Atkinson v Garland (Rosen) - Lifetime 2A prohibition

[Euler]

I don't expect this to go anywhere, but it exists.

 

Docket for Northern District of Illinois
Docket for Seventh Circuit Court of Appeals

District Opinion said:

Federal law precludes Patrick Atkinson, a convicted felon, from possessing a firearm.

...

On October 16, 1998, Atkinson pled guilty to one count of mail fraud in violation of 18 U.S.C. § 1341, a Class C felony.

...

Since completing his sentence, Atkinson has not been convicted of any additional crimes and has no history of violence.

...

In his complaint, Atkinson acknowledges that his felony conviction prohibits him from possessing a firearm under both federal and Illinois law. He alleges, however, that his "unique personal circumstances" make the application of this law to him unconstitutional.

...

Based upon binding precedent, Atkinson’s claim lacks merit. As a result, the Court grants Defendants' motion to dismiss and dismisses this case with prejudice.

 

CourtListener is a bit deficient in the circuit docket department, so here's an extract from PACER.

General Docket Seventh Circuit Court of Appeals

Court of Appeals Docket #: 22-1557 Docketed: 04/05/2022 Nature of Suit: 2440 Other Civil Rights Patrick Atkinson v. Merrick Garland, et al Appeal From: Northern District of Illinois, Eastern Division Fee Status: Paid

Case Type Information: 1) civil 2) us 3) -

Originating Court Information: District: 0752-1 : 1:21-cv-00291 Court Reporter: Laura LaCien, Court Reporter Trial Judge: John Robert Blakey, District Court Judge Date Filed: 01/18/2021 Date Order/Judgment: Date NOA Filed: 03/15/2022 04/05/2022

05/23/2022 14 Amicus brief filed by Amici Curiae FPC Action Foundation and Firearms Policy Coalition by consent. Paper copies due on 05/31/2022. Electronically Transmitted. [14] [7237858] [22-1557] (GW) [Entered: 05/23/2022 11:57 AM] 05/26/2022 15 Paper copies of appellant brief filed by Appellant Patrick Atkinson. [15] [7238793] [22-1557] (LCP) [Entered: 05/26/2022 02:04 PM] 05/27/2022 16 Paper copies of amicus brief filed by Amici Curiae FPC Action Foundation and Firearms Policy Coalition. [16] [7238956] [22-1557] (SK) [Entered: 05/27/2022 09:41 AM] 06/23/2022 17 Motion filed by Appellees Merrick B. Garland and Marvin G. Richardson to extend time to file appellee brief. [17] [7244222] [22-1557] (Hazel, Steven) [Entered: 06/23/2022 03:22 PM] 06/24/2022 18 Amended motion filed by Appellees Merrick B. Garland and Marvin G. Richardson to extend time to file appellee brief. [18] [7244386] [22-1557] (Hazel, Steven) [Entered: 06/24/2022 11:25 AM] 06/24/2022 19 ORDER re: 1. Motion for Extension of Time to File the Government's Brief. [18] 2. Amended Motion for Extension of Time to File the Government's Brief. [17] The motion is GRANTED and briefing will proceed as follows: Appellees' brief due on or before 07/25/2022 for Merrick B. Garland, Attorney General of the United States and Marvin G. Richardson. Appellant's reply brief, if any, is due on or before 08/15/2022 for Appellant Patrick Atkinson. CMD [19] [7244409] [22-1557] (MM) [Entered: 06/24/2022 12:03 PM] 07/25/2022 20 Submitted appellee brief by Steven H. Hazel for Appellees Marvin G. Richardson and Merrick B. Garland. [20] NOTE: Access to this entry is limited to counsel of record. Once the document is approved by the court, it will be filed onto the court's docket as a separate entry which will be open to the public. [7250389] [22-1557] (Hazel, Steven) [Entered: 07/25/2022 03:47 PM] 07/25/2022 21 Appellee's brief filed by Appellees Merrick B. Garland and Marvin G. Richardson. Paper copies due on 08/01/2022. Electronically Transmitted. REMINDER: Hearing notices are mailed shortly before the date of oral argument. Please note that counsel's unavailability for oral argument must be submitted by letter, filed electronically with the Clerk's Office, no later than the filing of the appellant's brief in a criminal case and the filing of an appellee's brief in a civil case. See Cir. R. 34(b)(3). The court's calendar is located at http://www.ca7.uscourts.gov/cal/argcalendar.pdf. Once scheduled, oral argument is rescheduled only in extraordinary circumstances. See Cir. R. 34(b)(4), (e). [21] [7250409] [22-1557] (KRA) [Entered: 07/25/2022 04:14 PM] 07/26/2022 22 NOTICE: Attorney Mr. Steven H. Hazel for Appellees Merrick B. Garland and Marvin G. Richardson will not be available for oral argument September 28, 2022. [22] [7250450] [22-1557] (Hazel, Steven) [Entered: 07/26/2022 06:47 AM] 07/28/2022 23 Paper copies of appellee brief filed by Appellees Merrick B. Garland and Marvin G. Richardson. [23] [7251092] [22-1557] (KRA) [Entered: 07/28/2022 10:29 AM]

