Western Michigan University Thomas M. Cooley Law Review - Volume 33 | 2016 | Summer Issue by Cooley Law School

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Sharon M. Hanlon Hon. Stephen J. Markman James C. Morton Edward H. Pappas Hon. Richard F. Suhrheinrich

James W. Butler III Scott A. Dienes Hon. Jane E. Markey Kenneth V. Miller Lawrence P. Nolan, Chairman Hon. Bart Stupak Dennis A. Swan

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT The Honorable Thomas E. Brennan DEANS EMERITI Michael P. Cox, Dean and Distinguished Professor Emeritus Keith J. Hey, Dean and Distinguished Professor Emeritus Robert E. Krinock, Dean and Professor Emeritus (deceased) DISTINGUISHED PROFESSORS EMERITI Curt Benson Kathleen Butler Karen Chadwick Pat Corbett Mark Dotson Judith Frank Emily Horvath Eileen Kavanagh R. Joseph Kimble John Marks Lawrence Morgan Nora Pasman-Green Philip Prygoski Charles Senger Brent Simmons Gina Torielli Cynthia Ward Nancy Wonch

David Berry Evelyn Calogero Dennis Cichon David Cotter Cynthia Faulkner Elliot Glicksman Peter Jason Peter Kempel (deceased) Dorean Koenig Dan McNeal Maurice Munroe James Peden John Rooney Chris Shafer Norman Stockmeyer Ronald Trosty William Weiner Ann Miller Wood

Ronald Bretz Terrence Cavanaugh Julie Clement Mary D’Isa Norman Fell James Hicks John Kane Mara Kent Dena Marks Helen Mickens Charles Palmer Ernest Phillips Marjorie Russell Jane Siegel John Taylor William Wagner F. Georgann Wing

PROFESSORS EMERITI Sherry Batzer Lewis Langham Donna McKneelen Dan Ray

James Carey Ashley Lowe Florise Neville-Ewell Kevin Scott Karen Truszkowski

Heather Garretson Paul Marineau Norman Plate Lorna Patricia Thorpe-Mock

DEANS Don LeDuc President, Dean, and Professor of Law Tracey Brame Assistant Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Lisa Halushka Assistant Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Jeffrey L. Martlew Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law

James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Assistant Dean and Associate Professor

Kathy Swedlow Assistant Dean and Professor of Law

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career and Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services

PROFESSORS Frank C. Aiello Brendan Beery Paul Carrier Mark Cooney Renalia DuBose Anthony Flores Marjorie Gell Richard C. Henke Tonya Krause-Phelan Daniel W. Matthews Marla Mitchell-Cichon Monica Nuckolls Robert Savage Dan Sheaffer Jeffrey Swartz Christopher Trudeau

Tammy Asher Erika Breitfeld Terrence Cavanaugh Victoria Cruz-Garcia David Finnegan Dustin Foster Katherine Gustafson Barbara Kalinowski Gerald MacDonald Michael McDaniel Michael K. Molitor Kimberly Oâ&#x20AC;&#x2122;Leary Devin Schindler Paul Sorensen David Tarrien Gerald Tschura Victoria Vuletich

Gary Bauer Jeanette Buttrey Bradley Charles Lisa DeMoss Gerald Fisher Karen Fultz Christopher Hastings Linda Kisabeth Mable Martin-Scott Nelson Miller Martha Moore Lauren Rousseau John N. Scott Stevie J. Swanson Patrick Tolan Joan Vestrand

ADJUNCT PROFESSORS Mustafa Ameenuddin Byron Babbish Brendon Basiga Chad Brown Joseph Burgess Gerald Cavallier Michael Costello Thomas Curran Michelle Donovan James Dworm Donald Frank Rachel Glogowski Donald Hinkle Michael Hughes Sue Ellen Krick Adam Levine Matthew Marin Gary Mitchell Patrick Muscat Steven Owen Kevin Peterson Kerry Przybylo Robert Rothman Sara Schimke Carly Self Ben Shotten Cari Sullivan Gregory Ulrich Graham Ward

Rosemarie Aquilina Anne Bachlefifer Kenzi Bisbing Melissa Brown William Burleson Steven Cernak James Cunningham Stacey Dinser Thomas Doyle Steven Fantetti Craig Frederick Judith Gracey Aletha Honsowitz Dale Iverson Michael Leffler Ronald Lowe Claire Membiela Paul Monicatti Nicholas Nazaretian Joseph Parrish Margaret Philpot-Baditoi Archana Rajendra Ronald Sangster Charles Schutze Frank Seyferth Beth Simonton-Kramer Beth Swagman Vanophem, John Marie Wolfe

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Andrew Arena Sam Badawi Scott Brinkmeyer Robert Buchanan Eric Carver Martha Cook Janice Cunningham Robert Donaldson Mike Dunn Robert Fleming Richard Garcia Christi Henke Catherine Hoort Julie Janeway Shari Lesnick Peggy MacDougall Robert Metzgar Mikhail Murshak Peter Oâ&#x20AC;&#x2122;Connell Andre Perron John Pierce Dale Reitberg Traci Schenke Kim Seace Michael Shea Robert Stocker Brad Sysol Michael Walton Zena Zumeta

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW MICHAELMAS 2015 BOARD OF EDITORS Elizabeth Devolder Editor-In-Chief Karen Wentz Interim Editor-In-Chief

Kendall Perry Managing Editor

Christopher Marker Symposium Editor

Rachel Sexton Subcite Editor

William Bellor-Yeh Articles Editor

Rachel Kovelle Interim Subcite Editor

Sarah Colling Interim Articles Editor And Solicitation Editor

Nick Brown Business Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS JD Baldwin Debra Berg-Simon Nardeen Dalli Zachariah Green

Marisa Grifka Jennifer Hanna Sarah Harris Mariam Ibrahim Kyle Oâ&#x20AC;&#x2122;Mara

Cristina Solis Skyler SpurlingNewsome Holliann Willekes

SENIOR ASSOCIATE EDITOR Dalton Carty Ian Rothe

ASSOCIATE EDITORS Matthew Secrest Samuel Warren

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Joseph Kimble, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School Chris Shafer, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School The Honorable Richard F. Suhrheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Western Michigan University Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty-Second District Court, Retired The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Mark Cooney Faculty Advisor

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Michaelmas 2015 Recipient: Ian Rothe EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Michaelmas 2015 Recipients: Mariam Ibrahim, Sarah Harris, and Zachary Green DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Michaelmas 2015 Recipient: Elizabeth Devolder

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WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW Hilary 2016 BOARD OF EDITORS Karen Wentz Editor-In-Chief

Kendall Perry Managing Editor

Christopher Marker Symposium Editor

Bailey Vos Interim Managing Editor

Courtney Sierra Interim Symposium Editor

Rachel Kovelle Subcite Editor

Sarah Colling Articles Editor and Solicitation Editor

Daniel Boocher Interim Subcite Editor

Patrick MacRae Interim Solicitation Editor

Nicholas Brown Business Editor

Jacob Witte Interim Articles Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Sheila Burke Lisa Thomas

Jennifer Hanna Nardeen Dalli Luciana Viramontes

Katie Plegue Julie Lawler-Hoyle

MANAGING ASSOCIATE EDITORS David Beaumont Ben Wyss

SENIOR ASSOCIATE EDITORS Matthew Secrest Samuel Warren Kyle Oâ&#x20AC;&#x2122;Mara

ASSOCIATE EDITORS Inna Volkova Jason Puscas Ananya Juneja Natasha Eversole Alicia Kellogg Matthew Blunt Nadia Chami

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2016 Recipients: Kyle O'Mara and Samuel Warren EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2016 Recipients: David Beaumont, Jason Puscas, Luciana Viramontes, and Benjamin Wyss DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Hilary 2016 Recipients: Sarah Colling and Christopher Marker

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WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW TRINITY 2016 BOARD OF EDITORS Karen Wentz Editor-In-Chief

Bailey Vos Managing Editor

Luciana Viramontes Interim Editor-In-Chief

Daniel Boocher Subcite Editor

Courtney Sierra Symposium Editor

Jacob Witte Articles Editor

Patrick MacRae Solicitation Editor

Shane Henry Interim Articles Editor

Mark Cooney Faculty Advisor

ASSISTANT EDITORS Sheila Burke Kyle Curtis Zachariah Green Lyndsey Hof

Nicholas Langenkamp Julie Lawler-Hoyle Peter J. Mancini Jonathan Paasch

Katie Plegue Danielle Stone Lisa StrelchukThomas

MANAGING ASSOCIATE EDITORS David Beaumont Ben Wyss

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SENIOR ASSOCIATE EDITORS Matthew Blunt Nadia Chami

Natasha Eversole Ana Juneja Alicia Kellogg

Jason Puscas Inna Volkova

ASSOCIATE EDITORS Simone Genus Nicholas Gobbo

Najla Mackie Clinton Rosekopf

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Gary Schuette Shaydon Weaver

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2016 Recipient: Zach Green Nadia Chami Julie Lawler-Hoyle EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2016 Recipients: Nicholas Langenkamp Kyle Curtis Gary Schuette Peter Mancini DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Trinity 2016 Recipient: Karen Wentz Bailey Vos Daniel Boocher

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Contents

Volume 33

2016

Summer Issue

From the Editor ..........................................................................xix Police Militarization Symposium Remarks Professor Tonya Krause Phelan ..................................................... 1 Undersheriff Michelle LaJoye-Young ........................................... 3 Gerry Faber .................................................................................... 7 Brian Lennon .............................................................................. 13 Kara Dansky ................................................................................ 17 Joseph Jones ................................................................................ 23 Darel Ross ................................................................................... 31 Articles FLORIDAâ&#x20AC;&#x2122;S TRUE ORIGINS OF DIGITAL GOODS ACT: A LOOK AT PIRACY, PREEMPTION, PRIVACY, AND PERSONAL JURSIDICTION-OH MY! Ronald Sutton .............................................................................. 37 BLIND IMITATION: THE REVOLTING PERSISTENCE OF BOWERS V. HARDWICK L. Joe Dunman ............................................................................. 67

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HEALTH CARE QUALITY IMPROVEMENT ACT: PEER REVIEW, PROCEDURE, PROCESS, AND PRIVACY Gregory Nowakowski, Michael Nowakowski, Theresamarie Mantese, and Jordan B. Segal ............................. 111 Comments LET’S GET RID OF THIS FRACKING PROBLEM: WHY MICHIGAN SHOULD FOLLOW NEW YORK’S EXAMPLE AND BAN FRACKING Nicholas Brown ......................................................................... 141 CURRICULUM AND CONCEALED CARRY: A PROPOSED REVISION OF MICHIGAN’S CONCEALED WEAPONS LAW Kyle T. O’Mara.......................................................................... 169 USE OF ARMED DRONES BY DOMESTIC LAW ENFORCEMENT: PRESENCE AND THE FOURTH REASONABLENESS FACTOR Alexandra A. Breshears ............................................................. 183

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FROM THE EDITOR The Western Michigan Thomas M. Cooley Law Review board of editors is pleased to bring you the first issue in Volume 33. We are excited to announce that Law Review has transitioned to a bi-annual publication schedule with this Edition being our first Summer Edition. We look forward to bringing you our first Winter Edition in 2017. First, we have included speaker comments from the Western Michigan Thomas M. Cooley Law Review’s annual Symposium that took place on October 22, 2015. Our distinguished panel of speakers discussed the legal consequences of police militarization. The speaker comments have been published in the order that our speakers presented in during the Symposium. We would like to thank our speakers for providing a respectful and thought-provoking dialogue. Next, we are excited to publish articles written by prominent practicing attorneys. The first article, authored by Assistant Dean Ronald Sutton, discusses issues surrounding the piracy of copyrighted digital media. The second article, authored by L. Joe Dunman, illustrates how federal appellate courts have applied the reasoning of the United States Supreme Court case of Bowers v. Hardwick. The third article, authored by four seasoned lawyers, Gregory Nowakowski, Michael Nowakowski, Theresamarie Mantese, and Jordan Segal, provides a valuable discussion of the legislative history and health-care policy of the Health Care Improvement Act. Finally, we are proud to present three student-written pieces. Two of these pieces were authored by Western Michigan Thomas M. Cooley students. The first examines regulations on fracking, and the second piece argues that current restrictions prohibiting concealed weapons on college campuses should be lifted. The final student piece discusses drone use in law enforcement. We would like to thank our faculty advisor, Mark Cooney for his commitment, dedication, and continuous support of our publication. Please enjoy this issue of the Western Michigan Thomas M. Cooley Law Review. – Karen A. Wentz

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OPENING REMARKS OCTOBER 22, 2015 GRAND RAPIDS, MI WMU COOLEY LAW SCHOOL POLICE MILITARIZATION SYMPOSIUM PROFESSOR TONYA KRAUSE PHELAN* Distinguished panelists, guests, students, colleagues, members of the bar, and members of the bench, welcome to Western Michigan University Thomas M. Cooley Law Review’s annual Symposium. Law reviews, as a general rule, spend time researching and writing scholarly topics. They also solicit scholarly articles from members of the community. However, once a year we turn outside of the legal community for our Symposium, and we discuss a topic of something that is timely, relevant, and important to not only the legal community, but the community at large. So this evening, we will be talking about the topic that the Law Review chose for this year; specifically, the legal consequences of police militarization— problems, benefits, and solutions. One need only pick up a newspaper, listen to the radio or television, surf the internet, or visit a social-media page to know that the idea of police shootings, police militarization, and the community response to these issues is a current topic, real time, as we speak. In law school, we teach students that a criminal-justice-system, at its basic core, is the process by which we enforce our substantive criminal-laws. Having said that, our system needs to address two competing interests: the need for effective law-enforcement, balanced against our individual rights, freedoms, and protection. On a daily basis, those two competing interests can actually exist in harmony. However, when those interests compete in a way that puts the system in a state of flux or unbalance, issues arise like the ones we are going *

Professor Krause-Phelan joined the WMU Cooley faculty in 2005. At Cooley, Professor Krause-Phelan teaches Criminal Law, Criminal Procedure, Defending Battered Women, Criminal Sentencing, and Ethics in Criminal Cases. Before joining Cooley, Professor Krause-Phelan worked as both a private criminal defense practitioner and as an Assistant Public Defender with the Kent County Office of the Defender in Grand Rapids. Professor Krause-Phelan frequently appears as a commentator on numerous radio, television, print, and internet media sources regarding criminal law and procedure issues.

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to talk about this evening. What does â&#x20AC;&#x153;police militarization meanâ&#x20AC;? really mean? What impact does it have on us as citizens? What impact does that phrase have on the way we process our substantive criminal laws? These are a few of the topics that will be discussed this evening.

REMARKS OCTOBER 22, 2015 GRAND RAPIDS, MI WMU COOLEY LAW SCHOOL POLICE MILITARIZATION SYMPOSIUM UNDERSHERIFF MICHELLE LAJOYE-YOUNG* I want to talk about the whole concept of the “militarization of the police force.” And I am going to start with what will likely be a controversial statement: I am not really someone who believes that there has been a militarization of the police force. I think it is a characteristic that has developed in the media over the last several years, and it surrounds around the use of some utility vehicles that look a little bit scary. I want to talk about those vehicles in my comments, and I want to talk about how that lends itself to the bigger picture of what law enforcement is supposed to do. I think an important starting point is to share with you the mission statement of the sheriff’s department and how it is similar, in its context, to every other police department mission statement that I am familiar with: “The mission of the Kent County Sheriff’s Office is to preserve and protect the safety and security of the residents of Kent County, and to provide for a safe and secure correctional facility.” So obviously, as a sheriff’s department, we have a couple of prongs to our mission. You’re not hearing, in that mission statement, that my mission is to *

Michelle LaJoye-Young has worked for the Kent County Sheriff’s Department since 1989 in various roles within Corrections, Patrol, Communications, Support Services, as Chief Deputy, and now as the Undersheriff of Kent County. Throughout her career Undersheriff Lajoye-Young has represented the Department in a number of initiatives to further the mission of public safety. Some of the more significant initiatives include the Criminal Justice Information Policy Board, Kent County Dispatch Authority, Computer Aided Dispatch and 911 Phone System Implementation, FBI Criminal Justice Information Center Task Force, and the Identification Services Subcommittee. LaJoye-Young has been appointed by Governor Rick Snyder to the State of Michigan’s Public Safety Communications Interoperability Board. Additionally, LaJoye-Young has severed in the Michigan Army National Guard and Army Reserves from 1985 through 1998 where she left as a captain. She obtained her Bachelors in Criminal Justice from Michigan State University and her Masters in Public Administration from Western Michigan University. She received her MCOLES certification from Grand Rapids Community College and graduated from Northwestern University School of Police Staff and Command. LaJoye-Young is the proud mother of two sons.

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enforce laws. You’re not hearing that my mission is to enforce rules. Our mission is to protect and serve and largely speaking that happens through 911 calls for service to the sheriff’s department. If there is a resident in the community that has an urgent need, they will dial 911, and we will respond. We respond and take care of that incident in any feasible way. Often, in some of these critical instances that we are responding to, you’re seeing law enforcement agencies use utility vehicles that had been previously owned and developed for the military. Often these military vehicles have armor so they cannot be pierced by gunfire. This is a phenomenal and functional vehicle that we use to protect and serve. I think one of the ways that I can illustrate this is to discuss an incident that the Kent County Sheriff’s Department experienced this past summer that was brought to a safe resolution through the use of one of these utility vehicles. We had a 911 call for service, from a woman who had escaped from her home after being brutally attacked by her estranged live-in boyfriend. Also in the home, at the time, was a one-year-old child, who she was unable to take with her when she escaped. When we, the Sheriff’s Department, were called to the scene, it was termed a “hostage situation.” This young child was left in the home with a man who was highly intoxicated and under the influence of several drugs. He was in possession of several weapons, including long guns which had long-range ability and posed a great deal of risk to the community at large—in particular to anyone who tried to gain access to the child. In this situation, we tried for several hours to make contact with the individual by phone, but he wouldn’t answer the phone. He wouldn’t come to the window. We were unable to coax him into responding to the law-enforcement agency. So eventually, we were able to use our armored vehicle to gain access to a point in the front of the house where he wouldn’t be able to fire shots at an officer. We were able to use this vehicle as cover and put a throw phone into the residence; the throw phone had a camera, so we could see where the suspect was in the house. We could see if the child was safe and where that child was at in proximity to the suspect. Through the use of the camera, we were able to determine that we could enter the home at a certain moment to gain access to the child without risking the child’s safety. We were able to put the suspect into custody and bring the situation to a good close for the suspect, child, and frankly for the community at large. Here is a way that this type of equipment would be used in departments all across the country. There are similar stories that you

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can find if you research them. This is how the equipment is being used. Itâ&#x20AC;&#x2122;s also being used to rescue flood victims and to access mudslide areas where normal vehicles cannot enter. Our mission statement is to protect and serve. While my officers are protecting and serving, any opportunity I have to provide them with equipment to maintain their safety also protects and serves the community. As a commanding officer of those who put their lives at risk daily, it is extremely difficult for me to conceive denying them every possible piece of equipment to meet their needs. It is difficult for me to understand why someone would not want us to use this equipment when it presents a safety tool for our community.

REMARKS OCTOBER 22, 2015 GRAND RAPIDS, MI WMU THOMAS M. COOLEY LAW SCHOOL POLICE MILITARIZATION SYMPOSIUM GERRY FABER* My name is Gerry Faber. I am an Assistant Prosecuting Attorney for Kent County, Michigan. I have been a prosecutor for about twelve years, serving a few years in Muskegon County and the remainder for Kent County here in Grand Rapids, Michigan. I also spent five years on active duty in the United States Marine Corps, so I have more than a passing familiarity with military organization, military tactics, equipment, and weaponry. With that as my experience, I am going to apply what I have seen over the last decade as a prosecutor in a relatively small city. Grand Rapids has a total population of about 200,000 and a police department of just under 300 uniformed officers. It is relatively small when compared to New York City. For perspective, New York City has a population of eight million people and a police force of about 35,000 uniformed officers. This is equivalent to the number of military personnel that are currently serving in Afghanistan. Chicago has about 3 million people and approximately 12,000 uniformed police officers. Keeping these differences in mind, I will share my experiences in the city of Grand Rapids, Kent County, Michigan. *

Gerry Faber is currently an Assistant Prosecuting Attorney for Kent County, Michigan. He has a total of twelve years of prosecution experience. Mr. Faber is currently assigned to the Criminal Division, where he prosecutes all manner of felony cases brought in the 17th Circuit Court. Mr. Faber is also the prosecution representative for the Kent County Veteran’s Treatment Court program, a special court set up to effectively deal with veterans of the armed services who, because of mental health issues related to their military service, have encountered problems within the criminal justice system. Additionally, Mr. Faber is a five-year active duty veteran of the United States Marine Corps. Mr. Faber is a graduate of Chaminade University in Honolulu, Hawaii, where he received his Bachelor of Science degree, graduating magna cum laude. Mr. Faber received a full academic scholarship to the Thomas M. Cooley Law School in Lansing, Michigan, where he received his Juris Doctorate, graduating cum laude. Mr. Faber is a member of Prosecuting Attorney’s Association and is licensed to practice law in the state of Michigan.

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Perhaps I am biased because I work closely with the police, but in all my years practicing, I have not seen an increase in militarization from the law enforcement officers in Kent County. Police officers and prosecutors work closely together. Police officers and police departments are an investigative body. After investigating a crime, they will present their investigation and their police reports to a prosecuting official. At that initial stage, a prosecutor’s role is similar to a defense attorney because we are the first line of legal defense. If we see any misconduct, a lack of probable cause, anything the police might have done that violates a defendant’s rights, or simply a lack of evidence, we do not charge the defendant. We deny up to 25% of arrest warrants that are brought to our office. For warrants that are authorized, it means that there is probable cause that a crime was committed and the person charged is the one who committed it. It is at that point charges are brought against the defendant. From there, the prosecutor becomes the public face of police work. Police officers are often the key witnesses when prosecutors are seeking a conviction in court. The lead detective in a case is often seated at the prosecution table during and throughout the trial. We work closely with the police, and if the jury, comprised of the “public,” is leery or suspicious of police activity, it affects my ability to obtain a conviction. During trials, I interact with the jury on a daily basis, so I am very aware of the changes in behavior and attitude toward the police. Over the past decade, instead of seeing an increase in police militarization, I’ve actually seen an increase in community involvement. When I first started, community police officers weren’t in existence or at least very uncommon. Now there is a tremendous push towards having dedicated officers working in the communities, going to neighborhood association meetings, and being actively involved. The use of non-lethal tactics, such as the implementation of the Taser, which is now a ubiquitous device, definitely suggests a trend toward the use of non-lethal force. Police departments are increasingly requiring college degrees from applicants, which is something that also wasn’t common twelve years ago. It is becoming the norm to require at least a two-year, if not a four-year, degree during the application process. Further, the amount of in-service yearly training that the officers have to go through in the use-of-force continuum is much more intensive now than when I started. Is Grand Rapids indicative of the entire nation? I don’t know. I can only tell you what I have seen. Ultimately, there is definitely a

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public perception of an increase in police militarization—this is undeniable. You cannot turn on the television without seeing this issue and these concerns, and I think there are some relevant questions we should consider: What is the origin of this concern? Is it the way that the officers appear, the way that they look, the equipment they wear, their clothing, the vehicle they use, or their actions and behaviors? I have already indicated that I do not see an increase in police militarization in the police’s actions and behaviors. So instead, let’s consider the way they look. The military and the police have a lot of similarities. For this reason, many police officers formerly served in the military. Similarities include the uniforms that they wear and the gear and weaponry they carry as well as the rank structure. The police ranks of sergeant, captain, and lieutenant are all based on a military model. The comradery and esprit de corps (a feeling of pride and loyalty) arises when an officer puts on their uniform in order to perform their job. They have to trust each other with their lives. So, there are many of these superficial similarities between the police and the military. Comparing mission statements of the police and military show the dissimilarity. The Marine Corps mission is to “locate, close with and destroy the enemy by fire and maneuver or repel the enemy’s assault by fire and close combat.” Obviously, this is slightly different than the Grand Rapids Police Department’s mission statement, which is “to strive to protect life, enforce and uphold the law, preserve order, and protect property.” The latter is what a civilian police department should focus on, and from my experience, they live up to that mission statement. Regarding a police officer’s appearance, let’s first consider their uniforms and how they have changed. For those of you old enough to remember the Andy Griffith show, Deputy Fife’s uniform looked more like a milk-man’s uniform than a police officer’s uniform. He had one revolver round in his pocket in case of an emergency. Those days are gone. The average police officer’s uniform today is still more of a dress uniform than a tactical uniform, but you will see officers that are on patrol wearing what is known as BDUs which stands for battle dress uniform. With regard to firearms, police officers now carry a semiautomatic pistol on their hip instead of the revolver that served law enforcement officers for eighty-plus years of the last century. The twelve-gauge shotgun with the wooden stock has given way to the patrol rifle. The AR-style rifle has become the subject of so much

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dread due to the fact that they have been popularized by recent acts of firearm violence. The AR-15 rifle is among the highest-selling rifles in the United States today. There are hundreds, if not thousands, of them sold every week across the United States. There are millions of them in private hands, so to think that a law enforcement officer should not have that exact implement to do his or her job is ludicrous. The perception that they look like soldiers instead of police officers is because the weapon looks like a military rifle—not like granddad’s shotgun. This is a superficial observation without a basis in logic. Next, let’s discuss the vehicles that are used by police officers, specifically armored vehicles. Full disclosure: I am extremely libertarian. I don’t want to live in a police state. However, there is a legitimate use for an armored vehicle in extreme situations. Should armored vehicles be patrolling our streets day in and day out? I’d be the first one to say absolutely not. The MRAP, which stands for Mine-Resistant Ambush Protected vehicle, has been the subject of a great deal of debate. It has a V-shaped hull that is designed for one use, to transport personnel from point A to point B safely in the event of an IED (improvised explosive device) attack, otherwise known as a road-side bomb. If a road-side bomb explodes, the V-shaped underside will direct that blast out, away from the occupants of the vehicle. The MRAP was designed for that very purpose. They weigh about twenty tons and cost approximately half-a-million dollars each. As their need overseas has diminished, the federal government had an abundance of these vehicles, so they gave them to law enforcement agencies basically free. If the military were giving away a standard armored car, like the Bearcat, which is what the Grand Rapids police department has, I think that departments and the public should readily accept them. However, the MRAPs are designed for one thing, and I cannot think of an instance where there has been a roadside bomb attack on a police vehicle driving down the street. So the main purpose of the vehicle would not be utilized in civilian policing. The initial acquisition of the vehicle is free, but the cost of maintenance on a $500,000 vehicle isn’t free. I don’t know what an MRAP tire costs, but it’s probably as much as a standard patrol car. There would be a hefty, continuous cost for maintenance. They weigh so much that I don’t know if normal streets, bridges, or highways can sustain their weight and height. To be honest, I would be leery of seeing that type of patrol vehicle with regularity on an American street. However, I do not see any problems with a

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department having a dedicated armored vehicle for hostage situations where there is danger to the officers and the people they are trying to protect. Finally, let’s discuss the increase of tactical, military-style search warrant executions. The procedure to obtain search warrants has remained unchanged in keeping with Fourth Amendment protections. An officer seeking a search warrant will present facts to a magistrate to determine whether there is probable cause. If the magistrate—who is neutral and detached—finds probable cause then a search warrant is issued, and the property can be lawfully searched by the police officer. None of this has changed. What has changed is the dramatic increase in the amount of tactical or “hard entries” over what are known as “soft entries” in which a couple of officers and a detective will “execute” the search warrant by walking up to the property and knocking on the door. The rationale for the increase in tactical hard entries is officer safety from the threat of weapons and assaultive behavior from the targeted suspect. Before concluding that the increase in the use of hard entries mean an increase in police militarization, I suggest that these entries need to be looked at using data, made available to the public, which shows how often tactical hard entries are utilized, how often is there resistance during these entries, and how often weapons are found. I think, as members of a free society, we need to take a look at these questions. Overall, I think that the concept of “police militarization” has been a perception from the public that is exaggerated and perpetuated by being played over and over again in the media. The perception is more about the way officers appear versus the way modern police officers act and behave pursuant to their polices. Thank you for your time and the opportunity to speak here tonight.

REMARKS OCTOBER 22, 2015 GRAND RAPIDS, MI WMU COOLEY LAW SCHOOL POLICE MILITARIZATION SYMPOSIUM BRIAN LENNON* I want to thank the WMU-Cooley Law Review for inviting me. Militarization of police is an important topic—a very timely topic. I have worked with law enforcement for a long time: two years as a federal prosecutor in Virginia and 13 years in the United States Attorney’s office in Grand Rapids. And as a former Marine, I have some experience with military law enforcement. We all have a bias and mine is that I am a Christian, so I see things through that filter, and try to act accordingly, to varying degrees of success—sometimes better than other times. As a Marine officer and federal prosecutor I tried, and as a criminal defense attorney I continue trying to do so now. I do think that all people are made in the image of God. I want to make that clear; that’s the position I work from. Therefore, all lives matter—citizens and police. And we have to protect the police just like we insist that the police protect citizens. So, with that lens or filter, here is my analysis. In the 52 years I have been alive, we have seen dramatic changes in law enforcement. I was born about a month after President Kennedy was assassinated. Back then, the Dallas police officers all carried revolvers. During the 1968 riots, my father was running a federal program in South Bend called Model Cities which was 1 of 16 sites around the country. My father was one of the few nonminority directors of that program. He had all kinds of death threats. At least once a week we stayed inside the house. We had police *

Brian P. Lennon is currently Partner and Chair of the Criminal Practice Group at Warner Norcross and Judd in Grand Rapids, Michigan. Prior to joining WNJ, Mr. Lennon was the Assistant United States Attorney for the Western District of Michigan and before that a Special AUSA in Virginia. During his career, Mr. Lennon has conducted hundreds of grand jury investigations and tried nearly 70 criminal cases to verdict. Additionally, Mr. Lennon spent four and a half years as a judge advocate for the U.S. Marine Corps, handling both civil and criminal matters. Mr. Lennon obtained his Bachelor of Arts from Harvard College where he majored in Government, and his Juris Doctor from the University of Notre Dame.

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officers and FBI agents on the top floor and surrounding our neighborhood because of these threats to my father. Fast forward to the 1980s to the war on drugs. I don’t think there’s any doubt that law enforcement was out gunned. A lot of changes were made because of the access to weapons that the criminals had. Law enforcement was behind the times, so changes needed to be made. In 1968, the Los Angeles Watts riots caused a proliferation in SWAT teams. It was expensive to have a fully outfitted SWAT unit. But more and more units and more and more police forces tended to go that way. Then in 1985, I spent a year in Belfast, Northern Ireland where I was teaching and coaching basketball. The streets were patrolled by British soldiers in armored vehicles. You couldn’t see the driver; you only saw one British soldier out the top of the armored vehicle with a weapon pointed at various things as they patrolled the streets. Throughout Belfast was their version of the National Guard; regular citizens were drilling and patrolling the streets on foot. Now this wasn’t in the wealthier areas; the majority of this militarization was in the poorer Catholic and Protestant areas. There was dramatic militarization in Belfast, and no one wants to live through that. I was in Belfast a couple years ago, and that’s all gone. That made quite an impression on me. So what is it like to live in a society where the military are patrolling the streets? You may be too young to remember the 1992 riots after the police officers were acquitted in the Rodney King case. I was in the Marines Corps at the time. While I was an East Coast Marine, I had lots of friends who were West Coast Marines. And it was during that time that the Marines from Camp Pendleton were called up to Los Angeles, for posse comitatus.1 But the military was not supposed to be involved in law enforcement. The command’s instructions to the Marines were, “no, no, no—this is not posse comitatus; you’re just here to support the police. We don’t want you arresting anyone or doing police work.” As we know, necessity is the mother of invention. I remember the Compton, California Police 1. Posse Comitatus Act Law & Legal Definition, USLegal, http://definitions.uslegal.com/p/posse-comitatus-act/ (last visited Aug. 15, 2016) (“The Posse Comitatus Act is an act that prohibits the federal government from using the armed forces as a posse comitatus for law enforcement, except in cases and circumstances expressly authorized by the Constitution or Act of Congress. The act was enacted in the year 1878, and it is cited in [18 U.S.C.A. § 1385 (Westlaw 2016)].”).

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Chief saying, “Hey, I got all these fugitive warrants; let’s send you Marines out to pick up all these guys.” Legal had to say, “no, no we don’t do that.” When military is policing, there are a lot of problems. One of the problems, as we saw in California at the time, was the difference in terminology. For example, when police say, “cover me,” that means your weapon is drawn and pointed down range. If there are shots, then you return fire. When Marines are told to “cover me,” they just start shooting because that’s what the Marines are trained to do. There were times when the Marines were supporting the police in Los Angeles and were shooting up townhouses because they were told to “cover” the advancing police officers. There were all kinds of problems with that, and clearly nobody wants to revisit that situation. September 11, 2001 (9/11), brought police militarization to the forefront again. We have to think about the fact that the availability of funds, after 9/11, to purchase the equipment has helped bring us to the point that we are discussing right now. After 9/11, federal resources, such as armored vehicles, were made available to a lot of law-enforcement agencies. Because of the excess military equipment and the emphasis on trying to protect the homeland from terrorist attacks, law enforcement, even small agencies, have been able to afford a lot of equipment that they otherwise wouldn’t be able to get. If you put yourself in the shoes of a local law-enforcement officer, even in a small rural community, and you consider what equipment you have, I think you’ll see why police departments take equipment that is offered to them. Police chiefs are supposed to protect their citizens, so if an armored vehicle and body armor are being offered, why not take the equipment, especially if they are offered at no cost or low cost? Would it be responsible to turn down the offer of that equipment when there could be another Columbine? A question asked of the panel was whether police militarization has increased the deaths of unarmed citizens at the hands of the state? With respect to victims Brown, Gray, Rice, Scott, and Bland, the answer, in my opinion, is no. There were errors made, but if you know the facts about these cases it wasn’t increased militarization that led to any of the deaths. In Ferguson, what we saw was the reaction of the police to the rioters, and the protestors themselves certainly brought this issue to the forefront. Another point to consider is this: inevitably questions about police conduct are going to lead to body cameras, which are a great

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tool. The problem I see both for the prosecution and the defense is the same problem we experienced when CSI shows became popular. Suddenly everybody started thinking that the police could pull DNA or a fingerprint off of any gun or item, and it would be as simple as bringing the item into the police van, and the evidence would pop up. As trial attorneys, we quickly learned to educate our juries that evidence collection doesn’t work that way—these shows are Hollywood, not real life. The concern is that, based on the tv shows and movies, juries will expect to always see this type of evidence. I am afraid that the jury’s expectations will be affected with the use of advanced military equipment that has become routine for police (the body cams, the helmet cams, and everything else). What happens when the cameras are not used, or malfunction, or were inadvertently turned off? Will a jury believe that the body cam really wasn’t working or was it intentionally turned off? The unintended consequences of adding technology is that you have to explain the absence of having the equipment or the footage. I’m afraid that it may be unduly shifting or increasing the burden in some cases. We’ll have to see how these issues develop in the future and over time.

REMARKS OCTOBER 22, 2015 GRAND RAPIDS, MI WMU COOLEY LAW SCHOOL POLICE MILITARIZATION SYMPOSIUM KARA DANSKY* First, I want to thank the WMU-Cooley Law Review for holding this event and inviting me. I am very happy to be here and to be a part of the discussion. The second thing I want to say is, "Black lives matter!" I think that has to be said. I thought that for my time with you, I would do two things. One is to describe an investigation and report on police militarization, which I did while working at the American Civil Liberties Union (ACLU). The other is to discuss one of the recommendations that came from President Obama’s task force regarding local oversight of police militarization. There are some really interesting questions to explore about how local oversight can happen and how communities can be involved. I come from a national perspective because when I was at the ACLU, the investigations we did and the reports that we wrote were nationwide. I do not know much about Grand Rapids, so I am not necessarily talking about how the system works here. A couple years ago, when I was at the ACLU, we got very interested in the topic of police militarization. I want to be clear about what I mean by that phrase. I don’t mean just the equipment. I am troubled by the equipment, and I include equipment in my definition of police militarization. But I also mean the use of certain tactics, including the increasing use of Special Weapons and Tactics (SWAT) raids. Paramilitary weapons and tactics are both part of this overall topic of police militarization. There is an important element *

Kara Dansky is the founder and Managing Director of One Thousand Arms, a change-making organization that works with white people to dismantle racism. Previously, she was a Special Advisor at the Mayor’s Office of Criminal Justice in New York, Senior Advisor at the Office for Civil Rights and Civil Liberties at the Department of Homeland Security, Senior Counsel at the ACLU, Executive Director at the Stanford Criminal Justice Center, and Staff Attorney at Society of Counsel Representing Accused Persons. Kara received her J.D. from the University of Pennsylvania Law School and her B.A. from the Johns Hopkins University (both cum laude).

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here that has to do with police culture, training, and mentality. So when I say, "police militarization," I don’t just mean the MineResistant Ambush Protected vehicles (MRAP); I do not just mean the AR-15s. I also mean tactics and culture, so I look at this issue pretty broadly. In March of 2013, the ACLU launched an investigation. We sent a ton of public record requests to hundreds of law enforcement agencies in 25 states (Michigan not being one of them), and we received thousands of records. We asked for incident reports of SWAT deployments and weapon inventories. We received nearly 4,000 records on the first part: incidents of SWAT deployments, but we received very few records of inventory. So I don’t have a lot to share about the inventory issue. We looked at the number of people impacted by race, ethnicity, and sex. We also looked at the number of children present and the number of mentally-ill civilians impacted by SWAT deployments, which was hard to track because we got very little information from police incident reports. This makes a lot of sense because police aren’t necessarily trained to diagnose, so it was not helpful for us to ask that question. Other things that we reviewed were officer deaths and injuries, whether there was a forced entry, and whether a distraction device was used. Distraction devices, like flashbang grenades, are designed to disorient people by making loud noises and releasing smoke when thrown into a home. We looked at whether these devices were used and the purpose of their deployment. In search-warrant cases, we looked at whether the warrant was a no-knock warrant, whether the deployment was in connection with a drug offense, whether the police officers believed that weapons would be present, whether weapons were found, whether the deployment resulted in property damage, and whether there were civilian deaths or injuries. We examined all of these documents, and we compiled and analyzed the information. Some of our findings were based on existing research, and some of our findings were based specifically on the analysis that we did. A general finding of the study was that the police have definitely become excessively militarized. Police militarization has resulted, in part, from three federal programs enacted in the 1980s and 1990s. These programs incentivized the police to become excessively militarized. One of these is the Department of Defense’s 1033 program, through which police departments have been able to obtain virtually any type of military equipment without having to demonstrate very much need. This is changing. The Department of

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Homeland Security (DHS) has a grant program through which local law-enforcement agencies receive billions of dollars and have a lot of discretion in how they spend it. The next program is the Justice Department’s Edward Byrne Justice Assistance Grant (Byrne JAG) program which was enacted in the 1980s, at the beginning of the war on drugs, as an anti-drug funding program. Although by statute the money from this program can go to drug treatment and community corrections, the majority of it goes to law enforcement. These three programs, in the ACLU’s view, have incentivized the police for the last several decades to become excessively militarized. Another general observation is that these programs operate with almost no public oversight. There are a limited number of government bodies that are monitoring this at the local, state, or federal level. This is also changing. A couple states have enacted laws designed to conduct oversight on the trend of police militarization, but for the most part, there has been almost no oversight. The specific findings that the ACLU made in connection with this analysis were that SWAT teams were often deployed unnecessarily, aggressively, and dangerously to execute search warrants in lowlevel drug investigations. Most people do not question the authority or the wisdom of local law enforcement using paramilitary weapons and tactics in real life-threatening situations such as hostage and disaster situations. My sister lived near Boulder Creek when it flooded. No one questioned all the helicopters they brought in. But in the ACLU’s investigation, we found that 79% of the SWAT raids were for the purpose of executing search warrants, not to go in because somebody was being threatened. They were essentially investigations into alleged crimes. Of these raids, 62% were for drugs, often a tiny amount of drugs, but the police still conducted paramilitary raids into peoples’ homes. The ACLU is unable to make national generalizations because the sample size was too small. Our study also found that the use of paramilitary weapons and tactics primarily impacted people of color. When paramilitary tactics were used in drug searches, the primary targets were people of color. But when paramilitary tactics were used in hostage or barricade scenarios, the primary targets were often white suspects. Overall, 42% of the people that were impacted by the SWAT deployments were Black and 12% were Latino. Over half of the people impacted by the deployments were Black or Latino, so there is a strong racial element. The public became concerned with police militarization

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following Ferguson, but the concern was mostly related to the use of MRAPs. While MRAPs are a part of police militarization, it is the perspective of the ACLU and our investigation that police militarization has been affecting black and brown communities for decades as part of the war on drugs. SWAT deployments often unnecessarily use violent tactics and equipment, including armored personnel carriers, which were shown to increase the risk of danger. While it is persuasive to think that the use of militarized weapons and tactics is good for public safety, our study showed that it actually tends to escalate the situation and increase the risk that people will get hurt. We made a recommendation in our report for local and county governments to create an agency that would ensure that their own law enforcement departments are not excessively militarized. This agency would approve or deny requests for weapons and vehicles under the 1033 program as well as requests for money under the DHS and Byrne JAG programs. This agency would also address civilian complaints, make appropriate recommendations for department wide reforms, and conduct annual reviews. President Obamaâ&#x20AC;&#x2122;s task force recommended that local agencies review requests for equipment under the 1033 program. While that is a tiny fraction of what the ACLU asked for, nonetheless, it is a really good thing. If a local government is going to create such an agency, it brings up all sorts of questions about how local communities can express concern with the receipt of military equipment through the 1033 program. It also raises an interesting question, as to what kinds of guidelines and standards local governments should apply when evaluating requests. Rules could be put in place. At a minimum, local governments could require requesting departments to explain their need for an equipment request. The department should have to specifically state why it needs a particular kind of equipment; a generic claim that the equipment is necessary to carry out a departmentâ&#x20AC;&#x2122;s mission should not be enough. They should be required to demonstrate a compelling need for the particular equipment in the community where they plan to use it. They should also be required to demonstrate a specific law-enforcement concern that cannot be addressed without this equipment. If the agency needs the equipment, then it should be required to explain why it cannot purchase it on the private market. Law enforcement agencies can buy almost all of the equipment they get through the 1033 program on the private market. While there is a budgetary concern, let me ask this: why should local

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law-enforcement agencies be able to circumvent community concerns and solicit free equipment from the Defense Department? If a community wants its law enforcement agencies to have an MRAP or a cache of AR-15s, maybe that is fine. Maybe that is completely democratic. But why not have that discussion? Why not have the community demand that the local government budget for it? That is a reasonable set of questions to ask. Requesting departments should be required to make available to local governing bodies, and to the public, an inventory of all equipment obtained through the 1033 program, as well as all available information concerning funding received from the federal government, and how the funding was spent. The foregoing is my proposal for what the framework might be for local governing bodies to evaluate requests by law enforcement to obtain equipment and funding under the federal programs that have incentivized police militarization.

REMARKS OCTOBER 22, 2015 GRAND RAPIDS, MI WMU COOLEY LAW SCHOOL POLICE MILITARIZATION SYMPOSIUM JOSEPH JONES* Let me begin by thanking the WMU-Cooley Law Review and the organizers of this Symposium. I will use my time this evening to share some of my experiences in the work of strengthening the relationship between law enforcement and residents of the urban court, in particular African Americans. As the head of a local 72-year-old civil-rights organization, I am acutely aware of the historic injustices that have occurred in the lives of the disinherited: the men, women, and children whose ancestors were unwilling passengers on countless vessels that traveled from Africa to the West. I subscribe to the theory of historian John Henry Clarke, who said: History is not everything, but it is a starting point. History is a clock that people use to tell the political *

As leader of the Grand Rapids Urban League, Joe Jones leads the development and implementation of an agenda that promotes economic empowerment as a means of elevating the standard of living in the underserved urban communities of Grand Rapids. The League is a 73-year old civil rights organization whose mission is to provide the means to empower African Americans and other marginalized populations to achieve economic self-reliance, parity and civil rights. Their vision is to be the leader, and preeminent agency in West Michigan effectively utilizing diverse and abundant resources to redress racial injustice and promote racial equity. Jones is committed to the community, and currently serves on a number of boards. He was most recently appointed to the Grand Rapids City Commission to represent the citizens of the Second Ward. His professional experience includes over 10 years of service in his native Detroit in the non-profit sector as a community organizer, program coordinator, and project manager. He also was in business for 14 years in the areas of strategic communications and cultural competence development. Jones holds a bachelor’s degree in communication arts from Oakland University and a Master’s in Ministry Leadership from Grand Rapids Theological Seminary.

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and cultural time of day. It is a compass they use to find themselves on the map of human geography. It tells them where they are, but more importantly what they must be. When discussing the relationship between police and communities of color, we must do so while looking through a historic lens. Often when I am working in communities to bring about solutions to the myriad of disparities and issues that weigh us down, I find myself asking the question: How exactly did we get here? How did we get to a place of such inequity in America? As Clarke explained, history is a starting point. History has the ability to give vision to blind faith. Perhaps I am biased as one who depends heavily on history when making decisions that have to do with my future. And so when I think about the future of the Black community and our relationship with law enforcement, I do so with great reverence and sobriety. From where I sit, or where other leaders within the community sit, it is easy to become intoxicated by the allure of drinking from the cup of compliment, the chalice of accolade, or the goblet of praise. The Grand Rapids Urban League has decided to follow in the footsteps of the heroes and sheroes of yesterday and embark upon a journey of doing all that we can to promote equity and fairness in the space of police and community relations by taking a good hard look at what was. It is my intent to answer some of the questions that have been imposed by the organizers of this symposium. First, what can the law do to eradicate the deaths of unarmed civilians being shot by police or dying in police custody while the law also alleviates the pressure felt by law enforcement that they are under attack? What are the implications of new policing technologies like body cams, bulletproof vests, tanks, and drones? The Grand Rapids Urban League is in favor of local law enforcement using body cams in the hope that they will be seen as mutually beneficial. We see the use of body cams not so much as the total solution to decreasing the tension that exists between the community and law enforcement, but as a helpful and necessary tool that can be used as a means of accountability. Over the last eight-plus months, on behalf of the Grand Rapids Urban League, I have personally facilitated cultural-competency training sessions for two local police departments with plans of providing the training for all the local police departments in the notso-distant future. These training sessions have served as a great

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learning opportunity for me and, according to feedback from the officers, a helpful antidote to them as well. Prior to taking the helm at the Urban League, I was in business for 14 years, which included developing, training, and facilitating on the subject area of cultural competency. I think it’s fair to say that no matter what, talking about things like racism, discrimination, and implicit/unconscious bias with a predominantly White audience isn’t easy. What I’ve come to learn during my training with local law enforcement is that they have become accustomed to going through cultural-competency training that consists of them being told by a trainer or trainers just how bad and racist they are, and so I try really hard to do the opposite. I establish that I am well aware that they have one of the most difficult jobs in the universe. I also establish that the solution to achieving better outcomes, as it pertains to police and community relations, is going to require an all-hands-on-deck approach consisting of police, community, systems, and structures. I try to establish trust early by telling my story about growing up in Detroit and having extremely beneficial interactions with law enforcement by way of little league baseball. My coach at that time, some 30-plus years ago, was Sargent George Taylor of the Detroit Police Department. I can remember like it was yesterday: walking or riding my bike to Sargent Taylor’s house to catch a ride to the practice field. I remember his wife, Mrs. Taylor, and his son, George, as well as his gregarious-outgoing personality. Through this experience, I was able to see Coach Taylor as a human being, not just an enforcer of the law. More importantly, he saw me and my teammates as young, gifted, and Black men, who had unlimited potential. He was a role model to all of us as to what a husband, father, and leader should be. We all held Coach Taylor in very high regard. Did you notice my mode of transportation to Coach Taylor’s house? I mentioned that it was either by foot or bicycle, which tells you that he lived in my neighborhood. When I think of viable solutions to the issues at hand, I can’t help but believe that lawenforcement officers living in the very cities they serve would help immensely. There’s something to be said about better understanding the other if you are living amongst them. Gone are the days when this was a requirement for local police and firefighters. I suggest that efforts be made to change the law to what it used to be, requiring all police and firefighters to live in the city/township that employs them. Our current residency laws allow us to operate with legal

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segregation. It was sociologist, author, and scholar, John Powell who said about segregation: . . . [It] is a formal way of saying, “How do I deny my connection with you in the physical space?” Think about the notion of whiteness. So, whiteness, in the United States, as it came, as it took form, believed that one drop of black blood, whatever that is, would destroy whiteness. Turns out, whatever that means, most white Americans actually do have black blood. The reason that most African Americans look like me . . . is because white blood and black blood’s been mixing up for a long time. And so I think that as we deny the other, we deny ourselves. Because there is no other. We are connected. How do we actually acknowledge that? how do we actually celebrate that? ... I try to reflect on this very disconnect during my training with law enforcement. I try to establish trust so that a safe space can be created for helpful dialogue about policing the community, in particular people of color as the “other.” I try to do this by providing the historic timeline—a history of sorts—that explains how we as a society, as a country, created this social construct of criminalizing blackness. I do this because there’s no other group of people in the world that has been cast as the "other" as much as African Americans. I provide this timeline, this history lesson, right before going into the part of the training that unpacks implicit bias. History can clearly articulate how we can get to a place where we practice implicit or unconscious bias. This is the narrative I adopt in an effort to lay a foundation of how we began to see African Americans as the “other,” and most notably the criminal element. I am aided in this part of my training by Doctor Khalil Gibran Muhammad and his book The Condemnation of Blackness: Race, Crime, and the Making of the Modern Urban America. In his book he provides the reader with the following context: There was an idea of black criminality in the making of modern urban America. The link between race and crime is as enduring and influential in the twenty-first century as it has been in the past. Violent crime rates in the nation’s biggest cities are generally understood as a reflection of the presence and behavior of the

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black men, women, and children who live there. Nearly half of the more than two million Americans behind bars are African Americans, and an unprecedented number of black men will likely go to prison during the course of their lives. These grim statistics are well known, and frequently cited by black and white Americans. Indeed, for many they define black humanity. Although the statistical language of black criminality often means different things to different people, it is the glue that binds race to crime today as in the past. In 1884, Nathaniel Southgate Shaler, a Harvard scientist and prolific writer on late nineteenth century race relations, wrote his first article on what he and many others called “The Negro Problem.” In this article he warned about the problem of the presence of Black people in America. “There can be no sort of doubt that, judged by the life of all experience, these people are a danger to America, greater and more insufferable than any of those that menace the other great civilized states of the world.” Think about it this way: it’s 1865, and in a moment equivalent to a historic blink of an eye, four million people were transformed from property to human beings to would-be citizens of the nation. When this group of people was defined as a problem from the onset, it’s hard to reverse the narrative. How about being cast as beasts, primates, sub-human, or inferior? What occurred up until the end of slavery was the stigmatization of crime as Black and the making of crime among Whites as an individual failure. The process of linking crimes to Blacks as a racial group and not Whites reinforced and reproduced racial inequality. There were key moments in messages which began in one generation of slavery when new sources of statistical data were joined to ongoing debates about the future place of African Americans in modern urban America. With the publication of the 1890 census, prison statistics for the first time became the basis of a national discussion about Blacks as a distinct and dangerous criminal population. In 1890, the statistical data and racial identities forged out of raw census data showed that African Americans, as 12% of the population, made up 30% of the nation’s prison population. And although specially designed race-conscious laws, discrimination, and new forms of everyday racial surveillance had been institutionalized by the 1890s as a way to support Black freedom, White social scientists presented the new crime data as objective, color blind, and

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incontrovertible. From this moment forward, notions about Blacks as criminals materialized in national debates about the fundamental racial and cultural differences between African Americans, nativeborn Whites, and European immigrants. For White Americans of every ideological stripe (from racists to northern progressives), African American criminality became one of the most widely accepted basis for justifying prejudicial thinking, discriminatory treatment, and/or the acceptance of racial violence as an instrument of public safety. I want to suggest that, as a nation, and to make it even more meaningful, a city, we must commit ourselves to the rigorous process of unlearning. Any viable solution that we try to implement to close the gap between police and community must be done with a commitment to the process of unlearning. How can we as a community get to a better place of not seeing all members of law enforcement as bad, corrupt, or out to get us? How can law enforcement do a better job of not falling prey to stereotypes, mental models, some of their cultural upbringing, and media-influenced characterizations of people of color? Right now, in society there is a mindset that it is us versus them, police versus the community, and the community versus the police; this is real and pervasive. I remind the officers whom I am training, as well as members of the community, that if we don’t operate with a sense of urgency in this work of trying to coexist, then it is not going to end well. Here are some reoccurring statements that I hear from both law enforcement and the community: “If people would just do what we tell them to do, then there wouldn’t be any problems.” “Why do they feel the need to over-police my neighborhood?” “If they took personal responsibility, they wouldn’t have the problems they have.” “All police are racist.” As I just mentioned, if we don’t act with a sense of urgency, then this is not going to end well. Wisdom declares, Saint Paul to be exact, that everything is lawful but not everything is beneficial. Everything is lawful, but not everything builds others up. And I ask the questions: how can we work towards building each other up; how can we create a beloved and just community; how can we get to a place in society where just because something is lawful, it doesn’t mean that we have to carry it out? We know that if there is a crime being committed in our respective neighborhoods, our first inclination is to call 911. This should not change. The number one rule of law enforcement is: to protect and serve. Some might say it should be the other way around:

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to serve and protect. We know statistically that the great majority of interactions the police have with people is drama-free. We also know that the police sometimes see people when they’re at their very worst. I say this to support my belief that another solution that could net significant gains is increasing training for officers in how to effectively de-escalate critical situations. In terms of training, allow me to go one step further and state that it is the Grand Rapids Urban League’s intent to meet with our two local police academies (Grand Valley State University and Grand Rapids Community College) to discuss the possibility of providing cultural-competency training to the students while they are in the academy long before they get hired as full-time law enforcement. It would be a great benefit to residents in the urban court, in particular our younger generation, if we emphasize the importance of how to communicate with law enforcement. It is my hope that you do not interpret my suggestions for law enforcement and members of the community as the proverbial pointing of the finger. We can no longer expect a good outcome if we spend time pointing fingers at one another placing blame. Dialogue, empathy, training, community engagement, and effective policy making can get us to a much better place than where we are right now. If one has a firm understanding of how we got to this place in time and in society, then it doesn’t necessarily translate to things getting easier, but it does provide context for how the power of potential can get us to a much better place. Allow me to close with the words and vision of a man who embodies the power of possibility. Reverend Doctor Martin Luther King said: …[T]he end is reconciliation; the end is redemption; the end is the creation of the Beloved Community. It is this type of spirit and this type of love that can transform opponents into friends. It is this type of understanding goodwill that will transform the deep gloom of the old age into the exuberant gladness of the new age. It is this love which will bring about miracles in the hearts of men. Thank you.

