August 9, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Collins v. Dallas Leadership Foundation, 22-10094, appeal from N.D. Tex.
    • Clement, J. (Clement, Elrod, Willett), prisoner suit
    • Affirming dismissal of state prisoner’s sec. 1983 claims arising from prison officials’ actions regarding his parole hearing, as running afoul of the Heck rule barring sec. 1983 claims that are essentially challenges to the term of confinement. The Court rejected the plaintiff’s argument that he was only challenging the parole hearing procedures and not the parole outcome.
  • U.S. v. Northington, 22-60431, appeal from N.D. Miss.
    • Elrod, J. (Clement, Elrod, Willett), criminal, sentencing
    • Affirming 360-month sentence for conviction of production of child pornography, upholding sentence enhancement for prior conviction for fondling a child.
  • U.S. v. Daniels, 22-60596, appeal from S.D. Miss.
    • Smith, J. (Smith, Higginson, Willett), Higginson, J., concurring; criminal, Second Amendment
    • Reversing defendant’s conviction under 18 U.S.C. § 922(g)(3), which bars an individual from possessing a firearm if he is an “unlawful user” of a controlled substance, holding that the statute is unconstitutional under the Second Amendment as applied.
    • As summarized by the Court, “Patrick Daniels is one such ‘unlawful user’—he admitted to smoking marihuana multiple days per month. But the government presented no evidence that he was intoxicated at the time of arrest, nor did it identify when he last had used marihuana. Still, based on his confession to regular usage, a jury convicted Daniels of violating § 922(g)(3). The question is whether Daniels’s conviction violates his right to bear arms. The answer depends on whether § 922(g)(3) is consistent with our nation’s ‘historical tradition of firearm regulation.’ N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022). It is a close and deeply challenging question. Throughout American history, laws have regulated the combination of guns and intoxicating substances. But at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another. A few states banned carrying a weapon while actively under the influence, but those statutes did not emerge until well after the Civil War. Section 922(g)(3)—the first federal law of its kind—was not enacted until 1968, nearly two centuries after the Second Amendment was adopted. In short, our history and tradition may support some limits on an intoxicated person’s right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage. Nor do more generalized traditions of disarming dangerous persons support this restriction on nonviolent drug users. As applied to Daniels, then, § 922(g)(3) violates the Second Amendment.”
    • Judge Higginson concurred. “To be clear, I fully concur in the majority’s reasoning—albeit with the caveat that the Supreme Court has granted certiorari in United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, No. 22-915, _ S. Ct. _, 2023 WL 4278450, at *1 (June 30, 2023)—as I believe that we have applied Bruen as well as possible in evaluating the constitutionality of § 922(g)(3). I write separately to highlight what has become increasingly apparent—that courts, operating in good faith, are struggling at every stage of the Bruen inquiry. Those struggles encompass numerous, often dispositive, difficult questions, including, but not limited to the following. First, who, and what conduct, is covered by the Second Amendment? Second, how does the Government demonstrate a regulatory ‘tradition’? This inquiry implicates questions about how many states must have historically addressed an issue, or how many laws must have been passed—or some combination of the two—for a historical practice to constitute a ‘tradition,’ see Bruen, 142 S. Ct. at 2142 (‘[W]e doubt that three colonial regulations could suffice to show a tradition of public-carry regulation.’), as well as the related issue of enforcement. Third, what is the operative time period for such regulations—1791 or 1868?—and to what extent does post-ratification practice count? See id. at 2162-63 (Barrett, J., concurring). Fourth—but again, this list is not exhaustive—how are courts to differentiate between ‘general societal problem[s]’ that have ‘persisted since the 18th century,’ and those that ‘implicat[e] unprecedented societal concerns or dramatic technological changes,’ id. at 2131-32, and, moreover, between ‘historical analogue[s]’ as distinct from ‘historical twin[s]’? Id. at 2133. More foundationally, courts are laboring to give meaning to the Bruen requirement of ‘historical inquiry.’ Must the Government provide expert testimony to prevail, or could a district court independently seek such evidence? And in the event such evidence is lacking in the record below, may courts of appeal collect their own history and make up for a party’s earlier failing? Going even further, should courts undertake discovery and evidentiary testing of historical evidence to perceive the existence of a sufficient regulatory tradition? And, in making that conclusion, does the constitutionality of any given provision rise or fall with the strength of the historical record as to a specific case, or will rulings be treated as establishing a single historical truth?” (Footnotes omitted).

Unpublished

  • Rogers v. Smith, 22-30352, appeal from E.D. La.
    • per curiam (Clement, Elrod, Willett), qualified immunity
    • Affirming denial of qualified immunity summary judgment.
  • U.S. v. Scott, 22-30814, appeal from W.D. La.
    • per curiam (Willett, Duncan, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Farani v. Evanston Insurance Co., 22-60450, appeal from S.D. Miss.
    • per curiam (Higginbotham, Graves, Douglas), insurance
    • Affirming summary judgment that insurer owed coverage for claims arising from automobile accident.
  • U.S. v. Randle, 23-60041, appeal from S.D. Miss.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal, sentencing
    • Affirming 12-month sentence on revocation of supervised release.