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October 2013
Pro-gun article in the Philadelphia Lawyer magazine
Right here. The author, Jonathan Goldstein, notes an experience many of us have had. Straw-man buys are a State felony there. Yet he found that prosecutions on that ground numbered 1-2 per county, per year. He raised that during a debate where police officials were saying straw-man sales were a terrible problem, and they needed more gun laws to deal with them. And got the reply that, well, actually prosecuting those cases is a lot of work.
patent secrecy orders
Interesting. The Federal government can essentially make a patent a classified document. At the end of fiscal year 2013, 5,445 such orders were in effect. The majority seem to have some link with the government (perhaps sponsored by a grant?), but 21 "John Doe" orders are included, issued with regard to a private patentee whose name is kept secret. Here's more on the Invention Secrecy Act.
Opinion on "outrageous government conduct"
Opinion here. There is a defense known as "outrageous government conduct," which (as the opinion notes) requires truly outrageous action. Here, BATF hired an informant to cruise the tougher bars and try to recruit people to stage a home invasion of a mythical drug stash house full of a mythical amount of cocaine. Once he recruited a team, they were arrested for conspiracy to possess cocaine for purpose of sale, and for conspiracy to use a firearm in a drug transaction. They were convicted and appeal.
The court split 2-1. The majority finds this is not sufficiently outrageous. Judge Noonan dissents (p. 36), I think rather persuasively. The stash house and its drugs were a governmentally-created fiction. Defendants were recruited to act out the script. The informant was not told to seek out people who'd done this before or seemed predisposed to do it. The amount of drugs (which increases the sentence under the Sentencing Guidelines) was likewise a fiction.
He cites Judge Posner's observation that a reverse sting like this, to the extent it deters crime, has the paradoxical effect of making it safer to operate drug stash houses, and that drug distributors would probably be willing to pay the government to run these stings.
"Massively involved in the manufacture of the crime, the ATF’s actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court."
UPDATE: As the opinion notes, the informant urged the guy he was dealing with to recruit others. There was probably a reason behind this beyond maximizing the number of defendants. A Federal conspiracy charge requires proof that at least two people genuinely agreed to commit a crime. The informant doesn't count -- he has no intention to commit a crime. So he needs to recruit at least two others, so they can have a conspiracy.
Permalink · BATFE · Comments (6)
A few contradictions
The subject of firearms and gun laws tends for some reason to infect certain persons with a form of dementia -- they discard all their values without seeming to notice it. The liberal wing of the Supreme Court suddenly agitates against judicial activism, wants to constrain rights as tightly as possible. People who would oppose government databases in any other context decide they're a good idea. People who would condemn law enforcement abuse instead strongly defend it (e.g., Waco). Figures who think incarceration is a bad and expensive way to deal with street criminals argue that gun owners rather than criminals should be prosecuted.
The latest, from a blog that calls itself "Think Progressive." This article argues that women who experience domestic violence shouldn't have guns, because they're so weak or inept that anyone can overpower them and take the gun away:
"“I was shot with my own gun. Just putting a weapon in the woman’s hand is not going to reduce the number of fatalities or gunshot victims that we have,” Christy pointed out. “Too many times, their male counterpart or spouse will be able to overpower them and take that gun away.”"
Well, if that's true, then presumably women shouldn't be allowed to be police officers -- why, even if they go for their gun, the criminal will just get it away. They probably shouldn't be allowed in the military, and if they are, certainly not in combat roles. This is "Think Progress"????
Permalink · antigun groups · Comments (3)
NYC: man kills five with knife and machete
Story here. Of course, when comparing jurisdictions on "gun violence levels," these don't count.
Permalink · non-gun weapons · Comments (2)
Raid seizes whisteblower records of reporter
Seems she , and her husband was alleged to have an unregistered firearm. Curiously, a Dept of Homeland Security agent participated in the raid.
Sounds like they forgot that part of the Fourth Amendment that says the warrant must particularly describe the property to be seized...
Fails the BS test to me
Records of whistle-blower leaks seized during raid of investigative reporter linked to her husband who was convicted of resisting arrest. I dunno if resisting arrest is a felony in Maryland (the state has strange laws, include "common law misdemeanors" which are felonies under federal law (because the punishment is utterly up to the judge, a day of probation vs. life in prison)... but the Fourth amendments's requirement that for a residence the search warrant include a description of the property to be seized is still in effect.
