The Fourth Circuit issued a decision bolstering our 2nd Amendment rights. The case is styled USA v. Nathaniel Black, out of the Western District of North Carolina. Essentially, a guy who was a convicted felon was open carrying a firearm. He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm. But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?
The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity. The importance of this decision is that it protects our 2nd Amendment rights. If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc. The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).
Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
Several years ago, and again recently, I discussed my frustration at the lack of impartial coverage of high profile criminal cases in West Virginia by TV news media. If you watch our local news around here you will notice two things: lots of mugshots and lots of interviews of police officers. That’s just about all you will see. Of course there are two sides to every story, but you will never, never hear them. You will only hear the law enforcement side.
Recently I became involved in just such a case. The media got involved and started broadcasting stories that just did not portray the situation accurately. They were causing a big stink and provoking people to call the prosecutor and law enforcement to demand that the book be thrown at my client.
The client is a good person; well-liked by just about everybody who knows him. He has never been in trouble before. He was studying to become a police officer. In fact, he was days away from getting a job as a police officer when the news station decided to ruin his life. He was volunteering at a local school with the marching band. He has a concealed weapon permit and had a pistol in his truck. His truck broke down on school property and he had to hitch a ride home with a friend. So he made the mistake of taking the pistol out of his truck and taking it with him. He made the further mistake of showing his friend the pistol as he was taking it out.
Subsequently, the principal was apparently reviewing surveillance footage of the school grounds, and observed the gun. Band director gets fired for having an unauthorized volunteer. The media picks up on it, and eventually people think we have just narrowly-avoided a Columbine incident. A crazy man wielding a gun at a local school. Somebody has to pay.
I encountered the TV reporter in the courthouse. She informed me that she had uncovered the identity of the gun-wielding volunteer and was going to run a story on it that evening. I then offered to give an interview to try and set the record straight. So I did, and I explained the accurate circumstances, on video. Of course when the story was run that night there was a lengthy interview of a sheriff’s deputy explaining that my client had committed a felony and they were going to charge him for it. They also broadcasted his name, age, and the location of his residence. And that was it. Nothing else. No explanation from me. They chose not to include any of my interview. Of course I wasn’t surprised. That is how it usually goes. When your client is charged they show his mugshot and broadcast his name and other information. When he is acquitted it goes unmentioned.
The reason is this: if viewers were to hear my explanation, they would say, “Oh, what’s the big deal about that? They are going to charge this kid with a felony and ruin his life over that?” The story would lose its sensationalism.
Certainly the argument could be made that law enforcement and the prosecutor have no choice. The guy was caught on video possessing a firearm (unloaded) on school property. There is a statute in West Virginia that makes it a felony, with a 2 to 10 prison sentence and no opportunity at probation or parole for possessing a gun on school property, whether or not unloaded, or on any property upon which a school function is occurring. To contrast that with other crimes, that is the same penalty for wanton endangerment with a firearm, which is like shooting a gun at somebody and missing. Brandishing a firearm, which is like pointing a gun at somebody but not firing, is only a misdemeanor with a maximum sentence of one year. So to a certain extent we can blame the legislature for creating an overbroad and unfair law. And I do blame them. Most of them are too cowardly to stand up for common sense and freedom. Attach a school or domestic violence to any vice or allegation of misconduct, and you end up with a capital crime. But I think there is also a place for mercy.
The police do not have to charge, and the prosecutor does not have to prosecute. They have that discretion notwithstanding the legislature. Not every crime has to be punished – nor should it be. Many people would disagree with that. But let those persons throw the first stones who have not themselves committed a crime without being caught or without punishment. In the end it is up to people like me to be the voice of reason to a jury. We are the last and best hope and saving the lives of good people like this young man. It is a heavy burden. You will see things differently when it is your son or daughter, who is a good person, but who has made some sort of mistake and ends up on the receiving end of the criminal justice system. It’s not hard to do. There are so many criminal laws that I do not know them all. Do you think this kid thought that he may have been committing a felony when he took the gun out of his truck? Of course not, yet we are ruining his life as a result. There is a place for mercy and compassion in the court system. But no legislator, prosecutor, sheriff, or judge gets elected by promising mercy and compassion.
From the Beckley Register-Herald:
Note: Isn’t it just like big-government politicians, such as we have here in West Virginia, to give people the right to carry concealed weapons, and then apply a bunch of arbitrary rules that nobody will know or be able to follow? That’s just what West Virginia needs, more rules. Maybe we could get those signs that the State of Virginia has when you drive into it listing everything that the all-knowing politicians have declared as illegal. – John H. Bryan, West Virginia Criminal Defense Attorney.
Legislation on guns causing stir
CHARLESTON — Concealed weapons are making quite a bang in this legislative session.
One such proposal would conceal more than sidearms — it would keep a prying public from knowing just who has secured such permits. But that bill caused such a stir the House of Delegates pulled it off the calendar.
Over in the Senate, two other proposals embracing guns have surfaced.
Sen. Shirley Love, D-Fayette, is attempting to get the National Park Service to either recognize visitors who have concealed weapons permits — including non-residents — or post signs warning them their firearms aren’t allowed on federal land.
