Fourth Amendment and FDCPA: Second Amendment Update: DC Circuit Denies En Banc Hearing (translation: good news!)

Wednesday, May 9, 2007

Second Amendment Update: DC Circuit Denies En Banc Hearing (translation: good news!)

After the Parker v. District of Columbia decision came down firmly in favor of an individual right to keep and bear arms under the Second Amendment to the U.S. Constitution, Mayor Fenty and his fellow professional gun haters requested that all ten judges of the D.C. Circuit review the three-judge panel's decision. This is officially called a petition for rehearing en banc, and it's the only way to get a panel decision reversed, other than going to the Supreme Court. Also, an en banc decision can recede from (translation: change the court's mind) prior panel decisions. Appellate courts hardly ever grant these requests, and this one was no exception. The D.C. Circuit voted 6-4 to leave the panel opinion standing.

Those voting to secure our Second Amendment rights were Circuit Judges Ginsburg, Sentelle, Henderson, Brown, Griffith, and Kavanaugh. Those voting to put our Second Amendment rights in jeopardy were Circuit Judges Randolph, Rogers, Tatel, and Garland.

Now that the collective brain of the D.C. Circuit has come to its senses about constitutional plain language, not to mention the District of Columbia's willful idiocy of denying arms to the law-abiding while criminals buy or steal any weapon they want, the only thing Fenty and Comrades can do is to take it to the Supremes. I'm not sure whether we should want that or not. True, the Supremes commonsensically ruled the ban on revolting partial-birth abortions constitutional--but before that, they nonsensically let their religious belief in global warming dictate their ruling in the EPA case. Wish we could wait and see if Justice Stevens retires before Bush 43 has to. As the Capital Steps' parody of that West Side Story song goes--"Scaliaaaah! Oh, give me just one more Scalia!"

