Tag Archives: SCOTUS

Supreme Court Denies Certiorari in ANOTHER Second Amendment Case

CourtBuilding.jpg

Once again the Supreme Court has denied certiorari in another Second Amendment Case. Silvester, et al. v. Becerra was an appeal from the 9th Circuit challenging California’s 10-day waiting period to firearm purchasers. In particular, the petition for certiorari raised the issue of whether the 9th Circuit “improperly applied lenient scrutiny in a Second Amendment challenge to the application of California’s full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit’s concerted resistance to and disregard of the Supreme Court’s Second Amendment decisions.” (SCOTUS Blog Case Summary).

220px-Clarence_Thomas_official_SCOTUS_portrait.jpg

Justice Thomas, once again, issued a scathing dissent from the denial of certiorari.  He noted that the analysis the 9th Circuit employed was “indistinguishable from rational-basis review.” For those readers unfamiliar with the levels of scrutiny, rational-basis is the lowest standard a court employs with respect to constitutional rights.

 …it is symptomatic of the lower courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right.

Justice Thomas continues “[i]f a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.”

Petitioners Jeff Silvester and Brandon Combs (Firearms Policy Coalition) brought suit challenging California’s 10 day waiting period under the Second Amendment, specifically that the waiting period was unconstitutional as applied to “subsequent purchasers”. The District Court entered a judgment for the Petitioners.

The District Court, after applying an intermediate scrutiny analysis, found that the waiting period was not reasonably tailored to promote an important government interest. It is at the District Court that findings of fact occur. The Court found, among other things, that twenty percent of background checks are auto-approved and took less than two hours to complete. Silvester v. Harris, 41 F. Supp. 3d 927, 964 (ED Cal. 2014). It also found that the arguments for the “cooling off period”, while novel, were inconclusive as to their effectiveness. Id at 954-955. The Court noted that the studies presented by the government, seemed “to assume that the individual does not already possess a firearm.” Id. at 966.

9th.png

California, unsurprsingly, appealed the decision to the 9th Circuit, which reversed the District Court’s judgment, upholding the 10 day wait period. The 9th Circuit, claimed to have applied intermediate scrutiny, but as Justice Thomas noted, “its analysis did not resemble anything approaching that standard.” Perhaps most egregious is that the 9th Circuit did not defer to the District Court’s findings of fact.

The Ninth Circuit’s deviation from ordinary principles of law is unfortunate, though not surprising. Its dismissive treatment of petitioners’ challenge is emblematic of a larger trend. As I have previously explained, the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment to the same extent that they protect other constitutional rights. (emphasis added).

The dissent shows Justice Thomas’s frustration with the Supreme Court’s continued denial of certiorari in Second Amendment matters. “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.”

Time will tell if the Court opts to pick up a Second Amendment challenge in the future. Justice Gorsuch joined Justice Thomas in his dissent from the denial of certiorari in Peruta v. California, signaling that he too believes Second Amendment issues are ripe for discussion.

 

screen-shot-2016-12-14-at-8-54-53-pm
Did you find this blog article helpful or informative? Be sure to pass it along to a friend who may benefit from the information by using the buttons below. Don’t forget to like Firearms Industry Consulting Group on Facebook by clicking the “Like” button on the right.
Advertisements

4 Comments

Filed under Firearms Law, Uncategorized

US Supreme Court Decision Affects Firearms Rights – Ability to Obtain Relief from Certain DUIs!

On June 23, 2016, the U.S. Supreme Court decided that case of Birchfield v. North Dakota, 14-1468, in which the Court held that while implied consent laws relative to driving under the influence (DUI) may impose civil penalties, it is unconstitutional for them to impose criminal penalties for refusing to consent.

Specifically, as the Syllabus to the decision declares:

Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. Pg 36-37

So how does this affect your firearm rights?

