"The U.S. Supreme Court on Tuesday ruled unanimously that convicted felons could not go to federal court to seek restoration of their gun rights once Congress blocked and defunded an administrative procedure for doing so. In a ruling written by Justice Clarence Thomas, the Court studiously avoided mention of Second Amendment gun right issues that had been raised in some briefs in the case."

The case is United States v. Bean, and we posted a synopsis of it yesterday, here.

Here is the text of the opinion. And the Washington Post provides this view of the decision.

We just received this email from Stephen Bright, Director of the Southern Center for Human rights, about a case that Chris Adams, a lawyer with the Center, just won. Chris is an outstanding lawyer, and we want to share his victory.

(from Stephen's email):

"About a year ago, we got a letter from a Albert Joe Ryans who had been in jail in Phoenix City, Alabama for two years facing capital murder charges and had seen his court-appointed lawyer only once for a few minutes. I asked Chris Adams to speak with him. When Chris got to the jail, Ryans was so glad that someone had come to see him that he broke down in tears. Chris took the case, tried to get the state to dismiss the charges, and finally persuaded the prosecutor not to seek the death penalty. This week, Ryans broke down again when the judge directed a verdict of acquittal. This is another great victory for Chris. newspaper story below. - steve bright"

Columbus, Ga., Ledger Inquirer, Dec. 06, 2002
Judge acquits man of murder - Greene rules state failed to provide enough evidence against Albert Joe Ryans

"The murder trial of Albert Joe Ryans ended abruptly Wednesday when Russell County Circuit Court Judge George Greene ordered a directed verdict of acquittal for lack of evidence linking him to the 1998 slaying of a Phenix City car wash attendant.

Ryans, 42, sobbed in relief and embraced defense attorney Chris Adams of Atlanta as relatives of the murder victim gasped and cried out in protest when Greene made his ruling.

Moments after District Attorney Kenneth Davis rested the state's case, Greene ruled that the prosecution's evidence failed to produce an overt act linking Ryans to the slaying committed by Johnnie Lee James, 42, who stabbed 79-year-old Edward Abernathy a dozen times during a Dec. 10, 1998 robbery at the Goo Goo Car Wash on Seale Road.

The state's case also presented no evidence that Ryans was aware of the robbery planned by James and codefendant Robin Diggins, 31, who gave James the knife used in the slaying, Greene said. The state's case showed Ryans was only told of the robbery plan by Diggins after James had left their car to go to the car wash, and that Ryans had been at a pay phone outside the car when Diggins and James talked of the robbery, the judge said.

Members of the Abernathy family erupted in angry tears and loud protests upon hearing the decision. Although Ryans is likely to soon be a free man, Adams and defense co-counsel Joel Collins said he will first be returned to a south Alabama prison, where he has spent most of the last four years serving time for revocation of a prior conviction for a credit card fraud charge. Adams said Ryans has never been involved in violent offenses."

We add our congrats to Chris and Joel, Mr. Ryans and the Center.

UNITED STATES V. BEAN (01-704)
Web-accessible at: http://supct.law.cornell.edu/supct/html/01-704.ZS.html

Argued October 16, 2002 -- Decided December 10, 2002
Opinion author: Thomas

===============================================

Because of respondent's felony conviction, he was prohibited by 18 U.S.C. sect. 922(g)(1) from possessing, distributing, or receiving firearms or ammunition. Relying on sect. 925©, he applied to the Bureau of Alcohol, Tobacco, and Firearms (ATF) for relief from his firearms disabilities. ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon such applications. Invoking sect. 925©'s judicial review provision, he filed suit, asking the District Court to conduct its own inquiry into his fitness to possess a gun and to issue a judicial order granting relief. The court granted the requested relief, and the Fifth Circuit affirmed.

Held: The absence of an actual denial by ATF of a felon's petition precludes judicial review under sect. 925©. The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain preconditions are met, and an
applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investigate or act upon the applications. Section 925©'s text and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction.

Grammatically, the phrase "denied by the Secretary" references the Secretary's decision on whether an applicant "will not be likely to act in a manner dangerous to public safety," and whether "the granting of the relief would not be contrary to the public interest." Such determination can hardly be
construed as anything but a decision actually denying the application. Under sect. 925©'s procedure for those seeking relief, the Secretary, i.e., ATF, has broad authority to grant or deny relief, even when the statutory prerequisites are satisfied. This procedure shows that judicial review cannot occur without a dispositive decision by ATF.

