South Texas Law Review Vol.59 No.4

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ARTICLES

NUISANCE CASES AGAINST ENERGY COMPANIES IN TEXAS,PENNSYLVANIA, AND OTHER AREAS WITH SIGNIFICANT OR DEVELOPING OIL AND GAS EXPLORATION................................................... Stephen C. Dillard, Lauren Hunt, Michael J. Mazzone, & Mike D. Stewart 447

DECISIONAL TRAPS IN FOURTH AMENDMENT PRIVACY CASES

COMMENTS

REVERSING THE ODDS: CREATING UNIFORMITY WITH RULE 404(B)

DURESS AND THE MATERIAL SUPPORT BAR IN ASYLUM LAW: FINDING EQUITY IN THE FACE OF HARSH RESULTS.....................John Flud 537

TEXAS’S LAW OF PARTIES: EXHAUSTING ALL PRECAUTIONS TO ENSURE THE FAIRNESS OF AN ACCOMPLICE’S CONVICTION AND PUNISHMENT Dylan W. Morgan 571

† Stephen C. Dillard and Lauren Hunt Brogdon are attorneys with Norton Rose Fulbright US LLP in Houston, Texas. Michael J. Mazzone and Mike D. Stewart are attorneys with Haynes and Boone, LLP in Houston, Texas. The authors have published this article in other forms with different journals and online sources, including the Texas Business Journal (Stephen C. Dillard et. al, Nuisance Cases Against Energy Companies in Texas, Pennsylvania, and Other Areas with Significant or Developing Oil and Gas Exploration, 47 TEX J. BUS L. (Spring 2018), https://www.texasbusinesslaw.org/resources/texas-business-law-journal/volume-47-issue-no-2spring-2018/nuisance-cases-against-energy-companies-in-texas-pennsylvania-and-other-areaswith-significant-or-developing-oil-and-gas-exploration [https://perma.cc/P8FV-JT9S]) and on each of the author’s firms’ websites (Michael J. Mazzone et. al, Nuisance Cases Against Energy Companies, HAYNES AND BOONE (Oct. 13, 2016), http://www.haynesboone.com//media/files/attorney-publications/nuisance-cases-against-energy-companies-mazzone-stewartdillard-brodgen.ashx?la=en&hash=C0BECA76672328C4B00D5BDD9BC725D34C7F012E [https://perma.cc/B7CZ-MVYS]; Stephen C. Dillard and Lauren Hunt Brogdon, Nuisance cases against energy companies in Texas, Pennsylvania, and other areas with significant or developing oil and gas exploration, NORTON ROSE FULBRIGHT (May 2017), http://www.nortonrosefulbright.com/files/20161031-nuisance-cases-against-energy-companies-intexas-pennsylvania-and-other-areas-with-significant-or-developing-oil-and-gas-exploration143918.pdf [https://perma.cc/FJ4J-W2Z7]).

I. INTRODUCTION

For over a century, courts and commentators have openly expressed their frustration with the amorphous doctrine of nuisance. It has been ridiculed as a “‘wilderness’ of law,”1 an “impenetrable jungle,”2 and a “mongrel” doctrine.3 Professor Seavey, reporter for the First Restatement of Torts, noted that nuisance doctrine sometimes appeared to be a “mystery, smothered in verbiage.”4 Dean Prosser, reporter for the Second Restatement of Torts, candidly called it “a sort of legal garbage can.”5 Half a century later, Justice Blackmun searched “in vain for anything resembling a principle in the common law of nuisance.”6

In Texas, Pennsylvania, and other jurisdictions with significant oil and gas development, things have fared no better. At the turn of the twentieth century, the Texas Supreme Court concluded that nuisance must turn on whether a defendant’s use is “reasonable,” but it could not “furnish a more definite rule.”7 In the 1970s, the court frankly stated that “[t]here is a general agreement that [nuisance] is incapable of any exact or comprehensive definition, and we shall attempt none here.”8 In the early 2000s, the court noted that numerous Texas nuisance cases were completely irreconcilable because they were decided without a standard of reference.9 Likewise in Pennsylvania, the amalgam of conduct that juries have determined fall under nuisance law illustrate its breadth (or overbreadth) as a cause of action.10

1. 1 H.G. WOOD,APRACTICAL TREATISE ON THE LAW OF NUISANCES IN THEIR VARIOUS FORMS: INCLUDING REMEDIES THEREFOR AT LAW AND IN EQUITY iii (3d ed. 1893).

2 WILLIAM L. PROSSER, THE LAW OF TORTS 592 (3d ed. 1964).

3 F.H. Newark, The Boundaries of Nuisance, 65 LAW Q. REV 480, 480 (1949).

4 Warren A. Seavey, Nuisance: Contributory Negligence and Other Mysteries, 65 HARV L. REV. 984, 984 (1952) (quoting Delaney v. Philhern Realty Holding Corp., 21 N.E.2d 507, 510 (N.Y. 1939) (Crane, J. concurring)); see Louise A. Halper, Untangling the Nuisance Knot, 26 B.C. ENVTL AFF L. REV 89, 90 (1998) (summarizing Seavey’s critiques).

5. William L. Prosser, Nuisance Without Fault, 20 TEX. L. REV. 399, 410 (1942) [hereinafter Nuisance Without Fault]; see Halper, supra note 4, at 90 (summarizing Prosser’s critiques).

6 Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1055 (1992) (Blackmun, J., dissenting).

7 Gulf, Colo. & Santa Fe Ry. Co. v. Oakes, 58 S.W. 999, 1001 (Tex. 1900).

8 Wales Trucking Co. v. Stallcup, 474 S.W.2d 184, 186 (Tex. 1971).

9 See Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274–75 (Tex. 2004).

10 See, e.g.,Township of Bedminster v. Vargo Dragway, Inc., 253 A.2d 659, 663 (Pa. 1969) (holding that the excessive noise from a racetrack in a residential area constitutes a nuisance); Harford Penn-Cann Serv., Inc. v. Zymblosky, 549 A.2d208, 209 (Pa. Super. Ct. 1988) (holding that dust from truck stop was sufficient to constitute private nuisance where health problems to employees resulted); FairviewTwp.vSchaefer,562A.2d989,993(Pa.Commw. Ct. 1989)(holding

2018] NUISANCE CASES AGAINST ENERGY COMPANIES 449

Energy companies increasingly have been the target of nuisance suits alleging that drilling operations were a nuisance to nearby residents.11 But

that it was a nuisance to keep a tiger in a residential area even though the owner had an exotic wildlife permit).

11

Some cases are still pending in the trial court. See e.g., Murray v. EOG Res., Inc., No. 342-284983-16 (342d Dist. Ct., Tarrant County, Tex. filed Apr. 19, 2016). Others are pending in various stages of appeal.

A great many others have been dismissed, often pursuant to a settlement agreement. See, e.g., Ely v. Cabot Oil & Gas Corp , No. 3:09-02284-JEJ-MCC (M.D. Pa. dismissed Sep. 21, 2017); Roth v. Cabot Oil & Gas Corp., No. 3:12-cv-00898-JEJ-MCC (M.D. Pa. dismissed Dec. 12, 2013) (dismissed with prejudice) (claims for inconvenience and discomfort dismissed on Jan. 30, 2013); Andre v. EXCO Res., Inc , No. 5:11-cv-00610-TS-MLH (W.D. La. dismissed Nov. 12, 2013) (class action settlement); Scoggin v. Sw. Energy Co., No. 4:12-cv-00763 (E.D. Ark. dismissed May 29, 2013) (dismissed without prejudice); Smith v. Sw. Energy Co., No. 4:12-cv-00423 (E.D. Ark. dismissed May 14, 2013) (dismissed for lack of subject matter jurisdiction); Pruitt v. Sw. Energy Co., No. 4:12-cv-00690 (E.D. Ark. dismissed May 14, 2013) (dismissed for lack of subject matter jurisdiction); Tucker v. Sw. Energy Co , No. 1:11-cv-00044-DPM, (E.D. Ark. dismissed Aug. 29, 2012) (settled and dismissed with prejudice); Ginardi v. Frontier Gas Servs., LLC, No. 4:11-cv0420-BRW (E.D. Ark. Dismissed Jul. 11, 2012) (dismissed pursuant to settlement following denial of class certification); Smith v. Devon Energy Prod. Co., L.P., No. 4:11-cv-00104-RAS-DDB (E.D. Tex. dismissed July 1, 2012); Whiteman v. Chesapeake Appalachia, L.L.C., No. 5:11-cv-00031FPS (N.D. W. Va. dismissed Jun. 11, 2012), aff’d, 729 F.3d 381 (4th Cir. 2013) (stipulation to dismissal of claims includingnuisance); Harris v.DevonEnergyProd., L.P., 4:10-CV-00708-MHSAM(E.D.Tex. dismissedJan.25,2012), appeal dism’d, 500 F. App’x267 (5thCir.2012); Mitchell v. Encana Oil & Gas (USA), Inc., No. 3:10-CV-02555 (N.D. Tex. dismissed Dec. 27, 2011); Scoma v. Chesapeake Energy Corp , No. 3:10-cv-01385-N (N.D. Tex. dismissed Dec. 9, 2011) (dismissed with prejudice); Scoggin v. Cudd Pumping Servs., Inc , No. 4:11-cv-00678-JMM (E.D. Ark. filed Sept. 12, 2011) (stipulation of voluntary dismissal without prejudice filed on June 10, 2013); Beck v. ConocoPhillips Co., No. 2011-484 (123d Dist. Ct,. Panola Cty. dismissed Tex. May 27, 2015) (dismissed with prejudice); Finn v. EOG Res., Inc., No. C201300343 (18th Dist. Ct., Johnson Cty., Tex. dismissed April 13, 2015) (dismissed with prejudice); Heinkel-Wolfe v. Williams Prod. Co., LLC, No. 2010-40355-362 (362d Jud. Dist. Ct., Denton Cty., Tex. dismissed Dec. 3, 2014) (dismissed with prejudice); Alexander v. Eagleridge Operating, LLC, No. 14-01430-393 (393d Jud. Dist. Ct., Denton Cty., Tex. filed Feb. 28, 2014) (nonsuited without prejudice); Sizelove v. Williams Prod. Co., No. 2010-50355-367 (431st Jud. Dist. Ct., Denton Cty., Tex. dismissed Jan. 8, 2013) (dismissed with prejudice); Knoll v. XTO Energy, Inc., No. 2010-10345-16 (431st Jud. Dist. Ct., Denton Cty., Tex. dismissed May 16, 2012) (dismissed with prejudice); Ruggiero v. Aruba Petroleum, Inc., No. CV10-10-801 (271st Jud. Dist. Ct., Wise Cty., Tex. dismissed Dec. 13, 2011); Strong v. ConocoPhillips Co., No. 2011-487 (123d Dist. Ct.,Panola Cty., Tex. Dec. 2, 2011); Mann v. Chesapeake Operating, Inc , No. 2011-008232-3 (Co. Ct. at Law No. 3, Tarrant Cty., Tex. dismissed Dec. 10, 2014) (dismissed with prejudice); Gutierrez v. Chesapeake Operating, Inc., No. 2011-008274-3 (Co. Ct. at Law No. 3, Tarrant Cty., Tex. dismissed Dec. 10, 2014) (dismissed with prejudice).

A few have reached final judgment. Some cases are still pending in the trial court. See, e.g., Dueling v. Devon Energy Corp., No. 4:14-cv-325-Y (N.D. Tex. filed Oct. 2, 2014), vacated and remanded, 623 F. App’x 127 (5th Cir. 2015) (final judgment Nov. 30, 2016); Town of Dish v. Atmos Energy Corp., 519 S.W.3d 605 (Tex. 2017); Crosstex. N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580 (Tex. 2016); Lipsky v. Range Prod. Co., No. 02-12-00098-CV, 2012 Tex. App. LEXIS 7059 (Tex. App. Fort Worth Aug. 23, 2012, pet. denied) (final judgment Nov. 27, 2017); Cerny v. Marathon Oil Corp., No. 13-05-00118-CVK (218th Jud. Dist. Ct., Karnes Cty., Tex. filed May 21, 2013), aff’d, 480 S.W.3d 612 (Tex. App. San Antonio Oct. 7, 2015, pet. denied) (summary judgment in favor of defendants affirmed on appeal); Anglim v. Chesapeake Operating, Inc , No. 2011-008256-

saying something is a nuisance case, as the Texas Supreme Court recently noted, “does not tell you much.”12 A variety of things have generated nuisance allegations against energy companies, such as bright lights on drilling rigs, vibrations from drilling, odor from condensate tanks, exhaust fumes from trucks, dust from construction, and noise from compressor stations.13 Some cases allege personal injury; others allege only property damage. Some claim intentional behavior; some claim negligent behavior; others only claim that the condition was out-of-place with its surroundings. Given the muddled state of nuisancelaw, this Article first outlines the history of nuisance law to give context to the present confusion. With that historical context in mind, it then discusses modern private nuisance in Texas and Pennsylvania, with reference to other jurisdictions having significant oil and gas development, what it is, what it is not, and a host of issues surrounding recent nuisance cases.

II. HISTORY

Nuisance law is ancient. Its roots go back to at least the early thirteenth century.14 So too does the confusion surrounding the term.15 The term

1 (Co. Ct.at Law No. 1,Tarrant Cty., Tex. filed Nov. 9, 2011), vacated, No. 02-14-00218-CV, 2014 Tex. App. LEXIS 12985 (Tex. App. Fort Worth Dec. 4, 2014, no pet.) (defense verdict, vacated pursuant to settlement agreement after appeal); Crowder v. Chesapeake Operating, Inc., No. 2011008169-3 (Co. Ct. at Law No. 3, Tarrant Cty., Tex. filed Nov. 7, 2011), vacated, No. 02-14-00323CV, 2014 Tex. App. LEXIS 13003 (Tex. App. Fort Worth Dec. 4, 2014, no pet.) ($20,000 award, vacated pursuant to settlement agreement after appeal); Marsden, Jr. v. Titan Operating, LLC, No. CV11-0842 (415th Jud. Dist. Ct., Parker Cty., Tex. filed July 27, 2011), rev’d, No. 02-14-00303CV, 2015 Tex. App. LEXIS 9076 (Tex. App. Fort Worth Aug. 27, 2015, pet. denied) ($18,000 judgment; reversed and take-nothing judgment rendered on appeal); Parr v. Aruba Petroleum, Inc , No. CC-11-01650-E (Co. Ct. at Law No. 5, Dallas Cty., Tex. filed Mar. 8, 2011), rev’d, No. 05-1401285-CV, 2017 Tex. App. LEXIS 873 (Tex. App. Dallas Feb. 1, 2017, no pet.) ($2.9 million judgment; reversed and take-nothing judgment rendered on appeal). [Disclosure: Mr. Mazzone and Mr. Stewart are counsel for Aruba Petroleum in the Parr case, Mr. Mazzone was counsel for Aruba in the Ruggiero case, and Haynes & Boone is counsel for Enbridge in the case consolidated from the Dow, Town of DISH, and Sciscoe cases. Mr. Dillard and Ms. Brogdon are counsel for EOG Resources in the Murray case and for Cabot Oil & Gas in the Ely case. Ms. Brogdon was also counsel for EOG Resources in the Finn case and for Cabot Oil & Gas in the Roth case.]

12 Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 587 (Tex. 2016)

13 See cases cited supra note 11.

14 C.H.S. FIFOOT, HISTORY & SOURCES OF THE COMMON LAW: TORT AND CONTRACT 7 (1949) (tracing the roots of nuisance doctrine and noting that by “the early years of the thirteenth century cases of nuisance were not uncommon; but there had been no attempt at generalisation”); 1

FOWLER V HARPER ET AL., HARPER, JAMES AND GRAY ON TORTS § 1.23 (3d ed. 2006) (“The recognition of nuisance as a tort goes back at least to the thirteenth century . . . .”).

15 See P.H. Winfield, Nuisance as a Tort, 4 CAMB L.J. 189, 189 (1931) (noting that Professor Winfieldbegan his history of nuisance as a tortbystating that“[i]t would clear the ground if we could start with a definition of nuisance, but it has been truly said that it is not a term capable

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“nuisance”meansonly“hurt,inconvenience,ordamage.”16 Initsinfancy,the law described nuisances as “interferences with servitudes” (such as easements) “or other rights to the free use of land.”17 Early nuisance cases were brought under the old writsystemand provided civil relief for invasions not covered by a writ of trespass (i.e., invasions of property that did not directly cross the property’s boundary).18

Nuisance therefore originally connoted a connection to property, but from the outset, it was unclear if nuisance dealt with propertyrights, personal rights, or both.19 This vagueness plagued early definitions in much the same way as it plagues modern ones.20 To the extent nuisance had any discrete historical meaning, it denoted an infringement of the use and enjoyment of property, much like private nuisance today.21

The term, however, became even more unbound through “a series of historical accidents.”22 The first of these is the parallel development of a “catch-all criminal offense” also called “nuisance,” now generally referred to as public nuisance, to distinguish it from private nuisance.23 By the midthirteenth century, this broad offense included “obstructed highways, lotteries, unlicensed stage-plays . . . and a host of other rag ends of the law” which involved infringements of “public rights.”24 Put simply, the offense of

of exact definition, and, considering its historical origin, we should be astonished if it were.”) (internal citation omitted).

16 See 3 WILLIAM BLACKSTONE,COMMENTARIES ON THE LAWS OF ENGLAND 216 (1796).

17 W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 86 (5th ed. 1984); see e.g., FIFOOT, supra note 14, at 3–11.

18 FIFOOT, supra note 14, at 9–10; KEETON ET AL., supra note 17, § 86.

19 Winfield, supra note 15,at189–90 (noting this confusion likelybegan with the thirteenth century writings of Henry de Bracton); see also FIFOOT, supra note 14, at 3 (stating that nuisance was “concerned more or less intimately with the incidents of property,” but cautioning that a “student of legal history . . . [should] take constant care not to apply to mediaeval conditions the current categories of tort, contract and property”).

20 Winfield, supra note 15, at 190 (“The best that Blackstone could do with it was ‘anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another,’ but even then he had more to say in another chapter entitled ‘Of Disturbance’ about matters, some of which are now regarded as nuisances.” (internal citations omitted)). More modern definitions have also attempted to straddle the line between property rights and personal rights. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 593 (Tex. 2016) (“[T]he Court’s early opinions” showed that a defendant “could be liable for harming a wide variety of the plaintiffs’ interests by, for example, harming the plaintiffs’ health, offending the plaintiffs’ ‘senses,’ or interfering with the plaintiffs’ enjoyment of, or operation of a business on, their land” (internal citations omitted));

THOMAS COOLEY, A TREATISE ON THE LAW OF TORTS OR THE WRONGS WHICH ARISE

INDEPENDENT OF CONTRACT 565 (1880) (relegating nuisance to a late chapter for a discussion separatefromwrongs affectingpersonal securityor invasions of property); cf. Milwaukeev.Illinois, 451 U.S. 304, 317 (1981) (noting the “vague and indeterminate” nature of nuisance concepts).

21. Winfield, supra note 15, at 189–90.

22 KEETON ET AL , supra note 17, § 86.

23 Id.

24 Id. (quoting Newark, supra note 3, at 482).

public nuisance had nothing in common with private nuisance, except that both concern “annoyance or inconvenience.”25

This vagueness might have been little more than a historical oddity if public nuisance remained strictly a criminal offense with no civil remedy. But that did not happen. By the sixteenth century, courts had recognized that an individual who suffered damage different than the rest of the public had a civil remedy for damages caused by the nuisance.26 Adding to the confusion, public nuisances can also sometimes be both public and private nuisances.27 The classic example is a brothel that is a public nuisance that may also interfere with the use and enjoyment of a neighbor’s land in such a way as to also constitute a private nuisance.28

A second historical accident isthat theterm“nuisance”began tobe used to refer to different legal concepts. Among other things, courts used nuisance tomean:(1)adiscretecauseofaction;(2)thedefendant’sconductoractivity; and (3) the harm caused by the defendant’s conduct or activity.29 This loose usage partially may have stemmed from the loose definition itself.30

But changes in the English legal system also may have played a part in the varied usage of the term “nuisance.” In its earliest form, a plaintiff could only bring a nuisance action through one of the specialized common law writs.31 By the late fourteenth century, however, English law had recognized an action for “trespass on the case” which covered a variety of indirect harms.32 Forreasons mainlyof convenience and strategy, trespass on the case entirely superseded the old writs that lawyers had used to bring nuisance cases.33 Trespass on the case, however, was a sort of catch-all action. It covered a variety of “indirect” legal harms such as fraud and defamation, not

25 Nuisance Without Fault, supra note 5, at 411.

26

See KEETON ET AL., supra note 17, § 86; see also BLACKSTONE, supra note 16, at 220 (“Yet this rule [of criminal liability] admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king’s subjects, by a public nuisance: in which case he shall have a private satisfaction by action.”).

27 See KEETON ET AL., supra note 17, § 86.

28 See RESTATEMENT (SECOND) OF TORTS § 821B cmt. h (AM LAW INST 1979).

29. See id.; see also Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 594 (Tex. 2016).

30 See Winfield, supra note 15, at 189–90; see also Nuisance Without Fault, supra note 5, at 410 (noting that nuisance has also been used in conjunction with the attractive-nuisance doctrine whichdeals withdangerous conditions thatmaylurechildrentotrespassandthatattractive-nuisance is a concept entirely separate from private nuisance and public nuisance).

31 Winfield, supra note 15, at 190–91 (discussing the assize of nuisance, the action quod permittat prosternere, and the writ of trespass); see, e.g., BLACKSTONE, supra note 16, at 220

32. See Winfield, supra note 15, at 191–92.

22.

33 Winfield, supra note 15, at 191–92 (discussing the various factors which led to trespass on the case becoming the “sole Common Law action” for nuisance); see also KEETON ET AL., supra note 17, § 86.

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just nuisance.34 As a result of this shift away from the specialized nuisance writs, nuisance may have lost some of its character as a discrete form of action.35

Much later, history provided the third twist. From the thirteenth century to the mid-nineteenth century, the common law forms of action such as trespass on the case and the various writs of trespass determined the necessary elements of a case and the defenses and remedies available.36 For a plaintiff, “choosing the wrong form of action was fatal to the case,” and the plaintiff’s case would be dismissed “even if facts were shown that would entitle recovery in another form.”37 Facing criticism that such formalism was unjust, jurisdictions across the country largely abandoned the common law forms of action and the writ system in the latter half of the nineteenth century.38

The initial shift away from the writ system was largely procedural, however. Under the new, more liberal pleading rules, a plaintiff was not required to specify the form of action, but the plaintiff still had to plead facts that constituted a cause of action that was recognized under the old system.39 In other words, the rules of substantive law did not change, “[i]n determining what facts were necessary to state a cause of action, courts referred back to the common law writs.”40

34 See EDWIN E. BRYANT, THE LAW OF PLEADING UNDER THE CODES OF CIVIL PROCEDURE 7 (1894); 1 AM JUR 2D Actions § 18 (1994).

35 This kind of usage problem arises in other areas of the law as well, so this ambiguity may not be a particular historical quirk of nuisance. See, e.g., Robert L. Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 GA L.REV 925,932 (1981) (discussing ambiguity with regards to negligence).

36 See Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19 HOFSTRA L. REV 447, 454 (1990).

37 Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 10, 11 n.27 (Tex. 2008) (quoting HARPER ET AL , supra note 14, § 1.3).

38. Id. at 11 n.27 (quoting HARPER ET AL., supra note 14,§ 1.3); see Vandevelde, supra note 36, at 454–55. A few writs, such as the writ of certiorari, the writ of habeas corpus, and the writ of attachment, survived the transition with their names intact. For its part, Texas never recognized the common law forms of action. Banton v. Wilson, 4 Tex. 400, 406 (1849) (“All forms of action have been abolished in our system of jurisprudence, or rather they were never introduced.”); see Chevalier v. Rusk, Dallam 611, 613 (Tex. 1844) (“Under our statutes, intended to simplify the rules of pleading, no distinctions as to forms of action are recognized”).

39 See Vandevelde, supra note 36, at 455; see also Coastal Oil & Gas Corp., 268 S.W.3d at 10 (“[U]nder our liberal pleading rules, unlike the common law, [plaintiff] was not required to specify which form [of action applied].”).

40 Vandevelde, supra note 36, at 455; see id. at 455 n.58 (“[T]he abolition of the commonlaw forms of pleading has not changed the rules of substantive law” (quoting O.W. HOLMES, THE COMMON LAW 67 (M. Howe ed. 1963))); see also Coastal Oil & Gas Corp., 268 S.W.3d at 9–10 (rejecting argument that plaintiff lacked standing to sue for trespass because plaintiff had sufficiently pled an action for “trespass on the case”).

The abolition of the common law forms of action, however, opened the door for courts and scholars to reimagine tort doctrine and to reorganize it around fault-based principles.41 Parallel to the shift away from the writ system, negligence in the modern sense a failure to exercise reasonable care also entered the scene.42 Although there is some disagreement among scholars, the majority view is that most torts, including nuisance, largely did not operate on fault-based principles prior to the advent of negligence.43

The shift to fault-based liability and its effect on nuisance (and other torts) is perhaps best exemplified by the treatises of the day. Early American torts treatises were generally organized around the age-old principle that “where there is a legal right, there is also a legal remedy.”44 For example, one 1880 torts treatise included chapters such as “Wrongs Affecting Personal Security,” “Invasions of Rights in Real Property,” and “Wrongs in Respect to Personal Property,” and discussed the various causes of action (assault, false imprisonment, trespass, trespass to chattels, and so on), that remedied the invasions of those rights under those headings.45 Consistent with the idea that torts did not operate based on fault, the treatise concluded that “the good or bad motive which influenced the action complained of is generally of no importance whatever.”46

By the late 1880s, however, torts treatises began to take a different shape. Influenced by the writings of Oliver Wendell Holmes and other legal theorists, scholars began to organize their treatises around the notion that tort

41 HARPER ET AL , supra note 14, § 1.24 (arguing the “procrustean insistence on fault” in nuisance doctrine is misguided and “quite in keeping with the late-nineteenth-and early twentiethcentury urge to reduce all tort liability to terms of fault”).

42 See Vandevelde, supra note 36, at 470 (“The conventional wisdom is that the emergence of modern negligence began with the 1850 decision in Brown v. Kendall by Chief Justice Lemuel Shaw of Massachusetts.” (internal footnote omitted)).

43 See Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD 29, 29–30 (1972) (“There is an orthodox view of the negligence concept to which I believe most legal scholars and historians would subscribe that runs as follows: Until the nineteenth century a man was liable for harm caused by his accidents whether or not he was at fault; he acted at his peril . . . [but] whether the period before the advent of the negligence standard is properly characterized as one of liability without fault remains, so far as I am aware, an unresolved historical puzzle.”); Vandevelde, supra note 36, at 450 (“Until Holmes conceptualized American tort law, all of the classic intentional torts rested on strict liability.”); see also HARPER ET AL., supra note 14, § 1.24.

44 See Marbury v. Madison, 5 U.S. 137, 163 (1803) (“[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded”); see also BLACKSTONE, supra note 16, at 116 (“[Since] all wrong may be considered as merely a privation of right, the one natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived.”); Vandevelde, supra note 36, at455–57 (arguing that some earlyAmerican tort treatises could hardlybe called organized at all).

45 COOLEY, supra note 20, at vii–xi. This approach mirrored William Blackstone’s organization in his Commentaries on the Laws of England, published in 1765.

46 COOLEY, supra note 20, at 638.

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liabilityfell intothreeclasses: intentional torts, negligence, and strict liability torts.47 This fault-based liability system did not jettison the rights-andremedies model, however; it supplemented it.48 So, for example, an 1887 treatise still addressed rights-and-remedies such as “personal wrongs,” “wrongs to person, estate, and property generally,” and “wrongs to property.”49 But grafted on top of the rights-and-remedies model was a requirement of fault. “Personal wrongs,” such as assault, battery, and false imprisonment, were only actionable if they were intentional; “wrongs to person, estate, and property generally” were only actionable if the actor was negligent; and“wrongs toproperty,” suchastrespasstoland or chattels, were strict liability torts.50 For the first time treatises spoke of fault as a requirement, unless a tort was a strict liability tort, fault was now an explicit element. This is the basic model that survives to the present day.51

Troublesome as always, nuisance did not fit cleanly into the new faultbased approach. One early treatise lumped nuisance in with negligence.52 Another placed nuisance under strict-liability torts.53 By the time the First Restatement of Torts was published in 1939, the prevailing view was that, unlike other torts, nuisance could be an intentional, negligent, or strict

47 See FREDERICK POLLOCK, THE LAW OF TORTS 6 (The Blackstone Pub. Co. 1887). This shift is readily apparent in Melville Bigelow’s torts treatise. See MELVILLE BIGELOW, ELEMENTS OF THE LAW OF TORTS: FOR THE USE OF STUDENTS v–vi (5th ed., 1894) (discussing the organizational changes from the 1878 edition to address fault-based liability).

48 Holmes took the reorganization a step further, but his views were not universally accepted. In an 1873 article, Holmes proposed the three classes of tort liability. Vandevelde, supra note 36, at 457–58. By 1894, Holmes proposed jettisoning the distinction between intentional torts altogether. Id. at 475. Under this approach, the modern intentional torts assault, battery, false imprisonment, and so on would no longer be considered discrete causes of action and would be reorganized under a general theory of intentional tort that paralleled the general theory of negligence. Id. Modern courts and scholars refer to this idea as “prima facie tort.” See RESTATEMENT (SECOND) OF TORTS § 870 & cmt. a (AM LAW INST. 1979). While the Restatement and some courts have adopted “soft” versions of prima facie tort, Texas has rejected this theory of liability entirely. A.G. Servs., Inc. v. Peat, Marwick, Mitchell & Co., 757 S.W.2d 503, 507 (Tex. App. Houston [1st Dist.] 1988, writ denied) (“[T]he adoption of such a cause of action [for prima facie tort is] a matter of public policy and is within the province of the Legislature, not the courts”); see also Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 717 (Tex. 2001) (noting that misassociation and confusion surrounding tortious interference torts “may have been due to, and were certainly exacerbated by, the concept of a prima facie tort that was being advanced [in the late nineteenth and early twentieth century]”).

49 POLLOCK, supra note 47, at 5–6.

50 See id. at 5–8.

51 See, e.g., RESTATEMENT (SECOND) OF TORTS § 6 cmt. a (AM LAW INST 1965). The Palsgraf case is a notable example of a court discussing both rights-and-remedies and fault-based liability. Palsgraf v. Long Island R.R., 162 N.E. 99, 99 (N.Y. 1928) (“Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do.” (internal quotations omitted)).

52 POLLOCK, supra note 47, at 6.

53 See BIGELOW, supra note 47, at 260–71.

liability tort.54 This tripartite division of nuisance survives to the present day.55

InTexas,Pennsylvania,andelsewhere,thesethreehistoricalconcepts the development of public nuisance, the varied usage of the term, and the development of fault-based liability all contributed to the development of modern nuisance doctrine. Predictably, they also created much confusion along the way, and this confusion persists today.

III. MODERN PRIVATE NUISANCE

Both Texas and Pennsylvania, as well as other jurisdictions in oil and gas producingstates includingColorado, WestVirginia, North Dakota,Ohio, and New York have adopted Sections 821 and 822 of the Restatement (Second) of Torts, outlining the elements of nuisance. While these elements remain part of the nuisance inquiry in those jurisdictions, the Texas Supreme Court concludedinarecent opinionthat, “[g]iven thelongand storied history of nuisance law, it is not surprising that the courts and parties in this case havestruggledtoarticulatetheelementsof[theplaintiff’s]nuisanceclaim.”56 The decision, Crosstex North Texas Pipeline v. Gardiner, provides some much-needed clarification for how the concept of nuisance will now be applied in Texas, and while not binding in other jurisdictions with significant energy development, may serve as guidance to such jurisdictions. But while Crosstex is perhaps the Texas Supreme Court’s most comprehensive discussion of private nuisance to date, it does not answer every question, nor could it, and it is not binding on courts outside of the state.

This Article outlines the general elements of nuisance law under the Sections 821 and 822 of the Restatement (Second) of Torts, which have been adopted by Texas and Pennsylvania courts, and examines some common issues that arise in connection with nuisance claims. We then describe how Crosstex addresses the historical “accidents” that have created much of the confusion surrounding nuisance. Finally, this Article considers a few defenses in the nuisance context.

54 See RESTATEMENT (FIRST) OF TORTS § 822 (AM LAW INST 1939).

55 See e.g., RESTATEMENT (SECOND) OF TORTS § 822 (AM LAW INST 1979). Professor Keeton advocated for limiting private nuisance to intentional private nuisance in order to limit confusion; negligent nuisance and strict liability nuisance would be handled as simple negligence cases and strict liability cases. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 603 (Tex. 2016) (“When Keeton took over the commentary, however, he abandoned the threecategory approach because ‘the utilization of the same label ‘nuisance’ to describe all these types of actionable conduct brings about much confusion regarding when the conduct is actionable and what the defenses to such conduct should be.’”). The Texas Supreme Court rejected Keeton’s approach in Crosstex Id.

56 Crosstex, 505 S.W.3d at 617.

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A. Elements of a Private Nuisance Case

To establish a claim for private nuisance in Texas,57 Pennsylvania, and otherjurisdictionsthathaveadoptedSections821and822oftheRestatement (Second) of Torts, a plaintiff must prove that the conduct at issue “is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.”58 For claims governed by jurisdictions adopting this definition, plaintiffs must prove: (1) standing; (2) legal injury; (3) tortious conduct; (4) causation;and(5)actualdamages.Eachoftheseelementsisdiscussedbriefly below.

1. Standing. The plaintiff must have a legally cognizable interest in the property.59

Because nuisance is related to property rights, sometimes there is a questionas to whether thosewithout legal title such astenants or a property owner’s family members have any right to complain of a nuisance. Generally, they do. At one time, a plaintiff only had standing if he was the landowner. Courts have since relaxed the standing requirement so that generally “any interest sufficient to be dignified as a property right will support the action.”60 The modern standing requirements, however, still exclude those such as employees, customers, and the like.

Comment a to Section 821E of the Restatement (Second) of Torts limits nuisance claims to those who have “property rights and privileges in respect to the use and enjoyment of the land affected,” that is, “legally protected interests.”61 However, this does not necessarily require that those asserting a nuisance claim are property owners they merely must have a legal right associated with the property at issue.62

57 Despite discussing numerous aspects of Texas nuisance law in Crosstex, the court did not lay out a list of elements applicable to all nuisance claims. Therefore, even after Crosstex, it appears as though the elements of nuisance laid out in sections 821 and 822 of the Restatement (Second) of Torts still apply.

58 RESTATEMENT (SECOND) OF TORTS § 822; see also Washak v. Moffat, 109 A.2d 310, 314 (Pa. 1954).

59 The court did not expressly address standing in Crosstex, but the decision appeared to implicitly recognize standing as an element. See generally Crosstex, 505 S.W.3d 580 (discussing “plaintiffs’ property” numerous times). Many other decisions in Texas, Pennsylvania, and other jurisdictions recognize standing as an element. See infra notes 60–63 and accompanying text.

60 KEETON ET AL , supra note 17, § 87.

61 RESTATEMENT (SECOND) OF TORTS § 821E & cmt. a.

62 Id

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InTexasandPennsylvania,arighttooccupytheproperty,whichtenants and a property owner’s family members have, is sufficient to give a plaintiff standing. The type of standing held by a plaintiff does, however, affect the plaintiff’s remedy. In other words, a plaintiff’s right determines the remedy. So, while mere occupants of property may have standing to seek damages for personal injury, they generally cannot seek to recover permanent property damages.63 However, there is some authority for the proposition that a mere occupant may, in certain circumstances, recover property damages without legal title.64

2. Legal Injury. A plaintiff must show substantial interference of the use and enjoyment of property that caused unreasonable discomfort or annoyance to the plaintiff.65

Therearenot clearlydelineatedboundsonthetypesofinterferencesthat may constitute a nuisance ”[v]irtually any disturbance of the enjoyment of the property may amount to a nuisance.”66 The interference may be physical damage to property, economic harm to property’s market value, harm to the plaintiff’s health, or psychological harm to the plaintiff’s peace of mind in the use and enjoyment of their property.67

To constitute a nuisance under Texas law, however, the interference must be “substantial” and cause “unreasonable” discomfort and annoyance.68

63 See, e.g.,Auchardv.Tenn.ValleyAuth., No. 3:09-CV-54,2011 U.S.Dist.LEXIS30407, at *13 (E.D. Tenn. Mar. 22, 2011) (rejecting application of section 821E and finding that “because [the adult child who lived with parent landowners] has no property interest in the Chandler Lane tract and because her sole claim is a private nuisance claim for loss of use and enjoyment of the property, she has no standing to assert such a claimand [defendant] is entitled tosummaryjudgment as a matter of law”); In re One Meridian Plaza Fire Litig., 820 F. Supp. 1460, 1480 (E.D. Pa. 1993) (“I hold that the only plaintiffs who have a sufficient interest in property to bring a private nuisance claim are [tenants], as they all leased space which was allegedly the subject of the private nuisance.”); Hot Rod Hill Motor Park v. Triolo, 293 S.W.3d 788, 791 (Tex. App. Waco 2009, pet. denied) (applying section 821E and holding that adult child, who listed his parents’ address as his address and stayed there with some regularity but did not pay bills or taxes on the property, lacked standing to bring a private nuisance claim); RESTATEMENT (SECOND) OF TORTS § 821E cmt. b (acknowledging that the Restatement provision on nuisance “does not state the rules applicable in determining when a person’s rights and privileges in respect to land constitute property rights and privileges” for purposes of standing in a nuisance suit, deferring instead to property law for that determination).

64 See New v. Khojal, No. 04-98-00768-CV, 1999 Tex. App. LEXIS 6575, at *7 (Tex. App. San Antonio Aug. 31, 1999, no pet.) (not designated for publication) (standing for property damages claim where man lived in deceased mother’s home for over a decade, paid for taxes and repairs, and believed himself to be the owner of the house after his mother died).

65. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 597 (Tex. 2016).

66 Id. at 596.

67 Id.

68 Id. at 595–96.

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These conditions distinguish nuisances from “the petty annoyances and disturbances of everyday life.”69 However, unless the underlying facts are undisputed orreasonablemindscannot differ,these distinctions are generally questions of fact, “the practical judgment of an intelligent jury” must decide “[t]he point at which an odor moves from unpleasant to insufferable or when noise grows from annoying to intolerable.”70

Likewise in Pennsylvania, in order to constitute the legal cause of an invasion of an interest in property, plaintiffs must show that a defendant’s conduct was a substantial factor in causing the harm to such interest.71 Additionally, the harm alleged must be “significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.”72 “Significant harm” is defined as “harm of importance” which, for private nuisance, must involve “real and appreciable invasion with the plaintiff’s use or enjoyment of his land.”73 The harm suffered by a private nuisance plaintiff must be more than mere fear of harm or unease with a defendant’s actions.74 Additionally, the inability to sell land is not a private nuisance.75

While legal injury issues are generally questions of fact, the Texas Supreme Court clarified two important legal points in Crosstex: (1) the focus is on the unreasonableness of the interference’s effect on plaintiff’s comfort or contentment and not on defendant’s conduct; and (2) the determination must be based on an objective standard of persons of ordinary sensibilities and not on the subjective response of any particular plaintiff.76 In short, to show a legal injury of nuisance, a plaintiff need not prove the defendant’s

69 Id. at 595; see also Kamuck v. Shell Energy Holdings GP, LLC, No. 4:11-CV-1425, 2012 U.S.Dist.LEXIS59113,at*43 (M.D.Pa. Mar. 19, 2012) (holding thatwhilelevelof intrusion is typically a fact issue, plaintiff could identify only increased truck traffic and Pennsylvania courts have concluded traffic is too trivial to present a nuisance claim).

70 Crosstex, 505 S.W.3d at 609 (quoting Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 155 (Tex. 2012)).

71. See Diess v. Pa. Dep’t of Transp., 935 A.2d 895, 906–07 (Pa. Commw. Ct. 2007) (citing RESTATEMENT (SECOND) OF TORTS § 433 (AM LAW INST 1965)).

72 Kembel v. Schlegel, 478 A.2d 11, 15 (Pa. Super. Ct. 1984) (citing RESTATEMENT (SECOND) OF TORTS § 821F (AM LAW INST. 1979)).

73 RESTATEMENT (SECOND) OF TORTS § 821F cmt. c.

74 Id. § 821F cmt. f; see also Simmons v. Pacor, Inc , 674 A.2d 232, 239–40 (Pa. 1996) (holding that damages for fear of injury or disease are not recoverable absent a physical manifestation of the injury or disease); In re Wier, 74 Pa. 230, 239 (1873) (holding that plaintiffs must establish private nuisance by clear and satisfactory proof of actually existing danger).

75 See Golen v. Union Corp., U.C.O.-M.B.A., Inc., 718 A.2d 298, 299–301 (Pa. Super. Ct. 1998) (holding that inability to sell property was, by itself, insufficient to establish private nuisance because if the court were to grant the request for compensation, liability would attach any time property owner engaged in activity that ostensibly reduced surrounding property values).

76 Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 593

94 (Tex. 2016); see also Kembel, 478 A.2d at 14–15.

conduct was unreasonable, but he cannot rely on his own particular sensitivities.

3. Tortious Conduct. The plaintiff must prove that the defendant intentionally, negligently, or through an abnormally dangerous activity interfered with the plaintiff’s use and enjoyment.77

The proper standards for culpable conduct whether a nuisance is intentional, negligent, or subject to strict liability have been at issue in a number of recent cases. Crosstex clarifies these standards in Texas, though it leaves unanswered questions as to strict liability nuisance. Strict liability nuisance may be a less viable claim in Pennsylvania courts given recent decisions finding that certain oil and gas activities are not subject to strict liability. Notably, some instructions in the Texas and Pennsylvania Pattern Jury Charges on nuisance are now questionable in light of Crosstex and other case law.

