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Another Bandwagon I Won’t Jump On

Joel Rosenberg seems to have gotten himself arrested for carrying in a courthouse complex. The Minnesota legislature was less than abundantly clear when it prohibited carry in courthouse complexes, but the case against Mr. Rosenberg is going to hinge on this:

Subd. 1g.Felony; possession in courthouse or certain state buildings.
(a) A person who commits either of the following acts is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both:

(1) possesses a dangerous weapon, ammunition, or explosives within any courthouse complex; or

(2) possesses a dangerous weapon, ammunition, or explosives in any state building within the Capitol Area described in chapter 15B, other than the National Guard Armory.

(b) Unless a person is otherwise prohibited or restricted by other law to possess a dangerous weapon, this subdivision does not apply to:

[…]

(2) persons who carry pistols according to the terms of a permit issued under section 624.714 and who so notify the sheriff or the commissioner of public safety, as appropriate;

There seems to be some dispute as to whether the office was notified. Rosenberg and his wife said they called. The warrant issued says there was never notification. If someone wanted to challenge this ordinance, the proper thing to do would have been to provide notice through certified mail, with return receipt, so there would be some means of proving in a court of law that you complied with the requirement. Never trust that the police are going to tell the truth! Now it’s going to be his word against the police that he complied with the statute. Who do you think the jury will believe? The courts, probably the same courts that issued the court order contrary to state law, will also get to decide what constitutes notification under the statute.

In short, I think Rosenberg is screwed. That doesn’t mean he’s wrong, but it does mean he wasn’t careful. I am not saying Rosenberg was wrong for challenging the law, nor am I saying he needs to lick the boots of the authorities, but if you’re going to set up to challenge a law, or unlawful court order, you need to line your ducks up very precisely, because failure to do so means court precedent the rest of us have to live with.

So I’m not going to jump on his bandwagon. He’s got guts, I’ll give him that, but so do protesters who light themselves on fire. A lot of people make the mistake of thinking the law is black and white. In most cases, it’s not. The law is what a court says the law is. Much like politics, this is a game, and also much like politics, if it is not played carefully, and with skill, everyone loses. I indeed hope Rosenberg has a good lawyer in this, because he’s going to need one. There’s probably no Second Amendment to appeal to either, because it’s a prohibition in court complexes, which would seem to easily pass Heller‘s “sensitive places,” language. It’s all pretty much going to hinge on that notice.

UPDATE: In the comments, it would seem that Mr. Rosenberg does have written evidence that the law was complied with. If he does, it will make his defense attorney’s job a lot easier.

40 Responses to “Another Bandwagon I Won’t Jump On”

  1. Patrick says:

    Nice analysis Sebastian, but have another look at the warrant. You’ll note that it says they called the “records division,” which means they called the clerk who processes accident reports for insurance companies and personal injury lawyers.

    They didn’t speak to the people Joel spoke to, and Joel has written evidence.

    I believe that this omission in willful and intentional.

  2. Patrick says:

    “in” – “is” – whatever.

    It depends on what the meaning of “in” is.

  3. Sebastian says:

    Ah, that changes the picture a bit, if he does have written evidence he had complied. I have updated the post. If he did this in consultation with an attorney, even better.

    I’m willing to be convinced this was a smart thing to do, but a lot of people aren’t careful when they challenge the law. On the surface this looked like one of those cases.

  4. Patrick says:

    Oh I don’t think it was smart, but I’m a lawyer. I’d have told Rosa Parks that the smart thing to do is to sit in the back of the bus.

    Change comes through the actions of courageous fools.

  5. Sebastian says:

    Good point. Though there were numerous arrests of that nature before Parks that the civil rights movement took a pass on because the defendants were less than ideal, and ultimately they ended up passing on Parks, IIRC, because her case would have had to go through state courts before it could become a federal issue. So I think that’s both a case for the point that change comes through courageous fools, and also through careful planning :)

  6. Miguel says:

    You have to be careful with the Civil Rights/Rosa Parks/Civil Disobedience angle. No matter how many battles have we won lately, there is still many in the opinion-making side of things that hate our guts. We will be portrayed as Racist Right Wing white wackos putting everybody in danger and not as people who believe in the Constitution. It has to be played smart.

