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Philip Brailsford (officer acquitted)
Daniel Shaver (suspect)
Last week we discussed Kate Steinly. One area that got specific attention from the blog was the decision by the judge to not allow the jury to hear about Zarate’s immigration status. This was based on a belief that the evidence was more prejudicial than probative. (Remember, the prosecution is presenting a theory. That theory, if accepted as true, must show that the defendant is guilty of a criminal offense. IF a jury is in a state of equipoise on any specific fact, they MUST err to the benefit of the defendant. Evidence that does little or nothing to prove a fact, but rather simply shows the defendant to be a piece of crap will not… nor should not… be allowed into trail.)
Not all of you agreed with that assessment, or were willing to forego the legal prohibition to achieve the greater good of letting the jury know that the defendant should not have been here in the first place. (However, as I said last week… I’m not sure the defendant’s immigration status, were it known to the jury, would have been prejudicial at all… quite the contrary I’m afraid.)
Well, the universe gave us another go at it this last week… and true to the Divine Comedy, the god’s have seen fit to let us analyze essentially the same evidentiary rule, this time resulting in the acquittal of a police officer.
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On January 18, 2016 Daniel Shaver was on a business trip. He was an exterminator that used a high powered air rifle to mitigate bird infestations in warehouses. By the end of the evening he would be shot and killed by Police Officer Philip Brailsford.
The shooting caused instant outrage among those that make their livings engaging in instant outrage. Daniel was unarmed at the time of the shooting. Worse… he was unarmed on his hands and knees and clearly intoxicated. He had no prior criminal record. Officer Brailsford, on the other hand, had… pause for dramatic effect… a personalized dust cover on the AR-15 he used to shoot Daniel. Worse… his dust cover had an expletive on it, the quote “Your F—ked”.
Armchair lawyers ran to their cabinets, grabbed their port and their smoking jackets and quickly fired up their lap tops to launch into full-scale diatribes against the police. Those that sit squarely on our side of the political aisle began their, “I told you so,” lecturing.
“Put that crap on your gun, and it will be used against you in court!”
“You would never see me putting anything like that on my weapon… that is a recipe for disaster!”
“Like I have said a thousand times before… personalized stuff on your gun is like begging a jury to find you guilty!”
It was never admitted into evidence.
The jury saw the evidence. The body cam video was presented, where the officer is heard repeatedly warning the suspect to keep his hands up or he will be shot. He drops his hands, and is then warned, in no uncertain terms, to raise them again. He inexplicably reaches back towards his right side waist, and is instantly shot multiple times. The jury found the officer’s actions reasonable, taken in the totality of the evidence that was provided to them.
But what about the dust cover?!?
Surely the dust cover shows that the cop was a jerk!
Yes, it does show that the cop had done a poor job of community relations. His employment history would further suggest he was not the “finest” of Tucson’s finest. (Prior to his acquittal he was terminated for unrelated misconduct).
But here is the thing… the cops personality was not on trial, his actions were. The question at bar was quite simple: Were the officer’s actions reasonable under the circumstances? Understand, the deep subconscious motivations were never a part of the jury's instructions. As such, the inscription of the dust cover, if provided to the jury, would have proved to be more prejudicial than probative as to the reasonableness of his actions.
Many CCW holders have been remarkably hesitant to “personalize” their guns, or for that matter to proudly wear their leather holsters inscribed with the patriotic quotes or images of the 2A community (Concealed holsters of course!).
“I would, like to put this Punisher skull on the back of my Glock… but I am afraid it will be used against me.”
“If I put a Molon Labe image on my dust cover, or my magazine, well it might go against me at trial.”
Sigh… Has it ever occurred to those of us that cary guns that the mere fact that we carry guns could be used against us at trial?!
You will not be judged on your accouterment, nor your image de guerre. You will be judged on your actions… and whether those actions at the moment were, in a single word, “reasonable”.
Last week we were all forced to watch a tragic miscarriage of justice.
Worse… we saw what might be the future of the politics of victimization yielding judicial results that are rooted in the grievances of groups, rather than the actions of individuals.
On July 1, 2015 Kathryn Steinle was walking with her father on Pier 14 in the Embarcadero in San Francisco. At that time a criminal, with multiple felony convictions for possession and manufacturer of narcotics, was “playing with a gun” he claims he found in a towel under a park bench near where Kate Steinle and her father were walking. Regardless of how he came into possession of the Sig Sauer P239 chambered in .40 S&W, we do know that it had been stolen from the vehicle of a park ranger two weeks earlier.
The suspect, in addition to being a felon, was also an illegal alien that had been deported multiple times back to Mexico. His most recent arrest should have resulted in an automatic deportation… but, instead, he was released into San Francisco to take advantage of their “Sanctuary City policy”. Essentially the City by the Bay had, and continues, to take the position that they will not aid nor assist federal law enforcement when it comes to the deportation of illegal aliens (Excuse me… undocumented economic refugees).
The suspect initially claimed that he had decided to point the gun at a sea lion (Seems like a reasonable course of action in the middle of the day in downtown San Francisco). He never admitted to stealing the firearm, and there were no facts to suggest that he did not in fact simply “find” it beneath his bench. (While this fact pattern strains credulity the defendant is given the benefit of reasonable doubt when it comes to the initial crime of vehicular theft. Since no facts were presented by the prosecution to suggest that he did in fact steal the gun… we must assume that he was innocent of that crime.)
The prosecution did claim that the defendant brought the gun with him to the pier… but whether he brought it or found it does not seem particularly dispositive as to criminal culpability regarding the events to follow.
