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See Something, Say Something.
Our society has become far more “connected” than at any time in human history. Our ability to post events we witness, explain to our “friends” the intimate moments in our life, and pontificate on social trends is unparalleled to any point in our past. Yet, the grand irony is that in our effort to stay current with those we follow on social media, we often literally miss the forest for the trees.
There is an ubiquitous video that makes the rounds on social media. A compilation of individuals paying so much attention to their phones that they either become embroiled in embarrassing disasters or come frighteningly close to meeting their own demise. People become so focused on the postings of others, they unwittingly become a “post” themselves.
Those of us who have CCWs are essentially prohibited from engaging in this type of behavior. By definition, we must be aware of our surroundings, and slavish devotion to our phones prevents this.
Putting down the phone and getting eyes up is, at times, a Herculean task. I will be the first to admit that I am a hypocrite when it comes to this. If Sandy had a dollar for each time she told me to put the phone away, she would be a very, very wealthy woman.
That said, Sandy is entirely correct. It stands to reason that we would never reach for our phone to check status updates in the midst of a gunfight. We would also never do that when we suspect an altercation was about to occur. Why then would we do it when an altercation “could” occur?
As CCW holders, we must place ourselves at a higher standard. We, as individuals, are not the only ones who benefit from this… society as a whole becomes safer.
As CCW holders, we are constantly training to be observers. We see things others miss. Oftentimes those things are entirely benign… yet, at times, they are potentially life-changing. Once they have been detected, our responsibility does not end. We now need to do something with that information.
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If you were in a bank and suddenly saw four men, roughly the same age, come into the bank, take up separate positions and begin scanning the crowd holding their jackets closed, you would probably decide it was best to immediately leave. That seems like an entirely prudent decision. Once outside, would you simply just drive away? Would you be comfortable knowing that you have potentially left all of those other patrons in the bank in harm’s way? Most of us would probably get a safe distance and call 911. If it turns out that the men who entered the bank were simply there to do a transaction, and had no criminal intent then no harm, no foul. If they were there to threaten the lives of the bank personnel and the patrons then, well… you just may have saved many lives by that simple phone call.
A phone call you would not have been able to make had you not been aware of their presence in the first place.
Beyond the local crimes, this also has national security implications as well.
When we see things, things that just don’t add up, we can either ignore them or report them.
To be sure, sometimes law enforcement drops the ball at this reporting stage. After the Parkland shooting it came to light that there were numerous reports to law enforcement about the shooter. Nothing of any substantive value took place. Greg Gutfeld, of Fox News, coined the phrase, “See Something, Say Something, Do Nothing.”
He has a point.
Regardless, denial of information to a law enforcement agency based on the premise that they will not act upon that information is just as asinine.
As CCW holders, we are often in a unique position to see things that, as a friend of mine in law enforcement says, “…make you get a pit in your stomach as you go to bed at 11 pm.”
Perhaps your “actionable intelligence” is nothing more than benign and eminently explainable, Constitutionally-protected activity. Perhaps it is something far more nefarious.
The activity in and of itself may be minimal; but, it might be part of a larger criminal enterprise, one that law enforcement has been monitoring for quite some time. It might also be the “tip” that leads to the unraveling of a conspiracy that could have put our troops, and even us at home, in danger.
I always tell you to train constantly, train consistently, and train with purpose. Your training is all encompassing and begins with situational awareness. When your training enhances a skill, and that skill uncovers something you would have otherwise let go unnoticed, you must act upon it.
“Posterity! you will never know how much it cost the present generation to preserve your freedom! I hope you will make a good use of it. If you do not, I shall repent in Heaven that I ever took half the pains to preserve it.”
On this the 242nd Anniversary of the recognized signing of the Declaration of Independence, I thought it only right and proper to muse upon the origins of the Framers’ thoughts and the sizable risks they took in articulating those thoughts.
More importantly, however, is our own individual responsibility made manifest from the inheritance we have received… a spectacularly fragile inheritance that was born in blood and protected by continual sacrifice from generation to generation.
What had started as grievance against the Crown, ultimately culminated in a severing of political ties between the largest empire on Earth and its upstart colonies. John Adams, Benjamin Franklin, Thomas Jefferson, even Adams’ more ardent cousin, Samuel Adams, did not begin this journey seeking independence from England. Quite the opposite, they rightly felt that the English Bill of Rights was not being applied logically to the colonies and the British citizens who resided there.
The English Bill of Rights, drafted in the 1600s, articulated fundamental principles that governed the relationship between Parliament and the people. To those residing in the colonies, many in Parliament felt that compensation for the costs of defending the colonists from the French and Indian Wars were more important then legalistic adherence to the English Bill of Rights.
When British troops were sent to Boston to be quartered amongst the population, essentially as an occupying law enforcement source, (Yes, Cosmo… I am thinking of you!) the people of Massachusetts became irate.
When it was ordered that the subjects of the King be disarmed, that was simply the final straw.
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The Declaration of Independence was by no means a “certain thing.” In the Continental Congress, the delegations from New York, Pennsylvania, and South Carolina proved resistant to moving forward with a formalized break from Great Britain. After all, they were fighting for the rights of Englishmen… not the formation of a new country. The idea of “country” was not really even in their lexicon. To Virginians, their “country” was Virginia itself. To New Yorkers, their “country” was New York. The colonies were collectively really nothing more that a collection of states. Arguably, as the historian Shelby Foote describes, the transformative process of becoming a single country did not take place until the conclusion of the Civil War in 1865. The language is telling. Up until then, people would describe actions of the United States in the plural…. “the United States are going to do something”. After the Civil War, there was an unconscious shift that took place…”The United States is going to do something.”
