In Spartanburg County, South Carolina, on Interstate 85, police officers stop vehicles for traveling in the left lane while not actively passing, touching the white fog line, or following too closely. This annual crackdown is called Operation Rolling Thunder, and the police demand perfection.

Any infraction, no matter how minor, can lead to a roadside interrogation and warrantless search. However, a 21-month fight for transparency shows participating agencies play loose with South Carolina's Freedom of Information Act (FOIA), which requires the government to perform its business in an "open and public manner."

Motorists must follow state laws with exactness. But the people in charge of enforcement give themselves a pass.

Deny, Deny, Deny

The drawn-out FOIA dispute started on October 11, 2022, less than one week after a five-day blitz that produced nearly $1 million in cash seizures. Our public-interest law firm, the Institute for Justice, requested access to incident reports for all 144 vehicle searches that occurred during the joint operation involving 11 agencies: The Cherokee, Florence, Greenville, and Spartanburg County sheriff's offices; the Duncan, Gaffney, and Wellford police departments; the South Carolina Highway Patrol, Law Enforcement Division, and State Transport Police; and the U.S. Department of Homeland Security.

Our intent was simple. We wanted to check for constitutional violations, which can multiply in the rush to pull over and search as many vehicles as possible within a set time frame. South Carolina agencies have conducted the operation every year since 2006, yet no one has ever done a systematic audit.

Rather than comply with its FOIA obligation, Spartanburg County denied our request without citing any provision in the law. We tried again and then recruited the help of South Carolina resident and attorney Adrianne Turner, who filed a third request in 2023.

It took a lawsuit to finally pry the records loose. Turner filed the special action with outside representation.

Key Findings

The incident reports, released in batches from March through July 2024, show why Spartanburg County was eager to prevent anyone from obtaining them.

• Over 72 percent of vehicle searches during Operation Rolling Thunder in 2022 produced nothing illegal. Officers routinely treated innocent drivers like criminals.
• Carrying any amount of cash is legal, but officers treated currency as contraband. The records describe no single case in which officers found a large amount of cash and did not seize it. All money was presumed dirty.
• Officers pressured property owners to sign roadside abandonment forms, giving up claims to their cash on the spot.
• South Carolina residents mostly got a pass. Officers focused on vehicles with out-of-state plates, rental cars, and commercial buses. Over 83 percent of the criminal suspects identified during warrantless searches lived out of state. Nearly half were from Georgia.
• Black travelers were especially vulnerable. Nearly 74 percent of the suspects identified and 75 percent of the people arrested were black. This is more than triple the South Carolina black population of 25 percent.

Working in the Shadows

While these records shine a light on police conduct, still more secrets remain.

By policy, the Spartanburg County Sheriff's Office and partner agencies do not create incident reports for every search. They only document their "wins" when they find cash or contraband. They do not document their "losses" when they come up empty.

Thanks to this policy, Spartanburg County has no records for 102 of the 144 searches that occurred during Operation Rolling Thunder in 2022. Nowhere do officers describe how they gained probable cause to enter the vehicles where nothing was found. The police open and close investigations and then act like the searches never happened.

This leaves government watchdogs in the dark—by design. They cannot inspect public records that do not exist. Victims cannot cite them in litigation. And police supervisors cannot review them when evaluating job performance.

Even if body camera video exists, there is no paper trail. This lack of recordkeeping undercuts the intent of FOIA. Agencies dodge accountability by simply not summarizing their embarrassing or potentially unconstitutional conduct.

The rigged system is rife with abuse. Available records show that officers routinely order drivers to exit their vehicles and sit in the front seat of a patrol car. If people show signs of "labored breathing," "nervousness," or being "visibly shaken," the police count this toward probable cause.

Officers overlook that anxiety is normal when trapped in a police cruiser without permission to leave. Even people who value their Fourth Amendment right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" can break under pressure and consent to a search.

If travelers refuse, officers can bring K9 units to the scene for open-air sniffs. Having no drugs in the vehicle does not always help. False positives occurred during Operation Rolling Thunder, but the lack of recordkeeping makes a complete audit impossible.

Intimidation, harassment, and misjudgment are easily hidden. The police tell travelers: "If you have nothing to hide, you should let us search." But when the roles are reversed and the public asks questions, agencies suddenly want to remain silent.

The post Operation Rolling Thunder: The Shocking Truth Behind Spartanburg's Traffic Stops appeared first on Reason.com.

After black-clad demonstrators protested Donald Trump's inauguration in an "Anti-Capitalist/Anti-Fascist Bloc" march on January 20, 2017, federal prosecutors in Washington, D.C., charged more than 200 of them with rioting. While 21 defendants pleaded guilty, all of the other cases ended in acquittals, mistrials, or charges dismissed with prejudice. One reason for that fiasco, according to recently filed disciplinary charges, was the discovery that the federal prosecutor who oversaw the cases persistently withheld exculpatory evidence and repeatedly lied about it to judges and defense attorneys.

In a "specification of charges" filed with the D.C. Court of Appeals Board of Professional Responsibility last month, Disciplinary Counsel Hamilton P. Fox III alleges that Jennifer Kerkhoff Muyskens, who is now a federal prosecutor in Utah but previously worked at the U.S. Attorney's Office for the District of Columbia, violated six rules of professional conduct while trying to convict "DisruptJ20" protesters, including many who had not participated in vandalism or violence. Muyskens "knew that most defendants did not commit violent acts themselves," Fox notes, but "she argued that these defendants were still liable for felony rioting and felony property destruction because they joined a criminal conspiracy to use the protest march to further the violence and destruction that occurred."

To support that theory, Muyskens presented video of a DisruptJ20 planning meeting that had been clandestinely recorded by an "operative" from Project Veritas, a conservative group that frequently has been accused of using misleadingly edited videos to portray progressive and leftist organizations in a negative light. Although Muyskens "understood Project Veritas had a reputation for editing videos in a misleading way," Fox says, she initially concealed the source of the video, saying in court that "who provided it is irrelevant." And although Muyskens "knew that Project Veritas had omitted and edited some of its videos" before releasing them, Fox adds, she "did not request or obtain Project Veritas's missing videos or unedited footage."

According to Fox, Muyskens and Metropolitan Police Department (MPD) Detective Greggory Pemberton edited the meeting footage in ways that bolstered the prosecution's case, and Muyskens covered up the extent of those edits. Fox says Muyskens also withheld Project Veritas videos of other DisruptJ20 meetings that would have been helpful to the defense, pretending that they did not exist. And she allegedly concealed the fact that Pemberton, in testimony to a grand jury, had erroneously identified one of the DisruptJ20 defendants as a woman who appears in the video of the planning meeting.

According to the Supreme Court's 1963 ruling in Brady v. Maryland, due process requires prosecutors to share potentially exculpatory evidence with the defense. Fox says Muyskens violated that rule by excising footage and withholding videos that could have been useful in rebutting the prosecution's case.

The material that Muyskens and Pemberton excised from the planning meeting video included footage that would have revealed its provenance. They also cut footage of a phone call in which a Project Veritas infiltrator told a colleague, "I don't think they know anything about the upper echelon stuff."

