more money for his pockets :P.”[19]  The court did not find this statement defamatory because “the use of the ‘:P’ emoticon [made] it patently clear that the commentator was making a joke.”[20]  The court further explained that the “:P” emoticon denotes jokes and sarcasm.[21] Therefore, with the use of one emoticon, a possible defamatory statement could be found to have been sarcastic.  Does this mean that anyone can post a defamatory statement, add an emoji or emoticon at the end, and a court would find it to be sarcastic or a joke, thereby relieving the declarant of liability? This, and many others, is the implication of emojis in defamatory cases.

Contract Disputes

The phenomena of emojis has even made its way into the contract realm.  In a federal court case involving a high-end bag and accessory company, Dooney & Bourke, the court noted that the use of a smiley face emoji insinuated casual communications that had occurred between the plaintiff company’s president and the defendant.[22]  Therefore, the emoji that was used in the communication between the parties was taken into consideration, among other factors, and the court ultimately ruled that the contract was unenforceable.[23]  This highlights the fact that using emojis and emoticons in emails included in the discussion of contracts could be found to be void, but because there is no uniform method of deciphering the intent of emojis, the contract could be upheld in some jurisdictions. 

There has also been discussion about problems that may result from emojis used in the documentation of real estate transactions.[24]  Although hypothetical, it is easy to imagine an emoji depicting a handshake, thumbs-up, or even the hand holding a pen being sent during the negotiation phase of a real estate transaction.[25]  Thus it may be an area in which counsel, who negotiates deals electronically, would advise their client to not send any kind of emoji as its use may be “accompanied by unequivocal language.”[26]

Harassment and Discrimination in the Workplace

Emoticons, the predecessor of emojis, have also been worth mentioning in harassment claims in the workplace.[27]  The Delaware Chancery Court previously grappled with the issue of an emoticon in a sexual harassment suit.[28]  That case revolved around an ongoing feud between long term business partners, during which time the defendant allegedly harassed his co-CEO plaintiff.[29]  The court found “the smile-face emoticon at the end of [defendant’s] text message suggest[ed] he was amused by yet another opportunity to harass [the plaintiff]. . . .”[30]  The Delaware judge, therefore, found the relationship had deteriorated to the extent that a custodian was necessary to be appointed to sell the business.[31]  The result of the case did not ultimately rest on the use of the emoticon in the text message, but it was addressed by the court and found it to have furthered the dispute between the parties.[32]

Discrimination claims involving the use of emojis have also been an issue in workplace emails.[33]  For instance, an Ohio court was faced with the question of whether the use of “frowning emoticons in emails related to plaintiff’s performance connoted an ill-will or malice toward him.”[34]  The trial court held that, although the use of emoticons in emails related to the plaintiff’s performance could have been seen as “unprofessional or immature,” the opinions expressed in the emails in conjunction with the emoticons “[did] not give rise to the level of malice, bad faith, or reckless conduct.”[35]

Looking Forward with Emoji

The uncertainty of how an emoji will be understood is the problem that remains for the everyday user of emojis and emoticons.  A British court’s finding of an emoji as a source of liability has spurred the question of whether the use of an emoji would “trigger liability in the United States.”[36] As the number of cases continues to rise, it seems as though the United States does not yet know how to answer the question of emojis.  Further, there may be a disparate impact if emojis are interpreted one way in a certain jurisdiction and are given a completely different meaning in another.

Perhaps an “emoji dictionary” should be created or certain contexts or platforms should begin to warn people about potential miscommunications that could arise if they use the symbols.[37] There is also the possibility of Congress enacting legislation that would bring clarity to the meaning of emojis used in text messages, emails, and social media.[38]  No matter what method is created to combat the uncertainty of the symbols’ interpretation in courtrooms, one thing is for sure, trial lawyers can no longer overlook emojis.

[1] Mike Cherney, Lawyers Faced With Emojis and Emoticons Are All ¯\()/¯, The Wall Street Journal (Jan. 29, 2018 11:39 AM),

[2] Id.

