University of Idaho College of Law

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Stanger v. Walker & Cattle, LLC Respondent\u27s Brief Dckt. 48092

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State v. Reilly Appellant\u27s Reply Brief Dckt. 48129

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Pena v. Wiking Insurance Company of Wisconsin Appellant\u27s Brief Dckt. 48379

Hannigan, Edith

English

Using Pre-Disaster Community Capacity to Address Land Use Post-Wildfire

Boeckel, Clay

Martin v. Boise: Sleeping in Public
Case Summary
by Clay Boeckel
Idaho Law Review
On December 16, 2019, the United States Supreme Court denied certiorari in the Martin
v. City of Boise case.1 The denial means the Ninth Circuit’s 2018 ruling stands, and Boise’s
sleeping-in-public ordinances are unconstitutional.2
One of the challenged ordinances made it a crime “to use any of the streets, sidewalks,
parks or public places as a camping place at any time.”3 The second classified sleeping in public
as disorderly conduct.4
The plaintiffs in the case were homeless individuals living in Boise who were cited for
violating the ordinances.5 One of the plaintiffs, Janet Bell, was cited for violating the camping
ordinance by sitting on a river bank while possessing a backpack with some of her belongings.6
Ultimately the repeated enforcement of these ordinances relegated Bell to sleeping in the bed of
a pickup truck outside of the city limits of Boise.7 Another plaintiff, Craig Fox, was cited for
disorderly conduct for sleeping on a bench in Ann Morrison Park while waiting for the shelters
to open up.8
The plaintiffs challenged the constitutionality of the two ordinances under the Eighth
Amendment arguing that they made the basic human necessity for sleep subject to criminal
liability, which was cruel and unusual punishment.9 These challenges were dismissed when the
district court granted summary judgment in favor of the City.10 The district court determined that
the Rooker-Feldman doctrine11 barred retrospective relief in the federal courts and that an
intervening special order rendered the claims for prospective relief moot.12 Boise’s Special Order
10-03 instructed that if shelter is not available then a homeless person found sleeping in public
cannot be cited for violating the sleeping or camping ordinances.13
13 Defendants’ Memorandum in Support of Summary Judgement at 9, Bell v. City of Boise, 834 F. Supp. 2d 1103
(D. Idaho 2011), rev'd, 709 F.3d 890 (9th Cir. 2013) (No. 1:09-cv-00540-REB), 2010 WL 11571115.
12 Id. at 1109.
11 Under the Rooker-Feldman Doctrine, federal courts cannot second guess state court decisions. Id. at 1109. If a
party can appeal a state court decision in state court, a federal court will not decide a new suit on the matter. Id.
10 Bell, 834 F. Supp. 2d at 1117.
9 Id. at 20.
8 Id. at 6.
7 Id. at 5.
6 Complaint for Injunctive and Declaratory Relief, and Monetary Damages at 4, Bell v. City of Boise, 834 F. Supp.
2d 1103 (D. Idaho 2011), rev'd, 709 F.3d 890 (9th Cir. 2013) (No. 1:09CV00540), 2009 WL 4379719.
5 Id. at 1106.
4 Id.
3 Id. at 1105.
2 See Bell v. City of Boise, 834 F. Supp. 2d 1103, 1105–06 (D. Idaho 2011), rev'd, 709 F.3d 890 (9th Cir. 2013).
1 City of Boise v. Martin, 140 S. Ct. 674 (2019) (mem.).
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Boeckel: Martin v. Boise: Sleeping in Public (Case Summary)
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Plaintiffs appealed to the Ninth Circuit Court of Appeals, which reversed.14 The Ninth
Circuit found that the claims for retrospective relief were not barred by the Rooker-Feldman
doctrine and that jurisdiction existed for the claims for prospective relief.15 It remanded the case
to the district court for further proceedings.16
On remand the district court again granted summary judgment for the City on the claim
for retrospective relief.17 It held that the plaintiffs failed to raise the Eighth Amendment
challenge during their criminal prosecutions and thus could not raise them now for retrospective
relief under the favorable termination requirement recognized in Heck v. Humphreys.18 The
district court, in a separate opinion, also ruled that the claims for prospective relief were not
barred but ultimately still failed due to being rendered moot as a result of the special order and
amendment to the city code.19
The plaintiffs appealed again.20 The Ninth Circuit affirmed that the claims for
retrospective relief were generally barred, with the exception of the claims regarding citations
that were dismissed before conviction.21 Additionally, the Ninth Circuit held that the prospective
relief sought were not barred by Heck, and there was an issue of material fact regarding the
plaintiffs’ risk of future prosecution due to the regulations placed on the shelter options for the
homeless individuals.22 The court reversed the summary judgment granted in favor of the City.23
One of the issues identified by the court was the fact that an individual who had to wait for
admission to a shelter, due to certain time constraints, was exposed to being barred from seeking
admission at another shelter.24 Additionally, some individuals could be turned away from shelters
due to the shelters’ policies that required adherence to their religious practices.25 On the merits of
the Eighth Amendment challenge, the Ninth Circuit held that any restriction in the form of
criminal penalties on an individual’s ability to sit, sleep, or lay down when no valid alternatives
are available is indeed cruel and unusual punishment and a violation of the Eighth Amendment.26
26 Id. at 1048.
25 Id. at 1041.
24 Id.
23 Id. at 1041–42.
22 Id. at 1042.
21 Id. at 1049.
20 Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), opinion amended and superseded on denial of reh'g, 920
F.3d 584 (9th Cir. 2019), cert. denied sub nom. Boise, ID v. Martin, No. 19-247, 2019 WL 6833408 (U.S. Dec. 16,
2019).
19See Martin v. City of Boise, No. 1:09-CV-00540-REB, 2015 WL 5708586, at *8 (D. Idaho Sept. 28, 2015), rev'd
and remanded, 902 F.3d 1031 (9th Cir. 2018), and opinion amended and superseded on denial of reh'g, 920 F.3d 584
(9th Cir. 2019), and rev'd and remanded, 920 F.3d 584 (9th Cir. 2019).
18 Id.(citing Heck v. Humphreys, 512 U.S. 477 (1994)).
17 Bell v. City of Boise, 993 F. Supp. 2d 1237, 1239 (D. Idaho 2014), aff'd in part, rev'd in part and remanded sub
nom. Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), and opinion amended and superseded on denial of
reh'g, 920 F.3d 584 (9th Cir. 2019), and aff'd in part, rev'd in part and remanded sub nom. Martin v. City of Boise,
920 F.3d 584 (9th Cir. 2019).
16 Id.
15 Id.
14 Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013).
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This ruling was followed with a request for an en banc rehearing, which was denied.27
The denial contained two dissents, the first of which was written by Judge Smith. Judge Smith’s
dissent said the holding is beyond the scope of the court and not founded in precedent. 28
Additionally, Judge Smith voiced concerns on the impact of the ruling for cities all over when
addressing the issue of homelessness.29 The second dissent, by Judge Bennett, objected to the use
of the Eighth Amendment, stating that the amendment’s original purpose was to ban types of
punishment, not to restrict cities from criminalizing activities.30
30 Id. at 599–603. (Bennet, J., Dissenting).
29 Id.
28 Id. at 590–99. (Smith, J., Dissenting).
27Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019).
3
Boeckel: Martin v. Boise: Sleeping in Public (Case Summary)
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Martin v. Boise: Sleeping in Public (Case Summary)

