Article III Standing in Biometric Privacy Suits

Written by Arian Soroush

Image by The U.S. Army, CC-BY 2.0 License.

As the use of biometric technology has grown increasingly prevalent in our everyday lives, the legal issues surrounding its use have rapidly developed. Ranging from facial recognition technology employed by social media providers to fingerprint technology adopted by employers, biometric technology has important societal implications. While many find ease and benefit in its uses, others sense a justifiable wariness over its proliferation. Biometric technology consists of an individual’s private and unique biologic identifiers. Such information in the hands of large companies poses concerns regarding what those entities do with that private information and, more importantly, what might happen if that information ends up in the hands of nefarious third parties.

With these rising concerns, many individuals have brought suit against companies and employers for their use of biometric information. With its passage of the Biometric Information Privacy Act (BIPA), Illinois is the only state to have enacted a statute that allows a private right of action for biometric privacy violations. Many of these suits have transformed to class actions, often alleging defendants’ violations of BIPA’s procedural requirements of notice and consent. Defendants, as a strategy to dismiss these claims, try to remove cases to federal courts where Article III standing requirements pose a substantial hurdle to BIPA plaintiffs.

Article III’s injury-in-fact requirement for standing has long been a source of litigation in federal courts. To establish injury-in-fact, a plaintiff must show he suffered an actual, concrete harm to a legally protected interest. A defendant’s violation of a statutorily-created right, alone, does not necessarily constitute an actual, concrete injury to a plaintiff. While legislatures can create a legally cognizable interest through a statute and its procedural requirements, a plaintiff can only obtain Article III standing if that statute’s procedural requirements were designed to protect a concrete, private interest of the plaintiff. The question then becomes whether BIPA and its requirements aim to protect a concrete, legally recognized consumer interest and whether violations of BIPA’s various provisions amount to an actual, concrete harm that warrants Article III standing.

The Supreme Court’s 2016 opinion in Spokeo v. Robins provided valuable guidance for properly conducting a concrete harm analysis for alleged intangible harms, noting that bare procedural violations, without evidence of actual injury, do not warrant Article III standing. Yet, the Spokeo ruling left considerable uncertainty as to what types of alleged injuries are sufficient for standing when no actual damages are alleged. This uncertainty extends to biometric privacy claims, where plaintiffs generally invoke procedural violations and seek statutory remedies under Illinois’ Biometric Information Privacy Act, often without alleging any actual damages. There has not yet been significant literature on how these standing issues apply in biometric privacy suits, and case law development in the wake of Spokeo’s holding has been scant. Some federal courts have begun to address BIPA claims with Spokeo in mind, but with seemingly conflicting outcomes. Nonetheless, the jurisprudence of Spokeo, as well as important policy considerations, reconciles this conflict and suggests a rejection of standing for plaintiffs that bring biometric privacy suits alleging BIPA procedural violations, especially when the alleged BIPA violations did not actually result in an injury to the plaintiff(s).

BIPA does not appear to create a concrete legal interest, but rather resembles a regulatory statute that addresses a general, public interest in controlling the dissemination and storage of biometric data. Even if it did explicitly protect a concrete interest, violations of its procedural requirements likely will not evidence a concrete and actual harm. There are some exceptional circumstances, for example, if someone is tagged in an embarrassing photo without his consent that leads to his termination from work. However, more common allegations of procedural violations will not suffice. Unlike plaintiffs suing companies for data breaches where third parties likely obtained such data for nefarious purposes such as identity theft, BIPA plaintiffs alleging a company’s failure to comply with BIPA procedure can rarely show a significant risk of nefarious misuse of their biometric data.

Brendan Dassey Asks Supreme Court to Hear His Case

Written by Elizabeth Wurm

Image by Tracy Symonds-Keogh (CC BY-SA 4.0), via Wikimedia Commons

Brendan Dassey, who gained national recognition in 2015 from Netflix’s “Making a Murderer” docuseries, is now bringing his story to the U.S. Supreme Court. Dassey’s attorneys, Laura Nirider and Steve Drizin, co-directors of the Center on Wrongful Convictions of Youth at Northwestern’s Bluhm Legal Clinic, recognize the uphill battle that Dassey faces in getting the Supreme Court to grant a petition for certiorari. “But if there ever was a juvenile confession case that the court should hear, this is it,” Nirider commented.

