Category: Courts

Michigan School Shooter’s Mother Found Guilty in Precedent Setting Conviction

Jennifer Crumbley, the Michigan mother of a child who carried out a mass school shooting killing four students in 2021, just became the first parent in the U.S. to be held responsible for their child’s criminal actions. She was found guilty today of involuntary manslaughter. The unanimous verdict in the unprecedented case came on the second day of deliberations.

Crumbley, 45, had been charged with four counts of involuntary manslaughter, one for each victim. Being found guilty, the mother faces up to 15 years in prison for each count. She will be sentenced April 9.

Prosecutors made the case that the mother had a duty under state law to prevent her son’s actions by securing the gun and ammunition at home and obtaining mental health services for her son who had allegedly shown signs of a distressed mental state prior to the shooting.

In what in hindsight now seems like an epic failing by both the parents and the school, Oxford High School in Pontiac, Mich., where a then 15-year-old Ethan Crumbley was a student, the parents, James and Jennifer, had been summoned to the school after the boy was caught drawing pictures of a gun, bullets and a wounded person on a math assignment accompanied by phrases crying out for help. According to a journal police found after the shooting, Ethan had written his parents ignored his pleas for help and lamented that he had mental problems that were going to cause him “to shoot up the…school.”

The parents met with school administrators that morning and talked to Ethan, but then he was allowed to return to class. Nobody checked his backpack, which contained a 9mm SIG, his parents had bought him as an early Christmas present just four days prior.

Jennifer Crumbley had also taken Ethan to the range just three days before and was the last known adult to handle the weapon prior to Ethan using it in the school shooting. The boy, now 17, was charged as an adult with murder and terrorism and eventually pled guilty. He is currently serving life in prison without the possibility of parole.

James Crumbley, the boy’s father, is set to go to trial on March 5, 2024, for the same charges Jennifer faced. He is currently being held in jail on $500,000 bond.

Between firearms storage laws and additional legislation in states across the country, there has been an increasing effort to hold the parents of juvenile mass shooters responsible for their children’s actions where negligence on their part may have played a hand in their child accessing the firearm(s) used in such crimes. With the Crumbley case now setting a precedent for the conviction of a parent

Numerous Amici Join NCLA’s Ask for Supreme Court to Rule Against ATF’s Unilateral Bump Stock Ban

New Civil Liberties Alliance
Merrick B. Garland, Attorney General, et al. v. Michael Cargill

Washington, D.C., Feb. 02, 2024 (GLOBE NEWSWIRE) — Ten U.S. Senators, ten law professors, and multiple civil liberties groups, policy research organizations and attorneys have filed 13 amicus curiae briefs supporting the New Civil Liberties Alliance’s position in the Garland v. Cargill case that bump stocks are not machine guns. Representing Texas gun shop owner and Army veteran Michael Cargill, NCLA challenges the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Bump Stock Final Rule and ATF’s expansion of the criminal scope of a statute by administrative fiat. The Final Rule reversed ATF’s long-standing recognition that bump-stock-equipped firearms are not illegal machine guns, and the U.S. Court of Appeals for the Fifth Circuit rightly shot down the Rule early last year.

NCLA has arranged for former Texas Solicitor-General Jonathan Mitchell to present oral argument to the Supreme Court on Mr. Cargill’s behalf on Feb. 28, urging the Justices to confirm the Fifth Circuit’s ruling. NCLA thanks the amicus parties for standing with Mr. Cargill and thousands of other legal purchasers of bump stocks.

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18 U.S. Code § 922

(g)It shall be unlawful for any person—
(1)who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;….. to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

What did I mention just last week?

BLUF
Now, we’re all subjects. Last week, four fearful women and a spectacularly weak man, hiding behind their robes of office in a Court whose only constitutionally mandated member is the Chief Justice — leaving the rest to be self-aggrandized — refused to protect the nation without a word of explanation. Message: obey.

Perhaps they’ve forgotten the opening words of the Declaration: “When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another…” If so, what happens next is on them.

The Cold Civil War Gets Warmer

More than a decade ago, somewhere in the pages of National Review Online and writing under the name of my alter-ego, David Kahane, I coined the term, the Cold Civil War, and amplified the subject in my book, Rules for Radical Conservatives. 

Despite all the evidence of the past several decades, you still have not grasped one simple fact: that, just about a century after the last one ended, we engaged in a great civil war, one that will determine the kind of country we and our descendants shall henceforth live in for at least the next hundred years — and, one hopes, a thousand. Since there hasn’t been any shooting, so far, some call the struggle we are now involved in the “culture wars,” but I have another, better name for it: the Cold Civil War.

