Red States Not 'Bout To Let You Snatch A Fella's Guns Away Just 'Cause He Offered To Shoot Some Folks
'Due process', Texas? About that.
One of the few provisions in the Senate gun bill that would actually do anything to prevent mass shootings is the funding of red flag laws in states that choose to have them, with the hope of encouraging those that don't to get some. Alas, even if that goes through, it is highly unlikely that Texas will be implementing their own — despite the fact that 75 percent of Texans would like that.
READ MORE! Senate Ready To Pass Gun Bill After All? Huh!
The Texas Tribune reports this morning that Texas Republicans are "balking" at the idea. If we were conspiracy theorists we might suggest that perhaps the reason for said "balking" is that such a law might deprive them of future executions. After all, if there is anything pro-life Texans love more than their guns, more than ensuring that people who appear to be a danger to themselves or others have access to as many AR-15s as their wee hearts desire, it is executing people.
“Anything that eliminates due process we will be fighting tooth and nail against,” Andi Turner, legislative director of the Texas State Rifle Association told the Tribune.
At the Texas GOP convention last weekend, delegates passed a resolution stating that these laws “violate one’s right to due process and are a pre-crime punishment of people not adjudicated guilty.”
READ MORE AGAIN! Texas GOP Convention Gun-Humping, Queer-Hating Freedom Jamboree!
First of all, as with anything in our criminal justice system, red flag laws could indeed be used in a way that violates due process. If for some reason a state decided that all someone needed to do in order for one to be granted was to call up police and request it, that would certainly violate due process. Fortunately, that is not actually how Extreme Risk Protection Orders work. First the police screen them and then a judge rules on them, and the person the ERPO is against is then allowed to make their case to the court. As long as those things occur, it is not a violation of due process. Anyone who has tried to get an Order of Protection or a restraining order can tell you these things are not handed out willy nilly.
That being said ... is Texas really all that big on due process? The state currently has a man on Death Row whose lawyer literally slept through his trial, and who was convicted almost entirely on the statement of one eyewitness and the state won't grant him an appeal. Why? Because really, who is to say a lawyer can't provide an adequate defense while taking a nap? And this is not even the first time this exact scenario happened in the state (though to be fair, the defendant in the previous case was eventually freed).
In 2020, the US Supreme Court found that because Terence Andrus's lawyer failed to introduce a "tidal wave" of exonerating evidence, his death sentence ought to be vacated. Texas decided to just go ahead and ignore that ruling entirely, keeping Andrus on Death Row, and just last week, the now extremely conservative United States Supreme Court reversed its previous ruling and decided that was just fine. That doesn't mean Andrus's rights to due process were not violated, it just means that Texas and the US Supreme Court have decided they don't care.
Death Row inmate Ray Freeney will be executed in Texas despite the fact that a judge ruled for the prosecution and signed her name to their brief two days before the defense submitted their legal arguments and new evidence.
And let us not forget the wrongfully executed Cameron Todd Willingham.
That's not even the only way due process is frequently violated in Texas. There is also the Failure to Appear/Failure to Pay program in which the state strips people of their driver's licenses for failure to appear in court or pay fines, regardless of their financial ability to do so. So they're more more than happy to take away someone's driver's license and ability to earn a living because they can't pay a fine, but taking their guns away because they're walking around talking about how much they'd like to murder people would be a step too far?
Then there is the state's fancy new anti-abortion law that allows Texans to sue anybody, regardless of what state they live in, who participated in "facilitating" an abortion — whether through funding, advice, transportation, or anything else they can come up with. That's not too great for due process either.
Texas is, of course, not the only state that will likely oppose red flag laws while simultaneously being terrible about due process. In his continued efforts to fully clear his name, Damien Echols of the West Memphis Three has recently requested that the state of Arkansas test DNA found at the scene with new technology previously unavailable, but prosecutor Keith Chrestman wants to deny him the ability to do that because someone else's DNA being there would not mean that Echols wasn't there as well. This is a familiar refrain among judges and prosecutors unwilling to set people free after it turns out they are not a match for DNA found on the scene.
I'm sorry — I find it very difficult to believe that people who have no particular compunctions about incarcerating or executing those who are innocent or who have had their constitutional rights trampled on, or taking away someone's ability to earn a living because they can't afford to pay a fine, or who are totally fine with the grotesque abortion laws, are opposed to red flag laws because they care so very deeply about "due process." If you only care about due process being violated as it concerns your own pet issue, then it's not really "due process" you care about. That is why, despite my opposition to guns, I would oppose any law I believed violated anyone's constitutional right to due process.
