firstamongequalscommentary

[firstamongequalscommentary]

Morin v. Lyver

I’m still easing back into having public-facing opinions about things, but I think I can comfortably go on record as being in favor of gun regulation.  Like, a lot of regulation.  Think more-or-less total bans.  As a legal matter, I think if Heller is going to remain as the controlling interpretation of the Second Amendment, we should just get rid of the Second Amendment.

That said, Heller (with McDonald) not only is the controlling interpretation for now, but it dramatically unsettled the previous consensus that had allowed states to regulate guns pretty strictly.  And it is fascinating—from a rule-of-law and legal-theory perspective—to observe what’s happened in lower courts in Heller’s wake, especially in the courts that are sensibly hesitant to let it become a free-for-all.

Morin v. Lyver is the latest (and a prime) example of the lengths to which some courts will go to preserve some semblance of gun regulation after Heller.  This one involves Massachusetts’s regulatory scheme.  The facts here get a little convoluted, because this is the second time it’s been to the First Circuit, but a lot of the sophistry arises from the relationship between the two cases, so bear with me.

Basically, the plaintiff had previously held a Massachusetts-issued firearms license (Class A, which permitted him to carry a concealed weapon), but in 2004, he was convicted of violating a low-level D.C. firearms statute (basically, he brought his gun to D.C.—not a brilliant idea, pre-Heller—and, on entering the Museum of Natural History, asked someone if he could check the gun, lol), so his subsequent application for renewal of his Massachusetts license was denied.  In 2015, he applied for another license to carry, which was denied.  Heller and McDonald having been issued in the intervening years, the plaintiff brought a 1983 action, on grounds that the denial violated his right to keep a firearm in his home, which Heller had explained to be the core Second Amendment right.

The First Circuit held, the first time around, that because Massachusetts provided for a more limited type of license—a “Firearm Identification Card” (FID)—that would allow the plaintiff to keep a firearm in his home, the denial of the plaintiff’s application for a license to carry did not violate the Second Amendment and Heller.  The First Circuit acknowledged that an FID would be “insufficient to purchase and transport a firearm to one's home,” but that Massachusetts also provided permits to purchase, which could allow for the plaintiff to have a gun legally delivered to his home, where his hypothetical FID card would allow him to keep the gun.  The court noted, however, that the plaintiff had not applied for either an FID or a permit to purchase.

After that ruling, the plaintiff followed the court’s recommendation.  He applied for (and received) an FID card, and he also applied for a permit to purchase.  However, his permit to purchase was denied because Massachusetts did not allow permits to purchase to be issued to any person ineligible for a license to carry—thus, by dint of the D.C. conviction, the plaintiff was ineligible for a permit to purchase as well.

Which brings us to the current case—and forgive me for walking through the arguments so specifically, but it’ll end up mattering.  The plaintiff sued, and in the trial court he argued that the license-to-carry provision was subject to strict scrutiny and unconstitutional because it prohibited him from “obtaining” or “acquiring” a gun to keep in his home.  The trial court explained that it was assuming that the license-to-carry provision burdened the plaintiff’s Second Amendment rights, but that the provision was subject to intermediate scrutiny anyway because it only applied to people who had previously been convicted of certain crimes.  The court concluded that the provision satisfied intermediate scrutiny and granted summary judgment for the Commonwealth.

On appeal, the plaintiff did not challenge the trial court’s conclusion that the provision satisfied intermediate scrutiny.  Instead, he apparently argued exclusively that the trial court erred in holding that, in the plaintiff’s words, intermediate scrutiny applied to the Commonwealth’s “handgun ban” for people with prior convictions.  However, the plaintiff apparently never explicitly stated what, to probably everyone involved in the case, was blindingly obvious: that the ban was de facto, not de jure.  In other words, the plaintiff was obviously complaining about the fact that his FID card did not actually let him possess a gun because the license-to-carry provision did not let him acquire one in the first place; but he didn’t make that clear in his appeal.

The First Circuit held that the plaintiff had forfeited his challenge to the trial court’s analysis by, essentially, mischaracterizing it: in the court’s words, “we must affirm the grant of summary judgment against him because the only ground that he has given for overturning it rests on a description of the restrictions' effect on his conduct that is clearly mistaken insofar as it is developed at all.”  Slip op. at 17.

This is some slippery stuff.  I don’t know the ins and outs of the case, and it may be that the plaintiff’s lawyer (or the plaintiff himself) did something to make the court think that forfeiture was fair.  But the First Circuit was the one that suggested the FID card as the solution to the plaintiff’s problem in the first place.  Everyone knew what was going on.  

To be clear: I think this is an eminently reasonable resolution.  Heller and McDonald are an enormously disruptive duo that unsettle the whole web of important state regulation of lethal objects, and it is much better that courts move slowly in their wake.  But this is—as the panel seems to recognize—pretty sophistic.

