News from Louisiana
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Louisiana Supreme Court tackles first of many anticipated gun law constitutionality cases
Court: Louisiana Supreme Court
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| The Louisiana Supreme Court dodged major gun rights questions in a December 10 decision which upheld—for one specific case, at least—a law barring felons from possessing firearms.[4]
In 2012, the state passed an unprecedented constitutional amendment declaring gun ownership a fundamental right. The provision opened all 80 of Louisiana's gun laws to constitutional challenges, and Tuesday's was the first such challenge to be heard by the high court.[4]
The case revolved around Glen Draughter, a convicted burglar caught with an AK-47 and a pistol in April 2012. Charged with being a felon in possession of a firearm, a crime punishable by a decade in prison, he defended his case by citing this new constitutional provision. Orleans Parish Criminal District Judge Darryl Derbigny tossed out the case and declared the entire statute unconstitutional. The state promptly appealed.[4]
Though the supreme court ruled in the state's favor, the decision hinged on a technicality: Draughter was still on probation when he was caught with weapons. Judge Marcus Clark used this to justify the ruling in the court opinion, saying that "[f]or these persons still under state supervision, we easily find there to be a compelling state interest for the state’s limited infringement of even fundamental constitutional rights, including the right to possess a firearm."[4]
Because the ruling was so case-specific, it does not set a broad-sweeping precedent for future gun law constitutionality cases. Commented Raymond Diamond, a Louisiana State University professor and Second Amendment scholar, "This is a very narrowly drawn opinion. It gives us very few hints of where they'll go with other firearms restrictions in the future."[4]
Eventually, the supreme court must decide which gun laws will remain constitutional and which must be rewritten or thrown out. The justices recently heard oral arguments on juvenile possession and will later hear arguments on a law banning possession of a firearm while in possession of controlled substances.[4]
As for this case, Diamond added, "This was about the easiest case they could decide. The next case won’t be so easy."[4] |
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News from South Dakota
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Supreme Court ruling may grant defendant decades of freedom
Court: South Dakota Supreme Court
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| The South Dakota Supreme Court has made a decision that could be the difference between a life sentence and a maximum four years in prison.[5]
Seventeen-year-old Braiden McCahren, of Pierre, South Dakota, was to be tried as an adult for the murder charge against him. Last December 18, McCahren, then 16, was at home with fellow 16-year-old Dalton Williams when he shot Williams. McCahren’s lawyers claim the shooting was an accident. Citing McCahren’s lack of remorse, the impact on the community and families, and the seriousness of the charge, Judge John L. Brown of the Sixth Judicial Circuit ruled in September he should be tried as an adult.[5]
Last week, the state’s highest court overturned Brown’s ruling, ordering him to review the case without considering testimony from a psychologist who had examined the defendant. The supreme court decided, in concurrence with the defense, that the psychologist had exceeded her boundaries in questioning McCahren earlier this year, violating his rights to due process and against self-incrimination.[5]
If found guilty, a juvenile trial could grant McCahren a life’s worth of freedom.[5]
Brown is allowed to require new evidence, including a new psychological examination, in reviewing the case. Prosecutor Michael Moore said he needs to further review the supreme court’s decision before proceeding.[5] |
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News from New Mexico
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Liquor sales approved across from elementary school
Court: New Mexico Court of Appeals
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| The New Mexico Court of Appeals has ruled against the Santa Fe City Council's effort to prevent a convenience store from selling alcohol due to it's proximity to Sweeney Elementary School. The appeals court ruling was written by Judge Michael Bustamante.[6]
The court upheld a ruling issued by the New Mexico Alcohol and Gaming Division that allowed the Giant store to sell liquor despite its location near the school. In 2012, the city appealed the decision to the First Judicial District Court. There, Judge Raymond Z. Ortiz sided with the city and reversed the ruling of the New Mexico Alcohol and Gaming Division. Giant's parent company, Western Refining Southwest Inc., represented by the state Attorney General’s Office, then appealed to the Court of Appeals, which ruled that Judge Ortiz was wrong to overturn the decision made by the director or the division.[6]
The technical issue at hand is concerning the distance between the store and the school. A New Mexico law prohibits liquor sales within 300 feet of a school or church. The city council argued that the distance must be measured from property line to property line. If that were the case, the two would only be about 155 feet apart, in which case the sale of alcohol would need to be permitted by a waiver from the city. Western Refining say that the distance is 377 feet, measuring from the door of the convenience store to the property lines of Sweeney Elementary.[7]
Judge Bustamante's ruling cited a 1992 New Mexico Supreme Court ruling to support the court's decision. The 1992 ruling declared that the proper way to measure the distances between properties in cases like this was from the property of the educational lot to the building which sells liquor. Therefore, Western Refining's measurement from Giant's door, as opposed to the edge of the parking lot, is more legally sound than the city council's claim of distance.[7]
City Councilor Carmichael Dominguez, who led the effort to prevent liquor sales near the school, wants the city to appeal the decision to the state's supreme court. He said that he respected the court's authority, but that he's going to "work to convince my colleagues on the council that we need to move forward and take it to the next level and do what we can to protect our families".[6][7] |
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News from Michigan
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For Michigan libraries: keep quiet, guns welcome
Court: Michigan Supreme Court
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| The Lansing, Michigan area library patrons have long been able to borrow books, access music and movies, and enjoy a quiet space to take in periodicals.[8] Now, they can do it all while openly packing heat.
