The Supreme Court, in what is probably its most important decision of the year, decided that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment’s right to possess a gun. The ruling prevents the states from passing laws prohibiting people from owning guns, although it leaves the door open for limited exceptions such as preventing convicted felon from owning guns.

The plurality opinion, written by Justice Alito, relying upon the Court’s Heller decision of two years ago, finds that the right of self defense is a fundamental right and that in order to maintain the right citizens must be allowed to have guns in their homes. In the process the Court found statutes in Chicago and Oak Park, Illinois which limited the right to possess guns to be unconstitutional.

In applying the Second Amendment to the states the Court reversed case law that has existed since the Nineteenth Century. The Bill of Rights originally applied only to the Federal Government. But after the Civil War the Fourteenth Amendment was adopted. Section One states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Several years after the Fourteenth Amendment was adopted the Supreme Court decided Cruikshank. In Cruikshank The Supreme Court exonerated a group of white men accused of killing a group of African Americans who dared to march through their hometown on the Fourth of July. Among the charges were depriving their victims of various constitutional rights, including the right to bear arms. The Supreme Court held that the Constitution does not guarantee the right to bear arms and therefore Cruikshank and his fellow murderers could not be convicted of depriving the African Americans of the right to bear arms.

The McDonald Court found a long history of self defense. It traces the common law right to the 1689 English Bill of Rights. In 1765 Blackstone call self defense “one of the fundamental rights of Englishmen,” At the Constitutional Convention both Federalists and Anti Federalists recognized the importance of self defense. By 1820 thirteen states recognized the right to bear arms in the state constitutions.

After the Civil War, southerners attempted to disarm African Americans, many of whom served in the Federal army. Congress fought back. The Freedmen’s Bureau Act of 1866, recognized

“the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.”

During the debate on the Fourteenth Amendment Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” One of these,was the right to keep and bear arms: “Every man . . . should have the right to bear arms for the defense of himself and family and his home-stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”

The test for incorporation is whether a right is is fundamental to our scheme of ordered liberty and system of justice. The Supreme Court found that based upon the history of the country and the history of the Fourteenth Amendment the right of self defense is fundamental to our scheme of ordered liberty and system of justice. As such Second Amendment right are incorporated into the Due Process Clause and are enforceable against the states.

In my last post we looked at a section of the Anti-terrorism and Effective Death Penalty Act (AEDPA) which made it illegal to “knowingly provide material support or resources to a foreign terrorist organization.” In that case the Supreme Court upheld the law against a claim that it violated due process by being vague. Today we are going to look at another case in which the Supreme Court last week ruled that a statute violated due process by be being vague.

In Skilling v. United States the Supreme Court vacated the conviction of former Enron executive, Jeffrey Skilling for conspiracy to conspiracy to commit “honest-services” wire fraud.

IN United States v. McNally the Supreme Court limited the crimes of mail fraud and wire fraud to those in which the perpetrator attempted to gain a material reward. Excluded were crimes that deprived the citizenry of good government. To ameliorate the situation Congress passed 18 US 1346 which defined the term “scheme or artifice to defraud” to include a scheme or artifice to deprive another of the intangible right of honest services. But in Skilling the Supreme Court found that the term, “honest services” to be vague. It covers many things and it is unclear exactly what is covered and what is not. Therefore it limited prosecution for honest services fraud to those involving bribes or kickbacks which it claims is the core of an honest services prosecution. The Due Process Clause’s void-for- vagueness doctrine requires that legislation be written

[1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.”

Since Skilling was charged with manipulating the stock market to artificially increase the value of Enron stock and there was no allegation that he received a bribe or a kickback, the conviction was vacated.

In dissent, Justice Thomas says that limiting Section 1346 prosecutions to those involving bribes or kickbacks does not fulfill the intent of Congress in passing the section. After all, Section 1346 was passed to fill loopholes caused by McNally and the defendants in McNally did not receive a bribe or kickback. While he agrees the statute does not stand up to the requirements of due process he would invalidate the law and let Congress start over again.

Several times we have discussed the habeas corpus related sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Today we look at another section of the act, 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provide material support or resources to a foreign terrorist organization.” The AEDPA was part of Newt Gingrich’s Contract on America which was passed and signed by President Clinton following the bombing of the Oklahoma City Federal Building.

The Supreme Court held in Holder v Humanitarian Law Project that one can be convicted of a crime for violating 18 U. S. C. §2339B even if one does not intend to support the violent acts of a terrorist organization. The plaintiffs in Holder want to support the lawful, non-violent activities of a couple organizations who are considered terrorist organizations by the government.

