Monday, September 29, 2014

District Court embraces as-applied Second Amendment limit on federal felon-in-possession prohibtion

As long-time readers know, ever since the Supreme Court's Second Amendment Heller ruling, I have long thought federal criminal law's threat of severe sentences on any and all felons in possession of any and all firearms is constitutionally questionable. Now, thanks to this post by Eugene at The Volokh Conspiracy, I see that one federal district court has finally held that there are as-applied Second Amendment problems with the federal felon-in-possession criminal statute.

The notable Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014) (available here).  Interestingly (and perhaps not surprisingly),  Binderup is a civil rights suit brought by a relatively sympathetic individual with a minor criminal past, not a case involving a federal criminal defendant claiming the Second Amendment precludes his prosecution.  And here are excerpts from the start and end of the lengthy opinion:

As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011)....

Because plaintiff’s statutory claim fails, I reach his alternative constitutional claim asserted in Count Two. For the reasons expressed above, I conclude that plaintiff has demonstrated that, despite his prior criminal conviction which brings him within scope of § 922(g)(1)’s firearm prohibition, he poses no greater risk of future violent conduct than the average law-abiding citizen. 

Therefore, application of § 922(g)(1) to him violates the Second Amendment to the United States Constitution under the framework set for the by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). Accordingly, plaintiff is, and defendants are not, entitled to summary judgment on plaintiff’s as-applied constitutional challenge asserted in Count Two of the Complaint.

It now will be real interesting to see if the feds will appeal this ruling to the Third Circuit or instead just leave it be.

September 29, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, September 17, 2014

Woman who bought guns for killer gets (way-above-guideline) eight-year federal prison sentence

As reported in this post last month, a high-profile federal gun case in upstate New York involved federal prosecutors seeking a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense.  This new local article, headlined "Woman tied to firefighter ambush sentenced to 8 years," details that the feds today were successful in securing a way-above-guideline federal gun sentence in the case:

The woman convicted of buying guns for a man that were used to kill two firefighters on Christmas Eve 2012 was sentenced to eight years in prison on federal charges Wednesday. The sentence, imposed by U.S. District Judge David Larimer, will run concurrent with a state sentence Dawn Nguyen is now serving of 16 months to four years.

On June 6, 2010, Nguyen bought the semiautomatic rifle and shotgun that William Spengler Jr. used when he fatally shot two volunteer firefighters Dec. 24, 2012. She claimed on a federal firearms transaction form that the guns were for her, when she was purchasing them for Spengler.

"I'm sure Miss Nguyen wishes she could take back that decision she made on that June day, but life is not like that," Larimer said in federal court Wednesday morning. Assistant U.S. Attorney Jennifer Noto in court Wednesday had argued that Nguyen's actions directly led to the Christmas Eve killings. "She should have foreseen the possibility of serious harm," said Noto....

Spengler had previously served 17 years in prison for fatally beating his grandmother with a hammer in 1980.

Larimer on Wednesday said he believed Nguyen knew of Spengler's dangerousness, and that she likely knew the facts behind Spengler's killing of his grandmother. Speaking of Spengler's past crime, Larimer said, "that should raise not one but hundreds of red flags that maybe this is not the kind of person who you want to be giving guns to."

Nguyen's lawyer Matthew Parrinello maintained that Nguyen did not know the specifics of Spengler's earlier crime. "This was a quirky, weird, crazy neighbor that she knew," said Parrinello. "But he was very nice, very kind and he did things for her family."

Dawn Nguyen on Wednesday faced the court room — which was packed with police officers, West Webster, N.Y., volunteer firefighters and her relatives — and told the crowd that she was sorry for her actions.

Related prior posts:

September 17, 2014 in Federal Sentencing Guidelines, Gun policy and sentencing, Offense Characteristics | Permalink | Comments (3) | TrackBack

Monday, September 15, 2014

Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells

I am pleased to see that by LawProf Richard M. Re  now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here).  Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells.  I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.

Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:

In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note.  As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.”  The case might go to the Supreme Court on the Eighth Amendment question it raises.

Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency.  First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about.  A robust clemency tradition would bring those factors to light.  Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.

Prior related posts on Young case:

September 15, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, September 11, 2014

Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells

Because I filled an amicus brief on behalf of defendant Edward Young and participated in oral argument as well, I am much too close to the Eighth Amendment issue resolved against the defendant today in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here), to provide any objective analysis and perspective.  And rather than provide my biased analysis in this post, let me for now be content to reprint the start the Sixth Circuit panel's per curiam ruling: 

Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer.  He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.

Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice.  Our precedent compels us to reject these claims and to affirm Young’s sentence.

To its credit, the per curiam decision in Young engages somewhat with some Eighth Amendment principles I sought to stress in my amicus efforts in this case, and Judge Stranch authored an extended concurrence discussing the policy arguments against mandatory minimums. But these aspects of the Young opinion do very little to salve my seething aggravation and frustration with this ruling.

A number of judges on the Sixth Circuit have a (somewhat justified) reputation for going to great lengths to bend and extend Eighth Amendment jurisprudence to block state efforts to execute brutal murderers after a state sentencing jury imposed the death penalty.  Consequently, I was hopeful (though not optimistic) that at least one member of a Sixth Circuit panel could and would conclude the modern Eighth Amendment places some substantive and judicially enforceable limits on extreme application of extreme federal mandatory minimum prison terms.  Apparently not.  Though surely not the intent of this ruling, I think the practical message is that one needs to murder someone with ammunition rather than just possess it illegally for the Sixth Circuit to be moved by an Eighth Amendment claim. (I was hoping to save a screed about this ruling for a future post, but obviously this is already a bit too raw for me to be able to hold my blog tongue.)

I am hopeful that the defendant will be interested in seeking en banc review and/or SCOTUS review, and thus I suspect the (obviously uphill) legal fight against this extreme sentence will continue. I plan to continue helping with that fight, and I would be eager to hear from others eager to help as well.

Prior related posts:

September 11, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

Monday, August 25, 2014

Is Chicago now providing more support for the claim that more guns means less crime?

