Putting teeth in Heller’s promise

[Cross-posted at the Collateral Consequences Resource Center, www.ccresourcecenter.org]

When Congress enacted the federal Gun Control Act of 1968, with its broad provisions for the disarmament of potentially dangerous people, the Second Amendment laid dormant. Courts paid the Second Amendment cursory attention, considering the provision only when rubber-stamping it with an erroneous, unexamined “collective right” interpretation that rendered the right to arms a nullity.

Some of the Gun Control Act’s Congressional sponsors were happy to parrot that view. S. Rep. 89-1866 at 68 (1966) (individual views). But Congress understood that the Act ensnared many people whose disarmament could not be justified as beneficial to society or basically just. As the title of a leading article on the subject asks, “Why Can’t Martha Stewart Have a Gun?” The task of ferreting out the hard luck and irrational cases fell to the Executive Branch, which would evaluate individual applications for relief based on personal circumstances, with unsuccessful applicants having recourse to judicial relief. 18 U.S.C. § 925(c). This process more or less worked, for many years, until anti-gun rights forces in Congress defunded the program in the mid-1990s. With the Government unable to print or process applications for relief, a growing number of people convicted of non-violent, sometimes not terribly egregious crimes found themselves forever prohibited from touching firearms. While some states provided an alternative relief process, many did not, and federal offenders could only pray for a presidential pardon to restore their rights.

This injustice is nearing its end. In 2008, the Supreme Court clarified that people have an individual right to keep and bear arms. The rational basis test for gun restrictions went out the window. In came a burden on the Government to actually prove, and not merely assert, that each law restricting access to firearms is consistent with a fundamental constitutional right retained by the people. Categorical prohibitions leveled at people convicted of crimes, including the so-called “felon in possession” ban (though it also reaches many misdemeanants), could be upheld in a general sense. But most courts have now realized, just as Congress did in enacting the federal gun control scheme, that the traditional grounds for denying individuals the means of self-defense—dangerousness, untrustworthiness, a serious risk of unlawful violence—are not going to be satisfied when someone lies about having sold Imclone at 60 on insider information, or is convicted of “felony fishing without a license,” or has pled guilty to any misdemeanor that might be punished by over two years in jail (the alleged standard often employed by courts enforcing the “felon in possession” ban).

Most of the early cases arose, as Second Amendment cases often do, in the criminal context. Courts had no trouble telling plainly dangerous criminals charged with being felons in possession that the Framers did not have them in mind when ratifying the Second Amendment, but were usually careful to leave the door open, as Congress did in enacting Section 925(c), for people who once erred but are not a threat today, if they ever were. For these individuals, one leading federal appellate case set the task as follows:

To raise a successful as-applied challenge, [an individual] must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.

United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011).

The nation’s leading sponsor of landmark gun rights litigation, the Second Amendment Foundation, has tasked me with making full use of this avenue for relief. We are carefully selecting deserving cases to put some teeth behind Heller’s promise, and demonstrate the absurdity of the Government’s shotgun-approach to firearms disabilities. In light of the Supreme Court’s renewed interest in the constitutional avoidance doctrine, some of our cases also challenge the overly-aggressive statutory interpretation of the federal prohibition with which courts have become unfortunately comfortable. There is, after all, no question that the constitutional questions raised by disarming plainly non-threatening individuals are significant.

The early results are promising. We’re two for two in Pennsylvania. Suarez v. Holder, No. 14-968-WWC, 2015 U.S. Dist. LEXIS 19378 (M.D. Pa. Feb. 18, 2015); Binderup v. Holder, No. 13-6750-JKG, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa., Sept. 25, 2014). Julio Suarez, a decorated Army veteran, holder of a security clearance, and elder in his church, faced a lifetime prohibition of Second Amendment rights owing to a quarter-century old Maryland misdemeanor conviction for carrying a handgun without a license. Suarez can’t recidivate—his state doesn’t require a license to carry a handgun, and he’s eligible for a license to carry a handgun concealed. But the government claimed that the bad facts of his 1990 arrest—Suarez had a .12 BAC at the time he was stopped (though not convicted of DUI or any other traffic offense)—meant that he should continue to lose his fundamental rights today.

