Thursday, January 11, 2018

Oral arguments at 2C in Robinson vs. Sessions Posted by Paloma Capanna on Jan 9, 2018 in Blog, Featured

Never ceases to amaze me the questions judges ask. bpb


I'll paste Paloma A. Cappana's short report but please go listen to and read the arguments.

On Monday, January 8, 2018, I presented oral arguments at the Second Circuit Court of Appeals in the case of Robinson vs. Sessions (docket 17-1427).

Court was held in New York City at a building that is at once formidable and foreboding.  Massive stone columns and steps lead to its metal front door of the Thurgood Marshall US Courthouse.  Once past security, my shoes echoed loudly in the marble-veined lobby that is void of people and furniture.  The landing of the 17th floor contained a couple of benches, but was otherwise ringed tight with windowless doors that gave no clue what went on behind them.  The only welcoming detail was the ceiling decoration of flowers in plaster relief technique.

Presiding were Judges Jacobs, Hall, and Raggi.  Two men, born and raised in NYC.  One woman, like me, born in New Jersey and women’s college educated.  The Slate in 2005 suggested Raggi might be on the short list of potential SCOTUS nominees.

Robinson vs. Sessions was called as the third case of the five cases argued.  We stayed to observe the subsequent cases.  Orals in the other four cases were more formal and focused on the facts, excepting one female lawyer pounding a favorable SCOTUS decision handed down after the briefs had been submitted in this intermediate appellate court.  Unlike my extensive experience before the New York State Appellate Division Forth Department, there was no lightness or humor.  The judges in NYC did not express any identifiable recognition of any attorney as being a familiar colleague.  There was no casual banter.

Second Circuit Courtroom 1703Oral arguments in Robinson vs Sessions resembled the oral arguments and decisions I have been experiencing these past five years in federal court.  Unfortunately, two things occurred.  First, questions had little to do with the pending case.  Second, questions were poorly framed by the judges because of their own lack of familiarity with this area of the law.

The first question came promptly from Judge Hall, who wanted to know how it could happen that NICS did not contain the disqualifying records of a man dishonorably discharged from the military, referencing the recent homicide committed by one Devin Kelley that is the subject of the pending litigation in City of New York, et al. vs. US Dep’t. of Defense, et al.  (For the statutory analysis concerning that topic and that case, refer to my recent blog on point.)

Judge Raggi’s questions followed and were erroneously premised that the disqualifying factors under 18 USC §922(g)(1)-(9) do not have an associated due process component.  I selected one, specifically (g)(4), to explain its due process requirements set out in the implementing regulations found at 27 CFR §498.11, but her facial expression went blank when I explained that the mental health disqualifier mandates an involuntary commitment pursuant to court order.

Back to Judge Hall, who didn’t know that federal and state agency record submissions to NICS is voluntary (not mandatory).  He evidenced no comprehension of the mechanics of how the ATF Form 4473 is used in the FFL setting, how the customer fills it out under oath, how an FFL runs the interface with the ATF, and so forth.  And on.

You can listen to the oral arguments for yourself.

Few of yesterday’s questions from the three judges had anything to do with Robinson vs. Sessions.  Instead, the questions had everything to do with the misinformation – intentional or not – pounded into the American public by every mainstream media outlet in the country.

The dynamics I experienced with the three judges is that which I experience every time I talk to reporters and before an audience.  It reflected the myriad of questions that you throw at me every day through lengthy voicemails, e-mails, and FB messages.  I might do my best to try to speak about one sub-topic at a time, but what comes at me is pure chaos.  The average person – and the average judge is no different – is too hyped on hysteria to organize a cogent question or participate in a two-way conversation.

What is it that I am saying that makes everyone, including you, so off-put?

The law as it stands.

If you’re pro gun control, you don’t want me to provide a clear explanation that a legal outcome was correct on the law when you are looking at a dead body and a smoking gun.  Those folks say the laws and the constitution be damned, do whatever it takes to get guns off the street.

If you’re pro Second Amendment, you don’t want me to provide a clear explanation that a legal outcome  is correct on the law when a defendant is put behind bars and firearms are confiscated.  You folks say the law be damned; I’m not going to follow it.

Nobody wants to hear me say, “Your concerns are appropriately addressed to Congress.”

And so I become the messenger that gets shot in the crossfire of political discontent.

My commentary on oral arguments is that if the Second Amendment is to become the modern civil rights movement that it deserves, you’re going to have to address at least two things.  Number one (the easier), you are going to have to become public relations experts on trending Second Amendment topics.  Seriously and consistently invest your time in monitoring mainstream media.  Where you spot errors or quotes without a response from the right, you must contact reporters and editors to set the record straight in a timely and professional manner.

Second, you need to start pounding the pavement to recruit lawyers to represent litigants on these critical civil rights issues.  Lawyers educate judges in every well-researched and presented case.  The federal bench is operating at only the most basic level concerning firearms law.  I can’t do it alone.  Start knocking on doors and going to law schools and actively recruit lawyers.  I’m no fool; I know lawyers don’t want my cases because I’m not getting paid and neither will they.  Gang, you’re going to have to get organized and raise the serious money necessary to get the attention of lawyers and/or you’re going to have to create your own ACLU-like foundation.  The Brady Center did.

As soon as the decision is issued by the Second Circuit, I’ll let you know.  For now, you have the Briefs and the oral arguments.

We can do this.  Ultimately, we will prevail.  We’re right on the facts and we’re right on the law.

But, if we’re going to effectively fight and win in our lifetime, then everyone is going to have to get off the sidelines and get actively involved.  The Second Amendment is a heavy lift and right now our civil rights are treading water in the Hudson.
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