Coronavirus Concerns (I Presume) Lead to Postponing of Fourth Circuit Oral Argument Next Week

This is an argument in which I was going to participate on behalf of amicus Cato Institute, in Billups v. City of Charleston, which is how I just learned about this. At least two other cases scheduled for the same day have been rescheduled, too (including the CASA de Maryland, Inc. v. Trump Public Charge Rule case), though others apparently have not been.

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Coronavirus Concerns (I Presume) Lead to Postponing of Fourth Circuit Oral Argument Next Week

This is an argument in which I was going to participate on behalf of amicus Cato Institute, in Billups v. City of Charleston, which is how I just learned about this. At least two other cases scheduled for the same day have been rescheduled, too (including the CASA de Maryland, Inc. v. Trump Public Charge Rule case), though others apparently have not been.

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Quarterbacking a Card Game

From Irizarry v. Hayes, a New York trial court decision refusing to void a mediated divorce agreement:

To vacate this agreement and void the mediated plan agreed to years ago, would usher the court into the true role of a Monday morning quarterback, reshuffling the monetary cards in this long voided marriage, re-opening the personal and psychological wounds that accompany divorce disputes and foisting new costs into a marriage that ended two years ago. As judges know, it costs almost nothing to begin a marriage — a low fee license and a gratuity to the officiant (maybe). The court system should seek ways to shrink the cost of ending a failed marriage. Mediation, as in this case, is one of those preferred ways.

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Quarterbacking a Card Game

From Irizarry v. Hayes, a New York trial court decision refusing to void a mediated divorce agreement:

To vacate this agreement and void the mediated plan agreed to years ago, would usher the court into the true role of a Monday morning quarterback, reshuffling the monetary cards in this long voided marriage, re-opening the personal and psychological wounds that accompany divorce disputes and foisting new costs into a marriage that ended two years ago. As judges know, it costs almost nothing to begin a marriage — a low fee license and a gratuity to the officiant (maybe). The court system should seek ways to shrink the cost of ending a failed marriage. Mediation, as in this case, is one of those preferred ways.

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New Jersey Security Guard Arrested for Gun He Has Permit to Carry

Every petty excuse for the police to bother you is a loose trigger for further injustice. Roosevelt Twyne, a 25-year-old security guard who is African American, is learning this in New Jersey.

Pulled over last month on his way home from work in Roselle Park, New Jersey, for having tinted windows on his car, Twyne informed the police he had his work-related weapon in his possession. The police arrested him, claiming he was carrying both an illegally transported gun and illegal hollow-point ammunition.

According to Twyne’s lawyer, Evan Nappen, Twyne had a permit to carry a gun in the state. Nappen insists that permit should have covered the alleged illegality of transporting the weapon in his car. Nappen further points out the brand of ammunition in the car—supplied by his employer—is specifically listed as legal on a New Jersey State Police website.

Nappen said in a phone interview yesterday that the police have come around about the ammunition, and those particular charges have been dropped.

However, Twyne still faces potential prosecution for the weapon charge.

The police insisted to Fox News that “Twyne was charged after it was determined that he was not in compliance with the specifications of the law pertaining to the lawful transportation of his firearm. These charges were approved by the Union County Prosecutor’s Office.”

The police said in a statement provided to a local TV station that Twyne had his weapon loaded and holstered on his person. Nappen says in an email that a legal requirement to “have a firearm cased and unloaded” under New Jersey statute 2c:39(6g) applies only if one is “transporting by way of exemption, which is inapplicable here. Mr. Twyne was transporting by way of his Chapter 58 NJ Permit to Carry a Handgun, not by way of inapplicable exemptions.”

Twyne is being charged under 2C:39-9(d), which states that:

Any person who manufactures, causes to be manufactured, transports, ships, sells or disposes of any weapon, including gravity knives, switchblade knives, ballistic knives, daggers, dirks, stilettos, billies, blackjacks, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings, or, except as otherwise provided in subsection i. of this section, in the case of firearms if he is not licensed or registered to do so as provided in chapter 58, is guilty of a crime of the fourth degree.

(Emphasis mine.)

Nappen insists that Twyne “has a NJ Permit to Carry a Handgun issued pursuant to Chapter 58” which applies to both his job and getting to and from his job, and does not require the gun to be cased and unloaded as it would if he were merely carrying under a set of statutory exemptions to the laws about possessing handguns.