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Secret Decoder Ring

AO: Area of Operations.
Blog Post Format: Most blog posts are summaries of court cases covering either the Fourth Amedment or FDCPA, my two main areas of legal interest. I give each post a cute title, followed by the "style" (name of the case, nearly always in the form of Somebody v. Anybody), the court deciding the case, file number so you can look it up on the court's website, LEXIS cite, lower court if any, judge(s) deciding the case, and date the case was decided. Then there are sections called Long Story Short, Facts, Procedure, Decision, and Editorial, explained in separate entries. I concentrate on cases from the federal courts and the General Court of Justice of North Carolina, Appellate Division, because that's my primary AO.
CA: Collection agency, a third party who helps a creditor collect defaulted debts. Also means a buyer of defaulted debt who then tries to collect same (see JDB). CAs are supposed to follow FDCPA and similar state laws. Many CAs are good citizens, some are scofflaws who think compliance is for sissies, and still others are little more than organized crime fronts. These last two groups keep me in business.
CI: Confidential informants, as those who benefit from the information call them. Those who do not benefit from them (criminals and codefendants) call them snitches.
CS: Tear gas, sometimes called "mace" and still carried by the uninformed for personal defense. CS is useful for "crowd management" but compared to OC it is Glade Air Freshener. Try both and see.
Decision: What the court decided about the case, and why. I try to translate the legal hoo-ha into something understandable, with varying success.
DT: Defensive Tactics, how LEOs protect themselves. See SCAT.
Editorial: After restraining myself to being as accurate and fair as possible when telling you about the case itself, this is the rant that's been building up the whole time. This is strictly my doing and does NOT repeat NOT reflect anybody else's opinion. In Fourth Amendment cases, I come from the point of view of a former criminal defense lawyer who is now a part-time deputy sheriff, so I will tend to throw in practical suggestions for my brother and sister officers. In FDCPA cases, I'm a consumer lawyer if there ever was one, and I have had dealings with some of the "frequent fliers" who get sued often. I also know of many collection professionals who do their best to follow the law, and I know there's "holding on every play," so I can be fair to the Dark Side sometimes.
Facts: Here I try to condense the facts in the case that are important to the Fourth Amendment or FDCPA issues that the court has to decide. Many cases have other things going on in them, such as in a criminal case, the defendant is probably appealing not only the search and seizure but also his sentence, whether the evidence supported the crime he was convicted of, whether certain evidence should have been admitted or not at trial, jury issues, and on and on. Just dealing with central issues is boring enough so I spare you all that, but I also give you the information you need to look up the case yourself if you want to read the whole thing.
FDCPA: Fair Debt Collection Practices Act, the federal law that protects consumers from abuse and deception, sort of
Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
General Junk: A post not covering a Fourth Amendment or FDCPA case, but instead an editorial or rant on something of interest to me that needs talking about.
How I Find Cases: Pretty simple; I log onto LEXIS and search all federal courts for keywords "fourth amendment" or "fdcpa" in the last few weeks or a month. In a typical month, LEXIS will turn up 250 to 300 Fourth Amendment cases from the Supreme Court, Court of Appeals, and District Courts put together. You see why I concentrate on appellate cases! There will be over 70 of those in a month, but about half of them are "unpublished," that is, not important or different enough from preceding cases to bother writing a big opinion about, just a short opinion that usually cannot be used for precedent. So it works out to one or two published cases a day, and each of those takes an hour or two for me to summarize, which is manageable. FDCPA cases aren't nearly as numerous, 20 to 30 a month, only three or four of them from the Court of Appeals. Now you see why I have the time to cover the district courts' FDCPA decisions!
IAD: Immediate action drill. Primarily a firearms term for what you train to do instinctively when your gun does not fire upon pulling the trigger, e.g., tap the magazine bottom, rack the slide/bolt, etc. "IAD" has come to mean any immediate response to an unfavorable event.
Immunity, absolute: This protects you from suit and damages if you had a legal privilege to do something that you could normally get sued for. Privileges are only available in specific situations and for very good reasons. For example, judges cannot be sued for anything they do in their official capacities, else nobody would be a judge. People involved in a case can say nearly anything about other people in the same case, because the need for open debate overrides the need to protect reputations. Immunity protects you from trial as well as damages (as opposed to a "defense" that protects you only from damages), so if the trial court denies immunity, you can usually appeal immediately instead of waiting for final judgment.
Immunity, qualified: This protects most government officials most of the time, "all but the plainly incompetent and those who knowingly violate the law." Unless a plaintiff can prove that the a reasonable officer should have known that their actions violated an established right, then the officer walks. Like absolute immunity, it is supposed to protect you from trial and most of the time can be appealed before trial. Unlike absolute immunity, you have to prove it, which is why it's "qualified," and may require a trial if the facts are in dispute.
JDB: Junk debt buyer, the more accurate term for "distressed receivables management firm." JDBs buy old defaulted debt for pennies on the dollar (formerly even LESS than a penny but most portfolios have been bid up from the old levels) and try to collect them. If JDBs have a valid account and use lawful means to collect them, that's nice. When JDBs start pulling stunts like filing lawsuits after statutes of limitation have expired and hoping people will default, then I start to get annoyed--and it can be very expensive to have ME annoyed at you. Some JDBs are basically criminal outfits that fabricate credit card accounts that never existed and fake checks that never bounced and try to collect them. This is affectionately known as mail and wire fraud. Some will also make up nonexistent unpaid utility bills and stick them on peoples' credit reports, preventing them from closing on their house until they've paid. This is extortion. Don't fall for it; go to the police.
