Sunday, April 17, 2011
On the state SCt dockets: LWOP for teens in California and guns for pot users in Oregon
I sure wish an enterprising criminal law academic and/or practitioners would follow closely via a blog or other on-line resource all the interesting and ground-breaking criminal justice issues that regularly come before state supreme courts. There are lots of really good blogs that cover various specific criminal justice issues and some that give special attention to important criminal law rulings coming from certain federal circuits or a particular state's courts. But to my knowledge, nobody keeps a focused blogsphere eye on many cutting-edge criminal law issues as they come before state supreme courts generally.
This moment of longing comes to mind not only because I know I no longer am able to keep up with all significant state Blakely and death penalty developments, but also because of two new pieces at How Appealing reporting on two notable new cases before state supreme courts in California and Oregon:
In the California Supreme Court as reported here, "State court to review long sentences for teens": "The [California] Supreme Court has agreed to review a 16-year-old's 110-year prison sentence for three attempted murders and decide whether juveniles convicted of crimes other than homicide are constitutionally entitled to a realistic chance at parole."
- In the Oregon Supreme Court as reported here, "In Oregon, medical pot and guns go hand in hand": Cynthia Townsley Willis, a retired school bus driver and grandmother of four, carries a spray bottle of marijuana-infused skin oil in her purse to treat her frequent, painful muscle spasms. Her Walther P22 pistol most often gets slipped into a shoulder holster under her jacket — driving the lonely roads that traverse the hills and dense woodlands of the Rogue Valley, who knows when she might need it? ... Willis, a diminutive 54-year-old California native, is now one of four plaintiffs in a case before the Oregon Supreme Court to determine whether medical marijuana users are entitled to the same gun-carrying privileges as everyone else."
April 17, 2011 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Sunday, April 10, 2011
Baltimore gun offender registry declared unconstitutional as operated
This local article, headlined "Judge says Baltimore gun registry unconstitutional: Decision chides "vague, overly broad" regulations," reports on an interesting and important ruling from Maryland's state courts late last week. Here are the details:
Baltimore's gun offender registry is unconstitutional, a Circuit Court judge ruled Friday, calling into question one of the city's signature programs against gun violence. Judge Alfred Nance said the Police Department had "failed or refused to comply" with establishing clear regulations for the registry, which required people convicted of gun crimes to provide addresses and other information with the city every six months for a period of three years.
The city judge also called the program, created in 2007, "unconstitutionally vague and overly broad." Among the data registrants must provide, according to a list, is "any other information required by the rules and regulations adopted by the Police Commissioner," language that Nance said appeared to give police "limitless discretion." The city said it was considering whether to appeal.
Though Nance's opinion is not binding on other judges, they might follow his lead, said University of Maryland law professor Douglas Colbert. "It will have an effect over anyone appearing before Judge Nance, and it could have an influential effect on his colleagues," said Colbert. "It's a ruling the state would likely not want to remain unchallenged."
Sheryl Goldstein, director of the mayor's Office on Criminal Justice, said city officials are pleased that the opinion reaffirmed that the program did not conflict with state laws, a complaint that had been raised when the program was being created. "This is one judge's opinion, and one of the first on the issue," she said. "We're considering all of our legal options, and in the meantime, we're going to keep the gun offender registry up and running."
The Office of the Public Defender brought the challenge in the case of Adrian Phillips, who was convicted of armed robbery and handgun offenses in 2008. He was charged in February with failing to register as a gun offender as a result of that sentence....
The law was modeled after a registry in New York City, and fueled by statistics showing that half of those charged with homicides in Baltimore had previous gun convictions. City officials say the program helps police keep close tabs on repeat offenders and other "bad guys with guns," as Police Commissioner Frederick H. Bealefeld III often calls them....
"The purpose of crafting the gun offender registry was to create a method of oversight and knowledge of gun offenders, with the idea of deterring future gun crime," Goldstein said. "Folks who are registered have a low rate of recidivism, period, and very low with respect to gun crime."
The law requires those convicted of shootings or other violations of gun laws to provide personal information to the police for a citywide database. Offenders must provide names, aliases, addresses and information about their convictions twice a year. Police also visit homes to verify addresses and connect offenders with social services.
Nance said the city could legally create a gun offender registry, but the Police Department had failed to give "reasonable guidance and fair notice to the public" on the specifics of the law. "The rules and regulations are not simply unclear, they are unknown and unreviewable outside of the walls of the Police Department," he wrote.
The ruling here apparently upholds the basic concept of a local gun offender registry, a concept which itself seems to have perhaps more empirical support as a contributor to public safety than sex offender registries. As a result, I hope that the folks in Baltimore (and perhaps in other communities with serious gun violence problems) will continue to refine this form of a registry in order to make its operation constitutionally sound.
Monday, April 04, 2011
"Medical marijuana users fight for gun rights"
Cynthia Willis calls up and down the firing range to be sure everyone knows she is shooting, squares up in a two-handed stance with her Walther P-22 automatic pistol and fires off a clip in rapid succession. Willis is not only packing a concealed handgun permit in her wallet, she also has a medical marijuana card. That combination has led the local sheriff to try to take her gun permit away.
