gattsuru
4hr ago
Generally have to deal with the paperwork for an FFL-SOT to (legally) buy the actual automatic component. It's in a kinda messy legal area, but more because of the legal overhead and warrantless searches from the FFL side than anything with the SOT.
You can by forced-reset triggers without any paperwork (other than any other gun purchase), but how close they match 'real' full automatic is in the eye of the beholder, and the feds are kinda schizophrenic about them. Some states also separately prohibit FRTs/
Birthright citizenship has the awkward situation where there's a lot of circumstantial evidence that the modern read isn't the same as the historical one - most clearly with needing explicit statutory authorization to make Native Americans citizens - but the modern one has been around and has so many massive ramifications that the stare decisis arguments vastly overwhelm a bare EO.
If the court finds a birthright citizenship not only supported but required by the Constitution, I could see a 7-2 or even 6-3 breakdown (though they might be styled as concurrence-in-judgement). Roberts has a lot of motivation to constrain the bounds of the decision and to get a 9-0 or 8-1 if at all possible, though, and limiting the opinion to just 'existing statutes say people born here are citizens, change the law and then we can talk again' is both easily available and bypasses a lot of the messier questions, if only because the statute (despite using the exact same words) was written in 1952 ED:the 1920s, so it simplifies all of the originalist arguments. But it would be a really obvious punt.
gattsuru
6hr ago
I don't have a position on the general question, but "jurisdictional land-grab" is a pretty common expression in discussions of law. See here for a 2015 example on pages 2 and 4; here for 2014. I think the Waters of the United States rule popularized it as a more literal term-of-art than its historical use, but the only thing I can say, and with weak confidence, is that it was coined sometime after Kelo v. New London because otherwise the libertarians would have used it everywhere.
It's heavily focused on connotation, as normal "land grabs" in the resource extraction business world usually meant large-scale destruction of natural environment and/or displacement of peoples, but the applicability here isn't that much of a stretch. The state commanding internal behavior of religious, moral, and ethical institutions is something that was both initially disclaimed and completely replaces whatever moral codes those institutions were able to field on this particular matter.
((Conversely, this is probably the stronger argument for it being bad AI-gen: a remotely questioning approach with a 23B LLM and maybe a 7B one can give concrete examples of this process: CLS v. Martinez, Rotary Club of Duarte, Bob Jones University, these are not new cases.))
gattsuru
1d ago
In the article it's labelled "Fig. 6", and it's for all convictions, not just sex crimes.
Ah, thanks. I glossed over that one. That's... a lot more of a discrepancy than I would have expected.
How did you get the correct link?
The raw text is https://substackcdn.com/image/fetch/%24s_%21JrTm%21,w_1272,c_limit,f_webp,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2Fdf803be8-5743-4154-be73-d753d4d02a59_1725x394.png, but the https://substackcdn.com/image/fetch/%24s_%21JrTm%21,w_1272,c_limit,f_webp,q_auto:good,fl_progressive:steep/ block is a helper that probably only works in combination with other code (javascript?) on the substack webpage proper.
The real CDN location is the https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2Fdf803be8-5743-4154-be73-d753d4d02a59_1725x394.png block, but it has some URL-encoded characters. %3A is a :, and %2F is /. If you don't want to manually decode it, there's a bunch of web pages that will do the change for you.
gattsuru
1d ago
I think the screenshot link needs to be this to work. Do you mind spelling out where is the 71% coming from?
But yeah, this has been a long-standing problem, and not one specific to the UK. There's also a tendency for people to get marked as white who... well, I'm not great at telling race, but it doesn't take a lot of effort for these examples. You can even get progressives to admit it happens when it's useful to their arguments. And then on top of that, many jurisdictions outright try to avoid convictions that could have immigration consequences, so two people with the same actual bad behavior might get marked down into different categories based on what their recorded race is.
I don't want to go to full radical skepticism on the numbers, here, but it's hard to take the public numbers seriously.
gattsuru
1d ago
Wolford v. Lopez Dropped
Holding: Hawaii’s law prohibiting licensed concealed-carry permit holders from carrying handguns on private property open to the public without the property owner’s express authorization violates the Second and Fourteenth Amendments.
Alito, 6-3.
