Patterico's Pontifications


SCOTUS: Prosecutor must Prove Immigrant’s Knowledge in Gun Prosecution

Filed under: Court Decisions,Law — DRJ @ 4:09 pm

[Headline from DRJ]

From The Hill — Supreme Court sides with immigrant in gun possession case:

The Supreme Court on Friday found that prosecutors have to prove that an individual alleged to have illegally possessed a firearm must know that they are part of a group banned from having the gun in the first place.

In a 7-2 ruling, the justices sided with United Arab Emirates citizen Hamid Rehaif, who shot firearms at a gun range after he was dismissed from college over bad grades and told that his immigration status under his student visa would be terminated.

Justice Stephen Breyer wrote in the majority opinion that prosecutors do need to prove that Rehaif knew of his immigration status, and that he would therefore be banned from possessing a gun.

Justice Alito dissented:

Alito was highly critical of the ruling in the dissenting opinion, noting that the federal gun statute at hand applies to individuals like convicted felons, stalkers and those who commit acts of domestic violence.

“Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms” for convictions under that law, he argued.

Alito also took issue with the argument that Rehaif may not have known he was in the country illegally, and criticized the court for agreeing to hear the case in the first place. And he warned that the ruling could have ramifications for future cases on immigration. “Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his continued presence in the country was illegal,” Alito wrote.

Alito has the better argument.



Headlines: Support for the Wall

Filed under: Court Decisions,Immigration — DRJ @ 5:30 pm

[Headlines from DRJ]

The HillJudge rejects House Democrats’ attempt to block Trump use of military funds for border wall:

A federal judge has ruled against congressional Democrats who sought to temporarily stop the president from using military funds for a border wall.

Judge Trevor McFadden, a Trump appointee, handed the president a needed victory after the White House suffered several losses in legal battles with Democrats in recent days.

McFadden ruled that House Democrats cannot go to court to block Trump from using military funds to build the border wall “because the Constitution grants the House no standing to litigate these claims.”

The judge held that the House might have standing to sue in some cases but it did not show it had standing here.

And The Hill: Texas 7-year-old raises $22,000 for construction of Trump’s border wall:

A 7-year-old from Texas who’s raised $22,000 for the construction of President Trump’s U.S.-Mexico border wall attended a ribbon-cutting ceremony for a section of the structure on private land.

Benton Stevens, whose hot chocolate and lemonade sales have helped fund the project, joined members of crowdfunding group “We Build The Wall” in Sunland Park, N.M., for the ceremony, KFOX reports.

That is a lot of money for a child’s stand, even in Texas.



Oral Argument Today on Fifth Circuit Case Challenging Obama’s Most Recent Amnesty

Filed under: Court Decisions,General,Immigration — Patterico @ 7:29 am

There is an important oral argument taking place today in the Fifth Circuit regarding Obama’s amnesty.

First, a paragraph of background: there have been two amnesty-related cases of note percolating through the Fifth Circuit, and it’s important to keep them straight. One case has been around a while: the challenge to Obama’s action on the “Dreamers” — his “deferred action for childhood arrivals” or DACA. In the second case, a judge who has been very critical of Obama’s amnesty issued an injunction barring implementation of Obama’s recent and far more sweeping executive amnesty.

The DACA case has been decided; more on that below. Oral argument will be heard today on the injunction regarding the sweeping amnesty. Last month, Paul Mirengoff at Power Line gave us a summary and preview:

The United States Court of Appeals for the Fifth Circuit has issued an order that sets oral argument in Texas v. United States for April 17. This is the case in which Texas and other states challenge President Obama’s executive amnesty.

In district court proceedings, Judge Hanen temporarily enjoined the government from enforcing Obama’s program to grant lawful status to millions of illegal immigrants. The government has moved for a stay of that order, pending appeal.

The oral argument on April 17, for which two hours have been allocated, will pertain only to the government’s motion for a stay. As for the merits of the injunction, the Fifth Circuit’s order sets a briefing schedule and permits the filing of briefs by a number of amici, including Senators Cruz and Cornyn.

Mirengoff reports that the government is arguing that Obama’s amnesty is somehow “essential to national security” because it helps ICE agents “quickly distinguish dangerous immigrants from those who pose no threat.” Expect this to come up in the oral argument.

