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Interesting Second Amendment Challenge to a Lengthy Firearm Sentence

Over at Sentencing Law and Policy, Professor Doug Berman has this interesting post about a motion he has filed on behalf of Weldon Angelos attempting to set aside at least part of his 55-year prison sentence for carrying/possessing guns in connection with several low level marijuana deals.

Berman's post links to a motion he has filed, arguing that part of the 55-year sentence is now invalid after Heller because it punished Angelos for keeping firearms around his house. Angelos, the argument continues, had a constitutional right to keep and bear arms, including arms at his house. Here is a snippet of the argument:

Though the government may eventually dispute some facts set forth in the 2255 motion, there is no dispute that Angelos had no adult criminal record prior to the instant case and that he was subject to 55 years of mandatory federal imprisonment based principally on allegations of possession of firearms in his home, in his car, and on his person. Specifically, the firearms providing the basis for one 25-year mandatory sentencing term were those present within Angelos's home. And though there is a dispute concerning whether Angelos possessed a firearm during the marijuana sales engineered by the government's informant, there is no evidence whatsoever or even any serious allegation that Angelos actively utilized firearms to facilitate three uneventful hand-to-hand marijuana sales. Nevertheless, on the basis of (suspect and perhaps incredible) testimony of a single government informant, who belatedly asserted that Angelos possessed a firearm during two marijuana sales, the district court felt obliged under statutory sentencing provisions to impose another 30 years of federal imprisonment.

In light of the Supreme Court's broad and forceful recognition of the right of all citizens under the Second Amendment to possess firearms to effectuate "the inherent right of self-defense," District of Columbia v. Heller, 128 S. Ct 2783, 2817 (2008), the extreme sentence imposed upon Angelos for gun possession are now clearly unconstitutional and his 55-year sentence must be at least partially vacated. As explained more fully below, the Supreme Court's landmark Heller ruling as applied to the unique facts of this case render unconstitutional (1) the Government's pursuit of a superseding indictment threatening a 25-year mandatory prison sentence based on the presence of guns within the Angelos home, and (2) the imposition of 55 years of federal imprisonment Angelos is now serving based on his gun possession.

In addition, the Heller ruling, considered together with the Supreme Court's most recent explication of Eighth Amendment jurisprudence and its application in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), confirms that the 55-year federal prison term that Angelos is serving based on the possession of firearms is constitutionally excessive. Indeed, the combined force of the Heller and Kennedy rulings, along with the notable and constitutionally significant public reactions to both decisions, make plain that the sentence Angelos is now serving violates "the evolving standards of decency that mark the progress of a maturing society." Id. at 2664 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

You can download the whole brief over at Berman's blog.

Note: Professor Berman is trying to get me reversed here. I was the federal district court judge who, very reluctantly, had to impose the 55 year sentence.

peter:
By "very reluctantly" do you mean you felt it was wrong and that you put away a person for decades against your own conscience? I.E. you were just following orders?
9.16.2008 4:03pm
Happyshooter:
Sad cases usually make bad law. I am pro-gun, so I hope this sad and unfair result helps my side.

I also hope the sentence gets cut by a factor of about 100. That is way too much time for what he did by reading the brief.

Of course, you saw the whole case so you may have a better feel.
9.16.2008 4:04pm
Jon Roland (mail) (www):
Nonsense. The judge didn't have to impose the 55-year sentence. Sentencing guidelines are guidelines, not mandatory, as the SC has ruled.

More importantly, the due process and jury rights of the accused were almost certainly abused by not allowing all issues of law (except those that cannot be made without revealing evidence properly excluded) to be made in the presence of the jury (assuming there was a jury, since the U.S. Constitution states: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." III:2:3).

See Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573 — Defense in criminal trial has right to argue law before jury until bench rules on motion.
9.16.2008 4:07pm
Happyshooter:
By "very reluctantly" do you mean you felt it was wrong and that you put away a person for decades against your own conscience? I.E. you were just following orders?

Before we start jumping on the man, recall the bad guy here is a criminal, just one who ended up getting too much time under laws passed by our congress.

I know we love to jump straight to comparing everyone who has a misgiving about their legal duty but does it anyway to Reserve Police Battalion 101, but in this case it was a law with no wiggle room and he was the man at the bottom of a long chain with no legal right or ability to do other than what he did.
9.16.2008 4:08pm
Jon Roland (mail) (www):
Happyshooter:

... recall the bad guy here is a criminal, just one who ended up getting too much time under laws passed by our congress.

Is he? Prove, by an unbroken logical chain of derivation from the Constitution, that the statutes are constitutional. No reference to precedents allowed, since they cannot be part of a logical chain.

Nulla poena sine lege. No punishment without a law.
Nullem crimen sine lege. No crime without a law.
9.16.2008 4:24pm
Milhouse (www):
Jon, Booker wasn't decided until two months after Weldon's sentence.
9.16.2008 4:25pm
Jon Roland (mail) (www):
Milhouse:

Jon, Booker wasn't decided until two months after Weldon's sentence.

I know, but the decision was obvious to any judge with a smattering of knowledge of how to read English, never mind legalese. And under almost any competent concept of precedence, retroactive in its effect to all cases, no matter what the rest of the opinion might say to the contrary.
9.16.2008 4:29pm
Mike& (mail):
I know, but the decision was obvious to any judge with a smattering of knowledge of how to read English, never mind legalese.

Is your goal to persuade, or to vent your spleen? If the latter, maybe save that for your diary? Some of us would like to have a serious and thoughtful discussion of these issues.
9.16.2008 4:36pm
Mike& (mail):
I was the federal district court judge who, very reluctantly, had to impose the 55 year sentence.

It would be interesting if you would elaborate... perhaps in a blog post about what goes through your mind during sentencing? Every criminal lawyer knows that sentencing is one of the hardest things for a thoughtful judge to do. Many do not appreciate what goes on inside the head of a judge during sentencing. I think it would help the public understand the process if you elaborated.
9.16.2008 4:39pm
NickM (mail) (www):
Before we feed the troll any more, these weren't Guidelines issues, but statutory mandatory minimum sentences.

Nick
9.16.2008 4:40pm
one of many:
But Blakeley controlled prior to Booker, and anyone who what a smattering of knowledge of federal sentencing would know that Judge Cassel had no choice in the matter.
9.16.2008 4:40pm
one of many:
Calirification, Judge Cassel did have a choice, he could have made the sentence longer but he could not go below the minimums.
9.16.2008 4:41pm
Jon Roland (mail) (www):
Mike&:

Some of us would like to have a serious and thoughtful discussion of these issues.


So would I, and that begins with a serious consideration of the constitutionality of every element of a case.
9.16.2008 4:42pm
M. Gross (mail):
Uggh.... what a disgusting miscarriage of justice.

I love how the prosecutors tried to get him to plea bargain... for 15 years.
9.16.2008 4:44pm
Dilan Esper (mail) (www):
I think the evolving standards of decency claim is barred by Harmelin and by the "three strikes" case that followed it.

As for the Second Amendment claim, I am VERY sympathetic. But I wonder if this won't be a bridge too far for the courts, because once you get into invalidating sentencing enhancements you call into question the entire edifice of sentencing law with its enhancements for gun use or possession in connection with crimes. So while I'd like to see a legal rule recognized that prevents 55 year gun enhancements for pot convictions, I am not optomistic.
9.16.2008 4:46pm
Bill Twist:
At what point do mandatory minimum sentences become so unfair that justice is better served by letting a nonviolent criminal go free?

Did this case cross that line?
9.16.2008 4:49pm
Jon Roland (mail) (www):
one of many:

But Blakeley controlled prior to Booker, and anyone who what a smattering of knowledge of federal sentencing would know that Judge Cassel had no choice in the matter.

