Stun guns in MA

I know we talked about this a bit, but can it go to the circuit court?

Highly unlikely.

The path for state criminal charges is as follows: DC/Superior Court, Appeals then the SJC (or direct to the SJC when they don't trust the appeals court to get it "right", which clearly they didn't here...).

There is case law stating no court can stand in judgement of a state supreme court other than SCOTUS.

However, that said, in this sorta of exception, there is something call habeas. If the person is locked up and SCOTUS fails to review the petition from state supreme court, the person can file in Federal DC, which is then appealable to the circuit, which is in turn appealable to SCOTUS. But she isn't locked up. She will never be locked up.

That said, she can be a plaintiff in FDC challenging the constitutionality of this law, but neither the MA FDC, nor CA1 will over ride this decision. What's more ****ed up is based on these rules, the MA SJC just ****ed up ME, NH, RI and Puerto Rico. That's where it gets really screwy. The MA SJC made this ruling based SOLELY on the Second Amendment and not on the state constitution (they made that clear in a footnote). So, MA FDC won't go around this, but CA1 sort of could, but they won't, because they don't want to, unless they can figure out a means for distinguishing this case from another like they did in Glik which preserved the SJC's ruling that surreptitious recording was not constitutionally protected but open recording was. The open v. closed was the distinction.

But I see nothing in this decision that isn't completely and utterly broad. This does not allow for distinguishing anything on the issue. Now, that said, those states don't have prohibitions so it's a moot point. But if they did, CA1 would have to have balls of steel to countermand the SJC if there was a case out of NH lets say. They could rule the opposite way and hold stun guns constitutional, but they would not enforce that ruling in MA nor would they even try.
 
Highly unlikely.

The path for state criminal charges is as follows: DC/Superior Court, Appeals then the SJC (or direct to the SJC when they don't trust the appeals court to get it "right", which clearly they didn't here...).

There is case law stating no court can stand in judgement of a state supreme court other than SCOTUS.

However, that said, in this sorta of exception, there is something call habeas. If the person is locked up and SCOTUS fails to review the petition from state supreme court, the person can file in Federal DC, which is then appealable to the circuit, which is in turn appealable to SCOTUS. But she isn't locked up. She will never be locked up.

That said, she can be a plaintiff in FDC challenging the constitutionality of this law, but neither the MA FDC, nor CA1 will over ride this decision. What's more ****ed up is based on these rules, the MA SJC just ****ed up ME, NH, RI and Puerto Rico. That's where it gets really screwy. The MA SJC made this ruling based SOLELY on the Second Amendment and not on the state constitution (they made that clear in a footnote). So, MA FDC won't go around this, but CA1 sort of could, but they won't, because they don't want to, unless they can figure out a means for distinguishing this case from another like they did in Glik which preserved the SJC's ruling that surreptitious recording was not constitutionally protected but open recording was. The open v. closed was the distinction.

But I see nothing in this decision that isn't completely and utterly broad. This does not allow for distinguishing anything on the issue. Now, that said, those states don't have prohibitions so it's a moot point. But if they did, CA1 would have to have balls of steel to countermand the SJC if there was a case out of NH lets say. They could rule the opposite way and hold stun guns constitutional, but they would not enforce that ruling in MA nor would they even try.

Thanks, great explanation.

Great explanation of a big steaming pile that is.
 
The SJC proving they don't care about their reputation.

http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/11718.pdf

MA SJC holds that a stun gun "is not the type of weapon eligible for 2A protection". Despite being briefed by Comm2A AND THE state to the contrary on this matter, the SJC is claiming that "dangerous and unusual" is the test. And the coup de grace is that the stun gun is too new, and therefore not around since the founding… Also, that Miller v. US (1939) protects only military arms…

But wait, there's more! "[Stun Guns] are ineffective for…hunting and shooting sports." and "The question remains whether the total ban on stun guns has a rational basis.
"

All I can say is... WOW!
 
Keep in mind that, unlike most of the civil litigation we bring or follow, this is a criminal case. It's bad enough that this young woman had an abusive boyfriend (and according to her attorney, there's still reason to fear him), but she also now has a serious criminal conviction on her record.
 
What's more ****ed up is based on these rules, the MA SJC just ****ed up ME, NH, RI and Puerto Rico. That's where it gets really screwy. The MA SJC made this ruling based SOLELY on the Second Amendment and not on the state constitution (they made that clear in a footnote). So, MA FDC won't go around this, but CA1 sort of could, but they won't, because they don't want to, unless they can figure out a means for distinguishing this case from another like they did in Glik which preserved the SJC's ruling that surreptitious recording was not constitutionally protected but open recording was. The open v. closed was the distinction.


