Federal Jury Trial Acquittal


Looking back this weekend at one of the most memorable cases of my career, which ended a year ago today.

It was a federal mail fraud case in the Eastern District of California, Sacramento, court.  The US Attorney’s office in Sacramento had charged six defendants in the case, but by the time we started the trial on March 3, 2015, four of the six had pled guilty and agreed to testify against the other two.

The two remaining defendants were my client, Deborah Loudermilk, and a co-defendant named Buena Marshall, who was represented by Attorney Mark Reichel of the Sacramento law firm Reichel & Plesser.  Mark is a very experienced federal criminal defense attorney and former federal public defender who proved to be an excellent co-counsel in this difficult case.

The charges grew out of events that occurred in 2006 during the height of the home mortgage frenzy which ultimately led to the monumental mortgage meltdown of 2008.

The trial took 11 trial days over four weeks.  In the prosecution of the case, the government presented 26 witnesses and more than 300 exhibits.  It took more than 8 years to get the case to trial because the allegations were not even investigated until early 2010 and charges were not filed until October of 2011. During the more than three years that the case was pending, four of the original six defendants entered into “cooperative” plea agreements, by which they agreed to testify against the remaining defendants.

Among the prosecution witnesses were five convicted felons, including the four former co-defendants.  One of the highlights of the trial for the defense came during the testimony of one of these “cooperating witnesses”, who had to admit that my client was not the person he had thought the government investigators were referring to when they interviewed him and that he had never even met Miss Loudermilk. 

In my closing argument (which is reproduced below), I characterized the presentation of these witnesses as a “parade of the horribles”. In a discussion with the attorneys after the conclusion of the trial, a number of the jurors agreed, indicating that they had given little credence to the testimony of the convicted felons.

I also called the case the story of “Debbie and Goliath”, noting that it was investigated by the FBI and the IRS, and that the government was represented in court by three Assistant US Attorneys, a US Attorney’s paralegal and an IRS Special Agent.  Despite the government resources invested in the case, I characterized the investigation against my client as inadequate and a rush to judgment.  Among other things, I pointed out that the investigators failed to record interviews with the suspects and ignored exculpatory evidence provided by Loudermilk.

Unconvinced by the parade of witnesses and blizzard of exhibits (which included thousands of pages of documents), the jury took slightly more than one day to acquit my client of the two charges against her and Miss Marshall of the four charges against her.

During our post-trial discussion with the jurors, they said that they found the failure to record the interviews significant because my client testified that she did not make incriminating admissions described in the summary report prepared by the investigators and testified to in court by the IRS investigator. As a result, jurors indicated that they gave equal weight to the testimony of the investigator and Loudermilk, and therefore disregarded the purported admissions.

The jury foreman also indicated that the government had done a good job of proving the case against those who had already pled guilty, but that the investigation had “cast too wide a net” in ensnaring Loudermilk and Marshall, who were real estate agents in the six purchases at issue.

The case was charged as “mail fraud” because interstate mail services were used to send documents involved in the scheme, which was conceived and executed primarily by two of the co-defendants, Kadesta Harris and Temika Reed. The two received the bulk of the approximately $200,000 in “cash-back-to-buyers” payments that resulted from the six purchases.

Miss Loudermilk testified in her own defense, denying that she was aware that fraud was being committed or that she had any intent to defraud either the sellers or lenders involved in the two transactions in which she was served as an agent. Miss Marshall did not testify, but Mark Reichel in his argument contended that the evidence also failed to prove her participation in the scheme to defraud or that she had intended to defraud anyone.

In the end, the jurors agreed, concluding that the evidence did not show that either defendant had been a knowing participant in the scheme to defraud, that either had committed any act material to the fraud, or that either had exhibited any intent to defraud the lenders in these transactions.

