Problem Areas Flashcards
What should a magistrate judge do—i.e., what findings should she make—when a pretrial releasee raises a 2d Amendment challenge to the firearms condition?
(1) Identify and make findings about the specific threat.
(2) Decide if that threat falls in a historical tradition of regulation justifying disarmament.
Won’t your position result in more
pretrial detention? If an MJ thinks the only conditions that assure community safety include disarmament, should the MJ just lock your client up?
Same point in Scott. Legal and practical answers.
(1) Legal - unconstitutional conditions doctrine. We wouldn’t induce releases to accept unconstitutional conditions limiting speech on pain of pretrial detention.
(2) Practical - it should be a rare case where (a) not prohibited possessor, (b) non-threatening enough that the MJ is considering release, (c) not in any historical tradition of regulation—but total disarmament is the only way to protect the community.
MJs have wide latitude to restrict from seeing certain people or visiting certain areas. But don’t have to think about those things when the condition is standard.
Can you identify any historical tradition allowing for disarmament?
Any historical tradition validating 922(g) categories would also apply to pretrial release conditions.
(1) Fair to say that affray is traditional.
(2) Define affray - not mere possession
(3) Clear example of affray.
(4) Courts would work out gray areas but my clients are outside.
Why doesn’t Fencl fall within the affray tradition?
(1) Charges = failure to register weapons that aren’t federally illegal, legal in many states.
(2) No accusation of violence or threats, with or without firearms.
(3) Only prior offense was mere possession.
Important to distinguish mere possession from misuse.
Salerno points.
(1) Facial Fifth and Eighth Amendment challenges to detention provisions.
(2) Nothing to do with this as-applied Second Amendment challenge, ESPECIALLY because Salerno was decided decades before Heller.
Couldn’t Congress make this a mandatory condition of release to protect pretrial services?
Second Amendment challenge would apply and the government would have to identify a historical tradition of regulation supporting it.
The government hasn’t shown that generalized fears justified complete disarmament in the home.
Our clients have legitimate self-defense needs.
What if we buy the theory about broad power over detention and bail? How should we define its bounds?
Not really about the power to detain but power to set release conditions. Government has not submitted any evidence about whether judges could impose this kind of release condition or under what circumstances. That’s the kind of evidence that would help this Court draw the proper boundaries.
Doesn’t your position expose pretrial services to serious risks?
(1) Not prohibited possessors, non-threatening enough to be on release, and outside of the government’s historical traditions.
(2) If still afraid, can use other conditions. —Require client to have someone on standby who can keep firearms during home visits. Or surrender firearm to pretrial services office on day of home visit.
—Virtual home visits.
—Not happening every week.