REMARKS OCTOBER 22, 2015 GRAND RAPIDS, MI WMU COOLEY LAW SCHOOL POLICE MILITARIZATION SYMPOSIUM DAREL ROSS II* I am Darel Ross. I run LINC Community Revitalization Agency, and I guess if we’re going to tell everyone about our biases, my bias is that of a Black man and one that has been on both sides of the criminal justice system. I wasn’t exactly the perfect kid. First, let’s go back and think about the correlation between the overall criminal justice system and the militarization of the police force. What I mean by that, is that we know that the National Defense Authorization Act that sets the expenditures in the defense budget kind of started this snowball effect. But even in 1990, the Defense Department allowed the transfer of military gear and weapons to local police departments if it was deemed suitable for use in counter-drug activities. So now you’ve got an overlap of the criminal justice system, with race, and the “War on Drugs,” and inevitably this hit some communities harder than others. So then, 9/11 happens and the “War on Terror.” It’s a perfect storm, right? So *

Darel Ross II has been passionate about serving the Grand Rapids community his entire life. In 2008, Darel Ross was named Co-Executive Director of LINC UP. Since that time, Ross has led LINC UP in revitalizing neighborhoods through authentic engagement, stimulating economic development, expanding housing opportunities, creating affordable housing, and developing leadership and capacity to residents and grass-roots organizations. Prior to being named Coexecutive director at LINC Up, Ross served as Treasure on the then Lighthouse Communities Board of Directors for six years. Ross has been recognized as Newsmaker of the Year, by the Grand Rapids Business Journal. Ross has helped secure over $67 million in funding for community improvement efforts resulting in over 300 families increasing their assets, training over 600 residents, improving over 750 homes, and creating over 120 full-time jobs during his tenure at LINC UP. In 2015, Ross founded and launched, Operation Body Cam GRMI a community initiative that led to the City of Grand Rapids adopting a 12-point plan for increased transparency and accountability amongst the Grand Rapids Police Department.

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whether it was intentional or unintentional, let’s just say it results in the unintended consequences of a very sound de-escalation of policy overseas. So we are now living in a time where the “War on Terror” and the “War on Drugs” have been exasperated into our local communities. And whenever there’s a “War on Something” it hurts the Black, Brown, minority, and poor communities harder than the intentionality of the war. In the Obama era, police departments have received tens of thousands of machine guns, nearly 200,000 ammunition magazines, thousands of pairs of camouflage, and night vision equipment. Not to mention silencers, armored vehicles, aircraft, and all that other cool stuff. Think for a second—what if local police departments had this amount of ammunition back in the civil rights era? So all the pictures you see of dogs, and all the pictures you see of water hoses, there was a time you had to call the National Guard in to get the level of military equipment. Now you can call your smallest local police department, and they can respond with military equipment. And I want to be very clear that this is not an argument of whether police departments should be militarized. To me, this is a conversation of whether they should be “overly” militarized. Nobody is arguing that police should not be equipped to handle any situation that arises, but there should be a community conversation and community engagement. Residents have a right to define what is “overly” militarized, and I think that is the gist of this conversation. So, let’s put another thing in context—taxi drivers have one of the most dangerous jobs, right? Not really police officers. Imagine if taxi drivers took the position of law, because they have a right to, right? They’re killed at a higher rate. It’s the most dangerous job. So, imagine your Uber driver pulling up and there’s a guy with a hoodie and a gun just pointed at you, just in case you did something. Because statistically speaking, you might. And it’s a rough job. I know that’s kind of overkill, but that argument is also becoming the new argument among police. It’s dangerous, and we need to arm ourselves. We need to be prepared. Well, imagine if that same train of thought was carried to other industries. How that would play out, unchecked? And the other thing is common sense. Who doesn’t want Tim the Toolman type of things, right? You have a gun. You want a bigger one. You have a car. Make it armored. You have a truck. Why not put four wheels on it? Or how about eight? If these things are free and they’re flowing like that, who would say no? So, quite honestly, I agree with the undersheriff, why wouldn’t you give your police

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department the best of everything you have? It’s like my kids at Christmas. I’m going to get them what they want. Right? And if it’s free? Go ahead and double down on the PS4. Let’s also put this in a local context, because I think a lot of times when we talk about militarization it’s always those other cities. So what I’ll try to do is weave in some local things too. And to Kara’s point, it’s really tactics and not just equipment. Police should be servants and not warriors, and we should be living in a society where prevention is held to a higher standard than arrest. In my studies, over-militarization really has two parts. The first part is that it involves the employment of weapons, equipment, and tactics that are disproportionate to the tangible threat. This is very important. The second part is that the overall force posture is overly aggressive, to the point of being counter-productive. Once again, the three things to look at are (1) tactics, not just equipment; (2) servants versus warriors; and (3) prevention over arrests. So let’s look at tactics, and not just equipment. We all know of the Mike Brown case. The tactic was that the brother was crossing the street. Since when, or why, because it is not a when anymore, are police trained that somebody who is crossing the street, jaywalking, may be threatening enough to require an officer to pull their gun? Why are police trained that if somebody does not listen to you, that they can use lethal force? The tactics with which we are training police—and if you ever go to a use-of-force training, you are trained to assume when you’re pulling over a car that anything can happen— it makes sense, right? Except, police should be servants and not warriors. Nine times out of ten, nothing is going to happen. But the response to Mike Brown was full battledress, armored vehicles, tear gas, and weapons drawn—militarization at its finest. Here you have the tactic and you have the equipment. When those come together, you have the perfect storm. Recently, and let's overlay race on this, what was the response to the biker brawl? You guys all saw the biker brawl in Waco, Texas? Just sat and waited for it to die out. Not one criminal charge came out, but nine people dead. So let's do this locally. A couple of weeks ago, there was a party on Gideon Street. How many of you guys have ever been to a party that the police were called to? You don't have to admit it. The police get out, guns drawn? No, I'm sorry. First, they came up and said turn the music down. In this case, the lady said no. The cop then called backup to come out with guns drawn. Once again, remember part two of what I said—it's to the point that when

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your posture becomes too overly aggressive it becomes counterproductive. So now, to break up a party, it takes multiple police agencies, it takes tens of cops, it takes multiple arrests, and ultimately leads to somebody getting tasered. This is a house party! Which is something we have all been a part of at some time in our lives. And guess what? It results in criminal charges because, once again, it's kind of unfair to talk about the militarization of the police without talking about the overall criminal justice system and its inequities. But we're here today for the police part. And we've been hearing about these militarized police teams or SWAT. Most of the time, they are executing search warrants, meaning they're looking for something. Usually, it's drugs. To my knowledge, a bag of cocaine, weed, or anything has never shot back. So these are raids where people may not even be in the house, but we are executing search warrants in full tactical gear, armored vehicles and so forth. Once again, it's disproportionate in how these raids occur. I've seen it with my own eyes because, once again, I've been on both sides. For instance, if you live on the southeast side of town and you're raided you're going to get a full tactical team kicking in your door. I happen to be blessed enough to live on a golf course. My neighbor was raided. It was a big surprise to me. Who knew that could happen in the suburbs? But they came, and I BS you not, in khaki shorts and polo tops. That was a police raid. So how we are using the police force and this equipment is highly racialized and spatialized. And you can't ignore that piece. It was Officer Chief Blackwell, of the Cincinnati police, who really came up with the saying that officers need to be guardians in their community, not warriors. Because remember, part two is that the overall force, that posture of over-aggressiveness, leads to being counter-productive. Once again, when you pull somebody over for a simple plate violation, do you really need to have guns drawn? Do you really need to have two officers come out? Maybe you do. But that's a community conversation. Right? Because I, as a resident, would say, you know what, at the point at which you have to pull guns and at the point you have to risk an innocent life, or risk your own, let the damn person drive with an expired plate, because that is not a lethal crime. But most of the crimes and most of these responses are not for egregious actionsâ&#x20AC;&#x201D;they're for everyday traffic stops; they're for jaywalking; they're for not obeying; they're for running away. We're not talking about the guy who's in full armor from shooting up a bank coming down the street. We're talking about

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young men, who are in sagging jeans, who are getting choked to death for selling single cigarettes. The guardian is defined as a person who guards, protects, and preserves. The warrior is defined a person engaged or experienced in warfare, a soldier. A person who shows, or has shown, great vigor, courage, or aggressiveness. Which one do you want police in your community to be? Once again, there could be a variety of thoughts on this, but the community has a right to speak and to dictate how the community is policed. And for a lot of like-minded people, they would much rather have a guardian than a warrior. And bless their hearts, they served in the military and they kept our country safe, but the military is not the police department. If that's the cultural paradigm shift we need to make, then I think it's time to start having that conversation. And quite honestly, with implicit bias and everything else going onâ&#x20AC;&#x201D;and this is Darel Ross, not LINCâ&#x20AC;&#x201D;if you are in fear for your life every time you pull somebody over, if you are in fear for your life every time you put that badge on, if every day you worry about not going home at the end of your shift, don't be a cop. People who don't like blood are not surgeons. And then it's about prevention over arrests. We have a mentality where it's about controlling the enemy. It's about arresting the enemy. But really, the community is our ally. Nine times out of ten, police interaction is positive. The work I do at LINC with body cams, increasing transparency, and police relationshipsâ&#x20AC;&#x201D;it's to bridge the gap between police departments and the community. That trust is rapidly broken whenever the demeanor of police, by training, sends the other message. It's hard to trust somebody who is embedded within a system that has historically had different impacts for different communities. You have to remember, marginalized communities, communities of historical power, powerless communities, the one power they've always had is to mistrust, and to say no. So you're already starting off with a very fragile relationship. Militarization through tactics, be it the aggressive behavior, not only is counter-productive, but it does not lead to a safer community. And the prevention over arrests, I've had this conversation with many police departments. Technology is awesome, so you should tell people about it. There should be a healthy amount of transparency, a healthy process to get technology, because ultimately, technology should lead to the reduction in crime. However, we live in a time where technology and the criminal justice system are arrest tools.

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For instance, locally, once again, we have this shot spotter technology. Put it on top of a building and it can tell you within ten inches where the gunfire came from. They can't get it implemented because of the level of mistrust in the community. Well, think of it like this, the police are coming from a standpoint where they don't want the residents to know where the shot spotter cameras are located. The community is saying, why not tell everybody where the cameras are so then they are less likely to shoot anybody in the first place? But there's this mentality that equipment and technology should be used as arrest tools. We have license plate readers that can go down the street and read 300 license plates instantly. We need to have a conversation about what's more healthy. Like letting everybody know, hey, I'm out here with this camera that can read your license plate. Think of how many people would not drive drunk when they get in their car. Think of how many people would think twice before driving on a suspended license. Think of how good technology can actually be in the reduction of crime. Unfortunately, we are, once again, always coming across as though these pieces of equipment are arrest tools. As long as technology and this equipment are used as arrest tools and not peace tools, and as long as there is not a dialogue, and the community does not have a channel to speak into it, we are exacerbating the lack of trust between the police department and residents, not decreasing it. As long as the goal is increased arrest and not prevention, nothing is going to change. What does that look like? It looks like an engaged community. It looks like very, very simple things. How about we stop funding jails every year to the same level? Because if you have all this technology, you have all this equipment, in theory, crime should be going down. When is the last time you've heard of a police department advocating to reduce jail funding? That's where it starts. Because this is not a police issue, this is an overall criminal justice issue.

FLORIDAâ&#x20AC;&#x2122;S TRUE ORIGINS OF DIGITAL GOODS ACT: A LOOK AT PIRACY, PREEMPTION, PRIVACY, AND PERSONAL JURSIDICTION-OH MY! RONALD SUTTON* RESEARCH ASSISTANT: SARAH HARRIS** ABSTRACT As it becomes easier to distribute and share music and other digital content on the internet, copyright holders have had to come up with creative ways to protect their work from copyright infringement and digital piracy. Floridaâ&#x20AC;&#x2122;s True Origins of Digital Goods Act (TODGA) is the most recent state law to require anyone that distributes copyrighted material on a website to display their name and contact information on that website. However, TODGA does not prohibit a person from posting copyrighted material without permission from the copyright owner, it only requires that the distributor list their *

Associate Professor and Assistant Dean, Ronald Sutton, began teaching at WMU Cooley Law School as an adjunct professor in 1990. He became a full-time professor at WMU Cooley in 2011. In his legal career, Professor Sutton served as the Deputy Circuit/Probate Court Administrator-Attorney Referee for the 56th Judicial Circuit Court in Eaton County, Michigan from 2000-2011. With the court, he assisted in the administration of both the judicial and quasi-judicial functions of circuit and probate court, with an emphasis on developing community-based programs for the rehabilitation of delinquent youth. He won a Certificate of Recognition in 2006 from the Eaton County Abuse and Neglect Council. Previously, he was president of Sutton Sports Management Company from 19982010, where he was involved with worldwide representation of professional basketball players, coaches and broadcasters. Before that, he was an attorneyshareholder with Fraser, Trebilcock, Davis & Dunlap, PC, from 1979-1998. His areas of practice included commercial litigation, insurance law, family law, and sports law. Professor Sutton is a member of the State Bar of Michigan and is admitted to practice before the U.S. District Court, Western District of Michigan. Ronald Sutton wishes to thank Professor MacDonald, Professor Beery, and Sarah Harris for their support and contribution in writing this Article. ** Sarah Harris graduated from WMU Cooley in January 2016, Magnum Cum Laude. During her time at Cooley, Sarah served as an Assistant Editor and as a Managing Assistant Editor for the WMU Cooley Law Review in Tampa Bay. Prior to attending WMU Cooley, Sarah attended Florida Atlantic University, Harriet L. Wilkes Honors College, where she received her B.A in Liberal Arts. She is a member of the Florida Bar and currently works as an Associate at The Devolder Law Firm, PLLC, in Tampa, Florida.

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contact information. In fact, TODGA is housed in Florida’s Consumer Protection Act, and its stated purpose of the law is to help prevent the spread of contaminated files, viruses, and malware, yet only copyright holders are able to enforce TODGA, not those people affected by a contaminated file. Critics of TODGA and other similar state laws criticize the law arguing that the state law is unconstitutional, because it is preempted by federal copyright laws; TODGA infringes on a person’s First Amendment Freedom of Speech; and, the law is invalid because it violates the Commerce Clause of the United States’ Constitution. Furthermore, even if the law is constitutional, Florida courts may not even be able to enforce the law because they may lack personal jurisdiction. TODGA may have some benefits because other federal laws will now be more easily enforced, but the law’s constitutionality is questionable. Unfortunately, constitutionality is not an issue that can be addressed until a copyright holder attempts to enforce TODGA and someone’s rights have already been infringed upon. TABLE OF CONTENTS

I.INTRODUCTION ........................................................................... 39 1. PIRACY ON THE WEB ...................................................... 39 2. FIRST OPTION: SUE THE PIRATES................................ 40 3. SECOND OPTION: EDUCATION, COOPERATION, AND FEDERAL LEGISLATION ............................................. 41 4. STATE LAWS ...................................................................... 42 5. Florida’s True Origins of Digital Goods Act ..................... 44 II.FEDERAL PREEMPTION .................................................................... 46 1. Is TODGA Expressly Preempted by the Copyright Act?..... 47 III.TODGA DOES NOT VIOLATE THE WEBSITE OWNER’S RIGHT TO REMAIN ANONYMOUS ........................... 52 1. FIRST AMENDMENT FREEDOM OF SPEECH ............... 52 2. FLORIDA CONSTITUTIONAL RIGHT OF PRIVACY ...... 54 IV.DOES TODGA VIOLATE THE COMMERCE CLAUSE?...................... 55 V.DO FLORIDA COURTS HAVE PERSONAL JURISDICTION TO ENFORCE TODGA AGAINST NON-RESIDENT WEBSITE OWNERS WHO ELECTRONICALLY DISSEMINATE MATERIALS TO FLORIDA CONSUMERS? .............................................................................. 60 VI.EFFECT OF TODGA ON DIGITAL PIRACY IN FLORIDA ..... 65

2016] FLORIDA'S TRUE ORIGINS OF DIGITAL GOODS I.

INTRODUCTION

“I came, I saw, I copied, and I left” ― Kalyan C. Kankanala, Pirates of Bollywood 1.

PIRACY ON THE WEB

Florida has a rich history of maritime piracy dating back to Ponce de Leon’s discovery of Florida.1 The Florida shorelines hosted many infamous pirates such as José Gaspar,2 Edward Teach (Blackbeard), William Kidd, and Anne Bonny, to name just a few.3 These pirates plundered Spanish galleons as well as other European merchant ships.4 Although maritime piracy in the Florida region died out in the mid-1700s, the romance and swashbuckling nature of a pirate’s life spawned innumerable novels, movies, and societal adulation.5 Since the turn of this century, another type of pirate has emerged, not only in Florida but worldwide. These pirates are engaged in illegal peer-to-peer (P2P) sharing or piracy of copyrighted digital media, which has been and continues to be a source of major concern to those in the movie and music industries.6 The cost of this piracy has been the subject of much debate, but some studies estimate that digital piracy annually costs the United States music industry over $6 billion and the movie industry over $20 billion.7 In Florida, a governmental report conservatively estimated that digital piracy in the motion picture and music industry costs Florida industries over $211 million annually, with an economic impact to Floridians of $334 million in output at the cost of some 1,524 jobs.8 Cary Sherman, the chairman and CEO of the Recording Industry 1. The History of Florida’s Pirates, DESTIN PIRATE SHIP, https:// destinpirateship.com/history-florida-pirates (last visited July 16, 2016). 2. Carrie Caignet, Demystifying the Lives of Panther Key John Gomez: From Pirate to Pilot, FLORIDA MARITIME (2006), https://floridamaritime.files. wordpress.com/2013/11/gomez-research-paper-20121.pdf. 3. The History of Florida’s Pirates, supra note 1. 4. See id. 5. Id. 6. Amy Adkins, How Does Illegally Downloading Music Impact the Music Industry?, CHRON, http://smallbusiness.chron.com/illegally-downloading-musicimpact-music-industry-27748.html (last visited July 2, 2016). 7. See id. 8. HAAS CTR. FOR BUS. RESEARCH & ECON. DEV., ANALYSIS OF THE FLORIDA FILM AND ENTERTAINMENT INDUSTRY, at 20–21 (2009), http:// www.filminflorida.com/docs/pdf/Analysis%20of%20the%20Florida%20Film%20a nd%20Entertainment%20Industry%20Executive%20Summary.pdf.

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Association of America (RIAA), stated that the Latin music industry—primarily based in Florida—has witnessed music revenues drop from $627 million in 2000 to $109 million in 2014.9 The copyright holders looked for ways to stop the pillaging of their treasures. 2.

FIRST OPTION: SUE THE PIRATES

The RIAA and the Motion Picture Association of America (MPAA) are organizations that represent the music and motion picture industries, respectively.10 As representatives of the copyright holders, they began filing copyright infringement cases under section 301 of the Copyright Act against numerous defendants in 2003.11 But due to the anonymous nature of P2P file sharing, plaintiffs first had to identify those persons sharing copyrighted materials illegally. Initially, they used the provisions under the Digital Millennium Copyright Act (DMCA) to obtain subpoenas to serve on the Internet Service Providers (ISPs) for disclosure of the identities of the illegal file sharers.12 The DMCA provides an expedited method of obtaining subpoenas directly against the ISPs directing them to disgorge the name of the alleged violator.13 The provisions under DMCA do not require court approval to issue subpoenas and, therefore, were costeffective and time-efficient.14 However, this method of obtaining subpoenas to identify the violators was short-lived. In Recording Industry Association of America, Inc. v. Verizon Internet Services, Inc., the court held that subpoenas under the DMCA could only be issued in situations where the infringing material was actually stored on the servers of the ISP.15 Since P2P file sharing involves files being shared directly between the persons (hence “peer to peer”), the ISP 9. Cary Sherman, Scott Should Sign Bill that Addresses CD Counterfeiting, Digital Piracy, TAMPA TRIB. (Apr. 30, 2015), http://www.tbo.com/list/newsopinion-commentary/scott-should-sign-bill-that-addresses-cd-counterfeitingdigital-piracy-20150430/. 10. About RIAA, RIAA, http://www.riaa.com/aboutus.php (last visited Dec. 20, 2015); Our Story, MPAA, http://www.mpaa.org/our-story/ (last visited Dec. 20, 2015). 11. RIAA Will End Filesharing Lawsuits, LAWYERSHOP (Oct. 8, 2015), http://www.lawyershop.com/2008/12/26/riaa-will-end-filesharing-lawsuits. 12. Digital Millennium Copyright Act, 17 U.S.C.A. § 512(h) (Westlaw 2016). 13. Id. 14. Id. 15. Recording Indus. of Am., Inc. v. Verizon Internet Servs, Inc., 351 F.3d 1229, 1231 (D.C. Cir. 2003).

2016] FLORIDA'S TRUE ORIGINS OF DIGITAL GOODS

only acts as a “conduit for data transfer;” therefore, plaintiffs could not use the DMCA’s subpoena power to determine the identity of the illegal file sharers.16 Accordingly, to determine the identity of the pirates, the RIAA and the MPAA were forced to file John Doe lawsuits and request that the court issue a subpoena to the ISP requiring them to identify the alleged pirates.17 Between 2003 and 2009, the RIAA filed approximately 30,000 such lawsuits.18 This was, and is, a much more time-consuming and costly process. In 2009, the RIAA announced that it was abandoning its strategy of filing lawsuits against anonymous defendants, claiming that the lawsuits successfully taught the public that file sharing was illegal.19 But the piracy of copyrighted digital material continued. 3.

SECOND OPTION: EDUCATION, COOPERATION, AND FEDERAL LEGISLATION

The next effort of the RIAA and the MPAA was focused on educating the public about the illegality of file sharing. The first round of education resulted from overwhelmingly negative publicity resulting from the John Doe lawsuits.20 Next came the Higher Education Opportunity Act (HEOA), which became law in 2008.21 The HEOA requires colleges and universities to notify students of copyright laws and penalties for violations of those laws which result from illegal P2P file sharing.22 In addition to educating the public about the illegality of online piracy, the copyright holders sought and ultimately received the cooperation of major telecommunication companies that controlled the majority of internet servers.23 In 2011, five of the largest United 16. Id. at 1233. 17. RIAA v. The People: Five Years Later, EFF.ORG (Sept. 30, 2008), https://www.eff.org/wp/riaa-v-people-five-years-later#footnoteref35_k3gcuf4. 18. RIAA Will End Filesharing Lawsuits, supra note 11. 19. Mohsen Manesh, The Immorality of Theft, the Amorality of Infringement, 2006 STAN. TECH. L. REV. 5, 14 (2006); Bryan H. Choi, The Anonymous Internet, 72 MD. L. REV. 501 (2013). 20. RIAA Will End Filesharing Lawsuits, supra note 11. 21. Higher Education Opportunity Act, Pub. L. No. 110-315, 122 Stat. 3083 (2008). 22. Id. § 488(a)(1)(P)(i). 23. See Press Release, Music, Movie, TV and Broadband Leaders Team to Curb Online Content Theft (July 7, 2011), https://www.harryfox.com/ documents/press_releases/Music.Movie.TV.and.Broadband.Leaders.Curb.pdf).

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States telecommunication companies agreed to participate in the Copyright Alert System (CAS) and cooperate with groups representing â&#x20AC;&#x153;major copyright holders.â&#x20AC;?24 The CAS is a response system with graduated responses to copyright pirates who operate through a residential broadband service.25 Next came an effort to pass federal legislation to assist in combating online piracy. In 2011, the Stop Online Piracy Act (SOPA) was introduced in the House and its companion act, Protect IP Act (PIPA), was introduced in the Senate.26 The bills were intended to provide United States law enforcement with greater powers to combat illegal P2P file sharing with significantly increased criminal penalties.27 There was an immediate and intense backlash from opponents who claimed that SOPA and PIPA would greatly impact the First Amendment rights of anonymous file sharers.28 Opposition was immense, including a service blackout by more than 7,000 websites, including Google.29 As a result of this opposition, the two acts were pigeonholed.30 Despite these efforts, online piracy continued. 4.

STATE LAWS

When federal law fell short, copyright holders attacked pirating websites from another angle: through state legislatures in states that were disproportionately affected by online piracy. Since federal copyright laws would preempt similar state laws, states were forced to find other ways to help their copyright-holding citizens. In 2004, 24. Id. 25. Id. 26. Grant Gross, The US Stop Online Piracy Act: A Primer, PCWORLD (Nov. 16, 2011), http://www.pcworld.com/article/244011/the_us_stop_online_piracy_act_a_primer. html; Cecilia Kang, House Introduces Internet Piracy Bill, WASH. POST (Oct. 26, 2011), https://www.washingtonpost.com/blogs/post-tech/post/house-introducesinternet-piracy-bill/2011/10/26/gIQA0f5xJM_blog.html. 27. Cecilia Kang, House Introduces Internet Piracy Bill, WASH. POST (Oct. 26, 2011), https://www.washingtonpost.com/blogs/post-tech/post/house-introducesinternet-piracy-bill/2011/10/26/gIQA0f5xJM_blog.html. 28. See Gross, supra note 26. 29. See Gross, supra note 26; Matt McGee, SOPA Stats: 7 Million Petitions, 3.9 Million Tweets & Google Crawling Dropped 60%, MARKETING LAND (Jan. 19, 2012), http://marketingland.com/sopa-stats-7-million-petitions-3-9-million-tweetsgoogle-crawling-dropped-60-3815. 30. See McGee, supra note 29.

2016] FLORIDA'S TRUE ORIGINS OF DIGITAL GOODS

California enacted the True Name and Address Act, which required persons to disclose their true name and addresses on their websites if they knowingly disseminated commercial recordings or audiovisual works to more than ten people.31 Failure to do so is a misdemeanor.32 The act exempts dissemination in personal networks, licensees, agents of the copyright holder, and freely disseminated materials.33 The act also provides different penalties and fines for minors and adults.34 One commentator stated that the rationale behind the act was to build a trap for the unwary designed to allow the state to essentially enforce copyright law in state courts. . . . If an alleged infringer does embed their physical or email address with the title of the full commercial work to their file, copyright holders can easily find out whether the file is copyrighted, and if so, directly contact and sue the infringer under federal copyright law without having to subpoena their ISP. If an alleged copyright infringer does not include of this information, she can be liable under both state criminal law and federal copyright law, provided that the copyright holder is able to identify the infringer.35 Perhaps just as importantly, the alleged infringer would be prosecuted by local government authorities, so the copyright holders would not have to expend their own resources to learn the identity of these infringers, in essence getting a free ride. In 2014, Tennessee passed the True Origin of Goods Act as part of the Tennessee Consumer Protection Act.36 This act required the owner and operator of a website that deals with the “electronic dissemination” of “commercial recordings and audiovisual works” to clearly post his or her correct name, physical address, and telephone number.37 Failure to do so could result in fines, criminal penalties, 31. CAL. PENAL CODE § 653aa(a) (Westlaw 2016). 32. Id. 33. Id. § 653aa(c). 34. Id. § 653aa(a), (b). 35. Brian McFarlin, Note, From the Fringes of Copyright Law: Examining California’s “True Name and Address” Internet Piracy Statute, 35 HASTINGS CONST. L.Q. 547, 551–52 (2007–2008). 36. TENN. CODE ANN. §§ 47-18-401, 47-18-402 (Westlaw 2016) (defining key terms). 37. TENN. CODE ANN. §§ 47-18-404, 47-18-403 (Westlaw 2016).

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and other orders to enforce compliance.38 The Tennessee Attorney General was charged with enforcement of this act. 39 5.

Florida’s True Origins of Digital Goods Act

The True Origins of Digital Goods Act (TODGA) became a part of the Florida Consumer Protection chapter, effective July 1, 2015.40 This statute provides that “[a] person who owns or operates a website or online service dealing in substantial part in the electronic dissemination of third-party commercial recordings or audiovisual works to consumers in Florida must provide their “true and correct name, physical address, and telephone number or e-mail address” in an accessible location on that website or online service.41 Commercial recordings and audiovisual works are those “for sale, for rental, or for performance . . . but does not include an excerpt consisting of less than substantially all of a recording or audiovisual work.”42 Video games, depictions of video gameplay, and streaming of video game activity are specifically excluded from this act.43 The statute also provides that the term website “does not include a home page or channel page for the user account of a person who is not the owner or operator of the website upon which such user home page or channel page appears.”44 The statute provides that “[a]n owner, assignee, authorized agent or licensee of a commercial recording . . . electronically disseminated by a website or online service in violation of this section . . ..” may bring suit against the website owner.45 However, before filing suit, that person “must make reasonable efforts” to place the owner of the website or online service on notice “that the individual may be in violation of this section and that failure to cure within [fourteen] days may result in a civil action filed in a court of competent jurisdiction.”46 The statute allows the court to “make appropriate orders to compel compliance with this section.”47 The statute 38. 39. 40. 41. 42. 43. 44. 45. 46. 47.

TENN. CODE ANN. § 47-18-406 (Westlaw 2016). TENN. CODE ANN. § 47-18-405 (Westlaw 2016). FLA. STAT. ANN. § 501.155 (Westlaw 2016). Id. § 501.155(4)(a). Id. § 501.155(3)(a). Id. Id. § 501.155(3)(d). Id. § 501.155(5)(a). Id. Id. § 501.155(5)(b).

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provides that the prevailing party “is entitled to recover necessary expenses and reasonable attorney fees.”48 While this statute has many similarities to the Tennessee and California statutes, there are significant differences. First, although housed in the Consumer Protection Act, the clear intent of the statute, like the others, is to provide the copyright holder an easier means to determine the identity of the alleged copyright violator, to facilitate copyright infringement litigation against him or her.49 Also, the statute targets those websites that are dealing with “a substantial part” of another’s copyrighted material, which suggests that Florida, like Tennessee, recognizes a fair use of copyrighted materials.50 However, unlike either of those states’ statutes, this statute provides a private cause of action only, and thus it does not provide for criminal sanctions or fines.51 The state agencies are not involved in the investigation or prosecution of alleged offenders; that is left to the copyright holder.52 This statute also apparently allows a Florida court to regulate websites that are outside the state’s boundaries.53 TODGA generated significant publicity, both positive and negative. Those in favor of the legislation praise it as “a step in the right direction”54 and “just common sense.”55 Those opposing the

48. Id. § 501.155(5)(c). 49. Andrew M. Hinkes, A Closer Look at Florida’s Attempt to De-Anonymize Websites, LAW360 (Mar. 20, 2015), http://www.law360.com/articles/631862/acloser-look-at-florida-s-attempt-to-de-anonymize-websites. 50. See Sofia Castillo, Florida’s True Origin of Digital Goods Act is a Step in the Right Direction, COPYRIGHT ALLIANCE (May 21, 2015), http:// www.copyrightalliance.org/2015/05/floridas_true_origin_digital_goods_act_step_r ight_direction#.VqE2qvkrKM8. 51. See FLA. STAT. ANN. § 501.155(5). 52. See Erik Stallman, Florida’s “True Origins of Digital Goods Act” Threatens Online Anonymity, CDT (Mar. 25, 2015), https://cdt.org/blog/floridastrue-origins-of-digital-goods-act-threatens-online-anonymity/. 53. FLA. STAT. ANN. § 501.155(4)(a) (stating that TODGA applies to a person who disseminates works to consumers in the state, not to persons located within the state that disseminate work). 54. See generally Castillo, supra note 50. 55. Adam Benson, Florida’s True Origin of Goods Act is Just Common Sense, TALLAHASSEE DEMOCRAT (Apr. 22, 2015, 12:32 PM EDT), http://www.tallahassee.com/story/opinion/2015/04/22/floridas-true-origin-goodsact-just-common-sense/26182039/.

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legislation claim that it “threaten[s] online anonymity”,56 undermines free speech,57 and raises “multiple constitutional issues.”58 Legal commentators raise four major areas of concern over TODGA: 1) Federal Copyright law preempts TODGA; 2) TODGA violates the website owner’s anonymity; 3) TODGA violates the dormant Due Process Clause; and 4) TODGA exceeds its jurisdictional limits by attempting to compel compliance by nonresident websites.59 This Article addresses these issues and discusses the practical effectiveness of TODGA. II.

FEDERAL PREEMPTION

Congress has the power under the Supremacy Clause of the United States Constitution to preempt state laws: This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.60 There are three ways that federal law will preempt state law: (1) where Congress enacts a statute that expressly preempts state law (express preemption); (2) where Congress has so comprehensively 56. Stallman, supra note 52. 57. Stop Florida’s Unconstitutional Plan to Outlaw Anonymous Speech, EFF, https://act.eff.org/action/stop-florida-s-unconstitutional-plan-to-outlaw-anonymousspeech (last visited Jan. 21, 2016) [hereinafter EFF]. 58. Nick Evans, Online Disclosure Bill Raises Multiple Constitutional Concerns, WFSU (Apr. 10, 2015), http://news.wfsu.org/post/online-disclosure-billraises-multiple-constitutional-concerns. 59. See Andrew M. Hinkes, A Closer Look at Florida’s Attempt to DeAnonymize Websites, LAW360 (Mar. 20, 2015), http://www.law360.com/articles/631862/a-closer-look-at-florida-s-attempt-to-deanonymize-websites; Florida’s Bill to Ban Online Anonymity is Bogus, FIGHT FOR THE FUTURE, https://cms.fightforthefuture.org/florida-anti-privacy/ (last visited June 29, 2016) (stating that the Act “allows officials to take down alleged violators without any due process”). 60. U.S. CONST. art. VI, cl. 2.

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legislated in a particular field of regulation as to infer their intent to preempt any state action (implied field preemption); or (3) where it is impossible to comply with federal and state law in a particular area of regulation (implied conflict preemption).61 1. Is TODGA Expressly Preempted by the Copyright Act? The United States Constitution vests in Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”62 Notwithstanding this provision, before 1976 protection of copyrighted work was shared by federal and state governments, because the provision was not interpreted as providing exclusive control to Congress.63 The landscape of copyright protection changed in 1976 when Congress enacted an exclusively federal statutory system of copyright protection.64 This legislation, called the Copyright Act, contained a federal preemption provision in 17 U.S.C. Section 301(a), which provides: On and after January 1, 1978, all legal and equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statute of any State.65 The Copyright Act, therefore, has exclusive jurisdiction and preempts state law for any claims or disputes regarding works 61. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 15–16 (Fla. 2012) (citation omitted). 62. U.S. CONST. art. I, § 8, cl. 8. 63. U.S. DEP’T OF JUSTICE, 1844. Copyright Law—Preemption of State Law, JUSTICE.GOV, http://www.justice.gov/usam/criminal-resource-manual-1844copyright-law-preemption-state-law (last visited June 29, 2016). 64. Id. 65. 17 U.S.C.A § 301(a) (Westlaw 2016).

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covered by the act.66 To determine whether a particular state law is expressly preempted by the Copyright Act, Section 301 establishes a two-prong test.67 A state law will be preempted if: 1) intellectual property falls within the “subject matter of copyright” as defined by federal law, and 2) the claimed property rights are “equivalent to” the exclusive rights provided by federal copyright law.68 TODGA governs commercial recordings and audiovisual works as previously defined.69 The property governed by the Florida law is consistent with Section 102 of the Copyright Act, which governs sound recordings, motion pictures, and other audiovisual works.70 Therefore, the subject matter regulated by TODGA falls within the subject matter of copyright. There can be no dispute that the subject matter of TODGA is within the scope of the Copyright Act. Whether TODGA is preempted by Section 301 turns on whether the rights protected by TODGA are “equivalent to” the rights protected by the Copyright Act. In determining if rights are equivalent, courts generally apply “‘a functional test’ to determine whether the state law right at issue is equivalent to any of the exclusive rights under Section 106 of the Copyright Act.”71 A “state law right at issue is equivalent to any of the exclusive rights under Section 106 if ‘the right defined by state law may be abridged by an act which in and of itself would infringe one of the exclusive rights.’”72 Conversely, if an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display in order to constitute a statecreated cause of action, there is no preemption, provided that the extra element changes the nature of 66. U.S. DEP’T OF JUSTICE, supra note 63. 67. Id. (citing Crow v. Wainwright, 720 F.2d 1224, 1225 (11th Cir. 1983)). 68. 17 U.S.C.A. § 301(b). 69. 17 U.S.C.A. § 301(a). 70. Crow v. Wainwright, 720 F.2d 1224, 1226 (11th Cir. 1983); 17 U.S.C.A. § 102 (Westlaw 2016). 71. Wells v. Chattanooga Bakery, Inc., 448 S.W.3d 381, 389 (Tenn. Ct. App. 2014). 72. Id.

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the action so that it is qualitatively different from a copyright infringement claim. . . .73 Proponents of TODGA would point out that while both laws are for the purpose of protecting owners of commercial and audiovisual works, TODGA does not prohibit copyright infringement. Under TODGA, a person may infringe on copyrights so long as the person displays the true name and address of the website owner. Further, TODGA regulates all commercial works, not just copyrighted materials.74 Also, the act requires that the website owner disseminate the materials into Florida.75 They would further point out that TODGA is part of the Florida Consumer Protection Act; its stated purpose is to protect consumers from receiving contaminated files, viruses, and malware.76 The Copyright Act does not share this consumer protection purpose; its purpose is to protect the copyright holders.77 These differences could constitute extra elements, which would render TODGA qualitatively different from the Copyright Act and not preempted thereby. Critics of TODGA, however, would claim that although housed in the Consumer Protection Act, the true purpose of TODGA is to assist copyright holders in determining the identity of copyright pirates to facilitate copyright infringement litigation.78 Thus, the nature of the action is the same for TODGA and the Copyright Act: protection of a copyright holder. In addition, the statute is a civil statute, and the only people who can enforce its provisions are the owners (or their derivatives) of the subject materials.79 One would assume that if this were a true consumer protection statute, it would be enforced by a state agency or by all consumers who could be adversely affected by a violation of its provisions. If the statute is really designed to protect Florida citizens from receiving viruses and malware, then why aren’t those citizens able to enforce the provisions of the act? If a court recognized the perceived ruse of placing the statute within the Consumer Protection Act, do the elements of dissemination and commercial recordings alone constitute extra elements sufficient to save TODGA from 73. 74. 75. 76. 77. 78. 79.

Id. at 389–90. FLA. STAT. ANN. § 501.155(3)(a) (Westlaw 2016). Id. § 501.155(4). Benson, supra note 55. See generally 17 U.S.C.A § 102 (Westlaw 2016). See Stallman, supra note 52. FLA. STAT. ANN. § 501.155(5).

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preemption? Due to its recent enactment, no Florida court has yet considered the preemption issue and the constitutionality of TODGA. There are no reported decisions from any California court as to whether its true name and address statute would be preempted even though it has been in place since 2005. The Tennessee statute, like Florida’s, is fairly recent, and no Tennessee court has yet to consider this issue. There is a body of case law concerning state statutes known as Labeling Statutes, however, that might provide insight as to whether the Copyright Act would preempt TODGA. These Labeling Statutes require sound recording manufacturers to provide the “true name and address” of the manufacturer on the label of each product transferred commercially within the state.80 If an illegal manufacturer complies with the labeling statute, the identity of the violator would be known to the true copyright holder which would facilitate prosecution under the applicable copyright provisions.81 Approximately forty-six states have true name and address statutes, and the constitutionality of these statutes has been well litigated; the state courts have consistently upheld the constitutionality of the statutes.82 Some proponents have reasoned that since copyright violation is not an element of the statute, it does not affect equivalent rights of those protected under copyright law.83 Some courts have determined that the requirement of name and address adds an extra element to that of copyright infringement and, therefore, was not preempted by the Copyright Act.84 Another court upheld the constitutionality of the statute because its stated purpose was to protect consumers.85 In State v. Pierson, the Tennessee Court of Criminal Appeals considered whether the Tennessee labeling statute86 was preempted by the Copyright Act.87 The court recognized and concurred with other state courts that had upheld the constitutionality of labeling

80. Tammy W. Cowart et al., A Survey of State Copyright Law, 24 S. L.J. 311, 323 (2014). 81. Id. at 324. 82. See id. at 323–26. 83. Id. at 326. 84. Id. (citing Anderson v. Nidorf, 26 F.3d 100, 102 (9th Cir. 1994)). 85. Cowart et al., supra note 80, at 325 (quoting People v. M&R Records, Inc., 432 N.Y.S.2d 846, 850 (N.Y. Sup. Ct. 1980)). 86. TENN. CODE ANN. § 39-14-139 (Westlaw 2016). 87. State v. Pierson, No. W2012-02565-CCA-R3-CD, 2014 WL 261414 (Tenn. Crim. App. Jan. 23, 2014).

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statutes.88 In addition, the court reviewed the legislative history of section 301: We find the reasoning of these cases to be persuasive, especially in light of the legislative history of § 301. The bill as initially drafted included a non-exhaustive list of examples of “principal areas of protection that preemption would not prevent States from protecting,” including “deceptive trade practices such as passing off and false representation.”89 The Committee Report further explained: Section 301 is not intended to preempt common law protection in cases involving activities such as false labeling, fraudulent representation and passing off even where the subject matter involved comes within the scope of the copyright statute.90 The court concluded: Based on the case law and legislative history discussed above, we conclude that Tennessee Code Annotated section 39-14-139(d) is not preempted by the federal Copyright Act. The state statute focuses on labeling and packaging rather than the rights of the copyright owner. Indeed, the statute can be violated whether or not the defendant infringes upon the rights of the copyright owner. Although distribution is an element present in both the Copyright Act and in this statute, the label requirement . . . is an additional element that renders this statute “qualitatively different” from a copyright infringement claim. Moreover, and contrary to the Defendant’s argument, we believe that the aim of the statute is consumer protection, an area of legislation typically reserved for the state.91 The court’s rationale in Pierson is representative of the decisions upholding the constitutionality of labeling statutes and would most 88. 89. 90. 91.

Id. Id. at *6. Id. (emphasis in original). Id.

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likely provide sufficient justification for a court to uphold the constitutionality of TODGA. III.

TODGA DOES NOT VIOLATE THE WEBSITE OWNER’S RIGHT TO REMAIN ANONYMOUS

Adversely affected website owners would claim that TODGA violates their right to remain anonymous under the First Amendment and their right to privacy under the Florida Constitution.92 1. FIRST AMENDMENT FREEDOM OF SPEECH It is well established that the First Amendment protects the right to anonymous speech.93 The right to anonymous free speech extends to the internet: “[a]s with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without ‘fear of economic or official retaliation . . . . [or] concern about social ostracism.’”94 “This right is not absolute.”95 Whether specific anonymous speech is protected depends on the nature of the speech.96 A party who requests that the court issue an order compelling an ISP to identify an anonymous website owner must generally show the court that the need for the information outweighs the website owner’s interest in his or her anonymity.97 Courts have used various tests to balance these competing interests depending on the type of action in which the identity of the defendant is requested.98 In copyright infringement cases, for example, courts have generally used the test established in Sony Music Entertainment v. Does 1–40.99 In Sony, the plaintiff requested subpoenas to determine the identities of persons

92. See EFF, supra note 57. 93. Wilens v. Doe Defendant No. 1, No. 3:14-cv-02419-LB, 2015 U.S. Dist. WL 4606238, at *24 (N.D. Cal. July 31, 2015) (citation omitted). 94. In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (quoting McIntyre v. Oh. Elections Comm’n, 514 U.S. 334, 341–42 (1998)). 95. Wilens, U.S. Dist. WL 4606238, at *15. 96. See Thomas M. Cooley Law Sch. v. Doe 1, 833 N.W.2d 331, 338–40 (Mich. Ct. App. 2013). 97. Publix Supermarkets, Inc. v. Johnson, 959 So. 2d 1274, 1276 (Fla. Dist. Ct. App. 2007). 98. See Wilens, U.S. Dist. WL 4606238, at *15. 99. Sony Music Entm’t Inc. v. Does 1–40, 326 F. Supp. 2d 556 (S.D.N.Y 2004).

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who had allegedly illegally downloaded copyrighted recordings.100 The court set out a five-part test that a plaintiff must satisfy before the court would authorize a subpoena: 1) A concrete showing of a prima facie claim of actionable harm . . . ; 2) Specificity of the discovery request . . . ; 3) The absence of alternative means to obtain the subpoenaed information . . . ; 4) A central need for the subpoenaed information to advance the [plaintiff’s claim], . . . ; [and] 5) The [Doe’s] expectation of privacy.101 Other tests such as Dendrite and Cahill add an additional requirement that plaintiffs attempt to notify the anonymous party of their efforts to compel disclosure and to allow that party a reasonable opportunity to oppose such disclosure.102 TODGA requires a plaintiff to establish the following before the court can enter any order to compel compliance with this section: a) That before the action was filed, reasonable efforts to place the website owner on notice of violation of the section and provide 14 days to cure the violation; b) That the website is electronically disseminating covered material to Florida consumers; and c) That the true name, address and email address of the website owner is not displayed on the website.103 Florida courts have held that a website owner has no expectation of privacy regarding their name and address. Thus, assuming that the property holder has complied with TODGA before seeking “appropriate orders to compel compliance,” the website owner’s identity will not be protected by the First Amendment.104 100. Id. at 558–59. 101. Id. at 565–66. 102. Dendrite Int’l, Inc. v. Doe, 775 A.2d 756, 760 (N.J. Super. Ct. App. Div. 2005); Doe v. Cahill, 884 A.2d 451, 460 (Del. 2005). 103. FLA. STAT. ANN. § 501.155(4)–(5) (Westlaw 2016). 104. See id. § 501.155(5); see also Publix Supermarkets, Inc. v. Johnson, 959 So. 2d 1274, 1276 (Fla. Dist. Ct. App. 2007).

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2. FLORIDA CONSTITUTIONAL RIGHT OF PRIVACY In 1980, Florida enacted a constitutional right of privacy against governmental intrusions stating, “Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”105 In Publix Supermarkets, Inc. v. Johnson, the court considered whether names and addresses are types of information protected by this right of privacy.106 The court stated, “Article I Section 23, Florida Constitution affords Floridians . . . the right ‘to determine for themselves when, how, and to what extent information about them is communicated to others.’ Names, addresses, and telephone numbers are forms of identity information that can be considered private and confidential information.”107 The court concluded, “The release of names and telephone numbers, where irrelevant, would be an invasion of privacy.”108 It is implied from that language that when relevant, the court can compel the production of names and telephone numbers. In fact, Florida courts have consistently held “that an internet subscriber has ‘no protected privacy interest’ in his or her identifying information when same is sought for the purpose of maintaining a copyright infringement action.”109 Taking it a step further, a Federal District Court in Florida has said, “The Supreme Court ‘consistently has held that a person has no legitimate expectation of privacy and information that one voluntarily turns over to third parties.’”110 There is no expectation of privacy in internet subscriber information because it has already been exposed to a third party: the internet service provider.111 Notwithstanding that proclamation, the court recognized the proper balancing test is whether “Plaintiff’s interest in learning Defendant’s name and address outweighs Defendant’s

105. FLA. CONST. art. 1, § 23. 106. Publix, 959 So. 2d. at 1276. 107. Id. (citing Shaktman v. State, 553 So. 2d 148, 150 (Fla. 1989)). 108. Id. 109. Plastic the Movie Ltd. v. Doe, Case No. 15-cv-21310, U.S. Dist. WL 5634625, at *4 (S.D. Fla 2015). 110. Id. (quoting Smith v. Maryland, 442 U.S. 735, 743–44 (1979)). 111. Id. (quoting Malibu Media LLC v. Does, 1:12-CV-263, U.S. Dist. WL 6019259, at *4 (N.D. Ind. 2012)).

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privacy interest.”112 The plaintiff could assert that the legislature, by enacting TODGA as a Consumer Protection statute, had determined that the identification of the website owner was for the protection of consumers which would outweigh the defendant’s privacy interest. Even if the court recognized that the true purpose of the statute was to identify copyright infringers, courts have consistently held that an infringing website owner’s “expectation of privacy for sharing copyrighted music through an online file-sharing network [is] simply insufficient to permit him to avoid having to defend against a claim of copyright infringement.”113 Since only website owners who are electronically disseminating third-party commercial works to Florida citizens are required to comply with TODGA, and those doing so are most likely infringing on copyright interests, it is highly doubtful that a court would conclude that the requirements of TODGA impermissibly infringe on the website owner’s right of privacy. IV.

DOES TODGA VIOLATE THE COMMERCE CLAUSE?

The Commerce Clause of the United States Constitution provides Congress with the authority “[t]o regulate Commerce with foreign Nations, and among the several States.”114 This provision is not only an “affirmative grant of power to Congress to regulate interstate and foreign commerce,” but also implicitly limits the power of states to regulate interstate trade.115 This limitation on state regulatory power is known as the Dormant Commerce Clause.116 There are three different ways that a state statute might violate the Dormant Commerce Clause: 1) When the statute “directly regulates or discriminates against interstate commerce, or (whether) its effect is to favor in-state economic interests over out-of-state interests” (discriminatory state law); 117 112. Id. (quoting Rotten Records, Inc. v. Doe, 107 F. Supp. 3d 257, 259 (W.D.N.Y 2015)). 113. Id. (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2013)). 114. U.S. CONST. art. I, § 8, cl. 3. 115. S. Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984). 116. Am. Libraries Ass’n v. Pataki, 969 F. Supp. 160, 169 (S.D.N.Y 1997). 117. Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986).

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2) Where the “application of a state statute to commerce that takes place wholly outside of the state’s borders, whether or not the commerce has effects within the state” (extraterritorial state law);118 or 3) Where the state law imposes a burden on interstate commerce that outweighs the benefits to state or local interests.119 If a state statute that attempts to regulate interstate commerce is found to be either discriminatory or extraterritorial, it is per se invalid.120 If the statute is neither, then a court will balance the burden imposed on interstate commerce against the benefits to determine its validity.121 TODGA does not contain any provision that limits its provisions to resident websites. Instead, it provides that “[a] person who owns or operates a website . . . dealing . . . in electronic dissemination of third-party commercial recordings . . . and who disseminates such works to consumers in this state . . . .” is subject to its provisions.122 It is reasonable to assume that property holders would apply TODGA against non-resident website owners. If so, does TODGA impermissibly regulate interstate commerce? TODGA is not discriminatory on its face–its regulations would apply equally to both resident and non-resident website owners. Therefore, TODGA would not be invalid under the discriminatory test. Is TODGA impermissibly extraterritorial? Does it project its legislation into another state rendering it invalid? The issue at play is “whether the practical effect of the regulation is to control conduct beyond the boundaries of the State.”123 If TODGA is applied to nonresident websites, it would require those websites to prominently display their names, addresses, and email addresses. This would apply even to websites that do not appear to engage in any conduct within Florida. TODGA facially appears to have extraterritorial effects on non-resident websites. 118. Pataki, 969 F. Supp. at 175 (quoting Healy v. Beer Inst., 491 U.S. 324, 336 (1989)). 119. Pike v. Bruce Church, 397 U.S. 137, 142 (1970) (citation omitted). 120. See Brown-Forman Distillers Corp., 476 U.S. at 579. 121. Pike, 397 U.S. at 142. 122. FLA. STAT. ANN. § 501.155(4)(a) (Westlaw 2016). 123. Pataki, 969 F. Supp. at 174.

