1 New Notification “You Have Been Served”: How the Evolving World of Social Media Will Impact Service of Process

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Photo Credit: Jetsy Beatz, How to Send a Networking DM to Instagram That Works, Entrepreneur, (Nov. 18, 2020) https://www.entrepreneur.com/starting-a-business/how-to-send-a-networking-dm-on-instagram-that-works/358968.

Authored By: Claire Tomberlin

July 31, 2023

The last thing that an individual expects when getting a text message or a notification on Instagram, Facebook, or other social media platform is to learn that they have been served with legal papers. With the use of social media being at an all-time high, courts have been faced with the question of whether service via social media is an acceptable alternative for in-person service.

Historically, a court must have personal jurisdiction over a defendant and the defendant must be personally served for service to be deemed proper.[1] But what does being personally served mean? Traditionally, an individual is personally served when a copy of the summons and complaint is given to either the individually personally, someone of suitable age at the individual’s dwelling, or to “an agent authorized by appointment or by law to receive service of process.”[2] While this may seem restrictive, the methods that have been permitted by courts to satisfy the personal service requirement have been relaxed and expanded throughout the years.[3]

In 1945, the Court in International Shoe Co. v. Washington established that in-person service of process is not necessary to satisfy the service requirement.[4] The standard was clarified to ask whether the method of service was “reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”[5] This expansion included service of process by mail and by publication in a widely read newspaper.[6] These new forms of service still presented problems though, such as when a defendant is hard to locate or perhaps misdelivery of the mail.[7] Now, with the world evolving and functioning mainly through technology, can these problems be prevented?

Service processers have begun to take advantage of the use of social media and have tried to use it to properly serve notice on individuals. While this may seem valid, some courts have been hesitant to fully accept the way that the world is virtually changing. 4.80 billion people around the world use social media and visit around 6.6 different platforms each month.[8] The average person spends 2 hours and 24 minutes per day on social media which is equivalent to 15 percent of an individual’s waking hours.[9] If the world spends such a significant amount of time on these platforms, it seems that using social media as a form of service would be “reasonably calculated to apprise interested parties of the pendency of the action.”

In 2008, Australia became the first country to allow service of process through social media, allowing service through Facebook after personal service and publication turned out to be unsuccessful.[10] Canada and New Zealand soon followed in Australia’s footsteps, again allowing service through the popular media outlet, Facebook.[11] What court in the United States would be brave enough to take this leap of faith?

In 2011, the Fourth District Family Court of Minnesota became the first court in the United States to allow service of process via social media.[12]  In Mpafe v. Mpafe, the court allowed service to the defendant through e-mail, Facebook, and Myspace.[13] Since, other courts have begun to allow this type of service as well.[14] To determine whether this form of service would be proper, the courts have analyzed if the defendant could be served by conventional means, “if the relief sought was appropriate for service by publication”, and if this form of service would violate the individual’s due process rights.”[15] Most courts have allowed alternative service to include electronic service as long as it is a reliable form of contact, especially when individuals and entities are not required to have a physical address. Despite wanting to eliminate defendants’ avoidance of service, some judges prefer to stick to the old school ways and refuse to get on board with service via social media. Recently in Florida, an attempt to serve Shaquille O’Neal via Twitter and Instagram was deemed to be “factually unsupported and legally insufficient” even after several attempts to serve him at his residences.[16] Is it more reasonable to allow service through an Instagram account or make process servers go to extremes like throwing a stack of papers in front of a speeding car?[17]

While a traditional method of service of process may be preferred, it is not always practical. The question now is whether an adoption for service via social media will bring more problems than it solves. This form solves a lot of problems such as timeliness and use of money. Documents sent by social media or by text message comes across instantaneous, so it would be an efficient means of service of process.[18] It also allows service upon individuals when their physical location is not known, saving money and time trying to track down a hard-to-find defendant. Serving legal papers via social media is also an inexpensive way to complete the process.[19] All of this seems to be seamless and secure, but what route must be taken if it cannot be guaranteed that the individual checks their social media, email, or texts?[20] A guideline giving a time frame of when the individual must have logged into their social media accounts in order to be deemed as reliable could be a reasonable solution.[21]

With the increase of judges allowing service by electronic communication, more guidance about how to effectively use these methods is needed. Currently, with the answer to a request of service via social media depending on if the demand is in front of an old school judge or not further hinders the goal of having a fair judicial system. The courts that are hesitant to transition over into the new electronic world may be less reluctant if a universal standard for analysis of when this alternative method is sufficient is developed. With the extreme use of social media and electronic communication, there will be a high demand for it in the future, and it may become a common way to locate and communicate with individuals.

[1] Pennoyer v. Neff, 95. U.S. 714, 722-27 (1877).

[2] Fed. R. Civ. P. 4(e)(2).

[3] Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

[4] Id.

[5] Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 318-19 (1950).

[6] Id. at 318-19 (establishing that where U.S. was effective, publication in a newspaper was not a sufficient way of service).

[7] See Fed. R. Civ. P. 4(c)(2)(A); Kevin W. Lewis, Comment, E-Service: Ensuring the Integrity of International E-Mail Service of Process, 13 U.L. Rev. 285, 302 (2008).

[8] Kepios, Global Social Media Statistics, Datareportal, https://datareportal.com/social-media-users (last visited July 4, 2023).

[9] Id.

[10] John G. Browning, Served Without Ever Leaving the Computer: Service of Process via Social Media, 73 Tex. B.J. 180, 181 (2010).

[11]  Keely Knapp, Comment, #serviceofprocess@socialmedia: Accepting Social Media for Service of Process in the 21st Century, 74 La. L. Rev. 547, 570-71 (2014).

[12] Mpafe v. Mpafe, No. 27-FA-11-3453 (D. Minn. May 10, 2011), available at https://www.scribd.com/document/70014426/Mpafe-v-Mpafe-order#

[13] Id.

[14] See Baidoo v. Blood-Dzraku, 5. N.Y.S. 3d 709, 712-13 (N.R. Sup. Ct. 2015) (allowing service via Facebook when defendant could not be found); St. Francis of Assist v. Kuwait Financial House, 2016 WL 5725002 (N.D. Cal. Sept. 30, 2016) (permitting service on a foreign defendant via Twitter); Seaboard Marine Ltd., Inc. v. Magnum Freight Corp., 2017 WL 7796153, at *2 (S.D. Fla. Sept. 21, 2017) (allowing service through email when the defendant evaded service); see also David Zaslowsky, Court Authorized Service of Process by Twitter on Crypto-Influencer,  Blockchain (May 8, 2023) https://blockchain.bakermckenzie.com/2023/05/08/court-authorizes-service-of-process-by-twitter-on-crypto-influencer/. (“The court said that e-mail, social media, and posting on a designated website were reasonably calculated to give notice.”)..

[15] K.A. v. J.L., 161 A.3d 154, 158 (N.J. Super. Ct. Ch. Div. 2016).

[16] David Steele, Shaq Couldn’t Be Served Via DM, But Plenty of Others Can, Law360 (May 12, 2023).

[17] Id.; see also Ryan Boysen, In Trying To Dodge Service, Shaq Is Playing A Losing Game, Law360 (May 19, 2023) (“Process servers claim to have finally served O’Neal a few weeks ago by throwing a stack of legal papers at his speeding in car in Georgia.”).

[18] See Jennifer Hord, How SMS Works, How STUFF WORKS, http://computer.howstuffworks.com/e-mail-messaging/sms.htm (last visited Oct. 29, 2012).

[19] See Angela Upchurch, “Hacking” Service of Process: Using Social Media to Provide Constitutionally Sufficient Notice of Process, 38 U. Ark. Little Rock L. Rev. 559, 560 (2016) (“Social media, by contrast, is a free medium, and the user can both receive and send information.”).

[20] See Doe v. Hyassat, 337 F.R.D. 12, 15-16 (S.D. N.Y.  2020) (denying service via Facebook without evidence demonstrating the Facebook account belonged to the defendant or that the defendant regularly used the account).

[21] See Melodie M. Dan, Social Networking Sites: A Reasonably Calculated Method to Effect Service of Process, 1 Case W. Res. J.L. Tech. & Internet 183, 216-18 (2010).

Bear Arms: Bruen and the Future of 18 U.S.C. § 922

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Photo credit: https://www.istockphoto.com/photo/united-states-constitution-and-gun-rights-gm697763612-129248465 (last visited: July 3, 2023).

Authored By: Aliah Hill

August 6th, 2023

The Second Amendment of the United States Constitution states that “the right of the people to keep and bear Arms, shall not be infringed.”[i] The right to bear arms is a fundamental right guaranteed to the people of the United States under the Second Amendment of the Constitution of the United States of America.[ii] Throughout the country, the states have differing levels of firearm regulation ranging from constitutional carry to strict regulations.[iii] The different degrees of firearm regulation throughout the states are due to the different cultural traditions of each state. In recent years, the differing approaches to firearm regulation have spilled over into public discourse in response to the increase in mass shootings.[iv] Despite the differing approaches to firearm regulation, there is a consensus that the right to bear arms is not unlimited despite being fundamental.[v]

There was a tremendous shift in Second Amendment jurisprudence when the Court decided New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). In Bruen, the constitutionality of a New York firearm statute that required a “special need” for obtaining a license to carry a concealed firearm was challenged.[vi] In Bruen, the Court discarded the two-step analysis for firearm regulations that federal courts developed following Heller that considers history and means-end scrutiny.[vii] Under the Bruen standard, the government has the burden of proving that the challenged regulation is aligned with the “Nation’s historical tradition of firearm regulation” when the regulation affects conduct covered under the plain text of the Second Amendment.[viii] The history given the most weight is the history that informs the tradition of gun ownership in the United States in the periods preceding and immediately after the drafting and ratification of the Second Amendment.[ix] The government has the burden of demonstrating that the regulation is rooted in the tradition of the Nation.

