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Marcus Vipsanius Agrippa entered the chariot. The crowds in Rome had already swelled to thousands; the general could hear the cadence of his name being chanted outside the stable doors. With pride, he held the railing of the chariot and looked down at his lieutenant and nodded. The soldier pushed forward the stable doors letting the light from the Roman sun enter. The horses began pawing at the ground as the sound of the crowds grew to a fevered pitch as they realized the general was about to emerge on his triumphant ride to the Temple of Jupiter. Agrippa felt the floor of the chariot tilt as the appointed slave entered the chariot behind him. The slave, standing behind Agrippa, lifted a laurel wreath above his head as the chariot lurched forward towards the open door. The sunlight beamed down upon them as they emerged onto the street and the embrace of thousands of citizens. Suddenly, the general felt the breath of the slave against his ear. He looked forward stoically knowing the phrase that was about to be uttered, and would be continuously uttered, by the slave along this short journey to the temple.
Remember, you are simply a man.
Last week, days before the election, Undersheriff Don Barnes came into Artemis. We talked about last night’s election and the implications, not just for our local races, but nationally as well. Clearly, his mind was focused on the home stretch. He felt confident, but also was keenly aware that there was still work to do. As he was leaving and standing in the lobby, our discussion turned to leadership, but from a more philosophical standpoint.
He related the story of the slave and the general above, and said that that principle has been the guiding principle of his career in public service. Regardless of power achieved, regardless of authority at his disposal, at the end of the day, he is simply a person.
I had never heard of this Roman tradition and quickly did a little research. The value of this choreographed act was not lost on me, especially from a people that had such reverence and, frankly, a healthy distrust of their standing army. The army of Rome was not allowed to cross the Rubicon River en masse for fear that it had the ability to overthrow its civilian leaders in the Roman Senate. Still, the people of Rome loved their army… and especially the exalted generals who led the army into their numerous victories over the enemies of Rome. This adulation of soldiers could have very easily led to the arrogance of the individual, the rise of the cult of personality, and the ultimate fall of the Republic.
How appropriate, then, was it to remind the general at the height of his triumph: Momento Homo, a statement uttered not by a cautious Roman senator, not even by a paranoid emperor, but a reminder given by a simple slave.
It is widely noted that President Ronald Reagan (Ronaldus Magnus), was fond of saying, “Anything is possible, anything can be achieved… as long as you don’t care who gets credit for it.”
Many of us are put into positions where our actions and decisions have the capacity to greatly affect our fellow citizens. Some of us chose those paths… for others, the paths were chosen for us. Regardless, humility is as critical as decisiveness and, at times, ruthlessness for those who help secure the blessings of liberty and freedom.
I love to quote the political historian Arthur Schlesinger, Jr. “Unilateralism [read the arrogance of the leader that has forgotten that he is “just a man”] breeds the arrogance of ignorance, and ignorance breeds bad policy.”
Evil arose again…
This time it came in the form of a middle-aged monster who came to realize that his persuasive powers were inadequate… and, instead, chose to impose his tyrannical views on others through violence.
A devout anti-Semite, he collectivized a group of people into a singular homogenous unit. “Jews” are the problem, and the only rational response to the inherent threat of a Jewish population in his relative vicinity was to engage in an act of violent extermination.
The horrific nature of his crimes notwithstanding, I am honestly curious as to what he thought the end game here would be. Was this to be his John Brown “Harper’s Ferry” moment? Was he expecting thousands of like-minded anti-Semites to rally around his twisted flag and begin a mass extermination of their Jewish neighbors? Was he expecting to be executed by law enforcement and go out in a blaze of glory becoming a martyr to the white power cause? Or did his reasoning stop at, “Yeah… this will be a good idea, let’s do this!”
As many of you know, I am Jewish. Religiously, well, not so much… even culturally Jewishness falls on a spectrum. There are people in my family who are far more Jew”ish” than I am. Other than the occasional matzo ball, and lighting the menorah at Hanukkah, my Jewishness is marginal at best. (My law partner, though, did give me those cool Star of David grips for my 1911, so I guess that is something). Still, when a group of innocents is targeted for despotic destruction I tend to identify with it, this instance probably more so… for those who would seek to destroy a person because of their antisemitic views couldn’t care less about how their targets see themselves on the spectrum of Semitism. The monster in Pennsylvania would have been more than happy to include me or my daughters in his list of victims as the other congregants.
The nature of his animus is steeped in mythology and tribalism. Antisemitism always has been. Ironically, the very nature of antisemitism led to the intellectual development of the Jewish people as a whole. During the Renaissance, Jewish membership in trade guilds was prohibited. Jews in Europe did not have the ability to become skilled labor. They were left with few alternatives to earn money. Some avenues that were available to them were mercantilism, law, and medicine. Thus, our forefathers became pivotal members of growing societies. Still, they oftentimes remained cloistered in their communities, thus making less successful individuals suspicious of them.
Nation-states have used antisemitism as a means of controlling and inspiring their populations, and individuals have adopted antisemitism as a means of rationalizing their own failures, and perceived failures of their own communities.
