Now the fisking on North Carolina's SB 919 as promised.

For the history of the Bill in its path through the N.C. legislature look here.

To read SB 919, the Homicide Prevention Act/Domestic Violence in it's entirety look here.

Now the fisk...


GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2003


SENATE BILL 919
RATIFIED BILL


AN ACT TO ENHANCE THE SAFETY OF VICTIMS IN SERIOUS DOMESTIC
VIOLENCE CASES.

Wait - they are gonna provide firearms & instructions on their proper use to domestic violence victims??? Oh yeah, a bill's title doesn't have to have anything to do with its contents.

The General Assembly of North Carolina enacts:

SECTION 1. Chapter 50B of the General Statutes is
amended by adding a new section to read:
"§ 50B-3.1. Surrender and disposal of firearms;
violations; exemptions.
(a) Required Surrender of Firearms. - Upon
issuance of an emergency or ex parte order pursuant to this
Chapter, the court shall order the defendant to surrender to the
sheriff all firearms, machine guns, ammunition, permits to
purchase firearms, and permits to carry concealed firearms that
are in the care, custody, possession, ownership, or control of
the defendant if the court finds any of the following
factors:
(1) The use or threatened use of a deadly
weapon by the defendant or a pattern of prior
conduct involving the use or threatened use of
violence with a firearm against persons.
(2) Threats to seriously injure or kill
the aggrieved party or minor child by the
defendant.
(3) Threats to commit suicide by the
defendant.
(4) Serious injuries inflicted upon the
aggrieved party or minor child by the
defendant.

If it was only item number 4 & part of number 1 (where it speaks of actual use) then I might see this as useful, but to include threats implies that those threats can be established solely on the word of the person seeking the order. But as written is has the potential to be a tool in the hands of vindictive people who are in no way threatened. I can certainly believe that more than one person in NC would use this solely to make their ex miss out on hunting season. Or ruin a gunsmiths or gun dealers business.

But more on the machine gun language towards the end.

(b) "Ex Parte or Emergency Hearing. - The court
shall inquire of the plaintiff, at the ex parte or emergency
hearing, the presence of, ownership of, or otherwise access to
firearms by the defendant, as well as ammunition, permits to
purchase firearms, and permits to carry concealed firearms, and
include, whenever possible, identifying information regarding
the description, number, and location of firearms, ammunition,
and permits in the order."

This hearing would exclude any & all input from the person who is to be the object of a restraining order. The idea is that some situations are so time critical that waiting for the defendant (i.e. the person who would be the object of the restraining order) to be notified & appear would endanger the plaintiff (the one seeking the restraining order). Of course this assumes that restraining orders actually stop people from committing crimes. But I can see the necessity for this in certain, very limited situations.

Asking the plaintiff for any info on the presence of weapons & ammunition may not seem like a bad thing, but wait till we get to the next part.

"(c) Ten-Day Hearing. - The court, at the 10-day
hearing, shall inquire of the defendant the presence of,
ownership of, or otherwise access to firearms by the defendant,
as well as ammunition, permits to purchase firearms, and permits
to carry concealed firearms, and include, whenever possible,
identifying information regarding the description, number, and
location of firearms, ammunition, and permits in the order."

So correct me if I'm wrong, NC law provides for a hearing to be held ten days after an emergency protection order is issued. At this hearing the person restrained by the order has a chance to speak his mind.

However, asking him about what firearms he has is problematic. Practically his answers will be compared with those of the plaintiff & should any discrepancy arrive as to how many weapons he has or had then it's very likely that the judge will issue a search warrant to find out if he has weapons that he's not telling about.

There's another problem with this but I'll save that for the end.

"(d) Surrender. - Upon service of the order, the
defendant shall immediately surrender to the sheriff possession
of all firearms, machine guns, ammunition, permits to purchase
firearms, and permits to carry concealed firearms that are in
the care, custody, possession, ownership, or control of the
defendant. In the event that weapons cannot be surrendered at
the time the order is served, the defendant shall surrender the
firearms, ammunitions, and permits to the sheriff within 24
hours of service at a time and place specified by the sheriff.
The sheriff shall store the firearms or contract with a licensed
firearms dealer to provide storage."

So the defendant will be required by law to surrender all firearms & ammunition. The sheriff will then either store them his/herself or contract with a gun dealer to store them. I know some NC gun dealers who are already basing their future purchases on fees for storing weapons under the provisions of this law. (yes I know some shady NC gun dealers - not the 'selling guns to felons' kind of shady, but the 'mark it up 50% then offer you 10% off' kind of shady.)

"(1) If the court orders the defendant to
surrender firearms, ammunition, and permits, the
court shall inform the plaintiff and the defendant
of the terms of the protective order and include
these terms on the face of the order, including
that the defendant is prohibited from owning,
possessing, purchasing, or receiving or attempting
to own, possess, purchase, or receive a firearm for
so long as the protective order or any successive
protective order is in effect. The terms of the
order shall include instructions as to how the
defendant may request retrieval of any firearms,
ammunition, and permits surrendered to the sheriff
when the protective order is no longer in effect.
The terms shall also include notice of the penalty
for violation of G.S. 14-269.8."

Please note that it says the defendant has to be informed of how he/she "may request" the return of his property once the protective order is no longer in effect. That means that once any & all restraining orders expire you don't get a call or letter from the sheriff telling you to come pick up your shootin' irons. You must take action yourself when the restraining order expires.
Now practically speaking this shouldn't be a big deal, depending upon the action required. I know the second a protective order expired (as in 12:01 a.m.) I'd be at the sheriff’s office wanting my property returned. But still I'm not happy that the sole burden of retrieval seems to be on the defendant.


"(2) The sheriff may charge the defendant a
reasonable fee for the storage of any firearms and
ammunition taken pursuant to a protective order.
The fees are payable to the sheriff. The sheriff
shall transmit the proceeds of these fees to the
county finance officer. The fees shall be used by
the sheriff to pay the costs of administering this
section and for other law enforcement purposes. The
county shall expend the restricted funds for these
purposes only. The sheriff shall not release
firearms, ammunition, or permits without a court
order granting the release. The defendant must
remit all fees owed prior to the authorized return
of any firearms, ammunition, or permits. The
sheriff shall not incur any civil or criminal
liability for alleged damage or deterioration due
to storage or transportation of any firearms or
ammunition held pursuant to this section."

So after they take your property & all restraining orders expire they want you to pay to get your property back. In other words if you're squeaky clean & everything turned out to be a judge erring on the side of caution then before you can recover your firearms you have to pay the sheriff.

& I've been arguing this a lot lately with some friends, but just what constitutes 'reasonable'? For some sheriffs I'm sure they'd think $100 per month per gun was reasonable. My idea of reasonable in this situation can also be defined as the sheriff paying me $100 a month for taking my firearms (out of his own pocket so as not to burden the taxpayers any further).

& to top it all off, the sheriff is immune from criminal or civil action if any of the firearms that were taken from you were damaged - after you paid for their supposed storage! Under that language a sheriff could take a drill & a blowtorch to every single one of your firearms, let them soak in saltwater & then after collecting his fee give the firearms to you in a large bag.

"(e) Retrieval. - If the court does not enter a
protective order when the ex parte or emergency order expires,
the defendant may retrieve any weapons surrendered to the
sheriff unless the court finds that the defendant is precluded
from owning or possessing a firearm pursuant to State or federal
law."

Sounds o.k. doesn't it? You get to start whatever steps are necessary to get your firearms back if there's no further restraining order against you after the emergency order expires.
Course where it gets sticky is the 'state or federal' law language. If I remember correctly in NC a felon may keep a firearm at his/her home (& solely at the home) for defense of life at the home. It’d be interesting to see if a NC judge would opt to go with the stricter federal guidelines or not.

"(f) Motion for Return. - The defendant may request
the return of any firearms, ammunition, or permits surrendered
by filing a motion with the court at the expiration of the
current order and not later than 90 days after the expiration of
the current order. Upon receipt of the motion, the court shall
schedule a hearing and provide written notice to the plaintiff
who shall have the right to appear and be heard and to the
sheriff who has control of the firearms, ammunition, or permits.
The court shall determine whether the defendant is subject to
any State or federal law or court order that precludes the
defendant from owning or possessing a firearm. The inquiry shall
include:
(1) Whether the protective order has been
renewed;
(2) Whether the defendant is subject to
any other protective orders; or
(3) Whether the defendant is disqualified
from owning or possessing a firearm pursuant to 18
U.S.C. § 922 or any State law.
The court shall deny the return of firearms, ammunition, or
permits if the court finds that the defendant is precluded from
owning or possessing a firearm pursuant to State or federal
law."

So if the protection order expires then not only must you go through another hearing, but the plaintiff who started all this & the sheriff will be there. & there's a 90 day time limit for this. That's gotta suck for active duty military who are called out of country for more than 90 days at a time.
But there is still the question of whether state or federal law would take precedent in the case of a convicted felon, although the implication seems to be that they're to look closely at federal law as it's specifically mentioned.

