Suspected thief turns out to be felon in possession, but gun turns out to be inadmissible

Sometimes a federal gun possession crime results from an investigation specifically directed at the gun offense.  Sometimes, however, gun crimes result from investigations that have nothing to do with guns.  Just ask Phillip David Hernandez, who had an encounter with police as he walked next to a construction site that was located in a high-crime area and that was known for being the target of thieves interested in the construction materials there.  Did the police encounter turn up any stolen construction materials?  Nope.  It turned up a gun – which, as a convicted felon, Hernandez was not permitted to possess.  His case raises the question: was he “seized” for purposes of the Fourth Amendment when police questioned him from their patrol vehicle as he walked near the construction site?  If not, then the gun is admissible against him because the encounter is a “consensual” one, and does not implicate the Fourth Amendment.  But if it was a seizure, then the police have to demonstrate reasonable suspicion for the stop.  Can they?

According to the Tenth Circuit’s opinion in United States v. Hernandez, in October 2014, Denver police spotted Hernandez walking next to the construction site.  He wore all black clothing and carried two backpacks.  The site had been the subject of recent thefts of various materials, including sheet metal and copper piping.  Police suspected Hernandez might be serving as a lookout for thieves, though there was no one else around.  The officers also found it odd that Hernandez did not use the sidewalk on the other side of the street, but instead walked next to the construction area, essentially in the street.

When the officers pulled alongside him, Hernandez kept walking, and the officers followed along in a moving vehicle.  They did not display weapons nor raise their voices.  When asked where he was going and where he had been, Hernandez said he was at his grandmother’s and was headed home.  He then said, upon being asked, that he could not remember his grandmother’s address.  When asked if he would stop walking and talk to the officers, Hernandez complied.  When asked, he gave his real name but a false birthdate.  The officers pulled up his information on their computer, and it showed Hernandez’s mug shot and that he had violated parole, for which there was an active warrant.  He was informed of the warrant and approached by the officers on foot, and he began to walk away.  He reached for his waistband and an officer asked if he had a gun.  He said “yes,” the officer grabbed his arm, and a revolver fell to the ground.

Hernandez was indicted for being a felon-in-possession, 18 U.S.C. 922(g)(1), and filed a motion to suppress, which the district court granted.  The Government appealed.  The Tenth Circuit affirmed the suppression of the gun.

Was Hernandez seized?  Yes, this was a seizure that required reasonable suspicion, according to the court.  While this began, as do many police encounters on the street, as a consensual encounter that required no justification, it became a seizure when the officers asked Hernandez to stop walking and talk to them.  This was the point at which a reasonable person would not have felt free to terminate the encounter and continue on his way – considering that that it was dark, there were no other people around, and the request to stop was made by two uniformed officers who had been following him.  As the court put it, “a reasonable person would have believed that compliance with the ‘request’ was not optional.”

Now that we know he was seized, was there reasonable suspicion that would have justified the seizure?  No, the court said.  The police stop of Hernandez was, rather, based on “inchoate suspicions and unparticularized hunches,” the court wrote.  They had no evidence specific to Hernandez that he had committed any crime, and the mere fact that he was walking next to a location that had been the subject of previous criminal activity is not enough to make their suspicion of him reasonable.  Neither was the fact that he was in a “high-crime” area, or that he wore all black and had two backpacks, or that he chose not to use the sidewalk.

What about the fact that he could not recall his grandmother’s address?  The court found that the Government had not relied upon this argument previously, and should not be able to rely upon it now on appeal.  Still, that fact would not be entitled to much weight, the court said.  When each officer testified, neither relied upon this fact to establish their suspicions about Hernandez, “which,” the court said, “is understandable because ordinary experience tells us that a grandchild who knows the familiar way to his grandmother’s house may well not know her exact street address.”

