Note

Striking the Peremptory Strike: Why There Is No Freestanding Constitutional Entitlement to Peremptory Challenges

The peremptory challenge—used by parties to remove prospective jurors without the need to provide a reason—has become one of the most controversial features of the modern American jury system. Despite Batson v. Kentucky’s promise to prohibit parties from using peremptory challenges to exclude jurors from serving because of their race, lawyers have learned to adjust their explanations so as to avoid violating the commands of Batson. States have begun to reform their systems of challenging jurors peremptorily in response. While some states have fashioned a list of presumptively invalid race-neutral justifications for exercising peremptory challenges, one state—Arizona—went the furthest by abolishing peremptory challenges altogether. This prompted Professor Richard Jolly to write an article arguing that the complete abolition of the peremptory challenge is unconstitutional. From his review of common law history, early American practice, and the text of the Sixth Amendment, Jolly concludes that peremptory challenges are implicit in the Sixth Amendment’s guarantee of an “impartial jury.” This Note is a direct response to Jolly’s article. It examines over a century of court precedent as well as common law history, early American practice, and the text of the Sixth Amendment to determine if there is a freestanding constitutional entitlement to peremptory challenges. The analysis in this Note reaches the opposite conclusion: the peremptory challenge is unequivocally not required by the Constitution and, as such, Arizona and any other state that decides to abolish the peremptory challenge would not violate the Sixth Amendment.

Introduction

Once hailed by William Blackstone as “a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous,”1 1.4 William Blackstone, Commentaries *353.Show More peremptory challenges have been deemed by modern critics as “the most undemocratic feature of our democratic trial system,”2 2.Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 156 (1989).Show More the “[l]ast [b]est [t]ool of Jim Crow,”3 3.Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809, 827 (1997).Show More and “an instrument that undermines society’s evolving attempts to ensure that juries fairly represent the judgment of the community.”4 4.Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 Temp. L. Rev. 369, 399 (1992).Show More Prospective jurors can be struck from the jury venire through two methods: challenges for cause and peremptory challenges. Challenges for cause allow for rejection of venire members “on a narrowly specified, provable and legally cognizable basis of partiality.”5 5.Swain v. Alabama, 380 U.S. 202, 220 (1965).Show More Peremptory challenges, on the other hand, are exercised “without a reason stated, without inquiry and without being subject to the court’s control.”6 6.Id.Show More An unlimited number of potential jurors can be challenged for cause, while only a limited number of potential jurors, as specified by statute, may be challenged peremptorily.7 7.See Thomas Ward Frampton, For Cause: Rethinking Racial Exclusion and the American Jury, 118 Mich. L. Rev. 785, 788 (2020).Show More And while a judge must find that a potential juror is indeed biased before approving a challenge for cause, peremptory strikes receive no such scrutiny unless subject to a Batson challenge.8 8.See id. In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause prohibits parties from using peremptory strikes to exclude jurors from serving because of their race. 476 U.S. 79 (1986).Show More In an ideal world, the process will end with a right “fundamental to the American scheme of justice”9 9.Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968)).Show More: an impartial jury.

Because peremptory challenges can be employed at the complete discretion of parties and because they do not require a judge’s approval, parties frequently use them to strike potential jurors based on stereotypes that may go beyond their ability to decide a case impartially.10 10.One study found that prosecutors in North Carolina used sixty percent of their peremptory challenges against Black jurors, who constituted only thirty-two percent of the venire, while defense attorneys used eighty-seven percent of their strikes against white jurors, who constituted sixty-eight percent of the venire. Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data From One County, 23 Law & Hum. Behav. 695, 697–99 (1999). Another study that examined strikes in 390 jury trials in Jefferson Parish, Louisiana, found that prosecutors struck Black prospective jurors at over three times the rate they struck white prospective jurors. Richard Bourke, Joe Hingston & Joel Devine, La. Crisis Assistance Ctr., Black Strikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Jefferson Parish District Attorney’s Office 4, 7 (2003).Show More While each party is required under Batson v. Kentucky to provide a race-neutral explanation for a peremptory strike if the opponent of the strike makes out a prima facie case of racial discrimination, lawyers have learned to adjust their reasons so as not to violate the commands of Batson.11 11.See Nancy S. Marder, Justice Stevens, the Peremptory Challenge, and the Jury, 74 Fordham L. Rev. 1683, 1706 (2006) (“Although Batson was an earnest attempt to root out discriminatory peremptories, Batson is so easy to circumvent that it allows a charade in the courtroom. Instead of giving race or gender as a reason for excluding jurors, lawyers can give any other reason no matter how ‘silly or superstitious.’” (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam))).Show More As one judge noted, “Surely, new prosecutors are given a manual, probably entitled, ‘Handy Race-Neutral Explanations’ or ‘20 Time-Tested Race-Neutral Explanations.’”12 12.People v. Randall, 671 N.E.2d 60, 65 (Ill. App. Ct. 1996).Show More Such race-neutral explanations can include, and have included, clothing, body language, lack of eye contact, and the way a potential juror wears their hair.13 13.See Marder, supra note 11, at 1706.Show More The ease with which parties are able to avoid Batson violations led Justice Breyer to remark that “the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before.”14 14.Miller-El v. Dretke, 545 U.S. 231, 270 (2005) (Breyer, J., concurring); see also Hoffman, supra note 3, at 829 (“From Reconstruction through the civil rights movement, the peremptory challenge was an incredibly efficient final racial filter.”); Equal Just. Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy 4 (2010) (“[T]here is perhaps no arena of public life . . . where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries.”).Show More