Hasn’t been any shooting so far. But with his recent rejection of federal authority, Texas governor Greg Abbott may have turned up the heat. Just as the South did during the first Civil War, Texas — supported by fully half the states now — has effectively nullified a Supreme Court order via the simple expedient of ignoring it. In this Abbott recalls another southern president, Andrew Jackson, who (perhaps apocryphally) in the case of Worcester v. Georgia (1832), said, “John Marshall has made his decision, now let him enforce it.”

Or, to paraphrase Stalin, how many divisions does John Roberts have? The Court’s authority derives from the will and the respect of the governed. But when an institution turns rogue, and refuses to act in defense of the nation in the face of clear and present danger, all bets are off.

It’s notable that all four of the women on the Court — at least two too many, but a potent indicator of the continuing feminization of the Republic — flocked together, with Roberts the deciding vote. By now, conservatives are used to getting stabbed in the back from this enduring legacy of the Bush II administration, right up there with the Patriot Act and the Department of Homeland Security/TSA. Bush may be gone — and not all that gone, when you think about it — but the evil he did lives on:

Three former U.S. presidents – Republican George W. Bush and Democrats Bill Clinton and Barack Obama – have banded together behind a new group aimed at supporting refugees from Afghanistan settling in the United States following the recent American withdrawal ending 20 years of war. The former leaders and their wives will serve as part of Welcome.US, a coalition of advocacy groups, U.S. businesses and other leaders.

Just what we need, another “advocacy group,” as if the U.S. government itself hasn’t already been transformed into one under these three presidents and their love child, Joseph Robinette Biden, Jr. But here we are, in the middle of the biggest mass invasion in American history, a tidal wave of largely penurious humanity, unvetted, unchecked, of unknown health status, many of them without passports or any form of identification, criminals upon crossing our borders, and none of them bearing any loyalty to the country — and until recently, no one raised a hand to stop it.

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I don’t have a bump stock, never did, probably never will. But when bureaucraps redefine a law to suit a political agenda restricting the people’s exercise of a right, they need to get slapped down….hard.

CRPA & Allies File SCOTUS Amicus Brief in Garland v. Cargill

CRPA has joined with several other pro 2A organizations and filed a friend of the court “amicus” legal brief in Garland v. Cargill. The case is set for argument before the Supreme Court on February 28, 2024.

The Cargill case will decide whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires “automatically more than one shot … by a single function of the trigger.”

The case is primarily about the scope of the ATF’s regulatory authority and whether it can freely change its positions and interpretations of federal law. It does not explicitly involve any Second Amendment claims. Nonetheless, our amicus brief advises the Court about the significant risk to Second Amendment rights if it rules in favor of the ATF. The ATF has shown an unfortunate willingness to reverse its opinion about the legality of a device whenever it suits the political whims of the Biden administration.

ATF did this on bump stocks, incomplete lower receivers, and pistol braces. So our amicus brief warns the Court that if it finds that a bump stock is a “machine gun,” the logical next step that ATF, or governments hostile to the Second Amendment, could pursue would be to reclassify most or all semiautomatic rifles as illegal fully-automatic machineguns because they could be converted (illegally) to fully automatic. There is support for that position in the Seventh Circuit’s recent absurd ruling upholding Illinois’s “assault weapon” ban, where it wrongly concluded that the semi-automatic AR-15 and the fully automatic M-16 were virtually indistinguishable so that semi-automatic rifles can be banned.

The amicus brief lays out a history demonstrating that Americans have always owned so-called “military” small arms, and expanding the ATF’s authority such that it believes it could regulate semiautomatic firearms would cause chaos and potentially millions of accidental criminals.

Joining CRPA on the brief are the Second Amendment Law Center, Second Amendment Defense and Education Coalition, Federal Firearms Licensees of Illinois, and Guns Save Life. Multiple additional briefs are expected to be filed in the next few days.

The brief urges the Supreme Court to affirm the 5th Circuit’s ruling in favor of Mr. Cargill, and to reaffirm that commonly possessed semiautomatic rifles cannot be banned.  You can read the brief HERE.

Sen. Kennedy Humiliates Another Biden Nominee Who Can’t Answer a Simple Question.