She is part of what is considered the first major court case in the country to consider whether guns and marijuana can legally mix. The sheriffs of Washington and Jackson counties say no. But Willis and three co-plaintiffs have won in state court twice, with the state's rights to regulate concealed weapons trumping federal gun control law in each decision.
With briefs filed and arguments made, they are now waiting for the Oregon Supreme Court to rule. When it's over, the diminutive 54-year-old plans to still be eating marijuana cookies to deal with her arthritis pain and muscle spasms, and carrying her pistol. "Under the medical marijuana law, I am supposed to be treated as any other citizen in this state," she said. "If people don't stand up for their little rights, all their big rights will be gone."...
Oregon sheriffs are not happy about the state's medical marijuana law. "The whole medical marijuana issue is a concern to sheriffs across the country who are involved in it mainly because there is so much potential for abuse or for misuse and as a cover for organized criminal activity," said Washington County Sheriff Rob Gordon, who became part of the Willis case because his office turned down three medical marijuana patients in the Portland suburbs for concealed handgun permits. "You can't argue that people aren't misusing that statute in Oregon. Not everybody, of course. Some have real medical reasons. But ...the larger group happens be people who are very clearly abusing it."
The sheriffs argue that the 1968 U.S. Gun Control Act prohibits selling firearms to drug addicts, and they say that includes medical marijuana card holders. Their briefs state that they cannot give a permit to carry a gun to someone prohibited from buying or owning a gun. But the cardholders have won so far arguing this is one situation where federal law does not trump state law, because the concealed handgun license just gives a person a legal defense if they are arrested, not a right.
Oregon's attorney general has sided with the marijuana cardholders, arguing that the concealed handgun license cannot be used to buy a gun, so sheriffs who issue one to a marijuana card holder are not in violation of the federal law....
Sixteen states now have medical marijuana laws, according to NORML, an advocacy group. There is no way to determine how many medical marijuana cardholders also have gun permits. Patient lists are confidential, and an Oregon court ruled the sheriffs can't look at them.
NORML executive director Allen St. Pierre said Oregon courts have not been entirely medical marijuana friendly. While they have upheld the right to pack a pistol, they have also ruled that employers can fire people who use medical marijuana. "A person who uses medical cannabis should not have to give up their fundamental rights as enumerated by the Constitution,"' St. Pierre said. Gordon said he expects the gun issue to come up in other states with medical marijuana laws.
Wednesday, March 16, 2011
Eleventh Circuit rejects notable ACCA selective prosecution claim
The Eleventh Circuit today in US v Jordan, No. 10-11534 (11th Cir. March 16, 2011) (available here) rejects an interesting selective prosecution claim brought by a Georgia defendant asserting that "prosecutors in the Northern District of Georgia target African Americans for prosecution under the Armed Career Criminal Act." Here is the heart of the panel's discussion of the claim:
The district court correctly denied Jordan’s motion to dismiss for selective prosecution because, at the very least, he failed to establish discriminatory effect. As the record shows, Jordan was convicted of possession of a firearm and subject to the Armed Career Criminal Act sentencing enhancement under 18 U.S.C. § 924(e)(1), because he had been convicted of at least three prior qualifying convictions for purposes of the ACCA. In order to establish discriminatory effect, Jordan would have to present clear evidence that a similarly situated defendant of another race was treated differently than he. The data that Jordan submitted in his motion to dismiss showed only that African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia, while they account for significantly less than 93% of the general population or of the population of convicted felons who carry firearms. Jordan’s data did not, however, include the criminal histories of the other defendants. As a result, his figures are not probative of the “similarly situated” inquiry of the discriminatory effect test. See Bass, 536 U.S. at 864; Quinn, 123 F.3d at 1426. Indeed, Jordan did not show that a single arrestee who was not prosecuted under the ACCA qualified for such prosecution, much less possessed a criminal history as substantial as his own. Therefore, he “has not presented ‘some’ evidence tending to establish selective prosecution,” much less facts sufficient to create a reasonable doubt about the constitutionality of his prosecution. Accordingly, Jordan was not entitled to an evidentiary hearing or discovery on the claim, and his selective prosecution claim fails.
I think the Eleventh Circuit is right on the law here, but I hope I am not the only one troubled to learn that there is evidence indicating that "African Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia." That data point alone does not itself prove or even necessarily suggest constitutionally-biased prosecutorial decision-making, but it is a data point that is deeply disturbing even if it is not in any way the product of constitutionally questionable decision-making.
Friday, February 11, 2011
Connecticut legislators exploring creation of state-wide gun-offender registry
As detailed in this local Connecticut article, a "measure that would create the nation's first statewide registry for gun offenders went before lawmakers Thursday at a public hearing on a package of gun bills." Here are the specifics:
The gun-offender database, modeled after the sex-offender registry, would give police a potent new tool to combat violence, said Senate Majority Leader Martin Looney (D-New Haven), who proposed the idea. Several cities, including New York City, Baltimore and Washington D.C., have established such requirements for gun offenders, but no state has done so, Looney said.
Just as those convicted of sex offenses must check in with local authorities, gun offenders would be required to register with local police. But unlike the sex-offender registry, the information on gun offenders would be accessible only to law enforcement officials.
