Author Archive

Dumb… and DOMA

May 31st, 2012

A sampling of today’s headlines:





To which a responsible legal blawgger must footnote:

(1) “Ruled,” yes. We’re not sure what it all means yet.

(2) Well, kind of. It’s complicated.

(3) The smallest federal circuit, the fightin’ First has to be one of the only places where you’ll routinely hear “New England” and “Puerto Rico” used in the same sentence.1

(4) But not really until the Supreme Court actually rules on the whole thing for everybody all at once.

I feel for legal reporters every time one of these big non-SCOTUS federal appellate cases comes down. I’d bet that about a quarter of the attorneys currently practicing in America don’t even know which federal circuit they are in (let alone exactly what a circuit court does), so it’s not much more fun explaining it to the public.

Here goes.

The First Circuit’s decision in Massachusetts v. U.S. Dept. of Health and Human Services, No. 10-2204  (1st Cir. 5/13/12), aff’g Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010) is an exciting step forward toward true marriage equality in the United States. But it’s also not. It’s complicated.


This appeal arises from two different actions, both challenging different applications of the Defense Against Marriage Act (”DOMA”) which the plaintiffs argued improperly denied federal economic benefits (including Social Security death benefits, tax advantages, and Medicare payments to the Commonwealth of Massachusetts) reserved for married couples.2

The Defense of Marriage Act was rushed through Congress in 1996 and signed by a President who had (as we would later learn) quietly redefined his own marriage with some help from a White House intern the year before. In short3, DOMA defined marriage for all federal purposes as “only a legal union between one man and one woman.”4

For as much as this may sound like little more than a rhetorical victory for proponents of “traditional marriage,” I can’t think of a shorter law that has had a longer reach. From annual income taxes to military death benefits to visas for non-citizen spouses5, it turns out that federal agencies are all up in the business of married couples. There are more than one thousand individual federal statutes which specifically mention marriage. In one swoop of the President’s pen, DOMA ensured that none of them would acknowledge (let alone protect) any union other than one man and one woman.

Massachusetts was the first jurisdiction in the U.S. to recognize full marriage equality6 at the state level in 2004’s historic Goodridge v. Dept of Public Health. It is no coincidence that the Commonwealth is now the lead plaintiff in the most important anti-DOMA appellate case to date, arising from a 2010 federal district court ruling.7

Before I get into what this decision is all about, keep in mind what it is not about. The central issue in this case is not about “legalizing” same-sex marriage nationally, but merely asking the federal government to recognize marriages already recognized by state law. Its refusal (pursuant to DOMA) to do so to date has caused heartbreak (deportation and visa denial of non-citizens legally married to U.S. citizens), financial hardship (denial of survivor benefits from military service, Social Security, etc.), and any number of other evils large and small for decent people trying to make lives for themselves in the increasing number of states to have embraced marriage equality. (The decision also does not touch upon DOMA’s controversial provision forbidding states from recognizing each other’s same-sex marriages.) If this is an “activist” decision8, it is about as modest as anything of that description could possibly be.

Eh… tl;dr. Can you give me enough to sound smart at a cocktail party?

Sure! I mean, I only just read this thing along with everyone else, but here are my initial impressions:

(1) No matter what you think of it, DOMA was a rush job….

“The entire statute… must–having only two operative paragraphs–be one of the shortest major enactments in recent history,” Judge Boudin writes. He goes on throughout the opinion to complain that the statute was rushed through with “minimal hearings,” was entirely “lacking in formal findings” and “devoid of the express prefatory findings commonly made in major federal laws,”; perhaps worst of all, it was railroaded through after “only one day of hearings” with no testimony whatsoever provided as to its possible implications for “the numerous federal programs at issue.” Indeed, Boudin notes with a certain sort of New England-y laconicism, “[s]ome of the odder consequences of DOMA testify to the speed with which it was adopted.”

(2) “…but only the Supreme Court can finally decide this unique case.”

This is a constant theme, both implicit and explicit, underlying every paragraph of this decision. While all published appellate rulings are drafted in view of an inevitable appeal, Boudin is actually directly addressing the Supreme Court here in a way that I’ve never quite seen before:

But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even it it approves the result will formulate its own explanation).9

It is also notable that almost all of the precedents cited are SCOTUS decisions (rather than looking at what the other circuits have said about related issues), and the ruling itself has been voluntarily stayed by the First Circuit pending review by the court of last resort.10

(3) Money is no object.

Will repealing DOMA cost the federal government more money? Maybe, or maybe not.11 It really doesn’t matter. Rights are rights, and the whole point of a disadvantaged minority group taking its case to a federal court is to be sure that rights which may not otherwise be protected by the voting populace in a democratic society are ensured equal treatment under the law.12

(4) DOMA is about adults, not kids.

“But what about the children!?” has always been an easy fallback, but Boudin cleanly disposes of it in a single paragraph. DOMA is about marriage, and nothing else. Massachusetts and other states recognizing marriage equality are free to permit same-sex parents to adopt children or employ surrogate mothers, with or without a federal definition of marriage.

(5) States can still do it for themselves.

While specifically dodging Section 2 (DOMA’s attempt to override the Full Faith and Credit clause of the U.S. Constitution), this decision reiterates the obvious point that the federal government’s repeal of DOMA would not force anything on anyone. It would simply respect existing state law.

(6) But wasn’t Congress only attempting to “temporarily freeze” the possibility of marriage equality “to reflect” on the situation?13

No. They weren’t. Unless you just ate that pint of Ben & Jerry’s to “temporarily store it” somewhere until you cleared up some freezer space. Have you even read this three-paragraph statute? Go away.

(7) “Moral disapproval” is not, in and of itself, an appropriate basis for legislation. But don’t hate the haters–hate the game!