This makes no sense whatsoever, but then most goobermint doesn’t

State: ‘Government has no authority’ to impose penalties for not registering banned guns
Data shows 5,900 registered banned guns in Illinois after Jan. 1

(The Center Square) – The state of Illinois says “government has no authority” to impose criminal penalties for those not registering banned firearms.

Illinois State Police have updated the gun ban registration numbers to include those who registered after the Jan. 1 deadline. On top of the 29,357 individuals who registered before the deadline, 5,867 have registered since. The total of those registering before and after the deadline of 35,224 is 1.46% of the state’s more than 2.4 million Firearm Owners ID card holders.

Also updated is a list of how many individuals registered banned items per county. Cook County had the highest numbers of those registering at 6,364. Pope County had the fewest at five.

Lawsuits against the gun ban and registry continue in state and federal court.

In their response to a Fifth Amendment challenge to the state’s gun ban and registry in the Southern District of Illinois federal court, attorneys for the state say the right against self-incrimination isn’t violated by the registry.

The state’s lawyers argue the registration is a “voluntary benefit that exempts owners of certain” firearms from “otherwise applicable criminal penalties.” They also argue the “government has no authority to impose” penalties on those that don’t register and the idea someone would be prosecuted for what they file is “not real.”

“[T]he fanciful chain of events they have dreamed up has no serious chance of coming to fruition,” the filing said.

The filing is part of the ongoing litigation that plaintiffs’ attorney Thomas Maag predicts will get to the merits of the issues in the months ahead.

“It was clear from what [Judge Stephen McGlynn] said that he said that the lawyers should not plan on missing any breaks over the summer,” Maag told The Center Square. “That the judge wants to have a trial on the merits before June.”

Separately in state court last week, an Effingham County judge denied attorney Thomas DeVore’s attempt to reinstate his gun ban challenges that were vacated last year after the Illinois Supreme Court sided with the state in the case brought by state Rep. Dan Caulkins, R-Decatur.

DeVore said he’s taken the case to the appellate court.

“The judge just kicked the can down the road, he didn’t stop this case,” DeVore told The Center Square. “And the Illinois Supreme Court in their ruling in Caulkins did one good thing, is they gave me a roadmap on how I can win the arguments on equal protection.”

DeVore contends the state saying exempt classes of people, like active duty and retired police, security and prison guards, have specialized training is a “legal fiction.”

“If you break them down, you will find that almost none of them have a duty to protect the public order and the training,” he said.

All preliminary attempts in state and federal court at blocking the law from being implemented have not resulted in the law being overturned. It’s expected the issue will be taken up by the U.S. Supreme Court.

The Supreme Court Just Took a Side in the Biden Border Crisis

The Supreme Court sided with the Biden administration on Monday in a split decision that will allow federal agents to cut razor wire installed by Texas officials along the U.S.-Mexico border amid the worsening crisis created by President Biden’s policies.

The 5-4 decision granted an emergency appeal filed by the Biden administration to reverse an injunction from the Fifth Circuit Court of Appeals and now allows the feds to dismantle concertina wire while the lawsuit over Texas’ efforts to assume the duties of enforcing the international border — a responsibility that’s been abdicated by the Biden administration — moves ahead.

According to the Court’s order in Department of Homeland Security et al. v Texas:

The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application to vacate injunction.

Chief Justice John Roberts and Justice Amy Coney Barrett joined the liberal wing constituted by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson to grant the Biden administration’s appeal.

As Fox News Channel’s Bill Melugin noted on X following the Supreme Court’s ruling, this is “potentially setting up a significant state vs federal showdown.” That’s because most of the razor wire installed by state officials in Texas lies in Eagle Pass’ Shelby Park which was seized by Texas as it fights to secure the border amid Biden’s failures. Texas booted federal agents from the park, but the SCOTUS order means Border Patrol needs access to the park to cut the razor wire.

NH Supreme Court Affirms No Duty to Retreat When Acting in Self-Defense

It feels like it’s a rare occasion these days for any court with more than one judge to issue a unanimous decision, much less one that comes down on the side of our right to keep and bear arms, but that’s exactly what happened in New Hampshire on Monday as the state Supreme Court sided with a man who drew his gun to ward off an aggressor in a road rage incident, only to find himself charged (and convicted of a crime).

It was almost three years go when Joshua D. Shea’s was convicted on a single charge of criminal threatening with a deadly weapon, but the court has now thrown out that conviction after ruling that the judge overseeing the case erred by instructing the jury to consider whether Shea had the opportunity to retreat from the encounter. As the court pointed out in its ruling, lawmakers had removed any such duty to retreat from state statutes a decade earlier, and the judge had no basis to demand the jury consider the long-repealed law when weighing the evidence against Shea.