A final aspect of this case is notable.  Could the Government have argued that the finding of the gun was sufficiently attenuated from the initial unlawful stop, given the existence of the active warrant for Hernandez, a la Utah v. Strieff?  Recall that in Strieff, the Court applied the attenuation doctrine to hold that the discovery of an untainted warrant breaks the link to an unlawful Terry stop.  As it happens, Strieff was decided after briefing and argument in Hernandez.  But the Government never relied on attenuation in the district court, and so had waived that argument on appeal.  Before Strieff had been decided, the Tenth Circuit noted, two other circuits followed the same rule that was ultimately recognized by the Supreme Court in Strieff.  So the attenuation argument was available to the Government, but the Government did not pursue it.

Query whether, had the attenuation argument been properly before the Tenth Circuit, Strieff would make the gun admissible.  Applying the Brown factors, as did Strieff, the Government would have had a persuasive argument that the discovery of the warrant here was an intervening circumstance that makes the gun admissible.


“Send in the Feds”? Don’t bother, they’re here.

Keeping up with President Trump’s Twitter activity is a full-time job, and I don’t have that kind of time.  So I rarely find it useful to comment on any of his Tweets.  I could not, however, resist responding to one from late last night, in which he makes a statement about the violence plaguing Chicago: “If Chicago doesn’t fix the horrible ‘carnage’ going on . . . I will send in the Feds!”

What does that even mean?

Chicago – a great American city by any definition – is home to a busy United States Attorneys Office, and field offices for the FBI, DEA, and ATF, among others.  Federal prosecutors and other law enforcement personnel in Chicagoland – among the brightest and most talented in the Nation – routinely work on violent criminal cases within federal jurisdiction.  Even a cursory look at the press releases for these federal offices shows that they have been busy using federal resources to fight Chicago’s dire crime problem (which seems connected in substantial part to a drug trafficking and gang problem).  See, e.g., here, and here, and here, and here, and here, and here.

In other words, what kind of federal role in Chicago does President Trump envision that does not already exist there?

One possibility is that he is not talking about policing and prosecution at all, but rather is talking about using National Guard troops.  That would raise serious legal issues, if the troops are called upon to engage in civilian law enforcement.  The image of uniformed military and even of military weaponry constantly patrolling Chicago’s streets is not an image of America becoming great again.  Another possibility is that he is talking about sending more federal money or other resources to Chicago to help combat the problem.  That would be welcome news to city and state officials in Chicago, I imagine (see a Chicago Tribune piece here).  But that is not typically what one would think of when hearing “send in the Feds,” a phrase that suggests a substantial physical presence by federal officials.  Perhaps even more agents and AUSAs could be placed there; perhaps federal drug and gang task forces there could be enhanced and better funded.  I would favor that move.  But let’s be clear: that’s not sending in the feds – that’s sending in more Feds.

Finally, while there is certainly a robust federal law enforcement role where the violent criminal activity involves guns, gangs, and/or drugs, does the President believe that the federal government should supplant the role of city and state officials in ordinary law enforcement involving street crime merely because the city and state are failing to curb the crime rate?  It is true that federal criminal law offers an expansive role for the Feds in this regard, but a more expensive role for the federal government is not something that conservatives and Republicans have typically defended, preferring instead that most criminal law enforcement be done at the state and local levels.  I can’t imagine intellectually honest conservatives going along with the idea of a wholesale federalization of criminal law enforcement in a major American city.

So if the President simply means ensuring a federal role in cooperation with the city and state role, then I must ask again: how is that different from the existing situation?

The President’s Tweet therefore raise two distinct questions.  First, is he even aware of, or does he understand, the rather extensive law enforcement role of the federal government in Chicago already?  And second, how does he envision the federal role there – or in other cities – in the scheme of constitutional federalism?

Unlike others who have been critical of the President’s focus on crime, I applaud the President for tackling this issue at a time when “criminal justice reform” rhetoric has often obscured a discussion of the need for aggressive approaches to criminal violence (including gun violence and drug trafficking, two things that often go together and that are plaguing Chicago).  And there is no question that the federal criminal law provides legal mechanisms for an aggressive federal approach to the kinds of violent crime that Chicago has been experiencing.  But those mechanisms are already at work in Chicago.  Maybe they should be even more robust.  But perhaps the President could be clearer about his federal prosecutorial priorities and his understanding of the Constitution’s limits on enforcing them.

