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April 6, 2023

By Larry Keane

Rights Still Matter, Even in New York

A New York court affirmed that Due Process rights must be taken into consideration when enforcing so-called red flag laws and vacated New Yorks Gov. Kathy Hochuls executive order for enforcing Extreme Risk Protection Orders (ERPOs) or red flag orders. That is consistent with what NSSF has said from the beginning about ERPOs. If an individual is going to be deprived of fundamental constitutional rights, they must be afforded the opportunity to examine and challenge evidence brought against them they must be afforded due process of law.

In New Yorks case, the court requires that any red flag order must be accompanied by a determination from a physician or psychiatrist. Thats already part of New Yorks laws. The court noted that New Yorks Mental Hygiene law that states, a persons liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition likely to result in serious harm. Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctors opinion must be obtained and such an opinion must be consistent with the first doctors opinion.

This is a critical distinction to how Gov. Hochul wanted New Yorks red flag law to be administered. Her Executive Order allowed for a police officer, district attorney, family or household member, school administrator or a school administrators designee which includes guidance counselors or school social workers to petition for red flag orders. There was no requirement that a licensed medical professional to opine on the mental state of the individual in question. Her Executive Order required state police to file red flag orders on individuals when there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others

That left courts in the position of determining someones mental health state, without medical evidence to make that determination.

The Courts ruling now requires that the supporting documentation must include a doctors determination. Whats more, is the Court recognized that Second Amendment rights are foundational individual liberties and the state must clear a high bar when taking action to deprive someone of those rights.

Second Amendment rights are no less fundamental than Fourth Amendment rights (the right to liberty), and must be provided the same level of due process and equal protection, wrote Judge Craig Steven Brown.

Thats not just the U.S. Constitution that protects that right but also existing New Yorks Mental Hygiene Law. The court went further. It concluded that anyone subjected to a red flag order for more than 48 hours must have a second and concurring determination from another doctor.

NSSF has never opposed so-called red flag laws, so long as they provide procedural and substantive due process. Of the 19 states and the District of Columbia that have these laws on the books, none include sufficient or adequate due process protections. A New York Supreme Court has now held that they must be included.

The firearm industry wants to keep firearms out of the hands of those who cannot be trusted to responsibly possess them. That includes prohibited individuals, those suffering through a mental health crisis or suffering suicidal ideations and unsupervised children. Red flag laws have utility in protecting the public but must be carefully administered so these orders arent abused to disarm lawful gun owners.

The bar must be higher than mere accusations that someone is likely to harm themselves or others. ERPOs that would deprive a citizen of their constitutional rights must provide meaningful due process protections including allowing an individual to examine and rebut any evidence presented to a court for consideration. For that reason, NSSF has significant concerns with ex parte orders, which are issued without notice to the individual who is the subject of the order. And, on the truly rare occasion when there are exigent circumstances to justify an ex parte order, due process requires a very prompt post-deprivation hearing.

The New York judge got it right with this decision. We should be providing all the tools necessary for law enforcement to protect the public against criminals and mentally-deranged individuals that have no respect for life or law. Those protections, though, should never come at the cost to our foundational freedoms including Due Process and Second Amendment rights.

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New York Court Rules Due Process Must be Considered for 'Red ... - National Shooting Sports Foundation

I must confess that when I hear someone say that a legal case was decided on a technicality, my blood pressure goes up. I understand that it often appears at first glance that a nitpicking rule, or procedure, should not affect the outcome when a decision on the merits of the matter seems preferable and more just.

But a quick look at history indeed, a quick look at the history of the present moment around the world reveals that procedural justice is not a nuisance invented by lawyers and ivory tower academics. The truth is that procedural justice is at the very heart of the rule of law and thus is essential to freedom, fairness, and democracy.

No system of justice can operate properly if the rules of the game are not fair and do not apply equally to everyone, regardless of their political orientation or views of myriad subjects.

The bad guys deserve precisely the same level of protection as the good guys. The whole point of the rule of law is that everyone is operating pursuant to the same rules, rules which are fair, logical, and known to all participants. The unbiased application of legal norms and rulesrules of procedure, rules of evidence, rules relating to the suppression of illegally seized evidence, and many othersis essential to ensure fair outcomes. Our country has always prided itself on the principal that all who enter the legal system will begin at the same starting line.

Let me take a common hypothetical example of how the importance of legal technicalities can be misunderstood.

Police arrest an individual, lets call him Mr. Drugdealer, and charge him with a crime. The principal evidence of guilt is a bag of cocaine seized from the defendants residence. The defense files a motion seeking to prevent the use of the drugs at trial on the grounds that they were illegally seized in violation of the United States Constitution.

