This week President Obama nominated Chief Judge Merrick Garland of the D.C. Circuit to fill the Supreme Court seat held by Antonin Scalia. Following our long tradition when high court nominees are named, the Reporters Committee looked into Judge Garland’s decisions in First Amendment and Freedom of Information Act cases during his 17-year tenure on the U.S. Court of Appeals in Washington, D.C. We do not grade the nominees or make a recommendation for or against their approval by the Senate; we only try to summarize their records to offer perspective.
During his long service on the appellate court, Judge Garland took strong stands in two significant dissents in support of a robust reporter’s privilege and a First Amendment defense to publishing lawfully obtained information. His decisions in Freedom of Information Act (FOIA) cases did not always favor openness, but generally show a commitment to government accountability. Decisions in other areas do not reveal strong positions on media law issues.
Though Judge Garland was a judge on the D.C. Circuit when the contempt case of New York Times reporter Judith Miller was on appeal, the docket and the decision denying en banc review note that he “did not participate” in the review decision, without further elaboration.
In a Privacy Act suit brought by Wen Ho Lee, an atomic scientist who had been accused by the FBI of giving nuclear secrets to China, journalists for several news organizations had been held in contempt for refusing to disclose the names of any individuals within the FBI who may have provided them with information about the investigation. The district court judge found that the identities of possible sources went to the heart of the matter in question, and alternative sources of the information had been exhausted.
The contempt citations were upheld by a three-judge appellate panel. When the entire court subsequently declined to rehear the appeal, Judge Garland separately dissented from the denial of rehearing en banc. He also joined the dissent of his colleague, Judge David Tatel, who wrote that the most important element of the balancing test in determining whether to apply the reporter’s privilege in a civil suit was “weighing the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” which was established in the circuit’s precedent in 1981.
The significance of the court’s decision in this case should not be underestimated. In many cases involving leaks of government information concerning identifiable individuals, those individuals will have viable claims under the Privacy Act. Moreover, the Act is not limited to private individuals. It is equally available to public officials — and to former public officials — whether they have been accused of corruption or merely of incompetence. It would, for example, be available to former officials seeking to learn who leaked the information that forced them to resign in their administration’s own Watergate.
Barring an unexpected confession by the leaker, in most such cases the subject of the leak will be able to satisfy the centrality and exhaustion requirements cited in the court’s opinion. Thus, if the reporter’s privilege is limited to those requirements, it is effectively no privilege at all. Plaintiffs wielding Privacy Act suits will routinely succeed in putting reporters who receive whistleblower leaks to the choice of testifying or going to jail. And bridled by nothing other than plaintiffs’ private interests, the more such strategies succeed, the more they will be employed. Indeed, where former officials have themselves been indicted, they may find that issuing third-party subpoenas to reporters in Privacy Act suits usefully supplements criminal discovery.
All of this is inconsistent with the commitment we made in Zerilli, where we promised that, “when striking the balance between the civil litigant’s interest in compelled disclosure and the public interest in protecting a newspaper’s confidential sources, we will be mindful of the preferred position of the First Amendment and the importance of a vigorous press.” Zerilli v. Smith, 656 F.2d 705, 712 (D.C.Cir.1981) . . . .
The only way to render the reporter’s privilege effective in the face of Privacy Act claims is to include the requirement . . . that the court “weigh[ ] the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” Zerilli, 656 F.2d at 712.
Judge Garland joined a dissent written by Judge David Sentelle, finding that someone who lawfully obtained a recording could not be punished for publishing it, even if they should have known that the recording was unlawfully made.
The case involved a 1996 recording of a cell phone conversation between members of the Republican leadership in the House of Representatives in which they discussed how to handle alleged ethical violations of House Speaker Newt Gingrich, including information about “whether Gingrich had violated his settlement agreement with the Ethics Committee.” The tape was given to Rep. James McDermott, who played it for New York Times reporter Adam Clymer and allowed him to record it. After protracted litigation and appeals over whether McDermott’s actions violated the federal wiretap act, the case ended up before the entire D.C. Circuit. The majority of a closely split court held that McDermott did not have a First Amendment defense, primarily because he violated congressional ethics standards in playing it for a reporter.
In the dissent joined by Judge Garland, Judge Sentelle wrote that “the issue is: ‘Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?’” Judge Sentelle wrote that he would answer that question “in the negative,” and that the U.S. Supreme Court decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), which was decided after the first appeal in this case, made clear that such action should not be punished.
The Glomar doctrine is in large measure a judicial construct, an interpretation of FOIA exemptions that flows from their purpose rather than their express language. In this case, the CIA asked the courts to stretch that doctrine too far — to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible. “There comes a point where … Court[s] should not be ignorant as judges of what [they] know as men” and women. Watts v. Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949) (opinion of Frankfurter, J.). We are at that point with respect to the question of whether the CIA has any documents regarding the subject of drone strikes.
The ACLU filed a FOIA request with the Drug Enforcement Agency (DEA) and Executive Office for United States Attorneys seeking disclosure of (1) the case name, docket number, and court of all criminal prosecutions in which a person was tracked using cell phone location data, where the government did not first secure a warrant based on probable cause for such data; and (2) policies and procedures followed to obtain cell phone location information for law enforcement purposes. After the ACLU filed suit against the DOJ to compel production of the requested documents, the district court ordered the DOJ to release the requested docket information only in cases that ended in convictions or guilty pleas, but not in cases where the person was acquitted or where the case was dismissed or sealed (and remained under seal).
The D.C. Circuit, in an opinion written by Judge Garland, affirmed the district court’s determination that the docket information in cases that ended in convictions or guilty pleas must be released and is not exempt under Exemption 7(C). The court held disclosure of the docket information in cases that ended in convictions or guilty pleas implicated slight privacy interests, but that those weak privacy interests were outweighed by the significant public interest in disclosure, given the considerable public interest in the use of and justification for warrantless cell phone tracking and the considerable information disclosure would provide on the use, details, and efficacy of cell phone tracking.
Judge Garland authored a unanimous opinion for a three-judge panel of court on the application of FOIA’s fee waiver and fee categorization provisions. The lengthy and sweeping opinion made clear that the government failed in its regulations and arguments to take into account the 2007 FOIA amendments and the changing nature of news dissemination in the digital age.
For a requester that serves (or plans to serve) the public through multiple outlets — here, newsletters, press releases, press contacts, a website, and planned reports — those must be considered in combination. An entity with an extensive record will ordinarily qualify with only a thin recital of its plans (or perhaps none at all). Conversely, an entity with little or no historical record of distributing its work (like the National Security Archive) may make up for that absence by concretely setting out its plans to do so.
The court also clarified that the requester’s status as a member of the news media does not turn on the nature of any individual request: a reporter “is a representative of the news media regardless of how much interest there is in the story for which he or she is requesting information.” The overall effect of Judge Garland’s opinion is that new and emerging news entities, as well as those that primarily exist online, will have a much lower burden when seeking recognition as a member of the news media and fee waivers for FOIA requests.
The USDA calendars, by contrast, were not just ‘stored’ in their authors’ offices, but were accessed and updated on a daily basis. Indeed, although not dispositive, the technological changes in the period since Assistant Attorney General Baxter kept his appointments in paper calendars are not without significance. The technologically savvy USDA officials kept their calendars ‘on the FSIS computer system,’ . . . thus necessarily subjecting them to the control of that systems administrators. At a minimum, this suggests that USDA had more ‘control’ over its officials’ calendars than the Justice Department had over Baxter’s.
Judge Garland rejected the argument that just because the calendars also contained personal entries they were not within FOIA’s reach. However, the court did find that the calendar of a sixth less-senior official was not an agency record because it had only been distributed to his secretary.
[O]ne has to ask why — in the age of the Internet — the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI’s purpose, and with entries restricted to a small fraction of even the ‘prominent and noteworthy’? Why, in short, doesn’t the FBI just Google the two names? Surely, in the Internet age, a ‘reasonable alternative’ for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person’s death.
Judge Garland authored the opinion for a unanimous court holding that an order by the district court for expedited processing made the plaintiff a “prevailing party” eligible for an award of costs and attorneys’ fees under the then-prevailing Buckhannon standard.
Judicial Watch filed a FOIA request with the Secret Service seeking logs of all visitors to the White House in a specified time period. In an opinion authored by Judge Garland, the D.C. Circuit held that logs of visitors to the Office of the President were not “agency records” within the meaning of FOIA but were instead subject to the Presidential Records Act. However, the court held, logs of visitors to other offices in the White House complex that are themselves subject to FOIA, such as OMB, are “agency records,” and must be produced.
