Friday, April 9, 2021

Beyond Black Letter Law from The Armed Citizens Legal Defense Network, Inc


An Interview with Attorney Rob KeatingKeating R

In our January Attorney Question of the Month, Texas attorney Rob Keating concluded his comments by observing, “Even with good laws, it is important to understand how those statutes are interpreted by the courts.” I responded that he’d really hit the nail on the head, which led to a conversation about how appellate court decisions affect statutory law enforcement. We switch to Q&A format to share his explanations about case law with members who will likely find it as interesting as I did.

eJournal: Can we start by establishing definitions? What is case law?

Keating: When the courts interpret the law and determine how it should be applied in certain situations, they create case law. 

eJournal: Is that the same thing as common law?

Keating: Common law is case law. The term common law refers to precedents set by prior court decisions. The system originated in England and is primarily used to resolve ambiguities in the statutes or codes.

eJournal: I have also read the term “judge-made law.” What does that mean?

Keating: Yes, it is also called judge-made law, although I haven’t heard that term used much since I left law school. That’s probably because it sounds a lot like “legislating from the bench,” which negatively connotates. I know that over the past few years, I’ve heard many people complain about activist judges not following the law and creating their own spin on things.

eJournal: I hadn’t picked up on that nuance in my reading, so I am glad you put it in context. Is there anything else about definitions that we should establish before exploring the effect of case law on our everyday lives?

Keating: There are additional factors like stare decisis that will help you understand.

eJournal: Interestingly, you mention that term because I recently read an article that stated, “Common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts…” Why is that?

Keating: Consistency is the reason courts are bound to follow their own decisions and courts' decisions that are directly above them. If you have judges interpreting the law and saying, “This is what the law really means,” then you should be able to count on that and not worry that maybe a different judge is going to look at it differently.

eJournal: I can see how essential that would be when you go to trial…

Keating: It’s important not just for me to take things to trial, but it is also important for people who are just out there living their lives. Often, the difference between something being legal or not is based on some of the court decisions that have been made.

eJournal: Exactly as you say, and that is why we are having this conversation. With state statutes easily accessible by the Internet, it is easy to read the current black letter law. Still, I think the difficulty arises in how those words have been interpreted and applied by the courts.

Keating: I do this all day, every day, and it is difficult for me to keep up with all the developments in case law. For someone without legal education and without doing it all the time, keeping up with case law is a pretty daunting task.

eJournal: How far-reaching are these court decisions we’re calling case law?

Keating: Case law is binding on all the courts, which fall beneath the court that made the case law. For example, the United States Court of Appeals for the Fifth Circuit is the overall federal district court in Texas, Louisiana, and Mississippi. Any federal district court in those states is bound to follow case law from the Fifth Circuit. However, a federal district court in Kentucky would be under the Sixth Circuit and does not have to follow the Fifth Circuit's holdings. Of course, they all have to follow the holdings from the US Supreme Court.

eJournal: Is there any influence from one circuit court to another? For example, my home area is served by the Ninth. Do I also need to pay attention to decisions by other circuit courts?

Keating: Using your example, a lot of times if the Ninth Circuit has not dealt with an issue, but the Fifth Circuit has, then the first time that issue comes up in the Ninth, many times they will look at what other circuits have done, and may say, “Well, this circuit did this.” Now, they do not have to follow that. It has what we would call “persuasive authority,” not “mandatory authority.” A circuit court’s decision can be relevant, but another circuit court does not have to follow it.

eJournal: How important are courts' decisions below the circuit court of appeals to your work as a defense attorney – and for that matter, how much attention do trial judges pay to lower courts of appeal?

Keating: In addition to the Supreme Court and the Federal Fifth Circuit, I also pay attention to all of the decisions that come out of the Texas Court of Criminal Appeals, which is the highest court in Texas for criminal cases. Underneath the Court of Criminal Appeals, there are 14 appellate districts in Texas. I practice primarily in the Dallas-Fort Worth area, so I need to pay attention to the districts that cover my area because, as we have said, the trial courts are bound to follow those decisions. I also try to keep up with decisions from the farther away districts and are only persuasive authority, like Houston or Austin … but there’s only so much time in the day.

Fortunately, I am a member of various bar associations that publish summaries of court cases periodically, which is a big help.

You asked how much attention judges pay – I think trial court judges pay attention, too, because they don’t like to get overturned on appeal. They want to make decisions that are in line with what the appellate courts have said, so I think they pay pretty close attention, as well.

eJournal: How do decisions from higher courts trickle down to trials at the grassroots level?