In his search to find any basis for DOMA in the Congressional record (which is, to make the point yet again, unusually scarce here), Boudin cites a number of statements made by elected representatives on the record that homosexuality is “morally wrong” and DOMA was intended as a “moral disapproval” of its possible recognition by the federal government. In view of the Supreme Court’s 2003 decision striking down all state sodomy laws and other post-DOMA rulings on LGBT rights, Boudin somewhat cryptically notes that while “moral judgments can hardly be avoided in legislation… [subsequent cases] have undercut this basis.” He then goes on to specifically criticize the plaintiffs’ allegation that “DOMA’s hidden but dominant purpose was hostility” to openly gay Americans and gives Congress the benefit of the doubt in finding that “the many legislators who supported DOMA acted from a variety of motives”–and only “a small group” of these were openly hateful about it.

Interesting. And perhaps just a little more diplomatically than I would have put that.

(8) Strike 3! (Kind of.)

The First Circuit has struck down DOMA’s cold, angry heart: the definition of marriage contained within Section 3. But this decision is stayed until the Supreme Court can review it, which will be no sooner than next year at the earliest.

(9) Bonus! How did they get there? (Optional reading for non-lawyers.)

Appellate nerds will note that I have not mentioned this decision’s rather unusual sidestepping of the usual equal protection analyses which are supposed to be conducted by higher courts in these cases in favor of something which Boudin casually refers to as “scrutiniz[ing] with care.” As opposed to the familiar “strict scrutiny,” “intermediate scrutiny,” “intermediate scrutiny with bite,” and the other standards tailored by the Supreme Court in recent years, this apparently new standard may be immediately distinguished by the fact that it does not exist. It’s a strange sort of crepuscular dodge which allows the First Circuit to hold to its traditional stance that sexual preference is not necessarily a “suspect classification” for equal protection purposes. (This kind of caution is wise under the circumstances, but I still can’t see this as anything but a missed opportunity.)

It seems to me that while the 1st is leaving wide latitude for the Supreme Court to overrule this part of the decision (perhaps even with some small gratitude), the true foundation of the ruling is in federalism and Tenth Amendment principles–the idea that states should have the right to decide certain issues for themselves in matters where the federal government has no clear overriding interest. While Boudin concedes that the federal government certainly has some reason to care about the definition of marriage, the panel ultimately finds that the burden on states such as Massachusetts is simply too great and that Congress was simply trying to “put its thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.”

There is a lot more to say about the underlying reasoning of this decision, but I think it really deserves its own post. And I’ll leave that to an actual Constitutional lawyer who is not attempting to analyze this ruling on the day it was handed down.

(10) Wait, what about non-economic benefits (i.e. visa petitions)?

Finally–and this is probably really just my personal bias–there is not a word anywhere here about immigration benefits. The focus is almost entirely upon economic and entitlement benefits for same-sex couples, but overlooks the fact that DOMA in its current form prevents unknown thousands of married partners from being able to remain together in the United States. While they would also clearly benefit from DOMA’s demise, I was disappointed that these vital stakeholders didn’t even get a passing mention.


I am writing this just a little more than 12 hours after the decision came down, and after only a few hours of reflection. But what does it all mean? Will the SCOTUS take the assist and knock it out of the park, or fumble the hat trick?14 Will the aptly-named BLAG step up to conduct the hate train now that the Obama administration has disavowed DOMA? How angry will Scalia’s dissent be?

Find out in Anthony Kennedy Beyond ThunderDOMA! (Summer 2013!)

  1. To be fair, they had to stick Puerto Rico in somewhere. More importantly, the circuit court judges needed somewhere other than Boston to be in December. []
  2. There’s a lot of procedural history–and it’s fascinating, really–but it’s a lot more than we need here. []
  3. and you can’t get much shorter than the actual text of the law itself []
  4. It also legislatively overruled the Full Faith and Credit clause of the U.S. Constitution by preventing states from recognizing one another’s valid same-sex marriages, but that is a completely different topic not addressed in today’s decision. []
  5. To name only a few of the hundreds of possible implications []
  6. as opposed to civil unions or any other legal benefits for same-sex couples []
  7. This case famously included Judge Tauro’s question to a Justice Department attorney defending the government’s position that a military veteran could not be buried with his male spouse in a military cemetery if the federal government had an interest in “perpetuating heterosexuality in the graveyard.” []
  8. I really don’t think it is, and anyone who says otherwise should note that two of the three panel members were Republican appointees []
  9. But wouldn’t you rather just adopt ours? We went to all this trouble to write it out for you, and we really do quite like it. []
  10. While this will inevitably disappoint those who have been fighting so hard for marriage equality, the alternative would have been to somehow carve out New England and Puerto Rico as the only places in the United States where full marriage equality is recognized. For as much as I just enjoyed typing that last bit, this would cause all manner of chaos throughout any number of agencies and likely have unintended ripple effects throughout the nation before the Supreme Court had a chance to properly settle the matter. []
  11. Incidentally, the First indicates that it is leaning toward the “maybe not” side here. []
  12. Eh, just read the opinion for this. This is one of the best summaries of the inevitable countermajoritarian function of the federal courts I’ve seen in awhile. []
  13. Seriously, I know this sounds like a straw man–but this was an actual argument advanced during the course of this appeal. []
  14. Oh, sports! When will I ever understand you? []

1st Circuit, U.S. Supreme Court, massachusetts

There Is No Line

December 7th, 2010

If you like Mass Appeal, please be sure to check out  There Is No Line, my newest blogging venture. TINL intends to provide actual facts in response to actual arguments and assertions made by actual people—some of whom are merely misguided or misinformed, and others who we believe to be actively misleading the American public–engaged in the American immigration “debate” (such as it is). I’ll still be doing my best to keep up with Mass. appellate law in the meantime, but just wanted to share the news.


Massachusetts v. The Internet: Commonwealth 0, Internet 2

October 27th, 2010

This week’s cautionary tale in sloppy, reactionary lawmaking comes courtesy (as it so often does) of the Massachusetts legislature.

Our very own Great and General Court, a full-time, democratically-elected, deliberative body which occupies the very “hub of the solar system” (but hasn’t quite gotten around to formally criminalizing human trafficking)1 hastily passed a misguided amendment to our criminal laws earlier this year which effectively attempted to regulate the entire Internet. Here’s how it (literally) went down.

