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Legal updates 4-2-2013
New law review article: “Florence, Atwater, and the Erosion of Fourth Amendment Protections for Arrestees”
Julian Simcock, Note: Florence, Atwater, and the Erosion of Fourth Amendment Protections for Arrestees, 65 Stan. L. Rev. 599 (2013): If there is an animating imperative behind the Supreme Court’s decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip searching arre
W.D.Mo.: The emergency aid entry here, by all accounts, was in good faith
The record supports the conclusion that there was a bona fide emergency justifying the entry into the house. The defendants weren’t under investigation for drugs before the entry. [Truly applying good faith to a warrantless entry.] United States v. Brandwein, 2012 U.S. Dist. LEXIS 187273 (W.D. Mo. M
OH2 warns counsel not to be candid about defense arguments lest they use it against them
Defendant voluntarily consented to the searches. Counsel’s attempt to be candid about the lack of strength of his argument was seized on by the appellate court as a near waiver, which it wasn’t. [Sometimes you just can’t trust appellate courts.] State v. Pugh, 2013 Ohio 1238, 2013 Ohio App. LEXIS 11
OH6: A warrant for a computer implies that its contents were subject to seizure
A warrant for a computer implies that its contents were subject to seizure. “The search of the contents of the computer is implied by the use of the phrase ‘computers and all related electronic storage devices.’ This makes sense, since oftentimes a computer is of little or no evidentiary value apart
Maryland: Senate Bill 281 Passes House Committees
Last Friday, Senate Bill 281 was considered and passed in the House Judiciary Committee by a 14-8 vote and in the House Health and Government Operations Committee by a 13-10 vote. SB 281 was reported by these committees with amendments and goes to the House floor TOMORROW for a final vote. If pass
Montana: Contact Governor Bullock to Support Senate Bill 145 (CWP Confidentiality); Other Pro-Gun Bills Pending in Senate; Governor Vetoes Pro-Gun Bills
Senate Bill 145, introduced by state Senator Frederick Moore (R-20), provides important confidentiality and privacy protection for concealed weapon permit holders. SB 145 passed in the state Senate by a 37 -13 vote on January 31 and passed in the state House by an 88-9 vote on March 13. It is now
Utah: Ominous Campaign Disclosure Bill Now Before Governor
House Bill 43, a measure aimed at suppressing political speech by membership organizations such as the NRA, received the final approval in both the Utah House and Senate and is now awaiting Governor Gary Herbert’s (R) approval. This fatally flawed bill poses a grave risk to freedom of speech in Uta
Indiana: NRA-Backed Pro-Hunting Reform Bill Passes Senate
Today, the Indiana Senate voted 40-9 to advance House Bill 1563. Sponsored by state Representative Sean Eberhart (R-57) and state senators Carlin Yoder (R-12) and Richard Young (D-47), HB 1563 would repeal Indiana’s current prohibition on the use of a suppressor while hunting and strengthen Indiana
Nevada: Three Gun Bills Scheduled for a Hearing this Wednesday, April 3
Assembly Bill 234, introduced by Assemblyman William Horne (D-34), is an all-out attack on the Second Amendment for imposing an excise tax on every Nevada firearms dealer who sells firearms or ammunition in the state. Dealers will be required to charge a $25 tax on every firearm and 2 cents on each
Virginia: General Assembly to Vote on Pro-Gun Amendment to Senate Bill 1378 this Wednesday, April 3
This Wednesday, April 3, the Virginia General Assembly will reconvene for one day to consider amendments to Senate Bill 1378 submitted by Governor Bob McDonnell (R).
WaPo.com: Fourth Amendment creates new fault lines
WaPo.com: Fourth Amendment creates new fault lines by Robert Barnes: The oral arguments last week on same-sex marriage showed clearly the Supreme Court’s familiar fault line between liberal justices nominated by Democratic presidents and conservatives named by Republicans. But a decision that got
D.S.D.: Cell phone properly seized incident to juvenile prostitution arrest
Defendant was accused of transporting a juvenile for prostitution. An undercover officer saw the screen of his Blackberry and saw a reference to “bring[ing] condoms.” There was probable cause to seize the cell phone incident to his arrest. The cell phone was later searched with a warrant. United Sta
D.Ariz.: Using a co-conspirators’ code word at the door to get defendant to open it was not unreasonable under the Fourth Amendment
Using a co-conspirators’ code word at the door to get defendant to open it was not unreasonable under the Fourth Amendment. It was also not consent obtained by deception. United States v. Poom-Medina, 2013 U.S. Dist. LEXIS 45469 (D. Ariz. March 29, 2013). A protective weapons search in this case
CA5: Two day warrantless search of tractor-trailer with PC was reasonable
There was probable cause for the stop and search of defendant’s tractor-trailer. The fact contraband wasn’t found in the first three hours didn’t cause the PC to dissipate. The truck was moved and searched for two days. Given there was probable cause, the two day search of the truck was reasonable.
S.D.Ind.: IU RAs can enter dorm rooms for announced “health and safety inspections”
Indiana University Resident Advisors in the dormitories conducted a quarterly announced “health and safety inspection” of dorm rooms, and a small quantity of marijuana was seen in plaintiff’s room. The RAs were not “state actors.” A campus police officer came when called, and his warrantless entry w
S.D.Ohio: While Ohio law requires PC to search a parolee, the Fourth Amendment doesn’t
While Ohio law requires PC to search a parolee, the Fourth Amendment doesn’t in federal court. United States v. Hill, 2013 U.S. Dist. LEXIS 45754 (S.D. Ohio March 29, 2013): => Read more!
50 years of the Sixth Amendment Right to Counsel
50 years ago a drifter in Florida who was illiterate yet very bright wrote a lengthy, grammatical flawed letter in pencil to the United States Supreme Court. He was upset after being convicted of a misdemeanor subsequent to being denied a court-appointed attorney. See http://en.wikipedia.org/wiki/Gideon_v._Wainwright. His state of conviction was Florida, and Florida did not provide for court-appointed counsel in misdemeanors even though misdemeanors carried jail time. The net result was that the Court found that the Sixth Amendment Right to Counsel is part of our due process of law rights in the Fourteenth Amendment and is therefore applicable to the States. From that day onward all states had to provide counsel to indigent defendants.
This morning my church men’s group discussed the right to counsel. I shared one of my favorite Scriptures, Job 16:19 (NIV): “Even now, behold, my witness is in heaven, and he who testifies for me is on high.” Seems to me that if God advocates for all men on the spiritual realm, then the state should want to provide defense to indigents for the sake of standing up for the Constitution.
What’s my point? Simple. I serve on the Kansas State Board of Indigent Defense Services. In Kansas court appointed counsel receive just $62.00 per hour. Think about that number. If you hire a lawyer to defend you you’ll probably pay in excess of $200 per hour, yet poor people get counsel paid less than a third of that. Do you think they get equivalent defense? If you do, you are delusional. In contrast, a right not guaranteed under the Federal Constitution, “sufficient funding” for government education in Kansas, has resulted in government schools being told that $15k per student isn’t enough. Hmm. What right is more important? One is in the Bill of Rights. The other is not. Our state will give government schools whatever they want, yet indigents, exercising a constitutionally protected right, are stuck with scraps. Seems to me that the time will come when the U.S. Supreme Court will rectify this disparity, and justice will finally be served.
“So the poor have hope,
and injustice shuts her mouth.” –Job 5:16
Legal updates 3-6-2013
S.D.Ind.: Court allows full protective sweep of house on serving arrest and search warrant for the person in his house
The police here had a search warrant for defendant’s person, so they waited for him to get inside his house to execute it [how convenient for a protective sweep of the house]. They also knew of comings and goings from the house. The court refused to suppress the protective sweep of the whole house o
The police here had a search warrant for defendant’s person, so they waited for him to get inside his house to execute it [how convenient for a protective sweep of the house]. They also knew of comings and goings from the house. The court refused to suppress the protective sweep of the whole house o
Sponsor of bill to test all welfare recipients for drugs supports RSC “constitutionality pledge”
Yesterday I posted this: Raw Story: Congressional bill requires welfare recipients to sign waiver of their Fourth Amendment rights. The bill’s author is Rep. Stephen Fincher of Tennessee. I Googled him and in the first page of articles was this: Roll Call: RSC Takes Measure of Constitutionality P
Connecticut: Join NRA and Other Second Amendment Supporters for a Lobby Day to Protect Your Rights on March 11
On Monday, March 11, the National Rifle Association, in association with the National Shooting Sports Foundation, the Coalition of Connecticut Sportsmen, and the Connecticut Citizens Defense League, will host a Lobby Day at the state Capitol in Hartford. Your presence is needed to communicate with
Grits for Breakfast: Cell phone location tracking by government: How it’s done:
Grits for Breakfast: Cell phone location tracking by government: How it’s done: => Read more!
BLT: Antoine Jones of GPS case fame gets 6-6 hung jury; no GPS used against him
Blog of the Legal Times: Judge Declares Mistrial in Drug Case at Center of Landmark Supreme Court Ruling => Read more!
Virginia: Loudoun County Board of Supervisors to Consider Pro-Gun Ordinance Tomorrow
The Loudoun County Board of Supervisors held a public hearing on February 13 to discuss a proposed pro-gun amendment to Chapter 684 of the county’s Codified Ordinances, Weapons and Explosives, which regulates the lawful use and discharge of firearms within the unincorporated areas of Loudoun County.
Alabama: Omnibus Firearms Reform Bill Passes Senate Committee
Today, the NRA-supported omnibus firearms bill, Senate Bill 286, was considered in the Senate Judiciary Committee. After a strong summary was given by the bill sponsors, state senators Scott Beason (R-17) and Roger Bedford (D-6), the Senate Judiciary Committee passed SB 286 by a 7 to 1 vote.
Colorado: Sweeping Gun Control Legislation Passes Senate Committees
Yesterday, despite overwhelming public opposition present, the Senate Judiciary Committee and the Senate State, Veterans, and Military Affairs Committee voted to advance the most sweeping and extreme package of Second Amendment-infringing legislation in Colorado history.
South Dakota: Bill Allowing Armed School Security Sent to Governor
A bill authorizing local school boards to allow teachers, staff or volunteers to be armed has cleared the state legislature and is headed to Governor Dennis Daugaard (R). House Bill 1087, introduced by state Representative Scott Craig (R-33) and cosponsored by more than 25 other legislators, passed
Kentucky: House Judiciary Committee Passes Right-to-Carry Reform Bill
Today, Senate Bill 150 passed in the Kentucky House Judiciary Committee. Sponsored by state Senator Brandon Smith (R-30), SB 150 is critical to your inherent right to self-defense as it eliminates several discriminatory and arbitrary provisions in Kentucky’s current concealed carry laws that may pr
Arizona CCW Permit Holders No Longer Welcome in Nevada
On February 28, the Nevada Sheriffs’ and Chiefs’ Association (NvSCA) voted unanimously to cease recognition of Arizona’s concealed weapon permits (CCW), effective immediately.
Arkansas: Faculty Carry Signed into Law, Reminder to Take Action on Other Important Self-Defense Legislation
On March 1, Governor Mike Beebe (D) signed House Bill 1243 into law. As introduced by state Representative Charlie Collins (R-84), HB 1243 sought to allow staff and faculty of a public university, public college or community college, to carry a concealed handgun in the buildings of the institutions
New Mexico: Bill to Criminalize the Private Transfer of Firearms to be Heard in Senate Public Affairs Committee Today
House Bill 77 has been added to the Senate Public Affairs Committee agenda for today, and will likely be heard after 6:00 p.m. If able, please make plans to attend this important public hearing to voice your opposition to HB 77. The Senate Public Affairs Committee will meet in Room 321 in the stat
The Fourth Circuit takes the Charlotte-Mecklenburg PD back to training day on the Terry doctrine
This is a fascinating case on reasonable suspicion calculus and what an appellate court is expected to do in judicial review, rather than rubber stamping the trial court’s conclusion reasonable suspicion existed. Two guys standing around, one with a prior, doesn’t support a stop of both, let alone t
Daily Kos: While Millions Hotly Debate the Second Amendment, the Fourth Amendment is Dying a Quiet Death
Daily Kos: While Millions Hotly Debate the Second Amendment, the Fourth Amendment is Dying a Quiet Death by Richard Riis: => Read more!
Montana: Several Pro-Gun Bills Advance
Several pro-gun bills have passed in the state House of Representatives and now advance to the Senate.
New Hampshire: Important Firearms Legislation to be Heard in House Committee Tomorrow
An executive session is scheduled for tomorrow, February 28 at 10:00 AM by the House Criminal Justice and Public Safety Committee.
North Dakota: State House Passes Multiple Pro-Gun Bills
This week, several bills of importance to gun owners, sportsmen and supporters of the Second Amendment passed in the state House:
Nevada: Senate Advances Concealed Carry Improvement Bill
Today, Senate Bill 76, that would improve the concealed carry weapon (CCW) firearms qualification process, passed in the Senate Judiciary Committee.
Oregon: Several New Anti-Gun Bills Introduced and Must be Defeated
Multiple measures that will infringe on our Second Amendment rights have been introduced in Oregon and your action is needed.
Montana: Several Pro-Gun Bills Advance
Several pro-gun bills have passed in the state House of Representatives and now advance to the Senate.
Kansas: Contact Your State Legislators in Support of Pro-Gun Reforms
The Kansas House Federal and State Affairs Committee considered two pro-gun reforms this week that would expand the rights of law-abiding gun owners. House Bill 2055, introduced by the House Federal and State Affairs Committee, would allow law-abiding citizens to carry a concealed handgun for self-
Virginia: Loudoun County Board of Supervisors to Consider Pro-Gun Ordinance on March 6
The Loudoun County Board of Supervisors held a public hearing on February 13, to discuss a proposed pro-gun amendment to Chapter 684 of the county’s Codified Ordinances, Weapons and Explosives, which regulates the lawful use and discharge of firearms within the unincorporated areas of Loudoun County
NYTimes: Justices Wrestle Over Allowing DNA Sampling at Time of Arrest
One of my favorite quotes about the Fourth Amendment is Frankfurter’s 1948 comment “[W]here one comes out on a case depends on where one goes in.” So, too, of DNA testing arrestees. See NYTimes: Justices Wrestle Over Allowing DNA Sampling at Time of Arrest by Adam Liptak: => Read more!
LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all
LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all by Allison B. Margolin (Feb. 22, 2013) (sub. req.): => Read more!
