Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Constitutional Law (page 1 of 12)

Who Protects the People When the Court Protects the Badge?

Macey 2-4-16

Macey Albert
Juris Doctor Candidate, 2017
Valparaiso University Law

Remember the saying “you do the crime, you do the time”? But what if the sentence does not fit the crime? Judge Posner wrote the opinion for a three-judge panel that questioned the amount of time given for a crime committed in United States v. Smith .

Terry Joe Smith, a police office in Putnam County, Indiana was convicted and charged in federal court for violating 18 U.S.C. § 242 , which deprives a person of rights under color of law. Smith deprived two people of their constitutional rights not to be subject to intentional use of unreasonable and excessive force.

In September, Officer Smith along with other officers set out to arrest Cletis Warren whom an arrest warrants was outstanding. Before being arrested, Warren exited his vehicle and jumped into the bed of his truck. Several officers got him out from the bed of the truck and handed him down to officers on the ground. The officers gained control of Warren. Smith punched Warren, while he was handcuffed, in the face making a sound of a tomato hitting a concrete wall. Warren’s face immediately swelled and bled extensively and was carried off in an ambulance to hospital. Smith stated to another officer “I guarantee I broke that [vulgar language] nose and he deserved it”

This was not officer Smith’s only incident of using excessive force. Several months later the officers were summoned to a domestic dispute. Smith handcuffed the man involved, Jeffery Land, and escorted him to the car. Smith raised Land in the air with Land’s body horizontal to the ground dropped him, and drove his knee into Land’s sternum causing him to defecate. He later bragged about the event that happened.

Fed. R. Evid. 701 permitted the police officers to testify at trial. Officer Smith was convicted for violating Warrens and Lands rights. The court found that the amount of force used was unjustified because neither Warren nor Land resisted arrest. Smith was only given 14 months for both situations, which was less than half the bottom of the range. The Judge recognized that Smith used his official position to commit civil rights abuse, and there were no excuses for abusing people who were in handcuffs. The judge, however, gave smith a light sentence because the judge believed if Smith could control his anger, there was little risk of re-offense.

This is a perplexing case. In similar and less offensive cases, police officers received 27 to 208 months in prison. Yet this case questions the very standards of police officers when they wrongly use their status as a police officer. The court system gives people more time for brutality against dogs. Should a person with a police badge be treated differently for brutality against human beings? Police officers are like regular people and should be treated as such when they abuse their duty to apply force to criminals.

The Seventh Circuit ruled that imposing a sentence contingent on if officer Smith could control his anger the risk of reoffending would be slight, was no reason for a light sentence. A sentence that is dramatically far, or farther below the bottom of the range is not said to unreasonable, but the further down the judge goes the more important it is that he gives cogent reasons for rejecting the thinking of the Sentencing Commission. The judged imposed the standard conditions of supervised release without stating the conditions in the hearing was also an error. The entire sentence must have been given orally. The case was remanded for full resentencing. Did the Seventh Circuit go far enough or not?

Religious “Conviction”: A Prisoner’s Struggle to Practice His Faith Behind Bars

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

For the Muslim community, Ramadan is a month-long celebration filled with peace and patience. But in 2010, Michael Thompson’s Ramadan was anything but peaceful. Thompson sued prison officials at the Waupun Correctional Institution in Wisconsin for violating his First Amendment right to freely exercise his religion, and he recently won his appeal before the Seventh Circuit.

Each day during the month of Ramadan, Muslims do not eat or drink anything between sunrise and sunset. The prison normally accommodates this practice by providing Muslim prisoners with “meal bags”. Each Ramadan meal bag contains two meals: the post-sunset dinner and the next morning’s pre-sunrise breakfast. According to the prison’s policies, a prisoner who eats in the cafeteria during Ramadan forfeits his or her right to receive meal bags for the rest of the month.

On August 11, 2010 – the first day of Ramadan – Thompson began his month-long fast and received his meal bags on time for several weeks. However, on August 21, certain events interrupted their delivery. While on his way back to his cell early that day, Thompson was handed a meal bag from a prison guard. Upon arriving at his cell, Thompson found another meal bag waiting for him. Because Thompson could not leave his cell to return the extra bag, he left one of the bags unopened for a guard to retrieve. However, one prison guard claims to have seen Thompson eating from both meal bags. After accidentally receiving two meal bags in one day, Thompson did not receive a meal bag on August 21 or 22, even though he remained on the list of eligible inmates. In effect, he began to suffer from hunger pains, fatigue, and exhaustion, and thus felt pressured to eat at the cafeteria. However, he knew that if he did, he would give up his meal bag privileges. Sometime during these two days, Thompson also missed one of his morning prayers because he felt so ill. As a result of these events, he was not able to properly observe Ramadan.

