Bloglikes - Society https://www.bloglikes.com/c/society/archive/2019-01-16 en-US Tue, 28 Jan 2020 12:43:22 +0000 Sat, 06 Apr 2013 00:00:00 +0000 FeedWriter Red-Flag Law Gun Confiscations In Maryland http://feedproxy.google.com/~r/captainsjournal/~3/pkZy0MPi9uU/ The Washington Post:

Maryland courts have seized guns from 148 people in the three months since the state enacted a law designed to take weapons from people who are danger to themselves or others.

Four of the gun owners posed “significant threats” to schools, an official told state lawmakers Tuesday.

Montgomery County Sheriff Darren M. Popkin (D), who has helped train police officers across the state about the “red-flag” law, said he could not provide details about the gun seizures — including those that could have led to school shootings — because of a confidentiality rule.

But, Popkin told the House Judiciary Committee, “these orders . . . are saving lives.”

As I’ve said before, the communist project is nearly complete.

Say, I was wondering, if the department of pre-crime is any good, why haven’t we seen a precipitous reduction in the number of spree crimes?  Surely, half of their predictions for the future should be accurate, right?  We require that of weather forecasters, don’t we?

Prophets, all of them.  Surely.  It also comes to mind that God required false prophets be killed in the O.T. (Deuteronomy 13:13).  I wonder how many of these forecasters would be willing to put their life on the line for their fortune telling and witch-doctoring?

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Wed, 16 Jan 2019 22:38:16 +0000 BlogLikes - Find Most Popular Blogs Maryland Washington Post Military Gun Control Popkin House Judiciary Committee Darren M Popkin
Border Rancher: “We’ve Found Prayer Rugs Out Here” http://feedproxy.google.com/~r/captainsjournal/~3/ZV1gJFy6Kro/ Washington Examiner:

R anchers and farmers near the U.S.-Mexico border have been finding prayer rugs on their properties in recent months, according to one rancher who asked to remain anonymous for fear of retaliation by cartels who move the individuals.

The mats are pieces of carpet that those of the Muslim faith kneel on as they worship.

“There’s a lot of people coming in not just from Mexico,” the rancher said. “People, the general public, just don’t get the terrorist threats of that. That’s what’s really scary. You don’t know what’s coming across. We’ve found prayer rugs out here. It’s unreal. It’s not just Mexican nationals that are coming across.”

[ … ]

Border Patrol and its parent agency, Customs and Border Protection, did not respond to multiple interview requests. But CBP’s Arizona region issued a statement on Twitter Wednesday that said agents had arrested people from across the world over the past five days.

Did you catch the bolded part? (Bold mine).

But doesn’t it all make you feel warm inside knowing that they “Come for love?”  David Codrea has related thoughts, surely correct.

On a related note, the Middle East Forum sent a note out saying this.

The Middle East Forum has learned that New Jersey Governor Phil Murphy will conduct a State of the State town hall event at the Islamic Center of Passaic County (ICPC) in northern New Jersey tonight—a mosque with a long history of pro-Hamas leadership.

The ICPC’s current imam, Mohammad Qatanani, has terrorist connections galore: His own lawyer admits that he was a member of the student chapter of the Muslim Brotherhood in Jordan, and the N.J. Office of Homeland Security and Preparedness identifies Qatanani as a Hamas supporter. Qatanani is currently fighting deportation on the grounds that he lied to federal officials about his Israeli conviction for membership Hamas.

This is the man who recently signed six gun control bills into law.  He’s willing to buddy-up with terrorists, but he wants to disarm peaceable men and women.

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Wed, 16 Jan 2019 22:26:34 +0000 BlogLikes - Find Most Popular Blogs Mexico Immigration Military New Jersey Arizona Hamas CBP Jordan Customs Muslim Brotherhood Border Patrol Border Protection Washington Examiner David Codrea Phil Murphy Islamists Islamic Facism Middle East Forum ICPC Border War Islamic Center of Passaic County ICPC Mohammad Qatanani N J Office of Homeland Security Qatanani
Lowered Standards In The Green Berets http://feedproxy.google.com/~r/captainsjournal/~3/roGtnTOfaAQ/ Breitbart:

Two Army Green Berets are fighting for their military careers after being associated with an anonymous email that accused their commanders of lowering standards to enable more soldiers — particularly female — to graduate from its prestigious Q-course.

The anonymous email, signed, “A concerned Green Beret,” accused the leaders of the school of “moral cowardice” for lowering the standards, and weakening instructors’ ability to discipline students as they look to get further through the pipeline.

“[The school] has devolved into a cesspool of toxic, exploitive, biased and self-serving senior officers who are bolstered by submissive, sycophantic, and just-as-culpable enlisted leaders,” the email said. “They have doggedly succeeded in two things; furthering their careers, and ensuring that Special Forces [are] more prolific but dangerously less capable than ever before.”

One of the specific complaints was that the Special Forces Qualification Course (SFQC), commonly referred to as “Q-course,” was restructured so that there were “no physical barriers to earning the coveted Green Beret.”

[ … ]

The Marine Corps, which was the most resistant, has made recent headlines for integrating a female platoon into a previously all-male battalion at Parris Island, S.C., and for its first female Marine officer graduating from the Scout Sniper Unit Leaders Course.

As I’ve said before, the communist project is nearly complete.  And the country’s leadership was and continues to be a willing and culpable partner.

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Wed, 16 Jan 2019 22:13:37 +0000 BlogLikes - Find Most Popular Blogs Politics Military Army Marine Corps Breitbart Parris Island Two Army Green Berets Special Forces Qualification Course SFQC
Argument analysis: Justices have strong views about removal of class actions http://feedproxy.google.com/~r/scotusblog/pFXs/~3/KtB506HRUW8/

Yesterday morning’s argument in Home Depot U.S.A. v. Jackson was a notable one, as Justice Elena Kagan brought a strong view of the case to the bench and proceeded to dominate the argument.

The case involves the removal of litigation from state court to federal court. Under Section 1441 (and predecessor provisions dating back to the 18th century), “the defendant or the defendants” generally has a right to remove “any civil action brought in a State court of which the [federal] district courts have original jurisdiction.” In 2005, responding to concerns that state courts have been unduly receptive to class actions, Congress adopted the Class Action Fairness Act (often called the CAFA), which included a variety of provisions designed to make it easier for class-action defendants to remove those cases to federal court. One provision, in Section 1332, granted original federal jurisdiction over most class actions seeking a recovery of more than $5 million. Another provision, in Section 1453, provided that “any defendant” can remove a “class action” as defined in Section 1332.

Together, those provisions make it clear that if a plaintiff initiates a large class action in state court, any of the defendants can remove the case to federal court. Home Depot presents an odd twist on that framework. In this case, the initial litigation was between Citibank and respondent George Jackson: Citibank sued Jackson in state court to collect a debt arising out of a purchase Jackson made that was connected to Home Depot. All agree that the Citibank action could not have been brought in (or removed to) federal court. The next step, though, is what makes the case interesting: Jackson responded by asserting both defensive claims against Citibank and a class action against Home Depot, alleging a variety of consumer-protection claims. Citibank then withdrew its claim against Jackson, leaving Home Depot alone in the litigation against Jackson. Home Depot responded by filing a petition seeking to remove the matter to federal court under the CAFA. The lower courts rejected Home Depot’s petition and concluded the case should return to state court.

As I explained in my preview, the parties for the most part briefed the case on the question whether Home Depot qualifies as a “defendant” under Section 1441 and 1453, with Home Depot arguing that as a literal matter it plainly is a defendant and Jackson arguing that the history of Section 1441 shows that the term “defendant” refers only to the party against whom an action initially is filed.

Kagan came to the bench with a somewhat different take on the matter, appearing strongly predisposed to rule against Home Depot because the initial complaint in this case (filed by Citibank) did not institute a “civil action” over which federal courts would “have original jurisdiction.” For her, the key to the case isn’t whether Home Depot is or is not a defendant, it is whether the “civil action” at issue here could have been brought in federal court – and it plainly could not have been. That view squarely collided with the presentation on behalf of Home Depot, represented by William Barnette.

William P. Barnette for petitioner (Art Lien)

Early on Kagan pointed out that Section “1441(a), which is the principal removal statute, says that a civil action, not claims, but a civil action can be removed where the district courts have original jurisdiction. And what I’ve always taken that to mean is that to look for original jurisdiction, you look to the plaintiff’s complaint, the original plaintiff.” She could agree with Barnette that:

[Y]our claim might be under the original jurisdiction of the district courts if … that had started the lawsuit. But that didn’t start the lawsuit. The lawsuit, the civil action, was started by a claim that’s completely non-federal in nature. And you look to the original claim to decide whether the courts have original jurisdiction, don’t you?

Justices Sonia Sotomayor and Stephen Breyer saw the case much the same way. Sotomayor, for example, asked Barnette whether his case would “fall apart if we don’t accept your claim-by-claim analysis? You approach this claim by claim. I’m not quite sure how we can … do that since the statute speaks about a civil action and it talks about removal of an action, not a removal of a claim.”