So what would have been the end result of General Washington losing at Yorktown? What would have happened had Franklin not endeared himself to the French Court and secured an alliance with France? What would have happened had Washington not employed the skills and talents of Baron Von Steuben and developed a professional Continental Army?
The Framers would have been hanged.
John Adams, in the quote referenced at the beginning of this blog, speaking directly to us is prescient. The Framers knew they were putting themselves at risk. They knew failure was death, and the chances of prevailing were extraordinarily small. They were staking their very lives on the prospect that they could defeat the strongest military power on the planet.
Subsequent to the Revolution, they saw continual problems, from funding the new government to, in some instances, governing the ungovernable.
Still they persevered. With each perseverance they sacrificed personally and professionally. These sacrifices were for a singular beneficiary… us.
Our generation, like every American generation that has come before us and all that will follow, are temporary custodians of the glorious experiment in popular government that our Framers paid so dearly to provide. We must be ever vigilant against the forces of tyranny that will always, by design, seek to nullify the achievements in freedom that our forebearers fought so dearly to preserve.
This Forth of July, this “Birthday of our Country,” please pause for a minute to reflect upon the awesome responsibility that you… you as an individual… have to protect freedom not just for us, but for our posterity. The Declaration… that document, inspired by Divine Providence, sets out the terms: “All men are created equal, and are endowed by their Creator with certain inalienable rights, among these are life, liberty and the pursuit of happiness.”
From the highest official, to the lowest among us, there is an equality and dignity of the individual. Government is established for the singular purpose of securing those rights.
You, dear reader, are the source of power for the government. It is upon you, as those who came before you, to shoulder the mantel of responsibility as well, to ensure that these rights are protected and nourished for future generations.
God bless you tonight as the festivities ring out across the country…. and God bless these United States of America.
Timbs v. Indiana
“You have a really nice business there… it would be really terrible if something were to happen to it.”
When the Mafia makes a statement like that it is scary.
When it comes from the government it is downright terrifying.
The Framers were also keenly aware of this.
The goal with the Framers was to establish a Constitutional framework that enshrined the concept of limited government, a government that was given specific enumerated powers and nothing more. Even within the debates of the Framers there was a tension to expand the powers of the federal government (See the arguments between Jefferson and Hamilton.). Regardless of those who sought a stronger centralized government, all understood that power is not a static concept.
The Framers understood that once limited power had been granted to a body, the impetus would be for the that body to constantly expand the scope of its control.
One of the interesting ways the Framers sought to place a check against governmental abuse of the individual was the Eighth Amendment.
The Amendment reads: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Clearly this is a right of the people (as opposed to a right of the State as articulated in the Tenth Amendment).
It is also a right that protects you from federal actions that may impose excessive bail, fines, or cruel and unusual punishments. State actions, notwithstanding their own individual Constitutions, are free to set high bail, fine you to the moon, and cruelly and unusually punish you.
The Fourteenth Amendment, ratified after the Civil War, incorporated “fundamental rights” directly into State Constitutions.
The funny thing is… the “excessive fines imposed” is a phrase that has never been directly incorporated.
As a result, State governments have become “for profit” industries, fining people (often poor people) as a way of raising revenue without legislatively passing taxes.
With the Supreme Court case of Timbs v. Indiana, slated to be heard next year, that will hopefully change.
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One of the biggest issues I have… and yes, gun owners, this is going to directly apply to us… is when the State uses fines as a means of establishing a social policy.
The State essentially makes the argument: We don’t like X. We don’t have the legislative ability, either Constitutionally or politically, to ban X. We want it to be as burdensome as possible to engage in X, so we will establish economic penalties associated with the performance of X.
So, who ends up taking the brunt of this? Those who have the least ability to pay. Essentially, they must avoid any potential of being drawn into X for the economic repercussions that could occur.
It also sets up an odd philosophical conundrum to those who would benefit from the imposition of those fines.
Say the “fine” for smoking in a no-smoking zone is $5000. (Excessive? Perhaps.) Let’s say the funds generated from this activity are earmarked for cancer research. If people avoid smoking, they are robbing the funding mechanism that pays for cancer research. Does this then mean that it is morally mandated that you should smoke in no-smoking zones as a means of generating cancer research funding?
Smoke ‘em if you got 'em! You need to do it!
For the children!
The Constitution sets up a framework for limited government with specifically enumerated powers. When government has a pecuniary interest in the collection of revenue that goes beyond the enumerated powers of the government, you have the recipe for tyranny. Hopefully, the Supremes will agree and incorporate the excessive fines clause of the Eighth Amendment.
If not… well, imagine what beautiful government programs we will be able to have without State fear of that pesky Bill of Rights.
“… and many of those gun laws have either an irrational basis to begin with or, as applied, are unconstitutional.”
“Those are just your opinions!”
“All you are doing, all you have been doing, is giving your opinions!”
The rabbi jumped in… “Okay, okay, the temperature in here is getting a little hot, and we need to cool it down. I know there are people in this room who disagree with some of the things being said, but we have to be respectful.”
“Thank you, rabbi, but I want to hear what the gentleman has to say; I’m not sure what I have said that would give him offense.”