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).

What does Trump really believe about gun rights?

As Donald Trump continues to demonstrate his predictable weakness as a presidential candidate, and as he becomes increasingly dogged by abysmal numbers in nationwide and swing state polls, he further confirmed his weaknesses and the claims of his critics yesterday with his remarks about Hillary Clinton, judicial appointments, and the power of the “Second Amendment people.”  Politico story here.  But in spite of all of the (legitimate) furor over these remarks, and others, Trump has actually received a pass from journalists and others on the substance of the Second Amendment.

People like me have tried to show that Trump is weak as a constitutionalist (which is to say, he is not one).  And yet the one provision of the Constitution that he mentions with some regularity is the Second Amendment.  Indeed, yesterday’s incident arose precisely in the context of Trump attempting to persuade the crowd that Clinton’s judicial appointments would be hostile to Second Amendment rights.  So the question necessarily arises: what are Trump’s views on the scope of those rights?  Just how strong of a defender of the Amendment is he?  What, if any, gun controls would he support?  Unfortunately, like all of his other views, it seems, his views on the Second Amendment are utterly incoherent – the stuff of sloganeering and bluster, but unaccompanied by much in the way of substance.  And yet no one seems interested in asking him precisely about his views, as a way of clarifying them, if nothing else.  If Second Amendment rights are as important as he seems to think, should we not have a better understanding of his views on this subject?

Because the Supreme Court held in Heller that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation, only the Supreme Court could reverse that decision and interpret the Second Amendment in some more limited fashion (e.g., that it only protects rights to keep and bear arms when connected to militia service).  And in order to do that, a case would need to arise in which some gun restriction was challenged as violating the Second Amendment.  Now, there are plenty of those kinds of cases out there, though the current Supreme Court seems mostly uninterested in them.  But this raises the question: how would Trump himself – much less his appointees – view the constitutionality of the gun law that would be at issue in such a case?  In order to know that – and the answer to that question could well inform his choice of judges – we would need to know more about how broadly, or narrowly, he views the Second Amendment.  He has never told us, though he claims to be “strong” on the Second Amendment.  In other words, how different really are Trump’s views on gun rights from those of Clinton, and how different would their judicial appointees be on these questions?

For example, does Trump believe that background checks are unconstitutional?  Does he believe that felons and the mentally ill should have Second Amendment rights to keep and bear arms (Heller says they do not: does he agree?)?  What about unlawful drug users?  What about service members who have been dishonorably discharged?  What about persons with misdemeanor convictions for domestic violence?  See Voisine v. United States (Thomas, J., dissenting).  Does he believe that it should be illegal to possess a firearm with an obliterated serial number, or is that unconstitutional?  Does Trump believe that the Second Amendment protects the right of a minor to possess a handgun?

His website demonstrates the incoherence of his views.  There, he claims what at first appears to be a remarkably broad understanding of the Second Amendment, and yet he says we must “enforce the laws on the books.”  What does that mean?  Are none of the “laws on the books” a violation of Second Amendment rights?  If he is willing to “enforce the laws on the books” – there are many – does that not mean that he supports substantial gun controls?  And how, if he does, would that go over with the “Second Amendment people” to whom he regularly panders?  His site also claims that gun and magazine bans are ineffective.  But are they unconstitutional?  What about the federal machine gun ban?

It turns out, these are critical questions for any presidential candidate who claims a belief in expansive Second Amendment rights.  That is because these questions each refer to federal gun laws that the president has the obligation to enforce – unless, of course, they are unconstitutional.  So Trump has a dilemma: if he believes that these laws violate the Second Amendment, surely he must refuse to enforce them and appoint judges who would strike them down, if challenged.  And yet, the president also must appoint the Attorney General, the Deputy Attorney General, the Assistant Attorney General for the Criminal Division, and the various United States Attorneys – all of whom play a role in the enforcement of these very federal gun laws.  So, will Trump’s law enforcement appointees enforce these gun laws (after all, he is the candidate of Law and Order, don’t you know), or will he only appoint people who will refuse to enforce them, on his orders, because the laws violate the Second Amendment?  Will he only appoint judges who declare their view that these federal gun control laws are unconstitutional?