If this were about "due process" and not simply the desire to pretend that guns have nothing to do with mass shootings (or successful suicides), those ringing that bell would not only be able to explain how they do that, but would also be open to discussing ways to ensure that they don't — by instituting objective criteria and ensuring people have the right and ability to challenge Extreme Risk Protection Orders. One way to do that is increased funding, particularly that which is directed towards training law enforcement officers in the execution of these laws.
But it's not. It is absolutely about wanting to remove guns from the "mass shooting" conversation. It's about their belief that any regulation on guns, whatsoever, is categorically wrong. And they've got a friend in the Supreme Court.
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Eighth Circuit Rules Boycotts Don't Count As Speech, For Reasons
Spending money is speech, but not spending money isn't.
The US Court of Appeals for the Eighth Circuit yesterday upheld an Arkansas law that prohibits contractors from boycotting Israel, claiming that politically motivated boycotts don't really count as speech because they're only economic activity. Weirdly, a three-judge panel of the same court had ruled in 2021 that boycotts are constitutionally protected speech — as had the Supreme Court, but that was in a different time — but the full court voted to reverse that ruling Wednesday.
The plaintiff in the case, the alternative newspaper Arkansas Times, sued to overturn the law, which requires contractors with the state to reduce their fees by 20 percent if they don't sign a pledge not to boycott Israel during the time of their contracts. The University of Arkansas Pulaski Technical College demanded the Times sign the pledge in order to carry advertising for the college.
Arkansas is one of 30 states, plus the federal government, that have passed laws to blunt the "boycott, divestment and sanctions (BDS)" movement that seeks to use economic pressure to change Israel's policy toward Palestinians. Now, with the anti-BDS legislation as a model, states are legislating that you can't "discriminate" against fossil fuels, or gun manufacturers, by withholding investment dollars from them either. We imagine Florida will soon make it illegal to refuse to contribute to Republicans.
Previous federal court rulings have found most of those statutes unconstitutional, but states were able to get them upheld by narrowing them only to cover large contracts for more than $100,000. Arkansas's law, with the mellifluous name "Act 710," is far broader, applying to contracts worth $1,000 and up. It's fairly typical of the kind of legislation other federal courts have rejected, but here's an appeals court that thinks it's just peachy.
Judge Jonathan Kobes wrote in his opinion in the case that the Arkansas law merely prohibits "purely commercial, nonexpressive conduct" and
does not ban Arkansas Times from publicly criticizing Israel, or even protesting the statute itself. It only prohibits economic decisions that discriminate against Israel. Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.
This seems like a fine place to mention that when Donald Trump appointed Judge Kobes to the federal bench, the American Bar Association gave him a "not qualified" rating.
The publisher of the Arkansas Times, Alan Leveritt, will meet with the American Civil Liberties Union, which has represented the Times in the case, to plan an appeal to the US Supreme Court, because get out of here, of course boycotts are political speech.
ACLU attorney Brian Hauss has already committed to taking the case to the Supremes; in a statement, Hauss said,
The court’s conclusion that politically-motivated consumer boycotts are not protected by the First Amendment misreads Supreme Court precedent and departs from this nation’s longstanding traditions. It ignores the fact that this country was founded on a boycott of British goods and that boycotts have been a fundamental part of American political discourse ever since.
Leveritt noted that while the Times hasn't actually taken a position on boycotting Israeli products or investments, he opposes the Arkansas law because the state shouldn't be able to compel anyone to take a political position as the price of doing business:
We are obviously disappointed and note that these laws, which were originally passed in over 30 states, have been overturned in every court except this one. We consider being banned from doing business with our state government for refusing to sign a pledge not to boycott Israel a ridiculous government overreach that has nothing to do with Arkansas. More importantly, in our particular case it requires the Arkansas Times to take a political position in return for advertising. We don’t do that.
Previous federal court rulings — and the 2021 decision that the Eighth Circuit threw out yesterday — have been based on a 1982 Supreme Court decision case, NAACP v. Claiborne Hardware Co. (1982), that involved civil rights supporters boycotting white-owned businesses in Mississippi. In that case, the Court held that while states do have the right to regulate businesses, that right "could not justify a complete prohibition against a nonviolent, politically motivated boycott.”