“Fine! You want me to say it, I will say it! You have been doing nothing but spouting off your pro-gun opinions all night! I don’t want to hear them! Someone needs to call you out, and if no one else is going to do it, I will! You shouldn’t even be up there, I don’t want your OPINIONS!”
The rabbi jumped back in, “Let’s move onto the next question…”
This little exchange took place last Tuesday at a synagogue here in Orange County. I had been asked to participate in a “town hall” type of event where three of us would act as panelists to discuss the issue of gun violence. One of the participants was a Los Angeles City Attorney who evidently had a pre-existing relationship with the Moms Demand Action group that had a table by the doors leading into the event. The other was a probation officer (she actually has trained at Artemis), and was a survivor of the Las Vegas shooting.
Then there was little old me.
The demographics of the audience was interesting. About 50 people were in attendance and most of the attendees were in one of three “camps”: 30 to 45-year-olds who were decidedly anti-gun, but were interested in asking probative questions, and I suspect capable of being persuaded by logic. 50 to 70-year-olds who were decidedly pro Second Amendment, and then a small handful of aging ex-hippies who were completely antagonistic to firearms and prone to fits of hyperbolic hysteria when even the idea of firearm ownership was mentioned.
(As an aside, the synagogue is patrolled by armed security… go figure.)
Yes, there were occasional outbursts, the above-referenced one being the most egregious.
My initial thought was to subject this gentleman to a logical Socratic dialogue, a cross-examination of his emotive beliefs as it were… but I realized that to do so would probably make me come across as a bully.
Benjamin Franklin once famously chastised John Adams after Adams had insulted Rutledge on the Congressional floor. Franklin told Adams to never insult someone in public… always do it in private. When done in private, they might actually thank you for it… when done in public, they know you are serious.
It was exquisitely apparent that this gentleman was “serious.” From the look of embarrassment the other members of the congregation showed as he went on his emotional diatribe, the “seriousness” of his behavior did more to negate the value of his message than anything I could have additionally contributed.
One of the other emotional outbursts took place between two congregants. At the end of the program the rabbi decided that individuals should stand up and discuss their feelings. (Yes… this was a thing). The three of us on the stage, I guess, were just supposed to sit there and listen without responding. I’m still not exactly sure what the point of this was… but okay.
One of the members of the crowd, a woman I suspect who was in her early sixties, stood and agreed with a point that I had made earlier. Violence is something that has to do with the worsening of our culture. It’s not about the guns. She explained that when she was in high school she was part of the shooting team. Everyday they brought their guns to school and there was never any danger of a shooting. The very idea that students would use their guns against their classmates was as foreign as someone using a vehicle to drive over students in the school parking lot.
She was interrupted mid-sentence by one of the elder ex-hippies:
“Why did you bring your guns to school?!”
“I was in a shooting club. We all did.”
“You brought your guns to school?! Oh, my God! Oh, my God!”
The ex-hippie began to feign hyperventilation and had to be calmed down by one of her comrades.
The woman looked on at her fellow congregant with a mixture of annoyance and disgust.
Dialogue only takes place when both sides are rational.
To believe that “minds were changed” would be the height of folly.
There were those in attendance who were silent throughout the proceedings. Perhaps they came to the event with a preexisting bias. Perhaps they were a pure tabula rasa. Either way, these individuals were shown the histrionics of the antis… maybe, just maybe, our arguments became a little more persuasive when colored by the outbursts of the opposition.
This one is for you, Pops…
With the election behind us… (Congratulations, Sheriff-Elect Don Barnes, and keep up the fight in November, Congressman Rohrabacher!)… I seriously thought about doing an election analysis for this week’s blog. Being a political junky, Tuesday night elections are the equivalent of the Super Bowl for me. That said, one of the things that is spectacularly irritating is the various analyses of elections that don’t offer any great insight, other than to rehash the actual election. As I assume all of you share the same dislikes I do, I will spare you that annoyance.
Instead, I want to focus on another upcoming “day”… Father’s Day.
Specifically, I want to focus on the relationship that I have with my own father, and the reflections I have in light of being a father myself.
Father’s Day, like Mother’s Day, has become an exercise in Hallmark cards, brunches and gift-giving. While we do well to honor those who are fathers, we frankly spend little time in retrospect as to whom these men actually are, primarily a result of having lived our lives with them. We know these people, we understand their complexities and, having suffered through numerous disputes with them over the years, understand their own fallibility.
There comes a point, though, as adults when a unique realization occurs.
Each of us has suffered, or watched others suffer through extreme times of emotional distress. As children, we look to our mothers and fathers as guides to help us understand how to navigate these dark times. We remember these instances, for oftentimes they are the defining points which have led us to who we are as adults today. We also remember the guidance our parents gave us… for good or ill, for like the event itself, the response to the event is often revealing.
This reflection often happens when we realize we have transcended the age that our parents were when our “childhood event” occurred. When we have the enlightenment of experience to realize our parents were mere children themselves when they were suddenly thrust into this situation, we are often humbled by the sheer intellect of their actions so many years ago, or warmed by the compassionate knowledge they did “the best they could with what they had.”
When I was six years old, our family suffered a catastrophic event. My younger brother, who was only three at the time, succumbed to an acute infection of meningitis. My young parents were utterly devastated. I was massively affected by the loss as well, but on a different level. I was suddenly forced to learn the underlying realities of mortality, as well as the sudden knowledge that my dear brother was no longer to be a part of my life.