Permalink · General con law · Comments (1)
Bad ruling out of PA
PA Gun Blog has the news. A judicial decision that essentially nullifies reciprocity there.
Permalink · State legislation · Comments (8)
Great idea! More great investment for the rest of us!
The Rhode Island Treasurer wants to divest the State's holding of stock in gun manufacturers.
Calif Ct of Appeals rules semiautos are not protected
Decision here, in pdf. The court essentially seizes upon Heller language saying the right has some limits, and proclaims that semi-autos, or at least "assault rifles," are at least as "dangerous and unusual" as the short barreled shotgun involved in Miller.
The inclination of the court is obvious. The situation probably indicates how essential it is to "develop a record" at the trial level. What proportion of firearms are "assault weapons"? One of the answers is that over 20% of current rifle production is by manufacturers who make nothing but AR-platform rifles.
Permalink · Chicago aftermath · Comments (6)
Interpol chief calls for an armed society
Reader Eric emailed me a story that is for some reason blocked by the spam filter, and it's good enough to merit its own posting. It's the Interpol chief's response to the terrorist shootings in Nairobi, Kenya. I can't cut and paste for some reason, but he asks if this were Denver or Texas, could terrorists have spent hours and days shooting people? This should make police worldwide question their views on gun control. We need to discuss the value of an armed citizenry now.
I just realized -- the Interpol head is Ron Noble, who was UnderSecretary of the Treasury for law enforcement under Clinton, and at least nominally headed up Treasury's review of the Waco tragedy. Looks like a battlefield conversion to me!
European Union debates more gun laws
Story here. There's no such thing as "too much."
Permalink · non-US · Comments (2)
Pro gun rally at the Alamo!
"The decision on the long gun protest rested with Texas Land Commissioner Jerry Patterson, who as a legislator was known for carrying a pistol in his boot. The Marine veteran is running for lieutenant governor largely on a single-barrel platform of gun rights."
I've shared some beer with Patterson, and there's no doubt where he stands on the 2A!
Walmart fires clerk for trying to stop assault
A lady was being assaulted by her ex-boyfriend, a clerk on break helps to protect her, and gets fired, since company policy is "let it happen."
The moral issue is, I think, clear, and the legal one may be so. Torts 101 is: no one is liable for failure to rescue another, but a person is liable if they impede someone who is trying to rescue another. The Walmart policy appears to create corporate liability anytime an employee follows it.
Permalink · Self defense · Comments (6)
Stressing running high in the House of Reps
Thought I wouldn't have expected the stenographer to be the first to break.
SA Dodson's book on F&F approved
ACLU announces that ATF cleared the book, calling for a few redactions.
Permalink · BATFE · Comments (1)
California's slippery slope
"It started with a dinner date. Now I'm married with kids. How the heck did that happen?"
Permalink · State legislation · Comments (0)
Interesting article on Mississippi gun laws
David Kopel, "The Strange Career of Mississippi’s Bans on Gun Carrying." It certainly followed a strange path! Bans on concealed carry became, by judicial interpretation, bans on all carry. The legislature finally rectified that, only to have a trial court enjoin the new law as void for vagueness ... essentially, a *defense* was supposedly void for vagueness! Finally the State Supreme Court voided the injunction.
Permalink · State legislation · Comments (3)
Active day in the Supreme Court
They denied cert. in Woollard v. Gallegher, but granted it in Arbramski v. US.
The latter case involves an LEO whose uncle (living in a different State) wanted to buy a gun. The LEO said he could get it for him, at an LEO discount price. The LEO bought it from an FFL, and went thru the background check. He then shipped it to an FFL in his uncle's State, who transferred it to the uncle, who likewise went through a background check. The LEO was, however, prosecuted for having filled out the 4473 and certified himself to be the actual buyer.
I uncovered in my ancient files a BATF "Industry Circular," from 1979, which advises dealers to avoid straw man sales, and in defining them says they are unlawful if the ultimate recipient is a prohibited person, and lawful if the ultimate recipient could legally buy.
Permalink · Gun Control Act of 68 · Comments (8)
Coolidge Foundation offers prize for blog post and best reflects his spirit
Okay.
