May 05, 2007

Sign Sealed Delivered

An old Stevie Wonder Tune. Not my favorite but a good one none the less. Vid Here.

I found the following over at Freedomsight:

"Delivery man fights gun charge
It violates his rights, he says, in seeking case's dismissal"

Needless to say I'm already sympathetic to the guy.

"Pizza-delivery man Andres Vegas, who shot two people in seven months who were trying to rob him during deliveries, says the concealed-carry criminal charge against him ought to be tossed out for infringing on his constitutional rights."

He must not have worked for one of the national chains as their "security policies" all proscribe the possession on any weapon, let alone forceful resistance. But 2 shootings in 7 months? That's definitely not a great delivery area.

But some background on Mr. Vegas:

"Vegas, 46, of Cudahy, was previously the victim of an armed robbery attempt in 2005, which was cited when prosecutors elected not to charge him in the July shooting. According to court records, he was also robbed, pepper-sprayed and beaten during a September pizza delivery, when he says he was unarmed.
Authorities found Vegas shot the suspected robbers - one on N. 22nd St. on Jan. 4 and a 14-year-old boy on N. 34th St. on July 14 - in self-defense during what he told police were attempted armed robberies."
(emphasis mine)

So the guy was robbed a few times previously & suffered injuries during the last one. He decided to carry something for protection & used it twice in legitimate self defense. The DA decided it was in fact justifiable self defense, but wanted to go after a technical violation of the state gun control laws.

"In a motion filed in Milwaukee County Circuit Court this week, lawyers for Vegas - he is fighting a misdemeanor charge for carrying a concealed weapon - contended that the state's concealed-weapons statute can't fairly be used against him because his job with Mona Lisa Pizza takes him places where he needs the gun for security.
'This prosecution functionally disallows Mr. Vegas' exercise of his constitutional rights to keep and bear arms for defense and security,' his attorneys, Craig Mastantuono and Rebecca M. Coffee, wrote in the motion."

The constitution of the state of Wisconsin in Article 1 Section 25 states, "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose." This was amended to the state constitution in 1998.

There is some case law relevant to Mr. Vegas' situation. (A quick note about the Wisconsin courts; they're out to lunch when it comes to anything gun related.)

An earlier case, State v. Nolie (2002) held that a man who armed himself while changing a flat tire in a high crime area didn't show enough cause to warrant a self defense jury instruction at trial. More or less that an exception to the prohibition on carrying concealed wouldn't be applied just because someone felt a general but not immediate threat. However it did not deal with the Right to bear arms provision of the constitution, instead the defense relied on a statutory exemption to criminal charges.

State v. Cole (2003) also has some relevance. As you can see in Cole they spend a significant amount of time noting how there's a strong presumption of constitutionality to any statute, with a very heavy burden of proof on the challenger. They also say that they are to go to great means to read a statute as being compliant with the constitution (the phrase "if at all possible" indicates the effort they feel they must put into that attempt). They further assume since the concealed carry law was a statute at the time of enactment of the constitutional provision in question that it was presumed that the constitutional provision was not in conflict with the statute law (despite their assertions that the plain text of a constitutional provision must be given deference). Then they acknowledge that the keep & bear arms amendment concerns a fundamental individual Right, but then they reason that a "reasonableness" standard is more appropriate than an intermediate or strict scrutiny standard. They actually say that if they adopted a strict or intermediate scrutiny standard that it'd make them the only state to do so!

So in Cole they find that the proscription on concealed carry is a reasonable exercise of the police powers of the state & not incompatible with the constitutional provision that asserts a Right to keep & bear arms, despite acknowledging an individual & fundamental Right to own & possess firearms.

Another case (decided at the same time as Cole) is State v. Hamdan (2003). This one involved a man with a concealed handgun in his own store. The store was located in a high crime area & Hamdan had used a firearm to kill an armed robber in self defense at this same location years prior to his arrest for having a concealed weapon on his person. The court reached the correct conclusion (that as applied to the situation the constitutional provision negated the concealed weapons prohibition) but the reasoning was schizophrenic in parts.

The court in Hamdan urges the legislature to clarify its' concealed weapons law in light of the recently enacted keep & bear arms provision in the constitution (recommended a licensing system of some sort). It also goes on to say that certain questions must be satisfied prior to a consideration of a charge being unconstitutional in light of the keep & bear arms amendment.

"First, under the circumstances, did the defendant's interest in concealing the weapon to facilitate exercise of his or her right to keep and bear arms substantially outweigh the State's interest in enforcing the concealed weapons statute?
The State generally has a significant interest in prohibiting the carrying of concealed weapons. Thus, to satisfy this element, the defendant must have been exercising the right to keep and bear arms under circumstances in which the need to do so was substantial.
Second, did the defendant conceal his or her weapon because concealment was the only reasonable means under the circumstances to exercise his or her right to bear arms? Put differently, did the defendant lack a reasonable alternative to concealment, under the circumstances, to exercise his or her constitutional right to bear arms? The invocation of this possible defense must be raised by motion of the defendant before trial, and resolution of these legal questions must be made by the court prior to trial. Affirmative answers to these questions will require a court to conclude that the State's enforcement of the CCW statute constituted an unreasonable and unconstitutional impairment of the right to keep and bear arms as granted in Article I, Section 25 of the Wisconsin Constitution."