Eradication of this way of thought is impossible. If not the Jews, then it will be the Sheiks, if not the Sheiks, it will be the Catholics, and if not the Catholics it will be the Muslims. There will always be another tribe that receives the animus of the disaffected. To make sense of their inadequate world they will not see the tribe as a collection of individuals, but rather a singular evil unit… something that must be marginalized and destroyed.
(If you have arrived here from our newsletter, continue reading here…)
The funny thing is that that animus runs both ways. The disaffected monster does not need by any means to be a member of the “white patriarchal ruling class”. Antifa shares the identical views as the murderer in Pittsburgh. The goblins who attacked us on 9/11 were kindred spirits with the tyrant in Pennsylvania. The thug who drives a vehicle into a crowded marketplace is no different than the subhuman who shoots up a church, or a synagogue, or a mosque. They collectivize their enemies, and seek to impose their will through violence.
So if defeating them is not an option, how do we protect ourselves from them?
Speed, surprise, and explosive violence of action are the answers.
A flock of sheep, as it grazes, is protected by sheep dogs. They are charged with protecting the sheep from wolves, and they do so mercilessly.
During the last few years many congregations have taken it upon themselves to develop security teams, made of congregants themselves to bear arms and be prepared to defend the defenseless in their sanctuaries.
Not all have agreed with this approach.
“God will protect us! Having guns in our house of worship is an abomination!”
God gave us the inalienable right to exist. With that predicate right, came the right to use violence to preserve our very existence. That right is not abrogated because people choose to worship in their house of God. Quite the contrary, you can never surrender that right to anyone, even if you misguidedly choose to do so.
Someone who is prepared to bring violence to a community of people must understand that his or her actions will be short-lived and be met with extreme and overwhelming violence. The decision to victimize a group of worshipers will never end with escape or arrest. It will be nothing more than a failed suicide mission.
Hardened targets are rarely attacked by singular individuals for just that reason. While we must protect those who cannot protect themselves, we must also stand for the principle that those who can protect themselves must.
As we approach the midterms, I am frequently asked who we, at Artemis, endorse for office. Typically, we refer people to the CRPA website to see its endorsements and avoid staking a direct political position ourselves.
There is a thought-out reason behind this.
Artemis Defense Institute is, and always has been, dedicated to the preservation and protection of the Second Amendment. Personally, I tend to go beyond this and focus on civil rights protections as a whole. That said, I completely understand that not everyone shares my political philosophy. Sandy, for instance, is far more socially conservative than I am.
Because our clients come from across the political spectrum, we tend to focus our public analyses on how elected representatives act to protect our Second Amendment rights. Their political party, or other political positions, are not part of the study. By relying on the CRPA, we know that the candidates it endorses have been vetted, and have views on the Second Amendment that are consistent with ours and our clients.
This week, though, I am going to violate that rule and specifically endorse and encourage you to vote for a couple of candidates.
First on the list is Undersheriff Don Barnes. There are two candidates who are running for Sheriff in Orange County: Don Barnes and Duke Nguyen. The differences between the two camps are stark. Don has been a manager of the sprawling Sheriff's Department, and Mr. Nguyen comes from the Los Angeles District Attorney Criminal Investigations Unit. It is unclear what, if any, management experience Mr. Nguyen actually has.
More importantly is Mr. Nguyen’s apparent stance on the issuance of CCW permits. Don Barnes built the CCW infrastructure in the Orange County Sheriff’s Department that took the number of permit holders from roughly 300 to well over 18,000 in less than four years. He was the individual who removed the innocuous restriction that limited us to only three guns on our permit and replaced it with the current unlimited amount.
This makes sense since Don is a shooter himself. The rank and file of the Sheriff’s Department is solidly behind Don, and has good reason to be. He has, throughout his career, earned the respect and admiration of the deputies under him, and the endorsement of the retiring sheriff, Sandra Hutchens.
If you live in Orange County, are concerned about the continued efficient operation of the Sheriff’s Department and, more importantly, the continued CCW policy… then you must vote for Don Barnes. The key word in that last sentence is “vote.” Midterm elections typically have a moderate amount of enthusiasm attached to them… but more about this in a bit.
The other two candidates who require our support are Representative Dana Rohrbacher and Representative Mimi Walters. Both candidates are fending off extremely coordinated efforts from a national level to flip their Congressional seats. Both are ardent supporters of the Second Amendment so, on first blush, Artemis would have no issue in supporting them.
However, the nature of this election requires us to go beyond simple tacit support.
A vote for either of their opponents is, in actuality, a vote for Nancy Pelosi.
The Democrats, who maintain a platform of continued restriction of your fundamental rights of self-defense and firearm ownership, see the opportunity to take control of the House of Representatives. If this happens, the Speaker’s gavel will be handed back to Nancy Pelosi, and the serious gains we have made on a national level will be halted at best, and potentially reversed at worst.
Both Walters and Rohrbacher are highly qualified patriots and deserve to retain their seats in their own right. Both are somewhat independent of their parties as well. Rohrbacher is far more of a libertarian, a passionate advocate for individual liberty and property rights. Walters leans toward a more traditionally conservative political philosophy. Both, though, are true patriots.
