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July 3, 2010

Should local Wisconsin DA be lauded or lambasted for his broad reading of Heller and McDonald?

Thanks to this post by Eugene Volokh, I see that at least one law enforcement official thinks that Heller and McDonald should be interpretted quite broadly.  Here are snippets from this press release issued last week issued by the DA of Wisconsin's Jackson County:

Yesterday, ... the [Supreme] Court declared that the right to keep and bear arms is a fundamental right, and that self-defense is at the core of the freedoms protected by the amendment.

This Supreme Court ruling is binding on all states and local governments, and immediately renders some of Wisconsin’s current laws unconstitutional. Therefore, in keeping with my oath to uphold and defend the Constitution, I hereby declare that this office will no longer accept law enforcement referrals for violations of the following statutes:

  • Section 167.31, prohibiting uncased or loaded firearms in vehicles;
  • Section 941.23, prohibiting the carrying of concealed weapons, including firearms;
  • Section 941.235, prohibiting the possession of firearms in public buildings;
  • Section 941.237, prohibiting the possession of firearms in establishments where alcohol may be sold or served; and,
  • Section 941.24, prohibiting the possession of knives that open with a button, or by gravity, or thrust, or movement.

All of these statutes constitute unjustifiable infringements on the fundamental right of every law-abiding American to arm themselves for self-defense and the defense of their loved ones, co-workers, homes and communities. This change also invalidates Jackson County Ordinance Sections 9.01 (firearms in public buildings) and 9.29 (CCW)....

As with the other fundamental rights, such as the freedom of speech, of religion, of association, or of security in our homes, persons, and effects, government limitations on fundamental rights are lawful only in the rare case that the state can show a compelling governmental need that can be accomplished only by enacting a narrowly-tailored restriction, in terms of time, place and manner.  Clearly, a blanket prohibition against carrying your loaded firearm in your personal vehicle does not pass that test....

The fact is, criminals don’t pay attention to gun laws, only we good folks do.  After 15 years of criminal law practice, I can state positively that when criminals resolve to harm someone, no law will stop them. These so-called “public safety” laws only put decent law-abiding citizens at a dangerous disadvantage when it comes to their personal safety, and I for one am glad that this decades-long era of defective thinking on gun issues is over.

I will watch for the legislature to make needed corrections in these areas. In the meantime, while I am happy to declare that we will follow the Supreme Court’s ruling, I want to emphasize that with fundamental rights come grave responsibilities, and I will continue to vigorously enforce the laws against unlawfully using firearms, such as the prohibition against felons being armed; going armed while intoxicated; using a firearm to commit a crime; and endangering safety by negligent handling of a weapon, to name just a few.

In his post on this press release, Eugene Volokh adds these comments:

This strikes me as an overreading of McDonald and Heller, which made clear (whether or not correctly) that concealed carry bans and bans on carrying into public buildings are constitutional. But a D.A. is entitled, given his prosecutorial discretion, to refuse to enforce laws that he believes to be unconstitutional, even if the courts think the laws are constitutional.

As the title to mt post indicates, I am very interested in reader reactions to the express statement by a local DA saying he will, on questionable constitutional grounds, refuse to enfore a duly enacted state law.  Do folks think this is an appropriate way to respect fundamental right or a dangerous example of an executive official taking too much of the law into his own hands?

July 3, 2010 at 06:09 PM | Permalink


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Is the DA running for reelection this fall?

This is way over the top and strikes me more like political pandering than principled adherence to the law.

I also think Eugene Volokh overstates the power of a DA to substitute his judgment for a court's judgment. That is not using his discretion. He is deciding, pretending to use his discretion, to not to use his discretion, which, in my opinion, is unconstitutional.

Posted by: bruce cunningham | Jul 3, 2010 7:54:24 PM

bruce cunningham --

Are you similarly critical of the San Fransisco DA who refuses to seek the death penalty in any case whatever despite the fact of its approval by the California legislature, the California courts and the US Supreme Court?

Is that "political pandering" to an especially liberal constutuency?

BTW, while the court in an individual case may decide whether a particular prosecution is to be dismissed, it has no authority under the Constitution to order that a particular charge or a particular class of charges BE BROUGHT. Charging decisions are exclusively the province of the executive.

If this Wisconsin DA is over the top, that is a judgment for the voters of his jurisdiction, not for the courts and not for the bar.

Posted by: Bill Otis | Jul 4, 2010 12:47:45 AM

Jackson County Wisconsin is a mostly rural county with a population of about 18,000. The DA servers a two year term and election are in even numbered years. A reasonable supposition is that the pro-gun vote is very important in Jackson County.

