Category: Constitutional Law

Federal court embraces as-applied Second Amendment limit on federal felon-in-possession prohibition

A federal district court in Philadelphia has issued the first decision to invalidate the federal felon-in-possession statute on constitutional grounds. The notable as-applied Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014).  Perhaps significantly, Binderup is a civil rights suit brought by an individual seeking relief from a minor conviction in his distant past, not one in which a defendant is seeking to avoid prosecution a federal criminal on Second Amendment grounds.  Here is an excerpt from the opinion:

As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011).

The Binderup decision is here.  Gene Volokh’s comments on the decision from the Volokh Conspiracy are here.

Alan Gura, who represented Mr. Binderup and argued both D.C. v. Heller and McDonald v. City of Chicago in the Supreme Court, promises more Second Amendment fireworks involving people with dated non-violent convictions.  Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms after conviction, should keep an eye on this space.

Split NJ Supreme Court holds sex offender GPS tracking is punishment subject to ex post facto limits

As reported in this local article, headlined “Some sex offenders can’t be forced to wear GPS monitors, N.J. Supreme Court rules,” the top state court in the Garden State issued a significant constitutional ruling holding that New Jersey cannot force sex offenders to wear GPS tracking devises if they were convicted before the monitoring program was signed into law seven years ago. The court voted 4-3 to uphold an appellate panel’s decision that said it was unconstitutional for the state Parole Board to require George C. Riley to wear the ankle monitor when he was released from prison in 2009 after serving 23 years for attempted sexual assault of a minor.

Justice Barry Albin wrote that Riley, 81, of Eatontown, should not be subject to the 2007 law because it constitutes an additional punishment that was not included in the sentence he already served. The Court agreed with the lower court that the “retroactive application” of the GPS program to Riley violates the ex post facto clauses in the U.S. and state Constitutions, which safeguard against imposing “additional punishment to an already completed crime.” The court also rejected the state’s argument that the GPS monitor is not punitive but “only civil and regulatory.”

“Parole is a form of punishment under the Constitution,” Albin wrote for the high court. “SOMA is essentially parole supervision for life by another name.” He added that “the disabilities and restraints placed on Riley through twenty -four-hour GPS monitoring enabled by a tracking device fastened to his ankle could hardly be called ‘minor and indirect.’”

The full ruling in Riley v. New Jersey State Parole Board, No. A-94-11 (NJ Sept. 22, 2014) is available at this link.

–Read full article at Sentencing Law and Policy.

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