Did the defense not argue the statute was inapplicable to the facts because the legislative intent was "carrying during" a crime and not just "title to object at remote location"? If not, then defense counsel was inadequate, and the judge should have asked for argument on that point.
9.16.2008 4:49pm
Plastic:
At the risk of feeding the troll...

Prove, by an unbroken logical chain of derivation from the Constitution, that the statutes are constitutional. No reference to precedents allowed, since they cannot be part of a logical chain.

What you're looking for is Article 3 of the constitution "The judicial Power of the United States, shall be vested in one supreme Court..." where the application and interpretation of laws (including the US constitution as they apply to statutes) is solely the court's purview (not yours or mine or the president's). Ignoring precedents entirely, the court has decided that it's constitutional and I'll bet money that the next case they'll come to the same decision.

That's just the way it is, get over it. If you can't, then either change the court's mind or change the constitution.
9.16.2008 4:51pm
Nunzio:
"Nevertheless, on the basis of (suspect and perhaps incredible) testimony of a single government informant, who belatedly asserted that Angelos possessed a firearm during two marijuana sales the district court felt obliged under statutory sentencing provisions to impose another 30 years of federal imprisonment."

This is really just a clear error argument, which won't be overturned. I seriously doubt the 2d Amendment protects the right to possess a firearm while selling pot. So the 8th Amendment argument is all he has here.

The argument about not punishing a then non-felon for possessing a firearm at home seems pretty convincing.

Applying the mandatory minimum sentences here seem pretty unjust.
9.16.2008 5:01pm
Never No Never:
This simply confirms my layman's intention never to sit on a jury that convicts anyone of a drug crime. The government can't be trusted to be fair.
9.16.2008 5:03pm
one of many:
Jon,
your argument (about what the defense should have argued) was brought up in the motion, however it was not directly relevant to 2 of the charges where the firearm was supposedly on the person of Angelos at the time of the transaction. This only concerns the trial not the sentencing, in sentencing the judge is not allowed to second guess the factual determinations from the trial.
9.16.2008 5:04pm
Jon Roland (mail) (www):
Plastic:

"The judicial Power of the United States, shall be vested in one supreme Court..." where the application and interpretation of laws (including the US constitution as they apply to statutes) is solely the court's purview (not yours or mine or the president's).

Wrong. Nothing in the Constitution confers exclusive power to the courts to resolve conflicts of law. Constitutional review is not a delegated power, but the duty of every citizen in any situation that may come before him. It is only "judicial" review when courts do it, and they get cases at a late stage. We might defer to the courts if they maintain a pattern of almost always getting it right, as we might defer to an umpire in a sporting contest, but ultimately deference to the courts ceases to be appropriate when their decisions deviate from the Constitution by a margin that exceeds the bounds of perceptional error.

Re-read Marbury more carefully. For constitutional construction, we are all on our own, and the duty to resolve conflicts of law is a duty that cannot be relinquished to supervisors, legal advisers, or judges. If the Constitution is unclear, or understanding of it diverges, then the solution is clarifying amendment or public education. Lacking that, the common law of construction must prevail: In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
9.16.2008 5:12pm
Jon Roland (mail) (www):
one of many:

your argument (about what the defense should have argued) was brought up in the motion, however it was not directly relevant to 2 of the charges where the firearm was supposedly on the person of Angelos at the time of the transaction. This only concerns the trial not the sentencing, in sentencing the judge is not allowed to second guess the factual determinations from the trial.

True, the critical error was made in the trial, and should have been avoided before getting to sentencing. The challenge should be of the verdict, not just the sentencing.
9.16.2008 5:17pm
Houston Lawyer:
I question the logic of sentence enhancement for crimes committed in the vicinity of a firearm. If someone robs me at gunpoint am I better off than if I had been robbed with a knife to my throat?
9.16.2008 5:30pm
KeithK (mail):
This case makes me wonder. Can exercising an individual constitutional right (legally possessing a firearm) rightly be considered an aggravating factor in sentencing for a crime? I agree that firing a weapon in the commission of a crime could reasonably be an aggravating factor or threatening someone with a gun because in those cases it's really the assault/attempted murder or threat that's being punished, not the firearm possession.

I suppose hate crimes basically enhance penalties based on protected behavior (1st amendment) although I personally think such laws are abhorrent and probably should be unconstitutional. Are there any other cases of this? Maybe I'm way off base; if so please enlighten me.
9.16.2008 5:34pm
Sarcastro (www):

that begins with a serious consideration of the constitutionality of every element of a case.


Totally! I'm gonna bring up and re-argue Marbury in every thread here!
9.16.2008 5:39pm
one of many:
KeithK,

I cannot enlighten you on the issue, I think you are exactly right. There is some question about 4th amendment and 6th amendment issues (failure to testify being taken as evidence of guilt and failure to voluntarily consent to a search being used as justification for an involuntary search), but in those cases the decisions went the other way.
9.16.2008 5:45pm
OrinKerr:
Jon Roland,

I don't mean to be impolite, but are you an attorney?
9.16.2008 5:47pm
Steve:
I question the logic of sentence enhancement for crimes committed in the vicinity of a firearm. If someone robs me at gunpoint am I better off than if I had been robbed with a knife to my throat?

Your first sentence was more persuasive than your second. I think it's rational for the government to determine that crimes committed with the aid of a firearm are inherently more dangerous than those committed without, because there's more risk of someone getting shot in the process. But I agree with the concept that just because you have a firearm somewhere in the house where you're dealing drugs, that doesn't make the drug crime more dangerous.
9.16.2008 5:51pm
Jon Roland (mail) (www):
OrinKerr:

Jon Roland,
I don't mean to be impolite, but are you an attorney?

Legal historian. CV.
9.16.2008 5:57pm
Mike& (mail):
Can exercising an individual constitutional right (legally possessing a firearm) rightly be considered an aggravating factor in sentencing for a crime?

That's a really interesting question. I don't see how. Imagine the following:

John is convicted of selling marijuana. When searching his home, law enforcement found materials noting that John was a member of NORML, and that he wrote letters to the editor arguing that adults should be able to smoke marijuana. The trial court therefore enhanced John's sentence.

How could that stand?

The real issue is whether Heller is going to end up like Booker/Blakely. Blakely seemed like a really big deal. Yet, in reality, we're (mostly) back in a pre-Blakely world. Sure, the Guidelines are not mandatory. But they are presumptively reasonable. And thus a departure from the Guidlines is likely to get reversed (especially if it's a downward departure).

So how are things different? They really aren't. Through some analytical trickery, we're in a pre-Blakely world.

Will the same fate befall Heller? I think so. Ultimately, a few people who might not have been able to own guns will be able to do so. For 90% of people, Heller will not mean anything.
9.16.2008 6:01pm
Plastic:

Nothing in the Constitution confers exclusive power to the courts to resolve conflicts of law.

Section 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution." Since that power is not granted to anyone else by the constitution it's only a small step of logic to say that they have sole power to resolve conflicts of law. The difference between saying a statute will never be enforced and striking it down are semantic.


Re-read Marbury more carefully. For constitutional construction, we are all on our own, and the duty to resolve conflicts of law is a duty that cannot be relinquished to supervisors, legal advisers, or judges.