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The seminal case on the issue of extraterritoriality in the context of internet litigation is American Libraries Association v. Pataki.124 In Pataki, the plaintiffs challenged the constitutionality of a New York statute that criminalized disseminating obscene material to minors, claiming that the statute violated the Dormant Commerce Clause.125 The court recognized that the New York statute did not contain any restriction that the “criminal communication must take place entirely within the State of New York.”126 Instead, “[b]y its terms the Act applies to any communication, intrastate or interstate.”127 The court, after recognizing the complex interrelation between regulation of internet activity, and the well-established precedent of extraterritoriality, determined that New York has deliberately imposed its legislation on the Internet and, by doing so, projected its law into other states whose citizens use the Net. . . . This encroachment upon the authority which the Constitution specifically confers upon the federal government and upon the sovereignty of New York’s sister states is per se violative of the Commerce Clause.128 Under the Pataki analysis, TODGA impermissibly regulates conduct that would occur in other states and could per se violate the Dormant Commerce Clause. While Pataki is the leading case in the area of state laws regulating internet transmissions, several jurisdictions have rejected its analysis when interpreting their own state law. In Simmons v. State of Florida, for example, the Florida Supreme Court took a different view of extraterritoriality.129 In Simmons, the court reviewed a federal district court’s decision upholding the constitutionality of a Florida criminal statute. The defendant, Simmons, a resident of Virginia, was criminally charged with luring or enticing a child by use of an online service in violation of Florida law.130 The defendant claimed that the Florida statute violated the Dormant Commerce 124. 125. 126. 127. 128. 129. 130.

Id. Id. Id. at 169. Id. Id. at 177. See Simmons v. State of Florida, 944 So. 2d 317 (Fla. 2006). Id. at 321.

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Clause citing Pataki and its progeny.131 Simmons’s factual claim was that the Florida statute impermissibly regulated conduct (transmission of emails from Virginia) which occurred entirely outside of its borders.132 The Florida court, however, upheld the statute, distinguishing it from Pataki: Finally, we conclude that the luring statute does not extend to conduct that takes place wholly outside of Florida’s borders. A person who commits a crime partly in one state and partly in another may be tried in either state . . . . In the case of using a computer to solicit a Florida minor . . . the element of soliciting must involve a child residing in this state. . . . [A]nd thus the conduct takes place partly in in Florida where the targeted child resides and receives the email.”133 In the court’s view, the conduct prohibited by the statute included the transmission of emails (which in this case was from outside the state) and the receipt of those materials by Florida minors. The court emphasized that this interpretation was consistent with and based, at least partly, on the proposition that one can be criminally prosecuted for crimes which are committed partly within and partly outside of the state.134 It is doubtful that the Simmons rationale can be used to validate TODGA. TODGA governs those who electronically disseminate commercial works or audiovisual works to Florida consumers.135 However, under TODGA, a website owner disseminates by “initiating a transmission, making available or otherwise offering for distribution” these protected materials.136 Unlike Simmons where the violation occurred partly in Florida, when a website owner is merely making these materials available to Florida consumers, the TODGA violation would occur entirely outside of Florida. Under Pataki, TODGA appears to be impermissibly extraterritorial, violating the Dormant Commerce Clause.

131. 132. 133. 134. 135. 136.

Id. at 332. Id. at 331. Id. at 334–35. Id. at 335. FLA. STAT. ANN. § 501.155 (Westlaw 2016). Id. § 501.155(3)(b).

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If, however, a court did validate the statute under Simmons, then the court would move to the third step in the analysis: balancing the burden on interstate commerce against the benefit to the state, using the Pike balancing test.137 “Pike requires a twofold inquiry. The first level of examination is directed at the legitimacy of the state’s interest. The next and more difficult determination weighs the burden on interstate commerce in light of the local benefit derived from the statute.”138 Is the state interest which resulted in the enactment of TODGA sufficiently legitimate to satisfy the first prong of the Pike test? Proponents would assert that because TODGA is housed in the Consumer Protection Act, the purpose of TODGA is to protect Florida consumers from malware and spyware that result from receiving commercial works or audio recordings from anonymous websites.139 If the court accepts that premise, then protection of the state’s consumers is probably a legitimate state interest.140 However, if the court were to determine that the real interest being protected is copyrighted materials, then it is probably not an interest that legitimately needs state protection. That interest is already protected by federal copyright law. Whether TODGA reflects a legitimate state interest will most likely depend on the level of scrutiny exercised by the reviewing court. If TODGA survives the first prong of the Pike test, then the court would balance the burden on the website owners against the benefits derived by Florida consumers. Under Pike, the burden must be clearly excessive to invalidate the statute.141 The burden on website owners would be their inability to maintain anonymity. But what is the benefit to Florida consumers? Consumers whose computers might be infected by spyware and malware likely do not have standing to proceed under TODGA. The statute only allows the property holders of the materials disseminated to enforce its provisions.142 Does the benefit to property holders (being able to identify infringing websites using TODGA) outweigh the burden of exposing the identity of the website owner?

137. 138. 139. 140. 141. 142.

Pike v. Bruce Church, 397 U.S. 137, 142 (1970). Am. Libraries Ass’n v. Pataki, 969 F. Supp 160, 177 (S.D.N.Y 1997). See Castillo, supra note 50. IMS Health, Inc. v. Ayotte, 550 F.3d 42, 45–55 (1st Cir. 2008). See Pike, 397 U.S. at 142. FLA. STAT. ANN. § 501.155(5)(a) (Westlaw 2016).

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There are other methods available to identify violating website owners, including the filing of a copyright infringement case. A court would likely conclude that the benefit of TODGA to the applicable Florida consumers (property holders) is small. Yet, as discussed above, the anonymity of infringing website holders is accorded virtually no constitutional protection; thus, the burden of placing identifying information on their websites is also small.143 It is probable that website owners would not meet the “clearly excessive” Pike standard. While it is highly likely that a court would find that TODGA violates the Dormant Commerce Clause as being extraterritorial, instead of rendering it invalid, the court could take another approach. Since the statute does not designate the geographic scope of TODGA, the court could limit its jurisdiction to only those website owners who are located in Florida. This approach would be consistent with the well-established principle that a statute should be interpreted to protect its constitutionality whenever reasonable.144 It is probable that TODGA is impermissibly extraterritorial and violates the Dormant Commerce Clause. If so, then a court could invalidate the statute or limit its jurisdiction to those websites located in Florida. V. DO FLORIDA COURTS HAVE PERSONAL JURISDICTION TO ENFORCE TODGA AGAINST NON-RESIDENT WEBSITE OWNERS WHO ELECTRONICALLY DISSEMINATE MATERIALS TO FLORIDA CONSUMERS? In Florida, to establish jurisdiction over a non-resident defendant, a plaintiff “must show that exercising jurisdiction over [a defendant] would comply with both the Florida long-arm statute and federal due process requirements.”145 The Florida Supreme Court has created a two-step process to establish jurisdiction: “a trial court must decide whether (1) there are sufficient jurisdictional facts to bring the action within the purview of [section 48.193, Florida Statutes]; and (2) the non-resident defendant involved has sufficient minimum contacts

143. See Plastic the Movie Limited v. Doe, Case No. 15-cv-21310, 2015 U.S. Dist. WL 5634625, at *4 (S.D. Fla. 2015). 144. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988). 145. Tobinick v. Novella, Case No. 9:14-CV-80781, U.S. Dist. WL 328236, at *3 (S.D. Fla. 2015).

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with Florida to satisfy constitutional due process requirements.”146 The Due Process Clause of the Fourteenth Amendment requires that the defendant have minimum contacts with the forum state and that the exercise of jurisdiction over the defendant does not offend “traditional notions of fair play.”147 The Florida long-arm statute determines whether the court can exercise general or specific jurisdiction over a non-resident defendant. A property holder who sues a non-resident website owner for a violation of TODGA would do so asserting that Florida has specific jurisdiction under section 48.193(1)(a)(2), alleging that the website owner has committed a tortious act within this state. Non-resident website owners violate TODGA by “initiating a transmission of, making available, or otherwise offering”148 commercial works or audiovisual recordings through the internet to Florida consumers without prominently displaying their contact information on the website.149 The violation of TODGA occurs entirely outside of Florida. However, the resulting injury (if any) occurs in Florida when these protected materials are disseminated to Florida consumers. Does this injury in Florida, caused by an out-ofstate act, constitute “a tortious act within this state” 150 sufficient to confer jurisdiction to Florida courts? Florida courts are divided on this issue. Florida’s First and Third Courts of Appeal and the federal courts confer jurisdiction over defendants whose out-of-state acts cause injury within Florida.151 The State’s Second, Fourth, and Fifth Courts of Appeal do not.152 Therefore, only those property owners who may appropriately initiate their claims under TODGA in the

146. Teva Pharmaceutical Indus. v. Ruiz, 181 So. 3d 513, 515 (Fla. Dist. Ct. App. 2015) (citing Kin Yong Lung Indus. Co. v. Temple, 816 So. 2d 663, 665–66 (Fla. Dist. Ct. App. 2002)). 147. Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945). 148. FLA. STAT. ANN. § 501.155(3)(b) (Westlaw 2016). 149. Id. § 501.155. 150. FLA. STAT. ANN. § 48.193(1)(a)(2). 151. Int’l Harvester v. Mann, 460 So. 2d 580 (Fla. Dist. Ct. App. 1984); Wood v. Wall, 666 So. 2d 984 (Fla. Dist. Ct. App. 1996); Sun Bank N.A. v. E.F. Hutton & Co., 926 F.2d 1030 (11th Cir. 1991). For an excellent discussion of this jurisdictional divide, see Is Injury a Tortious Act?: Interpreting Florida’s Long Arm Statute, 66 FLA. L. REV. 2301 (2014). 152. Phillips v. Orange Co., 522 So. 2d 64 (Fla. Dist. Ct. App. 2006); Thomas Jefferson Univ. v. Romer, 710 So. 2d 67 (Fla. Dist. Ct. App. 1998); Deloitte & Touche v. Gencor Indus., 929 So. 2d 678 (Fla. Dist. Ct. App. 2006).

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First and Third Courts of Appeal could satisfy the requirements of the Florida long-arm statute. In those state courts where personal jurisdiction over a nonresident defendant who violates TODGA is appropriate under Florida’s long-arm statute, the state court would determine whether the exercise of jurisdiction would violate the Due Process Clause of the Fourteenth Amendment. The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties or relations.’”153 To ensure that due process is not violated, the Eleventh Circuit has set forth three required criteria: 1) whether the plaintiff’s claims “arise out of or relate to” at least one of defendant’s contacts with the forum; 2) whether the nonresident defendant “purposefully availed” himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state’s laws; and 3) whether the exercise of personal jurisdiction comports with “traditional notions of fair play and substantial justice.”154 In these cases, the burden is on the plaintiff to prove the first two steps; if he does, the burden shifts to the defendant,155 who must then “make a compelling case that the exercise of jurisdiction would violate traditional notions of fair play and substantial justice.”156 As stated above, the first prong focuses on whether a “plaintiff’s claim[] arise[s] out of or relate[s] to at least one of the defendant’s contacts with the forum.”157 “Necessarily, the contact must be a ‘butfor’ cause of the tort, yet the causal nexus between the tortious conduct and the purposeful contact must be such that the out-of-state resident will have ‘fair warning that a particular activity will subject 153. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72 (1985) (quoting Int’l Shoe Co. v. State of Washington, 326 U.S. 310, 319 (1945)). 154. Louis Vuitton Malletier v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013). 155. Id. 156. Id. (quoting Diamond Crystal Brands v. Food Movers Int’l, 593 F.3d 1249, 1267 (11th Cir. 2010)) (internal quotations omitted). 157. Id. (quoting Fraser v. Smith, 594 F.3d 842, 850 (11th Cir. 2010)) (internal quotations omitted).

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[it] to the jurisdiction of a foreign sovereign.’”158 A website owner’s intentional violation of TODGA, by maintaining a website and electronically disseminating covered works anonymously, would result in contact with Florida through the consumer’s injury.159 This contact would sufficiently satisfy the first prong. To determine the second prong of the test, Florida uses the effects test as developed by Calder v. Jones.160 Under the Calder effects test, a non-resident defendant’s single tortious act can establish purposeful availment without regard to whether the defendant had any other contacts with the forum state.161 The Calder test is satisfied when the tort (1) was “intentional; (2) [was] aimed at the forum state, and (3) caused harm that the defendant should have anticipated would be suffered in that state.”162 Any violation of TODGA by a website owner would satisfy the first issue. Whether the second and third issues can be satisfied depends on how the website is disseminating the material. If the website is initiating a transmission of covered materials to Florida consumers, the conduct would be aimed at Florida consumers, and the violator should have anticipated the harm that his transmission would cause to the property holders. However, if the website owner merely is making available covered materials on their website so they are accessible to anyone, it is highly doubtful that such passive conduct would satisfy the Calder test. In Walden v. Fiore, plaintiff, a resident of Nevada, claimed that defendant, a police officer, impermissibly seized cash from them in Georgia.163 The United States Supreme Court dismissed the case for lack of personal jurisdiction, holding that, “for a state to exercise jurisdiction consistent with due process, the defendants’ suit-related conduct must create a substantial connection with the forum state.”164 The Court further stated, “Due Process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the ‘random fortuitous, or attenuated’ contacts he makes 158. Oldfield v. Pueblo De Bahia Lora, 558 F.3d 1210, 1223 (11th Cir. 2009) (quoting Burger King, 471 U.S. at 472). 159. See Battery on the Go, Inc. v. Walt Disney Co., Case No. 1:15-CV-21973DPG, 2015 U.S. Dist. WL 6472322 (S.D. Fla. Sept. 14, 2015). 160. Id. 161. Calder v. Jones, 465 U.S. 783 (1984). 162. Licciardello v. Lodelady, 544 F.3d 1280, 1286 (11th Cir. 2008). 163. 134 S. Ct. 1115, 1120 (2014). 164. Id. at 1121.

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by interacting with other persons affiliated with the State.”165 After Walden, it is doubtful that the mere posting of covered material on a non-resident website that is accessible by consumers (including those consumers located in Florida) would create a “substantial connection” with Florida consistent with due process.166 Whether any other means of offering the material under TODGA would satisfy the due process requirements would depend on how “actively” the website owner “offered” the covered materials to Florida consumers.167 In those situations where the Calder test is satisfied, the third prong of the analysis requires the defendant to present a “compelling case that the presence of some other considerations would render jurisdiction unreasonable.”168 “These considerations include ‘the burden on the defendant of litigating in the forum, the forum’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief and the judicial system’s interest in resolving the dispute.”‘169 Quite clearly, the plaintiff property owner would have an interest in litigating the issues of a TODGA violation in the state of Florida. It is also evident that Florida, which created the statutory cause of action, would have an interest in adjudicating the TODGA violation in the state for the benefit of its consumers. Is the judicial system interested in resolving TODGA violations? If the judicial system accepts the proposition that TODGA is designed to protect consumers from viruses and malware, then it is likely willing to adjudicate the disputes. If the judicial system recognizes that the true purpose behind TODGA is to facilitate copyright infringement lawsuits (which will be heard in the federal courts), then that interest might be lessened. Finally, while there would certainly be a burden on non-resident defendants to litigate a TODGA case in Florida, it would not be unreasonable, assuming that the defendant actively disseminated materials into the state. The burden would be no greater than that to any non-resident defendant in another case. 165. Id. at 1123 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). 166. Id. at 1121. 167. Nu Image, Inc., v. Does, Case No. 2:11-cv-545-FtM-29SPC2012, 2012 U.S. Dist. WL 1890829, at *3 (M.D. Fla. May 24, 2012). 168. Burger King Corp., 471 U.S. at 477. 169. Vasquez v. Maya Publ’g Grp., Case No. 14-20791-Civ, 2015 U.S. Dist WL 2170397, at *4 (S.D. Fla. May 8, 2015) (quoting Licciardello v. Lovelady, 544 F.3d 1280, 1284 (11th Cir. 2008)).

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To conclude, there appears to be limited applicability of TODGA to non-resident websites. It is probable that such jurisdiction will be asserted by the Florida state courts in the First and Third Districts, and only over non-resident websites that actively disseminate protected materials to Florida consumers. VI.

EFFECT OF TODGA ON DIGITAL PIRACY IN FLORIDA

TODGA has armed copyright holders with new, and potentially effective, tools to combat digital pirates; just how effective these tools are will depend on whether the judicial system will uphold the constitutionality of the statute and, if so, enforce its provisions against non-resident website owners. Florida courts will most likely hold that TODGA is not preempted by the federal Copyright Act. However, the website owner might successfully assert that TODGA violates the Commerce Clause and is unconstitutional. If so, then the statute could be ruled unconstitutional or more likely, the courts would interpret the statute to apply only to Florida residents. If TODGA is constitutionally valid as to Florida residents then as to any Florida websites that violate TODGA, the state courts could issue any order necessary to compel compliance with TODGA. Presumably, these courts could compel an ISP to provide the identity of the website owner to the court and the copyright holder. The court would also have the authority to compel the ISP to shut down the offending website. This would seem to be a much quicker and more cost-effective method of identifying the infringing party and dealing with the offending website than is currently available in federal court. The more difficult issue is whether TODGA will be enforceable against non-resident websites, either by Florida state courts or by the courts in the states where the website is hosted. As discussed previously, Florida may not have personal jurisdiction over the website owner. The website owner could raise these issues either in Florida state courts before any order is issued or later, in the host state, when a Florida state court order is presented for enforcement. A Florida state court could determine that TODGA is unenforceable against a non-resident under either argument. It is even more likely that a host state court would decline to enforce a Florida statute that negatively impacts its citizens and is inconsistent with its own laws. As discussed previously, either legal challenge would certainly create more expense and prolong the litigation process, which is exactly what TODGA proponents were trying to avoid by its passage. Also,

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if either a Florida court or a host state court would determine that TODGA cannot be enforced against non-resident websites, the website owners would be a prevailing party and could request their attorneyâ&#x20AC;&#x2122;s fees.170 In that situation, it would be more prudent for copyright holders to sue the non-resident websites for copyright infringement in federal court. In conclusion, while TODGA may have some positive effect on fighting digital piracy in Florida, its impact most probably will be limited and certainly does not justify either the doomsday concerns of its critics nor the hype generated by its advocates.

170. FLA STAT. ANN. Â§ 501.155(5)(c) (Westlaw 2016).

BLIND IMITATION: THE REVOLTING PERSISTENCE OF BOWERS V. HARDWICK L. JOE DUNMAN* ABSTRACT In Bowers v. Hardwick, the U.S. Supreme Court upheld the criminal prohibition of sodomy. In dissent to that landmark decision, Justice Harry Blackmun, quoting Justice Oliver Wendell Holmes, denounced as “revolting” any rule of law that “simply persists from blind imitation of the past.” Bowers was explicitly overruled in 2003 by Lawrence v. Texas. But by that time, most federal circuit courts had applied the reasoning of Bowers to reject any suggestion that sexual orientation might be a suspect classification under the Fourteenth Amendment. As it turns out, the overruling of Bowers by Lawrence did little to disrupt the blind imitation of bad precedent by the lower courts, which still persists today. This Article illustrates how federal appellate courts have applied the reasoning of Bowers to foreclose any consideration whether sexual orientation can constitute a suspect class and have applied rational basis scrutiny to state actions targeting gays and lesbians. This Article shows how Bowers’ reasoning has been upheld repeatedly, by district court judges in the wake of United States v. Windsor. Finally, this Article describes how Obergefell v. Hodges has failed to disrupt Bowers-based precedent and what courts still must do, thirty years later, to put to rest a revolting decision that was “wrong when it was decided.”

Attorney, Clay Daniel Walton & Adams, P.L.C., Louisville, Kentucky. The author served as co-counsel for the plaintiff couples in the Kentucky marriage equality cases Bourke v. Beshear and Love v. Beshear, later consolidated sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The author thanks Grace Chambers and Isaac Fain for research and editing assistance.

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TABLE OF CONTENTS

INTRODUCTION ................................................................................... 68 I. HOW BOWERS FORECLOSED SUSPECT CLASS ANALYSIS AND HEIGHTENED SCRUTINY .............................................................. 71 A. Equality Foundation: The Trial .......................................... 71 B. Equality Foundation I: The First Appeal ........................... 76 C. Equality Foundation I: Vacated and Remanded ................ 79 D. Equality Foundation II: On Remand .................................. 81 II. RUMORS OF BOWERS’S DEATH ARE GREATLY EXAGGERATED ....... 83 A. Lawrence v. Texas............................................................... 83 B. Scarbrough v. Morgan County Board of Education ........... 87 C. Davis v. Prison Health Services ......................................... 91 III. WINDSOR: A SWORD BUT NOT A SCALPEL.................................... 92 A. United States v. Windsor ..................................................... 92 B. Post-Windsor District Court Resistance ............................. 95 1. Obergefell v. Wymyslo and Henry v. Himes .................. 96 2. Bourke v. Beshear and Love v. Beshear ........................ 98 C. DeBoer v. Snyder .............................................................. 100 IV. THE LIMITED VICTORY OF OBERGEFELL V. HODGES ................... 102 V. ENDING THE BLIND IMITATION .................................................... 106

Like Justice Holmes, I believe that “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”1 INTRODUCTION In the summer of 1986, the U.S. Supreme Court ruled that the states could constitutionally criminalize the consensual sexual activity of gay people.2 Four years earlier, as they attempted to serve him with an arrest warrant, Atlanta police officers discovered Michael Hardwick having oral sex with a male partner in his home. Hardwick was arrested for violating Georgia’s anti-sodomy law.3 1. Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, J., dissenting). 2. See id. at 186. 3. See GA. CODE ANN. 16-6-2 (1984) (Westlaw 2016).

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Though prosecutors abandoned the charge, Hardwick subsequently filed a declarative action in the Northern District of Georgia challenging the law under the Fourteenth Amendment. His case was dismissed.4 The Eleventh Circuit reversed, and Georgia Attorney General Michael Bowers appealed to the U.S. Supreme Court.5 Justice Byron White wrote for the sharply divided Court that Hardwick “would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.”6 He dismissed Hardwick’s substantive due process claim because prohibitions of sodomy had “ancient roots,” and therefore “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”7 The Court applied rational basis scrutiny and upheld the law as reasonably based upon “essentially moral choices.”8 Justices Harry Blackmun and John Paul Stevens wrote vigorous dissents. Blackmun first attacked how the Court framed the underlying question—whether there is a right to homosexual sodomy—and then turned to Justice Louis Brandeis’ famous dissent in Olmstead v. United States.9 Blackmun argued that Hardwick’s claim invoked “the right to be let alone,” not a right to any particular sexual conduct.10 And he rejected the majority’s view that Georgia’s law could survive even rational basis scrutiny because it was justified

4. See Hardwick v. Bowers, 760 F.2d 1202, 1204 (11th Cir. 1985). 5. See id. at 1212–13 (“In sum, the Supreme Court’s analysis of the right to privacy in Griswold v. Connecticut, Eisenstadt v. Baird, and Stanley v. Georgia leads us to conclude that the Georgia sodomy statute implicates a fundamental right of Michael Hardwick. The activity he hopes to engage in is quintessentially private and lies at the heart of an intimate association beyond the proper reach of state regulation. Such a right is protected by the Ninth Amendment, and the notion of fundamental fairness embodied in the due process clause of the Fourteenth Amendment. We therefore remand this case for trial, at which time the State must prove in order to prevail that it has a compelling interest in regulating this behavior and that this statute is the most narrowly drawn means of safeguarding that interest.”) (internal citations omitted). 6. Bowers, 478 U.S. at 191. 7. Id. at 194. 8. Id. at 196. 9. See id. at 199 (Blackmun, J., dissenting) (citing Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)). 10. Bowers, 478 U.S. at 199.

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only by tradition.11 Driving his point home, Blackmun then quoted Brandeis’s contemporary on the Court, Justice Oliver Wendell Holmes, Jr: Like Justice Holmes, I believe that “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”12 Stevens similarly rejected mere historical habit as a rational basis for Georgia’s statute.13 Nevertheless, Bowers was the law, and circuit courts harshly applied its reasoning in subsequent claims of discrimination by gays and lesbians, who argued that sexual orientation was a suspect classification, and therefore government actions targeting them should receive heightened scrutiny. Not so, said the courts. Because homosexual conduct was constitutionally proscribable under Bowers, the perpetrators of that conduct—gays and lesbians—therefore could not be considered a suspect class and heightened scrutiny would be inappropriate. Over the next fifteen years, anti-gay government actions were assessed on a lenient rational basis standard and many discriminatory laws were upheld. Bowers was overruled in 2003 when the Court in Lawrence v. Texas found anti-sodomy laws were an irrational interference with individual liberty.14 Justice Anthony Kennedy, writing for a divided Court like in Bowers, adopted Justice Stevens’s reasoning word for word: “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”15 And Kennedy minced no words: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”16 11. See id.; see also Williams v. Illinois, 399 U.S. 235, 239 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates [a discriminatory law] from constitutional attack.”). 12. Bowers, 478 U.S. at 199 (Blackmun, J., dissenting). 13. See id. at 216 (Stevens, J., dissenting). 14. See Lawrence v. Texas, 539 U.S. 558 (2003). 15. Id. at 577. 16. Id. at 578.

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Lawrence v. Texas should have been the end for Bowers and its progeny, but its underlying premises still live on as controlling precedent in a majority of the circuit courts of appeals. Even after the landmark decisions of United States v. Windsor (striking down the federal Defense of Marriage Act)17 and Obergefell v. Hodges (striking down state gay marriage bans),18 any consideration that sexual orientation may be a suspect classification has been foreclosed across most of the country. By “blind imitation of the past,” Bowers has persisted as controlling precedent long after it was undeniably overruled. Justices Holmes and Blackmun proved quite prescient.19 In Part I, this article will illustrate how federal appellate courts, specifically the Sixth Circuit, (1) applied the reasoning of Bowers v. Hardwick to foreclose any consideration of whether sexual orientation can constitute a suspect class and (2) applied rational basis scrutiny to laws targeting gays and lesbians. Part II describes how that reasoning has been blindly imitated despite the explicit overruling of Bowers by Lawrence. Part III discusses a failed insurrection by lower courts in the wake of Windsor. Part IV will show how Obergefell, though sweeping in its rejection of state marriage bans, may have done some, but not enough, to upset this status quo of applying rational basis scrutiny to anti-gay government actions. Lastly, Part V confronts the difficult challenge still ahead: finally eliminating the “revolting” legacy of a case that was “not correct when it was decided” and “not correct today,” but is nevertheless still very much in force.20 I. HOW BOWERS FORECLOSED SUSPECT CLASS ANALYSIS AND HEIGHTENED SCRUTINY A. Equality Foundation: The Trial In March of 1991, the city of Cincinnati passed the “Equal Employment Opportunity Ordinance,” prohibiting discrimination in city hiring on the basis of numerous classifications, including sexual orientation.21 In November of 1992, the “Human Rights Ordinance” followed, banning sexual orientation discrimination in private 17. 133 S. Ct. 2675 (2013). 18. 135 S. Ct. 2584 (2015). 19. Bowers, 478 U.S. at 199 (Blackmun, J., dissenting). 20. Lawrence, 539 U.S. at 578. 21. Equality Found. v. City of Cincinnati, 860 F. Supp. 417, 421 (S.D. Ohio 1994) (stating that the statute is invalid).

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employment, housing, and public accommodations; it also created due process protections for alleged victims and penalties for violations.22 These ordinances were groundbreaking for the time period (especially in a Midwestern state like Ohio) and caused an immediate conservative backlash. A local organization called Equal Rights Not Special Rights (ERNSR) led a ballot initiative not only to repeal the ordinances, but also to preclude any future ordinance â&#x20AC;&#x153;which provides that homosexual . . . orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment.â&#x20AC;?23 Issue 3, as this initiative was known, was a charter amendment rather than a simple repeal of the ordinances.24 Despite organized political opposition from a group called Equality Foundation of Greater Cincinnati, Inc., Issue 3 passed by a vote of 62% to 38%.25 It took effect in early November of 1993.26 Equality Foundation and several individual gay and lesbian plaintiffs, represented by local attorney Al Gerhardstein (who would later represent Jim Obergefell in the eponymous Supreme Court case), then filed suit against the city of Cincinnati in the Southern District of Ohio.27 The suit sought a preliminary injunction and alleged violations of the First and Fourteenth Amendments of the U.S. Constitution.28 Almost immediately after Issue 3 passed, the complaint and motion arrived at the desk of District Judge S. Arthur Spiegel.29 Judge Spiegel, appointed by President Carter in 1980, was seventy-three years old at the time.30

22. Id. (stating that the statute is invalid). 23. Equality Found. v. City of Cincinnati, 838 F. Supp. 1235, 1236 (S.D. Ohio 1993). 24. Equality Found., 860 F. Supp. at 427. 25. Julie Irwin, Law Denying Gay Protection Stands, Supreme Court Decision Ends 5-Year Battle, CIN. ENQUIRER (Oct. 14, 1998), http://enquirer.com/editions/ 1998/10/14/loc_gayrights14.html. 26. Id. 27. Equality Found., 838 F. Supp. at 1235. 28. Id. 29. Id. at 1243. 30. See Biographical Directory of Federal Judges: Spiegal, S. Arthur, FEDERAL JUDICIAL CENTER, http://www.fjc.gov/servlet/nGetInfo?jid=2254 (last visited May 1, 2016).

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Things happened quickly. The law was passed on November 2. By November 15, both sides had fully briefed the issues and a hearing was held.31 Four days later, Judge Spiegel granted Equality Foundation’s motion for a preliminary injunction with a relatively brief ruling focused on the typical four-part preliminary injunction balancing test.32 Citing various lines of cases dealing with voting rights, candidate eligibility, and the political process, Judge Spiegel ruled “there is a substantial likelihood that Issue 3 infringes the Plaintiffs’ First Amendment rights, and their fundamental right to participate equally in the political process.”33 And that likelihood constituted a real threat of irreparable harm.34 Since fundamental rights were involved, Judge Spiegel applied strict scrutiny and also found no “compelling state interest” behind the new law.35 Issue 3 was thereby preliminarily enjoined.36 Litigation continued in the district court for nearly a year. A fourday bench trial was held in June of 1994, during which both sides presented a total of nine expert witnesses from fields as diverse as psychology, history, political science, medicine, and the law.37 In his subsequent ruling on the merits, Judge Spiegel announced twentythree specific findings of fact that today may seem obvious but at the time were totally unprecedented in the Sixth Circuit. Among them: 2. Sexual orientation is a characteristic which exists separately and independently from sexual conduct or behavior.

31. Equality Found., 838 F. Supp. at 1235. 32. Id. at 1238 (“In determining whether to issue a preliminary injunction the district court must balance four interrelated criteria: 1) Whether the Plaintiffs have shown a strong or substantial likelihood or probability of success on the merits; 2) Whether the Plaintiffs have shown irreparable injury; 3) Whether the issuance of a preliminary injunction would cause substantial harm to others; [and] 4) Whether the public interest would be served by issuing a preliminary injunction.”) (internal citations omitted). 33. Id. at 1242. 34. Id. 35. Id. 36. Id. 37. See Equality Found. v. City of Cincinnati, 860 F. Supp. 417, 424–26 (S.D. Ohio 1994). A 2010 case had almost the same expert testimony and other evidence regarding the nature of homosexuality and the ability of gays and lesbians to fully participate in society. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010).

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3. Sexual orientation is a deeply rooted, complex combination of factors including a predisposition towards affiliation, affection, or bonding with members of the opposite and/or the same gender. ... 5. [sic] Sexual behavior is not necessarily a good predictor of a person’s sexual orientation. ... 8. Sexual orientation is set in at a very early age—3 to 5 years—and is not only involuntary, but is unamenable to change. 9. Sexual orientation bears no relation to an individual’s ability to perform, contribute to, or participate in, society. ... 13. Homosexuals have suffered a history of pervasive, irrational and invidious discrimination in government and private employment, in political organization and in all facets of society in general, based on their sexual orientation. ... 15. Gays, lesbians and bisexuals are an identifiable group based on their sexual orientation and their shared history of discrimination based on that characteristic. ... 17. In at least certain crucial respects, gays, lesbians and bisexuals are relatively politically powerless .. . .38 With these groundbreaking declarations, Judge Spiegel considered the plaintiffs’ argument that sexual orientation should be considered a suspect or quasi-suspect class by applying a multi-factor test cobbled from the Supreme Court’s prior equal protection precedent.39 Judge Spiegel framed the relevant questions as follows:

38. Equality Found., 860 F. Supp. at 426–27. 39. See id. at 434–35 (citing Frontiero v. Richardson, 411 U.S. 677 (1973); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976); San Antonio School Ind. Dist. v. Rodriguez, 411 U.S. 1 (1973); Plyler v. Doe, 457 U.S. 202 (1982)).

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(1) Whether an individual’s sexual orientation bears any relationship to his or her ability to perform, or to participate in, or contribute to, society; (2) whether the members of the group have any control over their sexual orientation; (3) whether sexual orientation is an immutable characteristic; (4) whether that group has suffered a history of discrimination based on their sexual orientation; and (5) whether the class is “politically powerless.”40 The Judge began with question four. There was no doubt, he wrote, that “gays, lesbians, and bisexuals have suffered a history of invidious discrimination based on their sexual orientation.”41 Next, he ruled that no sexual orientation, whether heterosexual, homosexual, or any other, bears any relation to a person’s ability to contribute to society.42 He also found that sexual orientation was beyond the control of the individual, and noted that there “is a broad distinction between sexual orientation, and sexual conduct.”43 Finally, Judge Spiegel found that, though “not a wholly politically powerless group,” gays and lesbians “do suffer significant political impediments.”44 With each factor satisfied, the court concluded that sexual orientation should be given quasi-suspect status. Nevertheless, the court ruled that “Issue 3 is unconstitutional under even the most deferential standard of review, let alone the most exacting,” and struck down the discriminatory charter amendment.45 Though pathbreaking in the Sixth Circuit, Judge Spiegel was not the first to conclude that laws aimed at gays and lesbians targeted a suspect class and therefore deserved heightened scrutiny. At least two district courts had previously made similar rulings despite Bowers.46 40. Equality Found., 860 F. Supp. at 436. 41. Id. 42. See id. at 437. 43. Id. 44. Id. 45. Id. at 444. 46. See Ben-Shalom v. Marsh, 703 F. Supp. 1372, 1379 (E.D. Wis. 1989), rev’d, 881 F.2d 454 (7th Cir.); see also High Tech Gays v. Defense Indus. Sec. Clearance Office, 668 F. Supp. 1361 (N.D. Cal. 1987), rev’d in part, vacated in part, 895 F.2d 563 (9th Cir. 1990). In other post-Bowers/pre-Equality Foundation cases, district courts had declined to assign suspect class status to sexual orientation

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However, Spiegel acknowledged that, above the district courts, “numerous Courts of Appeals” had considered the question “and all have decided in the negative.”47 Bowers had already taken hold across the country. Indeed, by the summer of 1994, six circuits had ruled contrary to Judge Spiegel, with most relying on the logic from Bowers that “homosexuality” was defined by behavior, not by status or orientation.48 Because homosexual behavior could be constitutionally proscribed, and because behavior was irrelevant to other classifications such as race or gender, gays and lesbians simply could not constitute any kind of suspect class. For its part, the Sixth Circuit had not yet confronted the issue.49 Judge Spiegel’s ruling in Equality Foundation now provided an opportunity for it to do so. B. Equality Foundation I: The First Appeal The City of Cincinnati, joined by the intervening ERNSR, quickly appealed to the Sixth Circuit.50 The panel assigned to the

but nevertheless held actions targeting gays and lesbians to fail rational basis scrutiny. See Jantz v. Muci, 759 F. Supp. 1543, 1552 (D. Kan. 1991), rev’d, 976 F.2d 623 (10th Cir. 1995); see also Swift v. United States, 649 F. Supp. 596, 602 (D.D.C. 1986). 47. Equality Found., 860 F. Supp. at 439. 48. See High Tech Gays v. Defense Indus. Sec. Clearance Office., 895 F.2d 563, 571–72 n.6, 573 –74 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464–65 (7th Cir. 1989), cert. denied sub nom. Ben-Shalom v. Stone, 494 U.S. 1004 (1990); Padula v. Webster, 822 F.2d 97, 102 (D.C. Cir. 1987) (“[I]t would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause.”) (citations omitted). Two circuits had ruled against suspect class status prior to Bowers. See Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc); National Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984), aff’d by an equally divided court, 470 U.S. 903 (1985) (per curiam). 49. See Equality Found., 860 F. Supp. at 439 (acknowledging that, while “numerous Courts of Appeals have ruled on the issue of whether sexual orientation should be accorded suspect or quasi-suspect status,” the court is able to–and decides to–decline to follow their reasoning); see also Arthur S. Leonard, Exorcizing the Ghosts of Bowers v. Hardwick: Uprooting Invalid Precedents, 84 CHI.-KENT L. REV. 519, 533 (2009) (analyzing the varying decisions of the different Circuit Courts of Appeals between Bowers and Lawrence and referencing Equality Found. as the case of note in the Sixth Circuit).

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case consisted of Judges Robert Krupansky, Alan Norris, and Cornelia Kennedy.51 On May 12, 1995, the panel unanimously reversed Judge Spiegel’s “novel” decision because it “misconstrued Bowers v. Hardwick.”52 In so doing, the lower court had incorrectly interpreted sexual orientation as status-based rather than behaviorbased. In fact, the Sixth Circuit said, “persons having a homosexual ‘orientation’ simply do not . . . comprise an identifiable class.” 53 No class status could apply to a group “not identifiable ‘on sight,’” especially because many gays and lesbians “successfully conceal their orientation.”54 “Those persons who fall within the orbit of legislation concerning sexual orientation are so affected not because of their orientation but rather by their conduct which identifies them

50. See Equality Found. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) (hereinafter “Equality Found. I”). 51. Judge Krupansky was initially appointed to the District court by Richard Nixon. Danny Boggs, 2006 ANNUAL REPORT 122, http://www.ca6.uscourts.gov/internet/circuit_executive/annual_rpt/2006AnnualRep ort.pdf. Judges Krupansky and Norris were both appointed to the Sixth Circuit by Ronald Reagan. David W. Dunlap, Court Upholds Anti-Homosexual Initiative, N.Y. TIMES (May 14, 1995), http://www.nytimes.com/1995/05/14/us/courtupholds-anti-homosexual-initiative.html). Judge Kennedy was elevated from district judge to circuit judge by Jimmy Carter. Id. But Nixon originally appointed her to the Eastern District of Michigan. See Cornelia G. Kennedy, AMERICAN BAR, http://www.americanbar.org/content/dam/aba/directories/women_trailblazers/kenne dy_bio.authcheckdam.pdf. And she was on Ronald Reagan’s shortlist to replace Supreme Court Justice Potter Stewart in 1981. Steven R. Weisman, Reagan Nominating Woman, an Arizona Appeals Judge, to Serve on Supreme Court, N.Y. TIMES (July 8, 1981), http://www.nytimes.com/1981/07/08/us/reagan-nominatingwoman-an-arizona-appeals-judge-to-serve-on.html?pagewanted=all. Sandra Day O’Connor ultimately took Potter’s seat. Hannah Hayes, Sandra Day O’Connor: The Center Vote That Counted, 14 PERSP. MAG., 2005, at 2, http://www.americanbar.org/content/dam/aba/publishing/perspectives_magazine/w omen_perspectives_SandraDayOconnorFall2005.authcheckdam.pdf. 52. Equality Found. I, 54 F.3d at 266 (“Since Bowers, every circuit court which has addressed the issue has decreed that homosexuals are entitled to no special constitutional protection, as either a suspect or a quasi-suspect class, because the conduct which places them in that class is not constitutionally protected.”). 53. Id. at 267. 54. Id. The court did not acknowledge that the reason gays and lesbians regularly concealed their orientation was to “avoid arrest and incarceration” for violating anti-sodomy laws like the one upheld by Bowers. CRAIG M. LOFTIN, LETTERS TO ONE: GAY AND LESBIAN VOICES FROM THE 1950S AND 1960S 10 (2012).

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as homosexual, bisexual, or heterosexual.”55 A status-based consideration was totally impossible, according to the court, because “it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct.”56 The court then summarily slammed shut the door on heightened scrutiny, in no uncertain terms: “Therefore, Bowers v. Hardwick and its progeny command that, as a matter of law, gays, lesbians, and bisexuals cannot constitute either a ‘suspect class’ or a ‘quasi-suspect class,’ and, accordingly, the district court’s application of the intermediate heightened scrutiny standard to the constitutional analysis of the Amendment was erroneous.”57 With heightened scrutiny foreclosed by Bowers, the Sixth Circuit sought a “rational relationship” between the charter amendment and the city government’s reasons for it. The court held that Issue 3 “furthered a litany of valid community interests,” including municipal neutrality, “cost savings for the City’s taxpayers,” and the elimination of “exposure to the punishment mandated by the Human Rights Ordinance against certain persons who elected to disassociate themselves from homosexuals.”58 The Sixth Circuit was now firmly in line with its sister circuits, construing Bowers to foreclose suspect class analysis and prevent heightened scrutiny for laws targeting gays and lesbians. Sexual orientation could not be a suspect classification because orientation was behavior-based, not a visibly identifiable characteristic like race or gender. The prevailing interpretation of Bowers had made it clear: if the government could constitutionally prohibit certain sexual behaviors, laws targeting perpetrators of those behaviors required nothing more than rational basis scrutiny. Issue 3 was thus back in action. But despite this overwhelming consensus against them, the U.S. Supreme Court would give the gay 55. Equality Found. I, 54 F.3d at 267 (emphasis in the original). 56. Id. (emphasis in the original). The court went even further, with a footnote entertaining the possibility that homosexuality as a class could be defined by status rather than conduct, but rejected the idea regardless because Issue 3 “removes previously legislated special protection against discrimination,” rather than impose a “punishment or disability” on gays and lesbians. Id. at 267 n.4 (emphasis in the original). 57. Id. at 268. 58. Id. at 270.

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and lesbian plaintiffs in Equality Foundation one more chance to defeat it. C. Equality Foundation I: Vacated and Remanded In November of 1992, a year before Cincinnati adopted Issue 3 and the Equality Foundation litigation began, Colorado voters approved Amendment 2 to their state constitution.59 Similar to Issue 3, Colorado Amendment 2 declared that there would be “no protected status-based on homosexual, lesbian, or bisexual orientation” in the state.60 A group of plaintiffs led by Richard Evans challenged the law under both the Constitution of Colorado as well as the Federal Constitution’s First and Fourteenth Amendments.61 After bouncing between the trial court and the Supreme Court of Colorado over the next three years, Amendment 2 was permanently enjoined as a violation of “the fundamental right to participate equally in the political process” under the Fourteenth Amendment.62 Then, in February of 1995, while Equality Foundation was still before the Sixth Circuit, Romer v. Evans reached the U.S. Supreme Court on petition for writ of certiorari by the Colorado governor, who had lost below.63 It was assigned for argument at the start of the next term in October of that year. By May of 1995, the Sixth Circuit had ruled in Equality Foundation, but the subsequent certiorari petition was neither granted nor denied as Romer proceeded to oral argument. A year later, in May of 1996, the Supreme Court struck down Colorado Amendment 2 as a violation of the Fourteenth Amendment 59. Evans v. Romer, 854 P.2d 1270, 1272 (Colo. 1993). 60. Id. The full text went further: “Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.” 61. Id. at 1272–73. 62. Evans v. Romer, 882 P.2d 1335, 1339 (Colo. 1994). The Colorado Supreme Court included an extensive footnote citing the Equality Foundation district court decisions and cited favorably the conclusion that legislation precluding protected status for sexual orientation was an interference with the political process. The Evans court declined to declare sexual orientation to be a suspect class, however. See id. at 1341 n.4. 63. Romer v. Evans, 517 U.S. 620 (1996).

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because it imposed “a broad and undifferentiated disability on a single named group” and was “inexplicable by anything but animus toward the class it affects.”64 The amendment could thus not survive even rational basis scrutiny because animus is not a legitimate government purpose, let alone a compelling one. Romer did not, however, apply (or even mention) the multi-factor suspect class test from City of Cleburne v. Cleburne Living, nor did it assign suspect or quasi-suspect class status to gay people as a group or to sexual orientation in general. It also did not overrule Bowers. In fact, the majority opinion, written by Justice Anthony Kennedy, contained no mention of Bowers at all. Justice Scalia’s dissent, however, noted Bowers’s glaring absence and argued that it provided an obvious and contrary answer to the question of government interests in Romer: I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment—for the prohibition of special protection for homosexuals. It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court’s opinion: In Bowers v. Hardwick . . . we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years—making homosexual conduct a crime . . . . If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.65 This argument was an affirmation of all the circuits that had, based on Bowers, rejected suspect-class analysis and applied minimal rational basis scrutiny to laws and military rules targeting gays and lesbians.66 To illustrate his point, Justice Scalia cited several lower court cases including the Sixth Circuit’s Equality Foundation ruling from the year before.67 To Justice Scalia, Bowers constitutionally 64. Id. at 632. 65. Id. at 640–641 (Scalia, J., dissenting) (internal citations omitted). 66. See supra notes 46 and 48. 67. Romer, 517 U.S. at 641 (“Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater-includes-the-lesser rationale cannot justify Amendment 2’s

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insulated Colorado’s Amendment 2 as it had Cincinnati’s Issue 3: “If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual ‘orientation’ is an acceptable stand-in for homosexual conduct.”68 Finally, with Romer decided and the 1995–1996 term winding down, the Supreme Court took up the Equality Foundation certiorari petition, issuing a short grants, vacates, remands (GVR) opinion, granting the petition, vacating the decision below, and remanding the case back to the Sixth Circuit “for further consideration in light of Romer v. Evans.”69 D. Equality Foundation II: On Remand With their previous ruling vacated and remanded, Judges Krupansky, Kennedy, and Norris took another look at Issue 3, this time through the lens of Romer.70 However, the result was the same. Despite getting a second chance, the gay and lesbian plaintiffs again fell short. Judge Krupansky, writing for another unanimous panel, decisively distinguished the facts and scope of Romer from Cincinnati Issue 3.71 As Justice Scalia had in his dissent to the GVR application to individuals who do not engage in homosexual acts, but are merely of homosexual ‘orientation.’ Some Courts of Appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference. See Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d 261, 267 ([6th Cir.] 1995) (‘For purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct.’).”). 68. Romer, 517 U.S. at 642. 69. Equality Found. v. City of Cincinnati, 518 U.S. 1001 (1996). The Romer dissenters, again led by Justice Scalia, dissented to this opinion as well. Distinguishing Issue 3 as “a determination by what appears to be the lowest electoral subunit,” “the consequence of holding [Cincinnati Issue 3] unconstitutional would be that nowhere in the country may the people decide, in democratic fashion, not to accord special protection to homosexuals.” Therefore, Justice Scalia wrote, “I would deny certiorari in this case, or else set the case for argument to decide for ourselves the ultra-Romer issue that it presents.” Id. (Scalia, J., dissenting). 70. Equality Found. v. City of Cincinnati, 128 F.3d 289, 291 (6th Cir. 1997) (hereinafter “Equality Found. II”). 71. Id. at 296 (“[T]he language of the Cincinnati Charter Amendment, read in its full context, merely prevented homosexuals, as homosexuals, from obtaining

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order in Equality Foundation I, the Sixth Circuit focused on the differences between a city charter and a state constitutional amendment.72 Because Romer included no mention of suspect class or its associated factors, the panel in Equality Foundation II took no effort to seriously reconsider their prior rejection of that analysis. Discussion of how suspect class status triggers heightened scrutiny was relegated to a footnote.73 The new decision summarily reaffirmed the court’s previous holding that, “under Bowers . . . and its progeny, homosexuals [do] not constitute either a ‘suspect class’ or a ‘quasi-suspect class’ because the conduct which [defines] them as homosexuals [is] constitutionally proscribable.”74 As far as the Sixth Circuit was concerned, Romer did not disrupt this status quo.75 special privileges and preferences (such as affirmative action preferences or the legally sanctioned power to force employers, landlords, and merchants to transact business with them) from the City. In stark contrast, Colorado Amendment 2’s far broader language could be construed to exclude homosexuals from the protection of every Colorado state law, including laws generally applicable to all other Coloradans, thus rendering gay people without recourse to any state authority at any level of government for any type of victimization or abuse which they might suffer by either private or public actors.”). 72. Id. at 296–97. 73. Id. at 292 n.1. 74. Id. at 292, 293 n.2 (internal citations omitted). Footnote 2 again cites to the other circuit decisions (see supra note 48) upholding the Bowers-based conclusion that suspect-class status should be denied to sexual orientation because “homosexual conduct may constitutionally be criminalized.” Id. 75. The panel in Equality Foundation II used a fairly unique interpretation of Romer to distinguish it:

Although the Romer Court never rejected associational liberty and the expression of community moral disapproval of homosexuality as rational bases supporting an enactment denying privileged treatment to homosexuals, it concluded that under the facts and circumstances of Romer, the state’s argument in support of Colorado Amendment 2 was not credible. Because the valid interests of the Cincinnati electorate in conserving public and private financial resources is, standing alone, of sufficient weight to justify the City’s Charter Amendment under a rational basis analysis, discussion of equally justifiable community interests, including the application of associational liberty and community moral disapproval of

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The Equality Foundation plaintiffs sought rehearing en banc, but that request was rejected in early 1998.76 This time the Supreme Court denied certiorari, declining to give the plaintiffs a third chance to vindicate Judge Spiegel’s original opinion.77 Justice John Paul Stevens wrote a brief adjoining opinion “respecting the denial of the petition” (joined by Justices David Souter and Ruth Bader Ginsburg) and clarified that the denial was “not a ruling on the merits,” but instead reflected “nothing more than a conclusion that a particular case may not constitute an appropriate forum in which to decide a significant issue.”78 Thus, by the middle of 1998, a broad reading of Bowers v. Hardwick had foreclosed the possibility that sexual orientation could constitute a suspect or quasi-suspect classification in nine of the thirteen federal circuits. Further, the Supreme Court, given a good opportunity to confront this interpretive trend, had summarily dodged Bowers and the question of suspect class completely. The Court would not dodge Bowers a second time. Five years after Romer, they would confront it head-on. II. RUMORS OF BOWERS’S DEATH ARE GREATLY EXAGGERATED A. Lawrence v. Texas In the late summer of 1998, police in Houston, Texas, were called to the home of John Lawrence.79 Robert Eubanks, an ex-lover of Lawrence, claimed that a third man, Tyron Garner, was acting homosexuality, is unnecessary to sustain the Charter Amendment’s viability. Id. at 300–01. 76. Equality Found. v. City of Cincinnati, 1998 U.S. App. LEXIS 1765, at *9 (6th Cir. 1998) (en banc). Six judges, led by Judge Ronald Gilman, dissented, arguing that the opinion conflicted with Romer. Id. Judge Martha Craig Daughtrey, who would later dissent in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) (the precursor to Obergefell v. Hodges), was among that six. Id. 77. Equality Found. v. City of Cincinnati, 525 U.S. 943 (1998), cert. denied, 128 F.3d 289 (1998). 78. Id. (“[T]he confusion over the proper construction of the city charter counsels against granting the petition for certiorari. The Court’s action today should not be interpreted either as an independent construction of the charter or as an expression of its views about the underlying issues that the parties have debated at length.”). 79. Lawrence v. State, 41 S.W.3d 349, 350 (Tex. Crim. App. 2001).

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disorderly inside the home and had a gun.80 According to police, they found Garner and Lawrence inside having sex and arrested them for violating Chapter 21, Section 21.06 of the Texas Penal Code, which prohibited “deviate sexual intercourse with another individual of the same sex.”81 After being fined two hundred dollars each, Lawrence and Garner filed a state court challenge to the constitutionality of the Texas sodomy law in the Court of Appeals of Texas.82 They argued that the law violated state and federal equal protection guarantees by discriminating against gays and lesbians.83 A three-judge panel agreed with them and held the law unconstitutional, but that opinion was later reversed and withdrawn without oral argument by the whole court sitting en banc.84 In its en banc opinion, the full Court of Appeals of Texas found that the statute was “expressly directed at conduct,” not any particular group of people, and was thus facially neutral.85 However, as the plaintiffs pointed out, the statute specifically prohibited samesex intercourse but not different-sex intercourse.86 Lawrence and Garner argued that this indicated a purposeful hostility toward gays and lesbians87 and thus warranted heightened judicial scrutiny. Not so, said the Texas court, and it declined to apply heightened scrutiny. It concluded that rational relationship scrutiny was appropriate because neither Texas courts nor the U.S. Supreme Court had ever found sexual orientation to be a suspect class.88 In a footnote, the court also observed that “no federal court of appeals has ever applied heightened scrutiny when considering equal protection claims in the context of sexual orientation,” citing the same cases from the Ninth, Seventh, Federal, and D.C. Circuits that the Sixth 80. Douglas Martin, Tyron Garner, 39, Plaintiff in Sodomy Case, N.Y. TIMES (Sept. 14, 2006), http://query.nytimes.com/gst/fullpage.html?res=9E03EFDE1231 F937A2575AC0A9609C8B63. 81. Lawrence, 41 S.W.3d at 350. 82. Id. 83. Id. at 353. 84. Lawrence v. State, 2001 Tex. App. LEXIS 1776 (Tex. App. 2001). Justice John S. Anderson and Chief Justice Paul Murphy, the two judges in the majority of the initial panel, were the only dissenters to the subsequent en banc decision. Lawrence, 41 S.W.3d at 350. 85. Lawrence, 41 S.W.3d at 353. 86. Id. 87. Id. 88. Id. at 353–54.