To prove intentional nuisance, a plaintiff must establish that the defendant intentionally caused the interference, not just that the defendant intentionally engaged in the conduct that caused the interference.78 Intent includes not only a desire to create an interference but also knowledge that the interference is substantially certain to result.79 Intent does not entail an inquiry into whether the defendant’s conduct is unreasonable.80 It is the condition created by the interference, i.e., the effects of the conduct, rather than the defendant’s conduct that must be unreasonable.81

Negligent nuisance operates on ordinary negligence principles.82 To establish negligence, a plaintiff must show the existence of a legal duty, a breach of that duty, and damages proximately caused by it.83 To establish breach, a plaintiff must show that the defendant did or failed to do what a

77 See Crosstex, 505 S.W.3d at 606; see also RESTATEMENT (SECOND) OF TORTS § 821E.

78 Crosstex, 505 S.W.3d at 599 n.11; see RESTATEMENT (SECOND) OF TORTS § 821E & cmt. a.

79 Crosstex, 505 S.W.3d at 606; see McQuiliken v. A & R Dev. Corp., 576 F. Supp. 1023, 1030 (E.D.Pa. 1983); see also Aruba Petroleum, Inc. v. Parr, No.05-14-01285-CV, 2017 Tex. App. LEXIS 873, at *18 (Tex. App. Dallas Feb. 1, 2017, no pet.) (mem. op.) (“[T]he Parrs have not cited any evidence that Aruba knew who . . made these complaints [about Aruba’s conduct] or that they were specific to the Parrs or their property.”).

80 Crosstex, 505 S.W.3d at 606; see McQuiliken, 576 F. Supp. at 1032.

81 Crosstex, 505 S.W.3d at 606; see McQuiliken, 576 F. Supp. at 1032.

82 Crosstex, 505 S.W.3d at 607; see also Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1366 (3d Cir. 1993) (applying Pennsylvania law).

83 Crosstex,505 S.W.3dat607 (notingthat, inadditiontotheordinarynegligence elements, there is a “unique element, which derives from the nature of the legal injury on which the plaintiff bases the claim, [of] the burden to prove that the defendant’s negligent conduct caused a nuisance, which in turn resulted in the plaintiff’s damages”); see also Kleinknecht, 989 F.2d at1366 (applying ordinary negligence elements).

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person of ordinary prudence in the same circumstances would have done or not done, that is, a failure to take precautions against a risk apparent to a reasonable man, e.g., to repair or abate a condition under his control.84

For culpability based on abnormal or out-of-place conduct, i.e., Rylands v. Fletcher strict liability, the underpinnings are based on the notion that the defendant engaged in activity exposing others to a risk of harm from an accidental invasionunder circumstancesthat justifyallocatingloss fromsuch risk to the defendant even though the defendant acted with reasonable care.85 In other words, the focus is on the nature of the risk rather than on the nature of the interference, “the mere fact that the defendant’s use of its land is ‘abnormal and out of place in its surroundings’ will not support a claim for nuisance; instead, in the absence of evidence that the defendant intentionally or negligently caused the nuisance, the abnormal and out-of-place conduct must be abnormally ‘dangerous’ conduct that creates a high degree of risk of serious injury.”86

Additionally, some instructions in the Texas and Pennsylvania Pattern Jury Charges are questionable in light of Crosstex and other case law. The Texas Pattern Jury Charge on intentional nuisance states that “intentionally” includes that the defendant “acted with intent with respect to the nature of his conduct.”87 As noted above, Crosstex explicitly rejects this definition of intent.88 The Pennsylvania Pattern Jury Charge on “inherently dangerous [instrumentality/material/substance]” does not include any statement

84 Crosstex, 505 S.W.3d at 607; see also Kleinknecht, 989 F.2d at 1366.

85 Crosstex, 505 S.W.3d at 607; Kembel v. Schlegel, 478 A.2d 11, 14–15 (Pa. Super. Ct. 1984).

86 Crosstex, 505 S.W.3d at 609 (taking issue with the court of appeals’ holding that the plaintiffs should have been allowed a trial amendment for an “abnormal and out of place” nuisance claim, there was no evidence in the record that the compressor station had engaged in the type of abnormally dangerous or ultra-hazardous conduct that would support such a cause of action).

87. STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES 12.2A (2018) (“‘Intentionally’ means that Don Davis acted with intent with respect to the nature of his conduct or to a result of his conduct when it was the conscious objective or desire to engage in the conduct or the result.”).

88 Crosstex, 505 S.W.3d at 605; see also City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997) (characterizing an intentional nuisance as a nuisance “inflicted by conduct which is intended to cause harm”); Aruba Petroleum, Inc. v. Parr, No. 05-14-01285-CV, 2017 Tex. App. LEXIS 873, at *17 (Tex. App. Dallas Feb. 1, 2017, no pet.) (“Evidence that [the defendant] ‘intentionally engaged in the conduct that caused the interference’ is not sufficient to establish an intentional nuisance.” (internal quotation marks omitted)); City of Princeton v. Abbott, 792 S.W.2d 161, 166 (Tex. App. Dallas 1990, writ ref’d n.r.e.) (“An invasion is intentional if (1) the actor acts for the purpose of causing it, or (2) the actor knows that it is resulting or is substantially certain to result from his conduct.”).

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regarding “abnormally ‘dangerous’ conduct.”89 As noted above, Pennsylvania requires such conduct to impose strict liability nuisance.90 Importantly, a Pennsylvania federal court recently held that hydraulic fracturing and associated natural gas drilling operations are not “abnormally dangerous” or “ultra-hazardous” activities subject to strict liability.91 The availability of strict liability nuisance is more of an open question in Texas, where Crosstex left open questions on the viability and scope of this theory,92 and in Ohio, where courts seem willing to consider differences between hydraulic fracturing and other extraction activities before deciding whether strict liability could apply.93

4. Causation. A plaintiff must prove that the defendant’s conduct was a legal cause of the interference with the plaintiff’s use and enjoyment of the property.94

Like any other tort, nuisance claims require a showing of causation. Even a modicum of evidence of causation may be sufficient to send the question to the jury. For example, in Ely v. Cabot Oil & Gas Corp., the plaintiffs claimed property damage from Cabot’s natural gas drilling operations.95 Duringtrial,afterthecloseoftheplaintiffs’case-in-chief,Cabot moved for a directed verdict based on lack of evidence of causation, citing the lack of evidence showing a definitive pathway between Cabot’s gas wells and the plaintiffs’ water wells and the fact that plaintiffs had testified that they had experienced problems with their water before Cabot began drilling

89. See PENNSYLVANIA SUGGESTED STANDARD CIVIL JURY INSTRUCTIONS 13.90 (2018) (“[A person who] [A business that] [provides] [uses] an inherently dangerous [instrumentality/material/substance] . . . must use the highest standard of care, using every reasonable precaution to avoid injury to everyone lawfully in the area. If you find [name of defendant] did not use the highest standard of care, then you must find [name of defendant] negligent.”).

90 See Kembel, 478 A.2d at 14–15.

91 Ely v. Cabot Oil & Gas Corp., 38 F. Supp. 3d 518, 519–20 (M.D. Pa. 2014) (refusing to “take a step which no court in the United States has chosen to take, and decide hydraulic fracturing to be an ultra-hazardous activity that gives rise to strict tort liability. . Instead, courts consistently have found that claims for property damage and personal injury allegedly resulting from natural gas drilling operations are governed by the more traditional negligence principles.”).

92 Crosstex, 505 S.W.3d at 609 (noting that the court was only addressing strict liability nuisance “to the extent that [such] a claim exists in Texas”).

93 Boggs v. Landmark 4 LLC, No. 1:12 CV 614, 2013 U.S. Dist. LEXIS 40134, at *8 (N.D. Ohio Mar. 11, 2013) (declining to dismiss strict liability nuisance claim and noting that, in the context of hydraulic fracturing, factual development is necessary to decide whether defendants’ activities were abnormally dangerous).

94 Crosstex, 505 S.W.3d at 605.

95 Ely, 38 F. Supp. 3d at 519.

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the gas wells at issue.96 The trial judge expressed grave concerns about the plaintiffs’ proof of causation, but, denied Cabot’s motion without prejudice and allowed the plaintiffs’ nuisance claims to be decided by the jury.97 The jury awarded plaintiffs approximately $4.25 million for their nuisance claims.98 On March 31, 2017, the court granted Cabot’s motion for new trial on two separate grounds: (1) that the verdict was against the weight of the evidence, and (2) and misconduct by plaintiffs’ counsel.99 The court “agree[d] with Cabot that the weaknesses in the plaintiffs’ case and proof, coupled with serious and troubling irregularities in the testimony and presentation of plaintiffs’ case – including repeated and regrettable missteps by [plaintiffs’] counsel in the jury’s presence – combined so thoroughly to undermine faith in the jury’s verdict that it must be vacated and a new trial ordered.”100 The court further found that the $4.24 million award “bore no discernable relationship to the evidence, which was at best limited.”101 At the time of this writing, a new trial has yet to be scheduled.

Two additional causation issues are discussed below: (1) whether a plaintiff may avoid medical causation requirements under a nuisance theory; and (2) whether a plaintiff may be required to comply with a “Lone Pine” case management order before discovery.

The first issue, whether a plaintiff may, under a nuisance theory, avoid medical causation requirements for personal injuries, has been litigated in two separate cases in Texas. In Cerny v. Marathon Oil Corporation, the plaintiffs claimed that Marathon’s operations caused extensive property damage and noxious fumes, along with numerous physical ailments, including headaches, rashes, and nosebleeds.102 The plaintiffs, however, disclaimed “disease” allegations and claimed to seek damages only for “discomfort.”103 Despite this disclaimer, the court granted Marathon’s motion for summary judgment on grounds that the plaintiffs could not prove

96. See Defendant Cabot Oil & Gas Corporation’s Brief in Support of Its Motion Under Rules 50 and 59 of the Federal Rules of Civil Procedure for Judgment as a Matter of Law, New Trial, or Remittitur at 8–11, Ely v. Cabot Oil & Gas Corp., No. 3:09-cv-02284-JEJ-MCC (M.D. Pa. Apr. 25, 2018) (Doc. 765).

97 Ely, 38 F. Supp. at 519.

98 See Defendant Cabot Oil & Gas Corporation’s Brief in Support of Its Motion Under Rules 50 and 59 of the Federal Rules of Civil Procedure for Judgment as a Matter of Law, New Trial, or Remittitur at 4, Ely v. Cabot Oil & Gas Corp., No. 3:09-cv-02284-JEJ-MCC (M.D. Pa. Apr. 25, 2018) (Doc. 765).

99 See Ely v. Cabot Oil & Gas Corp., No. 3:09-cv-02284-JEJ-MCC, 43 (M.D. Pa. March 31, 2017) (Doc. 799).

100. See id. at 3–4.

101 See id. at 4.

102 480 S.W.3d 612, 622–23 (Tex. App. San Antonio 2015, pet. denied).

103 Id. at 615–16.

causation.104 As to the plaintiffs’ physical ailments, the court held that plaintiffs could not meet the medical causation requirements the Texas Supreme Court set forth in Merrell Dow Pharmaceuticals, Inc. v. Havner, requiring a plaintiff to present reliable expert testimony that establishes general and specific causation, establishes dose, and rules out other potential causes.105 The court of appeals affirmed the trial court’s grant of summary judgment.106

In Parr v. Aruba Petroleum, Inc.,theplaintiffsclaimedpropertydamage from Aruba’s operations, as well as physical ailments such as headaches, rashes,andnosebleeds.107 Aruba moved forsummaryjudgment, arguing, like Marathon in Cerny, that the plaintiffs could not meet Havner’s causation requirements. To avoid Havner, the Parr plaintiffs, like the Cerny plaintiffs, disclaimed “disease” allegations and sought damages only for “discomfort.”108 The court granted summary judgment in part but allowed plaintiffs to seek damages for injuries within the common knowledge and experience of a layperson.109 The plaintiffs then presented a “toxic tort” case to thejury. Thejuryawarded plaintiffs approximately$2.9 million, including almost $300,000 for diminution in property value.110 On appeal, the court reversed and rendered a take-nothing judgment but did not reach the causation issue.111

Second, “Lone Pine” orders, which have been litigated recently in Colorado and other jurisdictions, may be a viable discovery tactic in some jurisdictions.112 In many cases, energy companies have attempted to obtain “Lone Pine” orders requiring toxic tort plaintiffs to provide evidence of injury, exposure, and causation before discovery, facts generally only obtainable by the plaintiff, or face dismissal.113

104 Id. at 625.

105 Id. at621–22; see Merrel Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,720 (Tex. 1997).

106 Cerny, 480 S.W.3d at 625.

107 Appellee's Brief at 10, Parr v. Aruba Petroleum, Inc., No. 05-14001285-CV, 2017 Tex. App. LEXIS 873 (Tex. App. Dallas Feb. 1, 2017, no pet.), 2015 Tx. App. Ct. Briefs LEXIS 1635 at *14.

108 Id. at *27. The plaintiffs in Parr added their “disclaimer” to their petition before the plaintiffs in Cerny, but the Cerny case reached final judgment before the Parr case.

109

110

Id. at *38–39.

Id. at *2.

111 Aruba Petroleum, Inc. v. Parr, No. 05-14-01285-CV, 2017 Tex. App. LEXIS 873, at *2, *3 n.2 (Tex. App. Dallas Feb. 1, 2017, no pet.).

112

See, e.g., Lore v. Lone Pine Corp., No. L 33606-85, 1986 N.J. Super. LEXIS 1626 (N.J. Super. Ct. Law. Div. Nov. 18, 1986) (originating case from which these discovery control orders derive their name, the court ordered plaintiffs to provide specific documentation regarding each claim for personal injuries and information and reports supporting each individual plaintiff’s claim for diminution of property value).

113 See Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 268 (Tex. 2004) (noting the trial court signed a “Lone Pine” order regarding plaintiffs’ nuisance claims).

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In Antero Resources Corp. v. Strudley, 114 a Colorado district court entered a “Lone Pine” order requiring plaintiffs to make a prima facie showing linking their alleged personal injuries to the defendant’s nearby oil and gas drilling.115 In their lawsuit, the plaintiffs alleged that Antero’s hydraulic fracturing operations contaminated their water well and caused a myriad of personal injuries.116 When the plaintiffs failed to make a prima facie showing of any connection between Antero’s activities and their injuries, the trial court dismissed the lawsuit with prejudice.117 The Colorado Court of Appeals subsequently reversed the “Lone Pine” order and the dismissal order,holdingthat a“Lone Pine” order wasinappropriatefor acase that was not “any more complex or cost intensive than an average toxic tort claim.”118 The Colorado Supreme Court agreed with the court of appeals, holding that the Colorado Rules of Civil Procedure do not allow a trial court to use a case management order such as a “Lone Pine” order, and remanded the case to the trial court.119

Although the Colorado Supreme Court’s decision forecloses the use of “Lone Pine” orders in state court cases in Colorado, the ruling is based on the unique language of Colorado Rule of Civil Procedure 16, which limits a trial court’s discretion and has no parallel in Texas or Pennsylvania. Indeed, defendants have obtained “Lone Pine” orders in other jurisdictions,120 although thetimingof requestingone can affect a court’s willingnessto grant one.121 “Lone Pine” orders “appear to be utilized most often in cases

114 Antero Res. Corp. v. Strudley, 347 P.3d 149 (Colo. 2015).

115 Id. at 151.

116 Id.

117. Id.

118 Id. at 153; Strudley v. Antero Res. Corp., 350 P.3d 874, 882 (Colo. App. 2013).

119 See Antero Res. Corp., 347 P.3d at 158−59.

120 See, e.g., Burns v. Universal Crop Prot. All., No. 4:07-CV-535, 2007 U.S. Dist. LEXIS 71716, at *10 (E.D. Ark. Sept. 25, 2007) (granting a “Lone Pine” order before commencing discovery); Morgan v. Ford Motor Co., No. 06-1080 (JAP), 2007 U.S. Dist. LEXIS 36515, at *37, *40, *44 (D.N.J. May 17, 2007) (holding that in a mass action, “[d]efendants are not entitled to file what amounts to a summary judgment motion without first allowing the party opposing the motion a chance to conduct discovery” and instead mandated that plaintiffs provide only “a simple statement from each plaintiff pursuant to Rule 26(a)(1) identifying the ‘nature and extent of injuries suffered’” and also granted a request for the use of bellwether plaintiffs as a case management tool); Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476, 480−81, 497 (M.D. Pa. 2013).

121 See, e.g., Abrams v. Ciba Specialty Chem. Corp., No. 08-00068-WS-B, 2008 U.S. Dist. LEXIS 86487, at *18 (S.D. Ala. Oct. 23, 2008) (declining to issue a Lone Pine order precisely because some discovery had already occurred and noting that “Lone Pine orders are ‘pre[]discovery’ orders. . . . [T]he entry of a Lone Pine order is unwarranted. . . . [T]he properties of each Plaintiff have been tested for the presence of [the chemical substance] DDTr and Defendants have been provided with the results.”); Morgan, 2007 U.S. Dist. LEXIS 36515, at *39−40; Simeone v. Girard City Bd. of Educ., 872 N.E.2d 344, 352 (Ohio Ct. App. 2007) (overturning a trial court’s grant of a Lone Pine order as an abuse of discretion because “[t]he timing of the issuance of the

involving complicated legal and factual issues in complex mass tort and toxic-tort litigation involving multiple parties,”122 although their future viability may be in question.

5. Actual Damages. A plaintiff must prove that the interference resulted in actual damages to the plaintiff.123

The general damages remedies for nuisance are fairly well defined. In general, for a temporary nuisance, the landowner may recover only lost use and enjoyment e.g., loss of rental value or possibly the cost of restoration.124 If permanent, the plaintiff may recover lost market value, a value which reflects all property damages, including lost rents expected in

‘Lone Pine’ order . . . [before discovery] effectively and inappropriately supplanted the summary judgment procedure” and shifted the usual burdens of proof onto the non-moving party).

122 Roth v. Cabot Oil & Gas Corp., 287 F.R.D. 293, 297 (M.D. Pa. 2012); see also Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000) (“Lone Pine orders are designed to handle the complex issues and potential burdens on defendants and the court in mass tort litigation” and such orders “are issued under the wide discretion afforded district judges over the management of discovery under Fed. R. Civ. P. 16.”).

123 In light of the emphasis in Crosstex on the “legal injury” (or invasion of a legal right) aspect of nuisance, some may argue that actual damages are no longer an essential element. It is true that there is some authority for the general proposition that actual damages are not required, and nominal damages may be recovered, when a “plaintiff sues for damages for the invasion of a legal right, andfailstoshowonthetrial anyactual damagesustained.” See, e.g., Ehlertv.Galveston, H. & S. A. Ry., 274 S.W. 172, 174 (Tex. Civ. App. Galveston 1925, writ dism’d w.o.j.). For example, actual damages are not an essential element for trespass claims. See, e.g., Meyers v. Ford Motor Credit Co.,619 S.W.2d572,573 (Tex. Civ. App. Houston[14th Dist.] 1981, no writ) (“The law is well settled that a trespasser is liable to the property owner even though there is no proof of actual damages in any specific amount.”).

Despite the general proposition above, and the Texas Supreme Court’s emphasis in Crosstex on “legal injury,” actual damages are likely still an essential element of a nuisance claim. First, nuisance is derived from trespass on the case, and the court has explained that if a trespass on the case occurs, the plaintiff “must prove actual injury” and is not entitled to nominal damages. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 11 (Tex. 2008). Second, without actual damages, a nuisance claim should logically fail to meet the legal injury requirements, that the interference is substantial and unreasonable. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 596 (Tex. 2016) (“Only a substantial interference that has unreasonable effects constitutes ‘the kind for which the defendant should be liable in damages.’” (quoting W. PAGE

KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 88, at 628 (5th ed. 1984)); Trinity Portland Cement Co. v. Horton, 214 S.W. 510, 511 (Tex. Civ. App. Amarillo 1919, writ dism’d w.o.j.) (stating that nominal damages are not available for nuisance because “[t]he gravamen of the action is the injury”); Thomas W. Merrill, Trespass, Nuisance, and the Costs of Determining Property Rights, 14 J. LEGAL STUD. 13, 18 (1985) (“Failure to show actual damages in nuisance . . . usually results in the denial of all relief (because of the failure to satisfy the ‘substantial harm’ requirement for liability).”).

124 See Crosstex, 505 S.W.3d at 610.

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the future.125 The presumed highest and best use of land, against which damages are to be measured, is its existing use.126 Although generally, the test in permanent injury is the market value before and after the injury, where there is no isolated event that caused the injury, the proper comparison may be of market value with and without the alleged nuisance.127 Yet, issues remain to be resolved.

One area of dispute is the possibility of damages for “annoyance and discomfiture” or “inconvenience and discomfort.” Like many other areas of nuisancelaw, thereis considerable conflictingauthorityon the scope of these kinds of damages, and it is unclear whether and how these damages might interact with other categories of damages, such as mental anguish. In Pennsylvania, nuisance plaintiffs may recover for “personal annoyance, inconvenienceand discomfort” in additionto damages for loss of use and enjoyment of the property.128 Such damages are “wholly within the sound discretion of the jury” and are not addressed in the Pennsylvania Pattern Jury Charge.129

Texas law is less defined in this area, and some authority even suggests that non-physical “annoyance and discomfiture” is not an injury that allows an award of separate damages.130 Because annoyance and discomfiture

125. Id. (quoting Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 276 (Tex. 2004)); see Hughes v. Emerald Mines Corp , 450 A.2d 1, 8 (Pa. Super. Ct. 1982); Bumbarger v. Walker, 164 A.2d 144, 150 (Pa. Super. Ct. 1960).

126 See Crosstex, 505 S.W.3d at 611.

127 Id. at611–12. One issue currentlybeing litigated in Texas is the scope of injunctive relief available.In Lazy R Ranch, L.P. v. ExxonMobil Corp.,thetrialcourtawardedinjunctiverelief which would require the defendant to incur substantial remediation costs. 456 S.W.3d 332, 336–37 (Tex. App. El Paso 2015, pet. granted), aff’d in part and rev’d in part, 511 S.W. 3d 538 (Tex. 2017). On appeal to the Texas Supreme Court, petitioners and amici have argued that the trial court’s injunction essentially allowed plaintiffs’ an end-around the fair market value cap for permanent damages. Petitioners have asserted that the remediation costs are over 100,000 times the market value of the land.

128 Noerr v. Lewistown Smelting & Refining, Inc., 60 Pa. D. & C.2d 406, 458 (Pa. Ct. Com. Pl. 1964); see Evans v. Moffat, 160 A.2d 465, 473 (Pa. Super. Ct. 1960) (“The additional award was for the personal annoyance and discomfort plaintiffs suffered not merely loss of use and enjoyment.”).

129. Noerr, 60 Pa. D. & C.2d at 458.

130 See Vestal v. Gulf Oil Corp., 235 S.W.2d 440, 441 (Tex. 1951) (construing case law to state that additional damages are only allowed for “damages to health or physical discomfort”). Rather, in some instances, these damages seem to be treated as a “loss of enjoyment” and are considered part of property damages. See Schneider Nat’l Carriers, 147 S.W.3d at 269 n.5 (stating Vestal held “award for discomfort and loss of enjoyment was not claim for personal injuries”); Brooks v. Chevron USA Inc., No. 13-05-029, 2006 Tex. App. LEXIS 4479,at *22 n.9 (Tex. App. Corpus Christi May 25, 2006, pet. denied) (citing Vestal for the proposition that “symptoms of discomfort or loss of enjoyment are not personal injury damages”); Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex. 1984) (citing Vestal for the proposition that “[w]here an injury to realty is permanent, the general measure of damages comprehends and includes the loss of use and enjoyment”). In other cases, “annoyance and discomfiture” appears to be treated as a separate

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damages were not pled in Crosstex, the court there declined to address “the scopeofthesedamagesordetermineiftheyareavailableforeithertemporary nuisance, permanent nuisance, or both.”131

Damages for inconvenience and discomfort may be recoverable under both a negligence theory and a nuisance theory. In Houston, the plaintiffs brought a claim for negligence, but not nuisance.132 While the court ultimately determined that inconvenience and discomfort damages were not permissible because of deficient pleadings, the court implied that were the damages specifically plead, they would be allowed under negligence.133

There is little guidance given by jury charges regarding annoyance and inconvenience damages. In Evans, the court heard testimony from the plaintiffs regarding “gases and their foul odors, their prevalence, the choking and irritating effect they have on the throat, the interference with sleep they cause,howtheyproduceheadachesandcausenauseaandgeneral discomfort, nuisance and annoyance.”134 In Noerr, the jury awarded damages for

and distinct kind of damages. See, e.g., Lacy Feed Co. v. Parrish, 517 S.W.2d 845, 851 (Tex. Civ. App. Waco 1974, writ ref’d n.r.e.) (“[D]amage to the Property of the Plaintiff (which includes loss in market value as well as loss of the use and enjoyment of the property) is one element of damage; whereas, damage to the Person of the Plaintiff (for personal discomfort, annoyance, and inconvenience) is a separate and distinct, and different element of damage.”).

131 Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 610–11 n.21 (Tex. 2016); see also City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997) (noting that a nuisance claim may give rise to these damages); Schneider Nat’l Carriers, Inc., 147 S.W.3d at 292 n.144 (Tex. 2004) (“[T]he residents do not allege the nuisances here caused personal injuries beyond symptoms of discomfort and annoyance . . . .”).

132 Houston v. Texaco, Inc., 538 A.2d 502, 503 (Pa. Super. Ct. 1988).

133 It is well established that inconvenience and discomfort damages must be pled to be awarded. See id. at 506 (“[A]lthough the law does recognize a cause of action for inconvenience and discomfort caused by interference with another’s peaceful possession of his or her real estate, such a claim must be pleaded.”); see also Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476, 494 (M.D.Pa. 2013) (dismissing cause of action for nuisance and clarifying that Houston requires a claim for inconvenience and discomfort damages to be pleaded in order to be awarded, but is not in itself independent cause of action).

Although the Houston court ultimately decided that inconvenience and discomfort damages were not recoverable, the trial court’s jury charge in that case is notable: Since certain expenses of all of these plaintiffs have been paid to date by [defendant], such as the drilling of new wells on their properties, your determination of the appropriate damages on the unique facts of this case must be determined as follows: With regard to what we call compensatory damages: 1. Each plaintiff shall be entitled to be reasonably compensated for all aggravation and inconvenience that he or she has suffered as a result of the contamination of their well water; 2. And this is still part of what we call compensatory damages. Each plaintiff shall be entitled to be reasonably compensated for all mental anguish suffered or to be suffered as a result of the contamination of their well water in the manner in which the gas station has been and is being operated.

Houston,538 A.2dat504. See also Noerr, 60 Pa. D. &C.2dat 438 (awarding $2000 for annoyance, inconvenience, and discomfort in addition to damages to personal property; damages to real property were not at issue).

134 Evans v. Moffat, 160 A.2d 465, 472 (Pa. Super. Ct. 1960).

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annoyance, inconvenience, and discomfort damages after hearing evidence of “frequent sore throats, headaches, sensation of eyes burning, inability, at times, to sleep with the windows open, discoloration of painted surfaces, soiling of clothes on wash line and being required to spend extra hours of work tending to sick cattle .”135

Another open question under Texas and Pennsylvania law is the availability of “stigma” damages. A majority of federal and state courts that have addressed the issue have held that to recover damages for lost market value based on stigma, there must be physical damage to the property.136

Although the Pennsylvania Supreme Court has not yet ruled on this issue, the Third Circuit has attempted to predict what it would decide:

TheU.S.Court of Appeals for the ThirdCircuithas held thateligibility for stigma damages [under Pennsylvania law] entails three elements:

“

(1) defendants have caused some (temporary) physical damage to plaintiffs’ property; (2) plaintiffs demonstrate that repair of this damage will not restore the value of the property to its prior level; and

(3) plaintiffs show that there is some ongoing risk to their landFalse Paoli II specifically requires proof of some real physical damage to plaintiffs’land,somedamagethat‘existsinfact’asopposedtodamage caused by negative publicity alone.”137

Significant for high-profile litigation like recent cases involving hydraulic fracturing Pennsylvania law does not allow a plaintiff to recover damages for stigma due to negative publicity alone.138 While not explicitly defined, the term “ongoing risk,” as used in Paoli II appears to mean that there is an ongoing risk associated with physical property damage (such as the continued presence of PCBs on the property, or the small risk of future flooding). However,aclaimthata propertyisunmarketableduetothe stigma

135 Noerr, 60 Pa. D. & C.2d at 437.

136 See, e.g., In re Paoli R.R. Yard PCB Litig , 113 F.3d 444, 463 (3d Cir. 1997); Bradley v. Armstrong Rubber Co., 130 F.3d 168, 175–76 (5th Cir. 1997); Adams v. Star Enter., 51 F.3d 417, 424 (4th Cir. 1995); Berry v. Armstrong Rubber Co., 989 F.2d 822, 829 (5th Cir. 1993); Lewis v. Kinder Morgan Se. Terminals LLC, Nos. 2:07cv47KS-MTP, 2:07cv48KS-MTP, 2008 U.S. Dist. LEXIS 61060, at *5 (S.D. Miss. Aug. 6, 2008) (memorandum opinion); Mehlenbacher v. Akzo Nobel Salt, Inc., 71 F. Supp. 2d 179, 188 (W.D.N.Y. 1999), rev’d on other grounds, 216 F.3d 291 (2d Cir. 2000); Mercer v. Rockwell Int’l Corp., 24 F. Supp. 2d 735, 744 (W.D. Ky. 1998); Wilson v. Amoco Corp., 33 F. Supp. 2d 981, 986 (D. Wyo. 1998); In re W.R. Grace & Co., 346 B.R. 672, 675 (Bankr. D. Del. 2006); Smith v. Kan. Gas Serv. Co., 169 P.3d 1052, 1059 (Kan. 2007); Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1246–47 (Utah 1998); Chance v. BP Chems., Inc., 670 N.E.2d 985, 993 (Ohio 1996).

137 Kemblesville HHMO Ctr., LLC v. Landhope Realty Co., No. 08-2405, 2011 U.S. Dist. LEXIS 83324, at *12 (E.D. Pa. July 28, 2011) (first quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 798 (3d Cir. 1994); and then quoting In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 462–63 (3d Cir. 1997)).

138 See O’Neal v. Dep’t of the Army, 852 F. Supp. 327, 336 (M.D. Pa. 1994); see also Gates v. Rohm & Haas Co , NO. 06-1743, 2008 U.S. Dist. LEXIS 58036, at *8 (E.D. Pa. Jul. 31, 2008).

associated with alleged contamination, without more, is insufficient to supportaclaimfornegligenceornuisancedamages.In Golen v. Union Corp., the appellants claimed that their property was unmarketable due to pollution from the appellee’s operations, and appellants sought to recover damages under a theory of private nuisance for the inability to sell the property.139 The court denied the claim, holding that the “appellants’ claim of inability to sell property is, by itself, insufficient to establish a private nuisance” and noting that permitting recovery purely for the inability to sell property would “allow unfounded prejudices to dictate property use.”140

Texas has also not squarely addressed the issue of stigma. In Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, the Texas Supreme Court noted as much, yet left the question open.141 Texas has disallowed damages for nuisance “based on fear, apprehension, or other emotional reaction that results from the lawful operation of industries” in the past, but the availability of stigma damages, and whether physical damage to the property is required, remains an open question.142

B. Redefining Private Nuisance in Texas Crosstex North Texas Pipeline v. Gardiner

In Crosstex, issued June 24, 2016, the Texas Supreme Court considered a noise nuisance claim involving a natural gas compressor station, seizing on the opportunityto redefine nuisance law.143 Taking a different tone than prior opinions, the Crosstex court’s analysis squarely addressed Texas’s stance on the three historical accidents that have troubled nuisance law for over a century.144

139 718 A.2d 298, 300 (Pa. Super. Ct. 1998).

140. Id. at 301 (“Although hazardous waste contamination is undeniably pernicious, when such contamination only impacts a property owner’s ability to sell his or her property, a nuisance action does not exist.”).

141. 443 S.W.3d 820, 822 (Tex. 2014) (“Although some federal and other states’ courts have recognized a legal right to recover stigma damages, we have never addressed the issue. We decline to do so here, however, because even if we recognized such a right, the landowner's evidence of lost market value in this case is not legally sufficient to support the trial court's judgment.”).

142 Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 100 (Tex. App. Houston [1st Dist.] 1994, no writ); see also Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 512 (Tex. App. Eastland 2008, pet. denied) (holding that where the challenged activity is lawful, nuisance actions are limited to “instances in which the activityresults in some invasion of the plaintiff’s property and by not allowing recovery for emotional reaction alone”).

143 Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 592 (Tex. 2016).

144 Id.; cf. Wales Trucking Co. v. Stallcup, 474 S.W.2d 184, 186–87 (Tex. 1971) (refusing to attempt to give nuisance “any exact or comprehensive definition”).

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First, the court distinguished public nuisance from private nuisance.145 A claim for public nuisance “generally addresses conduct that interferes with ‘common public rights’ as opposed to private individual rights.”146 Although the court declined to address public nuisance in full, its short discussion was in line with most moderntreatises public and privatenuisanceeither annoy or inconvenience whomever they affect.147 The court further acknowledged that “[a]lthough a public nuisance may also be a private nuisance, they are two distinct conditions with different requirements and limitations.”148

Second, the court examined the varied usage of the term nuisance and held that private nuisance is neither a cause of action nor a description of the defendant’s conduct; rather, it is a legal injury related to the plaintiff’s use and enjoyment of property.149 Stated another way, nuisance a particular type of injury to a person’s right to use and enjoy property is only one element of a cause of action and “‘[a]n injury without wrong does not create a cause of action.’”150

Third, the court clarified that liability for nuisance is fault-based. Consistent with most Texas decisions in the past few decades, the court held that an action for nuisance could be based an intentional, negligent, or strict liability conduct.151 In doing so, it rejected the urging of commentators to limit nuisance to intentional conduct, that is that negligent nuisance should be treated as a normal negligence claim, and strict liability nuisance should be treated as a normal strict liability claim.152

145 Crosstex, 505 S.W.3d at 591. Most modern Texas cases acknowledge the distinction between public and private nuisance, but courts have, at times, usually in dicta, blurred the lines between the two. Compare Sciscoe v. Enbridge Gathering (N. Tex.), L.P., 519 S.W.3d 171, 182 (Tex. App. Amarillo 2015, pet. filed) (describing three categories of nuisance as negligent, intentional, and other inappropriate conduct and citing statute dealing with public nuisances to describe what is meant by other inappropriate conduct), with City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997) (“Courts have broken actionable nuisance into three classifications: negligent invasionofanother’sinterests; intentional invasion ofanother’s interests;orotherconduct, culpable because abnormal and out of place in its surroundings, that invades another’s interests.” (citation omitted)).

146 Crosstex, 505 S.W.3d at 591 n.3 (citation omitted).

147 Id. at 590–91 (internal citations omitted).

148. Id. at 591 n.3; see supra notes 26–28 and accompanying text. The boundaries of public nuisance are beyond the scope of this article, but many of the same principles apply in public nuisance cases. See, e.g., Ortega v. Phan-Tran Prop. Mgmt., LLC, No. 01-15-00676-CV, 2016 Tex. App. LEXIS 6177, at *11–12 (Tex. App. Houston [1st Dist.] June 9, 2016, pet. denied) (mem. op.) (holding summary judgment proper on negligent public nuisance claim because there was no evidence that defendant owed plaintiff a duty) [Disclosure: Mr. Stewart is counsel for Phan-Tran in the Ortega case.].

149 Crosstex, 505 S.W.3d at 594.

150. Id. at 601 (quoting State v. Brewer, 169 S.W.2d 468, 471 (Tex. 1943)).

151 Id. at 601–02; see also City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997) (discussing the three categories of actionable nuisance).

152 Crosstex, 505 S.W.3d at 604.

Finally, the Texas Supreme Court addressed the difference between private nuisance and trespass. Both involve an interference with an interest in land, and the distinction between the two has been “complex and troublesome.”153 For example, the court “recently referred in passing to trespass claims as those that involve a physical entry as distinguished from nuisance claims in which the entry . . . is ‘not physical.’”154 However, the modern distinction between the two is that “a trespass involves interference with the plaintiffs’ right to exclusive possession of their land, while a nuisance involves interference with the plaintiffs’ right to the use and enjoyment of their land.”155 If “a defendant’s conduct interferes with both, the plaintiffs may assert either claim, or both.”156

C. Some Defenses in the Nuisance Context

While a number of defenses to other torts apply to nuisance, two particular defensive theories have recently been litigated, with mixed results. First, limitations arguments continue to be a troublesome area, particularly for nuisance cases in Texas. Second, where a landowner has leased minerals under the land in dispute, a lessee recently successfully argued that the landowners/lessor were quasi-estopped to bring its claim.

First, limitations continue to be a challenging defense in the nuisance context. The limitations period for a private nuisance claim in Texas and Pennsylvania is two years.157 After the limitations period expires, any nuisance claim is barred.158 However, determining the accrual date has proved troublesome. In both jurisdictions, the accrual date depends on

153. Id. at 603 n.17 (citation omitted).

154 Id. (quoting Gilbert Wheeler Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 480 (Tex. 2014)).

155 Id. (emphasis in original). One persistent issue courts have struggled with is whether migratory microscopic particles are actionable in trespass, nuisance, or both. See HARPER ET AL, supra note 14, § 1.23, at 103 n.44 (stating that “with the increase in scientific knowledge and methods many invasions are perceived today as physical that would once have supported an action for nuisance only” and citing conflicting results). The Texas Supreme Court has not definitely weighed in on this subject. See Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 292 (Tex. 2004) (sidestepping the issue by “[a]ssuming that entry of photons, particles, or sound waves can constitute a trespass”); see also Stevenson v. E.I. DuPont De Nemours & Co., 327 F.3d 400, 405

06 (5th Cir. 2003) (making an Erie guess that “Texas law would permit recovery for airborne particulates” in trespass). One Texas appellatecourt recentlyheld “that atrespass claimunder Texas law may be premised upon the entry onto property of airborne particulates.” Sciscoe v. Enbridge Gathering (N. Tex.), L.P., 519 S.W.3d 171, 185 (Tex. App. Amarillo 2015), rev'd sub nom. Town of Dish v. Atmos Energy Corp., 519 S.W.3d 605 (Tex. 2017).

156. Crosstex, 505 S.W.3d at 603 n.17.

157 See Schneider Nat’l Carriers, Inc., 147 S.W.3d at 270; see also Dombrowski v. Gould Elecs., Inc., 954 F. Supp. 1006, 1013 (M.D. Pa. 1996).

158 Schneider Nat’l Carriers, Inc., 147 S.W.3d at 270.

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whether a nuisance is “temporary” or “permanent,” a “permanent nuisance claims accrues when injury first occurs or is discovered; a temporary nuisance accrues anew upon each injury.”159 This distinction160 has resulted in a body of case law that “has no standard of reference” and is full of irreconcilable precedents.161 Pennsylvania also recognizes continual nuisance, which is similar to permanent nuisance but is characterized by an activity is ongoing and/or repetitive.162 To classify a particular condition as permanent or continual, Pennsylvania courts consider: (1) the character of the structure or thing producing the injury; (2) whether the consequences of the nuisance will continue indefinitely; and (3) whether the past and future damages may be predictably ascertained.163 Similarly, in Schneider, the Texas Supreme Court stated that the distinction between permanent and temporary nuisance lies in whether the case involves “an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely.”164 Further complicating things, the Texas Supreme Court recently reformulated the distinction for injuries to real property so that:

 An injury to real property is considered permanent if (a) it cannot be repaired, fixed, or restored, or (b) even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated.

 [A]n injury to real property is considered temporary if (a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.165

159 Id.

160

This distinction has been called “one of the oldest and most complex in Texas law.” Id at 268.

161 Id. at 274; see also Crosstex, 505 S.W.3d at 587 n.1 (noting the same in its discussion of nuisance as “a morass”).

162. Cassel-Hess v. Hoffer, 44 A.3d 80, 87 (Pa. Super. Ct. 2012) (discussing the distinction between permanent and continuing nuisance).

163 Id. (citing Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44, 46–47 (Pa. 1964) (establishing that permanent intrusions to land must be litigated in single action for past and future damages)); see also Cass v. Pa. Co., 28 A. 161, 163 (Pa. 1893) (holding that cause of action for permanent nuisance due to bridge that blocked traffic accrued “not later than the time when the work ... hadprogressed to suchan extent as to obstruct ingress and egress”); Graybill v. Providence Twp., 593 A.2d 1314, 1317 (Pa. Commw. Ct. 1991) (finding that intermittent flooding up to ten times per year from construction activities was continuing trespass and not permanent injury).

164 Schneider Nat’l Carriers, Inc., 147 S.W.3d at 272.

165 Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 480 (Tex. 2014).

Moreover, for some nuisance cases, the problem of a “new” nuisance arises, such as where the activity changes in character during the limitations period. In some instances, what might to some have seemed a “permanent” nuisance barred by limitations has been characterized as a new “temporary” nuisance because “an old nuisance does not excuse a new and different one.”166 Particularly relevant to defendants seeking to bar claims based on limitations, an accrual date based on “subjective criteria like smell and sound,” as opposed to measurable, objective criteria (such as chemical levels in the air) may be left to the jury.167

Finally, a recent Texas case suggests a potential defense where a landowner complains of his lessee’s actions, and those actions are taken pursuant totheparties’lease. In Titan Operating LLC v. Marsden,thesurface owners brought a lawsuit against Titan claiming that noise from drilling, fumes from diesel engines, and lights from the well site that “lit up [the] whole house like a Christmas tree” constituted a nuisance.168 The jury awarded $36,000.169 The court of appeals reversed and rendered because, as a matter of law, plaintiffs were precluded from “accepting benefits under that lease . . . and later maintaining a nuisance suit against Titan for acts that the lease contemplated or authorized.”170

Pennsylvania has not recognized this particular form of estoppel as a defense to nuisance. However, Pennsylvania may consider the extent to which a plaintiff “comes to the nuisance when determining the activity’s reasonableness on the particular piece of land.”171 This consideration may indicate a willingness byPennsylvania courts to adoptthe Titan rule, because a lease constitutes an authorization for oil and gas development on land and, therefore, a tacit acknowledgement that doing so is reasonable.