[3] John G. Browning & Gwendolyn Seale, More Than Words The Evidentiary Value of Emoji, 57 DRI for Def. 34 (2015).

[4] Tanya M. Kiatkulpiboone & Andrea W. Paris, Emoji and Deciphering Intent in the Digital Age, 59 Orange County Law. 42, 42 (2017).

[5] Cherney, supra note 1.

[6] Id.

[7] Id.

[8] Kiatkulpiboone & Paris, supra note 4. 

[9] Mark Walsh, Emojis Head to a Courthouse Near You, 103-OCT A.B.A. J. 11 (2017).

[10] Brian Sullivan, ‘Just Kidding’;), 102 A.B.A. J. 71 (2016).

[11] Id.

[12] Id.

[13] Browning & Seale, supra note 3.

[14] Id.

[15] Ghanam v. Does, 895 N.W.2d 128, 145 (Mich. Ct. App. 2014).

[16] Id. at 132.

[17] Id.

[18] Id.

[19] Id. at 145.

[20] Id.

[21] Ghanam, 895 N.W. at 145.

[22] See Parcel Mgmt. Auditing and Consulting, Inc. v. Dooney & Bourke, Inc., No. 3:13-CV-00665(JAM), 2015 WL 796851, at *1 (D. Conn. Feb. 25, 2015) (including the picture of the emoji used in the email to show the casual nature of the communications between the parties.)

[23] Id. at *4.

[24] Kiatkulpiboone & Paris, supra note 4, at 46. 

[25] Id.

[26] Id.

[27] See Scroggin v. Credit Bureau of Jonesboro, Inc., 973 F. Supp. 2d 961, 976 (E.D. Ark. 2013) (noting a text thread that included harassing messages including one that said “[s]o walk into that federal courtroom with me and get ready for the biggest [train wreck emoticon] ever.”).

[28] In re Shawe and Elting LLC, C.A. No. 9661-CB, 2015 WL 4874733, at *23 (Del. Ch. Aug. 13, 2015).

[29] Id.

[30] Id.

[31] Id.

[32] Id. at 31.

[33] See Arnold v. Reliant Bank, 932 F. Supp. 2d 840, 854 (M.D. Tenn. 2013) (discussing a woman who claimed she was discriminated against on the basis of gender and also alleged a hostile work environment, but the court mentioned a smiling emoticon in her annual self-assessment form about her job satisfaction).

[34] Kara v. Ohio Dept. of Taxation, No. 2012-03794, 2014 WL 713335, at *7 (Ohio Ct. Cl. Feb. 21, 2014).

[35] Id.

[36] Nicole Pelletier, The Emoji that Cost $20,000: Triggering Liability for Defamation on Social Media, 52 Wash. U. J. L. & Pol’y 227, 231 (2016).

[37] Walsh, supra note 9.

[38] See Pelletier, supra note 35, at 251 (“Congress must enact new federal legislation that comprehensively addresses social media offenses.”).

America: Land of the Free and Home of the Falsely Imprisoned

By: Allyson Swecker

Articles and Symposium Editor, American Journal of Trial Advocacy

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[1] These words from the Fourteenth Amendment to the Constitution seem fairly straightforward. Unfortunately, in the case of United States citizen Davino Watson, these words provided no protection from a three-year false imprisonment amidst deportation proceedings. The Fourteenth Amendment was created to ensure that no person be deprived of their freedom “without due process of law.”[2] This is true regardless of whether a person is a United States citizen.[3] For Davino Watson, the Fourteenth Amendment provided seemingly no protection.