Hawaii's statute here was not unprecedented. As one of multiple jurisdictions with a post-Bruen tantrum bill, it joined New York City, Chicago, New Jersey, California, and Maryland. It was unusual only in the sense that the 9th Circuit did not offer an injunction, even as the California law had been enjoined by the same court and panel.
In that sense, this case will not have broad impact: only Hawaii had a standing version of the statute, Hawaii has separately made possession and lawful carry near-impossible in ways this case didn't touch, and the holding is specific to this case. On the other hand, this sticks a fork in the other five lawsuits, as much as anything can be a sure bet when it comes to law or judges doing their jobs, and there's a lot of dicta that has broader implications. On the gripping hand, this court has been shipping broadsides and warning shots on the Second Amendment for over a decade; it's hard to expect the actual holding and clear rule to stick, and implausible any amount of hinting dicta would.
Some general notes:
- The majority is even more straightforward than I expected. Alito is, bluntly, padding the majority, it's still only 24 pages, and even then it's still half history lesson and a couple pages of a lengthy hypothetical to explain the statute's impact on the law-abiding.
- It's also very loud about it. Alito's a grumpy writer at the best of times, and there's a lot of the text that's telegraphing his dislike of the lower court and state legislative defiance, here. The "Spirit of Aloha" shows up, and VanDyke gets a nice quote. The biggest tell is just "After Bruen, Hawaii and four of the other five States called out by our decision adopted a new method of restricting law-abiding citizens from carrying firearms for self-defense."
- Alito does still duck on the question of the law's purpose, though: "Petitioners and the United States argue that the new default rule was enacted to undermine our decision in Bruen, but whatever the purpose of the new law, the shift from the old common-law rule unquestionably imposed a new and significant burden on the exercise of the right that this Court recognized in Bruen."
- The analysis of historical analogues takes up the most paper, but Alito's "step one" analysis has the most meat to it. A lot of lower courts have ducked the Second Amendment by including interest-balancing or historical analogue tests before a plaintiff can even argue the Second Amendment is implicated, and Alito pretty heavily ties that off if they follow the holding here. Big if, though.
- It's a 6-3 split. Duh. Technically the liberal dissenters are just saying Bruen shouldn't cover this law. Kagan by saying the historical analogues are close enough in a way that would make any law an analogue for anything else in a one-paragraph dissent that's threadbare, while Sotomayor and Jackson draw up an alternate universe where it was just a property law and didn't implicate the Second Amendment at all. But that's a pretty weak fig leaf, and Jackson outright says "I think Bruen was wrongly decided". There were a lot of people trying to pull tea leaves from Hemani, and the tea leaves are just that they didn't want to be voting against potheads, and that's not going to apply to anything else.
- There's a Barrett concurrence that mostly seems written to counter the Sotomayor/Jackson position, which is fair, but also kinda shooting fish in a barrel since Jackson doesn't really seem to be interacting with concepts like "We don't do this in the 1A context". She does also bash Hawaii's attempt to use Black Codes as support, which are joined by Thomas and Gorsuch. There's a II-A section that explicitly draws out what sort of prohibitions she would accept, that notably no one else (even Roberts!) joins... but it's also more constrained than the exceptions Alito and Roberts have signed onto before, so I dunno that it's worth reading too deeply into it.
- At least in the short term, both Wolford and Hemani are likely to mean more for what happens to other cases, not their own holding. There's still the hardware and under-21 cases, they haven't been granted or denied cert yet, and not much time before the summer break. The narrowness of these decisions would make any GVR clearly pretextual, and pretext that's doomed to fail, especially in cases like Duncan that have already been GVR'd once before in Bruen. At best, it buys two years while Roberts yells 'don't make me pull over' to brats who know he won't. ... but that doesn't make it implausible.
gattsuru
1d ago
The former ends up as serosorting, either because people avoid serodiscordant pairings or everyone who doesn’t ends up HIV positive, and either form is compatible with enough ART compliance to drastically reduce the threat of new infections, even if out of survival than for any moral cause.
It’s definitely not good, both in the obvious ways and in some less obvious ones (mixing multiple strains of HIV and other STDs is a bad idea).