Oral arguments can be very revealing, as the resolution of the DACA/Dreamers case shows. Recall my prediction. Last month, after listening to the audio of the oral argument in that case, I told you:

I’m the guy who told you that the panel was going to rule against Obama in Halbig, based on listening to the oral argument. Unfortunately, I have to be the guy to tell you that — unless I am interpreting the argument incorrectly — the Fifth Circuit is probably going to rule for Obama here.

And that is exactly what happened, 10 days ago. Politico reported (Google cache link, no links for bullies):

A federal appeals court’s ruling Tuesday upholding the dismissal of a lawsuit over President Barack Obama’s first major executive action to aid illegal immigrants could help the Obama administration fight a more significant suit that has resulted in Obama’s second wave of immigration orders being halted nationwide.

A three-judge panel of the 5th Circuit U.S. Court of Appeals unanimously ruled that several immigration agents and the state of Mississippi lacked legal standing to sue over Obama’s 2012 Deferred Action for Childhood Arrivals program because evidence that the agents or the state would be harmed by the effort was too speculative.

“Neither Mississippi nor the Agents have alleged a sufficiently concrete and particularized injury that would give Plaintiffs standing to challenge DACA,” Judge W. Eugene Davis wrote in an opinion joined by Judges Carolyn King and Priscilla Owen.

Always trust content from Patterico.

We’ll see what today’s argument holds in store. I admit to a lack of optimism, but that is characteristic of my personality. I’ll report more on it when I get a chance to hear the audio.

UPDATE: I should note that on the earlier case, I thought they might grant standing but deny on the merits — and they tossed it on standing. Details.

The audio of today’s oral argument is here. I have heard about half an hour or so. More later.


Today in Failed Criticism from the Left

Filed under: Abortion,Court Decisions,General — JVW @ 10:56 am

[guest post by JVW]

How many of you have seen this recent image bouncing around the Internet? It was apparently created by the deep thinkers at NARAL Pro-Choice America and has been promoted by the DailyKos and Huffington Post among others.


The idea, naturally, is to call attention to the idea that Christian groups who object to covering contraception and/or abortifacients are somehow being hypocritical if they have no objection to also covering Viagra or other erectile dysfunction treatment medication.

I’m going to pull back the curtain here and divulge a hitherto super-secret and never disclosed principle of Catholic theology [did the sarcasm come through enough there?] which explains why covering Viagra is acceptable whereas covering birth control pills is not, and I think this principle is also adopted by other religious groups who follow the same standard:

Viagra is used to facilitate a process which can lead to conception.

Birth control pills are used to prevent conception.

It really is as basic as that, but somehow this simple concept is way beyond the comprehension of the gender politics warriors whose voices dominate public discourse in these matters.



Another Example of How Lawyers Ignoring the Plain Meaning of Language Go Astray

Filed under: Court Decisions,Crime,General — Patterico @ 12:30 am

Here’s an interesting little legal issue — one that is apparently easier to resolve properly if you have not had legal training.

California Penal Code section 288.7(a) reads as follows:

Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.

That simple language in bold is apparently too difficult for some judges to understand.

Our hypothetical defendant is 19 years old. The evidence shows that he met the victim at her 10th birthday party. One week later, he had sex with her. Is he subject to the penalties provided by this law?

As a common sense person, dear reader, you are saying: of course he is! The victim was 10 when he had sex with her. She just had her 10th birthday! And the penalties apply if the victim is 10 or younger. What’s the problem?

It turns out that at least one California court saw a problem. That court said “10 years of age or younger” means “exactly 10 years old, not one day more” . . . or younger. In other words, the day after the victim’s birthday, she is no longer “10 years of age of younger” . . . according to these legal geniuses.

That conclusion is, of course, absurd. If you asked this girl how old she is, she would say: “ten.” If you asked her mother how old she is, she would say: “ten.” If you asked all her friends and relatives how old she is, they would say: “ten.” If the statute says the victim must be “10 years of age OR younger” and she is “10 years of age,” then the statute applies.

I don’t care what the legislative “intent” was. I don’t care about the “rule of lenity” or any other mumbo jumbo. Not in this case. Because here the language is clear. The girl is ten. The statute applies. Next case!

This is what I mean when I stress that “legislative intent” should not matter to the interpretation of a statute. This court actually bemoaned the fact that there was no legislative history available to help out. The court also noted that several other cases in other jurisdictions had resolved similar issues in the same silly way (as well as several that resolved it properly). The court further noted that, in many cases, “courts have been able to resolve the issue on the basis of an illuminating legislative history.”

Legislative history. Aaaaaargh!

