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Vol. 54, No. 2 2021

SCHOOL OF LAW CREIGHTON UNIVERSITY OMAHA, NEBRASKA BOARD OF EDITORS

HALLIE A. HAMILTON Editor-in-Chief

CHRISTOPHER GREENE SAPPHIRE ANDERSEN Senior Executive Editor Research Editor

CALLIE A. KANTHACK SARAH MIELKE Senior Lead Articles Editor Executive Editor

THOMAS R. NORVELL DEANNA M. MATHEWS Executive Editor Executive Editor

ERIC M. HAGEN BEAU R. MORGAN JUSTICE A. SIMANEK Student Articles Editor Student Articles Editor Student Articles Editor

EDITORIAL STAFF DANIEL J. MCDOWELL

ASSOCIATE STAFF RILEY E. ARNOLD NICHOLAS BANELLI KIMBERLY DUGGAN JACQUELIN FARQUHAR NATALIE C. KOZEL ROBERT NORTON ROBERT J. TOTH JR.KAITLYN WESTHOFF

GENERAL STAFF KRYSTA APPLEGATE-HAMPTON DON HARSH FRANKIE HASS ADDISON C. MCCAULEY NICKOLAS SACHAU LAURA STEELE

FACULTY ADVISOR CAROL C. KNOEPFLER DANIEL L. REAL

BUSINESS MANAGER DIANE KRILEY SPECIAL TRIBUTE

A TRIBUTE TO PROFESSOR KEN MELILLI .... Patrick J. Borchers i.

ARTICLES

MEDICAL PAROLE-RELATED PETITIONS IN U.S. COURTS: SUPPORT FOR REFORMING COMPASSIONATE RELEASE ...... Dr. Sarah L. Cooper 173 & Cory Bernard

FEDERAL-STATE PROGRAMS AND STATE— OR IS IT FEDERAL?—ACTION ...... Michael E. Rosman 203

FOURTH AMENDMENT CONSENT SEARCHES AND THE DUTY OF FURTHER INQUIRY ...... Norman Hobbie Jr. 227

CATHOLIC SOCIAL TEACHING AND THE ROLE OF THE PROSECUTOR ...... Zachary B. Pohlman 269

EXTRALEGAL INFLUENCES ON JUROR DECISION MAKING IN SUITS AGAINST FIREARM MANUFACTURERS ...... Nathan D. Harp 297

NOTES

“WHAT IS A “REASON TO BELIEVE”? EXECUTION OF AN ARREST WARRANT AT A SUSPECT’S RESIDENCE SHOULD REQUIRE PROBABLE CAUSE ...... Robert Norton 323 The CREIGHTON LAW REVIEW (ISSN 0011—1155) is published four times a year in December, March, June and September by the students of the Creighton University School of Law, 2133 California St., Omaha, NE 68178. Subscription prices are $30.00 per annum. Past issues are available from William S. Hein & Co., Inc., 2350 North Forest Road, Getzville, N.Y. 14068 and through HeinOnline. Microfilm editions are available from NA Publishing Inc., P.O. Box 998, Ann Arbor, MI 48106-0998. POSTMASTER: Send address changes to: Creighton Law Review School of Law 2133 California Street Omaha, Nebraska 68178 (402) 280-2815 Publication office: Joe Christensen, Inc., 1540 Adams Street, Lincoln, Nebraska 68521 Periodicals postage paid at Omaha, Nebraska and additional mailing office at Lincoln, Nebraska

ADMINISTRATIVE OFFICERS

DANIEL S. HENDRICKSON S.J., B.A., M.A., M.DIV., PH.D...... President MARDELL WILSON, B.S., M.S., ED.D...... Provost JAN D. MADSEN, B.S.B.A., C.P.A...... Executive Vice President of Operations EILEEN C. BURKE-SULLIVAN, M.S., S.T.D...... Vice President for University Mission and Ministry HEIDI W. GRUNKEYMEYER, B.A...... Vice President for University Communications and Marketing MARY E. CHASE, M.S., ED.D...... Vice Provost for Enrollment Management RENE L. PADILLA, PH.D...... Vice Provost for Global Engagement TRICIA A. BRUNDO SHARRAR, J.D...... Vice Provost for Academic Administration and Operations CATHERINE M. TODERO, PH.D., R.N., FAAN. . . . Vice Provost for Health Sciences Campuses CHRISTOPHER M. WHITT, PH.D...... Vice Provost for Institutional Diversity and Inclusion TANYA A. WINEGARD, PH.D...... Vice Provost for Student Life JAMES S. JANSEN, B.S., J.D...... General Counsel

JOSHUA P. FERSHEE, B.A., J.D., Dean and Professor of Law CRAIG W. DALLON, B.A., J.D., Associate Dean for Academic Affairs RICK MCFAYDEN, A.B., M.S., J.D., Associate Dean for Student Affairs and Administration BARBARAKAYE WRIGHT, B.A., J.D., Assistant Dean for Admissions MANDY WHIDDON, B.A., J.D., Assistant Dean for Career Development CHRIS BAUER, B.A., M.S., Director of Development KELLY K. DINEEN, R.N., J.D., PH.D., Director of Health Law Programs RACHEL J. GOEDKEN, B.S., M.S., J.D., Director of the Werner Institute TROY C. JOHNSON, B.S., J.D., M.L.S., Interim Director of the Law Library CAROL C. KNOEPFLER, B.A., J.D., Director of Legal Research & Writing DAVID MADSEN, B.S., Director of Finance DIANE UCHIMIYA, B.A., J.D., Director of the Abrahams Legal Clinic

FACULTY

TERRY M. ANDERSON, B.A., J.D., LL.M., Professor of Law EDWARD J. BIRMINGHAM, B.S., J.D., LL.M., Professor of Law PATRICK J. BORCHERS, B.S., J.D., Lillis Family Professor of Law CATHERINE M. BROOKS, B.A., M.A., J.D., Professor of Law KRISTIN A. COTE´ , B.A., M.A., J.D., Assistant Professor of Law CRAIG W. DALLON, B.A., J.D., Professor of Law KELLY K. DINEEN, R.N., J.D., PH.D., Associate Professor of Law KENDRA HUARD FERSHEE, B.A., J.D., Professor of Law IRINA FOX, B.A., J.D., Professor of Law RACHEL J. GOEDKEN, B.S., M.S., J.D., Assistant Professor of Law VICTORIA J. HANEMAN, B.A., J.D., LL.M., Associate Professor of Law and Frank J. Kellegher Professor of Trusts and Estates MICHAEL J. KELLY, B.A., J.D., LL.M, Professor of Law and Senator Allen A. Sekt Endowed Chair in Law CAROL C. KNOEPFLER, B.A., J.D., Assistant Professor of Law RANETA J. MACK, B.A., J.D., Skinner Family Endowed Professor of Law R. COLLIN MANGRUM, B.A., J.D., B.C.L., S.J.D., A. A., Professor of Law & Ethel Yossem Endowed Chair in Legal Ethics PAUL E. MCGREAL, B.A., J.D., LL.M., Professor of Law EDWARD A. MORSE, B.S.B.A., J.D., Professor of Law and McGrath, North, Mullin & Kratz Endowed Chair in Business Law KENT J. NEUMEISTER, B.A., J.D., LL.M., Professor of Law DANIEL L. REAL, B.S.B.A., J.D., Assistant Professor of Law STEPHEN C. SIEBERSON, B.A., M.A., J.D., PH.D., Professor of Law LARRY L. TEPLY, B.A., J.D., LL.M., Professor of Law DIANE UCHIMIYA, B.A., J.D., Assistant Professor of Law and Connie Kearney Endowed Chair in Clinical Legal Education SEAN M. WATTS, B.A., J.D., LL.M., Professor of Law and James L. Koley Professorship in Constitutional Law DAVID P. WEBER, B.A., J.D., Professor of Law MICHAELA M. WHITE, B.A., J.D., Professor of Law

LECTURERS

PATRICK J. BARRETT, B.A., J.D. DONALD W. KLEINE, B.A., J.D. GARY R. BATENHORST, B.S.B.A., J.D. ADAM B. KUENNING, B.S., J.D. BRENDA D. BEADLE, B.S., J.D. DOUGLAS J. LAW, B.S., J.D. TRUDY BREDTHAUER, B.A., J.D. ANN C. MANGIAMELI, B.S., J.D. HON. BRIAN C. BUESCHER, B.A., J.D. KATIE MARTENS, B.A., J.D. ZACHARY BURT, B.A., J.D. JAMES O’CONNOR, B.A., J.D. CRAIG S. CLAWSON, B.S.B.A., J.D. HON. PATRICK R. RUNGE, B.S., J.D. HON. VERNON C. R. DANIELS, B.A., M.A., SHAWNTAL M. SMITH, B.A., J.D. J.D. ANTHONY J. SORRENTINO, B.S.B.A., J.D. TERRANCE S. DEWALD, B.S.B.A., J.D. ROBERT STARK, B.S.B.A., J.D. DANIEL DITTMAN, J.D. SEAN P. SUITER, B.A., B.S., J.D. JOEL HATCH, B.A., J.D. SHANE R. THIELEN, B.S., J.D. JOHN P. HEIL, B.A., J.D. JEFFREY L. THOMAS, B.A., J.D., LL.M. MALLORY HENNINGER, B.A., PHARMD., J.D. THOMAS (MICK) WAGONER, B.A., J.D. KELLI HUSER, B.S., B.A., J.D. SHERMAN P. WILLIS, B.A., J.D. NISSA JONES, B.S., J.D. MARY L. WILSON, B.A., J.D.

LAW SCHOOL ADVISORY BOARD HON. JOSEPH BATAILLON WILLIAM HARGENS HON. ROBERT ROSSITER, JR. HON. FRED BATES LISA ANDRUS HAYAN STEVE SELINE ROGER BLAUWET CYNTHIA IRMER JAMES SILHASEK PATRICK COOPER THOMAS MCCORMACK DIANNE LOENNIG STODDARD SCOTT DOSEK RAYMOND MCGAUGH MARY VANDERNACK RAYMOND FEHRINGER NEVEN MULHOLLAND MICHAEL WALLACE THOMAS GAUGHEN MICHAEL MULLIN GAIL WERNER-ROBERTSON RICHARD GILLOON MAUREEN O’CONNOR HON. HORATIO WHEELOCK THOMAS GRENNAN Y. KAMAAL PATTERSON PATRICIA ZIEG LISA ANDRUS HAYAN JUDITH TWIDWELL POGGE A TRIBUTE TO PROFESSOR KEN MELILLI

PROFESSOR PATRICK J. BORCHERS†

When the Editors of this Review asked me to write a tribute to recently retired Creighton Law Professor Kenneth Melilli—or Ken as he asked to be called—I found myself a bit stumped. He and I have known each other for over thirty years, so it’s tempting to write something about our personal friendship, but that wouldn’t really be a tribute. So let me start here: Ken is the best teacher (of anything) that I’ve ever known. Of course, there were many other aspects to his career. He produced a great deal of scholarship, much of it a great deal of utility to practicing lawyers, particularly his multistep process for cross-examining and impeaching witnesses with prior statements. He was a great colleague as he could brilliantly take complex problems apart piece by piece and simplify them. He graduated from New York University Law School. He practiced briefly with a big New York City law firm, but then accepted a clerkship with a well-regarded U.S. District Court judge. From there he went on to become a federal prosecutor in Washington, D.C., and then took a similar job in Vermont. He prosecuted everything from shoplifting to the most serious felonies. When he decided to pursue a job as a law professor he landed at Albany Law School, in Albany, N.Y. As fate would have it, I landed at the same school a few years later. We quickly became friends and I looked up to him. He engendered a great deal of respect and fondness from students, but without in any way pandering to them. Because I had some trial experience, he asked me to co-coach competition trial teams with him. I quickly learned that I had a lot to learn about trying cases and teaching students how to try cases. Be- cause of what I learned from him, I was able to produce trial teams that were almost as good as his. It was a source of some amusement that several years in a row each of our teams advanced to the elimination round of a competition and my team had the higher seed, but his would win the competition. Then in a prestigious invitation-only criminal trial competition in Chicago, he literally made headlines when his Albany team defeated Harvard for the national championship.

† Lillis Family Distinguished Professor of Law, Creighton University. Trial skills were only the tip of the iceberg when it came to education, however. He was a demanding and caring instructor in the classroom. If a student really wanted to learn, Ken would spend as much time as necessary for the student to learn. If a student just wanted to know what would be on the exam that made for a short meeting. He seemingly won the teaching award every year at Albany. He was the advisor to the Moot Court Board. He taught more classes and students than anyone in the building. When I left Albany in 1999 to become Dean of the Creighton Law School, I figured the one surefire thing I could do to improve the already excellent education offered by the school was to recruit Ken. So I asked him to visit for a year, but I told him that we needed someone to teach Torts, a subject he hadn’t taught before. He said: “That’s OK, crimes without prison time, right?” So he came and he stayed twenty years and kept right on doing what he’d always done: brilliantly teaching vast numbers of students, producing championship trial teams, winning teaching awards—including Creighton’s university-wide teaching award named for Robert F. Kennedy—pushing students to succeed, and working tirelessly to make Creighton Law School an even-better learning environment. Then, in the spring of 2020, he retired without fanfare, which is how he wanted it. He never was comfortable receiving public recognition, and so it is with his retirement—save perhaps this tribute. We miss you Ken. 173

MEDICAL PAROLE-RELATED PETITIONS IN U.S. COURTS: SUPPORT FOR REFORMING COMPASSIONATE RELEASE

DR. SARAH L. COOPER† & CORY BERNARD‡

I. PRISONER HEALTH(CARE), COMPASSIONATE RELEASE, AND PAROLE ...... 176 II. STUDY RATIONALE AND DESIGN ...... 179 III. RESEARCH FINDINGS ...... 181 A. ISSUES RAISED IN MEDICAL PAROLE-RELATED PETITIONS ...... 181 B. RESOLUTION OF PETITIONS AND MAPPING TO EXISTING CONCERNS ABOUT COMPASSIONATE RELEASE ...... 182 1. Eligibility and Exclusions ...... 182 2. Releasing Authorities ...... 187 3. Processes ...... 191 4. Support for Petitioners ...... 193 IV. CONCLUSION ...... 198

Compassionate release procedures typically allow prisoners to seek early release because of serious terminal, non-terminal, and/or age-related health issues.1 In addition to a federal procedure,2 nearly

† Reader in Law at Birmingham City University, UK. This Article was informed by a research project undertaken with the support of a Leverhulme Trust and British Academy Small Research Grant. Many thanks, in particular, to colleagues and students at Arizona State University, Pace University, and Birmingham City University for their time and efforts in discussing this topic with me. Special thanks to panelists and participants who attended Compassionate Release of Prisoners with Health Problems Across the United States—an event held at Arizona State University in No- vember 2018 to discuss the funded project—for their feedback and observations. Cory Bernard has provided excellent research assistance and co-authorship. ‡ Managing Editor, Arizona State Law Journal; J.D., Sandra Day O’Connor Col- lege of Law, Arizona State University (2021); B.A., University of Notre Dame (2013), 1. See generally Sarah L. Cooper, State Compassionate Release Approaches in the USA: A Blueprint for Discussion (unpublished, on file with author). Note this report provides a provisional analysis of a 2017-2018 study—undertaken by researchers at Birmingham City University (supported by the Arizona Justice Project and Sandra Day O’Connor College of Law’s Post-conviction Clinic) and funded by a Leverhulme Trust and British Academy Small Research Grant—to identify and unpack compassionate release procedures across the United States. It aimed to learn from, and build on, the methodological approaches, findings, and recommendations of existing literature. The report acts as a foundation from which specific issues—such as those in this Article— can be further examined. 174 CREIGHTON LAW REVIEW [Vol. 54 every U.S. state has at least one compassionate release procedure.3 Across U.S. states, parole emerges as the most common method of compassionate release,4 often labeled “medical parole.”5 Medical parole procedures can vary in form. Some expressly exclude categories of prisoners based on their conviction type;6 others determine eligibility solely on age.7 Some include terminal and non- terminal illnesses as eligible conditions,8 whereas others apply solely to terminally ill prisoners with or without a defined life expectancy.9 Third parties (such as relatives and lawyers) are expressly allowed to petition on behalf of prisoners in some procedures,10 and some procedures include express time-frames to guide petitioners through

2. 18 U.S.C. § 3582(c)(1)(A)(i)(ii). Federal prisoners may apply for compassionate release (also referred to as a “reduction in sentence”) in two instances. First, they may apply if they have “extraordinary and compelling reasons,” which can relate to medical condition(s), age, family circumstances, or other reasons. Or, second, they may apply if they are aged seventy or above, have served thirty years in prison, and the Director of the Bureau of Prisons (“BOP”) determines s/he is not a danger to others. Following a process involving federal corrections and the BOP, the prisoner’s federal sentencing court (directed by U.S. Sentencing Commission guidelines) makes a final decision. See U.S. DEP’TOF JUST., NO. 5050.50 COMPASSIONATE RELEASE/REDUCTION IN SENTENCE: PROCEDURES FOR IMPLEMENTATION OF 18 U.S.C. §§ 3582 AND 4205(G) (2019). 3. See generally MARY PRICE, EVERYWHERE AND NOWHERE: COMPASSIONATE RELEASE IN THE STATES (2018), https://famm.org/wp-content/uploads/Exec-Summary- Report.pdf; Everywhere and Nowhere: Compassionate Release in the States, State Memos, FAMILIES AGAINST MANDATORY MINIMUMS, https://famm.org/our-work/ compassionate-release/everywhere-and-nowhere/ (last visited Dec. 1, 2020); Cooper, supra note 1 at 18-19. 4. Cooper, supra note 1, at 44; see also Nancy R. Gartner & Rolando V. del Carmen, Releasing the Ailing and Aging: A Comprehensive Analysis of Medical Parole Legislation in the United States, 52 CRIM. LAW BULL. 1, 1 (2016) (“Thirty-five states and the District of Columbia currently have a form of medical parole.”). 5. Cooper, supra note 1, at 22. 6. See, e.g., LA. STAT. ANN. § 15:574.20(B)(2) (West 2018) (“Medical parole shall not be available to any offender serving a sentence for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) or an offender who is awaiting execution.”). 7. See, e.g., GA. CONST. art. IV, § II, para. 2 (providing the Georgia State Board of Pardons and Paroles has the authority to “parole any person who is age 62 or older”). 8. See, e.g., ARK. CODE ANN. § 12-29-404(a)(1)-(2) (West 2019) (stating that Arkansas’s Medical Parole procedure applies to both prisoners that are “[p]ermanently incapacitated” or “terminally ill.”). 9. See, e.g., CONN. GEN. STAT. §§ 54-131b (West 2012), 54-131c (West 1989). Connecticut’s Medical Parole procedure applies exclusively to terminally ill prisoners, who are defined as having a terminal condition, disease, or syndrome that results in the prisoner being so debilitated or incapacitated as to be physically incapable of presenting a danger to society. A terminal condition, disease, or syndrome “includes, but is not limited to, any prognosis by a licensed physician that the inmate has six months or less to live.” Id. 10. See CONN. GEN. STAT. § 54-131e (West 2004) (providing that a “request for a medical diagnosis in order to determine eligibility for medical parole” includes the “inmate’s spouse, parent, guardian, grandparent, aunt or uncle, sibling, child over the age of eighteen years, or attorney”). 2021] REFORMING COMPASSIONATE RELEASE 175 relevant processes.11 Generally, decision-makers (i.e., parole board members) must evaluate medical evidence, determine a prisoner’s risk to public safety, and—if appropriate—set release conditions.12 Numerous studies have investigated compassionate release procedures.13 These studies have identified various limitations in practices, including the absence of both comprehensive reporting and tracking systems and internal appeals processes14—findings that specifically motivate this paper. These absences contribute to there being limited knowledge about what issues petitioners would raise on appeal, how competent authorities would resolve those issues, and whether the approaches taken by either party would map to existing concerns about compassionate release. Thus, it is not apparent what medical parole-related issues petitioners or appellate authorities would deem fair or unfair. This lack of knowledge frustrates evaluation of existing practices and the implementation of evidence- informed reform, including recommendations made for model medical parole procedures. One way to address this dearth of knowledge is to examine medical parole-related petitions in U.S. courts. This paper does just that. To set the scene, Part I summarizes the interplay of prisoner health(care), compassionate release, and the parole system. Part II outlines the rationale and design of our study, which sought to investigate: (1) what issues petitioners raise in medical parole-related petitions to U.S. courts; (2) how courts resolve such petitions; and (3) whether the approaches of petitioners and courts highlight existing concerns about compassionate release. Part III reports our findings. In sum, case law reveals that petitioners have raised issues concerning frustrated access to the medical parole process, the denial of medical parole, irregularities in medical parole processes, improper application of eligibility and exclusion criteria, and the provision of inadequate medical care in prison. Judges generally dismiss appeals, relying on the high standards of proof required to prove eligibility or improper parole-board decision-making; the discretionary nature of parole; standards of review that are highly deferential to parole

11. See, e.g., CAL. PENAL CODE §3550 (West 2017) (including time limits for relevant actions). 12. See generally FAMILIES AGAINST MANDATORY MINIMUMS, NEW YORK (2018), https://famm.org/wp-content/uploads/New-York_Final.pdf (providing a useful example across all these areas, namely evaluation of medical evidence, risk to society, and attachment of release conditions). 13. See, e.g., PRICE, supra note 3; Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse Than the Disease?, 3 WIDENER J. PUB. L. 799 (1994); Gartner & del Carmen, supra note 4; Cooper, supra note 1. 14. See generally infra notes 52-63. 176 CREIGHTON LAW REVIEW [Vol. 54 authorities; and a lack of properly legally postured claims. Case law also reveals a propensity for prisoners to act pro se. Overall, case law can be mapped to four thematic areas where concerns about compassionate release practices already exist, namely (1) eligibility and exclusions, (2) releasing authorities, (3) processes, and (4) support for petitioners. The authors conclude these findings further the call for reforming compassionate release to better serve both the interests of wider society and the United States’ large, ageing, and medically compromised prison population.

I. PRISONER HEALTH(CARE), COMPASSIONATE RELEASE, AND PAROLE

America has a large and ageing prison population, imprisoning approximately 2.3 million adults15 with one third of prisoners expected to be aged fifty-five years or older by 2030.16 High incarceration rates (and the increased medical needs of ageing prisoners) have drawn greater attention17 to the interplays of incarceration and health(care). Following Estelle v. Gamble,18 federal law provides that—because a prisoner must rely on the authorities for treatment— the state has an “obligation to provide [adequate] medical care for those whom it is punishing by incarceration.”19 A “deliberate indifference”20 to a prisoner’s serious illness or injury violates the Eighth Amendment’s prohibition against cruel and unusual punishment, although inadvertent or negligent failures to provide adequate care do not.21 There has been particular focus on how states deliver adequate healthcare to large prison populations, which are known to suffer from higher rates of disease than the general population.22 Ultimately, corrections facilities are required to engage in the complicated and expensive task of “medical management”23 of increasing numbers of

15. WENDY SAWYER & PETER WAGNER, MASS INCARCERATION: THE WHOLE PIE 2020 (2020), https://www.prisonpolicy.org/reports/pie2020.html (“The American criminal justice system holds almost 2.3 million people . . . .”) (last visited Apr. 7, 2020). 16.AM. CIV. LIBERTIES UNION, AT AMERICA’S EXPENSE: THE MASS INCARCERATION OF THE ELDERLY 5 (2012). 17. NAT’L RSCH. COUNCIL OF THE NAT’L ACADS., THE GROWTH OF INCARCERATION IN THE UNITED STATES 203 (2014). 18.429 U.S. 97 (1976). 19. Estelle v. Gamble, 429 U.S. 97, 103 (1976). 20. Estelle, 429 U.S. at 104. 21. Id. at 105-06. 22. DAVID CLOUD, ON LIFE SUPPORT: PUBLIC HEALTH IN THE AGE OF MASS INCAR- CERATION 5 (2014). 23. Jonathan Simon, The Return of the Medical Model: Disease and the Meaning of Imprisonment from John Howard to Brown v. Plata, 48 HARV. L. REV. 217, 248 (2013). 2021] REFORMING COMPASSIONATE RELEASE 177 prisoners with complex medical needs who need compassion.24 How- ever, despite corrections institutions serving an important role in promoting prisoner health(care),25 they “too often serve as ill-equipped treatment providers of last resort for medically underserved, marginalized people.”26 This situation urges stakeholders to consider what circumstances, if any, justify early release on health grounds. Despite the many dis- tractions27 that accompany this question, compassionate release is a staple of the U.S. criminal justice system. The federal government28 and all but one state clearly provide for compassionate release,29 and there are various examples of political will to broaden eligibility. For instance, the First Step Act of 201830 broadened compassionate release for federal prisoners, allowing applications in a relatively wide set of circumstances.31 The bill passed the House of Representatives (358–36)32 and the Senate (87–12)33 by a landslide. States have seen efforts to widen compassionate release procedures too, including through establishing medical parole.34

24. Robert B. Greifinger, Is it Politic to Limit Our Compassion?, 27 J.L. MED. & ETHICS 234, 236 (1999) (noting terminally ill prisoners are in particular need of compassion). 25.NAT’L RSCH. COUNCIL OF THE NAT’L ACADS., supra note 17, at 204. 26.CLOUD, supra note 22, at 5. 27. Greifinger, supra note 24, at 234. 28.18 U.S.C. § 3582(c)(1)(A)(i)-(ii). 29.PRICE, supra note 3, at 12 (“We found that 49 states and the District of Colum- bia provide one or more forms of compassionate release.”) Iowa is seemingly the only state absent a clearly identifiable procedure. See FAMILIES AGAINST MANDATORY MINI- MUMS, IOWA (2018), https://famm.org/wp-content/uploads/Iowa_Final.pdf. Note, however, as the memo indicates, the media reports there has been a compassionate release case in Iowa, but there are no identifiable procedures. 30. 18 U.S.C. § 3631 (2018). 31. Nationally, the First Step Act, signed into federal law in late 2018, allows prisoners to circumvent a Bureau of Prisons denial of eligibility for compassionate release by appealing directly to the sentencing court. In considering a motion for a prisoner’s release, the federal court may grant the relevant motion if (1) the prisoner meets specific age and term-length criteria, or (2) extraordinary and compelling reasons warrant release. Determinations of extraordinary and compelling must align with applicable policy statements issued by the U. S. Sentencing Commission. Because of this stipula- tion, federal courts may consider a multitude of factors including a prisoner’s medical condition, age, and family circumstances. See 18 U.S.C. § 3631. 32. Final Vote Results for Roll Call 448, 115th Con., 2nd Sess., http:// clerk.house.gov/evs/2018/roll448.xml. 33. Roll Call Vote 271, 115th Con., 2nd Sess., https://www.senate.gov/legislative/ LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=2&vote=00271. 34. For example, there have been unsuccessful but sustained efforts to legislate for a broader compassionate release procedure in Arizona. Between 1991 and 2015, eight bills seeking to establish a medical parole procedure were introduced in the Arizona House of Representatives. These bills—in short—aimed to allow prisoners with an “in- capacitating physical condition, disease or syndrome” to apply to the BOEC for release if within one year of release, parole eligibility, or (if neither of the latter two) death. See H.B. 2334, 40th Leg., 1st Reg. Sess. (Ariz. 1991); H.B. 2678, 48th Leg., 1st Reg. Sess. 178 CREIGHTON LAW REVIEW [Vol. 54

Although most states have restricted or eliminated parole,35 the parole system emerges as the most common method of compassionate release across U.S. states,36 with specific procedures often labelled “medical parole.”37 Described as “an act of grace: the dispensation of mercy by the government to an individual prisoner deemed worthy,”38 and with roots in rehabilitative justice,39 parole fits comfortably with the concept of compassion. In the United States, parole takes two forms: mandatory parole and discretionary parole.40 Medical parole is generally an example of the latter, which gives a parole board—a group of ten or fewer individuals, usually political appointees41—discretion in deciding whether to release the prisoner and what post-release restrictions to impose.42 Experienced in reviewing evidence, evaluating cases, balancing equities, drawing conclusions, and imposing conditions, parole boards are viewed as competent authorities to make compassionate release decisions,43 although broad-brush and

(Ariz. 2007); H.B. 2189, 49th Leg., 2nd Reg. Sess. (Ariz. 2009); H.B. 2688, 49th Leg., 2nd Reg. Sess. (Ariz. 2010); H.B. 2380, 50th Leg. Sess., 1st Reg. Sess. (Ariz. 2011); H.B. 2531, 50th Leg. Sess., 2nd Reg. Sess. (Ariz. 2012); H.B. 2374, 51st Leg., 2nd Reg. Sess. (Ariz. 2014); H.B. 2355, 52nd Leg., 1st Reg. Sess. (Ariz. 2015). California is another example. In 2014, a federal court ordered California to expand its medical parole program as part of the effort to reduce prison crowding. See CAL. DEP’TOF CORRS. & REHA- BILITATION, Medical Parole Hearings, https://www.cdcr.ca.gov/bph/mph-overview/ (last visited Apr. 7, 2020). 35.JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REEN- TRY 65 (2003). 36. Cooper, supra note 1, at 44.; see also Gartner & del Carmen, supra note 4, at 1 (“Thirty-five states and the District of Columbia currently have a form of medical parole.”). 37. Cooper, supra note 1, at 22. 38. Daniel S. Medwed, The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings, 93 IOWA L. REV. 491, 493 (2008); see also Mary West- Smith et al., Denial of Parole: An Inmate Perspective, 64 FED. PROB. J. 3, 3 (2000); Escoe v. Zerbst, 295 U.S. 490, 492 (1935) (“Probation or suspension of sentence comes as an act of grace to one convicted of a crime . . . . “). 39.PETERSILIA, supra note 35, at 55. Parole is considered one part of a broader nineteenth-century penal reform trend away from punishment and toward rehabilitation. 40. Daniel M. Fetsco, Early Release from Prison in Wyoming: An Overview of Pa- role in Wyoming and Elsewhere and an Examination of Current and Future Trends, 11 WYO. L. REV. 99, 110 (2011). States using mandatory parole simply rely on a statutory formula specifying a percentage of the inmate’s sentence plus credit for good time served. If the conditions are met, the inmate is released and assigned some form of parole supervision for a specified period of time (typically the remainder of the original sentence). Discretionary parole, as its name suggests, gives a parole board discretion in deciding whether to release the inmate and what post-release restrictions to impose. See generally PETERSILIA, supra note 35, at 59-61. 41. PETERSILIA, supra note 35, at 61. 42. See Fetsco, supra note 40. 43. Russell, supra note 13, at 836. 2021] REFORMING COMPASSIONATE RELEASE 179 idiosyncratic decision-making has been noted as a consequence of institutional strain.44 Empowered to evaluate public safety and decide on early release, parole boards “occupy an influential, if little recognized, niche across the correctional landscape . . . .”45 The use of parole to support implementation of administrative policies aimed at reducing prison over- crowding and violence demonstrates this.46 Indeed, medical parole statutes arose as a means to reduce correctional costs,47 with some procedures specifically established in the 1980s to address the significant number of prisoners with HIV/AIDS.48 Notably, at the time of writing, there are calls to use compassionate release as a vehicle for alleviating pressures associated with the COVID-19 pandemic.49

II. STUDY RATIONALE AND DESIGN There is a growing research base about compassionate release,50 including studies focused on identifying and analyzing existing procedures.51 These studies have raised various concerns about compas-

44. See generally West-Smith et al., supra note 38. 45. Edward E. Rhine et al., The Future of Parole Release, 46 CRIME & JUST. 279, 279 (2016). 46.PETERSILIA, supra note 35, at 62 (citing A. Keith Bottomley, Parole in Transi- tion: A Comparative Study of Origins, Developments, and Prospects for the 1990s, 12 CRIME & JUST. 319, 325 (1990)). 47. Gartner & del Carmen, supra note 4, at 2 (“To cope with tightening budgets while protecting public safety, medical parole statutes emerged as a potential means to reduce correctional costs.”). 48. Id. (citing John A. Beck, Compassionate Release from New York State Prisons: Why Are So Few Getting Out?, 27 J. OF L., MED. & ETHICS 216, 220 (1999)) (“Some of the first medical parole programs, located in New York and California, were set up in the mid-1980s to help state and local correctional facilities address the overwhelming number of inmates afflicted with HIV/AIDS.”); Editorial, New York City Steps Up Program to Free Sick Inmates, MIAMI HERALD, Nov. 9, 1987, at 13A. 49. See, e.g., Kevin Ring, COVID-19 Gives Us an Urgent Argument for Compassion- ate Release, THE HILL (Mar. 26, 2020), https://thehill.com/opinion/criminal-justice/ 489442-covid-19-gives-us-an-urgent-argument-for-compassionate-release; ABA Section of Civil Rights and Social Justice, COVID-19 and the Compassionate Release of the Eld- erly, Infirm or High Risk, YOUTUBE (Apr. 3, 2020), https://www.youtube.com/ watch?v=tknZc4k_83Q&feature=b_title. 50. See Sarah L. Cooper, A Case for Broadening Arizona’s Approach to Compas- sionate Release, 13 L. J. SOC. JUST. 3, 9 (2020) (“There is much scholarship evaluating issues associated with compassionate release. This includes discussions around the broader relationships between incarceration and health(care); the intersection of compassion with politics and the purposes of punishment; international law standards for prisoners; health issues for specific populations (e.g., the elderly); terminal illness in the prison context; and the roles and competencies of corrections, healthcare professionals, and parole boards.”). 51. See, e.g., PRICE, supra note 3; Marjorie P. Russell, Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse Than the Disease?, 3 WIDENER J. PUB. L. 799 (1994); Gartner & del Carmen, supra note 4; Cooper, supra note 1. 180 CREIGHTON LAW REVIEW [Vol. 54 sionate release procedures, including a lack of appeal, reporting, and tracking systems; noting such absences can frustrate the evaluation of procedures. A 1994 study commented on a lack of the right to ap- peal52 in certain procedures and found only two states had some form of mandatory reporting requirements.53 The study recommended the creation of “mechanisms by which data can be collected”54 so that procedures can be subject to “[essential] review and evaluation.”55 Simi- larly, a 2016 study suggested that, to support the undertaking of evaluation exercises, a model medical parole statute should “set reporting requirements for releasing authorities,”56 including numbers of applications and reasons for decisions.57 A 2018 study of all state procedures found “the majority of states do not provide prisoners denied compassionate release a means to appeal the denial.”58 The study recommended, “the right to appeal should be guaranteed” and “[a]t best, a prisoner [should be able to] reapply after a set time.”59 It also echoed calls for mandatory data collection after finding “[m]ore than half of the states do not track or collect any data on how many people apply for and receive compassionate release . . . .”60 The study commented, “[k]nowing who asks for compassionate release, who is denied, and why and how those requests are decided is essential to improving outcomes . . . .”61 Such information will help shape “rational[ ] public policy”62 that aids “appropriate decisions as to medical releases into the community.”63

52. Russell, supra note 13, at 824. (“Finally, clemency programs, even those targeted to compassionate release, may suffer from a lack of due process protections and appeal rights.”). 53. Id. at 832. (“Only Idaho and New York have provisions requiring that statistics be maintained and that annual reports be prepared on the program. Idaho requires reports to both of its Senate and House Judiciary Committees, including the names of released prisoners, their medical conditions, and their current status. New York’s law requires more complex case tracking.”). 54. Id. at 835. 55. Id. 56. Gartner & del Carmen, supra note 4, at 17. 57. Id. (“To facilitate the evaluation of medical parole programs, jurisdictions should set reporting requirements for releasing authorities. The statute should indicate what information the releasing authority is required to report. At a minimum, the reporting requirements should include the number of applications, referrals, and/or recommendations for the medical parole of inmates, the number of those petitions that are granted, and the number of medical parolees who are returned to custody and the reason for that return.”). 58.PRICE, supra note 3, at 19. 59. Id. 60. Id. 61. Id. 62. Greifinger, supra note 24, at 236. 63. Id. 2021] REFORMING COMPASSIONATE RELEASE 181

With this in mind, strategies for investigating what petitioners and appellate authorities perceive as unfair in compassionate release procedures are required. One simple strategy is to examine an acces- sible and sizeable data set where such issues might be publicly aired, namely medical parole-related petitions in U.S. courts.64 Applying standard interrogation techniques on Westlaw U.S. for references to “medical parole” in state and federal cases, the authors generated a case law data set comprised of thirty-seven cases.65 These cases were analyzed within the context of the following research questions: 1. What issues do petitioners raise in medical parole-related petitions to U.S. courts? 2. How do courts resolve such petitions? 3. Do the approaches of petitioners and courts highlight existing concerns about compassionate release? Part III reports the authors’ analysis of the data set.

III. RESEARCH FINDINGS Each case was deconstructed by parties, court, citation (including year), claim(s), outcome(s), and reasoning. These details were then mapped against existing concerns about compassionate release. Sub- section A reports on the first question, the types of issues raised by petitioners in medical parole-related petitions in U.S. courts. Subsec- tion B merges the second and third questions, providing a commentary on the resolution of relevant petitions and how approaches of petitioners and judges map to existing concerns about compassionate release.

A. ISSUES RAISED IN MEDICAL PAROLE-RELATED PETITIONS The data set shows a generally expected variation of claims and legal framing. Claims include concerns about frustrated access to the medical parole process; the denial of medical parole; irregularities in medical parole processes (generally and through the actions of individuals); improper application of eligibility and exclusion criteria; and inadequate medical care in prison.66 Claims are framed as violations of the Eighth or Fourteenth Amendments of the U.S. Constitution, as breaches of state constitutions and laws, in furtherance of applications

64. Given it is the most common method of compassionate release, medical parole- related petitions were hypothesized to yield a sizable data set. 65. See Appendix for a full list of the cases. Note not all cases are described in this paper and that pro se categorizations are based on information available in the case report. 66. See infra Part III(B) for specific examples across the cases. 182 CREIGHTON LAW REVIEW [Vol. 54 for habeas corpus, and as a form of injunctive relief.67 This tapestry is, overall, unsurprising. Existing research acknowledges concerns about access to and the make-up of compassionate release processes;68 the roles, competencies, and resources of relevant decision-makers and institutions;69 burdensome eligibility and exclusion practices;70 and the challenges of providing adequate medical care in prisons.71 Given that these issues naturally emerge within the context of imprisonment, framing them through reference to the Eighth Amendment and habeas corpus is unsurprising. The use of the Fourteenth Amend- ment as a vehicle is also predictable given the potential for the parole process to attract due process protections. Petitioners pursuing injunctive relief (i.e., a court order that medical parole be granted) is understandable in context too.

B. RESOLUTION OF PETITIONS AND MAPPING TO EXISTING CONCERNS ABOUT COMPASSIONATE RELEASE

The authors were able to map their analysis of the claims, outcomes, and reasoning involved in each case to four thematic areas of existing concern about compassionate release.72 This subsection reports on each theme.

1. Eligibility and Exclusions

Eligibility for compassionate release generally relates to serious terminal, non-terminal, and/or age-related health issues. However, many procedures exclude prisoners based on non-health related

67. Id. 68. E.g., PRICE, supra note 3, at 13 (identifying “complex and time-consuming review processes” as a barrier to compassionate release). 69. E.g., id. at 21 (recommending various forms of resource, training and support for agents and institutions); see also Rhine et al., supra note 45; Bryant S. Green, As the Pendulum Swings: The Reformation of Compassionate Release to Accommodate Chang- ing Perceptions of Corrections, 46 U. TOL. L. REV. 123 (2014). 70. E.g., PRICE, supra note 3, at 13 (identifying “strict or vague eligibility requirements and categorical exclusions” as barriers to compassionate release). 71. See generally, e.g., CLOUD, supra note 22; NAT’L RSCH. COUNCIL OF THE NAT’L ACADS., supra note 17; NAT’L RSCH. COUNCIL OF THE NAT’L ACADS., HEALTH AND INCAR- CERATION - A WORKSHOP SUMMARY (2013). 72. Although, naturally, the themes and case categorizations can overlap. The authors made primary categorizations as appropriate in their view. See Appendix. 2021] REFORMING COMPASSIONATE RELEASE 183 grounds, including offender categorization,73 parole eligibility,74 and minimum sentencing requirements.75 The scope of exclusion categories has been challenged. In Baker v. State,76 a challenge was made to the Alaska Special Medical Parole statute, which allowed certain “severely disabled”77 prisoners to apply for early release.78 The original 1995 statute excluded one group: prisoners who had been convicted of sexual abuse of a minor in the first, second, or third degree.79 In 2003, the legislature broadened this to include other sexual assault offenses,80 capturing Baker, who had committed an attempted sexual assault in 1984 (before the enactment of any form of special medical parole).81 Baker challenged the retrospective application of the broader exclusion to him, arguing it violated the ex post facto clause of the Alaska Constitution.82 Baker argued the exclusion was “so punitive in effect as to constitute [an additional] punishment.”83 The court disagreed, finding that the exclusion “simply returned Baker to the position he was in at the time he committed his 1984 offense”84 and that any challenge to the exclusion policy should be directed at the state legislature.85 Categorical exclusions, like that in Baker, have been described as an obstacle to compassionate release,86 yet a 2016 study identified them as typical, noting that there is “wide variation in the types of

73. See, e.g., CAL. PENAL CODE § 3055 (West 2017) (excluding inmates convicted of first-degree murder of a “peace officer”); N.J. STAT. ANN. § 30:4-123.51c (West 2018) (excluding inmates convicted of “violent offenses” like murder, manslaughter, and aggra- vated sexual assault). 74. See, e.g., CAL. PENAL CODE § 3055 (excluding inmates sentenced to life without the possibility of parole); KAN. STAT. ANN. §§ 22-3728 (West 2014) (excluding inmates sentenced to death or life without the possibility of parole). 75. See, e.g., COLO. REV. STAT. § 17-2-201 (West 2020) (setting 20-year and 10-year limits on eligibility for inmates convicted of Class 1 and Class 2 felonies, respectively); N.Y. EXEC. LAW §259-r (McKinney 2015) (requiring inmates convicted of certain violent crimes to complete one-half of the sentence to become eligible for medical parole). 76. No. A-12661, 2017 WL 4570573 (Alaska Ct. App. Oct. 11, 2017). 77. Baker v. State, No. A-12661, 2017 WL 4570573, at *1 (Alaska Ct. App. Oct. 11, 2017). 78. Baker, No. A-12661, 2017 WL 4570573, at *1. 79. Id. Note, this exclusion contained one exception: if a prisoner convicted of sexual abuse of a minor under ALASKA STAT. § 11.41.434-438 had become a quadriplegic since the time of the offense or the parole or probation violation for which he was incarcerated, that person was eligible for special medical parole. Id. 80. Id. The expansion also removed any exception to the sexual abuse of a minor exclusion for quadriplegia. Id. 81. Id. 82. Id. 83. Id. at *2. 84. Id. 85. Id. at *3. 86.PRICE, supra note 3, at 13. 184 CREIGHTON LAW REVIEW [Vol. 54 violent offenses that exclude an inmate from medical parole[ ].”87 Re- search urges exclusions be clearly explained88 (such as a clear statement about whether they apply to convictions prior to the establishment of the procedure) and primarily based on a prisoner’s present medical condition(s).89 Families Against Mandatory Mini- mums (“FAMM”) recommends “that all eligible prisoners are considered for compassionate release, notwithstanding their crime, sentence, or amount of time left to serve.”90 Procedures describe eligibility in different ways.91 Generally, however, relevant criteria tend to encompass elevated standards of proof.92 Courts have expressly referenced this. In Davidson v. Mary- land Parole Commission,93 for example, the petitioner sought injunctive relief mandating he be granted medical parole,94 alleging he suffered from multiple sclerosis.95 In rejecting the claim based on a lack of supporting evidence that the prisoner met the relevant eligibility criteria, namely to be “so debilitated or incapacitated by a medical or mental health condition, disease, or syndrome as to be physically incapable of presenting a danger to society,”96 the court observed “the standard is exceptionally high.”97

87. Gartner & del Carmen, supra note 4, at 6. 88. Id. at 14-15 (“It is equally important for statutes to state the reasons why an inmate is disqualified from consideration. The disqualification should be clear in the statute and references to disqualifying statutes, if any, should be included.”); see id. at 15-16 (listing reasons for which inmates are exempt from consideration). 89. Russell, supra note 13, at 833 (“All terminally ill prisoners should be eligible for compassionate release. Once we are dealing with someone suffering from a terminal illness, penologic considerations are secondary. In light of current societal values addressing death with dignity, considerations of punishment, deterrence, and rehabilitation should no longer come into play. The seriousness of the crime is not deprecated if we permit the terminally ill to die outside the hostile confines of prison. This is certainly true when a predicate to release is a finding that the prisoner no longer poses a threat to society. Thus, no crimes or sentences should serve as a basis for exclusion, nor should minimum time served requirements be imposed.”). 90. PRICE, supra note 3, at 21. 91. See Cooper, supra note 50 at 14. (“Eligibility for compassionate release generally relates to serious terminal, non-terminal, and/or age-related health issues. Non- terminal conditions are described varyingly, but typically require prisoners be subject to serious medical conditions/disabilities that significantly incapacitate them. Mental health is occasionally included. Age is referenced in various ways. Tens of procedures expressly reference “terminal” within eligibility criteria, with many including a tempo- ral reference. These references range from that death must be ‘imminent,’ to that it must occur within 24 months.”). 92. Id. 93. No. CIV.A. JFM-13-250, 2013 WL 1830097 (D. Md. Apr. 30, 2013). 94. Davidson v. Maryland Parole Comm’n, No. CIV.A. JFM-13-250, 2013 WL 1830097, at *1 (D. Md. Apr. 30, 2013). 95. Davidson, No. CIV.A. JFM-13-250, 2013 WL 1830097, at *2. 96. Id. at *5. 97. Id. at *4. 2021] REFORMING COMPASSIONATE RELEASE 185

Further, there is evidence of releasing authorities applying criteria in an elevated way, particularly as it pertains to assessments concerning public safety. For example, in In re Martinez,98 a quadriplegic inmate petitioned for habeas corpus, seeking review of a parole board decision to deny medical parole.99 It was accepted Martinez met the criteria for permanent medical incapacitation, but the board relied on his history of disciplinary problems and commitment offenses to conclude he “remains a violent person who is capable of using others to carry out his threats, and that he would also be a public safety threat to those who attend him outside the prison walls.”100 On review, the court sought to establish if there was some evidence101 to support the board’s position. It found there was not, noting “Martinez’s physical condition severely limits his ability to harm others.”102 The court granted Martinez’s parole, deferring to the board to set conditions.103 Jewell v. Superior Court of San Bernardino County104 provides another example. The parole board had approved Jewell for compassionate release, concluding he was terminally ill with fewer than six months to live and posed no risk to public safety.105 The releasing authority—the trial court—rejected the approval, however, finding insufficient evidence of both Jewell’s life expectancy prognosis and lack of danger to public safety.106 The court based the latter finding on the fact that his release plans had changed and provided possible access to alcohol.107 The reviewing court noted Jewell had disproved his prognosis, but underscored there was no “dispute in the record that he is [clinically judged to be] terminally ill.”108 The court also accepted Jewell habitually abused alcohol and other substances109 at the time of his offenses, but it rejected that there was a reasonable possibility that his host would allow him to obtain alcohol and access a vehicle, or that he—in his weak and emaciated state—would elect to carry out such actions.110 To find otherwise, the reviewing court determined, would be to encourage “arbitrary, inconsistent decision-making”111

98.148 Cal. Rptr. 3d 657 (Cal. Ct. App. 2012). 99. In re Martinez, 148 Cal. Rptr. 3d 657, 659-60 (Cal. Ct. App. 2012). 100. In re Martinez, 148 Cal. Rptr. 3d at 663. 101. Id. at 658. 102. Id. at 673. 103. Id. at 679. 104. No. E065047, 2016 WL 1535879 (Cal. Ct. App. Apr. 14, 2016). 105. Jewell v. Superior Court of San Bernardino Cty., No. E065047, 2016 WL 1535879, at *1 (Cal. Ct. App. Apr. 14, 2016). 106. Jewell, No. E065047, 2016 WL 1535879, at *1. 107. Id. 108. Id. at *3. 109. Id. at *4. 110. Id. at *5. 111. Id. 186 CREIGHTON LAW REVIEW [Vol. 54 about risk and frustrate the intended reach of the compassionate release statute. The court ordered Jewell’s release.112 The decisions in Martinez and Jewell lend support to the idea that eligibility criteria should not be unduly strict, cruel, or vague,113 and that the assessment of a prisoner’s risk to public safety should be nuanced and evidence-informed, reflecting that ill health likely lessens that risk.114 Also, in navigating Jewell’s survival beyond his original prognosis, the Jewell court evidenced understanding of the challenges associated with prognostication, showing alignment with concerns about over-relying on the accuracy of end-of-life predictions, including in the specific context of compassionate release.115 Ap- proaching such predictions inflexibly can result in eligibility criteria being overly burdensome. Time can run out, for example. In People v. McCarty,116 McCarty had multiple sclerosis and was reported to be “paralyzed in all four extremities”117 requiring “total care.”118 Medi- cal parole was granted with the parties stipulating McCarty had an incurable disease, was expected to die within one year, and was physically incapacitated.119 The superior court, however, denied relief, concerned that it could not “be assured that he does not pose a threat to public safety”120 and compassionate release would not allow for re-

112. Id. 113.PRICE, supra note 3, at 13-14 (reporting strict and vague requirements); id. at 21 (recommending to “[r]emove unduly strict, cruel, or otherwise unwarranted eligibility requirements”). 114. Id. at 8 (“As prisoners age or experience declining health, their threat to public safety lessens, as do some of the justifications for continuing to hold them behind bars.”). 115. Jalila Jefferson-Bullock, Are You (Still) My Great and Worthy Opponent?: Com- passionate Release of Terminally Ill Offenders, 83 UMKC L. REV. 521, 559 (2015) (quoting Brie A. Williams et al., Balancing Punishment and Compassion for Seriously Ill Prisoners, 155 ANNALS INTERNAL MED. 2, 122-23 (2011)) (“Governmental entities, policy leaders, academics, and medical experts all agree that the compassionate release system is ill-constructed. According to medical professionals, compassionate release procedures need to be reformed because they are ‘critically flawed’ and because ‘procedural barriers may . . . limit their rational application.’ In their words, ‘[w]e argue that the medical eligibility criteria of many compassionate-release guidelines are clinically flawed because of their reliance on the inexact science of prognostication, and additional procedural barriers may further limit rational application. Given that early release is politically and socially charged and that eligibility is based largely on medical evidence, it is critical that such medical evaluation be based on the best possible scientific evidence and that the medical profession help minimize medically related procedural barriers.’”). 116. No. A135608, 2013 WL 1278503 (Cal. Ct. App. Mar. 29, 2013). 117. People v. McCarty, No. A135608, 2013 WL 1278503, at *2 (Cal. Ct. App. Mar. 29, 2013). 118. McCarty, No. A135608, 2013 WL 1278503, at *2 (“He requires total care in regards to nutrition, going to the bathroom, and bathing. His prognosis is profoundly poor with no likelihood of clinical improvement.”). 119. Id. 120. Id. at *3. 2021] REFORMING COMPASSIONATE RELEASE 187 lease conditions.121 McCarty appealed, but died shortly after, rendering the issues raised moot.122 There is evidence, however, of some reviewing courts implicitly recognizing the pliable nature of end-of-life predictions. In New Jersey v. Alston,123 Alston was given six months to live due to cancer, triggering eligibility for medical parole. A public defender was appointed to represent him.124 Alston’s application was denied because his prognosis improved.125 He was still terminal, but his revised prognosis ex- ceeded six months, rendering him ineligible for medical parole.126 The trial court noted the public defender had not had ample time to investigate, including time to collate medical evidence, but denied the relevant petition, and so Alston appealed.127 The reviewing court remanded the case back to the trial court, finding “the changing nature of defendant’s medical status and the lack of a complete investigation”128 meant much of the information before the trial court was in- complete and outdated.

2. Releasing Authorities Compassionate release methods include parole,129 executive clemency/commutation,130 reprieves,131 sentence modifications,132 ex-

121. Id. (“The court expressed concern that compassionate release, unlike medical parole, would be unconditional and without any mechanism to take McCarty back into custody.”). 122. Id. at *1 (“Subsequent to filing this appeal, McCarty passed away in prison. We therefore dismiss his appeal as moot.”). 123. No. A-1664-08T4, 2010 WL 2990898 (N.J. Super. Ct. App. Div. July 29, 2010). 124. State v. Alston, No. A-1664-08T4, 2010 WL 2990898, at *4 (N.J. Super. Ct. App. Div. July 29, 2010). 125. Alston, No. A-1664-08T4, 2010 WL 2990898, at *4. 126. Id. 127. Id. (rejecting pro se motion for a change of sentence). 128. Id. at *5. 129. See, e.g., WYO. STAT. ANN. § 7-13-424 (West 2008) (Wyoming’s “Medical Parole” procedure); ARK. CODE ANN. § 12-29-404 (West 2019) (Arkansas’s procedure for “[m]edical parole for a terminal illness or permanent incapacitation”); CONN. GEN. STAT. § 54-131a (West 2004) (Connecticut’s procedure for “[r]elease of an inmate on medical parole”). 130. See, e.g., ARIZ. REV. STAT. ANN. § 31-403 (West 2009) (granting inmates eligibility for commutation if “in imminent danger of death due to a medical condition”); 220 IND. ADMIN. CODE § 1.1-4-1.5 (West 2013) (describing Indiana’s procedure for “[s]pecial medical clemency”); Executive Clemency Process Summary, MICH. DEP’TOF CORRS., https://www.michigan.gov/corrections/0,4551,7-119-1435_11601-223452—,00.html (last visited Oct., 27, 2019) (allowing recommendation for commutation for inmates with “a deteriorating and/or terminal medical condition”). 131. See GA. CONST. art. IV, § II, para. II(e) (granting Georgia’s parole board power to “issue a medical reprieve to an entirely incapacitated person”); 37 TEX. ADMIN. CODE §143.34 (West 2018) (granting the Texas parole board the authority to consider applications for “medical emergency reprieve”). 132. See DEL. CODE ANN. tit. 11, § 4217 (West 2010) (giving Delaware courts the power to modify sentences for, among other things, “serious medical illness or infir- 188 CREIGHTON LAW REVIEW [Vol. 54 tended confinement with supervision,133 respite programs,134 and fur- loughs.135 This diversity leads to a variety of releasing authorities. Naturally, parole authorities dominate as the relevant releasing authority in the context of this paper. There are benefits to utilizing parole authorities for compassionate release. As Russell remarks, “[t]hese panels deal with release determinations on a daily basis. They are accustomed to reviewing evidence, evaluating cases, balancing equities, and drawing conclusions. They are also well prepared to determine what conditions should be imposed in any given situation.”136 Two issues about the operation of parole authorities, however, emerge across the case law. The first issue is the largely discretionary nature of parole, including that parole does not necessarily attract a constitutionally protected interest. Multiple cases expressly reference this characteristic. In Bass v. Thomas137 the petitioner alleged the parole board’s refusal to grant him medical parole was unconstitutional. Bass’s claim failed to identify an appropriate defendant, but nonetheless the court commented that he would not be entitled to relief because he possessed no liberty interest in parole protected by Due Process.138 The court cited authority describing the rejection of parole as “merely a disappointment.”139

mity”); WIS. STAT. ANN. § 302.113 (West 2013) (allowing sentence modification for “an extraordinary health condition”). 133. See, e.g., ME. STAT. tit. 34-A, § 3036-A.10 (West 2019) (including “[t]erminally ill or incapacitated” inmates in Maine’s “[s]upervised community confinement” procedure); WIS. STAT. ANN. § 302.113 (describing Wisconsin’s “[r]elease to extended supervision” procedure). 134. See W. VA. DIV. OF CORRS., WEST VIRGINIA DIVISION OF CORRECTIONS ANNUAL REPORT: FY2018 45 (2018), https://dcr.wv.gov/resources/Documents/annual_reports/ WVDOC%2018%20Annual%20Report.pdf (charting releases under West Virginia’s “Medical Respite” procedure). 135. See, e.g., ARIZ. REV. STAT.ANN. § 31-233 (West 2012) (allowing inmates to seek “medical treatment not available” to them); VT. STAT. ANN. tit. 28, § 808 (West 2018) (allowing inmates to be “place[d] on medical furlough”); ALA. CODE §§ 14-14-1–14-14-7 (West 2020) (comprising a range of statutes referred to in the text as the “Alabama Medical Furlough Act”). 136. Russell, supra note 13, at 836. 137. No. 2:13-CV-88-WHA, 2016 WL 958906 (M.D. Ala. Feb. 18, 2016), report and recommendation adopted, No. 2:13-CV-088-WHA, 2016 WL 958464 (M.D. Ala. Mar. 14, 2016). 138. Bass v. Thomas, No. 2:13-CV-88-WHA, 2016 WL 958906, at *3 (M.D. Ala. Feb. 18, 2016), report and recommendation adopted, No. 2:13-CV-088-WHA, 2016 WL 958464 (M.D. Ala. Mar. 14, 2016). 139. Bass, No. 2:13-CV-88-WHA, 2016 WL 958906, at *3 (quoting Damiano v. Flor- ida Parole and Probation Commission 785 F.2d 929, 933 (11th Cir. 1986)) (stating, “a denial of parole does not rise to the level of an Eighth Amendment violation as such action is ‘merely a disappointment rather than a punishment of cruel and unusual proportions’”). 2021] REFORMING COMPASSIONATE RELEASE 189

This lack of a constitutionally protected interest is repeated in Haughie v. Blumberg,140 where the petitioner alleged he suffered various ailments following tumor surgery. Rejecting Haughie’s claim that his continued incarceration was unconstitutional, the court under- lined that the Constitution “does not create a protected liberty interest in the expectation of parole.”141 In F.M. Simmons v. Cannon,142 a Texas prisoner argued he should be released on Medically Recom- mended Intensive Supervision (“MRIS”) to receive needed care.143 Noting it lacked competence to authorize MRIS, the court underscored that, per state law, MRIS “is entirely discretionary and that Simmons has no constitutionally protected liberty interest in release on medical parole.”144 The position of state law also steered the decision in Rob- erts v. Conley.145 In that case, it was determined that a failure to grant medical parole to a terminally ill prisoner and requiring him to serve a five-year sentence following his failure to complete an alcohol treatment program was lawful. State law, the court observed, established that parole of a prisoner with a terminal disease was discretionary.146 References to parole authority discretion also appear in Eighth Amendment-based challenges. In Reynolds v. Crawford,147 for instance, the petitioner described herself as suffering from “life threatening”148 cardiomyopathy, and alleged the failure of prison officials to recommend her for medical parole violated the Eighth Amendment. In rejecting that such inaction would amount to a deliberate indifference to a prisoner’s medical need, the court observed “the issuing of medical parole is a determination to be made by the parole board, and the failure to grant such parole, does not rise to the level of cruel and unusual punishment.”149 The second emerging issue is the highly deferential standard of review applied by courts to parole authority decision-making. Three

140. No. CV JFM-16-3201, 2016 WL 5477557 (D. Md. Sept. 29, 2016), aff’d in part, appeal dismissed in part, 684 F. App’x 302 (4th Cir. 2017). 141. Haughie v. Blumberg, No. CV JFM-16-3201, 2016 WL 5477557, at *1 (D. Md. Sept. 29, 2016), aff’d in part, appeal dismissed in part, 684 F. App’x 302 (4th Cir. 2017). 142. No. CIV.A. 6:08CV304, 2009 WL 1350812 (E.D. Tex. May 12, 2009). 143. F.M. Simmons v. Cannon, No. CIV.A. 6:08CV304, 2009 WL 1350812, at *8 (E.D. Tex. May 12, 2009). 144. F.M. Simmons, No. CIV.A. 6:08CV304, 2009 WL 1350812, at *8. 145. No. 2:08CV00044 ERW, 2009 WL 2170173 (E.D. Mo. July 20, 2009). 146. Roberts v. Conley, No. 2:08CV00044 ERW, 2009 WL 2170173, at *4 (E.D. Mo. July 20, 2009) (quoting MO. REV. STAT. § 217.250 (2020)) (“Missouri law states that when an ‘offender is afflicted with a disease that is terminal’ the board of probation and parole ‘in their discretion may grant a medical parole.’”). 147. No. 206CV00009 ERW, 2007 WL 586800 (E.D. Mo. Feb. 21, 2007). 148. Reynolds v. Crawford, No. 206CV00009 ERW, 2007 WL 586800, at *1 (E.D. Mo. Feb. 21, 2007). 149. Reynolds, No. 206CV00009 ERW, 2007 WL 586800, at *5. 190 CREIGHTON LAW REVIEW [Vol. 54

New York cases illustrate this. These cases articulate that to be usurped on review, parole authority decision-making must exhibit “ir- rationality bordering on impropriety.”150 In Black v. New York State Board of Parole,151 the decision of a parole authority to reject a quadriplegic prisoner’s application for medical parole based not only on medical documentation but also on a review of various factors including the petitioner’s crime, criminal history, prison disciplinary record, program accomplishments and post-release plans, did not meet this standard. A similar view was taken in Trobiano v. State of New York Division of Parole152 where the Parole Board’s emphasis on the seriousness of the prisoner’s crime (as opposed to his failing health) was permissible within the board’s discretion. In Ifill v. Wright,153 a parole commissioner’s decision to reject medical parole based on a review of relevant medical documentation, despite a recommendation from medical staff that Ifill be eligible, also did not meet the standard. The discretionary nature of parole and highly deferential standards of review further narrow the scope of compassionate release, resulting in a cul-de-sac for petitioners. The case law brightly illuminates how crucial parole authority decision-making is. This arguably adds to calls for two particular research recommendations. First, parole authorities should be further supported in their decision-making. As Rhine et al. suggest, “[t]he institutional structure and composition of parole boards should be reconstituted to ensure members possess the requisite education, expertise, and independence relative to release decision making.”154 In compassionate release cases, this likely involves specific support for understanding such things as complex medical evidence, clinical practices (e.g., around diagnosis and prognosis), and healthcare operations and infrastructures inside and outside of corrections facilities. A further fostering of cross- cultural competency between parole authorities, healthcare professionals and corrections needs to be coordinated. Second, compassionate release procedures should have integrated accountability mechanisms, such as reporting and tracking systems and internal appeal processes. Such practices would generate important records of the decision-making process, improving both the ability of petitioners and parole authorities to substantiate their claims and decision-making respectively. Specifically, the latter practice would allow parole

150. Black v. New York State Bd. of Parole, 920 N.Y.S.2d 744, 745 (N.Y. App. Div. 2011) (quoting Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77 (1980)). 151. 920 N.Y.S.2d 744 (N.Y. App. Div. 2011). 152. 728 N.Y.S.2d 269 (N.Y. App. Div. 2001). 153. 941 N.Y.S.2d 812 (N.Y. App. Div. 2012). 154. Rhine et al., supra note 45, at 282-83. 2021] REFORMING COMPASSIONATE RELEASE 191 authorities to unpack local decisions more readily, reflecting such cases inherently often concern sensitive and changing circumstances. The need to rethink discretionary parole release generally is recognized across stakeholders, with some considering it “an auspicious time to rethink the future and functions of parole boards.”155 Across their case load, parole authorities are “well positioned to play crucial roles in engineering new approaches,”156 and this should include compassionate release.

