Recently in Firearms Category

Where Criminals Get Their Guns

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Here is a statistics note from the BJS monthly recap. Where do criminals get the guns they possess during their crimes or actually use in their crimes? Last January, BJS issued a report of its survey of prison inmates in 2016. From Table 5 of the report:

43% Off the street/underground market
25% Obtained from individual
10% Purchased at retail
 6%  Theft
17% Other

Politicizing a Vigil

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Deanna Paul reports for the WaPo:

A vigil commemorating the victims of the STEM School shooting in Colorado ended in protest Wednesday evening after students said they refused to be used as pawns to promote gun control.

Hundreds attended the vigil -- students, teachers, activists and elected officials -- to honor Kendrick Castillo, the 18-year-old who was fatally shot on Tuesday at the STEM School Highlands Ranch in suburban Denver. But Castillo's classmates were moved to protest after invitees Sen. Michael F. Bennet (D-Colo.) and Rep. Jason Crow (D-Colo.) spoke. Many of the teenagers perceived the speeches as politicians politicizing their trauma when they wanted their own voices heard.
The U.S. Supreme Court today finished its oral arguments for the current term, which began on the first Monday of last October. The court heard Quarles v. United States, No. 17-778, yet another case on how to handle the varying definitions of crimes in our 50 states for the purpose of the federal Armed Career Criminal Act. The transcript is here.

Does a person have a prior conviction of "burglary" for the ACCA when he was convicted under a law that defines mental element of burglary as either intending to commit a crime at the time of entry (the common law definition) or alternatively forming that intent after entry (as many states allow)? Note that a person who actually committed the common law crime would still get off if the court requires the narrower definition, because under the "categorical approach" it is only how the crime is defined, not what the perpetrator actually did, that counts.
The U.S. Supreme Court has denied a stay in the challenge to a regulation that expands the definition of "machine guns" (which are illegal) to include "bump-stock-type devices" which make semi-automatic guns function like full automatics, i.e., machine guns. The petition, with the D.C. Circuit opinion attached, is here.

The order notes that Justices Thomas and Gorsuch would grant the stay. I suspect that their position may have more to do with antipathy to "Chevron deference" than sympathy with owners of bump stocks.

CJLF generally does not get involved in the gun-control fight. I really cannot fathom any legitimate reason for owning a bump stock, though.

Pistol Packin' Mama

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AP reports from Barboursville, West Virginia:

News outlets report 54-year-old Mohamed Fathy Hussein Zayan of Alexandria, Egypt, was arraigned Monday night in Cabell County Magistrate Court on a felony charge of attempted abduction.

According to a criminal complaint, a woman was shopping with her 5-year-old daughter at the Huntington Mall in Barboursville when a man grabbed the girl by the hair and tried to pull her away. Police say the mother pulled out a gun and told the suspect to let go of the child. The man released the child and was later detained by mall security and Barboursville police near a food court.
The Ninth Circuit Court of Appeals today decided United States v. Torres, No. 15-10492, involving these two provisions:

"[T]he right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II
and

"It shall be unlawful for any person --
*    *    *
(5) who, being an alien--
(A) is illegally or unlawfully in the United States
*    *    *
to ... possess in or affecting commerce, any firearm or ammunition ...." 18 U.S.C. §922(g).
Does 18 U.S.C. §922(g)(5)(A) violate the Second Amendment, at least as applied to an illegal alien who has lived in the United States for a substantial time? Torres grappled with that question and discussed the variety of approaches taken in the other circuits.

Violence, Vagueness, and Avoidance

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On Friday, the U.S. Supreme Court waded once again into the murky waters of a vague definition of "crime of violence." The high court decided to review the case of United States v. Davis, No. 18-431.  The case involves 18 U.S.C. § 924(c), which imposes mandatory minimum sentences on persons who commit a "crime of violence or a drug trafficking crime" while using or carrying a firearm.  Paragraph (3) of that subdivision provides:

(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony and--

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Supreme Court has long held that similar language in statutes relating to prior offenses refer to categories of offenses and not the defendant's actual conduct in committing the crime. This is called the "categorical approach." The Court was motivated in part by the practical difficulties of determining the particular facts of long-ago crimes. More recently, the Court has declared language such as subparagraph (B) "void for vagueness" in two prior offense statutes. See Johnson v. United States, 135 S. Ct. 2551 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

As the Eleventh Circuit noted October 4 in Ovalles v. United States, No. 17-10172, if the categorical approach applies, then under Johnson and Dimaya "the clause is doomed."

But should the "categorical" interpretation of the statute be reconsidered in light of the principle that if two interpretations are plausible but only one is constitutional, courts should adopt the constitutional one? If so, is a "case-specific" interpretation of this statute plausible?

Open Carry on the Big Island

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The Ninth Circuit today decided Young v. Hawaii, No. 12-17808:

We must decide whether the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home.
*      *      *
As was the case in Peruta II, we find ourselves navigating waters uncharted by Heller and McDonald: the degree to which the Second Amendment protects, or does not protect, the carrying of firearms outside of the home.
*      *      *
We do not take lightly the problem of gun violence, which the State of Hawaii "has understandably sought to fight . . . with every legal tool at its disposal." Wrenn, 864 F.3d at 667. We see nothing in our opinion that would prevent the State from regulating the right to bear arms, for the Second Amendment leaves the State "a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns." Heller, 554 U.S. at 636.

