The Definitive Guide to Virginia’s Air Gun Laws

Posted on June 29, 2012 by John Pierce

I use a WordPress plugin that allows me to monitor the number of visitors who have read each article and what website they came from.  Additionally, if they found the article by using a search engine, it shows me the search terms they used.

I use this information to gauge what topics my readers might be interested in and on that note, hardly a day goes by that the list of search terms doesn’t include multiple entries for such topics as Virginia BB gun laws, Virginia air gun laws, Virginia Airsoft laws, or Virginia paintball laws.

Apparently there is a lot of interest in this area of law from parents, children, and adult air rifle enthusiasts.  So I thought that it would be a good idea to put together a definitive guide to the laws governing air guns in the Commonwealth of Virginia.

Let’s Start With a Definition …  What Are “Air Guns?”

That is a good question.  What kinds of firearms are encompassed by the term “air guns?”  In fact, the name is a bit misleading since the term covers not only those firearms that are powered by compressed air or CO2 but also those that are spring driven.  This includes what are commonly referred to as BB guns, air rifles, paintball guns, and Airsoft guns.

The term also includes both handguns and rifles and encompasses firearms that shoot traditional BBs, lead pellets, Airsoft pellets, and paintballs.

Purchase and Possession Under Federal Law

Now that we know what we are talking about, let’s turn to the legal requirements to purchase air guns.

Generally, when we are talking about the purchase of firearms, we would have both federal and state law to contend with.  So … the first issue we will investigate is whether air guns are “firearms” under the meaning of federal law.

The definition of “firearms” for purposes of both the Gun Control Act of 1968 and the Brady Bill is codified at 18 USC § 921(a)(3) which reads in part:

(a) As used in this chapter—
…
(3) The term “firearm” means

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;

Since air guns are powered by either compressed gas or spring action, they do not fall under this definition.  But wait ….  any air gun which fires a projectile greater than .50 caliber (or one-half inch) could potentially fall under the “destructive device” language in 18 USC § 921(a)(4):

(4) The term “destructive device” means—
…
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter;

Fortunately for air gun owners, the BATFE has not pursued this option in the case of air guns … yet.  To make these determinations, the BATFE uses the discretionary language from the same statute which reads:

The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.

Paintball gun owners should take particular note of this potential future problem since paintball guns are the only member of the air gun family which traditionally shoot a projectile that is over .50 caliber.  The standard paintball is .68 caliber whereas the copper BBs and lead pellets we all are familiar with from our childhood are only .177 caliber and the increasingly popular Airsoft BBs are generally 6 mm which equates to approximately .236 caliber.

But as of the moment, it appears that air guns are not federally regulated at all in regards to purchase and simple possession.  In fact, the BATFE agrees with my assessment.  Under federal law, even convicted felons may possess air guns.

But wait … perhaps there are state law provisions we need to be aware of …

Purchase and Possession Under State Law

Turning to state law, what does the Code of Virginia have to say about whether air guns are considered “firearms” for purposes of statutory application?  Unfortunately, there is not a definitional statute to which we may turn for general application.  However, several statutes do provide definitions applicable only to their own code section.

For example, in § 18.2-282, they have both a definition of firearm and make a clear distinction between a “firearm” and an “air or gas operated weapon.”

A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.
…
C. For purposes of this section, the word “firearm” means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material.

In a similar fashion, § 22.1-277.07 also includes “pneumatic guns” as a distinct class of object separate from “firearms” and this pattern seems to repeat throughout the Code of Virginia.  In both § 18.2-287.01 which deals with firearms in air-carrier airport terminal buildings and § 18.2-283.1 which deals with firearms in courthouses, the Legislature makes a distinction between “guns” and any “other weapon designed or intended to propel a missile or projectile of any kind.”

These are all clues to the Legislature’s intent and seem to imply that the general definition of a firearm under Virginia law is understood to closely mimic the federal definition in requiring some form of combustion.  It appears that where the Legislature intended for air guns to be included in a statute, they are either expressly included or the definition of “firearm” in the code section excludes a combustion requirement.

But what I think doesn’t really matter.  It is the court’s interpretation of the statutes that will govern.  So … do the Virginia courts agree with this assessment?  Why yes they do. In a series of cases that began in 1993, the question of whether or not a BB gun is a firearm for purposes of simple possession statutes has been definitively answered.

In 1993, the court said in Jones v. Commonwealth (429 S.E.2d 615) that:

Code § 18.2-308.2 prohibits a felon from possessing a device that has the actual capacity to do serious harm because of its ability to expel a projectile by the power of an explosion, and it is not concerned with the use or display of a device that may [merely] have the appearance of a firearm.

This holding was followed in 1998 in Gregory v. Commonwealth (504 S.E.2d 886) and again in 2000 in Williams v. Commonwealth (537 S.E.2d 21).

The currently controlling case is from 2001.  In Armstrong v. Commonwealth (549 S.E.2d 641) the court made it very clear:

[T]here is no public policy or legislative intent to find a felon who possesses a BB gun, a squirt gun or a plastic toy gun to be in possession of a firearm. That is all the Jones decision held. When the General Assembly used the term “firearm” in Code § 18.2-308.2, it meant a “firearm” is a firearm under that statute if it was made to shoot bullets, not BBs or tap water.

I should note at this point that the courts have made one broad exception to this interpretive rule and that is in a case where an air gun is used to facilitate a crime of violence where victim perception is a factor.  In any case where a “firearm” is being used in such a crime, the Virginia courts have adopted a broader definition that does include air guns.  This rationale was explained in Witeiner v. Commonwealth (656 S.E.2d 418, 51):

[A]s a practical matter, a crime victim ‘cannot be required to distinguish between a loaded pistol and a spring gun when it is brandished during the commission of a felony.’

The statutes to which this broader interpretation extend include § 18.2-53.1 (Use or display of firearm in committing felony) and § 18.2-51 (Shooting, stabbing, etc., with intent to maim, kill, etc.).

But so far as mere purchase, possession, or lawful-use is concerned, the Virginia courts agree with my assessment that the term “firearm” does not include air guns and only those provisions which expressly apply to air guns will affect the legality of their use.

So let’s turn to Virginia’s other purchase and possession provisions to see if any of them expressly apply to air guns.

§ 18.2-308.2:2 is the primary statute governing when background checks are required for the purchase and transfer of firearms.  And under this code section, we see a definition of “firearm” that that closely matches the definition from the Jones case:

“Firearm” means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.

The fact that this section does not reach air guns is the reason that you may buy air guns in retail stores without a background check.  But could there be other prohibitions on purchase that we need to look at even though there are no background checks?  Let’s keep looking.

§ 18.2-308.1:1 governs purchase, possession, and transportation of firearms by anyone who has been acquitted of a crime by reason of insanity.  However, its prohibition only applies to “any firearm.”  Air guns are not covered under this statute.

§ 18.2-308.1:2 governs purchase, possession, and transportation of firearms by anyone who has been adjudicated legally incompetent or mentally incapacitated.  And once again, the prohibition applies only to “any firearm.”

§ 18.2-308.1:3 governs purchase, possession, and transportation of firearms by anyone who has been involuntarily admitted or ordered to outpatient mental-health treatment.  The pattern continues here with the prohibition only applying to “a firearm.”

§ 18.2-308.1:4 governs purchase and transportation of firearms by anyone subject to a protective order, and only during the period that the order is in effect.  And while it is intellectually interesting to note that mere possession is not disturbed by a protective order, for our purposes here it matters little since it too only applies its prohibition to “any firearm” and does not include air guns.

§ 18.2-308.1:5 governs purchase and transportation of handguns by anyone convicted of certain drug offenses within the preceding 36 month period.  Like the code section governing protective orders, this prohibition does not reach to mere possession, and in fact only applies to an even more limited class of weapons (handguns).

