On 27 October, 2020, Judge Christopher Murray, at the Michigan Court of Claims, issued an opinion striking down Secretary of State Jocelyn Benson's edict banning the open carry of guns at all polling places on election day. The edict was issued on 16 October. Tom Lambert and several right to bear arms groups sued to stop the order extral-legal order on 22 October, 2020. From freep.com:
"The court’s duty is not to act as an overseer of the Department of State, nor is it to impose its view on the wisdom of openly carrying firearms at polling places or other election locations," he said. "More importantly, its constitutional role is properly limited to only declaring what the law is, not what it should be."
Murray handed down his ruling the same day the Detroit branch of the NAACP said its members and area attorneys will monitor polls across the city and state on Election Day and will report to police and prosecutors any instances of voter intimidation or voter suppression, including voters feeling threatened by gun-carrying individuals “watching” the polls.
Radical leftist Secretary of State Jocelyn Benson, and elected in the anti-Trump wave in 2018, and Attorney General Dana Nessel, issued statements saying they will appeal the decision.
There is already a state law banning voter intimidation at the polls. Benson's ban on open carry is a blanket statement which defines open carry as voter intimidation.
Groups pushing for citizen disarmament have been trying to define open carry as illegitimate for decades. During the last three decades, organized open carry groups and civic minded open carry individuals have been demonstrating exactly the opposite.
Open carry demonstrations have been some of the most peaceful and law abiding, in spite of predictions of violence.
Assistant Attorney General Heather Meingast claimed the Secretary of State can issued an edict banning open carry at the polls because there is no state law specifically allowing open carry at the polls.
The Michigan Constitution limits the powers of the Secretary of State. The ability of the Secretary of State of issue regulations is covered by the Administrative Proceedures Act (APA) of Michigan, as acknowledged by Judge Murry. Secretary of State Benson did not follow the APA, which renders the ban on open carry void, according to the lawsuit and the court opinion.
For the last hundred years, the ability of officials to issue law by dictat has been part of the power grab by Progressives, in their mostly successful attempt to move legislative power from the legislatures to administrative agencies. Requiring specific rule making procedures has been one method used to restrict the abuse of the authority.
In this case, there is a direct conflict because of the separation of powers between the executive branch and the legislative branch. Republican Speaker of the House, Lee Chatfield applauded the Judge Murray's decision. From tribuneledgernews.com:
“Time after time the courts have struck down this administration when it overreaches,” Chatfield wrote on Twitter. “Firearms. Line 5. Redistricting. Vaping. Emergency powers. Nobody is above the law. It can’t be sidestepped. We have a democratic process. It needs to be followed.”
In his decision, Murray noted that the Democratic secretary of state’s prohibition on the open carry of firearms at polling places appeared to be more than an interpretation of existing statute. It was a rule that should be subjected to the rule-making process, he wrote.
The judicial branch (the court) has ruled the Secretary of State overstepped her authority. The Attorney General, Dana Nessel and Benson are appealing the decision to the Michigan Court of Appeals.
It is unknown if the appeal will be heard before the election, which is scheduled one week from the date the appeal was made.
©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
One of the residents reportedly retrieved a firearm and then confronted the man. Police say shots were fired during the confrontation, resulting in Santos-Esqueda reportedly fleeing the scene in a white Jeep.
TPD said "detectives believe Silva was driving the white Jeep and was
parked
several yards away waiting for Santos-Esqueda." Silva was allegedly
shot when during the confrontation between Santos-Esquda and the
resident.
Santos-Esquda was also located and detained nearby the home at 1700 block of E. Holladay St.
He was later arrested for attempted theft of means of transportation, attempted third-degree burglary, possession of burglary tools, and first-degree felony murder.
A man was critically injured in a shooting. A property owner checked on some property which had sheds on it. The owner shot someone who he says was breaking into a shed.
Deputies said Ramos was found shot to death around 10:45 p.m. on Lake Pleasant Road in northern Orange County. Investigators said Ramos was among several people involved in a home invasion robbery attempt around 10:10 p.m. on the 100 block of South Lake Pleasant Road.
Image from lawsuit, public document, cropped and scaled by Dean Weingarten
Michigan Secretary of State Joycelyn Benson has taken the dictatorial step of banning open carry at all polling places on election day in Michigan.
Open carry, in accordance with Michigan law, has been legal in Michigan for the entire history of the state.
It appears, by caprice or for political purposes, Benson has decided to change the long precedent for the 2020 elections. Benson is acting as a dictator, imposing restrictions the legislator and governor have refused to pass, although they have had numerous opportunities to do so.