Arkansas argued that the applicable precedent should be a 2006 case in which the Court said the federal government could withhold some funds from universities that didn't allow military recruiters on campus, in protest of the military's "Don't Ask, Don't Tell" policy against LGBTQ service members. In that case, the Court held that banning recruiters was not "expressive conduct" under the First Amendment, since the actual expression was accomplished "not by the conduct but by the speech that accompanies it.” Gosh, that's pretty much the model for Kobes's ruling!
Yr Doktor Zoom is not an attorney, but it sure seems to us that maybe the 1982 case is a lot more relevant since it involves actual boycotts based in a political position, not military recruiters on campus, but we could be missing something brilliant there.
Also too, at least one judge on the Eighth Circuit, Judge Jane Kelly, dissented, writing that the law really could go beyond boycotts and chill other free speech:
One could imagine a company posting anti-Israel signs, donating to causes that promote a boycott of Israel, encouraging others to boycott Israel, or even publicly criticizing the act with the intent to "limit commercial relations with Israel" as a general matter. [...] And any of that conduct would arguably fall within the prohibition.
And while this case involves an anti-BDS law, if it's upheld by the Supremes, that could have some serious implications for speech on a variety of matters, as filmmaker Julia Bacha points out on the Twitters (her company has produced a documentary on anti-boycott laws).
When we started production, the risk that the anti-BDS bill would be used as a template was still theoretical. By the time we locked-picture, it was a reality. There are now anti-boycott bills targeting your right to protest the fossil fuels industry.
There are also anti-boycott laws targeting your right to protest the gun industry.
Again, not a lawyer, but it seems to me that similar arguments could be made to support things like Ron DeSantis's attempts to economically harm Disney because the company supports LGBTQ rights. Presto: Florida isn't using state funds to punish companies that don't like the state's policies, because suddenly it's only economic activity, and the only speech is what DeSantis might say about Disney.
As several smartasses on Twitter have pointed out, Judge Kobes and other Republican jurists have an odd idea of what counts as free speech. Corporations, which are people my friend, can always be sure that spending money is a form of free speech. But apparently Americans aren't also allowed to not spend money as a way of expressing opinions, because then it's merely economic activity.
[Editrix's note: We all agree here that the West Bank settlements are SOME SHIT, but this is a post about boycotts, free speech, and batshit judicial rulings, and is not license to go crazy in the comments, because y'all have been known to slide easily from criticism of Israel to some actual gross antisemitism, yes, even here, so don't do that I fuckin mean it, the end.]
[AP / Arkansas Times / Al Jazeera / WaPo / Lawfare]
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Senate Ready To Pass Gun Bill After All? Huh!
It has grants for red flag laws and closes the 'boyfriend loophole.' Good!
The Senate appears ready to actually pass a real bipartisan gun bill, modest though it may be, after a procedural vote yesterday moved the legislation forward on a 64-34 vote yesterday. It's likely to get a final vote by the end of the week, which is encouraging. The vote came a few hours after the bipartisan negotiators released the text of the bill and announced that they had overcome Republican qualms that had appeared to put the bill in danger last week.
Read More:
We Got A Gun Bill! It's ... OK, We Guess?
John Cornyn: Wait, Did I Say 'Gun Bill'? Pretty Sure I Said 'Guns Are SWELL'
California's Red Flag Law Stops Mass Shootings, How Is That Even Legal?
All 50 Democrats in the Senate voted to move the bill forward, as did 14 Republicans, including lead GOP negotiators Sens. John Cornyn (R-Texas) and Thom Tillis (R-North Carolina). In a statement, the negotiators, who also included Democrats Chris Murphy (Connecticut) and Kyrsten Sinema (Arizona), said,
Our legislation will save lives and will not infringe on any law-abiding American’s Second Amendment rights. [...] We look forward to earning broad, bipartisan support and passing our commonsense legislation into law.
Modest though the "Bipartisan Safer Communities Act" is, it does include provisions that are likely to reduce some gun deaths. Most notably, it funds grants to states to implement "red flag" laws that allow judges to temporarily take guns away from people who are a threat to themselves or others. As we've noted, red flag laws really do save lives, and even prevent mass shootings.