The defeat was a rarity for the US Attorney’s Office, which routinely obtains convictions in nearly all of its cases. In 2014, the cases of 908 criminal defendants were concluded, with 902 of them being convicted, either through guilty pleas or jury verdicts. Only six were acquitted at trial.

It was also the first time in his 23 years on the federal bench that Judge Garland E. Burrell, Jr., had presided over a trial in which the defendants were acquitted.

The unusual acquittal was highlighted in some of the news coverage of the case, such as in the Sacramento Bee:

http://www.sacbee.com/news/local/crime/article16558673.html

After the trial, Summit Defense presented me with a plaque commemorating the win.

Summit Loudermilk Placque

Harris and Reed were finally sentenced just this month, with Harris getting 17 months in federal prison and Reed 13 months.

_____________________________________________

Webpage photo

Transcript of my closing argument in U.S. v. Loudermilk:Scan0030Scan0001Scan0002Scan0003Scan0004Scan0005Scan0006Scan0007Scan0008Scan0009Scan0010Scan0011

Scan0012Scan0013Scan0014Scan0015Scan0016Scan0017Scan0018Scan0019Scan0020Scan0021Scan0022Scan0023Scan0024Scan0025Scan0026Scan0027Scan0028Scan0031

Advertisements

“Civil Disobedience” in Utah


.

CIVIL DISOBEDIENCE IN UTAH

in response to the federal government’s shutdown of national parks, San Juan County in Utah has threatened to take over the national parks within its borders:

http://www.npr.org/blogs/thetwo-way/2013/10/09/231086726/county-in-utah-threatens-takeover-of-national-park-areas?utm_medium=Email&utm_campaign=20131013&utm_source=mostemailed

NPR: Utah County Threatens Takeover of National Parks

http://www.npr.org/blogs/thetwo-way/2013/10/09/231086726/county-in-utah-threatens-takeover-of-national-park-areas?utm_medium=Email&utm_campaign=20131013&utm_source=mostemailed

The NPR article opens with the following:

“San Juan County has become the fifth county in Utah to declare a state of emergency in response to the closure of National Park areas.

“But the San Juan County Commission has also decided to storm National Park Service barricades, take control of some parks, and reopen them to the public.

“‘This is civil disobedience,’ says Phil Lyman, a CPA and county commissioner from Monticello, Utah, in the southeastern corner of the state. ‘What’s happening to us is wrong.'”

San Juan County plans to use sheriff’s deputies, search and rescue volunteers, firefighters, EMTs, portable toilets, garbage trucks and three mobile command centers in its operation of the national parks.

Yes, this would be an act of civil disobedience … and I applaud it!  This is exactly what government should do in an emergency — step in and fix the problem.  Unfortunately, the bloated, arrogant, over-weening federal government doesn’t give a damn about the hardships that its “shutdown” has created for local communities. 

So, those local communities have to take it upon themselves to do what’s best for their people.  More power to ’em!

.

ARIZONA AGREEMENT

The state of Arizona has Reached an agreement with the federal government to re-open the Grand Canyon:

Grand Canyon Train Station 1981

Grand Canyon Train Station 1981

http://news.yahoo.com/grand-canyon-opens-state-fed-natl-parks-deal-194332701.html

Grand Canyon

Grand Canyon

.

THE FEDERAL GOVERNMENT & OTHER STATES

The federal government has also announced its willingness to cooperate with other states that want to reopen national parks:

http://www.usatoday.com/story/news/politics/2013/10/10/canyon-rushmore-shutdown-national-parks-interior/2962499/

Note the two caveats to this agreement, however:

“Interior Secretary Sally Jewell told state officials that she would consider agreements with governors who are willing to fully fund National Park Service personnel to reopen the 401 parks nationwide that have been closed since Oct. 1.”

And:

Blake Androff, an Interior Department spokesman, stressed that the state’s payments would be viewed as donations and would not be reimbursed unless Congress passed legislation to do so.”

In other words, we’re willing to let you do our job — a job that we can’t or won’t do, as long as you pay for it and don’t expect us to reimburse you.  What a shameful disgrace.

