• Having finished Soukaneh v. Andrzejewski: CT Is a Gun Probable Cause for a Search? I had a long think as to what the Second Amendment implications were. It doesn’t seem to directly relate to Second Amendment issues.

    First we have a situation where a cops qualified immunity was stripped from him at the district court level. This is huge. It happens so seldom as to make the news almost every time it happens. Second it is a balancing question regarding “officer safety” v. our right to be left alone.

    The controlling case law seems to be Terry v. Ohio, 392 US 1 – Supreme Court 1968.

    In an 8-to-1 decision, the Court held that the search undertaken by the officer was reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a “hunch” and that “a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior.” The Court found that the searches undertaken were limited in scope and designed to protect the officer’s safety incident to the investigation.
    — Terry v. Ohio – Oyez

    The gist of a “Terry Stop” is that upon reasonable suspicion(Note that this might not be the correct term, IANAL) an officer of the law can stop and briefly detain and frisk a person looking for weapons, “for officer safety”.

    The courts, over time, have established pretty good case law in regards to Terry Stops. It is clear that the “frisk” can not be intrusive. For example, an officer can not remove your wallet from you and remove your ID from that wallet during a “frisk”. If the officer does detect a weapon during the frisk they can do other things for officer safety.

    The question in this case was would a reasonably prudent man have been warranted in believing that the plaintiff (good guy) was armed and presented a threat to the officer’s safety. Id. quoting Terry

    In my state and most reasonable states a person who is friendly and present a permit to carry is assumed to be on the “right side of the law.” The possession of the firearm is a normal thing. If there is no other interaction that should be enough to remove presented a threat to the officer’s safety Id. from the equation.

    In this case the officer admits he went past the bounds of a Terry Stop. He argues that because he hadn’t verified the permit that he was justified in assuming that the firearm was illegally possessed in a car and that allowed him to continue his warrantless search.

    Post Bruen we should be seeing more permits issued and more people legally carrying firearms. It then becomes a cultural issue of teaching the public and officers to not over react when they see a firearm. In places like NY, CT, NJ, and CT that is going to take a long time.

    Years ago in Maryland we were driving a two lane back road to a friends home. We passed a person walking on the shoulder of the road with a long gun. I mentally identified the guy as a “hunter” and didn’t think anything of it.

    About two hours later we were on our way back home and about the same place as I had spotted the hunter there were a half dozen cop cars and lots of cops. The hunter was sitting on the side of the road in cuffs and it looked like a search was underway.

    Turns out that he was a hunter, he had left the woods and was just walking back to his car in the easiest way possible.

    The culture of Maryland was that a person with a gun was bad. Orange cap and bolt action rifle wasn’t enough to make it the default that he was a good person. The default is always that owning a gun or having a gun on your person meant that you were bad.

            


  • B.L.U.F. Weird 2A case analysis. The Plaintiff(good guy?) charges that the cops removed him from his car, detained him, did a warrantless search of his vehicle, stole some cash. The Defendant(the state) claims that the presence of a legally carried firearm was justification for the search. Currently in the Second Circuit Court of Appeals waiting judgement.

    History

    Around 2043 on 2018-11-12 Basel Soukaneh was pulled over to the side of the road with the motor running. He was looking up a GPS location of a property he was considering buying.

    He was in a bad part of town where bad things happen so when Officer Andrzejewski noticed the car pulled over to the side with the engine running he performed a “traffic stop”.

    When he started his investigation Mr. Soukaneh announced that he had a permit to carry and that he did have a firearm with him in the car. At this point Officer Andrzejewski removed Mr Soukaneh from the car, put him on the ground, handcuffed him and then locked him in the back of his squad car.

    Officer Andrzejewski then proceeded to search the car, including the trunk of the car. At the end of the search he wrote a traffic citation for “parking in a driveway” and released Mr. Soukaneh.

    The Arguments

    (more…)

            
  • A search warrant is a warrant signed by a judge or magistrate authorizing a law enforcement officer to conduct a search on a certain person, a specified place, or an automobile for criminal evidence.

    A search warrant usually is the prerequisite of a search, which is designed to protect individuals’ reasonable expectation of privacy against unreasonable governmental physical trespass or other intrusion. The origin of this right is from the 4th Amendment of the U.S. Constitution to protect people from unlawful government searches and seizures.

