The Political Prisoner, Part II: Rules Are Rules

We’ve been covering the Joel Rosenberg  case.  Joel carried a handgun and knife into Minneapolis Police Department’s headquarters, leading him into a rhubarb (here, here and here) with a Sergeant Bill Palmer.  A month after the rhubarb, Hennepin County issued an arrest warrant, and held him for a couple of days (Joel was bailed late last week).

Now, I’m no lawyer.  But Mark Bennett is – a criminal defense lawyer in Texas – and last week he had a pretty sanguine view of Rosenberg’s chances both against the charges and in his future lawsuit against Hennepin county.

Joe Doakes of Saint Paul is also an attorney.  And he takes a rather different view.

Joel Rosenberg is charged with violating Minn. Stat. 609.66, Subd1(g), possession of a dangerous weapon in a courthouse complex.  I think he’s in grave danger of being convicted.

“Dangerous weapon” is defined in Minn. Stat. 609.02, Subd. 6 to include guns, of course, but also includes “. . . any device designed as a weapon and capable of producing death or great bodily harm . . . .”

Minn. Stat. 609.66, Subd. 1(g) (b) (2) provides an exception for persons carrying pistols pursuant to a valid permit, if that person gives notice to the Sheriff.  The method and timing of notice is not specified.   Joel claims he gave notice, the Complaint claims the Sheriff has no record of it.  This raises both a matter of legal interpretation (can you give notice once and it’s good forever, or must you give notice for each visit, and how far in advance) as well as a matter of proof (did he actually give the notice).

Rosenberg has pointed out that he has is notice on file.  Hopefully that won’t be an issue; I’m looking forward to seeing the county claiming that  you have to notify them before every visit…

Even assuming both go in Joel’s favor, the case is not ended.

A knife is capable of producing death.  A knife is a dangerous weapon within the meaning of Minn. Stat. 609.66.  If the office where the incident took place is part of a courthouse complex, then Joel’s gun may have been legal but his knife certainly was not.

Hm.

Of course, the big question has been “can a judge more or less arbitrarily call buildings “courthouses”…

Red: Henco Gov't Center - Green: City Hall, where Rosenberg was arrested.

…that, in fact, are not ?

“Courthouse complex” is not defined.  The statute does not specify who has authority to designate a building as being part of the “courthouse complex.”

Minnesota’s government is divided into three co-equal branches.  The legal doctrine of Separation of Powers means the Judicial Branch has exclusive authority over matters of judicial administration and judicial officers.  Lawyers, for example, are licensed not by the Executive Branch in the manner of electricians or land surveyors, but instead are licensed and disciplined by the Supreme Court.  Naturally, there is a great deal of overlap (for example, under Article VI, Section 5 of the Minnesota Constitution, judges’ salaries are set by the Legislature).  There is no clear line dividing the branches’ powers.

Minn. Stat. 484.77 provides the County Board must furnish suitable facilities for court purposes; thereafter, the County Board and the District Court must mutually agree upon relocation, renovation, etc.   To my knowledge, the Hennepin County Board has not designated any buildings to be part of a “courthouse complex.”

There is no specific statutory authority for judges to designate buildings as part of a “courthouse complex,” but because of the Separation of Powers doctrine, judges historically have had the power to maintain order in their own courts.  Bailiffs are Deputy Sheriffs (Executive Branch) but they are assigned to work under the control and direction of the court (Judicial Branch).

S0 – separation of powers is good.  So how about a branch of government using that separation to more-or-less arbitrarily decide which state law applies to them?

There is a standing Order designating the City Hall as being one of the “court facilities” for purposes of banning dangerous weapons. I assume “court facilities” is the functional equivalent of “courthouse complex.”  The Order was issued by Chief Judge James Swanson in 2008.  In my experience, it is unlikely for such an Order to be the work of one rogue judge; instead, all the judges on the Hennepin County bench likely agreed on the order and the Chief Judge signed it.

The Order states its authority to designate buildings as part of the court facilities for purposes of banning dangerous weapons is the inherent responsibility of the Judicial Branch to ensure order in the court.  Joel may argue that Judge Swanson lacked authority to issue the order because of Minn. Stat. 6624.714, Subd. 23, which provides: “No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.”  But the named officers are Executive Branch officials.  Judges are conspicuously absent from the list perhaps because, under Separation of Powers, the Legislative Branch knew it lacked authority to tell the judicial branch how to run its shop.