But actively seeking to cause or receive new infections, by tautology, will mitigate at least some of those countervailing physics. While the objections to bugchasing/giftgiving are more focused on the moral aspect — and it is a moral abomination — the pragmatic side of things does exist and probably takes more of the weight if you look at it unblinkered.
The material support for terrorism charges seems the least likely to survive, and even that more because of the costs of defending the use of the statute rather than losing in court. Humanitarian Law Project supported the law even in the face of much more speech-focused conduct, but it was so highly pre-enforcement that it probably should have gotten a punt on the merits. Here, with this level of coordination, it's likely to survive... if the feds want to keep supporting it. A Dem presidency reversing on that bit would be political, but it would be arguably reasonable allocation of resources if it's the only thing being seriously appealed.
There's a lot of commentary assuming that they were charged on the designated foreign terrorist group prong, and that would be subject to review based on how well-grounded (or liked) Trump's designation of antifa is, but there's a separate "predicate acts" version that doesn't require the designation, and it looks like that's the version used here.
The fireworks-as-explosives bit and destructive vandalism are pretty mainstream, and they're a pretty sizable part of the sentence. They're also such a sizable part of the sentence because of the terrorism enhancement.
I'm not a fan of prosecutors being able to bring up owned materials that were not used in the crime -- especially medical gear like tourniquets -- but it's pretty well-supported by the judiciary. From a pragmatic, rather than legal standard, the combination of bringing AR-15s, tourniquets, and body armor to a place you intended to throw lit fireworks at people is uncommon enough a behavior that it's a reasonable thing to take inference from.
The sentences seem high for the pure aiders-and-abetters, since they weren’t convicted on pretty much anything involving the shooting itself, but that’s easier to raise as a philosophical argument than as a legal one. The courts have pretty strictly constrained proportionality complaints and condoned inclusion of uncharged conduct, and it was only a pretty recent sentencing guideline change that prohibit (mostly) the use of acquitted conduct.
gattsuru
2d ago
There's a small faction of the tumblrite left that's willing to... 'defend coomers' is probably a strong word, but at least make allies of convenience with them. It tends to be very flaky around the more it involves sexualization of women and especially women-as-coomers-like, but it's there.
But they mostly fall into the hard-progressive activist section; they just have a broader understanding of the correct sociosexual development.
gattsuru
2d ago
Sorry about the nitpick.
Because it's hard to fuck in a fursuit without getting heatstroke? Should I even ask? Do I really want to know? Tell me anyway.
Just picky about his hookups (cw: nsfw audio). Dude's pretty built, so I guess he can afford to be, but pretty far from what the stereotype would say.
There's a social conservative complaint that 'demisexual' just describes normal sexual functioning, and from a social conservative perspective that's probably not wrong so much as overloading the definition of 'normal'. But when the uwu maid outfit gay guy is less comfortable with a one-night stand than urquan, it points to something that exists as a meaningful distinguishing marker.
Uh, I'd caveat that the summary has 20% of HIV-negative men in the sample not caring about the HIV status of their partners, and the full document has 7.5% as HIV-negative seeking HIV-positive specifically. That's not the strict definition of bugchasing -- they could theoretically just practice very safe sex -- but it's closer than the HIV-positive-seeking-HIV-negative 1% number (actually 0.4% in the full paper).
On the other hand, I'll also point out that the sample was selected from a 2003/2004-era bugchasing-specific website, and that the total N=1228. That's... not representative, and while it's probably not the strict maximum (ie, I think there were probably more than a hundred bugchasers in the United States in 2003), it's closer to that than a good population-level estimate. I'm... not sure there even is a modern equivalent -- in addition to the survival pressures, a lot of the reasons behind bugchasing-as-a-kink just collapsed as it became understood HIV could be avoided or managed.
I'm aware of one bug-chasing-adjacent incident (technically, just an HIV-positive guy being incredibly careless, but close enough for government work) in the furry fandom, and the convention circuit treated the guy more seriously than they did a fellow who brought a loaded gun. Even as a fantasy, there's only two-digits worth of bugchasing images on e621; that doesn't just get dwarfed by (other) snuff or gore as a category, it gets dwarfed by extremely specific forms of gore. A quick google search pointed to a modern descendant of the website Grov-Parsons monitored... with <500 members. I couldn't find many others, and none of them were bigger.