Dassey was convicted in 2007 by a Wisconsin state court along with his uncle, Steven Avery, for the rape and murder of Teresa Halbach. At the time of the murder, Dassey was sixteen years old, had an extremely low IQ, was in special education classes, and had social limitations. At trial, the only evidence used to convict Dassey was a videotaped confession made during an interrogation interview of Dassey by two local police detectives.

In 2014, Dassey’s attorneys filed a federal habeas petition asking the federal court to reconsider the Wisconsin Court of Appeal’s decision upholding the denial of Dassey’s motion to suppress the confession. Dassey argued the confession was involuntary and coerced, and therefore unconstitutional. The videotaped confession, shown in “Making a Murderer,” outraged millions of viewers as they watched investigators subject Dassey to psychological and coercive interrogation techniques. Detectives continuously fed facts and suggestions to Brendan, telling him if he told the “truth,”—which was carefully crafted to only mean what the investigators wanted to hear—he would be free. Eventually, investigators extracted from Dassey a convoluted and internally inconsistent account of him and Steven raping, killing, and mutilating the body of Teresa Halbach. The petition challenges the state court’s failure to properly evaluate the voluntariness of this confession.

I work in the Bluhm Legal Clinic as part of the Center on Wrongful Convictions team and I spoke with Drizin and Nirider regarding their recent petition for certiorari to the U.S. Supreme Court, which was filed on February 20th, 2018. The petition was filed after the Seventh Circuit, sitting en banc, reversed its panel decision and ruled in favor of Wisconsin in December 2017.

Although the loss was a blow, Drizin and Nirider had already discussed the likelihood of a certiorari petition from one side or the other. “We always knew the case was going to end up in the Supreme Court,” Drizin noted. The clinic and its students sprang into action shortly after the en banc decision was issued. Drizin and Nirider knew that at this stage it was critical to add a litigator with experience arguing before the Supreme Court to their team. They immediately thought of former Solicitor General Seth Waxman, who has argued seventy-five cases before the Supreme Court. Waxman and a dedicated legal team from his firm, WilmerHale, worked with Drizin and Nirider to prepare the petition, a process which took about two months. Drizin expressed that the opportunity to work with Waxman and his team, as well as “an amazing group of lawyers who are writing amicus briefs,” has been one of the most exciting aspects of the entire process.

The voluntariness of a confession is determined by evaluating the “totality of the circumstances” surrounding the confession. Seventy years ago, the U.S. Supreme Court declared that the totality of the circumstances calculus in the juvenile context mandates that courts evaluate the voluntariness of juvenile confessions with “special care.”

It has been nearly forty years since the Court last addressed a juvenile involuntary confession case. In his petition, Dassey emphasizes this long gap as well as the advances in social science research demonstrating the prevalence of involuntary confessions by juveniles and people with intellectual limitations. Dassey asks the Court to reaffirm the Court’s holdings in Gallegos, Gault, and Fare, requiring courts use special care in juvenile confessions. “Too many courts around the country, for many years, have been misapplying or even ignoring the Supreme Court’s instructions that confessions from mentally impaired kids like Brendan Dassey must be examined with the greatest care,” said Drizin.

The momentousness of the petition, not only for Dassey, but for countless other juvenile defendants, hasn’t escaped Dassey’s lawyers. “If the Court accepts cert., it will mean that a landmark decision will be issued—the first time the Court has addressed “voluntariness” in a juvenile confession case in almost forty years,” Drizin told me. The Court is expected to decide later this summer whether to hear the case.


Perceptions of Misperceived Race

Written by Patrick Telles

Image by AdrienneCC BY-NC-ND 2.0.

In recent years our federal courts have taken steps to address racial discrimination by emphasizing what has been called colorblindness––the idea that our laws should achieve racial equality by eliminating racial categories. While this catchall solution addresses a majority of racial discrimination claims, it fails to properly address misperceived racial discrimination. In cases involving misperceived race, an individual claims that he or she has been discriminated against in some way based on the racial identity that others have imputed onto her, despite her identifying as a different race. Misperceived race cases and how courts define race has produced conflicting outcomes across different areas of law.

