esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Argument time and panel confirmation order. 15 minutes a side, standard.
Schader Oral argument 10/10/2012
- Thread starter esqappellate
- Start date
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esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Oral argument was held today in the D.C. Circuit. Argument time vastly exceeded 15 minutes per side. Gura was up for a good 30 minutes and gov. counsel was up well past her time. While the court did not appear to buy Gura's argument that 922(g) should be narrowly construed to exclude common law offenses categorically, at least two members of the panel appeared to be very uncomfortable with a holding that 922(g) could be constitutionally applied to Mr. Schrader specifically in his unique circumstances. They were looking at ways to avoid the constitutional holding, perhaps with a remand to the district court with instructions to apply 18 usc 925(c). However, that would require a judicial rewrite of 925(c), as it permits the district court to review a denial of a decision of the AG, not to conduct de novo proceedings in the absence of such an AG denial, and 925(c) has been defunded by Congress so the AG has no money to apply it. As Judge Tatel said to gov. counsel "assume that we have a major constitutional problem with applying 922(g) to Schrader personally so give us a way to avoid the constitutional issue" Gov. counsel declined the invitation (and honestly there does not appear any easy way to avoid the constitutional issue if the court does not rewrite the statute to avoid application to common law crimes). Bottom line prediction (don't hold me to it): 2-1 (Judges Tatel and Williams) for Schrader in *some* manner, if only a remand for a factual hearing. As Judge Tatel suggested: The Court may be forced to make a constitutional ruling that 922(g) "as applied" to Schrader is unconstitutional under the 2A.
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Al Norris
Spud Head
Thanks for the feedback on the orals panel, esqappellate. With your permission, I would like to post your thoughts over at the Firing Line.
Just read the circuits orders on transcripts and audio of orals. The transcript, at $2.90 per page, puts it out of my means. According to the circuits website, audio of the oral argument will be made available only after the proceedings are completely closed. Shame that they figure this is "serving" the public (just my biased observation).
Just read the circuits orders on transcripts and audio of orals. The transcript, at $2.90 per page, puts it out of my means. According to the circuits website, audio of the oral argument will be made available only after the proceedings are completely closed. Shame that they figure this is "serving" the public (just my biased observation).
jrosenberger
Active Member
Do you know of case law in other contexts as to failure to act on a petition being construed as a denial? It seems this would be a common issue. I've seen it explicit in some statues (inaction beyond some timeframe is considered a denial), but I'm sure there are plenty of other contexts with similar problems to 925(c).
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Sure, go ahead. I am not ordering this transcript either. I also wish the D.C. Circuit would change its process on oral arguments so as to make a tape fully available, but I am doubtful that will happen. Note that the SCT has already held that under 18 usc 925, the district court is limited to reviewing an administrative denial of a request for relief of the possession disability. See United States v. Bean, 537 U.S. 71, 123 S.Ct. 584 (2002) (holding that actual denial of relief from firearms disabilities was prerequisite to judicial review). Since 925(c) proceedings have been defunded there is no possibility of administrative proceedings and hence no right of action in district court under 925(c). The D.C. Circuit knows that. So, the possibility of an actual ruling on the 2A is quite real.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Precluded by 9-0 SCT precedent as to 925(c). See United States v. Bean, 537 U.S. 71, 123 S.Ct. 584 (2002) (holding that actual denial of relief from firearms disabilities was prerequisite to judicial review).
Al Norris
Spud Head
Thank you for the permission.
When you wrote, "that would require a judicial rewrite of 925(c), as it permits the district court to review a denial of a decision of the AG," that was my (nagging) second thought.
For those that are unaware, but interested in this decision, the Berkely Press has a 2003 article available for download (75pg PDF @ 2.4MB): http://law.bepress.com/expresso/eps/87/
ETA: The actual opinion (written by Justice Thomas) is availble from Cornell: http://www.law.cornell.edu/supct/html/01-704.ZS.html
When you wrote, "that would require a judicial rewrite of 925(c), as it permits the district court to review a denial of a decision of the AG," that was my (nagging) second thought.