The question in the title of this post is prompted by this new Washington Times article (hat tip: C&C), which carries the headline "Chicago crime rate drops as concealed carry applications surge; City sees fewer homicides, robberies, burglaries, car thefts as Illinois residents take arms."  Here are excerpts:

Since Illinois started granting concealed carry permits this year, the number of robberies that have led to arrests in Chicago has declined 20 percent from last year, according to police department statistics. Reports of burglary and motor vehicle theft are down 20 percent and 26 percent, respectively.  In the first quarter, the city’s homicide rate was at a 56-year low.

“It isn’t any coincidence crime rates started to go down when concealed carry was permitted. Just the idea that the criminals don’t know who’s armed and who isn’t has a deterrence effect,” said Richard Pearson, executive director of the Illinois State Rifle Association.  “The police department hasn’t changed a single tactic — they haven’t announced a shift in policy or of course — and yet you have these incredible numbers.”

As of July 29 the state had 83,183 applications for concealed carry and had issued 68,549 licenses.  By the end of the year, Mr. Pearson estimates, 100,000 Illinois citizens will be packing.  When Illinois began processing requests in January, gun training and shooting classes — which are required for the application — were filling up before the rifle association was able to schedule them, Mr. Pearson said.

The Chicago Police Department has credited better police work as a reason for the lower crime rates this year. Police Superintendent Garry F. McCarthy noted the confiscation of more than 1,300 illegal guns in the first three months of the year, better police training and “intelligent policing strategies.” The Chicago Police Department didn’t respond to a request for comment from The Washington Times.

However, the impact of concealed carry can’t be dismissed.  Instead of creating more crimes, which many gun control advocates warn, increased concealed carry rates have coincided with lower rates of crime.

A July study by the Crime Prevention Research Center found that 11.1 million Americans have permits to carry concealed weapons, a 147 percent increase from 4.5 million seven years ago.  Meanwhile, homicide and other violent crime rates have dropped by 22 percent. 

“There’s a lot of academic research that’s been done on this, and if you look at the peer-reviewed studies, the bottom line is a large majority find a benefit of concealed carry on crime rates — and, at worst, there’s no cost,” said John Lott Jr., president of the Crime Prevention Research Center based in Swarthmore, Pennsylvania. “You can deter criminals with longer prison sentences and penalties, but arming people with the right to defend themselves with a gun is also a deterrence.”

I know that all the research concerning relationships between gun laws and crime are controversial, and I am certain that these recent Chicago experience will not come close to resolving these on-going debates.  Still, whatever might account for the good crime news out of Chicago, I hope everyone is inclined to celebrate the reality of greater personal liberty and less crime in the Windy City.

August 25, 2014 in Gun policy and sentencing, National and State Crime Data, Second Amendment issues | Permalink | Comments (6) | TrackBack

Thursday, June 26, 2014

Could McCullen's First Amendment scrutiny impact (and strengthen) Second Amendment claims?

I am not a First Amendment expert, and thus I cannot expertly assess all the Justices' First Amendment work today in the SCOTUS abortion buffer-zone ruling in McCullen v. Coakley (available here). But a quick review of the Chief Justice's majority opinion revealed that the Court struck down a Massachusetts regulatory law justified on public safety grounds using intermediate scrutiny because the state had "not shown that it seriously undertook to address the problem with less intrusive tools readily available to it [nor] that it considered different methods that other jurisdictions have found effective." Id. slip op. at 27.   As the title to this post suggests, I wonder if court analysis of Second Amendment challenges to federal, state and local gun regulations might be impacted by the Supreme Court's First Amendment analysis in McCullen.

As of this writing, it is not yet even clear what level of scrutiny courts should be applying to Second Amendment challenges to federal, state and local gun regulations.  But in many settings, many courts have adopted the same basic intermediate analysis that led to Massachusetts' law being found unconstitutional in McCullen.  Of particular interest, therefore, is the language quoted above, in which the Chief Justice assails Massachusetts for failing to seriously explore how to "address the [public safety] problem with less intrusive tools" and to consider "different methods that other jurisdictions have found effective."  I suspect many gun rights advocates, when pressing challenges to federal, state and local gun regulations defended on the basis of public safety, will be quick to quote this language and to assert that a jurisdiction's gun restrictions should be struck down absent evidence the state seriously explored "less intrusive" restrictions and/or considered "different [gun laws] that other jurisdictions have found effective."

June 26, 2014 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (2) | TrackBack

Monday, June 16, 2014

Notable split 5-4 SCOTUS ruling against federal defendant shows power of gun politics

When I see that the Supreme Court has split 5-4 in a (non-sentencing) criminal case, I typically expect to see certain usual suspects on each side of the divide with Justice Kennedy serving as the swing vote.  Today, in Abramski v. US, No. 12-1493 (S. Ct. June 16, 2014) (available here), Justice Kennedy is the swing vote joining with the more liberal members of the Court. But they are together upholding a federal conviction  — no doubt, I am prepared to say, because at issue is the broad application of a federal gun control statute.

Here is how Justice Kagan's opinion for the Court gets started in Abramski:

Before a federally licensed firearms dealer may sell a gun, the would-be purchaser must provide certain personal information, show photo identification, and pass a background check. To ensure the accuracy of those submissions, a federal statute imposes criminal penalties on any person who, in connection with a firearm’s acquisition, makes false statements about “any fact material to the lawfulness of the sale.” 18 U.S.C. § 922(a)(6). In this case, we consider how that law applies to a so-called straw purchaser — namely, a person who buys a gun on someone else’s behalf while falsely claiming that it is for himself.  We hold that such a misrepresentation is punishable under the statute, whether or not the true buyer could have purchased the gun without the straw.

Justice Scalia's dissent, which garnered the votes of the Chief, Justice Thomas and even (the usually-consistent friend of federal prosecutors) Justice Alito, gets started this way:

Bruce Abramski bought a gun for his uncle from a federally y licensed gun dealer, using money his uncle gave him for that purpose. Both men were legally eligible to receive and possess firearms, and Abramski transferred the gun to his uncle at a federally licensed gun dealership in compliance with state law.  When buying the gun, Abramski had to fill out Form 4473 issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). In response to a question on the form, Abramski affirmed that he was the “actual/transferee buyer” of the gun, even though the form stated that he was not the “actual transferee/buyer” if he was purchasing the gun for a third party at that person’s request and with funds provided by that person.

