Of Arms and the Law

Ev Nappen wins a pair in NJ

Ammoland.com has the report.

The best Rahm Emanuel autograph

Is one found at the bottom of a City of Chicago check to Second Amendment Foundation, for attorney's fees and costs, in the amount of $399,950. Looks like Alan Gottlieb holding it. OK, so it's probably an automatic signature, but the thought of how Rahm must have reacted to the news that it had be sent is amusing. Essentially, Chicago involuntarily becomes the funder of the next round of pro right to arms challenges.

D.C.

The District accuses 130 of its employees of unemployment compensation fraud -- they were receiving unemployment compensation while holding down District government jobs.

I was a little startled to see that the District employs 32,000 people. DC's population is about 617,000; Tucson's is 520,000, and Pima County's is over a million. Tucson employs 4,900 people, and Pima County another 5,000. The county has to provide services to over 9,100 square miles, whereas DC has to provide them to about 80 square miles.

Novel theory of civil liability

Questions presented: (1) did the defendant have a duty not to shoot bottle rockets from his fundamental orifice while drinking at a frat party? (2) was the explosion of one of those which did not escape its launching apparatus the proximate cause of plaintiff's backward leap and fall? (3) is shooting bottle rockets out of one's posterior, while drunk, an ultrahazardous activity subject to strict liability?

This is cert-worthy from the very beginning.

Fun at Knob Creek

Pro-gun attorney Dan Peterson has a weekend of fun at Knob Creek.

Bad advice of loss of gun rights, plea bargains to DV

State v. Nickolas Agathis, 2012 NJ Super. Lexis II (Feb. 1, 2012). Defendant was arrested for DV, plead to it, without being informed that under New Jersey law he would be permanently barred from obtaining a firearm purchaser ID card, effectively barring him from firearm ownership. His counsel and the judge informed him that he could reapply for the card at the end of probation. The appellate court relied upon Nunez-Valdez, a recent US Supreme Court ruling voiding a plea bargain where the defendant was told that the plea would not affect his immigration status, when in fact it subjected him to immediate deportation.

The court had previously heard the case on direct appeal, and refused to grant relief. The intervening Supreme Court ruling (and, in a footnote, the decisions in Heller and McDonald) appear to have changed the situation. Note that both this and Nunez-Valdez hinge, not upon failure to inform the defendant of collateral consequences, but on the defendant being misinformed with regard to them.

Another noteworthy aspect: the appellate court treats this as ineffective assistance of counsel, but I think it's better analyzed in terms of whether the plea was "informed," regardless of the source of the misinformation. The fact that part of the advice came from the trial judge, rather than from counsel, should, I think, make the case stronger.

Hat tip to reader Alice Beard...

Handgun rationing dies off in Virginia

The House had already passed a repeal of "one gun a month," and today the Virginia Senate passed it. The governor has said he would sign it, so it appears that gun rationing is on its way out.

Appeal in Moore v. Madigan (Ill ban on carrying)

No Lawyers, Only Guns and Money, has the story. The case challenges Illinois' effective ban on all carrying of handguns. The trial court dismissed the case, with some extremely sloppy reasoning (along the lines of "McDonald just dealt with possession in the home, so anything beyond that is outside the right to arms" and "rights are not unlimited, this is a limitation, therefore it is valid" and even "I think plaintiff will lose at trial, so I dismiss his case right now."

A notice of appeal was filed within hours, so we can hopefully look forward to another stunning Seventh Circuit ruling.

Pretty lame....

AG Holder claims he's never discussed Fast and Furious with President Obama, DHS Sec Napolitano, or Sec. of State Clinton. I suppose cabinet meetings deal with things more important than agencies committing acts of war against an allied nation....

Cato: armed civilians are tough targets

By Clayton Cramer and David Burnett (head of Students for Concealed Carry). Here's a summary, and here's the study.

Cato has also established a webpage to track defensive gun uses.