Issues of misperceived race have been seen predominantly in Title VII employment discrimination cases, and federal courts are currently split on how to handle this unique issue. A majority of the federal courts address misperceived race in employment discrimination by attempting to identify the plaintiff’s “actual race.” If that “actual” racial identity does not match with the discriminators’ perception of the plaintiff’s race, then courts find there was no discrimination under Title VII. These courts may be using “actual race” because Title VII lacks statutory language protecting against discrimination of perceived traits. In contrast, a minority of federal courts have viewed discrimination of perceived race as a form of discrimination based on race, and therefore is protected by Title VII.

While the majority of federal courts using the “actual race” standard have good reasons for doing so, it is important to note that their reasoning comes into direct conflict with how immigration law defines race in asylum hearings. In asylum hearings, an asylum-seeker must show that she has faced persecution in her country of origin or has a well-founded fear of future persecution upon return to her country of origin. This persecution must be based on at least one of five nexus factors: race, religion, nationality, membership in a particular social group, and political opinion. While neither the Board of Immigration Appeals (BIA) nor any federal circuit courts have specifically found that persecution based on misperceived race falls within the nexus factors required to be eligible for asylum, case law strongly implies it is included. In 1996, the BIA decided in In Re S-P- that “[p]ersecution for ‘imputed’ grounds (e.g., where one is erroneously thought to hold particular political opinions or mistakenly believed to be a member of a religious sect) can satisfy the ‘refugee’ definition.” Because courts have not reviewed the issue of persecution based on imputed grounds since In Re S-P-, there has been no official ruling expanding persecution for imputed grounds to race. However, it is important to note that federal circuit courts have expanded In Re S-P- to encompass the other nexus factors of religion, nationality, membership in a particular social group, and political opinion. Based on this, it is only a matter of time that persecution based on imputed race is accepted as plausible grounds for asylum under immigration law.

When comparing these perspectives of race, the potential conflicting interpretations of race become apparent. A majority of jurisdictions look to an individual’s “actual race” when considering employment discrimination, whereas the BIA and federal circuit courts are moving toward recognizing perceived race in asylum hearings. If the BIA does extend the imputed grounds to race, the rulings may produce the strange result that asylum hearings offer broader protection to individuals entering the U.S. than employment discrimination offers to U.S. citizens from actions occurring within the U.S. Ultimately, if this conflict occurs, it should be addressed through either the judiciary or legislature in a manner that creates more consistency between immigration and employment law.


Software Innovation After Alice

Written by Christopher Shoup

Image by You Belong In Longmont, CC-BY 2.0 License.

The Supreme Court decided Alice Corp. v. CLS Bank Int’l in June 2014, a decision which greatly restricted the scope of patentability for software innovations. The case concerned an electronic escrow service—a computer program that acted as a “third party intermediary” between two negotiating parties and ensured that both would meet their financial obligations. The primary question for the Court was whether the patents were for “abstract ideas” and thus ineligible for patent protection under 35 U.S.C. § 101. The Court decided the inventions were not eligible for patent protection, holding that the claims merely “implement[ed] the abstract idea of intermediated settlement on a generic computer”.

Unsurprisingly, this holding – that software that applies well-known actions is patent ineligible – has profoundly impacted the state of software patents in the United States. Already-issued patents have felt the most tangible impacts of the decision; as of 2016, a total of 378 software patents have been invalidated out of a total of 568 challenges (66.5%). A loss in patent protection could, at the very least, be expected to hamper innovation and growth in the software industry. However, the industry’s metrics since Alice was decided in 2014 demonstrate that did not happen. In fact, the software industry appears to be thriving both in growth and patent applications.

According to CompTIA, after the Alice decision in 2014, the software industry witnessed a remarkable increase in job opportunities. The number of job opportunities increased over 50%—from just above two million to nearly 3.5 million openings. In 2016, the number of positions was still 2.5 million. While the number of employment openings lowered in 2016, it still remained above the pre-Alice numbers. Additionally, the Bureau of Labor statistics has predicted that software publishers would feature the highest rate of growth of real output, at 4.7% annually until 2024. The projections also placed the rate of salaried employment growth at 2.3%. Lastly, just looking at the USPTO data shows that the number of software patent applications has remained relatively consistent with all other patent categories. From the above data, it appears that Alice’s impact on the viability of software patents was lower than expected, or even non-existent.

