{"id":16219,"date":"2010-12-13T06:46:19","date_gmt":"2010-12-13T12:46:19","guid":{"rendered":"http:\/\/www.shotinthedark.info\/wp\/?p=16219"},"modified":"2010-12-13T06:49:19","modified_gmt":"2010-12-13T12:49:19","slug":"the-political-prisoner-part-ii","status":"publish","type":"post","link":"http:\/\/www.shotinthedark.info\/wp\/?p=16219","title":{"rendered":"The Political Prisoner, Part II: Rules Are Rules"},"content":{"rendered":"

We’ve been covering the Joel Rosenberg \u00a0case. \u00a0Joel carried a handgun and knife into Minneapolis Police Department’s headquarters, leading him into a rhubarb (here<\/a>, here <\/a>and here<\/a>) with a Sergeant Bill Palmer. \u00a0A month<\/em> after the rhubarb, Hennepin County issued an arrest warrant, and held him for a couple of days (Joel was bailed late last week).<\/p>\n

Now, I’m no lawyer. \u00a0But Mark Bennett is – a criminal defense lawyer in Texas – and last week he had a pretty sanguine view<\/a> of Rosenberg’s chances both against the charges and in his future lawsuit against Hennepin county.<\/p>\n

Joe Doakes of Saint Paul is also <\/em>an attorney. \u00a0And he takes a rather different view.<\/p>\n

Joel Rosenberg is charged with violating Minn. Stat. 609.66, Subd1(g), possession of a dangerous weapon in a courthouse complex.\u00a0 I think he\u2019s in grave danger of being convicted.<\/p>\n

\u201cDangerous weapon\u201d is defined in Minn. Stat. 609.02, Subd. 6 to include guns, of course, but also includes \u201c. . . any device designed as a weapon and capable of producing death or great bodily harm . . . .\u201d<\/p>\n

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.\u00a0 The method and timing of notice is not specified.\u00a0\u00a0 Joel claims he gave notice, the Complaint claims the Sheriff has no record of it.\u00a0 This raises both a matter of legal interpretation (can you give notice once and it\u2019s 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).<\/p><\/blockquote>\n

Rosenberg has pointed out that he has is notice on file. \u00a0Hopefully that won’t be an issue; I’m looking forward to seeing the county claiming that \u00a0you have to notify them before every <\/em>visit…<\/p>\n

Even assuming both go in Joel\u2019s favor, the case is not ended.<\/p>\n

A knife is capable of producing death.\u00a0 A knife is a dangerous weapon within the meaning of Minn. Stat. 609.66.\u00a0 If the office where the incident took place is part of a courthouse complex, then Joel\u2019s gun may have been legal but his knife certainly was not.<\/p><\/blockquote>\n

Hm.<\/p>\n

Of course, the big question has been “can a judge more or less arbitrarily<\/a> call buildings “courthouses”…<\/p>\n

\"\"

Red: Henco Gov't Center - Green: City Hall, where Rosenberg was arrested.<\/p><\/div>\n

…that, in fact, are not ?<\/p>\n

\u201cCourthouse complex\u201d is not defined.\u00a0 The statute does not specify who has authority to designate a building as being part of the \u201ccourthouse complex.\u201d<\/p>\n

Minnesota\u2019s government is divided into three co-equal branches.\u00a0 The legal doctrine of Separation of Powers means the Judicial Branch has exclusive authority over matters of judicial administration and judicial officers.\u00a0 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.\u00a0 Naturally, there is a great deal of overlap (for example, under Article VI, Section 5 of the Minnesota Constitution, judges\u2019 salaries are set by the Legislature).\u00a0 There is no clear line dividing the branches\u2019 powers.<\/p>\n

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.\u00a0\u00a0 To my knowledge, the Hennepin County Board has not designated any buildings to be part of a \u201ccourthouse complex.\u201d<\/p>\n

There is no specific statutory authority for judges to designate buildings as part of a \u201ccourthouse complex,\u201d but because of the Separation of Powers doctrine, judges historically have had the power to maintain order in their own courts.\u00a0 Bailiffs are Deputy Sheriffs (Executive Branch) but they are assigned to work under the control and direction of the court (Judicial Branch).<\/p><\/blockquote>\n

S0 – separation of powers is good. \u00a0So how about a branch of government using that separation to more-or-less arbitrarily decide which state law applies to them?<\/p>\n

There is a standing Order designating the City Hall as being one of the \u201ccourt facilities\u201d for purposes of banning dangerous weapons. I assume \u201ccourt facilities\u201d is the functional equivalent of \u201ccourthouse complex.\u201d\u00a0 The Order was issued by Chief Judge James Swanson in 2008.\u00a0 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.<\/p>\n