The excised footage "revealed that the video was filmed as part of Project Veritas's infiltration of DisruptJ20, which tended to undermine the credibility and reliability of the government's evidence," Fox writes. "In addition, the operative's post-meeting report indicated that some DisruptJ20 protest organizers did not know anything about plans or decisions that were being made by an 'upper echelon.' This lack of knowledge supported the non-violent defendants' theory that, assuming a plan to riot existed at all, only a small group was involved, which they knew nothing about. Alternatively, if the operative was discussing protest organizers being unaware of Project Veritas's 'upper echelon' plans, the statements supported…claims that Project Veritas conspired to frame DisruptJ20 defendants for third-party violence, including by possibly inciting violence themselves. Both judges who later considered the issue…found that the complete, unedited footage was exculpatory."

The videos that Muyskens withheld included evidence that, contrary to the prosecution's narrative, the DisruptJ20 protest was supposed to be peaceful. Those videos "were exculpatory," Fox explains, "because they showed that DisruptJ20 planning meetings consistently involved training and instructing protesters how to participate in its unpermitted 'Actions,' including the anti-capitalist march, as non-violent protests, using nonviolence and de-escalation techniques, which supported the non-violent defendants' claim that their intent was merely to peacefully protest."

The undisclosed videos also "showed Project Veritas operatives discussing their infiltration operation of DisruptJ20, which supported the defense's theory that Project Veritas conspired to blame DisruptJ20 for others' misconduct," Fox notes. "For example, the undisclosed videos showed Project Veritas operatives discussing—before the Inauguration protests—how they were providing information on DisruptJ20 to the FBI, how there was likely to be violence from 'outside influencers,' and how DisruptJ20 would 'catch the blame' for outsiders' misconduct because the FBI was 'going to say' that they incited it."

In court, Fox says, Muyskens "falsely said that the government had made only two edits, which were both to redact the identity of the videographer and an undercover officer," and "that, other than the two redactions, the defense had the same videos as the government." She "falsely told the court that she had provided defense counsel with 'the full entirety of those videos from that day.'"

According to Fox, "Pemberton testified falsely that Project Veritas had produced only the four disclosed video segments of the [planning meeting video]" and that "the only editing the government did was to combine the first three video segments into one exhibit to be played at trial." Muyskens and Pemberton "did not disclose how they had edited the original videos they received from Project Veritas," and they did not "disclose that they had omitted from discovery many other videos Project Veritas videos of DisruptJ20's planning meetings."

Muyskens told a judge that Project Veritas had "provided unedited video" at Pemberton's request and that "we posted the video" to the discovery portal. Those statements, Fox says, "were false and misleading." Muyskens also "falsely said that other than redacting the identities of the Project Veritas operative and [the undercover officer], 'the defense has the exact video we have.'" The judge "later found that [Muyskens] 'left a clear impression' that she had disclosed everything that Project Veritas had produced."

Muyskens told another judge that "the government had 'provided the clips as we have them'" and that "'the only editing' by the government 'was to combine the three clips' of the anti-capitalist 'breakout' into a single video exhibit for trial." Those statements also "were false and misleading," Fox says.

Muyskens eventually "acknowledged that the government had additional, undisclosed Project Veritas videos of DisruptJ20's planning meetings." But she "mischaracterized them and falsely suggested that they were irrelevant."

During the investigation of her conduct, Fox says, Muyskens "repeated her false statements and material omissions" regarding the video edits, the withheld videos, her suppression of "relevant information and evidence," her failure to produce grand jury transcripts from the misidentified defendant's case, her "misrepresentations and omissions to the grand jury, the defense, and the court," and her failure to "correct known misrepresentations to the court." She also "made additional false statements and material omissions to falsely explain her conduct." She claimed, for example, that the undisclosed videos "were irrelevant and did not discuss the anti-capitalist march."

Fox says Muyskens' actions violated the District of Columbia's Rules of Professional Conduct in half a dozen ways:

1. She allegedly violated Rule 3.3(a) by "knowingly making false statements, offering false evidence, and failing to correct material false statements to the court."

2. She allegedly violated three sections of Rule 3.4 by "obstructing the defense's access to evidence and altering or concealing evidence, or assisting another person to do so when she reasonably should have known that the evidence was or may have been subject to discovery; knowingly disobeying the court's direct orders to produce information in the government's possession without openly asserting that no valid obligation existed; and/or failing to make reasonably diligent efforts to comply with the defense's discovery requests."

3. She allegedly violated two sections of Rule 3.8 by "intentionally avoiding pursuit of evidence and information because it may have damaged the prosecution's case or aided the defense; and by intentionally failing to disclose to the defense, upon request and at a time when use by the defense was reasonably feasible, evidence and information that she knew or reasonably should have known tended to negate the guilt of the accused or mitigate the offense."

4. She allegedly violated Rule 8.4(a) by "knowingly assisting or inducing another to violate the Rules of Professional Conduct and/or doing so through the acts of another."

5. She allegedly violated Rule 8.4(c) by "engaging in conduct that involved reckless or intentional dishonesty, misrepresentations, deceit, and fraud, which misled the grand jury, the defense, the court, the government, and disciplinary authorities about the
evidence in the government's possession and the government's conduct."

6. She allegedly violated Rule 8.4(d) by "engaging in conduct that seriously interfered with the administration of justice."

Possible sanctions against Muyskens range from "temporary suspension of her law license to full disbarment," Washington City Paper notes. The Washington Post reports that lawyers for Muyskens did not respond to requests for comment and that "Pemberton also did not respond to an inquiry." The U.S. attorney's offices in D.C. and Utah "declined to comment." So did the MPD, which "would not say whether the department has opened an investigation of Pemberton, who now chairs the police labor union."

The failed prosecutions and the disciplinary charges against Muyskens are not the only embarrassments stemming from the Inauguration Day march. In 2021, the Post notes, "the D.C. government agreed to pay $1.6 million to settle two lawsuits" by protesters who argued that the police response to the DisruptJ20 march violated their First Amendment rights.

"It speaks volumes that the District has chosen to settle rather than defend MPD's obviously unconstitutional actions in court," Jeffrey Light, one of the protesters' attorneys, said when the settlement was announced. Scott Michelman, legal director at the American Civil Liberties Union of the District of Columbia, added that "MPD's unconstitutional guilt-by-association policing and excessive force, including the use of chemical weapons, not only injured our clients physically but also chilled their speech and the speech of countless others who wished to exercise their First Amendment rights but feared an unwarranted assault by D.C. police."

The post Prosecutor of Anti-Trump Protesters Allegedly Withheld Exculpatory Evidence and Lied About It appeared first on Reason.com.

Wall Street Journal reporter Evan Gershkovich was released from Russian captivity on Thursday as part of the largest prisoner swap between Russia and Western nations in decades. Gershkovich had been imprisoned for nearly 500 days and was recently sentenced to 16 years in a penal colony.

Gershkovich was arrested in March 2023 while on assignment in Yekaterinburg, Russia. Russian authorities claimed he was obtaining information for the CIA, though the allegations against Gershkovich are widely assumed to be false and have been denied strenuously by the Journal. 