The Kurdistan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE) are on the Secretary of State’s list of foreign terrorist organizations. The plaintiffs filed suit asking that the government be restrained from enforcing the AEDPA against them for supporting the humanitarian and political goals of these organizations. They claimed that the material support provisions as applied to them would violate the First Amendment and the Due Process clause of the Fifth Amendment. The Due Process Clause is violated whenever the law is so vague that one cannot tell what conduct violates the law.

The Court pointed out that the terms of §2339B have been clarified several times to make them less vague. For example “training ” is defined as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge” and “expert advice or assistance” is defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” With the definition in the legislation it is hard to say that the plaintiffs did not know what behavior is illegal.

The second, and more difficult issue raised by the plaintiffs is the question of whether the statute violates their freedom of speech under the First Amendment. As to the First Amendment’s guarantee of freedom of speech the court found that while many of the activities the plaintiffs want to perform such as training members of the PKK on how to use humanitarian and international law to peacefully resolve disputes, and teaching PKK members how to petition various representative bodies such as the United Nations for relief involve speech they also violate the law which forbids “training” and “expert advice or assistance.” The majority opinion by Chief Justice Roberts finds that the extreme danger that terrorist groups present justifies the limited impact upon free speech of the statute. It points out that the statute does not ban independent activities, only those that are coordinated with the alleged terrorist groups. These group have killed many people including Americans. Furthermore, our treaty obligations require that we inhibit the activities of these groups. The skills the plaintiffs want to teach PKK and LTTE can be used not only for good but also to promote terrorist activities. The terrorist organization can use any funds they receive as a result of the plaintiff’s activities are fungible and they may be used to promote terrorism.

The dissent by Justice Breyer stresses the high burden that the government must demonstrate standard before impinging on the right of free speech. It points out it is political speech that it is at issue and that the government’s burden is highest when it wants to prohibit political speech. As the dissent points out, “Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights.” Strict scrutiny is needed when the government denies freedom of speech on content grounds. The dissent further states that the government has failed to prove it’s “fungible” claim and the mere fact that speech may lend legitimacy to the organizations is insufficient reason to deny the plaintiff’s claim to freedom of speech.

The dissent suggests that since the statute bans “material” aid that it only bans that aid that promotes terrorism and it suggests remanding the case to determine whether or not the plaintiffs proposed actions aid the organizations to commit terrorist acts. It would hold that the statute is limited to banning support for terrorist actions and not peaceful actions committed by groups on the Secretary of State’s list.

As President Kennedy said: “There is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment.”

Percy Dillon was convicted of various drug offenses including some involving rock cocaine (also known as crack) in 1993, He was sentenced under the mandatory guidelines that were in effect at that time to 322 months in prison. At sentencing the judge said that if he had a choice he would sentence Dillon to five years but the guidelines left him with no choice.

In 2005 the Supreme Court in United States v. Booker found the mandatory guidelines an unconstitutional violation of the Sixth Amendment right to have facts used to aggravate a sentence found to be true beyond a reasonable doubt by a jury. As a result the guidelines became advisory.

In 1987 the Sentencing Commission set guidelines for the sentencing of Federal offenses. though widely criticized the guidelines, based upon drug quantities treated rock cocaine 100 times as harshly as powder cocaine. In other words, two people, one convicted of possessing 10 grams of rock cocaine and the other convicted of possessing 1000 grams of powder cocaine got the same sentence.

In 2007 the Sentencing Commission attempted to alleviate the problem by decreasing by two levels the penalty for rock cocaine. Thereafter the ratio was approximately one to twenty. The following year the Commission gave judges the power the power to make the change retroactive. But judges were only allowed to modify the sentence in so much as the former sentence did not comply with the new guidelines.

Dillon claimed that he should be resentenced, not only to take into account the change in the guidelines but also to take into effect the now voluntary guidelines and other corrections in his sentence. He claimed that under Booker the mandatory guidelines are unconstitutional and he should get the five year sentence the judge wanted to give him at his original sentencing. According to Dillon to merely reduce the guidelines by two levels maintained the mandatory guideline and therefore violated Booker.

But the Supreme Court held otherwise. In the majority opinion by Justice Sotomeyer, the court held Booker was was not violated. The general rule is that “A federal court . . . may not modify a term of imprisonment once it has been imposed.” However Congress imposed an exception to the rule in the Sentencing Reform Act of 1984 to allow the Sentencing Commission to reduce the sentence of inmates after a significant reduction in the guidelines. But the reduced sentence can only bring the sentence into line with the new guideline. Therefore, since Booker is not retroactive Dillon’s sentence can be modified to reduce it by two levels to bring it into line with the current guidelines but it cannot be changed in such a manner as to take into effect the Booker decision.

