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March 6, 2012

ACCA en banc denial splits Fourth Circuit 7-7 and produces sharp opinions

A helpful reader alerted me to the series of notable opinion emerging from the Fourth Circuit today to accompany this order denying rehearing en banc in a case involving application of the Armed Career Criminal Act. The first two paragraphs of a dissent by Judge Davis provides a window into the strong feelings that this case has obviously engendered:

Injustice comes in many forms.  It is insidious.  It chokes persons and their communities alike. It besmirches legislators, prosecutors, and yes, judges, alike.  It undermines public confidence in government and its institutions.  It mocks our national commitment to the ideal of evenhandedness and fairness.  And, when it is the product of an unwarranted and inexplicable deviation from settled standards, it holds hands with iniquity.

I am persuaded that this case presents a profound exemplar of injustice, and I deeply regret the court’s refusal to rehear this case en banc.  I am honored to join in the elegant dissenting opinion of my good colleague, Judge Motz.  Judge Motz conclusively demonstrates that the panel majority in this case has deviated from Supreme Court precedent and thereby inflicted a grievous harm on Appellant Foster and, frankly, on the rule of law.  I offer this additional critique of the panel majority’s handiwork as further illustration of how injustice so infects the outcome of this proceeding.

Obviously, a number of Fourth Circuit judges do not see this matter the same way as Judge Davis, and Judge Wilkinson provides this different perspective in the last two paragraphs of his concurrence in the denial of en banc review:

I recognize that interpreting the ACCA is not always easily accomplished, and I sympathize with the many jurists who have rightly pointed out its imprecise phraseology and interpretive difficulty.  But such challenges come with the territory, and we lack the authority to declare war on statutes we may find distasteful. The dissenters decry the result here as "tragic."  See post at 13 (Motz, J.).  I certainly respect their right to hold this view, but it has no bearing on the legal question before us.  Theirs is a policy disagreement with the ACCA to be taken up with Congress.  If Congress wishes to permit felons to carry certain firearms or to disqualify certain predicate offenses after the passage of time, it can surely do so, but it has created no such exemptions applicable to this case.  Congress had a legitimate purpose in mind when it sought to protect the public from violent acts committed by those with a violent criminal history.  The statute has an awkward name and the means chosen to pursue its purpose have assuredly created headaches for this fine court and others, but that does not confer on us a warrant — constitutional or otherwise — to eviscerate its aims and displace with our own will the democratic legitimacy accorded by our founding document to others.

There are worse fates for a judicial decision than to have it align with the practical virtues of logic and common sense.  The term "objective reasonableness" is much in vogue these days, and properly so. See, e.g., Davis v. United States, 131 S. Ct. 2419 (2011) (holding that a need "to prevent Fourth Amendment law from becoming ossified," id. at 2433, cannot overcome objectively reasonable reliance on the law in force at the time of a search).  Objective reasonableness presupposes that courts do not allow the occasional medieval tendencies present in all professions to separate us so thoroughly from good logic that our decisions drive citizens to rubbing their eyes and scratching their heads. If one were to inquire of an objectively reasonable person on the street whether something named the Sunrise-Sunset Restaurant was a building or structure as opposed to a river craft or railroad car, the response would be "Of course. Why do you ask?"  We ask because the generic approach of modified categorical analysis requires us to, and the Supreme Court has commended to us common sense in answering.  That is precisely what the panel majority has done, and it is why I am pleased to concur in the denial of the petition for rehearing en banc.

March 6, 2012 at 04:53 PM | Permalink


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I agree with Scalia (I think it was Scalia): ACCA is void for vagueness. And BTW, St. Louis has (or at least had) a floating McDonald's. Just sayin'

Posted by: Mayor McCheese | Mar 6, 2012 8:42:07 PM

Tale of the (Political) Tape

Judge Rehear President Party
Judge Motz Y Clinton D
Judge King Y Clinton D
Judge Gregory Y Clinton/Bush41* R,D
Judge Davis Y Obama D
Judge Keenan Y Obama D
Judge Wynn Y Obama D
Judge Floyd Y Obama D
Chief Traxler N Clinton D
Judge Wilkinson N Reagan R
Judge Niemeyer N Bush 41 R
Judge Shedd N Bush 43 R
Judge Duncan N Bush 41 R
Judge Agee N Bush 41 R
Judge Diaz N Obama D