Trump, and groups like the NRA, have tried to make gun rights an issue in the campaign.  (The NRA has this new ad up accusing Clinton of hypocrisy because she is surrounded by armed guards; it’s not clear how that makes her a gun rights hypocrite, as her Secret Service protection is a function of federal law.  Such an ad would make sense if, for example, Clinton acknowledged that she privately possessed a gun for self-protection but opposed allowing others to do so; that would be hypocrisy.  But that is not the NRA’s claim.).  Such a focus might have been useful in the primaries.  But in the general election, how does Trump benefit from an appeal to those with the broadest view of gun rights?  My sense is that those voters are already with Trump and highly unlikely to support Clinton.  He gains nothing electorally by clinging to a near absolutist position on gun rights.  If Trump wants to expand his support, he would be better served by appealing to those who support some gun controls.  But one of Trump’s major mistakes this summer has been assuming that the primaries and the general are indistinguishable.  Perhaps he believes that any expression of support for gun control will jeopardize his position with the most ardent defenders of gun rights in his base – even though he professes a desire to “enforce the laws on the books.”  Hence the incoherence.

Many are penning the first drafts of the Trump campaign’s obituary.  It is easy to see why.  I would be cautious, though.  For all of the pathetic whining that his campaign does about the media, it is hard to imagine a candidate who has ever benefited from media coverage the way that Trump has.  He is where he is today because of the media.  And the media, again, has given him a pass on so many problematic subjects, including his views on gun control and gun rights.  Three months is an eternity in politics, Clinton remains vulnerable, and it is not inconceivable that Trump could close the gap before the debates (more on that later).  So Trump’s electoral problems, while deeply serious now, may not yet be insoluble.  But his knowledge and preparedness problems almost certainly are.


Gun rights, criminal law enforcement, and Justice Thomas

The officer-involved shootings in Baton Rouge and Minnesota last week – combined with the premeditated, cold-blooded murders of five Dallas Police officers, with a firearm – remind us once again of the complicated legal and political issues created by gun violence.  In Dallas, it is notable that the killer did not target vulnerable people in a gun-free zone; he targeted law enforcement officers in public that he knew were armed, and trained to kill with their own guns.  In Baton Rouge and Minnesota – where we are still learning additional facts, making it premature to draw definite conclusions about the legality of the official conduct there – the legal issues are potentially even more complex because they concern the intersection of gun rights and Fourth Amendment law.  I have posted previously (here and here) on the Fourth Amendment issues being created by the liberalization of gun laws around the country.  One persistent problem involves the ways in which a broad reading of gun rights, combined with an accordingly narrow reading of search of seizure powers, could place law enforcement officers in the untenable position of knowing that a person is armed but lacking the power to temporarily detain and disarm them, absent some additional reasonable suspicion beyond the fact that the person is armed.

With that in mind, I want to shift to an interesting but slightly different gun rights problem, one that Justice Thomas raised at the end of the Supreme Court’s term.  In his dissent in Whole Woman’s Health v. Hellerstedt, the Texas abortion law challenge, Thomas writes that, “[t]he Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution.  But our Constitution renounces the notion that some constitutional rights are more equal than others.”  He continued, “[u]nless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

I am not sure to what he is referring when he speaks of “many” enumerated rights being disfavored, but I am confident he is referring to one in particular: the Second Amendment right to keep and bear arms.  I have such confidence because on the same day, in Voisine v. United States, Justice Thomas offered an even more comprehensive criticism of what he views as the disfavored nature of Second Amendment rights.  In Voisine, Thomas – speaking only for himself, as Justice Sotomayor joined only the first two parts of his dissent, but not Part III – explains that the federal law at issue has the effect of imposing a broad disability on gun ownership, a decision that is left to the discretion of federal and state prosecutors.  “We treat no other constitutional right so cavalierly,” he said, explaining  that a majority of the Court would likely not approve of a law that imposed a lifetime ban on publishing by a person convicted of misdemeanor libel.  He also repeated a line that he used previously in dissenting from the denial of certiorari in a Second Amendment challenge, saying that “the Court continues to ‘relegate the Second Amendment to a second-class right.'” (quoting his dissent in Friedman v. Highland Park).