The Government charged Abramski with two federal crimes under the Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921–931: making a false statement “material to the lawfulness of the sale,” in violation of § 922(a)(6), and making a false statement “with respect to information required by [the Act] to be kept” by the dealer, in violation of § 924(a)(1)(A). On both counts the Government interprets this criminal statute to punish conduct that its plain language simply does not reach. I respectfully dissent from the Court’s holding to the contrary.

June 16, 2014 in Gun policy and sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, May 26, 2014

"Disarming the Dangerous: Preventing Extraordinary and Ordinary Violence"

The title of this post is the title of this new paper by Mary Fan now available via SSRN. Though posted on line a few weeks ago, this piece strikes me as distinctly and depressingly timely in the wake of the mass shooting in California a few days ago. Here is the abstract:

Recent mass shootings at Navy Yard, Newtown, Aurora and elsewhere have jolted Congress and the states into considering gun violence prevention.  More than 1,500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary school children and six adults.  Current legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces.  In the states, the most successful type of legislation involves firearms restrictions for the mentally ill.  In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity magazines.  While the national attention to firearms violence prevention is salutary, for law and policy to tackle the core of the problem it is important to address two empirical questions: Who are the dangerous individuals committing most firearms homicides and why do the law’s current screens miss them?

This article draws on data from the National Violent Death Reporting System to answer the crucial foundational questions of who poses a danger and why the dangerous slip through existing legal screens.  Presenting data on the most prevalent place of shooting, victim-shooter relationship, and the shooter’s prior history, the article shows that prevention of extraordinarily devastating firearms violence calls for attention to how the nation addresses “ordinary” violence.  By ordinary violence, this article means violence that is often viewed as mundane, such as altercations between family members, friends and intimates in the home.  Many perpetrators of firearms homicide have a history of such prior events -- yet a substantially smaller proportion of these violent episodes have been adjudicated, thereby slipping through existing screens for firearms restrictions.  Based on these findings, the article discusses how discretion in dealing with “ordinary violence” can improve detection of the dangerous regardless of whether proposed firearms restrictions survive the gauntlet for new gun laws.

May 26, 2014 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics | Permalink | Comments (1) | TrackBack

Friday, May 09, 2014

Applying strict scrutiny, Louisiana Supreme Court upholds facial constitutionality of criminalizing gun possession with illegal drug possession

Thanks to this post by Eugene Volokh, I see that the Louisiana Supreme Court issued an interesting and important unanimous decision earlier this week upholding a state gun crime statute against a facial state constitutional challenge.  Here is how this opinion in Louisiana v. Webb, No. 2013-KK-1681 (La. May 7, 2014) (available here), starts and ends:

We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.

According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional.  Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.

We disagree.  Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.....

To promote public safety by curtailing drug trafficking, the state of Louisiana has a compelling interest in enhancing the penalty for illegal drug possession when a person engages in that illegal conduct with the simultaneous while in possession of a firearm. Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana. However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person’s own unlawful actions have “qualified his right” to engage in what would otherwise be the exercise of that fundamental right. See Helms, 452 U.S. at 420 (indicating “appellee’s own misconduct [in abandoning his child] had qualified his right to travel interstate.”).

Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law constitutionally allow the state to make it a crime to possess an illegal drug with a firearm. We can now, therefore, answer this practical question: Is the act of possessing a firearm and illegal drugs so essential to the liberties citizens ought to be able to enjoy in an orderly society that a law to the contrary is unconstitutional? “We have held that the function of the court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. It is the understanding that can reasonably be ascribed to the voting population as a whole that controls.” Caddo-Shreveport Sales and Use Tax Com'n v. Office of Motor Vehicles, Dept. of Public Safety and Corrections of State, 97-2233 (La. 4/14/98), 710 So.2d 776, 780. Nothing in Article I, § 11 of the constitution informs us that the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate’s expectations of a society whose hallmark is ordered liberty.

We, therefore, affirm the ruling of the district court, finding La. R.S. 14:95(E) is not unconstitutional, and that nothing in Article I, § 11 of the constitution requires the charges against the defendant to be quashed. This case is remanded to the district court for further proceedings.

May 9, 2014 in Drug Offense Sentencing, Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, May 04, 2014

Should those who really favor gun rights protest the right to sell and own a safer gun?

The question in the title of this post is a little of my usual topics, but I need to vent a bit about this discouraging story in the Washington Post highlighting that some folks who support gun rights are against the idea of using technology to produce a safer gun.  The article is headlined "Maryland dealer, under pressure from gun-rights activists, drops plan to sell smart gun," and here are excerpts:

A Rockville gun store owner who said he would sell the nation’s first smart gun — even after a California gun store removed the weapon from its shelves to placate angry gun-rights activists — backed down late Thursday night after enduring a day of protests and death threats.

Andy Raymond, the co-owner of Engage Armament, a store known for its custom assault rifles, had said earlier this week that offering the Armatix iP1 handgun was a “really tough decision” after what happened to the Oak Tree Gun Club near Los Angeles. Oak Tree was lambasted by gun owners and National Rifle Association members who fear the new technology will be mandated and will encroach on Second Amendment rights.

Electronic chips in the gun communicate with a watch that can be bought separately. The gun cannot be fired without the watch....

[A]fter hundreds of protests on his store’s Facebook page and online forums — a repeat of what Oak Tree faced — Raymond released a long video on the Facebook page saying he had received death threats and would not sell the gun. He apologized and took responsibility for the decision. He had sold none of the smart guns and would not, he said.

Earlier, Raymond had said he’s on the “right-wing vanguard of gun rights” but is vehemently opposed to gun rights activists arguing against the idea of a smart gun — or any gun. “To me that is so fricking hypocritical,” Raymond had said. “That’s the antithesis of everything that we pro-gun, pro-Second Amendment people should be. You are not supposed to say a gun should be prohibited. Then you are being no different than the anti-gun people who say an AR-15 should be prohibited.”...

Besides reliability in the face of danger, the opponents’ most pressing fear is that sales of the iP1 will trigger a New Jersey law mandating that all handguns in the state be personalized within three years of a smart gun’s going on sale anywhere in the United States. Similar proposals have been introduced in California and Congress.

Raymond said he didn’t want the law to kick in and didn’t think he’d be responsible if it did, because Oak Tree already had the gun for sale. He said the law was not his problem or Armatix’s. “This is not Armatix screwing over the people of New Jersey,” he said. “It’s the legislature screwing over the people of New Jersey. Bushmaster didn’t screw over the people of Newtown. Adam Lanza did. It’s just disgusting to me to see pro-gun people acting like anti-gunners. What is free if it’s not choice?”...