Posted by: John Neff | Jul 4, 2010 7:38:07 AM

Refusal to enforce laws that have only the most tenuous relationship to a concrete victim can be nothing but a good thing. I also suspect the named statutes don't come up for enforcement in Jackson county very often.

From what I've read WI is (for the moment) an interesting case where pretty much the entire political range of the gun debate holds sway depending on where in the state you go. And just like other places some local officials are not meekly accepting the new reality that firearms are not by themselves wicked objects with unbounded capacity for evil.

Posted by: Soronel Haetir | Jul 4, 2010 10:24:56 AM

Yes, Bill. I think that it is improper for the San Francisco DA to have a blanket policy that under no circumstances would his office ever prosecute a case capitally.

I think the appropriate thing for the San Francisco DA to do is to refer any murder case,in which there is a possible aggravating factor which could make the case potentially capital, to the special prosecutions team of the Attorney General's office or the Conference of District Attorneys.

If either of those two entities, after a thorough investigation, reach the conclusion that the case should not be prosecuted capitally, then the DA can prosecute the case with death off the table. However, if the opinion is reached that the case would be appropriate for a capital trial, then I think the DA should disqualify himself and his assistants from participating in the trial and the prosecution should be handled by the AG's office or a prosecutor brought in from another county or, if California has such a process, from a special prosecutor attached to the Conference of District Attorneys.

I am in favor of the abolition of the death penalty, not the abolition of the Rule of Law.


Posted by: bruce cunningham | Jul 4, 2010 8:06:36 PM

bruce --

Thank you for your answer. One of the advantages of working for the government, I found, was that you don't have to bring cases you feel strongly against. In one of my early cases at DOJ, there was a deportation proceeding against a man in this 20's. He had been born in the Ukraine (or something like that, I can't quite remember) and came with his parents to the USA when he was two. He was never naturalized, and, like many people in their 20's at that time, had committed a small-time marijuana offense.

For this the feds proposed to deport him, and were well along the path do doing so.

It seemed to me that sending him "back" to the Ukraine was just wildly disporportionate to the offense. He was no more truly a Ukrainian than I am. It would be like sending someone to Neptune for having some joints. So I handwrote a memo to my superiors, including the AG, that the whole thing was nuts, and that although we had the legal power to do it, we should call it off.

I was 27 at the time.

You can imagine how much weight I carried.

To return to the present episode: I think this DA must be an ideological NRA person, as John Neff suggests. I would probably agree with him most of the time on gun rights. But ideology and law are not a good mix. Not for nothing did I become a one-case-at-a-time prosecutor. If your mind is set in advance, you're going to miss important parts of what you're dealing with. Every case is different.

That said, while your suggestion about the San Fransisco DA is balanced and sensible (and creative), I have a different take on it. She is an elected official. If she explicitly campaigned that she would never seek the DP and got elected on that platform, then she is justified in never seeking it. The prosecutor alone has charging power. If her stance is wrong, which in my view it certainly is, the people, in the next election, have the means to correct it. Self-rule implies the freedom to blunder. And as last night's fireworks remind us, self-rule is what it's all about.

Posted by: Bill Otis | Jul 5, 2010 9:50:23 AM

Bill, I'll be interested in the opinion of others on this, because it seems to me you are advocating for some sort of institutionalized civil disobedience. What was your opinion about Thurgood Marshall's position, in defiance to all notions of stare decisis, that he would never vote to uphold a death sentence?

Even Justice Breyer is beginning to make noise that Apprendi is the law and he might as well get used to it. The first line in Scalia's opinion in McDonald was "Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights because it is both long established and narrowly limited."

I see a big difference between stingily exercising discretion and having a firm policy of simply not exercising discretion. The first is within a prosecutor's power, but I think the second is a violation of separation of powers. In NC a person convicted of driving while impaired is eligible under the law to receive a permit for driving limited to work purposes and limited other things. The legislature gave a Judge discretion whether to allow such a permit. About twenty years ago a judge had a policy that he would never grant a limited permit, again I suspect more political pandering to look tough on DWIs. The Court of Appeals reversed on separation of powers grounds an appeal by a driver who had been denied a permit.

I believe an elected public official takes an oath to uphold the Constitution and if the Supreme Court decides that the death penalty is constitutional then an individual prosecutor has no business saying that the death penalty is abolished for my county. This whole issue seems a little like Yick Wo v Hopkins to me, in which the laws against wooden laundries were only enforced against Chinese laundries. I think this was San Francisco, wasn't it? The Court said there was an equal protection violation.

