President(-Elect) Donald J. Trump
Your support of our Second Amendment Rights and endorsement by the National Rifle Association (NRA) was a key factor in your electoral victory. As a civil rights lawyer defending our Second Amendment Rights, I was dismayed that Judges Steven Colloton and Raymond Gruender from the anti-gun rights Eighth Circuit U.S. Court of Appeals were among those you were considering for appointment to the U.S. Supreme Court.
After the unfortunate death of Justice Antonin Scalia, I wrote to advise President Obama to avoid appointing to the high court his former law school classmate Jane Kelly, whom he had already appointed as a Judge to the Eighth Circuit.
Eighth Circuit creates Lesser Americans
My objection to her was based entirely upon a civil rights case I argued before Judges Colloton and Kelly and later ratified by Judge Gruender. The case is Rodgers & Franklin v. Knight, 781 F.3d 932 (8th Cir. 2015) certiorari denied. Judge Colloton wrote the opinion in the most anti-gun ruling decided by the federal courts in the last forty years. The confirmation of a Justice Colloton and/or Gruender as a Supreme Court justice would undermine the bedrock constitutional protections enshrined within our Second Amendment.
Justice Scalia on statutory construction was a textualist, meaning he judged words by their plain meaning. In the Rodgers opinion, Judge Colloton departed from textualism when he wrote that the legislature was not competent to clearly establish law by the plain meaning of a statute and that a law is not clearly established until its plain meaning received the additional blessing of a court’s interpretation.
You’re no doubt aware that courts rarely rule on the plain meaning of easily understood statutes. With that in mind, Judge Colloton’s ruling in effect declares that citizens of the Eighth Circuit are not entitled to rely upon statutory declarations of their rights until that statute has been interpreted by a court, and that police and prosecutors are immune from accountability under the Civil Rights Act when they arrest and prosecute citizens who are obeying the law.
This ruling is all the more insidious when one considers that a Missouri court had in State v. McLemore, 782 S.W.2d 127 construed the statute in question. But Judges Steven Colloton — and Judge Gruender by his affirmation of the panel decision — failed to acknowledge this precedent and thereby vastly expanded law enforcement’s immunity for violating the statutory and civil rights of citizens in the Eighth Circuit.
In Rodgers, plaintiff Greg Rodgers had been arrested on his premises for unlawfully concealing a firearm. Missouri law specifically permits a citizen to conceal a firearm lawfully while on his premises. Mr. Rodgers also had a concealed carry permit. He not only told the police that when they arrested him but he also had previously shown it to them. A police detective admitted that Mr. Rodgers’ decision to file an earlier complaint of police misconduct was the “catalyst” for their actions against the Rodgers family.
Justice Scalia was a champion for an expansive application of the Fourth Amendment, which protects us and our homes from unreasonable searches and seizures. The Fourth Amendment abhors general warrants and requires that warrants specifically describe the place to be searched and the people or things to be seized. In Rodgers, the Eighth Circuit found that a warrant listing “evidence of drug trafficking” covered all the firearms in Army veteran Robert Franklin’s home, even though he lawfully possessed these firearms, he was not arrested, and police had NO reason to believe these guns had been used in connection with drug trafficking. This court found that general association by police of drugs with firearms made this seizure lawful in the Eighth Circuit.
The 14th Amendment holds, in part: “… nor shall any state deprive any person of life, liberty, or property, without due process of law.” When one of Mr. Franklin’s firearms was given by law enforcement to a convicted felon, without the hearing required by state law or a judicial order permitting this deprivation of his property, Judge Colloton’s ruling held that “[a] violation of state law, without more, is not the equivalent of a violation of the Fourteenth Amendment.” Further, the Eighth Circuit found that an objectively reasonable law enforcement officer could arrest and prosecute Mr. Robert Franklin’s son, convicted felon and North Carolina resident Raymond Franklin, for unlawfully possessing his father’s firearm in Missouri simply because a piece of mail with his name on it was across the room from Robert Franklin’s pistol. The legal reasoning necessary to find that an inanimate piece of mail could cause a felon a thousand miles away to have the “dominion or control” over a firearm necessary for prosecution is astonishing and troubling.
CONGRESS ABUSES FEDERAL JUDICIARY
The abuse heaped upon the federal judiciary by Congress has had many detrimental effects. Congress’s 1988 reform granting the Supreme Court nearly absolute discretion to decide which cases it will resolve has resulted in a Balkanization of the federal courts. I have consistently argued that within two federal circuit courts of appeal the on-point precedents of the U.S. Supreme Court are substantially ignored. President Reagan appointed Judge Richard Posner to the Seventh Circuit of the U. S. Court of Appeals, who said to the Daily Beast that the Supreme Court is not a real court but a quasi-political body. “It’s very political,” Posner said. “And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.”
Mr. President Trump, there are in my opinion 10 states where the Constitutional protections afforded to our brethren elsewhere are routinely denied, making the people who live in those states “Lesser Americans” in the eyes of the law. Your appointment to the Supreme Court cannot resolve that issue, but neither should your choice of a Supreme Court Justice be a judge who appears to have embraced these doctrines of separate and unequal Americans.
We need a judge who is dedicated to the best precedents of the United States Supreme Court and who will view all Americans as equal under the law. Judges Colloton and Gruender fail this fundamental test and should not be nominated to the Supreme Court.
/s/ Stephen Wyse
Civil Rights Attorney