Thirteen-year-old Watson immigrated to the United States in 1998 with his father, who at the time was a permanent resident of the United States.[4] In 2002, at the age of seventeen, Watson became a United States citizen when his father became a naturalized citizen.[5] Watson ran into trouble in 2007 when he became involved with selling cocaine, and ultimately plead guilty in a New York state court for his criminal activity.[6] While Watson was serving his sentence in a New York state prison, Immigrations and Customs Enforcement (“ICE”) was investigating his citizenship status in an effort to determine his eligibility for deportation.[7]

According to the Second Circuit Court of Appeals, “[t]he investigation [into Watson’s citizenship status] was beset by errors.”[8] Watson provided ample information, including the names of his father and stepmother, as well as the telephone number for their home, in order to validate his status as a U.S. citizen.[9] ICE agents never called the telephone number, but they did make feeble attempts to identify and locate Watson’s father.[10] Yet, instead of locating Watson’s father, Hopeton Ulando Watson, ICE agents located Hopeton Livingston Watson who was a non-U.S. citizen.[11] In addition to the incorrect name, ICE agents failed to note that this Hopeton Watson did not live in New York, as indicated by Watson, but instead resided in Connecticut.[12] Moreover, this man did not have a child named Davino Watson and did not become a lawful permanent resident of the United States until three years after Watson’s actual father did so.[13]

After ICE agents neglected to call the phone number Watson provided for his father, and after their subsequent incorrect identification of Watson’s father,, Watson ultimately found himself in prison even after an appeal because he “was ineligible for derivative citizenship under the [Board of Immigration Appeals]’s then-current interpretation of Jamaican law.”[14] In November 2011, following several appeals in various courts, ICE determined that it was actually possible for Watson to be a U.S. citizen and released Watson “into rural Alabama (where he knew nobody), without money, and without being told the reason for his release.”[15] After a long and difficult road, Watson finally received his certificate of citizenship, which stated that he had been a citizen since 2002, when his father was naturalized.[16]

Watson decided to file suit against the Government for false imprisonment based on the Federal Tort Claims Act.[17] The district court found that the government was liable to Watson, and awarded damages against the Government.[18] Unfortunately, on appeal, the Second Circuit determined that Watson was in fact not entitled to damages because the statute of limitations had been tolled on his false imprisonment claim while he was still in prison and unaware that he had a claim against the government.[19] The court examined whether Watson might be entitled to an equitable statute of limitations, wherein he might be entitled to an extended limitation period.[20] In the Second Circuit, “it is not enough for a party to show that he experienced extraordinary circumstances. He must further demonstrate that those circumstances caused him to miss the original filing deadline.”[21] Regrettably, the court held that Watson did not meet the requirements for equitable tolling of the statute of limitations.[22]

Watson additionally brought two negligence claims against the government: one for a negligent investigation on the part of the ICE agents, and the other for USCIS negligently failing to provide his citizenship certificate for a period of over two years after his release.[23] The district court dismissed both claims after a motion from the defense, and the Second Circuit affirmed the district court’s dismissal.[24] Specifically, the court chose not to accept Watson’s argument that the ICE agents failed to follow internal regulations, and therefore they were negligent in their investigation into his citizenship.[25] The court cited a similar case wherein the plaintiff “failed to establish that New York law recognizes a freestanding duty to abide by private regulations.”[26] The ICE agents’ failure to abide by private regulations constituted evidence of negligence, but did not “demonstrate ‘negligence in itself.’”[27] There is no law in the State of New York imposing a duty to abide by private rules and regulations, and therefore the court could not allow Watson’s first negligence claim to go forward.[28]

Regarding Watson’s second negligence claim for the delayed certificate of citizenship, the district court determined that Watson was unable to secure employment because of “his criminal history, drug use, and general lassitude, not his immigration status.”[29] Moreover, the court determined that the depression Watson suffered after his release from custody was not sufficiently shown to be caused by “the government’s failure to provide a certificate of citizenship earlier than it did.”[30] The Second Circuit determined that the district court imposed a complete bar on Watson’s second negligence claim because he failed to establish damages.[31]

The Second Circuit admits that “there is no doubt that the government botched the investigation into Watson’s assertion of citizenship, and that as a result a U.S. citizen was held for years in immigration detention and was nearly deported.”[32] Regrettably, Davino Watson will receive no compensation for his legitimate claims based on the tolling of the statute of limitations while he was still in detention, nor for his negligence claims based upon a lack of “cognizable damages.”[33]

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

[2] Id.