My parents, on the other hand, two people who were in their early thirties, suddenly had their lives, as they knew them, terminated.
Back then psychological counseling for grief was nonexistent. Really the only support system that existed at all was clergy, and our relationship with the synagogue became stressed.
I distinctly remember a few weeks after Craig’s death, my father, who was desperately trying to keep me from sinking into depression myself, sat with me to watch a cartoon version of the novel, Charlotte's Web, which was showing on TV.
There is a point where Charlotte, the spider, dies.
I looked back at my father who was sitting in his chair and saw a single tear streaking down his face as he sat stoically with me. When he realized I was watching him, he smiled and asked me how I was doing. The juxtaposition of him trying to be “cheerful” with the wet streak of a tear on his face, taught me more about dignity and compassion than anything I have ever read then or since.
A few months later, my parents noticed I was struggling coming to terms with the loss of my brother. I had, for one reason or another, attached myself to a stuffed Winnie the Pooh doll.
As an eight-year-old boy there was absolutely no justifiable reason I should be so needy of this doll to be in bed with me when I went to sleep. It gave me a measure of comfort, though, and my parents felt little need to wean me from it.
In an effort to get on with the business of life, my two grief-stricken parents decided the three of us should take a trip to the East Coast. I remember little of that trip, except for the fact that we went to Washington, Philadelphia and New York. It was in New York that a secondary tragedy occurred.
Evidently, when I was packing up my stuff at the hotel in Philadelphia, I neglected to secure my coveted Winnie the Pooh doll. When we reached New York and I was getting ready to go to bed on the rollaway cot in my parents’ hotel room, I suddenly realized Winnie was not there.
I was completely devastated.
My father wanted to protect me, to ease my pain. There was little he could do, though. As I sat there bawling, he turned to my mother and said, “I’ll be right back.”
A few minutes later he returned to the room with a paper gift bag from the lobby gift store. He handed me the bag and took a step back with a nervous and hopeful look.
I opened the bag and pulled out two tiny stuffed animals…. a walrus and a lion.
I held each in my hand and looked at my dad and said, “What am I supposed to do with these?”
Instantly, I started crying again.
I look back on that event and realize how much pain I must have caused my father at that time. He was desperately looking for something… anything… that could mollify my pain, and I completely missed that at the time. I was so psychologically damaged that selfishness and lack of empathy dictated my emotional responses.
I’ve thought about that day many times over the years. Each time, I well up with pride that the man who raised me had the capacity to push through his own grief to do what he thought would be best for me all the time. What still gets me, is that he had the presence of mind to do this when he was almost 15 years younger than I am right now.
I’ve told this story to Sandy and my kids over the years.
This year we knew that I was going to be alone on Father’s Day. Carolyn is living in Sydney, Australia, and Chaney won coveted spots at West Point and Annapolis Summer Seminars. Sandy took Chaney to the East Coast last week, and they won’t be back until after Father’s Day has passed.
Before they left, Carolyn “FaceTimed” us, and with all of us in the same room, Chaney gave me their gift to me.
I opened the 5.11 bag (Nice touch girls!).
Inside was a brand new Winnie the Pooh doll.
The pride that I felt at that moment in my girls, and my own father, was incalculable.
To all of you who are fathers, to all of you who have fathers… we are men…which means, as my wife tells me, we are deeply flawed.
But, we do the best we can with what we have.
Be secure with the knowledge that it is never the grand things that will be remembered. It is the little things… like running down to a gift shop at nine o’clock at night to get a struggling child a walrus and a lion. Those are the things that will define you not only as a man… but as a father.
While this should not be surprising to anyone… Liberty was dealt another blow this last week in California.
Danny Villanueva and some of his cohorts decided to sue California Attorney General Xavier Becerra and some of his buddies about the whole DOJ “assault weapons” registration scheme. Specifically, they thought that the method DOJ used in getting the rules approved through the Office of Administrative Law was problematic (read: illegal), and, thus, the registration process should be scrapped entirely. Their main issue was the DOJ used a method called “file and print,” which bypassed the typical “file and comment” statutory requirement. Basically, DOJ knew that its proposed regulations went beyond the scope of the legislation, and it did not want to be called out on it. By using file and print, no one would have the opportunity to comment on the proposed rules and point out the obvious problems with them. Metaphorically, DOJ wanted to shove these rules down the throat of the body politic.
So Mr. Villanueva sued, and Fresno County Superior Court Judge Mark Snauffer said… (of course I am paraphrasing)… ”Oh, come on, don’t sweat the small stuff; DOJ rules stand.”
The decision is chock-full of quotes from other decisions that would make any civil libertarian cringe with disgust… but my favorite gem is this:
“…the legislature was not constitutionally compelled to throw up its hands just because a perfectly comprehensive regulatory shame was not politically achievable. The problems of government are practical ones and may justify, if they do not require, rough accommodations - illogical, it may be and unscientific.” (Kaser, supra, 23 Cal.4th at p. 487”
What the f#$k?!?
Let’s philosophically expand on this, shall we?
So, let’s review how we got here in the first place…
The legislature passed SB 880 that said, statutorily, the bullet button on an AR-15, which for years had been considered an adequate method of making the magazine “fixed,” and, thereby, removing the weapon from the “assault weapons” category, would no longer suffice. (Basically, if the weapon after January 1st had a bullet button on it, it should be recognized as a detachable magazine, and… if one or more “evil features” are present on the gun, voila… you have an “assault weapon.”)