The problems prompted by peremptory challenges have led scholars and practitioners alike to call for reform15 15.See, e.g., Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 Am. Crim. L. Rev. 1099 (1994); Annie Sloan, “What to Do About Batson?”: Using a Court Rule to Address Implicit Bias in Jury Selection, 108 Calif. L. Rev. 233 (2020); Robert T. Prior, The Peremptory Challenge: A Lost Cause?, 44 Mercer L. Rev. 579 (1993); Joshua Revesz, Comment, Ideological Imbalance and the Peremptory Challenge, 125 Yale L.J. 2535 (2016); Jere W. Morehead, When a Peremptory Challenge Is No Longer Peremptory: Batson’s Unfortunate Failure to Eradicate Invidious Discrimination From Jury Selection, 43 DePaul L. Rev. 625 (1994); Alafair S. Burke, Prosecutors and Peremptories, 97 Iowa L. Rev. 1467 (2012); Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075 (2011).Show More or the complete elimination of peremptory challenges,16 16.E.g., Hoffman, supra note 3, at 810; Marder, supra note 11, at 1684; LaCrisha L.A. McAllister, Closing the Loophole: A Critical Analysis of the Peremptory Challenge and Why It Should Be Abolished, 48 S.U. L. Rev. 303, 304 (2021); Brent J. Gurney, Note, The Case for Abolishing Peremptory Challenges in Criminal Trials, 21 Harv. C.R.-C.L. L. Rev. 227, 230 (1986); Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L. Rev. 447, 503 (1996); Batson v. Kentucky, 476 U.S. 79, 102–03 (1986) (Marshall, J., concurring) (“The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”).Show More with some scholars even going so far as to suggest that peremptory challenges are unconstitutional.17 17.See, e.g., Broderick, supra note 4, at 399 (suggesting that peremptory challenges contravene the Equal Protection Clause, the Thirteenth Amendment, and the Sixth Amendment).Show More States have taken heed. In the span of just a few years, various states have reformed their approach to peremptory strikes to attempt to counter discrimination in the selection of juries. The reforms generally fall into two camps.

The first approach is modeled after Washington’s General Rule 37 (“GR 37”).18 18.Wash. Ct. GR 37.Show More GR 37 identifies seven facially race-neutral justifications for a peremptory strike that have been “historically . . . associated with improper discrimination in jury selection” and makes them “presumptively invalid.”19 19.Wash. Ct. GR 37(h).Show More Such “presumptively invalid” justifications include, inter alia, “having prior contact with law enforcement officers” and “having a close relationship with people who have been . . . arrested.”20 20.Wash. Ct. GR 37(h).Show More GR 37 differs from Batson in other key respects. For example, GR 37 does not impose an initial burden of production on one who challenges a peremptory strike,21 21.See Wash. Ct. GR 37(c)–(d).Show More it places restrictions on the invocation of “[c]onduct” to justify a strike,22 22.Wash. Ct. GR 37(i).Show More and it does not require that the challenger prove “purposeful discrimination.”23 23.Wash. Ct. GR 37(f).Show More Other states, including California,24 24.Cal. Civ. Proc. Code § 231.7 (West 2025).Show More New Jersey,25 25.N.J. Stat. Ann § 1:8-3A (West 2025).Show More and Connecticut,26 26.Connecticut Practice Book § 5.12 (2025).Show More have followed Washington’s lead and adopted rules similar to GR 37.

The second approach to reform has been led by Arizona. The state considered two proposals for reform: one similar to Washington’s GR 37 and one that would eliminate peremptory strikes altogether.27 27.See Thomas Ward Frampton & Brandon Charles Osowski, The End of Batson? Rulemaking, Race, and Criminal Procedure Reform, 124 Colum. L. Rev. 1, 39–41 (2024).Show More On January 1, 2022, Arizona eliminated peremptory strikes entirely,28 28.See Order Amending Rules 18.4 and 18.5 of the Rules of Criminal Procedure, and Rule 47(e) of the Rules of Civil Procedure, In re Petition to Amend Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure, No. R-21-0020 (Ariz. Aug. 30, 2021), https://www.azcourts.gov/Portals/0/20/2021%20Rules/‌R-21-0020%20Final%20Rules%20Order.pdf?ver=2021-08-31-105653-157 [https://perma.cc‌/R4XA-CKFH]; Ariz. Rev. Stat. Ann. § 18.4–.5 (2025).Show More in part because of a widespread perception that the Washington-style reform was “too woke.”29 29.See Frampton & Osowski, supra note 27, at 44 (quoting Telephone Interview by Thomas Ward Frampton & Brandon Charles Osowski with Kevin D. Heade, Chair, Cent. Ariz. Nat’l Laws. Guild (Sept. 22, 2022)).Show More Those involved in the decision also noted multiple advantages, many of which were realized by judges in Arizona during the COVID-19 pandemic when the Arizona Supreme Court sharply limited peremptory challenges by emergency administrative order.30 30.Id. at 37–38.Show More First, they stated that the abolition of peremptory strikes would significantly increase judicial efficiency.31 31.Id. at 43.Show More Voir dire can consume more time than the trial itself, often adding significant time and expense to trials and providing a significant advantage to wealthier parties.32 32.April J. Anderson, Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies as Seen in Practitioners’ Trial Manuals, 16 Stan. J. C.R. & C.L. 1, 5–6 (2020).Show More Second, they argued that it would eliminate the awkward “‘guesswork’ inherent in” judges’ determinations of lawyers’ motives for exercising strikes.33 33.See Frampton & Osowski, supra note 27, at 43 (quoting Charles W. Gurtler, Jr., Comment of the Committee on Superior Court at 3, In re Petition to Amend Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure, No. R-21-0020 (Ariz. Apr. 12, 2021), https://www.azcourts.gov/DesktopModules/ActiveForu‌ms/viewer.aspx?portalid=0&moduleid=23621&attachmentid=9457 [https://perma.cc/EP8P-3‌NEE]).Show More Third, they noted that the abolition of peremptory strikes would eliminate other forms of discrimination outside of just racial discrimination.34 34.Id. at 43–45.Show More And fourth, they believed it would dispense with the concern that the GR 37 model would create a double standard, whereby defense counsel could use discriminatory strikes against white prospective jurors.35 35.Id. at 46.Show More

In response to Arizona’s change in jury selection procedure, Professor Richard Jolly published an article in the Vanderbilt Law Review arguing that the complete abolition of the peremptory challenge is unconstitutional.36 36.Richard Lorren Jolly, The Constitutional Right to Peremptory Challenges in Jury Selection, 77 Vand. L. Rev. 1529 (2024).Show More Despite the fact that the Supreme Court has “long recognized that peremptory challenges are not of constitutional dimension,”37 37.Ross v. Oklahoma, 487 U.S. 81, 88 (1988).Show More Jolly argues that “there is overwhelming textual, historical, and traditional evidence that peremptory challenges are of federal constitutional dimension.”38 38.Jolly, supra note 36, at 1535–36.Show More From his review of such evidence, Jolly concludes that peremptory challenges are implicit in the Sixth Amendment’s guarantee of an “impartial jury.”39 39.Id. at 1537–38 (quoting U.S. Const. amend. VI).Show More He goes on to argue that the right to challenge peremptorily is “unquestionably secure” in the context of capital offenses and “likely extends” to all criminal cases in which the jury trial right attaches.40 40.Id. at 1555. While Jolly concludes that peremptory challenges are also likely secured by the Seventh Amendment in civil trials, this Note is limited to analyzing the constitutional requirements of the Sixth Amendment.Show More

