Wake Forest Law Review

By Jon McLamb

The United States Supreme Court is deciding whether to hear a case with significant ramifications on First Amendment religious freedom.  This time, however, a decision will come in direct conflict with local and state anti-discrimination laws that prevent businesses from discriminating on the basis of an person’s sexual orientation.

The case, Arlene’s Flowers, Inc. v. Washington, involves a private florist in Washington who refused to make a flower arrangement for a same-sex couple’s wedding.[1]  The business owner cited her religious beliefs against same-sex marriage as her reason for the refusal.[2]  The florist argued that she was entitled to refuse because providing services to a same-sex marriage ceremony would offend her religious beliefs so, therefore, she was protected under the First Amendment right to religious freedom.[3]  The couple and the state believed that the florist had violated both local and state anti-discrimination laws by denying the couple’s request.[4]  As a result of this conflict, the state filed a lawsuit on the couples’ behalf seeking injunctive and other relief.[5]

The case first reached the United States Supreme Court in June 2018.[6]  In that instance, the Court remanded the case back to the Washington state courts to address the case in light of its decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which was decided that same month.[7]  In Masterpiece Cakeshop, the Court held that a business owner’s religious freedom was violated when the business owner received penalties for refusing to sell a wedding cake to a same-sex couple.[8]  The Court reasoned that the business owner deserved a neutral decisionmaker under the First Amendment that would give full and fair consideration to his religious beliefs against same-sex marriage.[9]

The Washington State Supreme Court subsequently re-decided the case on remand from the United States Supreme Court.[10]  Applying the United States Supreme Court’s decision in Masterpiece Cakeshop, the Washington Supreme Court unanimously ruled against the florist.[11]  The Washington Supreme Court reasoned that there is no exception to the public accommodation statutory requirement for religious beliefs, and the florist was therefore required to accommodate the same-sex couple’s request for a flower arrangement.[12]  The Court found that the Masterpiece Cakeshop framework required a neutral analysis that involved looking into both the religious freedom of the First Amendment and the anti-discrimination statutes currently enacted in the State of Washington.[13]

Following the decision of the Washington Supreme Court, the florist petitioned the United States Supreme Court for a writ of certiorari.[14]  In the petition, the florist argued that her First Amendment right to freedom of religion would be infringed if Washington penalized her following her beliefs and not serving the couple.[15]  In arguing this point, the florist contended that the holding of the Washington Supreme Court is in direct conflict with the decision in Masterpiece Cakeshop because her refusal to serve the couple is protected expressive freedom protected under that case and other United States Supreme Court precedent.[16]

Both the State of Washington and the couple filed responses to the florist’s petition for writ of certiorari. The State of Washington argued that the florist’s contention that she was “participating in the wedding ceremony” if she served the couple a flower arrangement is highly misleading, because simply providing a service to the couple is not the same as participating in the ceremony.[17]  Additionally, Washington argued that its supreme court’s decision does not violate United States Supreme Court precedent, but actually follows the current law by neutrally addressing both the religious freedom of the florist and the right to be free from discrimination of the couple.[18]  Further, Washington contended that there is not a violation of United States Supreme Court precedent just because the Washington Supreme Court disagreed that the florist had a protected right that outweighs the right of the couple in this instance.[19]

The couple’s brief in response to the florist’s petition for writ of certiorari addressed the same arguments as Washington’s brief in opposition.[20]  Like Washington, the couple opined that the Washington Supreme Court’s decision did not conflict with United States Supreme Court case law and did not force the florist to participate in their wedding ceremony.[21]  The one major difference, however, is that the same-sex couple focused on their right to equal access that protected them against discrimination as opposed to the state’s brief, which focused on the florist’s lack of protected right to religious freedom.[22]

Several different interest groups filed amicus briefs in support of the petition for writ of certiorari.  These groups include mostly conservative, religious, and constitutional scholars.  In essence, their arguments addressed the right of the florist to refuse service to a same-sex couple under the First Amendment’s right to freedom of religion.

Because many interest groups have voiced their concerns about the Washington Supreme Court’s decision, the United States Supreme Court is likely to grant certiorari.  The Supreme Court may also grant certiorari to resolve the direct conflict between two protected interests: the right to religious freedom and the right of same-sex couples to be free from discrimination on account of sexual orientation.  The likelihood of granting certiorari is also higher because the Supreme Court heard this case at an earlier date but did not resolve the dispute. 

This case presents an opportunity for the United States Supreme Court to address issues not reached in the Masterpiece Cakeshop decision. Many in the legal profession believe that the Masterpiece Cakeshop decision rendered a narrow holding that protected only the religious rights of the individual business owner in that circumstance. Therefore, the Court may take this opportunity to expand that holding to protect all business owners with similar religious beliefs.  On the flip side, the Court could use this opportunity to distinguish the cases and limit the Masterpiece Cakeshop’s holding, giving a win to members of the LGBT community who continue to fight for their Constitutional rights, even after the landmark decision of Obergefell v. Hodges.[23]  The Court will likely make a decision whether to grant certiorari in the next few weeks, and the disposition of the case will have significant impact on American citizens, one way or another.

[1] See 187 Wash.2d 804 (2017).

[2] See id. at 816–17.

[3] See id. at 818.

[4] See id. at 818–19.

[5] Id.

[6] 138 S.Ct. 2671 (2018).

[7] 138 S.Ct. 1719 (2018).

[8] Id. at 1724.

[9] Id. at 1732.

[10] State v. Arlene’s Flowers, Inc., 193 Wash.2d 469 (2019).

[11] Id. at 507–08.

[12] Id. at 508.

[13] Id.

[14] Petition for Writ of Certiorari, Arlene’s Flowers (2019).

[15] Id. at i.

[16] Id. at 26.

[17] State’s Brief in Opposition, Arlene’s Flowers, at11–14 (2019).

[18] Id. at 25–35.

[19] Id. at 26–27.

[20] See generally Brief of Respondents, Arlene’s Flowers (2019).

[21] Id.

[22] Compare Brief of Respondents, Arlene’s Flowers (2019) (addressing whether florist can deny same-sex couple’s equal access to flower arrangement services) with State’s Brief in Opposition, Arlene’s Flowers (2019) (addressing whether freedom of religion allowed florist to deny public accommodation to same-sex couple).

[23] 135 S.Ct. 2584 (2015).

By Olivia Rojas

On November 5, 2018, the United States Department of Justice filed a petition for writ of certiorari before judgment from the Supreme Court of the United States asking the court to review three cases from different circuits relating to the Deferred Action for Childhood Arrivals program (“DACA”).[1] These cases, DHS v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal (collectively “Consolidated Cases”), directly addressed the validity of the Trump Administration’s attempt to halt DACA, and in June of 2019, the Court granted certiorari.[2]

On November 12, 2019, the Court heard oral arguments regarding the future of DACA. In reviewing the Consolidated Cases, the Court is asked to analyze two questions (1) whether the “phasing out” of the DACA program is eligible for judicial review in the first place and (2) whether the termination of the DACA program is legal.[3]

In June of 2012, former Secretary of Homeland Security Janet Napolitano submitted plans for an administrative program which would allow a select group of undocumented individuals who were born outside of the United States but immigrated as juveniles, to apply for deferred action.[4]  These individuals have since been referred to as Dreamers.[5] Deferred action refers to the ability of a federal immigration judge or an agent with the United States Citizenship and Immigration Service to postpone the deportation of an individual as an act of discretion.[6] While deferred action does not adjudicate an individual as a “lawful” citizen, it awards that individual the status of “lawfully present” during the deferral period.[7] Under Napolitano’s plan, individuals were able to apply for a deferral with the potential for work authorization and the option to renew if a request was granted.[8] Unable to gain enough support for the program in Congress, then-President Barack Obama adopted the DACA plan by executive memorandum.[9] Since its establishment, nearly 800,000 people have deferred their pending deportations.[10]

Under the initial plan for DACA, people could apply for deferred action if: (1) they came to the United States before their 16th birthday; (2) they were 31 years old or younger; (3) they uninterruptedly resided in the United States since June 15, 2007; and (4) they were currently in school, graduated school, had a certificate of completion from a high school, had a General Educational Development (“GED”) Certificate, or were an honorably discharged veteran of the United States Coast Guard or Armed Forces.[11] Persons convicted of a felony, a “significant misdemeanor,” or three or more other misdemeanors were ineligible.[12] Additionally, if an applicant had “lawful status” on June 15, 2012, they were also ineligible.[13]

Following the inauguration of President Trump, then-Attorney General Jeff Sessions wrote a letter to the Department of Homeland Security, expressing his concern over the broad reach of the program. Essentially, Sessions argued that the program lacked the necessary statutory authority, had no end date, and lacked support from Congress. Sessions argued it was an “unconstitutional exercise of authority.”[14] Subsequently, then-Homeland Security Secretary Kjersten Nielsen issued a memorandum which sought to rescind DACA and set forth a method for “phasing out” the program in its entirety.[15] The Administration planned to stop accepting new applications and began to only process renewals for those DACA recipients whose status expired before March 5, 2018.[16] 

The Arguments

Can the Court even review this matter?

In a brief submitted to the Court, the government contested that its termination of DACA is not judicially reviewable.[17] While lower courts ruled that the termination was “arbitrary and capricious,” the Administration argued that the Court could not review this standard if the termination was a form of permissible discretion under the Administrative Procedure Act.[18] The Administrative Procedure Act identifies the processes in which federal agencies may develop and enforce regulations.[19] As such, the government argued that it possesses the discretion to terminate DACA.  

The challengers in the Consolidated Cases argue, however, that this issue is a perfect example of what the Court can review, and one that has been reviewed in the past.[20] Further, the challengers maintain that even if their first argument failed, the Court has the power to review the matter because the Administration argued its reasoning for termination was the illegality of DACA as a whole.[21]

In oral argument, the Administration again argued that its termination of DACA was not reviewable because it was a discretionary decision, even though it also argued the DACA program was illegal. Justice Ruth Bader Ginsburg questioned this argument: if the Administration reasoned that it terminated DACA because the program was illegal, it would not be a matter of discretion, but a legal one, and therefore clearly within the purview of the Court.[22] Justices Samuel Alito and Neil Gorsuch were less skeptical of this argument: where was the line between reviewable and non-reviewable decisions?[23]

Is the termination of DACA legal?

Relying on the Fifth Circuit’s decision to strike the Deferred Action for Parents of Americans (“DAPA”) and an expanded DACA program, the Administration, in its brief, reasoned that the implementation of DACA in the first place was “highly questionable” [24] and “an ongoing violation of federal immigration law.”[25] The challengers, on the other hand, argued that if terminating DACA was of incredible importance, the Administration would not have waited seven months before attempting to terminate the program.[26] Further, they argued that anticipation of potential litigation is not sufficient enough to justify the termination of DACA and doing so would undermine nearly every agency decision to date.[27] Finally, the challengers highlighted the public policy implications for terminating the program, including the displacement of hundreds of thousands of people who are actively working and studying in the United States.[28]

In oral argument, the parties conceded to the fact that the Administration had the authority to terminate DACA.[29] As a result, the Court was asked to review the method in which the Administration terminated DACA, rather than if it could terminate DACA.[30] The argument appeared to break down along traditional conservative-liberal lines, although commentators noted that many justices appeared “torn” and it was unclear how the case would ultimately be decided.[31]

The holding in these Consolidated Cases is expected to be released in June 2020.[32] While the future of DACA remains unclear until then, various district court injunctions prevent the complete cessation of the DACA program prior to a decision.[33] While the Administration does not foreshadow a mass deportation should DACA be eliminated,[34] the loss of the program would immediately strip recipients and potential applicants of their rights to work, attend school, and even drive.[35]

[1]Amy Howe, Argument Preview: Justices to Review Dispute over Termination of DACA, SCOTUSBlog (Nov. 5, 2019, 5:02 PM), https://www.scotusblog.com/2019/11/argument-preview-justices-to-review-dispute-over-termination-of-daca/.

[2] Id.

[3] Deferred Action Basics, Nat’l Immigr. F. (Apr. 15, 2016), https://immigrationforum.org/article/deferred-action-basics/; Amy Howe, Symposium: Justices to Review Dispute Over Termination of DACA, SCOTUSBlog (Sept. 10, 2019, 3:06 PM), https://www.scotusblog.com/2019/09/symposium-justices-to-review-dispute-over-termination-of-daca/

[4] Deferred Action for Childhood Arrivals (DACA), Homeland Security, https://www.dhs.gov/deferred-action-childhood-arrivals-daca (last updated Sept. 23, 2019).

[5] What is DACA and Who Are the DREAMers, Anti-Defamation League, https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-who-are-the-dreamers (last updated Oct. 17, 2019).

[6]Deferred Action Basics, supra note 3.

[7] Id.

[8] Id.

[9] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[10] Caitlin Dickerson, What Is DACA? And How Did It End Up in the Supreme Court?, N.Y. Times (Nov. 12, 2019), https://www.nytimes.com/2019/11/12/us/daca-supreme-court.html.

[11] What Are the Eligibility Requirements for DACA?, CitizenPath, https://citizenpath.com/faq/daca-eligibility-requirements/.

[12] Id.

[13] Lori Robertson, The Facts on DACA, FactCheck (Jan. 22, 2018), https://www.factcheck.org/2018/01/the-facts-on-daca/.

[14] Id.

[15] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[16] Dara Lind, March 5 Is Supposed to Be the DACA “deadline.” Here’s What That Means for Immigrants, Vox, https://www.vox.com/policy-and-politics/2018/2/16/17015818/daca-deadline-trump-dreamers-march-5 (last updated Mar. 5, 2018, 10:31 AM).

[17] Lomi Kriel, Trump’s Decision to End DACA Faces Supreme Court Scrutiny, Houston Chron. (Nov. 11, 2019), https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-s-decision-to-end-DACA-faces-Supreme-14827072.php.

[18] Howe, supra note 3; 5 U.S.C § 551 (2012).

[19] 5 U.S.C. § 551.

[20] Howe, supra note 3.

[21] Id.

[22] Amy Howe, Argument Analysis: Justices Torn, Hard to Read in Challenge to Decision to End DACA, SCOTUSBlog (Nov. 12, 2019, 2:07 PM), https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/.

[23] Id.

[24] Howe, supra note 3.

[25] Id.

[26] Howe, supra note 1.

[27] Id.

[28] Id.

[29] Howe, supra note 22.

[30] Id.

[31] Id.

[32] Supreme Court Grants Cert in Three DACA Cases, Nat’l Immigr. L. Ctr. (June 28, 2019), https://www.nilc.org/issues/daca/alert-supreme-court-grants-cert-in-three-daca-cases/.

[33] Lind, supra note 16.

[34] Hector Barreto, Here’s Why Trump is Right to End DACA, CNBC (Sept. 6, 2017), https://www.cnbc.com/2017/09/06/on-daca-trump-did-the-right-thing-commentary.html.

[35] Yanet Limon-Amado, Losing DACA Would, on Top of Everything Else, Double My College Tuition, Wash. Post (Nov. 12, 2019), https://www.washingtonpost.com/outlook/2019/11/12/losing-daca-would-top-everything-else-double-my-college-tuition/.

By James Sprague

The Supreme Court of the United States has the opportunity to shape the future of civil rights litigation in Comcast Corp. v. National Association of African American-Owned Media & Entertainment Studios Networks, Inc. Although 42 U.S.C. § 1981 bars racial discrimination in contracting, circuits disagree on the causation standard necessary to sustain a claim.[1] The Seventh Circuit, for instance, requires racial animus to be a but-for cause of the defendant’s refusal to transact.[2] By contrast, the Ninth Circuit merely requires racial animus to be a motivating factor in the defendant’s refusal, similar to the causation framework available under Title VII discrimination cases.[3]

Due to the difficulty of showing but-for causation in discrimination cases before discovery, the Supreme Court could significantly limit the availability of § 1981 relief if it requires pleadings under the statute to show but-for cause.[4] On the other hand, a relaxed causation standard could expose defendants to predatorial plaintiffs lacking bona fide claims, thereby subjecting blameless defendants to frivolous lawsuits, burdensome discovery, and unnecessary expenses and settlements.[5]

The Backdrop of the Case

ESN is a wholly African American-owned media company that owns and operates numerous television channels and their content.[6] After more than a decade of negotiations, Comcast refused to carry any of ESN’s networks.[7] Alleging racial discrimination in contracting, ESN filed suit in the Central District of California pursuant to 42 U.S.C. § 1981.[8] The district court dismissed ESN’s case three times, but the Ninth Circuit reversed, holding that ESN’s allegations supported the inference that “discriminatory intent played at least some role in Comcast’s refusal to contract.”[9] A brief recitation of ESN’s allegations follows.

  • Comcast executives required ESN to achieve support “in the field” from Comcast’s regional offices and management. After achieving such support, Comcast told ESN that field support did not matter.[10]
  • Comcast corporate representatives told ESN to obtain Division support, but the Divisions told ESN that they deferred to corporate.[11]
  • Comcast executives told ESN that Comcast would carry ESN’s channels if Comcast’s principle competitors, Verizon FIOS, AT&T U-verse, and DirecTV, carried ESN’s channels. Comcast still refused to contract with ESN after Comcast’s principle competitors started carrying ESN’s channels.[12]
  • Comcast consistently cited a lack of carrying capacity when declining to carry ESN’s shows but has launched over 80 channels since 2010, including lesser-known, white-owned channels.[13]
  • Comcast cited a lack of demand for ESN’s productions, but over 50 multichannel video programming distributors broadcast ESN’s channels to an 80-million-person subscriber base, and one of ESN’s channels has won an Emmy Award.[14]
  • Comcast broadcasts all of the channels carried by its principle competitors except ESN’s channels.[15]
  • To affect its merger with NBC Universal, Comcast entered into a memorandum of understanding with civil rights groups requiring Comcast to launch four African American-owned networks. Rather than choose ESN’s channels, Comcast launched new, untested networks that “are predominately white-owned with African American figureheads.”[16]

On March 8th, 2019, Comcast petitioned the Supreme Court for certiorari, arguing that Comcast’s actions were consistent with legitimate business reasons, “namely[] lack of demand for ESN programming and the bandwidth costs for carrying ESN’s channels,” and were unmotivated by race.[17] Because ESN failed to allege facts inconsistent with legitimate reasons, Comcast asserted, ESN did not plausibly show any discriminatory intent animating Comcast’s refusal to contract, thereby failing the pleading standards mandated by Ashcroft v. Iqbal.[18] The Court granted Comcast’s petition on June 10th, 2019.[19] The narrow issue to be considered before the Court is “whether a claim for race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation.”[20]

The Chief Legal Arguments

Petitioner Comcast

First, Comcast asserts that the plain language of § 1981 confirms but-for causation as an element of the claim.[21] Section 1981 guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”[22] Accordingly, if a defendant would have refused to contract with a white person under the same circumstances, the § 1981 plaintiff has not been denied the same right to contract as white citizens.[23] As such, according to Comcast, the defendant must refuse to contract because of the plaintiff’s race; that is; “but for” the plaintiff’s race, the defendant would have assented to the contract.[24] Because § 1981 requires but-for causation, then, plaintiffs must plausibly establish such causation through the factual allegations in their pleadings.[25]

Furthermore, Comcast argues that but-for cause is the default causation rule when in, terpreting federal statutes, quoting the Supreme Court in University of Texas Southwestern Medical Center v. Nassar: “Causation in fact . . . is a standard requirement or any tort claim . . . this standard requires the plaintiff to show ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.”[26] Thus, without language expressly indicating Congress’s intent to the contrary, courts must presume a but-for causation requirement when interpreting statutes.[27] Because § 1981 has no such language, any pleadings arising under the statute fail, absent plausible allegations of but-for cause.

Finally, Comcast argues that Congress first authorized the motivating factor standard in the Civil Rights Act of 1991, over a century after Congress passed the Civil Rights Act of 1866 (which it later recodified as 42 U.S.C. § 1981).[28] Even then, Congress only authorized the motivating factor standard with respect to specific claims under Title VII and the Civil Rights Act of 1964.[29] Because Congress could have authorized the motivating factor standard in § 1981 when it amended the other civil rights statutes, its decision otherwise, according to Comcast, implies Congress’s unwillingness to authorize the approach endorsed by the Ninth Circuit.[30]

Respondent ESN

First, ESN argues that the Court’s previous holdings, and therefore stare decisis, favor a motivating factor and burden-shifting approach under § 1981, and do not require but-for causation.[31] In Patterson v. McLean Credit Union, the Court expressly held that Title VII’s burden-shifting framework applies to claims arising under § 1981.[32] This standard, rather than requiring plaintiffs to plead but-for causation, requires plaintiffs to allege facts “creating an inference of racial discrimination,” after which the burden shifts to the defendant to show that its motivations were legitimate and non-discriminatory.[33]

This approach, according to ESN, is essential because showing but-for cause in § 1981 pleadings often, in the words of Justice O’Connor, “demands the impossible.”[34] As such, many potentially meritorious claims would be unable to survive a motion to dismiss under pleading standards requiring but-for causation.[35] This is especially true in civil rights cases “where the defendant is typically the only party with access to evidence of the defendant’s motives.”[36] By contrast, a motivating factor requirement would allow such cases to at least proceed to discovery.[37]

Furthermore, ESN asserts that §1981’s plain language supports plausible allegations showing motivating factor rather than but-for cause.[38] Section 1981 guarantees that all American citizens have the “same” right to contract as white Americans.[39] Because statutory terms, when undefined within the statute, carry their ordinary meaning, “same” means “identical.”[40] As such, African Americans and other racial minorities do not receive identical treatment if race is a motivating factor in the defendant’s refusal to contract.[41] Additionally, ESN points out that the Supreme Court has endorsed the motivating factor and burden-shifting framework instead of but-for cause in other statutes that use the word “same.”[42] Finally, ESN argues that a motivating factor framework aligns with the comprehensive remedial purpose of § 1981.[43]


In deciding this case, the Supreme Court will have to consider the accessibility of discovery for claims arising under 42 U.S.C. § 1981. Numerous amicus briefs support ESN, including briefs submitted by the NAACP and teams of law professors.[44] The United States filed an amicus brief in support of Comcast.[45] The Supreme Court will hear oral arguments on November 13th, 2019.[46]

[1] 42 U.S.C. § 1981 (2012).

[2] Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1262–63 (7th Cir. 1990) (“To be actionable, racial prejudice must be a but-for cause, or in other words a necessary condition, of the refusal to transact . . . otherwise there is no harm from the prejudice—the harm would have occurred anyway.”).

[3] Nat’l Ass’n of African Am.-Owned Media v. Charter Commc’ns, Inc., 915 F.3d 617, 626 (9th Cir. 2019) (“Even if racial animus was not the but-for cause of a defendant’s refusal to contract, a plaintiff can still prevail if she demonstrates that discriminatory intent was a factor in that decision.”).

[4] Brief for Respondent at 17, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Sep. 23, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/116717/20190923163651003_38584%20pdf%20Chemerinsky.pdf; see Price Waterhouse v. Hopkins, 490 U.S. 228, 264 (1989) (O’Connor, J., concurring) (recognizing that the but-for test, at times, “demands the impossible”).

[5] Brief for Petitioner at 44, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Aug. 8, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/111674/20190808133518678_Comcast-NAAAOM%20Opening%20Merits%20Brief%20TO%20FILE.pdf.

[6] Nat’l Ass’n of African Am.-Owned Media v. Comcast Corp., 743 F. App’x 106, 106 (9th Cir. 2018).

[7] Id.

[8] Id.

[9] Id. at 107.

[10] Brief for Respondent, supra note 4, at 51.

[11] Id.

[12] Id.

[13] Id. at 52.

[14] Id.

[15] Id.

[16] Id.

[17] Petition for a Writ of Certiorari at 8, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Mar. 8, 2019), https://www.supremecourt.gov/DocketPDF/18/18-1171/91371/20190308153623647_Comcast%20-%20NAAAOM%20Petition%20TO%20PRINTER.pdf.

[18] Id.; see Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009).

[19] Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, SCOTUSblog, https://www.scotusblog.com/case-files/cases/comcast-corp-v-national-association-of-african-american-owned-media/ (last visited Nov. 3, 2019).

[20] Id.

[21] Brief for Petitioner, supra note 5, at 20.

[22] Id.

[23] Id.

[24] Comcast articulates this argument by citing the reasoning of the Third Circuit: “[If] the same decision would have been made regardless of the plaintiff’s race, then the plaintiff has, in effect, enjoyed ‘the same right’ as similarly situated persons.” Brown v. J. Kaz, Inc., 581 F.3d 175, 182 n.5 (3d Cir. 2009).

[25] Brief for Petitioner, supra note 5, at 19.

[26] 570 U.S. 338, 346–47 (2013).

[27] Brief for Petitioner, supra note 5, at 22.

