... and Justice for All

Is Justice Kavanaugh Up to the Job?

Evidence is mounting that Brett Kavanaugh is just not up to the job of Supreme Court Justice; see The Supreme Court Has a Clear Intellectual Lightweight on Slate. 

Kavanaugh has the same failings as Clarence Thomas: neither of them ever worked as a real lawyer and so their stuck with their limited experience allowing little appreciation for how their rulings play out and apply (or not) in the real world. Barrett's likely to prove the same but it's too early to tell. 

Robert L. Abell
www.RobertAbellLaw.com

Are felon in possession of a firearm prosecutions unconstitutional under Second Amendment?

There is a good argument that felon in possession of a firearm prosecutions for violating 18 U.S.C. § 922(g)(1) by the federal government are unconstitutional and violate the Second Amendment. This argument comes from the Supreme Court's monumental Second Amendment decision last year in New York State Rifle & Pistol Ass'n v. Bruen, and the "originalist" theory of the Constitution that has become the currency of the Supreme Court's Republican-appointed majority. 

Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so the questions then become what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms? 

The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:

James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state." 

A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."

Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”

So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional. 

So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals. 

This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed. 

Robert L. Abell
www.RobertAbellLaw.com 

Does the federal government have any power to regulate or limit Second Amendment rights to keep and bear arms?

Since the Supreme Court's decision last June in New York State Rifle & Pistol Ass'n v. Bruen, there has been a near-tidal wave of litigation as to Second Amendment issues. The most frequent of these are motions to dismiss indictments charging violation of 18 U.S.C. § 922(g)(1), which makes it a crime for someone previously convicted of a felony (or its equivalent) from possessing a firearm. So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals. 

Judge David Porter of the Third Circuit in a concurring opinion in Range raised the issue of whether the federal government had any power or authority to regulate or limit Second Amendment rights to keep and bear arms. The Supreme Court hasn't considered this question. There is a strong argument that the Second Amendment allows the federal government no power or authority to limit or regulate the right to keep and bear arms. The argument proceeds as part and rests on the "originalist" theory of the Constitution that has become the currency of the Supreme Court's conservative, Republican-appointed majority. 

Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms? 

The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:

James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state." 

A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."

Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”

So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional. 

This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed. 

Robert L. Abell
www.RobertAbellLaw.com 

Whatever Happened to Ethics on the Supreme Court? We're Looking at You, Thomas and Alito

Anyone not supremely disappointed by reporting recently on what will be generously labeled the massive, ethical lapses of Supreme Court Justices Clarence Thomas and Samuel Alito should reconsider and a good place to get back on the right track is this guest essay, Does The Supreme Court Realize How Bad It Smells?, in the New York Times by U.S. District Judge Michael Ponsor. Here's a summary of Judge Ponsor's concerns:

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

The worst offenders by far have been Thomas and Alito, but they are not alone. Ladies and gentlemen, that's not how it's done.

Robert L. Abell
www.RobertAbellLaw.com

Sixth Circuit Judge Thapar has a book on Supreme Court Justice Clarence Thomas

Sixth Circuit Judge Amul Thapar has written a book extolling the judicial philosophy of Supreme Court Justice Clarence Thomas, as the New York Times reports: Federal Judge Defends Clarence Thomas in New Book. 

Robert L. Abell
www.RobertAbellLaw.com

A Step Toward Equal Justice Under Law; The Case for a Defender General

The Department of Justice and the Solicitor General's office represent the United States government in criminal cases in the Supreme Court. But there is no similar office that represents criminal defendants before or in the Supreme Court. Does this absence raise an impediment to equal justice under law? A good case for a Defender General's office is made by two law professors, Daniel Epps of the Washington University School of Law and William Ortman at Wayne State University, in The Atlantic: One Change That Could Make American Criminal Justice Fairer.

Robert L. Abell
www.RobertAbellLaw.com

 

Calvin Duncan; the hard way to Justice

Sometimes the law yields a good story of redemption and persistence. Calvin Duncan, who served some 23 years at Louisiana's Angola State Penitentiary and became a renowned jailhouse lawyer is profiled in the New York Times: A Relentless Jailhouse Lawyer Propels A Case to the Supreme Court. 

Remember, every now and then although not as often as one might reasonably hopes true justice occurs however unlikely.

Robert L. Abell
www.RobertAbellLaw.com

Form Over Substance; the Sixth Circuit Dives Over the Edge

Form too often is elevated way above substance and the Sixth Circuit's decision in United States v. Mitchell is a disturbing illustration of the point, as well as more wasted and empty motion that could be thought reasonable.

The defendant, Stephen Mitchell, had three prior felony convictions when he was convicted of violating 18 U.S.C. § 922(g)(felon in possession of a firearm). The district court found that he fell under the Armed Career Criminal Act (ACCA) and sentenced him to 250 months (20 years, 10 months). This was in about 2000. 

In the intervening 18 years or so since Mitchell was sentenced initially, the Supreme Court has invalidated portions of the ACCA. See Welch v. United States, 136 SCt 1257 (2016); Johnson v. United States, 135 SCT 2551 (2015). These decisions benefited Mitchell, because they precluded application of the ACCA to him. This meant that the longest sentence that Mitchell could receive lawfully was the 10 year maximum that goes with a violated of § 922(g). Problem was, though, Mitchell had already served in prison about 7-8 years more than the law allows. 

