[00:00:04] Speaker 00: not to take it. [00:00:08] Speaker 00: I mean, I don't know if you play a little bit. [00:00:10] Speaker 00: I think it's going to be a good thing. [00:00:13] Speaker 01: Good morning, counsel. [00:00:14] Speaker 01: Mr Cohn, please proceed when you're ready. [00:00:17] Speaker 02: Thank you, Judge. [00:00:19] Speaker 02: Good morning. [00:00:20] Speaker 02: The may please the court. [00:00:21] Speaker 02: The issue in this case is whether there was sufficient allegations of probable cause to support [00:00:32] Speaker 02: the issuance of a search warrant for the search of the home of Mr. Payne. [00:00:40] Speaker 02: The search warrant was, and the parties agree on this, defective in that it failed to cite the correct statute. [00:00:48] Speaker 02: I mention that because the [00:00:53] Speaker 02: Superior court judge who eventually signed the search warrant repeated that error in his authorization of the search, strongly suggesting that he had not taken the trouble to read the statute for which a search was being sought. [00:01:17] Speaker 02: Beyond that, the reaction of the Superior Court judge upon reading that Mr. Payne had heard gunshots outside his home, had had his cousin run into the home wounded, and had gone outside his home with a firearm to see whether the threat was still going on, [00:01:44] Speaker 02: The reaction of the Superior Court Judge to the police officer who submitted this affidavit should have been, you've done a textbook job of identifying a poor Second Amendment protected conduct. [00:02:01] Speaker 02: Conduct is happening in the home, and he's acting in self-defense. [00:02:06] Speaker 02: Why do you want me to authorize you to search [00:02:09] Speaker 02: every part of this person's home for, as you put it, firearms, ammunition, and so forth. [00:02:15] Speaker 02: That doesn't seem. [00:02:16] Speaker 02: Let me ask you this. [00:02:21] Speaker 04: If this had been raised at trial as a defense, the government would have had to disprove self-defense beyond the reasonable doubt, right? [00:02:30] Speaker 04: Because self-defense could have been an available defense to the unlawful possession allegation, right? [00:02:38] Speaker 04: No self-defense instruction was requested at trial where the burden was to prove beyond the reasonable doubt. [00:02:48] Speaker 04: The burden to get a search warrant is probable cause, which is multiple magnitudes less. [00:03:00] Speaker 04: So how is it that in the case where [00:03:06] Speaker 04: Defense counsel didn't even request a self-defense instruction at trial. [00:03:12] Speaker 04: It was error for the judge to sign a search warrant and find no probable cause. [00:03:21] Speaker 02: The trial, Judge, now we've got lots of evidence coming in. [00:03:25] Speaker 02: In addition, to be very concrete, evidence that's not in the affidavit submitted, I'm not sure I'm pointing in the right direction, to the Superior Court Judge. [00:03:35] Speaker 02: So we're talking about two very different inquiries. [00:03:41] Speaker 02: One is looking at the affidavit. [00:03:43] Speaker 02: Has this affidavit laid out anything other than protected conduct under the Second Amendment? [00:03:50] Speaker 02: Whereas at trial, the defendant's counsel has to make a strategic call. [00:03:57] Speaker 02: OK, given all the evidence against my client, [00:04:00] Speaker 02: including evidence that's not included in the affidavit, for example, what happened, say, before the shooting. [00:04:07] Speaker 02: Is this really going to be a viable claim? [00:04:11] Speaker 02: So those are two very, very different inquiries at two very different stages. [00:04:17] Speaker 02: One is happening in the Superior Court across the street, and the other is happening at trial in this courtroom. [00:04:24] Speaker 04: Is it your position that [00:04:28] Speaker 04: There was not probable cause for the offense listed in the affidavit, which was DC Code 22-4503. [00:04:38] Speaker 04: That's correct, Judge. [00:04:39] Speaker 04: Yes, and I think the government is conceding that. [00:04:43] Speaker 04: And that is because? [00:04:45] Speaker 02: Because that offense is the offense of being a