So, let’s say a legislator didn’t like the law, and was pushing to make the victim’s age “11 years or younger” before harsher penalties kicked in — but ended up voting for the statute in a pander to the public. He could simply have a staffer slip something into the legislative record talking about how “10 years or age or younger” really excludes anyone who is 10 years and a day. And one suspects certain idiot judges would pay attention to that kind of dishonest crap.

Not me. To me, the words mean what they mean. Trying to divine some “legislative intent” from clues in speeches and notes from committee meetings is a fool’s errand. The plain language should control.

Luckily, sanity may win out. The California Supreme Court has granted review and the case may not be cited. At least one other court has come out with a sensible ruling going the proper way.

But when you throw common sense out the window, the law can take the most obvious, plain meanings of words, and twist them into something that would make the man on the street furrow his brow and say “What now??”

It’s not always lawyers who do this, mind you. But they seem to be mighty good at it.


Supreme Court Scolds 9th Circuit

Filed under: Constitutional Law,Court Decisions,Judiciary,Law — Jack Dunphy @ 8:27 pm

[Guest post by Jack Dunphy]

The Washington Post reports today on a series of recent Supreme Court opinions which overturned decisions by the 9th Circuit. Post writer Robert Barnes informs us:

Sometimes the Supreme Court simply decides cases and sometimes it seems to have something bigger in mind. In the past two weeks, it has been in scold mode, and its target has been the U.S. Court of Appeals for the 9th Circuit.

Barnes goes on to offer a characterization of Judge Stephen Reinhardt that will come as no surprise to regular readers of this blog. Reinhardt, he writes, is “widely considered to be the nation’s most liberal appeals court judge.”

Indeed. Read the whole thing.

–Jack Dunphy


Judge Refuses to Dismiss Two Counts in Obamacare Suit

Filed under: Civil Liberties,Constitutional Law,Court Decisions,Obama — Aaron Worthing @ 11:54 am

[Guest post by Aaron Worthing]

Of course another suit in Michigan resulted in this law being upheld, so we are getting a split in the circuits.  I will say honestly I have not even read the whole decision yet, but I will and if I have any special insight, I will share it.  For now, I just want to make it easier for you to find the decision, if you are inclined to read it.

[Posted and authored by Aaron Worthing.]


Needed: An Initiative to Get the Death Penalty Working Again

Filed under: Court Decisions,Crime,General — Patterico @ 7:24 am

As I noted last night, a Clinton-appointed judge named Jeremy Fogel has granted a stay of execution in the case of a man convicted of raping and killing a 15-year-old child in 1980.  There is no denying he is guilty.  Yet his execution will be held up until at least next year so that the judge can “conduct an orderly review” of a new execution protocol that the judge admits has not been shown to be deficient — and that the judge admits is superior in several demonstrable ways to a Kentucky protocol found constitutional by the U.S. Supreme Court.

The decision points up the need to have different methods of execution available to a condemned man in California, so that illusory deficiencies in one method will not hold up the execution of a clearly guilty man who has committed a monstrous crime.

As I see it, realistic possibilities include:

  • Firing squad.  To my knowledge, the firing squad has never been held unconstitutional anywhere.  Several bullets to the head should produce a rapid and certain death.
  • Gas chamber retrofitted with carbon monoxide.  As far as I know, California’s gas chamber, which formerly used cyanide, is still around and functioning.  Death by cyanide was improbably ruled unconstitutional by Carter appointee Judge Marilyn Hall Patel in the 1990s.  Her decision was affirmed by the Ninth Circus in a decision written by Carter appointee Harry Pregerson, and not appealed. But there is absolutely no reason we can’t retofit the chamber to use a non-painful gas such as carbon monoxide.
  • Overdose of barbiturates.  Even our friend the liberal judge Fogel claims that this would be constitutional. Of course, there are issues: there is currently a nationwide shortage of the drug we used to sedate prisoners, and it could be discontinued almost entirely. Furthermore, the method found hunky-dory today will be declared horribly cruel tomorrow. Best to have several alternatives on the table.

This will have to be done by initiative.  Our Democrat legislature will not vote to authorize new methods of capital punishment.  Nor would any any such law be signed by Jerry Brown if were to be elected Governor.  (I will have more to say about the conduct of the Attorney General in this case in a future post.  Suffice it to say that he has not defended capital punishment in California as he claims he has.)

