Recently in Firearms Category

Looks like criminal law and law enforcement are going to be a bigger part of this Term of the U.S. Supreme Court.  The Court's Monday orders list took up for full briefing and argument three criminal and related cases:

Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala.   The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus.  If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.

Los Angeles v. Patel, No. 13-1175:  Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can?  There are a lot of heavily regulated industries that have such requirements.  The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example.  No warrant or particularized basis of suspicion required.  How about hotels?

Henderson v. United States, No. 13-1487:  What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?

Miguel Bustillo, Ana Campoy, and Andrew Grossman report in the WSJ:

At a news conference, Sgt. Jeremy Lewis of the Police Department in Moore, near Oklahoma City, said the suspect in the stabbing spree, Alton Nolen, began attacking workers at random after he was fired from his job at the city's Vaughan Foods Inc. processing plant around 4:05 p.m. local time on Thursday.

When police arrived, two women in the plant's front office area had been attacked and Mr. Nolen, 30, lay wounded from gunshots, Sgt. Lewis said. One of the women, Colleen Hufford, 54, was decapitated. "He did kill Colleen and did sever her head," Sgt. Lewis said.

Police determined that as Mr. Nolen attacked the second victim, Traci Johnson, 43, he was confronted and shot by the chief operating officer of Vaughan Foods, Mark Vaughan, who is a reserve Oklahoma County sheriff's deputy, Sgt. Lewis said. "This off-duty deputy definitely saved Traci's life," he said, describing Mr. Vaughan as a hero. "This was not going to stop if he didn't stop it."

Since finishing up my time interning with the Criminal Justice Legal Foundation I have moved back to Boston to begin my final year at Suffolk University Law School. While back here I am a Massachusetts Supreme Judicial Court Rule 3.03 Certified Student Prosecutor. That basically means I intern for a local District Attorney's office with all the responsibilities and powers of an Assistant District Attorney but am always under the supervision of someone who makes sure I don't screw things up too bad. These opinions are my own and not that of CJLF, the Plymouth County District Attorney's Office, and most certainly not that of Suffolk University Law School.
 
I come back to a city in crisis, as the gun violence and murder rates from the summer have dwarfed, in historic proportions, the rates from the previous summer and the past several summers.

Today, the US Supreme Court decided United States v. Castleman, No. 12-1371, a case involving the interpretation of the federal statute restricting gun ownership by a person convicted of "a misdemeanor crime of domestic violence," 18 U.S.C. §922(g)(9).  The Court holds unanimously that this includes a state conviction for "having 'intentionally or knowingly cause[d] bodily injury to' the mother of his child," reversing the Sixth Circuit.  There is some disagreement on how much further the statute reaches.

What about the Second Amendment?

Finally, Castleman suggests--in a single paragraph--that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.

Now there's a public spanking for an inadequate argument, but no precedent on the Second Amendment question.

For today's oral argument session, the Court is hearing Wood v. Moss.  Aside from its interesting name (placing it in a category with the famous Plough v. Fields and Silver v. Gold) the case is about qualified immunity for Secret Service agents who were sued for thinking that demonstrators against the President just might pose a greater threat than demonstrators for him and acting accordingly.

Update:  Adam Liptak has this article in the NYT on the argument, noting that some of the justices urged the lawyer for the government to take a bolder position than the one he was taking.

The US Supreme Court has decided Rosemond v. United States, exploring yet another facet of the federal law on use of a gun in a crime, 18 U.S.C. § 924(c).  This case involves the "what did he know, and intend, and when did he know/intend it" aspect when an accomplice to a robbery uses a gun.

We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.

*                              *                           *

An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope--that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen ... to align himself with the illegal scheme in its entirety--including its use of a firearm.

In practice, proving that a participant knew in advance that another participant was armed is going to require accomplice testimony in nearly every case, with all the problems that entails.

Two weeks ago, a divided panel of the Ninth Circuit declared California's law on carrying guns in public to be unconstitutional in Peruta v. San Diego, No. 10-56971.  Judge O'Scannlain's opinion begins, "We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense."  He and Judge Callahan answer yes.  Judge Thomas dissents.

The San Diego Sheriff announced he would not seek rehearing en banc.  The California Attorney General has now moved to intervene and petitioned for rehearing en banc.

In my view, the AG is entirely correct to do this regardless of where one stands on the underlying question.  The proper operation of our system of separation of powers requires a defense of statutes when they are challenged judicially, and it is the Attorney General's duty to make that defense as long as one can reasonably be made.  It is dereliction of duty for AGs to refuse to defend statutes merely because they agree with the plaintiffs on close questions of constitutional law or, even worse, merely because they oppose the policy behind the statute.  The United States Attorney General notoriously failed to defend the anti-Miranda statute in the Dickerson case back in 1999.  That was very wrong, even though the case ultimately ended with the statute being struck down.

In this case, I have no doubt that Ms. Harris supports the policy behind the statute, so the disagreement issue is not presented.  However, I expect she will be criticized for defending it, so I wanted to state up front that her decision to make the case for the statute's constitutionality is correct, in my view.

Oh, BTW, the case is a slam dunk for rehearing en banc.

Friday, I previewed the capital cases on the list for the U.S. Supreme Court's "long conference" yesterday. None were taken up in the short orders list released today.  Denials of certiorari (i.e., the Supreme Court declining to take the case and letting the lower court judgment stand) usually come out in the long list released when the Court formally convenes for its new term, the first Monday in October.