You can't go back on your own rules now and start using judicial precedent to argue your case, common law construction even more so. However, I am interested in this theory that we are all responsible for interpreting the constitutionality of laws. Does that mean we should all take a vote when there is a question of a statute's constitutionality?
9.16.2008 6:12pm
TruePath (mail) (www):
Just to throw in my 2 cents I would observe we certainly think that similar sentence enhancements as a result of unrelated protected 1st amendment expression is unconstitutional. For instance suppose the law punished republican drug dealers far more harshly than democratic drug dealers.
9.16.2008 6:14pm
one of many:
Mike&
While I agree for most cases we are in a pre-Booker world, the instant case is one of those few cases where Booker considerations are surely applicable. I suspect that the lack of power to Booker is the reason that the motion makes no mention of it.
9.16.2008 6:14pm
Christopher Cooke (mail):
I tend to agree that, after Heller, the lawful possession of a firearm, in itself, should not be a sentencing enhancement. The mandatory minimum that Judge Cassell was duty-bound to apply may be unconstitutional unless the firearm is brandished during the commission of the offense, or at least I can see that argument. But, having a gun in your house, while dealing pot in your driveway, probably should not add to any sentence you would receive for simply dealing the pot.
9.16.2008 6:16pm
Dilan Esper (mail) (www):
Can exercising an individual constitutional right (legally possessing a firearm) rightly be considered an aggravating factor in sentencing for a crime?

Wisconsin v. Mitchell would suggest that it can be.

More specifically, there's 2 problems in the second amendment context-- the first is Mitchell, and the broad discretion that courts have to impose sentencing enhancements. We can argue whether it is good or bad, but it exists. The second is whether particular conduct that falls within a sentencing enhancement is going to be held to be within the Second Amendment. This guy has the best case for that-- he's possessing guns around his home. But a lot of gun enhancements are probably going to be held constitutional even if Mitchell is reversed or held inapplicable to Second Amendment cases, because the nature of the use is going to be one that the Court will held that the government can regulate.
9.16.2008 6:24pm
Helene Edwards (mail):
Judge Cassell:

Could you possibly address the contentions of Jon Roland related to the presentation of legal issues before jurors, i.e. whether <i>Stettinius</i> has any continuing force in actual federal practice? Though Roland is a constant poster of - er - idiosyncratic views, I think many of us would really like to know whether such open deliberation has been wholly stamped out and if so who it's justified. Thanks.
9.16.2008 6:30pm
Waldensian (mail):

OrinKerr:
Jon Roland,
I don't mean to be impolite, but are you an attorney?

Jon Roland:
Legal historian. CV.

And WHAT a historian!! The biography linked to Mr. Roland's CV is totally enthralling, although I sense it is, strictly speaking, an autobiography.

In any event, consider:

"Roland's family business has been real estate investment, and by 1974 he had acquired a considerable estate, but apparently he was set up for financial destruction by his political opponents, who lured him into what seemed to be a normal, good real estate investment, but which turned out to be a trap. During most of the next decade he was largely engaged in defending his position in court against a cabal of a loan shark with mob ties and a contest of his mother's will by a renegade aunt who used sex and promises of property to try to suborn witness perjury. The shark apparently subverted his own lawyer to get a judgement that was used not to collect its face amount, but to destroy Roland's estate and that of his dead mother."

Emphasis mine.
9.16.2008 6:57pm
GV:
Judge Cassell was the first district court judge to rule that the Guidelines were unconstitutional post-Blakely. (Or, at least, he was the first to issue a written opinion coming to that conclusion.) As others have noted, he had no choice but to sentence the defendant in this case to 55 years because of the relevant mandatory minimum penalties. Nevertheless, he also made a plea for a presidential commutation in his opinion, asking the President to commute the defendant’s sentence to 18 years, which is the sentence the jury had recommended was fair.
9.16.2008 7:26pm
GV:

This case makes me wonder. Can exercising an individual constitutional right (legally possessing a firearm) rightly be considered an aggravating factor in sentencing for a crime?

But it’s not really clear he was exercising his constitutional rights. Under the government’s view of the evidence -- the view the jury apparently accepted -- this guy had his gun, not to protect his family and his home, but to facilitate his crime. In that light, I don’t see the second amendment argument getting very far.

And while it’s perhaps a matter of word choice, the “use” of the gun was not a stand alone sentencing factor. Rather, it was a separate crime that came with a mandatory minimum penalty. In other words, in addition to being convicted of the drug sales, he was convicted of using a gun in furtherance of his drug sales. (Actually, he was convicted of this offense three times.)

The real villain here is Congress and all of the idiot voters who think you can’t be too tough on crime. There’s lots of people spending many, many years in prison because they sold a small amount of drugs and also owned a firearm. Some of those defendants are less sympathetic than others and no doubt some of them deserve very long prison sentences. But there’s lots of them who are spending the rest of their lives in prison for committing what I think a lot of people consider a minor crime. Indeed, as Judge Cassell noted in his opinion, the defendant in this case could have raped a child, hijacked an airplane, or committed murder and still have received a shorter prison sentence under the senseless sentencing scheme Congress has enacted.
9.16.2008 7:37pm
zippypinhead:
This is one of those classic "hard facts makes bad law" cases. The 924(c) counts of conviction arguably had some wiggle room on the facts under the reasonable doubt standard, but the District Court didn't Rule 29 them, and the jury convicted on three of those counts. Meaning the defendant was found beyond a reaonable doubt to have possessed a firearm "in furtherence of" a drug trafficking crime (the specific language of the applicable part of 18 U.S.C. §924(c)). One should not confound mere ownership of a firearm with possession in furtherence of a drug trafficking crime, which is what the jury convicted Angelos of. If Angelos had been a drug user rather than a drug pusher, he would have been prohibited from mere possession of a firearm under 922(g)(3), but that's not what he was charged with or convicted of.

Under the statutory mandatory minimum scheme, Judge Cassell had no choice in sentencing. There was a plethora of caselaw affirming the Constitutionality of such mandatory minimum sentencing schemes. The sentence was upheld by the Circuit on direct appeal. The Supreme Court ultimately denied certiorari.

Now comes the §2255 collateral attack. The 2255 petition alleges various flavors of ineffective assistance of counsel, prosecutorial misconduct, and violation of the Eighth Amendment as applied. These basic arguments have appeared in thousands of unsuccessful 2255 petitions over the years, and frankly none of those arguments jump out at me as a solid winner (although the memorandum is a lot more well-written than many 2255 petitions).

The most interesting part of the 2255 is the novel post Heller Second Amendment argument (only slightly complicated by the fact that the 2255 memorandum was filed before Heller was actually handed down). Even if we assume, arguendo, that the basic holding of Heller can be applied retroactively when it was not raised below or on direct appeal, you still have to get around the problem that the Supreme Court's dicta noted that closely-analogous felon-in-possession statutes are simply not implicated by Heller's Second Amendment analysis. Naturally this wasn't addressed in the 2255 memorandum because Justice Scalia hadn't published the dicta yet, but it's going to be of major significance to the decision.

At bottom, for Angelos to win his 2255 petition, the court would have to determine that -- notwithstanding the Supreme Court's limiting dicta -- a defendant's Second Amendment right to keep and bear arms Constitutionally trumps a statutory sentencing enhancement when the defendant is convicted of possessing a firearm "in furtherence of any [drug trafficking crime]."

Good luck. I just don't see it happening here. It doesn't matter what standard of review should be applied to Second Amendment infringements - if a defendant is convicted of possessing a firearm "in furtherence" of a crime, the legislature's determination that a sentencing enhancement is appropriate when there is such a nexus isn't going to be disturbed. Just this pinhead's prediction, for what it's worth.
9.16.2008 7:38pm
zippypinhead:
By the way, I agree with GV that "The real villain here is Congress..."