"g) Motion for Return by Third-Party Owner. - A
third-party owner of firearms, ammunition, or permits who is
otherwise eligible to possess such items may file a motion
requesting the return to said third party of any such items in
the possession of the sheriff seized as a result of the entry of
a domestic violence protective order. The motion must be filed
not later than 30 days after the seizure of the items by the
sheriff. Upon receipt of the third party's motion, the court
shall schedule a hearing and provide written notice to all
parties and the sheriff. The court shall order return of the
items to the third party unless the court determines that the
third party is disqualified from owning or possessing said items
pursuant to State or federal law. If the court denies the return
of said items to the third party, the items shall be disposed of
by the sheriff as provided in subsection (h) of this section."

So if you have a friend or relative's guns or ammo then within 30 days that third party can ask the court to have his guns returned. But the plaintiff will be notified & have a chance to speak at the hearing, along with the sheriff. However it does say the court shall surrender the items to the third party unless said third party is somehow disqualified from owning or receiving firearms.
Of course this too would suck for someone out of town for a month or longer as there is a 30 day time limit.
If the third party request is denied (or by implication if said third party doesn't make the request for their return in time) then it's up to the sheriff as to how they are disposed of.

"(h) Disposal of Firearms. - If the defendant does
not file a motion requesting the return of any firearms,
ammunition, or permits surrendered within the time period
prescribed by this section, if the court determines that the
defendant is precluded from regaining possession of any
firearms, ammunition, or permits surrendered, or if the
defendant or third-party owner fails to remit all fees owed for
the storage of the firearms or ammunition within 30 days of the
entry of the order granting the return of the firearms,
ammunition, or permits, the sheriff who has control of the
firearms, ammunition, or permits shall give notice to the
defendant, and the sheriff shall apply to the court for an order
of disposition of the firearms, ammunition, or permits. The
judge, after a hearing, may order the disposition of the
firearms, ammunition, or permits in one or more of the ways
authorized by subdivision (4), (4a), (5), or (6) of G.S. 14-
269.1. If a sale by the sheriff does occur, any proceeds from
the sale after deducting any costs associated with the sale, and
in accordance with all applicable State and federal law, shall
be provided to the defendant, if requested by the defendant by
motion made before the hearing or at the hearing and if ordered
by the judge."

So if you're disqualified from owning or possessing firearms the sheriff gets to dispose of your firearms in a certain manner. You do get the cash from any sale, minus a cut off the top to cover the sheriff's expenses.
But the above also applies if you don't file your request to have your firearms back within the time allotted, or if you can't pay for the sheriff's 'reasonable storage fees' within 30 days of asking for your firearms back. Nice racket ain't it?

"(i) It is unlawful for any person subject to a
protective order prohibiting the possession or purchase of
firearms to:
(1) Fail to surrender all firearms,
ammunition, permits to purchase firearms, and
permits to carry concealed firearms to the sheriff
as ordered by the court;
(2) Fail to disclose all information
pertaining to the possession of firearms,
ammunition, and permits to purchase and permits to
carry concealed firearms as requested by the court;
or
(3) Provide false information to the court
pertaining to any of these items."

More on this one at the end.

"(j) Violations. - In accordance with G.S. 14-
269.8, it is unlawful for any person to own, possess, purchase,
or receive or attempt to own, possess, purchase, or receive a
firearm, as defined in G.S. 14-409.39(2), machine gun,
ammunition, or permits to purchase or carry concealed firearms
if ordered by the court for so long as that protective order or
any successive protective order entered against that person
pursuant to this Chapter is in effect. Any defendant violating
the provisions of this section shall be guilty of a Class H
felony."

So if you have a box of .22 Long Rifle cartridges or a shotgun shell hiding behind a box in the closet while a restraining order is in effect & they find out, then you too could be a felon. & I'll spare y'all the usual rant about the absurdity of making mere possession of a firearm a crime at all.

"(k) Official Use Exemption. - This section shall
not prohibit law enforcement officers and members of any branch
of the United States armed forces, not otherwise prohibited
under federal law, from possessing or using firearms for
official use only."

But of course, cops & soldiers are exempt while on duty.
If having a restraining order is such an indication of violent, potentially criminal behavior, then isn't it just a little disturbing that they feel the need to specifically exempt cops & soldiers from this law? Either the restraining orders are not that big of a deal or the standards for our police & military have gone downhill. I'm inclined to believe the former, but I am still disturbed that the legislators thought it necessary to exempt police & military. Is it their opinion that a lot of cops & soldiers get restraining orders filed against them? Or do they simply feel any agent of the government should not be burdened with the laws they enact against mere citizens?

& what about the citizen who wants to perform his duty? Ya know, the duty of protecting yourself, your family & community. On general principles I have problems with any law that excepts someone from criminal activity simply because they work for the government.


"(l) Nothing in this section is intended to limit
the discretion of the court in granting additional relief as
provided in other sections of this Chapter."

The question I have is who is the object of relief they refer to here? Does this mean the plaintiff may seek additional relief? Or does it mean the defendant may seek additional relief? Or does it mean both? Being in a time crunch I will have to wonder for a while. At least until I have the time & motivation to go over the rest of that Chapter.


SECTION 2. G.S. 14-269.8 reads as rewritten:
"§ 14-269.8. Purchase [or possession] of firearms by
person subject to domestic violence order prohibited.
(a)XItX [In accordance with G.S. 50B-
3.1,] it is unlawful for any person to Xpurchase or
attempt to purchase any gun, rifle, pistol, or other firearm
while there remains in force and effect a domestic violence
order issued pursuant to Chapter 50B of the General Statutes,
prohibiting the person from purchasing a firearm.X
[own, possess, purchase, or receive or attempt to own, possess,
purchase, or receive a firearm, as defined in G.S. 14-409.39(2),
machine gun, ammunition, or permits to purchase or carry
concealed firearms if ordered by the court for so long as that
protective order or any successive protective order entered
against that person pursuant to Chapter 50B of the General
Statutes is in effect.]
(b) Any person violating the provisions of this section shall
be guilty of a Class H felony."

The words or sentences surrounded by brackets [ ] are what's been added to the law. The words or sentences surrounded by capital X’s are what has been crossed out of the law. I really have to break down & learn how to underline & cross stuff out one day.

Before this law it was only unlawful to attempt to purchase or attempt to purchase a firearm while there was an active restraining order against him/her. Thus one may have kept any & all firearms one had. You just couldn't buy anything new. But now it includes possession & not just of firearms, but ammunition as well. & not only the act of possession, owning, receiving, or purchasing but any attempt to do so.

" SECTION 3. This act becomes effective December
1, 2003, and applies to offenses committed on or after that
date.
In the General Assembly read three times and ratified
this the 10th day of July, 2003."

So it passed both houses & once the governor signs it it'll take effect on December 1rst, 2003.

Now on to the stuff I said I'd get to at the end.

One additional question is raised by this law, but it only would apply to a subset of firearms owners. If I remember correctly the NFA of '34 requires that any person who possesses a firearm affected by the act (short barreled shotgun or rifle, a machine gun or a silencer) must receive BATF approval prior to moving the weapon to another location (trips to the range & gunsmith excepted). The request must be made in writing & the approval granted before any move or transfer of the firearm in question is made. Violating this section is a felony. So it is conceivable that SB 919 may require a person to transfer a firearm in violation of the NFA of '34. Which would mean if you don’t comply with SB 919 then you’re likely to be charged with a felony under its provisions, but if you do comply without getting prior BATF approval then you’re likely to be charged with a felony under the NFA of ‘34? It all hinges on exactly how quick the BATF will grant approval. Interesting dilemma isn't it? Face state charges or face federal charges.

But this question pales in comparison to what comes next.


SB 919 violates the U.S. & North Carolina Constitutions. There's a conflict. & not just in the usual way about restricting &/or prohibiting a person from exercising their Right to arms. It's unconstitutional in a way that the courts will actually recognize. In fact they have to.

Ya see, section 1 c says that the court will inquire about any & all firearms & ammunition the defendant has. That's not great IMHO but it's not unconstitutional.
However contrast that with Section 1 i 1 & 2. I'll reprint the relevant part below for your convenience:


"(i) It is unlawful for any person subject to a
protective order prohibiting the possession or purchase of
firearms to:

(1) Fail to surrender all firearms,
ammunition, permits to purchase firearms, and
permits to carry concealed firearms to the sheriff
as ordered by the court;

2) Fail to disclose all information
pertaining to the possession of firearms,
ammunition, and permits to purchase and permits to
carry concealed firearms as requested by the court;"

How is that unconstitutional you may ask?

Let me print the relevant part of the constitution for you:

"Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Still don't see it? Here's the most direct hint I can give you:

"...nor shall be compelled in any criminal case to be a witness against himself..."

That's right. SB 919 makes it unlawful to with hold information about yourself. That violates the 5th Article of the Bill of Rights. You cannot be made to be a witness against yourself, but SB 919 clearly states that should you with hold any information about firearms or ammunition in your possession, then you are subject to a felony charge.