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Regardless of the events leading up to the fateful moment, at some point the defendant was holding the firearm and possibly aiming it at a sea lion. The gun then went off. According to the prosecution this was a deliberate act by the defendant. According to the defendant it just… you know… sort of happened. Regardless, the round that left the muzzle ricocheted off the pavement and struck Kate Steinle in the torso. Two hours later she was pronounced dead.
The defendant threw the weapon into the bay (where it was subsequently recovered). About an hour later he was arrested.
Judge James Feng prohibited the jurors from hearing evidence as to the defendants immigration status. In this, I think, he was correct. The California rules of evidence prohibit the inclusion of evidence that is highly prejudicial that has no direct bearing of the case at bar. (Evidence code § 352 “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice of confusing issues, or of misleading the jury).
A jury is assembled to adjudicate the case at bar, not to punish for prior bad acts nor to set public policy through the vehicle of a criminal trial. They have the very limited authority to act as a trier of fact to determine exactly what actions actually occurred. The defendant’s status as an illegal alien is disgusting, especially in light of the actions of San Francisco… but in no way does his alien status make it greater or less likely that the actions occurred in the manner described by the prosecution.
The judge also allowed the jury to hear the rules relating to the law of involuntary manslaughter. California Penal Code §192 (a) describes manslaughter as the unlawful killing of a human being without malice. § (b) further clarifies involuntary manslaughter by stating: In the commission of an unlawful act, not amounting to a felony, or in the commission of a lawful act act which might produce death, in an unlawful manner, or without due caution and circumspection. § (e) further states: ”Gross negligence,” as used in this section, does not prohibit or preclude a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) 30 Cal.3d 290.
Yeah, I know… even in the light most favorable to the defendant, it looks like an involuntary manslaughter charge should have been applied by the jury. Instead the jury acquitted him of all charges of unlawful killing, and only charged the defendant with being a prohibited person in possession of a firearm.
Some have argued that the judge erred in not allowing the jury to see and feel the Sig 239. The defense had argued that the weapon does not have safeties and somehow the trigger pull is so light.. well… it is just bound to go off. When the jury asked to see the gun during their deliberations the defense begged the judge not to allow it.
He agreed with the defense.
That, in my opinion, was an egregious error… but frankly, I’m not sure it would have made much of a difference.
The jury seems to have engaged in a form of “juror nullification”. We don’t like to talk about this much at bar, but jurors cannot be compelled to find an issue of fact. When the application of law to the facts will create what they consider to be an unjust result, they are free to find the defendant “not guilty”. This essentially points the proverbial finger to the State, and says “Yeah, its pretty obvious what happened, but we think the law is unjust, and we are not going to allow this poor aggrieved victim of the State to be victimized further.”
It is abundantly clear that the “social justice warriors” of San Francisco found their way onto this jury. They may or may not have known that the defendant was an illegal alien. They clearly knew he was an immigrant of some sort… he had translators during the trial. They were not about to let this poor victim of systemic racism and economic exploitation be further victimized by the white male power structure. (Forget the fact that the prosecutor was a female, the victim was a female, and the judge was Asian.)
We are left to ponder… If the defendant had actually been successful in killing the sea lion, would the jury have been so lenient with him?
I spent my college years at the University of San Francisco… I am saddened, yet utterly unsurprised as to what has become of the ultimate experiment in collectivism and so called social justice.
Back in the early part of this century, there was a brief attempt to establish national reciprocity for CCW holders. Something akin to the current HR-38 that languishes in the House of Representatives. Senator Diane Feinstein was dead set against this. She articulated her views by stating that an individual residing in a “Shall Issue” state (like Nevada) could choose to travel with his firearm across state lines into California for the purposes of harming his estranged wife.
So an individual that has rationalized the act of murder will be stopped because of a prohibition on a method of carry?
On its face, the argument seems idiotic… but when we look deeper, we see a paradigm that governs all of the rhetoric of the Anti-Gun side. On even a deeper level, this same thought process animates many of the policy makers that have a vested interest in the perpetuation of collectivism.
A fundamental belief that rage can be tamed by words. Stoicism, can be legislatively mandated on the most impassioned. That murder… can be forestalled with a restraining order.
There are two types of laws in criminal justice theory. Malum in se, and malum prohibitum… each, must be clearly understood by not only the citizen, but by the legislator.
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Malum in se refers to a law that theoretically the citizen should have a priori knowledge of. We will not delve into the philosophical pedantry associated with epistemology. Suffice to say, there are certain “things” that are so taboo, that anyone with an assertive conscience will simply know it is “bad” without the necessity of a legislator telling them so.
This is not to be confused with moral relativism. In any society, regardless of their development, there are certain constants. Even to include the prohibition on murder. Ritualistic sacrifice and battle might exist, but these acts are not considered “murder”. One does not need the enlightenment of the decalogue to know that “thou shall not murder.”
As such, laws that focus on the codifying of criminal conduct of Malum in se typically have little opposition. They are relatively few and far between, and essentially outlaw those acts that have already been outlawed by our own conscience. Jimminey Cricket may have a legislator in his pocket… but he really does not need him. The fact that the citizen has a conscience at all, serves as the protector of society for these ultra heinous crimes.
Malum prohibitum is a different animal altogether. Essentially, the power of prohibition derived from the law uses the argument: “It is bad, because we say it is bad.” Without knowledge of the prohibition, the citizen could not rationally deduct its existence. In essence, the law exists to help regulate the affairs of people and is subject revision as time and society warrant.
