Archive for February, 2014

U.S. Supreme Court Refuses to Hear Second Amendment Cases

February 24, 2014

Cases concern the right to carry concealed handguns outside the home

Kurt Nimmo,, February 24, 2014

Three cases involving Second Amendment issues were turned away from the Supreme Court on Monday. The cases concerned the right of Americans to carry firearms outside their homes for self-defense.

The Court did not comment on petitions for certiorari for NRA v. Bureau of Alcohol, Tobacco and Firearms, NRA v. McCraw and Lane v. Holder.

Constitution Daily reports the cases were considered on Friday in private conference.

A fourth case, however, may ultimately be considered by the Court and settle the matter. Drake v. Jerejian addresses gun control in New Jersey. The case argues that the Second Amendment permits a resident of the state to carry a firearm outside the home without providing justification to the state. A number of amici curiae briefs were filed with the Court on February 12.

The Court is set to respond by March 14, according to the SCOTUSBlog.

The Court has not ruled on the Second Amendment since 2010 when it issued a decision on McDonald v. City of Chicago. The case added to the 2008 Heller decision. Heller held in a 5-4 decision the Second Amendment applies to the District of Columbia and protects an individual’s right to possess a firearm for self-defense. It struck down a DC law outlawing the possession of handguns in the home.

The decision follows a ruling issued last week by the U.S. 9th Circuit Court of Appeals that overturned a prohibition on carrying concealed handguns. The Court ruled that carrying a handgun “outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.”

Rulings on carrying firearms outside of the home have been mixed. The 7th Circuit concurred with the 9th Circuit that carrying a gun in public is covered under the Second Amendment. Other courts, however, including the 2nd, 3rd and 4th Circuits, have issued less definitive opinions.

Earlier this month, the 9th Circuit struck down a California law restricting the carrying of a concealed weapon in the state. A majority ruled that restriction on carrying firearms in Los Angeles, Orange County, San Diego and San Francisco violate the Second Amendment.

Off-Duty Officer Road Rage Murder Trial – Next Big Self-Defense Case

February 24, 2014

From by Andrew Branca, February 23, 2014

Race has been a major element in many of the more prominent self-defense cases we’ve covered in recent months.

Both the George Zimmerman and Michael Dunn cases involved a white man shooting and killing a black teen, with both arguing the shootings were justified self-defense (Zimmerman successfully, Dunn temporarily so).

The Marissa Alexander case involved a black woman shooting at a black man and his two black children, but the severity of her 20-year prison sentence was attributed by many to her minority race (especially in the aftermath of the Zimmerman acquittal).

Within weeks, however, we’ll be live-covering a self-defense trial in which the racial paradigm has been flipped:  the trial of Joseph Walker, a black New Jersey police officer charged with first degree murder for the road-rage fueled shooting death of the white (and apparently unarmed) victim Joseph Dale Harvey Jr.

Joseph Walker Road Rage Murder Suspect

We first covered this case back in August, in the immediate aftermath of the Zimmerman trial and not long after the June 8 shooting had taken place:  “NJ Cop Faces 1st Degree Murder — should have followed Law of Self Defense.”

The facts at that time were in some important respects vague, and of course they were sourced from media reports, which alone makes them of questionable reliability.  Since then some additional details have emerged from the Walker camp which presents his actions in a more favorable light.  Given the source, of course, these can hardly be deemed unbiased.

The “Facts” of the Case As Currently Understood

Both sides agree that the June 8 shooting flowed from a perceived traffic offense that grew into road rage and from there to a death.

Both men were waiting to turn at the same intersection, essentially beside each other, Harvey in a green Honda Accord with a single passenger (Adam Pidel), and Walker in a Kia minivan with his wife and three small children.  It appears that Harvey was in the left lane, and Walker in the right.  When the light changed to green, Walker made a left turn across the front of Harvey’s vehicle.  Harvey was forced to turn his Honda onto the shoulder of the road to avoid a collision.  This, apparently, enraged him, and induced him to pursue Walker’s minivan.

The next set of details get less clear.  Now driving side-by-side, the two vehicles took turns swerving at each other, almost colliding several times.  (Or perhaps Harvey was aggressively swerving at Walker, Walker was swerving away and then necessarily turning back onto the roadway — an act that would look much as if he were swerving back at Harvey?)

At some time during this altercation, Walker purportedly showed Harvey his police officer’s badge, and perhaps even his pistol, a Glock in .45ACP.

In one report, Harvey threw an object, purportedly a bottle, that struck Walker’s minivan, after which Walker pulled over and exited the vehicle to check for damage.  Whatever Walker’s reason for pulling over, Harvey chose do so so as well, a hundred or so feet further up the roadway.

When he stopped, Harvey exited his vehicle and began walking towards Walker.  According to Walker’s narrative of events, Harvey’s demeanor was clearly combative  He was swearing at Walker, calling both he and his wife the “n-word.”  Seeing Walker’s upheld badge, Harvey is claimed by Walker’s lawyers to have said, “(Expletive) you. I don’t care if you’re a police officer, you’re gonna die tonight.”

Unarmed Disparity of Force? Demonstrable Racial Animus?

It should be noted that Harvey, at almost 300 pounds, was considerably larger than Walker.

