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.