Trivolis, Dawn

Ahrens, Trevor

Ninth Circuit Joins Second Amendment Circuit Split on Mental Health
Issue Summary
By Dawn Trivolis and Trevor Ahrens
Idaho Law Review
In 1776, Thomas Jefferson said, “No freeman shall ever be debarred the use of arms.”1 In
2020, the Ninth Circuit ruled against plaintiff Duy Mai and joined a circuit split over how the
right to bear arms applies to individuals who were once involuntarily committed but who have
since returned to mental health.2 The Third and now Ninth Circuits have ruled that once an
individual has been committed or adjudicated as mentally ill, absent relief under a state relief
process, he or she is unable to regain his or her Second Amendment right.3 The Sixth Circuit
reached the opposite conclusion and ruled that a lifetime ban on firearms ownership does not
survive intermediate scrutiny.4
In Mai, the plaintiff’s commitment to a mental institution for more than nine months at
the age of seventeen triggered a federal and state prohibition against his ownership of firearms.5
After his release from the institution in 2000, Mai earned a GED, a bachelor’s and master’s
degrees, passed an FBI background check, and became gainfully employed and the father of two
children.6 Mai successfully petitioned a Washington state court in 2014 and found relief from the
state firearms prohibition.7 When he attempted to purchase a firearm, he was unable to and
received a notice from the ATF that the state-level restoration did not remove his Second
Amendment disqualification under 18 U.S.C. § 922(g)(4).8 Mai subsequently filed suit in
Washington alleging a violation of his Second and Fifth Amendment rights.9 After the district
court granted the government’s motion to dismiss, Mai appealed to the Ninth Circuit.10
Mai argued the Second Amendment required he be able to possess a firearm.11 The court
disagreed, holding an individual previously involuntarily committed and then later returning to
mental health may only find relief from § 922(g)(4) under two potential avenues.12 First, an
individual may apply to the U.S. Attorney General for relief.13 Second, an individual may apply
13 Id.
12 Id. at 1111.
11 Id. at 1114.
10 Id.
9 Mai, 952 F.3d at 1112.
8 Mai v. United States, 2018 U.S. Dist. LEXIS 21020, 3 (W.D. Wash. 2018).
7 Mai, 952 F.3d at 1110.
6 Mai, 952 F.3d at 1110; see also First Amended Complaint at 32–49, Mai v. United States, 2018 U.S. Dist.
LEXIS 21020 (No. 2:17-cv-00561-RAJ) (declarations from medical and psychiatric professionals attesting
that Mai posed no risk to himself or others).
5 Mai, 952 F.3d at 1109; 18 U.S.C. § 922(g)(4) (2020); Wash. Rev. Code Ann. § 9.41.040 (West, Westlaw
through Chapter 8 of the 2021 Regular Session ).
4 Tyler v. Hillsdale Cty. Sheriff's Dep't, 837 F.3d 678, 688–99 (6th Cir. 2016).
3 Id. at 1114, 1121; Beers v. AG United States, 927 F.3d 150, 159 (3d Cir. 2019).
2 Mai v. United States, 952 F.3d 1106, 1109–10, 1114 (9th Cir. 2020).
1 “I. First Draft by Jefferson, [before June 1776],” Founders Online, National Archives,
https://founders.archives.gov/documents/Jefferson/01-01-02-0161-0002 (last visited Dec. 22, 2020).
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for relief through a state program so long as it qualifies under 34 U.S.C. § 40915.14 The first
method offers little more than false hope as the method under the U.S. Attorney General has
been entirely defunded by Congress.15 Washington’s program did not qualify,16 leaving Mai with
no method to have his right reinstated.
Even though Mai had no viable path to his Second Amendment right being reinstated and
the Ninth Circuit agreed the law’s burden on Mai’s right was substantial, the Court of Appeals
ruled that the government’s interest in preventing crime and preventing suicide was legitimate
and compelling.17 The court concluded that while they had no doubt Mai was no longer mentally
ill, § 922(g)(4)’s application to Mai withstood scrutiny and justified Mai losing a fundamental
right.18
Congress, in passing § 40195, designed a path for citizens to regain their Second
Amendment right when they are determined to no longer be a threat to themselves or others. In
Heller, the landmark Second Amendment case, the Court stated local legislatures are in the best
position to evaluate local problems and “may seek to solve similar problems in different ways,
and . . . must be allowed to solve problems in different ways, and . . . must be allowed a
reasonable opportunity to experiment with solutions to admittedly serious problems.”19 Yet, the
Ninth Circuit’s decision in Mai suggests a diversion from this when the court determined
Washington’s approach to reinstating one’s Second Amendment was not good enough.
Judge Bumatay, dissenting from the Ninth Circuit’s denial of a panel rehearing, said the
case implies a startling perspective on mental illness.20 Many seek help with their mental health
in the hopes of no longer suffering from their illness, and others fear seeking help because they
do not want to be labeled as mentally ill forever. While the Ninth Circuit states in their
conclusion they do not agree that “once mentally ill, always so,”21 Judge Bumatay says the
court’s use of scientific literature to justify its conclusion regarding mental illness and a
permanent prohibition of one’s Second Amendment suggests the Ninth Circuit believes mental
illness possibly justifies a lifetime of differential treatment and restricted rights.22
Mai’s request for relief would likely have ended differently if the events transpired in
Idaho. Similar to Mai, someone living in Idaho may be involuntarily committed by a judge only
after a finding that the person is mentally ill, likely to hurt himself or others, and unable to make
informed treatment decisions.23 The involuntary commitment process moves quickly with the
involvement of a local prosecutor’s office, the individual’s legal counsel, a magistrate, and
23 Idaho Code § 66-329 (2020).
22 Id. “[W]e undermine our Second Amendment jurisprudence and give an unworthy judicial imprimatur to
the false premise that ‘once mentally ill, always mentally ill.’”).
21 Id. at 1084.
20 Mai v. United States, 974 F.3d 1082, 1083 (9th Cir. 2020) (Bumatay, J., dissenting).
19 District of Columbia v. Heller, 554 U.S. 570, 705 (2008), citing Renton v. Playtime Theatres, Inc., 475
U.S. 41, 52 (1986) (internal quotation marks omitted).
18 Id. at 1121.
17 Id. at 1120–21.
16 Id. at 1112.
15 Id.
14 Mai, 952 F.3d at 1111.
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representatives from the Department of Health and Welfare [DHW].24 The individual’s mental
health is evaluated three times by designated examiners within a span of 72 hours.25 For
commitment to be warranted, the designated examiners’ findings must show the person is
mentally ill and either a danger to himself, others, or disabled by their mental illness.26 After the
findings are submitted, the court has seven days to hold a hearing where a determination is made
whether the person should be committed to the custody of DHW until mental health is restored.27
Once a person has been involuntarily committed in Idaho and a judge finds that §
922(g)(4) applies, federal and state firearms prohibitions are automatically triggered.28 However,
the firearms restriction is not permanent. Idaho provides a viable path for a person to petition the
court to reinstate his Second Amendment rights once he has shown a return to mental health.29
Idaho’s Relief from Firearms Disabilities program complies with the requirements outlined in §
40915, resulting in potential relief from both the federal and state firearms prohibitions.30 If Mai
had lived in Idaho at the time of his mental health crisis and subsequent firearms reinstatement
petition, he likely would have found success with the court.31
31 See Mai, 952 F.3d at 1112 (among other things, the denial of Mai’s petition turned on Washington’s
choice of words).
30 Id. In contrast to Idaho, Washington’s relief program is not a qualifying state program because the
factual findings required in Washington differ from those required under § 40915. Washington requires a
finding that a person “no longer presents a substantial danger to himself or herself, or the public.” Wash.
Rev. Code 9.41.047(3)(c)(iii). For a state program to qualify under 34 U.S.C. § 40915(a)(2), there must be
a determination that “the person will not be likely to act in a manner dangerous to public safety.”
29 Idaho Code § 66-356.
28 18 U.S.C. § 922(g)(4); Idaho Code § 66-356 (2020).
27 Id.
26 Id.
25 Id.
24 See id.
3
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Ninth Circuit Joins Second Amendment Circuit Split on Mental Health (Issue Summary)