Breyer emphasized Section 1332, which “says the term ‘class action’ means any civil action … filed under Rule 23 [or analogous state law]. Did [Jackson], the one who sued you, … did he file a civil action?” When Barnette suggested that Jackson had filed such an action, Breyer disagreed forcefully: “I don’t think he did, did he? Where does it say he did? …. What he did was he filed a …. [counter]claim.”

Barnette continued to press his point that Home Depot should be regarded as a defendant, but Breyer kept taking the discussion back to the filing of the complaint against Home Depot by the defendant on the original complaint: “Where does it say that … when a defendant files a class action, … that is an action filed, a civil action, because civil actions are usually filed by plaintiffs.” Indeed, when Barnette persistently redirected the discussion back to his baseline position, the Breyer seemed to lose patience, commenting that he was only asking “a simple question” and asking: “Why are you still not giving direct answers?”

By the end of the discussion, Breyer seemed as settled in his view as Kagan, explaining at one point: “Now I’m over with Justice Kagan. A civil action is an action brought by a plaintiff. And, therefore, since this isn’t a civil action … filed under Rule 23 [or analogous state law], they can’t take advantage of 1453 because they don’t fit within the definition.”

Kagan summarized the discussion near the end of Barnette’s presentation, explaining:

Mr. Barnette, under your theory, every time one party joins another party, we would have a new civil action. … But we don’t. We only have one civil action, and the civil action includes a multitude of claims, or can, between and among a wide range of parties. But it’s only one civil action. …

[Y]ou’re suggesting that we should look at this case as though the original claim never occurred and we should pretend that the claim started with the original defendant. But the case did not start with the original defendant. The civil action started with the original plaintiff, who brought a claim against a defendant who then brought a claim against you.

That is not to say that Paul Bland’s argument on behalf of Jackson was entirely stress-free. Chief Justice John Roberts and Justice Samuel Alito probed closely on the textual support for and policy implications of Bland’s position. When Alito started to press Bland closely, Kagan repeatedly interrupted to explain how she would analyze the problem. At one point, she engaged Alito so directly that he asked Bland whether he “agree[d] with Justice Kagan’s answer to my question.”

F. Paul Bland for respondent (Art Lien)

Bland was reluctant to embrace the position that Kagan had articulated that it is irrelevant whether Home Depot was or was not a defendant because Jackson had not filed a “civil action” against Home Depot. Bland spent much of his argument trying to resist comments by Alito and Justice Brett Kavanaugh suggesting that Home Depot must be accepted as a defendant. Alito, for example, commented at one point that if “we look at the text, we have a reference to the defendant or the defendants. So Home Depot would qualify there, would it not?” When Bland suggested that the traditional understanding of Section 1441 meant that Home Depot was not a defendant, Alito was wholly unpersuaded: “You’re reading things into it. … [I]n the ordinary sense of the term, are they not defendants? …. They are some kind of defendants.”

Alito also seemed to think affirming the decision in this case would fly in the face of Congress’ intent in adopting the CAFA, as he asked Bland rhetorically:

[I]s there any good reason why a claim like this … should not be removable to federal court? … If a claim like this is filed originally in … state court, it can be removed, but if it comes into the state court in this strange sort of back-door way, then it has to stay in state court. You really think that that’s a possible decision Congress would make?

At the end of the day, it is not at all clear from the argument how the court will resolve this one. We should find out by the end of June.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case. The author of this post is not affiliated with the firm.]

Editor’s Note: Analysis based on transcript of oral argument.

The post Argument analysis: Justices have strong views about removal of class actions appeared first on SCOTUSblog.

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Wed, 16 Jan 2019 20:15:13 +0000 BlogLikes - Find Most Popular Blogs Home Depot Featured Law Congress Citibank Jackson Sonia Sotomayor John Roberts Alito Sotomayor Stephen Breyer Breyer Elena Kagan Kagan Samuel Alito Goldstein Russell Barnette George Jackson Merits Cases Brett Kavanaugh CAFA Jackson Home Depot William Barnette William P Barnette Art Lien Early Paul Bland Lien Bland So Home Depot
This Is What Baby Boomers Don’t Understand About the Millennial Job Market https://twentytwowords.com/baby-boomers-dont-understand-millennial-job-market/ ]]> Wed, 16 Jan 2019 19:17:12 +0000 BlogLikes - Find Most Popular Blogs Life Society Gallery Social Issues Baby Boomers Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance (Corrected) http://feedproxy.google.com/~r/scotusblog/pFXs/~3/CWwqVGrlixk/

In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayor’s dissent was joined by Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg and Elena Kagan.

Meanwhile, no justice expressed criticism of the ACCA’s statutory language or structure (something that some, notably Justice Samuel Alito, have done in the past). This is the second ACCA opinion of the term; the opinion in United States v. Stitt back in December was unanimous. Predictions are always risky, but with Justice Antonin Scalia (a repeat critic of the statute) gone, and no court criticism voiced today, perhaps the justices have agreed to silence their previously expressed concerns about the ACCA’s language and application (although the court recently granted review of a third ACCA case, Quarles v. United States).

 How do state law robbery statutes interact with the ACCA?

As I wrote in my preview, this case involves the ACCA’s 15-year mandatory minimum sentence enhancement for certain firearms offenders who have three qualifying felony convictions. The question here was whether a state robbery statute that permits conviction when the defendant uses physical “force sufficient to overcome a victim’s resistance” can constitute a prior conviction for a “violent felony” for purposes of applying the ACCA enhancement.

Denard Stokeling was convicted in 2015 of a federal felon-in-possession violation. If his prior 1997 Florida robbery conviction qualified as a “violent felony” under the ACCA, he was required to be sentenced to a minimum term of 15 years in prison. A district judge concluded that the particular facts of Stokeling’s 1997 robbery “did not justify an enhancement” and sentenced him to seven years. The U.S. Court of Appeals for the 11th Circuit, however, noted that it was error for the district court to examine the particular facts; instead a “categorical” examination of the Florida robbery statute was required. Sotomayor’s dissent yesterday provides as simple an explanation of the “categorical approach” to the ACCA as I’ve ever read: “[T]hat method requires asking whether the least culpable conduct covered by the [state] statute ‘has as an element the use, attempted use, or threatened use of physical force.’” The 11th Circuit concluded in Stokeling’s case that the Florida robbery statute, which requires sufficient force to overcome “resistance by the victim,” sufficed to support the ACCA statutory definition.

Yesterday’s majority affirmed the 11th Circuit’s view. Thomas’ opinion is based largely on his evaluation of the common law’s definition of force sufficient to distinguish robbery from simple theft. Citing 1828 and 1903 treatises, Thomas explains that “common-law authorities frequently used the terms ‘violence’ and ‘force’ interchangeably.” The 1905 treatise stated that when a victim’s “resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance.” Thomas concludes that Congress intended to adopt this common-law concept in the ACCA, and that Florida’s robbery statute is consistent with it. This is true even though Congress in 1986 dropped the word “robbery” from the ACCA; Thomas pointedly notes that the title of that legislation was “Expansion of Predicate Offenses for Armed Career Criminal Penalties.” He adds that somewhere between 31 and 46 states also appear to have adopted this definition, and that Congress as well as the Supreme Court’s ACCA precedents have expressed a desire to accommodate rather than “render inapplicable” the criminal felony statutes of “many States.”

Responding directly to Sotomayor’s dissent, the majority says that its ruling “comports with Johnson v. United States,” a 2010 Scalia decision  finding that mere physical contact was insufficient to meet the “physical force” requirement of the ACCA.  (This Johnson is not the same as Scalia’s 2015 decision in a different Johnson case, which held that a related definitional section of the ACCA was unconstitutionally vague.) Thomas accuses Stokeling (and by clear reference, the dissenters) of “cherry pick[ing] adjectives from parentheticals in” Johnson to support an argument that a “heightened degree of force” is required for the ACCA. He then embraces a definition found in Johnson and endorsed last term in Sessions v. Dimaya: “’[P]hysical force’ [in the ACCA] means ‘force capable of causing physical pain or injury.’” This requires, the majority explains, not “likelihood or probability,” but rather “only potentiality.” The bottom line is that although Johnson held that “common-law battery does not require ‘force capable of causing physical pain or injury,’” robbery does, “even if” the pain or injury that could be caused by the force involved in a robbery might be “minimal.”

At 19 pages, Sotomayor’s dissent is half again as long as the majority opinion. More interesting than the details of her arguments, perhaps, is that the chief justice joined her opinion, while Breyer broke ranks with the more liberal justices to provide the deciding vote.