Gershkovich was released around 11:20 a.m. Eastern time at an airport in Ankara, Turkey. Several other prisoners were also released, including Russia-critical journalists Alsu Kurmasheva and Vladimir Kara-Murza, and American former Marine Paul Whelan, who had been imprisoned since 2018. Russian hit man Vadim Krasikov, who was imprisoned in Germany after receiving a life sentence for killing a Chechen rebel, was released back to Russia as part of the deal.

In total, the swap involved two dozen prisoners from at least six countries, according to The Wall Street Journal.

"The exchange is emblematic of a new era of state-sponsored hostage-taking by autocratic governments seeking leverage over rivals. It was negotiated as tensions soared between Russia and the West over the war in Ukraine," the Journal reported on Thursday. "It also offers sobering evidence of the asymmetry between the U.S. and Russia in this new, piratical order. [Russian President Vladimir] Putin can order foreigners plucked from restaurants and hotels and given lengthy prison sentences on spurious charges—something an American leader can't do."

While this is the largest prisoner swap the U.S. has engaged in in recent years to free citizens imprisoned in Russia, it isn't its first. In December 2022, WNBA player Brittney Griner was released in a swap for notorious Russian arms dealer Viktor Bout after being held for almost nine months on drug charges. While securing the release of Griner, Gershkovich, and other American citizens from wrongful Russian captivity is vital, it may also work to incentivize Russian authorities to continue jailing Americans on false charges.

"The deal that secured their freedom was a feat of diplomacy," President Joe Biden said shortly after Thursday's prisoner swap. "Some of these women and men have been unjustly held for years. All have endured unimaginable suffering and uncertainty. Today, their agony is over….I will not stop working until every American wrongfully detained or held hostage around the world is reunited with their family."

The post <i>Wall Street Journal</i> Reporter Evan Gershkovich Released From Russian Captivity appeared first on Reason.com.

The Supreme Court on Friday ruled that the right to a trial by jury and to due process apply to people who face a steep sentencing enhancement under federal law, in a ruling that transfers some power from the hands of judges to the public and will affect many criminal defendants' future punishments.

The procedural history of the case is a bit of a whirlwind. But at its center is Paul Erlinger, who was charged in 2017 with being a felon in possession of a firearm and sentenced to 15 years under the Armed Career Criminal Act (ACCA), which increases the punishment for that offense—felon in possession of a firearm—from a 10-year maximum to a 15-year minimum if the defendant has been convicted previously of three violent felonies or serious drug offenses on separate occasions.

At sentencing came one of the initial twists, when the judge who handed down the 15-year punishment made clear it was inappropriate. Erlinger, who pleaded guilty, had gained steady employment, started a family, and remained drug-free in the more than a decade since his previous convictions, so a five-year sentence, the judge said, would be "fair." But under the ACCA, the court's hands were tied.

Then came the U.S. Court of Appeals for the 7th Circuit, which said shortly thereafter that two of Erlinger's offenses considered for the purposes of the ACCA did not actually qualify as violent felonies or serious drug crimes. Prosecutors, however, were undeterred. They returned to court and invoked convictions related to burglaries Erlinger committed 26 years before the felon in possession of a firearm charge, when he was 18 years old. Erlinger countered that the burglaries in question had been a part of one criminal episode—not distinct events as the ACCA requires—and that, most importantly, a jury would need to make the consequential determination about the separateness of those offenses.

The sentencing court disagreed, ruling it was the judge's decision and that the court was bound by the ACCA, thus reimposing the 15-year sentence that it once again called "unfortunate" and "excessive."

But Justice Neil Gorsuch, writing for the 6–3 majority opinion, explained that Erlinger did indeed have the 5th Amendment and 6th Amendment right to ask a jury whether those offenses were committed separately and if he is therefore vulnerable to the massive increase in incarceration that the sentencing court itself characterized multiple times as unjust. The outcome was at least somewhat predictable when considering yet another twist: After Erlinger appealed on the grounds that his constitutional rights had been violated, the government agreed. But the 7th Circuit still refused to reconsider his sentence, leaving Erlinger to ask the Supreme Court.

Core to Gorsuch's opinion is Apprendi v. New Jersey (2000), a Supreme Court precedent that ruled it was unconstitutional when a judge sentenced a defendant more harshly on the basis that a shooting had allegedly been motivated by racial animus, because no jury considered or made any determination beyond a reasonable doubt on that factor. A jury and a jury only, the Court ruled, may find "facts that increase the prescribed range of penalties to which a criminal defendant is exposed" when it will cause the penalty to exceed the prescribed statutory maximum.

But Gorsuch also says the Court has something else on its side today: history. "Prominent among the reasons colonists cited in the Declaration of Independence for their break with Great Britain was the fact Parliament and the Crown had 'depriv[ed] [them] in many cases, of the benefits of Trial by Jury,'" he writes. "The Fifth and Sixth Amendments placed the jury at the heart of our criminal justice system" in order "to mitigate the risk of prosecutorial overreach and misconduct" and serve as a check on the government.

This is not a novel area for Gorsuch, who has made clear his respect for the right to a trial by jury. Last month, he rebuked the Court's demurral from hearing a case concerning Florida's use of six-person juries as opposed to the traditional, historical practice of using 12-person panels.

Though much has been made of the ideologically fractured nature of the current Court, the decision in Erlinger did not fall neatly along partisan lines. Among the dissenters were Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson, the latter of whom argued that Apprendi—and, as an extension, the case law that has sprung from it—was wrongly decided. "I recognize that many criminal defendants and their advocates prefer the Apprendi regime, which provides some defendants with more procedural protections at sentencing," Jackson writes. "In my view, however, the benefit that some criminal defendants derive from the Apprendi rule in the context of their individual cases is outweighed by the negative systemic effects that Apprendi has wrought," which she says has hamstrung judges and increased sentencing disparities.

"The only thing judges may not do consistent with Apprendi is increase a defendant's exposure to punishment based on their own factfinding," counters Gorsuch. "Does Justice Jackson really think it too much to ask the government to prove its case (as it concedes it must) with reliable evidence before seeking enhanced punishments under a statute like ACCA when the 'practical realit[y]' for defendants like Mr. Erlinger is exposure to an additional decade (or more) in prison?"

The post The Supreme Court Again Strengthens the Right to a Jury Trial in Criminal Sentencing appeared first on Reason.com.

A federal law that Congress enacted in 1994 prohibits gun possession by people subject to domestic violence restraining orders. Since that seems like a no-brainer, many people were dismayed when the U.S. Court of Appeals for the 5th Circuit deemed that provision unconstitutional last year in United States v. Rahimi. But as anyone who reads the majority and concurring opinions in that case can see, there is a striking problem with 18 USC 922(g)(8): It disarms people even when there is little or no evidence that they pose a danger to others.

In an 8–1 decision today, the Supreme Court avoided that issue by noting that the man who challenged his prosecution under Section 922(g)(8), Zackey Rahimi, is a bad dude with an extensive history of violence, including violence against his girlfriend. As applied to people like Rahimi, Chief Justice John Roberts says in the majority opinion, the law is "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test that the Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.

"When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect," Roberts says. The decision does not address the question of whether it is consistent with the Second Amendment to disarm someone without such a judicial finding.