In deciding the case, Judge Garland wrote that the outcome of the four-factor test for determining “control” for purposes of determining whether records were the Secret Service’s “agency records” was ambiguous, but that separation of powers concerns tipped the balance in favor of a determination that logs of visitors to the Office of the President were not. Judge Garland emphasized that the court’s decision gave no weight to, and did not rest upon, legal conclusions in a memorandum of understanding between the Secret Service and the White House declaring that the visitor logs are Presidential Records under the exclusive legal custody of the White House.
The D.C. Circuit, in an opinion written by Judge Garland, held that the District Court did not abuse its discretion in finding that a FOIA requester was not entitled to attorneys’ fees. Assuming without deciding that the requester was eligible for attorneys’ fees, the court concluded that he was not entitled to such fees under the four-factor test for determining entitlement for fees because: (1) there was little public benefit derived from the case, which resulted in the production of just two documents so heavily redacted that they contributed only “scant” information to the public record; the (2) commercial benefit to the requester and (3) the requester’s interest in the records weighed neither in favor nor against eligibility for fees where the requester had a professional academic interest in the records; and (4) the agency had properly invoked the deliberative process privilege to withhold the vast majority of the requested documents and was only instructed by the district court to determine whether segregation and disclosure of non-privileged factual information was possible.
Judge Garland authored a unanimous opinion holding that technical orders concerning the care, maintenance, or repair of military equipment are exempt from FOIA under Exemption 3 and a federal statute, 10 U.S.C. § 130.
The Air Force initially refused to produce technical orders requested by Newport, a commercial data library, pursuant to Exemption 3 and § 130(a), which provides that the Department of Defense may withhold certain “technical data with military or space application” that cannot be exported without a specific license under the relevant export control statutes. However, the Air Force eventually produced the technical orders to Newport pursuant to Department of Defense Directive 5230.25, which provides that, notwithstanding § 130(a), it is department policy to provide technical data that discloses “critical technology” to “qualified U.S. contractors” for “legitimate business purposes,” as long as the recipient accepts restrictions on its redistribution. Newport nevertheless sought disclosure of the requested technical orders pursuant to FOIA, arguing that the requested technical orders were not “critical technology” and therefore were not governed by Directive 5230.25.
The D.C. Circuit affirmed the district court’s dismissal of Newport’s FOIA claim. The court held that Newport’s FOIA claim was not moot, even though the Air Force had provided the requested technical orders, because Newport’s challenge was to an Air Force policy, namely its practice of denying FOIA requests for data that does not depict “critical technology” and requiring Newport to seek the data under the more restrictive terms of Directive 5230.25. Nevertheless, the court affirmed the grant of summary judgment dismissing Newport’s FOIA claim because it held that § 130(a) is an Exemption 3 statute that covers the FOIA requests that Newport made to the Air Force.
In an action challenging National Highway Traffic Safety Administration (NHTSA) regulations governing the disclosure of “early warning reporting” (EWR) data, the D.C. Circuit, in an opinion written by Judge Garland, held that 49 U.S.C. § 30166(m)(3)(B) of the TREAD Act does not meet the threshold criteria for a FOIA Exemption 3 statute.
The TREAD Act amended the 1966 Safety Act, which imposed reporting requirements on motor vehicle and motor vehicle equipment manufacturers. The TREAD Act directs the Secretary of Transportation to adopt a regulation expanding the scope of information that manufacturers must submit to NHTSA, including EWR data, which is information that assists the agency in identifying safety defects in motor vehicles or motor vehicle equipment.
Section 30167(b) of the Safety Act requires the Secretary to disclose information obtained under the Safety Act when doing so will assist in carrying out §§ 30117(b) and 30118-21.
Public Citizen brought suit to challenge an NHTSA regulation governing the disclosure of EWR data. The Rubber Manufacturers Association (RMA) intervened and filed a cross-claim challenging NHTSA’s rejection, in adopting the regulation, of RMA’s suggestion that § 30166(m)(4)(C) is a withholding statute that renders all EWR data protected from disclosure under FOIA Exemption 3 “unless the Secretary determines that the disclosure of such information will assist in carrying out” the specified provisions of the Safety Act.
The D.C. Circuit affirmed the decision of the district court, holding that § 30166(m)(4)(C) does not meet the threshold criteria for a FOIA Exemption 3 statute because it does not specifically exempt EWR data from disclosure. Writing for the court, Judge Garland explained that by its plain language, § 30166(m)(4)(C) does not mean that EWR data may not be disclosed under any circumstances without the specified Secretarial determination. Rather, § 30166(m)(4)(C) provides that EWR data is not subject to disclosure pursuant to § 30167(b) without the specified Secretarial determination. Accordingly, § 30166(m)(4)(C) cannot be a FOIA Exemption 3 statute because it does not specifically exempt certain matters from disclosure.
The FDA requires drug companies to submit investigational new drug applications (INDs) before the company may begin clinical testing of a new drug. INDs describe the drug, the results of laboratory and pre-clinical testing, and the proposed clinical testing.
In considering whether Exemption 4 applies to INDs because their disclosure would cause substantial harm to the competitive position of the drug company, the D.C. Circuit rejected an argument by Public Citizen that under Exemption 4, the court should weigh the competitive harm done to the drug company by the public disclosure of confidential information against “the strong public interest in safeguarding the health of human trial participants.” The court wrote that the central purpose of FOIA is to reveal the workings of the government, and that Public Citizen could not bolster its case for disclosure “by claiming an additional benefit in that, if the information is disclosed, then other drug companies will not conduct risky clinical trials of the drugs that [the company] has abandoned.” The court ultimately concluded that four of the five INDs at issue in this case were exempt from disclosure under Exemption 4.
were not released to the general public; only the Security Council delegates saw them. In fact, the photographs were not “released” at all. Although Ambassador Albright displayed them to the delegates, she retained custody, and none left the U.N. chamber.
The court went on to hold that the agencies’ searches for responsive records were not inadequate, and that other responsive documents were properly withheld under Exemptions 1 and 3.
In a libel suit between business partners and their attorneys over communications leading to a lawsuit over their business, Judge Garland held that the judicial proceedings privilege was broad because it “is intended to facilitate candid discussion, not to obscure it,” and thus allegedly defamatory comments in the communications were privileged.
In a business defamation suit, Judge Garland declined to find that the evidence of common-law malice was sufficient to overcome a self-defense privilege asserted by the libel defendant.
The panel rejected claims both that the statements themselves and “extrinsic evidence” established such malice. Having found that a common-law privilege sustained the dismissal, the panel declined to reach the First Amendment argument on which the defendants had also prevailed below, that the plaintiffs were limited-purpose public figures.
An “infomercial” producer claimed an FTC press release was false and misleading and violated the First Amendment because the falsity was in retaliation for his criticism of the commission. Judge Garland wrote that the plaintiff had failed to state a claim because the release was not false, after finding that determinations of truth or falsity can be determined as matter of law if “no reasonable juror” could find the statements false.
In a libel suit between neighbors over noise complaints, Judge Garland upheld the dismissal of the claim under the self-defense privilege, because the defendants were opposing the plaintiff’s attempts to have them evicted or disciplined by their university. The district court had granted summary judgment on other grounds, having rejected the self-defense argument.
Judge Garland led a three-judge panel that rejected an appeal of a district court order requiring the military to release videotapes of forced extractions of prisoners from their cells at Guantanamo Bay. Judge Garland wrote that the appellate court lacked jurisdiction to hear the appeal; the panel did not rule on the merits. Because issues concerning redactions to the videos were still before the district court, Judge Garland concluded that there was no final order to appeal and the finding was not a collateral issue subject to an immediate appeal.
Judge Garland upheld the constitutionality of the Honest Leadership and Open Government Act, which requires registered lobbyists to disclose the identity of organizations that made monetary contributions and actively participated in planning, supervision, or control of lobbying activities. Judge Garland, writing for a three-judge panel, concluded that the act was not improper on its face or as applied to the plaintiff, and was not unconstitutionally vague.
“We agree with NAM that these are substantial First Amendment interests and that requiring disclosure can burden them. . . . But we also note that the [Supreme] Court, recognizing the lesser burdens that disclosure generally imposes on First Amendment interests, has upheld numerous statutes requiring disclosures by those endeavoring to influence the political system,” Judge Garland wrote.
Judge Garland ruled that a Postal Service regulation banning soliciting signatures on petitions, polls, or surveys on Postal Service property was not narrowly tailored to advance any content-neutral goal, did not leave open ample alternative channels of communication, and was not reasonable because of its broad scale.


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America's 1st Freedom, Nov. 2011. More by Kopel on post-Heller.