[3] Boumediene v. Bush, 553 U.S. 723, 743 (2008) (“the substantive guarantees of the Fifth and Fourteenth Amendments protect[] persons as well as citizens, foreign nationals who have the privilege of litigating in our courts . . . .”) (citation omitted).

[4] Watson v. United States, 2017 WL 3221270, at *1 (2d Cir. July 31, 2017).

[5] Id.

[6] Id. at *2.

[7] Id.

[8] Id.

[9] Id.

[10] Watson, 2017 WL 3221270, at *2.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at *2-3.

[15] Id. at *3.

[16] Watson, 2017 WL 3221270, at *4.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at *5-6.

[21] Id. at *5 (quoting Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011)) (emphasis in original).

[22] Watson, 2017 WL 3221270, at *7.

[23] Id. at *8-9.

[24] Id. at *8.

[25] Id.

[26] Id. (quoting McGowan v. United States, 825 F.3d 118, 127 (2d Cir. 2016)).

[27] Id. (quoting McGowan v. United States, 825 F.3d 118, 127 (2d Cir. 2016)).

[28] Watson, 2017 WL 3221270, at *8.

[29] Id. at *9 (citation omitted).

[30] Id. (citation omitted).

[31] Id.

[32] Id.

[33] Id.

Braggs v. Dunn—The Eighth Amendment’s ban on cruel and unusual punishment as applied to mental health

Photo Credit: Marc Goldberg, Tel Aviv Schizophrenia, Marc’s Words

By: Lisa K. Cagle
Associate Editor, American Journal of Trial Advocacy

Incarceration in the United States has been on the rise for decades,[1] causing the U.S. to have the highest incarceration rate in the world.[2] According to a study by the Department of Justice, more than half of these inmates have mental health problems diagnosable under the DSM-IV.[3] Given that 95% of inmates eventually leave prison and return to the general population,[4] the entire population benefits from treating these mental health problems. Furthermore, in 1976, the Supreme Court of the United States recognized the importance of treating prisoners’ medical conditions and declared that deliberate indifference to prisoners’ serious medical needs is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.[5] Recently in Braggs v. Dunn,[6] a federal court in Alabama addressed the issue of “inadequate mental-health care in prison facilities.”[7]

Alabama Prison Conditions

In an effort to change the mental health care practices in Alabama Department of Corrections (“ADOC”) facilities, a lawsuit was brought against Dunn, the commissioner of the ADOC.[8] After a seven-week trial, the court concluded that the ADOC’s mental health care program was “woefully inadequate” and violated mentally ill prisoners’ Eighth Amendment rights.[9] The court noted that the ADOC has experienced a “skyrocketing” suicide rate in the previous two years and reached several conclusions as to the probable cause of the increase.[10] The court noted two major underlying factors: (1) severe overcrowding and (2) staff shortages of both correctional officers and mental health professions.[11] The combination of these factors resulted in unsafe conditions and inadequate mental health care for prisoners with mental health issues.[12]

The court found the conditions in ADOC facilities to be unsafe in general, and especially for inmates with mental health problems. In a lengthy opinion, the court detailed the difficulty in preventing violence in overcrowded prisons without adequate staffing by correctional officers.[13] The court even noted that multiple expert witnesses were advised against entering many prison areas because their safety could not be assured, even though accompanied by armed guards.[14] In addition to the overall unsafe conditions in the ADOC facilities, the court was concerned with unsafe conditions that particularly effect inmates with mental health problems.[15] Among these were the accessibility of sharp objects in prison and the tie-off points in rooms meant to house potentially suicidal inmates.[16] As exemplified during the trial, one of the plaintiffs who suffered from severe mental illness was segregated and left alone for days.[17] Despite serious concerns by the plaintiff’s medical professionals, the plaintiff was left alone in a room where he used a tie-off point to hang himself.[18]

