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

Photo Credit: http://sbegumlaw.com/wp-content/uploads/2015/11/copyright-definition.jpg

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), https://law.duke.edu/cspd/publicdomainday/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), https://www.teachingcopyright.org/handout/public-domain-faq.html (“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), https://law.duke.edu/cspd/publicdomainday/2018/faqs/ (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, https://www.teachingcopyright.org/handout/public-domain-faq.html (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), https://creativecommons.org/2018/01/15/copyright-term-extension-finally-done/ (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), https://arstechnica.com/tech-policy/2018/01/hollywood-says-its-not-planning-another-copyright-extension-push/ (“[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: campaignsandelections.com

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), https://www.wsj.com/articles/lawyers-faced-with-emojis-and-emoticons-are-all-1517243950?mod=searchresults&page=1&pos=1.

[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), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3154686/.

[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), http://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2013.1133.

[3] Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics (Dec. 14, 2006), https://www.bjs.gov/content/pub/pdf/mhppji.pdf.

[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), https://constitutioncenter.org/blog/everything-you-ever-wanted-to-know-about-the-bill-of-rights.

[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), http://www.foxnews.com/us/2017/07/25/appeals-court-blocks-dcs-concealed-carry-law-on-second-amendment-grounds.html (explaining the court’s decision, characterizing it as “an outright ban in violation of the Second Amendment”).

[9] Id.

[10] United States Census Bureau, https://www.census.gov/quickfacts/DC (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.

No Constitutional Right to Affordable Bail – Where Do We Go From Here?

By: Jonathan Brown
Member, American Journal of Trial Advocacy

Contrary to popular belief, the United States Constitution does not guarantee a right to affordable bail.[1] In an attempt to avoid locking people up because of their lack of wealth, a person is guaranteed the right to have their bail reviewed by a judge.[2] A hot-button issue for many courts arises when bail schedules automatically apply a specific bail for a given offense.

In a recent ruling from the Fifth Circuit, the court recognized that while bail schedules themselves are not unconstitutional, the methods used in the particular case at hand were unconstitutional.[3] Furthermore, the court found that while bail is not purely defined by what an individual can afford, courts must have sufficient safeguards in place and review each and every case.[4] In that case, Maranda Odonnell and others brought suit against Harris County, Texas, claiming that, among other things, the county’s system of setting bail for indigent misdemeanor arrestees was unconstitutional.[5] In Harris County, misdemeanor arrestees “who can’t afford their bail bonds regularly sit in jail – often until their cases are resolved days or weeks later – while similar defendants who have cash are released.”[6] The District Court in Harris County agreed with Odonnell and issued a preliminary injunction, which was then appealed by Harris County.[7] The Fifth Circuit heard the appeal and reviewed the procedural due process and the equal protection findings.[8]

Procedural Due Process

Two questions must be asked when evaluating a claim under procedural due process.[9] “The first question asks whether there exists a liberty or property interest which has been interfered with by the state; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.”[10] A liberty interest can come from either the “Due Process Clause itself [or from] the laws of the states.”[11] An accused has a constitutional right to “remain free before trial” so that they can prepare for their defense.[12] Similar to Alabama,[13] Texas’s constitution states that “[a]ll prisoners shall be bailable by sufficient sureties,” so long as they do not fit an exception.[14] This statute creates a liberty interest in the defendant’s release from custody before trial.