Round 1: “If the Legislature wishes…”

On February 5, 2010, the SJC issued a fairly conservative, by-the-book decision in Commonwealth v. Zubiel, 456 Mass. 27 (2010), in which it strictly construed the text of the G.L.c. 272, §31 to find that the statutory definition of “matter harmful to a minor” did not include instant messaging. The defendant in that case was nailed in a classic To Catch a Predator-style sting following a series of online chats with an undercover officer posing as a 13-year-old version of herself. Over the defendant’s objection, the trial court determined that his Internet chats with the officer constituted an attempt to disseminate “matter harmful to a minor” under G.L.c. 272, §31. The SJC reversed this finding and agreed with the defendant that the statutory definition of “matter”—the most relevant portion of which included “handwritten or printed material”—could not have possibly meant to encompass text-only online communications. In conclusion, the Court quite reasonably found that:

While proscribing the activity in this case would be consistent with a legislative intent to protect children from sexual abuse and exploitation, the definitions in §31 do not do so. If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of “[m]atter” under § 31, it is for the Legislature, not the court, to do so.

Whatever “judicial activism” may be,2 clearly this ain’t it. The Court stayed well within the lines here and politely invited the Legislature—as, with mixed results, it so often does—to update one of the Commonwealth’s many hundreds of outdated laws.

So it did.

As of July 11, 2010, the new text of §31 defined “matter” as:

…any handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances, [the original text of the definition ended here] or any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system.

As someone behind this ridiculously overbroad definition must have known, this kind of thing has been tried on the federal level at least twice within the past fifteen years, and there is a good reason that it has failed both times.3 Rather than targeting creeps who directly and purposefully attempt to inappropriately communicate with children on the Internet, this amendment effectively attempted to criminalize anything on the Internet that a child might see… which is, of course, anything on the Internet.

It is reasonably simple to keep kids out of, say, an adult bookstore or the World Air Sex Championships.4 But, as anyone who has lived in a country with free and regular Internet access within the past twenty years should probably understand, it is nearly impossible to effectively prevent determined minors from accessing an adult book reprinted on a freely-accessible site via a Creative Commons license, let alone a particularly excitable blogger’s detailed description of the winning performance at the World Air Sex Championships.

To recap: In response to the SJC politely pointing out that the Legislature had failed to understand how a given law might apply to the Internet, the Legislature proceeded to demonstrate that it did not understand the Internet at all.

Round 2: If You Can’t Beat ‘Em, Enjoin ‘Em

All of this is, of course, the kind of thing to which any given ACLU lawyer can whip up a written opposition before she has finished her first cup of morning coffee. The inevitable request for a preliminary injunction [PDF] came almost as soon as the new definition became law, with the plaintiffs arguing (as summarized above) that the amended statute was overbroad in that it is nearly impossible to control who might access content which might be deemed “harmful to a minor” on the Internet.

In its commendably-thorough briefing [PDF], the Attorney General’s office was effectively forced to concede that the statute as written would be unconstitutional without an explicit requirement that the sender know that he was purposely disseminating the material to a minor, rather than simply posting such material in a place where a minor might have an opportunity to see it. Although this proposition found little support in the text of the statute itself, the AG did its best to argue that a 2006 SJC case5  had judicially established this kind of purposeful dissemination as an element of the crime, and otherwise relied on the kinds of generalized public policy arguments which typically signal an appellate party’s own self-awareness that a losing battle is about to be lost.

U.S. District Court Judge Rya Zobel’s decision granting the plaintiffs a preliminary injunction came down almost exactly along welcome and expected lines today. The District Court held that Belcher had not squarely ruled on the level of intent necessary for a conviction under this statute, and that the new definition was otherwise simply so overbroad as to be “without question” facially violative of the First Amendment. Given the procedural posture of the case, the court found that it would be inappropriate to strike the statute down completely, and instead granted the plaintiffs a preliminary injunction while inviting both parties to submit a more formal permanent injunction.

Round 3?

We’ll see. It appears likely that the AG’s office will take the District Court up on its offer to come up with an injunction that both parties can live with, but it also has the right to appeal this decision to the First Circuit. More as it happens…

  1. There’s also an argument to be made that we haven’t quite gotten around to criminalizing distribution of methamphetamine, but maybe more on that another time… []
  2. And I wouldn’t deny that something approaching this description does occasionally arise in Roberts-era American jurisprudence… but not simply because I disagree with the outcome of a given case. []
  3. A much narrower and more appropriately-targeted provision requiring certain schools and libraries to install user-side content filters  seems to have stuck, so far. []
  4. This was the only event I could possibly imagine might fall under the purview of the statute’s “dance” provision. []
  5. Commonwealth v. Belcher, 446 Mass. 693 [2006] []


This whole court is not entirely out of order! How the AAO has improved, and why it matters.

October 22nd, 2010

As both of my regular readers may recall, I had a few things to say last year about the lack of both transparency and proper subject-matter jurisdiction of the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS).  To my surprise, this painfully wonky little critique of a mostly-unsung agency has been one of my most consistently-visited posts over the course of the past year.1

<abbr>AAO</abbr> Chief Perry J. Rhew

AAO Chief Perry J. Rhew

One of those visitors was new AAO Chief Perry J. Rhew, an accomplished public servant with a resume which includes significant experience and positions of authority in civil, criminal, and administrative law. I have recently had the privilege of conducting a very pleasant email exchange with Chief Rhew, and would like to take an opportunity to update my thoughts on the AAO in light of his gracious response to my concerns.

Chief Rhew initially contacted me with a personal invitation both to the AAO’s first-ever live public conversation with its stakeholders via an interactive conference call, as well as to consider the agency’s progress toward addressing my concerns over the past 12 months. Although I had originally marked my calendar for this unique event earlier this week, I was disappointed when unavoidable client obligations ultimately forced me to miss it.  While I by no means consider myself to be a journalist,2 I wanted to be sure to permit the AAO a full and fair opportunity to respond to the issues raised by last year’s post.