In this case, Angelos got an awfully harsh sentence. But the blame should go to a one-size-fits-all mandatory minimum that's likely Constitutional but not always just.
9.16.2008 7:43pm
Dave Hardy (mail) (www):
I'm not so sure that the enhancement statute fails, in light of Heller. First, there may not be a direct analogy between First and Second Amendment rights in all contexts. Second, what if a statute provided an enhancement for a person who, in addition to committing the crime, encouraged others to do so? And what of conspiracy, which is little more than exercising the right to associate, but with a criminal end? Or solicitation, which is using freedom of expression to bring about a criminal end?
9.16.2008 7:50pm
GV:
Zippypinhead, I actually think one of the ineffective assistance of counsel claims is strong. The evidence supporting the 924(c) counts was weak, and it appears there’s a decent argument that counsel didn’t effectively deal with those counts by failing to fully investigate relevant evidence. If I were a clerk reading this motion, I think that argument would persuade me. I can certainly see a liberal panel reaching that conclusion. A reasonably competent attorney would have realized that this case was really only about the 924(c) counts. Spending time challenging the evidence on the drug sales was just dumb. I’d be interested to know who his trial counsel was; I assume it was not a public defender, but rather private counsel. Anyone know?

I should also add that a potential villain here is the President if he chooses not to commute the sentence of this defendant. There's lots of cases like this one -- cases involving first time offenders receiving what amounts to a life sentence. I hope something can be done for many of them. Hopefully our current president can put to use some of that compassion he talked so much about in 2000 that he has been apparently storing up.
9.16.2008 7:51pm
Bart (mail):
Heller held that we have an individual right to keep and bear arms for all traditionally lawful purposes. One of those purposes is for the law abiding to protect themselves from the criminal. This Second Amendment purist tends to doubt that traditional lawful purposes includes a criminal keeping and bearing arms for the purpose of self defense against other criminals during criminal transactions because the possession of the firearm can reasonably be construed as advancing the criminal enterprise. Thus, I see no problem with a law that punishes a criminal for bearing arms during a criminal transaction. Only if the arms were outside of the defendant's constructive possession in a different area of the home during the criminal transaction might the defendant have a reasonable argument that he was keeping the arm for legitimate self defense.
9.16.2008 7:57pm
Dilan Esper (mail) (www):
Even if we assume, arguendo, that the basic holding of Heller can be applied retroactively when it was not raised below or on direct appeal

Heller clearly falls within one of the two exceptions to Teague and is retroactive on Habeas. It renders certain conduct beyond the punishment of the criminal law.
9.16.2008 8:05pm
Cornellian (mail):
I have to wonder whether jury nullification would become rampant if juries knew what kind of sentence would be imposed for something like this. Maybe it's about time they were told.
9.16.2008 8:09pm
rfg:
GV- why would it have to be a "liberal panel" to reach that conclusion? Would a "conservative" panel feel differently, perhaps repelled by the evidence that the accused was a drug dealer?

As was noted earlier in the thread- the real villain is the "get tough on crime at all costs" attitudes that seem to prevail over reason these days. And it is not limited to drugs anymore- Florida law will now allow seizure of a motorcycle under asset forfeiture law for some moving violations as of Oct 1st.
9.16.2008 8:11pm
GV:

[W]hy would it have to be a "liberal panel" to reach that conclusion? Would a "conservative" panel feel differently, perhaps repelled by the evidence that the accused was a drug dealer?

Because conservatives aren't typically known to grant habeas petitions for convicted drug dealers. I think this is a close case, and in close cases, the composition of the panel is often outcome determinative. I don’t necessarily think it’s because conservatives don’t like drug dealers and liberals do. Rather, I just think liberals judges (on average) take a slightly different view of the law than conservative judges (on average) do. They’re both trying to follow the law, but their sense of what that means, particularly in habeas cases, is often different.
9.16.2008 8:18pm
zippypinhead:
GV wrote:
The evidence supporting the 924(c) counts was weak, and it appears there’s a decent argument that counsel didn’t effectively deal with those counts by failing to fully investigate relevant evidence.
You may be right, but I really can't tell from the limited record I've seen whether there's a basis for ineffective assistance here. Assuming you're not dealing with a sleeping drunk at counsel table, it's actually pretty hard to prove ineffective assistance in general.

In a failure to investigate claim like this it may be especially hard. Unlike a case where one can objectively look at whether the defense looked at the crime scene, hired a forensics expert or interviewed witnesses, here there's actually not a lot to "investigate" - it's just whether you can attack the word of a snitch by arguing about lines of sight based on where people were positioned during the transaction. So it's more a question of whether counsel thought a line of cross examination or closing argument would be fruitful. Those are tough 2255s to make work.

In collateral attacks like this the courts give counsel a lot of leeway to exercise discretion as to how he focuses his defense, even if he was ultimately proven wrong. Here, if the court decides the problem was simply that counsel concentrated on shooting down the wrong element of the offense -- that he focused most of his energy on vigorously attacking the "drug trafficking" element of 924(c), rather than the possession of a firearm "in furtherence" element, the 2255 petition will probably fail.

Remember, if the court orders an evidentiary hearing, the government basically ends up having to rely on original defense counsel to prove there was no ineffective assistance. And it's a rare defense lawyer who will admit "yeah, I screwed up royally." That's not good for business. So generally in this sort of case the evidence ends up being that counsel "considered" a line of defense but decided not to pursue it for some reason that sort of passes the laugh test - which is pretty much all the law of ineffective assistance says he has to do.
9.16.2008 8:25pm
Kazinski:
Paul Cassell,
Because you are aware of the facts of this case, was there a nexus between gun possession and the crime based on this standard promulgated by the Washington Supreme Court in State v. Neff:


A person is armed while committing a crime if he can easily access and readily use a weapon and if a nexus connects him, the weapon, and the crime....

This nexus requirement is critical because "[t]he right of the individual citizen to bear arms in defense of himself, or the State, shall not be impaired ...." Wash. Const. art. I, § 24. The State may not punish a citizen merely for exercising this right. The State may punish him for using a weapon in a commission of a crime, though, because a weapon can turn a nonviolent crime into a violent one, increasing the likelihood of death or injury.

It seems to me if the facts are as alleged their would be no nexus between the crime and the alleged "hand to hand" marijuana sales, which I am assuming were less than an ounce, and almost certainly less than a pound. In Washington, at least, people go in to supermarkets daily to buy a six pack of beer while armed, and it doesn't seem anymore relevent in those cases than this case.

I'm also wondering if allegation he was armed during the crime was tried by a jury, or was it just brought up at sentencing?
9.16.2008 8:40pm
Bruce Hayden (mail) (www):
Even if we assume, arguendo, that the basic holding of Heller can be applied retroactively when it was not raised below or on direct appeal, you still have to get around the problem that the Supreme Court's dicta noted that closely-analogous felon-in-possession statutes are simply not implicated by Heller's Second Amendment analysis. Naturally this wasn't addressed in the 2255 memorandum because Justice Scalia hadn't published the dicta yet, but it's going to be of major significance to the decision.
My understanding though is that he wasn't a felon in possession, but rather, the felonies came as a result of the bust. I agree with Scalia that Heller shouldn't protect felons in possession, just like they shouldn't get the right to vote. But this appears different.
9.16.2008 9:17pm
Dave N (mail):
I have to wonder whether jury nullification would become rampant if juries knew what kind of sentence would be imposed for something like this. Maybe it's about time they were told.
You obviously have not spent much time in Utah.
9.16.2008 9:25pm
John K.:
This memorandum of law in the Angelos case and discussion on this thread is very interesting to me, because right now I've got a client who is charged with dealing in cocaine as a Class B Felony and Carrying a Handgun Without a License as a Class A Misdemeanor. The client is 19 years old and has no prior criminal record. The handgun was a small two shot derringer, and my client says he had it in his pocket when he was arrested for selling drugs only because someone had sold it to him earlier that day. I realize this may offend the sensibilities of the conservative commenters (the brief points out how little sympathy is engendered by the image of a gun carrying drug dealer), but I think an appropriate sentence would involve a combination of home detention and probation. (Locking this young man up in a cage with hardened, older criminals is not going to be good for his social skills.) The trouble is that my state has a statute which says that if a person commits dealing in cocaine and "if the court finds the person possessed a firearm ... at the time of the offense" then only that part of the sentence which is above the statutory minimum can be suspended or served on home detention. That means the client's sentence presumably is going to include at least six years executed.

