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Friday Roundup

Gun rights update.  A few months back, I highlighted a common pleas decision here dismissing a weapons under disability charge in a case.  The disability had been based on a 1991 misdemeanor marijuana conviction, and the court ruled that disqualifying the defendant from owning a gun on that basis violated his Second Amendment right to bear arms for self-defense, under the Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago

That's one of the few decisions to strike down a disability law, but the 3rd Circuit came close last week in US v. Barton.   Most notable is the court's treatment of the language in Heller and McDonald that certain limitations on gun rights, such as "longstanding prohibitions on the possession of firearms by felons," are "presumptively lawful."  Some courts have treated this as mere dicta, but the 3rd disagreed; on the other hand, "presumptively lawful" means the presumption can be rebutted, and Barton could therefore mount an "as applied" challenge to the law.  To do that,

Barton must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections.  For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen.  Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.

Barton didn't have those facts:  he'd been convicted of cocaine trafficking, and his self-defense claim -- on a charge of illegally selling firearms -- was somewhat muddied by the fact that the cops found seven pistols, five rifles, and three shotguns when they raided his house.

The problem with arguing Barton, of course, is the outcome:  you'd essentially be using a case which goes against you to support your position.  How you spin cases, on the other hand, is the art of appellate law, and Barton, especially in its analysis of some of the history of weapons disability laws, is of some assistance where, at least at present, very little can be found.

Dog update.  Last week I talked about canine searches, highlighting some arguments that dogs sniffs for narcotics aren't as accurate as a lot of people think they are, especially the "lot of people" on trial and appellate benches who decide the constitutionality of searches initiated by dog alerts.  The problem, as I mentioned then, was that we're only talking about probable cause.  So what if a dog gives false positives twenty, thirty, or even fifty percent of the time?  That's still more than sufficient to meet the probable cause threshhold.

Well, maybe not.  Ever hear of Bayes Theorem?  Some lawyers who had presented a paper and a sample brief on the subject to the Wisconsin State Public Defender's Annual Convention five years ago had, and you can read it here.  The very, very short version is that the Theorem addresses "conditional probability":  the probability of a certain event occurring as you introduce more data.  For example, let's say you have a test that is 98% effective in detecting a particular disease.  But what if it's a rare disease, occurring in only one person in a thousand?  That means if you test 1,000 people, 20 of them (two percent) will test positive, while only 1 has the disease.  In other words, 19 of the 20 people have been falsely diagnosed, meaning you've actually got an error rate of 95%.

The paper and brief use that Theorem with drug-sniffing dogs, but introduce another factor into the mix:  how many cars actually have drugs.  Assuming it's a low level -- maybe one in 50 or 100 -- you can show that even with a dog whose alerts were substantiated over 88% of the time, the probability that an alert means there are actually drugs in the car is less than 13%.

At least that's what the brief and paper say.  For your next case involving dogs and drugs, you can copy the appropriate sections, insert your facts, and submit your own brief on the whole thing.  This will have one of two effects:

  • The prosecutor and the judge will be so confused by this, but so impressed by the belief that you have the necessary brainpower to understand it, that they will offer you the plea bargain you want
  • They will laugh at you and call you names, and possibly even give you a wedgie for being such a nerd

Memory Lane.  Even an attorney who hasn't seen the inside of a law school for thirty years can tell you the facts of Palsgraf v. Long Island RR Co.  Mrs. Palsgraf was standing on a train station, minding her own business, when some thirty feet away two train guards helped a man carrying a small package board the train.  They did a shoddy job of it, and he dropped the package.  It contained fireworks, which exploded, causing scales at Mrs. Palsgraf's end of the platform to fall and strike her, causing her injuries.  The question was the foreseeability of the harm:  could the railroad guards have reasonably foreseen that anything they did with the passenger could harm Mrs. Palsgraf?  The New York Court of Appeals, in an opinion by Benjamin Cardozo, said no in 1928, and ever since then, generations of law students have sat mutely while their Torts prof droned on about the case.

Apparently, Palsgraf wasn't part of the curriculum at the law school attended by the attorney of the estate of Roger Kreutz.  Kreutz, 54 at the time, was in a Starbucks coffee shop on March 3, 2008, when he saw a teenager snatch the tip jar from the counter.  Kreutz gave chase, but when the thief backed his car out of the parking space, he knocked Kruetz to the pavement.  Kruetz died two days later of head injuries, and the thief did a year in jail after pleading to involuntary manslaughter.

So on Tuesday Kruetz's estate filed suit.  Against Starbucks.  After all, they should have known that by placing a tip jar on an open counter, they ran the risk that (a) someone would steal the tip jar, (b) a customer would pursue the thief, and (c) be injured or killed in that pursuit.

I'm pretty sure I know how Benjamin Cardozo would have ruled.


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