3. Processes

Compassionate release processes vary. As one study found, “[t]he sheer number of individuals and entities, and/or combinations . . . charged with decision-making regarding candidates for medical parole can be staggering.”157 Recommendations urge that processes be streamlined and clear.158 Issues across these two points of focus emerge in the case law. The streamlining of procedures, for example, presents in Tatta v. State.159 Claiming, inter alia, that he was suffering from “several serious illnesses,”160 Tatta challenged the parole board’s decision to order that he wait twenty-four months before reconsideration of his unsuccessful parole application. Despite acknowledging that Tatta suffered from “various illnesses,”161 the reviewing court found his claim lacked merit, noting he did not qualify for medical parole and that the parole board had properly exercised its discretionary decision-making. Research has noted that the “majority of states do not provide prisoners denied compassionate release a means to appeal the denial”162 and suggested, “the right to appeal should be guaranteed,”163 with a prisoner at least being able to “reapply after a set time.”164 The period that must elapse before a reapplication should reflect the changing and sensitive nature of ill health. The inclusion

155. Id. at 327. 156. Id. at 328. 157. Gartner & del Carmen, supra note 4, at 11. 158. E.g., Russell, supra note 13, at 832-33. (“Because of the exigent nature of terminal illness, any compassionate release program should be constructed so that cases can be expeditiously processed. . . . The more complex the system, the less likely that it will be efficient in accomplishing its goal . . . .”) 159.737 N.Y.S.2d 163 (N.Y. App. Div. 2002). 160. Tatta v. State, 737 N.Y.S.2d 163, 164 (N.Y. App. Div. 2002). 161. Tatta, 737 N.Y.S.2d at 164. 162. PRICE, supra note 3, at 19. 163. Id. 164. Id. 192 CREIGHTON LAW REVIEW [Vol. 54 of express time limits in processes to reflect the need for expedited review is also encouraged.165 Concerning clarity, case law shows prisoners raising specific issues associated with—separately—process evidence requirements and process agents. Regarding the former, Beale v. Ward166 provides supports for the need to itemize evidence requirements. In that case, the petitioner was receiving cancer treatment. He alleged a due process violation based on the alleged destruction by an administrator of a physician’s letter recommending that he be released on medical parole.167 This, he argued, prevented the Oklahoma Pardon and Parole Board from considering him for medical parole.168 The reviewing court identified this as a cognizable claim. This arguably presses the need for processes to include clear instructions on the handling and itemizing of evidence, a practice recommended for inclusion in model medical parole procedures.169 Poydras v. Louisiana Dept. of Public Safety and Corrections170 relates to clarity about the process agent(s) tasked with identifying eligible prisoners. In that case, the Department of Corrections was the agency given competence to make eligibility decisions,171 and Poydras complained about the department’s refusal to refer him for consideration for medical parole.172 The reviewing court rejected the complaint for lack of appropriate legal posture.173 Research encour-

165. See id. at 21 (“Establish time frames within which document-gathering, assessment, and decision-making must occur that are realistic, provide sufficient time to develop informed decisions, and are sensitive to the need for expedited review in the case of terminal illness.”); Gartner & del Carmen, supra note 4, at 16 (“For the process description to be even more useful, jurisdictions should state specific time limits for the consideration process and the length of the decision period from time of application to the final release decision.”). 166. No. CIV-05-253-M, 2005 WL 1322877 (W.D. Okla. June 1, 2005). 167. Beal v. Ward, No. CIV-05-253-M, 2005 WL 1322877, at *1 (W.D. Okla. June 1, 2005). 168. Beal, No. CIV-05-253-M, 2005 WL 1322877, at *1. 169. Gartner & del Carmen, supra note 4, at 15-16 (recommending that statutes “[l]ist and define necessary documentation for consideration” and “describe how these documents should be delivered—full report, separately as they are completed, etc.—and to whom the documents must be delivered”). 170. No. 2012 CA 1475, 2013 WL 1196587 (La. Ct. App. Mar. 25, 2013), writ denied, 125 So.3d 424 (La. Nov. 1, 2013). 171. Poydras v. La. Dep’t of Pub. Safety & Corr., No. 2012 CA 1475, 2013 WL 1196587, at *1 (La. Ct. App. Mar. 25, 2013), writ denied, 125 So.3d 424 (La. Nov. 1, 2013) (“[T]he Department was the entity that shall identify those inmates who might be eligible for medical parole.”). 172. Poydras, No. 2012 CA 1475, 2013 WL 1196587, at *2 (“In the instant matter, the petitioner’s complaints concern the conditions of his confinement and the Depart- ment’s refusal to refer him for consideration for medical parole.”). 173. Id. (“On the basis of these complaints, he alleges he is entitled to an immediate release. However, these complaints do not constitute a true request for criminal post- 2021] REFORMING COMPASSIONATE RELEASE 193 ages the proactive identification of eligible prisoners.174 Corrections personnel are in an unrivalled position to build familiarity with prisoners and, thus, an (albeit lay) sensitivity to any changing health status. Noting this, FAMM recommends that corrections personnel be trained to “understand eligibility criteria for compassionate release”175 and be taught “how to identify eligible prisoners and make it their duty to do so.”176 Naturally, however, these ideas have tensions with available expertise and resources. Wylie v. Montana Women’s Prison177 concerns the clarity with which process agents communicate about compassionate release. Wylie alleged that the prison warden did not present her request for a medical parole hearing to the Board of Pardons and Parole.178 Wylie provided her medical parole application to the prison on July 23, 2011.179 On January 9, 2012, prison officials informed Wylie that her application had been denied. She requested a formal denial and on June 1, 2012 was told the prison was “trying to get the paperwork.”180 On July 2, 2012, Wylie received a response from the warden indicating that her medical parole was “dis- approved”181 because it did not meet the criteria.182 Wylie never received any paperwork from the Board of Pardons and Parole.183 Wylie alleged the prison never sent her request for medical parole to the Board of Pardons and Parole.184 The reviewing court determined a claim could proceed against the warden.185 More broadly, however, Wylie raises questions about expediency and the need to keep process- users informed. Specifically, FAMM recommends to “[k]eep prisoners, family members, and advocates informed at each stage of the assessment and decision-making process.”186

4. Support for Petitioners Compassionate release procedures (including medical parole) involve multi-agency interactions. Across these agencies, procedures al-

conviction habeas relief since they do not attack the petitioner’s conviction or sentence.”) 174. See PRICE, supra note 3, at 21 (“Teach staff how to identify eligible prisoners and make it their duty to do so.”). 175. Id. 176. Id. 177. No. CV 13-53-BLG-SEH, 2014 WL 1871825 (D. Mont. May 8, 2014). 178. Wylie v. Montana Women’s Prison, No. CV 13-53-BLG-SEH, 2014 WL 1871825, at *9 (D. Mont. May 8, 2014). 179. Wylie, No. CV 13-53-BLG-SHE, 2014 WL 1871825, at *9. 180. Id. 181. Id. 182. Id. 183. Id. 184. Id. 185. Id. 186. See PRICE, supra note 3, at 21. 194 CREIGHTON LAW REVIEW [Vol. 54 low for various agents to be petitioners in compassionate release cases, including prisoners, attorneys, relatives, corrections personnel, and healthcare professionals.187 Research recommends establishing further support for petitioners (especially prisoners).188 This could take the shape of assisting petitioners in developing literacy about the administrative and legal context, process, and substance of compassionate release procedures. Case law suggests there are lacunas in such understanding, particularly in the context of prisoners acting pro se and attempting to raise issues associated with compassionate release. There is evidence of prisoners struggling to follow specific directions. In Alexander v. Grounds,189 Alexander petitioned the court to release him on medical parole. The court noted that Alexander had been expressly directed on the need to “make clear how he is in custody in violation of the Constitution or federal law”190 and that he must “first exhaust state judicial remedies,”191 but that he had failed to do either. He had also, despite being directed to file an amended petition, filed ten motions.192 Alexander’s petition was denied for failing to present a cognizable claim.193 Similarly, in Austad v. Schweitzer,194 Austad—who was confined to a wheelchair—alleged, inter alia, a denial of due process in his medical parole hearing.195 The court noted that Austad had been given the opportunity to amend his original complaint to remedy a defect in the named defendants but had failed to do so.196 His civil rights claims were dismissed.197 Poydras v. Louisiana Department of Public Safety and Corrections198 provides another example. After being denied a referral for consideration for medical parole, Poydras filed a petition captioned “Application For: Criminal Post-Conviction Habeas Corpus,”199 alleging various wrongdoings. Poydras was advised to pay relevant fees or apply for pauper status, which he failed to do.200

187. Cooper, supra note 1, at 35-39; PRICE, supra note 3, at 17 (“Quite a few states permit family members to begin the application process themselves.”). 188. See PRICE, supra note 3, at 21. 189. No. C 14-1928 EDL (PR), 2014 WL 5408407 (N.D. Cal. Oct. 22, 2014). 190. Alexander v. Grounds, No. C 14-1928 EDL (PR), 2014 WL 5408407, at *1 (N.D. Cal. Oct. 22, 2014). 191. Alexander, No. C 14-1928 EDL (PR), 2014 WL 5408407, at *2. 192. Id. at *1. 193. Id. 194. No. CV08-32H-DWM-JCL, 2008 WL 5416389 (D. Mont. June 12, 2008). 195. Austad v. Schweitzer, No. CV08-32H-DWM-JCL, 2008 WL 5416389, at *1 (D. Mont. June 12, 2008). 196. Austad, No. CV08-32H-DWM-JCL, 2008 WL 5416389, at *1. 197. Id. at *4. 198. Poydras, No. 2012 CA 1475, 2013 WL 1196587. 199. Id. at *1. 200. Id. 2021] REFORMING COMPASSIONATE RELEASE 195

Subsequently, the commissioner noted the matter as civil, rather than criminal, since Poydras did not raise any post-conviction claims.201 Poydras appealed, arguing, inter alia, this reclassification was an error.202 The court disagreed, explaining: [A]lthough the petitioner labeled his pleadings as applications for post-conviction habeas relief, Louisiana courts look beyond the caption, style, and form of pleadings to determine from the substance of the pleadings the true nature of the proceeding. Thus, a pleading is construed for what it really is, not for what it is erroneously called.203 Poydras’s struggle to develop a legally substantive petition is rep- licated in other cases. Some petitions are expressly dismissed for wholly lacking substance. For example, in F.M. Simmons v. Can- non,204 Simmons’s claim that he should be released on medical parole was described as “frivolous,”205 as were the claims made in Anderson v. Thompson,206 a case that involved a prisoner with an allegedly long list of health issues. In Gross v. Buescher,207 Gross’s allegation that inadequate budgets demonstrated a deliberate indifference to his serious medical needs was described as “totally meritless,”208 as were claims made in Foreman v. Director TDCJ-CID.209 There are other examples of prisoners submitting petitions that are time barred or without exhausting administrative remedies too.210 Further, Aponte v. Board of Parole Commissioners211 and Dinkins v. Correctional Med- ical Services212 both provide examples of courts expressly relying on their duty to show liberality toward pro se litigants213 in order to resolve petitions. Marks v. Johnson214 provides another example of a

201. Id. 202. Id. 203. Id. 204. No. CIV.A. 6:08CV304, 2009 WL 1350812 (E.D. Tex. May 12, 2009). 205. F.M. Simmons, No. CIV.A. 6:08CV304, 2009 WL 1350812, at *9. 206. No. CIV.A. 6:09CV244, 2010 WL 817182, at *7 (E.D. Tex. Mar. 4, 2010). 207. 791 F. Supp. 796 (E.D. Mo. 1992). 208. Gross v. Buescher, 791 F. Supp. 796, 798 (E.D. Mo. 1992). 209. No. 6:11CV116, 2011 WL 5080180, at *8 (E.D. Tex. July 12, 2011), report and recommendation adopted No. 6:11CV116, 2011 WL 5080174 (E.D. Tex. Oct. 24, 2011) (specifically stating that the petitioner’s medical parole-related claim lacked merit). 210. E.g., Rodriguez v. Johnson, No. CIV. A. G-06-0768, 2008 WL 2403722 (S.D. Tex. June 10, 2008). 211. No. 9:17-CV-0305 (GTS/DEP), 2017 WL 8780766, at *4 (N.D.N.Y. July 14, 2017) (“Construing the complaint liberally, plaintiff may also allege that he was denied medical parole release without due process.”). 212. No. 06-4303 CVCNKL, 2007 WL 927742, at *2 (W.D. Mo. Mar. 23, 2007) (“Al- though plaintiff’s allegations may not be sufficient to withstand a motion to dismiss or for summary judgment, they are sufficient, when liberally construed, to allow plaintiff to proceed at this stage.”). 213. See Nance v. Kelly, 912 F.2d 605 (2d Cir. 1990) (per curiam). 214. No. 1:14-CV-01569-AWI, 2014 WL 7178217 (E.D. Cal. Dec. 16, 2014). 196 CREIGHTON LAW REVIEW [Vol. 54 court seemingly having to read into a petition, with the court stating Marks’s complaint—which it expressly noted comprised “nearly 400 pages”215—“appear[ed] to seek medical parole.”216 Cases also show prisoners using improper legal vehicles for raising their claim(s) or asking courts to act outside of their competence. For example, in Madsen v. Guyer,217 Madsen filed a petition for a writ of habeas corpus to request that the court order the Montana Depart- ment of Corrections to place his medical parole application before the Board of Pardons and Parole. Denying the petition, the court stated, “[h]abeas corpus relief is not the appropriate remedy for challenges to an inmate’s conditions of confinement,”218 and “[t]his Court does not direct the administration of parole applications before the Board or sit in review of the Board concerning parole and its process.”219 Haughie v. Blumberg220 provides another example. Haughie challenged the decision of the Maryland Parole Commission finding him ineligible for medical parole, seeking both monetary damages and an order requiring his release on medical parole.221 In dismissing the petition, the court commented on both the lack of cognizable/evidenced claims, and its lack of jurisdiction over directing state employees as requested.222 Further, in Polansky v Wrenn,223 a prisoner alleged a violation of due process in his medical parole proceedings, but the claim put forward was found to present “a distinct cause of action involving a different set of defendants, and issues that are largely unrelated to the claims presently pending in this action”224 and was therefore denied. Notably, across these cases, examples of the possible material implications of these lacunas in understanding also emerge. These include petitions being dismissed with prejudice,225 prisoners losing

215. Marks v. Johnson, No. 1:14-CV-01569-AWI, 2014 WL 7178217, at *1 (E.D. Cal. Dec. 16, 2014). 216. Marks, No. 1:14-CV-01569-AWI, 2014 WL 7178217, at *1. 217. No. OP 18-0699, 2018 WL 6845237 (Mont. Dec. 27, 2018). 218. Madsen v. Guyer, No. OP 18-0699, 2018 WL 6845237, at *1 (Mont. Dec. 27, 2018). 219. Madsen, No. OP 18-0699, 2018 WL 6845237, at *1 220. No. CV JFM-16-3201, 2016 WL 5477557 (D. Md. Sept. 29, 2016), aff’d in part, dismissed in part, 684 F. App’x 302 (4th Cir. 2017). 221. Haughie v. Blumberg, No. CV JFM-16-3201, 2016 WL 5477557, at *1 (D. Md. Sept. 29, 2016), aff’d in part, appeal dismissed in part, 684 F. App’x 302 (4th Cir. 2017). 222. Haughie, No. CV JFM-16-3201, 2016 WL 5477557, at *1-2. 223. No. 12-CV-105-PB, 2013 WL 1165158 (D.N.H. Feb. 22, 2013), report and recommendation adopted sub nom. Polansky v. N.H. Dep’t of Corr., No. 12-CV-105-PB, 2013 WL 1155429 (D.N.H. Mar. 19, 2013). 224. Polansky v. Wrenn, No. 12-CV-105-PB, 2013 WL 1165158, at *3 (D.N.H. Feb. 22, 2013), report and recommendation adopted sub nom., Polansky v. N.H. Dep’t of Corr., No. 12-CV-105-PB, 2013 WL 1155429 (D.N.H. Mar. 19, 2013). 225. E.g., Rodriguez , No. CIV. A. G-06-0768, 2008 WL 2403722; F.M. Simmons, No. CIV.A. 6:08CV304, 2009 WL 1350812; Foreman, TDCJ-CID, No. 6:11CV116, 2011 WL 5080180. 2021] REFORMING COMPASSIONATE RELEASE 197 opportunities to resolve matters more efficiently,226 and prisoners risking incurring financial penalties.227 Various recommendations for contributing to remedying gaps in understanding have been offered.228 A common thread across these ideas is the development of cross-cultural competencies, i.e., common understandings between agents involved in compassionate release procedures—who inherently have their own specific roles, training, and sensitivities. Fostering such cross-agency collaboration is of “practical importance”229 so as to limit conflicts, and to remedy the so- called “virtual black box between the initiation of consideration and the decision to release.”230 Developing such understanding is largely about signposting, creating and delivering education opportunities, and fostering collegial- ity, particularly as the latter relates to involving prisoners’ families in compassionate release procedures. Suggestions for reform include publicizing compassionate release information across relevant institutions, including the proactive signposting of procedure information to prisoners and families (e.g., the provision of “detailed description[s] and/or diagram[s]”231 that allow agents to follow case progress, and including relevant information in prison handbooks232); the provision of relevant resources (e.g., ensuring application forms are stocked in prison libraries233); education programs (led by healthcare professionals) for criminal justice system agents (such as prisoners, corrections personnel, and parole board members) about prisoner health(care) needs and the meaning of compassionate release eligibility criteria;234 and training for healthcare professionals (led by criminal justice system professionals) about the conditions of incarceration and the pressures faced by criminal justice agencies.235 Specific recommendations for ensuring that (1) lawyers are eligible petitioners in compassionate release cases236 and (2) the right to counsel includes “all compassion-

226. E.g., Austad, No. CV08-32H-DWM-JCL, 2008 WL 5416389 (noting that due to multiple failures by the plaintiff to amend his pleading properly, he had now lost the ability to amend his pleading without the consent of the opposing party or with leave of Court). 227. E.g., Marks, No. 1:14-CV-01569-AWI, 2014 WL 7178217, at *3 (noting possible fee implications for petitioner). 228. E.g., PRICE, supra note 3, at 21. 229.NAT’L RSCH. COUNCIL OF THE NAT’L ACADS., supra note 71, at 29. 230. Gartner & del Carmen, supra note 4, at 16. 231. Id. 232. PRICE, supra note 3, at 21. 233. Id. 234. See, e.g., NAT’L RSCH. COUNCIL OF THE NAT’L ACADS., supra note 71, at 28-29. 235. Id. 236.PRICE, supra note 3, at 21. 198 CREIGHTON LAW REVIEW [Vol. 54 ate release proceedings, including appeals and revocations”237 also exist. Our analysis of the case law generally supports the idea that this suite of reforms should be further explored.

IV. CONCLUSION

Compassionate release procedures typically allow prisoners to seek early release because of serious terminal, non-terminal, or age- related health issues.238 These procedures, common across U.S. justice systems, generally lack comprehensive reporting and tracking systems and internal appeals processes. These absences contribute to there being limited knowledge about, essentially, what petitioners and appellate authorities perceive as unfair in the context of compassionate release. This lack of knowledge frustrates evaluation of existing practices and the implementation of evidence-informed reform. Given medical parole is the most common method of compassionate release in the U.S, one strategy for generating knowledge—as reported in this paper—is to study medical parole-related petitions in U.S. courts. Based on the data set generated by the methods utilized in this paper, the authors suggest that such petitions can be mapped to four thematic areas where concerns about compassionate release practices already exist, namely: (1) eligibility and exclusions; (2) processes; (3) releasing authorities; and (4) support for petitioners. In sum, across these themes, case law reveals that petitioners have raised issues concerning frustrated access to the medical parole process, the denial of medical parole, irregularities in medical parole processes, improper application of eligibility and exclusion criteria, and inadequate medical care in prison. Judges generally dismiss petitions, relying on the high standards of proof required to prove eligibility and improper parole-board decision-making; the discretionary nature of parole; standards of review that are highly deferential to parole authorities; and a lack of properly legally postured claims. Based on an analysis of relevant case law in the context of existing concerns about compassionate release practices within each thematic area, the authors suggest particular issues for further investigation include the: 1. Scope of exclusion categories (specifically the appropriateness of both categorical exemptions and retrospective applicability);

237. Id. 238. See generally Cooper, supra note 1. 2021] REFORMING COMPASSIONATE RELEASE 199

2. Appropriateness of elevated standards of proof for eligibility (specifically in terms of evidence requirements, nuance, and flexibility); 3. Level of procedural safeguards integrated within parole procedures, specifically for medical parole cases (including internal appeal processes, and reporting and tracking systems); 4. Streamlining and clarity of processes (specifically in terms of expedited review requirements, the itemization of evidence requirements, and the responsibilities of process agents); and 5. Design and delivery of appropriate training, education, and support for agents across all institutions involved in compassionate release procedures (including a specific focus on supporting prisoners to develop and submit appropriate applications). Generally, these ideas add relative strength to existing calls for reform across these areas and ultimately bolster the view that—to properly serve the interests of both wider society and the large, ageing, and medically compromised prison population in the U.S.—compassionate release procedures require evidence-informed investment. 200 CREIGHTON LAW REVIEW [Vol. 54

APPENDIX

Case Pro Se Theme 1. Alexander v. Grounds, No. C 14-1928 EDL Yes Support for (PR), 2014 WL 5408407 (N.D. Cal. Oct. 22, Petitioners 2014). 2. Anderson v. Thompson, No. CIVA Yes Support for 6:09CV244, 2010 WL 817182 (E.D. Tex. Mar. Petitioners 4, 2010). 3. Aponte v. Board of Parole, No. Yes Support for 917CV0305GTSDEP, 2017 WL 8780766 Petitioners (N.D.N.Y. July 14, 2017). 4. Austad v. Schweitzer, No. CV08-32H-DWM- Yes Support for JCL, 2008 WL 5416389 (D. Mont. June 12, Petitioners 2008). 5. Baker v. State, No. A-12661, 2017 WL No Eligibility and 4570573 (Alaska Ct. App. Oct. 11, 2017). Exclusions 6. Barker v. Owens, 277 F. App’x 482 (2008). No Releasing Authorities 7. Bass v. Thomas, No. 2:13-CV-88-WHA, 2016 Yes Releasing WL 958906 (M.D. Ala. Feb. 18, 2016), report Authorities and recommendation adopted, No. 2:13-CV- 088-WHA, 2016 WL 958464 (M.D. Ala. Mar. 14, 2016). 8. Beal v. Ward, No. CIV-05-253-M, 2005 WL Yes Processes 1322877 (W.D. Okla. June 1, 2005). 9. Black v. New York State Board of Parole, No Releasing 920 N.Y.S.2d 744 (2011). Authorities 10. Byrd v. Commissioner of Correction, 171 No Support for A.3d 1103 (Conn. Ct. App. 2017). Petitioners 11. Davidson v. Maryland Parole Yes Eligibility and Commission, No. CIV.A. JFM-13-250, 2013 Exclusions WL 1830097 (D. Md. Apr. 30, 2013) 12. Dinkins v. Correctional Medical Services Yes Support for et al, No. 06-4303 CVCNKL, 2007 WL 927742 Petitioners (W.D. Mo. Mar. 23, 2007). 13. F.M. Simmons v. Cannon, No. CIV.A. Yes Releasing 6:08CV304, 2009 WL 1350812 (E.D. Tex. May Authorities; 12, 2009). Support for Petitioners 2021] REFORMING COMPASSIONATE RELEASE 201

Case Pro Se Theme 14. Foreman v. Director, TDCJ-CID, TDCJ- Yes Support for CID, No. 6:11CV116, 2011 WL 5080180 (E.D. Petitioners Tex. July 12, 2011), report and recommendation adopted, No. 6:11CV116, 2011 WL 5080174 (E.D. Tex. Oct. 24, 2011). 15. Gross v. Buescher, 791 F. Supp. 796 (E.D. Yes Support for Mo. 1992). Petitioners 16. Haughie v. Blumberg, No. CV JFM-16- Yes Releasing 3201, 2016 WL 5477557 (D. Md. Sept. 29, Authorities; 2016), aff’d in part, appeal dismissed in part, Support for 684 F. App’x 302 (4th Cir. 2017). Petitioners 17. Havens v. Johnson, 2012 WL 871195 (D. No Support for Colo. Mar. 13, 2012). Petitioners 18. Holm v. Salmonsen, 2018 WL 5001225 No Support for (Mont. Oct. 16, 2018). Petitioners; releasing authorities. 19. Ifill v. Wright, 941 N.Y.S.2d 812 (N.Y. App. Yes Releasing Div. 2012). Authorities 20. In re Martinez, 148 Cal. Rptr. 3d 657 (Cal. No Eligibility and Ct. App. 2012). Exclusions 21. Jewell v. Superior Court of San No Eligibility and Bernardino County, No. E065047, 2016 WL Exclusions 1535879 (Cal. Ct. App. Apr. 14, 2016). 22. Madsen v. Guyer, No. OP 18-0699, 2018 WL Yes Support for 6845237 (Mont. Dec. 27, 2018). Petitioners 23. Marks v. Johnson, No. 1:14-CV-01569-AWI, Yes Support for 2014 WL 7178217 (E.D. Cal. Dec. 16, 2014). Petitioners 24. McGiboney v. CCA Western Properties No Processes; Inc., 2016 WL 843253 (D. Idaho Mar. 1, Support for 2016). Petitioners 25. McGiboney v. Corizon, 2019 WL 3048339 Yes Releasing (D. Idaho July 11, 2019). Authorities; Support for Petitioners 26. Moore v. TDCJ, 2018 WL 4938796 (N.D. Yes Releasing Tex. Sept. 10, 2018). Authorities 27. People v. McCarty, No. A135608, 2013 WL No Eligibility and 1278503 (Cal. Ct. App. Mar. 29, 2013). Exclusions 202 CREIGHTON LAW REVIEW [Vol. 54

Case Pro Se Theme 28. Polansky v. Wrenn, No. 12-CV-105-PB, 2013 Yes Processes; WL 1165158 (D.N.H. Feb. 22, 2013), report Support for and recommendation adopted sub nom. Petitioners Polansky v. NH Dep’t of Corr., No. 12-CV-105- PB, 2013 WL 1155429 (D.N.H. Mar. 19, 2013). 29. Poydras v. Louisiana Dept. of Public Yes Processes; Safety and Corrections, 2012-1475 (La. Support for App. 1 Cir. Mar. 25, 2013), writ denied, 2013- Petitioners 1214 (La. Nov. 1, 2013), 125 So. 3d 424. 30. Reynolds v. Crawford, No. 206CV00009 Yes Releasing ERW, 2007 WL 586800 (E.D. Mo. Feb. 21, Authorities 2007). 31. Roberts v. Conley, No. 2:08CV00044 ERW, Yes Releasing 2009 WL 2170173 (E.D. Mo. July 20, 2009). Authorities 32. Rodriguez v. Johnson, No. CIV. A. G-06- Yes Support for 0768, 2008 WL 2403722 (S.D. Tex. June 10, Petitioners 2008). 33. State v. Alston, No. A-1664-08T4, 2010 WL No Eligibility and 2990898 (N.J. Super. Ct. App. Div. July 29, Exclusions 2010). 34. Tatta v. State, 290 A.D.2d 907, 737 N.Y.S.2d Yes Processes (2002). 35. Trobiano v. State of New York Div. of No Releasing Parole, 285 A.D.2d 812, 728 N.Y.S.2d 269 Authorities (2001). 36. Walls v. State, 158 A.3d 877 (2017). Yes Support for Petitioners 37. Wylie v. Montana Women’s Prison, No. CV Yes Processes 13-53-BLG-SEH, 2014 WL 1871825 (D. Mont. May 8, 2014). 203

FEDERAL-STATE PROGRAMS AND STATE—OR IS IT FEDERAL?—ACTION

MICHAEL E. ROSMAN†

Modern governmental programs increasingly involve government action that can be traced in some way to both the federal government and a state or local government. In the simplest situation, the federal government passes a law regulating the state, such as federal employment provisions that prohibit state employers from discriminating on the basis of prohibited criteria.1 Slightly more complicated is the situation where the federal government, through its spending power, offers state or local governments money in exchange for the state or local government promising to follow certain rules. What if a private citizen wants to challenge the government action resulting from one of these situations as unconstitutional or otherwise illegal? Who, exactly, is responsible for the action, and who should be sued? And have those defendants specifically violated a provision of the Bill of Rights (deemed applicable only to the federal government or action taken under color of federal law) or the Fourteenth Amendment (generally incorporating the Bill of Rights and deemed applicable to actions taken under color of state authority)? Can the same governmental action be said to have been taken under both color of state authority and color of federal authority? These questions do not admit of easy answers, and the United States Supreme Court has not tried. Indeed, the Court has suggested that state conduct taken in order to comply with a federal statute might be immune from constitutional attack, a result that would certainly be counterintuitive.2 Lower courts, on the other hand, have tried to determine whether the officials (be they state or federal) were acting under color of state authority or color of federal authority. These phrases—and the occasional citation of authority—seem to be taken from “state action” doctrine. In “state action” cases, or in cases involving the federal government which might be called “federal action” cases, courts try to determine whether the actions of individuals

† General Counsel, Center for Individual Rights. J.D., 1984, Yale Law School; B.A., 1981 University of Rochester. I thank Michael Greve, Will Baude, and Rob Gassa- way for insightful comments on earlier drafts of this Article. I own the errors. 1. E.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (upholding application of Title VII to state employment). 2. See infra notes 71-75 and accompanying text. 204 CREIGHTON LAW REVIEW [Vol. 54 who appear to be private citizens or organizations are attributable to a government. But there are several problems. First, “state action” cases involving apparently private individuals or organizations are not entirely clear. Second, the cases involving some combination of federal and state action, albeit using the language of the cases involving private persons and entities (like “color of state authority”) do not appear to be following them with great rigor. Indeed, it is often difficult to tell what they are doing. Getting it right, or at least understanding what the courts are doing, matters. In some contexts, the “who is responsible” question might determine whether a statute like 42 U.S.C § 19833 (“Section 1983”) (which applies only to action taken under color of state authority) is applicable and to what kind of relief the plaintiff is entitled.4 Part I of this Article lays out general principles of “state action” in instances where a private person or entity is said to have acted under color of state (or federal) authority. Part II identifies various challenges to governmental conduct that courts have addressed where both the federal and state government could reasonably be said to have been responsible in part for that action. Part III focuses more closely on anti-discrimination cases where this is true and the inscru- table “collateral attack” doctrine that has arisen in that area. Part IV suggests possible rationales for the seeming divergence between the usual “state action” principles and their application to federal-state programs and possible alternative approaches.

3. 42 U.S.C. § 1983 (1996) (“Every person who, under color of any statute, ordi- nance, regulation, custom, or usage, of any State or Territory . . . subjects . . . any . . . person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . .”). 4. E.g., King v. United States, 917 F.3d 409, 432-34 (6th Cir. 2019) (holding that plaintiff claiming unreasonable search and seizure by Grand Rapids, Michigan detective working full time with an FBI task force could only state a Bivens claim, and not one under 42 U.S.C. § 1983, despite fact that detective was searching for a state fugitive at time of incident); Billings v. United States, 57 F.3d 797, 801 (9th Cir. 1995) (holding that woman arrested by federal secret service agents and handed over to local sheriff’s officers could not state a claim under Section 1983 against either set of defendants because both were acting under color of federal authority); Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir. 1976) (holding that members of federal drug agency task force, some of whom were employees of the St. Louis Police Department, had not acted under color of state law and thus could not be sued under Section 1983). 2021] STATE—OR IS IT FEDERAL?—ACTION 205

I In general, public officials or employees acting in their official capacities are acting under color of governmental authority.5 There might occasionally be a rare exception to this rule,6 and there might be one or two cases where the nature of an entity might be ambiguous,7 but, for the most part, federal officials will be deemed to act under color of federal authority and state officials under color of state authority. Trickier questions come into play when a plaintiff claims that a private person or entity acted under color of governmental authority. The Court has identified a whole series of “tests” that it utilizes to determine whether a private party’s actions are properly attributed to a government, all of which are designed to determine whether “seemingly private behavior ‘may be fairly treated as that of the State itself.’”8 Indeed, the United States Court of Appeals for Ninth Circuit has claimed that the Supreme Court has seven different tests for determining state action,9 although the Supreme Court’s most recent opinion identified only three examples.10 Whatever the actual number, the Court itself has emphasized that the entire area requires substantial examination of the specific facts of each case, the ultimate aim of which is to ascertain whether seemingly private conduct is properly attributable to a government.11 Several of the tests are of interest to us here. First, private conduct can be attributed to the government when the government either

5. West v. Atkins, 487 U.S. 42, 50 (1988) (“Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.”). 6. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that, because of their unique duties, public defenders were not state actors for purposes of Section 1983). 7. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (holding that Amtrak was a federal entity acting under color of federal law despite Congress’s asser- tions, in its originating legislation, that Amtrak was private). 8. Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). 9. Florer v. Congregation Pidyon Shevuvim, 639 F.3d 916, 924 (9th Cir. 2011). 10. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (identifying as non-exclusive examples the following situations where a private entity can qualify as a state actor: (1) performance of a traditional, exclusive public function, (2) where the government compels the private entity to take a particular action, and (3) where the government acts jointly with a private entity or person). 11. Brentwood, 531 U.S. at 295 (“What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity.”); Lebron, 513 U.S. at 379 (O’Connor, J., dissenting) (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632 (1991)) (“It is fair to say that ‘our cases deciding when private action might be deemed that of the state have not been a model of consistency.’”); Reitman v. Mulkey, 387 U.S. 369, 378 (1967) (“Only by sifting facts and weighing circumstances on a case- by-case basis can a nonobvious involvement of the State in private conduct be attributed its true significance.”). 206 CREIGHTON LAW REVIEW [Vol. 54 has used its coercive power to require, or provided strong encouragement to induce, the ostensibly private conduct that is said to violate a third party’s rights.12 Although this is a commonly-repeated test, there are remarkably few Supreme Court cases that actually have applied it to uphold a claim of state action against a private person who was explicitly required by state law to engage in some conduct, and one circuit has expressed skepticism about the literal application of the test.13 In Adickes v. S.H. Kress & Co.,14 the Court held that a restaurant would engage in “state action” in refusing service to minor- ities if its policy emanated from a state-enforced custom of segregation, which the Court analogized to a state statute requiring such segregation.15 While this might seem counterintuitive—to hold a private party or entity liable simply for obeying a state or federal law or custom—the Court has never pulled back from this holding. Indeed, a state need not even require the private conduct in question; if the state provides “strong encouragement” to private action, that too can transform private conduct into state action.16 Thus, in Reitman v. Mulkey,17 which may be an extreme example of this phenomenon, the Court held that a state constitutional amendment, passed by initiative, that prohibited the state from denying any person’s right to de- cline or sell residential real property as he chose was a violation of the Equal Protection Clause because it “involved” the state in private landlords’ decisions to engage in racial discrimination.18 The case, though, came to the Supreme Court from a series of state court cases in which plaintiffs alleged race discrimination against private landlords under prior California law; the private landlords were defendants using the initiative as a defense to the claims. Of course, the “encouragement” process does not work in reverse, at least not usually. That is, the fact that a private person or entity encouraged the state to engage in a particular course of conduct does

12. Brentwood, 531 U.S. at 296. 13. Sutton v. Providence St. Joseph Medical Ctr., 192 F.3d 826, 841 (9th Cir. 1999) (holding that private hospital did not act under color of federal authority when it did not hire an applicant who refused to provide a social security number, as required by federal law, on religious grounds). “Supreme Court precedent does not suggest that governmental compulsion in the form of a generally applicable law, without more, is sufficient to deem a private entity a governmental actor.” Sutton, 192 F.3d at 841. 14. 398 U.S. 144 (1970). 15. Adickes v. S.H. Kress & Co., 398 U.S. 144, 162 (1970) (“For state action purposes it makes no difference of course whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law—in either case it is the State that has commanded the result by its law.”). 16. Brentwood, 531 U.S. at 296. 17. 387 U.S. 369 (1967). 18. Reitman, 387 U.S. at 380-81; see also Schuette v. Coalition to Defend Affirma- tive Action, 572 U.S. 291, 302-03, 304 (2014) (plurality op.) (so characterizing Reitman and Hunter v. Erickson, 393 U.S. 385 (1969)). 2021] STATE—OR IS IT FEDERAL?—ACTION 207 not render that conduct “private.” Thus, in National Collegiate Ath- letic Assn. v. Tarkanian,19 a private entity, the National Collegiate Athletic Association (“NCAA”) pressured a public university, Univer- sity of Nevada at Las Vegas (“UNLV”) to demote Tarkanian (the school’s basketball coach) for various violations of NCAA rules.20 The question in Tarkanian was whether the NCAA acted under color of state authority, and the Court answered “no.”21 But there was no question that UNLV was a state actor, despite it being pressured by a private entity.22 Indeed, UNLV was a defendant in the state court lawsuit, and the state court had issued an injunction (and attorneys’ fees) against UNLV that it did not appeal.23 And UNLV was deemed a state actor despite the fact that “[i]t would [have been] more appropriate to conclude that UNLV has conducted its athletic program under color of the policies adopted by the NCAA, rather than that those policies were developed and enforced under color of Nevada law.”24 There is some not-very-clear point at which the private conduct goes from merely setting guidelines for state entities to follow or applying pressure to adopt and apply those guidelines and becomes “joint conduct” with the state entity—and at that point the private party’s conduct can indeed be “state action.” In Dennis v. Sparks,25 a plaintiff alleged that a private party had engaged in an improper agreement that resulted in a judge issuing an injunction against the plaintiff precluding him from the production of minerals from oil leases he owned. Even though it was the judge that issued the injunction (later dissolved on appeal), the private party was nonetheless deemed to have acted under color of state authority.26 The four dis-

19.488 U.S. 179 (1988). 20. Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 186 (1988). The NCAA had imposed a two-year probation of UNLV “during which its basketball team could not participate in postseason games or appear on television . . . [and] requested UNLV to show cause why additional penalties should not be imposed . . . if it failed to discipline Tarkanian by removing him” from the basketball program during the probation period. Tarkanian, 488 U.S. at 186. 21. Id. at 199. 22. Id. at 193 (“Here the final act challenged by Tarkanian—his suspension—was committed by UNLV. A state university without question is a state actor.”); see also id. at 199 (White, J., dissenting) (“All agree that UNLV, a public university, is a state actor, and that the suspension of Jerry Tarkanian, a public employee, was state action.”). 23. Id. at 189. 24. Id. at 199. 25.449 U.S. 24 (1980). 26. Dennis v. Sparks, 449 U.S. 24, 31 (1980). The opinion did not focus on whether the conduct of the private individuals and entity were sufficiently entwined with the judge’s issuance of the injunction to constitute state action. Rather, that seemed to be assumed, and the focus was on whether the judge’s immunity precluded a finding that the private persons could be liable under 42 U.S.C. § 1983. 208 CREIGHTON LAW REVIEW [Vol. 54 senting judges in Tarkanian viewed Dennis as analogous, but the five in the majority disagreed.27 It is often said that the principles of “state action” apply equally to the federal government.28 This is fine when the issue is whether a private person or entity acted under color of federal authority, but it gets confusing when the actors are federal and state officials. When the federal government threatens to withhold money from a state, should it be viewed as analogous to the state that “strongly encourages” private conduct (thus making appropriate the conclusion that the state’s conduct was under color of federal authority)? Or is it more analogous to a private actor like the NCAA trying to influence the state (as in Tarkanian), under which the state action would be just state action, because the state, after all, can resist the temptation of federal money just as UNLV could leave the NCAA (or so the Court said)? And should the federal government be deemed to have acted under color of state authority (as in Dennis) under the theory that it has jointly acted with the state? Or is it just the organization that set the rules, like the NCAA in Tarkanian, and thus just acting only under color of federal authority and not responsible for the specific decision made by the state? These standards, and certainly the “strongly encourage” standard, are different from the standard that might make the federal law itself unconstitutional, which generally requires more coercion.29 That is, even if the federal government does not, either literally or

27. Compare Tarkanian, 488 U.S. at 197 n.17 (finding Dennis distinguishable because of the impropriety of the agreement to issue the injunction), with id. at 200 (White, J., dissenting) (finding the facts of Dennis “illustrative”), and id. at 202-03 (finding that Dennis implicitly rejected majority’s reasoning). 28. E.g., Brino v. JFK Medical Center Ltd. P’ship, 766 F. App’x. 921, 922-23 (6th Cir. March 21, 2019) (quoting Morast v. Lance, 807 F.2d 926, 931 (11th Cir. 1987)) (“[W]e apply the same analysis [to Section 1983 and Bivens claims] because the ‘concept of action under color of federal law for purposes of a Bivens action is almost identical to the doctrine of action under color of state law for purposes of a §1983 action.’”); Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015) (“We review Bivens and § 1983 actions under the same legal principles, except for the requirement of federal action under Biv- ens and state action under § 1983.”). 29. E.g., New York v. United States, 505 U.S. 144 (1992) (holding that federal law requiring a State to enact or administer a federal regulatory program was unconstitutional); South Dakota v. Dole, 483 U.S. 203, 211 (1987) (noting that Congress’s use of federal funds as an inducement might be so coercive as to be tantamount to compulsion). There are two relevant limits to the federal government’s ability to spend that are at issue in cases involving the expenditure of funds purportedly for the general welfare. First, the conduct being demanded from the state in exchange for federal funds cannot violate the Constitution. United States v. Am. Library Ass’n, 539 U.S. 194, 203 (2003) (finding that Congress may not induce a recipient of federal funds to engage in unconstitutional action). Second, regardless of the conduct being demanded, the consequences of refusing the federal funds cannot be so onerous that the state really has no choice but to comply. Nat’l Fed’n of Indep. Bus. v. Sibelius, 567 U.S. 519, 581 (2012). 2021] STATE—OR IS IT FEDERAL?—ACTION 209 practically, compel a state to engage in particular behavior, its use of federal funds might significantly encourage the state to engage in that behavior. Under those circumstances, the federal law would be constitutional, but the state might still be acting under color of federal authority and enjoined if its conduct violates a constitutional norm.30 What difference does it make if a government official or agency is acting under color of state or federal authority? Well, as the lower court cases addressing this issue suggest, it might affect who can be held liable for a constitutional violation and what remedy, including attorneys’ fees, can be obtained. Unfortunately, the cases do not make much of an effort to fit their analysis with existing doctrine, but seem more inclined to hold liable the party that happens to be in front of the court if the court feels that its behavior warrants some kind of deter- rent punishment.

II Cases addressing the questions I have identified involve various substantive areas. For purposes of this discussion, this Article focuses on who the Courts deem to be liable or potentially liable and why. In some instances both the federal and state entity are potentially liable and in other instances the courts only hold one liable. The question in many cases is whether there is liability under 42 U.S.C. § 198331 (“Section 1983”), the statute that provides liability for actions taken under color of state authority. A separate statute provides liability for attorneys’ fees and expenses for a violation of Section 1983.32 The first and perhaps most common situation where these questions arise is where the federal government indicates that federal funds are (or may be) conditioned on state government recipients taking a certain course of conduct. Thus, in Knights of the Ku Klux Klan,

30. But see Norwood v. Harrison, 413 U.S. 455 (1973) (holding that state funding of textbooks for private schools, when it included those that practiced segregation, violated the Fourteenth Amendment). Thus, in Norwood, the private conduct was not deemed to be state action, but a general state law for the promotion of education that assisted that conduct was nonetheless deemed unconstitutional. Interestingly, the parents of the students attending private schools argued that conditioning the moneys provided by the state textbook program on schools rejecting segregation would be an unconstitutional condition on their right to send their children to private school; the Court rejected that argument. Id. at 461-62. 31. 42 U.S.C. § 1983 (1996). 32. 42 U.S.C. § 1988(b) (2000). Section 1988(b) provides that, in an action under Section 1983 (among other statutes), “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Although Section 1988(b) appears to grant courts considerable discretion in determining whether to award an attorney’s fee as part of costs, the Supreme Court has held that a prevailing Section 1983 plaintiff is ordinarily entitled to a reasonable fee in the absence of special circumstances. Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989). 210 CREIGHTON LAW REVIEW [Vol. 54

Realm of Louisiana v. East Baton Rouge Parish School Bd.,33 a school board was about to let the Ku Klux Klan use school facilities for a rally when it received a communication from an official in the Office of Civil Rights of the Department of Health, Education, and Welfare (“HEW”) to the effect that permitting the Klan this use of facilities would violate various federal laws, including Title VI of the Civil Rights Act of 1964.34 After the school board withdrew its permission to the Klan, the HEW official helpfully sent a second communication essentially stating that, of course, the school board could not refuse use of its facilities for any reason that would violate the First Amendment.35 However, the local board did not change its position, and, after several months, adopted a policy that prohibited the use of school facilities by organizations that advocated racial discrimination. The Klan successfully sued both federal and state defendants for violation of its First Amendment rights.36 The Court held that the decision to deny use of the facilities—and risk the loss of federal funds—and the adoption of the policy was ultimately the Board’s and that it was liable under Section 1983 and responsible for attorneys’ fees under 42 U.S.C. § 1988.37 But the Court also upheld liability for attorneys’ fees against the federal government as well. In doing so, it affirmed the district court’s finding that there was a “conspiracy” between the federal and state officials to deny the Klan use of the school facilities and thus, presumably, that federal officials acted jointly with state officials.38 That being said, the Court rejected the federal gov-

33.735 F.2d 895 (5th Cir. 1984). 34. Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish Sch. Bd., 735 F.2d 895, 896-97 (5th Cir. 1984); see also 42 U.S.C. §§ 2000d et seq. 35. Ku Klux Klan, 735 F.2d at 897. 36. Id. at 900. Although federal defendants were not named in the initial complaint, they were added in an amended complaint a few weeks thereafter. Knights of the Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish Sch. Bd., 643 F.2d 1034, 1036 (5th Cir. 1981), vacated and remanded, 454 U.S. 1075 (1981). 37. Ku Klux Klan, 735 F.2d at 900 (“Whether the Board was willing to risk loss of federal funds to allow the Klan to hold their meeting, however, was a decision made under color of state law.”); see also Ku Klux Klan, 643 F.2d at 1040 (reversing district court’s refusal to award attorneys’ fees against the school board), vacated and remanded on other grounds, 454 U.S. 1075 (1981). Notwithstanding the pressures that the Board may have been under at the time it revoked its consent, and regardless of the extent to which it may be said the HEW’s actions encouraged the Board to act in that manner, it is beyond dispute that, after almost three months to reflect upon the problem, the Board alone formulated and enforced the policy that later was held unconstitutional . . . . Id. 38. Ku Klux Klan, 735 F.2d at 900. The Court found that, under the Equal Access to Justice Act, as amended in 1981, the federal government could be held liable for fees and expenses under Section 1988 if it was successfully sued for violating one of the statutes (including Section 1983) listed therein. Id. at 899-900; see 28 U.S.C. § 2412(b) (providing that a court may award “reasonable fees and expenses of attorneys . . . to the 2021] STATE—OR IS IT FEDERAL?—ACTION 211 ernment’s argument that its influence over the state officials was so pervasive that the school board actually acted under color of federal authority, rather than state authority—an argument which, if successful, would have precluded Section 1983 substantive liability and Section 1988 fees liability.39 Thus, the Ku Klux Klan case appears to follow a Dennis-like approach, but without the facts of Dennis (indeed, facts much more like Tarkanian). There was no conspiracy or agreement alleged between HEW and the school board as there was in Dennis. Rather, the federal official simply noted the possibility that permitting the Klan to use the school’s facility might violate federal law (unless, of course, that use was protected by the First Amendment). This appears to be a not uncommon approach, though, when state officials act under federal pressure. Courts frequently keep state actors on the hook for state action, and sometimes find that federal actors also acted under state authority through their influence. In Rose v. Heintz,40 the Second Circuit reversed a district court finding that a Connecticut Medicaid agency had acted under color of federal (rather than state) authority in terminating benefits for certain recipients.41 State officials had called and received confirmation that the termina- tion was in line with federal guidelines. After the lawsuit was filed, the federal government reversed itself in the face of a motion for a preliminary injunction; the state then announced that it would reverse itself, too, although it did not begin to reinstate improperly ter- minated individuals for another two months.42 The Court held that this was not sufficient to characterize the state’s conduct as taken under “federal authority,” because the state’s action was not “coerced” and because “[a] simple telephone inquiry without a written request for confirmation hardly seems responsible state action” under the cir-

prevailing party in any civil action brought by or against the United States” and that the liability will be “to the same extent that any other party would be liable under the common law or under the terms of [the] statute”). In other words, the federal government could be held liable for fees if it acted under color of state authority in violating someone’s constitutional rights. 39. Ku Klux Klan, 735 F.2d at 900. Curiously, the school board did not make this argument and apparently did not appeal at all. Id. at 896. The caption of the case in the official reporter lists the school board as the “defendant-appellee.” Id. at 895. This is likely because the district court had assessed 90% of the Klan’s fees against the United States. Id. at 897. The Court did not explain precisely how the affirmance of this division of the fees between the state and federal defendants was consistent with its conclusion that the Board was ultimately responsible for its decision and the promulga- tion of its policy. See id. at 900 (“Whether the Board was willing to risk loss of federal funds to allow the Klan to hold their meeting, however, was a decision made under color of state law.”). See supra note 37 and accompanying text. 40. 806 F.2d 389 (2d Cir. 1986). 41. Rose v. Hientz, 806 F.2d 389, 390 (2d. Cir. 1986). 42. Rose, 806 F.2d at 391. 212 CREIGHTON LAW REVIEW [Vol. 54 cumstances.43 In Tongol v. Usery,44 state officials were applying a federal regulation (precluding states from waiving the recoupment of overpayments under a federal law providing for additional unemploy- ment payments), and the United States Court of Appeals for the Ninth Circuit nonetheless held that they were acting under color of state authority.45 Smith v. Puett,46 involved the Aid to Family with Depen- dent Children program; the federal government refused to permit aid to children who were living with the relative of a natural father where the natural father had not legitimated the children.47 Indeed, the state (Tennessee) proposed a plan to assess the “blood” relationship between the children and the relative, but the Acting Regional Com- missioner of the Department of Health, Education, and Welfare rejected the plan and it was undisputed that Tennessee risked federal matching funds for the AFDC program if it went ahead with its plan.48 Yet despite concluding that “HEW has mandated that the State of Tennessee conform to [its] interpretation,”49 the court nonetheless found that the state officials had violated Section 1983 because the state agency responsible for implementing AFDC in Tennessee “failed to seek a declaratory judgment, a remedy which could have been pursued by its salaried attorneys.”50 The foregoing cases did not make any finding of liability against the federal defendants. In Savage v. Toan,51 however, the District Court for the Western District of Missouri had concluded (mistakenly, as it turns out) that the federal government had violated the Medicaid statute when it pressured the state regulators to count income of mi- nors’ stepparents in determining Medicaid eligibility.52 The court (relying on the Fifth Circuit’s Ku Klux Klan case) held that the federal defendants had acted under color of state authority and were liable

43. Id. at 392. The decision in Rose v. Heintz would seem to be in tension with an earlier Second Circuit decision, Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981). See infra notes 60-64 and accompanying text. 44. 601 F.2d 1091 (9th Cir. 1979). 45. Tongol v. Ursery, 601 F.2d 1091, 1097-98 (9th Cir. 1979). 46. 506 F. Supp. 134 (M.D. Tenn. 1980). 47. Smith v. Puett, 506 F. Supp. 134, 138 (M.D. Tenn. 1980). 48. Smith, 506 F. Supp. at 138. 49. Id. at 141. 50. Id. at 146. Because the Equal Access to Justice Act had not yet been amended, the federal government could not be held liable under Section 1988. Id.; see also Ku Klux Klan, 735 F.2d at 899-900 (finding that, under the Equal Access to Justice Act, as amended in 1981, the federal government could be held liable for fees and expenses under Section 1988). 51. 636 F. Supp. 156 (W.D. Mo. 1986). 52. Savage v. Toan, 636 F. Supp. 156, 157 (W.D. Mo. 1986). The Eighth Circuit subsequently reversed the district court’s substantive interpretation of the relevant statute. Savage v. Toan, 795 F.2d 643 (8th Cir. 1986) (concluding that regulation was consistent with statute). 2021] STATE—OR IS IT FEDERAL?—ACTION 213 under Section 1983 “by pressuring the State defendants to violate plaintiffs’ Medicaid rights.”53 It specifically cited the Supreme Court’s decision in Dennis v. Sparks, thus drawing the analogy between the federal government’s pressure and the act of “bribing or blackmailing a state official to violate the plaintiffs’ protected rights.”54 The cases perhaps reflect a judicial preference for holding governmental officials liable under Section 1983, and thus liable for fees, rather than a careful analysis of relevant Supreme Court cases on “state action.”55 Surely, the federal government’s advice and instructions in these cases should constitute “strong encouragement” for the actions taken by state officials. Yet, the courts do not much discuss why such substantial encouragement does not render the state officials acting under color of federal law. The basic thrust of the cases seems to be to find some flaw in the state’s conduct, like the failure to check twice or to fight back against the federal government. Further support for the proposition that these courts have read “state action” precedents to maximize plaintiffs’ recovery is their not permitting “federal pressure” to absolve the state of liability for fees for other reasons, like the existence of a “special circumstance.”56 Some courts have found that federal influence was sufficient to render state employees acting pursuant to the federal government’s rule acting under color of federal law.57 These cases, though, involve more than the federal government attempting to use its funds to

53. Savage, 636 F. Supp. at 158; see also Schrader v. Idaho Dept. of Health & Wel- fare, 631 F. Supp. 1426, 1429 (D. Idaho 1986) (holding that both state and federal defendants were liable under Section 1983 for implementing a federal policy against permitting a “grace period” for the sale of illiquid assets in determining income under the AFDC program and liable for attorneys’ fees under Section 1988). In Schrader, the Court found “that the federal defendants’ threats of defunding meet the requirements to find state action and a violation of Section 1983. Therefore, the federal defendant is subject to attorney’s fees pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 2412(b).” Schra- der, 631 F. Supp at 1429. 54. Savage, 636 F. Supp. at 158. 55. See Smith, 506 F. Supp. at 146 (assessing fees against the state defendants for failing to seek a declaratory judgment against the federal government and noting that “to fail to award counsel fees against the federal government in a case such as this frustrates the basic purpose of . . . Section [1988]” but acknowledging that “the federal treasury cannot be reached at this point in our history”). The Equal Access to Justice Act was amended in 1981. Ku Klux Klan, 735 F.2d at 899-900. 56. E.g., Martin v. Heckler, 773 F.2d 1145, 1150 (11th Cir. 1985) (en banc) (holding that the fact that “the state merely acted pursuant to federal regulation” was insufficient to constitute a “special circumstance” precluding an award of fees to plaintiff against state defendants); Savage, 636 F. Supp. at 157 (same); see supra note 32. Mar- tin, though, left open the possibility that the state defendants there had acted under color of federal authority. 773 F.2d at 1154-55. 57. E.g., Rosas v. Brock, 826 F.2d 1004, 1007 (11th Cir. 1987); Ellis v. Blum, 643 F.2d 68, 83 n.17 (2d Cir. 1981). In Rosas, the Eleventh Circuit held that the state employees could only be sued under Section 1983, and thus affirmed the dismissal of the claims against them. Rosas, 826 F.2d at 1007. Since plaintiff alleged that the defend- 214 CREIGHTON LAW REVIEW [Vol. 54 achieve a particular result from state employees. Rather, they involved instances where the federal government actually contracted with a state agency to implement the distribution of benefits under a federal program.58 Of course, the Supreme Court has analogized Con- gress’s exercise of its spending power to influence the activity of states to a contract.59 So, if not exactly the same as terms of an explicit written contract requiring implementation of a federal program, regulations regarding the proper understanding of a federal spending statute still come pretty close. The United States Court of Appeals for the Second Circuit’s decision, Ellis v. Blum,60 holding that state officials acted under color of federal law deserves closer attention. There, a New York State agency had contracted with the federal department of Health and Human Services to determine eligibility for disability benefits under Title II of the Social Security Act (Old Age, Survivors, and Disability Insur- ance).61 The plaintiff alleged that the procedures that state officials used to cut-off her benefits violated due process.62 One of those procedures, telephonic communication, was specifically authorized by federal guidelines; the written communications allegedly did not comply with federal guidelines.63 The Second Circuit held that the state employees were all acting under color of federal authority; it did not dis- tinguish between the authorized procedure and the ones allegedly unauthorized.64 This will be of some consequence later as we consider the cases holding that state officials cannot be sued at all for procedures consistent with federal guidelines under something called the “collateral attack” doctrine.