Puts me in mind on one of Thomas Jefferson‘s comments on government:

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”  See Note below.

It seems likely that Jefferson would approve of San Juan County’s plans to exercise some civil disobedience and “a little rebellion”.

_____________________________

Note:  The Jefferson quote is from a letter written by him from Paris on January 30, 1787, to James Madison.  The full text of the letter is available on the “Archiving Early America” website here:

http://www.earlyamerica.com/review/summer/letter.html

_____________________________

Grand Canyon Photos © 2013 Jim Reilly

Words of Wisdom from the Dugout


.

Clint Hurdle is the manager of the Major League baseball Pittsburgh Pirates.  This year, he has guided his team to its first winning season & first playoff appearance since 1992.  None of which would normally get him mentioned here.

However, Hurdle does something which politicians and lawmakers — indeed, everyone in the political-legal arena — would do well to emulate.  He inspires people.

One way he does this, every day, is by issuing a “Thought of the Day”, via his smartphone, to his players, their wives and friends, his friends and others — more than 1000 people around the world.

On September 9th of this year, his team was stuck at 81 wins — one shy of a winning season — and on a 4 game losing streak.  They would be playing the Texas Rangers that night and facing one of the best pitchers in the game.

In anticipation of this game, he sent the following “Thought of the Day”:

Tim Wrightman, a former All-American UCLA football player, tells a story about how, as a rookie lineman in the National Football League, he was up against the legendary pass rusher Lawrence Taylor. Taylor was not only physically powerful and uncommonly quick, but a master at verbal intimidation.

Looking Tim in the eye, [Taylor] said, “Sonny, get ready. I’m going left and there’s nothing you can do about it.”

Wrightman coolly responded, “Sir, is that your left or mine?”

The question froze Taylor long enough to allow Wrightman to throw a perfect block on him.

It’s amazing what we can accomplish if we refuse to be afraid. Fear — whether it’s of pain, failure or rejection–– is a toxic emotion that creates monsters in our mind that consume self-confidence and intimidate us from doing our best or sometimes even trying at all.

Make a difference today.

Love Clint

The anecdote about Tim Wrightman and Lawrence Taylor is interesting, but is neither the important part of this message nor the motivation for blogging about it.  Rather, it is the last full paragraph that moved me to write this.

Much of what passes for political discourse in the United States today — and what motivates laws and governmental procedures — is fear.  Fear of people:  terrorists, murderers, child molesters, religious zealots, virtually anyone who is perceived to be dangerous — or even just different.  Fear of things:  internationally, nuclear weapons — locally, guns.   Fear of equal rights for all people and of social change.

All too often, people respond to fear by seeking the protection of laws designed to prevent that which is feared.  And our politicians respond to the people by passing such laws, even when they are ineffective or, worse yet, counter-productive.

We seem to have forgotten the words of Franklin Delano Roosevelt’s first inaugural speech, “… the only thing we have to fear is fear itself.”  We are becoming a nation of sheepish ninnies, fearful and risk-averse.

We readily submit to laws which treat us like children, incapable of making our own decisions (such as the so-called “war on drugs” and the panoply of federal, state and local rules governing what, when and how much we can eat and drink). 

We readily submit to laws and procedures which supposedly make us “safer”, but actually subject us to insult, indignity and embarrassment, as we meekly submit to invasive searches and remove our belts and shoes before entering airport terminals, courthouses and federal buildings. 

We cannot even watch Clint Hurdle’s Pirates play baseball without first being stopped and searched in order to enter the stadium where the game is being played.

We Americans have a proud history of strength in the face of adversity and courage in the face of fear.  Our country was founded by men and women willing to defy the world’s reigning power and who pledged  to each other their lives, fortunes and sacred honor. 

