U.S. Supreme Court
U.S. v. Rahimi
No. 22-915 6/21/24
Issue:
Does a statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm violate the Second Amendment?
Holding:
No. “When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” The 8–1 Court concluded that the federal restraining order statute, 18 U.S.C. §922(g)(8), “fits comfortably within this tradition.” Read opinion.
Concurrence (Sotomayor, J. joined by Kagan, J.):
“Although I continue to believe that [New York State Rifle & Pistol Assn., Inc. v.] Bruen[, 597 U.S. 1 (2022),] was wrongly decided … I join the Court’s opinion applying that precedent to uphold 18 U.S.C. §922(g)(8). The Court today emphasizes that a challenged regulation ‘must comport with the principles underlying the Second Amendment,’ but need not have a precise historical match. I agree. I write separately to highlight why the Court’s interpretation of Bruen, and not the dissent’s, is the right one. In short, the Court’s interpretation permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exactly as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.”
Concurrence (Gorsuch, J.):
The concurrence concluded that the petitioner did not meet the burden of proving the federal protective order statute was unconstitutional on its face.
Concurrence (Kavanaugh, J.):
“The Framers of the Constitution and Bill of Rights wisely sought the best of both worlds: democratic self-government and the protection of individual rights against excesses of that form of government. In justiciable cases, this Court determines whether a democratically enacted law or other government action infringes on individual rights guaranteed by the Constitution. When performing that Article III duty, the Court does not implement its own policy judgments about, for example, free speech or gun regulation. Rather, the Court interprets and applies the Constitution by examining text, pre-ratification and post-ratification history, and precedent. The Court’s opinion today does just that, and I join it in full.”
Concurrence (Barrett, J.):
“Despite its unqualified text, the Second Amendment is not absolute. It codified a pre-existing right, and pre-existing limits on that right are part and parcel of it.”
Concurrence (Jackson, J.):
“I write separately because we now have two years’ worth of post-Bruen cases under our belts, and the experiences of courts applying its history-and-tradition test should bear on our assessment of the workability of that legal standard. This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today’s effort to clear up ‘misunderstandings’ … is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.”
Dissent (Thomas, J.):
“The Government peddles a modern version of the governmental authority that led to those historical evils. Its theory would allow federal majoritarian interests to determine who can and cannot exercise their constitutional rights. While Congress cannot revive disarmament laws based on race, one can easily imagine a world where political minorities or those with disfavored cultural views are deemed the next ‘dangers’ to society. Thankfully, the Constitution prohibits such laws. … This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution.”
Commentary:
Throughout the majority opinion, the Court repeats the idea that the Government (or the State of Texas) should have the ability to restrict the right to carry a firearm by those who pose a credible threat to the physical safety of another. That category applies neatly to an individual who is subject to a domestic violence restraining order. Thus, prosecutions under §46.04(c) and the corresponding provision under §46.02(a-7) should survive any Second Amendment challenge based upon this decision. It could be presumed that the same would be the case for a prosecution under §§46.02(a)(2)(B) and 46.04(b)—involving prior violent convictions. That may be as far as this decision goes. However, if the application of Bruen over the past couple of years is any indication, this decision in Rahimi will not be the last word. There is a significant amount of federal litigation over the constitutionality of the various federal gun provisions. Local prosecutors should watch for any challenges to prosecutions under §46.04(a)—felon in possession of a firearm—in which the defendant was previously convicted only of a nonviolent felony. There is a large amount of previous caselaw that upholds the constitutionality of §46.04(a), and for now, prosecutors should continue to rely upon that prior caselaw. Only time will tell how much Bruen has really changed the Second Amendment landscape.
Smith v. Arizona
No. 22-899 6/21/24
Issue:
Can one lab analyst testify about an absent analyst’s test findings in stating her conclusions about the results without violating the Confrontation Clause?
Holding:
No. “A State may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable, and the defendant has had a prior chance to cross-examine her. Neither may the State introduce those statements through a surrogate analyst who did not participate in their creation. And nothing changes if the surrogate—as in this case—presents the out-of-court statements as the basis for his expert opinion. Those statements … come into evidence for their truth—because only if true can they provide a reason to credit the substitute expert. So a defendant has the right to cross-examine the person who made them.” Read opinion.
Concurrence (Thomas, J.):
“[A] question remains whether that analyst’s statements were testimonial. I agree with the Court that, because the courts below did not consider this question, we should remand. … But, I disagree with the Court’s suggestion that the Arizona Court of Appeals should answer that question by looking to each statement’s ‘primary purpose.’”
Concurrence (Gorsuch, J.):
The concurrence wrote that the majority should not have addressed when an absent analyst’s statement might qualify as testimonial. “It was not part of the question presented for our review, nor was it the focus of the decision below.”