Also, publicly released photos of Harvey have shown him wearing clothing with the label “SKINS” prominently displayed. It’s unclear what that refers to, but it might be an Ultimate Fighting Championship related shirt.

If there is any evidence of Harvey’s involvement in UFC, a key issue to keep an eye on will be whether and to what extent Harvey’s reputation in the community and specific past acts may be admissible to show either that he was more likely to have been the aggressor or to justify Walker’s reasonable fear of deadly harm, both to himself and his family.

(Joseph Harvey, Jr.)

Importantly, there’s also some dispute as to the distance at which Walker shot Harvey, with some accounts claiming Harvey was still tens of feet away when shot and others claiming that Walker did not shoot until Harvey was almost within contact distance (and well within the 21-foot “danger zone” of the Tueller drill).  It appears that Harvey was unarmed as he approached Walker, and if so, would have been unable to present an imminent threat until he had come within closing distance.

Maryland:  Very Much a Duty-to-Retreat State

A key question will center on the fact that Maryland is very much a duty-to-retreat state.  Under these facts it seems odd that as the unarmed Harvey approached, Walker did not simply step back into his minivan, place it in reverse, and back out of the situation.

It is true, of course, that Harvey might have responded by regaining his own vehicle and again pursuing Walker — but in the absence of retreat being demonstrably ineffective, Walker would be obliged to take advantage of an apparently safe avenue of retreat before resorting to the use of deadly force.

Harvey was reportedly struck by three bullets, one of which hit him high in the leg, likely severing the femoral artery.  He was pronounced dead upon arrival at the local hospital.

Walker Charged with First Degree Murder, Weapons Offenses, out on $1 Million Bail

Walker was initially charged with second degree murder, but this charge was bumped to first degree murder, for which the greater charge was approved by the grand jury. If found guilty of first degree murder under Maryland’s  § 2-201. Murder in the first degree he faces a sentence of 35 years to life.

Walker was also charged with two counts of using a handgun while committing a felony under Maryland’s § 4-204. Use of handgun or antique firearm in commission of crime, which carries a mandatory minimum sentence of 5 years.  Walker is currently awaiting trial on $1 million bail, and has been suspended from his job without pay for the duration.

The trial is scheduled to begin May 21, and between now and then we here at Legal Insurrection will post up occasional pieces setting out the current state of Maryland self-defense law and how it is likely to apply to this case.

Maryland Self-Defense Law Almost Entirely Based on Court Decisions, Not Statutes

It is notable that Maryland is one of the minority of states that effectively has no self-defense statutes.  There is a statute for civil immunity for defense of dwelling or place of work, and another covering battered spouse syndrome, but that’s about it.

Instead, Maryland’s embodiment of the Five Principles of the Law of Self Defense must be found in case law (court decisions). A recent statement of MD’s law of deadly-force self-defense can be found in Wilson v. Maryland, 7 A.3d 197 (MD, Ct. Spec. App. 2010):

We have summarized the elements necessary to justify a homicide, other than felony murder, on the basis of self-defense in the following terms:

(1) The accused must have had reasonable grounds[5th Principle] to believe himself in apparent imminent or immediate [2nd Principle] danger of death or serious bodily harm from his assailant or potential assailant;

(2) The accused must have in fact believed himself in this danger; [5th Principle]

(3) The accused claiming the right of self defense must not have been the aggressor or provoked the conflict [1st Principle]; and

(4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded. [3rd Principle]

and, in addition:

It is the duty of the defendant to retreat or avoid danger if the means to do so are within his power and consistent with his safety; but if the peril is so imminent that he cannot safely retreat, he has a right to stand his ground and defend himself. [4th Principle]

Given the paucity of statutory authority to look at in this case — as was so richly available in the George Zimmerman, Michael Dunn, and even Marissa Alexander trials — you can count on Legal Insurrection to dig through the case law to find the relative law to apply to this case.

So, keep your eyes on Legal Insurrection for continued coverage of the Joseph Walker case, pre-trial, during the trial, and post-verdict.

FBI Says Violent Crime Fell While Gun Sales Hit All-Time High in 2013

February 24, 2014

According to FBI statistics, the increase in gun sales coincides with a decrease in crime: “All offenses in the category of violent crime” fell during the first six months of 2013, compared to the same time period in 2012

From The New American by Raven Clabough, February 21, 2014

The Obama administration’s unfriendly stance toward the Second Amendment has had the opposite effect on the American people, who have been purchasing guns in record numbers. Smith & Wesson Holding Corp. reportedly put out a record number of firearms in 2012, according to government data.

Gun Production Continues to Rise

Bloomberg News writes, “More than 8.57 million guns were produced in 2012, up 31 percent from 6.54 million in 2011, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives. Almost as many guns — 26.1 million — were produced during Democrat Barack Obama’s first term as president as during the entire eight-year presidency of his Republican predecessor, George W. Bush, the ATF shows.”

The data seem to confirm a trend that more people purchase guns under Democratic administrations than Republican ones, since Democratic presidents are more likely to restrict firearms sales than Republicans. For example, following the tragedy at Sandy Hook in 2012 and the Aurora movie theater shooting, President Obama pushed for stricter gun measures.

Unfortunately for the president, his efforts have had the opposite effect than those intended. Immediately after the tragic December 2012 shooting at Sandy Hook Elementary School, gun sales soared and companies such as Smith & Wesson and Sturm & Ruger enjoyed significant production increases.