Daniel Binderup’s only offense was a misdemeanor charge for “corruption of minors,” stemming from a long ago consensual affair with an employee just shy of her 18th birthday. Obviously, nobody approves of that conduct—including the state of Pennsylvania, which does not consider him a sex offender and has long ago restored his gun rights (Binderup received a sentence of probation), and Binderup’s wife, who forgave him. The couple has now been married for over 40 years, and has raised two wonderful kids. Like Suarez, Binderup is a stable and productive member of society. The judges in both cases saw nothing that would indicate either gentleman poses any sort of firearms threat beyond that posed by any other law-abiding, responsible citizen.

The Government has appealed its loss in Binderup, and we expect it to do the same in Suarez. In both cases, the Government fails to comprehend what an “as applied” challenge means, citing piles of statistics for the proposition that anyone convicted of a crime, without exception, might recidivate. Its briefing extends the argument even to non-violent property offenses. But so what? Binderup and Suarez’s offenses didn’t involve the threat of force. And even if they had, neither of these individuals are likely to recidivate. If generalized recidivism studies can defeat Binderup and Suarez’s cases, then they can defeat all as-applied challenges, effectively overruling Barton and the growing list of appellate precedents confirming real limits on the scope of categorical prohibitions.

The weakness of the Government’s claims is underscored by its resort, at least in Binderup’s case, to argument by ad hominem. I won’t repeat here some of the names the Government called my client in the briefing, but the district court was decidedly unimpressed by that approach, and I don’t believe that the court of appeals will like it any better. Moral disapproval is to be expected when one transgresses the law, but it does not suffice to permanently deprive people of their fundamental rights.

Of course, the ultimate solution is for Congress to re-fund Section 925(c)’s administrative relief program. Doing so would not entirely eliminate the Second Amendment cause of action, but it would prevent an onslaught of constitutional challenges that the Government cannot possibly defend. The judiciary, and the civil rights bar, will be sure to drive home this point as frequently as necessary in the immediate future.

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Putting guns back in the hands of totally harmless citizens

In 1996, Dan Binderup did a bad thing.  He conducted an affair with an employee at his bakery. The relationship was fully consensual, and the employee was legally able to consent to the affair under state law (Pennsylvania). But she was just 17, and you know what I mean when I tell you that the government couldn’t just see him standing there… Binderup pled guilty to a “Corruption of Minors” charge, a misdemeanor for which he might have received five years in state prison, though he sensibly received only a fine and a sentence of probation.

Binderup’s wife forgave him. They remain happily married, in their 41st year together, having successfully raised two great kids. Binderup has no record of violence of any kind, and indeed, has otherwise stayed completely out of trouble. He continues to be a productive, self-employed member of his community.

The conviction triggered a firearms prohibition under both state and federal law, but with the prosecutor’s blessing, the state court restored Binderup’s firearm rights… as far as Pennsylvania is concerned. The federal government, we had to sue.

Today, we won. The case is somewhat complex, and as this really isn’t a work day for me (happy 5775 everyone!) I have other things to do right now than go into the ins and outs of this 86 page opinion.  You can read the whole thing, but the bottom line is:

IT IS DECLARED that application of 18 U.S.C. § 922(g)(1) to plaintiff Daniel Binderup for his prior conviction for Corruption of minors under 18 Pa.C.S.A. § 6301 violates the Second Amendment to the United States Constitution.

IT IS FURTHER ORDRERED that defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of this Order shall be permanently enjoined from enforcing 18 U.S.C. § 922(g)(1) against plaintiff Daniel Binderup for his prior conviction for Corruption of minors under 18  Pa.C.S.A. § 6301.

Special thanks to Douglas Gould for teaming up with me on this and to the Second Amendment Foundation for making it possible.

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Palmer Stay Proceedings

The District had filed a motion for a stay of the injunction in Palmer.

We didn’t object to a short, 90 day stay, but we’re not on board with anything beyond that.

The Court stayed its injunction for the 90 day period, but…

Based on the papers that Defendants have filed in support of their motion for a stay pending appeal, the Court is not convinced that Defendants will be able to demonstrate a likelihood of success on the merits to warrant such a stay. Nonetheless, the Court will provide the parties with an opportunity to present their arguments in full before ruling on this part of Defendants’ motion.

Stay tuned…



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Your D.C. Handgun Carry Permit — UPDATED

Want to know what the District of Columbia’s Metropolitan Police Department is being told about Palmer? A confidential informant has supplied the memo.