Soon after Bruen, district courts across the country began seeing challenges to provisions of 18 U.S.C. Section 922 on the basis that the regulations were not aligned with the historical tradition of firearm regulation at the time of the writing and ratification of the Second Amendment.[x] In response to the notable assassinations in the 1960s, the federal legislature enacted federal firearm regulations.[xi] Under 18 U.S.C. Section 922, the federal government can impose criminal penalties on a broad range of offenses relating to the transportation, purchase, possession, and sale of firearms.[xii] Firearm offenses are the “third most common” type of federal offense behind drugs and immigration.[xiii] In recent years, firearms charges comprise about 14% of federally charged crimes each year.[xiv] In the last two years, there has been an increase in the number of federal firearm offenses.[xv] The average sentence for a federal firearm conviction is about four years.[xvi]

Prior to Bruen, the constitutionality of the federal firearm regulations had been challenged, but those challenges yielded little success.[xvii] In the wake of Bruen, these challenges have had some success. These challenges arise from people appealing their convictions under the statute, people disputing indictments under the statute, and people seeking declaratory judgments by raising as-applied challenges.[xviii] The main targets of these constitutional challenges have been the provisions of Section 922 that codified the Gun Control Act of 1968.[xix] Many of the legal challenges are specifically directed at the subsections of Section 922(g), which identify who is prohibited from possessing or purchasing firearms.[xx]

When some district courts apply their interpretation of the Bruen standard to provisions of Section 922, they strike them down while other district courts uphold the constitutionality of the statute.[xxi] There is a lot of confusion in the courts about adequately applying the Bruen standard since the court now must rely heavily on the Nation’s history when determining whether a firearm statute is constitutional.[xxii] The future of § 922 is precarious. The constitutionality of certain § 922 provisions has already led to circuit splits that the Supreme Court will ultimately have to resolve.

One of the more commonly used provisions—Section 922(g)(1)—has had its constitutionality challenged in district courts across the country in the wake of Bruen. Section 922(g)(1) is the portion of the statute that forbids people with felony convictions from possessing a firearm.[xxiii] In 2021, Section 922(g)(1) violations comprised 13% of federal convictions.[xxiv] In recent years, there were at least 6,000 violations of Section 922(g)(1).[xxv] In Alabama, Section 922(g)(1) cases comprise a high proportion of all federal cases within the state.[xxvi] Over 90% of Section 922(g)(1) convictions result in prison sentences, and the average sentence is five years.[xxvii] If Section 922(g)(1) were to be ruled unconstitutional, the results would dramatically change the landscape of the federal criminal justice system.

There is a circuit split for Section 922(g)(1) on whether the statute complies with the Bruen standard. In United States v. Jackson, 69 F.4th 495 (8th Cir. 2023), the court held that Section 922(g)(1) was constitutional under the Bruen standard. When applying the Bruen standard, the court relied heavily on the firearm restrictions practiced in colonial America, where classes of dangerous people were prohibited from possessing firearms.[xxviii] In Jackson, the court also considered the federal firearm regulations enacted in the 1960s and the purpose of the statute.[xxix] In Range v. Att’y Gen. United States, 69 F.4th 96 (3d Cir. 2023) (en banc), the court held that Section 922(g)(1) was unconstitutional under Bruen.[xxx] In Range, the court relied on the colonial American practice of forfeiting weapons used to commit a crime without interfering with the offender’s right to bear arms.[xxxi] The court in Range also considered that the 1938 federal firearm statute, which the modern firearm statute is based on, only applied to violent criminals.[xxxii] In the seventh circuit, the courts are creating an analysis to evaluate firearm regulations under Bruen.[xxxiii]

The Bruen analysis leaves a lot of room for interpretation by the court. The courts are faced with the issue of evaluating history and determining whether there were analogous firearm regulations in the period preceding the writing and ratification of the Second Amendment. In Jackson and Range, the government presented the same historical arguments but received different results. The question of constitutionality for firearm regulation has turned from legal interpretation to historical analysis. This shift could have negative implications for the future of Section 922(g). The history of analogous firearm restrictions for all classes that covered persons prohibited under Section 922(g) is scant. The courts in the Fifth Circuit have been particularly active in striking down provisions of Section 922(g).

            Like Section 922(g)(1), Section 922(g)(8)’s constitutionality is contested under Bruen. Section 922(g)(8) prohibits people with protection orders related to domestic violence from purchasing or possessing a firearm.[xxxiv] A portion of the Violence Against Women Act (VAWA) clarified that the states had to identify and alert those covered Section 922(g)(8) of the obligation to surrender firearms to the state.[xxxv] In United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), the court held that Section 922(g)(8) was unconstitutional under the Bruen standard.[xxxvi] In Rahimi, the court rejected the government’s historical arguments after deeming their examples not to be “relevantly similar” to Section 922(g)(8).[xxxvii] The court’s holding in Rahimi hinged on the fact that the historical firearm regulations were focused on protecting society at large, not “identified individuals.”[xxxviii]

Section 922(g)(3) prohibits controlled substance users and addicts from possessing or purchasing firearms.[xxxix] Like other provisions of Section 922(g), Section 922(g)(3) has had its constitutionality challenged in the wake of Bruen. In United States v. Connelly, , the court held that Section 922(g)(3) was unconstitutional.[xl] In Connelly, the court rejected the government’s argument that the colonial ban on shooting guns while intoxicated was analogous to Section 922(g)(3).[xli] The court asserted that the intent behind the colonial law and Section 922(g)(3) differed too much since the colonial law was to preserve limited resources to stave off potential threats while Section 922(g)(3) was to keep order in society.[xlii] Without question, Bruen has altered Second Amendment jurisprudence. There is also the potential for Bruen to alter the criminal justice system since many of the statutes used to enforce firearm restrictions are being challenged for lack of basis in historical tradition. After Bruen, criminal defense attorneys started using Bruen motions to get indictments dismissed. While the Bruen motions may not have much success in the present, the Bruen motion serves to preserve the issue so the case may be eligible for reconsideration if the statute is later held unconstitutional. While Bruen is undoubtedly a win for gun rights and Second Amendment originalism, some negative implications are becoming apparent. Some of the protective provisions of Section 922(g) are facing Bruen challenges. Without these provisions, classes of people who are generally considered incapable of possessing and utilizing a firearm in a safe, lawful manner could have legal access to firearms.  Ultimately, the fate of these provisions rests in the courts.

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

[ii] McDonald v. City of Chi., 561 U.S. 742, 778 (2010) (explaining the historical basis for the right to bear arms as a fundamental right); United States v. Heller, 554 U.S. 570, 595 (2008) (holding that there is “an individual right to keep and bear arms” under the Second Amendment).

[iii] See H.R., B. 272, 2022 Leg., Reg. Sess. 2022. (Ala. 2022); see also Cal. Penal Code § 26150.

[iv] Kevin Newsome, et al., A Closer Look at the Rising Epidemic of Mass Shootings in the United States and Its Association with Gun Legislation, Laws, and Sales, 28 Journal of Surgical Research 103, 104 (2022).

[v] See Heller, 554 U.S. at 595 (stating that the right to bear arms is not unlimited).

[vi] See New York State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2123 (2022) (explaining that applicants had to meet a strict standard to get a license to carry).

[vii] See id. at 2127 (explaining that the means-end scrutiny analysis was incorrect).

[viii] Id. at 2126 (2022).

[ix] See id. at 2136.

[x] See United States v. Connelly, 2023 WL 2806324, at *15 (W.D. Tex., Apr. 6, 2023) (holding that §§ 922(d)(3) and 922(g)(3) are unconstitutional since they do not align with the Nation’s historical traditions of firearm regulations); United States v. Price, 2022 WL 6968457, at *6 (S.D.W. Va., Oct. 12, 2022) (holding that § 922(k) is unconstitutional because it is not aligned with the Nation’s historical traditions of firearm regulations)

[xi] See Bureau of Alcohol, Tobacco, Firearms and Explosives, Gun Control Act, ATF (Oct. 21, 2022), https://www.atf.gov/rules-and-regulations/gun-control-act.

[xii] See 18 U.S.C. § 922.

[xiii] U.S. Sent’g Comm’n, Overview of Federal Criminal Cases, Fiscal Year 2021, at 4-5 (2021).

[xiv] See U.S. Sent’g Comm’n, 2022 Annual Report and Sourcebook of Federal Sent’g Stat., at 45 (2022); U.S. Sent’g Comm’n, 2021 Annual Report and Sourcebook of Federal Sent’g Stat., at 45 (2021).

[xv] See U.S. Sent’g Comm’n, 2022 Annual Report and Sourcebook of Federal Sent’g Stat., at 46 (2022) (the number of firearm offenses increased from 8,151 in 2021 to 9,318 in 2022).