According to the Washington Times, monthly gun purchase background checks set an all-time peak in the same month as the Newtown shooting. But the shooting did little to slow that process, as the next four highest monthly totals for the national background check system all followed the 2012 shooting, in 2013.

“2013 was the best year for firearm sales (commercial, domestic) in history — period! That’s true for NH to Hawaii,” said Richard Feldman, president of the Independent Firearm Owners Association in Rindge, N.H. “Ruger alone sold well over one million guns this year.”

Some gun advocates even joked that President Obama is the gun industry’s best salesman.

“Barack Obama is the stimulus package for the firearms industry,” said Dave Workman, senior editor of Gun Mag, a publication of the 2nd Amendment Foundation, a gun-ownership rights group. “The greatest irony of the Obama administration is that the one industry that he may not have really liked to see healthy has become the healthiest industry in the United States.”

Following President Obama’s re-election in 2012, shares of Smith & Wesson increased 9.6 percent, while those for Sturm Ruger & Co. rose 6.8 percent. These increases followed an announcement by President Obama that he would consider reintroducing a ban on civilian purchases of military-style assault weapons.

Even worse for the Obama administration, the increase in gun sales coincides with a decrease in crime, according to FBI statistics, which report, “All offenses in the category of violent crime” fell during the first six months of 2013, compared to the same time period in 2012.

The data show that murders declined by 6.9 percent, forcible rape declined by 10.6 percent, aggravated assaults decreased by 6.6 percent, and robbery offenses dropped by 1.8 percent.

Second Amendment opponents assert that the increasing sales are a result of gun-rights groups “demoniz[ing]” Barack Obama during the 2008 and 2012 presidential campaigns.

Brian Malte, senior policy director of the Brady Campaign to Prevent Gun Violence, states, “We see the percentage of households owning guns declining, and that indicates that those who already own guns are buying more of them.”

However, history reveals that President Obama is not the only Democratic president to witness the rise in gun production. Under President Bill Clinton, more than 33 million guns were manufactured, reports Bloomberg News, nearly five million more than were produced under George H.W. Bush’s presidency.

But Mike Bazinet, spokesman for the National Shooting Sports Foundation, notes other causes for the rise in gun demand, including Supreme Court decisions that have struck down gun restrictions, new laws permitting people to carry concealed weapons, and the growing popularity of sport shooting.

The American people have been given significant cause for concern regarding their Second Amendment rights, reveal investigations into the “Fast and Furious” gun-walking scandal.

Representative Darrell Issa, chairman of the House Oversight Committee that is leading the investigation into the scandal, told ABC News’ Jake Tapper that pertinent e-mails revealed the agenda of the operation was to advocate for greater gun control, not, as was alleged, to pursue criminal prosecutions of drug cartel members.

According to CBS News, “ATF officials didn’t intend to publicly disclose their own role in letting Mexican cartels obtain the weapons, but emails show they discussed using the sales, including sales encouraged by ATF, to justify a new gun regulation called ‘Demand Letter 3.’ That would require some US gun shops to report the sale of multiple rifles or ‘long guns.’ ”

An e-mail from ATF Field Ops Assistant Director Mark Chait to ATF Phoenix Special Agent Bill Newell, who was in charge of Fast and Furious, showed Chait asking Newell for “anecdotal cases to support a demand letter on long gun multiple sales” based on sales included in Fast and Furious.

In addition to these revelations, an article for observed that citizens “clinging to their guns” have legitimate concerns:

Less than 24 hours after President Obama’s re-election, the U.S. Mission to the United Nations helped move the U.N.’s Arms Control Treaty a step closer to enactment. America joined 157 other nations in voting Wednesday to finalize the treaty in March. None was opposed and there were 18 abstentions.

U.N. delegates and gun-control activists had complained that talks collapsed in July largely because Obama feared attacks from Republican rival Mitt Romney if his administration was seen as openly supporting the pact. But once the election was over, the Obama administration had more flexibility to pull the trigger on supporting the pact.

And in 2013, the Obama administration had been accused of attempting to crowd out private consumers in the ammunition market after it was revealed that the Department of Homeland Security had bought up to 1.6 billion rounds of ammunition.

Armstrong Co., PA Sheriff Hires First Female Deputy

February 24, 2014

From The Tribune-Review by Brigid Baetty, Feb. 22, 2014

Diane Graham made history on Feb. 10 when she started her job at the Armstrong County Courthouse.

Diane Graham,39, made history Feb. 10 when Sheriff Bill Rupert hired her as Armstrong County’s first female sheriff’s deputy. Graham is pictured here with Rupert holding a sheriff’s deputy jacket while waiting for her uniform to come in.

That was the day Graham, 39, became the first woman to be hired as an Armstrong County sheriff’s deputy.

The married mother of three sons is at ease and comfortable at her new post and seems to become nervous and hesitant only while talking about herself.

With her long, wavy brown hair and shy smile, it may be hard for some to believe she has spent the past 19 years working as a corrections officer at the Armstrong County Jail.

But Sheriff Bill Rupert said people shouldn’t be fooled by Graham’s seemingly shy demeanor.

“She knows how to handle herself,” he said.

Graham said she hadn’t originally planned to get into law enforcement.

“I wanted to do something outdoors, something to do with forestry,” she said.