The demand for smart guns is subject to debate. Gun rights advocates, including the National Shooting Sports Foundation, say there seems to be little desire for such weapons at the moment. They point to a survey the group commissioned last year showing that 14 percent of Americans would consider buying a smart gun. “We think the market should decide,” Lawrence G. Keane, general counsel for the National Shooting Sports Foundation, told The Post this year.

Gun-control advocates believe that smart guns could reduce gun violence, suicides and accidental shootings. A dream of researchers and politicians for decades, the idea found renewed interest within the federal government following the massacre at Sandy Hook Elementary School in Newtown, Conn., in 2012. A group of Silicon Valley investors led by Ron Conway recently launched a $1 million contest to encourage smart-gun technology.

Numerous approaches are in development. Armatix uses RFID chips like those in anti-theft tags attached to clothing in stores. Other companies use a ring to enable the gun’s operation. Grips that recognize an owner are being tested, as are sensors to detect fingerprints and voices. The iP1, developed over a period of years by Armatix, a German firm, is the first smart gun to be marketed in the United States.

Increasing gun ownership is what Raymond said he was after in planning to sell the iP1. “If this gets more people, especially those on the fence, to go out and enjoy their Second Amendment freedoms, to go sport shooting and realize how much fun it is, then I am all for it,” Raymond said before changing his mind. “This is really not a bad thing.”

Regular readers know that I am both a supporter of the Second Amendment and of smart gun technology. If developed effectively, smart guns ought be be able to increase gun rights and reduce gun violence: e.g., smart gun technology might be a way to allow a former non-violent felon, who now is prohibited by federal law from possessing any firearm, to own a gun for self-protection that can only operate from his home. And smart gun technology ought to be able to provide effective digital evidence of gun use (and misuse) to be used by police and other law enforcement officials to investigate and prevent crime.

I understand the fears that some gun rights advocates may have about possible "misuse" of smart gun technology, but these folks should realize that these kinds of concerns about the misuse of a good technology (i.e., guns) are exactly what motivates gun control advocates.  Moreover, as smart gun technology improves, I suspect it is only a matter of time before the real issue is how these guns are made and sold, not whether they are available.

A few recent and older related posts:

May 4, 2014 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, March 26, 2014

Without much to say about the Second Amendment, SCOTUS gives broad reading to federal firearm possession crime

In a unanimous ruling (with two separate concurrences), the Supreme Court this morning interpreted broadly in US v. Castleman, No. 12–1371 (S. Ct. Mar. 26, 2014) (available here) the federal crime set forth in, 18 U.S.C. § 922(g)(9), prohibiting anyone who has been convicted of a “misdemeanor crime of domestic violence” from ever possessing a gun. Here is how the main opinion in Castleman, authored by Justice Sotomayor, gets started and its final two paragraphs:

Recognizing that “[f]irearms and domestic strife are a potentially deadly combination,” United States v. Hayes, 555 U. S. 415, 427 (2009), Congress forbade the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.” 18 U. S. C. §922(g)(9).  The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. App. 27. The question before us is whether this conviction qualifies as “a misdemeanor crime of domestic violence.”  We hold that it does....

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.

Castleman’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualifies as a “misdemeanor crime of domestic violence.”  The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

Notably, there are separate concurrences by Justice Scalia (author of the landmark Heller Second Amendment ruling) and Justice Alito (author of the follow-up McDonald ruling describing gun possession as a fundamental right). But neither Justice seems even a bit concerned by a broadened interpretation of a federal statute that makes forever criminal the possession of a firearm by millions of persons who have been convicted of only a certain type of misdemeanor.

For many of the reasons set forth in the various Castleman opinions (which I need to read carefully before commenting further), I think the Justices are on solid ground with statutory interpretation in this case. But what I think makes the case truly interesting and telling is what short shrift is given to the supposedly fundamental rights protected by the Second Amendment even by all five Justices who have previous spoke grandly about these rights in Heller and McDonald.

March 26, 2014 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues | Permalink | Comments (21) | TrackBack

Wednesday, March 05, 2014

Intriguing SCOTUS mens rea ruling in Rosemond applying 924(c) gun charge

The Supreme Court handed down one criminal justice ruling this morning in Rosemond v. US, No. 12–895 (S. Ct. March 5, 2014) (available here).  Here is the intriguing composition of the Court in this 7-2 ruling:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined in all but footnotes 7 and 8.  ALITO, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined.

Here is how Justice Kagan's opinion for the Court gets started:

A federal criminal statute, § 924(c) of Title 18, prohibits “us[ing] or carr[ying]” a firearm “during and in relation to any crime of violence or drug trafficking crime.”  In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense.  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.

Here is how Justice Alito's partial dissent gets going:

I largely agree with the analysis in the first 12 pages of the opinion of the Court, but I strongly disagree with the discussion that comes after that point.  Specifically, I reject the Court’s conclusion that a conviction for aiding and abetting a violation of 18 U.S.C. § 924(c) demands proof that the alleged aider and abettor had what the Court terms “a realistic opportunity” to refrain from en­gaging in the conduct at issue. Ante, at 13. This rule represents an important and, as far as I am aware, un­precedented alteration of the law of aiding and abetting and of the law of intentionality generally.

March 5, 2014 in Gun policy and sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, January 15, 2014

SCOTUS again struggling with state-federal crime intersection in Castleman

The Supreme Court today had oral argument in a challenging federal criminal case today, and SCOTUSblog has lots of great coverage of the issues and today's argument in US v. Castleman thanks to two post today by Amy Howe. Here and links to both SCOTUSblog posts, along with the start of the two lengthy entries:

Argument preview: Court once again considers when prior state convictions result in federal penalties

Some federal laws impose or enhance penalties based on the defendant’s prior criminal convictions. For example, the Armed Career Criminal Act requires a longer sentence for a defendant who has been convicted of being a felon in possession of a firearm and has three prior convictions for “violent felonies.” Even though Congress generally defines terms like “violent felonies,” those definitions may not always match up with the elements of a crime under state or tribal law, requiring the courts to determine whether a particular state offense is a qualifying prior conviction for purposes of federal law.