For those that are unaware, but interested in this decision, the Berkely Press has a 2003 article available for download (75pg PDF @ 2.4MB): http://law.bepress.com/expresso/eps/87/
ETA: The actual opinion (written by Justice Thomas) is availble from Cornell: http://www.law.cornell.edu/supct/html/01-704.ZS.html
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Gray Peterson
Active Member
That was before 2A was ruled to be an individual right.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
True, but that doesn't make any difference to the rationale for the decision in Bean. Bean decided the scope of the statute as written and as the 9/0 decision suggests, it was dead on in its analysis as a matter of statutory construction. There is not a constitutional right to a 925(c) type of administrative hearing and Congress is free to dictate the scope of the district court's jurisdiction as it sees fit (viz., by restricting it to reviewing an administrative denial of a request to be relieved of the disability). It just means that the question of the constitutionality of 922(g)(1) "as applied" to Schrader cannot be avoided by requiring him to exhaust 925(c), as 925(c) is not available to him (because it has been defunded) and the district court does not have de novo original jurisdiction to entertain a suit without an administrative determination.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Rule 28j letter from plaintiff's counsel re oral argument questions. A response to Judge Randolph.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Decision. Schrader loses. Court refuses to consider the as applied argument:
At several points in their briefs, plaintiffs appear to go beyond their argument that section 922(g)(1) is unconstitutional as applied to common-law misdemeanants as a class and claim that the statute is invalid as applied to Schrader specifically. Were this argument properly before us, Heller might well dictate a different outcome. According to the complaint’s allegations, Schrader’s offense occurred over forty years ago and involved only a fistfight. Second Am. Compl. ¶ 10. Schrader received no jail time, served honorably in Vietnam, and, except for a single traffic violation, has had no encounter with the law since then. Id. ¶¶ 11–12. To the extent that these allegations are true, we would hesitate to find Schrader outside the class of “law-abiding, responsible citizens” whose possession of firearms is, under Heller, protected by the Second Amendment. Heller, 554 U.S. at 635.
At several points in their briefs, plaintiffs appear to go beyond their argument that section 922(g)(1) is unconstitutional as applied to common-law misdemeanants as a class and claim that the statute is invalid as applied to Schrader specifically. Were this argument properly before us, Heller might well dictate a different outcome. According to the complaint’s allegations, Schrader’s offense occurred over forty years ago and involved only a fistfight. Second Am. Compl. ¶ 10. Schrader received no jail time, served honorably in Vietnam, and, except for a single traffic violation, has had no encounter with the law since then. Id. ¶¶ 11–12. To the extent that these allegations are true, we would hesitate to find Schrader outside the class of “law-abiding, responsible citizens” whose possession of firearms is, under Heller, protected by the Second Amendment. Heller, 554 U.S. at 635.
How is this not Ex Post Facto where the penalty was not exclusionary when issued? They cannot go back and extend a sentence to the current mandatory minimum for a crime and sentence that occured years earlier.
The courts are batting a 1000, when it comes to dirty hands 2A civil suits.
If there is a wiff of a criminal complaint; intermediate scrutiny is applied, and the court washes their hands of it.
If there is a wiff of a criminal complaint; intermediate scrutiny is applied, and the court washes their hands of it.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Ex Post Facto applies only to criminal prosecutions. Firearms disability is not criminal.
So, with no clear maximum sentence for his crime in 1968, they simply decided to deny him his right to own a firearm?
Would this work both ways? What if pot was legalized tomorrow? Would anyone in jail for consuming pot be immediately released? (I'm assuming there might be someone in jail for using pot.)
I need a road map to this country that's been dropped on me.
Would this work both ways? What if pot was legalized tomorrow? Would anyone in jail for consuming pot be immediately released? (I'm assuming there might be someone in jail for using pot.)
I need a road map to this country that's been dropped on me.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Ah, no you would stay in jail cuz it as a crime when you did it.
Get the hell outta here! If you're in jail and the crime you're serving time for is made a crime no longer, they DON'T let you out?
No sarc here. I'm truly amazed.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Well, I was being a bit facetious. It's actually more complicated. In your pot example, if the conviction is final and no longer appealable (you are sitting in jail serving your term) and the statute is repealed while you are in jail, you are basically stuck; your only possible remedy is a request for a pardon. See Rubio v. Estelle, 689 F.2d 533, 536 (5th Cir.1982) (“repeal of a statute does not repeal prior convictions based on violations of that statute when that statute was in effect”). See also 1 U.S.C. 109 ("The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."). A slightly different rule obtains for criminal violations of a regulation. If the underlying statute remains in effect but the implementing regulations have been revoked after the arrest, then prosecution is still allowed for violations of the regulations while still in effect if the underlying statute authorizing the regulation has not been repealed. This happened in United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), where the 4th Circuit sustained a federal conviction for bringing a gun into a National Park even though the regulation establishing the prohibition, 36 C.F.R. § 2.4(b), had been revoked after the arrest but prior to conviction.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
The opposite. He should have made an "as-applied-to him-personally" challenge, rather than a facial challenge to the constitutionality of 922 as applied to common law crimes.
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