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Circuit had cited approvingly in Equality Foundation I.89 All of these cases relied on Bowers v. Hardwick to foreclose suspect-class analysis and heightened scrutiny in challenges to anti-gay laws. After distinguishing Romer v. Evans, the Texas court then held that the anti-sodomy statute “advances a legitimate state interest and is rationally related thereto, namely, preserving public morals.”90 Thus the law, as a traditional exercise of the police power, was not unconstitutional on the basis of sexual orientation discrimination, or as a privacy violation.91 Lawrence and Garner then turned to the U.S. Supreme Court, which granted certiorari in December of 2002 after their motion for discretionary review was rejected by the Texas Court of Criminal Appeals.92 The Supreme Court posed two related constitutional questions and one bonus question: (1) Whether Lawrence and Garner’s convictions under Texas’s sodomy law violate the Fourteenth Amendment’s guarantee of equal protection; (2) whether

89. Id. at 354 n.8. (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) (all holding that homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes)). 90. Lawrence, 41 S.W.3d at 357. 91. See id. at 360. Lawrence and Garner also argued that their private, consensual sexual activity was constitutionally immune from criminal punishment. According to the Court, Bowers put this contention to bed:

[W]e find homosexual conduct is not a right that is “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition.” In America, homosexual conduct was classified as a felony offense from the time of early colonization. In fact, there was such unanimity of condemnation that sodomy was, before 1961, a criminal offense in all fifty states and the District of Columbia. Bowers v. Hardwick, 478 U.S. at 193. In Texas, homosexual conduct has been a criminal offense for well over a century. Lawrence, 41 S.W.3d at 361. 92. Lawrence v. Texas, 537 U.S. 1044 (2002).

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their convictions violate the Due Process Clause of the Fourteenth Amendment; and (3) whether Bowers v. Hardwick be overruled.93 Oral argument was heard on March 26, 2003. Paul Smith argued the case on behalf of the petitioners Lawrence and Garner.94 In response to Chief Justice William Rehnquist’s first question on the issue of substantive due process, Smith attacked Bowers directly. “[O]ne of the errors that I think the Court made in Bowers v. Hardwick,” Smith said, “was only looking at the issue in terms of homosexual sodomy and not looking at the issue in general terms, which is the right of everyone to decide for themselves about consensual private sexual intimacy.”95 In its majority opinion, written by Justice Kennedy, the Supreme Court agreed.96 The constitutionality of criminal laws against consensual anal or oral intercourse was not a question of a right to perform specific sex acts, but “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.”97 Reframing the question that way made it “necessary to reconsider the Court’s holding in Bowers.”98 “To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”99 The Court relied heavily on cases dealing with reproductive freedom, such as Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population.100 Those cases predated Bowers but had little impact on Justice White’s reasoning at the time that recognized a right to freedom from “unwanted governmental intrusion into matters so fundamentally affecting a person,” such as the decision to have 93. Brief for Petitioners at i, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02102). 94. Transcript of Oral Argument at 1, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102), www.supremecourt.gov/oral_arguments/argument_transcripts/02102.pdf. 95. Id. at 2:54. 96. Lawrence, 539 U.S. at 558. 97. Id. at 564. 98. Id. 99. Id. at 567. 100. Id. at 564–66 (citing Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Carey v. Population Servs. Int’l, 431 U.S. 678 (1977)).

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sex and reproduce.101 In addition, the Court relied on two postBowers cases, which compelled the conclusions that intimate choices regarding sexuality and reproduction were liberty interests, and laws targeting specific groups on moral grounds alone cannot survive constitutional attack.102 The Court declared, “[t]he foundations of Bowers have sustained serious erosion” from those cases.103 Justice Kennedy then dropped the executioner’s axe, stating in his opinion that “[t]he rationale of Bowers does not withstand careful analysis.”104 According to Justice Kennedy, Justice John Paul Stevens’s dissenting opinion in Bowers, which rejected history as a viable defense for discrimination, affirmed intimate liberty. Thus, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”105 That should have been the end for Bowers, but eliminating an overruled case from the law is not an easy task. Supreme Court cases take on lives of their own in the circuits, as federal appellate judges continually interpret and apply those rules and rationales to new and different fact patterns that come before them. Then those subsequent circuit decisions exert precedential power of their own over later circuit appeals. For example, many years may pass between a Supreme Court decision and that decision being overruled. During that time span, the overruled decision may have guided circuit courts in dozens of cases, with each subsequent panel citing to the panel before it, rather than to the original Supreme Court decision upon which the line of holdings was founded. Overruling the original decision does not specifically reverse the subsequent circuit holdings applying the same principles, so the original decision lives on despite being struck down. Such is the case with Bowers, especially in the Sixth Circuit, as discussed below. B. Scarbrough v. Morgan County Board of Education Paul Scarbrough was elected superintendent for the Morgan County, Tennessee School District in 1996.106 When his position was 101. 102. 103. 104. 105. 106. 2006).

Lawrence, 539 U.S. at 565 (citing Eisenstadt, 405 U.S. at 453). Lawrence, 539 U.S. at 573–74. Id. at 576. Id. at 577. Id. at 578. Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 253 (6th Cir.

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eliminated in 2000, he sought appointment as the new Director of Schools.107 After a newspaper incorrectly reported that he was scheduled to speak at a church with a predominantly gay and lesbian congregation, another candidate was chosen over him.108 He sued the school district under the First and Fourteenth Amendments.109 For the latter, he argued that he was treated differently than other applicants based upon animus toward gays and lesbians.110 The district court granted summary judgment to the defendants on all counts.111 However, on appeal in 2006, the Sixth Circuit reconsidered Scarbrough’s First Amendment claims and reversed summary judgment on some of them.112 For his equal protection claim under the Fourteenth Amendment, the Sixth Circuit first dismissed his argument that he was entitled to any kind of heightened scrutiny because the board and its members had not infringed “a class of people’s fundamental rights.”113 That is, the board had acted only against Scarbrough as an applicant, not against any particular group of people as a whole.114 At any rate, “Scarbrough’s right to associate [was] adequately protected by the First Amendment.”115 But more importantly, the court rejected heightened scrutiny for Scarbrough’s equal protection claims because he was “not a member of a protected class.”116 Relying only on Equality Foundation II, the court said, “[i]nasmuch as homosexuality is not a suspect class in this circuit, we cannot hold that persons who associate with homosexuals constitute a suspect class.”117 The court conducted no further analysis, and made no mention at all of Lawrence, which was

107. Id. 108. Id. at 253–54. 109. Id. at 254. 110. Id. at 255. 111. Id. 112. Id. at 263. 113. Id. at 260. 114. See id. at 261 (The court also acknowledged that equal protection claims can be viable for a “class of one” under Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), but summarily declined to “extend the fundamental rights analysis to classes of one. To so extend the fundamental rights analysis would allow the Equal Protection Clause to render other constitutional provisions superfluous.”). 115. Scarbrough, 470 F.3d at 261. 116. Id. 117. Id.

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decided three years before.118 Thus, in Scarbrough, a unanimous Sixth Circuit panel summarily upheld circuit precedent whose reasoning relied totally on Bowers v. Hardwick, despite having been overruled by the Supreme Court three years prior.119 This was the same kind of “blind imitation” Justice Blackmun had warned against in his Bowers dissent.120 Even worse, the Sixth Circuit was not alone. Between 2003 and 2012, five other circuits upheld and applied precedent based on the reasoning of Bowers to foreclose suspect class analysis and heightened scrutiny where gays and lesbians had been targeted by government action.121 For example, in a 2004 case concerning prison conditions, the Fifth Circuit reversed and remanded the dismissal of a gay inmate’s claim of unfair treatment after applying rational basis scrutiny. The court briefly noted that “[n]either the Supreme Court nor this court has recognized sexual orientation as a suspect classification [or protected group].”122 The court cited no relevant case law other than Romer.123 That same year, the Eleventh Circuit heard a challenge to Florida’s law prohibiting adoption by “practicing homosexuals.”124 Unlike the Fifth Circuit, the Eleventh Circuit at least acknowledged the existence of Lawrence v. Texas, but distinguished it to reject the plaintiff couples’ argument that the ban on gay adoption infringed their right to private sexual intimacy.125 However, there was no mention of Lawrence when the court dispatched plaintiffs’ demand for heightened scrutiny under the Fourteenth Amendment. There was no fundamental right at stake, and the court stated that “all of our sister circuits that have considered the question have declined to treat

118. See generally id. at 250. 119. Id. at 263–64. 120. Bowers v. Hardwick, 478 U.S. 186 (1986) (Blackmun, J., dissenting) (quoting Lochner v. New York, 198 U.S. 45, 76 (1905)). 121. See Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 808 (11th Cir. 2004); Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006); Cook v. Gates, 528 F.3d 42, 47 (1st Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1105 (10th Cir. 2008). 122. Johnson, 385 F.3d at 532. 123. Id. 124. Lofton, 358 F.3d at 808. 125. Id. at 815–17.

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homosexuals as a suspect class.”126 The court unanimously upheld the Florida law.127 In 2006, the same year as Scarbrough, the Eighth Circuit heard a challenge to Nebraska’s prohibition of gay marriage.128 The plaintiffs argued that the ban should be viewed with heightened scrutiny partially on the basis that sexual orientation was a suspect classification.129 The court said no, because “the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes.”130 The court then applied rational basis scrutiny and unanimously upheld the gay marriage ban.131 Then, in 2008, both the First and the Tenth circuits joined this post-Lawrence, pro-Bowers consensus. In Cook v. Gates, twelve former members of the United States military sued the Department of Defense, alleging that its anti-gay “Don’t Ask, Don’t Tell” policy violated their due process, equal protection, and free speech rights.132 The plaintiffs sought heightened scrutiny partially on the basis that gay members of the military constituted a suspect class.133 The First Circuit rejected this argument.134 First, the court distinguished Romer and cited Bowers-affirming cases from other circuits in support.135 Then, the court distinguished Lawrence because the Supreme Court had the opportunity to conduct an equal protection suspect classification analysis but ruled on other grounds.136 Thus, the 126. Id. at 818. 127. Id. at 827. 128. Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006); see also id. The district court had struck down the ban as unconstitutional under the Fourteenth and First Amendments, but the Eighth Circuit upheld the state law as constitutional. 129. See Citizens for Equal Prot., 455 F.3d at 865. 130. Id. at 866. 131. Id. at 871. 132. Cook v. Gates, 528 F.3d 42, 47 (1st Cir. 2008). 133. See id. at 61. 134. Id. 135. Id. at 61–62 (“Romer nowhere suggested that the Court recognized a new suspect class. Absent additional guidance from the Supreme Court, we join our sister circuits in declining to read Romer as recognizing homosexuals as a suspect class for equal protection purposes.”) (citations omitted). 136. Id. at 61 (“Lawrence does not alter this conclusion. As discussed earlier, Lawrence was a substantive due process decision that recognized a right in all adults, regardless of sexual orientation, to engage in certain intimate conduct. Indeed, the Lawrence Court explicitly declined to base its ruling on equal protection principles, even though that issue was presented. Thus there is no basis

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plaintiffs’ equal protection arguments were dismissed “because homosexuals are not a suspect class and the legitimate interests Congress put forward are rationally served by [Don’t Ask Don’t Tell].”137 In Price-Cornelison v. Brooks, a lesbian woman accused an Oklahoma police officer of violating her constitutional rights by refusing to enforce a protective order she had taken out against her female partner.138 In deciding to apply rational basis scrutiny, the Tenth Circuit noted that her “claim . . . does [not] implicate a protected class, which would warrant heightened scrutiny.”139 The court then provided a lengthy footnote, favorably citing to eleven cases in which suspect class status was denied to sexual orientation either directly or indirectly on the basis of Bowers, including Scarbrough v. Morgan, Woodward v. United States, Padula v. Webster, and others discussed previously in this article.140 Perplexingly, the court did not even need to do so because the plaintiff did not reassert a suspect class claim on appeal.141 So the Tenth Circuit, five years after Lawrence, reaffirmed, sua sponte, the reasoning of Bowers. The imitation in this case seemed not just blind but purposeful. C. Davis v. Prison Health Services The Sixth Circuit would soon get a new opportunity to buck the persistent trend of reaffirming Bowers despite its overrule. In 2010, Michigan prison inmate, Ricky Davis, was terminated from his employment on a public-works crew.142 He sued the state Prison Health Services agency along with several prison officials, pro se, alleging he was fired for being gay.143 The district court dismissed his claims. In his relatively brief analysis, District Judge Robert H. Bell noted that not only was prison incarceration not a suspect

for arguing that Lawrence changed the standard of review applicable to a legislative classification based on sexual orientation.”). 137. Id. at 62. 138. Price-Cornelison v. Brooks, 524 F.3d 1103, 1105 (10th Cir. 2008). 139. Id. at 1113. 140. Id. at 1113 n.9. 141. Id. 142. Davis v. Prison Health Servs., 2010 U.S. Dist. LEXIS 127890, at *1–2 (W.D. Mich. Dec. 3, 2010), rev’d, 679 F.3d 433 (6th Cir. 2012). 143. Id. at *1–2, 4.

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classification, but based on Scarbrough, “[l]ikewise, homosexuals are not a suspect class.”144 With the help of the American Civil Liberties Union, Davis appealed to the Sixth Circuit.145 He argued that his equal protection claim should not have been dismissed.146 Unanimously, the panel agreed with him and reversed the district court, holding that “Davis has alleged facts that, taken as true, state a plausible claim that the defendants removed him from the public-works program because of an anti-gay animus.”147 But the court applied rational basis scrutiny, not a heightened form of it”[b]ecause this court has not recognized sexual orientation as a suspect classification.”148 In its decision, a unanimous Sixth Circuit panel (including Judge Jeffrey Sutton),149 cited only to Scarbrough, while failing to consider its place in the legacy of Bowers and the overruling effect of Lawrence v. Texas. III. WINDSOR: A SWORD BUT NOT A SCALPEL A. United States v. Windsor The Defense of Marriage Act (“DOMA”) was signed into federal law by President William Clinton in 1996 as the culmination of a conservative backlash to the 1993 Hawaii Supreme Court decision in Baehr v. Lewin, requiring the defenders of that state’s same-sex marriage ban to overcome strict scrutiny.150 Section 3 of DOMA barred same-sex couples from “spouse” recognition, regardless of their status under state law, therefore disqualifying them from a wide array of federal benefits.151

144. Id. at *8. 145. Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012). 146. Id. 147. Id. at 438. 148. Id. 149. Jeffrey S. Sutton was appointed to the Sixth Circuit by George W. Bush in 2003. History of the Federal Judiciary, FED. JUD. CTR., http://www.fjc.gov/servlet/ nGetInfo?jid=3010 (last visited Mar. 20, 2016). 150. Baehr v. Lewin, 74 Haw. 530, 580 (1993). 151. 1 U.S.C.A. § 7 (Westlaw 2016) (“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”).

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Edith Windsor, a New York resident, filed suit in federal court in 2010, challenging the constitutionality of DOMA Section 3 under the Due Process Clause and Equal Protection Clause of the Fifth Amendment after the death of her spouse, Thea Spyer.152 She sought a six-figure federal tax refund.153 Judge Barbara Jones of the Southern District of New York granted summary judgment in Windsor’s favor, finding no rational basis for DOMA’s denial of spousal status to same-sex couples.154 On appeal, the Second Circuit went further. Whereas the lower court dodged the question of heightened scrutiny because rational basis was enough to defeat DOMA, the court of appeals took the opposite approach. It applied heightened scrutiny instead. “Fortunately, no permutation of rational basis review is needed if heightened scrutiny is available, as it is in this case.”155 Applying a four-factor test derived mostly from Cleburne and Bowen v. Gilliard, the Second Circuit found that homosexuals constituted a quasisuspect class that justified heightened (though not the “most exacting”156) scrutiny.157 Thus, twenty-six years after Bowers v. Hardwick and nine years after Lawrence v. Texas, the Second Circuit became the first Federal Court of Appeals to consider the suspect classification factors and reach the conclusion that statutes, amendments, and other legislative 152. Windsor v. United States, 699 F.3d 169, 175 (2d Cir. 2012). 153. Id. 154. Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) (“Though there is no case law in the Second Circuit binding the Court to the rational basis standard in this context, the Court is not without guidance on the matter. For one, as the Supreme Court has observed, ‘courts have been very reluctant, as they should be in our federal system,’ to create new suspect classes. Moreover, the Supreme Court ‘conspicuously’ has not designated homosexuals as a suspect class, even though it has had the opportunity to do so. Against this backdrop, this district court is not inclined to do so now. In any event, because the Court believes that the constitutional question presented here may be disposed of under a rational basis review, it need not decide today whether homosexuals are a suspect class.”) (internal citations omitted). 155. Windsor, 699 F.3d at 181. 156. Id. at 186. 157. Id. at 181–82 (“In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”).

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acts targeting gays and lesbians deserved heightened scrutiny. Of course, the circuit panel in Windsor had more freedom than most of its sister circuits to do so. It was not constrained by contrary precedent.158 Whereas some, like the Ninth, D.C., and Federal circuits, had over two decades of precedent (based on Bowers) totally foreclosing the suspect classification analysis, the Second Circuit was one of few circuits that had never before considered the issue. Bucking the national trend, in Windsor the Second Circuit actually cited Bowers as indicative of a history of discrimination faced by gays and lesbians, rather than as a reason to deny them heightened scrutiny.159 The Bipartisan Legal Advisory Group (BLAG), standing in for the Department of Justice (which had declined to defend DOMA), sought review of the Second Circuit’s decision. The Supreme Court granted certiorari on December 7, 2012 to decide whether DOMA Section 3 was unconstitutional under the Fifth Amendment.160 On brief, BLAG argued that rational basis was the appropriate form of scrutiny, because the Supreme Court “has never classified sexual orientation as a suspect or quasi-suspect class, and indeed has gone out of its way to apply rational basis review” in past cases such as Lawrence and Romer.161 To the contrary, Edith Windsor argued that the Second Circuit was right to apply a multi-factor test and to conclude that sexual orientation was, at least, a quasi-suspect class, justifying heightened scrutiny.162 Thus, the issue was squarely placed before the Supreme Court. BLAG won the battle but lost the war. Justice Kennedy, writing for a bitterly divided 5-4 court, applied rational basis scrutiny (in effect if not in word) and struck down DOMA as motivated by 158. Windsor, 699 F.3d at 181. Like in most circuit courts, the Second Circuit has long adopted a law-of-the-circuit rule that one panel cannot generally overrule another. “This court is bound by a decision of a prior panel unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc.” United States v. Ianniello, 808 F.2d 184, 190 (2d Cir. 1986), overruled on other grounds sub nom. United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989); see generally Phillip M. Kannan, The Precedential Force of Panel Law, 76 MARQ. L. REV. 755 (1993). 159. Windsor, 699 F.3d at 182. 160. United States v. Windsor, 133 S. Ct. 786, 786–87 (2012). 161. Brief on the Merits for Bipartisan Legal Advisory Group at 24–25, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307). 162. Brief on the Merits for the United States at 18–19, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307).

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unconstitutional animus toward gays and lesbians.163 Despite affirming the decision below, the Court made no mention of “suspect classifications” and did not even acknowledge that the Second Circuit had conducted the associated analysis. Only Justice Alito’s dissent noted in passing that some classes were “inherently suspect” but only as part of a larger discussion of rational basis review.164 Thus, the Second Circuit’s conclusion that sexual orientation qualified as a quasi-suspect class survived but only as precedent in the Second Circuit. The vast and more substantial body of other circuit cases relying on Bowers to reach the opposite conclusion remained totally undisturbed, despite seven years having passed since Bowers was overruled. B. Post-Windsor District Court Resistance Despite resolving a question of federal law, Windsor immediately sparked a flurry of lower court challenges to state same-sex marriage bans. For a brief time, scholars and attorneys debated whether Windsor’s strong language about animus would be used as a “sword” by district courts to strike down the bans, or whether its language about the importance of federalism would provide a “shield” to antigay state statutes and constitutional amendments.165 Over the next year and a half, the answer became clear. Windsor was a sword, and a sharp one. Between June 2013 and November 2014, dozens of federal courts around the country enjoined or struck down state gay marriage bans in part or in whole.166 Among those district courts swinging the sword of Windsor, two were within the Sixth Circuit. In striking down parts or all of the gay 163. Windsor, 133 S. Ct. 2681. 164. Id. at 2717. 165. See Laurence H. Tribe & Joshua Matz, An Ephemeral Moment: Minimalism, Equality, and Federalism in the Struggle for Same-Sex Marriage Rights, 37 N.Y.U. REV. L. & SOC. CHANGE 199, 210 (2013); Jason Steed, Windsor is All Sword, LEGAL SOLUTIONS BLOG (February 21, 2014), http://blog.legalsolutions.thomsonreuters.com/top-legal-news/windsor-sword/; Nancy C. Marcus, When Quacking Like a Duck is Really a Swan Song in Disguise: Analysis Sets the Stage for the Demise of Federalism-Based Marriage Discrimination, 64 CASE W. RES. L. REV. 1073, 1091–92 (2014); Stephanie S. Hathaway & Jonathan H. Krol, Sexual Orientation, Gender Identity, Gender Stereotyping, and Other Legal Minefields Following the Supreme Court’s Defense of Marriage Act Decision in United States v. Windsor, 1 J. AM. L. 10 (2014). 166. See Obergefell v. Hodges, 135 S. Ct. 2584, 2608–10 (2015) (listing U.S. District Court decisions addressing same-sex marriage).

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marriage bans in Ohio and Kentucky, they questioned or openly rejected the Bowers-based precedent which proscribed suspect class analysis and heighted scrutiny.167 These cases would eventually join others from Michigan and Tennessee to become known, collectively, as Obergefell v. Hodges. 1. Obergefell v. Wymyslo and Henry v. Himes After his spouse John Arthur died of ALS (Lou Gehrig’s disease) in October 2013, Ohio resident James Obergefell sought a declarative order from the Southern District of Ohio that his name must appear on Arthur’s death certificate despite Ohio’s constitutional ban on the recognition of out-of-state gay marriages.168 He and three other plaintiffs argued that the court should apply heightened scrutiny to the ban because sexual orientation qualified as a suspect class.169 District Judge Timothy Black agreed, but he first had to dispatch several obstacles in his way. Both Davis and Scarbrough summarily declared that sexual orientation was not and had never been considered a suspect classification in the Sixth Circuit. However, Judge Black did what the appeals court had neglected to do: he connected the dots from those cases back to Bowers v. Hardwick. He noted that Davis had relied on Scarbrough, and Scarbrough had relied on the Equality Foundation rulings: However, Equality Foundation no longer stands as sound precedential authority for the proposition that 167. The United States District Court for the Eastern District of Michigan similarly struck down Michigan’s gay marriage ban but did so without questioning the basis of Davis or Scarbrough. DeBoer v. Snyder, 973 F. Supp. 2d 757, 769 (E.D. Mich. 2014), rev’d, 772 F.3d 388 (6th Cir. 2014), rev’d sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). (“In this case, plaintiffs moved to bifurcate the trial in the event the Court decided to hear testimony about whether classifications based on sexual orientation are deserving of heightened scrutiny. The Court granted the motion, although governing Sixth Circuit precedent does not consider gay, lesbian, bisexual or transgender persons to constitute suspect or quasi-suspect classes. While some federal courts have held that a more exacting level of scrutiny should be applied in reviewing the constitutionality of same-sex marriage bans, the Court need not decide the issue because the [state gay marriage ban] does not survive even the most deferential level of scrutiny, i.e., rational basis review.”) (citations omitted). 168. Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 975–76 (S.D. Ohio 2013), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 169. Obergefell v. Wymyslo, 962 F. Supp. 2d at 986.

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restrictions on gay and lesbian individuals are subject to rational basis analysis. As the Court for the Eastern District of Michigan recently pointed out, there are “ample reasons to revisit the question of whether sexual orientation is a suspect classification,” including the fact that Sixth Circuit precedent on this issue—including Equality Foundation—is based on Bowers v. Hardwick, which was overruled by Lawrence in 2003. The Supreme Court, in overruling Bowers, emphatically declared that it “was not correct when it was decided and is not correct today.” In repudiating the Bowers decision, the Supreme Court stated that “[i]ts continuance as precedent demeans the lives of homosexual persons” and represents “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” In overruling Bowers, the Supreme Court eliminated a major jurisprudential foundation of Scarbrough, Equality Foundation, and other decisions relied on to foreclose the possibility of heightened scrutiny for sexual orientation classifications.170 Thus, Judge Black said, the district courts in the Sixth Circuit were “without controlling post-Lawrence precedent” on the issue of suspect class and could conduct the analysis themselves.171 Assessing the factors used by the Second Circuit in its Windsor analysis, the court determined that “[s]exual orientation discrimination 170. Id. at 986–87 (internal citations omitted). In Bassett v. Snyder, the Eastern District of Michigan noted the Bowers connection to Davis and Scarbrough but declined to conclusively rule on the question of suspect classification. Basset v. Snyder, 951 F. Supp. 2d 939, 961 (E.D. Mich. 2013) (“The Sixth Circuit’s pronouncements on the question are worthy of reexamination. The latest case, Davis v. Prison Health Services, relies on Scarbrough v. Morgan County as the authority for the idea that sexual orientation is not a recognized suspect classification. Scarbrough, in turn, cited Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati for its holding that ‘homosexuality is not a suspect class in this circuit.’ And the Equality Foundation court based its holding squarely on Bowers v. Hardwick. Bowers, of course, was overruled by Lawrence v. Texas. The tarnished provenance of Davis and the cases upon which it relies provides ample reasons to revisit the question of whether sexual orientation is a suspect classification under equal protection jurisprudence. At present, however, that is not the law of the circuit, and it cannot govern the decision here.”). 171. Obergefell v. Wymyslo, 962 F. Supp. 2d at 987.

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accordingly fulfills all the criteria the Supreme Court has identified” and then applied heightened scrutiny, which the Ohio government defendants “utterly failed” to survive.172 Judge Black restated this conclusion four months later in Henry v. Himes, a broader challenge to Ohio’s gay marriage ban brought by four same-sex couples married outside the state.173 Again, he ruled that the Sixth Circuit’s precedent proscribing suspect class analysis and heightened scrutiny could no longer control because it was based on Bowers v. Hardwick.174 2. Bourke v. Beshear and Love v. Beshear Meanwhile, in a case very similar to Henry v. Himes, four samesex couples married outside of Kentucky challenged that state’s constitutional and statutory gay marriage recognition bans.175 Like their counterparts in Ohio, the Kentucky plaintiffs sought heightened scrutiny partly on the basis that sexual orientation constituted a suspect classification.176 District Judge John Heyburn acknowledged the obstruction posed by Sixth Circuit precedent but expressed optimism. Yes, Davis and Scarbrough said that sexual orientation was not a suspect classification, but: It would be no surprise, however, were the Sixth Circuit to reconsider its view. Several theories support heightened review. Davis based its decision on a line of cases relying on Bowers v. Hardwick, which has since been overruled by Lawrence v. Texas . . . Moreover, a number of reasons suggest that gay and lesbian individuals do constitute a suspect class. They seem to share many characteristics of other groups that are afforded heightened scrutiny, such as historical discrimination, immutable or distinguishing characteristics that define them as a discrete group, 172. Id. at 991. 173. Henry v. Himes, 14 F. Supp. 3d 1036 (S.D. Ohio 2014). 174. Id. at 1054–55. Judge Black also noted that in the interim between his decisions in Obergefell and Henry, the Ninth Circuit had concluded that the Supreme Court’s Windsor opinion “required [courts] to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.” SmithKline Beechan Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir. 2014). 175. Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014). Full disclosure: the author of this article represented the plaintiffs in this litigation. 176. Id. at 548.

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and relative political powerlessness. Further, their common characteristic does not impair their ability to contribute to society.177 Nevertheless, Judge Heyburn declined to formally rule on the issue and instead looked to the Supreme Court’s Windsor opinion for guidance, finding that “no clear majority of Justices stated that sexual orientation was a suspect category.”178 Heyburn ultimately applied rational basis scrutiny instead of heightened scrutiny in striking down Kentucky’s marriage recognition ban.179 Five months later, after two unmarried same-sex couples intervened in the Bourke case to challenge the Kentucky ban on instate gay marriage, Judge Heyburn issued a second ruling, this time with a change of heart on the question of suspect class (and a change in caption to Love v. Beshear).180 Referencing Obergefell and the 2013 Eastern District of Michigan case Bassett v. Snyder, which both called attention to the Bowers-reliant basis of Sixth Circuit precedent, Heyburn concluded that his court “must now conduct its own analysis to determine whether sexual orientation classifications should receive heightened scrutiny.”181 Because gays and lesbians had suffered a history of discrimination, were effectively politically powerless, were defined by immutable characteristics and because sexual orientation did not affect anyone’s ability to contribute to society, the court concluded that “homosexual persons constitute a quasi-suspect class” entitled to intermediate scrutiny.182 That significant declaration aside, Judge Heyburn ruled consistent with his prior decision in Bourke that Kentucky’s marriage ban could not 177. Id. at 548–49. 178. Id. at 549. 179. Id. at 553. 180. Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014). Full disclosure: the author of this article represented the plaintiffs in this litigation. 181. Id. at 545; see also Bassett v. Snyder, 951 F. Supp. 2d 939, 961 (E.D. Mich. 2013). 182. Id. at 547 (citing Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012)). Judge Heyburn also noted another district court decision in Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014), aff’d on other grounds, Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). Wolf applied the factors test and concluded sexual orientation qualified as a suspect class, despite Bowers-reliant Seventh Circuit precedent to the contrary such as Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), which the court described as “limited to the military context,” and whose holding made sense because “courts must be more deferential to the government in matters of national security.” Wolf v. Walker, 986 F. Supp. 2d at 1011.

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“withstand constitutional review regardless of the standard” and dispatched the marriage ban on rational basis grounds.183 C. DeBoer v. Snyder By early July 2014, six district court opinions had struck down part or all of the same-sex marriage bans in each of the four states of the Sixth Circuit.184 Three of those decisions— Obergefell, Henry, and Love—had explicitly ruled that sexual orientation constituted a quasi-suspect classification entitled to heightened scrutiny. On appeal, all six cases were consolidated and set for oral argument on August 6, before a panel consisting of Judges Jeffrey Sutton,185 Deborah Cook,186 and Senior Judge Martha Craig Daughtrey.187 All four states defending their bans opposed heightened scrutiny. All the plaintiffs argued for it, both because marriage bans infringed on the fundamental right to marry and because sexual orientation qualified as a suspect class under existing Supreme Court precedent. The question was once again before the Sixth Circuit, and once again the court declined to change course. “Our precedents say that rational basis review applies to sexualorientation classifications,” wrote Judge Sutton in a 2-1 opinion upholding the gay marriage bans of Ohio, Tennessee, Michigan, and Kentucky.188 As authority for this, he cited Davis and Scarbrough.189 183. Love, 989 F. Supp. 2d at 547. 184. Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013); Henry v. Himes, 14 F. Supp. 3d 1036 (S.D. Ohio 2014); Bourke v. Beshear, 996 F. Supp. 2d 542 (W.D. Ky. 2014); Love, 989 F. Supp. 2d 536; Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014). 185. Appointed to the Sixth Circuit by George W. Bush in 2003. History of the Federal Judiciary, FEDERAL JUDICIAL CENTER, http://www.fjc.gov/servlet/ nGetInfo?jid=3010&cid=999&ctype=na&instate=na (last visited May 8, 2016). 186. Appointed to the Sixth Circuit by George W. Bush in 2003. History of the Federal Judiciary, FEDERAL JUDICIAL CENTER, http://www.fjc.gov/servlet/ nGetInfo?jid=2998&cid=999&ctype=na&instate=na (last visited May 8, 2016). 187. Appointed to the Sixth Circuit by William J. Clinton in 1993. History of the Federal Judiciary, Federal Judicial Center, http://www.fjc.gov/servlet/ nGetInfo?jid=563&cid=999&ctype=na&instate=na (last visited May 8, 2016). 188. DeBoer v. Snyder, 772 F.3d 388, 413 (6th Cir. 2014), rev’d sub nom. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 189. DeBoer, 772 F.3d at 413. Judge Sutton had also sat on the panel of Davis four years before. In his DeBoer opinion, he also cited Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997). The defendant City in that case argued that, based on Bowers, “it is always constitutional to discriminate on the basis of sexual orientation.” Stemler, 126 F.3d at 873. The Sixth Circuit rejected this argument,

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Unlike in those cases where the analysis stopped with a simple recitation of Bowers-based precedent, this court actually conducted some analysis—not that doing so changed the outcome, of course. Effectively rejecting the reasoning of its lower courts, the Sixth Circuit found that Windsor compelled no higher level of scrutiny for laws targeting gays and lesbians. “The Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in more than four decades. There are ample reasons for staying the course.”190 Despite acknowledging “the lamentable reality that gay individuals have experienced prejudice in this country,” the Sixth Circuit concluded that same-sex marriage arose independently.191 Gays and lesbians could not be considered politically powerless because they were part of an “influential, indeed eminently successful” interest group whose “future holds more promise than the past.”192 Thus, sexual orientation did not qualify as a suspect classification and rational basis scrutiny was appropriate.193 Ironically, that bright future for gays and lesbians to which Judge Sutton eluded was darkened significantly by his own opinion in DeBoer. The three favorable lower court rulings on the question of suspect class were now reversed and yet another Sixth Circuit ruling was added to the Bowers-based precedential pile along with Davis and Scarbrough.194 By the end of 2014, only two circuits, the Secondand the Ninth, had successfully harnessed the power of United States v. Windsor to establish sexual orientation as a suspect or quasi-suspect classification entitled to heightened scrutiny. The Fourth,195 Seventh,196 and Tenth Circuits,197 which struck down the gay marriage bans in Virginia, Indiana, Wisconsin, Utah, and Oklahoma, finding that regardless of Bowers, Romer made it clear that anti-gay animus alone was not a constitutional basis for government action. DeBoer, 772 F.3d at 413. 190. DeBoer, 772 F.3d at 413. 191. Id. 192. Id. at 415. 193. Id. 194. DeBoer, 772 F.3d 388 (Before its reversal, DeBoer was cited by at least one district court to foreclose suspect class status for sexual orientation); see, e.g., Desoto v. Bd. of Parks & Rec., 64 F. Supp. 3d 1070, 1090 (M.D. Tenn. 2014). 195. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (due process). 196. See Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (animus). 197. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (due process); see also Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) (same).

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did so on due process grounds, leaving undisturbed their own Bowers-reliant equal protection precedents.198 Windsor was a sword, perhaps, but it did not cut surgically enough to kill the “blind imitation” of Bowers that Justice Blackmun had warned against.199 IV. THE LIMITED VICTORY OF OBERGEFELL V. HODGES In October of 2014, the Supreme Court simultaneously declined to review cases from the Fourth, Seventh, and Tenth Circuits which struck down marriage bans in five states.200 But the Sixth Circuit created a circuit split with DeBoer, leading the Supreme Court to grant certiorari and finally resolve the question of gay marriage in January 2015.201 At the Supreme Court level, the gay and lesbian plaintiffs (from Kentucky, Ohio, Tennessee, and Michigan) once again sought heightened scrutiny partially on the grounds that sexual orientation 198. Bostic, 760 F.3d at 375 n.6 (“This Court previously declined to recognize sexual orientation as a suspect classification in Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc), and Veney v. Wyche, 293 F.3d 726, 731–32 (4th Cir. 2002). Because we conclude that the Virginia Marriage Laws warrant strict scrutiny due to their infringement of the fundamental right to marry, we need not reach the question of whether Thomasson and Veney remain good law.”). The Fourth Circuit alone actually acknowledged these precedents in its majority opinion but went no further. The Seventh Circuit in Baskin, by contrast, made no mention of Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) or Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir. 2002), which foreclosed heightened scrutiny based on Bowers. And the Tenth Circuit never addressed National Gay Task Force v. Bd. of Educ., 729 F.2d 1270 (10th Cir. 1984), Jantz v. Muci, 976 F.2d 623 (10th Cir. 1992), Walmer v. Dep’t of Def., 52 F.3d 851 (10th Cir. 1995), or PriceCornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) in either of its Kitchen or Bishop majority opinions, but in his dissent to Kitchen, Judge Paul Kelly cited the latter three favorably. Kitchen v. Herbert, 755 F.3d 1193, 1233 (10th Cir. 2014). 199. See Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1207 (D. Utah 2013), aff’d, 755 F.3d 1193 (10th Cir. 2014) (striking down Utah’s same-sex marriage ban on due process grounds while rejecting the argument that sexual orientation qualifies as a suspect classification because the “extensive footnote in Price-Cornelison clearly indicates that the Tenth Circuit currently applies only rational basis review to classifications based on sexual orientation.”). See discussion supra Section II.B. 200. Rainey v. Bostic, 135 S. Ct. 286 (2014); Bogan v. Baskin, 135 S. Ct. 316 (2014); Herbert v. Kitchen, 135 S. Ct. 265 (2014); Smith v. Bishop, 135 S. Ct. 271 (2014). 201. Obergefell v. Hodges, 135 S. Ct. 1039 (2015); DeBoer v. Snyder, 135 S. Ct. 1040 (2015); Tanco v. Haslam, 135 S. Ct. 1040 (2015); Bourke v. Beshear, 135 S. Ct. 1041 (2015).

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should be considered a suspect classification.202 The states, consistent with their arguments below, opposed such a finding and argued that their anti-gay marriage laws could survive rational basis review.203 Despite being given another opportunity to resolve the question of suspect classification, the Supreme Court again opted out. On June 26, the twelfth anniversary of Lawrence v. Texas, in a 5-4 opinion, written by Justice Kennedy, the Court struck down same-sex marriage bans nationwide as a violation of the fundamental right to marry enjoyed by opposite-sex and same-sex couples alike.204 “[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”205 Obergefell focuses primarily on due process and does not engage in any formal suspect class analysis, but it is not without useful passages for that purpose. First of all, the Court declared, for the first time, “that sexual orientation is both a normal expression of human sexuality and immutable.”206 Second, the Court acknowledged that gays and lesbians have suffered a significant history of discrimination, having been “prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.”207 Together, these statements address two of the common factors used to assess suspect class status. But Obergefell does not explicitly command heightened scrutiny for government laws and actions that discriminate on the basis of sexual orientation. While it does establish that sexual orientation has no effect on a person’s ability to participate in society or its institutions such as marriage, it does not cite to any of the cases from which the lower courts derived their factors tests, such as Cleburne v. Cleburne, Bowen v. Gilliard, or Lyng v. Castillo.208 It also does not address whether gays and lesbians are to be considered as politically 202. See, e.g., Brief for Petitioners at 32–38, Bourke v. Beshear, 135 S. Ct. 1041 (2015) (No. 14-571). 203. See, e.g., Brief for Respondent at 8-9, Bourke v. Beshear, 135 S. Ct. 1041 (2015) (No. 14-574). 204. Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 205. Id. at 2604. 206. Id. at 2596. 207. Id. 208. Lyng v. Castillo, 477 U.S. 635 (1986).

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powerless either in the past or today. Political powerlessness, more than any other factor, was ultimately dispositive in the Sixth Circuit’s rejection of suspect class status in DeBoer. There is little reason to believe Obergefell will finally put an end to the significant volume of circuit authority—based on Bowers— rejecting the premise that anti-gay laws require heightened scrutiny because they target a suspect classification. The Sixth Circuit has already eliminated any contrary speculation. On August 3, 2015, just over one month after the Supreme Court ruled in Obergefell, the Sixth Circuit issued an opinion in the case of Ondo v. City of Cleveland.209 Steven Ondo and Jonathan Simcox were arrested by Cleveland police in 2011 on allegations of assaulting an officer.210 They were dressed only in boxer shorts at the time of their arrest and were not given additional clothing to wear until after being taken to the police station.211 As part of their subsequent suit against the city, and several police officers, they alleged that this sartorial denial was motivated by anti-homosexual animosity and violated their Fourteenth Amendment rights.212 In Part III.C of its opinion affirming summary judgment for the defendant city and police, the court applied rational basis scrutiny to the officers’ actions because the plaintiffs did not belong to a suspect class.213 The Supreme Court had never ruled to the contrary, the court said, not even in Obergefell: In Obergefell, the Court was explicitly asked by the petitioners and various amici to declare that homosexuals are a specially protected class, and thus that government actions that disfavor homosexuals are subject to heightened scrutiny. But the Court held only that the Equal Protection Clause was violated because the challenged statutes interfered with the fundamental right to marry, not that homosexuals enjoy special protections under the Equal Protection Clause.214 With Obergefell as no guidepost, the court instead cited Davis and Scarbrough, and further concluded: 209. 210. 211. 212. 213. 214.

Ondo v. City of Cleveland, 2015 U.S. App. LEXIS 13474 (6th Cir. 2015). Id. at *1–2. Id. at *5. Id. at *6. Id. at *25–26. Id. at *25 (internal citations omitted).

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Plaintiffs have not offered any argument as to why heightened scrutiny should apply to state actions involving homosexuals, and indeed failed even to explore the relevant cases. And as we have already explained, Obergefell did not abrogate those prior cases. We therefore have no basis for reviewing Plaintiffs’ equal-protection claim on any basis more stringent than rational-basis review.215 Once again, the Sixth Circuit failed to acknowledge the obsolete basis of its prior cases foreclosing heightened scrutiny of government actions targeting gays and lesbians. Instead, the court doubled down, formally declaring that Obergefell did nothing at all to eliminate the legacy of Bowers from circuit precedent.216 Significantly, the Sixth Circuit panel in Ondo included some familiar names: Judges Jeffrey Sutton and Deborah Cook. Together they comprised the ruling majority in DeBoer v. Snyder. Additionally, Judge Sutton was a member of the panel in Davis v. Prison Health Services. But note that the Ondo opinion, written by Judge Alice Batchelder,217 was not joined in full by Judge Sutton. Though he concurred with most of the court’s ruling, Judge Sutton dissented to Part III.C. Writing separately, he concluded that summary judgment could be granted to the defendants on other grounds, and therefore he saw “no reason in Part III.C to reach the merits of the equal protection claims.”218 At the time of this writing, no other circuit has addressed its own Bowers-based case law since Obergefell, either to reject or affirm precedent, which denies heightened scrutiny for sexual orientation classifications.219 215. Id. (emphasis added). 216. Id. 217. Appointed to the Sixth Circuit by George W. Bush in 1991. History of the Federal Judiciary, FEDERAL JUDICIAL CENTER, http://www.fjc.gov/servlet/ nGetInfo?jid=116&cid=999&ctype=na&instate=na (last visited May 8, 2016). 218. Lest one be inclined to suspect that Judge Sutton has had a change of opinion on the question of suspect class since DeBoer, note the case of United States v. Jeffries. After posting a music video with hostile language aimed at a judge, a man was convicted under 18 U.S.C. § 875(c). Judge Sutton wrote for the court upholding the conviction, but he also wrote a separate dubitante opinion questioning the prevailing interpretation of the law. United States v. Jeffries, 692 F.3d 473, 483 (6th Cir. 2012), overruled by Elonis v. United States, 135 S. Ct. 2001 (2015). By comparison, Judge Sutton wrote no dubitante opinion in Ondo. 219. In Ragsdell v. Reg’l Hous. All., 603 F. App’x 653, 655 (10th Cir. 2015), the tenth circuit relied upon Janzt v. Muci, 976 F.2d 623 (10th Cir. 1992), to apply a rational-basis standard to a claim of disability discrimination. Unlike in Janzt,

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V. ENDING THE BLIND IMITATION As the Sixth Circuit helpfully illustrated in Ondo v. City of Cleveland, the legacy of Bowers v. Hardwick still persists in circuit case law even after Lawrence, Windsor, and Obergefell.220 But recognizing that legacy is the easy part. Numerous district courts beyond the Sixth Circuit have resisted this legacy before and since Windsor, distinguishing or explicitly revolting against circuit precedent.221 It is far more difficult to eliminate it for good. Not even the Supreme Court itself, striking down Bowers with Lawrence v. Texas, was able to prevent the “blind imitation” that Justice Blackmun warned against in his Bowers dissent. Many circuits, especially the Sixth, continue to reflexively cite past cases—all borne from Bowers—to summarily foreclose heightened scrutiny for government actions targeting gays and lesbians long after Lawrence. They do so without analysis of the reasoning in those precedents, and under the cover of rules designed to shield circuit precedent from inconsistent, overzealous panels. In its Ondo opinion, the Sixth Circuit cited this “law-of-thecircuit” doctrine as a reason not to disturb either Davis or Scarbrough.222 But that doctrine does not foreclose all inter-panel

sexual orientation was not an issue in Ragsdell. In United States v. Hope, 2016 U.S. App. LEXIS 2270 (11th Cir. 2016), the eleventh circuit quoted the rationalbasis standard from Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004), in a claim involving no suspect-class argument. 220. Optimistic predictions that the refusal of the Department of Justice to defend the Defense of Marriage Act and the Second Circuit’s Windsor ruling would topple Bowers as lingering precedent in other circuits did not pan out. See, e.g., Roberta A. Kaplan & Julie E. Fink, The Defense of Marriage Act: The Application of Heightened Scrutiny to Discrimination on the Basis of Sexual Orientation, 2012 CARDOZO L. REV. DE NOVO 203, 209 (2012). 221. See Wolf v. Walker, 986 F. Supp. 2d 982, 1011 (W.D. Wis. 2014), aff’d on other grounds sub nom. Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (distinguishing Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Bostic v. Rainey, 970 F. Supp. 2d 456, 482 n.16 (E.D. Va. 2014), aff’d on other grounds sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010), aff’d sub nom. Perry v. Brown, 671 F.3d 1052, 1080–82, 1095 (9th Cir. 2012), vacated for want of standing sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013)). 222. Ondo, 2015 U.S. App. LEXIS 13474 at *25. That doctrine springs from Sixth Circuit Rule 206(c) and a string of cases from the 1970s until the early 2000s, including Timmreck v. United States, 577 F.2d 372, 377 (6th Cir. 1978) and Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Currently,

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review. One way previous panel opinions can be overturned is by a full circuit sitting en banc—but this is discretionary and increasingly rare.223 The Sixth Circuit, for example, would need a good reason to grant en banc review to a case like Ondo, and it would likely be less inclined to do so when a panel merely recites old circuit precedent and declines to upset the status quo. It is more likely that a panel would have to challenge precedent like Davis or Scarbrough first to even earn en banc review, and therefore have a shot at a conclusively binding decision that could overrule those cases for good. Instead, blindly imitating previous panel opinions is the safest bet for panel judges, avoiding any risk of an embarrassing reversal by the full circuit. A panel need not be fearful of rebuke. If there has been “a supervening decision by the Supreme Court,” a panel decision can be reconsidered by another panel.224 As the district courts in Ohio and Kentucky noted in early 2014 when they correctly struck down the gay marriage bans in those states, the total overruling of Bowers by Lawrence is certainly “supervening,” and it follows that any case law reliant on Bowers for its holding is therefore ripe for reconsideration. The reason circuits like the Sixth have “always applied rational basis review to state actions involving sexual orientation,” as the court noted in Ondo, is because “Bowers and its progeny command that, as a matter of law, gays, lesbians, and bisexuals cannot constitute either a ‘suspect class’ or a ‘quasi-suspect class,’” as the court noted in Equality Foundation I. It is now twelve years after Lawrence. It is impossible to argue that Bowers can still command any controlling doctrine of any kind. It is time for circuit panels to apply the suspect class analysis when faced with anti-gay government actions, regardless of “law-of-thecircuit” restrictions. At least in DeBoer, when Judges Sutton and Cook upheld the gay marriage bans in the four states of the Sixth Circuit, some lip service was paid to the factor test for suspect classifications. Though ultimately concluding that sexual orientation did not make the cut, the court at least took one step beyond simply reciting old precedent. That was progress, a pyrrhic victory of sorts. Fortunately for gays and lesbians targeted by government action, the most frequently cited case for this rule is Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001) (cited in Davis, DeBoer, and Ondo). 223. Aaron S. Bayer, En Banc Review Has Declined During the Past Decade, NAT’L L.J., May 9, 2011. 224. Darrah, 255 F.3d at 309.

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DeBoer’s hostile conclusion about suspect class status disappeared when the Supreme Court struck down gay marriage bans nationwide. Unfortunately, though, the Sixth Circuit has returned to its Davis and Scarbrough view—reciting status quo despite the broad interpretations of Obergefell made possible by its acknowledgment of “immutable” characteristics and a history of discrimination faced by gays and lesbians. Also, this problem is not restricted to the Sixth Circuit. As explored throughout this article, there is now an undeniable split among the circuits over the question of whether sexual orientation qualifies for suspect or quasi-suspect status. The Ninth and Second Circuits have ruled that it does. The contrary holding of the Sixth Circuit is shared by the rest of its sisters, with the exception of the Third, which does not appear to have ever considered the question.225 While the Supreme Court is traditionally inclined to settle disagreements among the lower courts, the question of suspect class was undeniably before it in both Windsor and Obergefell, and the Court dodged it both times. Thus, the split remains unsettled for now.226 So it must come down to panels of circuit court judges to do the work started by Lawrence. Instead of mechanically reciting that sexual orientation has never before been considered a suspect classification and ending their analysis there, they should stop and ask why that is. Asking why, as Judges Spiegel, Black, and Heyburn were willing to do, will force them to confront the source of their circuits’ hostile precedent: Bowers v. Hardwick. Those circuit judges will need more opportunities to ask why, and they may soon get them. A backlash to Obergefell has already spawned a new round of discriminatory legislation targeting gays and lesbians for exclusion from public accommodations and government services.227 This legislation will inevitably be challenged in federal 225. See Whitewood v. Wolf, 992 F. Supp. 2d 410, 428 (M.D. Pa. 2014) (concluding that sexual orientation qualifies as “quasi-suspect” not reliant on or resistant to applicable Third Circuit precedent). 226. Note that neither Windsor nor Obergefell included any concurring opinions. No Justice has written any opinion explicitly stating that sexual orientation should receive suspect class status. 227. See, e.g., H.B. 17, 16 Reg. Sess. (Ky. 2016) (“AN ACT relating to marriage. Amend KRS 344.130, 402.050, and 446.350 to exempt persons, officials, and institutions with religious objections to same-sex marriage from any requirement to solemnize, or to issue or record licenses for, such marriages.”); see also H.B. 14, 16 Reg. Sess. (Ky 2016) (“AN ACT relating to the exercise of

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courts as a violation of the Fourteenth Amendment. Thus panels will have to consider the question of scrutiny, and they should seriously consider counselâ&#x20AC;&#x2122;s arguments in favor of suspect class status. They must resist the urge to blindly imitate the past. An end to the revolting persistence of Bowers v. Hardwick is long overdue.

religious freedom in the solemnization of marriage. Amend KRS 344.130, 402.050, and 446.350 to exempt persons, officials, and institutions with religious objections to same-sex marriage from any requirement to solemnize such marriages.â&#x20AC;?).

HEALTH CARE QUALITY IMPROVEMENT ACT: PEER REVIEW, PROCEDURE, PROCESS, AND PRIVACY GREGORY NOWAKOWSKI, MICHAEL NOWAKOWSKI, THERESAMARIE MANTESE, AND JORDAN SEGAL* ABSTRACT The Health Care Quality Improvement Act (HCQIA, or the Act) provides powerful immunities for hospitals and others in the peer review process that subject health care professionals to “Professional Review Actions.” The law was passed in part in response to a Supreme Court case involving the inappropriate use of the physician peer review process. Now, over thirty years later, the scope of immunity under the HCQIA is still evolving, and HCQIA and its rules are increasingly interacting with other areas of law. For example, in our increasingly litigious world, Alternative Dispute Resolution or ADR concepts may prove a useful mechanism to resolve HCQIA and peer- review related disputes. In light of increased focus on privacy, it is important to review how HCQIA and peer review can interact with various privacy rules, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended. This Article first reviews the legislative history and health-care policy of the Act as well as recent case law interpreting the Act. The Article then focuses on the procedural protections under the Act and how ADR procedures may offer guidance on bolstering due process protections. Finally, the Article discusses HCQIA’s interaction with HIPAA and other privacy issues that may arise in litigation involving peer review. * Gregory Nowakowski is a partner at Honigman Miller Schwartz and Cohn LLP, in Detroit Michigan. Michael G. Nowakowski is a Commissioner with the Federal Mediation and Conciliation Service in Troy, Michigan and Adjunct Professor of Law, Wayne State University School of Law. The views expressed herein are those of the author only and do not purport to be an official position of the Federal Mediation and Conciliation Service. Theresamarie Mantese is a partner with Mantese Honigman, P.C., in Troy, Michigan. Ms. Mantese concentrates her practice on health care and business litigation and has been at the forefront of evolving health care policy and legal issues. Jordan Segal is an associate attorney at Mantese Honigman, P.C. where he specializes in business litigation and health care law.