[Euler]

The court is trying to find a time to schedule oral arguments.

 

07/28/2022 23 Paper copies of appellee brief filed by Appellees Merrick B. Garland and Marvin G. Richardson. [23] [7251092] [22-1557] (KRA) [Entered: 07/28/2022 10:29 AM] 08/16/2022 24 Instanter motion filed by Appellant Patrick Atkinson to file Appellant's Reply Brief. [24] [7254746] [22-1557] (Sigale, David) [Entered: 08/16/2022 12:51 AM] 08/16/2022 25 ORDER re: Motion for leave to file appellant's reply brief, filed on 8/16/2022. The motion is GRANTED. The clerk shall file instanter the reply brief electronically submitted with the motion. [24]. SCR [25] [7254777] [22-1557] (FP) [Entered: 08/16/2022 09:15 AM] 08/16/2022 26 Appellant's reply brief filed by Appellant Patrick Atkinson, per order. Paper copies due on 08/23/2022. Electronically Transmitted. REMINDER: Hearing notices are mailed shortly before the date of oral argument. Please note that counsel's unavailability for oral argument must be submitted by letter, filed electronically with the Clerk's Office, no later than the filing of the appellant's brief in a criminal case and the filing of an appellee's brief in a civil case. See Cir. R. 34(b)(3). The court's calendar is located at http://www.ca7.uscourts.gov/cal/argcalendar.pdf. Once scheduled, oral argument is rescheduled only in extraordinary circumstances. See Cir. R. 34(b)(4), (e). [26] [7254786] [22-1557] (MAN) [Entered: 08/16/2022 09:28 AM] 08/23/2022 27 Paper copies of appellant reply brief filed by Appellant Patrick Atkinson. [27] [7256174] [22-1557] (KRA) [Entered: 08/23/2022 11:10 AM] 09/01/2022 28 NOTICE: Attorney Mr. Steven H. Hazel for Appellees Merrick B. Garland and Marvin G. Richardson will not be available for oral argument October 27. [28] [7258231] [22-1557] (Hazel, Steven) [Entered: 09/01/2022 04:11 PM] 09/16/2022 29 NOTICE: Attorney Mr. Steven H. Hazel for Appellees Merrick B. Garland and Marvin G. Richardson will not be available for oral argument November 7. [29] [7261202] [22-1557] (Hazel, Steven) [Entered: 09/16/2022 05:40 PM]

[Euler]

Oral arguments are set for November 8 in Chicago.

 

09/20/2022 30 Argument set for Tuesday, November 8, 2022, at 9:30 a.m. in the Main Courtroom, Room 2721, of the United States Court of Appeals for the Seventh Circuit, 219 S. Dearborn Street, Chicago, Illinois. Each side limited to 10 minutes. [30] [7261618] [22-1557] (SK) [Entered: 09/20/2022 10:19 AM] 09/20/2022 31 Received argument confirmation from David G. Sigale for Appellant Patrick Atkinson. [31] [7261879] [22-1557] (Sigale, David) [Entered: 09/20/2022 06:06 PM] 09/29/2022 32 Appearance form filed by Attorney Kevin B. Soter for Appellees Merrick B. Garland and Marvin G. Richardson. [32] [7263709] (L-No; E-Yes; R-No) [22-1557]--[Edited 09/29/2022 by PS - to reflect the addition of counsel.] (Soter, Kevin) [Entered: 09/29/2022 10:42 AM] 09/30/2022 33 Filed Notice of Substitution of Public Officer by Appellees Merrick B. Garland and Marvin G. Richardson. [33] [7264126] [22-1557] (Soter, Kevin) [Entered: 09/30/2022 02:55 PM] 09/30/2022 34 Appellee Marvin G. Richardson substituted by Appellee Steven M. Dettelbach in 22-1557, pursuant to FRAP 43(c). [34] [7264194] [22-1557] (FP) [Entered: 09/30/2022 04:55 PM] 10/06/2022 35 Argument reset for Tuesday, November 8, 2022, at 9:30 a.m. in the Main Courtroom, Room 2721, of the United States Court of Appeals for the Seventh Circuit, 219 S. Dearborn Street, Chicago, Illinois. Each side limited to 15 minutes. [35] [7265080] [22-1557] (LCP) [Entered: 10/06/2022 11:14 AM]

