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March 20, 2023

With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by those subject to DV orders?

The question in the title of this post is prompted by the interesting news that the feds have now filed a cert petition seeking review of the Fifth Circuit panel ruling in US v. Rahimi (first discussed here). The Rahimi opinion declared unconstitutional 18 USC § 922(g)(8)'s prohibition on gun possession by those subject to certain domestic-violence protective orders.

Notably, the government could have sought en banc review, but decided to seek cert. And within the petition, the government explains that, due to "the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer."  This Hill article provides some details:

The government argued in the petition that the Fifth Circuit “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals,” instead dismissing each historical example on the grounds that it differed from the law “in some way.”

“Although courts interpreting the Second Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the DOJ said. “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

The Justice Department's full cert petition is available at this link.  It should be quite interesting to see if SCOTUS decides to take up the case on an expedited basis even before there is a direct circuit split.  Notably, as discussed in this prior post, the Supreme Court's landmark Bruen decision has already created considerable legal uncertainty for a variety of federal gun control laws.  As suggested before, because numerous lower-court rulings are striking down numerous federal criminal laws, I suspect the Justices will get back to these Second Amendment matters pretty soon.   But "pretty soon" in Supreme Court timelines does not really mean "soon," so I would be eager to hear reader thoughts about when Rahimi or perhaps other cases may end up on the SCOTUS docket.

Some (of many) prior recent related posts:

March 20, 2023 at 08:37 PM | Permalink


Yanking away rights without a conviction . . . . wow.

Posted by: federalist | Mar 21, 2023 9:00:58 AM

Based on a USSC report on FY2021 offenders, federalist, it looks like there may be 1000 or more persons federal sentenced each year of 922(g) offense in which something other than a prior conviction made gun possession illegal according to Congress -- e.g., 922(g)(3) criminalizes gun possession by unlawful drug users; (g)(4) criminalizes possession by persons who have been adjudicated as a “mental defective” or who have been committed to a mental institution; (g)(6) criminalizes possession by persons dishonorably discharged from the Armed Forces; (g)(8) at issue in Rahimi.

So, there are likely tens of thousands of persons who have been convicted for gun possession since Congress criminalized this behavior for a broad array of prohibited persons starting in 1968. Are you suggesting all these convictions have been unconstitutional?

Posted by: Doug B | Mar 21, 2023 10:13:12 AM

Many are. But not the dishonorably discharged . . . . government likely has that power.

And since they ain't putting Hunter Biden in prison, I mean, come on, then many of the drug users are being denied equal protection as applied to the feds by the Fifth Amendment.

Posted by: federalist | Mar 21, 2023 12:46:31 PM

I am sure you know, federalist, that the "properly prosecuted" do not get to claim an EP violation based on the "unproperly unprosecuted." And the medical marijuana folks in Florida are fighting, so far without success, the application of 922(g)(3) to them: https://www.marijuanamoment.net/floridas-new-agriculture-commissioner-declines-to-pursue-medical-marijuana-and-gun-rights-lawsuit-led-by-his-predecessor/

Posted by: Doug B | Mar 21, 2023 1:39:24 PM

Don't forget g(5) restricting the rights of non-citizens to possess a firearm. How do you translate the current immigration law into an eighteenth century equivalent when we actually did have open borders back then?

Posted by: tmm | Mar 21, 2023 4:36:26 PM

There is the ability to assert EP claims with respect to prosecution--it's just very hard to do without a smoking gun, so to speak, and discovery isn't allowed until you have it.

But distinguishing between the son of the VP and being an ordinary person is not a rational basis upon which to based prosecutorial decisions . . . . so there is an EP problem hiding in plain sight. Glad youre super-cool with it.

Posted by: federalist | Mar 21, 2023 5:32:45 PM

To be clear, federalist, are you saying the feds cannot constitutionally prosecute any drug users because they have not prosecuted Hunter Biden for his drug activity? Does that also mean that all federal perjury charges are constitutionally problematic because Bill Clinton was never prosecuted for lying under oath? Does that also mean it is critical for former Prez Trump to be indicted on various allegations simply to ensure other people can be constitutionally prosecuted without an EP prohibition?