[xvi] See id. at 217 (2022).

[xvii] See United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010) (explaining that laws limiting the Second Amendment rights of felons did “not offend the Second Amendment”); United States v. White, 593 F.3d 1199, 1206 (11 th Cir. 2010) (holding that the Heller doctrine of upholding “longstanding prohibition[s]” on firearm possession applied to § 922(g)(9)).  

[xviii] See Range v. Atty. Gen United States, 69 F.4th 96, 99 (3d Cir. 2023) (en banc) (stating that the plaintiff brought an as applied challenge to the statute); United States v. Jackson, 69 F.4th 495, 498-501 (8th Cir. 2023) (stating that the appellee attempted to get the indictment dismissed and appeal his conviction by alleging the statute was unconstitutional).

[xix] See Bureau of Alcohol, Tobacco, Firearms and Explosives, Gun Control Act, ATF,  https://www.atf.gov/rules-and-regulations/gun-control-act (last reviewed Oct. 21, 2022).

[xx] See 18 U.S.C. § 922(g).

[xxi] See United States v. Stambaugh, 2022 WL 16936043 (W.D.Okla., 2022) at *6 (holding that § 922(n) is unconstitutional); United States v. Quiroz, 629 F. Supp. 3d 511, 527 (W.D. Tex. 2022) (holding that § 922(n) is unconstitutional); see also United States v. Bartucci, 2023 WL 2189530 at *10 (E.D.Cal., Feb. 23, 2023) (holding that § 922(n) is constitutional under the Bruen standard).

[xxii] See United States v. Bullock, 2022 WL 16649175 at *1 (S.D.Miss., Oct. 27, 2022) (explaining that courts “lack both the methodological and substantive knowledge that historians possess” and struggle with the Bruen analysis).

[xxiii] See 18 U.S.C. § 922(g)(1).

[xxiv] See U.S. Sent’g Comm’n, 2021, Felon in Possession of a Firearm (2021) (Figures showing 7,454 out of 57,287 were § 922(g)(1) convictions).

[xxv] See id.

[xxvi] See id.

[xxvii] See id.

[xxviii] See United States v. Jackson, 69 F.4th 495, 503-504 (8th Cir. 2023) (explaining that the Nation’s history of firearm regulations included disarming certain classes who pose an “unacceptable risk of danger if armed”).

[xxix] See id. at 505 (explaining that the purpose of the statute aligned with historic traditions).

[xxx] See Range v. Atty. Gen. United States, 69 F.4th 96, 98 (3d Cir. 2023) (en banc) (holding that § 922(g)(1) was unconstitutional).

[xxxi] See id. at 105 (explaining that the colonial laws did not prohibit an offender’s future right to bear arms but only took the weapon used to commit the crime).

[xxxii] See id. at 104 (explaining that the 1938 precursor to § 922(g)(1) was not intended to cover a non-violent offender).

[xxxiii] See Atkinson v. Garland, 70 F.4th 1018, 1024 (2023) (explaining the questions that the district should consider when the case is remanded).

[xxxiv] See 18 U.S.C. § 922(g)(8).

[xxxv] See Congressional Research Service, The Violence Against Women Act (VAWA): Historical Overview, Funding, and Reauthorization, at 27 (2019).

[xxxvi] See United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023) (holding that 922(g)(8) was unconstitutional on its face).

[xxxvii] See id. at 456.

[xxxviii] See id. at 459 (explaining that there was no analogous historical firearm statute to support § 922(g)(8)’s constitutionality).

[xxxix] See 18 U.S.C. § 922(g)(3).

[xl] See United States v. Connelly, 2023 WL 2806324 at *11 (W.D.Tex., Apr. 6, 2023).

[xli] Id. at *6.

[xlii] Id.

The Future is Now: Artificial Intelligence and the American Copyright System

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Photo Credit: https://futureoflife.org/cause-area/artificial-intelligence/ (last visited May 19, 2023).

Authored By: Ben Byard

July 7, 2023

Progress of artificial intelligence (AI) is on the rise and shows no signs of stopping. Recently this technology has exploded in popularity with the likes of ChatGPT and art that is created entirely by AI. These feats can only be achieved after the AI has been properly “trained” to achieve a desired outcome.[i] For many AI models, this training involves taking in many outside images or sources to be able to adequately “learn” what it is trying to do.[ii] This training usually requires thousands or tens of thousands of outside materials to be given to the AI for it to function correctly.[iii] Since most people or companies do not own the requisite amount of images or data themselves, they must use images or data from outside sources.[iv] Checking for copyrights and protections on all of these images would be both extremely time-consuming and expensive, so nearly all AI companies have used copyrighted images to train their AIs without worrying about the potential consequences. This has led to new developments in copyright litigation, where it is unclear whether using copyrighted images to train AI would violate the copyright.

            A very recent case that is currently undecided will provide some of the first laws directly relating to this topic.[v] Getty Images brought a complaint against Stability AI for infringing on their copyright in twelve million images that were used to train Stability’s AI.[vi] While it will take some time for this case to finish, previous case law can still provide some guidance on whether AI would infringe on other’s copyrights. While Stability AI has only responded on jurisdictional grounds to Getty Images, if these arguments fail it is most likely they will make an argument for the fair use of the copyright.[vii] The US Copyright Act allows the use of copyrighted material through the fair use doctrine.[viii] This allows a copyrighted material to be used or reproduced without punishment if the copyrighted work is used “for purposes such as criticism, comment, news reporting, teaching (including multiples copies for classroom use), scholarship, or research. . . .”[ix] Campbell v. Acuff-Rose Music, Inc. also clarifies that the more transformative a work is, the less the other factors against fair use will weigh.[x] This case states that transformative works take the original and add some new value or meaning to it, giving parodies as an example of transformative work.[xi]

This would be the most likely argument for the works produced by AI not to infringe on copyright. AI generators take in thousands upon thousands of images and use those to create a new image based on what the AI has “learned.” Since a single image cannot be used to train an AI completely, it would be hard to argue that an entirely new image created from thousands of photos was not “transformed” enough from the original photo not to be considered transformative for fair use. However, a different problem arises when most or all of the images used for training the AI come from a single source. This is one of Getty’s main complaints, as they claim that Stability used millions of Getty Image photographs while also removing the captions and metadata from those images.[xii] If Stability only used Getty Images material to train their AI, then none of the produced work may be considered transformative enough for fair use. Stability potentially using the AI produced images commercially also may weigh against them in consideration of fair use.[xiii]

Four factors are given when determining whether a copyrighted work falls under fair use. These are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used concerning the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[xiv]

These four factors are the most heavily weighed by courts in copyright infringement decisions, so most arguments should focus on these points. There are potential arguments to be made on both sides, an example being that the work created by AI is transformative, as described earlier. Other arguments that could be made are how much of the work created by AI is currently nonprofit and is for research purposes. AI is still in its infancy, meaning many of the images made by companies using AI have no intention of commercializing these images. While this will most likely change in the future, this current fact favors heavily for fair use. An argument against fair use is that the AI-generated image could potentially not exist without using the copyrighted images. Earlier, it was stated that it would be difficult to argue that a singular image significantly affects what the AI produces. Depending on the sample size used to train the AI, a particular copyrighted image could be highly important to making the AI work properly, meaning this image would be used “substantially” to create the AI-generated image. Furthermore, if AI can take copyrighted images and create very similar facsimiles under the protection of fair use, then this would undoubtedly affect the market for the original copyrighted images, weighing against fair use.

            Another issue to consider is whether the AIs themselves can own a copyright in their work. Currently, only “human authors” can hold a copyright in a product that they themselves produce or inherit.[xv] This was decided in 2018 by the 9th Circuit when there was controversy over whether a photograph that a monkey technically took could own a copyright in that photograph.[xvi] This happened when a wildlife photographer named David Slater left his camera near a reserve of wild monkeys with a mechanism for photos to be automatically taken when a button is pressed.[xvii] A monkey named Naruto pressed the button while smiling at the camera, technically making him the “author” of the photographs.[xviii] The 9th Circuit held that since all the terms used to describe an author or inheritor of a copyright “imply humanity,” animals do not fit in any of these categories and cannot own a copyright.[xix]

            Currently, there have been no other cases or statutes directly addressing this issue, leaving Naruto v. Slater as the sole authority on non-human entities and copyright ownership. This implies that AIs would be in the same category as animals as non-human entities, meaning they cannot own or hold a copyright in something. However, the court in Naruto states explicitly that it is “animals other than humans” that cannot own a copyright or sue under the Copyright Act.[xx] AI is not an animal, meaning it does not fall under this exact definition and is still in a bit of a nebulous area in terms of copyright ownership. This makes sense, as humans did not create animals, and there is, therefore, some “separation” between what an animal creates and what a human creates. The difference with AI is that humans originally made AI, and AI then, in turn, made something else based on the information humans gave it. Is this amount of separation enough to consider an AI image an “independent creation” underserving of copyright protections provided to human creators? Is copyrightable material created by an AI any different than copyrightable material made through other technologies, such as image editing software? For example, people can copyright photos they make through Photoshop, simply editing some original image with tools provided by the program to make a new or transformed image. AI is merely a program created by humans that takes thousands of images instead of a single image to create a new or transformed image. Is the fact that a program produces the image “independently” different than a human simply using a program to modify an image themselves? Or can an AI be considered independent enough to be a separate distinction from a human program? This is a much deeper issue that goes beyond the scope of copyright but is an important question that will almost certainly have many cases pertaining to it in the future.

