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January 9, 2008

Rapid appeal for victims' rights comes before Tenth Circuit

As detailed in this prior post, last week a federal district court rejected a claim, based on the Crime Victims' Rights Act (CVRA), made by the parents of a woman killed in a shooting spree that they be deemed victims of the crime of a defendant who illegally sold the handgun used by another to kill their daughter.  The parents seek victim status in order to be able to speak at the sentencing of the gun sale defendant and so that they can seek restitution from this defendant.  (Notably, the actual shooter was killed during his rampage, and the illegal gun sale took place quite some time before the shooting.)

Notably, the CVRA has specific provisions authorizing an immediate appeal (technically in the form of a petition for a writ of mandamus) and requiring an immediate ruling on these kinds of disputes over victims' rights.  Thus, as this new Salt Lake Tribune article details, the parents have now asked the Tenth Circuit "to declare their daughter a victim in a crime that took place months before her death — the illegal sale of a handgun to the shooter."

Intriguingly, former-judge, now-professor Paul Cassell is representing the parents in the Tenth Circuit, and he is arguing that the district judge (his former colleague) erred when concluding that the connection between the criminal sale of the firearm and the shooting was too attenuated to designate the daughter as a victim of the gun sale crime under the CVRA.  The petition to the Tenth Circuit (which can be accessed here) makes a number of interesting points about both the CVRA and legal causation principles.  Indeed, because this case turns principally on causation issues, the forthcoming ruling from the Tenth Circuit should be of great interest not only to victims' rights advocates, but also anyone interested in bringing tort suits against gun manufacturers and gun sellers from harms resulting from their guns.

Among the many fun aspects of this litigation is how quickly we will get a ruling from the Tenth Circuit.  A provision of the CVRA, 18 U.S.C. § 3771(d)(3), the Tenth Circuit must rule in this matter within 72 hours.  That provision also requires that, if relief is denied to the victim, the "reasons for the denial shall be clearly stated on the record in a written opinion" (although it is unclear whether this written opinion has to be handed down within the 72-hour period for a circuit ruling).

Because the CVRA is such a notable and distinctive piece of legislation, federal court and legislation gurus should also be very interested in this case.  For example, here are just a few late-night structural questions that came to mind as gave pondered this speedy litigation:

  1. Does Congress clearly have the power to demand that a circuit court issue a decision within 72 hours?  Does the SG's office have an obligation (or even a right) to raise this concern?
  2. Are the "rapid return" provisions of the CVRA even applicable when disputed legal question is whether a particular person is even covered by the CVRA?  Does the SG's office have an obligation (or even a right) to raise this concern?
  3. If a Tenth Circuit panel denies relief and en banc review and/or cert review is sought, should courts continue to feel an obligation to "fast-track" this litigation?
  4. Why haven't these issues come up a lot more in the 3+ years since the CVRA's enactment?

January 9, 2008 at 03:01 AM | Permalink


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I hereby proclaim, without any citation or caselaw (too lazy to research it at 3am), that it is a violation of separation of powers for Congress to tell the judicial branch it has to rule on a particular issue within a particular timeframe (especially one such as short as 72 hours). Congress could put "timeframe" provisions in constitutional savings clauses in every law saying that any decision regarding the constitutionality of the law must be decided within 120 seconds from the time the case is submitted (at trial and on appeal). A (forced) hasty decision is more likely to not change the status quo, and thus uphold the challenged law. Clearly unconstitutional.

I know that being a victim is the ultimate status in modern day America, and that people will do anything to prove they are victims of something or someone. That courts now sanction this as "official victim status" is horrendous. I've given my 2 cents on "victim's rights" here so I won't rehash my disgust, but suffice it to say I think this is utterly asinine legislation.

Posted by: bruce | Jan 9, 2008 4:14:12 AM

1. Congress can set filing deadlines for litigants,(thus reducing the ability of the parties to give the court as much information as it thinks it might "need" to decide a matter), it can place limits on what evidence is admissible at trial and for what purpose... it can place restrictions on who the courts can hire hire as staff, who they can designate as chief judge, and how much money they're allotted. I don't see why they can't direct the courts to hurry up and rule. Cases like Robertson v. Seattle Audubon Soc'y (US 1992) and Miller v. French (US 2000) don't seem applicable.