Some laws that have been argued are malum in se, in reality have been malum prohibitum. When society becomes more enlightened (or lazy depending on your perspective), the laws are edited or abolished to fit new circumstances. Laws prohibiting drug possession have been argued to be malum in se since their development following prohibition. Today, arguably many states have changed their views to suggest they are in fact malum prohibitum.
What does remain constant throughout history is the utter folly that comes with the use of malum prohibitum laws as buttress to those that are malum in se.
This is the standard fare for the anti-gun lobby. The tool of destruction becomes more symbolic then the destroyer. It is not the actor, it is the act. The desire to cause death is less relevant then the means at which the criminal choose to deliver death to his victim.
The scoffing at a restraining order comes from this intellectual disconnect. The estranged wife lies in a pool of blood, still clutching the restraining order she received that morning from the court. Clearly, we must rule out the husband in this murder because… well… she had a restraining order against him! It must have therefore been someone else!
A child can see the idiocy of this line of thinking.
The breaking of a restraining order is a malum prohibitum offense. It is meant to protect the individual that possesses the restraining order from a potential malum in se attack that might come about in the future.
Yet, someone that is prepared to commit a malum in se crime, will have complete indifference to a malum prohibitum offense.
No one ever paused before committing a murder to ensure that the weapon he was using complied with state laws.
There is an old adage amongst those of us in the Second Amendment community, that the only people that torture themselves into compliance with gun laws are those that do not need to be regulated in the first place.
This is profoundly true.
Those that commit malum in se offenses have little need nor regard for the malum prohibitum regulations that cause consternation and contortions among the law abiding. Those that do strive to follow the law, are the least likely to ever commit a malum in se offense.
Thus, we have the bizarre result that weapons that were designed to allow us to protect ourselves from the tyrants that would commit a malum in se violation are so difficult to procure or are otherwise neutered to an extent that the tyrant has both the advantage of choosing the field of battle, and in many instances being better armed then his victim.
The Framers codified the Second Amendment to ensure that the right of the People to keep and bear arms shall not be infringed. Tyranny is the ultimate malum in se offense, and when the defense against tyranny is befuddled by such as convoluted labyrinth, as is the state of our current gun laws, the only beneficiaries are in fact: the tyrants themselves.
“Freedom is nevermore than one generation away from extinction….”
-Ronald Reagan (Ronaldus Magnus)
Regan was absolutely correct.
Each successive generation has two separate windmills that they must battle. Encroachment of bureaucracy and jingoism. (The left loves to rally against our patriotic notions, our flags, and our homage to our Founders… To them jingoism is evidence of our bourgeoisie nature. Unfortunately the left is typically more inclined to focus more of the fashion then the frame. Their assault on the tapestry of patriotism simply misses the point altogether. The real perniciousness assault is from a forgetting of why we exist in the first place: Individual growth, the maximization of happiness, and the establishment of a free society where both can take place.)
As a society develops and moves in successive generations away from philosophical underpinnings of the Founders of that society, a spiderweb of laws and regulations begin to take hold. Alexis de Tocqueville was quite the predictor that America would not succumb to a foreign invader… she would rot from over regulation.
He was prescient in his observations…
Ronald Regan articulated the obvious solution and dire warning. Freedom is truly nevermore than one generation away from extinction. Each generation must know what is at stake…. and how to fight for freedom. Sometimes… sadly… the fight for freedom must come from the edge of a blade or the impact of a bullet. Other times, it comes from the banging of a gavel or simply the education of our youth. There are many “soldiers” each generation must enlist in the fight for freedom. For as a long as human nature exists, the war between freedom and those who would enslave will continue to rage on.
So last weekend a “soldier” from the newest generation went to battle on behalf of freedom. She is our daughter: Chaney.
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Chaney is a member of an organization called JSA (Junior Statesman of American) think of this as a cross between Model UN and the Debate Club. Throughout the country, high schools have JSA chapters that meet regularly and discuss and debate various political topics. A few times a year, multiple chapters come together for “State” conferences where more formalized debates and resolutions are argued. The political intrigue in this organization rivals “House of Cards” with calculated alliances and gambits taking place in vape filled hallways and backrooms.
The political culture of these groups is both diverse and extreme. Cartoon Conservatives crowd for space amongst long haired Libertarians and Confused Communists. The dynamic atmosphere is electric… with hundreds of high school kids developing their own political philosophy and becoming politically engaged. Some of their ideas may be dangerous… some silly… and others… well others, can give us hope.
This last weekend Chaney went to a conference here in Irvine with about four hundred JSA students. The theme for one of the debates was gun control. Dr. John Lott, the economist and author of “More Guns Less Crime” was in attendance to debate members of the Brady Campaign.
Chaney debated the idea of allowing teachers with CCW’s to carry their guns in the classroom.
As you can imagine, her position was to allow teachers with valid concealed carry permits to carry in the classroom. Her opposition appealed to a myriad of emotional pleas why weapons in the classroom… even concealed… would effect the harmonic balance of the universe.
Chaney focused instead on logic…
Logic and philosophy.
Asking a fundamental question: who is empowered to decide if a student should continue to exist? Clearly the “school shooter” should not be granted that power… yet they wield it none the less until someone or something of greater force is brought down upon the tyrant. Clearly the teacher should not be allowed to decide who in their class lives or dies. The teacher was never given authority over the student in matters of their continual existence. Should the Principal be given that power? The school Superintendent? The Governor? Congress? The answer is none of the above. The matter is; existence is an inalienable right that cannot be usurped by the the government or anyone else for that matter.