[i] Jonathan Tarud, AI Model: How Does It Work?, Koombea (March 23, 2023), https://www.koombea.com/blog/ai-model/.

[ii] Id.

[iii] Eugene Dorfman, How Much Data is Required for Machine Learning?, postindustria (March 25, 2022), https://postindustria.com/how-much-data-is-required-for-machine-learning/.

[iv] Id.

[v] Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. May 16, 2023).

[vi] Complaint at 1, Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. Feb. 2, 2023).

[vii] Defendant’s Motion to Dismiss or Transfer this Action, Getty Images (US), Inc. v. Stability AI, Inc., No. 23-CV-00135, (D. Del. Feb. 2, 2023).

[viii] 17 U.S.C. § 107.

[ix] Id.

[x] 510 U.S. 569, 579 (1994).

[xi] Id.

[xii] Getty Images (US), Inc., supra note 6 at 1.

[xiii] 17 U.S.C. § 107.

[xiv] Id.

[xv] Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).

[xvi] Id. at 420.

[xvii] Id.

[xviii] Id.at 424.

[xix] Id. at 426.

[xx] Id.

Convenient Justice: An Overview of the ‘Interest of Justice’ Prong of Alabama’s Forum non Conveniens Statute

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Photo Credit: Swift, Currie, McGee & Heirs, LLP, Alabama Venue Map (2018), https://www.swiftcurrie.com/assets/htmldocuments/al_venue_map.pdf.

Authored By: Porter Simpler

June 26, 2023

Across Alabama’s 67 counties, courts treat damages and the plaintiff’s rights to recover those damages differently. Although Alabama is a pure contributory negligence state where contributory negligence on the part of the plaintiff is a total bar to recovery for personal injury damages, in some ways, and although not intentionally, courts have accounted for this by implementing a patchwork idea of how large recovery amounts should be, where the amounts can differ drastically between two forums that may be less than a 20-minute drive from one another. Aside from affecting the parties to the lawsuit, it can also affect their counsel, specifically as it relates to counsel with terms that call for a contingency fee provided by the amount of damages recovered. The result is often that defendants will move to transfer the matter to a forum more favorable to their case, rather than the forum where the plaintiffs filed the action, perhaps for similar reasons. There are several ways in which courts may point out flaws in a defendant’s motion to transfer for forum non conveniens,[1] and these avenues live and die by the evidence that defendants present when moving the court to allow a transfer. Although this guide is not exhaustive, it can provide a good look at what weaknesses typically plague defendants who are unsuccessful in their attempts to transfer to a different forum based on forum non conveniens where they contend that the interest of justice requires such a transfer.

Although the Alabama Code allows for the transfer of actions in any venue where the action could have been filed,[2] courts give great deference to the plaintiff’s chosen forum.[3] In any event, upon enactment of the relevant section, the legislature sought to not only allow such a transfer, but if the moving party satisfactorily demonstrated that a transfer was proper in the interest of justice, the transfer was compulsory; the court was required to grant the motion.[4] Contrary to what many defendants contend in their motions to transfer under this section, the court’s decision on the matter is not a simple balancing test. The burden is on the defendant to demonstrate, after a highly intensive factual analysis, that the interest of justice trumps litigating the case in the plaintiff’s chosen forum.[5]

Many defendants’ motions to transfer for forum non conveniens rely on the location of the act or omission giving rise to the claim as the end-all-be-all when it comes to getting their motion granted.[6] This is misguided. The Alabama Supreme Court has made it clear that “[a]lthough [they] assign ‘considerable weight’ to the location where the accident occurred, it is not, and should not be, the sole consideration for determining venue under the ‘interest of justice’ prong of § 6-3-21.1.”[7] The court wants to see material connections to the defendant’s requested forum, and the tort alone is insufficient to demonstrate such.[8] But demonstrating a material (i.e., strong) connection to the transferee forum is not all that defendants must do to succeed under the interest of justice prong of the forum non conveniens statute. They must also present evidence of a weak nexus between the plaintiff’s chosen forum and the case at hand.[9] The court will consider the evidence of a strong connection to the requested forum and the weak connection to the plaintiff’s forum together before deciding whether a transfer is proper.[10]

A defendant may prove a weak nexus between the plaintiff’s chosen forum and the case in a few ways. They may present affidavits from the parties stating that they live in the transferee forum, evidence indicating that travel to the plaintiff’s chosen forum would be a significant burden on the parties or witnesses, or they may prove that the evidence associated with the tort is such that the transferee forum would be far more convenient.[11] Courts have also allowed defendants certain inferential liberties when presenting their evidence of a weak connection. In Ex parte Indiana Mills & Mfg. Co.,the moving defendants supported their assertion that the plaintiff’s chosen forum had a weak connection to the case at hand with demonstrable proof that all relevant evidence in the case had a strong connection only with the defendant’s requested forum rather than the plaintiff’s chosen forum.[12] Although the defendants did not affirmatively prove the required “weak nexus,” the evidence they presented regarding the transferee county was sufficient for the court to conclude that there could be no more relevant evidence obtained from a county other than the transferee county the defendants requested.[13]

Where a defendant cites the imposition of jury duty on citizens of a county other than where the tort occurred as against public policy, courts look for certain facts before ruling. Courts accept the principle that “[j]ury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation.”[14] But, this is not apparent on its face merely by demonstrating that the tort occurred in a county other than where the plaintiffs now seek to litigate the matter.[15] Where the act occurred somewhere other than the plaintiff’s chosen forum, the court wants to see that the litigation “[touches] the affairs of many persons” in a county other than the plaintiff’s chosen venue, rather than just say, the parties to a two-car collision.[16] Proving that the tort will affect only a limited number of citizens of a county other than where the tort occurred is paramount in rebutting a defendant’s motion to transfer when they contend that citizens of the plaintiff’s chosen forum are too distant to necessitate being compelled to serve on a jury.

Alabama’s forum non conveniens statute should not be mistaken for one that does not require a factual analysis of all the relevant factors to the case at hand. By presenting the right evidence regarding the case’s connection to each forum and how the subsequent decision will affect citizens of each respective county, a plaintiff can survive a motion to transfer under forum non conveniens and can litigate their case in the forum of their choosing.

[1] This discussion will be of Alabama’s forum non-conveniens statute as it relates to intrastate transfer under Ala. Code § 6-3-21.1 (1975). The code section for interstate transfer under the same doctrine is Ala. Code § 6-5-430 (1975), and Alabama courts permit the same arguments between the two statutes as it relates to what must be presented as evidence to succeed on the motion. See Ex parte Transp. Leasing Co., 138 So. 3d 722, 729 (Ala. 2013) (permitting reciprocity between the application of Ala. Code § 6-3-21.1 (1975) and Ala. Code § 6-5-430 (1975)).

[2] Ala. Code § 6-3-21.1 (1975).

[3] Ex parte Townsend, 589 So. 2d 711, 715 (Ala. 1991).

[4] Id. (“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”) (emphasis added).

[5] Ex parte J&W Enters., LLC, 150 So. 3d 190 (Ala. 2014).

[6] Compare Ex parte Wachovia Bank, N.A., 77 So. 3d 570 (Ala. 2011) with Ex parte Burgess, 298 So. 3d 1080 (Ala. 2020).

[7] Ex parte Burgess, 298 So. 3d 1080, 1083 (Ala. 2020) (internal citations omitted).

[8] Id.

[9] Ex parte Verbena United Methodist Church, 953 So. 2d 395, 400 (Ala. 2006); See Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 546 (Ala. 2008).

[10] Indiana Mills, 10 So. 3d at 541.

[11] Ex parte Tyson Chicken, Inc., 291 So. 3d 477, 481 (Ala. 2019).

[12] Indiana Mills, 10 So. 3d at 541.

[13] Id.

[14] Ex parte Smiths Water & Sewer Auth., 982 So. 2d 484 (Ala. 2007).

[15] Id.

[16] Id.

American Dream or American Nightmare: The Expiration of Title 42 & What It Means For Asylum Seekers

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Photo Credit: https://www.aljazeera.com/gallery/2023/5/14/title-42-ends-asylum-rules-change-at-tijuana-san-diego-border

Authored By: Ohtra Awad

May 17, 2023

For many years, the United States has acted as a symbol of new beginnings. A place where anyone can become someone, build a legacy, or live in peace away from the terrors or ruins of their home country. Coined as the American dream, the U.S. has acted as a place of refuge since its founding. The first newcomers to the Americas were those seeking religious freedom, attempting to escape British rule. These American pioneers formed the first colonies with the promise of treating everyone equally and laying the framework for what would eventually become fundamental freedoms for all.