Jersey gun laws are “very confusing,” Nappen grants, and it “is very difficult for citizens, police, and even prosecutors” to figure out what is and isn’t legal (not much is) because of “stupid gun laws.”

Nappen, who specializes in the state’s gun laws, insists he understands things the police and prosecutors bedeviling Twyne do not. “The government is attempting to conflate legally irrelevant requirements under exemptions that do not apply” to a permit-holder like Twyne.

New Jersey’s carry laws can be tough to figure out for Americans doing their best to comply and have led to serious disruption to the lives of people who have done no harm. Two notorious cases are indicative of this: Shaneen Allen, an African American single mother of two who was naive enough to think being licensed to carry in her native Pennsylvania would protect her from Jersey cops (and who only evaded jail after huge public outcry), and Brian Aitken, who was sentenced to seven years for having a legally owned gun unloaded and locked in his trunk because it was legally owned in a state that wasn’t New Jersey (he thankfully had his sentence commuted after a few months by Gov. Chris Christie).

Twyne has been charged with a 4th-degree felony, which could come with 18 months in prison.

Whether or not Twyne is vindicated by the law as Nappen insists he should and will be, this arrest—caused by a wicked combination of the police’s nearly unlimited power to harass drivers and New Jersey’s convoluted gun laws—has already seriously harmed Twyne, causing him to be suspended from his job, as he told Fox News. “It’s a little hard right now trying to find something to keep me on my feet.” He currently has a court date scheduled for April 2.

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New Jersey Security Guard Arrested for Gun He Has Permit to Carry

Every petty excuse for the police to bother you is a loose trigger for further injustice. Roosevelt Twyne, a 25-year-old security guard who is African American, is learning this in New Jersey.

Pulled over last month on his way home from work in Roselle Park, New Jersey, for having tinted windows on his car, Twyne informed the police he had his work-related weapon in his possession. The police arrested him, claiming he was carrying both an illegally transported gun and illegal hollow-point ammunition.

According to Twyne’s lawyer, Evan Nappen, Twyne had a permit to carry a gun in the state. Nappen insists that permit should have covered the alleged illegality of transporting the weapon in his car. Nappan further points out the brand of ammunition in the car—supplied by his employer—is specifically listed as legal on a New Jersey State Police website.

Nappen said in a phone interview yesterday that the police have come around about the ammunition, and those particular charges have been dropped.

However, Twyne still faces potential prosecution for the weapon charge.

The police insisted to Fox News that “Twyne was charged after it was determined that he was not in compliance with the specifications of the law pertaining to the lawful transportation of his firearm. These charges were approved by the Union County Prosecutor’s Office.”

The police said in a statement provided to a local TV station that Twyne had his weapon loaded and holstered on his person. Nappen says in an email that a legal requirement to “have a firearm cased and unloaded” under New Jersey statute 2c:39(6g) applies only if one is “transporting by way of exemption, which is inapplicable here. Mr. Twyne was transporting by way of his Chapter 58 NJ Permit to Carry a Handgun, not by way of inapplicable exemptions.”

Twyne is being charged under 2C:39-9(d), which states that:

Any person who manufactures, causes to be manufactured, transports, ships, sells or disposes of any weapon, including gravity knives, switchblade knives, ballistic knives, daggers, dirks, stilettos, billies, blackjacks, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings, or, except as otherwise provided in subsection i. of this section, in the case of firearms if he is not licensed or registered to do so as provided in chapter 58, is guilty of a crime of the fourth degree.

(Emphasis mine.)

Nappen insists that Twyne “has a NJ Permit to Carry a Handgun issued pursuant to Chapter 58” which applies to both his job and getting to and from his job, and does not require the gun to be cased and unloaded as it would if he were merely carrying under a set of statutory exemptions to the laws about possessing handguns.

Jersey gun laws are “very confusing,” Nappen grants, and it “is very difficult for citizens, police, and even prosecutors” to figure out what is and isn’t legal (not much is) because of “stupid gun laws.”

Nappen, who specializes in the state’s gun laws, insists he understands things the police and prosecutors bedeviling Twyne do not. “The government is attempting to conflate legally irrelevant requirements under exemptions that do not apply” to a permit-holder like Twyne.

New Jersey’s carry laws can be tough to figure out for Americans doing their best to comply and have led to serious disruption to the lives of people who have done no harm. Two notorious cases are indicative of this: Shaneen Allen, an African American single mother of two who was naive enough to think being licensed to carry in her native Pennsylvania would protect her from Jersey cops (and who only evaded jail after huge public outcry), and Brian Aitken, who was sentenced to seven years for having a legally owned gun unloaded and locked in his trunk because it was legally owned in a state that wasn’t New Jersey (he thankfully had his sentence commuted after a few months by Gov. Chris Christie).