Graham likes camping and riding a four-wheeler. She grew up in North Buffalo Township, attended Kittanning High School and graduated in 1992 from Lenape Technical School in Manor, where she studied agricultural science.

But once out of school, she applied for the position of corrections officer at the Armstrong County Jail for one simple and practical reason: She needed a job.

“I didn’t regret my choice, but I missed the outdoors when I was trapped behind walls and bars,” she said.

Now she is enjoying the camaraderie of her fellow deputies while performing duties that often take her outside beyond the confines of the courthouse. But, she said, she misses the friendships she had with the jail staff.

Jail Warden David Hogue said Graham works well with people and has been a good, dependable officer.

“She respects inmates and they respect her in return,” he said. “It’s bittersweet that we’re losing her, but it’s good for the county in the long run.”

Graham is an asset to the Sheriff’s Department – not just because of her experience in corrections – but because the jail had to provide a female officer about twice a month to accompany women inmates being taken to and from the jail, Hogue said.

“I stole her from the jail,” Rupert said, adding that Graham is able to provide supervision for females during restroom stops while transporting inmates and can assist the county’s drug task force team if a woman needs to be searched.

It was an easy transition for Graham, Rupert said, because she remains a county employee so everything, including her pension, just transferred over from her years at the jail.

“The time was right for her and the time was right for the Sheriff’s Department,” Rupert said. “We needed a female deputy because the number of women involved in crimes – especially drug-related crimes – has been on the increase.”

Hogue agreed, saying that when he started at the jail in 1984, there were times when the jail had no female inmates at all. A recent jail count showed that of the total 144 inmate population, 24 were women.

Graham joins the ranks of six other full-time deputies whose duties include transporting inmates, providing security for the courthouse and serving court papers.

Deputies also assist the coroner at fatal crashes and suspicious deaths and provide assistance to police at crime scenes, Rupert said.

Graham said her family is proud of her accomplishments and of her new position.

“I didn’t get into the field I thought I’d get into,” Graham said. “But I’m happy with my decision and I like helping the community.”

Court Challenge Mounted After Congress grants Obama ‘Free Rein for Martial Law’

February 21, 2014

‘Subjugation of citizenry’ looming as U.S. becoming ‘police state’

From by Bob Unruh, January 24, 2014

Some of the nation’s most respected legal teams are asking the Supreme Court to take up a challenge to the indefinite-detention provisions of the National Defense Authorization Act, charging the law has created the framework for a police state.

The controversial provision authorizes the military, under presidential authority, to arrest, kidnap, detain without trial and hold indefinitely American citizens thought to “represent an enduring security threat to the United States.”

Journalist Chris Hedges is among the plaintiffs charging the law could be used to target journalists who report on terror-related issues.

A friend-of-the-court brief submitted in the case states: “The central question now before this court is whether the federal judiciary will stand idly by while Congress and the president establish the legal framework for the establishment of a police state and the subjugation of the American citizenry through the threat of indefinite military arrest and detention, without the right to counsel, the right to confront one’s accusers, or the right to trial.”

The brief was submitted to the Supreme Court by attorneys with the U.S. Justice Foundation of Ramona, Calif., Friedman Harfenist Kraut & Perlstein of Lake Success, N.Y., and William J. Olson, P.C. of Vienna, Va.

The attorneys are Michael Connelly, Steven J. Harfenist, William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan and Robert J. Olson.

They are adding their voices to the chorus asking the Supreme Court to overturn the 2nd U.S. Circuit Court of Appeals, which said the plaintiffs didn’t have standing to challenge the law adopted by Congress.

The brief is on behalf of U.S. Rep. Steve Stockman, Virginia Delegate Bob Marshall, Virginia Sen. Dick Black, the U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America, Center for Media & Democracy, Downsize DC Foundation, Downsize, Free Speech Defense & Education Fund, Free Speech Coalition, Western Journalism Center, The Lincoln Institute, Institute on the Constitution, Abraham Lincoln Foundation and Conservative Legal Defense & Education Fund.

The 2014 NDAA was fast-tracked through the U.S. Senate, with no time for discussion or amendments, while most Americans were distracted by the scandal surrounding A&E’s troubles with “Duck Dynasty” star Phil Robertson.

Eighty-five of 100 senators voted in favor of the new version of the NDAA, which had already been quietly passed by the House of Representatives.

Hedges, a Pulitzer Prize-winning journalist, and others filed a lawsuit in 2012 against the Obama administration to challenge the legality of an earlier version of the NDAA.

It’s Section 1021 of the 2012 NDAA, and its successors, that drew a lawsuit by Hedges, Daniel Ellsberg, Jennifer Bolen, Noam Chomsky, Alex O’Brien, Kai Warg All, Brigitta Jonsottir and the group U.S. Day of Rage. Many of the plaintiffs are authors or reporters who stated that the threat of indefinite detention by the U.S. military already had altered their activities.

“It’s clearly unconstitutional,” Hedges says of the bill. “It is a huge and egregious assault against our Republic. It overturns over 200 years of law, which has kept the military out of domestic policing.”

Hedges is a former foreign correspondent for the New York Times and was part of a team of reporters awarded a Pulitzer Prize in 2002 for the paper’s coverage of global terrorism.