Does the Second Amendment protect anything other than a handgun in the home? When anti-gun laws are challenged in court, should judges uphold repressive ordinances like the District of Columbia's gun licensing scheme, which forces applicants to spend hundreds of dollars and dozens of hours just to buy an ordinary rifle? These are the questions being fought in the courts right now, in cases backed by the NRA. What answers the courts will provide are far from certain. The ultimate answers will depend on whether or not the next generation of federal judges is appointed by a President who values the Second Amendment.
When considering the constitutionality of any law, judges use a variety of doctrinal tools. What tools they choose will often determine the result of a case. So let's take a look at the constitutional toolbox.
When faced with a constitutional case, the first question a judge has to decide is whether the conduct at issue is part of a constitutional right. For example, the First Amendment declares that "Congress shall make no law ... abridging the freedom of speech, or of the press." Does that mean that Congress can pass no laws about anything a person might say?
Not at all. Suppose some people formulate a conspiracy to rob a U.S. Postal Service truck. They create the conspiracy by talking with each other--by engaging in speech. They are caught, and criminally prosecuted for violating a federal statute which punishes conspiracies to interfere with the U.S. mail. If the conspirators tried to raise a First Amendment defense, they would lose.
The court would explain that even though the conspiracy involved saying words out loud ("speech"), the First Amendment does not protect everything that a person says. Rather, the Amendment protects "the freedom of speech," and conspiracies to commit violent crimes are not part of "the freedom of speech."
In a Second Amendment case, the judge must likewise decide whether the conduct even involves the Second Amendment right. A few cases are easy: possessing a handgun in the home for self-defense is part of the Second Amendment, because that was the particular conduct as issue in District of Columbia v. Heller, and the Supreme Court ruled 5-4 that Mr. Heller did have a Second Amendment right to own a handgun for self-defense.
Conversely, if a person wanted to own his own battle tank and corresponding live ammunition, a court would certainly rule that the person has no Second Amendment right to do so. The Second Amendment's language of "keep and bear arms" implies that the Amendment protects weapons that a person can "bear" or carry. A tank bears the user, and not vice versa, so tank ownership is not part of the Second Amendment.
Now for the harder cases: What is a person wants to possess a rifle or shotgun for home defense? What about carrying a handgun outside the home for protection? What if the person wants a gun for something other than home defense--such as target shooting, hunting, or collecting? What about air guns? Knives, swords, or bows? Electronic devices such as Tasers? Chemical self-defense sprays? Are any or all of these within the scope of the Second Amendment?
There is much language in the Supreme Court decisions in Heller (2008) and McDonald v. Chicago (2010) that suggests that the answer to all these questions is "yes." However, the Supreme Court has not ruled on a case directly presenting such issues.
Thus, some lower courts, or other government entities, now acknowledge a Second Amendment right that only goes as far as the precise issues in Heller and McDonald (handguns for home defense) and not one inch further. For example, some courts have refused to accept any right to carry outside the home.
Once an activity is acknowledged as being within the scope of a constitutional right, does that mean that any restrictions on the right are unconstitutional? Definitely not. Courts use several tests, or "standards of review," to determine if something violates a right. Which test depends on the particular right, and on how close something is to the core of that right.
Artistic expression is considered part of the core of the First Amendment. Suppose a city council outlawed any performance of Shakespeare's Romeo and Juliet. The city council said that the ban is needed because the play involves teenage suicide, and the council is worried that the play might inspire copycat suicides by the audience.
Because the ban is a content-based restriction on speech, the court would apply the standard of "strict scrutiny." To pass strict scrutiny, a law must involve a "compelling state interest," and must be "necessary" to that interest. "Necessary" means that the law is "narrowly tailored" and there is no "less restrictive alternative."
A court would likely conclude that preventing teenage suicide is certainly a "compelling state interest." In the context of gun control laws, the prevention of homicides and other violent crimes would be a compelling state interest.
But the Romeo and Juliet ban would not be "necessary." The law prohibits anyone, not just at-risk teenagers, from seeing the play, so the ban is not "narrowly tailored." Further, the ban is not the "least restrictive alternative." Instead of forbidding the play, the city council could provide funding for suicide prevention programs, could distribute anti-suicide pamphlets, and so on.
Not all First Amendment restrictions get strict scrutiny. Commercial speech receives less protection than political, artistic, or scientific speech. So a restriction on product advertising would be subject to "intermediate scrutiny": does the law protect an "important" government interest, and is there a "substantial" relationship between the law and the interest? For intermediate scrutiny, there is no requirement for narrow tailoring or less restrictive alternative.
As for laws for which no constitutional right is involved (e.g., conspiracy to rob mail trucks), there is the lowest standard of review: "rational basis." The law must support a "legitimate" government interest, and the law must have a "rational" relation to that interest. Almost any law can pass the rational basis test.
Before Heller, many courts upheld all gun laws because they believed that ordinary citizens had no Second Amendment rights, and so a gun ban, or other harsh restriction, was proper because legislators could have had a "rational" belief that preventing ordinary citizens from having guns would reduce gun misuse.
For all the three major standards of review (strict scrutiny, intermediate scrutiny, and rational basis), there are variants, special situations, and so on, but we'll skip over those. In practice, the intermediate scrutiny is the standard which gives the judge the most discretion in deciding a case.
Notably, the Heller Court did not formally announce a standard of review for Second Amendment cases, so lower courts have been figuring out the standard by drawing implications from Heller. Judges have taken very different approaches.
In Heller II, the NRA filed suit against D.C.'s post-Heller gun licensing laws, which are the most cumbersome in the United States. The Heller II suit also challenged D.C.'s ban on magazines holding more than 10 rounds, and on so-called "assault weapons"--a ban which outlaws hundreds of ordinary firearms.
Federal district judge Ricardo Urbina upheld all the restrictions. He said that strict scrutiny did not apply to anything involving the Second Amendment. Intermediate scrutiny applied only for something related to armed defense of the home. Because D.C.'s intensely bureaucratic gun registration system limited the acquisition of firearms for home defense, intermediate scrutiny came into play. Judge Urbina ruled that the laws passed intermediate scrutiny, since the D.C. city council had relied on evidence from the Brady Campaign that restrictive laws reduced gun crime.
As for so-called "assault weapons" and magazines holding more than 10 rounds, there was no constitutional protection at all. The case is currently on appeal to the federal Circuit Court of Appeals for the District of Columbia.
An entirely different approach was taken by the Seventh Circuit Court of Appeals, which hears federal appeals from Illinois, Indiana, and Wisconsin. After losing the McDonald case, the Chicago city council enacted a gun licensing law which required anyone who wished to own a gun to receive training at a target range. And then the city council prohibited the operation of any target range within city limits.
In Ezell v. Chicago, the Seventh Circuit ordered a preliminary injunction to stop enforcement of the range ban. The court decided that because home defense is the "core" of the Second Amendment right, training for home defense must be fairly close to the core. Thus, the standard of review for the range ban was almost what the court called "not quite" strict scrutiny. According to the Seventh circuit, "The City must establish a close fit between the range ban and the actual public interests it serves, and also that the public's interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights."
The ban on target ranges failed the not-quite strict scrutiny test. As justification for the ban, the Chicago lawyers said that places near where many gun owners congregated might be targets for robbery. Yet the city presented not a shred of evidence to substantiate its supposed fear.
The Chicago government also claimed to be worried about accidental injuries at ranges, but the court cited the NRA Range Source Book to show that were ways to prevent accidents without banning ranges. Likewise, Chicago's lawyers fretted that a business might set up a mobile target range inside a truck. The truck might not have sufficient handwashing facilities, so there could be a risk of lead contamination for range users.
The Seventh Circuit recognized that Chicago's purported reasons for the ban were obviously pretextual, and served no public interest.
If other courts adopt the Ezell standards, then judicial protection of the Second Amendment will be fairly robust. If they follow the Heller II standards, then the Second Amendment will offer little practical protection, except against handgun bans in the home.
While the tripartite standards of review (strict/intermediate/rational) take care of many cases, there are some other standards of review. In the 1992 case Planned Parenthood v. Casey, the Supreme Court created a special standard for abortion. According to Planned Parenthood, there is no abortion right after fetal viability. Pre-viability, the standard is whether the restriction is an "undue burden." An "undue burden" means "a substantial obstacle in the path of" exercise of the right. That a law has the "effect of increasing the cost or decreasing the availability" does not necessarily mean that the law is an "undue burden."
The federal Ninth Circuit Court of Appeals encompasses the nine far-western states. The long-running Nordyke v. King case challenges the ban on gun shows on the county property of Alameda, California. In the latest iteration of Nordyke, the Ninth Circuit adopted a variant of the undue burden test. Under Nordyke, only laws which posed a "substantial burden" on Second Amendment rights would receive a close look from the judiciary. The gun show ban was not a "substantial burden," because even though it made buying guns more expensive, there were alternative places to buy guns, and so the county's ban did not prevent people from obtaining guns for self-defense.