All that pales to the reality of what will happen if they were to lose their Congressional seats and allow the House to flip.
There is a lot at stake here, not just for our county… but for the country as a whole.
That brings me back to a point I promised to expand on earlier… your need to vote.
If you read my blog, it means that you are a patriot (Yes… even my spooky friends up on the hill… you are patriots too!). As a patriot, you have a moral obligation of personal sacrifice in the service of your country. For some of us this sacrifice takes us away from our families and puts us in harm’s way. For others, we must sacrifice our time for service to our nation. Some of us… well… have made the ultimate sacrifice. Yet, we all do have one unifying burden that we must bear… we are called upon by our country to vote. This action is such a simple one, a minor inconvenience that has been made substantially less burdensome through mail-in voting. Voting is a simple sacrifice that has potentially cosmic consequences.
You have a duty… a moral obligation. Make the time, and get your vote counted.
“Excuse me, Officer, I have a question.”
“Go for it, but just so you know I am a retired officer.”
“Oh, okay… well, there is this colleague of mine, he is a Libertarian.”
“Oh, good Lord.”
“Yeah, I know… right?!”
“So, what can I help you with?”
“Well, he is always spouting off about how we need to expand freedom, and he accuses me of being a Collectivist since I advocate government regulation of his life.”
“The thing is… some of my fellow employees are starting to listen to him. They are starting to question the benevolence of the State.”
“It gets worse. Some are now actually thinking about voting against the established power structure and seeking to change the system!”
“I see. What do you think I should do?”
“Well, when your coworker starts to criticize the system, kick him.”
“What? You mean literally kick him?”
“Yep. Use force, take him to the ground, then start kicking.”
“Oh, okay. So use physical force to protect our ideology.”
“Thanks for your advice!”
What you just read above was a fictitious conversation between a citizen and a cop. In that conversation the law enforcement officer expressly advocated the use of violence by the citizen as a means of enforcing adherence to his ideology. Unfortunately, last week essentially the same conversation took place between our nation’s former head law enforcement officer and a group to whom he was speaking.
Former Attorney General Eric Holder got a little fast and furious with his language during a speech. He started off by gushing about his relationship with Michelle Obama, then took her pronouncements to task. He pointed out she said that when the Collective’s political opponents “go low” (whatever that means), her minions need to “go high” (again, the phrase is confusing, but we will be charitable and figure she is suggesting civil discourse).
Holder would have none of it.
He said that when enemies of servitude go low, we need to “kick them.”
That statement is crystal clear.
It is also spectacularly dangerous.
There are two ways to achieve a change in behavior in someone: one is through persuasive speech, the other is through the use of violence. Traditionally, we outsource the use of violence to a third party… the State.
There are times when the outsourcing of this violence is impractical (see justifiable use of deadly force in self-defense). Other times, the implicit threat of violence by the State can create enough of a deterrent to prevent antisocial behavior on the part of its citizens toward one another.
When the State itself becomes threatened by competing ideologies, the State will often use force, or the threat of force, to strike terror into the hearts of its citizens to force compliance with the State’s wishes. (The use of Stalin in the conversation above was not done by accident).
In a democratic republic we understand that social discourse changes and evolves over time. We understand that competing ideologies are absolutely necessary for the health of a nation founded on the principles of limited government, and the precept that power comes from the people who have acquiesced to limited regulation for the purposes of securing individual liberty.
Since the late 1930s, our government has abandoned these principles to a large degree and become an expansive entity with the goal of deeper entanglements into the lives of its citizens and the self-preservation of the entity itself.
The current administration has begun a process of deconstructing that paradigm, and the Collectivists are understandably concerned. What is worse, is that the general public seems to be accepting, and in many instances, favorable to this new ideology.
The power of persuasive speech on the part of the Collectivists is quickly evaporating in the wake of empirical evidence to the contrary. The regulations of the State are being removed, and in some cases eviscerated, and yet the Earth still continues spinning around the Sun. African American unemployment is lower than it has ever been, and female employment numbers are higher than they have been in 50 years. Hispanics are now reported to support President Trump (or at the very least his overall agenda) by 40%. The prospect of identity politics as a wedge to protect the Collective is literally falling apart before our eyes.
Those who are dependent on the Collective…. (not the citizens made subservient by it, but rather the administrators, and the Mandarins who help organizations navigate, or exempt themselves from it)… are justifiably frightened. For it is only a matter of time before the general public sees that the “Emperor has no clothes” and the need for the Collective is overrated.
Without the ability to persuade with reasoned logic, the Collective now turns to the only alternative it knows… violence.
Expect to see more of this.
“The men of America need to shut up and step up!” -Senator Hirono (D) from Hawaii
“Since his judicial philosophy is outcome determinative (Where the hell she came up with this is beyond me), he is not entitled to due process.” -Senator Gillibrand
“Potzie! The Fonz jumped the shark!” -Ralph Malph
So… Judge Kavanaugh is now Justice Kavanaugh. Because of this, the Republic is stronger. The Constitution is safer. The precept of limited government has been advanced… and we are more divided than ever.