    The Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
    Search warrant requirements

    Probable cause: The officer should give reasonable information to support the possibility that the evidence of illegality will be found. Such information may come from the officer’ personal observations or that of an informant. If the warrant lacks accurate information as to what will be searched, the search is unlawful. See Groh v. Ramirez, 540 U.S. 551 (2004).
    — Search Warrant

    IANAL, but isn’t the warrant intended to search ‘for specific things at specific locations’? If they came to my house looking for stolen bunnies off the easter farm but instead found a shit ton of perfectly legal arms, I would expect that I’d be left alone after that – presuming I don’t have a bunch of bunny skins hanging out back to dry. Why does this guy’s armory have to be put on blast?
    — b-zh

    Often times the police are looking for evidence of a crime of significance. The bigger the crime the bigger the charges. This leads to an escalation process. The process of escalating a search warrant to cover what you are actually looking for.

    Consider a search warrant to locate stolen property. The property you are looking for is a workbench taken from the local school.

    Since the search warrant lists what the specifics are that the search are searching for it limits where they can search. The would not be allowed to look in your wife’s intimates drawer. There is no way a “desk” could fit in a drawer. They would be allowed to open closet doors to make sure the desk wasn’t in a large closet.

    That doesn’t actually mean that it has to be logical. Our linen closet is not deep enough for a desk. If you look at the rooms around it and visualize the amount of space for that closet there is no way that it could hide a desk. But you could “hide a desk in a closet” so they warrant would allow the police to look in the closet. It would not allow them to look in containers in that closet.

    Now say the police are executing a search for that desk and sitting on your coffee table in front of the sofa is a crack pipe that looks like it was used.

    That cop now has new evidence in “plain view” of a potential crime. They still can’t go looking for the crack to go with that pipe. Or other drugs. They can only search where the warrant allows them.

    At this point the cop contacts the Judge or magistrate and says “look, we were executing the search of this scums house looking for stolen property and we found drug paraphernalia along with a drug scale. We need a search warrant to extend to looking for drugs.”

    The Judge or Magistrate issues the warrant and when that warrant is in hand the cops now can tear the house apart looking for “drugs”. They are no longer limited to searching place where a desk could be hidden, they are looking for places where drugs could be hidden.

    If in the process of looking for drugs they find evidence of other illegal activities they can act on that evidence. So finding a “rape kit” could be used as evidence because during a search for drugs that kit, hidden in the back of a closet, under the floor, in a box could have held drugs. When it was opened to check for drugs the “rape kit” was in plain sight.

    In the case listed the teacher was suspected of stealing from the local school. Some of the things he was suspected of stealing were tools belonging to the school. This could have meant things like table saws and milling machines but it could, and more likely was, small hand tools. For example a Fluke meter.

    That would have given the cops the ability to check anywhere something the size of a Fluke multi-meter could be hidden. That would include anyplace large enough to hide a firearm.

    Now that they are able to look in places that could hide firearms they find the dudes firearms. In New York state there are such things as “illegal guns” and “illegal magazines”. There doesn’t seem to be any laws requiring guns to be stored unloaded to the “loaded magazines” in the original article is not meaningful.

    Regardless, if the cops found an AR-15 style weapon they would be allowed to determine if it was an “illegal gun” and the same with the magazines. Once a gun was determined to be “illegal” under NY law, the dude could be charged with violating gun regulations.

    This case might end up in court and it might be that the defendant(dude in question) argues that the law making the guns and magazines “illegal” is unconstitutional and he might be able to get those charges dropped.

    A number of lawyers tell you to not talk to the cops. You have to understand exactly how much you should say and then you need to know to shut up and keep your mouth shut. The cop is looking for you to give him the probable cause to do more.

    Pulled from a number of advise articles: Why does a cop start his interaction with you at a traffic stop with “Do you know why I pulled you over?” If you tell answer him his job just got so much easier. If you reply with a polite “Why did you pull me over, Officer?” you haven’t admitted to anything.

            


  •         
  • In all, police seized more than 40 rifles, shotguns, a bin full of handguns and tens of thousands of rounds of ammunition from Jesse Weigand’s home on Demass Road in the town of Oswego during a search on Jan. 26, according to court documents.

    According to the report, Jesse was a Jr. High School teacher. He was investigated to determine if he stole school property. It appears that the police got a search warrant and searched his home. They found stolen school furniture and tools.

    The headlines though, are not about a school teacher stealing from the taxpayers. Nope, he had 91 high-capacity magazines, with 48 fully loaded.

    Now I don’t know how many magazines I currently have. They are not inventoried. I don’t know how much ammunition I currently have on hand. I do know that there are at least 7 30rd magazines for each AR and each AK style rifle. There are at least 6 magazines for the Glock and another 6 for the PC-9. But there are a boat load of magazines in and around the house.