One explanation for these results is that the software industry features a higher level of internal motivation to spur development, despite less extrinsic incentives (patent protection). An example of internal motivations is the rise of open-source software, the development strategy wherein software developers and rights owners provide the source code and licenses to modify/utilize the code for free to the public—essentially treating software as a public good. When open-source developers seek patents, they typically do so not out of desire for licensing, but rather out of defensive necessity. The process is known as defensive patenting and typically includes the issuance of non-enforcement statements, which are promises that a patentee will not sue others for infringement of the patent. Further, such software developers typically contract “patent peace provisions” that prohibit contributors to the code from attacking one another, or even the original patent holder. Overall, the example of open-source development may imply that software developers care less for the monetary benefits of patents and are therefore less impacted by the restriction Alice placed upon the art unit.

Overall, the lasting impact of Alice has yet to be seen in the four years since the decision. Even with the Court’s harshly anti-software stance, the software industry appears to be flourishing. The high level of independent motivation present in software development is one possible explanation for this resilience.

The Breaking Point on Gun Control

Written by Katherine Skipper

Image by Lorie Shaull, CC-BY 2.0 License

The response to the school shooting in Parkland, Florida, which left 17 dead, is markedly different from that of similar tragedies in recent memory. Many credit the survivors of the attack with creating a proper sense of urgency to work against having to revisit this issue as often as we do in the United States. Whatever its source, there is mounting momentum toward changing existing gun laws, leading to a fissure in Republicans’ typical resolve on the issue.

Rick Scott’s track record includes signing more pro-gun bills than any other governor in Florida’s history. Last month, he came out in support of raising the minimum age for the purchase of all firearms from 18 to 21, as well as banning bump stocks, which are devices that turn semiautomatic weapons into fully automatic ones. The state’s GOP-controlled legislature passed a historic bill on March 7th that includes these restrictions, as well as a three-day waiting period for the purchase of rifles and shotguns, and a provision that would make it easier for law enforcement to confiscate weapons from individuals who are believed to pose a threat to themselves or others. Though he disagreed with a provision that would allow some school employees to be armed, Gov. Scott applauded that the bill funds new mental health programs and signed it into law on March 9th. The bipartisan legislation imposes the first gun control measures in the state in over two decades.

While Florida has made history with these restrictions, Congress has failed to make similar progress. After the Sandy Hook Elementary School shooting in 2012, which left 26 dead, Democratic Senator Joe Manchin and Republican Senator Pat Toomey co-sponsored a bill that would expand federal criminal and mental background checks for firearm purchases. Though the bill was rejected by the Senate five years ago, the senators are considering reviving it, confident that it will have President Trump’s support. Related legislation, known as the Fix NICS bill, was drafted by Republican Senator John Cornyn and Democratic Senator Chris Murphy after a 2017 mass shooting at a church in Sutherland Springs, Texas left 26 dead. Like in Parkland, the Texas shooting was marked by a colossal failure to carry out existing policies aimed at preventing firearms from getting into the wrong hands. The Fix NICS bill attempts to address this problem by financially incentivizing state and federal agencies to report information to the National Instant Criminal Background Check System. The proposal has faced pushback from Democrats who say it doesn’t go far enough, and the President seems to agree. Trump suggests a merger of these two bills, adding that other provisions may be included to create a comprehensive piece of legislation.

While many consider his statements to be a betrayal of the President’s commitment to protect Second Amendment rights, Trump’s sense of urgency is reflective of that of his constituents. Recent polls show that Americans overwhelmingly support stricter gun laws, with 97% in favor of universal background checks for all gun purchases. What would seem like common ground has not yet translated into legislation, and Republicans’ reluctance to pass comprehensive legislation threatens to keep the number of successful gun control bills since Sandy Hook at zero. Democrats are hopeful that the current momentum following the Parkland shooting will sway their Republican colleagues in Congress, but the division among Democrats concerning the extent of firearm restrictions illustrates the need for compromise, of which there has been very little when it comes to gun control.