On the one hand, my client is not facing near the level of injustice as Angelos is facing. (The prosecutor is offering an eight year cap on the executed part of the sentence.) On the other hand, in Angelos' case the jury necessarily found that Angelos possessed the firearm AND that his possession of it was in "furtherance of the crime." In the case of the statutory provision from my state that I mention above, however, there is no such requirement of a "nexus" between possessing the gun and the crime. I wonder if this might make a Second Amendment argument along the lines advanced in the Angelos brief even more pertinent in my case. All I'm trying to do is find a way to give the judge the discretion to not put my client in prison if he doesn't feel it's appropriate.
9.16.2008 9:40pm
zippypinhead:
I agree with Scalia that Heller shouldn't protect felons in possession, just like they shouldn't get the right to vote. But this appears different.
Bruce, I'd argue that being convicted of using a firearm in furtherance of a crime is actually worse (from a culpability standpoint) than merely being convicted of being a felon-in-possession under 922(g)(1). Thus, if the majority in Heller indicates in dicta that felon-in-possession laws aren't invalid under the Second Amendment, then by analogy 924(c) should also not be invalid.

As noted by others above, a 924(c) conviction requires more than mere possession of a firearm; there needs to be a nexus to the enumerated criminal conduct. You don't have to actually fire the gun, but it needs to be in close enough proximity that it could potentially prove useful in the commission of the crime. I believe two of the 924(c) counts Angelos was convicted of occurred because the jury found he actually had a gun in his ankle holster during his small-time drug sales.

A 922(g) conviction, on the other hand, merely requires possession, even if it's just stored in your locked gun safe in the basement. If you've got no Second Amendment right to that just because you were convicted of some felony at some time in the distant past (or even a misdemeanor domestic violence offense), then it strikes me that the courts won't second-guess criminalizing or imposing mandatory minimums for using a gun in furtherance of a drug or violent crime.
9.16.2008 10:44pm
jccamp (mail):
I think Bart @ 6:57 has it right. Heller is no help for Angelos for the handgun in his possession at the time of the 2 hand-to-hand transactions. It may negate the conviction for the 2 firearms found in Angelos' house, supposedly locked in a gun safe.

On another note, the motion briefly refers to a possible motivation for the alleged prosecutorial misconduct, i.e. that Angelos had knowledge of criminal conduct by others, and that he refused to consider cooperating with the government as a basis for plea negotiations. When Angelos decided not to assist the prosecutors, they count-loaded (overloaded, IMO). The motion does not deny Angelos had such knowledge.

I'm curious about what the posters here think of this reasoning by the government, that is, the AUSA's hammered Angelos to coerce his cooperation in other criminal matters. Assume just for this argument that Angelos was correctly convicted - that is, forget for the moment the issue of the informant's belated recollection of guns being present - was this tactic legitimate? Would it matter of Angelos could still cooperate with the government in exchange for a motion to mitigate by the government? What if Angelos's conviction would ruin any chance of meaningful cooperation, and thus, the charge loading was more punishment than inducement?

This - charge loading to induce cooperation - is not uncommon in my experience, although the draconian nature of the min man the judge faced is way more than I'm used to seeing for what seem to be fairly innocuous crimes.
9.16.2008 11:21pm
John K.:
jccamp says he think that Bart @ 6:57 has it right. Bart @ 6:57 said:

"This Second Amendment purist tends to doubt that traditional lawful purposes includes a criminal keeping and bearing arms for the purpose of self defense against other criminals during criminal transactions because the possession of the firearm can reasonably be construed as advancing the criminal enterprise."

This doesn't seem right to me. People who are dealing drugs are obviously doing something that is dangerous to themselves personally. The fact that they are non-violently doing something that happens to be illegal doesn't give other criminals the right to rob and/or kill them. We wouldn't say that a drug dealer who is physically attacked by someone he has not provoked would not have the right to defend himself against the attack. If he's within his rights to physically ward off an ordinary assault with his fists, why isn't he also within his rights to defend himself against someone who's shooting at him by shooting back?
9.16.2008 11:41pm
jccamp (mail):
Firearms which are readily available - which I would think an important consideration - cannot be designated as "for defense against other crooks" as opposed to "for use against the cops." There is a legitimate government interest in sanctioning the proximity of firearms to other criminal acts.
9.16.2008 11:48pm
jccamp (mail):
John K -

If, as seems to be the case, a person who simultaneously carries a concealed firearm while dealing narcotics either commits a separate count or is subject to enhancement, either concerns the conduct of the dealer, not anyone else. It (the prohibition) is not the same as the government approving or somehow permitting criminal acts against the dealer by other criminals. What would you say about a convicted felon who simultaneously deals drugs and carries a firearm? Would the prohibition of felons possessing firearms be negated if the felon voluntarily assumes risk by committing other criminal acts? I wouldn't think so.

There does not seem to be any way for the statutes to distinguish between a drug dealer who carries firearm for personal protection from other criminals, and a dealer who carries a firearm to use if the police attempt to arrest him. In either event, the dealer's original intent may fly away at the first sign of conflict. I think the overriding government is to prevent the potential for violence, by criminalizing in every instance the possession of firearms while engaged in criminal conduct.
9.17.2008 12:08am
jccamp (mail):
John K -

Although I'm sure this has occurred to you, I think your client's only practical alternative is to find a way to work off the gun enhancement. I'm obviously not familiar with the politics of your area, but I wouldn't think that a prosecutor sees a valid "interests-of-justice' thing in putting a first offender in prison for 8 years, absent other aggravating circumstances (like a violent juvenile record, something like that.)

If your guy was dealing coke, he should be in a position to do a controlled buy or two, intro a cop somewhere and walk away, or similar.

I'm not suggesting this is fair for a first offender, but it does seem to be real world.
9.17.2008 12:17am
David Schwartz (mail):
This is really just a clear error argument, which won't be overturned. I seriously doubt the 2d Amendment protects the right to possess a firearm while selling pot. So the 8th Amendment argument is all he has here.
So could there be a sentence enhancement for advocating Communism while selling pot? Surely there is no right to advocate Communism while selling pot.

The short question is -- can there be a sentence enhancement for exercising a Constitutional right while committing a crime. And if so, won't this chill exercise of those rights?

Suppose a State proposed a ten year mandatory prison sentence as an enhancement to speeding if you had on your possession Communist literature. Surely there's no right to speed with Communist literature, so why not?
9.17.2008 1:26am
John K.:
jccamp:

In the state where I practice the range of sentences for a Class B felony is 6 to 20, with 10 years being the advisory sentence. I'm hoping of course to get my client the minimum, and the state has offered to cap the executed portion of the sentence at 8 years if he pleads to both the dealing and carrying a handgun without a license charges. (The evidence against him leaves little hope of winning if we go to trial.)

I tried to get the prosecution to allow him to plead to possession of cocaine while carrying a firearm, which would be a Class C felony and would allow for the possibility of home detention and probation in lieu of prison (while still allowing for an 8 year sentence, plus 1 year for the misdemeanor charge), but the prosecutor wouldn't agree to that. They've said they feel incarceration is appropriate.

If he gets the minimum of 6 years, with good time credit that would mean 3 years actually spent in prison, minus the 3 or 4 months he spent in jail before his family could bond him out.

This was a very small gun he was carrying around, one that presumably no serious self-respecting drug dealer would be caught dead with, which lends some credibility to his story that he wasn't carrying it around for personal protection, but because someone earlier that day just happened to ask him to buy it.

I'm really just fishing around for any way to persuade the judge that he has discretion to not send my guy to prison, even if my guy pleads to the dealing and the handgun charge. (Maybe the judge, even if persuaded that he did have discretion, would feel the guy should serve some time in prison anyway.)