GA: Validity of stop objection didn’t preserve the lack of PC argument on appeal
Objection in the trial court to the stop of the car didn’t include lack of probable cause for issuance of the search warrant for the car, so that issue is waived on appeal. Thomas v. State, 2013 Ga. LEXIS 144 (February 18, 2013).* LPN reader alert provides probable cause for a stop. Rodriguez v. St
Maryland Update: Vote on Governor’s Gun Control Scheme This Thursday – Your Action Needed NOW to Protect Your Rights
This Thursday, the Senate Judicial Proceedings Committee is set to vote on Senate Bill 281 (more information on this bill can be found here). It is likely that this sweeping anti-gun legislation will be reported out by this Committee and voted on by the entire Maryland Senate at the end of this wee
Kentucky: Senate Committee to Act on NRA-Backed Bill Tomorrow
NRA-backed Senate Bill 150, sponsored by state Senator Brandon Smith (R-30), will be considered by the Senate Veterans, Military Affairs and Public Protection Committee tomorrow at noon. This bill is critical to your inherent right to self-defense as it eliminates several discriminatory and arbitra
Washington: Bill to Criminalize All Private Firearms Transfers Goes to House Floor
Today, House Bill 1588, legislation that could criminalize private sales of firearms and lead to handgun registration, was amended and reported by the House Judiciary Committee by a 7-6 vote. HB 1588 is now headed to the House Rules Committee before going to the floor of the state House of Represen
Wyoming: Governor Signs Bill Repealing State Prohibition of Hunting With Suppressors
Wyoming Governor Matt Mead (R) signed into law Senate File 132, legislation introduced by Senator Ogden Driskill (R-01) that allows the use of suppressors for hunting all game in the Cowboy State starting on July 1, 2013. Thanks to passionate input from gun owners and sportsmen, the Wyoming House o
Wyoming: Governor Signs Bill Repealing State Prohibition of Hunting With Suppressors
Wyoming Governor Matt Mead (R) signed into law Senate File 132, legislation introduced by Senator Ogden Driskill (R-01) that allows the use of suppressors for hunting all game in the Cowboy State starting on July 1, 2013. Thanks to passionate input from gun owners and sportsmen, the Wyoming House o
Additional Pro-Gun Measures Introduced in Texas
Previously, we reported on approximately six NRA-backed issues filed so far in the 2013 Regular Session of the Texas Legislature. A few more bear mentioning with several weeks left until the bill filing deadline the first week of March. The NRA-ILA will keep you posted as to which committees these
Cato: “Clever Hans vs. the Fourth Amendment”; a comment on Harris
Cato: Clever Hans vs. the Fourth Amendment by Julian Sanchez: In the early 1900s, the German public was fascinated by a mathematical Mr. Ed named Clever Hans, an Orlov Trotter horse that seemed to be capable of counting, doing basic arithmetic, and even solving elementary word problems—which, lacki
Minnesota: Senate Judiciary Committee to Begin Gun Control Hearings This Thursday
This Thursday, February 21 at noon, the Senate Judiciary Committee will begin hearings in Room 15 of the state Capitol on dangerous anti-gun measures that would infringe on our Right to Keep and Bear Arms. This committee will also meet from 6:00-9:00 p.m. on Thursday evening for public testimony on
Hawaii: SB 69 Hearing Tomorrow, February 20 – Your Help Needed to Stop this Extremist Anti-Gun Measure
Senate Bill 69 started off as a Gun ”Buyback” bill, but has evolved into a “Gun Safety and Education” bill, and by further amendments has morphed into a gun owner harassment/mental interrogation bill. SB 69 will be heard tomorrow, February 20, by the Senate Ways and Means Committee (WAM) at 9:45 A
Utah: Three Pro-Gun Bills to be Heard Tomorrow
Tomorrow, the House Judiciary Committee is scheduled to hear House Bill 76, sponsored by state Representative John Mathis (R-55). HB 76 would allow any person, 21 years of age or older who can lawfully own and possess a firearm, to carry it concealed without a permit. This hearing is scheduled to b
Maryland Update: Vote on Governor’s Gun Control Scheme This Thursday – Your Action Needed NOW to Protect Your Rights
This Thursday, the Senate Judicial Proceedings Committee is set to vote on Senate Bill 281 (more information on this bill can be found here). It is likely that this sweeping anti-gun legislation will be reported out by this Committee and voted on by the entire Maryland Senate at the end of this wee
Maine: Temporary Concealed Handgun Permit Confidentiality Legislation Enacted Today
Legislative Document 576, temporary emergency Concealed Handgun Permit (CHP) confidentiality legislation, was enacted in Augusta today. LD 576, sponsored by state Senator Troy Jackson (D-35), passed overwhelmingly by a 33-0 vote in the state Senate and by a 129-11 vote in the state House of Represe
New Mexico: House Committee to Hear HB 402, New York-Style Gun and Magazine Ban, this Thursday, February 21!
The House Consumer and Public Affairs Committee will hold a public hearing on House Bill 402 this Thursday, February 21, at 1:30 pm (or upon adjournment of the House) in Room 315 of the State Capitol. Please attend this hearing and voice your opposition to HB 402. If this measure advances from thi
Washington State SB 5737 sponsor claims assault weapon inspection a “mistake”
Washington State SB 5737 (posted here) sponsor claims assault weapon inspection a “mistake” that shouldn’t have been in there. See Dems Sponsor Bill To Violate Fourth Amendment Rights Of Gun Owners. Mistake as in: Some scribe was supposed to have deleted that before it got submitted? Or, a slip of
SCOTUS: Bailey v. United States: Detentions permitted under Summers have to be in immediate vicinity
Bailey v. United States, 2013 U.S. LEXIS 1075 (Feb. 19, 2013) decided by SCOTUS: Detention of a person during execution of a search warrant has to be in the immediate vicinity of the place to be searched, and Bailey wasn’t in the vicinity. If the government can justify it under Terry, they get a sho
SCOTUS: Florida v. Harris: State proved dog was reliable; alert was PC
Florida v. Harris, 2013 U.S. LEXIS 1121 (Feb. 19, 2013), decided by SCOTUS. The state proved the drug dog reliable, so its alert is probable cause. Syllabus: Officer Wheetley pulled over respondent Harris for a routine traffic stop. Observing Harris’s nervousness and an open beer can, Wheetley soug
Chicago Police Superintendent McCarthy crosses the line
Chicago’s embattled police superintendent dug himself deeper into a pit of controversy today by claiming that lawful firearm owners are agents of political corruption. Appearing on a Chicago Sunday morning talk show, superintendent Garry McCarthy expressed his conviction that firearm owners who lob
West Virginia: Emergency Powers Protection Legislation Heads to House Floor, Multiple Pro-Gun Bills Introduced
Yesterday, NRA-supported House Bill 2471, sponsored by House Speaker Rick Thompson (D-19), was reported with a substitute by the House Judiciary Committee by a unanimous voice vote. HB 2471 seeks to prohibit the restriction of the lawful possession, use, carrying, transfer, transportation, storage o
Woman saves sister from robbery and assault, The St. Louis Post-Dispatch, St. Louis, Mo. 02/10/13
Sisters Debi Keeney and Donna Carlyle were at home in Highland, Mo. when a man forced his way inside the apartment as Keeney returned from smoking a cigarette outside. The criminal then threw Carlyle to the floor and began choking her and demanding money. Keeney recalled, “All I could see was Donna’
Colorado House clears requiring gun buyers to pay for background checks
A measure requiring individuals to pay a fee for their own background checks passed on a voice vote late Friday night on floor of the Colorado House. House Bill 1228 was the third of four Democratic gun bills debated in day long marathon floor session at the state Capitol.
Colorado: Biden lobbies House Democrats as they advance gun control bills
A package of gun control measures won initial approval in Colorado’s Democratic controlled House Friday night, with Vice President Joe Biden personally phoning four lawmakers from his ski vacation in the state to speed along the emotional debate.
Missouri: House Democrats propose semi-auto ban
Missouri’s gun friendly culture isn’t stopping some House Democrats from trying to purge assault weapons from the state.Legislation backed by several St. Louis area lawmakers would require gun owners to surrender or destroy their assault weapons within 90 days of the measure’s passage. The proposed
Maine: Governor proposes bill to protect privacy Right-to-Carry permit holders
Maine Gov. Paul LePage says he’s submitting a bill to temporarily block the release of concealed firearms permit holders’ names, addresses and dates of birth to the public.
Washington firearms manufacturer ends sales to New York in wake of new gun law
In response to the passage of New York’s sweeping new gun law, a Washington state based firearms manufacturer has decided to stop selling their products in the Empire State.Olympic Arms, a manufacturer of semiautomatic rifles and AR 15 style firearms, announced Tuesday it will no longer be doing bus
Connecticut: State Lawmakers Seek to Mandate Discriminatory Liability Insurance for Firearms Owners
Anti-gun lawmakers on the Insurance and Real Estate Committee voted to draft a bill on February 14 to mandate liability insurance for firearms owners. While no specific language has been offered yet, a public hearing could come as early this week.
Obama’s real gun control aim
Chicago is a dangerous town, but gun control hasn’t made it better. The city forbids the law abiding from having guns, leaving the bad guys to rule the streets. The result is one of the highest murder rates in the country. President Obama’s plan isn’t to reverse from a failed course, but to apply fe
David Keene, gentleman who sticks to his guns
For the leader of what may be the most polarizing interest group in America, National Rifle Association chief David Keene is a genial hard liner.He loves guns. He loves politics. He loves talking even with journalists, who are viewed in gun circles as overwhelmingly hostile to their cause.
Crime soared with Massachusetts gun law
In 1998, Massachusetts passed what was hailed as the toughest gun control legislation in the country. Among other stringencies, it banned semiautomatic “assault” weapons, imposed strict new licensing rules, prohibited anyone convicted of a violent crime or drug trafficking from ever carrying or own
Washington: Misstep in gun bill could defeat the effort
Forget police drones flying over your house. How about police coming inside, once a year, to have a look around?As Orwellian as that sounds, it isn’t hypothetical. The notion of police home inspections was introduced in a bill last week in Olympia.
E.D.Tenn.: Search of NCIC database not a Fourth Amendment issue
There is no Fourth Amendment right to protection against searching information in NCIC. A warrant on defendant was basis for his stop. United States v. Cobb, 2012 U.S. Dist. LEXIS 186155 (E.D. Tenn. December 27, 2012): Without providing any legal support for this argument, Defendant Campbell insist
CA11: Borrower of vehicle can challenge GPS tracking of his use of vehicle
Following the analogous United States v. Hernandez, 647 F.3d 216, 219-20 (5th Cir. 2011), defendant has standing to challenge GPS tracking of a vehicle he legitimately borrowed when he was in control, but not otherwise. United States v. Gibson, 2013 U.S. App. LEXIS 3322 (11th Cir. February 14, 2013)
D.Ore.: FISA’s “significant purpose” requirement satisfies Fourth Amendment
FISA’s “significant purpose” requirement has been upheld by several circuits under the Fourth Amendment. The PATRIOT Act amendments have also been upheld. This court doesn’t disagree. United States v. Mohamud, 2012 U.S. Dist. LEXIS 186093 (D. Ore. May 7, 2012).* A commercial building that was the s
E.D.N.C.: Rifle case, a “single purpose container” that revealed its contents, could be searched without warrant
Defendant had a reasonable expectation of privacy in zipped and closed duffle bags stored by permission at a friend’s house. This was reasonable under our societal understandings. See United States v. Waller, 426 F.3d 828 (6th Cir. 2005). The closed and locked nature of the containers showed his exp
Colorado: House Passes Most Sweeping Anti-Gun Legislation in Recent History
In the face of tens of thousands of gun owners, sportsmen and shooting enthusiasts, anti-gun zealots leading the rights-infringing charge in Denver passed a package of anti-gun bills in the state House seeking to undermine the Second Amendment in Colorado.
Am.Crim.L.Rev. Blog: “So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees”
Am.Crim.L.Rev. Blog: So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees by Regan Gibson, ACLR Featured Blogger: On February 26, 2013, the Supreme Court will hear argument in Maryland v. King, and will determine the constitutionality of a Maryland statu
FL5: Defendant not entitled to be Mirandized before consent to search his person was sought during a traffic stop
Defendant was not entitled to be Mirandized before consent to search his person was sought during a traffic stop. State v. Thomas, 2013 Fla. App. LEXIS 2415 (Fla. 5th DCA February 15, 2013).* Defendant was detained for consuming alcohol in public. His admission he was armed justified a patfrisk for
OH8: USMs did not show reasonable basis to believe fleeing fugitive in defendant’s home
The USMs were looking for a fleeing violent fugitive who cut off an ankle monitor, and they ended up at defendant’s house. There was no showing at all of a reasonable belief that the fugitive was even in defendant’s residence (Steagald). There was allegedly “a tip,” but no factual basis at all was g
OH2: Precedent permitting hot pursuit entry into home for fleeing mere traffic stop should be overruled
Hot pursuit into a home of somebody fleeing a mere traffic offense is permitted by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 2002 Ohio 1625, 765 N.E.2d 330, but this court sure doesn’t like it. State v. Lam, 2013 Ohio 505, 2013 Ohio App. LEXIS 442 (2d Dist. February 15, 2013): [*P20] The
IA: People in apartment talking loud about drugs and what to do with the cops outside was exigency
People inside the apartment “discuss[ing] their concern about police presence in the building” including one saying he had drugs on him was exigency for entry. State v. Floyd, 2013 Iowa App. LEXIS 229 (February 13, 2013): Here, in contrast, the information relayed to police officers indicated a lar
TN: Matching description of car fleeing burglary was RS for stop
Officers had reasonable suspicion to stop defendant in a car that matched one reported in a burglary near the time of the burglary speeding away from the area of the burglary. State v. Rogers, 2013 Tenn. Crim. App. LEXIS 124 (February 13, 2013).* Defendant was stopped for speeding, and the odor of
CA4: Report of live grenade in house still wasn’t exigency without knowing more
The mere presence of an alleged live grenade, without more, did not justify exigency for a police entry into defendant’s house. In fact, it turned out that the grenade was last seen by defendant’s wife, the reporter to them, two years earlier, although the police didn’t know that at the time. Se
D.Ariz.: One doesn’t need to be a police target for a search warrant to issue for evidence
Defendant contended that he was not a suspect in a crime, but a witness, therefore a search warrant could not issue for his place. To the contrary, a person can be innocent of crime but have evidence subject to a search warrant (Zurcher). United States v. Kelly, 2013 U.S. Dist. LEXIS 20949 (D. Ariz.
