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1. Dianne Feinstein's Assault Weapon Bill is pretty much D.O.A.!
2. 4th Circuit rules that open carry, where legal, does not give police reason to detain or stop
3. Loudoun County may leave the Council of Governments because of anti-gun stance
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1. Dianne Feinstein's Assault Weapon Bill is pretty much D.O.A.!
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YOUR PRESSURE ON THE U.S. SENATE IS WORKING!
As predicted, Dianne Feinstein's "Assault Weapon" bill is going to get a vote, but it won't get close to passing. Harry Reid gave Dianne the bad news today.
Apparently all they could scrape up for Feinstein's bill was 40 votes. The Democrats who represent gun-friendly states are really starting to sweat the elections coming up next year - and they should. We will be watching Senator Warner here in Virginia very closely.Feinstein's bill was supposed to make any other gun-control bill look "reasonable" by comparison. She can try to amend another bill to put in her language, but that's really a non-starter.
We are by no means out of hot water. There are still two key items that the antis are continuing to push for because they think they can fool the public into supporting them:
* a ban on magazines that will hold more than 10 rounds and
* universal background checks
The Democrats in the Senate are putting together a gun-control package for a vote in April. That package will probably include both of the above items and a few other things, such as a "straw-man" purchase penalty.
At this point, we will be watching to see what exactly is put into the Democrat package and prepare to fight against the bill.
As an additional piece of good news, Senator Chuck Schumer's onerous background check bill is also D.O.A. Looks like Schumer and Feinstein will be crying in each other's beer tonight.
Coverage:
From the hill.com: http://tinyurl.com/bnccryh
Reid guts Senate gun control bill
By Alexander Bolton and Jonathan Easley
Senate Majority Leader Harry Reid (D-Nev.) said Tuesday he will not include a renewal of the federal assault weapons ban in a Senate gun control bill because it could not win even 40 votes on the Senate floor.
�Right now her amendment using the most optimistic numbers has less than 40 votes," Reid told reporters on Tuesday. "That�s not 60. I have to get something on the floor so we can have votes on that issue and the other issues we talked about."
Reid indicated a proposal sponsored by Sen. Charles Schumer (D-N.Y.) to expand background checks to cover private gun sales would not make it in the base bill, either.
�There are a couple different background check proposals floating around,� Reid said. �All these issues are important and I�m going to do what I can to make sure we have a fair, sound debate on this but we can�t have it unless I have something that I can put on the floor to proceed to it.
�I�m not going to try to put something on the floor that won�t succeed. I want something that will succeed,� he added.
Reid said he needs at least five Republican votes to begin a floor debate on gun-violence legislation. He hopes to bring the gun control bill to the Senate floor after the Easter recess.
Sen. Dianne Feinstein (D-Calif.), the sponsor of the assault weapons ban legislation, has been unable to find a Republican co-sponsor and talks between Schumer and Sen. Tom Coburn (R-Okla.) on a bipartisan deal to expand background checks fell apart earlier this month.
There is bipartisan support for legislation authored by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Kirsten Gillibrand (D-N.Y.) to crack down on the illegal trafficking of firearms.
Sens. Susan Collins (R-Maine), Mark Kirk (R-Ill.) and Chuck Grassley (Iowa), the ranking Republican on Judiciary, have endorsed the gun trafficking legislation. It will likely serve as the foundation of gun-violence legislation
Feinstein's bill would impose a ban on the sale and manufacture of more than 150 types of semi-automatic weapons with military-style features. Her measure was one of four bills approved by the Senate Judiciary Committee over the last two weeks.
The three other gun control bills approved by Judiciary are: a measure requiring universal background checks, a measure aimed at increasing security at schools, and a bill cracking down on the illegal trafficking and straw purchasing of firearms.
The push for gun control was launched after the killing of 26 people, including 20 children, at an elementary school in Newtown, Conn., late last year.
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Feinstein claims she isn't going to play dead:
from thehill.com: http://tinyurl.com/cmdacyy
Feinstein: �I�m not gong to lay down and play dead�
By Jonathan Easley
Sen. Dianne Feinstein (D-Calif.) shot back late Tuesday at the notion her federal assault weapons ban bill was doomed after Senate majority leader Harry Reid (D-Nev.) decided against including it in a base bill of gun control measures.