The district court imposed a sentence of time served and three years supervised release. This would seem enough to end it; Mitchell had already served many more years than could be imposed lawfully.

Nevertheless, both the government and Mitchell appealed.

The government's appeal went nowhere, but the Sixth Circuit ruled that the district court erred in imposing a sentence of "time served." The explanation: a time-served sentence "is inappropriate relief when the habeas petitioner has served a sentence greater than the statutory maximum." Accordingly, the case was remanded for resentencing.

One wonders why? The district court can't impose a sentence of 10 years, the statutory maximum, or even less, because Mitchell has already served many more than 10 years. It would seem to bring the judicial system into disrepute to engage in such fiction. What other alternatives are there, and, whatever they may be, what is accomplished by trundling through them. This is form over substance and wasted motion near its highest degree.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

 

Does the Fourth Amendment Permit a Warrantless Search of a Vehicle Parked in the Driveway?

"No" the Supreme Court has answered in Collins v. Virginia. The case arises from an intersection of two prongs to the Fourth Amendment: (1) the protection offered a home and its immediate surroundings (called "curtilage") and, (2) the automobile (better called the motor vehicle) exception to the warrant requirement. 

Here's what happened. Police became suspicious that Ryan Collins had and was operating a stolen motorcycle. They set up surveillance of Collins'residence and saw parked there at the top of the driveway a motorcycle covered by a tarp. A police officer walked up the driveway, lifted up the tarp, recorded the license plate and VIN numbers, which were then used to confirm that the motorcycle was stolen. Collins was later arrested at the house, while standing in its front door, and charged with receiving stolen property.

Collins argued that the Fourth Amendment prohibited police from walking up the driveway of his residence and examining the motorcycle. The state, having nothing better to rely upon, argued that the vehicle exception to the Fourth Amendment applied and allowed the warrantless search.

The Court held that the vehicle "exception [to the Fourth Amendment] does not permit an officer without a warrant to enter a home or its curtilage in order to search the vehicle therein."

This seems an easy case and, indeed, the ruling commanded an 8-1 majority. Unsurprisingly, Justice Alito dissented and colorfully lambasted the majority:

An ordinary person of common sense would react to the Court's decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, "the law is a ass – a idiot." C. Dickens, Oliver Twist 277 (1867).

That is harsh and misdirected criticism since all the Court was doing was applying the very core of the Fourth Amendment's purpose:

• When it comes to the Fourth Amendment, the home is first among equals. Florida v. Jardines, 569 U.S. 1, 6 (2013).
  
  
• At the Amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Silverman v. United States, 365 U.S. 505, 511 (1961).
  
  
• To give full practical effect to that right, the court considers curtilage – "the area 'immediately surrounding and associated with the home -- to be part of the home itself for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170, 180 (1984).
  
  
• The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened. California v. Ciraolo, 476 U.S. 207, 212-13 (1986).

Justice Alito will likely go his entire tenure on the Supreme Court without ever voting for a criminal defendant; for some umpires with some batters it is a strike every time. According to him, government agents should be able to walk right onto your property and rummage around in your belongings. Wake up, Sam!

Robert L. Abell
www.RobertAbellLaw.com

 

Does the Fourth Amendment Apply When a Rental Car is Stopped and the Driver Is Not an Authorized Driver?

Does the Fourth Amendment apply when a rental car is stopped and the driver is not an authorized driver? As a general rule, yes, the Supreme Court ruled recently in Byrd v. United States.

Terrence Byrd and his girlfriend, Latasha Reed, drove to Budget car rental center. Reed went in and rented a Ford Fusion, while Byrd stayed in his car. Reed signed the rental contract stating that she would be the only driver, and it included notice that the agreement would be violated if an unauthorized driver drove the vehicle. Nevertheless, Byrd drove off in the Fusion and Reed left driving Byrd's car, a Honda.

Byrd headed toward Pittsburgh. He provoked suspicion, according to the Court, "because he was driving with his hands at the '10 and 2' position on the steering wheel, sitting far back from the steering wheel, and driving a rental car." The opinion does not identify Byrd's race, but that explanation strongly suggests that Byrd provoked suspicion for driving while black. In any event, Byrd was stopped "for a possible traffic infraction." The police officer described him as "visibly nervous." After inspecting the rental agreement and finding that Byrd was not an authorized driver, the law enforcement officers decided that Byrd had no Fourth Amendment protections, search the car and recovered drugs.

The Court ruled in Byrd's favor holding that, "as a general rule, someone an otherwise lawful possession and control of a rental car is a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver."

The Court didn't give Byrd a complete victory, however. The case was sent back to the lower courts to address the question of whether one who intentionally uses a third-party to procure a rental car by fraudulent scheme for the purpose of committing a crime may have Fourth Amendment protections. In other words, did Byrd use Reed to get a rental car for the purpose of using the rental car to deliver drugs to Pittsburgh?

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Did Justice Alito Bring Fake News to the Supreme Court?

Sometimes (they say) a judge faced with a record compelling a result that he does not agree with or wish will reach for a liferaft, a way out.  Dana Milbank sugggests in the Washington Post, Fake News Comes to the Supreme Court, that Justice Alito may have resorted to "fake news" in the political gerrymandering case argued earlier this week. 

And so it goes.

My prediction on the case: the Supreme Court announces a very cumbersome, opaque rule to the effect that gerrymandering can rise to a constitutional violation that is so opaque that it is never violated.

Robert L. Abell
www.RobertAbellLaw.com

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