Historically, two other standards for right to arms cases have been important for state courts interpreting state constitutions. These two could be used by courts analyzing the Second Amendment.
The "frustration" test asks whether a law "frustrates" the exercise of the right to keep and bear arms, or "perfects" the exercise of the right. The classic 19th century application of the test was to uphold bans on concealed carry. Courts reasoned that a ban on defensive carry would "frustrate" the right to keep and bear arms. However, a law which allowed open carry but banned concealed carry would "perfect" the manner of exercising the right.
Especially in the latter part of the 20th century, many state courts used a "reasonableness" standard. How courts applied the standard varied tremendously. Some courts used "reasonable" as a basically a synonym for "rational basis," so that even complete bans on handguns could be upheld--as in the 1984 Illinois Supreme Court's Kalodimos v. Morton Grove.
Other courts conducted a much more searching inquiry, and struck down laws which did not genuinely and realistically promote public safety, or which "unreasonably" infringed the right to arms.
The Brady Center has been busy urging courts to use "reasonableness" for the Second Amendment. According to the Brady Center, every possible gun control and gun prohibition is "reasonable," except for what Heller explicitly forbade (banning all handguns in the home).
Serious judicial protection of the Second Amendment right is relatively new. Although state courts have nearly two centuries of experience in protecting state constitution arms rights, many courts have ignored the Second Amendment until recently. Similarly, from 1791 until the 1930s, most courts did almost nothing to protect First Amendment rights.
When courts got serious about the First Amendment in the 1930s, they had to work out many issues of legal doctrine. It took several decades for modern First Amendment doctrine to be clarified and mostly stabilized. A similar process for the Second Amendment is just beginning.
Whether the Second Amendment becomes a robust right, or a merely nominal one, will depend on what kind of judges rule on the cases. The development of Second Amendment doctrine could be killed in its infancy if President Obama can appoint just one more Justice to replace a Justice from the five-Justice Heller majority. Without even needing to overrule Heller, an Obama-dominated Court could declare that Brady "reasonableness" is the rule for all Second Amendment cases. Justice Stephen Breyer has already urged such a similar standard, which he describes as "interest-balancing." He fell just one vote short in Heller of a "reasonableness" standard that would have authorized handgun prohibition. In a second Obama term, Breyer/Brady's unreasonable "reasonableness" could become the law of the land.

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Defendants Abitibi-Consolidated Inc. ("Abitibi") and Bowater Incorporated ("Bowater") entered into a merger agreement, dated January 29, 2007, pursuant to which Defendants would merge to create a new company, AbitibiBowater Inc. The United States filed a civil antitrust complaint on October 23, 2007, seeking to enjoin the proposed merger. The Complaint alleges that the likely effect of the merger would be to lessen competition substantially in the production and distribution of newsprint in North America in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18. This loss of competition likely would result in higher newsprint prices in the United States. At the same time the Complaint was filed, the United States also filed an Asset Preservation Stipulation and Order ("Stipulation") and a proposed Final Judgment, which are designed to eliminate the anticompetitive effects of the merger.
Under the proposed Final Judgment, which is explained more fully in Section III, Defendants are required to divest Abitibi's Snowflake, Arizona, newsprint mill, which has approximately 375,000 metric tonnes of newsprint manufacturing capacity. Until the mill is sold and operated under the new ownership, Defendants must take certain steps to ensure that the mill and its accompanying assets, as defined in the proposed Final Judgment (hereafter, the "Divestiture Assets"), are operated as ongoing, economically viable, and competitive assets.
Abitibi and Bowater both produce, distribute, and sell newsprint and other groundwood paper throughout the world. Defendants also produce other pulp and wood-related products, operate sawmills, and own or lease timberlands throughout the United States and Canada.
Abitibi is a Canadian company with its headquarters in Montréal, Quebec, Canada. In 2006, Abitibi reported total sales of approximately $4.85 billion. Its North American newsprint sales were approximately $1.7 billion. Abitibi is the largest newsprint producer in North America. It owns approximately 25 percent of North American capacity.
Bowater is incorporated in Delaware, and has its headquarters in Greenville, South Carolina. In 2006, Bowater reported total sales of approximately $3.53 billion. Its North American newsprint sales were approximately $1.1 billion. Bowater is the second largest newsprint producer in North America. It owns approximately 16 percent of North American capacity.
Defendants publicly announced their proposed transaction on January 29, 2007. The new company, AbitibiBowater Inc., will be headquartered in Montréal, Quebec, Canada, but it will be incorporated in Delaware and listed on both the NYSE and Toronto stock exchanges.
Newspaper publishers, who buy more than 80 percent of all newsprint sold in the United States, have no close substitutes to use for printing newspapers because of newsprint's price and physical characteristics, such as its strength and opacity. In addition, because publishers' newsprint presses are optimized to use newsprint, switching to another grade of paper would be costly.
Newsprint used for other purposes, primarily the production of direct mail and newspaper inserts, constitutes only a small share of total newsprint sales. If newsprint prices were to increase by a small but significant amount, some customers for these other uses might switch to other grades of groundwood paper or otherwise reduce their consumption of newsprint. Those losses, however, would not be sufficient to make such a price increase unprofitable.(2) For these reasons, demand for newsprint is highly inelastic to changes in price. Accordingly, the production, distribution, and sale of newsprint is a line of commerce and a relevant product market.
The Complaint alleges that the relevant geographic market is no smaller than the United States and Canada ("North America").(3) Newsprint can be transported within the United States and Canada at a sufficiently low cost and in such a timely and reliable manner that an attempt to increase price in any smaller region of the United States or North America would prove unprofitable. In the event of such an attempted price increase, customers could readily and economically shift their purchases to newsprint producers throughout North America. In addition, national newspaper buying groups, which account for over 70 percent of all newsprint purchases throughout the United States, create a North American pricing structure. Price differences across regions within the United States have been small and short-lived, as supply has shifted rapidly to restore parity marketwide.
The Complaint also alleges that the relevant geographic market is no broader than North America. Newsprint mills located in Canada and the United States account for approximately 98 percent of North American newsprint consumption. Transportation costs of importing newsprint are high, and customers are concerned about the reliability of foreign newsprint supply. Consequently, a small but significant increase in the price of newsprint will not likely cause customers to purchase sufficient volumes of additional newsprint from outside North America to make such a price increase unprofitable. Accordingly, North America is a relevant geographic market.
North American newsprint demand has declined over the last several years at a rate of approximately 5 to 10 percent per year because of a significant decline in demand for newspapers. As a result, North American newsprint producers have closed or idled capacity and converted some of their newsprint machines to produce other grades of paper. This decline in demand for newsprint is projected to continue, and the resulting excess newsprint capacity likely will lead Defendants and their competitors to close, idle, or convert more newsprint mills.
But for the merger, neither Defendant acting alone would be of sufficient size to profitably increase the price of newsprint by reducing its own output through strategically closing, idling, or converting its capacity.
The combination enhances Defendants' incentives to exercise market power because the merged firm will control a greater base of capacity over which the merged firm would benefit from an increase in newsprint prices after strategically closing, idling, or converting some of its capacity. Without Snowflake's capacity, the merged firm would not be of sufficient size to be able to recoup the losses from such strategic closures through increases in prices on its remaining newsprint production. The divestiture of Snowflake would adequately address the likelihood that the proposed merger substantially would reduce competition for newsprint in the United States.
Neither the combined firm's North American producers, nor competitors from outside of the North American market, can, individually or collectively, increase their newsprint sales to North American customers to make a price increase by the merged firm unprofitable. Entry by a new competitor would not be timely, likely, or sufficient to defeat an exercise of market power by the merged firm. The merged firm will therefore have both the incentive and the ability to impose an anticompetitive price increase.
While North American newsprint competitors currently have some limited excess capacity, that capacity will be reduced by the closure or conversion of unprofitable newsprint mills or machines in response to falling demand for newsprint. Once this capacity exits the market, the merged firm then will be able profitably to exercise market power.
North American newsprint competitors would not defeat an anticompetitive price increase by restarting their closed or idled capacity. The increased revenue from restarting a closed mill or machine would not outweigh the start-up costs, particularly in a declining market.
North American producers with the capacity to make higher-grade groundwood paper are not likely to switch production from those grades into newsprint production in response to a price increase. Declining demand for newsprint has caused several producers to invest substantial capital to convert newsprint machines to produce more profitable value-added grades of paper. These producers would not find it profitable to switch from producing higher grades back to newsprint to defeat an exercise of market power by the merged firm.