The Second Amendment argument seems to have merit and to be worth making, although I suppose as a practical matter it's unrealistic to hope a trial judge would feel at liberty to accept the argument. And then I look at the statutory language itself, which reads "IF the court finds the person possessed a firearm ... at the time of the offense." But who says the court has to make a finding one way or the other, if he doesn't really want to? I suppose the prosecutor could insist on one and then the judge would have to make such a finding, but in the terms of the plea offer they're including as a term that they won't make any recommendation as to sentencing.

I think this judge would be willing if he could in this case to abstain from sending my guy to prison, but I doubt he's going to be willing to go far out of his way or do anything novel or questionable to do it.
9.17.2008 2:50am
carpundit (www):
Orin Kerr wrote, "Jon Roland, I don't mean to be impolite, but are you an attorney?"

He sounds more like a tax protestor. Lots of similar rhetoric in there.
9.17.2008 10:28am
wfjag:
Does anyone see 2d Amendment issues in this case, or is it more of a 1st Amendment academic freedom case?


Franchesca O'Neal has filed a lawsuit against speech instructor Charles Falcon for ridiculing her in class and giving her a B when she felt she deserved an A, but the district used statements in O'Neal's legal filing to seek the restraining order.

In the legal filing, O'Neal states she was previously in the military and "can handle a sidearm and a semi-automatic assault rifle," and that "any person of sound mind is not immune to a psychotic break and subsequent killing spree." O'Neal is seeking $300,000 in damages, but the lawsuit states, "in exchange for every penny I have asked for, I would shoot him dead and walk away penniless," and she would, "blow the back of his head out."


ACCD Granted Restraining Order Against Student, Sep. 4, 2008, www.ksat.com/news/17394096/detail.html

(Or, is it only confirmation of Lincoln's observation about people who represent themselves in court?)
9.17.2008 10:35am
zippypinhead:
Does anyone see 2d Amendment issues in this case, or is it more of a 1st Amendment academic freedom case?

"...the lawsuit states, "in exchange for every penny I have asked for, I would shoot him dead and walk away penniless," and she would, "blow the back of his head out.""
Oh my - ROTFL! Wfjag, why are you deliberately trying to provoke the lunatic fringe that trolls around VC with that question?

Sarcastro would probably say she's merely ststing an alternate civil ad damnum clause, seeking equitable relief in the form of the right to kill the defendant in lieu of monetary damages. Sounds totally reasonable, eh?

Restraining order properly granted. Now if the system is working, let's move her on to a court-ordered psychiatric evaluation, involuntary civil commitment, and lifetime prohibition on possession of firearms pursuant to 18 U.S.C. §922(g)(4)!

[Here's an interesting question: can someone successfully mount a "not guilty by reason of insanity" defense in a 922(g)(4) case alleging they're a prohibited person by reason of mental defect? Enquiring Minds Want To Know... not...]
9.17.2008 12:02pm
wfjag:
Sorry Zippy. But, I plead the truth as my defense. I didn't make this one up. Sometimes reality is weirder than Sarcastro.
9.17.2008 12:10pm
Saladman (mail):
Sleep well at night, Cassell?

I don't think the people who write and enforce these kinds of laws have thought through all the consequences. If just having a firearm in the house while being a pot-head nets you 55 years... why go quietly when they come for you? What have you got to lose?

I devoutly hope this challenge is succesful.
9.17.2008 2:56pm
jccamp (mail):
John K -

Even though I'm normally all in favor of doing one of those falling-safe-squashes-Wily-Coyote things when it comes to criminal law sanctions, I just do not understand a prosecutor seeking sentences like this and the one from the OP for first time offenders, the firearms notwithstanding. A far more appropriate penalty would be an adjudication on the weapons charge and a lengthy probation. That way, the first time offender will need to get religion (so to speak) or get a double hammering on the next arrest, plus the firearm conviction in many (most?) states will trigger an enhancement ladder for future felony convictions. In either case, future firearms possession will almost guarantee some minimum mandatory because of the felony conviction.

I almost always went for sentencing along these lines, because I was a cynic and presumed 90% of the first time offenders would be recidivists, and if whatever small percentage failed to repeat, then good for everyone. Those elusive interests of justice would be served in either event.

I consider myself fairly conservative when it comes to criminal violations, but this stuff? I never heard of one strike - you're out for garden variety drug offenses with no hint of violence or major trafficking.

You're making me rethink some of my long-held beliefs.
9.17.2008 4:12pm
jccamp (mail):
wfjag,

Do you have Ms. O'Neal's email? I may assume someone else's identity, make some disparaging posts, and then send her the link.
9.17.2008 4:24pm
wfjag:
jccamp:

The webaddress will get you to the TV station. They interviewed her. Tell them, and then her, you're from Nightline. That should get you all the info you want. Then send e-mails signed "Dilan Esper". That's what I did.

Oh, Dilan, if you get a package postmarked in Arizonia that sounds like it contains an alarm clock, don't open it.
9.17.2008 4:32pm
jccamp (mail):
Or alternately, if a lady in an Alamo Community College Demosthenes Fan Club t-shirt and carrying a violin case rings the doorbell...
9.17.2008 4:42pm
Jon Roland (mail) (www):
Plastic:

Article 3 of the constitution "The judicial Power of the United States, shall be vested in one supreme Court..." where the application and interpretation of laws (including the US constitution as they apply to statutes) is solely the court's purview (not yours or mine or the president's).

either change the court's mind or change the constitution.

The "judicial power" extends only to parties in cases before a court, not to the rest of us if we are not parties. We might defer to a court if its decision is within reasonable bounds of error, as we might defer to the call of an umpire who calls a ball "in" that is out by only an inch, within the range of perceptual error. Howsever, if the ball is out by ten feet we nave no obligation to defer to it, and if we can't replace the umpire, then we walk off the field. Similarly, with unconstitutional decisions by courts, we have the option of civil disobedience.

Law and conflicts of law are part of our lives, not just something that happens in courts. Each us has an inalienable duty to resolve conflicts of law in all the situations that involve legal issues, and that is most of what all of us do every day. That means that if the conflict is with the applicable constitution (U.S. or state), we have to resolve the conflict in favor of the Constitution, even if that is in conflict with a court decision to which we are not a party. Courts do not enact law. From Art. I

All legislative Powers herein granted shall be vested in a Congress of the United States

To treat court precedents as binding, rather than merely persuasive, is to treat them as legislation, which is unconstitutional. Gary Lawson and I have long argued that stare decisis is mostly unconstitutional. See:
The Constitutional Case Against Precedent, Gary Lawson, 17 Harv. J.L. &Pub. Pol'y 23, 24 (1994).
Mostly Unconstitutional: The Case Against Precedent Revisited, Gary Lawson, 5 Ave Maria L.R. 1 (2007).
How stare decisis Subverts the Law, Jon Roland.

Courts don't command armies of enforcers. They issue decisions, which the rest of us either accept or don't. If we find the decision is unconstitutional, then our duty is to ignore it, and if someone else tries to enforce it, to arrest them.

Now "legal realists" ("law is whatever judges say it is") might not accept this, but legal realism is only a custom, not a duty under the Constitution. On the contrary, the Constitution presumes an originalist order, with duties to contrue all constitutional issues strictly according to their original public legal meaning.
9.18.2008 3:54am
Jon Roland (mail) (www):
Helene Edwards (mail):

Judge Cassell:

Could you possibly address the contentions of Jon Roland related to the presentation of legal issues before jurors, i.e. whether Stettinius has any continuing force in actual federal practice? Though Roland is a constant poster of - er - idiosyncratic views, I think many of us would really like to know whether such open deliberation has been wholly stamped out and if so how it's justified. Thanks.
9.16.2008 5:30pm

I would also like to get a counterargument. I have gotten it from others, which came down to "It's become established practice", and fidelity to original standards of due process would be "inconvenient" to busy courts.
9.18.2008 4:00am
Reg (mail):
I don't think Roland's view is too different from what Michael Stokes Paulson has written about judicial review, which I remember being quite convincing. I've never heard the argument applied to suggest jurors have an independent duty to nullify unconstitutional laws though, which is interesting. If I remember the jury oath, they are to apply the law as given by the judge, and I think the oath comes from statute. They don't swear to uphold the constitution like other government employees do.
9.18.2008 5:18am
Plastic:

The "judicial power" extends only to parties in cases before a court, not to the rest of us if we are not parties.

