Category Archives: Firearm

“If I am a suspect, then I want an attorney.” Clear Or Unclear Request For Counsel?

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Photo Courtesy of CCSNLUJ

In State v. Gardner, the WA Court of Appeals held that if a suspect makes an unequivocal request for an attorney predicated on a condition (here, “if I am a suspect, then I want an attorney”) it is a conditional invocation which the police must respect and the interrogation must cease pursuant to Miranda.

FACTUAL BACKGROUND

Mr. Gardner was a suspect in a homicide. He was contacted by police. They handcuffed Gardner, placed in the back of a patrol vehicle, and read his Miranda rights.  Gardner told a detective that if he was a suspect, he wanted an attorney. Although police admitted that Gardner was a suspect at the time he made this statement, they did not end the interrogation or provide Gardner with an attorney.

At trial, the judge denied Gardner’s motion to suppress evidence from the subsequent interrogation and concluded that Gardner’s request for an attorney was equivocal. As a result, Gardner’s recorded interview was admitted as evidence. He was found guilty of first degree murder, second degree assault, first degree unlawful possession of a firearm, and felony harassment.

On appeal, Mr. Gardner argues that the trial court violated his Fifth Amendment rights when it denied his motion to suppress his interview because detectives continued questioning him after he unequivocally requested counsel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals (COA) agreed with Mr. Gardner:

“Gardner’s request for an attorney was conditional, not equivocal. Since law enforcement knew that the condition was met, they should have ceased the interrogation until Gardner was provided an attorney or reinitiated contact.” ~WA Court of Appeals

The Court reasoned that the Fifth Amendment protects against self-incrimination. Accordingly, law enforcement officers are required to give Miranda warnings where an individual is subjected to custodial interrogation. Prior to being subjected to custodial interrogation, Miranda requires that an individual must be informed of their right to remain silent and their right to an attorney. If a suspect requests an attorney, law enforcement must stop all questioning until an attorney has been provided or the suspect reinitiates talking on their own.

However, once a suspect waives his Miranda rights, only an unequivocal request for an attorney requires law enforcement to cease questioning. The request for counsel must be sufficiently clear that a reasonable officer would know that Miranda has been invoked.  Conversely, a request that is ambiguous or equivocal, such that a reasonable officer under the circumstances would understand that the suspect might be interested in obtaining an attorney, does not require the officer to cease questioning.

Under that analysis, the COA issued its ruling:

“Here, Gardner told law enforcement that if he was a suspect, he wanted an attorney when he was taken in for questioning on June 13. Gardner was in fact a suspect at that point. This was a conditional request—if this, then that. There was nothing ambiguous about this request. Gardner was unsure whether he was a suspect, but if he was, he wanted an attorney. Law enforcement knew that the condition had been met because they knew that Gardner was a suspect. Because law enforcement knew that the condition had been met, Gardner’s statement was a clear invocation of his right to counsel.” ~WA Court of Appeals

The COA further conclude that the State failed to meet its burden of showing that the constitutional error was harmless beyond a reasonable doubt. Thus, the COA reversed Mr. Gardner’s guilty convictions and remanded his case for a new trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Allah: Probationer’s Right Against Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Firearm, Mount Vernon Criminal Defense Attorney, Probation, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

In State v. Allah, the WA Court of Appeals held a probationer’s vehicle was unlawfully searched and seized during a traffic stop. His prior criminal history, gang affiliations and geographic boundary  restrictions did not establish a sufficient nexus for a warrantless search.

FACTUAL BACKGROUND

In October 2020, Mr. Allah was on probation for a 2017 firearm conviction. He was driving his car in the Central District of Seattle, when a police officer pulled him over on suspicion of driving with a suspended license. After learning of Allah’s probationary status, the officer contacted the Department of Corrections (DOC). The Officer requested a Community Corrections Officer (CCO) arrive at the scene to discuss next steps.

While he was on his way to the scene, the CCO reviewed Allah’s prior conditions of community custody. The CCO noted Allah was in violation of a geographic boundary condition, which excluded him from the Central District. The geographic restriction  was in place because Allah was in a gang associated with the Central District.

Upon arriving at the scene, the CCO talked with Allah and then searched the car, specifically for a firearm. The CCO located a firearm on the floorboard underneath the driver’s seat. He collected the firearm as evidence and arrested Allah.