The friend-of-the-court brief warns the precedent “leaves American citizens vulnerable to arrest and detention, without the protection of the Bill of Rights, under either the plaintiff’s or the government’s theory of the case.

“The judiciary must not await subsequent litigation to resolve this issue, as the nature of military detention is that American citizens then would have no adequate legal remedy,” the brief explains.

Section 1021 allows the detention of anyone, including American citizens, by the military, if the president considers that person to have helped with terror. It’s different from the Authorization for the Use of Military Force, which was adopted immediately after the Sept. 11 terror attacks, because while that law allows detention, there must be something linking them to the Sept. 11 attacks.

“Section 1021 authorizes detention, potentially forever, and even rendition of American citizens to foreign nations,” the brief points out. “If this court refuses to hear the Hedges challenge, it will leave American citizens subject to unconstitutional military arrest and detention.

“If this court does not grant the petition, there is no reason to believe the U.S. presidents would cease to assert ‘the right to place certain individuals [including American citizens] in military detention, without trial.’ There would continue to be no statutory constraint on an arrest being authorized by a military officer of unspecified rank. There would be no protection provided by the requirement of a grand jury indictment. There would be no requirement of an arrest warrant issued by an Article II judge supported by a sworn affidavit showing probable cause of the commission of a specific crime. Neither would there be any protection against use of compelled testimony, or against an violation of due process of law. There would be no civilian proceedings whatsoever against the person detained. Indeed, there is no requirement that the individual being detained has committed any federal crime, and military detentions could be used to circumvent the protections afforded American citizens by the treason clause of the U.S. Constitution.”

It describes a scary scenario.

“After the string of black Suburbans pulls away, it is difficult to believe that the military would provide relatives or lawyers with any information whatsoever as to where the person being detained was being held.”

After all, it explains, Congress specifically expressed its desire for the detention provision to apply to American citizens even on American soil by rejecting multiple amendments that would have exempted them.

And Obama, also, affirmed the detention authority, stating, “I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens … My administration will interpret Section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”

Simply stating that means it could be interpreted in a contrary manner.

At the trial court level, U.S. District Judge Katherine B. Forrest issued a Memorandum Opinion and Order that struck the provision as unconstitutional.

Multiple states have passed laws banning its enforcement inside those states. Herb Titus, a constitutional expert, previously told WND Forrest’s ruling underscored “the arrogance of the current regime, in that they will not answer questions that they ought to answer to a judge because they don’t think they have to.”

The judge explained that the plaintiffs alleged that paragraph 1021 of the NDAA is “constitutionally infirm, violating both their free speech and associational rights guaranteed by the 1st Amendment as well due process rights guaranteed by the 5th Amendment.”

She noted the government “did not call any witnesses, submit any documentary evidence or file any declarations.”

“It must be said that it would have been a rather simple matter for the government to have stated that as to these plaintiffs and the conduct as to which they would testify, that [paragraph] 1021 did not and would not apply, if indeed it did or would not,” she wrote.

Instead, the administration only responded with, “I’m not authorized to make specific representations regarding specific people.”

“The court’s attempt to avoid having to deal with the constitutional aspects of the challenge was by providing the government with prompt notice in the form of declarations and depositions of the … conduct in which plaintiffs are involved and which they claim places them in fear of military detention,” she wrote. “To put it bluntly, to eliminate these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of 1021 would have been simple. The government chose not to do so – thereby ensuring standing and requiring this court to reach the merits of the instant motion.

“Plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the 1st Amendment,” she wrote.

Experts have expressed concern that even a journalist who has interviewed a member of a terror group may be considered to have rendered aid to that group.

The government appealed the trial judge’s ruling to the 2nd Circuit, which abruptly ruled that the plaintiffs had no right to challenge the law.

This Is Not The Purpose of Police and Law Enforcement in a Free Society

February 21, 2014

Woman Dragged to Jail for Recording Florida Deputy

From by Joe Kovacs, February 19, 2014

“Get off of me! You are breaking the law!” shouts a South Florida woman as a Broward County Sheriff’s Deputy enters her car and drags her out, all because she was recording her traffic stop on Interstate 95.

Now, the police agency is facing serious legal action for alleged battery, false arrest and false imprisonment.

The saga of single mother Brandy Berning began last March when she was driving alone in the HOV carpool lane, which is designed for vehicles carrying more than one passenger during rush hour.

She was pulled over by Broward Sheriff’s Lt. William O’Brien, who told Berning about her traffic infraction. That’s when she then informed him she was recording audio of their conversation on her cell phone.

“Oh, I forgot to tell you I was recording our conversation,” Berning said on the recording.

“I’m sorry?” asked the deputy.

“I have to tell you I forgot to tell you I was recording our conversation,” she repeated.

“OK, well I have to tell you, you just committed a felony,” responded O’Brien. “Give me your phone.”

When Berning steadfastly refused to hand the officer her phone, the rhetoric escalated.

“I’m allowed to record our conversation!” exclaimed Berning. “I know my rights.”

“I’m gonna tell you one more time, you are committing a felony, hand me your phone,” said the officer.

“Get out of my car,” responded Berning, as the deputy entered the driver’s side of her vehicle.

“I know the law better than you, believe me,” pressed the lieutenant.

“No. I will go to court. I’m not giving you my phone,” Berning maintained.

“You’re gonna end up in jail if you don’t hand me that phone – tonight!” O’Brien warned. “I am giving you a lawful order to hand me that phone.”