It seems relevant, also, that Congress is creating a right here instead of setting forth a procedure for enforcing a right guaranteed by the Constitution. If Congress directed the courts to decide habeas appeals within 72 hours, regardless of whether the lower court granted or denied relief, that might be problematic. Here, however, Congress has created a right with a limited review process that might actually benefit the person holding the right most of the time. Congress could probably have done this through an agency if it wanted to.

The interesting question is what happens if the court of appeals doesn't rule within 72 hours.

I doubt the SG has an obligation to raise the concern in no. 1. Generally, the SG defends the constitutionality of statutes or refuses to enforce them.

2-4. I don't know. Nothing to add there.

Posted by: | Jan 9, 2008 5:09:38 AM

Whatever it takes to keep the Victims' Rights Industry in business.

Posted by: S.cotus | Jan 9, 2008 9:49:55 AM

The idea that a seller is responsible for every subsequent act of the buyer -- no matter how distant in the future -- is ridiculous.

Posted by: defense attorney | Jan 9, 2008 11:21:29 AM

Straw men are fun, eh defense attorney? In fact, most if not all gun control advocates do not argue that a seller is responsible for every subsequent act of each and every buyer. Their argument is the far more reasonable one that, when normal principles of tort law are applied, sellers should be held responsible for *some* acts of *some* buyers.

Posted by: Chris | Jan 9, 2008 12:09:52 PM

"most if not all gun control advocates do not argue that a seller is responsible for every subsequent act of each and every buyer."

I really have never heard such an absolutist position. Instead, most of them argue for a traditional tort law approach.

Posted by: S.cotus | Jan 9, 2008 12:26:31 PM

What straw man? I was not responding to the arguments made by "most if not all gun control advocates" in tort cases; I was responding to the arguments made in this petition in a criminal case (I am an advocate of gun control, as a matter of act). Indeed, if the buyer had used the handgun in the near future to commit the crime that the seller thought might occur (specifically, rob a bank), the sellers could be responsible under general criminal law as accessories or aiders and abettors of the criminal act, and then there is no question but that the Antrobuses daughter would be a victim of this defendant's crime. However, in this case, the seller is not implicated in being involved in the actual rampage. I agree with the district judge in this case; linking the two incidents without additional involvement by the seller is too remote. Additionally, it is clear that the judge is fully aware of the consequences of this gun sale and thus the Antrobuses have gotten all the relevant facts before him. They also have an advocate in the form of the AUSA. All that is left for them to do is make an emotional plea before the judge imposes based on the 3553(a) factors and the guidelines. In my experience, federal judges are rarely swayed by emotional pleas at the hearing. They generally impose the sentence they decided upon based upon the PSR and pleadings before the hearing.

Posted by: defense attorney | Jan 9, 2008 12:36:56 PM

“In my experience, federal judges are rarely swayed by emotional pleas at the hearing.“

This is why I have such little respect for the Victims’ Rights Industry. They know this.

But, they are convincing people that they have a god-given right to cry in court, and their crying will result in more misery for the defendant than the law would otherwise provide.

Posted by: S.cotus | Jan 9, 2008 1:13:30 PM

But, they are convincing people that they have a god-given right to cry in court, and their crying will result in more misery for the defendant than the law would otherwise provide

The Supreme Court has already given defendants a constitutional right to cry in court, so why not the victims too?

Dahlia Lithwick had a good article about the emote-a-thon phase of capital cases a few years back. http://www.slate.com/id/2110567/

Posted by: | Jan 9, 2008 2:11:48 PM

Oh, so let me get this straight. A defendant’s ability to participate in his own trial, pursuant to the 5th and 6th amendment which protect individuals against deprivation of liberty by the state without certain kinds of processes is akin to some right of “victims” to say whatever they want in court.

Posted by: S.cotus | Jan 9, 2008 2:23:35 PM

No, that's not it.

Posted by: | Jan 9, 2008 4:36:51 PM

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