5th Circuit Court of Appeals
U.S. v. Rahimi
No. 21-11001 2/2/23
Issue:
Does the federal statute prohibiting the possession of firearms by someone subject to a domestic violence restraining order violate the Second Amendment?
Holding:
Yes. In light of the U.S. Supreme Court’s decision in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111 (2022), 18 U.S.C. §922(g)(8) is unconstitutional. “Doubtless, 18 U.S.C. §922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of §922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right.” Read opinion.
Concurrence (Ho, C.J.):
“I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another.”
Commentary:
The defendant in this case was the subject of a domestic violence restraining order and was thereby prohibited from possessing any firearm or ammunition. The court of appeals could not find any historical precedent in which a similar type of defendant had been prohibited from possessing a firearm. That absence of historical precedent is what rendered the federal statute to be unconstitutional. It should be expected that the United States Supreme Court will wish to review this decision, and it should be noted that this decision is contrary to a recent federal district court decision in another circuit. See United States v. Kays, No. CR-22-40-D, 2022 WL 3718519 (W.D. Okla., Aug. 29, 2022) (10th Circuit). In the meantime, Texas prosecutors should take note of this decision, especially if attempting to prosecute a defendant under Section 46.04(c) of the Penal Code or its related offense in Section 46.02(a-7)(3). It should also be noted that this decision does not directly impact the validity of offenses that prohibit firearm possession for those convicted of misdemeanor domestic violence convictions. Federal courts have recently rejected Second Amendment challenges to that particular federal statute. See United States v. Nutter, No. 2:21-cr-00142, 2022 WL 3718518 (S.D. W. Va., Aug. 29, 2022); United States v. Jackson, No. CR-22-59-D, 2022 WL 2582504 (W.D. Okla., Aug. 19, 2022). Federal courts have also recently rejected Second Amendment challenges to statutes that prohibit firearm possession for convicted felons. See, e.g., United States v. Melendrez-Machado, No. EP-22-CR-00634-FM, 2022 WL 17684319 (W.D. Tex., Oct. 18, 2022); United States v. Charles, No. MO: 22-CR-00154-DC, 2022 WL 4913900 (W.D. Tex., Oct. 3, 2022). Regardless, any prosecutor faced with a Second Amendment argument should read this decision, as well as the decision of the Supreme Court in Bruen.
Texas Supreme Court
Brown v. City of Houston, et al.
No. 22-0256 2/3/23
Issue:
May a person who has received funds from the state under the Tim Cole Act for wrongful conviction maintain a lawsuit involving the same subject matter against any governmental entities or employees?
Holding:
No. Answering a certified question from the 5th Circuit, the Texas Supreme Court concluded that a person cannot maintain a separately filed suit on the same subject matter after receiving funds pursuant to The Tim Cole Act (Tex. Civil Practice & Remedies Code §103.153(b)). “Brown’s acceptance of Tim Cole Act compensation means that he has agreed not to ‘bring’ a lawsuit in any forum against governmental entities or employees that involves the same subject matter as his Tim Cole Act claim. ‘Bringing’ an action in this context entails maintaining it.” Read opinion.
Commentary:
The court’s holding turned largely upon the legislative preference for dealing with these claims through an administrative process of compensation by the State Comptroller, rather than through litigation, where issues of sovereign immunity might prevail. That provided the basis for the court’s answer to the Fifth Circuit’s certified question.
Court of Criminal of Appeals
In re City of Lubbock
No. WR-93,137-01 2/8/2023
Issue:
Does a trial court in a criminal proceeding have authority to hold an ex parte hearing and enter an ex parte order compelling a third party to produce documents without notice to the prosecutor representing the State?
Holding:
No. Ex parte proceedings require express authorization. The trial court did not have express authorization to consider the ex parte motion in this case or to enter the ex parte order. Therefore, the court conditionally granted the City of Lubbock’s petition for a writ of mandamus. Read opinion.
Concurrence (Keller, P.J.):
“If the Court intends to relax our standard for mandamus, one would expect an explicit acknowledgment of that intent, along with reasons for making the change. The Court’s opinion includes neither. There is no need to change our mandamus jurisprudence in this case. As the Court correctly explains, there is a default rule that ex parte communications are impermissible, and any exception to that rule must be expressly provided by some legal source. With no legal source providing an exception in the circumstances here, the trial judge’s conduct of holding an ex parte hearing was indisputably impermissible.” Read opinion.
Commentary:
This case involved the attempt by a criminal defendant to get a trial judge to issue an order to the local police department (the third party in this case) to turn over certain documents to the defendant without the involvement or knowledge of the local district attorney. In that respect, the hearing at which this was discussed was an ex parte hearing involving ex parte communications. The defendant did not want to issue a subpoena or make a Michael Morton request because he claimed that it would reveal his trial strategy to the local district attorney. To the extent that any defendant will attempt such a strategy, this decision should be quite helpful. With this decision, a defendant cannot use “trial strategy” or the work-product privilege to prevent the local district attorney from knowing what evidence he wishes to obtain. This decision does not impact the validity of proper ex parte requests, such as a defense request for expert assistance required by Ake v. Oklahoma. This decision also does not impact the validity of in camera actions taken by a trial judge (such as to review information to determine if it should be disclosed to the defense) because a trial judge takes an in camera action with full knowledge of both parties.
Texas Court of Appeals
Ex parte Ortiz
No. 04-22-00260-CR 2/1/2023
Issue:
Can a defendant be considered “restrained” within the meaning of Code of Criminal Procedure Chapter 11 if he is not in physical custody within the United States?
Holding:
Yes. Physical custody or presence in the United States is not dispositive of the issue of restraint. “Instead, we hold [the defendant] is ‘restrained’ because he is subject to the trial court’s threats of bond forfeiture and a warrant for his arrest if he does not appear for trial as directed.” Read opinion.
Commentary:
This is an Operation Lone Star case, in which the defendant was in Mexico at the time that he filed his application for a pre-trial writ of habeas corpus. The defendant did not prevail on his application, however, as the court of appeals held that the defendant’s Sixth Amendment and Fifth Amendment claims were not cognizable by way of a pre-trial writ of habeas corpus because they were largely akin to a speedy-trial claim that required further record development. This decision is very thorough on both the “restraint” and “cognizability” issues, so it should be helpful for prosecutors confronted with such claims by way of a pre-trial writ of habeas corpus (especially those prosecutors handling Operation Lone Star cases). But be warned. These issues can get quite complex. So read slowly and carefully.