Category: Civil practice

Appeals court finds federal firearms law constitutionally flawed

In a major victory for Second Amendment advocates, the Sixth Circuit court of appeals has sustained an as-applied constitutional challenge to the federal firearms dispossession law, 18 U.S.C. § 922(g).  While the particular provision of that law at issue in Tyler v. Hillsdale County Sheriffs Department is § 922(g)(4), the subsection prohibiting firearms possession by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution,” the court’s broad holding and analytical approach will be of considerable interest to those watching developments under the felon-in-possession subsection of the law, § 922(g)(1). Clifford Charles Tyler, a 73-year-old resident Hillsdale County, Michigan, had been involuntarily committed for less than one month in 1986, shortly after an emotionally devastating divorce, based on a risk of suicide that concerned his children.  Since that time he had worked steadily and had had no problems with law enforcement or mental health issues.  Tyler sought a declaratory judgment against enforcement of the federal firearms law based on this brief dated commitment.  He pointed out that in Congress had authorized states to provide relief from this provision as an inducement to cooperate with federal authorities, but that Michigan was one of about half the states that had chosen not to do so.  Because Congress has defunded the federal relief provision, 18 U.S.C. § 925(c), Tyler had no forum in which to request a waiver of the “committed to a mental institution” provision of the law as applied to him, and this he claimed resulted in a violation of his Second Amendment rights.  The court of appeals agreed. In a lengthy opinion surveying the history of the prohibition on gun possession by the mentally ill, as well as Second Amendment caselaw under § 922(g) since D.C. v. Heller, the court determined that 1) Tyler’s possession was not categorically unprotected under § 922(g); and 2) the law as applied to him could not be justified under the applicable strict scrutiny test.  The court relied upon Congress’ evident intent that relief should be available from §(g)(4)’s prohibition as confirming that the “committed to a mental institution” provision of §(g)(4) was not “narrowly tailored” to achieve the government’s valid purpose in prohibiting gun possession by the mentally ill: Under this scheme, whether Tyler may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress’s inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual’s ability to exercise a “fundamental righ[t] necessary to our system of ordered liberty,” McDonald, 561 U.S. at 778, cannot turn on such a distinction. Thus, § 922(g)(4) lacks narrow tailoring as the law is applied to Tyler. The following review of the circuits’ post-Heller jurisprudence confirms this. We hold that the complaint, as alleged, states a violation of the Second Amendment. The Tyler court’s analytical approach would seem relevant in cases challenging the application of the conviction-based prohibition of § (g)(1), which like (g)(4) gives effect to state relief provisions.  See 18 USC § 921(a)(20).  Individuals convicted of non-violent crimes who can demonstrate that they are “no more dangerous than a typical law-abiding citizen,” and who have no reasonable possibility of relief under state law, may be able to demonstrate the same Second Amendment over-breadth that won the day for Mr. Tyler. Indeed, one federal court has already upheld such a claim, as described in this earlier post.  More such challenges are wending their way through the courts, and Alan Gura who is spearheading this litigation has promised us a report early in the New Year. Read more

Jerry Brown takes back a pardon . . . really?