That is the question before the Court this morning in the case of James Castleman, in United States v. Castleman. The federal government charged Castleman with a violation of a federal law, 18 U.S.C. § 922(g)(9), which prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. The statute defines “misdemeanor crime of domestic violence” as a misdemeanor under federal, state, or tribal law (1) by someone who (as relevant here) has a child with the victim, which (2) “has as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”

Argument report: Balancing over- and under-inclusiveness

After first tackling the constitutionality of a Massachusetts law that imposes a thirty-five-foot buffer zone around abortion clinics in that state, this morning the Justices then turned to interpreting the U.S. Code – specifically, a provision that prohibits someone who has been convicted of a “misdemeanor crime of domestic violence” from possessing a gun. At the end of the oral arguments in United States v. Castleman, there seemed to be dissatisfaction with the interpretations advanced by both sides, possibly leaving room for a compromise suggested by Justice Elena Kagan.

January 15, 2014 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Thursday, January 09, 2014

"Are there no limits on Second Amendment rights?"

The title of this post is the title of this new entry by Lyle Denniston at the "Constitution Daily" blog of the National Constitution Center.  After I reprint some excerpts, I will explain why I see more limits on Second Amendment rights than any other right in the Constitution:

In only one place in the Constitution’s Bill of Rights is there a provision that flatly bars the government from regulating one of the protected rights. That is in the First Amendment, declaring that “Congress shall make no law respecting” the rights listed in that Amendment. The “right to keep and bear arms” is not one of those rights; it is contained in the Second Amendment.

The Second Amendment’s text, of course, does say that the right it protects “shall not be infringed.” Is that the same thing as saying that government may pass “no law respecting” gun rights?...

The only place that Americans can look for a binding interpretation of what the Constitution’s words mean – other than to the people acting through the amendment process to make a new constitutional declaration – are the decisions of the U.S. Supreme Court....

Over the time since 1791, when the Bill if Rights was ratified, the Supreme Court has given its blessing to an entire governing edifice that regulates First Amendment rights: the laws of libel and defamation, limits on publishing secret military strategy, regulation of “obscene” and “indecent” expression, and limits on “hate speech.” Famously, the court has said that one has no right to shout “Fire!” in a crowded theater. Even the right to worship freely sometimes is curbed by laws that regulate conduct that has religious meaning.

In contrast to the First Amendment, there is very little constitutional history about the meaning of the Second Amendment. In fact, until just five years ago, the “right to keep and bear arms” was not generally understand as a personal right to have a gun, even for self-defense. It was only in 2008 that the Supreme Court declared that such a personal right does, indeed, exist.

That decision, in the case of District of Columbia v. Heller, is – so far – the most important decision the court has ever issued on the scope of the “right to keep and bear arms.” But in that very ruling, the Court said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.” It went on to say just as clearly that it was not barring the government from imposing “reasonable regulation” on that right.

Is a “reasonable regulation” of gun rights, then, an “infringement” on those rights? If the word “infringement” means to encroach on something, as one does when one “trespasses” on someone else’s private property, that does not support the idea that Second Amendment rights are absolutes. Government can “trespass” on private property to put out a fire, for example....

The Supreme Court, of course, could re-enter into that national debate if it felt a need to clarify just what kind of “regulation” of gun rights is allowed without being found to violate the Second Amendment. Up to now, however, the Court does not seem to sense that need. It has issued only one significant gun rights decision since the 2008 ruling, and that 2010 decision in McDonald v. Chicago expanded the personal right to a gun to exist at the state and local level, as well as at the federal level. The court did not go further to explain what it would allow in gun regulation by state and local governments.

It has been asked, every year since then, to take on a variety of new cases, to answer some of the lingering questions: does the personal right to have a gun extend beyond one’s own home, who can be forbidden to have a gun at all, when can a gun be carried in public in a concealed way, what types of guns or ammunition can be regulated or even banned, what places in a community are too sensitive or too prone to violence to allow guns in them, how can the government trace a gun that has been used in a violent incident, how freely should gun shows be allowed to operate?

However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes.

As regular readers know, I have long highlighted (and lamented) that so far the Second Amendment has been interpreted by lower courts to mean that, if an American ever does one bad thing once (a felony or certain misdemeanors), she can forever be subject to a criminal convction for exercising Second Amendment rights. I know of no other express right set forth in the Bill of Rights that a person forever forfeits based on a single prior bad act. Thus, from my perspective, the Second Amendment is subject to many more rigid limits than any other constitutional right.

January 9, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, December 27, 2013

As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?

Reagan_assassination_attempt_3The question in the title of this post is prompted by this interesting recent Politico piece headlined "Hinckley home for the holidays."  Here are the basics:

John Hinckley will almost certainly be home for the holidays, which will bring much joy to his 86-year-old mother but not to the U.S. Justice Department.  No matter whether there has been a Democrat in the White House or a Republican, the Justice Department has argued against letting Hinckley out of the mental hospital where he has been incarcerated since 1982.

His family, lawyers and a number of psychiatrists and psychologists who have treated Hinckley over the years say he has responded successfully to treatment, is no longer a danger to himself and others, and that he should be allowed more and more days outside the hospital.

Hinckley had been allowed 10 days per month to visit his mother in Williamsburg, Va.  He is not allowed to make visits in Washington because the president of the United States lives in Washington and the last time Hinckley came across a president, Hinckley shot him. Hinckley is also not allowed to visit his sister in Dallas, because the home of former President George W. Bush is a 10-minute walk away.  Even in Williamsburg, Hinckley is trailed by Secret Service agents, and he must carry a GPS-enabled phone that tracks his whereabouts.

On average, a person convicted of a violent crime in America serves about five years in prison.  Hinckley has served 31 years in St. Elizabeths Hospital, even though he was found not guilty of any crime because a jury decided he was insane at the time he shot Ronald Reagan, press secretary James Brady, D.C. police officer Thomas Delahanty and Secret Service agent Timothy McCarthy....

Last week, a federal judge extended the amount of time Hinckley can spend outside St. Elizabeths to 17 days per month.  The seriousness with which Hinckley’s request for added visiting time was treated is indicative of how seriously the government still takes his case: Over a four-month period, lawyers battled for two weeks, and the judge’s decision was an incredible 106 pages long....