Noting that Rahimi raised a facial challenge, Roberts faults the 5th Circuit for focusing on "hypothetical scenarios where Section 922(g)(8) might raise constitutional  concerns" instead of "consider[ing] the circumstances in which Section 922(g)(8) was most likely to be constitutional." That error, he says, "left the panel slaying a straw man."

As 5th Circuit Judge James Ho emphasized in his Rahimi concurrence, that "straw man" is not merely hypothetical. The "constitutional concerns" to which Roberts alludes derive from the statute's loose requirements for court orders that trigger the gun ban. Under Section 922(g)(8), a restraining order must include at least one of two elements, one of which sweeps broadly enough to encompass individuals with no history of violence or threats.

The first, optional element—a judicial finding that the respondent "represents a credible threat to the physical safety" of his "intimate partner" or that person's child—provides some assurance that the order addresses a real danger, especially since the law requires a hearing in which the respondent has "an opportunity to participate." As Roberts notes, the order against Rahimi included such a finding. But the second, alternative criterion—that the order "by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury"—can be met by the boilerplate language of orders that are routinely granted in divorce cases, whether or not there is good reason to believe the respondent is apt to assault anyone.

In his Rahimi concurrence, Ho noted that protective orders are "often misused as a tactical device in divorce proceedings" and "are granted to virtually all who apply." They are "a tempting target for abuse," he said, and in some cases have been used to disarm the victims of domestic violence, leaving them "in greater danger than before."

In the lone dissent from today's decision, Justice Clarence Thomas likewise notes how easily someone can lose his right to arms under Section 922(g)(8). The provision "does not require a finding that a person has ever committed a crime of domestic violence," he writes. It "is not triggered by a criminal conviction or a person's criminal history." And it "does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order."

Furthermore, Thomas says, the law "strips an individual of his ability to possess firearms and ammunition without any due process," since "the ban is an automatic, uncontestable consequence of certain orders." The Cato Institute made the same basic point about due process in a brief supporting Rahimi's challenge.

Although a hearing is required for the restraining order itself, Thomas notes, "there is no hearing or opportunity to be heard on the statute's applicability, and a court need not decide whether a person should be disarmed under §922(g)(8)." He also points out that the penalties for violating the provision are severe: up to 15 years in prison, plus permanent loss of gun rights based on the felony conviction.

Roberts, who criticizes the 5th Circuit for requiring a "historical twin" rather than a "historical analogue" under the Bruen test, sees precedent for Section 922(g)(8) in "surety" laws that required threatening people to post bonds, which they would forfeit if they became violent. But Thomas does not think those laws are "relevantly similar" to the provision that Rahimi violated.

"Surety laws were, in a nutshell, a fine on certain behavior," Thomas writes. "If a person threatened someone in his community, he was given the choice to either keep the peace or forfeit a sum of money. Surety laws thus shared the same justification as §922(g)(8), but they imposed a far less onerous burden."

In particular, Thomas says, "a surety demand did not alter an individual's right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime." Thomas thinks the government "has not shown that §922(g)(8)'s more severe approach is consistent with our historical tradition of firearm regulation."

Roberts, by contrast, says a prosecution under Section 922(g)(8) can be consistent with that tradition, at least when a judge concludes that someone "poses a credible threat to the physical safety of an intimate partner." The constitutionality of applying Section 922(g)(8) in cases where there was no such finding remains uncertain. Some Second Amendment scholars, such as the Independence Institute's David Kopel, argue that the provision would be constitutional if it were amended to require a finding of dangerousness.

The Court did clarify an important point in a way that could bode well for other challenges to the broad categories of "prohibited persons" who are not allowed to possess firearms, such as cannabis consumers and other illegal drug users. The majority rejected the Biden administration's position that only "responsible" people qualify for Second Amendment rights.

"We reject the Government's contention that Rahimi may be disarmed simply because he is not 'responsible,'" Roberts writes. "'Responsible' is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law."

In Bruen and in District of Columbia v. Heller, the 2008 case in which the Court first explicitly recognized that the Second Amendment guarantees an individual right to armed self-defense, Roberts notes, "we used the term 'responsible' to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right….But those decisions did not define the term and said nothing about the status of citizens who were not 'responsible.' The question was simply not presented."

The post SCOTUS Dodges a Crucial Problem With Disarming People Based on Restraining Orders appeared first on Reason.com.

The job of the prosecutor is to hold the public accountable. But when the tables are turned—when the prosecutor is the one who allegedly flouted the law—it is, paradoxically, enormously difficult for victims to achieve recourse. Lawyers yesterday sparred at the U.S. Court of Appeals for the 5th Circuit over one such barrier preventing someone from suing a former assistant district attorney accused of misconduct so egregious that one judge on the 5th Circuit described it last year as "utterly bonkers."

At the center of the case is Ralph Petty, whose yearslong career included work as both an assistant district attorney and a law clerk—at the same time, for the same judges. In practice, that means his arguments as a prosecutor were sometimes performance art, because, as a law clerk, he had the opportunity to draft the same rulings he sought in court. It doesn't take a lawyer to deduce that the set-up presents troubling implications for due process.

One of Petty's alleged victims, Erma Wilson, would like the opportunity to bring her civil suit against him before a jury. In 2001, she was convicted of cocaine possession after police found a bag of crack on the ground near where she and some friends were gathered. Law enforcement offered to let her off if she implicated the guilty party; she said she didn't know.

Years later, that conviction continues to haunt her. Most notably, it doomed any chance of her fulfilling her lifelong dream of becoming a nurse, because Texas, where she lives, does not approve registered nursing licenses for people found guilty of drug-related crimes.

Wilson's conviction coincided with the beginning of Petty's dual-hat arrangement in Midland County, Texas. Though he was not the lead prosecutor on her case, she alleges he "communicated with and advised fellow prosecutors in the District Attorney's Office" on her prosecution while simultaneously working for Judge John G. Hyde, who presided over her case, giving him "access to documents and information generally unavailable to prosecutors." (Hyde died in 2012.)

"Further undermining confidence in Erma's criminal proceedings, Petty and Judge Hyde engaged in ex parte communications concerning Erma's case," her lawsuit reads. "Consequential motions, such as Erma's motion to suppress, were resolved in the prosecution's favor throughout trial. And despite the weak evidence against her, Erma's motion for a new trial was not granted. Any of these facts by itself undermines the integrity of Erma's trial. Together, these facts eviscerate it." 

Typically prosecutors are protected by absolute immunity, which, as its name implies, is an even more robust shield than qualified immunity. But that issue is not before the 5th Circuit, because Wilson must overcome another barrier: Someone who has been convicted of a crime may not sue under Section 1983—the federal statute that permits lawsuits against state and local government employees for alleged constitutional violations—unless "the conviction or sentence has been reversed on appeal or otherwise declared invalid," wrote Judge Don Willett for the 5th Circuit in December. "The wrinkle here is that Petty's conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence."

But Willett—the same judge who characterized Petty's alleged malfeasance as "utterly bonkers"—did not appear happy with his own ruling, which he said came because his hands were tied by precedent. He invited the 5th Circuit to hear the case en banc, where all the judges on the court convene to reconsider an appeal, as opposed to a three-judge panel (the usual format for evaluating cases).