Apparently, her compatriots and comrades liked her argument. She was awarded the “gavel” for her debate performance and the powers of persuasion.
Freedom IS a mere generation away from extinction… We constantly see families coming into Artemis to train. Fathers and Sons, Mothers and Daughters… whole families learning about gun safety, security… and for some… developing an appreciation for the culture of self reliance and rugged individualism that made us who we are: fundamentally Americans. I am humbled to know that a new generation of paladins are in training and taking up arms to defend her.
Von Clausivitz, in his seminal work “On War” articulated a basic precept of combat, “War is the continuation of diplomacy through other means”. While Von Clausivitz has been criticized for the cavalier attitude towards conflict, I think that his insight into conflict was brilliant. Specifically… it shows an understanding that conflict, and by extension violence, exists on an extreme end of a continuum of human interactions. To deny its existence would be to deny one of the basic aspects of our humanity.
We are creatures of peace… when peace is appropriate.
We are practitioners of violence, when violence is righteous.
Many feel uncomfortable with that statement. They prefer to inoculate themselves in a convenient religious doctrine that demands peace as a spiritual contract. Yet, they expect the government to provide services of violence in order to provide them safety. Like the anti-hunter that bemoans the sportsman taking a deer, yet is completely comfortable going to the grocery store to buy their ground beef.
Violence is part of the human condition. It has been since we emerged from the ooze and will continue to be as long as there are creatures that require protein for survival. Denying that reality will not mitigate its effects.
Throughout this last week, there have been calls for the banning of semi-automatic firearms, again.
There have been calls for the study of mental illness… again.
There has been angry rhetoric against the NRA as well as gun owners, as somehow the mere presence of a weapon is the instigator of violence. Perhaps in a limited sense that is true. After all, if the world did not exist… there would have been a need for a flood. If it were not for the need of human interaction, the feelings of isolation or loneliness would not exist. The proximate cause for violence and suffering does not come from the weapon… it comes from the actions of the individual, spurned on by their own misguided motivations.
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I mentioned mental illness earlier as one of the demons often blamed for incidents of mass violence.
This is an understandable reaction and one that is often looked to by both sides of the “gun debate”. For a rational individual that has accepted the basic paradigm of society, it makes little sense that anyone would allow their frustrations to rise to the level of violent conduct. We take comfort in the fact that the monster that inflicts violence on innocents are somehow “broken” or victims themselves of abuse or chemical manipulations. For when the accused is defined by all as the “other” it elevates our own moral standing. It also creates a clearly defined wall of acceptable behavior and that which is uncivilized. When we see the perpetrator of violence as a broken creature, we reaffirm our own place in the universe… we might have our own issues… but we’re not that guy!
We also distinguish between acts of violence that are done against the tribe, and acts of violence that done in protection of the tribe. The monster that shoots a factory full of workers is lacking any sense of moral redemption. The warrior that stands as a paladin defending society against a mob full of violent agitators is someone to be looked up to. This is, as it should be, for not all acts of violence are equal.
Yet, what if mental illness is as much of a continuum as violence itself? We always say a shooter is “sick” and of course that must be true. What type of rational individual would kill and maim innocent people? Yet, how is a “sick” person able to function in society up until the point that they engage in their egregious conduct? The Virginia Shooter, the Las Vegas Shooter, the San Bernardino Shooters, the New York Home Depot Truck Driver, the team that attacked the Paris Night Club, the stabber that murdered children at a school in China… they all share one thing in common. A desire.
Their desire might have been motivated by politics, religion, or demons… but they all had a desire. That desire was so encompassing that they were able to transcend the social norms that hold that life is precious and to be protected not taken. More to the point, the legal restrictions on acquisition and possession of weapons, would by extension specifically not apply to these individuals. For if someone is empowered to such a degree that they would take the lives of others, why would a lesser offense prevent their actions?
If I am completely motivated to engage in murder and mayhem, why would a restraining order act as a barrier to carrying out my carnage? Why would limiting access to firearms prevent me from killing? Quite the contrary… limiting access to firearms may in fact enable my killing spree to go on longer then it would have were my victims in possession of arms themselves.
To believe that evil is something that can be regulated is the ultimate height of folly. Evil is often seen as evil specifically because it cannot be regulated. Those that would examine the laws of the tribe and specifically reject them scare us. They scare us, because they have exempted themselves from the social norms of the tribe. Without those norms, without those regulations on human conduct, their actions are unpredictable.
They are also not going to go away.
Their motivations might change from generation to generation, but they will have those same insatiable desires none the less. We must focus less on them, and instead focus more on us. War is the continuation of diplomacy by other means. We may try and provide them social service, we may try diplomacy to modify their behavior… but when they choose to raise the hand of violence towards us, we must be decisive in our response.
I don’t want to talk about monsters.
I want to talk about heroes.
Unfortunately, heroes are usually only identified after the monsters show up.
On Sunday, when we were at the range qualifying CCW class 71… I got the alert on my IPhone. Scores dead in Texas church shooting.
My first thought, (a sad commentary to the world we live in) was that this must be a black church, and someone has again chosen to victimize African Americans at a house of worship.
Little did I know that the assailant was simply a misguided piece of human excrement that apparently also considered himself an atheist. Ironically, this is after he had taught bible study at that church? We also know he had domestic disputes with his wife, and her family. The family was entrenched in the church, so his rage apparently transmuted to the congregation as a whole.
Whatever… they guy was a piece of shit.
I am far more interested in talking about heroes; Stephen Willeford and Johnnie Langendorff.