This has not been a war between the Republicans and the Democrats. It has been a war between the Collectivists, or the Statists if you like, and those who are either motivated by Constitutional principles or conservative values.
Senator Lindsey Graham stated it best, “Never before has the disparate parts of the Republican party been so united. Fiscal Conservatives, Religious Conservatives, and Libertarians are all united against the outrageous display presented by the Democrats.”
He is right.
It might also be enough to keep these disparate groups motivated enough to go to the ballot box in November and slam the Democrats.
Why the vitriol against Kavanaugh?
If you think it had anything to do with sexual assault, you have not been paying attention.
The sexual assault allegations did not become public until the Democrats realized they were literally running out of options. There are two potential reasons that Senator Feinstein sat on the letter from Dr. Ford. It was either that she thought it was wholly without merit, or it was meant all along as a method of derailing the confirmation at the very last minute. The first option shows the Democrats’ desperation, the second one belies their Machiavellian nature. We will never know conclusively which option controlled.
There were some gems, though, to come out of this chaos. Most telling was a belief system that is entirely morally bankrupt, with literally trillions of dollars at stake. Yes, this is at its heart a financial gambit. A majority conservative court could potentially upend trillions of dollars in regulatory control and attendant industries that exist to navigate the regulatory network. Power is obviously always at stake, but power and money are inexorably linked.
As referenced above, Senator Gillibrand claimed that Justice Kavanaugh was not entitled to due process. Since the Senate does not act as a court, she stated, the rules of evidence do not apply, nor does the presumption of innocence. She went further to state that since his judicial philosophy is “outcome determinative” (probably one of the greatest examples of psychological transference ever displayed), he should not be entitled to a presumption of innocence.
Let me be clear: The court system did not create the presumption of innocence… basic moral philosophy did.
The courts have adopted the underlying moral tenant, for the very basic rationale that it is the highest form of good.
To suggest that the presumption of innocence should not apply outside a courtroom belies a morally bankrupt philosophical belief system. A presumption exists regardless; it is up to us as a society to determine if the presumption should be of innocence or guilt.
Senator Gillibrand would just assume that all people are presumed guilty, and must independently prove their innocence. To be fair to her, this is consistent with her and her party’s social policy. We are, by definition, all “guilty,” and as such are all simultaneously victims. This victim culture requires a third party arbiter to enhance the power of the victim class to counter the burdens they deal with on the part of their oppressors.
This, frankly, does nothing to enhance the putative victim, since she is more interested in enhancing the power of a class of victims, as opposed to the actual singular victim.
What it does do is create a Byzantine, and often contradictory, regulatory environment that promotes wealth creation. Wealth, on the part of the Mandarines, who are knowledgeable enough to navigate or modify the regulatory environment on behalf of clients.
When the presumption of innocence is erased completely, and the presumption of guilt is used as a replacement, the power of the state is dramatically increased.
But what about the Fonz?
Happy Days was a consistently top-rated show. Season after season viewers tuned in and accepted the reality of the Cunninghams, and saw their own lives mirrored in theirs. Then the show traveled to Hawaii for a special series of episodes. There, the writers had the iconic Fonz character avoid being eaten by a shark while waterskiing by literally jumping over it. Viewers immediately began leaving the show in droves. This was not their life. This was not relatable to them. This was… well… silly.
When a story arch pushes too far, too beyond what the audience is willing to accept, it is now said to have “jumped the shark.”
This last week we saw the Democrats “jump the shark.”
We will see if any of their constituents tune in for the midterms.
So much to talk about…
Many of you are expecting this blog to be about Brett Kavanaugh and the spectacle that is taking place in the Senate.
There are other things, though, that demand our attention. Specifically, legislation that Governor Brown both vetoed and signed that directly affects our gun rights.
First, though, let me kvetch about the nonsense with the confirmation.
Senator Lindsey Graham articulated the issues with this process during last week’s sham hearing with an eloquence and passion that far exceed my communicative abilities. If you have not seen his explosive soliloquy during the hearing, I highly recommend you Google it. He laid bare the real reason the Democrats have sought to bring a delay to the Kavanaugh nomination, and the scorched-earth policy they are willing to engage in to secure their aims.
Those who think that the Democrats are standing up for women’s rights are sorely misguided. They are exclusively interested in maintaining control of the Supreme Court, and are prepared to do whatever is necessary to achieve that end, even if it means the utter destruction of a family who has dedicated itself to public service.
Their indignation is hollow. Their protestations are devoid of merit. “Let the FBI investigate!”… an utterly silly request. So be it… now they have their wish and, already without any statements made by the FBI, they are demanding more time… “How can the FBI investigate in just ten days?! They must have more time!”
Please. Just say what you want: Wait until after the midterms when we have a shot at control of the Senate, and we can keep this seat unfilled until 2020.
I agree with Senator Graham. “They want power so bad, and I hope they never get it!”
We will talk about this more in depth in the coming weeks.