Jolly’s argument has massive implications for the future of jury selection. Today, nearly one-fifth of the country lives in a jurisdiction where the Batson framework does not govern peremptory strikes,41 41.Frampton & Osowski, supra note 27, at 3.Show More and at least eleven other states are currently considering reform.42 42.See Batson Reform: State by State, Berkeley L. Death Penalty Clinic, https://www.law.be‌rkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jur‌y-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/ba‌tson-reform-state-by-state/ [https://perma.cc/5LQF-MLA6] (last visited Sept. 28, 2025) (showing that states considering reform include Colorado, Iowa, Kansas, Massachusetts, Mississippi, Missouri, Montana, New York, North Carolina, Oregon, and Utah).Show More If Jolly’s argument is correct, then Arizona and any other state that follows its lead in abolishing the peremptory challenge would be in violation of the Constitution. Given the many calls to eliminate peremptory challenges, the question of whether such challenges are required by the Constitution is one that, as Jolly correctly states, “cannot be ignored.”43 43.Jolly, supra note 36, at 1554.Show More

This Note is a direct response to Jolly’s article. Like his article, this Note examines common law history, early American practice, and the text of the Sixth Amendment to determine if there is a freestanding constitutional entitlement to peremptory challenges. It also examines over a century of case law. The analysis in this Note reaches the opposite conclusion: the peremptory challenge is unequivocally not required by the Constitution and, as such, Arizona and any other state that decides to abolish the peremptory challenge would not violate the Sixth Amendment in doing so.

To make the argument, this Note proceeds in four parts. Part I provides a history of the peremptory challenge both at common law and in early American practice. Part II presents over a century of case law demonstrating that an impartial jury protects against the existence of actual bias on the petit jury. Because peremptory challenges minimize the perception of bias as opposed to actual bias, such challenges fall outside the ambit of the Sixth Amendment’s safeguards. Despite clear precedent from the Supreme Court that the peremptory challenge is not of federal constitutional dimension, Jolly argues that the Court has never fully analyzed its common law history, early American practice, and the text of the Sixth Amendment. Part III does just that. It first argues that peremptory challenges cannot be considered essential to an impartial jury because although criminal defendants had a right to use peremptory challenges in capital cases at common law and in early American practice,44 44.See infra notes 63, 68–72 and accompanying text.Show More no such right existed in noncapital cases.45 45.See infra notes 161–66 and accompanying text.Show More While Jolly attempts to employ a textualist argument to claim that peremptory challenges are nevertheless secured in noncapital cases as well as capital cases, his argument ultimately fails for both textualist and logical reasons. Part III goes on to demonstrate that the modern conception of the relationship between peremptory challenges and the impartial jury requirement is historically incongruous with the original purpose, use, and procedure of the peremptory challenge. Lastly, Part IV briefly discusses the implications of freezing practice at the time of the ratification of the Sixth Amendment to determine what rights are included in the guarantee of an impartial jury, warning that such a jurisprudential approach may actually undermine the safeguards of the Sixth Amendment. Taken together, the case law, as well as historical, practical, and textual evidence, provides overwhelming proof that there is not a freestanding constitutional entitlement to peremptory challenges.

