Petition for Writ of Certiorari — David Lesh, Petitioner v. United States

No. 24-_____

IN THE

DAVID LESH,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Kara M. Rollins

Jenin Younes

Philip Hamburger

Mark S. Chenoweth

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax Drive

Suite 300

Arlington, VA 22203

Jeffrey L. Fisher

Counsel of Record

Easha Anand

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

jlfisher@stanford.edu

QUESTION PRESENTED

Article III of the Constitution provides that “[t]he

Trial of all Crimes, except in Cases of Impeachment,

shall be by Jury.” And the Sixth Amendment provides

that “[i]n all criminal prosecutions,” the accused shall

enjoy the right to trial by jury.

The question presented is: Whether the

Constitution’s dual guarantee of trial by jury contains

an unstated exception for “petty offenses.”

ii

RELATED PROCEEDINGS

United States Court of Appeals (10th Cir.):

United States v. Lesh, No. 23-1074 (July 16, 2024)

United States District Court (D. Colo.):

United States v. Lesh, Crim. No. 20-PO-07016 (Mar.

10, 2023)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

RELATED PROCEEDINGS ........................................ ii

TABLE OF AUTHORITIES ........................................ v

PETITION FOR A WRIT OF CERTIORARI .............. 1

OPINIONS BELOW ..................................................... 1

JURISDICTION ........................................................... 1

RELEVANT CONSTITUTIONAL PROVISIONS ...... 1

INTRODUCTION......................................................... 2

STATEMENT OF THE CASE ..................................... 3

A. Legal background ........................................... 3

B. Factual and procedural background ............. 8

REASONS FOR GRANTING THE WRIT ................ 13

I.

The petty-offense exception flouts the text,

structure, and history of the Constitution’s

jury-trial provisions ............................................ 13

A. Text ............................................................... 13

B. Structure ...................................................... 18

C. History .......................................................... 20

II. The stare decisis factors support

reconsidering the petty-offense exception ......... 23

A. Egregiously wrong ....................................... 23

B. Consequences ............................................... 27

C. Reliance interests......................................... 30

III. This case provides an excellent vehicle for

reconsidering the petty-offense exception ......... 31

CONCLUSION ........................................................... 33

iv

APPENDICES

Appendix A, Opinion of the U.S. Court of

Appeals for the Tenth Circuit (July 16,

2024) .................................................................... 1a

Appendix B, Order of the District Court

Affirming Petitioner’s Convictions (March

10, 2023) ............................................................ 32a

Appendix C, Magistrate Judge’s Memorandum

of Decision and Order (October 22, 2021) ........ 49a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013)...................................... 2, 27, 31

Apodaca v. Oregon,

406 U.S. 404 (1972)................................................ 2

Argersinger v. Hamlin,

407 U.S. 25 (1972)................................................ 18

Baldwin v. New York,

399 U.S. 66 (1970).................................. 2, 7, 24, 29

Blakely v. Washington,

542 U.S. 296 (2004).......................................... 4, 24

Blanton v. City of North Las Vegas,

489 U.S. 538 (1989)...................... 2, 6, 7, 24, 25, 29

Callan v. Wilson,

127 U.S. 540 (1888).................. 5, 16, 20, 21, 25, 26

Carella v. California,

491 U.S. 263 (1989).............................................. 32

Crawford v. Washington,

541 U.S. 36 (2004).................................... 20, 22, 27

District of Columbia v. Clawans,

300 U.S. 617 (1937)............................................. 5-7

Duncan v. Louisiana,

391 U.S. 145 (1968).......... 2, 6, 7, 20, 24, 27, 29, 32

Edwards v. Vannoy,

141 S. Ct. 1547 (2021).......................................... 30

Ehmer v. United States,

145 S. Ct. ___ (2024) (No. 24-5160) ............... 21, 31

vi

Erlinger v. United States,

144 S. Ct. 1840 (2024).......................................... 24

Gamble v. United States,

587 U.S. 678 (2019)........................................ 23, 31

Geter v. Comm’rs for Tobacco Inspection,

1 S.C.L. (1 Bay) 354 (S.C. 1794) .......................... 22

Gideon v. Wainwright,

372 U.S. 335 (1963) ............................................. 19

Giles v. California,

554 U.S. 353 (2008).............................................. 20

In re Glenn,

54 Md. 572 (Md. 1880) ......................................... 21

Harris v. United States,

536 U.S. 545 (2002)................................................ 2

Hildwin v. Florida,

490 U.S. 638 (1989)................................................ 2

Holland v. Illinois,

493 U.S. 474 (1990).............................................. 20

Hurst v. Florida,

577 U.S. 92 (2016).................................................. 2

Johnson v. United States,

576 U.S. 591 (2015).............................................. 25

Lewis v. United States,

518 U.S. 322 (1996)...................................... 3, 6, 28

Life Techs. Corp. v. Promega Corp.,

580 U.S. 140 (2017).............................................. 17

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................... 25

vii

Ex parte Marx,

9 S.E. 475 (Va. 1889) ........................................... 21

McMillan v. Pennsylvania,

477 U.S. 79 (1986).................................................. 2

Oil States Energy Servs. v. Greene’s Energy Grp.,

584 U.S. 325 (2018).............................................. 25

Ramos v. Louisiana,

140 S. Ct. 1390 (2020)........ 2, 20, 23, 24, 27, 30, 31

Ex parte Reggel,

114 U.S. 642 (1885).............................................. 16

Ring v. Arizona,

536 U.S. 584 (2002)................................................ 2

Schick v. United States,

195 U.S. 65 (1904)..................... 5, 15, 16, 20-22, 26

Scott v. Illinois,

440 U.S. 367 (1979).............................................. 19

SEC v. Jarkesy,

144 S. Ct. 2117 (2024).......................................... 25

Spaziano v. Florida,

468 U.S. 447 (1984)................................................ 2

Turner v. Rogers,

564 U.S. 431 (2011).............................................. 15

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006).............................................. 19

Walton v. Arizona,

497 U.S. 639 (1990)................................................ 2

Williams v. Florida,

399 U.S. 78 (1970)................................................ 28

viii

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 10 ....................................... 19

U.S. Const. art. III ...................... 2, 4, 12, 15-17, 26, 31

U.S. Const. art. III, § 2, cl. 3 .................. 1, 4, 12, 13, 15

U.S. Const. art. IV, § 2, cl. 2 ...................................... 16

U.S. Const. amend. V ................................................. 19

U.S. Const. amend. VI

............... 1, 2, 4, 6, 12, 13, 15, 17-20, 23, 25, 26, 31

U.S. Const. amend. VII ........................................ 14, 25

Statutes

Judiciary Act of 1789, ch. 20, 1 Stat. 73 (Sept.