Keating: Here’s an example: the Fourth Amendment provides a great illustration of the role of case law in the United States. The Fourth Amendment provides that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” But what does that really mean? And what happens if the police violate that right? That’s where case law comes into play. 

In 1914, the US Supreme Court decided the case of Weeks v. the United States. This was a case in federal court in which police officers and a US Marshal searched Mr. Weeks’ home without first obtaining a warrant. The court held that if illegally obtained evidence is used against a defendant at his trial in federal court and convicted, the conviction must be overturned. This created what we now call the exclusionary rule.

It is important to understand that the protections afforded by the Bill of Rights are federal in nature. In other words, the federal government cannot infringe on your right to free speech or free exercise of religion. But the protections provided by those amendments don’t automatically apply to the states. 

In 1949, the US Supreme Court heard the case of Wolf v. Colorado. Like the Weeks case, law enforcement officials obtained evidence illegally, used it at trial, and Wolf was convicted. The big difference here is that Wolf was on trial in state court. Wolf appealed his conviction and said that the due process clause of the 14th Amendment meant that the Weeks case's exclusionary rule should also apply to the states. The Supreme Court flatly rejected his argument and refused to extend the Fourth Amendment protections against unreasonable search and seizure to the states.

It wasn’t until 1961 that the US Supreme Court reversed its stance and incorporated the Fourth Amendment to apply to the states. In the case of Mapp v. Ohio, the court overturned its decision in Wolf. It held that all evidence obtained by searches and seizures in violation of the Fourth Amendment is inadmissible in a state court.

Most of the Bill of Rights's protections have now been incorporated under the 14th Amendment through various Supreme Court decisions and apply to the states as well as the federal government, but not all of them.

eJournal: Does case law remain in effect forever?

Keating: Cases don’t ever expire unless the law changes. Obviously, the cases that dealt with the old law will now need to be looked at again. It will be a new case. Here in Texas, we have some cases from way back, like 1888, and they are still good. They have never been overturned.

The more recent a case is, the more the doctrine of stare decisis is going to apply. If the court just decided something two years ago, it is less likely that they will reverse course and issue a different decision. If it is a case from 100 years ago, they are going to be more willing to say, “Well, things have changed, and the reasoning that was behind that decision no longer applies.”

eJournal: If an appellate court makes one bold, groundbreaking decision, does that single redirection affect verdicts from there on out?

Keating: It does. If a court reverses a previous decision, they are generally pretty clear about it and might say, “This is why we are reversing that decision.” They are typically pretty specific if they get rid of an old rule and replace it with a new one. What you will see a lot more frequently is courts saying, for example, “Well, the Blockburger case is still relevant here, but these facts are a little bit different, so it is not the same situation. Therefore the analysis is a little bit different.” They can fine-tune a very general rule and have some follow-on cases that flesh out a few different subsets of that rule. Does that make sense?

eJournal: Yes, it does, and the example gives context to how the courts use previous decisions while acknowledging that no two sets of circumstances are identical. In all fairness, how can people in 2021 be held to rules that were fair in 1890? There are a few stories in the history books about some pretty bizarre appellate decisions.

Keating: Right, and that is how cases sometimes get overturned. Sometimes they look back, and they say, “We made a bad decision in that one.” Other times they say, “Things have changed, and it is time for a new rule on that.”

eJournal: When a court says, “We made a bad decision,” does that ever come from a lower court taking a courageous stand against a decision made by a higher court?

Keating: I cannot think of any cases in which a lower court has simply rejected mandatory authority from a higher court and said that they would not follow it. Usually, you see courts overturning their own decisions. For example, you might see the Supreme Court saying we are overturning our decision, but you would not see the Fifth Circuit Court rejecting a Supreme Court decision or saying, “We think the Supreme Court is wrong, so we are going to rule in this guy’s favor.”

eJournal: If new legislation changes statutory law, what happens to previous case law?