Benson's stated excuse is that people seeing others exercise their Second Amendment rights, might feel intimidated, and thus not vote. No other Michigan Secretary has issued such an order.
Thomas Lambert, Michigan Open Carry, Inc., Michigan Gun Owners, and Michigan Coalition for Responsible Gun Owners have all joined in a lawsuit against Secretary of State Joycelyn Benson, Michigan Attorney General Dana Nessel, and the Director of State Police Col. Joe Gasper, to obtain a declaratory injunction against the illegal order.
4. The Secretary of State's pronouncement has created a Hobson's choice for those wishing to exercise both their 2nd Amendment right to self-protection and their fundamental right to vote. Under the pronouncement and associated threat of arrest, one mus choose on right or the other, but not both. If one wishes to vote, one must surrender their 2nd Amendment and Mich. Const. 1963, Art. I, § 6 rights. If one wishes to exercise the right of self-protection, one must surrender their right to vote. The practical effect of the pronouncement is to disenfranchise 2nd Amendment and Mich. Const. 1963, Art. I, § 6 supporting voters.
5. Plaintiffs seek a judicial declaration that the secretary of State's pronouncement, regulation, directive, or edict is an ultra vires act. Further, Plaintiffs seek a judicial declaration that the secretary of State's pronouncement, regulation, directive, or edict is in violation of Michigan law, an ultra vires act, and void. Plaintiffs also seek injunctive relieve with immediate consideration thereof.
The leader of a group representing 385 Michigan police chiefs says the edict prohibiting open carry at all polling places is contrary to existing law. From detroitnews.com:
The head of the group that represents 385 Michigan police chiefs warned Monday that officers won't be able to enforce Secretary of State Jocelyn Benson's ban on openly carrying firearms at polling places on Election Day because the edict is not based in law.
Several Michigan Sheriffs are refusing to enforce the illegal order, saying there is no law to enforce. From whml.com:
Murphy stated Livingston County Prosecutor Bill Vailliencourt has concurred the ban is unenforceable. He noted that people can’t point or wave guns or anything else, which would constitute intimidation or even felonious assault. Murphy said someone simply having a gun strapped to their hip or a long gun strapped on their chest or back is open carry and as long as it stays there, there’s nothing that can be done. As for the intimidation factor, Murphy says they can take enforcement if someone is being intimidated at the polls. But he clarified that someone just open carrying is not intimidation and not illegal. Murphy said if someone is open carrying a pistol or a long gun and they were to approach someone and make comments about who someone should vote for – that would put it into the category of intimidation.
State Officials say they will use State Police to enforce the order. From bridgemi.com:
Michigan Sheriffs Association executive director Matt Saxton called the order “a solution in search of a problem” and Ottawa County Clerk Justin Roebuck said the “legally ambiguous guidance … could incite others to challenge it on Election Day.”
If local law enforcement doesn’t enforce the rule, the Michigan State Police will, Benson said.
Over the weekend, Nessel told Showtime’s “The Circus” that the state police would patrol polling locations where they believe sheriffs won’t enforce voter intimidation laws to ensure compliance.
Joycelyn Benson is a lifelong radical Democrat. She was aided in her run for Secretary of State by the SOS project funded by George Soros. The SOS project is dedicated to elect radical leftists so they can influence the administration of election law.
©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
A 40-year-old male was pumping gas at the BP Gas Station located at 1204 Franklin Street when he heard a popping sound and immediately felt stings on his body from an unknown projectile. The male subject then saw someone out of the passenger side window of a passing vehicle with what appeared to be a gun. The male subject, thinking that he was being shot at by the passenger in this vehicle, drew his concealed firearm and fired several shots at the vehicle.
An Anne Arundel County jury on Monday acquitted a Pasadena man of murder, manslaughter and felony firearms charges, agreeing that he acted in self-defense when he fatally shot an acquaintance who drove to his home despite warnings and then charged him.
The homeowner got a call from her neighbor, alerting her that someone was breaking into her garage in the 7100 block of South Mozart Street, according to Chicago police spokeswoman Sally Bown.
The woman told investigators she went outside with a gun and found the man exiting a side door of the garage, holding some of her belongings, Bown said. She shot him in the chest.
On 23 September, 2020, Judge Roger T. Benitez issued another impressive order in a case involving the Second Amendment.
A number of California residents, firearm businesses, special interest groups, foundations, and a political action committee have organized to sue California AG Xavier Becerra et al, to challenge the Constitutionality of California's complex net of regulations for the ownership and use of various firearms the state deems to be "assault weapons". The lawsuit has been winding its way through the federal legal system in the Ninth Circuit.