Jerry Brown reportedly regretted one of his 105 Christmas Eve pardons, after learning from an LA Times article that the recipient had recently been disciplined by federal financial regulators.  He therefore announced that he was rescinding his grant, claiming that the pardon was not yet final because the Secretary of State had not signed the document evidencing it. This is not the first time that a governor or president has had second thoughts about a pardon, but it is unusual for a chief executive to attempt to undo one that has been made public.  Governor Brown’s attempt to retract the pardon may or may not be effective, but it certainly reflects unfortunate disarray in the administration of the pardon power in California for which other deserving pardon candidates may end up paying. Glen Williams Carnes was pardoned on December 24 for a 1989 drug-related offense committed while he was a teenager, for which he spent three years on probation.  In the pardon document, Brown stated the Carnes had received an order from the Orange County Superior Court “evidencing … he has lived an honest and upright life, exhibited good moral character and conducted himself as a law-abiding citizen.” This judicial order, styled a “Certificate of Rehabilitation,” is the first step in the California pardon process, after which applications are submitted by the governor’s office for a second vetting by the Board of Parole Hearings. Later that same day, the Times reported that [F]ederal records show Carnes was disciplined by investment regulators in May 2013. He signed a consent settlement with the Financial Industry Regulatory Authority that states he agreed to be barred from financial investment. The document alleged that he hid an outside business deal and provided investigators with “false and misleading statements that minimized and mischaracterized his involvement.” Carnes did not admit guilt. Securities and Exchange Commission records show the business deal that led to the sanction became what is now Carnes’ company: Global Vision Holdings, a publicly traded corporate umbrella of which Carnes is listed as CEO, chairman of the board and chief financial officer. Currently, Global Vision owns The Place Media, which publishes local magazines placed in hotels, Mamma’s Best, a line of organic food products, and a financial consulting firm. However, SEC records show Global Vision’s last financial report was made in late 2013. In April, it informed the SEC it could not complete its year-end 2013 filing in time “due to recent turnover in its accounting department.” Upon learning from the newspapers of the FINRA sanctions, Governor Brown moved that same afternoon to withdraw the pardon, stating that he had relied to his detriment on the court’s order of rehabilitation, and that in any case the pardon had not yet become final: “This information was not disclosed by the applicant,” Brown’s spokesman, Evan Westrup, said in a written response to The Times. “Without the certificate of rehabilitation, this individual would not have been considered for a pardon. This particular pardon has not yet been attested by the Secretary of State and it has subsequently been withdrawn.” For his part, the disappointed Mr. Carnes told the Times that he planned to contact Brown’s office “first thing on Friday morning as tomorrow is Christmas, to refute your allegations.” The Associated Press reported that Carnes said he was unaware he needed to report the regulatory settlement on his clemency application. Stay tuned for further details in this most recent pardon soap.  In the meantime, we have a couple of comments on the episode.  First of all, it is not at all clear that the Governor’s effort to retract a pardon he had already announced, on grounds that a ministerial formality had not yet been performed, will be held effective if challenged.  The Supreme Court of Michigan recently invalidated a similar attempted retraction by Governor Granholm, there of a commutation she later regretted after protests by his victim’s family.  See Makowski v. Governor, 495 Mich. 465; 852 N.W.2d 61 (June 3, 2014).  See also Marbury v. Madison, 5 U.S. 137 (1803).  We don’t know if Mr. Carnes plans to take his case to court — though the possibility of further embarrassment may discourage him.  (This is apparently why Isaac Toussie didn’t contest President George W. Bush’s retraction of his pardon under similar circumstances — a pardon that was also granted apparently without adequate staffing.) The Carnes episode also reflects poorly on the present state of the California pardon process, and on its reliability in service to the Governor.   Carnes reportedly told the Times that “he went through an extensive background check that took over a year making him eligible for his gubernatorial pardon.”   However, that background check (presumably by the BPH and the governor’s staff) evidently didn’t dig very deep to reassure the Governor that Carnes was a suitable recipient of his public mercy:  A simple Google search by CCRC staff finds Carnes listed on the website of the CFA Institute as an individual “currently serving public disciplinary sanctions for violations of the CFA Institute Code of Ethics and Standards of Professional Conduct or who have resigned their memberships while under investigation for industry-related misconduct.” Nor was the court’s certification of Carnes’ rehabilitation a very effective filter in this case. Carnes was reportedly granted his COR in August 2013, several months after the FINRA sanctions were imposed.  It is unclear whether the court knew of the sanctions when it granted the COR, though they would certainly seem to have reflected poorly on Mr. Carnes’ rehabilitation in that context as well. Finally, while the retraction is unfortunate for Mr. Carnes, it is even more unfortunate for others who are seeking a pardon from Governor Brown, since it is inevitable that an episode like this may dampen his general enthusiasm for pardoning.  This is why it is so very important that those staffing pardons for an elected official do a thorough investigation and be very sure there is nothing about a case that might cause embarrassment.  Neither the BPH nor the court appears not to have done a very thorough job in this case, if our own crude Google-limited investigative efforts are any guide.  And now others awaiting the Governor’s favor may suffer for this poor staffing. We will have more to say in this space about the administration of the pardon power in California.  We believe that its basic framework, notably its reliance on a prior judicial finding of rehabilitation, could be adapted into a comprehensive functional relief system second to none in the country. Read more

