Feb 19, 2015
Looks like we’ve had a few more favorable court rulings in the past few days. The first comes from the Middle District of Pennsylvania, in the case of Suarez v. Holder, holding that a past non-violent felony conviction was not sufficient to strip him of his right to keep and bear arms. This is an “as applied” challenge, meaning it did not challenge the felon-in-possession statute (18 USC 922(g)) on its face, but challenged it as applied to the plaintiff in this case. He was convicted in 1990 of carrying a firearm without a license in Maryland, a misdemeanor in Maryland, but one that can carry a penalty of up to three years in prison (and thus prohibiting under federal law). The more cases like this we get, the more cause we have to seek further redress through Congress, since these suits cost the federal courts time and money (both of which are in short supply). You can read more about the case here. Hat tip to Joe Huffman for the tipoff.
The other case is from the Florida Court of Appeal, Norman v. State. This court upheld the Florida restriction on open carry, but it’s a win because they adopted the reasoning that we’ve been pushing the courts toward. The court recognized there was a right to carry a firearm outside the home, but that the state may regulate the manner in which firearms are carried.
The Legislature “has a right to prescribe a particular manner of carry, provided that it does not ‘cut off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render the right itself useless.’” The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.
The reason our legal advocates have been pushing for this interpretation is because it squares with a long, unfortunate tradition in some parts of the country of making concealed carry unlawful, while allowing open carry, and courts upholding them under the Second Amendment and state Second Amendment analogues. This ruling does beg the question of whether, say, New Jersey, for instance, could get around being forced to comply with federal law by legalizing open carry, but still requiring a relatively non-obtainable license for concealed carry. That doesn’t do anything to destroy the right de jure, but given that open carry is not socially acceptable in the Garden State, does it amount to a de facto destruction of the right? That’s probably why anti-evasion doctrine is going to become very important going forward.
Jan 29, 2015
The Seventh Circuit heard oral arguments in an assault weapons case. From the questioning in this article presented by the article, it looks to me like Judge Easterbrook isn’t very fond of the common use test.
But U.S. Circuit Judge Frank Easterbrook cut him off abruptly: “What if somebody decides to possess a bazooka?”
“It’d fall into a longstanding prohibition,” Vogts replied.
“No, there’s no such prohibition; they were only invented recently. It was once perfectly legal to own automatic weapons like Tommy guns.”
“But that dates back 80 years ago.”
Easterbrook was not convinced. “Yes,” he said, “but the Second Amendment dates back to the 18th century. Why does that matter? I don’t see how you can say fully automatic weapons are okay to ban because some states banned them in the 1950s. How is it rational to distinguish a ban laid down 150 years after the Second Amendment from one laid down 200 years after?”
I think it’s important to consider what the court was trying to accomplish with that presumption, which is that commonly used firearms are deserving of protection. I don’t think too much more needs to be read into than that, which is what I think the attorney for the plaintiff was trying to stick to. The argument Easterbrook is asking, I think, can be left for another case.
But I agree with Easterbrook that the common use test, and “longstanding prohibition” doctrine is imperfect, and was largely an effect of trying to exclude machine guns from protection. I think the test should be whether the arm in question is in common use by police as well. One should not just look at commonness in the civilian population. Any gun control law that has a police exception to it should automatically be treated with strong suspicion by the courts, and any arm that is part of ordinary police equipment should be unequivocally protected for civilians as well. That would include pistols, shotguns, semi-automatic rifles, and the standard capacity magazines that go with them. It would also include body armor, chemical sprays, tasers, and batons. It might even include true assault rifles, as they become ever more common in police inventories. I think such an evaluation would create a far more equitable balance between the people and the state than a narrow understanding of the common use test.
Dec 1, 2014
One reason it’s getting difficult to write about gun law lately is that the body of law is getting difficult for a part-time layperson to keep up with. That’s certainly the situation with this latest case going before the Florida Supreme Court. The media almost never gets the issues right in these cases, so I went and looked up the Appeals Court decision:
On December 29, 2011, the Bretherick family was on vacation in Central Florida, driving toward Downtown Disney, on a heavily travelled, six-lane divided road in Osceola County. Ronald Bretherick, the father, was driving in the middle lane westbound when, in his rearview mirror, he saw a blue truck rapidly approaching them. The truck almost side-swiped them as it passed in the right lane. As the truck passed the Brethericks, the driver, Derek Dunning, “stared at them in a threatening manner,” but made no statements or gestures.
Dunning’s truck cut in front of the Bretherick vehicle in the middle lane, slammed on the brakes, and came to a complete stop. There was no traffic or other impediment that required this action. Ronald Bretherick also stopped his vehicle, one to two car lengths behind Dunning’s truck. Dunning got out of his truck and walked toward the Bretherick vehicle. He was unarmed. Without exiting, Ronald Bretherick held up a holstered handgun, and Dunning returned to his truck without uttering a word.