166 Schneider Nat’l Carriers, Inc., 147 S.W.3d at 280; see Atlas Chem. Indus., Inc. v. Anderson, 524 S.W.2d 681, 683 (Tex. 1975) (evaluating new emissions to new property due to new natural forces, but same plaintiff, from plant operating for over forty years).

167 Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 155 (Tex. 2012) (“The point at which an odor moves from unpleasant to insufferable or when noise grows from annoying to intolerable ‘might be difficult to ascertain, but the practical judgment of an intelligent jury is equal to the task.’” (quoting Merrill v. Taylor, 10 S.W. 532, 534 (Tex. 1888))).

168 Titan Operating, LLC v. Marsden, No. 02-14-00303-CV, 2015 Tex. App. LEXIS 9076, at *9 (Tex. App. Fort Worth Aug. 27, 2015, pet. denied) (mem. op.).

169 Id. at *20.

170 Id. at *1; see also Grimes v. Goodman Drilling Co , 216 S.W. 202,204 (Tex. Civ. App. FortWorth1919,nowrit) (affirmingthat plaintiff was not“entitledtoanabatement of the nuisance” created by the drilling of a well on his property by defendants as plaintiff “purchased the premises burdened with the terms of the lease, he is in no position to complain of conditions produced by [defendants], such as are usual and customary during the drilling of an oil well”).

171 Carb v. City of Pittsburgh, No. 2440 C.D. 2010, 2011 Pa. Commw. Unpub. LEXIS 863, at *5–6 (Pa. Commw. Ct. Oct. 19, 2011).

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IV. CONCLUSION

Asthecaselawillustrates,nuisancehasbeenandremainsanamorphous doctrine. Despite much recent litigation, a host of questions remain on issues ranging from what conduct supports a nuisance claim to what damages are recoverable. Numerous nuisance cases against energy companies are still pending in various stages of trial and appeal. As the centuries-old doctrine continues to evolve, oil and gas drilling and production activities are today at ground zero in this process.

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Justice Stewart

In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or “extravagant” to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won by legal and constitutional means in England, and by revolution on this continent a right of personalsecurityagainstarbitraryintrusionsbyofficialpower.Iftimes have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served bythe Fourth Amendment more, notless, important.1 –

The courts have come down with decisions favoring law enforcement and national security over privacy, and as a result, they have had negative downstream effects on the Fourth Amendment. In some of these cases, the law and legal arguments have been sound and the results justified. However, in many decisions, judicial decisional traps have played a considerable role in weakening Fourth Amendment privacy rights. Decisional trap (“DT”) refers to a deficiency in the judicial legal analysis process itself, meaning the issue is not in the outcome of the case per se, but the outcome is a reflection that decisions were reached on weak or unsound legal basis. This Article proposesthat since Katz v. United States,variousFourthAmendment privacy cases have been negatively affected by various types of decisional traps, thereby weakening the protections Americans are afforded. DTs are still prevalent in Fourth Amendment cases, including ones that have come out in favor of privacy.

The courts have played an important role in our country, and very qualified judges have occupied the bench over the centuries. However, to be human is to err, and judges are no less human when it comes to Fourth Amendment privacy cases. This Article is not meant to be disrespectful, but is meant to honestly critique opinions issued by the courts in Fourth Amendment cases sometimes in frank terms. The goal of this Article is to draw attention to framework, methodological, and legal process issues that have ledtoweakenedFourth Amendment privacyrights.Theoverall purpose of this Article is to understand and identify DTs and suggest guidelines that may prevent DTs from recurring.

1 Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971)

To make it clear, the concern is the Fourth Amendment and privacy. However, the point of this Article is to not address the results of the cases, whether they be the third-party doctrine, the legitimacy of the premises test, or any of the substantive aspects of the law. The point of this Article is to analyze DTs and how the courts got to their results with the hope of mitigating their effect in future cases. The DTs heavily influenced the outcomes of the cases, and reducing their presence may then lead to more positive outcomes for Fourth Amendment privacy. This Article may address fallacies of certain legal arguments and doctrines, but this will be to highlight the deficiencies of DTs.

Part I of this Article will outline the history of the Fourth Amendment andprivacy.Part IIwilldelveintoasamplingofjudicialdecisionsillustrating the DTs effects on the Fourth Amendment. Part III will then extract and organize the various types of DTs that have proven problematic in Fourth Amendment cases. Finally, Part IV will suggest framework and process guidelines to help diminish the presence of DTs in Fourth Amendment privacy matters.

I. BACKGROUND

The concept of privacy is pervasive in the Bill of Rights. The First Amendment’s freedoms of speech, assembly, and religion protect one’s privacy in conscience and beliefs while the Third Amendment protects the intrusion of the home from the government’s soldiers. The Fifth Amendment’s Due ProcessClauseenables a person toremain silent and keep certain information private to protect oneself from self-incrimination. Finally, and the one of interest in this Article, as stated in Katz v. United States, 2 the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion, but its protections go further . . . .”3 The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported byOath or affirmation, and particularlydescribing the place to be searched, and the persons or things to be seized.4

The main questions that arise from the privacy and Fourth Amendment cases revolve around the meanings of “papers” and “effects,” what is considered “unreasonable,” and warrant requirements. What is most important isthe Fourth Amendment’s privacyprotections role in maintaining

2 Katz v. United States, 389 U.S. 347 (1967).

3 Id. at 350.

4 U.S. CONST amend. IV.

a free and open society.5 The Fourth Amendment was introduced by James Madison in an environment where the British imposed general warrants, whichgavetheBritishforcestheabilitytogainaccesstothecolonists’homes and confidential information, and in essence created a state of insecurity and destroyed one’s ability to be left alone.6 Scholars and courts have deemed the heartoftheFourthAmendmenttobeprivacyprotection,7 andtherefore,when a person’s veil of confidentiality is pierced, the government has committed a search, as envisioned by the Fourth Amendment.8 The Founding Fathers understood that “perfect order” spawned from the Crown’s tyrannical laws and methods, and thus to establish a nation of liberties, a threshold had to be created that balanced the nation’s liberty and security interests.9 “[T]he Fourth Amendment embodies a value judgment by the Framers that prevents us from gradually trading ever-increasing amounts of freedom and privacy for additional security.”10 This balance of peace and security can be attained by placing the courts in the middle as guardians of justice at the onset of an executive investigation.11 If a warrant was issued pursuant to a court order and certain evidentiary prerequisites had been fulfilled, the government would be allowed to engage in search and seizures.12

A. Pre-Katz

Treatment of the Fourth Amendment has evolved over time. The two eras of Fourth Amendment cases prior to Katz are representative of two very different views of how far the Fourth Amendment could go in protecting

5 Marc Jonathan Blitz, The Fourth Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space, 63 AM U. L. REV 21, 50 (2013) (“Even critics of the Katz test . . . [argue] that [the Fourth Amendment’s] core function is to prevent government attacks on privacy and freedom that would be ‘inconsistent with the aims of a free and open society.’”); James J. Tomkovicz, Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures,72 MISS L.J.317, 341 (2002) (arguing that integral characteristics of basic liberties and thus a free society are maintaining confidentiality in one’s own private life and the ability to be left alone).

6 Tomkovicz, supra note 5, at 341–42.

7 Blitz, supra note 5, at 49.

8. Tomkovicz, supra note 5, at 341.

9 Id. at 325. Tomkovicz explained that perfect order can only be theoretically attained if liberties are vanquished, which is why the Founders understood the balance required a reasonableness threshold. Id. However, the Founders also understood the need for order and used another threshold “searches and seizures” as the outer limit of the Fourth Amendment. Id.

10 Bourgeois v. Peters, 387 F.3d 1303, 1312 (11th Cir. 2004).

11. Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy,75 S. CAL L. REV 1083, 1126 (2002) (“The profound insight of Madison and the Framers was that by separating government powers . . . and pitting them against each other, government could be controlled. . . . The warrant requirement reflects Madison’s philosophy of government power by inserting the judicial branch in the middle of the executive branch’s investigation process.”).

12 Tomkovicz, supra note 5, at 325.

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Americans and their privacy. Boyd v. United States13 was likely the first Fourth Amendment search case.14 In Boyd, the Supreme Court set a very strong line on the side of the individual, even asking an individual for his or her papers was deemed a search.15 The Supreme Court went on to further explain its reasoning:

Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and [a]ffects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.16

Subsequent cases began adding more definition to this ruling in Boyd.17 However, with Olmstead v. United States, the test for determining what defined a search would be drastically shifted, thus marking the next era in Fourth Amendment jurisprudence.18 In 1928, Olmstead began an era that wouldconsiderablynarrowFourthAmendment privacyprotectionsbytaking a more textualist view and intermingling a trespass doctrine into the analysis.19 In effect, the Fourth Amendment was interpreted as only prohibiting physical invasions of protected areas.20 Just as with Boyd, as the decades progressed, courts would chip away at Olmstead setting the stage for the next era in Fourth Amendment and privacy.

13. Boyd v. United States, 116 U.S. 616 (1886).

14 Orin S. Kerr, The Curious History of Fourth Amendment Searches, 2012 SUP CT REV 67, 77 (2012).

15. Boyd, 116 U.S. at 622.

16 Id. at 635.

17 Thomas K. Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 WAKE FOREST L. REV. 307, 314–16 (1998) (arguing post-Boyd cases focused on whether the individual or government had a superior property right, not allowing searches “solely for the purpose . to secure evidence to be used against [a person] in a proceeding”; additionally, it considered the categories of “seizable” goods (internal citations omitted)).

18 Olmstead v. United States, 277 U.S. 438 (1928)

19 Kerr, supra note 14, at 81–83 (“Olmstead is often viewed as the paradigmatic case equating trespass with searches.”; “Justice Brandeis criticized the majority for adopting an ‘unduly literal’ interpretation. . . . ” (internal citation omitted)).

20 See Clancy, supra note 17, at 317.

B. Katz & Reasonable Expectation of Privacy Era

Unlike the constricted privacy rights afforded U.S. persons during the Olmstead era, Katz served to strengthen and even expand the boundaries of privacy protections under the Fourth Amendment. The language of the case demonstrates this very clearly. The opinion made it very clear that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion, but its protections go further,” and it “protects people, not places,” which addressed the narrow physical trespass threshold of the Olmstead era.21 The Court made sure not to create bright-line physical delineations where this privacy right began and ended: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”22 What the Court created was a common-sense framework a continuumandspacetocreateappropriatezones forthecourtstoworkwith in an organic manner, instead of mechanically drawing lines around physical structures or objects. Amongst the places the Court said would be eligible for privacy protections were a business office, a friend’s apartment, and a taxicab,23 where obviously the taxicab driver’s ability to overhear the conversation would not eliminate a reasonable privacy interest.24 What this translated into for law enforcement was that “no greater invasion of privacy was permitted than was necessary under the circumstances.”25 The majority opinion emphasized the importance of the Fourth Amendment’s warrant requirement and having a neutral magistrate make that decision.26

Justice Harlan’s famous test only added to this analytical flexibility and, in essence, the Fourth Amendment’s ability to adapt and protect rights and remain free from legalistic and technical confines. The now famous reasonable expectation of privacy test is composed of two parts: (1) does the individual have a subjective privacy interest; and (2) is this (objective) interest something accepted by the greater society?27 The implementation of this test has led to varied results over the decades

21 Katz v. United States, 389 U.S. 347, 350–51 (1967).

22 Id. at 351–52 (citation omitted).

23. Id. at 352.

24 Catherine Hancock, Warrants for Wearing a Wire: Fourth Amendment Privacy and Justice Harlan’s Dissent in United States v. White, 79 MISS L.J. 35, 56–58 (2009) (stating that Harlan’s framework rejected the notion that “privacy can exist only in areas in which the speaker has a private interest in the premises, never in a public area”; a “temporarily private place” made in the open should allow for “freedom from intrusion”).

25. Katz, 389 U.S. at 355.

26 Id. at 356-57.

27 Id. at 361 (Harlan, J., concurring).

II. JUDICIAL DECISIONS ANALYSIS

I do not join the Court’s opinion, however, because it contains . . . broad dicta distorts the record and may prove confusing to courts that must apply this decision in the future.28 – Justice Brennan

Overtheyears,courtshavetackledarangeofFourthAmendmentsearch and seizure cases. The majority in Katz sought to augment and enhance privacy and give the courts the ability to adjust to the modern era by taking into account the ever-changing landscape of technology and the daily American’s life.

Unfortunately, despite Katz’s attempt to broaden the scope of privacy, many cases since have actually constricted and weakened Fourth Amendment privacy protections. For one reason or another, courts have delivered rulings that have deviated from Fourth Amendment and Katz principles. To be clear, a ruling against privacy in favor of security is not necessarily indicative of a deviation.29 Another point of emphasis is no one is stating law enforcement or intelligence agents should not be conducting appropriate investigations or surveillance. However, what is in question is when it takes place without a warrant and in the absence of a neutral magistrate.30

In this part, a sampling of Fourth Amendment cases will be analyzed and critiqued. Part of this process involves getting into the thoughts of the judges, which realistically is near impossible. So, in its place, the case opinion is utilized to make inferences about judges’ mindsets. Obviously, a court opinion is the end result and product of listening to adversarial arguments and contemplating the legal and policy issues. However, the opinion is a lens into the entirety of that process, including the judge’s thoughts prior to hearing the evidence, during the presentation, and maybe most importantly, the deliberation period before writing and issuing the official legal analysis. The opinion will serve as the collective reservoir of these stages, and any DTs discovered in the opinion will be seen as an indication of analogous thought processes that existed somewhere prior to that carefully crafted opinion. Highlighting DTs in the opinion points to DTs in the previous stages, thus allowing them to be neutralized if one becomes cognizant of its existence earlier in the judicial process.

The goals are to study the flow of the discussion, the privacy/security tone, and the rationales in each of the cases to see where, if at all, DTs played

28. United States v. Knotts, 460 U.S. 276, 288 (1983) (Brennan, J., concurring). 29 “Security” in this Article will encompass both law enforcement and intelligence agents. 30 Katz, 389 U.S. at 358–59.

a part in the outcome, and to highlight the positive examples. The point of this part is not to debate the substantive arguments, or even the outcome, except to expose DTs. Sometimes the legal arguments themselves are reflective of a DT, and in those instances, comments or counterarguments will be made to highlight the presence of a DT. Some may consider these DTs and associated commentaries as simply my disagreement with a legal argument. In some cases,that maybe debatable,but byin large aDT presents legal arguments that may for example be arbitrary,31 misleading, or based on incomplete information. For the sake of giving the reader a quick context of thecase,besideeachcase,theoutcomeisindicatedby“Pro-Privacy”or“ProSecurity” along with a brief description of the main issue.

A. United States v. White Pro-Security

(Deciding whether a secret agent equipped with an electronic recording and transmitting device a wire invaded the respondent’s reasonable expectation of privacy.)

1. Factual Background

Mr. White was prosecuted on various narcotics violations. Law enforcement used a secret agent who was wired.32 The wire recorded and transmitted the conversation.33 This evidence was key to his conviction.34

2. Judicial Effect on Privacy

This decision affirmed law enforcement’s unilateral use of a wire to electronically record and transmit private conversations without a court order. This was the first post-Katz third-party doctrine case. The crux of the holding was that Katz did not indicate “that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.”35 The use of the wire did not afford the defendant a legitimate expectation of privacy.36 The significant feature of this opinion is that it did not differentiate between ordinary human surveillance (eavesdropping) and

31. Eli R. Shindelman, Time for the Court to Become “Intimate” with Surveillance Technology, 52 B.C L. REV 1909, 1934 (2011) (describing the Supreme Court’s Fourth Amendment and “reasonable expectation of privacy” analysis has been inconsistent, arbitrary, and not reflecting the changing societal landscape).

32 United States v. White, 401 U.S. 745, 746 (1971).

33 Id. at 747.

34. Id.

35 Id. at 794 (Harlan, J., dissenting).

36 Id. at 752.

2018] FOURTH AMENDMENT DECISIONAL TRAPS 485

electronicallyaidedsurveillance.37 Thereisessentiallyno differencebetween plantingabuginahome,whichrequiresawarrant,andplantinganelectronic wire a bug on a person to gain the same informationelectronically.38 This recorded transmission is utilizing a different medium and capturing comprehensive, private conversations.

When the government audio records someone’s words, it does something far more invasive than simply listening to them. It creates a record that not only is “free of the possibility of error and oversight that inheres in human reporting,” but also allows officials to review a person’s life in far more detail than they could if they relied only on the fading memories of listeners.39

Yet the Court did not try to justify conflating the two or to submit any formof areasonable explanation. It choseto gloss over this difference.40 This absence of an explanation is an indication of a decisional trap.

If the law differentiated between criminals and the innocent, it would be easy to justify basing a decision on “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”41 However, since a case usually involves a potential wrongdoer and will affect the innocent and criminal alike, the law does not create this black and white line between criminals and the innocent.42 The Court is supposed to judge these privacy issues from the perspective of an innocent person regardless of who is on trial.43 This was a direct error by the judiciary. Because of this DT, the Court gave law enforcement the green light to conduct warrantless

37 Id. at 751.

38 Stephen E. Henderson, Nothing New Under the Sun? A Technologically Rational Doctrine of Fourth Amendment Search, 56 MERCER L. REV 507, 519–20 (2005); Tracey Maclin, Informants and the Fourth Amendment: A Reconsideration, 74 WASH U. L.Q. 573, 625 (1996) (“Such stilted reasoning is inevitable when the Court considers only the expectations of criminals.” The use of a “bug” requires satisfying certain legal standards, but despite the underlying reason and effect being analogous, such standards are not used when utilizing a wired individual. The “false friend” and the alleged criminal are narrowly focused on at the expense of innocents whose conversations are also captured).

39 Blitz, supra note 5, at 29–30 (footnotes omitted) (explaining that audio and video recording take “ephemeral” parts of life and imprint them into a permanent record one that can then be combed and eventually transformed into incriminating material); Tomkovicz, supra note 5, at 364–65, 372.

40. White, 401 U.S. at 785 (Harlan, J., dissenting).

41 Id. at 749.

42 Richard A. Epstein, Privacy and the Third Hand: Lessons from the Common Law of Reasonable Expectations, 24BERKELEY TECH. L.J. 1199, 1215 (2009) (explaining the dynamics of implicit and explicit social norms in a restaurant setting to illustrate the nuanced terrain of privacy expectations); Maclin, supra note 38, at 625.

43. Maclin, supra note 38, at 626 (mentioning the Court agreeing in a subsequent case (Florida v. Bostick) that the innocent person’s perspective must be judged when assessing the intrusiveness of law enforcement).

surveillance.44 It should be emphasized that the judges’ disagreement stemmed from whether a court-ordered warrant is necessary to conduct this type of surveillance and not the surveillance itself. The officers could have easily procured a warrant for this surveillance.45

Understandably, the Court tried to create a bright-line rule to favor security, but in doing so created a landscape of distrust anyone could now be a wired police informant something the Fourth Amendment was created to prohibit.46 By passing over the difference between ordinary human and electronic surveillance, the plurality’s holding contains privacy concerns that are interlaced with First Amendment free speech and association implications, and it all rests on the discretion of a police officer.47 The majority again failed to properly address these valid issues.

Structurally, from the very beginning of the case, the tone was very security centric.48 The Court superficially discussed the Fourth Amendment despite its centrality to the case; swiftly dispensing with privacy and glossing over important constitutional issues.49 As the dissent pointed out, “[t]he issue in this case is clouded and concealed by the very discussion of it in legalistic terms.”50

3. Summary of DT Issues

The main deficiency of the plurality was the lack of substantive explanationsonvarioustopics,inparticularthetechnologyandconstitutional ones. Each of these topics housed complex issues. The absence of these explanations undercut the majority’s analysis. Second, the majority committedaframeworkerrorbycreatingadifferentstandardfortheinnocent and the criminal. Third, the Court clearly avoided privacy and was very security centric in its tone. The Fourth Amendment privacy issue was central to the case and warranted accompanying explanations, even in a case that did not favor privacy.

44. White, 401 U.S. at 761–62 (Brennan, J., dissenting).

45 Id. at 760 (Brennan, J., dissenting)

46 Epstein, supra note 42, at 1206; Maclin, supra note 38, at 622.

47. White, 401 U.S. at 757 (Douglas, J., dissenting); id. at 762–64 (Brennan, J., dissenting); see also Donald L. Doernberg, “Can You Hear Me Now?”: Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence, 39 IND L. REV. 253, 284–286 (2006) (describing the doctor-patient, husband-wife, clergy-penitent, and lawyer-client relationships as illustrative examples).

48 White, 401 U.S. at 746.

49. See id.; see also Maclin, supra note 38, at 620–23 (stating that the Court offered a “meaningless reference to Katz’s ‘expectation of privacy’ model”).

50 White, 401 U.S. at 756 (Douglas, J., dissenting).

B. United States v. Miller Pro-Security

(Whether the government’s subpoena of financial bank records was a search)

1. Factual Background

Therespondent was originallyconvicted for an unregistered still and for failing to pay taxes.51 Pursuant to the Bank Secrecy Act, the banks were mandated to keep financial records, which the government used as evidence against the respondent.52 The government obtained the bank records by way of a subpoena and not a court ordered warrant.53

2. Judicial Effect on Privacy

The business record third-party doctrine was legitimized in this case. The third-party doctrine may have been specifically tailored; however, it has been widely used to eliminate the reasonable expectation of privacy in numerous forums and has resulted in various privacy intrusions.

In this case, the Court concluded that bank records were not private information because the customer voluntarily kept his financial information at the bank a third party.54 Before coming to this conclusion, the Court reviewed the facts including the Bank Secrecy Act of 1970’s mandate of maintaining certain bank records.55 Instead of a judicial order, the records were given to the officers by way of a subpoena.56 The Court found there was no constitutionally protected interest in the records.57 Wayne R. LaFave, in his much respected multivolume treatise on the Fourth Amendment stated, “[t]he result reached in Miller is dead wrong, and the Court’s woefully inadequate reasoningdoes great violence to the theoryof Fourth Amendment protection the Court had developed in Katz.”58 Even though this is possibly the most criticized Fourth Amendment case, for the sake of emphasis, this analysis is not to argue the third-party doctrine but to emphasize the errors in how it reached its decision.59

51 United States v. Miller, 425 U.S. 435, 436 (1976).

52 Id.

53. Id.

54 Id. at 443.

55 Id.; The Bank Secrecy Act, 12 U.S.C. § 1829b(d) (2018).

56. Miller, 425 U.S. at 437–38.

57 Id. at 440.

58 WAYNE R. LAFAVE, SEARCH AND SEIZURE: ATREATISE ON THE FOURTH AMENDMENT § 2.7(c) (5th ed. 2012) (footnotes omitted).

59 Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH L. REV 561, 563 n.5 (2009) (providing a non-exhaustive list of several articles criticizing the third-party doctrine).

First, the Court quickly sidestepped the Fourth Amendment and Katz in reaching its conclusion 60 The Court put forth the notion that a person’s private and personal financial information lost the characteristics of private and personal simply because the bank made a copy of it,61 which it did only because of the Bank Secrecy Act and because Miller “had no choice but to surrender the information to the bank in order to transact business there.”62 Despite the fact that it contains all of the same private data, its transformation into “business records” made him lose any connection to the data, and therefore no legitimate expectation of privacy existed.63 As the dissent pointed out even in 1976 the level of private information that could be gleaned from bank records is staggering and intrudes into multiple intimate areas such as, “a person’s activities, associations, and beliefs.”64 This was a vast oversimplification by the Court, and it failed to address any of the privacy issues.

Next, the Court used a framework that was overtaken by Katz. They referred to Hoffa v. United States, which based its decision on a “constitutionally protected area,”65 in the Olmstead era. Katz had specifically stated that the Fourth Amendment “protected people, not places” and privacy protections went beyond these protected areas.66 Additionally, Hoffa was a totally different set of circumstances and privacy interests.67 The Court reconstricted the Fourth Amendment to a prior judicial interpretation and used that framework to decide that privacy did not exist. According to LaFave, the Katz subjective and objective reasonable expectation test should have both been in the affirmative in this situation.68 The Court came to the conclusion that a person’s reasonable expectation of privacy was eliminated because of his voluntary relationship with the bank.69 This argument was particularly simplistic because it avoided the ubiquitous presence of banks in daily lives’ of Americans, which makes it virtually “impossible to participate in the economic life of contemporary society without a bank account.”70 Even if people are informed, they have little choice but to hand over information to third parties. Life in the Information Age depends upon sharing information with a host of third party entities including phone

60 Miller, 425 U.S. at 439–40.

61 Id. at 442.

62. Henderson, supra note 38, at 520.

63 Miller, 425 U.S. at 440.

64 Id. at 453 (Brennan, J., dissenting).

65. Hoffa v. United States, 385 U.S. 293, 301 (1966).

66 Katz v. United States, 389 U.S. 347, 350–51 (1967).

67 LAFAVE, supra note 58, § 2.7(c).

68. Id. at 975.

69 Miller, 425 U.S. at 443–44.

70 Id. at 451 (Brennan, J., dissenting).

companies, ISPs, cable companies, merchants, financial entities, medical and insurance providers, and so on. The Supreme Court in Smith and Miller has suggested that if people want to protect privacy, they should not share their information with third parties. However, refraining from doing so may result in people living as Information Age hermits, without credit cards, banks, Internet service, phones and television.71

The banks themselves gave testimony that directly contradicted the Court’s opinion. One of the bank’s main commodities that it sells is confidentiality.72 This is common sense. The people who entrusted their money and financial information did so with the understanding that it would be protected and kept confidential not simply fall into the possession of the government.73 In part, this may derive from the mistaken notion that privacy is solely synonymous with secrecy, which is a constriction of the meaning of privacy.

The dissent pointed out several, procedural, contextual, and constitutionalargumentsthat werenever addressedbythemajority.Thiscase involved sensitive financial information and records of personal associations as well as destabilizing a key feature of the banking business confidentiality. Yet the Court failed to address these in any genuine manner.

3. Summary of DT Issues

Despite the entire case’s various complexities, overall, the Court did not do anadequatejob of explaininghow it arrived at its decisions. Additionally, the Court used contradictory rationales to arrive at some of its conclusions. Third, the Court’s opinion was not reflective of societal expectations either the subjective or objective as was evidenced by the various testimonies. Fourth, the Court used a stricter definition of privacy in its analysis. Finally, iteither ignoredorfailedtoaddressthereal-worldimplicationsoftheprivacy information involved, and throughout the opinion, the focus was never on the respondent.

C. California v. Ciraolo Pro-Security

(Whether aerial surveillance of a police helicopter over the fenced in backyard intruded on the reasonable expectation of privacy of the home owner)

71 Solove, supra note 11, at 1158.

72. Miller, 425 U.S. at 449 (Brennan, J., dissenting); Henderson, supra note 38, at 520.

73 Miller, 425 U.S. at 448–49 (Brennan, J., dissenting) (citing Burrows v. Superior Court, 13 Cal. 3d 238 (1974)); LAFAVE, supra note 58, § 2.7(c), at 974–76.

1. Factual Background

After receiving an anonymous tip about marijuana being grown in the respondent’s backyard, law enforcement sent an airplane to perform aerial surveillance on the fenced in backyard, which was part of the curtilage of the house.74 The airplane flew at 1,000 feet where law enforcement officers identified the marijuana.75 Thereafter, the police obtained a warrant, arrested the respondent, and seized the marijuana.76

2. Judicial Effect on Privacy

The curtilage especially the backyard has been one of the more highly protected areas under the Fourth Amendment. The curtilage is “consideredpart of [the] home itself for Fourth Amendment purposes.”77 The Court’sdecisionremovedtheprivacyprotectionsofthissanctifiedareaunder these circumstances, impacted other similar cases, drew no distinction between ordinary human and technologically aided surveillance, and expanded the plain view doctrine.

Once law enforcement received a tip about marijuana growing in the respondent’s backyard, they specifically sent an airplane for surveillance purposes.78 The Court skipped over the Fourth Amendment, but did engage in a discussion of Katz 79 The Court admitted the respondent had taken the proper precautions to prove that he had a subjective reasonable expectation of privacy, but did not have an objective one. This privacy interest was downplayed because other matters trumped it.80 The Court trumped the privacy expectation by manufacturing scenarios that broadened the concept of what was publicly viewable, and therefore such things should not be shielded“fromthe eyes of acitizen or a policeman.”81 One such scenario was the possibility of a person standing on a two level bus who could then see into the respondent’s backyard.82 This was a false argument because people have always had the ability to climb trees or climb over fences to peer into people’sbackyards,andyet,thecurtilage’sprivacyprotectionhadneverbeen infringed upon using the reasoning the Court did in this case. The respondent had taken all proper precautions to have what had been a strongly protected

74. California v. Ciraolo, 476 U.S. 207, 209 (1986).

75 Id.

76 Id. at 209–10.

77. Oliver v. United States, 466 U.S. 170, 180 (1984).

78 Ciraolo, 476 U.S. at 209.

79 Id. at 211.

80. Id. at 211.

81 Id.

82 Id.

privacy right, but for the Court that day, it was not enough.83 This method of circumventingfirmlyestablishedprivacysafeguardcontinuedfurtherintothe opinion.

The Court recognized the importance of the curtilage.84 Then the opinion went intotheplainview doctrine again and how law enforcement has a right to view publicly visible areas. This was where the Court was setting the stage to expand it to aerial surveillance.85 It manufactured the concept of a publicly navigable space to negate the respondent’s reasonable expectation of privacy.86 This would have been a valid argument had it actually existed, but the error was in stretching the definition of public navigable space. The aerial surveillance was purposeful, and there was no general public practice of flying at low heights and simultaneously gazing into neighbors’ yards.87 The Court also made no effort to include a sense-enhancing or technological feature the helicopter to their search analysis either.88 The Court seemed to have an end and reached it.89

The Court addressed Justice Harlan’s Katz warning of future developments, but it found a way to make the aerial surveillance inapplicable to this warning and severely broadened Justice Harlan’s statement about “plain view” observations, which this was obviously not.90 It, in effect, severely narrowed the privacy interest of the home and simultaneously broadened the scope of the plain view doctrine.91 The majority, as reflected in the dissent, avoided the technological advancements issue,92 weakened the

83 William C. Heffernan, Fourth Amendment Privacy Interests, 92 J. CRIM L. & CRIMINOLOGY 1, 90 (2002) (ignoring a “Personal and Confidential” label to hold a letter up to a light to read it and cupping ears to a private conference once the doors shut in the same manner as the Ciraolo case “[t]hey involve nothing more than an effort, undertaken by people in places they are lawfully entitled to occupy, to sidestep unmistakable signals indicating an interest in privacy”).

84 Ciraolo, 476 U.S. at 213.

85 Id. at 213-14.

86 Id.; Richard G. Wilkins, Defining the “Reasonable Expectation of Privacy”: An Emerging Tripartite Analysis, 40 VAND L. REV. 1077, 1115–16 (1987) (displaying again the Court’s narrow focus on intrusion rather than dealing directly with the central question of the subjective expectation of privacy).

87 Tomkovicz, supra note 5,at 416 (explaining that though the public is exposed technically to matters on the ground from above flights and such, this exposure leads to no more than glances andseldomif ever topiercetheprivatepractices andbehaviors of residents inneighborhoods below. The lack of cover from flights above reflects the trust in privacy from these potentially casual aerial passersby); see generally QuinM.Sorenson, Losing a Plain View of Katz: The Loss of a Reasonable Expectation of Privacy Under the Readily Available Standard, 107 DICK L. REV 179, 205 (2002).

88 Ciraolo, 476 U.S. at 218–19 (Powell, J., dissenting); Blitz, supra note 5, at 45; see also Wilkins, supra note 86, at 1106-07.

89 David E. Steinberg, Making Sense of Sense-Enhanced Searches, 74 MINN L. REV 563, 600 (1990) (arguing the Court assumed its conclusion).

90. Ciraolo, 476 U.S. at 214–15.

91 Id. at 223

92 Id. at 218.

24 (Powell, J., dissenting).

constitutional protections of the home,93 and increased the probability of arbitrary intrusions into the home.94

3. Summary of DT Issues

The Court created false constructs with no real-world basis to deconstruct oneof thestronger constitutionallyprotected areas.Thecourt did not account for or explain why there was no difference between the plain view and view-enhanced by technology.

D. Rakas v. Illinois Pro-Security

(Did car passengers who did not own the vehicle have a reasonable expectation of privacy in their possessions stored in the car?)

1. Factual Background

Reports of a clothing store robbery led police to the vehicle described.95 Law enforcement stopped the suspects, and the suspects were ordered to leave the car.96 Without a court order or warrant, police then searched the interior of the car and found gun shells in a locked glove compartment and a shotgun under the front passenger seat.97 The petitioners made a motion to suppress the evidence based on a reasonable expectation of privacy.98

2. Judicial Effect on Privacy

Rakas furthered incursions into automobile privacy rights and reverted privacy interests into a property framework. By eliminating the “legitimately on premises” test, it created a great stress on privacy rights if a person has no possessory interests in the property.

Petitioners’ possessions in a car were searched pursuant to reports of an armed robbery without a warrant, and they were subsequently convicted.99 Petitioners argued their reasonable expectation of privacy was violated and thus the evidence should have been suppressed.100 After establishing that the Fourth Amendment was the basis for the petitioners’ standing argument, the Court eliminated the “legitimately on premises” test, deeming it too broad a

93 Id. at 220.

94 Id. at 217.

95. Rakas v. Illinois, 439 U.S. 128, 130 (1978).

96 Id.

97 Id.

98. Id.

99 Id. at 129–30.

100 Id. at 130.

tool to use to claim rights of privacy.101 “Legitimately on premises” means one has a legitimate expectation of privacy by being on the premises and therefore that person has a Fourth Amendment claim.102 From this point onward, although it was central to the case, privacy rights played little in the majority’s discussion, and the Court held that the petitioners did not have their rights violated and upheld the conviction.103

By removing the “legitimately on premises” test, the majority eliminated the petitioners’ claim, and in so doing, created a constraining and narrow possessory interest criterion.104 The Court deviated from the controlling cases on the matter,105 which in and of itself is not a negative action. Changing the scheme is necessary depending on changing circumstances106 as was done in Katz. This was not the case here. As pointed out by the dissent, just a few years earlier, the Court unanimously agreed that presence at the search and seizure was sufficient for standing,107 and the majority did little to substantiate its removal. By introducing this possessory interest, the Court reversed the very basis of Katz: “[t]he Court today holds that the Fourth Amendment protects property, not people.”108 Therefore, having the status of non-possessory passenger in a car has now removed any privacy interest in one’s possessions in the vehicle and effectively returned this area of Fourth Amendment jurisprudence to the Olmstead era. “[Olmstead] remains a relic of the past, a long discredited decision. It symbolizes the Court’s lack of responsiveness to new technology, unwarranted formalism in its constitutional interpretation, and failure to see the larger purposes of the Fourth Amendment.”109

The removal of the test epitomizes how a court can lose the forest for the trees and create contradictory law. How can one have a right to privacy in a public phone booth110 and a locker that he does not own,111 yet lose a

101 Id. at 141–142.

102 Jones v. United States, 362 U.S. 257, 267 (1960).

103 Rakas, 439 U.S. at 150.

104. Id. at 142–43.

105 Id. at 157 (White, J., dissenting).

106 See Shindelman, supra note 31, at 1935 (discussing how the framers could never have predicted the types of technology used by today’s law enforcement, and that such changing circumstances should be incorporated into expanding zones of privacy); see also United States v. Knotts, 460 U.S. 276, 283–84 (1983) (recognizing how twenty-four hour surveillance was impossible at the time the case was decided, but understood technological advances would someday violate reasonable expectations of privacy).

107 Rakas, 439 U.S. at 158 (White, J., dissenting) (discussing the unanimous decision in the Jones case).

108 Id. at 156 (White, J., dissenting); see Mary I. Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 CAL L. REV 1593, 1629–30 (1987).

109. Solove, supra note 11, at 1086.

110 Katz, 389 U.S. 347, 352 (1967).

111 See United States v. Chadwick, 433 U.S. 1, 11 (1977).

reasonable expectation of privacy when getting in a car set off from the outside, placing possessions in close proximity to oneself, and further securing it in the glove compartment or under a seat? It is not a stretch by any means that most would feel a sense of detachment and security from the outside world when they get into a car.112 What then is the status of their possessions in a theft? Does a taxicab passenger lose possessory interest in her luggage by placing it in the trunk of the taxicab?113 This decision has opened the door to severe privacy issues and ambiguity: Of necessity, we sometimes ride with friends, acquaintances or family members, borrow the vehicles of those individuals, or avail ourselves of public transportation. To suggest that we can avoid taking our “secrets” along in those situations is ludicrous, for the reasons we travel in society necessitate carrying along parts of our lives and the information inherent therein. If our freedom to move about is conditioned on not bearing our belongings, that freedom loses much substance. Uncontrolled official access to the information passengers carry with them in vehicles they do not own and to which they cannot restrict access diminishes opportunities for personal physical freedom.114

TheCourt’soriginal premisewasthat the “legitimatelyonthepremises” test was too unwieldy, but the Court sought no middle ground and left no room for any sort of familial or relationship sharing interest.115 Thus, it createdanoppressiveandunclear criterioninitsplace.TheCourt,inessence, created a new test with no guidance on how to utilize it.

3. Summary of DT Issues

The Court made an arbitrary decision and discarded a legitimate test, and if the change in framework was valid, it provided little substance to supportthe change. Instead,it created contradictionsinthe privacyrightsand created confusion by also leaving little guidance on how it should apply to real life situations. Its holding evidenced that the Court was disconnected from society’s reasonable expectation of privacy.

112.

113. Katz, 389 U.S. at 352 (noting that one would not lose a reasonable expectation of privacy in a taxicab).

114 James J. Tomkovicz, Beyond Secrecy for Secrecy’s Sake: Toward an Expanded Vision of the Fourth Amendment Privacy Province, 36 HASTINGS L.J. 645, 733–34 (1985) (footnotes omitted).

115 See Coombs, supra note 108, at 1631–32.

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Coombs, supra note 108, at 1617–1618 (discussing commercial relationships and legal ownership and the passive, non-verbal negotiation that establishes a reasonable expectation of privacy through norms practiced daily).

E. United States v. Place Pro-Security

(Does a dog sniffing for drugs in an airport infringe on the reasonable expectation of privacy?)

1. Factual Background

Upon flying from Miami to New York, the respondent’s behavior made Miami law enforcement officers suspicious.116 He consented to a luggage search,buttheofficerschosenottosearchit becausehisflight wasleaving.117 The officers called ahead to New York law enforcement who, upon speaking to the respondent, also felt the respondent acted suspiciously.118 The respondent refused to consent to a luggage search.119 The police confiscated his luggage for further inspection, but the respondent did not accompany the luggage.120 The police subjected the luggage to a sniff test performed by a trained narcotics detection dog, which indicated the presence of narcotics.121 The officer retained the luggage from Friday until Monday to get a warrant to search it.122 On Monday, the officers found cocaine in the luggage.123

2. Judicial Effect on Privacy

This case expanded the range of the Terry stop beyond its original purpose and allowedthesearch of propertyon lessthanprobablecause. Also, the Court allowed a dog to sniff the luggage, and therefore, this search was conducted by a sense-enhancing technique based only on a reasonable suspicion.124

A man suspected of carrying narcotics was stopped in an airport after agents received information from law enforcement in the city of the respondent’s departure.125 Based on the principles of a Terry stop,126 law enforcement used a reasonable articulable suspicion (“RAS”) standard to confiscate the respondent’s luggage and subject it to a trained drug-sniffing dog.127 From the start, the majority was sensitive to Fourth Amendment and

116. United States v. Place, 462 U.S. 696, 698 (1983).

117 Id.

118 Id.

119. Id. at 699.

120 Id. 121 Id. 122. Id.

123 Id.

124 See id. at 702, 707.

125. Id. at 698–99.

126 Terry v. Ohio, 392 U.S. 1, 30 (1968).

127 See Place, 462 U.S. at 699.

privacy concerns.128 It recited the text of the Fourth Amendment, detailed individual privacy expectations, and recognized the limited authority of the Terry stop.129 The majority spoke of needing to balance interests and again emphasizedprivacy.130 TheCourtthenoutlinedsomeofthesecurityconcerns and gave analogous examples to support its position.131 It justified the use of the drug-sniffing dog because of the difficulty of stopping drug trafficking, and only allowed this “minimally intrusive” practice under these specific circumstances.132 In the end, though, the Court held that the nature of the detention of the luggage was unreasonable, and therefore, the evidence was inadmissible.133 This case has been used to justify the use of a drug-sniffing dog and a new RAS standard at least under similar circumstances. The concurring and dissenting opinions put forth counterarguments that I personally agree with more because I would have preferred a stronger Fourth Amendment privacy ruling, but again, the point of this Article is not the outcome. It is how the Court arrived at its decision. This case as a whole didnot sufferfromanymajordeficienciesthatareprevalent intheother cases summarized above. The Court framed the case in a Fourth Amendment privacy framework, the arguments were reasonable, and the Court gave a thoughtful explanation that respected the context of the case.

3. Summary of DT Issues

No major DTs present. A potential concern is the lack of more concrete guidelines for using the sense-enhancing dog.