24, 1789) ................................................................. 4

18 U.S.C. § 19 ............................................................... 6

18 U.S.C. § 3559(a) ..................................................... 16

28 U.S.C. § 1254(1) ....................................................... 1

Regulations

36 C.F.R. § 261.10(c) ...................................... 10, 12, 32

36 C.F.R. § 261.14 ........................................................ 9

Other Authorities

Adams, John, Diary Entry (Feb. 12, 1771), in

Works of John Adams (C. Adams ed., 1850) ........ 4

Blackstone, William, Commentaries on the

Laws of England (1769)

..................................................... 4, 7, 13-17, 20, 22

Bouvier, John, A Legal Dictionary (2d ed. 1843) ...... 14

ix

Burn, Richard, The Justice of the Peace, and

Parish Officer (1756) ........................................... 22

D.C. Criminal Code Reform Commission,

Advisory Group Memorandum #31 (Feb. 25,

2020) ................................................................. 6, 30

The Federalist No. 83 (Hamilton) (Clinton

Rossiter ed., 1961) ..................................... 4, 17, 27

Frankfurter, Felix & Corcoran, Thomas, Petty

Federal Offenses and the Constitutional

Guaranty of Trial by Jury,

39 Harv. L. Rev. 917 (1926)................................. 21

Gorsuch, Neil & Nitze, Janie, Over Ruled: The

Human Toll of Too Much Law (2024) ................. 29

Hamburger, Philip, Is Administrative Law

Unlawful? (2014).................................................. 22

Johnson, Samuel, A Dictionary of the English

Language (1773) ............................................ 13, 17

Kaye, George, Petty Offenders Have No Peers!,

26 U. Chi. L. Rev. 245 (1959) .......................... 8, 27

King, John D., Juries, Democracy, and Petty

Crime,

24 U. Pa. J. Const. L. 817 (2022) .................... 8, 27

Lynch, Timothy, Rethinking the Petty

Offense Doctrine,

4 Kan. J. L. & Pub. Pol’y 7 (1994) ................... 8, 27

McCormack, Bridget, Economic Incarceration,

25 Windsor Y.B. of Access to Just. 223

(2007) .................................................................... 28

Murphy, Colleen P., The Narrowing of the

Entitlement to Criminal Jury Trial,

1997 Wis. L. Rev. 133 (1997) ................................. 8

x

Natapoff, Alexandra, Misdemeanors,

85 S. Cal. L. Rev. 1313 (2012) ............................. 28

Roth, Andrea, The Lost Right to Jury Trial

in “All” Criminal Prosecutions,

72 Duke L.J. 599 (2022)

........................................ 5, 8, 14, 15, 17, 22, 26, 27

Siegel, Stephen A., Textualism on Trial: Article

III’s Jury Trial Provision, the “Petty

Offense” Exception, and Other Departures

from Clear Constitutional Text,

51 Hous. L. Rev. 89 (2013) .................................... 8

Webster, Noah, American Dictionary Of The

English Language (1828) .................................... 14

PETITION FOR A WRIT OF CERTIORARI

Petitioner David Lesh respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the Tenth Circuit (Pet. App. 1a31a) is reported at 107 F.4th 1239. The relevant order

of the magistrate judge (Pet. App. 49a-67a) is

unpublished but available at 2021 WL 4941013. The

order of the district court affirming the magistrate

judge’s conclusions (Pet. App. 32a-48a) is unpublished.

JURISDICTION

The judgment of the court of appeals was entered

on July 16, 2024. Pet. App. 1a. On September 17, 2024,

Justice Gorsuch extended the time in which to file a

petition for certiorari until November 13, 2024. See

No. 24A270. On November 8, 2024, Justice Gorsuch

further extended that time to December 13, 2024. Id.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISIONS

Article III, Section 2, Clause 3 of the Constitution

states: “The Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury.”

The Sixth Amendment to the Constitution states

in relevant part: “In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public

trial, by an impartial jury.”

2

INTRODUCTION

In recent years, this Court has overruled several

cases that mistakenly constricted the right to jury

trial. See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390

(2020) (overruling Apodaca v. Oregon, 406 U.S. 404

(1972)); Hurst v. Florida, 577 U.S. 92 (2016)

(overruling Hildwin v. Florida, 490 U.S. 638 (1989),

and Spaziano v. Florida, 468 U.S. 447 (1984));

Alleyne v. United States, 570 U.S. 99 (2013)

(overruling McMillan v. Pennsylvania, 477 U.S. 79

(1986), and Harris v. United States, 536 U.S. 545

(2002)); and Ring v. Arizona, 536 U.S. 584 (2002)

(overruling Walton v. Arizona, 497 U.S. 639 (1990)).

This case presents an equally compelling instance in

which the Court should do the same.

The Constitution guarantees a right to jury trial

in “all” criminal prosecutions not just once but twice—

in Article III and in the Sixth Amendment—with no

exception for so-called petty offenses. Yet “[m]any

years ago this Court, without the necessity of an

amendment pursuant to Article V, decided that ‘all

crimes’ did not mean ‘all crimes,’ but meant only ‘all

serious crimes.’” Baldwin v. New York, 399 U.S. 66, 75

(1970) (Black, J., concurring in the judgment). Worse

yet, the Court did so initially in dicta, and without the

benefit of meaningful briefing. The Court later

justified the exception on grounds of balancing and

efficiency. See Duncan v. Louisiana, 391 U.S. 145, 160

(1968); Blanton v. City of North Las Vegas, 489 U.S.

538, 542-43 (1989). Today, the petty-offense exception

denies criminal defendants the right to jury trial when

they are charged with crimes punishable by a

maximum of six months’ imprisonment and that are

3

not otherwise judicially classified as “serious”— even

when charged with multiple counts punishable by six

months each. Lewis v. United States, 518 U.S. 322,

326 (1996).

This departure from the plain and unambiguous

text of the Constitution violates a core promise of the

Framers: that, in a criminal case, a jury of one’s peers

would always stand between the accused and the

power of the state to deprive him of liberty or property.

It also makes a hash of the Constitution’s broader

structure, rendering other carefully calibrated

language regulating criminal procedure either

meaningless or nonsensical. And the petty-offense

exception flouts the historical common-law rule the

Constitution was meant to render inviolate.

As two of the three judges on the panel below have

urged, see Pet. App. 26a-31a (Tymkovich, J., joined by

Rossman, J., concurring), this Court should take the

opportunity to fix this anomaly and restore the

original scope of the jury-trial right. In the many

decades since the petty-offense exception was minted,

no party in a merits case has challenged its validity.

And this case presents an ideal vehicle for a longoverdue airing of this issue and attendant stare decisis

considerations. The Court should grant the petition.

STATEMENT OF THE CASE

A. Legal background

1. For hundreds of years under the common law of

England, before the Founding of this country, all

criminal defendants were entitled to trial by jury.

Blackstone considered this right “the glory of the

English law”—“the most transcendent privilege which

4

any subject can enjoy.” 3 William Blackstone,

Commentaries on the Laws of England *379 (1769).

That was because the requirement of a jury ensured

that no one in a criminal prosecution could be deprived

of his liberty or property “but by the unanimous

consent of twelve of his neighbours and equals.” Id.

The Framers agreed the right to jury trial was

indispensable. In fact, many viewed it as the “very

palladium of free government.” The Federalist No. 83,

at 467 (Hamilton) (Clinton Rossiter ed., 1961); see also

John Adams, Diary Entry (Feb. 12, 1771), in 2 Works

of John Adams 252-53 (C. Adams ed., 1850). So vital

was the right at the Founding that it was one of the

few individual rights enshrined in the original

Constitution. Article III explicitly provides: “The Trial

of all Crimes, except in Cases of Impeachment, shall

be by Jury.” U.S. Const. art. III, § 2, cl. 3 (emphasis

added). And the Bill of Rights reinforced that

guarantee, providing in the Sixth Amendment that

defendants are entitled to a trial by jury “in all

criminal prosecutions.” U.S. Const. amend. VI. The

upshot of these provisions is simple yet profound:

“Just as suffrage ensures the people’s ultimate control

in the legislative and executive branches, jury trial is

meant to ensure their control in the judiciary.”

Blakely v. Washington, 542 U.S. 296, 306 (2004).

