April 05, 2006

MySpace Kid Convicted

The question is of what?

SayUncle is where I first saw it. He links to this Rocky Mountain News piece describing the court proceedings & the result. From the article:

"An Evergreen high school student who posted Internet photos of himself posing with guns was convicted Tuesday on a charge of possession of a handgun by a juvenile.
The conviction came despite his parents' testimony that they gave him permission to handle guns in their home without their supervision. "

In my initial post I point out the Colorado law which deals with juvenile possession of handguns & note that the MySpace Kid could very well fall into one of the excepted categories.

"But Jefferson County District Judge Brian Boatright said that permission had limits.
'That doesn't mean juveniles could run around the house and do whatever he wanted with the gun,' Boatright said, noting that the father testified that the boys were not allowed to load or fire the weapons unless he was present."

Excuse me?

Let me repeat myself:

According to Colorado law it's illegal for a minor to possess a handgun without their parents’ permission.

Colorado Statute 18-12-108.5 establishes the "crime" of juvenile possession of a handgun & the exceptions :

Now the relevant exception:

"(2) This section shall not apply to:

(b) Any person under the age of eighteen years who is on real property under the control of such person's parent, legal guardian, or grandparent and who has the permission of such person's parent or legal guardian to possess a handgun;

(c) Any person under the age of eighteen years who is at such person's residence and who, with the permission of such person's parent or legal guardian, possesses a handgun for the purpose of exercising the rights contained in section 18-1-704 or section 18-1-704.5."

How the hell can a judge decide to ignore the fact that the Myspace Kid committed no crime????

His father testified that he had permission to handle the weapons & he did so on real property controlled by his parent - in fact it was in his father's house. Am I really having so much trouble with my reading comprehension? Does not the Colorado law clearly provide an exception to the juvenile possession of a handgun "crime" if said juvenile had their parents’ permission & were on their parents’ property or in their parents’ home?

Jefferson County District Judge Brian Boatright.

Remember that name. He's decided that the law is of no consequence when it comes to punishing someone for possessing a firearm. Even though no crime was committed he found guilt through what can only be guessed at as a very creative or dishonest reading of the law.

Really, I'm trying to figure this out. Exactly how the hell could he misread the friggin law that badly? I shouldn't be surprised as the 2nd amendment is fairly straightforward but gets misread frequently, but still.

Either Boatright is a sinister bastard or too damn incompetent to be trusted with cashing his own paycheck, let alone weighing the law.

Or maybe it's me. Maybe I just cannot, with my lay mind, grasp the subtlety of the Colorado statute in question. By never having gone to law school perhaps I missed on the nuances within the text that give a view of the legislative remarks where it was assured that the language, as drafted, would never allow a juvenile to publish pictures of himself with handguns & get away with it even if he did have his parents permission. Maybe the few times I read over the text I somehow missed where it clearly said " no exception herein shall be construed as to over ride or otherwise constrain the will of a sitting judge, as even if he cannot define an offense under the law he surely knows one when he sees it".

But the MySpace Kid gets very little sympathy as he apparently wrote some things that trouble others. Odds are this bastard in a robe will get away with punishing a kid for not breaking the law. the NRA won't step in & I doubt any other alleged or actual pro-gun orgs will either. I do hope the MySpace Kid's family appeals. Hell I hope they find the most rabid, sleazy, bloodthirsty lawyer out there & end up owning the whole damn county after all is said & done. But Boatright cannot be punished by the law. Ah, it's good to be king judge, isn't it?

I plan on leaving Colorado soon; due mainly to the smoking ban & its impending effects on my livelihood, but people such as Boatright will make me miss it a little bit less than I would have.

To be fair if he had violated the law I'd still defend him, as even prior restraint laws aimed at juveniles are morally wrong (it's a parenting issue, not a government issue). But I have seen nothing in his actions that conflict with anything I've seen in the law.

Have you?

Posted by Publicola at April 5, 2006 06:21 AM | TrackBack

I don't know where you plan on going, but we've got plenty of room in Texas. We can always use more gun folks down here.

Posted by: T at April 5, 2006 06:45 AM

I hope the parents are smart enough to appeal, a reversal is a slam-dunk. Then, they need to file suit at the Colorado State Bar Assoc. to have that incompetant removed unceremoniously from the bench and barred from ever practicing law. He obviously has no integrity, no sense of justice, and even more obviously, no sense of the law itself.

Posted by: Retmsgt. at April 5, 2006 07:12 AM

I don't know where you plan on going, but we've got plenty of room in Texas. We can always use more gun folks down here.

Music to my ears! I'm headed your way this Fall, fleeing the People's Republic of Kalifornia for freer pastures.

Posted by: Jason at April 5, 2006 10:18 AM


I would agree, except that the removal needs to be very ceremonious in nature, replete with rope, tree limb, water tank, tar, feathers...

You get the picture.

Oh, and put it on CNN, or Fox, streaming live coverage from the internet...

BTW, Pub, you are SPOT ON with your analysis.

Posted by: -B at April 5, 2006 02:49 PM

Publicola, surely you recognize "legislating from the bench" when you see it?

Now it goes to the appeals court, where they can do it all over again!

