SOME GUN LAW OBSERVATIONS

SOME GUN LAW OBSERVATIONS I conduct a seminar for lawyers which focuses on gun law violations which are not readily thought of in their daily practices. For a long time the federal government has prosecuted tens of thousands of federal gun violations under 18 U.S.C. §922(g) and its sub parts. In this post, I want to provide a bit of a window on how a person can run afoul of a federal law much more easily than you might think. One of the most commonly charged violations is what lay people and some ill informed or lazy lawyers call “felon in possession”. The federal statute does not actually state felon it merely proscribesi.e., prohibits, anyone convicted of an offense punishable by imprisonment in excess of one year from possessing a firearm. Last term the U.S. Supreme Court radically changed the foundations of filing, or at least proving that charge. In Rehaif the Supreme Court found that such prohibited person had to know their status as a prohibited person or they were not guilty of the statutory offense. With the rapidly changing landscape vis-a-vis state marijuana laws, it is important to understand what is and is not federally legal. First, one needs to understand the “Abstention Doctrine” related to these state changes. Simply stated it means the federal government has elected not to prosecute marijuana users for their possession and use of personal quantities of marijuana. Marijuana is still illegal under federal law and is punishable by incarceration in the Bureau of Prisons operated by the federal government. That said, a second issue arises which is not as clear. Again a reminder that “abstention” is a discretionary decision by the federal government. Just because they have not prosecuted does not mean they cannot prosecute. Let’s take Joe, or Jane for that matter, Citizen who lives in a state which has some form of legalized marijuana use. Joe and Jane also are gun enthusiasts. They enjoy going to the local gun range and popping off a couple of boxes of ammunition at paper targets. They are upstanding members of their community. They volunteer to coach youth sports, they are active in parent/teacher associations and they are involved local civic activities. Neither has ever has so much as a parking ticket and neither would ever take advantage or harm another person. The would not lie or cheat another person and they have always paid their taxes on time. They are the epitome of reputable citizens. Most everyone admires Joe and Jane for their high moral character and untarnished reputations. One day, an enterprising investigator or prosecutor employed by the federal government decides to make a name for him/herself by “getting guns out of the hands of illegal drug users”. They subpoena the records from the state medical marijuana oversight agency. They also go to all of the local gun stores and require the owner or manager to produce the ATF Form 4473 which identifies everyone who bought a firearm from that store. They go to gun ranges and obtain logs of those who registered to use the facilities to fire their guns. Joe and Jane our erstwhile couple see the headline: LOCAL FEDERAL PROSECUTOR TO CLEAN UP ILLEGAL DRUG USERGUN POSSESSION. They look at each other and are pleased that law enforcement will be taking care of “those people”. Jane has a medical marijuana card which isregistered with the proper state authority. Her name, address and other personal information is now in the hands of the federal investigation. Jane recently purchased a small caliber pistol for self protection because she worksin a part of town has had an increase in street crime like mugings and purse snatchings in recent weeks. One woman victim was seriously injured being badly beaten during such a crime. However, to get the gun, she had to fill out a Form 4473 and await the National Instant Check approval – which she got. One early morning, not quite sunrise, Joe and Jane hear a loud banging on their front door. Quickly throwing on their robes they rush to see what all the commotion is about. Just as they get to their front door it flies open and in charge six large men dressed in black body armor with the words FEDERAL POLICE printed on both the front and back. They have guns drawn and are yelling at Joe and Jane to “get on the floor” (but much more crudely than stated here). They are also yelling something about warrants which doesn’t make sense to our couple – surely this is all a big mistake. Both are rolled onto their stomachs and told to put their hands behind their backs. Not complying fast enough their arms are grabbed and twisted into submission. Their shoulders wrenched and hurting they are stood up and taken out to awaiting law enforcement vehicles. The lead agent throws a copy of the search warrant on the coffee table in the living room and picks up the marijuana container which was sitting there. The container goes into a bag with big red letters EVIDENCE imprinted on the outside. Guns, laptops, computers, smart phones, pipes and other items are similarly seized and placed in other bags. Meanwhile our befuddled couple are sitting handcuffed in separate cars, so they cannot speak to each other. They are each informed that they are being arrested for violation of federal firearmslaws. Joe is bewildered, the whole episode is so nightmarish that he cannot comprehend what is happening. Jane is in no better shape, sitting handcuffed in a car on a public street frightened and confused. Soon they will both be being processed – a procedure called “booking” which will take their mug shots and fingerprints. They will be taken before a United States Magistrate Judge for an initial appearance wearing their orange jail issued clothing. The Magistrate Judge willsay a bunch of things which while legal and necessary they don’t’ really understand. Each of them have a lawyer appointed to represent them, who has advised them of the procedure for that day and how this is just the beginning of the prosecution and makes sure they understand the charge against them. The foregoing is a hypothetical but it is real not fanciful. As a matter of law Joe and Jane have violated federal law by using marijuana an illegal controlled dangeroussubstance as defined by title 21 of the United StatesCode and possessing firearms which is prohibited by 18 U.S.C. §922(g). The punishment for this offense is not more than 10 yearsimprisonment and/or a fine of not more than $250,000.00 or both such fine and imprisonment. I have seen an increase over the last several months in §922 prosecutions – many involving allegations of offenses not normally charged. All the more reason to remember my admonition these are your rights use them or lose them always request a lawyer before answering any questions and always assert your right to remain silent.