Criminal records and the Obama immigration initiative

The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges. The advisory explains DAPA thus: DAPA offers benefits similar to the Deferred Action for Childhood Arrivals (DACA) program that has existed since 2012. It provides “deferred action,” which means that, even though the individual is undocumented and subject to deportation, the government agrees to “defer” any actions to remove them. While deferred action does not provide a pathway to lawful permanent resident status (a green card) or citizenship, it will allow recipients to remain in the U.S. and obtain an employment authorization document that will entitle them to work here legally. The DAPA crimes bars are similar to those under the DACA program, in making ineligible for relief anyone convicted of a felony, a “significant” misdemeanor, or three misdemeanors. But what constitutes a disqualifying felony and misdemeanor differs under the two programs. Also it is clear that juvenile dispositions and expunged convictions are not an absolute bar to DACA, but this has not yet been clarified for DAPA. (Other than these special deferred action programs, expungement has little effect in immigration proceedings.) A DAPA-disqualifying “aggravated felony” may include some misdemeanors, if a sentence of a year or more was imposed (including suspended sentences), or if it involves sexual abuse or fraud exceeding $10,000.  “Significant” misdemeanors include domestic violence, unlawful possession of a firearm, drug sales, burglary, DUI, or any case where the sentence imposed is 90 days or more (excluding suspended sentences).  Convictions or conduct relating to a “criminal street gang” as defined in 18 U.S.C. § 521(a) are also a bar to DAPA. A state crime of which immigration status is an essential element will not be disqualifying, but a federal immigration offense (such as illegal re-entry) is likely to be. The advisory suggests defense strategies to avoid a disqualifying disposition, including negotiating for pre-plea diversion or deferred sentencing, for consecutive sentences of less than 90 days each,or for a more severe non-jail sentence in exchange for a reduced charge. Counsel are advised to explore reducing a felony to a misdemeanor, where that is permitted under state law, as in California and Indiana. Multiple misdemeanor convictions arising from the same incident only count as one conviction, for purposes of the bar based on three misdemeanor convictions. The advisory contains links to a variety of other practice resources for defense attorneys representing non-citizens, including an advisory for clients potentially eligible for DACA. Read more

Clean slate remedies help overcome collateral consequences

Eliza Hersh, director of the Clean Slate Clinic at the East Bay Community Law Center and one of CCRC’s contributing authors, has co-authored a most persuasive op ed in the LA Times, which we are pleased to reprint here in full.   Should a shoplifting conviction be an indelible scarlet letter? Not in California What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance? In November, California voters took a clear stand on these issues when they passed Proposition 47 and reclassified eight nonviolent felonies to misdemeanors for people without prior serious convictions. Proposition 47 allows for the resentencing of many who have been convicted of such crimes, reducing the amount of time they serve, lowering state and county incarceration costs and chipping away at decades of overly punitive criminal-justice policies. But this common sense reform alone won’t necessarily change the lifelong punishment experienced by many people with a criminal record. Today, a criminal record — even for a low-level misdemeanor or infraction — acts like an indelible scarlet letter. Until relatively recently, employers, landlords and others rarely requested criminal records, which could be accessed only by sifting through physical files in a local courthouse. With the post-9/11 push for more background checks, the advent of online databases and the steep increase in the number of people with convictions, criminal records have become a serious barrier to employment, housing, education and other forms of civic participation for millions of Californians. New fair-chance hiring laws help reduce discrimination against people with criminal records by removing conviction history questions from initial job applications and postponing background checks until later in the process. But California has an additional remedy. Laws long on the books allow judges to dismiss old convictions, a recognition that people who have successfully completed their sentences should be free to rejoin society without disabling consequences. The dismissal remedy doesn’t erase the record completely, and it is not available in all cases, but it can restore rights and reduce barriers for many people. People who have successfully completed their sentences should be free to rejoin society without disabling consequences.- These dismissal laws, however, are obscure and complex. The process can require a lot of paperwork and a court appearance, or even multiple appearances in more than one county. As a result, far too many Californians remain saddled with convictions that are otherwise eligible for dismissal. The East Bay Community Law Center, a teaching law office affiliated with UC Berkeley School of Law, tries to address these problems. Since establishing its Clean Slate Clinic a decade ago, the center has helped several thousand people obtain record-clearing remedies with the aim of reducing the collateral consequences of convictions and lowering the risk of recidivism. Under the supervision of attorneys, law students interview the clinic’s clients, draft their declarations, prepare them for court hearings and, if necessary, later represent them in civil and administrative proceedings to redress unlawful discrimination in employment, housing and professional licensing. The process can be long and emotional. People with criminal records are grappling with painful episodes from the past and hopeful aspirations for the future. But the results can be equally rewarding. While Berkeley law students have been serving clean-slate clients, University of California researchers have been studying the results. We already know that clean-slate interventions increase a person’s ability to get a job and provide him or her with a profound sense of relief: No more skeletons in the closet. But the benefits go far beyond that: In surveys, focus groups and in-depth interviews, people who’ve had their records cleared express a sense of accomplishment (increased confidence and self-esteem), a sense of hope (a focus on the future) and a sense of agency (control over their lives). Significantly, the clean-slate process itself — not just the outcome — appears to create a kind of status enhancement ritual, or rite of passage, helping people move from their old life into a new one. Proposition 47 takes an important step toward addressing the consequences of mass incarceration in California. Tens of thousands of people will benefit from it. The Legislative Analyst’s Office estimates that the state and counties will each save hundreds of millions of dollars annually as a result of lower incarceration rates. But rebuilding lives and communities will not flow automatically from the new law. As we take additional measures to reverse the most damaging effects of our tough-on-crime policies, we will need to invest time and resources in clean-slate programs that help people with criminal records go through the challenging process of re-integrating into our families, communities and society. Read more