  7. ZK says:

    I don’t know Joel, but perhaps he’s more concerned with his natural rights than making everyone who agrees with him look good? I know we’re all concerned with PR and test cases here, but some people just want to exercise their liberty to the fullest extent. I don’t have the stones, but I respect those that think that way.

  8. Sebastian says:

    Well, it’s valid to make comparisons. There’s a few books out there on the legal strategies of the civil rights movement, and there are a lot of parallels. I think any movement that goes to the courts to achieve a result has to be pretty careful. They had their setbacks certainly, probably more than we will have, but they won in the end.

  9. Sebastian says:

    Hey, I’m fine with that ZK, just don’t expect me to call you a hero. I have a certain amount of admiration for someone who’s just going to do what he thinks is right, consequences be damned too, but its worth noting that, absent a Supreme Court decision recognizing the right to own a machine gun, no one in the 8th Circuit, which includes MN, ND, SD, NE, IA, MO, and AR, has any right to own a machine gun whatsoever. That’s not going to bode well for sister circuits either.

    Fincher’s also a guy that has huge brass balls, but it didn’t help us get machine guns covered by the 2A.

  10. Pyrotek85 says:

    I wish him luck, it sounds like he prepared as well as he could. This reminds me of the law against carrying on school grounds in PA (mostly comes into play where voting is held at schools I believe). Strictly speaking, the exception to this law, which is ‘for other lawful purposes’, should cover legally carrying, but I don’t think anyone wants to be a test case.

  11. Sebastian says:

    That’s probably the crux of it. No one sensible would want to be the test case, because someone sensible would understand that there’s no guarantee. It probably takes someone a little off their rocker.

  12. Sebastian says:

    FWIW, I’d feel better about a challenge to PA’s school law than I would arguing for carry in a courthouse, under a poorly defined exception. “other lawful purposes” is also poorly defined, but self-defense, especially post Heller, pretty clearly is the most lawful of purposes to have a gun.

  13. Scott Jacobs says:

    To be fair, the building that is the “courthouse” is about a block away from a) where Joel actually did the lawful carrying of a weapon, and b) where the warrant said it happened.

  14. Carl from Chicago says:

    I don’t think it matters … but this seems entirely set up by Joel himself.

    He makes an appointment. Walks in. Sets up a camera. Begins filming. Takes off his jacket exposing a 1911 in shoulder rig.

    For better or for worse, there is no doubt in my mind that he wanted the confrontation.

    Maybe he’s wanting the makings of a lawsuit. I don’t know.

  15. Bob S. says:

    (2) persons who carry pistols according to the terms of a permit issued under section 624.714 and who so notify the sheriff or the commissioner of public safety, as appropriate;

    One of the things I’ve noticed is many people are jumping on Joel for not following the convoluted process set up by the sheriff.

    The process is an internal one set up, not by law, not by consensus but by law enforcement officials to make it difficult for people to exercise their rights.

    Why?

    Why do we allow hired help to set up arcane rules instead of common sense (see both sides can use that phrase) protocols?

    Commonsense protocols like “Hey, I’m here and I have a license to carry”.

  16. cryptical says:

    Sebastian,

    I took my last carry permit class from Joel, and he’s a stand-up guy who’s done a lot to advance the cause of gun rights here in MN. There are a couple of issues with this situation that are interesting. The carry law in MN allows for posting buildings to disallow carry, but they also prohibit government entities from posting, and the City of Minneapolis ignores that prohibition.

    Also, to get around the Sheriffs notification requirement the Chief Judges in a number of jurisdictions have ruled and posted that carry isn’t allowed in court buildings. It’s an end run around the law, and it’s probably unlawful. But you can sit in jail for a long time for contempt of court while that gets hashed out. There is apparently one courtroom in the building this occured, and the warrant was trying to leverage that fact into an extra charge.

  17. Ian Argent says:

    I’m going to chime in here – the main difference between Joel Rosenberg and Brian Aitken is that Joel went into this knowing what he was doing; and had a plan.