F. Kyllo v. United States Pro-Privacy

(Infrared Electronic Surveillance Device Used on the Home)

1. Factual Background

After using a thermal imaging device on the petitioner’s home, the police used the evidence to obtain a warrant to search for marijuana.134 The device was aimed at the private home from a public location outside of the home.135

128 Id. at 700–01.

129 Id. at 701.

130. Id. at 703.

131 Id.

132 Id. at 709.

133. Id. at 710.

134 Kyllo v. United States, 533 U.S. 27, 29–30 (2001).

135 Id.

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2. Judicial Effect on Privacy

The Court maintained the strong privacy protections of the home, and it created certain boundaries for enhanced surveillance methods.136 However, the Court created and utilized an ambiguous “general public use” factor in its assessment.137

After the facts were delivered, the majority gave an in-depth Fourth Amendment privacy rights description.138 The Court spoke of the home’s sanctified privacy protections, but also the exceptions to the protection.139 The Court also pointed out the modern era question of technology’s role in this determination.140 “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area . . . constitutes a search.’”141 As far as the home was concerned with regard to technology, the court drew a line.142 Partially.

Of note, though, was the Court’s insertion of the “general public use” factor.143 The case ended well for privacy rights, but this particular factor is an example of a DT. It has been left open for arbitrary usage for or against privacy, and can potentially be utilized as an over simplistic method to approve of certain electronic surveillance devices.144 For example, if x-ray glasses that could see through walls became prevalent in society, where would the “general public use” boundary draw the privacy line? Would it make the mistake that privacy disappears once something is seen or not secret?145 This could contradict the Constitution if it is not reined in

142. Jeffrey W. Childers, Kyllo v. United States: A Temporary Reprieve from TechnologyEnhanced Surveillance of the Home,81N.C.L.REV 728, 757–59 (2003) (explaining that the Court bolstered the sanctity of the home by drawing a line of protection at the door to the home. However, Kyllo also represented a regression by forgetting that Katz protected people while Kyllo focused on place. This case left the question open with regard to electronic surveillance in other places because the Court failed to account for individual privacyregardless of place); see also Sorenson, supra note 87, at 192–193 (explaining the sanctity of the home and the protection afforded to activities occurring within the home that are concealed from public view).

143 Kyllo, 533 U.S. at 40.

144. Id. at 47 (Stevens, J., dissenting); see also Childers, supra note 142, at 759–61 (“Thus, although Kyllo purports to enhance Fourth Amendment protection against technology-enhanced surveillance, it has much in common with the Katz progeny that served to diminish such protection” due to the predictable decreasing cost and pervasiveness of technology).

145 See Stephen E. Henderson, Expectations of Privacy in Social Media,31MISS C. L. REV 227, 233 (2012); see also Tomkovicz, supra note 5, at 403–04 (arguing potential or actual

appropriately. Technologysuch as x-rayglasses would pose alarge quandary with little guidance on how the “general public use” factor would work. The dissent showed how they were ready to open up private zones of the home to law enforcement,146 so it is not unreasonable to think certain Justices would eliminate privacy protections with something akin to x-ray glasses.

The dissent’s arguments are useful in this study of types of DTs. The dissent suffered from an overly mechanical analysis, deconstructed the privacy of the home, and expanded the zone of what is publicly observable to the police.147 The dissenting opinion stated the majority did not practice “judicial restraint,” but the dissent’s arguments of “off the wall” surveillance was more reflective of a novel concept that deviated from the Fourth Amendment especially since the “home” is explicitly mentioned in the text of the Fourth Amendment.148 The dissent attempted to create a very technical avenue for getting around the privacy protections.

The dissent felt the majority was overreacting to the potential for technological advancement.149 To be fair, people in 2001 did not experience the rapidity of technological change as is prevalent today, but still, the case was decided in a time when the internet was in full use, cell phones were ubiquitous, and several other technologies were emerging. One of the more dangerousaspectsofthedissent’sopinionwasitsattempttoequateelectronic equipment readings of the home with the publicly visible domain exposed to law enforcement, which would have eventually crippled virtually the entirety of the Fourth Amendment’s protection of the home.150 Today we know the level and pace of technologies advancement, and had this opinion been the majority, with technology’s reach today, there would remain little that law enforcement would not have to “avert their senses or their equipment” from.151

3. Summary of DT Issues

The majority opinion created a test with unclear boundaries. Additionally, the dissent’s overly mechanical and technical test had it been the majority opinion created more complications than clarity in the privacy analysis, and its conflation of ordinary human and enhanced surveillance methods would have eviscerated the Fourth Amendment itself. Lastly, both

availability of means does not negate confidentiality; this can also be linked back to the example given in Katz where a conversation in a taxi does not eliminate a reasonable expectation of privacy).

146. Kyllo, 533 U.S. at 45 (Stevens, J., dissenting).

147 Id. at 35, 44–45.

148 Id. at 41–43, 51.

149. Id. at 41.

150 Id. at 45.

151 Id.

the majority and dissent narrowed the idea of privacy to that of being unseen and secret.

G. Florida v. Jardines Pro-Privacy

(Law enforcement brought a narcotics-sniffing dog up to the front door of a house, and then used that evidence to get a search warrant)

1. Factual Background

After receiving an anonymous tip that the respondent was growing marijuana in his home, the police sent an officer and drug-sniffing dog.152 The dog was brought up to the front porch of the home, and after the dog indicated drugs were on the premises, the officer used this as evidence to get a warrant to search the home.153

2. Judicial Effect on Privacy

Jardines further protectedthe home fromsensoryenhancedsurveillance privacy intrusions. Additionally, the concurrence utilized a direct privacy argument to fortify the trespass arguments used by the majority.154 The sequence of the majority opinion’s argument was fairly straightforward. The majority did a faithful job of reciting individual protections under the Fourth Amendment and then discussed exceptions to the Fourth Amendment.155 The Court detailed the curtilage and the protections it is afforded, but accordingly distinguished cases where the curtilage privacy protections were not upheld.156 The dissent argued the police officer’s behavior was no different than normal customary practice (i.e., that of visitors, mailman).157 The majority rebutted this by drawing a distinction between law enforcement intent and behavior and that of general society what the police officer did was not routine behavior.158 Finally, the Court held that the combination of property trespass and reasonable expectation of privacy rights emphasized an individual’s fortified protections in the home and curtilage.159 The concurrence was of particular importance because it focused the justification solely on privacy rights and gave a common-sense illustration of how the dissent’s efforts to justify law

152 Florida v. Jardines, 569 U.S. 1, 3–4 (2013).

153 Id. at 4.

154. Id. at 12–13 (Kagan, J., concurring).

155 Id. at 6

156 Id. at 6–7.

157. Id. at 16 (Alito, J., dissenting).

158 Id. at 7–10.

159 Id. at 6–7.

enforcement’s actions did not realistically make sense.160 It repeated the sense-enhancing distinction given in Kyllo. 161

The dissent stated that since dogs have been around forever, a drugsniffing dog’s presence on the porch of a house should not be viewed as anything but routine behavior.162 Aside from the disconnected analogy, I doubt most of the Justices themselves would have been okay with this same scenario and not felt a privacy invasion had it happened to them personally. It was a legal tool divorced from reality. Much like the dissent in Kyllo, the dissent despite Fourth Amendment protections was content to give the public and law enforcement greater access to the home while simultaneously narrowing the expanse of privacy.163

3. Summary of DT Issues

The dissent used contrived and unrealistic scenarios and framings as legal tools to reach its end. The dissent’s scenarios would have also been in direct contradiction to the Constitution’s protection of the home.

III. DECISIONAL TRAPS

The cases analyzed in the last section were not comprehensive by any means, but they illustrated many of the decisional traps that have arisen in privacy cases. As indicatedabove, some of the cases that went against Fourth Amendment protections were argued reasonably and were justified. However, a good number of them exemplified how the weakened Fourth Amendment privacy protections were a direct result of not necessarily superior legal analysis, but from short circuits decisional traps in the process. Below is a list of DTs extracted from these cases. This list is by no means perfect, nor is it an exhaustive list.

 Misaligned Foundational Value & Starting Point Regardless of the identity of the party opposite the government, the Fourth Amendment and privacy is the overriding principle that should overlay the case.164 Despite obvious law enforcement or intelligence considerations, all individuals have constitutional protections even if theyare acriminal.165 EventhoughprivacyisaConstitutionalvalue,courtshavefailedtoflesh out the Fourth Amendment privacy protections despite it being the

160 Id. at 12–16 (Kagan, J., concurring).

161. Id. at 14

162 Id. at 16

15.

17 (Alito, J., dissenting).

163 See Elizabeth J. Chrisp, Paws off My Porch: Sniffing out Florida v. Jardines’ Effect on Drug Dogs and Homes, 59 S.D. L. REV. 109, 111 (2014).

164 See Maclin, supra note 38, at 625.

165 See id.

central aspect of the case. The tone of some cases immediately shifts to security centric concerns and swiftly dispenses with the Fourth Amendment and sometimes with little mention. Similarly, some of the Fourth Amendment cases have incorrectly placed the burden of proof of one’s privacy claim on the party whose privacy has been intruded upon. The government has the burden of protecting privacy not the citizens of a free society.166

 Negative Assumptions & Manufactured Scenarios Some courts have taken a negative behavior of some and applied it to society as a whole. Human behavior is variable, but assuming that negative behavior is the societal norm of reasonable people is reflective of reality. In our country, where we assume most Americans are good, one is innocent until proven guilty. Hence, when rulings, especially from the Supreme Court, create binding precedent, it is dangerous to make such negative assumptions and conclusions because it lends itself to creating a suspicious and apprehensive society.167 Another variant of this category is when sometimes the courts occasionallycreate hypothetical scenarios that are inapposite to reality and manufacture scenarios as a tool to get to an end.168

 Oversimplification of Context Closely related, courts can render a deficient decision by not engaging in a fuller analysis of the context and circumstances surrounding a situation. Underlying courts utilize these simplified assumptions for the sake of clarity and ease. However, these situations generally require detailed analysis and expert legal judgment. Some cases may be complicated, but the biggest indictment against this excuse is the dissent’s ability to conduct a detailed assessment in the same case. When courts have been reluctant to engage in this deeper discussion and analysis, it has been detrimental to justice especially in light of present day technology and informational capabilities today.169

(United States v. Miller)

 Mechanical & Unclear Tests – The courts can sometimes lose the forest for the trees by getting entangled in overly mechanical and technical

166 United States v. White, 401 U.S. 745, 793 (1971) (Marshall, J., dissenting); see, e.g., United States v. Miller, 425 U.S. 435 (1976).

167. See Blitz, supra note 5, at 54 (describing how security is also defined as protection from an oppressive state, which will result in stifling downstream effects for law-abiding Americans living under such perceived circumstances); see e.g., United States v. White, 401 U.S. 745 (1971).

168. See e.g., California v. Ciraolo, 476 U.S. 207 (1986).

169 See Shindelman, supra note 31, at 1934 (explaining how the Supreme Court has created ambiguity in the meaning of “reasonable” and made arbitrary rulings when applying Katz to a modern technological society); Tomkovicz, supra note 5, at 366–67 (stating that the Supreme Court’s logic in applying the Fourth Amendment to modern surveillance equipment is flawed); see, e.g., Miller, 425 U.S. 435.

arguments and thereby lose sight of the bigger picture. Additionally, sometimes courts leave a test or set of factors open to abuse by making them too ambiguous.170

 Inconsistent & Unnecessary Contradictions Sometimes the courts will be inconsistent or contradict themselves.171 This can manifest in a number of ways such as applying different logic to analogous fact patterns or an arbitrary contradiction of precedent.172

 Narrowly Framing Privacy There is a tendency to equate privacy solely with secrecy.173 Though there is a relationship between the two, secrecy does not encompass the entirety of privacy. Privacy encompasses several characteristics like secrecy, confidentiality, and disclosure to unwanted parties; in other words, the ability to control what someone knows about you. Some courts simply assume since informationis nolonger secret (e.g. public view),someone’sreasonable expectation of privacy has evaporated. As Katz pointed out, even in the public, a person’s reasonable expectation of privacy is still potentially intact.174 Additionally, this manifests when it is assumed that privacy must be sacrificed as technology advances for the sake of security. This has not been proven and seems to be a mantra without any basis.175 Technology and safety can be employed to safeguard both security and privacy.176

170 See, e.g., Kyllo v. United States, 533 U.S. 27 (2001).

171 See Orin S. Kerr, Four Models of Fourth Amendment Protection, 60STAN L. REV 503, 505 (2007)(statingthattheCourt’s inabilitytodevelop a consistent testandframework todetermine what “reasonable expectation of privacy” means has resulted in an “unstable,” chaotic, and confounding accumulation of cases where even legal scholars, treatises, and casebooks are unable to navigate the subject with any certainty).

172. See e.g., Rakas v. Illinois, 439 U.S. 128 (1978).

173 See Solove, supra note 11, at 1152–55 (explaining how constructing an effective method to identify what is “private” can be difficult when narrowly focusing only on whom information has been shared with (“third-party”), what is “intimate” or “secret,” status of facts, or types of information without also looking at the relationships and context of the situation).

174 See United States v. Chadwick, 433 U.S. 1, 7, 11 (1977).

175. Shindelman, supra note 31, at 1931–32 (“What constitutes an unreasonable invasion into one’s privacy must ‘evolve along with the myriad ways in which humans contrive to interact with one another.’”).

176. Henderson, supra note 145, at 234; see generally Marc Rotenberg & David Jacobs, Updating the Law of Information Privacy: The New Framework of the European Union, 36 HARV J.L. & PUB POL’Y 605, 608, 616 (2013) (describing the “fundamental right” of privacy and one’s right to control one’s own data embedded in the European Union’s General Data Protection Regulation (2012) and the associated rules governing State’s and the EU’s responsibilities); see, e.g., United States v. Miller, 425 U.S. 435 (1976).

IV. GUIDELINES

The main challenge is DTs are mental by nature, and there is no realistic way to eliminate human error or “fix” how someone thinks. Therefore, in addition to helping to increase awareness, I have suggested some guidelines for Fourth Amendment privacy cases. A secondary goal of these guidelines is to increase the thoroughness of the opinions and thereby increase the confidence of interested parties. As discussed at the beginning of this Article, the written opinion is a reflection of all that came before. If the opinions adhere to some of the suggested guidelines, a reduction in DTs will only add value to the opinion regardless of the outcome.

First, these cases involve the Fourth Amendment. One of the primary objectives of the Fourth Amendment is the protection of individual privacy from state intrusion. This objective remains constant for the innocent and criminal alike. Security issues are also important, but peace and innocence are the constants, and criminal and foreign threats are the exception. Thus, all cases involving Fourth Amendment privacy issues should be framed and approached from the perspective of the privacy rights of the party opposite the government. United States v. White is a prime example of this. From the way the opinion read, it was very security centric and conveyed the notion that since the respondent was a criminal, he was not afforded privacy protections. To indicate this, the opinion itself should begin with the text of the Fourth Amendment followed by the importance of individual privacy. One of the better examples of this is United States v Warshak, 177 which is a case involving the government’s utilization of a National Security Letter to access email records.

Second, a thorough explanation should be mandatory. Court opinions do not do justice to the decisions that impact the lives of that individual, the government, and society as a whole. Important distinguishing cases and ones that run counter to the majority opinion should be addressed. This assures that laws are being adhered to and convey that the court is cognizant of the various competing arguments. In United States v. Miller, the Court made short work of a very complex situation. That case involved personal financial data, information about personal associations and habits, and the bank’s promise one of its prime commercial products of keeping personal information confidential.178 The opinion did not address any of these issues sufficiently. Even if the third-party doctrine explanation was valid, more should have been said to tie everything together.

177 631 F.3d 266, 274 (6th Cir. 2010).

178 United States v. Miller, 425 U.S. 435, 438–39 (1976).

Third, when new tests or factors are introduced for the first time, the opinionshouldincludesatisfactorycontoursandguidelines.Thetest doesnot need to be fully fleshed out and detailed. A flexible test or a set of factors capable of evolving with changing circumstances is desired. Justice Harlan’s reasonable expectation of privacy test has come under some scrutiny, but for the most part, it has proven a sufficient test especially given the variety of situations encompassed by Fourth Amendment privacy law. In Kyllo, the “general public use” test is too ambiguous, undefined, and has left too much room for interpretation, thereby creating potential for abuse.

Fourth, when delivering opinions that hinge on social behavior or society’s expectation of privacy, the behavior and expectations should be reflective of reality how the general person and society would actually behave. This is exactly in line from the Katz test. In California v. Ciraolo, the Court created a publicly navigable airspace based on a non-existent general practice. Everyone wants what is best for this country and maintaining our American values and way of life is at the heart of that. These false scenarios only function to limit these values and way of life in the name of security.

Fifth, similarly, opinions should eliminate presenting known possibilities as a new occurrence, especially when they are unlikely to happen. These tend to read like workarounds to justify an outcome. In a sense, this is equivalent to a fictional story’s use of deux ex machina creating a new plot device to resolve an unsolvable problem in order to move the story forward. In California v. Ciraolo, the majority sought to expand the plain view doctrine by broadening the definition of what is exposed to the public because a police officer may decide to stand on a truck or bus. First, the gauge of privacy revolves around the general public’s practices and not that of law enforcement, and second at the time of Katz, the concept of peeping toms was well known, and the possibility of climbing a tree or bus was not novel by any means. The privacy protections of a curtilage enclosed in a fence had never been curtailed despite these known practices.

Sixth, because the rapid explosion of technology, the rate of these technological advancements, and the utilization of tools like metadata are now very apparent, the evolution of technology and information manipulation should become a permanent addition to the privacy expectation calculus. In a very prescient dissent, Justice Brandeis in Olmstead stated The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developedbywhich the government, withoutremoving papersfrom secret drawers, can reproduce them in court, and by which it will be

2018] FOURTH AMENDMENT DECISIONAL TRAPS 505

enabled to expose to a jury the most intimate occurrences of the home.179

Justice Brennan’s dissent in United States v. Miller180 and most recently in Justice Sotomayor’s concurrence in United States v. Jones181 focused on this very issue. The Fourth Amendment’s protections were meant to protect the disclosure of private information, and today’s technology allows for vast amounts of exposure. United States v. Maynard, the D.C. Circuit Court case that eventually went to the Supreme Court under Jones, is a good example of an opinion incorporating this modern context into its decision.182

Seventh, the test for a reasonable expectation of privacy should not be circumscribed solely by the term “secrecy” nor should privacy be precluded in the public sphere. As Justice Scalia stated in O’Connor v. Ortega, It is privacy that is protected by the Fourth Amendment, not solitude. A man enjoys Fourth Amendmentprotection in his home, for example, eventhoughhiswifeandchildrenhavetherunoftheplace-andindeed, even though his landlord has the right to conduct unannounced inspections at any time. Similarly, in my view, one’s personal office is constitutionally protected against warrantless intrusions by the police, even though employer and co-workers are not excluded.183

Katz and society’s true expectation of privacy support this notion. Words like “confidential,” “personal,” and “disclosure” each represent more than mere secrecy and should be added to the working definition. Bright-line clarity is understandable, but the injustice that may follow does not justify the effect on society. Courts should engage in nuanced and contextual readings whentryingto delineate these zones ofprivacyespeciallyinthis age of globalization and technological advancement, and notions of privacy reduction to preserve security should be avoided.184

The goal of these suggested guidelines is not to create a talismanic formulaorarecitationofwordsbuttofacilitatebetterlegalanalysisandfuller explanations thereby adding richer substantive law in the ongoing debate between Fourth Amendment privacy and our country’s security.

V. CONCLUSION

The main purpose of this Article was to draw attention to some of the framework, methodological, and legal process issues decisional trap in

179. Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J., dissenting).

180 425 U.S. at 447–455 (Brennan, J., dissenting).

181 565 U.S. 400, 413–418 (2012) (Sotomayor, J., concurring).

182. United States v. Maynard, 615 F.3d 544, 567–68 (D.C. Cir. 2010), aff’d 565 U.S. 400.

183 480 U.S. 709, 730 (1987) (Scalia, J., concurring).

184 Henderson, supra note 145, at 233.

Fourth Amendment privacy cases. These DTs have led to decisions detrimental to privacy not just for that individual but for American society asawhole.TheinclusionoftheFourthAmendmentwasnotarbitrary.Itcame as a result of an overly intrusive government, and even though the motives may be pure, we potentially face these same dangers with each case that weakens the Fourth Amendment protections. There will never be a way to eliminate human error from any analytical work let alone judicial decisions, and many cases display an incredible level of expertise, skill, and insight. However, as in any other arena of life, it is incumbent upon any American especially those involved with instituting justice that the utmost efforts are made to mitigate shortcomings and if possible enhance the legal process and substantive law.

506 SOUTH TEXAS LAW REVIEW [Vol. 59:477

REVERSING THE ODDS: CREATING UNIFORMITY WITH RULE 404(B)

I.

The Federal Rules of Evidence (the Rules) prohibit the use of a person’s character traits from being admissible evidence to show that a person acted in accordance with that particular character or trait on a given occasion.1 However, the Rules do not merely create a ban on general character evidence.2 The Rules also restrict the admissibility of evidence that specifically pertains to prior crimes, wrongs, or other acts of a person.3 Rule

† Need Author’s Note

1 FED R. EVID 404(a)(1).

2 See FED R. EVID 404(b)(2).

3 FED R. EVID 404(b)(1).

404(b)(1) restricts a party from offering evidence of a prior crime, wrong, or other act to show that a person acted in conformity with that character trait on a particular occasion.4 If the Rules were to have stopped there, much of the confusion that followed would have likely been avoided. But the Rules went one step further. Rule 404(b)(2) creates a way around the ban on propensity evidence and allows the court to admit character evidence involvingapriorcrime,wrong,orotheractaslongasitfitsintoanacceptable category.5 Rule 404(b)(2) states that as long as the purpose for introducing the propensity evidence is for a purpose besides showing character such as motive, intent, knowledge, or identity the evidence may be admitted.6 While this Rule may appear to be rather straightforward, since its enactment in 1975, its practical application has been one of the most litigated issues on appeal in the American Judicial System.7

Rule404(b) canbeconfusing, andit isimportant tofirstunderstandhow the Rule truly works. At first glance, the Rule appears to be one of exclusion rather than one of inclusion. On its face, the Rule states that evidence of prior crimes, wrongs, or other acts are inadmissible unless admitted for a purpose other than proving action in accordance with the character.8 However, this is misleading. Rule 404(b) is, in fact, a rule of inclusion, not a rule of exclusion. This fact becomes abundantly clear when a criminal case is involved. In criminal matters regarding Rule 404(b), the court should always consider how critical the evidence is to a prosecutor’s case when considering the admissibility of the evidence, and such evidence should not be excluded without thoughtful consideration by the court.9 This shows that a court treats the Rule as inclusive and will only exclude the evidence after special consideration. Therefore, when viewing the actual application of the Rule, it would appear that all evidence of prior crimes, wrongs, or other acts are admitted, unless the purpose is to show a defendant’s propensity. Unfortunately for many defendants in the criminal justice system, most courts tend to struggle with determining when a prosecutor is making an inference to the character of a defendant.10 Without recognizing when an inference to a character trait is being made, Rule 404(b) serves little purpose.

4 Id.

5 FED R. EVID 404(b)(2).

6 Id.

7 Thomas J. Reed, Admitting the Accused’s Criminal History: The Trouble with Rule 404(b), 78 TEMP L. REV 201, 211 (2005).

8 FED R. EVID 404(b)(1)–(2).

9. See United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).

10 See 22B KENNETH W. GRAHAM, JR., FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5244 (2d ed. 2018) (“[J]udges find it easier to state the principles abstractly than to hew to it in practice.”).

2018] CREATING UNIFORMITY WITH RULE 404(B) 509

Before going into too much detail about the struggle with Rule 404(b), it is important to understand a brief history of how it was first applied in the United States. Originally, Rule 404(b) was only a common-law rule and it was not codified until 1975.11 After the federal codification of Rule 404(b) came into existence, the precise way to apply it was uncertain and left the courts with much confusion. Huddleston has become the seminal Supreme Court case to address Rule 404(b) and resolve its confusing application. In Huddleston, the Supreme Court attempted to provide a workable test to properly apply Rule 404(b).12 Huddleston involved a defendant charged with selling and possessing stolen video cassette tapes.13 The issue in the case was not whether the video cassette tapes were stolen, but whether the defendant was aware they were stolen.14

The Court first held that before allowing similar acts evidence under Rule 404(b), there must be a determination that the “evidence is probative of a material issue other than character.”15 Therefore, Huddleston required that the sole purpose for offering the evidence must not be to show character.16 The Court recognized that the purpose of Rule 404(b) was not to prohibit the introduction of evidence, but to limit the purpose for which it was capable of being used.17 The Court reasoned that extrinsic acts evidence should be excludedwhen“offeredsolelytoprove[aparty’s]character.18 Iftheevidence is offered for a purpose other than character evidence, it may be admitted as long as it is not excluded by Rules 402 or 403.19 In other words, before evidence could be admitted, not only would the evidence have to be in conformity with Rule 404(b), it must also satisfy Rules 402 and 403 before being admissible.20

The Supreme Court was cognizant of the risk that accompanied evidence admitted under Rule 404(b) and formulated a four-part test to protect against the potentially unfair outcome.21 Huddleston held that the most effective way to stifle unfair prejudice would be to require: (1) “the evidence be offered for a proper purpose;” (2) the evidence be relevant under Rule 402; (3) the probative value of the evidence cannot be substantially outweighed by the possibility of unfair prejudice; and (4) a limiting

11 Reed, supra note 7, at 212–14.

12 Huddleston v. United States, 485 U.S. 681 (1988).

13 Id. at 682.

14 Id. at 683.

15 Id. at 686.

16 Id. at 687.

17 Id.

18. Id.

19 Id. at 688.

20 Id. 21 Id. at 691–92.

instruction under Rule 105 should be given upon request.22 This test set the foundation for the proper way to apply the Rule, but nevertheless, the Court failed its purpose to create a workable test that would result in the uniform application of the Rule.

Despite the Rule being the same for all federal courts, since Huddleston, federal courts have had tremendous difficulties uniformly applying the Rule, leading to a vast difference in rulings on admissibility depending upon the jurisdiction in which a person litigates.23 In a valiant effort to resolve this unacceptable discrepancy amongst the courts, the Seventh Circuit attempted to create a new test that could be more easily applied and understood.24 Despite the Seventh Circuit’s efforts, even the new test will fall short, just as any other attempt by another circuit would fall short of resolving the issue.

This Comment argues that not only are the current tests that are being applied leading to an unacceptable discrepancy, but also that the Seventh Circuit’s attempt to change the determination of admissibility under Rule 404(b), while admirable, will be ineffective and likely lead to further confusion in an area already heavily saturated with uncertainty. While the abandonment of the current checklist test under Huddleston and the formulation of a new test may provide guidance to courts under the jurisdictionofthe SeventhCircuit,the change will fail to createthe necessary uniform application amongst all the circuits and district level courts. The attempt by the Seventh Circuit to create a new test provides a perfect illustration of the complexity and difficulty the courts face when trying to create a coherent test that is uniformly applied across the country. The purpose behind Rule 404(b) is lost in the confusion and courts’ efforts are failing to do what they set out to accomplish.

To ensure uniformity and justice, this Comment argues that the Rules should be amended to require a quasi-reverse balancing test, requiring the risk of unfair prejudice to be outweighed by the probative value before any evidence of a prior crime, wrong, or other act can be admitted. In the alternative, this Comment proposes that the Supreme Court should grant review to ensure equality in the distribution of justice.

Part II of this Comment delves into the background of Rule 404(b) and discusses the current tests imposed by the different circuits in the United

22 Id.

23 See United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000) (holding that 404(b) requires a four-step test); United States v. De Luna, 763 F.2d 897, 912–13 (8th Cir. 1985) (holding that the 404(b) requires a three-step test), overruled on other grounds by United States v. Inadi, 475 U.S. 387, 391 (1986); United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (holding that 404(b) requires a two-step test).

24 United States v. Gomez, 763 F.3d 845, 853 (7th Cir. 2014) (replacing the four-part test with “a more straightforward rules-based approach”).

States, as well as the shortcomings of relying on a limiting instruction under Rule 105. Part IIIexplains why Supreme Court review although unlikely is a reasonable solution, the process to amend the Rules, and the reasoning and policy behind the proposed change to Rule 404(b). Part IV will conclude with how the current application of Rule 404(b) will continue to be applied differently amongst the circuits, and how an amendment to the Federal Rules of Evidence is necessary to provide an effective solution.

II. BACKGROUND

Federal Rule of Evidence 404(b) is a codification of common-law ideology that a person should be tried for the crime they are accused of, not for their character. Rule 404(b)(1) states that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”25 Character is not defined in the Rules, but in general, it is a “description of a person’s disposition or a general trait, such as honesty, temperance, or peacefulness.”26

A. The Purpose Behind Rule 404(b)

To understand the underlying purpose and application of Rule 404(b), it is helpful to understand its origin and development. A long-established doctrineoftheAmericanjudicialsystemhasbeenabaroncharacterevidence for the purpose of establishing a party’s propensity.27 The well-accepted risk of character evidence is that a juror may draw an improper conclusion concerning the general propensity of a defendant.28 Although a prerequisite of admission of character evidence under Rule 404(b)(2) is a legitimate purpose other than showing character, this theoretical limitation does not serve its safeguarding function to its full potential.29

Judges have been especially liberal with their determination of whether evidence is admissible or not under Rule 404(b) when admissibility is sought by prosecutors.30 This is true to such a degree that some have suggested that the exclusionary purpose of Rule 404(b)(1) is the exception, not the rule.31

25 FED R. EVID 404(b)(1).

26 JOSEPH W. COTCHETT & G. RICHARD POEHNER, FEDERAL COURTROOM EVIDENCE § 404, § 404.2 (5th ed.).

27 Kenneth J. Melilli, The Character Evidence Rule Revisited, 1998 B.Y.U. L. REV 1547, 1547 (1998).

28. Id. at 1550.

29 Id. at 1555–56.

30 Reed, supra note 7, at 250–51.

31 Melilli, supra note 27, at 1556.

Theadmittance rateisso high that the general conception isa prosecutor who utilizes creativity will be successful in formulating a theory that allows the admittance of otherwise forbidden character evidence.32 Moreover, courts haveadifficult timedeterminingwhether aprosecutorismakinganinference toacharactertraitornot.33 Ifacourtstrugglestomakeaproperdetermination as to whether an inference to a character trait is being asserted, Rule 404(b) loses its power to protect a defendant.

Rule 404(b) was implemented to counteract the fear that a jury may find a person guilty because he is not a “good” person, and therefore deserves to be punished, or that a jury will weigh his prior acts too heavily and draw the irrational conclusion that if he committed a crime once, he will commit it again.34 For example, the Rule seeks to combat the possibility that a jury will presume a defendant is guilty of drug possession simply because the defendant had committed a prior drug-related act in the past or any other crime for that matter. The Rule was also meant to combat the possibility that a jury will seek to further punish a defendant because of their prior act, instead of determining guilt or innocence based on the evidence at hand. In other words, the Rule was designed to make sure that a jury did not decide to convict adefendant of a crime theydo not believe he committed,just because they feel he should be punished for a crime he committed in the past.

In general, evidence of other crimes, wrongs, or acts is irrelevant to establish whether the conduct in question occurred.35 As it stands today, humans’ knowledge to explain the reasoning behind why a human acts the way he or she does is simply too weak to support the desired inference that character evidence is seeking to support.36 The human mind is prone to generalizing and is unable to tolerate uncertainty, which often results in the construction of unreal mechanisms to explain why others do what they do.37 In order to avoid the default human tendency to construct unreal mechanisms as a way of explaining conduct, the inadmissibility of character evidence promotes verdicts based upon the current charge, not prior acts.38

32 Id.

33. See GRAHAM, supra note 10, § 5244.

34 Russell J. Davis, Admissibility, Under Rule 404(b) of Federal Rules of Evidence, of Evidence of Other Crimes, Wrongs, or Acts Not Similar to Offense Charged, 41 A.L.R. Fed. 497, § 2[a] (1979).

35 See GRAHAM, supra note 10, § 5232 (“[T]he anti-propensity doctrine finds support in one of the fundamental axioms of our criminal law we only punish people for what they have done, not for who they are.”).

36 See id.

37. See id.

38 Russell G. Donaldson, Admissibility, Under Rule 404(b) of Federal Rules of Evidence (28 U.S.C.A. Fed. Rules Evid. Rule 404(b)), of Evidence of Accused’s Prior Use of Illegal Drugs in Prosecution for Conspiracy to Distribute Such Drugs, 114 A.L.R. Fed. 511, § 2 (1993).

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TheRule,however,isnotabsolute,andcharacterevidencemaystill find its way to the jury, despite the inherent risks involved in providing a juror with such evidence. Rule 404(b)(2) is a workaround for civil and criminal attorneys to use for the purpose of introducing prior acts evidence.39 The catch is that the sole relevance for such evidence may not be for the purpose of revealing the character of the defendant.40 Rule 404(b)(2) permits the evidence discussed in 404(b)(1) to be admitted as long as it is offered for another purpose, such as knowledge, identity, or intent.41 Prior acts evidence will still be admitted, even if it has a tendency to draw the juror’s attention to a character trait, as long as that was not the sole purpose of the introduction.42 Therefore, the character evidence will be admitted, despite Rule 404(b)(1), and have the exact effect the Rule was meant to eliminate, as long as some purpose of the evidence is offered for a reason aside from character.

B. Character Evidence in the United States

1. Molineux

Rule 404(b) and its exceptions were not always codified. Prior to the codification of the Rules, United States courts first implemented the basis for what would eventually become Federal Rule of Evidence 404(b) in a New York state court in 1901.43 In People v. Molineux, the defendant was charged with the first-degree murder of Katharine J. Adams while committing a felony against Harry S. Cornish.44 The defendant was accused of using a cyanide of mercury and sending it by mail to Cornish.45 Cornish had received a package that contained a bottle labeled as seltzer, and because of his lack of knowledge of the cyanide of mercury, administered it to Katherine J. Adams, causing her death.46 The prosecution sought to connect the defendant to the murder of Mrs. Adams by offering evidence that showed the defendant was responsible for a prior murder of a Henry Barnet.47

On appeal, the Court of Appeals of New York recognized the general rule that when one is put on trial for a crime, proof of guilt of another offense is excluded.48 The court acknowledged that it is easier to find a person guilty

39 FED R. EVID 404(b)(2).

40 Id.

41 Id.

42 See Donaldson, supra note 38, § 2.

43 People v. Molineux, 168 N.Y. 264, 273 (1901).

44 Id.

45. Id.

46 Id.

47 Id. at 279–80.

48 Id. at 291–92 (quoting People v. Sharp, 14 N.E. 319 (N.Y. 1887)).

of a crime if they know that person committed a similar crime in the past.49 The court, however, did not mechanically exclude the evidence, and stated prior acts evidence cannot be automatically excluded and are admissible to establish motive, intent, the absence of mistake or accident, a plan, or identity.50 The decision in Molineux has been upheld for over a century and continues to be the law followed by the New York Court of Appeals.51 The holding and rationale of Molineux has formed the basis of Rule 404(b) and clearly states its primary purpose.

2. Codification

The Molineux decisionwasformulatedasageneralbanagainstevidence of other bad acts unless they fit into one of Molineux’ s exceptions.52 While generallyaccepted, courts struggle to find a consensus as to the level of proof needed to permit such prior bad acts to be offered before the jury. Towards the end of the Great Depression, the American Law Institute undertook the responsibility of codifying the rules of evidence.53

John M. Maguire of the American Law Institute proposed a rule similar to that in Molineux, and based on the cases in England and the United States, the majority of cases conformed to the proposed rule.54 In contrast to Maguire’s proposal, another proposal was offered that suggested the Rule should allow uncharged misconduct to be admitted as evidence in order to prove any issue other than bad character.55 A final edition of the Model Code of Evidence was completed in 1942, but it was not adopted in any jurisdiction.56 It was not until 1972, when the Supreme Court sent a proposed Rule 404 to Congress (although slightly different from the Rule that exists today), that it was eventually adopted by Congress in 1975.57 The Rule was

49 Id. at 292.

50. Id. at 294–306.

51 People v. Brewer, 66 N.E.3d 1057, 1060 (N.Y. 2016) (holding that “Molineux” evidence is admissible if not offered to show propensity, but to corroborate the victims’ testimony).

52. People v. Molineux, 168 N.Y. 264, 293 (1991).

53 Reed, supra note 7, at 205.

54 Id. at 206.

55 Id. at 206–07.

56 Id. at 207.

57 Id. at 209 (stating “(b) Other crimes, wrongs, or acts. - Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subdivision does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”). The 1975 enactment of the Federal Rules of Evidence applied to all actions, cases, and proceedings that took place after the 180th day of enactment. See Pub. L. No. 93-595.

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codified in a way that promoted its common law inclusive form.58 Since the enactment of the Federal Rules of Evidence in 1975, forty-one states have adopted the Federal Rules of Evidence and the federal courts are bound by the 1975 codification.59

C. Current Application

After the codification of Rule 404(b), the road to conformity can hardly be said to have been a smooth one. In fact, the journey on the road to conformity has yet to be conquered. Despite the Supreme Court’s attempt in Huddleston to create a uniform application of Rule 404(b), the circuit courts have applied different foundational requirements to determine whether Rule 404(b) evidence is admissible, leading to a vast array of results and a split amongst the circuits.60 The application amongst the circuits has been entirely inconsistent and far from uniformly applied. Ideally, the Rules would be applied by all federal courts with uniformity and consistency.61 This ideologicallyperfect application hasentirelymisseditsmarkin terms of Rule 404(b), as it is the most litigated Federal Rule of Evidence and is the basis for more published opinions than any other Federal Rule of Evidence.62

The circuits are split into four groups of thought regarding Rule 404(b).63 While they share a commonality, they all deviate in some respect, producing incongruent results. The majority of circuits apply a four-element test, while one circuit provides afive-element test.64 In the middle ofthe pack are two different schools of thought, with three circuits applying a two-

58. FED. R. EVID. 404, Notes of Committee on the Judiciary, H.R. REP. NO. 93-650, at 7 (1973). The Rule submitted to Congress read “This subdivision does not exclude the evidence when offered,” but was amended by the Committee before adoption to read “It may, however, be admissible.” Id. The Rule sent to Congress was amended to greater emphasize the admissibility. Id.

59 Reed, supra note 7, at 212–13.

60. See United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000) (holding that 404(b) requires a four-step test); United States v. De Luna, 763 F.2d 897, 912–13 (8th Cir. 1985) (holding that the 404(b) requires a three-step test), overruled on other grounds by United States v. Inadi, 475 U.S. 387, 391 (1986); United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (holding that 404(b) requires a two-step test).

61 See J. Clifford Wallace, The Nature and Extent of Intercircuit Conflicts: A Solution Needed for a Mountain or a Molehill?, 71 CALIF L REV 913, 923 (1983).

62 See Jeffery Cole, “Bad Acts” Evidence in Civil Cases Under Rule 404(b): It’s Not Just for Prosecutors Anymore, 37 LITIGATION 47, 47 (2011).

63 Lead Story: FRE 404(b) Diverging Elements: A Circuit Split Ripe for Certiorari Review?, 3 FED EVID REV 756, 758–59, (June 2006) http://federalevidence.com/pdf/2014/03March/FRE404%28b%29-DivergingElements-6-2006.pdf [https://perma.cc/5QA5-EDVC].

64 See id. The Second, Third, Fourth, Seventh, Eighth, and Tenth Circuits apply a fourelement test. See id. The Ninth circuit applies a five-element test. See id.

element test and two circuits applying a three-element test.65 These different applications of the same Rule show the general difficulty involved in its application and the different ways it may be interpreted. It can hardly be contested that a rule fails to satisfy its purpose of being applied consistently throughout district courts when four different tests are imposed to apply the same rule.

The Eighth Circuit applied a three-part test in United States v. Deluna, which involved a group of defendants being convicted for knowingly transporting stolen money, utilizing facilities with the intent of establishing anunlawfulgamblingestablishment,andconspiracy.66 Theappellantsargued that evidence of prior crimes was admitted for the purpose of showing their character, and such evidence was irrelevant or the probative value was outweighed by the prejudicial impact and should have been excluded.67 One piece of evidence at issue involved statements by executives of two companies intended to merge in the hopes of pumping life into one of them.68 The argument was that the testimony established insider information was involved in the merger.69 Another evidentiary issue was that the government presented evidence of prison visitation records, amongst other evidence, that a defendant had been in prison and already undergone numerous criminal proceedings.70

The court held that the proper test to determine admissibility under Rule 404(b) is: (1) whether the evidence is relevant to an issue besides character; (2) clear and convincing evidence exists to show the defendant committed the other wrongful act; and (3) unfair prejudice cannot outweigh the probative value.71 Thecourt found that the evidenceof the merger andinsider information was offered to show a hidden interest of the defendants and was therefore not excluded under Rule 404(b).72 The court also found that the evidence of the defendant being in prison and undergoing criminal proceedings was admissible because it was used for the purpose of identity and showed the defendant’s use of code names.73

In total, the defense objected to evidence of eight prior wrongs, crimes, or acts under Rule 404(b).74 Although the court earlier acknowledged a three-

65 See id. The Sixth and Eleventh Circuits have a three-element test, while the First, Fifth, and DC have a two-element test. See id.

