Hate crime prosecutions in the new administration

A story out of West Virginia this past week reminded me of an issue that has arisen with respect to the Trump Justice Department, and, in particular, the President-Elect-to-be’s choice for Attorney General.  According to local and national news reports, a 62-year-old man has been accused of murder under West Virginia law, after he shot and killed a 15-year-old boy.  Police say that William Pulliam, who is white, shot James Means, who is African-American, after the two bumped into each other outside of a store near Charleston. Reports say that Pulliam shot Means, then had dinner and visited a friend’s home, where a firearm was found.  Pulliam claims the killing was self-defense.  Now, the United States Attorneys Office confirms it is involved in the case, investigating whether the killing might be a federal hate crime.

There is consternation among many critics of both Trump and Senator Jeff Sessions, who Trump has tapped for AG.  One of the major criticisms of a Sessions-led Justice Department, it is said, is that the DOJ will not make civil rights cases a priority.  That, presumably, could include weak enforcement of the federal hate crimes law. The Pulliam case could be an early test of this theory for the Trump DOJ.

Still, I wonder whether this particular criticism is overstated.  While I think it likely that the new administration’s Civil Rights Division will take a much different view of some civil rights matters (e.g., voting) than the current Civil Rights Division, it is also likely that a Trump Justice Department will make violent crime an enforcement priority.  Federal hate crimes under the Hate Crime Prevention Act are, by definition, violent crimes.  The Shepard-Byrd Act requires that the defendant either willfully cause bodily injury or – through use of fire, firearm, dangerous weapon, explosive or incendiary device – attempt to cause bodily injury. 18 U.S.C. 249.  Because of the double mens rea (that the act be done willfully and that it be done because of certain kinds of animus), the defendant’s state of mind is often the contested issue in the case.  I suspect that will be the issue in the Pulliam case, as well, as there seems to be no question that he used a firearm to kill Means (though there remains the issue of justification).

If the Sessions DOJ makes violent crime an enforcement priority (as I suspect it will, and should), then there is little reason to think that it will categorically refuse to enforce the Shepard-Byrd hate crimes law.  Of course, there remains the question of whether the DOJ should prosecute in cases where the state is also prosecuting, or whether the alleged act involves the kind of animus required by the statute, but those are already barriers to enforcement now.  Neither is a sticking point unique to the Trump Administration.

It is also worth noting that during the debate on the hate crimes bill, Senator Sessions proposed an amendment that would have allowed the death penalty for certain hate crimes resulting in the death of the victim.  Though some described the Sessions Amendment as a poison pill, there were – and remain – considerable arguments for making a hate crime that results in death a capital offense.  Several other criminal statutes relating to civil rights already provide for capital punishment.

There has been an understandable sensitivity to bigotry in the wake of the presidential campaign and the election.  But not every act of bigotry is a federal hate crime, detestable as the act may be.  Merely shouting offensive words, for example, is not a violation of section 249.  The statute requires a highly culpable mental state, combined with personal animus, combined with the infliction or attempted infliction of bodily injury.  And until Congress broadens the law, every Administration – Republican or Democrat – must wrestle with the limits on its enforcement.  Of course, hate crimes may also be prosecuted under Section 245, but again, there are limits: that statute’s narrow hate crime provisions are limited to injury, intimidation, or interference based only on race, color, religion, or national origin, and only with respect to certain federally protected activities.

Still, the new Trump Justice Department could help allay some of the public’s concerns if it demonstrates a proper appreciation for the virtues of the Shepard-Byrd Act, the federally protected activities statute, and the idea of treating animus-based violence as a particularly insidious form of criminality.  I am hopeful that an Attorney General Sessions and his Civil Rights Division will enforce it, sensibly, as part of a wider policy that both attacks violent crime and sustains the Department’s tradition of defending civil rights.

On the new Trump Administration: Aim higher, please

I have taken a few days to think about how to respond to the tentative election of Donald Trump as President. It is important to remember that his election is not official until the Electoral College votes in December. But I do not expect faithless electors to change the result we saw on Wednesday morning.

Consequently, Trump is — in all likelihood– the next President.  His election was a remarkable accomplishment.  I have, for the last year or so, been pretty tough on Trump.  I do not think I was ever unfair, and though my criticism was at times perhaps a bit biting, I generally tried to tie those criticisms to my own beliefs that the American presidency requires a certain kind of constitutionalism, and a certain kind of mind.  That said, in several posts over the last few months, I cautioned that Trump remained a viable candidate, polls and controversies notwithstanding.  Now that the election is over, I believe that the President-Elect deserves our support and encouragement.  It is not necessary to admire him or to endorse his words or actions in the past (nor should we easily forget those things or treat them as if they did not happen).  And it certainly is just and appropriate that Americans challenge him when he is wrong.  But he will have many difficult battles to face and many problems to solve that, for now, seem nearly insoluble.  And if Hillary Clinton was right when she said that we are Stronger Together, then surely that sentiment applies whether she or Donald Trump is President.

As the new administration is formed, I offer two observations — pieces of advice, really.