�This is very important to me and I�m not gong to lay down and play dead,� she said on CNN. �I think the American people have said in every single public poll that they support this kind of legislation.�
Reid earlier Tuesday said the Senate would vote on Feinstein�s bill as an amendment to the broader gun-reform package, but that it would not be packaged with some of the less-controversial measures that deal with increasing school safety, and cracking down on straw purchasers.
Reid defended the decision to reporters, predicting Feinstein�s legislation wouldn�t pull a majority even in the Democratic-controlled Senate.
�Right now, her amendment, using the most optimistic numbers, has less than 40 votes," he said. "That�s not 60. I have to get something on the floor so we can have votes on that issue and the other issues we talked about."
Still, Feinstein said Reid assured her the bill would be put up for a vote.
�What Sen. Reid told me was that I would have the opportunity for a vote. I take him at his word,� she said.
�It came out on a 10 to eight vote in the Judiciary Committee, and not to give me a vote on this would be a major betrayal of trust,� she added.
Feinstein argued that her assault weapons ban legislation that expired in 2004 took the same path as her current legislation.
�If it�s an amendment, it�s not a symbolic vote,� she said. �I did the bill in 1994 on the floor as an amendment. It was enacted there, it went on the House, and it was enacted there.�
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2. 4th Circuit rules that open carry, where legal, does not give police reason to detain or stop
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This affects Virginia (in a positive way):
From fedagent.com: http://tinyurl.com/d6q7gnc
Fourth Circuit Finds That Carrying a Firearm in an Open-Carry State Does Not Create Reasonable Suspicion and Provides Thorough Analysis of the "Free to Leave" Standard of Seizure
Written by FEDagent on 08 March 2013. Posted in Case Law Update
Nathaniel Black was part of a group of men in Charlotte, North Carolina who local police officers suspected might be engaged in criminal activity. In particular, Officers suspected that after seeing one of the men openly carrying a firearm - which was legal in North Carolina � that there was most likely another firearm present. When police began frisking the men one by one, Mr. Black wished to leave, but was told he was not free to leave. Officers chased Mr. Black and discovered that he possessed a firearm; it was later discovered that he was a previously convicted felon. Mr. Black was charged with being a felon in possession of a firearm. Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the evidence against him. His suppression motion was denied, he entered a guilty plea preserving a right to appeal the denial of the suppression motion, and he was sentenced to fifteen (15) years imprisonment. The United States Court of Appeals for the Fourth Circuit, however, determined that the officers had improperly seized Mr. Black, suppressed the evidence against him, and vacated his sentence.
On the night of June 15, 2010, Officers Matthew Zastrow and Shane Strayer of the Charlotte-Mecklenburg, North Carolina, Police Department were patrolling the Eastway Division of Charlotte, NC in an area which was known for armed robberies and violent crime.
As the officers were on patrol, they approached a gas station, where they saw a vehicle parked but not pumping gas. After three minutes of observation, the officers noticed that the occupant did not leave the car, pump gas, or enter the convenience store. Officer Zastrow determined that this behavior was unusual and likely indicative of a drug transaction.
The officers ran a check of the vehicle�s license plate, which revealed no outstanding traffic violations. The officers then followed the vehicle when it departed the gas station and drove to a nearby parking lot located between two apartment complexes.
At the parking lot, the officers observed the driver of the vehicle, later identified as Dior Troupe, park his vehicle and walk toward a semi-circle of five men in who were speaking and laughing with each other. Four of the five men were standing, but one, an African-American male later identified as Nathaniel Black, sat to the left of the semi-circle. The six men saw the police vehicle but did not react. The Officers noticed no indication of criminal activity.
Officer Zastrow then drove out of view of the group and requested assistance from other units, noting that he wished to engage a voluntary encounter, but did not wish to do so when significantly outnumbered. Once two (2) additional officers arrived, the four (4) officers drove back to the semi-circle and noticed that one of the individuals � Charles Gates � was known by them to have previously been arrested for drug and alcohol related offenses. However none of the officers knew whether Mr. Gates had ever been convicted of a crime.