    Published press reports arent’ going to go into enough details to be able to decide whther that plan is a good one – between reporters’ biases and tactical information witholding ON BOTH SIDES, I’d wait and see what comes out in court.

  18. Scott Jacobs says:

    @Carl,

    Doesn’t matter if he did set this up. For one thing, Joel is not law enforcement, and thus can’t entrap anyone. For another, even if he did, Palmer had it coming. The guy – who’s job it is to explain the law to the general public – appears to be completely ignorant of the law in many regards.

    For example, you can’t collect fees for copies of documents obtained through a FOIA request.

    Which Palmer had attempted to do.

  19. Rob Doar says:

    I think you may have missed the point of the case.,

    First off, there is a legitimate question as to whether or not the Chief of Police’s office is part of a court complex. (They are entirely different branches of Gov’t)

    Secondly, Joel did not call the sheriff to notify. Like he informed me to do, He has a standing notification of his intent to carry whenever on county court property.
    I’m sure he received, as I did, a letter from the Sheriff saying that Judge Judy Swensen issues a court mandate in 2008 banning all “dangerous weapons” regardless of a PTC.

    My bet is they are saying he did not notify his intent to carry THIS time… 609.66 of our statutes do not say you need to notify each time.
    There goes the felony charge…

    What I think the heart of the matter is that the court mandate is illegal, and has not been challenged until now.

    MN Statutes 624.714:
    “Subd. 23. Exclusivity. This section sets forth the complete and exclusive criteria and procedures for the issuance of permits to carry and establishes their nature and scope. No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.”

    As the district court is undeniably part of the government, any efforts they exert to “change, modify, or supplement… or limit the exercise of a permit to carry” is illegal…

  20. Rob Doar says:

    Carl…
    Joel has been wearing that shoulder rig for quite some time.
    If you think Joel videotaping “proves” he was out to make a scene, read about his wife’s unwarranted arrest, holding, and 30 day expulsion from her home at the hands of the MPD on charges that were found baseless in court.

    Then and ask yourself if you would trust them? I don’t.

    On top of that Palmer had already tried to extort money for the public documents. I would have wanted that on tape if he tried it again.

  21. Matt Carmel says:

    Scott:

    Actually, FOIA expressly permits collection of reasonable fees for producing copies of records. There are exemptions for the press but if the information is for a commercial purposes, fees can be charged.

  22. Sebastian says:

    To me the big mistake Rosenberger seems to have made was in the open letter. The video I think was fine. Making fun of the authorities was fine. But the implication he might shoot a cop isn’t going to play well.

  23. Sebastian says:

    If he has a written letter back and proof of notification, I agree by the text of the statute he should get out of the felony charge. That would be the right thing for the courts to do. But that doesn’t mean that’s what will happen.

    It will be an interesting case.

  24. Scott Jacobs says:

    Rob,

    Don’t forget that the court order from the judge was for the court house. Joel wasn’t in the court house. That building is a block away from the building he was ACTUALLY in.

  25. Rob Doar says:

    @ Scott
    True, but City Hall is listed in the 2008 mandate, and there is a small claims court in city hall…. I would concede that the mandate would apply to the courtroom in city hall itself, but certainly not any other government office s in city hall.

    @ Matt Carmel
    reasonably fees can bee collected for COPIES but no fees can be collected for accessing the files. You can scan and make your own copies free of charge.

    13.03 Subd. 3.Request for access to data….
    the responsible authority may not assess a charge or require the requesting person to pay a fee to inspect data.

    @Sebastian

    I would not have posted the things Joel did myself, but I don’t think it’s fair to say that was “the mistake he made”.. his exercise of free speech does not, and should not have any bearing on the arrest. If he broke the law, he should have been arrested on the spot, not a month later.

  26. Sebastian says:

    I wouldn’t want to hang my hat on a small claims court not making the whole building a courthouse complex. But the notification aspect is pretty clear. Later on in the statute there’s a bit that does require permission, which shows the legislature knew how to require that if they intended to.