  1.  4 William Blackstone, Commentaries *353. ↑
  2.  Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 156 (1989). ↑
  3.  Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809, 827 (1997). ↑
  4.  Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 Temp. L. Rev. 369, 399 (1992). ↑
  5.  Swain v. Alabama, 380 U.S. 202, 220 (1965). ↑
  6.  Id. ↑
  7.  See Thomas Ward Frampton, For Cause: Rethinking Racial Exclusion and the American Jury, 118 Mich. L. Rev. 785, 788 (2020). ↑
  8.  See id. In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause prohibits parties from using peremptory strikes to exclude jurors from serving because of their race. 476 U.S. 79 (1986). ↑
  9.  Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968)). ↑
  10.  One study found that prosecutors in North Carolina used sixty percent of their peremptory challenges against Black jurors, who constituted only thirty-two percent of the venire, while defense attorneys used eighty-seven percent of their strikes against white jurors, who constituted sixty-eight percent of the venire. Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data From One County, 23 Law & Hum. Behav. 695, 697–99 (1999). Another study that examined strikes in 390 jury trials in Jefferson Parish, Louisiana, found that prosecutors struck Black prospective jurors at over three times the rate they struck white prospective jurors. Richard Bourke, Joe Hingston & Joel Devine, La. Crisis Assistance Ctr., Black Strikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Jefferson Parish District Attorney’s Office 4, 7 (2003). ↑
  11.  See Nancy S. Marder, Justice Stevens, the Peremptory Challenge, and the Jury, 74 Fordham L. Rev. 1683, 1706 (2006) (“Although Batson was an earnest attempt to root out discriminatory peremptories, Batson is so easy to circumvent that it allows a charade in the courtroom. Instead of giving race or gender as a reason for excluding jurors, lawyers can give any other reason no matter how ‘silly or superstitious.’” (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam))). ↑
  12.  People v. Randall, 671 N.E.2d 60, 65 (Ill. App. Ct. 1996). ↑
  13.  See Marder, supra note 11, at 1706. ↑
  14.  Miller-El v. Dretke, 545 U.S. 231, 270 (2005) (Breyer, J., concurring); see also Hoffman, supra note 3, at 829 (“From Reconstruction through the civil rights movement, the peremptory challenge was an incredibly efficient final racial filter.”); Equal Just. Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy 4 (2010) (“[T]here is perhaps no arena of public life . . . where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries.”). ↑
  15.  See, e.g., Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 Am. Crim. L. Rev. 1099 (1994); Annie Sloan, “What to Do About Batson?”: Using a Court Rule to Address Implicit Bias in Jury Selection, 108 Calif. L. Rev. 233 (2020); Robert T. Prior, The Peremptory Challenge: A Lost Cause?, 44 Mercer L. Rev. 579 (1993); Joshua Revesz, Comment, Ideological Imbalance and the Peremptory Challenge, 125 Yale L.J. 2535 (2016); Jere W. Morehead, When a Peremptory Challenge Is No Longer Peremptory: Batson’s Unfortunate Failure to Eradicate Invidious Discrimination From Jury Selection, 43 DePaul L. Rev. 625 (1994); Alafair S. Burke, Prosecutors and Peremptories, 97 Iowa L. Rev. 1467 (2012); Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075 (2011). ↑
  16.  E.g., Hoffman, supra note 3, at 810; Marder, supra note 11, at 1684; LaCrisha L.A. McAllister, Closing the Loophole: A Critical Analysis of the Peremptory Challenge and Why It Should Be Abolished, 48 S.U. L. Rev. 303, 304 (2021); Brent J. Gurney, Note, The Case for Abolishing Peremptory Challenges in Criminal Trials, 21 Harv. C.R.-C.L. L. Rev. 227, 230 (1986); Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L. Rev. 447, 503 (1996); Batson v. Kentucky, 476 U.S. 79, 102–03 (1986) (Marshall, J., concurring) (“The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.”). ↑
  17.  See, e.g., Broderick, supra note 4, at 399 (suggesting that peremptory challenges contravene the Equal Protection Clause, the Thirteenth Amendment, and the Sixth Amendment). ↑
  18.  Wash. Ct. GR 37. ↑
  19.  Wash. Ct. GR 37(h). ↑
  20.  Wash. Ct. GR 37(h). ↑
  21.  See Wash. Ct. GR 37(c)–(d). ↑
  22.  Wash. Ct. GR 37(i). ↑
  23.  Wash. Ct. GR 37(f). ↑
  24.  Cal. Civ. Proc. Code § 231.7 (West 2025). ↑
  25.  N.J. Stat. Ann § 1:8-3A (West 2025). ↑
  26.  Connecticut Practice Book § 5.12 (2025). ↑
  27.  See Thomas Ward Frampton & Brandon Charles Osowski, The End of Batson? Rulemaking, Race, and Criminal Procedure Reform, 124 Colum. L. Rev. 1, 39–41 (2024). ↑
  28.  See Order Amending Rules 18.4 and 18.5 of the Rules of Criminal Procedure, and Rule 47(e) of the Rules of Civil Procedure, In re Petition to Amend Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure, No. R-21-0020 (Ariz. Aug. 30, 2021), https://www.azcourts.gov/Portals/0/20/2021%20Rules/‌R-21-0020%20Final%20Rules%20Order.pdf?ver=2021-08-31-105653-157 [https://perma.cc‌/R4XA-CKFH]; Ariz. Rev. Stat. Ann. § 18.4–.5 (2025). ↑
  29.  See Frampton & Osowski, supra note 27, at 44 (quoting Telephone Interview by Thomas Ward Frampton & Brandon Charles Osowski with Kevin D. Heade, Chair, Cent. Ariz. Nat’l Laws. Guild (Sept. 22, 2022)). ↑
  30.  Id. at 37–38. ↑
  31.  Id. at 43. ↑
  32.  April J. Anderson, Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies as Seen in Practitioners’ Trial Manuals, 16 Stan. J. C.R. & C.L. 1, 5–6 (2020). ↑
  33.  See Frampton & Osowski, supra note 27, at 43 (quoting Charles W. Gurtler, Jr., Comment of the Committee on Superior Court at 3, In re Petition to Amend Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure, No. R-21-0020 (Ariz. Apr. 12, 2021), https://www.azcourts.gov/DesktopModules/ActiveForu‌ms/viewer.aspx?portalid=0&moduleid=23621&attachmentid=9457 [https://perma.cc/EP8P-3‌NEE]). ↑
  34.  Id. at 43–45. ↑
  35.  Id. at 46. ↑
  36.  Richard Lorren Jolly, The Constitutional Right to Peremptory Challenges in Jury Selection, 77 Vand. L. Rev. 1529 (2024). ↑
  37.  Ross v. Oklahoma, 487 U.S. 81, 88 (1988). ↑
  38.  Jolly, supra note 36, at 1535–36. ↑
  39.  Id. at 1537–38 (quoting U.S. Const. amend. VI). ↑
  40.  Id. at 1555. While Jolly concludes that peremptory challenges are also likely secured by the Seventh Amendment in civil trials, this Note is limited to analyzing the constitutional requirements of the Sixth Amendment. ↑
  41.  Frampton & Osowski, supra note 27, at 3. ↑
  42.  See Batson Reform: State by State, Berkeley L. Death Penalty Clinic, https://www.law.be‌rkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jur‌y-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/ba‌tson-reform-state-by-state/ [https://perma.cc/5LQF-MLA6] (last visited Sept. 28, 2025) (showing that states considering reform include Colorado, Iowa, Kansas, Massachusetts, Mississippi, Missouri, Montana, New York, North Carolina, Oregon, and Utah). ↑
  43.  Jolly, supra note 36, at 1554. ↑
  44.  See infra notes 63, 68–72 and accompanying text. ↑

  45.  See infra notes 161–66 and accompanying text. ↑

Identical, Not Fraternal Twins: RLUIPA, RFRA, and Damages

The federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and Religious Freedom Restoration Act (“RFRA”) are commonly labeled “twin” or “sister” statutes. Both reinstall a strict scrutiny regime for religious accommodations, and they use identical remedial language to do so, providing for “appropriate relief against a government.” In 2020’s Tanzin v. Tanvir, the Supreme Court interpreted RFRA’s remedial provision to allow for personal capacity damages suits against government officials. By that time, however, ten federal courts of appeals had reached the opposite conclusion regarding that same remedial text within RLUIPA. Post-Tanzin, no circuit has changed course. Instead, they hold fast to two objections grounded in RLUIPA’s Spending Clause underpinnings: (1) RLUIPA has not provided “clear notice” of potential liability, which is required for a party to be liable for damages; and (2) because government officials are non-recipients of federal funds, they cannot be held personally liable.

This Note argues that these circuits have misapplied Spending Clause jurisprudence. Background presumptions, text, context, and precedent all make clear that damages suits against individuals are on the table. And the Supreme Court has repeatedly held funding non-recipients monetarily liable for violation of Spending Clause statutes, creating a line of precedent at odds with the circuits’ divined rule. This Note also illustrates the injustice that these erroneous damages bars have worked upon the one million-plus incarcerated persons in state and local institutions whose rights under RLUIPA often lack a remedy.