Thompson filed a lawsuit under 42 U.S.C. § 1983 against the prison officials that he felt were responsible for violating his First Amendment rights. After A magistrate judge granted the defendants’ motion for summary judgment, and Thompson appealed.

Ultimately, the Seventh Circuit vacated the previous judgment and remanded the case back to the lower court to make factual determinations, such as the reason for withholding Thompson’s meal bags and whether or not he remained on the meal bag list. The Court also held that there was enough evidence from which a reasonable jury could rule in favor of Thompson.

In its analysis, the Court considered whether the denial of meal bags placed a substantial burden on Thompson’s free exercise rights. Essentially, the Court defined a “substantial burden” as one that “put[s] a substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Using this definition, the Court held that Thompson’s free exercise rights were substantially burdened when he did not receive his meal bags because without them, he was forced to choose between foregoing adequate nutrition or violating a central pillar of his religion. In other words, forcing an inmate to choose between daily nutrition and religious practice is a substantial burden. Writing for the three-judge panel, Judge Rovner further reasoned that in addition to not receiving a meal for more than 55 hours, Thompson had no idea whether he would be put back on the Ramadan meal bag list and get regular food. This uncertainty contributed to the pressure on him to go to the cafeteria and left him so anxious that he was unable to practice Ramadan in its entirety.

How should society feel about the religious rights of inmates? From one point of view, many people believe that inmates have forfeited their rights when they are convicted of committing a crime. And some claim that allowing religious freedoms in prisons could open a can of worms where inmates use religious accommodation as an excuse for other, spurious requests. On the other hand, it can be argued that prisoners should be encouraged to practice their religious faith while incarcerated for its intrinsic value. Faith may provide them with a sense of purpose and could also help reintegrate prisoners who will eventually be released back into public communities. Certainly there are legitimate restrictions on the religious rights of prisoners, but as long as that practice does not compromise a prison’s security, inmates should be entitled to freely exercise their constitutional rights.

Moderate Requirements Results in Strict Penalties for Child Abusers. 

Witness swearing on the bible telling the truth in the court room

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

Recently, the Seventh Circuit Court of Appeals reviewed what the district court called one of the most serious crimes it has ever seen. In doing so, it looks at evidence submitted during trial, consecutive v. concurrent sentences, supervised-release conditions, and restitution. So just what exactly occurred in USA v. Bour you ask?

Bour paid a woman on several occasions to molest her daughters, who were between 4-18   months and 3-5 years during the course of abuse. Bour, himself, sexually touched the youngest child, penetrated her mouth and genitals, and filmed at least two encounters with her. Additionally, he photographed the genitals of the older daughter. Bour later plead guilty to purchasing a child for the production of child pornography under 18 U.S.C. § 2251A(b), three counts of producing child pornography under 18 U.S.C. § 2251(a), and one count of possessing child pornography under 18 U.S.C. § 2252(a)(4). Bour was sentenced to life for purchasing a child for pornography production and 85 consecutive years on the remaining counts.

Bour objects to the description of the masturbation videos based on claims of the Fifth and Fourteenth Amendment right to privacy. Under 18 U.S.C. § 3661, Congress provides that for the purpose of imposing an appropriate sentence, no limits should be placed on information concerning the background, character, and conduct of a person. The guidelines, statutory law, and the constitution only limit information on certain enumerated characteristics from being admitted. Bour’s masturbatory conduct was relevant to sentencing in that it demonstrated that he took pleasure in producing graphic films.

The court reviewed Bour’s challenge on imposing consecutive versus concurrent imprisonment terms on procedural error and substantive reasonableness grounds. Bour alleges the district judge erred in failing to explain why he imposed consecutive sentences. If the sentence for the highest statutory maximum is “less than the total punishment, the district court may run counts consecutively”; when a ruling is made above this guideline an explanation must be given. Sentencing “based on factors sufficiently particularized to the individual circumstances of the case” will not be found to be in error. As the district court considered all factors set out in Bour’s memorandum and considered mitigation, no procedural error is found. Further, a sentence is not deemed unreasonable because it is above the advisory sentencing guidelines. “While a more significant justification is needed for a major departure from the guidelines, that justification need not be extraordinary”.  Considering the horror of Bour’s crimes, the district court did not abuse its discretion in substantive reasonableness. The judge believed it was necessary to ensure Bour never left prison.