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TABLE OF CONTENTS I.INTRODUCTION ............................................................................... 112 II.WHY HCQIA: LEGISLATIVE HISTORY .......................................... 113 A. Patrick v. Burget ............................................................... 113 B. Passage of the Health Care Quality Improvement Act .... 115 III.HCQIA IN ACTION IN THE COURTS .............................................. 118 A. “In Furtherance of Patient Care”: Is Patient Care the Reason for Peer Review? ............................................... 120 B. “Reasonable Effort to Obtain the Facts”: Was the Investigation Reasonable? ............................................. 122 C. “Adequate Notice and Hearing Procedures”: Was Due Process Provided? ........................................................ 124 D. “Reasonable Belief That the Action Was Warranted”: Do Facts Support Action? ..................................................... 126 IV.HOW DOES HCQIA INTERFACE WITH ALTERNATIVE DISPUTE RESOLUTION? ............................................................................ 127 A. Alternatives in Dispute Resolution: Which Process Works Best? ........................................................................... 128 B. Is the Purpose of Peer Review and HCQIA Quality or Improvement? .................................................................. 129 C. Is the Purpose of Peer Review and HCQIA to Discipline Physicians? .......................................................... 131 D. Perhaps an Optional Approach? ..................................... 132 E. Additional Training May Be Necessary. .......................... 132 V. HCQIA AND PRIVACY. ................................................................ 133 A. The 500 Pound HIPAA in the Peer Review Room. .......... 134 B. Privacy and Litigation: How Far Does the Peer Review Privilege Extend?..................................................... 136 C. NPDB Reports: Confidential but Discoverable. .............. 138 VI. CONCLUSION .............................................................................. 140 I.

INTRODUCTION

The Health Care Quality Improvement Act of 1986 (HCQIA or the Act) generally provides immunity to certain participants in the resolution of the standard of care or other staff-privileging issues for health care professionals. HCQIA was passed in 1986 as a means to discourage litigation against medical professionals when they participated in the peer-review process, where certain due process protections are provided to the individual under review. Today, peer

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review is all-pervasive, and medical staff members/professionals are routinely evaluated for competency and professional judgment. Yet, there has been a serious reevaluation as to whether the policies associated with HCQIA are still valid—does the Act continue to achieve its original purposes? Questions courts interpret under the Act involve the dynamic interplay among confidentiality of peer review activities, due process requirements for participants, and disclosure of information to patients. This Article will discuss the health-care environment in the context of HCQIA. First, the Article reviews the legislative history and health-care policy of the Act and recent case law interpreting the Act. The review of case law includes opinions from both the federal and state courts that have interpreted the Act. The Article then focuses on the procedural protections under the Act and how Alternative Dispute Resolution (ADR) procedures may offer guidance on bolstering due process protections. Finally, the Article discusses the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and other privacy issues that may arise in litigation involving peer review. II.

WHY HCQIA: LEGISLATIVE HISTORY A.

Patrick v. Burget

As with many laws, a case prompted the passage of HCQIA— Patrick v. Burget.1 The facts in Patrick involved Dr. Timothy Patrick, who was trained in both general and vascular surgery.2 After his initial one-year contract expired with the Astoria Clinic (Clinic), he was asked to become a partner.3 Because he felt he had not been paid in proportion to the income he had produced for the Clinic, he chose instead to open an independent practice in Astoria.4 The Clinic doctors reacted negatively to Dr. Patrick’s establishment of an

1. Patrick v. Burget, 486 U.S. 94 (1988). 2. Patrick v. Burget, 800 F.2d 1498, 1505 (9th Cir. 1986), rev’d on other grounds, 486 U.S. 94 (1988) (stating that plaintiffs must show that “the legislature contemplated the kind of activity complained of. That is, it must be clear that the legislature intended to replace competition with regulation . . . .” (citations omitted)). 3. Patrick v. Burget, 800 F.2d at 1502. 4. Id.

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independent practice.5 As such, Dr. Patrick received virtually no surgical referrals from the Clinic.6 During a period in which there was no general surgeon at the Clinic, patients were referred to hospitals 50 or more miles away for surgery.7 Clinic doctors reacted angrily when Dr. Patrick treated a “Clinic patient,” and the evidence showed several examples of confrontations resulting from the perceived theft of patients.8 Some of these confrontations took place in front of the patients themselves.9 The Clinic doctors also were not interested in helping Dr. Patrick with his own patients.10 Clinic surgeons consistently refused to enter into cross-coverage agreements with Dr. Patrick that would provide care for each other’s patients if any of them were unavailable to see patients.11 Clinic doctors were also reluctant to give consultations.12 Meanwhile, they repeatedly criticized Dr. Patrick for failure to get outside consultations and adequate backup coverage.13 A disciplinary action was triggered against Dr. Patrick.14 Several medical charts of patients who ostensibly were treated by Dr. Patrick were given to the medical executive committee.15 A partner of the Clinic chaired the committee, and two Clinic partners testified against Dr. Patrick before the committee.16 The evidence demonstrated that the Clinic doctors targeted Dr. Patrick’s cases for peer review and criticized his cases more often than those of other surgeons.17 Ultimately, Dr. Patrick’s privileges were terminated.18 Dr. Patrick was allowed a hearing at which the executive committee presented the case against him, and he presented a defense.19 The charges against Dr. Patrick were drawn up at a 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

Id. Id.

Id. Id. Id. Id. Id. Id. Id. Id. at 1503. Id. Id. Id. at 1503–04. Id. at 1504. Id.

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meeting, within the Clinic board room, attended by the hospital administrator and an attorney appointed by the hospital to represent the executive committee.20 In the end, Dr. Patrick was stripped of his staff privileges.21 He then filed a lawsuit against the partners of the Clinic.22 Dr. Patrick based his lawsuit on violations of the Sherman Act and interference with prospective economic advantage under Oregon law.23 The jury awarded Dr. Patrick $650,000 for the antitrust violations, which the court trebled.24 The jury awarded $20,000 in compensatory damages and $90,000 in punitive damages on the state law claim; the court awarded $228,600 in attorney’s fees.25 In total, Dr. Patrick was awarded over two million dollars. Ostensibly, the message sent to the medical community from this verdict was that physicians should be afraid to participate in peer review for fear of retaliatory litigation. Yet, what is missed in this superficial conclusion is that the case was not about peer review but about former partners using the peer-review process for financial advantage.26 Even with the passage of HCQIA, these facts raise issues as to whether immunity protection should be given under HCQIA. By today’s standards, the result in Dr. Patrick’s peer-review hearing could easily be challenged based upon the fact that the physicians, who participated in Dr. Patrick’s peer review, were biased and had financial incentives to terminate Dr. Patrick’s hospital privileges. B.

Passage of the Health Care Quality Improvement Act

There were many policy reasons why Congress passed the HCQIA.27 The Patrick case highlighted Congress’s concern that hospitals or doctors required immunity from litigation when they performed “peer reviews or challenges to professional conduct where patient care is at issue.”28 “HCQIA was adopted out of concern ‘that medical professionals who were sufficiently fearful of the threat of 20. 21. 22. 23. 24. 25. 26. 27. 28.

Id. Id. Id. Id. Id. at 1504–05. Id. at 1505. Id. at 1506. 42 U.S.C.A. §§ 11101–11152 (Westlaw 2016). Cohlmia v. St. John Med. Ctr., 693 F.3d 1269, 1276 (10th Cir. 2012).

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litigation will simply not do meaningful peer review, thus leaving patients at the mercy of people who should have been corrected or removed from their positions.’”29 This Congressional intent is evident from statements made at legislative hearings: The purpose of this legislation is to improve the quality of medical care by encouraging physicians to identify and discipline other physicians who are incompetent or who engage in unprofessional behavior. Under this bill, hospitals and physicians that conduct peer review will be protected from damages in suits by physicians who lose their hospital privileges, provided the peer review actions meet the due process and other standards established in the bill. In addition, hospitals and physicians that discipline doctors will be required to report these disciplinary actions to the state medical boards.30 Thus, in exchange for the broad grant of immunity, HCQIA requires that any disciplinary action taken against a doctor is reported to the National Practitioner’s Database (NPDB). Indeed, HCQIA provides that a health care entity can forfeit the immunity provided by HCQIA for up to 3 years if it fails to report any action which adversely affects the clinical privileges of a physician for a period longer than 30 days or accepts the surrender of clinical privileges of a physician while the physician is under an investigation for incompetence or improper professional conduct.31 However, the law requires an extensive administrative process—which includes an investigation by the Department of Health and Human Services along with notice and an opportunity to object—before the immunity can be revoked.32 In fact, Congress may have viewed the reporting requirements as part of the price to be paid for the broad grant of immunity. The District Court, in Anderson v. Eastern Connecticut Health Network, specifically noted the specific relationship between HCQIA’s reporting requirement and the immunity grant: 29. Id. (quoting IB PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW 19 n.1 (3d ed. 2006)). 30. H.R. REP. NO. 99-903, at *2 (1986), 1986 WL 31972. 31. 42 U.S.C.A. § 11111(b) (Westlaw 2016). 32. Id.

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The creation of the NPDB was central to Congress’s statutory scheme: NPDB reporting aims to ensure that hospitals and state medical boards receive critical information about the physicians they employ and license. In Congress’s judgment, any “professional review action[ ] related to professional competence or conduct” that adversely affects privileges for more than thirty days bears sufficiently on a physician’s credentials to require reporting.33 The Court noted that Congress provided immunity with respect to reports made to the NPDB, specifically to ensure that accurate information about practitioners could be relayed across state lines: Congress thought reporting so important to the HCQIA that it immunized health care entities against suits arising out of reports made in good faith 42. U.S.C § 11137 (c), offered a more limited form of immunity for professional review bodies and their members in suits arising out of professional review actions 42. U.S.C § 11137 (a) (1), and authorized sanctions against health care entities that fail to observe their reporting obligations 42. U.S.C § 11137 (c) (1).34 Thus, Congress recognized that immunity from damages liability in lawsuits for participation in peer review—and the accompanying national reporting scheme—would encourage medical professionals to voluntarily engage in this process with hospitals. In exchange, immunity offered a means to foster the relationship between these two health care factions—professionals and hospital administrators— to promote better health care. The congressional record shows that this was an explicit trade in the minds of legislators, when it states that “[t]o assure that the medical profession cooperates in this system, the Committee believes it is essential to provide some legal immunity to doctors and hospitals that engage in peer review activities.”35 33. Anderson v. E. Conn. Health Network, Inc., No. 3:12-cv-00785, 2015 WL 4393552, at *1 (D. Conn. July 16, 2015). 34. Id. 35. H.R. Rep. No. 99-903 at *2, 3.

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HCQIA IN ACTION IN THE COURTS

A “professional review action” is defined under HCQIA in pertinent part as “an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician . . . and which affects (or may affect) adversely the clinical privileges . . . of the physician.”36 “The term ‘adversely affecting’ includes reducing, restricting, suspending, revoking, denying, or failing to renew clinical privileges or membership in a health care entity.”37 For purposes of this Article, peer review will be synonymous with a professional review action under the Act. The thrust of many legal battles under HCQIA addresses the four prongs of the statute and whether a peer review is given immunity under the Act.38 HCQIA provides that hospitals and other participants are immune from claims for damages during a peer review if the following requirements are met: (1) the reason for the peer review is patient care; (2) the peer review is based on a reasonable investigation; (3) the physician was given fair process during the peer review; and (4) the investigation justifies taking an adverse action against the physician.39 As a statutorily created immunity, HCQIA is most commonly raised in a motion for summary judgment or motion to dismiss. In such a motion, the physician who was subject to peer review, and who wants to overcome the hospital’s HCQIA immunity, has the burden of proving that requirements were not met “by a preponderance of the evidence.”40 “A professional review action will be presumed to have met the preceding standards necessary for immunity to attach unless the presumption is rebutted by a preponderance of the evidence.”41 This presumption “creates an unusual standard for reviewing summary judgment orders, as the plaintiff bears the burden of proving that the professional review 36. 42 U.S.C.A. § 11151(9) (Westlaw 2016). 37. Id. § 11151(1); see also 45 C.F.R.A. § 60.3 (Westlaw 2016). 38. See infra at Part III. 39. 42 U.S.C.A. § 11112(a) (Westlaw 2016). 40. See Wahi v. Charleston Area Med. Ctr., 562 F.3d 599, 607 (4th Cir. 2009) (citing 42 U.S.C.A. § 11112(a) (Westlaw 2016)). 41. E.g., Gordon v. Lewistown Hosp., 423 F.3d 184, 202 (3d Cir. 2005) (citing 42 U.S.C.A. § 11112(a) (Westlaw 2016)).

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process was not reasonable and thus did not meet the standard for immunity.”42 Two recent cases, Wahi v. Charleston Area Medical Center, Inc. and Miller v. Huron Regional Medical Center, Inc., illustrate the difficulty that this “unusual standard for reviewing” can create. In Wahi, the medical center did not comply with its own internal bylaws in conducting a peer review.43 Yet, the court held that viewing the totality of the circumstances in an objectively reasonable manner showed that the physician was given fair procedures during his peer review hearing.44 Thus, the court ruled, questions under HCQIA as to whether the burden of production is met include whether objective evidence supports the finding made by participants in the peer review action and whether the physician was afforded adequate process based on the totality of the circumstances. Similarly, in Miller, Dr. Miller alleged that the Huron Medical Center (HRMC) disregarded its bylaws’ procedural mandates relating to corrective action. Specifically, Dr. Miller argued that the Medical Center requested that Dr. Miller “voluntarily” reduce her surgical privileges without providing a formal hearing.45 The court framed the question simply: “the court must determine whether [Dr. Miller] satisfied [her] burden of producing evidence that would allow a reasonable jury to conclude that [HRMC’s] peer review disciplinary process failed to meet the standards of HCQIA.”46 As an evidentiary matter, the Court ruled that Dr. Miller adduced sufficient evidence to establish that HRMC was required to provide her with due process, but did not.47 Thus, HRMC’s peer review fell outside the ambit of HCQIA’s immunity provisions, and Dr. Miller’s case could proceed.48 Although Wahi ruled that that the Hospital was immune under HCQIA and Miller ruled that the Hospital was not immune under HCQIA, in both cases the Hospital carried an initial presumption of immunity under HCQIA. The Court then required the physician challenging the immunity to bear the burden of disproving the elements of immunity. 42. 43. 44. 45. 2015). 46. 47. 48.

Id. Wahi, 562 F.3d at 602. Id. at 614. Miller v. Huron Reg’l Med. Ctr. Inc., 145 F Supp. 3d 873, 880 (D.S.D. Id. at 888 (internal quotations omitted). Id. Id.

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“In Furtherance of Patient Care”: Is Patient Care the Reason for Peer Review?

The first element that a physician must disprove in order to defeat HCQIA immunity examines whether “Patient Care” is the reason for the peer review. This prong for establishing HCQIA immunity requires that patient care must be the reason for peer review.49 Many factual situations may give rise to a finding that patient care is the reason for peer review, including a physician’s failure to provide accurate records of a patient’s diagnosis and the failure to provide timely care,50 a physician’s lack of poor judgment and skill in performing a surgery,51 and a physician’s failure to participate in evaluations as required by the Medical Executive Committee.52 Indeed, overall concerns based on the totality of the circumstances and not any individual patient issue may constitute a valid reason to initiate a peer-review action based on patient care.53 While case law seems to suggest that every aspect of a physician’s conduct in the hospital may constitute sufficient reasons to institute peer review based on patient care, the more complicated issue is whether patient-care reasons exist to institute peer review based on a physician’s conduct outside the hospital. In Moore v. Williamsburg Regional Hospital,54 the Fourth Circuit Court of Appeals examined this issue. In Moore, the physician was a general surgeon and the Department of Social Services filed a complaint 49. 42 U.S.C.A. § 11112(a)(1) (Westlaw 2016) (stating that, for the purposes of immunity, a peer review must be “in the reasonable belief that the action was in the furtherance of quality health care”). 50. See, e.g., DeKalb Med. Ctr. v. Obekpa, 315 Ga. App. 739, 740 (2013) (terminating a doctor and placing him on the NPDB for failure to provide accurate records of patient diagnosis and failure to provide timely care). 51. See, e.g., Randall v. Amisub of South Carolina Inc., 2014 WL 7008507, at *9 (S.C.C.P. 2014). 52. See, e.g., Johnson v. SSM Healthcare Sys., 988 F. Supp. 2d 1080, 1082 (E.D. Mo. 2013). 53. Burrowes v. Northside Hosp., 671 S.E.2d 176, 178 (Ga. App. 2008); see, e.g., Braswell v. Haywood Reg’l Med. Ctr., 234 F. App’x 47, 54–55 (4th Cir. 2007) (finding that under the circumstances, the hospital did not violate the doctor’s constitutional rights or lose its immunity under the HCQIA if the summary suspension of his privileges was necessary to protect patient safety); Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 340 (5th Cir. 2002) (holding summary suspension of cardiologist’s clinical privileges did not violate due process because doctor’s “methods posed a danger to patient safety”). 54. 560 F.3d 166 (4th Cir. 2009).

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against him for sexual abuse of his minor, adopted daughter.55 The Department eventually decided to dismiss the complaint because of the trauma to the minor child in having to testify in the proceeding.56 The hospital became aware of the allegations of sexual abuse and began a peer review investigation of the physician.57 The hospital suspended the physician’s staff privileges because of the potential risk to patients treated by the physician.58 The court upheld the hospital’s decision, stating “[a] physician’s competence can be implicated by conduct outside a health care facility if there is a clear nexus between the conduct and the ability to render patient care.”59 Moore suggests that a physician’s private conduct may have a spillover effect on the physician’s professional life if there is a reasonable connection between the physician’s private conduct and his professional conduct.60 However, Moore rejected that all private conduct of a physician could be the basis of peer review: It can be argued, of course, that almost any form of private misconduct may have some conceivable impact on a physician’s performance, but no fair reading of the statute (with its emphasis upon competence and professional conduct) would indicate Congress intended to go nearly so far. Human beings are not smooth and rounded pebbles, but often contradictory in their habits and traits. A surgeon whose personal life might not bear close scrutiny may nonetheless save lives with his talents in the operating room.61 Other illustrations may include situations where a physician has substance abuse or alcohol-abuse problems, but the physician does not show any signs of impairment while on staff at the hospital. Obviously, conduct involving substance abuse or alcoholism may be subject to peer review, even if occurring on non-work hours because of the risk that such abuse passes to patients. Murphy v. Goss62 is 55. 56. 57. 58. 59. 60. 61. 62.

Id. at 168–69. Id. at 170. Id. at 169. Id. Id. at 172. Id. Id. at 173. 103 F. Supp. 3d 1234 (E.D. Or. 2015).

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illustrative. In Murphy, a physician was on cardiac call requiring “the physician to be available for telephone consultation, scheduling surgeries with hospital staff, or to report to the hospital for acute surgical emergencies.”63 One night while on call, the physician drank one or two glasses of wine at a restaurant.64 The hospital board found that consuming alcohol while on cardiac call placed the physician at risk of impaired function, and, as such, “constitutes conduct ‘which does or might adversely affect a physician’s . . . ability to safely and skillfully practice medicine. . . .’”65 The hospital reprimanded the physician, finding that the physician “subordinated the best interest of his patients to his own personal desires.”66 The Court upheld the board’s decision.67 Thus, the Murphy case demonstrates that a physician’s personal conduct outside the hospital may be a legitimate basis for peer review because such conduct can be a risk to patient care. B.

“Reasonable Effort to Obtain the Facts”: Was the Investigation Reasonable?

The second prong for establishing HCQIA immunity requires the hospital to make a reasonable effort to obtain the relevant facts before initiating a peer review.68 HCQIA does not provide any definitive guidelines as to when an investigation is reasonable. In Brandner v. Bateman,69 the Court explained that the Act does not require a hospital to “carry out its investigation in any particular manner; it is only required to conduct a factual investigation that is reasonable under the circumstances.”70 Indeed, the inquiry as to whether an investigation is reasonable depends upon whether the “totality of the process” leading up to the peer review action is reasonable under the circumstances.71 The Court stated, quite simply, 63. Id. at 1237. 64. Id. 65. Id. (quoting OR. REV. STAT. ANN. § 677.188(4)(a) (Westlaw 2016)). 66. Id. at 1237–38. 67. Id. at 1242. 68. 42 U.S.C.A. § 11112(a)(2) (Westlaw 2016) (stating that, for the purposes of immunity, a peer review must be “after a reasonable effort to obtain the facts of the matter”). 69. 349 P.3d 1068 (Alaska 2015). 70. Id. at 1073 (quoting Cowell v. Good Samaritan Cmty. Health Care, 225 P.3d 294, 305 (Wash. Ct. App. 2009)). 71. Johnson v. SSM Healthcare Sys., 988 F. Supp. 2d 1080, 1089 (E.D. Mo. 2013).

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that the physician “is entitled to a reasonable investigation under the Act, not a perfect investigation.”72 Hospitals usually have great latitude in how an investigation is conducted leading up to a peer review. In general, the courts look at whether the hospital engaged in a good-faith effort to obtain the relevant facts to determine if there is a basis to initiate a peer-review action. Some of the factors considered by courts in deciding whether a hospital’s investigation was reasonable include: (1) whether the investigation involved inquiry into relevant, unbiased facts; (2) whether the investigation involved allowing the physician to present rebuttal evidence; (3) whether the physician interviewed during the investigation;73 and (4) whether witnesses interviewed about the incident in question.74 The question of what constitutes an investigation under the Act may also arise. In Doe v. Leavitt,75 the Court deferred to the Secretary of Health and Human Services for a definition of investigation.76 The Court stated an “investigation is . . . considered ongoing until the health care entity’s decision making authority takes a final action or formally closes the investigation.”77 The Court did not discuss when an investigation begins but did provide some insight by stating that an investigation includes “each of the discrete activities that a hospital undertakes during the course of its investigation.”78 In Doe, the Court identified the following as examples of an investigation: accepting a complaint, deciding to investigate, appointing an investigating committee, conducting fact gathering, and preparing a report.79 Thus, at a minimum, a factgathering process should be initiated in order to fall within the definition of an investigation under HCQIA.

72. Brandner, 349 P.3d at 1074. 73. Obey v. Frisco Med. Ctr., No. 4:13–CV–656, 2015 WL 417425, at *8 (E.D. Tex. Jan. 30, 2015). 74. Smigaj v. Yakima Valley Mem’l Hosp. Ass’n, 269 P.3d 323, 334 (Wash. Ct. App. 2012). 75. 552 F.3d 75, 85 (1st Cir. 2009). 76. Id. at 77. 77. Id. at 78. 78. Id. at 84. 79. Id.

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“Adequate Notice and Hearing Procedures”: Was Due Process Provided?

The third prong for establishing HCQIA immunity requires that the physician be given fair process during peer review.80 A physician is entitled to the basic procedure of notice of a hearing.81 The physician also has the rights: (1) to representation by an attorney or other person of the physician’s choice; (2) to have a record made of the proceedings; (3) to call, examine, and cross-examine witnesses; (4) to present relevant evidence regardless of its admissibility in a court of law; and (5) to submit a written statement at the close of the hearing.82 After the hearing, the physician has the right to receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations, and to receive a written decision of the health-care entity, including a statement of the basis for the decision.83 Of the four prongs, the physician’s procedural rights prong is one of the most litigated. In Hurwitz v. AHS Hosp. Corp., the court determined that a fair peer review proceeding occurs when: (1) the physician is given multiple opportunities to provide written submissions to the hospital’s reviewers and decision-makers; (2) the physician is notified of the specific patient cases that would be the subject of review before the formal hearing was conducted by the hearing panel; (3) the physician is represented in the internal hearings by able and experienced counsel who is a certified civil trial attorney; and (4) the physician testifies and also presents his own expert witness.84 Some hospitals have argued that compliance with hospital bylaws shows compliance with the HCQIA. For example, in Peper v. St. Mary’s Hospital and Medical Center,85 a cardiothoracic surgeon had 80. 42 U.S.C.A. § 11112(a)(3) (Westlaw 2016) (stating that, for the purposes of immunity, a peer review must be “after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances”). 81. 42 U.S.C.A. § 11112(b) (Westlaw 2016). 82. 42 U.S.C.A. § 11112(b)(3)(C) (Westlaw 2016). 83. 42 U.S.C.A. § 11112(b)(3)(D) (Westlaw 2016). 84. Id. 85. 207 P.3d 881 (Colo. App. 2008); see also Wieters v. Roper, 58 F. App’x 40, 46 (4th Cir. 2003) (HCQIA immunity dependent on a hospital following its bylaws); Meyers v. Logan Mem’l Hosp., 82 F. Supp. 2d 707, 715 (W.D. Ky. 2000) (HCQIA does not require a hospital to follow its bylaws). But see Islami v.

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several of his cases reviewed by an external reviewer without his knowledge.86 The external reviewer was unclear as to conclusions and requested films of other patients for further review, which were not provided to the reviewer.87 Dr. Peper’s privileges were then terminated effective immediately without prior notice.88 A letter stated that termination from the medical staff under the bylaws did not require a hearing.89 Dr. Peper brought a federal suit alleging, among other things, anticompetitive conduct.90 The defendants responded to the suit based upon immunity under HCQIA and the district court granted the hospital’s motion for summary judgment.91 On appeal, the appellate court focused on the due process prong of HCQIA, stating that “defendants indisputably took final action adverse to Dr. Peper without providing any notice [that] his conduct even was under review. They provided Dr. Peper no opportunity to be heard before revoking his privileges and reporting him to the state medical board and the national data bank.”92 The hospital argued that Dr. Peper waived his HCQIA procedural rights by applying for provisional hospital privileges and agreeing to be bound by bylaws that provided that no hearing rights were to be given to provisional staff.93 The Court rejected this argument: Just as noncompliance with hospital bylaws does not show noncompliance with the HCQIA, compliance with hospital bylaws does not show compliance with the HCQIA. This is because a peer review disciplinary action does more than terminate one physicianhospital relationship. Indeed, Congress intended the HCQIA [statute] to address “a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the

Covenant Med. Ctr., 822 F. Supp. 1361, 1377 (N.D. Iowa 1997) (fair notice and hearing if hospital followed bylaws). 86. Peper, 207 P.3d at 884. 87. Id. 88. Id. 89. Id. 90. Id. 91. Id. 92. Id. at 888. 93. Id. at 888.

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incompetent

There are no bright-line rules as to the procedural requirements that should be given to a physician during peer reviews. Yet, there are some generalities that can be made to determine whether peerreview procedures will comport with HCQIA. At a minimum, physicians should not be abruptly summoned before a peer-review committee without warning and summarily stripped of their privileges for no articulated reasons.95 To the contrary, a peer review decision should be the culmination of a deliberate and considered process, one in which the physician had many opportunities to present opposition and, presumably, to settle the matter on the terms recommended in succession by the internal reviewers.96 D.

“Reasonable Belief That the Action Was Warranted”: Do Facts Support Action?

The fourth prong for establishing HCQIA immunity requires the facts to support initiating a peer review against a physician.97 Courts recognize that a “reasonable belief’“ standard applies to this prong of the Act.98 It requires that health-care participants believe their actions would further quality health care and are warranted by the facts available to them.99 Courts have held that the standard is based on an objective test: The “reasonable belief” standard is satisfied “if the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their actions would restrict incompetent behavior or would protect patients.”100 94. Id. at 889 (referring to 42 U.S.C.A. § 11101(2) (Westlaw 2016)). 95. See id. at 888. 96. Hurwitz, 103 A.3d at 303–04. 97. 42 U.S.C.A. § 11112(a)(4) (Westlaw 2016) (stating that, for the purposes of immunity, a peer review must be “in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts”). 98. See, e.g., Peper, 207 P.3d at 887. 99. Id. at 885. 100. Parmintuan v. Nanticoke Mem’l Hosp., 192 F.3d 378, 389 (3d Cir. 1999); see also Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 635 (3d Cir. 1996)

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Essentially, the “reasonable belief” standard is fact sensitive. In general, the peer review should not be based on false and misleading documents which are prepared without knowledge of all of the relevant facts. The evidence should include the following: (1) information provided by the doctors, nurses, and medical personnel who have knowledge of the physician’s care; (2) each stage of review should justify actions taken against the physician for the alleged conduct; and (3) personal bias and economic competition should not color the peer review.101 In summary, the peer review must be examined in its totality and the entire multi-step, fact-finding process should satisfy the HCQIA standard. There should be objective reasonableness. Summers v. Ardent Health Services102 is instructive. In Summers, the court stated that the physician’s allegations of bad faith and the failure of the ad hoc committee to interview the caseworker or patient at one stage of the peer-review process did not meet the “reasonable belief” standard. The court stated: Plaintiff must do more than identify one part of the investigation—the failure of the ad hoc committee to interview Patient B and the caseworker—that could have been more thorough . . . or argue that the peer review action was taken in bad faith . . . Plaintiff must identify fallacies in the fact-finding process that render it unreasonable as a whole.103 IV.

HOW DOES HCQIA INTERFACE WITH ALTERNATIVE DISPUTE RESOLUTION?

HCQIA requires that any hearing must be conducted by an arbitrator, a hearing officer, or panel of individuals who are not in direct competition with the physician.104 At its core, HCQIA emphasizes that the hearing officer, who presides over the peer review, should be neutral and “not in direct economic competition with the physician involved.”105 In general, hospitals may select other (quoting H.R. REP. NO. 99-903, at 10 (1986), as reprinted in 1986 U.S.C.C.A.N. at 6393). 101. Johnson v. Christus Spohn, 2008 WL 375417, at *8 (S.D. Tex. 2008). 102. 257 P.3d 943 (N.M. 2011). 103. Id. at 951. 104. 42 U.S.C.A. § 11112(b)(3)(A)(i)–(iii) (Westlaw 2016). 105. 42 U.S.C.A. § 11112(b)(3)(A)(iii) (Westlaw 2016).

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physicians on staff at the hospital or another high-level hospital employee to preside over a peer review. From a physician’s standpoint, using hospital staff may be problematic because of the physician’s perception (correct or not) that other staff physicians have an innate economic incentive to deprive another physician of staff privileges.106 Moreover, high-level hospital employees are even less neutral because their compensation and livelihood is closely tied to the hospital. Thus, ADR should offer an excellent alterative to resolve peer review issues. A.

Alternatives in Dispute Resolution: Which Process Works Best?

When considering the use of ADR, it is important to review the variety of alternatives to traditional dispute resolution or litigation. For example, in the full spectrum of ADR, negotiation is at one end of the continuum, allowing the parties in the dispute to resolve their issues directly with each other. This allows for the greatest control of the process by the parties, and the greatest flexibility in outcomes but does not guarantee certainty of the resolution.107 The undesired outcome of negotiation could be that of an impasse, where no agreement is reached. At one end of the spectrum, mediation, has become the oftenused alternative to direct negotiation, whereby a neutral third party can assist the parties in their negotiation to produce an agreement that is mutually acceptable.108 The mediator often helps the disputants focus on their mutual and separate interests, explores a variety of options to meet those interests, and helps each recognize the costs of not reaching an agreement.109 Many times, that alternative may be worse than a purported compromise resulting in mutual agreement.110 106. Chudacoff v. Univ. Med. Ctr., 954 F. Supp. 2d 1065, 1082 (9th Cir. 2013) (stating the court’s recognition that peer review committees are more susceptible to political influence because the members work at the same hospital as the physician challenging their decisions and are his competitors in a small medical community). 107. Thomas J. Stipanowich, The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution, 8 NEV. L.J. 427, 447 (2007). 108. See Goals of Mediation, MEDIATE.COM (2016), http://www.mediate.com/divorce/pg13.cfm. 109. See Tanya Glaser, The Mediation Process: Practical Strategies for Resolving Conflict, BEYONDINTRACTABILITY.Org (2016), http://www.beyondintractability.org/bksum/moore-mediation. 110. See id.

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The largest downside of mediation is that there is no guarantee of an agreement. Again, an impasse could result where no agreement is reached between the parties. At the other end of the spectrum, arbitration is the quasi-judicial process used when the parties are in need of a final determination to resolve the dispute.111 This allows for a due process hearing conducted by a neutral third party, who, after hearing testimony and cross-examination, renders an award that is generally binding on the disputing parties.112 The award may have a decision attached that explains the award to various degrees, up to that of an appellate decision in litigation. Advantages of arbitration (over traditional litigation) include that the process is often faster, less expensive, and can be organized in a fashion desired by the parties (with respect to discovery, evidence, witnesses, and even the conduct of the hearing or the selection of the arbitrator).113 More importantly, the process can be confidential and avoids the public record created by litigation.114 B.

Is the Purpose of Peer Review and HCQIA Quality or Improvement?

As noted earlier, “[t]he purpose of this legislation is to improve the quality of medical care by encouraging physicians to identify and discipline other physicians who are incompetent or who engage in unprofessional behavior.”115 A distinction ought to be made between the two distinct objectives of the legislation. If improvement of the quality of medical care is primary, the process used may be very different from that used to discipline incompetent and unprofessional physicians. In advocating the use of mediation, Edward A. Dauer and Leonard J. Marcus discussed the use of mediation to resolve medical

111. Stipanowich, supra note 107, at 427. 112. About Mediation and Other Methods of Dispute Resolution, BOSTONLAWCOLLABORATIVE.COM, http://bostonlawcollaborative.com/blc/faqs/ about-mediation-and-other-methods-of-dispute-resolution.html (last visited July 21, 2016). 113. Id. 114. Id. 115. H.R. REP. NO. 99-903 (1986), 1986 WL 31972.

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malpractice disputes.116 In medical malpractice cases, the objective is to provide some sort of remedy to the victims or beneficiaries of the physician’s inappropriate activity.117 Essentially, the tort of negligence occurs when a doctor commits an act that results in harm to the patient.118 In traditional litigation, the typical remedy would be money damages.119 Mediation, however, has often led to a variety of outcomes such as an apology, recognition of errors made, an understanding of the patient’s perspective, and frequently a change in methods of practice or procedure by the medical provider.120 The effort of quality improvement “is by contrast a ‘backward march of whys’ inquiring about the underlying causes of errors to determine where changes can be made for the future.”121 The strategy of quality improvement system design, by contrast, is to recognize that errors occur, to recognize that people work within systems, and to design the systems to do two things: (1) to make it difficult for individuals to make errors and (2) to make the whole system capable of “absorbing” individuals’ errors when they occur by identifying and correcting errors before they can be harmful. Even when a doctor has committed an error of judgment or skill, a systems approach demands to know how and why that infraction came about.122 If peer review and HCQIA are to focus on quality improvement, mediation seems to offer the best alternative. A neutral mediator can assist the parties to focus on the future, rather than address exclusively the past. Instead of merely assessing blame or fault, the parties will be free to direct their efforts at preventing the problem from reoccurring. Patients’ perceptions often determine how they view the quality of the medical services provided. Those perceptions may be the result of a misunderstanding between the doctor and patient, or a 116. Edward A. Dauer & Leonard J. Marcus, Adapting Mediation to Link Resolution of Medical Malpractice Disputes with Health Care Quality Improvement, 60 L. & CONTEMP. PROBS. 185 (1997). 117. Id. 118. See id. at 199. 119. Id. at 201. 120. Id. at 199. 121. Id. at 194–95. 122. Id. at 195.

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miscommunication that leads the patient to be offended by the poor bedside manner of the health care provider. The physician may have no idea that he or she offended the patient by the way they spoke or dealt with their issues. If peer review took on the characteristics of mediation, an exchange between peers could lead to a better understanding of the issues and how they might be addressed going forward: For its part, mediation, when properly employed, can be private, integrative, safe, nonjudgmental, and flexible in scope, process and outcome. It can be a safe harbor with therapeutic potential, and can offer its participants the opportunity to address the source as well as the consequence of the immediate problem. Mediation may, in short, offer a process whose traditional attributes are consistent with, rather than antithetical to, the requisites of quality improvement.123 C.

Is the Purpose of Peer Review and HCQIA to Discipline Physicians?

If the purpose of peer review and HCQIA is primarily to discipline incompetent and non-professional physicians, then a form of arbitration would be more appropriate. HCQIA requires that any hearing must be conducted by an arbitrator, a hearing officer or panel of individuals who are not in direct competition with the physician.124 Arbitrators or other neutrals could be determined in advance, or there could be ad hoc appointment of arbitrators from associations such as the American Arbitration Association, Judicial Arbitration and Mediation Services, Endispute, or the National Center for Dispute Resolution. Alternatively, if no agreement could be reached, hospitals and physicians could also elect to use individuals or panels from these associations by mutual agreement or appointment. Protocols could be developed to address admission to the panel, maintaining neutrality, and most importantly, training needed to serve in this capacity and in understanding complex issues in the delivery of health care. Physicians and hospitals would have a role in determining the expertise and/or credentials needed to serve as an arbitrator. In this regard, the parties have the advantage of having a 123. Id. at 199. 124. 42 U.S.C.A. § 11112(b)(3)(A)(i)–(iii) (Westlaw 2016).

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true expert in the position of decision-maker (unlike trial judges of general jurisdiction). They would also have the power to review, with the arbitration association, the record of the arbitrator and the possibility of removing the arbitrator for conflicts of interest or inappropriate conduct. The arbitral process could be designed by the parties themselves, addressing every aspect of peer review (within the strictures of HCQIA), including the nature of the hearing, the due process requirements, and the proposed outcomes. The type of arbitral award and the scope of review could also be addressed. D.

Perhaps an Optional Approach?

Given the alternatives of mediation and arbitration, and the characteristics of each that may incorporate peer-review procedures, it may make sense to bifurcate the process by the types of issues. For example, if the issue deals with problems in the delivery of health care resulting from the physician’s conduct, then a mediation approach would seem to be the best alternative to prevent it from happening again. By contrast, if the issue deals with a physician whose conduct was so outrageous that his or her continued practice is called into question, then it appears that a form of arbitration would be best. The difficulty will be in deciding what type of case is at issue before beginning peer review. E.

Additional Training May Be Necessary.

As the peer review process expands to external peer review neutrals, the question of competence in both dispute resolution and in health care regulatory compliance becomes an issue. When an external neutral is utilized, does that mediator or arbitrator have the ability to deal with the volume of concerns facing health care providers, from privacy and security of handling personal health information to an understanding of appropriate medical procedures? The Model Standards of Conduct for Mediators (Promulgated by the American Bar Association, ADR Section; the American Arbitration Association, and the Society of Professionals in Dispute Resolution) provides in Standard IV: “Competence: A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.”125 Similarly, the ABA/AAA Code of Ethics for Arbitrators requires the highest level of 125. MODEL STANDARDS OF CONDUCT FOR MEDIATORS (AM. BAR ASS’N 2015).

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competence for arbitrators. Therefore, neutrals, though competent in dispute resolution processes, must also be subject-matter experts to serve in peer review in this ever complicated health care arena. If the peer review neutral has his or her primary expertise in the health care profession, he or she must also develop the skills to be a mediator or arbitrator. This would entail the ability to conduct a dueprocess hearing, rule on evidentiary issues, and to be able to render an award if serving as an arbitrator. If functioning as a mediator, the third-party must have the skill to discern the issues involved, the respective interests of the parties, and to assist in formulating mutually-agreed-upon solutions. It is often said that this entails more of an art than a science. Provider agencies will be able to provide training for those health care professionals to also serve as third-party neutrals. V.

HCQIA AND PRIVACY.

In the professional peer-review hearings, patient health care records can often be a useful tool for physicians. For example, if a doctor is accused of not following certain hospital standards and is referred to a peer-review hearing, he or she may wish to produce patient records of other doctors in his practice in order to prove that the treatment or level of care he or she provided was not substandard. When patient records are being transmitted or disclosed to a third party, HIPAA will be a concern.126 HIPAA defines and limits the circumstances in which protected health information may be used or disclosed by covered entities.127 The interplay that arises between HCQIA and HIPAA presents a pressing issue: while the medical peer review and HIPAA both aim to promote “high quality healthcare,” HIPAA tries to protect patient privacy and the peer-review process aims to give the medical community the tools to resolve disputes internally.128 Because there is a complex interplay between these two rules, it is important for health care practitioners to have a robust compliance system to ensure that peer reviews are given the proper information without running afoul of HIPAA disclosure prohibitions.

126. 42 U.S.C.A. § 1320a-7e(b) (Westlaw 2016). 127. Id. 128. 42 U.S.C.A. § 1320c-9(a) (Westlaw 2016).

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The 500 Pound HIPAA in the Peer Review Room.

Importantly, HIPAA and HCQIA do not technically conflict; however, the purpose of HIPAA is, as one court put it, “to safeguard individually identifiable health information . . . and while patients enjoy heightened privacy protection, covered entities . . . must adhere to the significant, time-consuming, often convoluted, and administratively and precedentially undeveloped compliance requirements.”129 HCQIA, on the other hand, specifically requires the free exchange of information.130 In Freilich v. Upper Chesapeake Health, Inc.,131 the Court specifically noted that the underlying purpose of HCQIA was to ensure that unscrupulous and incompetent doctors could not simply move to a new state and begin practicing medicine: The legitimacy of Congress’s purpose in enacting the HCQIA is beyond question. Prior to enacting the HCQIA, Congress found that “[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care . . . [had] become nationwide problems,” especially in light of “the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance.” 42 U.S.C. § 11101. The problem, however, could be remedied through effective professional peer review combined with a national reporting system that made information about adverse professional actions against physicians more widely available.132 Thus, the two laws have competing purposes: HCQIA seeks to allow the free flow of information among regulatory bodies, whereas HIPAA seeks to limit disclosure of information. Indeed, as stated above, there is no direct legal conflict between the two rules; the HIPAA privacy rule protects all individually identifiable health information held or transmitted by a covered entity 129. United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., 2004 WL 2009416, at *5 (D.D.C. May 17, 2004). 130. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 212 (4th Cir. 2002). 131. Id. at 205. 132. Id. at 211.

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or its business associate in any form or media.133 The rule prohibits an entity from using or disclosing protected health information unless authorized by patients but specifically creates an exception where this prohibition would result in unnecessary interference with access to quality health care or with certain other important public benefits or national priorities.134 This includes the disclosure of protected information for “treatment, payment, or health care operations.”135 A peer review conducted pursuant to the rules and procedures of HCQIA would be considered a “health care operation” and exempt from the anti-disclosure provisions of the HIPAA privacy rule. In fact, the two statutes have even been considered as part of a single statutory framework governing health care.136 In at least one case, albeit unreported, the Eastern District of Tennessee stated that HIPAA and HCQIA, although enacted at different times pertained to the same subject.137 Thus, they should be interpreted in light of each other since they have a common purpose related to health care policy: Because the HIPDB [HCQIA] and the relevant provisions of HIPAA were modeled after the NPDB and the relevant provisions of HCQIA, however, the two statutes are to be considered in pari materia. Accordingly, and for purposes of the Motion before it, the Court will construe the statutes and their respective corresponding regulatory frameworks as such, and will consider judicial interpretations of relevant provisions of the HCQIA and NPDB as persuasive with regard to identical or similar provisions of the HIPAA and HIPDB.138 The court ultimately concluded that neither HIPAA nor HCQIA gave rise to a private right of action.139 Importantly, the court reached this conclusion by considering the two laws together and finding that case law interpreting HIPAA is instructive in interpreting HCQIA, 133. 45 C.F.R.A. § 164.502(a) (Westlaw 2016). 134. § 164.502(b)(2). 135. § 164.506 (otherwise known as the “T.P.O.” exception). 136. Carter v. Bluecross Blueshield of Tenn., 2006 WL 1129390, at *1 n.1 (E.D. Tenn. Apr. 24, 2006). 137. Id. 138. Id. 139. Id. at *5.

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and vice-versa.140 Thus, the interplay between HIPAA and HCQIA is complex—despite often competing goals, the two statutes can be reconciled and interpreted together as a single regulatory whole. B.

Privacy and Litigation: How Far Does the Peer Review Privilege Extend?

The difficulties involving privacy issues do not arise from the peer review. Instead, privacy issues emerge during subsequent lawsuits in which physicians seek to discover or disclose information that was disclosed during the peer-review process. Most commonly, these cases are in the form of a medical malpractice suit filed by the patient, and implicate state law peer-review enactments, which most state legislatures have passed.141 In Michigan, for example, the legislature enacted Michigan Complied Laws § 331.531.142 The purpose of this statute was to “foster the free exchange of information in investigations of hospital practices and practitioners, and thereby reduce patient mortality and improve patient care within hospitals.”143 These peer-review statutes often provide qualified immunity to protect peer-review committee reports. The findings of these peer reviews are often also reported to the National Practitioners Data Bank, which is accessible by hospitals and other entities throughout the country but not available to the general public.144 The recent Michigan Supreme Court ruling in Krusac v. Covenant Medical Center145 is an excellent exemplar of the interplay between peer review and privacy issues. This case also represents the complex health care policy issue related to a patient’s right to know and the confidentiality of the peer-review process.146 Krusac 140. Id. 141. Kym Oltrogge, Note, An Ounce of Prevention is Worth a Pound of Cure: The Need for States to Legislate in the Area of Hospital Professional Review Committee Proceedings, 46 WASH. & LEE L. REV. 961, 993 n.192 (1989). 142. MICH. COMP. LAWS ANN. § 331.531 (Westlaw 2016) (originally enacted in 1980). 143. Feyz v. Mercy Mem’l Hosp., 475 Mich. 663, 666 (2006) (HIPAA, too, provides that administrators furnish information to “the National Practitioner Data Bank established pursuant to the Health Care Quality Improvement Act of 1986 (42 U.S.C.A. 11101 et seq.)”); 42 U.S.C.A. § 1320a-7e (Westlaw 2016). 144. Frengell v. Intercare Cmty. Health Network, 2010 WL 4483656 (Mich. Ct. App. Nov. 9, 2010). 145. 497 Mich. 251 (2015). 146. See id.

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involved a medical-malpractice suit brought by the representatives of a woman who had died shortly after “roll[ing] off the operating table” during a cardiac catheterization.147 After the incident, Covenant Medical Center had created an incident report for the purpose of conducting a peer-review investigation under Michigan’s HCQIA analog.148 The plaintiff sought to have the trial court conduct an in-camera review of the report and, while keeping the report confidential, “provide plaintiff with the facts contained in it.”149 The trial court agreed, and provided the plaintiff with the facts but not the conclusions or actions taken as a result.150 On appeal, the Michigan Supreme Court overruled a prior appellate court case.151 That case, Harrison v. Munson Health Care, Inc.,152 said that the peer-review privilege in Michigan did not cover “[o]bjective facts gathered contemporaneously with an event,”153 by reasoning that “[t]o hold otherwise would grant risk managers the power to unilaterally insulate from discovery firsthand observations that the risk managers would prefer remain concealed. The peer review statutes do not sweep so broadly.”154 The Michigan Supreme Court disagreed; explicitly overruled Harrison; and held that all records, data, and knowledge collected in a medical peer review, in furtherance of its statutorily mandated purpose, will remain private and privileged.155 State courts are divided on this very question. While Michigan has ruled that its peer-review statute broadly protects both factual findings and conclusions made in a peer-review report, other states have limited the privilege to the material conclusions of such peer reviews.156 In Arizona, the peer-review enactment is found in ARIZ. 147. Id. at 254. 148. Id. 149. See id. 150. Id. at 255 151. Id. at 263. 152. 304 Mich. App. 1 (2014). 153. Id. at 32. 154. Id. at 34. 155. Krusac, 497 Mich. at 263. 156. Compare id. (stating, “all records, data, and knowledge collected for or by a peer review committee . . . “ are privileged.) with John C. Lincoln Hosp. & Health Ctr. v. Super. Ct. ex rel. Maricopa, 159 Ariz. 456, 459 (1989) (relying on ARIZ. REV. STAT. ANN. § 36-445.01(A) (Westlaw 2016) and ruling that only “‘discussions, exchanges, and opinions’ or ‘proceedings, records and materials prepared in connection with the review[s]’” are protected by privilege).

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REV. STAT. ANN. §§ 36–445 et seq.157 and the state courts there have, indeed, found that the act does not protect “raw factual information which may trigger such discussions, exchanges and opinions.”158 On the other hand, a federal court in Georgia described the complete privilege of peer-review reports with particular eloquence, holding, “[i]n short, the peer review statutes confer upon peer review organizations the qualities of a black hole; what goes in does not come out, and, unless the information exists in duplicate in the surrounding orbit, nothing that went in is discoverable.”159 Since medical malpractice cases are most often brought under state law, practitioners must be cognizant of the rule in their particular jurisdiction. C.

NPDB Reports: Confidential but Discoverable.

Courts often weigh a conflict between the need for privacy and the need for full disclosure of information. In the HCQIA context, this conflict often arises in the discovery of the NPDB incident reports, themselves. HCQIA provides a general restriction on disclosure of the reports. However, hospitals are not only permitted to view reports regarding health care practitioners, they are required to do so whenever the “health care practitioner applies for a position on its medical staff (courtesy or otherwise) or for clinical privileges at the hospital;” moreover, the hospitals are required to, again, request this information “[e]very 2 years for any health care practitioner who is on its medical staff or has clinical privileges at the hospital.”160 A derogatory NPDB report, therefore, can significantly impact a physician’s prospects for employment with, or staff privileging at a hospital. Consequently, practitioners have a significant incentive to dispute NPDB reports. In addition, the NPDB may provide information, upon request, to “[a]n attorney, or individual representing himself or herself, who has filed a medical malpractice action or claim in a state or Federal court or other adjudicative body against a hospital, and who requests information regarding a specific health care practitioner who is also 157. ARIZ. REV. STAT. ANN. §§ 36–445 et seq. (Westlaw 2016). 158. See John C. Lincoln Hosp. & Health Ctr. v. Super. Ct. ex rel. Maricopa, 159 Ariz. 456, 459 (1989) (relying on Humana Hosp. v. Super. Ct., 154 Ariz. 396 (1987)). 159. Doe v. UNUM Life Ins. Co. of Am., 891 F. Supp. 607, 610 (N.D. Ga. 1995). 160. 45 C.F.R.A. § 60.17(a)(1), (2) (Westlaw 2016).

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named in the action or claim.”161 The information may then be used “solely with respect to litigation resulting from the action or claim against the hospital.”162 Thus, there are two instances in which NPDB reports can be discovered: cases in which a doctor or health care practitioner challenges the accuracy of the report and cases in which a doctor’s qualifications or professional history are an issue in a claim or action. In Klaine v. Southern Illinois Hospital Services, the Illinois Supreme Court discussed the difference between confidential information and discoverable information.163 In that case, which was a medical malpractice action, Carol and Keith Klaine, the Plaintiffs, filed a malpractice action based on negligent credentialing of Dr. Frederick Dressen.164 In discovery, the Plaintiffs sought discovery of Dr. Dressen’s NPDB file, which the Hospital used in deciding to provide Dr. Dressen with credentials.165 The trial court agreed with the Klaines and ordered the file to be disclosed; the Hospital filed an interlocutory appeal, and after the appellate court affirmed the trial court’s order, the Hospital appealed to the Illinois Supreme Court.166 The Illinois Supreme Court again affirmed the trial court’s holding.167 The Court deftly explained the difference between confidentiality and discoverability, holding, “[i]nformation, though confidential, may be highly relevant to matters at issue in a trial and, therefore, critical to the truth-seeking process. Consequently, the confidential nature of information does not prevent it from being discoverable unless the plain language of the statute so provides.”168 HCQIA does not specifically provide that the NPDB reports are undiscoverable. On the contrary, the law provides that “[n]othing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure.”169 Under Illinois law, the Court held, the hospital would have been required to produce “information with respect to the [P]laintiffs’ negligent credentialing claim,” including 161. 162. 163. 164. 165. 166. 167. 168. 169.

Id. § 60.18(a)(1)(v). Id. Klaine v. S. Ill. Hosp Servs., 47 N.E.3d 966, 968 (Ill. 2016). Id. Id. Id. Id. at 975. Id. at 972. 42 U.S.C.A. § 11137(b)(1) (Westlaw 2016).

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the NPDB report.170 Thus, the Court concluded that “information reported to the NPDB, though confidential, is not privileged from discovery in instances where, as here, a lawsuit has been filed against the hospital and the hospital’s knowledge of information regarding the physician’s competence is at issue.”171 VI.

CONCLUSION

The HCQIA and its state analogs create a powerful set of tools to improve health care delivery across the country. However, such a broad law interacts in complicated ways with other rules and regulations. HCQIA has profound interactions with ADR procedures, HIPAA, and discoverability rules. Both health care and legal practitioners need to be cognizant of the jurisprudence in this area, particularly as health care is discussed, reformed, and practiced across the country.