Under Pennsylvania law, if an individual refuses his/her consent relative to a second (or third) DUI, the criminal grading becomes a misdemeanor of the 1st degree, which is federally prohibiting for purposes of purchasing and possessing firearms and ammunition. I previously blogged about a similar situation in Pennsylvania, when the Pennsylvania Superior Court decided Musau. Unfortunately, as a result of the Superior Court’s decision, the General Assembly amended the statute, so that anyone who refused consent on a second (or third) DUI would be penalized by a misdemeanor of the first degree, instead of an ungraded misdemeanor (which would not be prohibiting under state or federal law).

As a result of the U.S. Supreme Court’s decision in Birchfield, those individuals in Pennsylvania who have been convicted or pled guilty to a misdemeanor of the first degree as a result of a second (or third) DUI, due to their refusal to consent, have been subjected to an unlawful sentence and have a limited opportunity to file for relief under Pennsylvania’s Post-Conviction Relief Act (PCRA).

Therefore, if you or a family member were convicted of a second or third DUI, where you refused to submit to chemical testing, contact us immediately, as you have the ability to petition the court to have your conviction properly reflect the grading as an ungraded misdemeanor, which would not trigger a state or federal firearms disability.

As Federal Firearms Relief is not currently available and the Pennsylvania Board of Pardons does not with any frequency grant pardons to those who have been convicted of repeat offenses, this may be your ONLY extremely limited opportunity to obtain relief!

Contact Us Today to Discuss YOUR Rights and How We Can Restore Your Right to Keep and Bear Arms – info@princelaw.com or 888-313-0416

3 Comments

Filed under Constitutional Law, Firearms Law, Pennsylvania Firearms Law

Drivers Beware: Unconfirmed Anonymous Tips Now OK For Traffic Stop Basis

By Allen Thompson, Esq.

In a close case, Navarette v. California, 572 U.S.            (2014), the Supreme Court of the United States ruled 5-4 today that an anonymous 911 call may serve as the sole basis for a lawful investigative stop, even where responding police officers cannot confirm the material facts of the call.

In the summer of 2008, an anonymous caller reported being run off the road by a Ford F-150 heading south on Highway 1 and gave the operator the license plate number. Responding to the call, Highway Patrol officers located the truck a few minutes later, followed it for about 5 minutes, and then pulled the driver over. Notably, the officers did not observe any erratic driving. Approaching the truck, the officers smelled marijuana and discovered 30 lbs. in the bed of the pickup. At trial, the defendants moved to suppress the evidence on the basis that the stop was unlawful, since the officers only had an anonymous, unconfirmed tip of erratic driving. The evidence was admitted and the driver and his passenger were convicted. The Supreme Court today affirmed the convictions.

Typically, the police must have some confirmation of a tipster’s information before making the investigative stop. Confirmation of the material facts of the tip is even more important when the tip is anonymous. For example, the Supreme Court has held that where an anonymous tipster informed police that a particular vehicle was carrying cocaine, the fact that the tip described the car down to the broken headlight and was able to describe the future route of the car from a particular apartment complex to a particular hotel, the tip was reliable enough to provide the reasonable suspicion necessary for an investigative stop. Alabama v. White, 496 U.S. 325 (1990). On the other hand, where the anonymous tip could only describe an individual, his location, and what he was wearing, the tip was not considered reliable enough to provide reasonable suspicion. Florida v. J.L., 529 U.S. 266 (2000).

What is troubling with the Court’s decision today is the minimal amount of articulable facts an officer may now rely on for reasonable suspicion. As Justice Scalia points out in his dissenting opinion (a relatively short, but biting, dissent), the only thing that the police could confirm prior to pulling over the vehicle was that there was, indeed, a silver F-150 with a particular license plate driving south on Highway 1.