The officers then exited their vehicles and approached Mr. Troupe. Seeing the officers� approach, Mr. Troupe pointed out to the officers that he had a firearm, which was holstered to his hip in plain view, so that they would be aware of its presence. Officer Zastrow later noted that although it is legal to carry a firearm openly in North Carolina, he had never seen anyone do so in the Eastway Division of Charlotte, which he had patrolled for several years. Officer Strayer seized the firearm and Mr. Troupe and stored it in a police vehicle. Officer Strayer also obtained Mr. Troupe�s driver�s license. Officer Zastrow and Officer Strayer would later testify that they had been trained to suspect the presence of additional firearms when they found one firearm, and thus they suspected another gun was present.
Around this time, two (2) additional officers arrived, and ultimately, one (1) more officer joined the group, and thus seven (7) officers were present at the scene, as well as several marked patrol cars. Once six or seven were present � the record was unclear as to when the seventh officer arrived - two officers stood about ten (10) to fifteen (15) feet away to ensure that no one would approach the scene; the court of appeals would later infer that this was also a measure to ensure that no one left the scene. As Officer Strayer was securing Mr. Troupe�s gun, the officers began to frisk the group of men one by one. Officer Zastrow then asked if any of the men lived in the nearby apartment complexes. Several of the men began to argue at this point, but Mr. Black calmly stood up and voluntarily presented his state identification card in a display of cooperation which Officer Zastrow found to be highly unusual, although several other men produced identification upon request. Mr. Black then stated that he was visiting friends in the area; this statement and the address on his identification card indicated tended to indicate that Mr. Black did not live in one of the nearby apartments. Officer Zastrow later described Mr. Black�s conduct as �extremely cooperative.� Officer Zastrow then kept Mr. Black�s identification card rather than return it to him.
As the officers proceeded to frisk individuals, Mr. Black began to look around, which some of the Officers would later explain is a sign that an individual is about to flee. Mr. Black then stood up and said that he was going home, and he began walking towards the apartments. Officer Zastrow then stepped in front of Mr. Black and told him that he was not free to leave and further remarked that he should sit down. Mr. Black replied with words along the lines of �I can�t leave?� or �I can�t go home?� and continued walking away.
Officer Zastrow then grabbed Mr. Black�s arm and felt that Mr. Black�s pulse was �extremely fast.� Mr. Black then began to run. Two of the officers directed Mr. Black to stop and then chased him when he did not. As another officer tackled Mr. Black, Officer Zastrow attempted to grab Mr. Black�s wrist so that he could handcuff Mr. Black. In doing so, Officer Zastrow felt a hard metal object beneath Mr. Black�s hand and immediately recognized it as a firearm. Officer Zastrow yelled �gun� and held on to Mr. Black arm until the firearm fell to the ground. Mr. Black was then immediately arrested.
Mr. Black was charged in a one-count indictment for possession of a firearm by a convicted felon, in violation of 18 U.S.C. � 922(g)(1). Before the United States District Court for the Western District of North Carolina, Mr. Black moved to suppress the firearm on the basis that it was the fruit of the unlawful seizure of his person. Mr. Black argued that he was unlawfully seized when he was told he could not leave, and the seizure was not supported by reasonable articulable suspicion. The Government relied on Supreme Court precedent in the case California v. Hodari D., 499 U.S. 621 (1991), to argue that until Officer Zastrow grabbed Mr. Black�s arm, Mr. Black had not been seized for Fourth Amendment purposes, and his seizure at that point was supported by reasonable suspicion. The district court agreed with the Government and denied the suppression motion. Mr. Black entered a conditional guilty plea preserving his right to appeal the decision and was sentenced to fifteen (15) years imprisonment to be followed by a term of three years of supervised release.
Mr. Black then appealed the denial of his suppression motion to the United States Court of Appeals for the Fourth Circuit.
The court of appeals had two distinct issues to consider on appeal: whether and when Mr. Black had indeed been seized, and whether his seizure had been lawful. The court of appeals thus explained that �[a] lthough brief encounters between police and citizens require no objective justification . . . it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity.� Terry v. Ohio, 392 U.S. 1, 21 (1968). Furthermore, �[a] person is �seized� within the meaning of the Fourth Amendment if, �in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.�� United States v. Mendenhall, 446 U.S. 544, 554 (1980).
