A 2008 mug shot of Raymond Robinson, who “has not been a model citizen,” but also has no record of violent felonies or mentally unstable behavior. (Photo: St. Louis Dispatch)
Guns dot com
Following a “strict scrutiny” analysis by a Missouri circuit court judge, a St. Louis felon arrested with a handgun saw his charges dismissed last week under a new amendment to the state constitution.
The ruling was issued Friday by St. Louis Circuit Judge Robert Dierker in the case of Raymond Robinson, 55, who was arrested on July 28, 2014 following an anonymous tip to police that he was in illegal possession of a firearm.
According to court documents, when Robinson was stopped by police he advised officers that he had a pistol in his car and consented to a search. Formerly found guilty in 2003 for carrying a concealed weapon without a permit, he stated that he carries a firearm for protection due to the cash nature of his employment as a handyman. The court noted that while the “defendant has not been a model citizen,” he has no record of violent felonies or mentally unstable behavior.
The ruling relies heavily on recent U.S. Supreme Court cases, notably Heller and McDonald, but also invokes Missouri’s own new Amendment 5.
The latter was the result of a Senate resolution that had passed the state legislature by a large margin early last year then was certified by 66 percent of votes cast in an August 2014 election. The amendment made the right to keep and bear arms “an unalienable right” and required state lawmakers and courts to uphold it.
As such, Amendment 5 requires courts to apply a most severe form of analysis known as “strict scrutiny” when weighing any case before it, requiring a “compelling governmental interest” to proceed.
Dierker, applying this to the current state laws post-Amendment 5, cited that since the state does not differentiate between different classes of felonies and does not define how non-violent felons can be stripped of their constitutional rights, dismissed the gun charges against Robinson.
"The court noted that while the “defendant has not been a model citizen,” he has no record of violent felonies or mentally unstable behavior.".........
ReplyDelete“If the right to keep and bear arms is ‘fundamental’ and ‘unalienable,’ and restrictions are subject to strict scrutiny, it follows that the burden must always be on the State to establish that the defendant’s conduct is outside the protection of the constitution, not the other way around,” wrote Dierker."
ReplyDeleteSo now the State has to provide some evidence to justify the removal of an offender's Second Amendment rights. A pretty novel concept, and a pretty good one in my opinion. There are already paths in many states for felons to regain their civil rights with some limitations based on the type of felony convicted of.
So at some point, the State will have to decide to for instance decide to object to felons convicted of actually being violent as opposed to something deemed to be a felony but where no violence was commited.
You have said in the past that there should be a process to differentiate between those who are violent and those who are not, haven't you Mike? I'll try to look into that when I can. Anyone else recall what I'm talking about?
I recall it. I think he said that he would be ok with non-violent felons, who he didn't want to see jailed, keeping gun rights, but wanted violent misdemeanors (e.g. simple assault) to result in prohibited person status.
DeleteI don't recall him conceding to keeping gun rights. Sometimes he asks for no jail time, but then it's still "one strike, you're out". And of course, should we suggest the law not allow for jail time (to hold true to his wishes), then we are accused of being "crybabies".
Delete(Did I remember correctly, Mike?)
DeleteI'm not very good at using Mike's blog search engine, but I did find this.
Delete"ALL felonies" seems a bit excessive. I would exclude non-violent white collar crimes but include drug dealing convictions."
http://mikeb302000.blogspot.com/2013/10/missouri-supreme-court-reverses-in-gun.html
The case ended up seeming so similar that I had to go back to make sure the names of the person involved wasn't the same. So we seem to have what Mike has said is acceptable, which are the "clean" felonies. Here is a pretty common definition,
"White-collar crime refers to financially motivated nonviolent crime committed by business and government professionals."
So it seems that the felony is more acceptable if management is doing it as opposed to the warehouse guy sneaking something into his car. I'm still liking the court's expectation that the prosecution be required to justify their belief that the felon demanding the return of his rights, should not be allowed to get them. It's much like the burden of proof to convict a person of a crime. Also the assumption of innocence and the assumption of the return of rights seem similar.