Congress likewise sought from the very beginning

to safeguard the jury-trial right. The Judiciary Act of

1789—enacted one day before the Bill of Rights was

introduced—provided that “the trial of issues in fact,

in the district courts, in all causes except civil causes

of admiralty and maritime jurisdiction, shall be by

jury.” Ch. 20, 1 Stat. 73, § 9 (emphasis added). And for

over a century after the Founding, federal courts

5

afforded all criminal defendants—including those

charged with offenses that carried relatively minor

punishments—the right to jury trial. See Andrea

Roth, The Lost Right to Jury Trial in “All” Criminal

Prosecutions, 72 Duke L.J. 599, 608-09 (2022).

2. In a smattering of decisions beginning a century

after the Founding, this Court—almost offhandedly—

fashioned an exception to the unqualified

constitutional right to jury trial in all criminal

prosecutions.

In Callan v. Wilson, 127 U.S. 540 (1888), the

defendants were charged with conspiracy to commit

extortion and sentenced to 30 days in jail. Id. at 54042. The Court confirmed that the constitutional right

to trial by jury applies to misdemeanors, including

conspiracy. Id. at 549, 555. In dicta, however, the

Court suggested that “there are certain minor or petty

offences that may be proceeded against summarily,

and without a jury.” Id. at 552.

Not long thereafter, again without substantial

briefing or adversarial disagreement on the issue, the

Court turned this dicta into law. In Schick v. United

States, 195 U.S. 65 (1904), the defendants were

charged with purchasing unbranded oleomargarine,

an offense punishable only by a fine of $50. Id. at 67.

The defendants had waived their right to a jury trial

and did not challenge the validity of that waiver. Id.

The Court nevertheless considered whether the

waivers were valid. Id. The Court held that they were,

on the ground that when it comes to “petty offenses”

such as the charge at issue, “there is no constitutional

requirement of a jury” at all. Id. at 68; see also District

of Columbia v. Clawans, 300 U.S. 617, 624-25 (1937)

6

(holding that an offense punishable by a 90-day

maximum sentence was also “petty” and could

therefore be tried without a jury).

When this Court incorporated the right to jury

trial against the states, it carried forward the pettyoffense exception. In Duncan v. Louisiana, 391 U.S.

145 (1968), the defendant was charged with an offense

punishable by two years in prison. Id. at 146. The

Court held that the jury-trial right applies to the

states and that the Sixth Amendment entitled the

defendant to a jury trial. Id. at 149-50. Though

unnecessary to this decision, the Court added that

“[s]o-called petty offenses” were “exempt from the

otherwise comprehensive language of the Sixth

Amendment’s jury trial provisions.” Id. at 160. In

subsequent cases, the Court applied the petty-offense

exception to condone denials of jury trials to

defendants charged with crimes punishable by up to

six months in prison. See Blanton v. City of North Las

Vegas, 489 U.S. 538, 542-44 (1989); Lewis v. United

States, 518 U.S. 322, 326-27 (1996).

Most states nevertheless have continued to

guarantee the right to jury trials for all criminal

charges, including minor crimes punishable by

minimal or no prison time. See Memorandum #31 from

the D.C. Crim. Code Reform Comm’n to the Code

Revision Advisory Grp.: App. A (Feb. 25, 2020),

https://perma.cc/V8UP-SPS2. Yet some states have

exceptions to this guarantee for low-level offenses, and

Congress has created a category of “petty offenses”

that are punishable without providing a right to jury

trial. See id.; 18 U.S.C. § 19.

7

3. Against this modern backdrop, the Court has

acknowledged that its approach departs from the

“common law,” which applied the right to jury trial

even to so-called petty offenses. Blanton, 489 U.S. at

541; see also 4 William Blackstone, Commentaries

*280-82, *300. And the Court has “recognized that [a

prison term of up to six months] will seldom be viewed

by the defendant as ‘trivial’ or ‘petty.’” Blanton, 489

U.S. at 542 (citation omitted). But the Court has

concluded that “the disadvantages of such a sentence,

‘onerous though they may be, may be outweighed by

the benefits that result from speedy and inexpensive

nonjury adjudications.’” Id. at 543 (quoting Baldwin,

399 U.S. at 73); see also Duncan, 391 U.S. at 160.

Beyond the departure from the common law,

several Justices over the years have objected to the

entire enterprise of determining whether the

defendant has a right to jury trial according to

“whether the offense charged is a ‘petty’ or ‘serious’

one.” Baldwin, 399 U.S. at 74 (Black, J., joined by

Douglas, J., concurring in the judgment); see also

Clawans, 300 U.S. at 633-34 (McReynolds & Butler,

JJ., concurring in the judgment). These Justices have

called this approach a “judicial mutilation of our

written Constitution”—an impermissible substitution

of judicial “balancing” for the plain text of our

Charter’s jury-trial provisions. See Baldwin, 339 U.S.

at 75 (Black, J., joined by Douglas, J., concurring in

the judgment) (internal quotation marks omitted). In

their view, the Framers “engaged in all the balancing

necessary. They decided that the value of a jury trial

far outweighed its costs for ‘all crimes’ and in ‘all

criminal prosecutions.’” Id.

8

Numerous scholars have similarly decried the

petty-offense exception. See, e.g., Roth, 72 Duke L.J.;

John D. King, Juries, Democracy, and Petty Crime, 24

U. Pa. J. Const. L. 817 (2022); Stephen A. Siegel,

Textualism on Trial: Article III’s Jury Trial Provision,

the “Petty Offense” Exception, and Other Departures

from Clear Constitutional Text, 51 Hous. L. Rev. 89

(2013); Colleen P. Murphy, The Narrowing of the

Entitlement to Criminal Jury Trial, 1997 Wis. L. Rev.

133 (1997); Timothy Lynch, Rethinking the Petty

Offense Doctrine, 4 Kan. J. L. & Pub. Pol’y 7 (1994);

George Kaye, Petty Offenders Have No Peers!, 26 U.

Chi. L. Rev. 245 (1959).

B. Factual and procedural background

1. Petitioner David Lesh is a former professional

skier, outdoor enthusiast, and owner of an outdoor

apparel brand called Virtika. Pet. App. 2a, 4a. He is

also something of a social media “influencer” and often

promotes his brand through his Instagram account. Id.

16a. His overall approach is that of a rebel, defying

convention and decrying the corporatization and

overregulation of public lands.

In 2020, petitioner posted photos to his Instagram

account of a person driving a snowmobile over a jump

in a winter terrain park while another individual in

the foreground watches. Pet. App. 34a. The driver is

covered head-to-toe in winter gear; there is no way to

make out the driver’s face or any other identifying

features.1 The caption reads: “Solid park sesh, no lift

ticket needed.” Id. 33a. That same day, employees at

1

Photos involved in this case can be viewed here:

https://perma.cc/9RM7-6E2H.

9

the Keystone Resort in Colorado discovered someone

had ridden a snowmobile around the resort’s terrain

park. Id. 34a. At that time, Keystone was closed due to

the COVID-19 pandemic. Id.

A few months later, petitioner posted two more

provacative images he later revealed were

“photoshopped”—that is, not real. The first appeared

to be a photo of himself standing in Hanging Lake, a

hiking spot near Glenwood Springs, Colorado, where

people are forbidden from entering the pristine

turquoise water. Pet. App. 4a. The second appeared to

show petitioner defecating in Maroon Lake near

Aspen, another iconic location. Id.

