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.

Drones, Airspace, & Private Property Rights

Written by Jimmy Montelongo

Image by Peter Linehan, CC-BY 2.0 License.

When it comes to flying drones, the issue of property rights to low-altitude airspace above privately owned property is murky. Some claim that a property owners’ rights generally extend up about 500 feet, which gives them the right to prevent drones from flying or hovering over their land.  Others argue that drones represent an important technological innovation, and decisions about where and when they can fly should be made collectively, not by landowners through tort law.

The courts have taken very few stabs at clarifying this issue, at least for altitudes below 500 feet. However, the uncertainties surrounding the property rights to this airspace (above privately owned property) have not deterred the FAA or state and local officials from sprinting to regulate the burgeoning drone industry. This blog post argues that any current and future drone regulation must preserve the sanctity of private property rights.

Some commentators have argued that since drones represent the next frontier in aviation, regulations should open the airspace above private property up to drone flight, in the name of technological advancement. They argue that if the FAA had prohibited airplanes from flying over personal property, society would have lost out on a major mode of transportation. But airplanes and drones fly at very different altitudes, with drones possessing the ability to hover as low as the blades of grass on one’s lawn. This begs the question of where a property owner’s rights to be secure in her property fit into the equation.

Others argue that drones do not have, and should not be given, a legal right to fly over private property in defiance of the wishes of the landowner. This argument is more persuasive because drone flight in low-altitude airspace above private property implicates the same policy considerations for excluding other forms of trespass; chiefly among those is that a property owner has the right to the private enjoyment of her land without unreasonable interference. Drones arguably obstruct a property owner’s visual enjoyment of her property and take up physical space, which could interfere with the ways in which the property owner desires to use her land.

Additionally, people have the right to be secure in their homes; as the often-quoted phrase goes: a person’s home is her castle. Drone flight above private property could potentially undermine this value. Drones are equipped with cameras and other surveillance devices, which easily enable a drone operator to peer through windows on buildings and spy on intimate events. For example, in 2014 a drone operator was arrested for video recording through the outside windows of exam rooms in a hospital.

Furthermore, a property owner’s desire to preserve her privacy can also provoke her to make rash decisions in the name of self-defense, which presents safety risks to herself and others. This is precisely what happened in 2015 when William Meredith, a Kentucky man, shot down a drone hovering over his property. Although there are conflicting accounts of how the event transpired, Meredith claims the drone operator was spying on his family. He alleged that the drone operator hovered the device over Meredith’s property and below the tree line three separate times in a single day. Upon the drone’s third flyover, Meredith felt harassed and feared for his family’s privacy interest. Meredith then used a gun to shoot the drone out of the sky. The police were called, and Meredith was charged with wanton endangerment for firing a gun within city limits.  The county district court judge ultimately dismissed these charges, however, agreeing with Meredith that he had the right to defend his property. Even though no serious damage resulted from these events (well, besides the bullet-riddled drone), this case highlights the potential risk we would create if the FAA were to allow drones to fly over personal property.

Ultimately, drone regulation must protect private property rights to ensure the privacy and safety of property owners.

Collins v. Virginia: Where Categorical Rules Collide

Written by John Leon

Image by Charlie, CC-BY 2.0 License.

In Collins v. Virginia, the Supreme Court will decide what happens when two nearly categorical rules come into conflict: the ability of law enforcement to search your automobile based on probable cause alone, and the right to be free from searches of your home and its curtilage absent a warrant. The issue before the Court is whether the automobile exception to the warrant requirement applies to a vehicle that is parked on the curtilage of the home. Curtilage is the area “immediately surrounding a dwelling-house,” such as the front porch and driveway. For the purposes of the Fourth Amendment, the Court has described this area as “enjoy[ing] protection as part of the home itself.”