    I’m just saying it doesn’t help his case any, especially if this ends up before a jury. The Aitken case is an example of what can happen if you get the judge pissed at you. It’s still a travesty, but it happens. To me if you’re going to deliberately challenge a law, you need to be exquisitely careful. But I accept the point that someone who’s careful is probably too careful to try something like this :)

  27. Scott Jacobs says:

    The few courtrooms that are in the building have their own, separate security checkpoints, and thus are clearly separate from the rest of the building.

  28. Rob Doar says:

    @Sebastian

    I agree with you that his posting didn’t help. I certainly would not have done them.

    As far as the court complex comes down to, it’s really a matter of separation of powers…

    624.617 subd 23:
    Exclusivity. This section sets forth the complete and exclusive criteria and procedures for the issuance of permits to carry and establishes their nature and scope. No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.

    This prevents any body under legislative authority from banning the lawful carry of firearms.

    The courts (not being directly under the authority of the legislature) have the ability to mandate what goes on in the courts. Judges can (but rarely do) overturn other judges mandates.

    609,66 does provide the lawful course of actions for carrying in a court complex, but ultimately, the courts have the final say.

    Where they do not have any say is outside the Judicial branch… such as a police chief’s office (Executive branch)

  29. Sebastian says:

    Oh, it makes sense to me. If I were a judge I’d be happy to rule that way. But I’m not, and without existing precent on the matter there’s no guarantee this is going to come out the way everyone is hoping. Until there’s a court ruling, it’s just a good argument, it’s not yet law.

  30. Rob Doar says:

    “t’s just a good argument, it’s not yet law”

    Agree with you 100%…. unfortunately, it’s what Joel was arrested on.

    I don’t think that it’s a slam dunk by any means… The law is clearly on Joel’s side, but as you pointed out, he is at the mercy of the judges.

  31. Ian Argent says:

    We’ll get to see how intellectually honest the trial judge is, I guess. Probably not very if it’s the same guy who set $100K bail.

  32. Ian Argent says:

    Also, via Oleg I got this – http://news.ellegon.com/2010/12/12/a-long-time-minnesota-attorney-comments/ – some comments on the punitive bail.

  33. Anon says:

    I’m an instructor in MN, I’ve met Joel. He has a reputation among instructors here, and honestly it’s not a good one. He has repeatedly attacked other instructors on a personal. He is not a “stand up guy”.

    To listen to him talk you would think that he and he alone moved heaven and earth to get the new permit laws in place here. If you read his open letter, he plainly makes what can be interrupted as threats towards the police officer. I’m pretty sure that this alone will get him jail time. He isn’t a freedom fighter working towards the cause of good and right. He’s in it for Joel… we all saw this coming for him, and there is a definite lack of sympathy among local instructors, who view him as reckless, underhanded and a bit of an egomaniac.

    Yes I’m posting this as Anon, so I don’t fall victim to one of his smear campaigns.
    Like this one here against a fellow instructors who decide to charge less that 200$ for their courses.

    http://www.icanhazgunpermit.com/

  34. Scott Jacobs says:

    Hey Sebastian,

    Would you mind having a lil confab with Patrick from Popehat?

    It involves comparing IP addresses from Anon and a guy from PopeHat and several other blogs by the name of “Boo Who”…

  35. Anon says:

    This is the only blog I’ve posted this too, you have my permission to compare away. If you want to have a discussion with me go Sebastian go ahead and give my email.

  36. Anon says:

    *can’t type today***
    This is the only blog I’ve posted this too, you have my permission to compare away. If you want to have a discussion with me Sebastian you have my permission to go ahead and give my address to the above parties.

  37. rudytbone says:

    A little more on this case, including scans from the arrest warrant, which describe his illegal “describe behavior”.

    The judge did not even read the warrant before they signed.

    http://blog.bennettandbennett.com/2010/12/sgt-william-palmer.html

  38. Sebastian says:

    Sadly, judges just signing off on warrants isn’t unusual.

  39. Ian Argent says:

    Just ask Steve Jackson…

  40. Scott Jacobs says:

    Funny…

    Anon linked to a website that is linked to the handle being used by someone who has posted from the Minneapolis Police Department on multiple blogs regarding this incident…

    The latest at Popehat is, in my view, a clear threat to Joel’s safety…

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