170. Klaine, 47 N.E.3d at 974. 171. Id. at 975 (emphasis added).

COMMENT LET’S GET RID OF THIS FRACKING PROBLEM: WHY MICHIGAN SHOULD FOLLOW NEW YORK’S EXAMPLE AND BAN FRACKING NICHOLAS BROWN* ABSTRACT Hydraulic fracturing, or fracking, is an intense industrial process used to maximize the output of oil or natural gas from deepunderground sources. This Note explores fracking regulations at the federal, state, and municipal level. Additionally, this Note examines the history, development, and processes involved in fracking. The benefits of fracking will be discussed, as well as the unintended, often extremely damaging, consequences. Fracking is relatively new to Michigan, and the industry is growing rapidly. With this rapid growth and development, the question becomes how to regulate fracking in a manner that will be productive to oil and gas companies while still protecting the environment and keeping our communities safe. This Note will analyze this question and ultimately conclude that the best option is to ban fracking at the municipal level through the use of zoning ordinances. TABLE OF CONTENTS

I. INTRODUCTION .............................................................................. 142 II. BACKGROUND .............................................................................. 145 A. The Process of Fracking ................................................... 145 B. Fracking’s History ............................................................ 146 C. The Benefits of Hydraulic Fracturing .............................. 148 D. Environmental and Societal Impacts of Fracking ............ 149 a. Air Impacts .................................................................. 150 * Nicholas Brown is a third-year J.D. candidate at Western Michigan University Thomas M. Cooley Law School. He graduated from Northern Michigan University Magna Cum Laude with a Bachelor of Science in Political Science in 2013. As a law school student, Nicholas served as the Business Editor on WMUCooley Law Review for three terms and was a teaching assistant in Wills, Estates, and Trusts. A special thanks to Professor Beth Simonton-Kramer for all her help and guidance throughout the writing and editing process.

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b. Water Quality Impacts ................................................ 151 c. Earthquakes ................................................................. 152 d. Community Impacts .................................................... 152 e. Water Usage ................................................................ 154 E. New York’s Path to a Ban ................................................. 155 F. Current Fracking Regulations in Michigan...................... 157 III. ANALYSIS ................................................................................... 158 A. Protection of Water Resources is Better Accomplished by Prevention Now than Future Attempts to Cure ................ 158 B. How to Reach the Solution, Following New York’s Lead. 160 a. Federal Regulation of Fracking: The Quest for Energy Independence ...................................................... 161 b. A Statewide Ban is Best Achieved Through the Municipalities ........................................................... 164 IV. CONCLUSION .............................................................................. 168 I. INTRODUCTION Hydraulic fracturing, commonly known as fracking, is a process used to stimulate the flow of oil and natural gas from reservoirs deep underneath the earth’s surface.1 Fracking is used where oil and natural gas are trapped in rock formations with low permeability that are considered virtually inaccessible.2 Fracking was originally developed in the 1940s,3 and the technology and its use has dramatically increased since.4 With this increased use across the country, a myriad of environmental and social concerns have arisen, including, but not limited to: air impacts that could affect respiratory health, climate-change impacts, drinking-water impacts, soil and water contamination, earthquakes, and even birth defects and other health complications.5 Attempts to address these concerns have led to 1. See generally The Process of Hydraulic Fracturing, U.S. ENVTL. PROTECTION AGENCY, http://www2.epa.gov/hydraulicfracturing/process-hydraulicfracturing (last updated Oct. 16, 2015). 2. See Susan Hlywa Topp, Deep Shale Natural Gas Production in Michigan, 90 MICH. B.J. 32 (2011). 3. Barbara H. Garavaglia, Hydraulic Fracturing, 92 MICH. B.J. 58 (2013). 4. U.S. Oil & Gas Production On the Rise Thanks to Fracking, INST. FOR ENERGY RES. (Sept. 19, 2014), http://instituteforenergyresearch.org/analysis/u-soil-gas-production-continues-increase-due-hydraulic-fracturing/. 5. N.Y. STATE DEP’T OF HEALTH, A PUBLIC HEALTH REVIEW OF HIGH VOLUME HYDRAULIC FRACTURING FOR SHALE GAS DEVELOPMENT 4–7 (2014),

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regulations ranging from completely banning the practice of fracking to exempting it almost entirely.6 In most states, as well as under federal rules, fracking remains extremely under regulated.7 In defiance of this trend, on December 17, 2014, New York became the first state with significant natural gas resources to ban the practice of fracking.8 Also in late 2014, four municipalities, including Denton, Texas, which rests above the Barnett Shale, a gas-rich formation, voted bans on fracking into effect.9 From a regulatory viewpoint, banning fracking is starting to make sense as more research, studies, and reports showing the potential health risks are released.10 Despite the fracking process’s potential benefits, it remains cloaked in suspicion and controversy.11 In Michigan, the controversy takes on a different level of importance. Michigan is in the center of the Great Lakes Basin, surrounded by four out of five of these enormous bodies of freshwater.12 The Great Lakes contain 21% of the world’s supply of fresh water and 84% of North America’s supply of fresh water.13 “Roughly 10% of the U.S. population and more than 30% of the Canadian population” live in the Great Lakes http://www.health.ny.gov/press/reports/docs/high_volume_hydraulic_fracturing.pd f. 6. Compare Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in New York State, N.Y. TIMES (Dec. 17, 2014), http://www.nytimes.com/2014/12/18/ nyregion/cuomo-to-ban-fracking-in-new-york-state-citing-health-risks.html (noting that one state has completely banned the practice of fracking), with Amanda Skalski, Regulating Hydraulic Fracturing in Michigan: The Protection of Our Waters and Our People Hits Another Roadblock, 14 J.L. SOC’Y 277, 288 (2013) (noting that more federal regulations exempt fracking than regulate it). 7. Skalski, supra note 6, at 278. 8. Kaplan, supra note 6. 9. Wendy Koch, Could New York’s Fracking Ban Have Domino Effect?, NAT’L GEOGRAPHIC (Dec. 18, 2014), http://news.nationalgeographic.com/ news/energy/2014/12/141218-fracking-ban-new-york-states-oil-gas-drillingenergy-news/. 10. See id. 11. See Nicholas J. Schroeck, Hydraulic Fracturing and Protection of Freshwater Resources in the Great Lakes State, 24 IND. INT’L & COMP. L. REV. 113 (2014). 12. See Great Lakes Facts and Figures, U.S. ENVTL. PROTECTION AGENCY, https://www.epa.gov/greatlakes/great-lakes-facts-and-figures (last updated Sept. 29, 2015). 13. Id.

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Basin.14 The Great Lakes Basin supports a world-class fishery with 250 species of fish and provides drinking water for 40 million people.15 Even though these resources are vast, they are incredibly sensitive.16 Pollutants have devastating effects because the system drains at a very slow rate: less than 1% per year.17 For example, if fracking fluid were to contaminate Lake Superior, it would take 191 years for that pollutant to be purged from the Great Lakes Basin.18 Due to the fracking process’s alarming consequences on the environment and the fragile, delicate nature of the Great Lakes Basin, Michigan should ban fracking. Even though the possible economic benefits associated with fracking are great, the potential environmental and societal impacts are extreme and not fully understood.19 While an absolute guarantee of safety is not possible with complex industrial activities like fracking, at a minimum, there needs to be sufficient scientific evidence that the activity poses little threat to the communities and the environment surrounding fracking facilities before Michigan should allow the activity to proceed.20 This Note will first explore the history and the process of hydraulic fracturing. Then it will look into the benefits as well as the growing number of societal and environmental concerns involved in the fracking process. Next, this Note will take a look at how the federal government has handled the fracking regulations. This Note will continue by evaluating New York’s ban on fracking and how it was reached. Additionally, this Note will discuss Michigan’s current regulations on the fracking industry. Finally, this Note will discuss why fracking should be banned in Michigan and how to go about it, following New York’s lead.

14. Id. 15. About Our Great Lakes: Great Lakes Basin Facts, GREAT LAKES ENVTL. RESEARCH LABORATORY, http://www.glerl.noaa.gov/pr/ourlakes/facts.html (last visited June 10, 2016). 16. See Restoring the Great Lakes, U.S. ENVTL. PROT. AGENCY, https://www.epa.gov/greatlakes/restoring-great-lakes (last updated Nov. 30, 2015) (noting that although the Great Lakes are large, they are very sensitive to pollutants). 17. Id. 18. See About Our Great Lakes: Great Lakes Basin Facts, supra note 15. 19. See N.Y. STATE DEP’T OF HEALTH, supra note 5, at 11–12. 20. Cf. id.

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II. BACKGROUND A. The Process of Fracking Hydraulic fracturing is an industrial process designed to produce drastic environmental modification in order to maximize the output of oil or natural gas from deep underground sources.21 The process of fracking begins with the leasing of land, construction of the well site, and building of access roads.22 After this, a vertical well bore is drilled, acid is injected to produce and clean the bore, and steel and cement—laced with holes to allow the fracking fluid to permeate the shale—line the bore.23 This vertical well bore can be drilled as deep as 10,000 feet below the Earth’s surface, as is the case with the recent fracking into the Collingwood Shale play24 in northern Lower Michigan.25 From the vertical well bore, horizontal legs of the well— perpendicular to the vertical section—are drilled to extend 5,000 to 6,000 feet.26 After the well is drilled, “millions of gallons of water” are trucked in.27 In the case of the Collingwood Shale play, five million gallons of water or more may be needed to frack a single well.28 This water is then mixed with hundreds of chemicals.29 Some of the more controversial chemicals that are frequently used in fracking fluid are toluene, ethyl benzene, xylene,30 arsenic, benzene, and formaldehyde.31 This is by no means an exhaustive list.32 Sand is also 21. See Skalski, supra note 6, at 278, 280. 22. Id. at 280. 23. Id. 24. “Shale gas is found in shale ‘plays,’ which are shale formations containing significant accumulations of natural gas and which share similar geologic and geographic properties.” What is Shale Gas?, GEOLOGY.COM, http://geology.com/ energy/shale-gas/ (last visited Mar. 20, 2015). 25. Topp, supra note 2, at 32. 26. Id. 27. Skalski, supra note 6, at 280. 28. OFFICE OF GEOLOGICAL SURVEY, HYDRAULIC FRACTURING OF NATURAL GAS WELLS IN MICHIGAN 2 (2011), https://www.michigan.gov/documents/deq/ Hydrofrac-2010-08-13_331787_7.pdf. 29. Morgan R. Whitacre, An Environmentally Hazardous Process: Why the United States Should Follow France’s Lead and Ban Hydraulic Fracturing, 23 IND. INT’L & COMP. L. REV. 335, 337 (2013). 30. Skalski, supra note 6, at 284. 31. U.S. ENVTL. PROT. AGENCY, STUDY OF THE POTENTIAL IMPACTS OF HYDRAULIC FRACTURING ON DRINKING WATER RESOURCES: PROGRESS REPORT

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added to the mixture to hold open the fissures caused by the fracking process.33 The mixture is then injected into the well at high pressures in order to create or increase fractures in the targeted areas.34 This results in gas escaping that flows out of the well bore on to larger pipelines.35 Over a period of two weeks, an estimated 9% to 35% of the fracking fluid flows back to the surface, while the rest remains behind with the potential to migrate to neighboring water sources.36 All the water used—whether it is returned to the surface or remains in the earth—is permanently contaminated and cannot be returned to the water cycle.37 It cannot be reused because, in many cases, the fracking waste becomes radioactive and water treatment technology is not sophisticated enough to remove all the chemical additives used in fracking fluid.38 Michigan currently views the radioactive waste produced from fracking as a lucrative opportunity rather than a detriment and has been accepting the fracking waste sludge from other states for disposal in Wayne County for years.39 B. Fracking’s History Hydraulic fracturing was first developed in 1949 by Halliburton—one of the largest oil field service companies with operations in more than eighty countries40—to release oil and gas 197–228 (2012), https://www.epa.gov/sites/production/files/documents/hfreport20121214.pdf. 32. Id. (the exhaustive list of chemicals known to be used in fracking fluid spans over thirty pages). 33. See Skalski, supra note 6, at 280. 34. Topp, supra note 2, at 32. 35. Emily C. Powers, Fracking and Federalism: Support for an Adaptive Approach That Avoids the Tragedy of the Regulatory Commons, 19 J.L & POL’Y 913, 920 (2011). 36. Id. 37. Nicholas Schroeck & Stephanie Karisny, Hydraulic Fracturing and Water Management in the Great Lakes, 63 CASE W. RES. L. REV. 1167, 1181 (2013). 38. Id.; see also Jim Lynch, Mich. Panel: No Changes in Handling Radioactive Sludge, THE DETROIT NEWS (Feb. 13, 2015), http://www.detroitnews. com/story/n0065ws/environment/2015/02/13/mich-panel-changes-handlingradioactive-sludge/23338329/ (noting that the waste sludge produced from hydraulic fracturing is radioactive). 39. Lynch, supra note 38. 40. Corporate Profile, HALLIBURTON, http://www.halliburton.com/enUS/about-us/corporate-profile/ default.page?node- id=hgeyxt5p (last visited May 26, 2016).

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from conventional wells that had gone dry.41 This type of fracking used only vertical fracturing, with no horizontal well branches, until relatively recently.42 In the late 1990s, companies began using horizontal legs off the vertical bore of the well and were able to reach oil- and natural gas-rich formations far below the Earth’s surface previously thought unreachable or, at a minimum, not cost effective.43 In 2000, shale gas production made up 1% of natural gas production in the United States.44 In 2011, shale gas production was up to 10% and is expected to make up 34% to 56% of natural gas production in the United States by the year 2030.45 This is important because shale gas is produced using fracking.46 The Antrim Shale play is a shallow-shale formation primarily located in the northern lower peninsula of Michigan, which contains vast amounts of natural gas.47 Twelve thousand Antrim Shale wells have been fracked in Michigan.48 Recently, in 2010, the first successful well was drilled to the deep Collingwood Shale play, subsequently leading to the most lucrative mineral lease auction in Michigan history that opened the door to many more fracking opportunities in the mineral-rich Great Lakes State.49 Michigan’s voters have become involved in the fracking debate, and groups opposed to fracking have been working on getting the requisite number of signatures to have a ballot initiative appear in an election.50 So far, they have failed in 2012, 2014, and 2016.51

41. 42. 43. 44. 45. 46. 47.

Skalski, supra note 6, at 279. Garavaglia, supra note 3, at 58. Powers, supra note 35, at 919. Topp, supra note 2, at 32. Id. at 32–33. Id. at 33. Antrim Shale—Antrim Shale Map—Michigan Oil & Natural Gas, OILSHALEGAS.COM, http://oilshalegas.com/ antrimshale.html (last visited June 10, 2016). 48. Topp, supra note 2, at 33. 49. Id. 50. Michigan Fracking Ban Initiative (2016), BALLOTPEDIA, http:// ballotpedia.org/Michigan_Fracking_Ban_Initiative_%282014%29 (last visited June 10, 2016). 51. Id.

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C. The Benefits of Hydraulic Fracturing Proponents of fracking argue four reasons why fracking is beneficial and should not be banned.52 The first is that it is now possible to access energy in America that was previously inaccessible, thereby reducing the demand for foreign oil.53 The second is that fracking has been going on for over sixty years, and that experience has led to a safe procedure.54 Third, fracking reduces gas emissions that are harmful, and the horizontal drilling technique reduces the above-ground footprint that the oil and gas companies leave behind.55 Fourth, fracking brings jobs and prosperity to small communities that need it.56 The largest benefit of using fracking is that it allows companies to extract resources that were once inaccessible.57 This leads to an increase in energy independence from foreign sources of natural gas and oil.58 Proof of this is seen in a 9% jump in shale gas production in the United States from 2000 to 2011.59 Fracking has been going on for a long time, and it is useful and harmless in many situations.60 Companies, like Haliburton, have been using it successfully since the 1940s to get the most from their oil and gas wells.61 Fracking has been growing and increasing in efficiency since then, which gives it a rich history of scientific focus and development through the oil and gas companies.62 With an increase in fracking comes a larger supply of natural gas, which is a cleaner energy source than coal or fuel oil and therefore reduces greenhouse gas emissions.63 This means that even though 52. See The Good News at a Glance: Natural Gas–An Electric Win, ENERGY http://www.energyfromshale.org/ (last visited May 26, 2016). 53. Id. 54. Id. 55. Id. 56. Id. 57. Skalski, supra note 6, at 278. 58. Id. 59. Topp, supra note 2, at 32. 60. See The Good News at a Glance: Natural Gas–An Electric Win, supra note 52. 61. Skalski, supra note 6, at 279. 62. See The Good News at a Glance: Natural Gas–An Electric Win, supra note 52. 63. Joshua P. Dennis, The Emergence of Natural Gas and the Need for Cooperative Federalism to Address a Big “Fracking” Problem, 4 SAN DIEGO J. CLIMATE & ENERGY L. 253, 254 (2012–2013). FROM SHALE,

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natural gas production is on the rise in America, growing 37% from 1990 to 2012, methane emissions are falling.64 Also, surface disturbances are significantly reduced with horizontal fracturing because the horizontal method of drilling can access more area under the Earth’s surface with few aboveground perforations.65 Fracking also increases employment opportunities, supporting 2.1 million American jobs66 in depressed communities while economically benefitting landowners who lease to fracking operations.67 Fracking allows access to valuable resources that were previously worthless because they were out of reach.68 This naturally benefits landowners because their property is now much more valuable to oil and gas companies because of the use of fracking technology.69 D. Environmental and Societal Impacts of Fracking With a process that produces as much environmental change as fracking, the benefits come with some costs. The most recent government report on the impacts of fracking lists seven main groups of concern: air impacts, climate change impacts, drinking water impacts, soil and water contamination, surface water contamination, earthquakes, and community impacts.70 This study was completed based on impacts to New York, which has very similar natural gas resources and environmental resources as compared to Michigan.71 The Michigan Department of Environmental Quality (MDEQ) lists five major areas of concern for fracking: migration of gas or fracking fluid, water use, managing produced water, surface spills and general extraction activities, and the identification of the chemical additives in the fracking fluid.72 For the most part, these two sets of 64. Innovation and Methane Emissions, ENERGY FROM SHALE, http:// www.energyfromshale.org/articles/ innovation-and-methane-emissions (last visited May 26, 2016). 65. Powers, supra note 35, at 921. 66. The Good News at a Glance: Natural Gas–An Electric Win, supra note 52. 67. Skalski, supra note 6, at 285. 68. Dennis, supra note 63, at 254. 69. See id. 70. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 4–12. 71. See generally Lower 48 States Shale Plays, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/ oil_gas/rpd/shale_gas.pdf (last updated Apr. 13, 2015) (noting the relatively similar shale plays in Michigan as compared to the New York area, as well as both states relations to vast fresh water resources). 72. OFFICE OF GEOLOGICAL SURVEY, supra note 28, at 2–3.

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environmental concerns overlap, except in Michigan there seems to be more of a concern about water usage because of the increased depth of wells and water consumption related to the fracking of the Collingwood Shale formation.73 a. Air Impacts The problems with fracking that impact air quality are primarily related to uncontrolled leaks of various chemicals.74 Studies and documentation by state authorities provide evidence of uncontrolled methane, particulate matter, and other volatile organic compounds from well pads.75 Another source of harmful emissions is the heavy vehicle traffic associated with fracking.76 It takes many trips with many trucks to transport the millions of gallons of water and chemicals, and trucks are often lined up and idling while waiting to get to the well pad.77 This traffic and idling contributes to intermittently high dust and benzene concentrations as far as 625 feet from the well pad.78 The climate change impacts associated with fracking stem from all the harmful emissions, specifically methane gas releases, into the atmosphere.79 Another major air quality concern is the release of hydrogen sulfide that is trapped in the same shale formation that the natural gas and oil fracking operations are targeting.80 According to the MDEQ, approximately 13% of producible oil wells had hydrogen sulfide levels of 300 parts per million or more.81 This is enough hydrogen sulfide to cause symptoms between “[m]arked conjunctivitis and respiratory tract irritation after 1 hour of exposure” and “[l]oss of consciousness and possibly death in 30 minutes to 1 hour.”82 Oil and 73. Id. 74. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 5. 75. Id. 76. Id. 77. Id. at 25. 78. Id. at 5. 79. Id. 80. See generally MICH. DEP’T OF ENVTL. QUALITY, Hydrogen Sulfide (H2S)– Q & A, MICHIGAN.GOV, http://www.michigan.gov/deq/0,4561,7-135-3311_4111_ 4231-9162—,00.html (last visited June 10, 2016). 81. Id. (noting that of the 10,652 producible oil wells in Michigan, 1,360 had hydrogen sulfide levels exceeding 300 parts per million, which equates to about 13% of the wells). 82. Id.

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gas companies currently put out signs near fracking facilities with flags attached to show the hydrogen sulfide in the air; a green flag means low levels, a yellow flag means moderate levels, and a red flag means dangerous levels.83 The problem with this system is the 15minute, short-term exposure limit of hydrogen sulfide is five parts per million, while a green flag indicates “[w]ork locations where atmospheric concentrations of H2S are less than 10ppm,” which means a green flag does not actually signal that it is safe to breathe the air.84 b. Water Quality Impacts Drinking water sources are impacted by fracking due to the migration of gas or fracking fluid, as well as surface spills contributing to soil and water contamination.85 Instances of migration of methane and other chemicals into clean water sources because of faulty well construction have been documented in several studies.86 One of the worst examples of contamination occurred in Dimock, Pennsylvania, where residents reported water turning brown and making people sick, private wells spontaneously combusting, pets and horses mysteriously losing their hair, showers causing dizziness and fainting, and property values plummeting to the point of worthlessness.87 In several homes, residents of Dimock and the surrounding areas were able to turn on their sink and light their tap water on fire.88 Surface spills and inadequate techniques of dealing with wastewater are other ways that clean water sources can be negatively impacted by fracking.89 Studies provide evidence of “stray gas contamination, . . . accumulation of radium isotopes in some disposal 83. Oil and Gas Well Drilling and Servicing eTool, OCCUPATIONAL SAFETY & HEALTH ADMIN., https://www.osha.gov/SLTC/etools/oilandgas/general_safety/ h2s_precautions.html (last visited June 10, 2016). 84. Id.; Monitoring Hydrogen Sulfide (H2S) to Meet New Exposure Standards, DRAGER, http:// www.draeger.com/sites/assets/PublishingImages/Generic/sidebarteaser/CA-US/Hydrogen_Sulfide_White_Paper_81297.pdf (last visited May 5, 2016). 85. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 4–6. 86. Id. at 6. 87. Christopher Bateman, A Colossal Fracking Mess, VANITY FAIR (June 21, 2010), www.vanityfair.com/ news/2010/06/fracking-in-pennsylvania-201006; see also GASLAND (HBO Documentary Films 2010). 88. GASLAND, supra note 87. 89. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 6.

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and spill sites[, and] chemical signals of brine from deep shale formations” being detected in drinking water.90 All of these can very seriously affect the quality of fresh water.91 c. Earthquakes Recent developments in fracking research reveal that the fracturing process can cause minor earthquakes.92 The most significant example of these fracking-induced earthquakes occurred in Ohio in late 2011 when two earthquakes, occurring within days of each other, caused the state to close all fracking operations in the area.93 Although the relatively mild earthquakes thus far associated with fracking pose only moderate health and public safety risks, it would be difficult to argue that artificially fracturing the earth enough to cause seismic activity is not a concern.94 The problem is not only the earthquakes but also in predicting them. Scientists know of many minor faults in areas where fracking is occurring, but it is likely that there are many smaller or deeply buried ones yet to be discovered.95 d. Community Impacts American history is replete with examples of rapid, concentrated, and largely unregulated increases in extractive resource development, and the negative effects that come with it—especially in rural communities.96 The short-term impacts start with basic quality-of-life problems such as odor, noise, and increased traffic in areas surrounding fracking operations.97 Increased traffic leads to increased accidents, injuries, and deaths.98 According to a recent study, traffic accident rates increased 15% to 65% after heavy fracking commenced in Pennsylvania areas.99 90. Id. 91. Id. 92. Id. 93. Maggie Schneider, 4 Ohio Fluid-Injection Wells Cannot Open in Wake of Quake, CNN (Jan. 1, 2012), http://www.cnn.com/2012/01/01/us/ohio-earthquake/ index.html. 94. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 6. 95. Schneider, supra note 93. 96. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 24. 97. Id. at 6. 98. Id. at 25. 99. Id.

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Long-term problems associated with fracking are potentially far more devastating. These problems start to develop when landowners in depressed communities are forced to choose between what seems like a large sum of money and the long-term environmental integrity of their community.100 Those who take the money often don’t realize the effect that having a fracking facility in their backyard has on property value, let alone the environmental impacts that go along with it.101 When the environment and societal costs get too high, the oil and gas company can simply vacate the property while the homeowner’s property is left worthless.102 Homeowners in this situation often desperately want to move, but it is not feasible to buy a new home when they are still paying off a mortgage on a worthless piece of land.103 There are also unfair discrepancies between what the oil and gas companies are paying for leased mineral rights and how much they are making.104 In some cases, landowners are taking $250 an acre when oil and gas companies can make up to $180,000 an acre annually.105 Long-term community impacts are not just economic in nature. Commonly reported health complaints among people living near fracking operations are “skin rash or irritation, nausea or vomiting, abdominal pain, breathing difficulties or cough, nosebleeds, anxiety/stress, headache, dizziness, eye irritation, and throat irritation in people and farm animals.”106 Adequate studies on the long-term health effects of fracking facilities on local communities either have not been conducted or are not yet complete.107 However, enough data has been gathered to link fracking operations to a statistically significant increase in low birth weight, congenital heart defects, and neural-tube defects.108

100. Skalski, supra note 6, at 286. 101. See Bateman, supra note 87. 102. Skalski, supra note 6, at 286. 103. Bateman, supra note 87. 104. Compare Skalski, supra note 6, at 286 (noting that one acre of leased land can bring an oil and gas company $180,000 annually), with Bateman, supra note 87 (pointing out that one property in Dimock, Pennsylvania, was leased to an oil and gas company for a one-time fee of $250). 105. Skalski, supra note 6, at 286. 106. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 7. 107. See id. at 8. 108. Id. at 7.

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e. Water Usage In Michigan, water use is a particularly important issue. Even though it may seem that there is an abundance of water in the Great Lakes Basin, one must keep in mind that less than 1% of the Earth’s water is available for human use.109 Michigan and the other states and provinces surrounding the Great Lakes, have a duty to be an environmental steward to this wonderful resource. Fracking uses enormous amounts of water during every stage of development.110 Oil and gas companies in Michigan recently discovered they could profitably frack into the deep Collingwood Shale play.111 This puts heightened stress on the environment because it means an enormous increase in permanent water withdrawal.112 The difference in water usage from fracking in the shallower Antrim Shale in Michigan and the Collingwood Shale is 50 thousand gallons, compared to 5 million gallons, respectively.113 In one instance, a single fracking well in Michigan used over 21 million gallons of water.114 While this is another gray area as far as long-term impacts of fracking, the short-term impacts are already being felt. In Michigan, fracking companies are allowed to draw straight from the water table.115 This has resulted in water table levels lowering so much that in Kalkaska, Michigan, oil companies had to re-drill water wells multiple times to reach the water table.116

109. Water Supply in the U.S., U.S. ENVTL. PROTECTION AGENCY, http:// www.epa.gov/WaterSense/ pubs/supply.html (last updated May 16, 2016). 110. Skalski, supra note 6, at 282. 111. See Topp, supra note 2, at 33. 112. Environmental Impacts, KENT COUNTY WATER CONSERVATION, http://www.kentcountywaterconservation. org/ environmental-impacts/ (last visited May 5, 2016). 113. OFFICE OF GEOLOGICAL SURVEY., supra note 28, at 2. 114. ENCANA OIL & GAS, Hydraulic Fracturing Fluid Product Component Information Disclosure, WMEAC, https://thewmeacblog.files.wordpress.com/ 2012/11/encana-state-excelsior-3-25-hd-1.pdf (last visited June 9, 2016). 115. Fracking Creates Water Scarcity Issues in Michigan, ECOWATCH (June 5, 2013, 9:56 AM), http:// ecowatch.com/ 2013/06/05/fracking-water-scarcity-issuesimichigan/. 116. Id.

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E. New York’s Path to a Ban In late 2014, New York became the first state with significant oil and gas resources to ban fracking.117 The process leading to the ban was unusual because it was not the state legislature that effected the ban but rather a series of small steps which culminated in the statewide prohibition of hydraulic fracturing.118 The movement to ban fracking in New York started in December 2010 when former Governor David Paterson issued an executive order putting a moratorium on fracking until July, 11, 2011.119 Governor Andrew Cuomo inherited the moratorium in 2011, and he maintained it pending the outcome of the long-awaited New York Department of Health review of the process of fracking.120 This report, which had been in the works since 2012, was finished in December 2014.121 The report concluded that fracking posed inestimable public health risks, and a statewide ban was recommended.122 Governor Cuomo took the recommendations very seriously, recognizing that fracking provided much more potential harm than benefit and decided to institute a statewide ban.123 While the study may have been a large part of the reason for the ban, the path was really paved by local grassroots organizations and politicians that made it possible for Governor Cuomo to decide in favor of a statewide ban.124 While the state was conducting its study on fracking, New York municipalities took matters into their own hands.125 As of the date that Governor Cuomo banned fracking, 89 municipalities had adopted bans on fracking with many more

117. Kaplan, supra note 6. 118. Steven Mufson, Here’s the Grassroots Political Story Behind the New York Fracking Ban, WASH. POST (Dec. 18, 2014), http://www.washingtonpost.com/ blogs/wonkblog/wp/2014/12/18/heres-the-grassroots-political-story-behind-thenew-york-fracking-ban/. 119. Tom Zeller Jr., New York Governor Vetoes Fracking Bill, N.Y. TIMES (Dec. 11, 2010), http://green.blogs .nytimes.com/2010/12/11/new-york-governor-vetoesfracking-bill/?_r=0. 120. Mufson, supra note 118; see also N.Y. STATE DEP’T OF HEALTH, supra note 5. 121. Kaplan, supra note 6. 122. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 11–12. 123. See Kaplan, supra note 6. 124. Mufson, supra note 118. 125. See id.

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maintaining moratoriums.126 Many of these municipalities were located on the most profitable areas for oil companies to drill which made it increasingly less beneficial to the state if Governor Cuomo decided to allow fracking in New York.127 Leading the charge for New York municipalities that banned fracking was the small town of Dryden.128 Dryden was pushed to the fracking forefront due to litigation that ultimately affirmed the legality of using zoning ordinances to ban the use of fracking in a municipality.129 In the landmark case of Anschutz Exploration Corp. v. Town of Dryden, New York’s Supreme Court was forced to decide if using zoning ordinances to ban fracking amounted to a direct regulation of the industry, which municipalities are expressly prohibited from doing.130 Before the implementation of Dryden’s anti-fracking zoning ordinances, Anschutz Exploration Corporation had leased–for the purposes of fracking–approximately 22,200 acres of land in Dryden, which amounted to one-third of the total area of the town.131 In response, Dryden amended its zoning regulations to prevent this land use in the community.132 What followed was the first lawsuit of its kind in the state of New York, which held that municipalities are free to use their police power inherent in zoning regulations to prevent fracking.133 The court reasoned that because zoning ordinances only regulate land use, as opposed to the mining of natural resources, these ordinances were not preempted by state law, and this was not a direct regulation on the oil and gas industry.134 This opened the door for other communities to ban fracking without the fear of expensive litigation.135 It was the grassroots political movements in municipalities, along with the New York 126. Fractracker Alliance, Movements Against HVHF, FRACTRACKER, http://www.fractracker.org/map/us/new-york/moratoria/ (last updated Dec. 30, 2014). 127. See Mufson, supra note 118. 128. Id. 129. Anschutz Expl. Corp. v. Town of Dryden, 940 N.Y.S.2d 458, 474 (N.Y. Sup. Ct. 2012), aff’d, Norse Energy Corp. v. Town of Dryden, 964 N.Y.S.2d 714 (N.Y. App. Div. 2013), aff’d, Wallach v. Town of Dryden, 16 N.E.3d 1188 (N.Y. 2014). 130. See generally id. 131. Id. at 461. 132. Id. 133. See generally id. 134. Id. 135. Mufson, supra note 118.

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State Department of Health study that made it an easy decision for Governor Cuomo to ban fracking throughout the state.136 F. Current Fracking Regulations in Michigan Several agencies work together to regulate fracking in Michigan. The MDEQ and the Michigan Public Service Commission (MPSC) work together to issue permits and regulate the oil and gas industry.137 The MDEQ is in charge of issuing permits; the MPSC is in charge of regulating transportation of oil and gas through pipelines.138 The first step for a company looking to frack a well in Michigan is to disclose the exact site, which will be investigated by the Supervisor of Wells to determine the nature of the surroundings.139 For instance, if the well location is found on a flood plain, additional permitting steps would need to be taken.140 The company drilling the well must then disclose the chemicals that will be used in the fracking fluid, whether there will be horizontal drilling involved, and the abandonment plan for that well.141 Once the well-drilling permit is granted, the company may begin well construction.142 After well construction is complete, it must undergo extensive MDEQ testing.143 While this is ongoing, the well company must be issued a Standard Well Connection Permit and an Allowable Withdrawal Order.144 The Standard Well Connection Permit allows the company to connect to pipelines used exclusively for transporting gas and oil.145 The Allowable Withdrawal Order is the result of a well capacity test done by the MPSC and advises the company how much oil or gas it may remove from the drilled well.146 In addition to these requirements, Michigan recently passed the Michigan Water Withdrawal Act with the intent to protect freshwater 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146.

Id. Schroeck, supra note 11, at 115. Id. Id. at 116. Id. Id. Schroeck & Karisny, supra note 37, at 1172. Id. Id. MICH. ADMIN. CODE r. 460.864 (2013). Id.

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resources from adverse impacts.147 This Act requires that anyone wishing to withdraw a large amount of fresh water from Michigan’s resources must use the Water Withdrawal Assessment Tool.148 An oil company that wishes to withdraw a large quantity of water is required to enter all the pertinent data about the water withdrawal using the assessment tool which makes a determination on whether there will be an adverse impact on rivers, lakes, and local wildlife.149 However, the problem with this tool is that it is not designed to analyze the impact on groundwater and the water table level. And because oil companies are drawing their water directly from the water table, the test does not accurately analyze the adverse impacts of some fracking water withdrawals.150 Note that while the MDEQ requires the use of this tool, oil and gas companies remain exempt from the Michigan Water Withdrawal Act, which appears to run contrary to the goals of environmental preservation that inspired the Act in the first place.151 Once the required permits have been issued, and the Water Withdrawal Assessment tool has given the project the go-ahead, the company may begin production.152 III. ANALYSIS A. Protection of Water Resources is Better Accomplished by Prevention Now than Future Attempts to Cure There is enough information to determine, to an extent, the potential harm involved with fracking, but the long-term effects of this activity are still relatively unknown.153 While there are many ongoing or proposed major studies on the long- and short-term effects of fracking, “these alone would not adequately address the array of complex concerns related to [fracking] activities.”154 Fracking reduces demand on foreign oil and makes America more energy independent.155 There is no question that this is true. Everyone benefits from lower prices at the pump because of 147. 148. 149. 150. 151. 152. 153. 154. 155.

Schroeck & Karisny, supra note 37, at 1178–79. Id. at 1179. Environmental Impacts, supra note 112. Id. Id. at 1180. See id. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 11–12. Id. at 8. The Good News at a Glance: Natural Gas–An Electric Win, supra note 52.

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abundant supplies of natural gas. The problem with this is long term– energy independence is important, but gas and oil are nonrenewable resources.156 According to British Petroleum, in 2014, the world had about 53 years of oil left.157 While temporarily decreasing dependence on foreign oil and gas is always good, an alternative source of fuel is really the only option even looking within a lifetime. The argument that fracking has been going on for more than 60 years is illogical when considered in context. High-volume fracking is the process that is controversial, which has been in use since the 1990s and only since 2008 in Michigan.158 The process that has been used for over 60 years, while similar, is vastly different when it comes to the water usage, depth of the well, makeup of the fracking fluid, use of a horizontal component, and, most importantly, its environmental impact.159 High-volume fracking still has unknown consequences.160 While it is true that natural gas contains significantly lower levels of greenhouse gases than other fossil fuels, a recent study by Cornell University revealed that the newly proposed Environmental Protection Agency (EPA) gas capturing regulations could, in practice, “render fracking gas even dirtier than coal.”161 While the newly proposed regulations would reduce methane emissions, avoiding potential climate change, the unintended consequences of the regulations would force the EPA to choose between a dirty resource and aggravating climate change.162 Because both these choices are unacceptable, it seems the only light at the end of the tunnel is to do without energy provided through fracking. Although the aboveground footprint of fracking is reduced with the addition of horizontal wells, this is at the sacrifice of the 156. Non-Renewable Energy Sources, SCIENCE LEARN (June 10, 2008), http://sciencelearn.org.nz/Contexts/Future-Fuels/Science-Ideas-and-Concepts/Nonrenewable-energy-sources. 157. Matt DiLallo, The World has 53.3 Years of Oil Left, USA TODAY (June 28, 2014), http://www.usatoday.com/story/money/business/2014/06/28/the-world-was533-years-of-oil-left/11528999/. 158. Dep’t of Envtl. Quality, Hydraulic Fracturing in Michigan, MICHIGAN.GOV, http://www.michigan.gov/deq/0,4561,7-135-3311_4231-262172— ,00.html (last visited June 10, 2016). 159. Id. 160. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 11–12. 161. Whitacre, supra note 29, at 344. 162. See Skalski, supra note 6, at 285.

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subsurface integrity.163 Because more area of the subsurface is fractured, this increases the chances of migration of fracking fluid and increases the likelihood of seismic activity.164 Oil and gas companies that choose to lease land and operate wells in communities temporarily increase jobs and are beneficial to the economy.165 This is why depressed communities often welcome the idea of fracking, but this take-the-money-and-worry-about-theconsequences-later mentality often has devastating consequences. While a homeowner could benefit directly from leasing their land to be fracked, it is often not a very large benefit. For example, when oil and gas companies first came knocking on doors in Dimock, Pennsylvania, land was leased for a one-time payment of as little as $250 an acre.166 Compare this small, short-term gain to what the community is currently dealing with: houses leased to oil companies are not only worthless, but the people who live in them cannot afford to move out and are experiencing serious health problems as a result of the decision to lease.167 New York’s Governor Andrew M. Cuomo said of this predicament, “I’ve never had anyone say to me, ‘I believe fracking is great.’ Not a single person in those communities. What I get is, ‘I have no alternative but fracking.’”168 “[P]roceeding with hydraulic fracturing of deep shale wells now is like taking a shot in the dark.”169 While there are other options, such as stricter regulations, a ban on fracking is the only way to really prevent damage to the environment and Michigan residents. Energy independence, although very significant in today’s world, will never be more important than potable water and breathable air. B. How to Reach the Solution, Following New York’s Lead There are three levels where fracking can be banned: the federal level, the state level, or the municipal level. It is most unlikely at the federal level because of how the federal government and the EPA have handled fracking regulation so far. 163. 164. 165. 52. 166. 167. 168. 169.

Id. at 280. Id. at 280–81. See The Good News at a Glance: Natural Gas–An Electric Win, supra note Bateman, supra note 87. Id. Kaplan, supra note 6. Topp, supra note 2, at 35.

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a. Federal Regulation of Fracking: The Quest for Energy Independence Fracking is exempt from more federal regulations than it is regulated by.170 Fracking is exempt from many federal regulatory schemes such as the Clean Water Act pollution standards, the Resource Conservation and Recovery Act, and the Emergency Planning and Community Right-to-Know Act.171 Perhaps most importantly, fracking is exempt from the Safe Water Drinking Act, which Congress passed to regulate the nation’s drinking water supplies, protect public health, and protect against dangerous underground injections.172 Congress defends these exemptions on the grounds that the exemptions promote energy independence, but it is hard to ignore oil companies donating large amounts of money to congressional campaigns, spending 70 million dollars lobbying for these exemptions, and the fact that Dick Cheney, former CEO of Halliburton, was extremely influential in passing these exemptions.173 Originally, the EPA’s stance on the regulation of fracking was that it was exempt because it was not, in fact, an underground injection.174 It did not take long for environmental groups to notice the incongruity between the EPA’s stance and reality, which culminated in two lawsuits that purported to cure the EPA of its ignorance.175 As it turned out, a series of Eleventh Circuit Court decisions would not stand in the way of energy independence, so the EPA decided to conduct a report.176 The EPA concluded its first report on fracking in 2004.177 This was an attempt to permanently assuage critics of their concerns with fracking in order to pave the way for legislation that is friendly to oil and gas companies.178 Although the EPA would have probably worded its mission statement differently, that was the effect that it 170. Skalski, supra note 6, at 288–89. 171. Id. 172. Whitacre, supra note 29, at 344. 173. Id. at 350. 174. Id. at 347. 175. See id. at 346–47. 176. Id. at 350. 177. See generally U.S. ENVTL. PROT. AGENCY, EPA 816-R-04-003, EVALUATION OF IMPACTS TO UNDERGROUND SOURCES OF DRINKING WATER BY HYDRAULIC FRACTURING OF COALBED METHANE RESERVOIRS (2004). 178. See Whitacre, supra note 29, at 350–51.

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had.179 The study concluded that fracking “poses little or no threat to [underground sources of drinking water] and does not justify additional study.”180 However, several flaws were immediately noticed in the study. First, it disregarded evidence of fracking contaminating water sources and found inconclusive proof of a direct relationship between fracking and the contamination.181 This is ironic because it is the federal laws that exempt oil and gas companies from disclosing the fracking chemicals they use that incidentally prevent the discovery of a direct relationship.182 Second, the EPA conducted very little original research and handpicked the studies it used to justify the study’s conclusion—that fracking is a safe activity.183 One noteworthy example of the EPA ignoring relevant data is a study by the Argonne National Laboratory that concluded that some of the chemicals used in the fracking process can be lethal at levels as low as 0.1 parts per million.184 Lastly, and perhaps most significant, amidst all the criticism of the EPA study, an EPA employee blew the whistle on the defunct study.185 The employee pointed out that the study was not based on health impacts, but rather was designed to provide no proof of any danger involved with fracking.186 The EPA had ignored relevant data showing that fracking was dangerous in order to protect the oil and gas industry from regulation.187 The EPA admitted some fault and changed some information in its study to reflect criticism but maintained its position that fracking was safe.188 In response to the EPA’s study, without regard to its accuracy, Congress passed the Energy Policy Act of 2005.189 This 179. See id. 180. Angela C. Cupas, The Not-So-Safe Drinking Water Act: Why We Must Regulate Hydraulic Fracturing at the Federal Level, 33 WM. & MARY ENVTL. L. & POL’Y REV. 605, 613 (2009). 181. See id. at 608. 182. Whitacre, supra note 29, at 351. 183. Id. at 345–46. 184. Id. at 346. 185. Cupas, supra note 180, at 624; see also Rebecca Clarren, EPA to Citizens: Frack You, SALON (May 5, 2006), http://www.salon.com/2006/05/05/fracking/ (noting that EPA employees acknowledged their own study was irrational and corrupt). 186. See Clarren, supra note 185. 187. See id. 188. Cupas, supra note 180, at 625. 189. See Whitacre, supra note 29, at 350.

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Act has the effect of precluding the EPA from having jurisdiction over chemicals injected into the ground by oil and gas companies.190 The Act is also the source of all the other exemptions fracking enjoys under federal law.191 These exemptions have collectively become known as the “Halliburton Loophole” because Halliburton was the first company to develop fracking and the fact that their former CEO Dick Cheney was so instrumental in the passage of the Act and its fracking-friendly rules.192 One of the only measures the EPA has actually taken toward the regulation of fracking, in an attempt to appease demands for fracking regulation,193 was to enter into a Memorandum of Agreement with three companies that operated 95% of fracking operations in the United States at the time.194 This voluntary agreement asked the companies to refrain from using diesel fuel and other toxic chemicals in injections into underground sources of drinking water.195 In the end, this turned out to be a cleverly disguised way to further abstain from the regulation of the fracking industry.196 The agreement is riddled with permissive language and does not allow for any repercussions if one of the companies decides to reinstitute diesel fuel into its fracking fluid.197 The agreement allows for a company to reinstitute the use of diesel fuel as long as the EPA is given a notice of thirty days, which essentially makes compliance completely voluntary.198 The EPA is currently conducting another study, which has a wider scope than the first.199 Beginning in 2011, this study will attempt to fill gaps left by the previous study.200 The EPA has thus 190. See id. 191. Skalski, supra note 6, at 288–89. 192. Editorial, The Halliburton Loophole, N.Y. TIMES (Nov. 2, 2009), http://www.nytimes.com/ 2009/11/03/opinion/03tue3.html?_r=2&; see also Whitacre, supra note 29, at 350–51. 193. Skalski, supra note 6, at 294. 194. Cupas, supra note 180, at 620. 195. Id. 196. See id. at 620–21. 197. Id. at 621. 198. Id. 199. EPA’s Study of Hydraulic Fracturing for Oil and Gas and its Potential Impact on Drinking Water Sources, U.S. ENVTL. PROTECTION AGENCY, http://www2.epa.gov/hfstudy (last updated June 1, 2016). 200. Francis Gradijan, State Regulations, Litigation, and Hydraulic Fracturing, 7 ENVTL. & ENERGY L. & POL’Y J. 47, 51 (2012).

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far issued a study plan and progress reports but has not reported any conclusions.201 Because of these “extremely lackadaisical”202 attempts at sculpting a workable regulatory scheme for the fracking industry, Congress has made two attempts at regulating fracking with the introduction of the Fracturing Responsibility and Awareness of Chemicals Act, once in 2009 and again in 2013.203 Both bills were not enacted, and it seems very unlikely that any further progress toward regulation will be achieved at the federal level with the current congressional trend of promoting energy independence over environmental concerns.204 b. A Statewide Ban is Best Achieved Through the Municipalities A statewide ban of fracking in Michigan would be the best way to protect Michigan and the environment. The path to get there is not through the legislature but by regulating the oil and gas industry through zoning ordinances.205 In Michigan, many municipalities have realized this and have taken action. In response to oil and gas companies starting to lease vast amounts of land for potential fracking activities, one township has banned fracking, seven cities and townships have enacted moratoriums on fracking, and thirteen cities and townships have resolved to support a statewide and national ban on fracking.206 In addition, cities have pledged to support the ban of fracking without passing resolutions—most notably Grand Rapids, where Mayor George Heartwell made renewable energy and a ban on fracking the centerpiece of his most recent State of the City address.207 This is identical to the process that led New York to a ban.208 By municipalities placing moratoriums and 201. EPA’s Study of Hydraulic Fracturing for Oil and Gas and its Potential Impact on Drinking Water Sources, supra note 199. 202. Whitacre, supra note 29, at 350. 203. Skalski, supra note 6, at 294. 204. See id.; see also S. 1135(113): FRAC Act, GOVTRACK.US, https://www.govtrack.us/congress/bills/113/s1135 (last visited Mar. 27, 2015). 205. See Mufson, supra note 118; see also Schroeck, supra note 11, at 117–20. 206. Ban Fracking Everywhere, FOOD & WATER WATCH, http://www.foodand waterwatch.org/campaign/ban-fracking-everywhere (last visited June 10, 2016). 207. Matt Vande Bunte, Renewable Energy Takes Center Stage in Mayor George Hartwell’s Last State of the City, MLIVE (Jan. 18, 2015), http://www.mlive.com/news/grandrapids/index.ssf/2015/01/renewable_energy_ takes_center.html. 208. See Mufson, supra note 118.

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bans on fracking, it makes it much easier for the state to follow suit, as the financial incentive to allow fracking is significantly reduced.209 It also discourages companies from investing in leases if they are uncertain about municipal bans obstructing their development.210 The problem with proceeding to a statewide ban one municipality at a time is whether it is legal. This is the problem that municipalities across the country are facing as the oil and gas industry files lawsuits to protect their investments.211 These can be extremely costly battles that some municipalities cannot afford.212 For example, Longmont, Colorado, has spent $136,000 fighting a largely unsuccessful battle against oil companies after the town voted to ban fracking in 2012.213 This may seem like an exorbitant amount of money, but the oil and gas companies opposing the ban have spent upwards of $500,000 in their fight against that particular ban.214 While the prospect of spending this much money defending a ban that could be overturned may seem daunting at first, Michigan municipalities have a better chance at prevailing than those in Colorado. Looking at the legal battles across the country, there are two basic types of lawsuits that result from municipal bans on fracking. The first—as was the case in New York and will likely be the case in Michigan, as more bans and moratoriums are enacted despite substantial oil and gas leases in place in the municipalities— arises from a change in zoning laws.215 The second type of lawsuit arises when a municipality votes in a ban through a ballot initiative. This type of lawsuit is being litigated heavily in Colorado and Texas.216 While these lawsuits will not set a national precedent, they 209. Id. 210. Id. 211. See Kate Taylor & Thomas Kaplan, New York Towns Can Prohibit Fracking, States Top Court Rules, N.Y. TIMES (June 30, 2014), http://www.nytimes.com/ 2014/07/01/nyregion/towns-may-ban-fracking-new-yorkstate-high-court-rules.html?_r=0; see also Jack Healy, Heavyweight Response to Local Fracking Bans, N.Y. TIMES (Jan. 3, 2015), http://www.nytimes.com/ 2015/01/04/us/ heavyweight-response-to-local-fracking-bans.html. 212. Healy, supra note 211. 213. Id. 214. Id. 215. See generally Anschutz Expl. Corp. v. Town of Dryden, 940 N.Y.S.2d 458, 474 (N.Y. Sup. Ct. 2012), aff’d, Norse Energy Corp. v. Town of Dryden, 964 N.Y.S.2d 714 (N.Y. App. Div. 2013), aff’d, Wallach v. Town of Dryden, 16 N.E.3d 1188 (N.Y. 2014). 216. See Healy, supra note 211.

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will be persuasive to other jurisdictions that confront the same issue.217 The main difference between these two types of lawsuits is that the zoning ordinance changes are generally not considered a direct regulation on the oil and gas industry but rather a regulation on land use.218 Since the oil and gas industry is regulated at the state level, municipalities do not have the authority to directly regulate this industry.219 So the way a municipality can get around this is to use its “home rule” powers to zone out fracking.220 The problem with voting in a municipal ban through ballot initiatives is that courts are interpreting this as a direct regulation on the industry, which is a matter for the state, and not the municipality, to legislate.221 While New York courts have determined that zoning ordinances banning fracking are legal, Michigan courts have not yet made the same determination. However, in Addison Township v. Gout, the Michigan Supreme Court held that there was no legislative intent to preempt all local regulation of the gas and oil industry, except as to the zoning of the wells.222 The court reasoned that the state legislature did not intend to take away all regulatory power over the oil and gas industry from the municipalities, and regulating land use was a valid exercise of municipal zoning authority.223 This means that municipalities may regulate land use of the oil and gas industry, which, if done correctly, would effectively ban the practice of fracking.224 While this is no guarantee that a municipal ban of fracking would hold up in court, this case provides evidence that Michigan courts will allow some local regulation of the industry, as long as it is not preempted by state law.225 Perhaps more persuasive is the Michigan Supreme Court decision in Kyser v. Kasson Township, where the Court decided “[i]n our judgment, it follows that the Legislature intended that localities would be responsible for regulating the extraction of natural resources within their boundaries.”226 Of course, this lawsuit was in 217. 218. 219. 220. 221. 222. 223. 224. 225. 226.

Id. Anschutz, 940 N.Y.S.2d at 473. Id. at 466. See Mufson, supra note 118. Healy, supra note 211. Addison Twp. v. Gout, 435 Mich. 809, 815 (1990). See generally id. Schroeck, supra note 11, at 120. See Addison, 435 Mich. at 809. Kyser v. Kasson Twp., 486 Mich. 514, 542 (2010).

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response to local regulations on gravel mining.227 Regardless of what type of resource, it seems that the Michigan Supreme Court favors local regulation of the extraction of local resources. 228 While the decision in Kyser was never overturned by the courts, the Michigan legislature did change a part of that decision by reinstating the very serious consequences test which the Court in Kyser declined to follow.229 This test only allows the regulation of mineral extraction operations in cases where very serious consequences would result from the extraction.230 The factors to be considered by a court in determining whether very serious consequences would result from resources extraction are: the relationship of extraction and associated activities with existing land uses; the impact on existing land uses in the vicinity of the property; the impact on property values in the vicinity of the property and along the proposed hauling route serving the property, based on credible evidence; the impact on pedestrian and traffic safety in the vicinity of the property and along the proposed hauling route serving the property; the impact on other identifiable health, safety, and welfare interests in the local unit of government; and the overall public interest in the extraction of the specific natural resources on the property.231 Reinstating the very serious consequences test may be a setback for municipalities trying to ban fracking, but it certainly does not rule out the possibility of a successful ban, as fracking has many serious consequences. Because the very serious consequences of fracking align well with the factors used to determine whether a municipal ban of a resource extraction technique is legal, there is a good chance that municipal bans will be upheld by Michigan courts. For instance, there are many examples of fracking causing diminishing property values.232 Also, studies have found a significant correlation between fracking activities in a community and traffic safety issues.233 This Note presented a plethora of evidence of the impact on identifiable health, safety, and welfare interests of the community. The “specific facts surrounding the proposed well and the local 227. 228. 229. 230. 231. 232. 233.

Id. See id. Compare id., with MICH. COMP. LAWS ANN. § 125.3205 (Westlaw 2016). § 125.3205 (Westlaw 2016). Id. See GASLAND, supra note 87. N.Y. STATE DEP’T OF HEALTH, supra note 5, at 6–7.