“After 2011, a person is justified in using deadly force when he reasonably believes that another person is about to use unlawful, deadly force against him, and he is not required to retreat if he is anywhere he has a right to be and was not the initial aggressor,” wrote Associate Justice Anna Barbara Hantz Marconi.

Shea claims he pulled his gun after another driver threatened to “beat his ass” following a close call on Route 28 in Epsom, according to the ruling’s recitation of the case. While the complainant claimed Shea pointed the gun at him, Shea testified he merely showed the gun to warn the other man off.

The incident started when the other man pulled his car in front of Shea’s truck as they drove on Route 28, forcing Shea to slam on his brakes and hit his horn. After the two men “exchanged middle fingers” they both pulled into a gas station parking lot off a traffic circle, according to the ruling.

In the gas station parking lot, according to Shea’s testimony at trial, the complainant began “aggressively swearing and saying he was going to . . . rip (Shea) out of [his] car.”

Shea further testified that the complainant said he would “beat (Shea’s) ass,” and asked the defendant to pull into the parking lot next door where there were no cameras.

At this point, Shea testified, the complainant began walking toward Shea’s truck and he was in serious fear for his safety. Shea testified he unclipped his pistol from its holster and warned the other driver he had a gun. Shea says he brought the gun up to his chest to show the man the gun, while the other man claimed Shea pointed the gun at him.

Despite the fact that no duty to retreat exists in New Hampshire law, Judge Andrew Schulman still informed the jury that one of the factors in the case was whether Shea “could have completely and safely left the area without any risk to himself or others.” In doing so, the judges ruled, Schulman went above and beyond what is allowed by law and contradicted what the state legislature has had to say about retreating in the face of danger; namely, that there is no requirement to do so if they were not the initial aggressor. Even when deadly force is not used, merely the display of a firearm to prevent the threat from escalating, the gun owner has no duty to retreat or present their back to the individual threatening to commit an act of violence against them.

I have to say, it’s nice to be able to cover a decision involving our right to self-defense that doesn’t include anti-gun judges trying to twist the law to suit their own purpose. Granted, four of the five justices on the court were appointed by Republican Gov. Chris Sununu, but even the lone justice named to the bench by Democrat John Lynch didn’t try to play any games with the decision. The five justices all made it clear that folks who aren’t the aggressor are not compelled to walk, run, or drive away instead of taking steps to lawfully protect themselves, and I’m glad that the court reiterated that fact in no uncertain terms. Hopefully Schulman’s jury instruction was just an aberration to begin with, but now there’s no excuse for any other Granite State judge to assert a duty to retreat that doesn’t exist in state law, and that’s a big win for those of us who believe in the human right of self-defense

Baldwin Facing Involuntary Manslaughter Charges After Grand Jury Indictment

A few months ago it looked like Alec Baldwin was going to avoid having to choose between a trial and a plea bargain for his role in the death of cinematographer Halyna Hutchins. Last April prosecutors dropped the original charge against the actor, citing new evidence that the gun in question might have been modified or malfunctioned, though they did say at the time that the “decision does not absolve Mr. Baldwin of criminal culpability and charges may be refiled.”

The investigation continued after the dismissal, and prosecutors received another analysis of the revolver by the Arizona company Forensic Science Services, which concluded that despite Baldwin’s claims that he never pulled the trigger of the gun before it discharged the round that killed Hutchins, “the trigger had to be pulled or depressed sufficiently to release the fully cocked or retracted hammer of the evidence revolver.”

Prosecutors recently brought that analysis before a grand jury, and now its members have indicted Baldwin on the same charge that was dismissed in 2023.

While the proceeding is shrouded in secrecy, two of the witnesses seen at the courthouse included crew members — one who was present when the fatal shot was fired and another who had walked off the set the day before due to safety concerns.

Baldwin, the lead actor and a co-producer on the Western movie “Rust,” was pointing a gun at cinematographer Halyna Hutchins during a rehearsal on a movie set outside Santa Fe in October 2021 when the gun went off, killing her and wounding director Joel Souza.

Baldwin has said he pulled back the hammer, but not the trigger, and the gun fired.