The Michigan Supreme Court let stand a lower court ruling that prevents the Capital Area District Library system from restricting the open carry of firearms at its branch locations. The state capital’s libraries had banned the open carry of firearms on its premises, but the Michigan Court of Appeals ruled that the ban violated a Michigan law that prevents any local unit of government from instituting weapons bans.[9] The high court issued an order declining to hear an appeal of the decision, stating that it was “not persuaded that the questions presented should be reviewed by this court.[10]
The library’s ban had been thrust into the spotlight in 2011 when members of Michigan Open Carry, Inc. (MOC), a gun rights group, walked into a branch with their guns displayed in protest. When the library tried to enforce the ban, MOC sued. A county trial judge upheld the ban as a reasonable exercise of the library’s authority, but the Court of Appeals panel disagreed, stating that the state law preempted local ordinances.[11] Though the panel acknowledged that the anti-gun control law did not explicitly include libraries in its language, and instead restricts the ability of “local units of government” to create weapons control measures, the Court decided that the law nonetheless applied to the library system, as it was to be treated like a local entity.[12]
Attorney Gary Bender represented the Capital Area District Library in the suit. Reacting to the Supreme Court’s decision, Bender said that he felt the court left important constitutional issues unresolved. Rob Harris, media director for Michigan Open Carry, said that the court “vindicated” the group’s position that people have a right to openly carry weapons nearly anywhere.[9]
The Supreme Court’s actions mean that libraries throughout Michigan will no longer be able to regulate the possession of guns on their properties. Several bills have been introduced in the Michigan State Legislature that would add libraries to the list of the state’s gun-free zones, but none have been acted on.[12] |
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News from Wisconsin
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Appeals court rules county's grievance policy violates state statute
Court: Wisconsin Court of Appeals District IV
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| In a precedential case, the Wisconsin Court of Appeals District IV reversed a decision made by the Columbia County Circuit Court regarding a former Dodge County employee who was denied a grievance hearing after being terminated.[13]
The December 5, 2013 ruling was in favor of Heidi Buden, 41, who had previously worked for seven years as an elderly benefits specialist for Dodge County. The position required employees to have no drunk driving convictions on their record. On April 2, 2012, Burden was convicted of her first OWI (Operating While Intoxicated) offense, and was terminated three days later.[14]
Dodge County's personnel policy gives employees the right to file a grievance over terminations, but exempts certain situations such as, “termination of employment due to medical condition, lack of qualification or license."[15] The policy was revised in the wake of the 2011 statute Act 10, which requires municipal employers to create a "'grievance procedure that addresses employee terminations,' and identifies the elements the grievance procedure must contain."[15]
Dodge County's grievance procedure dictates that before filing a grievance, the employee will within five days:
- "Discuss the dispute with the supervisor who made the termination decision in order to informally resolve the dispute...