Some North American producers export a portion of their newsprint capacity. Some of these newsprint exports likely would be directed back to the North American market in response to a price increase. However, this repatriation of newsprint will be insufficient, even in combination with other competitive responses, to discipline an exercise of market power by the combined firm. Abitibi and Bowater collectively produce 65 percent of North American newsprint exports, and would have no incentive to repatriate their exports to defeat a price increase. In addition, most of the remaining exports by North American producers are sold pursuant to long-term sales arrangements and relationships and, therefore, are unlikely to be repatriated in response to a price increase.
Greenfield entry is highly unlikely. A new North American newsprint mill or machine would cost in excess of a hundred million dollars. Particularly given that demand for newsprint is declining in North America, a new entrant would not find it profitable to build a new newsprint mill in response to a price increase, and could not do so within two years.
Accordingly, expansion, repatriation, and entry would not be timely, likely, or sufficient to deter an anticompetitive price increase by the merged firm.
The proposed Final Judgment provides for the divestiture of Abitibi's Snowflake, Arizona, newsprint mill to a buyer acceptable to the United States, in its sole discretion, to preserve competition for newsprint in the United States. Snowflake is located in northeastern Arizona. In 2006, Snowflake produced over 330,000 metric tonnes of newsprint on two machines. Snowflake is one of the most efficient and profitable newsprint mills in North America. Plans to improve the Snowflake mill's efficiency in coming years with investments in energy and machinery are already underway. Snowflake's size and cost position ensure that its divestiture to a competitor of the merged firm will preserve competition in the North American newsprint market.
As part of its investigation, the United States considered market shares, costs of production, the extent of industry excess capacity, and future reductions in newsprint demand in analyzing whether the merger would cause an anticompetitive increase in newsprint prices. As discussed in Section II.B.3, if Defendants were allowed to merge without a divestiture, the merged firm would be able to close its capacity strategically, allowing the merged firm to raise newsprint prices and recoup its lost profits on its combined output. Divesting Snowflake, however, will reduce the capacity over which the merged firm could profit to a level at which it would not have the ability to close capacity strategically.
Snowflake uses 100 percent recycled fiber and Abitibi currently supplies the Snowflake mill with approximately 25 to 30 percent of its fiber requirements. At the option of the Acquirer, the proposed Final Judgment requires Defendants to enter into a supply contract for up to 25 percent of Snowflake's old newsprint requirements at the prevailing market price for up to three years from the date of the divestiture. Similarly, at the option of the Acquirer, and upon the approval of the United States, the proposed Final Judgment also requires Defendants to provide certain transition services for up to twelve (12) months as part of the divestiture.
In merger cases where the United States seeks a divestiture remedy, it requires completion of the divestiture within the shortest time period reasonable under the circumstances. Section IV of the proposed Final Judgment requires Defendants to complete the divestiture within 120 days after the filing of the Complaint in this matter. The assets must be divested in such a way as to satisfy the United States in its sole discretion that the operations can and will be operated by the purchaser as a viable, ongoing business that can compete effectively in the relevant market. The United States, in its sole discretion, may grant one or more extensions of time, not to exceed sixty (60) calendar days in total. Defendants must use their best efforts to accomplish the divestiture as expeditiously as possible.
If Defendants do not accomplish the divestiture within the period prescribed in the proposed Final Judgment, a trustee shall be appointed by the Court upon the application of the United States. If a trustee is appointed, the proposed Final Judgment provides that Defendants will pay all costs and expenses of the trustee. The trustee's commission will be structured so as to provide an incentive for the trustee based on the price obtained and the speed with which the divestiture is accomplished. After his or her appointment becomes effective, the trustee will file monthly reports with the Court and the United States setting forth his or her efforts to accomplish the divestiture. If the divestiture has not been accomplished at the end of the six months, the trustee and the United States will make recommendations to the Court, which shall enter such orders as appropriate in order to carry out the purpose of the trust, including extending the trust or the term of the trustee's appointment.
Finally, the proposed Final Judgment sets forth the process for and the circumstances when Defendants must notify the United States of the acquisition of any mill or machine or any interest in a mill or machine, if the value of such exceeds $2,000,000, that is currently jointly-owned by either Abitibi or Bowater with any third party. This notification requirement applies to certain transactions not otherwise subject to the reporting and waiting period requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and runs for ten years from entry of the Final Judgment. The provision is intended to ensure that any such acquisition does not undermine the benefits that the divestiture of the Snowflake mill will bring to the market.
Section 4 of the Clayton Act, 15 U.S.C. § 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. § 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against the defendants.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty days of the date of publication of this Competitive Impact Statement in the Federal Register. All comments received during this period will be considered by the Department of Justice, which remains free to withdraw its consent to the proposed Final Judgment at any time prior to the Court's entry of judgment. The comments and the response of the United States will be filed with the Court and published in the Federal Register.
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against Defendants. The United States could have continued the investigation and sought preliminary and permanent injunctions against Abitibi and Bowater's proposed merger. The United States is satisfied, however, that the divestiture of assets described in the proposed Final Judgment will preserve competition in the market identified by the United States and that such a remedy would achieve all or substantially all of the relief the United States would have obtained through litigation, but avoids the time, uncertainty, and expense of a trial.
In developing this relief, the United States considered a number of divestiture alternatives and determined that the divestiture of the Snowflake mill, under the circumstances, was the best solution given the size and efficiency of the Snowflake mill. The analysis conducted by the United States indicates that the Snowflake mill is among the largest and most profitable mills in the United States. The location of the mill to be divested is not competitively significant because the evidence does not support the conclusion that the relevant geographic market is narrower than North America.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).(6) In making its public interest determination, a district court "must accord deference to the government's predictions about the efficacy of its remedies, and may not require that the remedies perfectly match the alleged violations because this may only reflect underlying weakness in the government's case or concessions made during negotiation." SBC Commc'ns, 489 F. Supp. 2d at 17; see also Microsoft, 56 F.3d at 1461 (noting the need for courts to be "deferential to the government's predictions as to the effect of the proposed remedies");United States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (noting that the court should grant due respect to the United States' prediction as to the effect of proposed remedies, its perception of the market structure, and its views of the nature of the case).
Moreover, the Court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the Court to "construct [its] own hypothetical case and then evaluate the decree against that case." Microsoft, 56 F.3d at 1459. Because the "court's authority to review the decree depends entirely on the government's exercising its prosecutorial discretion by bringing a case in the first place," it follows that "the court is only authorized to review the decree itself," and not to "effectively redraft the complaint" to inquire into other matters that the United States did not pursue. Id. at 1459-60. As this Court recently confirmed in SBC Commc'ns, courts "cannot look beyond the complaint in making the public interest determination unless the complaint is drafted so narrowly as to make a mockery of judicial power." SBC Commc'ns, 489 F. Supp. 2d at 15.
1. There are two primary newsprint basis weights, 30 pound (48.8 gsm) and 27.7 pound (45 gsm), the lighter of which has a higher yield. The differences between the two weights are not material to product market definition because prices for each basis weight track each other, newspaper publishers can use either weight in their presses, and newsprint manufacturers can produce either weight on the same newsprint machines without incurring switching costs.
2. Defendants also produce higher-grade groundwood paper and would be able to recapture some of the revenue lost from newsprint in these other groundwood grades.
3. The United States did not fully investigate whether Mexico should be included in the North American market because the inclusion or exclusion of Mexico does not change the analysis. Mexico is not a significant producer of newsprint, it does not export significant amounts of newsprint to the United States, and the industry does not consider Mexico to be part of the North American market.
4. The 40 percent market share represents the merged firm's newsprint capacity over which it would be able to profit from an anticompetitive price increase. This share does not include approximately nine percent of North American newsprint capacity attributable to Abitibi and Bowater through joint-venture relationships and a sales management contract. This volume is not relevant to the competitive effects analysis because, under the structure of these arrangements, Defendants would not be able to benefit from a price increase on this capacity.
5. The 2004 amendments substituted "shall" for "may" in directing relevant factors for court to consider and amended the list of factors to focus on competitive considerations and to address potentially ambiguous judgment terms. Compare 15 U.S.C. § 16(e) (2004), with 15 U.S.C. § 16(e)(1) (2006).
6. Cf. BNS, 858 F.2d at 464 (holding that the court's "ultimate authority under the [APPA] is limited to approving or disapproving the consent decree"); United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the court is constrained to "look at the overall picture not hypercritically, nor with a microscope, but with an artist's reducing glass"). See generally Microsoft, 56 F.3d at 1461 (discussing whether "the remedies [obtained in the decree are] so inconsonant with the allegations charged as to fall outside of the 'reaches of the public interest'").