The requirement would apply to people who committed serious gun violations such as those who used a firearm to commit a crime, Looney said. "No law-abiding citizen or sportsman would have anything to fear from this bill," he said.
During the hearing before the legislature's public safety committee, several lawmakers questioned why the registry was needed. They pointed out that a national crime database already contains information about gun offenders. But Looney and other supporters said the registry, unlike the national database, would give law enforcement the ability to pinpoint where the offenders live.
And, like the sex-offender registry, the mere fact of filing with local authorities "creates a psychological impact of knowing [the offender] is being watched more closely," Looney said....
Looney's proposal was supported by police but drew criticism from gun owners and their lobbyists. "If we're going to have a gun-offender registry, why don't we have a carjacking registry? ... Why don't we have a DWI registry?" asked Robert T. Crook, executive director of the Coalition of Connecticut Sportsmen.
Thursday, December 30, 2010
Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)
The Fourth Circuit has added a final bit of Second Amendment fireworks to close out 2010 through a long decision today in US v. Chester, No. 09-4084 (4th Cir. Dec. 30, 2010) (available here). Here is how the majority opinion by Chief Judge Traxler starts and ends in Chester:
The sole issue presented in this appeal is whether William Samuel Chester’s conviction for illegal possession of a firearm under 18 U.S.C. § 922(g)(9) abridges his right to keep and bear arms under the Second Amendment in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). We vacate the decision below and remand for further proceedings....
We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond. Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.
Here is how Judge Davis starts and ends a quite lengthy concurrence:
In light of the highly persuasive decision of the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc), pet. for cert. pending, sustaining the constitutionality of 18 U.S.C. § 922(g)(9), the district court should have no difficulty in concluding that the application of § 922(g)(9) to offenders such as Chester passes Second Amendment scrutiny, exactly as district courts have already concluded. See United States v. Smith, 2010 WL 3743842 (S.D.W. Va. Sept. 20, 2010) (applying Skoien and sustaining statute); United States v. Staten, 2010 WL 3476110 (S.D.W. Va. Sept. 2, 2010) (same)....
I can foresee no difficulty for the district court in sustaining the constitutional validity of the application of § 922(g)(9) in this case. Nevertheless, under the circumstances of the law’s understandably slow evolutionary course of development, I am content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.
A few related Second Amendment posts:
- Can dismissed domestic violence complaint justify revoking gun permit?
- Split en banc Seventh Circuit in Skoienupholds categorical exclusion of DV misdemeanant from Second Amendment
- Notable press account of Skoein Second Amendment ruling with partisan perspectives
- Skoien and the many challenges of Second Amendment jurisprudence
- Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
- Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
- Assailing the unjustified Second Amendment limits in Heller
- "The Standardless Second Amendment"
UPDATE: Eugene Volokh has this effective new post discussing the Chester opinion, which has prompted an interesting comment dialogue about whether and how often minor matters get turned into domestic violence misdemeanor. And, like the thoughtful comments below, folks at Volokh are discussing whether William Samuel Chester’s makes an effective poster-child for Second Amendment rights.
Tuesday, December 21, 2010
NJ Governor Christie commutes controversial gun possession sentence
A helpful reader alerted me to a notable clemency development from the Garden State, which is reported in this Fox News piece. Here are the basic from the start of the news report:
A man given seven years in prison after being found with two guns he purchased legally in Colorado has had his sentence commuted, New Jersey Gov. Chris Christie announced Monday.
The case of Brian Aitken, 27, had become a cause célèbre among gun-rights advocates. On Jan. 2, 2009, Aitken, an entrepreneur and media consultant with no prior criminal record, muttered to his mother that life wasn't worth living after a planned visit with son was abruptly canceled at the last minute. Aitken then left his mother's home in Mount Laurel as she called police, who later found two locked and unloaded handguns in the trunk of his car.
Aitken had purchased the guns legally in Colorado, and he passed an FBI background check when he bought them, according to his father, Larry Aitken. Brian also contacted New Jersey State Police before moving back back to the Garden State to discuss how to properly transport his weapons. But despite those good-faith efforts, Larry Aitken said, Brian was convicted on weapons charges and sent to prison in August.
Judge James Morley would not allow the argument in trial earlier this year and Christie later declined to reappoint the judge due to an unrelated case.
According to an order for commutation of sentence released by Christie on Monday, Aitken was to be released from custody as soon as administratively possible. The order is subject to revocation at any time.
The official Order for Commutation of Sentence can be found at this link.
Tuesday, December 14, 2010
Another star going to NY prison for years for gun possession... and prompting more Second Amendment wondering
As detailed in this news report, "Ja Rule became the latest US rapper to face jail on a gun charge, after pleading guilty Monday in New York to attempted possession of a weapon, prosecutors said." Here are the basics:
Ja Rule, whose real name is Jeffrey Atkins, is expected to be sentenced to two years behind bars and 18 months of supervised release after pleading guilty to attempted criminal possession of a .40 caliber handgun.
Sentencing is on February 9, a spokeswoman for the Manhattan District Attorney's office said. A more severe punishment could have been expected had Ja Rule gone to trial and been convicted.
