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June 30, 2008

Prosecutorial headaches after Heller

Before the ink was dry on the Supreme Court's landmark Second Amendment ruling in Heller, prognosticators, pundits and politicians were predicting what types of gun control laws and regulations were now constitutionally suspect.  But I keep thinking about how the Court's forceful embrace of an individual "right of law-abiding, responsible citizens to use arms in defense of hearth and home" could create huge headaches for federal and state prosecutors in the day-to-day operation of the criminal justice system.

In my view, a serious commitment to the concepts and principles developed by the Court in Heller could impact many aspects of the day-to-day operation of modern criminal justice systems.  As I have stressed before, felon-in-possession prohibitions and severe federal sentences might be subject to new attacks in the wake of Heller.  But, beyond these broad issues, I am starting to wonder (and worry?) if many criminal procedure doctrines need to be reexamined after Heller.  As the Second Amendment dust begins to settle, prosecutors may get headaches if (and when?) defense attorneys load up with the new litigation ammunition Heller presents.

Consider, for example, traditional search and seizure law.  Police frequently make allegations about firearms to obtain or broaden search warrants for a home.  And firearms will often be seized by police when discovered during the investigating of other crimes.  But if firearm possession in the hearth and home is constitutionally protected, these common search/seizure techniques may infringe or unduly burden the exercise of Second Amendment rights. 

Consider also how Heller could impact plea practices, especially if broad felon-in-possession laws are upheld.  As plea deals are put together, prosecutors and defense attorneys should ensure a defendant knows he will be losing Second Amendment rights permanently by pleading guilty to a felony.  In standard plea colloquies, which must ensure an understanding of all rights being waived, perhaps should inform defendants that a felon conviction will mean the end of all gun rights.

Turning to trials, will defendants accused of possessing firearms in connection with drug dealing now be able to demand that the jury be given a Second Amendment instruction?  What is to become of what might be called "mixed motive" cases in which an admitted petty street drug dealer who says he kept guns in his home to defend his hearth and home from cranky customers who come to his home looking for fix.

I could go on and on, but here is the basic point: clever defense attorneys can (and will?) use the Court's broad opinion in Heller to raise all sort of new questions about all sorts of seemingly settled criminal justice doctrines involving firearms.  Though the courts may not often (or ever?) answer these questions in ways favorable to defendants, prosecutors are likely to find Heller to be a big headache until there are conclusive rulings on all these diverse fronts.

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June 30, 2008 at 01:05 PM | Permalink


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I'll be keeping my eye on the 5th circuit for second admendment appeals but I think second admendment aruguments have been forclosed in this court where felon in possession was the issue. I don't know if Heller will provide sufficient grounds for an appeal on a matter that is already foreclosed.

Posted by: Paul | Jun 30, 2008 1:40:53 PM

Doug, I mentioned a concept several months ago about Possession of Firearm by Felon charges but will repeat it in the wake of Heller and try to put in context why there is so much litigation about Felon in Possession charges.

In my view, the "charge" of Possession of Firearm by a Felon does not describe a crime, because an essential element is the existence of a prior conviction. Two hundred years of jurisprudence says recidivist offenses pass double jeopardy muster because they are not crimes, they are sentence enhancers.

So, what is it if it's not a crime? I think it should properly be viewed as analogous to contempt of court because the def did something he was told by the judge at his original conviction , implicitly or explicitly, not to do. Possess a gun. The def can be punished but the Sixth Amend jury trial right does not attach since it is not a "criminal prosecution."

Why would viewing Felon in Possession charges as not a crime cut down significantly on litigation? Because the enormous sentences imposed for the charge are usually associated with Armed Career Criminal or Habitual Felon enhancements. If the charge were no longer viewed as a crime, it could not trigger other sentence enhancers and folks would still be punished but not so severely.

Here is the bottom line. Possession of Firearm by Felon charges are to sentencing today as income tax evasion charges were to sentencing in the era of Al Capone and the mobs. It is often used by zealous prosecutors who don't have enough evidence to really nail someone. So, they do a search, find a gun and then , like dominoes, start stacking up charges to get ten or fifteen years in jail.

No one has yet given me a good explanation why the charge does not violate double jeopardy since its existence depends on using a prior conviction as an element of a substantive crime.

bruce cunningham

Posted by: | Jun 30, 2008 2:48:09 PM

I agree that there will be all sorts of interesting litigation in Heller's wake. However, I don't think the right to a warning about loss of Second Amendment rights as part of the plea colloquy is a likely winning argument in the near future, at least not as a constitutional matter. Unlike waiver of the rights to a jury trial and witness confrontation and against self-incrimination, as well any "direct" (penal) consequence, loss of gun rights is going to fall into the "collateral consequences" group, where many severe consequences reside. If there's no right to a warning about automatic deportation for, say, a misdemeanor conviction or to the possibility of lifetime, post-sentence involuntary commitment as a "sexually violent predator" for sex offense convictions, both of which implicate constitutional liberty losses, I don't see how the gun warning would be any different. This is not to say that I agree with the stamp of constitutional approval for silence on these consequences, which certainly matter a lot to many defendants making plea decisions. It's just the sorry state of where things stand, now at least, on a defendant's right to information in the plea process.
Jenny Roberts, Syracuse University College of Law

Posted by: Jenny Roberts | Jul 2, 2008 8:06:08 AM

You write: "right of law-abiding, responsible citizens to use arms in defense of hearth and home" could create huge headaches for federal and state prosecutors in the day-to-day operation of the criminal justice system"

Why would a law abiding citizen even be in the court system? If he is law abiding then he is not in the courts, but at home. This supreme court case does not affect felons, nor does the law affect existing felonly issues as they have been clearly in place for years. What this DOES do is even the playing field. Criminals are now not the only ones that have guns. INstead of hearing a frightening 911 call where the woman is raped, you will start to hear 911 calls where the criminal didn't make it into the bedroom. ACLU might be interested in tryuing to preseucte the unlucky victim for defending him/herself - but the true benefits will be for the justice system (less prosecutions, less crime) and the homeowner/renter that is now alive instead of dead, beaten, or raped.

Posted by: Matthew | Jul 29, 2008 12:25:58 AM

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