ants’ acts violated the Constitution, it is unclear why a claim could not be maintained against them even acting under color of federal law for such violations. Id. at 1006-08. 58. Rosas, 826 F.2d at 1006; Ellis, 643 F.2d at 70. 59. E.g., Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“[L]egislation enacted pursuant to the spending power is much in the nature of a contract.”). 60. 643 F.2d 68 (2d Cir. 1981). 61. Ellis, 643 F.2d at 70. 62. Id. at 72. In fact, her benefits were not ever permanently cut off; she sued for the emotional distress incurred by temporary cut-offs and the threats of a cut-off. Id. at 71-72. 63. Id. at 72. 64. Id. at 76, 83. The Court held that the state defendants could be sued under a Bivens theory, which provides that individuals unreasonably violating someone else’s constitutional rights under color of federal law can be sued for any resulting damages. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); see also Chilicky v. Schweiker, 796 F.2d 1131, 1135 n.3 (9th Cir. 1986) (holding that a state official had acted under color of federal authority in terminating or threatening to terminate disability benefits under either OASDI or Supplement Security Income program). 2021] STATE—OR IS IT FEDERAL?—ACTION 215

III Another context in which the federal government has tried, at times, to play a role in state policy leading to constitutionally questionable policies is in the area of civil rights. We already have seen one such instance in the Ku Klux Klan case.65 This section describes civil rights cases involving anti-discrimination norms. Under Section 5 of the Voting Rights Act, certain designated jurisdictions were precluded, for all practical purposes, from implementing any change to a voting qualification or a standard practice or procedure with respect to voting without preapproval by the U.S. At- torney General or preclearance by the U.S. District Court for the Dis- trict of Columbia.66 In Miller v. Johnson,67 the State of Georgia, one of the designated jurisdictions, sought preclearance of a congressional redistricting plan from the Department of Justice (“DOJ”). The DOJ wanted Georgia to maximize the number of majority-minority districts (those that had a majority of African Americans), and, after the DOJ refused to preclear several plans that did not meet that goal, Georgia caved in and submitted one that did.68 White residents of one of the majority-black districts filed an action against state officials, claiming that the redistricting violated the Equal Protection Clause of the Fourteenth Amendment, and the United States intervened.69 The Court agreed that the redistricting was race-based, failed strict scrutiny, and violated the Constitution.70 The Court never addressed whether the state officials were engaged in state action, although it raised several issues tangential to it. The Court raised the possibility that compliance with the Voting Rights Act might be a compelling governmental interest, but concluded that it was not necessary to decide that issue because the DOJ’s black-maximization policy was not necessary to comply with Section 5.71 The Court also rejected the state officials’ argument that

65. See supra notes 33-39 and accompanying text. 66. 52 U.S.C. § 10304. In Shelby County v. Holder, 570 U.S. 529 (2013), the Court found that Congress’s selection of jurisdictions to receive this additional burden violated the Constitution. 67. 515 U.S. 900 (1995). 68. Miller v. Johnson, 515 U.S. 900, 907-08 (1995); see also Miller, 515 U.S. at 917 (quoting Johnson v. Miller, 864 F. Supp. 1354, 1366, n.11 (1994)) (noting district court’s finding that “nothing less than abject surrender” would satisfy the Justice Department’s maximization agenda”); Id. at 921 (“There is little doubt that the State’s true interest in designing the Eleventh District was creating a third majority-black district to satisfy the Justice Department’s preclearance demands.”). 69. Id. at 909. 70. Id. at 920, 927. 71. Id. at 921-22; see, e.g., Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 801 (2017) (assuming without deciding that compliance with Section 5 of the Vot- ing Rights Act would be a compelling governmental interest and identifying other cases 216 CREIGHTON LAW REVIEW [Vol. 54 complying with the DOJ’s policy was itself a compelling governmental interest sufficient to satisfy strict scrutiny under the Constitution.72 The Court refused to give deference to the Justice Department’s interpretation of Section 5, and further noted, somewhat oddly and without explanation, that the DOJ’s “implicit command that States engage in presumptively unconstitutional race-based districting brings the [Voting Rights] Act . . . into tension with the Fourteenth Amendment.”73 Reference to the Fourteenth Amendment (applicable only to the states) suggests that action taken by the States at the federal government’s insistence would nonetheless be “state action,” rather than federal action. Why that would be so, though, the Court did not state. Nor did it explain why compliance with Section 5 possibly could justify action that otherwise would be unconstitutional. One would presume that if the federal government required unconstitutional conduct, a state’s compliance would just be unconstitutional conduct under color of federal authority.74 This brings us to the equally mysterious “collateral attack” doctrine that courts have used to preclude challenges to federal laws (or guidelines) being implemented by state actors.75 It seems to have originated in the United States Court of Appeals for the Seventh Cir- cuit in a case involving the distribution of federal highway funds and preferences for “disadvantaged business enterprises,” in which a racial presumption was used to qualify as disadvantaged.76 According

in which that same assumption was made). In Bethune-Hill, the Court actually upheld a district’s boundaries using that assumption, apparently because the plaintiffs in that case had not disputed the proposition. Bethune-Hill, 137 S. Ct. at 795-96, 801. In par- tial dissent, Justice Thomas argued that in all prior cases in which the assumption was made, the Court nonetheless held that the district’s boundaries were not actually required to comply with Section 5, and that it was inappropriate to merely assume the existence of a compelling governmental interest on the way to upholding a district’s boundaries against a constitutional challenge. Id. at 804 (Thomas, J., dissenting) (“I know of no other case, in any context, in which the Court has assumed away part of the State’s burden to justify its intentional use of race. This should not be the first.”). Since Justice Thomas believed that Section 5 was unconstitutional, he would not have upheld compliance with it as a compelling governmental interest. Id. at 805 (Thomas, J., dissenting). 72. Miller, 515 U.S. at 922. 73. Id. at 927. 74. Georgia v. Ashcroft, 539 U.S. 461, 491 (2003) (Kennedy, J., concurring) (“There is a fundamental flaw . . . in any scheme in which the Department of Justice is permitted or directed to encourage or ratify a course of unconstitutional conduct in order to find compliance with a statutory directive.”). 75. The “collateral attack” doctrine discussed here is different from the “collateral attack” doctrine that was rejected by the Supreme Court in Martin v. Wilks, 490 U.S. 755 (1989). The “collateral attack” doctrine rejected in Martin held that action taken pursuant to a consent decree or other final judgment in a case could not be challenged by non-parties to that litigation. Martin v. Wilks, 490 U.S. 755, 765 (1989). 76. Milwaukee Cty. Pavers Ass’n v. Fiedler, 922 F.2d 419 (7th Cir. 1991). The federal program was the Surface Transportation and Uniform Relocation Assistance Act of 2021] STATE—OR IS IT FEDERAL?—ACTION 217 to the Court, the plaintiff contractors did not challenge the federal law on its face or as applied,77 although this seems a rather ungenerous interpretation of their argument. Plaintiffs argued that the state should not have applied for funds that would have required it to discriminate and/or should have applied for an exemption from the set aside requirement.78 This would appear to be either an argument that the state violated the Fourteenth Amendment by applying for funds that required it (without a waiver) to discriminate without an adequate predicate of past discrimination and/or an argument that the federal statute was unconstitutional as applied in violation of the Fifth Amendment to the extent that it funded a state like Wisconsin (the state in question) that lacked an adequate predicate. The Court nonetheless held that the state actors were only acting as agents of the federal government and could not be enjoined.79 The federal law, the Court said, authorized state actors to take money and the state participation was thus “action pursuant to a valid authorization” which was itself “valid.”80 Because the plaintiffs (according to the court) were not challenging the set-aside program, and because the state actors were doing “what the statute and regulations envisage and permit, the attack on the state is an impermissible collateral attack on the statute and regulations.”81 The “collateral attack” doctrine then moved to the Title IX arena, specifically involving cases challenging the “three-part test” employed by the Department of Education to assess whether educational organizations that received federal funds were in compliance with Title IX’s prohibition of sex discrimination in the operation of their sports departments.82 The “three-part test” was guidance issued by the De-

1987, which offered states financial assistance with highway construction but required them to set aside 10% of the amounts appropriated to business concerns owned and controlled by socially and economically disadvantaged individuals. Milwaukee Cty. Pav- ers, 922 F.2d at 422-23. The Seventh Circuit affirmed an injunction against a parallel state program that did not receive federal funds on the ground that the state (Wiscon- sin) had not demonstrated the necessary predicate of past discrimination to justify a set aside. Id. at 422. 77. Id. at 423. 78. Id. 79. Id. 80. Id. 81. Id. at 424; see also Tennessee Asphalt Co. v. Farris, 942 F.2d 969, 975 (6th Cir. 1991) (holding that Congress has the authority to enact the 10% set aside in the Surface Transportation and Uniform Relocation Assistance Act and that Tennessee’s participation did not violate the Equal Protection Clause). It deserves mention that both Mil- waukee Pavers and Tennessee Asphalt were decided at a time where the Supreme Court used a lower level of scrutiny to assess race-conscious programs implemented by Con- gress than it used for race-conscious programs implemented by a state or locality. See Tennessee Asphalt, 942 F.2d at 974-75. 82. See Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979). 218 CREIGHTON LAW REVIEW [Vol. 54 partment of Health, Education, and Welfare in 1979, and clarified by its successor in overseeing education programs, the Department of Ed- ucation, in 1996.83 The guidance describes how the Department would interpret its own regulations identifying “effective accommodation” of each sex’s interests and abilities as a factor in determining whether the fund recipient was providing equal athletic opportunities for each sex.84 The “three-part test” identified three ways that federal fund recipients could comply with Title IX and its regulations with respect to its sports departments: fund recipients (1) could provide athletic opportunities to men and women in proportion to their population at the institution, (2) could provide continuing expansion of athletics opportunities for the underrepresented sex (the one whose proportional opportunities were less than its proportion of the student population), or (3) could provide athletic opportunities that completely satisfied the interests of the underrepresented sex.85 When colleges and universities began (or were forced) to cut men’s sports teams to meet the first of these three safe harbors, those adversely affected claimed that the second and third parts of the three-part test were so difficult and expensive to meet, that it incentivized fund recipients to

83. U.S. DEP’TOF EDUC., CLARIFICATION OF INTERCOLLEGIATE ATHLETICS POLICY GUIDANCE: THE THREE-PART TEST, Dear Colleague Letter (Jan. 16, 1996), https:// www2.ed.gov/about/offices/list/ocr/docs/clarific.html [hereinafter Dear Colleague Letter]. 84. 34 C.F.R. § 106.41(c)(1) (1974) (stating that one factor in determining whether a fund recipient provides equal athletic opportunities is “[w]hether the selection of sports and level of competition effectively accommodate the interests and abilities of members of both sexes”). “Although Section 106.41(c) lists nine other factors” that should be considered in determining whether fund recipients have provided equal opportunities, courts have held that the failure to effectively accommodate the interests and abilities of each sex is sufficient to find a violation of Title IX. Kelley v. Bd. of Trustees, Univ. of Illinois, 35 F.3d 265, 267 (7th Cir. 1994) (finding that “an institution may violate Title IX solely by failing to accommodate effectively the interests and abilities of student athletes of both sexes”). But see Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930 (D.C. Cir. 2004) (describing the guidance in the 1996 clarification thusly: “institutions may comply with the Three-Part Test by meeting any one of the three prongs and . . . the Three-Part Test is only one of many factors the Department examines to assess an institution’s overall compliance with Title IX and the 1975 Regu- lations”). While the first part of the statement from National Wrestling Coaches Ass’n is plainly an accurate description of the Clarification, the second part is arguable. See Dear Colleague Letter, supra note 83 (“It is important to note that under the Policy Interpretation the requirement to provide nondiscriminatory participation opportunities is only one of many factors that OCR examines to determine if an institution is in compliance with the athletics provision of Titile IX. . . . An institution’s failure to provide nondiscriminatory participation opportunities usually amounts to a denial of equal athletic opportunity because these opportunities provide access to all other athletic benefits, treatment, and services.”). 85. Cohen v. Brown Univ., 101 F.3d 155, 166 (1st Cir. 1996) (quoting 44 Fed. Reg. at 71,418 (1979)). The Department of Education’s clarification was issued on January 16, 1996, and, according to at least one court, emphasized that the substantial proportionality element of the first prong was a “safe harbor.” Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 613 n.4 (6th Cir. 2002). 2021] STATE—OR IS IT FEDERAL?—ACTION 219 meet the first part, and that the first part was essentially a quota or preference for the “underrepresented” sex.86 The Seventh Circuit considered a challenge to the elimination of a men’s swimming program at the University of Illinois alleging a violation of both Title IX and the Constitution.87 The court rejected the challenge under Title IX, holding that the University was justified in eliminating the men’s swimming team under the three-part test and that the three-part test was a reasonable interpretation of the relevant regulation to which deference was owed.88 Turning to the constitutional challenge, the court, relying upon its prior federal highway funds decision, held that the University was only trying to comply with federal law, and, thus, “plaintiff’s attack on those actions is merely a collateral attack on the statute and regulations and is therefore impermissible.”89 The United States Court of Appeals for the Sixth Circuit rejected a similar complaint by the men’s wrestling, soccer, and tennis teams

86. Or, to put it another way, challengers claimed that “equal representation” in athletics should mean providing athletic opportunities for each sex, as a proportion of total athletic opportunities, equal to the proportion of each sex in the part of the student population that was interested and inclined in athletics. This was, of course, different from the “equal representation” implied by the first part of the three-part test, under which “equal representation” focused on having athletic opportunities for each sex, as a proportion of total athletic opportunities, equal to the proportion of each sex at the institution. If one sex had greater skills and interests than the other, the percentage of athletic opportunities to meet DOE’s definition of equal representation for that sex would be less than the percentage needed to meet the challengers’ definition. Con- versely, the percentage of athletic opportunities for the other sex would be greater under the DOE definition of equal representation than it would under the challengers’ definition. 87. Kelley v. Bd. of Trustees, Univ. of Ill., 35 F.3d 265 (7th Cir. 1994). The Univer- sity had also eliminated the men’s fencing, and the men’s and women’s diving teams. Given the court’s conclusion that men’s participation in athletics was “more than substantially proportionate to their presence in the University’s student body” even after eliminating the teams, Kelley, 35 F.3d at 270, it would seem that the elimination of the women’s diving team may have violated Title IX as the court interpreted it. The court did not address this issue. 88. Id. at 271. In reaching this conclusion, the court noted that the three-part test “does not . . . mandate statistical balancing” but “merely creates a presumption that a school is in compliance with Title IX and the applicable regulation when it achieves such a statistical balance.” Id. This conclusion relied upon the other parts of the three- part test (the history and continuing practice of expansion or the full accommodation of the underrepresented sex). Id. 89. Id. at 272. Perhaps for good measure, the court went on to reject an argument that the applicable regulations were themselves unconstitutional because they were sex-conscious, the court holding that they were a reasonable effort by Congress to implement remedial measures to correct the effects of past discrimination. Id. The decision did not explain what part of Title IX itself required sex-conscious decision-making. See id. (stating that Title IX’s “avowed purpose is to prohibit education institutions from discriminating on the basis of sex”); see also Cohen, 101 F.3d at 170 (“Title IX is not an affirmative action statute; it is an anti-discrimination statute, modeled explicitly after another anti-discrimination statute, Title VI.”). 220 CREIGHTON LAW REVIEW [Vol. 54 at Miami University.90 Plaintiffs alleged in the alternative that the university violated Title IX and the Equal Protection Clause of the Fourteenth Amendment if they acted under color of state law or that they acted under color of federal law and violated the Fifth Amend- ment Due Process Clause if their actions were consistent with Title IX. Following the Seventh Circuit, the court held that the university acted in an attempt to comply with Title IX and thus the effort to allege a violation of the Constitution was an impermissible collateral attack.91 This “collateral attack” bar is odd, to say the least. Given the state action doctrine discussed earlier, one would have thought that a person—state actor or private person—encouraged by federal authority to engage in particular action that would be a violation of the U.S. Constitution if performed directly by a federal official could be sued for that violation.92 Thus, the immediate question raised by the “collateral attack” bar is “collateral to what”? Saying that someone followed a federal rule and violated the Constitution is a direct legal challenge to the rule that was followed, just as the lawsuit against the restaurant in Adickes was a direct challenge to the state custom requiring separation of the races at lunch counters. As noted earlier, in Ellis v. Blum, the Second Circuit concluded that a state official could be sued for damages in a Bivens action for following a telephonic procedure for terminating disability benefits that the Secretary of Health and Human Services had specifically approved.93 And, presumably, if a federal law conditioned school aid on recipients’ adoption of race-conscious busing plans, regardless of whether any particular recipient had a history of de jure segregation, it is hard to believe that any challenge to the adoption of the busing plan in a jurisdiction without such history would be dismissed on the ground of it being a “collateral attack” on the federal law.94

90. Miami Univ. Wrestling Club, 302 F.3d 608. In the interest of full disclosure, I represented plaintiffs in this lawsuit. 91. Id. at 614. The court said that the question of whether the three-part test was unconstitutional was “not before us in this lawsuit.” Id. 92. One author has suggested that a university’s adherence to the procedures for resolving a complaint of sexual assault should be deemed federal action given another Dear Colleague Letter from the federal Department of Education, this one outlining what it deemed appropriate procedures for such claims required by Title IX. Andrew R. Kloster, Student and Professorial Causes of Action Against Non-University Actors, 23 GEO. MASON U. C.R. L.J. 143, 162 (2013) (arguing that Stanford University “act[ed] on behalf of the federal government, thus becoming a classic example of a ‘state actor’” during certain disciplinary hearings). Of course, in an action seeking damages for past violations, an individual might have qualified immunity if following an apparently-valid federal rule or guideline. 93. Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981). 94. See People Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (holding that student transfer plans designed to increase racial balance in 2021] STATE—OR IS IT FEDERAL?—ACTION 221

The irony, at least insofar as the three-part test cases are concerned, is that courts have not been particularly receptive to a non- collateral or, for that matter, any other kind of attack. In Cohen v. Brown University,95 Brown was sued by two women’s athletic teams that had been (along with two men’s teams) demoted from university- funded varsity status to donor-funded varsity status.96 Brown tried to defend itself by arguing that the three-part test was unconstitutional in that it required quotas. The court rejected that argument as a factual matter.97 That is, it held that Brown (and other institutions in its position) was not required to cut men’s teams and anything less than such a requirement precluded any challenge to the three-part test.98 And when groups of men’s wrestling coaches, athletes, and alumni sued the Department of Education directly attacking the three-part test as a violation of the equal protection component of the Fifth Amendment Due Process Clause and Title IX itself, the United States Court of Appeals for the District of Colombia held that they had no standing because there was no guarantee that a favorable judgment declaring the three-part test unconstitutional, or in violation of Title IX, would cause colleges and universities to start funding men’s wrestling teams.99 It further held that the plaintiffs had an adequate remedy under Title IX in that they could sue individual colleges and universities.100

schools violated Fourteenth Amendment); Milliken v. Bradley, 418 U.S. 717 (1974) (holding that the absence of de jure segregation violating the Constitution precluded a remedial plan involving cross-district busing). 95. 101 F.3d 155 (1st Cir. 1996). 96. Cohen, 101 F.3d at 161. Donor-funded varsity teams had to raise the funds necessary through private donations to support their teams. Id. at 162-63. 97. Id. at 170-71 (“No aspect of the Title IX regime at issue in this case—inclusive of the statute, the relevant regulation, and the pertinent agency documents—mandates gender-based preferences or quotas, or specific timetables for implementing numerical goals. . . . [T]he question of substantial proportionality under the Policy Interpretation’s three-part test is merely the starting point for analysis, rather than the conclusion; a rebuttable presumption rather than an inflexible requirement.”). 98. Brown raised this issue in the context of a lawsuit alleging that it violated Title IX, but presumably it could have sued the federal government if it believed that it was being induced to engage in illegal conduct, much as the American Library Association sued the United States contending that a federal law requiring software filters would violate the First Amendment rights of its patrons. See United States v. Am. Library Ass’n, 539 U.S. 194, 203 (2003) (finding that Congress may not induce a recipient of federal funds to engage in unconstitutional action). But, again, such lawsuits appear to require more than that the law encourages the challenged behavior. Cf. Monterey Mechanical, Inc. v. Wilson, 125 F.3d 702, 707 (9th Cir. 1997) (“A person required by the government to discriminate by ethnicity or sex against others has standing to challenge the validity of the requirement, even though the government does not discriminate against him.”). 99. Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 939 (D.C. Cir. 2004). 100. Nat’l Wrestling Coaches, 366 F.3d at 948. 222 CREIGHTON LAW REVIEW [Vol. 54

Taken together, the cases involving the three-part test seem rather confused about who is responsible for the elimination of men’s sports teams. To be sure, the universities and colleges make independent decisions—certainly, about which men’s teams should be cut (men’s swimming or men’s wrestling). But to the extent those decisions are made under the background of a federal rule that strongly encourages proportionality (based upon the demographics of the entire undergraduate population) between men’s and women’s sports— because the first prong of the three-part test is the simplest and least expensive to meet101—they are state action more akin to the state action of the University of Las Vegas in Tarkanian, i.e., ones made under substantial pressure.102 And the substantial pressure suggests that they are also acting under color of federal authority. Those challenging the rules, though, are arguing that individual decisions made by those universities and colleges are discriminatory and, because they are being influenced by the three-part test, are unconstitutional. If the principles of the state action cases involving private parties were applicable—that is state “strong encouragement” of private action is sufficient to make it state action—then surely the decisions are made under color of federal authority and should be enjoined if they violate the Constitution. Claiming that the challenge is a “collateral attack” on the federal guideline appears to be a dodge to avoid deciding the substantive issue.

IV Cases addressing what I have loosely characterized as federal- state programs have several key features. First, the problem of

101. B. Glenn George, Fifty/Fifty: Ending Sex Segregation in School Sports, 63 OHIO ST. L.J. 1107, 1117 (2002) (“As a practical matter, these alternatives have been interpreted and applied by the courts in such a way as to leave only the first alternative—proportionality—as a legally viable option.”). 102. Indeed, state colleges and universities arguably have very few options given the broad scope of “receiving federal funds” applicable under statutes like Title IX. Grove City College v. Bell, 465 U.S. 555, 573-74 (1983) (holding that the receipt of basic federal educational grants to students was the receipt of federal funds for purpose of Title IX but did not subject the college to that statute outside of the financial aid program); Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 553 (3d Cir. 2017) (noting that Congress amended Title IX in the Civil Rights Restoration Act of 1987, making its non- discrimination rule applicable in any part of a college or university that receives federal funds). At some point, the threatened loss of funds might be so coercive that the statute would violate Congress’s authority to provide for the general welfare. Nat’l Fed’n of Indep. Bus. v. Sibelius, 567 U.S. 519, 581-82, 585 (2012) (holding that Congress’s offer of federal funds for states that would expand their Medicaid program, with the threat of the loss of all Medicaid funds for states that refused the offer, unconstitutionally coerced the states). Whether Title IX is such an unlawful condition on federal funds is outside the scope of this Article. It is sufficient for a discussion of “federal action” that the funds encourage the conduct being challenged. 2021] STATE—OR IS IT FEDERAL?—ACTION 223 whether the conduct being challenged is properly attributed to the federal or state government (or both) is often ignored. Second, even when it is recognized, the principles of the “state action” doctrine applicable when there is a combination of private and public actors are either ignored or not followed with rigor. Of course, one might argue that those principles are also often ignored in state action cases not involving federal-state programs. But, just as importantly, in the context of federal-state programs, no substitute principles are proposed or adopted. Is there any good reason for this? One might argue that where both levels of government are involved, it is more important to make sure that the victims of unconstitutional or otherwise illegal action be adequately, or even generously, compensated for their corrective action. Thus, if a court has to underemphasize federal influence in order to hold state officials liable under 42 U.S.C. § 1983, and award fees under 42 U.S.C. § 1988, perhaps the modest deviation from state action principles is justified by the goal of full compensation to victims of government action and deterring improper governmental conduct.103 A second possible rationale for the courts’ attitude might be the belief that state governments really are in a better position to resist the urgings of the federal government than private individuals’ ability to resist the influence of either the state or federal government. States do have more resources than the average individual or private corporation (although there are obviously exceptions). Georgia did not have to give in to the Department of Justice’s “black maximization” policy in Miller v. Johnson;104 under Section 5 of the Voting Rights Act, it could have commenced an action in the District of the District of Columbia seeking preclearance.105 The problem with the argument, though, is that state resources are only part of the equation. The other part is the degree of pressure that the federal government is able to exert. The loss of all federal funds to a state university could be quite devastating and the risk simply too high to take. The ability

103. This is probably less of a concern in cases seeking damages for past constitutional wrongs. Of course, the existence of such a remedy for victims of unconstitutional conduct by federal officials—the Bivens action—has been increasingly questioned by the Court. Hernandez v. Mesa, 140 S. Ct. 735, 742, 750 (2020) (citations omitted) (refusing to recognize a Bivens action on behalf of a victim of a cross-border shooting and noting generally the Court’s reluctance to create implied causes of action and stating “that expansion of Bivens is ‘a disfavored judicial activity,’ . . . and [we] have gone so far as to observe that if ‘the Court’s three Bivens cases [had] been . . . decided today,’ it is doubt- ful that we would have reached the same result”); Hernandez. 140 S. Ct. at 742. (Thomas, J., concurring) (calling for the abandonment of the Bivens doctrine). Should that trend continue, courts might similarly underemphasize federal involvement in joint federal-state programs in order to shoehorn the cases under Section 1983. 104. 515 U.S. 900 (1995). 105. See supra notes 67-74 and accompanying text. 224 CREIGHTON LAW REVIEW [Vol. 54 to conduct timely elections pursuant to a second-best districting scheme may be better than no viable scheme at all or one imposed by a court. Another possible rationale—perhaps one motivating the “collateral attack” doctrine reviewed earlier—is that courts are concerned that a challenge to a federally-driven practice could, if only state officials were parties, be litigated without a defense by lawyers for the federal government. Indeed, one can imagine an entirely collusive lawsuit between an individual claiming a violation of his or her rights and a sympathetic state agency.106 With the adoption of Federal Rule of Civil Procedure 5.1 in 2006,107 though, and the obligation on judges of federal statute,108 these concerns may be lessened. While the rule and statute are only applicable when the constitutionality of statutes (and not regulations or policies) are drawn into question, it seems likely that underlying concern of notice and a chance to be heard that they reflect would be adopted by most judges. Moreover, judges might conclude that a federal official is a necessary party to an attack on a regulation enforced by that official and require that official’s joinder under Federal Rule of Civil Procedure 19.109 And, in the rare case where a federal policy is somehow left for antipathetic state lawyers to defend, its res judicata value would be diminished. In any event, this is not a problem confined to the federal-state program context; it arises when there is a change in administrations and a new administration is reluctant to defend a law passed during an earlier one or when a state law opposed by an administration is passed by ballot initiative.110 A last possibility is that the strict application of standard state action doctrine to federal-state programs might lead to the conclusion that, in some cases, some government officials may have acted under the color of both state and federal authority. The degree of “influence”

106. For example, one could imagine a library patron suing a library claiming that the software filters at issue in United States v. Am. Library Ass’n, 539 U.S. 194, 195 (2003) violated the patron’s First Amendment rights. 107. FED. R. CIV. P. 5.1 (requiring a party that files a paper “drawing into question” a federal or state statute to file a notice of constitutional questions and serve it on the appropriate attorney general). 108.28 U.S.C. § 2403 (1976) (requiring judges to notify the relevant legal authority in the federal or state government when the constitutionality of a statute is drawn into question and permit intervention). 109.FED. R. CIV. P. 19(a)(1) (identifying situations where a non-party must be joined). 110. See, e.g., United States v. Windsor, 570 U.S. 744 (2013) (affirming judgment holding Defense of Marriage Act unconstitutional where executive refused to defend law and group from House of Representatives intervened to do so); Hollingsworth v. Perry, 570 U.S. 693, 705-06 (2013) (holding that proponents of state initiative that created law defining marriage as between one man and one woman lacked standing to defend it even where state officials refused to do so). 2021] STATE—OR IS IT FEDERAL?—ACTION 225 in Reitman v. Mulkey,111 after all, was fairly minimal—the mere passage of a state statute that granted a rather robust right of association in real estate transactions.112 If modest encouragement of this kind— say, a sizable but not enormous amount of money—by the federal government led to the conclusion that state officials were acting under color of federal authority, would that preclude a finding that the officials were also acting under color of state authority? As the Court has noted, Congress has ways of influencing state behavior and inducing state regulation short of outright coercion.113 States have the choice, it could be argued, of declining to say “how high” when the federal government says “jump.”114 And federal officials’ detailed guidance to states may look like an agreement between the two. Why could it not be the case that some officials, either federal or state, were acting under color of both authorities? The ultimate goal in state action cases involving private actors is to determine whether the conduct of the private actor is attributable to the government. There is no reason that this general principle cannot apply to federal-state programs, even if the details might differ slightly. A government should take responsibility for its own actions and action that it induces others to take. The only tricky part about the federal-state program context is deciding whether the “influenced” party should be deemed to have acted under color of the “influencing”

111. 387 U.S. 369 (1967). 112. See Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967). Reitman might be a deviation from the norm of state action cases, in line with other cases in which the Court stretched the doctrine during the civil rights era. E.g., Shelley v. Kraemer, 334 U.S. 1 (1948) (holding that state judicial enforcement of a private racially-restrictive covenant was state action); Terry v. Adams, 345 U.S. 461 (1953) (holding that voluntary political organization that excluded African Americans, but whose selected candidate for public office would invariably be the Democratic party’s nominee, was a state actor for Fifteenth Amendment purposes); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (holding that privately-owned restaurant, located in a publicly-owned building, was a state actor when it excluded African Americans). I am indebted to Will Baude for suggesting this idea. 113. New York v. United States, 505 U.S. 144, 166 (1992) (“This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State’s policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests.”). The Court went on to identify two such methods: use of federal funds and the threat of federal preemption if a state chose not to adopt Congress’s preferred regulatory policy. New York, 505 U.S. at 167-68. Under these or similar methods, the Court said, “the residents of the State retain the ultimate decision as to whether or not the state will comply.” Id. at 168. 114. See Ross R. Fulton, Comment, “Our Federal System”: States’ Susceptibility to Challenge When Applying Federal Affirmative Action Law, 74 U. CHI. L. REV. 687, 708 (2007) (“A state should remain responsible under the Fourteenth Amendment for its decision to apply federal law and hence be susceptible to challenge since it retains its sovereignty under Spending Power legislation.”). 226 CREIGHTON LAW REVIEW [Vol. 54 party’s authority or vice versa. Here, then, the degree of influence should determine the answer to that question, and, in tough cases, perhaps both parties should be deemed to have acted under color of both federal and state authority. In any event, if standard state action doctrine is abandoned for federal-state programs, it would seem that courts should at least identify that the state action rules applicable to ostensibly private parties do not apply in the context of federal-state programs and identify a set of rules that do. More coherence is probably not the most controver- sial of proposals, but it is one that is badly needed in this context. 227

FOURTH AMENDMENT CONSENT SEARCHES AND THE DUTY OF FURTHER INQUIRY

NORMAN HOBBIE JR.†

ABSTRACT

Consent searches, presently justified on arguably weak grounds, account for nearly ninety percent of all warrantless searches. Though scholars debate whether the Fourth Amendment bars consent searches, the Supreme Court of the United States has continued to reaffirm the constitutionality of such searches. Under current doctrine, third parties, often without actual authority, are able to consent to a search of another’s premises. Yet, if doubt endures over whether an individual possesses adequate authority to offer consent, officers may have to engage in further inquiry to resolve whether sufficient authority exists. With little guidance offered as to what this further inquiry entails, there is currently a split among the circuits as to the dimensions of this directive. On one end of the split, some circuits require that if ambiguity exists over authority, a duty of further inquiry is triggered. The other circuits, by contrast, have either expressly rejected the application of the duty, or have yet to take a position on the issue. This Article’s first contribution is to adopt the United States Court of Appeals for the Seventh Circuit’s view of the duty of further inquiry. Thus, when officers are faced with other equally plausible possibilities for a consenting party’s authority, officers have a duty of further inquiry. This Article’s second contribution is to clarify and augment the Seventh Cir- cuit’s approach. This Article modifies and defines the ambiguity threshold triggering the duty of further inquiry and delineates the substance of that inquiry.

INTRODUCTION ...... 228 I. THE CONSENT EXCEPTION TO THE WARRANT REQUIREMENT ...... 232 A. CONSENT SEARCH JURISPRUDENCE ...... 233

† University of Virginia School of Law, J.D. 2020. I am grateful for the support and helpful comments of Justin W. Aimonetti, Noah Lingwall, Anna Cecile Pepper, Anna Noone, and Jacob Rush. I would also like to thank the members of the Creighton Law Review, especially Hallie Hamilton, Frankie Hass, Daniel McDowell, and Kaitlyn Westhoff, for careful editing and feedback. Any errors are my own. 228 CREIGHTON LAW REVIEW [Vol. 54

B. CAREFULLY CRAFTING WARRANT EXCEPTIONS— TRADITIONAL FOURTH AMENDMENT REASONABLENESS ...... 237 II. THE SPLIT AMONG THE CIRCUITS ...... 240 A. THE EIGHTH CIRCUIT—NO DUTY TO INQUIRE ...... 241 B. THE SEVENTH CIRCUIT—A DUTY OF FURTHER INQUIRY ...... 244 III. A PROPOSED MODIFIED TERRY APPROACH ..... 247 A. THE AMBIGUITY THRESHOLD: “OTHER PLAUSIBLE POSSIBILITIES” ...... 248 B. THE DUTY OF FURTHER INQUIRY ...... 251 C. JUSTIFICATIONS FOR THE PROPOSAL ...... 255 D. APPLICATION OF THE MODIFIED APPROACH ...... 260 i. United States v. Terry ...... 260 ii. United States v. Green ...... 262 E. RESPONSE TO THE PROPOSAL’S POTENTIAL OBJECTIONS ...... 263 i. Ambiguity Threshold ...... 263 ii. Loss of Evidence ...... 264 iii. Increased Litigation ...... 265 iv. Policy Judgment ...... 265 IV. CONCLUSION ...... 268

INTRODUCTION

One day, a friend stays overnight at your apartment. You wake up early and head off to work. Your friend decides to sleep in and let himself out when he awakes. Instead, he is awoken by a knock. He puts on a bathrobe and heads to the door. When he opens the door, he is met by two police officers. Seeing him in a bathrobe with ruffled hair, the officers request entry into your dwelling. Without hesitation, your temporary guest says yes. Although he does not live with you, your friend may have essentially waived your Fourth Amendment protections. The officers had neither probable cause nor a warrant to search your home. When the police asked whether they could enter, they did not know who this person was, your association with this person, or this person’s connection to the dwelling. Once inside your home, officers found incriminating evidence which may be used against you at trial. Courts may find this to be a valid consent search. This is almost 2021] THE DUTY OF FURTHER INQUIRY 229 exactly what happened in United States v. Terry,1 a decision issued by the United States Court of Appeals for the Seventh Circuit in 2019.2 Consent searches are heavily used by law enforcement.3 They may account for more than ninety percent of all warrantless searches by police.4 The convenience and ease for officers inevitably leads to countless home searches without any level of suspicion.5 A person may consent to a search of one’s own home. One’s roommate can also give valid consent. As mentioned above, even a third party without any authority over the premises can consent to a search if officers reasonably believe the person has authority. The Supreme Court of the United States recognizes the validity of these third-party, apparent authority consent searches. In Illinois v. Rodriguez,6 the Court held that if a reasonable officer believes a third party has authority over the premises, even without actual authority, that third party is able to consent to a search of the premises.7 The Court also noted that further inquiry may be necessary when the facts known to the officer call into the question the authority of the consenter.8 In dissent, Justice Marshall interpreted the Fourth Amendment reasonableness requirement as the Supreme Court had consistently done in the past.9 Traditionally, Fourth Amendment reasonableness first required a balancing of government interests against individual

1. 915 F.3d 1141 (7th Cir. 2019). 2. See generally United States v. Terry, 915 F.3d 1141 (7th Cir. 2019). Any references to Terry in the text of this article will refer only to United States v. Terry. Any references to Terry v. Ohio, 392 U.S. 1 (1968), will refer to that case by its full name. 3. Marcy Strauss, Reconstructing Consent, 92 J. CRIM. L. & CRIMINOLOGY 211, 214 (2002) (“[T]here is no dispute that these type of searches affect tens of thousands, if not hundreds of thousands, of people every year.”). 4. Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness, 67 FLA L. REV. 509, 542 (2015) (“Multiple scholars have estimated that consent searches comprise more than 90% of all warrantless searches by police, and that they are ‘un- questionably’ the largest source of searches conducted without suspicion.”). 5. H. Morley Swingle & Kevin M. Zoellner, “Knock and Talk” Consent Searches: If Called by a Panther, Don’t Anther, 55 J. MO. B. 25, 25 (1999) (“The typical ‘knock and talk’ simply involves police officers marching up to someone’s front door, knocking, and requesting consent to search the home.”). 6.497 U.S. 177 (1990). 7. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). 8. Rodriguez, 497 U.S. at 188 (“Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could con- ceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.”). 9. Id. at 198 (Marshall, J., dissenting) (“Where this free-floating creation of ‘reasonable’ exceptions to the warrant requirement will end, now that the Court has departed from the balancing approach that has long been part of our Fourth Amendment jurisprudence, is unclear.”); see also infra Part I.B. 230 CREIGHTON LAW REVIEW [Vol. 54 interests.10 Yet, the majority skipped that step and opted for a standard that centered on the reasonableness of the officer’s actions. By skipping the traditional Fourth Amendment reasonableness inquiry, the majority failed to adequately account for individual privacy interests. The Court’s vague standard for when officers should inquire further before conducting a consent search has created conflicts amongst the states and circuits.11 The conflict focuses on the weight that should be assigned to the Rodriguez Court’s directive that officers faced with ambiguous circumstances may have a duty to inquire further before assuming a third party possesses the authority to consent to a search. On one end of the spectrum, the United States Court of Appeals for the Seventh Circuit has held officers have a duty of further inquiry.12 Several sister-circuits agree with the Seventh Circuit’s approach.13 On the other end of the spectrum, the United States Court of Appeals for the Eighth Circuit has expressly declined to follow other circuits by recognizing such a duty.14 The remaining cir-

10. Id. (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)) (“Instead of judging the validity of consent searches, as we have in the past, based on whether a defendant has in fact limited his expectation of privacy, the Court today carves out an additional exception to the warrant requirement for third-party consent searches without pausing to consider whether ‘“the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.’”); Terry v. Ohio, 392 U.S. 1, 22-25 (1968) (weighing the nature of the general governmental interest against the intrusion on individual rights); see also infra Part I.B. 11. See infra Part II. 12. See infra Part II.B (discussing the recent Seventh Circuit precedent on apparent authority consent searches); Montville v. Lewis, 87 F.3d 900, 903 (7th Cir. 1996) (agreeing with the district court that apparent authority consent searches impose a duty of further inquiry on officers if the circumstances make the consenter’s authority questionable); see also United States v. Goins, 437 F.3d 644, 649 (7th Cir. 2006) (finding that officers fulfilled their obligation to inquire into the consenter’s connection to the residence). 13. Other circuits agreeing that there is a duty to inquire include the First Circuit, Third Circuit, Sixth Circuit, Tenth Circuit, and the D.C. Circuit. See United States v. Moran, 944 F.3d 1, 7 (1st Cir. 2019) (agreeing with several other circuits finding officers had a duty to investigate further to clarify the nature of a consenting party’s consent); United States v. Harrison, 689 F.3d 301, 311 n.5 (3d Cir. 2012) (expressing approval of the duty of further inquiry, but holding that the duty was not triggered in that case); United States v. Waller, 426 F.3d 838, 847 (6th Cir. 2005) (adopting the duty to investigate further); United States v. Cos, 498 F.3d 1115, 1128 (10th Cir. 2007) (quoting United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004) (“Importantly, ‘where an officer is presented with ambiguous facts related to authority, he or she has a duty to investigate further before relying on consent.’”); United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991) (“The burden cannot be met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry.”); see also infra Part II. 14. United States v. Almeida-Perez, 549 F.3d 1162, 1171 (8th Cir. 2008) (citations omitted) (“Some circuits have interpreted these precedents to require police to go behind 2021] THE DUTY OF FURTHER INQUIRY 231 cuits fall in between, often opting for a totality-of-the-circumstances approach.15 Despite this split of authority, little scholarly attention has yet been paid to an officer’s duty of further inquiry. The Seventh Circuit’s recent opinion in United States v. Terry, which held officers had a “duty to inquire further,” provides some insight.16 Yet that opinion also raises several important, unaddressed questions. For example, when do officers have this duty, and what does it entail? This uncertainty affects courts, law enforcement officers, and individuals alike. For the sake of constitutional compliance, officers need to know when the duty applies and how they can meet it. Lower courts evaluating officer reasonableness after the fact need to have measures by which to do so. Citizens need to know precisely when they are “secure in their . . . houses,” as the Fourth Amendment promises.17 Adopting components of the Seventh Circuit’s holding in Terry, this Article proposes a modified Terry approach: Officers, when confronted with ambiguity at the entrance of a home, have a duty of further inquiry; the ambiguity threshold triggering the duty is the existence of other plausible possibilities for the consenter’s alleged authority. Once that threshold is met, officers should inquire into three categories of information: ownership interest, extent of access, and duration of stay. This modified Terry approach will bring consent jurisprudence in line with the traditional Fourth Amendment reasonableness as described by Justice Marshall when he dissented in Illinois v. Rodri- guez.18 The duty of further inquiry does not impose on the plainly legitimate governmental interest in allowing officers to make good- faith mistakes while investigating crimes. At the same time, it sufficiently protects the individual’s heightened privacy interest in their home. After all, the Fourth Amendment’s principal purpose is to pre-

appearances to verify third party authority. Our circuit precedent, however, has been more liberal about allowing police to form their impressions from context.”). 15. United States v. Belt, 609 F. App’x 745, 751 (4th Cir. 2015) (examining all of the circumstances, the Fourth Circuit inferred the next steps a reasonable officer would take which would have included asking the child to fetch his parents); United States v. Antone-Herron, 593 F. App’x. 960, 965 (11th Cir. 2014) (rejecting Defendant’s argument that officers had to inquire further and finding the search reasonable on the available facts); United States v. De Leon-Reyna, 930 F.2d 396, 400 (5th Cir. 1991) (opting for a totality-of-the-circumstances approach); United States v. Lovelock, 170 F.3d 339, 344 (2d Cir. 1999) (emphasizing the constitutional requirement is that officers have reasonable belief, rather than inquiring into all available information); see also infra Part II. 16. Terry, 915 F.3d at 1145. 17. U.S. CONST. amend. IV. 18. See Rodriguez, 497 U.S. at 198 (Marshall, J., dissenting). 232 CREIGHTON LAW REVIEW [Vol. 54 vent arbitrary government searches of the home.19 The modified Terry approach incentivizes consensual interactions with officers and individuals, encourages certainty, and ensures that evidence discovered by apparent authority consent searches will truly be reasonable. Courts, officers, and individuals will benefit from a more clarified approach. This Article is divided into three parts. Part I explores the Su- preme Court’s Fourth Amendment jurisprudence regarding consent searches and traditional reasonableness balancing. Part II examines the split of authority among the circuits, with particular focus on the Seventh and Eighth Circuits. Part III proposes the modified Terry approach. Justifications for the proposal are put forth. Finally, this Ar- ticle applies the proposed rule to recent cases to highlight the competing interests at stake and potential objections to the proposal are addressed.

I. THE CONSENT EXCEPTION TO THE WARRANT REQUIREMENT The Fourth Amendment protects the right of persons to be secure in their homes from unreasonable searches and seizures.20 Under existing Supreme Court jurisprudence, searches of homes without a warrant are presumptively unreasonable.21 However, the Court has made clear that the warrant requirement is subject to carefully drawn and established exceptions.22 To carefully craft these exceptions, the Court balances the interests of the government against the protections afforded individuals.23 One such exception is a consent search.24

19. Florida v. Jardines, 569 U.S. 1, 5 (2013) (“But when it comes to the Fourth Amendment, the home is first among equals.”); see also infra Part I.A. 20. U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 21. Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971) (“It is accepted, at least as a matter of principle, that a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable . . . .”). 22. Riley v. California, 573 U.S. 373, 382 (2014) (“In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”); California v. Acevedo, 500 U.S. 565, 580 (1991) (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)) (“It remains a ‘cardinal principle that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.”’”). 23. See generally Burke, supra note 4. 24. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (“It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”). 2021] THE DUTY OF FURTHER INQUIRY 233

A. CONSENT SEARCH JURISPRUDENCE To perform a valid consent search, the individual’s proffered consent must be voluntary.25 In Schneckloth v. Bustamonte,26 the Court set forth a voluntariness test.27 The Court determines if consent is a product of “free and unconstrained choice” and “whether a defendant’s will was overborne . . . .”28 This does not require an individual to know he may refuse consent.29 In the context of third parties, the Su- preme Court has established doctrines of actual30 and apparent31 authority consent searches. These distinct doctrines enable parties who share—or appear to share—access and use of the property to consent to searches.32 In United States v. Matlock,33 the Court determined that a third party with joint access to property could consent to a search against a roommate.34 In that case, the respondent, William Matlock, was arrested in the front yard of a home owned and occupied by the Marshall family.35 Matlock lived in the home with Mrs. Marshall’s daughter, Gayle Graff.36 When the officers arrested Matlock, he was not asked for his consent to search his bedroom.37 The officers, however, received consent from Gayle to search the bedroom, which she co-occupied with Matlock.38 Writing for the majority, Justice White concluded that consent extended to the third party.39 Justice White validated third-party consent when that party possessed common authority over the property.40 Noting that common authority did not rest on notions of

25. Schneckloth, 412 U.S. at 223. 26. 412 U.S. 218 (1973). 27. Schneckloth, 412 U.S. at 225-26. 28. Id. 29. Id. at 227 (“While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.”). 30. Actual authority exists when a third party has joint access or common authority over the premises of another. United States v. Matlock, 415 U.S. 164, 171 (1974). 31. Apparent authority exists when officers reasonably believe that a third party possesses common authority over premises, even if that party does not. Illinois v. Rodri- guez, 497 U.S. 177, 187 (1991). 32. See Georgia v. Randolph, 547 U.S. 103, 109 (2006) (discussing briefly the evolu- tion of the consent search doctrine). 33.415 U.S 164 (1974). 34. See Matlock, 415 U.S. at 170-71. 35. Id. at 166. 36. Id. 37. Id. 38. Id. 39. The Court found that the government met its burden of proof regarding Gayle Graff’s authority to consent to the search but preferred that the District Court reconsider the evidence in light of the Matlock decision. Id. at 177-78. 40. Id. at 171. 234 CREIGHTON LAW REVIEW [Vol. 54 property law, the majority recognized the authority of persons who have “mutual use of the property” and “joint access or control for most purposes.”41 The justification for this doctrine rested on the reality that when someone has a cohabitant, he or she assumes the risk that his or her roommate may permit the common area to be searched.42 In the final footnote of the Matlock decision, the Court refused to address the government’s contention that officers need only reasonably believe Graff had authority over the premises.43 Because the majority reasoned that the government had sufficiently proven Graff’s actual authority, Justice White declined to address the question of apparent authority consent searches.44 The Court had previously expressed skepticism about apparent authority consent searches in Stoner v. California.45 In Stoner, officers were searching for suspects of an armed robbery.46 After finding several pieces of evidence, the officers believed one suspect was staying at a hotel.47 The officers possessed neither search nor arrest warrants.48 At the hotel, the clerk told the officers that he was familiar with the suspect and guest, Joey Stoner.49 The clerk had a key to Stoner’s room, pursuant to hotel regulations.50 The officers requested permission from the clerk to search Stoner’s room.51 The clerk con-

41. Id. at 171 n.7 (citations omitted) (“Common authority is, of course, not to be implied from the mere property interest a third party has in the property. . . . [B]ut [it] rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”). 42. Id. 43. Id. at 177 n.14 (“[W]e do not reach another major contention of the United States in bringing this case here: that the Government in any event had only to satisfy the District Court that the searching officers reasonably believed that Mrs. Graff had sufficient authority over the premises to consent to the search.”). 44. Id. 45. Stoner v. California, 376 U.S. 483, 487-88 (1964). 46. Stoner, 376 U.S. at 484. 47. Id. 48. Id. at 485. 49. Id. 50. Id. One of the officers recounted the events this way: “We approached the desk, the night clerk, and asked him if there was a party by the name of Joey L. Stoner living at the hotel. He checked his records and stated ‘Yes, there is.’ And we asked him what room he was in. He stated he was in Room 404 but he was out at this time.

“We asked him how he knew that he was out. He stated that the hotel regulations required that the key to the room would be placed in the mail box each time they left the hotel. The key was in the mail box, that he therefore knew he was out of the room.” Id. 51. Id. 2021] THE DUTY OF FURTHER INQUIRY 235 sented to that request.52 Once inside the hotel room, officers found several pieces of incriminating evidence against Stoner.53 On appeal, the government argued that officers had a reasonable basis for the belief that the clerk had authority to consent.54 Rejecting this argument, Justice Stewart stated “[o]ur decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of ‘apparent authority.’”55 Stewart emphasized that because Stoner’s constitutional rights were at stake, the clerk simply could not consent.56 “It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent.”57 Follow- ing the language in Stoner, it seemed likely that the Court would reject apparent authority consent searches as unconstitutional.58 Quite to the contrary, in 1990, Illinois v. Rodriguez59 upheld apparent authority consent searches based on officer reasonable mistake grounds.60 In Rodriguez, the police responded to a domestic violence dispute.61 Police arrived at Dorothy Jackson’s home and found her daughter, Gail Fischer, showing signs of being beaten.62 Fischer claimed that she was beaten by Edward Rodriguez, who was inside the apartment.63 Fischer agreed to take the officers to Rodriguez’s apartment and several times referred to the apartment as “our apartment.”64 Fischer also claimed that she had clothing and furniture inside the apartment.65 After unlocking the apartment with her key, she gave the officers consent to enter.66 Inside, the officers found drugs and related paraphernalia and arrested Rodriguez, who was asleep.67

52. Id. at 489 (“It is true that the night clerk clearly and unambiguously consented to the search.”). 53. Id. at 486. 54. Id. at 488. 55. Id. 56. Id. at 489. 57. Id. 58. See Matthew W. J. Webb, Note, Third-Party Consent Searches After Randolph: The Circuit Split Over Police Removal of An Objecting Tenant, 77 FORDHAM L. REV. 3371, 3386 (2009) (arguing Stoner’s holding, read literally, would severely limit or elimi- nate third-party consent searches as an exception to the warrant requirement). 59.497 U.S. 177 (1990). 60. See Illinois v. Rodriguez, 497 U.S. 177, 185-89 (1990). 61. Rodriguez, 497 U.S. at 179. 62. Id. (“[Officers] were met by Ms. Jackson’s daughter, Gail Fischer, who showed signs of a severe beating.”). 63. Id. (“[Fischer] told the officers that she had been assaulted by respondent Ed- ward Rodriguez earlier that day in an apartment on South California.”). 64. Id. 65. Id. 66. Id. at 180. 67. Id. 236 CREIGHTON LAW REVIEW [Vol. 54

Writing for the majority, Justice Scalia parsed the language of the Stoner majority, inferring that apparent authority consent searches had since remained an open question.68 Holding that apparent authority could justify a consent search, Justice Scalia indicated that apparent authority consent was not a waiver of rights.69 Instead, Justice Scalia justified apparent authority consent searches on reasonable mistake grounds.70 Justice Scalia explained that “to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government . . . is not that they always be correct, but that they always be reasonable.”71 Addition- ally, the scope of a valid apparent authority consent search is similar to that of an actual authority consent search.72 The Rodriguez majority gave officers latitude to make reasonable mistakes as to a person’s authority.73 Officer inferences about authority would be judged against an objective standard.74 Lower courts would look to “the facts available to the officer at the moment” of consent and if those facts would warrant a reasonable officer in believing the consenting party had authority over the premises.75 If the facts

68. Id. at 187-89 (“It is ambiguous, of course, whether the word ‘unrealistic’ is descriptive or limiting—that is, whether we were condemning as unrealistic all reliance upon apparent authority, or whether we were condemning only such reliance upon apparent authority as is unrealistic.”); see also Tammy Campbell, Illinois v. Rodriguez: Should Apparent Authority Validate Third-Party Consent Searches?, 63 U. COLO. L. REV. 481, 491-492 (1992) (discussing how the majority tried to parse through the language of Stoner to show how it was consistent with the current holding). 69. See Rodriguez, 497 U.S. at 187. 70. Id.; see Daniel N. Haas, Note, Must Officers Be Perfect?: Mistakes of Law and Mistakes of Fact During Traffic Stops, 62 DEPAUL L. REV. 1035, 1039 (2013) (“Rodriguez stands for the concept that officers can make reasonable mistakes of fact without triggering the exclusionary rule . . . .”). 71. See Rodriguez, 497 U.S. at 185. 72. See Florida v. Jimeno, 500 U.S. 248, 252 (1991) (holding that during a consent search, the scope of the search extends as far as an objectively reasonable officer would have believed based on the interaction with the consenter); United States v. Goins, 437 F.3d 644, 647 (2006) (detailing all of the places that the officers searched following apparent authority consent). The scope of a valid consent search of a home is subject to debate among the circuits as well. See Harlan T. Mechling, Comment, Third Party Con- sent and Container Searches in the Home, 92 WASH. L. REV. 1029, 1045-51 (2017) (discussing the circuit split regarding when officers must inquire into the authority over containers in a shared space). 73. Rodriguez, 497 U.S. at 186 (citing Brinegar v. United States, 338 U.S. 160, 176 (1949)). 74. See id. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)) (“As with other factual determinations bearing upon search and seizure, determination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises.”). 75. Id. 2021] THE DUTY OF FURTHER INQUIRY 237 are objectively insufficient to discern authority, “then warrantless entry without further inquiry is unlawful . . . .”76 Exactly when officers need to engage in further inquiry is a source of disagreement among lower courts.77 The Rodriguez dissent em- phatically argued that the narrow officer reasonableness approach propounded by Justice Scalia strayed far from the traditional Fourth Amendment reasonableness analysis.78

B. CAREFULLY CRAFTING WARRANT EXCEPTIONS—TRADITIONAL FOURTH AMENDMENT REASONABLENESS

Justice Marshall, in dissent, attacked Justice Scalia’s construction of reasonableness.79 Justice Marshall argued that carving out exceptions to the warrant requirement has always required balancing compelling government interests against the intrusion on individual interests.80 Only after performing this traditional Fourth Amend- ment reasonableness inquiry should the Court evaluate more individ- ualized officer reasonableness. Refusing to create another exception to the warrant requirement, Justice Marshall viewed the government interest as merely avoiding the inconvenience of getting a warrant.81 That justification was minimal when weighed against the individual’s privacy interest in the home.82 The Rodriguez83 majority cited Terry v. Ohio84 for the proposition that officer actions need to be reasonable according to the Fourth

76. Id. at 188-89. 77. See infra Part II. 78. See Rodriguez, 497 U.S. at 198 (Marshall, J., dissenting) (quoting Mincey v. Arizona, 437 U.S. 385, 393-94 (1978)) (“Instead of judging the validity of consent searches, as we have in the past, based on whether a defendant has in fact limited his expectation of privacy, the Court today carves out an additional exception to the warrant requirement for third-party consent searches without pausing to consider ‘whether the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment . . . .’”). 79. Illinois v. Rodriguez, 497 U.S. 177, 198 (1990) (Marshall, J., dissenting). 80. Rodriguez, 497 U.S. at 198 (“Where this free-floating creation of ‘reasonable’ exceptions to the warrant requirement will end, now that the Court has departed from the balancing approach that has long been part of our Fourth Amendment jurisprudence, is unclear.”). 81. Id. at 192 (“Indeed, as the present case illustrates, only the minimal interest in avoiding the inconvenience of obtaining a warrant weighs in on the law enforcement side.”). 82. Id. (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) (“Against this law enforcement interest in expediting arrests is ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’”). 83.497 U.S. 177 (1990). 84. 392 U.S. 1 (1968). 238 CREIGHTON LAW REVIEW [Vol. 54

Amendment.85 In its discussion of reasonableness, however, the Terry v. Ohio Court first balanced the government and individual interests at stake.86 The Terry v. Ohio majority noted: In order to assess the reasonableness of [the officer’s] conduct as a general proposition, it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.”87 Terry v. Ohio was not an anomaly. This type of Fourth Amend- ment reasonableness inquiry has been a mainstay in the Supreme Court’s jurisprudence.88 While courts do evaluate the reasonableness of officer mistakes, that occurs after addressing the Fourth Amend- ment reasonableness of the intrusion. Justice Scalia skipped the first essential step in the reasonableness inquiry. The consequences of Justice Scalia’s analysis have been debated. In a recent article, Professor Alafair Burke noted that the Court has traditionally “look[ed] to macro reasonableness to shape Fourth Amendment doctrine.”89 Burke referred to macro-level reasonableness as “weighing the governmental interests served by the category of search against the nature and level of the intrusion to citizen interests.”90 Historically, the Court would balance these interests to create

85. Rodriguez, 497 U.S. at 188 (Scalia, J., majority). Justice Scalia argued that this is a factual determination that must be judged against an objective standard, similar to that of Terry v. Ohio. Compare id., with Terry v. Ohio, 392 U.S. 1, 21-22 (1968). 86. Terry, 392 U.S. at 20-21. 87. Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35, 536-37 (1967)). 88. See Maryland v. King, 569 U.S. 435, 448 (2013) (quoting Illinois v. McArthur, 531 U.S. 326, 331 (2001)) (“To say that no warrant is required is merely to acknowledge that ‘rather than employing a per se rule of unreasonableness, we balance the privacy- related and law enforcement-related concerns to determine if the intrusion was reasonable.’”); Virginia v. Moore, 553 U.S. 164, 171 (2008) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)) (“When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’”); Maryland v. Buie, 494 U.S. 325, 331 (1990) (“Our cases show that in determining reasonableness, we have balanced the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”); United States v. Place, 462 U.S. 696, 703 (1983) (“We must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”); Florida v. Royer, 460 U.S. 491, 514 (1983) (Blackmun, J., dissenting) (“The key principle of the Fourth Amendment is reasonableness—the balancing of competing interests.”). 89. Burke, supra note 4, at 539. 90. Id. at 540. 2021] THE DUTY OF FURTHER INQUIRY 239 exceptions to the warrant requirement.91 The Rodriguez majority did not engage in such balancing.92 Burke argued that by focusing exclusively on allowing reasonable officer mistakes, the Rodriguez majority failed to properly account for individual Fourth Amendment privacy interests.93 Professor Burke’s poignant argument explains a common criticism of the Supreme Court’s consent jurisprudence: it is divorced from both traditional Fourth Amendment jurisprudence and reality.94 Other scholars have expressed concern with the reasonableness approach advanced by majority.95 But existing scholarship is scant regarding the duty of further inquiry. Even courts that do find that the duty exists nevertheless disagree on the ambiguity required to trigger

91. Id. at 539-40 (discussing the Fourth Amendment’s emphasis on protecting individual privacy and liberty against unreasonable government interference). 92. Id. at 542 (explaining the micro-reasonableness approach taken by the majority, and contrasting that from the proper, macro-level reasonableness inquiry explicated by the dissent). 93. Id. at 543 (“Because the Court has lost sight of macro reasonableness, it has failed to look to the balance of governmental and individual Fourth Amendment interests as it has shaped consent-search doctrine.”). 94. Id.; see also Roseanna Sommers & Vanessa K. Bohns, The Voluntariness of Vol- untary Consent: Consent Searches and the Psychology of Compliance, 128 YALE L.J. 1962, 2019 (2019) (“Refusal is harder, and rarer, than we realize. This psychological reality suggests that the Fourth Amendment voluntariness test may need to be recon- sidered so that biases in social perception do not undercut citizens’ civil rights.”); Daniel R. Williams, Misplaced Angst: Another Look at Consent-Search Jurisprudence, 82 IND. L.J. 69, 89 (2007) (“After all, what maddens us about the voluntariness locution in consent-search cases is precisely the unreality of it—most everyone would feel coerced by the sorts of police encounters that are described everyday in our courthouses.”); Ric Simmons, Not “Voluntary” But Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 IND. L.J. 773, 774 (2005) (“Like past decisions upholding consensual searches, the ruling that the defendants truly consented to the search had . . . an ‘air of unreality’ about it.”); Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 SUP. CT. REV. 153, 155 (2002) (contrasting the Court’s view of voluntariness with the empirical evidence suggesting “the extent to which people feel free to refuse to comply is extremely limited under situationally induced pressures”); Robert V. Ward, Consenting To A Search and Seizure in Poor and Minority Neighborhoods: No Place for a “Reasonable Person”, 36 HOW. L.J. 239, 241 (1993) (“[T]he Court’s adoption of the reasonable person test for evaluating the lawful- ness of warrantless searches and seizures makes the false assumption that police officers operate strictly in good faith.”). 95. See Tracey Maclin, Justice Thurgood Marshall: Taking the Fourth Amendment Seriously, 77 CORNELL L. REV. 723, 798-99 (1992) (citatons omitted) (quoting United States v. Rabinowitz, 339 U.S. 56, 80 (1950)) (“By ignoring the warrant requirements and emphasizing the reasonableness of police conduct, the Court distorts the Fourth Amendment claims presented in Rodriguez. . . . The Court’s approach gives the consent exception more constitutional weight than it can bear, and, once again, the theory of reasonableness has allowed another exception to the warrant requirements to be ‘en- throned into the rule.’”); Daniel L. Rotenberg, An Essay On Consent(less) Police Searches, 69 WASH. U. L.Q. 175, 184 (1991) (“The Rodriguez approach, while supplying strong support for law enforcement, completely ignores the constitutional interest of the privacy holder.”). 240 CREIGHTON LAW REVIEW [Vol. 54 the duty. It is also not clear what the duty requires of officers. This lack of agreement has led to inconsistency in the lower courts.96 Part II examines the diverging opinions of circuit courts regarding the duty of further inquiry.