Cover, Aliza Plener

Eppink, Ritchie

Cover v. Idaho Board of Correction
Practitioner Comment
by Aliza Plener Cover
Professor of Law, University of Idaho College of Law; Petitioner, Cover v. IBOC
and Ritchie Eppink
Legal Director, ACLU of Idaho; Attorney of Record, Cover v. IBOC
Government transparency is a democratic necessity. Idaho’s public records act recognizes
this; it is designed to give ordinary citizens access to information to hold their government
accountable. Transparency and accountability are all the more important in the context of the
death penalty, where the state punishes with lethal force in the name of the people. Without
knowing how the state is carrying out the death penalty, the public lacks crucial information
about whether the capital punishment system is consistent with their values. In the unique area of
the death penalty, such communal value judgments have constitutional significance: in
evaluating capital punishment’s constitutionality, the Supreme Court looks to the “evolving
standards of decency” reflected in the judgment of legislatures and the public.1 Public access to
information is therefore key to a robust public discourse that informs capital punishment policy
as well as its constitutionality.
Historically, capital punishment was a public affair,2 a brutal display that warned the
populace about the consequences of criminal behavior. As capital punishment retreated away
from the public square and into execution chambers, it became increasingly hidden from view,
but it retained certain assurances of public access.3 The past decade has ushered in a new era of
execution secrecy, as lethal injection chemicals have become scarce and states have scrambled to
obtain these chemicals—sometimes through illegal, unethical, or unsafe means4—while passing
new laws shielding execution practices from public oversight.5 Secret acquisition of drugs from
unregulated and unreliable sources, as well as rapidly changing execution protocols sanctioning
use of experimental drug cocktails, have increased risks of botched executions—what Justice
Sotomayor has called the “chemical equivalent of being burned at the stake.”6
6 Glossip v. Gross, 576 U.S. 863, 949 (2015) (Sotomayor, J., dissenting); see also id. at 951
(describing botched execution of Clayton Lockett in Oklahoma).
5 See, e.g., William W. Berry III & Meghan J. Ryan, Cruel Techniques, Unusual Secrets, 78 OHIO
ST. L.J. 403, 423 (2017).
4 See, e.g., ROBIN KONRAD, DEATH PENALTY INFO. CTR., BEHIND THE CURTAIN: SECRECY AND THE DEATH PENALTY IN THE
UNITED STATES 24–45 (2018),
https://deathpenaltyinfo.org/facts-and-research/dpic-reports/in-depth/behind-the-curtain-secrecy-
and-the-death-penalty-in-the-united-states.
3 Id.
2 California First Amendment Coalition v. Woodford, 299 F.3d 868, 875 (9th Cir. 2002).
1 E.g., Atkins v. Virginia, 536 U.S. 304, 312 (2002) (citing Trop v. Dulles, 356 U.S. 86, 100–01
(1958)).
1
Cover and Eppink: Cover v. Idaho Board of Correction (Practitioner Comment)
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Idaho, too, has moved toward execution secrecy, and the three years of public records act
litigation in Cover v. IBOC shows the extent of the state’s attempts to shield information about
Idaho executions from public scrutiny. The court in Cover found that the Idaho Department of
Correction’s own public information officer acted in bad faith in refusing to provide responsive
documents. And there is cause for concern about what these records reveal. One 2011 email
shows that IDOC officials were in communication with a drug distributor in India who sold large
quantities of lethal injection chemicals to other state correctional departments that were later
seized at the border by the FDA because they were illegally imported.7 Although we still don’t
have the whole story about how Idaho obtained all the chemicals used to execute Paul Ezra
Rhoades in 2011 and Richard Leavitt in 2012, we now know that Idaho corrections officials paid
more than $10,000—in cash—to out-of-state compounding pharmacies in order to obtain at least
some of these drugs.
The public needs access to information about whether the government is ethically and
legally obtaining execution chemicals, and whether the nature and source of those chemicals is
likely to cause torturous death. The Idaho Supreme Court’s unanimous opinion in this case is an
important affirmation of the public interest in transparency when the government’s coercive
power is at its peak.
7 Chris McDaniel & Tasneem Nashrulla, “This Is the Man in India Who Is Selling States Illegally
Imported Execution Drugs,” BUZZFEED NEWs (Oct. 20, 2015),
https://www.buzzfeednews.com/article/chrismcdaniel/this-is-the-man-in-india-who-is-selling-stat
es-illegally-imp.
2
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Cover v. Idaho Board of Correction (Practitioner Comment)

Helgeson, Brandon

Hairston v. State: Capital Punishment for Youthful Offenders
Case Summary
by Brandon Helgeson
Idaho Law Review
The Supreme Court of Idaho recently held in Hairston v. State that evidence of evolving
standards of decency, both nationally and in Idaho, did not support a categorical prohibition on
capital punishment for youthful offenders—those between the ages of eighteen and twenty—
under the Eighth Amendment.1
The petitioner, James Hairston, had been found guilty of two counts of first degree
murder and one count of robbery in 1996, and he was sentenced to death for the two murders.2
Hairston was nineteen at the time of the murders.3 This case arose out of Hairston’s fourth
post-conviction petition for relief, contending that (1) imposing the death penalty on an
individual who was under the age of twenty-one at the time of the offense is unconstitutional
under the Eighth Amendment; and (2) the trial court did not give adequate consideration to
mitigating factors applicable to youthful offenders during the sentencing phase.4 The State of