What about legal and illegal aliens?  With the recent Dream Order by President Obama, there has been an interesting discussion about whether the new residents thusly created have Second Amendment rights.  But until such time as the 4th Circuit Court of Appeals or the United States Supreme Court rules on such a question, Virginia code section § 18.2-308.2:01 will answer the question as far as Virginia is concerned.  And while I need not go into detail, the prohibitions here apply only to “assault firearms” and “any firearm” in turn.  Air guns are not prohibited to non-U.S. citizens.

In short, it appears that there are no statutory bars to the lawful purchase or possession of air guns in Virginia.  And it is good that Virginia has not attempted such controls because it turns out that states are preempted by federal law from banning the sale of air guns, at least to adults.    15 USC § 5001(g)(ii) states that:

(g) Preemption of State or local laws or ordinances; exceptions

…  no State shall—

(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B–B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.

This brings up a good point.  Localities may, under both federal and state law, impose restrictions on the sale of air guns to minors but may not impose such restrictions on adults.

Safe and secure in our ability to purchase and possess air guns, we will now move on to the issue of transportation.

Transportation

Let us start this section by reiterating that Virginia is an open carry state.  What does this mean?  It means that any person who is not otherwise prohibited by law from possessing a firearm may openly bear such firearm as she goes about her business.  This applies equally to handguns and long-guns.

Where bearing arms enters the realm of potential criminal liability is when the firearm is concealed.  The prohibition against carrying a concealed weapon is codified at § 18.2-308 which generally prohibits carrying any of the following concealed:

(i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material; (ii) any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, metal knucks, or blackjack; (iii) any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain; (iv) any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart; or (v) any weapon of like kind as those enumerated in this subsection

The clarifying text “by action of an explosion of any combustible material” was added in 2001 by House Bill H2130.  According to Delegate McClure, the bill sponsor, this change was made specifically to clarify “that in order to be a weapon the propulsion of the missle [sic] must be by action of an explosion of combustible material.”

And this seems to have largely resolved the issue in favor of the interpretation that one cannot be prosecuted for carrying an air gun concealed when one is otherwise engaging in lawful activity.

So now that we know we can transport our air guns if we are not engaging in any criminal activity, are there any specific places where air guns may not be taken?  The answer of course is “Yes.”

We will first start with K-12 schools.  § 18.2-308.1  governs possession of firearms on school property, in school buses, and on property used exclusively for school-sponsored functions.  This code section incorporates the definition of weapons from § 18.2-308 and also repeats the limiting phrase “designed or intended to expel a projectile by action of an explosion of a combustible material.”

On its face, the prohibition against weapons on school property does not appear to apply to air guns.  And this interpretation is borne out by the fact that in 2010, the Virginia Citizens Defense League defeated an attempt by Senator Marsden to add air guns to the list of prohibited weapons.  His change in Senate Bill SB 580 would have added a prohibition for “weapon[s] designed to expel a projectile at a speed of more than 250 feet per second by action of compressed air or gas, including but not limited to an airsoft gun.”

But that does not mean that students are free to bring air guns onto school property, even after hours.  While the act may not give rise to criminal liability, § 22.1-277.07 provides for a one-year expulsion for students who are proven to have:

… possessed a firearm on school property or at a school-sponsored activity as prohibited by § 18.2-308.1; to have possessed a firearm or destructive device as defined in subsection E, a firearm muffler or firearm silencer, or a pneumatic gun as defined in subsection E of § 15.2-915.4 on school property or at a school-sponsored activity.

And just because a student may ultimately prevail in a criminal matter does not mean that an ill-informed prosecutor may not press charges, forcing the student’s parents to spend money on legal defense.  A great example is a recent case in Culpepper.

And there are other places where the prohibition is clear.  The first place in the Code of Virginia where air guns appear to be legitimately prohibited is in air carrier airport terminal buildings when not checking the guns with customs or the airlines.  This prohibition comes from § 18.2-287.01 and states in part that:

It shall be unlawful for any person to possess or transport into any air carrier airport terminal in the Commonwealth any (i) gun or other weapon designed or intended to propel a missile or projectile of any kind …

Air guns are also prohibited in courthouse.  This prohibition is codified in § 18.2-283.1 and features the exact same “designed or intended to propel a missile or projectile of any kind” language as the prohibition on air carrier airport terminal buildings.

So we can’t carry at schools (under threat of expulsion and a whole lot of headaches), air carrier airport terminal buildings, and courthouses.  Other than that, transportation and carry of air guns seems to be relatively non-controversial.

However, there is one final point to make concerning transportation of air guns.  Since air guns are not “firearms” under Virginia law, Virginia’s firearms preemption statute, codified at § 15.2-915 does not apply and localities may have their own ordinances on where you may or may not transport air guns that are stricter than state law.  Note to self … this is a good area for a bill in the upcoming legislative session.

Moving on … Is there anything else we should look out for as we carry our air guns across the Commonwealth?  Why yes there is.  And that leads us to our next topic.  When and where may you legally use or discharge your air gun.

Discharge

Let’s start with an important point of Virginia law.  Anyone with an air gun in their hand in a public setting runs the risk of being charged with brandishing. Governed by § 18.2-282, the crime of brandishing occurs when you:

… point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.  

While this is an “objective” standard, the possibility of a brandishing charge always exists when an air gun is being used in public.  The obvious example of this is when groups of children play with Airsoft or paintball guns in public parks.

The way to avoid potential liability under this statute is to always treat air guns with the same respect for safety you would give to real firearms.  That means you should never point them at anything that is not a target and certainly should never point them at other people (with the obvious exception of paintball guns and properly equipped opponents in appropriate settings).  You should keep them encased, slung, or holstered until ready to use and such use should only be in appropriate places.

So what places are appropriate?  Well let’s start with one of the changes to Virginia law that occurred in 2011.  Concerned that more and more localities were passing blanket bans on the discharge of air guns on private property, Senator Roscoe Reynolds introduced Senate Bill SB 757.

This change to § 15.2-915.4 allows someone on private property to be able to discharge an air gun as long as they have permission from the property owner to do so and reasonable care is taken to ensure that the projectile does not cross the bounds of the property. Any local ordinances to the contrary, which many localities have adopted, are preempted.

Other statutes, designed to govern the public discharge of actual firearms are also inapplicable.  These include § 18.2-280 (Willfully discharging firearms in public places) and § 18.2-286 (Shooting in or across road or in street).

Finally, I should note that § 15.2-915.4 does not prevent localities from passing ordinances governing discharge in public venues such as parks.  In fact, most localities have done so and you should take care when discharging any air gun outside of private property to insure that you are not violating some local ordinance.

Summary

So what have we learned?

1)  Federal law does not consider air guns to be “firearms” for purposes of federal law and even felons may purchase and possess air guns.

2)  The BATFE does not consider paintball guns to be “destructive devices” despite the fact that they propel a projectile greater than .50 caliber.

3)  Federal law preempts the ability of states to ban the sale of air guns to adults.

4)  Virginia law generally does not impose restrictions on the purchase and possession of air guns when not engaging in other unlawful activity.

5)  When you are not engaging in other unlawful activity, you are generally not subject to a charge of carrying a concealed weapon based upon an air gun.

6)  There are places that are off limits including K-12 schools, courthouses, and air carrier airport terminal buildings.

7)  Since air guns are not “firearms” under Virginia law, Virginia’s firearms preemption statute does not apply and localities may have their own ordinances on where you may or may not transport air guns.

8)  While Virginia prevents localities from regulating discharge of air guns on private property under most circumstances, localities may, and often do, ban air guns in parks and other public venues.

9)  Get to know your local ordinances.  Because federal and state law are generally silent on the issues surrounding air guns and preemption does not apply except in sale and discharge on private property, local ordinances will largely govern the field.

Going Forward

I will attempt to keep this guide up-to-date as there are federal or state changes that affect the rights of air gun owners in Virginia.

If you are aware of any issues I have failed to address or think that I may be incorrect on a point of law, then feel free to leave a comment along with a cite to authority and I will incorporate the change or addition into the guide.

