B.L.U.F.What do all of those citations mean, and why is it important?

(1900 words)

There are two types of items that can possibly be cited in a legal “brief”. Those are the opinion or ruling of the court, and things submitted to the docket of a case.

With “real” legal briefs and opinions, they never(?) cite to docketed material in other cases. They might cite to items on this case’s docket. These are sometimes difficult to figure out, but it is possible.

Most of the problems stem from abbreviations. As an example, when a case is appealed, the parties might be asked to submit a “joint appendix”. This is often a multi-volume submission of hundreds of pages with all referenced works listed. In the latest filing by the state in Duncan v. Bonta the state cites some 28 different documents.

This is similar to the bibliography that some of my posts include.

Once the Joint Appendix is filed, the parties refer to those citations by “JA #”, where “#” is the number of that entry in the joint appendix. This makes it somewhat easier for the people reading to recognize the citations they have already processed. All it takes is a checkmark next to that citation to tell the reader they have already read and analyzed that citation.

For us, common people, it means we have to find the joint appendix and access it to look up a citation. I’m almost to the point where I want to write software that takes a PDF of these references and turns it into a spreadsheet.

Names

Names are not citations. They are easy ways of referring to a case that has been cited or which will be cited. As an example, a legal person reading Kotek or Lamont tells them exactly what case is referenced. This is a lot easier for a human than “WL 4541027” and “WL 4974979”.

A legal document that references a case, such as Kotek, must include a citation to that case.

The Best Citations, Supreme Court

These citations are of the form “volume number”, “reporter”, “page number”. For example, “556 U.S. 418” and “142 S.Ct. 2111”.
The two reporters for the Supreme Court are “U.S.” and “S.Ct.”. The “U.S.” reporter is the gold standard. These are the physically published opinions of the Supreme Court. The “S.Ct.” reporter is not official and is published by West.

Newly issued opinions will use an S.Ct. reporter with no page number given. Once West publishes the opinion, online at first, that citation will be updated to have the page number. Once the US Government publishes the opinion in the U.S. reporter, citations are supposed to use the U.S. reporter instead of the S.Ct. reporter.

Both citations will reference the same text. If there is a difference in the text, then the U.S. reporter governs.

Second Best, This Circuit Court

This is the first Article III inferior court. Their superior court is the Supreme court. This is the level that produces the most case law.

They consider their job to “interpret” Supreme Court opinions. That isn’t the reality. The reality is that they are supposed to apply the law as guided by the Supreme Court.

The courts consider their time valuable (it is). When a case comes before them, they ask the parties to state the question they are being asked, then they give their opinion.

They can publish their opinion, making it “case law” or it can be “unpublished”. If it is published, it will be added to one of the many formal reporters. An example of a reporter is “F.3d”. If it is not published, Westlaw will still have a citation to it.

Once a circuit court has published an opinion on a particular question, future cases will use that case law. Instead of doing the work to answer the question, they will instead say, “We already issued an opinion on this question. We stand by that opinion”.

An example of this is Kolbe in the Fourth Circuit. This is the opinion of the Fourth Circuit that means-ends is how inferior courts should Second Amendment cases should be decided.

Any citation to a published opinion of the Circuit Court is the best citation for a case within that circuit. Yes, even better than a citation to a Supreme Court opinion.

If the Supreme Court says that the sky is blue and the Ninth Circuit says “Only under certain circumstances, before we can make a statement about the color of the sky we must first determine if the circumstances are met. In the case at hand, those circumstances are not met. The sky is green.”

From the time the circuit court issues their opinion until the Supreme Court slaps them down, that case law stands. The district courts under that circuit must first determine the circumstances and if the district court finds that the circumstances are not met, they must say that the sky is green.

It takes a rogue district court to thumb their nose at the Circuit Court and tell the Court, “You got it wrong. I’m right. The Supreme Court told you that the sky is blue.”

As we follow cases across the country, we will find the same Supreme Court citations used. We will find that each Circuit Court has its own means-end case. In the Fourth it is Kolbe, in the Seventh it is Ezell.