On the merits, Sotomayor concludes that Congress did not, expressly or necessarily, adopt a common-law “minimal force” definition for robbery in the ACCA. Meanwhile, she argues, Johnson clearly decided that “physical force” meant “violent force.” She criticizes the majority for “parsing cherry-picked adjectives” rather than “looking to how Johnson actually answered th[e] question,” and she includes a long block quote from Johnson in which Scalia used the terms “a substantial degree of force” “great physical force” “strong physical force,” and “active violence.” (Scalia took that last phrase from a decision written by Breyer when he was chief judge of the U.S. Court of Appeals for the 1st Circuit.) Even if “any first-year [law] student” learns that minimal force might constitute sufficient force at common law, Sotomayor argues that Johnson clearly indicated that “a heightened degree of force” is required under the ACCA. In writing the ACCA, Sotomayor contends, Congress did not intend that a mandatory 15-year prison term be applied to “glorified pickpockets.” And she accuses the majority of announcing a “brave new world of textual interpretation” and “bury[ing]” Scalia’s first Johnson opinion.

Conclusion

It is perhaps unsurprising that a relatively conservative court has now twice this term ratified broad ACCA statutory applications that tend to favor the government. Yet as I noted above, the court has granted certiorari in another ACCA case to be argued this term (Quarles) and also a case that seeks to further implement the second Johnson’s constitutional vagueness ruling (United States v. Davis). Quarles involves the common-law versus ACCA definitions as they apply to the details of state burglary statutes, and is a follow-on to Stitt. Meanwhile, the defendant in Davis seeks to apply the 2015 Johnson’s unconstitutionally-vague rationale to a neighboring provision of the federal criminal code that employs a definition of “crime of violence” similar to that in the ACCA. Davis is a follow-on not just to the 2015 Johnson, but also to last term’s Sessions v. Dimaya, in which the court decided 5-4 that the similar definition of “violent felony” in an immigration statute was unconstitutionally vague.

The ACCA currently survives as a somewhat schizophrenic (or to use Sotomayor’s phrase from yesterday, “Janus-faced”) criminal sentencing statute: mandatorily harsh for those to whom it is found to apply, yet unconstitutionally vague for other offenders. Yesterday’s opinion seems to cement a majority view that when the court concludes that common law or modern state law is clear, even if harsh, it will not depart from those definitions for ACCA purposes.

A previous version of this post confused two recent grants of certiorari, Quarles v. United States and United States v. Davis. The post has been revised to correct this error.

* * *

Past cases linked to in this post:

Johnson v. United States, 130 S. Ct. 1265 (2010)
Johnson v. United States, 135 S. Ct. 2551 (2015)
Sessions v. Dimaya, 138 S. Ct. 1204 (2018)

The post Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance (Corrected) appeared first on SCOTUSblog.

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Wed, 16 Jan 2019 19:10:33 +0000 BlogLikes - Find Most Popular Blogs Florida Featured Supreme Court Law Congress United States Davis Johnson Corrections United Thomas Sonia Sotomayor Antonin Scalia John Roberts Scalia U S Court of Appeals Sotomayor Stephen Breyer Breyer Elena Kagan Clarence Thomas Samuel Alito 11th Circuit United States the Supreme Court ACCA Quarles Stitt Merits Cases Dimaya Justices Ruth Bader Ginsburg United States and United States Stokeling Denard Stokeling Davis Quarles
Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance http://feedproxy.google.com/~r/scotusblog/pFXs/~3/CWwqVGrlixk/

In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayor’s dissent was joined by Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg and Elena Kagan.

Meanwhile, no justice expressed criticism of the ACCA’s statutory language or structure (something that some, notably Justice Samuel Alito, have done in the past). This is the second ACCA opinion of the term; the opinion in United States v. Stitt back in December was unanimous. Predictions are always risky, but with Justice Antonin Scalia (a repeat critic of the statute) gone, and no court criticism voiced today, perhaps the justices have agreed to silence their previously expressed concerns about the ACCA’s language and application (although the court recently granted review of a third ACCA case, United States v. Davis).

 How do state law robbery statutes interact with the ACCA?

As I wrote in my preview, this case involves the ACCA’s 15-year mandatory minimum sentence enhancement for certain firearms offenders who have three qualifying felony convictions. The question here was whether a state robbery statute that permits conviction when the defendant uses physical “force sufficient to overcome a victim’s resistance” can constitute a prior conviction for a “violent felony” for purposes of applying the ACCA enhancement.

Denard Stokeling was convicted in 2015 of a federal felon-in-possession violation. If his prior 1997 Florida robbery conviction qualified as a “violent felony” under the ACCA, he was required to be sentenced to a minimum term of 15 years in prison. A district judge concluded that the particular facts of Stokeling’s 1997 robbery “did not justify an enhancement” and sentenced him to seven years. The U.S. Court of Appeals for the 11th Circuit, however, noted that it was error for the district court to examine the particular facts; instead a “categorical” examination of the Florida robbery statute was required. Sotomayor’s dissent yesterday provides as simple an explanation of the “categorical approach” to the ACCA as I’ve ever read: “[T]hat method requires asking whether the least culpable conduct covered by the [state] statute ‘has as an element the use, attempted use, or threatened use of physical force.’” The 11th Circuit concluded in Stokeling’s case that the Florida robbery statute, which requires sufficient force to overcome “resistance by the victim,” sufficed to support the ACCA statutory definition.

Yesterday’s majority affirmed the 11th Circuit’s view. Thomas’ opinion is based largely on his evaluation of the common law’s definition of force sufficient to distinguish robbery from simple theft. Citing 1828 and 1903 treatises, Thomas explains that “common-law authorities frequently used the terms ‘violence’ and ‘force’ interchangeably. The 1905 treatise stated that when a victim’s “resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance.” Thomas concludes that Congress intended to adopt this common-law concept in the ACCA, and that Florida’s robbery statute is consistent with it. This is true even though Congress in 1986 dropped the word “robbery” from the ACCA; Thomas pointedly notes that the title of that legislation was “Expansion of Predicate Offenses for Armed Career Criminal Penalties.” He adds that somewhere between 31 and 46 states also appear to have adopted this definition, and that Congress as well as the Supreme Court’s ACCA precedents have expressed a desire to accommodate rather than “render inapplicable” the criminal felony statutes of “many States.”

Responding directly to Sotomayor’s dissent, the majority says that its ruling “comports with Johnson v. United States,” a 2010 Scalia decision  finding that mere physical contact was insufficient to meet the “physical force” requirement of the ACCA.  (This Johnson is not the same as Scalia’s 2015 decision in a different Johnson case, which held that a related definitional section of the ACCA was unconstitutionally vague.) Thomas accuses Stokeling (and by clear reference, the dissenters) of “cherry pick[ing] adjectives from parentheticals in” Johnson to support an argument that a “heightened degree of force” is required for the ACCA. He then embraces a definition found in Johnson and endorsed last term in Sessions v. Dimaya: “’[P]hysical force’ [in the ACCA] means ‘force capable of causing physical pain or injury.’” This requires, the majority explains, not “likelihood or probability,” but rather “only potentiality.” The bottom line is that although Johnson held that “common-law battery does not require ‘force capable of causing physical pain or injury,’” robbery does, “even if” the pain or injury that could be caused by the force involved in a robbery might be “minimal.”

At 19 pages, Sotomayor’s dissent is half again as long as the majority opinion. More interesting than the details of her arguments, perhaps, is that the chief justice joined her opinion, while Breyer broke ranks with the more liberal justices to provide the deciding vote.

On the merits, Sotomayor concludes that Congress did not, expressly or necessarily, adopt a common-law “minimal force” definition for robbery in the ACCA. Meanwhile, she argues, Johnson clearly decided that “physical force” meant “violent force.” She criticizes the majority for “parsing cherry-picked adjectives” rather than “looking to how Johnson actually answered th[e] question,” and she includes a long block quote from Johnson in which Scalia used the terms “a substantial degree of force” “great physical force” “strong physical force,” and “active violence.” (Scalia took that last phrase from a decision written by Breyer when he was chief judge of the U.S. Court of Appeals for the 1st Circuit.) Even if “any first-year [law] student” learns that minimal force might constitute sufficient force at common law, Sotomayor argues that Johnson clearly indicated that “a heightened degree of force” is required under the ACCA. In writing the ACCA, Sotomayor contends, Congress did not intend that a mandatory 15-year prison term be applied to “glorified pickpockets.” And she accuses the majority of announcing a “brave new world of textual interpretation” and “bury[ing]” Scalia’s first Johnson opinion.

Conclusion

It is perhaps unsurprising that a relatively conservative court has now twice this term ratified broad ACCA statutory applications that tend to favor the government. Yet as I noted above, the court has granted certiorari in another ACCA case to be argued this term. In United States v. Davis, the defendant seeks to apply the 2015 Johnson’s unconstitutionally-vague rationale to a neighboring section of the ACCA definition of “crime of violence.” In light of last term’s result in Sessions v. Dimaya, in which the Supreme Court decided 5-4 that the later Johnson required invalidation of a “violent felony” definition in an immigration statute, Davis could invalidate yet another part of the ACCA.