The State charged Allah with a Firearm Offense because his prior convictions barred him from possessing firearms. Allah moved to suppress the firearm evidence from the CCO’s search under a CrR 3.6 Motion. Allah argued there was an insufficient nexus between the search and Allah’s geographic violation. The judge denied Allah’s 3.6 Motion.

In December 2022, a jury convicted Allah as charged.  Allah appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) established that the Washington Constitution provides a robust privacy right; stating that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” That said, warrantless seizures are per se unreasonable and subject to limited exceptions. The State has the burden of proving a warrantless search falls within an exception.

THE COA further established that parolees and probationers have diminished privacy rights. This is because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. As such, a probationer may be searched on the basis of a wellfounded or reasonable suspicion of a probation violation rather than a warrant supported by probable cause.

Even with probationer’s diminished privacy rights, however, the Washington Constitution permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.

“Permitting searches without a nexus would allow fishing expeditions to discover evidence of other crimes, past or present. After all, if a prior conviction, not to mention a prior arrest, should afford grounds for believing that an individual is engaging in criminal activity at any given time thereafter, that person would never be free of harassment, no matter how completely he had reformed.” ~WA Court of Appeals

The COA’s Rationale On “Sufficient Nexus”

The COA further surmised that even when there is a nexus between the property searched and the suspected probation violation, an individual’s reduced privacy interest is safeguarded in two ways. First, a CCO must have reasonable cause to believe’ a probation violation has occurred before conducting a search at the expense of the individual’s privacy. Second, the individual’s privacy interest is diminished only to the extent necessary for the State to monitor compliance with the particular probation condition that gave rise to the search. The individual’s other property, which has no nexus to the suspected violation, remains free from search.

In sum, neither CCO or the State provide a sufficient explanation of why any person would reasonably believe Allah may have had a weapon immediately preceding the search. No matter how the constitutionality of the search is conceptualized—i.e., whether as requiring a nexus between the boundary violation and the vehicle searched, or as simply requiring reasonable suspicion—the logical gap remains.

As to the geographic boundary, CCO admitted it was irrelevant to his decision to search. As to Allah’s prior firearm conviction, our Supreme Court has long explained that a probationer’s past convictions alone are not enough to support a search. Otherwise, a probationer “would never be free of harassment, no matter how completely he had reformed.”

With that, the COA reversed the lower court’s denial of Allah’s CrR 3.6 motion to suppress the firearm evidence. The COA also reversed Allah’s conviction, and remanded the matter to the lower court for future proceedings.

Please review my Search and Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA Ranks Low In States With Road Rage

Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Reckless Driving, Reckless Endangerment, Road Rage, Skagit County Criminal Defense, Studies, Uncategorized, Whatcom County Criminal Defense, , , , ,

A person driving.

A recent study from H&P Law ranks Washington among states with the least amount of road rage. The firm used data from The Trace and the NHTSA’s Fatality Analysis Reporting System to rank states by most common road rage incidents. Washingtonians can consider themselves lucky – the Evergreen State falls in the bottom ten for reported or documented road rage incidents.

THE REPORT

The report ranks all 50 states utilizing analysis of six key factors. Data points used include the number of firearm-related incidents, the percentage of crashes involving aggressive or careless driving, the number of accidents with fatalities, the total number of deaths from crashes involving aggressive or careless driving, the percentage of incidents involving aggressive or careless driving that resulted in a fatality, and speeding violations, at varying weights.

Washington ranks 44 of 50, making it one of the states with the fewest road rage incidents. Rhode Island was ranked the best. The study ranked the least road rage prone states in the bottom ten as: Iowa South Dakota, Wyoming, Washington, Massachusetts, New York, New Hampshire, Virginia, California, Rhode Island.

WHAT MADE WASHINGTON’S SCORE SO LOW?

The Evergreen State has a low rate of firearm-related road rage incidents, at 1.5 per 100,000 residents. Less than 28% of the state’s car crashes involve aggressive or careless driving, according to the study. Washington experiences 2.5 fatal crashes due to aggressive driving per 100,000 residents, and a low number of speeding violations compared to other states.

WHICH STATES HAVE MOST ROAD RAGE?

According to the report, the states with the most road rage are:

  • Louisiana
  • New Mexico
  • Montana
  • Arkansas
  • Colorado
  • North Carolina
  • Delaware
  • Florida
  • Wisconsin
  • Tennessee

At some point in every driver’s life, they’ll inevitably experience road rage. Whether it’s screaming vulgarities, the middle finger, tailgating or aggression, being on the receiving end of road rage is jarring, and potentially dangerous.