So what is a law-abiding citizen to do?
Well, one of the options is to take advantage of a statutory time frame where lowly subjects (sorry, citizens) are allowed to register their weapons as “assault weapons.”
Cool… So let’s think about this for a minute. If the weapon is registered as an “assault weapon”… and the whole purpose of the bullet button was to make it not an “assault weapon,” then it would stand to reason that once statutorily recognized as an “assault weapon” there should be no need for a bullet button at all.
In fact, many of us recognized this and thought, as we approached January 1, that registration made perfect sense.
But, DOJ in its promulgated rules (yeah… the ones that they forced down our throats without a comment period) essentially created a new class of “assault weapons.” We call them “bullet button assault weapons,” since once registered they MUST retain the bullet button post-registration.
Ok… so now onto the philosophical part:
You need to understand that laws, all laws… no matter how seemingly benign or necessary…are infringements on personal freedom. Sometimes they are absolutely necessary for a society to be at peace… but, make no mistake, they are freedom-limiting devices. Our Framers completely understood this, as did Cicero and Aristotle. Thus, a democracy is devised to make the development of laws a difficult process.
You see, once a law has been enacted, implicit in that law is the threat of violence.
We craft a statute and, for the statute to be enforced, people with arms who have been sanctioned by the State, are mandated to use violence, or the threat of violence, to ensure the law is followed. This coercive power of the State was of extreme concern to our Framers, so they built in layers upon layers of protections for citizens. Most of you are aware from high school civics that we have a checks and balances system to prevent governmental tyranny. But the prevention against tyranny actually starts at the rule-making process itself.
The legislature makes law.
Why the legislature of all places? What do legislators know about a particular subject? Well, many times, not a whole hell of a lot. What they do have is the Sword of Damocles hanging over their heads every two years. Yep, if they start behaving badly their constituents get to fire them. So, to inoculate them from those pesky constituents, they often times demand a “watering down” of legislation to make it more amenable to specific constituents. This is “sausage making,” and it is specifically intended to be difficult to get legislation passed.
Again, the Framers understood that ALL laws limit freedom, so the only way to truly strike a balance between the enumerated powers of the government and the rights of the citizens, is to force law making to be confined to the crucible of the legislature.
Unfortunately, in California we have developed the Office of Administrative Law.
Basically, we allow the legislature to make laws, and then executive agencies create executive rules (which have the force of law) that create a greater level of specificity in the actual application of the statutory law.
Here is the problem though:
When the legislature does not have the political ability to generate a law, it comes up with the “best it can get,” and rely on the executive agency (in this case the DOJ) to craft more stringent regulations than the legislature could politically achieve.
This is completely antithetical to the guiding principles of our Framers.
It also takes a major chunk out of general respect for the law. Tyranny is something that constantly needs to be kept at bay. Judges cannot exclusively act as technicians… if that were the case, they could easily be replaced with computers. Judges, like the lawyers who present before them, must stand as defenders of the Constitution and the philosophical principles that it codifies.
Sadly, this is not always the case.
“So, I get stopped by a law enforcement officer while I am transporting my long-range rifle to the range… Do I need to tell her that I have it in my trunk?”
“A law enforcement officer stopped me, and asked me if I had any weapons; I told him no…. but I now realize that I had my folding knife in my pocket… Should I have told him yes?”
“I don’t want to register my AR with the State because I don’t want to give it probable cause to search my home.”
“I do want to register my AR with the State because I want to deny the State probable cause to search my home.”
“If the State wants to come into my home and search it, who cares? It’s not like I have anything to hide.”
I get these questions, or hear these statements, weekly. Many CCW holders are passionate about being legally compliant, not because they are trying to build arguments or thwart prosecutions… it’s because they are legitimately good people who want to follow the law.
The intersection between the law and the private citizen involves certain Constitutional rights that need to be protected. More importantly, the contact between law enforcement and the private citizen is not an event that takes place in a vacuum between two emotionally-devoid robots. Implicit in that contact is the belief that the law enforcement officer is a professional, rational actor, and that the citizen is aware and educated in how to interact with an officer, and that the encounter is governed by a Constitutionally-mandated constraint on when, where, and under what circumstances the encounter can take place.
Unfortunately (and I really do mean unfortunately), we have adopted an adversarial approach to the trying of fact, as well as the ministering of justice.
What I mean by this: A defendant in a criminal case can challenge the underlying facts of the case. The State claims A + B = C. The defendant claims A + B = D. It is up to a jury to decide which of the above statements is “correct.” Once that determination is made, the adjudicated “fact” can be applied to the governing law. It is up to the State to make its case first. If defendants believe they failed to prove that A + B = C, they are are under no obligation to challenge it at all. Since the State failed to prove the proposition, the prosecution automatically fails. Alternatively, the defendant could demur, essentially saying “yeah… so what?” We are all agreed that A + B = C… The thing, though, is that there is nothing illegal about “C”… so why are we here?
Since this is an adversarial process, the fight ends up not being about the formula at issue… rather, it is about admitting and excluding evidence that tends to prove or disprove the State's case.
The first step in this adversarial process is that initial contact with law enforcement.