But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, "in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion." Reid, 1 Ala. at 616. While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, "the enshrinement of constitutional rights necessarily takes certain policy choices off the table." Heller, 554 U.S. at 636.

The ACLU Effect

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Paul Cassell and Richard Fowles have this paper on SSRN with the provocative title What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the "ACLU Effect" and The Role of Stop and Frisks in Preventing Gun Violence.  Paul has this post at the Volokh Conspiracy discussing the paper.  Here is the abstract:

Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed-274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened.

This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly coincides with the spike. Regression analysis of the homicide spike and related shooting crimes identifies the stop and frisk variable as the likely cause. The results are highly statistically significant and robust over a large number of alternative specifications. And a qualitative review for possible "omitted variables" in the regression equations fails to identify any other plausible candidates that fits the data as well as the decline in stop and frisks.

Each time we have one of these horrific mass shootings, many people shake their heads and ask, "What on earth could make somebody want to do something like this?"  In most cases, the perpetrator is dead and did not plan to survive the attack.  This time we have a living perpetrator, so perhaps we will learn more.

I suspect that a strong desire to be in the headlines is part of the motivation.  Too many young people place too much emphasis on being "famous" and have lost the distinction between being famous and being infamous.  There is even a television series titled, "Murder Made Me Famous."

In December 1941, President Roosevelt famously declared that the 7th was "a day that will live in infamy."  He didn't say "fame," and everyone knew the difference.  The perpetrators would go down in history, but as villains, and that was universally regarded as a bad outcome for them.

Gallup Poll on Gun Laws

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Megan Brenan reports for Gallup that a poll shows that 46% of Americans are dissatisfied with our gun laws and want them more strict, 39% are satisfied with the laws as they are, and 8% are dissatisfied and want them less strict.

So a proposed law for greater restriction would have 46% in favor and 47% (39+8) opposed.  That's about as tight as it gets.  A proposal for less restriction would have 8% in favor and 85% (46+39) opposed.

A footnote on the graph notes but does not give a figure for "those who are dissatisfied but want laws to remain the same."  Huh?  Apparently the number of such confused people is small.

Yes, Carjacking Is a Crime of Violence

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Today, the Ninth Circuit decided United States v. Gutierrez, No. 16-35582:

The sole question presented by this appeal is whether the federal offense of carjacking is a "crime of violence" under 18 U.S.C. § 924(c). We hold that it is.
Odd that the question can be asked seriously.  All the circuits to consider the question have decided it the same way.  See pages 5-6 for citations.

The same panel decided in United States v. Werle, No. 16-30181 that "a Washington state conviction for felony harassment constitutes a crime of violence under the Federal Sentencing Guidelines."

Cal. Cops Speak Out on Gun Legislation

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The Police Officers Research Association of California has this press release on Gov. Brown's signing of SB 620, noted in yesterday's News Scan:

PORAC has opposed the bill from the beginning, and for two serious reasons:

• The current statutes relating to firearm enhancements already allow a judge to use discretion in sentencing. Each enhancement section has various levels of sentencing durations to be used by the judge on a case-by-case basis.
• PORAC continues to have concerns over the passage of Proposition 57 and the early release of prisoners who have not only committed serious crimes against the public, but have usually left a trail of victims behind. The firearm enhancement sections of the Penal Code oftentimes may be the only penalty keeping a convicted criminal from being eligible for early parole under Proposition 57. By allowing a judge to eliminate, or not impose, the firearm enhancement, the likelihood of dangerous criminals on the street increases.
This measure is unfair to victims and dangerous for our communities.
On many contentious social issues, including crime, there is often reason to suspect that researchers are partisans who decide what position they want first and then design a study to provide support for that result.  In the history of the "harder" sciences, there are many examples of researchers being dragged by their data to results they found distasteful, but that is not seen as often in the "softer" ones.

It is refreshing then, to see this article in the WaPo by Leah Libresco.  She studied gun control at FiveThirtyEight, and her research changed her mind.

Felons, Weapons, and Knowledge

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When a convicted felon is not allowed to possess a firearm, what knowledge must be established to prove a violation?  The California Supreme Court addressed that issue today in the context of probation violations in People v. Hall, S227193.  U.S. Supreme Court nominee Neil Gorsuch has dissented in favor of the defendant on a related issue.

In the California case, drug dealer LaQuincy Hall was given probation upon the condition, among others, that he "may not own, possess or have in [his] custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on [his] person."

Although he made no objection in the trial court, Hall claimed on appeal that the condition needed to be modified to prohibit only "knowing" possession.

Given the relevant case law, the firearms condition is properly construed as prohibiting defendant from knowingly owning, possessing, or having in his custody or control any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his person....  Because no change to the substance of either condition would be wrought by adding the word "knowingly," we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit.  A trial court, however, remains free to specify the requisite mens rea explicitly when imposing a condition of probation.

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