{"id":87683,"date":"2022-11-14T17:46:17","date_gmt":"2022-11-14T23:46:17","guid":{"rendered":"https:\/\/milesfortis.com\/?p=87683"},"modified":"2022-11-14T17:46:17","modified_gmt":"2022-11-14T23:46:17","slug":"87683","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=87683","title":{"rendered":""},"content":{"rendered":"

SCOTUS turns away bump stock, gun seizure cases<\/a><\/p>\n

For the third time this year the Supreme Court has rejected a case dealing with the ATF\u2019s administratively imposed ban on bump stocks, denying cert in a challenge to the ban brought by a group of federally licensed firearm retailers and several individuals who argued that the ban was an unconstitutional violation of the Fifth Amendment\u2019s Takings Clause by forcing existing bump stock owners to destroy them without any kind of compensation on the part of the federal government.<\/p>\n

Today\u2019s decision follows the denial of two other challenges to the bump stock ban, which was imposed by the Trump administration following the Route 91 Harvest music festival shooting in Las Vegas in 2017. Previously, the ATF had determined that bump stocks should not be considered \u201cmachine guns\u201d under federal law, given that even with bump stocks attached it took a pull of the trigger to release a single round.<\/p>\n

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a U.S. Justice Department agency, reversed a previous conclusion and classified bump stocks as machine guns under a 1934 U.S. law called the National Firearms Act. The policy took effect in 2019.<\/p>\n

Two sets of plaintiffs filed lawsuits seeking compensation for having to destroy or surrender their bump stocks in the Court of Federal Claims, which hears monetary claims against the U.S. government. A judge dismissed the actions, finding the policy to be a lawful exercise of the federal government\u2019s power to outlaw dangers to public health and safety.<\/p>\n

“The Washington-based U.S. Court of Appeals for the Federal Circuit upheld those decisions last year for a different reason, ruling that a property right in the devices was inherently limited given the existing federal prohibition on machine guns.<\/p><\/blockquote>\n

We don\u2019t know why\u00a0<\/em>SCOTUS rejected these challenges, just that there weren\u2019t four justices willing to accept any of these cases. And while the odds of any particular case being granted cert by the Court are low (about 1-in-10,000), gun owners are rightfully going to be concerned about the Court\u2019s inaction, especially with the Biden administration using the Trump tactic to pursue administrative bans against unfinished frames and receivers, pistol stabilizing braces, and potentially even\u00a0semi-automatic handguns<\/a>\u00a0and rifles.<\/p>\n

Today\u2019s decision doesn\u2019t mean that these same justices will stand by and let future abuses of executive authority slide, but as long as SCOTUS doesn\u2019t object the Biden administration is likely to take their silence as a green light for more rule-making of dubious constitutionality.<\/p>\n

The other case turned away by the Supreme Court today dealt with the seizure of a New York man\u2019s firearms; a case that the attorneys for Wayne Torcivia argued was\u00a0virtually identical<\/a>\u00a0to a similar search and seizure that the Court ruled unconstitutional in\u00a0Caniglia v. Strom<\/a>.\u00a0<\/em><\/p>\n

<\/p>\n

\u2026 the Second Circuit allowed a warrantless search of Petitioner\u2019s home and seizure of his lawfully owned firearms by invoking a supposed \u201cspecial-needs exception\u201d to the Fourth Amendment\u2019s warrant requirement. And the Second Circuit justified the entry into Petitioner\u2019s home even though Petitioner was accused of no crime, Pet. App. 25a, the search and seizure occurred well after Petitioner had been removed from his home and from any possible access to those firearms, and even though the Second Circuit assumed\u2014on the summary judgment record\u2014that the firearms were seized \u201cafter the responsible physicians had decided that he was not a danger to himself\u201d or others.<\/p>\n

In fact, the special-needs exception previously recognized by this Court has been limited to circumstances where the government already has some preexisting level of heightened penal authority over the homeowner, such as with probationers or parolees. E.g., Griffin v. Wisconsin, 483 U.S. 868, 873- 874 (1987) (probationer); Samson v. California, 547 U.S. 843 (2006) (parolee). Expanding that limited exception to include the broader ground covered by the rejected \u201ccommunity caretaking\u201d exception both blatantly disrespects this Court\u2019s decision in Caniglia and deepens a pre-Caniglia split\u2014between the Fourth, Fifth, and Tenth Circuits and the New Jersey Supreme Court on the one hand and the First, Second, and Ninth Circuits on the other\u2014about when the special-needs exception applies.<\/p>\n

Indeed, this case is a strong candidate for summary reversal given its utter disdain for this Court\u2019s recent Caniglia decision rejecting a warrantless search on nearly identical facts. In the process, the Second Circuit has not only exacerbated a pre-existing split, but it has also created \u201ca new permission slip\u201d for warrantless home entry that is foreclosed by this Court\u2019s precedents.<\/p><\/blockquote>\n