Typically, but not always, the State needs to have some level of probable cause before it can initiate a search of a citizen’s property. This is an evidentiary event. The purpose of a search is to gather evidence that can be used to support the contention that the individual committed an illegal act. Many times the purpose of the search is oriented towards a singular suspected crime. During the course of the search, however, evidence is discovered that may exonerate the individual of the suspected crime, but implicates the individual in an entirely different criminal act. Assuming that the evidence was obtained through a “reasonable” application of the initial sanctioned search, it is admissible at trial.
The most common application of this is something called the “plain view doctrine.” If the court issued a search warrant for a person’s home under the probable cause that illegal firearms were being sold, and during a search for guns and transaction records, the officers stumbled upon some unrelated, but unhidden, criminal activity they don’t have to ignore it. They can seize it and amend the complaint to include the new charges.
In the movies, this is usually under the scope of the police coming in to search under a warrant for narcotics and, suddenly, when they are in the person’s home, they find 20 dead bodies.
In the real world we have Lawn Darts.
Most law-abiding citizens are not overly thrilled about the idea of the State coming into their homes or searching their personal effects. Yet, the common refrain I hear is, “Well, I have nothing to hide anyhow.”
Perhaps… but, perhaps not.
Cosmo and I use the term “Lawn Darts” as a generic metaphor.
Growing up, lawn darts were a popular backyard game, like horseshoes. People would buy lawn dart sets at Kmart and leave the box in the garage. For those of you who have no idea what I am talking about… rejoice in your youth… then Google image them. These things were fun, aerodynamic, and, to be completely honest, spectacularly dangerous. They could easily be launched a hundred yards and came down with such force they easily could (and did) kill people.
They were eventually outlawed, and the possession of lawn darts became a felony.
Unfortunately, there are many people out there who legally bought them, and kept them without ever getting the memo that they became illegal.
What about the possession of expired drugs that the suspect still maintains or has possession of from a roommate who no longer lives at the address? Yeah… that is a crime too… a federal one.
There are a lot of people out there who are “law-abiding” who, when put to deep scrutiny, are inadvertently committing felonies.
Yet, these same people… me included… have a deep love for our law enforcement officers. The last thing we would ever want is to become distrustful or antagonistic to them. Quite the opposite, we want to assist them in whatever manner we can.
By understanding our Constitutional rights, and also understanding the potential liability that exists in unfettered statements and access, we can protect ourselves both physically as well as legally.
Rich, one of our Artemis instructors, who in the real world works as a Lieutenant for the Sheriff’s Department, has developed a class that I encourage all of you to take, “What to Do When Stopped by Law Enforcement”. This is both a practical, as well as legal, course (I will be there to talk about legal culpability implications). I think that anyone who legally carries a gun, or is interested in understanding the Constitutional protections and philosophical underpinnings of those protections, should take this course.
As we draw closer to the State-mandated “assault weapon” registration deadline, I have been fielding numerous calls regarding whether clients should register at all, or avail themselves of the three other alternatives: 1) Ship the firearm to the United States, 2) Install a fixed-magazine rig, or 3) Render the firearm featureless.
As many of you know, I was at first enthusiastic about the idea of registration… that is, until the DOJ promulgated rules that far exceeded the state legislature, rules that, I believe, will ultimately be rendered volitive of separation of powers. The legislature mandated that semi-automatic rifles, with certain cosmetic features, had to either have those features removed, or be registered as assault weapons. Beyond that, the legislature was silent. California DOJ unilaterally decided to go beyond the scope of the elected legislature and enact a stricter regulation than the legislature was able to achieve throughout the legislative process. DOJ literally created a sub-category of firearms called, “bullet button assault weapons.” These weapons come into existence when owners choose to avail themselves of registration. Rather then being designated as “assault weapons” as the legislature intended, they must be kept in the same configuration… utilizing a bullet button for a magazine release. Notwithstanding the fact that this makes, literally, no logical sense… it places the California DOJ in the untenable position of acting in an illegal fashion.
My position has been to reject this executive branch overreach, and essentially tell DOJ to screw itself by NOT registering “assault weapons.” Still, there were individuals who wanted to pursue the legal process. I have consistently advised them to either use the Law Offices of Lieberman & Taormina (or any other licensed attorney for that matter) to assist with the registration process… but, under NO CIRCUMSTANCES ATTEMPT TO REGISTER THEMSELVES.
What follows is a cautionary tale:
Last week my friend, Dave, sent me a link about a California subject named Jeffrey Scott Kirschenmann. Mr. Kirschenmann did not use the services of an attorney, and is now being arraigned for over ten felony weapons charges. I am upset that Mr. Kirschenmann finds himself in this position, and I suspect negligence (perhaps even arrogance?) might be at the heart of his legal problems. The intensity of my anger is directed at the State, however, for allowing a situation like this to manifest in the first place.
To put this in perspective, imagine the following scenario:
The State of California has enacted a law which mandates that all current gas go-carts be secondarily registered with the State. You have other options, of course; you can modify the gas go-cart into an electric one, or you can just remove the engine all together and have a horse-drawn carriage.
Before registering, you need to prove where and when you purchased the go-cart. If you don’t know, or failed to keep the original receipt, you will be prohibited from registering and, thus, must avail yourself of the two other options. There was an actual lawsuit about this wherein the plaintiffs argued they were under no legal obligation to keep the original receipts, and now should not be punished for the failure to keep their records. The judge responded to their pleas by essentially saying, “Yeah… I don’t care. I don’t like go-carts in the first place. No one ‘needs’ a go-cart.. and, besides, they can still elect to go with the horse-drawn carriage."