Despite Congress’s apparent intent to keep kicking this can down the road, there is evidence that Parkland may very well be remembered as a breaking point in the debate regarding Second Amendment rights. Hundreds of thousands are expected to participate in the March for Our Lives on March 24th. The mission statement for the event reads: “We support the right of law-abiding Americans to keep and bear arms, as set forth in the United States Constitution. But with that right comes responsibility.” Supporters of the march seek to close the loopholes in the current background check system, ban assault weapons, and prohibit high-capacity magazines. The coming weeks will determine whether the aftermath of this tragedy is different from the others, and whether our lawmakers can come together in an effort to prevent these murders from becoming the norm.

Partisan Gerrymandering

Written by Brendon Rivard

Image by Josh Graciano, CC-BY 2.0 License.

With the recent Pennsylvania Supreme Court ruling that struck down the state’s congressional districts, partisan gerrymandering has surged to the forefront of newspaper coverage. When most of us consider the partisan gerrymandering issue that faces the Supreme Court (whether or not they ultimately decide to act on the issue), we imagine Republicans or Democrats meticulously crafting lines to add or remove the couple of thousand voters that could determine the next election. It makes sense, intuitively, that the adversarial nature of elections leads to adversarial map-drawing. Indeed, most news articles on the subject treat partisan gerrymandering as such, with a focus on how to remove the partisan element from map-making with devices like independent commissions.

However—attributable to a combination of increased polarization and racial bloc voting—the mainstream media’s focus on the partisan element misses a critical component of the debate: partisan gerrymandering is functionally equivalent to racial gerrymandering in most, if not all, cases. In 2016, for instance, non-white voters coalesced to a significant degree with the Democratic Party (89% of African American voters, 66% of Latino American voters, and 65% of Asian American voters cast a ballot for the Democratic Party). Some outlets and academics have discussed the near-inseparably intertwined nature of racial and partisan gerrymandering.

The racial aspect of gerrymandering creates a significant gap between the media coverage of partisan gerrymandering as simple bare-knuckle politics and the actual legal considerations facing lawyers and lawmakers under the Equal Protection Clause and the Voting Rights Act. In particular, lawmakers must adhere to Section 2 of the Voting Rights Act, which requires non-diminishment of majority-minority districts (or, in the Act’s terms, prevents dilution of such votes). The media largely has failed to discuss the legal implications of the tension these two burdens create. On one hand, congressional requirements state that map-makers must create maps that do not dilute the vote of minority voters. On the other hand, practical political realities dictate that partisan victories lead to partisan map-making and there are real definitional boundary issues for partisan protections (such as how one factors in independents, minor parties, etc).

An informed citizenry is critical to a functioning democracy. To foster such an atmosphere, mainstream media sources must do a better job of discussing the complexities and ramifications of issues. This is particularly true in regards to partisan gerrymandering, which serves as an intersection of partisanship and race. The districts that legislatures create must ensure adequate minority representation. While there is a component of redistricting that is strictly partisan, it is, as most things, not that simple.

The Unfriendly Skies: When Emotional Support Animals Attack at 35,000 Feet

Written by Ryan Schmidt

Image by ND Strupler, CC-BY 2.0 License.

Most people are familiar with service animals and there is no denying the vital function that they provide for the people they assist. To perform this role, service animals are specially trained to assist people with disabilities, such as blindness or deafness. For this reason, service animals, usually dogs, are permitted in places other types of pets may not be, such as the main cabin of an airplane. Unlike service animals, “emotional support” animals—or animals that provide some therapeutic benefit to owners with mental disabilities—are a largely unregulated group and several recent incidents call into question how these animals should be regulated in public.

Federal law protects individuals with disabilities from discrimination and applies to airlines. “[I]n providing air transportation, an air carrier” is prohibited from discriminating against individuals with disabilities. Further, other federal regulations detail when airlines must permit passengers with disabilities to travel with service animals. However, in terms of emotional support animals, airlines are not required to accept an animal “unless the passenger provides [the airline] current documentation” listing the following: (1) their recognized mental or emotional disability, (2) the need for the animal to travel with them by air, (3) the individual providing the assessment is a licensed professional and verifies that the passenger is under his or her care, and (4) the date and state in which the license was issued.

Recently, emotional support animals have been making their way into the news for the wrong reasons. In one instance, a woman tried to bring an emotional support peacock on a United Airlines flight, but she was denied by the airline. Federal regulations permit such a denial; in fact, airlines can decline snakes, exotic animals, or other animals that might impede movement in the aisle of a plane.