However, now we do need to talk about an important piece of legislation Governor Brown signed last week: SB 110 prevents anyone under the age of 21 from purchasing a long-gun.
After the Parkland shooting, the collectivists lost their minds. “We need to prevent people under 21 from buying long-guns!” Yeah… that’s the ticket.
So let’s think about this logically.
Young adults achieve the age of majority at 18. With that, they become a full-fledged adults with all the rights and privileges of a full-fledged members of the polity. They are empowered with the single most important responsibility our country recognizes: the ability to vote for their own representatives. Unique to California, they also have the ability to act essentially as a representative at large; they can vote directly on propositions. Essentially, they can bypass the legislature and vote on propositions that affect our policies, as well as our treasury.
They are also completely responsible for following the admonitions of the great social contract: The California Penal Code. No longer do they have the ability to claim lack of capacity. They are responsible for their own contracts and their own behavior, for they are equal to each citizen in our State.
Well… sort of.
While we have decided they are entitled to First Amendment protections, Fourth Amendment protections (Yes, Cosmo… even Third Amendment protections), in fact, all of the protections of the Constitution… we have decided to create a “carve out.” They are now not entitled to Second Amendment protections.
Why stop there?
Seriously. Why should we limit the controls of the State to simply abrogating the Second Amendment?
Why not also restrict 18 to 21-year-olds access to the protections of the Fourth Amendment?
We already know that a massive amount of crime is committed by young men aged 18 to 21. In fact, arguably, some of the most egregious crimes are committed by this age group.
Repeatedly, law enforcement officers screw up and improperly collect evidence. Defense counsel exploits this and has that evidence excluded. Some would argue this process is an abuse of the Fourth Amendment itself. In the interest of public safety, why not simply prevent people under 21 from exercising their Fourth Amendment rights?
The right to an abortion is said to be found in the “penumbras” of the Constitution. (Yeah.. I’m still looking for those too.) Is this to be the next attack on a woman’s right to choose… the restriction on the use of “penumbras?”
And what is the social benefit we achieve by artificially limiting access to a Constitutional right? Will the inability to legally buy a long-gun prevent a massacre? What evidence exists to suggest anyone will be safer? Does a murderer have his aspirations assuaged simply because a specific method of killing has been proscribed? How did people kill each other before the advent of firearms? Oh yeah, edged weapons. Will we now seek to prevent those over 18, but under 21, from having ownership of knives? Or cars? Why not prevent those under 21 from driving? Think of the lives that will be saved! Let’s ignore that many of these young people may be serving honorably in the U.S. Military, and have actually been sent into harm’s way. Still we don’t trust them to have the same tools to defend themselves in their own homes.
But let’s not talk of substantive results! As long as we all feel good about the intentions… Well, that’s all that matters, Constitutional protections be damned.
This last week was a busy one for the Law Offices of Lieberman and Taormina… a good one, but a busy one!
We successfully disposed of a case involving a weapon brought to a school by a school administrator. (Yes… even administrators screw up sometimes!) We also took care of another “gun at the airport” case. Sadly… there seems to be too many of those! CCW holders… check your bags three times before heading to the airport! Then we had a really unique case that I want to talk to you about.
The Law Offices of Michel and Associates, as many of you know, provide some absolutely outstanding work in firearms law. Many of the appellate cases that you have all come to know and love have been litigated by the Chuck Michel and the lawyers at Michel and Associates.
Early last week, as I was driving back to Artemis from a court appearance in Long Beach, I received a phone call from two of the attorneys at Michel and Associates. They had a case set for a preliminary hearing in Van Nuys on Thursday and felt that the case would benefit from an expert witness. They were calling to see if I would be willing to testify as an expert.
“What is the fact pattern of the case?”
“So, our client is a gun-parts manufacturer. He is not an FFL, but makes accessories for AR-15s and sells them at gun shows. He was at the Big Reno gun show last year with his assistant, an 18-year-old kid. When they were packing up to leave, the kid accidentally took a bag from the neighboring vendor who was also packing up. When they got back to the shop in the Valley, they realized that they had this extra bag. Inside was an HK 93. (Note: an HK 93 is a specifically enumerated assault weapon pursuant to CPC § 30605(a).) They contacted the other vendor and asked if they should ship the weapon back to him. He told them to hold onto it and simply give it to him at the next gun show. The client then disassembled the weapon into its component parts to keep it from being classified as an assault weapon. Subsequently, he had contact with law enforcement that ultimately resulted in a search of his shop. During the search they found the disassembled HK 93 and contacted the LAPD Gun Unit. The Gun Unit determined that since the receiver was stamped with HK 93 it constituted an assault weapon under 30605(a) and arrested him for felony possession of an assault weapon. We need to educate the judge during the prelim to explain that the weapon in its component state is not a semiautomatic firearm and, thus, not an assault weapon under 30605(a). Would you be willing to write a report and testify as an expert on firearms law as to the analysis required for determining when something is an assault weapon?”
"Done. Give me the courtroom and time, and I’ll be there. I will write the analysis tonight.”