In the wake of these photos, petitioner became the

subject of media coverage. See, e.g., Nick Paumgarten,

Trolling the Great Outdoors, The New Yorker

(Jan. 11, 2021). While some were offended by

petitioner’s behavior, others flocked to his company’s

website, increasing his sales by 30 percent. Id. Still

others praised him as a “trolling aficionado” whose

“free spirit” “promot[ed] freedom.” See David Lesh

(@davidlesh), Instagram, https://perma.cc/9RM76E2H.

2. Fed up with petitioner’s antics, the Government

decided to investigate him. Federal prosecutors then

charged petitioner with operating an “over-snow

vehicle” off designated routes on lands administered

by the National Forest Service, in violation of 36

C.F.R. § 261.14. Pet. App. 4a. (Keystone Resort is

located within the White River National Forest.) The

Government also alleged five separate criminal

violations related to his photo purporting to show him

standing in Hanging Lake. Id. 4a-5a.

10

After it came to light that Petitioner had

fabricated the images of himself in Hanging and

Maroon Lakes, the Government dropped the charges

related to activity purportedly represented in the

photos. Pet. App. 4a-5a.

At the same time, the Government doubled down

on its prosecution related to petitioner’s alleged

snowmobiling within Keystone Resort. Pet. App. 5a. In

addition to pressing ahead with its charge of operating

a snowmobile off a designated route, the Government

next alleged that Mr. Lesh conducted “work activity”

on national forest land without a permit, in violation

of 36 C.F.R. § 261.10(c). Id. Each of these crimes is

punishable by up to six months in prison and a

financial penalty of up to $5,000. Id. 27a-28a n.3.

As the case proceeded toward trial before the

magistrate judge, petitioner asked to be tried by a jury

of his peers. Petr. C.A. Br. 5-6. The Government

opposed this request and the magistrate judge denied

it, instead holding a bench trial. See id.; Pet. App. 5a.

At the one-day trial, petitioner maintained that he

was not the person depicted in the snowmobiling

photos—and he even presented two witnesses saying

they were the individuals in the photos. Petr. C.A. Br.

8-9. Petitioner also contended that the photos did not

depict criminal activity in any event. In particular, he

argued that the photos did not depict any “work

activity” because, referring to the words of the

relevant regulation, no commercial “merchandise” was

sold or being “offered for sale.” Id. 8 (quoting 36 C.F.R.

§ 261.10(c)). As to the “off designated route” count,

petitioner contended that no evidence showed the

11

Forest Service had made known where snowmobiling

was and was not permitted in the Keystone area. Id.

The magistrate judge found petitioner guilty on

both counts. Pet. App. 66a. The judge found that the

photos, coupled with cryptic statements petitioner

later made on social media, established beyond a

reasonable doubt that he was the snowmobiler in the

photos. Id. 61a. The judge also concluded that the

photos depicted “work activity” because they were

designed to draw attention to petitioner’s outdoor

clothing business—and did, in fact, increase sales. Id.

64a-65a. Finally, after apparently conducting his own

research on the internet, the judge took “judicial

notice” of a “winter motor vehicle use map” that the

Forest Service had posted online, and he found that

the map, plus testimony the Government submitted

regarding on-site signage, adequately established that

petitioner was “outside of the roads, trails, and areas

designated for over-snow vehicle use.” Id. 61a n.5.

After a sentencing hearing, the judge ordered

petitioner to pay $10,050—the maximum permissible

penalty for each count, plus two $25 special

assessments. Pet. App. 5a. The judge also sentenced

petitioner to 160 hours of community service. Id.

The district judge affirmed the magistrate judge’s

decision. Pet. App. 32a-48a. The district judge

observed that “as a matter of first principles,”

petitioner’s argument for a jury trial was “not

unpersuasive.” Id. 36a. But the judge acknowledged

that “here in an inferior court, first principles must

yield to binding precedent.” Id. 36a-37a. The district

court thus upheld petitioner’s convictions. Id. 48a.

12

3. The Tenth Circuit affirmed in part and reversed

in part. Pet. App. 2a. The court of appeals concluded

that there was insufficient evidence to find the

snowmobiling at issue was a “work activity or service”

under Section 261.10(c). Id. 24a. The court, however,

upheld petitioner’s conviction for improperly using an

over-snow vehicle on national forest land. Id. 11a.

The court also rejected petitioner’s argument that

he was deprived of his constitutional right to trial by

jury. Pet. App. 24a-25a. The Tenth Circuit

acknowledged that the Constitution guarantees a jury

trial for “all crimes,” U.S. Const. art. III, § 2, cl. 3, and

“[i]n all criminal prosecutions,” id. amend. VI. Pet.

App. 24a. Yet because petitioner faced no more than

six months in prison for either of the counts with

which he had been charged, the court considered itself

bound by this Court’s petty-offense exception to hold

petitioner was not entitled to trial by jury. Id.

Judge Tymkovich, joined by Judge Rossman,

issued a concurrence. Pet. App. 26a-31a. They

recognized that “prevailing precedent” required the

court to reject petitioner’s jury-trial claim. Id. 26a. But

they called for this Court to conduct “a closer

examination” of “the correct scope of the Constitution’s

right to a trial by jury.” Id.

In particular, the concurring judges observed that

the petty-offense doctrine appears to “disregard [] the

text of Article III and the Sixth Amendment.” Pet.

App. 28a. They also cited recent scholarship

demonstrating that the doctrine “is incompatible with

the original public understanding of the Constitution.”

Id. 29a. Finally, the judges stressed that the

doctrine—which “directs the judiciary to rely

13

primarily on the legislative branch’s ‘judgment’” about

when the right to jury trial is necessary—“abdicate[s]”

“the judicial imperative” of enforcing the right to jury

trial. Id. 30a.

REASONS FOR GRANTING THE WRIT

The petty-offense exception flouts the text,

structure, and history of the Constitution’s jury-trial

provisions. What’s more, it stands on shaky precedent

reached with sparse briefing and has never been

subjected to serious adversarial testing. This petition

provides an ideal vehicle for the Court to fully address

this important and recurring issue.

I.

The petty-offense exception flouts the text,

structure, and history of the Constitution’s jurytrial provisions

A. Text

The Constitution guarantees a right to jury trial

for “all criminal prosecutions” and for “all crimes”

(save cases of impeachment). U.S. Const. amend. VI;

id. art. III, § 2, cl. 3. Petty offenses fall squarely within

this categorical language.

1. To state what should be obvious: Prosecutions

for crimes punishable by six months in prison are

“criminal prosecutions.” U.S. Const. amend. VI.

Founding-era dictionaries defined “criminal” to mean

merely “[n]ot civil.”2 And Blackstone’s discussion of the

2

1 Samuel Johnson, A Dictionary of the English Language

(1773) (defining “criminal” as “Not civil; as a criminal

prosecution.”), https://perma.cc/7JSM-KSTN; see also Noah

Webster, American Dictionary Of The English Language (1828)

14

“criminal” law commences by distinguishing the prior

discussion of “civil injuries.” 4 William Blackstone,

Commentaries *1.

Moreover, dictionaries and treatises defined

“prosecution” as “the institution or commencement

and continuance of a criminal suit.”3 There was no

carve-out for minor charges; “the term ‘prosecution’

typically include[d] any criminal proceeding, whether

serious or minor.” Andrea Roth, The Lost Right to Jury

Trial in “All” Criminal Prosecutions, 72 Duke L.J. 599,

638 (2022); see also 4 William Blackstone,

Commentaries *300-01 (classifying “presentments of

petty offenses” as a mode of “prosecution”).