Against this backdrop, the court of appeals noted that there are �[s]pecific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they �touched the defendant or made any attempt to physically block his departure or restrain his movement�; (v) �the use of language or tone of voice indicating that compliance with the officer�s request might be compelled�; (vi) whether the officers informed the defendant that they suspected him of �illegal activity rather than treating the encounter as �routine� in nature�; and (vii) �whether, if the officer requested from the defendant . . . some form of official identification, the officer promptly returned it.� Mendenhall, 446 U.S. at 554; Gray, 883 F.2d at 322-23.�
In light of these factors, the court of appeals determined that Mr. Black had clearly been seized well before Officer Zastrow grabbed his arm. The presence of up to seven police officers and multiple police cruisers constituted a �collective show of authority by the uniformed police.� Two of the officers also performed perimeter duty �ensuring that no other individuals interrupted the police interaction, and preventing the men from leaving the vicinity.� Furthermore, the officers had also seized Mr. Troupe�s firearm and stored it in a police vehicle, and they were also frisking the men one by one, again indicating that they were not free to leave. Also, the officers seized Mr. Black�s identification card and did not return it to him, again indicating that he was not free to leave.
Based on this analysis, the court of appeals determined that Mr. Black had been seized at least as early as when his identification card had been seized. The court of appeals viewed the verbal direction from the officers to Mr. Black not to leave and to sit down was not an initiation of the seizure, but an affirmation of an already existing seizure.
Given this determination, the court of appeals next turned to an analysis of whether the seizure had been lawful. The court of appeals noted that �[t]o be lawful, a Terry stop �must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.� Reid v. Georgia, 448 U.S. 438, 440 (1980). The level of suspicion must be a �particularized and objective basis for suspecting the particular person stopped of criminal activity.� United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009). As such, �the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.� Terry, 392 U.S. at 21.�
The court of appeals then reviewed each of the proffered articulable suspicions suggested by the officers. The court of appeals first noted that �Officer Zastrow�s suspicion that a lone driver at a gas pump who he did not observe drive into the gas station is engaged in drug trafficking borders on absurd. . . . [C]oncluding that Troupe�s presence in his vehicle at a gas station is suspicious is unreasonable.�
�Second, Gates� prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates� prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black.�
�Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms . . . Troupe�s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. . . . We are not persuaded. Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.�
Fourth, the officers� assumption that where there is one gun there is most likely a second the court of appeals held that it �would abdicate [its] judicial role if [it] took law enforcement-created rules as sufficient to establish reasonable suspicion. . . . Such a rule subjects to seizure or search anyone who actively or passively associates with a gun carrier. The seizure has no connection with the individual seized, the activity they are involved in, their mannerisms, or their suspiciousness; rather, the seizure is a mere happenstance of geography.�
�Fifth, it is counterintuitive that Black provided a justification for reasonable suspicion by volunteering his ID to the officer. . . . The record indicates that three of the six men provided identification to the officers, thus, Black�s action could hardly be characterized as overly cooperative. Additionally, we have noted that this type of argument�that cooperation is a justification for reasonable suspicion�actually places a defendant in a worse position than if he had simply refused to cooperate altogether because the Supreme Court has �consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.� . . . Likewise, there is nothing suspicious about the fact that Black�s ID revealed he lived outside the district. . . . The pertinent facts remaining in the reasonable suspicion analysis are that the men were in a high crime area at night. These facts, even when coupled with the officers� irrational assumptions based on innocent facts, fail to support the conclusion that Officer Zastrow had reasonable suspicion that Black was engaging in criminal activity.�
For these reasons, Mr. Black�s seizure was not reasonable. Accordingly, the decision to deny Mr. Black�s suppression motion was reversed. Rather than remand for further proceedings, the court of appeals vacated Mr. Black�s sentence.
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3. Loudoun County may leave the Council of Governments because of anti-gun stance
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From the leesburgtoday.com: http://tinyurl.com/cvwe833
Will Loudoun Quit The Council Of Governments?
by Erika Jacobson Moore
The Loudoun Board of Supervisors is threatening to sever its membership in the Metropolitan Washington Council of Governments following a board of directors� vote to endorse an International Association of Police Chiefs position advocating stricter gun controls.