First, to the Trump transition team: the campaign is over.  Neither Hillary Clinton, nor Barack Obama, is the enemy now.  Governing requires discipline, accountability, prudence, wisdom, and fidelity to the Constitution.  Governing a great Nation cannot ever be about vengeance or score-settling.  Surround the President-elect with serious, thoughtful, sober men and women who care more about their country than their party, and more about the next four years than the last twelve months.  Rid the Trump White House of dark and disdainful characters who will only sow division and hatred, seeking out vendettas and governing simply with an axe to grind.  Whatever their value during a nasty and divisive campaign, when it comes to governing, these are the people who will lead you to the path of ruin.  Aim higher than your campaign did.

Second, to those who did not support Trump (especially Republicans): do not categorically reject the opportunity to serve the country under President Trump.  I fully understand that there will be good reasons not to do so.  But the President must be able to govern.  And his success in governing will in large measure depend upon the quality of the people who surround him.

There are many smart, thoughtful, patriotic people who could assist the President in carrying out his constitutional duties.  And many of them did not support, or vote for, Donald Trump.  Some of them, in fact, voted for Hillary Clinton.  I hope the President-elect will find as many of these people as he can and bring them to his side, whether they voted for him or not.  Blind loyalty is not more valuable than a decent and competent constitutional government.

 

Prominent originalists oppose Trump, eviscerate the one possible argument for him

A group of well-respected constitutional originalists have signed this statement: Originalists Against Trump.  I cannot improve upon the statement.  But it is an important one.

The sole remaining argument in favor of a Trump victory is the argument that, as opposed to Hillary Clinton, he will appoint conservative constitutionalists to the Supreme Court.  That may or may not be true (I am skeptical, and my skepticism rises as I think about his potential appointees to the remainder of the federal judiciary).  But even if it is, it is inadequate.  There is no reason to believe that the Supreme Court is the focal point of American constitutionalism and the rule of law.  Rather, as the Originalists’ statement makes clear, the Court is one – but only one – component of a much deeper and richer American constitutionalism that also includes the President and the Congress.  The day-to-day governance of the Nation requires a President who cares about the answers to the constitutional questions that will confront him and his Administration regularly, questions that may never be litigated, much less reach the Supreme Court.  Even if he lacks ready answers, a president must be willing to learn what he needs to know in order to answer them – or at least reflect on them – properly.  Trump strikes me as not only ignorant about such questions, but also intolerably bored by the prospect of confronting them.  Presidents need not be legal scholars, but they ought to have an abiding respect for the constitutional structure and for constitutional rights.  If a President lacks respect for the Constitution, and fails to preserve, protect, and defend it in the daily exercise of his powers, then his promises about the Supreme Court matter very little.  We need a constitutionalist in the Oval Office as much as we need one on the Court.

Ilya Somin has a thoughtful post here at VC, linking to the Originalists Against Trump site and to another thoughtful post, this one by Conor Friedersdorf at The Atlantic.

 

 

On prosecuting political opponents

I have endeavored to avoid jumping into the fray regarding the Trump tape that surfaced last Friday.  Others have adequately said everything there is to say.  And there can be no debate among intelligent people that Trump’s comments there are worthy of condemnation in the strongest possible terms (of course, I have been doing that for over a year now, and have openly wondered why so many others are so late to the party).  And then there are the allegations that emerged last night (see Politico’s piece here).  Governor Pence has attempted to rationalize his continued place on the ticket by emphasizing the nature of Christian forgiveness and grace.   That is surely a ground for forgiving Trump’s sins; it is not, though, a ground for establishing his character and fitness for the Presidency.  That a person has done something for which they should be forgiven is not to say that the person should be elected to high office.  Moreover, someone should ask Governor Pence: wouldn’t the idea of Christian forgiveness, and of God’s grace, extend to Bill and Hillary Clinton, too?  Or are those gifts available only to Republicans?

Additionally, the “Bill Clinton Is Also A Bad Guy” strategy is both illogical and self-defeating.  I am not sure how it benefits Trump to get into a morality contest with Bill Clinton.  Moreover, those who are firmly in the Trump camp already despise the Clintons.  Trump’s goal should be not to preach to the converted, but to expand his support by reaching educated, suburban Republicans (chiefly women, but men, too) who do not yet support him but who generally are not fans of the Clintons, either.  Most likely, the people in that category voted for George H.W. Bush and Bob Dole.  So saying to these folks, “but what about Bill Clinton?!?  Don’t be a hypocrite!” gets Trump nowhere.  The response from this cohort is readily apparent: “I didn’t vote for Bill Clinton, either.”  In other words, these folks cannot be accused of hypocrisy in refusing to support Trump on the grounds that he lacks the character and decency to be President.  And they do not regard Hillary Clinton and her husband as equally culpable in this regard.

But, of course, there are many, many other reasons not to vote for Donald Trump.  Throughout the past year, I have identified two chief reasons why Trump is categorically unacceptable, especially for conservative Republicans: (1) he does not appear to know, or care, anything about the nature and scope of constitutional government in America; and (2) he does not appreciate the importance of limits, of restraint, of boundaries.  These shortcomings have been amply displayed throughout Trump’s campaign.  And the second one is clearly implicated by the Access Hollywood tape and the allegations against him that he has kissed or groped women without their consent, and invaded the dressing room of pageant contestants in a state of undress.  But both flaws were revealed on Sunday night in St. Louis, and that is where I wish to focus, because this race is not over.