It was built into the greatest country in the world by men and women who risked all to explore, settle and tame a continent;  who bravely fought and all too often died in war to protect our freedoms;  who explored the highest mountains and the ocean’s depths; who rode rockets into space and went to the moon;  and who made this “the land of the free and the home of the brave”.

Which takes me back to Hurdle’s message of the day on September 9th.  A message we should repeat to our political leaders and lawmakers … and one which we should insist that they have in mind when they make decisions about the well-being our of country and its people:

It’s amazing what we can accomplish if we refuse to be afraid. Fear — whether it’s of pain, failure or rejection–– is a toxic emotion that creates monsters in our mind that consume self-confidence and intimidate us from doing our best or sometimes even trying at all.

________________________________

For the full story of Clint Hurdle and his “Thought of the Day” messages, see this moving and inspirational story by Tom Friend of ESPN.com:

http://espn.go.com/mlb/playoffs/2013/story/_/id/9726637/pirates-manager-clint-hurdle-inspiring-others-daily&ex_cid=MyESPNToday_MostSent

Ge-stop-o & Frisk: Trashing the 4th Amendment in New York City


.

I have said before that I consider New York City Mayor Michael Bloomberg perhaps “the single most dangerous politician on the national scene these days.”   For that discussion, see my blog post “Trashing the Constitution in New York City”:

https://freelegaladvice.wordpress.com/2013/03/31/trashing-the-constitution-in-new-york-city/

Whatever doubt I might have had about that assessment has, thanks to Bloomberg’s dictatorial NYPD “stop & frisk” policy, reached the vanishing point.  And what is sad, if not downright frightening, is that a substantial percentage (41%) of Americans approve of the gestapo-like tactics being used by the NYPD in their implementation of this policy.

A YouGov.com poll on the subject is here:

http://today.yougov.com/news/2013/05/24/americans-divided-stop-and-frisk/

It shows that 41% of Americans (and 60% of self-described Republicans) approve of the stop & frisk policy, while 49% oppose and 10% are so oblivious that they have no opinion.
.

The Terry Stop & Frisk Law:

In 1962, the United States Supreme Court in the case of Terry v. Ohio, 392 U.S. 1 (1968), established the so-called stop & frisk law, which allows police to briefly detain a person if they reasonably suspect that person is involved in criminal activity.

For the full text of Terry v. Ohio, see note 1 below.

The “reasonable suspicion” standard is somewhat less than probable cause to arrest, but there must nevertheless be some specific reasonable suspicion that the person is engaged in criminal activity of some kind.  The Terry decision also held that police may do a limited search of the person’s outer garments for weapons IF they also have a reasonable and articulable suspicion that the person detained may be “armed and dangerous”.  Such a search for weapons is what is now called “stop & frisk”.

Note that the Terry decision allows such a “frisk” (search) only if the officer(s) have a “reasonable and articulable suspicion” that the person is armed.  It does not give carte blanche to frisk every detainee, as Mayor Bloomberg and the NYPD seem to think.

Nor does it allow NYPD officers to willy-nilly stop & frisk anyone they choose, for any or no reason.

.

Floyd v. City of New York

Protesters participate in a rally near the federal courthouse March 18 in New York. Lawyers for four men who say they were illegally stopped said many of the 5 million people stopped, questioned and sometimes frisked by police in the past decade were wrongly targeted because of their race.

Protesters participate in a rally near the federal courthouse March 18 in New York. Lawyers for four men who say they were illegally stopped said many of the 5 million people stopped, questioned and sometimes frisked by police in the past decade were wrongly targeted because of their race.

In the Southern District of New York federal case of Floyd v. City of New York, the plaintiffs are suing the city over the policy, which they claim has resulted in hundreds of thousands of unlawful stops, primarily (84%) involving blacks and Hispanics.  The plaintiffs asserted and tried to prove in a recently ended two-month trial, that the policy is nothing more or less than racial profiling.  The trial concluded on May 20, 2013, and post-trial submissions are due on June 13, 2013.