Manhattan District Attorney Cyrus Vance said that the city, which has some of the strongest anti-gun laws in the nation, is still working to stem gun violence. "Gun crimes are serious offenses and today's guilty plea should send a serious message to anyone thinking of illegally bringing a gun into New York City," he said.
The rapper was caught with the pistol in his sports car after a 2007 concert in Manhattan. He had been performing alongside rapper Lil Wayne who was also charged with gun possession in a separate arrest and spent much of 2010 in prison.
Though I do not know all the details surrounding Ja Rule's gun possession and the plea deal his attorney's worked out here, I do know that I continue to be disappointed and somewhat surprised that high-profile celebrity defendants facing serious prison time for mere gun possession are not trying to actively litigate a Second Amendment defense to their prosecution. Assuming all that the Ja Rule did wrong was to possess a handgun and that he could reasonably claim that he possessed this handgun for personal self-defense, I do not fully understand why Ja Rule and his lawyers (and his agents) would not want to try to litigate a Second Amendment claim based on Heller and McDonald through the New York state courts.
For low-profile and not-wealthy defendants, I can understand how the notoriety and economic costs of a Second Amendment challenge may make such a defense to gun possession charges not worth pursuing. But for a rapper like Ja Rule, the notoriety could be a benefit to his career and the economic costs should not be a show-stopper. (Indeed, I suspect some public interest lawyers might even take on a high-profile constitutional case like this at a discount.) Moreover, Ja Rule would likely be able to stay out on bail while this kind of claim was litigated, and the prospects for a good plea deal would not seem to get much worse from the decision to litigate a constitutional challenge to the very law with which the defendant is charged.
If Ja Rule has a long criminal history of other offenses or if there are other factors preventing him from being a sympathetic Second Amendment litigator, then I guess I understand why he might accept two-years in prison for simple gun possession. But lots of defendants get much less prison time for crimes that seem much worse and do not have even the patina of the exercise of a fundamental constitutional right. Thus, I never quite understand why defendants like Ja Rule and Plaxico Burress and Lil Wayne accept deals that mean long stretches in prison for doing something that a majority of the Supreme Court might well say is constitutionally protected to do.
Friday, November 19, 2010
Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities
As reported in this piece in the Atlanta Journal-Constitution, which is headlined "Federal judge to plead guilty in drug case," senior U.S. District Judge Jack Camp appears to have worked out a sweet plea deal following his arrest on various drug and gun offenses. Here are some of the specifics:
Senior U.S. District Judge Jack Camp, whose arrest on charges of buying drugs and his relationship with a stripper shocked the state's legal community, will plead guilty Friday to federal charges, his lawyer said. “We’ve reached a mutually agreeable resolution of the case,” Atlanta attorney Bill Morrison said Thursday. Morrison would not disclose the specific charges the judge would plead guilty to.
Camp, 67, is scheduled to enter his plea in Atlanta before Senior U.S. District Judge Thomas Hogan, a judge from Washington who was assigned the case. On Thursday, Hogan disclosed Camp's decision to enter a guilty plea in an entry on the court's online docket sheet.
In a court filing Thursday, federal prosecutors indicated Camp will plead guilty to at least one felony charge -- aiding and abetting a felon's possession of cocaine, a painkiller and marijuana. The filing did not disclose whether Camp will enter pleas to other charges.
Camp could avoid prison time if, as expected, his agreement with federal prosecutors does not require him to plead guilty to the most serious charge against him — being an illegal drug user who was found in possession of a handgun — said Steve Sadow, an Atlanta defense attorney who is not involved in the case. Federal sentencing guidelines recommend at least five months in prison for that charge, Sadow said. If Camp pleads guilty to lesser charges, he could receive probation, home confinement or time in a halfway house, he said.
Camp, a member of a prominent Coweta County family, was appointed to the federal bench by President Ronald Reagan in 1988. He was serving as chief judge when he took senior status at the end of 2008.
Camp was arrested in early October, and a detailed affidavit by an FBI agent accused the judge of buying cocaine, marijuana and prescription painkillers. The affidavit said Camp shared the drugs with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta.
Camp, who is married, met the dancer when he purchased a private dance from her, the affidavit said. He returned the next night and purchased another dance and sex from her, and the two then began a relationship that revolved around drug use and sex, according to court records.
The stripper began cooperating with the FBI, and on Oct. 1 she asked Camp to follow her to a drug deal to protect her. Camp agreed, saying, "I'll watch your back anytime. ... I not only have my little pistol, I've got my big pistol so, uh, we'll take care of any problems that come up," the affidavit said.
Though federal practitioners can and should correct me if I am wrong, I believe it is fairly uncommon that a defendant involved in a series of drug transactions with the involvement of firearms will be able to cut a plea deal that enable him to potentially avoid any prison time. I am not directly asserting that Judge Camp is getting special treatment, but I do think the judge's own familiarity with the ins-and-outs of federal criminal law and practice likely played a significant role in how this case is getting resolved.
In the end, I will be surprised if any plea deal here locks in a specific sentence of Judge Camp. Assuming the deal leaves Judge Hogan with some sentencing discretion, I would not be surprised if Judge Camp still may face some hard time. (And perhaps readers might want to give Judge Hogan some early sentencing advice via the comments.)