N.D.Ga.: Search warrant for drugs and records at a business includes owner’s attache case
Search warrant for drugs and records of a business included defendant’s attache case that was there when the warrant arrived. The warrant was conceded to be otherwise valid. United States v. Votrobek, 2012 U.S. Dist. LEXIS 185962 (N.D. Ga. June 25, 2012).* Defendant’s stop on a motorcycle was for s
W.D.Va.: No reasonable expectation of privacy in an unlocked vehicle parked off one’s property
Because the defendant’s truck was not on the property when the warrant for the property was issued, it wasn’t subject to the warrant. However, the truck was left unlocked and with the key in the ignition, and the court finds that shows a lack of a “reasonable expectation of privacy” in the truck. Un
Colorado: Anti-Gun Measures Eligible for a Final Vote This Monday
Yesterday, four anti-gun measures passed their second reading in the Colorado House of Representatives and are now eligible for a final vote this Monday at 10:00 a.m. Your firearms freedoms could be stolen away soon if you do not act now.
Maine: Your Immediate Assistance is Required to Protect the Privacy of CHP Holders
Due to recent Freedom of Access Act (FOAA) requests by the Bangor Daily News and other unspecified outlets to obtain personal information—including the names, addresses and birthdates—of all Concealed Handgun Permit (CHP) holders in Maine, Governor Paul LePage (R) has put forward emergency legislati
IL: 15 sec. in-person interview with anonymous informant allowed officer to assess credibility
15 second in-person interview between officer and anonymous informant about a machine gun being put in a car and the direction of the car was sufficient to establish reasonable suspicion. The officer could assess her credibility. People v. Sanders, 2013 IL App (1st) 102696, 2013 Ill. App. LEXIS 60 (
DC: “Post-and-forfeit” provision of the DC Code doesn’t violate Fourth Amendment
The “post-and-forfeit” provision of the DC Code that permits a defendant to post bond and forfeit it rather than contest does not violate the Fourth Amendment. Fox v. District of Columbia, 2013 U.S. Dist. LEXIS 20524 (D. D.C. February 15, 2013): Count 4A of Fox’s second amended complaint alleges th
Grassroots Alert: Vol. 20, No. 7 02/15/2013
Obama Justice Department Reveals Truth About State of the Union Claims
Despite long odds, on Tuesday night, Barack Obama managed to turn in a State of the Union performance that was filled with more theatrical pandering than the event is typically known for.
Senate Subcommittee Holds Hearing on Second Amendment
On Tuesday, February 12, career gun control advocate Sen. Richard Durbin (D-Ill.) held a Senate Judiciary Committee hearing inappropriately titled, “Protecting Our Communities While Respecting the Second Amendment.”
Illinois: Illinois Sheriffs’ Association Opposes State’s Proposed “Assault Weapons” Ban
The Illinois Sheriffs’ Association has come out in opposition to the state’s proposed “assault weapons” ban according to a recentWJBC.com article.
New Hampshire: Firearms Legislation before Committee Next Week
Several firearm-related bills are scheduled for a hearing in the House Criminal Justice and Public Safety Committee on Thursday, February 21 in Representative Hall.
Arkansas: Urge Your Legislators to Protect the Church Protection Act and Support Right-to-Carry Confidentiality
House Bill 1284, an anti-gun bill designed to completely neutralize the intent of the recently-enacted Senate Bill 71, is on the agenda of the House Judiciary Committee and could be heard the next time this committee meets. SB 71, signed into law on February 11, removes the absolute prohibition on
North Carolina: Senate Committee to Consider Right-to-Carry Confidentiality Bill
Senate Bill 28, introduced by state Senator Stan Bingham (R-33), has been assigned to the Senate Judiciary II Committee and could be voted on in the near future. This legislation would make information on Concealed Handgun Permit (CHP) holders accessible only to law enforcement, and provide critica
Maryland: URGENT — Vote on Governor’s Gun Control Scheme Moved to Next Week – Your Action Needed NOW to Protect Your Rights
Emergency: Last Chance to Demand Senate Judicial Proceedings Committee and Your Senator to Oppose All Aspects of SB 281
New York: An Event You Don’t Want to Miss
NRA President David Keene to Speak at NYSRPA Lobby Day and Rally on February 28th in Albany!
Gun Ownership at All-Time High, Nation’s Murder Rate at Nearly All-Time Low
The nation’s total violent crime rate hit an all-time high in 1991. Thereafter, it declined 18 of the next 20 years, 49 percent overall, to a 41-year low in 2011. That included a 52 percent decrease in the nation’s murder rate, to a 48-year low, nearly the lowest point in U.S. history. The FBI has p
WA’s SB 5737′s § 2(5)(a) on inspection of assault weapons in the home violates Fourth Amendment
examiner.com: Washington gun control proposal said to violate Fourth Amendment to Constitution, referring to an assault weapon limit in SB 5737. Section 2(5)(a) provides: (5) In order to continue to possess an assault weapon that was legally possessed on the effective date of this section, the pers
S.D.Cal.: Kozinski’s concurrence in CDT on computer searches not binding
Defendant was indicted for conspiracy to ship high tech medical imaging equipment to Iran in violation of the embargo. His overbroad computer search argument under United States v. Comprehensive Drug Testing is rejected, and Kozinski’s concurrence isn’t binding. Safe harbor, yes, but not binding. Un
Semi-Automatic Firearms and the “Assault Weapon” Issue Overview
Semi-automatic firearms were introduced more than a century ago. The first semi-automatic rifle was introduced in 1885, the first semi-automatic pistol in 1892, and the first semi-automatic shotgun in 1902. Semi-automatics account for about 20 percent of the 300 million privately-owned firearms in t
Hawaii: Anti-Gun Bills on the Move – Contact your state Senator Today!
Senate Bill 69, a gun “buyback” measure, was amended and passed in the Senate Public Safety, Intergovernmental and Military Affairs Committee (PSM) on February 7, by a 3-1 vote. This bill will be heard next by the Senate Ways and Means Committee (WAM). We will inform you as soon as a committee hear
Arizona: Bill to Prohibit Destruction of Firearms Passes House Committee
Today, the Arizona House Public Safety, Military and Regulatory Affairs Committee voted 5 to 3 in favor of a common sense reform that will prevent the destruction of firearms.
CA9: Detaining shooting witnesses for five hours and keeping ambulance from leaving stated Fourth Amendment claim
Plaintiffs were detained for five hours and interrogated as witnesses after a shooting, and they stated a claim that the detention was unreasonable. The decedent’s estate also had a claim under the “danger creation” doctrine because the officers at the scene refused to let the ambulance leave timely
IA: Runaway drunk suicidal teenager tracked to house was exigent circumstance when no answer at door
Police tracked a suicidal and intoxicated runaway teenager to defendant’s house via the cell phone’s GPS. At the house, nobody responded to the door, but the officers could hear the TV on upstairs. The door opened with a touch, and the lock was broken. The entry was justified by exigent circumstance
Bill to Prohibit Destruction of Firearms Passes House Committee
Today, the Arizona House Public Safety, Military and Regulatory Affairs Committee voted 5 to 3 in favor of a common sense reform that will prevent the destruction of firearms.
WA: Stop near gang shooting was with reasonable suspicion on totality
An officer responding to a call of shots fired in a gang dispute stopped a car “hurriedly” leaving the scene a block away when the occupants had rival gang colors to the area they were in. This was reasonable suspicion on the totality because of the officer’s knowledge of the local gangs. The st
IL: Stop after reasonable suspicion dissipated suppressed
Defendant was stopped because he was driving the van of a friend of his for whom there was a warrant out. Before the stop, however, the officer saw that the driver was not the wanted person, but stopped him anyway. The stop was without reasonable suspicion because it dissipated between first observa
North Carolina: Senators weigh public access to gun permit info
North Carolina lawmakers began debating Thursday whether there’s a legitimate interest in the public having access to names, addresses and other identifying information of people purchasing pistols or who’ve obtained concealed weapons permits.A bill filed by more than a dozen Senate Republicans woul
Arkansas: House committee advances Right-to-Carry privacy bill
An Arkansas House panel has advanced a proposal to make secret the list of 130,000 residents permitted to carry concealed weapons.The House Judiciary Committee on Thursday approved the measure to exempt the concealed carry permit list from Arkansas’ Freedom of Information Act.
Gun owners will ‘stand and fight’ for freedom, NRA chief says in Nashville
The head of the National Rifle Association vowed to fight new gun legislation and renewed his call for armed guards in schools on Thursday, speaking before the National Wild Turkey Federation’s annual convention at Gaylord Opryland Hotel.NRA CEO and Executive Vice President Wayne LaPierre heavily cr
NRA: Obama’s State of the Union shows true colors on gun violence
Continuing his charge against the Obama administration on gun control proposals, Wayne LaPierre of the National Rifle Association charged Thursday that President Barack Obama’s proposals in the State of the Union address were “not about keeping kids safe at school” but rather part of a broad campaig
Virginia: Senate backs bill to bar disclosure on concealed handgun permits
The state Senate voted 32 8 Thursday to bar circuit court clerks from disclosing to the public the names of people who have concealed handgun permits.The bill, sponsored by Sen. Mark D. Obenshain, R Harrisonburg, now goes to Gov. Bob McDonnell.
Maine: Newspaper’s request for concealed weapons permit lists riles GOP lawmakers
The Bangor Daily News has invoked Maine’s Freedom of Access Act in asking police to release the information, a request police said they appear to be obliged to fulfill under state law. The newspaper’s request came two months after a suburban New York City newspaper published an interactive map with
Law Offices of Kevin M. Smith, P.A.
Legal updates 2-28-2013
The Fourth Circuit takes the Charlotte-Mecklenburg PD back to training day on the Terry doctrine
This is a fascinating case on reasonable suspicion calculus and what an appellate court is expected to do in judicial review, rather than rubber stamping the trial court’s conclusion reasonable suspicion existed. Two guys standing around, one with a prior, doesn’t support a stop of both, let alone t
This is a fascinating case on reasonable suspicion calculus and what an appellate court is expected to do in judicial review, rather than rubber stamping the trial court’s conclusion reasonable suspicion existed. Two guys standing around, one with a prior, doesn’t support a stop of both, let alone t
Daily Kos: While Millions Hotly Debate the Second Amendment, the Fourth Amendment is Dying a Quiet Death
Daily Kos: While Millions Hotly Debate the Second Amendment, the Fourth Amendment is Dying a Quiet Death by Richard Riis: => Read more!
Montana: Several Pro-Gun Bills Advance
Several pro-gun bills have passed in the state House of Representatives and now advance to the Senate.
New Hampshire: Important Firearms Legislation to be Heard in House Committee Tomorrow
An executive session is scheduled for tomorrow, February 28 at 10:00 AM by the House Criminal Justice and Public Safety Committee.
North Dakota: State House Passes Multiple Pro-Gun Bills
This week, several bills of importance to gun owners, sportsmen and supporters of the Second Amendment passed in the state House:
Nevada: Senate Advances Concealed Carry Improvement Bill
Today, Senate Bill 76, that would improve the concealed carry weapon (CCW) firearms qualification process, passed in the Senate Judiciary Committee.
Oregon: Several New Anti-Gun Bills Introduced and Must be Defeated
Multiple measures that will infringe on our Second Amendment rights have been introduced in Oregon and your action is needed.
Montana: Several Pro-Gun Bills Advance
Several pro-gun bills have passed in the state House of Representatives and now advance to the Senate.
Kansas: Contact Your State Legislators in Support of Pro-Gun Reforms
The Kansas House Federal and State Affairs Committee considered two pro-gun reforms this week that would expand the rights of law-abiding gun owners. House Bill 2055, introduced by the House Federal and State Affairs Committee, would allow law-abiding citizens to carry a concealed handgun for self-
Virginia: Loudoun County Board of Supervisors to Consider Pro-Gun Ordinance on March 6
The Loudoun County Board of Supervisors held a public hearing on February 13, to discuss a proposed pro-gun amendment to Chapter 684 of the county’s Codified Ordinances, Weapons and Explosives, which regulates the lawful use and discharge of firearms within the unincorporated areas of Loudoun County
NYTimes: Justices Wrestle Over Allowing DNA Sampling at Time of Arrest
One of my favorite quotes about the Fourth Amendment is Frankfurter’s 1948 comment “[W]here one comes out on a case depends on where one goes in.” So, too, of DNA testing arrestees. See NYTimes: Justices Wrestle Over Allowing DNA Sampling at Time of Arrest by Adam Liptak: => Read more!
LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all
LA Daily Journal: Dog sniff ruling doesn’t smell so bad after all by Allison B. Margolin (Feb. 22, 2013) (sub. req.): => Read more!