66 United States v. De Luna, 763 F.2d 897, 903 (8th Cir. 1985).

67 Id. at 912.

68 Id. at 913.

69 Id.

70 Id. at 915.

71. Id. at 912–13.

72 Id. at 913.

73 Id. at 916.

74 Id. at 913–16.

part test to decide Rule 404(b) disputes, it appears that the court concluded that because the evidence was offered for a purpose other than character evidence despite the fact that a juror would equate such evidence with the defendant’s character nothing more was required of the prosecutor to circumvent the Rule.75 In fact, the court made only one reference as to whether the probative value was substantially outweighed by the potential risk for unfair prejudice.76 The court’s only application as to part three of their test involved no reasoning, only a conclusory statement that the probative value outweighed the prejudice.77

The Fifth Circuit takes a slightly different approach by applying a twopart test.78 In United States v. Beechum, the defendant was convicted for carrying an 1890 silver dollar that he knew had been stolen from the mail.79 The government introduced evidence of credit cards found in the defendant’s wallet during the arrest that had been mailed to different addresses on his route.80 The court held the proper analysis to determine admissibility under Rule 404(b) is a two-step test that required: (1) the extrinsic offense evidence be relevant to an issue besides the character of the defendant; and (2) the probative value cannot be substantially outweighed by any risk of undue prejudice.81

The court concluded that the evidence was offered to show intent and not character and should be admitted.82 The court reasoned that since the defendant had an unlawful intent with the credit cards, it is less likely that he had alawful intent withthesilver dollar.83 Although thecourt recognized that a Rule 403 balancing test must still be conducted, the court found that because the purpose of the other acts evidence was to show intent, and intent was at issue in the trial at hand, there are no grounds for reversal on a Rule 403 determination.84 Once again, nothing was required of the prosecutor aside from simply stating a purpose in which the evidence could be used besides that of the defendant’s character. Once the trial court decided that Rule403wassatisfied,theappellatecourthadnobasistoreversethedecision as long as the evidence was offered in regard to an issue in contention during the trial.85

75 See id. at 913.

76 Id. at 916.

77 Id.

78 United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978).

79 Id. at 903.

80 Id.

81 Id. at 911.

82. Id. at 915.

83 Id. at 912.

84 Id. at 915 (citing United States v. Adderly, 529 F.2d 1178, 1182 (5th Cir. 1976)).

85 Id. at 915–16.

In yet another approach, the Tenth Circuit employed a four-part test.86 United States v. Zamora involved the defendant being convicted of armed robbery.87 During the trial, the court admitted evidence involving a prior robbery committed by the defendant.88 While the defendant argued the evidence was irrelevant and highly prejudicial, the government argued it was relevant to the issues of motive, state of mind, and other permissible issues.89 On appeal, the Tenth Circuit followed the exact test set forth by Huddleston, requiring: (1) the evidence be offered for a proper purpose; (2) the evidence is relevant; (3) the probative value of the evidence is not substantially outweighed by the risk of unfair prejudice; and (4) in compliance with Rule 105, a limiting instruction must be granted upon request.90

The court took the government’s word at face value and accepted that, because they stated it was offered for a permissible purpose, that it was in fact offered for that purpose and thereby satisfied the first prong of the test.91 The government stated the purpose of the evidence was to show the defendants motive, state of mind, plan, knowledge, and lack of mistake or accident, and the court found that since these were permissible purposes the government satisfied the first prong of the Huddleston analysis.92

The court recognized the evidence under Rule 404(b) required a determination that the evidence’s probative value is not substantially outweighed by the risk of unfair prejudice.93 However, the court did little more than acknowledge the test exists.94 The court found that because the evidence was “relevant” to a state of mind and credibility, then a trial court’s determination of a Rule 403 balancing test was not reversible.95

D. The Seventh Circuit’s New Approach

In 2010, the Seventh Circuit created a new formula to determine the admissibility of evidence under Rule 404(b) in an attempt to eliminate the current circuit split.96 Nicolas Gomez was charged and convicted of conspiracy to possess cocaine with intent to distribute and three counts of using a telephone to facilitate a drug crime.97 Agents of the Drug

86. United States v. Zamora, 222 F.3d 756, 760 (10th Cir. 2000).

87 Id.

88 Id. at 761.

89 Id.

90 Id. at 762 (citing Huddleston v. United States, 485 U.S. 681, 691–92 (1988)).

91 Id.

92 Id.

93 Id. at 763.

94. Id.

95 Id. at 762–63.

96 United States v. Gomez, 763 F.3d 845, 853 (7th Cir. 2014).

97 Id. at 851.

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Enforcement Agency (“DEA”) suspected Gomez was involved in a cocaine operationandbegantogatherevidence.98 Awiretapwasplacedonthephones ofaknowncocainesupplier,Romero.99 Throughthewiretap,theDEAagents were able to discover a reseller named “Guero.”100 The cell phone used by Guero was registered to the address of Gomez’s brother-in-law, Reyes.101 AfterGueroandRomeromadeacocainesaleoverthetelephone,DEAagents used GPS data to track Romero to an alley behind Gomez’s house.102 After months of similar activity, the DEA agents decided to catch Guero and Romero red-handed.103

The DEA conducted a stakeout at Gomez’s house and the Federal Bureau of Investigation (“FBI”) followed Romero.104 Gomez and Romero had a brief discussion, shook hands, and parted ways.105 The DEA stopped Gomez, and Gomez gave the agents information including the number associated with Guero’s phone.106 After Gomez was released, the FBI observedhimpickupRomeroinagreenminivan.107 Themen met withReyes at a restaurant and then went their separate ways.108 Neither man returned to the vehicle that Romero drove to the transaction and the DEA seized the abandoned vehicle which contained a quarter kilogram of cocaine in the trunk.109 Subsequent recorded phone conversations between Romero and Guero involved Guero telling Romero the vehicle was towed, that he got a new number, and that his brother-in-law had been stopped by police after leaving the restaurant which happened to Reyes after leaving the restaurant.110

Approximately one month later, federal agents arrested Gomez and located a cell phone that was used by Guero, a phone bill associated with a phone used by Guero, and a small amount of cocaine in Gomez’s pants that were in his bedroom.111 Gomez was brought to the FBI’s prisoner processing center and charged.112

that the federal agents believed that “Guero” was Gomez.).

520 SOUTH TEXAS LAW REVIEW [Vol. 59:507

During the trial, Gomez’s defense was mistaken identity and that not he, but Reyes, was Guero.113 Gomez objected under Rule 404(b)(1) to the prosecution’s introduction of the small quantity of cocaine found in his pant pocket during his arrest.114 Despite the arrest not being at issue in the case at hand, the trial court nevertheless admitted the evidence to prove Gomez’s identity as Guero.115 The jury convicted him on all counts.116 On appeal, Gomez continued to attack the admittance of the cocaine found in his pocket as proof of identity and the verdict was affirmed.117 The Seventh Circuit decided to vacate the panel opinion and rehear the evidentiary issue en banc.118 While the conviction was affirmed, the Seventh Circuit’s reasoning articulated the many flaws involved with the current application of the Rule and attempted to change the framework by which Rule 404(b) evidentiary issues are determined.119

The Seventh Circuit noted that such multipart tests can distract from the legal principle the test is designed to protect, and in cases such as drug cases, the other acts evidence is often admitted too easily without consideration of the true purpose the evidence is being offered.120 The Seventh Circuit abandoned the multi-prong test.121 The court strongly contested the idea that Rule 404(b) should be applied mechanically allowing character evidence to be admitted as long as it can be connected to a permissible purpose.122 Gomez proposed that the prosecution go beyond identifying a permissible purpose, requiring the evidence be admitted only under the condition that a “propensity-free chain of reasoning” is shown.123 This requires relevance to be proven through a means separate from the forbidden character inference.124 This proposal would eliminate the issue of courts taking a prosecution’s word at face value and would require an actual showing that the evidence is not in fact being offered for the purpose of showing conformity with a character trait.

Gomez held that even if the evidence is relevant through proof of a nonpropensity purpose, Rule 403 may still exclude the evidence.125 The court

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recognized the unique concerns posed by the risk of propensity inferences by ajury.126 The probative value of the evidenceshould be considered in regards to the degree to which the non-propensity issue is being disputed, in light of a defendant’s willingness to stipulate.127 Relying on Old Chief v. United States, Gomez held that general-intent crimes should forbid other acts evidenceunlessadefendantcontestsafactbeyondpleadingnot guilty.128 The court found that with general-intent crimes, a defendant’s intent may be inferred from the act, making intent a factor not automatically at issue.129 Gomez set forth what would appear to be a solution to the current struggle of not only the uniform application of Rule 404(b), but the risk a defendant will be convicted for a reason other than their guilt in relation to the current charge. Regardless of the test imposed by the Seventh Circuit, the courts will inevitably continue to allow impermissible character evidence under the current Rule. The issue is not that courts refuse to follow the Rule or deliberately ignore Huddleston. Rather, even courts that understand the Rule fail to see the connection between the evidence being offered and character.130 Furthermore, some courts often attempt to avoid the policy of the Rule entirely and engage in clever word-play in terms of the word “character.”131 Forexample,somecourtswillholdthataspousebeingjealous is not a character trait, rather, it is simply just an emotional state of mind.132 If this reasoning were accepted, greed and hatred would also have to be accepted, and the slippery slope would become so great that the Rule would essentially disappear.133 These generalizations are the ones the Rule itself meant to prevent, and cannot be tolerated in such important proceedings.

E. Limitation of the Limitation Instruction

The current circuit split and innovative approaches to solving the problem have shown a clear need for a uniform solution. Although the actual application of the Rule has caused much confusion, even if properly applied, the Rule itself will still leave many defendants in a compromising situation. Once a jury hears of a defendant’s prior criminal act, whether convicted or not, it becomes increasingly difficult for the jury to disregard the evidence in terms of the defendant’s character. To combat this obvious problem, Rule

126 Id. at 857.

127 Id.

128 Id. at 857–58.

129 Id. at 858.

130. See GRAHAM, supra note 10, § 5329.

131 Id.

132 Id.

133 Id.

105, which allows a court upon request to instruct the jury of the purpose and scope for the evidence, attempts to lessen the impact.134 While a jury instruction may lessen the prejudice endured by a criminal defendant,itisprobablethat alimitinginstructionwillbeentirelyineffective, as it is well known that a juror will consider evidence for an improper purpose, regardless of any limiting instruction given.135 A jury is more inclined to convict if they can imagine a defendant committing a similar criminal act in the past.136 The fear of a jury being unable to follow the instructions of a limiting instruction, or simply refusing to do so, is that evidence used for an evaluative use vanishes and the evidence becomes substantive.137 Judge Learned Hand found a limiting instruction to be beyond the abilities of a jury or anyone else for that matter and thereby ineffective.138 As such, a limiting instruction has absolutely no effect in upholding the purpose for which Rule 404 was created, and should therefore not be relied upon as an excuse for admitting what should have otherwise been inadmissible character evidence. To think a jury could hear prior wrong act evidence, and disregard it for purposes of character, would be analogous to putting a drop of ink into a carton of milk, shaking it up, and assuming the drop of ink could then be extracted from the milk. The fact is once the ink has been placed in the carton of milk and shaken around, there is no taking it back. No matter what instruction a jury receives from the court, once a jury hears character evidence of a prior wrong act, it will weigh on the determination of guilt or innocence, whether intentional or not.

III. ANALYSIS

A. Gomez Will Not Create Uniformity

Gomez sets out what appears to be a practical solution for combatting the negatives of propensity evidence and creating a uniform application. Certainly, the requirement for a propensity free chain of logic is honorable and will combat the court’s current appearance of simply taking a party’s word for why the evidence is being offered in the first place. Unfortunately, despite the Seventh Circuit’s valiant attempt, Gomez will fail to create uniformity amongst the circuits, and any future attempt by a circuit to create

134 See FED R. EVID 105.

135 MICHAEL R. FONTHAM, TRIAL TECHNIQUE & EVIDENCE 358 (1st ed.1995).

136 Id. at 359.

137. Ian Volek, Federal Rule of Evidence 703: The Back Door and the Confrontation Clause, Ten Years Later, 80 FORDHAM L. REV 959, 975 (2011).

138 See Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) (“[T]he recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else.”).

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a new test will fail for similar reasons. For example, while the New Mexico District Court recognizes that the new rule by Gomez is “less a substantive modification than a shift in paradigm,” the Tenth Circuit cannot adopt the new line of reasoning.139 The decision in Gomez was decided en banc, and until the Tenth Circuit sits en banc themselves, they cannot abandon the current Supreme Court test set forth in Huddleston. 140 Therefore, despite the thorough effort by the Seventh Circuit to create a new uniform application of Rule 404(b), unless the Tenth Circuit sits en banc, their effort will fall short and the misapplication of the rule will continue.

Furthermore, “a propensityfree chain of logic” may lead tojust as many different interpretations as the courts are already facing with the existing application of the Rule. There is nothing to say that courts that engage in a liberal interpretation of Rule 404(b) do not already believe prosecutors are engaginginwhat theybelieveisa “propensityfreechainoflogic.”Moreover, a “propensity free chain of logic” is but another requirement that courts may differ in their interpretation as to what exactly the phrase means and requires. This requirement adds another potential roadblock to the already nonuniformly applied test. If the courts were to differ on another aspect of the requirements to Rule 404(b) it could potentially create a split amongst the circuits that are currently in agreement. Lastly, although Supreme Court review does not appear likely in the near future, by creating a new requirement, the Supreme Court may have reason to delay even longer so as to weed out all of the issues with the new requirement before resolving the matter.

Moreover, the Gomez solution would unrealistically require all circuit courts to both abandon their own interpretation of how they believe Huddleston should beinterpreted and applied andadopt the SeventhCircuit’s logic as superior. Although having an optimistic outlook is not necessarily a bad thing, more certainty is desirable when a uniform application could be the difference between going home and going to prison. While the Gomez test may not provide the solution the circuit courts need, this does not mean there is no hope to ever create uniformity amongst the courts.

B. The Supreme Court Will Not Resolve the Issue

Supreme Court review would be a reasonable solution for the heavy litigation involving Rule 404(b). However, it is impractical to wait around in hopesthattheSupremeCourtwilladdresstheissuewhilealackofuniformity

139. Leon v. FedEx Ground Package Sys., Inc., 313 F.R.D. 615, 626 (D.N.M. 2016) (quoting United States v. Gomez, 763 F.3d 845 (7th Cir. 2014)).

140 Id. Only an en banc court can overturn a decision of a prior panel and until that time, all Tenth Circuit courts continue to be bound by the Huddleston test. Id.

is creating unjust results for defendants in the criminal justice system. Supreme Court review is not always a necessity when dealing with circuit splits, but when a conflict between different circuits becomes abundantly clear, uniformity becomes an issue that must be rectified.141 Conflicts between circuits are not necessarily an evil within the judicial system, but rather have both good and bad qualities.142 On the positive side, by allowing district and circuit courts to disagree and weed out the issues of the law, the Supreme Court can make a decision on a refined issue based on the guidance of other judge’s decisions.143 On the negative side, delaying Supreme Court resolution to a circuit split could halt an issue of national importance or lead to uncertainty within the circuits.144 In terms of Rule 404(b)(2), a criminal defendant could be charged with the same crime in two circuits, and dependinguponthat circuitcourt’sinterpretationofRule404(b)(2),evidence may be admitted in one circuit and excluded in another. Patience in a judicial resolution may be desirable at times, but not when a resolution is critical or too extensive.145

Moreover, Supreme Court interventionis necessary because not only do circuit courts differ on the application of Rule 404(b), they differ on the standard of review in which to overturn a lower court’s decision.146 The four potential standards of review include: (1) abuse of discretion; (2) clear error; (3) substantial evidence; and (4) de novo.147 The typical standard applied to Rule 404(b) decisions is abuse of discretion, which is particularly problematic.148 Considering that Rule 404(b) is one of inclusion not and exclusion, the evidence will typicallyget in, and overturninga district court’s determinationwouldrequireovercomingextremedeferencetothe trialjudge. Another example of just how important it is to provide a solution to this pervasive issue of non-uniform application.

141 Wallace, supra note 61, at 925–926. Uniformity exists if a federal court has not confronted the issue, only one circuit has addressed the question, or multiple circuits have arrived at the same conclusion of the issue. Id. at 926.

142 Id. at 930.

143 Id. at 929.

144 Id. at 930.

145 Id. at 930

146 W. Chambers Waller IV, United States v. Clay: What Standard Should Be Applied When Reviewing Rule 404(b) Proper Purpose Determinations?,36 AM J.TRIALADVOC 351,357(2012). The First and Seventh Circuits have rejected de novo review while the Third and Ninth Circuits have applied de novo review. Id. at 362–64.

147 Id. at 355.

148 Id. at 357. The four standards of review each have a different level of deference given to the trial court, with the most deference being given to abuse of discretion. Id. at 355–56.

The Supreme Court encompasses many roles, including resolving circuit splits and advancing uniformity.149 While Supreme Court resolution would be a reasonable solution tothe issues surroundingRule 404(b), in light of the thirty years of non-uniformity, and being the most litigated of all the Rules, the Supreme Court has failed to act and is unlikely to do so anytime soon. Rule 404(b) appears to be a reasonable issue for the Supreme Court to resolve, just as any case involving an issue in which the circuits are split on is a prime candidate for Supreme Court review, even if the matter seems relativelyunimportant.150 Concededly, theCourt’sabilitytoreview all circuit splits is unrealistic due to their limited dockets.151 However, considering that Rule 404(b) is the most litigated issue on appeal of all the Rules, the issue is anything but mundane or unimportant. Yet the circuit courts have not received any clear guidance from the Supreme Court on their obvious disagreement in Rule 404(b)’s application.

Waiting for the Supreme Court to find the perfect case to hear on appeal is far from the most efficient or prompt solution, but if an amendment to Rule 404(b) is not adopted, it may be the only viable solution that remains. The split amongst the circuits has existed long enough to give the Supreme Court more than adequate guidance to formulate a new rule that can be properly applied, and the time may be nearing where the Supreme Court is left with no choice but to eventually hear the matter.

C. Amend the Federal Rules of Evidence

The most reasonable, effective, and efficient solution to the current lack of uniformity amongst the courts would be to amend the Federal Rules of Evidence. But before going into detail about the policy behind the current Federal Rules of Evidence and the proposed amendment, it is first important to understand how an amendment works and what must be done to accomplish this task.

1. The Process to Amend the Federal Rules of Evidence

To amend the Rules, it is necessary to quickly look at the process of making such an amendment. Congress has given the federal judiciary the power to prescribe the rules of evidence for federal courts, “subject to the ultimate legislative right of the Congress to reject, modify, or defer any of

149 Karen M. Gebbia, Circuit Splits and Empiricism in the Supreme Court, 36 PACE L. REV 477, 479 (2016).

150 Marybeth Herald, Reversed, Vacated, and Split: The Supreme Court, the Ninth Circuit, and the Congress, 77 OR L. REV 405, 431 (1998).

151 Id.

the Rules.”152 The authority to perform this action is found in the Enabling Act.153 The Judicial Conference has a duty to constantly study the operation and effect of the rules and may recommend amendments and additions to the Rules in order to better promote fairness, just determination, and simplicity in procedure.154 The Judicial Conference has authorized an Evidentiary Advisory Committee which gives recommendations to the Judicial Conference for proposed rule changes that are necessary to keep consistency and “promote the interest of justice.”155 The entire process to amend a rule generally ranges from two to three years and requires a seven-stage process that includes: (1) initial consideration by the advisory committee; (2) publication and public comment; (3) consideration of the public comments and final approval by the advisory committee; (4) approval by the standing committee; (5) judicial conference approval, (6) Supreme Court approval; and (7) congressional review.156 However, despite the general two to threeyear range to amend a rule, the process may be expedited if there is an urgency to do so.157

2. An Amendment is a Necessary Solution

The discrepancy in application amongst the circuit courts in regard to Rule 404(b) has made it necessary to amend the Federal Rules of Evidence. As the Rule is applied today, defendants throughout the country are suffering an immense injustice, based solely upon the jurisdiction in which they are being charged, despite the requirement that the Federal Rules of Evidence be applied uniformly.

Toconsiderjusthowdangerousthecurrentcircuitsplitis,ahypothetical situation may help put things into perspective. In situation one, John Doe is driving home from work, using his friend’s SUV for the day because his vehicle had broken down the night before. While driving home he was pulled over for speeding and throughout the exchange with the police officer probable cause is established to search the vehicle. Upon searching the vehicle, the police officer luckily stumbles upon a secret compartment and finds fifty pounds of marijuana. John Doe gets arrested for possession of marijuana with the intent to distribute and awaits his criminal trial.

152 James C. Duff, The Federal Rules of Practice and Procedure Administrative Office of the U.S. Courts, FED EVIDENCE REV (2010), http://federalevidence.com/pdf/FRE_Amendments/RuleProcess/Summary_RuleProcess.pdf [https://perma.cc/P3UR-949M]

153 Id. (citing 28 U.S.C. §§ 2071–2077).

154. Id.

155 Id. (quoting 28 U.S.C. § 2073(b)).

156 Id.

157 Id.

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In situation two, the facts are nearly identical, however, this time John Doe is driving his own vehicle and the fifty pounds of marijuana are found in plain sight in the back of the SUV. In both situations, John Doe was convicted ten months prior for possession of less than two ounces of marijuana. If the purpose of the Rules were upheld, whether the prior conviction was admissible would be the same no matter which federal jurisdiction John Doe was prosecuted in. Unfortunately, as discussed below, this is not the reality.

Whether or not the prior conviction is admissible under Rule 404(b) depends entirely upon which federal circuit the defendant is charged and prosecuted in. For this example, let us assume John Doe was charged for possession of marijuana with the intent to distribute based on situation one in a district in which the Seventh Circuit was binding. In order for the prosecution to present evidence based on his previous conviction, the government would have to provide a propensity free chain of logic to satisfy Rule 404(b) before the evidence would be admissible.158 This could be a rather daunting test considering a charge for possession of less than two ounces of marijuana would hardly equate to a tendency to prove intent or motive or any other permissible purpose to distribute a large quantity of marijuana.

The prosecution’s attempt to have a jury find the defendant guilty in situation one in the Seventh Circuit would be difficult considering it was not his vehicle, he had only been driving it for the day, and the marijuana was in a secret compartment. In fact, the prior possession of marijuana conviction might be the only link the prosecution has between the defendant and marijuana. Under the Seventh Circuit’s approach, not only would the government bear the burden to say that the evidence is being offered to show intent or some other permissible purpose, they would actually be required to articulate the logic that shows the honest purpose for offering the evidence is nottohavecharacterevidenceadmitted.159 Thisisahighhurdletomeetunder the facts.

If still in the Seventh Circuit the relevant facts were those of situation two, the government would have a significantly better opportunity to provide the propensity free chain of logic due to the ownership of the vehicle and access to the drugs, but nevertheless, would likelyfindit difficult articulating how possession of less than two ounces of marijuana would be connected to an admissible purpose.Therefore, whilethere is a higher chancethe evidence wouldbeadmissibleunderthesecondscenario,theevidencewouldnotlikely get in under either scenario.

158 See United States v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014).

159 Id.

On the other hand, regardless of whether John Doe was arrested under the circumstances of situation one or two in a district where the Tenth Circuit test wasbinding,thegovernment wouldalmost haveanautomaticadmittance of the evidence. The government could provide a mere recitation of a permissible purpose, and that alone may be sufficient to allow the government to present the evidence.160 While the other prongs of the test remain, as shown by the reasoning in the cases above, when a recitation of a permissible purpose is stated by the prosecution, the court spends little time considering the remaining safeguards.

In other words, the same crime, involving the same evidence, based upon the exact same Federal Rule of Evidence will allow one defendant to exclude the prior conviction while the other defendant will not have such a right. Moreover, such a blatant discrepancy goes beyond simply losing a ruling on an objection, rather, it may be the difference between prison and freedom. A court’s decision on whether to admit the evidence or not may be the difference between a jury deciding based on the facts of the case at hand versus a decision being made based on the logic that if you have ever been involved with marijuana, your life will always involve marijuana and you are a criminal that should be punished. Under the Tenth Circuit application, the fact that a defendant was arrested for less than two ounces of marijuana may result in a future conviction for intent to distribute fifty pounds of marijuana, yet under the Seventh Circuit, the same defendant would likely walk away as a free person. The logic that put the Rule into existence is under attack and is now allowing the admission of the evidence it was expressly designed to prevent from ever reaching a juror’s ears.

D. The Amended Rule 404(b)

The original purpose for creating Rule 404(b) was to address major policy concerns.161 These policy concerns can be broken down into two distinct categories.162 The first policy consideration is to ensure that a jury convicts a defendant because of his actual guilt in the charge he is currently on trial for, not convict a “bad person” that should be punished because of a misdeed he committed earlier in his life.163 The second major policy consideration is to ensure that a jury does not reach the conclusion that if you committed a crime once, you are more likely to commit a crime again.164

160 See generally United States v. Zamora, 222 F.3d 756 (10th Cir. 2000).

161 See United States v. Lucas, 357 F.3d 599, 611–12 (6th Cir. 2004) (Rosen, J., concurring).

162. GLEN WEISSENBERGER, WEISSENBERGER’S FEDERAL EVIDENCE § 404.12 (3d. ed. 1998).

163 Id. 164 Id.

2018] CREATING UNIFORMITY WITH RULE 404(B) 529

Neither one of these concerns are being properly addressed with the current rule of inclusion, and a change must occur if a defendant is to receive the protection the common-law rule was developed to protect.

To combat the misapplication of a rule that has become the most litigated rule of all the Rules, Rule 404(b) must be amended to require a quasi-reverse balancing test. The quasi-reverse balancing test must become a part of the Rule itself and not simply an additional consideration after determining that Rule 404(b)(2) is met. This amendment must make the quasi-reverse balancing test a part of the Rule itself so as to ensure it is not treated the way Rule 403 is currently applied with respect to Rule 404(b).

The quasi-reverse balancing test would require that before a court could admit evidence of prior crimes, wrongs, or other acts under 404(b)(2) the probative value must outweigh the risk of unfair prejudicial effect, confusing the issues, wasting time, cumulative evidence, or undue delay.165 At first glance, this mayappearto be in direct opposition of thecurrent Federal Rules of Evidence and seek to do away with Rule 403, but that is not the case. Rather, this solution would create only somewhat of a reversal of the current testsbeingappliedthat simplylooktoRule403,requiringtheprobativevalue be substantially outweighed by the risk of unfair prejudice before it is excluded. Such an amendment is not in opposition to the current Rules and would resemble rules that are already in existence to combat propensity evidence.166 Moreover, by requiring a quasi-reverse balancing test, the policy behind the Rule would become clearer, which is more likely to influence a judge’s ruling than simply changing the form of the Rule.167 Lastly, unlike a newrequirementtoprovidea“propensityfreechainoflogic,”aquasi-reverse balancing test is something all federal courts are accustomed to dealing with.

168

Although Rule 404(b) is a rule of inclusion rather than exclusion, requiring the probative value to only outweigh, as opposed to substantially outweigh the prejudicial value, does not take the Rule to the opposite side of the spectrum exclusion. Furthermore, Rule 404 is no stranger to amendments, as it has been amended four times, showing the need for evolution in such an important Rule.169 The Federal Rules of Evidence are

165 See FED R. EVID 403.

166 See FED R. EVID 412(b)(2) (“Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition”); see also FED R. EVID 609(a)(1)(B) (“Impeachment by Evidence of a Criminal Conviction”).

167 See GRAHAM, supra note 10, §5237.

168 See FED R. EVID. 609(a)(1)(B) (describing a reverse balancing test for a felony crime in a criminal case in which the witness is a defendant).

169 See Legal Info. Inst., Rule 404. Character Evidence; Crimes or Other Acts, CORNELL LAW SCH., https://www.law.cornell.edu/rules/fre/rule_404 [https://perma.cc/9CNS-563J] (last visited Nov. 1, 2018).

heavily based upon policy considerations and it is time for the Rules to consider the necessity of an amendment in light of the current injustices at hand.

While an amendment may appear to be an obvious solution to what is conceded as the most heavily litigated Federal Rule of Evidence, the reason an amendment may not have been passed could be explained by the heavy pressure to move the Rule in the opposite direction of this Comment’s proposal.170 The reason behind the lack of amendments to address the apparent issue becomes more clear when considering the Justice Department’s campaign, not to simply make the rule clearer in their favor, but to repeal the rule and implement a new rule that admits criminal history for the purpose of drawing inferences as to a person’s conduct.171 Such a proposed rule would expose defendants to all the risks associated with propensity evidence and provide no protections to combat the prejudice. This campaign would explain the Advisory Committee’s choice to leave the Rule in its confusing state, despite poorly reasoned opinions and the lack of consistent analysis of the available literature regarding the Rule.172 Although this may be a viable explanation, it is not one that can be tolerated when justice is the victim.

1. The Proposal in Comparison to Existing Rules

Looking to the Federal Rules of Evidence already in existence, this proposal does not stray from rules already in place. Rule 609(a) is used to determinewhether evidencethat attacksawitness’scharacterfortruthfulness based on a prior criminal conviction is admissible.173 Rule 609(a)(1)(B) is a protective rule that allows the evidence against a criminal defendant only if the probative value outweighs the prejudicial harm to the defendant 174 The language of Rule 609(a)(1)(B) mirrors the language that should be used in an amendment to the current Rule 404(b). This language is contrary, but not in direct conflict, to the standard Rule 403 balancing test that looks to see if the probative value is substantially outweighed by the risk of unfair prejudice.175 TheRulespecificallytakesintoaccountthedangerofajurybeingimproperly influenced and deciding to convict a defendant, not based on guilt for the charged crime, but based on their prior criminal acts.176 Furthermore, it puts

170 GRAHAM, supra, note 10, §5237.

171 Id.

172 Id.

173. FED. R. EVID. 609(a).

174 FED R. EVID 609(a)(1)(B).

175 FED R. EVID 403.

176 FED R. EVID. 609; see also H.R. REP NO 93-1597, at 39939-40 (1974).

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the burden on the party offering the evidence to show that value gained from the evidence outweighs any harmful effects it may cause. This is different from Rule 403, which puts the burden on the opponent to show the risk of unfair prejudice substantially outweighs the probative value.177

These are the same policy considerations the drafters faced when drafting Rule 404(b). These same policy considerations, as well as the risk of prejudice a defendant will face with a rule of inclusion rather than exclusion, must be considered when looking to 404(b). Just as Rule 609 has a built-in protective measure to ensure the policy behind the Rule is upheld, Rule 404(b) must do the same.

The similarities between the proposed amendment and existing rules do not stop at Rule 609. According to Rule 412(b)(2), in a civil trial involving sexual misconduct, evidence in which the relevance is propositioned on a victim’s prior sexual behavior or predispositions will only be admitted by the court if the “probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.”178 The Committee recognized that the law is always changing, and by creating a reverse balancing test, it would accommodate the ever-changing causes of action for sexual harassment.179

Once again, the Rules have expressly deviated from the standard Rule 403 balancing test and provided additional protections by shifting the burden to the party who offers the evidence, as opposed to burdening the party who asserts the objection. Just as Rule 412(b)(2) seeks to accommodate the everchanging causes of action for sexual harassment, the proposed amendment to Rule 404(b) seeks to accommodate the ever-increasingdifficulty to apply the Rule uniformly amongst the circuits. While this embedded protection applies only for civil trials as opposed to criminal, Rule 404(b) applies to civil and criminal charges and the rationale behind Rule 412(b)(2) is relevant to Rule 404(b).

Rule 412(b)(2) demonstrates the Rule’s willingness to deviate from the standard balancing test to protect important public policy principles. Rule 412(b)(2) was revised in 1994 and it sought to ensure that evidence would be barred that related to an alleged victim’s sexual behavior or predispositions.180 Such evidence would be barred regardless of its purpose unless the proponent could show that the probative value substantially outweighed any potential harm to the victim.181 The purpose for such protection was to promote the public policy that a victim should feel

177 FED R. EVID. 403.

178. FED. R. EVID. 412(b)(2).

179 FED R. EVID 412 advisory committee’s note to 1994 amendment

180 Id.

181 Id.

encouraged and protected in their decision to participate in and initiate legal proceedings against alleged offenders.182 Admittedly, the Rule 404(b) proposed amendment differs in public policy reasoning, but the overall purpose to promote public policy remains consistent with the purpose behind existing amendments.

For there to be any realistic chance of a proposed amendment being adopted, finding a reasonable medium between the current Rule and the opposite side of the spectrum is ideal. As the Rule stands now, it is one of inclusion, not exclusion, and the party asserting the objection bears the burden to show that the risk of unfair prejudice substantially outweighs the probative value. To propose the Rule be completely turned on its head to become one of exclusion and now require that the government bear the burden to show the probative value substantially outweighs any risk of unfair prejudicewouldlikelybemet withtoomuchoppositionandresultinaslower process to implement the amendment, if it were amended at all. This is especially true considering the campaign that is trying to eliminate the Rule in its entirety. While it may be unreasonable to propose a complete reverse balancing test, a quasi-reverse balancing test, as used in Rule 609(a)(1)(B), will provide the necessary reasonable alternative to ensure that the purpose of the amended rule is still accomplished.

The application of Rule 404(b) already resembles Rule 412 and Rule 609 and would not be too far of a stretch to implement the proposed amendment. Rule 404(b) was previouslyamended in 1991 to include a notice requirement, and the Committee expressly recognized that it would resemble Rule 412 and Rule 609.183 This proposed amendment would simply expand on what the Rules have already done. Therefore, further amending Rule 404(b) to resemble Rule 412 and Rule 609 would not require the Committee to step outside of their comfort zone in terms of what they have already shown comfort in doing.

As discussed above, the Rules are not shy when it comes to departing from the standard Rule 403 balancing test, especially when the policy considerations are strong. After all, the Judicial Committee is supposed to suggest amendments when “fairness in administration” , “just determination of litigation”, and “simplicity in procedure” are possible outcomes of the amendment.184 While the circuit courts continue to differ in their approaches and attempts to apply a uniform application of Rule 404(b), little progress is being made. In the meantime, the different application of the same Rule is

182. Id.

183 F

184 Duff, supra note 152.

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ED R.EVID 404 advisory committee’s note to 1991 amendment (discussing the pretrial notice requirement of Rule 404(b) and how it would resemble that of Rule 412 and Rule 609).

failing to provide equal justice to similarly situated individuals. A defendant prosecuted in the Northern District of Illinois may be able to exclude evidence and obtain a verdict of not guilty and go home to his family. On the other hand, a defendant prosecuted in the Southern District of Texas may be charged with the exact same crime under the exact same circumstances, and yet be sentenced to prison.

This result would not be the outcome of different experiences and ways of thinking amongst jurors from different parts of the country, rather, the difference is in the fact that the Illinois defendant would be successful in excluding certain evidence that the Texas defendant would not be able to exclude despite the same laws applying to both defendants. Such disproportionate justice to similarly situated individuals should not be tolerated and are the exact types of injustices in which an amendment is meant to correct.

The attempts by the courts to apply a uniform application have failed, and they have had nearly thirty years to perfect their application. An amendment to Rule 404(b) would not be necessary had the Supreme Court resolved the issue, but instead, it has sat idly by and not intervened while the circuitsdisplayanobviousdivergenceintheRule’sapplication.WhileaRule 403 balancing test is not the only protection provided by the circuit courts, otherprotections,suchaslimitinginstructions,havebeenshowntohavelittle effect on deterring the unfair prejudice a defendant may receive. To truly alleviate this injustice and provide adequate protection, the Rules must be amended to place the burden on the proponent to show that the probative value outweighs the risk of unfair prejudice to the defendant.

The duty of the Judicial Conference is to constantly study the operation and effect of the Rules and recommend amendments to better promote fairness, just determination, and simplicity in procedure, which is precisely why Rule 404(b)(2) would be the prime candidate for amendment as it fits squarely into all three factors.185 What could be more urgent than similarly situated individuals receiving entirely different outcomes in their criminal trial because of a difference in the application of a rule meant to be applied uniformly amongst the federal courts? To ensure that justice is distributed equally amongst all the courts and to rectify the current divergence in its application, the Rule must be amended promptly.

2. The Effects of Amending Rule 404(b)

A noble effort was made by the Seventh Circuit in Gomez, but the attempt will fail to unify the circuit and district courts’ application of Rule

404(b). On the other hand, the proposed amendment will create uniform application amongst the courts, thereby creating an equal opportunity to justice for all individuals under the federal court system. Moreover, it will continue to allow prosecutors to offer evidence of prior wrongs in the proper circumstances and will eliminate reliance on the false security of a limiting instruction.

The proposed amendment requiring a quasi-reverse balancing test will eliminate the degraded Rule that no longer serves the purpose for which it was created. The high admittance rate that seems to be almost automatic will no longer occur.186 By requiring the proponent of the evidence to establish that the probative value of the evidence outweighs the riskof unfair prejudice to the defendant, the proponent will now have to articulate their logic as to whythe evidenceissocritical toestablishoneof their permissibleexceptions of character evidence. Although a different solutiontothe same problem, this amendment will in effect accomplish the purpose Gomez set out to accomplish.

Realistically, if an amendment to the Rule were to be implemented it would inevitably be met with heavy opposition from federal prosecutors. Prosecutors have had a right to introduce certain prior bad acts evidence in an effort to prove their case since the inception of the Rule. An amendment will tip the scales in the opposite direction and now require the prosecutor to show just how imperative the evidence is. If the evidence is truly that crucial and in conformity with the Rule 404(b) requirements, then it will still be admitted, but the days of using “magic words” to have the evidence admitted will be put to an end. While the amendment itself does not preclude prior bad acts evidence, prosecutors will be met with a fierce challenge ahead of them to meet the new heightened burden. However, making one’s job more difficult is hardly a justifiable reason to ignore the public policy for which a rule was created in the first place.

Prosecutors will be required to prove their case in chief based on the facts of the current charge. Evidence that was on the brink of being inadmissible under the current tests will no longer reach the jury’s ears. The days of sly gamesmanship in an attempt to prejudice a jury into an improper conclusion once a criminal always a criminal are over. Although it is conceded that the amendment will make the job of a prosecutor more difficult, the benefit of such an amendment substantially outweighs the risk of prejudicial effect to federal prosecutors and therefore Rule 404(b) must be amended.

186 See United States v. Miller, 673 F.3d 688, 699 (7th Cir. 2012).

2018] CREATING UNIFORMITY WITH RULE 404(B) 535

IV. CONCLUSION

An amendment to Federal Rule of Evidence 404(b) willfinallysolve the nearly thirty-year problem that has plagued the courts and civil and criminal defendants alike. Instead of waiting for the impractical solution of the Tenth Circuit Court of Appeals to sit en banc onthe issue, andall of the other courts to adopt the Seventh Circuit’s approach, the amendment will allow the court to apply a rule they are familiar with.

WhiletheSupreme Court mayprovidea viablesolution, the amendment will avoid the possibility of further confusion of a new test by simply replacing the test with one the courts have effectively applied throughout the years, a quasi-reverse balancing test. The purpose of an amendment is nothingmorethantorestoreRule404(b)andensureit providestheprotection is was created to provide from the beginning. Therefore, to ensure uniformity and equal justice for all, Federal Rule of Evidence 404(b) must be amended.

DURESS AND THE MATERIAL SUPPORT BAR IN

ASYLUM LAW: FINDING EQUITY IN THE FACE OF HARSH RESULTS

JOHN FLUD†

I. INTRODUCTION 538

II. U.S. ASYLUM LAW AND THE MATERIAL SUPPORT BAR: THE

LEGAL FRAMEWORK 539

A. International Foundations and the Basic Requiremets for Obtaining Asylum Status 539

B. Statutory Bars to Asylum and the Material Support Bar 541

C. Defining a “Terrorist Organization” 542

D. What Constitutes “Material Support”: A Look at Case Law 544

E. The Legislative History of the Material Support Bar ...............549

III. DURESS: THE MATERIAL SUPPORT BAR IN CASES INVOLVING

DURESS...........................................................................................551

A. Defining Duress ......................................................................552

B. An Implied Exception for Duress: Matter of M-H-Z..............553

IV. THE WAIVER PROVISION: THE EXECUTIVE POWER TO WAIVE

TERRORISM-RELATED BARS..........................................................555

A. The INA Provision for Executive Waiver................................555

B. The Duress Waiver..................................................................557

V. FRUSTRATION WITH THE WAIVER PROVISION: CHALLENGING

THE CURRENT WAIVER FRAMEWORK............................................558

VI. LEGISLATIVE, EXECUTIVE, AND JUDICIAL REMEDIES ...................564

A. Legislative Remedy .................................................................564

B. Executive Remedy ...................................................................

C. Judicial Remedy......................................................................566

VII. CONCLUSION ..................................................................................567

† I would like to recognize and thank the following people: My grandmother, Rosetta Flud, my parents, Roger and Julie Flud, and my sister, Gabrielle Flud, for their tremendous support through the years; my two wonderful children, Connor and Chloe Flud, who bring joy into my life; Professor Scott Rempell for his expertise, guidance, and revisions to this work.

I. INTRODUCTION

In asylum law, even if a person has otherwise met the requirements to obtain asylum relief, that person is barred from asylum relief if he or she has provided material support to aterrorist organization.This bar toasylumrelief is referred to as the “material support bar.” Over the years, there have been many cases in which asylum applicants have provided support to a terrorist organization because they, their family, or their livelihood were seriously threatened by the terrorists. In other words, they provided the support under duress. Nonetheless, as the law stands, such people are barred from obtaining asylum relief, even under these circumstances.

The United States Congress has tried to temper this harsh result by providing a process whereby an otherwise barred applicant may receive a waiver from the Department of Homeland Security (DHS). However, this waiver process including its oversight, procedure, and implementation has been criticized by many as being inefficient and ineffective at granting relief to deservingapplicants.Thefrustration withthiswaiver process hasled asylum applicants to challenge the material support bar and the waiver procedure in different ways. One way applicants have attempted to avoid the application of the material support bar is by challenging the definition of “material” in “material support.” This has led to congressional and judicial refinement of what constitutes “material” support and has been of little help to applicants as the materiality threshold is incredibly low.