Safe on Third! Citations to Opinions In Other Courts

While courts inferior to a particular circuit are required to respect the case law of their circuit, it is a powerful citation that can reference to another circuit’s opinion.

The court’s utopian vision says that a Circuit Court is not bound by the leanings of any particular state. This is as skewed as the belief that a state is “blue” because one county (see Cook County) votes blue and the population density is so unbalanced that it overwhelms the rest of the state.

A democracy is two wolves and a lamb voting on what to have for dinner.

If a circuit has no case law regarding a particular question, the parties will reach out to published opinions from other circuits to support their arguments. At the district level, this is often persuasive. It would be surprising if the state did not cite Ezell (2011) when arguing Kolbe (2017).

Most courts are cowards. They would rather not be first at anything. It is much safer for them to point to a sister circuit and say “What they said!”.

When we look at the current status of cases at the appeal level, we find that only the Fifth Circuit, IIRC, has issued any post Bruen opinion. Those questions have been about §922(g). There are no weapons bans or magazine bans before the Fifth Circuit. Nor are there any “sensitive place” questions before the Fifth. That’s because the states that are part of their circuit are not infringing as a matter of course.

I, personally, think the Fourth Circuit is sitting on —Dominic Bianchi v. Brian Frosh, No. 21-1255 (Court of Appeals) until some other circuit court issues an opinion in the face of Bruen.

Bruen is so powerful that nobody has found an unconditional path to gun control — yet. If one of the circuits issues an opinion that seems to work, the Fourth will latch onto it and decide Blanchi v. Frosh against The People almost instantly.

When all else fails, Westlaw

Westlaw is famous in the legal world. They have been collecting documents from the courts for years. Long before the Internet was a powerful research tool, Westlaw existed.

They are so well known that they are considered a reporter. The code for Westlaw reporter is “WL”.

Not only do they have the references, they also provide research assistance to their subscribers.

When a document is located in Westlaw, there is an option to generate a citation. The Westlaw system will generate the strongest citation for that opinion possible. As an example, if the document is a Supreme Court opinion which is published in both U.S. and S.Ct., Westlaw will give the U.S. citation.

The Federal Reporter is one of those powerful citations. F.3d is “Federal Reporter, 3rd Series”. There is a 2nd and 1st series as well. That is why we see so many citations using F.3d

If there is no better citation, Westlaw will then use their citation. WL 3019777, for example. Without a subscription to Westlaw, it is difficult to look up a Westlaw citation. If a legal office does not have access to Westlaw they are working at a serious disadvantage.

In the case of the citation just given, it was used in a Supreme Court filing which Google knows about. This would be cited by me as HANSON v. DISTRICT OF COLUMBIA, 1:22-cv-02256, (D.D.C. Apr 20, 2023) ECF No. 28 if I’m being lazy, or —ECF No. 28 - HANSON v. DISTRICT OF COLUMBIA, No. 1:22-cv-02256 (D.D.C.) if I actually cite with my software.

Conclusion

In general, plaintiffs (good guys) don’t use a lot of Westlaw citations. They just aren’t powerful enough. At best, they are from cases that were not overturned by the circuit court. At worst, they are cases that are still in an interlocutory state.

The state is much more likely to cite to those sorts of cases. They either have case law in the circuit, in which case they use that; otherwise they are left grasping at straws.

You can consider it in the same light as “You don’t want to be on the wrong side of history!”

At this point, all Second Amendment infringements are in chaos. Bruen threw such a monkey wrench into the works of the infringers that they have not recovered. We can hope that they never do.

Until the circuit courts affirm Bruen, we will be in this limbo.

On the good news side of things, we should start to see rapid issuance of TROs against infringing laws soon. As the state puts forth an infringement, the lawsuit will be filed the same day and the TRO issued the same week.

We will no longer be in the current situation, where we are playing wack-a-mole. The state issues an infringing law. We fight in court for years. We win. The law is struck down. The state issues a new infringing law the next day.