Thus the ACCA survives as a somewhat schizophrenic (or to use Sotomayor’s phrase from yesterday, “Janus-faced”) criminal sentencing statute: mandatorily harsh for those to whom it is found to apply, yet unconstitutionally vague for other offenders. As I reported about the Stokeling and Stitt arguments (they were argued on the same day), some of the justices expressed a “jaundiced view of the ACCA.” Perhaps Davis will provide a vehicle for further fire. But yesterday’s opinion seems to cement the view that when the court concludes that common law or modern state law is clear, even if harsh, it will not depart from those definitions for ACCA purposes.

* * *

Editor’s Note: Analysis based on transcript of oral argument.

Past cases linked to in this post:

Johnson v. United States, 130 S. Ct. 1265 (2010)

Johnson v. United States, 135 S. Ct. 2551 (2015)

Sessions v. Dimaya, 138 S. Ct. 1204 (2018)

The post Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance appeared first on SCOTUSblog.

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Wed, 16 Jan 2019 19:10:33 +0000 BlogLikes - Find Most Popular Blogs Florida Featured Supreme Court Law Congress United States Davis Johnson Thomas Sonia Sotomayor Antonin Scalia John Roberts Scalia U S Court of Appeals Sotomayor Stephen Breyer Breyer Elena Kagan Clarence Thomas Samuel Alito 11th Circuit United States the Supreme Court ACCA Stitt Merits Cases Dimaya Justices Ruth Bader Ginsburg Stokeling Denard Stokeling In United States
Kirsten Gillibrand’s Biglaw Event — See Also http://feedproxy.google.com/~r/abovethelaw/~3/fgMYwc2lPOU/ Davis Polk's Alumni Support: They're hosting an event for Kirsten Gillibrand. Biglaw's Getting Clever With Perks: It's about more than just money. Now This Is A Great Decision: Judge slams Trump administration's census plans. Speaking Of Good Decisions: Alabama can't protect Confederate monuments. Are Daily Fantasy Sports In Danger? The admin's latest ploy.]]> Wed, 16 Jan 2019 18:00:32 +0000 BlogLikes - Find Most Popular Blogs Law Alabama Kirsten Gillibrand Trump Davis Polk See Also Kirsten Gillibrand Biglaw The Law School Making The Biggest Change To Their Admissions Standards http://feedproxy.google.com/~r/abovethelaw/~3/tTttqjN9cVc/ Wed, 16 Jan 2019 17:32:11 +0000 BlogLikes - Find Most Popular Blogs Law Law Schools Trivia Question of the Day Come See Rothco at the ANME & SHOT Shows! http://rothco.blogspot.com/2019/01/come-see-rothco-at-anme-shot-shows.html
Check it out! Rothco's heading to Las Vegas, Nevada next week for the ANME Expo and the SHOT Show. If you plan on attending either of those shows, be sure to stop by our booths to see all the awesome new gear Rothco has to offer! For a full list of the upcoming event's Rothco will be attending in 2019, visit our website. And be sure to follow us on Facebook and Instagram for live updates during the shows, exclusive behind the scenes photos, brand new gear and much more!
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Self Report Of Bill Inflation Leads To Bar Charges https://lawprofessors.typepad.com/legal_profession/2019/01/the-illinois-administrator-has-filed-a-complaint-alleging-billing-misconduct-by-a-former-kirkland-ellis-associate-in-2011.html [Author: Legal Profession Prof]

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Wed, 16 Jan 2019 17:09:56 +0000 BlogLikes - Find Most Popular Blogs Law Chicago Kirkland Ellis Legal Profession Prof Bar Discipline & Process
A Big Thanks To All Of Our Advertisers http://feedproxy.google.com/~r/abovethelaw/~3/VIiuBMYYg1g/ Wed, 16 Jan 2019 17:02:25 +0000 BlogLikes - Find Most Popular Blogs Law Advertising Shameless Plugs This Is an Ad Thanks to Advertisers Wells Fargo Admits That It Will Remain In A Bad Bank Time Out For 2019 http://feedproxy.google.com/~r/abovethelaw/~3/46ugwIBvruk/wells-fargo-still-in-trouble Wed, 16 Jan 2019 16:30:36 +0000 BlogLikes - Find Most Popular Blogs Money Law America Wells Fargo Fed Biglaw Firm Really Wants People To Know Their Alum Is Running For President http://feedproxy.google.com/~r/abovethelaw/~3/PKseD3-KutU/ Wed, 16 Jan 2019 15:59:18 +0000 BlogLikes - Find Most Popular Blogs Law Kirsten Gillibrand Biglaw Davis Polk This Biglaw Firm’s Getting Behind A Presidential Candidate http://feedproxy.google.com/~r/abovethelaw/~3/PKseD3-KutU/ Wed, 16 Jan 2019 15:59:18 +0000 BlogLikes - Find Most Popular Blogs Law Kirsten Gillibrand Biglaw Davis Polk Presidential Candidate Advocates Providing “Legal Services” http://www.slaw.ca/2019/01/16/advocates-providing-legal-services/ There’s change on the horizon for Manitoba’s legal community, and not everyone is on board with it.

If you’ve ever read my posts here (and I haven’t written in quite a while, so you may not have), you will likely not be surprised to learn that I support the current efforts of Legal Aid Manitoba to seek permission from the Immigration and Refugee Board of Canada (“IRB”) to use trained advocates rather than lawyers to represent asylum-seekers where appropriate to do so.

According to this CBC News report, Legal Aid Manitoba is seeking to have its advocates not only prepare a legal aid application and complete the basis of claim form but also, ultimately, provide representation during the hearing before the IRB. This work would, of course, be supervised by practising lawyers.

This is not necessarily newsworthy. Advocates already do work for Legal Aid Manitoba in other areas of administrative law, representing clients in hearings in the areas of residential tenancies and employment and income assistance.

Furthermore, this change is being sought in the same province in which Law Society of Manitoba’s current strategic plan sets out its intention to explore “giving up the profession’s monopoly over the delivery of legal services.” That exploration is already underway, led by the President’s Special Committee on Delivery of Legal Services.

Increasing reliance upon trained advocates who are not lawyers in a range of areas is a trend that continues to grow. In Manitoba, advocates already provide services akin to legal services in a variety of areas, including workers compensation appeals, automobile injury appeals, employment insurance appeals, traffic tickets and, as noted above, residential tenancies and EIA. One might easily conclude that this ship has already sailed.

Nonetheless, some immigration lawyers in Manitoba are expressing their concerns (here and here, for example), suggesting that only lawyers are capable of providing the degree of expertise required in appearances before the IRB.

Certainly, one cannot argue with the assertion that the consequences for refugee claimants may be dire if their cases are improperly put forward. But one also cannot argue that all lawyers are fully competent to do this work either, as a quick review of various law society discipline records soon reveals.

Meanwhile, at Welcome Place, law students from Robson Hall continue to assist advocates employed by the Manitoba Interfaith Immigration Council in preparing in-country refugee claims. This is the only free service like it in Winnipeg, providing help to those seeking asylum in preparing their claims. According to this Winnipeg Free Press article, the program is:

“…funded entirely by donations with two full-time staff…and relies on University of Manitoba law school volunteers. “The students have been extremely helpful,” said Hagos. “We could not do it without them.””

I have to wonder if there is a significant difference between having law students assist, under the supervision of competent practising lawyers, and having trained advocates do the same work under the supervision of competent practising lawyers? I suggest there is not. The key, in each instance, is working with appropriate and capable supervision. Where that is lacking, the chances of something going wrong will doubtless increase.

Here, Legal Aid Manitoba is looking to implement a creative solution to a gap in access to justice for asylum-seekers in Manitoba. The immigration bar in Manitoba is relatively small, with even fewer lawyers willing to take on refugee work, particularly not on the basis of Legal Aid certificates. Indeed, the concern expressed is not that Legal Aid is proposing to take work from these lawyers, but that the clients’ own interests will be jeopardized by losing a potential basis of appeal, as “…those who aren’t represented by a lawyer and denied refugee protection have a better shot at being granted an appeal — and another hearing — because they can claim they weren’t given a fair shake.”

While this may be true (I don’t profess to any expertise in refugee law), one might instead (or also?) take the view that those who are competently represented in the first instance are less likely to need to appeal, if there is indeed merit to their claim.

Central to all of this discussion is ensuring the protection of the interests of those making claims for asylum, rather than the protection of lawyers’ monopoly on legal services. So far, the voices of those seeking access to justice, and in this case, protection from being returned to their country of origin, have not been heard in this conversation, at least not in the media coverage.

As in every area of law in which there are gaps in access to justice, the search for solutions must include thoughtful consideration of the needs of those facing barriers. While sometimes these will overlap with the expectations of lawyers, more often than not there is a gap between the two; hence, the access to justice gap that just keeps growing larger while lawyers across the country debate the necessity of incursions upon their monopoly.

