By Stuart Berman, Guest Contributor
In June 2019, the Supreme Court held in Rehaif v. United States, 139 S.Ct. 2191 (2019), that in federal prosecutions of illegal aliens for knowingly possessing a firearm, the government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” As expected, Rehaif was quickly applied to other categories of “prohibited persons,” including one of the most commonly-prosecuted federal crimes, “felon in possession” – knowing possession of a firearm that had moved in interstate or foreign commerce by a person previously convicted of a crime punishable by more than one year of imprisonment, under 18 U.S.C. § 922(g)(1).
The trickier issue was whether Rehaif would be applied retroactively. Read More…
Update: Maryland Court of Special Appeals, For Now, Appears to Adopt Televised “Zoom” Oral Arguments for Public, and Other Appellate Court Developments
By: Michael Wein
As a previous piece last week noted, the four (4) appellate courts potentially affecting Maryland practitioners postponed their March and/or April oral arguments, because of the coronavirus health crisis. We now have more information on what three (3) of the courts have adopted, as at least interim solutions, while retaining some flexibility of a “wait and see” approach depending on the status of the crisis in early May. Read More…
The Maryland Court of Appeals issued one additional certiorari grant on March 30, following last week’s monthly conference. The grant, with question presented, appears after the jump.
Oral Arguments Postponed Left and Right Due to Coronavirus…At Least in Maryland, How Long Should this Last?
By: Michael Wein
It began with court and jury trials being postponed throughout the State of Maryland. But the past 10 business days have seen a remarkably swift progression in the postponement of appellate oral arguments in all Maryland and related Federal Courts due to the novel coronavirus. Read More…
Following yesterday’s similar announcement by the Court of Special Appeals, the Maryland Court of Appeals today posted on its home page that MDEC filing will be optional in appeals originating in the three non-MDEC jurisdictions (Baltimore City, Montgomery County, and Prince George’s County). Read More…
Late Sunday, the Court of Special Appeals updated its home page to announce a significant change to mitigate disruptions to Maryland appellate practice during the COVID-19 emergency. The largest volume of appeals come from the three jurisdictions that have yet to transition to Maryland Electronic Courts (MDEC): Baltimore City, Montgomery County, and Prince George’s County. As a result, appeals from those three circuit courts have been paper-only.
As of March 15, however, the Court will allow filings via MDEC, as an optional alternative to paper filing, in appeals from non-MDEC jurisdictions. Read More…
A federal district court’s order granting or denying an injunction, including a preliminary injunction, is immediately appealable under 28 U.S.C. § 1292(a)(1). The appellant may move under FRAP 8 for a stay or modification of the injunction pending appeal, if the district court issued one against the appellant, or for an injunction pending appeal, if the district court denied an injunction the appellant requested.
As fast as federal district judges typically hear requests for preliminary injunctions, the Fourth Circuit often acts even faster. After litigating emergency motions in the Fourth Circuit a few times, I thought I’d pass along some pointers. Read More…
UPDATE, March 12, 2020: The previously scheduled April 1 event, “Recent Impact Decisions of the Maryland Appellate Courts” has been taken off the calendar due to COVID-19 concerns. We hope to reschedule the event and, if so, will re-post the event on the blog.
20/20 Hindsight, in the Year 2020… Do Recent Maryland Court of Appeals’ Decisions Suggest It’s Time to Permit Citations to Unreported Opinions?
By: Michael Wein
Over the past two years, there has seen pointed recognition by the Court of Appeals of Maryland, on the issue of citing to unreported Maryland opinions, which make up about 90% of the Court of Special Appeals appellate decisions. Under Maryland Rule 1-104, unreported opinions cannot be cited in our appellate or trial courts as, precedent or as persuasive authority, but otherwise may be used under very specific conditions, such as “law of the case, res judicata, or collateral estoppel.”
The present incarnation of Md. Rule 1-104 (previously under Md. Rule 8-114) is as follows.
RULE 1-104. UNREPORTED OPINIONS
(a) Not Authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.
(b) An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same defendant, or (3) in a disciplinary action involving the same respondent. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.
But this Rule puts Maryland in contrast with most other states, and the Federal Rules since at least 2007, which allow citations to unreported opinions as “persuasive” authority, when involving similar or identical legal and factual issues. Read More…