Twyne has been charged with a 4th-degree felony, which would come with 18 months in prison.

Whether or not Twyne is vindicated by the law as Nappen insists he should and will be, this arrest—caused by a wicked combination of the police’s nearly unlimited power to harass drivers and New Jersey’s convoluted gun laws—has already seriously harmed Twyne, causing him to be suspended from his job, as he told Fox News. “It’s a little hard right now trying to find something to keep me on my feet.” He currently has a court date scheduled for April 2.

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Judge Lynn Adelman (D.Wi) on CJ Roberts’s Confirmation Hearing: “Masterpiece of Disingenuousness”

I had never heard of U.S. District Court Judge Lynn Adelman. He was appointed to the District of Wisconsin in 1997. According to the ever-reliable Wikipedia, Judge Adelman found that Wisconsin’s Voter ID law violated the 14th Amendment, and was considered for a Seventh Circuit vacancy.

Alas, now I am aware of Judge Adelman. He posted to SSRN a forthcoming article, titled “The Roberts Court’s Assault on Democracy.” It will be published in the Harvard Law & Policy Review, the official law review of the American Constitution Society.

Here is the introduction:

By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.

It has become en vogue for federal to criticize President Trump is such terms. But I don’t recall seeing a lower-court judge charge the Chief Justice with being “disingenuous” or “misleading.” Indeed, Judge Adelman has come close to accusing Roberts of committing perjury–a crime, and an impeachable offense.

Judge Adelman also offers partisan criticisms of President Trump:

The Republican Party has been particularly afflicted by the concentration of wealth at the top.25 The party’s policy agenda is now determined by a small and unrepresentative number of individuals and corporations. President Trump’s behavior after being elected illustrates this. Although he ran as a populist and promised to promote policies that benefited ordinary people, upon taking office Trump almost entirely reversed course. He appointed mostly wealthy far-right Republicans and their supporters to his cabinet and to key positions in his administration and supported health care legislation drafted by conservative Republican legislators that, had it passed, would have been extremely harmful to millions of low and moderate income Americans.

Trump also supported a tax bill that provided big benefits to the country’s largest corporations and wealthiest individuals and virtually nothing to the majority of American taxpayers. Trump also promised to offer a major infrastructure program to provide well-paying jobs to American workers and modernize the country’s transportation system. However, he has not followed through on this promise largely because it would require a considerable increase in domestic spending which influential Republicans oppose.

Because Congressional Republicans depend on a relatively small number of wealthy donors to stay in power, their major public policy goal is to do whatever makes such donors happy. And Republican donors are mostly interested in tax cuts, fewer regulations and less spending on anything benefiting ordinary Americans.31 And Trump, who has few commitments to substantive policies of any sort, found it much easier to ally himself with Congressional Republicans than to make an effort to enact policies beneficial to the general public.32 To follow through on his populist campaign promises would have required him to engage in the difficult and unpleasant work of bucking his own party. Thus, while Trump’s temperament is that of an autocrat, he is disinclined to buck the wealthy individuals and corporations who control his party.

This screed could have come from a Bernie stump speech. It has no place in a publication by a federal judge.

I’ve skimmed the rest of the article. There is nothing new or original here. Judge Adelman merely repeats the same tropes we have heard for a decade. Citizens United. Shelby County. Conservative Legal Movement. And so on. The dagger note states that Judge Adelman “bears full responsibility for any errors.” I agree.

I’m reminded of Judge Posner’s apt criticism of Justice Breyer’s book: “A Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Ditto for District Court judges.

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Judge Lynn Adelman (D.Wi) on CJ Roberts’s Confirmation Hearing: “Masterpiece of Disingenuousness”

I had never heard of U.S. District Court Judge Lynn Adelman. He was appointed to the District of Wisconsin in 1997. According to the ever-reliable Wikipedia, Judge Adelman found that Wisconsin’s Voter ID law violated the 14th Amendment, and was considered for a Seventh Circuit vacancy.

Alas, now I am aware of Judge Adelman. He posted to SSRN a forthcoming article, titled “The Roberts Court’s Assault on Democracy.” It will be published in the Harvard Law & Policy Review, the official law review of the American Constitution Society.

Here is the introduction:

By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.