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Wed, 16 Jan 2019 15:55:11 +0000 BlogLikes - Find Most Popular Blogs Law EIA Manitoba Winnipeg CBC News IRB Winnipeg Free Press University of Manitoba Justice Issues Access to justice Robson Hall Manitoba Interfaith Immigration Council Legal Aid Manitoba Asylum Seekers And Refugees Immigration and Refugee Board of Canada IRB Welcome Place Hagos
Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses http://feedproxy.google.com/~r/scotusblog/pFXs/~3/9_FAh6sDlTM/

Ratified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power is. In particular, does the 21st Amendment allow Tennessee to impose a two-year residency requirement for anyone who wants a retail license to sell alcohol there, or is the state’s power instead limited by a doctrine known as the dormant commerce clause, which bars states from discriminating against interstate commerce? The Supreme Court’s answer could have a significant impact on where Americans buy their alcohol and what kinds are available to them, but after an hour of oral argument it was hard to see exactly where the justices were headed in the case.

Shay Dvoretzky for petitioner (Art Lien)

The dispute pits Tennessee Wine and Spirits Retailers Association, a trade association that has taken the lead in defending the Tennessee law, against both Total Wine, the national mega-chain with nearly 200 stores in 23 states, and Doug and Mary Ketchum, who moved to Tennessee to buy a liquor store after doctors told them that the weather in their home state of Utah was bad for their disabled daughter. When Total Wine and the Ketchums applied for licenses to run retail stores in Nashville and Memphis, respectively, the Tennessee Alcoholic Beverage Commission was poised to approve their applications, until the retailers – citing the residency requirement – threatened to sue the state.

The retailers’ threat prompted the TABC to go to federal court, seeking a ruling on whether the residency requirement is constitutional. The U.S. Court of Appeals for the 6th Circuit struck down the requirement, and the justices agreed last year to hear the case.

At this morning’s oral argument, there was general agreement that, if Total Wine and the Ketchums wanted to sell something else – for example, milk or paint – Tennessee’s residency requirement would be unconstitutional, because it violates the dormant commerce clause by discriminating against out-of-state residents. The question before the court, then, was whether the 21st Amendment “saves” laws like Tennessee’s.

Representing the retailers defending the residency requirement, attorney Shay Dvoretzky told the justices that it does. The 21st Amendment, Dvoretzky argued, was intended to give back the powers that the states had had before Prohibition under two federal laws – the Wilson Act and the Webb-Kenyon Act – that gave them “near complete” power to regulate the distribution of liquor. States can do almost anything, Dvoretzky stressed, as long as they treat in-state and out-of-state products the same, which the residency requirement does.

This expansive power, Dvoretzky made clear in responding to a question from Justice Sonia Sotomayor, means that laws like Tennessee’s residency requirement do not violate the Constitution even if they are intended to protect in-state retailers from competition. There is no “economic protectionism” exception to the 21st Amendment, Dvoretzky emphasized.

Dvoretzky later repeated this idea in response to a question from Justice Samuel Alito, who asked him whether the state could impose a requirement that the grandparents of an applicant for a liquor license have lived in Tennessee. Dvoretzky responded that such a requirement “would not create a dormant Commerce Clause problem.” Before Prohibition, Dvoretzky said, the states’ powers included the power to discriminate against out-of-state interests.

Justice Brett Kavanaugh was skeptical. The problem I’m having, Kavanaugh said to Dvoretzky, is that nothing in the text of the 21st Amendment – which bars the “transportation or importation” of liquor into a state in violation of that state’s laws – gives the states complete authority over the distribution of liquor. All that the 21st Amendment was intended to do, Kavanaugh suggested, was let states remain “dry” if they opted to do so; it wasn’t intended to allow states to pass laws that discriminate against out-of-state interests.

Arguing as a “friend of the court” supporting the retailers, Illinois Solicitor General David Franklin represented 34 states and the District of Columbia. Franklin told the justices that the twin questions of who can sell alcohol and on what terms have always been at the heart of the 21st Amendment.

Justice Elena Kagan appeared unconvinced that states have complete latitude to regulate those questions, observing that Tennessee’s residency requirement seems to be an outlier. “Is there anything in your argument,” she asked Franklin, “that would give us a way to say that” these kinds of extreme examples are “clearly protectionist” and must be struck down, even if more reasonable residency requirements might survive?

Franklin pushed back, responding that although Tennessee’s residency requirements could potentially violate other parts of the Constitution, they do not violate the dormant commerce clause. That prompted Kagan to ask whether a better option for the court would be for it to rule that the dormant commerce clause does apply to the residency requirement, at which point the state could come back and demonstrate that it has “real health and safety concerns” that justify the laws.

Franklin resisted, telling Kagan that such an approach would “still embroil the courts in the kind of line drawing that the 21st Amendment was designed to relieve them of” and would “be at odds with the broad regulatory discretion” that the 21st Amendment gives the states. The argument that Total Wine and the Ketchums are making, Franklin emphasized, would strip all meaning from the 21st Amendment by treating alcohol the same as any other commodity. “But it’s not,” Franklin concluded.

Appearing on behalf of Total Wine and the Ketchums, lawyer Carter Phillips reiterated Kavanaugh’s suggestion (later echoed by Alito) that the 21st Amendment does not give states broad authority to regulate alcohol but instead was intended to allow states that had decided to remain “dry” to stop the importation of alcohol from other states.

Carter G. Phillips for respondents (Art Lien)

Justice Stephen Breyer countered that the Supreme Court’s earlier cases had already recognized that the 21st Amendment gives states “virtually complete control” over how they want to structure their liquor-distribution systems. What’s more, Breyer added, most states have long had some sort of residency requirement. “The history favors the other side,” Breyer told Phillips, even if it doesn’t necessarily make sense.

Kagan and Justice Neil Gorsuch fretted aloud about the prospect that a ruling for Total Wine and the Ketchums would open the doors to new challenges – for example, to other state laws regulating the sale and distribution of liquor. If we rule for you, Gorsuch told Phillips, the next case will argue that the current system discriminates against out-of-state residents by requiring retailers to have a physical presence in the state. Isn’t the next business model, Gorsuch continued, just to operate as the Amazon of liquor?

Phillips demurred, noting that Total Wine is a brick-and-mortar retailer. In any event, he responded, if such cases come to fruition, the states can make different arguments about why liquor retailers need to have an in-state presence. But in this case, he emphasized, Tennessee has never tried to explain why its residency requirements are necessary.

This is a hard case to handicap: Justice Ruth Bader Ginsburg was absent, Chief Justice John Roberts said very little, and Justice Clarence Thomas did not say anything at all. Throw in the fact that Tennessee has made only a half-hearted attempt to defend the residency requirements, and it becomes even more difficult to predict exactly what the justices are likely to do. A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

The post Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses appeared first on SCOTUSblog.

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Wed, 16 Jan 2019 15:45:13 +0000 BlogLikes - Find Most Popular Blogs Amazon Utah Featured Supreme Court Law Tennessee Nashville Ruth Bader Ginsburg Memphis Wilson Sonia Sotomayor John Roberts Phillips Blair Howe Alito U S Court of Appeals Franklin Doug Stephen Breyer Breyer Elena Kagan Kagan Clarence Thomas Samuel Alito Kavanaugh Gorsuch David Franklin Merits Cases TABC Carter Phillips Shay Dvoretzky Dvoretzky Brett Kavanaugh Neil Gorsuch Tennessee Wine and Spirits Retailers Association Mary Ketchum Ketchums Spirits Retailers Association Tennessee Alcoholic Beverage Commission District of Columbia Franklin Carter G Phillips
Allergan, Saint Regis Mohawk Tribe Ask SCOTUS To Hear Restasis Patent Case http://feedproxy.google.com/~r/abovethelaw/~3/umOgcQx65r0/ Wed, 16 Jan 2019 15:35:38 +0000 BlogLikes - Find Most Popular Blogs Law Courts Allergan Restasis Will The Shutdown Hurt Biglaw’s Bottom Line? http://feedproxy.google.com/~r/abovethelaw/~3/qxeRdc_D668/ Wed, 16 Jan 2019 15:07:45 +0000 BlogLikes - Find Most Popular Blogs Law Biglaw Quote Of The Day Major Lindsey & Africa Jeffrey Lowe HSS Heated Muff Pack https://www.bowhunting.com/blog/2019/01/16/hss-heated-muff-pack/#utm_source=rss&utm_medium=rss&utm_campaign=hss-heated-muff-pack The HSS Heated Muff Pack keeps your hands warm and ready for action on your cold weather hunting... Read more...