The bill also closes the "boyfriend loophole" by prohibiting gun ownership by those convicted of misdemeanor domestic abuse or stalking of a dating partner or recent dating partner, and enhances background checks by allowing checks of juvenile records before a firearm purchase.
Other provisions clarify who must register as a federal firearms dealer (It's this one guy named Dave), and also will crack down on gun trafficking and illegal "straw purchases" of firearms, like when a person with a clean criminal record buys a gun from that asshole Dave on behalf of someone who's prohibited from owning a gun. People pardoned by Donald Trump will still be able to buy all the guns they want.
Also too, the Texas Tribune explains, the bill
includes $11 billion for mental health services and $2 billion for community-based antiviolence programs. It also includes money to help young people access mental health services via telemedicine, money for more school-based mental health centers and support for suicide hotlines.
Gosh, those are the sorts of things a civilized nation should already have, even without horrific massacres persuading a few Republicans to talk about "mental health" instead of doing anything about guns.
As we noted last week, Republican negotiators created a lot of drama about the bill's support for red flag laws and the closure of the "boyfriend loophole," because what is a "recent" dating partner and how dare we keep stalkers from protecting themselves from Antifa? Politico explains the bill offers an out for first-time offenders if they keep their noses clean:
The legislation would change federal law so that if a person has a misdemeanor conviction for assaulting a dating partner or a recent former dating partner, they would be barred from purchasing a firearm. Under the deal, that person’s right to purchase a firearm would be reinstated after five years if he or she is not involved in any violent acts or felonies during that period. This would apply to people in this newly created category who are first-time offenders.
We'll see how that works in practice; if it turns out that guns are returned to people who then go on to kill former partners — which seems a real possibility — that may need revision. Haha, as if Congress will pass another gun law in the next 30 years. Also, as the New York Times points out, the prohibition on gun ownership for non-married abusers can't be applied retroactively, so only partners of recent or future abuse or stalking can dare a sigh of relief. Maybe it'll be of some comfort that bipartisan compromise is allegedly how great laws get passed.
The Times also notes that in addition to providing funding for new red flag laws — but not a federal one, so red states can continue to insist that taking away the guns of someone who has, say, threatened schoolchildren is tyranny and decline to instate them — the bill will also give grants to support
what Mr. Cornyn described as “crisis intervention programs,” including programs related to mental health courts, drug courts and veterans courts.
Still, it's a hell of a lot better than anything that's been passed since the last major gun law in this country, way back in 1994 when we first got the national background check law and the 10-year assault weapons ban that George W. Bush allowed to expire. Congress has nibbled around the provisions of the background system since then without making it significantly better, and it's still possible for people to sell used guns in private transactions without a background check.
As you'd expect, gunhumpers immediately whined that the very small changes to national gun laws would be unconstitutional and would "make gun owners second class citizens." Missouri candidate for US Senate Eric Greitens, who recently ran an ad fantasizing about hunting and murdering fellow Republicans, called it a "gun confiscation bill" and claimed it would be "one of the most anti-2A laws ever passed." Also, fuck that guy. Needless to say, the National Rifle Association condemned it as well.
Sen. Rick Scott (R-Florida), who as Florida governor supported a much more robust gun law following the 2018 massacre in Parkland, Florida (including a state red flag law), voted against the Senate bill because he still thinks he can be president some day.
Even so, the bill has the support of Minority Leader Mitch McConnell, who voted to advance it yesterday, so it's likely to pass before the July 4 recess, and then it should easily pass the House and be signed into law.
Like, unless five Senate Republicans suddenly decide to not vote for it and it's killed off by the filibuster. But what are the odds of a last-minute reversal by Republicans, huh?
[Politico / Texas Tribune / NYT]
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Oklahoma Dude Traipsing Around With AR-15, Pistol, Tactical Vest Just Fine, But Brass Knuckles A Crime
Just like the Founders wanted!
In Broken Arrow, Oklahoma, last week, a whole bunch of panicked citizens called 911 to report a guy walking around town wearing a tactical vest and carrying a loaded AR-15 and a holstered revolver. First, employees at the courthouse locked the doors and called 911 when he tried to enter wearing the vest, but otherwise unarmed. Then he showed up at a strip mall, this time fully armed, leading to a bunch of 911 calls. He went into an AT&T store, and terrified employees ran out the back of the store and, again, called 911. Finally, he started walking toward a Target store, prompting more 911 calls from people who thought they were about to witness or become victims in another mass shooting, which are all the rage these days.