7. See United States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000) (noting that the "Tunney Act expressly allows the court to make its public interest determination on the basis of the competitive impact statement and response to comments alone"); S. Rep. No. 93-298, 93d Cong., 1st Sess., at 6 (1973) ("Where the public interest can be meaningfully evaluated simply on the basis of briefs and oral arguments, that is the approach that should be utilized."); United States v. Mid-Am. Dairymen, Inc., 1977-1 Trade Cas. (CCH) ¶ 61,508, at 71,980 (W.D. Mo. 1977) ("Absent a showing of corrupt failure of the government to discharge its duty, the Court, in making its public interest finding, should . . . carefully consider the explanations of the government in the competitive impact statement and its responses to comments in order to determine whether those explanations are reasonable under the circumstances.").


Investors and those representing them go to great lengths to maximize the value of their deals in § 363 asset purchases. But if they’re not careful, they could easily find themselves in the following auction scenario, where a little ambiguity jeopardizes significant value that a “stalking horse” bidder thought it had already negotiated.
Over the past several years, financially distressed companies have increasingly used bankruptcy as the preferred method to sell significant assets or entire businesses.
Pepper Hamilton LLP; Wilmington, Del.
Similar to domestic bankruptcy cases, in chapter 15 cases the sale or disposition of property located in the U.S.
Editor’s Note: The following article, “Spanish Peaks’ Reinvigoration of the Precision Industries Debate: Rejection in the Context of a § 363 Sale Free and Clear of Commercial Leasehold Interests” won the prize for third place in the Tenth Annual ABI Bankruptcy Law Student Writing Competition. Mr.
This article examines certain key provisions in asset-purchase agreements that practitioners will want to pay attention to when purchasing assets in bankruptcy sales.
A recent decision from the U.S. Bankruptcy Court for the District of Montana highlights the limits of the term “interests” under § 363(f) of the Bankruptcy Code and the limits of “good faith” under § 363(m). In In re Mountain Divide LLC, Case No. 16-61015-11 (Bankr. D. Mont.
Federal policy weighs heavily in favor of protecting the finality of sale orders in bankruptcy. “It has been held that 11 U.S.C.
Mazur Kraemer Business Law; Pittsburgh and Weirton, W.Va.
On Feb. 21, 2018, the U.S. Bankruptcy Court for the District of Delaware issued its opinion in Stanley Jacobs Prod. Ltd. v. 9472541 Can. Inc. (In re Thane Int'l Inc.). The issue was whether an executory contract that was neither affirmatively assumed nor rejected was assumed and assigned in a § 363 sale transaction.
Orders approving the sale of assets in bankruptcy provide the required authorization for the disposition of estate property outside of the ordinary course of the debtor’s business.
The Asset Sales Committee hosted a conference call discussing the GM successor liability decision now on appeal in the Second Circuit. John Hutton (Greenberg Traurig LLP; Miami) and Henry Jaffe (Pepper Hamilton LLP; Wilmington) led a conference call discussing the issues raised and being briefed before the Second Circuit in the GM successor liability appeal.
The Asset Sales Committee will host John Hutton and Henry Jaffe as they discuss the GM successor liability decision, now on appeal in the Second Circuit, describing the arguments and positions taken by different parties on key issues in the case and discussing the potential impact of the ruling on appeal.
The October 2nd conference call for ABI's Asset Sales Committee provided a brief overview of the Fisker Automotive opinions, as well as their progeny, including Free-Lance Star. The discussion also explored the practical implications of those decisions for practitioners representing different constituents in a restructuring. The call was led by Oscar N. Pinkas of Dentons US LLP in New York, and Justin F. Paget of Hunton & Williams LLP in Richmond, Virginia.
Mr. James Robert Irving, Esq.
ANNUAL SPRING MEETING REGISTRATION OPEN NOW!
Join the Asset Sales Committee at ABI's Annual Spring Meeting, one of the biggest insolvency events of the year! Mix professional development and networking at a variety of timely educational sessions, networking events, and optional programs — all in the heart of Washington, D.C.
Click here for more information on the resources that are available to you as a member of the Asset Sales Committee.


USA v. Josue L. Feliciano, 06-3423. Josue Feliciano’s appeal focuses on the district court’s reliance for purposes of a federal sentence on an earlier misdemeanor conviction he received in Florida, in a case where he proceeded without counsel.
Feliciano was before the federal court on charges of distributing methamphetamine in Wisconsin, in violation of 21 U.S.C. § 841(a)(1). He pleaded guilty to those charges. At his sentencing hearing, he objected to the part of the pre-sentence report that recommended use of the Florida conviction in calculating his criminal history for purposes of the federal Sentencing Guidelines. The district court overruled that objection, finding that Feliciano had no constitutional right to counsel under the circumstances presented there.
The government concedes that this finding was erroneous, but it argues that the record supports a finding that Feliciano waived his right to counsel in the Florida proceeding and urges us to affirm his 55-month prison sentence on that basis.
At arraignment, the judge advised Feliciano about the offense with which he was charged and that he was facing up to a year of prison, up to a year of probation, and a fine of up to $1000. The judge also told him that he had the right to be represented by a lawyer and that one would be appointed for him if he could not afford one.
Feliciano confirmed that he understood that he had the right to counsel. Feliciano indicated that he wished to enter his plea without the assistance of counsel, and he said that he had read and understood everything on the written plea form and the form for waiving counsel. He also signed the written waiver form, which said "I hereby waive my right to consult an attorney or to have an attorney appointed." The judge then asked him how he wished to plead, to which he responded "Guilty."
The judge also assured Feliciano that he would not impose any jail sentence for a plea of guilty, and that if the judge did so, he would give Feliciano an opportunity to change his plea. After granting this assurance, the judge then asked Feliciano if he had read and understood everything contained in the plea form and waiver form, and wished to enter a plea without representation. Feliciano responded "Yes."
The judge next examined the voluntariness of Feliciano’s plea in the standard manner. The judge again asked him how he wished to plead, and he again answered, "Guilty." The judge accepted his plea.
The Supreme Court has held that because a conviction obtained in violation of the Sixth Amendment is "void," it would undermine the fundamental principles of Gideon v. Wainwright, 372 U.S. 335 (1963), to enhance a sentence with an invalid conviction and thereby further restrict the defendant’s liberty. Custis v. United States, 511 U.S. 485, 494-95 (1994); see Johnson v. United States, 544 U.S. 295, 303 (2005). For purposes of the Sentencing Guidelines, if the defendant proves that a Sixth Amendment violation occurred, the prior conviction cannot be counted in his criminal history score. See 21 U.S.C. § 851(c)(2). He is thus entitled to raise his argument about the Florida proceeding now, for that limited purpose.
The government concedes that Feliciano had this right, and our independent examination of the issue shows that it is correct to do so.
The Supreme Court has held that, absent a knowing and intelligent waiver, no person may be imprisoned for any length of time, regardless of the classification of the person’s offense, unless that person was represented by counsel. Glover v. United States, 531 U.S. 198, 203 (2001); Scott v. Illinois, 440 U.S. 367, 373-74 (1979); Argersinger v. Hamlin, 407 U.S. 25, 31, 37 (1972).
By contrast, when a defendant is convicted without the assistance of counsel but is not sentenced to a period of incarceration, there is no Sixth Amendment violation and thus that conviction may be considered in subsequent sentencing proceedings. Nichols v. United States, 511 U.S. 738, 748-49 (1994). Accordingly, Feliciano had a right to counsel in the Florida case if the right to counsel applies to a sentence of imprisonment that is satisfied by time already served before conviction.
This court’s decision in United States v. Staples, 202 F.3d 992, 997 (7th Cir. 2000), supports his argument, though the case is not directly on point.
Since Feliciano did have a right to counsel, we must finally consider whether he waived that right.
The Supreme Court has held that waiver of the right to counsel must be knowing, voluntary, and intelligent. Iowa v. Tovar, 541 U.S. 77, 81, 88 (2004). The accused does not need to appreciate all the consequences flowing from his choice, but he or she must understand the nature of the right and how it would apply in general under the circumstances. Tovar, 541 U.S. at 92. In the context of a guilty plea, a trial court must inform a defendant "of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Tovar, 541 U.S. at 81; Speights v. Frank, 361 F.3d 962, 964-65 (7th Cir. 2004) ("It is enough, Tovar held, if the accused knows of his right to counsel and the plea itself is voluntary.").
Feliciano had a right to counsel in the Florida proceedings, but we conclude that he waived it. We therefore AFFIRM the judgment of the district court.