DISCLAIMER:  Nothing contained herein should be construed as legal advice nor does it give rise to an attorney-client relationship.  For legal advice, you should contact a member of your state’s Bar association.

Posted in Air Guns, Airsoft, BB Guns, Brandishing Statutes, Felons, Local Ordinances, Myths & Misconceptions, Paintball, Popular Culture, Public Parks, State Laws, Virginia | 95 Comments

New Virginia Gun Laws Taking Effect July 1st, 2012

Posted on June 25, 2012 by John Pierce

Once again, the Virginia Citizens Defense League has delivered for Virginia gun owners.  Thanks to the tireless efforts of VCDL activists, the 2012 Legislative Session was even more of a rousing success than the 2011 Session.  Not only was every single anti-gun bill opposed by VCDL defeated but the session ended with almost a dozen VCDL supported bills passed by the Legislature and signed by Governor McDonnell.

These important changes will take effect on July 1st …

Better Protection For Gun Owners During Declared Emergencies

I have written before about the dangers of emergency declarations stripping citizens of their right to keep and bear arms.  Virginia code § 44-146.15 governs the constitutional limitations placed upon such declarations in Virginia and HB 20, sponsored by Delegate Wilt, improved this code section to provide that:

Nothing in this chapter is to be construed to:
…
(3) Empower the Governor, any political subdivision, or any other governmental authority to in any way limit or prohibit the rights of the people to keep and bear arms as guaranteed by Article I, Section 13 of the Constitution of Virginia or the Second Amendment of the Constitution of the United States, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms except to the extent necessary to ensure public safety in any place or facility designated or used by the Governor, any political subdivision of the Commonwealth, or any other governmental entity as an emergency shelter or for the purpose of sheltering persons;

The senate version of this bill, sponsored by Senator Obenshain, was SB 245.

Note that this change still allows gun owners to be disarmed in emergency shelters.  That will need to be addressed in future legislative sessions.

We Don’t Need No Stinking Gun Buybacks

HB 22, sponsored by Delegate Cole, prevents localities from participating in so-called “gun buybacks” unless they have first passed an express ordinance authorizing the participation.  And in the event that they do hold such an event, the firearms thus collected must be offered for sale to the public or a licensed dealer.

Forgot Your Permit Today?  No Problem

HB 26, sponsored by Delegate Cole, provides that failure to have your permit and a photo-id on your person while exercising the privilege of carrying a concealed firearm only results in a $25 civil penalty and the fact that you had a concealed handgun permit at the time of an infraction but simply forgot to have it with you is an affirmative defense to a charge of carrying a concealed handgun.

Localities Can’t Control Guns in Employee’s Automobiles

HB 375, sponsored by Delegate Pogge, provides that localities may not adopt or enforce any workplace rules that abrogates the employee’s right to have a lawfully-possessed firearm in a locked personal vehicle.

Note that this bill specifically exempts state agencies.  One of the most important issues we need to address in future sessions is extending complete preemption to state agencies.

No More Fingerprinting

Although most jurisdictions have long since eliminated fingerprinting for concealed handgun permit applicants, state law still allowed jurisdictions the option when issuing first-time permits.  HB 754, sponsored by Delegate Cline, removes this option.

The Senate version of this bill is SB 67 which was sponsored by Senator Stanley.

Some Much-Needed Housekeeping

SB 563, sponsored by Senator Ruff, makes some much-needed clarifications to the application process.  Many jurisdictions had added extra-legal requirements and were requesting information beyond that which is requested on the application form developed by the VA State Police.  Senator Ruff’s bill makes it clear that …

No information or documentation other than that which is allowed on the application in accordance with this subsection may be requested or required by the clerk or the court.

The bill also made it clear that, once approved, the permit could be issued via postal mail as opposed to requiring the applicant to appear and pick it up in person.  This too had become an issue in several jurisdictions.

Oh … You Want ID to Vote?

SB 663, sponsored by Senator Smith, makes it clear that a concealed handgun permit is a valid form of ID when voting.

Say Goodbye And Good Riddance to “One-Gun-a-Month”

I saved the best for last.  The most publicized victory of the year was, without a doubt, the elimination of Virginia’s “One-Gun-a-Month” law.  Passed under Governor Wilder, “One-Gun-a-Month” was heralded by anti-gunners as a model piece of gun-control legislation.  It has long been an embarrassment to Virginia gun rights advocates that one of the most pro-gun states in the union had such a disastrous piece of legislation.

VCDL has been working for years to eliminate “One-Gun-a-Month” and has been successful in adding exceptions for permit holders and trade-ins in previous sessions.  But these exceptions are no longer needed after July 1 thanks to House bill HB  940 sponsored by Delegate Lingamfelter and Senate bill SB 323 sponsored by Senator Carico.

What’s Next?

Now we begin looking to the 2013 Legislative Session.  How can you get involved?

1)  Join VCDL.

2) Send a “Thank You!” email or letter to each and every one of the patrons of the bills listed above as well as Governor McDonnell.

3)  Plan on coming to the VCDL 2013 Lobby Day at the Virginia General Assembly.

PS.  Don’t forget that none of these changes take effect until July 1, 2012!

Posted in State Laws, Virginia | 7 Comments

Why the Avengers movie had to be set in New York City

Posted on June 22, 2012 by John Pierce

“Freedom is life’s great lie. Once you accept that, in your heart… You will know peace.” – Loki (channeling Mayor Bloomberg)

I don’t think that I am revealing any great secret when I say that I am a huge fan of comic books in general and Marvel in particular.  Having said that, it should come as no surprise that I have watched the Avengers movie many times since the first midnight showing which I attended with my oldest son.

One of the things I enjoy most about good sci-fi and fantasy movies is the fact that they allow you to suspend reality for a few hours and just enjoy the story.  But on my last viewing, a little bit of reality managed to slip in and I found myself chuckling as I watched Hawkeye kill an alien by stabbing it with a loose arrow.

Rather surprisingly, it turns out that the alien infantry, while numerous and well armed, were completely unarmored as were their vehicles.  A single well-placed 9mm round from Black Widow’s sidearm or even Hawkeye’s hand-driven arrow were all sufficient to incapacitate the alien soldiers or bring down a speeder.

And that’s when it suddenly struck me.  In New York, such an invasion would be terrifying because the disarmed populace wouldn’t even have so much as a 32 ounce soda to throw at the aliens.  But in Virginia or the rest of free-America, aggressive, unarmored aliens on flying scooters pouring through a hole in the sky would be viewed as a free game of galactic skeet with flying scooters as prizes.

I am rather embarrassed to admit that as this thought crossed my mind, I committed an extremely impolite act and literally laughed out loud in the theatre.

Now I know what you are going to say next.  You are going to point out that the large armored creatures which accompanied the aliens were not so unprotected.  In fact, I suspect that you will point out Iron Man’s inability to cut through the armor plating on one creature’s side that forced him to resort to an attack on the unarmored mouth and points beyond.

I have only one thing to say in response … Thank God for Ronnie Barrett and the M82A1!

Travelling at over 2,600 feet per second and packing almost 10,000 ft-lbs of force at a rangle of 100 yards, the 50 BMG cartridge would give one of the big alien creatures a seriously bad day.

I can see it now, all across America as the large aliens fell, you would hear gun owners turning to their respective spouses and saying “See!  I told you it would come in handy some day.”

But enough of that.  If you haven’t watched The Avengers yet, then go see the movie.  If you have seen it, go see it again.  It is an astonishing film with great special effects and truly believable characters for which Joss Whedon deserves a great deal of credit.

But as you are watching Black Widow use her two-gun mojo, just remember that there are real women who you would much rather have stand by your side when the aliens come calling.

Until next time true believers …

Posted in Media Views on The Second Amendment, Popular Culture, State Laws | Leave a comment

Gun owners guide to the 4th Amendment: Stop and Frisk

Posted on June 19, 2012 by John Pierce

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … – 4th Amendment

Since we started our discussion of the 4th Amendment with seizures, which are governed by Terry v Ohio and its progeny, it only makes sense to next move on to the topic of ‘Stop and Frisk’ which is also governed by the Terry line of cases.