Following a hearing, a judge agrees with the defendants argument, suppresses the use of the cocaine by the state, and the state, lacking evidence, dismisses the case. The local newspaper predictably editorializes that it is travesty that Mr. Drugdealer walked away unscathed in the face of obvious guilt due to a legal technicality, and that the judge should be removed from the bench. After all, isnt it 100 percent clear that the defendant is guilty?

In this case, the legal technicality was the Fourth Amendment to the United States Constitution, which states in part: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated

Rather than lament the outcome, I believe it should be celebrated as a sign that the restrictions placed on the state by the Constitution are being honored and fairly applied.

What the newspaper failed to appreciate in this case is that while prosecuting criminals is a very important goal of society, it is not the only very important value at stake. The opposing value, expressed in the United States Constitution and state constitutions as well, is ensuring the privacy of people and the sanctity of their residence, and place limits on the police authorities. I remember a former law professor of mine who once stated that what some people called legal technicalities should really be viewed as tiny constitutions, designed to protect the rights of everyone, no matter their status in society.

The Founding Fathers, veterans of the Revolutionary War, understood what it meant to live in a society in which state power is unrestrained. They had lived under British rule, enduring taxation without representation, being forced to quarter troops in their homes, and various other indignities. The Constitution they drafted is largely premised on the proposition that a healthy dose of distrust of government power is a good and necessary thing.

So it is no accident that one of the first things totalitarian leaders do is change the technical rules to their own advantage, or abolish laws and procedures that stand in their way. The new rules they create may give an outward appearance of fairness, but they are a fraud. They are designed to strip the opposition of its rights and to ensure that enemies of the state are crushed.

The next time you hear someone complain about a legal technicality, please hesitate before you assume that the system has malfunctioned. Consider the possibility that the legal technicality should not be viewed as a nuisance, but as an essential ingredient in ensuring fair play, equal justice, and protection of the rule of law.

Without legal technicalities, democracy cannot exist. Without legal technicalities, and people who understand the essential role they play, our glorious experiment in freedom will be in mortal danger.

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Opinion: Democracy can't exist without "legal technicalities" - The Connecticut Mirror

California Highway Patrol vehicle at the State Capitol June, 2021.(Photo by Robert J Hansen)

By Robert J. Hansen

California is moving a bill through the legislature that would prohibit police from initiating low-level traffic stops unless there is a separate, independent reason.

A policy that I began suggesting two years ago.

Traffic stops are the most common interaction between police and civilians and are a primary source of racial and economic injustice according to Jordan Blair Woods, a law professor at the University of Arkansas.

Traffic enforcement is thus a common gateway for funneling over-policed and marginalized communities into the criminal justice system, Woods said in 2021.

SB 50 would limit law enforcements ability to use minor, non-safety-related traffic infractions to conduct what are often racially-biased, pretextual stops. It will also provide technical clarification to ensure that cities and counties in California have sufficient flexibility to explore non-law enforcement approaches to traffic safety.

About 3 percent of traffic stops result in an arrest according to a 2021 Center for Policing Equity (CPE) study.

A safety-first approach to traffic enforcement would also remediate racial disparities and reduce interactions between civilians and law enforcement.

Research shows that pretext stops do not significantly benefit public safety, yet use valuable resources that could be directed to more effective public safety approaches.

A 2022 study by Catalyst California and ACLU SoCal found that instead of addressing community concerns about serious crime, sheriffs deputies in Los Angeles and Riverside counties spent nearly 9 out of every 10 hours on stops initiated by officers rather than responding to calls for help.

Not surprisingly, the only opposition to the policy is from almost every law enforcement agency, union and district attorney in California. If SB 50 does not become law, it will be because the law enforcement community refuses to adopt the reforms lawmakers are creating.

Most importantly, this bills prohibition on detaining drivers for low-level infractions deprives peace officers of a very effective investigative tool that is often used by law enforcement to gather information needed in an ongoing criminal investigation, apprehend a suspect who is wanted for having committed an unrelated criminal violation or to investigate an unrelated offense, according to the California District Attorneys Association (CDAA).

The Fourth Amendment of the United States Constitution provides in part that, in When v. United States (1996), the Supreme Court held that the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendments protection from unreasonable seizures.

The When decision led to the widespread use of pretext stops, a traffic stop made as a pretext to stop a vehicle to investigate other possible crimes.

Many argue that pretext stops are a driver of racial bias in law enforcement, with others asserting that they subvert the spirit of the Fourth Amendment by giving officers carte blanche to stop a vehicle.

The CDAA wants to continue violating Californians constitutional rights to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.

We have seen far too many times how traffic stops can rapidly escalate and turn deadly, Senator Steven Bradford said. In this day and age, theres no reason why Californians should be stopped and potentially subjected to brutality or dehumanizing because of an expired license plate.

This legislation will reduce the potential for more harm to innocent members of the public, according to Bradford.