Two caveats:

1. If you have any questions about how MPD interprets this memo, please direct those to MPD.  It’s not my memo.

2. The District has indicated that they will seek a stay of the decision. If a stay were to be granted, this policy would doubtless change, and I can’t guarantee that I’ll be able to update this blog post in real time. So be careful out there.


I have a better understanding of what the city will now do.

The city will probably file an appeal — that’s within their right.

The city would ask for a stay pending the resolution of the appeal — they can ask for that, and we would oppose that.

The city would ask, in the alternative, for a shorter, closed-ended stay of the Palmer decision to allow the city council time to enact remedial legislation. In Moore, the state of Illinois received first 180 days, then over our strenuous objections, another 30 days on top of that.  We would not agree to anything in that neighborhood here, but we would not oppose a shorter stay that would give the city council some reasonable window in which to make a decision, without frustrating the progress of the appeal. The decision as to whether to grant any stays and if so for how long, of course, belongs to the courts.

I’d expect the city to file something later this afternoon.

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Victory in Palmer v. D.C.

Justice never sleeps…. not even on a Saturday afternoon, when this opinion was just handed down.

In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny. Therefore, the Court finds that the District of Columbia’s complete ban on the carrying of handguns in public is unconstitutional. Accordingly, the Court grants Plaintiffs’ motion for summary judgment and enjoins Defendants from enforcing the home limitations of D.C. Code § 7-2502.02(a)(4) and enforcing D.C. Code § 22-4504(a) unless and until such time as the District of Columbia adopts a licensing mechanism consistent with constitutional standards enabling people to exercise their Second Amendment right to bear arms.4 Furthermore, this injunction prohibits the District from completely banning the carrying of handguns in public for self-defense by otherwise qualified non-residents based solely on the fact that they are not residents of the District.

In 2012, I won Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), which struck down Illinois’ total ban on the carrying of defensive handguns outside the home. With this decision in Palmer, the nation’s last explicit ban of the right to bear arms has bitten the dust. Obviously, the carrying of handguns for self-defense can be regulated. Exactly how is a topic of severe and serious debate, and courts should enforce constitutional limitations on such regulation should the government opt to regulate. But totally banning a right literally spelled out in the Bill of Rights isn’t going to fly.  My deepest thanks to the Second Amendment Foundation for making this victory possible and to my clients for hanging in there. Congratulations Americans, your capital is not a constitution-free zone.

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Brief of the Day — Zivotofsky v. Kerry

This morning, I had the distinct honor and pleasure to file an amicus brief co-written with Prof. Eugene Kontorovich, in Zivotofsky v. Kerry, the “Jerusalem passport case.” We filed on behalf of the Brandeis Center for Human Right Under Law, on whose Legal Advisory Board I serve, and twelve leading professors of foreign relations and constitutional law from across the ideological spectrum (see below) — I’m not sure how often it happens, but we are blessed to have support from both Erwin Chemerinsky and John Eastman in this endeavor.

The case purports to present a serious separation of powers question surrounding the recognition of foreign governments. Who is in charge of setting American policy as to the legal recognition of other nations? We argue that this difficult question can and thus should be avoided, because there is a much simpler way to resolve the case.

The issue: Americans born overseas typically receive a passport listing their “place of birth” as the country in which they were born. But for Americans born in any part of Jerusalem (1949 or 1967 cease-fire lines make no difference), the State Department does not write “Israel” but “Jerusalem.”  The fear, allegedly, is that Arab countries would object to the State Dept. treating Jerusalem as a city in Israel, even though, that’s where it is. Not that some of these regimes are thrilled to see travelers with passports evidencing birth in “Israel,” and State has no qualms listing places of birth such as “Taiwan,” “Gaza Strip,” “West Bank,” or for some people, even  “Palestine,” although the U.S. doesn’t recognize any of those countries, and the last three examples, of course, are not and have never been countries.

Congress had earlier passed a law mandating “Taiwan” appear as the place of birth for those born there who request it, notwithstanding Jimmy Carter’s “One China” policy (that the U.S. recognizes only mainland China, and Taiwan as part of that China). The President acquiesced in that one, but he resists a similar law offering Americans born in Jerusalem the ability to list “Israel” as their place of birth. The D.C. Circuit struck down the law, and the Supreme Court granted certiorari (as it virtually automatically does if an Act of Congress is struck down by a federal appellate court).

