Students Work through Final Round of Davis Competition

 

Student Danielle Phillips at the Moot Court podium

Danielle Phillips, ‘2L advanced to the final round of the Davis Apellate Competition.

By: Stephen Edwards, 2L

Staff Writer

 

The Final Round of the John W. Davis Moot Court Competition is always a grand affair. Students and faculty gather annually to watch the culmination of countless hours of hard work by the competitors, surrounded by all the pomp and circumstance the Moot Court Executive Board can muster. On October 19th in the Millhiser Moot Court Room, this year’s competitors grappled with a problem that touched on two fundamental constitutional rights: the 2nd Amendment right to bear arms, and the 4th Amendment right to be free from unreasonable searches and seizures. These competitors—namely, Patrick Hanlon, Chase Cobb, Danielle Phillips, and Diane Gremillion—all presented eloquent arguments under the complex legal framework of the competition problem.

Imagine a confrontation between police and a gun-toting gang member whose gang’s spiritual father is Martin Van Buren, 8th President of the United States, and you have the basics of this year’s Davis problem. The problem takes place in Van Buren City, capitol of the State of Van Buren and home to “Peripheral Park,” where the infamous “Van Buren Boys” are known to perpetrate acts of drug trafficking and violence. Competition co-chair Matt Donahue told the LawNews he drew on themes from Seinfeld and his personal love for Van Buren in selecting a theme centering on the lesser-known President.

One night in Peripheral Park police come upon Harrison H. Williams, who is standing by his car with a blue bag at his feet. Mr. Williams’ facial hair is styled after that of President Van Buren, with enormous, bushy sideburns; this indicates possible affiliation with the Van Buren Boys. Additionally, Mr. Williams has a .38 caliber revolver holstered in a strap across his chest, which also features a speed-reloader accessory. With all these factors in mind, the police decide to stop and search Mr. Williams; they discover illegal drugs on his person and arrest him.

In a nutshell, this year’s Davis problem asked whether police could use the fact that a citizen is openly and lawfully carrying a firearm as a factor in deciding to perform a protective pat-down of the citizen (in 4th Amendment parlance, a Terry stop). A host of highly interesting constitutional and political questions bear on the decision of this seemingly narrow issue. Should a citizen be effectively penalized for exercising his 2nd Amendment right to carry a weapon? The problem explicitly stated that, in Van Buren City, openly carrying firearms is perfectly legal, raising the question whether a person engaged in this lawful activity should be subject to seizure by the police. Also in play is the highly topical debate about rampant police misconduct—or protecting officer safety, depending on your point of view. Should police be required to ignore the presence of a gun on a suspect’s person, despite the commonsense association of firearms with violent crime? Or are searches conducted under these circumstances just another example of widespread disrespect for constitutional rights among law enforcement? The competitors battled with these and other interesting questions in their arguments.

This year’s competitors presented their arguments to a three-judge panel composed of two sitting appellate judges and a former state Solicitor General. Judge Rhesa Barksdale of the U.S. Court of Appeals for the Fifth Circuit sat as Chief Justice; D. Arthur Kelsey, of the Virginia Supreme Court, and Elbert Lin, former Solicitor General of West Virginia, played the role of associate justices. Together, these judges made for an aggressive bench. Each competitor was subjected to a battery of questions designed to test their knowledge of the applicable law, and beyond.

Justice Kelsey in particular posed many thought-provoking questions. He asked two of the competitors whether the time had come to overrule Terry v. Ohio, one of the Supreme Court cases at the heart of the competition problem. No doubt each competitor had taken the validity of Terry for granted: the central issue in the problem, described above, simply concerned the application of the case in a specific set of circumstances. Additionally, Justice Kelsey asked one competitor whether 4th Amendment search and seizure analysis should take account of English common law relating to arrests and seizures. Ian Huyett, one of the competition’s co-chairs, was overjoyed by Justice Kelsey’s unique line of questioning: “Kelsey forced the advocates to think about the law in a philosophical way, which is often what the Supreme Court and other appellate tribunals do. We were very fortunate to have him on our panel.”

No judge on the Davis panel could be described as “sympathetic” or “forgiving” toward the competitors, but occasionally Justice Barksdale showed mercy in the form of “softball questions.” Softball questions are designed to make a point for, rather than against, a competitor’s position. Barksdale even referred to one of his questions using this term. After Diane Gremillion hesitated to answer a deceptively simple question, Barksdale smiled and admonished, “That’s called a softball question.” The audience laughed for a moment before the competition’s tense atmosphere reasserted itself.

After the final rebuttal argument by the last petitioner, the judges retired to their “chambers” (read: Moot Court jury room) to deliberate. They emerged about 15 minutes later, having selected Chase Cobb as the competition champion and Patrick Hanlon as the runner-up. Matt Donahue also stood up to announce the winners of the brief-writing portion of the competition: Brett Lawrence took first place, with Patrick Hanlon as the runner-up.

The panel of judges concluded by offering advice and compliments to the competitors. Among other things, the judges praised the competitors for their thorough preparation and mastery of the applicable law, saying they gave a better performance than most of the real advocates who argue in their respective courtrooms. Every judge at every Moot Court competition I have ever attended has said something along these lines—and meant it, too—leading me to wonder whether Washington & Lee has a knack for producing superb appellate advocates, or the average attorney at an appellate court is just clueless. I like to think the former holds true.

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