Introduction

In his civil complaint filed in the U.S. District Court for the Middle District of Louisiana, Damon Landor alleged that Louisiana prison officials at the Raymond Laborde Correctional Center (“RLCC”) forcibly shaved his head upon transfer to the facility.1 1.Complaint & Jury Demand ¶ 37, Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085 (M.D. La. Sept. 29, 2022), aff’d, 82 F.4th 337 (5th Cir. 2023), cert. granted,145 S. Ct. 2814 (2025).Show More Landor, a devout Rastafarian, had been growing his dreadlocks for twenty years in compliance with the Nazarite vow not to cut one’s hair.2 2.Id.¶¶ 21–24.Show More Precedent in the U.S. Court of Appeals for the Fifth Circuit squarely forbade the officials’ conduct as a violation of Landor’s rights under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”).3 3.See Ware v. La. Dep’t of Corr., 866 F.3d 263, 274 (5th Cir. 2017) (holding that a Louisiana Department of Corrections grooming policy, which prohibited inmates from having dreadlocks, was an unjustified substantial burden on Rastafarian inmates’ faith under RLUIPA).Show More Landor, in an abundance of caution, had brought with him to RLCC a physical copy of the opinion that established Rastafarian incarcerated persons’ right to grow their hair.4 4.Complaint & Jury Demand, supra note 1, ¶ 33.Show More RLCC’s intake officer, unpersuaded by binding federal law, tossed the opinion in the garbage.5 5.Id ¶ 34.Show More The warden arrived and demanded the religious documentation provided by Landor’s sentencing judge.6 6.Id.¶¶ 34–35.Show More Landor offered to request the documents from his attorney.7 7.Id.¶ 36.Show More “Too late for that,” the warden responded, before having Landor cuffed to a chair.8 8.Id ¶ 37.Show More

Despite its egregious facts, Landor’s complaint was summarily dismissed by the district court judge.9 9.Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085, at *3 (M.D. La. Sept. 29, 2022).Show More A Fifth Circuit panel reviewing the case on appeal “emphatically condemn[ed]” Landor’s treatment.10 10.Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023).Show More Nevertheless, the panel unanimously affirmed the dismissal.11 11.Id.Show More While a prima facie violation of RLUIPA had been alleged, no remedy was available to redress the injury suffered. Injunctive and declaratory relief were off the table since Landor was no longer incarcerated.12 12.See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (concluding that an incarcerated individual’s suit for equitable relief under RLUIPA is mooted once they leave the injurious facility).Show More The Supreme Court has held that RLUIPA claims against state officials in their official capacity—which are tantamount to claims against the state itself—are barred by state sovereign immunity.13 13.See Sossamon v. Texas (Sossamon II), 563 U.S. 277, 282, 293 (2011).Show More And Fifth Circuit precedent holds that monetary damages are unavailable under RLUIPA for suits against state officials in their individual capacity.14 14.Sossamon v. Lone Star State of Texas (Sossamon I), 560 F.3d 316, 331 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon II, 563 U.S. 277. Suits against an officer in their individual or “personal” capacity are lawsuits that “can be executed only against the official’s personal assets” and not the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 166 (1985).Show More

Sympathy aside, the federal courts left Landor empty-handed. This Note rejects that result as his proper judicial fate. Particularly, it argues that damages should be available in suits against officers in their individual capacity under RLUIPA. The present answer, across all federal circuits to have addressed the question, is that they are not.15 15.See, e.g., Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007).Show More But this unanimity is deceiving. Most courts have not readdressed the question since the U.S. Supreme Court handed down its 2020 decision in Tanzin v. Tanvir, which established that individual capacity suits for damages are available under the federal Religious Freedom Restoration Act (“RFRA”).16 16.141 S. Ct. 486, 493 (2020).Show More RFRA and RLUIPA are commonly labeled “twin” or “sister” statutes.17 17.See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (“sister”); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020) (Alito, J., concurring) (“twin”).Show More Both were enacted as part of Congress’s efforts to legislatively abrogate the Supreme Court’s abandonment of the strict scrutiny standard for violations of the Free Exercise Clause in Employment Division v. Smith.18 18.See Holt v. Hobbs, 574 U.S. 352, 356–57 (2015).Show More They also share functionally identical remedial provisions, allowing for injured parties to seek “appropriate relief against a government.”19 19.42 U.S.C. §§ 2000bb-1(c), 2000cc-2(a).Show More

Despite this congruity and the common practice of using case law interpreting the text of one of these “twin” statute to elucidate the other’s meaning, the scope of RLUIPA’s remedies remains unchanged.20 20.See infra Section I.B.Show More The Fifth Circuit, one of the few courts of appeals to revisit the question of individual capacity damages suits following Tanzin, reaffirmed their unavailability under RLUIPA in Landor’s case.21 21.Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023).Show More The panel focused, as other circuits have, on the fact that RLUIPA, unlike RFRA, is Spending Clause legislation.22 22.See id. at 344 (explaining that Tanzin’s holding does not reach RLUIPA because “it addresses a different law that was enacted under a separate Congressional power”); see also Tripathy v. McKoy, 103 F.4th 106, 114 (2d Cir. 2024) (reaffirming a narrower interpretation of RFRA’s remedial scheme “for the simple reason that RFRA and RLUIPA were enacted pursuant to different constitutional provisions”).Show More As the panel explained, there are unique barriers to the imposition of liability under statutes enacted through Congress’s spending power—barriers that RLUIPA does not overcome in the context of individual officer damages suits.23 23.See Landor, 82 F.4that 341 (“Spending Clause legislation ‘operates like a contract,’ so ‘only the grant recipient—the state—may be liable for its violation.’” (quoting Sossamon I, 560 F.3d 316, 328 (5th Cir. 2009))).Show More However, six judges dissented from the denial of a rehearing en banc, finding the Spending Clause arguments unconvincing.24 24.See Landor v. La. Dep’t of Corr. & Pub. Safety, 93 F.4th 259, 265 (5th Cir. 2024) (Oldham, J., dissenting from the denial of rehearing en banc).Show More Nine other judges concurred in the denial, asserting that only the Supreme Court could resolve the intractable friction between prior precedent and Tanzin.25 25.See id. at 261 (Clement, J., concurring in the denial of rehearing en banc) (“[T]hreading the needle between Sossamon II and Tanzin is a task best reserved for the court that wrote those opinions.”).Show More As Damon Landor’s case sits pending on the Supreme Court’s docket and other circuits grapple with Tanzin’s upshot,26 26.See, e.g., Fuqua v. Raak, 120 F.4th 1346, 1360 (9th Cir. 2024) (acknowledging that Tanzin indicates that “appropriate relief” should carry the same meaning across RFRA and RLUIPA, but concluding that the court remains bound by pre-Tanzin circuit precedent).Show More the question is ripe and underexplored.