[28] Congress passed the Civil Rights Act of 1866 (by overriding President Johnson’s veto) in an attempt to void the Black Codes of the South. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426 (1968). Congress would later recodify this Act as 42 U.S.C. § 1981. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 372 (2004).

[29] Brief for Petitioner, supra note 5, at 28.

[30] Id.; See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174–75 (2009); “When Congress amends one statutory provision but not another, it is presumed to have acted intentionally . . . [and the] negative implications raised by disparate provisions are strongest . . . when the language raising the implication [in this case, the language authorizing a motivating factor standard] was inserted.”).

[31] Brief for Respondent, supra note 4, at 18.

[32] 491 U.S. 164, 186-87 (1989).

[33] Id.

[34] Price,490 U.S. at 264 (O’Connor, J., concurring).

[35] Id.; Brief for Respondent, supra note 4, at 11.

[36] Brief for Respondent, supra note 4, at 11.

[37] Price, 490 U.S. at 264.

[38] Brief for Respondent, supra note 4, at 28.

[39] 42 U.S.C. § 1981 (2012).

[40] Sebelius v. Cloer, 569 U.S. 369, 376 (2013); Noah Webster, An American Dictionary of the English Language (Noah Porter ed., 1864) (defining “same” as “identical”).

[41] Brief for Respondent, supra note 4, at 28.

[42] Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1345, 1353–54 (2015).

[43] Brief for Respondent, supra note 4, at 44.

[44] SCOTUSblog, supra note 19.

[45] Id.

[46] Id.

By Elliott Riches

On September 11, the Trump Administration received a major victory in the Supreme Court.[1] No, the Court hadn’t granted certiorari or heard oral argument; this win came in what the legal community refers to as the “shadow docket.”[2] Most law students or legal practitioners will likely be familiar with the Supreme Court’s primary method for deciding cases: petition for certiorari, certiorari granted, oral argument, months of waiting, and finally a written opinion.[3] The Court has operated this way for years. The Trump Administration, though, has found a new, quicker way to resolve issues in its favor. It uses extraordinary measures such as a petition for certiorari before judgment or application for a stay pending appeal before the case even makes its way through the appellate process.[4]

The Supreme Court Rules do provide for this sort of relief. Supreme Court Rule 11 provides that litigants may seek relief in the Supreme Court before a lower court has issued its ruling.[5] The Court also allows for the issuance of a stay pending appeal.[6] But the Court’s own rules specify that “[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.”[7] In order to receive this sort of stay, the applicant must carry an “especially heavy” burden.[8] To meet this burden, it “must demonstrate (1) ‘a reasonable probability’ that [the] Court will grant certiorari, (2) ‘a fair prospect’ that the Court will then reverse the decision below, and (3) ‘a likelihood that irreparable harm [will] result from the denial of a stay.’”[9] The Trump Administration has filed at least twenty applications for a stay before judgment, not to mention other forms of extraordinary relief including petitions for certiorari before judgment and applications for writs of mandamus.[10] In contrast, Presidents Barack Obama & George W. Bush sought this sort of extraordinary relief a combined total of only eight times.[11]

That takes us to the administration’s most recent victory. On July 16, 2019, the United States, through the Departments of Justice and Homeland Security, promulgated a rule that would deny asylum to all Central Americans who passed through Mexico unless they first were denied asylum in either Mexico or another country.[12] The day they issued the rule, several organizations that represent immigrants seeking asylum sued the administration seeking both a temporary restraining order and a nationwide preliminary injunction.[13] The district court granted the preliminary injunction finding that the rule was “likely inconsistent with the existing asylum laws,” might violate the Administrative Procedure Act’s (APA) notice-and-comment rules, and was likely invalid as arbitrary and capricious.[14] In response, the administration appealed the ruling to the Ninth Circuit Court of Appeals and also sought a stay in that court pending the disposition of the appeal.[15] The Ninth Circuit instead narrowed the scope of the injunction to only apply within that Circuit, but allowed the District Court to examine additional factors to expand the injunction, which the District Court subsequently did.[16] Unsatisfied with the result in both the District Court and the Court of Appeals, the government sought a stay pending appeal in the Supreme Court.[17]

The Supreme Court chose to grant the stay without any explanation, simply writing, “The application for stay presented to Justice Kagan and by her referred to the Court is granted.”[18] The Court did not elaborate on its reasoning but instead merely issued procedural rules regarding the stay.[19] Two justices noted their dissent from the ruling; Justice Sotomayor was joined by Justice Ginsburg in her written dissent.[20] Among other reasons, Justice Sotomayor noted the frequency with which the Trump Administration had sought this sort of extraordinary relief in the Supreme Court.[21] She writes, “The Government has treated this exceptional mechanism as a new normal.”[22] Justice Sotomayor went on to comment that, in contrast to historical precedent, the Trump Administration now seeks extraordinary relief “reflexively.”[23] She urged her fellow Justices to exercise “restraint” in allowing the administration to take “shortcuts,” a plea that apparently fell on mostly deaf ears.[24]

The Court would have been wise to heed Justice Sotomayor’s plea and deny extraordinary relief. This is not an issue of whether the policy is right or wrong; it is an issue of process. For years, extraordinary relief has only been asked for, let only granted, in truly extraordinary circumstances. The current administration’s consistent asking for relief weakens the institutional legitimacy of the Supreme Court. As Justice Gorsuch wrote, “This Court often speaks most wisely when it speaks last.”[25] By granting this sort of relief the Court is not allowing the appellate process to play out. Instead, it is choosing to circumvent the Courts of Appeal and make decisions about a case well before they have the kind of developed record and analysis traditionally seen in Supreme Court cases.

One potential argument those who support the administration’s drastic measures may make is that extraordinary relief is necessary against the trend of nationwide injunctions.[26] Justice Thomas discussed the issue of nationwide injunctions in the travel ban case writing that “they appear inconsistent with longstanding limits on equitable relief” and that if the trend continues, the Court “must address their legality.”[27] However, Thomas was not joined by any other justices in his lengthy concurrence on this issue. Therefore, until the Court does address the issue of nationwide injunctions, neither the Court nor litigants should attempt to prevent these injunctions using the shadow docket.

This is obviously not the first time, nor will it likely be the last time, that the Trump Administration seeks extraordinary relief in the Supreme Court. While the process for obtaining an opinion from the Supreme Court can sometimes take months or even years, extraordinary relief can be obtained in very short order.[28] Extraordinary relief is therefore a much more efficient solution for the Trump Administration’s desire to implement its administrative agenda, as opposed to waiting for the traditional Court process to unfold. Given the frequency with which the Trump Administration has filed for extraordinary relief, it is only an issue of when, not if, they next request it. Meanwhile, courtwatchers and the American people are left to wonder: how many more times will the Court give the administration what it wants?

[1] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781 (U.S. Sept. 11, 2019) (mem.), https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf (granting request for a stay pending appeal of injunction of immigration rule).

[2] See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).

[3] See Sup. Ct. R. 12, 16, 24, 28, 41.

[4] See, e.g., Application for a Stay Pending Appeal, E. Bay Sanctuary Covenant, 2019 WL 4292781 (U.S. Sept. 11, 2019) (No. 19A230), https://www.supremecourt.gov/DocketPDF/19/19A230/113613/20190826132549423_East%20Bay%20II%20Stay%20FINAL.pdf.

[5] 28 U.S.C. § 2101(e) (2012); Sup. Ct. R. 11.

[6] Sup. Ct. R. 23.

[7] Id.

[8] Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, J., in chambers).

[9] Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers) (quoting Conkridght v. Frommert, 566 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers)).

[10] Ian Millhiser, Justice Sotomayor Warns the Supreme Court is Doing “Extraordinary” Favors for Trump, Vox (Sept. 12, 2019, 11:20 AM), https://www.vox.com/2019/9/12/20862320/sotomayor-supreme-court-favors-trump; Steve Vladeck (@steve_vladeck), Twitter (July 12, 2019, 4:11 PM), https://twitter.com/steve_vladeck/status/1149773351784726528.


[12] Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835, 33,840 (Jul. 16, 2019) (to be codified at 8 C.F.R. pts. 208, 1003, 1208).

[13] E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 935 (N.D. Cal. 2019).

[14] Id. at 930.

[15] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781, at *2 (U.S. 2019) (mem.).

[16] Id.; E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST, 2019 WL 4265078, at *1 (N.D. Cal. 2019).

[17] Application for Stay Pending Appeal, supra note 4.

[18] E. Bay Sanctuary Covenant, 2019 WL 4292781, at *1 (U.S. 2019) (No. 19A230).

[19] Id.

[20] Id.

[21] Id. at *3 (Sotomayor, J., dissenting).

[22] Id.

[23] Id.

[24] Id.

[25] Maslenjak v. U.S., 137 S. Ct. 1918, 1932 (2017) (Gorsuch, J., concurring).

[26] Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 (2018) (Thomas, J., concurring) (“Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called ‘universal’ or ‘nationwide’ injunctions—have become increasingly common.”)

[27] Id. at 2425.

[28] In the East Bay case, the application for stay was filed on August 26, 2019. See Application for Stay Pending Appeal, supra note 4. As mentioned above, the Court issued the stay on September 11, 2019.

image by skeeze from Pixabay

By Laura Jordan

A few years ago, the federal government dissected a certain four-letter word.[1] It was prodded to see if it would “shock . . . the sense of truth, decency, or propriety” of the American public.[2] It was weighed to determine if it would “giv[e] offense to the conscience or moral feelings.”[3] And it was placed under the microscope to judge its “disgraceful[ness]” and “offensive[ness].”[4] That four-letter word survived the scrutiny and is alive and kicking today.[5] In fact, it was the scrutiny measures themselves that ultimately received the knife, cut out as unconstitutional by the Supreme Court over the summer.[6]

The four-letter word under debate was not one of the typical variety tossed around in casual settings, but it was close enough.[7] Plaintiff Erik Brunetti was trying to trademark the name “FUCT” as the title of his clothing brand.[8] He claimed that the four letters were to be pronounced individually, as in “F-U-C-T.”[9] However, as Justice Kagan pointed out in the majority opinion, “[Y]ou might read it differently and, if so, you would hardly be alone.”[10] The U.S. Patent and Trademark Office (PTO) certainly did, and they rejected Brunetti’s application.[11]

The PTO’s statutory authority to govern the trademark registration process is found in the Lanham Act, which is codified in 15 U.S.C. §§ 1051 et seq.[12] Under § 1051, the PTO is allowed to subject the proposed trademark to scrutiny under the “factors set forth in subsections (a) through (e)” within § 1052.[13] In particular, § 1052(a) allowed the PTO to scrutinize whether the proposed trademark “comprise[d] immoral . . . or scandalous matter.”[14] If so, the trademark could be rejected.[15] The PTO decided that FUCT fit squarely within the proscribed category, deploring it as “highly offensive,” “vulgar,” and sexually reprehensible.[16] Brunetti pushed back against the rejection and won in the Court of Appeals for the Federal Circuit. The circuit court found that the PTO’s ban against “immoral, deceptive, or scandalous matter” was not in line with the First Amendment.[17]

The Supreme Court then took the statutory phrase under consideration, turning to its 2017 decision in Matal v. Tam[18] for guidance.[19] In Matal, the Court examined whether the PTO could refuse registration to trademarks that “‘disparage’ any ‘person[], living or dead’” within § 1052(a).[20] Simon Tam, of the band “The Slants,” had fought a lengthy battle to trademark the band’s name in order “to ‘reclaim’ and ‘take ownership’ of stereotypes about people of Asian ethnicity.”[21] However, the PTO rejected the trademark, reasoning that “the fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the reference group would find the term objectionable.”[22] Ultimately, the Court decided that “if a trademark registration bar is viewpoint-based, it is unconstitutional” and that the PTO’s “disparagement bar was viewpoint-based.”[23]

With that holding in mind, the Court reasoned that “if the ‘immoral or scandalous’ bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine.”[24] Looking to dictionary definitions of “immoral” and finding results such as “inconsistent with rectitude, purity, or good morals,” the majority found that this statutory language is entirely viewpoint-based.[25] It upholds “conventional moral standards” while rejecting as impure other ideas that may not be as mainstream.[26] The Court lightheartedly pointed out that a mark such as “ALWAYS BE CRUEL” would not survive this scrutiny.[27] In the past, the PTO has taken the traditional side of morally-contested arguments, rejecting drug-positive trademarks such as “YOU CAN’T SPELL HEALTHCARE WITHOUT THC” and “BONG HITS 4 JESUS” while registering “SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE.”[28] Thus, the immoral-or-scandalous bar, as written, allowed the government to approve some viewpoints over others.[29]

In arguing that the immoral-or-scandalous bar is constitutionally sound, the Government attempted to narrow the phrase to only “marks that are ‘vulgar’—meaning ‘lewd,’ ‘sexually explicit or profane.’”[30] If it were so narrow, then it would be constitutionally sound.[31] But the majority rejected this reasoning and found that the phrase encompasses much more:

It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.[32]

In striking down the statutory phrase, the majority therefore paved the way for the “FUCT” trademark.[33]

So, with this decision, can Americans now trademark whatever the FUCT they want to? Justice Sotomayor seemed to worry about that perhaps unintended consequence.[34] In her concurrence in part and dissent in part, she wrote,

The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U.S.C. § 1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.[35]

However, Justice Alito stood up in his concurrence for the sanctity of free speech, arguing that “[a]t a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.”[36]

Whichever side you are on, now might be the best time to go get that trademark registered.

[1] See Iancu v. Brunetti, 139 S. Ct. 2294, 2297 (2019).

[2] Id. at 2298.

[3] Id.

[4] Id.

[5] Id. at 2302.

[6] Id.

[7] Id. at 2297.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] 15 U.S.C. § 1051(d)(1) (2012).

[14] § 1052(a).

[15] § 1051(d)(1).

[16] Brunetti, 139 S. Ct. at 2298.

[17] Id.

[18] See generally 137 S. Ct. 1744 (2017).

[19] Brunetti, 139 S. Ct. at 2298.

[20] Id.

[21] Matal, 137 S. Ct. at 1754.

[22] Id.

[23] Brunetti, 139 S. Ct. at 2299.

[24] Id.

[25] Id.

[26] Id. at 2300.

[27] Id.

[28] Id.

[29] Id. at 2301.

[30] Id.

[31] Id.

[32] Id. at 2301–02.

[33] Id.

[34] Id. at 2308 (Sotomayor, J., concurring in part and dissenting in part).

[35] Id.

[36] Id. at 2303–04 (Alito, J., concurring).

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.


By Daniel Stratton

Today, March 21, 2016, the Fourth Circuit issued a published opinion in the civil case Jane Doe #1 v. Matt Blair, vacating the district court’s decision. The Fourth Circuit held that the lower court incorrectly determined that there was no federal diversity jurisdiction because the defendant corporation failed to allege its principal place of business. The Fourth Circuit overturned the decision because it was a procedural determination rather than a jurisdictional one.

The Case Bounces Between State and Federal Courts

On March 27, 2014, Ben and Kelly Houdersheldt filed a complaint in West Virginia state court as the next friends and guardians of Jane Doe #1, against Matt Blair and Res-Care, Inc. On July 14 of that same year, Res-Care removed the case to federal court, claiming subject matter jurisdiction based on diversity. Res-Care alleged that Jane Doe #1 was a resident of West Virginia and that Blair was a resident of Virginia. The company alleged that it was incorporated in Kentucky, but did not allege the state in which it had its principal place of business. The Houdersheldts, acting as next friends and guardians of Jane Doe #2, amended the complaint to include the second plaintiff. Jane Doe #2 and the Houdersheldts were residents of West Virginia.

On January 20, 2015, the district court sua sponte remanded the case back to state court, asserting that diversity subject matter jurisdiction had not been established. The court asserted that because neither party had asserted where Res-Care had its principal place of business, the court did not have jurisdiction based on diversity. Defendant Blair filed a motion to amend under Federal Rule of Civil Procedure 59(e) and for reconsideration under Federal Rule of Civil Procedure 60. Res-Care joined the motion. In the motion, the defendants argued that no party had challenged the diversity jurisdiction and that the parties had determined that Res-Care’s principal place of business was Louisville, Kentucky. The plaintiffs did not oppose Blair and Res-Care’s motion, but the district court denied it. Res-Care and Blair appealed.

Procedural or Jurisdictional: The Threshold Question for Reviewing Removal Orders

Federal circuit courts are restricted in reviewing district court orders remanding removed cases to state court. Under 28 U.S.C. § 1447(d), remand orders are generally “not reviewable on appeal or otherwise.” Supreme Court precedent, however, limits 28 U.S.C. § 1447(d) to cases where (1) a district court lacks subject matter jurisdiction, or (2) there is a defect in removal (other than a lack of subject matter jurisdiction) that was raised by a motion filed by a party within thirty days after the notice of removal was filed.

Under this system, a court can remand a case sua sponte for lack of subject matter jurisdiction at any time. Such an order is not reviewable by a federal appellate court. However, if the remand is based on another defect, a motion must be timely filed. If no motion is filed, 28 U.S.C. § 1447(d) does not bar a court’s review. Essentially, whether an appellate court has jurisdiction to review a district court’s remand order turns on whether the order was jurisdictional or procedural in nature.

How Have Other Circuits Tackled This Question?

In deciding how to resolve this case, the Fourth Circuit took notice of how other circuits have dealt with the the precise issue of “whether a failure to establish a party’s citizenship at the time of removal is a procedural or jurisdictional defect.” Three other circuits – the Fifth, Seventh, and Eleventh Circuits – had previously determined that this type of failure was “procedural, rather than jurisdictional.” Those circuits determined that a procedural defect was any defect that did not go to the question of whether the case could have been brought in federal court in the first place.

The Fourth Circuit, in the 2008 case Ellenberg v. Spartan Motors Chassis, reached a similar decision in regards to the amount in controversy component of diversity jurisdiction. In that case, the complaint did not state a dollar amount for damages claimed. The notice of removal to federal court there stated that the amount in controversy exceeded $75,000. Once the case was in federal court, the district court sua sponte considered whether the case should be remanded to state court. There, the district court found that the defendants’ allegations of diversity jurisdiction failed because they had failed to establish that the amount in controversy exceeded the required jurisdictional amount. Soon after, the defendants filed a motion with facts supporting their allegations regarding the amount in controversy, which the district court denied. On appeal, the Fourth Circuit determined that it was not barred from reviewing the lower court’s decision because the remand order was based on a procedural insufficiency rather than on finding a lack of subject matter jurisdiction.

The Fourth Circuit Applies Ellenberg; Adopts Approach of the Other Circuits

Turning to the present case, the Fourth Circuit noted that the district court had proceeded in a manner similar to the district court in Ellenberg. Like that court, the court in the current case had “recited the well-established principles of subject matter jurisdiction” then determined that diversity jurisdiction had not been established. Then, after Blair attempted to correct this failure with his Rule 59(e) motion, the court here denied that motion, much as the court in Ellenberg.

The Fourth Circuit was not persuaded that in the present case the lower court had explicitly concluded that there was no subject matter jurisdiction, because such an order required an examination of the underlying substantive reasoning. This, the Fourth Circuit reasoned, was enough to show that the district court had not based its decision on a lack of subject matter jurisdiction, but instead on the procedural insufficiency of the removal notice. As a result, the court explained that the only way the this procedural deficiency could be raised would be by a party filing a timely motion, which did not occur here. Thus the Fourth Circuit adopted the approach used by the Fifth, Seventh, and Eleventh Circuits.

The Fourth Circuit Remands the Case Back to Federal District Court

Because the district court improperly remanded this case sua sponte, the Fourth Circuit reversed the lower court’s decision and remanded the case back for further proceedings. The Fourth Circuit also granted a motion made by Res-Case to amend its removal notice to correct its earlier deficiency.

By Andrew Kilpinen

In a split decision featuring three separate opinions, the 4th Circuit affirmed in part and vacated in part the district courts dismissal in Owens v. Baltimore City State’s Attorneys.

 Owens Challenges Statute of Limitations, Sovereign Immunity, Qualified Immunity, and Failure to State a Claim

The Court reviewed four issues de novo: (1) Is Owens’s claim time barred, (2) is the Baltimore City State’s Attorney’s office an entity capable of suit, (3) are Officers Pelligrini, Dunnigan, and Landsman protected by qualified immunity, and (4) does Owens’s complaint contain sufficient factual content to survive a motion to dismiss on the claim that the BCPD followed a custom, policy, or practice by which local officials violated Owens’s constitutional rights?

 Owens Was Convicted of Rape and Murder

The present controversy grew out of the investigation, trial, and conviction of James Owens for the rape and murder of Colleen Williar on August 2, 1987. The State’s key witness, James Thompson, changed his testimony five times during the investigation and trial. Central to Owens’s appeal was withholding of the multiple variations of Thompson’s testimony from defense counsel.

The jury convicted Owens of burglary and felony murder. In 2006, DNA evidence showed that Owens’s DNA did not match the blood and semen evidence at the crime scene. On June 4, 2007, Owens was granted a new trial. On October 15, 2008 the State’s Attorney entered a nolle prosequi, dropping the charges against him. Owens was subsequently from prison released after twenty years of incarceration.

 Statute of Limitations Began to Run After the Nolle Prosequi and Owens’s Claim is Therefore Not Time Barred

First, the Court held that Owens’s claim is not time barred because the statute of limitations began to run when the State issued the nolle prosequi, not when the State granted Owens’s a new trial. Since § 1983 does not provide a statute of limitations, the Court must look to the common-law tort most analogous to Owens’s claim. Here, the Court identified malicious prosecution as the common-law tort most analogous to Owens’s §1983 claims. Generally, the statute of limitation clock begins to run as soon as the plaintiff knows or has reason to know of his injury. However, sometimes, as is the case in malicious prosecutions, the common law provides a “distinctive rule” for determining the start date of the limitations period. Thus, the Court held that the statute of limitations began to run on Owens’s claim after the nolle prosequi, not at the start of the new trial.

 Baltimore City State’s Attorney’s Office Is Not an Entity Capable of Being Sued

Second, the Court held that the Baltimore City State’s Attorney’s Office is not an entity capable of being sued because the office does not have a legal identity. To be suable, an office or agency must be granted a legal identity through statutory or constitutional authority. Owens argued that the Maryland General Assembly granted such legal identity when it named Title 15 of the Maryland Code of Criminal Procedure “Office of the State’s Attorney.” The Court rejected this argument stating that the title refers to a position held by an individual and not a suable office.

 Officers Are Not Protected by Qualified Immunity

The Court rejected the officer’s defense of qualified immunity. The Court had little difficulty concluding that Owens’s allegations state a plausible § 1983 claim because the information withheld by the officers would have supported his theory that Thompson committed the rape and murder; commenting that at the very least it would have discredited Thompson’s testimony. The Court cites the fact that the officers were seasoned veterans who called the ASA moments after receiving Thompson’s final story to support the conclusion that they withheld the four previous versions intentionally and maliciously. The Court points to precedent in Barbee, Sutton, and Boone in holding that the officers should have known that not disclosing material exculpatory evidence was a violation of Owens’s constitutional rights in 1988.

 Owens’s Complaint Survived Motion to Dismiss

Finally, the Court held that the factual allegations in Owens’s complaint, including reported and unreported cases of officers withholding information from the period of time before and during his trial, contained sufficient factual content to allege that the BCPD maintained a custom, policy, or practice allowing the withholding of material exculpatory evidence. The Court found the allegations that BCPD officers withheld information on multiple occasions could establish a “persistent and widespread” pattern of practice. The Court held that Owens’s complaint survived the BCPD’s 12(b)(6) motion to dismiss.

 4th Circuit Affirmed in Part and Vacated in Part

Owens will have yet another day in court to prove his § 1983 claims against the BCPD, and the individual officers, but not the State Attorney’s Office. The case was remanded to the district court for further proceedings.

By Bradley Pollina


The Supreme Court recently handed down its decision in Florida v. Jardines,[1] affirming by a 5-4 vote the Florida Supreme Court’s ruling[2] that the police’s use of a trained narcotics detection dog on the front porch of a home is a “search” within the meaning of the Fourth Amendment.  This case is the first time the Court has applied the non-Katz-based search doctrine articulated in United States v. Jones.[3]  As will be more fully elaborated below, it is my claim that the Court purposely avoided using the word “trespass” so as not to reverse the Florida state courts, which had decided that the police were lawfully present on the defendant’s property at the time of the dog sniff, on an issue lying at the heart of state court competence—that is, application of the common law of trespass.