Of primary concern is that nothing about the truck’s behavior indicated any criminal activity; the vehicle did not swerve, veer, slow down, speed up, etc. This led Scalia to note that, not only was the tip not corroborated, it was actually discredited, for the police could actually observe that no criminal activity was occurring.  And yet, the Court found the tip convincing in that it identified a particular vehicle travelling in a particular direction on a busy highway. Scalia correctly notes that “everyone in the world who saw the car would have that knowledge, and anyone who wanted the car stopped would have to provide that information. . . . [T]hat generally available knowledge in no way makes it plausible that the tipster saw the car run someone off the road.”

That is precisely why this case is disconcerting. As of today, anyone with a grudge against a particular driver may anonymously call 911 and have that person stopped. Of course, it is a crime to falsely report criminal activity, but that only punishes the tipster; it does nothing to protect against the unreasonable search and seizure of the driver.  And if the driver happens to have something illegal in the car, he still must answer to the criminal charges.

It is unfortunate that the Supreme Court has now essentially declared that we are all under reasonable suspicion the moment any person, under the full protection of the cloak of anonymity, reports that we are criminals. Justice Scalia is entirely correct when he laments that “[T]his is not . . . the Framers’ [concept] of a people secure from unreasonable searches and seizures.” Indeed, it is not.

3 Comments

Filed under Constitutional Law, Criminal Law, News & Events, Uncategorized

Supreme Court Rejects Limits on Total Political Contributions

By Allen Thompson, Esq.

Today, the Supreme Court of the United States struck down the limitations on the total amount of money an individual can contribute to the entire political process. McCutcheon v. FEC, 572 U.S.      (2014), concerned the aggregate contributions an individual can make to all political candidates within a specified amount of time. The case did not address the limits to contributions to particular candidates. Writing for the Court, Justice Roberts broke the case down along the typical First Amendment analysis: (1) is contributing money to the political process protected conduct, i.e. a First Amendment issue; (2) does the Government have a compelling interest in limiting that conduct; and (3) if the Government has a compelling interest, did it narrowly tailor its limitation to address its interest?

The Court found that an individual does have a First Amendment right to contribute money to the political process. Noting that while

[m]oney in politics may at times seem repugnant to some . . . so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades [all examples from prior Supreme Court cases] . . . surely it protects political campaign speech despite popular opposition.

Slip op., at 2.

Prior to the Court’s decision, once the aggregate limit was reached, the donor was prohibited from further contributions. In other words, the aggregate limits restricted the frequency with which a person may exercise his First Amendment rights to expression and association. The Court rightly held that the

Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.

Slip op., at 15.

The Court then analyzed the Government’s compelling interest, finding that preventing corruption in the political process was a compelling interest, at least so far as “corruption” was defined as quid pro quo contributions.

Campaign finance restrictions that pursue [other ends] . . . impermissibly inject the Government ‘into the debate over who should govern.’ And those who govern should be the last people to help decide who should govern,

wrote J. Roberts. Slip op., at 3.

The Court also found that the aggregate limits were not narrowly tailored. In other words, the aggregate limits were not closely enough related to preventing corruption to justify the infringement on First Amendment rights. In essence, the Court found that the aggregate limit ultimately restricts how many candidates the donor may contribute to and does nothing to prevent corruption. Justice Roberts wrote that

under the dissent’s view, it is perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a tenth.

Slip op., at 19. While the Court spent considerable time discussing the Government’s argument that an individual could circumvent the contribution limits to individual candidates by donating through other vehicles, it ultimately ruled that the current statutory restrictions on the total amounts an individual may contribute to any one candidate, committee, or PAC adequately protected against quid pro quo corruption.

In perhaps the most unsettling portion of the Opinion, Justice Roberts addressed the dissenting opinion and firmly rejected it. Roberts rightly dismissed the dissent’s troubling assertion that the “public’s interest” in “collective speech” could trump the free speech rights of the individual. Justice Roberts pointed out that the collective is the majority and that the majority can easily suppress minority speech by passing laws such as the one at issue here. Hence, the purpose of the Amendment in the first place (no pun intended). In refuting that view, J. Roberts wrote:

The First Amendment does not protect the government, even when the government purports to act through legislation reflecting ‘collective speech.’

