All posts by Carl Bussjaeger

Firearms Policy & Law Analyst at The Zelman Partisans Personal Blog: https://www.bussjaeger.us/blog/
Courts, Law, self defense

That’s Not How Stand Your Ground Works

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Understanding use of force law is pretty important if you’re going to carry a gun, whether lawfully or unlawfully. And we’ve identified another attorney you really don’t to defend you in court because defense attorneys should know that, too.

KC parade shooting suspects may pursue ‘stand your ground’ defense
The man accused of firing the first shots at the Kansas City Chiefs Super Bowl rally told authorities he felt threatened, while a second man said he pulled the trigger because someone was shooting at him, according to court documents.
[…]
Trial attorney Daniel Ross described the stand your ground law as a “formidable defense” that he and many other Kansas City defense attorneys anticipate will be used in Mays’ and Miller’s cases. He said the law puts the onus on the prosecution to disprove claims that a shooting is lawful self-defense.

Ross needs to, you know, actually read 563.031, Missouri’s “Stand Your Ground” law. “Felt threatened” is not sufficient.

1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

Reasonably believes the use of force is necessary to defend against an imminent threat. The problem with that appears to be this:

When interviewed by law enforcement in the hospital, Mays said he drew his gun first and began firing first. When asked why he advanced on the group of people to begin with, Mays said, “Stupid, man. Just pulled a gun out and started shooting. I shouldn’t have done that. Just being stupid.” He claimed that someone in the group had told him “I’m going to get you,” which he took as meaning “I’m going to kill you.”

So Mays approached them first, drew first (if his opponent hadn’t drawn, that seems to leech some of the “imminent” from the situation), and shot first. Let’s look at the first exception to the 563.031 defense.

(1) The actor was the initial aggressor

Mays’ own words seem to indicate that he was the initial aggressor. Mean words don’t necessarily count. For a SYG defense, Mays would have to explain why he reasonably believed that “I’m going to get you,” was both a credible death threat and imminent. And why those words from an unknown “someone” justified targeting Miller, or was it the whole group. We really don’t know that part yet.

And that would only justify the use of force against the second shooter, Miller, or possibly the two unnamed minors arrested, if they were shooting at Mays. It would not be a defense for the innocent parade attendees who were not involved to the alleged dispute who were also shot (with one killed).

Miller might have a SYG defense for shooting at Mays; but again that doesn’t apply to the bystanders shot.

Even when the use of deadly force is appropriate, you have a legal obligation not to kill innocent bystanders; that’s at least manslaughter. Merely wounding the innocent is assault.

As yet, we’re only seeing a couple of second degree murder charges. I think those are just placeholders while the forensics folks sort which of the 23 people were each shot by whom. I expect Mays, at least will be facing multiple attempted murder charges (for the group he seemed to be firing on). At best, whoever killed the DJ will see a manslaughter charge, and everyone who wounded the others will see assault charges.

There were at least four guns located, and quite a few rounds fired, so sorting that out is going to take a while.

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authoritarian swine, Schools and campuses, Uncategorized

Uvalde Cops CAN Act Quickly

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You just have to find the right motivator.

You may recall the 2022 school shooting at Robb Elementary, in Uvalde, Texas. If not, here’s a synopsis.

  • Police observed a scumbag actively shooting at people near the school.
  • Rather than do something about it, the officer radioed in for permission to act.
  • By that time, the shooter made it into the school.
  • Police — hundreds — responded to the scene, but did not engage the killer.
  • The killer spent a great deal of time in a classroom shooting 40 people; students and teachers.
  • One officer attempted to enter the classroom. Other officers forcibly stopped him.
  • After 77 minutes, the police finally went in.

The end result was 19 dead children and two dead adult victims.

It’s been nearly a year since I’d heard anything more about this. I assumed it had simply fallen out of the mainstream “news” cycle while they concentrated on “get Orange Man Bad.”

Nope. It turns out that the Uvalde prosecutor, Christina Mitchell, has been slow-walking and blocking the investigation into the police [lack of] response.

Which led to this little incident, which shows the Uvalde cops can respond quickly. When they feel like it (like when someone is criticizing them).