Recall that in Katz v. United States,[4] the Court overruled Olmstead v. United States.[5]  The Court in Olmstead held that wiretapping was not a Fourth Amendment search because there was no physical police invasion of property that would constitute a trespass—there was no “entry of the houses or offices of the defendants.”[6]  Justice Harlan authored a concurring opinion in Katz that was to become the dominant formulation of the test for a search under the Fourth Amendment[7]—if the individual has manifested a subjective expectation of privacy and society is prepared to accept that expectation as reasonable, then there is a right to privacy protected by the Fourth Amendment in those circumstances.[8]

Justice Scalia, writing for the Court in Jones, reasoned that the “persons, houses, papers and effects” portion of the Fourth Amendment would be rendered superfluous if the Fourth Amendment were not closely tied to property rights.[9]  According to Justice Scalia’s opinion, and much to the surprise of many observers, Katz’s reasonable expectation of privacy (“REOP”) standard “added to”—but did not “substitute[] for”—the common law trespassory test used by the Court for decades prior and embodied inOlmstead.[10]  As the Court put it, “for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.  Katz did not repudiate that understanding.”[11]  As a result, information gained by the government’s trespassory activity would be the product of a search within the meaning of the Fourth Amendment.[12]  Five members of the Court saw the police’s placement of a GPS device on the defendant’s car as a governmental trespass on private property, therefore constituting a Fourth Amendment search.[13]  Four others concurred in the judgment, but rejected the trespass rationale.[14]

I.  Dissecting Jardines: Rationalizing the Court’s Options

It is quite clear that in Jardines, Justice Scalia did not rely on the REOP strand of Jones.  But what is curious is that he did not use the word “trespass” once in his majority opinion.[15]  Instead, Justice Scalia conspicuously referred to that portion of theJones opinion as holding that “‘when the Government obtains information by physically intruding’ on persons, houses, papers or effects,” a search has occurred.[16]  Because, according to the majority, that occurred when the police brought a narcotics-sniffing dog to the defendant’s front door to search for drug activity, there was no reason to reach the question of whether the defendant’s reasonable expectation of privacy was violated.[17]

In my view, the “trespass” test articulated in Jones and the “physical intrusion” application in Jardines are identical in content.  Indeed, Justice Kagan’s concurring opinion understands the majority opinion to have found that the police conduct constituted a trespass.[18]  The dissent reached a similar conclusion (though it obviously did not agree that one had occurred).[19]  What is more difficult to discern is whether or not this branch of Fourth Amendment doctrine relies on common law trespass—as theJones majority articulated it—or on some notion of constitutional common law, under which the federal and state courts are to decide if the police committed a “physical intrusion” having constitutional significance.  But in my view, there is little reason to think it is the latter.  Aside from the understanding evidenced by the concurring and dissenting justices, the remainder of this Article offers another reason to think that the Jones test is alive and well as articulated in that opinion, and that there were other, more deeply-rooted reasons for the Court to avoid using the magic word “trespass” in Jardines, and instead rely on a notion of “physical intrusion” in.

It will be interesting to see how this issue plays out in the lower courts, but for the sake of observation, I suspect that the majority in Jardines had a particular reason for not using the word “trespass” despite the strong expectation that it would do so based on the opinion in Jones.  My theory is that Justice Scalia did not want to intrude upon the Florida courts’ handling of the trespass issue.  As the dissent in the Florida Supreme Court decision points out, it was undisputed that the police were lawfully present at Jardines’ front door.[20]  There was no trespass under state law-that much was clear for the remainder of litigation in the Florida courts[21]-and the United States Supreme Court.[22]  Conversely, the Florida Supreme Court had found a search under the more traditional Katz/REOP test.[23]  It decidedly did not revisit the trespass issue, and let stand the Florida Court of Appeals’ ruling that the police were lawfully present at the defendant’s front door.[24]

Thus, in order for the U.S. Supreme Court to affirm the finding of a “search,” I think it had three main options: 1) affirm that a search had occurred on the REOP rationale, 2) vacate on the REOP analysis and remand to the state courts for consideration in light of Jones and the trespass rationale (decided after the Florida Supreme Court decided Jardines), or 3) find a search based on the Jones trespass test and commit a blunder of judicial federalism.[25]

The first option would seem the easiest, and it is what I thought the Court was poised to do.  However, the majority turned out to be much more eager to apply the “new” Jones rationale (that Justice Scalia claimed was actually an old rationale) instead of traditional REOP doctrine from Katz.[26]  The second option would be unsatisfactory, since it would leave the ultimate disposition of an important Fourth Amendment issue (dog sniffs as searches) unresolved during more litigation in the state courts, and even then, the Florida courts’ resolution of the Fourth Amendment question would not necessarily be binding in other states.  Furthermore, if the Supreme Court reversed the state courts on the REOP rationale, the judgment entered on remand would probably be one finding “no search” since there is no reason to believe the issue of trespass would be decided any differently by the state courts the second time around.[27]  This option would accomplish little, save for virtually requiring the state courts to find that no search occurred and, perhaps more cynically, would only be useful if that is the result the justices wanted.

The third option would be something of an intrusion into the routine workings of the state courts, since it would involve the United States Supreme Court resolving a basic question of state tort law that was settled below in the state courts.[28]  Answering the question of whether a common law trespass occurred is an issue at the heart of state court decision making.  In other words, if the Supreme Court disagreed that the dog sniff violated a reasonable expectation of privacy, but nevertheless thought that a trespass—and therefore a search—had occurred, it essentially would be telling the Florida state courts that they had misapplied the common law of trespass.[29]

While not inconceivable,[30] this approach would not comport with a reasonable sense of federal non-interference with state court adjudication.  This is best understood as a question of jurisdictional discretion—while the Supreme Court could reverse a state court’s resolution of a state law issue, it might decline to do so based on respect for the state court.  Similarly, it could simply resolve the case on other grounds to avoid the problem.  Here, the Court could have simply affirmed on the REOP rationale and declined to apply the new Jones analysis.[31]

The way that the Court decided Jardines is substantively in line with the third option—it found that a search had occurred, but not on the traditional REOP framework.  And this is what precipitated the fourth “option.”  The Court resolved the search issue on the new Jones rationale without saying it was actually finding a “trespass.”

II.  Why the Court Didn’t Say “Trespass”

My claim is that Justice Scalia took this approach (“physical intrusion” instead of “trespass”) in the first instance, and gained the support of four other justices in conference, in order not to offend the Florida state courts by re-working (i.e., reversing) their resolution of the common law trespass issue.  I see no explanation in the majority opinion of how the Jones “trespass” test has changed in any way in Jardines, where it was described as a “physical intrusion” rationale.[32]  Nor is an explanation provided by the other justices writing separately in concurrence or dissent.[33]  Instead, I think Justice Scalia purposely minced his words in a way that allowed de facto application of the Jones trespass rationale without using the word “trespass.”  There is a strong background notion shared by many onlookers that, despite the Court’s technical ability to do so, it should not (and in this case would not) re-visit an issue so central to the daily work of a state court.[34]  The majority could, to some extent, blunt the resonance of such a move by carefully selecting its words.

To ground things a bit more in federal courts doctrine, consider the jurisdictional principles at play in the case.  There is no doubt that the Supreme Court possesses the jurisdiction to decide non-federal issues when they are antecedent to the resolution of an issue of federal statutory or constitutional right, as in these Fourth Amendment search cases.[35]  The issue of whether a common law trespass occurred must be determined in order to decide whether a “search” occurred within the meaning of the federal Constitution—indeed, the answer to the “search” question is entirely answered by the “trespass question.”  But I think that larger issues of federal-state judicial relations were at play in this case, and that was what was driving the unexpected outcome.  As Professor Shapiro has explained, “a court will often acknowledge that it has jurisdiction over the subject matter of a dispute yet, despite Marshall’s dictum, will refrain from exercising it.”[36]  In other jurisdictional settings (i.e., not on review of a state court judgment), the Court has developed a set of abstention doctrines designed to promote equity, comity, and federalism—Pullman,[37] Burford,[38] and Younger[39] to name a few of the most prominent examples.  Similarly, on direct review of state court judgments, the Court’s decision in a given case not to visit certain issues resolved in the state courts may also be driven by concerns for comity and federalism.  Leaving undisturbed a state court’s ruling on an issue in a case is a vote of confidence for the state courts; on the other hand, a reversal of a state court’s ruling on a run-of-the mill question may create friction between the federal and state judicial systems.  By not using the word “trespass” and appearing to retreat from the repeated use of that word inJones, Justice Scalia seems to have decided the case on an altered rationale.  But on closer examination, it appears that he may have been trying to avoid the affront to the state courts that would have occurred had he explicitly second-guessed a common law question at the core of their competence by saying that a trespass took place.  Calling the conduct at issue a “physical intrusion,” at the very least, avoided this in name.  How successful this attempt was at avoiding friction with the Florida state courts on a decidedly non-federal issue is another matter entirely.


In summary, the Court decided that the sanctity of the home was offended by the dog sniff in this case since the police entered this constitutionally protected area, but it did so in a roundabout way.  The result is that the state of the Jones “trespass” test is in flux and will spawn more litigation over whether there must be a finding of a common law trespass in order to rely upon that branch of Fourth Amendment search doctrine, or if instead, state and federal courts are to rely upon some notion of an unconstitutional “physical intrusion” whose relationship to common law trespass is unclear at this point in time.  Moreover, this case illustrates that the procedural posture of a case on certiorari from a state supreme court may affect the substantive content of the decision in the United States Supreme Court.  Here, there is strong reason to believe—in light of judicial federalism—that the finding in the Florida Court of Appeals that the officer and dog were lawfully present on the property tied the hands of the Supreme Court ever so slightly.  As a result, the Court’s holding finding a search was less than straightforward and tiptoed around the word “trespass” while, in effect, holding that is precisely what occurred.


         [1].   133 S. Ct. 1409 (2013).

         [2].   See Jardines v. Florida, 73 So. 3d 34 (Fla. 2011).  The Florida Supreme Court held that the Fourth Amendment draws a “firm line at the entrance of the house” and that the “sniff test” undertaken by the police and K9 partner was a search requiring probable cause and a warrant.  Id. at 55-56.  Since the dog sniff was conducted without a warrant, the search was held unreasonable and the evidence of drug activity was suppressed.  See id.

         [3].   132 S. Ct. 945 (2012).  The Court held that Fourth Amendment protections do not “rise or fall” with the Katzformulation, and that the Amendment is also concerned with government trespass.  Id. at 950.

         [4].   389 U.S. 347 (1967).

         [5].   277 U.S. 438 (1928).

         [6].   Id. at 464.

         [7].   See, e.g., Orin Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 820 (2004) (noting, in this pre-Jones article, that the touchstone of the Fourth Amendment is the “reasonable expectation of privacy” test which first appeared in Justice Harlan’s Katz concurrence).

         [8].   Katz, 389 U.S. at 361 (Harlan, J., concurring).

         [9].   Jones, 132 S. Ct. at 950.

       [10].   Id. at 952.

       [11].   Id. at 950 (citation omitted).

       [12].   A “search” requires probable cause and a warrant.  So the syllogism continues: if the government is trespassing, it quite obviously does not have a warrant, and is thus committing an unreasonable search within the meaning of the Fourth Amendment.

       [13].   James, 132 S. Ct. at 954.

       [14].   Id. at 957 (Alito, J., concurring).  Justice Alito’s analysis began: “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”  Id. at 958.

       [15].   Professor Kerr first identified this issue in an article in The Volokh Conspiracy.  See Orin Kerr, Supreme Court Hands Down Florida v. Jardines, Volokh Conspiracy (Mar. 26, 2013 10:38 AM), http://www.volokh.com/2013/03

       [16].   Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (quoting Jones, 132 S. Ct. at 950-51 n.3 (emphasis added)).

       [17].   See id. at 1417.

       [18].   See id. at 1418 (Kagan, J., concurring).

       [19].   See id. at 1420 (Alito, J., dissenting).

       [20].   Jardines v. Florida, 73 So. 3d 34, 61 (Fla. 2011) (Polston, J., dissenting) (“[I]t is undisputed that one dog and two officers were lawfully and briefly present near the front door of Jardines’ residence when the dog sniff at issue in this case took place.”).

       [21].   State v. Jardines, 9 So. 3d 1, 4 (Fla. Dist. Ct. App. 2008) (“[T]he officer and the dog were lawfully present at the defendant’s front door . . .”).

       [22].   See supra text accompanying note 16.

       [23].   See Jardines, 73 So. 3d at 46.

       [24].   See supra note 21.

       [25].   At oral argument, Justice Alito explicitly asked counsel for the defendant why the Court should not accept as a statement of Florida law that no trespass occurred, indicating some uneasiness from the bench with re-deciding an issue of state tort law and causing friction between the federal and state courts in our system of dual sovereignty.  See Transcript of Oral Argument at 59, Florida v. Jardines, 133 S. Ct. 1409 (2013) (No. 11-564), available athttp://www.supremecourt.gov/oral_arguments/argument_transcripts/11-564.pdf.

       [26].   See Jardines, 133 S. Ct. at 1417.

       [27].   That is, there is no reason to think the finding of “no trespass” would be re-visited in any way.

       [28].   See supra note 21.

       [29].   To be clear, since there is no federal law of trespass, a judgment from the Supreme Court holding that a search had occurred due to a governmental trespass would effectively reverse the Florida courts on their resolution of an issue of common law.

       [30].   See infra note 34.

       [31].   See generally David L. Shapiro, Jurisdiction and Discretion, 60. N.Y.U. L. Rev. 543 (1985) (outlining the various ways in which the Supreme Court could exercise discretion on review of state court cases and concluding the discretion is necessary to avoid undue interference with the states).

       [32].   See supra note 16.

       [33].   See supra text accompanying notes 18-19.

       [34].   In conversations with Judge Raymond Lohier of the Second Circuit Court of Appeals, Judge John Koeltl of the District Court for the Southern District of New York, and Professor Helen Herhskoff of NYU Law, all told me that they had strong doubts that the Court would decide the Jardines case on anything but the REOP rationale, since going beyond that issue, and onto the new Jones test, would require a disagreement with the Florida courts on whether a common law trespass had occurred.  They all echoed Justice Alito’s concern of failing to accept the state courts’ resolution as an authoritative statement of Florida law.  Discussion with Judge Raymond Lohier, 2nd Circuit Court of Appeals and Judge John Koeltl, United States District Court for the Southern District of New York, in New York City., N.Y. (February 27, 2013) during New York University School of Law Constitutional Litigation Seminar, held at the United States District Court for the Southern District of New York, 500 Pearl Street, New York, NY; Interview with Helen Hershkoff, Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties, New York University School of Law, in New York City., N.Y. (March 4, 2013).

       [35].   The Supreme Court has certiorari jurisdiction to review state court judgments under 28 U.S.C. § 1257 (2012).  It has been relatively clear since Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), that the Supreme Court, on review of a state court judgment, can review antecedent state law questions, which are those that must be decided in order to ultimately determine whether the state court properly decided an issue of federal law.  However, the Supreme Courts (and federal courts more generally) has adopted a set of abstention doctrines under which jurisdiction—and competence to address a certain issue—may be declined for reasons of equity, comity, or federalism.  The federal courts have not held fast to Justice Marshall’s admonition inCohens v. Virginia: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.  The one or the other would be treason to the Constitution.”  Cohens v. Virginia, 19 U.S. 264, 404 (1821).

       [36].   Shapiro, supra note 31 at 547.

       [37].   See generally, Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).  Pullman abstention involves staying a federal court action, but retaining jurisdiction, so that the state courts have an opportunity to interpret the constitutionally-suspect statute in question and thereby, potentially avoid the need for a constitutional decision.

       [38].   See Burford v. Sun Oil Co., 319 U.S. 315 (1943).  Under Burford abstention, a federal court sitting in diversity may stay its hand where the state courts have greater expertise in a question of state policy, and the question is of substantial importance to a state administrative scheme.  The idea is that the federal court should hesitate before interfering in a state administrative scheme in which the state courts play a vital role.

       [39].   See generally, Younger v. Harris, 401 U.S. 37 (1971).  Younger abstention is based on a rule of equity which forbids a court of equity from enjoining ongoing criminal proceedings, even where the individual being prosecuted is raising federal constitutional claims.  Also at play is a principle of comity, which holds that the state court will give the federal constitutional defenses in the criminal case a fair shake.

By Elizabeth Sargeant

The Constitution protects each of us from unreasonable searches and seizures.[1] Police officers may not enter our homes without a warrant issued by a neutral magistrate on a showing of probable cause.[2] This procedural safeguard may be overlooked, however, when exigent circumstances arise and make a warrantless search reasonable.[3] Exigent circumstances include emergency, hot pursuit, and destruction of evidence.[4] An exception to the exigent circumstances rule precludes its use to justify a warrantless search when the officers themselves created the exigency.[5]

While courts agree that police-created exigencies do not fall within the exigent circumstances rule, lower federal and state courts have developed a number of tests to determine in what circumstances and in what sense police impermissibly create an exigency. Some factors the courts consider include the subjective intentions of the officers, the opportunity to obtain a warrant, the reasonableness of the investigative tactics, whether police actions violated any laws, and the degree to which it was foreseeable that their actions would create an exigency.[6]

The Supreme Court settled a circuit split on exigent circumstances cases in Kentucky v. King, holding that “the exigent circumstances rule applies when the police do not gain entry to the premises by means of an actual or threatened violation of the Fourth Amendment.”[7] This decision will significantly impact claims brought under the Federal Constitution. The King test makes it more difficult for courts to invalidate those warrantless searches justified by the exigent circumstances rule. Fewer searches will be found unreasonable in post-hoc evaluations. Police in the field will have the discretion to enter a home without a warrant whenever they suspect that evidence is being destroyed, regardless of whether their conduct effectively led to the exigency, unless they violated the Fourth Amendment before the exigency arose.

This Note will focus on the proper test for determining when law enforcement agents impermissibly create exigent circumstances. Part I will provide the factual and procedural background of the King case as well as the Court’s holding and its reasoning. Part II will explain the Fourth Amendment and what it requires, and will briefly touch on the historical need for its protections. It will discuss the exigent circumstances rule, when it may be used, and the one exception to that rule—the police-created exigency restriction. It will describe the tests used to determine when an exigency is police created. Finally, Part III will look to the future and evaluate the exigent circumstances rule in light of the King decision. It will then provide an alternative solution better suited to the problem than the King test.

I. The Case: Kentucky v. King

A. The Facts

The facts of the King case differ from the typical “knock, announce, hear movement behind the door, and enter without a warrant” fact pattern of most exigent circumstances cases. The situation began when police set up a controlled sale of crack cocaine outside the apartment complex where the defendant, Hollis King, lived.[8] For clarity, it should be noted that the controlled sale involved a suspect and transaction entirely unrelated to King. After the sale, an observing officer radioed to other nearby officers to “move in on the suspect.”[9] He noted that the suspect was “moving quickly toward the breezeway of an apartment building”[10] and told them to hurry.[11] As the officers arrived at the breezeway, they heard one of the rear apartment doors shut but did not see which door the suspect entered.[12] They noticed a strong odor of marijuana issuing from the left rear apartment, which led them to believe that the door had recently been opened and shut and that the suspect had entered that apartment.[13] The officers knocked on this door and identified themselves as police.[14] After the knock, they heard things being moved around inside.[15] Believing that the people inside were in the process of destroying evidence, the officers entered the apartment.[16] The officers found the defendant and two others but not the suspect of their pursuit.[17] One of the individuals in the apartment with King was smoking marijuana.[18] While conducting a protective sweep of the apartment, officers found marijuana and cocaine in plain view.[19]

King was charged with trafficking a controlled substance, possession of marijuana, and being a persistent felony offender.[20] The trial court denied his motion to suppress the evidence found during the warrantless search on the basis that exigent circumstances justified the warrantless entry.[21] King appealed the denial of his motion to suppress, arguing that the search of his apartment was “conducted in violation of the Fourth Amendment to the United States Constitution because it was unsupported by probable cause and an exigent circumstance.”[22] The state intermediate appellate court affirmed the ruling of the trial court.[23]

B. The Kentucky Supreme Court Decision

The Kentucky Supreme Court reversed, finding that the police created the exigent circumstances on which they relied to justify the search.[24] In reaching this conclusion, the court determined that it was reasonably foreseeable that “knocking on the apartment door and announcing ‘police’ after having smelled marijuana emanating from the apartment, would create the exigent circumstance relied upon, i.e. destruction of evidence.”[25] The court further noted that when police “unnecessarily announce their presence, and this creates the fear that evidence will be destroyed, police have created their own exigency, and cannot rely on the fear of evidence being destroyed as a justification for a warrantless entry.”[26]

C. The Supreme Court Decision

1. The Majority Opinion

The Supreme Court granted the Commonwealth’s petition for certiorari[27] and reversed the decision of the Kentucky Supreme Court.[28] The Court held that “the exigent circumstances rule applies when the police do not gain entry to [the] premises by means of an actual or threatened violation of the Fourth Amendment.”[29] Explaining its reasoning, the Court stated that “warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment.”[30] It follows that exigent circumstances are sufficient justification for a warrantless search “when the conduct of the police preceding the exigency is reasonable in the same sense.”[31] The Court defined police actions as reasonable when the officers do not “engag[e] or threaten[] to engage in conduct that violates the Fourth Amendment.”[32]

Applied to the facts, the Court found “no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment.”[33] Therefore, their conduct was “entirely consistent with the Fourth Amendment,”[34] and the exigent circumstances rule applied. Accordingly, the Court reversed the Kentucky Supreme Court’s decision.[35]

2. The Dissenting Opinion

Justice Ginsburg, the lone dissenter, opposed the majority’s adoption of such a lenient standard. She called the decision a “reduction of the Fourth Amendment’s force”[36] and believed that the decision would provide officers with a way to routinely dishonor the warrant requirement in drug cases.[37] Justice Ginsburg framed the issue as whether “police, who could pause to gain the approval of a neutral magistrate, [may] dispense with the need to get a warrant by themselves creating exigent circumstances[.]”[38] She answered no and argued that the exigency must exist when law enforcement officers arrive at the scene, rather than afterwards as a result of their own conduct.[39]

Justice Ginsburg reminded the Court that the police bear the burden of proving an emergency to justify a warrantless search.[40] She argued that Kentucky failed to meet this burden because nothing in the record indicated that the occupants were concerned about police proximity prior to the officers’ knock and announce.[41] Since drug possessors generally do not destroy their drugs absent fear of discovery, it was unlikely that evidence would have been destroyed while the police sought a warrant.[42] Further, according to Justice Ginsburg and the Kentucky Supreme Court, the police had probable cause to obtain a warrant.[43] “Wasting a clear opportunity to obtain a warrant . . . disentitles the officer from relying on subsequent exigent circumstances.”[44] Therefore, there was “no reason to contract the Fourth Amendment’s dominion.”[45]

3. A Note Regarding Federalism

It is important to note that a Fourth Amendment challenge is not the only argument a suspect can assert as a defense against warrantless searches. In every state constitution, there is a protection analogous to the Fourth Amendment in the Federal Constitution.[46] A suspect may raise a state constitutional challenge as well as a federal constitutional challenge when he believes his rights are violated.[47] The Supreme Court’s test and reasoning in King apply only to interpretations of Fourth Amendment rights. State courts are free to grant more protection to their citizens by interpreting their state constitutions differently. Therefore, while the Court’s test must be applied to Fourth Amendment challenges and is a persuasive authority for state courts to follow, these other courts are not required to follow the King test when evaluating claims under state constitutions.

II. Fourth Amendment Jurisprudence and the
Exigent Circumstances Rule

A. The Fourth Amendment and What It Requires

The exigent circumstances rule would be unnecessary if not for the Fourth Amendment. It states:

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.”[48]

This text creates a constitutional mandate that “all searches and seizures . . . be reasonable.”[49]

The text of the Fourth Amendment speaks not only to the reasonableness of searches but also to the need for warrants and what is required to obtain a warrant. Though not stated in the text, the Supreme Court has inferred from this language the requirement that “a warrant must generally be secured.”[50] “It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.”[51] When a warrant is required, it must be based on probable cause, supported by a sworn affidavit,[52] and issued by a “neutral and detached”[53] magistrate. The affidavit must “describe[] particularly the place of the search”[54] and the “type of evidence sought.”[55]

Along with the text, it is important to consider the historical backdrop of the Fourth Amendment. The Court has noted that the Fourth Amendment “was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of ‘the sanctity of a man’s home and the privacies of life’ from searches under indiscriminate, general authority.”[56] General warrants were notoriously used in eighteenth-century England against critics of the government.[57] General warrants did not specify the place to be searched or the items to be seized.[58] Writs of assistance, used during the American colonial period, similarly authorized English customs agents to search private premises without specifying where to search or what could be seized.[59] In reaction to these abuses of power, “[p]rotection [from invasions into one’s home] was assured by prohibiting all ‘unreasonable’ searches and seizures, and by requiring the use of warrants.”[60] This principle that the home was especially sacred and needed protection from government intrusion is reflected in Lord Camden’s oft-quoted assertion that “the great end, for which men entered into society, was to secure their property.”[61]

B. The Exigent Circumstances Rule

As this history demonstrates, “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”[62] The Court has emphasized that “the Fourth Amendment . . . draw[s] a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”[63] Accordingly, if exigent circumstances do exist, law enforcement officers may cross this threshold and enter a residence without a warrant. This is known as the exigent circumstances rule, which the Court in King described as a “well-recognized exception” that 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.”[64]

To determine whether exigent circumstances exist, courts look to a number of factors. The most widely accepted list of factors was enumerated by the D.C. Circuit in Dorman v. United States[65] and summarized by the Second Circuit in United States v. MacDonald.[66] The factors include the gravity of the offense, whether the suspect is armed, whether the officers have probable cause to believe that the suspect committed the crime and “strong reason to believe”[67] that the suspect is inside the premises, the “likelihood that the suspect will escape if not swiftly apprehended,”[68] and “the peaceful circumstances of the entry.”[69] The first factor, the gravity of the offense, is especially important, as it has been endorsed by the Supreme Court.[70]

Once courts establish that an exigency did in fact arise, the exigent circumstances rule applies. This rule is a constitutionally permissible exception to the warrant requirement because “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”[71] Thus, “[w]here there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.”[72] Therefore, the exigent circumstances rule is constitutional because the warrantless searches it permits are not unreasonable within the meaning of the Fourth Amendment.