*Clinton recess appointment, Bush re-appointed and confirmed

All republicans vote not to hear
Diaz (Obama) and Traxler (Clinton) join the GOP.
All other democrats vote to hear

Posted by: Eric Knight | Mar 6, 2012 10:25:00 PM

I took a quick look at the panel decision. There doesn't seem to be any rhyme or reason to why this guy was chosen for prosecution? I don't think anyone thinks him a danger--so it's probably a gigantic waste of resources. If I am mistaken on this, someone please correct me. I'd like to think that US Attorneys don't waste lives and time on draconian prosecutions of people who don't appear to be a threat to anyone except deer.

I don't take a back seat to anyone when it comes to advocating harsh punishments for those who commit serious crimes. But in my mind, there's a predicate to draconian punishments, and that's a crime worthy of serious punishment. I support the policies behind the ACCA. Dangerous criminals should not get to carry guns (at least in public). And career criminals who have guns need to be put away--but this guy doesn't seem to meet anyone's idea of a career criminal. So why did the AUSA decide to throw the book at him? I'd like to know. Because we can isn't a good enough reason. A prison bed is a scarce resource, as is court time, and, as the dissent points out, public opinion. The business of keeping the public safe is a deadly serious one--and I am not sure that locking away this guy for 15 years advances the ball in the slightest, and, in my view, it probably harms the cause. We give prosecutors awesome power, and part of the deal is that they use it wisely. When they fail to do so, they sow the seeds for reducing their power. And that's something I truly do not want.

Perhaps I don't know all the facts here, and if I don't, I hope someone will enlighten me. But if this was some guy who lived a law-abiding life and is going to jail for a hunting rifle for 15 years, I think the AUSA who prosecuted this case ought to be ashamed.

Posted by: federalist | Mar 6, 2012 10:33:31 PM

"That is precisely what the panel majority has done, and it is why I am pleased to concur in the denial of the petition for rehearing en banc."

I forgot to comment on that. I despise judicial activism, and it seems to me that the panel majority has the better of the argument, by far. But I would be far from "pleased" to concur in the denial of the petition. While it is obvious that this was a bit of a tiff in chambers, Judge Wilkinson probably should have refrained from that sort of tone. I certainly wouldn't be "pleased" to have to do this, were I a judge. Duty is duty etc. etc. Sometimes it is unpleasant. That would, from all appearances, seem to make Wilkinson's tone less than becoming.

Posted by: federalist | Mar 6, 2012 10:41:36 PM

"Because we can isn't a good enough reason. A prison bed is a scarce resource, as is court time"??

Posted by: Pandora Sale | Mar 7, 2012 1:55:12 AM

Mayor McCheese,

Well, the residual clause perhaps. I don't think anyone argues that the list of enumerated offenses has problems. The list might have problems for determining whether or not someone has committed the offense, but if you limit it to the few named items I don't think that problem is insurmountable the way the residual clause is.

Posted by: Soronel Haetir | Mar 7, 2012 10:55:09 AM

@federalist: You make a good point, but prosecutorial discretion in choosing who out of a potential group of lawbreakers is charged in federal court is effectively absolute. Unless a particular prosecutor admits to unlawful discrimination there is no way to get a case dismissed. Defense counsel cannot argue (successfully anyway) that a prosecution is a waste of the court's time or a waste of resources.
In my state, North Carolina, felon in possession is a relatively common charge in state court. Many, if not most, convicted in state court get probation. Nearly all prosecuted in federal court will serve active sentences and ACCA cases will face at least 15 years.
If there should be a limit on what felon in possession cases can be brought in federal court, it will have to be written into the statute.

Posted by: Bryan Gates | Mar 8, 2012 12:20:43 PM

Federalist, it seems to me that in saying that the defendant here "doesn't seem to meet anyone's idea of a career criminal," you are implying that locking this guy up for 15 years is not rationally related to a legitimate government interest. Am I reading you incorrectly?

Posted by: Michael Drake | Mar 9, 2012 4:12:40 PM

I don't think EPC is really available for an as-applied challenge to a criminal law.

Posted by: federalist | Mar 11, 2012 6:54:27 PM

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