Sorry, I'm a little slow today. Why does this effect these states?
 
Keep in mind that, unlike most of the civil litigation we bring or follow, this is a criminal case. It's bad enough that this young woman had an abusive boyfriend (and according to her attorney, there's still reason to fear him), but she also now has a serious criminal conviction on her record.

Two important lessons:

1. Do not grant consent to a search. If she had not granted such consent, they might not have searched, or may have done a "bad search" sans warrant. Some dirtbags with a 357 in their car in Ashland a year or three ago got off because it was a "bad search" and they did not offer consent.

2. Think VERY carefully about the risk before turning down a "no jail time/no conviction" deal. The charges were placed "on file" (I assume that's like a CWOF), and would have left her with an arrest record, but no conviction. As a result of the appeal, she now has a conviction with all the problems that brings. Remember, the system will punish defendants for not playing the game of "give the prosecutor some meat to chew on even if you are not guilty".
 
Sorry, I'm a little slow today. Why does this effect these states?

It shouldn't, but it could in a round about way if anyone in those states brings a federal case to the 1st Circuit.

A little more pointed: United States Court of Appeals for the First Circuit

The United States Court of Appeals for the First Circuit (in case citations, 1st Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts:
District of Maine
District of Massachusetts
District of New Hampshire
District of Puerto Rico
District of Rhode Island

The court is based at the John Joseph Moakley Federal Courthouse in Boston, Massachusetts. Most sittings are held in Boston, where the court usually sits for one week most months of the year; in one of July or August, it takes a summer break and does not sit. The First Circuit also sits for one week each March and November at the Jose V. Toledo Federal Building and United States Courthouse in Old San Juan, Puerto Rico, and occasionally sits at other locations within the circuit.[1]

With six active and four senior judges, the First Circuit is the smallest of the thirteen United States courts of appeals. Since retiring as an active Justice of the United States Supreme Court, Associate Justice David Souter regularly sits on the First Circuit by designation.

http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_First_Circuit
 
I hope this #WarOnWomen and #WarOnTheHomeless being perpetuation by the MA SJC makes national news and earns them a much deserved pimp slap from the SCOTUS. The cherry picking, gymnastics, and semantics the court is willing to go through to push their personal politics vs. a clear reading of the law is an affront to the founding spirit and duty of the judiciary.

I had very little respect for the MA SJC prior to this ruling; and now I must say that I share the same level of respect for them as they do the Bill of Rights, which is to say NONE.
 
A little more pointed: United States Court of Appeals for the First Circuit

The United States Court of Appeals for the First Circuit (in case citations, 1st Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts:
District of Maine
District of Massachusetts
District of New Hampshire
District of Puerto Rico
District of Rhode Island

The court is based at the John Joseph Moakley Federal Courthouse in Boston, Massachusetts. Most sittings are held in Boston, where the court usually sits for one week most months of the year; in one of July or August, it takes a summer break and does not sit. The First Circuit also sits for one week each March and November at the Jose V. Toledo Federal Building and United States Courthouse in Old San Juan, Puerto Rico, and occasionally sits at other locations within the circuit.[1]

With six active and four senior judges, the First Circuit is the smallest of the thirteen United States courts of appeals. Since retiring as an active Justice of the United States Supreme Court, Associate Justice David Souter regularly sits on the First Circuit by designation.

http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_First_Circuit

But none of those states prohibit stun guns, so there is no concern at the moment. I should stress this, the effect of the SJC on other states requires that the other states actually restrict shit like MA does.

- - - Updated - - -

Two important lessons:

1. Do not grant consent to a search. If she had not granted such consent, they might not have searched, or may have done a "bad search" sans warrant. Some dirtbags with a 357 in their car in Ashland a year or three ago got off because it was a "bad search" and they did not offer consent.

2. Think VERY carefully about the risk before turning down a "no jail time/no conviction" deal. The charges were placed "on file" (I assume that's like a CWOF), and would have left her with an arrest record, but no conviction. As a result of the appeal, she now has a conviction with all the problems that brings. Remember, the system will punish defendants for not playing the game of "give the prosecutor some meat to chew on even if you are not guilty".

To be honest, the case has likely already been dismissed. It's a non issue. But that they allowed this appeal to proceed tells me that cases placed on file will get the same treatment as CWOFs wrt suitability, future convictions, etc. So it's still likely a live controversy.
 