But if they are based on the same material, why didn’t we just cover this material in the column on seizures?  Understanding the answer to this question is critical if one wishes to truly grasp the intricacies of Terry.  The short answer is that seizures (the “stop”) and searches (the “frisk”) are distinct activities from a 4th Amendment perspective and each requires independent justification.  A given situation may provide the officer reasonable suspicion to stop you but may not give the officer reasonable suspicion to support a frisk.

To understand this, let’s start with a brief review.  In yesterday’s column, we discussed the three types of ‘stops’ that a person may be subject to.  They are consensual encounters, Terry Stops, and detentions that amount to arrest.  Let’s look at what the requirements are to ‘frisk’ someone under each of the three types of ‘stops’.

Consensual Encounters

A consensual stop is one in which law enforcement approaches a citizen and initiates a conversation but the citizen is free to leave at any time, ending the ‘stop’, and is also free to refuse requests to be patted down or searched, preventing the ‘frisk’.

Since a consensual stop is not a seizure of the person for 4th Amendment purposes, a consensual encounter is not a “Stop and Frisk” and none of the cases prescribing boundaries to “Stop and Frisk” apply to these encounters.

Remember that!  If you give the officer permission to do a pat-down, then anything they find is admissible against you in court.  More important for the law abiding gun owner, you cannot support a claim that the officer violated your rights if you yourself consented to the ‘frisk’.

The only possible exception to this rule is the case where an officer’s conduct or expression of authority rises to the level of coercion.  Let’s look at what the case law tells us about coercion.

One of the first cases we turn to when discussing the boundaries between consent and coercion is Schneckloth v. Bustamonte.  There are four important rules from Schneckloth that continue to govern ‘consent’ searches today:

  1. Once given freely, consent obviates the need for probable cause or even reasonable suspicion.
  2. In and of itself, the validity of consent cannot be challenged based upon whether or not you knew you had the right to deny consent.
  3. You may place conditions upon your consent and even withdraw it once given.
  4. Consent may be challenged as invalid if it is “coerced, by explicit or implicit means, [or] by implied threat or covert force.”

Another important case where consent is concerned is Bumper v. North Carolina.  The rule to take away from Bumper is that, when consent is given based upon an officer claiming to have the authority to conduct the frisk in any case, consent is merely acquiescing to what the suspect thinks is lawful authority.

Since we want citizens to acquiesce to lawful authority, it would be against public policy to require them to resist every claim of lawful authority just to retain the right to challenge the validity of their consent.  Therefore, if you agree to allow a frisk based upon an officer’s claim of authority, you can still challenge the validity of the frisk.

Detentions That Amount to Arrest

We will be discussing ‘searches’ in a future article.  But here, we are discussing ‘stop’ and ‘frisk’ so I will only note that, in the case of a detention that amounts to an arrest, the right to search the body of the suspect is automatic.

Terry Stops

Now we arrive at the heart of the matter.  While suspects may consent to frisks in consensual encounters and arrestees may be searched incident to lawful arrest, Terry Stops are, in fact, the only encounter where the concept of “Stop and Frisk” is actually applicable.

A Terry Stop, named for the aforementioned case of Terry v. Ohio, is a ‘seizure’ of the person under the 4th Amendment and any accompanying ‘frisk’ is a search also protected by the 4th Amendment.  According to the holding in Terry, Terry Stops are justified when “swift action based upon on-the-spot observations of the officer on the beat is required.”

No warrant is required for a Terry Stop, nor is there a requirement for probable cause such as would be a prerequisite for obtaining a warrant.  Rather, a Terry Stop requires only “reasonable suspicion that criminal activity may be afoot.”  If the officer wishes to search or “frisk” the person he is seizing, they must also have reasonable suspicion that they “may be armed and presently dangerous” but this is not required to simply seize the person.

So, as I mentioned earlier, a given situation may give the officer reasonable suspicion to stop you but there may not be sufficient reasonable suspicion that the person is “armed and presently dangerous” and therefore a frisk is not justified by the “Stop and Frisk” exception under Terry.

An example of this might be a woman on the beach, wearing a tiny bikini and eating a candy bar, who matches the description of a person who moments ago shoplifted a candy bar from a boardwalk store.  While her match to the description coupled with her possession of a candy bar might give the officer reasonable suspicion that “criminal activity may be afoot” thereby supporting a “stop”, it would be hard to justify a claim that the officer had “reasonable and articulable suspicion” that she was “armed and presently dangerous” to justify a frisk.  However, as discussed in the previous section, should she be actually placed under arrest, then the rules change.

So … since the determining factor in a Terry Stop seems to always be “reasonable suspicion,” let’s have a look at what that means in real life.  According to the court in  Alabama v. White, reasonable suspicion is  “considerably less than proof of wrongdoing by a preponderance of the evidence.”  But what does that mean? Unfortunately, it means that law enforcement has extremely broad discretion in initiating Terry Stops. In order to understand just how ridiculously low the bar is in many district courts, you need only look at the Stop and Frisk program instituted by Mayor Bloomberg in New York.

 While this abhorrent practice has been recently modified, by their own admission, in 2011, NYPD officers conducted warrantless stop-and-frisk interrogations of over 685,724 New Yorkers, mostly minorities, 88% of which were freed without even a ticket being issued.  To put that in perspective, the NYPD did stop-and-frisk interrogations on more New Yorkers than the entire population of Boston!

So you tell me … What does reasonable suspicion mean?  I am pretty sure that in New York, it means just being a minority and walking down the street.

Open Carry as Reasonable Suspicion?

Returning to the issue from the perspective of a law-abiding gun owner, the question I am often asked is whether or not the simple act of openly carrying a properly holstered handgun gives rise to the reasonable suspicion necessary to initiate a Terry Stop.  The answer to that question varies somewhat from state to state.

In those 29 states where open carry is legal without a permit or license, the answer is an unequivocal “No!”  Since open carry is legal it cannot, absent other suspicious activity, give rise to the necessary “reasonable suspicion that crime is afoot.”

In those 14 states (soon to be 15) where open carry requires a permit or license, the answer is not as crystal clear but is still a resounding “No!”  The United States Supreme Court addressed a similar question in Delaware v. Prouse (440 U.S. 648) (1979).  In that case, the issue articulated by the court was:

[W]hether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.

Now … let’s change just a few words and we have the issue before us:

[W]hether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop a person open carrying in public, for the purpose of checking the carry permit of the open carrier, where there is neither probable cause to believe nor reasonable suspicion that the firearm is being carried contrary to the laws of the state or that either the firearm or the carrier is subject to seizure or detention in connection with the violation of any other applicable law.

So how did the court answer the question in Prouse?  They held that it is unreasonable under the Fourth Amendment to seize someone to check the status of a license except where there is at least reasonable suspicion that the person is unlicensed or otherwise subject to seizure for the violation of some other law.

This is especially important today because Oklahoma will be joining the ranks of licensed open carry states on November 1, 2012 and some Oklahoma law enforcement officials have stated that they plan to seize open carriers and demand to see their permits.  Midwest City Assistant Chief Sid Porter was reported to have said that:

If we see someone carrying a weapon in a holster, they have to have a permit on them and would be asked to show it. Anybody with a weapon on their side is considered a suspicious person.

Even law enforcement in states such as Massachusetts, which is definitely not considered a stronghold of pro-gun sentiment, has long since recognized that they cannot seize a person based solely upon the fact that the person is properly carrying a firearm.

In the December 2005 issue of The Police Chief magazine, John M. Collins, General Counsel to the Massachusetts Chiefs of Police Association published an article entitled “Chief’s Counsel: Responding to Gun Possession Reports.”  In this article, he advised officers that:

Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest, it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop.

I couldn’t have said it better myself.  I hope that Oklahoma law enforcement spends the next few months before open carry becomes available training their officers on how to properly interact with the citizens thus empowered.  If not, the courts are open every day, and 42 U.S.C. § 1988 provides attorney’s fees for those that prevail in suits brought pursuant to 42 U.S.C. § 1983.