Posted by: Kevin Baker at April 5, 2006 05:40 PM

I noted the comments about fleeing states that use arbitrary laws in the War on Guns. I would invite any who feel like giving the east coast a try to head to Pittsburgh, PA. We're right across the border from the county with the highest CCW rate per capita (Washington County, 25%), and our laws are quite sane. We also have numerous ranges and good hunting.

Posted by: Jared McLaughlin at April 6, 2006 04:29 AM

T I appreciate it, but Texas gun laws are a bit too strict for my tastes.

Ditto for Pa. Jared, but again appreciate the invites.

Kevin - legislating from the bench is just a rumor started by those right wing libertarian types to cover their sour grapes. A sitting judge would never bend, let alone ignore the law just cause he feels like it's a better policy decision. My my my this Kool-Aid is tasty. ;)

Posted by: Publicola at April 6, 2006 04:49 AM

Ermmm ... juvie court isn't about "justice". It is simply a hearing to decide if the parents are incompetent, and how much of a child snatch the State will execute.

Little details like the law or constitutionality matter little to a family court judge deciding on a child's custody.

Posted by: Kristopher at April 6, 2006 11:40 AM

Suggestion: please do as Nicki does on her blog. Post a phone number for the good judge so people such as us can call his highness.

Posted by: mark edward marchiafava at April 7, 2006 05:38 AM

Yeah, great, run to Texas. I'll just sit here and Colorado with the rest of the Californians.

Posted by: ErikZ at April 7, 2006 08:24 AM

Most county judges come up for election, but hardly anyone does any research on them, and they just get voted in again and again. Why? Because most voters will simply vote for a named candidate, or not vote at all - which is the same as voting for them. Take a look at the totals "for and against" for judges on your last ballot, then compare the totals to the votes for a major candidate or issue on the same ballot. Vote them out if they're not doing their job!

Posted by: OldeForce at April 7, 2006 05:04 PM

That judge is nuts.

Posted by: Josh at April 7, 2006 09:22 PM

I'm not sure the judge reached as far as you guys seem to think:

The parents admitted that they were shocked and disappointed that their son had taken and posted the pictures. That is, one can assume that they would not have given permission to take photographs with the weaponry and post it on myspace.

If the parents had instead said that their permission was completly blanket, they'd have a lot better argument. As it is, their argument sounds a lot like "we gave him blanket permission except for loading and shooting, but we would have never ever given him permission to do what he did".

The statute is ambigous as to the exact extent of activited that a parent can give consent to, certainly there are illegal, or quasi-legal activites that a blank permission would not cover. In the extreme, blanket permission would not allow a child to violate various criminal laws, such as threatening someone with a firearm. I *think* colorado uses a lesser-included indictment system which would allow indicting a minor for say, shooting at the neighbors cat, and in the alternative, the lesser charge of minor in possesion.

Juvinelle criminal law is a little like traffic law: as a matter of practicality, not every right and protection avaible for adults is likewise availible for youth. This is in part because the system is limited in its ability to punish juvinelles...remember, even convicted schoolyard killers, unless charged as adults, are typically out at 21. (Jonesboro shooter for example).

This is sort of like how you have a right to a jury trial for crimes that carry a 1 year sentence or more, but not for a traffic ticket, no matter how badly your rights were violated, etc.

Posted by: Bob at April 9, 2006 08:04 PM

The Colorado law makes it a crime to possess a handgun if you're a juevenile & don't qualify for one or more of the exemptions.

I can see a number of very practical reasons the parents would be upset with pics of thier firearm collection floating around the web, but that isn't the issue.

The issue is simple possession.

Likewise it's not ambiguous in scope, since the only crime is possession. Brandishing, threatening, reckless shooting, etc.. are all covered by other statutes so there was no need to include any language covering the extent of permission since this particular statute dealt with simple possession.

Now if the law had included a provision against posting pics while holding handguns then the "ambiguous permission" argument might have some merit. As it is it's just a justification by a judge for punishing a kid who did not in fact violate the law.

I'll throw a question your way though - let's say a kid had his parents permission to drive the car, & took pics of himself & some scantily clad teen aged girls hanging out on the hood of said car. Assuming the parents would have objected to such use of the car could you feasible reason that the car was stolen since, although he had his parents permission to drive it he did not have explicit permission to take pics of himself & scantily clad teenaged girls with it?

Posted by: Publicola at April 9, 2006 09:01 PM

(Remember...I'm as pro-2nd amendment as one can be)

The problem here is that the language of the law doesn't explicitly cover ever situation. I could argue an impresive breif to help the myspace kid, but under the Anglo-Saxon common law, it would still be up to the decisions of the judges.

Not to sound like a jackass, but, we have a common law system, we let judges figure out the grey areas. I think that parental permission to use a firearm, in Colorado, still has grey areas. So, keeping with the ~700 year common law tradition, until, the CO supreme court rules on the subject, there is still some ambiguity.

Now...on to your car example: to my mind, it doesn't work because it is not illegal for a 17 year old to possess a car WITHOUT parental pernmission. A better example might be narcotics, where possesion is illegal sans prescription+special circumstances.

If I get a prescription for, say wisdom teeth removal, but use it to throw a part with my friends, I may exceed the bounds of my exception, and become an an illegal possesor of opiates.

Posted by: Bob at April 11, 2006 10:04 PM


Posted by: sandra at May 3, 2006 02:51 PM