Accordingly, the Framers understood the phrase

“criminal prosecutions” as simply a way to

differentiate criminal trials (the subject of the Sixth

Amendment) from civil trials (the subject of the

Seventh Amendment). See Roth, 72 Duke L.J. at 638;

see also, e.g., Turner v. Rogers, 564 U.S. 431, 441

[hereinafter Webster] (defining “criminal” as “opposed to civil”),

https://perma.cc/RT4F-6B9W.

3

Webster (defining “prosecution”), https://perma.cc/5L3U28DJ; see also id. (defining “criminal” as “a person indicted or

charged with a public offense, and one who is found guilty”),

https://perma.cc/RT4F-6B9W); id. (explaining that “Crimes and

misdemeanors” are “punishable by indictment, information, or

public prosecution” while defining “crime”), https://perma.cc/

Z6CX-PQDN; II John Bouvier, A Legal Dictionary 382 (2d ed.

1843) (defining “prosecution” as a case initiated by “indictment”

and “by an information” “to bring a supposed offender to justice

and punishment by due course of law”); 4 William Blackstone,

Commentaries *301-12 (explaining that a “prosecution” begins

with an indictment, presentment, or information and is a “step

towards the punishment of offenders”).

15

(2011) (“[T]he Sixth Amendment does not govern civil

cases.”). That historical definition controls here. The

Government charged petitioner by information with

committing crimes and sought to convict him at trial

and impose criminal punishment. Pet. App. 4a-5a. No

one would call this anything other than a “criminal

prosecution.”

2. Article III independently dictates that the jurytrial right encompasses petty offenses. The Jury Trial

Clause of Article III covers trials in federal court “of

all crimes.” U.S. Const. art. III, § 2, cl. 3 (emphasis

added). Founding-era dictionaries and treatises

defined the word “crime” broadly to include the full

range of criminal offenses, “includ[ing] petty crimes.”

Roth, 72 Duke L.J. at 637.

In Schick v. United States, 195 U.S. 65 (1904) this

Court questioned the applicability of that broad

definition, suggesting that Blackstone’s treatise

supported a more limited definition of “crime.” Id. at

69. In the passage the Court quoted, Blackstone noted

that in “common usage,” the term “crimes” was

sometimes used to mean “offenses . . . of a deeper and

more atrocious dye; while smaller faults, and

omissions of less consequence” were referred to “under

the gentler name of ‘misdemeanors’ only.” Id. (quoting

4 William Blackstone, Commentaries *5). But the

Court’s reference to this isolated passage was

misguided thrice over.

First, Blackstone explained in the very same

sentence that the “general definition” of “crime”

“comprehends both crimes and misdemeanors; which

properly speaking, are mere synonymous terms.” 4

William Blackstone, Commentaries *5 (emphasis

16

added). In other words, Blackstone’s point about

“common usage” was simply a point about colloquial

speech: Sometimes, people speak of “crimes” and

“misdemeanors” separately. But in actuality, no one

has ever doubted that—as a legal matter—

misdemeanors, too, are crimes. Lest there be any

doubt, Blackstone presumed that in any prosecution

by information—including for “misdemeanors”—the

defendant was entitled to a “trial by jury.” Id. at *30910.

Second, even the Schick Court did not hold that

misdemeanors are not “crimes.” To the contrary, the

Court emphasized it was “not go[ing] beyond” its

previous decision in Callan v. Wilson, 127 U.S. 540

(1888), which expressly held that the category of jurydemandable “crimes” “embraces as well some classes

of misdemeanors.” See Schick, 195 U.S. at 70; Callan,

127 U.S. at 549. Nor has the Court ever suggested

since that its test for “petty offenses” encompasses all

misdemeanors. To the contrary, the Court’s current

test does not reach any offense punishable by more

than six months in prison, see infra at 29, even though

certain misdemeanors can be punishable by up to one

year’s imprisonment, 18 U.S.C. § 3559(a).4

4

Holding that the term “crimes” in Article III excludes

misdemeanors would also be inconsistent with the Constitution’s

Interstate Extradition Clause. That Clause empowers states to

demand the return of any person charged “with Treason, Felony,

or other Crime” who has since fled its jurisdiction. U.S. Const.

art. IV, § 2, cl. 2. And the Court has held that the phrase “other

Crime” encompasses “every offense against the laws of the

demanding state, without exception as to the nature of the

crime.” Ex parte Reggel, 114 U.S. 642, 650 (1885).

17

Third, even if the word “crimes” in Article III were

somehow ambiguous, the Sixth Amendment is not. As

explained above, the Sixth Amendment applies in all

“criminal prosecutions”—a phrase that indisputably

includes prosecutions for petty offenses. See supra at

13-15. “Given that the requirement of a jury in ‘all

Crimes’ in Article III was restated as ‘all criminal

prosecutions’ in the Sixth Amendment, any relevance

of Blackstone’s note of the colloquial use of ‘crime’ to

mean particularly atrocious acts seems strained.”

Roth, 72 Duke L.J. at 618 (footnotes omitted).

3. The word “all” in the phrases “all criminal

prosecutions” and “all crimes” confirms beyond debate

that the Constitution’s jury-trial guarantee applies to

petty offenses. At the Founding, as now, all meant “the

entire quantity, without reference to relative

importance.” Life Techs. Corp. v. Promega Corp., 580

U.S. 140, 146 (2017); see also Samuel Johnson, A

Dictionary of the English Language (1773) (defining

“all” as “[b]eing the whole quantity; every part”),

https://perma.cc/6QC8-5NMS. If the Framers had

intended to allow legislatures or courts to provide

juries only in some criminal prosecutions, they would

not have included the word “all.” The only function of

the word “all” is to ward off any suggestion that the

right to jury trial could be limited to only a subset of

more serious “criminal prosecutions” or “crimes.”

Alexander Hamilton said as much: Because “arbitrary

punishments upon arbitrary convictions” fuel “the

great engines of judicial despotism,” the Constitution

“amply provided for” the “trial by jury in criminal

cases.” The Federalist No. 83, at 467 (Hamilton)

(Clinton Rossiter ed., 1961).

18

B. Structure

1. The structure of the Sixth Amendment further

undermines the petty-offense exception. The Sixth

Amendment enumerates a total of nine rights,

including the right to jury trial, that apply in “all

criminal prosecutions.” Those rights are: (1) a speedy

trial, (2) a public trial, (3) a trial by jury, (4) an

impartial jury, (5) a jury drawn from the vicinity of the

crime

(vicinage),

(6) notice

of

accusation,

(7) confrontation, (8) compulsory process for obtaining

witnesses, and (9) aid of counsel. See U.S. Const.

amend. VI.

If the phrase “all criminal prosecutions” contains

an unstated exception for petty crimes, it should follow

that every other Sixth Amendment right is similarly

cabined. That would mean that the Constitution would

have allowed the magistrate judge here to deny

petitioner all of the other rights enumerated in the

Sixth Amendment as well. The judge, for example,

could have denied him any right to the assistance of

retained counsel, refused to allow him to confront and

cross-examine the witnesses against him, and

precluded him from issuing subpoenas for witnesses to

testify in his favor.

But, in fact, the magistrate could not have done

so. This Court has “never limited” the reach of any of

these other rights to non-petty or otherwise “serious

offenses.” Argersinger v. Hamlin, 407 U.S. 25, 27-31

(1972) (rejecting petty-offense exception for the right

to the assistance of retained counsel; discussing public

trial, notice of accusation, confrontation, and

compulsory process rights). Rather, “the right to jury

trial [is] the only Sixth Amendment right applicable to

19

the States that ha[s] been held inapplicable to ‘petty

offenses.’” Scott v. Illinois, 440 U.S. 367, 378 n.5 (1979)

(Brennan, J., dissenting).5

This makes no sense. As a matter of grammar, the

phrase “all criminal prosecutions” modifies the entire

sentence and thus should have a consistent meaning

across it. Equally important, it makes sense to apply

all nine rights uniformly because all the rights are

designed to effect the same goal: “to ensure a fair trial”

under a set of minimum safeguards. United States v.