II. THE SPLIT AMONG THE CIRCUITS State courts disagree on the constitutionality of consent searches. Some states have opted to be more protective of individual privacy rights than others, including bans or significant modifications to consent searches.97 Other states have effectively banned apparent authority consent searches by requiring actual authority to consent.98 New Jersey requires there be reasonable suspicion for officers to even initiate a consent search.99 Remaining states have followed Rodri- guez100 in some form.101 United States Circuit Courts of Appeals have also inconsistently interpreted Rodriguez. The inconsistency focuses on the weight assigned to the need for further inquiry—the requirement to go behind appearances and attempt to verify authority. At one end of the spectrum, several circuits have opted to impose upon officers a duty of further inquiry when faced with ambiguous situations.102 Even still, the

96. See infra Part II. 97. See The Fourth Amendment and Antidilution: Confronting the Overlooked Function of the Consent Search Doctrine, 119 HARV. L. REV. 2187, 2187 (2006) [hereinafter Fourth Amendment Antidilution]. 98. See State v. Bonilla, 366 P.3d 331, 333 (Or. 2015) (en banc); State v. Morse, 123 P.3d 832, 835 (Wash. 2005); State v. Devonshire, 2004 WL 94724, at *3 (Del. Super. Ct. Jan. 20, 2004); State v. McLees, 994 P.2d 683, 690-91 (Mont. 2000); State v. Lopez, 896 P.2d 889, 901 (Haw. 1995); State v. Wright, 893 P.2d 455, 461 (N.M. 1995). 99. State v. Carty, 790 A.2d 903, 912 (N.J. 2002). 100. 497 U.S. 177 (1990). 101. See People v. Mead, 931 N.W.2d 557, 565 (Mich. 2019); Commonwealth v. Lo- pez, 937 N.E.2d 949, 958 (Mass. 2010); Commonwealth v. Hughes, 836 A.2d 893, 900-04 (Pa. 2003); Petersen v. People, 939 P.2d 824, 831-32 (Colo. 1997) (en banc); People v. James, 645 N.E.2d 195, 202-03 (Ill. 1994). 102. See United States v. Moran, 944 F.3d 1, 7 (1st Cir. 2019) (agreeing with several other circuits finding officers had a duty to investigate further to clarify the nature of a consenting party’s consent); United States v. Terry, 915 F.3d 1141, 1145 (7th Cir. 2019) (quoting United States v. Goins, 437 F.3d 644, 648 (7th Cir. 2006)) (“If the officers did not know enough to reasonably conclude that the third party had authority over the premises, they had ‘a duty to inquire further’ before they could rely on her consent to the search.”); United States v. Arreguin, 735 F.3d 1168, 1177 (9th Cir. 2013) (“‘[W]ithout further inquiry,’ [consenter’s] silence was insufficient for the Agents to reasonably believe [consenter] had authority to consent to a search . . . .”); United States v. Harrison, 689 F.3d 301, 311 n.5 (3d Cir. 2012) (expressing approval of the duty of further inquiry, but holding that the duty was not triggered in that case); United States v. Cos, 498 F.3d 1115, 1128 (10th Cir. 2007) (quoting United States v. Kimoana, 383 F.3d 1215, 1222 (2004)) (“Importantly, ‘where an officer is presented with ambiguous facts related to authority, he or she has a duty to investigate further before relying on consent.’”); United States v. Waller, 426 F.3d 838, 847 (6th Cir. 2005) (adopting the duty to investigate further); United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991) 2021] THE DUTY OF FURTHER INQUIRY 241 circuits in this camp have not adopted uniform standards for determining when this duty is imposed.103 On the other end, the Eighth Circuit has expressly rejected that approach.104 The other circuits have not recognized the duty of further inquiry, instead drawing conclusions based on a totality-of-the-circumstances test.105 That said, no circuit has clearly defined what the duty of further inquiry entails. Thus, courts, officers, and individuals are left in a state of uncertainty. This Article next compares and contrasts the approaches taken by the Eighth Circuit and the Seventh Circuit, respectively.

A. THE EIGHTH CIRCUIT—NO DUTY TO INQUIRE Whereas several circuits have recognized the duty of further inquiry to some degree, the Eighth Circuit has not followed along.106 In the Eighth Circuit, officers seeking third-party consent are “entitled to draw the usual inferences from what they see and hear, even though

(“The burden cannot be met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry.”). 103. See Moran, 944 F.3d at 8 (triggering the duty when facts arose calling into question the consenter’s authority, such as a statement made suggesting the property belonged to someone else); Terry, 915 F.3d at 1145-46 (triggering the duty of further inquiry due to the existence of multiple other possibilities, or many other equally plausible possibilities, or because the officers lacked certain facts, such as knowledge of who the person was, their relationship to the defendant, why they were in the apartment, how long they were there, or whether they lived there); Arreguin, 735 F.3d at 1175 (wanting further inquiry if a reasonable person would not presume access, control, or authority or, perhaps, when the officers did not know certain facts about the consenter, the various areas within the residence, or the nature and extent of the consenter’s connection to those areas); Harrison, 689 F.3d at 311 (holding the duty of further inquiry may be triggered if a reasonable person would find authority ambiguous, but finding officer’s extensive knowledge of the home and its history made the facts unambiguous). 104. United States v. Almeida-Perez, 549 F.3d 1162, 1171 (8th Cir. 2008) (“Some circuits have interpreted these precedents to require police to go behind appearances to verify third party authority. Our circuit precedent, however, has been more liberal about allowing police to form their impressions from context.”). 105. These circuits have not mentioned the need for further inquiry in finding a search unreasonable. Instead they have relied heavily on the totality-of-the-circumstances evaluation of all the facts available to the officers at the time they received consent. See United States v. Belt, 609 F. App’x 745, 751 (4th Cir. 2015) (examining all of the circumstances, the Fourth Circuit inferred the next steps a reasonable officer would take which would have included asking the child to fetch his parents); United States v. Antone-Herron, 593 F. App’x. 960, 965 (11th Cir. 2014) (rejecting Defendant’s argument that officers had to inquire further and finding the search reasonable on the available facts); United States v. De Leon-Reyna, 930 F.2d 396, 400 (5th Cir. 1991) (opting for a totality-of-the-circumstances approach); United States v. Lovelock, 170 F.3d 339, 344 (2d Cir. 1999) (emphasizing the constitutional requirement is that officers have reasonable belief, rather than inquiring into all available information). 106. United States v. Almeida-Perez, 549 F.3d 1162, 1171 (8th Cir. 2008) (quoting Georgia v. Randolph, 547 U.S. 103, 122 (2006)) (rejecting the approach of other circuits in favor of liberally allowing police officers to make impressions and inferences, because it would be “impractical to require the police to take affirmative steps to confirm . . . authority”). 242 CREIGHTON LAW REVIEW [Vol. 54 further inquiry might prove the inferences wrong.”107 It is an open question whether the Eighth Circuit would require officers to inquire further if facts arise that give officers “reason to doubt” the authority of the consenter.108 In Iron Wing v. United States,109 the Eighth Circuit displayed its willingness to grant latitude to officer inferences.110 In that case, Gilford Leroy Iron Wing had an argument with his wife, Darla, and was arrested for abusing her.111 Following the altercation, Darla’s sister, Loretta Cadotte, arrived in a car and allowed the officers to search Iron Wing’s home.112 Loretta stated that she lived there with her sister, but she did not have a key.113 Loretta told officers the windows were unlocked and crawled through one to open the front door.114 The Eighth Circuit held that the officers acted reasonably.115 Namely, the Eighth Circuit believed that a consenter’s claim of unlocked windows showed familiarity with the property, and when she climbed through the window it confirmed the officers’ beliefs that she had authority.116 Iron Wing demonstrates the types of inferences the Eighth Circuit will allow officers to make.117 The Eighth Circuit then expressly distinguished itself from other circuits in United States v. Almeida-Perez.118 In that case, officers received a tip that a Hispanic male was selling drugs out of a house.119 After surveilling and noticing several people enter and exit the house, agents attempted a “knock and talk.”120 The agents saw Sergio Al- meida sitting on the front porch, introduced themselves, stated their

107. Almeida-Perez, 549 F.3d. at 1170. 108. Id. at 1171 (suggesting that since “no countervailing facts” had arisen, the officers did not have to inquire further into authority); United States v. Janis, 387 F.3d 682, 687 (8th Cir. 2004) (holding that where a defendant’s friend entered the house without knocking and gestured to the officers to follow her to “her room” the officers “had no reason to doubt” the authority); see also Iron Wing v. United States, 34 F.3d 662, 665 (8th Cir. 1994) (suggesting that when the defendant’s sister-in-law consented, but had no key to the residence and had to climb through the window, there was no reason to doubt). 109. 34 F.3d 662 (8th Cir. 1994). 110. See Iron Wing v. United States, 34 F.3d 662, 665 (8th Cir. 1994). 111. Iron Wing, 34 F.3d at 664. 112. Id. 113. Id. 114. Id. at 665. 115. Id. (“Here, Loretta was living at the house and she told police so. She corrobo- rated this statement by her familiarity with the house and the fact that she knew she had left her bedroom window unlocked.”). 116. Id. 117. See generally id. 118. United States v. Almeida-Perez, 549 F.3d 1162, 1171 (8th Cir. 2008). 119. Almeida-Perez, 549 F.3d at 1164. 120. Id. 2021] THE DUTY OF FURTHER INQUIRY 243 purpose, and asked if they could “talk about it inside.”121 Sergio consented to a search of the house.122 The government argued the search was reasonable because Sergio was “very cooperative,” invited the agents into the residence, and walked in without knocking.123 The Eighth Circuit agreed, holding that “[a]t least three of these four ges- tures would only be appropriate for someone who had been granted freedom of the dwelling.”124 Notably, the agents did not ask if Sergio had an interest in the house, and Sergio did not indicate to the officers that he had any authority.125 No matter, the Eighth Circuit emphati- cally stated its reluctance “to require police to go behind appearances to verify third party authority.”126 Instead, the Almeida-Perez court opted for an approach “more liberal about allowing police to form their impressions from context.”127 This approach inevitably led to the Eighth Circuit’s holding in United States v. Lindsey.128 Officers, while looking at a house for an unrelated case, knocked on the door to ask if the suspect was inside.129 The woman who answered said “[n]o” and then consented to a search of the house.130 Judge Benton declared that “[a]nswering the door and showing knowledge of occupants demonstrate[d] greater authority than Almeida-Perez, where a man was outside and simply walked in the house.”131 Needless to say, officers will usually never know the truth or falsity of this statement until they are inside the home, searching. Importantly, in Lindsey, the suspect was, in fact, inside the home.132 This suggests that opening the door of a home is essentially enough to establish apparent authority in the Eighth Circuit. Following Lindsey, it is hard to see situations where courts in the Eighth Circuit would not find apparent authority to consent to a search. Refusing to require further inquiry, the Eighth Circuit grants officers maximum deference. The Eighth Circuit believes relying on officer inferences is the proper standard for reasonableness. That does not square with the traditional reasonableness inquiry of the Fourth Amendment, because it improperly weighs officer interests to

121. Id. 122. Id. at 1164-65. 123. Id. at 1165. 124. Id. at 1171. 125. Id. at 1164-65. 126. Id. at 1171. 127. Id. 128. United States v. Lindsey, 702 F.3d 1092, 1096-97 (8th Cir. 2013). 129. Lindsey, 702 F.3d at 1095. 130. Id. 131. Id. at 1097. 132. Id. at 1095-96. 244 CREIGHTON LAW REVIEW [Vol. 54 the detriment of the interests of individuals.133 By contrast, the Sev- enth Circuit has adopted the duty of further inquiry, which requires more from officers conducting consent searches.134

B. THE SEVENTH CIRCUIT—A DUTY OF FURTHER INQUIRY

The holding in United States v. Goins135 illustrates the Seventh Circuit’s preference for the duty of further inquiry.136 In Goins, officers were called by Kalina Bratton to handle a domestic dispute.137 When the officers arrived, Bratton met them in the parking lot and she asked if they could escort her to get her belongings.138 Before doing so, the officers learned she had been dating the defendant, George Goins, for five months, and other facts suggesting she did not have authority to consent.139 Bratton claimed that she performed Goins’s household chores, she kept possessions at Goins’s house, and she had a key.140 She unlocked the door and let the officers into the home.141 Goins was not home.142 Once inside, officers searched the home.143 The government argued that if it was reasonable to believe Bratton’s claims, then it would be reasonable to believe Bratton had actual authority to consent to a search.144 Agreeing with the government, the Seventh Circuit engaged in a two-step inquiry. Chief Judge Flaum stated, “we must ask two questions: (1) whether the officers should have disbelieved Bratton’s story based on the information that they possessed; and (2) whether they had a duty to inquire further before accepting Bratton’s representations.”145 Interpreting the Rodriguez reasonable officer framework, Judge Flaum opted to prohibit searches where officers “blindly accept[ed] a person’s claim of authority . . . .”146 Although officers found evidence potentially contradictory to statements made by Bratton, Judge Flaum held officers took sufficient precautions to assure them-

133. Burke, supra note 4, at 544. 134. United States v. Terry, 915 F.3d 1141, 1145 (7th Cir. 2019). 135.437 F.3d 644 (7th Cir. 2006). 136. United States v. Goins, 437 F.3d 644, 649 (7th Cir. 2006). 137. Goins, 437 F.3d at 646. 138. Id. 139. Id. Officers learned that Bratton lived miles away in an apartment with her children, and she had been living with Goins on-and-off for months. Id. 140. Id. 141. Id. 142. Id. at 647. 143. Id. Officers first conducted a protective sweep and determined no one was home. Shortly after, other officers arrived on the scene and double-checked Bratton’s connection to the residence. Id. 144. Id. at 648. 145. Id. at 649. 146. Id. (citing Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)). 2021] THE DUTY OF FURTHER INQUIRY 245 selves of the truth of Bratton’s statements.147 Thus, the apparent authority consent search was reasonable.148 Because these determinations are only judged after the fact by courts, this standard does not give notice to officers of what triggers a duty of further inquiry, nor does Goins tell officers what to look for in determining authority. Mere months after the decision in Goins, the Seventh Circuit decided United States v. Groves,149 which addressed those concerns.150 The Groves court introduced ten factors indicating whether one has authority to consent to a search.151 The Groves court stated that it would consider the facts that the officers knew at the time they sought consent, rather than facts introduced after the search commenced.152 Though the Groves court provided ten factors for guidance, there was confusion over whether this was a test or simply a restatement of prior case law. Shortly thereafter, in United States v. Ryerson,153 the Seventh Circuit stated that the Groves factors were not a test but rather relevant factors from prior cases to consider in determining authority.154 More recently, the Seventh Circuit decided United States v. Terry,155 which clarifies the circuit’s approach. Terry, however, used different language than prior decisions, perhaps signaling a change in

147. Id. (“We also believe that the evidence provided adequate support for Bratton’s representations. Goins’ claim to the contrary are unavailaing. The apartment’s lack of a washing machine should not have caused the police to disbelieve that Bratton did Goins’ laundry. The police could reasonably assume that Bratton took Goins’ laundry elsewhere, just as Goins himself would have had to do. More probative were the pans that Bratton grabbed, indicating that she had actually cooked at Goins’ apartment.”). 148. Id. 149. 470 F.3d 311 (7th Cir. 2006). 150. See generally United States v. Groves, 470 F.3d 311 (7th Cir. 2006). 151. Groves, 470 F.3d at 319 (citations omitted) (“Facts that militate in favor of a finding of actual or apparent authority include but are not limited to: (1) possession of a key to the premises; (2) a person’s admission that she lives at the residence in question; (3) possession of a driver’s license listing the residence as the driver’s legal address; (4) receiving mail and bills at that residence; (5) keeping clothing at the residence; (6) having one’s children reside at that address; (7) keeping personal belongings such as a diary or a pet at that residence; (8) performing household chores at the home; (9) being on the lease for the premises and/or paying rent; and (10) being allowed into the home when the owner is not present.”). 152. See id. (“For the apparent authority analysis, the court must consider what the officers knew at the time they sought [the consenting party’s] consent and whether those facts were sufficient to demonstrate that the officers reasonably, but erroneously, believed that [the consenting party] possessed shared authority as an occupant.”). 153. 545 F.3d 483 (7th Cir. 2008). 154. United States v. Ryerson, 545 F.3d 483, 490 (7th Cir. 2008) (finding that the ten factors outlined in Groves were not a test, but rather were relevant factors from prior cases to consider in finding apparent authority). 155. 915 F.3d 1141 (7th Cir. 2019). 246 CREIGHTON LAW REVIEW [Vol. 54 the circuit’s apparent authority consent search doctrine.156 In Terry, Drug Enforcement Agency agents arrested Dimitris Terry outside of his home.157 Some agents stayed behind, knocked at the door, and a woman, Ena Carson, answered in a bathrobe, looking sleepy.158 Re- questing consent to search, the agents did not ask Carson who she was, how she related to Terry, or her relation to the apartment.159 She consented to the search.160 Refusing to uphold the search, Judge Barrett believed that officers did not know sufficient facts to reasonably conclude Carson had authority.161 The Terry court was particularly troubled because the officers “did not know who she was, what her relationship to Terry was, why she was in the apartment, how long she had been in the apartment, or whether she lived there.”162 Importantly, Judge Bar- rett stated that the existence of “many other equally plausible possibilities should have prompted the agents to ‘inquire further.’”163 Without knowing these fundamental facts, Judge Barrett held officers had a duty of further inquiry.164 The reasoning in Terry suggests a shift in when the Seventh Cir- cuit will find that the duty of further inquiry is triggered. While Terry takes a step towards a clear rule, it does not go far enough. Terry’s holding does not expand on the ambiguity threshold that triggers the duty to inquire. Nor does Terry explain what officers ought to inquire into once they have that duty. Judge Barrett described one ambiguity threshold as the existence of “other equally plausible possibilities.”165

156. Compare United States v. Terry, 915 F.3d 1141, 1145 (7th Cir. 2019) (discussing the directive in Rodriguez as a “duty” on officers to inquire further when confronted with multiple other possibilities for a consenter’s presence), and United States v. Goins, 437 F.3d 644 (7th Cir. 2006) (mentioning a duty to inquire further, but suggesting it only arose when officers “blindly accept[ ] a person’s claim of authority”), with United States v. Ryerson, 545 F.3d 483, 489 (7th Cir. 2008) (claiming apparent authority exists when an officer “of reasonable caution” would believe a consenting person had authority over the premises”), and United States v. Groves, 470 F.3d 311, 318-20 (7th Cir. 2006) (claiming the apparent authority analysis rested on “officers reasonably, but erroneously” accepting authority, and making no mention of any duty of further inquiry). 157. Terry, 915 F.3d at 1143. 158. Id. 159. Id. (“The agents identified themselves, explained that they had just arrested Terry, and asked to come inside. They didn’t ask the woman who she was, how she was related to Terry, or whether she lived at the apartment.”). 160. Id. 161. Id. at 1145 (“If the officers did not know enough to reasonably conclude that the third party had authority over the premises, they had ‘a duty to inquire further’ before they could rely on her consent to the search.”). 162. Id. 163. Id. 164. Id. 165. Id. (“And the existence of so many other equally plausible possibilities should have prompted agents to ‘inquire further.’”). 2021] THE DUTY OF FURTHER INQUIRY 247

But, other language indicates the threshold could also be the existence of “multiple other possibilities,”166 or the lack of certain fundamental facts.167 These uncertainties are pervasive in the context of third- party consent searches.168 Certainly, the Terry rationale signals the duty of further inquiry will have more bite in the future.169 Undoubt- edly, the search in Terry would have been reasonable if the case were decided in the Eighth Circuit; however, the existence of the duty of further inquiry in the Seventh Circuit protected Terry’s rights and required more from officers before entering his home. That said, what is the ambiguity threshold and how will officers recognize when the duty of further inquiry is triggered?170 And what does the “duty of further inquiry” entail?171 To address this uncertainty, Part III proposes a modified Terry approach that answers these questions and provides more clarity to courts, officers, and individuals.

III. A PROPOSED MODIFIED TERRY APPROACH

Courts should follow a modified United States v. Terry172 approach when confronted with ambiguity in officer execution of consent searches of homes. Officers may often face ambiguity at homes. Once someone opens the front door, there tend to exist many possibilities for that person’s access. Undoubtedly, in some settings officers may have familiarity with the owner of the property from previous encounters or interactions. This, however, does not give rise to the duty to inquire further. Conversely, the fact is, when a person opens the front door to a home, they could be an owner, renter, employee, contractor, family member, or friend. Because the intimate details of the home are so

166. Id. (“The facts that the agents had made it reasonable for them to conclude that Carson had spent the night at Terry’s apartment. That might have been an indication that she lived with him, but there are multiple other possibilities. She could have been a one-time guest, a periodic guest, a friend or relative visiting for a couple of days—or she may have had some other relationship to Terry.”). 167. Id. (“They did not know who she was, what her relationship to Terry was, why she was in the apartment, how long she had been in the apartment, or whether she lived there.”). 168. See infra Part III for a discussion of where the courts may go from here. 169. The difference is subtle, but important. The Goins standard suggested that officers could accept authority unless facts arose to make authority questionable. The Terry court suggests that if there are equally plausible possibilities, officers will have a duty to inquire further. Officers may now have a proactive duty rather than waiting for facts to arise calling into question authority. 170. See infra Part III.A (proposing a suggestion for determining when the duty to inquire further is triggered). 171. See infra Part III.B (proposing a more formulaic approach to the duty to inquire further, while still giving officers the requisite flexibility in the situation). 172. 915 F.3d 1141 (7th Cir. 2019). 248 CREIGHTON LAW REVIEW [Vol. 54 protected from the outside world, they should be protected from officer inferential pileup. The modified Terry approach first asks whether there is ambiguity as to the consenting party’s authority. If ambiguity exists, officers will have a duty of further inquiry. The ambiguity threshold is met if the facts known to officers do not defeat other plausible possibilities for the person’s presence at the dwelling.173 Then, when the duty of further inquiry is triggered, courts evaluating officer reasonableness should be focused on three categories of information: (1) ownership interest, (2) extent of access, and (3) duration of stay. These categories logically follow from the Supreme Court’s holding in United States v. Matlock.174 A finding of ownership interest will create a rebuttable presumption of authority.175 There is no hierarchy or chronology for officer inquiry. No one category is dipositive, nor do all categories need to be inquired into. The modified Terry approach simply defines the categories the government and courts should inquire into while providing officers with flexibility. At the entry of a home, there are limitless possibilities for a person’s presence. Those possibilities, absent exigent circumstances, should often warrant further inquiry.

A. THE AMBIGUITY THRESHOLD: “OTHER PLAUSIBLE POSSIBILITIES”

Before imposing on officers the duty of further inquiry, officers must know when this duty is triggered.176 Recall that in United States v. Terry,177 then-Judge, now-Justice Barrett held that officers had a duty of further inquiry when there existed other equally plausible possibilities.178 The first modification to the Terry approach is the removal of the word “equally.” The duty of further inquiry will be triggered if there are “other plausible possibilities,” not equally plausible ones. For two reasons, removing “equally” will lead to less confusion when lower courts apply this standard. First, “equally plausible” may signal to lower courts a more precise and heightened threshold, which could lead to officers rarely exercising the duty of further inquiry. Second, officers will easily make mistakes in determining whether “equally plausible possibilities” exist and the standard will be difficult for judges to evaluate.

173. See infra Part III.A. 174. 412 U.S. 164 (1974). 175. This principle is asserted as a rebuttable presumption under the modified Terry framework. See infra Part III.B. 176. In this Article, that threshold will be called “the ambiguity threshold.” 177. 915 F.3d 1141 (7th Cir. 2019). 178. See Terry, 915 F.3d at 1145 (quoting United States v. Goins, 437 F.3d 644, 648 (2006)) (“And the existence of so many other equally plausible possibilities should have prompted the agents to inquire further.”). 2021] THE DUTY OF FURTHER INQUIRY 249

Lower courts looking to the Terry opinion may interpret “equally plausible possibilities” as heightening the ambiguity threshold, giving substantial deference to officers. Interpreted literally, officers would not have to defeat plausible possibilities, but only ones which are of the same exact likelihood. The chances of finding a truly equally likely possibility would be low.179 In turn, officers would rarely have a duty of further inquiry and this standard would be hard for judges to administer. Based on the examples offered by Judge Barrett in Terry, such a high threshold was seemingly not her intention.180 Recall that in Terry, Barrett mentioned that the existence of “multiple other possibilities” imposed upon officers the duty of further inquiry.181 The woman answering the door in a bathrobe, appearing sleepy, left alone for forty-five minutes, who consented to a search of the residence “could have been a one-time guest, a periodic guest, a friend or relative visiting for a couple of days . . . .”182 While these are all plausible possibilities, it is hard to discern—and unlikely the case—that these are each equally likely alternatives. Officers could reasonably infer that someone comfortable enough to answer a door in a bathrobe and consent to a search is more likely to live there, rather than other possibilities. That suggests the Terry court threshold is less restrictive than the “equally plausible” language may indicate to lower courts. Meanwhile, if the ambiguity threshold is “equally plausible possibilities,” officers will have to engage in arduous speculation. This is not desirable. While standing at the door of a home, officers would have to ascertain when possibilities are equally likely. Officers making inferences in the field are second-guessed by judges after the fact.183 How would officers and courts assess whether possibilities are

179. For an overly simplified example to depict this point, assume that courts could figure out these numbers. Suppose officers knock on a door to a home and when the door is opened there is a 40% chance this person lives there, a 30% chance they are a visiting relative, a 20% chance that they are an employee of some sort, and a 10% chance of other. Assume officers do not have prior knowledge of the home or occupants. Will officers have to inquire further? Under a strict reading requiring equal likelihood, they would not. Under a more lenient view, maybe they would. Officers in the field, however, would have to make this determination. The duty of further inquiry binary on-off trigger would rest on razor-thin, arbitrary calculations. 180. Terry, F.3d at 1145. 181. Id. (“That might have been an indication that she lived with him, but there are multiple other possibilities.”). 182. Id. 183. See Atwater v. City of Lago Vista, 532 U.S. 318, 350 (2001) (considering the various distinctions officers must make on a moment’s notice); see Russell M. Gold, Note, Is This Your Bedroom?: Reconsidering Third-Party Consent Searches Under Mod- ern Living Arrangements, 76 GEO. WASH. L. REV. 375, 381 n.43 (2008) (“Actual authority cannot be determined by officers on the scene but is determined by courts after a search is challenged.”). 250 CREIGHTON LAW REVIEW [Vol. 54 truly “equal?” How equally likely must the possibilities be? Such a narrow, bright line exposes officer decisions to wide-ranging criticism by judges. This “equally likely” standard leaves broad judicial discretion in interpretation and application. Such a potentially restrictive interpretation of the Terry threshold is too rigid. Thus, this Article proposes removing the word “equally.” When officers are confronted with an ambiguous situation—one in which there are merely other plausible possibilities for a third-party consenter’s presence—the duty of further inquiry is triggered. This approach has multiple benefits. First, the lower ambiguity threshold will more often trigger an officer’s duty to inquire further. Knowing this, officers will be incentivized to err on the side of asking more questions. Further inquiry will, in turn, give courts more facts and inferences to evaluate officers’ decisions ex post. Second, officers and courts will not have to engage in arbitrary calculations of what constitutes an equally likely possibility. Officers will look to the common societal understanding of what constitutes a plausible possibility. Fi- nally, and significantly, there will be fewer searches based on officer mistake, and those mistakes will be more reasonable. The current case law offers situations in which other plausible possibilities existed at the time officers conducted consent searches. For instance, when a woman answered the door in a bathrobe, the Seventh Circuit found, “[s]he could have been a one-time guest, a periodic guest, a friend or relative visiting for a couple of days—or she may have had some other relationship” to the defendant.184 Following that rationale, a person sitting on a front porch and freely entering a home, without more, would meet the ambiguity threshold.185 That person on the porch, freely entering, could plausibly be a periodic guest, a friend, a visiting relative, or some other relation to the party having actual authority over the premises. Notably, in dicta, the Supreme Court suggested that a woman coming to the door of a home with a baby at her hip, standing alone, is enough to imply authority to consent.186 Yet, this woman, without more information, could be a friend, a relative visiting for a few days,

184. Terry, 915 F.3d at 1145. 185. See United States v. Almeida-Perez, 549 F.3d 1162, 1172 (8th Cir. 2008) (finding valid authority to consent because the consenting party was sitting on the porch, observed going in and out without knocking, and invited police inside without asking permission of anyone). 186. Georgia v. Randolph, 547 U.S. 103, 111 (2006) (“When someone comes to the door of a domestic dwelling with a baby at her hip[,] . . . she shows that she belongs there, and that fact standing alone is enough to tell a law enforcement officer or any other visitor that if she occupies the place along with others, she probably lives there subject to the assumption tenants usually make about their common authority when they share quarters.”). 2021] THE DUTY OF FURTHER INQUIRY 251 or a babysitter. Here, under the modified Terry approach, officers would have a duty of further inquiry. One may question when, if ever, officers could get valid consent without the duty of further inquiry. Officer pre-search activities, investigation, familiarity, or other prior knowledge of the consenting party’s relationship to the property can serve to defeat ambiguity and circumvent the duty of further inquiry.187 To that end, without prior knowledge, if other plausible possibilities exist, the duty of further inquiry is triggered.

B. THE DUTY OF FURTHER INQUIRY Once the duty of further inquiry is triggered, one must understand what that duty entails. The United States v. Terry188 court did not expand on the content of the inquiry.189 Once the ambiguity threshold is met, courts should evaluate the reasonableness of that inquiry based on three categories. The first category of inquiry is ownership interest. A finding of ownership interest creates a rebuttable presumption that officers reasonably inquired further.190 The second category of inquiry is extent of access. The third category of inquiry is duration of stay.191 No one category is necessary or dispositive. These factors do not need to be addressed sequentially. It could be the case that merely one more question by officers confirms or dispels authority. Nonetheless, the modified Terry approach focuses courts on these three categories. Recall, in holding third-party consent searches reasonable, the United States v. Matlock192 Court sought authority “by persons generally having joint access or control for most purposes.”193 At its core, the modified Terry categories are a logical outgrowth of the Matlock inquiry.194 The bottom line is that the

187. See United States v. Harrison, 689 F.3d 301, 311 n.5 (3d Cir. 2012) (“[G]iven the officer’s extensive knowledge of the home and its history, the facts seemed unambiguous.”); Almeida-Perez, 549 F.3d at 1170 (suggesting that facts learned during surveillance can make situations unambiguous). 188. 915 F.3d 1141 (7th Cir. 2019). 189. See United States v. Terry, 915 F.3d 1141, 1145 (7th Cir. 2019). 190. Common societal understanding suggests ownership is the strongest indicator of authority over a premises. 191. There is no rebuttable presumption established based on a finding of access or duration. 192. 415 U.S. 164 (1974). 193. United States v. Matlock, 415 U.S. 164, 171 n.7 (1974). 194. An ownership interest greatly suggests actual authority. Moreover, a showing of extensive access for a long duration overlaps with the Matlock inquiry into joint access or control for most purposes. See Matlock, 415 U.S. at 171 n.7 (clarifying the common authority inquiry based on “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit inspection in his own right and that others have assumed the risk that one of their number might permit the common area to be searched”); see also United States v. Groves, 470 F.3d 311, 319 (7th Cir. 2006) 252 CREIGHTON LAW REVIEW [Vol. 54 categories lend themselves to a finding of authority in line with Mat- lock and respect the special Fourth Amendment protections afforded the home. The first category of inquiry is ownership interest. A finding of ownership interest would create a rebuttable presumption that officers acted reasonably. In deciding whether a party had an ownership interest in the property, officers would not need to understand the intricacies of property law.195 As suggested in Matlock and Geor- gia v. Randolph,196 reasonableness would be based on a societal, common understanding of authority, rather than property law concepts.197 Officers would retain flexibility.198 In a suppression hearing, the government could show evidence that officers knew of an ownership interest in the property, establishing a presumption of reasonableness. Facts suggesting ownership interest may include actually owning the property, paying rent, having one’s name on the lease, paying bills for the residence, or having a driver’s license listing the residence as the driver’s legal address.199 Reasonably concluding there is an ownership interest creates a rebuttable presumption of authority. That conclusion, however, will not be dispositive as to authority to consent to a search. Even though a party might have ownership over a premises, they do not always have authority to consent to a search.200 For instance, a hotel clerk

(emphasizing certain facts essential to the analysis of actual or apparent authority within the Matlock framework). 195. That approach would square with the Court’s rationale in Randolph. See Geor- gia v. Randolph, 547 U.S. 103, 110 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177, 181- 82 (1990)) (“The common authority that counts under the Fourth Amendment may thus be broader than the rights accorded by property law . . . .”). 196. 507 U.S. 103 (2006). 197. Randolph, 547 U.S. at 109-11 (“The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules.”). The Randolph Court states that Matlock stands for the broader proposition that reasonableness of officer inferences, generally, is measured by commonly held understandings. See United States v. Matlock, 415 U.S. 164, 170 (1974). 198. See Randolph, 547 U.S. at 111 (“Matlock accordingly not only holds that a soli- tary co-inhabitant may sometimes consent to a search of shared premises, but stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other’s interests.”). 199. This list is not exhaustive, but rather suggestive. See supra Part II.B (discussing the Groves factors that indicate authority); see generally United States v. Groves, 470 F.3d 311 (7th Cir. 2006). 200. See Randolph, 547 U.S. at 112 (“It is also easy to imagine different facts on which, if known, no common authority could sensibly be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no custom- ary understanding of authority to admit guests without the consent of the current occupant.”). 2021] THE DUTY OF FURTHER INQUIRY 253 does not have authority to consent to a search of a guest’s hotel room.201 Similarly, a landlord cannot consent to a search of a property leased by a tenant.202 Touched on previously, the Randolph Court stated that “[t]he common authority that counts under the Fourth Amendment may thus be broader than the rights accorded by property law.”203 This dictum suggests situations where a consenting party has no ownership interest, but has authority to consent to a search.204 That is where the second and third categories of the modified Terry inquiry will prove useful. The second category asks the extent of a party’s access to the premises. Even without ownership interest, a person could still have authority to consent to a search if they display sufficient access. In the face of ambiguity, reasonable officers’ duty of further inquiry may wade into areas showing the extent of a party’s access. Officers could ask several questions regarding the extent of one’s access or permission to be on the property. Moreover, officers could see if the person has a key, if the person has a designated room or area in the residence, if the person has mail delivered to the residence, if the person has extensive familiarity with the premises, and other indicia of access.205 Again, the reasonableness of an officer’s conclusions will be judged by a common understanding of indicia of access. Finally, the third category of the inquiry focuses on the duration of the party’s stay. Duration may give officers clues to the authority of the would-be consenting party. Once again, reasonableness of the inquiry will be determined by a common understanding of the indicia of duration.206 Notably, commonly understood indicia of duration may overlap with indicia of access. For instance, if one has mail delivered to the residence, this suggests he or she has access and has been there

201. Id. (“[A] hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room.”). 202. Id. (“A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling . . . .”). 203. Id. at 110. 204. Id. at 111-12 (discussing the numerous types of living arrangements that may not include ownership interest). 205. While climbing through a window may indicate familiarity, standing alone, that fact does not indicate sufficient access. But see generally Iron Wing v. United States, 34 F.3d 662 (8th Cir. 1994) (finding that knowledge of unlocked windows and climbing through the window to enter the home suggested familiarity with the property). 206. Officers could ask several questions and make inferences based on the answers. The officers could inquire into the person’s intentions of staying, how long they have been there, or whether they have their own room. 254 CREIGHTON LAW REVIEW [Vol. 54 for some time. In some cases, the duration inquiry could end with one simple question: “How long have you been here?” If a would-be consenter opens the door to a home from the inte- rior, they have some access. This fact, standing alone, is not enough. The extent of a party’s access is what suggests they have common authority.207 It could be that the owner or tenant has granted this person extensive access to enter and exit at will. Contrarily, the would-be consenter could be there for countless limited reasons. For example, one may give his or her neighbor a key to check his or her house while gone for the weekend. The neighbor has limited access (to check the house) and limited duration (the weekend the homeowner is gone). The commonly-held understanding would suggest that this person does not have authority to consent. Furthermore, a homeowner may have a relative or friend staying with them indefinitely. This person does not have any ownership interest, yet they have extensive access of an indefinite duration. This latter scenario would indicate the person does have authority under the Matlock framework. These examples illustrate the usefulness of access and duration inquiries in the absence of an ownership interest by the would-be consenter.208 The modified Terry approach is a framework within which officers and courts should work to discern the authority of those consenting to searches of homes. When met with ambiguity at the entrance of a home, officers will have a duty of further inquiry. Courts evaluating the reasonableness of that inquiry will seek facts within three categories: ownership interest, extent of access, and duration of stay. The officers maintain flexibility to draw inferences regarding the authority of the consenting party. These inferences will be adjudged based on common understandings of what those facts indicate. The modified Terry approach does not impose any rigid requirements upon officers. It only clarifies what makes an officer’s inquiry reasonable. The modified Terry approach does not impose mandatory questions. Instead, the modified Terry approach gives courts, officers, and individuals more clarity. By defining the duty of further inquiry and the ambiguity threshold, there is more certainty in the law and protection of individual Fourth Amendment rights.

207. This aligns with framework of discerning common authority in Matlock. See United States v. Matlock, 415 U.S. 164, 171 n.7 (1974) (discussing third parties possessing sufficient relationship to a property through joint access or control). 208. This Article does not purport to declare what is a sufficient extent of access, nor a sufficient amount of time spent on the premises. The facts that officers will be sub- jected to in the field cannot possibly be encompassed in this Article. Guidance, however, can be provided from previous and future case law on the subject. 2021] THE DUTY OF FURTHER INQUIRY 255

C. JUSTIFICATIONS FOR THE PROPOSAL The proposed modified United States v. Terry209 approach provides certainty for courts, officers, and individuals, while coming closer to traditional Fourth Amendment reasonableness.210 Under traditional Fourth Amendment jurisprudence, warrantless searches must be made pursuant to certain carefully drawn exceptions.211 As stated, these exceptions are justified based on reasonableness—a balancing of government interests in the search and the intrusion on the individual.212 The proper balance has not been struck under the current consent search doctrine, specifically in the context of consent searches of homes.213 The United States Supreme Court has long recognized the government’s interest in consent searches,214 but these interests need to be balanced against the individual privacy interest of the home. By imposing the duty of further inquiry on officers when faced with ambiguity at a home, the modified Terry approach recognizes the weighty individual interests at stake. Such an approach will properly strike the balance—allowing for government consent searches and officer mistakes while honoring the sanctity of the home. In carving out exceptions to the warrant requirement, the Su- preme Court looks to compelling government interests. These interests typically include officer safety, emergencies, or exigent circumstances that render getting a warrant impractical.215 Such

209. 915 F.3d 1141 (7th Cir. 2019). 210. Maclin, supra note 95, at 798-799 (discussing the Supreme Court’s misguided reasonable approach in consent searches, leading to undue weight given to government interests at the expense of the real-world individual liberties at risk). 211. See supra Part II.B. 212. See supra Part II. 213. See Illinois v. Rodriguez, 497 U.S. 177, 192-93 (1990) (Marshall, J., dissenting) (first quoting Silverman v. United States, 365 U.S. 505, 511 (1961), then quoting John- son v. United States, 333 U.S. 10, 15 (1948)) (“Against this law enforcement interest in expediting arrests is ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ . . . The concerns of expediting police work and avoiding paperwork ‘are never very convincing reasons and, in these circumstances, certainty are not enough to by-pass the constitutional requirement.’”); Terry v. Ohio, 392 U.S. 1, 21 (1968) (“In order to assess the reasonableness of [officer] conduct as a general proposition, it is necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen, for there is no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.”); see Burke, supra note 4, at 539-40 (“In [several] context[s], the Court determined that the usual warrant and probable cause requirements that serve as a default proxy for reasonableness were inappropriate. In the absence of this requirement, the Court turned to a macro-level determination of reasonableness by weighing the governmental interests served by the category of search against the nature and level of the intrusion to citizen interests.” (emphasis added)). 214. See supra Part I.A. 215. See Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018) (“Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened 256 CREIGHTON LAW REVIEW [Vol. 54 needs are not present when officers seek to engage in a consent search of a home. Yet, the Court has been unwavering in its recognition of the government’s need to conduct consent searches. The offered government interests are flimsy. One such interest is convenience.216 In other circumstances, however, the Court has found mere officer convenience an insufficient reason to create an exception to the warrant requirement.217 Another more speculative interest is that consent searches allow individuals to stand on their rights and avoid embarrassment.218 Importantly, that does not apply in apparent authority consent cases, where an individual has no chance to stand on his or her rights. And a final interest—not to be taken lightly—is that consent searches are important because they obtain evidence.219 As Justice Stewart put it, consent searches are “wholly legitimate” because “[i]n situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, . . . [it] may be the only means of obtaining important and reliable evidence.”220 It is worth repeating, officers need not have any evidence of illicit activity or any level of suspicion to commence a consent search.

with imminent harm, or prevent the imminent destruction of evidence.”); Rodriguez, 497 U.S. at 192 (discussing exceptions to the warrant requirement such as hot pursuit, officer safety in searches incident to arrest, and a compelling need for action with no time to secure a warrant); see also Burke, supra note 4, at 539-40 (discussing several special government searches that are considered exceptions to the warrant requirement). 216. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (holding that in the absence of a warrant and probable cause, consent searches may be the most convenient means of obtaining evidence). 217. See Rodriguez, 497 U.S. at 192 (Marshall, J., dissenting) (“Because the sole law enforcement purpose underlying third-party consent searches is avoiding the inconvenience of securing a warrant, a departure from the warrant requirement is not justified . . . .”); Mincey v. Arizona, 437 U.S. 385, 393 (1978) (“[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.”). But see Schneckloth, 412 U.S. at 227 (“In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.”); see also Fourth Amendment Antidilution, supra note 97, at 2196-97 (discussing the scholarship that has launched attacks against the consent search doctrine). 218. Fourth Amendment Antidilution, supra note 97, at 2189 (“[B]y encouraging police requests, the consent search doctrine operates on a systemic level as a device by which a Court highly deferential to the government interest in maintaining order re- turns to individuals the power to stand up for their own rights.”). 219. See Schneckloth, 412 U.S. at 227-28 (“In the present case for example, while the police had reason to stop the car for traffic violations, the State does not contend that there was probable cause to search the vehicle or that the search was incident to a valid arrest of any of the occupants. Yet, the search yielded tangible evidence that served as a basis for prosecution, and provided some assurance that others, wholly innocent of the crime, were not mistakenly brought to trial.”). 220. Id. at 227. 2021] THE DUTY OF FURTHER INQUIRY 257

Wouldn’t that be a justification for every search—lawful and unlawful—that yielded evidence? It should be obvious that these interests are a far cry from traditional government interests justifying warrantless intrusions.221 To concede a point, officers in the field should be allowed to make reasonable mistakes. If we are going to allow consent searches, mistakes are inevitable. Given this, however, when creating the apparent authority consent exception to the warrant requirement, the Court did not adequately balance compelling government needs against weighty individual interests.222 The Court’s undying commitment to the consent search rationale has left individual interests disproportionately at risk. First of all, individual interests are compromised because officers are not required to inform individuals of their right to refuse consent.223 Individuals oftentimes feel coerced when officers knock at their door asking, “May I come in?”224 The lack of pre-clearance of these searches is conducive to racial profiling, for “the power to be lenient [also] is the power to discriminate.”225 Thus, several states have taken measures to ban or limit consent searches.226 While some of these individual interests have not been addressed or given due weight in the Supreme Court’s Fourth Amendment jurisprudence, an area with unmatched precedent is this: the special protections afforded the home. The Supreme Court has long recognized government intrusions into the home as “the chief evil against which the wording of the Fourth Amendment is directed.”227 The home is the quintessential

221. Compare Rodriguez, 497 U.S. at 186-87, with Carpenter v. United States, 138 S. Ct. 2206, 2222-23 (2018) (citing cases and discussing several justifications for well- defined exceptions to the warrant requirement, including “the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.”). 222. See Rodriguez, 497 U.S. at 192 (Marshall, J., dissenting) (“The weighty constitutional interest in preventing unauthorized intrusions into the home overrides any law enforcement interest in relying on the reasonable but potentially mistaken belief that a third party has authority to consent to such a search or seizure.”); Rotenberg, supra note 95, at 184. 223. See Schneckloth, 412 U.S. at 227 (“While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.”). 224. The Court’s current jurisprudence does recognize the coercive, psychological effects of an officer’s request for consent. See generally Sommers & Bohns, supra note 94. 225. McCleskey v. Kemp, 481 U.S. 279, 312 (1987) (alteration in original); see generally Ward, supra note 94. 226. Fourth Amendment Antidilution, supra note 97, at 2187-88 (discussing several states’ approaches to limiting or eliminating the ability for officers to conduct consent searches); see generally Nancy Leong & Kira Suyeishi, Consent Forms and Consent For- malism, 2013 WIS. L. REV. 751 (2013). 227. United States v. United States District Court, Eastern District of Michigan, 407 U.S. 297, 313 (1972). 258 CREIGHTON LAW REVIEW [Vol. 54 area protected by the Fourth Amendment.228 Searches of homes are presumptively unreasonable without a warrant.229 There is an un- ending history of cases and articles thoroughly discussing this unmatched individual interest.230 Recently, in Kyllo v. United States,231 Justice Scalia stated, “the Fourth Amendment draws ‘a firm line at the entrance to the house.’ That line, we think, must be not only firm

228. See Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting United States v. Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring in the judgment) (stating, “though Katz may add to the baseline, it does not subtract anything from the [Fourth] Amend- ment’s protections ‘when the Government does engage in [a] physical intrusion of a constitutionally protected area’”); Kyllo v. United States, 533 U.S. 27, 37 (2001) (distinguishing the search activity from that in Dow Chemical, because of “the Fourth Amendment sanctity of the home”); Dow Chemical Company v. United States, 476 U.S. 227, 237 n.4 (1986) (noting that the aerial observation was constitutional, importantly, because it was not observing “an area immediately adjacent to a private home, where privacy expectations are most heightened.”); Payton v. New York, 445 U.S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms . . . .”); United States District Court for Eastern District of Michigan, Southern Division, 407 U.S. at 313 (“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed . . . .”). 229. Riley v. California, 573 U.S. 373, 382 (2014) (“In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”); California v. Acevedo, 500 U.S. 565, 580 (1991) (“It remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” (internal quotation marks omitted)). 230. See Kentucky v. King, 563 U.S. 452, 474-75 (2011) (Ginsburg, J., dissenting) (discussing the heightened scrutiny the Court gives to unwarranted searches and seizures inside a home); Rodriguez, 497 U.S. at 191-92 (1990) (Marshall, J., dissenting) (discussing the maximum protections the Fourth Amendment grants to a person’s interest in their home); United States v. Karo, 468 U.S. 705, 714 (1984) (“At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. Our cases have not deviated from this basic Fourth Amendment principle.”); Payton, 445 U.S. at 601 (“[N]either history nor this Nation’s experience requires us to disregard the overrid- ing respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.”); Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion”); see also Ste- phanie M. Stern, The Inviolate Home: Housing Exceptionalism in the Fourth Amend- ment, 95 CORNELL L. REV. 905, 912-20 (2010) (discussing the idea that the Fourth Amendment is a home-centric jurisprudence); Stephen P. Jones, Reasonable Expecta- tions of Privacy: Searches, Seizures and the Concept of Fourth Amendment Standing, 27 U. MEM. L. REV. 907, 957 (1997) (“The most sacred of all areas protected by the Fourth Amendment is the home.”); Samuel D. Warren & Louis D. Brandeis, The Right to Pri- vacy, 4 HARV. L. REV. 193, 220 (1890) (“The common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands.”). 231. 533 U.S. 27 (2001). 2021] THE DUTY OF FURTHER INQUIRY 259 but also bright . . . .”232 Justice Scalia emphasized that “people in their houses, as well as the police, deserve more precision,” in arguing for a more rule-like formulation at the home.233 This is where the duty of further inquiry will prove useful. While there seem to be no protections granted to individuals to balance against the weaker governmental interests justifying consent searches, the duty of further inquiry offers a meaningful solution. Be- cause the Supreme Court has not indicated a willingness to ban consent searches, an adjustment must be made. The imposition of the modified Terry approach will provide a framework for officers to work within when conducting consent searches of homes. Meanwhile, officers do not need as much discretion because the encounter is not based on emergency circumstances. If such exigent circumstances arise, then another exception to the warrant requirement may justify a warrantless intrusion.234 This framework will also allow for more after-the-fact scrutiny by courts. Courts will more willingly impose the duty of further inquiry on officers, due to the lower ambiguity threshold. Further, courts will more uniformly look to the three categories of inquiry. By lowering the threshold of ambiguity required for these searches, officers will more often have to engage in voluntary dialogue with individuals. This leads to fewer mistaken authority cases and allows individuals the opportunity to stand on their rights. Admit- tedly, this duty of further inquiry makes the consent search a little less convenient for officers. That should come as no surprise, for the home is more protected under the Fourth Amendment. When officers knock on one’s door and ask, “May I come in,” there is tension. The weak government interests are directly conflicting with the maximal protections afforded the individual. Thus, officers must make meaningful inquiries before entering due to an arbitrary finding of authority because of inferential pileup. Mere convenience should not be able to overcome the sanctity of the home, especially when there is a possibility that a party without any authority may effectively waive your Fourth Amendment rights.