These two individuals…civilians… both, had no prior military experience.
What they did have, was a blessed combination of knowledge, skill, and balls.
The criminal came to the party with a load out for war.
At the time of the writing… the story goes:
He was clad in a plate carrier vest and had an AR style variant in his possession. When the carnage began, the two heroes sprang into action. One ran towards the sound of gun fire and engaged the suspect with his bare hands, disarming him.
When the suspect began to flee… Stephen Willeford, using the same rifle that he had requisitioned from the slob used it to nail the suspect in his support side.
(The UK Daily Mail was quick to point out in surprised language that Stephen Willeford has no prior military training! Ummmm… To the editors of the UK Daily Mail: I get your surprise from your vantage point in Europe… but let me explain something. Mr. Willeford is a Texan. He has lived around guns. He has hunted game his entire life. He represents the foundation of what the Second Amendment is about. When Tyranny raised its hand, (and make no mistake tyranny does not necessarily come from the hand of the government. Tyranny come from anyone or anything that would use force to deprive a citizen of their rights without due process.
In this case the suspect used force to deprive these innocent people of their right to exist.) Mr. Willeford used his knowledge of weapons, ballistics, and marksmanship to fight back against tyranny. The ultimate exercise of his Second Amendment rights.
With the suspect now fleeing and wounded, a second hero emerged. Johnnie Langendorff a local cowboy appeared on his modern day horse… a pick up truck. With Mr. Willeford in the passenger seat with the rifle trained on the fleeing suspect in his car… the two gave chase.
That chase ultimately ended with the suspect crashed, and dead off the side of the road.
We can debate the value of gun control, we can bemoan the lack of adequate reporting when it comes to mental health and all the corollaries to that.
But at the end of the day, we should focus our attention not on the shooter… but on the heroes that remain.
Mr. Willeford and Mr. Langendorff are examples of what makes America… well… America.
Citizens that rise to the call of duty and even in extreme indifference to their own safety do what is necessary to save others.
Gentleman. In our days of sorrow that lay ahead, we look to you as shining examples of what it means to be a true American Hero.
As we pause in silence for the fallen, we will shed a tear than raise a shot of whiskey in your honor.
Well done boys.
Some of my favorite emails go something like this:
“A client needs to talk with you ASAP! SWAT team showed up at his house and took his rifle after he tried to register it! Call him now!!!”
Before we get into the weeds on this one, let me re-iterate my feeling about “Assault Weapon” registration:
The other day, I received a lovely poster in the mail, courtesy of the California Dept. of Justice. It was an encouragement to register “assault rifles” and they were asking us to hang it prominently and proudly in our lobby for all to see.
I promptly folded it back up and put it in the DOJ file. If I were ever to post that, I would be guilty of legal malpractice. Self registration is… in my opinion, a recipe for disaster and… a Fifth amendment violation to boot. That being said, there are still those that will want to register…. and they will do so without the advise of legal counsel. To those that fall into this category, the following is a cautionary tale.
I contacted the individual on the email. He had attempted to register his weapon with the Dept. of Justice, and for his trouble, he had a contingent of State Agents from DOJ visit him at his home. They asked to see said rifle, and when he produced it, they promptly confiscated it and left him with little more than a receipt. Unaware of the law, the client had built his AR-15 with a standard magazine release and had photographed it and sent it up to DOJ. He was informed by the agents that the magazine release was illegal.
He was confused.
This was his first AR that he had built, and he had bought the parts from a local dealer. The standard magazine release was the item that came with the kit. In his mind, since he was buying all of the “stuff” here in California, it must be… per se… legal.
He had already lawyered up, so there was little for me to do assist him. I was curious though to hear DOJ’s reasoning for their “raid” and fortunately, the individual was more than happy to give me the phone number for the lead DOJ agent.
After talking to DOJ, I learned there was a little more to the story.
Evidentially, the individual in question had purchased the stripped lower and the build kit this year. (Not prior to January 1, 2017). He manufactured the rifle and then attempted to register it via the DOJ website.
When it would not take his information, he simply altered the date of acquisition to prior to January 1. With the amended date, the website now processed his application. In his mind, he simply thought the website was broken. He had no idea that what he was doing was prohibited as an application of law.
When DOJ got a hold of the application, they compared the acquisition date to the DROS date and saw the discrepancy. They had no idea that it had a standard magazine release on the rifle (as per the agents comments, being able to identify the magazine release via a photograph is virtually impossible).
DOJ had really no idea that the weapon possessed a traditional magazine release until the individual went to his safe and handed it over to the DOJ agents.
They explained what was wrong with the rifle, and told him they would need to confiscate it, but they did not arrest him.
The lead DOJ agent wanted to see if he could allow the individual to simply remove the upper from the lower thereby taking it out of the assault weapon category. His handler in Sacramento told him no… that would be tantamount to a destruction of evidence.
Again, the agent stated that he could tell the individual was not a criminal. He was not someone that had a nefarious intent. He was an older man that was as confused by the registration process as many law enforcement officers are.
The moral of the story?
If you feel you absolutely must register your AR, do so only with the advise of counsel. The ramifications are simply too great. This may seem self serving coming from a lawyer, but it is well worth the time and cost. The individual in question is now out a couple of thousand dollars worth of rifle, and it is doubtful he will ever get it back. (It is not inconceivable that we might be able to get the non regulated portions returned, but that might literally take a few years.)
Want to save the legal fees?
Follow my original advise, and keep the rifle featureless or make it a fixed magazine.