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Wed, 16 Jan 2019 15:06:42 +0000 BlogLikes - Find Most Popular Blogs Hunting New Products Bowhunting Blog ATA2019 HSS heated muff pack
Disability Benefits: SSI and Other Resources https://www.expertlaw.com/forums/showthread.php?t=241078&goto=newpost Wed, 16 Jan 2019 14:33:42 +0000 BlogLikes - Find Most Popular Blogs Law Social Security Law Is Going To Law School Now A Better Decision Compared To 10 Years Ago? http://feedproxy.google.com/~r/abovethelaw/~3/O4NI9IrUwp8/ Wed, 16 Jan 2019 14:32:12 +0000 BlogLikes - Find Most Popular Blogs Law Law Schools Law Students Steven Chung Wednesday: What’s Hot on CanLII http://www.slaw.ca/2019/01/16/wednesday-whats-hot-on-canlii-300/

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

1. Heller v. Uber Technologies Inc., 2019 ONCA 1

[3] The appellant commenced this proposed class action on behalf of “[a]ny person, since 2012, who worked or continues to work for Uber in Ontario as a Partner and/or independent contractor, providing any of the services outlined in Paragraph 4 of the Statement of Claim pursuant to a Partner and/or independent contractor agreement” (the “Class” or “Class Members”). The Class Members provide food delivery services and/or personal transportation services using various Uber Apps. For convenience, I will refer to them collectively as “drivers” below.

[4] In his proposed class action, the appellant seeks a declaration that drivers in Ontario, who have used the Driver App to provide food delivery and/or personal transportation services to customers, are employees of Uber and governed by the provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). The claim seeks declarations that Uber has violated the provisions of the ESA and that the arbitration provisions of the services agreements entered into between the parties are void and unenforceable. The action also claims damages of $400 million.

(Check for commentary on CanLII Connects)

2. R. v. Stipo, 2019 ONCA 3

[191] Moreover, as a person charged with an indictable offence, the respondent is entitled to disclosure of material and information in the possession or control of the prosecuting Crown, as well as “obviously relevant” information in the hands of other Crown entities. As we have already seen, the rolling log falls into this disclosure basket. This right to disclosure and reciprocal duty to disclose relevant, non-privileged information is an integral part of the respondent’s right to make full answer and defence, a right that is constitutionally grounded. It is true that a statutory disclosure regime can displace the process laid down by Stinchcombe, but such a “regime” would require more than a bare prohibition on disclosure.

(Check for commentary on CanLII Connects)

3. R. v. Penner, 2018 MBQB 200

[4] On August 26, 2016 Mr. Penner was driving his wife’s car at 67 km/h through a 50 km/h photo-radar speed enforcement. In due course, a ticket for a $272.75 fine arrived in the mail. Mr. Penner, notionally on behalf of his wife, challenged the ticket at a hearing on May 18, 2017. Ultimately, Mr. Penner did not dispute any facts. As he said, he was there to prove he was a human being, saying neither he nor his wife had ever taken on the capacity of a person, and hence the HTA did not apply to them. The court entertained his arguments but quickly disagreed, entering a conviction and confirming the fine.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was R. c. Grant, [2009] 2 RCS 353, 2009 CSC 32

[1] Monsieur Grant interjette appel des déclarations de culpabilité prononcées contre lui quant à une série d’infractions relatives aux armes à feu. Les accusations portées contre lui découlaient de la saisie d’un revolver survenue à l’occasion d’un contact entre des policiers et lui sur un trottoir de Toronto. Les déclarations de culpabilité reposant sur le dépôt en preuve du revolver, il faut déterminer en l’espèce si cet élément de preuve a été obtenu par suite de la violation de droits garantis à M. Grant par la Charte canadienne des droits et libertés et, le cas échéant, s’il y avait lieu de l’exclure en application du par. 24(2) de la Charte.

(Check for commentary on CanLII Connects)

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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Wed, 16 Jan 2019 14:25:58 +0000 BlogLikes - Find Most Popular Blogs Uber Law Esa Grant Ontario Uber Technologies Inc R Heller Wednesday: What's Hot on CanLII Stinchcombe Penner Monsieur Grant Charte Check Stipo
Argument transcripts http://feedproxy.google.com/~r/scotusblog/pFXs/~3/grru3xJbD28/

The transcript of oral argument in Knick v. Township of Scott is available on the Supreme Court’s website; the transcript in Tennessee Wine & Spirits Retailers Association v. Blair is also available.

The post Argument transcripts appeared first on SCOTUSblog.

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Wed, 16 Jan 2019 14:03:49 +0000 BlogLikes - Find Most Popular Blogs Supreme Court Law Blair Merits Cases Knick v Township of Scott Tennessee Wine Spirits Retailers Association
Alabama Judge Takes Bold Stance Against Confederate Monuments http://feedproxy.google.com/~r/abovethelaw/~3/M10BJwqQmx8/ Wed, 16 Jan 2019 14:00:43 +0000 BlogLikes - Find Most Popular Blogs Law Alabama Courts First Amendment Michael Graffeo Confederate monuments Blocking Constituents from Facebook Page Violates First Amendment–Davison v. Randall https://blog.ericgoldman.org/archives/2019/01/blocking-constituents-from-facebook-page-violates-first-amendment-davison-v-randall.htm The Chair of Loudoun County Board of Supervisors blocked a constituent on her official Facebook page. While the block was temporary, Davison, the constituent, filed a lawsuit, and prevailed after a bench trial. The Fourth Circuit affirms the main points.

The court first says Davison has standing to pursue his claims. He was subject to past enforcement, and the Chair has not “disavowed” future enforcement.

The Chair also challenged whether she had acted under color of law in administering the Chair’s page and banning Davison. Looking to a totality of circumstances, the court says that the Chair created the page to further her duties and used it as a “tool of governance”. The ban was borne out of her official acts and her displeasure with the content of Davison’s posts. The court says these acts are taken under state law and subject to section 1983 claims.

The court then turns to the merits, and specifically whether the trial court erred in concluding that the Chair’s Facebook page was a “public forum”. The government’s ability to restrict speech is most limited in a “public forum,” so this was a key question. The court says that the page bears “hallmarks” of a public forum. The stated purpose of the page was “public discourse,” and the Chair did not impose any topical limitations on what could be discussed on the page. And sure enough, the actual discourse on the page was wide-ranging. The court says, citing to Zeran and Packingham, that the forum is particularly compatible with expressive activity, so it makes sense that it’s a public forum.

The Chair made two arguments against the applicability of the public forum doctrine.

First, she said that Facebook is a private website, and the property in question is not “public property”. The court says that the forum doctrine has never hinged on ownership of the property in question; and in any event, the space where people comment is in the grey area. Sure, Facebook owns the servers, but the page itself “encompasses a web of property rights.” Moreover, the court says that the Chair effectively controlled access to the page, including maintaining authority to ban commenters. The court analogizes Facebook comments to public access channels which courts have said constitute a public forum.

Second, the Chair also argued that the page in question was government speech, which under First Amendment principles, the government is freer to control. The court says this argument fails to appreciate the nuances of the page’s content. Sure, her announcements amount to speech of the Chair. However, “the interactive components” of the page are different. She didn’t purport to control these and actually invited a wide range of commentary. The space where people interact and comment are therefore not government speech.

Finally, the court says that it need not examine what type of public forum the page is because it was undisputed the Chair engaged in viewpoint discrimination, which is never allowed:

Here, the district court found—as the record amply supports—that Randall banned Davison’s Virginia SGP Page because Davison posted a comment using that page alleging “corruption on the part of Loudoun County’s School Board involving conflicts of interests among the School Board and their family members.” Although Randall stated that she had “no idea” whether Davison’s allegations were “correct,” she nonetheless banned him because she viewed the allegations as “slanderous” and she “didn’t want [the allegations] on the site.” Randall’s decision to ban Davison because of his allegation of governmental corruption constitutes black-letter viewpoint discrimination.

Put simply, Randall unconstitutionally sought to “suppress” Davison’s opinion that there was corruption on the School Board. Cornelius, 473 U.S. at 812–13; see also, e.g., Rossignol, 316 F.3d at 521 (holding that sheriff’s deputies engaged in viewpoint discrimination when they seized an issue of a newspaper that criticized the county sheriff’s and his deputies’ performance of their official duties); Putnam Pit, Inc. v. City of Cookeville, Tenn., 221 F.3d 834, 846 (6th Cir. 2000) (holding that a municipality engages in viewpoint discrimination if it refuses to link newspaper webpage to the city’s website solely because the newspaper sought to expose municipal corruption); Knight, 302 F. Supp. 3d at 575 (holding that the President engaged in viewpoint discrimination when he blocked individuals from his Twitter account because the individuals “posted tweets that criticized the President or his policies”). 7 That Randall’s action targeted comments critical of the School Board members’ official actions and fitness for office renders the banning all the more problematic as such speech “occupies the core of the protection afforded by the First Amendment.” Rossignol, 316 F.3d at 521 (quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995)).