Heck, speaking of "smoking guns," Elon Musk has tweeted his possession of a firearm after being seen smoking a controlled substance on Joe Rogan's podcast. Can any and everyone subject to a 922(g)(3) indictment claim an EP violation unless and until Elon Musk is prosecuted?

And does this theory thwart many state capital charges for anyone who killed only one person if/when capital charges are not consistently brought against those who kill more than one person?

I am not sure what you think I am super-cool with, but I am eager to better understand your EP theories as a basis to block criminal enforcement efforts (and to know if you think Armstrong should be reconsidered so that it is easier to develop evidence for these kind of EP claims).

Posted by: Doug B | Mar 21, 2023 6:20:03 PM

I once knew an illegal alien from Honduras who was prosecuted under 922(g)(5), and thought it was b.s. This man lived in a small, rural community in North Carolina for 14 years. He was well known and well liked in his community. He was law abiding and was even a member of the local volunteer fire department. He was pulled over driving his farmer's pickup truck for a minor traffic violation. He actually had a valid North Carolina driver's License, but the officer was suspicious and did some computer checks from the laptop in his patrol car, before determining that the driver was actually an undocumented alien. He was charged for the .22 rifle that he had in the gun rack in his pickup truck, in the read window behind the driver's seat. The rifle was used to shoot squirrels and rabbits. He is hardly a real criminal. This young man was married to an American woman and they had 10 month old twin sons, who she used to bring to the prison visitors' room at FCI - Manchester, Kentucky. After he completed his 10 month sentence, he was deported back to Hondurus, and his wife was left to raise the twin sons alone. As policy, this made no practical sense to me. I thought it was a horrible tragedy.

Posted by: Jim Gormley | Mar 22, 2023 12:03:49 AM

Doug, honestly, I don't know what the answer is. But it's hard to say that there isn't an EP issue with the Hunter stuff.

As for state capital charges, the answer would be no. And the reasons should be obvious--but it is a problem that Hunter is getting treated much better because he is the son of the President. It is shocking that legal academia is cool with this--if this were a Trump kid and the same stuff was happening, good grief.

Posted by: federalist | Mar 22, 2023 9:43:15 AM

In order to take away gun rights, one puff of whatever or occasional use doesn't get it done. I've smoked maybe 4 cigarettes in my life--am I a smoker? Nope.

Posted by: federalist | Mar 22, 2023 9:44:39 AM

I find it quite easy to say there isn't an EP issue with the Hunter stuff, federalist, because I cannot think of a single case in which a poor or non-celebrity defendant (or anyone else for that matter) has ever prevailed on an EP claim because a rich or celebrity defendant (or anyone else for that matter) did not get prosecuted. Can you cite a single case to support your EP claim?

And if you think the legal academy is okay with rich white guys getting better treatment in the CJ system than others, you have not been paying attention. Apparently, you have also not been paying attention to all the state-legal medical marijuana users denied their gun rights due to 922(g)(3).

Posted by: Doug B | Mar 22, 2023 2:01:20 PM

First of all, you're moving the goalposts--med marijuana users use MJ regularly (generally speaking). One snort of a line or puff of a joint doesn't make you a "user" that takes away your gun rights forever.

As for EP, there have been EP challenges of prosecution decisions, and the issue is the ticket to discovery. This does a pretty good job: https://defendermanuals.sog.unc.edu/sites/default/files/pdf/5.3_1.pdf

In any event, Hunter getting to skate because he is a Biden is an EP problem, and it's beyond fascinating that the legal academy isn't pointing this issue out---but, of course, there's partisanship over principles. The Hunter leniency is rank, and it stinks to heaven. At least Claudius could admit it . . . . Your attempt to talk about white guys generally doesn't excuse the academy's silence when it comes to Hunter.