Baldwin’s not the only one facing charges, of course. Hannah Gutierrez-Reed, who was Rust’s armorer, has pleaded not guilty to involuntary manslaughter and evidence tampering in the case. Her trial was supposed to take place last month, but is now scheduled for February 21.David Halls, who was an assistant director as well as film’s safety coordinator, ended up taking a plea deal last March; pleading no contest to a single count of unsafe handling of a firearm in exchange for six months of probation, suspended.

Baldin’s attorneys offered a brief comment to Variety after the indictment was announced, telling reporters only, “We look forward to our day in court.” With the possibility of an 18-month prison sentence hanging over his head, my guess is that Baldwin and his legal team are also looking to see what kind of deal might be on the table before a trial takes place.

This case has been a hot mess from almost Day 1; with multiple prosecutors recusing or resigning from the case, charges filed, dropped, and now refiled, and conflicting reports about the gun in Baldwin’s hand when Hutchins was killed. Despite enough drama to serve as the inspiration for a whole season of Law & Order episodes, the case ultimately boils down to this: can prosecutors prove beyond a reasonable doubt that he acted negligently and without due care by violating some of the cardinal rules of gun safety on the set? They’re probably going to need more than a forensic report, so it will be interesting to see if either of the two crew members spotted at the courthouse where the grand jury met is willing to state that they actually saw Baldwin pull the trigger with Hutchins and Souza in front of him.

Speaking of the rules for gun safety, if nothing else, Baldwin’s legal woes are a good opportunity to remind him and everyone else of the four fundamentals:

  • Always keep your gun pointed in a safe direction
  • Keep your finger off the trigger until you’re ready to shoot
  • Know your target and what’s beyond
  • Treat all guns as if they are loaded at all times

Follow these rules (and I’d throw in the fifth rule of never mixing guns and alcohol/drugs as well) and you’ll be fine. Ignore them and it might not be just your own future you put in peril but your friends, family, range buddies, or even co-workers.

3 Gun Rights Cases Before the Supreme Court You Should Know About

Both sides of the Second Amendment debate will be watching the U.S. Supreme Court closely in 2024 as it applies the standards from previous decisions to new high-profile cases.

In the 2022 New York State Rifle and Pistol Association v. Bruen decision, the Supreme Court ruled that, to be constitutional, new gun laws must match the plain text of the Constitution and the “history and tradition” of the United States.
“The test that … applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding,” Justice Clarence Thomas wrote for the majority in June 2022.

One of the first major post-Bruen cases, United States v. Rahimi has court watchers curious about how Bruen will be applied. The high court heard oral arguments on Rahimi on Nov. 7, 2023.

Federal law currently bars those who are under domestic violence restraining orders from possessing guns. The Supreme Court in the Rahimi case will decide if it stays or goes.

Gun control advocates say the “text and tradition” standard of the Bruen decision, if applied in Rahimi, would allow violent abusers access to guns, resulting in the deaths of domestic violence victims.

“The Supreme Court must reverse this dangerous [Bruen] ruling,” Janet Carter, senior director of issues and appeals at Everytown Law, wrote on the Everytown for Gun Safety website. “Domestic abusers do not have—and should not have—the constitutional right to possess a firearm.”
Gun rights advocates say the Rahimi case has been mischaracterized as an attempt to arm violent criminals when it’s really about protecting society without preemptively suspending constitutional rights.

“It’s going to answer one issue, which is, do we as a country have a historical tradition of disarming people that we believe to be dangerous?” William Kirk, a Washington state-based lawyer who specializes in the Second Amendment, told The Epoch Times.

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MONUMENTAL DECISION: THIRD CIRCUIT RULES THAT THE SECOND AMENDMENT APPLIES THOSE 18 YEARS OF AGE AND OLDER

Today, Chief Counsel Joshua Prince secured a major victory for Second Amendment jurisprudence in Lara, et al. v. Commissioner of the Pennsylvania State Police, docket no. 21-1832, where the Third Circuit held that Pennsylvania’s banning of 18-to-21-year-olds from carrying firearms outside of their homes during a state of emergency is unconstitutional.

In so holding, the Third Circuit declared

The words “the people” in the Second Amendment presumptively encompass all adult Americans, including 18-to-20-year-olds, and we are aware of no founding-era law that supports disarming people in that age group.

In that vein, the court went on to emphasize that

It is undisputed that 18-to-20-year-olds are among “the people” for other constitutional rights such as the right to vote (U.S. Const. art. I, § 2; id. amend. XVII), freedom of speech, peaceable assembly, government petitions (id. amend. I), and the right against unreasonable government searches and seizures (id. amend. IV)…and there is no reason to adopt an inconsistent reading of “the people.”