The Fifth Circuit noted that “bail is not purely defined by what the detainee can afford.”[15] Therefore, it follows that the constitutional provision “does not create an automatic right to pretrial release.”[16] However, Texas law does create a right that defendants can have bail if there are sufficient sureties.[17]

Since the court in the Fifth Circuit held that there was a liberty interest, the court next examined whether there were procedures in place to protect the detainee’s Due Process rights.[18] To determine whether the procedures are adequate, the court must use the test set forth by the Supreme Court of the United States which weighs “the private interest . . . affected by the official action” along with “the risk of an erroneous deprivation of such interest” and “the Government’s interest.”[19] Texas imposes the bail orders “almost automatically on indigent arrestees.”[20] Given that the defendants’ interest in pretrial liberty and the government’s interest in assuring the defendant comes to court are important, the current safeguards in place were found to not be sufficient.[21] The Fifth Circuit overruled some of the district court’s proposed safeguards, but nonetheless found that the current safeguards in place were not enough.[22] The Fifth Circuit stated that “the current procedure does not sufficiently protect detainees from magistrates imposing bail as an ‘instrument of oppression.’”[23] Therefore, the court found that the indigent defendant’s constitutional right to Due Process was violated.[24]

Equal Protection

The bail system in Harris County treated misdemeanor defendants differently based on their respective wealth.[25] When evaluating an Equal Protection claim involving criminal laws that detain poor defendants solely based on their indigence, intermediate scrutiny is to be applied.[26] The Supreme Court of the United States previously held that indigents receive heightened scrutiny if: (1) “because of their impunity they were completely unable to pay for some desired benefit” and (2) “as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.”[27] The Odonnell court found that both requirements were met in the present case, thus heightened scrutiny was appropriate.[28] Under heightened scrutiny, Harris County’s policy failed to meet the requirements because, “poor arrestees in Harris County are incarcerated where similarly situated wealthy arrestees are not, solely because the indigent cannot afford to pay a secured bond.”[29]

National Implications

Many have championed this case to mean that affordable bail is a constitutional right. Fifth Circuit precedent merely implies that one has a right to due process so that their bail may be reviewed by an informed judge.[30] This hearing must take place within 48 hours of arrest.[31] To avoid trouncing on someone’s constitutional rights, the Fifth Circuit held that states must “engage in a case by case evaluation of a given arrestee’s circumstances.”[32]

On the heels of the district ruling in Harris County, inmates in Dallas County made similar claims.[33] Among those that have filed suit is a 47-year-old homeless and jobless transgender woman.[34] She was unable to afford a $500 misdemeanor bond and had to sit in jail.[35] The American Civil Liberties Union (“ACLU”) has started a movement for misdemeanor bail reform.[36] The ACLU launched an initiative “that focuses on bolstering the movement to end money bail and eliminate wealth-based pretrial detention.”[37] The director of the ACLU campaign for Smart Justice, Udi Ofer, stated, “[i]t’s time to end our nation’s current system of cash bail that lets the size of your wallet determine whether you are granted freedom or stay locked up.”[38] Research shows that “[o]n any given day in the United States, nearly 450,000 people are sitting in jail even though they have not been convicted.”[39]

Changes are likely on the horizon for many counties and states following the Fifth Circuit’s ruling in Odonnell. Balancing a state’s interest in ensuring a defendant shows up to court with an individual’s right to pretrial release is a delicate balance; a balance that will have to be decided throughout the court system, on a state by state basis. Money talks in America but “[m]oney should never decide a person’s freedom.”[40]

[1] See Odonnell v. Harris County, 882 F.3d 528, 540-45 (5th Cir. 2018) (discussing how the Constitution only gives indirect protection from un-affordable bail through the due process and equal protection clauses).

[2] Id. at 541.

[3] Id. at 545.

[4] Id. at 541.

[5] Id. at 528.

[6] Jolie Mccullough, How Harris County’s federal bail lawsuit spreads beyond Houston, The Texas Tribune (Oct. 2, 2017), https://www.texastribune.org/2017/10/02/how-harris-countys-bail-lawsuit-spreads-beyond-houston/.

[7] Odonnell, 882 F.3d 528.

[8] Id. at 535.

[9] Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010).

[10] Id. (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).

[11] Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (quoting Hewitt v. Helms, 459 U.S. 460, 466 (1983)).