Berning: “I told you I was recording the conversation.”

Lt. O’Brien: “You did not! Hand me the phone.”

Berning: “I just told you.”

Lt. O’Brien: “I’m getting the phone.”

Berning: “You’re not getting my phone.”

Lt. O’Brien: “Yes, I am.”

Berning: “No you’re not.”

Lt. O’Brien: “Yes I am.”

Berning: “Sorrrry!”

That’s when a scuffle began as the officer grabbed Berning in an effort to remove her from the vehicle.

“Get off of me! You are breaking the law right now!” Berning repeated numerous times. “Get out of my car! I didn’t do anything wrong.”

“You are under arrest,” the officer informed her.

As she was being taken into custody, she informed O’Brien, “You’ve injured me and everything. You are in trouble.”

“OK, we’ll see,” the deputy responded.

Berning was initially charged with traffic violations and resisting arrest, but interestingly, she was not charged with illegally recording the pair’s conversation.

She spent one night in jail, but all charges were eventually dropped.

In the aftermath of the arrest, Berning told her story to WPLG-TV, the ABC affiliate in South Florida.

“At least one of [the backup officers] had their gun out. They dragged me out by my arm,” she explained. “I’m just being dragged on the ground and then they throw me onto the cop car.”

She was most upset about the officer “touching me, trying to take my personal belongings from me, trying to put me in jail for something so small.”

She told the station she suffered numerous injuries as a result of the scuffle.

“I had a bruise on my cheek, and my leg got cut. I have a scar on my leg, three large wound scrapes down my leg, and there was a rock lodged in my leg. And he had sprained my wrist.”

Berning’s lawyers have now informed the sheriff’s office of their intent to file suit.

“There was a battery that occurred. False arrest. False imprisonment,” said attorney Eric Rudenberg.’

“[The officer] shouldn’t have had any concern about what she was doing with her cell phone as long as it wasn’t impeding his ability to write the citation, give her the citation and send her on her way,” added attorney Mike Glasser.

He told the South Florida Sun-Sentinel that Berning had a right to record O’Brien because the law has shown that police performing their duties have no “reasonable expectation of privacy.”

Florida is a two-consent state when it comes to recordings, meaning both parties are required to know they’re being recorded.

Berning recorded about 15 seconds of her discussion with the officer before informing him of her action.

This incident comes on the heels of a similar confrontation with a Broward deputy in 2011.

Officer Paul Pletcher faces criminal charges for allegedly attacking a woman and stealing her phone from her when he realized she was recording their traffic stop.

Pletcher is accused of burglary, battery, criminal mischief and petty theft, and a hearing is set for this Friday that could set a date for his trial.

The Sun-Sentinel reports: “Pletcher allegedly took the phone, and drove away while throwing it in pieces out the window. BSO recovered the phone and found a 22-second recoding of an argument and what sounds like a struggle.”

The First Amendment to the U.S. Constitution allows the legal recording of police activity, as long as it doesn’t interfere with the officers’ duties.

Berning told the Sun-Sentinel she decided to take legal action when “another sheriff’s deputy, who she didn’t want to identify, spoke to her while she was in jail and suggested she sue because what O’Brien did was wrong.”

“Finding they’re liable for what they did, using what we think was excessive force just because she was recording him on her phone, that would drive home the point that police officers can’t do this,” said her attorney Rudenberg.

Berning agrees.

“The cops should be there to protect us and to serve justice when it’s needed,” she said, “but not step over those boundaries and take advantage.”

The Broward Sheriffs Office has made no comment regarding the Berning case, but it did send WPLG an internal bulletin from July informing deputies that citizens can legally record them.

Ohio National Guard Training Envisions 2nd Amendment Supporters as Domestic Terrorists

February 20, 2014

From by Jesse Hathaway, February 10, 2014

Documents from an Ohio National Guard (ONG) training drill conducted last January reveal the details of a mock disaster where Second Amendment supporters with “anti-government” opinions were portrayed as domestic terrorists.

Ohio National Guard 52nd Civil Support Team

The ONG 52nd Civil Support Team training scenario involved a plot from local school district employees to use biological weapons in order to advance their beliefs about “protecting Gun Rights and Second Amendment rights.”

Portsmouth Fire Chief Bill Raison told NBC 3 WSAZ-TV in Huntington, West Virginia that the drill accurately represented “the reality of the world we live in,” adding that such training “helps us all be prepared.”

Internal ONG documents provided to Media Trackers after repeated delays provide further context to what WSAZ-TV reported last winter.


In the disaster-preparedness scenario, two Portsmouth Junior High School employees poisoned school lunches with mustard gas, acting on orders from white-nationalist leader William Pierce.

The ONG team discovered biological weapons being produced in the school, requiring activation of containment and decontamination procedures.

Participants in the disaster drill located documents expressing the school employees’ “anti-government” sentiments, as well as a note identifying Pierce as the fictional right-wing terrorists’ leader.

ONG’s 52nd Civil Support Unit participated in a similar drill involving left-wing terrorists with Athens County first responders last year; public officials apologized for that training the next day in response to complaints from local environmentalist groups.

No apology to Ohioans who support limited government and the Second Amendment appears to be forthcoming.