Keating: Starting at the trial court, where they are dealing with the issue in the first place, if it comes up, then they may say, “Well, under the old statute, the case law said we would have to do this. The new statute is essentially the same, so we think that rule still applies,” or they might say, “The new statute removes this element of the offense, which was really what that case law was all about, so that rule no longer applies.” A lot of times, it is an entirely new question, and there is no case law to rely on. Sometimes that happens when a statute changes; other times, a statute is close enough that you can directly apply the old case law, or you can start your analysis with, “This is how the old case law would have handled it, but because of this difference, we think the new rule should be this.”

eJournal: How many appellate court decisions are needed to make strong case law? I ask because I’ve read that case law is defined as “The collection of past legal decisions [plural] written by the course of deciding cases, in which the law was analyzed using these cases to resolve ambiguities...” Would you rely on a single appellate decision, or does it take a series of decisions before you’d cite a previous decision when you’re defending someone?

Keating: If it is a case that is good for us, we jump on it right away. We pay close attention to cases that we know are going up on appeal, and we wait for those decisions, and sometimes we start citing a decision days after it comes out because we have watched it and waited for it to come out. We have many kinds of decisions here in Texas about warrants and blood draws for DWIs from the search and seizure aspect. There has been a lot of new case law in the past several years in Texas, so it has been interesting to follow and see the new case law come out.

I mentioned that in TX, the court of criminal appeals is the gold standard. Still, if I am in a case in Tarrant County and the Fort Worth Court of Appeals, which is one of our 14 appellate courts, has made a decision, the judges in Tarrant County do have to follow that even though it is only from the first level of appeals courts.

You asked if case law starts getting applied right away. There was a case called Martinez that came out, and in Dallas County, we were relying on it to show that the warrants the officers were using were not valid under that decision. We got a lot of blood cases thrown out.

If I had made exactly the same argument with very similar facts in Tarrant and Parker County, in which I also practice, those judges would say, “Are you crazy? We are not throwing out these cases for that.” They would say, “We don’t think that case means what you are saying it means.” That is how judges will disagree with case law. They won’t say, “We disagree with it,” instead they will say, “We don’t think the case means what you say it means,” and in that respect, sometimes you do have to get a couple of cases in which the court comes back and says, “Yes, that is actually what we did mean in Martinez.”

eJournal: What a useful perspective, as well as a fascinating, peek into the world in which defense attorneys work! What resources can ordinary men or women access to be better informed about case law and how it changes?

Keating: One of the reasons I think the Network is so valuable is because you put out information about questions like that.

eJournal: Thank you, but the compliment is coming right back to you because you and I would not have explored this topic were it not for your commentary in a recent Network online journal’s Attorney Question of the Month column. What other resources should we access for current information on case law?

Keating: Take classes with trainers like Massad Ayoob. When he teaches, he is telling people about case law and how laws are interpreted. It is really, really valuable to take classes like that. Before I was in law school, I attended a MAG 40, and I learned more from him about the use of force than I did from my criminal law professors. People should take advantage of training.

A lot of lawyers will sit down with you for 30 minutes, and you pay them a certain fee, and then you can ask them questions like, “What do I need to know?” You can do that kind of consultation, and the lawyer can give you advice.

Legal blogs are another resource for keeping up with some of the case law. Do a Google search for legal blogs about the laws in your state or search for a blog about the defensive use of force. Follow that blog, and that way, you will find out about important decisions coming up.

eJournal: What is the bottom line? What do you hope our members will take away from this interesting and educational conversation?

Keating: I’d like to emphasize just how simple a thing can become a matter of case law. There are some restrictions on where you can carry a knife with a blade over 5 ½ inches in Texas. There was a case in which the issue was what constituted the blade. Is it only the sharpened portion, or does the blade also include any non-sharpened portion before the handle starts – in other words, do you measure the ricasso?

That ended up being the case of an appeal because a guy had a knife where the sharpened portion was about 5 ¼ inches, but the whole blade measured 5 ¾ inches. If you read that statute one way, the knife was legal; if you read it the other way, it wasn’t, so just understand that we can still fight over it even if there is a definition in the statute. Those are the kind of things that get resolved in case law.

eJournal: If we ever wondered whether it is important for us to know our state’s case law, that pretty much answers that question. Thank you, Rob, for all the time you’ve spent with me today, for your answers, examples, and this interesting discussion. Please know, also, that I appreciate your services to members as a Network affiliated attorney.


The Network’s relationship with attorney Rob Keating is unusually varied. Many years ago, Rob joined the Network as a rank and file member. After he started a shooting school, he participated as a Network affiliated instructor until he quit that line of work to go to law school. After graduating and establishing his criminal defense practice, we were delighted to renew acquaintances when he became a Network affiliated attorney. Learn more about Rob at and

To read more of this month's journal, please click here.



Post a Comment