In his own measure, Sen. Clark Barnes, R-Randolph, wants to clear up language the attorney general’s office feels is a bit murky on the reciprocal agreements West Virginia holds with other states.
“We’re making lots of progress,” Barnes says. “But the attorneys from the attorney general’s office working on this say we need to clean up in our reciprocity to be able to open it up for other states’ licensees to be able to carry here, or our licensees to be able to carry in other states.”
Love says about 16 states honor West Virginia’s right to keep a hidden weapon on one’s person.
“We’re spending mega dollars to advertise for people to come into Fayette County and see ‘Wild, Wonderful West Virginia,’ and the New River Gorge, ride the whitewater or rock climb,” he says.
“But if you take that pistol off Fayette Station and go down into the gorge, and the NPS would stop you for speeding, they can say to you, ‘Do you have a weapon in your automobile? Do you have a weapon on you?’”
Since firearms are disallowed on federal property, the senator says, any visitor toting one inside the gorge could wind up behind bars, even though West Virginia recognizes such permits in the other states.
In his resolution, now before the Senate Natural Resources Committee, the senator is asking the NPS to at least post warning signs at park entrances if it cannot honor concealed weapons permits.
“That way you could separate the weapon and ammunition, put your weapon in the trunk of the car and lock it, and put the ammo in the glove compartment,” Love says.
“But there are no signs now. This could be entrapment.
“You could wind up probation for a year. It could cause you to lose your pistol permit and bring a fine.”
Love says a bill is pending in Congress to alter NPS regulations so that concealed weapons permits would be honored in the park system.
“But in the meantime, in places like the New River Gorge, let’s at least put signage up and amply warn people coming in from other states.”
The House bill was intended to protect victims of domestic violence by keeping secret their addresses after they file for concealed weapons permits. But concerns raised by the West Virginia Press Association over the public’s right to read public documents prompted the Democratic leadership to pull the bill.
Majority Leader Joe DeLong, D-Hancock, says the proposal can yet find its way back on the special calendar with two weeks left in the session if it can be tweaked to appease the Fourth Estate.
A year ago, the Legislature altered the state’s reciprocity bill, and the attorney general’s office began taking steps to conform, Barnes said.
“What we had to do in our original language is pretty much that their system had to be identical to our system. But there are some other states that don’t necessarily have an identical system but they may have a stronger system that operates differently. So we’re just trying to clean it up to make it more reciprocal with more states.”
From the Beckley Register-Herald:
Note: What public interest is there in the names and addresses of law-abiding citizens who obtain concealed weapons’ permits? And if there is legitimate public interest, then why must the addresses be included? Why not start publishing the names and addresses of welfare recipients? Taxpayer money is being funneled to it, government bureaucrats are administering it, and members of the public are receiving it. The answer: the Press supports expanded welfare programs, but does not support the 2nd Amendment. – John H. Bryan, West Virginia criminal defense attorney.
Concealed weapons bill in limbo in House
By Mannix Porterfield
CHARLESTON — Delegate Rick Moye packs a hidden piece for his personal protection but is ambivalent about a proposal to deny public access to concealed weapons permits.
Moye’s reservations aren’t unique in the House of Delegates.
This week, the Rules Committee yanked from the active House calendar legislation that would make it no one’s business just who is toting a firearm under a court-approved permit. The bill was offered by Delegate Bill Hamilton, R-Upshur, with 10 co-sponsors, among them Delegates Mike Burdiss, D-Wyoming, Joe Talbott, D-Webster, and Mike Porter, R-Mercer.
There is a chance, however, the measure might be tweaked so its scope is narrowed to the very people it was intended to protect — victims of domestic violence.
“I can see both sides of that story,” says Moye, a school bus driver and body shop owner in Raleigh County.
“I can understand why you wouldn’t want that to be public knowledge for everyone to know. On the other hand, it’s a public record. When do you draw the line that you can conceal information?”
Obviously, the Rules Committee had problems wrestling with that as well, especially after the West Virginia Press Association reared itself into the issue, Majority Leader Joe DeLong, D-Hancock, said Thursday.
“I’m not sure where we’re at in the process, but I hope we can go back and revisit that bill and put an exemption in it when it comes to victims of domestic violence,” he said.
“I think that was the original intent of the bill. I think that’s what spurred this legislation.”
Domestic violence victims secured concealed weapons permits, only to have their addressed revealed to the reading public by newspapers, the majority leader said.
“We may be able to carve out an exemption for those people without taking away what’s considered to be the general right of the public to have access to this information,” DeLong said.
“The problem is in trying to strike a balance. There’s a certain segment of people that we’re trying to help. We still need to help those people and protect them. At the same time, we want to recognize the freedom of the press in having this type of information available as it should be in most other cases.”
Moye said he has no problem with people knowing he is legally armed. Without elaborating, the delegate said he got the permit for his personal protection.
“I’m a firm believer in my rights to keep and bear arms,” Moye said.
“I’ll not shy away from that at all. I just feel like it is a right, a privilege that I have, and I will exercise that privilege. And I totally support the Castle Doctrine. Common sense tells me that if someone is going to come and harm me, I don’t want to run from them.”
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