There was one exception to the denials-later practice today.  The Court turned down the case of Florida murderer Marshall Gore.  As noted in the prior post, Gore's claim of mental incompetence has been found to be "patently a fabrication."  He is scheduled for execution today.

The other capital cases will probably be denied Monday, although one or more might be "relisted" to be considered again at a future conference.

The case of a traffic stop based on an anonymous call is described in a separate post.

The Court also took up the case of United States v. Castleman, No. 12-1371, another variation on the federal statute barring gun possession by people with certain convictions, in this case a "misdemeanor crime of domestic violence."  This appears to be a pure statutory interpretation argument, not involving the constitutional question of whether Congress has the authority to micromanage who is allowed to possess a gun.

Under the Supreme Court's post-1937 view of the Commerce Clause, Congress has the power to regulate intrastate activity if it affects interstate commerce.  That includes a farmer growing wheat for use on his own farm, the high court decided in my least favorite opinion by my favorite justice, Wickard v. Filburn (1942).  What's good for wheat is good for weed, the court said in Gonzales v. Raich (2005).

Today, the Ninth Circuit decided Montana Shooting Sports Assn. v. Holder, No. 10-36094.

The Montana Legislature passed the Montana Firearms Freedom Act ("MFFA" or "the Act"), which declares that a firearm or ammunition "manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress [sic] to regulate interstate commerce." Mont. Code Ann. § 30-20-104. It purports to authorize the manufacture and sale of firearms within the state, but imposes certain requirements for a firearm to qualify under the Act, notably that the words "Made in Montana" be "clearly stamped on a central metallic part." Id. § 30-20-106.

Will that dog hunt?  No.

...would he look like Chris Lane?

The title of this post is the title of an opinion piece in, of all things, the University of Washington student newspaper.  (The piece is two years old, but timely considering the renewal of the gun control debate).

Not too much exciting in today's orders list from the US Supreme Court.  A number of capital cases were turned down.  The cross-petitions in the Phillips case, noted here, were relisted yet again.  The court turned down Indiana's petition in an AEDPA case, Butts v. Hall, previewed at SCOTUSblog.  The court also turned down a New York Second Amendment case, Kachalsky v. Cacace, No. 12-845.  Lyle Denniston has this post at SCOTUSblog.  The USCA2 summary follows the jump.

The title of this entry is the title of an opinion piece in the Washington Post.  The piece expresses many of my reservations about gun control.  It's not that I'm a priori opposed to some kinds of gun control, nor do I think that all forms of it are inconsistent with the Second Amendment (as Heller made quite clear in dictum). It's that gun control won't solve the real problem, which is controlling unstable and/or malevolent people.

CNN reports that 14 people were injured today, two now in critical condition, in a knifing attack on a Texas college campus.

The parents of Hadiya Pendleton, murdered at the age of 15, were present as President Obama delivered his State of Union speech last night.  Would Hadiya's tragic murder have been prevented by any of the measures Mr. Obama proposed?  Probably not.

Would a ban on assault weapons have prevented this crime?  No, the killer probably used a revolver.  Would background checks have helped?  Probably not, despite what the expert interviewed in the preceding link says.  Extending background checks to gun shows or even to private sales by law-abiding individuals won't stop criminals from getting them through black-market sales or just stealing them.  (I am not against background checks.  I just don't think they will have a large effect on crime rates.)

So what does work?  Mostly measures that are opposed by the same people calling for these ineffective measures.  First, locking criminals up works.  Jason Meisner of the ChiTrib reports:

The reputed gang member accused of gunning down 15-year-old Hadiya Pendleton last month was on the street even though he had been arrested three times in connection with break-ins and trespassing while on probation for a weapons conviction in recent months, the Tribune has learned.

In two of those arrests, including one just 2 1/2 months ago, Cook County probation officials failed to notify prosecutors or the judge that Michael Ward had been arrested on the new misdemeanor charges and allegedly violated his probation.

The head of the county's probation department acknowledged Monday that his office fell short in its responsibilities and vowed to find out what went wrong.

If they hadn't "fallen short" in locking up this criminal, Hadiya would be alive.

Another measure that works is the proactive policing of the kind New York City uses over the vehement opposition of the Politically Correct.  Holman Jenkins has this column in the WSJ:

Chicago had more than 500 murders last year.  The police chief believes that gun control is a big part of the answer, and has proposed a three-year mandatory minimum sentence for those convicted of illegal possession of a gun.

This has led to renewed interest in the Windy City about mandatory minimum sentencing generally.  Some, including me, believe that the legislature has every right to decide that, for a given crime, there is a floor below which the court should not be able to go no matter what the mitigating circumstances.  This seems no more than the logical counterpart to the notion that the legislature should be able to impose a ceiling on the sentence for a given crime, because, no matter how bad the offender may be, the act made criminal simply cannot, in fairness, warrant more than X amount of jail time.  If we can accept a legislative judgment about what sentence is necessarily too harsh, given the nature of the offense  --  and almost everyone would agree we can  -- we can accept its judgment about what sentence is necessarily too lenient.

Others think that mandatory sentencing laws unwisely tie the judge's hands.  In their view, only the judge has the flesh-and-blood defendant before him, and thus he alone  --  not the legislature  --  is able to tailor the sentence to the requirements of justice.

The battle will be joined when I discuss this topic with Prof. Doug Berman of the Ohio State University on Chicago's public radio station.  The program is called "Morning Shift," and Doug and I will be on Monday at 9:15 a.m. Central Time.  The show airs on WBEZ, 91.5.