Who has the power to recognize the proper sovereignty over Jerusalem–the Congress, which believes the city belongs to Israel, or the President, who prefers an official policy of neutrality pending negotiations (good luck with that)?  The Constitution doesn’t say much about the recognition power, and neither did the Framers.  American history, as the Petitioner shows, tends to indicate that Congress indeed plays a significant role. We expect briefs from the Senate and from Members of the House discussing that as well.

But happily, there is no need to get into that thicket.  As we explain, the recognition power has nothing to do with geography. A given entity can be recognized as a state, and then recognition might be extended to its government, but neither requires the resolution of territorial disputes.  The UN admitted both North and South Korea as members, though they each claim the entire Korean peninsula.  And the US has friendly relations with many nations that disagree about their borders. But decisions must be and are made, about where things are located, when it comes time to operate the government.

In contrast, a President wielding some nebulous “geographic” power could nullify numerous acts of Congress, and wreak total havoc —  if he could exclusively declare that some part of a country is really in no country or some other country, or if Congress couldn’t relate to disputed or unrecognized territories in exercising its powers. Imagine if Congress couldn’t declare war on an unrecognized country, such as North Korea. Or if it did, if the President could then bomb Jerusalem because after all, if it’s not in Israel, it might as well be in North Korea.  Or what if domestic vintners convinced the President that Bordeaux is not really in France, but part of some other country whose wines receive less favorable tariff treatment.

The place of birth entry in the American passport is simply an administrative feature, meant to identify people, and is well within Congress’s control under its powers over immigration, nationality, foreign commerce, and war.  It has nothing to do with recognition, whoever is in charge of that, to whatever extent.  Indeed, the President, who makes an odd fuss about printing a passport that has “Israel” as a place of birth–an act that communicates nothing about Jerusalem at all–routinely lists Jerusalem as being in Israel in other contexts. The CIA Factbook seems to think Jerusalem is Israel’s capital (click “People and Society” and scroll down to “Major Urban Areas”). And the Executive Branch even has a “Board on Geographic Names” that identifies geographical features for the federal government. The President should hope that foreign passport officials don’t search where, according to our government, the different Jerusalems are located around the world. If the President can list Jerusalem as being in Israel, without withdrawing his position regarding the city’s appropriate legal status, why can’t Congress do the same thing, regardless of its position on the question of recognition?

It’s easy to criticize the President’s position here on many grounds. Quite apart from what one believes about the Middle East conflict, it’s an astonishing assertion of executive power. Definitely one of the cases to watch this upcoming Supreme Court term.


Amici Professors, in alphabetical order

Erwin Chemerinsky, John Eastman, Eugene Kontorovich, David Kopel, Julian Ku, Michael Lewis, Calvin Massey, Jeremy Rabkin, Martin Redish, Abraham Sofaer, and Louise Weinberg.

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Lisa Madigan Doesn’t Want You to Tip

“[D]efendants should not be required to pay the tips provided by Gura for the cab fare and his meals.”

Waiters, cabbies, and anyone else whose Illinois livelihood depends at least in part on gratuities, listen up: your attorney general is against tipping. Or at least, she doesn’t want me to tip you when I travel to Illinois on business. Or, at least on the business of stopping her from violating your constitutional rights.

Madigan is spending gobs of taxpayer money–the money withheld from your wages–fighting the idea that tipping is customary and ordinary. And it’s probably a losing battle, which will cost you more money.

*            *            *

Americans talk a good game about “freedom” and “liberty.” We like to believe that our government is bound to respect the people’s fundamental rights, and that an independent judiciary will hold accountable officials who fail to do so. That’s all well and good, and sometimes it even works out that way.

But nothing grinds a nice idea into the dirt as much as the pesky question: how do we pay for this? Lawyers, after all, have bills to pay, including ordinary bills for the expense of litigation, and constitutional litigation is complex and highly specialized. Hoping to ensure that the Bill of Rights would attract the same quality of representation as Microsoft and General Motors attract with their dollars, Congress enacted 42 U.S.C. § 1988, promising that prevailing plaintiffs who vindicate their rights may recover from the losing defendants—who, it must be remembered, violated the highest law of the land—their “reasonable attorney’s fee” and expenses.