Brett Cross committed the horrific crime of telling a county commissioner, “My child is fucking dead!” He was immediately arrested, cuffed, taken out, and put into a police car. (Pardon the language, but I thought the exact quote leading to his arrest was needed.)

Why would these grieving parents suspect a cover-up, driving them to the criminal use of naughty language?

  • It took more than a year for prosecutor Mitchell to convene a grand jury.
  • No officer was called to testify until a few days ago.
  • The Texas Rangers hired a doctor to determine if any of the dead victims might have survived if the response had been quicker (at least four still had heartbeats when found).
  • Mitchell shut down the doctor’s part of the investigation, and didn’t allow him to review autopsy reports (apparently they’re still sealed since the grand jury is “investigating”).

That last part is key. A determination that any of the children could have lived if the cops had done their jobs would be the most likely basis for criminally charging the cops.

So long as Mitchell is covering for the cops, I hope she remembers to kill any investigation of where the money for Level IV vests for every single Uvalde officer went. They claimed to have the cash in hand four years prior to the school shooting…

… and then pleaded a lack of vests as the reason they didn’t go in against a murderer with a rifle. Can’t have anyone looking into that.

Yep, the Uvalde police can be real brave when an unarmed, grieving parent starts cussing.

(Hat tip to Wisco Dave)

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Uncategorized

Uninformed “Whistleblowers”

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I spotted an odd headline today.

Biden Administration Preparing to Ban Private Gun Sales: Whistleblowers
President Joe Biden’s administration has drafted a document that would effectively ban private gun sales by requiring background checks for all transactions, even those made between private citizens, according to a whistleblower group.

That would be Empower Oversight, more of a whistleblower support organization. But why we need “whistleblowers” to tell us that the ATF is sneaking around to change the rules is odd…

Since they published the Notice of Proposed Rule-Making last year. You commented on it, right? Maybe your comments even got posted. Maybe.

What Empower Oversight did was send a letter to Attorney General Merrick Garland about those devious miscreants at the ATF.

The draft rule received immense comment and was interpreted by many to require that any private citizen who sells even a single firearm online might be required to register as an FFL…

Yep. I certainly did. Because it would.

This proposed rule, essentially requiring any person, selling a single firearm to pay bills, to first obtain a Federal Firearms License (FFL), is blatantly unconstitutional. It also would not work as advertised, and would even be counter-productive.

But back to EO’s letter.

<

…despite clear language in law since 1986 that the term “engaged in the business” of selling firearms “shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms,”

They are referring to the Firearms Owners Protection Act of 1986. And yes, that language was there. But they missed the bit in the so-called Bipartisan Safer Communities Act of 2022 that The Zelman Partisans warned you about.

When we heard that these senate scum would “clarify” what it means to be in the “business” of selling firearms — requiring an FFL — I hoped, but didn’t actually expect, that they might finally set a threshold for number of sales in a defined time period. That isn’t what we’ve gotten.

Instead, they changed the definition from “with the principal objective of livelihood and profit” to “predominantly earn a profit”.

No longer would you need to be selling enough guns to make a living. Just a single sale, if your intent is to make money, suffices to require a Federal Firearms License. There is no exception for sales to friends or family. There is no exception for sales to pay off medical bills.

They legislatively changed the old 1986 definition. The ATF’s rule is “merely” implementing the law.

Perhaps Empower Oversight should assign someone to watch TZP for updates like that.

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Constitution, Courts, Law, SCOTUS

Post Office Gun Ban Struck Down

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Federal Judge Kathryn Kimball Mizelle, of the Middle District of Florida, ruled that the ban on firearm possession in post offices is unconstitutional, in US v. Ayala. She cites the BRUEN test of general, historical legal tradition.

Mizelle gave the government multiple chances to present some evidence of such historical tradition. The best they could do?

the United States fails to point to sufficient historical evidence supporting § 930(a)’s application here. (providing only two paragraphs listing potential historical analogues without any analysis of how they are relevantly similar).