That's why I said it's semantic whether they actually strike down a law or just say it won't be enforced in their court. Of course they don't have power outside the courtroom, but that's where you are if your being charged, so that's who's opinion matters.

You can say stare decisis is tantamount to legislation all you want (I disagree, but that's another arguement for another time) and that we have the duty interpret conflicts of law and arrest someone, but in the end the Supreme Court (and its inferior courts) has the sole constitutional authority to decide whether someone will be punished under the statute or not (because the statute was unconstitutional). You have been given no specific authority by the constitution to resolve conflicts of law, the court is given that authority (at the only time it really matters). You could say they only have authority over each individual case, but since every case is under their authority there would be little reason to continue charging the same cases over and over again for the court to dismiss (thus in practice their decision is law even without stare decisis if they choose to remain consistent).
9.18.2008 12:35pm
Jon Roland (mail) (www):
Reg:

I don't think Roland's view is too different from what Michael Stokes Paulson has written about judicial review, which I remember being quite convincing. I've never heard the argument applied to suggest jurors have an independent duty to nullify unconstitutional laws though, which is interesting. If I remember the jury oath, they are to apply the law as given by the judge, and I think the oath comes from statute. They don't swear to uphold the constitution like other government employees do.
9.18.2008 4:18am


Yes, my views are similar to Paulsen's, and to those of Randy Barnett, Gary Lawson, and Lawrence Solum.

See
* Michael Stokes Paulson, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J.
217, 291 (1994) (arguing “the power of juries has a stronger claim to legitimacy than does that of judges”
because “the jury’s interpretative supremacy is substantively conferred by the Constitution”).

* Michael Stokes Paulson, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535 (2000).

* Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18 Const. Comm. 191 (2001).

* Michel Stokes Paulson, Lawson’s Awesome (Also Wrong Some), 18 Const. Comm. 231 (2001).

* Randy Barnett, Trumping Precedent with Original Meaning:
Not as Radical as It Sounds



* [U.S. district Judge] William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution, Suffolk U. L.R. (2006).
9.18.2008 1:12pm
Jon Roland (mail) (www):
Plastic:

in the end the Supreme Court (and its inferior courts) has the sole constitutional authority to decide whether someone will be punished under the statute or not (because the statute was unconstitutional). You have been given no specific authority by the constitution to resolve conflicts of law,

No it doesn't. Someone still has to carry out a court order, and other people have to let them do so, and those people ultimately decide by their own independent actions. Deferring to courts is only custom and habit. They can break that habit whenever they choose, and if the courts lose the confidence of the people in their constitutional integrity, then sooner or later court orders will be defied by those that have to carry them out. We are dangerously close to that, and everyone involved in the judicial system needs to be aware of it.

Before there was a constitution of government there was a constitution of society, which is superior to any constitution of government. It arises from the social contract, which creates the duty to mutually defend the rights of the members of society. That duty is traditionally called militia, and it is shared by every member of society, whether they have additional duties assigned to them as officials or not. As militia, we all have the duty to help enforce the law, and therefore the duty to resolve conflicts of law. No specific delegation is needed. It is implicit in the Militia Clauses, and would be even if there were no militia clauses. That duty is inalienable. It cannot be relinquished to supervisors, legal advisers, or judges. We might use judges as umpires, but ultimately judges only deserve deference if they are right, and each of us has to decide that on our own.
9.18.2008 1:40pm
Jon Roland (mail) (www):
Reg:

If I remember the jury oath, they are to apply the law as given by the judge, and I think the oath comes from statute. They don't swear to uphold the constitution like other government employees do.

The U.S. Constitution states (VI:3):

all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution

Any person sworn to duty in a court is a "judicial officer", including jurors, witnesses, attorneys, bailiffs, and reporters. However, all citizens are bound by the Constitution whether they take an oath or not.

The problem with the oaths being asked of jurors is that they are deceptive. "To apply the law as given by the judge" presumes that what the judge says is the law, but if it is not law jurors are not obligated to apply (or follow) it. It is just a mistaken opinion. So there is no violation of the juror's oath if the juror finds the judge's opinion of the law is wrong. However, there is a duty to acquit in a criminal case if the arguments on the issues of law have not been made to the jury so they can make that determination.
9.18.2008 1:59pm
Plastic:

No it doesn't. Someone still has to carry out a court order, and other people have to let them do so, and those people ultimately decide by their own independent actions. Deferring to courts is only custom and habit.

So you're saying that when the court sentences someone under the law that it's not only a jailer's constitutional right, but their duty to release them if they believe the sentence was unconstitutional? If not please clarify, if so then you're an anarchist (what reason is there to have any laws at all if each person gets to be their own judge, jury, and executioner?).


Before there was a constitution of government there was a constitution of society

Please link the text of this constitution and when the United Stated explicitly enacted it.
9.18.2008 2:40pm
Jon Roland (mail) (www):
Plastic:

when the court sentences someone under the law that it's not only a jailer's constitutional right, but their duty to release them if they believe the sentence was unconstitutional?

Correct.

if so then you're an anarchist (what reason is there to have any laws at all if each person gets to be their own judge, jury, and executioner?).

No. Each person has the duty to enforce the law, that is, the Constitution and constitutional official acts. Having a "rule of law" as distinct from a "rule of men" means people take their guidance directly from the law and not through intermediaries.

The argument is not unlike that which led to the Protestant Reformation, in which Luther and others protested against the assumption of an intermediary role for priests and the Pope.

The problem, of course, is to develop a common understanding of what the law means and requires. If law is unclear, then it needs to be clarified. If the people aren't trained to construe it, then the solution is better education.


Please link the text of this constitution [of society] and when the United Stated explicitly enacted it.

The constitution of society, like the preceding and superior constitution of nature, is unwritten, but no less real for that. It is the subject of natural law theory. Some of the provisions of the constitution of society include the making of social decisions by public convention, called by public notice, and conducted by established rules of procedure. That is how the constitutions of government are established in the first place. See
Constitutional Conventions, Roger Sherman Hoar (1917).
The Revival of Natural Law Concepts, Charles Grove Haines (1930).

In an important sense, the U.K. is still operating under a constitution of society, not a written constitution of government, since the House of Commons sits as a kind of ongoing constitutional convention.
9.18.2008 3:16pm
Plastic:

No. Each person has the duty to enforce the law...

The very definition of anarchy: Bob thinks you're guilty and locks you up. Joe thinks Bob's guilty and shoots him, the logical conclusion is that the guy with the biggest gun wins.


The constitution of society, like the preceding and superior constitution of nature, is unwritten, but no less real for that.

My favorite source for a winning arguement: My unwritten constitution says your wrong. QED.
9.18.2008 3:44pm
Jon Roland (mail) (www):
Plastic:

The very definition of anarchy:

No, anarchy would be the situation of not having a law to which all agree to be guided by, even if they don't all agree what it means in every situation.


Bob thinks you're guilty and locks you up.