See notes 2 & 3 below for information about this case.

.

The Center for Constitutional Rights Expert Report

The 2012 Center for Constitutional Rights expert report on the subject of these stops (available through the link in Note 3 below), notes in part:

Race-based police stops, in violation of the Fourteenth Amendment Equal Protection Clause

* Blacks and Latinos are significantly more likely to be stopped than Whites. Overall, Blacks and Latinos constitute 84% of the stops, a far higher percentage than their proportion of the city’s population. Even after controlling for crime, local social conditions and the concentration of police officers in particular areas of the City, Blacks and Latinos are significantly more likely to be stopped than Whites.

* This is true at both the neighborhood and the individual level.

Unjustified stops, in violation of the Fourth Amendment protection against unreasonable search and seizure

* Analysis of the information recorded by police officers themselves in their stop and frisk reports indicates that more than 95,000 stops lacked reasonable, articulable suspicion and thus violated the Fourth Amendment.

* The NYPD continues to frequently and indiscriminately use the highly subjective and constitutionally questionable categories of “high crime area” and “furtive movements”. “High crime area” is checked off in more than 60% of all stops. A comparison of actual crime rates to the claim that a stop was in a “high crime area” reveals that this factor was cited at roughly the same rate regardless of the crime rate. “Furtive movement” was also checked in a majority of stops, 53% of them. Here, too, there was no correlation between the frequency of this stated reason for a stop and actual crime rates. Both the frequency of these classifications and their complete absence of any relationship to actual crime rates suggest strongly that they are not legitimate indicators or reasonable, articulable suspicion.

* Only 6% of stops result in arrest, an extraordinarily small number given that stops are legally supposed to be based on reasonable, articulable suspicion. The rates of seizure of weapons or contraband are miniscule – .12% of stops yield gun seizures and 1.8% contraband – and are lower than the seizure rates of random stops. (Emphasis added)

.

Justifications:  “High Crime Area” and “Furtive Movements”

During the time period 2004-2012, the NYPD averaged approximately 43,400 stops per month.

Anyone who has ever worked in either law enforcement, criminal prosecution or criminal defense knows that the assertion of “high crime area” (cited as justification for almost 61% of all stops) as the “reasonable suspicion” in support of detention is pure BS.  This would allow detention of anyone who happens to be in what the officers believe to be a high crime, regardless of whether there is any other reason to suspect that person of being involved in criminal activity.

Nor do “furtive movements” (cited in almost 54% of all stops) add anything to the “reasonable suspicion” that the individual is involved in criminal activity.  A sampler of “furtive movements” cited by NYPD officers in support of “stop & frisk” contacts, as described in the Floyd expert study, include such “suspicious activities” as:  riding a train, “looking around”, running from one train to another, crouching next to a vehicle, stopping “prematurely” for no reason, “evasive” movements or behavior, “hiding” in a room, holding an item “under a jacket”, “hanging out” in a lobby, “ducking in & out” of a building, “looking around”, looking “nervous”,  “furtive movements” by a wall, “furtive movements” with black marker, “hiding behind” other people, “evading” a bus driver, “hiding” between vehicles, and “looking around at” subway gates.

(Separate and apart from this expert study, I have personally seen police reports in which “furtive movements” justifying “stop & frisk” contacts were described as:  looking away or turning away from cops, walking away from cops, walking toward cops, putting one’s hands into pockets, taking one’s hands out of pockets, standing up from a squatting position, squatting down from a standing position, jerking one’s head from side to side, and simply making “suspicious” movements.)

.

Conclusion:  Blatant and Rampant Unconstitutionality

These statistics paint a compelling picture of blatant and rampant unconstitutionality in the implementation of the New York stop & frisk policy.  Nevertheless, Mayor Bloomberg commented, “I can’t imagine any rational person saying that the techniques are not working and that we should stop them.”