LEO: Law enforcement officer, one specially trained in the criminal law and in the use of force. The hallmarks of a true LEO are a badge (and often a uniform) signifying an oath to protect the Constitution and all laws of the LEO's jurisdiction not inconsistent with it, and the power to arrest, to take a person into custody for commencement of prosecution. LEOs may use the force reasonably necessary to effect arrests and to protect themselves and the innocent from harm. Usually LEOs are authorized to carry weapons and means of restraint. Most LEOs work for federal, state, or local governments, but some states authorize company police officers who have arrest powers only on company property.
Long Story Short: A few lines giving you a snapshot of the key decision in the case, followed by a statement of what states have to follow the decision. Nobody else has to follow a U.S. District Court decision, and a decision of the U.S. Court of Appeals only binds the states in the Circuit that wrote the opinion. Since not everybody (including me) can remember which states are in what Circuits, I just give the postal abbreviations for the states, example "Binding in AL, FL, GA" = the opinion was from the Eleventh Circuit, which covers those states. North Carolina Court of Appeals decisions bind all the trial courts of the state, and North Carolina Supreme Court decisions bind all other North Carolina state courts.
Narc: LEO who specializes in enforcing drug laws. Even though a pharmacist would probably not consider most illegal drugs to be "narcotics," the term has stuck. Narcs often work very dangerous undercover assignments and none of them drive confiscated Ferraris.
OC: Oleoresin capsicum, the official name for pepper spray (which see).
Pepper spray: Essentially very concentrated cayenne pepper in sprayable form, also called OC. On contact with skin, OC causes a burning sensation (like your face is on fire) and sometimes inflammation (which may cause eyelids to close). The effects are only temporary, and it has no effect at all on some people, but often will distract or incapacitate the subject enough for the officer to control them without injury. Part of the OC training program is for the officer to get sprayed with it, a major bonding experience. Some sprays mix OC with CS or other agents, but pure OC is good enough for me. You can even squirt it in your chili, making it quite possibly Nature's most perfect food.
Procedure: "Who is suing whom for what," and in which court. Here I try to give the legal standpoint of the case, such as which crime the defendant is charged with, the type of motion being decided, the judgment of the court, and the court about to be appealed to, if any. If the case I'm summarizing gives the statute numbers of any laws at issue, I'll pass them along. Because I am a lawyer and not a normal person, I forget that household words to me are inscrutable technicalities to others, so post a comment if you don't understand something and I'll try to translate.
SCAT: Subject Control and Arrest Techniques, the North Carolina "martial art" of grappling, strikes, pressure points, impact weapons, chemical irritants, and restraint devices to keep the officer from harm and bring the subject under control. Some still call it DT, or defensive tactics, but SCAT is better because you can't just "defend" and expect to succeed.
UC: Undercover (officer). Refers to LEOs who are pretending to be what they are not, such as drug dealers/buyers, prostitutes/clients, terrorists, and so on. NOT to be confused with CI, confidential informant, a non-LEO person who has information about crimes and wants to remain anonymous, aka "snitch."
UOF: Use of force. Not nearly as much fun as it looks on TV, and a lot more paperwork.
USCA: United States Court of Appeals, often erroneously called the "Circuit Courts of Appeal" but it is really just one court that happens to be divided into different areas. This court has appellate jurisdiction from the U.S. District Courts and other federal trial courts. Most of the Fourth Amendment Blog covers USCA cases. There are eleven groups of states called circuits, and the District of Columbia is its own circuit. I just add the circuit number after the abbreviation, example USCA-1 = United States Court of Appeals for the First Circuit. A "thirteenth" Federal Circuit has nationwide jurisdiction over some specialized federal courts, which don't usually decide Fourth Amendment or FDCPA cases.
USCJ: United States Circuit Judge. I use the same abbreviation system for them, example USCJ-4 = United States Circuit Judge, Fourth Circuit. Circuit Judges are "Article III" judges, appointed for life, and are pretty scholarly personnel, so even the ones you don't agree with can be instructive. Other Article III judges, such as District Court judges, can "sit by designation" on a case-by-case invitation basis, both to help with the workload and to get a different point of view.
USDC: United States District Court. There are from one to four of them in each state. If a state has only one federal judicial district, I use a three-letter abbreviation, example CTD = Connecticut District. More than one, I use four letters, example NCED = North Carolina, Eastern District. Most of the FDCPA Blog covers District Court opinions because FDCPA cases only rarely get to the Court of Appeals.
USDJ: United States District Judge. I use the same abbreviation system for them, example USDJ-MED = United States District Judge, Maine District. District Judges are "Article III" judges, appointed for life, and are the general-purpose trial judges of the federal courts.
USMJ: United States Magistrate Judge. Again, the same abbreviation system, example USMJ-FLSD = United States Magistrate Judge, Florida, Southern District. Magistrate Judges, sometimes affectionately called "mags" when they are not around, are "Article I" judges appointed for limited terms, but in real life, if they don't screw up too often, get reappointed as long as they want to, or promoted to District Judge. Magistrate Judges are usually the ones to issue warrants, preside over misdemeanor cases, decide motions that District Judges refer to them, and by consent of the parties can preside over civil trials.