Posted by: federalist | Mar 23, 2023 11:51:40 AM

You link to a discussion of selective prosecution based on race and with some reference to the death penalty, federalist. Are you claiming Hunter has not been prosecuted because he is white and that all people of color prosecuted for drug offenses --- in state and federal courts --- have a viable EP claim that they could and should be raising in conjunction with any and all drug prosecutions? Or is it tax crimes you have in mind? Or it is lying on a gun application? Just trying to understand what you are actually talking about.

More broadly, can you articulate the EP principle or any cases in support of the notion that a prominent kid "getting to skate ... is an EP problem"? What kind of "EP problem" and with what kind of remedy? Do you support making it much easier for people to get discovery in support of (race or non-race-based) EP claims whenever subject to prosecution when they believe others have been "getting to skate"? I can cite you to lots of academic criticism of Armstrong, but it is unclear if that is your gripe because it is unclear what EP principle --- other than your usual partisan sniping --- is driving your Hunter point.

And speaking of partisan sniping, does your EP worry provide a non-partisan justification for DA Bragg (and/or others) indicting former Prez Trump? It is my perception that former Prez Trump (and other former Presidents as well) have been "getting to skate" on a number of possible criminal charges. In order to avoid the "EP problems" that you see, are prosecutors obliged to make extra efforts to bring all viable charges against all prominent potential defendants?

I know you want to see Hunter prosecuted, federalist. But I do not understand what you are claiming about "EP problems" that you see declinations as producing.

(Oh, everyone who unlawfully uses a controlled substance is an "unlawful user of a controlled substance," no? Just attending to the text of the statute suggests any use of a controlled substance makes one a user at the time they are using (though not forever).)

Posted by: Doug B | Mar 23, 2023 12:49:30 PM

OMG--I am being a partisan simply because I bitch about a connected guy like Hunter getting over? Wow. IN any event, as you know EP also has rational basis scrutiny for non-race things, and that easily sweeps up selective prosecution based on a lack of connections.

I don't know what the remedy is . . . .

And the academy's silence on Hunter is deafening.

Posted by: federalist | Mar 23, 2023 1:46:54 PM

federalist says: "as you know EP also has rational basis scrutiny for non-race things, and that easily sweeps up selective prosecution based on a lack of connections."

So you think that anyone (and everyone?) who has a "lack of connections" can claim a constitutional violation (on "rational basis" grounds) for any (and every?) indictment because a prominent child of a politician is not indicted? Here is an article from 2017 highlighting Don Jr. and Ivanka "getting to skate" from charges not brought in the 2010s: https://www.wnycstudios.org/podcasts/anxiety/episodes/how-ivanka-trump-and-donald-trump-jr-avoided-criminal-indictment Did Trump's kids not getting indicted in this instance or elsewhere mean that anyone (and everyone?) who has a "lack of connections" can claim a constitutional violation for any (and every?) indictment since then?

Again, federalist, if you want to argue for Hunter's indictment (on ____? by whom ____?), be my guest. Indeed, I would be eager to hear more about precisely what you think Hunter must be prosecuted for and by whom. But your EP claims seem to get more ridiculous the more that you try to explain them. And that is what makes you "partisan" here -- you are spouting nonsense about the law in an effort to complain about someone who's part of a political family you dislike. Many are calling AG Bragg's work to (perhaps) indict Trump "partisan" for a similar reason, although you seem to be making a constitutional case for Trump's indictment simply to allow anyone anywhere else to ever be constitutionally prosecuted for anything.

Posted by: Doug B | Mar 23, 2023 1:58:56 PM

Ha ha--I've been vague because obviously, as a matter of practicality, you cannot hamstring the entire CJ system over these allegations ("too much justice" to borrow a phrase), and obviously the Trump kids allegations appear serious (although who knows) and there is the unseemly donor connection. And maybe you're comfortable with this sort of thing. I am not. The Hunter Biden skate reeks of partisan justice, and that's a serious serious problem in a society that purports to be one of laws and not men. (And by the way, if you don't know what Hunter should be prosecuted for, then you're ignorant--FARA, lying on a gun purchase application, possession of a firearm while using illegal drugs, tax evasion--to name a few.).