Turning to King, the exigent circumstance at issue was “the need to ‘prevent the imminent destruction of evidence.’”[73] The Court has acknowledged two other situations that trigger the exigent circumstances rule: when an officer is responding to an emergency and when an officer is in “hot pursuit of a fleeing felon.”[74] Neither of these circumstances arose in King, so this Note will focus only on the imminent destruction of evidence.[75]

This exigency often arises when police use the knock-and-talk investigative technique. A knock-and-talk occurs when an officer knocks on the door of a residence, identifies himself as a police officer, and asks to speak with the occupants. Such encounters between the police and residents of a home are not considered searches or seizures within the meaning of the Fourth Amendment.[76] Nor is there a constitutional issue with officers waiting to obtain a warrant.[77] In King, the Court ruled that there exist a number of valid reasons as to why an officer might wish to conduct a knock-and-talk rather than obtain a warrant.[78]

C. The Restriction on Police-Created Exigencies

With the widespread use of the knock-and-talk comes the potential for abuse. “The tactic can create exigent circumstances, resulting in illegal searches and seizures, when an occupant reacts to police presence with more than a mere grant or denial of consent to search.”[79] One method of curbing potential abuse of the knock-and-talk technique is the restriction on the use of police-created exigent circumstances to justify subsequent warrantless searches. “[P]olice may not rely on the need to prevent destruction of evidence when that exigency was ‘created’ or ‘manufactured’ by the conduct of the police.”[80]

That the conduct of police has created the exigency, however, is not the end of the analysis. The inquiry does not end with this simple question because “in some sense the police always create the exigent circumstances that justify warrantless entries and arrests.”[81] What exactly the inquiry should focus on is a difficult question and was at issue before the Court in King. As the Court noted, “[T]he lower courts have held that the police-created exigency doctrine requires more than simple causation, but [they] have not agreed on the test to be applied.”[82] These tests include the “lawful manner” test, the “bad faith” test, the “reasonable foreseeability” test, the “standard or good investigative tactics” test, and the “probable cause and time to secure a warrant” test.[83] Other scholars have named these tests according to the circuit in which they originated or by placing the tests into a few general categories.[84] This Note follows the approach used by the Court in King to identify the different tests used by lower courts.

D. The Tests for Determining When an Exigency is Police Created

1. Lawful Manner

The lawful manner test is most closely aligned with the Court’s eventual holding in King. In King, the Court mentioned two cases that employed the lawful manner test: United States v. MacDonald[85] and State v. Robinson.[86] In MacDonald, a knock-and-talk drug case, the Second Circuit held that “when law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent circumstances.”[87] The court noted that the most important factor in its decision was that “the agents’ conduct was perfectly proper. By knocking and announcing themselves, they acted in accordance with the law.”[88] The underlying belief of those who advocate the use of this test is that the suspect’s reaction, “attempting to escape, destroy evidence, or engage in any other unlawful activity,”[89] is what creates the exigency, not the officer’s conduct. This is so even though “the suspects may reasonably be expected to behave illegally.”[90] In Robinson, the Wisconsin Supreme Court reasoned similarly, stating that “[i]t was not the officers’ knock and announcement that created the exigent circumstances . . . . Rather, [the suspect’s] choice to run from the door created the exigent circumstances that justified the officers’ warrantless entry.”[91] Thus, the lawful manner test holds that when an officer’s conduct conforms to the law, he does not create the exigent circumstance, and the exigent circumstances rule applies.

The lawful manner test has been criticized by Supreme Court Justice Ginsburg as “arm[ing] the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.”[92] A Second Circuit judge similarly criticized this test for “effectively creat[ing] a situation in which the police have no reason to obtain a warrant when they want to search a home with any type of connection to drugs.”[93] Another commentator noted that such a test “seems totally unmoored from the purpose of the exigent circumstances exception.”[94] The purpose of the restriction on police-created exigencies “is to recognize that [they] are not true exigencies. If the police opt to do the thing that creates the emergency, then there was no genuine emergency.”[95]

Regardless of these concerns, the Supreme Court ruled in favor of a very similar test. It emphasized that its conclusion “follows directly and clearly from the principle that permits warrantless searches in the first place,”[96]—that warrantless searches must be reasonable. Put another way, “the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable”[97] within the meaning of the Fourth Amendment. Thus, under this rule, so long as officers’ conduct does not violate the Fourth Amendment, they have not created the exigent circumstances.[98]

2. Bad Faith

The bad faith test looks to the subjective intentions of the officers to determine if the exigency was police created.[99] Courts in the First, Fifth, Sixth, and D.C. Circuits all consider the intentions of the officer in their police-created exigency calculus.[100] This test asks “whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement.”[101] The officers’ underlying purpose cannot be to subvert the warrant requirement, and officers may not manufacture a situation for the purpose of creating an exigency.[102] The result is that “exigent circumstances do not excuse [a warrantless search] when those circumstances are created by [a] . . . deliberate[] delay [in] obtaining a warrant.”[103]

The bad faith test has been heavily criticized as “fundamentally inconsistent with our Fourth Amendment jurisprudence.”[104] Furthermore, it is often difficult for courts, on a post-hoc basis, “to precisely determine what an officer intended to accomplish.”[105] Most critically, the subjective intentions of the officers “do not force a suspect to respond to a knock-and-talk by destroying evidence or otherwise creating an exigency.”[106] Indeed, in a number of jurisdictions that consider the subjective intentions of the officers, it is only one factor in a multipart test to determine whether the police created the exigency. The Fifth Circuit uses a test that involves both a subjective component and a reasonableness inquiry.[107] Similarly, the Sixth Circuit uses other factors like the existence of probable cause and the opportunity to secure a warrant in evaluating officers’ subjective intentions.[108]

3. Reasonable Foreseeability

When considering whether an exigency was created by police, the reasonable foreseeability test asks “whether the danger of destruction of the evidence was reasonably foreseeable” given the officers’ pre-exigency conduct.[109] Subjective intent is irrelevant because the focus is on the likely result of an officer’s conduct. In the context of a controlled sale of drugs, the Arkansas Supreme Court in Mann v. State explained that the officers “reasonably could have foreseen that their decision to approach [Defendant’s] residence without a warrant immediately after completing a controlled delivery of methamphetamine would likely result in an attempt to destroy the evidence.”[110]

The Court in King rejected this test because it would lead to an “unacceptable degree of unpredictability.”[111] The dissent in Mann likewise refused to endorse this test. It faulted the test for failing to recognize that the suspect, not the officers, creates the exigency that leads to a warrantless search.[112]

Nevertheless, courts that employ this test ask “whether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry.”[113]

4. Standard or Good Investigative Tactics

A similar test considers the propriety of the investigative technique itself, rather than the foreseeability that an exigency will arise from an officer’s chosen tactic. The standard or good investigative tactics test focuses on how the exigent circumstance arose. The test is an “antecedent inquiry,” says the Eighth Circuit, “into the reasonableness and propriety of the investigative tactics that generated the exigency.”[114] The Fifth Circuit also uses this test as part of its two-pronged analysis. In Gould, the court explained that the first focus is on the subjective intentions of the officers.[115] Bad faith is sufficient but not necessary for the court to find that the exigency was impermissibly created by police. If the court does not find a showing of bad faith, it then asks “whether [the officers’] actions creating the exigency were sufficiently unreasonable or improper as to preclude dispensation with the warrant requirement.”[116] The court requires that the tactics or procedures followed by officers be reasonable and in conformity with standard or good law enforcement practices in order to use the exigent circumstances rule.[117]

In King, the Court faulted this test for failing to provide clear guidance to officers on the scene and for permitting courts to make “judgments on matters that are the province of . . . law enforcement agencies.”[118]

5. Probable Cause and Time to Secure a Warrant

Another test considers “whether the police had the opportunity to seek a warrant.”[119] It appears that this is only a factor that courts consider and not a dispositive test. However, for courts that look to the foreseeability or reasonableness of police tactics, the opportunity to secure a warrant is often an important factor. In Mann, the Arkansas Supreme Court quoted Fourth Amendment scholar Wayne LaFave: “[I]n cases where police did not avail themselves of an earlier opportunity to get a warrant, this has been a dominant factor in the holdings that there were not exigent circumstances.”[120] This is logical given that the “entire justification for the exigent-circumstances exception to the warrant requirement is the urgency of the situation. . . . Clearly, if officers have the opportunity to seek a warrant, the situation is not one of urgency.”[121] The Mann court stated emphatically:

[W]here the police, with ample probable cause, time to obtain a warrant, and time for reflection, choose to pursue a course of action which they know at the outset will present a situation requiring an emergency entrance into a person’s home, we hold that they should obtain a warrant and that they may not rely on the expected exigency to justify their entry.[122]

Using this test, some courts have identified other investigative tactics that would avoid warrantless searches. For example, in Mann, the court noted that officers in the position to make a knock-and-talk after a controlled sale have two better alternatives: continue surveillance while an officer leaves to secure a search warrant or obtain an anticipatory search warrant prior to the controlled delivery.[123]

The Court in King, however, rejected this test and these alternatives because “[t]here are many entirely proper reasons why police may not want to seek a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired.”[124] For example, the police may want to speak to occupants simply to glean more information before deciding to obtain a warrant. Alternatively, officers may engage in a knock-and-talk in hopes of obtaining consent to search “because doing so is simpler, faster, and less burdensome than applying for a warrant.”[125] The Court emphatically restated its opinion from Hoffa v. United States[126] that “[l]aw enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause.”[127]

Thus, this test, like the others, has both benefits and potential pitfalls. While the use of this test may offer insight into whether officers acted in bad faith or whether their tactics were improper, there are a number of lawful reasons officers might fail to secure a warrant in the face of probable cause.

6. The King Test

In King, the defendant argued for a new test that would prevent officers from using the exigent circumstances rule when they “engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.”[128] He argued that factors such as an officer’s volume and tone of voice as well as the forcefulness of his knock should contribute to the determination.[129] The Court summarily dismissed his suggestion. It emphasized that “the ability of law enforcement officials to respond to an exigency cannot turn on such subtleties”[130] and noted that a forceful knock or loud voice is often necessary to properly announce and identify their presence.[131]

III. The Future of the Exigent Circumstances Rule
After King, and an Alternative

The Supreme Court faced a very tricky issue in King. Blogger Orin Kerr perfectly captured this dilemma:

How do you distinguish police-created exigent circumstances from suspect-created exigent circumstances? On one hand, you don’t want to make it easy for the police to circumvent the warrant requirement. On the other hand, you don’t want the police to be unable to rely on genuine exigencies created by their innocuous conduct. The question is, what test can achieve both goals at once?[132]

While the Court did not address this dichotomy, the structure and content of its decision shows that it, too, felt the great challenge this case presented. The Court chose the test it thought best achieved these goals: the lawful manner test, refined to address criticisms that this test did not properly delineate what lawful conduct meant. The Court ultimately felt that any conduct that does not violate the Fourth Amendment is lawful and does not create the exigent circumstance. The next part of the Court’s decision addressed the rejected tests, explaining the problems associated with each test. This suggests that the Court knew its test was not a perfect solution to every theoretical and practical problem proposed but wanted to show why the other tests were less preferable.

The Court tackled this problem with a grand effort. For the most part, its criticisms of the other tests were well founded and persuasive. The Court failed, however, to actually acknowledge the obvious problems with the test it chose. Because of the problematic implications of the King test, I propose a new test that would provide a better solution to determine what makes a police-created exigency.

A. The Future of the Exigent Circumstances Rule

First, consider why the Supreme Court’s chosen solution fails. One must only look as far as the King dissent to begin to see the problem. Justice Ginsburg criticizes the majority for “arm[ing] the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.”[133] These powerful words explain the most troubling aspect of the Court’s decision: it will absolutely cripple the warrant requirement in the context of drug cases.

One unique thing about drugs, as evidence, is that they are small and easily disposed of. Thus, the principal evidence in a drug investigation can be destroyed immediately by flushing it down the toilet while police wait at the door. Because of this potential for destruction, officers often express concern that evidence is in imminent danger of destruction. The King test provides officers with the ability to break in while a suspect attempts to destroy evidence, so long as the officers do not engage in, or threaten to engage in, conduct that violates the Fourth Amendment. Put another way, officers are permitted to engage in any conduct that does not violate the Fourth Amendment in order to manufacture a situation in which they hope, or even expect, the suspect will respond by destroying evidence. Why would an officer, in investigating a drug case, seek a warrant when he could conduct a search by knocking on the door and entering when the suspect failed to answer right away? In short, he would not seek a warrant. As per the Supreme Court’s decision, this situation is acceptable. Therefore, Justice Ginsburg is quite right when she states that the decision provides officers with a way to dishonor the warrant requirement in drug cases.

The King test is also problematic because the line it draws is arbitrary and unrelated to the reason the line is needed.[134] Fourth Amendment jurisprudence draws a line, for purposes of the exigent circumstances rule, between exigencies that arise naturally before the officers’ actions and those that occur as a result of police conduct. The purpose of this line is to weed out true exigencies from situations that could have been avoided. A test that only requires that police conduct conform to the Fourth Amendment does not distinguish when an exigency is police created. Rather, it suggests that even if the situation is manufactured by police, it is permissible unless police conduct violates the Fourth Amendment. Rather than recognizing true exigencies and protecting an officer’s ability to respond to them, the King test allows police to effectively manufacture an exigency but does not label it police created, thus allowing officers to rely on it to conduct a warrantless search. Because the line the King test draws is divorced from the purpose of the police-created exigency exception, it is not the proper test.

After King, in the context of drug cases, the exigent circumstances rule may be used without restriction to justify a warrantless search whenever police believe evidence is being destroyed. There is no need to secure a warrant because the officers are permitted to manufacture a situation in which the suspect is expected to destroy evidence. In these circumstances, the officers now have the Court-sanctioned ability to break into the premises without a warrant. Just as Justice Ginsburg predicted, in the post-King world of criminal procedure, law enforcement agents will be able to regularly disregard the Fourth Amendment in drug cases.

B. An Alternative: The Foreseeability Plus Probable Cause Test

I propose an alternative test—the foreseeability plus probable cause test. In this two-part conjunctive test, police impermissibly create exigent circumstances when two elements are present: first, when it is reasonably foreseeable that the officers’ actions will lead to an exigency, and second, when the officers have both probable cause and time to obtain a warrant. Initially, this test looks very similar to the test used by the Arkansas Supreme Court in Mann v. State.[135] There are subtle differences, however, that make this test more tenable than the one adopted in Mann. There, the court announced the test as “[w]hether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry.”[136] The court spoke a great deal about the opportunity to seek a warrant, but it was only one factor in assessing the officers’ investigative tactics. In contrast, the foreseeability plus probable cause test considers the opportunity to seek a warrant an essential element of a police-created exigency.

The value in this alternative test is that, by combining the reasonable foreseeability test and the probable cause and time to secure a warrant test, the problems associated with each test individually are reduced. In their individual capacities, both limit an officer’s ability to engage in completely lawful activity. Under the reasonable foreseeability test, an officer cannot, consistent with the exigent circumstances rule, engage in behavior that could reasonably be anticipated to lead to an exigency. This is so even if that exigency consists of the suspect destroying evidence. Put another way, an officer cannot do something if a reasonable officer could foresee it resulting in a suspect responding with illegal behavior, such as destroying evidence. This is an untenable solution. The police need to be able to respond to genuine exigencies and should not be prohibited from doing so because it is possible that an exigency could occur given their perfectly legal investigative tactics.

The probable cause and time to secure a warrant test is also flawed. Although it is usually used just as one part of a calculus, this test effectively requires police to stop their investigation the moment they have probable cause. If an exigency arises, police cannot respond to it because they had the opportunity to get a warrant but did not do so. There are a number of reasons police do not rush to the courthouse immediately upon the discovery of probable cause. The King majority lists four persuasive reasons for not seeking a warrant as soon as probable cause is acquired. For example, the police might want to speak with the residents to decide whether it is worthwhile to obtain a warrant.[137] Alternatively, the police may attempt to speak to the occupants in order to gain consent because it is simpler than seeking a warrant.[138] Another possibility is that the police want to gather more information before “submitting what might otherwise be considered a marginal warrant application.”[139] Finally, officers may want to gather more evidence so as to justify a broader search than would be permitted given the evidence currently available.[140] Thus, because there are many proper reasons why officers may wait to obtain a warrant, even after probable cause is established, this test forces officers to comply with a rule that is not required by the Constitution and that may hurt their investigation.

The foreseeability plus probable cause test does not completely eliminate these problems. In some situations, police would still be prevented from conducting a knock-and-talk and relying on the subsequent exigent circumstances to justify their warrantless search. This test would, however, draw a more balanced line between preventing the abuses that are associated with a very lenient test and permitting police to respond to genuine exigencies.

Turning to the requirements of the test, it looks first to whether it was reasonably foreseeable that police conduct would result in an exigency. This line of analysis is similar to the Mann test, although it requires only a consideration of foreseeability, without weighing other factors. If the exigency was not reasonably foreseeable, then the police did not impermissibly create the exigency, and the exigent circumstances rule applies. If, however, the exigency was a reasonably foreseeable result of the officer’s chosen conduct, then evaluate the officer’s opportunity to obtain a warrant. If the officer, at the time the exigency arose, lacked either probable cause or the temporal opportunity to obtain a warrant, then the officer did not create the exigency. If the officer did have probable cause and ample time to secure a search warrant, then the officer has met both prongs of this test, and he is deemed to have created the exigent circumstance, removing his search from the protection of the exigent circumstances rule.

The theory behind this test is that it is actually the officer’s bad faith intention—his decision to manufacture exigent circumstances to justify a warrantless search—that should prevent him from using the exigent circumstances rule. This test recognizes, however, that a subjective requirement in this situation is impractical. Inquiring into the subjective bad faith of each participating officer would be extremely burdensome on the courts. Furthermore, subjective tests promote inconsistent law enforcement when unseen factors rather than actual actions are evaluated.

Therefore, rather than using a subjective analysis, this test joins two key elements that together provide an accurate assessment of whether an officer acted intentionally to evade the warrant requirement. If both prongs of this test are met, then the situation is essentially one in which the officer knows that he might be forced, out of necessity, to conduct a search but still refuses to get a warrant. In this scenario, the exigency can hardly be considered an emergency, as the officer knew the situation might arise and deliberately failed to protect his investigation.

Arguably, there is no exigency if either of the prongs are met—if the exigency is reasonably foreseeable or if the officer neglects to obtain a warrant in the face of probable cause. However, as I have discussed above, there are situations in which innocuous police conduct might meet one of the prongs, and it would be both unfair and unnecessary to prevent police from using the exigent circumstances rule in those situations.


Undeniably, the issue before the Supreme Court in King was a tricky one. The Court chose a solution it believed flowed logically from the Fourth Amendment’s reasonableness requirement. This decision, however, failed to address the issue in a meaningful way. Instead of recognizing that there might not be a perfect solution and attempting to strike a balance between not giving police the go-ahead to ignore the warrant requirement, on one hand, and protecting their ability to rely on genuine exigencies, on the other, the Court chose to follow a different analysis entirely—one completely divorced from the actual problem.

Under the King test, in the drug context, police will have little incentive to obtain a warrant in advance. Instead, they can simply knock on a suspect’s door. Even if the officer has just witnessed a controlled delivery or, by other means of investigation, has ascertained probable cause, the officer can intentionally fail to secure a warrant and hope that the suspect responds like most do: by immediately attempting to destroy evidence. On the theory that the suspect’s attempt to destroy evidence rather than stand on his constitutional right to refuse the police entry is what creates the exigency, officers can manipulate the situation such that a warrant is not needed to conduct a search for evidence.

Rather than rely on the King test, a better analysis would involve looking to both the reasonable foreseeability of the officer’s chosen conduct and his opportunity to obtain a warrant. If it was reasonably foreseeable that his conduct would create an emergency situation requiring immediate entry into the premises, and he had probable cause and time to secure a warrant, then he has created the exigency and should not be permitted to use the exigent circumstances rule.

Fortunately, the Supreme Court’s reasoning extends only to Fourth Amendment issues. State courts are free to grant more protection to their citizens by interpreting their state constitutions differently. While the King test will be applied to Fourth Amendment challenges and is a persuasive authority for state courts to follow in interpreting analogous provisions of their own constitutions, these courts are not required to follow the King test for state constitutional cases and may provide additional protection against warrantless searches and seizures. Whether state courts adopt the reasoning of the Court in King or provide their citizens with a better balancing of the issues, only time will tell.[141]

[1]. U.S. Const. amend. IV.

[2]. Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972).

[3]. Mincey v. Arizona, 437 U.S. 385, 393–94 (1978).

[4]. Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

[5]. Kentucky v. King, 131 S. Ct. 1849, 1857 (2011).

[6]. Id. at 1859–62.

[7]. Id. at 1862.

[8]. Id. at 1854.

[9]. Id.

[10]. Id.

[11]. Id.

[12]. Id.

[13]. King v. Commonwealth, No. 2006-CA-002033-MR, 2008 WL 697629, at *1 (Ky. Ct. App. Mar. 14, 2008), rev’d, 302 S.W.3d 649 (Ky. 2010), rev’d, 131 S. Ct. 1849 (2011).

[14]. Kentucky v. King, 131 S. Ct. at 1854.

[15]. Id.

[16]. Id.

[17]. Officers eventually found the suspect from the controlled sale in the apartment on the right. Id. at 1854–55.

[18]. Id. at 1854.

[19]. Id.

[20]. King v. Commonwealth, No. 2006-CA-002033-MR, 2008 WL 697629, at *1 (Ky. Ct. App. Mar. 14, 2008), rev’d, 302 S.W.3d 649 (Ky. 2010), rev’d, 131 S. Ct. 1849 (2011).

[21]. Id. at *2.

[22]. Id.

[23]. Id. at *6.

[24]. Kentucky v. King, 131 S. Ct. at 1852.

[25]. King v. Commonwealth, 302 S.W.3d at 656.

[26]. Id.

[27]. Kentucky v. King, 131 S. Ct. at 1855.

[28]. Id. at 1864.

[29]. Id. at 1862.

[30]. Id. at 1858.

[31]. Id.

[32]. Id.

[33]. Id. at 1863.

[34]. Id.

[35]. Id. at 1863–64.

[36]. Id. at 1864 (Ginsburg, J., dissenting).

[37]. Id.

[38]. Id.

[39]. Id.

[40]. Id.

[41]. Id. at 1865.

[42]. Id.

[43]. Id.

[44]. Id. (quoting S. Saltzburg & D. Capra, American Criminal Procedure 376 (8th ed. 2007)).

[45]. Id. at 1866.

[46]. Marc L. Miller & Ronald F. Wright, Criminal Procedures: The Police 146 (4th ed. 2011).

[47]. It is unclear why King did not raise a challenge based on his state constitutional rights as well. A possible explanation is poor performance by his lawyer.

[48]. U.S. Const. amend. IV.

[49]. Kentucky v. King, 131 S. Ct. at 1856.

[50]. Id.

[51]. Trupiano v. United States, 334 U.S. 699, 705 (1948), overruled in part by United States v. Rabinowitz, 339 U.S. 56 (1950).

[52]. Groh v. Ramirez, 540 U.S. 551, 557 (2004).

[53]. Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972).

[54]. Groh, 540 U.S. at 557.

[55]. Id.

[56]. Warden v. Hayden, 387 U.S. 294, 301 (1967) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)); see also Payton v. New York, 445 U.S. 573, 583 (1980) (“[I]ndiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”).