The hearing did provide some droll moments.  In arguing that Hinckley was not fit to be outside of his mental hospital for a longer period of time, the government said one of his girlfriends at St. Elizabeths was “floridly psychotic.”  To which Hinckley’s lawyer replied: “Who is he going to meet at St. Elizabeths?”

Hinckley’s case contains some valuable lessons:  The insanity defense is very rarely used in America and usually fails when it is used.  Hinckley succeeded, but what has it gotten him?  More than three decades in a mental hospital may be better than more than three decades in prison, but unlike a prisoner serving a sentence with a maximum number of years, Hinckley, 58, can be locked up in the hospital until he dies.

Before Hinckley shot Reagan, he had been stalking Jimmy Carter.  In October, 1980, Hinckley was arrested at Nashville’s Metropolitan Airport for concealing three handguns and 30 rounds of ammunition in his carry-on luggage.  He paid a fine of $62.50 and was released from custody.  Four days later, Hinckley, who had undergone psychiatric treatment for depression, went to Dallas, where he bought a gun and six bullets at a pawnshop for $47.  Hinckley used this weapon to shoot Ronald Reagan, James Brady and the two law enforcement officers.

Today’s Brady law, which was enacted in 1993 and requires background checks for some gun purchases, is named for James Brady and might have prevented Hinckley from buying that gun.  In 1988, his last full year in office, Reagan endorsed the Brady Bill, even though Reagan was not a fan of gun-control laws.  His personal affection for Brady might have had something to do with it, but Reagan also said it was a good idea to see if a potential gun buyer had “a record of any crimes or mental problems, or anything of that kind.”  The National Rifle Association condemned Reagan’s statement.

St. Elizabeths, built in 1855 as the Government Hospital for the Insane, once housed 8,000 patients.  As the hospital crumbled from neglect, and as laws and attitudes about mentally ill people changed, the population dropped to its current 300 and a new hospital was built in 2010.   St. Elizabeths no longer needs all of its vast 350 acres, where feral cats still roam, some of which are cared for by Hinckley, who often visits PetSmart on his home visits right after he goes to Wendy’s.  About 176 acres of the property will be used for the new $3.4 billion headquarters complex of the Department of Homeland Security.

As most criminal law professors know, one of the legal legacies of Hinckley's case was a significant retrenchment of insanity doctrines in many states. But as Hinckley's own case may highlight, perhaps that it is ultimately a blessing and not a curse even for mentally unstable criminal defendants. And, as most gun control advocates know, Hickley's crime created a uniquely potent person and symbol in support of gun control laws. But as recent high-profile deadly shootings highlight, there is reason to perhaps fear that the US is unable or unwilling to pursue gun control laws that would be likely able to prevent mentally unstable persons from having access to firearms.

December 27, 2013 in Celebrity sentencings, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Friday, November 29, 2013

Louisiana Supreme Court at crosshairs of strong gun rights and tough drug laws

Cross-hairAs reported in this effective local article, headlined "Court considering second major gun law: La. drug-gun statute latest to face review," the top court in the Pelican State has a lot of interesting legal issues to sort out in the wake of state voters having last year approved by a gun-rights constitutional amendment backed by the National Rifle Association.  Here are the particulars:

Amid the growing confusion over whether Louisiana’s litany of gun crimes violates its residents’ turbocharged right to bear arms, the state Supreme Court has decided it will try to settle one of the most consequential questions: Does it remain constitutional to charge a person with a high-grade felony for having a gun at the same time as illegal drugs, no matter what kind of drugs or how much?

Rico Webb, a 22-year-old caught in a car with one marijuana cigar and a gun, points to a state constitutional amendment passed last year, applauded by conservatives and the National Rifle Association, that for the first time in American history declared gun ownership a fundamental right in Louisiana, subject to the same level of judicial scrutiny as free speech and voter equality.

The amendment provoked an avalanche of legal challenges to the state’s major gun-crime laws. At least three judges have declared various criminal statutes unconstitutional. The Louisiana Supreme Court is tasked with sorting out the mess.

The high court already is considering the statute that forbids certain felons from possessing firearms. It heard oral arguments last month, and its decision is pending.  In the meantime, the court agreed on Friday to take up Webb’s challenge to the law that punishes the possession of guns and drugs with five to 10 years in prison without the possibility of parole....

The constitutional amendment sailed through the Legislature last year and received overwhelming support from voters at the ballot box. Its proponents, both inside and outside the Legislature, defended the measure as a guarantee of freedom if federal gun protections were to somehow fall.

But critics described it as an unnecessary law that solved no problem.  Louisiana already had among the most liberal gun laws in the nation. All the amendment has accomplished, they say, is widespread constitutional chaos that could endanger public safety and waste hundreds of courthouse hours on the taxpayers’ dime.

The measure was pitched by conservative legislators as a state equivalent to the Second Amendment.  But in practice, it goes far past the protections offered by the U.S. Constitution.  The amendment erased language in the law that allowed the Legislature to prohibit carrying a concealed weapon and specified that, for the first time anywhere in the nation, gun laws would be subject to a “strict scrutiny” test, the highest level of judicial review.

“What the Legislature did is it took discretion away from itself,” said Raymond Diamond, a LSU law professor and Second Amendment scholar.  “This pro-gun Legislature voted to bind itself, and future Legislatures that might not be so pro-gun, from undertaking gun control. It has similarly binded local communities in ways that right now we really don’t understand.”  He has described the amendment as “a can of worms.”

It pushed the Louisiana Supreme Court to become the first in America to analyze criminal gun statutes using a strict scrutiny test.  That test presumes that every person has the right to be armed. Any law that seeks to infringe that right must pass a grueling legal test that kills more than two-third of the laws that come up against it.  The state must show that the law serves a compelling government interest, and that it is so narrowly defined that there is no less restrictive way of achieving that interest.

The arguments against the current statutes are similar, in that they equally dole out “heavy-handed penalties” to vast groups of people.  The drug statute treats people caught with small amounts of marijuana the same as those with large amounts of more serious drugs.  The felon-with-a-gun statute equates burglars with murderers. It includes a list of 150 felony offenses, characterized as drug or violence crimes, and says that anyone convicted of any of them is barred from possessing a firearm for 10 years after being released from prison.

The state supports that law by arguing that those with a demonstrated capacity to break the law are more dangerous when armed. Its position on the drugs-and-gun statute is the same: Drugs beget violence and guns make volatile situations deadly.