Please contact my office if you, a friend or family member are charged with Reckless Driving, Reckless Endangerment, Firearm Offenses or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

U.S. Supreme Court Upholds Domestic Violence Gun Ban

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Supreme Court upholds federal gun ban for those under domestic violence restraining orders | Fox News

In United States v. Rahimi, the U.S. Supreme Court handed down its most significant gun control ruling in two years. It upheld a federal law that bars people who are the subject of domestic violence restraining orders from owning weapons.

With conservatives and liberals joining the 8-1 majority, the decision was a major win for gun safety groups and victims of domestic violence. It limited a controversial standard the high court’s conservatives had set down in 2022 that required gun prohibitions to have a connection to history to survive constitutional scrutiny.

The case centered on a 1994 law that bars people who are the subject of domestic violence restraining orders from possessing guns. A Texas man, Zackey Rahimi, was convicted for violating that law following a series of shootings.

SUPREME COURT’S PRECEDENT ON GUN CONTROL 

Two years ago, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court said that to survive a challenge, gun laws must have some connection to the nation’s history and tradition.

In Bruen, Justice Thomas wrote on behalf of the Supreme Court’s majority as the court charted a new approach to the Second Amendment. The sweeping “history and tradition test” Thomas put forth in that opinion declared that modern gun-control laws are invalid unless similar restrictions existed in early American history.

Unfortunately, Justice Thomas’s opinion in Bruen sent lower federal courts dumbfounded on whether modern gun laws had some connection to the 18th Century.

RAHIMI ADDRESSES THE CONFUSING PRECEDENT CREATED BY BRUEN.

Chief Justice John Roberts, who wrote Rahimi’s majority opinion, sought to minimize the Court’s disagreements with Justice Thomas, who was the lone dissenter (and wrote Bruen, remember). However, not all the justices were so restrained, with two calling Thomas’ approach “useless.”

Justice Amy Coney Barrett, a conservative who has been raising concerns about the Supreme Court’s approach on history in recent cases, penned a brief concurrence criticizing how some lower courts were looking for near-identical historical gun laws when examining modern regulations.

“Imposing a test that demands overly specific analogues has serious problems. It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’” ~Justice Barrett

Please contact my office if you, a friend or family member are charged with Domestic Violence, a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

U.S. Supreme Court to Decide Influential Criminal Cases

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In Death Penalty Cases, a Texas Court Tests the Supreme Court's Patience - The New York Times

The Associated Press reports the Supreme Court is headed into its final few weeks with nearly half of the cases heard this year still undecided. Some of the criminal cases are quite influential, including ones that could reshape the law on Obstructing, Firearms Offenses and Domestic Violence cases.

Here’s a look at some of the major undecided cases:

Jan. 6, 2021 Riots

A former Pennsylvania police officer is challenging the validity of obstruction charges brought against hundreds of people who took part in the violent assault on the Capitol on Jan. 6, 2021. Former President Donald Trump faces the same charge of obstructing an official proceeding.

The legal issue is whether a law meant to discourage tampering with documents sought in investigations can be used against the Capitol rioters.

The federal charge of Obstruction of an Official Proceeding carries up to 20 years behind bars. It is among the most widely used felony charges in the Jan. 6 cases. It has been brought against extremists accused of plotting to stop the transfer of presidential power from Republican Donald Trump to Democrat Joe Biden as well as in dozens of less serious cases.

Guns & Domestic Violence

The justices are weighing whether to uphold a federal law that seeks to protect Domestic Violence victims by keeping guns away from the people alleged to have abused them.

The case, United States v. Rahimi, made its way up to the Supreme Court after the Biden administration asked the justices to review a decision earlier this year by the U.S. Court of Appeals for the 5th Circuit that struck down a federal law that bars people under domestic violence orders from having firearms.

An appeals court struck down a law that prohibits people under domestic violence restraining orders from possessing firearms. That court found that the law violated the 2nd Amendment right to “keep and bear arms” following the Supreme Court’s 2022 ruling that expanded gun rights and changed how courts are supposed to evaluate gun restrictions.

Homelessness

The most significant Supreme Court case in decades on homelessness centers on whether people can be banned from sleeping outdoors when shelter space is lacking.