    I don’t know how much ammo I have. I measure ammo in “full cans” And there are more than a few “full cans”.

    This doesn’t count the 100s if not 1000s of stripper clips that have rounds on them, nor the enbloc clips that have rounds in them.

    All in all. More than zero.

    This guy is in trouble for nine “illegal” assault rifles and 91 “high-capacity” magazines.

    Normally I would just say to a person like that “Great start! Keep up the good work.” The stealing from the school sort of means I won’t.

    Years ago one of my friends contacted me. The local school was disposing of dozens of old computers. They were being sent to the dump. He asked if we wanted any of them and we took a dozen or so, refurbished them, upgraded them and gave them to people that didn’t have computers.

    I’m pretty sure we would have been accused of “stealing” if the admin had found out. It is actually the case, in many locations, that taking stuff out of somebody’s dumpster/trash can is theft.

    [visual-link-preview encoded=”eyJ0eXBlIjoiZXh0ZXJuYWwiLCJwb3N0IjowLCJwb3N0X2xhYmVsIjoiIiwidXJsIjoiaHR0cHM6Ly93d3cuc3lyYWN1c2UuY29tL2NyaW1lLzIwMjMvMDIvc2VlLWd1bnMtc2VpemVkLWZyb20tZnVsdG9uLXRlYWNoZXItd2hvLXBvbGljZS1zYXktaGFkLXRlbnMtb2YtdGhvdXNhbmRzLW9mLXJvdW5kcy1vZi1hbW1vLmh0bWwiLCJpbWFnZV9pZCI6LTEsImltYWdlX3VybCI6Imh0dHBzOi8vd3d3LnN5cmFjdXNlLmNvbS9yZXNpemVyL1NuYXl0cmtBbE5UOXY2QUxoYno0M2hBWnRCZz0vMTI4MHgwL3NtYXJ0L2Nsb3VkZnJvbnQtdXMtZWFzdC0xLmltYWdlcy5hcmNwdWJsaXNoaW5nLmNvbS9hZHZhbmNlbG9jYWwvSkhKVEU3TFdSVkVRSkszRUM3NFhQQjJMTjQuanBnIiwidGl0bGUiOiJTZWUgZ3VucyBzZWl6ZWQgZnJvbSBGdWx0b24gdGVhY2hlciB3aG8gcG9saWNlIHNheSBoYWQgdGVucyBvZiB0aG91c2FuZHMgb2Ygcm91bmRzIG9mIGFtbW8iLCJzdW1tYXJ5IjoiUG9saWNlIGZvdW5kIGFzc2F1bHQgcmlmbGVzLCBzaG90Z3VucywgaGFuZGd1bnMgYW5kIGFtbXVuaXRpb24gd2hlbiB0aGV5IHNlYXJjaGVkIHRoZSBtYW7igJlzIGhvbWUgaW4gdGhlIHRvd24gb2YgT3N3ZWdvLiIsInRlbXBsYXRlIjoidXNlX2RlZmF1bHRfZnJvbV9zZXR0aW5ncyJ9″]

            
  • A Democratic US senator at the forefront of a push to enact new gun control measures has said Republicans “don’t give a crap” about children or gun violence.

    Connecticut’s Chris Murphy – who has been a leading force for Democrat gun control efforts since the 2012 Sandy Hook elementary school shooting killed 26 people in his state, 20 of them children – made the comment in a wide-ranging interview with Salon that was published on Tuesday.
    — Chris Murphy: Republicans ‘don’t give a crap’ about children or gun violence

    To paraphrase “If you don’t do it the way I want you to do it you hate children!”

    The gist has been for many many years that because I don’t want to give up my rights, because I don’t want to give up my freedom, because I don’t want to give up my firearms that I am an evil, hateful person that wants children to die.

    We did the annual firearm inventory the other day. This is the time when I lay hands on each and every firearm I own. I verify that the serial number is properly recorded and check for any maintenance the firearm might need. Like cleaning and oiling. As an example, my oldest AR-15 style firearm doesn’t get taken out very often. It was cleaned and oiled after that inventory was completed.

    Am I fearful of any of those firearms? No. Do I respect them? Yes, I do. I treat each and every one of them with respect because each and every one of them could kill me or a loved one dead if I am not careful.

    So how would one of my firearms become involved in a death?