232. Kyllo v. United States, 533 U.S. 27, 40 (2001) (quoting Payton v. New York, 445 U.S. 573, 590 (1980)). 233. See Kyllo, 533 U.S. at 39. 234. See King, 563 U.S. at 459-60 (citations omitted) (“But we have also recognized that this presumption [against warrantless searches] may be overcome in some circumstances because the ultimate touchstone of the Fourth Amendment is reasonableness. Accordingly, the warrant requirement is subject to certain reasonable exceptions. One well-recognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.”). 260 CREIGHTON LAW REVIEW [Vol. 54

The Supreme Court has allowed for an attenuation of paltry government interests, essentially allowing imprecision on top of a weakly justified search. Remember, mere convenience apparently justifies consent searches. Illinois v. Rodriguez235 allowed for officers to make reasonable mistakes while performing a search justified on mere convenience. This piles one weak justification on top of another. Because of this, consent searches have not found many friends outside the Court.236 Absolute prohibition, however, is not the approach taken by this Article.237 Rather, this Article proposes the modified Terry approach to bring consent searches of homes closer to Fourth Amend- ment reasonableness by properly accounting for individual interests. The modified Terry approach does so by asking more of officers— granting more precision to people in their homes, police, and the courts, just as Justice Scalia required for the entry of the home.238

D. APPLICATION OF THE MODIFIED APPROACH To better explain the modified United States v. Terry239 approach, this section will show the test in practice. The application of the rule will demonstrate the benefits of more guidance and clarity. Although arguing for a brighter line, it cannot be understated that due to the limitless factual scenarios that may confront officers, there must still be room for officers to make determinations and mistakes in the field.

i. United States v. Terry Recall that in Terry, officers arrested Dimitris Terry while he was parking his car outside his home.240 After Terry was taken to a police station, officers knocked on his door and Ena Carson answered.241 Carson was asked for and provided consent to a search.242 Officers believed she had authority because it appeared that she had been there overnight, was dressed in a robe, answered the door, and had control of the residence which was otherwise unoccupied.243 This is the moment where officers evaluate authority.244 The district court

235.497 U.S. 177 (1990). 236. See Fourth Amendment Antidilution, supra note 97 (“Outside the Court, however, the consent search doctrine has found few friends.”). 237. Nor has the Supreme Court indicated any willingness to ban its consent search jurisprudence. 238. See Kyllo, 533 U.S. at 39. 239. 915 F.3d 1141 (7th Cir. 2019). 240. United States v. Terry, 915 F.3d 1141, 1143 (7th Cir. 2019). 241. Terry, 915 F.3d at 1143. 242. Id. 243. Id. 244. Id. at 1145 (quoting United States v. Alexander, 573 F.3d 465, 474 (7th Cir. 2009)) (“To determine whether the officers’ belief was reasonable, we consider ‘what the 2021] THE DUTY OF FURTHER INQUIRY 261 judge evaluated the credibility of witnesses, weighed the facts available to the officers at the time they were given consent, and reviewed other factors specific to that situation.245 Following the modified Terry approach, officers met with ambiguity have a duty of further inquiry into ownership interest, extent of access, and duration of stay. Once Carson answered the door, officers saw a sleepy looking woman in a bathrobe. As stated in Terry, these facts alone were not sufficient to indicate authority.246 Following this modified framework, officers could learn that Carson did not have any ownership interest in the residence.247 Thus, officers had no presumption of reasonableness and could inquire into access and duration. Such an inquiry could inform officers that Carson’s access was limited to driving her son to school. Additionally, Carson did not have belongings there. Finally, officers inquiring into duration could find out that she had only been left alone for forty-five minutes and otherwise did not have access to the apartment for an extended period of time. This approach still allows for reasonable mistakes by police officers. For instance, if Carson misled the officers and said that she did live at the Terry home, that could lead to a reasonable mistake. If the officers inquired into access and duration, they could still reasonably conclude Carson had authority when she did not. To complicate matters, one can imagine different facts, such as if Carson had a key, if her old mail was still delivered to Terry’s home, or if she answered the door with her son at her side. Though Carson did not have actual authority, these facts could reasonably suggest authority to officers. Un- less Carson indicated she did not reside there, an officer’s mistake would have been reasonable in believing she had authority.248 While answering the door in a bathrobe is not enough, mistakes such as these, following the duty of further inquiry would justify a finding of

officers knew at the time they sought consent, not facts that came to light after the search began.’”). 245. See generally United States v. Terry, No. 11-CR-887, 2014 WL 1651956 (N.D. Ill. Apr. 21, 2014). 246. See Terry, 915 F.3d at 1145 (“The facts that the agents had made it reasonable for them to conclude that Carson had spent the night at Terry’s apartment. That might have been an indication that she lived him, but there are multiple other possibilities. . . . And the existence of so many other equally plausible possibilities should have prompted the agents to ‘inquire further.’”). 247. See Terry, 2014 WL 1651956, at *5. 248. One can imagine that these hypothetical facts could suggest to reasonable officers that Carson had authority. See Georgia v. Randolph, 547 U.S. 103, 111 (2006) (suggesting that someone coming to the door of a home with a child at his or her hip tells officers that they have authority); United States v. Groves, 470 F.3d 311, 319 (7th Cir. 2006) (discussing ten factors from prior cases that can show authority, including the consenting party having a key to the premises and mail delivered to the residence). 262 CREIGHTON LAW REVIEW [Vol. 54 apparent authority.249 The modified Terry approach would square with Georgia v. Randolph250 and Illinois v. Rodriguez251 because officers would not have to confirm actual authority.252 Reasonableness would be “judged against an objective standard.”253

ii. United States v. Green The facts of United States v. Green254 provide a clear example of how the revised Terry approach would differ from current doctrine. In United States v. Green, Paul Green was taken to the hospital for hallu- cinations.255 Paul’s nephew, Matthew Green, contacted 911 and stated that as he was locking his uncle’s apartment, “he stumbled upon ‘a lot’ of methamphetamine.”256 An officer met Matthew at Paul’s residence.257 Matthew told the officer he went to close up the apartment and make sure no appliances had been left on.258 On his way out, he tripped over a shoe box full of drugs.259 Matthew Green then invited the officer inside Paul’s house.260 “[T]here was no evidence that he lived in the apartment, had a key to it, or exercised any dominion over it.”261 The officer believed Matthew had sufficient authority because he could lock up, had permission to be there alone, and appeared comfortable and familiar with the apartment.262 The Eighth Circuit, following United States v. Lindsey,263 would easily find apparent authority.264 By contrast, the modified Terry approach would yield a different result. When the officer arrived and met Matthew in the driveway of his uncle’s apartment, there would be

249. This inquiry would be in the extent of access and duration categories of the modified Terry approach. 250. 547 U.S. 103 (2006). 251. 497 U.S. 177 (1990). 252. See Randolph, 547 U.S. at 122 (citing Illinois v. Rodriguez, 497 U.S. 177 (1990)) (discussing the Rodriguez holding as finding it impractical to require police to take affirmative steps to confirm the actual authority of consenting individuals with apparent authority). 253. Rodriguez, 497 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). 254. No. 4:10-CR-21-RLV-WEJ, 2010 WL 4877872 (N.D. Ga. Oct. 6, 2010). 255. United States v. Green, No. 4:10-CR-21-RLV-WEJ, 2010 WL 4877872, at *1 (N.D. Ga. 2010). 256. Green, 2010 WL 4877872, at *1. 257. Id. 258. Id. 259. Id. 260. Id. at *2. 261. Id. at *6. 262. Id. at *2. 263. 702 F.3d 1092 (8th Cir. 2013). 264. Recall that in Lindsey, officers found that answering the door and answering “no” when asked if the suspect was there showed authority to consent to a search. United States v. Lindsey, 702 F.3d 1092, 1097 (8th Cir. 2013). 2021] THE DUTY OF FURTHER INQUIRY 263 ambiguity.265 Matthew had already mentioned that he was locking up his uncle’s apartment. Thus, other plausible possibilities arose: Matthew could have been a periodic guest or relative in the apartment for a limited time. This ambiguity would trigger the duty of further inquiry into ownership interest, access, and duration. Officers could learn that Matthew did not have any ownership interest in the home. Matthew lived nearby and it is unknown whether he had a key. Al- though Matthew was related to Paul, his access was limited to “locking up” his uncle’s apartment. Strictly speaking, the duration of his access was limited to completing that task. These are facts which common understanding suggests do not establish authority over a premises. Having said that, one can imagine slightly different facts complicating things and allowing for reasonable officer mistakes. At an extreme, Paul may have allowed Matthew on the premises extensively. Perhaps Matthew was free to enter and exit at will. This would be a hard question for officers to decide in the field. At this stage, reasonable mistakes will be made by officers, depending on Matthew’s responses. Of course, under the Eighth Circuit precedent this is all for naught. Under that approach, there exists no duty for further inquiry and the court would clearly find authority because Matthew had a key, opened the door, and was familiar with the premises.266

E. RESPONSE TO THE PROPOSAL’S POTENTIAL OBJECTIONS This section addresses potential objections to the modified United States v. Terry267 approach. These objections include: (1) the ambiguity threshold is too low, requiring more from officers; (2) it will lead to the loss of evidence that would have been obtained from previously valid consent searches; (3) it will result in excessive litigation regarding reasonableness under the new framework; and (4) it runs counter to the Court’s jurisprudence disfavoring the imposition of Miranda v. Arizona-like268 requirements on law enforcement officers.

i. Ambiguity Threshold The first potential objection to this rule is that the ambiguity threshold is too low. It could be argued that the low threshold is

265. See supra Part III.A. There would be existence of other plausible possibilities for Matthew’s presence. 266. See supra Part II.A. The Eighth Circuit’s liberal approach to not second-guess- ing officer inferences of authority leads to drastically different results than circuits imposing a duty of further inquiry. 267. 915 F.3d 1141 (7th Cir. 2019). 268. 384 U.S. 436 (1966). 264 CREIGHTON LAW REVIEW [Vol. 54 counter to the Illinois v. Rodriguez269 holding that courts should not require officers be right, only that they be reasonable.270 This objection is misguided for two reasons. First, the lower threshold is justified because of the countervailing need for more certainty before officers search a home. Discussed earlier, the Court’s reasonableness inquiry in Rodriguez failed to adequately protect the individual’s interest in his or her home.271 Dialogue between officers and individuals at the entrance of the individual’s home should be encouraged, especially in searches based on voluntary consent. Second, officers are not required to be correct in finding authority, but officers should simply engage in inquiry and avoid relying on inferential pileup. As seen in the Eighth Circuit, officers should not be able to rely on a person answering a door and saying “no one is home” to establish authority for consent. The person that answered the door could have been there for a number of reasons that would have been revealed upon further inquiry. More simply stated, now that officers can make mistakes in this enterprise, and people without authority can consent to a search, officers should at least attempt to ensure that the person has authority.

ii. Loss of Evidence A second potential objection to the revised Terry approach is that further inquiry would lead to loss of evidence courts would otherwise admit under the current doctrine. This could occur for two reasons. First, a duty of further inquiry may lead to fewer mistakes, fewer searches, and admissible evidence in fewer cases. Second, by imposing a duty of further inquiry, individuals will be less likely to continue talking to police and will instead invoke their right to refuse or remain silent. To the former point, one must ask, is evidence admissible under the apparent authority doctrine even desirable? After all, that evidence is based on a mistaken search. The Fourth Amendment protections would exclude the fruits of that search but for the Supreme Court allowing reasonable mistakes.272 Fewer mistakes protect indi-

269.497 U.S. 177 (1990). 270. See Illinois v. Rodriguez, 497 U.S. 177, 185 (1990) (“[W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government—whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement—is not that they always be correct, but that they always be reasonable.”). 271. See supra Part II.B. 272. See Gold, supra note 183, at 397-98 (“[P]erhaps it is not the clarification of the third-party consent exception but rather the Fourth Amendment itself that imposes the cost of lost evidence. Stated differently, we should not consider the evidence lost because the Fourth Amendment never permitted it to be seized.”). 2021] THE DUTY OF FURTHER INQUIRY 265 viduals. Thus, while the Government may lose evidence in some cases, it was evidence they were not otherwise entitled to under the Fourth Amendment. To the latter point, the duty of further inquiry may lead to longer conversations with individuals. Longer communication with individuals may encourage persons to terminate the encounter with the police. However, if an individual ends an interaction with an officer, that is completely within his or her rights. Consent searches are justified for honoring a person’s ability to stand on his or her rights. And without a warrant or an exception to the warrant requirement, the individual is most protected in their home. While losing probative evidence is an important consideration, it is justified when weighed against the individual interests and the illegal nature of the search.

iii. Increased Litigation A third potential objection is that there would be increased litigation over the ambiguity threshold and the new categories of inquiry.273 Albeit true, the current state of litigation for the courts is to evaluate all the surrounding circumstances, evaluate the credibility of the witnesses at the hearing, and parse through similar case law. The modified Terry test, without establishing a rigid rule, gives officers and courts a framework within which to work that is not more burdensome than the analysis courts do now, and it is more precise. Such a framework will lead to more certainty than a totality-of-the-circumstances test. Furthermore, case law in the future would be useful to clarify ambiguity after the officers engaged in their duty of further inquiry.274

iv. Policy Judgment Finally, potential objections to the modified Terry approach could be similar to the criticisms of Miranda v. Arizona.275 Following the Court’s holding in Miranda, there was widespread controversy over whether the Court impermissibly imposed its policy judgments on police officers.276 Although Miranda rights are a mainstay in American

273. See Atwater v. City of Lago Vista, 532 U.S. 318, 350 (2001) (declining to adopt a rule, the Court stated that it “would guarantee increased litigation”). 274. Such cases will likely include cases about what is sufficient ownership interest, access, and duration; additionally, the ambiguity will lie mostly in the categories discerning what extent of access or duration constitutes enough for the mistake to be reasonable. 275. 384 U.S. 436 (1966). 276. Diarmuid F. O’Scannlain, Lawmaking and Interpretation: The Role of a Fed- eral Judge in Our Constitutional Framework, 91 MARQ. L. REV. 895, 912 (2008) (“In my view, it is difficult to understand the majority’s decision in Miranda as anything more than a policy choice. . . . Depending on one’s view, this might have been a reasonable 266 CREIGHTON LAW REVIEW [Vol. 54 criminal law, they did not achieve that status without significant debate.277 Due to the controversy following Miranda, it is unlikely that the modern Supreme Court would adopt any Miranda-like regulations on officers. All of that said, it may be argued that the modified Terry approach is too formulaic and is an illegitimate prophylactic rule.278 But the modified Terry test is different from the Miranda requirements in three significant ways. The modified Terry approach is simply a clarification of existing case law on apparent authority reasonableness. Many constitutional law cases consist of clarification and definition of doctrines that result in formulation with “‘prophylactic’ character” such as in Miranda.279 That is the case here. Rather than craft a rigid rule requiring officers to ask specific questions, the modified Terry approach clarifies when officers have a duty of further inquiry and the content of that inquiry. Many officers are already doing this. In seeking consent to search a home, many officers already look to indicia of joint access or control for most purposes, as suggested in Matlock when upholding third-party consent searches. The modified Terry framework simply defines three categories of inquiry for judges to look to when determining reasonableness of the officer inquiry. By ensuring officers adhere to questions that reasonably could lead to a finding of actual authority, there will be fewer mistakes. By establishing a malleable framework, there will still be flexibility, but more uniformity in officer inquiries at the entrance of homes. Next, Miranda dealt with confessions. Confessions can only come from individuals; there are no alternative means. For an officer to ac- quire a valid confession, they must read rigid Miranda questions.280 No matter the situation, the Miranda court held that if officers engage in a custodial interrogation, certain steps must be followed.281 Con-

solution to the temptations of police interrogation. Yet judges, as envisioned by Montes- quieu and the Founders, are not responsible for creating solutions to social problems, however great.”) 277. See generally Louis M. Seidman, Brown and Miranda, 80 CALIF. L. REV. 673 (1992); Michael E. O’Neill, Undoing Miranda, 2000 B.Y.U. L. REV. 185 (2000). 278. See generally Joseph D. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 NW. U. L. REV. 100 (1985) (arguing that Miranda is not wrong, but illegitimate). But see generally David A. Strauss, The Ubiquity of Pro- phylactic Rules, 55 U. CHI. L. REV. 190 (1988) (responding that Professor Grano’s view is narrow and mistaken). 279. See Strauss, supra note 278, at 191 (agreeing with Professor Grano that courts interpreting the Constitution necessarily carry an implied authority to make rulings that aid them in performing future tasks but disagreeing that there is a difference between conclusive and rebuttable presumptions). 280. See Miranda, 384 U.S. at 444-45. 281. Id. (“[T]he prosecution may not use statements, whether exculpatory or incul- patory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimina- 2021] THE DUTY OF FURTHER INQUIRY 267 versely, the duty of further inquiry only is imposed when there is ambiguous authority at a home, and only clarifies the content of judicial inquiry in evaluating officer reasonableness.282 Undoubtedly, a failure to further inquire can result in exclusion of evidence.283 Unlike with confessions, if a consent search fails, there remains other ways to obtain this evidence. Consent searches are just one exception to the warrant requirement. If police need pertinent evidence, they could get a warrant or take advantage of other exceptions.284 Finally, while the modified Terry approach is a controlled framework at the home, officers maintain flexibility. Suffice it to say, a brighter line is justified because the lack of exigent circumstances indicates that complete flexibility is not necessary.285 Instead, the framework leaves officers with some freedom in how they execute their duty. The duty arises only in the face of ambiguity at the entrance of homes. Note that ambiguity is not always present and can be defeated before there is a duty.286 If there is a duty, there is no rigid test but a framework of categories for courts to evaluate the officer inquiry and inferences that arose from that inquiry. Unlike Mi- randa, there are no rigid question requirements imposed on officers. Officers seeking proper consent should inquire into categories indicating ownership, access, or duration of stay. Courts will work within a more confined framework while officers retain flexibility to make reasonable inferences. Thus, the modified Terry framework provides a reasoned, clarified approach.

tion. . . . As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.”). 282. See supra Part III.B (discussing the content of the duty of further inquiry). 283. This is already done in many courts. As noted, courts find officer determinations unreasonable when they did not have sufficient information. This proposal simply delineates what officers and courts should be looking for. 284. See Illinois v. Rodriguez, 497 U.S. 177, 192 (1990) (Marshall, J., dissenting) (discussing some exigencies as the Court’s “tolerated departures from the warrant requirement” when justified); see Burke, supra note 4, at 539-40 (discussing several special government searches that are considered exceptions to the warrant requirement). 285. Unlike the Court’s concern in Atwater, officers in these situations do not have to draw various distinctions on a moment’s notice. See Atwater v. City of Lago Vista, 532 U.S. 318, 350 (2001). 286. See supra Part III.A (discussing examples of unambiguous situations or means of circumventing the ambiguity threshold). 268 CREIGHTON LAW REVIEW [Vol. 54

IV. CONCLUSION Interpreting the Supreme Court of the United States’ directive in Illinois v, Rodriguez287 that officers may have to inquire further, lower courts should now find officers have a duty of further inquiry when met with ambiguity at the entrance of a home. Ambiguity is defined as the existence of other plausible possibilities for the person’s presence. Courts evaluating the reasonableness of that inquiry will seek facts within three categories: ownership interest, extent of access, and duration of stay. A finding of ownership interest will create a rebuttable presumption that officers acted reasonably. The modified United States v. Terry288 approach is a framework within which officers and courts should work to discern authority of those consenting to searches of homes. The approach modifies the United States Court of Appeals for the Seventh Circuit’s holding in Terry and is a logical outgrowth of the Supreme Court’s holding in United States v. Matlock.289 By defining this duty of further inquiry and the ambiguity threshold, there is more certainty in the law and protection of individual Fourth Amendment rights. The proposed approach should resolve a split of authority amongst the states and United States Circuit Courts of Appeals. Most importantly, the approach will encourage officers to inquire more into whether one has authority before invading the most protected area under Fourth Amendment jurisprudence: the home.

287. 497 U.S. 177 (1990). 288. 915 F.3d 1141 (7th Cir. 2019). 289.415 U.S. 164 (1974). 269

CATHOLIC SOCIAL TEACHING AND THE ROLE OF THE PROSECUTOR

ZACHARY B. POHLMAN†

[Pilate] said to Jesus, “Where are you from?” But Jesus gave no answer. Pilate therefore said to him, “You will not speak to me? Do you not know that I have power to release you, and power to crucify you?” Jesus answered him, “You would have no power over me unless it had been given to you from above . . . .”1

INTRODUCTION Prosecutors wield a tremendous amount of power. As the community’s chief law enforcement officials, their investigatory, charging, and trial decisions have a direct impact on the liberty of the criminal defendant on the other side. Catholic Social Teaching is a body of thought that, among other things, seeks to uphold the dignity of all human persons—dignity that includes the freedom to shape one’s life. Therefore, the sweeping power that prosecutors exercise through their prosecutorial discretion at least raises the question: Is being a prosecutor consistent with the tenets of Catholic Social Teaching? In this Article, I argue that the answer is a resounding “yes.” The body of Catholic Social Teaching and its accompanying commentaries have long recognized the State’s legitimate power to punish criminal offenders to promote the common good. But yet to be explored in the literature is the specific role that prosecutors play in effectuating that end. This Article takes a step in advancing that discussion. Based on two primary principles of Catholic Social Teaching—the dignity of the human person and the common good—I hope to show that being a prosecutor is not only consistent with Catholic Social Teaching but can also be a career and vocation that furthers it. This Article concludes by offering some modest suggestions to prosecutors to ensure that their day-to-day decisionmaking is inspired by the principles of Catholic Social Teaching. This Article proceeds in three Parts. Part I discusses the Church’s approach to criminal justice by focusing on the principles of

† J.D. candidate, Notre Dame Law School, 2021. I am grateful to Marc DeGiro- lami, Stephen Judge, and Matthew Pohlman for their helpful comments and suggestions, and to the editors on the Creighton Law Review for their careful edits. Especial thanks to Julia. 1. John 19:9-11 (RSV-2CE). 270 CREIGHTON LAW REVIEW [Vol. 54

Catholic Social Teaching that lay the groundwork for the State’s legitimate power to punish criminal offenders.2 Part II explores the role of the prosecutor, including the many opportunities a prosecutor has to exercise, and potentially to abuse, vast amounts of prosecutorial discretion.3 Part III synthesizes Parts I and II and reconciles the tensions between prosecutorial work and Catholic Social Teaching.4 Part III concludes by offering some practical proposals to prosecutors as they carry out their charge to “do justice” in accordance with the Church’s social doctrine.5

I. CATHOLIC SOCIAL TEACHING AND CRIMINAL JUSTICE In order to grapple with the moral questions that arise from exercising the duties of a prosecutor, we must first understand the Catho- lic Social Teaching on criminal justice in general. If the State’s end in pursuing criminal justice is not moral, the prosecutor’s end of executing the criminal laws will not be moral either. Or, stated positively, the State’s enforcement of criminal laws—including the punishment of offenders—is moral and even desirable so long as it promotes the principles of the Church’s social doctrine: the dignity of the human person and the common good first among them.

A. THE DIGNITY OF THE HUMAN PERSON AND THE COMMON GOOD The dignity of the human person is at the heart of Catholic Social Teaching.6 An inviolable gift from God, human dignity is rooted in the revealed truth that all human persons are made in the image of God.7 God created us in unity of body and soul, such that we exist in the material world, and our “bod[ies] [are] . . . temple[s] of the Holy Spirit.”8 An implication of this reality is that how we treat our bod- ies—and how we as a society expect and require others to treat us in return—matters. That is to say that the answers to the moral questions that arise in debates about the criminal justice system—e.g., which crimes ought to be punished and what punishment should look like—are built in part upon presuppositions about what it means to be

2. See infra notes 6-60 and accompanying text. 3. See infra notes 61-121 and accompanying text. 4. See infra notes 122-81 and accompanying text. 5. Id. 6. See Sharing Catholic Social Teaching: Challenges and Directions, U.S. CONF. CATH. BISHOPS, http://www.usccb.org/beliefs-and-teachings/what-we-believe/catholic-social-teaching/sharing-catholic-social-teaching-challenges-and-directions.cfm (last visited Mar. 18, 2020). 7. Genesis 1:27; see also PONTIFICAL COUNCIL FOR JUSTICE AND PEACE, COMPEN- DIUM OF THE SOCIAL DOCTRINE OF THE CHURCH ¶ 107 (2004) [hereinafter COMPENDIUM]. 8. 1 Corinthians 6:19 (RSV-2CE). 2021] THE ROLE OF THE PROSECUTOR 271 human.9 As one scholar put it, “moral problems . . . are anthropological problems.”10 Therefore, a morally satisfying discussion about criminal justice cannot hide from the fact that all human persons have dignity but must rather embrace it as its first principle. One aspect of human dignity, specifically our being created in Imago Dei, is our freedom to choose and to shape our lives.11 Indeed, we are endowed with free will so that we can freely choose to follow God.12 Revelation, be it through the Ten Commandments or the Beat- itudes, provides a rich resource and moral imperatives that can help us navigate life’s tough choices. But we, believers and nonbelievers alike, can also turn to the natural law, which is rooted in truth and provides a link between our freedom and moral goodness.13 The natural law is both “natural” and universal because it is promulgated through reason, which is proper to human nature.14 St. Paul explains that the “demands of the [natural] law are written in [the Gentiles’] hearts,” and so, on the hearts of all persons.15 St. Thomas Aquinas would later build upon this foundation in his formulation of the natural law’s first principle: do good and avoid evil.16 Since the Fall of Man, however, when “sin came into the world,” human nature has been deprived of its original holiness.17 Some who sin are punished for their acts in this life through involvement with the criminal justice system. But despite their sinful acts, those who violate criminal laws retain the inviolable dignity inherent to every human person.18 As Pope John Paul II admonished, “the dignity of

9. Cf. Richard W. Garnett, Christian Witness, Moral Anthropology, and the Death Penalty, 17 NOTRE DAME J.L. ETHICS & PUB. POL’Y 541, 542 (2003). 10. Id. 11. CATECHISM OF THE CATHOLIC CHURCH ¶ 1731 (2d ed. 1997) (“By free will one shapes one’s own life.”); cf. COMPENDIUM, supra note 7, ¶ 48 (“The human person cannot and must not be manipulated by social, economic or political structures, because every person has the freedom to direct himself towards his ultimate end.”). 12. SECOND VATICAN COUNCIL, PASTORAL CONSTITUTION ON THE CHURCH IN THE MODERN WORLD, Gaudium et Spes, ¶ 17 (1966) [hereinafter Gaudium et Spes]; cf. Zachary Pohlman, Justification by Faith and Good Works: Thomistic Support, 59 DIA- LOGUE: J. PHI SIGMA TAU 226, 231 (2017) (“[T]o respond fully to God’s sanctifying grace, we must exhibit both faith in Jesus Christ and good works in the world. Because it is only by sanctifying grace that we are justified, it follows that both faith and good works are necessary for justification . . . .”). 13. COMPENDIUM, supra note 7, ¶¶ 138-39. 14. Id. ¶ 140. 15. Romans 2:15 (NABRE). 16. ST. THOMAS AQUINAS, SUMMA THEOLOGIAE, pt. II-II, Q. 79, art. 1, at 1517 (Fa- thers of the English Dominican Province trans., Benzinger Brothers 1948); see also COM- PENDIUM, supra note 7, ¶ 136; cf. Genesis 2:16-17. 17. See COMPENDIUM, supra note 7, ¶ 115; see also Romans 5:12 (RSV-2CE) (“[S]in came into the world through one man and death through sin . . . .”). 18. See Pietro Pavan, Ecumensim and Vatican II’s Declaration on Religious Free- dom, in RELIGIOUS FREEDOM, 1965 & 1975: A SYMPOSIUM ON A HISTORIC DOCUMENT 7, 17 (Walter J. Burghardt. S.J. ed, 1976) (“[E]very human person possesses [dignity] always 272 CREIGHTON LAW REVIEW [Vol. 54 human life must never be taken away, even in the case of someone who has done great evil.”19 And in the Gospels, Jesus made clear that he “came not to call the righteous but sinners.”20 The Church’s social teachings, therefore, promote the dignity of the criminal and the victim alike, always seeking the common good through a personalist lens.21 At its core, personalism is a recognition that “[a]ll of social life is an expression of its unmistakable protagonist: the human person.”22 Thus, social policies must be evaluated from a perspective that treats as primary the dignity of the human person—a perspective that disavows both radical individualism and state totalitarianism.23 While the moral vision of Catholic Social Teaching is built upon the dignity of each human person,24 it remains the case that man is “a social being, and unless he relates himself to others he can neither live nor develop his potential.”25 As social beings, living in community is a natural characteristic, one that distinguishes us from the rest of the earthly creatures.26 Thus, Catholic Social Teaching recognizes the necessity of living in communion with our neighbors in order to uphold and defend the dignity of the human person. The Church therefore calls everyone to promote the common good of society—i.e., the amal- gamation of social conditions that allow human persons to flourish.27 The common good is “common” because everyone necessarily partici-

and everywhere simply by being a person, and not by behaving rightly in the moral field . . . and does not depend on the deeds of the person—whether these be right or wrong . . . .”). 19. Pope John Paul II, Homily at the Papal Mass (Jan. 27, 1999). 20. Mark 2:17 (RSV-2CE). 21. See Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice, U.S. CONF. CATH. BISHOPS (Nov. 15, 2000) [hereinafter U.S. CONF. CATH. BISHOPS, A Catholic Perspective on Crime and Criminal Justice], http://www.usccb.org/issues-and-action/human-life-and-dignity/criminal-justice-restor- ative-justice/crime-and-criminal-justice.cfm; see also Antonio De Feo, The Contribution of the Social Teaching of the Catholic Church in the Construction of a New Concept of “Sustainability,” 8 AGRIC. & AGRIC. SCI. PROCEDIA 792, 794-95 (2016). 22. COMPENDIUM, supra note 7, ¶ 106. 23. See Karol Wojtyla, Thomistic Personalism, in 4 CATHOLIC THOUGHT FROM LU- BLIN 165, 174 (Andrew N. Woznicki, ed., Theresa Sandok, trans., 1993) (“On the one hand, persons may easily place their own individual good above the common good of the collectivity, attempting to subordinate the collectivity to themselves and use it for their individual good. This is the error of individualism, which gave rise to liberalism in modern history and to capitalism in economics. On the other hand, society, in aiming at the alleged good of the whole, may attempt to subordinate persons to itself in such a way that the true good of persons is excluded and they themselves fall prey to the collectivity. This is the error of totalitarianism, which in modern times has borne the worst possible fruit.”). 24. U.S. CONF. CATH. BISHOPS, supra note 6 (“[H]uman life is sacred[,] and . . . the dignity of the human person is the foundation of a moral vision for society.”). 25. Gaudium et Spes, supra note 12, ¶ 12. 26. COMPENDIUM, supra note 7, ¶ 149. 27. Gaudium et Spes, supra note 12, ¶ 26. 2021] THE ROLE OF THE PROSECUTOR 273 pates in it and has an attendant responsibility to further it.28 And while the specific demands of the common good are historically and geographically contingent, certain precepts of the common good per- sist across all times and cultures—among them the commitment to peace, the limited and just empowerment of the State, a sound juridi- cal system, and the pursuit of justice.29 Central to safeguarding these aspects of the common good is a sound criminal justice system. Of course, a Catholic approach to criminal justice must begin with the dignity of the human person.30 This requires standing in solidarity with crime victims, reaching out to them with compassion and understanding.31 At the same time, it requires punishing criminal offenders, both to protect society32 and to redress the harms caused to the direct victims and to society as a whole.33 Pursuant to the principle of subsidiarity, groups within civil society—the Church included—are often the most appropriate as- sociations to minister to crime victims,34 but the State alone has the right and duty to inflict punishments upon criminal offenders.35 The basis for the State’s power, including the power to imprison, its role within civil society, the purposes of punishment, and the value of justice are thus critical pieces to constructing a criminal justice system that promotes the common good. Each of these pieces is explored in the following Section.

B. THE STATE AND CRIMINAL JUSTICE While all human persons have a responsibility to promote the common good, the State is uniquely situated to contribute to that end.36 Before unpacking the State’s power to punish and deter crime as one aspect of its promoting the common good, it is necessary to un-

28. See COMPENDIUM, supra note 7, ¶¶ 164, 166. 29. Id. ¶¶ 166, 169. Moreover, the Catechism of the Catholic Church recognizes the three essential elements of the common good as (1) respect for the person as such, (2) social well-being and the development of society itself, and (3) peace, which results from a just order. CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶¶ 1906-09. 30. U.S. CONF. CATH. BISHOPS, A Catholic Perspective on Crime and Criminal Jus- tice, supra note 21. 31. Id. 32. Id. 33. JOHN PAUL II, THE GOSPEL OF LIFE: ENCYCLICAL LETTER EVANGELIUM VITAE ¶ 56 (Vatican: The Holy See 1995) [hereinafter EVANGELIUM VITAE]. 34. See, e.g., Victims of Crime, U.S. DEP’T JUST., https://www.justice.gov/archive/ fbci/progmenu_voc.html (last visited Mar. 18, 2020) (providing information about the DOJ’s HOPE program which “provides funding to faith-based and other community- based, grassroots crime victim services . . . to foster the development of grassroots crime victim service providers to expand both public visibility and outreach to victims, thereby increasing the number of available service providers”). 35. COMPENDIUM, supra note 7, ¶ 402. 36. See CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶ 1910. 274 CREIGHTON LAW REVIEW [Vol. 54 derstand not only the distinction between State and society but also man’s relationship with each. The personalist principle requires that man be at the center of evaluating the state of the social order.37 At its core, “[t]he State is for man,” not vice versa.38 Jacques Maritain explains this precept philosophically by distinguishing the Body Politic from the State. The former flows from man’s social nature, with “friendship [a]s its very life-giving form.”39 The Body Poli- tic is properly thought of as society, which is itself comprised of families as well as economic, cultural, educational, and religious groups.40 Conversely, the State is only a part of the Body Politic and is concerned solely with promoting public order and the common welfare.41 The State is thus an instrument of the Body Politic—“a part which specializes in the interests of the whole.”42 And properly understood, the State derives its sovereign power not from contractual agreements among the people but from God alone.43 As such, as the Compendium aptly summarizes, “the common good is the reason that the political authority exists.”44 The State derives its legitimate power to punish from its sole purpose to promote the common good.45 The power to inflict punishment upon those who commit crimes is properly and singularly the State’s, so long as it is exercised through its judicial power, which modern constitutions grant the necessary independence in the realm of law.46 Moreover, the Church has long encouraged civilians to obey the civil

37. Jeffrey Kirby, “Personalism” in the Social Teaching of John Paul II, FAITH, July/August 2004, at 25, 25-26. 38. JACQUES MARITAIN, MAN AND THE STATE 13 (1951). 39. Id. at 10. 40. Id. at 11; cf. CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶ 1880 (“A society is a group of persons bound together organically by a principle of unity that goes beyond each one of them.”). 41. MARITAIN, supra note 38, at 10; cf. CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶ 1883. 42. MARITAIN, supra note 38, at 12. 43. See LEO XIII, DIUTURNUM ILLUD ¶ 5 (Vatican: The Holy See 1881) [hereinafter DIUTURNUM ILLUD] (“[T]he right to rule is from God, as from a natural and necessary principle.”); LEO XIII, RERUM NOVARUM ¶ 35 (Vatican: The Holy See 1892) [hereinafter RERUM NOVARUM] (“As the power to rule comes from God, and is, as it were, a participation in His, the highest of all sovereignties, it should be exercised as the power of God is exercised.”). But see MARITAIN, supra note 38, at 49-50 (“God . . . is Sovereign over the created world. . . . [I]n the political sphere, . . . there is no valid use of the concept of Sovereignty.”). 44. COMPENDIUM, supra note 7, ¶ 168. 45. Cf. Romans 13:1-2 (RSV-2CE) (“Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment.”). 46. John Paul II, Address of The Holy Father John Paul II to the National Associa- tion of Magistrates on Contemporary Role of The Judiciary (Mar. 31, 2000), in LIBRARIA EDITRICE VATICANA, 2000. 2021] THE ROLE OF THE PROSECUTOR 275 laws, for it is “clearly a sin . . . not to obey.”47 (Of course, if a civil law is contrary to the natural law, one has no obligation to obey that law.)48 Social sins, those which constitute “a direct assault on one’s neighbor,” are most often the kinds of sins that the state punishes through the criminal law.49 Therefore, the common good is promoted by punishing those convicted of crimes through a just and independent criminal proceeding because such punishments preserve public order and ensure the safety of persons—both through the incapacitation of offenders and by discouraging past and would-be offenders from engaging in behavior that potentially infringes upon human rights.50 But protecting society is not the only aim of punishment that the Church endorses. Indeed, the primary purpose of a criminal penalty is retributivism: “redressing the disorder introduced by the offense.”51 In the words of St. Paul, “rulers are not a terror to good conduct, but to bad . . . . [I]f you do wrong, be afraid, for he does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer.”52 In this sense, the public authority’s imposing a proportional punishment serves as a condition for the offender to regain his freedom in the world.53 When the offender voluntarily accepts his punishment, the criminal sanction takes on the additional value of expiation and may even have a spiritually medicinal purpose, contributing to the correction of the offender.54 This rehabilitation function of punishment is critical to upholding the dignity of offenders and recognizes that even those who have committed heinous crimes have the freedom—like the prodigal son—to repent and turn back to God.55

47. DIUTURNUM ILLUD, supra note 43, ¶ 11. 48. See COMPENDIUM, supra note 7, ¶¶ 400-01. 49. Id. ¶ 118. 50. See id. ¶ 403; CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶ 2266. 51. CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶ 2266; see also Bishops’ Statement on Capital Punishment, 1980, U.S. CONF. CATH. BISHOPS (1980), http:// www.usccb.org/issues-and-action/human-life-and-dignity/death-penalty-capital-punishment/statement-on-capital-punishment.cfm (“[Retribution is] the restoration of the order of justice which has been violated by the action of the criminal.”); Joseph L. Falvey, Jr., Crime and Punishment: A Catholic Perspective, 43 CATH. LAW. 149, 156 (2004) (“[R]etribution is a demand of justice whereby the criminal is compelled to render his proper due in satisfaction of the order violated by his actions.”). 52. Romans 13:3-5 (RSV-2CE). 53. EVANGELIUM VITAE, supra note 33, ¶ 56; see also Marc DeGirolami, On Expres- sivism and Retributivism in ‘The Mighty and the Almighty,’ 4 J. ANALYTIC THEOLOGY 395, 397 (2016) (“Retributivists generally deny that vengeance—in the sense of the satisfaction of the sentiment of wrath through the infliction of pain on the wrongdoer—is the point of state punishment.”). 54. CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶ 2266. 55. See id. ¶ 1439. 276 CREIGHTON LAW REVIEW [Vol. 54

Lastly, no discussion of the proper role of the State, specifically in relation to its function as the arbiter of criminal punishments, would be complete without mention of what is meant by “justice.” The Church teaches that God is the source of all justice, truth, and love.56 It is unsurprising then, that the State’s true dignity “comes not from power and prestige, but from the exercise of justice.”57 John Courtney Murray argued that the State’s coercive power—that is, its exercise of criminal sanctions—promotes three goods: The first is the public peace, which is the highest political good. The second is public morality, as determined by moral standards commonly accepted among the people. The third is justice, which secures for the people what is due to them. And the first thing that is due to people in justice is their freedom, the enjoyment of their personal and social rights . . . .58 Each of these goods, and especially justice, highlights again the vital role that human dignity must play in defining appropriate State action. A just society is one that champions human dignity and ultimately promotes human flourishing. By punishing offenders, the State actually recognizes an important aspect of their inherent dignity, their free will to choose wrong: “[T]he concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust.”59 Put another way, “punishment is a good—a recognition of the choices of the offender.”60 Enforcement of the criminal law—assuming of course that the criminal law punishes conduct that offends the personal rights and dignity of human persons—is thus one important way in which the State participates in promoting a just society, one that recognizes and reverences the humanity of the victim and the offender alike.

56. John XXIII, MATER ET MAGISTRA ¶ 215 (Vatican: The Holy See 1961). 57. MARITAIN, supra note 38, at 19; cf. THE FEDERALIST NO. 51, at 324 (James Madison) (Clinton Rossiter ed., 1961) (“Justice is the end of government. It is the end of civil society.”); Brady v. Maryland, 373 U.S. 83, 87 (1963) (noting that an inscription on the walls of the Department of Justice states that the “United States wins its point whenever justice is done its citizens in the courts”). 58. JOHN COURTNEY MURRAY, RELIGIOUS LIBERTY: CATHOLIC STRUGGLES WITH PLU- RALISM 145 (1964) (emphasis added). 59. C.S. Lewis, The Humanitarian Theory of Punishment, TWENTIETH CENTURY: AUSTL. Q. REV. 5, 10 (1948), reprinted in 31 AMCAP J. 147, 148 (1987) (arguing that not to justify punishment on what is deserved “merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being”). 60. DeGirolami, supra note 53, at 397. 2021] THE ROLE OF THE PROSECUTOR 277

II. THE ROLE OF THE PROSECUTOR

A. PROSECUTOR AS AGENT OF THE STATE

At their core, prosecutors are agents of the State.61 Their role is to prosecute violations of the laws that the people, through their representatives who wield the power of the State, have approved and that criminalize behaviors deemed antithetical to societal flourishing; such behaviors are for that reason deserving of societal blame.62 In the American system, at both the federal and state levels, this responsibility makes prosecutors the community’s chief law enforcement officers.63 While the police initiate one’s involvement with the State’s criminal justice apparatus by making an arrest, it is the prosecutor who must ultimately determine if and how the criminal law is to be enforced against the arrestee. St. John Paul II acknowledged that modern constitutions define the proper relationships between the legislative, executive, and judicial powers and that the judicial department is properly and singularly empowered to inflict criminal punishments.64 The prosecutor as prosecutor, then, has no rightful personal capacity to levy criminal sanctions despite the prosecutor’s role as the State’s enforcer of the criminal law.65 That is, while the prosecutor is both an agent of the State and an officer of the court,66 the prosecutor has historically and constitutionally been placed in the executive department, not the judicial department.67 Despite the scathing differences in opinion on the various legal disputes involved in Morrison v. Olson,68 all nine Jus-

61. See Frank E. Moss, The Professional Prosecutor, 51 J. CRIM. L., CRIMINOLOGY & POLICE SCI. 461, 461 (1960). 62. See supra notes 49-50 and accompanying text. See generally U.S. CONST. art. IV, § 4 (guaranteeing that every State has a republican form of government). 63. See Moss, supra note 61, at 463. 64. See John Paul II, supra note 46. 65. But see Carolyn B. Ramsey, The Discretionary Power of “Public” Prosecutors in Historical Perspective, 39 AM. CRIM. L. REV. 1309, 1312 n.9 (2002) (citing scholars who claim prosecution is quasi-judicial). 66. AM. BAR ASS’N, Standard 3-1.2 Functions and Duties of the Prosecutor, in CRIM- INAL JUSTICE STANDARDS FOR THE PROSECUTION FUNCTION (4th ed. 2017), https:// www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunc- tionFourthEdition/. 67. In United States v. Burr, Chief Justice Marshall noted that “[t]o the executive government is intrusted the important power of prosecuting those whose crimes may disturb the public repose or endanger its safety.” 25 F. Cas. 2 (C.C.D. Va. 1806) (No. 14,692). In the American system, that understanding has not changed since. See, e.g., Morrison v. Olson, 487 U.S. 654, 691 (1988) (“There is no real dispute that functions performed by the independent counsel are ‘executive’ in the sense that they are law enforcement functions that typically have been undertaken by officials within the Exec- utive Branch.”). 68. 487 U.S. 654 (1988). 278 CREIGHTON LAW REVIEW [Vol. 54 tices agreed that prosecution is an executive function.69 The implications of this departmental placement for the prosecutor’s role and the prosecutor’s attendant responsibilities are at least twofold. First, the obvious corollary is that the prosecutor is not part of the legislative branch. Properly understood, the legislative branch legis- lates—it makes laws.70 In a democracy, the source material for legislative enactments is the people’s will, which is why the legislative branch is often referred to as “the people’s branch,”71 an understanding that comports with Maritain’s conception of the relationship between the Body Politic and the State. The State is for man. What man demands from the law—that is, what promotes the common good—is therefore what the legislature ought to enact (assuming, of course, that civil laws that promote the common good comport with the natural law). When he addressed Congress in his 2015 visit to the United States, Pope Francis echoed this very vision for the legislature, one that is more powerfully understood as a normative rather than merely a descriptive account: “Legislative activity is always based on the care of the people. To this you have been invited, called and con- vened by those who elected you.”72 The legislative duty to enact laws through this personalist lens implores lawmakers not only to respond to the will of the people but to legislate affirmatively in ways that otherwise promote the common good. As discussed above, enacting criminal laws, which aim to promote safer communities and to bring offenders to justice, is one important way in which the legislature exercises its duty to further the common good.73 The second implication builds upon the first. Of course, the prosecutor does not participate in the formal legislative process in a way distinct from that of the nonlegislator citizen. But that is not to say that the prosecutor is not intimately connected to the people’s will, and as a consequence, to promoting the common good. Without enforcement of the State’s duly enacted laws, the community would not realize the legislative goods promised. At a high level of generality, the whole of the executive branch cures this inherent limitation of the

69. Saikrishna Prakash, The Chief Prosecutor, 73 GEO. WASH. L. REV. 521, 524 (2005). 70. See THE LEGISLATIVE BRANCH at XII (Paul J. Quirk & Sarah A. Binder eds., 2005). 71. See id. at XI (describing the legislative branch as “the people’s branch”). 72. Scott Neuman, ‘I Am Convinced That We Can Make A Difference,’ Pope Tells Congress, NPR (Sept. 24, 2015), https://www.npr.org/sections/thetwo-way/2015/09/24/ 443070564/watch-live-pope-francis-poised-to-speak-to-joint-meeting-of-congress. 73. Assuming, again, that the criminal law otherwise comports with the natural law. See supra note 48 and accompanying text. 2021] THE ROLE OF THE PROSECUTOR 279 legislative apparatus: it executes the law.74 As a member of the executive branch—indeed, as the archetypal executive official—the prosecutor has a special role to play in executing the laws of the State, the criminal laws chief among them.75 As one court put it, without the prosecutor the law itself is “voiceless and powerless . . . [and] paralyzed.”76 While the prosecutor certainly enforces the criminal law of the State, the main role of the prosecutor lies beyond what might appear in a typical job description. Unlike civil lawyers and even criminal defense attorneys who must “zealously” advocate on behalf of their cli- ents,77 the prosecutor has no such mandate to zealously represent the State’s interests. Rather, the prosecutor’s affirmative duty is simply to “do justice.”78 If the State’s dignity comes from the exercise of justice,79 and if the State is at man’s service,80 then it is unsurprising that the State’s officers would have as their principal task the command to “do justice.”81 The demands of what justice requires, however, while perhaps discernable in theory, are often unclear when the prosecutor makes enormously consequential decisions82—decisions that have a direct impact on the status, indeed on the liberty, of the human person on the other side.

B. PROSECUTORIAL DISCRETION The preceding Section discussed the role of the prosecutor in the abstract. Simply put, the prosecutor enforces the law and does justice. But how the prosecutor’s role as executor of laws and doer of justice plays out on the ground is a concrete problem, not a theoretical one. Perhaps the most complicating factor in fulfilling both aspects of the prosecutor’s role is the tremendous amount of discretion prosecutors are afforded.83 From the initial investigation to sentencing and be-

74. See generally Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701 (2003). 75. See, e.g., State v. Winne, 96 A.2d 63, 72 (N.J. 1953) (referring to the prosecutor as the “foremost representative of the executive branch of the government in the enforcement of the criminal law”). 76. State ex rel. Johnston v. Foster, 3 P. 534, 538 (Kan. 1884). 77. Model Rules of Professional Conduct: Preamble & Scope, AM. BAR ASS’N, https:// www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_ professional_conduct/model_rules_of_professional_conduct_preamble_scope/ (last visited Mar. 18, 2020). 78. See Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 46 n.2 (1991). 79. See supra note 57 and accompanying text. 80. See supra note 38 and accompanying text. 81. Cf. Berger v. United States, 295 U.S. 78, 88 (1935) (“[W]hile [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones.”). 82. Zacharias, supra note 78, at 104-07. 83. See Prakash, supra note 69, at 1727. 280 CREIGHTON LAW REVIEW [Vol. 54 yond, prosecutors have the ability to engage the power of “the judicial machinery” against one of the very citizens whom the law is meant to protect in the first place.84 At each step in an adversarial criminal proceeding, the prosecutor must make discretionary decisions, with little to no oversight or transparency about, inter alia, how to investigate, whom to charge, whether to offer a plea deal, how to proceed at trial, and what sentence to recommend.85 This Section explores the prosecutor’s specific role and the vast amount of discretion that the prosecutor is afforded at each of these stages in the criminal process. By distilling the day-to-day work of the prosecutor from the prosecutor’s big-picture role of enforcing the law and doing justice, this Sec- tion sets up the potential tensions between prosecution and Catholic Social Teaching.86

1. Investigation

When a crime is reported, a government agency flags suspicious activity, or an arrest is made, the government may launch a criminal investigation. In the United States, at both the state and federal levels, prosecutors play a “prominent role” in how these investigations are carried out.87 With little to no oversight, prosecutors “screen” arrests and ongoing investigations to decide whether and how the investigation is to continue.88 From making tactical decisions to ensuring that law enforcement complies with the constitutional search warrant and other requirements, prosecutors are, from the very beginning, on the front lines of directing what eventually becomes a criminal case.89 And the decisions they make at each step of the investigation have

84. See Rothgery v. Gillespie County, 554 U.S. 191, 211 (2008). 85. Abbey L. Dennis, Note, Reining in the Minister of Justice: Prosecutorial Over- sight and The Superseder Power, 57 DUKE L.J. 131, 136 (2007). The steps in the criminal adjudication process discussed herein are representative of the kinds of decisions that prosecutors face, though they are not comprehensive. For example, prosecutors must also make decisions regarding questions of probation, parole, and bail. 86. This Article focuses on the role of the prosecutor as it pertains to questions of individual crimes, criminals, and victims. The prosecutors and other civil servants who direct the justice system also enjoy vast amounts of discretion in deciding which cases and crimes to pursue at a much higher level of generality. While this Article does not directly address those concerns, the prosecutor’s duty to “do justice” so as to further the common good—and always through a personalist lens—applies all the same, irrespec- tive of the scale upon which prosecutorial decisions are made. 87. John L. Worrall, Prosecution in America: A Historical and Comparative Ac- count, in THE CHANGING ROLE OF THE AMERICAN PROSECUTOR 1, 16 (2008). 88. See Brian Frost, Prosecution Policy and Errors of Justice, in THE CHANGING ROLE OF THE AMERICAN PROSECUTOR 51, 51-52 (2008); Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual Framework, 15 AM. J. CRIM. L. 197, 231-32 (1988). 89. See Worrall, supra note 87, at 4; Investigation, U.S. DEP’T JUST., https:// www.justice.gov/usao/justice-101/investigation (last visited Mar. 18, 2020). 2021] THE ROLE OF THE PROSECUTOR 281 real down-the-line consequences for the liberty of the criminal suspect and the good of society as a whole.

2. Charging Decisions

The prosecutor must examine the evidence collected during the investigation and decide what, if any, charges to bring against the subject of the investigation.90 While the charges that a prosecutor brings must be based upon evidence that shows probable cause that the defendant has committed a crime,91 little else in the way of legal restraints stands between the prosecutor and her charging decision. And the legal mechanisms that purport to cabin that vast discretion are mostly without any real bite. For example, a prosecutor is free to bring overlapping charges if multiple statutes criminalize the same conduct;92 and likewise, while the Double Jeopardy Clause does not permit a defendant to be charged with the same crime twice, it does allow federal and state prosecutors to bring successive prosecutions if the underlying conduct is prohibited by both federal and state law.93 Lastly, victims of crime cannot themselves prosecute alleged offenders, and courts generally cannot compel prosecutors to prosecute a specific criminal incident; that power lies solely with the prosecutor.94 The decision to bring charges—and if charges are brought, which ones—is thus an immensely important, and largely unchecked, prosecutorial power.

90. For felonies in the federal system, formal charges must be issued by a grand jury via an indictment. See U.S. CONST. amend. V. Some states follow this practice, but they are not constitutionally required to. See Charging, U.S. DEP’T JUST., https:// www.justice.gov/usao/justice-101/charging (last visited Mar. 18, 2020). 91. See, e.g., AM. BAR ASS’N, supra note 62 (“A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.”); Pre- liminary Hearing, U.S. DEP’T JUST., https://www.justice.gov/usao/justice-101/preliminary-hearing (last visited Mar. 18, 2020). 92. See United States v. Batchelder, 442 U.S. 114, 118-21 (1979). But see Block- burger v. United States, 284 U.S. 299, 304 (1932) (establishing that, under the Double Jeopardy Clause, a defendant can be charged under multiple statutes for the same conduct only if each crime contains an element not found in the other). 93. See Gamble v. United States, 139 S. Ct. 1960 (2019); see also Zachary B. Pohl- man, Stare Decisis and the Supreme Court(s): What States Can Learn from Gamble, 95 NOTRE DAME L. REV. 1731, 1737 (2020) (discussing the Court’s recent 7–2 reaffirmation of successive prosecutions under the dual-sovereignty doctrine). 94. See, e.g., Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973). A crime victim could, of course, seek civil remedies as a plaintiff if her injury gives rise to a cause of action. 282 CREIGHTON LAW REVIEW [Vol. 54

3. Discovery

Once a bill of information is filed or an indictment is returned and probable cause is found, the prosecutor must prepare for trial. The discovery process includes reviewing the evidence and interviewing potential witnesses.95 Importantly, prosecutors must turn over to the defendant evidence that “would tend to exculpate” the defendant.96 But despite this constitutional requirement, the so-called Brady rule is fairly easy for prosecutors to “bend, if not break,” as some engage in prosecutorial “gamesmanship to avoid compliance.”97 Because many defendants plead before going to trial, the scope of Brady violations is difficult to estimate,98 such that the choice to fully comply with this rule is once again, more or less, left to the discretion of the prosecutor.

4. Plea Bargaining

One increasingly popular tool in the prosecutor’s toolkit is the plea bargain. The defendant, often when faced with strong evidence of his guilt, can choose to plead guilty to the charge in open court and forgo the expense and rigor of a trial.99 Sometimes the prosecutor will offer to reduce the requested sentence or drop additional charges if the defendant pleads guilty.100 In theory, this is an efficient way of effectuating justice: guilty defendants would plead and receive a lesser sentence than they would otherwise receive if convicted at trial, while innocent defendants would reject a plea deal and would have the charges dropped for lack of sufficient evidence or would be acquitted at trial.101 But we don’t live in an ideal world. The plea-bargaining process is often coercive, forcing defendants to weigh the costs of fac- ing a judge or jury rather than focusing on actual guilt or inno-

95. Discovery, U.S. DEP’T JUST., https://www.justice.gov/usao/justice-101/discovery (last visited Mar. 18, 2020). 96. Brady v. Maryland, 373 U.S. 83, 87-88 (1963). 97. Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 7 CASE W. RSRV. L. REV. 531, 531 (2007); see also Eugene Cerruti, Through the Looking Glass at the Brady Doctrine: Some New Reflections on White Queens, Hobgoblins, and Due Process, 94 KY. L.J. 211, 274 (2005) (“Brady is now best understood as a rule of prosecutorial privilege rather than a rule of disclosure.”); Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Ex- culpatory Evidence, 22 OKLA. CITY U. L. REV. 833, 836 (1997) (suggesting that Brady “is a right that almost begs to be violated”). 98. See Gershman, supra note 97, at 536. 99. Plea Bargaining, U.S. DEP’T JUST., https://www.justice.gov/usao/justice-101/ pleabargaining (last visited Mar. 18, 2020). 100. Id. 101. F. Andrew Hessick III, Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. PUB. L. 189, 191 (2002). 2021] THE ROLE OF THE PROSECUTOR 283 cence.102 According to one scholar, “[l]egislators want to make it easy for prosecutors to get the conviction without having to go to trial,” and prosecutors who are low on resources “want to use that leverage.”103 The result is a system that can be used to punish people “who have the nerve to go to trial.”104 As with the charging decision itself, the prosecutor’s decision is one within her prosecutorial discretion.

5. Trial

The most public part of a prosecutor’s job happens at trial. For the (relatively few)105 cases that make it to trial, the prosecutor con- trols how it is run. In the case of a jury trial, the prosecutor and the defendant must select the jury, and while some legal rules restrict how a prosecutor conducts herself during voir dire, the prosecutor’s discretion in choosing jurors is largely guided by her overall charge to “do justice.”106 Similarly, while prosecutors are forbidden by the governing ethical rules from misleading the jury during witness questioning, detecting such subversions is often difficult.107 Lastly, when it comes to argument, the prosecutor is limited to referencing the evidence in the record, but appeals to emotion are tough to avoid in the adversarial system.108 The true standard that governs the prosecutor’s actions in all of these scenarios? The prosecutor’s discretion.

6. Sentencing Once a defendant has been convicted, the prosecutor may recommend a sentence to the sentencing judge. While the federal govern- ment109 and many states110 have enacted sentencing guideline ranges, prosecutors still retain discretion over what sentence to recommend within the guideline range and may on occasion seek a

102. Jonathan A. Rapping, Who’s Guarding the Henhouse? How the American Prose- cutor Came to Devour Those He Is Sworn to Protect, 51 WASHBURN L.J. 513, 547 (2012). 103. Richard Oppel, Jr., Sentencing Shift Gives New Leverage to Prosecutors, N.Y. TIMES (Sept. 25, 2011) (quoting Professor Rachel Barkow), http://www.nytimes.com/ 2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html?_r=1 &pagewanted=all; see also Rapping, supra note 102, at 551-52 (reporting that economic factors and large caseloads may encourage prosecutors to engage in plea bargaining). 104. Oppel, supra note 103 (quoting Professor Rachel Barkow). 105. Rapping, supra note 102, at 551 (“Today, more than ninety-five percent of all criminal cases are resolved through guilty pleas.”). 106. Zacharias, supra note 78, at 90. 107. Cf. id. at 93-95. 108. See id. at 95-102. 109. Sentencing, U.S. DEP’T JUST., https://www.justice.gov/usao/justice-101/sentencing (last visited Mar. 18, 2020). 110. Richard S. Frase, State Sentencing Guidelines: Diversity, Consensus, and Un- resolved Policy Issues, 105 COLUM. L. REV. 1190, 1191 (2005). 284 CREIGHTON LAW REVIEW [Vol. 54 nonrange sentence.111 The prosecutor’s recommendation is one factor among many that a judge considers when deciding the defendant’s sentence, but is one that has been shown to make a difference in sentencing decisions.112 The most consequential sentencing decision that a prosecutor can make, however, is the decision to seek the death penalty. While the death penalty may be imposed only for a few crimes,113 for those cases where capital punishment is legally available, it is up to the prosecutor to make the momentous decision whether to seek to use the power of the State to end someone’s life.114

C. TENSIONS BETWEEN PROSECUTION AND CATHOLIC SOCIAL TEACHING

Prosecutors wield an enormous amount of power—power that is exercised with relatively little oversight. The decisions that prosecutors make every day have immediate and potentially significant consequences. From asking the domestic abuse victim to testify in open court to recommending a decades-long sentence, prosecutors are constantly faced with decisions that affect the lives of human persons in very concrete ways. But if the personalist lens is lost—if the victim becomes a mere prop and the defendant is dehumanized both inter- nally and to the jury—prosecutors risk treating both victims and offenders as means to a singular end: a conviction. Catholic Social Teaching could not be clearer that the dignity of the human person must be the principle upon which society, and hence, the criminal justice system, is built. St. John Paul II taught that human dignity requires that humans always be treated as an end, never as a means.115 Even the common good, whose focus is on the collective, is “good” because it establishes the social conditions that allow individual human persons, cognizant of their social nature,

111. See generally Steven E. Vance et al., Weighing the Value of the Bargain: Prosecutorial Discretion After Sentencing Guidelines, 30 CRIM. JUST. POL’Y REV. 1086 (2019). 112. See Jung Wook Kim & Su Bok Chae, Anchoring Effect of the Prosecutor’s De- mand on Sentence: Evidence from Korean Sexual Crime Cases, KDI J. ECON. POL’Y, Au- gust 2017, at 1 (finding that judges in South Korea anchored their sentencing decisions on the sentencing recommendations of prosecutors); Sentencing, U.S. DEP’T JUST., supra note 109. 113. See Crimes Punishable by Death, DEATH PENALTY INFO. CTR., https:// deathpenaltyinfo.org/facts-and-research/crimes-punishable-by-death (last visited Mar. 18, 2020). 114. See CHARLES LANE,STAY OF EXECUTION: SAVING THE DEATH PENALTY FROM IT- SELF 99 (2010) (“[T]he twin issues of variable prosecutorial discretion and variable jurisprudence loom larger as the death penalty gets smaller.”). 115. KAROL WOJTYLA, LOVE AND RESPONSIBILITY 27-28 (H. T. Willetts trans., Farrar, Straus & Giroux, Inc. 1981) (1960). 2021] THE ROLE OF THE PROSECUTOR 285 to flourish.116 In our criminal justice system, however, one in which potentially coercive plea bargains are the norm and county prosecutor election chances are bolstered by higher conviction rates,117 there are potential obstacles that make it difficult for the prosecutor to see the other as “thou”118—that is, to see and to honor the humanity of both the victim and the offender. Consider the lifespan of a criminal case. Starting with who and how to investigate, the prosecutor faces dilemmas of moral significance: Which crimes are worth investigating? Which arrestees should be released? What is in the best interest of the community? How can justice be served for crime victims? And the gravity of the decisions a prosecutor must make doesn’t slow down. Should the prosecutor charge a felony or a misdemeanor? What about the reluctant accom- plice? The first-time offender? The drug addict? Is a plea bargain appropriate? Should the maximum penalty be sought? Any and all of these decisions may potentially tempt the prosecutor to forget about the humanity of the person on the other side. Looking at the outcome of a successful prosecution raises similar questions. On the one hand, the common good is promoted when crime is reduced and people can live their lives assured of domestic peace. Crime victims deserve justice. On the other hand, however, the prosecutor must wrestle with the fact that “succeeding” means that someone is (most likely) going to be incarcerated. But Catholic Social Teaching teaches that one important aspect of human dignity is freedom.119 It is our free will, our ability to order our lives, that makes us creatures created in the image of God.120 And this goes for all human persons; our dignity cannot be forfeited. The United States Conference of Catholic Bishops affirms that criminal “offenders are children of God” and urges that “their lives and dignity . . . be protected and respected.”121 The prosecutor must at least ask, then, is it moral to seek imprisonment of criminal offenders? Is State imprisonment of criminal offenders an impermissible means by which to promote the end, the common good?

116. Gaudium et Spes, supra note 12, ¶ 26. 117. See, e.g., David Lat, Book Review, How Tough-on-Crime Prosecutors Contribute to Mass Incarceration, N.Y. TIMES (Apr. 8, 2019), https://www.nytimes.com/2019/04/08/ books/review/emily-bazelon-charged.html (“The vast majority of state and local prosecutors in the United States are elected, and taking a punitive tack was generally considered to be the path to re-election—and, frequently, election to higher office.”). 118. See COMPENDIUM, supra note 7, ¶ 213. 119. See supra notes 11-12 and accompanying text. 120. Id. 121. U.S. CONF. CATH. BISHOPS, A Catholic Perspective on Crime and Criminal Jus- tice, supra note 21. 286 CREIGHTON LAW REVIEW [Vol. 54

Conversely, would it be immoral to fail to incarcerate a criminal offender who has caused personal and societal harm? Harm that is itself an affront to the human dignity of the victim? Does failing to prosecute somehow infringe upon the innocent crime victim’s freedom to shape her life?

* * * These are not simple questions. The primary premise of Catholic Social Teaching is also what makes these questions so difficult: all human beings have dignity—the offender, the victim, and those who constitute society generally. Any just use of the criminal justice system must acknowledge and balance these seemingly competing claims to have one’s dignity recognized by the State. For the prosecutor ea- ger to carry out her duties in accordance with the principles of Catho- lic Social Teaching, perhaps all of these considerations boil down to one more question: Is it possible to be a prosecutor and to live in accordance with the principles of Catholic Social Teaching?

III. RECONCILING TENSIONS BETWEEN PROSECUTION AND CATHOLIC SOCIAL TEACHING Undoubtedly, tensions exist between exercising the duties of a prosecutor and Catholic Social Teaching. Jesus teaches us that it is the meek, not the powerful, who will inherit earth122 and that the prisoner is to be shown hospitality and to be set free.123 Yet prosecutors, day in and day out, wield the enormous power the State in seeking the imprisonment of offenders. Despite the seeming prima facie conflict, however, the Church recognizes and in fact deems as necessary the tremendously important role that law enforcement officials— prosecutors included—play in promoting the common good.124 Prop- erly understood, the role of the prosecutor is therefore not only consistent with the precepts of Catholic Social Teaching but can also be a vehicle for fostering those precepts, and consequently, a more just world. While the Catholic Church has clearly defended the State’s legitimate power to punish criminals through the judicial system, the Cath- olic Social Teaching literature has not directly explicated the prosecutor’s legitimate duties and attendant responsibilities within

122. Matthew 5:5 (NABRE). 123. See Hebrews 13:1-3 (NABRE); see also Luke 4:18-19 (NABRE) (“‘The Spirit of the Lord is upon me, because he has anointed me to bring glad tidings to the poor. He has sent me to proclaim liberty to captives and recovery of sight to the blind, to let the oppressed go free, and to proclaim a year acceptable to the Lord.’”). 124. See COMPENDIUM, supra note 7, ¶¶ 402-04. 2021] THE ROLE OF THE PROSECUTOR 287 the State’s criminal justice apparatus. This Part undertakes that task. Building upon and synthesizing the Church’s views on the personalist principle, the inherent value of work, and the legitimate power of the State in fostering peace and justice, this Part shows that despite—and in fact, because of—the immense power and discretion that prosecutors hold, prosecutors can be a force for the common good within the Catholic Social Teaching framework.