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character of the region” will also have a large role in whether a municipal ban will be upheld in Michigan.234 IV. CONCLUSION While fracking is a process with great benefits that will likely lead to more energy independence in the United States, these benefits come with extreme consequences. As United States Representative Jared Polis put it, “[t]here is a growing discrepancy between the natural gas industry’s claim that nothing ever goes wrong and the drumbeat of investigations and personal tragedies which demonstrate a very different reality.”235 With this in mind, many cities, townships, counties, and states are pushing for a ban on fracking across the country, as well as in Michigan.236 It is about time Michigan took a serious stand on such an important issue, and this means banning fracking. The best route to this, as proved by New York, is through municipalities defending their right to zone out industry that has a harmful effect on the local environment.

234. Schroeck, supra note 11, at 130. 235. Bob Berwyn, Energy: The FRAC Act is Back in Congress, SUMMIT COUNTY VOICE (Mar. 16, 2011), http://summitcountyvoice.com/2011/03/16/ energy-the-frac-act-is-back-in-congress/. 236. See Ban Fracking Everywhere, supra note 206.

COMMENT CURRICULUM AND CONCEALED CARRY: A PROPOSED REVISION OF MICHIGAN’S CONCEALED WEAPONS LAW KYLE T. O’MARA* ABSTRACT Mirroring the nationwide trend, current Michigan law prohibits a concealed pistol licensee from carrying a firearm in a college dorm or classroom. Despite this trend, violent crime on or near college campuses is a serious problem. Similarly, recent polls indicate that an alarming percentage of campus police departments believe that they are inadequately prepared to protect students from certain dangers. As more and more Americans choose to arm themselves legally some states have lifted their respective bans on licensed concealed carry at educational institutions with no apparent negative results. This article proposes to amend Michigan law to allow licensed individuals to carry concealed weapons on college campuses within the state. Despite emotionally charged arguments to the contrary, preserving the basic human right to self-defense offers the potential for immense benefits with no statistically likely risks. I. INTRODUCTION At an institution of higher education, James Beila degraded my body by raping me and the existing law rendered me defenseless against him by denying me my right as a licensed CCW carrier to have my firearm with me on campus. Had I been afforded the opportunity to legally carry then, I would have at

* Kyle O’Mara graduated from Western Michigan University Thomas M. Cooley Law School in May of 2016. During law school, he was a Senior Resource Editor for the WMU-Cooley Law Review. Before entering law school, he received a B.A. in Political Science from Saginaw Valley State University. Kyle is an avid hunter and shooting sport enthusiast.

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some point during my rape been able to stop James Beila. . .1 On December 22, 2007, Amanda Collins fell victim to both a brutal sexual assault and a flawed system.2 After leaving a night class on the campus of the University of Nevada, Reno, Amanda walked with a group of friends towards a parking structure, ascribing to the adage that affords “safety in numbers.”3 She had left her car on the ground floor of the nearest parking garage, not wanting to walk all the way across campus at night—again keeping her personal safety in mind.4 She surveyed the area and, seeing no one else around, bid her friends goodnight and headed toward her vehicle. James Beila, who had been crouching behind the cars in the parking structure waiting for a victim, grabbed Amanda from behind, threw her to the cold cement floor, placed a gun to her head, and brutally raped her.5 The attack occurred less than 100 feet from a campus police station in a parking structure filled with police cruisers.6 Amanda, legally licensed by her state to carry a concealed weapon and proficient in its use, had left her handgun at home that night in accordance with her University’s weapons policy.7 The attacker had sexually assaulted another girl before Amanda, and less than three months later, he would abduct, rape, and savagely murder nineteen-year-old Santa Barbara City College student Brianna Denison.8 James Beila, was sentenced to death for this brutal crime— a crime that might have been prevented if it were not for the University of Nevada’s weapons policy. The measure banning concealed weapons on campus took away Amanda Collins’s ability to protect herself and did nothing to prevent her attacker from bringing a gun into that university parking structure.

1. Hearing on S.B. 59 Before the S. Comm. on Natural Resources, Environment and Great Lakes, 2012 Leg., 96th Sess. 2 (Mich. 2012) (prepared testimony of Amanda Collins). 2. See id. 3. Id. at 1. 4. Id. 5. Id. at 2. 6. Id 7. Id. 8. Carlin Miller, Brianna Denison’s Killer, James Biela, Gets Death, CBS NEWS (Jun. 3, 2010, 4:47 PM), http://www.cbsnews.com/news/brianna-denisonskiller-james-biela-gets-death-mom-says-he-messed-with-the-wrong-family/.

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Instances of violent crime, such as Amanda’s, and horrific mass shootings in so-called “gun-free-zones” have prompted action against certain restrictions on licensed concealed carriers. What follows will show that arguments against allowing Michigan Concealed Pistol License (“CPL”) holders to carry their concealed weapons on college campuses are unfounded. The arguments tend to be based purely on emotion rather than logic or statistics and are potentially more dangerous than they are helpful. If certain conditions are met, lawabiding Michiganders with a valid CPL ought to have the right to carry concealed weapons for self-defense while they live, work, and study at a Michigan college or university. Section II of this Article will provide an overview of the increasingly popular practice of concealed carry, Michigan’s current statute governing the issue, and various jurisdictional differences among concealed carry laws across the country. Section III will detail the weapons policies of each of Michigan’s public universities. Sections IV and V of this Article will introduce recent efforts to amend Michigan’s concealed carry statute as well as the more focused cause of a group seeking to eliminate certain weapons restrictions on college campuses across the country. Section VI shows the startling trend of violent crime on college and university campuses across the country, a trend that would likely be more effectively countered by licensed concealed carriers than it has been by campus security forces. Section VII explains a recent decision by the Supreme Court of Colorado that struck down a university’s ban on concealed carry. Section VIII will describe the deficiencies of several common arguments against concealed carry on campus. II. CONCEALED CARRY OVERVIEW Across the country, a growing number of Americans are choosing to legally arm themselves and acquire CPLs.9 According to a recent study by the Crime Prevention Research Center, over eleven million Americans were legally licensed to carry a concealed weapon in 2014. This is an increase of about 146% since 2007.10 Similarly, the state of Michigan has seen its number of active CPLs swell to 9. Report: Number of Concealed Carry Permits Surges as Violent Crime Rate Drops, CBS DC (Jul. 10, 2014, 10:30 AM), http://washington.cbslocal.com/2014/ 07/10/report-number-of-concealed-carry-permits-surges-as-violent-crime-ratedrops/. 10. Id.

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approximately half a million.11 Between July 1, 2012 and June 30, 2013, the Michigan State Police received 129,900 CPL applications.12 Of these applications, only 1,662 were denied. 13 Most states in the United States have enacted concealed weapon laws that fall into two main jurisdictional categories: “may-issue” and “shall-issue” states. States with so-called “may-issue” statutes grant permits to applicants who show good cause for requiring a defensive weapon.14 This statutory scheme leaves licensing decisions entirely up to the discretion of the issuing body—few permits are ever granted.15 Conversely, “shall-issue” states remove all individualized discretion from the process.16 Instead, once an applicant has met the statutory requirements, including a criminal and mental health background check, the governing agency is bound to issue a concealed weapons permit.17 Before 2001, the state of Michigan fell into the “may-issue” category.18 M.C.L. § 28.425b represents the current “shall-issue” Michigan statute governing the issuance of CPLs. Subsection (7) states that “the county clerk shall issue and shall send by first-class mail a license to an applicant to carry a concealed pistol within the period required under this act if the concealed weapon licensing board or county clerk determines that” the applicant meets the age, mental health, and criminal background requirements.19

11. MICH. STATE POLICE, CPL Applications by County and Status (2016), https://www.michigan.gov/documents/msp/ccw_county_report_approved_273955_ 7.pdf. 12. MICH. STATE POLICE CRIMINAL JUSTICE INFORMATION CENTER, Concealed Pistol Licensing Annual Report (2013), http://www.michigan.gov/documents/msp/ CPLAnnual_Report2013_463317_7.pdf. 13. Id. 14. James Bishop, Hidden or on the Hip: The Right(s) to Carry After Heller, 97 CORNELL L. REV. 907, 913 (2012). 15. Id. 16. Id. at 912. 17. Id. 18. See Dawson Bell & Gina Damron, 10 Years After Concealed Weapons Law, Unclear Why Many in State Were Gun-Shy, DETROIT FREE PRESS (July 31, 2011), http://archive.freep.com/article/20110731/NEWS06/107310482/10-years-afterconcealed-weapons-law-unclear-why-many-state-were-gun-shy. 19. MICH. COMP. LAWS ANN. § 28.425b (Westlaw 2016).

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As is the case with many state statutes, Michigan law places certain restrictions on where CPL holders can carry a weapon.20 M.C.L. § 28.425o details these limitations, stating that “an individual licensed under this act to carry a concealed pistol . . . shall not carry a concealed pistol on the premises of” (a) “a school or school property”; (b) a public or private day care center; (c) a sports stadium; (d) a bar “where the primary source of income of the business is the sale of alcoholic liquor by the glass”; (e) “a church, synagogue, . . . or other place of worship, unless” given permission from the presiding officiant; (f) an “entertainment facility with a seating capacity of 2,500 or more”; (g) a hospital; and, finally, (h) a “dormitory or classroom of a community college, college, or university.”21 A first-offense violation of one of these restrictions could result in a civil infraction with a fine of up to $500 and a six-month suspension of that individual’s CPL.22 A second violation could result in a fine of up to $1000 and a misdemeanor charge with penalties including revocation of the offender’s CPL.23 Any subsequent violations would constitute a felony and could result in the offender’s imprisonment for up to four years, a fine of up to $5000, and revocation of the individual’s CPL.24 III. MICHIGAN UNIVERSITIES AND THEIR CONCEALED CARRY POLICIES Although the statute only directly forbids CPL holders from carrying firearms in “a dormitory or classroom” of a college or university, these institutions have the authority to ban weapons from their campuses entirely.25 Of the fifteen public four-year universities in Michigan, only one allows CPL holders to carry a weapon on campus.26 Several universities have policies banning non-law enforcement individuals from possessing any firearms on property 20. See, e.g., OHIO REV. CODE ANN. § 2923.126(B) (Westlaw 2016) (outlining similar restrictions on where a licensed person can carry a firearm). 21. MICH. COMP. LAWS ANN. § 28.425o (Westlaw 2016). 22. See § 28.425o(6)(a) (Westlaw 2016). 23. See § 28.425o(6)(b) (Westlaw 2016). 24. See § 28.425o(6)(c) (Westlaw 2016). 25. See § 28.425o(h) (Westlaw 2016); See Wade v. Univ. of Mich., No. 15000129-MZ (Mich. Ct. Cl. 2015). 26. See Mich. State Univ., Ordinances, Firearms or Weapons, § 18.01, MSU.EDU, http://trustees.msu.edu/ordinances/ordinances_sec18.html (last visited Mar. 4, 2016).

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owned or leased by the institution, including Central Michigan University,27 Eastern Michigan University,28 Grand Valley State University,29 Saginaw Valley State University,30 University of Michigan,31 and Western Michigan University.32 Students, employees, or faculty members who violate these rules are generally subject to suspension or even expulsion.33 Some schools have more favorable weapons policies but still stop short of allowing CPL holders to carry their weapons on campus. Ferris State University,34 Lake Superior State University,35 Michigan Technological University,36 and Northern Michigan University all fall into this category.37 These schools allow firearms on campus as long as they are stored with the campus police department or public safety office.38 Oakland University has a general ban on the possession of firearms on its campus, but there is an exception for

27. See Cent. Mich. Univ., Manual of Board of Trustees Policies, Practices and Regulations, CMICH.EDU, https://www.cmich.edu/bot/Documents/Board %20 Policy%20Manual/06-02R.pdf (last visited Feb. 11, 2016). 28. See E. Mich. Univ., Policies, § 5(Q), EMICH.EDU, http://catalog.emich.edu/content.php?catoid=3&navoid=259&hl=weapons&returnt o=search#10 (last visited Mar. 31, 2015). 29. See Grand Valley State Univ., Student Code, § 3.21, GVSU.EDU, http://www.gvsu.edu/studentcode/321firearms-weapons-electrical-devices-andexplosives-30.htm (last visited Mar. 31, 2015). 30. See Saginaw Valley State Univ., Operations Manual, § 4.7-1, SVSU.EDU, http://www.svsu.edu/operationsmanual/generaloperations/generaloperationsii/471w eaponspolicy/ (last visited Mar. 31, 2015). 31. Julie Peterson, Campus Policies on Weapons Updated, U. REC. (May 7, 2001), http://www.ur.umich.edu/0001/May07_01/6.htm. 32. See Western Mich. Univ., Policies: Weapons on Campus, WMICH.EDU, http://wmich.edu/policies/weapons-on-campus (last visited Mar. 4, 2016). 33. See id. 34. Ferris State Univ., Business Policy, Campus Violence and Weapons Prohibition, §§ 2.4, 4.7, FERRIS.EDU, http://www.ferris.edu/HTMLS/ administration /buspolletter/publicsafety/Campus-Violence-and-Weapons-Prohibition.pdf (last visited Feb. 10, 2016). 35. Lake Superior State Univ., Public Safety, Weapons Policy, LSSU.EDU, http://www.lssu.edu/publicsafety/weapons.php (last visited Feb. 10, 2016). 36. Mich. Technological Univ., University Policies and Procedures, § 2.5002, MTU.EDU, http://www.admin.mtu.edu/admin/policy/fac/5002.htm (last visited Feb. 10, 2016). 37. N. Mich. Univ., Weapons and Explosives, NMU.EDU, http://www.nmu.edu/publicsafety/node/197 (last visited Feb. 10, 2016). 38. See, e.g., id.

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residents of single-family housing units.39 Wayne State University bans personal possession of firearms on its campus but does allow the storage of guns in personal vehicles so long as “the firearm is unloaded and carried in a locked container in the luggage compartment of the vehicle, with ammunition, if any, separately stored.”40 The distinction in this provision is important because it allows CPL holders to carry weapons to and from campus—so long as they place their weapons in a locked container within their vehicle before reaching the school. Michigan State University (MSU) represents the sole exception to the concealed weapons policies among public four-year universities in Michigan. The firearm policy at MSU states that, “[e]xcept as permitted by state law regulating firearms, no person shall possess any firearm or weapon anywhere upon property” owned by the university.41 Michigan State’s Board of Trustees amended the language of the University’s firearm policy in 2009.42 MSU made this change in order to fall in line with the county and state laws allowing those licensed to carry concealed weapons in East Lansing, Michigan.43 Because MSU controls expansive tracts of property within the city, the university’s firearm policy and the state law controlling concealed carry were often at odds prior to the change. In keeping with state law, however, MSU does not allow weapons inside campus buildings.44 IV. EFFORTS TO CHANGE RESTRICTIONS In the past, there have been attempts to alter Michigan’s concealed carry policy. Senate Bill 59, introduced by Senator Mike Green in 2011, was the most successful of these attempts.45 The 39. Oakland Univ. Police Dep’t, University Ordinances, § 7.02, OUPOLICE.COM, http://oupolice.com/safety/ordinances/ (last visited Feb. 11, 2016). 40. Wayne State Univ., Wayne State University Statutes, §§ 2.87.03.050-60, WAYNE.EDU http://bog.wayne.edu/code/2_87_03.php (last visited Feb. 11, 2016). 41. Mich. State Univ., Ordinances, Firearms or weapons, § 18.01, MSU.EDU http://trustees.msu.edu/ordinances/ordinances_sec18.html (last visited Mar. 4, 2016) (emphasis added). 42. Jeff Greer, Michigan State Allows Concealed Weapons on Campus, U.S. NEWS & WORLD REP. (June 23, 2009, 4:34 PM), http://www.usnews.com/ education/blogs/paper-trail/2009/06/23/michigan-states-allows-concealedweapons-on-campus. 43. Id. 44. Id. 45. S.B. 59, 95th Leg., Reg. Sess. (Mich. 2011).

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proposed legislation would have implemented a system whereby CPL holders could receive an “enhanced” license after receiving additional handgun training.46 This enhanced license would have allowed the licensee to legally carry a weapon in so-called “pistolfree zones” (PFZs)47 The measure passed the Michigan Senate on November 29, 2012, by a vote of 27 to 11.48 Its counterpart passed the Michigan House of Representatives two weeks later by a vote of 68 to 41.49 The morning after the Michigan House of Representatives passed the proposed measure, a gunman entered Sandy Hook Elementary School in Newtown, Connecticut and murdered 26 students and adults.50 Five days later, Governor Rick Snyder vetoed the bill.51 Snyder claimed that he vetoed the measure because it did not allow certain institutions within PFZs to opt out and ban weapons from their premises.52 It is likely that the shock of the recent tragedy involving a school shooter weighed heavily on the Governor’s mind when he vetoed the measure that would have allowed licensees to carry weapons in schools. V. CONCEALED CARRY ON CAMPUS While Senate Bill 59 represents a broader push towards the outright elimination of PFZs restrictions on CPL holders in Michigan, a more narrowly focused movement has also gained traction in recent years. Students for Concealed Carry on Campus (SCCC), a group formed in the wake of the deadly Virginia Tech shooting in 2007, features a mission statement that epitomizes this growing movement: Students for Concealed Carry on Campus is a national, non-partisan, grassroots organization composed of more than 43,000 college students, professors, college employees, parents of college 46. S. 96-82, Reg. Sess., at 2764 (Mich. 2012). 47. Id. 48. S. 96-74, Reg. Sess., at 2308 (Mich. 2012). 49. H.R. 96-82, Reg. Sess., at 2766–67 (Mich. 2012). 50. Kathleen Gray, In Light of Tragedy, Michigan Gov. Rick Snyder Vetoes Bill That Allowed Guns in Schools, DETROIT FREE PRESS (Dec. 19, 2012), http://archive.freep.com/article/20121219/NEWS15/312190122/In-light-oftragedy-Michigan-Gov-Rick-Snyder-vetoes-bill-that-allowed-guns-in-schools. 51. Id. 52. Id.

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students, and concerned citizens who believe that holders of state-issued concealed handgun licenses should be allowed the same measure of personal protection on college campuses that current laws afford them virtually everywhere else. SCCC has members in all fifty states and the District of Columbia. 53 During the 2014 legislative session, fourteen states introduced proposals that would have allowed state-licensed concealed carriers to possess weapons on college campuses.54 Currently, 19 states (including Michigan) have statutory bans on concealed weapons on college or university campuses.55 In contrast, 23 states leave the decision regarding concealed carry up to the individual institutions within their jurisdiction.56 Only eight states explicitly allow licensed individuals to possess concealed weapons on campuses: Colorado, Idaho, Kansas, Mississippi, Oregon, Texas, Utah, and Wisconsin.57 VI. CRIME GOES TO COLLEGE A common thread among proponents of concealed carry on campuses across the United States is the individual right of selfdefense against violent crime. Data indicates that around one-third of all undergraduate students have fallen victim to crime while on campus.58 Fatal shootings at colleges and universities have risen while public school crime rates have fallen dramatically.59 A report by The Huffington Post indicated that, in 2013, “at least 27 shootings occurred on or near college campuses . . . .”60 This survey of local 53. Students for Concealed Carry on Campus, About, CONCEALEDCARRY.ORG, http://concealedcampus.org/about/ (last visited Mar. 5, 2016). 54. Nat’l Conference of State Legislatures, Guns on Campus: Overview, NCSL.ORG, http://www.ncsl.org/research/education/guns-on-campus-overview.aspx (last visited Mar. 31, 2015). 55. Id. 56. Id. 57. Id. 58. Susan P. Stuart, Participatory Lawyering & the Ivory Tower: Conducting a Forensic Law Audit in the Aftermath of Virginia Tech, 35 J.C. & U.L. 323, 337 (2009). 59. Id. at 337–38. 60. Tyler Kingkade, There Were More Than Two Dozen Reported Shootings at College Campuses in 2013, HUFFINGTON POST (Jan. 13, 2014, 5:48 PM), http://www.huffingtonpost.com/2014/01/13/shootings-college-campuses2013_n_4577404.html.

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media reports included any shooting that occurred “on a college campus or close enough to campus for a school to believe the incident posed a threat to students.”61 Eighteen people were killed during those crimes.62 Between 2007 and 2009, there were 75 murders reported on college or university campuses in the United States.63 During that time there were 7,996 forcible sexual assaults, 5,736 robberies, 8,136 aggravated assaults, and 83,928 burglaries reported on the campuses of American public and private colleges and universities.64 These institutions of higher learning are clearly anything but safe. For example, Paine College in Georgia, as picturesque, peaceful, and sleepy a setting as one could imagine, was rocked by violence in the spring of 2014. In May of that year, the small liberal arts school with a total enrollment of less than 1,000 students was the site of two separate shootings on its campus in less than two days.65 These examples of violence show that even small institutions are subject to threats of unexpected violent crime.66 A. Ineffective Campus Security Unfortunately, those currently tasked with defending students against such instances of crime might not have the ability to do so effectively. According to a 2012 study by Campus Safety Magazine, 25% of campus safety officials believe that their institution is not prepared to adequately “respond to an active shooter incident.”67 When asked whether their campus police or security receive enough training on handling lethal weapons, 38% of university respondents thought they did not.68 61. Id. 62. Id. 63. U.S. Dep’t of Educ., Campus Security, ED.GOV, https://www.ed.gov/ admins/lead/safety/campus.html (follow “Criminal Offenses MS Excel” hyperlink). 64. Id. 65. Saeed Ahmed, Students Told It’s Safe to Come to Class After 2 Shootings in 2 Days on Campus, CNN (May 6, 2014, 7:48 AM), http://www.cnn.com /2014/05/06/justice/paine-college-shootings/index.html. 66. Id. 67. Robin H. Gray, 1 in 4 Campuses Not Prepared to Respond to Active Shooters, CAMPUS SAFETY MAGAZINE (Jan. 1, 2013), http:// www.campussafetymagazine.com/article/25-of-Campuses-Not-Prepared-toRespond-to-Active-Shooters. 68. Robin H. Gray, 1 in 3 Campus Public Safety Officers Need More LessLethal Training, CAMPUS SAFETY MAGAZINE (Dec. 4, 2012),

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B. Concealed Carry and Crime Prevention Despite conflicting data, research indicates that crime decreases when CPL issuance rises. A 2015 report by the Crime Prevention Research Center suggested a direct correlation between the two figures. It noted that “between 2007 and 2014 murder rates have fallen from 5.6 to 4.2 (preliminary estimates) per 100,000 people. This represents a 25% drop in the murder rate at the same time that the percentage of the adult population with permits soared by 178%.”69 The rate of violent crime overall also decreased by over 25% during that same time span.70 Perhaps unsurprisingly, this period of plummeting crime rates also saw an explosion of firearm sales across the country. Criminal background checks through the National Instant Criminal Background Check System, a prerequisite for any firearm purchase from a federally licensed dealer, jumped from 11.2 million to 21 million between 2007 and 2014.71 The weight of the evidence also shows that concealed weapon permit holders themselves are not the perpetrators of crimes. Florida, the state with the most active CPLs in the country, issued more than 1.4 million concealed weapons licenses as of June 30, 2015.72 The state revoked only about .0006% of these licenses—168 permits in total—for firearm-related infractions.73 Statistics regarding Michigan CPL holders in the years following the enactment of the state’s “shall issue” law show a similar trend.74 Between 2001 and 2006, the “non-CPL population” in Michigan (those not licensed under M.C.L. § 28.425(b)) was responsible for about 75 major crimes for every one committed by an individual licensed by the state to carry a concealed firearm.75 Similarly, between 2004 and 2006, CPL holders committed only one murder for http://www.campussafetymagazine.com/article/CS-Survey-Part-2-42-of-CampusPublic-Safety-Departments. 69. CRIME PREVENTION RESEARCH CTR., CONCEALED CARRY PERMIT HOLDERS ACROSS THE U.S. 4 (2015). 70. Id. 71. Id. at 6. 72. Id. at 15. 73. FLA. DEP’T OF AGRIC. & CONSUMER SERV. DIV. OF LICENSING, CONCEALED WEAPON OR FIREARM LICENSE SUMMARY REPORT (2016), http:// www.freshfromflorida.com/content/download/7499/118851/cw_monthly.pdf. 74. See generally HOWARD NEMEROV, MICHIGAN CONCEALED CARRY STUDY 3 (2008), http://criticalpointmi.com/wp-content/uploads/2015/09/Michigan-Con cealed-Carry-Study.pdf. 75. Id.

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every 24.5 murders committed by the non-CPL population and one rape for every eight rapes committed by the non-CPL population of the state.76 These statistics show, generally, that individuals possessing valid Michigan CPLs are less likely to commit serious crimes than those not licensed to carry weapons. This result is both reassuring and logical considering the extensive criminal and mental health background checks required for licensure under Michigan’s CPL statute. VII. COLORADO CASE LAW Although this is a matter predominantly within the public policy realm, a recent Colorado case may shed some light on the growing trend in favor of campus carry. The case stemmed from a dispute between SCCC and the University of Colorado’s Board of Regents.77 At the time of the case, the University’s weapon policy prohibited any non-law enforcement individual from carrying a firearm on campus.78 The students sued the University, arguing that the ban violated the Colorado Concealed Carry Act.79 The act authorized licensed individuals to “carry a concealed handgun in all areas of the state” except for certain premises, which did not include college campuses. The law also prevented any local governmental entity from “adopt[ing] or enforce[ing] an ordinance or resolution that would conflict with any provision of” the Concealed Carry Act.80 The Supreme Court of Colorado found that the plain language and narrow exceptions of the Colorado Concealed Carry Act disallowed the University of Colorado’s campus weapons policy.81 It noted that the Act “divested the Board of Regents of its authority to regulate concealed handgun possession on campus.”82 VIII. COMMON ARGUMENTS AGAINST CAMPUS CARRY Opponents of allowing concealed carry on campus speculate that crime will rise dramatically if legal handguns are allowed in dorms and classrooms. As noted above, increased rates of concealed carry 76. Id. at 5. 77. Regents of Univ. of Colo. v. Students for Concealed Carry on Campus, L.L.C., 271 P.3d 496 (Colo. 2012). 78. Id. at 497. 79. Id. 80. Id. at 498. 81. Id. 82. Id. at 502.

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licensure across the country have had the opposite effect. Anecdotal evidence specifically pertaining to college campuses also debunks this argument. For example, over 150 college and university campuses allowed concealed carry for a combined 1,500 semesters.83 None of these institutions reported a single act of violence or a suicide attempt by a concealed weapon licensee during that period.84 Another common argument against concealed carry on campus is that the practice would distract students from the learning environment and make them feel “unsafe.”85 This argument seems to fail on its face, considering the proposed changes to college weapon policies only address concealed handguns. This means that they will not be visible. Additionally, these proposals do not seek to allow anyone to carry a handgun who is not already licensed to carry during the course of their everyday lives.86 Therefore, if these students are not “distracted” by concealed carriers at supermarkets or parks, there is no logical reason to believe that they would be distracted while on campus.87 Television, music, and film have disseminated the stereotype of the American college as a drug and alcohol-fueled rave. Opponents of concealed carry, apparently with this stereotype in mind, seem to dispel the idea that responsible college students exist. They argue that adding guns to a lifestyle defined by drug and alcohol abuse is a recipe for disaster.88 However, these arguments fail to recognize that carrying a concealed weapon while under the influence of drugs or alcohol is already illegal.89 Proposals to lift restrictions on concealed weapons on campus would not affect these regulations. Finally, opponents of concealed carry commonly argue that legally armed college students would be ineffective against an active shooter or other criminal threat.90 This argument is perhaps the most illogical. Granted, most CPL holders do not have extensive combat 83. Students for Concealed Carry on Campus, Common Arguments Against Campus Carry, CONCEALEDCARRY.ORG, http://concealedcampus.org/commonarguments/ (last visited Mar. 5, 2016) [hereinafter Common Arguments]. 84. Id. 85. See id. 86. See id. 87. Id. 88. See id. 89. Mich. State Police, Carrying Under the Influence, MICHIGAN.GOV, http://www.michigan.gov/msp/0,4643,7-123-1591_3503_4654-10961—,00.html (last visited Mar. 5, 2016). 90. See Common Arguments, supra note 83.

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training like members of the military or police forces—but does that really negate their individual right to self-defense?91 Does the possibility that Amanda Collins might not have been successful at fending off her attacker, in that campus parking garage with her handgun, mean that she should have been prohibited from carrying a weapon? IX. CONCLUSION A revised version of the previously mentioned Senate Bill 59 should be introduced in the Michigan legislature. By allowing CPL holders who receive extra training to acquire “enhanced” licenses, some opponents of the proposal would likely be placated. Even a bill focused specifically on prohibitions of concealed weapons in college dorms or classrooms would be a step in the right direction. It would be easier for the legislature to pass a bill addressing campus carry, rather than other “gun-free zones” under current Michigan law. To have any real effect, the bill would need to preempt colleges and universities from maintaining their current weapons policies that contradict the new law. The language of the above-mentioned Colorado Concealed Carry Act obviously accomplished this goal. Unfortunately, college campuses are not the bastions of peace and wisdom certain ideologues make them out to be. The world is a dangerous place filled with evil people intent on taking advantage of—and doing harm to—law-abiding citizens. “Gun free zones” are little more than target-rich environments for those who have no respect for laws. By lifting the current restrictions on concealed weapons in college buildings, and preventing those institutions from banning licensed carry on their grounds, Michigan lawmakers would help stem violent crime while preserving the most basic human right of self-defense.

91. See id.

COMMENT USE OF ARMED DRONES BY DOMESTIC LAW ENFORCEMENT: PRESENCE AND THE FOURTH REASONABLENESS FACTOR ALEXANDRA A. BRESHEARS* ABSTRACT Armed drones are an attractive means of enforcement for domestic law enforcement agencies. Drones equipped with tear gas, pepper spray cartridges, rubber bullets, bean bags, blinding lasers, paintballs, and barbed tasers are presently available for purchase. Select law enforcement agencies currently use drones for surveillance and have expressed interest in using armed drones. In the summer of 2015, North Dakota passed legislation authorizing law enforcement agencies to use armed drones. Due to the increasing interest in armed drones, it is very likely that more states will follow this progressive example. The courts will be required to consider the reasonableness of the force used by armed drones. This Comment argues that the current use-of-force analysis is sufficient to handle drone technology, with one important addition. Reasonableness of force is determined by considering the totality of the circumstances: the severity of the crime; whether the suspect poses an immediate threat to the safety of the officers or others; and whether the suspect is actively resisting arrest or attempting to evade arrest. Due to the way drones have changed the reasonableness equation, an additional factor must be added to this analysis: officer presence. Courts should examine officer presence, specifically whether an officer can fully experience the situation and whether an off-site officer will deploy a similar amount of force as an on-site operator. *

J.D. cum laude, Concordia University School of Law; Executive Managing Editor Concordia Law Review for 2015-2016; Pro Bono Honors for Service Over 100 Hours; Dixon Scholar. Bachelor of Arts Political Science Major and History Minor, Northwest Nazarene University. I would like to give special thanks to Professor Victoria Haneman for her mentorship, guidance, and critical comments, and my husband Korey Breshears for his continuing support. I would also like to thank Professor Jessica Berch for her helpful feedback.

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The fourth presen nce factor must m be cla rified for uuse of forcee to maintain consisteency with the Fourthh Amendmeent. As droone ops, the Fo ourth Amenddment’s prootections m must technollogy develo evolve to safegua ard individu ual liberty. This proteection may be accomp plished with h the addition of thee presence factor to the reasona able force an nalysis. TABLE E OF CONTEN NTS

TABLE OF CONTENT TS ............................................................................ 184 INTROD DUCTION .................................................................................... 184 I.USE OF O FORCE ................................................................................... 190

A. A Searches and Seizurees ........................................................ 190 B. B Reasonab bleness.................................................................... 192 II.APPLLICATIONS OFF DRONE TEC CHNOLOGY......................................... 195 A. A Overview w of Drone Technology T .......................................... 196 B. B Armed Drrones ...................................................................... 198 C. C Current Federal F Avia ation Adminiistration Reggulations .... 199 D. D Domesticc Drone Use............................................................ 2202 III.THEE FOURTH REASONABLEN E NESS FACTOR R: PRESENCE E .................. 2 203 A. A Sensory Analysis A .................................................................. 2204 B. B Psycholog gical Factorrs Affecting D Decisions ....................... 2207 IV.DOM MESTIC LAW W ENFORCEME ENT AGENCY Y SAMPLE PO OLICY ......... 2 210 A. A Sample Policy P ...................................................................... 2210 1.0 Use of o Force / Au uthorization ...................................... 2211 1.1 Dron ne Usage ................................................................. 2212 B. B Sample Policy P Discusssion................................................... 2212 CONCLLUSION ...................................................................................... 2214 INTRODUCTION 1

med drones are the fu uture of dom mestic law eenforcement. A Arm once hypothetical h issue has become an im mminently rreal concernn as law-enfforcement agencies a stan nd poised too use armed drones in dday 1. “Drone” “ is the common vernacular for an uunmanned aerial vehicle. Royy Y. Myose & Robert J. Strohl, Uninhab bited Aerial V Vehicle (UAV),, ACCESSSCIEN NCE, http://ww ww.accessscien nce.com/conten nt/uninhabitedd-aerial-vehiclee-uav/205300 ((last visited Feb. F 20, 2016);; see also Dron ne, MERRIAM--WEBSTER, httpp://www.merriiamwebster.com/dictionary y/drone (last visited v Feb. 200, 2016) (definning drone as “an unmanneed aircraft or sh hip guided by remote controll or onboard coomputers”).

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to-day operations.2 The use of drones as a means of surveillance has received significant attention in the media3 and scholarship4 with less 2. It is likely that a law enforcement agency will purchase a nonlethally-armed drone; however, there is no evidence that law enforcement agencies will use lethally armed drones. 3. The implication of drones upon the privacy doctrine has been the subject of much media attention over the past several years. Gregory S. McNeal, A Primer on Domestic Drones: Legal, Policy, and Privacy Implications, FORBES (Apr. 10, 2012, 8:12 PM), http://www.forbes.com/sites/gregorymcneal/2012/04/10/a-primer-ondomestic-drones-and-privacy-implications/#40ddbdb62b3c (“[W]hat types of [surveillance] uses might we see in the future? The most obvious role drones can play is in assisting law enforcement. Currently, law enforcement agencies are allowed to use drones in special circumstances.”); K.K., Drones and Privacy a Looming Threat, THE ECONOMIST (Mar. 19, 2015, 10:32 PM), http://www.economist.com/blogs/democracyinamerica/2015/03/drones-and-privacy (“The proliferation of drones—which include both small fixed-wing aircraft and small rotorcraft with multiple propellers—raises some vexing public-policy questions. . . . As drones—and other airborne surveillance platforms, such as circling manned aircraft and lighter-than-air craft—become cheaper and more effective, persistent aerial surveillance could become the norm, and no privacy or transparency measures currently exist in the law. So figuring out how to protect privacy without pre-empting innovation is as tricky as it is necessary.”); Stephen Carter, Commentary: A Battlefield of Drones and Privacy in Your Backyard, CHICAGO TRIBUNE (Aug. 3, 2015, 4:13 PM), http://www.chicagotribune.com /news/opinion/commentary/ct-drones-privacy-laws-20150803-story.html (considering how “increasing private use of unmanned aircraft raises yetunresolved questions about privacy.”); The Editorial Board, Drone Regulations Should Focus on Safety and Privacy, N.Y. TIMES (Jan. 9, 2016), http://www.nytimes.com/2016/01/10/opinion/sunday/drone-regulations-shouldfocus-on-safety-and-privacy.html?_r=0 (considering “how to protect privacy and promote safety without infringing on the First Amendment rights of citizens and businesses that wish to use drones for legitimates purposes”). The first cases regarding drone surveillance by law enforcement have begun to reach the courts. See, e.g., State v. Brossart, 858 N.W.2d 275 (N.D. 2015) (involving the use of a drone by law enforcement to locate a cattle thief). 4. Recent scholarship has also focused on how this new technology affects current privacy jurisprudence. See Drone Case Studies, 86 N.Y. ST. B.J. 20 (2014) (considering the uses of drones by law enforcement for surveillance activities in a selection of states); see also Timothy T. Takahashi, Drones and Privacy, 14 COLUM. SCI. & TECH. L. REV. 72 (2013) (quoting Katz v. United States, 389 U.S. 347, 351–52 (1967) (questioning what scenarios “might trigger a holding in which the Court defines a new privacy paradigm”)). What a person reasonably expects to be private is protected; however, “[b]roadly speaking, ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’” Katz, 389 U.S. at 351–52. Furthermore, it is well established in the jurisprudence of the United States Supreme Court that “a person

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attention paid to the use of drones as a means of enforcement. However, North Dakota very recently became the first state to legalize the use of nonlethal armed drones by law-enforcement agencies.5 As interest in the use of drones increases6 and drones continue to become more affordable, it is inevitable that more states will follow suit.7 has a constitutionally protected reasonable expectation of privacy.” Katz, 389 U.S. at 360 (Harlan, J., concurring). 5. In July 2015, North Dakota became the first state to legalize the use of nonlethally armed drones by law enforcement agencies. H.R. 1328-64, 1st Sess., § 5 (N.D. 2015) (“A law enforcement agency may not authorize the use of, including granting a permit to use, an unmanned aerial vehicle armed with any lethal weapons.”). This North Dakota law prohibits the use of lethally armed drones by the North Dakota law enforcement agencies, but the law does not address nonlethally armed drones. This omission was not an oversight, but an intentional drafting decision made due to a lobbyist. Justin Glawe, First State Legalizes Taser Drones for Cops, Thanks to a Lobbyist, THE DAILY BEAST (Aug. 26, 2015, 11:15 PM), http://www.thedailybeast.com/articles/2015/08/26/first-state-legalizes-armeddrones-for-cops-thanks-to-a-lobbyist.html (“Bruce Burkett of the North Dakota Peace Officers Association was allowed by the state house committee to amend HB 1328 and limit the prohibition only to lethal weapons. ‘Less than lethal’ weapons like rubber bullets, pepper spray, tear gas, sound cannons, and Tasers are therefore permitted on police drones.”). 6. AMERICAN CIVIL LIBERTIES UNION, PROTECTING PRIVACY FROM AERIAL SURVEILLANCE: RECOMMENDATIONS FOR GOVERNMENT USE OF DRONE AIRCRAFT 6–7 (2011) [hereinafter ACLU Report]. Law enforcement agencies have expressed great interest in using drones for surveillance purposes. Id. However, they are also interested in using armed drones specifically for dangerous suspects and crowd control. Kylie Bourne, Police Militarisation Takes off with Weaponised CrowdControl Drones, THE CONVERSATION (Sept. 13, 2015, 9:23 PM), http://theconversation.com/police-militarisation-takes-off-with-weaponised-crowdcontrol-drones-46744 (“Although [the] military drones are equipped with lethal weaponry and are much larger than the drones that police forces use, all UAVs are operated remotely via a laptop with a game-like console. This is part of their appeal: personnel can unleash lethal force without exposure to counterforce.”). 7. “In 2015, 45 states considered 168 bills related to drones. Twenty states– Arkansas, California, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Michigan, Mississippi, Nevada, New Hampshire, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Virginia and West Virginia–passed 26 pieces of legislation. Five other states–Alaska, Georgia, New Mexico, Pennsylvania and Rhode Island–adopted resolutions related to drones.” Current Unmanned Aircraft State Law Landscape, NAT’L CONF. ST. LEGISLATURES (June 9, 2016), http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-lawlandscape.aspx [hereinafter State Law Landscape].

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The domestic use of armed drones by law-enforcement agencies brings to light a new facet of the reasonableness standard of the Fourth Amendment.8 Certain state law-enforcement agencies9 may now legally use drones armed with tear gas, pepper spray cartridges, rubber bullets, bean bags, blinding lasers, paintballs, and barbed Tasers.10 The officer deploying these methods of force does not have to be present at the scene because officers can deploy force through the drone from a distance.11 This Comment focuses on nonlethal armed-drones, as it is currently legal; however, the same analysis may be applied to drones armed with deadly force.12 While commentators have argued that the current use-of-force standard may need to be re-examined in light of drone technology,13 8. See U.S. CONST. amend. IV. 9. H.R. 1328-64, 1st Sess., § 5 (N.D. 2015) (allowing all state law enforcement agencies in North Dakota to use nonlethally armed drones). 10. See Skunk Riot Control Copter, DESERT WOLF, http://www.desertwolf.com/dw/products/unmanned-aerial-systems/skunk-riot-control-copter.html (last visited June 24, 2016). 11. Id. (showing that nonlethally armed drones, specifically the Skunk Riot Control Copter, can remotely deploy force); Susanna Kim, Texas Start-up Tasers Intern Via Stun-Copter to Spark Discussion About Tech and SXSW, ABC NEWS (Mar. 10, 2014), http://abcnews.go.com/Business/intern-tasered-drone-sxswexplains-feels-zapped/story?id=22848505 (showing that the Tasers can be remotely targeted and deployed with ease). 12. This Comment proposes a framework for analyzing the use of nonlethally armed drones because it is what courts will soon have to consider. The entire analysis, with the addition of the new factor, considers the totality of the circumstances and pays special attention to (1) the severity of the crime, (2) whether the suspect poses an immediate threat to the safety of the officers or others, (3) whether the suspect is actively resisting arrest or attempting to evade arrest, and (4) whether the officer was present on the scene. See Graham v. Connor, 490 U.S. 386, 396 (1989). Nonetheless, there will come a day where lethally armed drones are used by law enforcement. In pursuing continued jurisprudential consistency, this Comment’s proposed analysis would be the identical for nonlethally armed drones as for lethally armed drones. The same presence concerns found in non-lethal use of force by drones is multiplied in lethal force by drones. 13. Eric Brumfield, Armed Drones For Law Enforcement: Why It Might Be Time To Re-Examine The Current Use Of Force Standard, 46 MCGEORGE L. REV. 543, 565 (2014) (quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)) (“As the Graham v. Connor standard states, whether an officer’s actions are ‘objectively reasonable’—and therefore not excessive—’must be judged from the perspective of a reasonable officer on the scene.’ Until the Supreme Court develops a different standard or modifies the ‘on the scene’ standard to incorporate an officer’s perspective from a drone camera, LEAs will need to develop a drone UOF policy

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current regulations and use-of-force case law are adequate to handle the increasing interest in using drones.14 The current Fourth Amendment standard is sufficient for this new technology—by considering officer presence.15 No cases directly address presence because, until recently, officers were unable to deploy force on suspects without being present. However, because presence is no longer necessary for the deployment of force, this fourth factor must be added to the Graham16 test to account for new implications of this technology. Reasonableness is determined by considering the totality of the circumstances.17 With regard to use of drones by law enforcement, there will always be an unspoken question at the foundation of every totality-of-the-circumstances analysis—would an off-site operator deploy similar amounts of force as an on-site operator? An off-site operator is not the same as an on-site operator because of the lack of valuable sensory information available to the latter.18 There is also a legitimate reason to fear that an off-site operator will behave more aggressively than an on-site operator.19 Evidence exists that raises a that will not only meet the Graham standard, but also protect the public from abuse.”). 14. Jason Reagan, Drone Sales Figures for 2014 Are Hard to Navigate, DRONELIFE (Jan. 24, 2015), http://dronelife.com/2015/01/24/drone-sales-figures2014-hard-navigate/ (showing that the number of drones are increasing rapidly with projected sales numbers being in the tens of thousands in 2016). In 2014, Amazon alone reports “selling more than 10,000 drones a month.” Id. 15. See U.S. CONST. amend. IV; Graham, 490 U.S. at 396. 16. See Graham, 490 U.S. at 396. 17. Id.; see also U.S. CONST. amend. IV. 18. While off-site operation may be permitted depending on the tailored facts of each situation, frequently, off-site operation of a drone is unreasonable for the two reasons listed above. 19. See Albert Bandura, Moral Disengagement in the Perpetration of Inhumanities, 3 PERSONALITY & SOC. PSYCHOL. REV. 193 (1999), http://www.uky.edu/~eushe2/Bandura/Bandura1999PSPR.pdf (showing two of the theories of morale disengagement that will make higher levels of force more likely); Barry K. Smith, Note, The Fight Over Video Game Violence: Recent Developments in Politics, Social Science, and Law, 30 L. & PSYCHOL. REV. 185, 188 (2006) (quoting Kevin W. Saunders, A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice, 2005 UTAH L. REV. 695, 715 (2005)) (“A significant majority of scientific studies of the effects of media violence appear to support the statement that ‘[t]he scientific community has firmly concluded that the debate about the effects of media violence is over and that there is a clear connection between media violence and real world aggression.’”); Peter Olsthoorn & Lambèr Royakkers, Risks and

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concern that the remote operation of drones is akin to the operation of a video game, making the levels of force employed by an off-site operator higher than those employed by an on-site operator which affects whether the off-site operator of a drone is unreasonable.20 Accordingly, in light of these effects, for the use of force by a drone to be reasonable the absence of the operator must be considered as the fourth factor.21 This Comment, therefore, argues that the totalityof-the-circumstances analysis should examine officer presence, and specifically whether an officer can fully experience the situation. Section I provides a background for the Fourth Amendment reasonableness standard in use-of-force cases, and it evaluates categories of force. In Section II, there is an overview of drone technology today and an examination of the technology used when arming drones. It then explores the current state of the law specifically with regard to drones and discusses the legality in particular states for law-enforcement agencies to weaponize drones. Robots—Some Ethical Issues, SOC. SCI. RES. NETWORK (May 13, 2014), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2436309 (“The depersonalization of war can even go as far that the he would no longer be aware of the fact that he is actually involved in a real war. In the current situation it can already be hard to distinguish between a video war game and operating a drone. From a technological perspective it is only a minor step to let him think he is playing a computer game, and destroying enemy ‘avatars,’ while he is actually killing real people at the other side of the globe. From a moral point of view this would mean that soldier gets detached, both physically and emotionally, from his actions even further then at present is the case. . . . With such a distance—physical, but also psychological—between a soldier and the horrors of war, it has to be feared that killing might get a bit easier.”). 20. Bandura, supra note 19, at 193 (considering how “[t]he self-regulatory mechanisms governing moral conduct do not come into play unless they are activated. . . .”); Gregory Ferenstein, Weaponized Drones For Law Enforcement Now Legal In North Dakota, FORBES (Aug. 26, 2015, 3:21 PM), http://www.forbes.com/sites/gregoryferenstein/2015/08/26/weaponized-dronesnow-legal-inside-the-u-s-lawmaker-says-crimefighting-will-become-a-video-game/ (comparing the use of force through a drone to a video game); Olsthoorn & Royakkers, supra note 19 (“Showing abstract images would in fact dehumanize the enemy, and as a result would desensitize military personnel operating unmanned systems even further. In this case, it is no longer the real war that is numbing the soldier, but the digital recoding of that war. The depersonalization of war can even go as far that the he would no longer be aware of the fact that he is actually involved in a real war. In the current situation it can already be hard to distinguish between a video war game and operating a drone.”). 21. It should be added to the test found in Graham, 490 U.S. at 396, as an additional fourth factor.

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This Comment C arg gues in Secttion III thatt an on-site operator m more fully experiences the t situation n and also tthat an off-ssite operatorr is more aggressive a th han an on-sitte operator aand more likkely to empploy higher levels of fo orce. Finally, Section IV V provides a sample pollicy for dom mestic law-eenforcementt agencies tto comply w with the fouurth presencce factor. I.

USE OF FORRCE

Thee Fourth Am mendment waas ratified ovver 200 yearrs ago to defe fend 22 the con nstitutional rights r of the people, and it is a cornerstonee of Americcan society as a a whole. The Fourth Amendmennt provides ttwo essentiaal protection ns to Americcan freedomss: it protectss people agaiinst unreaso onable searcches and seiizures and reequires probbable cause for warrants.23 This Co omment focu uses on the second prottection whichh is “the riight of the people to be secure . . . againsst unreasonaable searchees and seizurres.”24 Unreaasonable seaarches or seiizures are thhose that inttrude upon th he sphere off a reasonablle expectatioon of privacyy,25 or are performed p in n a manner that does noot comport w with the Fouurth 26 Amend dment standaard of reason nableness. The focus hhere will bee on the reaasonablenesss of seizurees performedd using forcce, particulaarly force by drone. 27 A.

Sea arches and SSeizures

As all people have h a right to be free fr from unreasoonable searcches and seiizures by th he governmeent, two inqquiries framee this analyysis: whetheer the citizen n has been searched orr seized, annd whether tthat 22. U.S. U CONST. am mend. IV (notiing that the Foourth Amendm ment was ratifieed in 1791). 23. Id. I (showing an n important distinction that, while warrantts must issue uupon probablee cause, the Fo ourth Amendm ment does not always requirre a warrant ffor a search to o be reasonablee). 24. Id. I 25. Katz K v. United d States, 389 U.S. U 347, 354 (1967) (Harlaan, J., concurrring) (writing that “a person n has a constittutionally prottected reasonabble expectationn of privacy.””). 26. The T reasonableeness analysis considers c the ttotality of the ccircumstances and pays speecial attention to t whether a su uspect is engagged in a severe crime, threatenning the safety of the offiicer or others, or actively eevading or ressisting arrest. See Graham v. Connor, 490 0 U.S. 386, 396 (1989). 27. This T Comment focuses on non nlethal force uused by a dronee.

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action was reasonable.28 Before performing the reasonableness analysis, it is first necessary to determine whether a search or seizure of the person has actually occurred.29 The question becomes, does the use of force by a drone constitute a seizure? The United States Supreme Court in United States v. Mendenhall, provides two elements to determine whether a seizure has occurred under the totality of the circumstances: (1) a show of authority, such that a reasonable person would have believed that he was not free to leave; and (2) either the submission to that authority, or a physical use of force.30 A show of authority is an objective test that considers whether a reasonable person would have believed that he or she was free to leave.31 At first, there appears to be a potential deficiency in the show of authority by a drone because people are not accustomed to equating the appearance of a drone with that of an authority figure.32 This apparent deficiency can be easily solved. Drones can be equipped with speakers and microphones.33 The law-enforcement agencies would be able to demarcate or paint the drones in the colors of the officer uniforms so that people can differentiate law– enforcement-agency drones from private drones.34 The paint, logos, and speakers may be sufficient to satisfy the show of authority test. 28. The amount of force used is relevant to a seizure, whereas the manner in which a search was conducted is relevant to a search. Therefore, the categories of force discussed below will relate to seizures, not searches. 29. California v. Hodari D., 499 U.S. 621, 627–28 (1991) (citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). 30. Id. 31. Id. 32. All citizens can potentially possess a nonlethally armed drone, not just law enforcement officers. A drone by itself currently does not, and should not, gain the recognition of an authority figure the same way a Taser or baton, alone, would not warrant recognizing police authority. However, a drone with law enforcement markings and speakers may be found to be an appropriate substitution, depending upon the specific factual circumstances of the situation. See Nicholas Rondinone & Christine Dempsey, ‘Flying Gun’ Drone Inventor Charged with Assaulting Police, POLICE ONE (July 25, 2016), https://www.policeone.com/police-products/PoliceDrones/articles/8689287-Flying-Gun-drone-inventor-charged-with-assaultingpolice/ (showing that citizens are able to fashion armed drones themselves, and, therefore, they should not gain the recognition of the authority figure); see also Skunk Riot Control Copter, supra note 10 (showing that pre-armed drones are also available for purchase). 33. Skunk Riot Control Copter, supra note 10. 34. See generally id. (demonstrating a drone model, which suggests that there is ample space to place markings of some variety on the drone unit).

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Thee second parrt of the test is the subm mission to aauthority or the 35 use off physical force. If a suspect submits too the audittory commaands coming g from a dro one or the offficer, then tthe suspect has 36 submittted to auth hority. Sim milarly, if an officer deploys foorce through h the drone37 to actuatte an arrest,, then the fforce would be charactterized as th he use of physical p forcce. There iss no reasonn to depart from the esstablished seizure test simply becaause an offiicer deployeed force usin ng a drone. For examplee, seizure prrinciples shoould be the same wheth her the Taseer was deplooyed throughh a drone orr in person..38 Thereforee, the answer to the quesstion above is yes—the use of forcce by an offficer using a drone am mounts to a seizure unnder Menden nhall.39 B.

Reasonablen R ness

Offficers may use a reasonaable amount of force durring a seizurre.40 Fourth Amendmen nt jurisprudeence has lonng recognizeed that the dduty to mak ke an arrestt necessarily y carries w with it the right to usee a reasonaable degree of o physical coercion, c or threat thereeof, to compllete it.41 Ex xcessive forcce is any fo orce executeed during thhe seizure oof a 35. California C v. Hodari H D., 499 U.S. 621, 627––28 (1991) (ciiting United Sttates v. Mend denhall, 446 U.S. 544, 554 (1980)) (“It sayys that a persoon has been seized ‘only if,’ not that he has h been seizeed ‘whenever’;; it states a neecessary, but nnot a sufficien nt, condition fo or seizure—or, more preciselyy, for a seizure effected throough a ‘show of authority.’ Mendenhall esstablishes that the test for existence of a ‘shhow of autho ority’ is an objjective one: not n whether thee citizen perceeived that he was being ordered to restricct his movement, but whetheer the officer’s words and acttions would haave conveyed that t to a reason nable person.”)). 36. Mendenhall, M 44 46 U.S. at 553 (showing that “a person is ‘sseized’ only whhen, by mean ns of physical force or a sho ow of authoritty, his freedom m of movemennt is restraineed.”). A person n’s movement would be resstricted by the force or show w of authority y whether it em manates from an n officer directtly or via the ddrone. 37. Id. I The force an a officer may y deploy throuugh a drone inncludes paintballs, Tasers, beanbags, b rubb ber bullets, dyee packs, and othhers. Skunk Rioot Control Coppter, supra no ote 10. 38. See S generally Mendenhall, M 44 46 U.S. at 554. 39. See S id. (noting g that there iss no differentiaation recognizzed in the seizzure principlees for new way ys of using the same technoloogy). 40. Terry T v. Ohio, 392 U.S. 1, 22 2–27 (1968) (cconsidering reaasonableness aas to “whether the officer’ss action was justified j at its inception, annd whether it was reasonab bly related in scope s to the cirrcumstances w which justified tthe interferencce in the first place.”). 41. Graham G v. Con nnor, 490 U.S. 386, 396 (198 9) (citing Terrry, 392 U.S. at 22– 27).

