Inconsistent and Repugnant

Ragers after oral arguments.

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On today’s episode, David and Sarah break down the most interesting Supreme Court argument of this term and what it means for the future of double jeopardy law. But first, they have to shout out the dating site that is the AO comment section. Also on the docket:

-Mistrials vs. double jeopardy

-Federal rights and state interpretations

-The coolest word you’ve never used

-David calls for thoughtful comments

-How to lose with valor at SCOTUS

-Fifth circuit on the brain

-A second bite of the Rahimi apple

-Revealing AO’s next long-awaited guest

Show notes:

-SNL: Weights and Measures with Nate Bargatze

-McElrath v. Georgia

-Blockburger v. United States

-Fifth Circuit and Rahimi

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Comments (88)
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  1. David Welker

    What really strikes me here is just how little due process David French thinks is required to deprive people of their Second Amendment rights.

    He goes on a rant about “responsible” but if you think about it, if the only thing required to deprive someone of their First Amendment right was the subjective opinion that they aren’t being responsible, then we wouldn’t have a First Amendment.

    It seems rather clear that David French has largely, though perhaps not completely, turned against the Second Amendment. As someone who thinks this is an important right, it is disappointing to hear his point of view on this.

    I do believe that people who have ACTUALLY used violence against their domestic partners should lose their Second Amendment rights, at least for a time. But not like this.

    I especially don’t think the signing of an agreement is persuasive. People who are desperate to retain a relationship that they are afraid of losing might just sign anything. Obviously, Rahimi is an awful defendant and his lawyer was an awful lawyer. But that shouldn’t determine the rights of everyone else.

    Anyway, what a disappointing situation. I am sorry to see such a casual disregard of the 2nd Amendment on David French’s part. Perceived irresponsibility is a way too subjective basis for depriving someone of a right. French comes up with a hypothetical where someone agreeing to a restraining order is “irresponsible” but I say, you can’t know that. Sweeping with a rather broad brush there, aren’t you Mr. French???

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    1. Bobby D

      This accusation seems misplaced.

      The term “responsible” is set forth in the standard articulated by Heller. That portion of Heller is quoted multiple times in Bruen. It’s part of the applicable legal standard; not something invented by David.

      Second, you seem to misunderstand the process for obtaining a protective order. There’s nothing subjective about it. I can only speak for my state, but I suspect that it’s similar elsewhere. The petitioner bears the burden of persuasion and most show by objective evidence that such an order is necessary, generally by a preponderance of the evidence or clear and convincing evidence. In nearly all cases, the proceeding is adversarial, such that the other party has an opportunity to be heard and to contest the evidence presented by the petitioner. In certain circumstances, a court may grant temporary relief based on an evidentiary showing in an ex parte proceeding, but such relief would be limited in time to give the other party a reasonable opportunity to oppose. In my area, petitions for protective orders are only granted about half of the time.

      Lastly, on an agreed protective order, the party agreeing to it is not merely consenting to the legal effect of the order. The party is also agreeing to the truth of the underlying factual allegations. No one does this to keep a relationship together. You do it because the alleged facts are true and you have no defense. After all, in most cases, there are underlying police reports to support the request for the protective order.

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  2. Steven.Mumford15

    Another Engineer listener to the tally. Comforted to know I’m not the only one crazy enough who, after a day of engineering, listens to lawyer podcasts and tries to understand Standing doctrine

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  3. Rex Black

    I've listened to every episode since episode 1. (The one with the great audio. 😀) I'm another engineer listener.

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  4. Kcarrick

    Long time listener here. I don't think I've ever posted before but felt the need to add one more tally to the engineer listener here. It's been fascinating to learn about all aspects of the law and "lawyering". Thanks to Sarah, Adaam, David, and all the rest!

    Kyle

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    1. Richard Krumhansl

      Another engineer here!

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    2. Avatar photo
      Jeffrey Ward

      Please address Moore v. US ASAP! Forget tortured first, second, fourth et al amendment cases and get to the real stuff: when is income realized!

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      1. Bobby D

        I haven’t followed that case closely. But is that the question up for consideration. I’d think that the question would be when certain income is taxable, even if it hasn’t been realized.

        That said, there are all kinds of privately held investments where you’re required to pay taxes on income that hasn’t yet been realized.