But none of those incidents were actually crimes, thanks to Oklahoma's gun laws, which allow open carry of long guns and pistols, although at the moment Oklahomans are still prohibited from open carry of tactical nuclear weapons. It's also legal to have a concealed weapon in most places, because it is a "constitutional carry" state, which means the more guns, the better. No license or permit is needed for either open or concealed carry. Openly carried handguns do at least have to be in a holster, and concealed weapons have to be completely out of sight, so there's that.
As for the heavily armed gent in Broken Arrow, while cops did warn him that he was going to generate more 911 calls if he kept walking around looking like that, he wasn't breaking any laws. After he went into the AT&T store and more calls came in, cops did find out that the dude had a misdemeanor warrant (unrelated to the walking around armed bit), so they arrested him before he entered the Target.
When they searched him, they found a set of brass knuckles, which actually are illegal in Oklahoma, what with there being no well-funded brass knuckle lobby. They also found he had another firearm, a .50 caliber semiautomatic handgun, which was concealed, but Oklahoma only allows handguns up to .45 caliber, so he was charged for that one, too.
So just to be clear: Terrified people called 911 again and again on the scary looking dude carrying a small arsenal, but it was all legal until cops found the brass knuckles and the .50 caliber handgun.
We'll assume this disturbing incident will result in swift action by the Oklahoma legislature to overturn any remaining limits on handgun caliber.
Rogers County Sheriff Scott Walton told the Tulsa World that the fellow who looked like he was ready for a shootout was in fact not breaking the law, but added,
quite honestly, nobody needs to be walking down the street with a rifle. [...]
But I don’t make the laws; we just try to live by them and do a very difficult job in a world that’s got those people in it.
Walton explained that the guy hadn't been carrying any weapons when he went into the courthouse, and the AT&T store didn't have a sign saying weapons aren't allowed. And he never actually tried to enter the Target, so no crime there either.
Walton said that such situations makes law enforcement's job "a lot harder," what with people being allowed to carry assault weapons all over the place.
“If I spook the right person, they might send me to meet Jesus,” Walton said. “Here’s a guy with a rifle that can take me and a lot of other people out, but he’s not doing anything. Now I got to make a decision. That decision is a lot tougher now.”
Now, before you start thinking Walton is some kind of gun-hating radical, we should also point out that in February 2020, the sheriff also declared Rogers County a "Second Amendment Sanctuary," which doesn't actually mean anything legally, but signaled he loves guns and the good citizens who carry them for freedom, and will never ever take them away for tyrannical purposes. At the time, he said that "Good people do not get in trouble with guns, they just don't.”
Mind you, we suppose "good people" only includes those who wander around carrying an AR-15 and pistol of the proper caliber. Add in brass knuckles and you're dealing with a dangerous criminal.
Also too, at a forum on active shooting incidents last week, Tulsa Police Captain Mike Eckert explained that since law enforcement is best equipped to determine the nuances of whether particular armed citizens are behaving lawfully, citizens should call 911 if they feel somebody might be dangerous, and let cops deal with it.
“If somebody is causing you concern or putting you in fear for some reason, that’s what 911 is designed for,” Eckert said.
“With Oklahoma being an open-carry state, it’s not against the law to carry a firearm, but it is against the law to commit a crime with a firearm. Sometimes that can be very muddy waters to deal with or work your way through.”
A Broken Arrow police spox also told the World that it might be a good idea for folks to be familiar with state laws, to help them decide whether to call 911, but go ahead and do so if you see something you think is suspicious. So if you see something, say something, just don't assume cops can stop anyone. Or something.
Sheriff Walton also appears to have thought carefully about the subtleties of who exactly is a good guy with a gun, as illustrated by the incident in Broken Arrow.
“I don’t expect everyone to become educated on the fine line of the law. If you’re waiting too long to make that decision (to call 911), that in itself is life-threatening.”
The best thing to do under current Oklahoma law is to call the police to make the determination, he said.
“I think of: What would I want my daughters-in-law to do if they had my grandkids and saw someone like that?” Walton said. “My answer would be: Call the police. 911. Let us go to work.”
Then, assuming the scruffy guy looking like a potential mass shooter doesn't have any brass knuckles on him, he can go about his day and we can all rejoice that the Second Amendment protects all our freedoms.
[Tulsa World / KTUL-TV]
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