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!

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! 

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] which...is 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.

"Come at the King, You Best Not Miss"

Texas judges and justices seem to write some of the more entertaining judicial opinions. We've seen Justice Willett's Lion King concurrence and dissent in El-Ali v. State and Justice Lehrmann's citation to The Big Lebowski on prior restraint.

Now, we get Judge Newell of the Texas Court of Criminal Appeals quoting The Wire in the high-profile criminal case against former Texas governor Rick Perry. I wrote about the Perry case several years ago when Perry's legal team filed a motion to dismiss the charges and contrasted Perry's lack of power over the purse with the almost absolute power exercised by Caesar Augustus and Louis XIV.

The Court of Criminal Appeals recently dismissed the indictment against Perry. Judge Newell, in concurring, cited Omar Little, notorious robber of drug dealers on HBO's The Wire:

"Come at the king, you best not miss."

You can read the majority opinion here and Judge Newell's concurrence here.

Happy Friday!

In Memoriam: The Writing of Justice Scalia

Steve Petteway
Collection of  the Supreme Court
of the United States

As we all know, Justice Scalia passed away unexpectedly last weekend at the age of 79. Justice Scalia's ideologies and judicial philosophies made him a lightning rod for criticism, even in death. Those ideologies aside, most of us who study legal writing agree that Justice Scalia was one of the Court's best writers. Acerbic at times, yes. But always pointed, powerful, precise--just what we're looking for in good legal writing.  Especially in dissents, which Justice Scalia was famous for.

In remembering her friend, Justice Ginsberg said that Justice Scalia's dissents made her opinions "notably better" than the drafts she initially circulated.   

My favorite piece of advocacy (yes--advocacy) from Justice Scalia is his Atkins dissent, which includes four of the most powerful sentences I've ever read. The Atkins majority held that the 8th Amendment's prohibition again cruel and unusual punishment bars the execution of the mentally retarded (the Court's words). Justice Scalia turned the tables, advancing his opinion that Atkins' crime was the only thing cruel and unusual in the case:  

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs. 

I'm also fond of Justice Scalia's "monster" critique of the Lemon test in his Lamb's Chapel dissent:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman, conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so....

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will....Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.  

As for one-liners, many have cited Justice Scalia's opening in Block, issued while he was a member of the D.C. Circuit, as his best: 

This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that "No man should see how laws or sausages are made."

In a 2013 interview, Justice Scalia told Jennifer Senior of New York Magazine that his favorite one-liner was the "wolf line" from his dissent in Morrison. The Morrison case involved a separation of powers question, and in his dissent, Justice Scalia wrote: 

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that a gradual concentration of the several powers in the same department, can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

In recent years, Justice Scalia gave us some fun phrases: argle-bargle (from Windsor), jiggery-pokery and pure applesauce (from Burwell), and judicial Putsch (from Obergefell). His use of language even inspired Slate to create Antonin Scalia's "Sick Burn" Generator. My insult?

One would think that Megan's arrogance is a genetic panopticon. Words no longer have meaning.

Apropos? Ironic? Maybe both, but also "pure" Scalia.

Justice Willett, Mufasa, and the Shadowy Place

The written opinions of Justice Willett of the Texas Supreme Court

Justice Don Willett

never disappoint--at least for fans of good legal writing. Justice Willett's writing style, devoid of the legalese that plagues so many judicial opinions, is crystal clear, and his opinions are conversational and interesting.

A few weeks ago, the Texas Supreme Court decided a high-profile case involving Texas cheerleaders' right to put Bible verses on the signs they hold up at sporting events. The Court didn't make any substantive rulings on the merits as the case was before the Court on a mootness issue, In his concurrence, Justice Willett evokes images from Disney's The Lion King to (gently) suggest to the litigants and the trial court that the Court needs clarification on the trial court's rulings before the case (presumably) comes back to the highest Texas Court on appeal again.

The concurrence is worthy of a read, even if you care nothing about the issues in the case. Justice Willett's writing draws the reader in, like a good novel you can't put down. I can't do it writing "justice," so I'll just quote some of my favorite parts and let you read it for yourself:

One of the more memorable scenes in The Lion King occurs as Mufasa and Simba sit high atop Pride Rock overlooking Mufasa’s kingdom. In this granddaddy of all father-son moments, Mufasa shows Simba the territory he will inherit as king: “A king’s time as ruler rises and falls like the sun. One day, Simba, the sun will set on my time here, and will rise with you as the new king.” Simba is awestruck: “And this will all be mine?” “Everything,” says Mufasa. “Everything the light touches,” murmurs Simba in wonder. But then Simba spots dimness in the distance and turns to Mufasa for an explanation: “What about that shadowy place?” Mufasa replies, “That’s beyond our borders. You must never go there, Simba.” 

In narrowly deciding that the school district’s policy change did not moot the controversy in this case, the Court today rightfully stays within the borders of its authority, and I concur in full. I write separately, however, to ask, “What about that shadowy place?”

*******

Bottom line: We don’t know. What does the trial court’s order accomplish? What claims have been preserved? What claims have been waived? In our pitched adversarial system, it is not uncommon for litigants to talk past each other, and uncertainty pervades the parties’ briefs to this Court. But answers to these questions are critical for they speak to the fundamental free speech and free exercise rights enshrined in our Constitution. Because this is an interlocutory appeal, the Court appropriately does not address those core merits issues, rendering Mufasa’s admonition that Simba “never go there” inapposite for the moment. 

But if this case returns to the trial court, a future appellate court, including this one, may well be required to go there. My concern is that this case may return to the trial court for a final decision only to reappear on our docket with no clarity as to what this order achieves and what claims are actually live. If that situation arises, the parties and trial court would do well to confront the shadowy place in this litigation and clarify with precision the status of this order and the cheerleaders’ claims.

The case is Matthews v. Kountze Independent School District. You can find all opinions in the case here.

Happy Friday!

The Flamethrowers? Really? Act

Acts on the books here in the U.S. have some entertaining names:

Rep. Eliot Engel

--The Popcorn Promotion, Research, and Consumer Information Act (1996)
--The Y2K Act (1999)
--Death on the High Seas Act (1920)

But a new act sponsored by New York Congressperson Eliot Engel might be, as MSNBC's Steve Benen says, "the best-named legislation in the history of the U.S. Congress":

The Flamethrowers? Really? Act

Engel is apparently a big fan of Saturday Night Live and Seth Meyers, who inspired the act's name. Only two U.S. states regulate the purchase of flamethrowers, but Engel hopes to change that by introducing this legislation, which would put some purchasing restrictions on these weapons. The Act is currently in committee.

Benen's article on the Flamethrowers? Really? Act is here.

Happy Friday!