After Dunning got back into his truck, the Defendant, Ronald’s adult son, got out of the rear passenger’s seat. He approached the driver’s side of Dunning’s truck within a few feet of the driver, while pointing the handgun at Dunning. The Defendant told Dunning to move his truck or he would be shot. Dunning misunderstood, and believed that the Defendant told him that if he moved, he would be shot. This slight but critical misunderstanding explains everyone’s subsequent actions.
The Defendant returned to his own vehicle and took up various positions, continuing to point the gun at Dunning. The Brethericks, Dunning, and several passersby all called 911. The Defendant’s mother and sister exited their vehicle and took refuge in a ditch on the north side of the road. The Defendant told his family that Dunning said he had a gun, but no one saw Dunning with a weapon, and the trial court found this not to be credible. At some point, Dunning’s truck rolled back twelve to eighteen inches toward the Brethericks’ vehicle. The police arrived and diffused the volatile encounter.
It’s difficult for me to see in this situation where the reasonable fear of grave bodily injury or harm was in order for Bretherick to be entitled to a self-defense claim. Again, this has nothing to do with a duty to retreat, the reasonable fear just wasn’t there by the facts presented. But the appeal that is proceeding to the Florida Supreme Court is based on the following question:
ONCE THE DEFENSE SATISFIES THE INITIAL BURDEN OF RAISING THE ISSUE, DOES THE STATE HAVE THE BURDEN OF DISPROVING A DEFENDANT’S ENTITLEMENT TO SELF–DEFENSE IMMUNITY AT A PRETRIAL HEARING AS IT DOES AT TRIAL?
NRA’s Amicus can be found here. I agree with NRA that the burden of proof should be on the state, but it’s difficult for me to see how in this case the state could not meet its burden even if that were the case. The Florida Supreme Court decision in Dennis v. State already started to outline the situation where pre-trial immunity can be claimed, by adopting this rule from a lower court:
Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.
NRA challenges the assertion that the burden is on the defendant to prove they are entitled to immunity, rather than the state proving they are not entitled to it. NRA argues the lower court’s decision was based on a Colorado law that is dissimilar to Florida’s, and goes on to argue that the state should have to disprove immunity beyond a reasonable doubt.
It’s difficult for me to understand how that doesn’t turn the immunity hearing into a trial in and of itself, with all the expense that would ordinarily accompany a trial. The advantage would be a chance to have a trial that at worst only results in another trial. It’s a bit of double jeopardy for the state.
Sep 25, 2014
The case is Binderup v. Holder, filed in the Eastern District of PA. The plaintiff was convicted years ago of Corruption of Minors for having sex with a 17 year old. In Pennsylvania, Corruption of Minors is a misdemeanor, but has a possible sentence of up to five years, so it applies for the purposes of a federal prohibition. Corruption in Pennsylvania tends to occur for one of two things, alcohol and sex. Often both. Furnishing liquor to minors in Pennsylvania can cost you your gun rights. So can sex between a 18 year old and 17 year old. The age of consent in Pennsylvania is 16, so the charge is not Statutory Rape, but Corruption of Minors is still an option for the prosecution.
This is an “as applied” challenge, meaning the statute was challenged as applied to this person’s individual circumstance. It was not a facial challenge to the statute as a whole. This would presumably apply to other persons similarly situated to this defendant. To read more details about this case, see Of Arms and the Law and also Alan Gura’s blog, who is the attorney who argued this case.
Slowly but surely, we are chipping away here and there. The other side may brag about our defeats, but we’ve also had some very important and circumstantial wins. There are a lot of people in Pennsylvania, who are no threat to anyone, who have gotten caught in this trap. Now there may finally be some relief for them.
Sep 23, 2014
It seems that as long as you have the right political views, you can break gun laws and get a slap on the wrist. If you don’t, you’ll end up facing serious charges and years in prison.
Compare these two situations:
1) In New York, an activist who promoted the SAFE Act that made carrying a gun on school property a felony even if the person has a license to carry, decided to carry his gun to a school after the gun control law took effect.
When the school was raided by SWAT officers and went on lockdown for a call about a man with a gun in the building, Dwayne Ferguson did not disclose that he had his gun. It was only when officers started patting down every person in the school did they find his gun. The school noted in their statement that he had an opportunity to disclose his possession to officers, and he chose not to do so, forcing everyone else to face a search.
For his refusal to disclose his accidentally carried, and otherwise licensed, firearm into a prohibited place, Ferguson’s charges were dropped from felonies and he received community service with a conditional discharge.
2) In New Jersey, a single mother from Philadelphia crossed a bridge with her license to carry a gun issued by Pennsylvania thinking that it applied across the border. It did not. When she was pulled over for a vaguely state violation, she willfully disclosed to the officer that she was a licensed gun owner.