SB 50 will especially help to protect Californians of color from unnecessary harm and ensure that law enforcement has more time to focus on community safety by preventing and solving serious crimes, said Bradford. The data backs up the need for this legislation. Black Californians are far more likely to be targeted by police.

This legislation will also help to reduce the risk of harm to law enforcement officers by limiting the need for one of the most dangerous elements of their job, according to the bill.

By opposing the bill, the law enforcement community is effectively saying that it has no interest in focusing on more dangerous crimes or reducing the harm it causes minorities and disadvantaged communities. It even wants to keep a policy that makes the job more dangerous.

Berkeley policy analyst Darrell Owens thinks police dedicating their time to traffic enforcement is a waste of time and resources.

Owens spearheaded a proposal that would allow Berkeley to have unarmed officers enforce violations.

I agree with decriminalizing low-level traffic violations, Owens said.

Police departments try to avoid looking like they are racial profiling by making non-suspicious, low-level traffic stops according to Owens.

Then make a suspicious vehicle stop, Owens said. Just be honest about it. If you think that person is running guns in the community then thats what you stop them for. We dont need you [law enforcement] to muddle up traffic safety with policing.

It also doesnt work according to Owens.

People genuinely think that police are there to keep the roads safer with traffic violations. No, theyre not. Theyre there to do warrantless policing.

Recent Reforms

Oakland instituted a policy in 2018 of no longer initiating low-level traffic stops.

The number of traffic stops involving Black individuals decreased by over eight thousand, representing a 43% drop, according to the bill.

Berkeley proposed creating a Berkeley Department of Transportation which would take over responsibility for traffic enforcement from the police department.

In March 2022, the Los Angeles Police Department implemented a policy to limit the use, duration and scope of pretext stops conducted by its officers. The policy allows officers to make stops for minor equipment violations or other infractions only when the officer believes that such a violation significantly interferes with public safety but requires officers to state the public safety reason for such stops on their body-worn cameras.

Philadelphia became the first major city in the U.S. to ban low-level traffic stops in 2021.

Minneapolis Mayor Jacob Frey announced last August that the city attorneys office will no longer pursue tickets against motorists except for egregious driving behavior or criminal activity.

Former Rochester police officer and author of Police Brutality Matters, Joseph Ested thinks traffic stops should only be made for reasons related to dangerous driving but its a lack of accountability that allows traffic stops to be misused.

Routine traffic stops based on minor violations, pretextual stops and stops made for reasonable suspicion should be prohibited, Ested said in 2021.

A narrowly defined set of violations, violent felony warrants and crime in progress should be permitted, according to Ested.

Unimpeded Mobility Increases Americas Economic Upward Mobility

American mobility has been impeded and restricted since the Supreme Courts ruling in Carroll v. United States (1925), which essentially stripped Americans of their Fourth Amendment rights.

The right to drive and the car gave Black Americans the ability to leave the south, women a chance to leave their homes and husbands and immigrants to find work anywhere throughout this county.

Carroll v. United States established and set a precedent for the subsequent rulings despite repealing Prohibition in 1933 and fueled mass incarceration in the United States.

Its not a coincidence that women, Black people, immigrants and poor people are the same groups still fighting for equal treatment.

Americas labor force is roughly 63 percent of its total population which is about 160 million people, according to Census data. Almost 120 million drive alone to work every day, with another 14 million carpooling.

Public transportation will not provide the utility to double that five percent, let alone offer transportation for half the country anytime soon.

If there were any way to be more efficient than private vehicles, American ingenuity would have figured it out. It has not, thus far.

The American highway system was the successor to the transcontinental railroad and the countrys primary mode of personal travel. It has provided personal mobility to every citizen and is responsible for creating the most productive economy in the world for over 120 years.

Now what happens when you cant afford to pay a low-level traffic ticket? Most places in the U.S. will pile on additional fees and interest charges, suspend your drivers license or even issue a bench warrant for your arrest, over a traffic stop.

Fees are a hidden, regressive tax that harshly punish hard-working families living paycheck to paycheck, according to the ACLU.

This is just one of the ways that fees in the justice system trap far too many people in a vicious cycle of debt and punishment.

Fines are devastating to families and entire communities and are disproportionately assessed against minorities and disadvantaged communities.

This system of traffic fines takes money directly out of the pockets of families who are least able to afford them, locking many individuals in a cycle of economic instability.

Improving American economic stability, reducing racial tensions and disparities, saving the lives of drivers and police officers and honoring constitutional protections are all being opposed by Californias law enforcement officials and district attorneys as long as they oppose SB 50 becoming law.

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Commentary: Police and District Attorneys Dont Want to Give Up ... - The Peoples Vanguard of Davis

From staff reports

Already on probation in Smyth County, a Rural Retreat man is facing new felonies after the Wythe County Sheriffs Office investigated thefts from a Cedar Springs Road residence.