But don't take my word for it. I refer you to Haynes v. United States, 390 U.S. 85 (1968).

In Haynes the Supreme Court held that a registration requirement violated the 5th Amendment when that registration could be used to pursue further charges. There is no difference in requiring someone to register their firearms, especially those they may not be lawfully entitled to have & requiring someone to inform a judge about their firearms, which under the conditions of SB 919 may be unlawful for them to have.

SB 919 provides that a person who does not comply with this law is guilty of a class H felony. That is compelling someone to comply with this law, including the section that requires a person to give information that may be used against him/her in a criminal proceeding.

SB 919 conflicts with the 5th Amendment to the U.S. Constitution & the Supreme Court's decision in Haynes. Barring any new angles all inferior courts are required to follow the decisions made by the Supreme Court, for good or bad.

Now if any of you who cannot stand the sound of sheep find fault with this analysis please let me know. But if I'm not mistaken this law is in conflict with the Constitution's provisions against compelled self-testimony.

& The N.C. Constitution contains this little gem:

"Sec. 23. Rights of accused. In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty. "

So this law is in conflict of 2 constitutions. But wait, there's more.

Again from the N.C. Constitution I offer you this:

"Sec. 25. Right of jury trial in civil cases. In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable."

Now this is a bit shady because it clearly mentions civil cases as opposed to criminal, but it does seem to state that in any matter concerning property that a jury, not a judge shall make the final decision. So the only question is whether or not the forfeiture of a person's firearms with no criminal prosecution would constitute a civil proceeding.

& I fear my reputation would suffer if I didn't include this part of the North Carolina Constitution:

"Sec. 30. Militia and the right to bear arms. A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty. they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice."

Just as with the U.S. Constitution's prohibition on government infringing upon the Right to own & possess weapons, the N.C. Constitution protects the citizen from having their Right to Arms infringed. (Although I find the language concerning concealed weapons to be an infringement of the Right to Arms& as such contradictory with the preceding section of that amendment).

In summation not only do I find SB 919 to be burdensome on those who would not commit crimes of violence, but pretty damned useless against ones that would. It's not based on good sound policy & is on its face in conflict with the N.C. & U.S. Constitution's provisions concerning compelled testimony.

Consequently I am not satisfied with the NRA's explanation of their actions concerning this bill. They either didn't bother to read it fully before they decided not to oppose it (not making a decision either way is still failing to oppose it), their interests wouldn't have been served by it's failing to pass or it's passage served some purpose of theirs.

No matter what the NRA's motivations were, with the passage of SB919 North Carolina is in a worse state than when I left it. For this I am truly sorry.

I received the following in the mail from Gunner, a frequent reader & commenter here. In fact he rounds out my steady readership to 4 (including the cats & myself).

The Following is the e-mail he received from the NRA in response to his questions about the NRA lawsuit against GRNC that I posted about previously.


"You've got a bigger beef with GRNC than you have with NRA. You just can't
understand what they are doing. I, too, have been bothered by the recent claims
of GRNC. Consequently, the NRA has put together a few things that I can share
which might shed a little more light on what the situation is, and how it has
evolved to this point. Hopefully this issue will fall by the wayside and we can
all expend our energies jointly defending the Second Amendment and regaining
lost ground from the past.

Best regards,

Jim Nicholson, Dallas, TX
NRA Director

“NRA has not filed suit against Grassroots North Carolina, however, an NRA
employee, Jennifer Palmer, has filed suit against Paul Valone, President of
Grassroots North Carolina and Grassroots North Carolina as an organization for
defamation of character.

Mr. Valone sent an email to numerous people falsely claiming that Mrs. Palmer
was committing adultery. This false statement clearly defamed Mrs. Palmer’s
moral character and integrity. Despite several opportunities to do so, Mr.
Valone refused to apologize for making the false statement and refused to
retract the false statement. As a result, Mrs. Palmer filed suit against Mr.
Valone.

Mrs. Palmer’s lawsuit has nothing to do with legislative or political
activities. It is solely based on Mr. Valone’s defamation of Mrs. Palmer’s
moral character.

As the issue is currently in litigation, no further comment would be appropriate
at this time.”

Summary of SB 919 -- North Carolina

SB 919, introduced by Senator Tony Rand (D-19), sought to require anyone subject
to an ex parte or emergency order of protection in a case involving domestic
violence to surrender any firearms he possessed. As originally introduced, the
legislation sought to give the courts broad discretion when determining whether
firearms would need to be surrendered. NRA worked with the bill sponsor, Sen.
Tony Rand (D-19), to have the discretionary language removed—ensuring that only
specified courses of violent conduct by the defendant could result in the
seizing of his firearms—and to clean up other areas. These other areas included
ensuring specific instructions be given the defendant on how he could retrieve
seized firearms when he was no longer subject to the order, as well as included
provisions to ensure a third party could retrieve any seized firearms that
should not be subject to seizure. NRA took no official position on this
legislation, which was sent to Gov. Easley on 7/11/03. At this time, it is
unclear if the bill was signed into law.

As for the complaints by Grass Roots North Carolina regarding NRA’s efforts with
respect to SB 919, they are without merit. GRNC was given an opportunity to
testify about any problems it had with the legislation when the bill was heard
in House Judiciary Committee IV. After Ms. Henri McClees, speaking for NRA,
testified that the primary problem with the legislation was the discretion
language, GRNC representative Jeff Rau was told he could testify. Instead of
explaining the problems GRNC now claims it has with “registration” and storage
fees for seized firearms, he merely stated that he did not wish to take up the
committee’s time because Henri McClees had already explained the primary concern
GRNC had with the bill. After the committee hearing, several GRNC members
approached Henri to thank her for testifying so well, and they seemed
exceptionally happy to see NRA and GRNC shared the same concerns with SB 919.
At no point was there ever any mention of “registration” or storage fees.

Regarding the issue of “registration,” this is simply a red herring. It would
seem that anyone who has had his property seized would want that documented, so
as to facilitate its proper return in a timely and accurate way. There is
nothing that specifically mandates the recording of firearms that are not
subject to seizure.

Turning to the issue of storage fees, it is unlikely sheriffs will charge fees
for the temporary storage of a small number of firearms, even though the
legislation does allow for a “reasonable fee.” In cases where someone subject
to a protection order has a large collection that sheriffs may not have the
facilities to properly store, they will likely need to seek the services of
someone in the private sector, and in those circumstances, fees will likely be
charged."




It'll be interesting to see how this all turns out.

However I will point out that I am not satisfied with the NRA's explanation of the circumstances surrounding the North Carolina SB 919. It sounds quite typical of them to downplay any & all negative effects of a bill they did not actively oppose. But it is not just GRNC that is not happy about the bill. I offer this link to the Gun Owners of America alert on SB 919.

& if that doesn't convince you I invite you to read SB 919 for yourself via the magic of the internet.

I think a proper fisking of SB 919 requires a post of its own. So thanks again to Gunner who took the time to write the NRA & took further time to send me their response.

Stop whatever it is that you're doing & go over to The Smallest Minority. The permalink is down so look for a post entitled "Gun SAFETY" = "Gun ELIMINATION." Just Like "Gun CONTROL Used to.

It discusses a Washington Times Op/Ed piece on the newly introduced Corzine-Kennedy bill which would regulate firearms under the guise of consumer safety.

& in case you're wondering - even though the Senate is in the hands of Republicans this bill stands a good chance of passing. How is that you may ask? I discussed this in a previous post on the Mcarthy-Conyers Assault Weapons Ban & Law Enforcement Protection Act of 2003 but I'll reprint the relevant part here.

"...Yes, I know we have a Republican controlled Congress. Yes I know there are more anti-gun Democrats than there are anti-gun Republicans. But there are more anti-gun Republicans than there are pro-gun Democrats & Republicans combined. Look here for the House of Representatives. Look here for the Senate. Anything less than a "B" rating means they are not oppossed to voting for gun control if it suits them. According to my calculations there's 18 pro-gun Senators & 176 pro-gun Representatives. That's counting the B minus among the pro-gun. !8 out of 100 & 176 out of 434.
There are 64 anti-gun senators & 205 anti-gun Representatives. That's counting D, F & Not Rated. 64 out of 100 & 205 out of 434.
In the Senate it would merely take the F,D & Not Rated Senators to vote for the McCarthy-Conyers assault weapons bill for it to pass. In the House it would take 13 C rated Representatives in addition to the F, D & Not Rated Representatives for it to pass. The Senate would have enough votes to negate a presidential veto, but it'd take 261 or so from the Senate, which would mean 56 C rated voters in addition to the F,D & Not Rated."

I'm thinking the guise of consumer safety would swing a lot more votes for this bill. After all, I'm sure a lot of pro-gun people wouldn't see the harm in having guns regulated for safety. This is unfortunate because most pro-gun people would see the harm in the details of this bill should they ever come to light. But politicians count on the people who vote for them to not read in too much detail what laws they vote for or against. So I doubt that any Senator or Representative would think they were endangering the pro-gun vote by voting for a consumer safety bill. Hence this one may have a better chance of passing than the Mcarthy-Conyers bill that was the focus of the paragraph above.