What was especially notable about his Voisine dissent, though, was his observation about the limits on gun rights.  He acknowledged the limitations described in District of Columbia v. Heller, and appeared to concede that gun rights are not absolute.  But then he noted the broad disabilities approved in Heller – presumptively valid prohibitions on possession by dangerous persons, specifically felons and the mentally ill – and described this as merely dicta.  Apparently, Thomas would approve of narrow gun regulations that “neither prohibit nor broadly frustrate” the exercise of Second Amendment rights.  But the disabilities placed upon felons and the mentally ill, for example, are so broad that they would be valid only when applied to those who are not the “people” protected by the text of the Second Amendment.

Is Justice Thomas suggesting that the firearm possession prohibitions in 18 U.S.C. 922(g) – which impose broad disabilities on a wide variety of citizens, from felons to the mentally ill to unlawful drug users to persons dishonorably discharged from the armed forces to persons convicted of misdemeanor crimes of domestic violence – are unconstitutional?  Is he suggesting that one of the most important gun regulations in the federal criminal law arsenal – the felon-in-possession law – is invalid?  That strikes me as a remarkable position to take, especially in light of the fact that Thomas joined the Heller majority opinion.  But Thomas’s description of this language in Heller as mere dicta, and his concern that these kinds of gun regulations sweep so broadly as to forbid firearms possession “at all times and in all places,” certainly suggests that Thomas is thinking in these terms.

I will be interested in seeing whether future constitutional challenges to the 922(g) prohibitions make use of Thomas’s language from Voisine.  I cannot imagine there are any other votes on the current Court for such a reading of the Second Amendment.  Such a reading would surely frustrate the enforcement of much federal criminal law, and runs counter to the claims of many gun rights advocates who say they still want to “keep guns out of the hands of criminals” and other dangerous people.  Perhaps this is not what Thomas was getting at.  And perhaps he would approve of similar gun possession bans that are narrower in scope (say, a ban for a definite time period).  But his language seems at least to be a nod in the direction of Second Amendment rights that are broader than those recognized in Heller.

Important Second Circuit decision on executing arrest warrants and the Payton/Steagald dilemma

Last month, I posted on the important Fourth Amendment question regarding the standard for determining whether police have “reason to believe” a suspect is inside a particular residence, for purposes of executing an arrest warrant pursuant to Payton v. New York.  The United States Court of Appeals for the Second Circuit recently issued an important ruling on this and a related question, though in a slightly different factual context.  The opinion in United States v. Bohannon is here.

Law enforcement in Bridgeport, Connecticut had been investigating the Trumbull Gardens Organization (TGO) for narcotics and gun trafficking.  They had an arrest warrant for Jonathan Bohannon, and believed that he was at the home of Shonsai Dickson.  Her home was at 34 Morgan Avenue, though Bohannon lived at 103 Crestview Drive – two miles separated the residences.  FBI Special Agent Zuk made this determination based on several pieces of information provided by other law enforcement sources.

As the court described the information: 1) visual surveillance gave no indication that Bohannon was at his own home; 2) cell-site data from Verizon Wireless showed that his cell phone was used in a location that did not include 103 Crestview Drive; 3) cell-site data showed inactivity after 2:38 a.m., which led Agent Zuk to conclude that Bohannon had retired for the night somewhere other than his home; 4) the cell-site data showed only one address to which Bohannon had been linked, which was the Morgan Avenue home; 5) Dickson was known to the FBI because she was the lessee on an apartment where TGO members sold heroin; 6) visual surveillance showed a car registered to Dickson parked in front of Bohannon’s home only two weeks earlier; and 7) law enforcement saw Dickson’s car parked outside of the Morgan Avenue home on the day of the planned arrest.