We last turn to those 7 (soon to be 6) states in which open carry is generally not legal.  In those states, the sight of a person openly carrying a firearm outside of a hunting venue would probably give rise to the necessary “reasonable suspicion that crime is afoot.” Thankfully, that number is dropping every year and hopefully will soon be reduced to zero.

On a related note, gun rights advocate Kenn Blanchard recently asked an uncomfortable tangential question on his blog that all my readers should take the time to read.  He asked “Is Open Carry Dangerous For A Black Man?“

Unfortunately, given the fact that the courts have largely looked the other way while New York trampled the rights of the minority community, there is more than a little truth to Kenn’s concerns.  We need to keep working for a society where all men and women may exercise their rights freely without fear of persecution by overzealous law enforcement.

Current Events

As a real world illustration of just about every 4th Amendment violation we have discussed,  just this month, officers in Aurora Colorado rounded up motorists en masse, handcuffed them, and held them at gunpoint while searching for a bank robber based upon what they called a “reliable tip.”

But they had no information on which to base even the weakest suspicion of individual drivers.  According to the officers themselves, ““We didn’t have a description, didn’t know race or gender or anything.”  So how did they have reasonable suspicion to detain and search these people?

“Most of the adults were handcuffed, then were told what was going on and were asked for permission to search the car.”  Oh yeah … that shotgun in your face is not coercive in the slightest.

The really ironic part of the story is that they found their bank robbery suspect.  But based upon their tactics, I am guessing that any evidence found during the search will be excluded and the suspect will go free.

Summary

Just to recap … Stop and frisk is only available when the officers have “reasonable suspicion” that “crime is afoot” and that the suspect is “presently armed and presently dangerous.”  Absent any one of these elements, a stop and frisk is not valid under the 4th Amendment.

However, officers do not need “reasonable suspicion” if you willingly throw away your rights.  Officers may engage in consensual encounters with citizens and if you consent, may stop and frisk you without any 4th Amendment protections attaching.

What should you do if asked for consent?  Know your rights, ask “Am I free to leave?”, if they say “Yes” then do so, and if detained do not speak to law enforcement without your attorney present.

If you feel that your rights are being violated, you should state your objections clearly so that there is no possibility that it could be asserted you were consenting to the encounter. Then you should comply with the officers (note that I didn’t say consent or talk) while documenting the encounter to present to your attorney.

We will discuss various voice and video recording technologies that are particularly suitable for encounters with law enforcement in a future article.  Until then, stay safe and consent to nothing!

Stay tuned for the next exciting chapter in the Gun Owners’ guide to the 4th Amendment series …

DISCLAIMER:  Nothing contained herein should be construed as legal advice nor does it give rise to an attorney-client relationship.  For legal advice, you should contact a member of your state’s Bar association.

Posted in Fourth Amendment, Open Carry | 22 Comments

Countdown to The Bar Exam: Deeper Into The Technology

Posted on June 7, 2012 by John Pierce

Countdown to The Bar Exam is a series that I will be writing about my experiences preparing for the July, 2012 Virginia Bar Exam.  I hope that it will be both educational and entertaining for my fellow test-takers as well as future graduates.

As I mentioned in my previous Countdown to The Bar Exam article, I am doing my bar study using the Themis Bar Review program.  I think that it is safe to say that, in general, I have been very happy with Themis.

But that doesn’t mean that I haven’t found areas where they could improve.  As the days go by, I have been increasingly taking advantage of the fact that I can access the lectures on my smartphone and tablet devices.  However, as my use has increased, I have discovered a number of inconveniences that I hope Themis will address for future students.

Losing Your Place in Lectures

The lectures are organized into “bite-sized” vignettes sandwiched between practice questions.  I really like this format since it allows you to absorb the material in manageable portions and reinforces the material frequently.  These vignettes are generally between 10 and 40 minutes long, which doesn’t seem long until you lose your place and need to scroll through the lecture attempting to find where you left off.

But how would this happen?  It turns out it is fairly easy.  You could have an incoming call (regardless if you answer it or not), you could get a text you need to read or respond to, or you could inadvertently click the power button on top of the phone to shut off the screen.

Now in most apps that play video or music this wouldn’t be a big deal.  If you are in the middle of a YouTube video and there is an incoming call, you can take the call secure in the knowledge that, once you return to YouTube, you will find your video paused at the exact point you left it.  The same is true of Audible, iTunes, NetFlix and practically any other media player on the iPhone.

But it is not true in the Themis app.  Once you return to Themis, it assumes that you have completed the lecture and places you in the next set of practice questions.  In order to finish watching the lecture (which you may have only just started), you must back up and manually attempt to move forward through the video until you reach the appropriate spot.  As I mentioned in my last post, this is especially unsafe when driving, which is a venue where the smartphone lectures are extremely useful and, I suspect, most commonly used.

If Themis is interested in my opinion as someone whose entire life before law school was spent in the software development world, I would suggest a two-pronged approach to addressing this issue.  First, I would fix the existing app such that it retains your position in the lecture whenever the app is minimized, paused, or sent to the background.  This would address the majority of my concerns.

Second, I would take the additional step of making an audio-only version of the lectures available on the app which also allows you to skip the practice questions and take them later when it is safe to do so.  To date, I have seen no use of blackboards, charts, or other visual aids in the lectures such that audio-only versions would be impractical.  The video component of the lecture only serves to drain battery life and force you to keep the screen active, thereby increasing the possibility of inadvertently hitting a button and losing your place yet again.

By having audio-only versions specifically aimed at the commuter-studier, they could eliminate the potential traffic safety issues, improve battery life, and allow the screen to be turned off while the audio is still running.  It would be a win-win-win.

Next Chapter Button Should Say “I’m Feeling Lucky”

As I mentioned earlier, the structure of the lectures on the app platform is to present a short lecture in a “chapter” format and then to present a small number of practice questions which are then graded.  You then move on to the next chapter in the section and repeat.  To facilitate this, they have a Next Chapter button available at the end of the practice question review.

The problem?  When you have more than one topic area downloaded, the Next Chapter button seems to randomly pick another topic and start you on that rather than moving on to the next chapter in the section you are currently working on.  I am sure that there is a pattern to the issue but I have as of yet been unable to pin it down.

It is easy enough to work around the issue.  Instead of using the Next Chapter button, you simply back up to the list of downloaded topics and scroll until you are back to the topic area you are working on.  You can then select the first incomplete chapter and play it.  The only problem with this solution is that, once again, you are presumably having to do this while driving a vehicle.

The Grading of Practice Questions Leaves Room For Improvement

After you have answered the practice questions at the end of each chapter, you are given a score and a list of all the questions with an indicator of whether or not you answered each question correctly.  Questions you answered correctly are shown in green and questions you answered incorrectly are shown in red.

If you click on one of the questions from this review screen, you are shown three pieces of data, the original question, the correct answer, and your answer.  I have two distinct problems with this presentation.

First, this is often insufficient to help you realize what you did wrong.  Many times the correct answer (or your incorrect answer for that matter) is “Both A and C” or “All of the above.”  Since you cannot see what all of the original answer options were, you cannot properly incorporate the information.

Second, on the detail screen, regardless of whether you answered the question correctly or incorrectly, your answer is always shown in red.  This contrasts with the color scheme from the review screen and confused me for some time as to whether or not the app was properly scoring my answers.

I think that this whole post-review area should be redesigned to allow you to see the entire question for review as well as making it more clear which questions were missed and which were answered correctly when viewing them in detail.

Summary

I am not sure at what point this series became a bit of a review and critique of Themis.  I suspect that other exam takers are experiencing the same thing.  As your worldview narrows down and focuses more and more on the Bar Exam, the specifics of the program we are using take on ever greater significance.

Given that, I hope someone is reading this at Themis … at least for next year’s class.