Mizelle herself did much more. Using USPS documents, she demonstrated that there has been a longstanding tradition of mail robberies and assaults; in a postal system itself of longstanding — pre-Revolutionary War — tradition. Yet never, until 1964 were firearms banned from any federal facility. The first specific post office gun ban was 1972. 18 U.S. Code § 930, the law under which Defendant Ayala was charged, didn’t come about until just 1988.

Mizelle took the government on a tour through American history, giving specific examples of the post office allowing clerks to arm themselves, and (again citing a USPS reference) “the Postmaster General armed railway mail clerks with “government-issued pistols” from World War I.” (emphasis in the original)

This is a lady who clearly read and understood Associate Justice Clarence Thomas’ BRUEN decision. In fact, in a conversation I mentioned that this decision reads like she was a Thomas protégé. Which prompted me to look up Judge Mizelle

She clerked for Clarence Thomas. I think he can be proud.

By the way, for those interested, Mizelle was the same federal judge who struck down the fed ChinCOVID mask mandates.

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Bump-Fire, Constitution, gun control, Law, Sellouts and traitors

That’s One Of My Conditions…

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… to ever even consider re-joining the Vichy NRA.

JUST IN: Wayne LaPierre Resigns as NRA Leader Days Before Trial Brought By NY AG Letitia James
On Friday Wayne LaPierre announced he will be resigning as the National Rifle Association’s (NRA) leader just days before his civil trial brought by New York Attorney General Letitia James begins.

That’s one. Well, actually two, now, since getting rid of Chris Cox was another of my conditions.

Seriously. Fire Wayne LaPierre. Chris Cox, too.

Then repudiate ERPOs and bump-fire bans. Apologize for opposing constitutional carry, for helping draft “assault weapons” bans, and endorsing obviously anti-human/civil rights politicians. Hell, apologize for supporting NFA ’34, GCA ’68, FOPA ’86, et cetera (it’s a long list).

And I’ll at least think about maybe joining.

I don’t expect them to actually apologize for all that, but then I expected E-Veep-For-Life LaPierre to die in office.

And it’s a minor thing, pertinent only to me, but I’d like them to either give me the magazine back issues I missed when they kept canceling my membership in the ’90s and sending me membership renewal notices, or refund me for the years of a five-year membership they disappeared. That and the city “assault weapon” ban that the NRA wrote were the final straws. It’s sort of a toss-up whether I quit or they canceled me again.

Well, his resignation is effective January 31. I guess we should watch to see how much more damage he can do on the way out.

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Academics, Elsewhere, Israel, Jewish history, Politics, So Much Stupid!

“Jesus Was Palestinian”

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That line has been getting quite a bit of play from historically ignorant pro-Hamas protesters in the US, as Christmas approaches. It’s just plain stupid, as Palestine didn’t exist back then. Romans applied the name to their imperial province around AD 132, after a failed Jewish rebellion. They picked the name (which derived from the Greek name for Philistines).

But, anachronism aside, let’s roll with it, and see the implications.

“Jesus was Palestinian.”

Jesus was a Jew residing in the region, descended from other of the many (majority, in fact) Jews long residing in the region.

Therefore, all Jews living in Israel (the bulk of the Roman Palestine) now are Palestinians.

And thus we come to the fact that, by these idiots’ standards, we already have a free Palestinian state.

“Free Palestine” has existed since 1948, when the British gave the Mandate of Palestine its independence. Job done; from the river to the sea. Happy now?

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authoritarian swine, Constitution, Courts, Law, Rights, SCOTUS, Terrorism

Precedent Can Be Dangerous

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Or even really dangerous, in the wrong hands.

For years, I’ve warned about the dangers of precedents; in laws, bureaucratic regulation, and judicial. My personal ball got rolling back inthe 1990s with the passage of the Communications Assistance for Law Enforcement Act. CALEA was passed to “help” LE catch criminals, by making it easier to tap phone calls.

The Communications Assistance for law Enforcement Act (CALEA) is a statute enacted by Congress in 1994 to require that telecommunications carriers and manufacturers of telecommunications equipment design their equipment, facilities, and services to ensure that they have the necessary surveillance capabilities to comply with legal requests for information. CALEA is intended to preserve the ability of law enforcement agencies to conduct electronic surveillance while protecting the privacy of information outside the scope of the investigation.