But Webb’s attorney, New Orleans public defender Colin Reingold, argues that the state cannot prove, under a strict-scrutiny test, that a single marijuana blunt makes him more dangerous when armed than anyone else, particularly since the possession of alcohol and guns is not equally restricted.  “The true danger of a firearm comes not from the manner in which its owner keeps or bears it, but rather from how the citizen uses the weapon,” Reingold wrote in his appeal to the Supreme Court.

Webb, who has no criminal record, was arrested on Sept. 10, 2012, when police pulled over his girlfriend for having a broken taillight.  He confessed to police that he had the blunt in his backpack and said the gun on the floorboard was his, too.  The gun was legal and the marijuana alone would have amounted to a misdemeanor, prosecuted in Municipal Court and typically punished with a fine and probation.  But combined, the gun and pot became a felony with a minimum sentence of five years and a maximum of 10 years, without the possibility of parole.

Webb appealed his charge to the Louisiana Supreme Court, which announced on Friday it would hear the case.  Over the years, the courts will have to sort out which of the 80 other gun crimes on Louisiana law books remain constitutional under the new amendment.

The state has become an experiment. “This is an exciting time because there is some risk that some of the laws will be declared unconstitutional,” Diamond said.  “Everybody’s very interested to see what the court’s going to do with it.”

Various prior Second Amendment and gun policy posts:

November 29, 2013 in Drug Offense Sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, November 19, 2013

Latest USSC publication highlights remarkable "disparities"(?) in federal FIP sentences

I am pleased to see that the US Sentencing Commission now has up on its website another terrific new data document in its series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

As I have said before, I think this series is a very valuable new innovation coming from the USSC, and I have already learned a lot and benefited greatly from these publications.  This latest document, which "presents data on offenses under 18 U.S.C. § 922(g), commonly called 'felon in possession' cases," includes these notable data details:

In fiscal year 2012, 5,768 offenders were convicted of violating 18 U.S.C. § 922(g)....

One-quarter (25.2%) of offenders convicted under section 922(g) were assigned to the highest criminal history category (Category VI). The proportion of these offenders in other Criminal History Categories was as follows: 11.7% of these offenders were in Category I; 9.3% were in Category II; 21.1% were in Category III; 18.9% were in Category IV; and 13.8% were in Category V.

10.3% were sentenced under the Armed Career Criminal Act (ACCA) (18 U.S.C.§ 924(e))...

The average sentence length for all section 922(g) offenders was 75 months; however, one-quarter of these offenders had an average sentence of 24 months or less while one-quarter had an average sentence of 96 months or more.

The average sentence length for offenders convicted of violating only section 922(g) and who were sentenced under ACCA was 180 months.

The average sentence length for offenders convicted of violating only section 922(g) but who were not sentenced under ACCA was 46 months.

The title of this post has the term "disparities" in quotes followed by a question mark because these basic sentencing data about a pretty basic federal crime could be interpreted in many disparate ways. Given that all the offenders sentenced for FIP likely were engaged in pretty similar conduct (simple possession of a firearm) and all of them, by definition, had to have a serious criminal record in order to be subject to federal prosecution, one might see lots of unwarranted disparity among this offender group given the extraordinary outcome variations documented here -- in FY2012, over 10% of FIP offenders are getting sent away for an average of 15 years, but another 25% are going away for only 8 years, while another 25% are going away for only 2 years.

Then again, given the apparently varied criminal histories of the FIP offenders, the sentencing variation here surely reflects various (reasoned and reasonable?) judicial assessments of different levels of recidivism risk for different FIP offenders.  I certainly hope that the those being sentenced to decades behind bars for gun possession are generally those with very long rap sheets, and that those getting sent away only for a couple years are those with much more limited criminal histories.

Finally, in addition to noting the profound significance that past crimes clearly have on current sentencing in FIP cases, I must note that it is these past crimes that itself serves to convert the behavior here in to a federal crime.  Indeed, if one takes the Second Amendment very seriously (as I do), the actual "offense behavior" in these cases might often be subject to significant protection as the exercise of a fundamental constitutional right unless and until the person has a disqualifying criminal past.  Proof yet again that the past, at least when it comes to criminal sentencing and constitutional rights, is often ever-present.

November 19, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (3) | TrackBack

Monday, November 18, 2013

Ninth Circuit rejects Second Amendment attack on federal crime of gun possession by certain misdemeanants

In a lengthy panel opinion coupled with a notable concurrence, the Ninth Circuit today in US v. Chovan, No. 11-50107 (9th Cir. Nov. 18, 2013) (available here), rejects a defendant's Second Amendment challenge to the federal statute criminalizing gun possession by persons convicted of domestic violence misdemeanors. Here is how the majority opinion starts:

Following the entry of a conditional guilty plea, Daniel Chovan appeals the district court’s denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. § 922(g)(9).  Section 922(g)(9) prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life.  Chovan contends that § 922(g)(9) is unconstitutional both on its face and as applied to him because it violates his Second Amendment right to bear arms.  In the alternative, he argues that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii).  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We reject Chovan’s “civil rights restored” argument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g)(9) under intermediate scrutiny.

In a lengthy concurrence, Judge Bea explains why he thinks strict scrutiny is the right way to scrutinize the federal gun crime at issue here, and his opinion concludes this way:

The Heller opinion did not provide lower courts with explicit guidance on how to analyze challenges to statutes under the Second Amendment. If we are to apply the familiar tiers of scrutiny analysis in Second Amendment cases, instead of a pure textual, historical, and structural analysis, however, history and precedent still dictate a more stringent examination of these issues than the majority allow. Strict scrutiny has become an integral aspect of much of our constitutional jurisprudence. See Fallon, supra, at 1268 (ranking strict scrutiny “among the most important doctrinal elements in constitutional law”). After applying strict scrutiny to § 922(g)(9), I come to the same conclusion as do the majority, and uphold the law. The close look afforded by strict scrutiny, however, ensures that the law truly is narrowly tailored to further a compelling governmental interest, and ensures that the Second Amendment’s contours are drawn by the Constitution, and not by Congress.