First, in the absence of a statutorily defined standard of review for action under sect.925©, the Administrative Procedure Act (APA) supplies the applicable standard. 5 U.S.C. sect. 701(a), 706(2)(A). The APA's "arbitrary and capricious" test, by its nature, contemplates review of some action by another entity.

Second, both parts of sect. 925©'s standard for granting relief--whether an applicant is "likely to act in a manner dangerous to public safety" and whether the relief is in the "public interest"--are policy-based determinations and, hence,
point to ATF as the primary decisionmaker. Third, sect.925© allows the admission of additional evidence in district court proceedings only in exceptional circumstances. Congressional assignment of such a circumscribed role to a district court shows that the statute contemplates that a court's
determination will heavily rely on the record and the ATF's decision. Indeed, the very use in sect. 925© of the word "review" to describe a court's responsibility in this statutory scheme signifies that it cannot grant relief on its own, absent an antecedent actual denial by ATF. Pp. 2-7.

253 F.3d 234, reversed.

Thomas, J., delivered the opinion for a unanimous Court.

Here is what it means.

Comments, anyone?

The Supreme Court Monday refused to hear a case involving providing appointed counsel to death row inmates.

"The Supreme Court refused Monday to consider giving poor death row inmates more free legal help. The court had been asked to force the government to pick up the tab for inmates' legal bills during clemency proceedings and some last-minute appeals. Defense attorneys argued that a 1998 federal law requires death row inmates' lawyers to continue representing them through "every" stage of appeals."

"Congress made clear that people sentenced to death should not be abandoned by their lawyer as an execution date nears," University of California, Berkeley, law professor Charles Weisselberg told the court, on behalf of lawyers in a fees dispute. "Clemency is a critical part of our criminal justice system, and is particularly vital when the state seeks to take a human life."

"Many death row inmates are poorly education, retarded, or mentally ill, wholly unable to marshal the materials necessary to file their own clemency applications. They will be executed without clemency review," Weisselberg wrote in court papers."

The Bush Administration, through Solicitor General Ted Olson, opposed the funding.

The cases are In RE: Gary A. Taylor and William S. Harris, 01-1605, and In RE: Philip Alan Wischkaemper and Gary A. Taylor, 01-1623.

A recap from today's Washington Post on yesterday's oral arguments on the reach of Miranda rights :

"In 1997, farmworker Oliverio Martinez was shot and seriously wounded in a struggle with Oxnard, Calif., police. As he lay racked with pain on a hospital gurney, police Sgt. Ben Chavez, investigating the police shooting, questioned him for 45 minutes despite Martinez's insistence that he didn't want to talk."

"Martinez later sued, alleging among other things that Chavez's questioning, which did not include reading Martinez his rights, amounted to an attempt at coerced self-incrimination -- even though Martinez was not eventually charged with a crime."

"Lower courts upheld Martinez's claim, but Chavez has appealed to the Supreme Court, arguing, in part, that there was no violation of Martinez's constitutional rights since they apply only if statements are used against a suspect at trial."

"Civil libertarians say a ruling for Chavez could permit police to abuse people they may not want to charge with a crime, but do want to extract information from."

"The Bush administration, however, supports Chavez, suggesting that a ruling against him could tie officers' hands when they may need information quickly."

"Justice Antonin Scalia wondered about the case's implications for fighting terrorism. "Let's assume you think someone is going to blow up the World Trade Center. Could the police beat him with a rubber hose?" Scalia asked."

"I understand the terrorism situation is a difficult one, but that's not our case," Martinez's attorney, R. Samuel Paz, replied."

"Stevens demanded to know from Deputy Solicitor General Paul Clement whether there is "any protection against the police just grabbing someone off the street and beating him up to get information when they have no intention of using it at trial."

Justice reporter Tony Mauro has this account of the oral arguments, including the officers' lawyer's acknowledgement for the first time that there was coercion.

Our thoughts on the case are here. A decision is expected in June.

"A federal appeals panel in San Francisco ruled yesterday that the atheist father who challenged the Pledge of Allegiance on behalf of his daughter had a right to bring the case. In its ruling, the panel reaffirmed its view that allowing schoolchildren to hear the words "under God" in the pledge amounts to "unconstitutional indoctrination."

The Supreme Court hears argument today in Martinez v. Chavez, a case that may determine the continued viability of Miranda rights. We reported on it here.

The 11th Circuit Court of Appeals has reversed the convictions in the 1998 church arson cases.