This Note proceeds in four Parts. Part I examines the establishment and demise of the strict scrutiny standard of review for claims under the First Amendment’s Free Exercise Clause. Part I also analyzes the enactment of RFRA and RLUIPA in response to Smith, the case that circumscribed the application of strict scrutiny review to free exercise claims, as well as the prevailing judicial interpretations of these statutes’ remedial schemes. Parts II and III separately address each of the two Spending Clause rationales for the unavailability of damages against individual state and local officials under RLUIPA: (1) that RLUIPA does not provide the requisite “clear notice” to individual officers of their potential liability for damages; and (2) that individual officials are not themselves recipients of federal funds and thus cannot be held personally liable for violating RLUIPA’s terms. Parts II and III challenge these conclusions. Specifically, these Parts conclude that “clear notice” has been provided and non-recipients of federal funds can be held liable for violations of the conditions of spending power legislation, so damages should be available against individual officers under RLUIPA. Finally, Part IV discusses the real-world implications of the issues addressed in this Note. For the over 1.5 million individuals currently incarcerated in federally funded state prisons and local jails, the Free Exercise Clause permits almost across-the-board denial of religious accommodations. And RLUIPA currently extends a right to religious accommodations but often no remedy.

  1.  Complaint & Jury Demand ¶ 37, Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085 (M.D. La. Sept. 29, 2022), aff’d, 82 F.4th 337 (5th Cir. 2023), cert. granted, 145 S. Ct. 2814 (2025). ↑
  2.  Id. ¶¶ 21–24. ↑
  3.  See Ware v. La. Dep’t of Corr., 866 F.3d 263, 274 (5th Cir. 2017) (holding that a Louisiana Department of Corrections grooming policy, which prohibited inmates from having dreadlocks, was an unjustified substantial burden on Rastafarian inmates’ faith under RLUIPA). ↑
  4.  Complaint & Jury Demand, supra note 1, ¶ 33. ↑
  5.  Id ¶ 34. ↑
  6.  Id. ¶¶ 34–35. ↑
  7.  Id. ¶ 36. ↑
  8.  Id ¶ 37. ↑
  9.  Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085, at *3 (M.D. La. Sept. 29, 2022). ↑
  10.  Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023). ↑
  11.  Id. ↑
  12.  See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (concluding that an incarcerated individual’s suit for equitable relief under RLUIPA is mooted once they leave the injurious facility). ↑
  13.  See Sossamon v. Texas (Sossamon II), 563 U.S. 277, 282, 293 (2011). ↑
  14.  Sossamon v. Lone Star State of Texas (Sossamon I), 560 F.3d 316, 331 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon II, 563 U.S. 277. Suits against an officer in their individual or “personal” capacity are lawsuits that “can be executed only against the official’s personal assets” and not the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 166 (1985). ↑
  15.  See, e.g., Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007). ↑
  16.  141 S. Ct. 486, 493 (2020). ↑
  17.  See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (“sister”); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020) (Alito, J., concurring) (“twin”). ↑
  18.  See Holt v. Hobbs, 574 U.S. 352, 356–57 (2015). ↑
  19.  42 U.S.C. §§ 2000bb-1(c), 2000cc-2(a). ↑
  20.  See infra Section I.B. ↑
  21.  Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023). ↑
  22.  See id. at 344 (explaining that Tanzin’s holding does not reach RLUIPA because “it addresses a different law that was enacted under a separate Congressional power”); see also Tripathy v. McKoy, 103 F.4th 106, 114 (2d Cir. 2024) (reaffirming a narrower interpretation of RFRA’s remedial scheme “for the simple reason that RFRA and RLUIPA were enacted pursuant to different constitutional provisions”). ↑
  23.  See Landor, 82 F.4th at 341 (“Spending Clause legislation ‘operates like a contract,’ so ‘only the grant recipient—the state—may be liable for its violation.’” (quoting Sossamon I, 560 F.3d 316, 328 (5th Cir. 2009))). ↑
  24.  See Landor v. La. Dep’t of Corr. & Pub. Safety, 93 F.4th 259, 265 (5th Cir. 2024) (Oldham, J., dissenting from the denial of rehearing en banc). ↑
  25.  See id. at 261 (Clement, J., concurring in the denial of rehearing en banc) (“[T]hreading the needle between Sossamon II and Tanzin is a task best reserved for the court that wrote those opinions.”). ↑

  26.  See, e.g., Fuqua v. Raak, 120 F.4th 1346, 1360 (9th Cir. 2024) (acknowledging that Tanzin indicates that “appropriate relief” should carry the same meaning across RFRA and RLUIPA, but concluding that the court remains bound by pre-Tanzin circuit precedent). ↑

The President Told Me To: The Public Authority Defense in the Trump Era

After hundreds were charged in connection with the events of January 6, 2021, several defendants argued they were only doing what President Trump told them to. More specifically, they raised the public authority defense as articulated in the U.S. Court of Appeals for the District of Columbia Circuit’s Watergate-era case United States v. Barker. The defense involves a claim that an individual was authorized to engage in otherwise unlawful activity by a government official. But the D.C. Circuit was split on whether the government official in question must have the authority to make such an authorization, or if the defendant’s belief in the official’s apparent authority would suffice. The D.C. Circuit never clarified the standard, and now that President Trump has pardoned the January 6 defendants, the court is once again unable to do so. Nevertheless, the January 6 case is a prime test to determine the proper standard, and this is the prime time to do so, given the possibility of future prosecutions of current Trump Administration associates who may want to claim reliance on President Trump’s direction.

This Note makes four contributions: First, it describes the public authority defense case law, beginning with the actual-versus-apparent authority debate in Barker and its progeny. Second, this Note argues that the actual authority standard is correct based on existing law and policy. Third, it applies the actual and apparent authority standards to the January 6 case, illustrating how only the actual authority standard provides a workable rule. This conclusion makes clear that the public authority defense must fail for the January 6 defendants, but not for the reason courts thought. Fourth, this Note elucidates additional implications for the public authority defense and for those President Trump directs to take unlawful action during his second term. Ultimately, individuals cannot rely on a president’s orders to escape criminal culpability.