Given the split among the circuits as well as the Supreme Court\u2019s own decision in\u00a0Caniglia<\/em>, I\u2019m surprised that SCOTUS didn\u2019t at least grant cert, vacate the Second Circuit\u2019s decision, and remand the case back to lower courts in light of the precedent set in\u00a0Caniglia<\/em>. Instead, the Court without comment denied cert, despite arguments from plaintiffs\u2019 attorneys that the Second Circuit was doing an end run around SCOTUS.<\/p>\n

In this case, rather than simply apply this Court\u2019s holding in Caniglia, the Second Circuit rebranded the community-caretaking exception by turning to another exception\u2014dubbed the \u201cspecial-needs\u201d exception\u2014and grossly expanded it to cover the very ground of warrantless searches fenced off by Caniglia. The special-needs exception had previously developed in relation to persons\u2014such as parolees and probationers\u2014already under the ongoing supervisory authority of the government in lieu of incarceration. Griffin v. Wisconsin, 483 U.S. 868, 873-874 (1987). But this Court has never endorsed it as an exception to the Fourth Amendment for the homes of persons not already subject to penal custody or supervision.<\/p><\/blockquote>\n

“Wayne Torcivia wasn\u2019t a parolee or under police supervision when authorities were called to his home on the morning of April 6, 2014 by Torcivia\u2019s teenage daughter, who complained to police that her dad was \u201cyelling at her and acting weird.\u201d When police responded, they found no evidence of any crime or wrongdoing on Torcivia\u2019s account\u2026 at least not at first.<\/p>\n

At one point in the discussion between Petitioner and one of the officers, the officer \u201cturned slightly\u201d and accidently dislodged magnetic drapes attached to the front door\u2026 As Petitioner went to pick them up\u2026 the officer \u201cscreamed\u201d very loudly to Petitioner to get back and threatened to tase Petitioner if he did not.<\/p>\n

\u2026Petitioner maintains that he told the officer not to tase him, because he has \u201ca heart condition\u201d and \u201ccould die.\u201d The officers understood Petitioner\u2019s request not to be tased as the precise opposite, that is, as a supposed desire to die from tasing. In response, they handcuffed Petitioner and transported him to Stony Brook Hospital\u2019s Comprehensive Psychiatric Evaluation Program (CPEP) for an emergency mental health evaluation. Before leaving the home, two of the officers informed Mrs. Torcivia that they had responded to the daughter\u2019s complaint, that Petitioner was acting \u201cirrational,\u201d and that they planned to transport him for a mental-health evaluation.<\/p>\n

Without asking whether the Torcivia family had firearms in the home, each officer then left. Only after dropping Petitioner off at CPEP did Officer James Adler learn, via a computer check, that Petitioner held a New York State pistol license.That check was based on a Department policy requiring the seizure of all guns from a home when police respond to a domestic \u201cincident\u201d and a resident is transported to a comprehensive psychiatric emergency program.<\/p>\n

Accordingly, the officer contacted his sergeant, who instructed him to ask Mrs. Torcivia for the guns and, if unsuccessful, return to CPEP to seek consent to the seizure from Petitioner; each attempt failed. The police did not seek a warrant for Petitioner\u2019s firearms and no officer was posted at the home to secure the scene pending seizure of the firearms.<\/p><\/blockquote>\n

Here\u2019s where it gets truly bizarre. Despite the fact that the mental health evaluation found that Torcivia posed no threat to himself or others, the hospital refused to release him until and unless he provided the combination to his gun safe and allowed police to confiscate his firearms.<\/p>\n

Though Petitioner at first refused (again) to give the combination, he eventually caved to the pressure resulting from his continued confinement and provided the combination to his wife, who produced Petitioner\u2019s handguns and long guns for the Department when they arrived without a warrant.<\/p>\n

Hours after his evaluation cleared him of posing any risk, and only after confirming that the Department had seized his firearms, Petitioner was allowed to exit the locked CPEP Unit.<\/p><\/blockquote>\n

This was back in 2014, and Torcivia was never able to recover his handguns, despite the fact that he never had his pistol license revoked. It took him two years to recover the long guns that were confiscated from his home without a warrant, and even then he had to jump through all kinds of bureaucratic hoops to get them back.<\/p>\n

If the Court isn\u2019t going to smack down this type of warrantless seizure of firearms, New York Gov. Kathy Hochul and her anti-gun allies will be more than happy to exploit the court\u2019s silence and encourage more departments to engage in similar behavior\u2026 and sadly some of them will eagerly agree. This may be the first case in New York dealing with the warrantless seizure of a legally-owned firearms collection, but given the Court\u2019s inaction I\u2019m pretty sure it\u2019s not going to be the last.<\/p>\n","protected":false},"excerpt":{"rendered":"

SCOTUS turns away bump stock, gun seizure cases For the third time this year the Supreme Court has rejected a case dealing with the ATF\u2019s administratively imposed ban on bump stocks, denying cert in a challenge to the ban brought by a group of federally licensed firearm retailers and several individuals who argued that the … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,96,8],"tags":[],"class_list":["post-87683","post","type-post","status-publish","format-standard","hentry","category-courts","category-cowardice","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/87683","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=87683"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/87683\/revisions"}],"predecessor-version":[{"id":87684,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/87683\/revisions\/87684"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=87683"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=87683"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=87683"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}