Idaho moved for summary dismissal of the petition under Idaho Code section 19-4906(c),
arguing in part that the petition was time-barred.5 The district court rejected this claim, and the
Idaho Supreme Court affirmed that decision here, allowing the court to evaluate Hairston’s
constitutionality claim on the merits.6
Hairston’s claim regarding the constitutionality of sentencing a youthful offender to death
essentially sought to extend the age cutoff for the prohibition on executing offenders who were
under the age of eighteen at the time of the offense that was announced by the Supreme Court of
the United States in Roper v. Simmons.7 In Roper, the Supreme Court applied its framework for
determining whether a form of punishment can be considered “cruel and unusual” under the
Eighth Amendment by looking to evidence of “the evolving standards of decency that mark the
progress of a maturing society.”8 This standard was applied later in Graham v. Florida9 and
Miller v. Alabama10 to prohibit the most extreme forms of criminal punishment for youthful
offenders under the age of eighteen.
10 567 U.S. 460 (2012) (holding that mandatory life without parole for youthful offenders violates the Eighth
Amendment).
9 560 U.S. 48 (2010) (prohibiting the imposition of a life without parole sentence on juvenile offenders for
non-homicide offenses).
8 See Roper, 543 U.S. at 551 (quoting Trop v. Dulles, 356 U.S. 86, 100–01 (1958)).
7 See Roper v. Simmons, 543 U.S. 551, 578 (2005); Hairston, 167 Idaho 462, 472 P.3d at 48.
6 See Hairston, 167 Idaho 462, 472 P.3d at 48.
5 Id. at 47; IDAHO CODE § 19-4906(c) (2020) (allowing the court to grant judgment as a matter of law on the
pleadings if there is no genuine issue of material fact).
4 See id.
3 Hairston, 167 Idaho 462, 472 P.3d at 46.
2 State v. Hairston, 133 Idaho 496, 501, 988 P.2d 1170, 1175 (1999).
1 Hairston v. State, 167 Idaho 462, 472 P.3d 44 (2020).
1
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In order to meet this standard, Hairston proffered evidence of both a national and
Idaho-specific consensus that had developed against the execution of offenders who were under
the age of twenty-one at the time of the offense.11 This included citing to jurisdictions that no
longer executed defendants under the age of twenty-one through abolition of the death penalty
entirely, suspending executions through moratoria, and those who no longer execute youthful
offenders under the age of twenty-one through prosecutorial practice.12 Hairston cited to the fact
that Idaho has not sentenced anyone under the age of twenty-one to death since he was
sentenced.13 The decisions of prosecutors, judges, and juries, he said, reflect a sentiment against
executing offenders in this age group.14 Hairston also offered evidence of a consensus among the
scientific and medical communities that the purposes of the death penalty15 are equally
disfavored for offenders under the age of twenty-one as they are for those under the age of
eighteen due to their relative psychological and neurobiological immaturity.16
The Idaho Supreme Court found these arguments unpersuasive for finding the execution
of an offender between the ages of eighteen and twenty-one unconstitutional for two main
reasons. The first was that Hairston had not cited to any legislative enactment or executive action
prohibiting the execution of nineteen and twenty-year olds.17 The Court reiterated “absent some
legislative or executive action, a determination by this Court that Idaho’s death penalty statute is
unconstitutional based on evolving standards of decency and public opinion is unsupported.”18 In
addition, the Court noted that there is no case since Roper that has meaningful precedential value
that has extended the age cutoff to twenty-one.19
The second—and perhaps most important—reason for rejecting Hairston’s claim is that
the United States Supreme Court has not extended the age limit in the fifteen years since Roper
was decided.20 Because Idaho’s courts have traditionally tracked the Eighth Amendment
jurisprudence of the U.S. Supreme Court,21 the Idaho Supreme Court considers the issue
“definitively spoken” on by the U.S. Supreme Court and deferred to their judgement.22 The court
recognized the inherent issue in drawing a categorical line, which was recognized by the U.S.
Supreme Court in Roper: “The qualities that distinguish juveniles from adults do not disappear
when an individual turns 18. By the same token, some under 18 have already attained a level of
22 Id.
21 Id. (citing State v. Draper, 151 Idaho 576, 599, 261 P.3d 853, 876 (2011)).
20 Id.
19 Id. at 50.
18 Id. at 49 (quoting State v. Abdullah, 158 Idaho 386, 456, 348 P.3d 1, 71 (2015)).
17 See id.at 49–50.
16 Hairston cited primarily to the report of Dr. Laurence Steinberg which analyzes the brain maturation of
adolescents and young adults. See Hairston, 167 Idaho 462, 472 P.3d at 49.
15 Three main rationales for punishment are rehabilitation, deterrence, and retribution. See Kennedy v. Louisiana,
554 U.S. 407, 420 (2008); see also Roper, 543 U.S. at 571 (“Retribution is not proportional if the law's most severe
penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of
youth and immaturity.”).
14 Id.
13 Id.
12 Id.
11 Hairston, 167 Idaho 462, 472 P.3d at 49.
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maturity some adults will never reach. For the reasons we have discussed, however, a line must
be drawn.”23 Thus, despite the evidence of national, international, and statewide trends, and the
medical and scientific evidence provided by Hairston, the Court found that Idaho’s death penalty
statute allowing for the execution of offenders who were over the age of eighteen at the time of
their offense was constitutional.24
24 Hairston, 167 Idaho 462, 472 P.3d at 50.
23 Roper, 543 U.S. at 574.
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Hairston v. State: Capital Punishment for Youthful Offenders (Case Summary)