Police Powers Where Are We Headed

I have seen a couple of news stories this past week which bear on issues I have brought to your attention in these blogs. These have to do with arrest, that is the legal Constitutional concept of seizure as defined by the 4th Amendment to the U.S. Constitution.

The troubling part of the stories I saw were the arrestees were both small children. Six years old in one case, a child having a bad day and acting out, kicked a school staff member after being grabbed by that member. Inappropriate conduct to be sure and requiring correction and discipline. But to call the police and have a six year old arrested and booked, complete with mugshot photograph and fingerprinting is unconscionable.

My daily life is full of law enforcement contact. Sometimes it is regular police officers that you would likely encounter on your daily routines. More often, my encounters are with the alphabets, i.e., FBI (Federal Bureua of Investigation), DEA (Drug Enforcement Administration), ATF (Bureau of Alcohol, Tobacco, Firearms & Explosives), USSS (Secret Service), ICE (Immigration and Customs Enforcement) or HSI (Homeland Security Investigations). While I see discussion worthy issues across that spectrum, today I want to focus on the local police department and its
officers.

When I was a young lawyer there was a distinct line between the local police and the military. I served a military career before becoming a lawyer and understood that role and its limitations. Over the last almost 20 years there has been an evolutionary shift in the police self-perception which has taken on a decidedly militaristic tone. Some
people are fond of trotting out the “new normal” mantra. There is no new normal, there is abnormal trying to find a place in our society. Unfortunately, many are far too willing to grant acceptance to this mis-belief. The Constitution today says exactly the same thing today as it said in 1791 when the 4th Amendment became part of that document.

Arresting a six year old suggests a lessening of both legal and common sense. But it is indicative of the above referenced abnormal which places a facade of security in the place of rights. This “security” mentality drives the local police to acquire such military equipment as battlefield helicopters and Mine Resistant Ambush Protected (MRAP) tactical vehicles. The military is precluded by federal law from engaging in civilian law enforcement, outside of the declaration of martial law, so the local police department is being militarily equipped. It seems that there is a militarization which defeats the purpose of law enforcement, which is to serve the public interest. They are law enforcement officers not soldiers. I have had younger law enforcement officers openly tell me of their disdain for the legal system which they are employed to serve. They seem eager for the battlefield and approach law enforcement as an extension of combat.