It sucks comrade… but such is life here in the Collective.
More Guns Liberated
A few months back, the Law Offices of Lieberman and Taormina got an interesting call. A gentleman, by the name of Tony called me with a problem.
Back in January, he had needed the services of the police to deal with a domestic issue. As often times is the case, the police “assisted” by simply arresting everyone in the home.
This is obviously problematic for a legally abiding citizen. No one ever wants to go through the indignity of an arrest, even when there is virtually no chance that a prosecution will ever result from it.
When a gun is in the home, this creates an entirely different wrinkle in the equation. Make the gun an “assault rifle” and be a “large capacity firearm” and baby… thats when things get really interesting!
I understand the basic public policy in separating volatile family members. I even kinda, sort of understand the argument for taking the guns. That being said, the argument is fundamentally flawed.
What if those guns are ultimately used to protect the owner from subsequent violent assault from the problem family member?
What if the owner needs to protect himself from the subsequent violent assault from the problem family member’s new beau?
Why stop just at firearms? More people are violently attacked with knifes each year…. why shouldn’t the police raid the kitchen and take all the steak knives? The Second Amendment recognizes an individuals right to keep and bear arms…. aren’t knives “arms”?
If the goal is to protect “everyone” of the parties from the sudden outburst of emotionally driven violence, why stop at guns and knives? People run down other people with their cars all the time! Let’s also confiscate the parties’ cars!… and their screwdrivers, their garden tools, sporting equipment,… you see the problem?
Well… that all not with standing, in this instance, Tony was “arrested” and all of his weapons were seized. He does have a substantial collection of firearms. All legally acquired, and most of them rarely shot.
After five days, the police began the process of returning the firearms. Two were immediately at issue. One was a IWI Tavor… the other a DP-12
The Tavor is a bull pup style rifle that… up until last year… made use of a bullet button to avoid the “assault weapons classification. The DP-12 is a shotgun with two attached seven round magazines… giving it a grand total of fourteen rounds on board.
The police contacted the California DOJ, and essentially said, “Hey… can we return these guns to Tony?”
DOJ replied with “No”.
Tony then called the National Rifle Association back in Fairfax Virginia, and they in turn referred them to the good offices of Lieberman & Taormina.
When Tony came to our office, I explained to him that it would probably end up costing him more to get the guns back, then the guns were actually worth.
His response was to pull out a checkbook and say “How much?”
He was pissed!
As he should be.
The State had taken his firearms not as a consequence of breaking the law… but as a prophylactic measure. Now that they had seized his property, they had no intention of returning it. If you or I did this… it would be called burglary and possession of stolen property!
So… the race was now officially on.
We contacted the police and interestingly found out that they were basically on our side. The property officer began the conversation by stating that before he is a cop, he is a patriot… and what was happening to Tony was a travesty of justice. He provided me with some basic discovery and a copy of the official statement from DOJ. This was not a DOJ attorney, this was a DOJ field rep that was essentially engaged in the unlicensed practice of law.
We ultimately had to file a motion for return of property and serve the police department. With a court date set, the city attorney’s office was the winner of the “you must object to this!” award. The City Attorney was himself not particularly thrilled to be on his side of the legal equation. To make matters worse, DOJ rejected all requests to be brought into litigation.
Basically, they caused this problem… and now were refusing to participate in it’s clean up.
We went to court and argued our motion in chambers. Our case turned on two theories for each of the guns.
On the Tavor we argued that Tony had been given a statutory opportunity to register his weapon as an assault rifle, or alternatively make it featureless or put a fixed magazine on it. With the police refusing to return his property he was essentially estopped from performing the remedial actions necessary to make it California compliant. The State cannot set the ground rules, forcibly prevent you from satisfying the ground rules, then claim you are not in compliance.
The second theory rested on the DP-12. We argued that the weapon was per se legal. After July 1, it potentially could have become illegal, but for the ruling in Duncan v. Becerra. (This was the ruling where Judge Benitez granted the plaintiffs a preliminary injunction against the large capacity magazine ban. With this injunction in place the State was literally claiming a violation of law that under court order they were prevented from enforcing.)
Our judge evidentially agreed with us.
After returning to the courtroom, he called our case and granted our motion. Armed with this, we contacted the police.
They were.. (frankly, as they had been from the beginning)… completely helpful. They congratulated us and we set up a time to pick up the weapons.
With them now in our possession we began the process of returning them to Tony. Another victory for Lieberman and Taormina… and two more guns liberated from the political prisons of California!
As we approach 2018, there have been some questions and concerns regarding ammunition purchases here in California. (To my readers living in Free States, I urge you to continue reading this…. you have anti-Constitutional movements in your home states as well, and you would be best served in understanding what has happened here…. for inevitably, it will make its way towards you.)
AB-156, which begins going into effect on January 1 will have, (once it is completely implemented) a dramatic effect on how we acquire ammunition. Like most of our gun laws, I believe it is patently unconstitutional… however, since it is patterned on similar legislation that exists in New York… (another bastion of rugged individualism)… it is likely that many of the theories we would use to overturn the law have already been fleshed out by courts. This is not to say we won’t make those arguments…. and perhaps with different results. Judge Benitez surprised us, when he issued his preliminary injunction against the Standard Magazine Ban, with a solid, well reasoned opinion that upheld the Second Amendment and the right to keep and bear arms. Then again, this is the land of the Ninth Circuit, a court that is solidly “outcome determinative” in their proceedings. They have made the “water boarding” of logic into an art form. Torturing reason until it bends and contorts into such a manufactured state that it fits the policy goal they seek to propagate through their opinions.