In particular, Trump said that he would have his Attorney General appoint a special prosecutor to consider whether to prosecute Hillary Clinton.  It was not clear to me the grounds on which such a prosecution would be undertaken.  Trump meandered between accusations regarding the Clinton emails, the Clinton Foundation, and her interview with the FBI.  Of course, her FBI interview occurred this past July, well after her service in the federal government had ended.  So it was not clear whether he wanted to prosecute her for actions while Secretary of State, or after.  Perhaps he meant all of the above.

In any event, the major problem is one that others (see, e.g., here and here) have now readily identified.  In this country, we generally do not condone a president’s use of prosecutorial power to imprison his political opponents.   It is especially problematic when the president has used prosecuting his opponent as a line of attack during a campaign.  While it is true that federal prosecutors work for the President, and that the President has power to “take care that the laws be faithfully executed,” there is a notable tradition of keeping Presidents distant from the exercise of day-to-day prosecutorial power, particularly when the President’s political interests or personal animosities would create the appearance of using such power improperly.  To say nothing of the fact that Trump seems to be ignoring the existing federal law on how special prosecutors get selected.  There is a legal framework for doing this kind of thing, and that framework does not include presidential whim.

Still, this matter is more complicated than it has been made out to be.  Indeed, some (see., e.g., here at NR) have argued that Trump’s statement at the debate was different.  This is not, they say, a case of Clinton being prosecuted because of her status as a political opponent.  Rather, they argue, there is credible, objective evidence that she committed federal crimes that generally would warrant prosecution.  Categorically refusing to prosecute her merely because she was the Democratic nominee for President would, the argument goes, effectively place her above the law.  Trump’s suggestion does not, then, have the same “banana republic” feel that it would have if there was no evidence of Clinton’s criminality.

That is not an unreasonable line of argument.  But it has several flaws when viewed in light of Trump’s own public comments.

First, Trump complicated that argument at the debate.  When Clinton said it was good that someone with Trump’s temperament was not responsible for law enforcement, Trump interjected, “That’s because you’d be in jail.”  Trump’s childish retort therefore makes it difficult for him to argue that the whole purpose of a special prosecutor is to carefully and objectively investigate the facts and weigh the evidence, regardless of where it may lead.  His statement effectively functions as a categorical determination of her guilt.  It therefore undermines any sense of objectivity, even with a special prosecutor at the helm (federal regulations require special prosecutors to be objective and to have no conflicts of interest).  Indeed, Trump’s rallies have repeatedly been characterized by the chant “lock her up,” and that is something to which Trump explicitly agreed recently.  Passing it off as an non-serious quip (a dubious explanation) still doesn’t help.

To make matters even more complicated, Trump spoke openly about his own administration – with no mention of a special prosecutor – prosecuting Clinton well before the FBI Director publicly discussed the nature of the evidence and its own findings.  I posted about this many months ago, discussing even then the complex constitutional and legal questions that such a presidential action would involve.  The fact that Trump was pressing this matter – not just her potential criminality, but his intention to personally use the powers of the presidency against her – months before she had even been interviewed by the FBI, and before the FBI released its own decision, suggests that Trump had already formed a conclusion about her guilt.  Now, he was not the only one.  Many (far more thoughtful and intelligent) people had expressed views about her alleged criminality prior to the FBI’s recommendation and the DOJ’s decision.  But the difference is clear: there is no evidence whatsoever that Trump’s earlier statements about prosecuting her were based in any way on a careful analysis of the facts and the law.

In other words, Trump may have had a more credible basis for seeking prosecution of Clinton if he had only kept his big mouth shut.  But by constantly making public statements about his view of her guilt and condign incarceration, without any meaningful legal analysis, he has created the appearance that any subsequent investigation would be a sham, even if done by a special counsel.

I am not among those who believe that it is easy to separate politics entirely from the criminal law.  The creation and definition of crimes often involve political calculations; the chief law enforcement officer and her subordinates are political appointees, who serve at the pleasure of an elected official.  Presidents and their politically-appointed subordinates make decisions about enforcement priorities, budgets, etc.  But I would distinguish these kinds of political considerations from the exercise of prosecutorial discretion on partisan or electoral grounds.  The exercise of federal prosecutorial discretion must be objective, apolitical, and non-partisan; it must be based solely on the facts, evidence, and law; and it must carefully consider the federal and public interests in bringing a prosecution, including whether the interests of justice can be served in other ways.  I have said before that “politicization of the Justice Department” is an overused charge.  But where it is true, it is gravely dangerous to the rule of law and to constitutional government.