Gonzalez-Lopez, 548 U.S. 140, 145 (2006).

2. The structure of the Constitution beyond the

Sixth Amendment further confirms that the right to

jury trial applies to “all criminal prosecutions,” with

no exception for petty offenses.

For one thing, the Framers knew how to limit the

reach of constitutional provisions to subsets of

“crimes” or “criminal prosecutions.” The Constitution,

for example, singles out “felonies” to delineate the

scope of certain provisions. See, e.g., U.S. Const. art. I,

§ 8, cl. 10 (“To define and punish Piracies and Felonies

committed on the high Seas”). Similarly, the Fifth

Amendment attaches the right to presentment or

indictment by a grand jury to “capital, or otherwise

infamous crime[s].” If “crime” applied only to “offenses

5

In Scott, the Court held the right to appointed counsel does

not apply to defendants who are not sentenced to jail time. See

440 U.S. at 373-74. But this restriction on the right the Court

created in Gideon v. Wainwright, 372 U.S. 335, 339 (1963), does

not apply to the Sixth Amendment’s explicit guarantee of the

right to assistance of retained counsel. See Scott, 440 U.S. at 370.

And even the Gideon right applies to petty offenses where, as

here, the defendant faces jail time. Id. at 373-74.

20

of a deeper or more atrocious dye,” supra at 15, then

this specification would be meaningless. “Crimes”

would have sufficed.

C. History

Nor can the petty-offense exception be squared

with history.

1. The Court has made clear that the right to jury

trial, like other Sixth Amendment rights, codified a

common-law right and should therefore be construed

in accordance with the common law. See Ramos v.

Louisiana, 140 S. Ct. 1390, 1395-96 (2020) (unanimous

jury); Holland v. Illinois, 493 U.S. 474, 481 (1990)

(impartial jury); Crawford v. Washington, 541 U.S. 36,

43 (2004) (right to confrontation); Giles v. California,

554 U.S. 353, 358 (2008) (same). Consequently, the

Court has repeatedly recognized that the right to jury

trial extends to the “class of cases” that were so

adjudicated at “common law.” See Callan, 127 U.S. at

549; accord Schick, 195 U.S. at 69; Duncan, 395 U.S.

at 151-52, 160.

The right to jury trial at common law covered

prosecutions for petty offenses. As Blackstone put it,

when the Crown sought to impose “punishment [upon]

the subject” by way of indictment or presentment, the

“ancient” rule was that the defendant was entitled to

“our admirable and truly English trial by jury.” 4

William Blackstone, Commentaries *280-82. This

included trial following “presentment of petty

offenses.” Id. at *300.

2. The Court and the Government have resisted

this straightforward analysis. When creating the

petty-offense exception, the Court claimed that in

21

England before the Founding, as well as in the

colonies, adjudications for certain minor crimes were

handled “summarily,” without juries. See Callan, 127

U.S. at 552, 555; Schick, 195 U.S. at 70; see also Felix

Frankfurter & Thomas Corcoran, Petty Federal

Offenses and the Constitutional Guaranty of Trial by

Jury, 39 Harv. L. Rev. 917, 922-965 (1926) (further

documenting this historical practice). And the

Government has taken this reliance on summary

adjudications one step further, arguing that the

Framers must have intended to allow legislatures to

dispense with juries in criminal prosecutions for petty

offenses because a handful of states in the postFounding era tolerated summary adjudications for

such offenses despite having Declarations of Rights

that “expressly guaranteed a jury trial in all criminal

‘prosecutions.’” BIO at 22, Ehmer v. United States,

145 S. Ct. ___ (2024) (No. 24-5160).

These arguments misapprehend what summary

adjudications were. Most were “in [their] nature not

criminal but civil ” proceedings in which the presiding

justice of the peace could impose nothing more than a

civil fine—as opposed to criminal punishment. Ex

parte Marx, 9 S.E. 475, 478 (Va. 1889) (emphasis

added); see also In re Glenn, 54 Md. 572, 599, 605-06

(Md. 1880) (such proceedings were not an exercise “of

criminal jurisdiction”). Even when a justice of the

peace was empowered to impose some form of criminal

punishment, the proceeding was not considered a

criminal “prosecution” because it did not proceed by

way of indictment or involve a prosecutor. Marx, 9 S.E.

at 476; Glenn, 54 Md. at 605-06.

That being so, summary adjudications were “in

derogation of the common law,” not a reflection of it.

22

Roth, 72 Duke L.J. at 654; see also Philip Hamburger,

Is Administrative Law Unlawful? 244 (2014). In the

words of Blackstone, the “common law [wa]s a

stranger to” summary adjudications in which “there is

no intervention of a jury.” 4 William Blackstone,

Commentaries *280; see also 3 Richard Burn, The

Justice of the Peace, and Parish Officer 159 (1756)

(“The power of a justice of the peace is in restraint of

the common law, and in abundance of instances is a

tacit repeal of that famous clause in the great charter,

that a man shall be tried by his equals; which also was

the common law of the land long before the great

charter.”). The same understanding prevailed on this

side of the Atlantic. As Justice Harlan explained, the

allowance of summary adjudication “was contrary to

the genius of the common law.” Schick, 195 U.S. at 97

(Harlan, J., dissenting); see also Geter v. Comm’rs for

Tobacco Inspection, 1 S.C.L. (1 Bay) 354, 356 (S.C.

1794) (“summary adjudications” were “in restraint of

the common law”).

Put another way, not even the English themselves

understood the occasional legislative allowances for

summary adjudications to suggest that a court could

dispense with trial by jury in an actual criminal

prosecution. Compare 4 William Blackstone,

Commentaries *280-82 (“Of Summary Convictions”)

with id. at *301 (“Of the Several Modes of

Prosecution”). Such legislatively approved deviations

from the common law were like the deviations from the

right to confrontation that sometimes crept into

criminal prosecutions. It was one thing for “[j]ustices

of the peace” to engage in inquisitorial practices; it was

wholly another for such examinations to be “read in

court in lieu of live testimony.” Crawford, 541 U.S. at

23

43 (emphasis added). The latter was inconsistent with

the common-law right to confrontation. Id. at 50. This

Court, therefore, has understood such historical

deviations to illustrate what the constitutional right to

confrontation forbids, not what it allows. See id. at 43,

50.

The Court should follow the same course here.

There can be no doubt that petitioner’s case is a

criminal “prosecution”: It was commenced by

information and instituted and litigated by a federal

prosecutor on behalf of the United States. That should

be the end of the matter.

II. The stare decisis factors support reconsidering

the petty-offense exception

When deciding whether to overturn precedent,

this Court considers the quality of the decision’s

reasoning, the jurisprudential and practical

consequences of the decision, and any societal reliance

on the decision. See, e.g., Ramos, 140 S. Ct. at 140507; id. at 1414-15 (Kavanaugh, J., concurring);

Gamble v. United States, 587 U.S. 678, 718 (2019)

(Thomas, J., concurring). All of these factors point

towards abrogating the petty-offense exception.