[Molly B.]

Seventh Circuit Court of Appeals Oral arguments - Nov. 8th

This is the first case I know of to be argued in U.S. 7th Circuit since Bruen and the court's position and questions are spot on with Bruen.  Enjoy!

[RANDY]

Sounds like the Government has already been told you loose and the plaintiff wins.

[Molly B.]

"The Second Amendment has gone from a second class right to a SUPER CHARGED RIGHT."

[DoYouFeelLucky]

A couple of years ago one of our IA BLM activists gave a fairly well-reasoned talk on why the blanket firearms prohibition for those convicted of felonies was racist in nature.  I think shortly after that talk she was told to STFU by her democrat over-lords.  She recently came back out in support of the IA Freedom Amendment and I think they may have stuffed her in a crate and sent her to team Tulsi.

 

[Euler]

It was the Gun Control Act of 1968 that made it illegal "to sell or otherwise dispose of any firearm or ammunition to any person ... under indictment for, or ... convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" (18 USC 922(d)(1)) and "for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess ... any firearm or ammunition" (18 USC 922(g)(1)).

 

(Aside: Judicial Second Amendment Case Discussion > People Under Felony Indictment Have the Right to Buy Guns)

 

Prior to that, only (essentially) violent felons were prohibited from acquiring and possessing firearms. The discussion gets a little complicated, because there are a lot of crimes that are now classified as felonies that have historically been classified as misdemeanors. Once upon a time, the difference between a misdemeanor and a felony was that felonies were crimes for which a convicted person could receive a death sentence. The choice was either execution or incarceration with a lifetime suspension of some civil liberties upon release (like voting and owning firearms). In particular, murder, rape, burglary, and treason were crimes for which a possible sentence was death. (I wouldn't consider treason a violent crime myself, but the founding fathers really didn't like traitors.)

 

Today, copyright violation (for example) is a felony. Never in history has the death sentence been an option for copyright violation.

 

So what are the text, history, and tradition that apply? That felons can't own firearms? That has been true since the founding. That what were once misdemeanors are now felonies? That seems like a better argument to me, but I didn't get the impression that Atkinson's lawyer is ready to make it. Neither side addressed "grade inflation." One judge clearly was displeased that neither side had done any historical analysis.

 

This is not going to be an easy decision for the court, because both sides presented crappy cases. It shouldn't be the judges' job to do the lawyers' jobs for them. As it stands, Atkinson is the plaintiff. The plaintiff has the burden. I think that Atkinson (i.e., Atkinson's lawyer) hasn't met the burden.

 

On 11/11/2022 at 10:29 PM, DoYouFeelLucky said:

A couple of years ago one of our IA BLM activists gave a fairly well-reasoned talk on why the blanket firearms prohibition for those convicted of felonies was racist in nature. ...

 

The population statistics in 1968 were about 75% of people in the US were white, 15% were black, and 10% were Hispanic. However, felons were about 50% black, 40% white, and 10% Hispanic. So one way to affect black people disproportionately was to prohibit all felons, not just violent felons, from owning firearms. The proportions aren't terribly different today. I guess the argument was/is that white felons just have to take one for the team.

[Molly B.]

Judge Wood clearly said it was not Atkinson's responsibility to plead his case, she said with Bruen it is now the feds obligation to make their case. She said if this is all you have,  then Atkinson wins and feds lose..

[2A4Cook]

Knock on wood ... but judges sometimes play devil's advocate during oral argument and decide the opposite of where they appeared to be going.  Not saying it's the case here, just suggesting that a win for the P shouldn't be taken for granted just yet. 