Honestly, being asked by Michel and Associates to be its expert was extremely flattering. That said, I was also righteously indignant about the case as well. Based on the established facts, the client was doing his best to be compliant with California law. In my opinion, he had satisfactorily complied with California law as it relates to a 30605 analysis. (He may have violated firearm transfer laws, but he was not charged with that). Regardless, the LAPD Gun Unit did not do a proper analysis when arresting, and the DA, I would later learn, was completely clueless as to the proper legal analysis necessary to prosecute.
CPC § 30605 prohibits the possession of an assault weapon. This then takes us to § 30510 which reads: The firearm must be a semiautomatic. Then under § (a) (9) it specifically enumerate an HK-93 as being an assault weapon.
So, to do this analysis we first need to determine if the weapon is a semiautomatic firearm. The California Department of Justice has done an exhaustive analysis of what does, and what does not, constitute a semiautomatic firearm. Cal Code Regs. Tit. 11, § 5471 states:
“A weapon clearly designed to be a semi automatic, but lacking a firing pin, bolt carrier, gas tube or some other crucial part of the firearm is not semiautomatic for the purposes of Penal Code sections 30515 and 30605(a).”
Since the HK 93 was disassembled into its component parts, it was not a semiautomatic firearm. Since it is not a semiautomatic, the analysis ends there. The LAPD Gun Unit simply considered the stamped receiver sufficient to be considered a semiautomatic, thereby ignoring the admonition cited above.
The day of the preliminary hearing, the attorney from Michel and Associates and I met early to go over my testimony and review my report. We met the defendant, a nice man who was clearly nervous about the hearing. His business has been thrown into disarray since the arrest and he has been living with the Sword of Damocles hanging over his head.
The DA reviewed my report and the brief that counsel had prepared and admitted flat-out confusion. He stated he is not a “gun guy” and would let the judge decide.
The arresting officer from the Gun Unit also showed up. He would act as the State’s “expert witness.”
We cajoled the investigator out of the courtroom and into the hallway and told him our legal theory. He stated that the policy of the LAPD is that a stamped receiver is a firearm. We agreed that a stamped receiver is a firearm, but it is not a semiautomatic. He looked over our brief.
As he read the brief we heard the golden sound:
He put the brief down and looked at us.
“I think you are right.”
“It is not our policy, but I think your analysis is correct. Well… it is up to the DA what he wants to do.”
“Actually, it is not. He told us he is relying on you.”
“Okay, I’ll go talk to him.”
We went back into the courtroom and watched as the DA and the investigator conferenced in the corner. Finally the DA came up to us.
“Okay, there appears to be a change of circumstances now. I’ll move to dismiss.”
Five minutes later, the DA dismissed the case against the client and the case was over. The client hugged us and cried in the hallway. He could now go on with his life.
While I would like to proclaim that justice was served that day… and for the most part it was, I cannot help but be distressed over the fact that the client literally had to go through hell for no other reason then a misapplication of the law by the State.
Regardless… it was a good day.
I love this blog.
It is my opportunity to spout off about intricacies of law, social policy, tactics, guns and, occasionally, really important stuff like my daughters and my wife.
Then there are the times that the subject is directed by you, dear readers. Typically, you ask me to write about my thoughts on current events. Occasionally, you ask me to deconstruct fairly complex legal cases. Other times, you ask me more prescient questions: When can you shoot a dog?
So… let’s get into it then, shall we?
All joking aside, this is a legitimate question. People are concerned with their personal safety, and while we typically think of scenarios where multiple attackers are trying to overtake our fixed position, most engagements are far more… pedestrian.
Animal attacks are a real thing. There are many law enforcement officers who have had to experience the unfortunate necessity of shooing an aggressive dog, and even wildlife officials who have had to put down non-domesticated animals.
The question that was posed to me in an email last week was essentially two part: What are the circumstances in which you could use your firearm to protect yourself or your family from an attacking dog, and what are the circumstances in which you could use your firearm to protect your own dog from an attack from another dog?
So… to begin with, we need to establish exactly what a domesticated animal is.
While many of us pet owners consider our dogs, cats, goats, chickens and horses, to be members of the family, in reality they are our property. To be even more specific, they are personal property, or chattel (not to be confused with real property, which is real estate). While there are some states that do allow for the use of deadly force for the protection of real property (holdover laws from our pioneer days), and even personal property when the personal property is an absolute necessity for survival… (a cattle rustler could be engaged with deadly force during the commission of the crime, and you couldn’t steal a horse back in the days of the Old West due to the unique nature of the horse to the cowboy’s survival)… most of those laws are antiquated, if not fully repealed.
Since we must equate a pet… say a dog… with non-unique personal property, we must analyze a fact pattern consistent with the dog having the same legal standing as any other form of personal property, be it a pen, a watch, a wallet, or a refrigerator.
(Begin reading from here, if coming from the Email)
We cannot use deadly force to protect against the destruction or theft of a refrigerator, no matter how imminent the threat or destruction is. We can only use deadly force for the preservation of human life. To protect against the loss of property, we use insurance.