felon or a prohibited person in possession of a firearm. [00:04:53] Speaker 02: And there's nothing in the affidavit that suggests that Mr. Payne was a prohibited person, and in fact, a trial, and now still today, he was not a prohibited person. [00:05:07] Speaker 04: So [00:05:12] Speaker 04: I mean, there's lots of case law about typos and technical defects in warrants. [00:05:23] Speaker 04: The warrant itself says that the offense at issue was carrying a pistol without a license. [00:05:35] Speaker 04: And the D.C. [00:05:37] Speaker 04: code provision was one digit off. [00:05:41] Speaker 04: Why shouldn't we essentially presume that the judge signing the warrant obviously believed that the offense at issue was carrying a pistol without a license, not being a prohibited person in possession? [00:06:06] Speaker 02: One answer to that question is the very first words as I start to speak in his authorization, the Superior Court judge repeated the incorrect 4503 statute. [00:06:18] Speaker 02: So it becomes in the significance of that judge. [00:06:24] Speaker 02: I mean, candidly, I've made typographical errors. [00:06:28] Speaker 02: I understand the case law that you just referenced. [00:06:31] Speaker 02: But here we're looking at whether a Superior Court judge actually examined the way the Constitution wants [00:06:39] Speaker 02: it requires a judge to do. [00:06:41] Speaker 04: But the authorization repeated essentially the same typo. [00:06:45] Speaker 04: That's right. [00:06:46] Speaker 04: But in parentheses said carrying a pistol without license. [00:06:50] Speaker 02: So let's move off the typo, although the typo has some significance. [00:06:55] Speaker 02: The question then becomes carrying a pistol. [00:06:58] Speaker 02: And there I would come back to the Second Amendment. [00:07:02] Speaker 02: The conduct that's laid out [00:07:07] Speaker 02: is poor, poor constitutionally protected conduct. [00:07:11] Speaker 02: And it's important to note it's not just today or tomorrow. [00:07:15] Speaker 02: In 2022, when these events were happening, this court had decided the Wren case. [00:07:23] Speaker 02: And the Wren case said that both in a home and outside a home, carrying a pistol for self-defense is poor. [00:07:34] Speaker 02: Second Amendment protected conduct. [00:07:37] Speaker 02: Not me. [00:07:37] Speaker 02: It's this court saying that. [00:07:39] Speaker 03: So when the police... By 2022 hadn't the DC court of appeals disagreed with Wren and said that this statute is constitutional? [00:07:47] Speaker 02: No, I'm talking about the constitutionality, Judge. [00:07:51] Speaker 02: And it's important to understand I'm not talking here about the constitutionality of a statute. [00:07:56] Speaker 02: I'm talking about the scope of the Second Amendment. [00:08:00] Speaker 02: And I want to repeat what I said at the very beginning. [00:08:02] Speaker 02: Someone reading that affidavit [00:08:05] Speaker 02: would have said, this is an outstanding job of describing for protected Second Amendment conduct. [00:08:13] Speaker 02: It's not a question, which by the judge, as you may know, is pending in the DC Court of Appeals across the street. [00:08:20] Speaker 02: It was argued late last year over the validity of the license requirement. [00:08:26] Speaker 02: That's actually under scrutiny right now. [00:08:29] Speaker 02: But whether DC can even require a license for us to have pistols in our home. [00:08:35] Speaker 02: But that's not the challenge here. [00:08:37] Speaker 02: The challenge here is to look at the affidavit and to say, this affidavit lays out a great example of protected Second Amendment conduct. [00:08:47] Speaker 02: I'm not issuing a search warrant for this. [00:08:51] Speaker 01: I don't understand the difference between unconstitutionality and constitutionally protected conduct. [00:08:56] Speaker 01: And wouldn't the question just be whether the statute is constitutional as applied to that conduct? [00:09:02] Speaker 02: I don't think it's an as applied case, Judge, because to in a way get back to Judge Wilkins's question. [00:09:08] Speaker 02: As applied challenges come up when you're challenging an