The end result of the mix points heavily to "if you want to stop X from happening, stop X from happening", not fucking around three or five levels distant.
((Conversely, there are serious financial and resource allocation arguments. PReP spending is a nonzero line item, and while the actual breakdown by orientation and location gets complicated because it's nonlinear, but the Ryan White CARE Act started in the hundred-million range and got to the billion range. Not the worst payoff compared to some other public health spending, at least if you buy the metrics at face value, but neither would they be topping the chart at effective altruism metrics, nor do them seem immediately better turn than 'dudes, just go with frottage'.))
Separate from the bugchasing thing, I'd also point out that many of the people who seem extremely transgressive in summary aren't necessarily so in actual sexual practice. There's a thirst trap fursuiter on youtube with a recent output titled things like "How to FLUSTER your BOYFRIEND", "GOOD BOYS sit on your LAP", "I got EXPOSED for this..." and has a body count of six, total. I'm not going to say that all of the extreme and transgressive people aren't, in reality, but a lot of people who seem like a lot are much more boring than it looks.
gattsuru
3d ago
That's a very painful watch. It's not so absolutely clear that I want to stake a wager on it, but there's... very few alternative explanations I can come up with. Doubly so in Canada; it's not like the cop could argue that she though it was a CCWer gone mad.
((Extremely dark humor:
gattsuru
3d ago
The steelman is that the internal experience of puberty is supposed to be extremely unpleasant for trans people, and the later stages makes later transition much harder.
The 'very unpleasant' bit is more obvious for FtMs -- menses isn't fun for anyone and I'd assume it feels worse if the whole 'this is an alien thing rolling in my belly' sensation never goes away, breasts have obvious social impact and also just kinda suck from back pain and bras perspective to the point, and even in the modern day there's an absolute fuck-ton of social threat stuff a lot of young women suddenly get thrown at them. But the guy side isn't great, either: acne, cracking voice, more acne, your junk getting a mind of its own, and a lot of the things that make up for it for normal guys are actively unappealing for MtFs.
The transition bit is... the ugly paradox. Trans people really don't like to think about how it can be harder for some people to pass, no matter how much effort they put into it, but it's a thing, they know it's a thing, and there's a lot of tactical decision-making about how it's a thing. Both as a "I wish I had" moment, because a lot of trans activists only transitioned later in life, and because a there's a variety of pragmatic effects downstream of transition by physics and by law. The MtF who's six-foot-six, has a prominent Adam's apple, body hair everywhere, and enough upper arm strength to bench press a swimming team is going to have a lot more expensive, painful, longer-lasting surgical intervention just to pass to someone with poor gender recognition from thirty feet away. An FtM who has to get bras special-ordered and spent five years with the habits downstream of that isn't going to mode-switch into how cis guys act quickly, if ever.
The theory was that if someone's staying consistent in gender presentation for a year or two, you could be a lot more confident that they're not going to desist and get them to an age range where knowing consent is more realistic.
I think the trans movement badly over-corrected here, both in how early they started using puberty blockers (to the point where it made healthy life after transition more difficult), how long they used them, and by neglecting the amount of information people do pick up from early puberty. But while the former has a lot of problems downstream of bad practices by advocacy groups and active obfuscation by doctors of negative results, the latter is a more reasonable mistake. The numbers, even by social conservative expectations, had youth desistance just pretty damned rare. That was figmentary -- until 2020ish, prepuberty gender weirdness just wasn't be recorded much at all -- but it wasn't just hopes and dreams, either.
gattsuru
3d ago
Employers should have a right to free association and should be able to fire someone for any reason they please.
Bostock begs to differ.
gattsuru
4d ago
We're down to the last (ish, there's one clean-up after) conference of the session on 6/25. No decision on Duncan and its sibling cases, yet. If granted, they'll be the most-relisted cases ever granted cert. If they're held over the summer into the October session, it will be completely unprecedented; if relisted over the summer, they'll be in the running for most relists period.
Another separate note is that separate cluster of cases have just left a more 'conventional' silent hold: the 2A 18-20 age range cases, Daniels, Bivens, Sam, McCoy, Glass, WVCDL, Harris, and Picon. These had all been briefed a while back, listed for conference once, and then disappeared. They reflect an active and deepening circuit split.