So, I am not particularly bullish about this law being overturned any time soon.
Then again, I’ve been wrong before, lets hope I am wrong again!
This all being said, this law and its implementation phases are uniquely complicated. Part of the complication is an utter lack of reasoning behind the law in the first place. When the policy objective and the law bear little rational to one another, the law itself is called into question and compliance with it also becomes problematic.
In my military unit, I have a civilian judge that when performing his military service, acts as my S2. He lives in Los Angeles and for the last eight years has been given a judicial CCW. He is currently in the process of renewal. His “good cause” is pretty obvious and has not changed during any of his carry periods. This time however, he is getting push back from the LA County Sheriff. He asked his background investigator what the problem was and she said the Sheriff does not feel that your “good cause” is strong enough. His response was, “well, does that mean I need to send back my current card right now?”
“No, of course not. You can carry until that card expires.”
“But wait… you said that my good cause was not good enough, it is the same good cause that I used when this card was issued. Are you saying that my good cause is ok for right now, but not good enough six months from now?”
“Ugh, yeah… I guess.”
“No investigator.. you do not guess. If the issuance of this card is based on a reasoned understanding that my good cause is sufficient, it cannot become insufficient in the future without some intervening rationale.”
“Ummm… yeah… well… they are saying that your good cause is not strong enough for your renewal.”
(Why won’t the government just admit when they are engaged in flat out “MSU”… “Making S@#t UP? At least then, we could understand what they were doing!)
But I digress….
AB 156 needs to be dissected as to it’s goals as well as its implementation. That being said, I warn you… if you are looking for intellectual consistency… or even a vague rational basis towards a legitimate government interest… you will be sorely disappointed.
Starting January 1, 2018, you will no longer be able to purchase Ammunition via the internet. Well… sort of. You can still purchase it online, you just cannot have it delivered directly to you. According to §30345 all transfers MUST take place face to face and only through a licensed ammunition vendor. Ammo can be bought online, it just needs to be shipped to a “licensed Ammunition Vendor… typically an FFL… and then you will need to physically go there to pick it up.
The funny thing is, there is no statutorily required “things to do list” when you get there.
Ostensibly, the FFL would take a copy of your Drivers License, but there does not appear to be a requirement (On January 1), that you will need anything else. Moreover, the FFL is really not given any instructions on what type of records they need to keep showing the transaction. The only thing I can think of is that the California Legislature wants to get into the matchmaking business. With this law, people that conceivably have never met one another will now have to have a face to face encounter before ammo is transferred.
Perhaps life long friendships will be formed, and maybe even a marriage or two.
To ensure that the buyer still has enough disposable income to take the FFL out on a date, they have written into the legislation in §30346 that the FFL cannot charge more the $10 for the transfer.
There is also a misconception that as of January 1, 2018, you will not be able to “transport” ammunition into California. This is not accurate. It will happen, but not on January 1. Things start getting more complicated in the next phase.
Starting on July 1, 2019 according to §30356(a) the borders will be shut..(a wall? bon chance).. and no ammunition will be allowed to be transported into CA. Moreover at this time the weird face to face transaction thing gets more formal. Starting on July 1, 2019 the FFL (or other licensed vendor… there is the possibility that non-FFL’s might get licenses too), will have to electronically file the transaction. The legislation suggests that at the time of filing, the purchaser will have their identity checked against a record or prohibited persons. This would suggest some sort of NICS system, where an instant background check is performed every time someone wants to buy or pick up ammunition.
This is also where things get a little… interesting.
Back when George Bush pushed for the initial Patriot Act, I was all in favor. The selling point of the Patriot Act was that intelligence information gathered in methods that were not exactly “Constitutional” would never the less be actionable by the government. This intelligence would be restricted exclusively for use against terrorists.
Six months later I was driving home and listening to a news broadcast. The Washington State Attorney General had just secured a conviction against two drug traffickers that had built a fairly extensive underground tunnel system from British Colombia into Washington. At a press conference, she boasted about her victory, and thanked the Feds, stating that a conviction would not have been possible had it not been for phone conversations recorded through the provisions of the Patriot Act and turned over to prosecutors.
What the F@#$#ing hell!?!
That act had been specifically devised as a means of protecting US Citizens from acts of terror. Now a mere six months later, it is being used a means of doing an end run around the Fourth Amendment and prosecuting drug traffickers?
Yeah… THAT is NOT Kosher.
I can see the same thing happening here.
The State of California has records of all of the guns that are purchased between an FFL and a customer. That being said, there are a lot of people that have firearms legally in their possession that never went through an FFL transfer. The idea of registering them with the State of California is understandably not something that most gun owners are particularly thrilled about doing.
Say a buyer wants to purchase 1000 rounds of 5.56 ammo. Yet according to State records that buyer does not own a weapon capable of shooting 5.56. Is it reasonable for the State to believe he maybe buying the ammo to resell it to a prohibited person? I don’t think so,… but an anti-gun judge might… and a search warrant issued.
Now, we have the spectacle of people suffering the indignity of a search warrant at their homes, and with it the automatic confiscation of firearms associated with that warrant. Oh, no worries… when it comes out that they are law abiding citizens, they will get their guns back…. eventually.
It might even require the services of a lawyer to liberate the firearms. That costs money, and not everyone will be able to afford an attorney.
And this is all for what? Does anyone really think that the regulation of ammunition will provide protection for anyone?
And the beat goes on…..