Robert Adam Gore, 30, was arrested on April 1 and charged with being a felon in possession of a firearm, stealing a firearm, possessing burglary tools, grand larceny and trespassing.

According to a search warrant and arrest warrants, Gore is accused of taking a gun, tools and various household items from the residence on March 25 and March 30.

First Sgt. J.M. Blevins said deputies were dispatched to 5895 Cedar Springs Road for suspicious activity on March 30 when they detained Gore and another man, 37-year-old Allen Edward Tirado of Marion, who was charged with trespassing. A third person ran away, police said.

Officers had already taken a larceny report from the residence earlier in the month, and the victims had put out two trail cameras, one of which was stolen.

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The remaining camera, though, showed suspects entering the residence and pulling into the driveway in a dark pickup. Deputies found a black Ford pickup in the driveway on March 30, Blevins wrote.

In plain view sight in the passenger side of the vehicle was a green in color piggy bank which the victim stated was taken from inside the residence, Blevins wrote. The Ford F-150 matched the description of the vehicle which was on the trail camera the evening before.

Blevins said Gore admitted to removing items from the residence and taking them to his Rural Retreat residence.

Officers seized more than 100 items when they searched Gores Main Street property on March 30. The items included tools, jewelry boxes, lightbulbs, binoculars, ammunition, toilet paper, a tackle box and more, according to a search warrant.

Unemployed, Gore, who has a court-appointed attorney, is being held on a $5,000 bond.

His preliminary hearing has been set for May 11.

According to court records, Gore was convicted of drug distribution in Smyth County last September. He was sentenced to jail time and placed on probation for two years. His criminal record also includes charges of petit larceny, assault, drug possession and trespassing, according to court documents.

Former hotel manager convicted

A one-time general manager of Wythevilles Bolling Wilson Hotel pleaded guilty to credit card theft and forgery on Thursday.

As part of a plea agreement, 39-year-old Jessica Jean Dunsmore of Rural Retreat got a five-year suspended sentence and was ordered to repay William Smith $919.36.

She was also ordered to stay out of trouble for a year, during which time shes waiving her Fourth Amendment protections.

The commonwealth dropped five additional charges of credit card forgery.

According to an earlier search warrant, Wytheville police investigated Dunsmore related to 2021 fraudulent charges made on a credit card belonging to GW Hotel Tenant LLC and issued to Dunsmore. Smith is listed as the companys registered agent.

Police collected Appalachian Power records as part of the investigation.

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POLICE AND COURT BRIEFS: Rural Retreat man facing charges in ... - Southwest Virginia Today

Llano County has filed a no tice of appeal to federal Judge Robert Pitmans order last week that books removed from county library shelves be replaced, a lawyer for plaintiffs in the lawsuit said Monday.

Katherine Chiarello of Witliff/ Cutter PLLC in Austin said the books have been returned to the shelves. Pitman issued the temporary order Thursday, calling for librarians to replace books that county commissioners ordered removed.

The removal came last year after some library patrons charged some childrens books were inappropriate. Titles included I Need a New Butt! written by Dawn McMillan (illustrated by Ross Kinnaird) and Freddy the Farting Snowman, written and illustrated by Jane Bexley.

Other patrons sued in federal court, claiming that the removal violated first and fourth amendment rights of free speech and freedom from unlawful seizure.

The appeal will go to the U.S. Fifth Circuit Court of Appeals, based in New Orleans. However, the appeal could be heard after the actual trial date.

She said the temporary injunction was based on Pitmans belief that plaintiffs had shown a reasonable expectation of winning the case.

The evidence that we put in front of the judge was a two-day evidentiary hearing, she said. Based on the evidence we presented, he thought we had shown a likelihood of success. But we still need to win at trial.

If the plaintiffs succeed at the trial, Pitman will presumably issue a permanent injunction ordering the county to keep the books on the shelves.

Neither Jonathan Mitchell of Austin, attorney of record for the defendants, nor County Attorney Dwain Rogers immediately returned phone calls seeking comment.

Plaintiffs in the suit include Leila Green Little, Jeanne Puryear, Kathy Kennedy, Rebecca Jones, Richard Day, Cynthia Waring and Diane Moster.

Defendants in the suit are Llano County Judge Ron Cunningham, Llano County commissioners Peter Jones, Linda Raschke, Mike Sandoval and Jerry Don Moss, Llano County Library System Director Amber Milum and Advisory Board members Bonnie Wallace, Rochelle Wells, Rhonda Schneider and Gay Gaskin, president of the board.

Originally filed in federal court in San Antonio, the case was moved to Pitmans Austin court because he has jurisdiction over Llano County.

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Llano Co. to appeal order to return books - The Highlander