Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue against the interpretation that a state drug conviction qualifies as a “serious drug offense” under the Armed Career Criminal Act when it relies on old, superseded, federal drug schedules that existed at the time of the prior state drug offense and not the current schedules that exist when the federal penalty is incurred.
This incorrect interpretation violates the three pillars of fair notice: (1) it abandons a commonsense, accessible reading of legal text in favor of a vague and confusing construction; (2) it creates avoidable problems with the Ex Post Facto Clause; and (3) it fails to apply the rule of lenity to ambiguity in a criminal statute. Furthermore, it poses enormous practical challenges for people with prior state drug convictions to understand what punishment awaits them if they commit a federal gun crime and enhances sentences for gun crimes because of state convictions for conduct no longer illegal under federal law.
We thank Douglas Litvack, Eric Fleddermann, and Vincent Wu of Jenner & Block LLP for their pro bono work on this case.
Wikimedia v. National Security Agency, et al.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argue access to the courts through civil litigation is a vital safeguard for the vindication of constitutional rights implicated by foreign intelligence surveillance. Congress originally enacted FISA to provide judicial review of these surveillance efforts. However, experience shows the other avenues—FISC proceedings and suppression efforts in criminal prosecutions—do not function as reliable checks on the government. Without the avenue of civil litigation, there will be few, if any, effective means of checking unconstitutional abuses by foreign intelligence surveillance authorities.
Filed with Due Process Institute, Brennan Center for Justice, Electronic Frontier Foundation (EFF), Electronic Privacy Information Center, FreedomWorks Foundation, Project for Privacy and Surveillance Accountability, and TechFreedom.
We thank David M. Gossett, Chris Swift, and Meenakshi Krishnan of Davis Wright Tremaine LLP for their pro bono work on this case.
Brief in Support of Plaintiffs
5th Circuit Court of Appeals
In this amicus brief, we argue predetermined, scheduled bail schemes infringe on the due process rights of pretrial detainees. These schemes do not account for the government’s interests in pretrial detention or an individual’s ability to pay, in violation of the Fifth, Eighth, and Fourteenth Amendment. Judges are also unable to take a defendant’s individual circumstances into account when setting bail if it is predetermined or scheduled. Furthermore, longstanding jurisprudence underscores the general right to pretrial liberty and is incompatible with the bail practices currently in use by Dallas County.
The Fifth Circuit concluded that the plaintiffs and their suit were allowed to proceed against most of the judges and Dallas County. You can read the decision here.
Filed with Americans For Prosperity Foundation, Cato Institute, Clause 40 Foundation, and Professor Shon Hopwood.
Brief in Support of Certiorari
U.S. Supreme Court
In this amicus brief, we argued a defendant should be able to mount a reasonable doubt defense based on the police’s failure to investigate another suspect. Due process permits the defense to present evidence of a police investigation's unreliability and to cast reasonable doubt on the prosecution's case. The court's decision to exclude this type of defense severely weakens the existing burden of proof in criminal trials and increases the likelihood of wrongful convictions.
Petition for certiorari denied June 6, 2022.
We thank Doug Litvack, Eric Fleddermann, and Raymond Simmons for their pro bono work on this case.
Brief in Support of Appellants
9th Circuit Court of Appeals
In this amicus brief, we argue state licensing schemes that categorically bar individuals with prior criminal convictions from holding various professions are irrational. These restrictions—which bar individuals with prior convictions from finding gainful employment—are often unrelated to the jobs at hand; a person convicted of littering would be required to wait ten years before being able to obtain an EMT certification in California. In the name of rational basis review, courts should not uphold these policies that contribute to recidivism and hamper reentry efforts.
Filed with the DKT Liberty Project, Cato Institute, Collateral Consequences Resource Center, Law Enforcement Action Partnership, the Macarthur Justice Center, the R Street Institute, the Sentencing Project, and the National Association Of Criminal Defense Lawyers.
The 9th Circuit concluded that California’s felony bans should be sustained under rational basis review and rejected the challenge to the felony bans. Read the decision here.
Clause 40 Foundation also thanks Jessica Amunson and Caroline Cease of Jenner & Block for their pro bono work on this case.
Brief in Support of Certiorari
U.S. Supreme Court
A study by The Heritage Foundation reported that the U.S. Code (listing all statutes enacted by Congress) contained more than 4,450 criminal offenses and many of these federal offenses are either strict liability or contain poorly drafted mens rea requirements. In this amicus brief, we argue regulatory statutes with no scienter requirement and criminal penalties ensnare innocent actors; citizens engaging in otherwise lawful behavior are turned into felons based on their unknowing proximity to a regulatory violation. These laws threaten fundamental due process and other basic constitutional rights while also contributing to overcriminalization.
Petition for certiorari denied October 4, 2021.
Filed with The Buckeye Institute, The Competitive Enterprise, Reason Foundation, Faith & Freedom Coalition, and The Rutherford Institute.
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