"The 11th U.S. Circuit Court of Appeals has reversed 2-1 the arson convictions of self-described "Luciferian" Jay Scott Ballinger, who set fire to five North Georgia churches during the 1998 Christmas and New Year's holidays. The majority concluded that state prosecutors should have handled the cases because the fires were not sufficiently connected to interstate commerce to trigger a 1996 federal church arson statute. "

On December 4, the Supreme Court will hear arguments in a case that could reshape and weaken Miranda warnings. Specifically, the court will decide whether the Fifth Amendment conveys a "constitutional right to be free of coercive interrogation," or just a right not to have forced confessions against them at trial. The Department of Justice and the Bush Administration, not surprisingly, are behind the police. The case is Oliver Martinez v. Chavez. The 9th Circuit's opinion, which is the one under review by the high court, is at 270 F.3d 852, available here for free.

Be forewarned, the case is a sad one. Martinez, a 29 year old farm worker, was riding his bicycle home from his work picking strawberries. Police were looking for a narcotics suspect they wrongly believed was selling drugs in a field. When Martinez passed, they demanded he stop, get off his bicycle and 'assume the position.' One officer located Martinez' strawberry knife. A struggle of some sort ensued, although police have conceded Martinez never struck or kicked them. One of the cops opened fire on Martinez, pumping him with five bullets, leaving him blind in one eye and paralyzed. He is now 34 years old and resides with his father in a one room trailer. He has a wheelchair and wears dark glasses to cover his missing eye. Oxnard has refused to pay for any therapy for him. He has not been charged with a crime.

Immediately after the shooting, Martinez was taken to the hospital. The police barged their way into the emergency room where Martinez was being treated. He repeatedly told them he did not want to talk to them. They persisted in trying to question him until he passed out.

Martinez sued the city and police for a federal civil rights violation (called a 1983 action) seeking damages for unlawful arrest and engaging in excessive force. The action lies against police officers who violate an individual's clearly established legal rights and prevents them from using qualified immunity from lawsuits as a defense to the lawsuit.

The lower courts ruled in Martine'z favor on the issue of whether he could sue the city and police. The 9th Circuit ruling, which is now under review by the Supreme Court, stated:

"Sgt. Chavez doggedly pursued a statement by Martinez despite being asked to leave the emergency room several times. A reasonable officer, questioning a suspect who had been shot five times by the police and then arrested, who had not received Miranda warnings and who was receiving medical treatment for excruciating, life-threatening injuries ... would have known that persistent interrogation of the suspect despite repeated requests to stop violated the suspect's 5th and 14th Amendment right to be free from coercive interrogation."

"Without proper safeguards the process of in-custody interrogation . . . contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. Chavez persisted in questioning Martinez during, not after, medical treatment. Although Martinez did not... affirmatively request counsel, he repeatedly requested that Sergeant Chavez refrain from interviewing him until his medical treatment was complete and his life was no longer in danger. In light of the extreme circumstances in this case, a reasonable police officer in Sergeant Chavez's position could not have believed that the interrogation of suspect Martinez comported with the Fifth and Fourteenth Amendments. Accordingly, the district court did not err by holding that on these facts qualified immunity was not available to Chavez to insulate him from Martinez's civil rights suit for damages."

U.S. Solicitor Gen. Theodore B. Olson and Michael Chertoff, the chief of the Justice Department's criminal division, will argue that there is no clearly established constitutional right to be free from police interroogation and that therefore Martinez's suit should be dismissed.

This is preposterous to us. The Fifth Amendment has a specific guarantee against self-incrimination. No one can be forced to answer police questions against their will. The most the police can demand, particularly during a 'stop and frisk' or Terry-type stop is basic identification.

The exclusionary rule, fashioned by the Supreme Court in part as a remedy for police misconduct, holds that if the police violate a suspect's Fifth Amendment rights, any statements obtained as a result of the improper questioning may not be admitted or used against them at trial. The purpose of the exclusionary rule iis to is to deter police from engaging in such misconduct, by denying them the benefit of the fruits of their illegal conduct. It turns the exclusionary rule on its head to say that police can engage in the misconduct so long as they abide by the remedy -not using the statements at trial.

The question before the Court, as stated in the Amicus brief of the California Attorneys for Criminal Justice, the ACLU and other groups, is "how to address flagrant and willful violations of Miranda's dictates by law enforcement agencies that systematically and institutionally disregard this Court's admonitions. "(Brief available on Lexis.com in Supreme Court Briefs database.)