Dehumanizing nominations of citizens encountered or arrested, such as skells, perps scum or worse devalue the individual and make arresting six year olds seem reasonable. While the officer involved in this six year old’s arrest was terminated, it speaks to a larger problem which a simple firing does not address. How does someone get to the point that this arrest would seem to be permissible? Once citizens awaken to the fact that they are not on the same team as law enforcement they will then realize their need to take better stock of what is happening. Our rights are constantly in jeopardy, it is a truism that eternal vigilance is the price of freedom. But this vigilance cannot be limited to looking for offshore threats. Be civically active. Participate in your local community to insure it is being operated legally and ethically and humanely.

These are your rights – Use them or Lose them.

Attitudes

Due to the needs of clients, the sudden arrival of Summer and other factors, it has been too long since I was available to share with you my thoughts, opinions and information regarding the criminal justice system.

When last we had an opportunity to visit, it was Law Day. A lot has happened since that Spring day which have invoked or implicated the criminal justice system. An accused child-trafficker and molester was accused, detained and dispatched (by his own hand). Attacks by persons nominated White Supremacists have increased and two major shootings have filled the headlines. Fingers have been pointed and demands for action made. I saw a T-shirt on a woman at a fast food place last night which read, “Moms Demand Action” and referenced guns. Calls for stricter background checks and for the prohibition of certain types of firearms. The Supreme Court ended its term with some significant decisions which affect your rights as a citizen accused and in one case they made federal firearms prosecution a little harder for the government.

When these stories appear on the local or national news, modern practice seems to be an attempt to elicit a response from the viewer. The days of straight reporting in the vein of Chet Huntley, David Brinkley, Edward R. Murrow and others seems somehow quaint in today’s “if it bleeds it leads” media environment. The Paul Newman movie [WUSA] from 1970, has a scene in which Pat Hingle’s character cynically tells Paul Newman’s that the news is like music, “people respond to it if you treat it right”. You might be wondering what any of this has to do with the criminal justice system. It is a valid question. The connection is such machinations affect the persons who are called to be jurors. It has become decidedly more difficult to maintain objectivity in this country with the rhetoric always rising to a shrill pitch regardless of its position on the political spectrum.

If the criminal justice system is to work as it is intended, then we as citizens need to resist the harsher edges of our society from hi-jacking the process. The appeal to mob rule is always strong, pleas by each side are emotion laden and superficially appealing. I am going to take one example, because it lends itself to the point. A shooter in El Paso, TX killed 22 people and injured 24 others. In Charleston, VA James Fields drove his car into a crowd killing one and injuring 28 others. Since the El Paso shooting there have been repeated demands for banning certain weapons and
for stricter background checks. Since the deliberate drive down in Charleston there have been no calls for car control or greater scrutiny of driver’s license applications. Logic would then dictate that killing and maiming with a car is less of an outrage than killing with a gun – this is, of course, preposterous. But it demonstrates the point of using bad acts to further unrelated agendas. These acts are about the attitudes of the people who committed them not their choice of weapons. Those who choose to kill on a large (or small) scale will find a way to carry out that desire. It is also not about mental health. Few mentally ill, that is crazy people, are violent. These attacks are done with sane minds but wrong attitudes.

From a criminal defense point of view, something does need to be changed. But bringing back the “Assault Weapons Ban” is not the answer, it wasn’t the answer when it existed. Banning cars won’t stop killers from killing. What we need to change is our attitude collectively. You as a potential juror or as a potential defendant should want a society which has not had its most important institutions undermined by those with a political agenda. When you sit on a jury, the only matters which should concern you are the facts of the case and the law to be applied. Then you should hold the prosecution to its proof beyond a reasonable doubt. I have heard a radio commentator deride this standard and call it a legal fiction, a criminal defense trick. It is not. He contended that all people violating the law by doing drugs should be convicted and sent up to prison. This same commentator, alternatively wanted all sorts of consideration when it came to light that he had an opioid addiction sufficient to warrant a criminal investigation and charging. This
commentator hired and excellent lawyer and worked a probationary deal with the charges being dismissed if he completed the probation. He continues to rail on the radio against the very things he used to go free.