With the expiration of Title 42, the question of whether the American dream still exists begs attention. The Trump Administration introduced the enactment of Title 42 to deter the spread of Covid-19.[i] Title 42 granted the director of the Centers for Disease Control and Prevention (CDC) the ability to block noncitizens from entering the U.S. for public health purposes.[ii] From its enactment in 2020, Title 42 was used more than 2.8 million times to immediately expel migrants to their home country without allowing them to seek asylum.[iii]

Although in place for over three years, Title 42 did not go unchallenged. As seen in Huisha-Huisha v. Mayorkas, a class of noncitizens involving a group of asylum-seeking families brought an action against the Secretary of Homeland Security, alleging violations of several acts, including the Administrative Procedure Act (APA) and the Public Health Service Act which arose from the Title 42 policy that “prohibited introduction into [the] United States of certain noncitizens to prevent [the] spread of Covid-19.”[iv] Here, the court strayed away from the Title 42 policy and decided that memos issued by the CDC introducing certain persons into the U.S. would be suspended.[v] Furthermore, the court decided Title 42 to be “arbitrary and capricious,” which prevented Defendants from applying the Title 42 policy to plaintiff class members.[vi]

As Title 42 expired Thursday, May 11, 2023, the U.S. braces itself for a new era of immigration policies. Set forth by the Biden Administration, the new set of guidelines calls for a harsher crackdown on illegal immigration while providing a new legal pathway for migrants to cross the border more efficiently.[vii] The expiration is anticipated to cause a surge of immigration at the border between Texas and Mexico, roughly 10,000 migrants a day are expected to be crossing the southern border.[viii]

However, the day prior to the expiration of Title 42, President Biden acknowledged that a new rule would be introduced. The administration introduced a new law that has the potential to limit asylum dramatically.[ix] Due to the expiration of Title 42, those that do not use available lawful pathways to enter the United States will face more significant repercussions. Those who arrive at the border without using lawful avenues will be presumed ineligible for asylum, whereas under Title 42, immigration officials were able to quickly turn away migrants at the southern border.[x]

The expiration of Title 42 means that the Biden administration will revert to Title 8 when deciding whether migrants have a lawful reason to seek asylum in the United States.[xi]  Title 8 legislation has been active throughout the usage of Title 42; however, moving forward migrants will now only be subjected to regulations under Title 8. The most significant difference between the two pieces of legislation is that Title 8 typically allows more time for migrants to submit asylum claims than they were granted under Title 42. [xii]

Even though Title 8 will be restored with the expiration of Title 42, many urge Congress to introduce new legislation to supplement Title 8.[xiii] Title 8’s deportation consequences, along with the limited legal pathways to parole some migrants into the U.S. from abroad, has been scrutinized by Biden’s Homeland Security Secretary Alejandro Mayorkas.[xiv] Mayorkas claims that the state of the U.S. immigration lacks vital resources such as personnel, facilities, and transportation.[xv] Mayorkas has anticipated the surge in immigration for approximately two years, which led him to release the DHS Plan for Southwest Border Security and Preparedness in April 2022, which outlined a six-pillar plan to manage an increase in immigration once Title 42 expired.[xvi] The plan was later updated in preparation for Title 42’s expiration.

In addition, the Department of Justice and Homeland Security released a rule on May 10, 2023, implementing an asylum “transit ban” rule.[xvii] The transit ban penalizes those that have entered the U.S. irregularly to fail to apply for protection in other nations they cross through on their way to the U.S.[xviii] In essence, the transit ban would apply to all non-Mexican migrants, except non-accompanied minors, who had not been pre-approved under one of Biden’s parole programs.[xix]  The transit ban is said to be questionable by onlookers as it could endanger the lives of many thousands of people seeking asylum. Moreover, the transit ban will affect people who, even though on U.S. soil, “will be denied the legal right to seek protection”, which could potentially be in violation of U.S. asylum law.[xx] This could have a potential impact on the way this matter is litigated, and which protections are afforded to asylum seekers under the U.S. Constitution.

A similar ban was introduced by the Trump Administration in 2020. Still, it was quickly struck down in Al Otro Lado v. Wolf.[xxi] The transit ban under Trump’s presidency sought to expel thousands of asylum seekers from accessing the U.S. asylum process. The legality of the transit ban, which was applied to asylum seekers who were turned back at the U.S.-Mexico border, was challenged by various legal services organizations.

The question now is whether or not the new transit ban under Biden’s Administration will be struck down as seen during Trump’s Administration. Only time will tell, but for now, we are left with the daunting question of whether this will be an American dream or an American nightmare for those seeking asylum in the U.S.

[i] Title 42 Explained: What is it, why is it ending, what’s next?, The Hill (May 11, 2023), https://thehill.com/homenews/administration/4000948-title-42-explained-what-is-it-why-is-it-ending-whats-next/.

[ii] Id.

[iii] Id.

[iv] Huisha-Huisha v. Mayorkas, No. 21-100 (EGS), 2022 WL 16948610, *1 (D.D.C. Nov. 15, 2022).

[v] Id. at *16.

[vi] Id.

[vii] Migrants Face New Border Reality as Title 42 Pandemic Restrictions Expire, PBS News Hour (May 12, 2023), https://www.pbs.org/newshour/politics/migrants-face-new-border-reality-as-title-42-pandemic-restrictions-expire.

[viii] Title 42 Explained: What is it, why is it ending, what’s next?, The Hill (May 11, 2023), https://thehill.com/homenews/administration/4000948-title-42-explained-what-is-it-why-is-it-ending-whats-next/.

[ix] Id.

[x] Title 42 Immigration Policy Has Expired as Border Officials Prepare for a Possible Influx, NBC News (May 12, 2023), https://www.nbcnews.com/news/latino/live-blog/live-updates-title-42-immigration-policy-set-expire-midnight-rcna83908.

[xi] Id.

[xii] What is Title 8 Immigration Law? And What Happens When Title 42 Ends?, ABC Eyewitness News (May 11, 2023),  https://abc7chicago.com/title-8-immigration-law-42-explained-vs/13234991/#:~:text=Title%208%2C%20which%20includes%20decades,were%20afforded%20under%20Title%2042.

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] DHS and DOJ Finalize Rule to Incentive Use of Lawful Immigration Pathways, Homeland Security (May 10, 2023),  https://www.dhs.gov/news/2023/05/10/dhs-and-doj-finalize-rule-incentivize-use-lawful-immigration-pathways.

[xvii] Weekly U.S.-Mexico Border Update: Title 42 Ends, WOLA (May 12, 2023),  https://www.wola.org/2023/05/weekly-u-s-mexico-border-update-title-42-ends/.

[xviii] Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban, American Immigration Council (February 21, 2023), https://www.americanimmigrationcouncil.org/news/department-justice-and-department-homeland-security-release-details-dangerous-new- asylum#:~:text=As%20described%20in%20the%20NPRM,in%20another%20country%20before%20arrival.

[xix] Id.  

[xx] Weekly U.S.-Mexico Border Update: Title 42 Ends, WOLA (May 12, 2023),  https://www.wola.org/2023/05/weekly-u-s-mexico-border-update-title-42-ends/.

[xxi] Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban, American Immigration Council (Feb. 21, 2023), https://www.americanimmigrationcouncil.org/news/department-justice-and-department-homeland-security-release-details-dangerous-new- asylum#:~:text=As%20described%20in%20the%20NPRM,in%20another%20country%20before%20arrival.

Partisan Gerrymandering Out or In: An Independent State Legislature 

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Photo Credit: https://www.cnn.com/interactive/2022/politics/us-redistricting/north-carolina-redistricting-map/

Authored By: John M. Dickinson 

Senior Associate Editor, American Journal of Trial Advocacy

          Racism, politics, reproductive rights, riots, police brutality, and protests have plagued our newsreels for years. It seemed to get worse in 2020 when the whole world paused for what seemed like an eternity. People taking to the streets in protest. An election. A Pandemic. As we come off the tumultuous wave of covid restrictions, and just pandemic life, we strive and seek normalcy. But what is normal anymore? The world cannot go through a global pandemic as large and far-reaching as covid and not feel the effects. 2020 marked a hard year for many, and while we are still feeling those effects, the residents of North Carolina feel them differently. 

            You see, every ten years the United States government conducts a census.[1] The most recent of which took place during that crazy year of 2020.[2] The census plays a vital role in our government structure, as it not only accounts for people’s demographic, birth rates, death rates and other statistical data, it is determinative in congressional redistricting efforts and is instrumental in “determin[ing] the distribution of U.S. House seats across states.”[3] In an action relegated to the state courts of North Carolina under[4], voters challenged the republican led legislature’s attempt to pass a partisan gerrymandering case.[5] These voters, upset with the map as drawn, saw the actions of their republican legislature to be a violation of the North Carolina State Constitution’s free election clause.[6] The Supreme Court of North Carolina said what many were thinking, that the redistricting plans were “egregious and intentional partisan gerrymanders” enacted with the sole purpose of giving Republican voters “a greater voice . . . than to any others.”[7]

            The legislature ultimately filed an emergency appeal that was denied, but the Supreme Court of the United States has agreed to hear the case, and has just heard oral arguments.[8]  During the oral arguments, the parties argued over whether there is any truth to or viability of the so-called Independent State Legislature theory.[9] This theory, which has gained traction over the last few years, would allow state legislatures more control over their electoral maps, and to the greatest degree allow for voter suppression laws to resurface.[10] It is commonly understood and accepted that the United States Constitution delegates the power to administer federal elections to the states,[11] but there is debate as to “how much power is delegated and to which state actors exactly.”[12] Proponents of the theory argue that the states have been given “exclusive and near-absolute power to regulate federal elections.”[13]

While the supreme court has yet to adopt the position held by the proponents of the independent state legislature theory, it is a terrifying thought that it may one day be incorporated into the law. Our system has already disenfranchised so many people. Many believe that their vote will not matter in the outcomes of elections, and many have lost their right to vote. Should this theory be adopted, then those who already felt voiceless will be rendered so. In a time when people’s reproductive rights have been largely left unprotected, when people face the injustice of police brutality, and when so many have already lost their right to vote, the thought of one party seizing control is utterly terrifying. 