GA: Validity of stop objection didn’t preserve the lack of PC argument on appeal
Objection in the trial court to the stop of the car didn’t include lack of probable cause for issuance of the search warrant for the car, so that issue is waived on appeal. Thomas v. State, 2013 Ga. LEXIS 144 (February 18, 2013).* LPN reader alert provides probable cause for a stop. Rodriguez v. St
Maryland Update: Vote on Governor’s Gun Control Scheme This Thursday – Your Action Needed NOW to Protect Your Rights
This Thursday, the Senate Judicial Proceedings Committee is set to vote on Senate Bill 281 (more information on this bill can be found here). It is likely that this sweeping anti-gun legislation will be reported out by this Committee and voted on by the entire Maryland Senate at the end of this wee
Kentucky: Senate Committee to Act on NRA-Backed Bill Tomorrow
NRA-backed Senate Bill 150, sponsored by state Senator Brandon Smith (R-30), will be considered by the Senate Veterans, Military Affairs and Public Protection Committee tomorrow at noon. This bill is critical to your inherent right to self-defense as it eliminates several discriminatory and arbitra
Washington: Bill to Criminalize All Private Firearms Transfers Goes to House Floor
Today, House Bill 1588, legislation that could criminalize private sales of firearms and lead to handgun registration, was amended and reported by the House Judiciary Committee by a 7-6 vote. HB 1588 is now headed to the House Rules Committee before going to the floor of the state House of Represen
Wyoming: Governor Signs Bill Repealing State Prohibition of Hunting With Suppressors
Wyoming Governor Matt Mead (R) signed into law Senate File 132, legislation introduced by Senator Ogden Driskill (R-01) that allows the use of suppressors for hunting all game in the Cowboy State starting on July 1, 2013. Thanks to passionate input from gun owners and sportsmen, the Wyoming House o
Wyoming: Governor Signs Bill Repealing State Prohibition of Hunting With Suppressors
Wyoming Governor Matt Mead (R) signed into law Senate File 132, legislation introduced by Senator Ogden Driskill (R-01) that allows the use of suppressors for hunting all game in the Cowboy State starting on July 1, 2013. Thanks to passionate input from gun owners and sportsmen, the Wyoming House o
Additional Pro-Gun Measures Introduced in Texas
Previously, we reported on approximately six NRA-backed issues filed so far in the 2013 Regular Session of the Texas Legislature. A few more bear mentioning with several weeks left until the bill filing deadline the first week of March. The NRA-ILA will keep you posted as to which committees these
Cato: “Clever Hans vs. the Fourth Amendment”; a comment on Harris
Cato: Clever Hans vs. the Fourth Amendment by Julian Sanchez: In the early 1900s, the German public was fascinated by a mathematical Mr. Ed named Clever Hans, an Orlov Trotter horse that seemed to be capable of counting, doing basic arithmetic, and even solving elementary word problems—which, lacki
Minnesota: Senate Judiciary Committee to Begin Gun Control Hearings This Thursday
This Thursday, February 21 at noon, the Senate Judiciary Committee will begin hearings in Room 15 of the state Capitol on dangerous anti-gun measures that would infringe on our Right to Keep and Bear Arms. This committee will also meet from 6:00-9:00 p.m. on Thursday evening for public testimony on
Hawaii: SB 69 Hearing Tomorrow, February 20 – Your Help Needed to Stop this Extremist Anti-Gun Measure
Senate Bill 69 started off as a Gun ”Buyback” bill, but has evolved into a “Gun Safety and Education” bill, and by further amendments has morphed into a gun owner harassment/mental interrogation bill. SB 69 will be heard tomorrow, February 20, by the Senate Ways and Means Committee (WAM) at 9:45 A
Utah: Three Pro-Gun Bills to be Heard Tomorrow
Tomorrow, the House Judiciary Committee is scheduled to hear House Bill 76, sponsored by state Representative John Mathis (R-55). HB 76 would allow any person, 21 years of age or older who can lawfully own and possess a firearm, to carry it concealed without a permit. This hearing is scheduled to b
Maryland Update: Vote on Governor’s Gun Control Scheme This Thursday – Your Action Needed NOW to Protect Your Rights
This Thursday, the Senate Judicial Proceedings Committee is set to vote on Senate Bill 281 (more information on this bill can be found here). It is likely that this sweeping anti-gun legislation will be reported out by this Committee and voted on by the entire Maryland Senate at the end of this wee
Maine: Temporary Concealed Handgun Permit Confidentiality Legislation Enacted Today
Legislative Document 576, temporary emergency Concealed Handgun Permit (CHP) confidentiality legislation, was enacted in Augusta today. LD 576, sponsored by state Senator Troy Jackson (D-35), passed overwhelmingly by a 33-0 vote in the state Senate and by a 129-11 vote in the state House of Represe
New Mexico: House Committee to Hear HB 402, New York-Style Gun and Magazine Ban, this Thursday, February 21!
The House Consumer and Public Affairs Committee will hold a public hearing on House Bill 402 this Thursday, February 21, at 1:30 pm (or upon adjournment of the House) in Room 315 of the State Capitol. Please attend this hearing and voice your opposition to HB 402. If this measure advances from thi
Washington State SB 5737 sponsor claims assault weapon inspection a “mistake”
Washington State SB 5737 (posted here) sponsor claims assault weapon inspection a “mistake” that shouldn’t have been in there. See Dems Sponsor Bill To Violate Fourth Amendment Rights Of Gun Owners. Mistake as in: Some scribe was supposed to have deleted that before it got submitted? Or, a slip of
SCOTUS: Bailey v. United States: Detentions permitted under Summers have to be in immediate vicinity
Bailey v. United States, 2013 U.S. LEXIS 1075 (Feb. 19, 2013) decided by SCOTUS: Detention of a person during execution of a search warrant has to be in the immediate vicinity of the place to be searched, and Bailey wasn’t in the vicinity. If the government can justify it under Terry, they get a sho
SCOTUS: Florida v. Harris: State proved dog was reliable; alert was PC
Florida v. Harris, 2013 U.S. LEXIS 1121 (Feb. 19, 2013), decided by SCOTUS. The state proved the drug dog reliable, so its alert is probable cause. Syllabus: Officer Wheetley pulled over respondent Harris for a routine traffic stop. Observing Harris’s nervousness and an open beer can, Wheetley soug
Chicago Police Superintendent McCarthy crosses the line
Chicago’s embattled police superintendent dug himself deeper into a pit of controversy today by claiming that lawful firearm owners are agents of political corruption. Appearing on a Chicago Sunday morning talk show, superintendent Garry McCarthy expressed his conviction that firearm owners who lob
West Virginia: Emergency Powers Protection Legislation Heads to House Floor, Multiple Pro-Gun Bills Introduced
Yesterday, NRA-supported House Bill 2471, sponsored by House Speaker Rick Thompson (D-19), was reported with a substitute by the House Judiciary Committee by a unanimous voice vote. HB 2471 seeks to prohibit the restriction of the lawful possession, use, carrying, transfer, transportation, storage o
Woman saves sister from robbery and assault, The St. Louis Post-Dispatch, St. Louis, Mo. 02/10/13
Sisters Debi Keeney and Donna Carlyle were at home in Highland, Mo. when a man forced his way inside the apartment as Keeney returned from smoking a cigarette outside. The criminal then threw Carlyle to the floor and began choking her and demanding money. Keeney recalled, “All I could see was Donna’
Colorado House clears requiring gun buyers to pay for background checks
A measure requiring individuals to pay a fee for their own background checks passed on a voice vote late Friday night on floor of the Colorado House. House Bill 1228 was the third of four Democratic gun bills debated in day long marathon floor session at the state Capitol.
Colorado: Biden lobbies House Democrats as they advance gun control bills
A package of gun control measures won initial approval in Colorado’s Democratic controlled House Friday night, with Vice President Joe Biden personally phoning four lawmakers from his ski vacation in the state to speed along the emotional debate.
Missouri: House Democrats propose semi-auto ban
Missouri’s gun friendly culture isn’t stopping some House Democrats from trying to purge assault weapons from the state.Legislation backed by several St. Louis area lawmakers would require gun owners to surrender or destroy their assault weapons within 90 days of the measure’s passage. The proposed
Maine: Governor proposes bill to protect privacy Right-to-Carry permit holders
Maine Gov. Paul LePage says he’s submitting a bill to temporarily block the release of concealed firearms permit holders’ names, addresses and dates of birth to the public.
Washington firearms manufacturer ends sales to New York in wake of new gun law
In response to the passage of New York’s sweeping new gun law, a Washington state based firearms manufacturer has decided to stop selling their products in the Empire State.Olympic Arms, a manufacturer of semiautomatic rifles and AR 15 style firearms, announced Tuesday it will no longer be doing bus
Connecticut: State Lawmakers Seek to Mandate Discriminatory Liability Insurance for Firearms Owners
Anti-gun lawmakers on the Insurance and Real Estate Committee voted to draft a bill on February 14 to mandate liability insurance for firearms owners. While no specific language has been offered yet, a public hearing could come as early this week.
Obama’s real gun control aim
Chicago is a dangerous town, but gun control hasn’t made it better. The city forbids the law abiding from having guns, leaving the bad guys to rule the streets. The result is one of the highest murder rates in the country. President Obama’s plan isn’t to reverse from a failed course, but to apply fe
David Keene, gentleman who sticks to his guns
For the leader of what may be the most polarizing interest group in America, National Rifle Association chief David Keene is a genial hard liner.He loves guns. He loves politics. He loves talking even with journalists, who are viewed in gun circles as overwhelmingly hostile to their cause.
Crime soared with Massachusetts gun law
In 1998, Massachusetts passed what was hailed as the toughest gun control legislation in the country. Among other stringencies, it banned semiautomatic “assault” weapons, imposed strict new licensing rules, prohibited anyone convicted of a violent crime or drug trafficking from ever carrying or own
Washington: Misstep in gun bill could defeat the effort
Forget police drones flying over your house. How about police coming inside, once a year, to have a look around?As Orwellian as that sounds, it isn’t hypothetical. The notion of police home inspections was introduced in a bill last week in Olympia.
E.D.Tenn.: Search of NCIC database not a Fourth Amendment issue
There is no Fourth Amendment right to protection against searching information in NCIC. A warrant on defendant was basis for his stop. United States v. Cobb, 2012 U.S. Dist. LEXIS 186155 (E.D. Tenn. December 27, 2012): Without providing any legal support for this argument, Defendant Campbell insist
CA11: Borrower of vehicle can challenge GPS tracking of his use of vehicle
Following the analogous United States v. Hernandez, 647 F.3d 216, 219-20 (5th Cir. 2011), defendant has standing to challenge GPS tracking of a vehicle he legitimately borrowed when he was in control, but not otherwise. United States v. Gibson, 2013 U.S. App. LEXIS 3322 (11th Cir. February 14, 2013)
D.Ore.: FISA’s “significant purpose” requirement satisfies Fourth Amendment
FISA’s “significant purpose” requirement has been upheld by several circuits under the Fourth Amendment. The PATRIOT Act amendments have also been upheld. This court doesn’t disagree. United States v. Mohamud, 2012 U.S. Dist. LEXIS 186093 (D. Ore. May 7, 2012).* A commercial building that was the s
E.D.N.C.: Rifle case, a “single purpose container” that revealed its contents, could be searched without warrant
Defendant had a reasonable expectation of privacy in zipped and closed duffle bags stored by permission at a friend’s house. This was reasonable under our societal understandings. See United States v. Waller, 426 F.3d 828 (6th Cir. 2005). The closed and locked nature of the containers showed his exp
Colorado: House Passes Most Sweeping Anti-Gun Legislation in Recent History
In the face of tens of thousands of gun owners, sportsmen and shooting enthusiasts, anti-gun zealots leading the rights-infringing charge in Denver passed a package of anti-gun bills in the state House seeking to undermine the Second Amendment in Colorado.
Am.Crim.L.Rev. Blog: “So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees”
Am.Crim.L.Rev. Blog: So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees by Regan Gibson, ACLR Featured Blogger: On February 26, 2013, the Supreme Court will hear argument in Maryland v. King, and will determine the constitutionality of a Maryland statu
FL5: Defendant not entitled to be Mirandized before consent to search his person was sought during a traffic stop
Defendant was not entitled to be Mirandized before consent to search his person was sought during a traffic stop. State v. Thomas, 2013 Fla. App. LEXIS 2415 (Fla. 5th DCA February 15, 2013).* Defendant was detained for consuming alcohol in public. His admission he was armed justified a patfrisk for
OH8: USMs did not show reasonable basis to believe fleeing fugitive in defendant’s home
The USMs were looking for a fleeing violent fugitive who cut off an ankle monitor, and they ended up at defendant’s house. There was no showing at all of a reasonable belief that the fugitive was even in defendant’s residence (Steagald). There was allegedly “a tip,” but no factual basis at all was g
OH2: Precedent permitting hot pursuit entry into home for fleeing mere traffic stop should be overruled
Hot pursuit into a home of somebody fleeing a mere traffic offense is permitted by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 2002 Ohio 1625, 765 N.E.2d 330, but this court sure doesn’t like it. State v. Lam, 2013 Ohio 505, 2013 Ohio App. LEXIS 442 (2d Dist. February 15, 2013): [*P20] The
IA: People in apartment talking loud about drugs and what to do with the cops outside was exigency
People inside the apartment “discuss[ing] their concern about police presence in the building” including one saying he had drugs on him was exigency for entry. State v. Floyd, 2013 Iowa App. LEXIS 229 (February 13, 2013): Here, in contrast, the information relayed to police officers indicated a lar
TN: Matching description of car fleeing burglary was RS for stop
Officers had reasonable suspicion to stop defendant in a car that matched one reported in a burglary near the time of the burglary speeding away from the area of the burglary. State v. Rogers, 2013 Tenn. Crim. App. LEXIS 124 (February 13, 2013).* Defendant was stopped for speeding, and the odor of
CA4: Report of live grenade in house still wasn’t exigency without knowing more
The mere presence of an alleged live grenade, without more, did not justify exigency for a police entry into defendant’s house. In fact, it turned out that the grenade was last seen by defendant’s wife, the reporter to them, two years earlier, although the police didn’t know that at the time. Se
D.Ariz.: One doesn’t need to be a police target for a search warrant to issue for evidence
Defendant contended that he was not a suspect in a crime, but a witness, therefore a search warrant could not issue for his place. To the contrary, a person can be innocent of crime but have evidence subject to a search warrant (Zurcher). United States v. Kelly, 2013 U.S. Dist. LEXIS 20949 (D. Ariz.
N.D.Ga.: Search warrant for drugs and records at a business includes owner’s attache case
Search warrant for drugs and records of a business included defendant’s attache case that was there when the warrant arrived. The warrant was conceded to be otherwise valid. United States v. Votrobek, 2012 U.S. Dist. LEXIS 185962 (N.D. Ga. June 25, 2012).* Defendant’s stop on a motorcycle was for s
W.D.Va.: No reasonable expectation of privacy in an unlocked vehicle parked off one’s property
Because the defendant’s truck was not on the property when the warrant for the property was issued, it wasn’t subject to the warrant. However, the truck was left unlocked and with the key in the ignition, and the court finds that shows a lack of a “reasonable expectation of privacy” in the truck. Un
Colorado: Anti-Gun Measures Eligible for a Final Vote This Monday
Yesterday, four anti-gun measures passed their second reading in the Colorado House of Representatives and are now eligible for a final vote this Monday at 10:00 a.m. Your firearms freedoms could be stolen away soon if you do not act now.
Maine: Your Immediate Assistance is Required to Protect the Privacy of CHP Holders
Due to recent Freedom of Access Act (FOAA) requests by the Bangor Daily News and other unspecified outlets to obtain personal information—including the names, addresses and birthdates—of all Concealed Handgun Permit (CHP) holders in Maine, Governor Paul LePage (R) has put forward emergency legislati
IL: 15 sec. in-person interview with anonymous informant allowed officer to assess credibility
15 second in-person interview between officer and anonymous informant about a machine gun being put in a car and the direction of the car was sufficient to establish reasonable suspicion. The officer could assess her credibility. People v. Sanders, 2013 IL App (1st) 102696, 2013 Ill. App. LEXIS 60 (
DC: “Post-and-forfeit” provision of the DC Code doesn’t violate Fourth Amendment
The “post-and-forfeit” provision of the DC Code that permits a defendant to post bond and forfeit it rather than contest does not violate the Fourth Amendment. Fox v. District of Columbia, 2013 U.S. Dist. LEXIS 20524 (D. D.C. February 15, 2013): Count 4A of Fox’s second amended complaint alleges th
Grassroots Alert: Vol. 20, No. 7 02/15/2013
Obama Justice Department Reveals Truth About State of the Union Claims
Despite long odds, on Tuesday night, Barack Obama managed to turn in a State of the Union performance that was filled with more theatrical pandering than the event is typically known for.