Finally, the court looked at a few issues Davison raised in his cross appeal. The court says that the trial court properly dismissed the official capacity claim because there was insufficient evidence that the Chair acted pursuant to an official policy. The Board never formally endorsed her conduct and it was unclear whether the Chair individually could formulate policy on social media pages. Second, Davison sought to add an additional claim that the Chair violated the First Amendment by maintaining a page for constituents on Facebook. Davison argued in what the court characterizes as a “novel legal theory” that forum status is incompatible with Facebook’s own right to freely screen content posted by users. Davison argued that by creating public forums on Facebook, the government has enabled a third party to ban content that would otherwise be allowed on the forum (or that it could not ban directly). The court affirms the trial court’s decision to not allow the addition of this claim but nevertheless flags that it’s a nuanced argument that may deserve to be aired at some point in the future.

A concurring judge wrote to highlight two questions. First, how a “unit” of government is treated for purposes of ability to designate something as a forum—i.e., should the court more carefully scrutinize whether the Chair is empowered to create a public forum? Judge Keenan urges the Supreme Court to address this issue. Second, the judge focuses on Davison’s proposed amended complaint and the tension between forum analysis and third party rules. Does it make sense to call something a public forum when Facebook retains the right to ban expressive activity in a forum?

__

This is obviously a big ruling. As the court notes, this is the first circuit court decision dealing with politician’s ability to ban constituents on social media. The Knight Foundation-Trump case is pending in the Second Circuit. This case will be cited as additional authority by the plaintiff in that case.

The Knight Foundation dealt with Twitter, whereas this case deals with Facebook. The courts in both cases focus on the “interactive space”. While they acknowledge it’s not owned by the government and is subject to third party veto, it’s nevertheless valuable real estate. This decision does not get into the nuances of muting versus blocking, instead concluding at a high level that the space is interactive, and thus a viewpoint-driven block is not allowed.

Lurking beneath the surface is the issue of Facebook’s own ability to moderate content. This has received a significant amount of focus generally, but doesn’t make its way into the legal analysis.

Perhaps this is cert worthy. The concurring judge’s vague plea to the Supreme Court to clarify things certainly helps if a petition is filed.

__

Eric’s Comments: Unfortunately, we’re experiencing an epidemic of government officials shutting down online mechanisms to redress their statements and actions. Numerous pending cases are challenging those blocks, and surely many other blocks have never reached the courts. Why are politicians so quick to tune out their constituents? Some hypotheses:

  • Politicians retain the discretion to block spam and harassment. However, the Davison suit did not involve the constituent “harassing” the politician or other constituents.
  • Politicians might confuse the line between their personal and professional accounts. In this case, Randall expressly invited constituents to post.
  • Perhaps politicians are exposed to such a steady stream of vitriol that blocking a constituent on social media affords them a small degree of control over the situation. This would be a terrible justification, but I’ve never walked in a politician’s shoes.
  • Politicians who block constituents on social media may be thin-skinned and overreacting. This seems like the most likely explanation to me.

Whatever the reason, I hope the courts send the message loud-and-clear that politicians cannot refuse to hear their constituents’ feedback. Even if courts send this message, we need politicians to get the message. Sadly, we as taxpayers pay for the resulting legal battles when they tune out constituents.

While the result in this case was good, note that Randall made it an easy case for the court because she expressly invited constituents to post, telling them she wanted to hear from them. Most politicians won’t do that. I hope future courts will cite to the First Amendment principles animating this case, rather than distinguishing this case as predicated on the politician’s explicit consent.

The concurrence raises an interesting point by noting that the ruling creates an odd dichotomy that Facebook can remove posts that Randall cannot. This means that First Amendment-protected speech that Randall must not touch could still come down at Facebook’s hand; and in theory, Randall could flag content for Facebook hoping that they will exercise their removal discretion where Randall could not act directly. I don’t believe it’s unprecedented to have a private discretion overlay on public forums. An example that came to mind is landlords leasing space to government actors where the lease terms protect the landlord’s interests in ways that exceed what the government could do. I haven’t researched this area, so perhaps someone with more expertise on this “private overlay to public forum” topic will speak up. Note that the issue also lurks in the Halleck case pending before the Supreme Court, so we may get more insights into this seeming conflict. What I am sure is that it would be terrible to treat social media providers as state actors simply because state actors use their services; but I could imagine a legal standard that requires social media providers to treat content moderation differently when governments have set up public fora on their services.

I have two (inconsistent) operational suggestions for how social media providers should be handling the presence of politicians on their services:

Option #1: Social media providers should display a special badge for accounts held by government officials and politicians, with the shared expectation that badged accounts are presumptively public fora for First Amendment purposes. In other words, I don’t think the social media providers should let politicians straddle the line here; they should force the politicians to think they are operating a public forum and proceed accordingly. I know that there would be some tough classifications about who gets badged or not, but many classifications would be easy.

Option #2: social media providers should suspend all accounts that would qualify as public fora. In other words, so long as a person is in government office, they should not be allowed to post on social media at all. I know this sounds radical, but hear me out. Today, government accounts are the most pernicious source of disinformation in our information economy. Governments routinely, consistently, unashamedly, and detrimentally lie to and deceive their constituents on social media, and social media providers are blithely allowing that disinformation to spread with the imprimatur of both the government and the social media provider. Rather than trying to police and curb government disinformation on social media, another approach would be to categorically shut it down.

Case citation: Davison v. Randall, No. 17-2002 (4th Cir. Jan. 7, 2019)

Related posts:

President Trump Violated the First Amendment by Blocking Users @realdonaldtrump

Kentucky Governor Can Block Constituents on Social Media–Morgan v. Bevin

Deleting Comments to County Facebook Page May Violate First Amendment–Davison v. Loudoun County

County Attorney’s Deletion of Constituent’s Facebook Comment May Violate First Amendment

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Wed, 16 Jan 2019 14:00:06 +0000 BlogLikes - Find Most Popular Blogs Facebook Supreme Court Law Kentucky Virginia Social Media Randall Knight Foundation Trump Board Morgan McIntyre Fourth Circuit Eric Rossignol Bevin Keenan Loudoun County School Board Cornelius Davison Content Regulation Loudoun County Board of Supervisors Packingham Cookeville Tenn Zeran Halleck Ohio Elections Comm Putnam Pit Inc Facebook Davison Knight Foundation Trump
Argument analysis: Justices grapple with notice-and-comment rulemaking for Medicare and beyond http://feedproxy.google.com/~r/scotusblog/pFXs/~3/lcpbQXMjCQU/

Medicare was before the Supreme Court yesterday in a case that could have significant implications for administrative law. At the granular level, the case, Azar v. Allina Health Services, concerns whether the Department of Health and Human Services was permitted to change, without notice and comment, an important reimbursement formula for hospitals that treat many low-income patients. That question alone determines the fate of $3 to $4 billion. But the stakes are higher because the case requires the Supreme Court to interpret a provision of the Medicare Act, 42 U.S.C. §§ 1395hh(a)(2), that applies to any “substantive” changes to benefits, payment of services, or eligibility, and, therefore implicates significant components of the entire program. At a broader level still, and beyond the Medicare context, the case has administrative law mavens watching because it gives the court the opportunity to opine on some still unsettled, yet central, administrative law questions about the line between substantive and interpretive rules.

The bench was missing two justices during the argument. Justice Ruth Bader Ginsburg is recuperating at home from lung surgery, but will participate in the decision based on the briefs and the argument transcript. Justice Brett Kavanaugh is recused because he wrote the U.S. Court of Appeals for the District of Columbia Circuit’s decision invalidating the HHS formula — but his presence was definitely felt.

The focus of the argument teetered between the particular statutory interpretation of the Medicare Act and HHS’s administrative authority more broadly. Justice Sonia Sotomayor led off the questioning by asking the Deputy Solicitor General Edwin Kneedler about one of the key open areas of administrative law when it comes to the fuzzy line between interpretive rules, which do not require notice-and-comment procedures under the Administrative Procedure Act, and substantive rules, which typically do: What makes an administrative decision binding? Although the reimbursement formula technically binds only the private contractors who work for the agency, Sotomayor emphasized that “every single provider is going to be given a fraction that incorporates your policy.”

As sometimes happens in administrative law cases, the justices’ questioning did not break down along traditional ideological lines. Sotomayor, retaining the floor, next turned to statutory construction. She was soon joined by Justices Elena Kagan and Neil Gorsuch in the same line of questioning — which echoed the reasoning of Kavanaugh’s opinion for the D.C. Circuit.

The trio of justices resisted the government’s reading of the Medicare Act as coterminous with the APA. They pressed Kneedler to the point where he could barely get a word in to explain how the two acts could be construed in the same way given the clear textual differences between them.

Sotomayor wondered why Congress did not just use the language of the APA in its 1987 amendment to the Medicare Act if it meant to include the same exceptions to notice and comment that the APA allows. Under the 1987 amendment, the Medicare Act requires prior notice and comment for any “rule, requirement, or other statement of policy … that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits.”

Gorsuch noted that the very idea of “statements of policy as being substantive” is a “complete incoherent statement in APA language” because under the APA, statements of policy lack legal force and are therefore excluded from the notice-and-comment requirement. Gorsuch next pointed out that, although the Medicare Act adopts the APA’s good-cause exception to rulemaking verbatim, “it clearly doesn’t adopt the substantive interpretive language verbatim, which is right next door … in the APA.” He told the government it was “asking us to think that Congress recreated that [APA] section in this statute through this rather oblique mechanism.”