Introduction

President Trump’s approach to his second administration is best captured in his own tweet: “He who saves his Country does not violate any Law.”1 1.Donald J. Trump (@realDonaldTrump), X (Feb. 15, 2025, 1:32 PM), https://x.com/realDo‌naldTrump/status/1890831570535055759 [https://perma.cc/Z9L5-VV6V].Show More Newly emboldened in his second term by broad criminal immunity,2 2.See Trump v. United States, 144 S. Ct. 2312, 2327 (2024). The president is also immune from civil liability for official actions taken while in office. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).Show More President Trump has made clear with his words that he believes he is above the law and will act accordingly. It is less clear, however, what happens to those the President instructs to undertake unlawful action at his behest.3 3.The Trump opinion only addressed the president, and it relied on the president’s unique position to hold that he is entitled to immunity. See Trump v. United States, 144 S. Ct. at 2327, 2330–31. Furthermore, absolute presidential immunity from civil suit does not extend to the president’s aides, so it is unlikely that criminal immunity would. See Harlow v. Fitzgerald, 457 U.S. 800, 808–13 (1982).Show More Perhaps these individuals have an affirmative defense: that the President told them to act unlawfully, and by virtue of his position as President of the United States, he legally authorized their otherwise criminal conduct. This defense is not merely hypothetical; it was raised by several of the individuals charged for their involvement with the January 6 attack on the U.S. Capitol. Although the January 6 rioters have all received pardons,4 4.Proclamation No. 10,887, 90 Fed. Reg. 8331 (Jan. 29, 2025).Show More revisiting their cases is a vital exercise to understand how such a defense works in anticipation of similar prosecutions that may arise from conduct engaged in during President Trump’s second term.

Throughout the various January 6 legal proceedings, several defendants pointed to President Trump’s incendiary language to argue that he ordered them to “stop the steal.”5 5.See infra notes 92–93.Show More During the presidential debate back in September 2020, in response to a question about whether he would condemn the far-right militia group the Proud Boys, President Trump told the group to “stand back and stand by.”6 6.Kathleen Ronayne & Michael Kunzelman, Trump to Far-Right Extremists: ‘Stand Back and Stand By,’ AP News (Sept. 30, 2020, 2:52 PM), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1d‌b0f [https://perma.cc/LR78-FCNV].Show More In the months leading up to January 6, he repeatedly espoused the claim that the presidential election was stolen from him.7 7.H.R. Rep. No. 117-663, at 195, 213–16 (2022).Show More On the evening before the attack, President Trump again emphasized the election had been stolen and that his supporters had to do something to stop President-elect Joe Biden from taking office.8 8.Donald J. Trump (@realDonaldTrump), X (Jan. 5, 2021, 5:05 PM), https://x.com/realDon‌aldTrump/status/1346578706437963777 [https://perma.cc/TK9L-UAP6].Show More Finally, in a speech at the rally on the National Mall on January 6, 2021, just before the attack on the Capitol began, he made the following remarks:

Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. . . . And fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules. . . . And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore. . . . So we’re going to . . . walk down Pennsylvania Avenue. . . . And we’re going to the Capitol, and we’re going to try and give . . . them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.9 9.Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP News (Jan. 13, 2021, 9:11 PM) [hereinafter Trump January 6 Speech Transcript], https://apnews.com/article/electio‌n-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump was impeached for inciting insurrection based in part on this language. H.R. Res. 24, 117th Cong., at 3 (2021). Incitement does not necessarily equate to authorization, but the fact that this language was considered incitement by Congress nonetheless helps explain the effect President Trump’s words had on his supporters.Show More

Defendants used this language to argue that President Trump legally authorized their break-in of the Capitol Building. For example, defendant and Proud Boys member William Chrestman argued the following in a motion requesting release on bail:

Trump’s incitement and enablement of this insurrectionary riot weighs heavily against the weight of the evidence prong, because the mob was given explicit permission and encouragement by the former President to do what they did. The American head of state directed a specific action; the Due Process Clause says that those who obeyed him have a viable defense against criminal liability.10 10.Detention Memorandum at 11, United States v. Chrestman, 521 F. Supp. 3d 1107 (D. Kan. 2021) (No. 21-mj-08023) [hereinafter Detention Memorandum, Chrestman].Show More

Similarly, defendant Alexander Sheppard argued the following in his response to the government’s motion in limine:

Never before in our nation’s history has a sitting United States President, alongside other prominent elected officials, invited, encouraged, and condoned the public to engage in criminal conduct. . . . [T]he federal government now opposes Mr. Sheppard’s right to present a viable defense.11 11.Defendant’s Reply to Government’s Opposition to Notice of Public Authority Defense at 3–4, United States v. Sheppard, No. 21-cr-00203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) [hereinafter Defendant’s Reply to Government’s Opposition, Sheppard].Show More

This is the public authority defense. As described by the Department of Justice, such a defense is available where a government official authorized the defendant to engage in otherwise unlawful conduct.12 12.U.S. Dep’t of Just., Crim. Res. Manual § 2055, https://www.justice.gov/archives/jm/crimi‌nal-resource-manual-2055-public-authority-defense [https://perma.cc/85ZN-SK34].Show More This defense has its origins in a Watergate-era case, United States v. Barker.13 13.546 F.2d 940 (D.C. Cir. 1976) (per curiam).Show More There, the U.S. Court of Appeals for the District of Columbia Circuit held that the trial court should have allowed the defendants to raise the defense that they broke into a psychiatrist’s office to steal information about the person who leaked the Pentagon Papers only because a White House official told them to.14 14.Id. at 943, 954 (Wilkey, J.).Show More But the judges disagreed on how the defense should work. Judge Robert Merhige wrote that the defense required that the defendant receive authorization from someone who had the actual authority to make such an authorization.15 15.Id. at 955 (Merhige, J.).Show More Judge Malcolm Wilkey wrote separately that the defendant’s belief in the official’s apparent authority would suffice.16 16.Id. at 949 (Wilkey, J.).Show More That split has never been resolved.

The U.S. District Court for the District of Columbia decided that the public authority defense was unavailable in the January 6 cases.17 17.United States v. Chrestman, 525 F. Supp. 3d 14, 29, 33 (D.D.C. 2021).Show More While that conclusion is correct, the court’s reasoning is unpersuasive. The court did not clarify the correct standard for the defense and failed to wrestle with the factual comparisons to Barker.18 18.See infra Section I.C.Show More To foreshadow, the court concluded that the public authority defense fails because President Trump never gave an affirmative authorization; however, Barker and its progeny do not impose such a strict requirement.19 19.Infra Section I.C.Show More Engaging with the public authority defense case law reveals that the defense fails for the January 6 defendants not because President Trump never authorized their conduct, but because the President does not have the power to do so.