Senate Subcommittee Holds Hearing on Second Amendment
On Tuesday, February 12, career gun control advocate Sen. Richard Durbin (D-Ill.) held a Senate Judiciary Committee hearing inappropriately titled, “Protecting Our Communities While Respecting the Second Amendment.”
Illinois: Illinois Sheriffs’ Association Opposes State’s Proposed “Assault Weapons” Ban
The Illinois Sheriffs’ Association has come out in opposition to the state’s proposed “assault weapons” ban according to a recent WJBC.comarticle.
New Hampshire: Firearms Legislation before Committee Next Week
Several firearm-related bills are scheduled for a hearing in the House Criminal Justice and Public Safety Committee on Thursday, February 21 in Representative Hall.
Arkansas: Urge Your Legislators to Protect the Church Protection Act and Support Right-to-Carry Confidentiality
House Bill 1284, an anti-gun bill designed to completely neutralize the intent of the recently-enacted Senate Bill 71, is on the agenda of the House Judiciary Committee and could be heard the next time this committee meets. SB 71, signed into law on February 11, removes the absolute prohibition on
North Carolina: Senate Committee to Consider Right-to-Carry Confidentiality Bill
Senate Bill 28, introduced by state Senator Stan Bingham (R-33), has been assigned to the Senate Judiciary II Committee and could be voted on in the near future. This legislation would make information on Concealed Handgun Permit (CHP) holders accessible only to law enforcement, and provide critica
Maryland: URGENT — Vote on Governor’s Gun Control Scheme Moved to Next Week – Your Action Needed NOW to Protect Your Rights
Emergency: Last Chance to Demand Senate Judicial Proceedings Committee and Your Senator to Oppose All Aspects of SB 281
New York: An Event You Don’t Want to Miss
NRA President David Keene to Speak at NYSRPA Lobby Day and Rally on February 28th in Albany!
Gun Ownership at All-Time High, Nation’s Murder Rate at Nearly All-Time Low
The nation’s total violent crime rate hit an all-time high in 1991. Thereafter, it declined 18 of the next 20 years, 49 percent overall, to a 41-year low in 2011. That included a 52 percent decrease in the nation’s murder rate, to a 48-year low, nearly the lowest point in U.S. history. The FBI has p
WA’s SB 5737′s § 2(5)(a) on inspection of assault weapons in the home violates Fourth Amendment
examiner.com: Washington gun control proposal said to violate Fourth Amendment to Constitution, referring to an assault weapon limit in SB 5737. Section 2(5)(a) provides: (5) In order to continue to possess an assault weapon that was legally possessed on the effective date of this section, the pers
S.D.Cal.: Kozinski’s concurrence in CDT on computer searches not binding
Defendant was indicted for conspiracy to ship high tech medical imaging equipment to Iran in violation of the embargo. His overbroad computer search argument under United States v. Comprehensive Drug Testing is rejected, and Kozinski’s concurrence isn’t binding. Safe harbor, yes, but not binding. Un
Semi-Automatic Firearms and the “Assault Weapon” Issue Overview
Semi-automatic firearms were introduced more than a century ago. The first semi-automatic rifle was introduced in 1885, the first semi-automatic pistol in 1892, and the first semi-automatic shotgun in 1902. Semi-automatics account for about 20 percent of the 300 million privately-owned firearms in t
Hawaii: Anti-Gun Bills on the Move – Contact your state Senator Today!
Senate Bill 69, a gun “buyback” measure, was amended and passed in the Senate Public Safety, Intergovernmental and Military Affairs Committee (PSM) on February 7, by a 3-1 vote. This bill will be heard next by the Senate Ways and Means Committee (WAM). We will inform you as soon as a committee hear
Arizona: Bill to Prohibit Destruction of Firearms Passes House Committee
Today, the Arizona House Public Safety, Military and Regulatory Affairs Committee voted 5 to 3 in favor of a common sense reform that will prevent the destruction of firearms.
CA9: Detaining shooting witnesses for five hours and keeping ambulance from leaving stated Fourth Amendment claim
Plaintiffs were detained for five hours and interrogated as witnesses after a shooting, and they stated a claim that the detention was unreasonable. The decedent’s estate also had a claim under the “danger creation” doctrine because the officers at the scene refused to let the ambulance leave timely
IA: Runaway drunk suicidal teenager tracked to house was exigent circumstance when no answer at door
Police tracked a suicidal and intoxicated runaway teenager to defendant’s house via the cell phone’s GPS. At the house, nobody responded to the door, but the officers could hear the TV on upstairs. The door opened with a touch, and the lock was broken. The entry was justified by exigent circumstance
Bill to Prohibit Destruction of Firearms Passes House Committee
Today, the Arizona House Public Safety, Military and Regulatory Affairs Committee voted 5 to 3 in favor of a common sense reform that will prevent the destruction of firearms.
WA: Stop near gang shooting was with reasonable suspicion on totality
An officer responding to a call of shots fired in a gang dispute stopped a car “hurriedly” leaving the scene a block away when the occupants had rival gang colors to the area they were in. This was reasonable suspicion on the totality because of the officer’s knowledge of the local gangs. The st
IL: Stop after reasonable suspicion dissipated suppressed
Defendant was stopped because he was driving the van of a friend of his for whom there was a warrant out. Before the stop, however, the officer saw that the driver was not the wanted person, but stopped him anyway. The stop was without reasonable suspicion because it dissipated between first observa
North Carolina: Senators weigh public access to gun permit info
North Carolina lawmakers began debating Thursday whether there’s a legitimate interest in the public having access to names, addresses and other identifying information of people purchasing pistols or who’ve obtained concealed weapons permits.A bill filed by more than a dozen Senate Republicans woul
Arkansas: House committee advances Right-to-Carry privacy bill
An Arkansas House panel has advanced a proposal to make secret the list of 130,000 residents permitted to carry concealed weapons.The House Judiciary Committee on Thursday approved the measure to exempt the concealed carry permit list from Arkansas’ Freedom of Information Act.
Gun owners will ‘stand and fight’ for freedom, NRA chief says in Nashville
The head of the National Rifle Association vowed to fight new gun legislation and renewed his call for armed guards in schools on Thursday, speaking before the National Wild Turkey Federation’s annual convention at Gaylord Opryland Hotel.NRA CEO and Executive Vice President Wayne LaPierre heavily cr
NRA: Obama’s State of the Union shows true colors on gun violence
Continuing his charge against the Obama administration on gun control proposals, Wayne LaPierre of the National Rifle Association charged Thursday that President Barack Obama’s proposals in the State of the Union address were “not about keeping kids safe at school” but rather part of a broad campaig
Virginia: Senate backs bill to bar disclosure on concealed handgun permits
The state Senate voted 32 8 Thursday to bar circuit court clerks from disclosing to the public the names of people who have concealed handgun permits.The bill, sponsored by Sen. Mark D. Obenshain, R Harrisonburg, now goes to Gov. Bob McDonnell.
Maine: Newspaper’s request for concealed weapons permit lists riles GOP lawmakers
The Bangor Daily News has invoked Maine’s Freedom of Access Act in asking police to release the information, a request police said they appear to be obliged to fulfill under state law. The newspaper’s request came two months after a suburban New York City newspaper published an interactive map with
Pennsylvania: Legislators Ignore Logic and Lead with Emotion to Introduce Restrictive Measures
Taking a page from the Obama Administration’s playbook, anti-gun legislators in the Pennsylvania General Assembly have introduced a plethora of legislation that, if passed and enacted, will strip you of your Second Amendment rights.
Maine: Concealed Handgun Permit Holders at Risk
Today, state Senate and House Republican leadership held a press conference to challenge recent requests by the Bangor Daily News to obtain personal information on all Concealed Handgun Permit (CHP) holders in Maine.
Virginia: Right-to-Carry Confidentiality Bill Goes to the Governor for His Signature
A House substitute to Senate Bill 1335, patroned by state Senator Mark Obenshain (R-26), passed in the Virginia Senate today by a 32-8 vote after its approval in the House of Delegates by 76-23 vote on Tuesday. The substitute to S.B. 1335, reported by the House Militia, Police and Public Safety Com
Minnesota: Plan to Attend Next Week’s Gun Control Hearings!
On Thursday, February 21 at noon in room 15 of the state Capitol, the Senate Judiciary Committee will begin hearings on dangerous anti-gun measures that would infringe on our Right to Keep and Bear Arms. The Senate Judiciary Committee will likely be considering, among other bills, Senate File 205, o
Alaska: House Committee Advances Self-Defense Legislation
On February 8, House Bill 24, important self-defense legislation introduced by state Representative Mark Neuman (R-10), passed unanimously in the House Judiciary Committee. This bill now goes to the House Finance Committee where a hearing has not yet been scheduled.
Washington: Your State Legislators MUST Hear from You TODAY
Pressure is building in Olympia to pass HB 1588, which is a bill that would criminalize private transfers of firearms and lead to handgun registration. It is absolutely imperative for your state legislators to hear from you TODAY.
“We got our nose under the tent.”
California’s 1989 “assault weapon” ban applied to detachable-magazine semi-automatics, revolving-cylinder shotguns, and one fixed-magazine semi-automatic shotgun.
Why the Bans Wouldn’t Prevent Crimes
Guns that Sen. Feinstein wants to ban were never used in more than a small percentage of crime, according to the study that Congress required of the 1994-2004 ban.
Why the Gun and Magazine Bans Would Infringe the Second Amendment
The Supreme Court ruled in District of Columbia v. Heller (2008) that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.”
A Magazine Limit is Incompatible with the Second Amendment
In District of Columbia v. Heller (2008), the Supreme Court observed that “the inherent right of self-defense has been central to the Second Amendment right,” and it declared that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”
The Magazine Ban of 1994-2004 Didn’t Reduce Crime
The ban contained a requirement that a study be conducted of the ban’s effectiveness.
A New Magazine Limit Wouldn’t Reduce Crime Either
Over the last 20 years, as the number of magazines of all sizes have soared to all-time highs, the nation’s murder rate has dropped by more than half, to a 48-year low,3 nearly the lowest in U.S. history.
The Clinton White House: “We’re taking the law and bending it as far as we can.”
In 1998, President Clinton ordered the BATFE to expand its 1989 importation ban to prohibit the importation of rifles capable of using magazines that hold over 10 rounds of ammunition. The White House said “we’re taking the law and bending it as far as we can to capture a whole new class of guns.”
Law Offices of Kevin M. Smith, P.A.
Legal updates 2-20-2013
GA: Validity of stop objection didn’t preserve the lack of PC argument on appeal
Objection in the trial court to the stop of the car didn’t include lack of probable cause for issuance of the search warrant for the car, so that issue is waived on appeal. Thomas v. State, 2013 Ga. LEXIS 144 (February 18, 2013).* LPN reader alert provides probable cause for a stop. Rodriguez v. St
Objection in the trial court to the stop of the car didn’t include lack of probable cause for issuance of the search warrant for the car, so that issue is waived on appeal. Thomas v. State, 2013 Ga. LEXIS 144 (February 18, 2013).* LPN reader alert provides probable cause for a stop. Rodriguez v. St
Maryland Update: Vote on Governor’s Gun Control Scheme This Thursday – Your Action Needed NOW to Protect Your Rights
This Thursday, the Senate Judicial Proceedings Committee is set to vote on Senate Bill 281 (more information on this bill can be found here). It is likely that this sweeping anti-gun legislation will be reported out by this Committee and voted on by the entire Maryland Senate at the end of this wee
Kentucky: Senate Committee to Act on NRA-Backed Bill Tomorrow
NRA-backed Senate Bill 150, sponsored by state Senator Brandon Smith (R-30), will be considered by the Senate Veterans, Military Affairs and Public Protection Committeetomorrow at noon. This bill is critical to your inherent right to self-defense as it eliminates several discriminatory and arbitra
Washington: Bill to Criminalize All Private Firearms Transfers Goes to House Floor
Today, House Bill 1588, legislation that could criminalize private sales of firearms and lead to handgun registration, was amended and reported by the House Judiciary Committee by a 7-6 vote. HB 1588 is now headed to the House Rules Committee before going to the floor of the state House of Represen
Wyoming: Governor Signs Bill Repealing State Prohibition of Hunting With Suppressors
Wyoming Governor Matt Mead (R) signed into law Senate File 132, legislation introduced by Senator Ogden Driskill (R-01) that allows the use of suppressors for hunting all game in the Cowboy State starting on July 1, 2013. Thanks to passionate input from gun owners and sportsmen, the Wyoming House o
Wyoming: Governor Signs Bill Repealing State Prohibition of Hunting With Suppressors
Wyoming Governor Matt Mead (R) signed into law Senate File 132, legislation introduced by Senator Ogden Driskill (R-01) that allows the use of suppressors for hunting all game in the Cowboy State starting on July 1, 2013. Thanks to passionate input from gun owners and sportsmen, the Wyoming House o
Additional Pro-Gun Measures Introduced in Texas
Previously, we reported on approximately six NRA-backed issues filed so far in the 2013 Regular Session of the Texas Legislature. A few more bear mentioning with several weeks left until the bill filing deadline the first week of March. The NRA-ILA will keep you posted as to which committees these
Cato: “Clever Hans vs. the Fourth Amendment”; a comment on Harris
Cato: Clever Hans vs. the Fourth Amendment by Julian Sanchez: In the early 1900s, the German public was fascinated by a mathematical Mr. Ed named Clever Hans, an Orlov Trotter horse that seemed to be capable of counting, doing basic arithmetic, and even solving elementary word problems—which, lacki
Minnesota: Senate Judiciary Committee to Begin Gun Control Hearings This Thursday
This Thursday, February 21 at noon, the Senate Judiciary Committee will begin hearings in Room 15 of the state Capitol on dangerous anti-gun measures that would infringe on our Right to Keep and Bear Arms. This committee will also meet from 6:00-9:00 p.m. on Thursday evening for public testimony on
Hawaii: SB 69 Hearing Tomorrow, February 20 – Your Help Needed to Stop this Extremist Anti-Gun Measure
Senate Bill 69 started off as a Gun ”Buyback” bill, but has evolved into a “Gun Safety and Education” bill, and by further amendments has morphed into a gun owner harassment/mental interrogation bill. SB 69 will be heard tomorrow, February 20, by the Senate Ways and Means Committee (WAM) at 9:45 A
Utah: Three Pro-Gun Bills to be Heard Tomorrow
Tomorrow, the House Judiciary Committee is scheduled to hear House Bill 76, sponsored by state Representative John Mathis (R-55). HB 76 would allow any person, 21 years of age or older who can lawfully own and possess a firearm, to carry it concealed without a permit. This hearing is scheduled to b
Maryland Update: Vote on Governor’s Gun Control Scheme This Thursday – Your Action Needed NOW to Protect Your Rights
This Thursday, the Senate Judicial Proceedings Committee is set to vote on Senate Bill 281 (more information on this bill can be found here). It is likely that this sweeping anti-gun legislation will be reported out by this Committee and voted on by the entire Maryland Senate at the end of this wee
Maine: Temporary Concealed Handgun Permit Confidentiality Legislation Enacted Today
Legislative Document 576, temporary emergency Concealed Handgun Permit (CHP) confidentiality legislation, was enacted in Augusta today. LD 576, sponsored by state Senator Troy Jackson (D-35), passed overwhelmingly by a 33-0 vote in the state Senate and by a 129-11 vote in the state House of Represe
New Mexico: House Committee to Hear HB 402, New York-Style Gun and Magazine Ban, this Thursday, February 21!