    1. It could be stolen and used outside of my control
    2. There could be an accidental discharge
    3. There could be a negligent discharge
    4. There could be an intentional discharge with intent

    I have reasonable precautions in place to protect my firearms from being stolen. Are they perfect? No. Are they as good as they could be? Again no. Those are decisions I’ve made.

    Could there be an accidental discharge? By accidental I mean things like racking the slide and the gun goes bang with out my finger on the trigger, or the firearm is dropped and goes bang when in a safe condition, or if somebody without knowledge fired the firearm. For example my grandchild.

    My grandchild doesn’t visit very often. When he does visit the firearms are more securely stored. This is because he could do something accidently. For the rest, following the safety rules pretty much prevents a death due to accidental discharge.

    At one point I looked at the possibility of a negligent discharge as “ain’t going to happen to me”. It did happen to me. I have a Marlin 3082 with scope. In order to make it “easier” to manipulate the hammer the former owner put a hammer extension on it.

    I was at the range and preparing to safe the weapon. With the firearm pointed down range I attempted to lower the hammer. The hammer slipped from my thumb, hit the firing pin and fired the weapon. The round went into the ground, all safe.

    I’ve since changed the way I lower the hammer on any of my external hammer firearms. My left thumb goes between the firing pin and the hammer and then I manipulate the hammer to lower it. If the hammer falls it hits my thumb, not the firing pin.

    Regardless, using the four safety rules solve the problem of negligent discharges. They still happen but that is life. We do the best we can to reduce the time it does happen.

    Finally, there could be an intentional discharge. This is the case where there is justification for the use of deadly force and I choose to use it. At that point somebody is going to be stopped. They might die.

    In not one of these situations is there a single law that can be introduced that would stop “bad things” from happening. A safe storage law wouldn’t solve the problem entirely and it means that the state is deciding what is best for my family. To have no ability to defend my family or to have a very low risk of a minor accessing a firearm and something bad happening.

    If I decide to use deadly force it is a decision I make fully understanding the consequences of that decision. No law is going to stop it.

    Chris Murphy acts like a spoiled petulant child. He has his toys (security guards) and if you don’t do what he wants he’s going to throw a fit.

    I do give a crap. I don’t agree with his solution. That doesn’t make me evil. It doesn’t make me a bad person. I’ve stood between an aggressor and a loved one ready to go to jail if need be. I’m pretty sure he can’t say the same. I doubt very seriously that he has done the calculus on use of force to defend himself or others.

    Chris Murphy has others he pays to make that hard decision.

            


  • In Dominic Bianchi v. Brian Frosh in the Fourth Circuit court oral arguments were held on 2022-12-06. I started listening to the oral arguments back in December but couldn’t make my way through them so was hoping for a transcript.

    Today I’ve made my way part of it and got to the point where the state drew blood.

    In Heller and Bruen they Supreme court said that firearms can be regulated if they are dangerous and unusual. In Caetano quoting Heller the court says But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.Caetano v. Massachusetts, 136 S. Ct. 1027 – Supreme Court 2016 P. 1031

    The key here is commonly used for lawful purposes. In the arguments throughout all of the cases we are following the state restates this as in common use for self-defense. They then go on to define “for self-defense” to mean documented cases where an “assault weapon” was used and then attempt to narrow that even further to the trigger was pulled.

    In the oral arguments the state is very consistent in using the phrase “in common use for self-defense” instead of “in common use for lawful purposes.” When the state starts the court doesn’t fall for it. But the state continues and then suddenly around the 30 minute mark the Court starts using “common use for self-defense” and you can hear it in the state’s voice as they have their “gotcha” moment. That moment when they got the court thinking of redefining “unusual”.

    Oral arguments for Dominic Bianchi v. Brian Frosh

            

  • B.L.U.F. The Eleventh Circuit Court covering Florida had a three judge panel decided that 18-20 year olds couldn’t buy firearms. The opinion is a hot take.

    Emotional Blackmail Works

    The three judge panel’s opinion was written by Circuit Judge Rosenbaum. She starts the opinion with some emotional blackmail, telling us that young adults have been shooting people for a very long time using newspaper reports from the 1870’s. She is using this to get the following statements into the opinion:

    These stories are ripped from the headlines—the Reconstruction Era headlines, that is. But they could have been taken from today’s news. Unfortunately, they illustrate a persistent societal problem. Even though 18-to-20-year-olds now account for less than 4% of the population, they are responsible for more than 15% of homicide and manslaughter arrests.
    — Opinion of the Court — NRA v. Bondi

    Double emphasis added.