However, physical safety issues involving emotional support animals are arising more frequently. The most likely cause of this increase is that “[u]nlike service animals such as guide dogs, support animals need no training.” This means an emotional support animal could be very aggressive, while service animals are specifically trained not to be disruptive. On a recent Southwest Airlines flight, a young girl was bitten by an emotional support dog while boarding the aircraft. On a Delta Air Lines flight, a dog lunged at a passenger and the resulting attack “left him with facial wounds that required twenty-eight stitches and scars that are still visible today.” Untrained emotional support animals also pose a safety risk to trained service animals who they might attack.

The major airlines have been reviewing their policies regarding emotional support animals. United began a review after recording a “75% increase in emotional-support animals on flights and ‘a significant increase in onboard incidents.’ The number of comfort animals flying on the airline jumped from 43,000 in 2016 to 76,000 last year, according to Charlie Hobart, a United spokesman.” A similar situation can be observed with its competitor Delta, which “flew 250,000 animals in those categories last year, an increase of 150% from 2015, while ‘incidents’ such as biting or defecating had nearly doubled since 2016.” Even though the United States Department of Transportation “does not collect data on the number of service and support animals on flights . . . disability-related complaints that it tracks related to service animals nearly quadrupled between 2012 and 2016.”

The motivation for some passengers to exploit the system and have their household pets qualify as emotional support animals is largely financial: “Airlines charge up to $125 each way to carry a small pet in the cabin. There is no charge for service and support animals.” Furthermore, an ABC News investigation revealed the ease with which people can obtain the necessary documentation. One person interviewed, who now admits she no longer claims her pet as an emotional support animal, initially “found a website that provided a psychological evaluation for free, all she had to do was fill out a questionnaire.” After providing false answers on the questionnaire, she “received the special letter she needed to show she was permitted to have an emotional support animal” and thus, her animal could travel with her, free of charge. Perhaps unsurprisingly, research on the impact emotional support animals actually have on their owners is inconclusive at best.

For airlines and their passengers, change is underway. Beginning on March 1, 2018, both Delta and United will require passengers attempting to fly with emotional support animals to “provide the airlines with documents certifying that their animal is properly trained to behave in public and forms detailing their animal’s health and vaccination records, in addition to signed letters from a licensed doctor or mental health professional.” As Paul Mundell of Canine Companions correctly points out, “[P]eople who fake their need for an emotional support animal should be ashamed.” However, personal guilt should not be the only barrier preventing passengers from exploiting the system. While the Department of Transportation failed to issue guidance on emotional support animals by July 2017—a congressionally issued deadline—it is now expected to do so by July 2018. Hopefully, new guidance will ensure the friendly skies remain friendly—and safe.

America’s Failure to Recognize the Right to Health: A Global Comparison

Written by Tushar Parashar

Image by Joe Brusky, CC-BY 2.0 License.

The United States remains one of the only countries to not recognize the right to healthcare. As an example, 166 countries have ratified the International Covenant on Economic, Social, and Cultural Rights, which provides that the “States Parties . . . recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Additionally, the UN Committee on Economic, Social and Cultural Rights states, “health is a fundamental right indispensable for the exercise of other human rights.” As a country that regularly chastises other rogue nations’ human rights violations, America’s silence on the fundamental human right of healthcare is baffling.

American exceptionalism on the issue of healthcare sharply divides the country: some clamor for more healthcare entitlements, while others claim the government has no place in providing healthcare. One argument advanced by those opposing government sponsored healthcare is that the U.S. Constitution does not mention an individual right to health. This blog post explores this argument using examples from other parts of the world.

Many constitutions explicitly recognize the right to healthcare. In South Africa, citizens have a right to have access to healthcare services, including reproductive healthcare. In Colombia, the State is responsible for organizing, directing, and regulating the delivery of health services. Further, there are countries that recognize the right to health even though their Constitution is silent on such a right. For example, the Indian Constitution is silent on the individual right to health. Instead, the Constitution proclaims a right to life and personal liberty. Yet, the Indian government provides free health care to its citizens and the Supreme Court of India has ruled that “failure on the part of a [g]overnment hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life.” Therefore, India recognizes the “right to health” as an extension of a explicitly mentioned “right to life” in its Constitution. In a landmark ruling, the Indian Supreme Court found constitutional violations when hospitals denied admission to a sick patient due to a lack of availability of beds.