indictment or a conviction or where you're trying to wipe out an entire crime. [00:09:18] Speaker 02: But that's not what my briefs are about and what this argument is about. [00:09:24] Speaker 02: The briefs here and the argument is when a reviewing judge under the Fourth Amendment is looking at the conduct described, the judge [00:09:35] Speaker 02: and the police who submitted it had to realize this is not a crime. [00:09:39] Speaker 02: This is protected conduct. [00:09:40] Speaker 02: And I don't think- It might be a crime. [00:09:45] Speaker 01: I mean, there is not mutually exclusive whether something is denominated as a crime by statute and whether it's constitutionally protected conduct. [00:09:51] Speaker 01: The way that comes into, the way that intersects in a way that allows somebody to determine whether that in fact is constitutionally protected conduct is whether the statute can constitutionally prohibit it. [00:10:04] Speaker 01: If it can, then it's not constitutionally protected conduct for those purposes, the statute can validate the predicted. [00:10:08] Speaker 01: And I guess all of this whole colloquy just illustrates that these questions can be quite nuanced and complicated. [00:10:15] Speaker 01: And we're talking about an approval of a warrant. [00:10:20] Speaker 01: At that stage, a judge who's looking at a warrant is supposed to do all this constitutional inquiry to try to figure out the conduct that's described in the affidavit. [00:10:33] Speaker 01: The statute, and let's just assume it's the right statute, as you rightly did. [00:10:37] Speaker 01: Let's assume that, and then we have a statute that covers it. [00:10:41] Speaker 01: And a judge that's thinking about a warrant is supposed to look at that and figure out at that stage, as opposed to later, somebody can raise a defense. [00:10:52] Speaker 01: But at that stage, in deciding whether to authorize, whether to issue a warrant, [00:10:58] Speaker 01: whether the statute can constitutionally be applied to the conduct that's described in the warrant affidavit. [00:11:05] Speaker 01: That seems like expecting quite a bit of a judge who's signing off on a warrant. [00:11:11] Speaker 02: No, Judge, not only do I not think it's expecting quite a bit, I think that's the reason the police should not have even submitted an affidavit. [00:11:20] Speaker 02: That's the significance of this court's decisions on the Constitution. [00:11:24] Speaker 02: They don't just affect [00:11:25] Speaker 02: judges and lawyers like me, they affect the entire country, all citizens. [00:11:30] Speaker 01: And that's why you can raise a constitutional defense if the charges go forward. [00:11:35] Speaker 01: And maybe there's a civil suit you can bring under 1983 or something. [00:11:43] Speaker 01: Do you have a decision where this has happened where a warrant [00:11:48] Speaker 01: was where somebody in the posture that you're in got the fruits of a search invalidated on the theory that the warrant should have never issued because the conduct was, as you put it, constitutionally protected. [00:12:05] Speaker 02: If there is such a case, it's probably in my brief, Judge, and I can't think of it offhand. [00:12:09] Speaker 02: But I think one helpful way of addressing your question is, in the case that I was referring to with Judge Garcia, one that involves the constitutionality of this licensing scheme, [00:12:25] Speaker 02: One of the things the parties are going back and forth against about, fully briefed at this point, is whether or not this licensing scheme imposes, and I don't want to use the word burden, and they have different words for burden on citizens, that infringes the Second Amendment. [00:12:45] Speaker 02: And if I am in my home, if a citizen is in his home, [00:12:52] Speaker 02: and has shots gone outside. [00:12:55] Speaker 02: A family member runs in wounded. [00:12:58] Speaker 02: He takes a gun, by the way, it may not even be his own gun, and goes outside and scans to see if the threat is still going on. [00:13:09] Speaker 02: It is a burden [00:13:12] Speaker 02: on that person to then, oh, you did that? [00:13:14] Speaker 02: Well, guess what? [00:13:14] Speaker 02: We're going to do a search warrant of your entire home based on what you did. [00:13:19] Speaker 02: The fact that all these courts, including this court, have said that is core Second Amendment protected conduct, sorry, we're going to repeat that and say we are now searching your home because you told us not to. [00:13:32] Speaker 04: The question that this is core Second Amendment protected conduct I think is a little more complicated than what making it out is. [00:13:42] Speaker 04: I mean, you have a right to self-defense to the threat of imminent bodily harm. [00:13:53] Speaker 04: There's a shot, and even in the affidavit, the detective says that when he spoke with Payne, Payne said he didn't witness the shooting. [00:14:04] Speaker 04: His cousin ran in. [00:14:05] Speaker 04: The car was gone down the street. [00:14:13] Speaker 04: The imminent threat, I mean, you put yourself in danger going outside. [00:14:19] Speaker 04: Everyone who, it would be different if there were evidence in the warrant that there was someone still outside or that there were shooting or that the shooter might still be in the vicinity. [00:14:35] Speaker 04: But what's in the warrant is that the car is fed by, shot at his cousin, his cousin runs in, the car is gone. [00:14:44] Speaker 04: So why isn't that probable cause, at least probable cause, that going out with a gun at that point without a license is a crime? [00:14:55] Speaker 04: Because maybe if there were still a threat, an imminent threat, [00:15:05] Speaker 04: It might be self-defense, but where is the evidence of imminent threat in this war? [00:15:12] Speaker 02: Judge, I'm glad you used the word threat, because the word threat is in the affidavit. [00:15:19] Speaker 02: And the police recounts that as soon as Mr. Payne realized there was no more threat, I don't have the exact words, he went back into the house. [00:15:29] Speaker 02: So he's responding to a perceived threat. [00:15:32] Speaker 02: And once he sees there's no threat, he goes back into the house. [00:15:37] Speaker 02: And so, yes, Judge, and then expanding a little on that. [00:15:41] Speaker 04: He said there is no longer a threat when he goes back in. [00:15:44] Speaker 04: That doesn't mean that there was a threat when he went out. [00:15:48] Speaker 02: Well, another answer to that is there's no finding on that whatsoever, Judge. [00:15:53] Speaker 02: And I mean, it would be really odd for this. [00:15:55] Speaker 04: I mean, you want us to litigate this warrant as if we're at a trial or a detention hearing or something. [00:16:11] Speaker 04: No, Judge. [00:16:12] Speaker 04: I mean, that's not the way we look at the warrants. [00:16:15] Speaker 04: Right. [00:16:17] Speaker 04: neutral, detached magistrate kind of using their common sense and say there's probably a cause that a crime was committed here. [00:16:27] Speaker 04: And what's the significance, too, of when Payne's interviewed, he says, oh, that's not a gun. [00:16:32] Speaker 04: I don't have a gun. [00:16:34] Speaker 04: That's consciousness of guilt, right? [00:16:37] Speaker 02: That's he immediately followed up. [00:16:39] Speaker 02: Let me if we can deal with the threat thing. [00:16:41] Speaker 02: And then that statement, I mean, my response to that he immediately follows by that by saying, I want a lawyer. [00:16:46] Speaker 02: It's not that the statement was not admitted during trial. [00:16:49] Speaker 02: That's not the kind of statement that's going to suffice to show probable cause. [00:16:54] Speaker 04: But judge, it's a statement that that's not a gun when when when [00:17:03] Speaker 04: There's a photo and he matches the description of the person in the photo with the gun. [00:17:08] Speaker 02: That doesn't change the Second Amendment analysis that he says that's not a gun, Judge. [00:17:13] Speaker 02: And to stay, again, to stay with your description of a threat, I mean, I think the Second Amendment candidly is, as I've read the cases, is [00:17:25] Speaker 02: broader than you say. [00:17:26] Speaker 02: It's not saying, OK, the threat ended right here. [00:17:29] Speaker 02: So at this point, he's no longer protected by the Second