November 18, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack

Monday, October 21, 2013

Chicago Sun-Times editorial explains why "Mandatory-minimum sentencing doesn’t work"

Continuing an important on-going debate in Illinois over use of mandatory minimum sentences to deal with the problem of violent gun crimes, the Chicago Sun-Times today has this extended editorial headlined "Mandatory-minimum sentencing doesn’t work." Here are excerpts:

Mandatory minimum sentences, touted by some as a cure for gun crimes, are little more than a power grab by prosecutors. The intent of a mandatory minimum sentence is to make sure that people convicted of certain serious crimes get prison time and not a slap on the wrist, such as probation. But in the real world, that’s not what happens.

In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.

Mandatory sentencing is a fiction. It simply takes the decision-making for sentencing away from judges sitting in open court, where their actions can be questioned by higher courts, and hands that huge power and responsibility to prosecutors, who make their decisions behind closed doors, never to be challenged.

Legislation that might be called to a vote this week in Springfield would triple Illinois’ mandatory minimum sentence from one to three years for people convicted of the illegal use of a weapon, and it would broaden the kinds of crimes covered. An earlier version advanced out of committee in the spring legislative session, but ultimately died. The bill is backed by Mayor Rahm Emanuel, Police Supt. Garry McCarthy and the families of some gun crime victims. McCarthy says 108 shootings or murders so far in 2013 would have been prevented had the bill already been a law this year. He cited the case of Bryon Champ, convicted in 2012 of the unlawful use of a weapon, who is accused of taking part in a September drive-by shooting that injured 13 in Chicago’s Cornell Square Park.

Clearly, we all wish Champ — if in fact he was one of the drive-by shooters — had still been behind bars. But what about other sorts of gun-possession offenders who would qualify for same mandatory minimum sentence? Would we really send an 87-year-old woman who lives in a dangerous neighborhood to prison for three years for illegally keeping a gun as protection? Should state Sen. Donne Trotter really have gone to prison for three years when a gun was found in his luggage at O’Hare Airport?

It’s a question that will come up more often in Illinois when the concealed carrying of weapons becomes legal next year, and people — forgetting they are armed — try to carry guns into prohibited places. Should those people go to prison for three years as well?

The thinking behind mandatory minimum sentences is that prosecutors can be better trusted than judges to mete out tough punishment. Cook County State’s Attorney Anita Alvarez criticizes judges for being “quite lenient.” But most judges in the criminal court system are former prosecutors. And from 2010 through 2012, about 14,000 people were charged in three categories of unlawful use of a weapon, but the number of convictions was less than half of that. Changing sentences in cases where there is no conviction wouldn’t make any difference.

In analyzing the bill, the University of Chicago Crime Lab estimated that putting more people in prison would lead to 3,800 fewer crimes per year, including 400 fewer serious violent crimes. But the Sentencing Policy Advisory Council calculates that had the stricter mandatory minimum law been in effect from 2010 through 2012, it would have boosted prison costs by about $393 million. A Department of Corrections note attached to the legislation last spring estimated the bill would result in an increase of 3,860 inmates, with additional operating costs of $701,712,300 and construction costs of $263,130,300 over 10 years. That money would have to come from somewhere. If that leads to smaller police forces or cutting out effective programs to prevent recidivism, we might wind up with more gun crime than before.

Julie Stewart, president of Washington-based Families Against Mandatory Minimums, noted in a Feb. 17 Chicago Sun-Times op-ed that Chicago’s murder rate actually jumped 16 percent after Illinois imposed its current one-year mandatory minimum in 2011. And a report released Thursday by the Northwestern School of Law Bluhm Legal Clinic concludes mandatory sentences would not deter crime....

On the national level, the Obama administration is trying to curb mandatory minimum sentencing, which is an idea that goes back to the 1980s. Illinois should be doing so as well.

October 21, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, October 17, 2013

"Is the Supreme Court only willing to work at the fringes of the Second Amendment?"

The question in the title of this post is the main headline of this notable and effective new commentary by Lyle Denniston at the blog of the National Constitution Center. (Hat tip: How Appealing.)  Here are excerpts:

The Constitution’s Second Amendment, the Supreme Court ruled five years ago, protects an individual’s personal right to have a gun for self-defense.  It has returned to the Second Amendment only once since then, in a decision three years ago extending that personal right across the nation, so that it can be used to challenge state and local gun control laws as well as such laws at the federal level.

Since then, more than a half-dozen test cases on the issue have been filed at the court, and each one has been bypassed.  It appears that no one on the court is pushing to return to the issue; it takes four votes on the bench to grant review, and there is no reliable indication that any case has drawn even one vote....

Although lower courts have issued an array of differing and sometimes conflicting decisions (the pattern that usually draws in the Supreme Court), the scope of the Second Amendment right is still in a kind of constitutional limbo.  It remained there on Tuesday, when the Justices turned aside an appeal by a Maryland man, Raymond Woollard, who lives near Baltimore. He once had a permit to have a gun that he could carry outside his home, because he had shown he faced a potential threat from a son-in-law who had shown violent tendencies.  But when he tried to get the permit renewed, he was turned down, on the premise that he had not proved that he still faced a threat to his safety.  The court’s refusal to hear his appeal came quickly, after the Justices’ first fleeting look at the case. That has been the pattern for the past several years....

The message that the Supreme Court has seemed to be sending — at least up until now — is that it is in no hurry to resolve open questions about how far constitutional gun rights extend. It has not even agreed to spell out in a final way the constitutional test that it will apply to judge the validity of any specific gun control law.

As this trend continues, it tends to put an exaggerated emphasis on each new case that reaches the Supreme Court: Will this be the one that will finally get the Justices’ attention; if not, what will it take?  Since the Supreme Court is the sole entity to determine the scope of the Second Amendment right (aside from the legislatures that can put together a clarifying constitutional amendment), judges and legislators across the country have to wonder when they will get new constitutional guidance.

Especially because the Supreme Court left so much unclear about the scope and application of the Second Amendment in Heller, and particularly now that these issues have been "percolating" in lower courts for a half-decade, I think it is getting to be past time for the Justices to take up some "Heller application" cases.  In this setting, the SCOTUS is starting to seem a bit like too many others decision-makers inside the Beltway: apparently unwilling or unable to make hard decisions about how competing priorities ought to be balanced in the development of Second Amendment jurisprudence, the Justices so far are avoiding making any decisions at all.

October 17, 2013 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (3) | TrackBack