Of course it’s not quite like billing a paying client. Microsoft and GM pay their lawyers even if they lose, but a court’s order that defendants pay for civil rights plaintiffs’ legal bills is contingent on success. It doesn’t take an advanced economics degree to figure out that if the market supports lawyers charging X dollars to clients who are expected to pay no matter what, and on time, the market commands something more than X where payment is iffy and later, to account for the (very substantial) risk of not being paid at all, and to make up for the time that is never fully compensated. But reason and logic are often out the window when it comes to fee shifting cases. The Supreme Court long ago forbade the recovery of any contingency interest in such matters.

The government can also rip-off civil rights lawyers and the groups that fund them by caving at the last minute. It can fight aggressively for years on end, wasting massive resources, only to “voluntarily” accede to the inevitable reality at the last moment and claim that the plaintiffs and their attorneys didn’t actually “prevail.” Yep, Supreme Court says that’s OK, too.

There’s no limit to how much the haters will push this logic. In McDonald, after we beat the City of Chicago in the Supreme Court, the city quickly repealed its handgun ban before the ink was dry on the Court’s mandate, the official paperwork commanding the lower court to enforce the decision, and then claimed we were entitled to nothing because it changed the law “voluntarily.” Judge Shadur actually bought that, before being reversed. But it took work.

And oh yes, of course, the work. To recover attorney fees and costs, one must litigate for them, and this does often become a second major litigation. The same government officials who were found culpable for violating the people’s fundamental rights are now suddenly concerned with protecting the poor taxpayers—oh heavens, those poor taxpayers, a/k/a “those same people whose rights we trampled”—from the greedy plaintiffs’ lawyers. And the defendants often use the government’s unlimited resources to keep fighting the bill from the original litigation.

Courts award “fees on fees” for extra fee litigation, but that’s not much of a deterrent against city hall. After all, it’s not their money, it’s yours. Had they wanted to save money, perhaps they wouldn’t have violated the law in the first place. And their goal is not to defend “the taxpayers,” please… it’s to deter and punish civil rights litigation. Courts nitpick and schmeiss and dice any attorney bill anyway. Add the lack of contingency, the severe delays for which interest is never quite adequate, and the incredible nastiness of fee litigation itself, the message civil rights violators send to the bar comes through loud and clear: don’t do this.

And of course, the Chicago Way of sending this message is very special indeed. In Moore v. Madigan, my colleagues and I convinced the Seventh Circuit to strike down Illinois’ total ban on the carrying of defensive handguns, as a violation of the Second Amendment. The legislature could regulate handguns if it wished, but the total ban was gone. The state opted for regulation, the bugs in which are still being worked out, but basically, here’s a fundamental right that people can now exercise, because of our work.

The market value of that landmark work — for three lawyers to develop this case, file and pursue it in the U.S. District Court, and successfully prosecute the Seventh Circuit appeal (including en banc and other post-judgment adventures), is $219,807 in attorney time and $3,193.29 in costs. It’s amply justified. (Our friends in the parallel NRA case, who staff these things very heavily, think the value is $606,298 and $12,308.30 — God bless ‘em!)

You think the state is mad?

Take a look at the deep dish of frivolity and obstinance that is the state’s opposition to our petition for attorney fees. And when everything is said and done, the state claims that the market value of litigating a case like Moore v. Madigan is $38,695 in attorney time and $1,853.38 out of pocket.


We disagree. How does the state get to these absurd figures? First, there is the stupid argument that we didn’t win the case. This alone should be grounds for sanctions, but it’s just the tip of the iceberg. A chunk of my time is mysteriously challenged because there’s no proof I represented the plaintiffs (?). For unknown reasons, they claim Jensen was terminated during the appeal (false — he was never terminated). Our hourly rates, which are absolutely in line with the market for what we do, and consistent with what we’ve billed and been awarded by courts, are too high—because insurance defense (perhaps the absolute bottom, dollar-wise, of the litigation market) attorneys (who work for the state) in Springfield (not where folks go shopping for specialized constitutional litigation) bill less.