A San Francisco-based appeals court decision said that amounts to cruel and unusual punishment. Leaders from California and across the West say that the ruling makes it harder for them to regulate homeless encampments encroaching on sidewalks and other public places. Advocates say it would criminalize homelessness just as rising costs have pushed the number of people without a permanent place to live to record levels.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

U.S. Supreme Court Declares Unlawful a Federal Ban on “Bump Stock” Devices

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FILE - Shooting instructor Frankie McRae demonstrates the grip on an AR-15 rifle fitted with a "bump stock" at his 37 PSR Gun Club in Bunnlevel, N.C., on Oct. 4, 2017. Gun accessories known as bump stocks hit the market more than a decade ago. The U.S. government initially concluded that the devices that make semi-automatic weapons fire faster didn't violate a federal ban on machine guns. That changed after a gunman with bump stock-equipped rifles killed 60 people and wounded hundreds in Las Vegas in 2017. (AP Photo/Allen G. Breed, File)

AP Photo/Allen G. Breed

In Garland v. Cargill, the U.S. Supreme Court has struck down a Trump-era regulation that effectively banned bump stocks. These aftermarket accessories make semiautomatic rifles fire more like machine guns. The devices were used in the deadliest mass shooting in American history.

A majority of the justices reasoned that the definition of machine gun in federal law does not apply to bump stocks. As a result, the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority to regulate them, the court ruled.

“A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does.” ~U.S. Supreme Court Justice Clarence Thomas.

Semiautomatic weapons, which fire one bullet per trigger pull, are legal and don’t need to be registered with the federal government. When a bump stock is employed, it uses a semiautomatic’s natural recoil to quickly re-engage the trigger as long as the shooter maintains pressure. That enables an increased rate of fire — one that can nearly match that of a machine gun.

The court’s liberal justices signed onto a dissent penned by Justice Sonia Sotomayor, which panned the majority’s reasoning:

“This is not a hard case. All of the textual evidence points to the same interpretation. A bump-stock-equipped semiautomatic rifle is a machinegun because (1) with a single pull of the trigger, a shooter can (2) fire continuous shots without any human input beyond maintaining forward pressure.” ~U.S. Supreme Court Justice Sonia Sotomayor.

ARE BUMP STOCKS NOW LEGAL IN WASHINGTON STATE?

No. Garland v. Cargill narrowly applies only to the ATF’s rulemaking authority and interpretation of federal statutes. Therefore, Washington’s ban on bump stocks shall remain in effect. Also, it is still a Class A felony in WA State to possess a bump-stocked firearm in the commission of a felony. Washington State joins 16 other states and the District of Columbia in preserving their bump stock bans.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Going Pro-Se: Should You Represent Yourself In Court?

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Is the law library a thing of the past for law firms?

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In State v. Gwin, the WA Court of Appeals decided an interesting case of a defendant who wanted to represent himself pro se.

BACKGROUND FACTS

Mr. Gwin was charged with unlawful possession of a firearm in the first degree, felony harassment, and possession of heroin with intent to deliver. At trial, Mr. Gwin exercised his right to self-representation. The court conducted a colloquy and determined that Gwin knowingly, intelligently, and voluntarily waived his right to counsel. The court granted Gwin’s motion to represent himself, and Gwin completed a waiver of counsel. However, the trial court denied his request for standby counsel, citing its blanket policy to deny such requests.

Gwin opted for a bench trial, waiving his right to a jury. The court found Gwin guilty of unlawful possession of a firearm in the first degree and felony harassment. Gwin was acquitted of possession of heroin with intent to deliver. On appeal, Gwin argued the court’s categorical denial of his request for standby counsel violated his right to represent himself under Washington Constitution article I, section 22.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying the Sixth and Fourteenth Amendments of the United States Constitution afford a criminal defendant both the right to (1) assistance of counsel and the right to (2) reject that assistance and to represent himself. While both are guaranteed, the right to proceed pro se and the right to assistance of counsel are mutually exclusive.

“Self-representation is a grave undertaking, one not to be encouraged. Its consequences, which often work to the defendant’s detriment, must nevertheless be borne by the defendant . . . The federal right to self-representation does not include a right to standby counsel or hybrid representation.” ~WA Court of Appeals

The COA addressed Mr. Gwin’s argument that the trial court’s refusal to appoint standby counsel violated his rights.

Because there is no constitutional right to standby counsel, the court’s failure to consider Gwin’s request is not of constitutional magnitude and is subject to analysis under the nonconstitutional harmless error standard. Under this nonconstitutional harmless error standard, ‘an accused cannot avail himself of error as a ground for reversal unless it has been prejudicial An error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.