It has become en vogue for federal to criticize President Trump is such terms. But I don’t recall seeing a lower-court judge charge the Chief Justice with being “disingenuous” or “misleading.” Indeed, Judge Adelman has come close to accusing Roberts of committing perjury–a crime, and an impeachable offense.

Judge Adelman also offers partisan criticisms of President Trump:

The Republican Party has been particularly afflicted by the concentration of wealth at the top.25 The party’s policy agenda is now determined by a small and unrepresentative number of individuals and corporations. President Trump’s behavior after being elected illustrates this. Although he ran as a populist and promised to promote policies that benefited ordinary people, upon taking office Trump almost entirely reversed course. He appointed mostly wealthy far-right Republicans and their supporters to his cabinet and to key positions in his administration and supported health care legislation drafted by conservative Republican legislators that, had it passed, would have been extremely harmful to millions of low and moderate income Americans.

Trump also supported a tax bill that provided big benefits to the country’s largest corporations and wealthiest individuals and virtually nothing to the majority of American taxpayers. Trump also promised to offer a major infrastructure program to provide well-paying jobs to American workers and modernize the country’s transportation system. However, he has not followed through on this promise largely because it would require a considerable increase in domestic spending which influential Republicans oppose.

Because Congressional Republicans depend on a relatively small number of wealthy donors to stay in power, their major public policy goal is to do whatever makes such donors happy. And Republican donors are mostly interested in tax cuts, fewer regulations and less spending on anything benefiting ordinary Americans.31 And Trump, who has few commitments to substantive policies of any sort, found it much easier to ally himself with Congressional Republicans than to make an effort to enact policies beneficial to the general public.32 To follow through on his populist campaign promises would have required him to engage in the difficult and unpleasant work of bucking his own party. Thus, while Trump’s temperament is that of an autocrat, he is disinclined to buck the wealthy individuals and corporations who control his party.

This screed could have come from a Bernie stump speech. It has no place in a publication by a federal judge.

I’ve skimmed the rest of the article. There is nothing new or original here. Judge Adelman merely repeats the same tropes we have heard for a decade. Citizens United. Shelby County. Conservative Legal Movement. And so on. The dagger note states that Judge Adelman “bears full responsibility for any errors.” I agree.

I’m reminded of Judge Posner’s apt criticism of Justice Breyer’s book: “A Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Ditto for District Court judges.

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A Wrongfully Convicted Kansas Man Can Now Sue the Corrupt Cop Who Framed Him

Kansas man Lamonte McIntyre served 23 years in prison for murders that he did not commit. Last week, a federal judge ruled that McIntyre can proceed with most of the claims in his lawsuit against Wyandotte County, Kansas City, and Roger Golubski, the corrupt police officer who framed him.

McIntyre’s wrongful conviction has been extensively covered by The Kansas City Star, Injustice Watch, and The New York Times. McIntyre was also represented by the Midwest Innocence Project, a group that works to exonerate the wrongfully convicted through DNA testing.

On April 15, 1994, Doniel Quinn and Donald Ewing were murdered while they sat in a parked Cadillac in Kansas City. One of the officers who responded to the scene was Roger Golubski. At least two retired officers, former officer Ruby Ellington and former detective Timothy Maskill, attested in separate affidavits that a corrupt Golubski had a thing for sleeping with “black, drug-addicted prostitutes” and other vulnerable black women in the area. Many in the department were well aware of his indiscretions.

Among those solicited by Golubski was Rosie McIntyre, McIntyre’s mom. Rosie alleged that Golubski, who had a history of harassing the women who turned him down, retaliated against her rejection by framing her son for murder. After Rosie declined to have a continuous sexual relationship with Golubski, according to her own affidavit, he created false reports to implicate McIntyre.

Despite no DNA tying McIntyre to the scene and despite having no motivation to kill—McIntyre did not even know Quinn and Ewing—he was arrested at age 17 and convicted of homicide.

The state’s faulty case was based on two eyewitnesses, both of whom failed to place McIntyre at the scene prior to the trial. One woman later alleged that she not only told the prosecutor McIntyre wasn’t the shooter, but that the prosecutor threatened to take her children away if she did not testify in court. Other witnesses similarly denied that McIntyre was the shooter, but this information was never shared with his trial lawyer. The one witness who identified McIntyre later recanted, saying Golubski coerced her.

Golubski, who went on to work for the Edwardsville Police Department, retired in 2016.