So Trump’s threat to investigate and prosecute Clinton may arguably be defensible on some abstract theory, but it is surely ill-advised.  The fervor of his public comments – “lock her up,” Crooked Hillary,” etc. – including those he had made earlier in the campaign, have created the appearance that any investigation and subsequent prosecution would be based in substantial part on personal animus against Clinton.  Even if there remained a good faith legal basis for a criminal prosecution, the hostility that Trump has personally shown toward Clinton, and his repeated incantations about her imprisonment, would have the effect of transforming an otherwise legitimate inquiry into an attack on the rule of law.  And it would represent yet another instance in which Trump’s pettiness, petulance, and self-absorption led him to ignore appropriate boundaries.

 

Arnold Palmer, R.I.P.

When I teach Constitutional Law, I remind my students that Brown v. Board of Education is likely the only absolutely venerated case in the history of constitutional law.  In the world of sport, though sport has its heroes, it is hard to identify those who are absolutely venerated inside – and outside – of their sport.  But Arnold Palmer was one of them.

Arnold Palmer was a genuine superstar.  He was beloved by golf fans, by fellow golfers, by advertising executives, and by an America that admired his combination of grit, charm, intensity, and class.  At a time when professional athletes now seem less and less heroic, Arnold Palmer was a hero – revered even decades after his last victory on the PGA Tour and his last major championship win.  Who can forget that fateful day in June of 1994, as we gazed in disbelief at that White Ford Bronco on a southern California highway?  That was the same day, in his backyard at Oakmont, that Palmer said farewell to the United States Open.  In his tearful press conference after his round, Palmer said, “I suppose the most important thing . . . is that it has been as good as it has been to me.”  An entire press tent full of reporters then rose to their feet, giving Palmer a standing ovation.  When was the last time you saw an entire throng of reporters give a standing ovation to a public figure who was the subject of their reporting?  The contrast that day between the two kinds of sporting heroes in the news could not have been more stark.

It is, I suppose, fitting, that on this important day, when we evaluate our Nation’s future, we remember The King.  Arnold Palmer was the embodiment of American character, on and off of the golf course.  And his legacy is forever enshrined in the hearts of golfers, and in a Nation grateful for him and what he gave it.  At age 87, Arnold Palmer has passed away.  Requiescat in pace.

 

The first debate, and the vices of low expectations

Imagine the following exchanges on Monday night:

LESTER HOLT:  Secretary Clinton.  Please tell us ten specific things you would do to combat international terrorism, linking those specific proposals to a comprehensive plan for addressing the Syrian refugee crisis, which you should also link to a specific plan for addressing undocumented immigrants in America, and explain why the American people should trust you with these responsibilities given the fact that you were nearly indicted for transmitting classified national security information through a private email server and that people generally find you dishonest and unlikable.  And I will need that response in the form of a question.

[Clinton responds carefully and effectively to each point]

LESTER HOLT:  Mr. Trump, the next question is for you.  Please spell the word “dog.”

[Trump struggles at first, but ultimately spells the word correctly.  Trump is declared the winner.]

Though hyperbolic, this is the scenario that Clinton supporters, or at least those against Trump, fear: that so long as Trump can piece together a coherent sentence without using a racial epithet, he wins.  This is the low expectations game that has buoyed Trump throughout the election.  And the emerging conventional wisdom is that it benefits him enormously in the debates.  If that is true, Clinton must find a strategy that mitigates this advantage that Trump will have.

There is an interesting analogue to this.  In Season 4 of The West Wing, President Bartlet faces a re-election bid against the Republican Governor of Florida, Rob Ritchie.  Bartlet is seen as erudite, aloof, and pompous; Ritchie is viewed as unsophisticated and lacking in intellect but possessing a common touch with voters.  In “20 Hours in America,” Deputy Chief of Staff Josh Lyman and Deputy Communications Director Toby Ziegler clash over whether Bartlet’s smarts are a virtue or a vice against an opponent who, though not nearly as intelligent, appeals to the masses.  Critical of the Bartlet campaign’s efforts to make the election about their candidate’s ability to grasp the complexity of the issues, Lyman at one point says, “most people weren’t the smartest kid in the class.  Most people didn’t like the smartest kid in the class.”

In a later episode (“The Red Mass”), Press Secretary C.J. Cregg tells Toby Ziegler that she is convinced that the low expectations game heavily favors Ritchie.  She says, after being asked by others what would constitute a win for President Bartlet in the debates, “at this point, I feel like if, and only if, Ritchie accidentally lights his podium on fire does the President have a fighting chance.”  After Toby disagrees, she then elaborates:

C.J:  If the whole thing is that he can’t tie his shoelaces, and it turns out he can, then that is the ballgame.

TOBY:  And I believe he’ll have to do more than tie his shoelaces.

C.J.: Not much more.

Two episodes later (“Game On”), after the candidates have agreed to a single debate, and rather than take a softer and more collegial approach, the President demolishes Ritchie with a skilled performance that demonstrates his command of the issues and Ritchie’s lack of depth.  After the debate, in a bar up the road in California, Deputy Communications Director Sam Seaborn meets with a congressional campaign operative named Will Bailey.  Bailey says to Seaborn, referring to Bartlet, “I thought he was going to have to fall all over himself trying to be genial.”  Seaborn responds:

“So did we.  But then we were convinced by polling that he was going to be seen as arrogant no matter what performance he gave at the debate.  And then that morning at 3:10 my phone rings.  And it’s Toby Ziegler.  And he says ‘Don’t you get it?  It’s a gift, that they’re irreversibly convinced he’s arrogant, because now he can be.’  If you’re guy is seen that way, you might as well knock some bodies down with it.”