I’m not sure in what alternative reality Mayor Bloomberg’s “rational persons” must reside.  Or how 41% of Americans can logically come to the conclusion that this policy is a good idea … or constitutional … or even particularly effective.  It clearly is none of those things.

I consider myself a fairly “rational” person and I say, yes, Mayor Bloomberg, you should stop violating the constitutional rights of the citizens of your city.

_______________________

Note 1:  The full text of Terry v. Ohio is available here:

http://supreme.justia.com/cases/federal/us/392/1/case.html

Note 2:  For an NPR online article about Floyd v. City of New York, see:

http://www.npr.org/2013/05/20/185458137/court-case-winds-down-in-new-yorks-stop-and-frisk-challenge

Note 3:  The Center for Constitutional Rights webpage about this case is available here:

http://ccrjustice.org/floyd

This site contains links to all of the Floyd case expert reports and court documents, including the complaint, motions, declarations and court orders.  Anyone who is interested in this issue would do well to review the documents linked on this site.  I cannot begin to do justice to this material here in my blog.

More on the 2nd Amendment & Gun Control


 

My December 29th post “What Now for the 2nd Amendment and Gun Control?” …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

… motivated a lengthy and somewhat contentious email conversation among my West Point classmates.  There are several aspects of that conversation which I will address in my blog over the next few days, starting with some perceptive and pertinent comments and questions by Terry Atkinson.

First, Terry commented:  The logic behind the belief that the 2d amendment’s protection of an individual’s right to own arms is limitless eludes me. If one truly believes that, as Jim states fairly unequivocally in his blog discussion, then it must follow that ‘arms’ such as M109 howitzers  enjoy the same protection as handguns or semiautomatic weapons. It seems to me, however, that the logic would also cover such weapons as nuclear weapons and, let’s say, B-1 bomber delivery systems. If, indeed, you all belief that, it seems to me that your logic fails the common sense test.  I can’t imagine any country that allows its citizens unfettered access to say nukes, thousand pound bombs, napalm canisters, sarin gas canisters, cobra gunships with flechette rockets, or any number of mass-killing weapons would last.

Actually, my “strict construction” view of the 2nd Amendment does not envision a “limitless” right to own weapons.  In fact, a strict construction reading of the amendment’s language makes clear that it does not apply to modern warfare weapons such as howitzers, nukes and bombers.

A thorough analysis of the 2nd Amendment requires a thorough review and understanding of the amendment’s language and what that language meant at the time it was ratified.  To be a “strict constructionist”, one must strictly construe the entirety of the particular constitutional provision being discussed.  Therefore, to respond to Terry’s first point, it is primarily necessary to understand what the term “to keep and bear arms” meant when the 2nd Amendment was ratified in 1791.

First and most important, what did the word “arms” mean at that time?  Historical commentary and arguments both for and against the adoption of this amendment make it clear that by “arms”, the author of the Bill of Rights (James Madison), and those who voted to ratify it, meant weapons that were neither designed for military use nor typically put to such use.  By “arms”, the amendment was intended to refer to personal weapons, such as pistols, rifles and shotguns.  It clearly was not intended to refer to military-style, 18th century artillery pieces and, by analogy, cannot now be thought to refer to the 21st century successors to such military weapons.

The phrase “to keep and bear” arms confirms this interpretation.  To “keep … arms”, of course, means nothing more than to be able to have them in one’s possession.  At the writing of the 2nd Amendment, “to bear” meant “to carry”.  Although that term is now somewhat archaic, it clearly refers to weapons which an individual could carry with him on his person.

Thus, the phrase “to keep and bear arms” meant (and means) that the government cannot infringe “the right of the people to have and carry personal weapons such as pistols, rifles and shotguns”.

This would currently exclude from constitutional protection such weapons as fighter aircraft, naval ships and weapons, artillery pieces, napalm, nukes & other bombs, as well as even such lesser weapons as 50 caliber machine guns, shoulder mounted rocket launchers, flamethrowers, hand grenades and most other military-style weapons.