California: Gov. Jerry Brown signs some gun laws, vetoes others
Story here.
The major bill he signed bans use of lead projectiles in hunting; the major one he vetoed would have expanded the ban on "assault rifles" to include any semiauto with a detachable magazine. The others:
"Among other bills Brown signed Friday were SB 683 by Sen. Marty Block, D-San Diego, to require long-gun buyers to earn safety certificates like those already required of handgun buyers; AB 48 by Assemblywoman Nancy Skinner, D-Berkeley, to ban conversion kits that allow people to turn regular magazines into high-capacity magazines; AB 231 by Assemblyman Phil Ting, D-San Francisco, which makes it a crime to leave a loaded firearm somewhere a child is likely to be able to get it without permission; and AB 1131 by Skinner, to extend from six months to five years the prohibition from owning firearms for those who've described a credible violent threat to a psychotherapist.
Other bills Brown vetoed SB 567 by Sen. Hannah Beth Jackson, D-Santa Barbara, which would have updated the definition of an illegal shotgun to include a shotgun with a revolving cylinder and a rifled bore; SB 755 by Sen. Lois Wolk, D-Vacaville, which would have expanded the list of convicts who can't legally own guns to include those with multiple drug or alcohol crimes, street gang members and others; and AB 169 by Assemblyman Roger Dickinson, D-Sacramento, which would have tightened exemptions to the law prohibiting purchase of handguns that haven't been tested and deemed safe by the state."
Permalink · State legislation · Comments (10)
Judicial Watch sues MAIG and Bloomberg
Story here. It's a suit under the NY freedom of info law, filed in the Supreme Court (which in NY is not the supreme court, it gets complicated in some places). It sounds like one heck of a lawsuit, looking for documents reflecting ties between MAIG, NYC government, and MAIG's lobbyists, or to Joe Biden. Normally, a nonprofit is entitled to keep its records secret, but I suspect given the close ties between MAIG and NYC government (which we know pays for MAIG's webpage, for example), MAIG may be vulnerable here. JW does careful legal work, so I suspect they have that angle nailed down.
Permalink · antigun groups · Comments (1)
Another Bloomberg mayor bites the dust
Kwame Kilpatrick, former Detroit mayor and member of MAIG, just was sentenced to 28 years in prison for corruption.
"Kilpatrick spent $800,000 more than he earned. He billed his city credit card for trips to Las Vegas, and bought concert tickets and football tickets along with an $850.00 steak dinner. He leased two Lincoln Navigators for his wife with public money.
"Managing a city with no money is hard every single day," Kilpatrick told the court. "I can't stand here and say I didn't work my butt off. I did every single day.""
UPDATE: just got thru deleting and despamming about 200 spam comments, most of them like this one. I'll leave that one up, just hoping it's not saying something in Japanese that the NSA doesn't like...
Permalink · antigun groups · Comments (11)
Emily Miller on NY gun laws and gang beating of SUV driver
She's on CNN.
Permalink · Self defense · Comments (3)
More on attack on SUV driver in NYC
Undercover office who claimed he stayed aloof from the attack charged after video shows him attacking the car. Yep, you don't need firearms in NYC: Bloomberg's police are there to protect you.
ATF HQ tries to block whistleblower's book on Fast & Furious
Agent David Dodson has written a book on the subject, and ATF HQ is is trying to block its publication. Most agencies have some power over current employees publishing on their duties, if only to ensure they don't reveal confidential sources or tactics, but blocking an entire book is something I've never heard of being done.
On the other hand, before F&F I never heard of an agency committing acts of war against another republic, either.
Hat tip to Merlin...
Permalink · BATFE · Comments (1)
NYPD police stood by while driver was savaged
Short summary: Alexian Lien [name corrected -- hat tip to the commenter] and his family were driving down the Hudson Parkway behind a group of motorcyclists. One of the bikers apparently felt the family were encroaching on their "space" and so pulled in front of him and hit the brakes (it was no coincidence; you can see him looking back over his shoulder to gauge the result). Lien bumped him, and the rest of the motorcyclists began to attack Lien, smashing his window with a helmet, slashing his tires.
