President Scott Vanderlin gaveled in the first meeting of 2023, which had 63 registrants and 27 participants attending for the The Future of History in Legal Research. One new member joined CALL -Amy Tomaszewski and Scott welcomed her.
Vice President Mandy Lee introduced Judge Chang who provided and overview of two Supreme Court cases and how they show how the role of history impacts the decisions rendered in those cases.
The Honorable Edmond E. Chang has served on the U.S. District Court for the Northern District of Illinois since January 2011. At that time, he was the youngest then-serving federal judge in the nation. He is the first Asian-Pacific American Article III federal judge in Illinois.
Before joining the judiciary, Judge Chang was an Assistant United States Attorney in Chicago. After prosecuting a wide variety of federal offenses, he was promoted to Deputy Chief of the General Crimes Section and, later, to the Chief of Appeals of the criminal division. From 1997 to 1999, Judge Chang practiced employment law at Sidley Austin.
Since 1996, Judge Chang has taught Civil Rights Litigation as an Adjunct Professor of Law at Northwestern University School of Law. Judge Chang is the author of the Civil Rights chapter in the American Bar Association Section of Litigation’s treatise on Business and Commercial Litigation in Federal Courts.
Applying Historical Precedent
As attorneys and researchers it is important to know how to research and apply history and historical precedent. Also important to know how to describe the events and relate them back to the case at hand.
Tennessee v. Garner (1985)
First case Judge Chang discussed was Tennessee vs. Garner (1985) 471 U.S. 1 – a 4th amendment case covering Memphis case that started in 1974 with a police chase which ended with the police shooting a 15 year old male who was running after committing a robbery. The police was acting in accordance with both Tennessee law and the police policy. A section 1983 claim against the police for use of deadly force. Lower court dismissed the claim. 6th Circuit reversed and said it was deadly force. The US Supreme court looked at the historical context for the use of deadly force. Looked at English law from 1736 and that indicated that deadly force was considered lawful if the suspect fled. This information was obtained from Hale’s reporters. Hale was well respected, but he was also someone who oversaw Witch Trials in England.
However law does not exist in a vacuum. Have things changed since then? Why did they standards exist? So they kept looking at other sources. One reason that deadly force was always approved for fleeing felons is that all felonies back then were capital offenses. So if caught they would have been put to death in any case. So then the court looked and analyzed do these reasons still hold? Answer is no. Most felonies at that time were not capital offenses. Also when the standard was put in place most interactions with police would have ended in hand to hand combat. So the police officer’s life was in immediate danger. In the modern day most police officers have firearms and that is why the new standard applies that deadly force cannot be used unless there is immediate danger. So the Supreme Court upheld the 6th Circuit.
In a modern day New York State Rife & Pistol Association vs Bruen (2022) 142 S.Ct 2111 in which two private individuals wanted concealed carry licenses. However, under NY state law there needed to be a specific need to show proper cause to obtain the licenses. A local official was the one to make the determination as to if there was cause. It was a may issue not a shall issue state. NY was one of 6 states that have subjective criteria. 2nd Circuit looked at this standard and did a two step analysis. First – is this conduct protected by the Second Amendment. If the conduct is protected then is the regulation a severe burden on the right. If it is a severe burden then it needs to survive strict scrutiny. The Supreme Court in Bruen held that if the Second Amendment protects the conduct then what is the historical tradition of firearms regulation in the US then they ruled it is unconstitutional.
Bruen did a long historical analysis including looking at the Heller decision and how the US right to bear firearms was inherited from the English traditions – and although the court in Bruen said yes, we said that, but we need to be careful about taking English law as set gospel. For example NY found an example of English law where they restricted the right to carry arms and the court said well there were historical reasons for the regulations and also it was more related to armor. There were many examples in a range of historical document and examples that the litigants and courts cited. Think about how you would find these sources and how they were used. (see slide image below for sources). Then think about where you could confirm this information and how could you find the primary sources. The court finally decided there was no good history of historical bans. After that there was no further analysis as to if NY had any good reasons or anything. What is considered the relevant history? The time of the 2nd amendment or the time of the 14th amendment as this is a state question as well. The court also adopted reasoning by analogy and if there is something in the modern day that did not exist at that time is there a good analogy for today. Also pointed out that historical bans were very limited to sensitive places such as legislative houses. There were also comments that in some sensitive locations that firearms possessions might be encourages – such as in high risk schools.
Miller vs Smith 2023 WL 334788 the 7th circuit vacated an Illinois statute that said that regulations about bringing firearms into daycare and other locations needed to be re-examined through a historical lens.
Historical analysis is not just limited to the second amendment. It can be used to look at other rights. So as librarians we need to get to be more skilled in researching historical precedents.
- Law students find citations to very old items, but it is likely that those authors never saw those source documents either. Where are people getting these cites? From law reviews or where? Judge Chang says by the time it gets to the Supreme Court you should only be citing to documents that you have seen. Either by finding the primary source itself or citing to the secondary source. Push back on the authors of the secondary source as to where they saw the primary materials. At the District Court level there are now experts being appointed who have the job of finding those materials. As more materials are digitized there will be greater access.
- Is there a threshold for if someone is fleeing – what is the standard for if they are a danger to community? For example a fleeing burglar is less likely to be a risk. Are they armed? If they are driving are they acting recklessly? Garner might not be the be all end all standard. It is just probable cause. It is an ongoing debate and is there qualified immunity. There will be no damages if a reasonable officer believed they have probable cause. To ensure that government officials are not thinking with their pocket books. Government officials should be acting in behalf of the best interest of the public.
- Meetings – Trellis is sponsoring a Happy Hour on March 23rd at Beatrix. Details will be circulated next week. May 18th in person business meeting. Details to follow.
- Mentorship – – There is a breakfast event for new members (either new to the profession or CALL). 8 am at Revival Food Hall on Tuesday, Feb 26th.
- Continuing Education – Two programs in the works. One aiming for mid-April with Kristen Peters. A civil rights attorney out of NY and she is working on another panelist. Another program in the works is on State Docket research.
- Nominations and Elections – The slate of candidates is available at https://vote.aallnet.org/chp-call/index.asp and please vote by March 14th.
AALL Scholarship awards jury wanted to remind people there is an April 1st Deadline if you want to apply. Information is available on the AALL website.
- Community Service Projects: Open Books & Cradles to Crayons :In connection with the February business meeting, the Community Service Committee encourages CALL members to make a monetary donation to support Open Books. Their mission is to transform lives through reading, writing, and the unlimited power of books. Its model began in 2006 with a simple idea – to collect used books and sell them to support its literacy programs in Chicago. Since then, Open Books has expanded its programs to serve tens of thousands of Chicago youth, all in service to its vision that all of the city’s children have what they need to become lifelong readers. Open Books welcomes donations of any size! You can make a donation online at: https://www.open-books.org/ then click “Donate” in the top right corner.
Additionally, there will be a day of volunteer service opportunity coming up in March at Cradles to Crayons. On March 11 at 1:30 PM, CALL members (and their children age 5 and older) will have the opportunity to help pack up items for Cradles to Crayons. They provide children from birth through age 12, living in homeless or low-income situations, with the essential items they need to thrive – at home, at school and at play. They supply these items free of charge by engaging and connecting communities. New and nearly new children’s items are collected through grassroots community drives and corporate donations. Donations are then processed and packaged by volunteers in their warehouse, The Giving Factory®, and are then distributed to local children. Register online at www.cradlestocrayons.org/chicago/pre-register with this registration code a0R3b00000aPEnA on the right of the page.