Justice Stephen Breyer jumped in, in an apparent attempt to offer support to the government with his reading of the Medicare Act’s legislative and enactment history. Breyer read the history to say that, because the government had previously avoided notice and comment in its Medicare decisions, Congress essentially told the agency that no matter what the agency called a particular decision, if that decision affected a substantive legal standard, the agency had to give prior notice and accept public comments.

The Medicare Act’s legislative and enactment history was more prominent at the argument than in the briefing. Both Breyer and Gorsuch said they found the legislative history of the Medicare Act “confused.” Specifically, the argument focused on both the original version of the provision, which was enacted in 1986 and seemed to track the APA, and the amended and current version, enacted in 1987. Kagan asked what the 1987 amendment “ends up actually accomplishing” if it goes farther than the APA, which was already covered by the 1986 legislation. Gorsuch, after making clear that he had read the legislative history but preferred to focus on the text, asked how the 1987 additions could be “entirely superfluous.”

Kagan also asked the government how it could argue that the term “substantive” means something different in the provision in question — 42 U.S.C. § 1395hh(a)(2) — where the government reads “substantive legal change” to mean something nonbinding and non-interpretive, and in § 1395hh(e), where the government reads “substantive change” to mean something material or significant. She wondered why the Supreme Court should interpret the word “substantive” in “two different ways in two very nearby provisions.” Gorsuch jumped in to second Kagan’s question.

Kneedler then pivoted to the feared consequences of an affirmance, noting that there are thousands of pages of Medicare manuals that could be subject to notice and comment, grinding the nation’s largest insurance system to a halt. But Sotomayor, in a question later echoed by Kagan, pointed to the D.C. Circuit’s post-Allina decision in Clarian Health West, LLC v. Hargan, which limited Allina’s reach by reading a different Medicare-manual decision as not requiring notice and comment. Sotomayor and Kagan both asked whether Clarian undercuts the government’s consequences argument.

The chief justice, who had been quiet during the government’s argument, was the first to engage with the hospitals’ attorney, Pratik Shah. Like Sotomayor, the chief justice opened with a question on whether HHS’s decision was binding, but unlike Sotomayor, he suggested that the proposed new formulae were “not binding … interim calculation[s].” Shah disputed that characterization, arguing that the government’s actions were indeed binding because the “only recourse … is to file an administrative appeal or sue in court.” There was some discussion about whether the agency appeals board correctly decided that it lacked power to review the formulae contested here.

Shah came back to the “statement of policy” language in the Medicare Act. If a statement of policy “lacks the force of law” under the APA, he argued, to conclude that its addition to the Medicare Act’s section requiring notice and comment does nothing is “reading significant words out of a statute. That,” he said, “is not how statutory construction works.” Picking up on Gorsuch’s earlier point, Shah added that the Medicare Act’s language would be “an exceedingly, extraordinarily, round-about way for Congress to try to adopt the interpretive rule exception which is [already] sitting on the books.”

Sotomayor then asked what “substantive legal [standard]” means if it does not mean legislative (noninterpretive) rules under the APA, providing Shah the opportunity to make his argument that substantive in this phrase is meant to distinguish procedural actions. The discussion returned to the convoluted legislative history — specifically, what cases members of Congress were referring to in a 1987 conference committee report connected to the statutory language at issue. Both the government and the hospitals invoked the D.C. Circuit’s 1987 decision in American Hospital Association v. Bowen as the key case — the government for the proposition that substantive was to be distinguished from interpretive, and the hospitals for the proposition that substantive was to be understood as distinct from procedural.

Turning back to the potential consequences, Breyer asked if the hospitals would really be happy if it takes “19 years” for HHS to make decisions. If it has to use notice and comment for “everything arguably important in every manual,” Breyer said, “it will be here till Christmas come.” Shah seized on this opportunity to cite empirical evidence from the hospitals’ brief indicating that the agency’s rulemakings proceed relatively quickly, arguing that not that many pages of the Medicare manuals would actually be affected. He managed to winnow down the 6,000 pages of manuals to 980 (because the last 5,000 or so are procedural) and then to 400 (because much of the rest are pre-1987 and not covered by the provision) and then to “about 35,” a mathematical feat a majority of the court may not have bought.

Finally, the chief justice returned the argument to administrative law matters, raising the agency’s ordinary ability to choose between rulemaking and adjudication, and asking why this freedom did not permit the government’s action here. Shah responded that “this looks nothing like adjudication,” because it “applies to every hospital nationwide without exception” and it is “prospective” (raising, without naming, issues in the 1969 Supreme Court case National Labor Relations Board v. Wyman-Gordon Co.).

For those trying to read the tea leaves (always a risky endeavor), Sotomayor, Kagan and Gorsuch seemed inclined to rule against the government, whereas Breyer and perhaps the chief justice seemed inclined in the other direction. Justice Samuel Alito said very little. Justice Clarence Thomas did not comment, but, given the justices’ preference for textual analysis, we suspect that Thomas and either Ginsburg, Alito or both will ultimately side against the government and affirm the Kavanaugh opinion.

Editor’s Note: Analysis based on transcript of oral argument.

* * *

Past cases linked to in this post:

American Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987)
Clarian Health W., LLC v. Hargan, 878 F.3d 346 (D.C. Cir. 2017)
National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759 (1969)

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Wed, 16 Jan 2019 13:52:27 +0000 BlogLikes - Find Most Popular Blogs Featured Supreme Court Law Congress Medicare Ruth Bader Ginsburg National Labor Relations Board Shah Thomas Sonia Sotomayor APA HHS D C Circuit Department of Health and Human Services Sotomayor Bowen Stephen Breyer Breyer Elena Kagan Kagan Clarence Thomas Samuel Alito Kavanaugh Allina Gorsuch Merits Cases American Hospital Association Azar Allina Health Services Brett Kavanaugh Sotomayor Kagan Neil Gorsuch Edwin Kneedler Kneedler Hargan Clarian Health West LLC Clarian Pratik Shah Like Sotomayor Wyman Gordon Co Ginsburg Alito Clarian Health W LLC
Want Better Litigation Outcomes? Know Your Judges [Sponsored] http://feedproxy.google.com/~r/abovethelaw/~3/uCHtZ2UXxrw/ Wed, 16 Jan 2019 13:31:10 +0000 BlogLikes - Find Most Popular Blogs Law Sponsored Content Gavelytics "Mens Rea Reform and Its Discontents" https://sentencing.typepad.com/sentencing_law_and_policy/2019/01/mens-rea-reform-and-its-discontents.html The title of this post is the title of this great-looking new article authored by Benjamin Levin now available via SSRN. Here is its abstract:

This Article examines the debates over recent proposals for “mens rea reform.”  The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct.  Often, new criminal laws do not require that defendants know they are acting unlawfully.  Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state.  These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle purely designed to protect defendants accused of financial or environmental crimes.

Rather than advocating for or against such proposals, this Article argues that opposition to mens rea reform should trouble scholars and activists who are broadly committed to criminal justice reform.  Specifically, I argue that the opposition demonstrates three particular pathologies of the U.S. criminal system and U.S. criminal justice reform: (1) an overreliance on criminal law as a vehicle for addressing social problems; (2) the instinct to equalize or level up — when faced with inequality, many commentators frequently argue that the privileged defendant should be treated as poorly as the disadvantaged defendant, rather than using the privileged defendant’s treatment as a model; and (3) the temptation for mass incarceration critics to make exceptions and support harsh treatment for particularly unsympathetic defendants.  Ultimately, this Article argues that achieving sweeping and transformative criminal justice reform will require overcoming the three pathologies.

[Author: Douglas A. Berman]

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Wed, 16 Jan 2019 13:23:23 +0000 BlogLikes - Find Most Popular Blogs Law Mens Mens Rea Douglas A Berman Benjamin Levin
GOA Files Case Before SCOTUS To Fight Parts Of The NFA http://feedproxy.google.com/~r/TheFirearmBlog/~3/hcsAT3uvPB0/ Jeremy Kettler in uniform answering reporter's questions. Mr. Kettler is the subject of an ongoing Federal case.  The Gun Owners of America’s legal arm, the Gun Owners Foundation, is pressing further in their full-throated defense of Jeremy Kettler, a disabled US Army combat veteran. Mr. Kettler was convicted of possession of an unregistered firearm in violation of the National Firearms Act (NFA) in November 2016. The original complaint against Mr. Kettler […]

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Wed, 16 Jan 2019 13:00:00 +0000 BlogLikes - Find Most Popular Blogs News Guns Law Scotus Appeal Case Goa US Army Editorial NFA Kettler NFA / Suppressors / Class III Gun Owners of America Suppressors Gun Owners Foundation Jeremy Kettler