Thanks to The Smallest Minority for being on top of this.

The Charelston Post & Courier has a follow up story on William Gates. For previous posts on Mr. Gates please look here & here.

On to the article...

"Is William Gates a man who did what he had to do to defend himself and his home, or did he take the law into his own hands by gunning down two men in front of his house?"

Let's see... a man who had been complaining to police about the crime in his neighborhood to little effect hears gunshots early in the morning. He believes his wife was hit but said gunshots. He grabs a shotgun to see what is causing the gunfire. He see three men shooting at each other in his front yard. He shoots 2 of them thus ending the gunfire (the third man had been shot by the other two).

Barring any new revelations I'd say that was self defense. Although brownie points should be awarded for the use of the phrase 'gunning down' when the simpler, less dramatic & more accurate phrase 'shooting' should have been used.

"That's up to Charleston County prosecutors to decide and Solicitor Ralph Hoisington hasn't announced his decision yet."

Unless there is some physical evidence that could disprove Mr. Gates claims of self defense then why the hell hasn't the Solicitor made a decision? I would venture to guess that the answer has more to do with politics than the law or the facts.

"Trey Walker, a spokesman for South Carolina Attorney General Henry McMaster, said the state attorney general's office had no comment on this case and that it would be solely up to Hoisington whether Gates faces charges.
'Ultimately, he is the legal authority in that case,' Walker said."

It is correct that in local matters a state attorney general would be right to refrain from interfering with the local prosecutor. However I believe any charges that could be filed against Mr. Gates would be based on state law with the exception of firing a gun inside the city limits. I am not familiar with how South Carolina's legal system is structured so this is just speculation, but since most if not all charges would be based on violations of state law, then I'd think the SC Attorney General could offer an opinion one way or the other, or even decide to take the case over himself. But if any readers could explain to me why this is an incorrect assumption, I'd appreciate it.

"Charlie Condon, the former state attorney general, said the 67-year-old Gates appeared to have been well within his legal rights when he shot at three men Gates said were drug dealers engaged in a shootout in his front yard.
'Generally speaking, you do have the right to defend yourself from danger,' Condon said. 'I think a self-defense case has been made'.

Condon, who as attorney general in 2001 instituted a home-invasion policy that protected citizens from prosecution for defending against intruders, said he hopes Gates won't face charges.
'My sympathies are with the gentleman,' he said. 'I really do admire him for sticking it out and not letting the criminals run him out of his home'. "

Too bad Mr. Condon is retired.

"Police confiscated Gates' shotgun and six other guns inside his home, but he was not arrested. Charleston Police Chief Reuben Greenberg, who caused controversy earlier this year when he encouraged merchants to arm themselves as protection against robberies, said Gates did not take the law into his own hands but was merely protecting himself and his home.
Greenberg declined further comment."

So if Chief Greenberg feels it was self defense then why the hell did he take away Mr. Gates' means of self defense?

"Vance Cowden, a law professor at the University of South Carolina, said state laws provide for self-defense and defense of property.
'Use of deadly force is usually only proper when protecting life and not merely when property rights are at stake,' he said. 'You have to believe you are in eminent danger of losing your life and it has to be a belief that an ordinary, prudent person would entertain.'
Cowden said whether Gates faces charges will likely come down to whether prosecutors believe Gates rightfully feared for his life, a decision that could be swayed by the fact that the neighborhood is known for drug activity and someone had previously shot into his house. Prosecutors could also decide that Gates escalated the situation by his actions.
Cowden said responses to physical threats have to be 'proportional.'
'If someone throws a snowball at you and you shoot them, that's not proportional,' he said."

This is partially incorrect. Fear of losing ones' life is not the only justification for using deadly force. Most state laws allow for the use of deadly force when you feel you are danger of serious bodily harm as well as lose of life. To limit that only to loss of life is a bit misleading.
For example if you were certain you were going to be raped but not killed then deadly force would be inexcusable according to Prof. Cowden's explanation. But most states recognize rape as a crime that does serious damage to the victim & as such the use of force, including deadly force to stop such an attack is justifiable.
& his example of 'proportion' is not entirely accurate. If someone attempts to stab you, you are not restrained to only stabbing them back. The proportion test is usually negated when there is a serious threat to life or limb. So a snowball wouldn't necessarily constitute a threat to life & limb & shooting would be a disproportionate response. However a person threatening you with a thick stick is a danger to life & limb & the use of a firearm in defense from a person weilding a stick or some other such weapon would be justifiable despite it being a disproportionate reaction.
Also most states allow for the use of deadly force to protect someone else's life, not just your own.
So perhaps Prof. Cowden's remarks were condensed by the reporter or perhaps he was in a rush & didn't see the necissity of explaing in more detail. But from my understanding of SC law his statements were a bit misleading.

& while legally a prosecutor could make the claim that Mr. Gates escalated the situation, practically speaking he de-escalated it. After he shot the two men left standing, there was no more violence was there?

"North Charleston defense attorney Michael O'Neal said Gates might have pushed the boundaries of self-defense laws, but did not go over them, by shooting at the men in his front yard. He said people, when confronted by physical threats, are required by law to retreat whenever possible -- everywhere except on their own property.
'A man's house is his castle, that's what it essentially boils down to,' O'Neal said. 'The men weren't exactly attacking him, but they were exhibiting violence on his property.'

For the record North Charleston is a seperate city located (obviously) just north of Charleston, S.C.

"Charleston defense attorney Mike Coleman agreed that the Gates case will come down to whether he was actually in imminent danger of being hurt.
'Each case depends on the actual facts and the individual variables that go along with that case," he said. 'If you have a drug dealer in your front yard and you've called the police and they haven't done anything, that still doesn't give you the right to use deadly force. If he's trying to hurt you, that's a different story'. "

This is not necessarily true. A very strong case could be made that the people shooting in Mr. Gates' front yard presented a clear & immediate danger to the community. A stray bullet could have injured or killed a person within several blocks if not miles. Usually when you take an action to stop someone that presents a danger to someone else that falls under the category of 'defense of self & community'.
For example if you see a truck driving very fast towards a building & you are somehow magically aware that the truck contains a bomb & the object of the driver is to blow up the building, then by taking action to stop the truck you would be justified even if the truck &/or bomb did not present an immediate danger to you personally.

Less common but worth mentioning are various 'citizen arrest' laws in some states. These sometimes provide for the use of deadly force to stop a person who you have witnessed commiting a serious crime & is attempting to flee. The idea is that even though the fleeing criminal does not present a danger to you personally at that moment, his escape will allow him to (based on his actions) be a danger to others. This of course would only apply to the more serious offense such as murder & rape. & this is only applicable in certain states which my memory does not serve me well enough to mention.

So there are other justifiable uses of deadly force that are not based solely on imminent personal danger.

"Regardless, Gates is a hero to many people. Dwight Arrington, a Columbia resident whose daughter is a student at Medical University of South Carolina, said he would help establish a legal-defense fund for Gates if he is charged in the shooting.
'I'm just glad the guy had the backbone to do what he did,' Arrington said. 'I was thinking to myself when I read about it, Good for him, I would have done the same thing'. "

If they do charge him I'll try to track down the contact info for the legal defense fund.



Another thing - the reporter mentions the fact that the police have totally disarmed Mr. Gates, but yet is very specific as to where Mr. Gates' lives. I wonder how the reporter in question would feel if the government took away all his arms after he had shot some alledged drug dealers & then found his location was printed in an article about him?

But aside from a few exceptions the reporter did a fairly unbiased article, if it was somewhat incomplete. I would have preferred a more in depth treatment of SC's self defense laws, perhaps printing the relevant sections of law rather than merely relying on the commentary of lawyers.
Also I would have liked to have seen some kind of explanation as to why Mr. Gates' was completely & totally disarmed by the Charleston P.D. , especially considering thier Chief was urging merchants to be armed some months ago & feels that Mr. Gates acted in self defense.
But I guess that's why there are blogs.


Steve Reeves can be contacted at sreeves@postandcourier.com or 843-745-5856.

I'd urge any & everyone to e-mail or call Mr. Reeves & inquire about the legal defense fund as well as asking him for any details on when Mr. Gates' arms will be returned.

Grass Roots North Carolina is not happy with the NRA. It seems that in addition to supporting a very questionable domestic violence law that would make it much easier to confiscate & register firearms the NRA has decided to file a 'defamation of character' lawsuit against GRNC.

GRNC has said some pretty unkind things about the NRA. Unfortunately those unkind things are factually correct. The NRA did do all the things GRNC has accussed it of. The only thing left to question is whether GRNC's conclusion of the facts is correct.

Personally I don't think there's anything to question at all. Ya see I too have written very very unkind things about the NRA. In fact I've written so many very very unkind things about the NRA that I've set them up in their own archive.

So what appears to be happening is that the NRA is trying to use the courts to stop a non-comprimising pro-gun group from informing people of the NRA's anti-gun activities.