Let's be clear--Hunter getting kid glove treatment is emblematic of a DOJ that is now a partisan operator. And academia is silent. There are EP problems here, and calling them nonsense, shows how in the tank you are.

Posted by: federalist | Mar 23, 2023 3:00:05 PM

federalist, there are lots of things that I am not at all "comfortable with," and yet I do not make up frivolous constitutional claims in order to complain about them. If you are just trying to say that the rich and powerful get a different type of "justice" than does the regular guy, there are plenty of folks in the academy and elsewhere that are sure to agree (myself included).

But complaining about unequal justice and claiming that there are viable Equal Protection Claims under existing constitutional doctrines are far different matters. Lots of defense attorneys and academics would love to assert that any rich white guy seeming to get a break justifies efforts to "hamstring the entire CJ system." But they do not bring such claims because they know they would be laughed out of court (and probably subject to sanctions) if they cited your Hunter claims AND NO CASE LAW OF ANY SORT as a basis to get anything dismissed. Do you disagree that any serious effort to say that any prosecutions would be constitutionally barred or impacted because of Hunter would be deemed frivolous?

Posted by: Doug B | Mar 23, 2023 4:01:16 PM

The obvious favoritism shown to Hunter Biden is a problem, and it is emblematic of a DOJ that has been unleashed in the service of the Democratic Party--this is an intolerable state of affairs. Moreover, varying a prosecutorial response based on national party politics/affiliation is unconstitutional, cf. Yick Wo v. Hopkins.

You completely miss the argument--Equal Protection isn't just about race--it's about government classifications, and political affiliation may be subject to strict scrutiny by the way, but let's assume for a second the standard is "rational basis". What rational basis is there to go easy on Hunter? And recall, Doug, the Miller-el case--they took a memo from 1963 and applied to to an 80s prosecution without ANY regard for whether the individual prosecutors had read it. So look at Hunter, the FBI, having his laptop at the time for about a year, got involved in the election and set up Hunter to be the victim. You have the Comey stuff against Flynn, the laughable treatment of Hillary's server (why, for example, would Cheryl Mills get immunity?) You have the Russia hoax perpetrated by the FBI etc. etc. There are the Strzok texts and the 302 shenanigans. And now they are just going easy on Hunter?

Equal protection is not limited to race, and there is absolutely no reason why an EP claim cannot be raised here. And it's not frivolous, unless you are really arguing that the government can modulate prosecutions based on party politics/affiliation. Are you?

The machinery of law enforcement was put to electoral ends. The academy doesn't care. Says a lot about the academy. You should read "Ball of Collusion" by Andrew McCarthy, no lover of Trump.

Posted by: federalist | Mar 23, 2023 5:13:41 PM

federalist: you share ground with many academics and defense attorneys and others complaining about all sorts of prosecutorial "favoritism" and biases. And many have complained for decades and decades about various DOJ/FBI biases --- eg, in 2007 and 2008, the US House conducted a series of hearings on "Politicization of the Justice Department and Allegations of Selective Prosecution" based on concern of bias AGAINST Democrats. So, what concerns you is nothing new, and it is a sound basis for concern because of our society's justified interest in seeing law applied equally.

But what is new --- and what I keep asking you to cite any cases in support --- is the notion that persons subject to an otherwise lawful criminal prosecution can claim the EP clause of the Constitution bars his/her prosecution because some unrelated other person has allegedly gotten favorable treatment in some other prosecution. Do you have any support for this far-reaching idea? Can you articulate any aspect of its particulars -- eg, is EVERY federal prosecution barred nationwide by the DOJ/FBI bias you claim is evident (and which, I believe, occurred during the Trump years as well as the Biden years); are just prosecutions barred for certain crimes or for certain districts? Can some or all people already in federal prison demand release on this EP claim? Also, can section 1983 claims for damages be brought as well under your EP theory?