Jeff Quon, as a member of the city of Ontario, California’s SWAT team, was assigned an alphanumeric pager, capable of sending text messages. The city had a contract under which it paid a flat fee for a limited number of text messages and then paid additional for each text message above the agreed upon number.

Quon , fairly regularly exceeded the set number of messages. He was given the option of paying for the excess messages, which he accepted. But the city and the police department started an investigation to determine whether the standard number of messages was sufficient. They picked two months and viewed all of his messages, excluding those that he wrote while he was off duty. They found numerous non work related messages, some of which were of a sexual content. (Whether these were to his soon to be ex-wife or to his girl friend, I do not know. Both joined in the suit.)

He sued, claiming violations of the Fourth Amendment’s protection from illegal searches and Federal law.

Some expected the Supreme Court to break new ground and rule on the interrelationship between the new technology and the Fourth Amendment. But the court was not ready to rule on whether or not there is an expectation of privacy in text messages. Instead if answered the question based on traditional Fourth Amendment concepts. In this case prior to being given the pager Quon was familiar with the city’s policy that their was no expectation of privacy in text messages. While reading someone’s text messages is certainly a search, the Fourth Amendment does not outlaw all searches. It only forbids unreasonable searches and the Supreme Court held that a business search conducted to finds ways to make the business more efficient is not unreasonable. The search by the Ontario Police Department was conducted in order to find ways to make its use of text messages more efficient. The search had a reasonable work related purpose and it was limited in scope. Therefore it did not violate the Fourth Amendment.

Jose Angel Carachuri-Rosendo, a lawful permanent resident, was convicted of two drug related misdemeanors in Texas, First he was convicted of possession of less than two ounces of marijuana and then he plead guilty to possession of one anti-anxiety pill without a prescription.

Normally conviction of a misdemeanor does not result in deportation. But under Federal law and under Texas law a second possessory conviction can be charged as a felony. Narcotics related felonies are considered aggravated felonies and are subject to deportation. Furthermore those convicted of aggravated felonies cannot request discretionary cancellation of removal which allows a judge to determine whether an individual should stay in this country despite he/she being deportable.

The district attorney in Texas had the option of charging Carachuri-Rosendo as a recidivist with a felony. But they did not. None the less, the Federal government moved for deportation because under Federal law he could have been charged as a felon and be deported.

In 2006 the Supreme Court ruled in Lopez v. Gonzales that only those narcotics related crimes that are chargeable under Federal law as felonies subject a person to deportation. In other words, if a person is convicted of a felony in state court but under Federal law it is a misdemeanor the person cannot be deported. For example, if possession of a drug is a felony in some states but can only be charged as a misdemeanor in Federal Court the person cannot be deported.

The Court of Appeal therefore decided that since it could have been a felony if if it had been charged in Federal Court, it should be treated as an aggravated felony. But the Supreme Court found that since he had not been convicted of a felony it was not an aggravated felony. While Carachuri-Rosendo is deportable he is subject to cancellation of removal and the District Court must use its discretion on whether or not he should be deported.

The Supreme Court Monday decided that the Federal District Courts did not lose jurisdiction to set restitution ninety days after sentencing despite a ninety day deadline in the Mandatory Victims Restitution Act.

The Mandatory Victims Restitution Act provides that, if the information is available the court shall set the amount of restitution at sentencing. If ten days before sentencing their is insufficient information to set the amount of restitution the court shall set a date within ninety days after sentencing for the setting of of restitution. It makes provision for increasing the amount of restitution if the victim later discovers further losses.

In the case of Brian Russell Dolan who was convicted of assault with serious bodily injury the court did not have sufficient information at sentencing to set restitution but it did recognize the need to set an amount. Prior to the conclusion of the 90 day period the probation department provided a proposed amount of restitution and the court set a hearing date, without explanation or objection, for a couple of months after the ninety day period ended.

The Supreme Court ruled that the District Court continues to have jurisdiction after the ninety day period ends. It based its holding on six points. First, the statute does not set a specific consequence for violating the ninety day rule. Second, the statute places considerable emphasis on the need for restitution. Third, the drafters of the statute placed more importance on the complete payment of restitution than on the need for finality in sentencing. Fourth, to make the ninety day limit jurisdictional would injure victims who have no control over the dates. Fifth, the Supreme Court has found that other statutes, while setting dates do not remove the power of the courts to act after similar deadlines. Finally, the defendant, at least in this case could have requested an earlier hearing.