For her cooperative attitude during her accidental carry situation, he had her arrested and the prosecutor considers her, as an otherwise lawful gun owner, such a danger to the community that he refuses to even consider the idea of a diversion program because it would mean she would not be put behind bars for years.
It would appear that having the right political views can go a long way in convincing a prosecutor not to press charges in these gun control cases.
Sep 10, 2014
Ce n’est pas un fusil
It is what you get when you have to rules-lawyer around a 80-year old law intended to prevent ownership of anything that wasn’t a hunting or fowling piece by the poor, then clumsily edited by politicians to exempt handguns when it turned out that an effectively-complete ban on anything that was smaller than a breadbox was politically untenable.
Now, Linoge notes that there are two pieces of arcane interpretation of unclear law that make this a pistol instead of Any Other Weapon or a Short-Barreled Rifle; and that the BATFE could change their minds at any time. I have to wonder, though, if the BATFE is wary of doing so given that the arcanities of the GCA that separate those three categories are actually quite hard to explain to the layman judge; and that they might have some difficulty keeping a prosecution based on where the lines were drawn in their own admin proceedings these days…
Historically, the BATFE has preferred to rule by interpretation rather than regulation, probably because there’s less oversight on that process. But it has bitten them in the nethers a few times, and with the decade-long trend of various pro-firearms-rights organizations willing to actually make federal cases out of infringements, I have to wonder if the BATFE permanent leadership is a little leery of what might happen in a real court instead of their administrative proceedings.
As a side note, I want one; but may not have one as long as I live in NJ. As a pistol, it’s way over the line of being an “assault firearm” (A semi-automatic pistol with a detachable magazine that has a magazine outside the handgrip, barrel shroud, weight of 50 oz or more, AND is probably a semi-automatic version of a fully-automatic firearm, well more than the 2 strikes permitted). Which reminds me, does anyone know why the federal ban and its imitators has that odd weight restriction?
Sep 9, 2014
New Jersey publishes the jury instructions online in PDF and DOC format (link is to a PDF table of contents). I once sat as a juror in an aggravated assault and unlawful use of a weapon case (a stabbing in a public place) where the defendants claimed self-defense. At this point, the details are unimportant, except that in the course of the trial I received an education in the standards by which actions in self-defense are to be judged in courtrooms in NJ. This, of course, is of utmost importance to know for anyone who owns a firearm and keeps it in functional condition, even more so if you plan on carrying a firearm in public (not an option in NJ for the regular person, of course.) It is, however, a good idea for anyone to be aware of, both for their own personal legal safety and also to be a well-informed person. Well-informed or not, I am not a lawyer, please consult one before believing anything or everything you read on the internet about the law.
One thing about jury instructions that I believe to be superior to reading caselaw and statute law and attempting to interpret, is that they are written to explain the law as-applied for the benefit of the layman, rather than a lawyer, judge, or legislator. Technical terms are explained in layman’s term, and while can lead to leaky abstractions, it’s good for an overview.
The section I’m going to be looking at in this post is found in Chapter 3 “General Principles of Justification” – specifically
JUSTIFICATION – SELF DEFENSE In Self Protection (PDF)
JUSTIFICATION – USE OF FORCE IN PROTECTION OF OTHERS (PDF)
JUSTIFICATION – SELF DEFENSE USE OF FORCE IN DEFENSE OF PERSONAL PROPERTY (PDF)
JUSTIFICATION – USE OF FORCE UPON AN INTRUDER (PDF)
The middle two I’ll just touch on briefly, as they are rather wordy explanations of some pretty simple concepts.
First, let’s look at the general case, Self Defense in Self Protection, excerpted below
The statute reads:
“The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”
In other words, self defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him/her of unlawful force. The force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defendant.
The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself/herself against death or serious bodily harm. Deadly force is defined as force that the defendant uses with the purpose of causing or which he/she knows to create a substantial risk of causing death or serious bodily harm. By serious bodily harm we mean an injury that creates a substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ.
For example, if one were to purposely fire a firearm in the direction of another person, that would be an example of deadly force. A mere threat with a firearm, however, intended only to make the victim of the threat believe that the defendant will use the firearm if necessary is not an example of deadly force.
A reasonable belief is one which would be held by a person of ordinary prudence and intelligence situated as this defendant was.
Even if you find that the use of deadly force was reasonable, there are limitations on the use of deadly force. If you find that the defendant, with the purpose of causing death or serious bodily harm to another person, provoked or incited the use of force against himself/herself in the same encounter, then the defense is not available to him/her.