To compound the unsafe conditions for inmates with mental health problems, the court found the mental health care provided by ADOC was inadequate.[19] Starting with intake, inmates with serious mental health problems are either not identified at all or identified as having a lesser mental healthcare need than their condition requires.[20] The court found this is largely due to mental health professional understaffing: mental health professionals being forced to evaluate more inmates in less time than required to do an adequate evaluation.[21] The problem persists inside the ADOC facilities among those identified as needing mental health services. Due to understaffing, inadequate cell-side individual counseling sessions lasting one to two minutes are common.[22] The court was especially concerned with the lack of supervision over inmates in segregation, where the conditions create an environment that increases the likelihood that the already mentally unstable inmate will decompensate.[23] The court noted that the majority of recent suicides were among inmates in segregation.[24]Based on these findings of fact, the court held that mentally ill prisoners in ADOC facilities were being denied their Eighth Amendment rights.[25]

Eighth Amendment Violations

To succeed on an Eighth Amendment challenge, based on the Supreme Court’s precedential 1976 decision, the court defined three elements plaintiffs must prove:[26]

1) The plaintiff has serious mental health needs;[27]

2) These needs, if left unattended, “pose[] a substantial risk of serious harm”;[28] and

3) The defendants “acted with deliberate indifference to that risk [of harm].”[29]

The court concluded that each of these elements were met based on its findings of fact. First, the plaintiffs demonstrated serious mental health needs based on their diagnosis such as schizophrenia and bipolar disorder.[30] Second, the court found that the combination of staff shortages and inmate overcrowding created a “substantial risk of serious harm” for prisoners with serious mental health needs.[31] The court identified seven specific areas where the serious harm was evident.[32] Among these, the court was particularly concerned about the ADOC’s practice of putting prisoners with mental illness into segregation without proper supervision or access to psychological treatment.[33]

Finally, the court held that the defendants “acted with deliberate indifference” to the risk that inmates with serious mental health needs were at a “substantial risk of serious harm.”[34] The court referenced documentation of the ADOC’s inadequacies in compliance reviews and audits over several years.[35] Commissioner Dunn was repeatedly told about concerns regarding inadequate mental health staffing and the direct correlation to inadequate mental health care.[36] The Commissioner was also notified of problems involving identifying serious mental health concerns and the availability of sharp objects and tie-off points to mentally unstable inmates.[37] Yet, the ADOC disregarded these notices and allowed the “inadequacies [to] persist[] for years and years.”[38] Based on the courts conclusion that each of the requisite elements were met, the court held that the ADOC was “violating the Eighth Amendment rights of the . . . [inmates] with serious mental-health needs . . .[,]” as a result of “persistent and severe shortages of mental-health staff and correctional staff, combined with chronic and significant overcrowding . . . .”[39]

[1] Josiah D. Rich et al, Medicine and the Epidemic of Incarceration in the United States, 364 New Eng. J. Med. 2081, 2081 (2011),

[2] Josiah D. Rich et al, How Health Care Reform can Transform the Health of Criminal Justice-Involved Individuals, 33:3 Health Aff. 462, 462 (2014),

[3] Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics (Dec. 14, 2006),

[4] Rich, supra note 1, at 463.

[5] Estelle v. Gamble, 429 U.S. 97, 104 (1976).

[6]No. 2:14cv601-MHT, 2017 WL 2773833 (M.D. Ala. June 27, 2017).

[7] Braggs, 2017 WL 2773833, at *1.

[8] Id. at *1.

[9] Id. at *6.

[10] Id. at *51.

[11] Id.  at *68.

[12] Id.

[13] Braggs, 2017 WL 2773833, at *17.

[14] Id. at *16.

[15] Id. at *31-32.

[16] Id. at *32.

[17] Id. at *6.

[18] Id.

[19] Braggs, 2017 WL 2773833, at *11.

[20] Id. at *18.

[21] Id. at *18-19.

[22] Id. at *50.

[23] Id. at *47.

[24] Id. at *51.

[25] Braggs, 2017 WL 2773833, at *68.

[26] See generally Estelle v. Gamble, 429 U.S. 97 (1976) (outlining elements that a plaintiff must meet).