The US Supreme Court holding in District of Columbia v. Heller, 554 U.S. 570 (2008), reached the same conclusions.  The court in Heller said that the previous Supreme Court decision United States v. Miller, 307 U.S. 174 (1939), did not “limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes”.  The court went on to find support for this conclusion in what it called the “historical tradition” of prohibiting the carrying of  “dangerous and unusual” weapons.

Terry’s second comment:  If you don’t believe that nukes and these other weapons enjoy the protection of the 2d amendment, then it seems to me you are recognizing a limitation to the amendment — a limitation that does not appear to be written into the ‘strict constructionist’s’ reading of the amendment. Logic then suggests that there ARE limits to the constitutional right based on ‘reasonableness’ or current conditions or changing societal mores or something. If true, it seems to me the issue is no longer whether the 2d amendment prevents the government from restricting arms ownership but rather a question of where the line of reasonableness is drawn. This, IMO, is an entirely different argument and one that I can understand.

As should be clear from my preceding comments, I do not believe that nukes and other military weapons are protected by the 2nd Amendment.  I disagree, however, with Terry’s conclusion that this implies a “limitation” on the 2nd Amendment’s protections.  Rather, my “strict construction” interpretation of that amendment is that such weapons were not then and were never intended to be covered by the 2nd Amendment.  A true “strict construction” of the amendment still leads to the conclusion that the government cannot infringe on “the right of the people to keep and bear arms”, within the original meaning of that language.  This reading has nothing to do with “reasonableness”, current conditions or changing societal mores.

Nevertheless, the end result is, with respect to military style weaponry, the same and it appears that Terry & I agree that the government can constitutionally restrict individual access to, or possession and use of, such weapons.

Terry’s third point was in the form of a question, and a very good one, at that:  Where in the 2nd amendment or constitution for that matter does it state that the rights stated therein do not cover persons who have committed crimes or are diagnosed with mental illnesses? My “strict interpretation” of the Constitution tells me that anyone can own a weapon whether they have a criminal past or not. Isn’t that right?

Answering this question requires further analysis — initially, what governmental action would “infringe” on the individual’s right to bear arms?  Or, in simpler terms, what did (does) the word “infringe” mean?

The oldest definition I can find is from Webster’s Dictionary of 1828, which likely reflects fairly closely what the word meant in 1791:

1.     To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or a private person infringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done.
2.     To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.

With this meaning of “infringe”, a “strict construction” interpretation of the 2nd Amendment would be that the government cannot “break or violate” (or perhaps “deny”, as in “neglect to fulfill”) “the right of the people to have and carry personal weapons such as pistols, rifles and shotguns”.

What the 2nd Amendment itself does not address, however, and what must then be considered both in terms of the contemporaneous understanding of what the amendment meant and what it must be understood to mean now is whether or not, and if so, how a particular person can lose his constitutional rights, including his “right to keep and bear arms”.

Although neither the Bill of Rights nor the Constitution proper address that possibility, there are constitutional provisions which provide guidance in this regard.  Article I, section 8,  and Article III, section 3, empower Congress to define certain federal crimes and to establish the punishment to be imposed for violations thereof.  Article III, section 2, and Article IV, section 2, acknowledge that the states have the authority to define crimes and punishments.  Furthermore, it is clear that all of the Founding Fathers of this country, and probably the vast majority of the populace, recognized that the government could revoke even the “inalienable rights” of the people by fining, imprisoning or, in extreme cases, executing those who violated the laws of the country or the states.

Clearly, the right to “life, liberty and the pursuit of happiness” could be forfeited by those who committed crimes.  There is neither any logical reason nor any historical interpretation by which it could be concluded that the 2nd Amendment “right to keep and bear arms” was somehow exempted from forfeiture as a result of a sufficiently serious criminal conviction.  Nor is there any logical reason to conclude that this right cannot now be forfeited for the same reason.

