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In the Supreme Court of the United States No. In the Supreme Court of the United States GARY C. BERNACKI, SR., Petitioner, v. STATE OF CONNECTICUT, Respondent. On Petition for a Writ of Certiorari to the Connecticut Supreme Court PETITION FOR A WRIT OF CERTIORARI JEFFREY A. MEYER ANDREW J. PINCUS Yale Law School Counsel of Record Supreme Court Clinic CHARLES A. ROTHFELD 127 Wall Street MICHAEL B. KIMBERLY New Haven, CT 06511 PAUL W. HUGHES (203) 432-4992 Mayer Brown LLP 1999 K Street, NW GLENN W. FALK New Haven Legal Washington, DC 20006 Assistance Assoc. Inc. (202) 263-3000 [email protected] 426 State St. New Haven, CT 06510 (203) 946-4811 Counsel for Petitioner QUESTION PRESENTED The Double Jeopardy Clause prohibits multiple punishments and successive prosecutions for the “same offence.” The Clause applies with respect to two distinct statutory offenses when the two crimes have the “same elements” under Blockburger v. United States, 284 U.S. 299 (1932). “The same- elements test, sometimes referred to as the ‘Block- burger’ test, inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars addi- tional punishment and successive prosecution.” Unit- ed States v. Dixon, 509 U.S. 688, 696 (1993). The question presented is: Whether the crimes of violating a court order by possessing a firearm and possessing a firearm in violation of a court order constitute the same offense under the Blockburger standard. ii TABLE OF CONTENTS Question Presented ..................................................... i Table of Authorities................................................... iii Opinions Below............................................................1 Jurisdiction..................................................................1 Constitutional Provision Involved..............................1 Statement ....................................................................1 A. Factual Background...........................................4 B. Proceedings Below .............................................4 Reasons for Granting the Petition............................11 A. The lower courts are deeply divided regarding how to apply Dixon. ........................11 1. The highest courts of Connecticut, Tennessee, and New York have adopted Chief Justice Rehnquist’s “generic elements” approach. .....................12 2. The high courts of Pennsylvania and Florida, as well as the Eleventh Circuit, have adopted Justice Scalia’s “incorporation” approach. .............14 3. Other courts and commentators have recognized the lower courts’ confusion in interpreting Dixon.................16 C. The question presented is a matter of substantial and growing importance. .............20 D. The Decision Below Is Wrong..........................24 Conclusion .................................................................27 iii TABLE OF AUTHORITIES CASES Ball v. United States, 470 U.S. 856 (1985)............................................... 7 Brown v. Ohio, 432 U.S. 161 (1977)............................................. 24 Commonwealth v. Yerby, 679 A.2d 217 (Pa. 1996)................................ 10, 14 Delgado v. Fla. Dep’t of Corrections, 659 F.3d 1311 (11th Cir. 2011)........................... 15 Ex parte Lange, 85 U.S. 163 (1873)............................................... 27 Ex parte Rhodes, 974 S.W.2d 735 (Tex. Crim. App. 1998)............. 18 Grady v. Corbin, 495 U.S. 508 (1990)............................................... 3 Harris v. Okla., 433 U.S. 682 (1977) (per curiam) ....................... 24 Penn v. State, 44 S.W.3d 746 (Ark. Ct. App. 2001) ................... 16 People v. Wood, 698 N.Y.S.2d 122 (App. Div. 1999)..................... 13 People v. Wood, 742 N.E.2d 114 (N.Y. 2000)................................ 13 State v. Bernacki, Nos. CRO5 0130195 & CR05 1029701 (Conn. Super. Ct. May 23, 2008) .......................... 4 iv TABLE OF AUTHORITIES—continued State v. Brandt, 713 S.E.2d 591 (S.C. 2011) ................................. 13 State v. Chicano, 584 A.2d 425 (Conn. 1990).................................... 7 State v. Gilley, 522 S.E.2d 111 (N.C. Ct. App. 1999).................. 16 State v. Huff, 802 N.W.2d 77 (Neb. 2011)................................. 17 State v. Johnson, 676 So. 2d 408 (Fla. 1996) ............................ 14, 15 State v. Kraklio, 560 N.W.2d 16 (Iowa 1997)................................. 17 State v. Kurzawa, 509 N.W.2d 712 (Wis. 1994) ......................... 15, 19 State v. Miranda, 644 So. 2d 342 (Fla. Dist. Ct. App. 1994)........... 15 State v. Powers, 967 P.2d 454 (N.M. Ct. App. 1998)..................... 16 State v. Rincon, 817 N.W.2d 31 (Iowa Ct. App. 2012).................. 16 State v. Warren, 500 S.E.2d 128 (S.C. Ct. App. 1998)................... 