The conventional knowledge is that they were held for Hemani -- but Hemani's question, oral arguments, and decision had no overlap with the logic needed for their decisions. A GVR would be, at this point, a nakedly pretextual punt.
Which doesn't make it unlikely.
gattsuru
6d ago
Yeah, the prosecutor's office seems to have been more interested in getting someone, rather than necessarily getting the right guy. I've got a bit of sympathy. Funt seems like a jerk in the extent that he'll file stuff he knows is not true, rather than just being on the other side, and there's a long-standing tendency for aggressive defenses to call everything down to a sneeze Giglio material. But 'joking' about sending detectives to interview a defense lawyer is inappropriate without far great evidence of genuine illegal behavior, and some of the occlusions here did more to make the conviction riskier, rather than actually mattering.
((This points to a general problem with Brady/Giglio, where police and prosecutors have a lot of incentive to abuse it in marginal cases where they're likely to lose anyway, aka innocent people. But that's a broader 4th Amendment and 14th amendment problem.))
Krasner's team... philosophically, they're just opposed to the death penalty as a category. Charitably, that's out of a feeling that it was disproportionately applied on the basis of race, but they're really heavy on defense-oriented lawyers who just like getting thirty bites at the apple regardless of the sentence or crime, so the charitable argument isn't very strong. The court might be overstating things when they say the DAO is trying to overturn literally every death sentence -- there's a couple non-African-American death row inmates Krasner might skip, either due to the severity of their crimes or not seeing the racial nexus as applicable there -- but I wouldn't consider it a safe bet, either.
Tactically? They probably got away with it for a while, and the courts have genuinely had to fudge the rules to handle it. Toa's opinion has a dissent with multiple signatories, and that's not great in my opinion, but it means that, at least by Pennsylvanian standards, Krasner's team and behavior are not hilariously illegitimate as a tactic.
gattsuru
6d ago
Uh... there's a bunch of different ones, here.
Robert Wharton's homicide of Bradley and Ferne Hart, and near-killing of their infant childen, is the one that George and Winkelman got in hot water over. The evidence here is strong: Wharton confessed to killing Ferne shortly after the murders, he had a motive, he'd previously been caught threatening the couple (over his own shoddy work), he had a lot of property taken from the victim's home, and one of the people who was with him during the previous threats but not the murders said he admitted to the killing. The only serious current dispute is the penalty: George and Winkelman claim that he'd behaved well enough in custody before his sentence such that the defense's failure to raise the evidence was a serious fault requiring a new evaluation of the death penalty, and the victim's relatives were okay with a life sentence; the real story is that he'd been a sociopath in prison and that now-grown daughter who was very nearly a third homicide victim was never consulted.
That's probably why the court is so very direct in the one I linked to.
ToaKraka's link is about Lavar Brown, who had two separate homicide cases: the killing of Robert Crawford, and the robbery of Michael Richardson where the ringleader of the robbery killed Richardson. The Crawford case is straight-forward: a couple eyewitness saw Brown shoot Crawford multiple times, police caught him a little over a minute later, and he tried to ditch the gun while the police cornered him. Brown's lawyers have tried to get process relief under ineffective counsel, but it's pretty pretextual. The complicated part here is that the Crawford killing is pretty bog-standard gangland violence; Brown's many other serious convictions very likely put the death penalty on the table.
The Richardson one is the most iffy. Christopher Kennedy did the actual shooting; there's no serious debate about that, and since he's already been resentenced to life, the CIU probably won't try. There were allegedly five people in on the plan, and Brown was arrested a couple hours after the shooting with one of the people involved. Brown was convicted for felony murder as having planned and assisted the robbery, and since the plan itself involved at least shooting a security guard 'in the leg' and Crawford if he fought back, it's a pretty central example of what the felony murder law is there for. That's not a death penalty crime itself, but it's one in a long series that made the Crawford killing death-penalty eligible.
