Friday, March 25, 2016

An Update in Caetano v. Massachusetts

Several weeks ago I wrote about Jaime Caetano’s cert petition in Caetano v. Massachusetts. For background information on the case, see my earlier post here.

In what I imagine is a rare occurrence, the Supreme Court simultaneously granted the cert petition, vacated the Supreme Judicial Court of Massachusetts’ judgment, and remanded the case. You can find the opinion here.

Justice Samuel Alito
The per curiam opinion isn’t particularly interesting from a legal writing perspective, but Justice Alito’s concurrence (which Justice Thomas joined) is a sight to see. We often find some of the best and most interesting judicial writing in concurrences and dissents. This case is no exception.

I was particularly drawn to Caetano’s use of pathos in her cert brief. That pathos was clearly effective, as Justice Alito’s concurrence begins:

After a bad altercation with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and in fear for her life. She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun for self-defense against her former boyfriend, Caetano accepted the weapon.

It is a good thing she did....Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: I’m not gonna take this anymore. I don’t wanna have to use the stun gun on you, but if you don’t leave me alone, I’m gonna have to. The gambit worked. The ex-boyfriend got scared and he left her alone.

I’m not sure I’ve seen an opinion from Justice Alito that is as strongly-worded as this one. Justice Alito’s language shows his dissatisfaction with both the prosecutor’s decision to prosecute Caetano in the first place and the Supreme Judicial Court of Maine’s opinion, which he describes as “def[ying] Heller’s reasoning.” I’ve highlighted some of Justice Alito’s most interesting and forceful words and phrases below:

-Under Massachusetts law...Caetano’s mere possession of the stun gun that may have saved her life made her a criminal.

-A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds.

-The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not.

-Although the Supreme Judicial Court professed to apply Heller, each of its analysis defied Heller’s reasoning.

-The state court repeatedly framed the question before it as whether a particular weapon was in common use at the time of enactment of the Second Amendment. In Heller, we emphatically rejected such as formulation...[as] not merely wrong, but bordering on the frivolous.

-Because the Court rejects the lower court’s conclusion that stub guns are “unusual,” it does not need to consider the lower court’s conclusion that they are also “dangerous.” But make no mistake—the decision below gravely erred on both grounds.

-The Supreme Judicial Court’s conclusion that stun guns are “unusual” rested largely on its premise that one must ask whether a weapon was commonly used in 1789. As already discussed, that is simply wrong.

If you love good writing, Justice Alito's concurrence is a quick and interesting read that is well worth your time.

Happy Friday!

Tuesday, March 15, 2016

Transition Ambition

This time every year, when I’m grading student briefs, I’m always reminded that learning the basics of legal analysis and writing isn’t enough to make you a good writer. Being a good writer is also about telling a good story—one that flows logically; one that the reader can follow. Adding transitions won't fix dissonance, but transitions can certainly aid understanding.

Judge Neil Gorsuch
Take the writing of Judge Neil Gorsuch of the Tenth Circuit Court of Appeals. Judge Gorsuch’s writing has many rhetorical flairs, but his transitions are a hallmark. 

Judge Gorsuch likes to start paragraphs with sharp, short sentences. These sentences do double-duty; they both bridge the gap between paragraphs and serve as thesis sentences. Judge Gorsuch’s masterful transitions connect the concepts he’s writing about and vastly increase the reader’s understanding of the facts and law. Let’s take a look at several examples:

The questions presented in Freeman were whether and when an initial sentence imposed (as here) under a Rule 11(c)(1)(C) plea agreement—an agreement in which the defendant and the prosecutor stipulate to a sentence that the court must impose if it accepts the plea agreement—can be said to be “based on” a guidelines range.

Freeman produced a fractured result. Four justices, representing a plurality of the court, indicated that they would “permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.”

United States v. Fields, 500 Fed. Appx. 755 (10th Cir. 2012).


Any and all § 924(c)(1)(A) sentences Mr. Rentz receives must themselves be served consecutively to, not concurrently with, any sentences associated with his underlying crimes of violence (assaulting the first victim, murdering the second).

Cases like Mr. Rentz's are hardly unusual. In an age when the manifest of federal criminal offenses stretches ever longer, a parsimonious pleader can easily describe a defendant's single use of a firearm as happening “during and in relation to” multiple qualifying crimes. Like when a defendant shoots a potential witness against him—committing at once the separate crimes of murder and the killing of a witness.

United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015).


RLUIPA may be a “super statute,” capable of mowing down inconsistent laws, but to win its application takes no small effort. A plaintiff must carry at least two burdens, and even then can still lose if the government bears two burdens of its own.

Take the plaintiff's burdens first. RLUIPA requires us to ask whether an inmate's (1) religious exercise is (2) substantially burdened by prison policy.

Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014).

I’m a fan of short, zippy transitions (e.g., and, but, so) over clunkier ones that lawyers often favor (e.g., therefore, furthermore, notwithstanding). But Judge Gorsuch takes transitions to a whole new stratosphere. 