[12] Ex parte Anderer, 61 S.W.3d 398, 404-05 (Tex. Crim. App. 2001) (en banc) (quoting Stack v. Boyle, 342 U.S. 1, 3 (1951)).

[13] See Ala. Const. art. 1, § 16(stating “[t]hat all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required”).

[14] See Tex. Const. art. 1, § 11 (stating “[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.”).

[15] Odonnell, 882 F.3d at 541(citing Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980)).

[16] Id.

[17] See Tex. Const. art. 1, § 11 (stating that all prisoners can be bailable by sufficient sureties).

[18] Odonnell, 882 F.3d at 541.

[19] Matthews v. Eldridge, 424 U.S. 319, 335 (1976).

[20] Odonnell, 882 F.3d at 541.

[21] Id. at 542.

[22] Id. at 546.

[23] Id. at 541.

[24] Id. at 543.

[25] Odonnell, 882 F.3dat 543.

[26] Id. at 544.

[27] San Antonio Indep. Sch. Dist. V. Rodriguez, 411 U.S. 1, 20 (1973).

[28] Odonnell, 882 F.3d at 544.

[29] Id.

[30] Id. at 543, 546.

[31] Id. at 543.

[32] Id. at 546.

[33] Jolie Mccullough, Poor inmates sue Dallas County over bail system following Harris County ruling, The Texas Tribune (Jan. 22, 2018), https://www.texastribune.org/2018/01/22/following-harris-county-ruling-poor-inmates-sue-dallas-county-over-bai/.

[34] Id.

[35] Id.

[36] ACLU announces nationwide campaign to support movement to end money bail, ACLU (Dec. 11, 2017), https://www.aclu.org/news/aclu-announces-nationwide-campaign-support-movement-end-money-bail.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

Must Police Have a Search Warrant Before They Can Compel Mobile Phone Service Providers to Turn Over Data That Pinpoints a Suspect’s Physical Movements?

By: Jacey Mann

Student Materials Editor, American Journal of Trial Advocacy

With the “drop” of the new iPhone 8, and with the Android companies ever competing to stay “the best in the industry,” technology is advancing at miraculous speeds. Further, with companies, employers, and other business ventures hopping on the “social media train,” our generation is not only encouraged, but rather nearly forced to always have their smartphones with them. As children, and even as adults, we are cautioned to “be careful what you post on the Internet,” and constantly reminded that what gets posted will live on forever. But until recently, there has been little done about encouraging people to “hide” their “locations.” I try to be prudent about my knowledge of the technology I surround myself with, but because “updates” are forced every couple of months, I admit, it is incredibly hard to stay “in the know” about what all my device does. Cell phones have always used towers to communicate with one another, but with the rise of cell phone applications (“apps”), more and more location information is being shared. The warnings we hear warn us of “stranger danger” and other despicable happenings, but how many have stopped to think about the information their network providers receive and store? The network providers have your volunteered permission to store your call logs, your text messages, and even your every move. This cell site location information (“CSLI”) that your network provider lawfully collects is frequently requested by the state and other investigators to pinpoint a suspect’s location during the time of a criminal act.[1] The Fourth Circuit Court of Appeals, in the United States v. Graham,[2] explained:

[h]istorical CSLI identifies cell sites, or ‘base stations,’ to and from which a cell phone has sent or received radio signals, and the particular points in the time at which these transmissions occurred, over a given timeframe. Cell sites are placed at various locations throughout a service provider’s coverage area and are often placed on towers with antennae arranged in sectors facing multiple directions to better facilitate radio transmissions. A cell phone connects to a service provider’s cellular network through communications with cell sites, occurring whenever a call or text message is sent or received by the phone. The phone will connect to the cell site with which it shares the strongest signal, which is typically the nearest cell site. The connecting cell site can change over the course of a single call as the phone travels through the coverage area. When the phone connects to the network, the service provider automatically captures and retains certain information about the communication, including identification of the specific cell site and sector through which the connection is made.[3]