From there, the COA made a very clear record of Mr. Gwin’s self-representation and largely disagreed with his arguments:

“While standby counsel may have improved contact with defense witnesses and led to more success in impeaching State witnesses, Gwin has not demonstrated that the outcome of the trial would have been materially affected. Thus, the trial court’s failure to meaningfully consider Gwin’s request for standby counsel was harmless error.” ~WA Court of Appeals.

With that, the COA upheld his convictions.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Washington State’s High-Capacity Magazine Ban Will Remain In Effect For Now

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Ban on high-capacity gun magazines very popular with Washingtonians, NPI poll finds - NPI's Cascadia Advocate

Visualization of NPI’s poll finding on Senate Bill 5078

Last week, a state Supreme Court commissioner ordered that Washington state’s high-capacity magazine ban will remain in effect. This decision comes while a legal challenge against the new law remains pending in the courts.

Washington’s law banning high-capacity magazines has been the subject of several legal actions in recent weeks.

PROCEDURAL HISTORY

The high-capacity magazine ban was first overturned by a Cowlitz County Judge Gary Bashor. Earlier this month, he ruled the state’s ban on high-capacity magazines unconstitutional in a lawsuit between Washington State and Gators Customs Guns, a firearms dealer in Kelso.

Judge Bashor’s ruling imposed an injunction on the law for a short time. This meant the ban was effectively overturned in the state of Washington. Immediately after Judge Bashor’s ruling, firearms retailers around the state resumed the sale of high-capacity magazines.

Within 90 minutes, Supreme Court Commissioner Michael E. Johnston granted the Washington State Attorney General’s Office a temporary stay on that injunction. This ruling effectively put the high-capacity magazine ban back into effect. So far, the decision kept the stay in place. It will remain so while the legal challenges against the high-capacity magazine ban are being decided.

Commissioner Johnston ruled that those in opposition of the law “failed to persuasively show” that the ban should be overturned while the ultimate legality of the law is decided. The commissioner also considered the potential harms that could come from lifting the stay and allowing the magazines to be sold in the meantime.

WASHINGTON’S BAN ON HIGH-CAPACITY MAGAZINES

Washington’s ban on high-capacity magazines first went into effect on July 1, 2022. The ban prohibits the sale of gun magazines with a capacity of more than 10 rounds, along with the manufacturing, distribution or import of high-capacity magazines in Washington state.

The bill does not criminalize the possession of high-capacity magazines but instead focuses on the suppliers. Violating the law could result in a gross misdemeanor.

In September of 2023, the Washington AG’s office filed a lawsuit against Gator’s Custom Guns for continuing to sell high-capacity magazines. In response, the gun store owner challenged the law in court.

Other lawsuits have been filed regarding this legislation. In December 2022, Ferguson also filed a lawsuit against a gun store in Federal Way for selling high-capacity magazines after the ban went into effect months before. As a result, the store was ordered to pay $3 million for the illegal sale.

Please contact my office if you, a friend or family member are charged with Firearm Offenses or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

9th Circuit Federal Court: Gun Prohibitions on Defendants Are “Historical Tradition of Firearms Regulation.”

9th Circuit Court of Appeals, Bellingham Defense Attorney, Federal Crimes & Prosecutions, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

13 Tips Whenever Cops Want to See Your Guns! - YouTube

In United States v. Garcia, the 9th Circuit Court of Appeals held that pretrial release conditions forbidding a defendant from possessing firearms are consistent with the nation’s historical tradition of firearms regulation.

BACKGROUND FACTS

Mr. Fencl was arrested after police officers found more than 110 guns in his house, including 10 unregistered and untraceable “ghost guns,” 4 silencers, and 3 short-barreled rifles. Officers also uncovered thousands of rounds of ammunition, including armor-piercing and incendiary rounds and a tear-gas grenade.

In a different case, Mr. Perez-Garcia was arrested following a customs inspection at the United States-Mexico border. He was the passenger in a car in which officers found approximately eleven kilograms of methamphetamine and half a kilogram of fentanyl.

Both men were charged with multiple felony offenses. Consistent with the Bail Reform Act of 1984, two federal magistrate judges released Fencl and Perez-Garcia pending their trials. However, both were subjected them to a condition of pretrial release that temporarily barred them from possessing firearms pending trial. The magistrate judges concluded that the firearm condition was the least restrictive way to assure the safety of the community and the defendants’ appearances in court.