The “automobile exception” to the warrant requirement is an exception dating back to 1925. Under this exception, law enforcement may search your car, without a warrant, based on probable cause alone. In Carroll v. United States (1925), the Court justified this exception by pointing to the inherent mobility of automobiles. Because an automobile may be “quickly moved” by the time law enforcement retrieves a warrant, no warrant is necessary. In South Dakota v. Opperman (1976), the Court further justified this exception by describing the reduced expectation of privacy afforded to automobiles. The Court reasoned that because automobiles are subject to “pervasive and continuous regulation”—such as periodic inspection, licensing requirements, and police stops—people do not expect as much privacy in their automobiles.

While the Court has routinely upheld these justifications, applying the automobile exception to even motor homes, the protections afforded to the home and its curtilage have equally strong jurisprudential standing. To date, the Court has always required a warrant to search the home and its curtilage with only a “few specifically established and well-delineated exceptions.” These include pursuing a fleeing criminal, preventing destruction of evidence, and preventing imminent danger to others. The automobile exception does not fit neatly into any of these categories. Thus, two nearly categorical rules collide.

If the Court decides to apply the automobile exception to curtilage, it may signal an erosion of fundamental Fourth Amendment protection to the home in favor of effective law enforcement. Because the home and curtilage are interchangeable for Fourth Amendment purposes, law enforcement could theoretically search an automobile even inside the home itself. If the Court decides not to apply the exception, some may view it as an erroneous obstacle to effective policing. It might seem arbitrary that police can search a vehicle parked on the curb, but not one parked mere feet away on the driveway.

Whichever way the Court decides, Collins v. Virginia will have important implications for the Fourth Amendment balance between effective law enforcement and privacy.

Jennings v. Rodriguez: Supreme Court to Decide Immigrants’ Right to Due Process in Detention

Written by Grace Kim

In 2003, Errol Barrington Scarlett, a long-time permanent resident from Jamaica who had been living in the United States for over thirty years with U.S. citizen children and grandchildren, was taken into custody by the Department of Justice. Scarlett was previously convicted of drug possession in 1999, but a year and a half after his release, during which he did not commit additional crimes, the DOJ summarily detained him without a bond hearing. He spent the next five and a half years in mandatory detention awaiting removal proceedings. Scarlett’s situation is not unique. His case is just one example of immigrants who are locked up in detention for years without receiving a hearing to determine whether the detention is justified. Recently, the Supreme Court was asked to weigh in on whether noncitizens subject to long-term detention are entitled to individualized bond hearings.

On October 3, 2017, the Supreme Court heard oral arguments for the second time in Jennings v. Rodriguez (2016), a class action suit brought by noncitizens who argued that prolonged detention pursuant to 8 U.S.C. §§ 1225(b), § 1226(a), 1226(c), and 1231(a) without hearings to justify their detention violated their due process rights. The first time the case reached the Court, an evenly-split eight-member bench did not reach a decision. This time, the Supreme Court is reviewing the Ninth Circuit’s affirmation of the district court’s ruling that noncitizens who are subject to prolonged detention must be afforded periodic bond reviews at six-month intervals to determine whether the government has a legitimate interest in continuing their detention.

Defendants-Petitioners’ Argument

At oral argument, the Government relied heavily on Demore v. Kim (2003), where the Supreme Court held that immigrants who are detained during removal proceedings have no constitutional right to a bond hearing. When the Justices raised due process concerns and asked about forms of monitoring and supervision other than detention, the attorney for the Government pointed to the Demore Court’s statement that “when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.” The Government’s lawyer stressed that noncitizens do not have a “constitutional right to be released into [the] country” and that long-term detention is not unconstitutional as long as the reasons for prolonging the detention are related to its original purpose. As such, delays that result from years of backlogs are not unconstitutional.

Plaintiffs-Respondents’ Argument

On the other hand, respondents distinguished Demore on several grounds. Most importantly, the detention time of the certified class members in Jennings is “eight or ten times” those in Demore. Moreover, unlike the detainee in Demore who was seeking withholding of removal, the class members in Jennings are seeking cancellation of removal, a stronger form of asylum protection. The respondents also relied on Zadvydas v. Davis (2001), a Supreme Court case which held that once an immigrant is found removable, the statute, “read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.”