Using the tower information, the CSLI can help pinpoint the location of a person carrying a cell phone, and provides an almost “real-time” movement tracker.[4] The Stored Communications Act (“SCA”) allows government entities to request CSLI through procedural matters pursuant to 18 U.S.C. Section 2703(d).[5] However, because section 2703(d) does not provide direction as to when a warrant is necessary, the courts have frequently had to deal with this topic.[6]

The Third, Fifth, and Eleventh circuits held that no warrant was required to obtain the CSLI.[7] However, when the Fourth Circuit stepped up to tackle this privacy issue, specifically in regards to extensive warrantless searches, it created a circuit split by holding “the government invades a matter in which a person has an expectation of privacy that society is willing to recognize as reasonable.”[8] The Court further explained, “in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person’s CSLI is requested, not the time covered by the person’s CSLI that the Commonwealth ultimately seeks to use as evidence at trial.”[9] However, this circuit split was later dissolved after an en banc hearing held “that the Government’s acquisition of historical CSLI from Defendant’s cell phone provider did not violate the Fourth Amendment.”[10]

Even though the circuit split has still seemingly “dissolved,” the issue has again entered the courts for consideration. The Supreme Court of Indiana in Zanders v. State,[11] considered whether the police must obtain a search warrant prior to compelling service providers to turn over historical CSLI.[12] Marcus Zanders was a suspect, who was eventually charged with four counts for his involvement in an armed-robbery incident.[13] During the course of the investigation into his involvement, the police obtained historical CSLI from his cell phone provider, Sprint.[14] After his convictions, Zanders “appealed arguing that obtaining the CSLI violated his Federal and State Constitutional rights …” Upon a hearing, the Court of Appeals reversed the state court holding, finding that “obtaining the historical CSLI without a warrant violated the Fourth Amendment, reasoning that Zanders had a reasonable expectation of privacy in the records.”[15] After granting certiorari, the Supreme Court of Indiana agreed to hear the case, eventually reversing the Court of Appeals’ opinion, and finding that the collection of historical CSLI without a search warrant was not improper and was not a violation of the Fourth Amendment.[16] The court’s holding turned on their interpretation of the “third-party doctrine[,]” which is in reference to the Fourth Amendment that “does not require police to obtain a search warrant to gather information an individual has voluntarily relinquished to a third party.”[17] This “doctrine compels that asking a provider for a user’s historical CSLI is not a Fourth Amendment ‘search.’”[18] The legal significance of the Zanders case is that the holding aligns itself with the Fourth, Fifth, Sixth, and Eleventh circuits. However, the Third Circuit now states that a warrant is required, whereas before, they were aligned with the majority.[19]

The defendants in the United States v. Carpenter,[20] Timothy Carpenter and Timothy Sanders, argued that the cell phone carrier’s “business records” contained the historical CSLI information that the FBI requested in regards to a string of armed robberies the two were convicted of committing.[21] They further contended “that the government’s collection of those records constituted a warrantless search in violation of the Fourth Amendment.”[22] Similar to Graham, the FBI in Carpenter collected the historical CSLI “pursuant to a court order issued under the Stored Communications Act, which required the government to show “reasonable grounds” for believing that the records were ‘relevant and material to an ongoing investigation.’”[23]

Upon review of Carpenter, the Sixth Circuit Court of Appeals agreed that “[t]his case involves an asserted privacy interest in information related to personal communications,” but quickly reminded readers that “the federal courts have long recognized a core distinction: although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.”[24] Also in its review, the Court of Appeals explained that “[t]o fall within [Fourth Amendment] protections, an expectation of privacy must satisfy ‘a twofold requirement’: first, the person asserting it must ‘have exhibited an actual (subjective) expectation of privacy’; and second, that expectation must ‘be one that society is prepared to recognize as reasonable.’”[25] The Court held that “the CSLI is unprotected because it deals with routing or conveying information, not the content of the related communications.”[26]

On June 5, 2017, the Supreme Court of the United States granted certiorari in the previously mentioned case of United States v. Carpenter.[27] While some might say that this comes a little late, hopefully the Supreme Court will put an end to the inconsistent holdings and uncertainty surrounding this issue.