On appeal, Fencl and Perez-Garcia contend that the pretrial firearm condition violated their Second Amendment rights. They believe they were unlawfully  prohibited from possessing guns while they are released pending trial.

9TH CIRCUIT’S REASONING AND CONCLUSIONS

In short, the 9th Circuit upheld the appellants’ temporary disarmament as consistent with our nation’s historical tradition of firearm regulation.

The 9th Circuit reasoned that Congress passed the Bail Reform Act of 1984 to respond to the alarming problem of crimes committed by persons on release. The Act authorizes federal courts to release defendants awaiting trial subject to specific conditions that protect the community from the risk of crimes they might commit while on bail. Courts have discretion to choose which conditions will best keep the community safe. Furthermore, some conditions that are necessary to keep the community safe nevertheless burden constitutional rights.

“Bail Reform Act’s firearm condition on Appelants is justified by our nation’s history of disarming criminal defendants facing serious charges pending trial. Based on our historical review, we agree that our society has traditionally subjected criminal defendants to temporary restrictions on their liberty—including restrictions that affect their ability to keep and bear arms—to protect public safety and to ensure defendants’ attendance at trial. As we explain below, the combination of separate but related founding era practices supports this conclusion: (1) most serious crimes were eligible for capital charges; (2) the government had the power to detain, and usually did detain, defendants indicted on capital charges; and (3) once detained, criminal defendants were completely disarmed. The Bail Reform Act’s firearm condition as applied to Fencl and Perez-Garcia fits within this historical tradition of firearm regulation.” ~9th Circuit Court of Appeals

Next, the 9th Circuit explained that during the Founding Era, most serious criminal acts and felonies constituted capital offenses. As a result, defendants indicted on capital offenses were typically detained without bail, effectively disarming them.

With that, the 9th Circuit concluded that the Bail Reform Act’s pretrial release firearm condition as applied to Appellants was relevantly similar to the founding era tradition of disarming criminal defendants facing serious crimes.

My opinion? Often in my criminal practice I see lots in incidents involving guns. Clients ask  whether police can seize their firearms if a crime is pending. And what about situations where there was an incident, but no gun was involved? The short answer is yes, police can seize firearms and other weapons under these circumstances. This often happens in allegations involving Domestic Violence and felonies. However, there needs to be an order issued from a judge.

Please contact my office if you, a friend or family member face crimes prohibiting the possession of firearms. Hiring an effective and competent defense attorney is the first and best step toward justice.

Citing “Aloha Spirit,” Hawaii Bans Open Carry of Firearms Without a Permit

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Guns.com Hawaiian Shirt - For Sale :: Guns.com

According to The Guardian, the Hawaii’i Supreme Court, citing the state’s “Spirit of Aloha”, has ruled that a person can be prosecuted for carrying a gun in public without a permit. This decision comes in an apparent rebuke to the US Supreme Court’s efforts to expand gun rights.

In State of Hawaii v Christopher Wilson, state supreme court of Hawaii reviewed a 2017 case against Christopher Wilson, who had an unregistered, loaded pistol in his front waistband when police were called after a Maui landowner reported seeing a group of men on his property at night. The court denied the man’s request to dismiss weapons possession charges on grounds that they violated a right to bear arms enshrined in the US constitution in 1791.

“The spirit of aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities . . . The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.” ~Justice Todd Eddins, Hawaii Supreme Court

WHAT IS THE “SPIRIT OF ALOHA?”

Under 1986’s Hawaiian Spirit Law, the state mandates that state officials and judges treat the public with “aloha spirit.” In short, this ethos is described as the coordination of the heart and mind to foster connectivity and peace that calls for contemplation and presence of five life-force traits: “akahai” (kindness, expressed with tenderness); “lōkahi” (unity, expressed with harmony); “oluʻolu” (agreeableness, expressed with pleasantness); “haʻahaʻa” (humility, expressed with modesty); and “ahonui’” (patience, expressed with perseverance).

The Wilson case has been winding its way through the court system, with the plaintiff claiming that he had legally purchased the weapon in Florida in 2013. But Wilson had not registered the gun in Hawaii, which has some of the nation’s strictest gun laws, and had not obtained or applied for a permit. The case made its way to the state’s supreme court after the US supreme court further relaxed restrictions on gun ownership via the New York State Rifle & Pistol Association v Bruen case in 2022.

The ruling does not throw out the concept of the right to bear firearms.  Rather it establishes that states may retain the authority to require people to obtain a permit for their firearm before they may carry it in public.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.