Another way applicants who have provided material support to a terrorist organization under duress have attempted to circumvent the bar is by asking the courts to read an implied duress exception into the statute. Federal circuit courts and the Board of Immigration Appeals (BIA) have declined to do this, instead finding that it does not appear to be in line with congressional intent. Other applicants have challenged the material support bar and waiver process on procedural grounds, claiming that the process is legally flawed. This challenge, too, has failed to create any meaningful change for the better.

This Comment posits that the current legal structure of the material support bar and the executive waiver process is creating inequitable results and needs to be modified through some form or combination of legislative, executive, or judicial action. Part II will lay the legal groundwork for the rest of the Comment by discussing the basic statutes and definitions at work in asylum law and in the material support bar. Part II will include a look at case law to show how the material support bar is applied and what constitutes “material” support. Part II will also include a brief description of the legislative history of the material support bar.

Part III of this Comment will discuss duress and the application of the material support bar in cases where the applicant provided the support under duress. This part will look at the possibility of an implied duress exception existing within the material support bar and analyze a recent BIA case denying the existence of an implied duress exception. Part IV of this Comment will discuss the congressional provision of awaiver of the material support bar under certain circumstances, including the statute, administrative regulations, and procedures involved with the waiver process. Part V will explain and explore the problems associated with the waiver process and procedure and look at how the waiver provision has been challenged by applicants. Part VIwill propose and analyze remedies available through each branch of government with a respect for the constitutional doctrine of the separation of powers. Part VII will conclude with a call to adapt our laws in this area to provide for a better balance between humanitarian and national security values.

II. U.S. ASYLUM LAW AND THE MATERIAL SUPPORT BAR: THE LEGAL FRAMEWORK

A. International Foundations and the Basic Requirements for Obtaining Asylum Status

UnitedStates asylumlaw provides aformof immigration statusorrelief for aliens within the UnitedStates who have suffered, or probablywill suffer, persecution if they return to their home country.1 If an alien successfully obtains asylum status, he or she does not have to return to his or her home country and is afforded certain legal rights and benefits within the United States.2

U.S. asylum law is derived from international refugee law, which developed slowly over years in response to global events of human flight or displacement caused by war, persecution, and serious human rights violations.3 The major sources of international law underlying U.S. asylum law are the 1951 United Nations Convention Relating to the Status of Refugees4 (“Refugee Convention”) and the 1967 United Nations Protocol

1 Teresa Pham Messer, Barred from Justice: The Duress Waiver to the Material Support Bar, 6 HOUS L. REV 63, 65 (2015).

2 Id. at 65–66.

3. KAREN MUSALO ET AL., REFUGEE LAW AND POLICY: A COMPARATIVE AND INTERNATIONAL APPROACH 3 (4th ed. 2011).

4 See U.N. Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S., http://www.unhcr.org/3b66c2aa10.html [https://perma.cc/6XN4-PEWA].

540 SOUTH TEXAS LAW REVIEW [Vol. 59:537

RelatingtotheStatusofRefugees(“RefugeeProtocol”).5 Together,thesetwo international treaties define who is a “refugee” and outline the legal protections refugees should receive by countries that are signatories.6 The United States signed the Refugee Protocol, making an international commitment to conform its immigration laws to that of the Refugee Convention and the Refugee Protocol.7 In keeping with this international commitment, Congress enacted the Refugee Act of 1980 (“Refugee Act”).8 The Refugee Act, as amended and interpreted over the last three decades, provides the substantive requirements that asylum applicants must fulfill in order to obtain asylum relief.9

Under the Refugee Act, in order to obtain asylum status, an applicant must satisfy the definition of a “refugee.”10 “Three core elements comprise the refugee definition: a well-founded fear of persecution, a nexus between the harm and a protected ground, and government involvement or abdication to the harm.”11 Thus, asylum applicants must prove that if they are removed to their home country they will suffer sufficient harm (amounting to persecution) on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that the government of their home country is unable or unwilling to protect them from this harm.12

Aliens who are granted asylum may legally remain (live) in the United States.13 They are authorized to work and can obtain a social security card.14 Additionally, they may request derivative asylum status for their spouse and/or children, which, if granted, would allow their wife and children to live in the United States with them.15 After one year in the United States as an asylee, an alien may apply for lawful permanent residence (a green card).16

5. ProtocolRelatingtotheStatus of Refugees, opened for signature Jan.31,1967,19U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Nov. 1, 1968).

6 Messer, supra note 1, at 66.

7 Scott Rempell, Asylum Discord: Disparities in Persecution Assessments, 15 NEV L.J. 142, 149 (2014).

8. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 U.S.C.).

9 Rempell, supra note 7, at 149; see 8 U.S.C. § 1101(a)(42)(A)–(B) (2012) (giving the statutory definition of “refugee” and thus the elements an asylum applicant must satisfy to be designated a “refugee”).

10 See 8 U.S.C. § 1158(b)(1)(A).

11 Rempell, supra note 7, at 149; see also 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b)(1), (b)(2)(i) (2018).

12 See 8 U.S.C. § 1101(a)(42)(A); Messer, supra note 1, at 66.

13 U.S. Citizenship and Immigration Servs., Benefits and Responsibilities of Asylees, https://www.uscis.gov/humanitarian/refugees-asylum/asylum/benefits-and-responsibilities-asylees (last updated July 14, 2015) [https://perma.cc/88MB-HM4N].

14 Id 15 Id 16 Id

Afterfive yearsas a greencardholder,thealienmaythen seeknaturalization, becoming a citizen of the United States.17 Thus, asylees are given a path to U.S. citizenship.

B. Statutory Bars to Asylum and the Material Support Bar

Even if an asylum applicant meets the definition of a refugee, there are several independent grounds on which the applicant may nonetheless be excluded from asylum relief.18 These grounds are often referred to as statutory bars to asylum, and include things such as persecuting others, committing serious human rights or criminal law violations, posing a risk to thesecurityoftheUnited States, orinvolvingwith terrorist activity.19 Among these statutory bars are bars related to involvement in or with terrorist activity, or terrorism-related bars to relief.20 Under 8 U.S.C. Section 1158(b)(2)(A)(v), a person cannot obtain asylum relief if they are “described in subclause (I), (II), (III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this title . . .”21 The U.S.C. Section (1182) and subclauses (I, II, III, etc.) referenced above describe the circumstances under which an alien is inadmissible as a refugee because he or she has been involved with “terrorist activities” in some way.22 Under 8 U.S.C. Section 1182(a)(3)(B)(i)(I), an alien is ineligible to be admitted to the United States (inadmissible) when he has “engaged in a terrorist activity.”23 Under 8 U.S.C. Section 1182(a)(3)(B)(iv)(VI), the term “engage in terrorist activity” means, inter alia:

[T]o commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

17. .U.S. Citizenship and Immigration Servs., Path to U.S. Citizenship, https://www.uscis.gov/us-citizenship/citizenship-through-naturalization/path-us-citizenship (last updated Jan. 22, 2013) [https://perma.cc/7ENX-XZUW].

18 See 8 U.S.C. § 1158(b)(2) (2018); Messer, supra note 1, at 67.

19 See 8 U.S.C. § 1158(b)(2); MUSALO ET AL., supra note 3, at 821–22.

20 See 8 U.S.C. § 1158(b)(2)(A)(v).

21. Id

22 See id § 1182(a)(3)(B)(i).

23 See id § 1182(a)(3)(B)(i)(I).

(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or

(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.24

Hence, under this bar, if an alien provides support (safe house, transportation, funds, etc.) to a terrorist organization or activity that alien is considered to have “engaged in terrorist activity.” This particular terrorismrelated bar to admission is referred to as the “material support bar.” Under 8 U.S.C. Section 1158(b)(2)(A)(v), this material support bar is extended to those applying for asylum relief.25

The material support bar does contain a knowledge component the actor must “know[], or reasonably should know . . . .” that he or she is providing the support.26 However, courts have interpreted this to require only that the alien knew he or she was rendering material support to the recipient of the support, not to the terrorist organization which was the recipient of the support.27 For this knowledge requirement to be met, the alien does not have to know the support is being used for terrorist activities, or that the support is being provided to a terrorist organization.28 Furthermore, the alien’s intent why he or she provided the support does not factor into the court’s analysis at all.29 This knowledge requirement is easily met in almost all cases. The alien’s testimony that the support was provided, which is usually the whole reasonthematerialsupportbar arisesinthefirst place,isenoughtheestablish it.30

C. Defining a “Terrorist Organization”

Most the time, the material support bar arises when an alien has provided some sort of support to a “terrorist organization.” Section 1182(a)(3)(B)(vi) of Title 8 of the U.S.C. defines “terrorist organization.” A “terrorist organization” means an organization:

(I) designated under section 1189 of this title;

(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the

24 Id § 1182(a)(3)(B)(iv)(VI) (emphasis added).

25. Id § 1158(b)(2)(A)(v).

26 Id § 1182(a)(3)(B)(iv)(VI).

27 See Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 128–31 (2d Cir. 2009).

28. Id at 129.

29 Id

30 Id

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Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of clause (iv); or (III) that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).31

These three categories of terrorist organizations are referred to as “tiers.” Tier I organizations are those the Secretary of State has designated by name as terrorist organizations by following the requirements and procedures outlined in 8 U.S.C. Section 1189 (Designation of foreign terrorist organizations).32 Tier II terrorist organizations are those “otherwise designated”bytheSecretaryofState,inconsultationwithorupontherequest of the Attorney General or the Secretary of Homeland Security.33 Providing material support to one of these designated terrorist organizations, whether Tier I or II, is a strict liability offense. An alien does not have to know the recipient or the organization is a designated terrorist organization, and the alien’s reason for providing the support does not matter.34

Tier III terrorist organizations are undesignated terrorist organizations. They are not specifically named and published by the Secretary of State like Tier I and II organizations. A Tier III organization can consist of any “group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” certain enumerated terrorist activities.35 Under this provision, power is vested in immigration judges and asylum adjudicators to determine, in their own discretion, whether an “organization” or group constitutes a Tier III terrorist organization.36 This determination is made at the time the asylum application is being adjudicated, and it only applies for purposes of immigration law.37 The Tier III definition is

31 8 U.S.C. § 1182(a)(3)(B)(vi)(I)–(III).

32 See id § 1189. A complete list of Tier I organizations can be found on the U.S. Department of State website at https://www.state.gov/j/ct/rls/other/des/123085.htm [https://perma.cc/B9B4-8H2J].

33 Id. § 1182(a)(3)(B)(vi)(II).

34. See id. § 1182(a)(3)(B)(iv)(VI)(cc) (lacking a knowledge requirement or a knowledge “exemption” like support for Tier III organizations).

35 Id. § 1182(a)(3)(B)(vi)(III).

36. See Anwen Hughes, Human Rights First, Denial and Delay: The Impact of the Immigration Law’s “Terrorism Bars” on Asylum Seekers and Refugees in the United States, 21 (2009), https://www.humanrightsfirst.org/wp-content/uploads/pdf/RPP-DenialandDelay-FULL111009-web.pdf [https://perma.cc/DCA7-92YF] [hereinafter HRF Denial and Delay Report] (“There is no central control over the application of [the Tier III] definition, which is triggered simply by an individual adjudicator’s assessment that the group or some subgroup within it has engaged in the use of armed force.”).

37 See id. at 3, 5 (noting that a “Tier III” organization is a group designated as a terrorist organization solely for purposes of immigration law and that any group can become a Tier III group

retroactive asylum seekers who were at one time involved with groups that have now given up violence or no longer exist still face the material support bar.38 Unlike Tier I and II, support for Tier III organizations does have a separate knowledge requirement;39 however, the burden of proving a lack of knowledge rests with the applicant.40 Once support for a Tier IIIorganization has been established, an asylum applicant can overcome the bar by demonstrating“byclear and convincingevidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.”41 Again, the alien’s reason for providing the support does not matter here.

D. What Constitutes “Material Support”: A Look at Case Law

The Immigration and Nationality Act (“INA”) and its related federal regulations do not define “material support.” However, in 8 U.S.C. Section 1182(a)(3)(B)(iv)(VI), the INA does offer a non-exhaustive list of what it includes, such as providing a “safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training.”42 Moreover, the U.S. Department of State webpage listing the designated terrorist organizations points readers to 18 U.S.C. Section 2339A(b)(1) for a definition of “material support or resources” as it refers to the criminal offense of providing material support to terrorists.43 While this definition does not apply to the material support bar under the INA, and is not binding on immigration judges, it does shed more light on what the phrase means. It states that the term “material support or resources” means

[A]ny property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more

“when some immigration adjudicator, somewhere, says that it is,” with no public announcement required).

38 See id. at 27 (providing an example of an Afghan asylum seeker whose application was blocked by DHS after he revealed that, as a young child in the 1980s, he assisted a group that was allied with the United States in opposing the Soviet occupation of Afghanistan).

39 See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).

40. Id.

41 Id.

42 Id. § 1182(a)(3)(B)(iv)(VI).

43. U.S. DEP’T OF ST., Foreign Terrorist Organizations, https://www.state.gov/j/ct/rls/other/des/123085.htm (last visited Nov. 12, 2017) [https://perma.cc/N7CT-N453].

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individuals who may be or include oneself), and transportation, except medicine or religious materials . . . . 44

While these lists and definitions are helpful, and provide guidance to adjudicators, ultimately what constitutes “material support” is open to judicial interpretation and is decided on a case-by-case basis.45

Although the statute imposes a threshold materiality requirement for support rendered, courts have found that even minor support implicates the bar.46 In Barahona v. Holder, the Fourth Circuit upheld the determination of the BIA that the petitioner was ineligible for relief from removal because he provided material support to a terrorist organization.47 In Barahona, the petitioner testified that during a civil war in El Salvador, anti-government guerillas occupied his city.48 For nearly a year, guerillas took over his home, “using it as their needs arose, mainly for preparing food in its kitchen, but occasionally sleeping overnight when the weather was unfavorable.”49 The petitioner testified that during this time about two hundred guerillas “utilized the water and cooking facilities of his home, but always brought their own food[,]” and that “[o]n several occasions, [petitioner] gave the guerrillas directions through the jungle to other locations.”50 The Immigration Judge (“IJ”) found the petitioner ineligible for relief from removal because material support included providing a “safe house”51 for terrorists, and in allowing the terrorists to use his kitchen for nearlya year he had provided material support to a terrorist organization.52 The BIA upheld the “IJ’s conclusion that [petitioner]’s support was material, and agree[d] that there is no exception in the Material Support Bar for de minimis activities on behalf of a terrorist organization.”53 In a published opinion denying the petition for review, the Fourth Circuit upheld the removal order against the petitioner.54

Another example of a court finding material support had been provided is Singh-Kaur v. Ashcroft. 55 In Singh-Kaur, the Third Circuit upheld a BIA

44 18 U.S.C. § 2339A(b)(1) (2018).

45 Carrie Rosenbaum, The Expansive Application of the Terrorism-Related Grounds of Inadmissibility and the Need for Comprehensive Legislative Reform, 2010 EMERGING ISSUES 5427 (2010).

46

DEBORAH E. ANKER, LAW OF ASYLUM IN THE UNITED STATES § 6:27 (2018).

47. Barahona, 691 F.3d at 351. The petitioner in this case was actually seeking relief under the Nicaraguan and Central American Relief Act of 1997 (“NACARA”), which allows the Attorney General to cancel the removal of an alien who is inadmissible or deportable from the United States if the alien satisfies certain criteria. Id.

48 Id.

49 Id.

50. Id. at 352.

51 See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2018).

52 Barahona, 691 F.3d at 352.

53. Id. at 353.

54 Id. at 351.

55 Singh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004).

decision finding petitioner inadmissible because he had provided material support to a terrorist organization.56 The petitioner, a native of India, testified that he helped members of Indian guerrilla organizations by setting up tents for religious services to be conducted and providing the guerillas with food.57 The BIA held that these actions constituted material support, stating that “the described actions, of offering food and helping to arrange shelter for persons, constitute ‘material support,’ as contemplated by section 212(a)(3)(B)(iii) of the Act.”58 In its analysis of the BIA’s decision, the Third Circuit discussed the basic dictionary definitions of “material” and “support.”59 Citing to Black’s Law Dictionary, the court explained that “[t]he word ‘material’ means ‘[h]aving some logical connection with the consequential facts.’ It also means ‘significant’ or ‘essential.’ Support is defined as: ‘[s]ustenance or maintenance; esp., articles such as food and clothing that allow one to live in the degree of comfort to which one is accustomed.’”60 The court further elucidated its understanding of material support saying that it encompasses the provision of “physical and logistical support that enable modern terrorist groups to operate.”61 Ultimately, this led the court to uphold the BIA decision, stating that “the BIA’s conclusion that Congress intended INA section 212(a)(3)(B)(iv)(VI) to include provision of food and setting up tents within the definition of ‘material support’ was not ‘arbitrary, capricious or manifestly contrary to the statute.’”62

While the above cases reveal that relatively minor support has been found to be material, the BIA has indicated that at least some acts could be considered de minimis 63 In Matter of L-H-, the BIA sustainedthepetitioner’s appeal from an IJ decision finding the petitioner was subject to the material support bar for supporting terrorist activity.64 In that case, terrorists stopped a car in which the petitioner was riding with five other individuals and forced the driver to hand over food they had in the car.65 In a second encounter, the terrorists took the equivalent of about four U.S. dollars from the chest pocket of his shirt.66 The BIA disagreed with the IJ’s finding that the support was

56 Id. at 301.

57. Id. at 296.

58 Id.

59 Id. at 298.

60. Id. (alterations in original) (citations omitted) (citing Support, BLACK’S LAW DICTIONARY (7th ed. 1999)).

61 Id. at 299 (quoting McMullen v. INS, 788 F.2d 591, 599 (9th Cir. 1986)).

62. Id.

63 ANKER, supra note 46.

64 Matter of L-H-, 2009 Immig. Rptr. LEXIS 963, at *1 (Arlington, VA B.I.A. July 10, 2009).

65 Id. at *3.

66 Id.

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material.67 In its analysis, the BIA distinguished that case from Matter of SK- where the petitioner had donated $685 U.S. dollars to a terrorist organization over the course of an eleven month period.68 Whereas in Matter of S-K-, the BIA found that the $685 was “sufficiently substantial by itself to have some effect on the ability of the [terrorist organization] to accomplish its goals.”69 here the BIA found that “one packed lunch and the equivalent of about $4U. S.dollars cannot besaidtobematerial.”70 Thecourt reasoned that “[t]he word ‘material’ must be given some meaning; if any support, no matter howminimal,wouldsufficetotrigger thebar,thentheword‘material’ would be rendered superfluous.”71

While the holding in Matter of L-H- may not amount to an explicit acknowledgment of a de minimis exception to the material support bar, it does show that there is an amount of support that the BIA is not willing to call “material.” Furthermore, the BIA did discuss its reasoning in terms of the amount or quantum of support, and held that this level of support was not enough to meet the materiality requirement. This holding is an interesting contrast to Barahona, discussed above, where the BIA expressly stated that there is no de minimis exception.72

TheBIA has also indicatedthat material support does not include purely incidental benefits, and has interpreted the materiality requirement as an inquiryintowhetherthesupport was “sufficientlysubstantialbyitselftohave some effect on the ability of a terrorist organization to accomplish its goals.”73 In an unpublished decision in March of 2013, the BIA dismissed a DHS appeal of an IJ’s decision to grant the respondent asylum.74 In that case, the respondent was a juvenile from Sierra Leone who had refused to fight for the terrorist organization Revolutionary United Front (“RUF”). Due to this refusal, as a form of discipline, he was forced to sweep the RUF’s camp.75 The DHS attempted to characterize this sweeping as valuable “custodial services” and argued the respondent should be barred from asylum for providing material support to a terrorist organization.76 The BIA rejected this argument, saying that “‘an act provides ‘material support’ to a terrorist

67. Id. at *4–5.

68 Id. at *5–6 (citing Matter of S-K-, 23 I. & N. Dec. 936, 945 (BIA 2006)).

69 Id. at *6 (alteration in original) (quoting Matter of S-K-, 23 I. & N. Dec. at 945).

70. Id.

71 Id. at *6–7.

72 See Barahona v. Holder, 691 F.3d 349, 353 (4th Cir. 2012).

73. ANKER, supra note46(quotingMatter of S-K-,23 I.&N. Dec.936,945–46 (BIA2006)).

74 BIA Unpublished Decision Finds Child Soldier's Sweeping Terrorist Organization's Camp Was Not Material Support Barring Asylum, 90 NO. 30 Interpreter Releases 1650 (Board of Immigration Appeals), Aug. 12, 2013, at 1.

75 Id.

76 Id.

organization, regardless of intent, if it has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even incrementally’ and even if the level of support is very small.”77 The court further reasoned that this was not a case of trifling (de minimis) support, but rather that it involved “conduct which has no logical and reasonably foreseeable tendency to promote, sustain, or maintain a terrorist organization.”78 In other words, “a reasonable person in the respondent’s place could not have been expected to discern the logical connection between the trivial act of ‘sweeping around’ the camp and the promotion, sustenance, or maintenance of the RUF.”79 Hence, purely incidental benefits that may accrue to a terrorist organization due to a person’s acts do not constitute “material support” and should not trigger the bar.80

The holding and reasoning in this unpublished case is interesting in that it seems to be a departure from the BIA’s approach in Matter of L-H- and Barahona. The BIA maintains its position that the word “material” means something, but says that “material” does not relate to the amount or quantum of support, but rather, it relates to the foreseeability that the support would in some way promote, sustain, or maintain the terrorist organization. Here, the BIA seems to introduce a different rule or test for determining materiality. It is important to note, however, that this case is unpublished and thus lacks precedential value.

In its jurisprudence on the whole, the BIA has consistently stated there is no de minimis exception to the material support bar. However, as seen in Matter of L-H-, and perhaps even in this unpublished case, there does seem tobealevel ofsupport thatacourt simplycannotconsider substantial enough to trigger the bar, regardless of how the court approaches its analysis or packages its opinion language. With that being said, what can be drawn from these cases is that the materiality threshold is extremely low. Even if a de minimis exception exists in-fact, few applicants who have provided support to a terrorist organization will be able to successfully argue it.

77 Id.

78 Id.

79. Id.

80 Id. (“Board Member Roger Pauley contributed a separate opinion in which he . . . dissented from the finding that the material support bar is inapplicable, finding that the INA mandates the conclusion that the bar applies. He concluded that the sweeping around the camp benefited the RUF and therefore constituted support, regardless of how small or trifling, since the statute affords no basis for a quantum-linked exception to the bar.”).

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E. The Legislative History of the Material Support Bar

Before 1990, the INA did not contain any provisions excluding asylum applicants based on involvement with terrorism.81 The Immigration Act of 1990 was the first federal law to include an inadmissibility provision based on terrorism-related involvement participating in “terrorist activities”82 though it did not contain an explicit material support bar.83

Congress articulated one of the first versions of the material support bar in 1996 when it passed the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”).84 The AEDPA was passed as a response to the 1993 bombing of the World Trade Center and the 1995 Oklahoma City bombing.85 It applied to refugees and asylum-seekers,86 and it prevented “persons within the United States, or subject to the jurisdiction of the United States, from providing material support or resources to foreign organizations that engage in terrorist activities.”87

FollowingtheSeptember 11terroristattacks,CongressenactedtheUSA Patriot Act of 2001 (“Patriot Act”).88 This Act significantly expanded the reachofthematerialsupport barbybroadeningthedefinitionsof “terrorism,” “terrorist activity,” “engaging in terrorist activity,” and “foreign terrorist organization.”89 Most notably, the Patriot Act created the three-tiered definition for “terrorist organization” that is seen in § 1182 today.90 As a part of this, it created the Tier III (undesignated) terrorist organization effectively allowing the government to “deny an asylum-seeker’s application when the only link to a terrorist act was through a small group whom the alien might

81 See CharlotteSimon, Change Is Coming: Rethinking the Material Support Bar Following the Supreme Court’s Holding in Negusie v. Holder, 47 HOUS L. REV 707, 712 (2010).

82 See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978; see also Bryan Clark & William Holahan, Material Support: Immigration and National Security, 59 CATH U. L. REV 935, 939–40 (2010) (“[The material-support bar’s] first iteration appeared in the Immigration Act of 1990 when Congress added the words ‘terrorist activities’ to the list of reasons for which aliens maybedeniedadmissionto or deportedfromtheUnited States.”); JordanFischer, The United States and the Material-Support Bar for Refugees: A Tenuous Balance Between National Security and Basic Human Rights, 5 DREXEL L. REV 237, 245–46 (2012);

83 See Simon, supra note 81, at 712.

84. See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104132, 110 Stat. 1214 (adding INA § 219), http://www.gpo.gov/fdsys/pkg/PLAW104publ132/html/PLAW-104publ132.htm [https://perma.cc/77QU-EA3C] [hereinafter AEDPA]; Fischer, supra note 82, at 245.

85 Messer, supra note 1, at 67.

86 Fischer, supra note 82, at 246.

87. AEDPA § 301(b).

88 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act) of 2001, Pub. L. No. 107-56, § 411, 115 Stat. 272, 345-50 (codified as amended at 8 U.S.C. §§ 1182, 1227, 1158, 1182 note, 1189 (2006)).

89 See id.; Fischer, supra note 82, at 246.

90 See USA Patriot Act § 411(a)(1)(G); Fischer, supra note 82, at 246–48.

not even know was involved in terrorism.”91 With the Patriot Act, the impact of the material support bar grew as a matter of law with the expansion of these key definitions.

In 2005, Congress passed the REAL ID Act, yet again broadening the scope of the material support bar.92 The REAL ID Act expanded the definition of Tier III organizations to cover any group that has a subgroup that uses weapons or armed force.93 Effectively, this meant that an asylum applicant could be barred from obtaining asylum relief for giving material support to virtually any armed group. Additionally, the REAL ID Act narrowed the knowledge exemption/defense associated with support for Tier III (undesignated) terrorist organizations. Under prior law, an alien who provided support to a Tier III organization could avoid the bar if he or she could demonstrate that he or she “did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity ”94 The REAL ID Act changed this language such that the applicant now had to prove that he or she “did not know, and should not have reasonablyknown,that the organization was a terrorist organization ”95 This changewassignificantinthatitwidenedthegapbetweenthealien’sintention in providing the support and any actual or attempted terrorist activity.96 The Actalsoexpandedtheconductthatconstituted“engaginginterroristactivity” to include such things as endorsing and/or espousing terrorist activity and receiving military-type training from a terrorist organization.97 This Act also introduced a waiver provision that can be exercised by the Secretary of State or the Secretary of Homeland Security to waive particular bars to asylum, including the material support bar.98

Since their introduction into immigration law in 1990, the reach of terrorism-related bars has been continually expanded through legislation. Most especially, the post-9/11 laws (Patriot and REALID Acts) extendedthe material support bar to include thousands of refugees who are victims of armed guerilla groups and authoritarian regimes. After years of expansion, as it stands today, U.S. laws in this area have been characterized as “the

91 Fischer, supra note 82, at 248.

92 See Emergency Supplemental Appropriations (REAL ID) Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. No. 109-13, sec. 103(a)-(c), 119 Stat. 302, 306-09 (2005) (codified as amended at 8 U.S.C. § 1182(a)(3)(B) (2006)).

93 Id. 94. AUSTIN T. FRAGOMEN, JR. ET AL., IMMIGRATION. LEGISLATION HANDBOOK § 9:4 (2018).

95 Id.

96. Id.

97 See REAL ID Act § 103(a)(i)(VII–VIII).

98 See id. § 104; see infra Part IV.

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world’s ‘most far-reaching legislation providing for the per se exclusion of individuals associate[d] with terrorism”‘99

Given thecomplex, layered natureofthelawin thisarea, thisComment has provided a flow chart in the Appendix.

III. D

URESS

: THE MATERIAL SUPPORT BAR IN CASES INVOLVING DURESS

Thefar-reachinganduncompromisingnatureofthematerial support bar is especially problematic in situations where the alien is forced to provide the support to the terrorist organization. Consider the following example: Ms. D is from Sierra Leone.100 One day, members of the rebel group the RUF attacked her and her family.101 The rebels sexually assaulted Ms. D and her daughter and hacked both of them with machetes.102 After the initial attack, the rebels locked Ms. D and her family in their home for several days, with the rebels staying in the home as well.103 Eventually, Ms. D was able to make it to the United States and applied for asylum. She was barred from asylum relief because her (forced) housing of the rebels was deemed to be material support of a terrorist organization.104

Thisisbutoneofmanytragicstorieswhereasylumapplicantshavebeen attacked, persecuted, or threatened and then forced to offer some sort of support to their persecutors.105 Their persecutors are terrorist organizations under U.S. law and, because of this, the applicants are forever barred from asylumrelief in the United States under the material support bar. These types of cases invoke a well-known and long-established idea in law that those who commit wrongful acts under the threat of death or serious bodily injury areactingunderduressandshouldnotbeheldliablefortheseacts.Theduress doctrine is widely accepted in American jurisprudence.

99. Mary-Hunter Morris, Babies and Bathwater: Seeking an Appropriate Standard of Review for the Asylum Applications of Former Child Soldiers, 21 HARV HUM RTS J. 281, 288 (2008) (alteration in original) (quoting Gregory F. Laufer, Note, Admission Denied: In Support of a Duress Exception to the Immigration and Nationality Act’s “Material Support for Terrorism” Provision, 20 GEO IMMIGR L.J. 437, 480 (2006)).

100 Simon, supra note 81, at 709.

101. Id.

102 Id.

103 Id.

104. Id.

105 See Sesay v. Atty. Gen. of U.S., 787 F.3d 215 (3d Cir. 2015); Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013); Barahona v. Holder, 691 F.3d 349 (4th Cir. 2012).

A. Defining Duress

Black’s Law Dictionary states that duress is “a threat of harm made to compel a person to do something against his or her will or judgment Duress practically destroys a person’s free agency, causing nonvolitional conduct because of the wrongful external pressure.”106 Duress is a broadly recognized defense to any act which must be voluntary in order to create liability in the actor.107 It is a defense in criminal, tort, and contract law.108

In the criminal context, duress is an affirmative defense that will excuse the criminal conduct under certain circumstances.109 A duress defense “arises when an individual is faced with a threat of death or serious bodily injury, and chooses to commit a crime rather than suffer the threatened consequences.” 110 In most jurisdictions, the defendant must establish a threat by a third person which produces a reasonable fear that he will suffer immediate death or serious bodily injury.111 The defense of duress assumes the defendant committed the crime, but allows the defendant to argue that his or her conduct should be excused because of duress.112 Two rationales underlie the doctrine of duress. The first is that the harm likely to befall the defendant is greater than the harm he or she will cause by committing the crime.113 Thus, in doing the act, the defendant actually chooses the lesser of twoevils.Thisistheutilitariantheoreticalbasisfortheduressdefense.114 The second rationale underlying the doctrine of duress is that people should not be punished for crimes they do not voluntarily commit.115 Criminal liability arises in part from the choice a person makes (the mens rea) to engage in the criminal conduct.116 “Without sufficient capacity to choose, blame is improper.”117 Thisistheretributivetheoretical basisfortheduressdefense.118

As it stands, the material support bar does not contain an express exception for support provided under duress.The material support bar is very nearly a strict liability offense if the alien did the act, the bar applies, regardless of the alien’s state of mind or reason for providing the support.

106 Duress, BLACK’S LAW DICTIONARY (10th ed. 2014).

107 Duress, BARRON’S LAW DICTIONARY 178 (7th ed. 2016).

108. Id. at 178–79.

109 Id. at 179.

110

RUSSELL L. WEAVER ET AL , CRIMINAL LAW: A CONTEMPORARY APPROACH 661 (2d ed. 2014) (citing United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984).

111

STEVEN L. EMANUEL, CRIMINAL LAW 85 (5th ed. 2010).

112 WEAVER, supra note 110, at 662; see Dixon v. United States, 548 U.S. 1, 6 (2006).

113. EMANUEL, supra note 111, at 107.

114 Laufer, supra note 99, at 451–52 n.94.

115 Id. at 452.

116. WEAVER, supra note 110, at 661.

117 Id.

118 Laufer, supra note 99, at 452.

Hence, aliens who provide support due to threats to their life, their family members’ lives, or their livelihoods are treated just the same as aliens who provide support because they want to further the goals and objectives of the terrorist organization.

B. An Implied Exception for Duress: Matter of M-H-Z-

The lack of an explicit exception for applicants who have provided material support under duress has led many to argue and advocate for an implied exception for duress. Over the years, asylum applicants have challenged the application of the material support bar totheir case by arguing that the statute includes an implied exception in cases of duress. For years, the courts refused to read in such an exception, but the issue continued to linger as the BIA never definitively ruled one way or the other.

The existence of an implied duress exception was recently, and finally, decided by the BIA in Matter of M-H-Z- 119 In that case, the respondent (the asylum applicant) was a native and citizen of Colombia who owned a hotel and a store in the town of El Bordo, Colombia.120 In the early 1990s, she began receiving notes and messages from the Revolutionary Armed Forces of Colombia (“FARC”) demanding goods and money.121 After FARC made a number of threats, the respondent acquiesced to their demands and began toprovidethemwithmerchandisefromherstore.122 From1997toearly1999, she supplied foodstuffs and other products that FARC requested.123 In 1999, the respondent housed some government officials at her hotel, which resulted in more serious threats being made by FARC.124 On March 7, 2000, FARC attacked El Bordo, and her store and hotel were destroyed.125 The respondent entered the United States in 2001 as a nonimmigrant visitor and subsequently sought asylum.126

The IJ denied the respondent’s application for asylum, finding that she was “barred from relief because she had committed an act that she knew or reasonably should have known afforded material support to a terrorist organization.”127 On the first appeal, the BIA agreed with the IJ that the respondent was subject to the mandatory material support bar to asylum, but remanded the case to the IJ to make an explicit determination as to whether

119. See Matter of M-H-Z-, 26 I. & N. Dec. 757 (BIA 2016).

120 Id. at 757–58.

121 Id. at 758.

122.

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the respondent would otherwise be eligible for relief in the absence of the material support bar.128 On remand, the IJ held that, except for the material support bar, the respondent would be eligible for asylum based on her past persecution by the FARC.129 The respondent appealed the BIA’s first ruling tothe Second Circuit Court of Appeals.130 Whileagreeingthat therespondent had provided material support to a terrorist organization, ultimately, the Second Circuit remanded the case to the BIA to “determine whether the statute contains an implied exception to the material support bar for aliens whose support was supplied under duress.”131

The issue before the BIA on appeal the second time was whether the material support bar “include[d] an implied exception for an alien who has provided material support to a terrorist organization under duress.”132 Ultimately, the BIA held that the material support bar did not include an implied duress exception.133 The BIA came to this conclusion for several reasons. First, it noted that all of the federal circuit courts that had addressed this issue in a precedent decision had held that the material support bar did not include an implied exception for duress.134 Second, the court concluded thatCongressdidnotintendfortheretobeanimpliedexceptionforduress.135 The court noted that Congress had provided an explicit exception for duress in the INA section with the statutory bar against aliens who were members or affiliated with a Communist or totalitarian party.136 There, “Congress created an explicit exception for an alien who establishes that ‘the membership or affiliation is or was involuntary.’”137 This led the court to conclude that “[i]f Congress intended to make involuntariness or duress an exceptionfor alienswhoprovidedmaterial supporttoaterrorist organization, it would reasonably be expected to have enacted a [similar] provision” in that section.138

The court stated that the case for an implied duress exception was also “undermined by the fact that Congress created a waiver for deserving aliens to avoid the consequences of the bar.”139 The court thought that

128 Id.

129 Id. at 759.

130. Id.

131 Id.

132 Id.

133. Id. at 764.

134 Id. at 760.

135 Id. at 761.

136. Id. (citing to INA § 212(a)(3)(D)(i)-(ii) (1952) (current version at 8 U.S.C. § 1182(a)(3)(D)(i)-(ii) (2018))).

137 Id. (quoting INA § 212(a)(3)(D)(i)-(ii) (1952) (current version at 8 U.S.C. § 1182(a)(3)(D)(i)-(ii) (2018))).

138 Id.

139 Id.

Congress provided the waiver provision as a “means of balancing the harsh provisions of the material support bar and an indication that Congress’s omission of ameliorative provisions in section 212(a)(3)(B) of the Act was intentional.”140 For these reasons, the BIA concluded that Congress did not intend for there to be an implied exception for duress, and they declined to create one.

The court’s holding and reasoning are sound in Matter of M-H-Z-. The statute’s inclusion of a waiver provision is devastating to the argument for an implied duress exception. It shows that Congress was aware that there may be cases where application of the bar should be waived and chose the executive waiver process to deal with such cases. To read into the statute an implied exception for duress would cut contrary to fairly clear congressional intent and would thus require adjudicators to act beyond their constitutional roles. Separation of powers, and a proper respect for the role and function of each branch of government, counsel one to look for another way to address this problem.

IV. THE WAIVER PROVISION: THE EXECUTIVE POWER TO WAIVE TERRORISM-RELATED BARS

A. The INA Provision for Executive Waiver

Under 8 U.S.C., Section 1182(d)(3)(B)(i), the Executive Branch, acting through the Secretary of the Department of Homeland Security (DHS) or the Secretary of State (SOS), may grant waivers to applicants otherwise barred fromasylumrelief byoneoftheterrorism-relatedbars,includingthematerial support bar.141 The statute states:

The Secretary of State, after consultation with the Attorney General and the Secretaryof Homeland Security, or the Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, may determine in such Secretary’s sole unreviewable discretion that subsection (a)(3)(B) [bars related to those involved in terrorist activities] shall not apply with respect to an alien within the scope of that subsection or that subsection (a)(3)(B)(vi)(III) [Tier III terrorist organizations] shall not apply to a group within the scope of that subsection . . . . 142

This power to waive can be exercised at-large to provide waivers for aliens who have supported certain specified groups group-based exemptions or individuallyto providea waiver toa particular alien whohas

140. Id. at 762.

141 See 8 U.S.C. § 1182(d)(3)(B)(i) (2018).

142 Id.

supported a terrorist organization.143 By delegation of authority, individual waivers (or exemptions) are administered by the United States Citizenship and Immigration Services (USCIS) in a discretionary process.144 Under this provision, IJs, the BIA, and the Judiciary do not have the authority to waive the material support bar.145 However, under this provision, a court does have jurisdiction to review waiver determinations, but only in the context of a review of a final order of removal pursuant to 8 U.S.C. 1252(a)(2)(D).146 Because an applicant only has thirty days in which to challenge a final removal order, and waiver determinations are certainly not issued within thirty days, judicial review of waiver determinations does not happen.147 The DHS has stated that it will only consider a case for exemption (waiver) after an order of removal is administratively final.148 An order is considered “administratively final” when “either a decision by the BIA affirms an order of removal or the period in which the individual is permitted to seek review of such order by the BIA has expired, whichever date is earlier.”149 An order is still considered administratively final and the “exemption will be considered even if the individual files a Petition For ReviewwithaFederal CircuitCourt ofAppeals.”150 TheDHSrequiresafinal order of removal because “[b]y adjudicating the exemption at this stage, all parties will have a chance to litigate the merits of the case up through the BIA, and DHS will be able to focus its resources on cases where the possible exemption is the only issue remaining in the individual’s case.”151 In other words, for the DHS this process is efficient and resource-effective. Thus, an applicant must go all the way through the asylum adjudicatory process, receiving a final order of removal from the BIA before he or she can even be considered for a waiver. As will be seen later in this Comment, this creates a host of procedural and logistical problems for applicants.152

143

Memorandum from Jonathan Scharfen, Deputy Dir., U.S. Dep’t Homeland Sec., Processing the Discretionary Exemption to the Inadmissibility Ground for Providing Support to Certain Terrorist Organizations 4 (May 24, 2007), http://www.uscis.gov/sites/default/files/files/pressrelease/MaterialSupport_24May07.pdf [https://perma.cc/JZB7-VTTE] [hereinafter Scharfen Memorandum].

144 Id. at 3.

145. See 8 U.S.C. § 1182(d)(3)(B)(i) (stating the Secretary may determine in his or her “sole unreviewable discretion” to issue such a waiver)

146 See id.; id. § 1252(a)(2)(D).

147. See infra notes 198–206 and accompanying text.

148 See U.S. Citizenship and Immigration Servs., Department of Homeland Security Implements Exemption Authority for Certain Terrorist-Related Inadmissibility Grounds for Cases with Administratively Final Orders of Removal (Oct. 23, 2008), https://www.hsdl.org/?view&did=19281 [https://perma.cc/A3LH-6LD9].

149 Id.

150. Id.

151 Id.

152 See infra notes 162–210 and accompanying text.

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B. The Duress Waiver

In 2007, the Deputy Director of the DHS issued an administrative memorandum outlining instructions for adjudicating immigration applications filed with the USCIS where the applicant was barred from an immigration benefit for providing material support to a terrorist organization.153 Among other things, the memorandum provided for, and discussed the requirements of, a duress exemption.154 The memorandum stated that “[t]he Secretary of Homeland Security has determined that in certain circumstances it may be appropriate to exercise his discretion to grant an exemption to applicants who gave material support to an undesignated terrorist organization when the support was provided under duress, and he has delegated this authority to USCIS.”155 As detailed in this memorandum, the duress exemption is only available to those who have provided support to an undesignated terrorist organization, a Tier III group.156 Hence, someone who has provided support to a Tier I or Tier II (designated) organization, even under duress, is not eligible for the exemption according to this memorandum.

In order for an applicant to be eligible for the duress waiver, at a minimum, the material support must have been provided in response to a “reasonably-perceived threat of serious harm.”157 In determining whether the support was given under duress, the USCIS officer is instructed to consider the following non-exhaustive list of factors:

(1) Whether the applicantreasonablycould have avoided, or took steps to avoid, providing the material support;

(2) The severity and type of harm inflicted or threatened;

(3) To whom the harm or threat of harm was directed;

(4) The perceived imminence of the harm threatened;

(5) The perceived likelihood that the threatened harm would be inflicted; and

(6) Any other relevant factor regarding the circumstances under which the applicant felt compelled to provide the material support.158

Once USCIS determines that the asylum applicant did indeed provide the material support under duress, it then considers whether the “totality of 153.