The House Consumer and Public Affairs Committee will hold a public hearing on House Bill 402 this Thursday, February 21, at 1:30 pm (or upon adjournment of the House) in Room 315 of the State Capitol. Please attend this hearing and voice your opposition to HB 402. If this measure advances from thi
Washington State SB 5737 sponsor claims assault weapon inspection a “mistake”
Washington State SB 5737 (posted here) sponsor claims assault weapon inspection a “mistake” that shouldn’t have been in there. See Dems Sponsor Bill To Violate Fourth Amendment Rights Of Gun Owners. Mistake as in: Some scribe was supposed to have deleted that before it got submitted? Or, a slip of
SCOTUS: Bailey v. United States: Detentions permitted under Summers have to be in immediate vicinity
Bailey v. United States, 2013 U.S. LEXIS 1075 (Feb. 19, 2013) decided by SCOTUS: Detention of a person during execution of a search warrant has to be in the immediate vicinity of the place to be searched, and Bailey wasn’t in the vicinity. If the government can justify it under Terry, they get a sho
SCOTUS: Florida v. Harris: State proved dog was reliable; alert was PC
Florida v. Harris, 2013 U.S. LEXIS 1121 (Feb. 19, 2013), decided by SCOTUS. The state proved the drug dog reliable, so its alert is probable cause. Syllabus: Officer Wheetley pulled over respondent Harris for a routine traffic stop. Observing Harris’s nervousness and an open beer can, Wheetley soug
Chicago Police Superintendent McCarthy crosses the line
Chicago’s embattled police superintendent dug himself deeper into a pit of controversy today by claiming that lawful firearm owners are agents of political corruption. Appearing on a Chicago Sunday morning talk show, superintendent Garry McCarthy expressed his conviction that firearm owners who lob
West Virginia: Emergency Powers Protection Legislation Heads to House Floor, Multiple Pro-Gun Bills Introduced
Yesterday, NRA-supported House Bill 2471, sponsored by House Speaker Rick Thompson (D-19), was reported with a substitute by the House Judiciary Committee by a unanimous voice vote. HB 2471 seeks to prohibit the restriction of the lawful possession, use, carrying, transfer, transportation, storage o
Woman saves sister from robbery and assault, The St. Louis Post-Dispatch, St. Louis, Mo. 02/10/13
Sisters Debi Keeney and Donna Carlyle were at home in Highland, Mo. when a man forced his way inside the apartment as Keeney returned from smoking a cigarette outside. The criminal then threw Carlyle to the floor and began choking her and demanding money. Keeney recalled, “All I could see was Donna’
Colorado House clears requiring gun buyers to pay for background checks
A measure requiring individuals to pay a fee for their own background checks passed on a voice vote lateFriday night on floor of the Colorado House. House Bill 1228 was the third of four Democratic gun bills debated in day long marathon floor session at the state Capitol.
Colorado: Biden lobbies House Democrats as they advance gun control bills
A package of gun control measures won initial approval in Colorado’s Democratic controlled House Friday night, with Vice President Joe Biden personally phoning four lawmakers from his ski vacation in the state to speed along the emotional debate.
Missouri: House Democrats propose semi-auto ban
Missouri’s gun friendly culture isn’t stopping some House Democrats from trying to purge assault weapons from the state.Legislation backed by several St. Louis area lawmakers would require gun owners to surrender or destroy their assault weapons within 90 days of the measure’s passage. The proposed
Maine: Governor proposes bill to protect privacy Right-to-Carry permit holders
Maine Gov. Paul LePage says he’s submitting a bill to temporarily block the release of concealed firearms permit holders’ names, addresses and dates of birth to the public.
Washington firearms manufacturer ends sales to New York in wake of new gun law
In response to the passage of New York’s sweeping new gun law, a Washington state based firearms manufacturer has decided to stop selling their products in the Empire State.Olympic Arms, a manufacturer of semiautomatic rifles and AR 15 style firearms, announced Tuesday it will no longer be doing bus
Connecticut: State Lawmakers Seek to Mandate Discriminatory Liability Insurance for Firearms Owners
Anti-gun lawmakers on the Insurance and Real Estate Committee voted to draft a bill on February 14 to mandate liability insurance for firearms owners. While no specific language has been offered yet, a public hearing could come as early this week.
Obama’s real gun control aim
Chicago is a dangerous town, but gun control hasn’t made it better. The city forbids the law abiding from having guns, leaving the bad guys to rule the streets. The result is one of the highest murder rates in the country. President Obama’s plan isn’t to reverse from a failed course, but to apply fe
David Keene, gentleman who sticks to his guns
For the leader of what may be the most polarizing interest group in America, National Rifle Association chief David Keene is a genial hard liner.He loves guns. He loves politics. He loves talking even with journalists, who are viewed in gun circles as overwhelmingly hostile to their cause.
Crime soared with Massachusetts gun law
In 1998, Massachusetts passed what was hailed as the toughest gun control legislation in the country. Among other stringencies, it banned semiautomatic “assault” weapons, imposed strict new licensing rules, prohibited anyone convicted of a violent crime or drug trafficking from ever carrying or own
Washington: Misstep in gun bill could defeat the effort
Forget police drones flying over your house. How about police coming inside, once a year, to have a look around?As Orwellian as that sounds, it isn’t hypothetical. The notion of police home inspections was introduced in a bill last week in Olympia.
E.D.Tenn.: Search of NCIC database not a Fourth Amendment issue
There is no Fourth Amendment right to protection against searching information in NCIC. A warrant on defendant was basis for his stop. United States v. Cobb, 2012 U.S. Dist. LEXIS 186155 (E.D. Tenn. December 27, 2012): Without providing any legal support for this argument, Defendant Campbell insist
CA11: Borrower of vehicle can challenge GPS tracking of his use of vehicle
Following the analogous United States v. Hernandez, 647 F.3d 216, 219-20 (5th Cir. 2011), defendant has standing to challenge GPS tracking of a vehicle he legitimately borrowed when he was in control, but not otherwise. United States v. Gibson, 2013 U.S. App. LEXIS 3322 (11th Cir. February 14, 2013)
D.Ore.: FISA’s “significant purpose” requirement satisfies Fourth Amendment
FISA’s “significant purpose” requirement has been upheld by several circuits under the Fourth Amendment. The PATRIOT Act amendments have also been upheld. This court doesn’t disagree. United States v. Mohamud, 2012 U.S. Dist. LEXIS 186093 (D. Ore. May 7, 2012).* A commercial building that was the s
E.D.N.C.: Rifle case, a “single purpose container” that revealed its contents, could be searched without warrant
Defendant had a reasonable expectation of privacy in zipped and closed duffle bags stored by permission at a friend’s house. This was reasonable under our societal understandings. See United States v. Waller, 426 F.3d 828 (6th Cir. 2005). The closed and locked nature of the containers showed his exp
Colorado: House Passes Most Sweeping Anti-Gun Legislation in Recent History
In the face of tens of thousands of gun owners, sportsmen and shooting enthusiasts, anti-gun zealots leading the rights-infringing charge in Denver passed a package of anti-gun bills in the state House seeking to undermine the Second Amendment in Colorado.
Am.Crim.L.Rev. Blog: “So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees”
Am.Crim.L.Rev. Blog: So, What Have You Been Up To? Maryland v. King and the Implications of DNA Searches on Arrestees by Regan Gibson, ACLR Featured Blogger: On February 26, 2013, the Supreme Court will hear argument in Maryland v. King, and will determine the constitutionality of a Maryland statu
FL5: Defendant not entitled to be Mirandized before consent to search his person was sought during a traffic stop
Defendant was not entitled to be Mirandized before consent to search his person was sought during a traffic stop. State v. Thomas, 2013 Fla. App. LEXIS 2415 (Fla. 5th DCA February 15, 2013).* Defendant was detained for consuming alcohol in public. His admission he was armed justified a patfrisk for
OH8: USMs did not show reasonable basis to believe fleeing fugitive in defendant’s home
The USMs were looking for a fleeing violent fugitive who cut off an ankle monitor, and they ended up at defendant’s house. There was no showing at all of a reasonable belief that the fugitive was even in defendant’s residence (Steagald). There was allegedly “a tip,” but no factual basis at all was g
OH2: Precedent permitting hot pursuit entry into home for fleeing mere traffic stop should be overruled
Hot pursuit into a home of somebody fleeing a mere traffic offense is permitted by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 2002 Ohio 1625, 765 N.E.2d 330, but this court sure doesn’t like it. State v. Lam, 2013 Ohio 505, 2013 Ohio App. LEXIS 442 (2d Dist. February 15, 2013): [*P20] The
IA: People in apartment talking loud about drugs and what to do with the cops outside was exigency
People inside the apartment “discuss[ing] their concern about police presence in the building” including one saying he had drugs on him was exigency for entry. State v. Floyd, 2013 Iowa App. LEXIS 229 (February 13, 2013): Here, in contrast, the information relayed to police officers indicated a lar
TN: Matching description of car fleeing burglary was RS for stop
Officers had reasonable suspicion to stop defendant in a car that matched one reported in a burglary near the time of the burglary speeding away from the area of the burglary. State v. Rogers, 2013 Tenn. Crim. App. LEXIS 124 (February 13, 2013).* Defendant was stopped for speeding, and the odor of
CA4: Report of live grenade in house still wasn’t exigency without knowing more
The mere presence of an alleged live grenade, without more, did not justify exigency for a police entry into defendant’s house. In fact, it turned out that the grenade was last seen by defendant’s wife, the reporter to them, two years earlier, although the police didn’t know that at the time. Se
D.Ariz.: One doesn’t need to be a police target for a search warrant to issue for evidence
Defendant contended that he was not a suspect in a crime, but a witness, therefore a search warrant could not issue for his place. To the contrary, a person can be innocent of crime but have evidence subject to a search warrant (Zurcher). United States v. Kelly, 2013 U.S. Dist. LEXIS 20949 (D. Ariz.
N.D.Ga.: Search warrant for drugs and records at a business includes owner’s attache case
Search warrant for drugs and records of a business included defendant’s attache case that was there when the warrant arrived. The warrant was conceded to be otherwise valid. United States v. Votrobek, 2012 U.S. Dist. LEXIS 185962 (N.D. Ga. June 25, 2012).* Defendant’s stop on a motorcycle was for s
W.D.Va.: No reasonable expectation of privacy in an unlocked vehicle parked off one’s property
Because the defendant’s truck was not on the property when the warrant for the property was issued, it wasn’t subject to the warrant. However, the truck was left unlocked and with the key in the ignition, and the court finds that shows a lack of a “reasonable expectation of privacy” in the truck. Un
Colorado: Anti-Gun Measures Eligible for a Final Vote This Monday
Yesterday, four anti-gun measures passed their second reading in the Colorado House of Representatives and are now eligible for a final votethis Monday at 10:00 a.m. Your firearms freedoms could be stolen away soon if you do not act now.
Maine: Your Immediate Assistance is Required to Protect the Privacy of CHP Holders
Due to recent Freedom of Access Act (FOAA) requests by the Bangor Daily News and other unspecified outlets to obtain personal information—including the names, addresses and birthdates—of all Concealed Handgun Permit (CHP) holders in Maine, Governor Paul LePage (R) has put forward emergency legislati
IL: 15 sec. in-person interview with anonymous informant allowed officer to assess credibility
15 second in-person interview between officer and anonymous informant about a machine gun being put in a car and the direction of the car was sufficient to establish reasonable suspicion. The officer could assess her credibility. People v. Sanders, 2013 IL App (1st) 102696, 2013 Ill. App. LEXIS 60 (
DC: “Post-and-forfeit” provision of the DC Code doesn’t violate Fourth Amendment
The “post-and-forfeit” provision of the DC Code that permits a defendant to post bond and forfeit it rather than contest does not violate the Fourth Amendment. Fox v. District of Columbia, 2013 U.S. Dist. LEXIS 20524 (D. D.C. February 15, 2013): Count 4A of Fox’s second amended complaint alleges th
Grassroots Alert: Vol. 20, No. 7 02/15/2013
Obama Justice Department Reveals Truth About State of the Union Claims
Despite long odds, on Tuesday night, Barack Obama managed to turn in a State of the Union performance that was filled with more theatrical pandering than the event is typically known for.
Senate Subcommittee Holds Hearing on Second Amendment
On Tuesday, February 12, career gun control advocate Sen. Richard Durbin (D-Ill.) held a Senate Judiciary Committee hearing inappropriately titled, “Protecting Our Communities While Respecting the Second Amendment.”
Illinois: Illinois Sheriffs’ Association Opposes State’s Proposed “Assault Weapons” Ban
The Illinois Sheriffs’ Association has come out in opposition to the state’s proposed “assault weapons” ban according to a recent WJBC.comarticle.
New Hampshire: Firearms Legislation before Committee Next Week
Several firearm-related bills are scheduled for a hearing in the House Criminal Justice and Public Safety Committee on Thursday, February 21 in Representative Hall.
Arkansas: Urge Your Legislators to Protect the Church Protection Act and Support Right-to-Carry Confidentiality
House Bill 1284, an anti-gun bill designed to completely neutralize the intent of the recently-enacted Senate Bill 71, is on the agenda of the House Judiciary Committee and could be heard the next time this committee meets. SB 71, signed into law on February 11, removes the absolute prohibition on
North Carolina: Senate Committee to Consider Right-to-Carry Confidentiality Bill
Senate Bill 28, introduced by state Senator Stan Bingham (R-33), has been assigned to the Senate Judiciary II Committee and could be voted on in the near future. This legislation would make information on Concealed Handgun Permit (CHP) holders accessible only to law enforcement, and provide critica
Maryland: URGENT — Vote on Governor’s Gun Control Scheme Moved to Next Week – Your Action Needed NOW to Protect Your Rights
Emergency: Last Chance to Demand Senate Judicial Proceedings Committee and Your Senator to Oppose All Aspects of SB 281
New York: An Event You Don’t Want to Miss
NRA President David Keene to Speak at NYSRPA Lobby Day and Rally on February 28th in Albany!