In the United States Court of Appeals For the Seventh Circuit No. 16-3509 FREDDIE CAMACHO, Petitioner-Appellant, v. NICOLE ENGLISH, Warden, Respondent-Appellee. Appeal from the United States District Court for the Western District of Wisconsin. No. 3:15-cv-00388-jdp — James D. Peterson, Chief Judge. ARGUED MAY 23, 2017 — DECIDED AUGUST 22, 2017 Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges. BAUER, Circuit Judge. Petitioner-appellant Freddie Camacho, a federal prisoner incarcerated in Oxford, Wisconsin, appeals the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. He argues that he may pursue relief under § 2241 because 28 U.S.C. § 2255 is an inadequate or ineffective remedy. 2 No. 16-3509 I. BACKGROUND In 1998, Camacho was convicted by a jury in the Southern District of Texas of kidnapping, in violation of 18 U.S.C. § 1201(a). The kidnapping victim was later found dead. Section 1201(a) includes a provision stating that the commission of a kidnapping “shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.” The district court sentenced Camacho to life imprisonment under U.S.S.G. § 2A4.1(c), which cross-references the Sentencing Guidelines for murder, and to five years of supervised release. The Fifth Circuit affirmed his conviction and sentence. Camacho filed a petition for writ of certiorari to the United States Supreme Court, which was denied on June 1, 1999. Camacho filed a § 2255 petition on July 31, 2002, arguing that because murder was not charged, submitted to the jury, or proven beyond a reasonable doubt, his due process rights were violated, and the court lacked authority to impose a life sentence. On September 29, 2003, the district court denied the motion and declined to issue a certificate of appealability. The Fifth Circuit also declined to issue a certificate of appealability. On June 24, 2014, Camacho sought leave to file a successive § 2255 motion, relying upon Alleyne v. United States, 133 S. Ct. 2151 (2013) and Burrage v. United States, 134 S. Ct. 881 (2014), to argue that his life sentence was unconstitutional. The Fifth Circuit denied his motion on August 19, 2014. On June 24, 2015, Camacho filed a § 2241 petition in the Western District of Wisconsin. He again argued that under Burrage his life sentence was unlawful because the jury was not asked to deter- No. 16-3509 3 mine whether Camacho’s conduct caused the death of the victim. The district court denied the petition on September 12, 2016, finding: (1) Burrage did not apply to Camacho’s case; and (2) the petition did not meet the criteria for collateral review under In re Davenport, 147 F.3d 605 (7th Cir. 1998). Camacho filed a notice of appeal and a motion for reconsideration on September 23, 2016, but withdrew this motion. This appeal followed. II. DISCUSSION We review de novo a district court’s denial of relief under § 2241. Hill v. Werlinger, 695 F.3d 644, 647 (7th Cir. 2012). Federal prisoners who seek to collaterally attack their conviction or sentence must ordinarily bring an action under § 2255, “the federal prisoner’s substitute for habeas corpus.” Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012). However, a federal prisoner may petition under § 2241 “if his section 2255 remedy ‘is inadequate or ineffective to test the legality of his detention.’” Id. (quoting 28 U.S.C. § 2255(e), the “Savings Clause”). “This generally requires a structural problem in § 2255 that forecloses even one round of effective collateral review, unrelated to the petitioner’s own mistakes.” Poe v. LaRiva, 834 F.3d 770, 772 (7th Cir. 2016) (citation, quotation marks, and alteration omitted). As established in Davenport, a petitioner who seeks to invoke the Savings Clause of § 2255(e) to proceed under § 2241 must demonstrate: (1) that he relies on “not a constitutional case, but a statutory-interpretation case, so [that he] could not have invoked it by means of a second or successive section 2255 motion;” (2) that the new rule applies retroactively 4 No. 16-3509 to cases on collateral review and could not have been invoked in his earlier proceeding; and (3) that the error is “grave enough … to be deemed a miscarriage of justice corrigible therefore in a habeas corpus proceeding,” such as one resulting in “a conviction for a crime of which he was innocent.” Brown, 696 F.3d at 640; see also Davenport, 147 F.3d at 610–12. Camacho argues that his § 2241 petition satisfies the criteria for collateral review in Davenport and that Burrage applies equally to the “death results” language in 18 U.S.C. § 1201(a). The central issue in Burrage was whether a defendant may be sentenced under the enhanced penalty provision of 21 U.S.C. § 841(b)(1)(C) (a 20-year mandatory minimum sentence where “death results” from the use of an unlawfully distributed drug), if the use of the drug “contributes to, but is not a but-for cause of, the victim’s death.” 134 S. Ct. at 885. The court concluded that “but-for” causation is required in order for the enhanced penalty to apply. Id. at 892. In reaching its holding on the “death results” sentence enhancement, the Burrage court noted that the crime at issue contained two elements: (1) knowing or intentional distribution of the controlled substance under § 841(a)(1); and (2) death resulting from the use of the drug under § 841(b)(1)(C). Id. at 887. The court reasoned that both elements must be found by a jury beyond a reasonable doubt, consistent with Alleyne and Apprendi v. New Jersey, 530 U.S. 466 (2000). Id. Camacho contends that his life sentence is in violation of Burrage because the judge rather than the jury made the “death results” determination in 18 U.S.C. § 1201(a), and but-for causation was not established. No. 16-3509 5 As an initial matter, we note that Burrage is a statutoryinterpretation case. Furthermore, we have found that it is a substantive decision that narrows the scope a federal criminal statute, and therefore applies retroactively to cases on collateral review. Krieger v. United States, 842 F.3d 490, 497–500 (7th Cir. 2016); see also Prevatte v. Merlak, No. 15-2378, ---F.3d---, 2017 WL 3262282 at *4 (7th Cir. Aug. 1, 2017). Nevertheless, these findings cannot save Camacho’s § 2241 petition, as Burrage is inapplicable here. First, we address Camacho’s claim that the district judge rather than the jury made the “death results” determination in violation of Burrage. As the district court recognized, the concept that a jury must decide any fact that increases the minimum and maximum sentences flows from Apprendi and Alleyne; Burrage merely applied it to the Controlled Substances Act. In fact, the Burrage court specifically relied on both Apprendi and Alleyne in finding that because the “death results” enhancement increased the minimum and maximum sentences, it must be submitted to the jury and found beyond a reasonable doubt. See 134 S. Ct. at 887. In Krieger, we observed that “[t]he Burrage holding is not about who decides a given question (judge or jury) or what the burden of proof is (preponderance versus proof beyond a reasonable doubt). It is rather about what must be proved.” 842 F.3d at 499–500. Because neither Alleyne nor Apprendi has been found to be retroactive on collateral review, Camacho may not advance this claim in his § 2241 petition. See Crayton v. United States, 799 F.3d 623, 624–25 (7th Cir. 2015); Curtis v. United States, 294 F.3d 841, 842 (7th Cir. 2002); see also Poe, 834 F.3d at 773 (Alleyne is a constitutional case). 6 No. 16-3509 Moving to Camacho’s second claim, we are not persuaded that Burrage’s “but- for” causation requirement applies to 18 U.S.C. § 1201(a). In Burrage, the victim had taken a number of different drugs in addition to heroin that the defendant sold to him. The salient issue was whether the victim’s death “result[ed] from the use of” the heroin sold to him by the defendant. 134 S. Ct. at 886. The Burrage court limited its holding, finding that “at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death … a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of death … .” Id. at 892. In contrast, § 1201(a)’s enhancement provision requires simply that “the death of any person results[;]” the specific cause of death is immaterial. Therefore, but-for causation is incompatible with the statutory goal of § 1201(a). Moreover, Camacho was not sentenced pursuant to the “death results” provision in 18 U.S.C. § 1201(a); he was sentenced pursuant to the cross-reference provision for murder contained in U.S.S.G. § 2A4.1(c). This provision does not contain the “death results” language at issue in Burrage. Therefore, we agree with the district court that Burrage is not applicable to Camacho’s § 2241 petition. Camacho’s attempt to shoehorn his claims under Burrage are unsuccessful, and he has not demonstrated that he is relying on a statutory-interpretation case that applies retroactively on collateral review. Thus, his § 2241 petition fails to meet the first two Davenport factors. In addition, Camacho has not established that any sentencing error occurred, let alone one that was a “miscarriage of justice,” and so he has failed to No. 16-3509 7 meet the third Davenport factor. Camacho has not shown that his § 2255 remedy was “inadequate or ineffective[;]” thus, his § 2241 petition is denied. III. CONCLUSION The district court’s denial of Camacho’s petition for a writ of habeas corpus is AFFIRMED.