See Scharfen Memorandum, supra note 143, at 1.

the circumstances” justifies the waiver.159 In doing so, it is instructed to consider the following factors:

(1) The amount and type of material support provided;

(2) The frequency of material support provided;

(3) The nature of the terrorist activities committed by the terrorist/terrorist organization;

(4) The applicant’s awareness of the terrorist activities;

(5) The length of time that has passed since the applicant provided the material support;

(6) The applicant’s conduct since the time that he or she provided the material support; and

(7) Any other relevant factor.160

By way of a 2009 USCIS memorandum, the duress exemption was later expanded to include support rendered to Tier I and Tier II organizations.161 It also appears that, at least for a time, there was a Material Support Working Group active within USCIS “[i]n order to ensure agency-wide consistency in implementation of the material support duress exemption . . . .”162

Thus, under the INA, either the Secretary of the DHS or the SOS have the authority to issue waivers to applicants falling under one of the terrorismrelated bars, including the material support bar. Also under the DHS memoranda discussed above, an adjudicative framework has been established by which the USCIS may waive the material support bar in cases of duress. Hence, both Congress and the DHS have recognized the need for such waivers and have attempted to provide a framework within which they can be adjudicated and issued. However, as will be seen in the next part of this Comment, this framework is dysfunctional and is in need of revisions or a complete overhaul.

V. FRUSTRATION WITH THE WAIVER PROVISION: CHALLENGING THE CURRENT WAIVER FRAMEWORK

For many years, there has been a growing frustration within the legal community with the waiver framework currently in place. Critics of the current waiver framework point to three major flaws.163 Frist, in the years

159. Id.

160 Id.

161 Memorandum from Michael Aytes, Deputy Dir., U.S. Citizenship and Immigration Servs., on Revised Guidance on the Adjudication of Cases Involving Terrorist-Related Inadmissibility Grounds and Amendment to the Hold Policy for Such Cases (Feb. 13, 2009), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009 /terror- related_inadmissibility_13feb09.pdf [https://perma.cc/T4GE-DS3Y].

162 Id.

163 See HR Denial and Delay Report, supra note 36, at 7–10.

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following its enactment, the waiver provision has been used sparingly.164 Relative to the number of asylumapplicants and refugees affected by the bar, and the consequences of its application, the exercise of waiver authority has been minimal and is considered by many to be seriously lacking. This should comeasnosurprise:theissuanceofawaiverrequiresthesynchronizedaction of three large, bureaucratic governmental agencies the DHS, the Secretary of State, and the Attorney General.165 Hence, the existence on paper of the authority to waive the material support bar has proven to be of little help in real life because of its sparse use.

Second, the current waiver process has some serious procedural flaws. As discussed earlier in this Comment, the process requires a final order of removal before an asylum applicant can be considered for a waiver,166 and there is no (automatic) stay on the order of removal pending a waiver determination. In other words, an applicant may be deported before they are even considered for a waiver. And to make matters worse, “[t]here is no formal published procedure available to the public on how to apply and obtain [a duress] waiver.”167

There is no better example of the procedural problems created by the current waiver process than the Seventh Circuit’s FH-T v. Holder 168 In FHT v. Holder, the petitioner (asylum applicant) was from Eritrea.169 When he was fifteen years old, the petitioner joined the Eritrean People’s Liberation Front (“EPLF”), which was fighting against Ethiopia for Eritrean independence at the time.170 He quickly regretted the decision and attempted to return home after only two days with the EPLF.171 However, the EPLF would not let him leave, and he ended up serving with the EPLF for the next nine years.172 The petitioner worked in communications and as a small car and truck driver, transporting food and clothing and transferring calls.173

In 1991, the EPLF defeated Ethiopia, achieving Eritrean independence.174 Soon thereafter, the EPLF dissolved itself into a political

164. Since the creation of the waiver provision, the Executive Branch has exercised its authority to waive terrorist-related bars at various times and in various ways. For a fairly detailed account of the history of executive action in this regard see SHANE DIZON & NADINE K. WETTSTEIN, IMMIGRATION LAW SERVICE, § 3:50 (2016).

165 See INA § 212(d)(3)(B)(i); see also Human Rights First, Unintended Consequences: Refugee Victims of the War on Terror, 37 GEO J. INT’L L. 759, 782 (2006).

166. See supra notes 148–152 and accompanying text.

167 Messer, supra note 1, at 69.

168 FH-T v. Holder, 723 F.3d 833, 835 (7th Cir. 2013).

169. Id. at 836.

170 Id

171 Id.

172. Id.

173 Id.

174 Id.

party known as the People’s Front for Democracy and Justice (“PFDJ”).175

In 2005 and 2006, while working for the government, the petitioner began expressing concerns about abuses of the PFDJ’s National Service program a compulsory (conscription) labor program under which all Eritrean citizens must work for the government for a period of eighteen months.176 Due to these repeated complaints, the government imprisoned the petitioner for approximately five months in deplorable conditions.177 Following his release from prison, the petitioner was required to work without pay, was under constant surveillance, was regularly interrogated, and received threats on his life.178 When he believed the government was soon going to kill him for political disobedience, he fled Eritrea and came to the United States where he filed for asylum.179

The IJ denied the petitioner’s application for asylum because, among other things, the petitioner “was statutorily ineligible for having provided material support to the EPLF, which the [IJ] classified as a Tier III terrorist organization.”180 The IJ further “concluded that [petitioner] had not met his burden of showing by clear and convincing evidence that he did not know the group was a terrorist organization.”181 The BIA affirmed the IJ decision that the petitioner was barred from asylum relief because he had provided material support to a Tier III terrorist organization.182 Because the BIA determined that the material support bar rendered the petitioner ineligible for asylum, it did not address, or issue a finding, on the merits of the petitioner’s asylum claim.183 The petitioner then appealed to the Seventh Circuit Court of Appeals.184

On appeal to the Seventh Circuit, the petitioner challenged the BIA’s decision not to adjudicate the merits of his claim.185 He argued that the BIA’s decision not to adjudicate the merits of his claim “deprived him of a fair opportunityto obtain awaiver fromthat bar,” and that the BIA’s adjudication practices “operate[d] to nullify a statutory right” and constituted an abdication of its role in the waiver process.186 Published DHS policies required that the petitioner have a meritorious asylum claim “but for” the

175. Id.

176 Id.

177 Id.

178. Id. at 836–37.

179 Id. at 837.

180 Id.

181. Id.

182 Id. at 837–38.

183 Id. at 838.

184. Id.

185 Id. at 838, 842.

186 Id. at 842–44.

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material support barin order for a waiver tobeconsidered.187 Bynot deciding on the merits of petitioner’s claim, the BIA effectively denied the petitioner the opportunity to seek a waiver from DHS, as the statute permits, and “thwart[ed] Congress’s desire to provide aliens subject to the terrorism bars with an exemption possibility.”188 Accordingly, the petitioner argued that the Seventh Circuit was “authorized to review such procedures and instruct the Board to adjudicate Petitioner’s claim in a particular way,”189 namely, to require the BIA to adjudicate the merits of asylum claims in all cases triggering the material support bar.

The Seventh Circuit rejected this argument.190 The court declined to view the statute’s possibility of a waiver being granted by the DHS as a statutory right to apply for such a waiver.191 In rejecting this argument, the court was concerned with efficiency, or docket control, and separation of powers.192 It noted that to require the BIA to adjudicate the merits of all such cases would “prolong the resolution of cases in an already strained system” and “be far more intrusive than any of our past mandates.”193 The court was, however, troubled by the situation.194 It noted that this was much like “other cases in which we expect the immigration courts to coordinate action with other executive agencies soas to avoid deprivingindividuals of opportunities to which they are legislatively entitled.”195 It further noted this was a “disconcerting lack of harmonization among executive agencies.”196 Ultimately, the Seventh Circuit said it could not “say that the Board ‘legally erred’ in declining to reach the merits of [the petitioner’s] asylum claim.”197

The petitioner’s second line of argument was that “the existing waiver process [was] flawed because the entry of a removal order by the Board prior to any waiver adjudication by DHS . . . frustrate[d] judicial review . . . .”198 Congress had provided for limited judicial review of DHS waiver determinations within the context of a review of a final order of removal.199 However,DHSpolicyrequiredtheissuanceofafinalorder ofremoval before a waiver would even be considered.200 The issuance of a final removal order

triggers a thirty-day window for the asylum applicant to seek judicial review of the removal order.201 In most cases, including the petitioner’s case, “a petitioner [would] have no waiver determination upon which to seek review as part of his final removal order within the 30-day window.”202 Thus, the petitioner argued that “the more natural reading of the statue is to require that exemption decisions be made before a final removal order, not afterward.”203

The court rejected this line of argument for reasons very similar to its rejection of the petitioner’s first line of argument judicial efficiency and separation of powers.204 The court stated that “[t]o instruct the Board to automatically stall the issuance of its opinions while awaiting exemption determinations from DHS . . . would not only grind the levers of the immigration system to a near halt, but would constitute an impermissible judicial encroachment upon agency authority.”205 It believed that the responsibility for mending this “troubling operation of uncoordinated procedures” was the “province of Congress.”206 Here again, however, the court was sympathetic to the petitioner’s plight and troubled by the current process.207 It noted that the current process was “of some concern insofar asCongressdidclearlylegislatetoprovideforjudicialreviewofDHSwaiver determinations, and current agency practices [would] in all likelihood frustrate the opportunity for review because Board decisions [would] issue more quickly than DHS exemptions.”208

FH-T v. Holder illustrates well the procedural problems extant within the legal framework of the waiver provision its design and execution. The congressional intent behind the waiver provision is being frustrated by a lack of sound procedure and coordination between the Department of Justice (“DOJ”) and the DHS. Asylum seekers are the ones suffering for these shortcomings as they are subject to deportation or years of uncertainty, separation from family, or potentially long-term detention as their applications await proper adjudication.209 The courts recognize the procedural problems created by the current scheme, but do not feel they are the appropriate branch to remedy these problems.

The third significant problem with the current waiver framework is that the departments making waiver determinations (DHS and SOS) are

201 Id.

202. Id.

203 Id. (quoting Brief for Petitioner at 37, FH-T v. Holder, 723 F.3d 833 (7th Cir. 2013) (No. 12-2471)).

204. Id. at 848.

205 Id.

206 Id.

207. See id. (stating that the current process is “troubling” and “of some concern”).

208 Id.

209 See HRF Denial and Delay Report, supra note 36, at 10–11.

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politicizedandunder the direct control of the President.Thismakes theentire waiver system subject to the political winds of change that come with different presidential administrations. An Administration’s willingness to prioritize, or even extend, waivers may depend purely on political considerations such as campaign promises to be tough on “immigration” or “terrorism,” constituencies and public opinion polls, and the latest news about terrorist attacks all of which are irrelevant to the actual merit of a particular alien’s asylum application. Recent actions by the Trump Administration illustrate the dangers of the waiver authority being housed with the DHS and the SOS. On January 27, 2017, shortly after taking office, President Trump issued Executive Order 13769.210 Section six of this Order states, “The Secretaries of State and Homeland Securityshall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility,aswellasanyrelatedimplementingmemoranda.”211 Another example isseen ina recent memorandumin which theTrump Administration calls for the implementation of protocols and procedures to better protect the American people. The memorandum states that “[t]hese additional protocols and procedures should focus on: (a) preventing the entry into the United Statesofforeignnationalswhomayaid,support,orcommit violent,criminal, or terrorist acts . . . .”212 This Order and memorandum recommend that the DHS and the Secretary of State effectively do away with all of the groupbased and individual exemption procedures that have been issued by them in the last ten years.213 This would do away with the duress exemption, which exists as a group of memoranda from the DHS.214 Ten years of cutting back on the harsh effects of the material support bar may thus be significantly curtailed by a change in administration and the stroke of a pen. Such is the danger of the waiver program being administered by departments close to, and under the direct control of, the President.

210 Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 8977 (Jan. 27, 2017).

211. Id. at 8980.

212 Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits, Ensuring Enforcement of All Laws for Entry Into the United States, and Increasing Transparency Among Departments and Agencies of the Federal Government and for the American, 82 Fed. Reg. 16279 (Mar. 6, 2017).

213 See id. (enforcing all laws concerning entry into the United States); Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 8977 (suspending multiple immigration programs).

214 See supra Section IV.B (discussing the duress exemption).

VI. LEGISLATIVE, EXECUTIVE, AND JUDICIAL REMEDIES

As it stands, the current legal structure of the material support bar and the executive waiver process is creating inequitable results and needs to be modified through some form or combination of legislative, executive, or judicial action. However, courses of action should be proposed and evaluated with a respect for the constitutional doctrine of the separation of powers and a respect for the legitimate value of national security and political stability.

A. Legislative Remedy

The most straightforward, and probably the most appropriate, remedy would be for Congress to “enact legislation to incorporate an explicit duress exception to the material support bar provision of the INA.”215 A statutory exception for duress would give IJs, the BIA, and the Judiciary authority to waive the material supportbar at the time the claimis beingadjudicated.This would create a more equitable, predictable, and efficient system of adjudication.216

The substantive legal framework for adjudicating an explicit duress exception already exists. The current DHS duress exemption factors and totality test give an excellent, ready-made starting point for adjudicating a statutory duress exception.217 An explicit duress exception would merely alter who is doing the adjudication and when it is being done. It would put the adjudication of the duress exception in the hands of the IJs, the BIA, and the judiciary (on appeal). The IJs and the BIA are the ones most familiar with the facts of a particular case and with the credibility of the alien. Presumably, this “closeness” would create more accurate and equitable results. Furthermore, adjudicating the duress issue at the time the merits of the asylum application are being adjudicated would be more efficient and resource-effective. Finally, to the extent BIA and Judiciary opinions are published, the legal community and the public would benefit from visible, developing case law in this area. Equity, accuracy, efficiency, and predictability all favor this course of action.

All of that being said, there is a valid counterargument to IJs, the BIA, or the judiciary (on appeal) making duress exception determinations. The counterargument relates to national security concerns and departmental or

215 Messer, supra note 1, at 71. In past years, there have been several attempts to pass legislation to remedy the overly broad scope of the material support bar. Despite these attempts, todate, no legislation has been passed that meaningfully limits the application of the material support bar orprovides somesortofrelieffor casesof duress.For adetaileddiscussionof thesepastattempts at legislative change see Simon, supra note 81, at 732–33.

216 See Messer, supra note 1, at 72.

217 See supra Section IV.B (laying out the steps for the current duress waiver process).

agency (DHS or SOS) expertise. Though not exactly analogous to the situation we have been discussing, the counterargument is captured and articulated well in Holder v. Humanitarian Law Project 218 In that case, the United States Supreme Court was considering the application of 18 U.S.C. Section 2339B(a)(1), whichmakes it a federal crime to “knowinglyprovid[e] material support or resources to a foreign terrorist organization.”219 The plaintiffs brought a pre-enforcement suit challenging section 2339B’s prohibition against providing certain types of material support to terrorist organizations, asserting violations of their Fifth and First Amendment rights.220 In its analysis on whether the material support statute violated the plaintiff’s right to freedom of speech, the Court asked “whether the Government may prohibit what plaintiffs want to do provide material support to the PKK and LTTE [groups designated as terrorist organizations] in the form of speech.”221 On this issue, the Executive Branch submitted an affidavit to the Court with its opinion and conclusion on the matter.222

In discussing the merits of deferring to the Executive Branch on this issue, the Court stated that the “evaluation of the facts by the Executive, like Congress’s assessment, is entitled to deference . . . [because] [t]his litigation implicates sensitive and weighty interests of national security and foreign affairs.”223 The Court went on to say that “the material-support statute addresses acute foreign policy concerns involving relationships with our Nation’s allies,”224 and “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.”225 The Court noted another reason for respecting the executive’s opinion “is that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess.”226 “The material-support statute is, on its face, a preventive measure it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likelyto occur.”227 In summary, the Court pointed to the executive’s inside information in regards to foreign alliances, national security intelligence, and the continually evolving nature of terrorist organizations and terrorism itself.

218 Holder v. Humanitarian Law Project, 561 U.S. 1, 33–34 (2010).

219. 18 U.S.C. § 2339B(a)(1) (2018).

220 Humanitarian Law Project, 561 U.S. at 10–12.

221 Id. at 28.

222. Id. at 33.

223 Id. at 33–34.

224 Id. at 34.

225. Id. (quoting Boumediene v. Bush, 553 U.S. 723, 797 (2008)).

226 Id.

227 Id. at 35.

Holder v. Humanitarian Law Project captures arguments that can be made against an explicit duress exception that would put exemption power within the authority of immigration courts that lack the scope and depth of intelligence and foreign-affairs knowledge that the DHS and the SOS do. There is little doubt that Congress has intentionally placed waiver authority within the purview of the DHS and the SOS for these very reasons. However, asylum applicants already go through numerous background and security checks administered byvarious executiveagencies,fromthe FBIto the DHS. These departments may, through the process of these checks, deem someone unsuitable for asylum due to ties or involvement with terrorism. Moreover, IJs and the BIA are housed within the Executive Branch and can be informed by the Administration concerning particular security risks. This being the case, it seems that giving IJs and the BIA authority to waive the material support bar in cases of duress presents minimal incremental risk.

B. Executive Remedy

In the absence of legislative action, there are things the Executive Branch could do to help address these problems. For one, the DHS could design and publish a procedure whereby asylum seekers could apply for a duress waiver.228 Furthermore, “[t]his procedure should give the asylum seeker an opportunity to . . . present evidence on his or her behalf to defend against the government’s allegations.”229 There should be clear and explicit instructions for the asylum seeker on how to apply for this waiver, and the waiver procedure could be modeled after already-existing waivers such as the 212(h) waiver which allows for waiver of criminal grounds of inadmissibility.230

The DHS, in consultation with the AG and the DOS, could issue formal regulations or informal guidance to immigration courts. Doing so, would require the DHS to issue a final administrative order on all cases involving the material support bar and then stay removal pending a DHS review of the applicant’s case for the purposes of a duress waiver. Such a procedure would force the immigration courts and the DHS to work together and guarantee the DHS reviewed applications for the possibility of a waiver.

C. Judicial Remedy

The judiciary’s room to act in this area is fairly limited. Generally, the judiciary is limited to providing measures that force more procedural

228. Messer, supra note 1, at 72.

229 Id. 230 Id.

FINDING EQUITY IN ASYLUM LAW 567

integrity or tighten up existing procedures. To begin, courts could help limit the overall reach of the material support bar by using case law and judicial interpretation to increase the threshold of the materiality requirement i.e., by creating a clear de minimis exception to the materiality requirement. This would have a limited effect overall, but in this case something may be better than nothing.

Courts may also address this problem by issuing a writ of mandamus to the Secretary of the DHS ordering the Secretary to design and publish a waiver procedure. This would accomplish the executive remedy in a roundabout way mentioned above through pressure by the judiciary. This option does assume or necessitate, however, that the waiver provision within the INA is viewed as being statutorily mandated, and by not having such a procedure the DHS or the SOS are not performing their duties per the statute. Finally, another option would be for the judiciary to consider if the current procedure and execution of the waiver provision compared to the statutorily intended procedure and execution violates an applicant’s constitutional due process rights. Recently, some aliens have challenged immigration decisions, or the procedures surrounding them, as unconstitutional violations of their due process rights.231 So far, these challenges have been unsuccessful, but this is a potential avenue for change that can raise the issue (awareness) to the level of the United States Supreme Court.

VII. CONCLUSION

Today is an age of ISIS, terrorist bombings and mass shootings, and instability in some countries created by mass immigration over a number of years. National security concerns cannot be ignored or trivialized. National security and political stability are values to be prioritized and protected. However, our immigration laws must maintain balance between these values and other values that are also important. The United States has long been a place of refuge for the persecuted of the world; indeed, it has been so from its beginnings. The United States has long recognized the value of humanitarian pursuits and human rights, and has long recognized a duty to humanity at-large. These are our humanitarian values, and national security must be balanced against them. As it is, the current legal structure of the material support bar and the executive waiver process is tipped too heavily infavorofprotectingnationalsecurity.Thisimbalanceiscreatinginequitable

231 See Jabateh v. Lynch, 845 F.3d 332, 339 (7th Cir. 2017); Cadavedo v. Lynch, 835 F.3d 779, 784 (7th Cir. 2016).

results results that do not feel right to anyone who takes a few minutes to look at them.

The over-inclusive nature of the material support bar casts a net too wide. Our law is using a sledgehammer to crack a nut. It needs to adapt by becoming more nuanced and refined in its approach to this issue. Unfortunately, at the moment, our government seems to be moving in the exact opposite direction. But anyone reading these words has a voice, and in the United States, voices can still be heard.

568 SOUTH TEXAS LAW REVIEW [Vol. 59:537

Provision of food, shelter, money, transportation, etc. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)

FINDING EQUITY IN ASYLUM LAW 569 APPENDIX

Inadmissibility Related to Security and Other Grounds

8 U.S.C. § 1182(a)(3)

Terrorist Activities

8 U.S.C. § 1182(a)(3)(B)

Engaged in a Terrorist Activity

8 U.S.C. § 1182(a)(3)(B)(i)(I)

Terrorist Activity Defined

8 U.S.C. § 1182(a)(3)(B)(iii)

Engaged in a Terrorist Activity Defined

8 U.S.C. § 1182(a)(3)(B)(iv)

Affords Material Support to a Terrorist Activity or Organization

8 U.S.C. § 1182(a)(3)(B)(iv)(VI)

Terrorist Organization Defined

Material Support

8 U.S.C. § 1182(a)(3)(B)(vi)

Knowledge Requirement 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)

Probably no de minimis exception Case law

Tier I, II, and III

8 U.S.C. § 1182(a)(3)(B)(vi)(I)-(III)

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TEXAS’S LAW OF PARTIES: EXHAUSTING ALL

P

TO ENSURE THE FAIRNESS OF AN

A

’S CONVICTION & PUNISHMENT

† Dylan W. Morgan, J.D. Candidate, May 2018. Thank you, Professor Amanda Peters, for helping me put together this comment as well as sharing with me your experiences as a successful student, Harris County Assistant District Attorney, Appellate attorney, and Professor.

572 SOUTH TEXAS LAW REVIEW [Vol. 59:571

I. INTRODUCTION

On December 13, 2000, seven inmates (the Texas Seven), all convicted of violent crimes with varying se+ntence lengths of the John B. Connally Unit, took multiple employees and inmates hostage.1 Using civilian workers’ clothes, the Texas Seven raided a guard tower for weapons and ammunition, and were able to make their getaway in a Texas Department of Criminal Justice maintenance truck.2 After making their way to Irving, Texas, the Texas Seven robbed an Oshman’s Sporting Goods store.3 As they were loading up a vehicle left for them by one of the inmate’s family members, an Irvin police officer, Aubrey Hawkins, confronted the men and was gunned down.4 After being on the run, six of the Texas Seven were apprehended in Colorado while the seventh took his own life.5

Since their escape, the surviving escapees have all been sentenced to death for their participation in the murder of Officer Hawkins.6 All but one of the Texas Seven escapees, Randy Halprin, were convicted as principal participants in the murder of Officer Hawkins.7 “Halprin was convicted as a party . . . .[S]ohedidn’thavetoshoottheweaponstoget thedeathpenalty.”8 Halprin’s situation was potentially controversial because although he was carrying a gun and participated in at least two of the multiple robberies carried out by the Texas Seven, his gun was not fired during the shooting of Officer Hawkins.9 Subsequent testimony by three of the Texas Seven’s surviving escapees established that they “examined Halprin’s pistol after the shootout at Oshman’s and found it had not been fired.”10 The mastermind of the Texas Seven, George Rivas, said he “clearly remembers this because, after receiving two gunshot wounds during the altercation, he initially

1 See 7 Inmates Escape from Texas Prison, ASSOCIATED PRESS (Dec. 21, 2000), http://www.corrections.com/articles/7190-7-inmates-escape-from-texas-prison [https://perma.cc/4JNS-FCC7]; The Texas Seven Prison Escape, PRISONOFFENDERS COM, http://www.prisonoffenders.com/prison_texas_seven.html [https://perma.cc/H2P3-NE57] (last visited Jan. 28, 2017).

2 The Texas Seven Prison Escape, supra note 1.

3 Id.

4. Id.

5 Id.

6 Spencer Cambell, Notorious Texas Seven Try to Save One of Their Own by Insulting Him, DALLAS OBSERVER (May 29, 2008, 4:00 AM), https://www.dallasobserver.com/news/notorioustexas-seven-try-to-save-one-of-their-own-by-insulting-him-6374084 [https://perma.cc/U58V9X4G].

7 Id.

8 Id. (Speaking at a hearing regarding a potential recommendation for the Texas Court of Criminal Appeals to grant Halprin’s writ and safe his life, Assistant District Attorney Lisa Smith noted the potentially controversial situation presented in Halprin’s case.).

9 See id.

10 Id.

believed that Halprin had shot him.”11 Rivas ordered a weapons check and examined Halprin’s .357 pistol and found that “[t]here was no stench of gunpowder, and the smell of the gun-cleaner used on the weapon prior to the robbery was still pungent.”12

Despite Halprin’s minimal involvement in the shooting, he continues to be on death row.13 Some would say we will never know the actual involvement that Halprin had in the murder of Officer Hawkins, whether it was minimal or integral, especially since the people testifying on his behalf are among the surviving Texas Seven and are thus, untrustworthy.14 But whether we can trust the testimony of these or other criminals, should not each and every avenue be addressed before allowing someone to pay the ultimate price?

The Supreme Court addressed the complications of accomplice liability while construing the Eighth Amendment in Enmund v. Florida to mean that, when considering the criminal responsibility of a person for another’s conduct, a criminal’s culpability must be limited to his or her participation in the crime, and his or punishment must be tailored to his or her personal responsibility and moral guilt.15 Despite the limitations applied to the states by the Supreme Court, an exception, albeit a narrow one, was carved out of the Court’s opinion in Tison v. Arizona, holding that “petitioners also fall outside the category of felony murderers for whom Enmund explicitly held the death penaltydisproportional: theirdegree of participation in the crimes was major rather than minor.”16 Whether major or minor, is it unusual or cruel to hold someone accountable, let alone sentence someone to death, for the criminal conduct of another?17 If such a punishment is warranted, what can investigators and prosecutors do to ensure the fairness of the resulting conviction and potentially subsequent death sentence?

The story of the Texas Seven is, understandably, not a story to sympathize with as it is one that involves robbery and murder, but it does illustrate the purpose of this Article: to delineate and address the importance of exhausting all available precautions when convicting a party to a crime,

11 Id.

12 Id.

13 See id.

14 Id. (responding to questions from Judge Magnis, George Rivas “admitted to feeling responsible and guilty for Halprin being condemned to death.” “They showed their true colors, who they really are. . . .They're a team; they'll always be a team. Together until the end,” ADA Smith commenting on the surviving Texas Seven’s attempt to help Halrpin but failed to do so because inconsistent testimony).

15 Enmund v. Florida, 458 U.S. 782, 801 (1982).

16 Tison v. Arizona, 481 U.S. 137, 151 (1987).

17 See U.S. CONST amend. VIII.

especially when capital punishment is on the table. To achieve the purpose of this Article, it will focus on the far-reaching implications of holding someone responsible for the criminal conduct of another, while also analyzing the approach taken by other states, compared to Texas, across the United States. In the end, this Article will attempt to establish that penalizing a party of a crime with death should be among other categories of criminal defendants who, by law, cannot be put to death without substantial evidence of his or her involvement in the crime. In doing so, Part II provides a brief historical analysis of the development of the law of parties. It will provide a foundation on whichtheremainder oftheArticle will build upon. Part IIIwill compare and contrast a three-state sample of statutory approaches in accomplice liability to Canada’s “parties of offences.” Part IV will address the most controversial aspect of accomplice liability the mental-state requirement and provide two seminal cases, Enmund v. Florida and Tison v. Arizona,wheretheSupremeCourtgrappledwith mens rea,whileassessing the constitutionality of Enmund’s and Tison’s death sentences. Part V examinesthecomplexitiesof prosecutingpartiesandpotential improvements in the fairness of accomplice convictions and punishment. Part VI provides a historical analysis of the death penalty, focusing on the development in the United States, and the implications of sentencing an accomplice to death. Finally, Part VII will conclude this Article with a focus on further implications and provides a potential solution to the controversy that surrounds the conviction, and subsequent death sentence, of accomplices.

II. A BRIEF

OF THE DEVELOPMENT OF THE LAW OF PARTIES

At common law, parties to a crime were broken down into four categories:

(1) principal in the first degree; (2) principal in thesecond degree;

(3) accessory before the fact; and (4) accessory after the fact.18 “A principal in the first degree may simply be defined as the criminal actor.”19 In contrast, a principal in the second degree must be physically or constructively present at the time of the criminal offense,20 where the constructive presence of the physically absent accomplice can be satisfied by aiding or abetting the principal in the first degree at the time of the offense from some distance.21 An example of constructive presence is when an accomplice “stands watch for the primary actor, signals to the principal from a distance that the victim is coming, or stands ready (though out of sight) to render aid for the principal

19 Id. § 6.6(a),

20 Id. § 6.6(b),

21 Id.

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HISTORY

18. WAYNE R. LAFAVE, CRIMINAL LAW § 6.6, at 614 (3d ed. 2000).

at 614

at 616.

if needed.”22 Finally, an accessory before the fact does not need to be present at the time of commission and is an accomplice who, prior to the commission of the crime, “orders, counsels, encourages, or otherwise aids and abets another to commit a felony.”23

The four category break down led to procedural difficulties, including the development of rules that “tended to shield accessories from punishment notwithstanding overwhelming evidence of their criminal assistance,”24 which led to legislative reform.25 The three main procedural difficulties included:

(1) criminal jurisdiction; (2) variances between the charging instrument and proof; and (3) the requirement that the principal be convicted.26 In 1861, an English statute was enacted that allowed an accessory before the fact to be “indicted, tried, convicted and punished as if he were a principal felon . . . of a substantive felony, whether the principal felon shall or shall not have been previously convicted.”27 Following this statute, nearly all states adopted a similar statute “abrogat[ing] the distinction between principals and accessories before the fact.”28 Of the states that have adopted and enacted statutes similar to their English counterpart, “most commonarethoseprovisionsdeclaringthat theaccomplicemaybeconvicted even if the principal has not been prosecuted, has not been convicted, has immunity to prosecution or conviction, has been acquitted, or has been convicted of a different offense or different degree of offense.”29 Since the adoption and enactment of statutes similar to that of the Accessory and Abettor Act of 1861, a more modern approach has taken hold: “[a] person is legally accountable for the conduct of another person when: he [or she] is an accomplice of such other person in the commission of the offense.”30 Additionally,

A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission

22. Id. (footnotes omitted).

23 Id. § 6.6(c), at 616. An accessory after the fact, like an accessory before the fact, need not be present at the time of commission but will order, counsel, encourage, or aid and abet the principal after the crime was committed. See id.

24 Id. § 6.6(d), at 617.

25 See id. § 6.6(e), at 619.

26 Id. at 617–18. Each of these procedural difficulties was ultimately overcome with legislative reform, beginning in 1861. See id. § 6.6(e), at 619.

27. Id. § 6.6(e), 619 (quoting the Accessories and Abbettors Act, 24 & 25 Vict. c. 94 (1861)).

28 Id.

29 Id.

30

MODEL PENAL CODE § 2.06(2)(c) (AM LAW INST 2015).

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of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity.31

These statutes intend to discourage would-be criminals not to commit crimesingroups,sincethecrimeofonewillbeimputedtoall.32 All toooften, though, co-conspirators, accomplices, or accessories to the underlying offense are not aware of the ramifications that follow from being in a group that commits a crime, even when this person does not “pull the trigger.”33 The statutes enacted in response to this legislative reform present significant complexities in the prosecution of parties to a crime and vary with respect to their statutory language.34

Isfurtherlegislativereformrequiredtohelpwithstatutoryinterpretation and application at all levels of the criminal justice system, or should there be some form of consensus that jurisdictions can abide by to ensure the equity of a law of party conviction?

III. THREE-STATE SAMPLE V.CANADA’S “PARTIES OF OFFENCES”

Courts and legislatures have used different terms to describe the types of acts (or omissions) that are sufficient to determine a person’s liability as an accomplice.35 Although the difference between the terms is minimal if at all existent the results of any particular case can be determined by the “precise combination of terms included within the applicable accessory statute.”36 Courts encounter significant difficulty when faced with a defendant who is “present at the time of the crime and the circumstances . . . suggest that he [or she] might be there pursuant to a prior agreement to give aid if needed.”37 The variance in language can only make a difficult situation even more difficult.38

31 Id. § 2.06(3).

32 See id.

33. See Sam Kamin & Justin Marceau, Vicarious Aggravators, 65 FLA. L. REV. 769, 772 (2013).

34 See John F. Decker, The Mental State Requirement for Accomplice Liability in American Criminal Law, 60 S.C. L. REV. 237, 239 (2008).

35 See LAFAVE, supra note 18, § 6.7(a), at 621 (emphasizing the most common terms used for accompliceliabilitysuchas“aid,”“abet,”“advise,”“assist,”“cause,”“command,” “encourage,” “induce,” and “procure,” among others).

36 Id. For example, terms such as “advise,” “command,” “counsel,” “encourage,” or “induce” suggest that the accomplice need not be physically involved, or physically participate, in the crime itself. Id.

37 Id. at 622. The difficulty courts face will likely arise with any defendant who is present atthesceneof thecrime,butdidnot physicallyparticipateinthecommissionof thecrimeor murder. See id.

38 See Decker, supra note 34, at 239. “No aspect of . . . [accomplice liability] law is more complex than that relating to the mental state requirement for accomplice liability.” Id.

As stated above, nearly all states have adopted a statute similar to the Accessories & Abettors Act of 1861,39 which supports the assumption that there may be a difference between these states’ approach to holding a party to a crime responsible for the conduct of another.40 In doing so, states have abrogated the distinction between the principal and theaccessories before the fact,41 and most commonly eliminated the requirement that the principal be convicted, prosecuted, or granted immunity before the accomplice’s culpability could be assessed at trial.42 Below, a three-state statutory comparison examines three states’ approaches and compares these approaches to the foreign jurisdiction of Canada.

A. Three-State Sample

The three states chosen are a small sample size of the United States but establish a representative sample of their respective region’s approach to parties to a crime. The three states are Texas, Ohio, and California, which represent the Fifth, Sixth, and Ninth United States Federal Circuit Courts of Appeals, respectively.

1. Texas

Under theTexas Penal Code, namelySection 7.02,a personmaybe held responsible for the conduct of another.43 Section 7.02(b) of the Texas Penal Code provides that:

If, in the attempt to carry out a conspiracy to commit one felony, anotherfelonyiscommitted byoneoftheconspirators,allconspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.44

To hold an alleged co-conspirator responsible for the criminal conduct of another, the jury must find that the alleged co-conspirator’s offense was “committedin the furtherance of[an] unlawful purposeand [the offense] was one that should have been anticipated as a result of the carrying out of the conspiracy.”45 Surprisingly, the jury need not find that the alleged co-

39 See LAFAVE, supra note 18, § 6.6(e), at 619.

40 See id.

41 Id.

42. Id.

43 TEX PENAL CODE ANN § 7.02 (Vernon 2014).

44 § 7.02(b).

45 Id.

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conspirator had the requisite intent of the conspired felony to be held responsible.46

Interpreting this statutory language literally, this means that a coconspirator need only conspire to assist an individual in the commission of a felony burglary of a habitation for the co-conspirator to be held responsiblefortheconductoftheiraccomplice.47 Forexample,Halprin one of the surviving Texas Seven currently on death row is not thought to have pulled the trigger during the murder of Officer Hawkins.48 Nevertheless, under Texas’s Law of Parties or accomplice liability statute Halprin is legally responsible for the conduct of the other six Texas Seven, despite his alleged failure to pull the trigger.49 This contention is based on the hypothetical, yet plausible, situation where Randy Halprin did not fire his weapon, but merely stood by while Officer Hawkins was shot and killed. More specifically, the multiple robberies that Halprin participated in tethered him to the eventual felony-murder of Officer Hawkins, which provided a lawful murder conviction under Section 7.02(b).50

2. Ohio

Like the language in Texas’s accomplice liability statute, Ohio follows a similar approach consistent with the trend following Nineteenth Century legislative reform.51 Section 2923.03(A)(2) of Ohio’s complicity statute states that “[n]o person, acting with the kind of culpability required for the commission of an offense, shall [a]id or abet another in committing the offense.”52 It further states that “[w]hoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender.”53

In Ohio, the youngest person to ever be put on death row was Austin Myers, who was convictedof murder alongwith co-defendant TimMosley.54 A plan that unraveled before Austin’s eyes culminated in Tim stabbing the

46 See id.

47 § 7.02(a)(2), (b).

48. See Cambell, supra note 6.

49 See § 7.02(b).

50 See id.; see Cambell, supra note 6.

51 See LAFAVE, supra note 18, § 6.6(e), at 619.

52 OHIO REV CODE ANN § 2923.03(A)(2) (LexisNexis 2017).

53 § 2923.03(F).

54 See Kristine Phillips, Ohio’s Youngest Death Row Inmate Never Touched the Murder Weapon. Why Was He Sentenced to Death?, WASH POST (Dec. 16, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/12/16/ohios-youngest-death-rowinmate-never-touched-the-murder-weapon-why-was-he-sentenced-todeath/?tid=hybrid_collaborative_1_na&utm_term=.85c7d6be701a

[https://perma.cc/6MKYHUVD].

victim, Justin Back, over twenty times.55 BothTim and Austin cleaned up the blood, wrapped his body in a blanket, and took him to a wooded area where Austin “fired two rounds into [Justin’s] corpse before pouring” septic enzymes over the body to speed up decomposition.56 Although Austin fired two rounds into Justin’s corpse, Austin did not stab nor “strike the fatal blow.”57 Despite Austin’s indirect, but complicit role in Justin’s death, he is on death row and Tim is in prison for life.58 This illustrates an unexpected outcome where “punishment is based not on the level of culpability but on who decides to cooperate.”59 Even if it was Austin’s plan, Tim is still the one who attempted to strangle and eventually stabbed Justin, killing him.60 Is it fair to put someone to death who did not directly participate in the act that results in or causes death?

3. California

Finally, unlike Texas and Ohio, California’s Penal Code does not have a statute that expressly allows an accomplice, or accessory, to be tried as if they were the principal.61 Instead, the California Penal Code seems to limit the extent to which an accessory can be punished.62 Specifically, the California Penal Code, under Section 33, states that “[e]xcept in cases where a different punishment is prescribed, an accessory is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.”63

So, in a situation similar to that of Austin Myers and Randy Halprin, California may try all defendants as either principals or accessories with varyingrangesofpunishment.64 ThiswasnotthecaseforClarenceRayAllen

55 Id. Austinand Timplanned to strangle Justin and dispose of the body, but the three ended up fighting on Justin’s kitchen floor before he was stabbed many times by Tim. Id. As Tim stabbed Justin, Justin was calling out to Austin for help, but Austin replied, “[r]elax; it will be over soon.”

Id.

56 Id.

57 Id. Itis clearthatAustinwas“complicit”totheextent that hedidnot terminatecomplicity or render aid to Justin,but did not attempt to strangle or stab him; the acts that caused Justin’s death.

See id.

58 See id.

59 Id. The prosecution in this case believes that Austin was the brains and Tim was the weapon chosen by Austin to commit a crime against someone who Austin had known for multiple years. See id. This does not make Austin more culpable than Tim though. See id.

60 See id.

61 See CAL PENAL CODE §§ 30–33 (Deering 2017).

62. See § 33.

63 Id.

64 See §§ 31–33; see also People v. McKinzie, 281 P.3d 412, 452 (Cal. 2012) (holding a defendant criminally responsible only for conduct the defendant participated in and was aware of),

and Billy Ray Hamilton, who were both sentenced to death for the murder of seven potential witnesses.65 However, instead of Clarence and Billy acting in concert to commit thecrime, Clarence, while behind bars, “directed a hit man to kill seven witnesses . . . whose family owned Fran’s Market” in Fresno, California.66 Such a crime, where one directs another to commit a multimurder, is the very reason we have accomplice liability. As compared to Halprin and Austin, we see that there is much less room for argument for or against Billy’s culpability.67

Upon review of our three-state sample’s statutory approaches to parties to a crime, there is little variance between the statutes themselves, leaving differences between these states in the hands of those interpreting them who are bound by jurisprudence in their jurisdiction. What is there, if anything, that could be done to narrow the meaning of these statutes? Besides the case described from California, does it not seem that these statutes are overly broad, especially when applied to cases that carry a potential death sentence?

B. Canada’ s “Parties to Offences”

Under Canada’s Criminal Code, “[e]very one is a party to an offence who[:] (a) actually commits [the offense]; (b) does or omits to do anything for the purpose of aiding any person to commit [the offense]; or (c) abets any person committing [the offense].”68 The statute continues and further identifies those who can be a party to an offense.69 However, in Canada, if a party to a crime is charged with murder, the Crown must establish that the charged party had the requisite mens rea requirement,70 which means that the “Crown must prove that the accused party intended death or was reckless

cert. denied, 569 U.S. 906, overruled on other grounds by People v. Scott, 349 P.3d 1028 (Cal. 2015).

65 See California Executes Oldest Condemned Inmate, ORANGE CTY REGISTER (Jan. 17, 2006, 3:00 AM), https://www.ocregister.com/2006/01/17/california-executes-oldest-condemnedinmate/ [https://perma.cc/72F8-CDKJ].

66 Id.

67 See supra notes 1–13, 54–58 and accompanying text.

68. Crim. Code, R.S.C., 1985, c. C-34, s. 21, available at http://lawslois.justice.gc.ca/eng/acts/C-46/page-3.html#h-5 [https://perma.cc/RYU4-3ZTT].