Blog beginning on the Waco tragedy

Mike McNulty has established a blog relating to Waco. Mike was the producer of the Oscar-nominated "Waco: The Rules of Engagement," and played a major role in reopening the case. Among other things, he managed to discover that the Texas Rangers had an "evidence locker," more like a warehouse, of evidence in the case.

I did some public records requests for him, and the results were most peculiar. The Rangers said that they had picked up the evidence in their capacity as deputized US Marshals, and couldn't turn it over without the Marshals' Office consent. So I sent a FOIA to the Marshals, and they denied knowing anything about it. I went back to the Rangers, and they said, if I remember, that the US Attorney had control of it. So I made a FOIA to the Executive Office of US Attorneys, and they denied they had any control. At that point the head of Texas DPS, which is over the Rangers, got involved and really blew the thing open.

Social media and criminal cases

Investigator (and former policeman) Paul Huebl has some interesting thoughts on the subject. These may be good approaches for a firearms owner charged under, for example, the New York laws.

The origin of the Sullivan Act

NY Post: The Strange Birth of NY's Gun Laws.

I researched the Sullivan Act for an amicus brief. Tim Sullivan started it out as a very narrow bill -- it just made unlicensed concealed carry a 3 year felony, rather than a misdemeanor. Then NYC's medical examiner lobbied him to pul all the other provisions in, and he agreed. But when he spoke on the floor, which he hated to do, he only talked about the three year penalty.

Even as first enacted, in 1911, it was nothing like what we see today. It required some dealer paperwork, but not registration. There was no provision forbidding open carry. It applied only to handguns. The permits were "may issue" to the max -- as in a felony could get one, if the judge allowed it. (The only bars were to juveniles and non-citizens_/

US Attorney Dennis Burke and Fast and Furious

A very interesting article on his background. As a Senate aide,

"And he began working on gun control. DeConcini said Burke helped draft the Anti-Drug Assault Weapons Limitation Act of 1989. A five-year battle ensued, ending with President Bill Clinton signing the Violent Crime Control and Law Enforcement Act of 1994, which made it a federal offense to possess certain semiautomatic rifles manufactured after the law's passage.

DeConcini said Burke fostered the measure in concert with a key figure in the White House, policy analyst Rahm Emanuel, who years later would become chief of staff for President Obama. Emanuel now is mayor of Chicago.

"Dennis was the one who worked with everyone on the Judiciary Committee to line up these members and votes," DeConcini said. "Dennis had all these pictures of these guns -- the Streetsweepers and the AK-47s. And it passed by one vote. A lot of it was not my eloquence on the bill, it was stuff that Dennis had done."

The law was adopted shortly before Burke left his Senate job for a position in the Clinton White House as a senior policy analyst for law enforcement and drug issues, again working with Emanuel.

According to preserved e-mails, Burke continued handling firearm issues, discussing whether executive orders could be used to extend the Brady Handgun Violence Protection Act requirement for background checks.
. . . . . . .
During a news conference in 2010, Burke complained that scores of guns from Arizona were being recovered in Mexico. "We have a huge problem here. We have now become the gun locker of the Mexican drug cartels." What Burke did not mention was that his prosecutors had allegedly instructed ATF agents to let some of those weapons "walk" across the border.

In fact, just one month after Burke's appointment as U.S. attorney was confirmed by the Senate, Operation Fast and Furious was secretly launched in Arizona.
. . . . . .
In an April 2010 e-mail to a colleague, Burke predicted that the operation would have a huge public impact: "It's going to bring a lot of attention to straw purchasers of assault weapons," he wrote. "Some of these weapons bought by these clowns in Arizona have been directly traced to murders of elected officials in Mexico by the cartels, so Katie-bar-the-door when we unveil this baby.""

Case on use of machine gun in crime

Story here. Federal law provides a 30 year mandatory minimum for use of a full auto in a violent crime. The question is -- does it require that the defendant knew it was full auto? (In this case, a real AK).