It is true that the U.S. Constitution doesn’t mention a right to health, but it also doesn’t mention the right to privacy. Yet, the Supreme Court has established rich jurisprudence built on the individual right to privacy. The Court could have taken a similar route on the issue of healthcare. For example, the lack of adequate healthcare can lead to the deprivation of life and liberty, which is a Fourteenth Amendment violation; however, constitutional jurisprudence in America has shied away from any such interpretation. Instead, Americans continue to pay for their healthcare and suffer from the consequences—more than 50% of  the bankruptcies in U.S. are a result of medical expenses.

Interview with Karen Daniel: Wrongfully Convicted Client Now Faces Deportation

Written by Jennifer Lee

Prof. Karen Daniel

In December 2017, the Center on Wrongful Convictions (CWC)’s client Gabriel Solache was exonerated of murder charges that kept him behind bars for nearly twenty years—but relief was short-lived. Without missing a beat, Immigration and Customs Enforcement (ICE) officials took Mr. Solache into custody, where he now faces deportation to his native Mexico. Northwestern University Law Review sat down with the CWC’s Karen Daniel, Solache’s attorney, to discuss his exoneration, the involvement of now-discredited former Chicago police detective Reynaldo Guevara, and Mr. Solache’s upcoming immigration proceedings.

NULRO: How did the Center on Wrongful Convictions first get involved in Mr. Solache’s case?

KD: Mr. Solache was sentenced to death in 2000. While his case was on direct appeal, the Office of the State Appellate Defender’s Supreme Court Unit contacted our office to see if we would be willing to take on his case for a post-conviction investigation of his claims. We did. The lead attorney on the case was my late colleague Jane Raley. Mr. Solache filed his post-conviction petition in 2003, which was thrown out three months later by the judge. Jane worked on the appeal and was successful in 2006 (People v. Reyes (Ill. App. Ct. 2006)). That’s when I got on the case and stayed on it.

NULRO: Did the prosecution have any physical evidence linking Mr. Solache to any of the charges?

KD: No. There were three defendants: Mr. Solache, Arturo Reyes, and a woman named Adriana Meija. They were all immigrants, they lived in the same house, and they knew each other. The victims were a married couple who were murdered in their apartment, and their two children—a three-year-old and a baby—were kidnapped. Adriana Meija had told everyone that she was pregnant, and that she was going to the hospital to have a baby. When she came home, she had a baby and a three-year-old child. But the crime was being reported on the news, and the people in the home recognized the three-year-old child as the child who had been kidnapped. When Mr. Solache, Mr. Reyes, and Adriana Meija’s husband took the child to the police station, they became the suspects.

Adriana Meija’s DNA was found at the crime scene and one of the victims’ DNA was found on her clothing, but the two male defendants were not linked.

NULRO: What ultimately led to Mr. Solache’s charges being dismissed?

KD: Mr. Solache was convicted completely and solely on the basis of a confession written in English that he signed. It was handwritten by an Assistant State’s Attorney, in English. Mr. Solache did not at that time speak or read English.

When Mr. Solache went to the police station and became a suspect, Detective Reynaldo Guevara interrogated him alone. Mr. Solache said that Guevara beat him until he agreed to confess. Then the detective took Mr. Solache to an Assistant State’s Attorney for questioning, but she only spoke English. The detective was bilingual. Although the detective was supposedly translating, Mr. Solache said that Guevara was instead telling him what to say and to sign this paper, which he couldn’t read. That was the basis of the conviction.

What we had been learning around the time Mr. Solache’s case came to our attention was that Detective Guevara was being accused of all different kinds of serial misconduct, from beating suspects to falsifying evidence. To substantiate Mr. Solache’s claims, we set about putting together a dossier on the detective. We pulled together people who had claims against him, interviewing them or getting affidavits. We put all of that in our petition and argued that the question of the admissibility of Mr. Solache’s confession needed to be relitigated in light of this new information we had about Detective Guevara.

Ultimately, after many years of persuading different judges and courts, the final judge found that our evidence was credible and suppressed the confession, and the prosecutors dismissed the charges because there was nothing left.