A. THE INHERENT VALUE OF WORK In one sense, prosecutors are not special. Just as teachers teach, actors act, and managers manage, so do prosecutors prosecute. That is, prosecution is one occupation among many that a person may choose to pursue. In theological terms, being a prosecutor is a vocation—a calling that one may discern and to which one may respond.125 The Church recognizes that while we are all called to work for unity as children of God,126 the laity have a special calling to fulfill that obligation through the secular nature of our earthly vocations.127 Viewing prosecution first as a job, i.e., a particular species of paid, professional employment, allows us to view the prosecutor from an in- trospective, personalist perspective. Only after establishing the inherent value of the prosecutor’s work can we analyze the normative dimensions of the external impact that prosecutors can and should have on their local communities. To start, work is good in itself. Work is part of the original state of man and preceded the Fall; it was only after the sin of Adam and Eve, who disobeyed God, that work became toilsome.128 Thus, even after the Fall, God continues to call us to cultivate and care for creation through work.129 Additionally, work is an essential condition for living a decent life and an effective instrument against poverty.130 By working, we obtain the resources necessary to provide not only for our- selves but for our families.131 As the Compendium suitably summarizes, “[b]esides being a decisive paradigm for social life, work has all the dignity of being a context in which the person’s natural and super- natural vocation must find fulfillment.”132

125. See CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶¶ 898-900, 2461. 126. See COMPENDIUM, supra note 7, ¶ 19. 127. See id. ¶ 83. 128. Id. ¶ 256; see also Genesis 3:6-8 (NABRE). 129. COMPENDIUM, supra note 7, ¶ 256. In addition to a calling, work is a duty. See id. ¶ 264; JOHN PAUL II, LABOREM EXERCENS ¶ 16 (1981) [hereinafter LABOREM EXERCENS]. 130. COMPENDIUM, supra note 7, ¶ 257. 131. Id. ¶ 294. 132. Id. ¶ 101. 288 CREIGHTON LAW REVIEW [Vol. 54

In the quintessential magisterial teaching on work, St. John Paul II identified the objective and subjective dimensions of work.133 The objective dimension of work is the activity that man does in exercising dominion over the earth; it is the process of “subduing the earth” and producing things, a process that is contingent upon changes in techno- logical, cultural, social, and political conditions.134 Conversely, the subjective dimension of work is the activity of the human person as such, which focuses on work’s role in helping man realize his humanity and inherent dignity; because it is proper to the human person, the subjective dimension of work is stable across times and cultures.135 Given its personalist focus, the subjective dimension of work must take precedence over the objective dimension of work.136 In addition to the objective and subjective dimensions of work, work also has an intrinsic social dimension, which is bound up with the subjective dimension of work because humans are inherently social creatures. Es- pecially in recent times, “work is work with others and work for others: it is a matter of doing something for someone else.”137 Evaluations of the value of work, e.g., prosecution, must therefore be primarily concerned with the work’s subjective and social aspects. In other words, faith, in which the Church’s teachings on work are rooted, cannot be separated from work.138 Of course, to rest solely upon this discussion of work as an abstract matter partially begs the question. Work is good in itself, yes, and prosecution is certainly one type of work. But does it follow that the work of prosecutors is therefore good in itself? Or reconcilable with Catholic Social Teaching? Yes and no. Prosecutorial work is good insofar as it helps the prosecutor realize her humanity and dignity and is pursued as a response to her earthly vocation. Indeed, “it is always man who is the purpose of the work, whatever work it is that

133. See LABOREM EXERCENS, supra note 129, ¶¶ 5-6. 134. Id. ¶ 5; COMPENDIUM, supra note 7, ¶ 270. 135. LABOREM EXERCENS, supra note 129, ¶ 6; COMPENDIUM, supra note 7, ¶ 270. 136. COMPENDIUM, supra note 7, ¶ 271. 137. JOHN PAUL II, CENTESIMUS ANNUS ¶ 31 (Vatican: Holy See 1991). 138. As the Second Vatican Council eloquently expressed: Human labor . . . comes immediately from the person, who as it were stamps the things of nature with his seal and subdues them to his will. By his labor a man ordinarily supports himself and his family, is joined to his fellow men and serves them, and can exercise genuine charity and be a partner in the work of bringing divine creation to perfection. Indeed, we hold that through labor offered to God man is associated with the redemptive work of Jesus Christ, Who conferred an eminent dignity on labor when . . . He worked with His own hands. Gaudium et Spes, supra note 12, ¶ 67; see also Avery Cardinal Dulles, Catholic Social Teaching and American Legal Perspective, 30 FORDHAM URB. L.J. 277, 278 (2002); F. Giba-Matthews, A Catholic Lawyer and the Church’s Social Teaching, 66 FORDHAM L. REV. 1541, 1544 (1998). 2021] THE ROLE OF THE PROSECUTOR 289 is done.”139 But surely the content of the work itself also matters.140 While the subjective dimension of work is to be prioritized over the objective, and while there is inherent value in even the most monoto- nous work,141 if the product of one’s work is antithetical to the common good and to the dignity of others, workers will be unable to realize and find fulfillment in their own human dignity. Thus, it is only by analyzing the ends of prosecution and the specific means used to achieve those ends that we can determine whether the role of the prosecutor is consistent with Catholic Social Teaching as a whole— that is, whether the prosecutor promotes human dignity and the common good.142

B. “DOING JUSTICE” In his prophetic encyclical that launched the modern Catholic So- cial Teaching project, Pope Leo XIII devoted special attention to the important role that public servants play in advancing the common good. Emphasizing the Church’s long-held position, Rerum Novarum posits that the State is for man—that man is the whole reason for the State’s existence.143 As such, Pope Leo XIII writes that those civil servants whose work it is to “administer justice” on behalf of the State should be held in the “highest estimation.”144 He then explains what justice requires of public servants in a way that has direct bearing on the work of prosecutors. Acknowledging first that all sovereign power comes from God, Pope Leo XIII admonishes that public servants must use their earthly power to “anxiously safeguard the community and all its members.”145 “Rights,” he continues, “must be religiously respected wherever they exist, and it is the duty of the public authority to prevent and to punish injury, and to protect every one in the possession of his own.”146 Since Rerum Novarum, the Church has continued to recognize the critical role that public servants play in fostering the common good and has further delineated specific tenets of prosecutorial ethics.

139. LABOREM EXERCENS, supra note 129, ¶ 6; see also CATECHISM OF THE CATHOLIC CHURCH, supra note 11, ¶ 2428; COMPENDIUM, supra note 7, ¶ 272 (“[W]ork is for man, not man for work.” (emphasis omitted)). 140. Cf. COMPENDIUM, supra note 7, ¶ 272 (“Independently of its objective content, work must be oriented to the subject who performs it, because the end of work, any work whatsoever, always remains man.”). 141. LABOREM EXERCENS, supra note 129, ¶ 6. 142. See supra notes 6-60 and accompanying text; cf. COMPENDIUM, supra note 7, ¶ 338 (stating that private businesses should be assessed by “their capacity to serve the common good”). 143. RERUM NOVARUM, supra note 43, ¶ 35. 144. Id. ¶ 34. 145. Id. ¶ 35. 146. Id. ¶ 37. 290 CREIGHTON LAW REVIEW [Vol. 54

Speaking on the role of prosecutors directly, the Compendium notes that establishing criminal responsibility is always personal in character and that prosecutorial activity “must strive to be a meticulous search for truth and must be conducted in full respect for the dignity and rights of the human person.”147 More specifically, prosecutors are called to exercise due discretion in reviewing the evidence, mindful always of the principle of the presumption of innocence.148 Investiga- tions must be conducted fairly, never involving the use of torture nor the prolonged detention of defendants.149 In sum, “[t]he commitment of civil and political authorities, called to serve the personal and social vocation of mankind according to their own areas of competence and with the means available to them, can find in the social teaching of the Church an important support and a rich source of inspiration.”150 This inspiration comes in the form of both praise for the necessary work that prosecutors do and principles upon which to base ethical prosecutions—ones that truly promote the common good. So, in light of the Catholic Social Teaching on the State and criminal justice generally and the role of the prosecutor more specifically, is it possible to be a prosecutor and to live in accordance with the Church’s teachings? Most certainly. The prosecutor is an agent of the State who is charged principally with “doing justice.” And Rerum Novarum teaches that, to the public servant, “justice should be held sacred.”151 As the community’s chief law enforcement official, the prosecutor helps bring to fruition the societal goods promised by legislation that comports with the natural law—namely, protecting human dignity and furthering the common good of society. If crime victims’ dignity is to be honored, justice must be served where wrongdoing has occurred. Prosecutors make that happen. Moreover, the prosecutor’s power to engage the State’s judicial department to seek the punishment and even the imprisonment of those who violate the community’s laws is a process that redresses past societal wrongs, protects society from future harm, and encourages rehabilitation of the offender.152 The Church endorses each of these justifications of punishment because they champion human dignity.153 The offender’s dignity is recognized by honoring his free capacity to choose wrong and by imposing a deserved and proportional punishment, offering the offender a chance to reform on both societal

147. COMPENDIUM, supra note 7, ¶ 404. 148. Id. 149. Id.; see also John Paul II, supra note 46. 150. COMPENDIUM, supra note 7, ¶ 534. 151. RERUM NOVARUM, supra note 43, ¶ 36. 152. See supra notes 49-55 and accompanying text. 153. See supra notes 54-59 and accompanying text. 2021] THE ROLE OF THE PROSECUTOR 291 and spiritual levels.154 The victim’s dignity is honored by showing her compassion and by bringing the offender to justice, ensuring a more peaceful society.155 To be sure, weighing the offender’s dignity against that of the victim is not a simple task, and there is certainly room for reasonable disagreement as to how those considerations should be balanced. It is precisely because of the difficult social and moral questions that prosecutors face daily that prosecutors inspired by Catholic Social Teaching are needed. The Church, recognizing this need, rightfully acknowledges the critical role that prosecutors can play in promoting human dignity and the common good.

C. PROSECUTORIAL DISCRETION AS AN OPPORTUNITY

Despite the potential for congruity between prosecution and Cath- olic Social Teaching, there remains also the potential for prosecutorial misconduct, wherein the prosecutor acts contrary to the Church’s teachings. That is, while the two can be consistent, they do not necessarily have to be. The potential for prosecutorial abuses of power stems in no small part from the tremendous amount of discretion and the limited amount of oversight that prosecutors enjoy. But building upon the precepts of Catholic Social Teaching, prosecutorial discretion can be viewed not as a temptation to grip tightly the alluring levers of power, but as an opportunity to do good—to promote justice. From initiating an investigation to post-conviction appeals, prosecutors make highly consequential choices. If these daily choices are made with an eye toward promoting the common good and the dignity of the human person, the interests of justice will likewise be promoted. In this spirit, this Section offers some modest suggestions to prosecutors on how to “do justice” in accordance with Catholic Social Teaching in a concrete way. Let’s start with investigations. The degree to which prosecutors are involved in any one investigation varies by case and by locality. Prosecutors can, however, inform themselves of the investigative techniques used to ensure that the personalist principle drives decision- making. For example, while algorithms can be used to predict when and where crimes are likely to occur,156 prosecutors should be aware of their potential to overgeneralize and provide systematically biased

154. See id.; see also COMPENDIUM, supra note 7, ¶ 402 (“[T]he lawful public authority must exercise the right and the duty to inflict punishments according to the seriousness of the crimes committed.”). 155. See supra notes 32-35 and accompanying text. 156. See Lyria Bennett Moses & Janet Chan, Algorithmic Prediction in Policing: Assumptions, Evaluation, and Accountability, 28 POLICING & SOC’Y 806 (2018). 292 CREIGHTON LAW REVIEW [Vol. 54 results.157 In other words, overreliance on algorithms in criminal investigations risks viewing individuals not as “thou” but as “it,” reducing the human person to a mere piece in a utilitarian puzzle.158 That is not to say that using predictive technologies is categorically immoral; indeed, lowering crime rates itself promotes the common good, and where algorithms lead to greater efficiencies that allow police to catch more criminals, crime victims are more likely receive the justice they deserve. Rather, prosecutors must be vigilant and honest about the reality that algorithmic policing and other investigative techniques may be used in a way that does not always recognize the humanity of those involved in the criminal justice system. Awareness of this potential for abuse, and taking corrective measures when bias creeps in, is a small but important step that prosecutors can take to promote human dignity in criminal investigations. When it comes to charging decisions, prosecutors must dutifully adhere to their charge to “do justice,” a directive that does not require pursuing maximum charges for every arrest. To this end, one commentator challenges prosecutors to “examine their consciences and ask whether they truly are following the commandment to love their neighbor in their daily work, or whether they are succumbing to fear and ‘tough on crime’ political rhetoric.”159 Admittedly, such introspec- tion may be toughest for District Attorneys, whose election bids are often helped by “tough on crime” promises and past actions.160 But political power, even if sought with the best intentions, is not a permissible end if the means used to obtain it deride the human dignity that each criminal defendant is owed.161 As with the potential for predictive policing to do both good and bad, sometimes, and even oftentimes, filing maximum charges is appropriate. Before taking this step, or any charging decision, however, the prosecutor must consult her conscience and decide what is in the best interests of the community, always keeping the dignity of the victim and the offender at the forefront of her mind.

157. See Dan L. Burk, Algorithmic Legal Metrics, 96 NOTRE DAME L. REV. 1147, 1181 (2021) (“We have already seen that algorithmic processing cannot produce neutral profiles or objective scores, but is unavoidably biased, often in unpredictable ways.”). 158. See id. at 1202-03 (“It is one thing for a municipality to use a predictive algorithm to anticipate snarled vehicular traffic so as to place stop lights; it is quite another thing for a municipality to use a predictive algorithm to anticipate criminal behavior so as to place police officers.”). 159. R. Michael Cassidy, Catholic Social Thought and Criminal Justice Reform, 15 J. CATH. SOC. THOUGHT 261, 262 (2018). 160. See supra note 118 and accompanying text. 161. See supra note 116 and accompanying text. 2021] THE ROLE OF THE PROSECUTOR 293

In the discovery and plea-bargaining contexts, prosecutors must—at a minimum—comply with the applicable laws.162 In both contexts, however, the legal minimum could be seen as just that: a legal minimum. While the Constitution does not require that Brady material be turned over at any given time, prosecutors who seek the truth might consider taking a liberal understanding of their ethical mandate to disclose such information in a “timely” manner,163 even if it comes at the expense of conviction rates.164 By turning over exculpatory evidence sooner rather than later, prosecutors ensure that defendants can make pretrial decisions based on the fullness of the evidence—not on calculated guesses unrelated to their innocence or guilt. This includes a defendant’s decision to accept a plea bargain; and while plea bargains are not inherently flawed, observers note that they are often negotiated “outside the law’s shadow.”165 The private nature of plea bargains makes the prosecutor’s dignity-driven exercise of discretion all the more important when negotiating pleas.166 By giving defendants the evidence they need to make a fully informed plea decision, prosecutors affirm the “reasoning and moral capacities of human beings” which is a core feature of their human dignity that is “valuable and worthy of respect.”167 Prosecutors must resist the temptation to treat any defendant as a means to an increased conviction rate and must instead approach the appropriateness and prudence of a plea bargain on a case-by-case—i.e., person-by-person— basis. For those cases that do make it to trial, the prosecutor must, of course, continue to treat the defendant as a human person. This includes avoiding unnecessary and subtle practices that discourage the factfinder from doing so. For example, many prosecutors do not use the defendant’s name when arguing to the jury, referring to the defendant as simply “the defendant.” One simple way that prosecutors can treat the defendant as thou and promote the criminal justice system’s

162. See supra note 47 and accompanying text. 163. See AM. BAR ASS’N, supra note 66 (“Before trial of a criminal case, a prosecutor should make timely disclosure to the defense of [exculpatory] information . . . .”). 164. Cf. John 8:31-32 (NABRE) (“Jesus then said to those Jews who believed in him, ‘If you remain in my word, you will truly be my disciples, and you will know the truth, and the truth will set you free.’”). 165. William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 HARV. L. REV. 2548, 2558 (2004). 166. Cf. Jenia Turner, Transparency in Plea Bargaining, 96 NOTRE DAME L. REV. 973, 976-78 (2021) (arguing that transparency in the plea-bargaining context can be improved and that improvement is possible without adding significant costs to the criminal justice system). 167. Marah Stith McLeod, Communicating Punishment, 101 B.U. L. REV. (forthcom- ing 2021) (manuscript at 13), https://papers.ssrn.com/sol3/papers.cfm?abstract_id= 3543662. 294 CREIGHTON LAW REVIEW [Vol. 54 embrace of the personalist principle is simply to use the defendant’s name.168 If the underlying facts sufficiently prove the defendant’s guilt, then the prosecutor need not worry about letting a guilty person go free. Criminal punishment in fact respects the human dignity and free will inherent to all persons.169 If the State cannot punish those who rightfully deserve to be punished without first downplaying their dignity, then the State—which exists for man—does not deserve to administer punishment at all. Lastly, after a defendant has been convicted of a crime, prosecutors must recommend sentences that achieve the permissible goals of punishment. While prosecutors are often directed by statutory sentencing schemes when recommending punishments, they must use their discretion in this realm to uphold and promote the dignity of the offender.170 At a minimum, prosecutors must not let their just pursuit of State-imposed punishment slip into vengeance, in which offenders are too easily dehumanized when referred to as “monsters.”171 Seeking proportional sentences is also necessary, though proportionality is not itself sufficient.172 Chief among sentencing considerations must be the offender’s dignity.173 While the State has the legitimate power to adequately punish offenders, prosecutors must never lose sight that the reasons for punishment are themselves cognizant of promoting human dignity and the common good.174 And beyond that, effective communication of those reasons helps the State and society at

168. See Akhi Johnson, What’s in a Name? A Small Step Prosecutors Can Take to Build a More Humane System, VERA INST. OF JUST. (July 24, 2020), https:// www.vera.org/blog/whats-in-a-name-a-small-step-prosecutors-can-take-to-build-a- more-humane-system. 169. See supra notes 59-60 and accompanying text. 170. Cf. R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 106 (2001) (“[Punishment] is a burden imposed on an offender for his crime, through which, it is hoped, he will come to repent his crime, to begin to reform himself, and thus reconcile himself with those he has wronged.”). 171. See Dora W. Klein, The Dignity of the Human Person: Catholic Social Teaching and the Practice of Criminal Punishment, 60 LOY. L. REV. 1, 11 (2014). 172. As one commentator noted: The principle of proportionality can help us achieve criminal sentences that are relatively just, but achieving criminal sentences that are just in an absolute sense depends upon how we view people who commit crimes. The Catholic Church understands human beings as created by God, in God’s own image, and existing always in relation to God. Those who commit crimes should be punished, but their punishment should never deny their intrinsic humanity. Id. at 8. But see Falvey, supra note 51, at 163 (“When a criminal commits a voluntary evil, restoration of the order within his soul is achieved by inflicting upon him a proportionate evil contrary to his will.”). 173. Klein, supra note 171, at 8. 174. See supra notes 49-55 and accompanying text; see also EVANGELIUM VITAE, supra note 29, ¶ 56 (“[The State must] redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom.”). 2021] THE ROLE OF THE PROSECUTOR 295 large to recognize an offender’s humanity.175 As one scholar recently argued, “[b]y communicating the reasons for punishment, the state sends a normative message that the offender remains a human being with whom reasoned engagement is worthwhile.”176 While certain questions are beyond the scope of this Article—for example, the prudence of mandatory minimums177 and the morality of the death penalty178—prosecutors must face these and other sentencing questions mindful of the anthropological reality that humans have inviolable God-given dignity. Indeed, “the right conclusion about what to do with convicted murderers” isn’t going be accomplished “by dust- ing the usual arguments with God-talk.”179 Rather, an approach to sentencing—and really the whole criminal justice enterprise—that is in accordance with and actually furthers Catholic Social Teaching must instead “challeng[e] our culture to understand who and what these condemned persons are, and why it should make a difference.”180

CONCLUSION Prosecutors are uniquely situated to promote the common good. While their largely unchecked prosecutorial discretion can be abused,

175. See generally McCleod, supra note 167. 176. Id. at 23. 177. See Cassidy, supra note 159, at 267 (arguing that mandatory minimums are inconsistent with Catholic Social Teaching). 178. The Catholic position on the death penalty continues to be a source of debate among theologians and philosophers. In Evangelium Vitae, Pope John Paul II wrote: It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent. EVANGELIUM VITAE, supra note 33, ¶ 56. Under Pope Francis, the Catechism was updated to include the following language: “[T]he death penalty is inadmissible because it is an attack on the inviolability and dignity of the person, and she works with determination for its abolition worldwide.” New Revision of Number 2267 of the Catechism of the Catholic Church on the Death Penalty, VATICAN, http://www.vatican.va/ro- man_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20180801_catechismo- penadimorte_en.html (last visited Mar. 18, 2020). Some Catholic commentators, however, continue to maintain that capital punishment is not inherently evil and constitutes a just sentence in some cases. See, e.g., EDWARD FESER & JOSEPH M. BESSETTE, BY MAN SHALL HIS BLOOD BE SHED: A CATHOLIC DEFENSE OF CAPITAL PUNISHMENT (2017). For other commentary on Catholic Social Teaching and the death penalty from a legal perspective, see generally Cassidy, supra note 159; Falvey, supra note 51; Garnett, supra note 9; John H. Garvey & Amy Coney Barrett, Catholic Judges in Capital Cases, 81 MARQUETTE L. REV. 303 (2005); Klein, supra note 171; Robert J. Muise, Note, Profes- sional Responsibility for Catholic Lawyers: The Judgment of Conscience, 71 NOTRE DAME L. REV. 771, 794-95 (1996). 179. Garnett, supra note 9, at 545. 180. Id. 296 CREIGHTON LAW REVIEW [Vol. 54 prosecutors are called to use their positions of power to work for individual and societal flourishing. When prosecutors follow their well- informed consciences and make decisions that champion the dignity of the human person—that is, the dignity of the victim and the offender alike—prosecutorial work is not only consistent with the principles of Catholic Social Teaching, it furthers them. While prosecutors are agents of the State, they must never forget that prosecution is a vocation, a higher calling through which they can fulfill God’s will. The last words of one of the Church’s greatest civil servants, St. Thomas More, serve as a stark reminder of where the prosecutor’s priorities ought to lie: “I die the King’s good servant—but God’s first.”181

181. See PETER MARSHALL, HERETICS AND BELIEVERS: A HISTORY OF ENGLISH REFOR- MATION 224 (2017). 297

EXTRALEGAL INFLUENCES ON JUROR DECISION MAKING IN SUITS AGAINST FIREARM MANUFACTURERS

NATHAN D. HARP†

I. INTRODUCTION ...... 297 II. EXTRALEGAL INFLUENCES ON JUROR DECISION MAKING IN SUITS AGAINST GUN MANUFACTURERS FOR THE CRIMINAL MISUSE OF NON-DEFECTIVE FIREARMS ...... 300 A. JURORS’ PERCEPTION OF FIREARMS ...... 303 B. JURORS’ PERCEPTION OF FIREARM MANUFACTURERS ...... 306 1. Jury Verdicts Rendered Pre-PLCAA ...... 306 2. Jury Verdicts Rendered Post-PLCAA ...... 309 C. JURORS’ PERCEPTION OF CORPORATE DEFENDANTS GENERALLY ...... 311 D. THE IMPACT OF JUROR EMOTION ...... 314 E. JURORS’ RESPONSES TO OTHER CIVIL SUITS ARISING OUT OF MASS SHOOTINGS ...... 316 F. POLITICAL POLARIZATION AND JUROR DECISION MAKING ...... 317 III. SYNTHESIS ...... 319 IV. CONCLUSION ...... 321

I. INTRODUCTION On December 14, 2012, twenty-year-old Adam Lanza entered the Sandy Hook Elementary School in Newtown, Connecticut, and gunned down twenty young children and six adults.1 Lanza was armed with

† J.D. Candidate, Cornell Law School, 2021. I expressly disclaim any view as to the wisdom or desirability of suing gun manufacturers for harm directly caused by third parties’ criminal acts. Thanks to Professor Valerie P. Hans for her learned guidance and for opening my eyes to the realities of the jury system. I would also like to thank the various associates and editors of the Creighton Law Review for their diligence, thor- oughness, and responsiveness in editing this Article. Last but not least, my very special thanks to Jennifer Yu, Jim and Eleanor Bartlett, and Lydia and Amelia Harp. 1. Sandy Hook Shooting: What Happened?, CNN (Dec. 2012), https:// www.cnn.com/interactive/2012/12/us/sandy-hook-timeline/index.html; Steve Vogel et. al., Sandy Hook Elementary shooting leaves 28 dead, law enforcement sources say, WASH. POST (Dec. 14, 2012), https://www.washingtonpost.com/politics/sandy-hook-elementary-school-shooting-leaves-students-staff-dead/2012/12/14/24334570-461e-11e2- 8e70-e1993528222d_story.html. Additionally, Lanza killed both himself and his mother. Id. 298 CREIGHTON LAW REVIEW [Vol. 54 three guns during the massacre, including an AR-15 assault rifle man- ufactured by Bushmaster Firearms.2 Lanza’s horrific act of violence left the entire nation reeling.3 President Obama, addressing the nation on the night of the shooting, remarked: As a country, we have been through this too many times. Whether it’s an elementary school in Newtown, or a shopping mall in Oregon, or a temple in Wisconsin, or a movie theater in Aurora, or a street corner in Chicago—these neighborhoods are our neighborhoods, and these children are our children. And we’re going to have to come together and take meaningful action to prevent more tragedies like this, regardless of the politics.4 The victims and families of the Sandy Hook shooting agreed. In 2014, a surviving Sandy Hook teacher and the parents of nine slain children filed suit against Bushmaster, seeking to hold the firearm manufacturer liable for Lanza’s criminal actions.5 But recovery would not come easily for the Sandy Hook victims. Congress had placed a seemingly insurmountable obstacle in the victims’ way: the 2005 Protection of Lawful Commerce in Arms Act (“PL- CAA”).6 The PLCAA—which passed into law at the behest of the NRA and the fat-walleted U.S. gun lobby7—immunizes firearm manufacturers from gun-violence victims’ lawsuits, subject to certain exceptions.8 A Connecticut judge invoked the powerful protections offered to gun manufacturers by the provisions of the PLCAA when she dismissed the victims’ suit against Bushmaster.9

2. Sandy Hook Shooting: What Happened?, supra note 1. 3. See James Barron, Nation Reels After Gunman Massacres 20 Children at School in Connecticut, N.Y. TIMES (Dec. 14, 2012), https://www.nytimes.com/2012/12/15/ nyregion/shooting-reported-at-connecticut-elementary-school.html (“The shootings set off a tide of anguish nationwide. In Illinois and Georgia, flags were lowered to half-staff in memory of the victims. And at the White House, President Obama struggled to read a statement in the White House briefing room. More than once, he dabbed his eyes.”). 4. Megan Slack, President Obama Speaks on the Shooting in Connecticut, WHITE HOUSE (Dec. 14, 2012, 3:34 PM), https://obamawhitehouse.archives.gov/blog/2012/12/14/ president-obama-speaks-shooting-connecticut. 5. Aaron Smith, 10 Sandy Hook families sue Bushmaster, CNN BUS. (Dec. 16, 2014, 12:01 PM), https://money.cnn.com/2014/12/15/news/companies/sandy-hook-bush master-newtown-lawsuit/. 6. Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-7903 (2012). 7. Jim Dwyer, A Law That Keeps Gun Makers Smiling, N.Y. TIMES (May 28, 2013), https://www.nytimes.com/2013/05/29/nyregion/a-law-that-keeps-gun-makers- smiling.html. 8. See 15 U.S.C. §§ 7901-7903. 9. Deborah Feyerick & Chris Welch, Sandy Hook: Judge dismisses families’ lawsuit against gunmaker, CNN, https://www.cnn.com/2016/10/14/health/sandy-hook-lawsuit-gun-maker/index.html (last updated Oct. 14, 2016, 9:49 PM). 2021] EXTRALEGAL INFLUENCES ON JURIES 299

Determined to prevail, the Sandy Hook victims appealed the dismissal.10 Their efforts were ultimately rewarded. The Connecticut Supreme Court ruled that the suit against Bushmaster should proceed to trial, holding that the Sandy Hook victims’ claims fell under the PLCAA’s “predicate exception.”11 The predicate exception allows for suits against gun manufacturers when the manufacturer has violated some predicate statute applicable to the sale or marketing of firearms, and that violation was a proximate cause of the plaintiff’s harm.12 Here, the predicate statute invoked was a provision on general unfair trade practices contained in the Connecticut Unfair Trade Practices Act (“CUTPA”).13 The Sandy Hook plaintiffs alleged that Bushmaster violated CUTPA through its negligence in marketing the XM15-E2S semiautomatic rifle, and that Bushmaster’s negligent marketing was a proximate cause of the Sandy Hook massacre.14 As the Connecticut Supreme Court wrote in its opinion: Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct, and given that statutes such as CUTPA are the only means available to address those types of wrongs, it falls to a jury to decide whether the promo- tional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet.15 Recently, the United States Supreme Court denied Remington (which now owns Bushmaster Firearms) certiorari.16 If events proceed as scheduled at the time of this writing, the Sandy Hook victims will finally get the chance to present their case against Bushmaster to a jury of Connecticuters in September 2021.17 Of course, this raises

10. Rick Rojas & Kristin Hussey, Sandy Hook Massacre: Remington and Other Gun Companies Lose Major Ruling Over Liability, N.Y. TIMES (Mar. 14, 2019), https:// www.nytimes.com/2019/03/14/nyregion/sandy-hook-supreme-court.html. 11. Soto v. Bushmaster Firearms Int’l, LLC, 202 A.3d 262, 324-25 (Conn. 2019); see also Rojas & Hussey, supra note 10. 12. 15 U.S.C. § 7903(5)(A)(iii) (2012). 13. Soto, 202 A.3d at 285. 14. Id. at 274. 15. Id. at 324. 16. Robert Storace & Raychel Lean, The Big Gun Rights Case SCOTUS Never Took: No Appeal for Remington Over Sandy Hook, LAW.COM (Nov. 12, 2019, 10:00 AM), https://www.law.com/ctlawtribune/2019/11/12/the-biggest-gun-rights-case-scotus-never- took-no-appeal-for-remington-over-sandy-hook/?slreturn=20200002131744. 17. Anthony Lin, Sandy Hook Families Get Gunmaker Trial 9 Years After Attack, BLOOMBERG LAW (Dec. 11, 2019, 5:40 PM), https://news.bloomberglaw.com/us-law-week/ sandy-hook-families-to-get-gunmaker-trial-9-years-after-attack. But between Reming- ton’s ongoing bankruptcy proceedings and court delays caused by the COVID-19 pandemic, a 2021 trial seems far from certain. See Robert Storace, Connecticut Delays Jury Trials While Some Attorneys Question Process, LAW.COM (Nov. 2, 2020, 5:26 PM) https:// www.law.com/ctlawtribune/2020/11/02/connecticut-delays-jury-trials-while-some-attor- 300 CREIGHTON LAW REVIEW [Vol. 54 some interesting questions regarding the trial’s potential jury. A trial of this nature—in which a firearm manufacturer is sued based on the criminal actions of a third party wielding the manufacturer’s non-defective products—lies at a relatively unexplored intersection of many different strands of existing jury research. So, how have juries decided similar cases in the past? What extralegal factors may threaten to influence the jury’s decision?

II. EXTRALEGAL INFLUENCES ON JUROR DECISION MAKING IN SUITS AGAINST GUN MANUFACTURERS FOR THE CRIMINAL MISUSE OF NON-DEFECTIVE FIREARMS Suits against gun manufacturers invite a veritable cacophony of competing extralegal jury influences. In an effort to make sense of the chaos, this Article will examine a number of relevant considerations. First, this Article will examine jurors’ perceptions of firearms generally.18 Existing research on self-defense shooting cases may shed some light on this topic.19 When a criminal defendant has used a gun to kill or injure somebody, juries are less amenable to the defendant’s self-defense claim if the firearm used by the defendant is larger, deadlier, or more “sinister” looking.20 Could this principle apply similarly to negligent marketing actions against gun manufacturers? Could jurors be more likely to reach a verdict of negligent marketing based on the appearance of the marketed gun in question? Second, this Article will explore jurors’ perceptions of gun manufacturers.21 Looking to past examples of jury verdicts in suits against gun manufacturers and sellers (both pre- and post-PLCAA), we can attempt to divine some understanding of juries’ willingness to impose liability on manufacturers.22 Pre-PLCAA lawsuits often bore a striking resemblance to the Sandy Hook case, and in fact, many juries issued verdicts holding gun manufacturers liable for harm caused by the criminal misuse of their products.23 However, these jury verdicts were usually set aside by appellate courts.24 For obvious reasons, jury

neys-question-process/; see also Robert Storace, Remington’s 2nd Bankruptcy Filing Could Nix Sandy Hook Families’ Day in Court, LAW.COM (July 29, 2020, 2:37 PM) https:/ /www.law.com/ctlawtribune/2020/07/29/remingtons-2nd-bankruptcy-filing-could-nix- sandy-hook-families-day-in-court/. 18. See infra Part II(A). 19. See Glenn Meyer, Will It Hurt Me In Court? Weapons Issues and the Fears of the Legally Armed Citizen, JURY EXPERT (Sept. 1, 2009), http://www.thejuryexpert.com/ wp-content/uploads/MeyerTJESep2009Volume21No5.pdf. 20. Id. 21. See infra Part II(B). 22. See infra Part II(B)(1)-(2). 23. See e.g., Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21, 26 (2d Cir. 2001). 24. See e.g., Hamilton, 264 F.3d at 28; TIMOTHY D. LYTTON, SUING THE GUN INDUS- TRY 226 (Timothy D. Lytton, ed., 2005). 2021] EXTRALEGAL INFLUENCES ON JURIES 301 verdicts in such cases against gun manufacturers have become extremely rare as a result of the PLCAA’s passage.25 But we still may be able to glean some insights from recent jury verdicts against gun sellers.26 Third, this Article will consider jurors’ perceptions of corporate defendants generally—both in determining liability and in apportion- ing damage awards.27 As to liability, scholars have posited the existence of juror biases both for and against corporate defendants.28 While some maintain that jurors tend to regard businesses in a more positive light, others argue that jurors treat corporate defendants harshly in cases with individual plaintiffs.29 Additionally, there exists research suggesting that jurors often hold corporations to a higher standard of reasonability than individuals in tort cases.30 Finally, the deep-pockets hypothesis suggests that juries often award greater damage awards when the defendant is a corporation than when the defendant is an individual.31 A number of studies conducted since the 1950s have seemed to confirm suspicions that a defendant’s deep pockets play a role in the jury’s decision making, but more recent research has shed some doubt on that conventional view.32 Fourth, this Article will consider the potential influence of jurors’ emotions.33 Most lawsuits akin to the Sandy Hook case will be predicated on heartbreaking, gut-wrenching facts. But even amidst the United States’ laundry list of mass shootings,34 the Sandy Hook mas-

25. See generally Gun Industry Immunity, GIFFORDS LAW CTR., https://giffords.org/ lawcenter/gun-laws/policy-areas/other-laws-policies/gun-industry-immunity/ (last visited Oct. 31, 2020). 26. See Andrew Cohen, In Alaska, a Showdown of Lawyers, Guns, and Bush-Era Firearms Law, ATLANTIC (Mar. 5, 2012), https://www.theatlantic.com/national/archive/ 2012/03/in-alaska-a-showdown-of-lawyers-guns-and-bush-era-firearms-law/253941/ (describing a case where the PLCAA did not bar the plaintiffs’ suit because the defendant sold a gun to an irresponsible person); Yanan Wang, Landmark jury verdict orders gun shop to pay nearly $6 million to injured police officers, WASH. POST (Oct. 14, 2015, 6:23 AM), https://www.washingtonpost.com/news/morning-mix/wp/2015/10/14/an-unprecedented-jury-verdict-orders-gun-shop-to-pay-nearly-6-million-to-injured-police-officers/ (discussing jury verdicts of nearly six million dollars awarded to injured police officers). 27. See infra Part II(C). 28. Valerie P. Hans, The Jury’s Response to Business and Corporate Wrongdoing, 52 LAW & CONTEMP. PROBS. 177, 177 (1989); Sarah Thimsen et. al., Putting a Face on the Corporate Defendant, JURY EXPERT (July 26, 2011), http://www.thejuryexpert.com/ 2011/07/putting-a-face-on-the-corporate-defendant/. 29. Hans, supra note 28, at 177. 30. VALERIE P. HANS, BUSINESS ON TRIAL: THE CIVIL JURY AND CORPORATE RESPON- SIBILITY 136 (2000). 31. Id. at 178-79. 32. Id. at 178-79, 212-14. 33. See infra Part II(D). 34. See Mass Shootings in the US Fast Facts, CNN LIBRARY, https://www.cnn.com/ 2019/08/19/us/mass-shootings-fast-facts/index.html (last visited Nov. 1, 2019). An in- 302 CREIGHTON LAW REVIEW [Vol. 54 sacre stands out as particularly horrific. The twenty-seven total victims included twenty children between the ages of six and seven.35 Could Sandy Hook jurors be more likely to find the defendant liable because the bulk of Lanza’s victims were defenseless young children? It is difficult to imagine a more sympathetic class of victims, and jurors’ strong emotional reaction could indirectly influence their decision making.36 Further, jurors will almost certainly be influenced by the gruesome nature of the evidence37 and by utterly unavoidable pretrial publicity.38 Fifth—as a useful point of reference—this Article will examine juror responses to premises liability suits that sprang out of mass shootings.39 Juries have returned mixed verdicts on these premises liability claims,40 and if certain rumors are to be believed, three separate mock juries all found the hotel-defendant liable for harm caused in the 2017 Las Vegas massacre, in which fifty-eight people were killed at a country music festival when a lone gunman opened fire from a hotel window.41 And sixth, this Article will consider the influence of politics and culture on juror outlook toward guns, shootings, and manufacturer li-

exhaustive list of notable recent mass shootings would include: Las Vegas (58 killed), Orlando (49 killed), Virginia Tech (32 killed), Sandy Hook (26 killed), Sutherland Springs (25 killed), El Paso (22 killed), Parkland (17 killed), Fort Hood (13 killed), Bing- hamton (13 killed), Virginia Beach (12 killed), Thousand Oaks (12 killed), Aurora (12 killed), Pittsburgh (11 killed), Santa Fe (10 killed), and of course, Columbine (13 killed). Id. And while the death tolls are stunning, mass shooters often injure more people than they kill. See, e.g., id. (noting that the Las Vegas shooter killed 58 people, but injured almost 700). 35. Michal Kranz & Rebecca Harrington, It’s been 6 years since the Sandy Hook shooting. Here are the names and pictures of the 27 victims, including 20 children, who were murdered that day, BUS. INSIDER (Dec. 14, 2018, 7:35 AM), https:// www.businessinsider.com/who-were-the-victims-of-the-sandy-hook-shooting-2017-12. 36.BRIAN H. BORNSTEIN & EDIE GREENE, THE JURY UNDER FIRE: MYTH, CONTRO- VERSY, AND REFORM 246 (2017). 37. Id. at 254-57. 38. Id. at 258. 39. See infra Part II(E). 40. See David G. Savage, Court rules Virginia Tech not liable for failed shooting warnings, L.A. TIMES (Oct. 31, 2013, 12:00 AM), https://www.latimes.com/nation/la- xpm-2013-oct-31-la-na-nn-virginia-tech-shooting-court-warnings-20131031-story.html; John Ingold, Cinemark not liable for Aurora theater shooting, civil jury says, DENVER POST (May 19, 2016, 5:08 AM), https://www.denverpost.com/2016/05/19/cinemark-not- liable-for-aurora-theater-shooting-civil-jury-says/; Christina Marinakis & Bliss Piverger, Active Shooter Premises Liability: What Are Jurors’ Expectations of Safety?, LITIG. INSIGHTS (Apr. 6, 2018), https://www.litigationinsights.com/active-shooter-premises-liability-jurors-safety/. 41. Doug Poppa, Mock juries rule against MGM Resorts International Las Vegas in concert massacre, source says, BALTIMORE POST-EXAMINER (Jan. 9, 2019), https://bal- timorepostexaminer.com/mock-juries-rule-against-mgm-resorts-international-las- vegas-in-concert-massacre-source-says/2019/01/09. 2021] EXTRALEGAL INFLUENCES ON JURIES 303 ability.42 Political views tend to be predictive of a person’s feelings about firearms—for instance, those on the right tend to prioritize gun ownership rights over gun violence prevention, while those on the left would rather take steps toward ending gun violence than defend the right to bear arms.43 Indeed, multiple mainstream candidates in the 2020 Democratic Presidential Primaries criticized the PLCAA, even advocating repeal of the statute as part of their gun policy plat- forms.44 Yet, polling data suggests that the considerable majority of Americans support the PLCAA and oppose lawsuits like the Sandy Hook case.45

A. JURORS’ PERCEPTION OF FIREARMS

Could the Sandy Hook jury’s verdict be influenced by the characteristics or specifications of the Bushmaster XM15-E2S AR-15 that Lanza wielded during his rampage? Would juries in general be likelier to hold a gun manufacturer liable for mass shootings where the firearm used was, say, bigger or deadlier? Perhaps. Empirical evidence suggests that certain types of firearms are more likely to

42. See infra Part II(F). 43. Kathy Frankovic, Wide Divide Between Parties On Gun Politics, YOUGOV (Dec. 14, 2015, 9:59 AM), https://today.yougov.com/topics/politics/articles-reports/2015/12/14/ wide-divide-between-parties-gun-politics. 44. See John Wagner et. al, Democrats jockey for advantage after spirited debate in Nevada, WASH. POST (Feb 22, 2020, 5:35 PM), https://www.washingtonpost.com/politics/ 2020/02/19/democratic-debate/ (showing Bernie Sanders supporting the idea of repealing the PLCAA); Neil Vigdor, Bernie Sanders, Confronted on Immunity for Gun Manu- facturers, Says That Was a ‘Bad Vote’, N.Y. TIMES (Feb. 25, 2020), https:// www.nytimes.com/2020/02/25/us/politics/bernie-sanders-brady-bill-guns.html (discussing Biden’s confrontation of Sanders for his vote in 2005 in support of the PLCAA); Ginger Gibson & John Whitesides, Factbox: Democratic presidential candidates back gun restrictions after mass shootings, REUTERS (Sept. 10, 2019, 12:39 PM), https:// www.reuters.com/article/us-usa-election-guns-factbox/factbox-democratic-presidential- candidates-back-gun-restrictions-after-mass-shootings-idUSKCN1VV2BY (describing Elizabeth Warren’s support for repealing the PLCAA). 45. Voters Do Not Support Lawsuits Against Firearms Manufacturers, Retailers for Gun Crime, Poll Finds, NAT’L SHOOTING SPORTS FOUND. (Apr. 25, 2016), https:// www.nssf.org/voters-do-not-support-lawsuits-against-firearms-manufacturers-retailers-for-gun-crime-poll-finds/. Of course, it goes without saying that a poll concerning popular support for the gun industry’s statutory tort immunity conducted by the Na- tional Shooting Sports Foundation should be taken with a hearty grain of salt. When interest groups commission pollsters to ask leading questions to gather “scientific” proof that the public agrees with whatever demand they are making on government, they demean polling and mislead the public. . . . [M]ost citizens are not continuously engaged in public affairs. Certain obscure questions of public policy, while important, will never engage a mass public. Polling that does not deal with these basic facts of democratic life is producing something other than real information. E.J. Dionne, Jr. & Thomas E. Mann, Polling & Public Opinion: The good, the bad, and the ugly, BROOKINGS INST. (June 1, 2003), https://www.brookings.edu/articles/polling- public-opinion-the-good-the-bad-and-the-ugly/. 304 CREIGHTON LAW REVIEW [Vol. 54

“prim[e] negative attributions to a [criminal] defendant.”46 This “negative attribution” phenomenon could well extend to gun manufacturer defendants in the civil context. Existing research on this question, though, focuses on the criminal context. In one study, researchers ran several mock jury experi- ments in which they asked juries to return verdicts and sentences for criminal defendants claiming self-defense.47 The researchers ran multiple different scenarios in which the defendant had used six different types of firearms, including handguns, pump-action shotguns, a wood-stock rifle, and an AR-15 rifle.48 After running these jury simu- lations, the researchers concluded that there was “some indication that the AR-15 usage was detrimental to a defendant’s chances of ac- quittal.”49 Additionally, “the average recommended sentence when the [defendant] used the AR-15 weapon was . . . significantly higher than any of the other gun types.”50 Importantly, mock juries produced these results despite the fact that the wood-stock rifle and the AR-15 rifle were of the same caliber, had the same capacity, and were both semi-automatic.51 And as an interesting side note, the study found that female jurors were both more likely to find the defendant guilty and to impose a longer sentence.52 What could explain these findings? The researchers who conducted the aforementioned mock jury studies suggested that the AR- 15’s sinister appearance53 and military ancestry could explain why jurors see the rifle as a “bad gun.”54 In contrast, the wood-stock rifle

46. Meyer, supra note 19. 47. Id. 48. Id. 49. Id. 50. Meyer, supra note 19. 51. Id. (providing a graphic that identifies the Ruger Mini-14 as a .223 caliber semi-automatic with a capacity between five and 30 rounds and the AR-15 as a .223 caliber semi-automatic with a capacity of between five and 30 rounds). 52. Id. 53. It also bears noting that jurors may look unfavorably on accessorized or cus- tomized guns. Some gun owners etch aggressive-sounding slogans into their weapons, including phrases like “You’re F***ed” or “molon labe” (Greek for “come and take them,” a popular slogan adopted by some gun owners and gun-rights enthusiasts). Massad Ayoob, How Gun Decorations Can Send the Wrong Message to a Jury, PERS. DEF. WORLD (Apr. 27, 2018) https://www.personaldefenseworld.com/2018/04/ayoob-gun-decorations- jury/. Other gun owners may affix logos such as the “Punisher Skull,” based on a popular comic-book vigilante. Id. One frequently-called expert witness in shooting cases has said that in every case he has participated in, “the opposing side tried to somehow make the shooter’s gun a witness against him.” Id. 54. See Meyer, supra note 19 (“Bad guns are designed explicitly for inflicting pain and death on others. AR-15s are commonly called assault rifles due to their military ancestry.”). 2021] EXTRALEGAL INFLUENCES ON JURIES 305

(despite performance comparable to that of the AR-15) has a “sport- ing” appearance.55 The lead researcher said: I wanted to do guns that I thought might be “nice” versus “evil.” So the assault rifle is “evil” and the [wood-stock rifle] is “nice.” The [wood-stock] rifle skirted around the assault rifle debate by being a wood-stocked gun. Grandpa had a wood gun, so that’s a “nice” gun...... The “evil” guns look more like police or military deriv- atives. You see soldiers with the AR; you see police with it.56 Indeed, even many hunters, who might be inclined to be gun enthusiasts, hold reservations about assault-style weapons as compared to guns designed for hunting and target-shooting.57 It is not difficult to imagine that jurors’ perceptions of gun-manufacturer defendants in civil suits could similarly vary with the shooter’s choice of weapon. Not only is the AR-15’s appearance widely considered to be frightening, but the AR-15 as a style of rifle has suffered some serious reputational damage in recent years. AR-15 rifles were used to carry out the Aurora movie theater shooting, the San Bernardino shooting, the Pulse Nightclub massacre in Orlando, the Las Vegas country music festival shooting, the Sutherland Springs church shooting, the Parkland High School shooting, and of course, the Sandy Hook shooting.58 As a result, calls for the banning of assault rifles have proliferated.59 Assault weapons were even federally banned between 1994 and 2004.60 It may well be that jurors feel that assault weapons should not be available for sale to the general public, and such views would seem to predispose jurors towards seeing the

55. Id. 56. Gila Hayes, Gun Choices and Juries: An Interview with Glenn Meyer, PhD, ARMED CITIZENS LEGAL DEF. NETWORK (Oct. 2012), https://armedcitizensnetwork.org/ images/stories/Network_2012-10.pdf. 57. Meyer, supra note 19. 58. William Cummings & Bart Jansen, Why the AR-15 keeps appearing at America’s deadliest mass shootings, USA TODAY, https://www.usatoday.com/story/news/ nation/2018/02/14/ar-15-mass-shootings/339519002/ (last updated Feb. 14, 2018, 6:59 PM). 59. Anna Bernoulli, I’m An Army Vet Who Once Thought An AR-15 Was No Big Deal. Now, I Want It Banned., REFINERY29, (Feb. 27, 2019, 9:00 AM) https:// www.refinery29.com/en-us/2018/02/191804/army-veteran-ar-15-ban-florida-shooting; Eugene Robinson, Assault weapons must be banned in America, WASH. POST (June 13, 2016), https://www.washingtonpost.com/opinions/assault-weapons-must-be-banned/ 2016/06/13/0d6a58f4-3195-11e6-8ff7-7b6c1998b7a0_story.html; Ali Watkins et. al., Once Banned, Now Loved and Loathed: How the AR-15 Became ‘America’s Rifle’, N.Y. TIMES (Mar. 3, 2018), https://www.nytimes.com/2018/03/03/us/politics/ar-15-americas- rifle.html. 60. Watkins et. al., supra note 59. 306 CREIGHTON LAW REVIEW [Vol. 54 marketing of assault weapons as somehow negligent. Thus, juries may be more likely to reach verdicts holding gun manufacturers liable for mass shootings when the weapon used was an assault rifle such as an AR-15, or some other notorious type of firearm, as opposed to, say, a handgun.

B. JURORS’ PERCEPTION OF FIREARM MANUFACTURERS

In order to glean some insights about juror perception of firearm manufacturers, this subpart looks to past examples of jury verdicts in civil cases against both firearm manufacturers and sellers. The analysis is bifurcated between verdicts issued prior to the passage of the PLCAA and after the passage of the PLCAA. Of particular interest will be the verdicts rendered before the PLCAA passed into law, as many of those cases were predicated upon legal theories similar to the theory advanced in the upcoming Sandy Hook case. Verdicts rendered post-PLCAA may still be valuable, though, as they are timelier.

1. Jury Verdicts Rendered Pre-PLCAA

In the late 1990s and early 2000s, municipalities and victims of gun violence began suing gun manufacturers for injuries caused by a criminal’s use of a properly-functioning firearm.61 Like the modern Sandy Hook case, these cases were typically predicated on the theory that a victim’s harm could have been prevented had the manufacturer adopted stricter marketing or sales practices.62 Jury verdicts (or threat thereof) did achieve some victories during this period. A jury’s verdict induced Colt to discontinue production of several guns.63 Ongoing gun litigation convinced Smith & Wesson to alter design, marketing, research, and distribution practices.64 Fear of a jury trial pushed Davis Industries—a notorious firearm manufacturer—to file for bankruptcy.65 Davis Industries believed that Fed-

61. LYTTON, supra note 24, at 5. 62. Id. 63. Id. at 226; Mike Allen, Colt’s to Curtail Sale of Handguns, N.Y. TIMES (Oct. 11, 1999), https://www.nytimes.com/1999/10/11/nyregion/colt-s-to-curtail-sale-of-handguns.html. “In February, in what legal experts considered a test case for lawsuits being filed across the country, a Federal District Court jury in Brooklyn found that the marketing practices of nine gun manufacturers, including Colt’s, made them liable for shootings with illegally obtained handguns.” Id. That Brooklyn jury’s verdict, of course, was the same verdict which was the subject of Hamilton v. Accu-Tek (or Hamil- ton v. Beretta). Id. 64. LYTTON, supra note 24, at 226. 65. Fox Butterfield, Lawsuits Lead Gun Maker To File for Bankruptcy, N.Y. TIMES (June 24, 1999), https://www.nytimes.com/1999/06/24/us/lawsuits-lead-gun-maker-to- file-for-bankruptcy.html. 2021] EXTRALEGAL INFLUENCES ON JURIES 307 eral Bankruptcy Judges were “more likely than urban juries in state courts to act favorably to . . . gun companies.”66 The first negligent marketing case to reach a jury was Halber- stam v. Daniel.67 In Halberstam, a Hasidic Jewish teenager was killed by a Palestinian wielding two automatic pistols constructed from “mail-order assembly kits” sold by the manufacturer-defendant.68 Remarkably, the famous Judge Jack Weinstein of the Eastern District of New York allowed the case to proceed to trial in 1998.69 The jury deliberated for six hours before returning special verdicts in favor of the defendant manufacturer.70 The Halberstam jury’s conclusions highlight the difficulty of proving causation in these suits against gun manufacturers. Despite finding that the defendant’s gun71 caused the plaintiff’s death, and that the defendant manufacturer was negligent in its sale and marketing of gun kits, the jury’s answer to the question, “Did the defendants’ negligence cause . . . Halberstam’s death?” was ultimately, “No.”72 What could account for this series of special verdicts? Several jurors expressed a belief that had [the attacker] not obtained a weapon made from the defendants’ parts, he would easily have obtained another and carried out the attack. A number of jurors stated their belief that [the] attack, not the [defendants’] marketing, really caused the death of . . . Halberstam. That is, the defendants’ marketing was neither a but-for cause nor a substantial factor in bringing about the plaintiffs’ harm.73 Thus, it appears that the Halberstam jury was willing to acknowledge the defendant manufacturer’s negligence, but unwilling to reach bold, aggressive conclusions about the results of defendant’s negligence. But the following year, gun manufacturers found themselves

66. Id. 67. See LYTTON, supra note 24, at 13; Timothy D. Lytton, Halberstam v. Daniel and the Uncertain Future of Negligent Marketing Claims Against Firearms Manufacturers, 64 BROOKLYN L. REV. 681, 681-82 (1998) [hereinafter Lytton, Halberstam v. Daniel]; see also Halberstam v. S.W. Daniel, Inc., No. 95 Civ. 3323 (E.D.N.Y. 1998) (pleadings and court orders on file in clerk’s office at the U.S. District Court for the Eastern District of New York). 68. Lytton, Halberstam v. Daniel, supra note 67, at 681-82. These mail-order assembly kits are sometimes known simply as “gun kits.” See, e.g., James Gherardi, Gun kits allow buyers to purchase weapon without background check, NEWS 5 CLEVELAND (Mar. 2, 2017), https://www.news5cleveland.com/news/e-team/gun-kits-allow-buyers-to- purchase-weapon-without-background-check (providing an example of a news source referring to “gun kits”). 69. Lytton, Halberstram v. Daniel, supra note 67, at 697. 70. Id. 71. Id. Rather, the gun built using defendant’s gun kit. Id. 72. Lytton, Halberstam v. Daniel, supra note 67, at 697-98. 73. Id. at 698. 308 CREIGHTON LAW REVIEW [Vol. 54 on trial yet again—and once more in Judge Weinstein’s courtroom, no less.74 This was the case of Hamilton v. Accu-Tek,75 the most important of the pre-PLCAA jury verdicts.76 Hamilton was another negligent marketing case.77 Here, the jurors struggled greatly during deliberations.78 The jury began dead- locked (though in agreement that expert statistics were irrelevant).79 Jurors yelled, argued, and pointed their fingers at each other.80 The jury debated the gun industry’s role in violence, squabbled over violent urban crime, and questioned whether a verdict for the plaintiffs would open the floodgates for similar litigation.81 Jurors became in- credibly upset; some became physically ill.82 Eventually, the jury settled on a compromise verdict described by some as “incomprehensible” (indeed, the verdict was vacated upon appeal to the Second Circuit).83 Out of twenty-five gun-manufacturer defendants, the jury found that fifteen were negligent, but only three were liable.84 Even as both sides declared victory, the defendants’ lawyers began accusing the jury of unfair compromise.85 Judge Weinstein was totally unbothered by the compromise verdict, punning horrifically that jurors constantly compromise “[a]s a practical matter of jury’s prudence.”86 The struggles of the Hamilton jury highlight some unique problems with these cases against gun manufacturers. In particular, the Hamilton deliberations magnified the cultural conflicts underlying the gun debate.87 “Cultural polarization, within and across juries,

74. LYTTON, supra note 24, at 13. 75. 62 F. Supp. 2d 802 (E.D.N.Y. 1999). 76. See Hamilton v. Accu-tek, 62 F. Supp. 2d 802, 810 (E.D.N.Y. 1999); see also Daniel P. Rosner, In Guns We Entrust: Targeting Negligent Firearms Distribution, 11 DREXEL L. REV. 421, 432-33 (2018) (“The most noteworthy plaintiff-friendly decision in gun litigation came out of the Eastern District of New York: Senior District Judge Jack Weinstein’s groundbreaking opinion in Hamilton v. Accu-Tek. Although subsequently reversed on appeal, the Hamilton decision changed the landscape of gun litigation by scrutinizing firearms distribution practices and compelling gun dealers and manufacturers to reconsider their business practices, even if only for a short while.”). 77. Hamilton, 62 F. Supp. at 810. 78. See LYTTON, supra note 24, at 123. 79. Id. 80. Id. 81. Id. 82. Id. During deliberations, the jury sent the following note to Judge Weinstein: “We are very upset. We are starting to fight!! We cannot reach a decision. We are emotionally drained, and some of us feel physically ill. Please, please give us more direction!” Robert Kolker, High Caliber Justice, NEW YORK (Apr. 5, 1999), https:// nymag.com/nymetro/news/crimelaw/features/893/. 83.LYTTON, supra note 24, at 123; Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21, 75 (2nd Cir. 2001). 84. Kolker, supra note 82. 85. Id. 86. Id. 87. LYTTON, supra note 24, at 122; see generally Frankovic, supra note 43. 2021] EXTRALEGAL INFLUENCES ON JURIES 309 will be the order of the day.”88 This point is particularly salient as regards one juror who seemingly refused to find manufacturers liable for fear of spawning copycat litigation.89 Plaintiff’s attorney accused that juror of having “an agenda of his own.”90 Judge Weinstein wouldn’t even interview the juror.91 Hence, the compromise verdict. Perhaps the intense cultural polarization inherent in such a lawsuit tends to disproportionately produce compromise verdicts and hung juries.