[RANDY]

On 11/12/2022 at 6:45 AM, 2A4Cook said:

Knock on wood ... but judges sometimes play devil's advocate during oral argument and decide the opposite of where they appeared to be going.  Not saying it's the case here, just suggesting that a win for the P shouldn't be taken for granted just yet. 

My gut feeling is they will remand to give the feds a chance to come up with a better argument.  But if they come back with the same BS there goose is cooked.

[Tvandermyde]

this was well worth the listen. Despite my least favorite lawyer not improving his skills in articulation, these judges are freaking out and the super charged right was just efffing golden. 

The DoJ is either afraid to adjust their position and take the helping hand that was being offered to them or to scared.  My bet is it gets remanded, but the point should have been followed up on that as the judge said, if there is not going to be anything new, then it is a matter of law and no remand is necessary I caught Wood and Scutter being two of the judges didn't get the third name if someone caught that. 

 

but unlike what CA and a MA are doing, these three judges clearly have read New York, see the mandate and implications of New York and I would have no problem arguing any number of cases or issues in front of them -- especially if this is the level of competence, we are going to see from the DoJ . 

[Euler]

On 11/12/2022 at 7:14 AM, Molly B. said:

Judge Wood clearly said it was not Atkinson's responsibility to plead his case, she said with Bruen it is now the feds obligation to make their case. She said if this is all you have,  then Atkinson wins and feds lose..

 

She was basically saying that Atkinson would win by default if the DOJ didn't present a defense case. However, Bruen hasn't changed the fact that the burden in any civil case is the plaintiff's, just like the burden is the prosecutor's in a criminal case. Any ruling the court makes still has to be in accordance with how the legal system works overall.

 

If CA7 orders a new trial, Atkinson and his (IMO) crappy lawyer should consider it a gift. The judges didn't want to do that as "kicking the can down the road" (i.e., avoiding responsibility themselves), especially knowing that any decision the district makes on reconsideration is still going to come back at them.

 

Similarly, if CA7 sustains the district decision, the DOJ should consider it a gift, too.

 

The problem is that both sides went to court without a case. Kicking it back to be re-litigated might be the smart move. Maybe the first side to come up with an actual case will win.

[Molly B.]

On 11/12/2022 at 10:10 AM, Tvandermyde said:

 I caught Wood and Scutter being two of the judges didn't get the third name if someone caught that.

 

 

 

Wood, Scudder, Sykes

[Euler]

Hmm, so that was Sigale for the plaintiff....

 

10/14/2022 36 Received argument confirmation from Kevin B. Soter for Appellees Steven M. Dettelbach and Merrick B. Garland. [36] [7266645] [22-1557] (Soter, Kevin) [Entered: 10/14/2022 02:48 PM] 10/28/2022 37 Received argument confirmation per argument email form for Attorney Mr. Kevin Benjamin Soter for Appellees Merrick B. Garland and Steven M. Dettelbach. [37] [7269825] [22-1557] (SK) [Entered: 10/28/2022 02:50 PM] 10/31/2022 38 Received argument confirmation per argument email form for Attorney Mr. David G. Sigale for Appellant Patrick Atkinson. [38] [7270036] [22-1557] (SK) [Entered: 10/31/2022 11:17 AM] 11/08/2022 39 Case heard and taken under advisement by panel: Diane S. Sykes, Chief Judge; Diane P. Wood, Circuit Judge and Michael Y. Scudder, Circuit Judge. [39] [7272132] [22-1557] (LCP) [Entered: 11/08/2022 02:07 PM] 11/08/2022 40 Case argued by Mr. David G. Sigale for Appellant Patrick Atkinson and Mr. Kevin Benjamin Soter for Appellees Merrick B. Garland and Steven M. Dettelbach. [40] [7272133] [22-1557] (LCP) [Entered: 11/08/2022 02:07 PM]

[Tvandermyde]

yea its Segale -- my least favorite lawyer for 2A issues.

 

1. I don't think he's gotten better at his oral arguments

2. One of the judges said neither side was helpful in the briefs -- referring to history necessary under the New York standard which tells me he hasn't gotten any better at those either. 