As for the periodic six-month review rule, the respondents reminded the Justices that the Zadvydas Court found “Congress previously doubted the constitutionality of detention for more than six months.” The respondents further supported the bright-line rule by stressing that the Court has never previously authorized detention without a review beyond six months and that a line has to be drawn somewhere for administrative purposes.

Overall, the Justices seemed sympathetic to the respondents’ argument that prolonged detention without a right to a hearing is unconstitutional. The bright-line six-month rule received more pushback, especially from Chief Justice Roberts and Justice Alito, who questioned the constitutional support for the approach. But the fate of Jennings v. Rodriguez remains uncertain, especially now that another tied vote is possible: Justice Kagan has recused herself because she worked on the case in its earlier phase when she was Solicitor General.

Corpus Linguistics Impacts Founding Era Meaning

Written by Thomas Leahy

Modern lawyers are required to keep up with emerging legal technologies in order to stay competitive and adequately serve their clients, but recent technological innovations have also begun impacting traditionally analogue fields, like originalist constitutional interpretation. Originalist scholarship that focuses on the “original public meaning” of a constitutional or statutory term has often been criticized for the inherent uncertainty or impracticability that comes with trying to ascertain the meaning of a word as it was used centuries in the past. In response to this criticism, originalist legal scholars have sought more empirical ways of determining original public meaning, including some scholars who have begun advocating for a methodology driven by “corpus linguistics.”

The burgeoning field of corpus linguistics in legal scholarship encompasses a variety of methodologies which use data and technology to find the original meaning of a constitutional or statutory term or phrase; application of the methodology is made possible through the increasing digitization of historical documents and continual advances in data analytics. To find the original public meaning of a term using corpus linguistics, a scholar will undertake a keyword-coded search of a “corpus” (a vast body of text or other dataset) which contains compiled texts from the relevant time period. Depending on their search terms, a researcher interested in the original meaning of a term may code their search of a dataset to return, for example, their chosen term as a “key word in context” (showing the search term in the context of its usage) or may look for “collocates” (words used in proximity with their term-of-interest). These types of searches aim to allow a legal scholar to quickly, and empirically, determine how a word was used during a particular time period.

Research institutions have already compiled various datasets for this purpose, and some of them are easily accessible to the public. For example, Brigham Young University has assembled a “Corpus of Historical American English” including over 400 million words and allows users to break down results by decade, placement relative to other words, and to show words in context. BYU is also currently developing a Corpus of Founding Era American English, which would be an enormous research asset for original public meaning originalists.

Recent examples of this type of empirical analysis have explored the original public meaning of Constitutional terms like “commerce,” “emolument,” and “officers of the United States.” While corpus linguistics may be garnering significant attention in some branches of originalist academia, the judiciary has not yet substantially engaged with the scholarship on this issue. There is some indication, however, that corpus linguistics methodology can be persuasive to the courts. For example, in Justice Thomas’s dissenting opinion in Gonzales v. Raich (2005), he cited to Professor Randy Barnett’s corpus linguistics driven investigation into the original public meaning of the word “commerce” (as it was used in the Commerce Clause) to support his interpretation of the word. In State v. Rasabout (Utah 2015), Justice Lee of the the Utah Supreme Court wrote an extensive concurring opinion in which he argued that corpus linguistics methodology should be used to determine the meaning of the word  “discharge” in the context of an ambiguous firearm-related statute. Justice Lee is a strong advocate for the use of corpus linguistics, and his opinion serves as a persuasive response to critics of the methodology.

While a few other courts have also considered evidence derived from corpus linguistics methodologies while analyzing original meaning, the field is still developing, and it is likely that the practice will receive significant future attention. Its current status serves as a reminder that as technology develops, the way we practice law, and even interpret the Constitution, may need to change as well.