The all-Republican board voted unanimously during last Thursday night�s budget work session to withhold the county�s FY14 $250,000 dues payment unless the COG board reverses the action. The money will remain in the budget for FY14, with instructions to County Administrator Tim Hemstreet not to release the money unless the position is changed.
County Chairman Scott York (R-At Large) and Supervisor Matt Letourneau (R-Dulles), who represent Loudoun on the COG board and made the motion to withhold the funds, said the regional panel reached too far in its endorsement of gun restrictions.
�Mr. York and I are obviously outnumbered at COG because of our political views,� Letourneau said. �We need to make a statement.�
The board sent a letter Monday to the COG Chairman Karen Lewis Young stating: �It is the position of the Loudoun County Board of Supervisors that the policy resolution adopted by the MWCOG Board of Directors is both inappropriate and disrespectful of the individual positions of the member governments and our law enforcement entities.�
The letter notes that gun control �is a national and state issue, and one in which localities in Virginia are required by statute [known as the Dillon Rule] to cede to the Commonwealth.�
The proposal to withhold funding got enthusiastic support from COG critics Supervisors Eugene Delgaudio (R-Sterling) and Suzanne Volpe (R-Algonkian), who have questioned the value of the county�s membership in the regional partnership of local governments. Other supervisors who are supportive of COG�s efforts to coordinate issues of regional importance, most notably transportation priorities, showed less support for severing ties with the group, but agreed with York and Letourneau that the Loudoun board should take a stand against the COG�s support for the IAPC position paper.
It is not yet clear what the impacts of pulling out of MWCOG could be.
�We have also asked the county administrator to go back and research and come back to the board and say if we effectively quit this is what it means and this is the potential impact,� York said. �We wouldn't have a seat on the Transportation Planning Board and a vote on transportation issues, and there is all the agreements, like for fire-rescue, that are inter-jurisdictional agreements. There could be some potential impacts to us.�
The position paper includes provisions on the 1994 assault weapons ban, body armor, concealed weapons, enforcement, waiting periods, an offender registry and weapons trafficking and tracing. The COG resolution, which was approved by a 15-5 vote, adopts the IACP positions as COG�s official positions on gun control.
But York and Letourneau noted this week that Loudoun County�outside of its towns�does not have a police chief, and the sheriff�s association positions are different than the IACP. And even those do not have the full support of Sheriff Mike Chapman, according to Letourneau.
Both supervisors said debate can be had over gun control and different positions on government�s role, but their concerns reside with what COG�s role should be. �My concern is that these sort of political hot button issues are going to be increasingly in front of COG and there is a desire to use it as a bully pulpit to deal with some of these,� Letourneau said Monday, �instead of what it should be, which is a unique body to deal with some of these regional issues and come up with solutions.�
York agreed that gun control was not an issue COG should take up, questioning the difference is between presenting a resolution on any number of other political �hot button� issues.
�This is a body that comes together to deal with regional issues�air quality, transportation, and other issues�and tries to find common resolution to these issues,� he said.
York also noted that COG includes Washington, DC, Maryland and Virginia, each of which have very different laws regarding guns and gun control. �There is nothing we can do as a COG organization to influence any of the three jurisdictions governance of those issues.�
After hearing the concerns from Loudoun�s representatives, Fairfax Board of Supervisor Chairman Sharon Bulova (D-At Large) made a motion to send the resolution to a COG committee to have it further reviewed by the COG police chiefs committee�the process by which almost all COG business is addressed. But that motion failed 10-10, with Fairfax, Manassas and Arlington representatives siding with Loudoun. However, in the end only the Manassas representative voted against the resolution. Neither Prince William County representative was present for the meeting, according to York and Letourneau.
Both are hopeful there could be a reconsideration of the vote at MWCOG�s next meeting, which is scheduled for April 10. According to Roberts Rules of Order, anyone absent for a meeting or who was on the prevailing side of a vote may make a motion for reconsideration. However, York noted that the specific rules of order for MWCOG could be different.
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