Concurrence (Alito, J., joined by Roberts, C.J.):
“Today, the Court inflicts a needless, unwarranted, and crippling wound on modern evidence law. There was a time when expert witnesses were required to express their opinions as responses to hypothetical questions. But eventually, this highly artificial, awkward, confusing, and abuse-laden form of testimony earned virtually unanimous condemnation. More than a century ago, judges, evidence scholars, and legal reform associations began to recommend that courts abandon the required use of hypotheticals, and more than 50 years ago, the Federal Rules of Evidence did so. Now, however, the Court proclaims that a prosecution expert will frequently violate the Confrontation Clause when he testifies in strict compliance with the Federal Rules of Evidence and similar modern state rules. Instead, the Court suggests that such experts revert to the form that was buried a half-century ago. There is no good reason for this radical change.”
Commentary:
In this case, the Court holds that a testifying expert cannot repeat the statement of a non-testifying expert, even if the statement of the non-testifying expert provides the basis for the testifying expert’s opinion. That is already the law in Texas. See Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015). That testifying expert can still rely upon such information in developing his own opinion, however. Rule 703 allows experts to rely upon inadmissible evidence in developing their own opinions, and that was reaffirmed by the Court of Criminal Appeals a couple of weeks ago in Null v. State. The somewhat new ground that Smith v. Arizona sets forth is the two-part test in determining whether an out-of-court statement violates a defendant’s confrontation rights: 1) whether the out-of-court statement is hearsay—meaning a statement that is being offered for the truth of the matter asserted, and 2) whether the out-of-court statement is testimonial. The court’s decision makes clear that most statements offered by the prosecution in this context are going to be offered for the truth of the matter asserted. This decision did not rule on whether the statements involved in this case were testimonial for the purposes of the Confrontation Clause, but it did give some examples of statements by an expert that might not be testimonial. Based upon how the caselaw has developed since Crawford v. Washington, however, most statements made by experts during the analysis of a piece of evidence collected in a criminal investigation will be testimonial. But here is your chance to put on your thinking caps and make the argument that a particular expert’s isolated statement is not testimonial.
Diaz v. United States
No. 23-14 6/20/24
Issue:
Is expert testimony that “most people” in a group have a particular mental state considered an opinion about the defendant that violates F.R.Evid. 704(b)?
Holding:
No. “An expert’s conclusion that ‘most people’ in a group have a particular mental state is not an opinion about ‘the defendant’ and thus does not violate Rule 704(b). Because a testifying Homeland Security agent did not express an opinion about whether the defendant herself knowingly transported methamphetamine and instead testified about his knowledge of “most drug couriers,” his testimony did not violate Rule 704(b). Read opinion.
Concurrence (Jackson, J.):
“I write separately to emphasize that, as Congress designed it, Rule 704(b) is party agnostic. Neither the Government nor the defense can call an expert to offer her opinion about whether the defendant had or did not have a particular mental state at the time of the offense.”
Dissent (Gorsuch, J., joined by Sotomayor and Kagan, JJ.):
“Federal Rule of Evidence 704(b) prohibits an expert witness from offering an opinion ‘about whether the defendant did or did not have [the] mental state’ needed to convict her of a crime. ‘Those matters,’ the Rule instructs, ‘are for the trier of fact alone.’ Following the government’s lead, the Court today carves a new path around that command. There’s no Rule 704(b) problem, the Court holds, as long as the government’s expert limits himself to testifying that most people like the defendant have the mental state required to secure a conviction. The upshot? The government comes away with a powerful new tool in its pocket. Prosecutors can now put an expert on the stand—someone who apparently has the convenient ability to read minds—and let him hold forth on what ‘most’ people like the defendant think when they commit a legally proscribed act. Then, the government need do no more than urge the jury to find that the defendant is like ‘most’ people and convict. What authority exists for allowing that kind of charade in federal criminal trials is anybody’s guess, but certainly it cannot be found in Rule 704.”
Commentary:
Texas does not have a version of Rule 704(b) that mirrors the Federal Rules of Evidence. In fact, Rule 704 of the Texas Rules of Evidence states that an expert’s opinion is not objectionable merely because it embraces an ultimate issue—such as a defendant’s mental state. Thus, under appropriate circumstances, Texas does allow an expert witness to testify about a criminal defendant’s mental state—and not just in insanity or death penalty cases.
Erlinger v. United States
No. 23-370 6/21/24
Issue:
Must a jury unanimously decide whether a defendant had qualifying convictions for offenses committed on different occasions, making him eligible for an enhanced sentence under the Armed Career Criminal Act (18 U.S.C. §924(e)(1))?
Holding:
Yes. The Fifth and Sixth Amendments require a unanimous jury (rather than a judge) to make a determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions under the ACCA. Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), the majority confirmed its prior holdings that the U.S. Constitution ordinarily requires a unanimous jury to find beyond a reasonable doubt any fact that increases a defendant’s exposure to punishment. Read opinion.