[57]. See David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1805 (2000).

[58]. See Miller & Wright, supra note 46, at 140.

[59]. Id. at 142.

[60]. Hayden, 387 U.S. at 301.

[61]. Id. at 303 (quoting Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.); 19 How. St. Tr. 1029, 1066).

[62]. Payton v. New York, 445 U.S. 573, 586 (1980).

[63]. Id. at 590.

[64]. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).

[65]. 435 F.2d 385, 392–93 (D.C. Cir. 1970).

[66]. 916 F.2d 766, 769–70 (2d Cir. 1990); John Mark Huff, Warrantless Entries and Searches Under Exigent Circumstances: Why Are They Justified and What Types of Circumstances Are Considered Exigent?, 87 U. Det. Mercy L. Rev. 373, 412 (2010).

[67]. MacDonald, 916 F.2d at 770.

[68]. Id.

[69]. Id.

[70]. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (“[A]pplication of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed.”).

[71]. Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

[72]. Roaden v. Kentucky, 413 U.S. 496, 505 (1973).

[73]. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (quoting Brigham City, 547 U.S. at 403).

[74]. See Vale v. Louisiana, 399 U.S. 30, 35 (1970).

[75]. Kentucky v. King, 131 S. Ct. at 1856.

[76]. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”).

[77]. Hoffa v. United States, 385 U.S. 293, 310 (1966) (“Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause . . . .”).

[78]. Kentucky v. King, 131 S. Ct. at 1860–61.

[79]. Bryan M. Abramoske, It Doesn’t Matter What They Intended: The Need for Objective Permissibility Review of Police-Created Exigencies in “Knock and Talk” Investigations, 41 Suffolk U. L. Rev. 561, 565 (2008).

[80]. Kentucky v. King, 131 S. Ct. at 1857.

[81]. United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990).

[82]. Kentucky v. King, 131 S. Ct. at 1857.

[83]. Id. at 1858–61.

[84]. See, e.g., Abramoske, supra note 79, at 571–78; Katherine A. Carmon, Don’t Act Like You Smell Pot! (At Least, Not in the Fourth Circuit): Police-Created Exigent Circumstances in Fourth Amendment Jurisprudence, 87 N.C. L. Rev. 621, 627–28 (2009).

[85]. 916 F.2d 766 (2d Cir. 1990).

[86]. 786 N.W.2d 463 (Wis. 2010).

[87]. MacDonald, 916 F.2d at 772.

[88]. Id. at 771.

[89]. Id.

[90]. Id.

[91]. Robinson, 786 N.W.2d at 476.

[92]. Kentucky v. King, 131 S. Ct. 1849, 1864 (2011) (Ginsburg, J., dissenting).

[93]. Robinson, 786 N.W.2d at 484 (Bradley, J., dissenting) (quoting United States v. Ellis, 499 F.3d 686, 691 (7th Cir. 2007)).

[94]. Orin Kerr, Police-Created Exigent Circumstances in Kentucky v. King, SCOTUSblog (Jan. 5, 2011, 1:44 AM), http://www.scotusblog.com/2011/01

[95]. Id.

[96]. Kentucky v. King, 131 S. Ct. at 1857–58.

[97]. Id. at 1858.

[98]. Id.

[99]. E.g., United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004), abrogated by Kentucky v. King, 131 S. Ct. 1849.

[100]. See United States v. Chambers, 395 F.3d 563, 566 (6th Cir. 2005); Gould, 364 F.3d at 590; United States v. Socey, 846 F.2d 1439, 1448 (D.C. Cir. 1988); United States v. Rengifo, 858 F.2d 800, 804 (1st Cir. 1988).

[101]. Gould, 364 F.3d at 590.

[102]. See Socey, 846 F.2d at 1448.

[103]. Rengifo, 858 F.2d at 804 (internal quotation marks omitted).

[104]. Kentucky v. King, 131 S. Ct. at 1859.

[105]. Abramoske, supra note 79, at 579.

[106]. Id.

[107]. See, e.g., United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004), abrogated by Kentucky v. King, 131 S. Ct. 1849.

[108]. See United States v. Chambers, 395 F.3d 563, 569 (6th Cir. 2005) (“[T]he failure to seek a warrant in the face of plentiful probable cause . . . meet[s] the requirement of ‘some showing of deliberate conduct on part of the police evincing an effort to evade the warrant requirement.’”), abrogated by Kentucky v. King, 131 S. Ct. 1849. Thus, the Sixth Circuit was not focusing solely on intent but rather whether the officers’ actions objectively manifest a purposeful avoidance of obtaining a warrant.

[109]. Mann v. State, 161 S.W.3d 826, 832 (Ark. 2004), abrogated by Kentucky v. King, 131 S. Ct. 1849.

[110]. Id.

[111]. Kentucky v. King, 131 S. Ct. at 1859.

[112]. Mann, 161 S.W.3d at 839 (Glaze, J., dissenting).

[113]. Id. at 834 (majority opinion).

[114]. United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990).

[115]. United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004), abrogated by Kentucky v. King, 131 S. Ct. 1849.

[116]. Id.

[117]. Id. at 591.

[118]. Kentucky v. King, 131 S. Ct. at 1861.

[119]. Mann v. State, 161 S.W.3d 826, 832 (Ark. 2004), abrogated by Kentucky v. King, 131 S. Ct. 1849.

[120]. Id. at 835.

[121]. Id. at 832 (internal quotation marks omitted).

[122]. Id. at 835 (quoting State v. Santana, 586 A.2d 77, 83 (N.H. 1991)).

[123]. Id. at 832.

[124]. Kentucky v. King, 131 S. Ct. at 1860.

[125]. Id.

[126]. 385 U.S. 293 (1966).

[127]. Kentucky v. King, 131 S. Ct. at 1860–61 (quoting Hoffa, 385 U.S. at 310).

[128]. Id. at 1861.

[129]. Id.

[130]. Id.

[131]. Id.

[132]. Orin Kerr, Choosing the Rule for Police-Created Exigencies in Kentucky v. King, SCOTUSblog (May 17, 2011, 7:52 PM), http://www.scotusblog.com/2011/05/the-fourth-amendment-and-pragmatic-rulemaking/.

[133]. Kentucky v. King, 131 S. Ct. at 1864 (Ginsburg, J., dissenting).

[134]. Kerr, supra note 132.

[135]. See Mann v. State, 161 S.W.3d 826, 834 (Ark. 2004), abrogated by Kentucky v. King, 131 S. Ct. 1849; supra Part II.D.5.

[136]. Mann, 161 S.W.3d at 834.

[137]. Kentucky v. King, 131 S. Ct. at 1860.

[138]. Id.

[139]. Id.

[140]. Id.

[141]. On remand, the Kentucky Supreme Court overturned King’s conviction, holding that “the Commonwealth failed to meet its burden of demonstrating exigent circumstances justifying a warrantless entry.” King v. Commonwealth, No. 2008–SC–000274–DG, 2012 WL 1450081, at *3 (Ky. Apr. 26, 2012). On July 25, 2012, Kentucky filed a petition for writ of certiorari to the United States Supreme Court on two issues unrelated to the police created exigency doctrine. As of November 8, 2012, the Supreme Court has not yet acted on Kentucky’s petition.

* J.D. Candidate, 2013; College of William and Mary, B.A. 2010. The author would like to thank her family for their endless support and encouragement and the members of the Wake Forest Law Review for all their hard work on this piece.

By Eric J. Segall

The Supreme Court recently heard arguments in Fisher v. University of Texas at Austin,[1] a lawsuit challenging racial preferences used by the University of Texas to admit a diverse undergraduate class.  Although there are a number of uncertainties about the case—that is, will Justice Kennedy vote with the conservatives to end once and for all affirmative action in this country, and will the Court even reach the merits given the numerous jurisdictional obstacles to the case[2]—one thing is certain: Justice Thomas will vote to strike down the admissions program at the University of Texas and, if he writes an opinion, will once again argue (some might say rant) that our Constitution must be colorblind.  Justice Thomas will vote this way even though doing so is at odds with virtually everything Justice Thomas has ever publicly said about proper constitutional interpretation. The point of this Essay is to bring light to this troubling judicial hypocrisy.

Both in his opinions and public interviews, Justice Clarence Thomas often claims that fidelity to original intent and constitutional text is the most important element of constitutional interpretation.[3] He claims that the best way for a judge to keep his personal views out of his judicial decisions is through rigid adherence to the text and history of the Constitution.[4]

Despite this rhetoric, many of Justice Thomas’s decisions reflect an obvious disregard for text and history. Of course, we cannot expect complete consistency between a Justice’s overarching philosophy and his votes. In Thomas’s case, however, the gap is so large that there are only two possible explanations for the variance between his rhetoric and his results: bad faith or complete confusion.

A confused Justice (or even a Justice acting in bad faith) who also believed in significant judicial deference might bring dishonor to the Court but at least would not unduly interfere with important decisions of more accountable political actors like the officials at the University of Texas.  Unfortunately, Justice Thomas also happens to display an alarming lack of deference to the important policy choices of these officials.

I.  Confused Constitutional Interpretation

In a public interview, Justice Thomas once said the following about why he only hires law clerks who share his views on how to interpret the Constitution: “[T]he one thing that I won’t give ground on is the view that we have to adhere to [the Constitution] or to [a] statute. . . . Some people don’t think that. They think it’s a point of departure, and I don’t abide that here.”[5]  Thomas has also made it clear that he thinks a judge must try hard to push away his “racial, social, or religious background” when interpreting the Constitution and that a judge “must become almost pure, in the way that fire purifies metal, before he can decide a case. Otherwise, he is not a judge, but a legislator, for whom it is entirely appropriate to consider personal and group interests.”[6]

In his judicial decisions, Justice Thomas has at times applied this textualist approach. For example, he does not accept the Court’s substantive due process jurisprudence, which allows the Court to identify fundamental rights not explicitly mentioned in the Constitution (like the right to terminate a pregnancy).  He has said the following about that doctrine: “[A]ny serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does. I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”[7] He has made similar statements about the Dormant Commerce Clause, a doctrine the Court uses to limit discriminatory state legislation, but a doctrine not supported by any constitutional text.[8]

When the actual text of the Constitution is ambiguous, Justice Thomas purports to apply a strict originalist approach to constitutional interpretation. Relying on this theory, Thomas has hinted he might return to a nineteenth century understanding of the Commerce Clause, has said that the Establishment Clause should not be incorporated against the states, and has said that the Second Amendment protects an individual right to own guns.[9] At times, Justice Thomas goes to considerable lengths to defend what he believes is the original understanding of the Constitution and our political structure. For example, in his dissent in U.S. Term Limits v. Thornton,[10] Justice Thomas spent over eighty pages supporting his historical argument that the states should be allowed to impose term limits on members of Congress.[11]  In McDonald v. City of Chicago,[12] Justice Thomas devoted fifty-six pages to arguing that the historical background to the Fourteenth Amendment demonstrated that the right to own guns should be applied to the states not through the Due Process Clause, as the plurality held, but through the Privileges and Immunities Clause (a completely different and rarely used section of the Fourteenth Amendment).  Justice Thomas was the only Justice on the Court to embrace that position, which he defended on the basis of his unique views of the text and history of the Constitution.

Justice Thomas does not suggest that a rigid adherence to text and history is merely a tool that judges should use to interpret the Constitution, nor does he concede that, at times, other, more practical considerations or even precedent can trump text or history. Unlike Justice Scalia, he does not purport to be a “faint-hearted” originalist.[13] Rather, Justice Thomas has quite often argued that constitutional interpretation must be grounded in text and history (and not the philosophies of the Justices) to be legitimate.[14]

The problem with this approach is that Justice Thomas often reaches results obviously at odds with the text and history of the Constitution without giving any reasoned explanation for the inconsistency.  To provide just a few of many examples (other than affirmative action), Justice Thomas has interpreted the Eleventh Amendment, the text of which is completely clear and bars only suits brought against states by citizens “of another state,” to also prohibit suits by citizens of the same state as the defendant.[15]He has never provided an explanation as to how the phrase  “another state” can mean “the same state” and has never explored the original understanding of the Eleventh Amendment.  Justice Thomas has also never explained how the original understanding of the Tenth Amendment, or its clear text, supports an anticommandeering principle that prohibits Congress from requiring states to take action when Congress regulates interstate commerce.[16]  If anything, the original understanding of the Constitution suggests that the framers foresaw and understood that Congress could commandeer the states when exercising its enumerated powers.[17]  Yet, Justice Thomas supports the ahistorical and antitextual anticommandeering principle.

There are other examples of Justice Thomas ignoring original intent and clear history to reach results he prefers, but by far the most obvious, and perhaps the most important, is his approach to affirmative action cases. He has not only failed to conduct any serious historical evaluation of the constitutional issue, but he has affirmatively distorted facts, ignored clear history against his position, and overtly injected his own personal values and preferences into his decisions in a way he often decries as illegitimate and inappropriate when other Justices do the same.

II.  Affirmative Action

In his first written judicial opinion on affirmative action, Adarand Constructors, Inc. v. Pena,[18] Justice Thomas made it clear that he believes all racial preferences violate the Fourteenth Amendment, no matter what the motive and regardless of which governmental entity, state or federal, uses the classification. He wrote the following:

As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).

These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. . . . So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. . . .

In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple. [19]

Although Adarand involved a federal set-aside program for contractors, Justice Thomas has adhered to these views when voting to strike down racial preferences in graduate school admissions and undergraduate admissions, as well as in the use of racial balancing to counteract housing patterns leading to segregated public schools.[20] In these cases, Justice Thomas wrote passionately about the harm caused by racial preferences, his desire for a “color-blind” Constitution, and the societal need to abide by a formalistic view of racial equality. He wrote a long concurring opinion in the Court’s most recent affirmative action decision, setting forth his views that racial imbalance in public schools and segregation are not the same thing, that racially imbalanced schools are not necessarily bad for the races or education, and that local school districts do not have constitutionally sufficient reasons for using racial tools to redress racially unbalanced public schools.[21]

In none of these decisions has Justice Thomas explored the original intent of the drafters of the Fourteenth Amendment or the expectations, general or specific, of the people who ratified that Amendment; nor has he addressed in any way the historical context of race-based governmental programs designed by the majority to help minority groups. In addition, Justice Thomas has never explored the ambiguity of the word “equal” in the Fourteenth Amendment when applied to a specific race of people who, for generations, were explicitly treated unequally under the law by local, state, and federal governments. If text and history are the only legitimate grounds for constitutional interpretation, Justice Thomas’s affirmative action jurisprudence is illegitimate.

First, the text of the Fourteenth Amendment does not by itself foreclose racial classifications used by majorities to assist minorities. Although we are all guaranteed the “equal protection of the law,” what that means is contestable in the context of generations of slavery, Jim Crow, and formal, legal, and overt racial discrimination against people of color. For example, the use of legacy admissions is constitutional but largely benefits whites because of historical discrimination. If colleges and universities are allowed to take alumni status into account, why can’t they also take race into account? The word “equal,” by itself and out of context, simply cannot resolve the difficult issues surrounding affirmative action.

Second, many scholars have demonstrated that, according to the best evidence we have, the drafters and ratifiers of the Reconstruction Amendments would have believed racial preferences designed to assist the newly freed slaves were in fact fully consistent with those Amendments.[22] Justice Thomas has never tried to counter these arguments about original intent, nor has he even acknowledged them.  He has frequently cited the dissenting opinion of Justice Harlan in Plessy v. Ferguson,[23] an 1896 opinion that tells us absolutely nothing about racial preferences to help disadvantaged groups, as it involved the forced segregation of whites and blacks on public transportation.  It was also decided many years after the Equal Protection Clause was ratified.

Contrary to his frequently repeated admonitions about keeping personal views out of the judiciary, Thomas’s affirmative action jurisprudence is nothing more and nothing less than his personal preference for a formalized, color-blind Constitution. Rather than citing to text or history, he has emphasized the stigmatizing effects of racial preferences and how they undercut the quest for racial equality. He feels so strongly about this policy position that he devoted almost an entire opinion to defending it.[24] He may be right, or he may be wrong, but he has failed to justify such a reading through text or history.

The only real history Justice Thomas has recounted in his affirmative action opinions focuses on the views of Frederick Douglass, a famous abolitionist. The problem is that Justice Thomas misrepresents Douglass’s views.  In Grutter, Justice Thomas quoted Douglass as follows:

In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us![25]

Justice Thomas’s purpose was clear. He argued that Douglass would have been against any racial preferences and just wanted formal equality for all Americans regardless of race (which is conveniently Justice Thomas’s view). The problem is that Justice Thomas took Douglass out of context, omitted relevant parts of the very quote he relied on for his color-blind argument, and failed to review much of Douglass’s life work, some of which strongly leads to the opposite conclusions about affirmative action asserted by Justice Thomas.

Justice Thomas left out from the quoted language above the next part of Douglass’s speech:

If you see him (a black person) on his way to school, let him alone, don’t disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him alone, don’t disturb him! If you see him going into a work-shop, just let him alone,—your interference is doing him positive injury.[26]

Douglass was obviously angry at the racial discrimination faced by black citizens at the time he was writing, not making any argument for or against government preferences to make the lives of the newly freed slaves easier. More importantly, at other times in his life and in other speeches, Douglass clearly felt that the Government had not done enough for the black race. In 1875, he said the following:

[T]he world has never seen any people turned loose to such destitution as were the four million slaves of the South. . . . They were . . . free to hunger, free to the winds and the rains . . . free without bread to eat, or land to cultivate. . . .  We gave them freedom and famine at the same time. The marvel is that they still live. What the negro wants is, first, protection of the rights already conceded by law and, secondly, education. Talk of having done enough for these people after two hundred years of enforced ignorance and stripes is absurd, cruel, and heartless.[27]

Frederick Douglass gave many speeches on various aspects of the plight of the freed slaves, and it is impossible to know how he would have felt about racial preferences in today’s world. But we do know that Justice Thomas never discusses the many programs the late nineteenth century Congress adopted to help people of color, and he never even tries to identify the original understanding of the Fourteenth Amendment as applied to affirmative action programs. Either Justice Thomas is unaware of the many historical and textual arguments supporting affirmative action or he has deliberately chosen to ignore them. Neither alternative speaks well for the Justice.

Justice Thomas’s many public statements and written opinions urging the necessity of textual and historical analysis when evaluating constitutional issues, therefore, are either the result of great confusion or great hypocrisy. The issues surrounding affirmative action are complex and emotionally charged, and reasonable people can certainly disagree about the stigmatizing effect of racial preferences. Justice Thomas obviously believes strongly that, in the long run, African Americans will be hurt more than helped by racial preferences. None of that should matter, however, to a Justice who believes that text and history are all that should be examined when the Court reviews the decisions of other governmental officials, like those of the Board of Regents of the University of Texas. For Justice Thomas to substitute his values for government officials’ decisions on an issue where the text and the Constitution are at most unclear, but probably favor the validity of those decisions, is judicial hypocrisy and judicial hubris of the worst kind.


The constitutional question raised by Fisher, and by all affirmative action cases, is whether the Equal Protection Clause of the Fourteenth Amendment prevents governmental officials from using racial classifications to increase diversity, redress prior discrimination, and foster a more racially tolerant society.  A Justice sincerely concerned with the text and history of the Fourteenth Amendment would have to concede that there is little constitutional basis for foreclosing majority groups from assisting minority groups in this manner. Justice Thomas claims to be a Justice concerned only with text and history (not the Justices’ personal views on difficult policy questions), yet also suggests the Constitution absolutely prohibits all racial preferences.  In light of the constitutional text, and its history, he simply cannot have it both ways.

        *   Professor of Law, Georgia State University College of Law.  I would like to thank Lisa McElroy and Patrick Wiseman for helpful comments on a prior draft.  A version of this Essay was presented to a discussion group at the 2012 Southeastern Association of American Law Schools Annual Conference, and I would like to thank the members of that group for their feedback.

        [1].   132 S. Ct. 1536 (2012) (mem.).

        [2].   See generally Adam D. Chandler, How (Not) To Bring an Affirmative-Action Challenge, 122 Yale L.J. Online 85 (2012), http://yalelawjournal.org/2012/10/01/chandler.html (discussing possible problems of mootness, standing, and sovereign immunity for the Fisher case).

        [3].   See Lewis v. Casey, 518 U.S. 343, 367 (1996) (Thomas, J., concurring) (“It is a bedrock principle of judicial restraint that a right be lodged firmly in the text or tradition of a specific constitutional provision before we will recognize it as fundamental.”); Steven B. Lichtman, Black Like Me: The Free Speech Jurisprudence of Clarence Thomas, 114 Penn St. L. Rev. 415, 444 n.110 (2009) (“For Thomas, divining the Framers’ intentions is the fulcrum of his entire jurisprudence.”).

        [4].   See infra Part I.

        [5].   Justice Clarence Thomas, 13 Scribes J. Legal Writing 99, 124 (2010).

        [6].   Clarence Thomas, Judging, 45 U. Kan. L. Rev. 1, 4 (1996).

        [7].   McDonald v. Chicago, 130 S. Ct. 3020, 3062 (2010) (Thomas, J., concurring).

        [8].   See United Haulers Ass’n, Inc., v. Oneida Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 349–55 (2007) (Thomas, J., concurring).

        [9].   For a good description of Thomas’s originalism, see Lee J. Strang, The Most Faithful Originalist?: Justice Thomas, Justice Scalia, and the Future of Originalism, 88 U. Det. Mercy L. Rev. 873, 876–878 (2011).

      [10].   514 U.S. 779 (1995).

      [11].   See Strang, supra note 9, at 878.

      [12].   McDonald, 130 S. Ct. at 3058.

      [13].   Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989).

      [14].   See Stenberg v. Carhart, 530 U.S. 914, 982 (2000) (Thomas, J., dissenting).

      [15].   Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 380–81 (2006) (Thomas, J., dissenting) (failing to draw a distinction between citizens of another state and citizens of the defendant state as the distinction applies to concepts of sovereign immunity evidenced by the Eleventh Amendment).

      [16].   See New York v. United States, 505 U.S. 144, 177–80 (1992) (explaining Justice O’Connor’s majority opinion, which Justice Thomas joined, which appeared dismissive of a historical argument posed by the respondent United States, and asserted that the Tenth Amendment does not give Congress the authority to force the states to enact regulations).

      [17].   See Printz v. United States, 521 U.S. 898, 945 (1997) (Stevens, J., dissenting) (“[T]he historical materials strongly suggest that the founders intended to enhance the capacity of the Federal Government by empowering it—as a part of the new authority to make demands directly on individual citizens—to act through local officials.”).

      [18].    Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (Thomas, J., concurring).

      [19].   Id. at 240–41.

      [20].   See generally Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).

      [21].   Parents Involved, 551 U.S. at 748 (Thomas, J., concurring).

      [22].   See Andrè Douglas Pond Cummings, Grutter v. Bollinger, Clarence Thomas, Affirmative Action and the Treachery of Originalism: “The Sun Don’t Shine Here in This Part of Town,” 21 Harv. Black Letter L.J. 2, 46 (2005) (citing Eric Schnapper,Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev. 753 (1985); Stephen A. Siegel, The Federal Government’s Power to Enact Color-Conscious Laws: An Originalist Inquiry, 92 Nw. U. L. Rev. 478, 499 (1998); Christopher E. Smith, Clarence Thomas: A Distinctive Justice, 28 Seton Hall L. Rev. 1, 11 (1997)).

      [23].   163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).

      [24].   See generally Grutter v. Bollinger, 539 U.S. 306 (2003) (Thomas, J., dissenting).

      [25].   Id. at 349 (quoting Frederick Douglass, What the Black Man Wants: An Address Delivered in Boston, Massachusetts (Jan. 26, 1865), in 4 The Frederick Douglass Papers 68 (John Blassingame & John McKivigan eds. 1991)).

      [26].   Cummings, supra note 22, at 47 (quoting Douglass, supra note 25).

      [27].   Ronald Turner, On Parents Involved and the Problematic Praise of Justice Clarence Thomas, 37 Hast. Con. L. Q. 225, 241 (2010) (quoting Frederick Douglass, Celebrating the Past, Anticipating the Future: An Address Delivered in Philadelphia, Pennsylvania (April 14, 1875), in The Frederick Douglass Papers, supra note 25, at 412–13).