Please know, I am not endorsing governments shaping all their law enforcement decisions based on party politics/affiliation. But policy differences between administrations always shape prosecutorial decisions/discretion (e.g., the Obama DOJ issued a marijuana enforcement policy that the Trump DOJ rescinded; we often see more white-collar and environmental prosecutions under Dem DOJs than under GOP DOJs; etc.). More to the point, it has always been my understanding that concerns about DOJ politics are to be addressed through the political branches. But you have what seems to be a novel view --- and so far lacking in any case law support or other doctrines --- that the Constitution's EP clause demands judges to block unrelated prosecutions because of alleged biases in the work of prosecutors.

Please know, many academics and defense attorneys would eagerly champion this kind of EP-blocks-otherwise-lawful prosecution claim if they did not fear getting laughed out of court (and possibly sanctioned) in light of existing doctrines. Yick Wo v. Hopkins and Miller-el are cases with individuals/defendants claiming they were directly subject to discrimination (and based on strict scrutiny EP categories). But I surmise you are claiming rational basis review means that folks with absolutely no relation to Hunter ("drug users") have an EP claim to preclude their prosecution. And what case do you think provides any real support for this EP claim?

I get that you want to harp on the fact that many in the academy care more about other prosecutorial biases. But even in the academy, where far-fetched constitutional claims in support of defendants are often the coin of the realm, I have never heard anyone trying to build the kind of (mysterious) EP claim you want to build. And that is why I am so eager to hear you elaborate on the claim rather than to hear continued moaning that other people do not see what you are claiming. Make it clearer so we can better understand how this seemingly novel constitutional claim works.

Posted by: Doug B | Mar 23, 2023 8:23:52 PM

Doug, Equal Protection applies to prosecutions--we know that because it applies in the race context. There's nothing in EPC jurisprudence that limits it to just race. Or are you saying that the US DOJ could pick and choose prosecutions based on naked party politics or based on connections to the powerful?

The issue is the ticket to discovery--in one of the cases, I forget which, the Equal Protection claim has to have evidence before it isn't dismissed.

But you're good with the lenience shown to Hunter. Own it.

Posted by: federalist | Mar 27, 2023 1:02:21 PM

federalist, Armstrong is the case you have in mind, dealing with an EP claim when someone himself said he was the direct victim of race-based treatment by being prosecuted when nobody else of other races was subject to prosecution for that exact charge. SCOTUS put impossible hurdles on discovery for such a claim, and that why I asked you many posts ago if you thought "Armstrong should be reconsidered so that it is easier to develop evidence for these kind of EP claims." (Race-based EP claims are also at the heart of the stash-house sting cases I have encourged you to review as an example of hinky federal police/prosecutorial behavior where there is a pattern of investigation and prosecution seemingly focused on only people of one race).

I am pleased you seem to be a fan of aggressive application of the EP clause to limit suspect prosecutions, and I hope you share my interest in seeing Armstrong reconsidered so that race-based claims might be investigated more (and more effectively). But, critically, Armstrong and other litigated EP cases (which have always failed in modern times) are examples of cases in which persons assert nobody else is getting prosecuted except a select few of a particular race (or other suspect class), and that is why those select few are seeking to develop an EP claim that often gets described as a "selective prosecution" claim. Your EP assertion here is based on, it seems, a claim of "selective non-prosecution" for Hunter, and it seems you think that novel claim somehow provides a basis for other unrelated people having an EP argument to block an otherwise lawful prosecution.

What has me puzzled, conceptually and doctrinally, is how any defendants not related in any way to Hunter could, under current EP jurisprudence, establish an EP violation to block their otherwise lawful prosecution by saying a political motive influenced a failure to prosecute Hunter. Do you have any legal support for the notion that a defendant unrelated to Hunter can claim an EP violation in an unrelated case? And can you answer if EVERY federal defendant can make this claim or just some? If only some, which ones?