Oh, and here is the kicker… If you do attempt to register the go-cart, and it turns out that there is a 227A back-space carburetor, which was legal to purchase until last year but is now illegal, well, then, you not only implicate yourself in a criminal act violating your Fifth Amendment rights, but you have also essentially given probable cause to allow for a search warrant of your house, implicating your Fourth Amendment rights. Since the attempt at registration was done in your home, on your computer, with your camera taking pictures of the go-cart to send to Sacramento, your Third Amendment rights have also come into play. (That last one was for Cosmo… fight on, Major!!!)
If this seems like a ridiculous reason to prosecute someone, just look at Mr. Kirshenmann’s case. Mr. Kirshenmann is a very successful farmer. He owns property in California, as well as other western states. He legally purchased suppressors in Idaho and brought them back into California. These suppressors are used for varmint control on his properties, and it is highly likely that he did not realize they were not legal in California. He also was in possession of short-barreled rifles… again, perfectly legal in most other states, and perfectly suited for varmint eradication… but, again, illegal in California.
Why do I suspect that he was clueless that he was in possession of illegal items?
He tried to register them as “assault weapons” pursuant to SB 880. He, literally, was trying to comply with a confusing and illogical law and, in the process, sent evidence to CA DOJ that he was committing a crime.
Now DOJ could have easily called him and “instructed” him to move the weapons out of state. It could have even visited him and confiscated the suppressors… and the weapons. But it would be so much more fun to prosecute Mr. Kirshenmann, make him a felon, make it impossible to possess weapons anywhere in the United States for the rest of his life… and, what the hell, put him in jail for a while to boot!
DOJ and the DA decided they needed to make him an example.
The irony is those who were thinking maybe registration would be the way to go, have seen this story and now reasonably are gravitating to featureless or fixed magazine.
Way to go DOJ! Keep reaching for that rainbow.
Rupp v. Becerra
“We needed to destroy the town in order to save it.”
This singular statement made during the Vietnam Conflict did more to alter the course of western civilization than any other. For most of our national history we had a healthy distrust of government, but a general acquiescence to the idea that laws developed by the government and subject to judicial review were facially valid.
That one line, though, “jumped the shark.”
Now people began viewing the military application force in Vietnam as suspect, and with it, the politicians that advocated continued military action. That began a steamrolling effect, culminating in an antagonism to entrenched self-serving political elite, and in many respects, the very political system itself.
Unfortunately, the judiciary has played directly into this. Often times there have been legal cases in which a determined outcome is more important to the court than the legal rationale associated with achieving that outcome. We saw this in Kolbe, where the Fourth Circuit essentially said that the AR-15 is not in “common use,” and thus, not “deserving” of Second Amendment protections.
We have now seen this manifest again in Rupp v. Becerra. In Rupp, Judge Stanton was asked to decide if the registration process for the California Assault Weapons Control Act violated the plaintiffs’ Second Amendment rights, as well as their due process rights, specifically, as it related to the act of registering an “assault weapon.” One of the requirements before registering is that applicants must state (under penalty of perjury) the name, address, and date of acquisition of their firearm in their application to DOJ for registration of their rifle. Many individuals legally own their weapons, but failed to retain their original DROS paperwork, and thus, could not complete the form without guessing as to the date or location of purchase.
Not wanting to overturn a gun control measure that her fellow anti-gun friends in Sacramento advocated, Judge Stanton essentially said, “tough,” and, ironically, set the stage for a method of compliance that is completely at odds with what the legislature intended as it relates to their stated objective. The funny thing about it… (if anything about this could be construed as “funny”)… is that Judge Stanton more likely than not has absolutely no idea that she just encouraged people to take off their “bullet buttons,” and thus enjoy the ability to quickly and more efficiently reload their weapons.
Great job, Judge!
In her decision, Judge Stanton went into great detail to explain that the plaintiffs were not in a position to sue for relief since, essentially, none of them had actually committed perjury yet and attempted to apply.
If that sounds like a ludicrous standard that needs to be met for ripeness, you are correct.
The real interesting part of the analysis, though, is her application of the Second Amendment challenge.
She notes that in Heller, the Second Amendment is to be construed as a core fundamental right.
She then states, “Assuming, without deciding, that individual ownership of semi-automatic weapons implicates a core Second Amendment right, the Court must determine the appropriate level of scrutiny. Every circuit to have encountered statewide bans on semi-automatic weapons designated as assault weapons, has applied intermediate scrutiny.”
Ok… so what is “intermediate scrutiny”?
Well… in her decision she articulates it:
“(1) the government’s stated objective must be significant, substantial, or important; and (2) there must be a ‘reasonable fit’ between the challenged regulation and the asserted objective.” Silvester, 843 F.3d at 821-22 (quoting Chovan, 735 F.3d at 1139). The state need not “show that [the regulation] is the least restrictive means of achieving its interest.” Fyock, 779 F.3d at 1000 (citation omitted). Rather, the state is “required to show only that [the regulation] promotes a ‘substantial government interest that would be achieved less effectively absent the regulation.’”
She then goes on to say that the registration furthers a significant government interest, and that there is, in fact, a reasonable fit between the challenged regulation and the asserted objective.
So… what was the objective?
Simple…. the State does not like detachable magazines.
That was the whole point!