Posted in Bar Exam | 1 Comment

Ninth Circuit issues holding in Nordyke v. King

Posted on June 1, 2012 by John Pierce

The Ninth Circuit Court of Appeals, sitting en banc, has finally issued a holding in the case of Nordyke v. King.

This case involved an ordinance passed by Alameda County in California.  The ordinance generally prohibited the possession of firearms on county property, including fairgrounds where gun shows were traditionally held.

The Nordykes, gun show promoters,  challenged this ordinance as a violation of their Second Amendment rights.

As the court noted in its opinion, the substantive constitutional framework for evaluating Second Amendment cases has changed significantly in the twelve years since this case was first filed.

Since then, the holding in  District of Columbia v. Heller established that the right enumerated in the Second Amendment is an individual right and the holding in McDonald v. Chicago has incorporated that right against the states via the Due Process Clause of the Fourteenth Amendment.

But as the court also noted, the standard of review for Second Amendment cases is still evolving.  Ultimately however, the court avoiding contributing to this area of evolving jurisprudence by holding that the Nordyke’s claim did not survive any possible standard of review.  They based this upon the rather remarkable concession by Alameda County at oral arguments on March 19th of this year that “a gun show is an ‘event’ within the meaning of exception (f)(4)” of the challenged ordinance and therefore, gun shows may be conducted there.  The county went on to concede that “buyers may physically inspect properly secured firearms.”

In accepting this concession, the court enjoined the county from “add[ing] new requirements or enforc[ing] the ordinance unequally” and noted that if “the County at any time fail[s] to apply the ordinance as it represented it at oral argument, Plaintiffs may of course bring [a new] suit.”  One would expect that the court would view any such antics on the part of the county with significant displeasure.

This holding seemingly puts municipalities on notice that they cannot impose content-based bans on otherwise legal firearms events in government-owned venues that are rented to the public.  However, the ruling did let stand the rather cumbersome requirements proposed by the county during oral arguments.

The county proposed that “when a ‘firearm is not in the actual possession of the authorized participant,’ the firearm must be ‘secured to prevent unauthorized use’ [and that] ‘a sturdy cable attaching the firearm to a fixture, such as a table, would'” satisfy this requirement.

As Judge Ikuta and Judge Callahan noted in their lukewarm concurrence, the court’s use of a “rule of thumb” test rather than addressing the county’s conceded requirements under some specifically articulated standard of review was a bit of a “rough-justice” approach.  It not only allowed them to reach a holding without addressing the tougher issue of standard of review but potentially allowed the county to impose requirements that are stricter than should be allowed.

The majority reaches this conclusion notwithstanding the lack of any basis in the record to ascertain how the requirement that firearms be tethered to a table, actually burdens gun shows, or the nature of the fit between this burden and the government’s alleged purpose to “promote the public health and safety by contributing to the reduction of gunshot fatalities and injuries in the County.”

Ultimately, this is a victory for gun rights.  However, I note with some sadness that the county effectively denied the right to hold gun shows on their property for 12 years, cost the plaintiffs tens of thousands of dollars in legal fees, and “discovered” at the end that they had an exception all along.

The entire ruling may be read below.

GDE Error: Unable to load requested profile.

 

Posted in Abuse of Power, California, Nordyke v. King, Second Amendment Case Law | 3 Comments

Countdown to The Bar Exam: Week One Recap

Posted on May 31, 2012 by John Pierce

Countdown to The Bar Exam is a series that I will be writing about my experiences preparing for the July, 2012 Virginia Bar Exam.  I hope that it will be both educational and entertaining for my fellow test-takers as well as future graduates.

I started the Countdown to The Bar Exam series last week just as I was taking the first halting steps in my Themis Virginia Bar Review program.  But ‘halting’ is a very good description of my progress those first few days, for a number of reasons.

The official schedule called for a May 21 start date but, like many of my classmates, I wasn’t quite ready to jump into bar review only four days after taking my last law school exam.  I needed a few more days of rest.

It turns out that was just as well since there were server issues the first day.  I received the following email from Themis early in the day on the 21st.

Dear Themis Students:

I apologize for the technical problem with the myThemis Portal this morning; it has now been resolved.

If you missed study time today, the Directed Study syllabus will automatically adjust to your individual progress to ensure that your assignments remain manageable on a daily basis.
For further flexibility, don’t forget to download the Themis mobile app to access lectures and assessment questions from anywhere. To access the Themis Mobile app, download it in iTunes or Google Play (formerly the Android Marketplace). Simply search “Themis” or “Themis Bar Review,” and then install the mobile app to the applicable device. To start watching your videos, log in using your myThemis username and password.

Your Themis Director will be checking in with you over the next few days to answer any specific questions, talk about your progress, and make sure that you are on schedule. If any of you are still experiencing website problems, please contact us so we can address the issue immediately.

Sincerely,

Rick Duffy, Esq.
CEO

I tried logging on later in the night but they were still experiencing problems and I received the following error.

CRITICAL INTERNAL ERROR ID Array ( [id_task] => 14918 [id_video] => 341 [id_user] => 54582 ) NOT FOUND

But that was fine by me since I was not planning on any serious studying in any case.  I later found that BarBri’s AMP online program also suffered capacity issues that day.  So it appears to be a zero score tie out of the gate.

I was able to log on the next day and I worked my way through the introductory handouts and lectures.  I also received an email with the .mobi and .epub versions of the outlines both of which I installed on my iPad.  The .epub files threw XML errors in iBooks but the .mobi files read perfectly in Kindle so to avoid wasting time I would suggest going straight to using Kindle to read the .mobi version of your outlines.

It is very easy to do this.  In your Kindle app, go to Settings.  You will see your “Send-to-Kindle E-mail Address.”  Just unzip the .mobi files sent to you from Themis and then email them in manageable batches to that address.  If there are any issues such as too many attachments in a single email, you will receive an email back from Amazon telling you how to correct it.  It is that simple.  The files will shortly appear on your Kindle device or app.

Back to the Themis program … I am using the Directed Study mode which leads you through the material in a set pattern and presents you with practice questions as you go.  You can do this on your laptop or you can download the lectures to your tablet or smartphone using the Themis apps.  Once downloaded, you can watch them and answer the practice questions even when you are in flight mode and completely disconnected from the internet.  When you reconnect to the internet, your status will update to the Themis server.

I used this extensively over the Memorial Day Weekend.  On Sunday I drove 12 hours to Illinois in order to pick up a horse for my daughter and then drove back 12 hours on Monday.  I spent almost the entire time both days listening to the Themis lectures on my iPhone.  An important note to make here is that you will need a willing assistant to accomplish this.  In my case, it was my wife who would read me the practice questions that pop-up every 20 minutes or so and then submit my answers.  Trying to do this yourself while driving would be very unsafe and could give rise to negligent tort liability on your part.

And speaking of negligence (the most commonly tested topic on the MBE), I really like the approach that Themis takes to MBE preparation.  They break down the topics that have historically appeared on the MBE and structure the presentation of material so as to maximize the scoring potential of your study time.  Therefore, even if you do not finish the entire program, you are still in an advantaged position when you take the Bar.

The first two lecture series in the Themis Directed Study Mode are Constitutional Law and Real Property.  Of the two, I liked the Constitutional Law presentation better.  The professor focused like a laser on the Bar Exam as opposed to rehashing general Constitutional Law principles.  He gave us several bright-line rules for addressing specific classes of problems that I immediately incorporated into my Bar Exam strategy guide.

The Real Property lecture on the other hand seemed like a review for a law school exam rather than the black-letter law distillation that I need for the Bar Exam.  In fairness however, it may be that the Constitutional Law material is just more susceptible to easily-articulable stratagems.

The two-day, 24-hour marathon session over the Memorial Day weekend allowed me to largely catch up to the official schedule and I gave myself Tuesday off to get some work done around the house.

Yesterday (May 30th), I had some trouble in the morning getting on the website but I was able to download material to the iPhone and I took the time to download the entire week’s worth of material.  Take note that these lectures and practice question modules are not small and I filled up a good portion of the free space on my iPhone when I downloaded that much.