Scioto County Emergency Management Agency director Kim Carver refused to comment, telling Media Trackers she was “not going to get into an Ohio Army National Guard issue that you have with them.”

Ohio National Guard Communications Director James Sims II suggested Media Trackers was “inferring” from the ONG document’s contents as opposed to “what’s actually in the report.”

After excerpts of the report were read to him, Sims said it was “not relevant” to understand why conservatives may feel unduly targeted by ONG’s training scenario.

“Okay, I’m gonna stop ya there. I’m going to quit this conversation,” Sims concluded. “You have a good day.”

Buckeye Firearms Association spokesman Chad Baus told Media Trackers that “it is a scary day indeed when law enforcement are being trained that Second Amendment advocates are the enemy,”

“The revelation of this information is appalling to me, and to all citizens of Ohio who are true conservatives and patriots, who don’t have guns for any other reason than that the Second Amendment gives them that right,” Portage County TEA Party Executive Director Tom Zawistowski said in a separate Media Trackers interview.

Media Trackers reached out to Portsmouth-area state legislators Representative Terry Johnson and Senator Joe Uecker for comment about the drill, which took place within their respective districts. Neither replied to phone calls or emails in time for publication.

ONG’s January 2013 training exercise is one of many instances where government officials have identified those with limited-government or pro-Second Amendment opinions as potential terror threats.

In 2009, the U.S. Department of Homeland Security warned law enforcement agencies that a predicted rise in“right-wing extremism” would be fueled by “proposed imposition of firearms restrictions and weapons bans” and “the election of the first African American president.”

Throughout modern history, groups and individuals associated with left-wing causes have proven far more likely to commit acts of domestic terror.

In 2012, members of the anarcho-socialist Occupy Cleveland movement were arrested and prosecuted for attempting to destroy the Brecksville-Northfield High Level Bridge with explosives, to commemorate International Workers’ Day.

Last year, leftist groups Earth First and the Animal Liberation Front (ALF) claimed responsibility for the sabotage and property destruction of businesses in Washington and Van Wert counties.

[Editor’s note, 02/12/2014: Corrected Portsmouth Fire Chief Bill Raison’s name and title in the third paragraph, both of which were incorrect in the WSAZ-TV story cited here.]

Springdale Borough, PA Officials Divided Over Duties of New Police Chief

February 19, 2014

From The Tribune-Review by Brian C. Rittmeyer, February 19, 2014

Springdale Councilman Gene Polsinelli compared the relationship between council and the new police chief to a marriage.

Nine months after Police Chief Julio Medeiros III was hired, and about four months since he took an oath of office, the partners are still “getting to know one another,” Polsinelli said.

Springdale Police Chief Julio F. Medeiros III defends his decisions to council members during a meeting at the Springdale Borough Building on Tuesday, Feb. 18, 2014. — Erica Dietz  |  Valley News Dispatch

Springdale Police Chief Julio F. Medeiros III defends his decisions to council members during a meeting at the Springdale Borough Building on Tuesday, Feb. 18, 2014.

Polsinelli offered the comparison Tuesday after residents again questioned council members about the apparent acrimony among and between them, Mayor Ken Lloyd and Medeiros that last week led a resident to compare them to arguing children.

Resident Jeff Hartz said he felt council members were badgering the chief, whom he praised for composure under fire.

“I’m concerned why you’re not working with this man,” Hartz said.

“He’s the most professional guy we ever had in Springdale,” he said. “I feel comfortable with this man being our police chief.”

Resident Frank DePoli said he was embarrassed by what he saw.

“You guys need to calm down and work with him,” he said. “You guys need to start working together. How about tomorrow?”

Polsinelli said things will smooth out once Medeiros proves himself.

“It’s going to take a little while for the chief to gain all our confidence,” Polsinelli said. “He’s a total stranger to us. We’re getting to know him.”

But Councilman Jason Fry disagreed, saying all involved — council, mayor and Medeiros — need to sit down face-to-face and settle the disputes.

“It needs to be remedied,” he said.

Just what Medeiros is supposed to be doing as police chief is part of the problem. Although he has a contract — a five-year deal paying $78,000 in the first year — he does not have a job description spelling out his duties.

Council has said the job was advertised as a “working chief of police,” meaning he would count as an officer. Lloyd has said that the chief is primarily an administrator and that his time and efforts are needed to develop much-needed policies and procedures for the department.

Medeiros has said he would not have taken the job if it meant being a patrol officer with a chief’s title.

The job of getting the department to where it needs to be is “immense,” he said. “This isn’t something you whip together.”

While Medeiros had previously given council a copy of his own job description, the borough has been drafting its own. The borough’s version of Medeiros’ job description is expected to be ready for approval in March, Fry said.

The hiring of two part-time officers revealed a few points of contention.

Medeiros wanted council to hire two officers, saying their backgrounds had already been checked. But Polsinelli said past practice was for council to interview candidates first, and then have background checks run on those they’re interested in hiring.

Polsinelli said he would not hire anyone the council had not met or interviewed.

Medeiros said he was told by council President David Finley to get the officers on board; Finley did not attend the meeting.

Council expressed concern about Medeiros delegating to other officers work they expect him to be doing, especially when those officers are part-timers. Councilman John Molnar said when officers are given other work, such as performing background checks, that means they’re in the office more than on the street.

Polsinelli said delegating duties works well in departments that have more than one officer on duty at a time.