“Arrests as Regulation”

Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access. Here is the abstract: For some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone — regardless of whether they result in conviction — can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This Article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors who rely on arrests — such as immigration enforcement officials, public housing authorities, employers and licensing authorities, child protective service providers, among others — routinely receive and use arrest information for their own objectives. They do so not because arrests are the best regulatory tools, but because they regard arrests as proxies for information they value, and because arrests are often easy and inexpensive to access.     But when noncriminal justice actors rely on arrests, they set off a complicated and poorly understood web of interactions with the criminal justice system. Regulatory bodies and others that make decisions based on arrests can coordinate and pool resources with prosecutors and police officers, achieving a level of enforcement that neither could achieve alone, or they can make decisions that undermine important aspects of the criminal justice process. This Article maps different regulatory interactions based on arrests, and illustrates the need for greater oversight over how arrests are used and disseminated outside the criminal justice system. Jain shows how immigration officials use arrests to expand the reach of interior enforcement efforts through the efforts of state and local law enforcement, public housing officials rely on arrests to identify existing tenants who are potentially in breach of their lease, and employers and professional licensing authorities use arrest information to monitor off-duty workers.  Some employers suspend or terminate at-will employees based on the arrest. Many employers are automatically notified by law enforcement agencies whenever an employee is arrested.  (In New York this includes home health care workers, security guards, and taxi drivers.)  Because neither the arresting officer nor the jail has a role in initiating the notification, the arrested individual will not be informed of the notification at the time of arrest.  Until 2006, New York City taxi drivers, for example, were automatically suspended for a wide range of arrests, including misdemeanor welfare fraud or forgery.  (The New York taxi litigation, Nnebe v. Daus, is the subject of a recent post.)  As a matter of due process, a licensee may be entitled to a hearing before a license is revoked, but not before an unpaid period during which the license is suspended. Notice of arrests is also frequently mandated in the child welfare and education contexts. Jain  makes the case that use of arrests to grant or deny benefits has a number of negative systemic consequences: In a variety of settings, noncriminal actors rely on arrests as a means of achieving their own regulatory agendas. This use of arrests can serve important societal interests. But it can come at a significant cost. It can magnify the effect of unwise or unjustified policing and arrest decisions. Across a number of settings, arrests are an overbroad and imperfect proxy for the information that noncriminal justice actors value. This fact, combined with inadequate oversight and a lack of transparency in how arrest information is used, can create serious consequences for arrested individuals – ones that far outstrip any penalty imposed by the criminal justice system. Moreover, when actors outside the criminal justice system rely on arrests, one potential effect is to expand the enforcement powers of both actors.  In delegating front-end screening discretion to individual police officers, they magnify the effects of underlying and problematic police practices based on racial profiling.  Noncriminal justice actors may also work against certain criminal law enforcement goals —such as when they deport, evict, or terminate individuals after a demonstrably unlawful arrest. These consequences can undermine the aims of prosecutors and police who seek to encourage witnesses to come forward and report crime. Jain has little faith that the exercise of administrative discretion in civil settings can place appropriate limits on the power of police to tag people in ways that are counterproductive to a healthy social order.  Noncriminal justice actors who rely on arrests are driven by their own organizational priorities, and they take an instrumental view of arrests that is at odds with the principle that an arrest alone is not indicative of guilt. Jain argues that a more reliable way of introducing transparency and procedural fairness in the use of arrest information is through restrictions on sharing and storing of arrest information. Prompt and automatic expungement of arrest records that do not result in charges is one important step, so that they are available going forward only to law enforcement.  She also proposes that a third party (“one that is not committed to either the goals of criminal law enforcement actors or to the interests of the noncriminal actor”) may be in the best position to systemically evaluate considerations such as “whether the underlying arrest information is accurate, whether it provides a meaningful informational proxy, whether it disproportionately affects certain groups, whether the evaluation process is fair and transparent, and whether the use of arrests has undesirable or unintended public policy consequences.”  It is not clear what such a third party might look like, although Massachusetts’ Criminal Offender Records Information (CORI) system performs such a function, at least on paper.  Through CORI, Massachusetts regulates dissemination of criminal history information to non-justice actors, ensuring both accuracy and appropriate restrictions on dissemination. We agree with Jain that it is high time to start talking about “how arrests regulate individuals outside the criminal justice sphere, and to evaluate when and whether it is appropriate to allow an individual police officer’s decision to arrest to do so much work.” Read more