While I would have preferred the opportunity to hear the more comprehensive presentation provided in this week’s session, Chief Rhew was kind enough to take the time to summarize his main points for me in his most recent email, which I have reprinted below in its entirety with his permission:


I’m sorry you had to miss the call.  Unfortunately there is no transcript or live recording.  We had about 30 people in the room and another 300 or so on the phone, which resulted in a lively discussion for the two hours.

You figured prominently in my opening remarks.  I told those assembled that before coming on board I saw your blog and took the concerns to heart, keeping what you said in mind over the first couple of months to assess the need for change.  With the support of a terrific leader, Alejandro Mayorkas, here’s what we’ve focused on in the past year.  I discussed all of these issues on the call Wednesday.

  • More information about the AAO is now available online.  I listened to external stakeholders and USCIS employees over the first few months, then sat down with the Office of Communications and crafted webpages for, the first AAO website.  The pages went live in January and we are adding to them as additional information is developed.
  • We’ve worked hard to increase our public presence by attending individual stakeholder sessions and listening events across the country.  I visited the Service Centers in Vermont, Nebraska, California, and Texas and field and district offices this past year, speaking to employee groups and at public events.  I was honored to work with the terrific Office of Citizenship and be able to give the keynote address at Naturalization Ceremonies at the Jimmy Carter Presidential Library in Atlanta and at Fort Necessity Battlefield.
  • We are adding adjudicators to our staff in an attempt to reduce delays in processing.  We expect to have the new adjudicators trained and drafting decisions by the first of the year, and hopefully will reduce our backlog of H1, I-601, and I-140 cases significantly in the coming months.
  • Our stated goal for the year was to achieve a processing time frame of under six months for at least 25 of the 41 types of cases we report online each month.  We ended the year with 31 of the 41 averaging under six months.  Three times during the year we shifted resources and retrained adjudicators to move them to more pressing caseloads.
  • We report and update our case processing timelines monthly online.
  • After a months long effort yesterday, for the first time in 12 years, the AAO published two Precedent Decisions.
  • As I mentioned on the call and have stated before, we hope to soon publish a proposed AAO Reg that will help streamline the appeals process and give the public a much better understanding of what to expect when they file an appeal.  We currently operate under a delegation of authority from the Secretary, but the new Reg will once again codify our jurisdiction.
  • We are working with the USCIS Transformation Leadership Team to ensure that the AAO moves forward into the electronic environment.
  • We worked with our colleagues at the Office of Chief Counsel, the Office of Policy and Strategy, the Office of Public Engagement, and the DHS Office of General Counsel to strengthen our relationships with those offices and hopefully move serious, high level discussions about common issues to the forefront of conversations.
  • I hold frequent meetings with all of my Branch Managers at the AAO to discuss case concerns and resource allocation.

That’s it in a nutshell . . . so far.  I want to thank you again for raising these concerns last year.  It is certainly not always the case, but we now know the answer to that age old question:  What’s the sound of one lone voice crying out in the blogosphere?  In this case, positive moves in the right direction.

Take care,


Chief Rhew’s summary of his commendable efforts since assuming leadership of the AAO speaks for itself. I would like to reiterate, as I hope was evident from my original post, that it was never my intention to question the AAO’s integrity, efficiency, commitment to its stakeholders, or unquestionable utility to the American immigration system. My only serious stated qualms were with the agency’s (a) transparency (in line with the recommendations of the 2005 ombudsman’s report) and (b) proper subject-matter jurisdiction, an issue which is of enormous importance to me as an appellate advocate. I am fully satisfied that Chief Rhew has personally committed himself to taking significant steps toward improving the former, and I look forward to seeing the proper regulatory restoration of the latter.

On a personal note, I would like to thank Chief Rhew for taking the time to engage in this direct, effective, and (perhaps most importantly) enjoyable dialogue, both with me on a personal level and through the public conversation I was sorry to miss earlier this week. This is open and responsible government at its finest, and a nice reminder of why I have continued to appreciate the opportunity to assist deserving individuals from around the world toward fulfilling their dreams of full participation in our democracy.

  1. For as much as I would like to take credit for all of this traffic, this fact likely says more about the historical dearth of publicly-available information on the AAO (one of the main points of contention within my post) than it does about my Google ranking. []
  2. Or at least tend to sprinkle my writing with several times more miserable puns and references to Scotch than AP style would typically allow []


Christmas in July: SJC finds snow time like the present to shovel out the “Massachusetts Rule”

July 26th, 2010

Imagine, if you will, that you are a reasonable Massachusetts resident who awakens early one spring morning to find that some evil prankster has littered the lawn and sidewalk outside your home with open bear traps and slimy old banana peels. You know that dozens of kids will be walking past on their way to your nearby middle school within the hour.

Your responsibility under the circumstances is pretty clear here, at least unless you’re prepared to pay for a wardful of kiddie-sized artificial limbs: you’re going to have to clear out, rope off, or otherwise mitigate an obvious hazard to the public on your property.

Easy enough. Now try this one: what if it were a January morning, and you awoke to find that your sidewalk had naturally frozen into a solid sheet of slippery snow and ice? Until recently, you could have thrown some popcorn in the microwave, eased into your favorite bunny slippers, and enjoyed the hilarious slip-and-fall antics with your morning coffee.

The ice was, you see, merely a “natural accumulation.” It came from the sky! It wasn’t your fault!

That’s right: Massachusetts law for the past 150 years has held property owners responsible only for injuries resulting from “unnatural accumulations” of snow and ice. While the “natural” vs. “unnatural” distinction is about as unnatural as it gets, the best I’ve been able to discern is that accumulations caused by any kind of “synthetic” means (i.e., your mother going a little crazy with the snowblower) incur liability, while those which have fallen into place “naturally” (i.e., Mother Nature) do not.