What we need is someone to bankroll an initiative authorizing these alternatives. Commenter Dana notes that a poll conducted this summer (.pdf) found that 7 in 10 Californians continue to support capital punishment. Citizens don’t want to see it used in every case, but they want it available for the worst of the worst. Over 700 such people currently sit on Death Row. If we don’t fix the situation they will all die of old age.

Albert Greenwood Brown raped 15-year-old Susan Jordan and strangled her to death with one of her shoelaces. The courts say he can’t suffer too much pain when he dies. That’s outrageous enough — but letting him live is more ridiculous. Let’s do what it takes to dispatch this fellow to the fate he deserves.


Arizona Ruling (At Urging of Obama Administration) Undermines “Deport the Criminals First”

Filed under: Court Decisions,Deport the Criminals First,Immigration — Patterico @ 7:04 am

On this blog I have had a recurring series called “Deport the Criminals First.” The idea is that, unless you are in favor of a complete open border policy, you would want to see the most undesirable illegal immigrants deported first: criminals, starting with violent criminals. I have therefore advocated checking the immigration status of every person arrested for a crime, especially violent crimes, and ensuring that we have sufficient resources to identify and deport violent criminals once they have served their sentences.

I see this as a completely noncontroversial and bipartisan proposal. I have repeatedly highlighted the tragic and often fatal consequences that visit victims when law enforcement fails to take this very basic step.

Professor William Jacobsen notes that, in the most startling portion of yesterday’s outrageous decision blocking implementation of most of Arizona’s immigration law, law enforcement officials are now apparently prevented from running such basic, common-sense immigration checks:

The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.

. . . . [S]tates already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.

The Judge’s reasoning, particularly that the status check provision violated the 4th Amendment even as to persons already under arrest, applies just as easily to these other status checks.

With a federal government which refuses to take action at the border until there is a deal on “comprehensive” immigration reform, meaning rewarding lawbreakers with a path to citizenship, this decision will [e]nsure a sense of anarchy. The law breakers have been emboldened today, for sure.

Understand clearly what is happening, according to Professor Jacobsen. Officials who arrest illegal immigrants for crimes, even violent ones, are apparently blocked from checking the immigration status of those suspects, under the reasoning of a decision that invalidates as unconstitutional a policy requiring such checks.

I have not read the ruling myself to verify this, but if this is true, it is stunning.

This can’t get to the Supreme Court fast enough. Let’s hope it gets there before Obama packs the court with more liberals who would turn a blind eye to common sense.


More on That Ninth Circuit Decision Granting Voting Rights to Felons in Washington State

Filed under: Court Decisions,Crime,General,Race — Patterico @ 10:54 pm

DRJ reported the basics here, quoting a story that said:

Attorneys for six Washington state prisoners, Circuit Court Judge A. Wallace Tashima wrote, “have demonstrated that police practices, searches, arrests, detention practices, and plea bargaining practices lead to a greater burden on minorities that cannot be explained in race-neutral ways.”

Joined by Judge Stephen Reinhardt in the majority opinion, Tashima found no “race neutral” explanation for the higher incarceration rates and reversed a U.S. District Court decision in favor of the felons.”

There’s a lot to say about this decision; probably more than can be said in a single blog post.

My first reaction is one that I have expressed many times before: how in the hell does Stephen Reinhardt manage to get onto the panel on every hot-button liberal issue the Ninth Circuit ever takes up?

To me, the biggest concern flowing from this decision is the precedent that federal courts can now make sweeping declarations about the discriminatory nature of the criminal justice system based on dubious studies by sociology professors. (More about that in the extended entry below.) The implications are potentially staggering and go far beyond felons’ right to vote. If federal courts can declare the entire system of criminal justice in a state (or the country!) to be racially discriminatory, you could see an invalidation of Three Strikes laws or any other recidivism statute. You could see a sweeping invalidation of laws prohibiting felons the right to possess firearms. And that could be just the tip of the iceberg.

Commenter carlitos points out another potentially disturbing impact of the decision: its potential effect on rural districts with big prisons. Given that the decision explicitly extends to currently incarcerated inmates, you’re potentially looking not just at a huge bump in the number of Democratic voters as a whole, but also very concentrated bumps in districts that otherwise would likely be reliably Republican.

What bothers me more than anything else is the way that the judges rely on dubious methodology that they don’t even seem to understand.

The rest of this post cites some of the source material and gets into a little more detail concerning that methodology. For those of you with less interest in the topic or shorter attention spans, I’m tucking this part in the extended entry.


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