Related post (which generated lots of comments):
UPDATE: This new AP report provides details on the basics of the plea that was entered today:
U.S. Senior Judge Jack T. Camp pleaded guilty to the felony charge of aiding and abetting a felon's possession of cocaine when he bought drugs for the stripper, who was secretly cooperating with authorities. He also pleaded guilty to two misdemeanors: possession of illegal drugs and illegally giving the stripper his government-issued laptop.
Camp, 67, faces up to four years in federal prison when he is sentenced March 4, but he is likely to get less time. Camp also agreed to resign from the bench and cooperate with any questions authorities may have regarding the cases he handled while he was being investigated.
When a judge asked Camp if the charges were accurate, he replied, "I regret ... I am embarrassed to say it is, your honor." Neither he nor his attorneys offered any explanation for his actions.
Thursday, July 15, 2010
NBA's Delonte West sentenced (lightly? harshly?) for weapons offenses in Maryland
The fact that the Supeme Court has now made clear that the Second Amendment applies to the states apparently did not prompt NBA player Delonte West or his lawyer to think he ought to try to fight his prosecution for keeping and bearing arms on a Maryland highway last year. As detailed in this Washington Post article, West today pleaded guilty and was sentenced for his arms possession:
NBA player Delonte West pleaded guilty Thursday to two weapons charges and was sentenced by a Prince George's County judge to eight months of home detention, two months of probation and 40 hours of community service.
West had been charged with six weapons offenses and two traffic violations. He pleaded guilty to carrying a dangerous weapon -- an eight-inch bowie knife -- and illegally transporting a handgun.
At a court hearing in Upper Marlboro, West's attorney, C. Todd M. Steuart, said his client was taking the weapons from his mother's home in Brandywine to his house in Fort Washington when he was stopped by a Prince George's police officer on the Capital Beltway in the Landover area, miles away from either home. West was carrying two handguns, a shotgun, the knife and more than 100 shotgun rounds.
West told Circuit County Judge Graydon S. McKee III that he felt remorse for the incident. "I want you to know how apologetic I am to you and all the other professionals in here who do the right thing," he said. West said he often speaks to Washington area youth who have been in trouble. "I'm able to share my experiences with them," he said. "I'm able to relate to them. If I never dribble a basketball again, I think I found my calling."
Following the hearing, State's Attorney Glenn F. Ivey said the sentence will allow West to go to Cleveland for his job as a player with the Cleveland Cavaliers. West will be allowed to attend practices, home games and away games, Ivey said.
Prince George's prosecutors typically ask for a year in jail for defendants convicted of a weapons offense. Judges usually sentence defendants with no prior convictions -- like West -- to probation or home detention, Ivey said. The terms of West's plea bargain ensure he is being treated no differently than any other defendant in similar circumstances, Ivey said.
As the title to this post suggests, I am unsure whether it is fair to view West's sentence as light, harsh, or perhaps just right. As I suggested in this post right after West's arrest, a person with a robust view of the Second Amendment might be greatly concerned that West is subject to a significant sanction for merely keeping and bearing arms. And yet, in light of the significant prison sentences given to Plaxico Burress and Lil Wayne for gun possession in New York City, West likely should consider himself lucky to avoid any serious jail time.
Monday, June 28, 2010
Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits
As regular readers know, I have always had a hard time squaring the Heller opinion's doctrinal embrace of an individual Second Amendment right to keep and bear arms for self-defense with its dicta suggesting that former felons can still be criminally punished (sometimes severely) for gun possession. The Supreme Court's explanation today in its McDonald opinion as to why and how Heller now applies to the states continues to puzzle me concerning the linkage of Second Amendment doctrine and dicta.
As for doctrine, Justice Alito's chief opinion calls self-defense "a basic right" and explains that "in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right. Slip op.at 19 (emphasis in original). In addition, Justice Alito's opinion repeatedly describes Second Amendment rights as "fundamental," and it expressly rejects the Respondents' arguments that "in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause." Slip op. at 33. In short, individual gun rights are "fundamental," they help safeguard another "basic right," and they must not be treated as "second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees."
But can anyone think of any other "fundamental" right, which fosters another "basic" right and is a "Bill of Rights guarantee," that legislatures can categorically and forever prohibit former felons from exercising? Consider the First Amendment: would it be constitutional to prohibit former felons from writing a newspaper op-ed or from attending a church after they have fully completed their lawfully imposed punishment? Or consider the Fifth Amendment: would it be constitutional to prohibit former felons from receiving just compensation when their property is taken? (Of course, allowing former felons to retain some Second Amendment rights could pose a threat to public safety, but Justice Alito rightly notes that many constitutional rights have "controversial public safety implications." Slip op. at 35-36.)
And yet, toward the end of his opinion, Justice Alito in dicta "repeats [Heller's] assurances" that the Court's Second Amendment rulings do "not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons'." Slip op. at 39-40. But doesn't this dicta essentially connote that the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees"?