But there were no eyewitnesses or physical evidence, and Brown probably didn't enter the store himself during the robbery-turned-homicide. The big evidence was from other people involved in the crime, who were not exactly the most credible witnesses on top of also wanting to save their skins. The CIU claims that one, Vann, who was central to Brown's conviction, had previously also pointed fingers at a woman with the last name of Paige, who was in jail at the time, and that the police never turned that evidence undermining their already-shaky main witness over. That's a "done-wrongly" argument, but both combined would genuinely strike at the strength of the conviction.
It's also a somewhat-plausible one? Giglio incriminating statements are one of those things that prosecutors sometimes 'lose', or just don't write down in the first place. There's a specific e-mail from the Philadelphia DA's office that Krasner's been waving around saying that the police were just not writing down when a witness contradicted their testimony (page 36 on the pdf), and that's an overread, but it does say that they didn't write down or disclose every time a cooperating witness was flaky or inconsistent.
But it's not clear it's happened here enough to matter. The only evidence about Vann fingering Paige seems like it's pulling from an unrelated investigation that was on the same fax. The undisclosed material that's on record is just Vann's other information he'd provided in unrelated sources, which is arguably not Brady or Giglio. The stuff that's implied as undocumented is just a woman named Lyons having a proffer session where she placed Brown at the crime but minimized her own involvement -- and that's a situation where the only testimony and records are coming from a defense lawyer tied to Krasner who had been defending Lyons, and the most expansive version doesn't actually make Brown look innocent.
The prosecutor's office still looks slimy, and I would be kinda surprised if the CIU genuinely couldn't find a single debatable conviction, but these don't look it. Don't have the time to look at the other ten cases right now.
gattsuru
7d ago
One more subtle ramification: the under-21 cases. There's a handful of these sitting on the docket, and I do mean sitting. Each one hit a single conference and then disappeared: neither relist, denial, or formal hold. They weren't scheduled from the 6/18 conference.
These cases reflect a standing circuit split. One has already been GVR'd once before. There's a mix of interlocutory and final order cases, and cases where the law was found unconstitutional and where it was upheld. There's even a class action one thrown in for yucks.
The common knowledge was that they'd been held pending Hemani. That's a lot less plausible, now that Hemani's been constrained to its very specific borders. A GVR post-Hemani is a joke.
It's still possible that's the court wanted to get Hemani and off its plate first. But these cases notably weren't scheduled for the 6/18 conference, and presumably SCOTUS knew Hemani would be released at least a couple days before it dropped. and there's only one normal conference left this session: 6/25. If they're not listed for that one by Wednesday, they're not getting a grant.
The more morbid possibility is that the simplest under-21 challenges are self-mooting. That's why there's a class-action lawsuit at all, why the organizational plaintiffs have been cycling in and out new people, and why Reese had my dander up. Too many people hit their 21st birthday, or an organization doesn't announce replacement candidates fast enough, and the case not only disappears, even a lower court victory can be vacated. And while these cases hit a lot of people, signing onto a federal lawsuit is personally costly even if someone else is paying all the legal bills, especially for a 19-year-old who's living, studying, or working in a Blue State.
gattsuru
7d ago
For bonus points:
After multiple hearings and extensive briefing, we find that Nancy Winkelman knowingly made misrepresentations to effectuate a policy of vacating all death sentences on appeal, at PCRA, or on federal habeas review.
Of the many cases that the CCRC considered, it invariably recommended that the DAO concede death penalty relief, usually on ineffectiveness grounds. Winkelman agreed with all these recommendations. As we explained in George, the DAO thus eventually conceded relief at post-trial as to all death penalties.
Remarkably, although George mentioned both the Circuit’s Remand Order and positive prison adjustment evidence, he failed to inform the CCRC of the Circuit’s direction to “reconstruct the record,” and mentioned none of the anti-mitigation evidence in Wharton’s prison record that the Circuit had explicitly ordered the Parties to reconsider. Yet, Winkelman did not question these glaring omissions, or the conclusion that Wharton’s prison record was “exemplary,” even though she knew from the Circuit’s Remand Order that his prison record contained significant anti-mitigation evidence and was not “exemplary.” Winkleman told us that she remembered nothing about the CCRC meeting at which Wharton was considered, except George’s failure to present anti-mitigation evidence and the CCRC’s decision. We do not credit that testimony.