In turning to whether the relevant historical timeframe is 1791 (ratification of the Second Amendment) or 1868 (ratification of the Fourteenth Amendment), the court declared

[That] to maintain consistency in our interpretation of constitutional provisions, we hold that the Second Amendment should be understood according to its public meaning in 1791.

In turning to the statutory sections at issue, the court acknowledged that

[t]aken together, §§ 6106, 6107, and 6109 – when combined with a state or municipal emergency declaration – have the practical effect of preventing most 18-to-20-year-old adult Pennsylvanians from carrying firearms

and that “that the Commissioner cannot point us to a single founding-era statute imposing restrictions on the freedom of 18-to-20-year-olds to carry guns.”

Accordingly, the Third Circuit remanded the issue with “instructions to enter an injunction forbidding the Commissioner from arresting law-abiding 18-to-20-year-olds who openly carry firearms during a state of emergency declared by the Commonwealth.”

Observation O’ The Day
“If you’re deferring to the agency’s interpretation of the law, you’re allowing the agency to be a judge in its own case,” said Mark Chenoweth, president of the New Civil Liberties Alliance, which is representing fishermen based in Rhode Island.

A little fish at the Supreme Court could take a big bite out of regulatory power.

WASHINGTON (AP) — Business and conservative interest groups that want to limit the power of federal regulators think they have a winner in the Atlantic herring and the boats that sweep the modest fish into their holds by the millions.

In a Supreme Court term increasingly dominated by cases related to former President Donald Trump, the justices are about to take up lower profile but vitally important cases that could rein in a wide range of government regulations affecting the environment, workplace standards, consumer protections and public health.

In cases being argued Wednesday, lawyers for the fishermen are asking the court to overturn a 40-year-old decision that is among the most frequently cited high court cases in support of regulatory power. Lower courts used the decision to uphold a 2020 National Marine Fisheries Service rule that herring fishermen pay for monitors who track their fish intake. A group of commercial fishermen appealed the decision to the Supreme Court.

Billions of dollars are potentially at stake in front of a court that, like the rest of the federal judiciary, was remade during Trump’s presidency by conservative interests that were motivated as much by weakening the regulatory state as social issues including abortion.

The 1984 decision in the case known colloquially as Chevron states that when laws aren’t crystal clear federal agencies should be allowed to fill in the details.

Supporters of limited government have for years had their sights set on the decision, which they say gives power that should be wielded by judges to experts who work for the government.

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Increasing Defendant’s Sentence Based on Lawful Gun Possession Is Forbidden

From Nelson v. State, decided today by the Florida Court of Appeal, in an opinion by Judge Jordan Pratt, joined by Judges Eric Eisnaugle and John Harris:

This appeal presents the question whether a trial court may rely on a defendant’s lawful firearm possession in sentencing him. We conclude that it may not. Courts deprive defendants of due process when they rely on uncharged and unproven conduct during sentencing, and this principle holds especially true where the uncharged conduct is the lawful exercise of a constitutional right….

Defendant had been convicted of selling marijuana and related charges. Then,

At the sentencing hearing, the court entertained argument from both Nelson and the State, with Nelson urging the court to impose 36 months, and the State urging the court to impose 87.23 months. During its argument, the State presented two photos of firearms found in Nelson’s home, noting that “a possible murder a couple of months ago that was probably related to the sale of cannabis” had occurred in Citrus County. However, the State did not argue that Nelson himself was in any way connected to the murder, and it conceded that it did not bring any firearm-related charges against him.

After hearing a brief rebuttal argument from Nelson’s counsel, the court announced his sentence. The court applied the discretionary trafficking enhancement and sentenced Nelson to 87.23 months of incarceration on counts 1 and 2 (to run concurrently).

Immediately after pronouncing this sentence, the court stated: “And what hurts you the most, Mr. Nelson, was … the photographs of the guns. They did not charge with those. I did not take that into account; but why you did this, I do not know.” The court then imposed three-year sentences on the remaining felony counts, with the sentences to run concurrently with the concurrent 87.23-month sentences….

Impermissible, the court said:

Trial courts generally enjoy wide discretion in sentencing convicted defendants within the range of sentences established by the Legislature. However, “an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence.”

Reliance on constitutionally impermissible factors deprives a defendant of due process and therefore constitutes fundamental error. As relevant here, “[a] trial court’s consideration of unsubstantiated allegations of misconduct in sentencing constitutes a due process violation.”