I am not at all good with unfair breaks given to Hunter or the Clintons or the Trumps or Epstein or Judge Camp or lots of other privileged folks, and I certainly would love to imagine courts saying that breaks given to rich powerful folks have to be given to the regular guy. But where is the doctrinal basis for such a claim, federalist? And how would it work? That is what I keep asking and what you keep failing to answer. As I said before, this is why "I am so eager to hear you elaborate on the claim rather than to hear continued moaning that other people do not see what you are claiming. Make it clearer so we can better understand how this seemingly novel constitutional claim works."

Posted by: Doug B | Mar 27, 2023 1:44:02 PM

I'll respond at some point. Probably combined with a defense of Scalia.

I noted upthread that reality intrudes. But there is a EPC category of one case (9-0, btw), and if you take that in reverse, voila, you have my legal theory.

Posted by: federalist | Mar 28, 2023 2:00:30 PM

I look forward to hearing more about how your Hunter-based EP theory works to help others, federalist. But I do not quite see how "class of one" claims could work here. In the Olech case, the per curiam opinion focused on the defnedants claim that a government demand directed toward her was "irrational and wholly arbitrary," and thereafter the Supreme COurt refused to extend this approach to public employment because it is a "common-sense realization" that government offices could not function if every employment decision became a constitutional matter. Given the widespread and justified exercise of prosecutorial discretion, I would be suprised to know of any court applying "class of one" claims to federal prosecution through the Due Process Clause. And, as you suggest, you are actually aguing for a "reverse" form of a "class of one" claim, whatever that means.

Again, I look forward to hearing more details, though it is now quite clear that you are just trying to make this up as you go along. That's fine, but do not be shocked others are not along for the ride with you when we do not evenr understand what kind of jurisprudential car you are trying to drive or when it might go or who could get run over.

Posted by: Doug B. | Mar 28, 2023 3:02:08 PM

Not making it up. There are obvious problems with the idea--but those problems are a nod to the fact that we have to have a criminal justice system--what that does, unfortunately, is give cover to DOJ election motivated actions, and that's a problem.

Posted by: federalist | Mar 28, 2023 4:27:57 PM

I keep hoping you are not making this up, federalist, but I also keep waiting for any legal cites (or even a sensible accounting) in support of what you seem to be claiming (beyond, of course, the widely-shared concerns that prosecutors are often influenced by political and parochial biases).

Posted by: Doug B | Mar 28, 2023 6:21:48 PM

The problem, of course, is separating legitimate political concerns, i.e., responsiveness to the electorate and base electoral motives or sticking it to one political side. That is going on right now, and they are not even trying to hide it.

We've already agreed that EP principles apply to prosecution decisions, and we've already established that criminal defendants have some right to be treated similarly (see Kagan regarding the "right" to have a defendant not denied a plea deal because his lawyer is an idiot--she made that point at oral argument for Frye or the other case). So, it's really you that needs to show why these aren't viable claims--unless the idea that when it comes to prosecutions, EP principles only apply in the race context.

Posted by: federalist | Mar 29, 2023 9:14:46 AM

federalist, you are acting a bit dense here as you avoid the key issues and my follow-up questions. I surmise this is because you have no viable answers to the key issues and questions. (And, to deal with your Kagan point, she surely was discussing a 6th A/IAC issue, not an EP matter. You really are flailing now.)

EP doctrines (not just "principles") do apply to prosecution decisions and can apply beyond race. So, as one example, I could readily imagine a viable EP claim that trans defendants might bring after alleging a pattern of biased prosecutions of certain unusual criminal laws against just them but against nobody else for the exact same behavior. This would be a variation on a classic (but rarely successful) "selective prosecution" claim that is based in existing EP doctrines.