Bartlet cruises to a landslide victory in the election.

Clinton’s dilemma is not fictional and probably more complicated.  Trump is sui generis.  But there is a lesson for her in this series of episodes.  There exists a conventional wisdom that she must be careful not to come across as tutorial, or condescending; that no one really liked the smartest kid in the class.  Maybe.  But no one really liked the dumbest kid in the class, either.  They didn’t really like the class clown.  And they didn’t really like the class bully.  Clinton’s challenge is to show voters that when picking a President, it’s better to have the smartest kid in the class than the dumbest; better to have competence than clownishness; better to have an aloof cheerleader than a belligerent thug.   And she has to do it all while not coming off like Tracy Flick.

In other words, if people already see her that way, she might as well knock a few bodies down with it.

But it’s still a risk, especially at a time when facts and issues seem to matter so much less than ever before.  This has been the Attitude Election.  And for all of Trump’s shortcomings, attitude has been his asset.  It’s how he knocks down bodies.

So, there’s an irony here.  Trump wants to Make America Great Again, but his latest pitch is, “it can’t get any worse, so what do you have to lose?”  Hardly an inspiring message.  Hardly an appeal to American greatness.  But it is at least consistent with his broader message that we are a second-rate country.  He wants to Make America Great Again, but his easiest path to the presidency is to simply satisfy basement-level expectations of his abilities.  Greatness, by being mediocre.  That’s the Trump method.  And it’s working.  Will it on Monday?

What will become of Chris Christie?

Last week, before an ever-fawning media that was being played like a fiddle, Donald Trump spent several seconds repudiating the despicable Obama birther lie that he had willfully helped to perpetuate.  To exacerbate his offenses, Trump repudiated the lie in an especially grotesque manner, using the event to claim his actions as some kind of personal achievement, all while peddling hotel rooms.  But there was more.  He compounded the birther lie with another tried-and-true Trumpist falsity: blame Hillary Clinton.  He claimed that she started the lie, contrary to all existing evidence (there is no evidence that Clinton ever personally believed or trafficked in the birther lie).  And yet he was still not done.  He also claimed to have finished the birther issue, despite overwhelming digital evidence actually showing him perpetuating his birtherism after the spring of 2011, when President Obama released his long-form birth certificate (the legitimacy of which Trump has repeatedly questioned in the years since).

Trump’s weak and rather pathetic self-repudiation event was, of course, the subject of much news and commentary.  But perhaps just as grotesque as Trump’s fabrication-renunciation was the effort by his supporters this weekend to defend Trump.  It was a humiliating spectacle, and one that should have embarrassed Republicans everywhere.

One of those defending Trump was New Jersey Governor Chris Christie.  Sigh.  This man was once a force of nature.  Smart, skilled, funny, tough.  He wasn’t an ideologue, and he had the right combination of experience to be a major national figure.  Now, he’s relegated to defending Trump’s birtherism.  This once credible and serious man now spends his days playing the role of Grover Dill to Trump’s Scut Farkus.

Yesterday, Christie’s complications deepened.  During the “Bridgegate” trial in New Jersey, where federal prosecutors have charged two Christie aides with crimes related to civil rights deprivation and misuse of federal program funds, the prosecution stated that it had evidence that Christie knew of the lane closures at the George Washington Bridge.  This is a claim that Christie has repeatedly denied.  And now career federal prosecutors are prepared to counter his denial.

It is not yet clear how the Government will prove this up, or how significant that the evidence is.  If all they have is the testimony of their main witness, another former Christie associate and Port Authority official, the claim may ultimately appear thin.  This may well be a question of credibility.  Moreover, when Christie learned of the lane closures, if he did, might also matter.  Learning about it as it happened, one might argue, is different from learning about the plan before it happened and giving approval.  I am not yet persuaded that this is quite the bombshell that it appears to be.  Notably, the Feds have not as yet decided to prosecute Christie.  And it is unclear what the charges against him would include (conspiracy?  false statements under 1001, if Christie lied during his interviews with investigators?).

But let us assume that Christie is never prosecuted (and that, I think, is the likely outcome here).  Does this actually hand the Clinton campaign some ammunition?  After all, Chris Christie is the one who “prosecuted the case” against Clinton during the Republican convention, despite no formal charges ever being brought against her.  Christie’s case: a major political figure in a position of power broke the law, put lives at risk, misled people about the nature of her actions, and then avoided criminal prosecution because of who she is.  Is that not the very narrative that Clinton could run against Christie?

Governor Christie may well avoid facing any legal consequences in the Bridgegate scandal.  Indeed, perhaps he did nothing wrong and has been entirely honest with the public and with investigators.  But if the trial’s opening day is really an indication of what is to come, the scandal could create an insoluble political problem for Christie – and for those who would be pushing for Christie’s high place in a Trump Administration.

Can the federal felon-in-possession ban violate the Second Amendment?