Then there’s the usual irrational nitpicking over billing entries—if two lawyers spend an hour on the phone, a bill for each lawyer’s time is “duplicative.” And for every little thing that we did, if we didn’t instantly win, then we allegedly didn’t prevail. That’s not how it works, of course. If the lawyers prevailed on the claim–and we did–the issue is whether billing for that task was reasonable under the circumstances. Under the state’s theory, David Sigale can’t even get reimbursed for parking at the District Court for the preliminary injunction hearing, because we lost the preliminary injunction in that court. Remind me how did the appeal of that loss turn out? And how else would the case have arrived at the Seventh Circuit?

Indeed… it’s the expense side of the ledger where the state really kicks into the other dimension. The state challenges David Sigale’s parking expenses for appearing at the appellate argument, and for meeting with me the night before, because gosh darn it, “the amount is high for Springfield, IL.” The Seventh Circuit is in Chicago. Should David have parked in Springfield and walked?

Likewise, with my hotel. Flying in from Washington, I booked myself for the night at the Hilton down the street from the court. At $239 per night for a standard room plus tax, that’s absolutely the market for an average business hotel in Chicago, and while comfortable, very far from any sort of luxurious experience. But the state wanted me to pay no more than $130 plus tax, or $160, because that’s the state’s maximum rate for its employees’ travel. Well, yeah—the state negotiates very nice rates for its employees. When I was a California Deputy Attorney General, I paid all sorts of ridiculous hotel rates for state travel. But I don’t work for the state of Illinois. Go search downtown Chicago, near the courthouse, for a $130 hotel! When I searched Expedia in responding to the state, only a hostel came in below $130 (at $150 plus tax there was one motel).

Do we get to eat when we travel? The state objected to my airport coffee. They think Sigale and I should have had dinner in downtown Chicago for $8 per person. Lunch at $4 per person. No, that doesn’t include the DeLorean ride to 1935. But I’m a profligate Waster Of The Taxpayers’ Precious Money because I tipped the cab driver on the ride downtown from the airport! And I should not have tipped the waiter either.

Yes, we are litigating over whether I should have given tips to the waitstaff and cab driver. Sigale gave me a ride back to the airport, and I didn’t tip him, so perhaps they have a point. How much will it cost The Taxpayers to fight over the cabbie’s $8.27 tip and the waiter’s $7.53 tip?

How much would it have cost the state to pick up the phone and negotiate with us? That’s right, no negotiations have taken place. The state’s lawyers said they’d negotiate, we gave them our information, and the next thing we know, they tell us to pound sand because we allegedly didn’t prevail.

Even if we get robbed on the fees-on-fees litigation, the state will likely wind up paying more money than it would have had they just written us a check at the start. I realize some people might think that this is how the game is played… that we should submit some inflated wacky demand for a bajillion dollars, the state then hires Scrooge McDuck to lowball us, and the judge splits the baby. No. Most of these disputes are settled easily–in McDonald, for example, once the “didn’t prevail” shenanigans concluded, we received 90 cents on the dollar. And we don’t pad our claims. If the other side wants to be ridiculous, that’s on them.

Which brings me to the Moore fee saga’s most recent filing. We’ve saved the taxpayers’ Second Amendment rights from their counsel. But the taxpayers shouldn’t underwrite this type of misconduct, which calls out for some response.

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Not That Kind of Argument

If I had a dollar for every time I’d heard that someone’s offspring would make a great lawyer because “she drives me nuts with all her arguing, she just argues all the time,” I’d have a free latte just this week. I do like latte. But the “let’s send the obnoxious kid to law school” thing is grating.

I’m never sure how to respond. The exasperated parent is obviously looking for some encouragement, a silver lining in a clouded relationship. He wants validation, not, well… more arguing. And who am I to crush this parent’s dream? They’ll do what they want anyway. But the truth is, notwithstanding the adversarial nature of our legal system and the disputatious character of television lawyers, one cannot counsel Snowflake to pursue a legal career simply because she just slammed her bedroom door in dad’s face. It’s just not a useful data point.

People, please. It’s not that kind of “argument.” I don’t know many successful attorneys who are argumentative (in the classic sense of, someone who likes to pick disputes, as opposed to the incorrect definition often employed, someone whose opinions or beliefs differ from one’s own). The goal is persuasion, whether we want something in court from a judge or jury, or whether we want something from the other side. In neither circumstance do lawyers argue with the decision maker. We argue for or against outcomes, not with or against people. If an attorney finds herself arguing with the decision maker, it’s probably best to stop and reevaluate. Arguing for the sake of argument is pointless, unless the unprofessional and usually ineffective point is simply to harass one’s adversary.