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The author investigates the personal nature of innovative activities, the modern paradigm of innovative business. On the basis of the results of the three presented researches the author represents his own position on personal, individualistic properties of innovative potential, applies the theses of J.Schumpeters concerning modern development of industrial forces and relations in institutional economy.
Viktor I. Abramov, PhD in Physical and Mathematical Sciences, competitor for Samara State University of Economics.
The publication presents the results of scientific and theoretical studies of the phenomenon of innovation potential. The article also deals with the proposed study of process, personal paradigm of innovation potential as an economic category, as well as a cognitive map, which expresses its components. The author considers an innovative method for estimating the potential of the project.
Viktor I. Abramov, PhD in Physical and Mathematical Sciences, competitor; Sergey G. Vagin, Doctor of Economics, Professor, First Vice-Rector in Business Education and Special Projects. – Samara State University of Economics.
The article deals with the issues of human influence on the state of economics in the country. The methods of efficiency increase of labor resources usage on enterprises are detected. The enterprises’ personnel, their ethical potential, preparation to the concrete aim achievement are able to maintain and increase the economic growth rate.
Valentina V. Agafonova, Doctor of Economics, Professor of Samara State University of Economics; Galina B. Sviridova, senior lecturer of Samara State Aerospace University (National Research Institute).
In the article the author investigates the need of the industrial enterprises in innovations development in the oil and gas sphere. Moreover, the article deals with the ways of requirements satisfaction through the technologies transfer system development.
Evgeniy V. Astafiev, competitor for Samara State University of Economics.
The history of folk artistic craft goods market goes back to the ancient times. Folk artistic craft of Republic of Tatarstan were developing under the influence of various cultures and historic events uniting in itself creative ideas of artist from Asia, Europe and Asia. Each epoch left its mark to the development of folk artistic crafts of the region. The most vivid cultural growth can be traced during the periods of the Kazan khanate and the Golden Horde.
Rezeda G. Akhmetshina, competitor for Kazan Volga Region Federal University.
The article deals with studying the industrial production of the region, the analysis indexes of industrial production, the state policy in the field.
Olesia O. Bekmansurova, competitor for Samara State University of Economics., Pavel P. Shutov, competitor for Samara State University of Economics.
The article deals with the basic principles of data processing in warehouse of intellectual informational system for assistance in taking decisions for the management of economic entities.
Ekaterina Yu. Vinogradova, PhD, associate professor, Ural State University of Economics. Yekaterinburg.
The article deals with the nature and content of the organizational-economic mechanism. The methodical approach of the innovative development of the sphere of municipal services on the example of the municipal district is justified. The basic trends of implementation of the model suggested by the author are reflected in the article.
Vladimir S. Garmashov, competitor for Research Institute of Wholesale Market Merchandising and Conjecture, Moscow.
Viktor I. Drovyannikov, Doctor of Economics, Vice-rector in Teaching and Educational Process; Irina N. Khaimovich, Doctor of Technical Sciences, Professor. - International Market Institute, Samara.
Irina V. Zinovyeva, a post-graduate student of Samara State Aerospace University named after S.P.Korolev (National Research University).
The necessity economics structural diversification in the Russian Federation on the basis of innovative technological development is justified. The intensity of branch competitiveness and investment resources availability are considered to be the determining factors of enterprise innovative development.
Elena A. Kandrashina, Doctor of Economics, professor; Aleksandra A. Chudaeva, PhD in Economics, senior lecturer. - Samara State University of Economics.
The article deals with the insurance market on its modern stage of development. The analysis of insurance premium is carried out by means of new indices development of insurance market.
Daria E. Kovrigina, a post-graduate student of Samara State University of Economics.
Nowadays, due diligence is becoming more and more popular. Actually, it’s a kind of service that presupposes the carrying out comprehensive analysis of enterprise activities, including entrepreneurship risks. The article deals with the notion and content of due diligence. The analysis of risk of demand absence is implemented.
Nadezhda V. Kostina, a post-graduate student of Pskov State University.
The article deals with the category of rent as a form of ownership economic implementation. The special features of processes of moulding actual and fictitious value forms and various types of rent.
Larisa V. Levchenko, PhD in Economics, associate professor; Olga Yu. Kuzmina, PhD in Economics, senior lecturer. - Samara State University of Economics.
In this article the author presented the review of innovative development, stages of an innovative cycle, regularities of interrelation and sociogenetic characteristics.
Dmitriy A. Nekrasov, a post-graduate student of Samara State University of Economics.
The article deals with the principal approaches formed in national and foreign science to the real estate analysis. The notion of local estate market, aims and trends in its investigation are described; advantages and disadvantages of various methodological approaches are revealed taking into account the modern state of real estate market; the necessity in the local real estate market from the perspective of evolutionary-institutional approach is determined in the article.
Ksenia G. Nikolaeva, a post-graduate student of Samara State University of Economics.
The article deals with the place and functions of board of directors in the process of taking strategic decisions. The board directors’ role within the interaction with corporation’s top management concerning the issues of strategic management is estimated.
Dmitriy V. Ovodenko, competitor for Samara State University of Economics.
The article deals with the essence and formation of the population’s welfare as well as the influence on it of such factors as culture, national peculiarities. Their influence and structure on the level of welfare is analyzed. The necessity of taking into consideration the society’s customs and traditions within the analysis of national welfare is revealed and justified. The results of investigations of resources and level of savings of population as indices of population’s welfare are provided in the article.
Galina A. Reznik, Doctor of Economic Sciences, Professor; Ilya V. Akifyev, Ph.D., assistant professor. - Penza State University of Architecture and Construction.
Possibility application of a process approach is considered at the organization of management accounting of export activity of the enterprise. Additional requirements to creation of reporting data on export operations are offered from management accounting. The generalized system of data for adoption of administrative decisions at implementation of export operations is given in a cut of the centers of responsibility.
Olga A. Rybalko, PhD in Economics, associate professor of Perm Agriculture Academy.
In modern market conditions the enterprise requires the most careful development of strategy, as well as the plan of its implementation. The balanced indices system helps a management of the enterprises and the organizations properly and correctly to build system of strategic management of the company, as well as to reach objects in view, involving in process not only top-managers, but also the serving personnel. In article theoretical aspects of development of the BSC are considered in detail. Possible problems with which the company management can collide at creation and introduction of the balanced system of parameters are dealt with.
Tatyana B. Sagdeeva, a post-graduate student of Samara State University of Economics.
The article examines the impact of globalization on the development of market consumer services. It estimates sales process of consumer services through the Internet - services conclusions are made about the efficiency of bulk purchases services.
Nikolay A. Sidorov, a post-graduate student; Aleksandr A. Grafov, PhD in Economics, senior lecturer, Saint Petersburg State University of Service and Economics.
The article deals with the system of economic indices reflecting stabilization processes in the Russian economics. The stability of temporal series of the given indices is investigated. Typological groups of economic indices according to the criteria of stability are singled out. The econometric model of economic indices interconnection is developed in the article.
Elena I. Sukhanova, PhD in Economics, associate professor; Svetlana Yu. Shurnaeva, senior lecturer. - Samara State University of Economics.
The article deals with the understanding of mass culture as an element of society social development. The meaning of mass culture in Cartesian coordinate system is given.
Aleksandr V. Tarakanov, Samara State Aerospace University named after S.P.Korolev (National Research University).
The article deals with evolutionistic views of Peter the Great predetermined both directions of reforming of the Russian state on the boundary of XVII - XVIII century and its further historic development. The paternalistic and lawful views of the monarch as a motivational foundation of his intentions for state reformations of Russia are dealt with in the article.
Evgeniy A. Chekurda, a post-graduate student of Omsk F.M. Dostoevsky State University.

matches: V. V. V. V. V. V. V. V.


Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.
Give if applicable. § 782.02, Fla. Stat.
3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].
Insert and define applicable felony that defendant alleges victim attempted to commit.
Give if applicable. §§ 776.012, 776.031, Fla. Stat.
2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.
Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in § 776.08, Fla. Stat.
Aggressor. § 776.041, Fla. Stat.
Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.
a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.
Force in resisting a law enforcement officer § 776.051(1), Fla. Stat.
A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction.
In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
No duty to retreat. § 776.013(3), Fla. Stat. See Novak v. State 974 So. 2d 520 (Fla. 4th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.
If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.
Define applicable forcible felony from list in § 776.08, Fla. Stat. that defendant alleges victim was about to commit.
Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(2)(a)-(d), Fla. Stat.
If the defendant was in a(n)[dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.
Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla. Stat. Give as applicable.
d. the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Definitions. Give if applicable. § 776.013(5), Fla. Stat.
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
Prior threats. Give if applicable.
If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.
Reputation of victim. Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.
Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.