But lest you think I am bashing Themis, it looks like BarBri also had problems yesterday.  They posted the following to their Facebook page.

A Message from BARBRI President Mike Sims:

All,

Yesterday and today, BARBRI AMP experienced a series of technical issues that unfortunately impacted your bar exam preparation. I sincerely regret this inconvenience and emphasize that we are acting with urgency. I share your frustration. You have every right to expect BARBRI to deliver as promised.

Late this afternoon, we discovered a database issue with the servers that run BARBRI AMP. To correct the problem as quickly as possible, it was necessary to reboot BARBRI AMP and the BARBRI website. This decision was not made lightly. We recognize the value and importance of your bar preparation time.

BARBRI AMP is just one part of BARBRI’s Active Legal Learning framework. To prepare for class, you can work BARBRI AMP questions or read the outlines. During class, you’ll learn the rules of law needed to succeed on the bar exam. After class, you will work practice questions from the MPQ volumes, StudySmart® software and your state’s essay testing books. BARBRI’s Active Legal Learning framework will help ensure your success on the bar exam.

In any case, I am off and running on the second week’s schedule.  A quick summary of what I learned during the first week follows.

    • Both Themis and BarBri have suffered a similar number of technology issues.  This is almost inevitable in any technology based solution and, as long as it does not become excessive, should not factor into the analysis of the relative worth of the programs.
    • I really like the way that Themis focuses on preparing you for the most commonly tested areas of the MBE.  Law school is where we get general knowledge but bar prep is where we want to get exam-taking strategy.
    • I highly recommend using the Kindle app to read your outlines.
    • I also highly recommend downloading your material to your smartphone or tablet. Doing so allows you to study in a greater variety of situations as well as minimizing your exposure to any server issues the bar prep company may be experiencing.

This week I will be working on Wills & Estates, Trusts, Taxation and Professional Responsibility.  I look forward to sharing my thought about the way that Themis presents these topics.

Until next time fellow exam takers … good luck and keep studying!

Posted in Bar Exam | 1 Comment

Countdown to The Bar Exam: Introduction

Posted on May 25, 2012 by John Pierce

Countdown to The Bar Exam is a series that I will be writing about my experiences preparing for the July, 2012 Virginia Bar Exam.  I hope that it will be both educational and entertaining for my fellow test-takers as well as future graduates.

So where did this idea come from?  To be more specific, why did I decide to write a series of articles about preparing for the bar exam?

As is often the case, it all started with money.  In Minnesota, where I attended law school, BarBri is far and away the bar-prep program of choice and I, like most of my classmates, had made a small deposit and signed up for BarBri my first year of law school.

Doing so locked in the then-current rate and gave you all sorts of first year exam prep material that I found extremely useful when the time came to take that first terrifying law school exam.  But when the time came to shell out the rest of the $3,000 plus tuition for the bar exam, I decided to take one more look around to make sure I was maximizing the efficient utilization of my dollars.

Translation … I was looking for cheaper alternatives.

And lo and behold, I found Themis Bar.  But lest you think it was a difficult search, I should point out that there aren’t that many viable options if you want both MBE (Multistate Bar Exam) and Virginia specific material.  BarBri has a complete prep for Virginia, so does Kaplan, and surprisingly enough, so does Themis.

I was already somewhat familiar with Themis.  Like other bar prep companies, Themis offers free goodies to law students in the hope that they will get the bar prep business when the students graduate.  Several of my classmates and I had taken them up on their free MPRE (Multistate Professional Responsibility Exam) prep book and found it very useful.

When I investigated what Themis offered in their complete Virginia bar prep package, it seemed more and more attractive for a variety of reasons:

  • The Themis program for Virginia is almost $2,000 cheaper than BarBri
  • They will give you a dollar-for-dollar credit for any deposit you have made to another bar prep program.
  • They only offer online bar prep but since I do not live where in-person BarBri classes are offered, I am limited to watching the classes online regardless of which program I select.
  • In addition to the standard browser based solution, they also have apps for the iPad, iPhone, and all android smartphones.

So I signed up for Themis.  And one of the first emails I received as a Themis customer was an announcement for a contest that Themis offers every year in conjunction with the popular legal blog Above The Law.  Three winners are given their Themis bar prep program for free and are invited to write a series at Above The Law entitled “Bar Exam Diaries” chronicling their bar prep experiences.  Of course I entered.  I did not win.

After feeling briefly disappointed that I would not be getting a refund check for my Themis tuition nor be allowed to write for Above The Law, I decided to go ahead and share my bar prep experiences here on Monachus Lex.  After all, I wrote the very first entries in this blog when I was going through the process of deciding to attend law school, preparing for the LSAT, and dealing with the admission cycle.  It seems only fitting that I should document my final challenge as a law student here as well.

In short, “Countdown to The Bar Exam” is the poor man’s “Bar Exam Diaries.”  It will attempt to share what I experience and learn about the process as I prepare for what I expect to be one of the toughest challenges I have ever faced.

I hope it will end up, in some small way, being a helpful resource for future generations of law school graduates.

Posted in Bar Exam | 1 Comment

Maryland files final brief in Woollard v. Sheridan

Posted on May 23, 2012 by John Pierce

Plaintiffs’ Attorney Alan Gura

Please indulge me for just a moment as I give a quick recap for those just joining us.

The case is Woollard v. Sheridan and the primary issue is whether or not Maryland’s discretionary may-issue handgun permitting scheme is constitutional.

Underlying that issue is the broader question of whether or not the Second Amendment right articulated in District of Columbia v. Heller extends to “bearing arms” outside the home and, if so, to what extent.

So where are we in answering these questions?  Well … we join this legal battle already in progress.

The first half of this legal football game saw U.S. District Court Judge Benson Everett Legg striking down Maryland’s discretionary may-issue handgun permitting scheme as unconstitutional.  In that ruling, he held that “the right to bear arms is not limited to the home” and declared Maryland’s requirement that applicants articulate a “good and substantial reason” unconstitutional both in general and as-applied to Mr. Woollard.

Attempting to metaphorically recover in the locker room during halftime, Maryland hit the ground running at the top of the second half by immediately declaring their intent to appeal.  Judge Legg responded by granting a temporary stay of his order pending a consideration of arguments for and against the issuance of a permanent stay until such time as the appeal is heard or denied.

The temporary stay order laid out a timeline in which three briefs needed to be filed before he makes his final decision.  The first deadline was April 19th for the state to file their initial brief.  The second was May 9th for the plaintiffs’ response brief .  The third, and final, deadline was May 23rd for the state’s final brief.

This article addresses the state’s final brief which was submitted to the court today.

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In the brief, Maryland puts forward the tired and discredited “public safety” argument. Their contention is that A) the General Assembly passed the law claiming “public safety” as their rationale and B) law enforcement likes it and claims it does protect “public safety.”

I suppose now would be a good time to mention the fact,  articulated in the plaintiffs’ response brief, that FBI Uniform Crime Statistics show Maryland with a firearms murder rate that is almost double the national average and which exceeds that of any of its geographical neighbors with liberalized gun laws such as Virginia, Pennsylvania, West Virginia, Delaware, North Carolina and South Carolina.  Amazingly, the state argues that the fact they have an acknowledged crime problem actually supports their position that allowing law abiding citizens the means to defend themselves would decrease public safety.

In order to support this twisted argument, they trot out the VPC “study” of permit holders committing crimes.  The problem?  That “study” has been thoroughly debunked. In fact, many of those the VPC claimed were permit holders were later found to be nothing of the kind.  While the court may take judicial notice of peer-reviewed studies in certain instances, one has to imagine that the fevered imaginings of the VPC staff does not rise to the level of scholarly excellence that Judge Legg would expect of a cited source.