Thus, as a general proposition, a person who has committed a sufficiently serious (felony) crime no longer has a right to keep and bear arms to be infringed.  And governmental restriction of that person’s access to firearms or other weapons would not violate the 2nd Amendment.

I do have personal reservations about the constitutionality of the extensions of this concept being enacted by some states, including denial of access to firearms based on misdemeanor criminal convictions, such as domestic violence.  That, however, is really a subject for a separate discussion at another time.

With respect to the remainder of Terry’s question in this regard, the issue of denying 2nd Amendment rights to people suffering from mental illnesses is constitutionally troublesome.  There is nothing in the Constitution by which it can be inferred that either the federal or state governments have lawful authority to revoke the rights of a person due to mental illness.

Nevertheless, it was common practice in the 1700s and early 1800s for local government to confine the mentally ill to either jails or poorhouses.  Since the Constitution does not otherwise address the issue, it must be understood in the context of the times.  The implication of this historical perspective, of course, is that the mentally ill could, on that basis alone, lose some or all of their “rights”.  Presumably, Madison and those who ratified the Constitution and the Bill of Rights, were aware of this common practice and had it in mind when formulating and ratifying those documents.

Therefore, a strict construction of the 2nd Amendment would also require that it be understood in that context.  Which means that the mentally ill, like convicted felons, can be thought of as not having any 2nd Amendment right to be infringed by governmental action.

There are, of course, other issues with respect to the 2nd Amendment, such as whether or not licensing requirements and concealed carry restrictions are constitutional or whether it is constitutionally permissible to restrict the carrying of weapons into certain places (such as public buildings).  And there is the question of whether gun control is a meaningful and effective way of dealing with the problem to begin with.  I will address some of these issues in future blog posts.

__________________________________________

The full 157 page opinion of the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), is available here:

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

The Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), is available here:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html

English as our “Official Language”?


My youngest sister Suzie sent me this question today:

Jim, I’m sure you’ve heard of or seen this email before. I’ve received it several times. Do you have any idea why these Senators would vote against English as the official language of the US.

Continue reading

The 1st Amendment — Dialog on Religion & Government


My recent posts here regarding Randy DeSoto’s The Conservative Voice columns were an outgrowth of an ongoing conversation among a group of West Point graduates regarding 2008 presidential election issues. John Sloan, Class of 1955, a frequent contributor to this discussion, provided a lengthy and thoughtful comment on my post on the role of religion in government, to which I will respond here.

Continue reading

California Anti-Gay Marriage Initiative


Today I received the following email and inuiry from a fellow West Pointer, Ed Colchado, Class of ’76:

Jim,

What is your opinion of recently filed suits to bar the November initiative on the basis that the “measure would change the state’s Constitution so profoundly that it would amount to a revision. Under the law, the Constitution cannot be revised by initiative alone – a two-thirds legislative approval is also needed before the measure goes to the voters.”

Continue reading

Point-Counterpoint with Randy DeSoto


I have received an email from Randy DeSoto regarding his column on the California gay marriage case, to which I respond here:

Continue reading

Child Porn & Federal Forfeiture Law


Regarding child pornography, AB of Pennsylvania wrote:

“2 yrs ago. I was accused of child porn. They took at least $7.000 worth of software and hardware and I never got any of it back. Can someone help me get it back? I am now charged with porn and thats it. I have not been sentenced yet. A few months I would guess. Thanks.”

Continue reading

U.S. Supreme Court: Child Porn Purveyors Beware


The U.S. Supreme Court today warned purveyors of child pornography to beware, holding that the 2003 PROTECT Act constitutionally criminalizes promotion of such material.

In an opinion by Justice Antonin Scalia, the court held 7-2 that “offers to provide or requests to obtain” child pornography are not protected by the First Amendment, even if no actual child pornography is involved in the proposed transaction.

Continue reading