[firstamongequalscommentary]

United States v. Pérez-Rodríguez

(CW: child sexual abuse)

There is an awful lot happening in this case, which is an appeal from a jury verdict finding the defendant guilty of attempted solicitation of a minor for sexual activity under 18 U.S.C. § 2422.  Essentially, a federal agent made a fake Grindr profile that stated, “looking for young fun or to share my young fun.”  The defendant messaged the agent/avatar, and over a long series of text messages, the defendant expressed interest in having sex with—raping—an 11-year-old child that the agent/avatar described as his “boyfriend.”  (I won’t get into the details of the messages because I want to talk about a procedural thing, but they’re reproduced at some length in the opinion.)  They arranged to meet for a sexual encounter with the 11-year-old, and the defendant was arrested.

For the trial, the parties submitted proposed jury instructions, and the defendant sought an entrapment instruction.  At the close of evidence, the defendant renewed that request during a (somehow unrecorded) conference, but the judge denied it on the ground that the evidence hadn’t justified an entrapment instruction—in other words, that the text messages did not reveal a sufficient probability of illegal entrapment to let the issue go to the jury.  However, after the judge instructed the jury, the defendant did not object to the absence of an entrapment instruction.

On appeal, among other things, the defendant argued that the judge erred by not giving the entrapment instruction.  Judge Lipez wrote the majority opinion, joined by Judge Barron, with Judge Kayatta in dissent on the merits of the entrapment-instruction issue.  The panel agreed that that issue was subject to plain-error review under settled First Circuit precedent (which they all agree should be overturned, as I discuss below).  The majority concluded, however, that the judge had committed plain error by failing to give the requested entrapment instruction.

I won’t discuss the merits of the entrapment-instruction issue in much detail, because it’s very long and basically turns on whether the specific text messages and exchanges between the defendant and the agent/avatar were sufficiently ambiguous about the defendant’s intentions and motives—e.g., whether the messages can be read to suggest that the defendant might not have been predisposed to soliciting predatory sex if the agent hadn’t prompted him.  That said, there are some interesting things going on here, and this is the source of the disagreement between the majority and the dissent.  For instance, the disagreement between the majority and dissent prompts one of the more in-depth and frank discussions of sexual messaging that I can remember reading in an appellate decision.  Most of the messages seem to show that the defendant was more interested in sexually abusing the child than in sexual relations with the agent/avatar, but in context, there’s just enough ambiguity about who was focused on what that you can’t say it’s absolutely clear.  And that’s not exactly surprising: conversations about sex don’t tend to be the clearest and most direct that we have.

It’s also noteworthy that, as the majority observes but does not meaningfully address (the dissent doesn’t mention it at all), the text messages were originally in Spanish; the judges are interpreting the certified English translations.  For a case that turns on the subtle shading of little snippets of language, especially in a context where euphemism and idiom are the order of the day, it’s astonishing that the issue of translation is not discussed in the opinion.  If anything, I think it probably supports the outcome (i.e., that it should go to a jury), but I’m baffled why it was left out.

The really interesting part of the opinion, though, is the procedural backdrop.  Basically, the First Circuit has developed a categorical rule—which I take to be an outlier among the circuits—that, in order to preserve an objection to a jury instruction, the objecting party must renew its objection after the jury has been charged.  See U.S. v. Wilkinson, 926 F.2d 22 (1st Cir. 1991).  In this case, because the defendant had not objected after the judge instructed the jury, he had waived his objection to the omission of an entrapment instruction.

All three judges agreed that this rule is highly formalistic and out of step with current practice.  The meat of it is explained in Lipez’s concurrence, with which the other two judges—Barron in concurrence and Kayatta in dissent—registered their agreement.  According to Judge Lipez, the categorical rule derives from the outdated practice, in the 1980s and earlier, that many judges did not review jury instructions with the parties before giving them.  Thus, until the last thirty years or so, a post-charge objection was often the only way to notify the judge of the objection (or, maybe, it’s just that that was the case so frequently that the efficiency of administering the black-and-white rule outweighed the prejudice arising in the occasional instance where a judge did get pre-instruction notice).  As someone who’s only started seeing trials in the last few years, this was news to me.  In my admittedly scanty experience, the exchange of proposed jury instructions prior to charging (and usually prior to trial) is the norm, not the exception, and a judge will usually be on full alert if there’s a dispute about instructions.  I mean, in this very case, the entrapment instruction was broached as a possibility before trial, and then raised again in the charging conference during trial.  It’s absurd to think that the judge wasn’t on notice of it—and it’s totally understandable that a defense lawyer, near the end of a trial, might not want to make an obviously futile objection in full view of the just-charged jury.

The issue seems to come up often enough that I have to imagine it’ll be taken en banc at some point (see, e.g., this straightforward opinion from just a couple weeks later, citing the Lipez concurrence here).