The court accepted. "The defendants say that [Wilson is] forever barred from invoking that federal cause of action or any other federal cause of action unless she first persuades state officials to grant her relief. If they never do, she can never sue," Jaba Tsitsuashvili, an attorney at the Institute for Justice who is representing Wilson, argued yesterday. "In most circuits, that argument would be rejected, and rightly so."

At the center of the case is Heck v. Humphrey (1994), a Supreme Court precedent that, as Willett noted, forecloses Section 1983 relief for plaintiffs alleging unconstitutional convictions if his or her criminal case was not resolved with "favorable termination." The catch: Most federal appeals courts have established that Heck does not apply when federal habeas relief is no longer available, as is the case with Wilson. The 5th Circuit is an exception.

Perhaps soon it won't be. Yet even if the judges agree with Tsitsuashvili's interpretation of the law, Wilson is not in the clear. She will then have to explain why Petty is not entitled to absolute immunity, which inoculates prosecutors from facing such civil suits if their alleged misconduct was carried out in the scope of their prosecutorial duties. It is nearly impossible to overcome. But Petty may not be a candidate for it, because his malfeasance was technically not committed as a prosecutor. It was committed as a law clerk.

Should Wilson be granted the privilege to sue, it will be the first time an alleged victim of Petty's gets a tangible chance at recourse. There was, of course, the fact that he was disbarred, but defendants whose trials were marred by Petty likely take little comfort in that, particularly when considering it came in 2021—two years after he retired.

The post Can This Woman Sue the Rogue Prosecutor Who Allegedly Helped Upend Her Life? appeared first on Reason.com.

The U.S. Supreme Court ruled Thursday that the due process rights of two Alabama women were not violated when they both had to wait over a year for a court hearing to challenge the police seizure of their cars.

In a 6–3 decision, the Court's conservative majority held in the case Culley v. Marshall, Attorney General of Alabama that property owners in civil asset forfeiture proceedings have no due process right to a preliminary court hearing to determine if police had probable cause to seize their property.

"When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitution requires a timely forfeiture hearing," Justice Brett Kavanaugh wrote in the majority opinion, joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett. "The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing. This Court's precedents establish that the answer is no: The Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing."

Under civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner is never charged or convicted of a crime. Law enforcement groups say it is a vital tool to disrupt drug trafficking and other organized crime.

Civil liberties groups across the political spectrum argue that the process creates perverse profit incentives for police and is unfairly tilted against property owners, who bear the burden of challenging the seizures in court. 

Those criticisms have been echoed in the past by not just the Supreme Court's liberal justices but also Justices Clarence Thomas and Neil Gorsuch, giving forfeiture critics hope that a skeptical majority on the Court would clamp down on civil forfeiture.

However, despite writing in a concurrence that "this case leaves many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution's promise of due process," Gorsuch, joined by Thomas, both agreed with the majority opinion.

Today's ruling is a disappointment, then, for groups such as the Institute for Justice, a libertarian-leaning public-interest law firm that filed an amicus brief on behalf of the petitioners. Kirby Thomas West, an Institute for Justice attorney, calls the ruling "a big loss for private property rights."

"Today's decision will mean many more property owners will never get their day in court when it could do them some good—shortly after the seizure of their vehicle or other property," says West. "Instead, civil forfeiture cases will languish for months or years before they are resolved. Meanwhile owners of seized vehicles will scramble to find a way to get to work, take their kids to school, run errands, and complete other essential life tasks."

The Supreme Court agreed to hear the case—two consolidated cases both involving Alabama women whose cars were seized by police for offenses they were not involved or charged with—last year.

In the first case, Halima Culley's son was pulled over by police in Satsuma, Alabama, while driving Culley's car. He was arrested and charged with possession of marijuana and drug paraphernalia. The City of Satsuma also seized Culley's car. It took 20 months, during all of which Culley was bereft of her vehicle, before a state court ruled that she was entitled to the return of her car under Alabama's innocent-owner defense.

In the second case, a friend of Lena Sutton took her car to run an errand in 2019. He was pulled over by police in Leesburg, Alabama, who found methamphetamine in the car and seized it. Sutton also eventually was granted summary judgment on an innocent-owner defense, but not until more than a year after the initial seizure of her car.

Culley and Sutton both filed lawsuits claiming that the towns violated their Eighth and 14th Amendment rights by depriving them of their cars for months when a pretrial hearing to establish probable cause for the seizures could have quickly determined that they were innocent owners.

Those long waits are not unusual. Last year, the U.S. Court of Appeals for the 6th Circuit ruled that Detroit's asset forfeiture scheme violated residents' constitutional rights by making them wait months for court hearings to challenge the validity of seizures. One of the plaintiffs in that lawsuit waited two years for a hearing.

However, the 11th Circuit rejected Culley's claims, finding the state's civil forfeiture process satisfied the requirements for a timely hearing under the speedy trial test, a balancing test created to resolve allegations of Sixth Amendment violations. However, every other circuit that has weighed in on the issue used a different balancing test established in the 1976 Supreme Court case Mathews v. Eldridge to determine due process violations.

The Supreme Court's conservative majority sidestepped the question of which test to use altogether, ruling that the existing requirement for a timely court hearing in forfeiture cases satisfied constitutional requirements.

"A timely forfeiture hearing protects the interests of both the claimant and the government," Kavanaugh wrote. "And an additional preliminary hearing of the kind sought by petitioners would interfere with the government's important law-enforcement activities in the period after the seizure and before the forfeiture hearing."

In a dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote that the majority opinion's reasoning was "deeply flawed" and, rather than resolve the question of which test lower courts should apply, creates a universal rule that "hamstrings federal courts from conducting a context-specific analysis in civil forfeiture schemes that are less generous than the one here."

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During a sleepover in August 2017, three 14-year-old boys, two of whom were about to start attending St. Francis High School in Mountain View, California, took a picture of themselves wearing dark green acne masks. One of the boys, who was hosting the other two, had severe acne, and his friends applied the masks in an act of playful solidarity. They took the picture because they thought they looked "silly."

Three years later, after another teenager obtained the picture and posted it online, the two St. Francis students were falsely accused of posing in blackface and forced to leave the school under the threat of expulsion. This week a California jury awarded the boys, identified as A.H. and H.H. in their lawsuit against the school, $1 million in damages, plus a tuition reimbursement of about $70,000.

"A photograph of this innocent event was plucked from obscurity and grossly mischaracterized during the height of nationwide social unrest," the boys' familes said when they filed their lawsuit in 2021. The photo came to light in June 2020, a month after Minneapolis police officer Derek Chauvin killed George Floyd. "St. Francis became involved in a number of racial scandals," NBC News reports, "including one where recent graduates of the school posted a meme about Floyd's death on Instagram." Because of that context, A.H. and H.H. argued, St. Francis officials rushed to judgment, tarring the students as racist and disrupting their lives without giving them a chance to explain the photo.