2. Jury Verdicts Rendered Post-PLCAA Lawsuits after the PLCAA’s passage have tended to be based on very different legal theories than the pre-PLCAA suits. As such, jury verdicts rendered in post-PLCAA suits may be somewhat less illuminating for our purposes. However, they may reflect a more recent snapshot of cultural attitudes around guns in the United States. Ad- ditionally, the verdicts examined in this subpart were rendered in suits against gun sellers, not gun manufacturers. Despite these short- comings, we will attempt to glean what wisdom we can from these timelier verdicts. First is Estate of Kim ex rel. v. Coxe,92 where the plaintiffs alleged that the defendant negligently sold a rifle to a “homicidal methamphetamine-abusing fugitive” who had been exhibiting “bizarre behavior.”93 The purchaser used that rifle two days later to murder the victim, Kim.94 Because this lawsuit was predicated on the defendant’s sale to an irresponsible person, it was not barred by the PL- CAA.95 In theory, because this gun seller had a business relationship with the shooter, this case would seem more amenable to a verdict of liability. However, the Alaska jury concluded that the gun seller was not liable for Kim’s murder.96 Instead, the jury assessed ten million dollars in total damages against the gun’s purchaser, who had since been convicted of Kim’s murder.97 Kim v. Coxe thus gives us an example of a case where a jury was clearly sympathetic to the victim and the victim’s family, but refused to impose liability on the defendant, even when the defendant had allegedly supplied the killer with the

88.LYTTON, supra note 24, at 123. 89. Kolker, supra note 82. 90. Id. 91. Id. 92. 295 P.3d 380 (Alaska 2013). 93. Cohen, supra note 26. 94. Id. 95. Id. 96. Matt Miller, Slideshow: Kim Estate v. Ray Coxe, KTOO (June 23, 2015), https:// www.ktoo.org/2015/06/23/slideshow-kim-estate-v-ray-coxe/. 97. Id. 310 CREIGHTON LAW REVIEW [Vol. 54 murder weapon. Could cultural or geographic factors partially explain this verdict? Alaska has the highest rate of private gun ownership in the nation, with sixty-one percent of the populace armed.98 Additionally, the owner of the defendant gun store was an older white male, whereas the victim was a young man of Korean ancestry.99 In Alaska, Whites comprise nearly sixty-five percent of the population, whereas just over six percent are Asian.100 Perhaps a mostly-White jury held implicit biases in favor of the respectable White business owner or against the young Asian laborer.101 Second is the Badger Guns case, in which a jury found a gun store liable to police officers who were injured by firearms that the store had sold in a “straw purchase.”102 Following hot-on-the-heels of Kim v. Coxe, the Badger Guns verdict was reached just months later, and found that defendant gun seller negligently provided an eighteen- year-old a handgun via a straw purchase.103 The Wisconsin jury ordered the defendant to cough up a whopping $5.73 million in compen- satory and punitive damages.104 The Badger Guns jury—comprised of eight women and four men—deliberated for nine hours before reaching its verdict.105 In an interview, the jury foreperson stated that all jurors agreed the defendant’s gun-sale practices were shoddy.106 Workers were not trained, received no policy or procedure guidance, and completely lacked famil-

98. John Dougherty, SPECIAL REPORT: Staying up to date on Alaska state gun laws, WEBCENTER11 (last updated Mar. 27, 2019, 8:22 PM), https:// www.webcenter11.com/content/news/SPECIAL-REPORT-Staying-up-to-date-on- Alaska-state-gun-laws-507648581.html. 99. See Miller, supra note 96. 100. Alaska Population 2020 (Demographics, Maps, Graphs), WORLD POPULATION REV., https://worldpopulationreview.com/states/alaska-population/. 101. See BORNSTEIN & GREENE, supra note 36, at 50. 102. Wang, supra note 26. In a “straw purchase,” a purchaser is actually buying a gun on behalf of someone else, usually to circumvent some legal requirement that the true purchaser is unable to satisfy. See Trafficking & Straw Purchasing, GIFFORDS L. CTR., https://lawcenter.giffords.org/gun-laws/policy-areas/crime-guns/trafficking-straw- purchasing/ (last visited Apr. 28, 2020). Straw purchases are the most common method of firearm trafficking in the United States. Id. For more details about the jury verdict in Norberg v. Badger Guns, see 2015 WL 10527523 (Wis. Cir. Oct. 13, 2015). 103. Wang, supra note 26. 104. Id. 105. Erik Eckholm, Two Officers Were Shot; Wisconsin Store Liable for Gun Sale, N.Y. Times (Oct. 13, 2015), https://www.nytimes.com/2015/10/14/us/gun-shop-held-liable-for-purchase-linked-to-shooting-of-police.html; see also John Diedrich, Jury finds for wounded officers in Badger Guns lawsuit, MILWAUKEE J. SENTINEL (Oct. 13, 2015), https://www.wisn.com/article/jury-finds-badger-guns-liable-in-shooting-of-two-milwaukee-police-officers/6329023#. 106. Tara Dodrill, Badger Guns: $6 Million Verdict In Police Shooting Straw Purchase Case Ordered By Milwaukee Jury, INQUISITR (Oct. 14, 2015), https:// www.inquisitr.com/2494160/badger-guns-6-million-verdict-in-police-shooting-straw-pur chase-case-ordered-by-milwaukee-jury/. 2021] EXTRALEGAL INFLUENCES ON JURIES 311 iarity with federal gun-sales regulations.107 Only ten out of twelve jurors were required to find for the plaintiffs on any given question.108 What factors might explain the jury’s willingness to hold the gun store liable? Perhaps jurors were particularly troubled because the victims were police officers.109 Perhaps the large number of female jurors played a role, as women tend to be more “pro-gun control” than men.110 Perhaps any political or cultural polarization in the jury room was overcome on account of the majority verdict requirement (as opposed to a unanimous verdict requirement). Or perhaps, rather than any extralegal factors, the Badger Guns plaintiffs prevailed simply because the defendant’s gun-sales practices were so blatantly egregious.

C. JURORS’ PERCEPTION OF CORPORATE DEFENDANTS GENERALLY Corporate defendants present unique challenges.111 Assigning liability to an imaginary entity rather than individual defendants could be a baffling task for some jurors.112 Despite these difficulties, this subpart examines a few key ways a gun-manufacturer defendant’s status as a corporate entity could impact a jury’s perception of the defendant. First, many researchers posit that jurors display a distinct anti-corporate bias, although research and evidence paints a more equivocal picture.113 Opinions on such a bias are thusly mixed; some suggest that jurors are softer on “suite crime” than on “street crime.”114 Specifically, jurors may be influenced by a corporation’s reputation, the utility of its products, and the nature of corporate activity (profit or not-for-profit).115 Based on these factors, common sense suggests that jurors would tend not to look particularly favorably upon a corporation that profits through the manufacture of, say,

107. Id. 108. Erik Eckholm, Trial in Wisconsin Tests Gun Store’s Judgment on Illegal Sales, N.Y. Times (Oct. 12, 2015), https://www.nytimes.com/2015/10/13/us/milwaukee-gun- store-trial.html. 109. See Mark Curnutte, Why juries have a hard time convicting cops, CINCINNATI ENQUIRER (last updated July 26, 2017, 7:40 PM), https://www.cincinnati.com/story/ news/2017/07/24/possible-convict-police-officer-because-whites-reluctance-do-so/ 492380001/. 110. Gun Laws and Women, GALLUP (May 12, 2000), https://news.gallup.com/poll/ 2908/gun-laws-women.aspx; see Emily DePrang, Women and Guns: The Conflicted, Dangerous, and Empowering Truth, https://www.marieclaire.com/politics/a18016/women-and-guns/. Only 12% of women own guns, as compared to 33% of men. Id. More relevant to the Badger Guns case is the fact that 62% of women believe laws governing gun sales should be stricter. Id. 111. Thimsen et. al., supra note 28. 112. Id. 113. Hans, supra note 28, at 177; Thimsen et. al., supra note 28. 114. Hans, supra note 28, at 192. 115. Id. 312 CREIGHTON LAW REVIEW [Vol. 54 assault rifles.116 Further, although one can imagine how reputation might work either for or against a corporate defendant, even a sterling reputation may be insufficient to protect a manufacturer of assault rifles. Consider America’s oldest gun maker, Remington.117 Practi- cally everybody is familiar with the Remington brand, and many probably have memories of grandpa’s trusty-old Remington shotgun that he kept hanging on the wall. But despite two centuries of business success, Remington now finds itself as the principal plaintiff in the Sandy Hook case.118 In that vein, Colt (another legacy of the nineteenth century) has made major concessions (namely, discontinuing production of several firearms) out of fear of litigation.119 With these examples in mind, it seems unlikely that any gun manufacturer’s reputation will be squeaky-clean enough to predispose jurors in the manufacturer’s favor. Second, research indicates that jurors hold corporate defendants to a higher standard than they hold individual defendants.120 In a study conducted by Hans, forty-one percent of jurors agreed (and forty-eight percent disagreed) with the proposition that “corporations should be held to a higher standard of responsibility than individuals.”121 Interestingly, jurors believed in a higher corporate standard at a lesser rate than mock jurors or public opinion poll respondents generally.122 Jurors rationalize higher corporate standards by point- ing to a corporation’s organizational resources and special knowledge,123 role and responsibility,124 the potentially widespread, severe impact of corporate wrongdoing,125 and the sheer size of many corporate entities.126 Of these jurors who believe in an elevated corporate standard, forty-eight percent say that the status of the defendant in

116. Most Americans (68%) favor a ban on assault weapons. See Marc Fisher, The AR-15: ‘America’s rifle’ or illegitimate killing machine?, WASH. POST (Feb. 15, 2018, 6:25 PM), https://www.washingtonpost.com/politics/the-ar-15-americas-rifle-or-illegitimate- killing-machine/2018/02/15/743e66ca-1266-11e8-9065-e55346f6de81_story.html. Suf- fice to say, a large number of jurors might fail to see the utility of an AR-15. Id. 117. Jessen Barron, How America’s Oldest Gun Maker Went Bankrupt: A Financial Engineering Mystery, N.Y. TIMES (May 1, 2019), https://www.nytimes.com/interactive/ 2019/05/01/magazine/remington-guns-jobs-huntsville.html. 118. Rojas & Hussey, supra note 10. 119.LYTTON, supra note 24, at 226. 120. Hans, supra note 28, at 136. 121. Id. at 118-19. 122. Id. 123. See id. at 122-24. 124. See id. at 124-27. 125. See id. at 129-31. 126. See Hans, supra note 28, at 131-32. It is worth noting that many jurors place a large degree of weight on a corporation’s size in determining whether an elevated standard should apply. Id. For example: “I think your bigger corporations have more ten- dency to push for quality and control . . . [w]here a small, you know, some corporations are only made up of five people . . . I really think that there’s a tremendous difference in 2021] EXTRALEGAL INFLUENCES ON JURIES 313 their case as a corporate entity made a difference to the outcome of the case.127 Even more interestingly, twenty-two percent of jurors who did not believe in an elevated corporate standard stated that the defendant’s corporate status made a difference.128 Thus, regardless of explicit juror belief about elevated corporate standards, just over thirty percent of jurors questioned by Hans said that the fact that the defendant was a corporation made a difference in the outcome of the case.129 Further, in a mock jury study, Hans found that jurors who believed in the elevated corporate standard were more likely to find the corporate defendant negligent.130 Applied to a lawsuit against a gun manufacturer, it does not strain the imagination to suppose that jurors may hold large manufacturers to a higher standard based on some perceived special role or responsibility to the general public, or the devastating impact of mass shootings across the nation. Finally, the deep-pockets hypothesis posits that jurors will be more willing to find corporations liable simply on the basis that corporate defendants can afford to pay damages, and that jurors will assess larger damage awards against corporate defendants than against individual defendants.131 A number of high-profile studies have confirmed the existence of the deep-pockets effect, both in its liability dimension and its damages dimension.132 One commentator remarked: The logic was always the same: People don’t kill people; guns . . . do, or, more precisely, the sellers and manufacturers of those sometimes-lethal objects do the killing . . . . Sooner or later, somewhere or other in this kind of chain, there is bound to be a solvent defendant able to foot the bill and likely to be improved by the chastening experience of a lawsuit.133 Despite the conventional wisdom, research conducted by Hans has produced only modest support for the deep-pockets hypothesis.134 In Hans’s research, providing jurors with relevant financial information did not increase the likelihood that a jury would find a defendant liable, or the size of the damage award assessed.135 In fact, Hans argues that there is more evidentiary support for an empty-pockets effect

that . . . . The bigger corporation should be held more responsible . . . just because they’re responsible for so many people.” Id. at 132. 127. Id. at 133. 128. Id. 129. See id. 130. Hans, supra note 28, at 133. 131. See id. at 178-79. 132. Id. 133. Id. at 181. 134. Id. at 212. 135. Id. at 212. 314 CREIGHTON LAW REVIEW [Vol. 54 than a deep-pockets effect.136 Despite the mixed evidence, could a gun manufacturer’s deep-pockets play a role in juror decision making? Perhaps. But consider the Sandy Hook case, where Remington is the principal defendant. Could Remington’s recent (and well-publicized) bankruptcy137 discourage some potential jurors from holding Reming- ton liable? Could the bankruptcy encourage jurors to assess lesser damage awards than they might otherwise impose?

D. THE IMPACT OF JUROR EMOTION What could be more emotionally laden than a trial arising out of a horrific mass slaughter in a public space? Unfortunately for the Sandy Hook defendants, the answer to that question is almost assur- edly “the horrific mass slaughter of children in a public space.” How will the heart-wrenching nature of the Sandy Hook shooting influence juror decision making in a civil suit against a defendant who manufac- tured Lanza’s gun? “Research suggests that jurors are often unable to control their emotions when making legal judgments.”138 That said, sometimes emotion has a legally relevant role to play.139 For instance, jurors often consider a witness’s emotional display (or lack thereof) in determining that witness’s credibility.140 Jurors may think twice about a witness’s testimony when the emotion displayed on the stand is disproportionate to the subject matter of the case or testimony.141 Clearly, a juror’s view of a witness or testifying victim may be influenced by displayed emotion; but what about the defendant’s emotion in the Sandy Hook case? Gun manufacturers should be mindful about who they put on the witness stand (if they even have any control over that decision). Jurors will likely expect a reverent, respectful demeanor from the manufacturer’s corporate representatives. Insincerity, flippancy, dismissiveness, or irreverence may turn jurors off simply by virtue of the Sandy Hook case’s grave nature.142 Also legally relevant is the impact of emotionally arousing evidence on the jury.143 Gruesome evidence (communicated visually or verbally) tends to produce more pro-plaintiff judgments.144 Indeed,

136. Hans, supra note 28, at 212-13. 137. Tracy Rucinski, U.S. gunmaker Remington exits bankruptcy in tough gun climate, REUTERS (May 17, 2018, 10:40 AM), https://www.reuters.com/article/us-remington-bankruptcy/us-gunmaker-remington-exits-bankruptcy-in-tough-gun-climate-id USKCN1II24T. 138.BORNSTEIN & GREENE, supra note 36, at 244. 139. Id. at 246. 140. Id. at 249-51. 141. See id. 142. See id. 143. See id. at 254-57. 144. BORNSTEIN & GREENE, supra note 36, at 255-56. 2021] EXTRALEGAL INFLUENCES ON JURIES 315 the more severe the plaintiff’s injuries, the likelier the jury is to find the defendant liable, even when evidence is held constant.145 Addi- tionally, juror anger toward the defendant tends to feed into sympathy for the plaintiff.146 In the criminal setting, jurors can attain powerful pro-victim biases simply by handling a murder weapon.147 In a suit against a gun manufacturer, then, the severity of a mass shooting will almost certainly play a role in at least some jurors’ willingness to find the defendant liable. In the Sandy Hook case, for example, it cannot be overstated how sympathetic the victims and plaintiffs will appear to jurors. Likely, those sympathies could cause anger toward the gun manufacturer defendant, which will fuel victim-sympathies even further, in a self-contained loop. Also, because so much of the Sandy Hook case will fixate on the marketing of Bushmaster’s XM15-E2S semiautomatic rifle, it may well fall to the jury to physically handle the AR-15 style weapon. Assuming that the aforementioned bias generated by holding a murder weapon translates to the civil context, this too could powerfully bias the jury against the defendant. Jurors may also experience legally irrelevant emotion.148 Most notably, “[p]retrial publicity (PTP) has a robust effect on jurors’ verdicts.”149 In a mock jury study, deliberating juries in a criminal trial were thirty-one percent more likely to convict a defendant when they had been exposed to “emotional PTP.”150 When considering the lower standard of proof in a civil case, one could speculate that civil juries would be even more influenced by emotional PTP. Of course, the Sandy Hook shooting remains lodged in the national conscience; it even elicited a same-day Presidential address to the nation.151 Fur- ther, the shooting took place in Connecticut, the third smallest state in the United States by geographic area.152 The Sandy Hook massacre must have dominated both national and local news for the entire jury pool, and the shooting remains a common topic of political discussion nearly a decade later. Unfortunately for the Sandy Hook defendants, this is one instance where emotional PTP is truly unavoidable.

145. Id. at 256. 146. Id. 147. Id. 148. Id. at 258. 149. Id. 150. BORNSTEIN & GREENE, supra note 36, at 259. 151. Slack, supra note 4. 152. Matt Rosenberg, Which are the Smallest States in the U.S.?, THOUGHTCO, https://www.thoughtco.com/smallest-states-in-the-united-states-4071971 (last updated Feb. 6, 2020). 316 CREIGHTON LAW REVIEW [Vol. 54

E. JURORS’ RESPONSES TO OTHER CIVIL SUITS ARISING OUT OF MASS SHOOTINGS

Jurors’ responses to other civil suits arising out of mass shootings merit some brief consideration. Namely, we will look to notable premises liability suits in which juries rendered verdicts. While these cases are imperfect points of comparison, they may be illuminating as to juries’ willingness to hold defendants liable for mass shootings carried out by criminal third parties. First, a Colorado jury found that the owner of the Aurora movie theater where James Holmes murdered twelve (and wounded seventy) during a film’s midnight premiere was not liable to those shooting victims.153 The six-person jury contained only one woman and deliberated for four hours.154 The plaintiffs claimed that the theater had inadequate security and that armed guards should have been present on the night of the shooting.155 The jury agreed that the defendant did not have reason to know that a movie theater could be the target of a mass shooting.156 Second, a jury found that Virginia Tech was liable for the actions of the infamous 2007 shooter who killed thirty-two victims before turning the gun on himself.157 Here, the claim was that the university failed to adequately warn students once it became apparent that campus-wide danger was afoot.158 The jury awarded four million dollars in damages to the plaintiffs, but a judge reduced damages to $100,000.159 Unfortunately for the plaintiffs, that jury verdict was overturned by the Virginia Supreme Court, which found that Virginia Tech was not liable as a matter of law.160

153. John Ingold, Cinemark not liable for Aurora theater shooting, civil jury says, DENVER POST, https://www.denverpost.com/2016/05/19/cinemark-not-liable-for-aurora- theater-shooting-civil-jury-says/ (last updated May 23, 2016, 3:16 PM). 154. Id. 155. Id. 156. Id. “That killer, [the defendant’s attorney] said after the verdict Thursday, was ‘completely unpredictable, unforeseeable, unpreventable and unstoppable.’ To put blame on [defendant movie theater] would have unjustly extended liability to businesses across the country for things they could not possibly predict, he said.” Id. 157. Savage, supra note 40. 158. Id. 159. Id. 160. Id. In setting the jury’s verdict aside, the Virginia Supreme Court implied that the verdict was unreasonable. See id. (quoting the Virginia Supreme Court) (“Based on the limited information available [to officials] prior to the shootings in Norris Hall, it cannot be said that it was known or reasonably foreseeable that students in Norris Hall would fall victim to criminal harm . . . . Under the facts of this case, there was no duty . . . to warn students about the potential for the criminal acts by third parties.”) 2021] EXTRALEGAL INFLUENCES ON JURIES 317

Finally, and most interestingly, is the suit against MGM Resorts in the wake of the 2017 Las Vegas shooting.161 MGM recently settled that suit for the hefty sum of $735 million.162 Why was MGM willing to settle the case at such a high price tag only two years after the tragic incident? Rumors abound that MGM secretly presented its case to three independent mock juries, all of which returned verdicts in favor of the Las Vegas victims.163 The mock jury trials which were conducted last year were comprised of jurors who were paid to serve on the panel and who were carefully selected in advance, just as in an actual jury selection to represent a cross-section of ages, educational background, and professions . . . . All three mock juries, independent of each other, found that the MGM Resorts International owned Mandalay Bay Hotel was found negligent in the mass shooting . . . . When debriefed . . . the juries in all three mock trials uniquely focused on the word “prevention,” as the reason to return a verdict in favor of the plaintiffs ...... [A]ll the juries independently agreed that the defendants were culpable because they could have prevented the mass shooting . . . .164 What guidance do these premises liability cases offer for our examination of suits against gun manufacturers? Perhaps, if anything, we learn that jurors are willing to lay blame for mass shootings at the feet of somebody other than the killer. Indeed, four-out-of-five jury verdicts described above (counting the alleged Las Vegas mock juries separately) returned verdicts in favor of the victim-plaintiffs. How- ever, these cases highlight another difficulty: none of the aforementioned pro-plaintiff jury verdicts actually led to full recovery for the plaintiffs. The Aurora jury found for the defendant, the Virginia Tech jury’s verdict was set aside on appeal, and the Las Vegas mock juries’ verdicts were never official, though they certainly encouraged MGM to settle.

F. POLITICAL POLARIZATION AND JUROR DECISION MAKING

As mentioned in Part II(B)(1) above, cultural polarization will almost certainly play a role in a jury’s deliberations during a case

161. Lia Eustachewich, MGM Resorts to pay $735M settlement in Las Vegas massacre lawsuits, N.Y. POST (Oct. 3, 2019, 3:10 PM), https://nypost.com/2019/10/03/mgm-resorts-to-pay-735m-settlement-in-las-vegas-massacre-lawsuits/. 162. Id. 163.Poppa, supra note 41. 164. Id. 318 CREIGHTON LAW REVIEW [Vol. 54 against a gun manufacturer. The public is likely split along several separate (but largely overlapping) fault lines. The most obviously relevant dichotomy is the traditional left/right political divide.165 There is no shortage of interesting statistics to highlight the stark contrast in how Republicans and Democrats feel about firearms. A majority (sixty-three percent) of Republican gun-owners worry that the government might pass gun-control laws to confiscate their firearms; only twenty-two percent of gun-toting Democrats share that anxiety.166 Only one-third of Republicans favor stricter gun laws in this country—and most of those Republicans are women.167 Even more telling, thirty-five percent of Republicans believe that preserving gun-rights is more important than protecting people from gun violence.168 Over half (fifty-three percent) of Republicans believe that gun rights are equally as important as protection from gun violence.169 Yet, over half of Democrats (fifty-one percent) hold the firm position that protecting the public from gun violence should take priority over gun rights.170 Of course, the Sandy Hook case does not strictly touch upon governmental gun control; regardless, it seems clear that jurors who lean to the right will generally be less amenable to victims’ claims against gun manufacturers, and vice versa for those on the left. Yet, some polling suggests that even those who identify themselves as “Strong Democrat[s]” favor the protections afforded gun manufacturers by the Protection of Lawful Commerce in Arms Act (“PLCAA”) at a rate of forty-seven percent, edging-out the forty-five percent of Strong Democrats who disfavor the PLCAA.171 All other polled groups similarly showed positive attitudes toward the PLCAA, with ninety-one percent of “Strong Republican[s]” approving of the statute.172 But how could these numbers possibly be accurate? Is it really true that so many Democrats favor civil immunity for gun manufacturers? Two pieces of evidence cast serious doubts on the veracity of this poll. First, the polling was commissioned by a biased party: The National Shooting Sports Foundation.173 Second, repeal of the PLCAA has become a mainstream Democratic policy position.174 Dur- ing the 2020 Democratic Primaries, Joe Biden attacked Bernie Sand-

165. Frankovic, supra note 43. 166. Id. 167. Id. 168. Id. 169. Frankovic, supra note 43. 170. Id. 171. Voters Do Not Support Lawsuits Against Firearms Manufacturers, Retailers for Gun Crime, Poll Finds, supra note 45. 172. Id. 173. Id.; Frankovic, supra note 43. 174. See, e.g., Vigdor, supra note 44. 2021] EXTRALEGAL INFLUENCES ON JURIES 319 ers’s gun-record on the basis that Sanders had voted for the PLCAA in 2005.175 Sanders wasted no energy trying to defend himself: “I’ve cast thousands of votes, including bad votes. That was a bad vote.”176 Ad- ditionally, repealing the PLCAA was one of Elizabeth Warren’s key gun-reform proposals during her campaign.177 For these reasons, it seems that political affiliation would polarize jurors in a suit against a gun manufacturer, regardless of limited polling data to the contrary.

III. SYNTHESIS This Article has covered a great deal of ground, and our discussion has unfortunately but necessarily been “a mile wide and an inch deep.” That said, this Section summarizes the findings thus far and considers their combined effects on juror decision making in suits against gun manufacturers. Henceforth, the discussion is framed in terms of the Sandy Hook case as a helpful model. Recall that, in order for the Sandy Hook plaintiffs to succeed, they must show that the defendant’s marketing of the Bushmaster XM15-E2S violated the Con- necticut Unfair Trade Practices Act (“CUTPA”), and that defendant’s CUTPA violation was a proximate cause of the Sandy Hook shooting. First, jurors may attribute the frightening and negative aspects of a gun’s physical appearance to a gun-manufacturer defendant, much as empirical research has borne out similar results in the criminal setting.178 Thus, the Sandy Hook jurors may take a negative view of the defendant based on the attributes of the Bushmaster XM15-E2S AR- 15 rifle that Lanza used in his slaughter. Second, we can glean a number of valuable lessons from past jury verdicts rendered in suits against gun manufacturers, both pre- and post-PLCAA.179 The Halberstam case exemplifies the difficulties in convincing a jury on the causation issue,180 even when the jury agrees

175. Id. 176. Id. 177. Ginger Gibson & John Whitesides, Factbox: Democratic presidential candidates back gun restrictions after mass shootings, REUTERS (Sept. 10, 2019, 12:39 PM), https:// www.reuters.com/article/us-usa-election-guns-factbox/factbox-democratic-presidential- candidates-back-gun-restrictions-after-mass-shootings-idUSKCN1VV2BY. 178. See supra Part II(A). 179. See supra Part II(B). 180. Causation difficulties have been marginally ameliorated in the Sandy Hook case by a judge’s ruling that defendant Remington cannot obtain Lanza’s psychological records because of patient-protection laws. Almost certainly, Remington wished to argue that Lanza was unstable and obsessed with mass shootings, and that he would have committed the Sandy Hook massacre with-or-without Bushmaster’s marketing of the XM15-E2S rifle. Psychological and medical records would likely have bolstered that line of argument in the mind of the jury. Nate Raymond, Gunmaker Remington can’t get Sandy Hook shooter’s psych records: judge, REUTERS LEGAL (Mar. 18, 2020, 5:07 PM), Westlaw Practitioner Insights. 320 CREIGHTON LAW REVIEW [Vol. 54 that the gun manufacturer defendant acted negligently. Hamilton gave us a glimpse into an intense jury deliberation in which jurors became violently ill from the pressure and uncertainties of the case.181 Importantly, Hamilton seems to suggest that (partially fueled by cultural and political polarization) compromise verdicts (and perhaps hung juries) could occur somewhat disproportionately in suits against gun manufacturers.182 The juries in the two post-PLCAA cases reached different verdicts, which set our minds to speculation as to reasons why. Proposed explanations were geographic and cultural differences, the gender makeup of the juries, and different characteristics between the victims. Namely, the Wisconsin jury held in favor of white-male police-officer victims, but the Alaska jury found for the gun-seller defendant rather than the young Asian victim.183 Third, we considered jurors’ views of corporate defendants generally.184 As applied to the Sandy Hook case, jurors may well be biased against the gun-manufacturer defendant based on jurors’ perceived lack of utility of assault rifles. Additionally, a substantial minority of jurors tend to believe that corporate defendants should be held to a higher standard than individuals, which could prove a useful thumb on the plaintiffs’ side of the scale. Last, the deep-pockets hypothesis rests on shaky ground, but there is some risk that jurors may simply demand that a corporation pay damages because they can afford it. Fourth, juror emotion will be a long, rusty nail in the Sandy Hook defendant’s coffin.185 The jury will be biased toward the plaintiffs when confronted with undeniably gruesome and horrific evidence about Lanza’s massacre. The defendant must be careful to place witnesses on the stand who will display appropriate levels of emotion and reverence, considering the dire circumstances. Also damning will be the impact on jurors if allowed to handle Lanza’s gun. (This is a negligent marketing case, after all. How can jurors determine whether a product was marketed negligently without getting up-close and personal with the product?) And of course, the Sandy Hook defendant has no hope of avoiding the effects of pretrial publicity, which will likely increase the likelihood of a plaintiff-friendly verdict. Fifth, the premises liability cases provided helpful examples of juries who were willing to hold defendants liable for the criminal and

181. See Kolker, supra note 82 (indicating that during deliberations, the jury sent the following note to Judge Weinstein: “We are very upset. We are starting to fight!! We cannot reach a decision. We are emotionally drained, and some of us feel physically ill. Please, please give us more direction!”). 182. See supra Part II(B)(1). 183. See supra Part II(B)(2). 184. See supra Part II(C). 185. See supra Part II(D). 2021] EXTRALEGAL INFLUENCES ON JURIES 321 murderous actions of third-parties.186 These cases may be particularly indicative of likely trends, as these verdicts are all quite recent and may reflect Americans’ growing impatience with the mass-shooting status quo. Finally, political polarization will pose a grave threat to plaintiffs’ hopes of recovery.187 There is certainly a risk that jurors’ views on the Sandy Hook case will be colored by their views on guns or gun law generally. Democrats have recently brought the PLCAA’s protections for gun manufacturers into the public spotlight. This may prove counterproductive to the plight of gun-victim plaintiffs if staunch Republicans find their way onto juries—and let’s face it, can any plaintiff truly hope to keep out all right-leaning prospective jurors? Would judges tolerate such tactics on voir dire? Polarization in the jury room could be devastating for the plaintiffs—the Sandy Hook jury’s verdict must be unanimous.188

IV. CONCLUSION

When victims of gun violence sue gun manufacturers for injuries caused by a criminal shooter’s use of the manufacturer’s product, myr- iad competing extralegal influences will vie for jurors’ attentions. Pulling jurors toward a pro-plaintiff verdict will be jurors’ negative attribution of a gun’s characteristics to the defendant, a general anti- corporate bias, a belief that corporate defendants should be held to a higher standard than individual defendants, the deep-pockets effect, and jurors’ strong emotional reactions to the facts and evidence of the underlying shooting. However, other forces will pull jurors toward a pro-defendant verdict. For instance, convincing the Sandy Hook jury that the defendant’s violation of a Connecticut Unfair Trade Practices Act provision proximately caused the Sandy Hook massacre will be a very tall order. Additionally, deep political entrenchments may lead to highly charged, polarized juries that tend to compromise, hang, or even clear gun manufacturers of liability. Prudent litigants will consider each of these influences in turn, capitalizing on favorable influences and mini- mizing (to the extent possible) the impact of unfavorable influences. Come trial time, the future of gun litigation under the PLCAA will be at stake. The Supreme Court’s denial of certiorari in Soto ex-

186. See supra Part II(E). 187. See supra Part II(F). 188. See Connecticut Judicial Branch Civil Jury Instructions 2.9-3 Process for Jury’s Deliberations (Revised Jan. 1, 2008), https://www.jud.ct.gov/JI/Civil/Civil.pdf (“Your verdict must be unanimous. There is no such thing as a majority vote of a jury in Connecticut. Rather, you must all agree on the verdict.”). 322 CREIGHTON LAW REVIEW [Vol. 54 posed a leak in the hull of gun manufacturers’ ship—a leak that the PLCAA was thought to have patched up. The institution of the jury is now the manufacturers’ last line of defense. Will it hold? 323

WHAT IS A “REASON TO BELIEVE”? EXECUTION OF AN ARREST WARRANT AT A SUSPECT’S RESIDENCE SHOULD REQUIRE PROBABLE CAUSE

I. INTRODUCTION ...... 323 II. BACKGROUND ...... 326 A. EXAMINATION OF PROBABLE CAUSE AND REASONABLE SUSPICION STANDARDS ...... 326 B. THE CASE THAT STARTED THE CONTROVERSY: THE FACTS AND HOLDING OF PAYTON V. NEW YORK ...... 330 C. THE SPLIT OF AUTHORITY ...... 333 1. Cases Holding the Payton Reason to Believe Standard Equates to Probable Cause ...... 334 2. Cases Holding the Payton Reason to Believe Standard is Something Less than Probable Cause ...... 340 III. ARGUMENT ...... 343 A. THE CORRECT INTERPRETATION OF THE REASON TO BELIEVE STANDARD IS PROBABLE CAUSE ...... 343 1. The Supreme Court Uses Reason to Believe and Probable Cause Interchangeably ...... 345 2. The Fourth Amendment’s Stringent Protection of the Home Is More Commensurate with the Probable Cause Standard ...... 348 B. PUBLIC POLICY STRONGLY SUPPORTS A PROBABLE CAUSE STANDARD ...... 351 C. A REBUTTAL OF THE REASONINGS THE CIRCUIT COURTS HAVE UTILIZED TO EQUATE THE PAYTON V. NEW YORK STANDARD TO REASONABLE SUSPICION ...... 354 IV. CONCLUSION ...... 357

I. INTRODUCTION

The Fourth Amendment of the United States Constitution ensures the venerated right of the people to find sanctuary from unreasonable governmental intrusion within the unambiguous confines of 324 CREIGHTON LAW REVIEW [Vol. 54 their private homes.1 Absent exigent circumstances, a distinct line is drawn promptly at the front door of the citizen’s home.2 These protections bestowed upon citizens are fundamental in safeguarding the sanctity of the home.3 Additionally, these protections extend to wherever individuals harbor a reasonable expectation of privacy.4 Explicit language contained within the Fourth Amendment provides that no home shall be subject to unreasonable searches and seizures, and no warrant shall be issued unless founded upon probable cause.5 Adherence to strict textualism establishes the Fourth Amend- ment does not require a warrant for every search and seizure because, when read in its entirety, the Fourth Amendment contains two distinct clauses: the Rights Clause and the Warrant Clause.6 However, the United States Supreme Court has established a warrant requirement when it is practicable for the government to obtain one.7 The warrant requirement, nevertheless, has well delineated exceptions when a warrant would be impracticable to obtain.8 In the seminal case Payton v. New York,9 the Supreme Court stated, for the purposes of the Fourth Amendment, arrest warrants carry an implicit limited authority to enter a suspect’s residence when there exists a reason to believe the suspect is within.10 This language ignited a point of contention between the federal circuit courts and

1. Payton v. New York, 445 U.S. 573, 589-90 (1980) (discussing the notion that at the core of the Fourth Amendment is the individual’s right to find sanctuary from unreasonable intrusion by the government). 2. Payton, 445 U.S. at 590 (“[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”). 3. Id. at 589-90. 4. Katz v. United States, 389 U.S. 347, 351 (1967). 5. See U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 6. Vernonia School District 47J v. Acton, 515 U.S. 646, 652-53 (1995) (noting that a strict reading of the Fourth Amendment requires a reasonableness standard for searches and seizures which requires balancing the governmental intrusion and the individual’s right to privacy, not necessarily a warrant); see also Guide For Users, 39 GEO. L.J. ANN. REV. CRIM. PROC. 1, 3 (2010) (noting two distinct clauses exist in the Fourth Amendment); Payton, 445 U.S. at 584 (“[A]s it was ultimately adopted, however, the Amendment contained two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause.”). 7. Carroll v. United States, 267 U.S. 132, 156 (1925) (noting that a warrant must be obtained and used, when practicable, which is supported and issued by judicial approval; however, in searches and seizures where it is impracticable to obtain a warrant, the law enforcement officer must show probable cause). 8. Guide for Users, supra note 6 at 44. 9.445 U.S. 573 (1980). 10. Payton, 445 U.S. at 603. 2021] WHAT IS A “REASON TO BELIEVE”? 325 state courts with differing opinions on its interpretation.11 Differ- ences in interpretation and application are still prevalent today with some courts reasoning the language used in Payton applies a reasonable suspicion standard that is something less than probable cause and the remaining courts holding the reason to believe standard quintes- sentially equates to probable cause.12 In the former, officers armed with an arrest warrant only need a reasonable suspicion that a suspect resides at and is within the residence in order to enter the premises and execute the arrest warrant.13 In the latter, officers armed with an arrest warrant are required to show probable cause that a suspect resides at and is within the residence in order to execute the arrest warrant.14 First, this Note will discuss the standards of probable cause and reasonable suspicion, highlighting that these standards are distinguishable and probable cause requires additional magisterial findings.15 Second, this Note will explore the facts and holdings of Payton.16 Third, this Note will discuss differing interpretations and applications by courts of the reason to believe standard in Payton, and the background and reasonings for those decisions.17 Fourth, this Note will argue that the correct interpretation of the reason to believe standard from Payton is to equate the standard with probable cause.18 This conclusion is supported through the Court’s usage of specific terms, how the Court has afforded protections to the home, and how

11. Cunningham v. Baltimore Cty, 232 A.3d 278, 224 (Md. Ct. Spec. App. 2020) (highlighting the various federal circuit courts and state courts that have reached differing conclusions on the interpretation of Payton). Compare State v. Smith, 90 P.3d 221 (Ariz. Ct. App. 2004) (concluding that the “reason to believe” standard requires the same reasonableness as probable cause, and noting this ruling was more consistent with the Arizona State Constitution and previous cases within Arizona), with State v. Cooks, No. 2016-CA-40, 2017 Ohio App. LEXIS 199, at *9 (Ohio App. 2d Jan. 20, 2017) (citing United States v. Pruitt, 458 F.3d 477 (6th Cir. 2006)) (adopting that “reason to believe” is something less than probable cause and that police officers subsequently do not need probable cause to enter a residence to execute an arrest warrant). 12. Compare United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir. 2008) (determining “reason to believe” equates to probable cause), with United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (reasoning that reasonable suspicion means something less than probable cause because the Supreme Court used a different phrase). 13. Thomas, 429 F.3d at 286 (“[W]e expressly hold that an officer executing an arrest warrant may enter a dwelling if he has only a ‘reasonable belief,’ falling short of probable cause to believe.”). 14. United States v. Jackson, 576 F.3d 465, 468-69 (7th Cir. 2009) (noting that law enforcement officers need a degree of suspicion that equates to probable cause in order to execute an arrest warrant and the third party may have a Fourth Amendment claim against the officers because of the ruling in United States v. Steagald, 451 U.S. 204 (1981)). 15. See infra notes 21-55 and accompanying text. 16. See infra notes 56-80 and accompanying text. 17. See infra notes 81-175 and accompanying text. 18. See infra notes 176-91 and accompanying text. 326 CREIGHTON LAW REVIEW [Vol. 54 public policy dictates a probable cause interpretation.19 Finally, this Note will discuss opposing arguments and offer rebuttals.20

II. BACKGROUND

A. EXAMINATION OF PROBABLE CAUSE AND REASONABLE SUSPICION STANDARDS

Quantifiable standards for probable cause and reasonable suspicion have been nothing short of elusive for courts, academics, and commentators for centuries.21 Probable cause is at the heart of the Fourth Amendment and is quite possibly the most misunderstood phrase in American law.22 Probable cause defines what is and what is not a legal search, and it is the substantive constraint on police power in America.23 This fundamental standard of evidentiary showing by law enforcement has eluded courts for centuries because it lacks hard certainties.24 Both probable cause and reasonable suspicion are not easily reduced to neat legal standards that can be quantified more precisely like other burdens of proof that exist in our legal system.25 Regardless of this fruitless task, the United States Supreme Court has

19. See infra notes 192-274 and accompanying text. 20. See infra notes 275-97 and accompanying text. 21. See Craig S. Lerner, The Reasonableness of Probable Cause, 81 TEX. L. REV. 951, 973-74 (2003) (noting persistent criticism and attempts to define what needs to be shown for a warrant and scholars’ attempts to define such a standard since the mid- seventeenth century); C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees, 35 VAND. L. REV. 1293, 1306 (1982) (explaining attempts by the Supreme Court and commentators to equate reasonable and probable and whether probable cause means “more probable than not” have been occurring at least back to Carroll v. United States, 267 U.S. 132 (1925)). 22. See Andrew M. Crespo, Probable Cause Pluralism, 129 YALE L.J. 1276, 1279 (2020) (discussing that courts suggest the term might be the most confusing two word term in American law); Holmes v. State, 368 Md. 506, 519 (Md. Ct. App. 2002) (analyzing that due process and probable cause have produced the most confusing commentary in American law). 23. See Crespo, supra note 22, at 1279 (citing Dunaway v. New York, 442 U.S. 200, 213 (1979)) (describing the core of the Fourth Amendment as the probable cause standard and a constraint on police power in America); id. at 1279 (quoting Carroll, 267 U.S. at 156) (“[Probable Cause] is ‘the line of distinction’ between legal and illegal searches and seizures.”); Berger v. New York, 388 U.S. 41, 50 (1967) (quoting Weeks v. United States, 232 U.S. 383, 391-92 (1914)) (“The effect of the Fourth Amendment is to put the courts of the United States . . . under limitations and restraints as to the exercise of such power.”). 24. See United States v. Cortez, 449 U.S. 411, 417 (1981) (noting that probable cause is a process founded upon probabilities and common-sense conclusions). 25. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing Illinois v. Gates, 462 U.S. 213, 232 (1983)) (noting the concepts of reasonable suspicion and probable cause are not easily reduced and efforts to elaborate create unnecessary difficulties and require consideration of the totality of the circumstances). See generally McCauliff, supra note 21 (discussing other burdens of proof in the American legal system). 2021] WHAT IS A “REASON TO BELIEVE”? 327 held the level of evidentiary showing for reasonable suspicion is less than that for probable cause.26 Determining the existence of either probable cause or reasonable suspicion begins with an examination of the historical facts that led to a search or seizure and ends with an application of those facts to law.27 The issue that must be decided by courts is whether those facts, when viewed from the standpoint of an objectively reasonable police officer, satisfy the constitutional standard of probable cause.28 However, the only practical guidance given by the Supreme Court to assist lower courts in wading through the minefield of probable cause is to look at the totality of the circumstances.29 The question then becomes what constitutes reasonable suspicion and, subsequently, what raises reasonable suspicion to probable cause.30 The standard of reasonable suspicion is significantly less than preponderance of the evidence and is less than probable cause.31 The term has been described as requiring more than inchoate and unparticularized suspicions; it requires more than a hunch by the law enforcement officer.32 The standard must be met by some objective evidentiary justification, and the suspicion must be based on some articulable facts.33 Courts have allowed for specific reasonable infer-

26. See Sokolow, 490 U.S. at 7 (concluding that probable cause is lower than “preponderance of the evidence,” but higher than what is required for reasonable suspicion); Ornelas v. United States, 517 U.S. 690, 695 (1996) (determining that precisely defining probable cause and reasonable suspicion is not possible). 27. Ornelas, 517 U.S. at 696 (1996) (“[T]he first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact.”); see also Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest . . . .”). 28. Ornelas, 517 U.S. at 696-97; see also Guide for Users, supra note 6, at 13-14 (noting the determination is twofold: look to the historical facts of the case and see if the facts viewed from the reasonable police officer amount to probable cause). 29. See Crespo, supra note 22, at 1281 (quoting Donald Dripps, Living with Leon, 95 YALE L.J. 906, 907 (1986)) (noting the most explicit guidance offered by the Supreme Court is to consider the circumstances and make a practical decision, and probable cause “is whatever a magistrate says it is”). 30. See id. at 1279 n.1 (quoting Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 414 (1974)) (describing reasonable suspicion as the “pint-sized version of probable cause”); Sokolow, 490 U.S. at 7 (determining that reasonable suspicion is less than probable cause). 31. Margaret Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60 OHIO ST. L.J. 99, 102 (1999); see Sokolow, 490 U.S. at 7 (determining reasonable suspicion is less than probable cause and substantially less than preponderance of the evidence). 32. Terry v. Ohio, 392 U.S. 1, 27 (1968) (“[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences . . . .”). 33. Terry, 392 U.S. at 15, 21; see also Raymond, supra note 31, at 102 (citing Terry, 392 U.S. at 15, 21) (noting the basis for determinations of reasonable suspicion is through objective evidentiary justifications and articulable facts). 328 CREIGHTON LAW REVIEW [Vol. 54 ences to be drawn from the officer’s own experience; however, the limitation to that allowance is the experience of the officer alone does not justify reasonable suspicion.34 The standard for reasonable suspicion is less rigid than probable cause, requires less proof, and relies less on the credibility of the source than probable cause.35 Probable cause has received various definitions through the centuries, and one can predict it will continue to ebb and flow.36 Chief Justice Marshall observed the term probable cause meant something less than evidence required for condemnation but imports something similar to circumstances that warrant suspicion.37 Similar to reasonable suspicion, probable cause can be founded upon specific inferences based on an officer’s personal experience.38 However, probable cause must be based on more proof or articulable facts than reasonable suspicion, and it requires more credible information that can be independently verified.39 To assist lower courts in evaluating hearsay evidence provided by officers to establish probable cause, the Supreme Court provided what was referred to as the Aguilar-Spinelli test.40 This test had to be rig- orously applied by a neutral magistrate to determine the reliability of the information provided by officers that was not available to be independently verified.41 The first prong of the test required an examination of the basis of knowledge and a showing that the information was obtained in some dependable manner, not just through rumor or speculation.42 The second prong, the veracity prong, required facts to be shown that established the credibility and reliability of the source.43

34. Raymond, supra note 31, at 103. 35. Alabama v. White, 496 U.S. 325, 330 (1990) (citing Adams v. Williams, 407 U.S. 143 (1972)) (“[R]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also . . . can arise from information that is less reliable . . . .”). 36. See Lerner, supra note 21, at 981 (noting the ebb and flow of the Supreme Court decisions from the era of Chief Justice Marshall to the holding in Illinois v. Gates, 462 U.S. 213 (1983)). 37. Locke v. United States, 11 U.S. 339, 348 (1813) (“[T]he term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion.”). 38. See Guide for Users, supra note 6, at 14 (“[P]ersonal observations of officers may establish probable cause.”). 39. Id. at 15-16; cf. White, 496 U.S. at 330 (“[R]easonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause . . . .”). 40. Alexander P. Woollcott, Recent Development: Abandonment of the Two-Pronged Aguilar-Spinelli Test: Illinois v. Gates, 70 CORNELL L. REV. 316, 319-22 (1985). 41. Id. 42. Id. at 320. 43. Id. 2021] WHAT IS A “REASON TO BELIEVE”? 329

The rigidity of the Aguilar-Spinelli test required each prong be independently verified for probable cause to exist based on hearsay information.44 However, in Illinois v. Gates,45 the Court revised the probable cause standard and attempted to define the term, as it applied to searches, as a fair probability that evidence of a crime will be located in a specific place.46 The Court in Gates also described the standard as a nontechnical and fluid conception based on assessing probabilities of particular facts.47 The ruling in Gates stated the standard need not be so rigidly applied as previously done under the Aguilar-Spinelli holdings, and instead adopted a totality of the circumstances approach to determining probable cause.48 The fair probability and totality of the circumstances approach has been applied to determinations of probable cause for warrantless searches.49 Warrantless searches are per se unreasonable, notwithstanding exceptions, and this presumption of unreasonableness requires law enforcement to obtain an advance warrant through the judicial process whenever practicable.50 Warrantless arrests, when permitted, must also be founded upon probable cause.51 Exceptions to these requirements exist when the intrusion on the individual is minimal and the government can show an important interest.52 Absent

44. Id. at 321. 45.462 U.S. 213 (1983). 46. Gates, 462 U.S. at 238. 47. See Guide for Users, supra note 6, at 13 (citing Gates, 462 U.S. at 232) (noting the Supreme Court has held probable cause is a practical nontechnical conception and is a fluid concept turning on the “assessment of probabilities in particular factual contexts”). 48. Gates, 462 U.S. at 239. 49. Probable Cause, LEGAL INFO. INST., https://www.law.cornell.edu/wex/proba- ble_cause (last visited Oct. 1, 2020). 50. Katz v. United States, 389 U.S. 347, 357 (1967); see Terry, 392 U.S. at 20 (“[P]olice must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure . . . .”). But see United States v. Martinez- Fuerte, 428 U.S. 543, 545 (1976) (stating the operation of a fixed checkpoint does not require advance warrants). 51. Virginia v. Moore, 553 U.S. 164, 171 (2008) (“[W]e have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.”). See generally Guide for Users, supra note 6, at 13 (discussing the meaning of probable cause in the context of arrests with and without a warrant). 52. Terry, 392 U.S. at 21 (balancing the need for searches and seizures against the invasion of the individual); see also Michigan v. Long, 463 U.S. 1032, 1048-49 (1983) (discussing that warrantless stop and frisks and warrantless searches of vehicles after an arrest are considered reasonable searches). But see Florida v. Jardines, 569 U.S. 1, 11-12 (2013) (stating although the use of dogs did not constitute a search, the privacy interest in the home was too great to allow for the use of police dogs on the curtilage of the home). 330 CREIGHTON LAW REVIEW [Vol. 54 limited exceptions, the government must show probable cause, not just reasonable suspicion, in order to search or arrest an individual.53 Thus, the government must show to an impartial magistrate that the facts of a particular case amount to the higher threshold of probable cause through either more credible sources or greater evidentiary justifications.54 Overall, this presentation requirement ensures the con- tinuation of the enduring principle that probable cause is to be determined by the neutral and detached magistrate, not determined by the overzealous police officer in his or her pursuit to deter crime.55

B. THE CASE THAT STARTED THE CONTROVERSY: THE FACTS AND HOLDING OF PAYTON V. NEW YORK

Payton v. New York56 consisted of two consolidated cases from New York State that challenged the New York Code of Criminal Pro- cedure’s authorization for officers to enter a residence without either an arrest warrant or a search warrant to make arrests.57 The United States Supreme Court noted that the constitutional challenge present in this case was intentionally left open in a previous ruling.58 Numer-

53. See Guide for Users, supra note 6, at 20 (noting a search and seizure unsup- ported by probable cause is generally unlawful and these exceptions are investigatory stops and detentions, protective sweeps, searches beyond routine border searches, and searches with special needs of the government that involve uncommon law enforcement and these exceptions still must be supported by articulable facts and reasonable suspicion); Katz, 389 U.S. at 357 (indicating warrantless searches are per se unreasonable). 54. See Guide for Users, supra note 6, at 21-22 (noting that satisfying the warrant requirement requires an impartial judicial officer to assess whether probable cause exits); White, 496 U.S. at 330 (“[R]easonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause.”). 55.Spinelli v. United States, 393 U.S. 410, 415 (1969). For a further discussion of how these standards have recently shaped police reform and police action, see Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 YALE L.J. 2054, 2107 (2017) (examining the vast movement towards police reform in America); Ivan Pereira, Cities Across US Announce Police Reform Following Mass Protests Against Bru- tality, ABC NEWS (June 12, 2020), https://abcnews.go.com/US/cities-us-announce-police- reform-mass-protests-brutality/story?id=71130499 (highlighting cities in America that have undergone certain reform changes to policing); Sunita Patel, Toward Democratic Police Reform: A Vision for “Community Engagement” Provisions in DOJ Consent De- crees, 51 WAKE FOREST L. REV. 793, 802 (2016) (noting that procedurally sound police actions correlate to more cooporation from society); and Richard A. Oppel Jr. & Derrick Bryson Taylor, Here’s What You Need to Know About Breonna Taylor’s Death, N.Y. TIMES (Sept. 5, 2020), https://www.nytimes.com/article/breonna-taylor-police.html (examining how the death of Breonna Taylor has lead to police reform in Kentucky). 56.445 U.S. 573 (1980). 57. Payton v. New York, 445 U.S. 573, 574 (1980). 58. Payton, 445 U.S. at 575 (stating the constitutional challenge was previously left unanswered from the Court’s ruling in United States v. Watson, 423 U.S. 411 (1976)). 2021] WHAT IS A “REASON TO BELIEVE”? 331 ous lower courts had addressed the constitutional challenge, creating split precedent among jurisdictions.59 The first of the consolidated cases involved defendant Theodore Payton, who was suspected of having murdered the manager of a gas station two days prior to his arrest.60 The Court noted that after two days of intensive investigation, officers had compiled enough evidence to show probable cause but did not obtain an arrest warrant.61 Of- ficers forcibly entered Payton’s apartment intending to arrest him but found nothing but a .30-caliber shell casing that was admitted into evidence and subsequently used at trial.62 Payton later surrendered to police and was charged with murder.63 Payton moved to suppress the evidence the officers had obtained in his apartment, which was denied.64 The second of the consolidated cases arose from the arrest of Obie Riddick for two armed robberies.65 Police were informed of Riddick’s identity through one of the victims and, approximately six months

59. Compare United States v. Reed, 572 F.2d 412, 424 (2d Cir. 1978) (holding that in the absence of an arrest warrant and exigent circumstances, federal law enforcement officers are prohibited from entering a suspects home regardless of statutory authority and probable cause as it is unconstitutional), and United States v. Killebrew, 560 F.2d 729, 733-34 (6th Cir. 1977) (determining warrantless entries, whether predicated on arrests or searches, are unconstitutional unless there exists an exception), with United States v. Williams, 573 F.2d 348, 350 (5th Cir. 1978) (stating that statutes which authorize warrantless entry by officers to arrest a suspect are not unconstitutional), and United States ex rel. Wright v. Woods, 432 F.2d 1143, 1145 (7th Cir. 1970) (determining there is no constitutional constriction placed upon the states to require warrants to enter private buildings to arrest for non-violent misdemeanors). Other jurisdictions that have addressed this issue include: Arizona, California, Colorado, Massachusetts, Oregon, West Virginia, and Wisconsin. See State v. Cook, 115 Ariz. 188, 194, 564 P.2d 877, 883 (1977) (determining warrantless entries to effect arrests are unconstitutional absent exigent circumstances); People v. Ramey, 16 Cal. 3d 263, 275-76, 545 P.2d 1333, 1340-41 (1976) (same); People v. Moreno, 176 Colo. 488, 497, 491 P.2d 575, 580 (1971) (same); Commonwealth v. Forde, 367 Mass. 798, 806, 329 N.E.2d 717, 722 (1975) (determining the Fourth Amendment prohibited warrantless entries to arrest an individual in the absence of a sufficient reason for why no warrant was obtained); State v. Olson, 287 Ore. 157, 164-65, 598 P.2d 670, 674 (1979) (concluding probable cause alone does not justify warrantless entry into the home to effectuate an arrest); State v. McNeal, 162 W. Va. 550, 555-56, 251 S.E.2d 484, 488 (1978) (determining warrantless entries are unconstitutional unless exigent circumstances exist); Laasch v. State, 84 Wis. 2d 587, 595, 267 N.W.2d 278, 283 (1978) (same). 60. Payton, 445 U.S. at 576. 61. Id. 62. Id. (“[S]ix officers went to Payton’s apartment in the Bronx, intending to arrest him. They had not obtained a warrant. . . . [Officers] summoned emergency assistance and, about 30 minutes later, used crowbars to break open the door and enter the apartment.”). 63. Id. at 577. 64. Id. The trial judge denied his motion determining the New York statute authorized the entry and the seizure of evidence. Id. 65. Id. at 578. 332 CREIGHTON LAW REVIEW [Vol. 54 later, discovered Riddick’s address.66 Officers entered the home without an arrest warrant, arrested Riddick while he was in bed, and searched drawers in the bedroom which resulted in officers finding drugs and drug paraphernalia.67 Following the arrest, he was also indicted on narcotics charges.68 Both cases were appealed to the New York Court of Appeals which, in a single opinion, upheld both convictions.69 The majority relied on English common law and a historical acceptance of warrantless entries to make arrests.70 The dissent argued the U.S. Constitu- tion required officers to obtain a warrant to enter the home absent exigent circumstances.71 After granting certiorari, the Supreme Court started its analysis with a thorough examination of the history and the protections of the Fourth Amendment.72 In examining the language of the Fourth Amendment, the Court noted it applied equally to both seizures of persons and property.73 Also, the Court noted the basic principle of the Fourth Amendment made searches and seizures inside the home presumptively unreasonable.74 Ultimately, the Court determined the New York statutes were unconstitutional.75 The Court reasoned the intrusiveness of entries to search and entries to arrest share a common nexus: primarily, officers

66. Id. The victim identified Riddick in June of 1973, and officers learned of his address in January of 1974. Id. 67. Id. Riddick’s son opened the door to the house in Queens and officers could see Riddick laying in bed from the entrance. Id. Officers entered the house and placed him under arrest while searching through the bedroom. Id. 68. Id. 69. Id. at 579. 70. Id. at 581 (“The majority supported its holding by noting the ‘apparent historical acceptance’ of warrantless entries to make felony arrests, both in the English common law and in the practice of many American States.”). 71. Id. at 581-82 (“Three members of the New York Court of Appeals dissented on this issue because they believed that the Constitution requires the police to obtain a ‘warrant to enter a home in order to arrest or seize a person’ . . . [and] reason[ing] that an arrest of the person involves an even greater invasion of privacy and should therefore be attended with . . . as great a measure of constitutional protection.”). 72. Id. at 583 (“It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that moti- vated the framing and adoption of the Fourth Amendment.”). 73. Id. at 585 (“The simple language of the Amendment applies equally to seizures of persons and to seizures of property.”). 74. Id. at 586 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971)) (“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”); see also id. at 589-90 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) (“That language unequivo- cally establishes the proposition that ‘[at] the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’”). 75. Id. at 576 (“We then explain why the New York statutes are not consistent with the Fourth Amendment . . . .”). 2021] WHAT IS A “REASON TO BELIEVE”? 333 breaching an individual’s home.76 This breach, the Court noted, is the chief evil the Fourth Amendment was enacted to protect.77 Further, the Court reasoned the Fourth Amendment protects privacy interests and the unequivocal language of the Amendment puts the home at the center.78 The Court maintained that an arrest warrant may afford less protections to individuals for unreasonable searches, but it still required the magistrate’s determination of probable cause, protecting the citizen from the officer.79 The Court concluded that possession of an arrest warrant carries a limited authority to enter a suspect’s residence when there is a reason to believe the suspect is within.80

C. THE SPLIT OF AUTHORITY: EXAMINING THE VARIOUS CASES The ruling in Payton v. New York81 stated, for Fourth Amend- ment purposes, arrest warrants implicitly carry a limited authority to enter a residence in which a suspect lives when there exists a reason to believe the suspect is within.82 Courts generally analyze this language from Payton in two integrated parts: (1) whether there exists a reason to believe the location is the suspect’s residence, and (2) whether there is a reasonable belief the suspect would be within at the time of entry.83 Courts have split on what standard encompasses the reason to believe language used in Payton.84 Also, the federal courts frequently discuss the same circuit cases in dicta but disagree on the meaning of those cases’ holdings.85

76. Id. at 589 (“But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home.”). 77. Id. at 585 (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)) (“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”); see also id. (citing Boyd v. United States, 116 U.S. 616, 630 (1886)) (stating “the evil the Amendment was designed to prevent was broader than the abuse of a general warrant”). 78. Id. at 589-90 (quoting Silverman, 365 U.S. at 511). 79. Id. at 602 (“It is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen.”). 80. Id. at 603. 81. 445 U.S. 573 (1980). 82. Payton v. New York, 445 U.S. 573, 603 (1980). 83. United States v. Hill, 649 F.3d 258, 262 (4th Cir. 2011). 84. Cunningham v. Baltimore Cty, 232 A.3d 278, 675-76 (Md. Ct. Spec. App. 2020). 85. Compare United States v. Vasquez-Algarin, 821 F.3d 467, 474 (3d Cir. 2016) (stating the D.C., First, Second, and Tenth Circuits have stated that reasonable belief requires less than probable cause, while the Fifth, Sixth, Seventh, and Ninth Circuits have stated it is the equivalent of probable cause), and Hill, 649 F.3d at 263 (stating the Fifth and Eleventh Circuits have held the standards indistinguishable or that the standards are indefinite or negligible), with United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (noting the Second, Fifth, Eighth, Tenth and Eleventh Circuits have ruled that the standard is less than probable cause). 334 CREIGHTON LAW REVIEW [Vol. 54

This split is a result of the facts in Payton, which allowed the Court to bypass an elaboration on the standard.86 The split precedent established either: (1) the standard is something less than probable cause, or (2) the standard equates to probable cause.87 This Note will examine the backgrounds and facts of circuit court decisions that have definitively held either way to illuminate the varying outcomes of the application of this standard.88

1. An Examination of the Holdings and Reasonings of the Ninth Circuit Court of Appeals, the Third Circuit Court of Appeals, and the Sixth Circuit Court of Appeals that Held the Payton Reason to Believe Standard Equates to Probable Cause

In United States v. Gorman,89 the Ninth Circuit Court of Appeals addressed the Payton v. New York90 standard, holding that reason to believe embodied the same standard inherent in probable cause.91 In Gorman, police raided a third-party residence while executing an arrest warrant for the defendant, Ken Gorman.92 San Diego Police were informed the defendant was stealing mail and owned multiple vehicles that were parked by a housing complex, including a van with a couple living in it.93 Law enforcement officers testified to finding a white van thought to belong to the defendant and confronting David Ordway, who was living in the van.94 Ordway informed the officers he believed the defendant was residing with his girlfriend, Helen, at the time because he knew of the warrant out for his arrest.95 Officers did not obtain a search warrant and, based on the information provided by Ordway, arrived at the Rancho Hills Drive home