Gun Ownership at All-Time High, Nation’s Murder Rate at Nearly All-Time Low
The nation’s total violent crime rate hit an all-time high in 1991. Thereafter, it declined 18 of the next 20 years, 49 percent overall, to a 41-year low in 2011. That included a 52 percent decrease in the nation’s murder rate, to a 48-year low, nearly the lowest point in U.S. history. The FBI has p
WA’s SB 5737′s § 2(5)(a) on inspection of assault weapons in the home violates Fourth Amendment
examiner.com: Washington gun control proposal said to violate Fourth Amendment to Constitution, referring to an assault weapon limit in SB 5737. Section 2(5)(a) provides: (5) In order to continue to possess an assault weapon that was legally possessed on the effective date of this section, the pers
S.D.Cal.: Kozinski’s concurrence in CDT on computer searches not binding
Defendant was indicted for conspiracy to ship high tech medical imaging equipment to Iran in violation of the embargo. His overbroad computer search argument under United States v. Comprehensive Drug Testing is rejected, and Kozinski’s concurrence isn’t binding. Safe harbor, yes, but not binding. Un
Semi-Automatic Firearms and the “Assault Weapon” Issue Overview
Semi-automatic firearms were introduced more than a century ago. The first semi-automatic rifle was introduced in 1885, the first semi-automatic pistol in 1892, and the first semi-automatic shotgun in 1902. Semi-automatics account for about 20 percent of the 300 million privately-owned firearms in t
Hawaii: Anti-Gun Bills on the Move – Contact your state Senator Today!
Senate Bill 69, a gun “buyback” measure, was amended and passed in the Senate Public Safety, Intergovernmental and Military Affairs Committee (PSM) on February 7, by a 3-1 vote. This bill will be heard next by the Senate Ways and Means Committee (WAM). We will inform you as soon as a committee hear
Arizona: Bill to Prohibit Destruction of Firearms Passes House Committee
Today, the Arizona House Public Safety, Military and Regulatory Affairs Committee voted 5 to 3 in favor of a common sense reform that will prevent the destruction of firearms.
CA9: Detaining shooting witnesses for five hours and keeping ambulance from leaving stated Fourth Amendment claim
Plaintiffs were detained for five hours and interrogated as witnesses after a shooting, and they stated a claim that the detention was unreasonable. The decedent’s estate also had a claim under the “danger creation” doctrine because the officers at the scene refused to let the ambulance leave timely
IA: Runaway drunk suicidal teenager tracked to house was exigent circumstance when no answer at door
Police tracked a suicidal and intoxicated runaway teenager to defendant’s house via the cell phone’s GPS. At the house, nobody responded to the door, but the officers could hear the TV on upstairs. The door opened with a touch, and the lock was broken. The entry was justified by exigent circumstance
Bill to Prohibit Destruction of Firearms Passes House Committee
Today, the Arizona House Public Safety, Military and Regulatory Affairs Committee voted 5 to 3 in favor of a common sense reform that will prevent the destruction of firearms.
WA: Stop near gang shooting was with reasonable suspicion on totality
An officer responding to a call of shots fired in a gang dispute stopped a car “hurriedly” leaving the scene a block away when the occupants had rival gang colors to the area they were in. This was reasonable suspicion on the totality because of the officer’s knowledge of the local gangs. The st
IL: Stop after reasonable suspicion dissipated suppressed
Defendant was stopped because he was driving the van of a friend of his for whom there was a warrant out. Before the stop, however, the officer saw that the driver was not the wanted person, but stopped him anyway. The stop was without reasonable suspicion because it dissipated between first observa
North Carolina: Senators weigh public access to gun permit info
North Carolina lawmakers began debating Thursday whether there’s a legitimate interest in the public having access to names, addresses and other identifying information of people purchasing pistols or who’ve obtained concealed weapons permits.A bill filed by more than a dozen Senate Republicans woul
Arkansas: House committee advances Right-to-Carry privacy bill
An Arkansas House panel has advanced a proposal to make secret the list of 130,000 residents permitted to carry concealed weapons.The House Judiciary Committee on Thursday approved the measure to exempt the concealed carry permit list from Arkansas’ Freedom of Information Act.
Gun owners will ‘stand and fight’ for freedom, NRA chief says in Nashville
The head of the National Rifle Association vowed to fight new gun legislation and renewed his call for armed guards in schools on Thursday, speaking before the National Wild Turkey Federation’s annual convention at Gaylord Opryland Hotel.NRA CEO and Executive Vice President Wayne LaPierre heavily cr
NRA: Obama’s State of the Union shows true colors on gun violence
Continuing his charge against the Obama administration on gun control proposals, Wayne LaPierre of the National Rifle Association charged Thursday that President Barack Obama’s proposals in the State of the Union address were “not about keeping kids safe at school” but rather part of a broad campaig
Virginia: Senate backs bill to bar disclosure on concealed handgun permits
The state Senate voted 32 8 Thursday to bar circuit court clerks from disclosing to the public the names of people who have concealed handgun permits.The bill, sponsored by Sen. Mark D. Obenshain, R Harrisonburg, now goes to Gov. Bob McDonnell.
Maine: Newspaper’s request for concealed weapons permit lists riles GOP lawmakers
The Bangor Daily News has invoked Maine’s Freedom of Access Act in asking police to release the information, a request police said they appear to be obliged to fulfill under state law. The newspaper’s request came two months after a suburban New York City newspaper published an interactive map with
Pennsylvania: Legislators Ignore Logic and Lead with Emotion to Introduce Restrictive Measures
Taking a page from the Obama Administration’s playbook, anti-gun legislators in the Pennsylvania General Assembly have introduced a plethora of legislation that, if passed and enacted, will strip you of your Second Amendment rights.
Maine: Concealed Handgun Permit Holders at Risk
Today, state Senate and House Republican leadership held a press conference to challenge recent requests by the Bangor Daily News to obtain personal information on all Concealed Handgun Permit (CHP) holders in Maine.
Virginia: Right-to-Carry Confidentiality Bill Goes to the Governor for His Signature
A House substitute to Senate Bill 1335, patroned by state Senator Mark Obenshain (R-26), passed in the Virginia Senate today by a 32-8 vote after its approval in the House of Delegates by 76-23 vote on Tuesday. The substitute to S.B. 1335, reported by the House Militia, Police and Public Safety Com
Minnesota: Plan to Attend Next Week’s Gun Control Hearings!
On Thursday, February 21 at noonin room 15 of the state Capitol, the Senate Judiciary Committee will begin hearings on dangerous anti-gun measures that would infringe on our Right to Keep and Bear Arms. The Senate Judiciary Committee will likely be considering, among other bills, Senate File 205, o
Alaska: House Committee Advances Self-Defense Legislation
On February 8, House Bill 24, important self-defense legislation introduced by state Representative Mark Neuman (R-10), passed unanimously in the House Judiciary Committee. This bill now goes to the House Finance Committee where a hearing has not yet been scheduled.
Washington: Your State Legislators MUST Hear from You TODAY
Pressure is building in Olympia to pass HB 1588, which is a bill that would criminalize private transfers of firearms and lead to handgun registration. It is absolutely imperative for your state legislators to hear from you TODAY.
“We got our nose under the tent.”
California’s 1989 “assault weapon” ban applied to detachable-magazine semi-automatics, revolving-cylinder shotguns, and one fixed-magazine semi-automatic shotgun.
Why the Bans Wouldn’t Prevent Crimes
Guns that Sen. Feinstein wants to ban were never used in more than a small percentage of crime, according to the study that Congress required of the 1994-2004 ban.
Why the Gun and Magazine Bans Would Infringe the Second Amendment
The Supreme Court ruled in District of Columbia v. Heller (2008) that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.”
A Magazine Limit is Incompatible with the Second Amendment
In District of Columbia v. Heller (2008), the Supreme Court observed that “the inherent right of self-defense has been central to the Second Amendment right,” and it declared that the amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”
The Magazine Ban of 1994-2004 Didn’t Reduce Crime
The ban contained a requirement that a study be conducted of the ban’s effectiveness.
A New Magazine Limit Wouldn’t Reduce Crime Either
Over the last 20 years, as the number of magazines of all sizes have soared to all-time highs, the nation’s murder rate has dropped by more than half, to a 48-year low,3 nearly the lowest in U.S. history.
The Clinton White House: “We’re taking the law and bending it as far as we can.”
In 1998, President Clinton ordered the BATFE to expand its 1989 importation ban to prohibit the importation of rifles capable of using magazines that hold over 10 rounds of ammunition. The White House said “we’re taking the law and bending it as far as we can to capture a whole new class of guns.”
More “assault weapons” and “large” magazines; less crime.
The nation’s violent crime rate, one-quarter of which involves firearms, and the nation’s property crime rate, none of which involves firearms, peaked in 1991. Both began decreasing thereafter, before the federal “assault weapon” ban took effect, and both continued decreasing after the ban expired.
Anti-gun activist group calls the “assault weapon” ban a “charade.”
While the ban was in effect, gun control supporters implied that it took guns away from criminals.
Terrorists, Mexican drug cartels, and “right-winger” reprise.
The Brady Campaign adopted a new poster boy, Osama bin Laden, in an ad implying that if the federal “assault weapons” ban were allowed to expire on “9-13” (Sept. 13) 2004, “9-11”-type terrorists would be able to buy “assault weapons.”
There is no need for gun owners to worry about “the slippery slope.”
A quick glance at the escalating bans and proposals put forth by individuals and groups says otherwise.
What is an “assault weapon”?
A fabricated term used to describe any semi-automatic firearm that resembles a fully automatic military firearm in styling and appearance.
How many “assault weapons” and “large” ammunition magazines do Americans own?
Since the ban expired in 2004, Americans have bought well over three million “assault weapons,” including more than 2.5 million AR-15s.
For what are “assault weapons” and other firearms that use “large” magazines used?
Self-defense, home protection, recreational and competitive shooting, hunting and marksmanship.
New Jersey: Fireworks in Trenton
Yesterday, the Assembly Law and Public Safety Committee passed twenty anti-gun bills over the vehement protest of gun owners. Their hearing was moved to a larger committee room when it became obvious gun owner turnout was going to exceed expectations, but the room still wasn’t big enough. Audio wa
New Mexico House Passes Watered-Down Version of House Bill 77 While House Bill 402 Still Awaits House Committee Consideration
Yesterday, the New Mexico House of Representatives passed House Bill 77 by a 43-26 vote, sending this measure to the state Senate for its consideration. Earlier this week, HB 77 was withdrawn from the House Appropriations and Finance Committee since it no longer contained an appropriation needed to
Law.com/NYLJ: “Class Action Granted in Second of Three Stop-and-Frisk Cases”
Law.com/NYLJ: Class Action Granted in Second of Three Stop-and-Frisk Cases by Mark Hamblett: The second of three major cases alleging the New York City Police Department engages in an unconstitutional pattern of stopping and frisking people without a reasonable suspicion that they are engaged in cr
South Carolina: Restaurant Carry Passes Senate Subcommittee
Yesterday, Senate Bill 308 passed in the Senate Judiciary Subcommittee by an unanimous voice vote. S. 308, introduced by state Senator Sean Bennett (R-38), is a critical self-defense reform that would remove the prohibition on a Concealed Weapon Permit (CWP) holder carrying a concealed firearm into
South Dakota: Senate Approves Right-to-Carry Reform
The South Dakota Senate voted unanimously yesterday to extend the validity of the state Permit to Carry a Concealed Pistol from four to five years. Senate Bill 166, introduced by state Senator Larry Rhoden (R-29) and state Representative Gary Cammack (R-29), now goes to the House of Representatives
Law Offices of Kevin M. Smith, P.A.
Over-aggressive police let alleged rapist walk!
Today the Kansas Supremes issued a very interesting opinion. In State v. Swindler, No. 104,580 (February 15, 2013) (yes, that’s the actual case name), the court considered whether coercive interrogation tactics amounted to a violation of a defendant’s fifth amendment rights (Miranda). In summation, the police told him he could end the interview at any time, but refused to do so when he asked for it to stop. As a result of the coercive tactics, the Court reversed the conviction.
Here’s the absurd part of this case. First, to be clear, the Court was right on. We have a Constitution for a reason. Police can use coercive tactics to violate many of our rights. Home school families, religious groups, citizens exercising their 2nd Amendment rights, basically any right that the powers that be have a problem with can be crushed. Often it’s distasteful facts that make laws that protects us innocent, righteous people in the future. Indeed, it was a KKK case that opened the way for Christians to express their faith on the public square. But sometimes the net outcome of law enforcement willingly stepping on rights to justify a conviction can make one sick to the stomach.
Swindler is a perfect example. As a result of the strong-armed tactics of the officers, and their willingness to ignore the Constitution, they either forced an innocent man to admit to a crime he didn’t commit…or they let a rapist go free. That’s right. The possible outcome of police ignoring and, in fact, crushing a man’s Constitutional rights is that an alleged rapist is now free.
It compels me to ask the question, was it worth it?
New book for clients and anyone interested in saving our Constitution
I’ve posted a few excerpts of a new book I’m writing on the Bill of Rights. It’s called “Patriot’s Guide to the Bill of Rights” and it’s almost ready for publication. As a teaser, check out the book’s cover…
Plan is to give it to all my clients. The rest of you will have to buy a hard back or e-book copy on Amazon. I will update everyone on the release date soon. Probably March 1, 2013.
Copyright © 2013 by Kevin Mark Smith
What about “shall not be infringed” do our lawmakers not understand?
Revisiting the Second Amendment and the right to keep and bear arms is in order given 
our lawmakers recent knee-jerk reaction to the massacre at Newtown, Connecticut. To give you an idea of how important it is for citizens to speak up and be heard on this issue, consider what our lawmakers are considering. Diane Feinstein’s proposals include banning all military-style semi-auto rifles as well as pistols capable of accepting magazines that hold 10 or more rounds of ammo. There is a grandfather clause for people who own such weapons already, but they must register all such offending weapons. That being said, consider the following chapter on a book I am writing on the Bill of Rights, then ask yourself the question, “What do our lawmakers not understand about the words ‘shall not be infringed’?”