After the OAG submitted its brief describing the anti-mitigation evidence the DAO had failed to disclose, Judge Goldberg held hearings on the matter, permitting the OAG to participate. Entering her appearance, Winkelman herself authored and signed a vigorous eight page “Objection” to the OAG’s participation as a “full-fledged adversarial party.” Winkelman repeated that the DAO decided to concede “after a thorough review” by the CCRC. Winkelman protested the OAG’s “in-depth factual investigation,” and its “highly aggressive, partisan stance."
Yet, in its Remand Order, the Third Circuit explicitly referred to Wharton’s “very serious misconducts,” and possession of a “confiscated weapon” while in prison. Given these explicit references in its Remand—an Order Winkelman acknowledged was unique in her experience—her denial that she knew about the anti-mitigation evidence necessarily was not true.
In her Answer to Putnam’s Petition, Winkelman argued that the Petition should be “dismissed with prejudice” and the Order to Show Cause “discharged.” . In support, Winkelman, inter alia, denied that the DAO had not misrepresented to Judge Goldberg respecting the CCRC’s review:
[P]rior to conceding relief, the CCRC conducted a careful review of the records concerning Wharton’s case, which included anti-mitigation evidence (but not the escape attempt).
This is not true. Winkelman and George testified before us that George’s presentation included no anti-mitigation evidence. George’s memo to the CCRC also included no reference to anti-mitigation evidence. Nor did it include the Circuit’s instruction to reconstruct the record to include anti-mitigation evidence.
George, related, has been left arguing :
As set forth in the Opening Brief, all of the Panel’s relevant findings werepredicated on its unsupported conclusion that the DAO had a “policy” of conceding error in every capital case and that Mr. George’s concession in this case was made pursuant to that policy. Op. Br. 27. Disciplinary Counsel alleged in the Petition for Rule to Show Cause that the DAO had a policy of conceding death penalty relief in every case, regardless of the merits of the case. App.492. The Panel agreed, stating that Mr. George conceded death penalty relief in all post-conviction and habeas matters, that he was “mendacious” because he adamantly denied the existence of such a concession policy and that he was the “architect” of the policy’s implementation. Yet in characterizing the record as “overwhelming,” Disciplinary Counsel fails to identify any evidence that such a policy existed other than providing the number of conceded capital cases, id. 33.]
gattsuru
8d ago
This is particularly frustrating if you do think there's a place for the various post-conviction review panels. Wrongful convictions do happen, whether because of new technology that makes it genuinely possible to identify or exonerate killers, bad science that was left to bite too long, or overt bad acts by prosecutors.
The majority here highlights the Chester Hollman case as showing how financially high the stakes are, and I'm not convinced that the man is innocent, but there's meaningful and concealed contemporaneous evidence. I'm genuinely not sure that he could be convicted again today, even before a fair court, and even discounting the clawbacks by witnesses.
But this stuff is endemic. Radley Balko went on a crusade in Shinn v. Ramirez, about the Barry Lee Jones execution. His version was damning, and if you believed the defense, it was clear evidence that Jones could not possibly have caused the death. And then you look at the medical information, and you realize that the defense position presupposed an extremely narrow pattern of injury that did not have strong external evidence, and only made it slightly more possible for anyone else to have caused the injury, including just 'Jones, 12 hours earlier, when he was also there'. I've pointed before the Innocence Project's death penalty page being a near 50:50 mix of serious claims and barely or non-credible ones.
gattsuru
8d ago
It's... uh, a bit worse than that. The PA Supreme Court brings up 11 people where the DA Office seems to knowingly provided false information to the courts in order to free serious criminals, mostly murderers and one armed robber, ranging from trying to bind the court to incorrect concessions (another case involving this very same guy) to concealing parallel state-federal operations (Antonio Martinez, this case again) or concealing or failing to recognize important facts of the case (Robert Wharton, Kevin Johnson), to just straight-up lying about the basic facts of the case (Dontia Patterson).
Given that the supposed 120 concessions of error, that the DAO has been caught trying to illegitimately free convicted criminals in at least 9% of concessions. Dissent quibbles that those cases had some overlap, so it's probably worse than that.
gattsuru
8d ago
gattsuru
8d ago
It's one of those rough cases where there's not really a lot to talk about.