2020 was a tough year for many; loved ones were lost and jobs were lost. It resulted in an inflated struggling economy. But it seems that those who weathered that storm must do so again. Clear skies may be ahead, but so far the 2020s have been challenging in so many ways, and likely in ways that have yet to be realized.  

[1] Decennial Census, United States Census Bureau (Aug. 4, 2022), https://www.census.gov/programs-surveys/censuses.html#:~:text=It%20is%20mandated%20by%20Article,federal%20funds%20to%20local%20communities.

[2]2020 Census, United States Census Bureau (Nov. 29, 2022), https://www.census.gov/programs-surveys/decennial-census/decade/2020/2020-census-main.html.

[3]Apportionment and Redistricting Following the 2020 Census, Congressional Research Service (Sep. 29, 2021) https://crsreports.congress.gov/product/pdf/IN/IN11360#:~:text=The%20census%2C%20apportionment%2C%20and%20congressional,as%20apportionment%20(or%20reapportionment).

[4] See Rucho v. Common Cause, 139 S. Ct. 2484, 2500 (2019) (“Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal court”). 

[5] Harper v. Hall, 380 N.C. 317, 868 S.E.2d 499, 508 (2022); Moore v. Harper, 142 S. Ct. 1089 (2022). 

[6] N.C. Const. Art. I, § 10; Harper, 868 S.E.2d at 509 (2022) (“[a]ll elections shall be free” means that every vote must count equally. N.C. Const. art. I, § 10”).

[7] Harper, 868 S.E.2d at 510 (2022). 

[8]Transcript of oral Arguments at 70, Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21-1271). 

[9] Transcript of oral Arguments at 70, Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21-1271).

[10] Ethan Herenstein, The ‘Independent State Legislature Theory,’ Explained, Brennan Center for Justice https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained, (June 30, 2022).

[11] US Const. Art. I, § 4, Cl 1.

[12] Ethan Herenstein, The ‘Independent State Legislature Theory,’ Explained, Brennan Center for Justice https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained, (June 30, 2022). 

[13] Id. 

Do Website Testers have Standing to Sue Under the Americans with Disabilities Act?

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Photo Credit: https://www.ncsl.org/research/labor-and-employment/americans-with-disabilities-act-celebrating-30-years.aspx

Authored by: W. Webster Brown

Senior Associate Editor, American Journal of Trial Advocacy

            Americans with Disabilities Act (ADA) is a civil rights law signed by President George H.W. Bush on July 26, 1990.[i] Title III of the ADA designates certain businesses as “public accommodations.” This designation requires that these businesses must eliminate barriers that impede access to their goods and services by persons with disabilities.[ii]Public accommodations such as hotels must ensure that guests who are blind, deaf-blind, or visually impaired have an equal opportunity to participate in and benefit from all of the goods and services provided by that hotel. Hotels can provide “Access” to disabled customers by a variety of means, including making reasonable modifications in policies and procedures to accommodate individuals with disabilities, removing architectural or structural communication barriers (such as conventional signage which cannot be read by persons who are blind or visually impaired and replacing them with signs that have braille) where it is readily achievable to do so, or providing auxiliary aids or services (such as reading a hotel bill to a guest who is blind) if it is not an undue burden and does not fundamentally alter the nature of the goods and services offered.[iii] Additionally, hotels are required to identify accessible features of their properties on their website and online reservation system.[iv] This includes a description of the hotel and hotel room physically accessible features on the hotel’s website.[v]

            A recent case in the First Circuit discussed the issue of whether “website testers” who have no intention of staying at the hotel would nonetheless have standing to bring suit against the hotel for violating the ADA requirement of making information about the hotel’s accessibility available on any reservation portal to those with disabilities.[vi] In Laufer, Deborah Laufer, a disabled woman, brough suit against Acheson Hotels, LLC, who owns and operates the Coast Village Inn and Cottages in a small town on Maine’s southern coast.[vii] Laufer is a self-proclaimed ADA “tester” and advocate for disabled persons and has filed hundreds of other ADA-related suits in federal courts from coast to coast.[viii] Laufer alleges that when she first visited Acheson’s website to make a reservation at the Coat Village Inn, she found that it didn’t identify accessible rooms, didn’t provide an option for booking an accessible room, and didn’t give her sufficient information to determine whether the rooms and features of the Inn were accessible to her.[ix] Additionally, Laufer says she faced the same lack of information when she visited the Inn’s reservation service through thirteen other third-party websites, including Expedia.com, Hotels.com, and Booking.com.[x] However, Acheson argues that Laufer had no real intention of booking a room at its Inn, and therefore, Laufer lacks Article III standing to bring her suit, and the court accordingly lacks subject-matter jurisdiction over the case.[xi]

            In order to have “standing,” the plaintiff must suffer an injury under the law. The First Circuit noted that it is crucial to understand that refusing information to someone who has a legal right to that information can be considered an injury under the law.[xii] The First Circuit also emphasized that it is the legal right to the information that matters, not what the user intends to do with the information.[xiii] Additionally, the court pointed to The Department of Justice’s “Reservation Rule,” which ensures that people with disabilities can “independently decide whether a hotel or guest room meets his or her accessibility needs.” This rule also says that accessibility information is needed to make sure people with disabilities can reserve hotel rooms in the same way as people who do not need accessible guest rooms.[xiv] The Court said Ms. Laufer’s “injury” was her feelings of frustration, humiliation, and being treated as a second-class citizen. She suffered because of the lack of accessibility information on Acheson’s website.[xv]

            The First Circuit believed that the lack of information on room accessibility on the hotel’s reservation website doesdiscriminate against a person with a disability. The Court believed it was Ms. Laufer’s legal right to have accessibility information to know what accommodations were available at Acheson’s hotel. Therefore, Deborah Laufer had “standing” to bring an action against Acheson.

            This decision is also worth noting because it furthers the split amongst circuit courts on whether website testers like Laufer have standing to bring ADA suits. The First Circuit’s decision joins the Eleventh Circuit[xvi] in saying that a website testers, who has no immediate plans to use a business, has standing to sue for a site’s alleged violations of the Americans with Disabilities Act. However, the Second Circuit[xvii], Fifth Circuit[xviii], and Tenth Circuit[xix] have all ruled that these website testers do not have standing to allege violations of the Americans with Disabilities Act.

[i]  ADA@30: The Americans with Disabilities Act 1990-2020, https://www.eeoc.gov/ada30-americans-disabilities-act-1990-2020#:~:text=Signed%20into%20law%20in%201990,across%20community%20life%2C%20including%20employment. (last visited Dec. 9, 2022).

[ii] Id. 

[iii] Id.

[iv] ADA Requires Hotels To Describe Accessibility Features On Website, https://ada.jmbm.com/ada-requires-hotels-to-describe-accessibility-features-on-website/. (last visited Dec. 9, 2022). 

[v] Id.

[vi] See Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022).

[vii] Id. at 263.

[viii] Id. at 265.

[ix] Id. at 263-64.

[x] Id. at 264.

[xi] Id. at 265.

[xii] Id. at 270.

[xiii] Id. at 270. 

[xiv] Id. at 265. 

[xv] Id. at 274-75.

[xvi] See Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022)

[xvii] See Harty v. W. Point Realty, Inc., 28 F.4th 435 (2d Cir. 2022).

[xviii] See Laufer v. Mann Hosp., LLC., 996 F.3d 269 (5th Cir. 2021).

[xix] See Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022).