The bullet button was a device that stuck in the craw of the legislature. Legislators did not like the fact that industry had developed a “work around” of the idea of a detachable magazine. SB 880 was written to make the bullet button ineffectual in establishing the rifle as a fixed-magazine rifle. Rather than implicate a “takings” issue, they essentially said that a weapon with a detachable magazine can be registered as an “assault rifle” during a statutorily-defined time period. Alternatively, the owner can affix the magazine in place with a device that requires the action be “cracked” prior to removal of the magazine.
What they forgot was that the definition of an “assault weapon” is a centerfire rifle, with a detachable magazine AND one or more “evil features” (a pistol grip, telescoping stock, etc.).
Many individuals have elected to go featureless… meaning they have removed those “one or more evil features,” effectively opting out of the legislative scheme.
This also means… and here is the kicker… they are allowed to have traditional magazine releases on these rifles!
So, Judge Stanton… by upholding the registration scheme, you have effectively driven thousands of law-abiding gun owners to alter their weapons into featureless weapons and, thus, take advantage of traditional magazine releases.
The exact opposite of what the legislature intended.
Not what you had hoped for, Judge… and frankly, surprising that the DOJ did not realize this inevitable result itself… but there you go.
Well done, your honor.
Typically I go to SHOT Show every year, and Sandy gets to go to the NRA Convention. This year was a little different. It was decided about a month ago that Cosmo, my law partner, and I would go to the convention primarily to take part in the day-long legal seminar that the NRA puts on every year. Sandy, being the rational person that she is, suggested that it might be more efficient for Cosmo and me to go alone this year and spend our time doing lawyerly-like stuff without her worrying about the two of us getting lost or getting into trouble.
So, with cigars packed in our suitcases, Cosmo and I headed out to Texas for what would amount to a day-long continuing education seminar for lawyers, and a brief opportunity to wander the show floor before heading home.
The legal seminar was put on by the NRA’s chief legal counsel, and opened up with a “State of the Second” lecture by famed law professor Michael O’Shea. Those who have read the original Peruta decision (a spectacular treatise authored by Justice O’Scannlain) basically read a chunk of the work of Professor O’Shea.
There was nothing particularly “new” in his assessment, but he did offer some interesting ways of thinking about the jurisprudence of the Second Amendment that, candidly, had never crossed my mind. I am still digesting his law review article… and I can assure you that I will be bringing more of his brilliant legal thoughts to bear on my own analysis of Second Amendment issues.
Next was Cosmo’s favorite, Gerald Goldstein. Mr. Goldstein is one of the partners of Goldstein, Goldstein, Hilley & Orr, and, like Cosmo, is a criminal defense attorney. He is a very funny and articulate attorney and, though he self describes as an “old, Jewish Texas hippie,” he is a fierce protector of the Constitution, and is, interestingly enough, both fascinated and deeply impressed by the Supreme Court’s newest Justice, Justice Gorsech. His musings on the Fourth Amendment were both illuminating and instructive.
These two were followed by several other lawyers and one appellate court judge. We started promptly at 8:00 am, and finished right at 5:30 pm. One highlight was the opportunity to meet with the attorney representing the young plaintiff in the Michigan Dick’s Sporting Goods lawsuit, alleging age discrimination in preventing the plaintiff, who is 19, from purchasing a rifle.
After an excellent dinner, some whiskey and cigars, and what seemed like an all too brief night’s sleep, it was off to the actual convention to see “some stuff."
For those of you who have read my post, “SHOT Show”…. you pretty much are up to speed on the NRA Convention. The moment I walked onto the show floor I felt as though I was in Vegas…. the same vendors, using the same booths, showing the same stuff that was previewed at SHOT this last January. The only major difference was the option to actually buy stuff at the booths.
Cosmo finally got to meet Colin Noir, and take a picture with him. (I am sure that Mr. Noir was as excited as Cosmo was).
The highlight, though, for both of us was meeting with Sheriff Jim Wilson.
For those of you who read a lot of gun porn, especially vintage gun porn, you have undoubtedly read Wilson’s stuff.
I could have honestly spent hours with Jim just listening to him. Those of you who know my proclivity for talking, realize what a statement this is.
Jim is an anachronistic character… a truly gifted writer who evokes the stylistic flourishes of Robert Ruark, a singer with a baritone voice, who is both rich and accessible, a law man… and, most of all, a cowboy.
Sheriff Jim spent most of his life in a small, rural county in Texas, ultimately becoming the sheriff of that county.
Sandy met Jim at Gunsite a couple of months ago, and the two became instant friends. She called me after she had met him; she described Jim, and mentioned that he was a writer.
That was when I realized she was talking about Jim Wilson.
She told Jim that I had read just about everything he had written, and I was jealous that she had the opportunity to meet him.
His response was pure Jim Wilson. “Gosh, Mrs. Lieberman, you tell your husband that I am honored and touched that he appreciates my writing… but I am dubious about his taste.”
When you think of the stereotypical honored cowboy, the quiet man who lives by a code of honor, you are, in reality, thinking of Jim Wilson.
When there are no lady folk around, Jim also has no problem being a little freer with his language.
We were talking about Colonel Jeff Cooper. Jim and Jeff Cooper were close friends. He said that Cooper never, ever used swear words. Cooper, who was a Marine, was also a Stanford graduate. Jim said that Cooper once told him that he refused to use swear words because he had paid a lot for an education, and he did not need to use curse words to express himself.
Jim kind of smiled to himself and said, “That guy was f#@ing amazing.”
So, all in all, the show and the seminar were outstanding…. but as always, it is good to be home!
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