I’m working on mimicking them in my own writing! 

Wednesday, March 2, 2016

A Cert-Worthy Brief in Caetano v. Massachusetts

The Supreme Court will soon decide a cert petition in Caetano v.
Massachusetts, a case about whether a stun gun is an “arm” under the Second Amendment. Jaime Caetano was convicted of violating a Massachusetts statute that outlaws the possession of a “portable device or weapon from which an electrical current...may be directed, [and] designed to incapacitate temporarily, injure or kill...”

The Supreme Judicial Court of Massachusetts (which I’ll call the Massachusetts Supreme Court) upheld the conviction, finding (1) that a stun gun is not the type of weapon that Congress contemplated as being protected under the Second Amendment when that amendment was passed in 1789; (2) that Caetano’s conduct was outside the “core” of the Second Amendment; and (3) that the stun gun was a “dangerous and unusual” weapon.   

This case was interesting even before the death of Justice Scalia but is even more interesting now given Caetano’s heavy reliance on Justice Scalia’s opinion in D.C. v. Heller.

Caetano is currently represented by counsel with the Public Defender Division of the Committee for Public Counsel Services in Boston, Massachusetts. Her cert petition isn’t a perfect piece of legal writing—those are unicorns; they don’t exist except in our imaginations. But the brief is a solid piece of advocacy. Below are some of the most interesting parts (at least from a legal writing perspective).  

Logic of Logos

Caetano’s brief is full of logos, and she leans on the Heller opinion to support her position that Massachusetts’ law banning possession of stun guns violates the Second Amendment:

Heller could not be clearer on the point that “Arms”—as that word appears in the Second Amendment—includes, prima facie, bearable weapons that came into existence after 1789. And, just like the modern “handgun” at issue in Heller, a stun gun is an instrument designed to be borne “for defense, or to cast at or strike another.” Heller, 554 U.S. at 581.

And, like the modern handgun at issue in Heller, a stun gun may be kept in a location (such as a purse) “that is readily accessible in an emergency” and that may be utilized by “those without the upper-body strength to lift and aim” a heavier weapon.” Heller, 554 U.S. at 629. Stun guns thus share many of the features—albeit virtually none of the lethality—that make handguns so popular as weapons of self-defense.

The Massachusetts Supreme Court does not explain why a stun gun—a weapon designed not to kill or maim and is almost never fatal—could be banned in accord with Heller as an instrumentality designed and constructed to produce death or great bodily harm, while handguns, which cause well over 60,000 deaths and injuries in the United States each year, are the quintessential self-defense weapon for Second Amendment purposes.  

Individual self-defense is “the central component” of the Second Amendment itself. Although the “need” for self-defense may be “most acute” inside the home, it cannot be that the right itself simply evaporates at the threshold. Confrontations are not limited to the home. And [b]ecause the statute in question prohibits a class of weapons entirely, the approach taken by the [Massachusetts Supreme Court] would afford the petitioner no Second Amendment protection even if she had been arrested for possessing a stun gun while in the act of fending off her abuser inside whatever place she called “home.”

Presenting Pathos

Caetano reinforces her legal arguments with factual ones, reminding the Court over and over again that she carried the stun gun for a very particular reason:

The petitioner carried a stun gun for purposes of self-defense in case of further confrontation from her abusive former partner.

The petitioner told the police that the stun gun was for self-defense against her violate and abusive former partner.

The petitioner testified that the stun gun was for self-defense against her abuser, whom she had previously sought to keep at bay with restraining orders. The petitioner further testified that she had displayed the stun gun to fend off her abuser when confronted by him outside her place of employment....

Interesting Imagery

[The Massachusetts Supreme Court’s] conception of the Second Amendment—as a sort of fossilized relic trapped in amber—permeates [its] opinion in this case....”

Untethered to Heller’s definitional mooring, the [Massachusetts Supreme Court] reaches a result...which conflicts directly with the only other reported case to have considered this precise question.”

The Second Amendment is not a popularity contest.

My Favorite Passage

My favorite passage in the Caetano brief is the final paragraph. It is a mix of these three writing techniques, and others, and is an excellent example of going out with a bang (pun intended)!

In a parting shot, the [Massachusetts Supreme Court] says its affirmance of the petitioner’s conviction will not affect her right to bear arms because barring any cause for disqualification,’ she could have applied for a license to carry a firearm, or carried mace or pepper spray instead. Cold comfort. The statutes cited [by the Massachusetts Supreme Court] deem the petitioner to now be a prohibited person who is disqualified as a result of the conviction affirmed below from ever obtaining a firearm license, or from purchasing or possessing self-defense spray. The petition should be granted because, by reaching a result that violates the petitioner’s Second Amendment right to bear arms in case of confrontation, the [Massachusetts Supreme Court] renders its own suggested state-law self-defense alternatives infeasible.