So, with that analysis in place, let’s go back to the first hypothetical posited by the questioner: When could you use deadly force to protect yourself, or your family, against an attack from an aggressive dog? (We can also expand this to include aggressive cat, aggressive coyote, aggressive bear, or aggressive narwhal.)
Essentially, the answer turns on the operative law: Is there a reasonable belief that there is an imminent likelihood of death or great bodily injury? If the answer to that question is yes, then the doctrine of necessity kicks in. While it may be illegal to discharge a weapon within city limits, or use a firearm to take a protected species, the results of following the law will cause the imminent death or serious injury of the victim. As such, the victim now has an affirmative defense against the imposition of the prohibition of the use of deadly force.
Now… that being said, this is also a fact-dependent analysis. If the pit bull is about to chomp down on the head of the vicim, that is considerably different than the “victim” climbing to the top of a cinder block wall and taking careful aim at a sleeping pit bull 20 feet away.
What if the “victim,” though, is not a person but the family pet, as the second part of the question suggests? When can you use deadly force to protect what is essentially personal property?
The answer is, for the most part, never.
Remember, you can only use deadly force to preserve life, not property… and we have already defined a family pet as property.
Again though, this is somewhat fact dependent.
“Why did you shoot that coyote?”
“Well, officer, I shot him because I was in fear for my life! He was about to attack me! I was cold and afraid! I want some water, and I need to change my pants.”
“Okay, where was your pet poodle during this?”
“Fifi? She was in the coyote’s mouth.”
Sandy suggested that I write about “Americanism,” this being a direct result of the outlandish display of buffoonery that took place last week at the Kavanaugh hearings, as well as a general boorishness that has supplanted civil discourse.
But what is Americanism?
That phrase has been used as a pretext for patriotism, and like all “isms” seeks to create a sense of tribalism. It is “us vs. them,” and you are either on our side or you are not. More to the point, core philosophical principles are simply pretext for propaganda. The true core value of all “isms” unmoored by strong philosophical underpinnings is power.
One of the reasons that our Republic was able to survive in its nascent years was a belief system that transcended petty political jockeying. To be sure, there were entrenched battles between the Federalists and the Anti-Federalists, but these battles were set against the backdrop of a true belief of the core values of freedom and property.
Today the State has become so encompassing, such a dramatic influence on the lives of individuals, that party affiliation has become somewhat of an anachronism. The question for most is not what is the proper role of government; rather, it is should government be given greater funding for a particular “thing.” Those who argue that the government should not be involved in the “thing” in the fist place are considered rogue libertarians, radicals, or in a last resort, the all-too-used moniker of racist.
Last week, an article was published in the New York Times under the nom de guerre of “Anonymous.” Anonymous is, if he or she is to be believed, a senior administration official who has announced that he or she is “part of the resistance.” This resistance is made up of like-minded individuals who work in the administration who are putatively Republican, and are interested in a Republican vision, but consider Trump to be too unsteady, too pugnacious or, perhaps, too ill-tempered to advance a national agenda. (Evidently, the fact that he was elected serves little value for this group; they are smarter and, thus, in a better position to guide the country… sometimes at the disadvantage of Trump himself.)
The line that has received very little attention in the article, but stood out the most to me was Anonymous’s admonition that he or she is not part of the “Deep State” (Obama holdovers who are part of the civil service, evidently dedicated to the dismantling of the Trump agenda). Rather, he or she self-classified as part of the “Steady State.”
I must admit this was the first time I ever heard that phrase and, frankly, it sends chills down my spine. Yet “Steady State” is probably an excellent descriptive name.
“Steady State” is the edifice of Statists, the architecture of Collectivists and, unfortunately, the philosophically bereft manifestation of modern “Americanism.” For Americanism is directly related to the State and its control over a willing and compliant polity.
Land of the free and the home of the brave.
What exactly does that mean?
We are free to practice whatever religion we choose? Well, yes… as long as the practices of that religion do not run contrary to the social decisions of the State. We are free to say whatever we want? Perhaps… as long as the State does not put pressure on academia and publishers (read Internet providers) to muzzle content. Free from unreasonable searches and seizures? Only in the most egregious of circumstances… and even then, the Fourth Amendment has suffered degradation almost from the point of ratification.
Well… what about free to keep and bear arms?
Please… we live here in California.
Freedom from the quartering of soldiers? Well, most of us would agree that this is not a common threat, but Cosmo makes a solid argument that the justification of quartering of soldiers was not a right sought after because the British were soiling the sheets and raiding the cupboards of the colonists. Rather, it was ratified to protect us from State intrusion into a person’s home. The quartered solider was an agent of the State and, as such, when quartered in a colonist’s home, prevented him or her from the privacy needed to… well… rebel against the State. Today we don’t need soldiers in homes… we have Alexa and the National Security Agency.
We are brave though. We are willing to overthrow the shackles of tyranny and stand up against an abusive government that is unresponsive to… aw, hell… forget it. I am just going to move to Arizona and tell California to stick it.
Yep… home of the brave.