The court reviewed the challenge of supervised release for plain error. Bour challenged six conditions of supervised release that were inapplicable to him, overbroad, or vague. He failed to show that his substantive rights, the criminal proceeding’s fairness or integrity, or the proceeding’s public reputation would suffer. As Bour is serving a life sentence he will never be subject to his conditions of release, therefore his point is moot.

Finally, Bour challenged the restitution award, which was reviewed for plain error. If a victim’s losses are not apparent ten days before sentencing, the prosecutor must inform the court, and the court shall set a final-determination date no more than ninety days from sentencing. As the minor victims had no guardian at the time of sentencing, the government could not decide the needed restitution until after the minors received court-appointed guardians. However, if the district court makes it clear that restitution will be ordered, the power is retained to set restitution after the time period. The district judge made it clear 89 days after sentencing that restitution would be ordered, reserving the right to set it at a later time.

The court affirmed all challenges in this order. This case sets out a precedent that not only will affect the defendant, but the rest of society. Bour’s case proves that children are among one of the most protected classes of individuals and we aim to keep it that way.

Indiana’s Personalized License Plates: Government Speech or Individual Expression?

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Today, specialty license plates are commonly seen on cars and trucks across the country. Some display amusing or entertaining messages, while others are simply used as a unique way to identify a driver’s vehicle. Earlier this month, the Supreme Court of Indiana considered a case dealing with the intersection of state-issued specialty license plates and the freedom of speech. In his opinion, Justice Dickson held that Indiana’s personalized license plates are government speech and therefore immune from First Amendment attacks.

In Indiana, owners of registered vehicles can apply to the Bureau of Motor Vehicles (BMV) for personalized license plates (“PLPs”). Ind. Code § 9-18-15-1. PLPs display a combination of letters and/or numbers which identifies the vehicle and is “requested by the owner or lessee of the vehicle and approved by the bureau.”

Over the years, PLPs in Indiana have become quite popular. For example, between January 1, 2011 and July 19, 2013, the BMV received 71,452 applications for personalized plates.

After receiving an application for a PLP, the BMV has the authority to reject a PLP that: (1) contains a connotation offensive to good taste and decency; (2) would be misleading; or (3) is otherwise determined by the bureau to be improper for issuance. Ind. Code § 9-18-15-4(b). Similarly, the BMV can revoke a previously issued PLP if it receives a substantial number of complaints about the PLP’s message, or if the PLP contains references or expression that Indiana law prohibits. 140 IAC 2-5-4(a).

A class of Indiana citizens, all of whom had their applications reject or PLPs revoked, challenged the constitutionality of the PLP program, claiming that the BMV’s decision-making process violates the First Amendment and the Due Process Clause of the Fourteenth Amendment. The BMV argued that its PLP decision-making process was constitutional because personalized license plates are a form of government speech.

Initially, the lawsuit arose two years ago when the BMV refused to renew a license plate that said “0INK.” The American Civil Liberties Union (ACLU) of Indiana sued the BMV on behalf of Rodney Vawter, who claimed the message was an innocent attempt to make light of his work as a police officer.

In its opinion, the Indiana Supreme Court relies on several factors from Walker v. Tex. Div., Sons of Confederate Veterans, Inc. to determine if PLPs are a form of government speech. In Walker, the Supreme Court considered whether Texas’s specialty license plates were government speech. First, the Court considered whether the government has historically used the medium to speak to the public. In its analysis, the Court reasoned that license plates have long been used for government purposes, such as providing identifiers for the public and law enforcement. The Court further reasoned that license plates have historically been used as a way to communicate between states. For example, all fifty states have unique graphics and slogans on their plates which put drivers and law enforcement on notice as to where the driver is from and where the vehicle is registered.

Next, the Court looked at whether, in the public’s mind, the message is closely identified and associated with the state. Here, the Court reasoned that the PLPs technically belong to the BMV and display “Indiana” at the top of every plate, indicating that the state of Indiana owns and issues them. Therefore, the public reasonably associates PLPs with the government.

Finally, the Court examined the degree of control that the state maintains over the messages conveyed. Analyzing these factors together, the Court held that PLPs are a form of government speech. Accordingly, it found that the BMV did not violate the First Amendment right to free speech or the Due Process Clause of the Fourteenth Amendment.

Under Walker’s reasoning, personalized license plates can be seen as a form of government speech because the state is issuing them. And the state certainly has a legitimate interest in rejecting or revoking inappropriate PLPs. But how can a personalized license plate really be government speech when the individual, rather than the state, is using it as a form of self-expression? If only there was some sort of happy medium between government speech and individual expression.

Life in prison for juveniles under RICO?

Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

Should juveniles be sentenced to life in prison without the possibility of parole? In a recent case, the Seventh Circuit Court of Appeals addressed this unsettling question.