This Note is the first to give an in-depth treatment to the public authority defense case law, apply it to the January 6 defendants, and use this application to argue for the correct standard for the defense.20 20.The literature that addresses the public authority defense largely focuses instead on the related defense of entrapment by estoppel. See generally, e.g., John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 Am. J. Crim. L. 1 (1997). But see generally Matthew Babb & Lauren Emmerich, Official Misrepresentations of the Law and Fairness, 17 Crim. L. & Phil. 83 (2023) (addressing both the entrapment by estoppel and public authority defense). A law review article from 1978 by attorney Stephen Kristovich addressed the apparent-versus-actual authority debate in Barker in its immediate wake and argued for the actual authority standard, but it did not have the benefit of analyzing the decades of case law following Barker. See generally Stephen M. Kristovich, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif. L. Rev. 809 (1978). Professor Alfredo Garcia explored the applicability of the public authority defense to a military officer turned January 6 defendant and concluded the public authority defense could not justify the January 6 conduct, but he neither established the precise contours of the defense nor explained why the elements laid out in either Barker opinion were not met. See generally Alfredo Garcia, The Public Authority Defense, January 6, 2021, and the Following Orders Defense: A Juxtaposition, in Human Flourishing: The End of Law 955 (W. Michael Reisman & Roza Pati eds., 2023). This Note pulls all the cases and doctrines together to argue for one articulation of the public authority defense using the January 6 test case to do so.Show More Part I explores the public authority defense case law, beginning with the diverging opinions in United States v. Barker that created the debate between actual and apparent authority. Part I then looks to other courts of appeals to draw out more precise contours of the defense. Part I concludes by examining how the January 6 defendants used this defense and why it was rejected.

Part II argues that the actual authority standard is the proper test for the public authority defense based on the weight of circuit-level authority, comparisons to the related doctrines of entrapment by estoppel and superior orders in military law, and public policy concerns. Part III then uses the January 6 defendants as a test case to further establish that only the actual authority standard produces a workable rule and legitimate outcome. This conclusion makes clear that the D.C. District Court had the right answer that the public authority defense should fail for the January 6 defendants, but for the wrong reason.

Part IV addresses implications of the January 6 case. First, the case draws out an additional limit on the defense beyond the actual authority standard, such that it should not work where there is a broad, public authorization. Second, the case suggests that the public authority defense is limited to specific factual circumstances and that Barker itself might be an exception rather than the rule. In conclusion, it is clear that in the event of future prosecutions of Trump Administration officials and associates, a defense that President Trump authorized their conduct is likely to fail.

  1.  Donald J. Trump (@realDonaldTrump), X (Feb. 15, 2025, 1:32 PM), https://x.com/realDo‌naldTrump/status/1890831570535055759 [https://perma.cc/Z9L5-VV6V]. ↑
  2.  See Trump v. United States, 144 S. Ct. 2312, 2327 (2024). The president is also immune from civil liability for official actions taken while in office. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). ↑
  3.  The Trump opinion only addressed the president, and it relied on the president’s unique position to hold that he is entitled to immunity. See Trump v. United States, 144 S. Ct. at 2327, 2330–31. Furthermore, absolute presidential immunity from civil suit does not extend to the president’s aides, so it is unlikely that criminal immunity would. See Harlow v. Fitzgerald, 457 U.S. 800, 808–13 (1982). ↑
  4.  Proclamation No. 10,887, 90 Fed. Reg. 8331 (Jan. 29, 2025). ↑
  5.  See infra notes 92–93. ↑
  6.  Kathleen Ronayne & Michael Kunzelman, Trump to Far-Right Extremists: ‘Stand Back and Stand By,’ AP News (Sept. 30, 2020, 2:52 PM), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1d‌b0f [https://perma.cc/LR78-FCNV]. ↑
  7.  H.R. Rep. No. 117-663, at 195, 213–16 (2022). ↑
  8.  Donald J. Trump (@realDonaldTrump), X (Jan. 5, 2021, 5:05 PM), https://x.com/realDon‌aldTrump/status/1346578706437963777 [https://perma.cc/TK9L-UAP6]. ↑
  9.  Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP News (Jan. 13, 2021, 9:11 PM) [hereinafter Trump January 6 Speech Transcript], https://apnews.com/article/electio‌n-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump was impeached for inciting insurrection based in part on this language. H.R. Res. 24, 117th Cong., at 3 (2021). Incitement does not necessarily equate to authorization, but the fact that this language was considered incitement by Congress nonetheless helps explain the effect President Trump’s words had on his supporters. ↑
  10.  Detention Memorandum at 11, United States v. Chrestman, 521 F. Supp. 3d 1107 (D. Kan. 2021) (No. 21-mj-08023) [hereinafter Detention Memorandum, Chrestman]. ↑
  11.  Defendant’s Reply to Government’s Opposition to Notice of Public Authority Defense at 3–4, United States v. Sheppard, No. 21-cr-00203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) [hereinafter Defendant’s Reply to Government’s Opposition, Sheppard]. ↑
  12.  U.S. Dep’t of Just., Crim. Res. Manual § 2055, https://www.justice.gov/archives/jm/crimi‌nal-resource-manual-2055-public-authority-defense [https://perma.cc/85ZN-SK34]. ↑
  13.  546 F.2d 940 (D.C. Cir. 1976) (per curiam). ↑
  14.  Id. at 943, 954 (Wilkey, J.). ↑
  15.  Id. at 955 (Merhige, J.). ↑
  16.  Id. at 949 (Wilkey, J.). ↑
  17.  United States v. Chrestman, 525 F. Supp. 3d 14, 29, 33 (D.D.C. 2021). ↑
  18.  See infra Section I.C. ↑
  19.  Infra Section I.C. ↑

  20.  The literature that addresses the public authority defense largely focuses instead on the related defense of entrapment by estoppel. See generally, e.g., John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 Am. J. Crim. L. 1 (1997). But see generally Matthew Babb & Lauren Emmerich, Official Misrepresentations of the Law and Fairness, 17 Crim. L. & Phil. 83 (2023) (addressing both the entrapment by estoppel and public authority defense). A law review article from 1978 by attorney Stephen Kristovich addressed the apparent-versus-actual authority debate in Barker in its immediate wake and argued for the actual authority standard, but it did not have the benefit of analyzing the decades of case law following Barker. See generally Stephen M. Kristovich, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif. L. Rev. 809 (1978). Professor Alfredo Garcia explored the applicability of the public authority defense to a military officer turned January 6 defendant and concluded the public authority defense could not justify the January 6 conduct, but he neither established the precise contours of the defense nor explained why the elements laid out in either Barker opinion were not met. See generally Alfredo Garcia, The Public Authority Defense, January 6, 2021, and the Following Orders Defense: A Juxtaposition, in Human Flourishing: The End of Law 955 (W. Michael Reisman & Roza Pati eds., 2023). This Note pulls all the cases and doctrines together to argue for one articulation of the public authority defense using the January 6 test case to do so. ↑

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