“The people in town want to see their police patrolling,” Polsinelli said. “There’s not enough patrolling of the streets.”

That led to another debate between council and Lloyd over who controls the police department. Lloyd argued that under the borough code, it’s the mayor.

Lloyd participated in the meeting by telephone. He said he’d be back in two weeks after spending the winter in Florida, which he said he planned before mounting a last-minute write-in campaign for the mayor’s office.

Council members were visibly frustrated when Lloyd began reading from the state’s borough code and often interrupted him.

“We need to stop all this,” Lloyd said. “I am the supervisor of the police chief. He is not going to be treated like this.”

Council’s power over the police department is “very limited,” Lloyd said.

“We are going to interview whoever we want to interview, and we’re going to present them to you,” he said.

Fry said that under the borough code, Finley should have served as interim mayor in Lloyd’s absence.

But Solicitor Craig Alexander said Lloyd’s participation in meetings by telephone counts toward carrying out his duties as mayor.

What the Fire Chief Said!

February 19, 2014

In South Los Angeles, a 4-plex home was destroyed by a fire.

A Mexican family of 6, all welfare recipients and gang members,lived on the first floor. They all died.

An Islamic group of 7 welfare cheats, all illegally in the country from Kenya, lived on the second floor. They, too, all perished.

Six LA, Hispanic, gang bangers & ex-cons lived on the first floor also.They, too, died.

A white elderly couple lived on the second floor also.The white couple survived the fire.

Jesse Jackson, John Burris and Al Sharpton were furious!

They flew into LA and met with the fire chief.

On camera, they loudly demanded to know why blacks, Muslims and Hispanics all died in the fire, and why only the white couple lived?

The Fire Chief said, “They were at work.”

Black Liberation Army Militants Who Admit Killing NY Officers Seek Parole

February 17, 2014

Since they became eligible for parole a decade ago, two aging ex-members of a militant black power group serving 25-years-to-life sentences for the 1971 killings of two New York City police officers have been routinely rejected for release after displaying little or no remorse.

Starting this week, Herman Bell and Anthony Bottom will again go before the state Parole Board to ask for freedom. But this time, it will be after admitting for the first time that they were involved in the execution-style slayings.

The admissions have reignited a debate over whether the men, who still call themselves political prisoners, have become rehabilitated after four decades in prison or are simply more willing to game the system.

“As long as they keep admitting they’re political prisoners, then they aren’t taking responsibility for their actions,” said Diane Piagentini, the widow of one of the slain officers who still lives in the same Long Island home she bought with him before he was killed at 28. “They should never be paroled.”

The case dates to the late 1960s and early ’70s, when a violent offshoot of the Black Panthers called the Black Liberation Army sanctioned symbolic killings of police officers regardless of their race in New York and California and robbed banks to finance its activities, authorities have said. Declassified documents show the FBI then initiated a covert campaign to infiltrate and disrupt the BLA and other violent radical movements.

BLA members Bell, Bottom and an accomplice, who died in prison in 2000, called themselves the “New York 3.” They denied killing the officers and insisted they’d been framed during their trial and after their convictions in 1975. Five years ago, they accepted plea deals and served probation sentences for their roles in the killing of a police sergeant shot inside a San Francisco stationhouse.

In their 2012 appearances before parole officials, both men admitted their roles in killing officers Joseph Piagentini and Waverly Jones, 33. The officers were shot multiple times after they’d responded to a report of a domestic dispute at a Harlem housing complex on May 21, 1971. Prosecutors said it was a trap set by Bell and Bottom.

“I began to see things in a way that I wanted to come clean,” Bell said in 2012, according to a transcript. “I wanted to accept that fact that I committed this offense, I wanted to show remorse, but I didn’t really know how to express that to the Board.”

When pressed on why he’d maintained his innocence for so long, Bottom said, according to his transcript, “Who wants to acknowledge, who really wants to deal with the issues of killing another human being?”

Since being incarcerated, Bell, 66, has earned bachelor’s and master’s degrees, has learned to play the flute and corresponds with homeless New York City children. Bottom, now 62, has also earned a college degree, was credited with stopping prison riots and helped found an organic farm operation that brings healthy food to poor families.

Assessments have found both men to have a low risk of returning to prison, and each claims to have family support and job opportunities awaiting them on the outside.

Perhaps most surprisingly, the son of one of the officers, Waverly Jones Jr., has written in support of their release and told the Daily News of New York last month that Bell had served decades without getting “into so much as an argument.”

Others are also pushing for the pair’s release.

“If you want to talk about justice, it’s been served,” said Anne Lamb, the New York City co-chairwoman of The Jericho Movement, a group that advocates for political prisoners. “They have no reason to hold them in prison. It’s not going to bring back Officer Piagentini or Officer Waverly Jones.”

Advocates for the men argue the state Parole Board is unduly swayed by the powerful Patrolmen’s Benevolent Association and others who exert pressure on parole denials even after the convicts serve their minimum sentences and meet all the other criteria required for release.

But the PBA is unfazed by the criticism and since September 2012 has maintained a website that has generated about 850,000 letters urging commissioners not to release Bell, Bottom and others convicted of killing a total of some 66 city officers.

Organizers hope to reach a million letters by next week, when Bell goes before the board for a sixth time. Bottom appears for his seventh time in June.