Agents had an arrest warrant for Bohannon, but no warrant of any kind for Dickson.  They entered Dickson’s home through an unlocked door, found Bohannon in Dickson’s bedroom, and arrested him.  Later, and eventually with Dickson’s consent, agents seized crack cocaine and cash from under her bed; more crack cocaine, money, and a scale from a dresser; and three firearms and ammunition from a closet.  The court also noted that Bohannon helpfully shouted, “it’s all mine, don’t worry about it.”

Bohannon was indicted on a variety of federal drug and gun charges.  He moved to suppress the evidence seized from Dickson’s home and car.  The district court agreed in part and suppressed the evidence obtained inside the apartment (though not the car, holding that Bohannon had no reasonable expectation of privacy there).

On a pre-trial appeal by the Government, the Second Circuit vacated the suppression order.  The court agreed with the district court that no search warrant was necessary.  Recall that in Payton, the Supreme Court held that an arrest warrant is required to arrest someone in the home, absent exigency or consent, and where there is reason to believe the suspect is within.  A search warrant is not required under those circumstances.  A search warrant is required, however, when police wish to enter the home of a third-party, because the third-party’s interests would not be adequately protected by the arrest warrant for the suspect.  See Steagald v. United States.

Here, the agents violated Dickson’s rights under Steagald.  But Dickson is not the complaining party here; Bohannon is.  And the Supreme Court has never decided whether the subject of the arrest warrant (here, Bohannon) can object under Steagald; if not, then only the third-party (here, Dickson) can do so.  The Second Circuit therefore decided that issue and, consistent with the holdings of eight other federal circuits, held that the subject of the arrest warrant cannot invoke the protections of Steagald.

Having held that Payton, and not Steagald, applies, the court proceeded to determine whether the agents had “reason to believe” that Bohannon was at the Morgan Avenue home.  Recall that in my previous post on this subject, the Third Circuit concluded that “reasonable belief” equates to “probable cause.”  But I also noted that a few circuits had concluded otherwise, saying that the standard is less than probable cause.  The Second Circuit is one of those minority circuits, and here held that on this lesser standard, the agents had sufficient reason to believe that Bohannon was there.  Citing the information available to the FBI, the court said “the totality of these facts easily elevated such a suspicion well above the level of a hunch. Viewed in their totality, and in a commonsense manner, the record facts provided an articulable, objective reason to believe Bohannon might then be present in Dickson’s apartment.”

As I indicated previously, there is such a significant split of authority on the “reason to believe” standard that I am confident the Supreme Court will be presented with the opportunity to resolve the split.  Moreover, the Bohannon case would present the Court with an additional opportunity to resolve the uncertainty over whether the subject of an arrest warrant can claim the protections of Steagald.  This is essentially a standing problem (or what used to be viewed under the “standing” nomenclature).   The question is whether the suspect (the subject of the arrest warrant) can assert the protections of a case that was designed to protect the interests of the third-party in whose home he is found.  The Second Circuit here said the suspect has no greater rights in the third-party’s home than he does in his own home, where a search warrant would not be necessary (given the arrest warrant, see Payton).

One might argue that in light of the fact that social guests have reasonable expectations of privacy in the home of their host, they should be able to claim the heightened protections of Steagald.  But why should this fact matter?  The suspect also has an expectation of privacy in his own home, yet is not entitled to the protections of a search warrant there as long as a valid arrest warrant exists.  In other words, the arrest warrant suffices to protect the suspect regardless of his location.  As Steagald recognizes, the same cannot be said of the third-party in whose home the subject is found or in whose home the police are looking.  I think there is therefore substantial merit in the Second Circuit’s holding in this regard, though I also think it is worthy of clarification from the Supreme Court.