So being a blogger who thinks actually doing something trumps just reading about it & getting pissed, I encourage you to use the following information (courtesy of GRNC) to contact the NRA & ask them - nay, demand that they stop wasting money try to shore up their tattered image through a civil lawsuit & instead shore up their image by actually fighting for the Rights they claim to champion.

"CONTACT THESE NRA REPRESENTATIVES
NRA Institute for Legislative Action at: ila-contact@nrahq.org
NRA Board of Directors Members using the addresses below or GRNC's automated e-mailer at http://www.grnc.org/nra_sellout/
For a complete list of NRA Board Members, many emails and phone numbers, go to http://www.grnc.org/media/files/2003_NRA_BOD.htm
Here is a convenience list you may copy and paste into your email. Names with email and phone numbers are below. You will also find a link to find your representative at the end. We suggest using the bcc: field, but the to: or cc: field will work as well.
NRA-ILA phone number: 1-800-NRA-3888 (prompt #1 to resign memberships; prompt #5 for input on state and local affairs).
Copyright © 2003 Grass Roots North Carolina P.O. 10684, Raleigh, NC 27605"

More on Mr. William Gates of Charleston, S.C.

I still have not received any replies from the Mayor, Chief of Police or the public relations officer. I know at least a few of you have written &/or called so please let me know if you get any kind of response.

But some interesting questions have been raised & interesting comments made. I'll attempt to wade through them.

From my comments David writes the following

"While I really don't like the logic, if any, behind the confiscation of the fellow's guns, I'm also not entirely at ease with his actions. It's one thing to shoot to defend oneself, or to assist in another's defense. But opening fire on a shootout such as this. . . there was so much room for error. What if one of the three had been an innocent neighbor, being attacked and defending himself? Or, for that matter, an undercover detective?"


Mr. Gates believed his wife had been hit by gunfire. People were on his property shooting. That presented an eminent threat to Mr. Gates as well as the neighborhood. It seems obvious that Mr. Gates did not recognize any of the people as his neighbors who may have been defending themselves. As for the possibility it could have been some other innocent civilian or police officer, yes it could have been.
However, there are times when one must take action based solely on the information one has available. This indeed leaves a lot of room for error but unfortunately that's part of life. Mr. Gates acted on the information he had - people were shooting in his yard & presenting a threat to himself & the community. It would have been unfortunate if one of the people he shot turned out to be an innocent party but I still wouldn't fault him for his actions. He did what he thought was necessary at the time based on what he knew at the time.

Jon writes

"...There's no reason for him not to cooperate with the police - he did nothing wrong. And you can bet after the publicity this is getting, he'll get his guns back."

There are many reasons not to cooperate with the police, the main one being self protection. Police can & will use anything you say against you even if you're just trying to be helpful. The 5th article of the Bill of Rights provides protection against the government compelling any testimony about yourself. It'd be foolish to let a perfectly good amendment go to waste.

& we all hope Mr. Gates will be getting his firearms back soon. Hope. There are many cases that have received far more publicity than this where firearms were not returned despite acquittals or even a lack of prosecution. The main culprits are usually the BATF when it comes to stealing large collections of arms, but local police aren't amateurs at it. But perhaps if we all do keep up the pressure Mr. Gates won't be robbed by his local police department.

Instapundit has this to say

"...The police chief here, Reuben Greenberg, is well-regarded, which makes it likely that either there's more to this story than has been reported, or that swift corrective action will be taken."

I have heard good things about Chief Greenberg as well. But I do not share the optimism expressed at Instapundit. There are many good people who honestly believe that this sort of action is justified & any means of getting 'guns off the street' are justified. I do not know if Chief Greenberg is one of them, but considering he is ultimately responsible for the actions of the department, & that confiscating all a persons' weapons is supposedly a departmental policy, things aren't looking good.

& yes, there may be more to the story than is being let on. But until they press charges against Mr. Gates or produce a search warrant then his property is off limits. I don't understand how it gets so confused, but due process is not the word or actions of a cop. Property should not be taken unless at the very least there is probable cause to believe a crime has been committed & the property to be taken bears some relevance to the crime. I see absolutely no connection to Mr. Gates entire firearms collection & his use of a shotgun in defense. Add to that the cops who were quoted as saying Mr. Gates' actions were justified & there goes the probable cause for taking even the firearm he admitted using. & barring probable cause I saw absolutely no mention of any court proceedings that granted the Charleston P.D. the authority to seize Mr. Gates' weapons.

Every wants to believe that cops are on our side & they never do anything they're not supposed to. & don't get me wrong - I think most cops aren't bad people. Most of the bad actions of cops can be traced directly to bad policies set by police departments & courts. But the bottom line is the Charleston P.D. stole Mr. Gates' firearms.

Laylines reports that this incident is even being mentioned by G. Gordon Liddy. Laylines goes on to say

"How does this make sense? It's disgraceful how Charleston Police Chief Reuben Greenberg is treating the citizens in his own city. It makes you think twice about visiting Charleston. If they treat citizens this way how would they treat someone from out of town much less from out of state?"

Ayup.

SayUncle feels if his name were Bill Gates things would have been different. He is also of the opinion that there'd have been two shootings reported if his local P.D. tried to seize his entire collection without a warrant or probable cause.

The Spoons Experience believes that Mr. Gates was smart enough to not mention all of his firearms when the police asked him what else he had besides his shotgun. I hope that's the case.

In the event Mr. Gates was a good citizen & let the police steal all his firearms the good news is they're not hard to find. Despite all the unconstitutional laws that burden citizens when it comes to acquiring guns, there still seems to be a thriving black market in arms as well as private sales that are not illegal (yet). If for some reason Mr. Gates could not buy one over the counter then he could always look for private sellers or in the worse case look for black market sellers.

WeckUptoThees has already thought of appropriate punishment for the officer who did the stealing of Mr. Gates' property

"Cut this the hell out. Give them back now, with an apology to him and termination for whoever made the decision to disarm him.
On second thought: whoever moved to disarm the homeowner, it's now your turn to sit on his porch with nothing but a cordless phone and a flashlight for the next 72 hours. No hardshirt either, asshole. If you live through that, then you're fired."

He also contemplates what he'd do in Mr. Gates' shoes

"I would hope to have the kind of balls this guy has. My first action would be, as G Gordon Liddy has advised, don't hand them over to the cops. If the cops insist that I must be separated from my weapons, I'm transferring them to my lawyer for safekeeping. Possible outcomes:
Worst: I am officially identified as a Bad Person and lose the right to own them. The lawyer sells them and I get the proceeds.
Bad: the lawyer returns them when the bullshit is over.
As if we have an RKBA: the lawyer pushes back hard enough that I don't give them up."

& finally Stop The Bleating says a few things I'd like to address:

"1) In many parts of this country, Mr. Gates would likely have been charged with attempted murder. If you live in a Blue State--or even some of the Red States--think very hard before emulating him, unless you're a risk-loving sort of fellow with lots of spare cash to spend on lawyers. The scenario as described isn't the strongest case of self-defense I've ever heard of. Not only is it arguable whether Mr. Gates reasonably believed that shooting the aforementioned scumbags was necessary to prevent death or serious bodily harm to himself or his wife (the scumbags were shooting at each other, not at him or into his home), but he charged into the fray with a shotgun intending--by his own words--to kill someone. In most states there's no absolute duty to retreat when unlawful violence is offered, but there is a duty not to act as the aggressor in the "affray." Interjecting onesself into the middle of a gunfight amongst strangers, with a Browning Auto-5 and homicidal intent, is the sort of thing that some folks might see as aggressive. (I'm speculating that it's an A-5. It's Browning's best-known auto shotgun, they probably produced more A-5s than any other model of semi-auto, and it's the right "fit" for Mr. Gates's generation.) There are plenty of prosecutors in this country who'd be willing to put Mr. Gates's defense to the test. I'm not saying that's as it should be; I'm simply saying that's how it is. If you want to stand on principle because you're sure you're right, good for you. Just know what the potential consequences are before you pull the trigger."

South Carolina is a very good state to be in if you're on your own property. It's been described as a 'shoot your neighbor' state, meaning that there is no duty to retreat when you're on your own property. I'm not sure what the exact threshold is but I believe that if you feel threatened on your own property by a trespasser then the use of force, including deadly force is justified.

Also what many people neglect is that defense is not limited to yourself. Defense encompasses your family, friends, neighbors, community, country & state. So should there be a threat to your community you should be justified in acting to stop that threat.

I feel Mr. Gates was thinking his life was in peril & that of his wife but even if that were not the case several men were still shooting in a residential neighborhood. Even if they had been on the street solely shooting at each other Mr. Gates should have stopped them if for no other reason than to prevent one of their shots from hitting an innocent bystander. Too many people feel that taking direct action to prevent crime & injury is vigilantism. I feel it is merely doing your civic & moral duty. Every one should do what they are able to stop & prevent crime even if that means getting directly involved. Most reasons against direct citizen action can be chalked up to job security efforts on behalf of the police. If citizens started acting upon this duty then perhaps crime would go down a bit & we wouldn't have the justification for so many cops, which may mean that we're safer not only from criminals but from government looking for something to keep its employees busy.