One of the many reasons I am opposed to capital punishment is because, in my opinion, who gets executed doesn't depend on what that person did. It depends on how good his lawyer was, the status of the victim , and in which county he did it. Seems to me you are reinforcing my opinion. Why wouldn't a capital defendant in Los Angeles have an equal protection claim that he shouldn't be executed if a defendant doing the same thing in San Francisco would not? Remember Bush v Gore recognized an equal protection component to a county by county difference in process.


Posted by: bruce cunningham | Jul 5, 2010 12:02:01 PM

bruce --

"What was your opinion about Thurgood Marshall's position, in defiance to all notions of stare decisis, that he would never vote to uphold a death sentence?"

That it was undisciplined and disrespectful of the law, which had settled that the DP is constitutional.

I believe there is a difference between evaluating a judge's performance, on the one hand, and a prosecutor's. Marshall was unelected and there for life, so there was no check on how he voted except his own discipline and modesty. This is why these qualities are so very important in a judge. The Wisconsin and SF prosecutors, by contrast, ARE elected, so the people can fire them in fairly short order. Elections are about policy choices. It seems to me that DA Candidate A could say, "Marijuana laws cost more to enforce than they're worth, so elect me and that will be the end of it." Candidate B could say, "Marijuana is a gateway drug and the path to trouble of all kinds, so elect me and we'll step up enforcement."

Let the people decide.

The North Carolina case you note was correctly decided. Once the legislature decides that a JUDGE has discretion to do X, the judge cannot say, "I will never do X," because that is defiance of the law. "Discretion" means "discretion," not "one size fits all." And, equally important, judges are not there to abide by policy. The are there to abide by the law.

"Why wouldn't a capital defendant in Los Angeles have an equal protection claim that he shouldn't be executed if a defendant doing the same thing in San Francisco would not?"

Because irrational leniency in an unrelated case is not THE KIND of inequality that invokes the Equal Protection Clause. Otherwise, the fact that Michigan and maybe a dozen other states have no death penalty would long ago have resulted in Equal Protection-based abolition in the rest of the country. There are many jurisdictions in the USA in which the DP is either a de jure or a de facto impossibility, and many others in which it is not, and this has been the case for years. But no one has thought, and to my knowledge no court has held, that this fact renders the DP in the harsher jurisdiction unconstitutional.

The reason (or one of the reasons) for this is clear: Otherwise, criminal law in every jurisdiction would be controlled by the criminal law in the most lenient jurisdiction -- sort of the least common denominator writ large. There is no version of the Constituiton that has been, or should be, adopted by the courts that requires such an outcome. Even Chairman Mao was ready to let a thousand flowers bloom.

Posted by: Bill Otis | Jul 5, 2010 12:42:05 PM

Bill, I agree that no death penalty in Michigan doesn't mean California has to abolish the DP in California. I'm talking about comparing two counties within one state, which is covered by the same law.

In San Francisco, you are saying that a prosecutor can abolish the DP for the time he is in office. We're not talking about "irrational leniency in an unrelated case." We're talking about ALL cases. I just don't think an individual prosecutor can trump the legislature on whether the death penalty exists. He can look at cases one at a time and say in each one, "I choose not to prosecute the case capitally in this particular case for the following reasons." But I don't think he can say, "I'm not going to prosecute any case, no matter what, capitally. I am not going to even consider it because in my opinion the death penalty is unconstitutional." That is what the Wisconsin DA has done.

I must confess I feel a bit strange for me to argue for more capital trials and you to argue that a prosecutor can simply refuse to try any, but anyway thank you for the stimulating discussion.


Posted by: bruce cunningham | Jul 5, 2010 2:20:42 PM

bruce --

And thank you as well. Enjoy the rest of the holiday.

P.S. I am a Chapel Hill grad, '68.

Posted by: Bill Otis | Jul 5, 2010 5:29:16 PM

Chapel Hill, 1969.

Posted by: bruce cunningham | Jul 5, 2010 7:50:37 PM

The only problem I see is the firearms in a public building section. The Court in both said such laws are constitutional.

Posted by: Federale | Jul 6, 2010 5:45:47 PM

The facts of this situation might very well create a controversy suitable for resolution in a declaratory judgment action, or via a state attorney general's opinion.

The courts can't force prosecutors to bring charges. But, the courts do have the right to authoritatively and bindingly state what the law is. A private litigant ought to be able to bring a declaratory judgment action to deprive the prosecutor of his justification and talking point, even if no one can actually force a case to be brought.

Posted by: ohwilleke | Jul 9, 2010 4:36:59 PM

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