Supreme Court Agrees to Hear Clinic Case

February 2, 2010

The U.S. Supreme Court has agreed to hear the case of a man represented by the Law School's Supreme Court Litigation Clinic. It will be the fifth clinic case heard by the Supreme Court in the past four years.

Supreme Court Litigation Clinic
The 2009-10 Supreme Court Litigation Clinic with clinic instructors Dan Ortiz, Mark Stancil and Jim Ryan (George Rutherglen and David Goldberg not pictured).

The case, Kevin Abbott v. United States of America,centers on federal firearms laws that allow additional charges with mandatory minimum prison sentences for certain crimes involving guns.

"The students are incredibly excited and have already started to prepare," said Professor Dan Ortiz."They're seeing a real cutting-edge issue before the Supreme Court, because the lower courts have gone both ways."

The case centers a federal law that provides sentence enhancements of five years or more for some crimes involving firearms. At issue is a part of the law known as the "except clause," which says the additional prison terms for the firearms crimes do not apply if "a greater minimum sentence is provided by any other provision of law."

The clinic's client, Kevin Abbott, was arrested and convicted on two federal drug charges, and was also charged with two firearms violations: the possession of a firearm for drug trafficking purposes and possession of a firearm by a felon. He was convicted on all counts, and the two firearms charges added a total of 20 years in prison to his sentence.

The clinic's position is that the "except clause" dictates that additional sentences for firearms charges should not apply if the original charges carry a minimum sentence greater than the subsequent firearms charges.

"We're arguing that 'any other provision of law' means what it says and thus includes predicate offenses," Ortiz said.

Secondly, the clinic is arguing that even if the term does not include all crimes, the "except clause" certainly applies to other firearm charges relating to the same offense.

Appeals courts have varied greatly in how to interpret the clause, which helped make the case a good candidate for Supreme Court review, Ortiz said.

Casey Lee
Casey Lee '10

"Depending on which questions you're talking about, [the lower courts] have very different opinions and very different rationales," said clinic student Casey Lee '10."It's interesting to look at what the scope of the opinions is and also at why they disagree."

The case will be argued in front of the Supreme Court in October or November by clinic instructor David Goldberg, Ortiz said.

Until then, students will work to prepare a brief on the merits of the case. Clinic student Lanora Pettit '10 said it was gratifying to learn that the Supreme Court agreed to hear the case, and that the clinic offers a rare opportunity for law students.

Lanora Pettit '10

"Since I started law school I've been interested in moot court and appellate advocacy, so this is like a dream class for me," Pettit said."This could be the only opportunity most of us will ever have to work on a case at this high level. It's a lot of research and a lot of writing, which can be kind of daunting, but it is completely worth it."

Ortiz said the case also gives students a chance to work on a timely issue that could have ramifications beyond firearms law.

"It's a really interesting case in general, because it asks 'What counts as any other provision of law?' and it poses theoretical issues about the proper way to interpret a statute. Do you look at just the plain meaning? Do you look at legislative intent?"

Though the case will be argued after the students involved have graduated, Lee said he hopes to be able to be an observer in court that day.

"It's been an incredibly enjoyable and unique experience, and the opportunity to work on this case has been illuminating for me," he said."I've learned a lot from it and hopefully we'll get a good result."

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