In Miller v. Becerra, the defendants moved to summarily dismiss the lawsuit on the basis of lack of standing, and for a failure to claim relief.
The judge in this case is Roger T. Benitez, of the United States District Court, Southern District of California. Judge Benitez has become well known for his superb, well reasoned and exquisitely written opinions in Second Amendment cases.
Judge Benitez has created another splendid example of his command of logic and rhetoric in the order denying summary judgement to AG Becerra and the other plaintiffs.
The order was issued on 23 September, 2020.
Judge Benitez demolishes the argument that plantiffs have no standing, because they have not suffered an injury. The chilling of the exercise of a Constitutional right *is* an injury in federal jurisprudence. Judge Benitez gives example after example in case law. From the order:
It has long been the case that a plaintiff possesses Article III standing to bring a pre-enforcement challenge to a state statute which regulates the exercise of a federal constitutional right and threatens a criminal penalty. “When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979) (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). “In Virginia v. American Booksellers Assn. Inc., 484 U.S. 383 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to ‘knowingly display for commercial purpose’ material that is ‘harmful to juveniles’ as defined by the statute.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 160 (2014). Of course, “[s]uch challenges can proceed only when the plaintiff ‘faces a realistic danger of sustaining a direct injury as a result of the law’s operation or enforcement.’” Skyline Wesleyan Church v. California Dep’t of Managed Health Care, 968 F.3d 738 (9th Cir. 2020) (citations omitted). But the simple continued existence of the criminal penalty provision together with an absence of a defendant’s disavowal of prosecution satisfies the requirement of a credible threat of prosecution. Susan B. Anthony List, 573 U.S. at 164 (threat of future enforcement of the false statement statute is substantial with history of past enforcement).
Then Judge Benitez shows several recent examples where federal courts within the Ninth Circuit have granted standing on orders to thwart the Trump administration:
The bar for standing is not particularly high. For example, organizations that have been “perceptibly impaired” by a government rule “in their ability to perform the services they were formed to provide” is sufficient for organizational standing. E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1266–67 (9th Cir. 2020) (“The Organizations are not required to demonstrate some threshold magnitude of their injuries; one less client that they may have had but-for the Rule’s issuance is enough. In other words, plaintiffs who suffer concrete, redressable harms that amount to pennies are still entitled to relief.”). An organization has standing to sue on behalf of its members when “the interests it seeks to protect are germane to the organization’s purpose.” Sierra Club v. Trump, 963 F.3d 874, 883 (9th Cir. 2020) (also noting individual’s standing to challenge border wall construction based on: “concern[] that the wall ‘would disrupt the desert views and inhibit him from fully appreciating the area,’ and that the additional presence of U.S. Customs and Border Protection agents ‘would further diminish his enjoyment of these areas’ and ‘deter him from further exploring certain areas’ [while] worrie[d] that ‘construction and maintenance of the border wall will limit or entirely cut off his access to fishing spots’ along the border, where he has fished for more than 50 years.”).
There are several others. The reader can access the order on line to read in depth. Judge Benitez is using the Ninth Circuit's over the top precedent to allow any lawsuit against the current administration by applying the basic judicial principle of reciprocity. What is good for one plaintiff is to be applied to all plaintiffs.
The stakes are high. The plaintiffs are challenging California's byzantine network of complicated laws which make owning many common firearms a legal minefield in the state.
A divided Supreme Court has punted on enforcing Second Amendment rights for a decade. With the passing of Justice Ruth Bader Ginsburg, and the likely confirmation of Amy Coney Barret to the Supreme Court, the time seems ripe for the Court to take on Second Amendment cases, and clarify obvious infringements such as effective bans on the carry of firearms outside the home; bans on magazines, bans on semi-automatic rifles, and lifelong bans on the exercise of Second Amendment rights for people who are not a danger to the community.
If President Trump wins re-election, he is likely to flip the Ninth Circuit with a majority of originalist and textualist judges.
Judge Benitez was born in Cuba, in 1950. He understands oppression.
Perhaps Judge Benitez will be elevated to the Court of Appeals. He is an obvious choice.
©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
Police say the 14-year-old and two others approached the 26-year-old man on the front porch of his home. The 14-year-old allegedly pointed a gun at the man, who retrieved his own gun and shot the teenager in the legs.
“He sounded like an older man,” she said. Once in the closet, where her pistol was located, the woman says the man tried to open the closet door and was speaking aggressively to her.
That’s when she says she fired two shots through the closet door, scaring the man off.
One of the very few Second Amendment cases heard by the supreme Court in the last decade was Caetano v. Massachusettes, decided March 21, 2016.
The Court has held that “the Second Amendment ex-tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).