He continues

"2) It's probably not wise to proclaim to the media, "I shot to kill." It may sound good in movies and on TV, but it's not helpful when a prosecutor (or civil plaintiffs' attorney) gets it in front of a jury. It's probably best to keep one's mouth shut about such things, no matter how "righteous" the shooting(s) may have been. If you shoot someone get a lawyer for God's sake--no matter how sure you are that you were justified--and don't yammer about it to the police or media until you've done so."

I agree - keeping your mouth shut is the best policy. But I don't think the "I shot to kill" statement is as damming as Matt believes. The argument against it would be that he was looking to kill & his actions may not have been in self defense. The counter-argument to that is that he was in legitimate fear of his safety as he attempted to kill rather than wound or to scare off. Further cops are encouraged to shoot to kill simple because shooting to wound is risky at best & may not immobilize an attacker he poses an immediate threat.

He continues

"3) If you shoot someone, expect the gun you used--and perhaps all of them--to be seized as evidence. Publicola thinks this is senseless, because a shotgun can't be ballistically matched to its projectile(s). That's largely true, although the extractor and ejector markings on the shell casings that Mr. Gates presumably left all over his porch or front yard can be matched, with some degree of accuracy, Mr. Gates's A-5. At any rate, it may not really matter: although the motive for seizing the other guns isn't entirely clear, the A-5 is evidence. If nothing else, it's evidence that Mr. Gates owned a 12-gauge shotgun that had been recently fired. And quite coincidentally, two scumbags were found suffering from 12-gauge wounds in the owner's front yard. Is this necessary evidence, in light of the fact that Mr. Gates freely admits to shooting said scumbags? Perhaps not, but consider this. If Scumbag A admitted to dealing crack, and the police thereafter decided, "ah, what the hell--he confessed, so let's flush these rocks down the toilet," wouldn't we all be pretty pissed when Scumbag A's lawyer manged to get the confession suppressed and the cops had no physical evidence to put in front of a jury? Good police work means gathering evidence--all the evidence they can get their hands on. It's prosecutor's job to decide whether to use a particular item of evidence."

This is a good point. However it is not that persuasive to me.

Consider this - the shotgun shells found on the front porch are matched to the shotgun in question with a 90% probability of coming from said shotgun. It is evident that said shotgun was recently fired. Mr. Gates fingerprints are found on the shotgun. That's all they can tell from the shotgun & shells. & that is circumstantial evidence. Not very convincing in & of itself. In fact here's a scenario that would negate any findings obtained from the shotgun & shells:
Mrs.' Gates was suffering from some sort of delusion. She grabbed the shotgun & ran to the front door, firing 3 shots before Mr. Gates could get control of her. He then instructed her to go inside the house & lie down. When the police arrived he told them the story of hearing gunshots & firing in self defense. He lied in an effort to protect his mentally ill wife.

Not the greatest story but it would render any evidence obtained from the shotgun & shell casings mute, albeit opening up various fraud charges against Mr. Gates.

Ultimately though I still see no valid reason for confiscating any of Mr. Gates' weapons. When the officers on the scene attest to the righteous nature of a shooting then unless there is some very compelling evidence to the contrary there won't be a case. & the evidence obtainable from Mr. Gates' shotgun would not provide anything to help a prosecutor.

& it still goes back to probable cause. When the police on the scene state that a shooting was in self defense then any reason to confiscate the weapon used is rendered moot. The 4th & 5th amendments as well as provisions in state constitutions & laws are supposed to protect the citizen against 'fishing expeditions' by the government. You have to believe a specific crime has been committed before you can legally start gathering evidence. Since the cops said it was obviously self defense, & self defense is not a crime, then they had no legal basis for taking his weapons & in fact committed criminal actions by doing so.

He concludes thusly

"It's not uncommon for the authorities--particularly in fascist states like New Jersey, New York, Massachusetts, California and Illinois--to refuse to return firearms even after their owners have been cleared of any wrongdoing. Is this lawful? In most cases probably not, although in some instances property may be seized--and kept--by the government on the basis of mere probable cause. (If I'm not mistaken, there are or at least used to be laws that permitted property to be seized--permanently--on the basis of mere reasonable suspicion! What about the Fifth Amendment, you ask? A damned good question . . . Welcome to the wonderful world of the War on Drugs, where the Bill of Rights doesn't count.) But the problem is that the typical firearm is only worth a few hours of attorneys' fees. So the cost of getting the gun back almost always exceeds the value of the gun. It's damned infuriating, but that's the reality."

I wish he were wrong, but he's not.


If I hear anything more on Mr. Gates' plight I'll be sure to post it promptly. If any of y'all hear anything please feel free to contact me either in the comments box or by e-mail at publicola_rd@yahoo.com

The Smallest Minority has a nice essay up entitled History Calls - Will We Answer?

"We are living at one of those historical confluences of technology, thought, and opportunity. The possiblity exists that we, the denizens of the internet, the anti-idiotarians, could be the spark of a revival of the rights of individuals in opposition to the creeping statism that we see every day. "Eternal vigilance is the price of liberty," is the inscription on the National Archives building in Washington. We've fallen down on the job."

Go read the rest of it.

Over at End the War on Freedom I found this interesting link to a piece by Carl F. Worden on Police Contact.

Mr. Worden advises absolute silence in any & all encounters with the police & I generally agree. However the one time you should not be silent is when an officer attempts to violate your Rights. In that instance one should briefly but concisely remind the officer that his actions would be a violation of your Rights & inform him you will use every legal means at your disposal to protect your Rights &/or seek restitution if they are violated. But in no way should you say anything that could incriminate you. Leave out any personal details & stick to the general idea.

Read what Mr. Worden has to say about silence. It may come in handy.

Alphecca has his Weekly Check on the Bias at Yahoo with New & Improved Graphics (August 6th Edition) up.

Rachel Lucas relates the tale of a Charleston, S.C. man who was so fed up with criminal activity in his neighborhood that he took action. Rachel is happy over the initial outcome (3 criminals wounded - 2 by Mr. Gates) but isn't so thrilled with what the police did.

Now here's the gist of it: Mr. Gates had complained repeatedly about drug dealing & other criminal activity that made him feel uneasy about his safety. When 3 alledged drug dealers got into a shoot-out in Mr. Gates' front yard he grabbed his shotgun & wounded two of them. the police aren't pursuing charges - at least as of Friday.

Sounds good so far right? But now enters the hand of all-powerful government:

"While police did not publicly approve of what Gates did, they filed no charges against him Friday.
'We have no plans to arrest him,' Charleston Police Chief Reuben Greenberg said. 'We can't see from where we sit where a crime's been committed. People have the right to provide for their safety, and we believe that is what he was doing."

Official disapproval of a person taking actions that they acknowledge he was justified in taking. But it gets worse:

"Gates...had all seven of the guns he owns confiscated by the police until their investigation is complete."

They admit that Mr. Gates was justified in shooting. They mention that people have a right to provide for their own safety. Yet they confiscate not merely the shotgun Mr. Gates' used, but all of Mr. Gates weapons.

So while they grudgingly admit that Mr. Gates has the Right to Self-Defense, they remove his means of exercising that Right.

South Carolina is a peculiar state as far as self defense goes. In a nutshell the state constitution acknowledges they Right to Arms but it is read to apply only on your own property. Hence you may not legally carry a firearm openly if you are walking down the street. A firearm carried in a vehicle must be in a lockable container, such as a glove box, but it doesn't have to be locked. However they are very lenient in their definition of what constitutes a justifiable threat on your property. So in effect it is a good state to be in for firearms ownership as long as you never leave your house or business on foot.

But this surpises (albeit mildly) me. Confiscating a man's entire inventory of arms because one was used in a justifiable shooting. & even confiscating the shotgun makes no sense as there is absolutely no way to perform any sort of ballistic trace. Not that ballistic traces are effective in rifled arms but in a smoothbore it is worse than useless.

Mr. Gates plans on aquiring another firearm in the meantime & that shows yet more of a very logical mind at work. Mr. Gates realizes that depsite any promise of increased patrols the police cannot protect him & his family. The police took away his means of Self Defense so he simply will go out & purchase another.
Normally I'd be all in favor of any excuse to buy another gun, but not when it is made necessary by the heavy hand of a government, even a local government, who decides it can take away property that is constitutionally protected & practically necessary for an individuals' safety.

I would ask that you contact the Charleston Police Department & express your concern over this idiotic action taken by them.
You may reach the Chief Of Police at 843-720-2401.

You may contact Mayor Joseph P. Riley Jr. at rileyj@ci.charleston.sc.us .