"The boys did not use the facemasks or take the photograph with any ill-intent, bias or prejudice, let alone in connection with any racist sentiments or epithets," the lawsuit said. "Defendants took it upon themselves to use the innocent and wholly unrelated photograph of the boys to make the malicious and utterly false accusation that the boys had been engaging in 'blackface,' and to recklessly assert that the photograph was 'another example' of racism" at St. Francis. That false accusation, according to the complaint, interrupted the boys' educations, destroyed their local reputations, and forced their families to move.

The jury agreed that St. Francis had treated the boys unfairly, thereby violating an oral contract. More controversially, the jury accepted a claim under the California Supreme Court's "common law doctrine of fair procedure," which extends due process requirements to private actors such as unions, hospitals, insurers, and professional organizations. Last year, the court ruled that the doctrine also applies to private universities. But according to the attorneys who represented A.H. and H.H., this is the first time the doctrine has been applied to a private secondary school.

"This case is significant not only for our clients but for its groundbreaking effect on all private high schools in California, which are now legally required to provide fair procedure to students before punishing or expelling them," said Dhillon Law Group partner Krista Baughman. "The jury rightly confirmed that St. Francis High School's procedures were unfair to our clients and that the school is not above the law."

Karin Sweigart, another lawyer at the firm, emphasized that it took four years to definitively refute the school's erroneous claim about the supposedly racist nature of the photo. "The jury's verdict finally cleared our clients' names after four long years of repeated personal attacks from St. Francis High School," she said. "Schools are supposed to protect and nurture children, not sacrifice them when it is convenient for public relations purposes."

The school's representatives said they "respectfully disagree with the jury's conclusion" about "the fairness of our disciplinary review process." They added that the school is "exploring legal options," including a possible appeal.

The plaintiffs' attorneys note that "St. Francis expelled the boys within 24 hours, without considering their evidence or offering any hearing." They add that "the school's actions led to significant personal, educational, and emotional consequences for the students."

The boys' parents amplified that point. "We would never wish the pain, humiliation, and suffering St. Francis has inflicted on our families on anyone," they said, "but we are thankful that the jury has spoken," "vindicated our boys," and "forced St. Francis to finally take responsibility for their repeated personal attacks."

Even with "time to reflect and contemplate after the heat of the moment had subsided," the parents said, St. Francis officials "don't regret their actions" and "would do the same thing today." Although the case has consumed "twenty percent of our boys' lives," they said, "the sacrifice is worth it to clear our boys' names" and "to try and make sure that St. Francis can never again assume a child is guilty" without giving him "the opportunity to show [his] innocence."

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Retiree Jim Ficken can finally breathe easy. After six years, two lawsuits, and harrying legal wrangling over a $30,000 fine for tall grass in Dunedin, Florida, a new settlement has brought him closure.

The agreement, announced on April 22, ends the city's pursuit to recover $10,000 in attorney fees that Dunedin officials tried to characterize as "administrative expenses" after reducing Ficken's original fine by 80 percent. The reduction was only possible because of reforms the city instituted soon after Ficken filed his first lawsuit.

Initially, the city attempted to tack on $25,000 for out-of-pocket legal expenses before realizing it had miscalculated that figure. As a result of this settlement, Ficken will not have to cough up any amount for bogus fees—an important consolation following setbacks in his first lawsuit.

Ficken attempted to reason with code enforcers before going to court—explaining that his lawn had grown long while he was settling his late mother's estate in South Carolina and that the landscaper he had hired to mow his grass while he was gone had died unexpectedly. He asked for leniency, but the city refused to budge and insisted on full payment: $500 per day for nearly two months, plus interest. They even put liens on Ficken's home and authorized city attorneys to initiate proceedings to seize it.

In response, Ficken filed a federal lawsuit with representation from the Institute for Justice, asserting that the excessive fines and lack of due process violated his Eighth and Fourteenth Amendment rights. He lost in district court in 2021 and again in 2022 at the 11th Circuit Court of Appeals—but he won in other ways. His case ignited a media frenzy and public calls for reform, prompting Dunedin to overhaul its code enforcement regime to prevent ruinous fines for trivial offenses.

After his legal battles, Ficken managed to get the fines reduced enough to prevent foreclosure. He thought he was safe. But then the city hit him with the bill for attorney fees, a retroactive attempt to penalize him for seeking his day in court. Left with no choice, he sued again in 2023.

The city could have avoided both lawsuits merely by treating Ficken like a neighbor instead of a cash machine.

While Ficken acknowledged his breach of a city ordinance and expected some penalty, Dunedin's aggressive tactics—aiming to extract tens of thousands of dollars and take his home—were blatantly excessive. American jurisprudence dictates that punishment must fit the crime. Municipalities must balance code enforcement with common sense and respect for property rights.

Dunedin moved in the right direction by making adjustments to its policies; however, the problem of excessive fines and fees is not confined to Dunedin—it is a national issue.

Across the country, similar stories of overzealous code enforcement abound. In Lantana, Florida, homeowner Sandy Martinez was fined more than $100,000 for parking violations on her own property. In Doraville, Georgia, Hilda Brucker was criminally prosecuted for having cracks in her driveway. And in Pagedale, Missouri, Valerie Whitner had to pay a fine for not having a screen on her back door.

Florida demographics create additional pressures. Many residents are retirees on fixed incomes living in single-family housing. People like Ficken have a right to stay, but some officials would prefer younger, more affluent taxpayers in their communities. Aggressive code enforcement is one way to target less desirable residents.

Sometimes enforcement is about preserving a certain aesthetic, as seen in Miami Shores, Florida in 2013. Officials declared vegetable gardens unsightly and threatened Hermine Ricketts and Tom Carroll with daily fines if they did not remove their front yard vegetables.

Regardless of motive, cities and towns must exercise restraint. The Constitution sets the baseline, and without it, abuses can and will grow quickly out of hand, and tall grass will be nothing in comparison.

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On Friday, the Biden administration unveiled final Title IX regulations, nearly two years after the administration proposed dramatic changes to how colleges handle sexual assault allegations. The new rules largely mirror proposed regulations released last year and will effectively reversing Trump-era due process reforms. 

According to the final regulations, accused students will lose their right to a guaranteed live hearing with the opportunity to have a representative cross-examine their accuser. This is accompanied by a return to the "single-investigator model," which allows a single administrator to investigate and decide the outcome of a case.

Further, under the new rules, most schools will be required to use the "preponderance of the evidence" standard, which directs administrators to find a student responsible if just 51 percent of the evidence points to their guilt. Schools are also no longer required to provide accused students with the full content of the evidence against them. Instead, universities are only bound to provide students with a description of the "relevant evidence," which may be provided "orally" rather than in writing. 

This is a stunning rollback of due process rights for accused students. Under the new regulations, a student can be found responsible for sexually assaulting a classmate because a single administrator believed there was a 51 percent chance he had committed the assault, and this conclusion can be reached without ever allowing the accused student to know the full evidence against him or providing a hearing during which he could defend himself.

The rules also represent a continuing partisan tension in education policy. Following President Barack Obama's 2011 "Dear Colleague" letter, which first mandated campus sexual assault tribunals, regulations have flip-flopped consistently along party lines. In 2020, the Trump administration introduced broad due process rights for accused students while prohibiting schools from taking many cases that occurred off-campus. Today's reforms mark the third major change to Title IX regulations in as many presidents.