The dissent, by Chief Justice Roberts claims that the court does not have the power to alter the clear words of the statute. But requiring strict adherence to the statute would put the court in the strange position of not being able to set restitution after the ninety day period but still being able to assess restitution for damages found by the victim, but unknown at the time of sentencing. Dolan claimed that he would be seriously injured by the failure to follow the language of the statute. For example that might extend indefinitely the period before he could file his appeal. But the court indicated that a case could be final and the appeal could be filed before the setting of restitution.

Albert Holland was convicted of murder in Florida and sentenced to death. He appealed his conviction to the U. S. Supreme Court which denied cert on October 1, 2001, ending direct review and starting a one year period, mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA) within which he may file a Federal habeas. Post conviction counsel, Bradley Collins, was appointed on November 7, 2001.

Twelve days before the year was up Collins filed post conviction motions in State Court tolling the AEDPA deadline. The Florida Supreme Court denied the state motions which became final on December 1, 2005.

During this period Holland wrote numerous unanswered letters to Collins to check on the status of his motions and to remind him to file to file the motions timely. When he did not get answers the wrote to the court and to the state bar asking for information and the replacement of Collins.

Collins did write him one letters and incorrectly told Holland that the deadline passed prior to Collins’ appointment. Three months after the AEDPA deadline passed Collins sent Holland a draft of a writ. After the deadline but prior to the mailing of the draft, Holland filed his own writ which was opposed by the Attorney General on the basis that while he had counsel only Collins could file a writ.

Collins was allowed to resign from the case, new counsel was appointed and the issue of equitable tolling of the statute was briefed to determine whether the late brief would be considered. Both the District Court and the Eleventh Circuit Court of Appeal held that while equitable tolling was allowed Holland did not meet the criteria for equitable tolling.

The Eleventh Circuit held:

that equitable tolling could not be applied in a case, like Holland’s, that involves no more than ‘pure professional negligence’ on the part of a petitioner’s attorney because such behavior can never constitute an ‘extraordinary circumstance.’ . ., .

We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care—in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part—can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling.

The Supreme Court remanded the case to the Eleventh Circuit finding that its test was too strict for a determination whether an equitable tolling of the statute was appropriate. In this case it ruled that “an attorney’s failure to satisfy professional standards of care” was sufficient and it remanded the case to the Eleventh Circuit for reconsideration.

While this is a step in the right direction, the real problem is with the AEDPA. Particularly in capital habeas where just about always counsel is appointed and not retained. The defendant does not get to pick his/her attorney. Yet we allow the failure of counsel to timely file papers (and the deadlines are often obscure and change over time) to result in a defendant losing the right to file the Great Writ and challenge his/her death penalty.

German Ordino-Ortega was sentenced to 60 months in the Federal prison for being unlawfully present in the united States following deportation. The sentence was based on a base offense level of eight and an 16-level enhancement for having a prior conviction for a crime of violence.

However, the Fifth Circuit Court of Appeals ruled that a conviction for injury to a child under the Texas Penal Code did not qualify as a crime of violence. A crime of violence, according to the comment to Sentencing Guideline Section 2L1.2 is one that either is on “a list of enumerated crimes or ‘any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.’”

But under Texas law injury to a child can be committed without the use, attempted use, or threatened use of physical force. For example it can be committed by an act of omission or by placing poison in a child’s food. Neither of these would qualify as an act of violence under the Guidelines. Therefore an act of violence is not an element of the offense and cannot be used to aggravate the sentence.

A jury of eight women and four men was selected in the Los Angeles murder trial of former BART police officer Johannes Mehserle for the New Years Day 2009 Oakland murder of Oscar Grant. The trial was moved away from Oakland where racial tensions are high over the shooting by the white BART police officer of the African American youth. The jury includes seven whites, four Hispanics and one East Indian.

The shooting which was caught on a number of cell phone cameras gained nationwide attentions after the videos were distributed through the internet and television.

It is outrageous that no African Americans are on the jury. Los Angeles was chosen, in part, for the trial because, like Oakland, it has a high percentage of African Americans. Even if the jury is fair it gives the appearance of a set up. Remember the trial in the Rodney King case where the trial was moved to a nearly all white suburb of Los Angeles. Whether it is true or not it makes it look like the prosecution is in collusion with the defense to throw the trial.