We’re not professional teenagers, the annoying implication of Exasperated Dad’s prediction. Does Snowflake like to solve problems? Does she care passionately about the Constitution, or the Employee Retirement Income Security Act of 1974, or putting stickers on documents? Did she make a persuasive and coherent, even if unsuccessful, argument for the extended curfew/extra cookie? Perhaps dad deserved to have the door slammed in his face because he’s lame, but lawyers must respond constructively to adverse developments and cope with unwelcome information, including information about one’s career path that challenges preconceived notions. That ability, not a penchant for bickering, is a better predictor of success in the law if not in most fields.

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Drinking on the Bench and Other Tales of Judge-Lawyer Speech

Judges and lawyers are in the business of communicating, but it’s often news when they communicate directly about each other. While judges are relatively well-positioned to critique attorneys, and vice versa, doing so may raise difficult issues.

Finally-disbarred attorney Stephen Yagman helped illuminate the issues surrounding lawyer-on-judge speech by supplying an amazing example of the practice. Hollywood would never conjure a character such as Yagman–audiences wouldn’t suspend disbelief. In this installment, Yagman sought to disqualify the federal judge presiding over his pro se lawsuit, as related in Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995).

Central District of California Judge William Keller, assigned to hear the disqualification motion, sanctioned Yagman in the course of those proceedings, prompting Yagman to publicly accuse Keller of anti-Semitism and of being “drunk on the bench.” Southern California’s legal paper of record, the Los Angeles Daily Journal, had the good sense not to print the latter allegation. But it did run Yagman’s ad seeking to contact attorneys whom Keller had either sanctioned or threatened to sanction.

Unsatisfied with trashing the judge to reporters and targeting him with newspaper ads, Yagman extended his criticism in a letter to Prentice Hall, publisher of the Almanac of the Federal Judiciary:

It is an understatement to characterize the Judge as “the worst judge in the central district.” It would be fairer to say that he is ignorant, dishonest, ill-tempered, and a bully, and probably is one of the worst judges in the United States. If television cameras ever were permitted in his courtroom, the other federal judges in the Country would be so embarrassed by this buffoon that they would run for cover. One might believe that some of the reason for this sub-standard human is the recent acrimonious divorce through which he recently went: but talking to attorneys who knew him years ago indicates that, if anything, he has mellowed. One other comment: his girlfriend …, like the Judge, is a right-wing fanatic.

Apparently, Yagman cc’d Judge Keller on that letter. Another lawyer testified that Yagman confessed his campaign against Judge Keller was intended to force the judge’s recusal from Yagman’s cases.

Per Judge Kozinski, the Ninth Circuit reversed Yagman’s two-year suspension. A veritable hero of the First Amendment, Yagman was just expressing his opinion for the most part. That bit about the judge being “dishonest” was hyperbole, or perhaps referred to intellectual dishonesty rather than corruption. And while claiming a federal judge is “drunk on the bench” might appear to be a serious factual allegation, well, hey, the disciplinary committee didn’t prove that Judge Keller wasn’t drunk on the bench.

Whatever the merits of this analysis, my true appreciation of this opinion lies in that it allowed Yagman to continue practicing and thus, to pursue Rippey v. Dopp, my first trial in the summer of 1997. As a noob lawyer in California’s Department of Justice, I could not have received better experience than second-chairing this horrendous, tragic, but ultimately meritless suicide-by-cop case. I had the honor of assisting one of the best of the best, fellow Deputy Attorney General Ken Lake, who did the heavy lifting. And in Yagman, we faced the best of the worst.

For all the great experience that case provided, Yagman remains by far the most unpleasant opposing counsel I’ve come across. I freely confess my respect for his intellect, skill, and desire to keep police authority in check. There was a kernel of the admirable in his mission. But some of Yagman’s cases were deservingly impossible, and his personal behavior was often appalling. His fans might see Yagman as the champion of the oppressed and the downtrodden, though likely few of them were, like Dean Chemerinsky – a subject of Yagman’s eventual 6th Amendment ineffective assistance of counsel claim – ever on his receiving end.