This rule, eliminated at long last today in Papadopolous v. Target, was so stupid that it has been known nationwide as “The Massachusetts Rule” for at least the past century. (This kind of special treatment is not generally proportionate to a given rule’s logic or correctness.) It is an ancient holdover from a time when a completely different legal standard was applied to the duty owed by landowners to people who might be passing over their property in the normal course of business (”invitees”) as opposed to paying tenants.1

I don’t have much of a stomach for torts,2 but anyone who was mostly conscious through their first year of law school will recall the “duty of reasonable care” which homeowners owe to those—even, in some cases, known trespassers—who may be crossing over their property. The principle is pretty straightforward: Every man’s home is his castle, and if you want to cover your floors in rancid butter, rusty caltrops, and used medical supplies, you have every right to do so—so long as you don’t expose anyone else to these conditions. If you know (or have reason to know) of a hazard which might be encountered by others, you have a legal3 responsibility to employ all reasonable means available to clean it up. Hence the banana peels-and-bear-traps hypothetical above, and the simple logic of today’s decision. While a general duty of reasonable care to anyone who might cross their property has been the law for property owners in the Commonwealth since at least the 1977, the courts never bothered to shovel up the old “natural” vs. “unnatural” distinction for snow and ice—and plaintiffs have been tripping up on it ever since.

This weird little exception to the reasonable care rule is somewhat understandable on a practical level: clearing out snow in the middle of a New England winter is a lot of work. But even Rhode Island4 snidely parted ways with Massachusetts on this years ago, laconically noting that:

We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain.

-Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773 (1971)(emphasis added)

The SJC has basically adopted this reasoning, albeit in slightly less-quotable form, and scattered enough quick-melt salt on the old “natural accumulation” rule to do away with it forever. It even liked this development so much that it opted to make the rule fully retroactive—complete with the usual inevitable assurances that, really, there’s no reason to think that any litigation-minded plaintiff would actually be impolite enough to reach for the blank checkbook this might present for anyone who has taken a spill on some ice in the past 150 years.5

As of Papadopolous, the SJC has now finally—mercifully—brought Massachusetts to the very cutting edge of postmodern snow law. Bonus: this decision lands in the middle of one of the Commonwealth’s hottest summers on record.

Happy shoveling!

  1. The SJC has provided a perfectly serviceable review of the 150 years of relevant law within its opinion which I don’t feel any need to retread here. []
  2. at least those not served a la mode []
  3. if not moral and social []
  4. Rhode Island! A place so married to tradition that it is the last American state to continue to openly celebrate Victory over Japan Day! []
  5. I kid. This was, of course, a major change to a common law rule, a circumstance which generally demands retroactivity. I just love how every time any court announces a groundbreaking retroactive rule it always seems to feel obligated to add that this won’t really, y’know, change anything, and there’s certainly no reason to believe that it will inspire a fresh wave of legal action. []

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Padilla v. Kentucky : Gift Basket or Dirty Bomb?

March 31st, 2010

We’re still only a few hours out from the release of today’s Supreme Court decision in Padilla v. Kentucky-the facts and issues of which I’ve previously summarized here—and there’s no way I’m going to get through any kind of analysis of this thing without resorting to rank superlatives. So if you’ll indulge me, let’s run ‘em down right up front:

(1) Padilla is the single most significant stand that the Court has taken on behalf of the rights of non-citizens in my lifetime. It will provide a massive, widespread, immediate benefit for innumerable deserving1 people, including many of my clients.

(2) Padilla has created the single most burdensome obligation that the Court has ever imposed upon the criminal defense bar.

(3) I have never had such thoroughly mixed reservations about a case that I should otherwise love so much.

Okay, deep breaths. Let’s break this down:

(1) What does Padilla mean for non-citizens?

As of today, any non-citizen present in the United States who enters a guilty plea to a criminal offense which will carry a “truly clear” consequence of future deportation (and, arguably, other immigration consequences) who is represented by counsel must be advised by their attorney of this consequence. In cases in which the immigration outcome is less certain (as it is in many, if not most criminal cases), counsel is obligated to advise that the plea may carry a risk of deportation. Non-citizens who have not been properly advised of these risks and/or consequence may be eligible to withdraw their pleas based upon ineffective assistance of counsel.2

(2) What does Padilla mean for criminal defense attorneys?

In a perfect world, the Supreme Court would have mailed courtesy copies of this decision to every criminal defense attorney in the United States firmly affixed to a very large bottle of J+B. Once the full implications of this ruling really start to sink in, most of them will be needing a stiff pour.

Simply put: Padilla requires the defense bar to learn a lot about federal immigration law, and very quickly. Imagine a baker who specializes in artisan breads arriving in the kitchen one morning to find that his boss has amended his job description to include the creation, production, and presentation of French pastries—with no concomitant training opportunities or salary increase. It’s kind of like that.

As of today, criminal defense attorneys throughout the United States are now required—upon pain of Constitutional ineffectiveness—to be conversant in all 33 definitions of the term “aggravated felony” outlined in the Immigration and Nationality Act as well as specific federal interpretations of each of these definitions and applications of these definitions to their local jurisdiction’s criminal statutes [PDF]. They will be expected to know exactly what does and does not constitute a “conviction”—a term which, under federal immigration law, is defined far more broadly than its equivalent in many states, including Massachusetts—and to have a working knowledge of how a client’s past criminal record may combine with the plea in question to raise a serious risk of deportation. They will be expected to have a working knowledge of “crimes of moral turpitude,” and to be able to articulate the legal and semantic differences between inadmissible and deportable offenses. They should probably learn a bit about mandatory detention [PDF] and the mechanics of immigration removal proceedings. This is, needless to say, a lot to learn at once, and replete with moving parts.

If you’ll allow me one more analogy: Padilla has drafted criminal attorneys to serve in the ranks of the armies of Immigrationland. It may not be what most of them signed up for, but they now have their marching orders and it seems that “theirs is not to make reply / theirs is not to question why.”

(3) What else is going on here?