In short, just as “[d]ue process prohibits an individual from being convicted of an uncharged crime,” it also prohibits him from being sentenced for one based on “unsubstantiated allegations.” [The court cites various Florida state precedents throughout this paragraph. -EV]

This basic principle of due process carries no less force when the uncharged conduct is the lawful exercise of a constitutional right. Both the Florida and federal constitutions guarantee the fundamental, preexisting right to keep and bear arms….

At sentencing, the State presented no evidence to establish that Nelson’s possession of firearms within his home contravened the law. The State did not claim that any law prohibited Nelson from possessing firearms at the time of his arrest, much less point to such a law that would pass muster under the Second Amendment. Nor did it charge him with any firearm-related offense.

The State introduced no evidence establishing that Nelson possessed his firearms within the home to further his illicit activities or for any other unlawful purpose. Indeed, at sentencing, the State affirmatively conceded that it had not charged Nelson with armed trafficking, as the firearms were not found near the cannabis. Moreover, Nelson had no prior convictions.

In short, not only did the State decline to charge Nelson with a firearm-related offense; the State failed to argue, much less establish by evidence, that his firearm possession constituted anything other than the lawful exercise of his constitutional right to keep and bear arms “in defense of hearth and home.” …

The court’s statements indicate that it may have relied upon Nelson’s lawful firearm possession in imposing his sentence, and the State has failed to carry its burden to show otherwise. By declaring that “the photographs of the guns” were “[w]hat hurts [Nelson] most,” the court suggested that it weighed Nelson’s lawful firearm possession against him.

At best, the State [in arguing that the court didn’t consider the lawful firearms possession] has shown that the court made two contradictory statements: one that it took the firearm possession into account, and one that it did not. That showing does not suffice. “[W]e cannot ignore the nature and extent of the trial court’s discussion of irrelevant and impermissible factors during the sentencing hearing.”

“Because the court’s comments could reasonably be construed as basing the sentence, at least in part, [on impermissible factors], and because we cannot say that the sentence would have been the same without the court’s impermissible consideration of [that factor],” we must “vacate appellant’s sentence and remand for resentencing before a different judge.”

If due process prohibits a trial court from relying on “uncharged and unproven crimes” when pronouncing a sentence, then, a fortiori, it prohibits a trial court from relying on the lawful exercise of a constitutional right. The State has failed to carry its burden to show that the sentencing court did not rely, at least in part, on Nelson’s lawful exercise of his constitutional right to keep and bear arms.

Accordingly, we vacate Nelson’s sentences, remand these cases for resentencing, and direct the Chief Judge of the Circuit Court to reassign the cases to a different judge for the resentencing.

Victoria E. Hatfield O’Brien Hatfield Reese, P.A.) represents Nelson.

Bruen Strikes Again: Ban on Guns in Post Offices Tossed Out, Ruled Unconstitutional

Thanks to a decision by a federal judge in Florida on Friday, American citizens who are legally carrying concealed sidearms can no longer be barred from carrying inside a United States Post Office — buildings that are a quasi-part of the federal government and, in effect, the property of the American people.

 A federal judge in Florida on Friday ruled that a U.S. law that bars people from possessing firearms in post offices is unconstitutional, citing a landmark U.S. Supreme Court ruling from 2022 that expanded gun rights.

U.S. District Judge Kathryn Kimball Mizelle, an appointee of Republican former President Donald Trump in Tampa, reached that conclusion in dismissing part of an indictment charging a postal worker with illegally possessing a gun in a federal facility.

If there is anywhere, honestly, that the Bill of Rights applies, it should be in federal buildings and federal installations. Oh, there’s an argument to be made for barring carry in the Capitol, the White House, in courthouses, and so on – but those are places that are already secured by armed law enforcement (when they aren’t throwing the doors open for “insurrectionists.”) The post offices, not so much. Most post office buildings are pretty small, often crowded, and until now, “gun-free” zones. In other words, target-rich environments for would-be mass shooters.

This ruling is another victory for pro-Second Amendment activists, and once more, we have NY State Rifle & Pistol Association v. Bruen to thank for it.

Mizelle said that charge violated Emmanuel Ayala’s right to keep and bear arms under the U.S. Constitution’s Second Amendment, saying “a blanket restriction on firearms possession in post offices is incongruent with the American tradition of firearms regulation.”

She declined to dismiss a separate charge for forcibly resisting arrest. Ayala’s lawyer and a U.S. Justice Department spokesperson did not respond to requests for comment.