A Safe Sport? A Dive Into the Culture of Abuse at USA Swimming 

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Photo Credit: https://www.usaswimming.org/news/2021/12/10/new-categories-of-individuals-required-to-be-non-athlete-members

Authored by: Mary Beth Duckett

Senior Associate Editor, American Journal of Trial Advocacy

          For decades, young swimmers’ lives have been ruined by coaches’ use of sexual abuse, yet USA Swimming was reluctant to stop these horrific events from occurring.[1]  In the 80s, two-time Olympian, Mitchel Ivy; youth coach, Andrew King; and former national team director, Everett Uchiyama assaulted several minor women.[2]  The coaches engaged in disgusting behavior throughout their years of coaching the victims.  Ivy impregnated one of his swimmers at age seventeen, causing her to have an abortion before the 1984 Olympic Trials.[3]  Uchiyama started abusing one of the victims in the 90s, and this victim believes other coaches knew what was happening, but did nothing to stop it.[4]  Furthermore, King’s victim stated the abuse started when she was eleven years old, and could have easily been prevented.[5]  The women eventually filed suit, alleging that USA Swimming officials were aware of the abuse of these coaches, but failed to address the problem or take any action to protect the women.[6]  Although all three coaches have received lifetime bans from coaching, Ivy and Uchiyama never faced criminal charges.[7]  King, on the other hand, was “sentenced to 40 years in prison after pleading no contest to 20 child molestation charges.”[8]

            Swimming coaches Ivy, King, and Uchiyama are not the only ones who got away with sexual abuse for so long.  Scott McFarland, a California swim coach, also engaged in predatory behaviors, causing Sarah Ehekircher a lifetime of suffering.[9]  As a junior in high school, Ehekircher was left with no family, and started living with her coach, McFarland.[10]  McFarland first started emotionally abusing Ehekircher by weighing her before she ate, and forcing her to ride a stationary bike for two hours after her grueling swim practices.[11]  Not long after the emotional abuse began, McFarland raped Ehekircher at a swim meet.[12]  The physical abuse then started to spiral, and Ehekircher eventually had two abortions.[13]  She explained that the reason she took so long to report McFarland was because she was scared and had no one else to support her.[14]  These types of sexual abuse cases occur at the amateur level all the way up to the Olympic level.  For example, Philip Mark Walker, former head coach of Excel Aquatics out of Nashville, TN, was suspended from USA Swimming for sexually abusing two minors.[15]  Further, Ariana Kukors, a former U.S. Olympian, publicly stated “that her longtime coach Sean Hutchison sexually abused her for nearly a decade.”[16]

            These heartbreaking stories beg the questions of why USA Swimming stood idly by and did nothing, and how did the organization get away with this?  First, the organization had largely a financial focus.[17]  To emphasis, the head of USA Swimming, Chuck Wieglus, denied in a 2010 deposition “that protecting the safety of young swimmers . . . against sexual abuse was USA Swimming’s top goal.”[18]  Additionally, USA Swimming prioritized protecting its brand and sponsorships, so the organization dealt with the sexual abuse allegations through public relations firms and lobbying groups instead of facing them head on.[19]  Because the organization was only concerned about its legal liability, it did not take any action to legitimately prohibit the culture of abuse in swimming.[20]  Furthermore, the American Swimming Coaches Association, an affiliate of USA Swimming, has not helped develop new policies on sexual misconduct because it consistently opposed these reform efforts.[21]  Another reason abuse has continued within the sport is because it can often take years to obtain a lifetime ban from the sport.[22]  In one case, a Massachusetts swim coach was arrested for rape and child abuse, but was not banned from coaching until twelve years after the conviction.[23]

            Although the sport of swimming has silently endured a culture of sexual abuse over the last several decades, in 2018 the USA Gymnastics scandals prompted the federal grand jury investigation of USA Swimming.[24]  One focus of the investigation was the organization’s “insurance structure known as the ‘wasting’ provision.”[25]  The “wasting” provision occurred because although the U.S. Olympic Committee required USA Swimming to include specific abuse coverage, “[t]hat coverage did not extend to the 2,000 member clubs across the country.”[26]  Those excluded club teams were instead given an underwritten coverage for abuse claims capped at $100,000 per claim.[27]  The wasting clause was essentially a deductible.[28]  Because every dollar spent defending a claim was reduced from the coverage, some victim-claimants subject to the wasting clause would not collect any damages, and their club team would be left with no money to defend itself.[29]  Therefore, this insurance coverage restricted these club teams to only two claims per year.[30]  In turn, this system protected USA Swimming as an organization, because it was the coaches themselves that were held liable and likely forced into bankruptcy as a result.[31]  Recently, however, survivors have overcome this system and successfully sought relief by piercing USA Swimming’s financial veil to reach its general liability coverage.[32]

            Furthermore, after the USA Gymnastics scandal made national headlines in 2018, President Donald Trump signed a bill into law “that aims to protect amateur athletes from sexual abuse by regulating the governing bodies of amateur athletics, like USA Swimming.”[33]  The bill requires officials and coaches to report signs of abuse to authorities within 24-hours, but it “extends the statute of limitations to up to 10 years after a person realizes they were abused.”[34]   It also protects athletes who are minors by prohibiting them from being alone with someone who is not their parent.[35]

 It is evident that change has occurred within the past five years, as more survivors have stood up to claim that abuse is not a necessary part of swimming, a sport that teaches children and young adults discipline, time-management, and an ultimate desire to succeed.[36]  Hopefully, in time as our legal system and communities work to eliminate abuse, people will remember what the sport of swimming is truly about. 

[1] Scott Reid, Congress Investigating USA Swimming’s Handling of Sex Abuse Cases, Los Angeles Daily News (Jan. 26, 2018, 12:01 p.m.), https://www.dailynews.com/2018/01/26/congress-investigating-usa-swimmings-handling-of-sex-abuse-cases/. 

[2] Rick Maese & Emily Giambalvo, Six Former Athletes Accuse USA Swimming of Failing to Act on Sex Abuse Allegations, The Washington Post (Jun. 10, 2020), https://www.washingtonpost.com/sports/2020/06/10/six-former-athletes-accuse-usa-swimming-failing-act-sex-abuse-allegations/.

[3] Associated Press, Six Women File Lawsuits Against USA Swimming Over Alleged Sexual Abuse by Coaches, USA Today (Jun. 10, 2020, 10:18 p.m.), https://www.usatoday.com/story/sports/olympics/2020/06/10/usa-swimming-women-sue-alleged-sex-abuse/5339685002/.

[4] Shanna McCarriston, Six Women Sue USA Swimming for Allegedly Failing to Act on Sexual Abuse Allegations, CBS Sports (Dec. 22, 2021, 11:51 a.m.), https://www.cbssports.com/olympics/news/six-women-sue-usa-swimming-for-allegedly-failing-to-act-on-sexual-abuse-allegations/.

[5] Id.

[6] Associated Press, supra note 3. 

[7] Maese & Giambalvo, supra note 2. 

[8] Associated Press, supra note 3.

[9] Sarah Ehekircher, My Swim Coach Raped Me When I Was 17. USA Swimming Made it Disappear, The Guardian (Aug. 25, 2020),  https://www.theguardian.com/sport/2020/aug/25/my-swim-coach-raped-me-when-i-was-17-usa-swimming-made-it-disappear.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Walker v. USA Swimming, No. 3:16-CV-0825, 2018 WL 397154, at *1-2 (M.D. Tenn. Jan. 12, 2018).

[16] Alanna Vagianos, Explosive Report Says USA Swimming Covered Up Hundreds of Sexual Abuse Cases, Huff Post (Feb. 19, 2018, 1:40 p.m.), https://www.huffpost.com/entry/usa-swimming-sexual-abuse_n_5a8ad81fe4b004fc3194c4b2.

[17] Gabe Fernandez, USA Swimming Ignored Claims of Sexual Abuse for Decades, Report Indicates, The Sporting News (Feb. 18, 2018), https://www.sportingnews.com/us/athletics/news/usa-swimming-sexual-abuse-scandal-olympics-chuck-wielgus-larry-nassar/11cipqwymcv3a1kr02i8ip6s3c.

[18] Id.

[19] Id.; see also AB Staff, USA Swimming Ignored Culture of Sexual Abuse, Athletic Business (Feb. 17, 2018),  https://www.athleticbusiness.com/operations/legal/news/15153283/usa-swimming-ignored-culture-of-sexual-abuse (“Protecting that brand hasn’t come cheap. USA Swimming spent $7.45 million on legal fees between 2006 and 2016, according to the organization’s financial records, nearly 10 times the amount USA Track & Field paid in legal fees during that same period.”).

[20] Fernandez, supra note 17.

[21] Id.

[22] Id.

[23] Id.

[24] Irvin Muchnick, Troubled Waters: USA Swimming’s Struggle to Cover Up Its Sexual Abuse Crisis, Salon (Jun. 26, 2021, 8:00 a.m.), https://www.salon.com/2021/06/26/troubled-waters-usa-swimmings-struggle-to-cover-up-its-sexual-abuse-crisis/.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Vagianos, supra note 16.

[34] Id.

[35] Id.

[36] Jessica A. Gold, We Should Have Seen The USA Swimming Sexual Abuse Allegations Coming, Glamour (Feb. 27, 2018), https://www.glamour.com/story/we-should-have-seen-the-usa-swimming-allegations-coming.