Edit: You may contact Chief of Police Greenberg at greenbergr@ci.charleston.sc.us

I attempted to call the Chief of Police but was unable to get through (it was after 5 p.m. their time when I called). I did manage to get through to a desk seargant. I explained that I had read a story about Mr. gates' plight concerning the confiscation of all of his weapons despite one only being used in a justifiable shooting & asked whom I should speak with to find out the justification for this action by the Charleston Police Department. His intitial reaction was, "what do you have to with this?". I told him I was a blogger, then explained that meant I am an internet journalist of sorts & he immediatley became a little more friendly. So I would advise that if you can't justify your interest by claiming to be a blogger, you should merely explain that you & your extended family were thinking of vacationing in Charleston but that decision is on hold pending a very good explanation for the very bad treatment of one of Charlestons' own. After all, if a resident gets treated so shabbily what makes anyone believe a tourist would receive better treatment? & Charleston is a tourist town.
Of course you could always simply say that you don't have to justify your 'need to know' & they have to justify their 'need to with-hold information' but I think the internet journalist or tourist answer will produce results quicker.

Update: I just got off the phone with the public relations officer of the Charleston Police Department. A rather interesting chat ensued.
The gist of it is that it is a policy of the Charleston Police Department to confiscate any & all firearms whenever a firearm is discharged by someone within the city limits. I was told that Mr. Gates would have his firearms returned. I asked when & Officer Charles Francis (sp?) said he'd have to consult with the detective in the case & get back to me. He went on to assure me that "...it's not like we're gonna keep them forever or anything..." or something to that effect. I didn't bother to inform him of all the times when that's exactly what happens.

A click was heard on the line & he asked if someone was listening on the other end of the phone. He then said something to the effect of talking with him without either someone listening or recording it. I'm not quite sure what he was implying. I assured him it was merely noise in the line.

This is where it gets interesting. He said he'd call me back with the information. I gave him my phone number. he then asked for a name. I told him Publicola. he then asked for my real name. I told him I post under a psuedonym & won't give out my name. he then asked what name my parents gave me, etc...I told him he could call me Publicola. he then started down the "what are you afraid of?" road, quickly detouring onto the "it doesn't matter to me" road making a quick pitstop at the "I'm not gonna tell anyboy" Inn. I told him if he wasn't going to tell anybody & it didn't matter to him then he should just accept Publicola, especially since that was all he'd get. Finally he explained to me that a real American has nothing to hide; that he stands up & states his beliefs under his given name just like George Bush. I couldn't resist bringing up Bush's promise to renew the Assault Weapons Ban but he merely replied that Bush would sign it because he said he would because he does what he says. Our conversation ended with his asurance that he'd call me back & give me the details of exactly when Mr. Gates' property would be returned.

I have dealt with various South Carolina police departments before. In my experience any attempt to gather any information is less than a sure thing. I will say this for Officer Francis (sp?); his was the most interesting side step I've ever heard! (excuse the mixed metaphor). While lacking the finesse I've come to expect from people in any level of government who don't wish to answer your questions but yet want you to believe they've been answered, he gets an A+ for enthusiasm. Hell, I think he actually believes that what he was telling me was accurate, informative & beyond question! Which would mean that one of us on the line did.
He may even call back, though I would be at least mildly suprised if he does.


Update: Suprisingly I have yet to receive a phone call from the public relations officer.
I have added Chief Greenberg's e-mail address, which I should have done earlier. We'll see if he responds.

Broomfield, Colorado is busy guaranteeing that certain public places will be safehavens for criminals & murderers.

"Three little girls played at the puzzle table at the back of the children's section of the Mamie Doud Eisenhower Public Library Wednesday as city workers mounted a sign barring guns on a nearby door."

A nice visual image is being projected that this is "for the children". In reality though it is saying that if you want to shoot a bunch of people with virtually no chance of being shot yourself, than this library & any other place with a "no guns allowed" sign is the perfect place for your next homocidal spree.

The article makes much of the thoughts of a college student named Jon Howell who agrees with the gun ban:

"I think our city governments do have the right to say when and where we can carry firearms," Howell said. "Though your average citizen may not have a criminal arrest record, if they're allowed to bring a weapon into a public building — not knowing what their intentions are and what could spark them to go on a violent rampage — I wouldn't feel safe."

& he's a criminal justice major! He actually believes that a city government has the authority to tell its citizens that the federal &/or state constitutional provisions that specifically protect the owning & carrying of firearms is invalid if a city council decides that "guns are bad".
I wonder if he's ever explored the possibility of what would happen if someone decided that they wanted to kill as many people as he/she could in a certain place? Would he conclude that A; a sign barring weapons would stop them in their tracks & make them reconsider their evil ways or B; that if everyone had the means to defend themselves that the want-to-be murderer woud pick another place entirely or C; that if someone did start shooting people at random that armed citizens would be able to stop the murderer long before the police arrived? I'd go with B & C myself.

"Resident Robert Rhatigan, who said he visits the library nearly every day, agreed. He said he recognizes Americans' constitutional right to own firearms, but he doesn't want to see them out in public places."

By that logic Mr. Rhatigan should have his right to speech recognized, but not in public.

"I think it's basically a concern that anybody having an open firearm in a municipal building, like city hall, would be of grave concern to me," City and County Attorney Roy Howard said. "Under no circumstances do we want open carry of firearms in city buildings, particularly council chambers."

Of course he doesn't want reminders of the citizens ability to defend themselves present when they vote on things like taxation. The second amendment wasn't written to keep ducks in line, but rather politicians. No politician, even on a city council, likes a reminder that they are being watched, especially by people capable of resisting their edicts.

"He said a story in a local daily newspaper about a man attending a Colorado Springs council meeting with a rifle in plain view spurred the city to expedite posting its notices."


You may find more about the incident of a Colorado man exercising his Rights here. & it was reported that he carried a shotgun, not a rifle. Again, politicians hate to see people with arms for the same reason the Klu Klux Klan hated to see black people with arms.

"The open carry ban does not apply to law enforcement officers, who may also carry concealed weapons, if they have a permit, Howard said."

Of course not. The police are a special class of citizen because they are sworn to do the bidding of the politicians, therefore said politicians have nothing to fear from the police since they'd most likely be enforcing rather than resisting the politicians will.
It's not that I think cops should be universally disarmed, but I see no reason for a cop to carry a weapon where a citizen could not.


But once again we have a piece in a newspaper that with only a few subtle changes could be a press release for an anti-gun organization. Note the complete lack of any pro-gun opinions. & saying that the Right to Arms doesn't apply outside the home is not pro-gun.

I sincerely hope there aren't any mass shootings at any of these places the city of Broomfield is designating victim disarmament zones, but if there is I hope any & all survivors & relatives of the vicitms own the city of Broomfield after their lawsuit. As with the idea about suing attorneys for attorneys' fees is failed litigiation, it's probably just wishful thinking (most governments are protected from lawsuits filed by crime victims that alledge a lack of protection) but it's a nice thought at least.

The Valor Corp. is suing the widow who unsuccesfully attempted to sue them.

Unlike said widow however, Valor Corp. is only seeking attorneys' fees caused by the initial lawsuit, & not trying to sue the widow out of existance.

"Pam Grunow's attorney, Rebecca Larson, said the widow was worried about losing her house if she was forced by the court to reimburse the gun company. The estate has no assets, Larson said."

hmmm. Now I do feel sorry for the woman as her husband was murdered. But seeing as how she successfully sued the pawnshop that sold the gun the criminal used & the legal owner from which it was stolen (both for around $300,000 if I recall) & then tried to milk the Valor Corp. for tens of millions I don't feel much pity for her current plight. Especially since the murderer was a 13 year old boy who had stolen the gun in question from its legal owner.

I could be wrong, but I do believe that it wasn't the deceased's estate that filed the lawsuit against the Valor Corp. but the widow herself. So while it may be true that her late husbands' estate had no assets it may not be true of the widow, unless she's spent the money she recieved from previous lawsuits.

& this is also just speculation, but exactly how much is the widows' house worth? I would imagine there would be a lot of public sympathy for the widow if she was facing the possibility of selling her $65,000 house to pay a gun distibutors' attorney fees for a lawsuit that only failed on a mere technicality (i.e. the gun company did nothing wrong). But if she's living in a $2,300,000 house then I don't think her attemots at garnering sympathy would be as succesful. Alas, the reporter in question fails to provide anythin other than the attorney of the widows statement & a short, yet subtly biased account of the situation.

"A jury found Valor partially responsible for the teacher's death and awarded Pam Grunow and her two children $1.2 million, but Circuit Judge Jorge Labarga threw out the verdict. The lawsuit claimed the Saturday night special handgun sold by Valor was inherently defective and should be sold only with safety locks."

It failed to mention that the verdict was thrown out because the judge considered the jury's assessment flawed in that Valor could only be found at fault if they were 100% responsible for the widows late husbands' demise.

They mentioned the widows claim in the lawsuit, that the pistol in question was inherently defective & should only be sold with a safety lock, but fail to mention the Valor Corp.'s defense: the pistol functioned exactly as it was designed to function. It just happened to be used by person with evil intent after it had been stolen from its rightful owner.

Nor do they mention that safety locks render a pistol useless for self defense, or that when stolen a safety lock can be defeated if you have about 20 minutes & a hacksaw.