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  5. Ejm

    A few pods ago you discussed the phrase "dead as a doornail"-- the best commentary on this topic (of which I am aware) was written by Dickens--

    "Marley was dead, to begin with. There is no doubt whatever about that. The register of his burial was signed by the clergyman, the clerk, the undertaker, and the chief mourner. Scrooge signed it. And Scrooge’s name was good upon ‘Change for anything he chose to put his hand to. Old Marley was as dead as a door-nail.

    Mind! I don’t mean to say that I know, of my own knowledge, what there is particularly dead about a door-nail. I might have been inclined, myself, to regard a coffin-nail as the deadest piece of ironmongery in the trade. But the wisdom of our ancestors is in the simile; and my unhallowed hands shall not disturb it, or the Country’s done for. You will, therefore, permit me to repeat, emphatically, that Marley was as dead as a door-nail.

    Ed Murphy

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  6. Julia Saadallah

    Engineer listeners got the love this episode, which is great. Still waiting to hear a little recognition for [all the] the dedicated middle school French teacher listener(s) out there. Always grateful for the thoughtful conversation, merci!

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  7. Chad.Ingels

    Farmer listener here. Thanks for sharing the SNL Weights and Measures skit. That was great!

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  8. Jason Jewell

    Thanks for the great work, as always!

    A matter of some great legal importance for the AO team to consider. Worth your time?

    https://babylonbee.com/news/texas-court-rules-marriage-invalid-if-cotton-eyed-joe-not-played-at-wedding-reception

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  9. Ben

    Hello Sarah and David!

    Thank you so much for a great job on Advisory Opinions and The Dispatch. You are fantastic!

    I have served over twenty years as a highest level trial court judge in a large state.

    I attended approximately 15 different trainings for DV civil orders in mandatory judicial training classes, such as judicial conferences sponsored by our state judges association. I will give only a few examples to save space, but they are typical of my judicial class training.

    I attended a judicial training class in which the speaker stated in a domestic violence case the victim should be believed and is more credible than the accused because the victim is usually smaller in height and weight than the accused. This speaker travelled across the country to speak to judge in other states. There were over a hundred trial judges present at the meeting and no one spoke out.

    I attended a judicial class in which the speaker used a straw man technique to tell judges how to rule in DV cases. He said "anyone who has seen a DV petition in which everything is a lie, raise your hand", to demonstrate that the petitions are reliable. One could write the correct names on the petition and pass this speaker's test. There were hundreds of trial judges present and no one spoke out.

    I have heard from many speakers like this, advising how to rule in favor of victims. Never were we instructed about how a judge can or should be fair in these proceedings or listen to both sides. Also of note this is this is the only area of the law that judges in our state are instructed in classes how they should evaluate and weigh evidence and how they should rule.

    Often the activists presented as speakers in these classes show news media articles or video of outrageous domestic violence acts and warn that that not issuing protection orders can result in bad publicity for the judge. Naturally, I have heard judges volunteer in these classes during hypotheticals, that even if a victims story didn't sound right, they error on the side of caution and safety to prevent being the next negative media object.

    I learned these many and varied instructors were being funded to teach these precepts by federal legislation (VAWA) a worthy and fair sounding title for legislation.

    Also remember a vast majority of litigants don't have an attorney at these hearings. They can't afford them. Often they use this process to obtain custody or home to avoid the cost of an attorney in an expensive divorce.

    Also consider in these hearings the petitioner can have secondary gains regarding truth, because the judge can and is encouraged in these numerous trainings to remove the accused from their house and to award child custody.

    Also consider in these classes judges may not allow parties to call witnesses to testify, and often base rulings on statements or affidavits submitted without the benefit of cross examination. These hearings have analogs to the college sexual violence hearings.

    However in many states the definition of domestic violence is far more sweeping than in the college sexual violence hearings. Or as I learned from one of your recent podcast, lack of hearing. Any level of acts can result in a DV protection order-regardless of gender. People who can petition include people in or having a previous dating relationship, or previously or currently resided together (think ex college roommate!) . If someone, man or woman, throws a dinner roll at the dinner table at the spouse or partner, the judge is required to make a finding of assault and thus domestic violence, and then obligated to issue a protection order. Likewise an uninvited push in the heat of an argument requires the judge to find domestic violence and issue a protection order with all these consequences listed above. And of course, losing the right to possess firearms. So many of these domestic violence cases wouldn't see the light of day in criminal court, even assuming all accusations are true. This is a point that is not commonly discussed.