May or Shall? Supreme Court Weighs the Future of Concealed Carry

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Photo Credit: https://www.kmbc.com/article/kansas-governor-vetoes-bill-to-lower-concealed-carry-age/36214096

Authored by: Jackson C. Burrow

Articles Editor, American Journal of Trial Advocacy

Background 

          On November 3, 2021, the Supreme Court heard oral arguments regarding a case with massive implications for Second Amendment rights.[i]  Specifically, the right to conceal carry a firearm and what limitations states might have in restricting said right.[ii]  This issue comes from a restrictive law in New York which requires anyone wishing to possess a concealed carry permit to show “proper cause”.[iii]  Many commentators refer to states such as New York who give complete discretion to state officials to determine who qualifies for a permit on a case by case basis as “may issue” states, while “shall issue” states are required to issue permits to anyone who meets the minimum statutory requirements.[iv]  While New York’s law is at the heart of this case, a handful of other states with similar laws would be affected by a decision in favor of the challengers.[v]

            The challengers of New York’s “may issue” statute are the New York State Rifle & Pistol Association (NYSRPA) as well as Robert Nash and Brandon Koch.[vi]  Nash and Koch were both denied concealed carry permits under the law.[vii]  They challenged the law and the Court of Appeals for the 2nd Circuit affirmed the District Court for the Northern District of New York’s ruling to throw out the case.[viii]  The 2nd Circuit relied on their prior decision in Kachalsky v. County of Westchester which held that New York’s “proper cause” requirement did not violate the Second Amendment.[ix]  The Court in Kachalsky analyzed the rule under District of Columbia v. Heller[x] and found that it was not applicable to New York’s right to restrict the ability to carry handguns in public but rather only in the home.[xi]  They went on to apply heightened scrutiny and found that the law was substantially related to the state’s interest in protecting public safety.[xii]  After the 2nd Circuit’s decision, the challengers appealed to the Supreme Court which led to the Court granting certiorari.[xiii]  

NYSRPA’s Argument

          The challenger’s claim that the law is unconstitutional for two main reasons.  First, they claim that “may issue” laws are antithetical to the idea of the Second Amendment and use the Court’s prior holding in Heller to support their claim.[xiv]  Specifically, they argue that based on the decision in Heller, the right to carry a firearm outside of the home is a constitutional right and that this right “is not some extraordinary action that requires an extraordinary demonstration of need” as required by the statute.[xv]  Next, they give a historical analysis.  NYSRPA began with the fact that not only did the early American colonies allow gun possession, but some actually required it.[xvi]  They went on to give deference to the historical analysis in Heller[xvii], specifically the view of Second Amendment rights post-reconstruction which saw those rights as being critical to freed slaves ability to protect themselves.[xviii]  The challengers stated that the historical analysis given in Heller established that the Second Amendment “protects an individual right to carry firearms outside the home for purposes of self-defense.”[xix]

Supreme Court’s Issues with NYSRPA’s Argument

            Most of the justices who had issues with NYSRPA’s argument were on the benches liberal side. To begin, Justice Sotomayor challenged the historical perspective of the challengers.[xx] She began at our founding and onto present time and highlighted the multiple instances in which states had broad discretion to impose different gun restrictions as they saw fit.[xxi]  She also seemed to be persuaded by the 2nd Circuit’s opinion in Kachalsky that claimed Heller was limited to prohibitions inside of the home rather than those outside.[xxii]  Also, justices from both sides of the bench questioned what limits could be imposed to concealed carry, especially in sensitive areas such as “courthouses, schools, and airports.”[xxiii]

New York’s Argument

          The state of New York argued that while they do agree there is a right to carry a firearm outside of the home for purposes of self-defense, the right is not absolute.[xxiv]  The state began by giving their own historical analysis, stating that “from the founding era through the 20th Century, at least 20 states have at one time or another either prohibited all carrying of handguns in populous areas or limited it to those with good cause.”[xxv]  They went on to argue that New York is simply following the tradition of states regulating public carry and that other states also have “may issue” requirements similar to theirs.[xxvi]  They claimed that it also made more sense to have lower acceptance rates for permit applications to citizens in high density areas because of the availability of law enforcement and the high risk of injury if concealed carry were allowed in such areas.[xxvii]

Supreme Court’s Issues with New York’s Argument

            The court seemed to have more issues with New York’s argument, specifically the conservative justices.[xxviii]  Chief Justice Roberts stated that Heller held that the basis for the Second Amendment was the right to self-defense and that by giving preference in permits to those in rural areas rather than high-density ones, New York limited citizens ability to defend themselves in areas where violence or crime is more likely to occur.[xxix]  New York responded that there was a higher risk of gun violence in higher density areas if large amounts of people carried firearms, the Court found this argument unconvincing.[xxx]  Justice Alito argued that it made no sense for the State to limit law-abiding citizens from exercising their Second Amendment right when there were high numbers of illegal firearms on the streets of New York.[xxxi]  Justice Kavanaugh doubted the constitutionality of the State giving an individual officer the discretion to subjectively deny an application for a concealed carry permit at will.[xxxii]  Finally, Chief Justice Roberts questioned why a citizen should be required to prove they should be able to exercise a clear constitutional right.[xxxiii]

Broader Implications

            Depending on the holding in this case, “may issue” laws across the country will either be held a permissible exercise of states’ rights or an unconstitutional restriction on Second Amendment freedoms.  If the latter is held true, the eight states as well as the District of Columbia which have “may issue” laws currently in place would be required to transition to “shall issue” systems.[xxxiv]  Regardless, this decision will have massive implications for Second Amendment rights in a way that our country hasn’t seen since Heller. 

[i] N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843 (U.S. argued Nov. 3, 2021) (Ballotpedia). 

[ii] Amy Howe, In Major Second Amendment Case, Court will Review Limits on Carrying a Concealed Gun in Public, ScotusBlog, Oct. 27, 2021, https://www.scotusblog.com/2021/10/in-major-second-amendment-case-court-will-review-limits-on-carrying-a-concealed-gun-in-public/

[iii] NY Penal Law § 400.00(2)(f) (“A license for a pistol or revolver, shall be issued to . . . [H]ave and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.”). 

[iv] May-Issue vs. Shall-Issue Concealed Carry States, U.S. Concealed Carry Ass’n, April 20, 2019, https://www.usconcealedcarry.com/blog/may-issue-vs-shall-issue-concealed-carry-states/. 

[v]  Guns in Public: Concealed Carry, Giffords Law Center, https://giffords.org/lawcenter/gun-laws/policy-areas/guns-in-public/concealed-carry/ (last visited Feb. 4, 2022) (“[E]ight states and the District of Columbia have may issue laws.”). 

[vi] Howe, supra note 2. 

[vii] Id. 

[viii] N.Y. State Rifle & Pistol Ass’n v. Beach, 19-156-cv, (2d Cir. 2020).

[ix] 701 F.3d 81 (2d Cir. 2012). 

[x] 554 U.S. 750 (2008).

[xi] Id. at 94. 

[xii] Id. at 98. 

[xiii] Howe, supra note 2.

[xiv] 554 U.S. 750 (2008).

[xv] Bruen, supra note 1, at 5.

[xvi] Howe, supra note 2. 

[xvii] Bruen, supra note 1, at 4. 

[xviii] Howe, supra note 2. 

[xix] Bruen, supra note 1, at 4. 

[xx] Amy Howe, Majority of Court Appears Dubious of New York Gun-Control Law, but Justices Mull Narrow Ruling, ScotusBlog, Nov. 3, 2021, https://www.scotusblog.com/2021/11/majority-of-court-appears-dubious-of-new-york-gun-control-law-but-justices-mull-narrow-ruling/

[xxi] Id. 

[xxii] Bruen, supra note 1, at 19. 

[xxiii] Howe, supra note 20. 

[xxiv] Howe, supra note 2. 

[xxv] Bruen, supra note 1, at 59. 

[xxvi] Id. at note 8-17. 

[xxvii] Howe, supra note 2.  

[xxviii] Howe, supra note 20. 

[xxix] Bruen, supra note 1, at 62. 

[xxx] Id. at 65-66. 

[xxxi] Id. at 67-69. 

[xxxii] Id. at 72. 

[xxxiii] Id. at 94. 

[xxxiv] The Ball is in the Supreme Court – Implications of the NYSRPA v. Bruen Case, The Campaign to Keep Guns off Campus, Nov. 12, 2021, https://www.keepgunsoffcampus.org/blog/2021/11/12/the-ball-is-in-the-supreme-court-implications-of-the-nysrpa-vs-bruen-case/. 

State v. Numrich: OSHA’s Limited Penalties Will Not Shield You from State Criminal Charges 

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Photo Credit: https://cumberlandtrialjournalcom.files.wordpress.com/2022/11/1d7d4-adobestock_348206902.jpeg

Authored by: Charles Jackson Parker

Editor in Chief, American Journal of Trial Advocacy

          For the first time in the state of Washington, a contractor has been sentenced to serve 45 days in jail after a trench collapse caused the death of employee Harold Felton in 2016.[i]  The Occupational Safety and Health Administration (“OSHA”) regulates workplace safety across the nation.[ii]  There are construction sites covering every city in the country, so OSHA rarely visits every site in the agent’s region and operates by violation tips and periodic random inspections.[iii]  Construction sites provide for a high-risk workplace with incomplete buildings, elevated work surfaces, heavy equipment, saws, high-powered tools, and chemicals, and with these risks come the high responsibility of a contractor to monitor the site and ensure OSHA standards are being implemented and followed.[iv]  The penalty for an OSHA violation can be a warning for a violation that does not directly affect a worker’s health and safety and for other violations penalties can increase up to $132,598.[v]  OSHA defines a “willful violation” as “a complete disregard for the health and safety of employees.”[vi]  There is very little talk on job sites about what happens if the unthinkable occurs, an employee is fatally injured, and a violation is found.

          In the construction industry, some projects, especially public projects, require competitive bidding to ensure the correct and fair use of tax dollars to fund the projects.[viii]  Price alone is not the only factor that the state actors are allowed to use when picking the qualified contractor.[ix]  The state actors or private owners will also look at the project history to ensure that the contractor has a history of successful projects and, more importantly, the safety record the company has.  A fine alone will hurt a contractor, but a willful violation could prevent the contractor from getting any work for several years. Continue reading “State v. Numrich: OSHA’s Limited Penalties Will Not Shield You from State Criminal Charges “ →