Gun rights update update. On Monday, I mentioned a 2nd District decision affirming a conviction of weapons under disability, where the disability was -- the horror! the horror! -- a minor misdemeanor conviction for possession of marijuana. I was especially critical of the court's failure to even address the 2nd Amendment issue raised in the appeal: whether a conviction of a minor misdemeanor offense created a sufficient interest for the government to forever deny someone his right to bear arms, a right established as fundamental by the Supreme Court's decisions over the past two years in DC v. Heller and McDonald v. Chicago.
Undoubtedly to their great relief, I won't have the 2nd District to kick around on this any more. Or any other court, for that matter. While HB 86 has gotten most of the attention, the legislature also passed HB 54, which revises 2923.13 and 2929.14, the statutes on weapons under disability and obtaining relief from disability. The major change in the bills is to provide that only a felony drug offense creates the disability. It takes effect on September 30, same as HB 86.
But there's an interesting twist on this. Back in January, I wrote about a case here in Cuyahoga County where the judge dismissed a weapons under disability charge which had been based on a misdemeanor marijuana conviction. (In that case, attempting trafficking, a 1st degree misdemeanor.) That case is up on appeal, and one of the main issues will be determining whether the State has an interest in disqualifying a person from owning a gun based on a misdemeanor conviction, sufficient to override that person's 2nd Amendment rights. Couldn't the argument be made that HB 54 is an expression of legislative intent acknowledging that the State doesn't have an interest in disqualifying a person from owning a gun based for a drug conviction unless that conviction is for a felony? Stay tuned.
Now that's strict liability. Up until 2002, Florida law provided that a person was guilty of a drug offense if he was "in actual or constructive possession of a controlled substance." That year, the state supreme court was called upon to interpret the law, and decided that although it didn't mention any mens rea, the legislature had intended to prohibit the knowing possession of contraband. Not so fast, said the legislature: it promptly amended the law to provide that "knowledge of the illict nature of a controlled substance is not an element of any offense under this chapter," and imposing upon the defendant the burden of proving, as an affirmative defense, that he didn't know he was in "actual or constructive" possession of the drugs.
On Wednesday, a Federal district judge tossed this on a habeas petition, finding that the imposition of strict liability under these circumstances was a violation of due process. (The opinion, which you can find here, is a good read for determining when a legislature can impose strict liability for a criminal offense.) The opinion noted that under the law as written, a Fed Ex driver could be prosecuted for delivering a package which contained drugs, even though he had no idea what the contents were.
Now that's soft on crime. Your client's just been convicted, and the judge rejects your pleas for leniency and sends him off to prison. No, not to Mansfield Correctional, a place where your first visit elicits the reaction, "So that's what razor wire is." No, this is a prison set on 75 acres of idyllic woodland, where your client's cell features a flat-screen TV, a minifridge, and designer furniture. He can take advantage of the jogging paths and sound studio on the site, or play various games with the guards, none of whom are armed. In fact, half of them are women, since studies show that the presence of women creates a less aggressive atmosphere. And speaking of women, should your client's wife and children decide to visit him, they can stay with him overnight in the two-bedroom house on the grounds.
No, your client won't be going there, but Anders Behring Breivik, who just killed 76 people in Norway this past weekend, will be. When the prison opened last year, the governor explained, "In the Norwegian prison system, there's a focus on human rights and respect. We want to build them up, give them confidence through education and work and have them leave as better people."
Then again, maybe it works; only about 20% of Norwegian offenders wind up back in prison within two years, far below our own rate of recidivism. Which I don't understand at all. If they built a prison like that here in Ohio, you'd have to stand in line to rob a convenient store.
Oh, by the way, it looks like the most that Breivik can get for what he did is 21 years.
It's a dog's world. Which is dumber? (A) Going up to a police dog who's sitting in a cruiser and barking and hissing at him; (B) Prosecuting someone for going up to a police dog who's sitting in a cruiser and barking and hissing at him; (C) Defending against a charge of going up to a police dog who's sitting in a cruiser and barking and hissing at him by claiming you were simply exercising your First Amendment rights, or (D) all of the above.
I'm partial to (D) myself, especially after reading this news article about the judge's denying the motion to dismiss the charge on free speech grounds, because portions of it read like it came from the Onion:
"Even if there was a communicative value to the Defendant's barking and hissing, it is clear that this ordinance is directed toward prohibited conduct and impairment of a First Amendment right is incidental," Judge Batsche wrote.
Mason Prosecutor Bethany Bennett had argued in June that Stephens' barking should be considered "fighting words" and an exception to free speech because it created a clear and present danger to Timber, who started barking frantically.
At the time police ticketed him early April 3 outside The Pub, Stephens maintained that "the dog started it," according to police reports.
A discrimination lawsuit in waiting:
And no bacon, either? Oh, the humanity!
See you on Monday.