When it comes to getting to keep your rights, I'm more of an all or nothing guy. You either get them all back, or none of them. I'm also not a big fan of the half adult policies we have elsewhere, such as you can vote, but not drink, etc.
Of course, this whole issue could likely be resolved by passage of legislation defining which felonies are considered violent.
SJ, you rmembered it exactly right.
DeleteTS, what's wrong with your memory, man?
ss, you're getting a little picky. I should have said "non-violent AND white collar felonies."
SSG,
DeleteI agree on the all or nothing thing and the "half adult" policies (good term for it). Legislation is definitely needed. A while back you posted a good description of the legal theory behind felons losing their rights.
We now have lots of feloniesthat don't rise to the same level of the felonies back then (e.g. bringing home an eagle feather from the forest vs. armed robbery). A good area for legal reform, if the congresscritters weren't so busy trying to meddle in other people's business, would be to work on defining types of felonies as you suggested, making some of the felonies misdemeanors with heavy fines (reduce prison crowding and still have a deterrent), or inventing a new intermediate category where imprisonment is more than a year, but infamy doesn't attach. The GCA could then be amended to reflect these changes.
I wasn't trying to be picky Mike, just trying to my at times porous memory. I suspected it was something along those lines.
DeleteMike, you should know better than to get into a memory contest with me. Not that I’m that great, but you have the memory of a goldfish:
DeleteMikeB: “…first of all I do not want people incarcerated for non-violent offenses. I never have and even under the strictest gun control regimen I still wouldn't. Suspended sentences and probation along with the loss of gun rights would be more then sufficient for the most serious infractions.”
http://mikeb302000.blogspot.com/2013/05/starbucks-shooting-in-florida.html
Of course, I can’t take your line about not wanting incarceration as being more than lip service since I have never seen you endorse removing or changing criminal code to not include jail time for non-violent gun control law violations. In fact, when I suggest it, you call me a “crybaby”. Care to challenge my memory on that?
This is interesting, but it raises a conflict of laws fact pattern I would never want to get caught in the middle of. This amendment is effective in nullifying any prohibited person status stemming from state law, so this guy is safe from prosecution under the state statute or in state court. Nothing in the Supremacy Clause would prevent this.
ReplyDeleteAs for his ability to purchase, that will depend on whether Missouri uses its own background check system or the FBI's. In the former case, maybe he'll be able to buy. In the latter, he'll still be denied. However, FFL's selling to him in the former case might run afoul of ATF (I haven't delved into that area of the law).
Finally, where the Supremacy Clause will come into effect is that he is still a prohibited person under Federal Law, so he could still be prosecuted in Federal court for violating the federal statute--state amendment notwithstanding. In fact, I wonder if he'll be getting a knock by the Feds soon to flex their muscle.
This is great news. It's my topic for tomorrow's JPFO Alert.
ReplyDeleteAh, the irony of stripping someone of their right to bear arms for committing the crime of bearing arms.
ReplyDeleteNow gun loons want felons to have guns just because THEY disagree with a law. Where have their voices been as non violent offenders have been convicted as felons, spent years in jail, and had their rights revoked? They only care, if it's about guns. What hypocrites.
ReplyDeleteAs promised:
ReplyDeleteActually, I would go further, and argue that even if Robinson's victimless "felony" were a violent crime, he still could not legitimately be denied his fundamental human right of the individual to keep and bear arms, no matter whether or not any document acknowledges that right. As David Codrea has long contended, "Anyone who can't be trusted with a gun can't be trusted without a custodian."
At the time of Robinson's arrest, he had been a free man--or should have been. Denied government recognition of his right to arm himself against threats to his life and liberty, though, he was robbed of an essential element of that freedom. If the prosecution wins its appeal, and overturns Judge Dierker's ruling, he will lose even the illusion of forcibly disarmed "freedom." That's unconscionable.