Amendment. [00:17:33] Speaker 02: We're all human beings. [00:17:34] Speaker 02: When people get shot and run into our home wounded, our perception of the threat is going to be different based on different human beings. [00:17:44] Speaker 02: Some can be as the ones that the government describes in its brief. [00:17:49] Speaker 02: Just stay in the home. [00:17:50] Speaker 02: Stay quiet. [00:17:51] Speaker 02: Wait for the event to pass. [00:17:52] Speaker 02: There are others. [00:17:54] Speaker 02: the second amendment protects who take such threats with more emotion and and human emotion and and would and would go out to make sure that their family was safe. [00:18:09] Speaker 01: Make sure my colleagues don't have additional questions for you at this time. [00:18:11] Speaker 01: We'll give you a little time for rebuttal. [00:18:12] Speaker 01: Thank you. [00:18:19] Speaker 00: Mr. Hansford. [00:18:20] Speaker 00: Good morning and may it please the court, Eric Hansford for the United States. [00:18:25] Speaker 00: The good faith doctrine quickly takes care of the Fourth Amendment issues in this case. [00:18:30] Speaker 00: And on those Fourth Amendment issues, I think it's worth starting where Judge Wilkins' questions left us, which is that this is not a self-defense scenario, at least not so clearly a self-defense scenario as to defeat probable cause. [00:18:45] Speaker 00: By the defendant's phone account that's given in the affidavit, he is inside the safety of his home when he hears gunshots outside. [00:18:53] Speaker 00: His cousin then runs back inside. [00:18:56] Speaker 00: At that point, he is in his home safely. [00:18:59] Speaker 00: His cousin is in his home safely. [00:19:01] Speaker 00: There's no clear grounds for going outside in self-defense. [00:19:06] Speaker 00: Self-defense is a doctrine of necessity, a defense of necessity. [00:19:12] Speaker 00: And it is not something that can be invoked by running outside with a gun and trying to fire back. [00:19:18] Speaker 00: And at least it's not so clearly that sort of doctrine that it would defeat probable cause. [00:19:23] Speaker 00: And then we get an additional layer of deference through the good faith doctrine. [00:19:29] Speaker 00: There's also no defense of others. [00:19:30] Speaker 00: There's no defense of property claims here. [00:19:32] Speaker 00: And so for all those reasons, this was not the sort of scenario where potentially you would have a magistrate or a superior court judge denying a warrant. [00:19:43] Speaker 01: What would be that scenario? [00:19:45] Speaker 01: So if you have a situation in which the Warren affidavit itself is in the area of conduct that could be constitutionally protected in the sense that there couldn't be a statute that could? [00:19:57] Speaker 01: apply to prohibited. [00:20:00] Speaker 00: What I was just talking about is factual problems. [00:20:04] Speaker 00: Then I think there's a whole other set of potential legal problems, which is that we have a licensing regime in the District of Columbia that's been upheld by this court. [00:20:14] Speaker 00: And Ren Bruin, after this court, suggests that that is constitutional as [00:20:21] Speaker 00: modified by Wren, the DC Court of Appeals has upheld that licensing regime even more broadly than Wren at the time. [00:20:28] Speaker 00: And there are no cases that the defense has cited that would suggest that a facially valid licensing regime under the Second Amendment must give way in scenarios of self-defense. [00:20:39] Speaker 00: Maybe that is the case, but a Warren affidavit is not the scenario for litigating that sort of claim. [00:20:46] Speaker 00: I think the Michigan v. DeFillipio case that we cite in the briefs, which is discussed in the Hynd v. North Carolina case, that's that sort of scenario where the court says, even once there's a facially valid ordinance, the police are allowed to make arrests [00:21:04] Speaker 00: based on it, even if that ordinance is later struck down as unconstitutional, the fact that police made arrests based on that, that's supported by the Fourth Amendment and the police don't have to second guess the constitutionality of statutes. [00:21:18] Speaker 