In District of Columbia v. Heller, the Supreme Court ruled that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation.  But the Court was careful to limit that right.  It did not invalidate, the Court explained, restrictions on the commercial sale of firearms, or on possession in sensitive public places, or of “dangerous and unusual weapons.”  Nor did the Second Amendment cast doubt on “longstanding prohibitions” on possession by “felons and the mentally ill.”  Yet, this week, the United States Court of Appeals for the Third Circuit held that in some limited circumstances, as applied, the federal felon-in-possession ban is unconstitutional under the Second Amendment.  The opinion in Binderup v. Attorney General is here.

It is a remarkable holding – no federal court has previously held the felon-in-possession ban unconstitutional – and a deeply divided one.  The en banc court split 8-7, with 3 judges writing the lead opinion and 5 judges in the majority writing separately.  The slip opinions total 174 pages.  Eugene Volokh has a good breakdown of the case here, helpfully discussing the rationales of the different voting blocs.

The case involved two lead plaintiffs who challenged the constitutionality of 18 U.S.C. 922(g)(1), the so called “felon-in-possession” law that makes it a crime for a person to possess a firearm where that person has been convicted of a crime that is punishable by at least a year in prison.  There are some exceptions, such as if a state law punishes the crime by 2 years or less and classifies it as a misdemeanor, or where the conviction has been expunged, or set aside, or where the person received a pardon, or where the person’s civil rights had been restored by law.  See 18 U.S.C. 921(a)(20).

To summarize, according to the court’s description of these cases, Daniel Binderup had a consensual sexual relationship with a 17-year-old co-worker (Binderup was 41).  Although the girl was over the legal age of consent for sex in Pennsylvania, Binderup was nonetheless convicted of the misdemeanor of corrupting a minor.  That offense is punishable by up to five years imprisonment in Pennsylvania.  Binderup, though, received three months probation and a $300 fine.  He has no other criminal history.

Julio Suarez had a previous conviction in Maryland for carrying without a license.  That offense was a misdemeanor, punishable by no more than 3 years.  Suarez received a year of probation, a suspended jail term, and a $500 fine.  He now lives in Pennsylvania, and is a government contractor with a “Secret” security clearance.

Both men are now allowed to possess guns under Pennsylvania law, having successfully petitioned for restoration of their gun rights.  But 922(g)(1) still bars them from possessing guns as a matter of federal law, because none of the statutory exceptions applies to them and the Attorney General did not grant them relief.  So they challenged the validity of 922(g)(1) as applied to them, saying that the ban prohibits them from purchasing firearms for self-defense.  They each prevailed in their respective district courts on their Second Amendment claims, and the cases were consolidated at the Third Circuit.

The entire set of opinions is worth reading, but here is the summary of what is now the law of the Third Circuit, found at page 40 of the lead opinion.  According to the court, first, as-applied challenges to the felon-in-possession ban, under the Second Amendment, are still reviewed under the two-step framework from the court’s earlier decision in United States v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010).  Second, as to the first step, the challenger must prove that the challenged law imposes a burden on his Second Amendment rights.  Third, the challenger must have no convictions involving a serious crime.  Fourth, rehabilitation or likelihood of recidivism is irrelevant.  Fifth, the “considerations discussed above” will determine whether the underlying crimes are serious ones.  And sixth, once the challenger has satisfied step one, then the Government bears the burden of showing that the law survives intermediate scrutiny (a substantial relationship to an important government interest).

Because of the nature of this holding, and its significance to many convicted persons who may wish to own a firearm but are unable to do so, I suspect this may finally be a case in which the Supreme Court has some interest.  I have noted before that the Court’s failure to take any cases since Heller has created substantial confusion among lower courts as to the proper standards to apply in a Second Amendment challenge.  This case has many of the ingredients that should appeal to the Court: it breaks with other federal circuits, was decided by a fractured en banc court, involves a matter of federal constitutional law, and concerns a matter of substantial public importance.

But before we get too excited about this case receiving a cert grant, a caveat is in order.  This holding would not apply, it appears, to felons.  Binderup and Suarez are misdemeanants, not felons, because that is the label that state law gave to their offenses.  As the lead opinion noted, the “misdemeanor” label generally conveys a lack of seriousness, but the same cannot be said of offenses labeled as a “felony,” even if the available term of imprisonment is comparatively short.  This case, then, does not protect those offenders whose crimes of conviction are presumptively serious (as “felonies”), though note 6 of the lead opinion states that such a challenge may at least be theoretically possible after Heller (though the same note also explains that the challenger’s burden in such a case would be “extraordinarily high – and perhaps even insurmountable”).  As to what constitutes “seriousness” (point 5 of the lead opinion’s summary of the law of the circuit), though there was disagreement on the court, the lead opinion also looked to whether the crime was violent or involved force or the threat of force, whether the ultimate sentence was comparatively minor, and whether there is some “cross-jurisdictional consensus” about the seriousness of the underlying conduct.

So the question is open: when, if ever, can a person with a felony conviction have a Second Amendment right to possess a firearm?  That is, which previous crimes are so serious as to warrant the conclusion that the person is not a virtuous enough citizen to be entrusted with the possession of a firearm?