Some older posts on the Heller and felon gun rights:
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The lack of originalist justification for excluding felons from the Second Amendment
- Former SG Ted Olson suggests Heller could impact broad prohibitions on felon gun rights
- Assailing the unjustified Second Amendment limits in Heller
- "Convicted Felon Sues State Over Right To Bear Arms"
- Fascinating little expungement ruling concerning Second Amendment rights from the Sixth Circuit
- North Carolina Supreme Court finds state constitutional right for some felons to bear arms
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Heller's impact on felon-in-possession crimes finally starting to generate attention
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Why Can’t Martha Stewart Have a Gun?"
- SCOTUS decides Second Amendment applies to the states in 5-4 opinion
- The likely state criminal litigation impact of McDonald and state applications of the Second Amendment
Monday, May 24, 2010
Cause for celebration: FBI stats show crime rates dropping againThis new Reuters report provides the latest, greatest encouraging statistics about crime rates:
Murders and auto thefts fell sharply in the United States in 2009, extending the downward trend in violent and property crimes, according to preliminary statistics released by the FBI on Monday.
It was the third straight annual decline in violent crimes and seventh straight annual decline for property crimes, which occurred despite a weak economy, which is often linked to spikes in criminal activity.
Each region of the country experienced a drop in crime, with the southern United States experiencing the largest decline -- a 6.6 percent drop -- according to the FBI.
It did not provide a reason for the overall decline, which came as the economy started to show signs of growth after one of the worst recessions since the Great Depression. Experts and politicians often link a sour economy with higher crime.
Murders fell 7.2 percent, while forcible rapes decreased 3.1 percent. Cities with 500,000 to 999,999 inhabitants saw violent crime, which also includes manslaughter and robbery, drop the most among city groupings, down 7.5 percent.
There was an increase in the number of murders in cities with populations of 25,000 to 49,999, jumping 5.3 percent. Additionally nonmetropolitan counties experienced a small increase as well, up 1.8 percent, the statistics showed.
In the nonviolent crime category, motor vehicle theft dropped 17.2 percent, while burglaries fell 1.7 percent, according to the preliminary figures released by the FBI. Arson also fell 10.4 percent in 2009.
As I have said before and will say again, the continued decrease in crime rates in recent years is an extraordinarily great development that all serious criminal justice researchers should be trying mightily to assess and better understand. I am not sure if we are doing anything that much better in the sentencing and corrections arenas, but everyone should be very grateful for the continuing positive trends whether or not any causes or reasons can be identified and creditted.
UPDATE: I just received via e-mail a link to this notable press release which provides a notable spin on the new crime data:
For the third year in a row, violent crime has declined in the United States while increasing numbers of American citizens own firearms and are licensed to carry, a trend that belies predictions of anti-gunners that more guns will result in more crime, the Citizens Committee for the Right to Keep and Bear Arms said today.
Preliminary data from the FBI’s Uniform Crime Report shows that the violent crime rate went down 5.5 percent in 2009, compared to statistics from 2008. This covers all four categories of violent crime: murder, robbery, aggravated assault and forcible rape. Violent crime went down 4 percent in metropolitan counties and 3 percent elsewhere, according to the FBI.
At the same time, the agency’s National Instant Check System reports continued increases in the number of background check requests and the National Shooting Sports Foundation has reported increased federal firearms excise tax allocations to state wildlife agencies, an indication that more guns and ammunition are being purchased.
“This translates to one irrefutable fact,” said CCRKBA Chairman Alan Gottlieb. “There are more guns in private hands than ever before, yet crime rates have declined. In plain English, this means that gun prohibitionists have been consistently wrong. Higher rates of gun ownership have not resulted in more bloodshed, as the gun ban lobby has repeatedly forecast with its ‘sky-is-falling’ rhetoric."
Monday, May 17, 2010
Interesting data and discussion about guns in DC roughly two years after Heller
With Graham and Comstock now decided, I think the biggest constitutional law case still pending for con law and criminal justice fans is probably the McDonald Second Amendment incorporation case. (There are a bunch of other significant SCOTUS sentencing cases still pending --- Barber, Carr, Dillon, Dolan to name a few --- but I suspect most of these will be decided on relatively narrow grounds.) And with McDonald on the horizon, I found these data and discussions from this Wall Street Journal article about DC's post-Heller gun regulations quite interesting:
The U.S. Supreme Court overturned the District of Columbia's 32-year ban on handguns in 2008, a victory for the gun-rights lobby that seemed to promise a more permissive era in America's long tussle over gun ownership. Since then, the city has crafted rules that are proving a new, powerful deterrent to residents who want to buy firearms....
Eleanor Holmes Norton, the District of Columbia's non-voting representative in Congress, is blunt about the point of the city's laws: discouraging gun ownership. "To get them you have to go through a bureaucracy that makes it difficult," she said in an interview. Her constituents tend to oppose firearms because of gun violence, she said. "Nobody thinks we would have fewer shootings and fewer homicides if we had more relaxed gun laws."
Kenneth Barnes, 65, became a D.C. gun-law activist after his son was shot to death in his clothing store in 2001. He supports the city's current gun law. "I have no issue with the right to bear arms," but the Supreme Court's decision gave the city the right to set gun laws for its citizens, he said. "What we're talking about is self determination."
In 2009, the first full year the law was in effect, homicides in the city dropped to 143 from 186 in 2008. The 2009 total was the lowest since 1966....