If you find that the defendant knew that he/she could avoid the necessity of using deadly force by retreating, provided that the defendant knew he/she could do so with complete safety, then the defense is not available to him/her
So we have a proportionality requirement in NJ – you can’t use deadly force except in reasonable belief that such force is necessary and (for lack of a better word) proper. My problem with this is that the average person does not really believe that an unarmed attack may “create a substantial risk of causing death or serious bodily harm.” See, e.g, the Zimmerman “trial-by-press” or pretty much any self-defense incident where the attacker was unarmed. I don’t see this changing any time soon, either.
The really scary thing, from the point of view of use of deadly force in self-defense is the second highlighted passage. This one requires that the defender be a mind-reader, and be able to distinguish in the heat of the moment whether someone who offers a threat of violence is sincere about it or not, or is merely trying to scare the defender. I about fell out of the jury box when I heard that part of the instruction; as the judge made it clear that a mere threat was not sufficient. I am given to understand this is outside the mainstream of US law on self-defense, but I’ve not made any more than a cursory study of non-NJ law. So, in NJ it would appear you have to let them shoot/stab/swing first if you wish to use deadly force in self-defense (in public, anyway, see below). UPDATE: Mike, below, points out that the sentence actually refers to the defendant, meaning that the jury instructions say that you threaten to shoot someone as part of your self-defense, that is not considered use of deadly force. Since you can use force to defend yourself against the threat of force, it would appear that in the face of a threat of deadly force you may actually respond with use of deadly force. In theory, anyway.
Finally, there is a duty to retreat (with the apparently usual “in complete safety” caveat) prior to the use of deadly force (but not, apparently, prior to the use of force).
In all cases,
The State has the burden to prove to you beyond a reasonable doubt that the defense of self defense is untrue.
Which is something, I guess.
Use for force in protection of others is basically the same as using force in defense of yourself:
… the use of force upon or toward that person of another is justifiable to protect a third person when:
(1) The actor would be justified … in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect and
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.
Interestingly enough, the defendant’s knowledge of the situation, not the actual facts of the situation, apply
In applying this test [of reasonable belief] you are instructed to disregard any finding that the person in whose behalf (defendant) intervened was in fact the aggressor or that no defensive measures on his/her behalf were actually necessary, but you may consider everything defendant knew when he/she acted, including these same factors if you find that he/she knew them.
The rest of the instruction basically summarizes the duties and rights incumbent on the use of force on one’s own behalf, and would appear to be intended for use with the appropriate jury instruction for those cases.
Use of force in defense of personal property – you basically can’t use deadly force at all, and use of non-deadly force is limited in several ways. Since this is a firearms rights blog, and since actual use of a firearm is deadly force (and brandishing one without intent is unwise), I’ll give it a pass.
Use of force on an intruder is an exception to the general rule requiring retreat, and there is no direct mention of proportionality; though the instructions do not specifically disclaim proportionality. However the conditions under which a defendant is justified in using force include refusal of an intruder to disarm, surrender, or withdraw.
Under certain conditions, the law allows a person to use force upon another, and the use of such force does not constitute a criminal offense. The law exonerates a defendant who uses force (or deadly force) upon or toward an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.
For the force used by the defendant against another to be justified, the following two conditions must exist:
1. The other person (victim) was an intruder who was unlawfully in a dwelling. An intruder is one who is unlawfully in the dwelling–that is, he/she was not licensed or privileged to be in the dwelling. The term “dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is used as a person’s home or place of lodging. (A dwelling includes a “porch or other similar appurtenance.”)
2. The defendant reasonably believed that force (deadly force) was immediately necessary for the purpose of protecting himself/herself or other person(s) in the dwelling against the use of unlawful force by the intruder on the present occasion.
A reasonable belief exists when a defendant, to protect himself/herself or a third person, was in his/her own dwelling at the time of the offense or was privileged to be thereon, and the encounter between the defendant and intruder was sudden and unexpected, compelling the defendant to act instantly, and the defendant reasonably believed that the intruder would inflict personal injury upon the defendant or others in the dwelling, or the defendant demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.
If the defendant did employ protective force, he/she has the right to estimate the necessity of using force without retreating, surrendering position, withdrawing or doing any other act which he/she has no legal duty to do or abstaining from any lawful action.
Now, absence of evidence is not necessarily absence of evidence, but the two highlighted sections suggest that the normal rules of proportionality of force are suspended. This is definitely someplace I’d like actual legal advice on, though; but I’m not going to pay Mr. Nappen’s consulting rate to get an answer to, or buy his out-of-print book at over $100 to answer, at least not today. This eventuality was brushed over by the judge in the case I sat on the jury on (he did mention it, though, despite there being no chance of the defendants using this defense), possibly out of a sense of completeness.
Anyway, the state of jury instructions covering the use of force in NJ suggest that it’s not really a good idea if you have any alternatives, but it is an alternative in extremis.