An equally interesting scenario, though perhaps highly unlikely, would exist if Congress considered amending the statute to either more narrowly define the types of offenses that qualify for the ban, or to at least exclude misdemeanors of a certain kind (e.g., those that do not involve force or violence).  One might imagine that a Congress protective of gun rights, and of a broad interpretation of the Second Amendment, might be inclined to narrow the scope of federal gun control laws – and there are few federal gun control laws with more prosecutorial potency than the felony-in-possession statute.  But I suspect that congressional tinkering with the gun possession statutes will not happen, even in this Congress, particularly if Congress feels that federal courts are now in the business of narrowing the reach of the statute through constitutional litigation.

Can medical marijuana card holders buy or possess guns?

Following up on my last post – which dealt with the Ninth Circuit’s decision on the Justice Department’s power to proceed with criminal prosecutions under the Controlled Substances Act, in light of an appropriations rider defunding some such prosecutions – the Ninth Circuit yesterday issued another important decision on federal criminal laws related to drugs, this time in the context of federal gun law.  The decision in Wilson v. Lynch is here.

It is a federal crime for an unlawful drug user or addict to possess a firearm.  18 U.S.C. 922(g)(3).  It is also a federal crime to sell a firearm to a person with knowledge, or reasonable cause to believe, that the person is an unlawful drug user or addict.  18 U.S.C. 922(d)(3).  It is further unlawful to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance (like marijuana).  21 U.S.C. 841(a).

According to the court, Rowan Wilson was issued a Nevada marijuana registry card under Nevada state law.  But when she went to purchase a gun from a gun dealer in Nevada, the sale was denied on the ground that she was an unlawful user, or reasonably believed to be, of a controlled substance.  The seller was aware of the ATF’s Open Letter of September 21, 2011, which instructs firearms licensees that they cannot sell a gun to someone who is an unlawful user, even if state law allows use of medical marijuana.  Wilson filed suit against the Attorney General of the United States and the ATF, challenging the constitutionality of sections 922(g)(3) and 922(d)(3), as well as the Open Letter and the ATF’s implementing regulations (27 C.F.R. 478.11).

The Ninth Circuit held that she lacked standing to challenge section 922(g)(3) because she does not allege that she is an unlawful user or an addict, nor does she allege that she received or possessed a firearm, for which she would be subject to prosecution.  But the Ninth Circuit held that she had standing to challenge section 922(d)(3), because the legal standard under that statute prevented her from purchasing a firearm (and thus she was injured).  So the court proceeded to consider her constitutional claims on the merits.

The leading issue was whether the laws violated her Second Amendment rights.  The Court said it did not.  Binding precedent in the Ninth Circuit holds that the Second Amendment does not protect unlawful drug users.  See United States v. Dugan, 657 F.3d 998 (9th Cir. 2011).  However, the court took it as true that Wilson was not actually an unlawful drug user (she said that although she has a card, she has chosen not to use medical marijuana).  So the court could not apply its precedent as applied to someone like Wilson.

Instead, applying another circuit precedent, United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013),  that adopts intermediate scrutiny under the Second Amendment, the court said that the federal laws at issue did not severely burden the exercise of her right to possess a firearm; they merely prohibited the sale of a firearm to her.  The court further explained that recent research showed a “significant link” between drug use (including marijuana use) and violence, conclusions supported by the legislative branch, as well.  “It is beyond dispute,” the court said, “that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”  The court also said that such users are more likely to have “negative interactions with law enforcement officers” and to be connected to “black market sources who themselves frequently resort to violence.”

So, despite the fact that registry cardholders and unlawful users are not necessarily the same, there is at least a reasonable fit between the federal laws here and the Government’s interest in reducing gun violence.  Even assuming that such laws could lead to some burden on Second Amendment rights, those burdens are minimal, the court held.

The Court also denied Wilson’s challenges based on the First Amendment, the Due Process Clause and the implied equal protection component of the Fifth Amendment, and the Administrative Procedures Act.

One key to understanding the significance of the issues in this case is the court’s assessment of the links between marijuana use and violence.  Although this assessment could have been more comprehensive in the opinion, it is worthy of serious consideration, and undermines many of the arguments made by advocates of more liberal marijuana laws.  Another key, though, is the holding that Wilson did not have standing to challenge section 922(g)(3).  In holding that the challenged laws – 922(d)(3), the regs, and the Open Letter – did not severely burden her core Second Amendment rights, the court relied upon the fact that she could have amassed guns before getting her registry card, and that she could have surrendered her registry card later in order to buy a gun.  See Slip op. at 14-15.  But the point of her challenge was to say that, as long as she is a registry card holder, she now cannot lawfully possess a gun for purposes of self-defense because of section 922(g)(3).  Is it, then, illusory to say that the sale provisions do not severely burden her rights, when she could not lawfully possess a gun anyway?  In other words, Wilson might say, while the sale ban in federal law might not have severely burdened her rights, the possession ban does.  Hence the importance of the finding that she did not have standing to challenge the possession statute.