A more recent case is State v. Fisher (2006). A man is charged with carrying concealed in a car. He argues that the charge is negated by the constitution's Right to bear arms provision, & that he keeps the firearm because of the threat of robbery (he claims to carry large amounts of cash routinely in the course of operating his business). The court says his circumstances are not extraordinary enough to make the concealed carry prohibition inapplicable under the stats constitutional provision.

In Cole, Hamdan & Fisher I would recommend reading the dissents by Justice Crooks as he seems to have some sense. & if you'rer not prone to spending hours pouring through case law (i.e. you have more sense than i do) there's an article in the Wisconsin Law Journal that sums up Fisher in light of Hamdan & Cole.

So what does this mean for Vegas? Well there's a little more about his circumstances:

"He was charged with the misdemeanor after the January shooting. Vegas had told police then that he kept the pistol on the seat of his car, which qualified as concealing it under state law. His attorneys contend he was stuck in 'an untenable situation' because of that restriction.
'If Mr. Vegas acted within the Milwaukee District Attorney's interpretation and prosecution of the (concealed-carry) statute, he would have become a robbery victim, or possibly worse,' the motion says.
Prosecutors have not yet had a chance to review the motion, and their response is due May 28. A hearing on the filing is set for June 29 before Circuit Judge Daniel A. Noonan. Vegas faces up to nine months in jail and a $10,000 fine if convicted."
(emphasis added)

What I'm not quite sure of is what he's being charged with. Wisconsin law proscribes 2 things that are potentially applicable to Mr. Vegas; there's a prohibition on carrying a firearm concealed (which would include within easy reach as in a glove box) & it prohibits carrying a loaded uncased weapon in a vehicle. I'm not quite sure if the prosecution is contending that the carry of a firearm by placing it on the seat of a car constitutes concealment or if they're actually charging him with vehicle carry & the paper is reporting it as concealed carry.

Oddly enough the Packing.org page for Wisconsin says that a 1994 case (State v. Walls) made the determination that an unloaded gun on a car seat was partially concealed from observation & thus a violation of the concealed carry law. So it would seem the DA is going after a concealed weapons charge based on Walls.

In any event I find the logic Crooks used in his dissents as being persuasive (in fact he's the only one that I think even knows what "logic" means on the court). I also find the other justices to be asshatted in their approach of things, making errors of both fact & law in their attempts to justify the statute. Given their convoluted reasoning I can easily see Mr. Vegas being convicted & that conviction being upheld. However even going by their own rather screwed up method of determining if an as applied challenge is applicable I think Mr. Vegas could succeed in an appeal.

He used the firearm in self defense. That would take care of the "imminent & immediate" threat criteria. This should also meet the first part of the two part test suggested in Hamdan. I think the second part of the test could be met rather easily since the state does not allow any alternative means of carrying in a vehicle that would be effective for self defense. It's an outright prohibition. Further with Walls presumably saying that open carry in a car is concealed carry for the purposes of the concealed carry law I can't see a way around carrying concealed in a car. If the statute says you can't carry concealed in a car & the case law says that carrying openly in a car is carrying concealed in a car then there's no alternative but to break the law when you feel it's necessary to have a firearm handy. & as I said before the fact that he used a firearm in successful self defense should prove that his interest in staying alive outweighed the state's interest in keeping folks from carrying concealed or in a vehicle.

But as I think i mentioned a time or two, from what I've seen of the justices on Wisconsin's Supreme Court I would not assume Mr. Vegas would be successful in court. As idiotic as some of their reasoning has been in the cases I've read so far I'd hesitate to think (although it's tempting) that they couldn't dream up an even more asinine & convoluted justification for upholding the prohibition on effective self defense in vehicles as applied to Mr. Vegas' circumstances. Justice Crooks is an exception but I fear he will not be persuasive.

Jed at Freedomsight said, "Best of luck with that, Andres. Unfortunately, I suspect that the court wont allow 'Otherwise Id be dead', as a positive defense." Actually going by the cases I linked above by their own reasoning they should, but I have a feeling if the case reaches them the mental gymnastics used to make an exception to their previous decisions would be worthy of Barnum & Bailey.

The bright side is that because he doesn't work for Dominos, Pizza Hut or Papa Johns he at least won't be fired for defending his life & carrying the most effective means to do so.

Posted by Publicola at May 5, 2007 10:06 AM | TrackBack
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