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
9-28-2021 
State v. Bauer Respondent's Brief Dckt. 48393 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
 
v. 
 
 
RAWDY ALAN BAUER, 
 
          Defendant-Appellant. 
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NOS. 48393-2020 & 48394-2020 
 
 
 
Bonneville County Case Nos.  
CR-2018-8208 & CR10-2019-1085 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Rawdy Alan Bauer failed to show that the district court abused its discretion by 
sentencing him to seven years, with two years determinate for grand theft, and ten years, with two 
years determinate for burglary? 
 
ARGUMENT 
 
Bauer Has Failed To Show That The District Court Abused Its Discretion 
 
A. Introduction 
In August of 2018, authorities responded to a report of two suspicious men wandering 
around a new housing development.  (PSI, p. 4.)  Authorities located Rawdy Alan Bauer and 
Electronically Filed
9/29/2021 8:32 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
Charlie Becerril inside a Toyota truck, parked in a garage of a home under construction.  (PSI, p. 
4.)  Deputies noticed a butane torch on the dash, and asked why Bauer and Becerril why they had 
parked in the garage.  (PSI, p. 4.)  Bauer indicated that Becerril had been too intoxicated to drive, 
so they parked in the garage and walked around to get Becerril sober.  (PSI, p. 4.)  A K-9 unit 
alerted to the presence of drugs in the vehicle, and deputies located six different cell phones, bank 
cards, credit cards, a methamphetamine pipe, and an I.D. belonging to Shaeleigh Chambers.  (PSI, 
p. 4.)   
Under case number CR-2018-8208, the state charged Bauer with one count of grand theft 
by possession of stolen property, one count of possess with intent to use drug paraphernalia, and 
one count of unlawful entry.  (48393 R., pp. 58-59.)  On January 29, 2019, Bauer pleaded guilty 
to one count of grand theft by possession of stolen property, and the state agreed to dismiss the 
drug paraphernalia and unlawful entry charges, along with three other criminal cases.  (48393 R., 
pp. 86-89, 95-96.)   
In February of 2019, while out on bond, Bauer broke into two vehicles belonging to 
Watkins Distributing.  (48393 R., p. 94; 48394 R., pp. 9-10.)  Bauer stole a knife, flashlight, vehicle 
registrations, a set of keys, and an orange jump box.  (48394 R., p. 10.)  Bauer also had a 
methamphetamine pipe in his vehicle, and stated that he had just smoked meth when authorities 
arrived on scene.  (48394 R., p. 10.)  Under case number CR10-19-1085, the state charged Bauer 
with two counts of burglary, and one count of possession of drug paraphernalia.  (48934 R., pp. 
52-53.)  Bauer pleaded guilty to one count of burglary, and the state agreed to dismiss the 
remaining charges.  (48394 R., pp. 69-71, 78-79.)   
In CR-2018-8208, the district court sentenced Bauer to seven years, with two years 
determinate for grand theft.  (48393 R., pp. 128-129.)  In CR10-19-1085, the district court 
 3 
sentenced Bauer to ten years, with two years determinate for burglary, and ordered the sentence to 
run concurrent to that imposed in CR-2018-8208.  (48394 R., pp. 83-85.)  Bauer filed Rule 35 
motions in each case, which the district court denied.  (48393 R., pp. 132, 137; 48394 R., pp. 88, 
93.)   
Bauer filed untimely appeals in both cases, and the Supreme Court dismissed the appeals 
under Docket Numbers 47239-2019 and 47240-2019.  (48393 R., pp. 141-143, 150-151; 48394 
R., pp. 97-99, 106-107.)  Pursuant to an order of post conviction relief in CV10-19-6364, the 
district court entered amended judgments of conviction to allow Bauer to file timely appeals.  
(48393 R., pp. 157-158, 161-163; 48394 R., pp. 113-115, 119-125.)   
On appeal, Bauer argues that “the district court abused its discretion by imposing excessive 
sentences in both cases.”  (Appellant’s brief, p. 1.)  Bauer has failed to show that the district court 
abused its discretion by imposing concurrent sentences of seven years, with two years determinate 
for grand theft, and ten years, with two years determinate for burglary. 
 