The Supreme Court of the United States, in a unanimous decision, reversed the Massachusetts Supreme Court, and held that all bearable arms were protected by the Second Amendment, with rare exceptions.
Bearable arms which are in common use for lawful purposes may not be banned, under the Second Amendment. Some enterprising Second Amendment supporters sued the Attorney General of California, because the state of California bans blackjacks, billy clubs and batons for nearly everyone in all circumstances.
Given the Supreme Court decisions of Heller, McDonald, and Caetano, it is hard to see how California AG Becerra can expect to prevail in Fouts v. Becerra (3:19-cv-01662), filed on 1 September, 2019. From sandiegouniontribune.com:
Fouts was licensed in Oregon to carry a baton in his role as a private security contractor. Additionally, a 1980 Oregon Supreme Court decision found possession of a billy club in the home is constitutional, describing the weapon as “the first personal weapon fashioned by humans.”
His co-plaintiff is Tan Miguel Tolentino, an honorably discharged airman who carried a baton as a law enforcement specialist in the U.S. Air Force. Tolentino now works as an information technology specialist.
Second Amendment attorney Alan Beck, who filed the lawsuit with Mississippi-based co-counsel Stephen Stamboulieh, said the time was ripe for such a challenge.
The case has been wending its way through the court system. A hearing on the motion for summary judgement for Fouts and Tolentino was scheduled for September 11, 2020.
Plaintiffs bring this motion because there is no genuine dispute of material fact that the Second Amendment to the United States Constitution protects the right of all law-abiding citizens to possess and acquire billies/batons which are typically possessed for lawful purposes and that California cannot establish the required reasonable fit between its complete ban on billies/batons and its interest in public safety. The State’s ban on billies/batons cannot survive constitutional scrutiny and thus, Plaintiffs are entitled to judgment as a matter of law.
This motion is based on this notice, as well as the memorandum of points and authorities, the declaration of Stephen D. Stamboulieh and attached exhibits, and the declarations of Russell Fouts and Tan Miguel Tolentino, filed herewith. This motion is also based on thepapers and pleadings already on file in this motion and such matters as may be presented to the Court at the hearing.1DATED: September 11, 2020
The hearing on the motion for summary judgement has been re-scheduled for 7 December, 2020. Numerous precedents in other states are cited. A particularly appropriate example comes from the Oregon Supreme Court:
44. In State v. Kessler, 289 Ore. 359, 614 P.2d 94, 1980 Ore. LEXIS 1031 the Oregon Supreme Court found: The club is considered the first personal weapon fashioned by humans. O. Hogg, Clubs to Cannon 19 (1968). The club is still used today as a personal weapon, commonly carried by the police. ORS 166.510 prohibits posession of a "billy;" however, ORS 166.520 states that peace officers are not prohibited from carrying or possessing a weapon commonly known as a "blackjack" or "billy." The statute in this case, ORS 166.510, prohibits the mere possession of a club. The defendant concedes that the legislature could prohibi carrying a club in a public place in a concealed manner, but the defendant maintains that the legislature cannot prohibit all persons from possessing a club in the home. The defendant argued that a person may prefer to keep in his home a billy club rather than a firearm to defend against intruders.
Our historical analysis of Article I, section 27, indicates that the drafters intended "arms" to include the hand-carried weapons commonly used by individuals for personal defense. The club is an effective, hand-carried weapon which cannot logically be excluded from this term. We hold that the defendant's possession of a billy club in his home is protected by Article I, section 27, of the Oregon Constitution.
As noted in the Complaint for Declaratory Injunction and Relief by the plaintiffs, Fouts and Tolentino, numerous other state governments have eliminated other, similar laws already, rather than go to court on the merits. It is hard to see what AG Becerra has to gain. He may hope for protection in the notoriously anti-Second Amendment Ninth Circuit. But with 10 judges appointed by President Trump, the Ninth is nowhere as far left as it used to be. In addition, the likelyhood of an Amy Coney Barett justice of the Supreme Court is high.
Perhaps he is banking on a Supreme Court packed with far left justices by a Biden administration. It could happen.
Judge Roger T. Benitez has shown he takes the Second Amendment seriously, as a fundamental right, due as much deference as any other fundamental right in the Bill of Rights. The case is so one sided, Judge Benitez may simply grant summary judgement. We will not know until well after the election, as the hearing for summary judgement is scheduled for December 7th.
It seems appropriate it will be on Pearl Harbor day.
©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
Walker said she was sleeping when she heard someone knocking on the door early in the morning. It was her ex-boyfriend, Wickam, who was demanding his cell phone after he was told it was at Walker’s home. Her current boyfriend answered the door, but that’s when a fight broke out just near the doorway.