Sure. But it morphed into requiring the capability to monitor 10% of switch traffic at the same time; ten percent of all phones in the country. And remotely, so LE doesn’t even have to come to the switch office and physically tap a single line. It was expanded to include Internet traffic.

Then the PATRIOT Act to help catch terrorists.

What could possibly go wrong? Who could have foreseen that someone later would use those tools to monitor thousands of innocent Americans, or even spy on the opposition’s election campaign?

Well… “Who,” other than myself and thousands of other privacy advocates.

The Colorado Supreme Court just gave us a real doozy of a precedent: it just declared Donald Trump to be an “insurrectionist” ineligible to appear on the state primary ballot.

Love Trump or hate him (and I’m no great fan), the “reasoning” and “process” behind this decision is frightening; enough so that I’ll never travel to or through Colorado again.

The CO supreme court majority (there are three dissenters with some self-awareness) simply declared Trump to be guilty of insurrection. They deliberately and specifically denied the need for an actual charge of 18 U.S.C. § 2383 insurrection, a trial, evidence, or conviction. They specifically denied any requirement for Fifth Amendment due process. The accusation — in a civil case that Trump was not a party to — is all it takes for a life sentence of ineligibility to hold office or appear on a ballot.

Because Amendment 14, Section 3 is magically “self-executing.”

There is no Fifth Amendment in Colorado.

If this were to go to the US Supreme Court (and Trump says he’ll appeal), we might well learn there is no Fifth Amendment in the country.

But let’s look at the flip side of this insane precedent, under the almost-worst case scenario*:

Imagine down the road we end up with a hard-core right-wing administration; a Republican president perhaps, with as little respect for the whole Constitution as many current Republicans (don’t forget who saddled us with CALEA, PATRIOT, and bump-stock bans in the first place). Let’s say President Smith ran on a platform plank of doing something about the ATF, winning hearts and minds of American gun owners.

On the one hand, we have an agency whose specific job is to infringe on Second Amendment rights.

On the other hand, we have a precedent that says Constitutional amendments are automatically “self-executing,” and punishments for violation of the 2A don’t require indictment, trial, evidence, facing accusers, or defense. And one day, President Smith Tyrant simply send US Marshals to every ATF office in the country to round up every agent and employee, and drag their sorry asses off to the gulags, never to be heard from again.

Or… Federal Election Commission, meet the self-executing First Amendment.

You can probably think of one or two others that could use a dose of Constitutional self-execution.

So to speak.

* The worst case scenario would be SCOTUS making this a national precedent with the current administration, which proceed to rape the country faster and harder than it already is.

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Academics, Junk Science

Government “Research”

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I ran across an interesting paper this morning; “Chemistry and lung toxicity of particulate matter emitted from firearms.” It was published about a year ago, but I only just found it.

This came from the EPA, so I was expecting a real mess. But to my surprise the testing and analysis they did actually looks pretty good. The short version is that they captured “gun smoke” from the muzzle and breach, exposed mice to it, then did a fairly extensive chemical analysis of the particulate matter. They dissected the mice to see what effects occurred. All that was fine.

And then they blew it all on an unsupported, over generalized conclusion. A more accurate title would have been “Chemistry and lung toxicity of particulate matter emitted from one single type of cartridge in a specific model of rifle, and one single type of cartridge from a specific model of handgun.”

They began well with:

Abstract: “Smoke emissions produced by firearms contain hazardous chemicals, but little is known if their properties change depending on firearm and ammunition type and whether such changes affect toxicity outcomes.”

They acknowledged the existence of many types of ammunition and firearms, but only tested one handgun (“9 mm handgun (copper jacketed Pb slug)”) and one rifle (“M4 rifle using M855A1 ammunition”) combination. Based on that detailed but limited sampling, they somehow managed to draw a generalized conclusion about all handgun and rifle ammunition.

At least I’m guessing that that they used a single handgun/ammunition combination, since they didn’t specify the handgun model or ammunition type for that.