[27] Braggs, 2017 WL 2773833, at *9.

[28] Id. at *10.

[29] Id. at *55.

[30] Id. at *10.

[31] Id. at *11.

[32] Id. at *11.

[33] Braggs, 2017 WL 2773833, at *50-51.

[34] Id. at *55.

[35] Id. at *57.

[36] Id.

[37] Id. at *57-58.

[38] Id. at *61.

[39] Braggs, 2017 WL 2773833, at *68.

Do Your Second Amendment Rights Cease at the End of Your Driveway?

By: Charlie Hearn

Executive Editor, American Journal of Trial Advocacy

Do you feel safer at home or in public?  Most people probably answered, “of course I feel safer at home.”  A home offers the opportunity to take necessary precautions to ensure one’s safety; including, in addition to keeping firearms, locking doors and windows, installing an alarm system, installing cameras or motion sensor lights, and even putting up fences, walls, and gates.  Security measures such as these allow individuals to monitor and control what takes place around them at their home.  However, when a person is away from their home, they are without many, if not all, of these security measures.  Once outside of their home, people are no longer able to control who they come in contact with, or what security measures are in place.  These facts drive millions of Americans each day to carry, whether concealed or open, a firearm in public.  However, is this right protected under the Second Amendment?

Second Amendment

On December 15, 1791, the Bill of Rights was adopted after three-fourths of the states consented to it.[1]  The Bill of Rights contains the Second Amendment to the United States Constitution; which states, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[2]  Having a length of less than thirty words has not stopped the Second Amendment from earning a place among the most controversial amendments within the Constitution.  Accordingly, one question that arises is whether the Second Amendment grants individuals the right to bear arms in public for self-defense or only to keep them within their home.[3]  Two recent decisions, Wrenn v. District of Columbia[4] and Peruta v. City of San Diego,[5] hold differing answers to this question.

District of Columbia

On July 25, 2017, the District of Columbia Court of Appeals, in Wrenn v. District of Columbia, analyzed a D.C. provision requiring an individual who wishes to carry a firearm on their person outside of their home to show a “good reason to fear injury to their person or property.”[6]  This “good reason” must be “distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life.”[7]  This law made it all but impossible for the average, responsible citizen to obtain a concealed carry permit.[8]  In fact, prior to this decision, there were only approximately 124 permits issued within the District of Columbia.[9]  That amounts to approximately 1/100th of one percent of the D.C. population holding a concealed carry permit.[10]  This is particularly shocking because, according to John Lott of the Crime Prevention Research Center, if D.C.’s gun laws were aligned with the forty-two right-to-carry states, approximately 48,000 D.C. residents would hold concealed carry permits.[11]

In Wrenn, the District of Columbia Circuit Court of Appeals, in a 2-1 decision, determined “[a]t the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home . . . .”[12]  The court highlighted the fact the Second Amendment grants the “right to ‘bear’ as well as ‘keep’ arms.”[13]  Noting that the United States Supreme Court, in District of Columbia v. Heller (Heller I),[14] defined “bear” as “to ‘wear, bear, or carry [a firearm] upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’”[15]  The court further determined that the traditional “tiers of scrutiny,” i.e., rational basis, intermediate scrutiny, and strict scrutiny, were not applicable in Wrenn.[16]  This is because, as the court determined, “the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.”[17]  Relying on the Court’s holding in Heller v. District of Columbia (Heller II),[18] that although there is a “two-step approach for reviewing the District’s gun laws,” which includes the application of the “tiers of scrutiny,” this approach is “expressly limited to laws significantly less severe than a total prohibition.”[19]  Although the D.C. law did allow a very small portion of the D.C. population to obtain a permit, the court determined that the “law destroy[ed] the ordinarily situated citizen’s right to bear arms not as a side effect of applying other, reasonable regulations . . . but by design: it look[ed] precisely for needs distinguishable from those of the community.”[20]  Thus, the law acted much like a complete or total prohibition.  Therefore, the court reversed the district court and ordered a “permanent injunction against the District [of Columbia’s] good-reason law.”[21] 


