This is a Second & 14th Amendment carry case out of Massachusetts. A cert petition was filed with the US Supreme Court on September 9, 2015.
The cert petition is very well written. Importantly, it clearly identifies the existing circuit splits on whether or not the Second Amendment extends beyond the home. As you may recall, the dissent in Jackson v. San Francisco by Justice Thomas (Justice Scalia concurring) chided the court in that case for not granting that cert petition for lack of a circuit split. Another nice thing about the cert petition in this case is the outcome does not turn on whether or not there is a right to carry a handgun concealed in public. The question is whether or not there is a right to carry in public pursuant to the Second Amendment (the 1st Circuit Court of Appeals and the Massachusetts high court said there is not). On November 5, 2015 SCOTUS requested a response. This moves the cert petition from DOA to a better than average chance that the cert petition will be granted. There are two types of cases which are normally placed on the “dead list” and denied outright. IFP cases (those filed by persons who are so poor they cannot afford to pay the filing fee) and cases where a waiver of response is filed and SCOTUS does not request a response. This is an IFP case and a waiver of response had been filed. Now that SCOTUS has requested a response this case is off the “dead list.”
Here is a link to the SCOTUS docket.
Here the Powell Cert Petition.
Response requested – Response is due February 8, 2016. Powell v. Tompkins Brief in Opposition to Cert filed 2-8-16
Powell’s Reply Brief to the Brief in Opposition was Filed February 19, 2016.
Here is a link to the Massachusetts Supreme Judicial Court (MSJC) case page.
Here is a link to the MSJC decision.
Here is a link to the Federal First Circuit Court of Appeals decision.
|Docketed:||September 15, 2015|
|Lower Ct:||United States Court of Appeals for the First Circuit|
|Decision Date:||April 15, 2015|
|Rehearing Denied:||June 11, 2015|
|~~~Date~~~||~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~|
|Sep 9 2015||Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due October 15, 2015)|
|Oct 5 2015||Waiver of right of respondent Steven Tompkins, Sheriff, Suffolk County, Massachusetts to respond filed.|
|Oct 29 2015||DISTRIBUTED for Conference of November 13, 2015.|
|Nov 5 2015||Response Requested . (Due December 7, 2015)|
|Nov 23 2015||Order extending time to file response to petition to and including February 8, 2016.|
|Feb 8 2016||Brief of respondent Steven Tompkins, Sheriff, Suffolk County, Massachusetts in opposition filed.|
|Feb 19 2016||Reply of petitioner Aaron Powell filed.|
|Feb 25 2016||DISTRIBUTED for Conference of March 18, 2016.|
Update by Charles Nichols, President of California Right To Carry – March 21, 2016 – SCOTUS denied the cert petition without explanation. The state of Massachusetts wrote a long Brief in Opposition trying to make this case not about the Second Amendment. Hopefully, that is the reason why the cert petition was denied. Unfortunately, we will never know for certain.
Update by Charles Nichols, President of California Right To Carry – March 18, 2016 – SCOTUS did not grant the case this afternoon which means we have to wait until Monday to find out what, if anything, happened with the cert petition today.
Update by Charles Nichols, President of California Right To Carry – February 28, 2016 – The Reply Brief to the Brief in Opposition (BIO) was filed on February 19th and is available here. It is an excellent read. The state of Massachusetts wrote a long Brief in Opposition trying to make this case not about the Second Amendment. Instead of taking the bait and arguing extensively against those points not related to the Second Amendment, Powell’s lawyer succinctly shot to pieces the states BIO. A pity the lawyers for the so called gun-rights groups are incompetent. The petition stage of the cert petition is now fully briefed. The case has been distributed for the conference of March 18, 2016.
Update by Charles Nichols, President of California Right To Carry – February 9, 2016 – The Brief in Opposition was filed and is available here.
EDIT: I have just read the Brief in Opposition. The state went to great lengths to argue that this really isn’t a Second Amendment case but one which should be evaluated under the Anti-terrorism and Effective Death Penalty Act (AEDPA) which is an act of congress which basically says that it doesn’t matter if a law is unconstitutional, if you have been convicted then the burden is upon you (not the state) to prove that the law for which you have been convicted is BOTH unconstitutional AND that the courts have already held that the law is unconstitutional prior to your conviction. You might recognize that as a Catch-22.
Update by Charles Nichols, President of California Right To Carry – January 4, 2016 – Nothing new.
Update by Charles Nichols, President of California Right To Carry – November 23, 2015 – The deadline to file the Brief In Opposition was extended to February 8, 2016. This means that if the cert petition is granted then the case will not be heard until the 2016-2017 term and likely a decision not published until June of 2017.
Update by Charles Nichols, President of California Right To Carry – November 16, 2015 – This case wasn’t listed on the Orders list for today which means it has been relisted or it is being held for some reason. Unfortunately, the online dockets are not updated in real time. We might know later today or later this week what the current status is. All we know now as of 6:54 AM today is the cert petition has not been denied. Update: given that SCOTUS requested a response and the response isn’t due until December 7, 2015, it is pretty much certain that the petition will be rescheduled for a future conference. When it is rescheduled that will mark its first relist which is a significant event given that for the past few years SCOTUS has been increasingly reluctant to grant a petition unless it has been relisted at least once.
Update by Charles Nichols, President of California Right To Carry – November 6, 2015 – On November 5, 2015 SCOTUS requested a response. This moves the cert petition from DOA to a better than average chance that the cert petition will be granted. The response is due December 7, 2015.
Update by Charles Nichols, President of California Right To Carry – October 29, 2015 – The petition has been distributed for the private conference of November 13, 3015. Unfortunately SCOTUS did not request a response which means that, for all intents and purposes, the petition has been denied. We are just waiting for SCOTUS to formally pronounce the case dead.
Update by Charles Nichols, President of California Right To Carry – October 22, 2015 – The State of Massachusetts has filed a waiver in lieu of a response to the cert petition. This is what happens in most cases. No response is required unless SCOTUS requests a response. If no response is requested by SCOTUS before the cert petition is scheduled for its first private conference then cert will be denied. The waiver was filed on October 5, 2015 but the docket was not updated. The online docket usually lags up to a few days or so but this is the first time I have noticed this great of a delay from filing date to the docket being updated.