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An order by Chief Judge Marilyn Hall Patel has defense attorneys grumbling about the foreclosure of legal arguments in a common case in the Northern District of California — ex-cons allegedly caught with a gun. Earlier this month, Patel dismissed the latest rage in defending felon-in-possession cases: arguing that the Justice Department’s recent policy switch on the Second Amendment gives defendants new ground to challenge the charges against them. What really rankled defense lawyers is not so much that Patel dismissed the argument being made in courts across the country, but that she told lawyers not to waste their breath — or taxpayer money. “The court will not reimburse attorneys out of CJA [Criminal Justice Act] funds for such useless time,” Patel wrote. That left many wondering why a judge with a reputation for entertaining novel legal theories is suddenly telling lawyers how to argue their cases. “[The argument] hasn’t been treated that way in other districts,” said Martin Sabelli, a defense attorney with San Francisco’s Hallinan, Wine & Sabelli who takes CJA cases. Patel’s order means private lawyers appointed by the court under the CJA won’t be paid for time spent on the argument. But she issued the order in a case handled by the federal public defender’s office, whose lawyers aren’t paid with CJA funds, leaving some to wonder if the order applies to every case before Patel, or even every case in the Northern District. An aide to Patel, who is out of town, said the judge would not talk about a specific case. The CJA supervising attorney had no comment. In her July 2 ruling in U.S. v. Stepney, 01-0344, Patel called the argument “wholly academic,” “meritless” and “self-serving,” and questioned the professional judgment of the federal public defenders who made it. The debate about the implications of the government’s policy switch — holding that the Second Amendment is an individual, rather than a collective, right — is growing, and several other Northern District judges have taken the issue under consideration. None have bought it, however. “To be honest, a win at the district court would have been difficult,” said Assistant Federal Public Defender Steven Kalar, who worked on Stepney. The 9th U.S. Circuit Court of Appeals may have to overturn its own precedent with an en banc court, Kalar added. But he said other judges have at least considered the issue. U.S. District Judge William Alsup, also of the Northern District of California, issued a written order recently after what Kalar called a “heated oral argument.” “Judge Alsup took a new constitutional argument seriously,” Kalar said. The filings have become so pervasive that Northern District Judge Susan Illston asked Solicitor General Theodore Olson last week, only half-jokingly, whether the government understood what havoc it might wreak when it was considering the change. And The New York Times weighed in Monday with an article on the effect of the switch in courts nationwide. Olson, whose office kicked off the controversy by announcing the policy switch in a U.S. Supreme Court brief, said the government will defend all the laws that are on the books. The U.S. Attorney’s Office for Northern California, in court papers, argued that the change does not affect felons. “The government does not concede that the Second Amendment creates a fundamental individual right for felons to bear arms,” Assistant U.S. Attorney Andrew Scoble wrote in court papers. UCLA law Professor Eugene Volokh, a Second Amendment expert, said the individual right argument is not new to state courts. Many states have their own right-to-bear-arms laws, and many felons have challenged them, including in states where the individual right is more clearly spelled out. In every case that he knows of, Volokh said, the argument has been rejected. “Even if it is [an individual right], it is not an unlimited right,” Volokh said. “Much like the First Amendment.” Whatever the merits, lawyers are unsure of what to make of Patel’s order. Though she’s considered a defense-friendly judge, she was also a supporter of former U.S. Attorney Robert Mueller’s Triggerlock II program, which charged felons caught with weapons in federal court. Sabelli said Patel might be motivated by past controversies over the high cost of Northern District defense spending. “The bottom line, from my point of view, is that she’s under a lot of pressure given the history of this district,” he said. But her order wouldn’t stop him from making the argument. “Absolutely I would bring that argument if I were before Judge Patel and I felt it needed to be made — knowing that it might not be paid for but feeling that it should,” Sabelli said. “I’ve got no doubt she’ll allow zealous advocates to make arguments that are on the cutting edge.”

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