When a statute is ambiguous, the courts look to the legislative history to determine the intent of the law.  The harm meant to be addressed by Subdivision 23 was the problem of local officials exercising discretion in issuance of carry permits and this subdivision cures that ill.  I don’t remember anybody testifying to the need to carry guns in courtrooms.  Reading this subdivision to limit the judicial branch’s inherent authority to maintain order in the courts is a stretch.

So is the Henco judge’s order “overly broad?”

Another possible argument is that the Order is overly broad because it lists entire buildings, not only those sections of the buildings used for courtroom purposes.  In contrast, the Ramsey County judges issued a similar order in May 2003 that limited the definition of “courthouse complex” to those areas of buildings where court activities took place, except where the layout of a building made that impossible (50 West Kellogg) in which case the entire building is designated.  Hennepin’s Order is not so narrowly tailored.

Over-breadth is a fact-specific analysis.  If it would be difficult or burdensome to reconfigure the building to segregate the courts portion from the rest of the users of the building, then designating the entire building as part of the “complex” probably would be found to be valid.  Certainly the local trial court judge will think so.  The Court of Appeals and the Supreme Court tend to defer to the trial court in matters of fact because the trial court had the best opportunity to assess the credibility of the witnesses and hear all the evidence.

And in places like Henco, if there’s one thing that’s more important than upholding state law, it’s never, ever offending the Chief Judge:

As a practical matter, no District Court judge is going to find that her own Chief Judge lacked authority to issue the Order or that it was over-broad.

Then, there’s the matter of the knife:

Assuming the trial judge finds the Chief Judge had authority to issue the Order designating the entire City Hall building as a courthouse, the statute prohibits knives as dangerous weapons.  Aside from Sgt. Bill Palmer’s word, is there any proof Joel had a knife?  Sadly, yes; Joel himself shot a video of it and posted it on YouTube.  But a YouTube video is not eyewitness testimony, it is hearsay; can that be used against him?  Sure, when Joel publicly posted the video and its taunting follow-up, he made an admission against interest, basically a voluntary confession, which is an exception to the hearsay rule.   It was an unforced error but it still goes against him.

If this goes to trial, Joel will be convicted and the conviction will be upheld on appeal.

Ouch.

More on this later today.

Now, Joel’s been on a mission for a while now.  Was there another way?

But he had no choice, right?  He had to carry the gun to bring a test case to have the Order thrown out, right?  What else could Joel have done to contest the overbreadth of the Order?

He could have filed an Application for the Writ of Prohibition under Rule 120 of the Minnesota Rules of Appellate Court Procedure.   That application asks the Court of Appeals to prohibit the Hennepin County court from enforcing its order.  The Court of Appeals then decides whether Judge Swenson had authority to issue the Order, and whether designating the entire building made the Order overly broad.  If Joel doesn’t like the Court of Appeals’ answer, he goes to the Supreme Court.  If he doesn’t like their answer, he goes to the Legislature for an amendment to the law.  But no matter how many times he loses in those places, he doesn’t go to jail.  The filing fee is $550, the attorneys will cost a couple of grand, he probably could get a group of people to join in the application (form a non-profit named “Citizens for Safer Courtrooms” and have it accept donations to fight the case).  That’s the proper way he should have proceeded.

Bear in mind, Joe is not a critic of Joel’s:

I like Joel.  He’s a great writer and a good teacher.  But this time, I think he’s stepped in it.  I suspect his preoccupation with his wife and daughter’s troubles prevented him from thinking the problem all the way through.

If he hadn’t brought the knife, if he hadn’t videotaped himself violating the Order, if he hadn’t published his confession on YouTube . . . maybe things would have worked out differently and I’d have been eager to stand behind him.  I’ve hit his Donate button on the Ellegon website out of respect for his past contributions to the carry movement, but I don’t think the carry community benefits from making his case a hill to die on.  I won’t be publicly supporting him.

Joe Doakes

Como Park

So to sum up – judges can walk all over the intent of state law because “separation of powers” allows them to.

Even if it means walking over it to attack people – carry permit holders – who are, statistically, two orders of magnitude less likely to commit crimes than the general public.  And I suspect that includes county judges.

More on this later this week.