Plenty. I’ll have more to say about this shortly, but here are a few immediate thoughts:

Padilla is kind of an interesting counterpoint to last year’s monumental Sixth Amendment ruling in Melendez-Diaz v. Massachusetts, in which the Court held that the government must introduce live supporting testimony from the chemist responsible for the analysis of a controlled substance before evidence of that substance may be used against a criminal defendant. Where Melendez-Diaz has caused massive systemic migraines for prosecutors and law enforcement, Padilla will now impose what I have to assume will be a comparable burden of time and resources upon the defense bar. In both cases, of course, the Court has been suspiciously quick to claim that these two sweeping, transformative decisions really won’t “commence [a] parade of horribles” (Melendez-Diaz) or “open the floodgates” (Padilla).

This is also the first time of which I’m aware that the Supreme Court has gone as far as to require defense counsel to be aware of a “collateral consequence” of a guilty plea. For as much as I hate slippery-slope arguments, there is a serious question here as to potential future challenges. What if a defendant isn’t informed that his conviction will leave him ineligible to receive federal student loan assistance? To serve in the U.S. military? To obtain a real estate license, or sit for a state bar exam? Do we need to provide each defendant with a checklist for these and every other possible potential future foreseeable consequence?

For as much as I wholeheartedly agree with Justice Stevens’s contention that the possibility of a lifetime of exile from the United States is perhaps the most serious collateral consequence imaginable, the fact remains that it is still a federal issue which is entirely separate from state-based criminal systems. Just a thought.

Again, though, these are all initial impressions within hours of first reading this decision. I’ll likely have more to say—including Massachusetts-specific analysis—once I’ve digested this thing a bit more, but my overall response (as an immigration practitioner, as least) is a feeling that justice has been done here. Despite my quibbling above, I fully agree with Justice Stevens:

Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

  1. And, arguably, not-so-deserving… []
  2. Far more will likely be limned from this 18-page opinion in the coming years, but I think that this is a pretty fair summary of the basic holding. []

Immigration Appeals, U.S. Supreme Court

Hold me closer, tiny lancer

December 18th, 2009

“Tiny Weapons” could be (but is not) a sparkly J-pop duo or a bearded, Brooklyn-based indie-folk collective. Happily, it is instead the focus of today’s Appeals Court decision in Commonwealth v. Cruz-Rivera (08-P1758, Dec. 18, 2009). In relevant part, the court sensibly held that:

Contrary to the motion judge’s findings, there was no evidence that pill-bottle sized weapons had “proliferated” nor was there evidence that the defendant had a specific history of using tiny weapons.

Cruz-Rivera was subjected to a traffic stop after he was observed operating his vehicle in “an unsafe manner.” Although there was some belief that he might somehow be a person of mild interest in connection  an incident in Lowell,1 there simply wasn’t enough to hold him or charge him with anything. Following a routine patfrisk for officer safety, the defendant was declared free to leave just before officers decided—and hey, why not, while we’ve got him here—to perform a detailed, comprehensive, fine-tooth search of his vehicle for reasons never really clearly stated on the record in any kind of way that should have passed the laugh test.

Almost immediately at the outset of the search, officers proceeded to examine a large-ish “vitamin pill bottle” in the vehicle’s center console, in which they found… well, you can probably guess. Nothing my mother ever made me take—although it might have gotten me through my chores  a lot faster.

The defendant moved to suppress the evidence as the result of an unlawful search, and the motion judge found that “[b]oth officers [had] received training indicating a proliferation of smaller weapons that are easily concealed in small containers…. which include razors, knives, and pen-sized single-shot guns, ” although it was “perhaps a relative longshot” that they might find a “small knife or a one-shot revolver.”2

On appeal, the Appeals Court reversed the motion judge, holding that:

On this record, it simply was not reasonable to believe that the defendant might, upon his release with a message that he was free to go, enter his car, reach into the console, open a pill bottle, extract a weapon smaller than four and one-half inches by one and three-fourths inches and use it in an effort to harm the two nearby, fully armed police officers who had just released him. Indeed, allowing police to search the pill bottle under the circumstances this record reveals would, as a practical matter, essentially remove most constitutional brakes on police power to search the contents of motor vehicles stopped for routine traffic incidents.

Exactly the right result. Remember:  this was a vitamin pill bottle. We’re not talking about a massive bottle of Vicodin with someone else’s name on it, a green plastic box labeled “Rebekah’s Pot,” or, indeed, a dodgy titanium cylinder marked “CAUTION! TINY WEAPONS INSIDE!” Having found no other reason to hold the defendant, the police conducted an invasive search of his vehicle which included areas that no reasonable person would ever believe to contain weapons, and then attempted to justify the whole thing after the fact with a weird explanation of how small weapons can be, sometimes, in the known universe. (Also, quick protip: Any true collector knows that tiny weapons begin to lose their value pretty much immediately unless they are protected from the elements in a childproof screwtop vitamin bottle.)

As I have discussed in this space more than once already, officer safety is serious business. I don’t discount the entirely-valid concerns that should arise when police engage a suspect for even the most routine traffic stops, and officers should be encouraged to take all reasonable measures to protect themselves—but there’s nothing wrong with an appellate court stepping in to ensure that the limits of these searches are properly circumscribed. Having already decided that a suspect is free to go, there is simply no defensible reason to conduct an invasive search of every container in his vehicle.

Well, anyway. If you are the kind of person who is inclined to believe that criminals are always “getting off” on “technicalities,” (and it happens far less often than you might think, anyway) you may want to read these facts again—and kindly remember that the Constitution is never a technicality, at least not here in the Commonwealth.

  1. Not quite as bad as it sounds: see footnote 2 in the opinion []
  2. Unless, of course, the defendant was wanted for questioning in connection with the assassination of President Garfield. []

Criminal Appeals, massachusetts

Melendez-Diaz goes ballistic

November 22nd, 2009

Anyone who hated Melendez-Diaz v. Massachusetts now finds themselves looking down the barrel of Commonwealth v. Hollister, App. Ct. No. 08-P-1080 (Nov. 17, 2009), in which the Appeals Court has reversed the conviction of a defendant who did not have the opportunity to cross-examine the technician who determined that the loaded gun at issue was a “firearm.”