A. Egregiously wrong

1. For all of the reasons just stated, the pettyoffense exception flouts the text, structure, and history

of the Constitution. But that is not all; it is also flatly

inconsistent with this Court’s modern methodology for

construing the Sixth Amendment.

This Court has recently and repeatedly made

clear that judicial balancing and related “functionalist

assessment[s]” are off-limits when it comes to the right

24

to jury trial. Ramos, 140 S. Ct. at 1401-02. “When the

American people chose to enshrine that right in the

Constitution, they weren’t suggesting fruitful topics

for future cost-benefit analyses.” Id. at 1402. Nor were

they licensing this Court to suspend the right to jury

trial

where

inefficient

or

administratively

inconvenient. To the contrary, “arguments from

efficiency cannot alter the demands” of the

constitutional right to jury trial. See Erlinger v.

United States, 144 S. Ct. 1840, 1859 (2024); see also

id. at 1856 (“There is no efficiency exception” to the

right to jury trial); Blakely v. Washington, 542 U.S.

296, 313 (2004) (same). The whole point of

guaranteeing the right to jury trial in “all” criminal

prosecutions is to preclude dispensing with the

procedure on the basis of such expediency.

Yet instead of adhering to the original public

meaning of the right to jury trial, the Court has

grounded its petty-offense exception in a balancing of

policy considerations. The Court has opined that “the

possible consequences to defendants from convictions

for petty offenses have been thought insufficient to

outweigh the benefits to efficient law enforcement and

simplified judicial administration resulting from the

availability of speedy and inexpensive nonjury

adjudications.” Duncan, 391 U.S. at 160. And when

creating the six-month cutoff for petty offenses, this

Court “weigh[ed] the advantages to the defendant

against the administrative inconvenience to the State

inherent in a jury trial and magically conclud[ed] that

the scale tips at six months’ imprisonment.”

Baldwin v. New York, 399 U.S. 66, 75 (1970) (Black,

J., concurring in the judgment); see also Blanton v.

City of North Las Vegas, 489 U.S. 538, 542-43 (1988).

25

This brand of reasoning will not fly anymore.

Worse yet, under the petty-offense exception, “the

judicial imperative of interpreting the fundamentalto-liberty jury right has been abdicated to the

legislative branch, or in this case even the executive

branch”—all in the name of “efficient government.”

Pet. App. 30a (Tymkovich, J., concurring) (quoting Oil

States Energy Servs. v. Greene’s Energy Grp., 584

U.S. 325, 356 (2018) (Gorsuch, J., dissenting)). That is

because the doctrine requires courts to defer to

legislatures—or, more accurately here, administrative

agencies—as to whether an offense is serious enough

to require jury trial. Blanton, 489 U.S. at 541-43; see

also Pet. App. 30a (Tymkovich, J., concurring).

The judiciary must not cede to the political

branches its core “province and duty” to “say what the

law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,

176 (1803). Just as this Court recently clarified that

administrative agencies may not curtail the Seventh

Amendment right to jury trial by regulatory fiat,

SEC v. Jarkesy, 144 S. Ct. 2117, 2127-28 (2024),

neither may agencies deprive criminal defendants of

their Sixth Amendment right to jury trial in “all

criminal prosecutions” by creating crimes punishable

by up to “only” six months in prison. See Pet. App. 26a,

28a, 30a (Tymkovich, J., concurring).

2. The Court is even “less constrained to follow

precedent” here because this Court has never had the

benefit of “full briefing or argument on [the] issue.”

Johnson v. United States, 576 U.S. 591, 606 (2015)

(citation omitted).

This Court first suggested in Callan v. Wilson,

127 U.S. 540 (1888), that the right to jury trial

26

contained a petty-offense exception. The Callan

defendant had been summarily tried and convicted in

a District of Columbia “police court.” 127 U.S. at 547;

see Roth, 72 Duke L.J. at 610-11. In briefing, the

defendant assumed his offense—conspiracy to commit

extortion—was jury-demandable because it was a

crime. Petr. Br. at 15-18, Callan, 127 U.S. 540 (No.

1318). The Government did not disagree, instead

arguing that the Sixth Amendment did not apply to

D.C. courts, and that if it did, the regime at issue

satisfied that requirement by providing for jury trial

on appeal. Resp. Br. at 5-16, Callan, 127 U.S. 540 (No.

1318). Only at the end of the Government’s brief—in

all of one sentence—did it quip that “the guaranty of

trial by jury has never been understood to embrace

petty offenses.” Id. at 16.

The Court ruled for the defendant, holding that

the limited right to a jury in prosecutions commenced

in the District’s police court was a violation of the

Sixth Amendment and Article III’s jury-trial

guarantee. Callan, 127 U.S. at 556-57. But the Court

did not stop there. In dicta, the Court also

distinguished the defendant’s offense from “petty or

minor offences,” and it suggested that the latter could

“be tried by the court and without a jury.” Id. at 555.

When the Court turned this dicta into law in

Schick, the parties did not brief the validity of the

petty-offense exception either. See Roth, 72 Duke L.J.

at 616-17. Nor was the issue ever squarely presented

in any post-incorporation case applying the jury-trial

guarantee to the states. Id. at 615, 632. All told, “in

none of these later cases did a party present and brief

the argument that a petty federal crime is still a

‘crime’ and a ‘criminal prosecution’ and should thus be

27

jury demandable under Article III and the Sixth

Amendment.” Id. at 615.

Nor has this Court ever considered the modern

scholarship making clear that the Court’s prior

cursory historical analysis was decidedly incorrect.

See Kaye, 26 U. Chi. L. Rev. at 245-46; Lynch, 4 Kan.

J. L. & Pub. Pol’y at 7; King, 24 U. Pa. J. Const. L. at

817-822; Roth, 72 Duke L.J. at 601-08. As with past

cases, this upswell of scholarship warrants

reconsidering the Court’s precedent. See, e.g.,

Crawford v. Washington, 541 U.S. 36, 60-61 (2004).

B. Consequences

The petty-offense exception also has pernicious

consequences. And in cases where, as here, a criminal

procedure requirement “implicate[s] fundamental

constitutional protections,” stare decisis is “at its

nadir.” Alleyne v. United States, 570 U.S. 99, 116 n.5

(2013); see also Ramos, 140 S. Ct. at 1409 (Sotomayor,

J., concurring).

1. Perhaps most notably, the petty-offense

exception contravenes the Jury Trial Clause’s purpose.

The Founders insisted upon “[t]rial by jury in criminal

cases” to guard against “arbitrary methods of

prosecuting pretended offenses, and arbitrary

punishments upon arbitrary convictions.” The

Federalist No. 83, at 467 (Hamilton) (Clinton Rossiter

ed., 1961). This Court has likewise recognized that the

right to jury trial “protect[s] against unfounded

criminal charges brought to eliminate enemies . . . and

against the compliant, biased, or eccentric judge.”

Duncan, 391 U.S. at 156. In light of these functions,

“the essential feature of a jury obviously lies in the

interposition between the accused and his accuser of

28

the commonsense judgment of a group of laymen.”

Williams v. Florida, 399 U.S. 78, 100 (1970). Without

a jury, agents of the state—prosecutors and judges—

could unilaterally brand someone a “criminal” and

strip him of his liberty without any say whatsoever

from the general citizenry.