00: So I think that's a separate legal problem. [00:21:20] Speaker 01: And then what about the judge who issues the warrant? [00:21:22] Speaker 00: It's the same scenario. [00:21:25] Speaker 00: There's no reason that a judge has to be second guessing the constitutionality of seemingly facially valid statutes, or at least there's no cases cited that would suggest that. [00:21:37] Speaker 00: And that's particularly the case when that statute, that specific statute has been upheld both by this court and the DC Court of Appeals. [00:21:46] Speaker 04: But there is a self-defense [00:21:49] Speaker 04: The defense of self-defense is available to someone who doesn't have a license and carries a pistol outside of their home. [00:22:01] Speaker 04: That's correct. [00:22:02] Speaker 04: Under DC law. [00:22:03] Speaker 04: It's used every day at Superior Court. [00:22:06] Speaker 04: I used to use it. [00:22:07] Speaker 04: Yeah. [00:22:10] Speaker 04: So to the extent that this warrant can be read as [00:22:18] Speaker 04: There's a shooting, family member shot. [00:22:20] Speaker 04: Don't know where the shooters are, whether they're still in the area. [00:22:28] Speaker 04: One picks up a gun even if they don't have a license to go investigate whether there's still a threat. [00:22:42] Speaker 04: Why isn't that in the range of self-defense? [00:22:48] Speaker 00: One, I think whether that's in the range of self-defense at trial and for beyond a reasonable doubt is a very different question for whether it would defeat probable cause. [00:22:58] Speaker 00: But I think self-defense is a doctrine of necessity. [00:23:02] Speaker 00: What we say in the Robert Brown case from the DCCA that we cite in the briefs, you can't leave a safe haven [00:23:09] Speaker 00: and go out with your gun. [00:23:12] Speaker 00: That's not self-defense when you are leaving a safe haven to try to fire back. [00:23:16] Speaker 00: That's not self-defense. [00:23:18] Speaker 00: And again, certainly not self-defense on the kind of deferential probable cause scenario. [00:23:23] Speaker 00: And I do think [00:23:24] Speaker 00: it gets notable that the very competent counsel who tried this case below said, I'm not raising a self-defense claim in this case. [00:23:33] Speaker 00: And I do think that's informative in terms of whether it would so obviously defeat self-defense as to invalidate the warrant under the good faith doctrine. [00:23:41] Speaker 01: Can I just ask as a legal matter, unless I don't want to... Go ahead. [00:23:43] Speaker 01: Just as a legal matter, if it's a defense at the warrant stage, is a judge who issues a warrant [00:23:53] Speaker 01: expected to treat with a potential defense? [00:23:56] Speaker 01: Or does the judge, I just don't know the answer to this. [00:23:59] Speaker 01: Does the judge just not even take into account defenses because just don't know whether the defense is going to be asserted or how it's going to might be, don't even know there's going to be a trial, don't even know that the crime is committed. [00:24:09] Speaker 01: We're just talking about probable cause. [00:24:12] Speaker 00: So the briefing does not get into this issue, but I did kind of briefly look at it in preparing for argument. [00:24:19] Speaker 00: It seems like different courts take different positions. [00:24:22] Speaker 00: I think in the 11th Circuit and the 9th Circuit, an 11th Circuit site, it's an unpublished case, but it collects published cases. [00:24:30] Speaker 00: Rickerson v. Jeter, 2022 Westlaw, [00:24:34] Speaker 00: 2 1 3 6 0 1 7 collecting a bunch of 11 circuit cases says we don't even need to worry about police officers. [00:24:45] Speaker 00: These are in the 1983 qualified immunity contacts but saying police officers can [00:24:51] Speaker 00: execute an arrest warrant once they have probable cause as to the elements and they don't need to worry about affirmative defenses at all. [00:24:59] Speaker 00: Then there's a contrary position taken by the Sixth and Seventh Circuits. [00:25:04] Speaker 00: The Seventh Circuit case Brunson v. Murray, 843, F3rd, 698. [00:25:09] Speaker 00: They say police don't have to investigate affirmative defenses [00:25:13] Speaker 00: But if there's a very clear affirmative defense, they can't ignore that. [00:25:18] Speaker 00: So I think that's kind of where the case is. [00:25:21] Speaker 04: My understanding is that the latter is the majority position. [00:25:27] Speaker 04: And it's a position to me that makes the most sense. [00:25:30] Speaker 04: I mean, if you have a situation where the warrant says a person is attacked, [00:25:42] Speaker 04: and being beaten and stabbed by several assailants. [00:25:52] Speaker 04: And then in the process of that, he pulls out a gun and shoots and kills one of the assailants. [00:26:01] Speaker 04: And that's what's in the warrant. [00:26:06] Speaker 04: I think there'd be ample case law that there's no probable cause for carrying a pistol without a license or first-degree murder or any sort of homicide on those facts. [00:26:18] Speaker 04: The police don't have to investigate, but what they have points completely at a self-defense scenario, not at a crime. [00:26:28] Speaker 00: So as I said, I haven't gone, I trust the court's kind of representations. [00:26:32] Speaker 00: I haven't gone deeply. [00:26:33] Speaker 00: I do read the 11th Circuit and 9th Circuit cases as potentially contrary to that. [00:26:39] Speaker 00: And this issue obviously isn't brief. [00:26:41] Speaker 00: I do think it's worth noting that this is a search warrant context as opposed to an arrest warrant context. [00:26:48] Speaker 00: And so I think if you have, for example, a homicide and potentially it appears to be self-defense, [00:26:55] Speaker 00: I think you would still expect the police to be executing search warrants as part of the homicide investigation. [00:27:01] Speaker 00: They wouldn't be cutting off the investigation because initially it appears to be self-defense. [00:27:07] Speaker 00: They'd still be investigating it. [00:27:09] Speaker 00: And then maybe you're not bringing charges and that maybe you're not bringing an arrest warrant. [00:27:13] Speaker 04: It still has to be probable cause that a crime was committed. [00:27:16] Speaker 00: There does, but I think how affirmative defenses play into that, at least on my quick read of the case law, it's just unclear. [00:27:24] Speaker 00: But again, that's certainly not briefed in this case, and I don't think is presented by this factual scenario where there is not a clear self-defense that would apply. [00:27:37] Speaker 00: I think in this scenario, we would be comfortable defending this as a conviction based purely on these facts, kind of beyond a reasonable doubt. [00:27:46] Speaker 00: But that's not obviously the issue that's presented to this court. [00:27:51] Speaker 00: I didn't just want to know quickly on the typo in the warrant. [00:27:54] Speaker 00: Just to be clear, we're not conceding that it was defective. [00:27:57] Speaker 00: The warrant was defective as to that. [00:27:59] Speaker 00: We agree there's a typo, but we think the parenthetical [00:28:03] Speaker 00: carrying a pistol without a license, just adequately explain what the grounds are for the warrant in this case. [00:28:14] Speaker 03: One question on the standard of review, the reply brief cites United States versus Castle to try to suggest that we are in some sense bound by the district board's findings rather than being able to sort of conduct an independent review. [00:28:29] Speaker 03: Have you looked into that case and can you explain why and when we apply that rule? [00:28:35] Speaker 00: Sure. [00:28:36] Speaker 00: So CASEL is a case where it's a tarry stop on it. [00:28:41] Speaker 00: And so there's a motion to suppress based on that. [00:28:43] Speaker 00: There isn't a warrant in that case. [00:28:45] Speaker 00: And so the district court is making fact finding. [00:28:48] Speaker 00: And this court would defer to that fact finding, but would not defer to the ultimate question on probable cause. [00:28:55] Speaker 00: I think the Supreme Court case on Ornelas, which I think is 1996, explains that probable cause gets reviewed de novo. [00:29:03] Speaker 00: subsidiary fact finding gets clear air review. [00:29:07] Speaker 00: I think probably the more helpful case is the