Conclusion: “We demonstrated that the handgun smoke PM caused no lung toxicity at 24 h post-exposure, while the rifle smoke PM at the same concentration showed strong toxicity (including injury, inflammation and decrements in lung function) following a single instillation exposure in association with the high level of Cu (26% of PM mass).

Sure; that’s what they found… for their extremely limited sample.

In the real world of ammunition…

Propellants vary. Single-based? Double-based? Is the powder ball type or extruded stick? What size? That all affects burn rate. How much propellant is in the case?

Projectiles vary: bullet diameter and mass. What is the bullet made of? Is it jacketed or unjacketed? Jacketed with what metal or alloy? Is it Teflon coated?

Primers: Small pistol? Large pistol? Small rifle? Large rifle? Shotshell? Large shot shell? What chemical composition?

Of course, there’s always muzzleloaders: black powder or Pyrodex?

In the real world of firearms, we see more differences which will affect the ejected particulates.

Rifling type: land/groove rifling will abraded the bullet more than orthogonal rifling. A faster twist will cause more abrasion than a slow twist. Then, of course, there are smooth-bore shotguns.

Barrel length matters, too. Longer barrel, more projectile wear.

While the research really only addressed toxicity, I’ll note that “The dose makes the poison.” They trapped the smoke from a barrel and breach, then exposed the mice to all of that. In the real world, more factors yet affect the shooter’s exposure.

A longer barrel rather obviously puts more of the smoke farther away from the shooter behind the gun. How tightly the breech seals affects how much of the smoke is channeled back towards the shooter. And the use of a silencer/suppressor will raise that back pressure (while limiting what goes out the barrel end).

Then we move to other barrel attachments. In a plain barrel, the smoke ejects 360 degrees as the bullet exists the barrel. But add a flash suppressor and the blast is directed forward, away from the shooter.

But a muzzle brake/compensator will tend to channel some of the muzzle blast back towards the shooter; even more so than an unadorned barrel.

As a shooter, my greatest personal environmental concern is lead exposure in an indoor range. Bullets impacting the backstop fragment and generate lead dust. That’s why indoor ranges have very good ventilation systems. Beyond that, I wash my hands after shooting and before handling food.

The testing and analysis they did was quite good, as far as it went. But it was far too limited to warrant general conclusions about “handguns” and “rifles,” much less all “firearms.”

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authoritarian swine, gun control, Law, So Much Stupid!, You can't fix stupid

Idiocy Repeats Itself

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Senator Markey [Dumb@ss-MA] filed a bill earlier this year. I missed it until now: S.1819 – 3D Printed Gun Safety Act of 2023.

This bill purports to ban the distribution of 3D-printer files used to build firearms.

Purports.

“(aa) It shall be unlawful for any person to intentionally distribute, over the internet or by means of the World Wide Web, digital instructions in the form of Computer Aided Design files or other code that can automatically program a 3-dimensional printer or similar device to produce a firearm or complete a firearm…

Now if he’d just left it at that, he’d merely be a constitutional idiot. But let’s look at the rest of that sentence

to produce a firearm or complete a firearm from an unfinished frame or receiver.”.

Yes, Markey still thinks 3D additive manufacturing printers start with unfinished frame/receivers.

Still? Perhaps you’ve gotten a sense of deja vu. Markey rode this short bus two years ago.

“(aa) It shall be unlawful for any person to intentionally distribute, over the internet or by means of the World Wide Web, digital instructions in the form of Computer Aided Design files or other code that can automatically program a 3-dimensional printer or similar device to produce a firearm or complete a firearm from an unfinished frame or receiver.”.

Look familiar? Two years on, and he still can’t figure out the difference between additive 3D-printing and subtractive CNC machining (like a Ghost Gunner mill that does complete unfinished frames/receivers).

Or maybe it’s idiocy with a large dose of insanity.

You know, if Markey — his staffers, rather — followed opposition sites like The Zelman Partisans perhaps he’d figure out just why his bill cannot do what it purports, even if it magically passed into law. But I give this attempt no better odds than S. 2319, which whimpered and died in committee.

And yes, I still giggle at this part.

over the internet or by means of the World Wide Web

I still haven’t found a “World Wide Web” that does not operate over the Internet.

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