Concurrence (Roberts, C.J.):
“I join the opinion of the Court because I agree that under the Fifth and Sixth Amendments, a defendant is entitled to have a jury determine beyond a reasonable doubt whether his predicate offenses were committed on different occasions for purposes of the Armed Career Criminal Act. But as JUSTICE KAVANAUGH explains, violations of that right are subject to harmless error review.” The concurrence urged the lower appellate court to consider whether the error in this case was harmless.
Concurrence (Thomas, J.):
The concurrence would have revisited the Court’s prior holding in Almendarez-Torres v. United States, 570 U.S. 99 (1998), which created a narrow exception that allows a judge to make findings on the fact of a prior conviction, even if that fact increases a defendant’s punishment.
Dissent (Kavanaugh, J., joined by Alito, J. and Jackson, J. in part):
“In my view, this Court’s precedents establish that a judge may make the different-occasions determination. Because the Court today concludes that only a jury may make the different-occasions determination, I respectfully dissent.”
Dissent (Jackson, J.):
“The bottom line is this: Unlike juries, judges have the competency, wherewithal, and flexibility to assess facts related to defendants’ past crimes and to handle, in a balanced way, the various practical problems that reliance on that kind of evidence raises. All things considered, then, committing the factfinding exercise related to ACCA’s occasions inquiry to judges is by far more efficient, and probably more fair to participants in the justice system overall, than requiring juries to make that finding. For this reason, too, this Court should have continued to allow judges to do what they have always done and what they do best—make factual findings related to a defendant’s criminal history, as Apprendi seems to permit, through its acceptance of Almendarez-Torres.”
Commentary:
The decisions of the United States Supreme Court in Apprendi and Alleyne have been used in the past to require a jury finding on certain “enhancement” provisions that typically do not involve prior convictions. If those provisions raised the maximum punishment or raise the mandatory-minimum punishment, then—in a jury trial—the jury is required to make findings on that enhancement provision just like any other element of the offense. There has been an exception—based upon the Court’s decision in Almendarez-Torres—that simple findings of a prior conviction can be found by a judge, even in a jury trial. Note that in its opinion, the Court spoke very negatively about its decision in Almendarez-Torres. The Court explained in this case that the findings with regard to the defendant’s prior convictions were not so simple but were often very fact-bound. Therefore, according to the Court, the jury—in a jury trial—would be required to make a finding on this particular enhancement, in addition to the regular elements of the charged offense. This ruling raises a question as to whether this federal sentencing decision can be applied (or should be applied) to require a jury—in a jury trial—to find the facts that support a finding that a defendant is a habitual offender under §12.42(d) of the Penal Code: that the defendant has “previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final. …” Prosecutors should be ready to litigate this issue and watch for its application to other similar cases.
5th U.S. Circuit Court of Appeals
Vota, et al. v. Ogg
No. 22-50732 6/20/24
Issue:
Is an elected district attorney entitled to dismissal from a variety of voting-rights claims brought under the Election Protection and Integrity Act of 2021 based on sovereign immunity and the 11th Amendment?
Holding:
Yes. To be subject to suit, a state official must have some connection with enforcement of the law being challenged. Under Ex parte Young, 209 U.S. 123 (1908): 1) there must be more than a general duty to see that the laws of the state are implemented; 2) the state official must have demonstrated a willingness to exercise that duty; and 3) the state official must have, through her conduct, compelled or constrained people to obey the challenged law. The Court found that while the decision in State v. Stephens, 663 S.W.3d 45 (Tex. Crim. App. 2021) stated that “only local district attorneys have independent authority to prosecute criminal offenses under the Election Code,” this is nothing more than part of the prosecutor’s general duty to implement the laws of the state. “Reading Stephens’s ‘specific duty’ language as satisfying Ex parte Young’s connection requirement would make district attorneys the proper defendants in challenges to all criminal statutes categorically. Our precedent demands more from a state statute.” Because there is no statute commanding the district attorney to prosecute Texas Election Code violations, and the district attorney did not express willingness to exercise that duty, she is not a proper defendant in this suit. “In summary, jurisdiction exists to consider whether Ogg is immune from certain claims even though immunity is abrogated for others.” Read opinion.