- If the dispute is not resolved the employee will prepare and file a written grievance with the department head within 10 days. The grievance is investigated, reviewed by the county administrator, heard by an impartial hearing officer and eventually decided by the county board."[14]
After being denied a grievance hearing because her termination was the result of “lack of qualification or license,” Burden and the American Federation of State, County and Municipal Employees (AFSCME) filed suit on May 9, 2012 in the Columbia County Circuit Court. The prosecution argued that Dodge County’s termination policy violated Act 10 by denying certain types of terminations access to the grievance procedure.[14] Dodge County asserted that Act 10 could not intend to grant all terminations the grievance procedure, because even separations such as voluntary resignations and retirements would then be given the same treatment. Judge W. Andrew Voigt ruled that Dodge County was in compliance with Act 10, and could define what did and did not constitute employee termination.[14][15]
Burden and the AFSCME took the case to the Wisconsin Court of Appeals District IV, where, on December 5, 2013, judges Brian Blanchard, Paul Lundsten and JoAnne Kloppenburg ruled in favor of Burden and the AFSCME. In the decision, Kloppenburg found the county’s argument to be invalid, since it “assumes that all employee separations are “terminations” within the meaning of the statute.”[15] The ruling found that the action taken against Burden was a termination within the plain language of Act 10.[15] The court did note that the term “terminations” is not inclusive of voluntary resignation or retirement.
After the reversal, Dodge County corporation counsel John Corey stated that no decision has been reached as to what will happen next.[14] |
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News from Oregon
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Lie detector detective caused unfair trial in meth case
Court: Oregon Court of Appeals
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| A methamphetamine-related drug conviction was overturned by the Oregon Court of Appeals due to a detective's claims to a jury that he could tell when criminals are lying. The court found that Baker County Detective Craig Rilee unfairly prejudiced the jury in the trial of Michael A. Watts by claiming that he could tell if a criminal was lying based on the pauses in their speech.
Detective Rilee was following Watts in 2010 when he noticed him hand off a brown paper bag to a woman in a restaurant near Baker City High School. Police discovered 20 grams of meth in the bag. Rilee proceeded to question Watts, who claimed he was in town for hunting and fishing. At trial, Rilee explained to the jury why he was certain that Watts was lying:
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I have been trained to look at all facets of a person's answers that they give…The verbal cues, the tone and pitch of their voice….When I asked a question, after numerous immediate answers and somebody pauses, that's an indicator to me that there's a deceptive answer.[16][3]
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Watts' attorney objected to this testimony, explaining that it was merely an opinion. The jury convicted Watts of possessing methamphetamine and delivering a drug near a school.
On appeal, Watts argued that the detective's testimony should not have been allowed. The appellate court agreed on November 26, 2013. Associate Judge Darleen Ortega wrote:
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The jury had to assess credibility in order to determine whether or not (Watts) acted with the requisite knowledge…In these circumstances, Rilee's testimony regarding defendant's credibility was likely to be harmful.[16][3]
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The case will return to the Baker County Circuit Court (8th Judicial District). |
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News from Florida
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Update: Marissa Alexander freed on bail
Court: Florida 4th Circuit Court
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| For our previous story on Marissa Alexander, see: Courtroom Weekly: Gunshots, gangs and Toys R Us, "Woman convicted for firing warning shot at husband gets a new trial," October 3, 2013
Marissa Alexander, who was sentenced to prison on multiple counts of aggravated assault for firing a warning shot at her husband, was let out of prison on December 4, 2013. Her bond was set at $200,009. She has served approximately three years of her 20-year sentence, but she was recently granted a retrial.[17]
During a heated argument with her husband, Rico Gray, in 2010, Alexander fired a warning shot in the house. Her husband had previously been convicted of domestic violence, and Alexander had a restraining order against him. No one was injured as a result of the incident.[17]
Alexander tried to claim self-defense under Florida’s “stand your ground” law. A concealed carry permit holder, she kept a weapon in her vehicle.[18] She retreated to her car to retrieve a gun, returned the house, and fired the shot near Gray's head after the dispute escalated. According to the State, the statute does not apply if retreat can and has been successfully initiated.[18] Alexander had never been in trouble with the law before.[19]
Because of mandatory minimum statutes on firearms violence, Alexander was sentenced to 20 years in prison. Outcries of excessive punishment and racial bias arose immediately after the trial. Additionally, proximity to the George Zimmerman ruling, which highlighted racial tensions in Florida and also invoked self-defense laws successfully, added to the controversy of this case.[18] Judge James Daniel of the Florida 4th Circuit Court handed down the original sentence in July of 2013.[19]
The Florida First District Court of Appeal determined that the burden of proof had been unfairly laden upon Alexander, and therefore she was not presumed innocent. The ruling resulted in a mistrial, requiring Alexander to be retried. The new trial is scheduled to begin on March 31, 2014.[18][20][17] |
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