NULRO: How did you find out about the deportation proceedings? Were you surprised by them?

KD: I wasn’t surprised. It had always been an issue in Mr. Solache’s case. It was listed in all the documents in the case that he was undocumented. As we got toward the end, I checked with the prison and knew an immigration detainer was lodged against him. We hoped that he could avoid being taken straight to ICE detention because of the Illinois Trust Act, which says that law enforcement officials, including places of detention, are prohibited from holding a person only on an immigration detainer. But ultimately it didn’t help. When Mr. Solache’s convictions were dismissed, I went to the Illinois Department of Corrections hoping he would be released, but he went straight into ICE custody inside the prison. He never stepped outside. I was there for quite a while, and they told me that he had left in an ICE van that had come and left through the back.

NULRO: How did law students contribute to your case?

KD: The very first students went to community meetings to get information about different victims of Detective Guevara. They interviewed possible victims, got statements, did research, organized our massive files. Later students helped write the first petition, the appeal, the second petition, and all sorts of pleadings. At the post-conviction hearing, students put on witnesses and one student put on Mr. Solache. Many other lawyers have copied the work we put together and filed it in similar lawsuits for other victims of Detective Guevara, so there have been a number of men who have been released from prison recently based on the work our students did and what Jane Raley did.

A Good Bet? Legalized Sports Gambling May Be Coming Soon

Written by Brendan Mochoruk

Sports-booking in Vegas. Image by Prayitno, CC-BY 2.0 License.

On December 4, 2017, the Supreme Court heard oral argument in Christie v. National Collegiate Athletic Association, a case in which the State of New Jersey is challenging the constitutionality of the Professional and Amateur Sports Protection Act (PASPA). Passed by Congress in 1992, PASPA banned all state-sanctioned sports gambling, but provided exemptions for four states—Nevada, Oregon, Delaware, and Montana—where laws allowing certain types of sports gambling were already on the books. PASPA also contained a provision that would have allowed New Jersey to permit sports gambling in casinos if the state were to enact a sports gambling scheme within one year of PASPA’s passing, which New Jersey did not do.

In 2012, New Jersey had a change of heart and passed a bill that would actively allow certain sports betting activities in casinos and horseracing tracks, but a district court struck down the law as a violation of PASPA. New Jersey responded by passing another law in 2014 which repealed existing bans on sports betting in the state, effectively authorizing sports gambling in New Jersey without explicitly doing so. The National Collegiate Athletic Association (NCAA), along with the National Basketball Association (NBA), National Football League (NFL), Major League Baseball (MLB), and the National Hockey League (NHL), sued to enjoin New Jersey from implementing the law on the grounds that it is a violation of PASPA. The district court granted summary judgment to the sports leagues, and a divided panel of the Third Circuit upheld the decision. In an en banc rehearing, the Third Circuit again upheld the decision.

New Jersey argues that PASPA is an unconstitutional violation of the Tenth Amendment’s anti-commandeering doctrine, which prohibits the federal government from requiring states to adopt a specific regulatory scheme if the federal government itself has not done so. New Jersey argues that by requiring states to adopt regulatory schemes banning sports betting, PASPA violates this principle. The sports leagues, on the other hand, argue that PASPA does not require states to adopt any particular regulatory framework, but instead only prohibits states from legalizing or sanctioning sports betting. As such, the leagues claim that PASPA does not require states to take any affirmative action, and that the law therefore does not commandeer the states’ legislatures.

According to some commentators, if the oral arguments are any indication of how the Court will eventually rule, the Court may be prepared to find in favor of New Jersey. But overturning PASPA could have wide-ranging implications. Estimates suggest that illegal sports betting is a $80 to $400 billion industry—overturning PASPA and allowing state governments to legalize the industry could produce significant revenues for states. However, gambling revenues often come disproportionately from low-income individuals, so these tax revenues would likely be regressive in nature. Furthermore, some worry that legalized sports betting would increase the incidence of match-fixing. More importantly, however, a broad ruling in favor of New Jersey could have important ramifications for a host of other issues related to state and federal sovereignty, including marijuana legalization, immigration, and gun control, signaling more deference to state sovereignty. The Supreme Court is expected to rule on the case by summer 2018.