He gunned the engine, went over one of the motorcyclists, inflicting serious injuries, and the chase was on. They eventually caught up with him, and inflicted a serious beating
Now it turns out that at least five NYPD officers were among the motorcyclists, none of whom tried to stop the attack.
Yes, Bloomie, we know ... your police will protect us. You can reflect that it's a good thing the victim didn't have a gun, because this way there were no gun deaths to report.
Justice Ginsberg's view of the Second Amendment
Interview here.
"In the wake of the fierce, nationwide debate over gun rights and gun control, Justice Ginsburg also explained the historical basis for her view on the Second Amendment.
"The Second Amendment has a preamble about the need for a militia ... Historically, the new government had no money to pay for an army, so they relied on the state militias," she said. "The states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them. That was the entire purpose of the Second Amendment."
Ginsburg said the disappearance of that purpose eliminates the function of the Second Amednment.
"It's function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own," she said. "I view the Second Amendment as rooted in the time totally allied to the need to support a militia. So ... the Second Amendment is outdated in the sense that its function has become obsolete."
As for the Heller case, decided by the court in 2008, Ginsburg says the court erred in its decision.
"If the court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new," she said. "It gave a qualified right to keep and bear arms, but it was for one purpose only — and that was the purpose of having militiamen who were able to fight to preserve the nation.""
I won't go into the historical angle (the shortfall of money was one reason for a militia, but it was one almost never mentioned at the time -- the big argument for the militia was that it could be as powerful as desired without any risk of it taking over the government, unlike a standing army), but into the reasoning. One of the many problems with the collective rights view is that its proponents never want to consider their theory's results -- which would be that any State could revive its militia system and presumably arm it as the State pleased. M-4s, SAWs, F-16s. The Justice deals with that by saying that the Second Amendment has become "obsolete" and presumably inoperative in *any* way.
I don't see any precedent (legal or historical) for the Court to simply declare a provision in the "Supreme law of the land" obsolete, i.e., not fitting in with their world-view. There are plenty of constitutional provisions which some might think obsolete. A government which deploys the NSA certainly seems to think the Fourth Amendment obsolete in an age of terror. The $20 threshold on civil right to jury is certainly obsolete, but still followed. How about the right to petition? In early Congresses, each petition was read aloud -- now, I suspect they are given the circular file.
Permalink · Supreme Court caselaw · Comments (43)
Shots fired on Capitol Hill
A quick look-over, and in a situation like this first reports are usually dead wrong. Sounds like all shots were fired by police. There is a video of the woman's car, stopped with front toward the metal posts used on Capitol Hill. Front end shows no damage, doesn't look like it rammed anything. Then she drives out of sight, shots fired, and she drives away (I won't say speeds, in Washington traffic it's hard to drive, let alone speed). Park Police car badly busted up, but looks more like collision with some other vehicle or a still object.
Still photo of car after it stopped shows again, no front end damage at all, but apparent damage to rear end, possibly rammed during chase to try to spin it out. New car, looks like Conn. plates. Small kid in car... starting to sound like possibly a panicked tourist?
Supreme Court takes cert. in DV case
US v. Castleman. Here's the petition. It took re-reading to figure out the issue involved.
The Gun Control Act prohibition talks in terms of a person convicted of a crime, one element of which is use or threat of "force." NB: use of threat of force must be an element of the crime.
The State statute at issue (Tenn.) refers to assault which under the statute including knowingly or recklessly causing bodily injury (including a "cut, abrasion ... physical pain or temporarily illness..."
The last few of those could be inflicted without "force," by, e.g., slipping someone a drug. So is this a State crime which has an a element the use of force? Although this seems like debating how many angels can dance on the head of a pin, the petition notes the issue has caused a major Circuit split.
NRA risk management
An interesting article. For some nonprofits, risk management is simple. For a five million member one, with many linked organizations (its Civil Rights Defense Fund, Foundation, Whittington Center Foundation, PAC, etc., etc.) it is quite complex. For tax purposes, each has to stay within its bounds. Proper insurance has to be found and negotiation. Claims processed. Cyber risks minimized. Not to mention... "A recent court filing connected the NRA to spaceships, X-ray beams, and anti-gravity technology."
An overstatement, since I don't think it's ever been linked to anti-gravity technology, and Ruger gave up on the X-ray handguns a few years ago. Overpenetration, and not enough stopping power.