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.\u00a0 Joel may argue that Judge Swanson lacked authority to issue the order because of Minn. Stat. 6624.714, Subd. 23, which provides: \u201cNo 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.\u201d\u00a0 But the named officers are Executive Branch officials.\u00a0 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.<\/p>\n

When a statute is ambiguous, the courts look to the legislative history to determine the intent of the law.\u00a0 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.\u00a0 I don\u2019t remember anybody testifying to the need to carry guns in courtrooms.\u00a0 Reading this subdivision to limit the judicial branch\u2019s inherent authority to maintain order in the courts is a stretch.<\/p><\/blockquote>\n

So is the Henco judge’s order “overly broad?”<\/p>\n

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.\u00a0 In contrast, the Ramsey County judges issued a similar order in May 2003 that limited the definition of \u201ccourthouse complex\u201d 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.\u00a0 Hennepin\u2019s Order is not so narrowly tailored.<\/p>\n

Over-breadth is a fact-specific analysis.\u00a0 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 \u201ccomplex\u201d probably would be found to be valid.\u00a0 Certainly the local trial court judge will think so.\u00a0 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.<\/p><\/blockquote>\n

And in places like Henco, if there’s one thing that’s more important than upholding state law, it’s never, ever <\/em>offending the Chief Judge:<\/p>\n

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.<\/p><\/blockquote>\n

Then, there’s the matter of the knife:<\/p>\n

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.\u00a0 Aside from Sgt. Bill Palmer\u2019s word, is there any proof Joel had a knife?\u00a0 Sadly, yes; Joel himself shot a video of it and posted it on YouTube.\u00a0 But a YouTube video is not eyewitness testimony, it is hearsay; can that be used against him?\u00a0 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.\u00a0\u00a0 It was an unforced error but it still goes against him.<\/p>\n

If this goes to trial, Joel will be convicted and the conviction will be upheld on appeal.<\/p><\/blockquote>\n

Ouch.<\/p>\n

More on this later today.<\/p>\n

Now, Joel’s been on a mission for a while now. \u00a0Was there another way?<\/p>\n

But he had no choice, right?\u00a0 He had to carry the gun to bring a test case to have the Order thrown out, right?\u00a0 What else could Joel have done to contest the overbreadth of the Order?<\/p>\n

He could have filed an Application for the Writ of Prohibition under Rule 120 of the Minnesota Rules of Appellate Court Procedure.\u00a0\u00a0 That application asks the Court of Appeals to prohibit the Hennepin County court from enforcing its order.\u00a0 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.\u00a0 If Joel doesn\u2019t like the Court of Appeals\u2019 answer, he goes to the Supreme Court.\u00a0 If he doesn\u2019t like their answer, he goes to the Legislature for an amendment to the law.\u00a0 But no matter how many times he loses in those places, he doesn\u2019t go to jail.\u00a0 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 \u201cCitizens for Safer Courtrooms\u201d and have it accept donations to fight the case).\u00a0 That\u2019s the proper way he should have proceeded.<\/p><\/blockquote>\n

Bear in mind, Joe is not a critic of Joel’s:<\/p>\n

I like Joel.\u00a0 He\u2019s a great writer and a good teacher.\u00a0 But this time, I think he\u2019s stepped in it.\u00a0 I suspect his preoccupation with his wife and daughter\u2019s troubles prevented him from thinking the problem all the way through.<\/p>\n

If he hadn\u2019t brought the knife, if he hadn\u2019t videotaped himself violating the Order, if he hadn\u2019t published his confession on YouTube . . . maybe things would have worked out differently and I\u2019d have been eager to stand behind him.\u00a0 I\u2019ve hit his Donate button on the Ellegon website out of respect for his past contributions to the carry movement, but I don\u2019t think the carry community benefits from making his case a hill to die on.\u00a0 I won\u2019t be publicly supporting him.<\/p>\n

Joe Doakes<\/p>\n

Como Park<\/p><\/blockquote>\n

So to sum up – judges can walk all over the intent of state law because “separation of powers” allows them to.<\/p>\n

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. \u00a0And I suspect that includes county judges.<\/p>\n

More on this later this week.<\/p>\n","protected":false},"excerpt":{"rendered":"

We’ve been covering the Joel Rosenberg \u00a0case. \u00a0Joel 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. \u00a0A month after the rhubarb, Hennepin County issued an arrest warrant, and held him for a couple of days (Joel was bailed late […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[45,30,51,22],"tags":[],"class_list":["post-16219","post","type-post","status-publish","format-standard","hentry","category-gun-free-zones","category-liberty","category-liberal-tyranny","category-victim-disarmament"],"_links":{"self":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/16219","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16219"}],"version-history":[{"count":4,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/16219\/revisions"}],"predecessor-version":[{"id":16227,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=\/wp\/v2\/posts\/16219\/revisions\/16227"}],"wp:attachment":[{"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16219"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16219"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.shotinthedark.info\/wp\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16219"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}