Gun-control supporters say the District is acting within the Constitution, in that Heller didn't outlaw all gun control. "From our perspective, there's a broad range of gun-control steps that can be taken that would be constitutional post-Heller," said Chad Ramsey of the Brady Campaign to Prevent Gun Violence.
Wayne LaPierre, executive vice president of the National Rifle Association, said the city's new rules strike against the spirit of the Supreme Court's decision. "Can you go out and buy guns in D.C. and defend yourself as the Supreme Court said you should be able to? No. The citizens can't experience the freedom from a practical level. What good is winning it philosophically?"
In the months since the Heller decision through April, the city has registered 1,071 guns, including 756 handguns and 315 "long" guns, such as rifles. That's a rate of about 181 guns per 100,000 residents. Before the Supreme Court decision, the rate of registered guns in Washington was close to zero.
Across the U.S., federal law-enforcement agencies estimate the total number of guns is between 200 million and 350 million, which results in a rate between 65,000 to 114,000 guns per 100,000 people nationally. A 2006 survey by the University of Chicago's National Opinion Research Center found gun ownership in 34% of all homes.
Right now, the legal advantage lies with the District. In a federal District Court ruling in March, Judge Ricardo Urbina upheld the city's gun law, writing that the Supreme Court didn't rule gun registration "unconstitutional as a general matter." The judge concluded the city had the power to limit the kinds of firearms permissible and the size of ammunition magazines.
As regular readers know, I think many of the federal and state laws that categorically prohibit and threaten to severely punish any non-violent felon who takes possession of any kind of gun "strike[s] against the spirit of the Supreme Court's decision." But, because dicta in Heller suggests that these laws were not unconstitutional as a general matter, those federal laws continue to operate to prevent millions of persons from keeping and bearing arms. If (and when) the McDonald Second Amendment incorporation case opens up constitutional attacks on these laws at the state level, a cottage industry of gun regulation litigation is sure to ensue.
Saturday, May 15, 2010
"Heller, McDonald and Murder: Testing the More Guns, More Murder Thesis"The title of this post is the title of this piece on SSRN that is especially timely while we all await the Supreme Court's next ruling in the Second Amendment. Here is the abstract:
We examine several aspects of the more guns, more murder hypothesis. We find that ordinary people typically do not kill in a moment of rage, so that preventing them from owning guns will not save lives. Societies without guns are not typically peaceful and safe. Historically, more guns are associated with less murder. Modern Europe nations with very high gun ownership rates have much lower murder rates than low gun ownership nations. In the United States: the colonial period of universal gun ownership saw few murders and few of those were gun murders. More guns do not mean more murder.
Friday, March 26, 2010
Lots of gun news from DC: Gilbert Arenas gets probation for gun possession, while Dick Heller loses latest Second Amendment case
Proponents of gun rights in DC might be inclined this afternoon to remember the old saying "ya' win some, ya' lose some," after gun possessor Gilbert Arenas had a pretty good day in a DC court, while gun possessor Dick Heller had a not-so-good day in a DC court. Here are the basic headlines and leads from coverage from the Washington Post:
Washington Wizards star guard Gilbert Arenas was spared a jail sentence Friday when a judge sentenced him to probation for bringing guns into the Verizon Center, ending a high-profile locker room confrontation with a teammate that changed the makeup of the team and Washington-area sports.
D.C. Superior Court Judge Robert B. Morin issued the sentence after a 100-minute hearing before a packed courtroom. Morin sentenced Arenas to 18 months in jail, but suspended that part of the sentence. He ordered the star to serve two years probation to begin with 30 days in a halfway house. He also ordered Arenas to serve 400 hours of community service and pay a $5,000 contribution to a crime victim's fund.
Corrections officials will determine in the next few days what halfway house he will be assigned to. Once there, Arenas will stay overnight, but be allowed to leave during the day to serve his community service.
A federal judge on Friday upheld limitations on gun ownership that the District of Columbia put in place following a 2008 Supreme Court decision overturning the city's outright ban on handguns.
Dick Heller, the plaintiff in the landmark Supreme Court case, had challenged the new regulations, claiming the registration procedures, a ban on most semiautomatic weapons and other limitations violated the intent of the high court's decision.
U.S. District Judge Ricardo M. Urbina sided with the city, saying the Supreme Court decision did not ban reasonable limits on gun ownership designed to promote public safety.
Thursday, March 25, 2010
"Jail or no jail? Fateful day arrives for Arenas"
The title of this post is the headline of this new AP piece focused on the high-profile sentencing question that will be answered at a court proceeding in DC on Friday. Here is some background to help readers opine on the question:
The Washington Wizards three-time All-Star point guard will be sentenced Friday in D.C. Superior Court on one felony count of violating the District of Columbia's strict gun laws. Judge Robert E. Morin will decide whether Arenas does jail time or gets probation. The prosecution and defense teams stated their cases earlier this week in voluminous filings. It's all far beyond anything Arenas imagined on that December morning when he says he brought four guns to the locker room to play a prank on a teammate.
Prosecutors want Arenas to go to jail for at least three months. They point out that he lied repeatedly about why the guns were in the locker room, that he tried to cover up what happened, that he displayed a cavalier attitude about the whole affair, that he knew bringing guns into D.C. was illegal, and that he has a prior gun conviction....