16 State v. Winningham, 958 S.W.2d 740 (Tenn. 1997)........................ 12, 13 Tanks v. State, 663 S.E.2d 812 (Ga. Ct. App. 2008).................... 16 United States v. Bennett, 44 F.3d 1364 (8th Cir. 1995)............................... 16 v TABLE OF AUTHORITIES—continued United States v. Carrillo-Espinoza, 1994 WL 171150 (9th Cir. 1994) ........................ 17 United States v. Dixon, 509 U.S. 688 (1993)......................................passim Univ. of Cincinnati v. Tuttle, 2009 WL 2836433 (Ohio Ct. App. 2009)....... 16, 26 Whalen v. United States, 445 U.S. 684 (1980)............................................. 25 STATUTES 18 U.S.C. § 922(g)(8)................................................. 22 28 U.S.C. § 1257 ......................................................... 1 Conn. Gen. Stat. § 53a-217 (a).......................................... 5, 6, 24, 25 § 53a-217(a)(3)(A).................................................. 4 § 53a-217(b)........................................................... 6 § 53a-223 ............................................................... 5 § 53a-223(a)..................................................passim MISCELLANEOUS David Abel, Restraining-Order Filings Unbound, Bos. Globe, Apr. 12, 2011 .................. 23 Simon Akam, Increase Is Seen in Number of Restraining Orders, N.Y. Times, July 1, 2009 ..................................................................... 21 Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807 (1997)...................... 19 vi TABLE OF AUTHORITIES—continued Connecticut Judicial Branch, Family Forms, Application of Relief from Abuse. ....................... 22 Kenneth T. Cuccinelli, Attorney General of Virginia, 2011 Annual Report: Domestic and Sexual Violence in Virginia (Dec. 2011) ..... 23 Domestic Violence, 0030 SURVEYS 7 (Thomson Reuters/West Oct. 2012).................... 20 Shannon Frattaroli, Removing Guns From Domestic Violence Offenders: An Analysis of State Level Policies to Prevent Future Abuse, Johns Hopkins Center for Gun Policy and Research (Oct. 2009)......................... 22 Peter J. Henning, Precedents in a Vacuum: The Supreme Court Continues to Tinker with Double Jeopardy, 31 Am. Crim. L. Rev. 1 (1993)........................................................ 19 Justin Jouvenal, Number of Requests for Restraining Orders Explodes in Virginia, Wash. Post., Feb. 4, 2012.................................... 21 Judicial Branch Statistics, Protective/Restraining Orders, State of Connecticut Judicial Branch, (Sept. 30, 2012) .................................................................... 21 Legal Community Against Violence, The 2010 Report: Recent Developments in Federal, State, and Local Gun Laws (Aug. 2010), ........... 22 Eli J. Richardson, Eliminating Double-Talk From the Law of Double Jeopardy, 22 Fla. St. U. L. Rev. 119 (1994)..................................... 19 vii TABLE OF AUTHORITIES—continued State of Connecticut Judicial Branch, Family Forms, Application of Relief from Abuse............ 22 Stop Abusive & Violent Env’ts, Special Report: The Use and Abuse of Domestic Restraining Orders (Feb. 2011) .............................................. 20 David H. Taylor et al., Ex Parte Domestic Violence Orders of Protection: How Easing Access to Judicial Process Has Eased the Possibility for Abuse of the Process, 18 Kan. J.L. & Pub. Pol’y 83 (2008) ................................. 22 PETITION FOR A WRIT OF CERTIORARI Petitioner, Gary C. Bernacki, Sr., respectfully pe- titions for a writ of certiorari to review the judgment of the Connecticut Supreme Court in this case. OPINIONS BELOW The opinion of the Connecticut Supreme Court (App., infra, 1a-63a) is reported at 52 A.3d 605 (2012). The opinion of the Connecticut Appellate Court (App., infra, 64a-75a) is reported at 998 A.2d 262 (2010). JURISDICTION The judgment of the Connecticut Supreme Court was entered on September 26, 2012. This Court’s ju- risdiction rests on 28 U.S.C. § 1257. CONSTITUTIONAL PROVISION INVOLVED The Fifth Amendment to the United States Con- stitution provides in relevant part: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” STATEMENT This case concerns the application of the Double Jeopardy Clause in a frequently recurring context: the prosecution of a criminal defendant both for a criminal act and for violating a court order that pro- hibits the same act. Petitioner in this case was sepa- rately punished for two crimes: (1) possessing a fire- arm in violation of a domestic protective order; and (2) violating a domestic protective order that prohi- bited him from possessing a firearm. In United States v. Dixon, 509 U.S. 688 (1993), a majority of this Court
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