The Declaration of Independence ends with a statement, ostensibly directed towards the Framers themselves, but in a deeper sense, it is a promise to King George as well as future generations of Americans. In a real sense, the Framers were writing directly to you….
“…with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”
There were two separate objectives with this closing line: 1) Let the world know we are “all in”. and 2) Let future generations of Americans know that the defense against tyranny is not without real sacrifice.
We have grown and lived with the blessings of liberty secured by brave men and women who, at times were called upon to make the ultimate sacrifice for our freedom. We tend to look at these individuals as selfless giants that gave all, so our Constitution may survive.
We often overlook the individual that sits in her office until the early hours of the morning researching the law so that she can present an argument in defense of her client. An act of civic virtue so basic to our experiment in limited government that without her our Republic instantly fails.
We overlook the “activist”. The coffee house philosopher that questions the status quo and agitates for change.
We overlook the solider… no… not the SF operator that daily goes in harms way and has movies made about him… rather the mechanic, or the intel analyst, or the Quartermaster or the flight deck officer, that while not exactly the “tip of the spear” is the spear itself.
We also overlook ourselves. We go about our daily lives doing the things that need to be done to take care of ourselves and our family. We care little for politics… save the the bright shiny things that require our notice and outrage, so we are not left out of our office water cooler discussions.
“We” however were part of the audience that the Framers were talking to.
More specifically YOU are.
COMING FROM THE NEWSLETTER? START READING HERE…
Tyranny is a beast that arises naturally from the inherent nature of man’s desire to control the destinies of other men. (Forgive the masculine language, but I’m on a roll right now.)
Tyranny does not take place within a vacuum. It requires the active participation of both sides of the equation: the rulers and the subjects.
When the subjects have had enough of their rulers, they assert their power granted them by the Creator and alter their own status to that of Citizen.
Our Framers envisioned a county where Citizens were always in control. They crafted a government that had only limited enumerated powers to ensure that this dichotomy would remain intact.
Yet, we must never forget… many of us live outside the philosophical United States… we live in California.
As gun owners, we are for the most part philosophically different from most other people on this planet. We are individualists. That is not to say that collectivists don’t own guns. Some of course do, but in no where near the numbers as individualists do. We are however not individualists because we own guns… we own guns, because the gun is the ultimate reminder that we are ultimately responsible for our own safety and protection. (Well, that… and they look bitch’n and are fun to shoot).
Individualists are very often patriots.
We love our country not for the pageantry that is the American Experience… some of it is pretty dark, and we would be the first to point that out. We are patriots, because the ideals that were set forth in the Declaration and the Constitution are in our opinion immutable. They are “First Truths” that give dignity to the individual.
Collectivists don’t necessarily feel that way.
California is governed by Collectivists.
Tyrants have always, and will always be collectivists. They must be. For it is the subjugation of the collective that gives the tyrant the false promise of power. Individualists that antagonize the collectivists, through word, deed or action are an existential threat to the tyrant. That is one of the reasons that guns are so anathema to them.
With a gun, two things happen: The subject becomes self reliant, and the State loses a degree of power.
Neither are endearing of the tyrant.
Our Framers did not want revolutions to necessarily be bloody affairs, but they also knew that revolutions needed to happen from time to time as those entrenched in power would seek to fortify their positions. That is human nature, and to check against that natural progression we created checks and balances, as well as an acknowledgment that power was ultimately rooted in the people.
To that end we “institutionalized” revolution through the power of the ballot.
When people vote tyrants out of office, they are effectively engaging in a bloodless coup. An institutionalized insurgency, that reflects on the brilliance of our Framers.
Yet for this to work properly, people must actually vote!
I referenced those heroes that are given little notice earlier… you are one of them.
You must engage. You must vote. You must embrace the mantle of Citizen and refuse now and forever to be a Subject.
Two weeks ago, Steve Tarnai was here at Artemis teaching a class on Weapons Retention. Twenty some odd people were here for two days, learning how to manipulate their weapons in such a manner as to reduce the potential for an adversary to disarm them.
Hours were spent working through the steps necessary to retain a weapon against a hypothetical adversary….
Yet, real adversaries exist that right now are trying to disarm you! The majority of the Legislature in California as well as the Governor believe you should be disarmed. The 9th Circuit Court of Appeals has tortured logic to such an extreme in an effort to limit the Second Amendment, that they have damaged other areas of the law, and made themselves into a national joke. The intellectual veracity of the Court has been infected by those on the bench that are “outcome determinative”. As a result, the inherent power of the Court has been degraded.
So… you have these arrayed forces of collectivism before you. All salivating at the opportunity to take your weapons and disarm you… and you do:
Well perhaps that is not entirely fair. You do bitch. You Kvetch. You click on “dislike” buttons on Facebook.
That is not enough.
I urge you to all go to home.nra.org and become a member of the NRA.
Then… for those of you who live in California: go to CRPA.ORG and join the California Rifle and Pistol Association. These two organizations are the leading advocates that protect our gun rights both on a National and a State level.
To exercise that right you must take the responsibility to inform yourself on the candidates and the issues. We have a unique opportunity to be educated this month. There are two announced candidates for next years Orange County Sheriff’s election: Undersheriff Don Barnes, and Aliso Viejo Mayor Dave Harrington. Don Barnes was at Artemis last Thursday night. He spoke on his vision on the Department and the OCSD policy on CCW’s. Dave Harrington will be coming in on Thursday Oct. 25th from 6pm to 8pm for the same opportunity to address you. Call in and reserve your seat… show both these candidates that you are interested in engaged!
You are a patriot… act like one!
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