The decision marked the latest court decision declaring a gun restriction unconstitutional following the conservative-majority Supreme Court’s June 2022 ruling in New York State Rifle & Pistol Association v. Bruen.

Things in the last year or two sure seem to be swinging in favor of the Second Amendment, although the pro-gun community should not take any time to rest on its laurels.

Now that this ruling is in place – assuming it goes nationwide and survives any possible appeal to the Supreme Court – it would be interesting to see it as a precedential springboard into other federal facilities, such as (especially) military bases. Military bases in particular should be removed from the federal “gun-free zone” list; military members are in the profession of arms, and they are charged with enormous responsibility. It’s common to have an 18-year-old soldier, when on duty, handling and firing a weapon as formidable as a .50 caliber machine gun, and yet is prohibited from possessing a personal firearm on base. That makes little sense; in light of several publicized incidents on military bases in recent years, it would make more sense to have every officer and non-commissioned officer issued a sidearm to be carried loaded at all times when in uniform.

Post offices, granted, are a different kettle of fish. But now, at least, this decision recognizes that the Second Amendment rights of the citizenry are not negated by some bureaucrat mandating that every such building be a free-fire zone for would-be mass shooters. Self-defense is a fundamental human right, and now that right has been confirmed yet again.

SCOTUS denies one appeal of assault weapons ban while another waits in the wings

SPRINGFIELD – The U.S. Supreme Court has denied one request to review the Illinois assault weapon ban, but many believe the court is more likely to take up another challenge to the law later this year.

The high court turned down a request by Republican State Rep. Dan Caulkins, of Decatur, to hear an appeal of the case he lost before the Illinois Supreme Court in August.

In his appeal, Caulkins argued that he was denied a fair hearing at the state supreme court because two of the state justices had received large campaign contributions from Democratic Gov. JB Pritzker, who signed the assault weapon ban into law.

Caulkins also claimed the law is unconstitutional because it allows some people to keep their assault weapons if they acquired those guns before the ban took effect.

The justices at the U.S. Supreme Court gave no reason for declining to hear Caulkins’ appeal. But many people expect the court to take up a separate challenge to the law from the National Association for Gun Rights, which argues more broadly that the ban violates the Second Amendment of the U.S. Constitution.

The 7th Circuit Court of Appeals ruled against the gun rights group in November. The group is expected to file its appeal with the U.S. Supreme Court within the next several weeks.

 

ROCKY MOUNTAIN GUN OWNERS FILE LAWSUIT CHALLENGING COLORADO’S “GHOST GUN” BAN

Rocky Mountain Gun Owners [RMGO], Colorado’s only no-compromise gun rights lobby, announced Monday that they have filed a federal lawsuit challenging the constitutionality of Colorado’s newly enacted homemade firearm ban, Senate Bill 23-279. The federal court lawsuit aims to overturn the ban, which infringes on Second Amendment rights.

Three members of Rocky Mountain Gun Owners, along with the National Association for Gun Rights, joined as plaintiffs in the lawsuit challenging the constitutionality of the ban on the ground that it infringes their right to keep and bear arms.

“This law is an outright assault on the constitutional rights of peaceable Coloradans. It’s not just an overreach; it’s a direct defiance to our Second Amendment freedoms,” Rhodes stated. “We believe that this law, much like others that attempt to restrict gun rights, will not stand up under scrutiny, especially in light of the recent Supreme Court decision in Bruen.”

The lawsuit specifically references the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, which set a precedent that any gun control law must be consistent with the nation’s history and tradition of firearms regulation. Bruen prohibits judges from giving any credence to government arguments that the benefits of a firearm regulation outweigh the burden on citizen’s constitutional rights.

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‘historical tradition’ my foot. Show me where there were any historical restrictions on accessories in 1791 or 1866. The judges who hate RKBA will pretzel a ruling anyway they can.

Gun Silencer Regulations Are Held Valid Under Second Amendment

A federal law requiring registration of firearm silencers is an allowable restriction under the Second Amendment, a Louisiana federal judge ruled.

The US District Court for the Western District of Louisiana rejected Brennan James Comeaux’s motion to dismiss a two-count indictment charging him with possessing five silencers that weren’t registered to him and weren’t identifiable by serial number, in violation of the National Firearms Act. Comeaux argued the law violates his Second Amendment right to possess firearms.

The federal law is supported by the historical tradition of regulating gun silencers, US District Judge David C. Joseph wrote