B. Standard Of Review 
“Appellate review of a sentence is based on an abuse of discretion standard.  Where a 
sentence is not illegal, the appellant has the burden to show that it is unreasonable and, thus, a clear 
abuse of discretion.”  State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (internal 
quotations and citations omitted).  A sentence of confinement is reasonable if it appears at the time 
of sentencing that confinement is necessary to accomplish the primary objective of protecting 
society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution 
applicable to a given case.  Id. at 454, 447 P.3d at 902.  “A sentence fixed within the limits 
prescribed by the statute will ordinarily not be considered an abuse of discretion.”  Id. (internal 
quotations omitted).  “In deference to the trial judge, this Court will not substitute its view of a 
 4 
reasonable sentence where reasonable minds might differ.”  State v. Matthews, 164 Idaho 605, 
608, 434 P.3d 209, 212 (2019) (citation omitted).   
 
C. Bauer Has Shown No Abuse Of The District Court’s Discretion 
The sentences imposed are within the statutory limits of I.C. §§ 18-1403 and 18-2408.  The 
record shows the district court perceived its discretion, employed the correct legal standards to the 
issue before it, and acted reasonably and within the scope of its discretion.   
At the sentencing hearing, the district court considered “protection of society, deterrence, 
rehabilitation, and punishment, as well as the criteria set forth in Idaho Code 19-2521.”  (Tr., p. 
45, Ls. 6-12.)  The district court stated that “it’s clear that there’s a history of theft cases,” and 
“substantial drug issues.”  (Tr., p. 45, Ls. 13-16.)  The district court stated that Bauer has “not done 
well once [he has] been released.”  (Tr., p. 45, Ls. 18-19.)  The district court noted that Bauer had 
been “arrested on this [instant] offense in August of 2018,” was “in jail for about a month before 
bonding out” and “then got new charges.”  (Tr., p. 45, Ls. 23-25.)  He “[w]ent back to jail for about 
two weeks,” then “bonded out again,” but “missed a court date.”  (Tr., p. 45, L. 23 – p. 46, L. 3.)  
The district court went on, stating Bauer “had some dirty UAs.  Once again, [his] release was 
revoked.  Once again, [he] got new charges.  Then [Bauer] spent a couple more months in jail.  
[He] bonded out again,” and “missed [his] presentence investigation interview and [was] arrested 
on a warrant.”  (Tr., p. 46, Ls. 4-8.)   
The district court noted that Bauer’s “UA tests were more positive than they were negative.  
Frequently, [Bauer] didn’t do [his] testing.  [He] continued to use methamphetamine regardless of 
the consequences.  [He has] not participated in treatment during supervision, and [his] thinking is 
highly criminal.”  (Tr., p. 46, Ls. 15-20.)  The district court acknowledged Bauer’s criminal history, 
stating he “had 27 adult convictions, 14 juvenile convictions, done one retained jurisdiction, over 
 5 
five years in prison, and most of [his] crimes involve theft.”  (Tr., p. 46, Ls. 23 – p. 47, L. 1.)  The 
district court acknowledged Bauer’s “serious substance-abuse-related issues” as “both an 
aggravating and mitigating factor.”  (Tr., p. 47, Ls. 2-6.)  The district court determined that Bauer 
is “not a good candidate for probation,” and that “a rider is [not] appropriate at this point . . . 
[Bauer] need[s] more drug treatment than what it has.”  (Tr., p. 47, Ls. 7-12; p. 48, Ls. 2-4.)   
Bauer argues that the mitigating factors—mental health issues, substance abuse issues, 
acceptance of responsibility, and support from his friends and family—show an abuse of 
discretion.  (Appellant’s brief, pp. 5-8.)  Bauer’s argument does not show an abuse of discretion.  
His LSI score is thirty-six, placing him in the high risk to reoffend category.  (PSI, p. 29.)  Bauer’s 
extensive criminal history consists of numerous theft charges, felony convictions, and 
opportunities on probation.  (PSI, pp. 5-21.)  The presentence investigator stated that Bauer “was 
on misdemeanor probation when he committed the instant offense and he was highly non-
compliant.”  (PSI, p. 31.)  The presentence investigator added that Bauer “continued to use 
substances and produce positive UA tests or miss his UA tests,” and stated that “[h]is probation 
officer has recommended him for revocation.”  (PSI, p. 31.)  The presentence investigator stated 
Bauer’s “failure to take responsibility for his actions in this case is concerning in terms of his 
commitment to making the necessary changes in his life,” and determined that Bauer is not 
“amenable to community supervision at this time.”  (PSI, p. 31.)   
Bauer’s extensive criminal history and opportunities on probation show that he is not 
amenable to alternative treatment.  His criminal thinking is not deterred by periods on probation, 
or short terms of incarceration.  The sentences imposed provide proper deterrence to Bauer, and 
protection to society.  Bauer’s LSI score and conduct while on pretrial release shows there is undue 
risk that he will commit a subsequent offense without a substantial period of incarceration.  Lesser 
 6 
sentences than those imposed would depreciate the seriousness of the instant offenses, and fail to 
deter Bauer’s criminal conduct.  Bauer has failed to show that the district court abused its discretion 
by sentencing him to seven years, with two years determinate for grand theft, and ten years, with 
two years determinate for burglary.  
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 28th day of September, 2021. 
 