They fail to mention that storing a loaded gun with a safety lock creates an elevated danger of accidental discharge, or that unloading the gun before applying a lock negates any reason to lock the gun in the first place.

& they do not mention exactly what the alledged inherent flaw in the pistol is. Given the mindest they have I assume this simply means it worked as it was designed - a pull of the trigger will discharge the gun when loaded. More or less I believe they sued because the pistol could not decide on its own who did & did not deserve to be shot.

What would be ideal though is to also sue the widows' attorney(s). I'm not sure of the details but if they worked on the condition that they'd recieve 1/3 of any awards resulting from the trial, then they should pay 1/3 of the judgement against her in this case. Although I doubt Florida law allows for that. & possibly there's a good reason for it. (if ya'll think of one feel free to point it out.)

Thanks to Alphecca as I found the story over there.

I've added some contact info for people who are willing to provide firearms instruction for beginners in their respective areas. So I thought it wouldn't hurt to go over some basic rules.

1. Always point the firearm in a safe direction.

This should be the most religiously followed rule there is. If you are constantly aware of where the muzzle is & make certain it is pointed in a direction where it'd do little or no harm if it were to discharge, then you dramatically decrease any chances of serious injury because of an accidental or negligent discharge. The other rules are important, but this is the one you should never neglect to follow.

2. Never point the firearm at anything you're not willing to destroy.

Not quite the same as No. 1. If you follow No. 1 religiously then following No. 2 might not be a problem. However some people get in the bad habit of aiming at things they do not intend to shoot, even though it is in no danger of injuring anyone. A good example of this is using a scope as if they were binoculars (i.e. seeing what's across the field by using the scope to look & subsequently pointing the rifle at the object). So unless you're absolutely certain that you want to put a hole in an object with a great amount of force, then do not point at it with a firearm.

3. Keep your finger off the trigger until you are ready to shoot.

Despite what you see in movies, keep your finger off the trigger. In stress filled situations this is probably the number one cause of accidental discharges. It's really more of a negligent discharge than accidental, because there is very little reason to place your finger inside the trigger guard until you are ready to shoot. Placing your finger on the trigger & pulling it takes a very small amount of time. Keeping your finger on the trigger is dangerous because you may slowly tense up, applying more & more pressure untill the gun seems to 'go off' when in fact it just operated as it should by firing when enough pressure was applied to the trigger. Conversely keeping you finger on the trigger can lead to discharge by a sudden tensing. Ever get startled so bad you jumped? Now imagine if you had your finger on the trigger when you jumped. The gun would probably fire. Also if you trip or bump into something it can cause an involuntary tensing which would fire the gun.
It's best to keep your finger along the outside of the trigger guard - even when you feel there is danger - until you are ready to shoot.

4. Assume that every firearm is loaded.

If you treat every firearm as if it were loaded then the chance of accidental (negligent) shootings goes down drastically. In fact treat a firearm that you know is unloaded as if it were loaded. No reason not to.
There are some situations which you would treat an unload firearm as if it were unloaded, such as crossing a fence with one or performing routine maintenance such as cleaning. But it is imperative that you check & double check to make sure the firearm actually is unloaded. & just because a firearm is unloaded is no reason to ignore any of the other rules.

5. Before firing make certain you have a safe backstop behind the target

Bullets can travel a very long distance. They can travel a very long distance after reaching their intended target. When you're out shooting always make sure that nothing lies behind your target that you wouldn't want a bullet to slam into. Never shoot on a relatively flat area unless you know for certain that nothing that could be damaged is within several miles of you. If you find an area with a hill or cliff stay far enough back so that you lesson the chances of a bullet hitting a rock & coming back at you. & never shoot over water, as the bullet can skip on the surface for quite a ways farther than you'd think.

6. Always use eye & ear protection.

Most firearms are safe to operate. Only a very small minority will ever cause any sort of injury to its user. But the chance does remain that something could go wrong. In that event wearing eye & ear protection won't seem like such a hassle - if you are wearing them.
Ear protection is essential. A firearm reaches a decibal level that will cause damage to your hearing. You won't notice it at first. maybe not that day. But soon. & for the rest of your life. Even .22 rimfire cartridges produce enough sound to damage your hearing. So always wear ear protection.
Eye protection will keep hot gasses & brass particles out of your eyes should a case head rupture, & they may keep larger chinks of unfriendly material out of your eyes should anything worse happen. If you value your eyesight, wear eye protection while shooting.

7. Make sure anyone around you is at least a few feet away from you & behind the muzzle of the firearm before you shoot.

This is to make sure that A: they don't wander in front of your muzzle just as you pull the trigger & B: they aren't hurt by empty cartridges flying from your firearm as you go for a new 3 shot record. Plus if anything does go wrong & your firearm decides to deconstruct itself, the person right beside you will probably be hurt worse than you are. Most firearms are designed to come apart a certain way with the protection of the shooter in mind. Someone standing forward or directly beside the shooter would not benefit from the designed protection. & there is that noise thing: someone standing beside you without the proper hearing protection will have their hearing damaged as you shoot. Best to keep spectators back.

8. Never carry a loaded gun across an obstacle, such as a fence.

This is because there is always the chance of you losing your balance. Not a good thing with a loaded gun. Also the trigger could get snagged on part of the obstacle as you cross which is also not good.
The only two exceptions are if you have a handgun properly & securely holstered & if whatever is motivating you to cross said obstacle will do more harm to you than your firearm would if it discharged while crossing (i.e. running from someone who's shooting at you.)
It seems a hassle but it only takes a minute & is much safer.

9. Read the owners manual (or similar instructions) for any firearm you have before you shoot it.

It is a good idea to understand how your firearm works & what the recommended instructions for operation & maintenance are for that particular firearm. Even if it is a copy of a firearm you are familiar with there may be something different that you should know about.
If you purchase your firearm used & no instruction manual is provided, you can write the company that made the firearm & they'll send you a copy of the owners manual usually (but not always) for free.
If the company is out of business then try looking for info on the web, or seek a brief tutorial from a qualified gunsmith. After all, if they can fix them they can probably exlain to you how it should be cleaned & what ammo to use.
If none of those methods work for you write to me & I'll try to help.

10. Only use the specific kind of ammo that is marked on the firearm you intend to shoot.

Some ammo can be used in firearms that are not marked for it. A .38 Special cartridge will work in a .357 Magnum revolver for example. Some will not work safely, such as a .308 Winchester in a .30-06 Springfield. Others will work safely a majority of the time but risk a catastrophic failure should the fates not smile upon you, such as using 7.62x51mm NATO ammo in a .308 Winchester.
(The gun nuts hate me for bringing that up as they tend to disagree, but the cartridges have a different headspace as do the respective chambers. I'll try to get to a more detailed post on that subject in the future.)
To be safe, it's best to use only the ammo that your gun says it will handle. Which can be confusing as some cartridges have different names.(for example .380 ACP, 9mm Kurtz, 9x17mm are all the same cartridge & are safe in any guns so marked). There will be a cartridge name stamped into the firearm someplace, usally on the barrel, but possibly on the receiver or the slide. Unless you know for certain that a different cartridge is the same as the one marked on your firearm, then only use cartridges named identically to whatever is marked upon your firearm.

11. Always make sure the bore is free of obstruction.

Water & most liquids are not compressible. A drop or two of oil or rainwater in your barrel can create a serious & dangerous situation should you decide to send a bullet through it. It's best to always use a cleaning rod & a dry patch to make sure the barrel is dry & free of any other obstructions. Snow, mud, dirt, etc.. can cause the barrel to blow up if it's lodged in there when you fire. Again, it may seem like a hassle at the time, but it only takes a second & is not as time consuming as replacing a barrel &/or your limbs.

12. If you experience anything abnormal with your firearm, stop shooting until the problem is identified & solved.

If the firearm fires before you pull the trigger, or if it fires more than one time when you pull the trigger, stop shooting, unload it & take it to a qualified gunsmith. It very likely indicates that something is not functioning as it should in your firearm & could become dangerous.
If you experience abnormal recoil, stop shooting untill you can diagnose the problem. If there's more recoil than normal, double check your ammo, then make sure the chamber & bore are clear of obstructions. Better yet, clean the chamber & bore as sometimes powder residue will cause internal dimensions to be tighter than they should.
Lighter than normal recoil could mean that you had a round with insufficient force to expel the bullet. Firing a gun with a bullet still in the bore is not a good thing. So check to make sure that the bore is clear of obstructions.
Never force anything. If firm gentle pressure won't operate the firearm then something is wrong & needs professional attention.



This is an incomplete list, as there is much to learn about firearms. But follow the rules listed above as they are the basics that all who own & use arms should follow.

Next time I'll try to go over the fundamentals of marksmanship.

I happened upon a rather extensive treatment of the Firearm Owners Protection Act authored by David T. Hardy & published by the Cumberland Law Review. I found it on Guncite.com.

It not only deals with the FOPA, but all of the preceeding federal firearms laws. It is annotated heavily & will not be a 2 minute read. It is complex in scope & in subject matter. But it will be enlightening.

Go read.