Melendez-Diaz was, of course, the most important criminal law ruling from the Supreme Court’s last term. As I’ve already discussed (more than you ever really need to know here and here) it was an elegant and, at base, nearly inarguable Scalia decision which held that introducing certifications of drug lab results without the opportunity to cross-examine their authors at trial is a violation of a defendant’s Sixth Amendment right to confront all witnesses against him. There was never any question whether Melendez-Diaz would be extended to ballistics evidence—as, indeed, it recently formally has been in Morales v. Massachusetts, 129 S. Ct. 2858 (2009)—but the real question was always “how far?” Hollister provides an interesting signpost in that direction.

Hollister concerned an unlicensed possession of a firearm charge arising from a loaded gun found in the glove compartment of the defendant’s truck. During a bench trial, the judge had an opportunity to inspect the weapon itself, as well as a certificate from a ballistics technician who had tested the gun and determined that it fit the statutory definition of a “firearm.” This definition includes:

…a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.

—G.L. c. 140, § 121 (emphasis added)

This definition necessarily requires that each and every weapon at issue in a gun possession case must be tested by a certified ballistics technician to determine whether the thing is actually operable, just as the chemical makeup of suspected illegal substances must be scientifically confirmed in a drug lab. While the process of testing out guns may be a bit less science-y (if not a lot more fun) than that of spectrographically analyzing dodgy powders, it is still evidence prepared in anticipation of trial which, if properly proven, will provide definitive proof of a significant element of the charge.

It is, in other words, squarely within the kind of evidence which Melendez-Diaz has held must be supported by live testimony at risk of violating the defendant’s Constitutional rights. Under traditional appellate review standards, it becomes the Commonwealth’s burden in each case in which such a violation may have occurred to prove that this Constitutional error was “harmless beyond a reasonable doubt.”

It’s easy to imagine a drug case in which failure to give the defendant the chance to cross-examine the lab tech on his findings might be held to constitute harmless error, and Massachusetts courts have been happy to do so more than once in the months since Melendez-Diaz came down. There are plenty of circumstantial factors—smell, appearance, results of field testing, the presence of scales, cash, and drug paraphernalia, and/or your massive library of live Phish bootlegs, etc.—which may be considered in order to find that any given substance is an illegal drug, and the Commonwealth routinely introduces these right along with lab certificates in such cases. But the only truly reliable way to determine if a given gun is a “firearm” in the statutory sense1 is to shoot it at something and see what happens. (To be fair, the [admittedly slight] odds that the loaded gun found in the defendant’s truck in Hollister was not actually a “firearm” were probably actually much better than those that one of the plastic sandwich baggies full of white powder in Melendez-Diaz was not some kind of illegal substance. On a purely practical level, there is at least some rationally justifiable reason to keep a fake or broken gun handy—never know whom you may need to scare off, I suppose—at least more so than stashing baggies full of baking soda or whatever).

Hollister was tried and appealed pre-Melendez-Diaz, and really doesn’t have much practical use in a world where prosecutors have already taken to introducing the supporting testimony of analysts of every kind to preclude this issue altogether. Still, it’s a natural and welcome development in post-Melendez-Diaz caselaw, and the Appeals Court has [marksmanship metaphor of your choice here] on this one.

  1. Assuming that no one is prepared to testify that they had seen it fired before []


Could Professor Gates have been convicted of disorderly conduct?

July 23rd, 2009

So. Gatesgate.1

For as eminently debatable as this week’s arrest of Professor Henry Louis Gates and its aftermath may be for people who are properly qualified to discuss the state of race relations in America, I am not one of those people.2 But I have been excited to see how much attention this story has brought to the Commonwealth’s colonial-era disorderly conduct statute, and this is as good a time as any for us to review once again why its continued existence is nothing but an embarassment to us all.

Professor Gates, as we all know by now, was arrested for disorderly conduct on his own front porch in Cambridge last week. Police had been called by a concerned citizen who reported a burglary while watching Gates and his driver attempting to strongarm a door to which Gates had misplaced his keys after a trip to China. The police arrived and established Gates’s identity with a photo ID which included the address in which they were standing.

According to the police report, Gates then became upset and expressed his opinions regarding the injustice of the situation, the Cambridge Police Department, and the treatment of African-American men by police in the United States, at which point he was cuffed and arrested for disorderly conduct as a small crowd gathered. The charge was subsequently killed several days later, together with the usual “not our best moment, not his best moment” statement from the Cambridge PD.

Letting this go was the right move for all concerned, obviously. But what if the case had gone forward?

As I have previously discussed as thoroughly as I cared to, the Commonwealth’s disorderly conduct statute is a facially unconstitutional 400-year-old mess that has been preserved only through willful acts of judicial alchemy. Unfortunately, its many vagaries and moving parts have made it a reliable standby in the collective arsenal of law enforcement officers throughout the Commonwealth and, right or wrong, it is all too common to see this charge brought after an arrest in which the defendant has forgone his Fifth Amendment right to remain silent in favor of his First Amendment right to express his opinion about the situation.