Arenas' lawyers are asking for probation and community service, arguing that he was playing a misguided joke with no intention to harm anybody. They point out that the guns were unloaded, that Arenas' lighthearted comments about the incident were misinterpreted, and that he's a good role model who goes beyond the call of duty when it comes to community service. They add that he was confused about D.C.'s gun laws, and that he's already been severely punished through humiliation and the loss of tens of millions of dollars from canceled endorsements and his suspension without pay for the rest of the NBA season....
The maximum term for Arenas' crime is five years. The sentencing guidelines for someone with his record call for 6-24 months, although those guidelines also allow for probation.
A general survey of similar cases over the last two years in the city indicate that about half of the defendants convicted of Arenas' crime receive some jail time, but the mitigating circumstances vary widely. Arenas' prior conviction — a no contest plea to carrying a concealed weapon in California in 2003 — was already a major strike against him, and the evidence revealed this week that he appeared to instigate a cover-up — as shown in a text message produced by prosecutors — has further damaged his case....
Gun control advocates will be monitoring Friday's developments closely. Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, said he thinks jail time is appropriate in Arenas' case.
I am not at all surprised that gun control advocates are eager to have a prominent person imprisoned merely for possessing a gun and are vocally calling for jail time for Arenas. I am also not surprised, though I am a but disappointed, that gun rights advocates are not providing any support for Arenas or urging that mere gun possess should not be the basis for a term of imprisonment. Arenas, like Delonte West and Lil Wayne and Plaxico Buress and other similar celebrities who get in trouble for problematic gun possession in urban areas with strict gun control laws do not seem to be the type of gun owners that many gun rights advocates are eager to make their "test case" in either the media or the courts.
So, dear readers, you be the judge: what would you give Arenas?
Some related posts on the Arenas case and other celebrity gun possession cases:
Tuesday, March 23, 2010
Federal prosecutors recommend 3-month prison sentence for gun possession by Gilbert ArenasAs detailed in this new post at a Washington Post blog, "Prosecutors recommended on Tuesday that Wizards star guard Gilbert Arenas spend three months in jail for bringing guns into the Verizon Center locker room." Here's more:
Prosecutors also proposed that Arenas serve three years probation and perform 300 hours of community service. The recommendations came in a sentencing memo to the court that is required in most criminal cases. Arenas's formal sentencing is Friday.
In a scathing 61-page memo, Assistant U.S. Attorney Christopher R. Kavanaugh wrote that his office is seeking jail time primarily because Arenas initially provided inconsistent stories about why he had the guns in the locker room and that he never showed any remorse for his actions. "The defendant's conduct since the time of the incident establishes that he has shown little genuine remorse for anything other than how this incident may affect his career," Kavanaugh wrote.
"If any other individual without fame, power and the wealth of this defendant, brought four firearms into the District for the purpose of a similar confrontation," the prosecutor wrote, "the government would seek their incarceration and the court would almost certainly give it."
Arenas pleaded guilty on Jan. 15 in D.C. Superior Court to a felony count of carrying a pistol without a license. As part of a plea deal, prosecutors agreed not to ask for more than six months in jail. He has been free pending sentencing.
Superior Court Judge Robert E. Morin is not bound by the plea agreement -- a fact he emphasized in court in January -- and could sentence Arenas to anywhere from probation to a maximum five years in jail. The former all-star was released after agreeing to surrender his passport and not possess any handguns.
The charges stem from the now-infamous incident in the Wizards' locker room at Verizon Center on Dec. 21. At the hearing in January, Assistant U.S. Attorney Chris Kavanaugh filled in some of the details of the confrontation between Arenas and teammate Javaris Crittenton, without mentioning Crittenton by name.
Some related posts on the Arenas case and other celebrity gun possession cases:
Monday, March 15, 2010
Guns don't kill people, people kill people ... after cops sell the gunsThe cheeky title of this post is inspired by this new story reporting on the backstory of two guns used in two recent high-profile shootings. The news account is headlined "Memphis police, Shelby sheriff's office sold guns used in high-profile shootings," and here is how it begins:
Two guns used in high-profile shootings at the Pentagon and a Las Vegas courthouse both came from the police and court system of Memphis.
Law enforcement officials told The Associated Press that one of the weapons in the Pentagon attack was seized by Memphis police from a convicted felon in a 2005 traffic stop and later traded to a gun dealer. And they said the shotgun used in the Jan. 4 courthouse shooting in Las Vegas was sold by a judge's order and the proceeds were given to the Shelby County Sheriff's Office.
In both cases, the weapons first went to licensed gun dealers but later came into the hands of men who were legally barred from possessing them -- one a convicted felon, the other mentally ill.
The use of guns that once were in police custody and then involved in attacks on police officers highlights a little-known divide in gun policy in the United States. While some cities and states destroy guns gathered in criminal probes, others sell or trade the weapons to get other guns or buy equipment.
In fact, on March 4, the day of the Pentagon shooting, Tennessee Gov. Phil Bredesen signed legislation removing the option of destroying confiscated guns, unless they are unsafe or don't work, and directing that the proceeds of such court-ordered gun sales go to law enforcement instead of a city or county's general fund.