12 thoughts on “The Political Prisoner, Part II: Rules Are Rules

  1. One thing not apparent from the photograph is that there is a tunnel from the main portion of the Government Center to City Hall. In addition to the placement of Conciliation court, I’m sure the court will latch onto that fact to rule that “facilities” includes that complex. The Gov’t Ctr. is divided into two main towers, the “A,” which is largely administrative offices – though not exclusively – and the “C” which is where the courtrooms and Judges’ chambers are housed. I would think very clearly guns would not be allowed in the “A” tower, as there are bridges connecting the two every three levels or so. I would suspect that judges will say they don’t want to get into the business of figuring out which nooks and crannies are “gun free” and which are “free.” For example, in Ramsey county, there are several floors in the courthouse building which hold only admin offices. Would a similar order exclude those? I’m not even sure it could, but those are the distinctions that make Mr. Rosenberg’s argument difficult.

    And I agree with attorney Doakes that Rosenberg did not think this through carefully. We can have some admiration for someone who thinks a particular law or order is unjust, but there are other ways to collaterally attack the order’s validity, short of violating it. It has always been the case that even if someone has a good faith belief that an order is unlawful, that if they are convicted of it, and it is upheld, they must still face the consequences. This is no small thing, , if he is convicted, could jeopardize his right to carry, for what seems to amount to a pissing match with the Sheriff.

  2. The Old City hall contains court facilities – small claims court rooms for example.

    If you are trying to argue that by being in the old part of the city and county facilities Joel was not ‘in court complex / facilities’.

    I didn’t notice the definitions defining some courts but not others…..?

    I wish Joel luck of course, but I’d have to agree that the knife does not appear to be part of his permit to carry either. Good luck Joel!!!!

  3. At the end of the day it’s the “overly broad” problem. The MPD is counting on that problem being nicely swept under the rug by a sympathetic court. Note I said sympathetic court, NOT just court! ALL RISE, AND THEN GET ON YOUR KNEES, BEFORE THE ALL GLORIUS AND POWERFUL JUDGE!

  4. The facilities may be connected, but they still have different addresses, if I remember correctly.

    Regarding the knife, there is plausible deniability as well if it is a hunting knife–it must be, according to the law, designed as a weapon, no? For that matter, you could simply make the point that even if someone marketed it as a self-defense weapon (or offense for that matter), that the defendant bought it as a useful tool for hunting/cutting open boxes/etc..

    Lots of leeway in those laws….Rosenberg could lose in Hennco, but a good lawyer is going to make hay out of the vagueness of the law in state court.

  5. Oh, crap…DeeGee doesn’t like the looks of Joel’s case?

    Well, that does it then; Joel is doomed as doomed can be.

    Pffffft.

  6. “Regarding the knife, there is plausible deniability”

    That is unless you post that you were carrying the knife as a back-weapon with the potential to kill someone as Joel did.

    Q: Is a gun a dangerous weapon.
    A: Yes
    Q:What else was the defendant carrying.
    A: What he himself posted as his “backup gun and his backup knife” which he could have used to kill Palmer, again in his own words.

  7. Sam, the trick is that the knife must be “designed as a dangerous weapon.” In other words, the designer intended for it to be used specifically for killing….people.

    Now you’ll find costume knives, hunting knives, cooking knives, and more out there, but you won’t find too many knives designed for killing people–at least not that the designers will admit! Hence, as the law reads, plausible deniability remains here.

  8. 609.02 Defines Dangerous Weapon.
    This is where Joel’s admission causes issue.
    You could argue about if his knife is by definition a dangerous weapon (based on your logic) however, Sud 6 ends:
    “or device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm”

    Based on the posting: the Knife he carried was carried with the purpose that if used was expected to create death or great bodily harm.

    (This is the same reason a baseball bat is not a dangerous weapon, but if I carry it with me and say “I am going to use this bash your head in and you will either be dead or bleeding heavily” I just turned it into a deadly weapon)

  9. Who is Joe Doakes? I cannot see him listed on any local firms, his name does not appear as an attorney on any case in MN on mncourts.gov, and the only Google references I see to him are here, and TrueNorth…

    Not accusing anything, just wondering.

    Joel is exempt from penalty in the 609.66 1g. clause… As he has a permit to carry and made notification.

    609.66 1g (b) this subdivision does not apply to: …(2) persons who carry pistols according to the terms of a permit issued under section 624.714 and who so notify the sheriff

    Knife or not, Joel meets the exclusion criteria to be exempted from penalty specified in 609.66 1g.

  10. Rob,

    Joe is an attorney who has asked me to operate under a pseudonym in my comment section. I do know him personally (as, indeed, I do many of this blog’s most notable anonymous commenters – Angryclown, Dog Gone, Penigma and Fingers among others – and know that he is an attorney.

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