“They were fighting and the dogs attacked,” Walker said.
(snip)
Police responded to a gun-shot that was heard in the area. We’re told it was Walker's neighbor attempting to break up the attack by firing his weapon. Police then found the Wickham and an ambulance took him to the hospital where he later died.
Officers determined a physical altercation occurred between 41-year-old Randy Haney, of West Liberty and Deloris Haney, of West Liberty.
During the altercation, a juvenile got a gun and shot Randy Haney, who was pronounced dead by Morgan County Coroner Raymond Vancleave at Appalachian Regional Healthcare in West Liberty
Tuesday 22 September, 2020.
Bear shot with .22 rifle to "scare it" killed in Connecticut.
The two cubs climbed up a tree and the black bear stood facing and making noises at the dog, the police said.
O’Connor got a .22 caliber rifle and shot at the bear to scare it.
“The shot struck the bear, which moved about 30 yards to a neighboring property’s driveway, collapsed, and eventually died,” Will Healey, a spokesperson for the Department of Energy and Environmental Protection, told the newspaper.
Image from La Crosse County website, cropped and scaled by Dean Weingarten
La Crosse County, Wisconsin may have engineered a new event, the cheap
ammunition event. Ammunition has often been accepted at gun turn-in
events, though it is not paid for. Some excellent deals have been found
for ammunition at these events.
The event will be held at 3202 Berlin Drive, La Crosse. It appears to be the local landfill, from 8 a.m. to noon on Saturday, the 24th of October, 2020.
The La Crosse event is specifically organized to collect unwanted ammunition. The county states it often receives requests to dispose of unwanted ammunition. Someone in La Crosse County organized this event to collect unwanted ammunition. They promised all ammunition collected would be incinerated!
Private parties can do better. They can promise the ammunition will be disposed of properly, which gives much greater and more frugal options. From lacrossecounty.org:
Residential ammunition disposal is a service frequently requested by our customers. We are happy to announce that the La Crosse County Hazardous Materials Facility will be hosting its first ammunition drop-off event on Saturday, October 24th from 8 a.m. to noon. This is a great opportunity for La Crosse County residents to dispose of unwanted or unneeded ammunition in a safe and responsible manner. All collected ammunition will be shipped to a licensed hazardous waste facility where it will be incinerated.
WXOW gives a bit more information. People who dispose of ammunition at the disposal site (near a landfill) must remain in their vehicles. Any ammunition greater than five pounds (Two boxes of 12 gauge or 650 rounds of .22 LR) will be required to pay a disposal fee of $5 per pound. ($12.50 per box of 12 gauge or $5.75 per 150 rounds of .22 LR.) The county will not accept reloads. It is not clear if they will accept smokeless powder or primers. They would probably take empty cases From wxow.com:
The drive-through event is open to La Crosse County residents only. Anyone who comes to the event must remain in their vehicles.
Disposing of the first five pounds of ammunition is free and $5 per pound after that.
They are accepting only factory rounds of .50 caliber and 8-gauge or less. No black powder, military munitions, fireworks, or explosives are accepted. No other waste materials are accepted during the event.
This presents an interesting scenario. After the first five pounds, the county will charge people more than the ammunition costs at retail to dispose of it by destroying it.
Might some widow, knowing nothing of ammunition, but wanting to get rid of it, turn in some boxes of 7mm magnums? .45-70? .455 Webley? Perhaps they will wish to rid themselves of cases of 5.56, or 7.62x39, which was purchased cheaply 20 years ago?
Enterprising Second Amendment types could make signs and advertise to properly dispose of the ammunition for free, or to pay for unwanted ammunition. They might even agree to dispose of black powder and reloading supplies. At gun turn-in events, folding tables have been handy.
I have heard of widows turning in many thousands of dollars of ammunition to police to dispose of it.
There appear to be only two entrances to the land fill. Perhaps it is a one way road. It would not be difficult to find a place where people could park and a deal could be made. If there are two entrances, Second Amendment enthusiasts who wish to perform a public service could arrange to cover both entrances.
Those disposing of ammunition could be asked if they had any firearms they wished to dispose of as well.
Wisconsin does not have any laws forbidding the purchase of ammunition or reloading supplies, or firearms, which I know of, by private parties. Felons are forbidden to purchase firearms, generally. This is not legal advise; readers should make their own inquiries.
If any readers attend the event on Saturday, the 24th of October, please take numerous pictures. You can contact the author at AmmoLand.
Pictures and a personal account of the action would be an excellent candidate for an AmmoLand article, but nothing can be promised or guaranteed.
©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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