positive act

Following the Supreme Court's 1940 decision in Minersville School District v. Gobitis, the West Virginia legislature amended its statutes to require all schools in the state to conduct courses of instruction in history, civics, and the Constitutions of the United States and West Virginia for the purpose of teaching, fostering, and perpetuating the ideals, principles, and spirit of Americanism. The State Board of Education was directed to prescribe the courses of study covering these subjects for public schools. Private, parochial, and denominational schools were required to prescribe similar courses. On January 9, 1942, the West Virginia State Board of Education adopted a resolution ordering that the salute to the flag become a regular part of the program of activities in the public schools, with all teachers and pupils required to participate. The resolution specified the stiff-arm salute with the right hand raised and palm turned up while repeating the pledge: "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all." Refusal to salute was defined as an act of insubordination to be dealt with by expulsion. Readmission was denied by statute until compliance. The expelled child was treated as unlawfully absent. Parents or guardians faced prosecution with fines not exceeding $50 and jail terms not exceeding thirty days. The appellees are citizens of the United States and West Virginia who are Jehovah's Witnesses, an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which prohibits making or bowing down to any graven image or likeness. They consider the flag an image within this command, leading them to refuse to salute it on religious grounds. Children of the appellees who were pupils in the public schools were expelled for their refusal to salute the flag and take the pledge of allegiance. Their parents were prosecuted for causing delinquency. Officials threatened to send the children to reformatories maintained for criminally inclined juveniles. The appellees brought suit in the United States District Court for themselves and others similarly situated to enjoin enforcement of the laws and regulations against them. The Board of Education moved to dismiss the complaint setting forth these facts. The complaint alleged that the law and regulations denied religious freedom and freedom of speech and were invalid under the due process and equal protection clauses of the Fourteenth Amendment. The cause was submitted on the pleadings to a District Court of three judges, which restrained enforcement as to the plaintiffs and those of that class. The Board of Education brought the case to the Supreme Court by direct appeal.

Joshua DeShaney was born in 1975. In 1980, a Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy DeShaney, who then moved with the child to Winnebago County, Wisconsin. In January 1982, the Winnebago County Department of Social Services became aware that Joshua might be a victim of child abuse after he was admitted to a local hospital with multiple bruises and abrasions. The examining physician notified DSS. A caseworker interviewed Randy DeShaney and visited the home, observing suspicious injuries on Joshua's head, but concluded there was insufficient evidence of abuse to retain him in court custody and returned him to his father while recommending counseling and preschool enrollment. Over the next two years, Joshua was repeatedly treated for suspicious injuries at local hospitals, with physicians notifying DSS on multiple occasions. Caseworkers conducted regular visits, noted additional injuries, received reports from emergency room personnel and neighbors, and at one point convened a Child Protection Team that decided against retaining custody, yet consistently returned Joshua to his father's care after determining insufficient evidence existed for court intervention. In March 1984, Randy DeShaney beat Joshua so severely that the child fell into a coma and suffered permanent brain damage requiring lifelong institutionalization for profound mental retardation. Randy DeShaney was later tried and convicted of child abuse. Joshua and his mother filed suit under 42 U.S.C. § 1983 against Winnebago County, its Department of Social Services, and two social workers in the United States District Court for the Eastern District of Wisconsin, claiming a deprivation of liberty without due process. The district court granted summary judgment for the respondents. The Court of Appeals for the Seventh Circuit affirmed. The Supreme Court granted certiorari.

George Reynolds, a longtime member of the Church of Jesus Christ of Latter-Day Saints, was indicted in the District Court of the third judicial district of the Territory of Utah for bigamy after entering a second marriage to Amelia Jane Schofield while his first wife remained alive. Reynolds had obtained permission from recognized church authorities to contract the polygamous marriage. He and other male church members believed the practice was a religious duty enjoined by divine revelation to Joseph Smith. Refusal would bring damnation when circumstances permitted. The grand jury that returned the indictment consisted of fifteen persons under a territorial statute. This differed from the sixteen to twenty-three persons required by federal statute for United States circuit and district courts. During voir dire, the trial court overruled Reynolds's challenges for cause to prospective jurors including Charles Read who stated they had formed opinions about the case. The court sustained government challenges to other prospective jurors who were or had been living in polygamy. At trial the prosecution offered the transcript of testimony given by Amelia Jane Schofield at an earlier prosecution of Reynolds for the same offense under a different indictment. The government showed that subpoenas were served at Reynolds's house. An officer was told the witness was not at home. Reynolds declined to disclose her location. A later subpoena with the correct name also failed to locate her. Reynolds had been present and able to cross-examine at the prior trial but offered no explanation for her absence. Reynolds requested a jury instruction that he must be acquitted if the jury found he acted in the sincere belief that the second marriage fulfilled a religious duty. The court refused and instead instructed that religious belief could not excuse a knowing violation of the criminal law. The court further instructed the jury to consider the consequences of polygamy for innocent women and children. Reynolds was convicted and the case reached the Supreme Court of the United States on writ of error.

Justus Rosemond participated in a drug transaction arranged by Vashti Perez to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. Perez drove to a local park accompanied by Ronald Joseph and Rosemond to complete the exchange. Upon arrival, Gonzales entered the backseat of the vehicle to inspect the marijuana while Painter remained outside. Instead of paying, Gonzales punched the backseat passenger and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers exited the car and fired several shots from a semiautomatic handgun before the three individuals pursued the buyers in their vehicle. A police officer responding to a dispatcher's alert pulled over the car before the pursuers could catch Gonzales and Painter. The Government subsequently charged Rosemond with violating 18 U.S.C. §924(c) by using a gun in connection with a drug trafficking crime or, alternatively, aiding and abetting that offense under 18 U.S.C. §2. Because the identity of the shooter remained disputed, the prosecution pursued both theories at trial: that Rosemond himself fired the weapon or that he aided and abetted Joseph's use of the firearm. At trial, the District Judge instructed the jury on aiding and abetting principles. A person aids or abets if he willfully and knowingly associates himself with the crime and seeks by some act to help make it succeed. The judge further instructed that Rosemond could be convicted of aiding and abetting the §924(c) offense if he knew his cohort used a firearm in the drug trafficking crime and knowingly and actively participated in the drug trafficking crime. Rosemond had proposed an alternative instruction requiring that he intentionally took action to facilitate or encourage the use of the firearm specifically. The jury convicted Rosemond of the §924(c) violation along with other offenses, resulting in a consecutive 120-month sentence for that count. The Tenth Circuit affirmed the conviction, upholding the District Court's aiding and abetting instructions against Rosemond's challenge. The Supreme Court granted certiorari to address the requirements for aiding and abetting liability under these circumstances.