We should all strive to be more circumspect when we are viewing events on the news or in our daily goings and coming. Rather than becoming immediately outraged or angry or other negative emotion, let’s take a breath and ask why is the story being presented in such an emotional manner. Notice when the newscaster tells you how you are going to feel by the next story. Why are you being set up? Reject the invitation to be part of the mob. It will make you a better citizen and a better juror. It might even help if you become a defendant. Next time, I hope to take you through the process of the investigation and filing of a criminal matter. It will, for many, be an eye opening trip.

As always, your rights use them or lose them.

Law Day 2019

Today is May 1, 2019, celebrated as Law Day in the United States. As federally recognized special days or semi-holidays this is a rather recent addition. The former Soviet Union celebrated May Day to commemorate International Workers Day. Soon this evolved into a display in Moscow’s Red Square as a major military parade with hundreds of flowing red banners celebrating international socialism and communism. Many countries around the world still celebrate the observance of a workers day in their struggle to achieve better pay and working conditions.

In the United States the response during the Eisenhower Administration was to proclaim May 1, 1958 as Law Day in the United States. Later in 1961, the United States made Law Day a statutorily recognized special day of celebration in 36 United States Code §113, which states in part:

Law Day, U.S.A., is a special day of celebration by the people of the United States—
(1) in appreciation of their liberties and the reaffirmation of their loyalty to the United States and of their rededication to the ideals of equality and justice under law in their relations with each other and with other countries; and
(2) for the cultivation of the respect for law that is so vital to the democratic way of life.

With the current tensions in our society there could not be a more perfect time to reflect on the purpose this day stands for – and to remember that it must be observed more than on one day.

We must remember that our society is founded on principles which reach across political, social, ethnic, racial, religious and economic status. We each have a duty to treat each other civilly in our discourse and with respect. This does not mean we surrender our honest beliefs or give up our principles. But we must always examine our own beliefs and principles to align with the ideals of equality and justice under the law for all people.

Racism and religious bigotry are not new, they have both been with us for centuries. But we, in doing our part to making this country a more perfect Union, must stand for what is true and right without fear or malice of our own. We must look injustice in the eye and say this shall not stand. We must look religious bigotry in the eye and say you will not prevail. We must look racism in the eye and say you do not belong in our society.

“We are a nation of laws not of men.” That maxim has been uttered time and time again. But we must make it reality and not a hollow shibboleth. We as citizens must embrace the cause of truth, justice and equality personally every day. Like the ripples in a pond these concepts flow out from a single act. Just as injustice, inequality and racism flow out from a single act. If we see such acts we must admonish the offender to stop, but we must be mindful that much injustice and racism is born of ignorance and we must be a teacher not more. Wrongful beliefs are no less deeply held and no less resistant to change than are rightful beliefs. We must reach out to those who would reject the foundations of our nation – not with judgmentalism and acrimony; but with compassion and nurturing so they may see the better path and the futility of prejudice, bigotry and racism. That all men and women are entitled under our Constitution to equal treatment, free from oppression, and bias.

No country in history has ever been perfect, ours included. But the founders of this country had a vision to build a society unlike any previous nation. As human beings we are subject to our own frailties and poor judgment. But we must strive to be the best we can be in order to advance the goals of the founders to create a more perfect Union. As the late author and playwright, George Bernard Shaw once said, “You see things; and you say “Why?” But I dream things that never were; and I say Why not?” Let us dream things which never were; ending injustice, ending religious bigotry, ending racism, and say, “We did it.”

Searches and Seizures What Are They?

Let’s look at some typical situations and discuss whether or not, as a matter of law, they constitute a search or a seizure.