But, again, such a "selective prosecution" claim is brought by person(s) asserting their own prosecution was constitutionally problematic becuase the prosecution decided to prosecute them, and only them, for an insidious reason. But you are lamenting in Hunter's case what you see as "selective non-prosecution" (though I believe he is still under investigation by DOJ). What I have understood you to be asserting here is that an otherwise proper prosecution is constitutionally EP problematic because prosecutors in another unrelated case has decided not to prosecute/incarcerate for what you view as an improper reason (as you initially put it: "since they ain't putting Hunter Biden in prison ... then many of the drug users are being denied equal protection as applied to the feds by the Fifth Amendment").

I pressed you on this claim because I am not aware of any doctrines or any cases in which an otherwise lawful prosecution is blocked or altered because of the (alleged) improper motives/unequal behaviors of prosecutors in a completely unrelated case of non-prosecution. I know you are smart enough to see the difference here --- but it seems you are not smart enough to concoct viable answers to all the critical questions that your novel EP claim raises. (I am eager for answers in part because such a novel EP claim, if it had any basis in any viable doctrines or caselaw, could provide lots of poor and minority defendants lots of new constitutional arguments to block or alter their prosecution due to rich powerful white guys -- like Epstein and Judge Camp and Trump and Hunter and Bill Clinton and so many others -- seemingly getting passes or lighter treatment simply because they are rich powerful white guys.)

I hope you will make more of attempt to answer the most basic questions about your novel EP claim --- eg, "Do you have any legal support for the notion that [many] defendants unrelated to Hunter can claim an EP violation in an unrelated case? [Can] EVERY federal defendant make this claim or just some? If only some, which ones?". If you make no effort to address these basic questions, I will just file this discussion among the "federalist figments" emerging from your interesting (often partisan) vision of how you wished the law worked (along with, eg, your assertion that some prisoners have a right to attack guards).

Posted by: Doug B | Mar 29, 2023 10:11:22 AM

Re: Kagan, that is not a flail at all, as it touches on the prosecution function, i.e., whether to offer a plea deal. Let's get that right.

Do prisoners have the right to attack guards to protect themselves from sexual assault? I think it's hard to argue that they don't, especially given generalized necessity defenses etc. Is basic self-defense a right you give up when you are incarcerated? Even if you haven't yet been convicted? These are hard hard hard questions.

It should be very easy for you to say that EP principles don't apply to anything but race in the prosecution decision. You haven't said that.

Posted by: federalist | Mar 29, 2023 6:04:24 PM

federalist, I am finding it hard to understand what you are trying to assert or claim now. You first referenced vaguely some statement at oral argument by "Kagan regarding the 'right' to have a defendant not denied a plea deal because his lawyer is an idiot." That surely has to do with defense lawyers providing advice in the plea process. But now you suggest Kagan is saying something that "touches on the prosecution function, i.e., whether to offer a plea deal." Huh? Are you asserting that prosecutors have some kind of duty to offer plea deals --- and, regardless, what does that have to do with Hunter not being prosecuted? I am having a harder and harder time finding a cogent claim as your flailing continues.

(On the priosoner front, I believe there is Seventh Circuit ruling from the 1990s saying prisoners do not have a constitutional right to self defense. But I was referencing your past kooky assertion that prisoners have a right to attack guards beyond self-defense if they have a claim they are wrongfully incarcerated.)

Finally, my last comment says plainly "EP doctrines ... do apply to prosecution decisions and can apply beyond race." But you continue to evade --- or somehow fail to understand --- that the issue of concern for your novel EP theory is not whether race and/or other suspect classifications matter. The issue of concern is how even an alleged suspect declination in Hunter's case could be used by others --- you said "drug users" initially --- to mount an EP challenge to their otherwise lawful prosecutions. As I keep asking (and you keep failing to answer), I'd like to know of any doctrines or cases to support the notion that even a clearly corrupt declination decision in one case provides an EP basis to challenge an otherwise lawful prosecution in another unrelated case. And, especially since your novel EP claim seemingly lacks any doctrinal or caselaw foundation, I also want to know how you think it would/should function -- ie, can EVERY federal defendant make your novel EP claim or just some? If only some, which ones?

Posted by: Doug B | Mar 29, 2023 8:56:36 PM

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