Amendment II- The Right to Keep and Bear Arms
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Simply stated, we have the unalienable right to own firearms. More important, the federal government cannot pass any law that infringes on this right. Yet, we have seen several federal laws and executive orders issued the past several years that limited the ownership of so-called assault weapons, handguns, and even hunting rifles. Are these permissible under the 2nd Amendment? If not, what part of “shall not be infringed” do our lawmakers not understand?
MILITARY-STYLE WEAPONS ARE PROTECTED!
Before 2010, the last United States Supreme Court decision addressing the right to keep and bear arms was United States v. Miller, 307 U.S. 174 (1939). The Court considered whether a law banning sawed-off shotguns was constitutional. The Court held that such weapons were gangster-style weapons and that, since the purpose of the 2nd Amendment was to maintain militias, it only protects the right to own military-style weapons. The Court allowed the restriction of “sawed-off shotguns.” Specifically, “[c]ertainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. at 178. Conversely, since assault weapons are the modern-day equivalent of military-style weapons, Miller seems to imply that recent legislation banning such weapons would not pass constitutional muster. See Violent Crime Control and Law Enforcement Act, H.R. 3355, Pub.L. 103-322.
IS THE RIGHT TO KEEP AND BEAR ARMS A COLLECTIVE OR INDIVIDUAL RIGHT?
Miller raises another important question, one that has been raised by opponents to an individual right to keep and bear arms. Is the right to keep and bear arms a collective or individual right? After all, its text does say, “[a] well regulated Militia, being necessary to the security of a free State,” as prelude to the enumerated right. Militia means army, right? Prior to more recent case law, the only thing proponents of the individual right argument had to bolster their position was tradition (as well as the founders’ own propensity to own firearms sufficient to rebel against the government!). Hunting, for example (this is what they are saying, not me!), has a long tradition in the United States, and one doesn’t hunt deer with assault weapons or handguns. The argument here is that we must look into the Founding Fathers’ intent when the amendment was ratified. They obviously considered it as applying to sporting weapons since shotguns, or scatterguns, were available back then, too, and shotguns were not then considered military weapons, sawed off or not. Further, the Bill of Rights itself was a bill of individual rights and not societal. It’s not collective beyond a right imbued on the People, collectively, by their creator. Fortunately, we no longer have to peer into the hearts and minds of the founders.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court finally addressed the question of whether the right to keep and bear arms is collective or individual. As a summary of the facts, the District of Columbia banned all handguns. The Court found the ban unconstitutional and specifically held that the right to keep and bear arms is an individual right and not limited to the “collective” purpose of maintaining a militia. Also, such right includes the right to bear arms for self-defense. Ibid. at Syl. ¶1. Strangely, the Court did hold that handgun registration is permissible. Ibid. at Syl. ¶3.
NEITHER STATE NOR FEDERAL GOVERNMENTS CAN INFRINGE THE RIGHT TO KEEP AND BEAR ARMS!
Before 2010 there was another huge hole in 2nd Amendment jurisprudence. Simply put, it was technically still okay for states to regulate the right to keep and bear arms so long as the applicable state constitution permitted it. A brief history lesson is in order. Prior to the Civil War, the United States Constitution was a ban on federal interference and a limitation on federal power. The states were free to do whatever their own constitutions permitted. Most mirrored the federal Constitution so there really wasn’t an issue. Then the Civil War broke out over one such States’ rights issue, slavery. When the North won the war, it enacted and ratified the 13th and 14th Amendments to makes sure the South’s enslavement of blacks wasn’t carried out via other forms of involuntary servitude or systemic discrimination. The 13th Amendment prohibited all badges of slavery, private and public, such as blacks being banned from restaurants, and has since been used to justify a plethora of civil rights legislation that have nothing whatsoever to do with slavery, such as the Americans with Disabilities Act. See Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101 et. seq. The 14th Amendment applies all protections afforded by the Constitution versus the federal government to state and local governments pursuant to the Due Process clause in that amendment. Thus, from its ratification onward, the individual rights enumerated in the Bill of Rights are applicable to state governments as long as the Court incorporates the right as essential to due process. But here’s an interesting thing to note about this “incorporation” as it applies to the 2nd Amendment. See, e.g., Slaughterhouse Cases, 100 U.S. 1 (1873) (first group of Supreme Court cases incorporating the Bill of Rights in the Due Process clause of the 14th Amendment to force the states to comply with the 13th and 14th Amendments as they apply to badges of slavery and state action). Before 2010, more than 100 years after the 14th Amendment was ratified, no court had ever incorporated the right to keep and bear arms and thus applied it to the states.
In McDonald v. City of Chicago, Ill., 561 U.S. 3025 (2010), the Court considered a ban of firearms in the home similar to that in Heller. Technically, Heller was not yet binding on the states since it dealt with a federal jurisdictional matter. The District of Columbia is under the direct authority of the United States Congress and not any state government. Consequently, although it clearly addressed the issues of collective versus individual rights, and military versus self-defense-style weapons, it did not address incorporation. Along with applying the Heller findings as stated above, McDonald finally addressed the question of whether the federal right to keep and bear arms had to be honored by state and city governments. In finding that the right to keep and bear arms is “deeply rooted” in American tradition, it incorporated the right into the Due Process Clause of the 14th Amendment and applied it to all government actors, including states and municipalities. Ibid. at 3043.
Thus, we have an individual right to keep and bear arms even though reasonable registration and permit requirements are permissible. Also, since no court has addressed the question as to whether narrowly-tailored bans on certain kinds of firearms, or where they are possessed, are permissible despite the fact that there have been opportunities to specifically address these questions, such regulations are still constitutional. C.f. United States v. Lopez, 514 U.S. 549 (1995) (holding that restriction of weapons within close proximity to schools is unconstitutional since there was no finding that education of children had substantial affect on interstate commerce; did not address whether restriction of firearms itself was improper exercise of federal powers). Which once again begs the question of what is unclear about the phrase “shall not be infringed.”
Legal news updates 1-15-2013
New York: Second Amendment and Legislative Process Assaulted in Albany Late Last Night
Just before midnight and within minutes of the bill text becoming available to the public, the New York Senate passed radical anti-gun legislation late last night. Without any committee hearing or testimony, without public comment or even proper legislative procedure, anti-gun Governor Andrew Cuomo
Obama willing to use executive orders on guns
Lawmakers and other officials said that the president could use a public event as soon as Wednesday to signal his intention to engage in the biggest Congressional fight over guns in nearly two decades, focusing on the heightened background checks and including efforts to ban assault weapons and thei
Delaware: Gov. Markell wants private sale ban
The National Rifle Association issued a statement saying Markell was less interested in protecting children from gun violence than in pushing an anti gun agenda. The group noted that the Delaware Constitution affirms the right for a person to bear arms “for the defense of self, family, home and Stat
Mayor Bloomberg urges federal gun control
New York Mayor Michael Bloomberg is calling for federal gun control reforms.Bloomberg outlined his proposals Monday at the Johns Hopkins Bloomberg School of Public Health at a summit on reducing gun violence.
Kopel: Arming the right people can save lives
Everyone knows the terrible litany of gun violence: Columbine High School, Virginia Tech, Ft. Hood, Tucson, the Cinemark movie theater in Colorado, the Sikh temple in Wisconsin, Sandy Hook Elementary School.Here are some examples you may not have heard about: Pearl High School in Mississippi; Sulliv
North: Preserving the Second Amendment
The constitutional controversy created by the Obama administration also has backfired for those who sought to demonize the NRA as an extremist, fringe organization. Since the Biden task force was formed, more than 100,000 of our fellow citizens have joined the NRA, bringing membership to more than 4
CA11: Plaintiff’s planned violent crime justified force to arrest him; no excessive force
Federal officers arresting defendant were alleged to have used excessive force. Plaintiff was arrested as he was planning a violent felony, and taking the proof most favorably to him, the force here was not unreasonable considering what the officers knew when he was arrested. Williams v. Bauer, 2013
OH2: Failure to corroborate anonymous CI but for one public detail was a complete failure of PC
Information from the anonymous informant was not verified, except for one piece of personal information that was obvious. Therefore, issuance of the search warrant lacked probable cause. This was a fundamental violation of state law, therefore the Fourth Amendment, and suppression was required. Defe
N.D.Okla.: When a consent search of the home is involved, differences in the testimony of the officers was too much to bear
The government bore the burden of proof on consent to search defendant’s house, and it failed. While the officers were otherwise credible, the discrepancies in their versions was too much to tolerate when a search of the home is an issue. United States v. Starks, 2013 U.S. Dist. LEXIS 4985 (N.D. Okl
UT: Livestock inspector could enter open field
A state livestock inspector’s entry into an open field to inspect defendant’s cattle was into an open field and did not violate any rights of trespass under Jones. State v. Lamb, 2013 UT App 5, 2013 Utah App. LEXIS 8 (January 10, 2013): [*P16] We agree that the Fourth Amendment does not protec
TN: “48 hour hold” for investigation is an arrest requiring probable cause
The Memphis P.D.’s practice of a “48 hour hold” for investigation is an arrest requiring probable cause. This court has criticized it before. Here, they had probable cause for defendant’s arrest, and his confession to murder was otherwise voluntary. State v. Cox, 2013 Tenn. Crim. App. LEXIS 18 (Janu
New law review article: “DNA Profiles, Computer Searches, and the Fourth Amendment”
Catherine W. Kimel, DNA Profiles, Computer Searches, and the Fourth Amendment, 62 Duke Law Journal 933-973 (2013). Abstract: Pursuant to federal statutes and to laws in all fifty states, the United States government has assembled a database containing the DNA profiles of over eleven million citize
Biden Says, “Critically Important to Act” on Guns–Opens Door to Executive Action
The Obama administration is seeking to institute a far more sweeping gun-control agenda than simply reinstating the failed Clinton bans on “assault weapons” and “high-capacity” magazines.
Biden Says, “Critically Important to Act” on Guns–Opens Door to Executive Action
The Obama administration is seeking to institute a far more sweeping gun-control agenda than simply reinstating the failed Clinton bans on “assault weapons” and “high-capacity” magazines.
Connecticut: Weston Board of Selectmen Want to Ban Most Tools for Self-Defense—This Includes Slingshots and Compound Bows!
The Weston Board of Selectmen is currently pursuing an extremely restrictive ordinance that would severely infringe on your Second Amendment rights, subject Weston residents to egregious fines for possessing lawful items under state law, and inhibit your inherent right to self-defense.
NRA ‘disappointed’ after Biden meeting
Vice President Joe Biden said Thursday that he will deliver his recommendations on reducing gun violence to President Barack Obama by Tuesday, perhaps including universal background checks for purchases and forbidding certain types of high-capacity magazines.
NRA accuses White House of ‘attack’ on 2nd Amendment rights
The National Rifle Association said Thursday it was “disappointed” by its meeting Thursday with Vice President Biden, accusing the Obama administration of using the time to “attack the Second Amendment.”
Statement From the National Rifle Association of America Regarding Today’s White House Task Force Meeting
Fairfax, Va. – The National Rifle Association of America is made up of over 4 million moms and dads, daughters and sons, who are involved in the national conversation about how to prevent a tragedy like Newtown from ever happening again. We attended today’s White House meeting to discuss how to kee
Biden says Obama could use executive orders to restrict guns
Vice President Joe Biden said on Wednesday the White House plans to act quickly to curb gun violence and will explore all avenues – including executive orders that would not require the approval of Congress.
Prosecutor to look into TV incident
The decision on whether anyone should be prosecuted after “Meet the Press” host David Gregory appeared to hold a high capacity ammunition magazine on national television now belongs to the District’s Office of the Attorney General, authorities said Tuesday.
New York: More gun control sought by Gov. Cuomo
Mr. Cuomo is a possible 2016 presidential contender who is seeking to elevate his stature among Democrats base nationally, after a much praised victory on same sex marriage in his first year in office. His push for enhanced gun control even drew praise from Cardinal Timothy M. Dolan of New York, in
New Jersey: Bill would require psych tests for all applicants for firearm permits
Individuals seeking a permit to buy firearms in New Jersey would have to submit results of a psychological evaluation before they could buy a gun, under a bill introduced yesterday in the Legislature by West New York Assemblywoman Angelica Jimenez.
NYT Editorial: “Sneaky Apps That Track Cellphones”
NYT Editorial: Sneaky Apps That Track Cellphones: A perversion of smartphone technology called “stalking apps” — precise, secretive trackings of the movements of cellphone users — is increasingly a matter of national concern, particularly for domestic abuse victims. No less threatening is the routi
Sen. Feinstein suggests national “buyback” of guns
CA6 is troubled by 3 weeks of constant video surveillance of backyard under Jones but finds it harmless
The Sixth Circuit is troubled by three weeks of constant video surveillance of defendant’s backyard by a pole camera in light of Jones and its trespass holdings. “We are inclined to agree with the Fifth Circuit that ‘[t]his type of surveillance provokes an immediate negative visceral reaction.’” Nev
TN: DNA profile in John Doe arrest warrant was particular for Fourth Amendment and tolled SOL
A woman lawyer was the target of a home invasion at aggravated attempted rape in 1994 in Nashville. She struggled with the assailant who beat her head, and she bit off a piece of skin on his finger, spitting it under the bed. He left. In 2000, a DNA profile was run on the piece of the finger, and th
E.D.Pa.: Even disregarding a misleading paragraph in the SW application there was still PC
Officers conducted a protective sweep and saw ammunition in plain view. They also had enough to seek a search warrant, and they did, including the reference to the ammunition. There was a misleading paragraph in the affidavit. Excising it and the reference to the ammunition, there was still probable
E.D.Pa.: Car subject to search for PC could be moved before the search for safety purposes
The search of defendant’s car was justified by the automobile exception with probable caues or the search incident doctrine although the car was moved before the search to the police station. Defendant was stopped on a street, and a crowd had begun to form. It was within the officers’ discretion to
Asa Hutchinson on CNN’s State of the Union
Asa Hutchinson on CNN’s State of the Union - December 23, 2012
CA6: Fourth Amendment does not require question about DL before asking about drugs
There is no constitutional requirement that the officer ask for DL before asking about drugs. Defendant here was found to have consented to a search of his vehicle. United States v. Cochrane, 2012 U.S. App. LEXIS 25980, 2012 FED App. 0416P (6th Cir. December 20, 2012)*: To the extent that Defendant
OR: State can’t rely on standing on appeal if it doesn’t raise it at suppression hearing
The state could not rely on lack of standing to support admission of the product of the search where it did not raise it at the suppressing hearing. State v. Jepson, 2012 Ore. App. LEXIS 1525 (December 19, 2012).* Defendant was on probation and in custody, and his consent was not coerced even thoug