Will give a mea culpa that, when the case first got cert, I expected it to be either a loss or even-more-limited than this.
In theory, this is a big deal, since there's tens of millions of recreational pot users, and not a zero overlap with gun owners. In practice, this law was almost never brought as a random conviction: even in Hemani's case the feds were probably using it as a workaround for the multitude of other allegations that would have been harder to prove. Rough fermi estimate says low hundreds of charges on an annual basis, two or three thousands of extant prisoners, and for a lot of them there's indica of addiction, or individualized danger, of present intoxication, or of serious addiction. And pleas that get complicated when it comes to appeals. They might still get off with time served, or new cases brought, even if the feds could win in court, simply because no one really cases about the trivial cases enough to seriously fight it. But it's a limit in breadth.
While I'll argue against VanDerStok-style division of facial and as-applied challenges such that the as-applied ones are minimal, though, this case seems like a more natural use than most. If the feds had used this law as a real analogue to the habitual drunkard law, honestly, I don't think the court would have opposed it, and I don't think many gun orgs would have either. That's messy because a strict prohibition for marijuana definitely was within the original intent of the law, but it wouldn't be the first saving construction.
But in turn, the saving construction here isn't really splitting off parts of the law, just "you gotta try harder than this, bro". We'll see if that ends up mattering much at all.
There's some dicta fighting against the sometimes-hilariously broad levels of generality that the lower courts have been going with to justify pretty much any restriction. If lower courts were paying attention, the 'how' and 'why' emphasis could matter a lot. Big "if", though.
Makeup is kinda interesting. By the numbers, it's a unanimous 9-0. But Sotomayor and Jackson have a concurrence-in-judgement that's just an outright call to overturn Bruen and reinstate means-end scrutiny. And, notably, they do so without actually saying this conviction would fail under a means-end scrutiny. Kagan and Alito join a more conventional concurrence, where they basically say they'd stop at finding the habitual drunkard analog didn't cover this case. I think that's just dividing out the "Controlled Substances Act isn't tied to dangerousness as a category" reasoning, but I might be missing something more specific.
It's weird that it's come out before Wolford, which was argued months earlier. Not unprecedented, given the 'unanimous'-ish nature of this one, but suggests that there's a bunch of back-and-forths in Wolford's dissent.
It could make drug users dealing with ATF forms really interesting. And possibly some state permit-to-purchase laws go really weird. If lower courts apply it consistently. Gonna be real weird results downstream of it, but given New Jersey's reaction to Bruen, I don't expect them to suddenly get circumspect about past drug use.
gattsuru
8d ago
Hemani rules against the marijuana prohibition, in a fairly technical breakdown that rounds to 9-0-ish on the judgement.
In many respects, this case is a narrow one. We do not address efforts to ban addicts, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.
There's a little bit of fun - stay for the Thomas concurrence railing against the Commerce Clause - but it's not a great salve even for the specific case of marijuana-using-gun-owners. There's little broader ramification to the logic that hasn't already been established, and while the dicta preclude the level-of-generality games that many lower courts have relied on, it's not strict enough dicta to stop them or even be read as a serious warning.
But mea culpa; I did not expect a pro-Hemani ruling.
We'll see if Wolford has bigger impact.
FCfromSSC was talking about FRTs, which don't fall under the strict definition of machine guns.
((uh, arguably. I am not a lawyer, no guarantees that the ATF won't shoot you and your little dog too anyway.))
But the FOPA1986 specifically prohibited the transfer or possession of machine guns unless authorized by a state or federal agency, unless they were lawfully possessed before that period (the ATF further regulated this to require a tax stamp). Combined with the other exceptions and regulations, this basically made new manufacture or transfer illegal for normal people.
Except transfer or possession that the ATF authorizes are excluded, because they're a federal agency authorizing FFLs. And while the ATF has a lot of discretion for giving out FFLs, once they've done that, the SOT that authorizes transfer or manufacture of NFA weapons is just normal tax documentation, and the ATF has no authority to reject it. You just can't sell any NFA weapons to anyone that isn't in the same category. It's really stupid, and it's the sort of thing where you're giving the federal government your home address and fingerprints, but it's... pretty much just straight-up legal.
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