The defense’s first strategy would almost certainly have been to move to dismiss the charge. Looking at only one of this crime’s many possible elements, it is highly unlikely that Gates’s alleged conduct (even assuming that it was just as obnoxious as reported) caused or created a risk of “public inconvenience or alarm.” According to the police report, his confrontation with police began in his own kitchen after he had provided them with evidence of his identity; he was then was invited to step out and continue the discussion on his own front porch. Although the police report alleges that a small crowd was gathering at this point, the fact remains that the officers had no reason to be there once they had established that Gates had not just burgled the place, and it seems highly unlikely that that this gracefully-aging gentleman with a cane, a bronchial infection, 12 hours of jet lag, and a Harvard ID was otherwise likely to pose any risk of “public inconvenience or alarm.”3

The “public” element aside, however, there is the basic issue of a citizen’s right to vocally disagree with the police. While most reasonable people can agree that it’s probably best to keep calm in the face of possible arrest, it is also understandable that, as the U.S. Supreme Court has previously held, your average law-abiding citizen is going to get a little worked up if he feels that he is being treated like a criminal for no good reason. Despite the best efforts of the police to work the magic words “tumultuous” and “served no legitimate purpose” into the affidavit in support of the criminal complaint [page 4], Gates’s conduct closely resembles that of defendants in at least two other Massachusetts appellate cases4 in which disorderly conduct convictions have been reversed:

In Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), police had just witnessed the defendant assaulting his girlfriend before they moved in to arrest him; he then began flailing his arms and yelling loudly about his civil rights and such. In reversing his conviction for disorderly conduct, the Appeals Court noted that his behavior was not “extreme” or otherwise threatening, and was not therefore statutorily “tumultuous.”

Commonwealth v. Zettel, 46 Mass. App. Ct. 471 (1999), my personal favorite in this line of cases, held that a difference of opinion with a police officer is a “legitimate purpose” that may provide a proper defense against a charge of disorderly conduct. Although the defendant in Zettel had actually kicked a cop in the shins following an argument with him over her right to a parking spot in Fall River, the court held that her conduct arose from a “legitimate purpose” for causing a scene. But this is consistent: Massachusetts and other jurisdictions have found “legitimate purpose” for causes as diverse as protecting your water supply and attempting to save your marriage, so why not challenging a police officer who is expressing an intent to arrest you?

For as much fun as this little Gedankenexperiment may be, we are still talking about a criminal offense which carries up to six months of committed time. Disorderly conduct charges are regularly and routinely brought against defendants of every description around the Commonwealth—most of whom do not have Al Sharpton on speed-dial—under nearly identical circumstances. Let’s hope that all of this publicity will finally shame the legislature into putting G.L.c. 272 Sec. 53 out of its misery.

  1. Note: Nobody should ever call this incident “Gatesgate,” for any reason. []
  2. For what it’s worth, I believe that the heartless and disturbingly insensitive prosecution of UMass Amherst student Jason Vassell is a far better example of the point that Gates and his supporters have been trying to make… it was really only the fact that it happened in Western Massachusetts that has kept it out of the conversation. []
  3. This is generally defined as “affecting or likely to affect persons in a place to which the public or a substantial group has access.” Commonwealth v. Molligi, 70 Mass. App. Ct. 108 (2007). So maybe a few people could hear him from the sidewalk—but so what? I just don’t see it. “Public” really should mean “public.” As a policy matter, this statute is supposed to preserve public order, not the sensibilities of police officers. []
  4. There are many more, but these are the two that immediately came to mind when I read the Gates police report []

disorderly conduct, massachusetts, stupid laws


July 2nd, 2009

So you’ve been caught stealing from The Electric Company.1  Your trial and conviction were otherwise unremarkable, and you’re short on good issues for appeal. Might as well try this:

The defendant lastly contends that the electricity and the gas sold by NSTAR do not constitute “property”…

Commonwealth v. Catalano, No. 08-P-1340 (July 1, 2009)

This is, of course, yet another appellate argument that sounds totally crazy when you say it out loud. Sure, the appellant is saying, maybe the electric company generates, manages, and distributes electricity, but that doesn’t mean that they own it! As The Rascals once never sang: All the world over, so easy to see… Currents of electrically charged particles passing by means of conductors from one body to another just got to be free!

Although perhaps morally questionable, this position is actually legally defensible. On first read, the definition of “property” outlined in the larceny statute really doesn’t seem to include electricity, or anything that resembles electricity.2 While it is otherwise remarkably thorough—e.g., ”data while in transit,” “a beast or a bird which is ordinarily kept in confinement”—the statute makes no mention of household utilities as property subject to larceny.

Of course, the court also doesn’t want to be responsible for converting the Commonwealth’s entire electric grid into some kind of wacky Napster-style free-for-all. So, soldering iron in hand, the panel expertly grafts public utilities into the larceny statute’s “personal chattel” provision.

Chattel” is, of course, one of the grande ensemble of Frenchified lawyerin’ words which came to dominate English common law after the  Norman Conquest. It’s really just a fancy way to say “movable property,” and is best defined as pretty much anything that could logically complete the phrase: “Hey, that guy just stole my _________!” As the Appeals Court is quick to note, gas has been viewed as a chattel subject to larceny in the Commonwealth since at least 1853. But no one had ever bothered to ask about electricity before now.

Bereft of any relevant Massachusetts caselaw, the court reluctantly resorts to actual science. After (presumably) dispatching a law clerk for a field trip to the Museum of Science’s Van de Graaf generator exhibit, the Court reports back that:

…electricity, like gas, also may be stored and conveyed. Storage is possible in a capacitor, and may be transmitted through wires.

Well, that and the U.S. Supreme Court already found that there is a property interest in electricity 70 years ago, as have several other states. So while this “would have been a novel question one hundred years ago,” and “the defendant is correct that this precise issue has never been addressed in Massachusetts”:

…it is a well-established legal principle that electricity and gas are personal property that may be the subject of larceny.

  1. Better them than 3-2-1 Contact, which no doubt would unleash the unchecked extralegal vigilantism of  The Bloodhound Gang. []
  2. ”The term “property”, as used in the section, shall include money, personal chattels, a bank note, bond, promissory note, bill of exchange or other bill, order or certificate, a book of accounts for or concerning money or goods due or to become due or to be delivered, a deed or writing containing a conveyance of land, any valuable contract in force, a receipt, release or defeasance, a writ, process, certificate of title or duplicate certificate issued under chapter one hundred and eighty-five, a public record, anything which is of the realty or is annexed thereto, a security deposit received pursuant to section fifteen B of chapter one hundred and eighty-six, electronically processed or stored data, either tangible or intangible, data while in transit, telecommunications services, and any domesticated animal, including dogs, or a beast or bird which is ordinarily kept in confinement.” G.L. c. 266, § 30(2 []