 
        /s/ Kenneth K. Jorgensen  
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
 
      ZACHARI S. HALLETT 
      Paralegal 
 
 
 
CERTIFICATE OF SERVICE 
 
            I HEREBY CERTIFY that I have this 28th day of September, 2021, served a true and 
correct copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of 
iCourt File and Serve: 
 
KILEY A. HEFFNER  
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
                                                                          /s/ Kenneth K. Jorgensen  
                                                                        KENNETH K. JORGENSEN 
                                                                        Deputy Attorney General 
 


State v. Bauer  Respondent\u27s Brief Dckt. 48393

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State v. Whitaker Respondent's Brief Dckt. 48413 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
MARK W. OLSON 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
           Plaintiff-Respondent, 
 
v. 
 
BRIAN JAMES WHITAKER, 
 
           Defendant-Appellant. 
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NO. 48413-2020 
 
Ada County Case No. 
CR01-20-25180 
           
RESPONDENT’S BRIEF 
 
 Has Whitaker failed to demonstrate that the district court abused its sentencing discretion 
when it imposed an aggregate unified seven-year sentence with two years fixed upon Whitaker’s 
guilty pleas to possession of methamphetamine and felony eluding?  
Electronically Filed
5/5/2021 11:35 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
 2 
ARGUMENT 
 
Whitaker Has Failed To Demonstrate That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 In May 2020, an Ada County Sherriff’s Office Deputy effectuated a traffic stop on 
Whitaker’s vehicle.  (PSI, p.6.)  The officer conducted a records check and learned that 
Whitaker’s driving privileges were suspended.  (PSI, pp.6, 208.)  Whitaker acknowledged to the 
officer that his license was invalid, and was also unable to provide proof of insurance or a valid 
registration.  (PSI, p.6.)  As the officer directed Whitaker to exit the vehicle, Whitaker instead 
put his vehicle into drive and accelerated away at a high speed.  (PSI, pp.6, 209.)  The officer 
returned to his patrol vehicle and initially pursued Whitaker into downtown Boise, but then 
discontinued the pursuit.  (PSI, p.209.) 
 Several witnesses then called the police to report that Whitaker was driving recklessly 
through downtown Boise.  (Id.)  One witness told police that he saw Whitaker driving 
approximately 80 miles per hour, and through a red light.  (PSI, p.210, 212.)  Other witnesses 
saw Whitaker drive onto the pedestrian-only Boise Greenbelt trail, park his car there, run from 
the vehicle, return to the vehicle to retrieve a backpack, and then run away again.  (PSI, pp.209-
210.)  Officers located Whittaker’s parked vehicle on the Greenbelt.  (PSI, pp.6, 209.)  The 
vehicle contained a small baggie of methamphetamine.  (PSI, pp.210-211.)  The backpack 
Whitaker was seen taking from the vehicle was found nearby and contained an unused syringe.  
(PSI, p.209.)  Whitaker was arrested approximately a month later.  (PSI, p.6.)      
 The state charged Whittaker with methamphetamine possession, felony eluding, and 
driving without privileges.  (R., pp.21-22.)  Pursuant to an agreement with the state, Whittaker 
pled guilty to methamphetamine possession and felony eluding, and to two misdemeanor 
 3 
domestic battery charges (reduced from felonies) in a separate case (Aca County Case No. 
CR01-20-16609); the state agreed to dismiss the driving without privileges charge and to 
recommend an aggregate unified seven-year sentence with three years fixed on the 
methamphetamine and eluding charges.  (R., pp.33-34; 8/19/20 Tr., p.5, L.15 – p.18, L.2.)  The 
district court imposed an aggregate seven-year unified sentence with two years fixed.  (R., pp.39-
43; 10/21/20 Tr., p.19, L.1 – p.24, L.9.)  Whitaker timely appealed.  (R., pp.48-50.) 
 
B. Standard Of Review 
 
 The length of a sentence is reviewed under an abuse of discretion standard considering 
the defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) 
(citing State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 
Idaho 201, 159 P.3d 838 (2007)).    
Where a sentence is within statutory limits, the appellant bears the burden of 
demonstrating that it is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 
614, 615 (2001) (citing State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  The abuse of 
discretion test looks to whether the district court: “(1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by 
the exercise of reason.”  Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 
(2018). 
 