Glover case from this court in 2012, which is in the affidavit, warrant affidavit context. [00:29:19] Speaker 00: That likewise says you get clear air review for fact finding [00:29:23] Speaker 00: and de novo review for sufficiency of the of the warrant um and but but when you have a warrant affidavit unless there's something like a frank's claim in which case you would take evidence normally you're just looking at the affidavit and seeing if there's probable cause based on that that gets de novo review if there are no further questions we'd ask this court to defer thank you counsel [00:29:49] Speaker 01: We'll give you two minutes for rebuttal. [00:29:51] Speaker 02: Thank you, Judge. [00:29:52] Speaker 02: I want to follow up on Judge Garcia's question about the standard of review. [00:29:56] Speaker 02: We have here egregiously erroneous findings by the District Court, by the District Court, the U.S. [00:30:06] Speaker 02: District Court, which said erroneously, and I think it's undisputed, that my client, Mr. Payne, was the shooter. [00:30:14] Speaker 02: And I think it's important, although I don't want to focus so much on the Second Amendment aspect, that that's a bit of a revealing comment. [00:30:20] Speaker 02: Because what the district court was saying, in effect, was this was the aggressor. [00:30:26] Speaker 02: This was the shooter. [00:30:27] Speaker 02: This was not the victim of a shooting who's then reacting to the threat. [00:30:32] Speaker 02: And then there are other errors that are made by the district court. [00:30:40] Speaker 02: And so for this court, for the first time, to say, OK, we're going to review all the record here, it's not a good case to do that. [00:30:51] Speaker 02: I also want to address the affirmative defense thing that came up, because I think that muddles the issue. [00:30:58] Speaker 02: We are talking about a search warrant required by the Fourth Amendment. [00:31:04] Speaker 02: So we're not talking about whether the defendant could raise affirmative defenses at trial. [00:31:10] Speaker 02: We're talking when the self-defense term that we've been talking about is from constitutional law. [00:31:17] Speaker 02: It's talking about the scope of the Second Amendment right to bear arms. [00:31:23] Speaker 02: And so [00:31:24] Speaker 02: When the police see a person exercising, in this case, it happens to be the Second Amendment. [00:31:31] Speaker 02: But there's a lot of other constitutional rights out there. [00:31:34] Speaker 02: And there's a description of someone exercising their constitutional rights and says, goes to a magistrate judge, says, Judge, give us authority to search this person's home. [00:31:49] Speaker 02: The answer is no, you've just laid out very troublesome constitutional issues for me. [00:31:56] Speaker 02: I'm not going to let you search this person's home. [00:31:59] Speaker 02: In addition, I see I'm over my time, but just the Second Amendment aspect is the aspect I have focused on. [00:32:07] Speaker 02: But there are other [00:32:09] Speaker 02: problems with the affidavit, one of them being that for the first time here in the government's brief, we're hearing that turns out they were searching for the misdemeanor carrying a pistol, not the felony carrying a pistol. [00:32:22] Speaker 02: Now, as it happens for second amendment purposes, and it's important for me to be clear about this, that doesn't matter. [00:32:28] Speaker 02: Ren has said your right to [00:32:31] Speaker 02: a firearm and carry a firearm extends not just to your home, but outside your home for self-defense purposes. [00:32:39] Speaker 02: But still, don't we need a district judge to make a finding? [00:32:46] Speaker 02: Oh, yeah, this was clearly this kind of violation that the Superior Court judge was asked to issue a search warrant for. [00:32:57] Speaker 02: Thank you, Judge. [00:32:58] Speaker 02: Thank you. [00:32:59] Speaker 01: Thank you, counsel. [00:33:00] Speaker 01: Thank you to both counsel. [00:33:01] Speaker 01: We'll take this case under submission. [00:33:02] Speaker 01: Mr. Cohen, you were appointed to represent the appellant in this matter, and the court thanks you for your assistance.