In 2005, Latin Kings gang members Martinez and Vallejo were indicted under the Racketeer Influenced and Corrupt Organization Act (RICO) for crimes they committed as juveniles, including first degree murder. After pleading guilty, both Martinez and Vallejo were sentenced to life in prison. The defendants now claim that they are entitled to new sentencing hearings under Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole for juveniles violate the Eighth Amendment.

Martinez and Vallejo were both sentenced to life in prison under 18 U.S.C. § 1963, which states that anyone who violates any RICO provision shall be imprisoned not more than 20 years, or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.

In his opinion, Judge Flaum identifies two possible interpretations of the statute. On one hand, it is possible that the statute mandates a life sentence whenever the crime carries a maximum sentence of life in prison. If so, the statute is unconstitutional under Miller. On the other, it is possible that the statute sets only a maximum sentence of life in prison in such cases, and a court could choose to give a lower sentence.

Although Judge Flaum states that most courts have interpreted the statute to impose a sentence of no more than twenty years, he reasons that because the defendants were given individualized sentencing hearings and not sentenced by statutory mandate, the district court did not violate Miller.

Given the severe nature of the defendants’ crimes, life sentences can certainly be justified even if they were minors at the time. However, the ambiguity behind the sentencing guidelines suggests that even courts have trouble interpreting them. Maybe the legislature should change the language of the statute to be less ambiguous. But perhaps it is time for a complete overhaul of the mandatory minimum sentencing guidelines.

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Surveillance Cameras At Work: Invasion of Privacy?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

A peeping Tom or just a supervisor doing his job? The Seventh Circuit Court of Appeals reviewed Gustafson v. Adkins to establish whether the defendants had a valid reason behind their actions and were protected by qualified immunity or whether they should be held accountable.

Renee Gustafson worked at Jesse Brown Veterans Affairs (“VA”) Medical Center in Chicago as a police lieutenant supervisor. During this time, the VA didn’t have a designated area for female officers to change so they often changed in an active supervisors’ office. In May 2007, Thomas instructed Adkins to install a hidden camera in the office to identify supervisors who slept on duty. Adkins informed Thomas about the illegality, but was instructed to install the camera anyway. The images were sent to Thomas’s office for viewing. The camera was discovered two years later and had caught images of Gustafson and other females changing. Gustafson filed suit against Thomas and Adkins alleging her privacy had been invaded and she had been the victim of an unconstitutional search under the 4th Amendment.

Adkins argues Gustafson’s claim of 4th Amendment violation is precluded by the Civil Service Reform Act (“CSRA”) and the Federal Employees’ Compensation Act (“FECA”). The CSRA establishes a framework for evaluating adverse personnel actions against federal employees and may preempt federal claims that fall within its scope. However, Adkins’s conduct does not fall within the scope and cannot be considered to have been done for “disciplinary or corrective action” as there is little evidence that the camera was being used for this purpose. Further, case law on the matter suggests Adkins’s conduct is “closer to a warrantless search outside the scope of the CSRA.”  “The FECA provides the exclusive remedy against the United States or an instrumentality thereof to compensate a federal employee for a work-related injury defined as injury by accident and disease proximately caused by the employment.” The FECA does not bar a federal employee’s suit against individual co-employees. Given the silence on co-employee suits and the difficulty of defining Adkins actions as accidental, therefore matters of the suit are not determinative based on the FECA.

Adkins also claims his motion on summary judgment should have been granted based on qualified immunity. “The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  In order to determine if Adkins can invoke qualified immunity the court must inquire whether the constitutional right was clearly established at the time of the alleged violation. According to case law, the essential principle is that an employer’s workplace search must be reasonable. “Reasonableness depends upon the circumstances presented in a given situation and upon balancing the public, governmental, and private interests at stake in that situation.” At the time the camera was installed, the right of employees to be free from unreasonable employer searches was already established. Therefore, Adkins did not meet the requirements of qualified immunity.

For the foregoing reasons, the court affirmed the judgment of the district court. This case is a prime example of why we must never just do as we are told, even in employment. To further demonstrate this, refer to Yale University psychology professor Stanley Milgram’s 1961 study on authoritarian obedience. When others are allowed to make decisions for us, it may not always lead to an outcome in our best interest.

Indiana’s “Selfie” Voting Law Scrutinized By Federal Judge

Indiana ballot selfie law

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Thinking about snapping a picture at the polls this year? Think again.