C. The District Court Acted Well Within Its Sentencing Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
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Idaho 732, 736, 170 P.3d 397, 401 (2007).  To establish that the sentence was excessive, the 
appellant must demonstrate that reasonable minds could not conclude the sentence was 
appropriate to accomplish the sentencing goals of protecting society, deterrence, rehabilitation, 
and retribution.  Id. at 736, 170 P.3d at 401.  A sentence is reasonable “‘if it appears necessary to 
accomplish the primary objective of protecting society and to achieve any or all of the related 
goals of deterrence, rehabilitation, or retribution.’”  State v. Bailey, 161 Idaho 887, 895-96, 392 
P.3d 1228, 1236-37 (2017) (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628 
(2015)).  It is well established that the primary sentencing consideration is protection of society, 
and that all other factors must be subservient to that end.  State v. Hunnel, 125 Idaho 623, 627, 
873 P.2d 877, 881 (1994).     
 Prior to imposing sentence in this case, the district court cited the applicable sentencing 
factors and I.C. § 19-2521, which requires the sentencing court to first consider community 
placement before imposing a term of incarceration. (10/21/20 Tr., p.19, Ls.1-10.)  After 
acknowledging mitigating factors, and discussing the dangerousness of Whitaker’s conduct in 
this case and his extensive criminal history, the district court imposed a unified aggregate seven-
year sentence with two years fixed.  (10/21/20 Tr., p.19, L.11 - p.24, L.9.)  A review of the 
record supports the court’s sentencing determination.  
 The district court was appropriately concerned with the severe danger to the community 
created by Whitaker’s conduct in this case.  The officer who initially pulled Whittaker over noted 
that the portion of the Greenbelt that Whitaker drove onto was popular with pedestrians, and that 
he personally observed dozens of pedestrians, including children, walking along this portion of 
the Greenbelt during the hour following the discovery of Whitaker’s vehicle.  (PSI, p.210.)  This 
occurred after witnesses saw Whitaker driving at a high rate of speed and running a red light in 
 5 
downtown Boise.  (PSI, p.210, 212.)  Whitaker later told the presentence investigator that he fled 
in this manner because he was “strung out,” and because the officer was taking too long to 
process the traffic stop.  (PSI, p.7.)  The district court correctly recognized that Whitaker’s 
substance abuse endangers the community.         
 A review of Whitaker’s criminal history further supports the sentences imposed.   
Whitaker has prior felony convictions for escape, distributing methamphetamine (for which an 
84-month federal prison sentence was imposed), possession of a controlled substance with intent 
to manufacture/deliver (for which an eight-year state prison sentence was imposed), theft by 
receiving stolen property, grand theft, and two prior felony convictions for eluding or evading.  
(PSI, pp.17-19.)  At least eight other felony charges against Whitaker were ultimately dismissed 
or reduced.  (Id.)  Just weeks before the incident in the present case, Whitaker was charged with 
two counts of felony domestic battery.1  (PSI, p.19.)  Another domestic assault charge, in Utah, 
was ultimately amended to simple assault.  (PSI, p.17.)  Whitaker sells drugs to support his 
$400/per week drug addiction. (PSI, p.11.)  Through his extensive criminal history, Whitaker has 
received many previous opportunities for community supervision and treatment.  (PSI, pp.11-20, 
23.)  Whitaker has been unsuccessful in these previous attempts at community supervision, in 
that his record reflects at least three probation violations and four parole violations.  (PSI, p.20.)  
 The district court specifically noted Whittaker’s LSI-R score of 32 (10/21/20 Tr., p.21, 
Ls.17-19), which places him in the high-risk to re-offend category (PSI, p.20).  The presentence 
investigator, noting Whitaker’s lack of expressed remorse, his prior rehabilitative opportunities, 
                                            
1 The PSI does not identify these two charges as felonies (See PSI, p.19), but the attorney 
comments at the sentencing hearing (10/21/20 Tr., p.5, L.22 – p.6, L.2; p.6, L.23 – p.7, L.3), and 
the iCourt Portal, (Mycourts.idaho.gov portal, State v. Whitaker, Ada County District Court Case 
No. CR01-20-16609), reveal that these charges were amended from felonies to misdemeanors in 
conjunction with the plea agreement in this case.   
 6 
and his inability to support himself in the community, recommended a term of incarceration.  
(PSI, pp.21-22.) 
On appeal, Whitaker does not take issue with any of the stated analyses as set forth by the 
district court, but instead simply asserts the existence of certain mitigating factors – including his 
troubled childhood, history of substance abuse issues, mental health issues, family support, and 
asserted willingness to be rehabilitated.  (Appellant’s brief, pp.4-9.)  However, nothing in the 
record indicates that the district court failed to consider any of these things, or chose to disregard 
the ample information about these factors presented in the presence investigation report and 
Whitaker’s sentencing argument.  Instead, the court specifically referenced Whittaker’s mental 
health and substance abuse issues, as well as Whitaker’s statements made at sentencing asserting 
his desire to change his life, and his submitted letters regarding his acceptance into certain 
treatment programs.  (10/21/20 Tr., p.19, Ls.11-20; p.21, Ls.4-12.)  The district court also 
recommended that during his incarceration, the Idaho Department of Correction provide 
Whitaker substance abuse, mental health, and thinking errors counseling – programming which, 
the court noted, would be the same programming that Whittaker would have received on a rider 
(which was Whittaker’s sentencing recommendation).  (10/21/20 Tr., p.17, Ls.1-2; p.22, L.10 – 
p.23, L.9.) 
Ultimately, the district court imposed an aggregate sentence that was one fixed year 
shorter than the sentence recommended by the state, and which contained a fixed term of 
incarceration only modestly longer than the minimum period of incarceration Whitaker would 
have faced if the court retained jurisdiction.  This was entirely reasonably in light of the danger 
Whitaker poses to the community, and Whitaker’s many prior failures to abide by the terms of 
community supervision.  
 7 
 In light of all of the factors discussed above, the district court acted well within its 
discretion to impose an aggregate unified seven-year sentence with two years fixed upon 
Whitaker’s guilty pleas to possession of methamphetamine and felony eluding.  Whitaker has 
therefore failed to demonstrate that the district court abused its sentencing discretion.  This Court 
should affirm the judgment of conviction. 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the sentencing determination of the 
district court. 
 DATED this 5th day of May, 2021. 
 
 
 
        /s/  Mark W. Olson 
      MARK W. OLSON 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 5th day of May, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
KILEY A. HEFFNER 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Mark W. Olson 
      MARK W. OLSON 
      Deputy Attorney General 
MWO/dd 


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