United States Court of Appeals for the Fourth Circuit

Um, we have a case pending in the Northern District of California brought by other conservation groups, but also by a whole coalition of states led by California, which has recently filed their case.

Um, and then the Southern Environmental Law Center, on behalf of some groups, filed a case in, uh, South Carolina, uh, which is in the Fourth Circuit, as people know.

So, uh, those cases are still in the early stages.

The government has not responded yet, um, and so we will see how those cases unfold.

In fact, in the United States v.

Roof, the Fourth Circuit declined to apply Atkins to a defendant with ASD who had an IQ of 125, noting that his limitations and adaptive skills alone are insufficient to render him intellectually disabled.

U.S. v.

Roof, Fourth Circuit, 2021, with an IQ of 119, said, defendant likewise fails to qualify.

Further, even if adaptive deficits alone could give rise to a categorical exemption, defendant has presented no authority that the adaptive deficits of ASD have the equivalent effect on culpability or on the ability to make persuasive showing of mitigation as does an intellectual disability.

He dedicates a large portion of his briefing to describing how individuals with ASD like those who are intellectually disabled, struggle to present meaningful mitigation evidence due to their adaptive deficits.

Unless the court has questions, um, I would also point out, of course, that, you know, the, the Ninth Circuit and the Tenth Circuit went against the state on this position.

The Sixth Circuit and the Fourth Circuit, albeit in dictum, indicated that they agree with the state on this issue.

And so we would ask the court to look to those cases rather than the Ninth or the Tenth.

I'll move to the merits unless the court has further questions.

So, uh, Judge Cox, I think you pointed to, to what the Ninth Circuit said in Meta.

I think that's one r- way to read cause of action, is that it makes clear that Section 230 is available as a defense, um, to declaratory judgments or, or actions for injunctive relief.

Um, the, the Fourth Circuit, Judge Wilkinson, in the Zarin opinion back in 1997, uh, used the cause of action language on its own, not the liability language, to respond to an argument that, uh, Mr. Zarin in that case raised about retroactivity.

So I think that's another way, um, to, to possibly read the cause of action language as doing independent work.

your local circuit court of appeals, in my case, the D.C.

Circuit, in Adam's case, the Second Circuit, and in Holly's case, the Fourth Circuit.

But you don't have an appeal as of right to the Supreme Court.

You have to petition the court to hear your case.

But the underlying question about whether the conviction is a drug offense or a crime of violence is a legal question.

Now, for the benefit of my clerks, is it still the Second and Fourth that go the other way clearly, the Second Circuit and the Fourth Circuit?

I think that's correct, Your Honor.

Did you find any more circuits?

And we don't view Palomar Santiago that broadly.

I recognize we are swimming against a stream of circuit court cases from the First Circuit, the Ninth Circuit, and the Fourth Circuit, basically saying that ineffective assistance of counsel doesn't establish D1 and D2.

But if the court's looking for a framework of another circuit judge adopting our position, I'd refer you to Judge Sung's dissent in the Flores Bustos case, which I think he does a good job of explaining that.

Although the Supreme Court and Palomar Santiago addressed an argument from Mr. Palomar Santiago based off of the Supreme Court's decision in Ross v. Blake, the Supreme Court in Palomar, Santiago, didn't say that Ross versus Blake is not relevant at all.

Um, and I'm, I don't think that's on the show notes, so we can just talk about that real quick.

But yeah, as a lot of you guys know, I was representing Patrick Tate Adamiak in the Fourth Circuit, who was, um, arrested and then convicted for h- machine guns and rocket launchers when all he had was cut up non-functioning garbage.

And, you know, the Fourth Circuit is really aggressively anti-gun, but mostly because of the work of Mar- Mark Pennock, we have some of the best pro-gun decisions out of it.

And the Fourth Circuit just completely threw the case in a non, uh, non-published opinion, basically said, "Get out of here." Um, and then the Supreme Court punted it.

So i- it was, you know, not looking great.

And this is a guy who was in his 20s when he was arrested and was sentenced to 20 years for possession of these non-functional, cut up pieces of junk that he bought with a credit card, mind you, most of which you can still buy today in-

He, he did not have a functioning thing, and the ATF never bothered to even put one of these machine guns together 'cause they knew that you couldn't.

And there were the moves-