"Justice is only possible when hearings are fair for everyone. So today's regulations mean one thing: America's college students are less likely to receive justice if they find themselves in a Title IX proceeding," the Foundation for Individual Rights and Expression (FIRE) said in a Friday statement. "When administrators investigate the most serious kinds of campus misconduct, colleges should use the time-tested tools that make finding the truth more likely. But the new regulations no longer require them to do so."

So far, the new rules have been met with widespread praise from victims' rights groups.

"Students who experience sexual violence or discrimination shouldn't have to weigh our safety against our ability to go to class or participate in campus life," said college student Emily Bach in a press release from Know Your IX, a campus sexual assault awareness group. "The Biden Administration's updated Title IX rule will make sure that students who experience harm can come forward and seek support without jeopardizing our ability to graduate on time or get a degree."

But contrary to what many victims' rights activists say, due process rights for accused students are essential, not contrary, in treating campus sexual assault as a pressing issue. College sexual assault victims should be taken seriously—but taking their accusations with the gravity they deserve also means providing those they accuse with the right to defend themselves in kind.

Even if Title IX hearings don't have the gravity of criminal proceedings, they have the potential to upend accused students' lives. Students have been expelled, had their degrees revoked, or even been deported after being found responsible for a Title IX violation. 

If we want university investigations into sexual assault allegations to maintain any sheen of legitimacy, we can't entrust the power to inflict such severe penalties to a single administrator working behind closed doors. Instead, we need a process that puts due process front and center—any other system quickly becomes shamefully untrustworthy.

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"I'm just floored and shocked," Rankin County, Mississippi, Sheriff Bryan Bailey said last August after five of his former deputies admitted to punching, kicking, tasing, torturing, and humiliating two men during an unlawful home invasion the previous January. "This is a perfect example of why people don't trust the police, and never in my life did I think it would happen in this department."

According to an investigation by The New York Times and Mississippi Today, however, Bailey had plenty of reasons to think something like this would happen in his department. Similar things had been happening in Rankin County "for nearly two decades," the Times reported in November.

"Narcotics detectives and patrol officers, some [of whom] called themselves the Goon Squad, barged into homes in the middle of the night, accusing people inside of dealing drugs," the paper said. "Then they handcuffed or held them at gunpoint and tortured them into confessing or providing information."

The Times and Mississippi Today corroborated "17 incidents involving 22 victims based on witness interviews, medical records, photographs of injuries and other documents." Those cases almost always involved "small drug busts," and the accusers "described similar tactics." Deputies "held people down while punching and kicking them or shocked them repeatedly with Tasers." They "shoved gun barrels into people's mouths." Three people "said deputies had waterboarded them until they thought they would suffocate," while "five said deputies had told them to move out of the county."

Although the federal charges that drew national attention to police brutality in Rankin County involved two black victims, Bailey's deputies were equal-opportunity abusers. They "appear to have targeted people based on suspected drug use, not race," the Times said. "Most of their accusers were white."

The deputies' pattern of abuse was reflected in complaints and lawsuits. "More than a dozen people have directly confronted Sheriff Bailey and his command staff about the deputies' brutal methods," the Times noted, and "at least five people have sued the department alleging beatings, chokings and other abuses by deputies associated with the Goon Squad."

Bailey said he had never heard of the Goon Squad and had no reason to think his deputies were abusing their authority. "Nobody's ever reported that to me," he said in August, and he "never, ever could've imagined" that the five convicted deputies, who included a man he said he knew "well" and had chosen as investigator of the year in 2013, were capable of "these horrendous crimes."

Bailey, who was reelected in November after running unopposed, rejected calls for his resignation. "I'm going to fix this," he promised. "I'm going to make everyone a whole lot more accountable."

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On March 26, 2019, every American who owned a bump stock, a rifle accessory that facilitates rapid firing, was suddenly guilty of a federal felony punishable by up to 10 years in prison. That did not happen because a new law took effect; it happened because federal regulators reinterpreted an existing law to mean something they had long said it did not mean.

On Wednesday, the U.S. Supreme Court considered the question of whether those bureaucrats had the authority to do that. The case, Garland v. Cargill, turns on whether bump stocks are prohibited under the "best reading" of the federal statute covering machine guns. While several justices were clearly inclined to take that view, several others had reservations.

The products targeted by the government are designed to assist bump firing, which involves pushing a rifle forward to activate the trigger by bumping it against a stationary finger, then allowing recoil energy to push the rifle backward, which resets the trigger. As long as the shooter maintains forward pressure and keeps his finger in place, the rifle will fire repeatedly. The "interpretive rule" at issue in this case, which was published in December 2018 and took effect three months later, bans stock replacements that facilitate this technique by allowing the rifle's receiver to slide back and forth.

Officially, the purpose of that rule was merely to "clarify" that bump stocks are illegal. According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), they always have been, although no one (including the ATF) realized that until 2018.

Federal law defines a machine gun as a weapon that "automatically" fires "more than one shot" by "a single function of the trigger." The definition also covers parts that are "designed and intended…for use in converting a weapon" into a machine gun.

During Wednesday's oral arguments, Principal Deputy Solicitor General Brian H. Fletcher maintained that a rifle equipped with a bump stock plainly meets the criteria for a machine gun. It "fires more than one shot by a single function of the trigger," he said, because "a function of the trigger happens when some act by the shooter, usually a pull, starts a firing sequence." An ordinary semi-automatic rifle, according to Fletcher, "fires one shot for each function of the trigger because the shooter has to manually pull and release the trigger for every shot." But "a bump stock eliminates those manual movements and allows the shooter to fire many shots with one act, a forward push."

Fletcher argued that a rifle with a bump stock also "fires more than one shot automatically, that is, through a self-regulating mechanism." After "the shooter presses forward to fire the first shot," he said, "the bump stock uses the gun's recoil energy to create a continuous back-and-forth cycle that fires hundreds of shots per minute."

Jonathan F. Mitchell, the attorney representing Michael Cargill, the Texas gun shop owner who challenged the bump stock ban, argued that Fletcher was misapplying both of those criteria. First, he said, a rifle equipped with a bump stock "can fire only one shot per function of the trigger because the trigger must reset after every shot and must function again before another shot can be fired." The trigger "is the device that initiates the firing of the weapon, and the function of the trigger is what that triggering device must do to cause the weapon to fire," he added. "The phrase 'function of the trigger' can refer only to the trigger's function. It has nothing to do with the shooter or what the shooter does to the trigger because the shooter does not have a function."

Second, Mitchell said, a rifle with a bump stock "does not and cannot fire more than one shot automatically by a single function of the trigger because the shooter, in addition to causing the trigger to function, must also undertake additional manual actions to ensure a successful round of bump firing." That process "depends entirely on human effort and exertion," he explained, because "the shooter must continually and repeatedly thrust the force stock of the rifle forward with his non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. None of these acts are automated."

Justices Elena Kagan and Ketanji Brown Jackson seemed eager to accept Fletcher's reading of the law, arguing that it is consistent with what Congress was trying to do when it approved the National Firearms Act of 1934, which imposed tax and registration requirements on machine guns. Although bump stocks did not exist at the time, they suggested, the law was meant to cover any firearm that approximated a machine gun's rate of fire.