    The petitioners will often have assistance from a victim advocate provided from at least in part federal funding. These advocates will issue pamphlets in the courthouse or state in court that domestic violence includes behavior like insulting someone or controlling their thoughts or money. I've had to respond this is not the statutory definition of domestic violence. Perhaps in other states the definition of domestic violence justifying a restraining order is broader and includes controlling behavior or verbal abuse that is not physically threatening?

    I have seen on many (over a hundred) occasions petitioners ask to vacate a protection order and recant testimony and admit they were not telling the truth. The instructors teaching these judicial classes know this happens often, so they have a standard non-nuanced response, teaching judges that in all cases it's because the respondent threatened the petitioner. One thing we do know is that the petitioner was either lying in the petition or when she recants.

    Also consider that in many of these proceedings, the accused is just trying to cooperate or avoiding stress of court or hoping to preserve a marriage and agrees to the protection order, or doesn't appear in court. I have seen this hundreds of times.

    Also my experience is that most judges were not even aware that a person would be losing firearm rights if a protection order was entered. Judges don't warn people in court of the firearm consequences. I have noticed recently in some form orders there is boilerplate warning of firearm consequences hidden in pages and pages of a restraining order.

    Most of the DV cases are done on busy dockets where the hurried judge is trying to get through many hearings.

    Domestic violence is wrong and depraved and we must protect those subjected to it. I was always honored to help victims. But these facts must be known before people jump to an automatic conclusion that a person had a fair opportunity and was afforded due process every time a civil protection order is entered. The devil is in the details which I think is not often discussed.

    Sarah and David I have the upmost respect for your knowledge and respect and listen to all your podcasts. You mentioned women and men having different experiences with domestic violence civil actions. I don't doubt your experience. Frankly, it is my experience after all these years that women are actually more critical of the DV civil process then men. It is also my experience that my opinion is shared by many other in the legal system such as other judges and attorneys. It is my experience that other women judges have the same observations that I have made in this letter.

    You also mentioned in the podcast of the viewpoint of men's groups regarding these issues. I get it and have seen extreme and incorrect views from such men's groups. But the observations I make above are from men and women, and not just people who are subject to the laws, but from officers of the court such as judges and attorneys. So I would submit when we analyze the process, that we get away from how it is perceived by groups or genders, but instead address the specific process itself.

    Also, if you understandably need some verification from just my one post, please read the law review articles in Judge Ho's decisions for corroboration of the specifics of the DV process. I believe this is not just a problem with perception by those subjected to the orders.

    Also keep in mind the following. There is no statute of limitations applicable to civil protection orders. A judge must issue a protection order if there is a finding of physical force or threat of force even if it it occurred ten years in the past. A spouse trying to quickly gain possession of a house without going through a divorce process can initiate a stream lined dv case and assert his spouse used or threatened force, such as throwing a shoe at him, four years ago, and the judge must issue a protection order.

    Also consider the trauma of someone removed from their house and having to appear in less than two weeks to court. The lucky ones will be able to move into a hotel without their physical effects or papers. Many are poor and will sleep in cars or couches. Hardly a good situation to prepare a defense for a hearing in less than two weeks.

    David pointed out that in the Rahimi case certain statistics were provided by the Solicitor General that seemed to validate the domestic violence civil process. I have not seen these statistics and am impressed that you both took the time to listen to the oral argument in that case. You pointed out the advocacy was skewed in favor of the accomplished Solicitor General 9000 so I wonder if that advantage included the record provided as to specifically what occurs in DV civil cases.

    Below is an article about Judge Ho's decisions regarding civil DV (domestic violence) hearings which serves as a nice source to find these decisions. The Rahimi decision includes law review articles that set out New Jersey trial judges rulings in real cases. They ruled as they were instructed in classes, including a protection order for a spouse who said he was no longer attracted or in love with his spouse. I agree Rahimi is likely to be overturned because of the facts of that case, but that is a different question than whether it is constitutional to forfeit firearm rights whenever a domestic violence protection order is issued.

    https://www.lawdork.com/p/fifth-circuit-james-ho-defends-rahimi-rulingShow less

    Please feel free to dm me if any questions.

    Keep up the great work! No other show comes close!Show lessShow less

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  10. Kevin H

    Based upon the story you shared I suggest for AO merch you have a shirt that says “Not a lawyer but I listen to a lot of AO” As a non lawyer or even STEM guy I would wear it.

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