But this isn’t about my opinion of Yagman. Some day, perhaps, I’ll write more about Rippey, where justice ultimately prevailed. For now, it’s enough to note that attacking a federal judge as “drunk on the bench” didn’t seem to hurt Yagman’s career (criminal convictions would eventually do that), nor his reputation among those already favorably disposed to him. Certainly no observer of the Rippey trial would have questioned the judge’s impartiality.

And that’s the episode’s most remarkable aspect. First Amendment or not, most of us lawyers reflexively cringe at the idea of saying anything remotely critical of the judges presiding over our cases. Oh, sure, we have our opinions, and they’re not always rosy. But to be a lawyer is to know when to shut up, and very little good can come of criticizing judges, no matter how outrageous their decisions or conduct may at times appear. It’s not just the vast power disparity between judges and lawyers. Language extending beyond the perception of legal error risks eroding the respect necessary for the system to function. Lawyers might be relatively well-positioned to know what’s wrong with the bench, but expressing such sentiments can be more than personally and professionally harmful. I’ve never seen a judge drunk on the bench (or anywhere else), but if I do, I’ll probably keep it to myself.

Does this reticence to criticize work both ways? It should, and usually, it does. Judges aren’t shy about enforcing decorum or rejecting stupid arguments. But negative judicial commentary about the lawyers appearing before them is rare for a reason, especially outside the courtroom. Aware that lawyers never feel liberated to talk back, judges may not wish to appear bullies. They may feel their authority and reputation among their peers diminished by personal spats with lawyers. They understand that collegiality should be maintained so that bench and bar may pursue their common enterprise.

And perhaps most importantly, for judges weighing critiques about counsel, comes the interest in maintaining the appearance of impartiality. Last week, Federal Circuit Chief Judge Randall Rader announced that he would step down from the position of Chief Judge three years ahead of schedule (although Rader is not resigning his lifetime appointment as a federal judge). Rader’s decision appears to be an act of contrition for having sent a questionable email to an attorney that had appeared before him. According to the Wall Street Journal,

In the email, Judge Rader said he and other court colleagues had been impressed by [the lawyer’s] skill as an appellate lawyer, according to people familiar with the details of the judge’s note. The judge encouraged the lawyer to share the endorsement with others, a tool that could be used to impress clients, people familiar with the matter said.

Judge Rader apologized, and acknowledged that his words “crossed lines established for the purpose of maintaining a judicial process whose integrity must remain beyond question.” There’s a line, perhaps not always bright, between critiquing counsel’s performance in a case and actively promoting or subverting a lawyer’s practice. The former comes with the territory; the latter suggests that cases might be decided on something other than their merit—an impression judges are understandably loathe to create.

A related concern is reflected in Judge Rader’s admission that he “never expected that email to emerge as it did.” When creating precedent, judges are mindful of the special power that their words convey. But their off-the-bench speech can also be repurposed in unintended ways. Before discussing the attorneys who appear before them, judges might double check the accuracy of any factual assertions, and reflect upon what, exactly, they hope to achieve with their words (a good idea for anyone in any event) as well as how, once released, their words might be utilized by others.

To be continued…

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New Course at Georgetown Law

Georgetown has graduated some decent lawyers over the years. If you’re studying law in those hallowed halls, won’t you please consider signing up for my new class in the Spring ’15 semester, Strategic Litigation for Social Change:

J.D. Seminar 1287 (cross-listed) | 2 credit hours

This seminar addresses practical considerations and legal doctrines relevant to strategic civil rights litigation. Regardless of one’s political orientation or the substantive issue at hand, targeting legislative enactments or other governmental customs, practices, and policies for judicial termination involves a particular, common set of legal doctrines and best practices. Students will study issue and client selection, media relations, fee shifting, the basics of Section 1983 and the Declaratory Judgment Act, and governmental avoidance doctrines (immunities, abstention, mootness), among other topics. For the paper portion of the grade, students will create a case challenging a particular statute, with a complaint and accompanying summary judgment brief. In lieu of the assigned problem, students are encouraged to identify and challenge their own allegedly unconstitutional law, so long as it has not yet been subjected to litigation. Attendance and participation will also factor into the grade.

Recommended: Prior or concurrent enrollment in Constitutional Law II and Federal Courts and the Federal System.

No, I won’t teach you how to get away with murder (h/t Scott Greenfield). As it says right at the top here, I only deal in reality-based litigation.

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