According to Fletcher, "a traditional machine gun" can "shoot in the range of 700 to 950 bullets a minute," while a semi-automatic rifle with a bump stock can "shoot between 400 and 800 rounds a minute." As he conceded, however, the statute does not refer to rate of fire. "This is not a rate-of-fire statute," he said. "It's a function statute." To ban bump stocks, in other words, the ATF has to show that they satisfy the disputed criteria.

"It seems like, yes, that this is functioning like a machine gun would," Justice Amy Coney Barrett said. "But, you know, looking at that definition, I think the question is, 'Why didn't Congress pass…legislation to make this cover it more clearly?'"

Justice Neil Gorsuch made the same point. "I can certainly understand why these items should be made illegal," he said, "but we're dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machine guns." That changed after a gunman murdered 60 people at a Las Vegas country music festival in October 2017, and it turned out that some of his rifles were fitted with bump stocks.

The massacre inspired several bills aimed at banning bump stocks. Noting that "the ATF lacks authority under the law to ban bump-fire stocks," Sen. Dianne Feinstein (D–Calif.) said "legislation is the only answer." President Donald Trump, by contrast, maintained that new legislation was unnecessary. After he instructed the ATF to ban bump stocks by administrative fiat, the agency bent the law to his will. Noting that "the law has not changed," Feinstein warned that the ATF's "about face," which relied partly on "a dubious analysis claiming that bumping the trigger is not the same as pulling it," would invite legal challenges.

Feinstein was right about that, and one of those challenges resulted in the decision that the government is now asking the Supreme Court to overturn. In January 2023, the U.S. Court of Appeals for the 5th Circuit rejected the ATF's redefinition of machine guns.

"A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of 'machinegun' set forth in the Gun Control Act and National Firearms Act," 5th Circuit Judge Jennifer Walker Elrod wrote in the majority opinion. And even if that were not true, Elrod said, "the rule of lenity," which requires construing an ambiguous criminal statute in a defendant's favor, would preclude the government from punishing people for owning bump stocks.

Gorsuch alluded to Feinstein's prescient concerns about the ATF rule's legal vulnerability: "There are a number of members of Congress, including Senator Feinstein, who said that this administrative action forestalled legislation that would have dealt with this topic directly, rather than trying to use a nearly 100-year-old statute in a way that many administrations hadn't anticipated." The ATF's attempt to do that, he said, would "render between a quarter of a million and a half million people federal felons," even though they relied on guidance from "past administrations, Republican and Democrat," that said bump stocks were legal.

Justices Brett Kavanaugh and Samuel Alito also were troubled by that reversal's implications for people who already owned bump stocks. Fletcher tried to assuage those concerns.

"ATF made [it] very clear in enacting this rule that anyone who turned in their bump stock or destroyed it before March of [2019] would not face prosecution," Fletcher said. "As a practical matter," he added, "the statute of limitations for this offense is five years," meaning prosecutions of people who owned bump stocks before the rule took effect will no longer be possible a month from now. "We have not prosecuted those people," he said. "We won't do it. And if we try to do it, I think they would have a good defense based on entrapment by estoppel," which applies when someone follows official advice in trying to comply with the law.

"What is the situation of people who have possessed bump stocks between the time of the ATF's new rule and the present day or between the time of the new rule and the 5th Circuit decision?" Alito asked. "Can they be prosecuted?" Fletcher's answer: "probably yes." That prospect, Alito said, is "disturbing."

Kavanaugh wondered about gun owners who did not destroy or surrender their bump stocks because they did not know about the ATF's rule. "For prosecuting someone now," he asked, "what mens rea showing would the government have to make to convict someone?" Fletcher said the defendant would "have to be aware of the facts" that, according to the ATF's reinterpretation of the law, make bump stocks illegal. "So even if you are not aware of the legal prohibition, you can be convicted?" Kavanaugh asked. "That's right," Fletcher replied.

"That's going to ensnare a lot of people who are not aware of the legal prohibition," Kavanaugh said. "Why not require the government to also prove that the person knew that what they were doing…was illegal?"

Gorsuch mocked Fletcher's apparent assumption that gun owners can be expected to keep abreast of the ATF's edicts. "People will sit down and read the Federal Register?" he said to laughter. "That's what they do in their evening for fun. Gun owners across the country crack it open next to the fire and the dog."

Maybe not, Fletcher admitted, but the publicity surrounding the ban and the legal controversy it provoked probably brought the matter to many people's attention. "I agree not everyone is going to find out about those things," he said, "but we've done everything the government could possibly do to make people aware."

Beyond the unfairness to gun owners who bought products they quite reasonably thought were legal, the ATF's about-face lends credibility to the complaint that its current interpretation of the law is misguided. If the ATF was wrong before, how can we be confident that it is right now?

According to the agency's new understanding of the statute, Mitchell noted, "function of the trigger" hinges on what the shooter is doing. But "function is an intransitive verb," he said. "It can't take an object grammatically. It's impossible. The trigger has to be the subject of function. It can't be the object."

Gorsuch picked up on that point, noting that the government had likened "function of the trigger" to "a stroke of a key or a throw of the dice or a swing of the bat." But "those are all things that people do," he said. Since function is an intransitive verb, "people don't function things. They may pull things, they may throw things, but they don't function things."

Gorsuch noted that the ATF is relying on "a very old statute" designed for "an obvious problem" posed by gangsters like Al Capone armed with machine guns that fired repeatedly "with a single function of the trigger—that is, the thing itself was moved once." Maybe legislators "should have written something better," he said. "One might hope they might write something better in the future. But that's the language we're stuck with."

What about the ATF's claim that a rifle equipped with a bump stock shoots "automatically"? Fletcher conceded that "an expert" can bump-fire a rifle "without any assistive device at all" and that "you can also do it if you have a lot of expertise by hooking your finger into a belt loop or using a rubber band or something else like that to hold your finger in place." But he added that "we don't think those things function automatically because the definition of 'automatically'" entails "a self-regulating mechanism."

As the government sees it, a shooter creates such a mechanism by using a bump stock, notwithstanding the "manual actions" that Mitchell highlighted. "There's nothing automatic about that," Mitchell argued. "The shooter is the one who is pushing. It's human effort, human exertion. Nothing automatic at all about this process."

Barrett asked Fletcher how the ATF would treat an elastic "bump band" marketed as an accessory to facilitate rapid firing. "Why wouldn't that then be a machine gun under the statute?" she wondered. "We think that's still not functioning automatically because that's not a self-regulating mechanism," Fletcher replied.

Mitchell, by contrast, argued that Barrett's hypothetical product and a bump stock are "indistinguishable when it comes to 'automatically.'" Bump firing with either involves "a manual action undertaken entirely by the shooter," he said. "There is no automating device….It is all being done by the shooter."

Justice Sonia Sotomayor, who was sympathetic to Fletcher's argument, nevertheless implied that the legal status of bump stocks might not be as clear as the government suggests. "The back-and-forth here leads me to believe that at best there might be some ambiguity," she said. But if the statute is in fact unclear, the 5th Circuit said, the ambiguity should be resolved in a way that protects gun owners from prosecution for a crime invented by bureaucrats.

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