They then move on to make the further outrageous claim that forcing the state to issue permits on a non-discretionary basis, as do the aforementioned neighbors, would result in “devastating consequences.”  Apparently, we are to believe that the law-abiding citizens of Maryland differ from those in the surrounding states to such an extent that the mere possibility of passing a background check and getting a permit would lead to riots, rampant lawlessness, and the breakdown of civil order.

But hyperbole aside, the plaintiffs’ counsel anticipated this line of argument as well.  And as they noted, any costs of obeying the constitution are irrelevant.

“The Court did not ask whether the injunction would inconvenience the state.  Any injunction forces the subject party to do something it would otherwise not do, but the real harm here is the continued deprivation of a fundamental right securing “intangible and unquantifiable interests” in self-defense.”

Maryland then attempts to distinguish the process they would have to go through from that employed in “shall-issue” states.  They claim that the plaintiffs do not understand the “realities of law enforcement” in Maryland.  Apparently, forcing them to maintain the appropriate records to be able to revoke permits in the event that the appeal is successful would be messy, difficult, and might intrude on the rights of those who actually have a “good and substantial reason” as that term is defined by the state.  Since it has historically been a proxy for “politically connected, white, donor,” it is easy to understand why the state would want to protect those they have rewarded.  But that’s the problem.  A discretionary system guarantees that cronyism, racism, bigotry and administrative inertia will all poison the process.

I must admit that I find myself struggling to not write in a sarcastic manner.  But in my defense, the brief is so over-the-top arrogant, while simultaneously managing to describe as inept the state’s ability to accomplish the simplest of administrative tasks, that one can  perhaps forgive my instinctive reaction to mock them.

As for where we go from here, Judge Legg has not given us an exact date by which we can expect his ruling.  However, given the strong pro-constitution language in his original ruling, I anticipate that he will take little time in responding to Maryland’s request for a permanent stay.

Here’s hoping that we soon can welcome Maryland as the newest, albeit reluctant, member of the fraternity of states where the Second Amendment means something.

Posted in Abuse of Discretion, Maryland, Permit Requirements | 4 Comments

Playboy talks protection and ‘baring’ arms

Posted on May 22, 2012 by John Pierce

“I am only buying it for the articles.” – Everyone

The June 2012 edition of Playboy, which hit the newsstands last Friday, features an article by Pat Jordan entitled “Armed & Dangerous:  Has Gun Culture Gone Too Far?”  In the article, in which I am quoted, Pat discusses the open carry movement and the concerns that some have expressed about gun owners “baring it all.”

Jordan, an admitted concealed carrier and believer in self-defense rights, clearly has a problem with open carry.  He stereotypes, generalizes, and often just plain gets it wrong.  Despite the fact that I am inordinately proud to have been quoted in Playboy, I feel duty bound to offer a point by point rebuttal to his article.

I should start by noting the premise of the article.  Jordan is writing about his experiences as he accompanies an open carrier going about their day.  The open carrier he chose is Jerry Henry of GeorgiaCarry.org.

The primary theme running throughout the article is that he thinks open carry is all about “fantasy” fulfillment.  Interwoven throughout the article he waxes poetically about macho imagery, invoking the names of Wyatt Earp, Doc Holiday, Butch Cassidy, the Sundance Kid, and Dirty Harry.  He also brings up the OK Corral and the Battle of the Bulge.  And he returns repeatedly to this theme throughout the article, growing ever more insulting each time.

But that’s not all.  He gets it wrong on multiple fronts.  Let’s look at some of the other problems with his views on open carry …

Open Carry is All About White Guys

Jordan seemed to revel in categorizing those who open carry as “the Caspar Milquetoast set” of “average white guys.”  It seems that he just hasn’t kept up with the times.  In reality, open carry is as diverse as America itself and the only requirement to participate is a love of individual civil rights.

Let’s have a look at just a few of the dominant figures in the open carry movement who don’t match his insulting stereotype.

Rick Ector

Yih-Chau Chang

Alany Helmantoler

Adnan Shahab

Yep … Jordan seems to be bringing his own prejudices and preconceived notions to the table.  And he appears to be enjoying himself as he peddles his distortions.  Let’s see where he goes next.

Open Carriers Live by Cliches

Throughout the article he presents a number of incorrect facts concerning firearms, ammunition, and carry in general, apparently gleaned from comments made by those he met during the day.  These include:

1)  The 1911 is the hands-down gun of choice for open carriers.

2)  Hollowpoint ammunition is “exotic” and “finicky.”

3)  45s are so powerful that they do not ever need to be loaded with hollowpoint ammunition.

I have to believe that he knew these were not correct factual statement and was taking a not-so discreet jab at the intelligence of open carriers when he finished one section by noting cruelly that “aphorisms” are “what passes for truth” amongst open carriers.

Reporting on Open Carry Apparently Diminishes Math Skills

And like so many other reporters down through the years, he managed to get the number of states which allow open carry wrong as well, despite the fact that I went over the numbers repeatedly during the interview.

As you can see, open carry is available in one form or another in 43 states, not the “30-odd” states reported by Jordan.  And this number will increase to 44 on November 1 of this year when the newly passed Oklahoma open carry bill becomes effective.

Out of fairness however, he may have used the term “30-odd states” to refer to the 29 states which allow some form of open carry with no government permission required whatsoever.  However, this ignores the 14 states, soon to be 15 with the upcoming addition of Oklahoma, where legislators have made the public policy decision that permit holders should be allowed to carry openly or concealed as they see fit.

Most States do Not Have “Open Carry Laws”

Perhaps the thing that bothers me the most about the media’s treatment of open carry is the constant reference to “open carry laws.”  As noted above, in 28 states, there is no “open carry law” per-se[1. California is an exception to this rule, only allowing rural open carry hence the fact that we are down to 28 instead of 29].  Rather, open carry is legal in these states because it has not been made illegal in much the same way that it is legal to wear a blue shirt because there is no law against it.  But you don’t hear reporters going around talking about “blue shirt laws.”

While it is understandable for laymen to be uninformed if they are not gun owners, I always expect better of reporters covering what is, essentially, a legal topic.  He does explain the difference somewhat when he turns to the genesis of the open carry movement but then goes right back to using “open carry laws” as a general term of art to refer to both the presence or lack-of open carry legislation.

I suppose I can only sigh and move on …

Open Carry “Scares” People

Jordan finishes off his article by listing places where open carry demonstrations have occurred.  He cites these as examples of times that the public has been “scared” by open carry.  He mentions that there have been cases of people open carrying near the president “under the watchful eyes of the Secret Service.”  I can assure you that, despite recent embarrassments, the Secret Service takes their job very seriously.  Anyone open carrying at a presidential event will be staged in a “free-speech area” far away from the President and carefully watched.

In truth, citizens and law enforcement alike both know that bad-guys do not invite the scrutiny from law enforcement that open carry can bring.  To use one of the aphorisms that Jordan insists are all we know in the open carry community, “it isn’t the gun you see that you have to worry about.”  As the FBI reported in a 2006 study entitled “Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers,” criminals go to great lengths to conceal their firearms, do not wear holsters, and do not open carry under any circumstances.

Conclusion

Jordan wraps up with a litany of insults for us at OpenCarry.org, calling us a “liability”, “a wild card”, and the NRA’s “redheaded stepchild.”  But I have always said that, so long as they report what you actually said … and you didn’t say anything stupid, there is no such thing as bad publicity.

And think about it from another perspective.  We have Playboy running an article in which open carry is presented as the extreme alternative to the “righteous” activity of carrying concealed.

Think about that … We may not have finished our mission of normalizing open carry in every state, but we sure seem to have moved the bar a long way toward making concealed carry the new normal.  And that’s not a bad place to start … when you’re winning the culture war.

Now go out and buy yourself a copy.  And when your significant other asks you why you bought Playboy, tell them “It’s for the articles.”

UPDATE:  OpenCarry.org Co-Founder Mike Stollenwerk writes about this article and takes some fun jabs at yours truly in his latest DC Gun Rights Examiner column.

Posted in Media Views on The Second Amendment, Myths & Misconceptions, Open Carry, Popular Culture | 24 Comments