You are driving on a city street or a highway and make a lane change without proper signaling or are slightly over the posted speed limit. In your rear view mirror you notice the familiar red and blue flashing lights. You take a breath and then pull to the side of the roadway. The officer approaches your car and asks for your license and insurance verification, which you dutifully provide through your rolled down window. At this point in time you have been legally seized. Your acceptance of his apparent authority to stop you is your submission to the seizure. What can the officer do at this point legally? Can he remove you from your vehicle? Can he put you in his car? Can he search your car? The answer to the first two questions is an unqualified yes, he may do both of those things. Further, while he has you in his car he may ask you questions about your travels, your plans, your hurry, your life. These are all fine, so long as he does not extend the stop to do so. He will call for information regarding your license validity and whether you have any wants, warrants or other issues which pose a potential hazard to him personally. But can he search your car? Not on the facts we have here so far. Assuming your license is valid and you have no other detainable issues, he should issue you either a citation or a warning and let you go. Now is where the situation changes. Once you have received all of your documents back – you are free to go. Thank him/her get out of the car and leave. Legally you are no longer seized and if you stay it is of your choice – that is, it is voluntary. Do not engage in any attempt at “small talk” with the officer at this time. This is where the average person gets lost. The officer is looking to get you to consent to a search because he lacks probable cause to do it on his own. The officer has no legal basis for continuing this seizure, is aware of that deficiency and wants you to provide it for him. Remember this is not about whether you have anything to hide, this is about letting the government agent (police officer) rummage through your personal effects to his satisfaction. It is about surrendering your right to “be let alone” at this point.

Sometimes the officer will “up the ante” when a person declines the request to search. This is done generally by threatening to “bring the drug dog” to sniff your car. Implicit in this is the dog will alert to your car because you are hiding drugs. Or at a minimum your stop will be further delayed until a drug dog can be located and brought to the scene. These are ploys nothing more. Legally, the officer cannot extend the stop to have a dog brought to the scene. As this situation usually happens after you have declined permission to search; your declination cannot be used as a cause to search your car. In fact (and law), once the reason for the traffic stop is concluded the officer cannot even get a dog out of his own vehicle and do a “free air sniff” around your car if that in any degree extends your seizure. Some of you probably noticed that I did not say let the dog search. Dogs legally do not do searches they do “free air sniffs” to alert to the presence of contraband. This “alert” then provides the officer the probable cause for him to search your car. Like the old drug slogan, when asked about searching your car, “Just say No” and leave.

One more point to be made about this. Do not equivocate. State clearly, politely and directly, “I do not consent to a search of my vehicle, unless I am under arrest I am leaving.” I have seen cases where people refused and then stayed to muck up their refusal. Don’t second guess the officer. Don’t say “Well your gonna do what you want.” That opens the door to a search and is not a refusal.

I have spent a considerable amount of time dealing with traffic stops mainly because this is an area which is most rife with seizure and search issues. There are many gray areas and you as a citizen must be fully informed to place you on a level field with the officer. He will not tell you what your rights are nor what legally you can do to thwart his intent. That is your responsibility not his.

Many years ago the Supreme Court announced what is called the “automobile exception” to the 4th Amendment. Essentially, the High Court found that because the automobile was indeed mobile certain rules could be somewhat relaxed regarding searches. Mainly this has been in the need to secure a warrant prior to conducting a search. In 1982, the Supreme Court held that an officer could search a car as thoroughly without a warrant as he could with a warrant, if he believed he had probable cause to do so. If the officer found “contraband” then that suspicion was
confirmed. Surprisingly, that justification is rarely used by the police. Once that assertion is made and the search conducted, if it leads to a custodial arrest then the officer will be required to explain that thinking to a lawyer in a later hearing. It is just easier to get consent.

In these posts I hope to provide you with some basis for understanding the criminal justice system. I do not do this as your legal counsel or in any way to act as your representative. However, this information is intended to help you navigate any contacts which you may encounter with law enforcement. Your first choice should, as I have stated previously, be to retain competent counsel at that time.

As always these are your rights, use them or lose them.