Commentary:
This decision is not about the constitutionality or validity of the various criminal offenses that were created and/or enhanced by the legislation. Rather, this interlocutory appeal has resulted in a decision that is solely about the plaintiffs’ ability to sue District Attorney Kim Ogg. There are also lawsuits filed against other state officials, but this particular interlocutory appeal dealt only with DA Ogg. The question regarding the ability of DA Ogg to assert sovereign immunity is quite complicated because such immunity cannot apply to all the plaintiffs’ claims (sovereign immunity cannot be asserted in a Voting Right Act lawsuit, for example). The court dealt with that preliminary question before ever getting to the implications from the decision of the Court of Criminal Appeals in Stevens (page 19). The sovereign immunity question then turned on whether Stevens created an “authority” or a “duty” for Ogg. The court of appeals also considered important Ogg’s offered stipulation that she had no intention of enforcing the new or enhanced criminal offenses. The absence of a “duty” on the part of Ogg was largely fatal to the plaintiffs’ claims that she could not assert sovereign immunity. This decision is only one in an interlocutory appeal on preliminary issues regarding partial sovereign immunity. Expect more decisions in this rather complicated case.
Texas Court of Criminal Appeals
Ex parte Reeder
No. WR-93,824-01 6/26/24
Issue:
Does serving deferred adjudication community supervision constitute being convicted of a felony for purposes of the unlawful possession of firearm statute (Penal Code §46.04)?
Holding:
No. “The Unlawful Possession of Firearm statute is not ambiguous. The state’s text demonstrates an attendant-circumstance element of having been convicted of a felony.” Because neither the Penal Code nor the Code of Criminal Procedure define “conviction,” the Court used the ordinary meaning of the word and concluded that conviction always involves an adjudication of guilt. The Court concluded that the defendant’s plea was involuntary because all parties misunderstood the law, allowed the defendant to withdraw his plea, and set aside his conviction. Read opinion.
Concurrence (Keller, P.J.):
“The problem in this case is what constitutional theory to grant relief on. It does not seem to neatly fit recognized theories, but it seems evident that Applicant ought to get relief, which might be why the Court raises a novel involuntary-plea claim. But I agree with Judge Yeary [in the dissent] that an ‘absolute innocence’ claim would suffice, where we would dispense with the requirement of newly discovered or newly available evidence.” Read concurrence.
Dissent (Yeary, J.):
The dissent agreed that the defendant cannot lawfully have been convicted for being a convicted felon in possession of a weapon based on a deferred adjudication. “I disagree, however, that his conviction must be set aside on the ground that his guilty plea was involuntary. And while I might ultimately agree that Applicant is entitled to relief, I cannot come to that conclusion without remanding the case to the convicting court for a second time.” Read dissent.
Commentary:
Based upon how the felon-in-possession statute is written, it should not come as a surprise to prosecutors that a deferred-adjudication community-supervision cannot serve as the prior felony for this offense. There are situations in which deferred adjudication community supervision can be considered a prior conviction, but in those situations, the controlling statute expressly provides that these deferred community supervision cases can be considered prior convictions. That is not the case with the felon-in-possession statute.
Turley v. State
Nos. PD-0262-20 & -0263-20 6-26-24
Issue:
Must a child knowingly engage in an act of prostitution for the person who sold sex with her to be guilty of compelling prostitution under the 2015 version of Penal Code §43.05?
Holding:
Yes. The Court concluded the evidence was legally insufficient to support the compelling prostitution conviction because the child victim had been drugged and was asleep prior to the planned sexual encounter; and because the event was a law-enforcement sting operation, no sexual conduct actually occurred. However, the Court found the evidence supported finding that the defendant (the child victim’s father) had the intent to commit the charged offenses and did acts amounting to more than mere preparation; therefore, it reformed his conviction to attempted compelling prostitution and attempted trafficking of a child. Read opinion.
Concurrence (Newell, J., joined by Walker, J.):
The concurrence noted that the legislature has since changed the offense of promotion of prostitution involving a child so that it no longer requires proof that the child actually engaged in prostitution. “However, the offense of trafficking of persons for child prostitution is potentially more problematic. While the statute allows for a first-degree felony conviction for human trafficking of a child based upon the predicate offenses of promotion of prostitution and compelling prostitution, the operative text of that statute arguably requires a showing that the child engaged in the forbidden conduct. … At the very least, the question of whether a child victim can be a victim of promoting prostitution without engaging in sexual conduct is one that would need to be addressed in the future. I defer to the Legislature on whether this construction of the statute warrants amendment.” Read concurrence.
Dissent (Yeary, J.):
Instead of reforming the sentences, the dissent would remand the case to allow briefing on whether reformation is permissible under Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). Read dissent.
Commentary:
As noted by Judge Newell’s concurring opinion, prosecutors should be able to charge this conduct based upon the now-existing promotion-of-prostitution offense. But also noted by the concurring opinion, there are still problems with how these offenses (especially human trafficking based on a prostitution offense) are set forth in the controlling statutes. The Legislature may wish to take notice of this case. Because the majority reformed the defendant’s convictions to change them to attempt offenses and remanded for a new punishment hearing, the defendant will still be punished for his outrageous crimes.