Then good citizens who doubt he did so lawfully file a writ of habeas corpus, and if he doesn't prove his authority to the court, the court orders me freed. If he refuses to obey the court order, then the citizens muster as militia and free me. If the court decides he does have authority, but is clearly wrong, the militia may still free me. If the judge refuses to hold a hearing, the writ defaults to a finding of no authority, and the militia frees me. And then files a complaint to remove the judge from the bench, as well as a writ of quo warranto to remove Bob. (Prerogative writs are common law remedies, that is, arising from the constitution of society, not the constitution of government.)


Joe thinks Bob's guilty and shoots him,

Then some citizen takes a complaint to the grand jury, and if the grand jury decides the court has jurisdiction, and evidence sufficient, issues an indictment, either to the ;public prosecutor, if there is one and they trust him, or to the complainant or someone he designates to be the prosecutor, and trial proceeds. The trial jury may, however, acquit if they find Joe had a good faith belief Bob was guilty, for lack of mens rea. The grand jury issues a presentment that Bob and Joe were not sufficiently well educated on the law involved in their cases, and recommends improvements in education for others to avoid a similar situation in the future.


the logical conclusion is that the guy with the biggest gun wins.

Alas, all of law, politics, and government ultimately rests on physical force and the willingness to use it. To avoid armed conflict we try to find common understanding on points of law that can avoid that.

Your tribe might have a few guns that are bigger, but mine has more guns and is growing in number rapidly. Your tribe may be better organized, but mine may be getting organized rapidly. Do you really want it to come to a test?


JR: The constitution of society, like the preceding and superior constitution of nature, is unwritten, but no less real for that.

My favorite source for a winning arguement: My unwritten constitution says your wrong. QED.

My constitution of nature says the gravitation constant
G ~ 6.674 x 10^-11 m^3 kg^-1 s^-2
If on the basis of that estimate, I conclude it is unsafe to try to walk across a bridge, while your constitution of nature estimates G ~ 6.674 x 10^-12 in the same units, and you conclude therefrom that the bridge is safe to cross, and it collapses, plunging you to your death, you will have found a defect in your constitution of nature (misplaced decimal point), and I will survive you, even if I don't get to the other side.

The constution of society works much the same way, except that it is for describing the ways people will tend to behave under various circumstances. Understand it wrong and society collapses in violent disorder. That can result from the loss of confidence in the integrity of judicial decisionmaking, and in case you are blind to what is going on around you, that is a growing risk.
9.19.2008 4:28am
Jon Roland (mail) (www):
Plastic has exaggerated the tendency of people to disagree in the absence of deference to courts. In the early Republic people managed to enforce law with little need for courts. See The Jury and Consensus Government in Mid-Eighteenth-Century America, William E. Nelson.
9.19.2008 4:42am
Plastic:

Then good citizens who doubt he did so lawfully file a writ of habeas corpus, and if he doesn't prove his authority to the court, the court orders me freed. If he refuses to obey the court order, then the citizens muster as militia and free me. If the court decides he does have authority, but is clearly wrong, the militia may still free me. If the judge refuses to hold a hearing, the writ defaults to a finding of no authority, and the militia frees me. And then files a complaint to remove the judge from the bench, as well as a writ of quo warranto to remove Bob. (Prerogative writs are common law remedies, that is, arising from the constitution of society, not the constitution of government.)

So in short, regardless of what the court says the militia decides whether or not to free you. There's no useful function the court serves in your example, the militia does whatever it wishes in any case, again the definition of anarchy.


...you will have found a defect in your constitution of nature (misplaced decimal point), and I will survive you, even if I don't get to the other side.

That's an excellent method of verification, why don't you go around parceling out your own justice while I vote for the people I want to enact the laws and appoint the justices that I agree with and then we'll see who wins in a few years.
9.19.2008 12:44pm
Jon Roland (mail) (www):
Plastic:

So in short, regardless of what the court says the militia decides whether or not to free you. There's no useful function the court serves in your example, the militia does whatever it wishes in any case, again the definition of anarchy.

No, the couirt has the opportunity to get it right, and if it does there is no need for militia intervention. But ultimately it is the people who make a rule of law work.


why don't you go around parceling out your own justice while I vote for the people I want to enact the laws and appoint the justices that I agree with and then we'll see who wins in a few years.

It's not "my" justice, but the law, which is not the same as "whatever judges say it is". Even you are having the people decide. The question is whether they only decide at election time, and allow officials to violate the law with impunity until the next election, or exercise supervision of them throughout their terms of service.
9.19.2008 1:38pm
Plastic:

No, the couirt has the opportunity to get it right, and if it does there is no need for militia intervention


If he refuses to obey the court order, then the citizens muster as militia and free me.

Those two statements are contradictory. Please tell me the situation where court action has impact on the outcome, from what you describe if the militia decides to free you they will regardless of the court and vice versa.


It's not "my" justice, but the law...

An unwritten law that says whatever you say it does. Don't you think a formalized, written constitution explicitly agree to by the states is a better authority? Or would you rather be at the mercy of anyone that can raise a militia to enforce whatever law they make up?
9.19.2008 4:56pm
Jon Roland (mail) (www):
Plastic:

No, the couirt has the opportunity to get it right, and if it does there is no need for militia intervention

If he refuses to obey the court order, then the citizens muster as militia and free me.

Those two statements are contradictory. Please tell me the situation where court action has impact on the outcome, from what you describe if the militia decides to free you they will regardless of the court and vice versa.

No, the two statements are describing different situations, which should be obvious if you read carefully.

Let's consider an all too realistic situation. Bob, the guy introduced in the message above, is the sheriff, and he is the head of the local organized crime operation, doing such things as extorting money from the citizens and dealing narcotics, intimidating people so no one will run against him, and rigging the elections just to make sure. I get evidence of his criminal activity, but before I can take it to an out-of-town news outlet, he locks me up on a false traffic violation, and makes preparations to have me die of "natural causes".

So a good citizen files a writ of habeas corpus with the court, presided over by Tom, the local elected judge.

Now, what does Tom do about it? If he is honest, and not too afraid of Bob, he may order my release. Bob may reply, okay, you've issued the order. Now enforce it. So Tom asks the militia to free me and arrest Bob, and they do. In this case, Tom got it right. He and the militia are on the same side.

But now suppose Tom is too afraid of Bob, or, more likely, they are cronies, and partners in crime. So he rules against the habeas, or refuses to hold a hearing at all.

Now, you may say, citizens have the recourse of filing complaints with the State AG, or State Police, or FBI. Perhaps not, if all of those are also cronies and partners in crime with the locals.

We actually have such situations in some Texas counties, and I have gotten evidence of it in several other states.

A similar situation actually occurred in Athens, Tennessee, in 1946. It is called the Battle of Athens.


It's not "my" justice, but the law...

An unwritten law that says whatever you say it does. Don't you think a formalized, written constitution explicitly agree to by the states is a better authority? Or would you rather be at the mercy of anyone that can raise a militia to enforce whatever law they make up?

No, you are persisting in misrepresenting my position. Almost all of the likely conflicts are between the Constitution and unconstitutional official acts. The Constitution of the United States is not in conflict with the constitutions of nature or society. It is a partial codification of them, and it incorporates them by reference, under the term "common law". From common law we get the meanings of the terms used in the Constitution, such as "due process" and "jury". However, because the written constitution of government does not define those terms, we have to revert to the constitution of society -- the common law -- to understand them.

To continue the example with Bob and Tom, suppose a corrupt Tom tries to weasel around the problem by treating the habeas not as a habeas but as a motion to show cause, for which the burden of proof is is on the petitioner rather than on the respondant, which is what a habeas requires. When Tom rules the petitioning citizen hasn't proved that Bob lacks authority, he dismisses. But that is a violation of unwritten due process. Here is where the unwritten constitution of society comes in. Neither the Constitution nor a statute lays out what is the procedure for handling writs of habeas corpus. The militia has to go to the constitution of society for that.
9.19.2008 8:23pm