[1] U.S. v. Graham, 796 F.3d 332, 341 (4th Cir. 2015); Commonwealth v. Estabrook, 38 N.E.3d 231, 234-35; see also Richard Wolf, Supreme court to rule on cellphone location privacy, USA Today (June 5, 2017 4:08 PM), https://www.usatoday.com/story/news/politics/2017/06/05/supreme-court-rule-cellphone-location-privacy/102191128/ (stating, “Police conducting criminal investigations routinely get court orders to obtain records from cellphone service providers showing where suspects have traveled, based on which cell towers they used.”). 

[2] 796 F.3d 332 (4th Cir. 2015).

[3] Id. at 343.

[4] Id.

[5] Id. at 343-44 (citing 18 U.S.C. §§ 2701-2711 (2010)).

[6] See id. at 344 (providing “[t]he statute offers no express direction as to when the government should seek a warrant versus a § 2703(d) order.”).

[7] See In re Application of the U.S. for and Order Directing a Provider of Elec. Commc’n Serv. To Disclose Records to the Gov’t, 620 F.3d 304, 309 (3d. Cir. 2010) (focusing on the fact that CSLI information is dissimilar from tracking device information.); United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014) (relying on the notion of “voluntary exposure” for not requiring a warrant); U.S. v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (determining that “cell users know that they must transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower’s range, and that cell phone companies make records of cell-tower usage.”).

[8] Graham, 796 F.3d at 344 (citing Katz v. U.S., 389 U.S. 347, 353 (1967) and U.S. v. Davis, 690 F.3d 226, 241-42 (4th Cir. 2012)).

[9] Commonwealth v. Estabrook, 38 N.E. 231, 237 (Mass. 2015) (emphasis added).

[10] United States v. Graham, 824 F.3d 421, 424 (4th Cir. 2016).

[11] 73 N.E.3d 178 (Ind. 2017).

[12] Id. at 181.

[13] Id. at 179.

[14] Id.

[15] Id. at 181.

[16] Id. at 189

[17] Zanders, 73 N.E.3d at 179, 183.

[18] Id. at 189.

[19] See In re Application of the U.S. for and Order Directing a Provider of Elec. Commc’n Serv. To Disclose Records to the Gov’t, 620 F.3d 304, 309 (3d. Cir. 2010) (focusing on the fact that CSLI information is dissimilar from tracking device information.).

[20] 819 F.3d 880 (6th Cir. 2015).

[21] Carpenter, 819 F.3d at 884-85.

[22] Id. at 884.

[23] Id. at 885; see also Graham, 796 F.3d at 343-44.

[24] Id. at 886 (referring to Ex parte Jackson, 96 U.S. 727, 733 (1878) (holding “that postal inspectors needed a search warrant to open letters and packages, but that the ‘outward form and weight’ of those mailings – including, of course, the recipient’s name and physical address – was not constitutionally protected.”)); see also Katz v. United States, 389 U.S. 347, 353 (1967) (holding that “‘[t]he Government’s activities in electronically listening to and recording the petitioner’s words’ was a search under the Fourth Amendment.”).

[25] Carpenter, 819 F.3d at 886 (citing Katz v. United States, 389 U.S. 347, 361 (1967)) (internal citations omitted).

[26] Carpenter, 819 F.3d at 895.

[27] 819 F.3d 880 (6th Cir. 2015); Carpenter v. United States, 137 S.Ct. 2211; see also Supreme Court Today Tracker, Bloomberg Law, https://www.bloomberglaw.com/product/blaw/tracker/048777e089718f33676774d6fae0e64d/summary/98342164/offset/0.