As of July 1, 2015, under Indiana law, it is a felony for voters to take a photograph of their ballots while at a polling place and/or distribute or share such photos on social media. Ind. Code § 3-11-8-17.5. This law has commonly been referred to as Indiana’s “ballot selfie law,” referencing the modern trend in self-photographs taken by smartphone users.

On August 27, 2015, the ACLU of Indiana filed suit against the Indiana Secretary of State, the Indiana Election Division, and the Superintendent of Indiana State Police, claiming that the law is unconstitutional because it violates the First Amendment. Shortly thereafter, the ACLU of Indiana also sought a preliminary injunction enjoining the state from enforcing the ban at election polls this year.

Still thinking about snapping a selfie while at the voting polls in November? You may be in luck after all.

A federal judge in the U.S. District Court for the Southern District of Indiana recently struck down the law banning ballot “selfies.” Judge Sarah Evans Barker ruled that the law is a content-based restriction on speech because it requires the government to examine the content of images and photos in order to determine whether a voter has violated the statute. She also stated that content-based regulations of speech require a strict scrutiny analysis, where a law will only be upheld if the government can prove it serves a compelling government interest and is narrowly tailored to achieve that interest.

As Judge Barker explained, the ballot “selfie” law does not survive strict scrutiny because it neither serves compelling state interests nor is narrowly tailored to achieve those interests. She reasoned that the state does not have a compelling interest because it has failed to demonstrate any current, ongoing, or actual problem related to the use of smartphones or digital photography during elections. She also reasoned that even if the state did have a compelling interest, the law is not narrowly tailored because it is covers far more speech than necessary to accomplish its goals.

Effective immediately, the ruling enjoins the State from enforcing the ban. This means that voters are free to post pictures of their ballots at the polls this year.

On one hand, the statute is reasonable in the sense that it aims to protect voter privacy and secrecy. On the other hand, it lacks enforceability and burdens political speech. What if absentee voters posted a picture of their ballot before sending it in the mail? How is taking a picture of your ballot at the polls different from wearing a political button or putting a political bumper sticker on your car?

Weighing the Options of Care

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By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Over 23,000 mentally disabled people were on the waiting list to receive housing and medical care from any of the eight state-operated developmental centers (SODC) in Illinois.  Another 600 were in emergency situations awaiting services. The State of Illinois could not provide essential services to those on the waitlist because it already cared for nearly 25,000 people.  In 2012, Illinois planned to close roughly a third of its SODCs to save costs. The state chose to close the Warren G. Murray Development Center, an SODC. Residents of Murray faced relocation due to the planned closure. The state tried to shift the residents of the SODCs to community-based facilities because it is cost effective.

Before the residents are moved, the state must assess their fitness. The assessment determines what kind of facility the disabled person will be placed in. Standing in the state’s way were the guardians of the Murray residents; the guardians wanted to prohibit the state from carrying out the assessment without their consent. The Illinois League of Advocates for the Developmentally Disabled represented the plaintiffs. They sued the Illinois Department of Human Services under 42 U.S.C. § 12132 of Title II of the American with Disabilities Act.  Plaintiffs alleged discrimination by a public entity.

The guardians claimed treatment of residents at community-based facilities are worse than at SODCs.  In addition, the guardians claimed the state left them with no other choice but to accept the relocation of the wards. Plaintiffs filed for a preliminary injunction against the assessment and transfer of the wards.  The case went before the district court of Northern Illinois.  The district court denied the plaintiff’s request.  Plaintiffs appealed to the Seventh Circuit Court of Appeals.

Judge Posner, Manion, and Hamilton presided over Illinois League of Advocates for the Developmentally Disabled, et al. v. Illinois Department of Human Services, et al. and affirmed the district court’s holding.  Plaintiffs failed to prove mistreatment of their wards at community-based facilities. The judges relied on factors such as emotional benefits of community-based facilities, the likelihood of residents having his or her own room, and the lack of irreparable harm on the plaintiffs in affirming the decision.

First, the judges reasoned that community-based facilities are emotionally beneficial for the residents. Being near stores, parks, restaurants, or movie theaters bring emotional benefits that allows them to feel free. Second, the chances of residents having his or her own room is better than at SODCs where less than 29 percent have their own room. Community-based facilities are less crowded than SODCs.  Finally, the judges thought that granting the preliminary injunction would impose irreparable harm on the state because of the financial distress.

SODCs are isolated medical centers cut off from society. Although the mentally disabled are severely hindered in life, it does not mean that they cannot experience the joy of being a part of the community. Academic studies show that severely disabled persons feel less isolated at community-based facilities.  Yes, parents or guardians should have the ultimate say in the care of their wards, but at times the state is in a better position to know what’s best in weighing the options of care.

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