    In Bruen quoting Heller the Supreme Court established that when talking about the history and tradition of firearm regulation that the date to look at is 1791, the ratification of the Second Amendment. The founding period extends, at the latest, to 1826 when the last of the founding fathers died. Laws from the Reconstruction Era can be used to reinforce those traditions but can not be used if not supported by a tradition dating back to 1791.

    Age Bans are Legal If You Use Reconstruction Era Laws

    Judge Rosenbaum wants to use Reconstruction Era laws to justify the current law.
    (more…)

            

  • There was a small snow storm up here this week. Everything is back to normal.

    Later today there is going to be oral arguments in Koons v. Reynolds. Finding the transcripts has proven difficult and listening to oral arguments drives me bonkers.

    We are waiting on a number of cases as well. There is the case down in the Eleventh Circuit Court where the three judge panel decided that Bruen be damned, they were going to find laws justifying today’s infringements. There are the CCIA cases in New York that will be heard by the Second Circuit court soon.

    All in all there are a lot of moving parts.

    One of our readers asked “Why do you spend all this time on legal cases?” to paraphrase. I had to think on that a bit.

    Just before I headed off to University I was thinking about buying a gun. I didn’t really have the money but I was thinking about it. I really wanted to buy an M-16. They weren’t that expensive and they were cool.

    At University I spent my money on music (CD Collection) and stereo equipment, books and education. I collected knives but couldn’t justify buying a gun because I couldn’t carry it. Heck, most of the knives I carried on campus were illegal but…

    I graduated, had a kid, thought about that M-16 and suddenly that was gone. In the blink of an eye the cost of an M-16 went through the window with the Hughes Amendment. For those that don’t know, the Hughes Amendment was a poison pill added to the Firearm Owners Protection Act. The FOPA was designed to reign in the ATF and to allow citizens to transport weapons through gun unfriendly states without being harassed or charged.

    The Hughes Amendment closed the NFA list to new machine guns.

    In that blink of an eye my options changed. I slowly started to see and understand how stupid gun control laws were. When my mentor died his father took ownership of his AR-15. I had to explain to him that he had to unload all the magazines to meet Maryland law regarding “unloaded firearms”

    Before my mentor died we had testified in the state legislature against gun infringements. We found that our rights were being eroded.

    When I started writing for GFZ I was finding articles and writing opinion pieces based on what those articles said. I tried to find primary sources but most of the time they were missing. As I wrote more I got better at finding the references and reading the references.

    At this point I have an acceptable grasp of how to get case documents, not always, but most of the time.

    My goal when I write about these cases is for you to see how the fight is fought in court. How the state twists things to get the infringements they want. I also want you to be able to get to the primary sources quickly and easily. That’s why I attempt to cite everything I quote.

    I hope my efforts are successful.

    One of my biggest thrills on the blog to date was when some lawyer group liked one of my legal analysis articles. I wish that they would fire off an email or start commenting in general. I’d love to have actual lawyer feedback on some of the things I’ve written, I have no real feedback if I’m getting this stuff “right”.

    Question of the week, if you are interested in gun rights, how did you get there?

            

  • Most of the time I can get internet service via my cell carrier. The only real controlling issue is coverage. Which is getting better, slowly, but it is getting better.

    Last fall we lost power to the house when some idiot took out the power lines just down the street. While the house was without power we still had internet to our phones. We didn’t lose outside communications and if there was an issue I could have used my phone as a modem to get my main computer back on the net to do work by just using the genset.

    I could also use my laptop (Chromebook running Linux) and not needed the genset.

    When the entire town is without power everybody is attempting to get online via the cell carriers and there just isn’t enough capacity for that. This means that while my phone would get push notifications attempting to do anything else while the town was awake wasn’t really happening.

    Regardless, because my business is support I needed to be available. Even with no power. Even with no internet. So my phone was on the entire time. If I had gotten an emergency alert from a client or server I would have been able to move to a place where I did have internet in order to do my work. No big deal.

    But having my phone on and actively attempting to do things means that I was burning power. Which brings me to these gizmos.

    This is a battery with two type-A USB ports for charging other devices, like your phone. It has a third port to allow you to charge from other power sources, like a car or house. The added extra is those solar panels. It is just a little larger than my cell phone in its otterbox and about 3 times as thick. There are four solar panels when it unfolds and in our Northern Climate it takes about 8 hours of direct sun to charge.

    I get three charges for my phone from this. If you need to be able to charge your devices this might be useful to you.