More on State Cops Counting as Federal Cops Under McNabb-Mallory

December 4, 2012
By Hanging Out with Carl Gunn

I’m in the midst of Ninth Circuit oral arguments this week, so my next more substantive post will come next week, but I thought I’d share the attached briefs I got in response to my last post from DFPD Alex Yates, one of the young (by my standards, anyway) stars in our FPD appellate unit here in Los Angeles (yes, I know they’re all stars, even the older ones). Alex’s briefs are attached here (see pages 45-51) and here (see pages 25-31), and I’m even attaching the government’s brief here (see pages 54-57). Alex makes a nice argument that a period in the custody of local law enforcement officers in that case did count under McNabbMallory as modified by 18 U.S.C. § 3501(c) and construed in the Supreme Court’s Corley and Alvarez-Sanchezcases (see last week’s post and the post before that on those cases). The hook for counting the local custody there was a statement in the local arrest report that the defendant had been arrested for a violation of 18 U.S.C. § 922(g)(5), which is of course a federal statute. There’s also a nice argument in the reply brief – and citation of supporting cases – about how the lodging of an immigration detainer doesn’t stop the operation ofMcNabbMallory and § 3501(c). On this last argument, Alex tells me that the government eventually changed its position and conceded the point at oral argument, for which a recording can be found on the Ninth Circuit’s website, at Unfortunately, neither this nor the first argument is addressed in a published opinion, because the client died and that mooted the appeal.

In any event, this is one interesting application of arguments like those suggested by last week’s post. So keep pushing the envelope.