DC: Lowery vs US, Supreme Court requests SG response

Kharn · Sep 15, 2011

Supreme Court Docket
Sep 12 2011 Response Requested . (Due October 12, 2011) [Court requesting the Solicitor General for the United States respond to Mr Lowery's cert petition]

The ruling below
Lowery was convicted of possessing an registered handgun in Washington DC due to an incident in 2006 when his home was searched for officer safety as part of an eviction and the handgun was found under his mattress. The ruling below is from September 2010 and the court went through a lot of hand-wringing as to why Heller was not appropriate and the conviction should not be reconsidered. The dissent nails the majority and states Heller should apply and his case should be reexamined, citing Plummer v US (apparently a post-Heller case in DC with very similar circumstances, sounds like he was set free but I haven't read his case yet).

krucam · Sep 15, 2011

I don't see this one gaining much traction.

SE DC, behind on rent, eviction proceedings, Sheriff's Office present for eviction, gun found during "safety search".

Whether the gun was found during a preliminary search (it was under his mattress) or was found when they're removing the mattress (remember, this is an eviction), the gun was going to be found one way or the other.

I don't see this being an ideal case for dealing with firearms registration schemes and/or FOIDs.

Inigoes · Sep 15, 2011

krucam said:
I don't see this one gaining much traction.

SE DC, behind on rent, eviction proceedings, Sheriff's Office present for eviction, gun found during "safety search".

Whether the gun was found during a preliminary search (it was under his mattress) or was found when they're removing the mattress (remember, this is an eviction), the gun was going to be found one way or the other.

I don't see this being an ideal case for dealing with firearms registration schemes and/or FOIDs.

Actually, I think this has merit. The eviction, search has nothing to do the 2A issue.

Police conduct a search, in their search they turn up things. Was the suspect arrested for a kitchen knife, no! The suspect was arrested for having an unregistered firearm "in the Home" located in DC.

hvymax · Sep 15, 2011

This was "In The Home"! The police removed the gun from the home so he was not even in possesion of it or transporting it. The persecuter is the one who belongs in prison.

Elliotte · Sep 15, 2011

krucam said:
I don't see this one gaining much traction.

SE DC, behind on rent, eviction proceedings, Sheriff's Office present for eviction, gun found during "safety search".

Whether the gun was found during a preliminary search (it was under his mattress) or was found when they're removing the mattress (remember, this is an eviction), the gun was going to be found one way or the other.

I don't see this being an ideal case for dealing with firearms registration schemes and/or FOIDs.

Huh, I didn't know DC had a Sheriff's Office.Learn something new every day.

yellowfin · Sep 15, 2011

Gene seems to like it, so that says something. Anyone got the cert petition?

Lapua Dan · Sep 15, 2011

Al Norris · Sep 15, 2011

The petition for cert (found at CalGuns) is attached.

The question presented to the court:

Whether the “right to keep and bear arms” protected by the Second Amendment of the United States Constitution as enunciated in District of Columbia v. Heller, 554 U.S. _____, 128 S..Ct. 2783, 171 L.Ed. 637 (2008) applies retroactively to a person who possessed a handgun in his own home without a registration certificate that was not obtainable at that time by ordinary, law-abiding citizens; and had not asserted his Second Amendment right at a trial held prior to Heller.

press1280 · Sep 16, 2011

Interesting. I wonder if this sort of ties in with Williams and Masciandaro-criminal convictions getting overturned when either A) A license didn't exist at the time(Masciandaro), or B) A license exists but is next to impossible to obtain(Williams). This may indicate a step toward shall-issue with some teeth. States like MD would not help themselves by playing games and making people wait 6 months for permits, excessive fees,exc. if they know convictions will be tossed.

Kharn · Sep 16, 2011

Not a very ambitious question, sounds like he's hoping to skip the drama and be GVR'ed.

jrosenberger · Sep 16, 2011

Kharn said:
Not a very ambitious question, sounds like he's hoping to skip the drama and be GVR'ed.

Yeah, my non-lawyer, only knows about this stuff from following on forums opinion is that this either gets GVR'd or denied. It seems pretty unlikely that SCOTUS would take the case without the arguments being developed at the lower courts. I'd bet on a quick GVR.

yellowfin · Sep 16, 2011

Can we use a GVR as precedent, taking it as a yes answer to the question?

Kharn · Sep 17, 2011

It is preferred to directly cite the decision or legal theory the GVR will instruct the lower court to use. GVR means the court below really screwed the pooch doing their homework and the Justices do not need to waste their time as its so obviously wrong.

Afield · Sep 17, 2011

Kharn said:
It is preferred to directly cite the decision or legal theory the GVR will instruct the lower court to use. GVR means the court below really screwed the pooch doing their homework and the Justices do not need to waste their time as its so obviously wrong.

Implying they could GVR Williams...though it wouldn't have the usefulness of a well written opinion...?

K-Romulus · Sep 17, 2011

GVR = grant vacate remand??

Dogabutila · Sep 17, 2011

K-Romulus said:
GVR = grant vacate remand??

Yes.

Imo this has 5th amendment implications as well as 2A implications.

jrosenberger · Sep 18, 2011

Kharn said:
It is preferred to directly cite the decision or legal theory the GVR will instruct the lower court to use. GVR means the court below really screwed the pooch doing their homework and the Justices do not need to waste their time as its so obviously wrong.

In this case it's not a screwed the pooch GVR, it's a the world changed GVR. That's what happened in Maloney (the NY nunchuku case). After McDonald, SCOTUS GVR'd it saying 'reconsider in light of McDonald'.

Kharn · Sep 18, 2011

jrosenberger,
That was correct for Maloney as Heller was fresh jurisprudence at the time, Lowery came two years after Heller and two months after McDonald so they certainly had time to consider their implications.

Elliotte · Sep 19, 2011

Lapua Dan said:
DC doesn't have a Sheriff's office, and the Metropolitan Police Department doesn't do evictions. The US Marshall service does them.

Ah, grown up in MoCo, I thought there was a new LE Dept in DC I hadn't heard of before.

jrosenberger · Sep 19, 2011

I must've misunderstood the timeline then. I thought Lowery was just before McDonald, not just after.

DC: Lowery vs US, Supreme Court requests SG response

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