A ruling in favor of the police will eviscerate Miranda warnings. As University of Texas law professor Susan Klein told the LA Times:

"Officers will be told Miranda is not a constitutional right. If there is no right, and you are not liable, why should you honor the right to silence?" she asked. "I think it means you will see more police using threats and violence to get people to talk. Innocent people will be subjected to very unpleasant experiences."

Two years ago the Supreme Court considered a challenge to the Miranda warnings and upheld them. Chief Justice William Rehnquist, who is known to oppose the warnings, sided with the majority. We don't know if he will join those justices voting to uphold Miranda rights as consitutional rights, but we predict Miranda will again survive.

We hope Martinez garnishes the cops severance pay and pension funds for as long as they live.

Update: Atrios, Calpundit and Daily Kos appear to agree the cops position is over the top nonsense and out of step with the law.

A federal judge in New York has ordered police to stop arresting drug users who participate in needle-exchange programs.

The judge "granted a declaratory judgment in favor of plaintiffs who alleged police were wrongly charging users with drug possession based on the residue of drugs found in used needles, and with illegal possession of needles and syringes."

On November 15, 2002 the Second Circuit held that a court's denial of a motion to withdraw a plea of guilty was an abuse of discretion because defendant's attorney's affirmative misrepresentation about the deportation consequences of her guilty plea fell below an objective standard of reasonableness, amounting to ineffective assistance of counsel.

The case is US v. COUTO, No. 01-1636 (2d Cir. November 15, 2002)
To read the full text of this opinion, go here.

In its opinion, the Court referenced the Supreme Court's citing of the amicus brief filed by the National Association of Criminal Defense Lawyers in the St. Cyr case last year. The Couto Court stated:

"We have held that an attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness. See, e.g., United States v. Santelises (Santelises II), 509 F.2d 703, 704 (2d Cir. 1975) (per curiam) (noting that attorney's failure to inform a defendant that a guilty plea could result in deportation "is of no legal significance"). At the same time, we have implied that an attorney's affirmative misrepresentations on the subject might well constitute ineffective assistance. See, e.g., id. ("Since [the attorney] does not aver that he made an affirmative misrepresentation, [the defendant] fails to state a claim for ineffective assistance of counsel."); United States v. Santelises (Santelises I), 476 F.2d 787, 789-90 (2d Cir. 1973) (no ineffective assistance claim where the defendant "does not allege that he was affirmatively misled by his counsel"). And on some occasions, we have suggested that an attorney does have a duty to provide that information. See Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974) ("Where his client is an alien, counsel and not the court has the obligation of advising him of his particular position as a consequence of his plea." (emphasis added)). Moreover, recent Supreme Court authority supports this broader view of attorney responsibility as well. See, e.g., INS v. St. Cyr, 533 U.S. 289, 323 n.50 (2001) ("Even if the defendant were not initially aware of [possible waiver of deportation under the Immigration and Nationality Act's prior] § 212©, competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision's importance." (emphasis added) (citing Amicus Br. For Nat'l Assoc. Criminal Defense Lawyers et al. at 6-8)); id. at 322 n.48 (noting that "the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel `should fully advise the defendant of these consequences' " (citing ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed. 1982))). (Emphasis supplied).

Press Release from the National Association of Criminal Defense Lawyers which submitted an Amicus Curiae brief in the FISA case opposing the position of the Justice Department:

NOVEMBER 18, 2002 -- FOR IMMEDIATE RELEASE

FISA court decision follows Justice Department arguments Fourth Amendment analysis shortchanged in foreign intelligence court decision

Washington, D.C.--In response to today's ruling in favor of the Justice Department's proposed further expansion of use of the Foreign Intelligence Surveillance Act, after the court had found multiple abuses by the Justice Department of the previous provisions of the act, Joshua Dratel, co-chair of the Amicus Curiae Committee of the National Association of Criminal Defense Lawyers, issued the following statement:

"Having found that the fox has eaten half the chickens, the court has decided that the fox should have more authority over the chicken coop. The court has abdicated its responsibility of meaningful Fourth Amendment analysis, and rolled back 25 years of precedent as to the proper boundaries between criminal investigation and foreign intelligence surveillance.

"We will continue to analyze the decision with an eye toward exploring all potential avenues for further review."

NACDL's Amicus Brief, authored by Joshua Dratel, is available here.