By: Eric A. Johnson*


Substantive background principles play a critical role in the courts’ interpretation of criminal statutes, particularly where the subject of mens rea is concerned.[1]  As Professor Dan Kahan has said, “criminal statutes typically emerge from the legislature only half-formed.”[2]  The effect of these “incompletely specified criminal statutes” is a tacit delegation of lawmaking authority from the legislature to the courts.[3]  A delegation of this sort occurs, for example, in connection with the question of causation.  By enacting statutes that require causation but leave the required causal relationship undefined, legislatures effectively have “left to judicial development”[4] the meaning of the statutory causation requirement.[5]  A similar, though more complex, delegation occurs in connection with mens rea.  Legislatures routinely fail to identify the culpable mental states associated with particular objective elements of crimes.[6]  And so the task of deciding what mental states, if any, to assign these elements falls to the courts.  To guide their exercise of this delegated power, courts have developed a rich—if somewhat untidy—body of substantive background principles.[7]

The most important of these substantive background principles is the presumption of mens rea—or the “mens rea principle,” as it sometimes is known.[8]  The origins of this principle are usually traced to Morissette v. United States,[9] where the Supreme Court famously said:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.  It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.[10]

In service of this universal notion, the Court read a requirement of intent into the federal conversion statute under which Morissette had been prosecuted.[11]  More broadly, the Court recognized a general presumption that every criminal statute requires proof of “some mental element.”[12]  This presumption, the Court said, could be overcome only by a “clear expression” of legislative intent to impose liability without fault.[13]

Nowadays, the mens rea question is more complicated than whether a crime requires proof of just “some mental element.”  Though “[t]he common law and older codes often defined an offense to require only a single mental state,”[14] the publication of the Model Penal Code in 1962 led to “a general rethinking of traditionalmens-rea analysis.”[15]  Among the components of this rethinking was a recognition that the question of mens rea must “be faced separately with respect to each material element of the crime.”[16]  In other words, the Model Penal Code showed that the question whether to require proof of “some mental element” must be addressed not in relation to the crime as a whole but rather in relation to each individual objective element of the crime.  And so it also showed that the mens rea principle must operate, somehow, at the level of individual material elements.

Unfortunately, nobody seems to know which material elements are subject to the mens rea presumption.  Students in the traditional first-year Criminal Law course learn two very different versions of the presumption.  The first is the Model Penal Code version, which requires proof of some mental state—purposely, knowingly, recklessly, or negligently—with respect to every material element of the offense,[17] unless the offense is a mere “violation.”[18]  The second is the judge-made version, which requires proof of some mental state only with respect to those “statutory elements that criminalize otherwise innocent conduct.”[19]  Justice (then Judge) Sotomayor precisely, if somewhat awkwardly, summarized this judge-made version of the presumption in her very first opinion as a judge of the Second Circuit.[20]  “Absent clear congressional intent to the contrary,” she said, “statutes defining federal crimes are . . . normally read to contain a mens rea requirement that attaches to enough elements of the crime that together would be sufficient to constitute an act in violation of the law.”[21]

Neither the Model Penal Code’s nor the courts’ version of the mens rea presumption is entirely right.  In Part I, I will argue that the Code’s drafters were wrong in assuming that elements designed to measure the harm from an offense invariably require the assignment of a mental state.  In Part II, I will argue—drawing on a recent dissenting opinion by Justice Stevens—that the courts are wrong in assuming that elements designed to do something other than measure the harm often do notrequire mental states.  In Part III, I will use these two criticisms—of the Model Penal Code and of the courts—as the basis for constructing an alternative version of the mens rea presumption, in which the mens rea presumption is reconceptualized as a kind of actus reus presumption.  Finally, in Part IV, I will show that this alternative version of the mens rea presumption is consistent with what the courts say about the confusing topic of general and specific intent.

I.  The Shortcomings of the Model Penal Code Approach

The Model Penal Code’s version of the mens rea requirement appears in section 2.02, which provides that “a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.”[22]  This rule would require the courts to assign some mental state to every objective element of every offense—even elements whose function is to distinguish between more and less serious versions of the same offense.  As applied to the crime of aggravated theft, for example, this rule would require the courts to assign some mental state—”recklessly,” perhaps—even to the value of the stolen property.[23]  Thus, a defendant charged with aggravated theft could defend the case by asserting that he had not realized that the stolen property’s value might exceed the statutory threshold.[24]

This expansive version of the mens rea presumption undoubtedly is based in part on the uncontroversial proposition that culpability is a matter of degree.[25]  There is a difference, of course, between a thief who hopes or expects to obtain property valued at a million dollars and a thief who hopes or expects to obtain property valued at five dollars.  And one reason for differentiating aggravated from simple theft is to take this difference into account.  But the expansive version of the mens rea presumption also appears to be based on two more controversial assumptions, neither of which has won a broad following among courts.

The first of these two assumptions is that harm has no independent bearing on a crime’s gravity and, accordingly, that the harm elements in criminal statutes really function only as markersto tell the jurors in relation to what harm they are to measure the unjustifiability of risk and the culpability of the actor’s conduct.  From this assumption that harm elements are present in criminal statutes only as markers, it appears to follow that harm elements can fulfill their statutory function only if they are assigned mental states.  The commentaries to the Model Penal Code make roughly this point in connection with the aggravated-theft example: “The amount involved in a theft has criminological significance only if it corresponds with what the thief expected or hoped to get.  To punish on the basis of actual harm rather than on the basis of foreseen or desired harm is to measure the extent of criminality by fortuity.”[26]

This first apparent assumption—that harm has no bearing on the crime’s gravity except as a marker—is belied even by the Model Penal Code’s own special part.  Under the Code, a person who “recklessly engages in conduct which places or may place another person in danger of death” is guilty only of a misdemeanor—reckless endangerment—if the risk of death is not realized.[27]  On the other hand, if the risk of death is realized, the defendant is guilty of reckless manslaughter, a felony punishable by up to ten years in prison.[28]  The risk required by these two crimes is exactly the same, as is the degree of culpability.  What distinguishes the two crimes is just the harm.  In this setting, then, the Code obviously assigns independent significance to the degree of harm inflicted by the crime.[29]

State legislatures, too, have assigned independent significance to harm in a wide array of criminal statutes.  Consider, for example, two Iowa statutes on the subject of drag racing.  The first, section 321.278 of the Iowa Code, defines “drag racing” as a “motor vehicle speed contest . . . on any street or highway” and classifies it as a simple misdemeanor.[30]  The second, section 707.6A of the Iowa Code, provides that “[a] person commits a class ‘D’ felony when the person unintentionally causes the death of another while drag racing, in violation of section 321.278.”[31]  The second of these statutes appears to require nothing by way of risk or culpability that is not required by the first.  It says nothing about any requirement of recklessness or negligence with respect to the death, for example.[32]  And so it appears simply to require intentional or knowing participation in a drag race, as does the misdemeanor statute.[33]  The relationship between these two statutes is the same, then, as the relationship between reckless endangerment and reckless manslaughter.  What distinguishes the two drag-racing crimes is just the harm caused by the defendant.  In this and other like statutes, harm matters.

There is more behind the Model Penal Code’s expansive version of the mens rea requirement, though, than the drafters’ apparent assumption that harm lacks any independent bearing on a crime’s gravity.  There also is a second, distinct assumption, namely, that only by assigning a mental state to the social harm that is the statute’s target can the statute adequately answer the two normative questions on which criminal liability ought to hinge: (1) whether the risk posed by the defendant’s conduct was unjustifiable; and (2) whether the defendant’s disregard of the risk, or his failure to perceive the risk, “justifies condemnation.”[34]  The Code’s drafters assumed, in effect, that every criminal statute must operate on the same model as the Code’s reckless-manslaughter provision, which—by assigning a mental state of “recklessly” to the “death of another” element[35]—requires the jury to decide for itself whether the conduct posed an “unjustifiable” risk of death and whether the defendant was culpable in relation to this risk.[36]

This second of the drafters’ assumptions is, like the first, belied by statutes like Iowa’s drag-racing homicide statute, which measure the unjustifiability and culpability of the risk-taking without assigning a mental state to the social-harm element.  As Professor Mark Kelman has said, offenses like drag-racing homicide are related to reckless and criminally negligent homicide in much the same way that tort negligence per se is related to ordinary tort negligence.[37]  Statutes defining offenses like drag-racing homicide embody antecedent legislative judgments of unjustifiability and culpability per se.[38]  These antecedent legislative judgments—though made in relation to the social harm that is the statute’s target—are based on the statute’s other elements and on the mental states associated with those other elements.[39]  In the crime of drag-racing homicide, for example, the antecedent legislative judgment hinges on proof that the actor knowingly or intentionally participated in a motor vehicle “speed contest” on a public “highway.”  It would be redundant, then, to assign a mental state to the harm; it would be redundant, that is, to put to the jury directly the questions whether the conduct posed an unjustifiable risk of death and whether the actor was culpable in relation to this risk.  In effect, the legislature already has answered these questions on the basis of the statute’s circumstance and conduct elements and their accompanying mental states.

Statutes that embody these sorts of antecedent determinations of unjustifiability and culpability per se are commonplace.  For example, most state criminal codes have drunk-driving-homicide statutes, in which the driver’s liability hinges exclusively on his or her intoxication at the time of the fatal accident.[40]  These statutes do not require the jury to make a determination that the defendant was reckless or negligent with respect to the result element—that is, the death of a person.[41]  Instead, the statutes’ only mental states pertain to the conduct and attendant-circumstance elements.[42]  They usually require, first, that the defendant act purposely with respect to the conduct element—namely, driving a motor vehicle—and, second, that the defendant act knowingly with respect to an attendant circumstance element—namely, the fact that the defendant had consumed an intoxicant.[43]

Likewise, a substantial minority of states have specific “drug-induced homicide” statutes.[44]  These statutes generally require, first, that the defendant deliver one of several specified controlled substances—for example, heroin, methamphetamine, or cocaine—and, second, that another person die as the result of ingesting the controlled substance.[45]  The statutes do not require the government to prove that the defendant was reckless or criminally negligent with respect to the social harm that is the target of the statute.[46]  Instead, by way of mens rea, they typically require the government to prove only that the defendant knew that he or she was delivering the controlled substance.[47]

There is room for disagreement about whether statutes like these are desirable[48]—about whether society is better served by rules embodying antecedent legislative judgments of unjustifiability and culpability per se,[49] or instead is better served by statutes that delegate to the finder of fact the responsibility for making ad hoc, case-specific judgments of unjustifiability and culpability.[50]  What is not subject to disagreement, though—and what is critical to the argument here—is just that legislatures traditionally have made extensive use of both kinds of criminal statutes.[51]  From the fact that legislatures traditionally have made extensive use of both kinds of criminal statutes, it follows that the courts ought not to adopt a version of the mens rea presumption that wishes away statutes embodying antecedent legislative judgments of unjustifiability and culpability per se.  In exercising their delegated power to develop substantive criminal-law background principles,[52]after all, the courts are merely “partners in the enterprise of lawmaking.”[53]  They do not dictate to the legislature.

II.  The Shortcomings of the Supreme Court’s Approach

This criticism of the expansive Model Penal Code version of the mens rea presumption seems to point toward a particular limitation on the presumption.  One of the defining features of crimes like drunk-driving homicide is the fact that the result element does not define the boundary between lawful and unlawful conduct.  The underlying conduct in drunk-driving homicide—driving while drunk—is criminal even when it does not cause death, injury, or property damage.  And the same is true of drag racing and drug trafficking and of the felonies that provide the bases for felony-murder prosecutions.  This feature of the homicide statutes suggests a possible shorthand formula for identifying elements that do not require the assignment of a mental state.  We could say an element does not require the assignment of a mental state if—like the element of death in drunk-driving homicide—it merely aggravates conduct that already is criminal.

This, as it happens, is the formula that the courts usually have used to define the scope of the mens rea presumption.  State and federal courts, when they have recognized that the question of mens rea must “be faced separately with respect to each material element of the crime,”[54] usually have held that the presumption of mens rea does not apply to elements that make a crime more serious; it only applies to elements that “make[] the conduct criminal.”[55]  In Staples v. United States,[56] for example, the Supreme Court said that the presumption requires the government to prove some mental state with respect to all “the facts that make [the] conduct illegal.”[57]  The Supreme Court spoke even more clearly in Carter v. United States,[58] where it said that “[t]he presumption in favor of scienter . . . requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”[59]

The Court’s most recent application of this limiting principle came in Dean v. United States.[60]  The statute at issue in Dean was 18 U.S.C. § 924(c)(1)(A)(iii), which, in effect, defines an aggravated version of the offense of carrying a firearm during a crime of violence.[61]  Under this section, a person who uses or possesses a firearm during a crime of violence or a drug-trafficking crime will be subject to an enhanced minimum sentence of ten years “if the firearm is discharged.”[62]  InDean, both sides agreed that the defendant, Dean, had carried a firearm during a crime of violence—the robbery of a bank.[63]  And both sides agreed that the firearm had gone off.[64]  But the discharge appeared to have been accidental (since Dean cursed after the gun went off).[65]  So the question arose whether the government was required to prove some mental state with respect to the discharge.[66]  Dean argued that the government was required to prove that he had discharged the gun intentionally or knowingly.[67]  The Supreme Court concluded, though, that Congress had meant, by its omission of a mental state, not to require a mental state with respect to the discharge.[68]

In reaching this result, the Supreme Court said that Dean’s reliance on the presumption of mens rea was misplaced.[69]  The Court explained that the presumption did not apply to the discharge element, since the defendant’s conduct in cases prosecuted under 18 U.S.C. § 924(c)(1)(A)(iii) is unlawful even apart from the discharge of the firearm.  “It is unusual to impose criminal punishment for the consequences of purely accidental conduct,” the Court said.[70]  “But it is not unusual to punish individuals for the unintended consequences of their unlawful acts.”[71]  In effect the Court applied in Dean the same limiting principle it had applied in cases likeStaples and Carter, namely, that the presumption of mens rea applies only to “the facts that make [the] conduct criminal.”[72]

The academic commentary has been broadly critical of this limitation on the mens rea presumption.[73]  What interests me, however, is the somewhat more focused criticism offered by Justice Stevens in his dissenting opinion in Dean.[74]  In arguing that the discharge element in 18 U.S.C. § 924(c)(1)(A)(iii) required a mental state, Justice Stevens relied in part on the mens rea presumption.[75]  To the Dean majority’s reliance on the distinction between aggravating elements and elements that make conduct criminal, Justice Stevens responded by proposing a refinement of the distinction.  He said, in substance, that the “aggravating-element” limitation on the mens rea principle really only applies to aggravating elements that measure the degree of harm inflicted by the defendant:

The Court cites the felony-murder rule . . . and Sentencing Guidelines provisions that permit increased punishment based on the seriousness of the harm caused by the predicate act . . . .  These examples have in common the provision of enhanced penalties for the infliction of some additional harm.  By contrast, § 924(c)(1)(A)(iii) punishes discharges whether or not any harm is realized. . . .  For [this and other] reasons, § 924(c)(1)(A)(iii) is readily distinguishable from the provisions the majority cites.[76]

These four sentences are brief to a fault.  But the twofold gist of the sentences can be summarized as follows.  First, elements that are designed to measure the degree of harm inflicted by the defendant—that, in Justice Stevens’s words, go to “the seriousness of the harm caused by the predicate act”—sometimes can justify increased punishment quite apart from whether the government is required to prove any mental state with respect to the harm.  Second, elements designed to do something other than measure the harm—like the discharge of a firearm under § 924(c)(1)(A)(iii)—usually cannot justify increased punishment unless the government is required to prove some mental state with respect to them.[77]

This second point is the controversial one.  Why did Justice Stevens suppose that elements that are designed to measure something other than the harm usually cannot justify increased punishment absent proof of an accompanying mental state?  The only explanation appears in Justice Stevens’s enigmatic statement that 18 U.S.C. § 924(c)(1)(A)(iii) was intended “to serve a different purpose [than provisions that impose increased punishment on the basis of the seriousness of the harm]—namely, to punish the more culpable act of intentional discharge.”[78]  The implication of this remark is that factors other than harm are significant only to the degree that they signal enhanced culpability.

This explanation seems wrong, though.  It is at least arguable that, as the majority said in Dean,[79] the discharge element in § 924(c)(1)(A)(iii) was designed to do something other than measure the degree of the defendant’s culpability.  The majority thought the discharge element mattered not because it signified enhanced culpability but because it signified enhanced risk.  The discharge of a firearm during a bank robbery, the Court said, “increases the risk that others will be injured, that people will panic, or that violence (with its own danger to those nearby) will be used in response.”[80]  According to the majority, then, the discharge element might have been designed not to measure the defendant’s culpability—not, that is, to measure the defendant’s subjective perception of risk—but rather to measure the degree of objective risk posed by his conduct.

The Dean majority appears to have been correct in thinking that the degree of risk posed by an actor’s conduct sometimes has significance that is independent of the actor’s perception of the risk.  The Model Penal Code’s definition of reckless endangerment, for example, requires proof not only of culpability but of actual risk; it is satisfied only when the actor’s conduct “places or may place another person in danger of death or serious bodily injury.”[81]  A person who believes without any basis that he is driving ninety miles per hour is not guilty of reckless endangerment if he really is driving within the speed limit.[82]  The same is true of criminally negligent homicide, reckless manslaughter, and even depraved-indifference homicide.  In all these offenses, the actor’s liability depends not only on the actor’s culpability but also on the degree of objective risk posed by his conduct.[83]  There is no reason in principle, then, why increased risk should never be significant in its own right.  And indeed some criminal codes assign—or purport to assign—significance to the risks created by a defendant’s conduct without requiring proof of enhanced culpability.[84]

The Dean majority’s reliance on the objective risk posed by Dean’s conduct—as a basis for the enhanced punishment imposed under § 924(c)(1)(A)(iii)—suggests a powerful alternative basis for Justice Stevens’s implied criticism of the traditional judge-made version of the mens rea presumption, however.  The magnitude of even an “objective” risk, and indeed the very existence of the risk, is always tied to the defendant’s perspective—to what the defendant knew about his conduct and about the surrounding facts and circumstances.  Strictly speaking, purely objective probabilities don’t exist outside the world of indeterministic microphysics.[85]  At the macroscopic level, probabilities are just a reflection of the incompleteness of our knowledge of the world.[86]  If we knew everything there was to know about the objective facts—“all the forces by which nature is animated and the respective situation of the beings who compose it”[87]—probability would give way to certainty.[88]  The very notion of probability, then, presupposes “a perspective that is defined by possession of certain information but not other information.”[89]

Dean illustrates this.  It is possible now, after the fact, to reconstruct the objective facts surrounding the discharge of Dean’s gun—the position and orientation of the gun, the trajectory of the bullet, the location of the bank’s employees and customers, and so on.  And so it is possible now to say that, when the gun discharged, the purely “objective” probability that the bullet would injure one of the bank’s employee or customers was zero.[90]  The bullet was bound to travel through the partition separating the two bank tellers, ricochet off a computer, and come to rest harmlessly on the teller counter.[91]  Thus, when the majority in Dean says that the discharge of Dean’s firearm “increase[d] the risk that others [would] be injured,”[92] it cannot mean the agent-independent risk.  It must, rather, mean the risk or probability as calculated from some “perspective that is defined by possession of certain information but not other information.”[93]

In criminal law, objective probabilities are calculated from the defendant’s perspective.  More precisely, the probabilities of interest to the criminal law are calculated on the basis of a factual setup defined by what the defendant knows of the background facts and circumstances.[94]  (In the words of the Model Penal Code’s definitions of recklessness and negligence, the probabilities are measured on the basis of “the circumstances known to [the actor].”)[95]  This is true where the finder of fact bears the responsibility for making a case-specific assessment of the nature and degree of risk, as he does in, say, a prosecution for reckless homicide.[96]  But it is true as well where the legislature uses specific, factual elements—such as the discharge of a firearm—to mark the existence of a risk that is unjustifiable per se.[97]  After all, the probabilities that are the subject of the antecedent legislative judgment of unjustifiability per se are the same probabilities that are the subject of a fact-finder’s case-specific judgment.  And so, for example, in a prosecution for drunk driving, the antecedent legislative determination of unjustifiability per se hinges on proof that the defendant knew he was driving and knew that he had consumed an intoxicant.[98]  And in a prosecution for drag-racing homicide, the antecedent legislative judgment of unjustifiability per se hinges on proof that the defendant knew he was participating in a speed contest on a public highway.

This account of objective risk, though curious sounding, is utterly uncontroversial.  Consider a typical Fourth Amendment case, for example.  The lawfulness of a warrantless search or seizure usually depends on whether the evidence available to the officer satisfied one of two probability thresholds: the probable cause standard or the reasonable suspicion standard.  In applying these two probability thresholds, the courts insist that the probabilities at work are “objective,” rather than “subjective.”[99]  Still, the courts measure these objective probabilities just as the Model Penal Code requires the fact finder to do in criminal cases: on the basis of “the facts and circumstances known to the officer.”[100]  Here and elsewhere, then, courts measure even objective probabilities according to what the actor himself knew of the background facts and circumstances.

This is to say, the real trouble with the traditional judge-made version of the mens rea presumption is not, as Justice Stevens supposed, that the moral significance of risk depends on the defendant’s mental state.  The real trouble is that the very existence of risk depends on the defendant’s mental state.  Offense elements like the discharge of a firearm—elements that are designed to measure the objective risk posed by the actor’s conduct, rather than the harm inflicted by his conduct—can perform their assigned function only if they are tied somehow to what the actor knew about the underlying facts.  Therefore, elements designed to measure the risk ordinarily require the assignment either of a “knowingly” mental state or of a mental state like negligence or recklessness, whose existence turns on an assessment of the underlying “circumstances known to [the actor].”[101]

III.  The Mens Rea Presumption as an Actus Reus Presumption

From these criticisms—of the Model Penal Code version of the mens rea presumption, on the one hand, and of the judge-made version, on the other—it is possible to construct a new version of the presumption.  This new version of the presumption would not apply to elements whose exclusive function is to measure the degree of harm inflicted by the crime.  Instead it would apply to every other kind of element: to elements that define risk-enhancing attendant circumstances, like the intoxication of the actor in drunk-driving homicide; to elements that define the nature of the required conduct, like the “driving” element in drag-racing homicide; and to elements that define risk-manifesting intermediate results, like the discharge of the firearm in 18 U.S.C. § 924.  Moreover, the presumption would apply even to harm elements when the statute’s remaining elements—the circumstances, the conduct, and the intermediate results—do not clearly embody an antecedent legislative judgment of unjustifiability and culpability per se.

This might sound, at first hearing, like a relatively modest change in the mens rea presumption.  But it really works a fundamental change in the presumption’s underpinnings.  The new version is grounded not on concerns about fine-tuned assessments of subjective moral blameworthiness but rather on concerns about whether the defendant’s conduct even was wrong.  It is grounded, in other words, on concerns about the existence of the crime’s actus reus, not on concerns about culpability.

To explain, criminal liability is usually thought to hinge on the answers to two different questions.  The first is the question of “legality” or “wrongdoing,” which in effect asks whether the actor’s conduct violated an external, objective rule of conduct.[102]  The second is the question of “culpability,” which in effect asks whether the actor, despite having violated a rule of conduct, nevertheless lacks “the minimum blameworthiness required to be held criminally liable for the violation.”[103]  Courts and scholars both have assumed that the mens rea presumption really speaks to the second of these questions, and not without justification.  After all, the Supreme Court in Morissette identified the presumption of mens rea not with the requirement of “an evil-doing hand” but rather with the apparently distinct requirement of “an evil-meaning mind.”[104]

Still, it is the requirement of wrongdoing—of “an evil-doing hand”—on which the so-called mens rea presumption mostly bears.  This was one of Holmes’s central insights in The Common Law.  Holmes was concerned with establishing, in criminal law as elsewhere, “tests of liability [that] are external, and independent of the degree of evil in a particular person’s motives or intentions.”[105]  But he recognized that the objective risk posed by an actor’s conduct could not be measured except according to “the circumstances known to him.”[106]  And so he recognized that “[s]o far . . . as criminal liability is founded upon wrong-doing in any sense, . . . [it] must be confined to cases where circumstances making the conduct dangerous were known [to the actor].”[107]  He dismissed, moreover, the possibility that the requirement of mens rea is meant to accomplish more than this: “[T]he mens rea, or actual wickedness of the party, is wholly unnecessary, and all reference to the state of his consciousness is misleading if it means anything more than that the circumstances in connection with which the tendency of his act is judged are the circumstances known to him.”[108]

If Holmes was wrong in expressing doubt about whether “the actual degree of personal guilt involved in any particular transgression . . . is an element at all,”[109] he was right in thinking that the most important function of mental-state requirements is to tell us what the actor knew of the surrounding circumstances and thereby to tell us what the objective risk posed by the actor’s conduct was.  It is this critical function that the mens rea presumption, as reconfigured by Justice Stevens in Dean, really is designed to serve.  The mens rea presumption serves this critical function by requiring that mental states be assigned to elements whose purpose is, at least in part, to measure the risk associated with the actor’s conduct.  Paradoxically, then, the mens rea presumption really is an actus reus presumption; it requires the courts to presume that the legislature meant to require proof of an indispensable mental component of the actus reus—knowledge of the “circumstances making the conduct dangerous.”[110]

Finally, there is nothing conceptually problematic in the recognition that the actus reus has an indispensible mental component.  Courts long have recognized that the actus reus includes a requirement of a voluntary act and that this voluntary-act requirement has a mental component.  The Washington Court of Appeals explained this point nicely in State v. Utter[111]:

There are two components of every crime.  One is objective—the actus reus; the other subjective—the mens rea.  The actus reus is the culpable act itself, the mens rea is the criminal intent with which one performs the criminal act.  However, the mens rea does not encompass the entire mental process of one accused of a crime.  There is a certain minimal mental element required in order to establish the actus reus itself.  This is the element of volition.[112]

The effect of Justice Stevens’s reconceptualization of the mens rea presumption is just to show that another facet of the actus reus—the objective risk—has a mental component as well.[113]

IV.  The Actus Reus Presumption as a Presumption of General Intent

What I have said so far would provide, at best, a thin basis for urging a state or federal court to adopt the proposed limitation on the scope of the mens rea presumption.  Thankfully, though, the proposed limitation is grounded in more than Justice Stevens’s remark in his dissent in Dean and on more than my own theoretical excursus into the nature of objective probability.  The proposed limitation also has a strong grounding in what the courts say about the difficult subject of general and specific intent.