This fundamental restraint on prosecutorial and

judicial power is just as vital when dealing with

offenses punishable by a maximum of six months in

prison. Any amount of time in prison is seriously

damaging: Spending months behind bars separates

people from their families and communities, typically

costs them their jobs, imposes a psychological toll, and

places them at risk for physical harm while

incarcerated. See, e.g., Alexandra Natapoff,

Misdemeanors, 85 S. Cal. L. Rev. 1313, 1322–23, 1325,

1371 (2012). Monetary penalties can also impose

major hardship. See, e.g., Bridget McCormack,

Economic Incarceration, 25 Windsor Y.B. of Access to

Just. 223, 228 (2007). And the stigma of being branded

a “criminal” is the same regardless of how steep the

resulting punishment might be.

What’s more, the modern proliferation of

substantive criminal law exposes pretty much the

entire populace to these potential consequences. The

range of crimes that might be classified as “petty”

involves not just legislative prohibitions such as

littering and assault, but also an “alarming” array of

crimes

created

by

“minute

administrative

regulations.” See Lewis v. United States, 518 U.S. 322,

337 (1996) (Kennedy, J., concurring in the judgment).

These regulations apply to, among others, “millions of

persons in agriculture, manufacturing, and trade”—

implementing everything from “migratory bird

29

treaties” to employment laws and recreational conduct

on public lands. Id. at 337 (citation omitted); see also

Neil Gorsuch & Janie Nitze, Over Ruled: The Human

Toll of Too Much Law 108 (2024) (“Nor does anyone

have a clue how many federal regulatory crimes are

out there . . . the best anyone can do is guess that they

number over 300,000.”).

In short, prosecutors can almost always charge

virtually anyone with a petty offense. Are we really

content, in this day and age, to sacrifice for mere

efficiency’s sake the jury’s role in protecting against

vengeful prosecutors and eccentric or compliant

judges?

2. The Court also recognized years ago that the

“boundaries of the petty offense category [were] illdefined, if not ambulatory.” Duncan, 391 U.S. at 160.

The Court later responded to its own critique by

drawing the line—at least in general—between “petty”

and “serious” crimes at six months’ imprisonment. See

Baldwin, 399 U.S. at 69 (internal quotation marks

omitted). But that line remains fuzzy insofar as it is

still possible for a defendant to “demonstrate that any

additional statutory penalties, viewed in conjunction

with the maximum authorized period of incarceration,

are so severe that they clearly reflect a legislative

determination that the offense in question is a ‘serious’

one.” Blanton, 489 U.S. at 543.

This modern jurisprudence points to a more

fundamental problem, though. When courts make up

rules of constitutional law that flout constitutional

text, structure, and history, they have no neutral

criteria to undergird their jurisprudence. The pettyoffense exception represents just such an aberration—

30

to the detriment not only of criminal defendants but

also the public’s trust in the Court itself.

C. Reliance interests

Abrogating the petty-offense exception would

upset no legitimate reliance interests. No one “has

signed a contract, entered a marriage, purchased a

home, or opened a business based on the expectation

that, should a crime occur, at least the accused may be

sent away” without a jury trial. Ramos, 140 S. Ct. 83

at 1406.

Nor would abrogating the petty-offense exception

implicate any interest in the finality of criminal

judgments. As the Court recently held, “new

procedural rules do not apply retroactively on federal

collateral review.” Edwards v. Vannoy, 141 S. Ct.

1547, 1560 (2021). So even individuals who objected to

bench trials for petty offenses will not be able to attack

such final convictions based on anything the Court

holds here.

Granted, some trials in the future for minor

crimes would need to be conducted in front of juries

instead of judges. Yet the vast majority of states—from

Texas to California—already protect the right to a jury

trial for some or all petty offenses. See Memorandum

#31 from the D.C. Crim. Code Reform Comm’n to the

Code Revision Advisory Grp.: App. A (Feb. 25, 2020)

(35 states), https://perma.cc/V8UP-SPS2. And there is

no evidence that they have incurred any significant

burden in doing so. See id. at 1-6. Among other things,

most such cases end in plea bargains regardless.

At any rate, any incremental burden incurred by

providing the right to jury trial for petty offenses

cannot outweigh the long-term “interest we all share

31

in the preservation of our constitutionally promised

liberties.” See Ramos, 140 S. Ct. at 1408. Once

precedent is shown to be egregiously wrong, a

constitutional right should not be interred forever. Id.

III. This case provides an excellent vehicle for

reconsidering the petty-offense exception

Petitioner recognizes that this Court recently

denied certiorari in another case challenging the

legitimacy of the petty-offense exception. See Ehmer v.

United States, 145 S. Ct. ___ (2024) (No. 24-5160). But

that denial should not influence the Court’s

consideration of this petition. The petitioner in Ehmer

devoted only two pages in a second question presented

to the issue, and he restricted his argument to the

Sixth Amendment only. Ehmer Pet. for Cert. at i, 9-11.

This petition, by contrast, provides this Court a

comprehensive treatment of the constitutional and

stare decisis issues involved, and it challenges the

petty-offense exception under both the Sixth

Amendment and Article III.

At any rate, this Court has often granted review

after previously denying other petitions asking it to

reconsider precedent limiting the reach of criminal

procedure rights. See, e.g., Ramos v. Louisiana, 140 S.

Ct. 1390, 1428 (2020) (Alito, J., dissenting)

(referencing multiple previous denials on question

presented); BIO at 6, Alleyne v. United States, 570

U.S. 99 (2013) (No. 11-9335) (same); BIO at 5,

Gamble v. United States, 587 U.S. 678 (2019) (No. 17646) (same). And this case provides an ideal

opportunity to reconsider the petty-offense exception.

Petitioner preserved his constitutional claim at every

stage of his proceedings—before the magistrate judge,

32

district court, and Tenth Circuit. Petr. C.A. Br. 48, 7172. And the Tenth Circuit squarely addressed the

issue, with two of the three judges on the panel urging

this Court to do the same. Pet. App. 24a; id. 26a-31a

(Tymkovich, J., joined by Rossman, J., concurring).

The facts of this case also place the question

presented in stark relief because a jury may well have

made a difference to the outcome at trial. Petitioner

engaged in what some might think is flamboyant or

provocative behavior, allegedly recreating in the

Colorado backcountry to the consternation of

government officials. Pet. App. 3a-5a. He posted

various provocative photos and videos on social media,

arguably daring the government to charge him with a

crime. Id. 4a. At the same time, petitioner presented

two witnesses who “stated that they were the

individuals anonymously depicted riding snowmobiles

in pictures posted on [petitioner’s] Instagram

account.” Petr. C.A. Br. 18. It is quite possible that at

least some members of a jury might have believed

those witnesses or otherwise responded to the

prosecution in general differently from “one judge”

who, after all, also works for the government, Duncan

v. Louisiana, 391 U.S. 145, 156 (1968).

Indeed, the district court convicted petitioner of

one offense—unauthorized work activity on public

lands, in violation of 36 C.F.R. § 261.10(c)—for which

the Tenth Circuit found insufficient evidence on

appeal. See Pet. App. 21a-24a. Put another way, the

Tenth Circuit found that “no rational jury” could have

found that petitioner committed one of the two crimes

the Government charged petitioner with committing

here. Carella v. California, 491 U.S. 263, 266 (1989)

(reciting standard for insufficient evidence); see also

33

Pet. App. 21a-22a. So, if this trial had included a jury,

petitioner might have been able to obtain an acquittal

on the other charge too. He should have that

opportunity.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Kara M. Rollins

Jenin Younes

Philip Hamburger

Mark S. Chenoweth

NEW CIVIL LIBERTIES

ALLIANCE

4250 N. Fairfax Drive

Suite 300

Arlington, VA 22203

December 13, 2024

Jeffrey L. Fisher

Counsel of Record

Easha Anand

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

jlfisher@stanford.edu