Slip op., at 17.

While the Opinion is sure to upset many people, given the reaction to Citizens United four years ago, the ruling is firmly rooted in the core of the First Amendment’s protections. While acknowledging the corruption in politics and the worthwhile goal of preventing that corruption, the Court was able to see through the façade of the corruption argument and focus solely on the First Amendment issues at play: namely, that politicians cannot, after election, enact legislation to restrict others’ access to the political process. Politics is fraught with corruption – restricting citizens’ access to the arena will not increase it.

 

Prince Law Offices is dedicated to preserving the First Amendment rights of all individuals, as well as every one of our constitutionally protected rights. If you believe the government – be it local, state, or federal – has infringed upon your rights, call us at 888-313-0416.

2 Comments

Filed under Constitutional Law, News & Events, Uncategorized

Case to Watch: Drake v. Jerejian

By Allen Thompson, Esq.

UPDATE: The Supreme Court, on Monday, denied the petition, declining to accept the case for review.  No opinion was issued as to the denial.

UPDATE: The case has been distributed for today’s conference.

UPDATE: The docket now reflects that Respondents have timely filed their response.

The Supreme Court of the United States has decided not to hear several important firearms rights cases this year, setting aside such issues as: whether a concealed carry permit-holder residing at a house creates an exigent circumstance in which police do not have to announce their presence, and whether a 10-round magazine, deemed protected by the Second Amendment, can be prohibited as a safety measure.  However, one case is still standing and the Supreme Court is still receiving briefs on the merits.

 Drake v. Jerejian, Docket No. 13-827 (which started out life as Drake v. Filko), challenges New Jersey’s impossibly restrictive carry permit requirements.  In order to gain a carry permit in New Jersey, one must first demonstrate “justifiable need.”  To many people’s surprise, one can only show “justifiable need” in one of two ways: a specific threat against the person, or a significant enough history to demonstrate that need.  In addition, one must show that carrying a firearm is the only way to prevent harm from the attack.  Once local law enforcement signs off on the permit, an applicant still needs approval from the New Jersey Superior Court.  And, as Mr. Drake found out, even if the local law enforcement authorities grant the permit, the New Jersey State Police is still likely to appeal.

John Drake, Gregory Gallaher, Lenny Salerno, and Finley Fenton, along with the Second Amendment Foundation and the Association of New Jersey Rifle and Pistol Clubs, filed suit challenging the essential ban on carrying in New Jersey.  John Drake, who operates a business restocking and servicing ATM machines, necessarily carries large amounts of cash on him and desired to carry a firearm for protection.  After initially being approved by the local law enforcement agency, the New Jersey State Police appealed and the Superior Court reversed the LEO’s approval.  The current lawsuit was then filed and the denial was eventually upheld by the Third Circuit.  Petitioners then appealed to the Supreme Court, where the case currently sits, awaiting its fate.

To date, numerous heavy hitters have entered the arena as amici, or third-parties with some interest in the outcome of the case.  The NRA, the Claremont Institute’s Center for Constitutional Jurisprudence, and the Cato Institute have all filed briefs in support of the challenge to New Jersey’s law.  Nineteen states* also filed to support the challenge, as well as the Judicial Education Project.  A single brief was filed on behalf of the following: Gun Owners Foundation, Gun Owners of America, U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and the Policy Analysis Center.  Members of Congress submitted a brief, as well, urging clarification on firearms laws.

Respondents (those defending New Jersey’s law) had until March 14 to file a response.  Although nothing has been posted on the docket as of yet, it is quite possible that, because March 14 was a Friday and Monday saw inclement weather in Washington, D.C., the docket simply does not reflect the submission yet.  We will keep you posted as this case progresses.

*The following states joined Wyoming in filing the amicus brief in support of the Petitioners: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.

3 Comments

Filed under Constitutional Law, Firearms Law, News & Events, Uncategorized