Federal and state courts often have said that what the presumption of mens rea really presumes is that the legislature meant to require “general criminal intent,” as opposed to “specific intent.”  This version of the mens rea requirement appears to have originated in United States v. Lewis,[114] where the Fourth Circuit observed that courts applying the mens rea requirement usually wound up concluding—of the statute being interpreted—that “only general intent is needed.”[115]  In the intervening years, the Fourth Circuit’s observation has become a kind of formula.  The Supreme Court invoked this formula in Carter v. United States,[116] where it said  that “the presumption in favor of scienter demands only that we read [18 U.S.C. § 2113(a), which defines the federal bank-robbery offense] as requiring proof of general intent.”[117]  Federal courts of appeals, too, now frequently say of the mens rea requirement that “absent any express reference to intent, [courts] . . . generally presume that proof only of ‘general’ rather than of ‘specific’ intent is required.”[118]

At first glance, this proposition—that the presumption of mens rea requires only general intent, not specific intent—appears to have little bearing on the question addressed in this Article.  After all, the proposition appears to speak only to the kind of mental state required by the presumption of mens rea, rather than to the question of which elements require mental states.  But this first glance is deceiving.  When the courts say that the presumption of mens rea requires only general intent, not specific intent, they are not just saying something about what kind of mental state is required.[119]  They are also saying something about which objective elements the mental state attaches to.  And what they are saying, as it turns out, revolves around exactly the same distinction that formed the basis for Justice Stevens’s argument in Dean, namely, the distinction between elements that measure harm and elements that measure risk.

To explain, the terms “general intent” and “specific intent” do not describe mental states, or at least they do not describe mental states in the way that terms like intentionally, purposely, knowingly, recklessly, negligently, willfully, and maliciously do.  When a legislature defines the mental state for an element, it uses terms like purposely, knowingly, recklessly, and so on.  It never uses the terms general intent and specific intent.  Nor, in most places, do judges use the terms general intent and specific intent in instructing juries.  Rather, they use terms like purposely, knowingly, recklessly, and so on.[120]

If general and specific intent are not the names of mental states, though, what are they?  The answer is that whether a particular mental state counts as a general intent or a specific intent will depend not just on the nature of the mental state itself but also on the kind of objective element to which it is attached.  The mental state of “intentionally,” for example, sometimes will count as a general intent and sometimes will count as a specific intent, depending on what objective element the mental state attaches to.  When the mental state of intentionally attaches to an element that is designed to measure the harm from the offense—say, the element of serious bodily injury in the crime of aggravated assault—the mental state of intentionally will usually be classified as a specific intent.[121]  When the mental state of intentionally attaches instead to an element that is designed to measure the risk posed by an offense—say, the element of discharge of a firearm—it will be classified as a general intent.

Granted, this isn’t what the courts actually say when they articulate the distinction between general and specific intent.  What the courts typically say is that a crime is a general-intent offense if it requires the government to prove only that “the defendant intended to do the proscribed act,”[122] and that, by contrast, a crime is a specific-intent offense if it requires the government to prove that the defendant also intended to “achieve some additional consequence.”[123]  But the only way to make sense of this distinction between an “additional consequence” and “the proscribed conduct” is to differentiate the (1) the social harm that is the statute’s ultimate target from (2) earlier events in the causal sequence leading up to the social harm, whose significance lies in their contribution to the risk.

To illustrate, imagine a case where the defendant uses a firearm to kill another person.  The event can be broken down into several steps: first, the shooter squeezes the trigger of the firearm; second, the firearm goes off, sending a bullet in the direction of the victim; third, the bullet strikes the victim’s body; and fourth, the damage inflicted by the bullet causes the victim’s death.  The act of squeezing the trigger clearly seems to be part of the “act,” rather than an “additional consequence.”[124]  And the last event in the causal sequence—the death of the victim—is clearly an “additional consequence.”  (Courts uniformly classify intent-to-kill homicide as a specific intent crime.)[125]  But what of the two events that mediate the causal connection between the squeezing of the trigger and the death of the victim?  Are they “additional consequences” or just part of “the proscribed act”?

At first glance, the discharge of the firearm might appear to be an “additional consequence.”  In causal terms, the discharge of the firearm is a consequence of squeezing the trigger.  What is more, it appears to be a truly separate or “additional” event.  After all, sometimes pulling the trigger of a gun causes a gun to discharge, and sometimes it does not.[126]

But courts have said that the discharge of a firearm does not qualify as an “additional consequence.”  Consider, for example, California decisions interpreting a state statute that prohibits “discharg[ing] a firearm in a grossly negligent manner.”[127]  The California courts have held that this statute requires proof that the defendant actually intended that the firearm go off; it is not enough that he intended to squeeze the trigger.[128]  Nevertheless, the courts have said that this statute defines a “general intent crime, because . . . its mental state consists of an intent to do the act that causes the harm.”[129]  Thus, the discharge of the firearm cannot be an “additional consequence” for purposes of the definition of specific intent.

Nor, in our original illustration, is the bullet’s initial contact with the victim’s body “an additional consequence.”  Granted, in purely causal terms, the bullet’s contact with the victim’s body plainly is a consequence both of the squeezing of the trigger and the firearm’s discharge.  What is more, this initial contact appears to be a truly separate event; the discharge of a firearm sometimes causes a bullet to strike another person’s body, and it sometimes does not.  Nevertheless, courts uniformly have held—in interpreting statutes that define the crime of battery—that an intent to bring about physical contact with another person’s body is a form of general intent, not specific intent.[130]  This means that the bullet’s initial contact with the other person’s body cannot be considered an “additional consequence” for purposes of our definition of specific intent.

So what’s going on here?  All three of the events that followed the squeezing of the trigger—the discharge of the firearm, the bullet’s initial contact with the victim’s body, and the death of the victim—appear to be consequences of the conduct.  Why is only one of these events—the death of the victim—treated as an “additional consequence” for purposes of the definition of specific intent?  The answer, as I have said, lies in the distinction between (1) the ultimate harm at which the statute is targeted and (2) the intermediate events that contribute to the risk of that harm occurring.  In our hypothetical shooting, only the death of the victim is the kind of harm at which criminal statutes are targeted.  Statutes that proscribe, say, the intentional discharge of a firearm are not ultimately targeted at the discharge of firearms.  These statutes proscribe the discharge of firearms not because the discharge of a firearm is harmful in itself but because the discharge of a firearm creates or enhances a risk of death or physical injury.

There are other facets to the complex distinction between general and specific intent.[131]  But this facet defines the real content of the distinction.  When courts say that an offense will qualify as a specific-intent offense if it requires proof that the defendant intended to “achieve some additional consequence” beyond “the proscribed act,” what they really mean (usually) is that an offense will qualify as a specific-intent offense if it requires proof that the defendant intended to bring about the social harm at which the statute is targeted.  And when the courts say that an offense will qualify as general-intent offense if it requires only proof that the defendant intended to do “the prohibited act,” what they really mean is that an offense will qualify as a general-intent offense if it requires only proof that the defendant intended to do something, or to cause something to exist or occur, that creates a risk or increases the magnitude of the risk.[132]

What all this means, finally, is that the limiting principle grounded in the distinction between general and specific intent often will operate very much like the limiting principle suggested by Justice Stevens in his dissent in Dean.  It will favor the assignment of mental states to those elements that are designed to measure the risk associated with the conduct (that are part of “the proscribed act,” in other words) but not to those elements that are designed instead to measure the social harm from the offense (that qualify as “additional consequences,” in other words).


Stuart Taylor said in 1990 that “[t]he careful case-by-case distinctions of [Justice] Stevens do not lend themselves to pigeonholing and do not attract much attention.”[133]  Justice Stevens’s dissenting opinion in Dean v. United States provides further evidence both of Justice Stevens’s tendency to articulate “careful case-by-case distinctions” and of the unfortunate fact that these distinctions only rarely “attract much attention.” [134]  In Dean, Justice Stevens recognized that what underlies the courts’ intuitions about the limits of the mens rea presumption is not a distinction between aggravating elements and elements that “criminalize otherwise innocent conduct,” but rather a distinction between elements that measure harm and elements that measure risk.[135]  Despite the novelty and force of this insight, though, no member of the Court joined Justice Stevens’s dissent, and no commentator has paid this insight any attention.[136]
Justice Stevens’s insight deserves attention, and not just because it happens to be right.  Legislatures routinely fail to specify the mental states associated with objective elements, and so courts frequently face the question whether a particular element requires a mental state.  Justice Stevens’s proposed refinement of the mens rea principle would make itself felt in a substantial number of these cases.  It would have made itself felt in Dean itself, of course, if the majority had heeded it.  It would have suggested that the discharge element in 18 U.S.C. § 924(c)(1)(A)(iii) required a mental state—if not “knowingly” or “intentionally,” as Dean’s attorneys hoped,[137] then perhaps “with criminal negligence” or “recklessly.”[138]  But the import of this distinction is not remotely limited to Dean.

Take, for example, the question addressed by the Second Circuit in United States v. Falu.[139]  Falu was convicted of aiding and abetting the distribution of heroin within 1000 feet of a school and accordingly was subject to the sentence enhancement imposed by 21 U.S.C. § 860(a).[140]  Section 860(a), like many state statutes,[141] enhances the penalties for drug dealers whose offenses occur near schools.[142]  But § 860(a) is silent on the question of whether this proximity element has an associated mental state.[143]  On appeal, Falu argued that § 860(a) “does not apply unless a defendant had specific knowledge of the proximity of a school.”[144]  But the Second Circuit rejected this claim, relying primarily on the traditional version of the mens rea presumption:

[The proximity element in] section [860(a)] does not criminalize otherwise innocent activity, since the statute incorporates section 841(a)(1), which already contains amens rea requirement—one must ‘knowingly or intentionally . . .
distribute . . . a controlled substance.’ . . . Anyone who violates section [860(a)] knows that distribution of narcotics is illegal, although the violator may not know that the distribution occurred within 1,000 feet of a school.[145]

Application of Justice Stevens’s more refined version of the mens rea principle might have led to a different result in Falu.  The proximity element in 21 U.S.C. § 860(a) is designed to measure not the harm associated with the defendant’s drug dealing but the risk.  In other words, the sentence enhancement triggered by the proximity element is based not on the assumption that narcotics sales in the vicinity of an elementary or secondary school somehow harm the students, but rather on the assumption “that narcotics sales in the vicinity of an elementary or secondary school endanger the students” by increasing the risk that the drugs will fall into the students’ hands.[146]  Because the proximity element in § 860(a) is designed to measure risk, rather than harm, and because the existence even of objective risk depends on the background facts and circumstances known to the actor, the court ought at least to have presumed that the proximity element required the assignment of a mental state—if not “knowingly,” as Falu’s attorneys hoped,[147] then perhaps the mental state of “recklessly” or the mental state of “with criminal negligence,” both of which judge the risk of an attendant circumstance’s existence on the basis of “the [underlying] circumstances known to [the actor].”[148]

Finally, if Justice Stevens’s approach to this issue lacks the ideological purity of the Model Penal Code’s approach,[149] it also has the potential to succeed where the Code’s approach failed: in actually getting itself accepted by the courts.[150]  In recent years, courts increasingly have framed the mens rea as a presumption of general intent and so have taken pains to distinguish general from specific intent.[151]  The distinction between general and specific intent—between mental states attached to the “prohibited act” and mental states attached to “additional consequences”—closely parallels the distinction made by Justice Stevens between elements that measure risk and elements that measure harm.  The courts, then, already are stumbling toward the very rule proposed by Justice Stevens.

         *   Professor of Law, University of Illinois College of Law.

        [1].   Eric A. Johnson, Does Criminal Law Matter? Thoughts on Dean v. United States and Flores-Figueroa v. United States, 8 Ohio St. J. Crim. L. 123, 135–36 (2010); see also United States v. Figueroa, 165 F.3d 111, 119 (2d Cir. 1998) (“The principles of construction underlying the criminal law serve as much better signposts to congressional intent in these kinds of circumstances than a statute’s sparse and inconsistent legislative history.”); Michael S. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law 4–5 (1993) (“[The criminal law] needs some general doctrines—doctrines applying to all types of action prohibited by a criminal code—in order to avoid an ungodly redundancy and a woeful incompleteness.”); Andrew C. Spiropoulos, Making Laws Moral: A Defense of Substantive Canons of Construction, 2001 Utah L. Rev. 915, 935–42 (2001) (using the mens rea problem to illustrate the essential role of substantive canons of statutory construction in criminal law).

        [2].   Dan M. Kahan, Ignorance of Law Is an Excuse—but Only for the Virtuous, 96 Mich. L. Rev. 127, 153 (1997).

        [3].   Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 372 (1994); see also Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 Harv. L. Rev. 469, 470 (1996) [hereinafter Kahan, Chevron] (arguing that judicial “inventiveness” in the interpretation of federal criminal statutes “is a response to the deliberate incompleteness of the criminal statutes”).

        [4].   1 Model Penal Code and Commentaries § 2.03 cmt. 5, at 264 (1985) (describing the effect of the causation provision included in the draft federal criminal code).

        [5].   See State v. David, 141 P.3d 646, 649–52 (Wash. Ct. App. 2006) (recognizing that the Washington State Legislature “has historically left to the judiciary the task of defining some criminal elements,” among them causation).

        [6].   See People v. Rathert, 6 P.3d 700, 711 (Cal. 2000) (“[T]he Legislature is often silent as to the mental element of a crime.”); Kahan, Chevron, supra note 3, at 477 (“Congress is notoriously careless about defining the mental state element of criminal offenses.”).

        [7].   Johnson, supra note 1, at 125.

        [8].   See, e.g., United States v. Muzii, 676 F.2d 919, 920 (2d Cir. 1982); United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495–96 (E.D.N.Y. 1993).

        [9].   342 U.S. 246 (1952); see also United States v. Coté, 504 F.3d 682, 685 (7th Cir. 2007) (tracing the presumption against strict liability to Morissette); United States v. Semenza, 835 F.2d 223, 224 (9th Cir. 1987) (noting the Court in Morissette held that without a clear indication of legislative intent, mens rea should be inferred); Lisa Rachlin, The Mens Rea Dilemma for Aiding and Abetting a Felon in Possession, 76 U. Chi. L. Rev. 1287, 1292 (2009) (tracing the presumption of a mens rea requirement to Morissette and referring to this presumption as “Morissette presumption”).

      [10].   Morissette, 342 U.S. at 250.

      [11].   Id. at 273.

      [12].   Id. at 250–52.

      [13].   Id. at 255 n.14.

      [14].   Paul H. Robinson & Jane A. Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 Stan. L. Rev. 681, 683 (1983).

      [15].   United States v. Bailey, 444 U.S. 394, 403 (1980).

      [16].   Id. at 406 (citation omitted).

      [17].   Model Penal Code § 2.02(1) (1985).

      [18].   Id. § 2.05.  A “violation” is defined as an offense for which “no other sentence than a fine, or fine and forfeiture or other civil penalty is authorized upon conviction.”  Id. § 1.04(5).

      [19].   United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).

      [20].   See United States v. Figueroa, 165 F.3d 111 (2d Cir. 1998).

      [21].   Id. at 116.

      [22].   Model Penal Code § 2.02(1) (1985).  An element counts as “material” unless it relates exclusively to the statute of limitations, jurisdiction, venue, or other like questions.  Id. § 1.13(10).

      [23].   Model Penal Code and Commentaries, supra note 4, § 223.1 cmt. 3(c), at 144.

      [24].   Id.

      [25].   See Stephen F. Smith, Proportional Mens Rea, 46 Am. Crim. L. Rev. 127, 128 (2009) (“Mens rea has traditionally served to prevent disproportional punishment as well as punishment of blameless conduct . . . .”).

      [26].   2 Model Penal Code and Commentaries, § 223.1 cmt. 1, at 146 (1980).

      [27].   Model Penal Code § 211.2 (1985).

      [28].   Id. § 210.3 (defining manslaughter and classifying it as a second-degree felony); id. § 6.06(2) (providing that a person convicted of a felony of the second degree may be imprisoned “for a term the minimum of which shall be fixed by the Court at not less than one year nor more than three years, and the maximum of which shall be ten years”).

      [29].   For an account of the reason why harm matters in criminal law, and of the debate among scholars about whether it ought to matter, see Eric A. Johnson,Criminal Liability for Loss of a Chance, 91 Iowa L. Rev. 59, 118–24 (2005).

      [30].   Iowa Code § 321.278 (2009).

      [31].   Id. § 707.6A.

      [32].   Id.

      [33].   See State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996) (explaining that Iowa courts ordinarily presume that criminal statutes require only general intent, rather than specific intent, and that general intent consists simply of “deliberate or knowing action, as opposed to causing the prohibited result through accident, mistake, carelessness, or absent-mindedness”).

      [34].   Model Penal Code and Commentaries, supra note 4, § 2.02 cmt. 3, at 238 (explaining that a jury must first evaluate the risk posed by the defendant’s conduct and whether such risk is justifiable, and then decide whether the defendant’s disregard of the risk or failure to perceive the risk justifies moral condemnation).

      [35].   Model Penal Code § 210.3(1)(a) (1985) (providing that criminal homicide constitutes manslaughter when it is committed “recklessly”); id. § 210.1 (providing that the “death of another human being” is the result element of all forms of criminal homicide).

      [36].   The drafters’ assumption that every criminal statute must operate on the same model as the manslaughter statute is nowhere clearer than in their explanation for rejecting the felony-murder rule.  The trouble with felony murder, they said, was that it imposes liability for homicide “based on the culpability required for the underlying felony without separate proof of any culpability with regard to the death.”  Model Penal Code and Commentaries, supra note 4,  § 210.2 cmt. 6, at 31.

          [37].     Mark Kelman, Strict Liability: An Unorthodox View, in 4 Encyclopedia of Crime and Justice 1512, 1516 (Sanford H. Kadish ed., 1983) (“[T]he key to seeing strict liability as less deviant in the criminal justice system is . . . to see the real policy fight as a rather balanced one over the relative merits and demerits of precise rules (conclusive presumptions) and vague, ad hoc standards (case-by-case determinations of negligence).”).  Kelman’s operative definition of “strict liability,” like the Model Penal Code’s definition of “absolute liability,” is broad enough to encompass offenses like drag-racing homicide.  Id.

          [38].     Id. at 1517 (raising the possibility that the legislature “might predefine what constitutes ‘reasonable care’”); see also Richard A. Wasserstrom, Strict Liability in the Criminal Law, 12 Stan. L. Rev. 731, 744 (1960) (characterizing antecedent legislative judgments underlying statutes like these as “similar to a jury determination that conduct in a particular case was unreasonable”).

      [39].   For general accounts of the operation of statutes like these, see Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403, 425 (2011); Eric A. Johnson, Mens Rea for Sexual Abuse: The Case for Defining the Acceptable Risk, 99 J. Crim. L. & Criminology 1, 11–20 (2009).

          [40].     See, e.g., Fla. Stat. § 316.193(4) (2006); Idaho Code Ann. § 18-8006 (2012); Mich. Comp. Laws  § 257.625(4) (2010); Neb. Rev. Stat. § 28-306(1), (3)(b) (2008); N.Y. Penal Law § 125.12(2) (McKinney 2009); Wyo. Stat. Ann. § 6-2-106(b)(i) (2011).

          [41].     See, e.g., People v. Garner, 781 P.2d 87, 89 (Colo. 1989) (en banc); State v. Hubbard, 751 So. 2d 552, 563 (Fla. 1999); State v. Creamer, 996 P.2d 339, 343 (Kan. Ct. App. 2000); Reidweg v. State, 981 S.W.2d 399, 406–07 (Tex. App. 1998); Allen v. State, 43 P.3d 551, 569 (Wyo. 2002).

      [42].   See Armijo v. State, 678 P.2d 864, 868 (Wyo. 1984).

      [43].   See People v. Derror, 715 N.W.2d 822, 832 (Mich. 2006) (holding that the Michigan statute defining the offense of operation of a vehicle under the influence of a controlled substance causing death does not require the Government to prove that the defendant knew that he might be intoxicated, but implying that Government is required to prove that defendant knew “that he or she had consumed an intoxicating agent”); Armijo, 678 P.2d at 868 (remarking that the offense of aggravated homicide by vehicle requires proof that the defendant became “intoxicated voluntarily to the point that he is not able to safely drive”); see also State v. Simpson, 53 P.3d 165, 167 (Alaska Ct. App. 2002) (explaining that the offense of driving while intoxicated usually requires proof that the defendant “knowingly ingested intoxicants”).

      [44].   See, e.g., Alaska Stat. § 11.41.120(a)(3) (2010); Colo. Rev. Stat. § 18-3-102(e) (2011); Fla. Stat. § 782.04(1)(a)(3) (2007); 720 Ill. Comp. Stat. 5/9-3.3 (2002); La. Rev. Stat. Ann. § 14:30.1(3) (2007); Mich. Comp. Laws § 750.317a (2003); Minn. Stat. § 609.195(b) (2010); N.J. Stat. Ann. § 2C:35-9 (West 2005); 18 Pa. Cons. Stat. § 2506(a) (1998); R.I. Gen. Laws § 11-23-6 (2002); Tenn. Code Ann. § 39-13-210(a)(2) (2010); Vt. Stat. Ann. tit. 18, § 4250(a) (2002); Wash. Rev. Code § 69.50.415 (2007); Wis. Stat. § 940.02(2)(a) (2005); Wyo. Stat. Ann. § 6-2-108 (2011).

      [45].   See People v. Faircloth, 599 N.E.2d 1356, 1360 (Ill. App. Ct. 1992).

          [46].     See Alaska Stat. § 11.41.120(a)(3) (providing explicitly that “the death is a result that does not require a culpable mental state”); Faircloth, 599 N.E.2d at 1360 (interpreting Illinois’s statute not to require a culpable mental state with respect to the result: “The defendant just needs to make a knowing delivery of a controlled substance, and if any person then dies as a result of taking that substance, the defendant is responsible for that person’s death.”).

          [47].     See Faircloth, 599 N.E.2d at 1360.

          [48].     See, e.g., R.A. Duff, Criminalizing Endangerment, 65 La. L. Rev. 941, 960–61 (2005) (describing the relative advantages and disadvantages of per se rules, on the one hand, and vaguer, ad hoc standards, on the other); Kelman, supra note 37, at 1517 (describing the individual challenges that arise from vague terms, such as inconsistency and bias in jury verdicts, as well as from predefined terms, such as imprecise application to defendants of differing circumstances).

          [49].     See Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972) (arguing that one of the vices of vague criminal laws is that they “impermissibly delegate[] basic policy matters to . . . juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application”); People v. Pinckney, 328 N.Y.S.2d 550, 553–54 (N.Y. App. Div. 1972) (upholding the dismissal of a reckless-manslaughter charge against the supplier of a fatal dose of heroin on the ground that drug-induced homicides are better addressed by the adoption of specific legislation: “In our opinion, if the Legislature had intended to include homicide by the selling of dangerous drugs, it would have amended the sections of the Penal Law relating to homicide.”); Oliver Wendell Holmes Jr., The Common Law 120–26 (Little, Brown and Co. 1984) (1881) (“[I]t is very desirable to know as nearly as we can the standard by which we shall be judged at a given moment . . . .”).