In another recent case, the United States Supreme Court denied certiorari in a California case which involved an individual who was denied a concealed carry permit by the San Diego County Sheriff’s Office.[22]  Originally, the Ninth Circuit determined in Peruta v. San Diego, that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense constitutes bearing Arms’ within the meaning of the Second Amendment.”[23]  However, the Ninth Circuit directed, sua sponte, an en banc rehearing of the case.[24]  After this hearing, the Ninth Circuit reversed the panel decision, limiting the decision to the issue of invalidating the “sheriff’s ‘good cause’ interpretation.”[25]  As a result, the court:

Declined to answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public.  It instead held only that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.[26]

Importantly, courts have viewed concealed carry as less of an issue when states allow individuals to openly carry a firearm.[27]  In states that allow open carry, individuals can still exercise their Second Amendment right to bear arms, with a ban on concealed carry only effecting how the person may carry the firearm.[28]  However, because California does not allow open carry, an effective ban on concealed carry prevents law-abiding citizens from exercising their Second Amendment rights.[29]

What’s Next?

            With the Supreme Court deciding 7-2 not to hear Peruta, it may seem unlikely the Court will grant review of Wrenn.  However, Wrenn now creates a circuit split, albeit not a major split, regarding whether the Second Amendment grants the right to members of the general public to carry a concealed firearm.  With President Trump pushing for increased protection of the Second Amendment, it is likely we may see the Executive Branch publicly call on the Court to hear this case.  Stay tuned. 

[1] Holly Munson, FAQ: Basic facts about the Bill of Rights, Constitution Daily (Mar. 22, 2013),

[2] U.S. Const. amend. II.

[3] See Wrenn v. District of Columbia, No. 16-7025, 7067, 2017 WL 3138111 (D.D.C. July 25, 2017) (analyzing a challenge to a D.C. Code limiting licenses for concealed carry to those who establish good reason for fear of injury to their person or property);Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (analyzing a challenge to California counties definition of good cause for obtaining conceal and carry license) cert denied, Peruta v. California, 137 S. Ct. 1995 (2017) (Thomas, J., dissenting) (The State of California properly intervened prior to the Supreme Court’s denial of certiorari.).

[4] Nos. 16-7025, 7067, 2017 WL 3138111 (D.C. Cir. 2017). 

[5] 824 F.3d 919 (9th Cir. 2016), cert denied, Peruta v. California, 137 S. Ct. 1995 (2017) (Thomas, J., dissenting).

[6] Wrenn, Nos. 16-7025, at *1 (quoting D.C. Code § 22-4506(a)-(b)).

[7] Id. (quoting D.C. Code § 7-2509.11(1)(A)).

[8] See generally, Appeals Court blocks DC’s concealed-carry law on Second Amendment grounds, Fox News (July 25, 2017), (explaining the court’s decision, characterizing it as “an outright ban in violation of the Second Amendment”).

[9] Id.

[10] United States Census Bureau, (The District of Columbia’s population in 2016 was approximately 680,000).

[11] Fox News, Supra note 9.

[12] Wrenn, No. 16-7025, 7067, 2017 WL 3138111, at *11.

[13] Id. at *3.

[14] 554 U.S. 570 (2008).

[15] Wrenn, at *3 (quoting Heller I, 554 U.S. at 584 (internal quotations omitted)).

[16] Id. at *11.

[17] Id.

[18] 670 F.3d 1244 (D.C. Cir. 2011).

[19] Wrenn, at *11 (internal quotations omitted).

[20] Id.

[21] Id. at *12.

[22] Peruta v. San Diego, 824 F.3d 919 (9th Cir. 2016) cert. denied, 137 S. Ct. 1995 (2017).

[23] Peruta v. California, 137 S. Ct. 1995, 97 (2017) (Thomas, J., dissenting).

[24] Id.

[25] Id.

[26] Id. (emphasis original).

[27] See Peruta v. California, 137 S. Ct. at 1998 (internal citations omitted).

[28] Id.

[29] Id.