Although the result may turn out to be the same – particularly if based on the link between drug use and violence and the reasonableness of the Government’s interests in forbidding gun possession by drug users – this question would at least be far trickier for federal courts if it is brought by someone with standing to challenge the possession ban of section 922(g)(3).

Ninth Circuit: Feds cannot prosecute CSA violators in medical marijuana States, sort of, for now

The United States Court of Appeals for the Ninth Circuit issued a significant ruling on the criminal enforcement of federal drug law yesterday.  In United States v. McIntosh (here), the court held that, where a defendant is fully compliant with the laws of a designated medical marijuana state, the Justice Department cannot engage in a federal prosecution of that defendant under the Controlled Substances Act.  The key limitation on the ruling for marijuana growers and dispensers, however, is that they must be in compliance with state law.

The case involves the consolidation of multiple federal prosecutions under the CSA.  According to the Ninth Circuit, in one case (McIntosh), the co-defendants were accused of running businesses in Los Angeles that dispense marijuana.  The Government also accused them of managing indoor grow sites in L.A. and San Francisco.  In another California-based prosecution (Lovan), federal and county law enforcement agents allegedly found more than 30,000 marijuana plants while executing a federal search warrant.  In a third prosecution (Kynaston), the Government alleged that, in the course of executing a warrant under Washington state law, investigators found over 1,100 marijuana plants (some growing, some, the court observed, with “root structures of suspected harvested marijuana plants”).  In each case, the defendants were indicted on federal criminal charges under the CSA.  The Kynaston case also involved charges under federal gun laws.

Although many States have moved in the direction of liberalizing their own drug laws, the federal government has not.  It remains a federal crime to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance – among them, marijuana (still a Schedule I controlled substance).  See 21 U.S.C. 841(a).  But in 2014, and again during the appropriations battles in 2015, Congress passed an appropriations provision which says that in certain states (including California and Washington), the Justice Department may not spend any funds to prevent these states from implementing their own laws respecting medical marijuana.  See Section 542 of the Consolidated Appropriations Act of 2016.  So, the defendants in these cases sought to dismiss their indictments and obtain mandamus relief from the Ninth Circuit, alleging that the DOJ’s prosecution of them violated section 542 and that any effort by the DOJ to spend funds on such a federal prosecution would violate the separation of powers (by violating the Appropriations Clause, i.e., the executive spending money not appropriated by Congress).

The court agreed.  But the decision was not as sweeping as it might have been (or as some might think that it is).  This decision does not categorically forbid federal drug prosecutions involving marijuana.  Rather, the court interpreted section 542 to forbid DOJ from preventing the implementation of specific state law rules regarding the “use, distribution, possession, or cultivation of medical marijuana.”  But DOJ has the power to prosecute private individuals who violate the CSA and who are engaged in conduct not authorized by state law.

Moreover, as the court explained, not only is the text of the legislation subject to a limited interpretation, the rider itself has a temporal limit.  The court rightly noted that Congress could alter the existing rider by repealing it and appropriating funds to the DOJ.  Or, as the court said, Congress could enact a similar rider in future appropriations legislation (this legislation is good only for FY 2016, so it expires at the end of September – unless renewed, DOJ could then proceed with any prosecution not otherwise barred by law or the statute of limitations).  Moreover, the text of the rider applies only to States with respect to medical marijuana.  The legislation does nothing to prevent the DOJ from prosecuting those persons who violate the CSA in states that are not among those listed (say, West Virginia or North Carolina or South Dakota).

Still, there is an interesting separation of powers argument here that was not included in the court’s discussion, and perhaps was not even raised by DOJ: can Congress use its spending and appropriations powers in a way that interferes with the authority of the executive branch to carry out its constitutional function of taking care that the laws be faithfully executed?

To be sure, the spending power is among Congress’s most important weapons for setting national policy and forcing State compliance with Congress’s will.  But this law is different than a garden-variety conditional spending bill: it actually protects the states against another branch of the federal government, the executive.   One of the recognized limits on the spending power is that Congress cannot condition spending in way that compels states to violate some other constitutional provision (i.e., an independent constitutional bar, see South Dakota v. Dole).  But again, the instant legislation is different: the issue is whether the “independent constitutional bar” limitation includes the constitutional powers given exclusively to another branch of the federal government.

Congress was not saying here that the CSA was no longer a “law” that the executive has a duty to enforce.  Nor did Congress say that the CSA was unconstitutional, and we know that the Supreme Court has upheld Congress’s power to enact the CSA and permit its enforcement even in states with more liberal state drug laws.  See Gonzales v. Raich.  Congress simply said that, in these states, the executive cannot spend funds in a way that prevents these States from implementing their laws (which, practically, forbids federal prosecution).  And Congress has appropriated money for criminal prosecutions generally, just not for these.  So is the executive’s power to enforce the law a constitutional bar to Congress’s use of the spending power to prevent the use of federal funds for a particular kind of prosecution?  In other words, can Congress use the spending power to limit prosecutorial discretion?

I suspect most would say that the spending power extends to this kind of limit on executive power; in other words, this kind of law is a valid exercise of Article I power.  But I detect a separation of powers issue here that might be worth exploring further.