86. See United States v. Hardin, 539 F.3d 404, 410 (6th Cir. 2008) (noting that facts in Payton which showed that officers did not have an arrest warrant in the first place, led the Supreme Court to just simply reverse the judgment of the lower court and not elaborate on its ruling); Payton, 445 U.S. at 576 (determining officers must obtain an arrest warrant in order to enter the residence). 87. Compare Hardin, 539 F.3d at 416 n.6 (determining that “reason to believe” equated to probable cause), with Thomas, 429 F.3d at 286 (determining that reasonable belief means something less than probable cause because the Supreme Court used a different phrase). 88. See infra notes 89-175 and accompanying text. 89. 314 F.3d 1105 (9th Cir. 2002). 90. 445 U.S. 573 (1980). 91. United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002). 92. Gorman, 314 F.3d at 1107-08. 93. Id. at 1107. Police were informed by an unnamed citizen that a man named “Kenny” was stealing mail and that Kenny reportedly lived at the housing complex where the multiple vehicles were parked. Id. 94. Id. 95. Id. 2021] WHAT IS A “REASON TO BELIEVE”? 335 of Helen, conducting approximately one hour of surveillance.96 Police testified to identifying a vehicle that was believed to belong to the defendant but did not see the defendant enter or leave the residence.97 Helen testified that at approximately 5:30 a.m. she heard loud banging at the door and, while the door remained closed, inquired as to the identity of who was banging.98 The record indicated police identified themselves and told Helen they had an arrest warrant for Vestle An- zelmo.99 Helen inquired why she was required to open the door, and officers simply informed her they had a warrant.100 Helen opened the door and told the police no one but her mother and son were in the apartment.101 She was instructed to wait outside and police then informed her they had a warrant for Kenny Gorman.102 After multiple exchanges, police entered the apartment with guns and flashlights drawn, seized evidence, and arrested the defendant, who was asleep in the back bedroom.103 The defendant asserted his Fourth Amendment rights and made a motion to suppress the evidence seized during the arresting officers’ entry into a third-party residence without obtaining a search warrant.104 The district court initially granted the motion to suppress; however, it reversed its decision on the government’s motion to reconsider.105 Despite finding a lack of probable cause, the district court determined police had a right to invade any house they believed the defendant was residing in without probable cause.106

96. Id. at 1107-08. According to the record, four to five police officers arrived at the Rancho Hills Drive home at approximately 4:30 a.m. Id. 97. Id. at 1107. 98. Id. at 1108. Police even testified to banging on the door loudly, and police moved from the front door to the back door and knocked again. Id. 99. Id. at 1107. Testimony from Helen stated she responded that she was not dressed, and the officers had said the name Vestle Anzelmo. Id. 100. Id. 101. Id. 102. Id. Police also informed Helen that she could be arrested for harboring a federal fugitive. Id. The warrant for Kenny Gorman was based on a violation of supervised release, not for the stolen mail. Id. 103. Id. at 1108. Officers found three mailbox keys and several checks that were issued to other people. Id. 104. Id. at 1108-09. Gorman’s motion to suppress was granted because the district court had found no probable cause. Id. at 1108. The district court reasoned that officer’s knew Gorman had multiple cars, which might indicate a reasonable suspicion if one was parked outside the apartment. Id. Finally, police only knew Helen was associated with Gorman, leading the district court to hold that police did not have probable cause. Id. 105. Id. at 1109. 106. Id. (“[B]ecause of Underwood, they have a right to invade really any house where they have reason to believe . . . Mr. Gorman may be present, and that’s all they would have in this case. They clearly didn’t have probable cause.”). The district court also noted that if police had left and attempted to obtain a search warrant, a magistrate would not have granted the warrant. Id. 336 CREIGHTON LAW REVIEW [Vol. 54

The United States Court of Appeals for the Ninth Circuit, on appeal, concluded the reason to believe standard equated to probable cause, reversed the conviction, and remanded the case for further proceedings.107 The court reasoned that prior cases, including United States v. Underwood,108 did not preclude the court from requiring a probable cause standard; rather, the probable cause standard was already being utilized by the circuit.109 The court cited sister circuits, noting the phrase reasonable grounds to believe is often synonymous with probable cause.110 The United States Court of Appeals for the Third Circuit, in United States v. Vasquez-Algarin,111 came to a similar ruling as the Ninth Circuit.112 In Vasquez-Algarin, law enforcement attempted to execute an arrest warrant for Edguardo Rivera in Harrisburg, Penn- sylvania.113 Police believed Rivera was residing at a specific address based upon information obtained from another law enforcement official and street informants.114 Police knocked on the door, heard various noises and movement from inside the home and, when no one answered the door, forcibly entered the residence.115 Rivera did not live at the apartment and was not present when police forcibly entered the residence.116 Police instead found defendant, Johnny Vasquez-Al- garin, and conducted a protective sweep which turned up razor blades and what was thought to be cocaine.117 Officers obtained a search

107. Id. at 1115-16. The court reversed and remanded on the motion to suppress and affirmed on the denial of Gorman’s motion to dismiss in violation of the Speedy Trial Act. Id. 108. 717 F.2d 482 (9th Cir. 1983). 109. Gorman, 314 F.3d at 1114-15 (quoting Watts v. County of Sacramento, 256 F.3d 886, 890 (9th Cir. 2001)) (“[W]e found that ‘courts have generally required substantial evidence . . . to create a reasonable belief.’”). 110. Id. at 1113-15 (citing United States v. Cravero, 545 F.2d 406, 412 (5th Cir. 1977)) (noting probable cause is a concept of reasonableness and the “reasonable belief embodies the same standards of reasonableness but allows the officer who has already been to the magistrate to secure an arrest warrant, to determine the suspect is probably within the certain premises”); United States v. Clifford, 664 F.2d 1090, 1093 (8th Cir. 1981) (stating “Payton authorizes entry on the basis of the existing arrest warrant for the defendant and probable cause to believe that the defendant was within the premises”); see also Gorman, 314 F.3d at 1113-15 (citing Payton, 445 U.S. at 616 n.13) (White, J., dissenting) (noting a footnote by Justice White which discussed the quantum of probable cause and that it clearly equated to reasonable grounds to believe). 111. 821 F.3d 467 (3d Cir. 2016). 112. Compare United States v. Vasquez-Algarin, 821 F.3d 467, 477 (3d Cir. 2016) (determining the Payton standard equated to probable cause), with Gorman, 314 F.3d at 1116. 113. Vasquez-Algarin, 821 F.3d at 469. 114. Id. 115. Id. at 469-70. 116. Id. at 470. 117. Id. The initial sweep showed sandwich baggies, a razor blade, and powder cocaine. Id. 2021] WHAT IS A “REASON TO BELIEVE”? 337 warrant while waiting inside the residence and conducted further searches finding ammunition, stolen car keys, and items associated with drug dealing.118 Police then arrested Vasquez-Algarin, who had no outstanding arrest warrants.119 Vasquez-Algarin argued the forced entry into the home and subsequent seizure of evidence was unconstitutional and moved for suppression of evidence.120 The district court denied the motion finding police had both a reasonable belief and probable cause to enter the apartment.121 However, testimony provided by one officer at the suppression hearing changed at trial when the officer admitted he knew the address was not the address of record for Edguardo Riveria but wanted to gain consent to search the premises.122 On appeal, the defendant asserted the district court erred when denying the motion to suppress evidence because the subject of the arrest warrant used to enter the apartment did not live there.123 The Third Circuit held the motion to suppress should have been granted because the forced entry and search of the defendant’s residence was unconstitutional, reasoning that a probable cause standard was required.124 The court reasoned the United States Supreme Court’s use of the reason to believe standard in Payton and prior opinions, along with how the Supreme Court has analyzed the Fourth Amendment, supported a probable cause standard.125

118. Id. Vasquez-Algarin declined to give consent for officers to search the home. Id. The evidence collected after the search warrant was obtained was “ammunition, unused plastic bags, and hundreds of small black bands, as well as a cell phone in the master bedroom,” and keys to a stolen car that was located across the street. Id. 119. Id. 120. Id. Vasquez-Algarin and his two brothers who resided at the apartment were all charged with distribution and possession with intent to distribute cocaine and all were charged with conspiracy to do the same. Id. 121. Id. at 470-71. 122. Id. at 471. Deputy Marshal Duncan gave inconsistent answers to the question about why he had spent significant time at the door to the apartment. Id. At the hearing for the motion to suppress, Deputy Duncan testified that residents do not usually go to the door for law enforcement and waiting for some time will typically elicit a response from individuals inside the apartment. Id. At trial when asked the same question, Dep- uty Duncan testified that he knew that was not the address for Rivera and wanted to gain contact with someone inside and get consent to search the apartment. Id. 123. Id. at 472. 124. Id. 125. Id. at 477. The Third Circuit noted two reasons for the ruling: First, The Supreme Court’s use of the phrase ‘reason to believe,’ when considered in the context of Payton and more generally the Court’s Fourth Amend- ment jurisprudence, supports a probable cause standard. Second, and more fundamentally, requiring that . . . officers have probable cause . . . is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home. Id. 338 CREIGHTON LAW REVIEW [Vol. 54

The United States Court of Appeals for the Sixth Circuit, in United States v. Hardin,126 examined the Payton standard.127 In Hardin, a federal warrant was issued following a revocation of defendant Malik Hardin’s supervised release.128 The Knoxville Police De- partment obtained a tip from a confidential informant (“CI”) stating he believed Hardin was located at his girlfriend’s apartment.129 After arriving at the apartment complex, officers questioned the apartment manager who stated Hardin had not leased any apartment nor had he been seen on the property, but that a Germaine Reynolds had leased the apartment in question.130 Under false pretenses, officers enlisted the apartment manager’s assistance and asked him to enter the apartment under the guise of required maintenance.131 Hardin testified that the manager simply entered the apartment, asked a few questions, and returned to the police to inform them he was in the apartment.132 Officer’s then entered the apartment and arrested Hardin, seizing evidence that led to subsequent charges.133 Hardin filed a motion to suppress the evidence recovered because the government lacked probable cause to enter the apartment.134 The government argued probable cause was founded upon the observations of the apartment manager.135 However, Hardin argued the apartment manager was acting as an agent of the government, an argument which was rejected by the lower court; subsequently, his motion to suppress was denied and Hardin was convicted on all counts.136

126. 539 F.3d 404 (6th Cir. 2008). 127. United States v. Hardin, 539 F.3d 404, 410 (6th Cir. 2008). 128. Hardin, 539 F.3d at 407. 129. Id. The criminal informant also described a vehicle that may or may not have belonged to Hardin and which apartment he was believed to be staying in. Id. 130. Id. Only identified as “Craig,” the apartment manager was not produced by the government at trial and never testified. Id. 131. Id. Police asked the apartment manager to go see if Hardin was present. Id. 132. Id. at 407-08. The manager stipulated to Hardin and Reynolds that there was a leak in the apartment above and that he needed to check the bathroom inside the apartment. Id. 133. Id. at 408. After receiving back up, police arrested Hardin and found a gun inside the couch where Hardin was sitting. Id. Police also searched the bedroom and found a box under the bed that contained two more firearms. Police also found cocaine, marijuana, and $2,000 in cash. Id. 134. Id. 135. Id. at 408-09. 136. Id. at 418. The magistrate judge issued a report noting Hardin’s argument and stated the court had already resolved that issue relying on United States v. Howard, 752 F.2d 220 (6th Cir. 1985) and Tedder v. Raskin, 728 S.W.2d 343 (Tenn. Ct. App. 1987). Id. Hardin objected to the report where the district court issued a Memorandum and Order overruling the objections and subsequently denied the motion to suppress. Id. at 409. 2021] WHAT IS A “REASON TO BELIEVE”? 339

Despite the district court’s finding of probable cause, on appeal the government asserted probable cause was the incorrect standard, relying on United States v. Pruitt,137 which stated a lesser standard was sufficient to allow officers to enter residences.138 Hardin relied on United States v. Jones,139 which held government officials cannot enter homes without probable cause.140 The Sixth Circuit noted the conflicting case law and, rejecting both arguments, ultimately determined the officers lacked reasonable suspicion or probable cause.141 The court reasoned the district court erred in holding the apartment manager was not acting as an agent of the government at the time he entered the apartment.142 This led to the government having to prove probable cause or reasonable suspicion existed solely from the information garnered from the CI, which the Sixth Circuit ruled did not establish either.143 Although purely dicta, the court explained it believed probable cause was the correct standard.144 It reasoned the Supreme Court would not intend nor create a new standard without providing an elaboration for it.145 From the court’s viewpoint, thorough interpretation of Payton and the dissenting opinions made clear the Supreme Court was using probable cause as analogous with reasonable belief.146

137. 458 F.3d 477 (6th Cir. 2006). 138. Hardin, 539 F.3d at 410. 139. 641 F.2d 425 (6th Cir. 1981). 140. Hardin, 539 F.3d at 410. 141. Id. The court held that Pruitt did not control this case because the facts in Pruitt deemed it unnecessary to determine the issue and the wording used was pure dicta. Id. at 412-13. The court ruled that Jones did not control because the facts in Jones were a distinct scenario and the wording used was also dicta. Id. at 411-12. The court determined that neither case controlled, however the facts before the court also did not require a determination because neither standard was met. Id. 142. Id. at 417-20. The court noted the apartment manager was urged by officers to investigate the apartment which he did so lacking any reason or duty and the magistrate judge erred in the application of the two-pronged test proffered by both courts in Howard and Tedder. Id. 143. Id. at 420-21. The criminal informant was new to the officer who relied on the information, and the information provided to the officer was inconclusive and ambiguous. Id. 144. Id. at 416 n. 6. 145. Id. 146. Id. 340 CREIGHTON LAW REVIEW [Vol. 54

2. An Examination of the Holdings and Reasonings Employed by the D.C. Circuit Court of Appeals and the Tenth Circuit Court of Appeals that Held the Payton Reason to Believe Standard is Something Less than Probable Cause

The United States Court of Appeals for the D.C. Circuit squarely denounced the idea that officers needed probable cause to enter a residence to execute an arrest warrant.147 In United States v. Thomas,148 five U.S. Marshals executed an arrest warrant for Anthony Thomas for a violation of parole in a Washington D.C. apartment.149 The record stated officers knocked on the door with weapons drawn and, after the door was opened, had to subsequently chase Thomas into the living room where he was apprehended.150 After a protective sweep of the apartment, officers found firearms and ammunition inside the apartment.151 Thomas moved to suppress the evidence obtained in the apartment based on a violation of his Fourth Amendment rights, claiming the entry and protective sweep of the apartment was unconstitutional.152 An officer’s testimony at the suppression hearing was succinct, stating marshals had obtained Thomas’s address after an investigation was done and nothing more.153 The district court analyzed the facts of the case, applied a less stringent standard than probable cause, and denied the motion to suppress.154 Consequently, Thomas was convicted of possession of a firearm by a felon and sentenced to the minimum 188 months in federal prison.155

147. United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005). 148.429 F.3d 282 (D.C. Cir. 2005). 149. Thomas, 429 F.3d at 284. 150. Id. at 284-85. 151. Id. at 285. Officers found a shotgun shell and a handgun in an open closet in the bedroom. At the bottom of the closet hidden under a blanket, officers found an assault rifle and a shotgun. Id. The record stated that from the time the officers entered the apartment to the time the weapons were found, less than a minute had passed. Id. For an explanation of the types of permissible protective sweeps, see Maryland v. Buie, 494 U.S. 325, 334 (1990), noting the Supreme Court established two types of protective sweeps: the first as a precautionary matter which can be done without probable cause or reasonable suspicion and is limited to spaces immediately adjoining the location of the arrest; and the second extending beyond adjoining locations where the officers must be able to articulate facts that a danger, or individual poses a danger, to the arrest scene. 152. Thomas, 429 F.3d at 285. 153. Id.at286. 154. Id.at285. Thomas argued the evidence did not amount to or establish a reason to believe that he lived at or was present in the apartment at the time of the entry and arrest. Id. The district court reasoned that the early hours in which the arrest warrant was executed “heightened the probabilities of locating the defendant there.” Id. The district court also upheld the protective sweep because the bedroom immediately adjoined the living room where Thomas was arrested. Id. 155. Id. 2021] WHAT IS A “REASON TO BELIEVE”? 341

On appeal, Thomas asserted the district court had erred in applying a less stringent standard rather than probable cause, and, alterna- tively, the government did not produce enough evidence to meet a reasonable suspicion standard.156 The D.C. Circuit expressly held officers only need reasonable suspicion in order to enter a residence and execute an arrest warrant.157 The court reasoned the United States Supreme Court used a phrase other than probable cause simply because it meant something other than probable cause.158 The D.C. Cir- cuit also relied on a previous ruling within the circuit and found that this ruling was more consistent with how the circuit afforded protections under the Fourth Amendment.159 Ruling the government only had to meet the lower standard of reasonable suspicion, the D.C. Circuit upheld the denial of the motion to suppress.160 The court reasoned that although the testimony was succinct, the word investigation in the officer’s testimony denoted something similar to a systematic official inquiry which equates to more than a hunch.161 Thus, the government did not have to expand on details about what the investigation entailed.162 In Valdez v. McPheters,163 the United States Court of Appeals for the Tenth Circuit upheld officers’ entry and search of a residence when armed with only an arrest warrant.164 In Valdez, an FBI agent, in a concerted effort with a Bureau of Indian Affairs (“BIA”) agent, entered the home of Rosanna Valdez in LaPoint, Utah, with an arrest warrant for her son Raymond Valdez.165 Notwithstanding conflicting testimony that agents were given permission to enter and search the residence, the agents searched the residence at two different times throughout the day and failed to locate Raymond Valdez either

156. See id. at 285-86 (noting Thomas argued in the lower court the evidence did not produce enough to warrant even a reasonable belief and on appeal asserted a violation of his Fourth Amendment rights to be free from unreasonable searches and seizures). 157. Id. at 286. 158. Id. (“We think it more likely, however, that the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’”). 159. Id. 160. See id. (“Applying this standard, the entry into Thomas’ apartment was lawful.”). 161. Id. Investigation is a word that denotes more than a hunch, surmise, or suspicion and is more akin to an official inquiry. Id. The D.C. Circuit also stated Thomas’s attorneys could have questioned the officers at the hearing in order to gain more details about the investigation that resulted in finding Thomas. Id. 162. Id. (stating “the word ‘investigation,’ even without details,” means something more than just suspicion). 163. 172 F.3d 1220 (10th Cir. 1999). 164. Valdez v. McPheters, 172 F.3d 1220, 1222, 1228 (10th Cir. 1999). 165. Valdez, 172 F.3d at 1222. 342 CREIGHTON LAW REVIEW [Vol. 54 time.166 Approximately twenty days after agents searched the home, Raymond Valdez surrendered to authorities.167 Rosanna Valdez filed a complaint against the officers claiming the entry and search of her home violated her Fourth Amendment rights.168 The district court granted summary judgment in favor of the agents and the subsequent appeal followed.169 The Tenth Circuit held the entry was lawful if: (1) defendants could show there was a reasonable belief that Raymond Valdez lived at the residence, and (2) a reasonable basis existed for believing he could be found within the residence at the time of entry, equating the Payton v. New York170 standard to reasonable suspicion.171 The court reasoned that Payton proffered a two-prong test and there was no reason to believe the Supreme Court would have the test governed by two different standards of proof.172 The Tenth Circuit also reasoned that if there was a higher standard of proof required, equating it to actual knowledge, it would render Payton a dead letter, and open law enforcement up to unprecedented amounts of 42 U.S.C. § 1983 claims (commonly referred to as Bivens173 claims) by other residents.174 Ul-

166. Id. The FBI agent looked through the home while the BIA agent sat with the family. Id. After the first trip, agents were told by a third party that Raymond Valdez had been seen at the residence earlier that day. Id. 167. Id. 168. Id. 169. Id. The facts of the case showed the BIA agent, through his community outreach activities, job, and affiliation with the Indian reservation, had become well ac- quainted with the community of the Uintah-Ouray reservation by establishing personal experience. Id. at 1223. The record showed the phone number listed for Raymond Valdez matched the phone number of the residence. Id. at 1222. However, Raymond Valdez had an address listed as “transient.” Id. The BIA agent relied on a previous arrest of Raymond Valdez where he shared that he resided with his mother and other law enforcement agents in the area had relayed the same information approximately three months prior to the searches. Id. at 1223. 170. 445 U.S. 573 (1980). 171. Valdez, 172 F.3d at 1225 (quoting Payton v. New York, 445 U.S. 573 (1980)) (“[A]s to the level of knowledge required by the officers, the Supreme Court in Payton explicitly indicated that entry is permissible so long as there is ‘reason to believe the suspect is within.’”); see also United States v. Hill, 649 F.3d 258, 262 (4th Cir. 2011) (noting courts generally analyze Payton in a two-part analysis). 172. Valdez, 172 F.3d at 1225 (“[T]here is no substantial reason to believe that the standard of knowledge should be different or greater when it comes to the other prong of the Payton test, whether the suspect resides at the house. It would be curious indeed if the two prongs of the test were governed by two different standards of proof.”). 173. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens claims are claims made by private citizens against federal agents or employees who violate their constitutional rights. See generally Bivens Ac- tions, LEGAL INFO. INST., https://www.law.cornell.edu/wex/bivens_actions (last visited Nov. 1, 2020). 174. Valdez, 172 F.3d at 1225 (arguing that in the real-world people relocate often and “people do not live in individual, separate, hermetically-sealed residences”; thus, requiring a higher proof would render the holding in Payton useless). 2021] WHAT IS A “REASON TO BELIEVE”? 343 timately, the Tenth Circuit ruled it was more prudent to have both prongs of the Payton test be governed by reasonable suspicion, not probable cause.175

III. ARGUMENT

A. THE CORRECT INTERPRETATION OF PAYTON’S REASON TO BELIEVE STANDARD IS TO EQUATE IT TO PROBABLE CAUSE

The United States Supreme Court, in Payton v. New York,176 held arrest warrants implicitly carry the authority for officers to enter a residence when there is reason to believe the suspect is within.177 Courts have generally broken the analysis down into two parts: (1) whether there is reason to believe the location is the suspect’s residence, and (2) whether there is reason to believe that the suspect is within.178 Federal circuit courts have reached varying conclusions as to what standard should apply to the reason to believe language used in Payton and the two-pronged test created by the circuit courts.179 As discussed above, courts have either concluded the standard equates to the less stringent reasonable suspicion standard or have held it equates to probable cause.180 This Note argues that the correct interpretation is to equate the standard to probable cause.181 The Supreme Court routinely equates the phrases probable cause and reason to believe, often using the

175. Id. (“The better rule is that both prongs of the Payton test are governed by the same test—reasonable belief on the part of the officers. . . . Payton and Steagald cannot be understood to divide the world into residences belonging solely to the suspect on the one hand, and third parties on the other.”). 176.445 U.S. 573 (1980). 177. Payton v. New York, 445 U.S. 573, 603 (1980) (“Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”). 178. See United States v. Hill, 649 F.3d 258, 262 (2011) (noting that courts generally analyze the standard in two parts). 179. See United States v. Vasquez-Algarin, 821 F.3d 467, 474-79 (2016) (noting the split among courts and stating “a situation not presented in Payton but encompassed within the Circuit-created two-prong test”). 180. Compare United States v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009) (noting if the court were to rule on the matter, it would determine reasonable belief equated to probable cause), United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir. 2008) (determining that “reason to believe” equated to probable cause), and United States v. Gorman, 314 F.3d 1105, 1111 (9th Cir. 2002) (same), with Valdez v. McPheters, 172 F.3d 1220, 1225 (10th Cir. 1999) (determining the Supreme Court meant reasonable belief because it would not require two different burdens of proof), and United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (holding that reasonable suspicion means something less than probable cause because the Supreme Court used a different phrase). 181. See infra notes 182-86 and accompanying text. 344 CREIGHTON LAW REVIEW [Vol. 54 phrases interchangeably and to define one another.182 The Court’s history strongly indicates that probable cause is defined as reasonable grounds for belief a crime has been committed.183 Accordingly, based on the history of the Court’s interpretation of the Fourth Amendment and the protections afforded to the home, it seems logical to conclude the Payton standard was meant to afford the greatest protection known to citizens because it relates to an officer’s authority to enter a private residence.184 As shown, probable cause demands a higher standard exemplifying the protections of the Fourth Amendment established through the Court’s holdings and the U.S. Constitution’s explicit text.185 Thus, the most logical conclusion is the reason to believe language used in Payton fundamentally equates to probable cause.186 First, this Note will demonstrate the correct interpretation of Payton is probable cause by highlighting how the Supreme Court has routinely used reason to believe interchangeably with probable cause in various cases before and after its holding in Payton.187 Second, this Note will offer support for the claim that the interpretation equates to probable cause through a historical look at the protections the Su-

182. See United States v. Watson, 423 U.S. 411, 422 (1976) (noting the Model Code of Pre-arraignment Procedure’s language of reasonable cause to believe and comparing it to the standard for an arrest without a warrant, which requires analysis of police judgment about probable cause); Maryland v. Pringle, 540 U.S. 366, 371 (2003) (noting the definition of probable cause “is a reasonable ground for belief of guilt”); Berger v. New York, 388 U.S. 41, 59 (1967) (noting that the purpose of probable cause in the Fourth Amendment is to keep the government out of a specific place until there is reason to believe a crime has been committed); Maryland v. Buie, 494 U.S. 325, 332-33 (1990) (stating that the arrest warrant and probable cause to believe the defendant was in his home gave the officers a lawful right of entry). 183. See Pringle, 540 U.S. at 371 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)) (“[The Supreme Court has] stated, however, that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.’”). 184. See Payton, 445 U.S. at 589 (“In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”); United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976) (citing McDonald v. United States, 335 U.S. 451 (1948)) (stating “the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection”). 185. Compare United States v. Sokolow, 490 U.S. 1, 7 (1989) (holding that probable cause is lower than “preponderance of the evidence,” but higher than what is required for reasonable suspicion), with U.S. CONST. amend. IV (reading “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”). 186. Compare Pringle, 540 U.S. at 371 (quoting Brinegar, 338 U.S. at 175 (noting “[the Supreme Court has] stated, however, that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt’”), and Martinez-Fuerte, 428 U.S. at 562 (stating the “sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection”), with Sokolow, 490 U.S. at 7 (1989) (stating that probable cause is lower than “preponderance of the evidence,” but higher than what is required for reasonable suspicion). 187. See infra notes 192-222 and accompanying text. 2021] WHAT IS A “REASON TO BELIEVE”? 345 preme Court has afforded a citizen’s home under the Fourth Amend- ment.188 Thus, because probable cause requires a greater evidentiary showing than reasonable suspicion, the most logical conclusion adequate to reconcile the Supreme Court’s view of a private residence under the Fourth Amendment is to equate the reason to believe standard to probable cause.189 Third, this Note will argue that, because probable cause is the chief constraint on police power, public policy supports the more stringent standard as society is seemingly crying out for police reform in America.190 Finally, this Note will rebut the reasonings utilized by the circuit courts that have stated reasonable suspicion is the correct interpretation.191

1. The United States Supreme Court Uses Reason to Believe and Probable Cause Language Interchangeably A probable cause standard, as noted by the United States Su- preme Court on multiple occasions, is incapable of precise definition because of the nature of probabilities and a totality of the circumstances.192 However, the Court’s use of reason to believe language in Payton v. New York193 bears a striking resemblance to its own articulation of probable cause in many cases.194 The Court, in United States v. Watson,195 examined warrantless felony arrests based on probable cause, used the term probable cause, and cited the Model Code of Pre-arraignment Procedure, which authorized officers to take a person into custody if the officer had reasonable cause to believe the person had committed a felony.196 The Court simultaneously discussed its aversion to adopting a judicial preference of obtaining a warrant as a constitutional rule, stating the judgement

188. See infra notes 223-48 and accompanying text. 189. See infra notes 223-48 and accompanying text. 190. See infra notes 249-74 and accompanying text. 191. See infra notes 275-97 and accompanying text. 192. Illinois v. Gates, 462 U.S. 213, 232 (1983) (“[P]robable cause is a fluid concept— turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”); Brinegar v. United States, 338 U.S. 160, 175 (1949) (“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”). 193.445 U.S. 573 (1980). 194. See State v. Smith, 90 P.3d 221, 225 (2004) (“[I]ts reason-to-believe standard bears a striking parallel to the Court’s own previous articulation of the probable-cause standard.”). 195.423 U.S. 411 (1976). 196. United States v. Watson, 423 U.S. 411, 422 (1976) (finding provision § 120.1 of the Model Code of Pre-arraignment Procedure authorizes an officer to take an individual into custody if he has reasonable cause to believe the person has committed a felony, and noting the section adopted the traditional standard for arrests without a warrant). 346 CREIGHTON LAW REVIEW [Vol. 54 of Congress and the Nation has been to allow warrantless public arrests based upon probable cause.197 Reference to the Pre-arraignment Procedure and the probable cause language utilized by the Court in its analysis lends support to the notion that the terms are often used interchangeably.198 Also, in Payton, the Court specifically cited to Wat- son numerous times throughout its opinion, further supporting the stance that the Court has equated probable cause to reasonable cause to believe.199 Similarly, in Maryland v. Pringle,200 the Court examined probable cause as it related to arrests made during traffic stops.201 Throughout the opinion in Pringle, the Court uses probable cause almost exclusively when analyzing the constitutionality of the search of a car after an arrest is made during a traffic stop.202 The Court, in its discussion on the definition of probable cause, once again reiterated its inability to precisely define the phrase when reaching its ruling.203 However, the Court stated the substance of all definitions proffered by the Court for probable cause is a reasonable ground for belief of guilt.204 This entanglement of the phrases and the definition given by the Court in Pringle again supports the argument that the Supreme Court routinely uses the terms reason to believe and probable cause interchangeably.205 Further support for this position can be seen through the holding in Berger v. New York,206 where the Court surmised that a New York wiretapping statute was unconstitutional and violated the Fourth

197. Watson, 423 U.S. at 423. 198. See id. at 422-23 (discussing that Congress has adopted the Model Code of Pre- arraignment Procedure as the standard for warrantless arrests, then acknowledging that Congress has authorized warrantless arrests on probable cause). 199. See Payton v. New York, 445 U.S. 573, 574 (1980) (citing to Watson on numerous occasions). 200. 540 U.S. 366 (2003). 201. Maryland v. Pringle, 540 U.S. 366, 369 (2003). 202. Pringle, 540 U.S. at 369-71. 203. Id. at 371 (stating “[t]he probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances”). 204. Id. (quoting Brinegar, 338 U.S. at 175) (“We have stated, however, that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt . . . .’”); see also United States v. Vasquez-Algarin, 821 F.3d 467, 476 (2016) (“A close reading of the case law shows that the Supreme Court uses the ‘probable cause’ standard almost exclusively to assess the basis and strength of an officer or magistrate’s belief that a particular person has committed a particular crime . . . .”). 205. Compare Watson, 423 U.S. at 422-23 (using the phrases of the Model Code of Pre-arraignment Procedure and probable cause interchangeably), with Pringle, 540 U.S. at 371 (stating that all definitions of probable cause include a reasonable ground for belief). 206. 388 U.S. 41 (1967). 2021] WHAT IS A “REASON TO BELIEVE”? 347

Amendment.207 In the Court’s explanation on its ruling, it determined that the purpose of the phrase probable cause in the Fourth Amendment was to keep the government out of constitutionally protected areas until the government could show it had a reason to believe that a crime was being committed.208 This reasoning directly shows the Court normally equates probable cause, as it is written in the Fourth Amendment, to reason to believe.209 In the landmark case Maryland v. Buie,210 which decidedly allowed protective sweeps by officers when executing arrest warrants, the Court used the term probable cause in the context of searching a residence for a suspect.211 The Court, before discussing the rationale and standards of protective sweeps, essentially reiterated the Payton standard while using the term probable cause.212 Further, the Court cited to Terry v. Ohio213 and Michigan v. Long,214 and determined protective sweeps inherently share the same rationales that allow for the lesser reasonable suspicion standards as the stop-and-frisk and safety rationales present in Terry and Long.215 This delineation from the Court’s discussion of probable cause for officers to be entitled to search for Buie and then subsequently using reasonable suspicion standards for protective sweeps after and while making the arrest of Buie, proffers support that the Court equates the standard in Payton with probable cause.216

207. Berger v. New York, 388 U.S. 41, 44 (1967). 208. Berger, 388 U.S. at 59; see also Vasquez-Algarin, 821 F.3d at 477-78 (relying on Berger for its determination that probable cause was the correct standard). 209. See Berger, 388 U.S. at 59 (“The purpose of the probable-cause requirement of the Fourth Amendment, [is] to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed . . . .”). 210. 494 U.S. 325 (1990). 211. Maryland v. Buie, 494 U.S. 325, 332 (1990) ( “Possessing an arrest warrant and probable cause to believe Buie was in his home, the officers were entitled to enter and to search anywhere in the house in which Buie might be found.”). 212. Compare Buie, 494 U.S. at 332-33 (“Possessing an arrest warrant and probable cause to believe Buie was in his home, the officers were entitled to enter and to search anywhere in the house in which Buie might be found.”), with United States v. Hardin, 539 F.3d 404, 416 n. 6 (6th Cir. 2008) (“Had the Court truly intended the ‘reason to believe’ language in Payton to set forth a new, lesser standard, surely the Court in Buie would have explained that the officers were entitled to be inside Buie’s residence on the basis of an arrest warrant and a ‘reasonable belief’ as to Buie’s presence, but the Court used the term ‘probable cause’ instead.”). 213. 392 U.S. 1 (1968). 214. 463 U.S. 1032 (1983). 215. Buie, 494 U.S. at 332-34. 216. Cf. id. (utilizing the phrase probable cause when discussing what allows the officer to be inside the home to search for the suspect and then citing to Terry and Long to determine that the lesser standard of reasonable suspicion applies to protective sweeps). 348 CREIGHTON LAW REVIEW [Vol. 54

Support exists not only through prior cases, but through a reading of Justice White’s dissenting opinion in Payton.217 In his dissent, Jus- tice White reiterated that an officer must have reasonable grounds to believe a person is present in the house at the time of entry.218 In a footnote directly following the statement, Justice White commented that he did not disagree with the Court’s discussion of the quantum of probable cause necessary while also using probable cause and reasonable grounds to believe interchangeably.219 The footnote stated that under the ruling in Payton, officers need an additional showing of probable cause, beyond what was required to obtain the arrest warrant initially, in order to execute an arrest warrant.220 Also, Justice White directly used probable cause within his dissent when discussing the requirement for probable cause to think the suspect is within the dwelling at the time of entry.221 This lends support to the idea that Justice White believed that the Court intended and was referring to probable cause when making its ruling in Payton.222

2. The Supreme Court Affords the Home the Utmost Protection Under the Fourth Amendment and the More Stringent Probable Cause Standard is Commensurate with that Protection As previously noted, the chief evil the Fourth Amendment was enacted to protect against was the physical entry of the private home by the government.223 The revered position the home has been awarded is apparent throughout the United States Supreme Court’s history.224 The protection the home receives is comparatively

217. Payton, 445 U.S. at 616 (White, J., dissenting). 218. Id. (White, J., dissenting) (“[T]he officer entering to arrest must have reasonable grounds to believe, not only that the arrestee has committed a crime, but also that the person suspected is present in the house at the time of the entry.”). 219. Compare id. (White, J., dissenting) (using the phrase reasonable belief), with id. at 616 n.13 (elaborating on his reasoning and using the term probable cause). 220. Id. (White, J., dissenting) (stating that “under today’s decision, the officers apparently need an extra increment of probable cause when executing the arrest warrant, namely, grounds to believe that the suspect is within the dwelling”). 221. Id. at 618 (White, J., dissenting) (“Of course, the suspect may flee or hide, or may not be at home, but the officers cannot anticipate the first two of these possibilities and the last is unlikely given the requirement of probable cause to believe that the suspect is at home.”). 222. See id. (White, J., dissenting) (finding officers now need to be armed with probable cause to execute an arrest warrant shows Justice White believed the Court in the majority opinion meant the standard of probable cause). 223. Payton v. New York, 445 U.S. 573, 585 (1980); United States v. Vasquez-Al- garin, 821 F.3d 467, 479 (2016). 224. See Payton, 445 U.S. at 583-88 (noting the deep analysis on the protections afforded to the home by the Fourth Amendment before ruling on the issues of the case); Steagald v. United States, 451 U.S. 204, 220 (1981) (examining the importance of the home to the Framers and the warrants meant officers were justified in an intrusion into homes); Stephanie M. Stern, The Inviolate Home: Housing Exceptionalism in the Fourth 2021] WHAT IS A “REASON TO BELIEVE”? 349 stronger than many other areas the Amendment was enacted to protect.225 In Katz v. United States,226 the Court stated the Fourth Amendment protects people, not places, which would seem to be a divergence from placing such high regard on the home.227 However, that shift was in favor of looking toward reasonable expectations of privacy and later cases reasoned there was no greater expectation of privacy than in the home.228 Further, as noted by the Court in Silverman v. United States229 and Florida v. Jardines,230 the home has no equal in relation to the Fourth Amendment, and at the center of the Fourth Amendment is the individual’s right to find safe harbor from unreasonable intrusion within the privacy of his or her own home.231 Warrantless searches and seizures on private property, or in homes, are per se unreasonable.232 Also, the Court has noted warrantless entries on private property in order to arrest an individual, even on probable cause, is in direct fundamental conflict with the basic principles of the Fourth Amendment that have held warrantless searches per se unreasonable.233 The Court, in Payton v. New York,234 delved considerably deep into the discussion of the privacy and sanctity of the home that the

Amendment, 95 CORNELL L. REV. 905, 907 (2010) (“[H]istorically, the strong protection accorded to the home derives in part from a property-based approach to identifying protected Fourth Amendment interests.”). 225. See Stern, supra note 224, at 908 (“This does not mean that residential protection is absolute; rather it is comparatively stronger than many other search contexts.”). 226. 389 U.S. 347 (1967). 227. Katz v. United States, 389 U.S. 347, 351 (1967); see Stern, supra note 224, at 907 (noting that it appeared the Supreme Court “explicitly abandoned the property- based approach in favor” of expectations of privacy). 228. Compare Stern, supra note 224, at 907 (examining the Supreme Court’s favor of a standard that is reasonable expectations of privacy), with Payton, 445 U.S. at 587 (quoting Dorman v. United States, 435 F.2d 385, 389 (D.C. Cir. 1970)) (“Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment . . . .”), and id. at 589 (“In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home . . . .”). 229. 365 U.S. 505 (1961). 230. 569 U.S. 1 (2013). 231. See Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”); Florida v. Jardines, 569 U.S. 1, 6 (2013) (“But when it comes to the Fourth Amendment, the home is first among equals.”). 232. Katz, 389 U.S. at 357 (noting that searches done outside the judicial process are presumed unreasonable). 233. Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971) (“[T]he notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of the Fourth Amendment law . . . .”). 234. 445 U.S. 573 (1980). 350 CREIGHTON LAW REVIEW [Vol. 54

Fourth Amendment provides.235 Relying on Boyd v. United States,236 the Court noted that the principles reflected in the Amendment reach beyond the specific reasoning that lead to its enactment and apply to all invasions of the government into the sanctity of the individual’s home and the privacies of the individual.237 The Court fundamentally made the Fourth Amendment revere the home and the individual’s privacy within.238 Probable cause, while hard to define, is a more stringent standard than reasonable suspicion.239 It requires more evidentiary justification than reasonable suspicion and thus stands as a stronger barrier between citizens and law enforcement.240 As noted above, probable cause is the chief constraint on police power in America.241 The Supreme Court has also stated that private homes receive the most stringent Fourth Amendment protection.242 In United States v. Martinez-Fuerte,243 the Court compared the expectations of privacy between motorists at a fixed checkpoint and an individual’s home.244 The Court stated that homes are ordinarily afforded the most stringent protections.245 The expectation of privacy within one’s home is vastly different from other traditional notions of privacy.246 Allowing

235. Payton, 445 U.S. at 584-86. 236.116 U.S. 616 (1886). 237. Payton, 445 U.S. at 585 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). 238. Compare Silverman, 365 U.S. at 511 (“At the very core [of the Fourth Amend- ment] stands the right of a man to retreat into his own home . . . .”), Jardines, 569 U.S. at 7 (determining the home has no equal under the Fourth Amendment), and Payton, 445 U.S. at 589 (stating that the zone of privacy is the most clearly defined in the unambiguous dimensions of the home), with Katz, 389 U.S. at 351 (stating the Fourth Amend- ment protects people not places). 239. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (stating that probable cause is lower than “preponderance of the evidence,” but higher than what is required for reasonable suspicion); Ornelas v. United States, 517 U.S. 690, 695 (1996) (determining that precisely defining probable cause and reasonable suspicion is not possible). 240. See Alabama v. White, 496 U.S. 325, 330 (1990) (stating the two standards are established by information that is different in quantity and content). 241. See Crespo, supra note 22, at 1279 (citing Dunaway v. New York, 442 U.S. 200, 213 (1973)) (describing that the core of the Fourth Amendment is the probable cause standard); Weeks v. United States, 232 U.S. 383, 391-92 (1914) (“The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects against all unreasonable searches and seizures under the guise of law.”). 242. United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976) (citing McDonald v. United States, 335 U.S. 451 (1948)) (stating the “sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection”). 243.428 U.S. 543 (1976). 244. Martinez-Fuerte, 428 U.S. at 561-62. 245. Id. at 561. 246. Id. 2021] WHAT IS A “REASON TO BELIEVE”? 351 officers to enter a private residence to execute an arrest warrant based on a less stringent standard is in direct conflict with how the Court has afforded protections under the Fourth Amendment.247 Thus, because the home has been given an elevated position seemingly above the other enumerated protections in the Fourth Amendment, the only effective way to logically reconcile this is to equate the Payton standard to probable cause.248

B. PUBLIC POLICY STRONGLY SUPPORTS A PROBABLE CAUSE STANDARD

Public policy necessitates the more stringent probable cause standard.249 A probable cause interpretation of Payton v. New York250 protects citizens from being susceptible to unreasonable intrusions based on mere suspicion and unverifiable information.251 Probable cause is the determining factor of what is and what is not a legal search.252 It has been identified as a constraint on police power in America.253 In America’s current social climate and with the demands for police reform across the nation, requiring probable cause before law enforcement enter a home to execute an arrest warrant

247. See United States v. Vasquez-Algarin, 821 F.3d 467, 477 (3d. Cir. 2016) (“[R]equiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.”). 248. Compare Vasquez-Algarin, 821 F.3d at 477 (“[R]equiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.”), with Jardines, 569 U.S. at 7 (“But when it comes to the Fourth Amendment, the home is first among equals.”). 249. Compare Bell, supra note 55 (noting there is a vast movement for police reform in America), with Weeks v. United States, 232 U.S. 383, 391-92 (1914) (“[T]he effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people . . . .”). 250. 445 U.S. 573 (1980). 251. Compare United States v. Sokolow, 490 U.S. 1, 7 (1989) (stating that probable cause is lower than “preponderance of the evidence,” but higher than what is required for reasonable suspicion), with United States v. Vasquez-Algarin, 821 F.3d 467, 480 (2016) (noting a lower standard would render homes susceptible to search by mere suspicion). 252. See Crespo, supra note 22, at 1279 (quoting Carroll v. United States, 267 U.S. 132, 156 (1925)) (“[Probable Cause] is ‘the line of distinction’ between legal and illegal searches and seizures.”). 253. See id. at 1279 (citing Dunaway v. New York, 442 U.S. 200, 213 (1979)) (“[Prob- able cause] constitutes the core substantive constraint on police power in the United States.”). 352 CREIGHTON LAW REVIEW [Vol. 54 may afford constitutional protections citizens are looking for and are guaranteed.254 Protests have increasingly gripped America, driving the country to climacterical point.255 Police reform and racial equality have become the cornerstones of these protests and movements.256 The Black Lives Matter movement, which originated after the shooting of Trayvon Martin in 2013, has been at the forefront of these protests.257 Regardless of political views or affiliations, the movement and protests have renewed the discussion of police reform.258 Cities across America have started to implement policy and budgeting changes to their police departments.259 Also, it has been suggested that when police practices are procedurally sound, society is more open to cooper- ation with police which allows law enforcement officers to conduct their job more efficiently.260 Thus, requiring a higher standard of probable cause is not only more in line with the guarantees of the Fourth Amendment, it may also simultaneously increase the effective- ness of law enforcement.261 One notable change in police reform occurred in Louisville, Ken- tucky when the City Council passed a law in honor of Breonna Taylor banning no-knock warrants.262 On March 13, 2020, Breonna Taylor was shot five times by officers executing a search warrant, because it was believed that an ex-boyfriend, a known associate, had used her apartment to distribute drugs.263 The police had been investigating two men they believed were selling drugs far from Ms. Taylor’s resi-

254. Compare Bell, supra note 55, at 2058 (stating that “[t]he Black Lives Matter era has catalyzed meaningful discussion about the tense relationship between the police and many racially and economically isolated communities, and about how policing can be reformed”), with Payton v. New York, 445 U.S. 573, 602 (1980) (noting “it is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen”). 255. Pereira, supra note 55. 256. Id. (commenting that protests following the death of George Floyd have sparked large scale police reform in major cities across the nation); see also Bell, supra note 55, at 2058 (noting there are vast movements spurred by the need for police reform and racial equality). 257. Patel, supra note 55, at 793. 258. Id. 259. Pereira, supra note 55 (noting the various cities across America that have started to implement police reforms). 260. See Patel, supra note 55, at 802. 261. Compare Vasquez-Algarin, 821 F.3d at 477 (“[R]equiring that law enforcement officers have probable cause . . . is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.”), with Patel, supra note 55, at 802 (“[I]n sum, when police processes are perceived as procedurally just, communities are more likely to cooperate with the police, and policing, in turn, is more effective.”). 262. Oppel Jr. & Taylor, supra note 55. 263. Id. 2021] WHAT IS A “REASON TO BELIEVE”? 353 dence.264 The judge had signed an arrest warrant for the ex-boyfriend and a search warrant for Ms. Taylor’s apartment because of that connection to her ex-boyfriend.265 The issued search warrant subsequently lead to her death when police broke through her apartment door and opened fire after being fired upon by her current boyfriend, who claimed he mistook the officers for an intruder.266 While the facts that culminated in the death of Ms. Taylor do not strictly correlate to the circumstances surrounding the cases discussed, the United States Supreme Court has mentioned the potential for abuse when law enforcement officers independently justify the search of a third-party for the subject of an arrest warrant.267 If instead the police were attempting to execute the arrest warrant for the ex-boyfriend, a lesser standard of reasonable suspicion may have allowed the police to enter the apartment under those pretenses.268 Allowing a less stringent standard effectively gives law enforcement free reign to conduct searches on any third-party suspected to be an acquaintance of an individual wanted for arrest.269 The arrest warrant, which requires probable cause, authorizes officers to deprive an individual of his or her personal liberty.270 Axiomatically, that authority carries with it a limited invasion of the person’s privacy interest.271 As the Court held in Steagald v. United States,272 that analysis is incompatible when the officers use the arrest warrant to

264. Id. 265. Id. 266. Id. The boyfriend fired one shot at police, injuring one officer. In response, an officer blindly fired ten rounds into the apartment. Id. Breonna Taylor’s boyfriend was charged with attempted murder; the charge was later dismissed. Id. 267. See Steagald v. United States, 451 U.S. 204, 215 (1981) (examining that when acting alone and in the absence of exigent circumstances, police may decide there is justification to search a third-party residence and this would be open to significant potential for abuse). 268. Compare Oppel Jr. & Taylor, supra note 55 (discussing the facts behind the death of Breonna Taylor), with Vasquez-Algarin, 821 F.3d at 480 (stating that a lesser standard would render private homes susceptible to search by grounds of mere suspicion). 269. Cf. Vasquez, 821 F.3d at 480 (“A laxer standard would effect an end-run around the stringent baseline protection established in Steagald and render all private homes—the most sacred of Fourth Amendment spaces—susceptible to search by dint of mere suspicion or uncorroborated information and without the benefit of any judicial determination.”). 270. See Steagald, 451 U.S. at 214 n.7 (1981) (noting “an arrest warrant authorizes the police to deprive a person of his liberty”). 271. See id. (“Because an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person’s privacy interest when it is necessary to arrest him in his home.”). 272. 451 U.S. 204 (1981). 354 CREIGHTON LAW REVIEW [Vol. 54 search third-party residences.273 Allowing a lesser standard effectively allows officers to transform an arrest warrant into a search warrant for third-party residences based on mere suspicions.274

C. A REBUTTAL OF THE REASONINGS THE CIRCUIT COURTS HAVE UTILIZED TO EQUATE THE PAYTON V. NEW YORK STANDARD TO REASONABLE SUSPICION The D.C. Circuit Court of Appeals in United States v. Thomas275 essentially held that the standard proffered in Payton v. New York276 was something other than probable cause simply because the United States Supreme Court did not use probable cause.277 No merit exists in that stance as the Court routinely uses the phrases interchangeably.278 The rulings Justice White expounded upon clearly show the Court was using reason to believe as probable cause and vice versa.279 If the Court had intended to create a new standard, or desired a standard less than probable cause, the Court would have elaborated on the subject.280

273. Steagald, 451 U.S. at 214 n.7 (1981) (“This analysis, however, is plainly inap- plicable when the police seek to use an arrest warrant as legal authority to enter the home of a third party to conduct a search.”). 274. Compare Steagald, 451 U.S. at 215 (noting that police acting alone deciding that there is justification to search a third-party residence is open to significant abuse), with Vasquez-Algarin, 821 F.3d at 480 (determining the laxer standard would end the stringent baseline in Steagald and would make all private homes open to search by mere suspicion). 275.429 F.3d 282 (2005). 276.445 U.S. 573 (1980). 277. United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (“We think it more likely, however, that the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’”). 278. Compare Thomas, 429 F.3d at 286 (establishing the Supreme Court meant something other than probable cause because they used something other than probable cause), with Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Brinegar v. United States 338 U.S. 160 (1949)) (“We have stated, however, that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.’”), Maryland v. Buie, 494 U.S. 325, 332-33 (1990) (stating an arrest warrant and probable cause gave officers a lawful right of entry; however, the court then cited to Terry and Long which both used reasonable belief), Payton v. New York, 445 U.S. 573, 616 n.13 (1980) (White, J., dissenting) (using reasonable ground for belief and probable cause interchangeably), and United States v. Vasquez-Algarin, 821 F.3d 467, 476 (2016) (“A close reading of the case law shows that the Supreme Court uses the ‘probable cause’ standard almost exclusively to assess the basis and strength of an officer or magistrate’s belief that a particular person has committed a particular crime . . . .”). 279. See Payton, 445 U.S. at 616 n.13 (White, J., dissenting) (“The Court indicates that only an arrest warrant, and not a search warrant, is required. To obtain the warrant, therefore, the officers need only show probable cause that a crime has been committed and that the suspect committed it. However, under today’s decision, the officers apparently need an extra increment of probable cause when executing the arrest warrant, namely, grounds to believe that the suspect is within the dwelling.”). 280. See United States v. Hardin, 539 F.3d 404, 416 n.6 (6th Cir. 2008) (citing Buie, 494 U.S. at 330-33) (“Had the Court truly intended the ‘reason to believe’ language in 2021] WHAT IS A “REASON TO BELIEVE”? 355

The argument asserted by the Tenth Circuit in Valdez v. McPheters281 was two-fold.282 First, the court found there was no substantial reason to think the two-prong test, which included the reason to believe the dwelling is the suspect’s residence and the reason to believe the suspect is within, applied two different standards.283 Sec- ond, the court equated a higher standard to mean actual knowledge and not probable cause, and this higher standard would make officers more vulnerable to 42 U.S.C. § 1983 claims.284 Equating reason to believe with probable cause does not indicate that the standard of proof would be different for either prong under the circuit-created two- prong test.285 Therefore, it would just read: (1) officers need to show probable cause to believe that is the suspect’s residence, and (2) officers need probable cause to believe the suspect is within.286 Equat- ing reason to believe to probable cause still maintains a congruent standard across both prongs; it would not just alter one of the reasons to believe.287 Also, it must be reiterated that the two-prong test is a circuit court creation and the Court in Payton stated an arrest warrant based on probable cause carries the authority to enter a residence

Payton to set forth a new, lesser standard, surely the Court in Buie would have explained that the officers were entitled to be inside Buie’s residence on the basis of an arrest warrant and a ‘reasonable belief’ as to Buie’s presence, but the Court used the term ‘probable cause’ instead.”). 281. 172 F.3d 1220 (10th Cir. 1999). 282. Valdez v. McPheters, 172 F.3d 1220, 1225 (10th Cir. 1999) (noting the two arguments were: (1) there is no substantial reason Payton would be governed by two different tests; and (2) requiring actual knowledge would be impracticable). 283. Valdez, 172 F.3d at 1225 (“There is no substantial reason to believe that the standard of knowledge should be different or greater when it comes to the other prong of the Payton test, whether the suspect resides at the house. It would be curious indeed if the two prongs of the test were governed by two different standards of proof.”) 284. Id. (“More importantly, requiring actual knowledge of the suspect’s true residence would effectively make Payton a dead letter. Requiring that the suspect actually reside at the residence entered would mean that officers could never rely on Payton . . . and that Bivens or a 42 U.S.C. § 1983 claim would then be made against them by another resident.”). 285. Cf. Vasquez-Algarin, 821 F.3d at 472 (“[T]he Courts of Appeals have drawn upon the Supreme Court’s language to develop a two-prong test that extends to residency . . . .”). 286. Compare Vasquez-Algarin, 821 F.3d at 472 (stating “the officer must have a ‘reasonable belief’ that (1) the arrestee resides at the dwelling, and (2) the arrestee is present at the time of the entry”), and United States v. Hill, 649 F.3d 258, 262 (2011) (“Generally, circuits have broken the analysis of whether the entry was lawful into two conjunctive parts: (1) whether there is reason to believe that the location is the defendant’s residence, and (2) whether or not there was a ‘reasonable belief’ that he would be home”), with Valdez, 172 F.3d at 1225 (determining there was no substantial reason to believe the two-prongs would have different standards). 287. Cf. Vasquez-Algarin, 821 F.3d at 472 (noting that “[t]he Courts of Appeals have drawn upon the Supreme Court’s language to develop a two-prong test that extends to residency” and implying that, if that phrase as a whole is equated to probable cause, then logically it would change both times the phrase is used). 356 CREIGHTON LAW REVIEW [Vol. 54 when there is reason to believe the suspect is within.288 Equating reason to believe to probable cause under Payton is still just one standard.289 Arguably, the circuit courts only use the two standards when they create and apply two standards under their general analysis.290 The Tenth Circuit also reasoned the higher standard would require actual knowledge.291 The Tenth Circuit correctly noted that an actual knowledge standard would be impractical because individuals relocate often, and the modern form of residences are not hermetically sealed.292 However, courts have never equated probable cause to actual knowledge.293 Probable cause is just a higher standard of proof than reasonable suspicion, but still falls short of preponderance of the evidence at fifty percent, falling significantly short of one-hundred percent certainty.294 Holding that the Payton ruling fundamentally equates to probable cause is more in line with how the Supreme Court has utilized the phrases throughout its history.295 Examinations of the Court’s prior holdings show the home has no equal regarding the protections af-

288. Compare Hill, 649 F.3d at 262 (stating that circuit courts have broken the analysis into two conjunctive parts), with Payton, 445 U.S. at 603 (“Thus, for Fourth Amend- ment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”). 289. Cf. Payton, 445 U.S. at 603 (stating the phrase “reason to believe” only once implies the court only applied one standard and if that standard was probable cause then it would be probable cause throughout). 290. See Vasquez-Algarin, 821 F.3d at 472 (stating “the officer must have a ‘reasonable belief’ that (1) the arrestee resides at the dwelling, and (2) the arrestee is present at the time of the entry); see also Hill, 649 F.3d at 262 (“Generally, circuits have broken the analysis of whether the entry was lawful into two conjunctive parts: (1) whether there is reason to believe that the location is the defendant’s residence, and (2) whether or not there was a ‘reasonable belief’ that he would be home.”). 291. Valdez, 172 F.3d at 1225 (“More importantly, requiring actual knowledge of the suspect’s true residence would effectively make Payton a dead letter.”). 292. Id. (“In the real world, people do not live in individual, separate, hermetically- sealed residences. They live with other people, they move from one residence to another.”). 293. Vasquez-Algarin, 821 F.3d at 474. 294. See Hill, 649 F.3d at 274 (Agee, J., dissenting) (“[N]o court applying [Payton] has ever held, that the police must have seen the defendant nearby or have actual knowledge that he is inside a residence before they can enter.”); McCauliff, supra note 21, at 1303 (“‘Preponderance of the evidence,’ when described in terms of percentages, is set at fifty percent to indicate that a quantum over fifty percent constitutes a preponderance.”). 295. See Pringle, 540 U.S. at 371 (quoting Brinegar, 338 U.S. at 175) (“We have stated, however, that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt’ . . . .”); Buie, 494 U.S. at 332-33 (1990) (citing Terry and Long after essentially reiterating the standard in Payton while using the term probable cause); Payton, 445 U.S. at 616 n.13 (White, J., dissenting) (noting the quantum of probable cause necessary then using reasonable grounds for belief and using the terms interchangeably); Vasquez-Algarin, 821 F.3d at 476 (“A close reading of the case law shows that the Supreme Court uses the “probable cause’ standard almost exclusively to 2021] WHAT IS A “REASON TO BELIEVE”? 357 forded under the Fourth Amendment.296 The higher standard required by probable cause is more consistent and commensurate with the protections of the home, the Fourth Amendment, and the history of the Court.297

IV. CONCLUSION The Fourth Amendment was enacted to protect the people of the United States from unreasonable governmental intrusions. The Amendment put limitations and restraints on the government and law enforcement in the exercise of their powers, in order to protect individuals. At no place is this protection more celebrated than an individual’s home. The right of an individual to retreat into the sanctity of his or her own home should never be abandoned. The United States Supreme Court, in Payton v. New York,298 held that warrantless entries into the home in order to make arrests were unconstitutional. In the same breath, the Court held that arrest warrants hold an implied limited authority for officers to enter the home when there is a reason to believe that the suspect is within the home.299 Federal and state courts have disagreed as to what standard was explicated by the Court in its holding in Payton. Through examination of the Court’s use of the phrase, it is clear the Court routinely uses the two phrases interchangeably and often uses the phrases to define one another. The venerated position the home receives under the Fourth Amendment shows a logical deduction that probable cause was intended by the Court in Payton and should be the standard that is utilized in all jurisdictions. Interpreting reason to believe to anything less than probable cause does not afford private citizens the protections commensurate with the Fourth Amendment. Public policy also necessitates the higher standard of probable cause. Holding law enforcement accountable starts by requiring higher standards. Allowing a lesser standard is not what society is seeking through the on-going protests and demonstrations. There ex-

assess the basis and strength of an officer or magistrate’s belief that a particular person has committed a particular crime . . . .”). 296. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976) (noting that private dwellings are “ordinarily afforded the most stringent Fourth Amendment protection”). 297. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (stating that probable cause is lower than “preponderance of the evidence,” but higher than what is required for reasonable suspicion); see also Vasquez-Algarin, 821 F.3d at 477 (“[R]equiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.”). 298.445 U.S. 573 (1980). 299. Payton v. New York, 445 U.S. 573, 603 (1980). 358 CREIGHTON LAW REVIEW [Vol. 54 ists a significant potential for abuse of police power when lesser standards are employed in examining the actions of the government. Thus, because of the verbiage of the Court throughout its history, the protections afforded to the home, and because there exists a public necessity, the correct interpretation from Payton is to equate the language used to probable cause.

-Robert Norton, ’22*

* I want to thank Natalie Kozel as I could not have asked for a better lead spader, expert on the grammatical rules of commas, or colleague through the spading process. I would also like to thank my sister, Elizabeth Norton, for the time, assistance, and random phone calls you endured as I pieced this Note together.