69 Id. at s. 21(2). Here, the code describes parties who come to form a “common intention.” Id. Specifically, [w]here two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. Id.

70. Lisa Silver, Section 21- Modes of Participation by Being a Party to an Offence Part One: Episode 23 of the Ideablawg Podcasts on the Criminal Code of Canada, IDEABLAWG (May 19, 2014), http://www.ideablawg.ca/blog/2014/5/19/section-21-modes-of-participation-by-being-aparty-to-an-off.html [https://perma.cc/DD9G-TKEX].

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whether or not death ensued.”71 In establishing the party’s mens rea, the Crown is required to prove that the party had a “subjective foresight of death.”72

Canada’s statutory scheme seems to follow similar thinking in regards to the accountability of parties to a crime as reasoned in the United States.73 But the presence of the statutory language, “actually commits [the offense],” representsasimplifiedstatutoryapproachandisamajordifferencecompared to the Texas, Ohio, and California statutes.74 On the other hand, our threestate analysis represents a broad all-encompassing statutory approach, allowing far-reaching criminal responsibility for the conduct of another, which was the intended purpose of enacting the law of parties.75 It seems that there is an underlying consensus with respect to the criminal liability of accomplices, whether we look to jurisdictions within the United States or abroad.

But Canada unlike the three states in our three-state sample has abolished capital punishment.76 Does its statutory approach to the law of parties in some way resemble its approach to crime in general? Are laws based on deterrence death penalty and the law of parties truly deterring the crime or actions being prohibited? With these questions in mind, it is important to point out that, although Canada has abolished capital punishment, its homicide rates have only recently begun to decrease, as has the rate in the United States.77 With one jurisdiction continuing capital punishment, to some degree, and another abolishing it, it is interesting to consider whether a jurisdiction’s overall outlook on crime and rehabilitation influences its statutory language.78

But does this language provide more flexibility in the prosecution of a party to a crime, or does the language represent a way to hold a party to a crime responsible for an act only when he or she has participated, was aware of or foresaw the consequences, or failed to act when they had a duty to do so?

71 Id.

72 Id.

73 See supra Part III.

74 Id.

75 See supra notes 23–25 and accompanying text.

76 See John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 STAN L. REV 791, 799 (2005).

77. See id. at 799.

78 Id. at 801 ( “[In] examining these time-series data . . . it is crucial to take account of the fact that most of the variation in homicide rates is driven by factors that are common to both death penalty and non-death penalty states, and to both the United States and Canada.”).

IV. GRAPPLING WITH MENS REA

We now have a general understanding of the approach taken in the majority of the United States and a foreign jurisdiction, but we cannot help but see the common-law undertones discussed above. As mentioned briefly, and alluded to in a three-state statutory analysis, the mental state, or mens rea, represents a difficult and controversial aspect of prosecuting a party to a crime. Below, we will examine two important cases regarding parties to a crime Tison v. Arizona and Enmund v. Florida, the mental state requirement, and the Eighth Amendment of the United States Constitution.

A. Enmund v. Florida & Tison v. Arizona

In order to fully understand Tison v. Arizona and its application of jurisprudence to an accomplice’s mental state, we must briefly give context to the case of Enmund v. Florida. In Enmund, Earl Enmund was the driver of a getaway car of an armed robbery of a habitation that resulted in the death of the occupants of the targeted habitation.79 The Supreme Court, “citing the weight of legislative and community opinion, found a broad societal consensus, with which it agreed, that the death penalty was disproportional to the crime of robbery-felony murder ‘in these circumstances.’”80

The Court pointed out that thirty-two American jurisdictions permitted the death penalty for felony murders, but Florida was one of only eight jurisdictions that authorized the death penalty “solely for participation in a robbery in which another robber takes life.”81 Furthermore, the Court compared this relaxed mental state requirement to that of eight states on the opposite “end of the spectrum [that require] a finding of intent to kill beforedeathcouldbeimposedinafelony-murder caseandoneStaterequired actual participation in the killing.”82 Those states that fall in between the two extremes can be split into two categories: “three authorized the death penalty

79 Tison v. Arizona, 481 U.S. 137, 146 (1987). The Florida Supreme Court found the inference that Enmund was waiting in the car on the side of the road in order to help his accomplices escape sufficient to support his death sentence: The only evidence of the degree of [Enmund's] participation is the jury’s likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys’ money. The evidence, therefore, was sufficient to find that the appellant was a principal of the second degree, constructively present aiding and abetting the commission of the crime of robbery. This conclusion supports the verdicts of murder in the first degree on the basis of the felony murder portion of section 782.04(1)(a).

Id. at 146–47.

80 Id. at 147.

81 Id. (quoting Enmund v. Florida 458 U.S. 782, 789 (1982)).

82 Id.

whenthedefendant actedwithrecklessnessorextremeindifference tohuman life, and nine others, including Arizona, required a finding of some aggravating factor beyond the fact that the killing had occurred during the course of a felony before a capital sentence might be imposed.”83 Undertaking its own proportionality analysis, the Enmund Court found that, although armed robbery is a serious offense, “penalty of death is plainly excessive; the imposition of the death penalty for robbery, therefore, violates the Eightand Fourteenth Amendments’ proscription ‘against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.’”84 Furthermore, the Court found that Enmund’s participation was “so tangential that it could not be said to justify a sentence of death,”85 and that Enmund’s sentence was “excessive” under the Eighth Amendment for four reasons:

First, robbery, while a serious offense, was not by itself severe enough to warrant the most extreme penalty.Second, the state could not base Enmund’s sentence on the culpability of the actual killers; rather it must base Enmund’s sentence on his own culpability. Third, the Court expressed doubt that the death penalty could serve as an effective deterrentfor people who do notkillor intend to kill, and suggested that capital punishment could only deter premeditated or deliberate murders. Finally, the Court considered the retributive goal of punishment. It concluded that because Enmund’s punishment had to be limited to his “personal responsibility and moral guilt,” the execution of Enmund “to avenge two killings that he did not commit and had no intention of committing or causing d[id] not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts.”86

83 Id. After the Court surveyed the States’ felony-murder statutes, the Enmund court: Examined the behavior of juries in cases like Enmund’s in its attempt to assess American attitudes toward capital punishment in felony-murder cases. Of 739 death row inmates, only 41 did not participate in the fatal assault. All but 16 of these were physically present at the scene of the murder and of these only 3, including Enmund, were sentenced to death in the absence of a finding that they had collaborated in a scheme designed to kill. The Court found the fact that only 3 of 739 death row inmates hadbeensentencedtodeathabsentanintent tokill,physicalpresence, or directparticipation in the fatal assault persuasive evidence that American juries considered the death sentence disproportional to felony murder simpliciter

Id.

84 Id. (citing Weems v. United States, 217 U.S. 349, 371 (1910)).

85 Id. The Court emphasized that the “focus [had to] be on [Enmund’s] culpability, not on that of those who committed the robbery and shot the victims, for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence.’” Id. at 149 (citing Enmund v. Florida, 458 U.S. 782, 798 (1982)).

86 Omar R. Ebeid, Death by Association: Conspiracy Liability and Capital Punishment in Texas, 45 HOUS L. REV 1831, 1841 (2008) (quoting Enmund, 458 U.S. at 801).

584 SOUTH TEXAS LAW REVIEW [Vol. 59:571

With the standard established in Enmund in mind, we now shift our focus to Tison v. Arizona, in which the Supreme Court grappled with the mental-state requirement. In Tison, Gary Tison’s sentence of life imprisonment, as a result of a prison escape that resulted in the death of a prison guard, led his wife and sons to devise another escape.87 On July 30, 1978, Tison’s three sons carried a large ice chest full of guns into the Arizona State Prison in Florence.88 After arming their father and his cell mate Greenawalt, they locked prison guards and other guests in a storage closet and fled the prison.89 At this point, no shots were fired.90

After the group fled the prison grounds, they abandoned the initial getaway car for another, and made their way to an isolated house where they hid for a couple of days.91 The group then made their way towards Flagstaff, but their car had a flat tire, so they decided to flag down a passing car to steal it.92 As one stood in front of the disabled car, four others laid in wait on the side of the road.93 After one car passed by without stopping, a second car, carrying“JohnLyons,hiswifeDonnelda,his[two]-year-oldsonChristopher, and his [fifteen]-year-old niece, Theresa Tyson, pulled over to render aid.”94 All four were later executed by Gary Tison and Greenawalt (the Prisoners).95

After several days on the run, the group encountered a police roadblock, where a shoot-out ensued.96 One of Tison’s sons, Donald, was killed, while Gary Tison escaped into the desert; the two other sons of Tison, Raymond and Ricky, and Greenawalt were taken into custody.97 The three defendants were individually tried for capital murder of the four victims, as well as for the associated crimes of armed robbery, kidnaping, and car theft.98 The capital murder charges were based on Arizona’s felony-murder statute that

87 Tison, 481 U.S. at 139 (preparing to assist Tison in a prison escape, the Tison family began gathering “an arsenal of weapons.”).

88 Id.

89. Id.

90 Id. At this point, the Tison sons could be held responsible for assisting the inmates escape and, false imprisonment. See id.

91. Id.

92 Id. at 139–40.

93 Id. at 140.

94 Id. After forcing John, his wife, son, and niece into the Lincoln the Tisons were driving, Johnbeggedfor the Tisons’ mercy. Id. Raymond, oneof GaryTison’s sons, recalledhis father being conflicted about what to do. Id.

95 Id. at 141. Neither of Tison’s sons “made an effort to help the victims, though both later stated they were surprised by the shooting.” Id.

96. Id.

97 Id. The father, Gary Tison, an actual participant in the murder of the family who stopped to render aid, died in the desert from exposure. Id.

98 Id.

2018]

TEXAS’S LAW OF PARTIES 585

makes each participant liable fortheacts oftheiraccomplices the Prisoners.99 Each defendant was convicted of the four murders.100

The Tison court was presented with a question as to whether “the petitioners’participationintheeventsleadinguptoandfollowingthemurder of four members of a family makes the sentences of death imposed by Arizona courts constitutionally permissible although neither petitioner specifically intended to kill the victims and neither inflicted the fatal gunshot wounds.”101 In answering that question, the Arizona Supreme Court utilized their interpretation of Enmund v. Florida’s requirement that an accomplice “intend to kill,” which led them to hold that, because “[p]etitioner’s participationuptothemomentofthefiringofthefatalshotswassubstantially the same as that of the Prisoners,” Raymond and Ricky Tison intended to kill the four victims shot by the Prisoners.102

Applying the Enmund standard to the Tisons’ case, the Court accepted Tison’s sons’ argument that they did not “intend to kill.”103 Since there was no evidence that either of the Tison sons “took any act which he desired to, or was substantially certain would, cause death,”104 the Court concluded that the Enmund culpability requirement intend to kill is satisfied “if the defendant is a major participant in the crime and showed a ‘reckless indifference to human life.’”105 The Court recognized that the Arizona Supreme Court did not attempt to establish the sons’ intent, in a traditional sense, but instead “attempted to reformulate ‘intent to kill’ as a species of

99 Id. The felony-murder law provided that “a killing occurring during the perpetration of robbery or kidnaping is capital murder.” Id. Both accomplice liability and the capital murder statutes, Arizona Revised Statutes Annotated Section 13-452 and Section 13-139 (1956), were repealed in 1978. Id.

100 Id. at 141–42. On direct appeal, the Arizona Supreme Court affirmed, finding: The record establishes that both Ricky and Raymond Tison were present when the homicides took place and that they occurred as part of and in the course of the escape and continuous attempt to prevent recapture. The deaths would not have occurred but for their assistance. That they did not specifically intend that the Lyonses and Theresa Tyson die, that they did not plot in advance that these homicides would take place, or that they did not actually pull the triggers on the guns which inflicted the fatal wounds is of little significance.

Id. at 143.

101 Id. at 138.

102 Id. at 145. The Arizona Supreme Court also distinguished Enmund stating, “unlike in the present case, the defendant [in Enmund] did not actively participate in the events leading to death (by, for example, as in the present case, helping abduct the victims) and was not present at the murder site.” Id.

103 Id. at150. The court further states that“[t]raditionally, ‘one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.’” Id. (quoting W.LAFAVE &A.SCOTT,CRIMINAL LAW § 28, at 196 (1972)).

104 Id.

105 Ebeid, supra note 86, at 1842.

foreseeability,”106 which is broader than the intent described in Enmund. 107 Pointingout that itiscommon for participantsin violent feloniesto anticipate that lethal force may be used, the Court stated that Tisons’s sons fell outside of the category of felony murders in Enmund, which permitted the death penalty under the Eighth Amendment.108

B. Categorical Approach to the Mental-State Requirement

From our analysis of Enmund and Tison, we see that interpreting and applying the law to facts is no easy task. One cannot help but contemplate the number of cases lost in the mists of time that were not afforded such a thorough and complete analysis by the Supreme Court. Picking up where our two Supreme Court cases left off, along with our general understanding and applicationofaccompliceliability,wewilldelveevendeeperintothementalstate requirement’s complexity.

Whenajurisdictionisdecidingwhetherapersonhascommittedacrime, it is helpful to separately consider whether the person “engaged in the requisite acts (or omissions) and to whether he [or she] had the requisite mental state.”109 In general, “one is liable as an accomplice to the crime of another if he [or she] (a) gave assistance or encouragement or failed to perform a legal duty to prevent it (b) with the intent thereby to promote or facilitate the crime.”110 But this line is not always clear cut, especially with the inconsistencies between the “plain language of states’ accomplice liability legislation and its receptive interpretation in state courts.”111

In examining the difficulties of satisfying the mens rea requirement, John F. Decker identified three approaches to accomplice liability.112 In developing these approaches, Decker examined “legal literature, case law, and state legislation concerning the mental state requirement for accomplice

106 Tison, 481 U.S. at 150.

107. Id.

108 Id. at 151. At the same time, the Court recognizes that Tison’s sons also “fall outside of the category of felony murderers for whom Enmund explicitly held the death penalty disproportional: their degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life.”

Id.

109 LAFAVE, § 6.7, at 621 (footnotes omitted). This same approach will be used to determine the limitations in determining accomplice liability. Id.

110 Id. “There is a split of authority as to whether some lesser mental state will suffice for accomplice liability, such as mere knowledge that one is aiding a crime or knowledge that one is aiding reckless or negligent conduct which may produce a criminal result.” Id. Is this to say that Austin or Randy could be put to death for merely knowing that their accomplice intended to hurt or kill the victim? See id.

111 Decker, supra note 34, at 239.

112 Id. at 239–40.

liability.”113 These approaches will be described and examined below and applied to the three-state sample laid out above.

First,theCategoryIapproach representsanassertionthat an accomplice “should only be liable for the acts of a principal if that individual acted with the specific intent to promote or assist the principal’s commission of the crime.”114 This approach “holds that a mental state of knowledge or recklessness” will be insufficient to hold the accomplice criminally responsible for the conduct of the principal.115 An example provided by Decker explains that:

[I]f A loans his gun to B knowing B intends to use it to shoot his neighbor’sbarkingdog, A wouldnotbeanaccompliceto B’sactunless he himself intends that B’s neighbor’s dogbe shot. Likewise, if X gives the keys of her car to Y, who is intoxicated, knowing Y intends to drive the car, X would not be criminally liable if Y’s reckless driving kills or injures an innocent person.116

Second, the Category II approach or the “statutorily prescribed mental state,” represents a “more expansive view . . . [where] an individual may be liable for a crime the individual did not specifically intend for the perpetrator to commit.”117 Here, culpability is imposed if the accomplice’s mental state is the same as the specific crime.118 When states apply the Category II approach, they are relying on prescribed statutory language in assessing whether the alleged accomplice had the required mental state, “whether the requisite mental state for conviction is intent, knowledge, recklessness, or criminal negligence.”119 Decker, again, provides examples of the Category II approach, applying this category to the hypotheticals discussed under Category I:

[W]here A loans his gun knowing of B’s intent to shoot the neighbor’s barking dog, A would now be criminally liable for the knowing, unauthorized infliction of injury or death on an animal, even though A has no intent for the crime occur. Likewise, where X gives her car keys to the intoxicated Y knowing Y will drive her car and Y recklessly kills

113 Id. at 239.

114 Id. at 240. This approach provides a “very limited, narrow approach” that depends upon a finding that the accomplice’s “purpose [was] to encourage or assist another in the commission of a crime.” Id. at 239 (internal quotations omitted).

115 Id. at 240. Furthermore, “[j]urisdictions following this approach [(e.g., Texas)] will only hold an alleged accomplice liable for the crimes that the alleged accomplice intended a perpetrator to commit.” Id.

116. Id. at 240–41.

117 Id. at 241.

118 Id.

119 Id.

Z, X would be liable for reckless homicide along with Y if we agree X harbors a reckless state of mind.120

In these hypotheticals, “[b]oth A and X would be liable because each acts with the mental culpability required for the commission of their respective offenses.”121

Finally, the Category III approach is the broadest and provides culpability “for all the natural and probably consequences of the intended crime.”122 In applying this approach, states California avoid establishing whether the alleged accomplice had “the specific intent required by the Category I approach or the statutorily prescribed mental state mandated by the Category II approach.”123 This means that any crime committed outside of the intended crime, whether foreseeable or anticipated by the accomplice, will be attributed to the accomplice, resulting in culpability.124 Again, we refer to the hypotheticals provided by Decker to give the Category III approach context, resulting in quite interesting consequences:

Assume after B shoots his neighbor’s barking dog with A’s gun, the neighbor, C, becomes angry and engages B in a physical altercation during which B shoots and injures C. If we agree the altercation and resultant injury suffered by C are natural and probable consequences of A’s arming B while knowing of B’s intentions, A would be liable as an accomplice for B’s battery of C. In the example where X gives her keys to the intoxicated Y (which itself is a violation of the state’s motor vehicle code), now assume Y not only recklessly becomes involved in a fatal vehicle crash but also that Y collides with a gasoline truck, which explodes and causes a nearby building to catch fire. If we agree that when X gives the intoxicated Y the keys to her car she should be held accountable for all natural and probable consequences, it is arguable that X is liable not only for reckless homicide if Y is involved in a fatal collision while driving X’s car but also for criminal damage to property or perhaps arson. Or, worse yet, if a firefighter or building occupant dies in the fire, it might even be asserted that X is liable for manslaughter.125

The results of such an approach have been criticized by members of the academic community, including Wayne LaFave, because Category III holds an alleged accomplice to the “same culpability as a principal for a crime, the

commission of which the accomplice had no knowledge of or intent to assist in.”126

As courts continue to grapple with the mens rea requirement when applying accomplice liability statutes, it is important to recognize that the situation becomes even more controversial when accomplices are sentenced to death. Should an alleged accomplice be potentially subject to the death penalty under Category I, Category II, or Category III? If so, what can we do to overcome the complexities of prosecuting an accomplice in the felonymurder context and ensure the fairness of that conviction and subsequent punishment?

V. ALLEGED ACCOMPLICES & THE COMPLEXITIES OF PROSECUTING PARTIES TO A CRIME

The death penalty is already a controversial topic. Combining it with accomplice liability when an alleged accomplice is sentenced to death for a crime committed along with or by another co-defendant, we are presented with a situation where an accomplice’s culpability may not be appropriate. Using the categories laid out above, it seems that this “situation” will arise more often when Categories II and III are applied, as opposed to Category I.127 Because Category II and III are broad, they have more room for error when applied.128 Below we will examine the obstacles that are presented in the prosecution of accomplices and why we should be more careful when we pursue the death penalty in criminal conspiracies or parties to a crime charges.

A. The Evidentiary Complexities of Multiple Parties to a Crime

When there are multiple parties to a crime, there are undoubtedly multiple versions of a similar story, creating a risk of false or misleading testimony.129 Statements from one co-defendant implicating the other are often enticed and involve an exchange of leniency or some form of immunity from prosecution.130 Because the government is inducing these statements, the government should ensure, to the best of its ability, that the testimony elicited from the co-defendant is truthful, whether this be through

126 Id. Fortunately, the Category III approach is a minority view. Id.

127 See supra notes 104–06 and accompanying text (discussing how the specific intent requirement of a particular crime inherently presents a significant hurdle for prosecutors to overcome).

128 See id.

129. See Christine J. Saverda, Accomplices in Federal Court: A Case for Increased Evidentiary Standards, 100 YALE L.J. 785, 785 (1990).

130 See id. at 786.

corroboration or some other means.131 To allow a co-defendant to commit perjury and implicate a co-defendant who may be less culpable than the protected, testifying defendant is an extreme disservice to the implicated defendant and can only diminish the viability of the criminal justice system.132

To overcome this significant complication, prosecutors and investigating officers must scrutinize the testimony and evidence to ensure the fairness of the resulting conviction.133 This assertion is justified for two reasons: (1) “the accomplice has especially compelling reasons to testify in his own behalf,”134 sometimes representing a race between co-defendants to turn on the other; and (2) an accomplices ability to claim to have insider knowledge,135 allowing the co-defendant to inflict as much damage has he or she wants to the implicated defendant by “deviat[ing] from the truth without arousing the jury’s suspicion.”136 This second reason presents the most damning potential result: “the increased probability that a jury will, unquestioningly and with little scrutiny, accept [the protected defendant’s] story as true because of its inherent ‘believability.’”137

With that in mind, consider a co-defendant who committed a crime that qualifies for capital punishment. Who is to say that the protected and testifying co-defendant did not commit the crime being investigated and beat the other co-defendant to the interrogation room, where he or she will implicate the other with inaccurate and compelling insider knowledge?

In the case of Austin Myers who stood idly by while his co-defendant, Tim Mosley, stabbed the victim to death Austin is on death row while Tim is merely serving life in prison.138 Tim, the person who delivered the fatal wounds to the victim, testified against Austin at his murder trial.139 How could the person who stabbed someone twenty times, causing the victim’s death, receive a life sentence and the co-defendant, who did not render help, be put on death row?

The complexities of evidence-based convictions cannot be ignored. Absent some glaring facts not outlined in Austin Myers’s case, these results

131 Id. at 785.

132. See id. at 785–86

133 See id. at 786.

134 Id. (emphasizing that it is not only in the defendant’s best interest to implicate other parties to the crime, while playing up those parties’ role, but to minimize his or her role in the crime committed).

135 Id.

136. Id. at 786–87. This advantage allows the accomplice to manipulate the facts during their testimony, since they are likely familiar with the events leading up to the commission of the crime. See id. at 787.

137. Id. at 787.

138 See Phillips, supra note 54.

139 See id.

are absurd. When we have multiple parties to a capital punishment crime, we must exhaust all precautions to ensure the fairness of subsequent convictions and punishment. How can prosecutors and defense attorneys ensure that justice is served? Could mandated lesser-included offense instructions be a potential solution?

B. Exhausting All Precautions to Ensure the Fairness of Convictions & Punishment

To ensure a sound conviction, especially involving multiple defendants, we must exhaust all available precautions to better position ourselves for the administration of justice. To achieve this end, we adhere to doctrines like the Accomplice-Witness Rule,140 Brady disclosure rules and the Michael Morton Act.141 Notwithstanding these doctrines, what else can be done to increase the accuracy of convictions? The answer may be a mandated lesser-included offense jury instruction. Such a solution would allow the jury to decide whether a co-defendant who did not pull the trigger deserves the greater or lesser-included crime.142

The Texas Court of Criminal Appeals established a “single-method lesser-included approach” to alleviate any potential constitutional issues, namely due process violations, that may arise during the prosecution of a defendant with a lesser-included offense jury instruction.143 The Court of Criminal Appeals held that “all courts are to abandon evidence-based methods of analyzing lesser-included offense charges and must now adhere to a cognate-pleadings analysis.”144 Evidence-based methods allow the reviewing courts to examine the record to determine whether a lesserincluded offense’s elements were satisfied ex post facto, implicating due process concerns.145 A cognate-pleading approach, on the other hand, includes a determination as to whether there is a lesser-included offense a

140 TEX CODE CRIM PROC ANN art. 38.14 (Vernon 1979). Article 38.14 states that a “conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Id. However, the accomplice-witness rule is only applicable during the guilt and innocence phase of trial, not the punishment phase when the death penaltyis, in capital murder cases,literallyon the table. See TEX CRIM PRACTICE GUIDE, § 73B.04 (LexisNexis 2018).

141. See generally Laura Bayouth Popps, Prosecutorial Misconduct and the Role of Discipline, 80 TEX B.J. 430–31 (2017) (explaining the implications of disclosure requirements in Texas).

142. See Amanda Peters, Thirty-One Years in the Making: Why the Texas Court of Criminal Appeals’ New Single-Method Approach to Lesser-Included Offense Analysis is a Step in the Right Direction, 60 BAYLOR L. REV 231, 234–35 (2008).

143. See id. at 253–54.

144 Id. at 254.

145 See id. at 252–54.

question of law and to “provide notice to the defendant [that] must be . . . capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense.”146 Because the cognate-pleadings approach restricts a prosecutor’s flexibility in trying a case, “prosecutors will need to be more accurate and honest in assessing the weaknesses of each case prior to trial.”147 For example, “[i]f a prosecutor does not establish every element of the offense during trial, and if the lesser-included offense relied upon before in similar cases is no longer permissible using the cognate-pleadings approach, the jury will be required to acquit the defendant.”148 But, prosecutors are less likely to include the lesser-included offenses in the jury instruction, leaving this up to defense attorneys.149 Although the evidence-based approaches to lesserincluded offenses did implicate due process concerns to some degree, this “liberal method[] of analysis” made lesser-included offenses less attainable for defense attorneys and their clients.150 While the lesser-included offense under the cognate-pleading approach puts more of a burden on defendants and their attorneys, the prosecution, who has the burden on proof, must ensure the accuracy and honesty of the cases they try, which will improve the complexities of trying multiple parties to a crime.151

VI. THE DEATH PENALTY

Arguably, mandated lesser-includedoffensejuryinstructionsarenot the solution to cases where one co-defendant has implicated another or where alleged accomplices are charged with capital murder. Should we still allow the death penalty in cases where there seems to be an intent to harm, with death somewhat foreseeable, or in cases where there is material participation inthedeatheventhoughtheimplicatedco-defendant didnot cause thedeath? In thelastpart ofthisArticle,wewillexaminethehistoryofthedeathpenalty and the implications of sentencing accomplices to death.

A. A Historical Analysis of the Death Penalty

TheEighthAmendment oftheConstitutionproscribescruelandunusual punishments.152 Thelanguageusedinthe Eighth Amendment was takenfrom

146 Id. at 253 (quoting Hall v. State, 225 S.W.3d 524, 535–37 (Tex. Crim. App. 2007)).

147. Id. at 258.

148 Id.

149 Id.

150. See id.

151 See Popps, supra note 142, at 430.

152 U.S. CONST amend. VIII.

the English Bill of Rights of 1689,153 which is thought to be “primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature.”154 Besides the origin of the Eighth Amendment and its language, the history of the death penalty in the United States has developed in Supreme Court case law.

In general, the Supreme Court has upheld the death penalty, though it has been limitedthroughout itstenureas an applicable punishment forcapital offenses.155 Specifically, the Eighth Amendment, as construed by the Supreme Court, is “[h]istorically . . . thought to have been directed at ‘proscribing tortures and other barbarous methods of punishment.’”156 More recently, the Supreme Court has “expanded the scope of the amendment to proscribe both excessive and arbitrarily inflicted punishments even if not ‘barbar[ic].’”157 Since these constitutional limitations are not static but dynamic based on the “evolving standards of decency that mark the progress ofamaturingsociety,”158 theSupremeCourt “look[s]toobjectiveindiciathat reflect the public attitude toward a given sanction.”159 But the Court’s analysis does not stop there: “[T]he Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment.”160

The Supreme Court cases of Furman v. Georgia, Gregg v. Georgia, and Woodson v. North Carolina established further Eighth Amendment limitations on the death penalty. In Furman, Justice Brennan stated that “the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others.”161 In Gregg, the majority stated that, when “discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”162 But, in Woodson, the Court invalidated a North Carolina statute that mandated the death penalty for all first-degree murderers,163 concluding

153. Furman v. Georgia, 408 U.S. 238, 243 (1972).

154 Id. at 242.

155 Ebeid, supra note 86, at 1835.

156. Id. (citing Gregg v. Georgia, 428 U.S. 153, 169–70 (1976) (plurality opinion) (some internal quotations omitted)).

157 Id.

158. Trop v. Dulles, 356 U.S. 86, 101 (1958).

159 Gregg v. Georgia, 428 U.S. 153, 173 (1976).

160 Id. at 182.

161. Furman v. Georgia, 408 U.S. 238, 274 (1972) (Brennan, J., concurring).

162 Gregg, 428 U.S. at 189 (referencing Furman).

163 Woodson v. North Carolina, 428 U.S. 280, 301, 305 (1976) (plurality opinion).

that evolving standards of decency required a prohibition of the mandatory death sentence.164 Unlike Georgia’s statutory approach, North Carolina’s did not allow a “particularized consideration of relevant aspects of the character and record of each convicted defendant,”165 suggesting that a mandatory scheme could lead to greater arbitrariness in sentencing some juries might refuse to convict in spite of the evidence if they felt the death penalty was not warranted in a particular case.166

Sincethe1976decisions,theCourthascontinuallyrefinedthestandards established in Furman, Gregg, and Woodson, including a requirement that “genuinely narrow[s] the class of persons eligible for the death penalty and [to] reasonably justify the imposition of a more severe sentence on the defendant comparedtoothersfoundguiltyofmurder.”167 Similarly,theCourt invalidated an aggravating circumstance under Georgia’s scheme that allowed a sentence of death “based upon no more than a finding that the offense was outrageously or wantonly vile, horrible and inhuman.”168 And, since “[a] person of ordinary sensibility could fairly characterize almost every murder as outrageously or wantonly vile, horrible and inhuman,”169 the aggravating circumstance failed to restrain arbitrary sentencing because it provided little guidance to the jury.170

With this progression of the death penalty in mind, how does this doctrine applyto thelaw of parties? As laidout above, the Enmund and Tison rules prohibit the imposition of the death penalty on defendants who did not kill or intend to kill unless the defendant was a major participant and displayed reckless indifference to life.171 But, as seen in Texas Statutes,172 statutory language can be written in such a way that “dispenses . . . anyintent requirement, thereby allowing a defendant to be convicted of any offense committed by a co-conspirator, as long as it ‘was committed in furtherance of the [attempted conspiracy] and was one that should have been anticipated’ by the defendant.”173

Based on our three-state analysis, we have already seen that there is a general consensus among states when it comes to their statutory approach to

164. See id. at 292–93.

165 Id. at 303.

166 See id. at 302–03.

167. Zant v. Stephens, 462 U.S. 862, 877 (1983).

168 See Godfrey v. Georgia, 446 U.S. 420, 423, 428 (1980) (plurality opinion).

169 Id. at 428–29.

170. See id. at 429.

171 See supra Section IV.A; see also Ebeid, supra note 86, 1853 (“[T]he Enmund / Tison rule also prohibits the imposition of the death penalty on defendants who did not kill or intend to kill unless the defendant was a major participant and displayed reckless indifference to life.”).

172 See TEX PENAL CODE ANN § 7.02 (Vernon 2014).

173 Ebeid, supra note 86, 1853.

accomplice liability.174 If this is indeed the case, then there must be states who have amended their statutory language to comply with Enmund and Tison, but nonetheless, allows the prosecution of accomplices for capital offenses even when they did not kill, intend to kill, or materially participate.175

B. Implications of Sentencing Accomplices to Death

Up to this point, we have focused on an analysis of parties to a crime, providing a foundation for this section. Here, we will examine the implications of sentencing a party to a crime to death, especially when the party subject to the death penalty is one who did not pull the trigger but is nonetheless held criminally responsible for the conduct of another. We will focus on how Texas a majority state, representing precedential authority among death-penalty states is avoiding the Enmund and Tison rule. This includes examining how Texas’s anti-parties charge avoids Enmund and Tison rule implications, and the role of jurors in deciding the applicable punishment of the party to a crime.

1. Manipulating the Enmund and Tison Rules?

Under Texas Penal Code Section 7.02, a person is responsible for the criminal conduct of another party if, while “acting with intent to promote or assist,” the person “solicits, encourages, directs, aids, or attempts to aid” the other party during the commission of a crime.176 Some believe that Section 7.02 effectively avoids the issue of intent, “because it requires the jury to find, during the guilt-innocence phase, that the defendant ‘inten[ded] to promote or assist the commission of’ an intentional murder.”177 Furthermore, it is believed that Section 7.02(b) “dispenses with any intent requirement, thereby allowing a defendant to be convicted of any offense committed by a co-conspirator, as long as it ‘was committed in furtherance of the [attempted conspiracy] and was one that should have been anticipated’ by the defendant.”178 For Section 7.02 to allow for this “runaround,” would go against the Supreme Court’s rulings in Enmund and Tison, 179 making the statute unconstitutional.

In response to Enmund and Tison, theTexas Court of Criminal Appeals, in Cuevas v. State of Texas, addressed Texas’s death penalty scheme in light

174. See supra Section III.A.

175 See infra Section VI.B.

176 See § 7.02(a)(2).

177. Ebeid, supra note 86, at 1853.

178 Id.

179 See supra Part IV.

of the Court’s reasoning in Enmund and Tison. 180 Ultimately, the Court of Criminal Appeals found that the rules laid down in Enmund and Tison could be satisfiedbyansweringaspecial issueduringthe punishment phaseof trial: “whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result.”181 For the special issue to be answered, the jury was required to focus exclusively on the defendant’s own conduct and to determine not only that the defendant reasonably expected death to result, but also that he or she acted deliberately.182

But, as of 1991, the deliberateness special issue was deleted from the special issues to be decided by the jury.183 In its place, the Texas legislature added the “anti-parties charge,” which “requires the jury to find that the defendant killed, intended to kill, or anticipated that a life would be taken.”184 More specifically, the jury must consider all the evidence, including the defendant’s background, criminal history, and character, and all circumstances of the offense that would make the death penalty appropriate (or inappropriate).185 And if the jury answers both of those questions in the affirmative, they will be asked to determine:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character, and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death penalty be imposed.186

Where a “no” to either of the first two questions will result in a life sentence, a “yes” to the first two and a “no” to the third will result in the defendant being sentenced to death.187 But, is the anti-parties charge adequate?

In Ladd v. State of Texas, the Court of Criminal Appeals concluded, while rejecting a Enmund and Tison challenge, that “[a]nticipating that a human life will be taken is a highly culpable mental state, at least as culpable astheoneinvolvedin Tison v. Arizona ”188 Althoughtheanticipationofdeath is a highly culpable mental state, is that anticipation enough to charge and

180 Cuevas v. State, 742 S.W.2d 331, 343 (Tex. Crim. App. 1987).

181. See id.

182 See id.

183 See 6 MICHAELB.CHARLTON, TEXAS PRACTICE:TEXAS CRIMINAL LAW § 10.3, at 160–62 (1994).

184 Ebeid, supra note 86, at 1854.

185 CHARLTON, supra note 183, § 10.3, at 162.

186. Id.

187 Id.

188 Ladd v. State, 3 S.W.3d 547, 573 (Tex. Crim. App. 1999) (emphasis omitted).

convict someone with capital murder? The answer to this question is found in the Supreme Court’s rejection of the Arizona Supreme Court’s interpretation that “[i]nten[t] to kill [under Enmund] includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be used or that life would or might be taken .”189 The Court dismissed this interpretation, “conclud[ing] that a defendant who anticipated violence, without major participation and reckless indifference, did not demonstrate the level of culpability the Eighth Amendment requires.”190

Based on the Court of Criminal Appeals’ conclusion in Ladd, the antiparties charge allows for a defendant to potentially be put to death for the anticipation of death.191 Although an accomplice’s anticipation of death is a highly culpable mental state, is it enough to put someone on death row? In the end, at least in Texas, the jury will decide.192 What, then, can we do to ensure the jury has the best chance to administer justice, rather than sentence an accomplice, who may have anticipated harm or severe injury to a civilian, to death who participated minimally?

2. The Role of Jurors in Deciding Punishment

The jury decides the defendant’s fate during the punishment phase of trial.193 But in Texas, there is no requirement that the jury be the fact finder who decides whether the death penalty is, or is not, appropriate.194 This makes the “Texas scheme constitutionally deficient under [Ring v. Arizona].”195 Furthermore, it is alsocommon for the appropriate Enmund and Tison findings to be established at the appellate level.196 Although the jury may be the best “fact finder” when it comes to assessing one’s credibility in light of all of the evidence at trial, it seems that an appellate review after the fact may not be a bad idea, as long as it ensures that Enmund and Tison are satisfied.

In Ring v. Arizona, thejuryfound the defendant guiltyof felonymurder, even though the evidence at trial was insufficient to establish whether he actually killed the victim or materially participated in the robbery that led to

189. Tison v. Arizona, 481 U.S. 137, 150 (1987) (quoting State v. Tison, 690 P.2d 755, 757 (Ariz. 1984)).

190 Ebeid, supra note 86, at 1856 (referencing Tison, 481 U.S. at 150–51).

191. See supra notes 184–87 and accompanying text.

192 See CHARLTON supra note 183, § 10.3, at 162.

193 Id.

194. See Ebeid, supra note 86, at 1859–60.

195 Id.

196 See id. at 1860.

the death of the victim.197 But the trial judge determined that Enmund and Tison were satisfied under Arizona law, allowing the death penalty, based on aggravating factors.198 The Supreme Court struck down the sentence, concluding that “[c]apital defendants, no less than noncapital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.”199 When prosecuting parties to a crime, there are numerous complications to overcome. Although some ofthesecomplications maybe “swept under the rug” by getting a co-defendant to implicate the other, it is imperative that the conviction of the implicated co-defendant be as sound as possible. To ensure the fairness of accomplice convictions especially in capital murder cases Texas should require Tison and Enmund jury findings at trial to alleviate any potential constitutional deficiencies in statutes.200 Specifically, the jury must “find that the defendant either killed or intended to kill, as required by Enmund,orthatthedefendant wasamajorparticipantandactedwithreckless indifference to life, as required by Tison. ”201 To require such a finding would provide a check on the death penalty for convicted defendants.

VII. CONCLUSION

The material presented in this Article should not be construed as an argument for or against the death penalty. This punishment is reserved for the most heinous ofcrimes in various states includingTexas.202 Instead,the focus of this Article is to shed light on the complications involved in the prosecution of a party to a crime203 namely, felony murder and how we can ensure accurate convictions and subsequent punishments of parties to a crime.204 When someone’s life the life of a co-defendant is on the line, are safeguards such as the accomplice-witness rule sufficient to ensure the fairness of an accomplice’s conviction and punishment?205

197 See Ring v. Arizona, 536 U.S. 584, 591–92 (2002).

198. Id. at 592–95.

199 Id. at 589.

200 See Ebeid, supra note 86, at 1865.

201. Id. at 1860.

202 See States with and Without the Death Penalty, DEATH PENALTY INFO CTR (Nov. 9, 2016), https://deathpenaltyinfo.org/states-and-without-death-penalty [https://perma.cc/4MBSC48V].

203 See supra Section VI.A.

204 See supra Section VI.B.

205. See Jolie McCullough, In Rare Move, Texas Parole Board Recommends Clemency for Death Row Inmate Thomas Whittaker, TEXAS TRIBUNE (Feb. 20, 2018), https://www.texastribune.org/2018/02/20/rare-move-texas-parole-board-recommends-clemencydeath-row-inmate-thom/ [https://perma.cc/DBQ3-2K4H] (affording Thomas Whittaker, a man who conspired to have his family killed, clemency by unanimous vote of the Texas Board of Pardons and Paroles). Assuming that Whittaker was afforded these safeguards, how is it that conspiracy

My solution to these complications is to require a jury to decide whether the Enmund and Tison rules are met or have mandated lesser-included offense jury instructions. A jury is in the best position to assess the overall credibility of the evidence presented at trial. This is not to say that a de novo review by an appellate court or assessment of punishment by a trial judge will be inappropriate, as long as their focus is to ensure that the Enmund and Tison ruleswere actuallysatisfied.Mandatedlesser-includedoffenses,onthe other hand, may be a better solution, since this will give the jury or trial judge options when deciding punishment, especially when the culpability of the accomplice is in the controversial “gray area.”

These solutions will more than likely be applicable in states that employ the Category II or III statutory approaches, or states that attempt to reformulate the intent to kill requirement, reducing the required mental state of an accomplice subject to capital punishment. To impose the death penalty on a person who lacks an essential component required to hold someone criminally responsible for an act or omission of another, in some situations, is in violation of the Eighth Amendment of the Constitution. It is true that there will be a situation where someone encourages, induces, or assists in some meaningful way a physical participant another to commit a crime who is appropriately eligible for the death penalty. There is, however, an immense amount of work evidentiary complications, etc. that needs to be addressed before pursuing such an endeavor. I believe it starts with appreciating that death is truly different, especially in the context of accompliceliabilitywhereonedefendantisbeingheldcriminallyresponsible for the conduct of another who is, perhaps, a more culpable co-defendant.

Throughout this Article, questions were posed to induce thoughtprovoking “stepping-stones.” I attempted to answer these questions, while at the same time, highlight these areas as those needing further research and discussion. With that, here is one more: How can we put someone to death, let alone hold someone criminally responsible for the conduct of another, if they have not delivered the fatal blow, fired a single bullet, or serves merely as a getaway driver? Not only could we put someone to death for deciding to go to trial rather than cooperate, but we could impose the same punishment for someone merely being with the wrong crowd, in the wrong place, at the wrong time.

without “pulling the trigger” is enough to put someone to death? See id. Should it be enough? Does this “rare move” indicate a shift to a focus on the actual co-defendant who causes the death, or is this a case where a would-be victim, Whitaker’s father, pled for and saved his son’s life?