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person that falls short of the Fourth Amendment’s objective reasonableness standard.42 Courts have established specific guidelines as to what constitutes excessive force and what force is reasonable.43 While the courts look at the totality of the circumstances in determining reasonableness,44 the category of force used may determine whether it was reasonable.45 There are two main categories of force used during a seizure: lethal and non-lethal.46 Lethal or deadly force is defined as violent action known to create a substantial risk to cause death or serious bodily harm.47 An example of deadly force entails officers shooting at a suspect or shooting the suspect.48 Whether the bullets hit or fatally wound the suspect is not determinative; the officer has used deadly force.49 This Comment will focus on non-lethal force because law-enforcement agencies are more likely to use non-lethal armed

42. Id. at 388, 390 (proposing some factors to be considered in determining when there is excessive use of force: (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) “[w]hether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm”). 43. Id. at 396. 44. Id. 45. Tennessee v. Garner, 471 U.S. 1, 2 (1985) (“Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect’s rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.”). Under Garner, a suspect attempting to escape is not, itself, sufficient for use of deadly force, whereas under the Graham test it may be sufficient. Garner, 471 U.S. at 2; Graham v. Connor, 490 U.S. 386, 396 (1989). 46. The difference in punishment shows the differentiation between deadly and non-lethal force. Garner, 471 U.S. at 2. Deadly force is also referred to as lethal force. Lethal, BLACK’S LAW DICTIONARY (9th ed. 2014). 47. Deadly Force, BLACK’S LAW DICTIONARY (9th ed. 2014). 48. The Use-of-Force Continuum, NAT’L INST. JUST. (Aug. 4, 2009), http://www.nij.gov/topics/law-enforcement/officer-safety/use-offorce/pages/continuum.aspx (showing that “hard hand strikes” include punches and kicks). 49. Id.

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drones.50 Generally, non-lethal force is force not likely to cause death or great bodily harm.51 The non-lethal methods of force, which are generally accepted,52 are OC spray,53 Tasers, beanbag guns, baton, hard hand strikes,54 soft hand techniques,55 verbal commands, and presence.56 The reasonableness standard requires a balancing test where the court balances the nature and quality of the intrusion on the person’s Fourth Amendment rights against the governmental interests alleged.57 The court analyzes the totality of the circumstances to determine whether the search or seizure was reasonable.58 This 50. “The intrusiveness of a seizure using deadly force is unmatched.” Garner, 471 U.S. at 9. When determining the reasonableness of the use of deadly force, while the base analysis is the same, there is a heightened standard the government must meet. Id. While an officer may have probable cause to seize a suspect with force, the officer may not always use deadly force because a person has a fundamental interest in his or her own life. Id. Therefore, it is not constitutional to use deadly force to seize a non-violent fleeing suspect. Id. at 10. However, when a suspect poses an immediate threat to an officer or others, then the use of deadly force becomes reasonable. Id. If a suspect threatens an officer or another person with a weapon, and there is probable cause to believe he or she has committed a crime or is about to commit a crime, then the officer may use deadly force to prevent escape. Id. at 11. 51. Less Lethal, BLACK’S LAW DICTIONARY (9th ed. 2014) (“A weapon that inflicts pain or discomfort short of death, as by firing bean bags or rubber bullets, or by discharging electromagnetic, acoustic, or other energy such that the target may be incapacitated but [usually] not seriously injured.—Also termed less-lethal force; nonlethal weapon; nondeadly weapon.”). 52. Excessive and Lethal Force? Amnesty International’s Concerns About Deaths and Ill-Treatment Involving Police Use of Tasers, AMNESTY INT’L 29–30 (Nov. 29, 2004), http://www.amnestyusa.org/node/55449 [hereinafter Amnesty Report]. 53. “OC spray” is the term police use for the substance commonly known as pepper spray. See generally Brianna Lee, 5 Things You Need To Know about . . . Pepper Spray, PBS.ORG (Dec. 1, 2011), http://www.pbs.org/wnet/need-toknow/five-things/pepper-spray/12472/ . 54. The Use-of-Force Continuum, supra note 48 (showing that hard-hand strikes include punches and kicks). 55. Soft hand techniques are wristlocks, grabs, and other types of holds. Id. 56. The continuum of force used by most law enforcement agencies ranges from the lowest methods (presence) to the highest non-lethal methods (including pepper spray, Tasers, batons) to lethal force (firearms). Id. 57. Tennessee v. Garner, 471 U.S. 1, 7–8 (1985). 58. Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)) (“Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. . . .’

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analysis requires special attention to (1) the severity of the crime; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest.59 While the reasonableness analysis is well settled, applying the reasonableness analysis to advancing technology may present unique questions. Arming police drones presents the question of how a court would apply the existing reasonableness standard to progressing technology. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene.60 Rather than considering the force with perfect hindsight in the peace of the judge’s chambers, the reasonableness analysis must recognize that officers are often forced to make split-second decisions—in tense, uncertain, and rapidly evolving circumstances.61 Therefore, this Comment argues for the recognition of a fourth factor: operator presence. II.

APPLICATIONS OF DRONE TECHNOLOGY

Drone technology is versatile, dynamic, and complex. There are two critical components to consider: technological features and legal restrictions. Drone technology is rapidly evolving and changing. More features are becoming available all the time. From a legal perspective, drones are regulated by the Department of Transportation (DOT), the Federal Aviation Administration (FAA), state legislatures, and the judicial system. This section provides an [H]owever, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”). 59. Id. 60. Terry v. Ohio, 392 U.S. 1, 20–22 (1968). 61. Graham, 490 U.S. at 396–97 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (“With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: ‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ . . . violates the Fourth Amendment. The calculus of reasonableness must embody . . . allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”).

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overvieew of dronee technology y and both tthe existing and upcom ming regulations required to fully ap ppreciate droones. A.

Overvieew of Drone Technology

Thee drone itself is one com mponent of a system thatt is required for operation, called an unmann ned aerial ssystem (UA AS).62 UAS S is compriised of thee drone, th he ground control sysstem, and the operato or.63 There are a several styles of drrones: remootely controllled drones;; pre-prograammed dron nes that caan be progrrammed to fly without the guidan nce of an operator; o andd “smart” ddrones that can adjust themselves during fligh ht.64 This C Comment foocuses only on drones that are con ntrolled rem motely by ann operator. T These remottely controllled drones are a the mostt advanced fform of dronnes and are the most ap ppealing and d useful to laaw-enforcem ment agencies.65 62. Suraj S G. Guptaa, Review of Unmanned U Airrcraft System (UAS), 2 INT’L J. ADVANC CED RES. COMPUTER & ENGINEERRING TECH. 1646 (20013), http://ww ww.uxvuniverssity.com/wp-co ontent/uploads//2014/04/Review-of-UnmannnedAircraft--System-UAS.p pdf (“Unmann ned Aircraft S Systems (UAS), also commoonly referred to as Unmanned Aerial Systeems is definedd as a system, w whose componnents include the air vehiclles and associiated equipmeent that do noot carry a hum man operator, but instead fly f autonomoussly or are rem motely piloted aand all equipm ment, UAS mu ust be consid dered in a sysstems context which includdes the command, control and a communiccations (C3) sy ystem, and perrsonnel necesssary to controll the unmanneed aircraft.”). 63. Id. I at 1647 (“A An unmanned aircraft a system m is a system ccomprised of thhree main features: the airrcraft, the Gro ound Control Station (GCS S or C3) and the operator.”). 64. Veronica V E. McKnight, M Dro one Technologgy and the Foourth Amendm ment: Aerial Surveillance S Prrecedent and Kyllo K Do Not A Account for Cuurrent Technollogy and Privvacy Concernss, 51 CAL. W. W L. REV. 2633, 265 (2015) (citing Myose & Strohl, supra s note 1) (“There are th hree types of drones: (1) thhe preprogramm med drone; (2) the smarrt drone; and d (3) the rem motely pilotedd drone.”). ““The preprogrrammed drone operates thro ough a timer loocated on the aircraft; the ppilot pre-scheedules and pro ograms maneu uvers and diffferent settings involving sppeed, destinatiion, and altitud de.” Id. (citing Myose & Stroohl, supra note 1). “[T]he sm mart drone’s sensors and on-board o comp puter adjust coourse and altittude during fliight, allowing g for more soph histicated uses..” Id. (citing M Myose & Strohll, supra note 1)). Pilots may m maneuver [the remotely controlled] drrone in real tim me, through raadio links, du uring the entirre length of th he drone’s jourrney. Operatorrs may also use a laser to connect the drrone to an enem my target. Rem motely pilotedd drones are usseful for recon nnaissance and d information gathering, g becaause they are eqquipped with raadar or infrared sensors, wh hich enable pilo ots to see imaggery in real timee. Id. (citin ng Myose & Sttrohl, supra notte 1). 65. Myose M & Stroh hl, supra note 1. 1

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The adaptive capacity of drones makes them an attractive option for law-enforcement agencies.66 Drones come in a variety of sizes with dimensions ranging from that of a hummingbird to that of a small aircraft.67 This adaptive capacity allows a drone to house a wide range of technology such as high-powered lenses, global positioning systems, high-definition color cameras, thermal cameras, night-vision cameras, sensors, speakers, microphones, and full telemetry data links.68 Additionally, drones are able to house full flight logs, mission notes, and video and audio recording.69 These features make drones perfectly suitable for law enforcement use. Ground control systems have become drastically smaller, which is the most recent breakthrough in drone technology.70 Several drone models can be controlled by a laptop,71 while others can be controlled through a smartphone application.72 These technological breakthroughs eliminate the need for a complex, off-site system and allow the operator to easily control the drone from the scene.73 Having the ability to operate a drone directly from the officer’s laptop or smartphone makes having an on-site operator more readily feasible.74 In fact, many police vehicles are equipped with laptops,75 and many officers likely have smartphones.76 Similar to the other

66. 67. 68. 69. 70.

See ACLU Report, supra note 6, at 6–8. Id. at 2–3. See Skunk Riot Control Copter, supra note 10. Id. See Stephen Dean, New Police Drone Near Houston Could Carry Weapons, CLICK2HOUSTON (Oct. 29, 2011, 5:38 AM), http://www.click2houston.com/news/New-Police-Drone-Near-Houston-CouldCarry-Weapons/-/1735978/4717922/-/59xnnez/-/ index.html (noting that the drone can be controlled by a laptop computer). 71. Id. 72. Parrot AR Drone 2.0, PARROT, http://ardrone.parrot.com/parrot-ar-drone/ en/where-to-buy/ (last visited June 24, 2016). 73. See Dean, supra note 70. 74. See id.; Parrot AR Drone 2.0, supra note 72. 75. See David J. Roberts, Technology Is Playing an Expanding Role in Policing, POLICE CHIEF (Jan. 2011), http://www.nxtbook.com/nxtbooks/ naylor/CPIM0111/#/72. 76. Cf. Aaron Smith, U.S. Smartphone Use in 2015, PEW RES. CTR. (Apr. 1, 2015), http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/ (noting that “64% of American adults now own a smartphone of some kind.”).

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specialty units, cerrtain officerss could carryy the droness in their pollice nal training.7 7 vehiclees and compllete addition B.

Armed Dro nes

Dro ones armed with vario ous measurees of non-leethal force are currenttly availablee for purchaase.78 Deserrt Wolf is one of seveeral compan nies that offfer non-leth hal armed ddrones for ppurchase.79 T The flexibillity of dronee design opeens the posssibility of ussing alternattive measurres of crowd d control.80 Such S measuures include paintballs,811 or 82 2 the “acctive deniall system,” as well aas an assorttment of otther alternattive crowd d-control measures m that are currently in 83 develop pment. On ne model is the Desert W Wolf “Skunnk Riot Conntrol Copter.”84 Buyers can equip this modeel to house the particuular payload ds that the buyer chooses.85 This model featuures a standdard four-baarreled desiign capablee of firingg twenty ppaintballs86 per second.87 The pain ntball cartrid dges can be ffilled with ppepper sprayy or

77. Cf. C Sample K-9 K- Unit Policcy, EXCEL K--9, http://excellk9.com/compaanypolicy/ (last visited d June 14, 2016); Speccialty Units, BOISE POLLICE, http://po olice.cityofboise.org/home/specialty-units/ ((last visited Febb. 20, 2016). 78. See S Skunk Rio ot Control Co opter, supra nnote 10. Pre-aarmed drones are currently y available for f purchase, which show ws the ease w with which llawenforcem ment agencies can obtain th hem. See id. H However, theree are instances of savvy ciivilians engineeering imitation n models. Seee Rondinone & Dempsey, suupra note 32. K Stelmack,, Weaponized Police P Droness and Their Eff ffect on Police Use 79. Kyle of Forcee, 15 U. PITT. J.. TECH. L. & POL O ’Y 276, 278 (2015). 80. See S Skunk Riot Control Copteer, supra note 110. 81. See S id. 82. Brad B Turner, Cooking C Protesstors Alive: Thhe Excessive-F Force Implicattions of the Active Denial System, S 11 DUKE U L. & TECH H. REV. 332 (2 2012) (“It goess by differentt names: ‘pain ray,’ ‘heat ray y,’ and ‘ray guun’ are some off its more coloorful monikers. The United States military y calls it the ‘A Active Denial System’ (ADS) and it is unlik ke any weapon n ever used.”). 83. See S ACLU Rep port, supra notee 6, at 5. 84. Skunk S Riot Con ntrol Copter, su upra note 10. 85. See S id. 86. Paintballs P are currently c not an a accepted, nnon-lethal mean ans of using foorce. Amnesty y Report, suprra note 52, at 1. 1 However, thhis fact does nnot preclude fuuture use. 87. Stelmack, S supra a note 79; Skun nk Riot Controol Copter, suprra note 10.

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dye.88 Other O option ns for this model m includee blinding laasers and stroobe 89 lights. An important feature f is thee manual killl switch.90 T The kill swiitch is locaated on the drone unit and is not accessible from a rem mote ground d control sy ystem.91 If the drone m malfunctioned, an off-site operato or is unable to access th he kill switcch. Considerr the follow wing examplle: A weapo on, such as a barbed Tasser is attacheed to the droone and maalfunctions while w being deployed. d Thhis leaves ann off-site pollice officer to watch heelplessly as the weaponn continues to malfuncttion and eleectrocute thee suspect. A scenario succh as this is unquestionaably unreaso onable and also a an exceessive use oof force, dem monstrating the need fo or operator presence. p In light of thee recent avaailability of these dronee models, laawenforceement agenccies can no ow easily ppurchase non-lethal arm med 92 drones outfitted with w a varriety of weeapons. Itt is becom ming increassingly likely that a law-enforcementt agency wiill use this nnew technollogy.93 The FAA curren ntly regulates drone use;;94 thereforee, to fully understand u the states’ role in leggalizing nonn-lethal arm med drones,, the federal regulations must first bee consideredd. C.

Curren nt Federal Avviation Admiinistration R Regulations

Thee FAA heav vily regulatees drones forr airspace, ccommerce, aand safety concerns.95 As drones become b reassonably affoordable, fedeeral and staate regulation ns are emerg ging to respoond to safetyy, security, aand

88. See S Skunk Riot Control Copteer, supra note 110. 89. See S id. (the blin nding lasers aree “Bright Eye S Safe Lasers”). 90. See S id. (the kill switch appeaaring on the lefft side of the ppictured dronee). A kill switch is “A mech hanism for swittching off a maachine abruptlyy, especially inn an emergen ncy.” Kill Sw witch, OXFOR RD DICTIONA ARIES ONLINE E (2015), htttp:// www.ox xforddictionariees.com/us/defin nition/american an_english/kill--switch ((last visited Feb. F 20, 2016). 91. See S Skunk Riot Control Copteer, supra note 110. 92. See S generally id. i (explaining g that these droones have groown into the hhightech surv veillance and UAV U marketplaaces). 93. See S generallyy Domestic Drones, ACCLU.ORG, httpps://www.aclu.org/ issues/prrivacy-technolo ogy/surveillancce-technologiees/domestic-droones (last vissited June 24, 2016). S UAS Notice of Proposed Ruulemaking, FFAA.GOV, httpps:// 94. Small www.faaa.gov/uas/nprm m/ (last visited June 24, 2016)) [hereinafter F FAA Operationns]. 95. Id. I

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privacy concerns regarding private drone operation.96 The use of armed drones by law-enforcement agencies is imminent, and the issue of how to handle the drones is one that will only grow as drones become increasingly popular.97 Conservatively, projections estimate at least 700,000 drone purchases this year, with over one million drones privately owned at present.98 This measure of growth will be exponential: by 2020, approximately 30,000 drones or more may be flying in the skies at any one time.99 Current regulations do not properly handle the growing volume of drone use.100 Several recent developments have occurred in response to the proliferation of drones. Congress passed the FAA Modernization and Reform Act of 2012 to address this growing interest in the use of drones.101 It encouraged federal and domestic law-enforcement agencies around the United States to implement guidelines for using unarmed drones for surveillance.102 This act also required the FAA to adopt regulations for the use of drones.103 In

96. Tyler Hite, Domestic Presence in the Skies: Why Americans Should Care About Private Drone Regulation, 31 SYRACUSE J. SCI. & TECH. L. REP. 184 (2015) (considering “capabilities and functions of privately owned drones, developed for use by private individuals, but will also look to the developing regulations already emanating from both state and federal governments, and how those regulations will shape the expansion of the private drone market”). 97. Reagan, supra note 14 (noting that total drone sales are up in the millions, with the numbers of units being sold in the tens of thousands or higher). 98. Craig Whitlock, Federal Regulations to Require Registration of Recreational Drones, THE WASH. POST (Oct. 19, 2015), https://www.washingtonpost.com/world/national-security/federal-regulators-torequire-registration-of-recreational-drones/2015/10/19/434961be-7664-11e5-a958d889faf561dc_story.html. 99. Shaun Waterman, Drones Over U.S. Get OK By Congress, WASH. TIMES (Feb. 7, 2012), http://www.washingtontimes.com/news/2012/feb/7/coming-to-asky-near-you/?page=all. 100. Timothy M. Ravich, The Integration of Unmanned Aerial Vehicles Into the National Airspace, 85 N.D. L. REV. 597, 600 (2009) (considering how “[t]he absence of a distinctive body of rules and regulations integrating UAV flight into the national airspace, coupled with an existing time-consuming certification process for UAV flight in the first place, is an impediment and constraint for present and future UAV development.”). 101. FAA Modernization and Reform Act of 2012, Pub. L. No. 112–95, §§ 334– 36, 126 Stat. 11, 72–77. 102. Id. 103. Id.

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response to this act, the FAA adopted a regulatory framework.104 Recently, United States Transportation Secretary, Anthony Foxx, announced that a task force was appointed to create recommendations for guidelines,105 which involve the registration of individual pilots and an age requirement.106 Foxx also announced that current and future drone owners will be required to register, as well as private and commercial drone owners.107 The goal of registration is for drone owners to be aware of, and accordingly follow, the new rules regarding drone operation.108 There is currently a preregistration form available on the DOT website.109 The FAA has proposed a framework of safety regulations for drones, which includes a number of restrictions.110 In these safety guidelines, there is a visual line-of-sight restriction.111 As this may soon be a regulation for private hobbyist drone operators, it is logical that the same regulation should also be placed upon law-enforcement agencies. The FAA sees operator presence as a safety consideration 104. Jol A. Silversmith, You Can’t Regulate This: State Regulation of the Private Use of Unmanned Aircraft, 26 NO. 3 AIR & SPACE LAW. 1, 23 (2013). 105. Press Release, U.S. Dep’t of Transp., U.S. Transp. Sec’y Anthony Foxx Announces Unmanned Aircraft Registration Requirement (Oct. 19, 2015) (“The task force will be composed of 25 to 30 diverse representatives from the UAS and manned aviation industries, the federal government, and other stakeholders.”), http://www.transportation.gov/briefing-romm/us-transportation-secretary-anthonyfoxx-announces-unmanned-aircraft-registration. 106. UNMANNED AIRCRAFT SYSTEMS REGISTRATION TASK FORCE AVIATION RULEMAKING COMMITTEE, TASK FORCE RECOMMENDATIONS FINAL REPORT (2015), http://www.faa.gov/uas/publications/media/RTFARCFinalReport_11-2115.pdf (requiring that drone pilots register as individuals but not requiring specific drone units to be registered). 107. Id. 108. Id. 109. Drone Registration, FED. DRONE REGISTRATION, http:// www.federaldroneregistration.com (last visited June 26, 2016). 110. FAA Operations, supra note 94 (including the following restrictions: “Fly below 400 feet and remain clear of surrounding obstacles, keep the aircraft within visual line of sight at all times, remain well clear of and do not interfere with manned aircraft operations, don’t fly within 5 miles of an airport unless you contact the airport and control tower before flying, don’t fly near people or stadiums, don’t fly an aircraft that weighs more than 55lbs, don’t be careless or reckless with your unmanned aircraft.”). 111. Id. The DOT task force will consider these regulations and implement restrictions on drone use. Press Release, supra note 105. The government will likely soon require private drone users to operate drones within their line of sight. Id.

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for usee of droness,112 making g presence a precedenntial means to regulate the use off drones. Staate legislatuures are begiinning to alllow the use of non-lethaal armed dro ones by law--enforcemennt agencies. D.

Do omestic Dronne Use

States are on th he cusp of adding non-leethal armed drones to thheir arsenalls. Various agencies haave already implementeed drones foor a numberr of purposees.113 Droness are currenntly being ussed for milittary purposees. Primitive versions have h been uused by thee military since 114 World War I. Reecently, dom mestic governnment agenccies have beggun to usee drones.1155 Federal governmentt agencies currently use surveilllance droness for a varietty of beneficcial uses, inccluding disasster relief efforts, mo onitoring crrops, surveyying storm damage, aand 1 tracking poachers.116 Exampless of this use include prooviding imaggery over th he Californiaa wildfires in n 2008, the H Haitian earthhquake in 20010, and the Japanese tsunami disaster in 20011.117 Seveeral state laawenforceement agenccies also usee surveillannce drones.1118 In 2011, the Montgo omery Cou unty Sherifff’s Office in Texas purchasedd a “Shado owHawk” unmanned u helicopter drone.119 T This drone is equippeed with a camera, and d more impportantly, itt possesses the capabillity of being armed with non-lethal fforce optionss.120 112. FAA F Operation ns, supra note 94. 9 113. State S Law Lan ndscape, supra note 7 (“Statee legislatures aacross the couuntry are debaating if and how w UAS techno ology should bbe regulated, taaking into accoount the beneefits of their usse, privacy con ncerns and theeir potential ecconomic impacct.”). The stattes have conssidered uses generally g regaarding surveilllance, with N North Dakota legalizing l the use u of non-leth hal armed dronees. Id. 114. John J Sifton, A Brief Historry of Drones,, THE NATION N (Feb. 7, 20 012), http://commcns.org/15mUS9i (“[a]ir warfare has bbeen with us ffor over a hunddred years . . . and the devellopment of dro ones was in thee works from thhe start.”). 115. Joan J Lowy, FAA F Drone Request: R Adm ministration M Moves to Exppand Unmann ned Aircraft forr Domestic Civvilian Use, HU UFFINGTON POS ST (Feb. 15, 20 013, 8:33 AM), htttp://www.huffi fingtonpost.com m/2013/02/15/ffaa-drone-requuest_ n_26939 982.html. 116. Id. I 117. Id. I 118. Drone D Case Stu udies, supra no ote 4. 119. Dean, D supra no ote 70. 120. Buck B Sexton, Aerial A ‘Shadow whawk’ Police D Drones Can N Now Deploy Taasers & Tear Gas, THE BLAZE L (Mar. 12 2, 2012, 4:03 PM), http://w www.theblaze.ccom/ stories/2 2012/03/12/wan nt-to-see-the-aeerial-drone-pollicecouldsoon--deploy-in-youurtown/.

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More recently, in July 2015, North Dakota became the first state in the United States to allow law-enforcement agency drones to carry weapons,121 even though no law-enforcement agency has purchased one yet.122 While the original bill banned non-lethal armed police drones, the North Dakota Peace Officers Association lobbied to remove this restriction by only banning lethally armed drones.123 It is currently unclear whether any law-enforcement agency plans to incorporate armed drones in North Dakota; however, it is clear that law-enforcement agencies are getting closer to using armed drones.124 Other states have taken a variety of approaches with some restricting Unmanned Aerial Vehicle use by private parties and lawenforcement agencies.125 The next logical step in this progression is for law-enforcement agencies to incorporate non-lethal armed drones into their arsenals. Law-enforcement agencies have already begun to use surveillance drones. It is only a matter of time before states begin to use non-lethal armed drones. III.

THE FOURTH REASONABLENESS FACTOR: PRESENCE

In Section III, this Comment will explore the fourth factor and why off-site drone operation has additional considerations to be analyzed. Off-site drone operation is often unreasonable for two reasons. First, an on-site operator more fully experiences the situation. An on-site operator has the advantage of analyzing more sensory information than does an off-site operator. Second, off-site drone operation also affects reasonableness, because distance has psychological impacts on the operator that makes the operator behave 121. H.R. 1328-64, 1st Sess., § 5 (N.D. 2015) (showing non-lethal armed drones are permitted); Ward-Bailey, infra note 122 (showing that the original draft of the bill banned all armed UAV use by law enforcement agencies, but due to lobbying, law enforcement agencies are now allowed to use non-lethal armed UAVs). 122. Jeff Ward-Bailey, North Dakota Becomes First State to Legalize Weaponized Police Drones, THE CHRISTIAN SCI. MONITOR (Aug. 27, 2015), http://www.csmonitor.com/Technology/2015/0827/North-Dakota-becomes-firststate-to-legalize-weaponized-police-drones. 123. See id. (showing that with the proactive lobbying of the original bill language, there is some interest by law enforcement to use non-lethal armed drones). 124. Id. 125. Silversmith, supra note 104, at 23 (“Since the act was adopted, bills that would restrict the use of UAVs have been proposed in most state legislatures.”). In 2015, the majority of states considered the use of drones with regards to surveillance. See generally State Law Landscape, supra note 7.

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more aggressively a y.126 The feaar is that thhe distance will turn rreal situatio ons into a video v game for the officcers.127 These two reasons of off-site drones thatt must be cconsidered aas a show implications i fourth factor. f A.

Sensory S Anaalysis

Opeerator preseence is ofteen requiredd to fully eexperience the situatio on.128 The cu urrent Fourth h Amendmeent framewoork assumes the presencce of the officer o deplloying forcee. An officcer must fuully experieence the siituation to be able too make a comprehenssive analysiis.129 Since reasonablene r ess is a fact-bbound analyysis, the officcers should be present to fully experrience the reelevant facts.130 Cou urts have req quired that th he reasonablleness of a pparticular usee of force be b judged fro om the persp pective of a “reasonablee officer on the 131 scene.”” Instead of o determiniing reasonabbleness from m the peace oof a judge’ss chambers, the analysis of reasonabbleness mustt allow “for the fact th hat police officers o are often forcced to makke split-secoond decisio ons—in circu umstances that t are tennse, uncertaiin, and rapiidly 132 evolvin ng.” The widespread use of thiss quote shoows that couurts have adopted the general notiion that preesence is soomehow keyy in determining reason nableness.133 While coourts do noot specify w why officerss on the scen ne are more equipped too determine rreasonableneess, it is lik kely that cou urts are look king to an offficer’s trainning and abiility to fully y experiencee the situatio on. In this caase, the trainning for an onsite and d off-site op perator is thee same, so thhe focus shifts to presennce. Off-sitee officers ex xperience the incident ddifferently beecause they are not preesent to fullly experien nce all evennts. Since tthese types of situatio ons are so faact-dependen nt, it stands to reason thhat an operaator 126. Olsthoorn O & Ro oyakkers, suprra note 19. 127. Ferenstein, F supra note 20 (qu uoting a North D Dakota House Representativee, “I think it’’s important to t maintain th he humanity iin making decisions to depploy weaponss against anoth her individual . . . . We can’t depersonalize it and make it like a video game.”); g see allso Olsthoorn & Royakkers, ssupra note 19. 128. See S U.S. CONSTT. amend. IV. 129. See S id.; Graham m v. Connor, 49 90 U.S. 386, 3997 (1989). 130. See S U.S. CONSTT. amend. IV.; Graham, 490 U.S. at 397. 131. Terry T v. Ohio, 392 3 U.S. 1, 20– –22 (1968). 132. Graham, G 490 U.S. U at 397. 133. Courts C have ciited this quotee on over 2,3000 occasions, thereby impliccitly adopting g the reality thaat courts may be b not as equippped to determiine reasonablenness as an offficer on the sceene, and must provide p defereence to the offiicer’s actions. S Seth W. Stoug ghton, Policing g Facts, 88 TUL U . L. REV. 847 7, 864–65 (20144).

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must be present in order to fully process and experience all necessary information. On-site officers have the advantage of being able to process the information using all five of their senses. Off-site officers only have the use of a two-dimensional display, supplemented by an audio feed.134 With high-definition, thermal, or night-vision cameras it is possible that operators may be able to perceive the incident in a manner that mimics but is not a substitute for presence. This may be one situation where the court would find the off-site operation of a drone reasonable. However, a camera pointed in one direction, even a wide lens, is not able to perceive the situation the same way an onsite officer would with all of the relevant facts. Cameras adjust slower than a person.135 An off-site operator viewing a display is not able to gauge distance by interpreting depth perception and analyzing spatial relationships in the same way that an on-site operator can.136 Further, an off-site operator does not have the advantage of peripheral vision.137 While the operator may still use the screen to target and deploy force, the on-site operator has the advantage of actual sight to supplement the display.138 Localization of sound is another way that an off-site operator is not able to fully experience the situation.139 Localization of sound, or 134. Skunk Riot Control Copter, supra note 10. 135. See id. (showing the time that it takes to readjust the drone and view the incident requires a delay). 136. Depth Perception, MERRIAM-WEBSTER ONLINE DICTIONARY (2015), http://www.merriam-webster.com/dictionary/depth%20perception (last visited Feb. 20, 2016) (“the ability to judge the distance of objects and the spatial relationship of objects at different distances”); Spatial Relationship, MOSBY’S MEDICAL DICTIONARY (9th ed. 2009) (“Orientation in space; the ability to locate objects in the three-dimensional external world by using visual or tactile recognition and to make a spatial analysis of the observed information. Spatial orientation normally is a function of the right hemisphere of the brain.”). 137. Peripheral, MERRIAM-WEBSTER ONLINE DICTIONARY (2015), http://www.merriam-webster.com/dictionary/peripheral (last visited Feb. 20, 2016) (showing that peripheral (vision) is defined as “of, relating to, or being the outer part of the field of vision”). 138. Kim, supra note 11 (showing that the Tasers can be targeted and deployed with ease and do not require the operator’s entire attention to be focused on the computer targeting screen). 139. JENS BLAUERT, SPATIAL HEARING: THE PSYCHOPHYSICS OF HUMAN SOUND LOCALIZATION 37 (rev. ed. 1997) (“Localization is the rule by which the location of an auditory event (e.g., its direction or distance) is related to a specific attribute

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spatial hearing, occurs when the brain identifies the location of a sound.140 The brain interprets several cues, including timing analysis, correlation analysis, time and level differences, spectral information, and vibrations.141 An off-site operator does not have the advantage of these cues, and therefore, will not be able to determine the origin of the sound and respond to that information.142 While both on-site and off-site operators may be able to use the drone speakers to hear the incident, only the on-site operator will be able to appreciate the full context of the events. The remaining three senses (touch, smell, and taste) will likewise not be engaged by an off-site operator.143 While the sense of touch may be relevant because an on-site operator may be able to sense vibrations of an approaching suspect’s footsteps, a drone offers no such information to an off-site operator. Likewise, only an on-site officer will also be able to smell smoke, gunshot residue, gasoline, and any number of other relevant odors. The sense of taste is relevant insomuch as taste and smell are related and aid each other in interpreting sensory information.144 Therefore, these examples show the ways that these three senses provide important supplemental information unavailable to off-site drone operators. Additionally, an on-site operator’s awareness of tense, uncertain, and rapidly evolving situations145 engages the operator’s adrenaline.146 The body’s production of adrenaline is an important or attributes of a sound event, or of another event that is in some way correlated with the auditory event.”). 140. Id. at 3 (“The concept of spatial hearing embraces the relationships between the locations of auditory events and other parameters—particularly those of sound events, but also others such as those related to the physiology of the brain.”). 141. See id. 142. See id. 143. Skunk Riot Control Copter, supra note 10 (showing that the drones have camera displays and microphones, but not any other technology that allows for an off-site operator to feel, smell, or taste). 144. See AM. ACAD. OF OTOLARYNGOLOGY, Smell and Taste, ENTNET.ORG, http://www.entnet.org/content/smell-taste (last visited Feb. 20, 2016) (discussing the interrelatedness of the senses smell and taste, “Smell and taste belong to our chemical sensing system (chemosensation). The complicated process of smelling and tasting begins when molecules released by the substances around us stimulate special nerve cells in the nose, mouth, or throat. These cells transmit messages to the brain, where specific smells or tastes are identified.”). 145. Graham v. Connor, 490 U.S. 386, 397 (1989). 146. Adrenaline, MERRIAM-WEBSTER ONLINE DICTIONARY (2015), http://www.merriam-webster.com/dictionary/adrenaline (last visited Feb. 20, 2016)

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evolutionary respo onse to the excitement e tthat initiatess the “fight--or147 7 flight” response. Adrenalinee increases the effectivveness of alll of 1 the bod dy’s senses.148 This resp ponse is unllikely to be triggered inn an off-sitee operator. Therefore, T an n on-site opeerator will fu fully experience the situation beccause the on-site opperator’s seenses will be heighteened.149 Fin nally, officerrs also rely on o their “gutt instinct,” w which has been explain ned as a subconscious s s, logical ddeduction bbased on hhard evidencce.150 This instinct i com mes, in part, from the innterpretationn of the offficer’s senso ory informatiion.151 This “sixth sensse” will not aid operato ors in their analysis off the scene if they are not presentt to intake all a of the rellevant inform mation.152 Onnce again, onn-site operattors will fullly experien nce the situattion153 Accoordingly, opeerator presence is often n required to o comport with w the stanndards of reaasonablenesss of the Fou urth Amendm ment and thee fourth pressence factor ffound thereiin. B.

Psychologica Ps l Factors Aff ffecting Deciisions

Theere are a number n of psychologiccal factors at play whhen operating a drone miles m away from f the sceene of an inccident. Somee of these psychologiical factorrs include moral ddisengagemeent, desensiitization, an nd the militaant-officer m mindset resuulting from the militariization of po olice.154 Therre is evidencce that distannce changes the (showing g that adrenalline or the medical m term ““epinephrine” is defined as “A substancce that is releassed in the bod dy of a person who is feelingg a strong emootion (such ass excitement, fear, f or anger)) and that cauuses the heart to beat faster and gives thee person more energy.”). 147. DAVID R. BELL E , MEDICAL L PHYSIOLOGY Y: PRINCIPLE S FOR CLINIICAL MEDICIN NE 113 (4th ed d. 2009) (“The response [of tthe sympathetiic nervous systtem] is activated when an orrganism’s surv vival is in jeopaardy and the annimal may havve to fight or flee. Some co omponents of the response rresult from thee direct effectts of sympath hetic neuron acctivation, altho ough the actionn of epinephrinne secreted byy the adrenal medulla m also co ontributes.”). 148. Id. I 149. Id. I at 114. 150. LAWRENCE SAN NDERS, THE SIX XTH COMMAND DMENT 55 (197 79). 151. See S id. 152. See S id. 153. Adrenaline, A sup pra note 146. 154. War W Comes Home: H The Exxcessive Militaarization of Am merican Policcing, ACLU (June ( 2014), https://www.acl h lu.org/sites/deffault/files/fieldd_document/juss14warcomeeshome-text-reel1.pdf; Bandurra, supra note 19; Smith, suppra note 19.

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way a person experiences a situation and how they react to it.155 Distance makes an actor more likely to use force.156 Psychologically, distance makes killing easier.157 Applying this information to drone use, off-site operators behave differently than on-site operators. Moral disengagement is the departure from certain moral standards that serve as guides for and deterrents of conduct.158 Two theories of moral disengagement have been identified as particularly relevant when considering the off-site operation of drones: the disregard or distortion of the consequences theory and the dehumanization theory.159 The disregard or distortion of the consequences theory states that if results of harmful conduct are ignored, minimized, distorted, or disbelieved then a person’s moral standards will not be activated.160 It suggests that when one is present to see the results of force, the person’s moral standards will encourage him or her to stop because hearing and seeing the other person’s reactions engages a person’s self-restraint.161 The self-restraint of an off-site operator will likely not be engaged because the operator is not physically present to fully experience the situation. Even though the off-site operator can see the results on the screen, the operator is not able to have as great of a sense of the harm that he or she is causing.162 There is also evidence which supports that seeing the violence through the screen rather than in person has other effects on drone operators, which leads to the second pertinent theory of moral disengagement.163 155. Olsthoorn & Royakkers, supra note 19. 156. See id. 157. See id. 158. Bandura, supra note 19, at 195. 159. Stelmack, supra note 79. 160. Bandura, supra note 19, at 195–96 (“The disengagement may center on the reconstrual of the conduct itself so it is not viewed as immoral; the operation of the agency of action so that the perpetrators can minimize their role in causing harm; in the consequences that flow from actions; or on how the victims of maltreatment are regarded by devaluing them as human beings and blaming them for what is being done to them.”). 161. Id. at 195 (“[C]onduct is largely regulated by external dictates and social sanctions. In the course of socialization, people adopt moral standards that serve as guides and as major bases for self-sanctions regarding moral conduct.”). 162. Id. 163. Id. at 201 (“The strength of moral self-censure depends partly on how the perpetrators view the people they mistreat.”).

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The dehumanization theory of moral disengagement posits that when a person views other people as “subhuman objects,” it makes unethical conduct more likely to occur.164 Seeing violent abstract images through the screen can make the operator view the person as subhuman.165 To an off-site drone operator, the target will be more like a video game character than a human being.166 As video game use increases,167 it may be difficult for operators to distinguish the difference between a video game and real life.168 Additionally, the longer the use occurs, the worse the effects will become.169 Dehumanization of a person may encourage desensitization.170 Desensitization is the phenomenon where a person’s brain shows a diminished response to real-life violent images.171 The person will be less sensitive and less affected by violence.172 Therefore, the person 164. Id. (“Self-censure for cruel conduct can be disengaged by stripping people of human qualities. Once dehumanized, they are no longer viewed as persons with feelings, hopes and concerns but as subhuman objects.”). 165. Olsthoorn & Royakkers, supra note 19. 166. Id. 167. See Essential Facts About the Computer and Video Game Industry 2015 Sales, Demographic and Usage Data, ESSENTIAL SOFTWARE ASS’N, http://www.theesa.com/wp-content/uploads/2015/04/ESA-Essential-Facts-2015.pdf (last visited Feb. 20, 2016) (showing that 155 million Americans play video games, and 42% of Americans play video games regularly). 168. See generally Bandura, supra note 19. 169. Id. 170. See generally id. at 204; see also Smith, supra note 19, at 196. 171. Smith, supra note 19, at 196 (citing Helen Phillips, Violent Video Games Alter Brain’s Response to Violence, NEWSCIENTIST (Dec. 12, 2005), http:// www.newscientist.com/article.ns?id=dn8449); see also Bruce D. Bartholow et al., Chronic Violent Video Game Exposure and Desensitization to Violence: Behavioral and Event-Related Brain Potential Data, 42 J. EXP. SOC. PSYCHOL. (2006) (“Desensitization as a long-term effect of exposure to violent video games has been proposed in recent studies that found a link between aggressive behavior and exposure to video game violence. . . . The gamers were . . . shown real-life images of mostly neutral scenes with occasional violent or negative (but nonviolent) scenes while measuring their brain activity in an EEG (electroencephalogram) recording of brain waves. The results indicated that the gamers with the most experience with violent games showed diminished brain responses to the images of real life violence, a sign that they had become desensitized.”). 172. Desensitize, MERRIAM-WEBSTER ONLINE DICTIONARY (2015), http://www.merriam-webster.com/dictionary/desensitize (last visited Feb. 20, 2016) (“[T]o cause (someone or something) to react less to or be less affected by something; to cause (someone or something) to be less sensitive.”).

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is moree likely to engage in higher h levells of force.173 The lackk of emotional responsee to violence may deterr the actor ffrom ceasingg to 174 apply force, f which will likely y result in exxcessive levvels of force. Add ding drones to the arsen nal of law-ennforcement officers cann be comparred to the recent milittarization off certain laaw-enforcem ment agenciees. Law-enfforcement agencies haave begun to use m more technollogically com mplex formss of equipmeent and in soome cases hhave acquireed military-g grade equip pment.175 Miilitarization of police iis a term fo or law-enforrcement agencies using military-graade equipmeent, which critics arguee results in officers o whoo are more liikely to engage 176 in espeecially aggrressive behaavior. Thhese psychoological facttors show th he need for on-site o dron ne operators. The off-sitee operation oof a drone is i often unreeasonable beecause the ooperators aree more likelyy to use excessive leveels of force.. In conclussion, an on--site operatoor’s ability to fully experiencee the situaation coupled with the psycho ological effects on high hly aggressivve off-site ooperators offten make off-site o dron ne operation unreasonab le under thee totality of the circumstances. IV.

DOMESTIIC LAW ENFO ORCEMENT A GENCY SAM MPLE POLICY Y

hile courts will w need to decide d how tto address thhe growing use Wh of dron nes by law w-enforcemen nt agencies,, the fastesst way for the presentt consideratiion to protecct citizens iss for state laaw-enforcem ment agenciees to updatee their respeective policyy manuals. This Comm ment providees a compreehensive, drrone-relatedd, sample poolicy for loocal law-enfforcement agencies a to adopt. a It connsiders surveeillance, usee of force, and a some prractical officcer concernss. Additionallly, this secttion gives an a overview of the policcy and discuusses the impplementationn of drone technology t in nto existing police proceedures. A.

Sample Pollicy

A solution to this Fourtth Amendm ment concerrn is for laawenforceement agenccies to implement policiees requiring or encouragging operato or presence. Law-enforccement agenncies alreadyy have policcies 173. Id. I 174. Id. I 175. See, S e.g., War Comes C Home, supra s note 1544, at 6, 13. 176. Id. I at 19–20 (no oting that the term t “militariz ation” comes ffrom domestic law enforcem ment agencies using u military--grade weaponss and adoptingg militant actionns).

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for other constitutional requirements in their policy manuals.177 This Comment provides a sample drone policy for law-enforcement agencies to use, which is based on existing policy and procedure manuals.178 These policies outline the officer requirements for using drones179 and provide information as to how drone use would be incorporated into existing law-enforcement agency procedures. 1.0

Use of Force / Authorization

Officers are authorized to use reasonable force to accomplish a legitimate police purpose.180 Force is a deliberate and intentional application of effort by a police officer on another person.181 Under Graham v. Connor, officers will only apply force reasonably believed necessary under the circumstances.182 When determining when to apply force, consider the totality of the circumstances including the following: (1) immediate threat of the suspect to the officer/(s) or public; (2) level of resistance offered; and (3) the severity of the crime.183 Force intentionally applied in excess of what is reasonably necessary, or in circumstances where there is no justification for its use, is an excessive application of force.184 All officers involved in a use of force incident shall provide detailed documentation in a report.185 Supervisors shall complete and forward all required supervisory review documents.186

177. See Policy Manual, BOISE POLICE (Sept. 1, 2015), http://police. cityofboise.org/media/8830/BPD%20Policy%20Manual%20%20Sept%202015%2020150901_Redacted.pdf (on file with author) [hereinafter Policy Manual]. 178. See Id. 179. An officer must use the drone and deploy force, rather than a civilian certified drone operator because many other state action and immunity issues arise. See, e.g., 42 U.S.C.A. § 1983 (Westlaw 2012). 180. Policy Manual, supra note 177, at 23. Section 1.0 of the sample policy was taken from a police department’s policy and procedure’s section in its entirety. This section is being used to show how Section 1.1 would fit into existing law enforcement policies and procedures. Id. 181. Id. 182. Id. 183. Id. 184. Id. 185. Id. 186. Id.

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1.1 Drone D Usagee uthorized to o use droness for surveiillance, but the Offficers are au officer must obtaain a warraant in the absence off a recognized exceptiion to the waarrant requirrement.187 A An officer maay only operrate the dro one if the officer o comp pletes drone certificationn. Officers are authoriized to use reasonable force f deployyed by a noon-lethal arm med drone to t accomplissh a legitimaate police purpose usingg the standaards articulaated previou usly in Section 1.0. Iff reasonablee, the operaator should be present at the scen ne of the inncident. Thee “scene of the nt” is within the distaance that alllows the oofficer to fuully inciden experieence the situation. s Officers O maay also suupplement the 188 Graham m factorss by using a line-of-sigght recomm mendation aas a guide. Thee program in nstalled eitheer in the opeerator’s in-veehicle laptopp or smartph hone applicaation shall bee updated reegularly. Thee drone shalll be properlly outfitted with standaard police m markings at all times. T The drone shall s be insp pected and ceertified at thhe beginningg of every shhift. Inspecttions shall be b recorded in i the traininng records. Operators shhall submit a detailed flight log of o all dronee activity, inncluding fliight notes, surveillance s footnotes, and a a use-off-force repoort if necessaary. All offficers involv ved in a dro one use-of-foorce incidennt shall provvide detailed d documentation in a report. Superrvisors shalll complete aand forward d all required d supervisorry review doocuments. B. B

Samp ple Policy Diiscussion

Thee policy briiefly addressses the feaasibility of drone operaator presencce. Officers would operaate the dron es via a com mputer progrram installeed on their vehicle’s laptop or sm martphone.1889 Drone unnits would easily be incorporated d into the existing laaw-enforcem ment agency y structure of o using sp pecialized unnits190 whicch include K K-9 19 91 192 193 units, bomb squaads, and several s otherrs. Select officers woould 187. Kentucky K v. Kiing, 131 S. Ct. 1849, 1852 ((2011) (“The pproper test folllows from thee principle th hat permits waarrantless searrches: warranttless searches are allowed when the circcumstances maake it reasonaable, within thhe meaning off the Fourth Amendment, A to o dispense with h the warrant reequirement.”). 188. Graham G v. Con nnor, 490 U.S. 386, 396 (19899). 189. Dean, D supra no ote 70; Parrot AR A Drone 2.0, supra note 72.. 190. Specialty S Unitss, BOISE POLICEE, http://policee.cityofboise.orrg/home/speciaaltyunits/ (laast visited Feb. 20, 2016). 191. K-9 K Unit, BOISE POLICE, http://policee.cityofboise.orrg/home/speciaaltyunits/k-9 9-unit/ (last vissited Feb. 20, 2016). 2

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be trained in drone use and carry a drone unit in the officer’s patrol car. When the need for a drone operator arises, such as a dangerous suspect or crowd control issue, officers would call and request such a unit.194 This is consistent with current law-enforcement agency policies. The maintenance would be performed on a schedule similar to all other officer equipment, and there would also be regular reporting requirements.195 Addressing the earlier show of authority considerations, the drones would be marked with law enforcement agency markings and used when the operator is present.196 Additionally, the presence of a second officer is encouraged in the policy for safety reasons.197 Finally, the policy addresses Fourth Amendment 198 considerations. It addresses the fourth presence factor in the use of drones by law-enforcement agencies.199 Off-site operation is often unreasonable because operators are not able to fully experience all facts and because valuable sensory information will be absent. Use of force by drones outside of operator presence is also often unreasonable because officers behave differently over long distances.200 For a number of psychological reasons, people are more 192. Bomb Squad, BOISE POLICE, http://police.cityofboise.org/home/specialtyunits/bomb-squad/ (last visited Feb. 20, 2016). 193. Specialty Units, supra note 190. 194. K-9, ADASHERRIF.ORG, https://adasheriff.org/Patrol/K9 (last visited Feb. 20, 2016) (showing that specialized units are requested depending upon the needs of a particular situation). 195. See Policy Manual, supra note 177. 196. As discussed earlier, the drone alone does not satisfy the show of force requirements from Mendenhall. United States v. Mendenhall, 446 U.S. 544, 554 (1980). However, a properly marked drone in addition to an officer does satisfy the test. 197. The back-up officer is recommended for safety reasons—to comply with other law enforcement recommendations. This recommendation is not in regards to the reasonableness analysis. 198. Exceptions to the warrant requirement, such as the exigent circumstances exception found in Kentucky v. King, 131 S. Ct. 1849 (2011), are beyond the scope of this Comment. These exceptions apply generally to all Fourth Amendment issues, which would include drones. See id. 199. See Policy Manual, supra note 177 (finding that the use of force by drones outside the presence of the operator is unreasonable per the principles underlying the Fourth Amendment). 200. Olsthoorn & Royakkers, supra note 19; Sample K-9 Unit Policy, supra note 77.

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likely to deploy force in the peace of an isolated control room than in a tense, uncertain, and rapidly evolving situation.201 As it is likely that an off-site operator will deploy more force, it is recommended that the operator be present at the scene of the incident. The “scene of the incident” is within a distance that is reasonable under the Graham factors.202 The factors in Graham are not meant to be an exhaustive list of elements but factors to be considered under the totality of the circumstances.203 Another potential informal guide could be line-of-sight restrictions, which mirror those in the civilian FAA regulations.204 Under line-of-sight restrictions, the officer would be able to use the drone so long as it was within the officer’s sight. The proposed policy addresses all of the considerations necessary to comply with the reasonableness standard of the Fourth Amendment, which is described as the fourth reasonableness factor. In situations where an off-site operation is reasonable, or necessary, it will be allowed under this policy. CONCLUSION When analyzing use of force by drones, a fourth factor in the Fourth Amendment standard of reasonableness must be recognized. Off-site operators are not able to fully experience the situation, so operators should often be present for the use of force to be reasonable.205 Off-site operators will not be able to take advantage of all sensory information available to an on-site operator. Additionally, off-site operators will experience a number of psychological effects such as moral disengagement, desensitization, and the effect of militarization.206 Off-site actors behave differently than on-site operators and are more likely to use force.207 Due to these considerations, operator presence must be considered under the totality of the circumstances.208 Therefore, the complete analysis 201. Olsthoorn & Royakkers, supra note 19; Sample K-9 Unit Policy, supra note 77. 202. Graham v. Connor, 490 U.S. 386, 396 (1989). 203. Id. at 396. 204. FAA Operations, supra note 94. 205. See U.S. CONST. amend. IV. 206. See generally Bandura, supra note 19 (discussing different ways a person may justify or normalize violent behaviors); Smith, supra note 19 (discussing the use of violent video games as a cause of increased aggression). 207. Olsthoorn & Royakkers, supra note 19. 208. See Graham v. Connor, 490 U.S. 386, 396 (1989).

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would consider the totality of the circumstances and pay special attention to (1) the severity of the crime, (2) whether the suspect poses an immediate threat to the safety of the officers or others, (3) whether the suspect is actively resisting arrest or attempting to evade arrest, and (4) whether the officer was present on the scene.209 As technology continues to progress, the fourth presence factor for drone operators must be clarified for use of force to maintain consistency with the Fourth Amendment.210 As drone technology develops, the Fourth Amendment’s protections must also evolve to safeguard individual liberty.211

209. Id. 210. Ravich, supra note 100, at 597 (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996)) (“The ongoing development and use of unmanned aerial vehicles (UAVs) illustrates well the observation that ‘[l]aw lags science; it does not lead it.’”). 211. U.S. CONST. amend. IV.

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW SPECIAL PATRONS Mike Korn

David C. Whipple LAW FIRM BENEFACTORS Bailey, Smith & Bailey, P.C. The Honorable Avern Cohn Krause, Moorehead & Draisen, P.A.

2016 DISTINGUISHED BRIEF REVIEW PANEL Honorable Justice Brian K. Zahra Honorable Justice Bridget Mary McCormack Honorable Rosemarie E. Aquilina Honorable Patricia D. Gardner Honorable Kirsten Frank Kelly Honorable Kathleen Jansen Honorable Patrick M. Meter Honorable Christopher M. Murray Honorable Michael J. Riordan Honorable Paul J. Denenfeld