So what then is the “Steady State”? The basic phrase speaks to the idea that government control is a necessity for an orderly society. Who benefits from the control will sway based on which party occupies the government seats of power during any particular time, but the government industrial complex… well, that will remain safe and secure.
Without the nameless bureaucrats who control the minutiae of our economic and social lives, how could we possibly survive as a country?
This country was founded on the idea of rugged individualism. A belief that the intellectual power of a single individual is sacrosanct, and has the same legitimacy as anyone else. Even if he were wrong, his passioned defense of his position made us all stronger for hearing his argument, and out of necessity responding to it. Yet, at the core was a belief that there needed to be limited government, for when government has the power over the individual, the growth of the individual is by necessity stifled.
Americanism? No… I think not. American Patriot? Yes. I like that much, much better. As an American Patriot, I hold dear the philosophical principles of our Founders. I believe that civil discourse is the only pathway to philosophical improvement and the development of common ground. I believe that a government granted limited powers to regulate the affairs of its citizens is, by definition, a small government and, thus, easily purged of tyrants and the inept. I believe that justice should not be dependent on the tired, lazy, or corrupt. (Cosmo… you know who I am talking about!)
I am an American Patriot. I am the defender of liberty as beautifully articulated in the Declaration of Independence and codified in the Constitution, protected by the blood of other American Patriots successfully for generations.
I am an American Patriot. I look with disdain on those who would sacrifice their freedom for security or comfort. For when that occurs, the freedom of those who disagree are jettisoned as well.
“I’ve never thought of using my gun as an offensive weapon.”
“In the class you were talking about using deadly force to protect someone else, essentially being offensive in the use of the weapon.”
“Yeah… no… that is a misunderstanding of what I was saying. Using deadly force to protect someone other than yourself does not rise to the level of offensive action. Quite the contrary, the analysis remains the same.”
This exchange took place over the weekend while at the range during one of our classes. Our student had misinterpreted what I said about the use of deadly force for the protection of third parties. It bears some some discussion.
The use of our weapons in a deadly force event has a singular purpose: The preservation of human life. That life may be our own, it may be the life of a family member, or it could, conceivably, be the life of someone we have never met. The act of using deadly force to protect someone other than ourselves does not rise to the level of an offensive action. Rather, by definition, it remains a defensive act.
Let’s review the basic tenet of the justifiable use of deadly force: Did the actions of the suspect rise to the level where there was an objectively reasonable belief that there was an imminent likelihood of death or great bodily injury to a victim? If the answer to the inquiry is yes, then victims have an inherent right to continue to exist. Along with that right comes the precept that they have the right to use violence in order to prevent someone else from extinguishing their existence.
When we see someone about to suffer a life-ending event at the hands of someone else, we have the ability to legally “step into their shoes,” and use deadly force for the benefit of the victim. Our actions are judged based on two separate analyses: 1) Did the victim, whom we were using deadly force to protect, have the right to use deadly force to protect himself in the first place? and 2) Did the victim dispositively rebut the presumption that he would use deadly force to protect himself?
This second prong is actually quite tricky. Imagine the hypothetical where the abuser is about to kill the victim. The victim realizes the CCW holder is about to intervene on her behalf and tells the CCW holder to stand down. “Don’t shoot… he is my boyfriend!” is a refrain that comes to mind. Essentially, at this point the CCW holder has little recourse. The CCW holder presumes that, but for the victim’s inability to use deadly force to protect herself from the assailant, the CCW holder would. In this case, the victim has just emphatically stated she would not… essentially rebutting the presumption.
Of course, the first prong of the analysis is just as important: Do victims have the right to protect themselves in the first place? If a murderer is being chased by a cop and a gun fight ensues, the suspect has no right to use deadly force to protect himself from arrest. Thus, a third-party entering the fray to protect the suspect would equally have no right to use deadly force to protect the suspect.
Think of the multiple instances where CCW holders have come to the aid of law enforcement, situations where the citizen has employed deadly force to protect the officer, who is in a state of extremis.
There, the officer has an absolute right to continue to “exist.” He is in the throes of combat where an assailant has gotten the upper hand. But for an intervening event, the officer is about to suffer death or a crippling injury. In short, it is objectively reasonable to believe the officer is about to suffer an imminent death or great bodily injury. The CCW holder comes to the aid of the officer, employing the use of his firearm. There is nothing to suggest the officer would not relish this assistance from a Good Samaritan. He has made no statements or utterances telling the CCW holder to back off, and it is reasonable to believe that someone similarly situated would request assistance.
The action of the CCW holder is not an offensive one.
Quite the contrary, it is a quintessential act of self-defense. Only in this case… self-defense via proxy.
We do not carry guns, or train in the use of arms, for the purpose of engaging in offensive acts. To do so would be both illegal and immoral. We train for the singular purpose of preserving human life.
That act is fundamentally defensive.
That is not to say that we engage in half-measures. Once the Rubicon has been crossed, then we must act with a ruthlessness that is unmatched. The emotions of fear and rage are strikingly similar. One can cause the individual to freeze; the other can spur one on in righteous indignation.
Remember, the gun on your hip is not your first line of defense! It is your last line of resistance.
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