          [50].     See Douglas N. Husak, Reasonable Risk Creation and Overinclusive Legislation, 1 Buff. Crim. L. Rev. 599, 620–21 (1998) (arguing that offenses like drunk driving should either (1) be redefined to require proof of culpability—that is, recklessness—with respect to the ultimate social harm that is the target of the offense or (2) be replaced by “a more general offense of risk creation”); Cynthia Lee, “Murder and the Reasonable Man” Revisited: A Response to Victoria Nourse, 3 Ohio St. J. Crim. L. 301, 305–06 (2005) (“[T]he jury is a better institutional actor than the legislature when it comes to deciding questions of culpability . . . .”); William J. Stuntz, Unequal Justice, 121 Harv. L. Rev. 1969, 1974, 2036–39 (2008) (arguing that justice and racial equality can best be served by “defin[ing] criminal prohibitions more vaguely”).

      [51].   See Holmes, supra note 49, at 58–59.

      [52].   Johnson, supra note 1, at 125.

      [53].   Spiropoulos, supra note 1, at 919.

      [54].   United States v. Bailey, 444 U.S. 394, 403, 406 (1980) (explaining that the Model Penal Code brought about “a general rethinking of traditional mens-reaanalysis” and identifying as one facet of this general rethinking the recognition that the question of culpability must be faced separately with respect to each material element).

      [55].   United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001); see also, e.g., United States v. Figueroa, 165 F.3d 111, 115–16 (2d Cir. 1998); Noblit v. State, 808 P.2d 280, 285 (Alaska Ct. App. 1991); People v. Busch, 113 Cal. Rptr. 3d 683, 688–89 (Cal. Ct. App. 2010).

      [56].   511 U.S. 600 (1994).

      [57].   Id. at 619.

      [58].   530 U.S. 255 (2000).

      [59].   Id. at 256–57 (quoting United States v. X-Citement Video, 513 U.S. 64, 72 (1994)).

      [60].   556 U.S. 568 (2009).

      [61].   Technically, this section defines a “sentencing enhancement,” rather than a separate offense.  See Harris v. United States, 536 U.S. 545, 553 (2002); see also Brief for the Petitioner at 4, Dean v. United States, 556 U.S. 568 (2009) (No. 08-5274) (acknowledging that the district court judge, rather than the jury, was responsible for deciding whether the discharge element in 18 U.S.C. § 924(c)(1)(A)(iii)(2006) had been proved).  This distinction has important procedural consequences.  See Harris, 536 U.S. at 553 (noting that the brandishing and discharge of a firearm can be a factor in sentencing).  From a substantive perspective, though, the sentencing enhancement in § 924(c)(1)(A)(iii) does exactly what many offense elements do: trigger harsher penalties for more serious criminal conduct. See Dean, 556 U.S. at 575 (comparing the discharge provision to the felony-murder rule, in which proof that the defendant caused the victim’s death results in the imposition of increased punishment).  The Court in Dean, accordingly, appears to have assigned no substantive significance to the fact that the discharge provision defines a sentencing enhancement, rather than a separate offense.  See id. at 576–77 (explaining why the presumption of scienter does not require the assignment of a mental state to the discharge provision, and so tacitly rejecting the government’s argument, see Brief for United States at 10, Dean, 556 U.S. 568 (No. 08-5274), that the presumption of scienter does not apply at all to sentencing enhancements).

      [62].   Dean, 556 U.S. at 571 (quoting 18 U.S.C. § 924(c)(1)(A)(iii)).

      [63].   See id. at 570 (“At trial, Dean admitted that he had committed the robbery . . . .”).

      [64].   See Brief for United States, supra note 61, at 4 (“Petitioner testified that when he was removing money from the teller station, he ‘pulled the trigger’ on the pistol he was carrying while trying to transfer the gun from one hand to the other.”).

      [65].   Id.

      [66].   Dean, 556 U.S. at 570.

      [67].   Id. at 571.

      [68].   Id. at 576–77.

      [69].   Id. at 574–77.

      [70].   Id. at 575.

      [71].   Id.

      [72].   Staples v. United States, 511 U.S. 600, 619 (1994).  One commentator has argued that the Staples rule was “rejected” in Flores-Figueroa v. United States, 556 U.S. 646 (2009), which was decided just a week after DeanSee The Supreme Court, 2008 Term — Leading Cases, 123 Harv. L. Rev. 153, 321 (2009) [hereinafter Leading Cases].  This is wishful thinking.  In Flores-Figueroa, the Supreme Court did not advert to the mens rea principle at all, much less “reject” the longstanding Staples limitation.  The Court’s decision in Flores-Figueroa was based almost exclusively on what the Court identified as a rule of “ordinary English grammar,” namely, that “where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action . . . .”  Flores-Figueroa, 556 U.S. at 650.  Thus, the claim that Flores-Figueroa overruled Staples not only misreads Flores-Figueroa; it overlooks a fundamental distinction between two kinds of interpretive rules: substantive canons and language canons.  See In reEstate of Tanner, 295 S.W.3d 610, 628 n.15 (Tenn. 2009) (“Substantive canons provide presumptions for interpreting ambiguous statutes that explicitly consider the substance of the law being interpreted.  These canons stand in contrast with language canons—like the last antecedent rule—which only provide presumptions for interpreting words and syntax.”).

      [73].   See Smith, supra note 25 (criticizing the Staples rule for “equat[ing] ‘innocence’ with ‘moral blamelessness’” and urging the adoption of a “proportionality-based approach to mens rea selection”); Leading Cases, supra note 72 (arguing that the Staples limitation—which the authors bizarrely treat as attributable to a misreading of Supreme Court precedent—fails properly to “align punishment with culpability”).  But see John Shepard Wiley Jr., Not Guilty by Reason of Blamelessness: Culpability in Federal Criminal Interpretation, 85 Va. L. Rev. 1021, 1024 (1999) (praising the Staples rule, which the author identifies as the “rule of mandatory culpability”).

      [74].   Dean, 556 U.S. at 578–83 (Stevens, J., dissenting).

      [75].   Id. at 581–82.

      [76].   Id. at 582.

      [77].   The majority in Dean acknowledged that the discharge element was designed to measure the degree of risk posed by the actor’s conduct: “The sentencing enhancement in subsection (iii) accounts for the risk of harm resulting from the manner in which the crime is carried out.”  Id. at 576 (majority opinion).  “A gunshot in such circumstances,” the majority explained, “increases the risk that others will be injured, that people will panic, or that violence (with its own danger to those nearby) will be used in response.”  Id.

      [78].   Id. at 583 (Stevens, J., dissenting) (emphasis added).

      [79].   Id. at 576 (majority opinion).

      [80].   Id.

      [81].   Model Penal Code § 211.2 (1985).

      [82].   See Eric A. Johnson, Knowledge, Risk, and Wrongdoing: The Model Penal Code’s Forgotten Answer to the Riddle of Objective Probability, 59 Buff. L. Rev. 507, 560–64 (2011) (discussing the speedometer example).

      [83].   See, e.g., State v. Kristenmacher, 436 N.W.2d 168, 171 (Neb. 1989) (holding that the fact-finder’s assessment of risk in a manslaughter prosecution is “purely objective”); State v. Ebinger, 603 A.2d 924, 925 (N.H. 1992) (holding in a prosecution for negligent homicide that the existence of a “‘substantial and unjustifiable risk’ is determined by an objective test, not by reference to the defendant’s subjective perception”); State v. Robinson, 63 P.3d 105, 108 (Utah Ct. App. 2003) (holding in a prosecution for manslaughter that “the magnitude of the risk itself . . . is an objective matter”); State v. Brooks, 658 A.2d 22, 27 (Vt. 1995) (holding that the involuntary manslaughter statute requires “the jury to objectively assess the risk”).

      [84].   For example, the sentencing provisions of Alaska’s criminal code say that an offense may be considered aggravated where “the defendant’s conduct created a risk of imminent physical injury to three or more persons, other than accomplices.”  Alaska Stat. § 12.55.155(c)(6) (2010).  But cf. Model Penal Code § 210.6 (1985) (making it an aggravating factor in a homicide case that “the defendant knowingly caused a great risk of death to many persons”) (emphasis added).

      [85].   Heidi M. Hurd & Michael S. Moore, Negligence in the Air, 3 Theoretical Inquiries L. 333, 358 (2002) (“Indeterministic microphysics to the side, there is no such thing as an objective risk; there are only risks to be perceived from certain epistemic vantage points.”); see also Brian Greene, The Elegant Universe 93, 116 (2003) (explaining why most indeterminacy is confined to the quantum realm: “The smallness of [Planck’s constant] confines most of these radical departures from life-as-usual to the microscopic realm . . . .”).

      [86].   Greene, supra note 85, at 105 (“We are accustomed to probability showing up in horse races, in coin tosses, and at the roulette table, but in those cases it merely reflects our incomplete knowledge.”).

      [87].   Pierre Simon, Marquis de Laplace, A Philosophical Essay on Probabilities 4  (F.W. Truscott & F.L. Emory trans., 1902) (1814).

      [88].   Id.

      [89].   Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law 28 (2009) (“Risk is always relative to someone’s perspective, a perspective that is defined by possession of certain information but not other information . . . .”); see also Long v. State, 931 S.W.2d 285, 289 (Tex. Crim. App. 1996) (concluding that a stalking statute’s use of the phrase “reasonably likely” was ambiguous because the statute did not specify the perspective from which this probability determination was to be made).

      [90].   See Holmes, supra note 49, at 69–70 (“[Where a bullet misses its aim] the act has produced the whole effect possible to it in the course of nature.  It is just as impossible that that bullet under those circumstances should hit that man, as to pick an empty pocket.”); Lawrence Crocker, Justice in Criminal Liability: Decriminalizing Harmless Attempts, 53 Ohio St. L.J. 1057, 1098 (1992) (“A good current guess might be that the world is not deterministic, but that for macro-level phenomena there is little or no room for physically possible events that do not occur.  Thus the probability in the fundamental physical sense of the close miss bullet’s hitting may be zero, on fundamental physical probabilities, even if determinism is false.”).

      [91].   Brief for the Petitioner, supra note 61, at 2 (“The bullet went through a partition, ricocheted off a computer, and landed on the teller counter.”).

      [92].   Dean v. United States, 556 U.S. 568, 576 (2009).

      [93].   Alexander & Ferzan, supra note 89, at 28.

      [94].   See Eric A. Johnson, Is the Idea of Objective Probability Incoherent?, 29 L. & Phil. 419, 429–30 (2010); Johnson, note 82, at 561–64 (describing the different ways that one knows things, such as knowledge of truth and knowledge by acquaintance).

      [95].   Model Penal Code § 2.02(2)(c)–(d) (1985); see also Commonwealth v. Pierce, 138 Mass. 165, 178 (1884) (explaining that the criminal law measures risk on the basis of “the degree of danger which common experience shows to attend the act under the circumstances known to the actor”).

      [96].   Model Penal Code § 2.02(2)(c).

      [97].   See Holmes, supra note 49, at 58–59 (“[T]he lawmaker may consistently treat acts which, under the known circumstances, are felonious . . . as having a sufficiently dangerous tendency to be put under a special ban.”) (emphasis added); Johnson, supra note 39, at 16 (“In statutes that define offenses like drunk-driving homicide and drug-induced homicide, the legislature takes a foolproof approach to identifying just those cases where the defendant knew of the circumstances that made his or her conduct unjustifiably risky: namely, it requires the Government to prove that knowledge.”).

      [98].   See People v. Derror, 715 N.W.2d 822, 832 (Mich. 2006); cf. State v. Simpson, 53 P.3d 165, 167 (Alaska Ct. App. 2002) (explaining that the offense of driving while intoxicated usually requires proof that the defendant “knowingly ingested intoxicants”).

      [99].   See Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (explaining that probable cause is an “objective standard[] of conduct,” which does not “depend on the subjective state of mind of the officer”); Terry v. Ohio, 392 U.S. 1, 21–22 (1968) (identifying the reasonable suspicion standard as an “objective standard”).

    [100].   Henry v. United States, 361 U.S. 98, 102 (1959) (“Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.”); see also Devenpeck, 543 U.S. at 153 (“Our cases make clear that an arresting officer’s state of mind (except for the facts he knows) is irrelevant to the existence of probable cause.”).

    [101].   Model Penal Code § 2.02(2)(c)–(d).  This is not to say that these elements invariably require the assignment of a mental state.  In a few nonstandard criminal statutes, the existence of objective risk is inferred from how things turned out.  Take, for example, statutes that impose strict criminal liability on defendants who engage in sexual relations with children under a certain critical age.  In these statutes, the only required mental state is the defendant’s knowledge that he was engaged in sexual relations with another person.  See Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 Am. U. L. Rev. 313, 385–91 (2003) (summarizing the law in all fifty states).  Of course, the defendant’s mere knowledge that he was engaged in sexual relations with another person cannot, by itself, provide a basis for inferring that there was an unacceptable probability that his partner was underage.  The only basis for this inference is the fact that his partner turned out, after the fact, to be underage.  In other words, from the fact that the defendant’s partner turned out to be underage, the legislature infers that the defendant could not have remained unaware of facts in which there inhered a substantial risk that the partner was underage.  See H.R. Rep. No. 99-594, at 6195–96 (1986) (justifying the imposition of strict liability for sexual abuse on the ground that “no credible error of perception would be sufficient to recharacterize a child [who is under twelve years old] as an appropriate object of sexual gratification”) (quoting 2 Model Penal Code § 213.6 cmt. 2, at 414 (1980)).

    [102].   See George P. Fletcher, The Theory of Criminal Negligence: A Comparative Analysis, 119 U. Pa. L. Rev. 401, 427–30 (1971) (explaining the distinction “between the legality of conduct and the culpability of the individual who engages in the conduct” and attributing to the Model Penal Code “an appreciation for [this] distinction”).

    [103].   Paul H. Robinson, A Functional Analysis of Criminal Law, 88 Nw. U. L. Rev. 857, 878 (1994); Herbert Wechsler & Jerome Michael, A Rationale for the Law of Homicide: II, 37 Colum. L. Rev. 1261, 1275 (1937) (explaining the culpability component of criminal negligence).

    [104].   Morissette v. United States, 342 U.S. 246, 251 (1952).

    [105].   Holmes, supra note 49, at 50.

    [106].   Id. at 75.

    [107].   Id. at 55 (emphasis added).

    [108].   Id. at 75.

    [109].   Id. at 49.

    [110].   Id. at 55.

    [111].   479 P.2d 946 (Wash. Ct. App. 1971).

    [112].   Id. at 948.

    [113].   This treatment of the actus reus is not unprecedented.  J.W.C. Turner argued in The Mental Element in Crimes at Common Law, 6 Cambridge L.J. 31, 47–48 (1936), that the offender’s knowledge sometimes counts as an ingredient of the actus reus, rather than the mens rea.  In discussing the offense of statutory rape, Turner argued that the addition of a requirement of knowledge of the victim’s age to the offense definition “would not affect the mens rea of the accused person, but it would merely add another necessary fact to the actus reus.”  Id.  Contra H.L.A. Hart, Negligence, Mens Rea and Criminal Responsibility, in Punishment and Responsibility: Essays in the Philosophy of Law 136, 144–45 (1968) (referring to Turner’s view as a “great incoherence”).

    [114].   780 F.2d 1140 (4th Cir. 1986).

    [115].   Id. at 1142–43 (“In the absence of an explicit statement that a crime requires specific intent, courts often hold that only general intent is needed.”).

    [116].   530 U.S. 255 (2000).

    [117].   Id. at 268 (emphasis omitted).

    [118].   United States v. Francis, 164 F.3d 120, 121 (2d Cir. 1999); see also United States v. Campa, 529 F.3d 980, 1006 (11th Cir. 2008); United States v. Jackson, 248 F.3d 1028, 1030–31 (10th Cir. 2001); United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997), cert. denied, 520 U.S. 1218 (1997); United States v. Martinez, 49 F.3d 1398, 1401 (9th Cir. 1995); United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992); State v. Dolsby, 145 P.3d 917, 919–20 (Idaho Ct. App. 2006); State v. Warner, 564 N.E.2d 18, 48 (Ohio 1990).

    [119].   Admittedly, courts sometimes make the mistake of thinking that the difference between general intent and specific intent is reducible to the difference between two mental states—for example, intentionally and knowingly, or knowingly and recklessly.  See, e.g., United States v. Bailey, 444 U.S. 394, 405 (1980) (“In a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.”); Model Penal Code § 2.02 explanatory note, at 228 (1985) (positing “rough correspondence between . . . the common law requirement of ‘general intent’” and the Model Penal Code’s use of recklessness as a default mental state).

    [120].   See Reilly v. State, 55 P.3d 1259, 1262–63 (Wyo. 2002) (explaining that a jury should not be given instructions on general and specific intent, “due to their ‘vagueness and general failure to enlighten juries’”).

    [121].   See, e.g., State v. Sivak, 852 A.2d 812, 815–16 (Conn. App. Ct. 2004) (“Assault in the first degree is a specific intent crime.  It requires that the criminal actor possess the specific intent to cause serious physical injury to another person.”); T.S. v. State, 965 So.2d 1288, 1290 (Fla. Dist. Ct. App. 2007) (holding that aggravated battery is a specific intent crime because it requires that the defendant intentionally or knowingly cause great bodily harm); State v. Fuller, 414 So. 2d 306, 309–10 (La. 1982) (holding that second-degree assault is a specific-intent offense because it requires that the defendant intentionally bring about serious bodily injury).

    [122].   People v. Hood, 462 P.2d 370, 378 (Cal. 1969).

    [123].   Id.

    [124].   But see David Hume, An Enquiry Concerning Human Understanding: A Letter from a Gentleman to His Friend in Edinburgh 42–45 (Steinberg ed. 1977).  Hume would no doubt have said that even the squeezing of the trigger is a “consequence” of another event.  Hume pointed out that when a person “wills” a bodily movement, the willed bodily movement sometimes occurs and sometimes doesn’t.  Id. at 43.  “A man, suddenly struck with palsy in the leg or arm, or who had newly lost these members, frequently endeavors, at first, to move them and employ them in their usual offices.”  Id.  From the fact that a bodily movement sometimes follows an exercise of the will and sometimes does not, it can be inferred that the bodily movement is really a causal consequence of the earlier mental event.  The events are not indivisible.

    [125].   See, e.g., People v. Whitfield, 868 P.2d 272, 278 (Cal. 1994) (noting that the court had “recently reaffirmed that murder is a specific intent crime”).

    [126].   Cf. Donald Davidson, Essays on Actions and Events 61 (2d ed. 2001) (arguing that after the movement of your finger on the trigger, “there are no further actions, only further descriptions”).

    [127].   Cal. Penal Code § 246.3 (Deering 2008).

    [128].   People v. Robertson, 95 P.3d 872, 879 (Cal. 2004) (holding that a defendant who believed that the firearm was unloaded would not be guilty of violating statute).  The California courts also have held that Cal. Penal Code § 246, which prohibits discharging a firearm “at an inhabited dwelling house, occupied building, [or] occupied motor vehicle,” likewise “is a general intent crime . . . , which does not require proof of a specific intent to accomplish an objective, such as to injure, kill, or frighten.”  In re Jerry R., 35 Cal. Rptr. 2d 155, 160 (Cal. Ct. App. 1994).  This holding reinforces the view that an intent to bring about any consequence short of the social harm is a general intent.

    [129].   People v. Overman, 24 Cal. Rptr. 3d 798, 806 (Cal. Dist. Ct. App. 2005).

    [130].   See People v. Colantuono, 865 P.2d 704, 709 (Cal. 1994) (concluding that the criminal intent for assault with a deadly weapon is a form of general intent); State v. Campbell, 39 P.3d 97, 100 (Kan. Ct. App. 2002) (explaining that intent to “caus[e] physical contact with another person” is a form of general intent); Commonwealth v. Ford, 677 N.E.2d 1149, 1151–52 (Mass. 1997) (holding that assault and battery by means of a dangerous weapon are general-intent crimes).

    [131].   The term “specific-intent crime” also encompasses crimes like burglary, which require proof that the defendant intended “to do some further act” when he engaged in the proscribed conduct.  People v. Hood, 462 P.2d 370, 378 (Cal. 1969).  Some scholars have argued that the term “specific intent” should be used exclusively to refer to crimes of this sort.  See George E. Dix & M. Michael Sharlot, Criminal Law Cases and Materials 315 (6th ed. 2008) (arguing that specific intent “may usefully be regarded as meaning a mental state that has as its object a matter which is not an element of the crime”).  This argument, though, fails to account for the fact that courts routinely classify intent-to-kill murder as a specific-intent offense.  It also fails to account for decisions like People v. Hesslink, 213 Cal. Rptr. 465, 470 (Cal. Ct. App. 1985), where the court applied Justice Traynor’s definition of specific intent—“intent to do some further act or achieve some future consequence”—to California’s extortion statute.  The court said that the required intent to obtain the property of another qualified as a specific intent to achieve “a future consequence,” even though the statute required that the defendant succeed in “obtaining . . . property from another” as part of the proscribed conduct.  Id. at 470–71.

    [132].   This refinement of the standard definition also has the benefit of giving the distinction between general and specific intent some real intuitive content.  There is a very basic, morally intuitive distinction between (1) somebody who really wants to bring about harm and (2) somebody who merely accepts the possibility of bringing about harm by, say, intentionally discharging a firearm under dangerous circumstances.  There is a moral difference, as philosopher Antony Duff has said, “between being guided by wrong reasons and not being guided by right reasons.”  See Duff, supra note 48, at 945–46.  Duff explains:

If I wrongfully attack you, the harm that I intend figures in my reasons for acting as I do: I act thus because I believe that by doing so I will harm you—though that is not a reason by which I should be guided.  If I culpably endanger you, by contrast, my reasons for acting as I do may be perfectly legitimate; what goes wrong is that I am not guided by the reason against acting thus . . . that the risk of harm to you provides.


    [133].   Stuart Taylor Jr., The Last Moderate, Am. Lawyer, June 1990, available at http://stuarttaylorjr.com/content/last-moderate.

    [134].   Dean v. United States, 556 U.S. 568, 578–83 (2009) (Stevens, J., dissenting).

    [135].   Taylor, supra note 133.

    [136].   Justice Stevens’s dissent in Dean is mentioned, but only in passing, in a couple of law review articles focusing generally on the Court as a whole.  Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court’s First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221, 233 (2010); Madhavi M. McCall et al., Criminal Justice and the U.S. Supreme Court’s 20082009 Term, 29 Miss. C. L. Rev. 1, 26 (2010).

    [137].   See Brief for the Petitioner, supra note 61, at 26 (arguing that a mental state of “knowingly” was required).

    [138].   See United States v. Brown, 449 F.3d 154, 158–59 (D.C. Cir. 2006) (applying the mental state of “recklessly” to the discharge element in § 924(c)(1)(A)(iii)).

    [139].   776 F.2d 46 (2d Cir. 1985).

    [140].   Id. at 48.  When Falu was convicted, this sentence enhancement was codified in 21 U.S.C. § 845(a).  It later was moved, without substantial alteration, to 21 U.S.C. § 860(a).

    [141].   See L. Buckner Inniss, A Moving Violation? Hypercriminalized Spaces and Fortuitous Presence in Drug Free School Zones, 8 Tex. F. on C.L. & C.R. 51, 52 (2003) (“Over the last thirty years, both the federal government and a majority of states have enacted statutes that prohibit certain types of conduct involving illicit drugs in or near schools, school buses, or other youth or family-related facilities and locales.”).

    [142].   Falu, 776 F.2d at 48.

    [143].   21 U.S.C. § 860(a).

    [144].   Falu, 776 F.2d at 49.

    [145].   Id. at 50; see also United States v. Pitts, 908 F.2d 458, 461 (9th Cir. 1990) (adopting Falu’s reasoning with regard to mens rea and the proximity element of § 860(a)—then § 841(a)).

    [146].   United States v. Nieves, 608 F. Supp. 1147, 1149 (S.D.N.Y. 1985) (emphasis added).

    [147].   Falu, 776 F.2d at 49.

    [148].   Model Penal Code § 2.02(2)(c)–(d) (1985).

    [149].   See Taylor, supra note 133 (“On a Court more polarized than ever between liberal and conservative blocs, Stevens plays a unique and valuable role: He stands alone in the moderate, common law, self-consciously apolitical tradition of justices like Benjamin Cardozo, John Marshall Harlan, Potter Stewart, and Lewis Powell, Jr.  It is a tradition skeptical of absolutes and fixed rules, open to experience and facts, sensitive to competing values.”).

    [150].   Even in states whose criminal codes were heavily influenced by the Model Penal Code, the courts have been reluctant to enforce the Code’s demand that every element be assigned a mental state.  See, e.g., People v. Mitchell, 571 N.E.2d 701, 704 (N.Y. 1991) (refusing to assign a mental state to an aggravating element in theft statute); State v. Rutley, 171 P.3d 361, 364–65 (Or. 2007) (refusing to assign mental state to the proximity element in a statute proscribing the sale of drugs within 1000 feet of a school).

    [151].   See supra notes 111–115 and accompanying text.