But none of those states prohibit stun guns, so there is no concern at the moment. I should stress this, the effect of the SJC on other states requires that the other states actually restrict shit like MA does.
http://webserver.rilin.state.ri.us/Statutes/title11/11-47/11-47-42.HTM

§ 11-47-42 Weapons other than firearms prohibited. – (a)(1) No person shall carry or possess or attempt to use against another any instrument or weapon of the kind commonly known as a blackjack, slingshot, billy, sandclub, sandbag, metal knuckles, slap glove, bludgeon, stun-gun, or the so called "Kung-Fu" weapons.
 
Terra - what effect, if any, do you think that the dicta that a pocket knife is not a weapon per-se will have on 169-10j persecutions?
 
http://webserver.rilin.state.ri.us/Statutes/title11/11-47/11-47-42.HTM

§ 11-47-42 Weapons other than firearms prohibited. – (a)(1) No person shall carry or possess or attempt to use against another any instrument or weapon of the kind commonly known as a blackjack, slingshot, billy, sandclub, sandbag, metal knuckles, slap glove, bludgeon, stun-gun, or the so called "Kung-Fu" weapons.

I didn't know RI had the same prohibition. That's hilarious, because the guy who handed Caetano her stun gun was from RI... LOL. We'll have to take a case against RI and see what CA1 does.
 
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Terra - what effect, if any, do you think that the dicta that a pocket knife is not a weapon per-se will have on 169-10j persecutions?

I agree with your email to the mailing list this morning. None, it will be distinguished and considered a weapon again. I would add this would likely occur in the context of the carrier, which will likely be a student. In your example of the electrician, they *may* hold that permissible, but they would likely do so based on the fact that the electrician was invited to work on the grounds and so it was expected that standard electricians tools were permitted/authorized by the principal.
 
I agree with your email to the mailing list this morning. None, it will be distinguished and considered a weapon again. I would add this would likely occur in the context of the carrier, which will likely be a student. In your example of the electrician, they *may* hold that permissible, but they would likely do so based on the fact that the electrician was invited to work on the grounds and so it was expected that standard electricians tools were permitted/authorized by the principal.

In other words the SJC has to little respect for itself that it won't even recognize the precedent set by its own decisions.
 
Can this decision potentially lead to police departments facing civil suits for using stun guns/tazers to subdue suspects on the grounds that the court has declared them "dangerous and unusual" weapons?
 
Can this decision potentially lead to police departments facing civil suits for using stun guns/tazers to subdue suspects on the grounds that the court has declared them "dangerous and unusual" weapons?

You bet. The aclu has been leading the charge on that. An aclu report was fired by the court too.
 
Didn't SCOTUS specifically repudiate the "If it wasn't in existence in 1789, it's not covered by 2A" line of reasoning in Heller?

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
 
and the SJC has said flat out "we don't follow the jurisprudence of the Supreme Court".

I really hope that gets slapped down at some point.

The fact that SCOTUS used the language "bordering on frivolous" to describe the "flintlocks and muskets" argument is telling. "Frivolous" is just about the worst insult that can be delivered in a legal context. When a judge tells you your argument is "frivolous", it doesn't mean that your opponent has a better case, that the facts fall on his or her side, that you made an understandable and reasonable error, or that you failed to make your argument effectively. It pretty much means that your argument has no basis in fact or law, that it's one of the dumbest things he or she has ever heard, and that everyone in this courtroom is now dumber for having listened to it.
 
The SJC proving they don't care about their reputation.

http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/11718.pdf

MA SJC holds that a stun gun "is not the type of weapon eligible for 2A protection". Despite being briefed by Comm2A AND THE state to the contrary on this matter, the SJC is claiming that "dangerous and unusual" is the test. And the coup de grace is that the stun gun is too new, and therefore not around since the founding… Also, that Miller v. US (1939) protects only military arms…

But wait, there's more! "[Stun Guns] are ineffective for…hunting and shooting sports." and "The question remains whether the total ban on stun guns has a rational basis."

Ok, I know I'm asking a lot here, and this whole "legal cases"-thing is a new hobby for me, but are they not required to be internally consistent?

"Even were we to view stun guns through a contemporary lens for purposes of our analysis, there is nothing in the record to suggest that they are readily adaptable to use in the military. Indeed, the record indicates "they are ineffective for . . . hunting or target shooting."

These are two wholly-unrelated statements, unless "use in the military" == "hunting or target shooting."

I'm going to have a drink.
 
Who does this "requiring" of which you speak?

That would be us. We have to elect people who will appointed actual judges rather than progressive political operatives or better yet, impeach them.
 
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