3. they most likely will remand and he'll win this because of New York and these judges following New York along with the Government's poor work and trying to bootstrap old "retired" case law. Kyle rittenhouse could argue this case and win.

 

here are my thoughts on the government's part of the arguments

 

 

 

[Tvandermyde]

(Caution, language)

 

here is my second part of my review of the government's side of Atkinson

 

 

Edited November 16, 2022 at 05:20 PM by Molly B.
Language. Not safe for work or children

[Tvandermyde]

here is my review of Range V Lombardo which was argued by the same attoerney that argued the Government's case in Atkinson. 

 

Same arguments but the judges bought them contrary to what the 7th circuit was saying at orals.

 

some language is in here

 

 

 

[Smallbore]

So this court is saying "once a criminal always a criminal", a law breaker can never be rehabilitated, can never pay his debt to society, is never to be respected. Wow! Talk about self righteous ******. (Not my censoring)

Edited November 27, 2022 at 08:40 PM by Smallbore

[SiliconSorcerer]

On 11/27/2022 at 2:39 PM, Smallbore said:

So this court is saying "once a criminal always a criminal", a law breaker can never be rehabilitated, can never pay his debt to society, is never to be respected. Wow! Talk about self righteous ******. (Not my censoring)

But they let the pedifiles out. 

[Euler]

11/17/2022 41 Filed Appellees Steven M. Dettelbach and Merrick B. Garland Citation of Additional Authority, per Circuit Rule 28(e). Argument set for: 11/08/2022. [41] [7274069] [22-1557] (Hazel, Steven) [Entered: 11/17/2022 04:49 PM]

[Molly B.]

?

[Euler]

On 12/17/2022 at 11:26 PM, Molly B. said:

?

 

I'm just posting updates to the docket. Appellate dockets are locked behind a paywall (although CourtListener is working on that), but there's no restriction on republishing them.

[Molly B.]

Ahh, okay. I was just wondering why it had November dates.  Thanks for the explanation. 

[Euler]

Appeal docket update: Looks like filing material after arguments.

 

01/09/2023 42 Filed Appellees Steven M. Dettelbach and Merrick B. Garland Citation of Additional Authority, per Circuit Rule 28(e). Argument set for: 11/08/2022. [42] [7283618] [22-1557] (Hazel, Steven) [Entered: 01/09/2023 04:17 PM]

[Euler]

Yet another filing after arguments ...

 

01/24/2023 43 Filed Appellees Steven M. Dettelbach and Merrick B. Garland Citation of Additional Authority, per Circuit Rule 28(e). Argument set for: 11/08/2022. [43] [7286925] [22-1557] (Hazel, Steven) [Entered: 01/24/2023 06:46 PM]

[cbunt32]

Looks like the case was remanded. Is it normal to take that long just to remand the case?

 

https://assets.nationbuilder.com/firearmspolicycoalition/pages/5472/attachments/original/1687275184/Atkinson_v_Garland_Opinion.pdf?1687275184

[MRE]

On 6/20/2023 at 12:43 PM, cbunt32 said:

Looks like the case was remanded. Is it normal to take that long just to remand the case?

 

https://assets.nationbuilder.com/firearmspolicycoalition/pages/5472/attachments/original/1687275184/Atkinson_v_Garland_Opinion.pdf?1687275184

It’s not totally out of the ordinary for a case to be remanded for essentially additional fact-finding.

 

It’s probably worth noting that it appears Judge Wood is going out of her way in her dissent to give clues as to how she would rule on other cases currently pending. And, predictably, if she were to write those opinions they would likely be slapped down hard by the current Surpreme Court. But that won’t stop her from issuing such an opinion.  

[Molly B.]

Quote

Judge Scudder writes:
No longer, the Su-
preme Court made clear, can lower courts balance interests—
of an individual’s right to possess a firearm and the state’s
commitment to promoting personal or public safety—to re-
solve the constitutionality of the challenged restriction. The
new approach anchors itself exclusively in the Second
Amendment’s text and the pertinent history of firearms regu-
lation, with the government bearing the burden of “affirma-
tively prov[ing] that its firearms regulation is part of the his-
torical tradition that delimits the outer bounds of the right to
keep and bear arms.” Id. at 2127.

 

[Molly B.]

Case is remanded back to United States District Court for theNorthern District of Illinois, Eastern Division. No. 1:21-cv-291 — John Robert Blakey, Judge.