There were other missteps. Terra Morehead, then-assistant prosecutor of Wyandotte County had an undisclosed romantic relationship with J. Dexter Burdette, the judge in McIntyre’s trial. Advocates for McIntyre later used this relationship to argue bias in his case.

In 2017, advocates presented their case for exoneration before retired Judge Edward Bouker. During the hearing, District Attorney Mark Dupree not only recommended that McIntyre receive a new trial but dismissed the charges against him.

After spending 23 long years in prison, serving two life sentences for murders that he did not commit, McIntyre was finally able to go home in October 2017. Last month, he was awarded $1.5 million in compensation and a certificate of innocence from Shawnee County District Judge Teresa L. Watson.

Last Tuesday, McIntyre was granted the opportunity to pursue further relief.

U.S. District Judge Kathryn H. Vratil allowed most of the claims in McIntyre’s civil suit against Wyandotte County, Kansas City, Roger Golubski, and other officers who helped botch the case to stand. The defendants had previously filed a motion to dismiss the lawsuit.

The claims upheld by Vratil’s ruling included malicious prosecution, evidence fabrication, and Brady violations, which occurs when a prosecutor suppresses exculpatory evidence. McIntyre will be able to proceed with his suit.

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A Wrongfully Convicted Kansas Man Can Now Sue the Corrupt Cop Who Framed Him

Kansas man Lamonte McIntyre served 23 years in prison for murders that he did not commit. Last week, a federal judge ruled that McIntyre can proceed with most of the claims in his lawsuit against Wyandotte County, Kansas City, and Roger Golubski, the corrupt police officer who framed him.

McIntyre’s wrongful conviction has been extensively covered by The Kansas City Star, Injustice Watch, and The New York Times. McIntyre was also represented by the Midwest Innocence Project, a group that works to exonerate the wrongfully convicted through DNA testing.

On April 15, 1994, Doniel Quinn and Donald Ewing were murdered while they sat in a parked Cadillac in Kansas City. One of the officers who responded to the scene was Roger Golubski. At least two retired officers, former officer Ruby Ellington and former detective Timothy Maskill, attested in separate affidavits that a corrupt Golubski had a thing for sleeping with “black, drug-addicted prostitutes” and other vulnerable black women in the area. Many in the department were well aware of his indiscretions.

Among those solicited by Golubski was Rosie McIntyre, McIntyre’s mom. Rosie alleged that Golubski, who had a history of harassing the women who turned him down, retaliated against her rejection by framing her son for murder. After Rosie declined to have a continuous sexual relationship with Golubski, according to her own affidavit, he created false reports to implicate McIntyre.

Despite no DNA tying McIntyre to the scene and despite having no motivation to kill—McIntyre did not even know Quinn and Ewing—he was arrested at age 17 and convicted of homicide.

The state’s faulty case was based on two eyewitnesses, both of whom failed to place McIntyre at the scene prior to the trial. One woman later alleged that she not only told the prosecutor McIntyre wasn’t the shooter, but that the prosecutor threatened to take her children away if she did not testify in court. Other witnesses similarly denied that McIntyre was the shooter, but this information was never shared with his trial lawyer. The one witness who identified McIntyre later recanted, saying Golubski coerced her.

Golubski, who went on to work for the Edwardsville Police Department, retired in 2016.

There were other missteps. Terra Morehead, then-assistant prosecutor of Wyandotte County had an undisclosed romantic relationship with J. Dexter Burdette, the judge in McIntyre’s trial. Advocates for McIntyre later used this relationship to argue bias in his case.

In 2017, advocates presented their case for exoneration before retired Judge Edward Bouker. During the hearing, District Attorney Mark Dupree not only recommended that McIntyre receive a new trial but dismissed the charges against him.

After spending 23 long years in prison, serving two life sentences for murders that he did not commit, McIntyre was finally able to go home in October 2017. Last month, he was awarded $1.5 million in compensation and a certificate of innocence from Shawnee County District Judge Teresa L. Watson.

Last Tuesday, McIntyre was granted the opportunity to pursue further relief.

U.S. District Judge Kathryn H. Vratil allowed most of the claims in McIntyre’s civil suit against Wyandotte County, Kansas City, Roger Golubski, and other officers who helped botch the case to stand. The defendants had previously filed a motion to dismiss the lawsuit.

The claims upheld by Vratil’s ruling included malicious prosecution, evidence fabrication, and Brady violations, which occurs when a prosecutor suppresses exculpatory evidence. McIntyre will be able to proceed with his suit.

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