There can be no doubt that America is in the midst of a protracted epidemic of mass shootings. Over the past decade, barely a month goes by where we are not treated to horrific headlines from some type of shooting where multiple people are killed. 

A mass shooting in the United States is defined as an incident where four or more people are shot, wounded, or killed in a single event, not including the shooter. On November 30, 2021, four students were killed by another student at Oxford High School in Oakland County, MIchigan. 

The case against Jennifer Crumbley, Mother of the Oxford High School shooter, was submitted to an Oakland County jury last Friday. The shooter's father is scheduled for trial in March. In this pair of truly groundbreaking cases, the shooter's parents were each charged with four counts of involuntary manslaughter. Their son has already pled guilty to four counts of first degree murder and was sentenced as an adult to life without the possibility of parole. 

Groundbreaking Case; Complicated and Unusual Circumstances

America has become accustomed to mass shootings; we've become numb to these frequent tragic events and their painful aftermath. Congress cannot pass effective gun control measures and, even if they did, our Second Amendment right to bear arms is a foundational bar to comprehensive gun regulation. 

Mass shootings usually end with the shooter taking his or her own life, or being charged with multiple counts of murder and other capital felonies. In Michigan, a capital felony is any crime where life imprisonment is a potential sentence upon conviction. 

Mental illness is highly correlated with mass shootings; a very high percentage of mass shooters have some form of acute mental illness. The Crumbley case is no different.

The Oxford High School shooting was the first mass shooting -according to the above referenced definition- in Oakland County, Michigan. The case has some very unusual factual aspects. 

First, following the shooting, the Oakland County Sheriff attempted to locate the shooter's parents but were unable to do so because, as it turned out, they went on the lam in Detroit. As a result, the Oakland County Sheriff scrambled a state-wide manhunt for James and Jennifer Crumbley, locating them cowering in a warehouse in the 313.

Second, the Crumbleys allegedly purchased the Sig Sauer 9 mm used in the shooting rampage for their son as a Christmas gift, although he was not elibigle to legally own or possess a gun due to his minority. Jennifer Crumbley testified in her own defense; always a highly risky prospect. She testified that she helped her son research and purchase the weapon.

Third, any time an attorney allows her client to testify, evidentiary doors often get opened that damage the defendant on cross examination. In this case, Jennifer Crumbley testified about her son's text communications about ghosts and demons; trying to explain it all away and to justify why she neglected to get her son professional help. 

The jury heard evidence that Jennifer thought her son was "weird"; that his only hobby involved shooting guns; that they, as a family, made trips to the shooting range; that she researched mental illness on the eve of her son's shooting rampage, but never took him to a professional or even thought he had a mential illness. 

On and on it goes. No wonder the Oakland County Prosecutor believes she can convict on a manslaughter theory. Technically, the prosecutor tried the case under two separate and distinct manslaughter theories; more on that below. 

To be fair, national headlines and publicity notwithstanding, the prosecutor had to bring these charges. Under such facts, not to do so would be political suicide. Nor could she have extended the Crumbleys any plea offer; also political suicide. Karen McDonald had to go to a jury trial in this case. In Michigan, county prosecutors are up for election every four years. In the midst of America's mass shooting epidemic, lack of parental supervision is a legitimate theory to assign culpability in some cases. 

In some ways, the Crumbleys are in a similar liability position as the parent of an infant or toddler who staggers into a room with a loaded weapon and shoots someone. We've seen dozens of such cases across the country. 

Jury Instructions

In criminal cases, there are a set of standard jury instructions that set forth some of the basic procedural and substantive concepts involved in our criminal justice system. They are standard to the extent that they are read to juries in every criminal case. There are also special jury instructions that cover some of the unique circumstances of a particular case, like the case of the Crumbley parents.

The Oakland County jury was charged with the following instructions for involuntary manslaughter. The jury instructions, read to the jury by Oakland County Circuit Judge Cheryl Matthews, included two separate theories of manslaughter; one involving the legal duty of due care contained within the concept of neglegence, the other involving gross neglegence. 

Regarding the gross negligence theory, Judge Matthews charged the jury that the Oakland County Prosecutor had the burden to prove each of the following two elements beyond a reasonable doubt, which is the highest evidentiary burden in Michigan:

• First, that the defendant caused the death of the student(s), that is, that the student(s) died as a result of storing a firearm and its ammunition, so as to allow access to the firearm and its ammunition by her minor child; and 

• Second, in doing the act that caused the student's death, the defendant acted in a grossly negligent manner.

These instructions were repeated for each of the four deceased Oxford High School students. 

Regarding the ordinary negligence theory, a special jury instruction was fashioned and read to the jury:

The defendant is charged with the crime of involuntary manslaughter resulting from the failure to perform a legal duty. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

• First, that the defendant had a legal duty to the decedent. The legal duty here is one imposed by law. In Michigan, a parent has the duty to exercise the duty of reasonable care to control their minor child so as to prevent the minor child from harming others or prevent the minor child from conducting themselves in a way that creates an unreasonable risk of bodily harm to others. This duty arises when both of the following are true: a) the parent knows or has reason to know that they have the ability to control their minor child; and b) the parent knows the necessity and opportunity to exercise such control.

• Second, that the defendant knew of the facts that gave rise to the duty.

• Third, that the defendant neglected or refused to perform that duty and that her failure to perform it was grossly negligent to human life.

• Fourth, that the death of the student(s) was directly caused by defendant's failure to perform this duty, that is, that the student(s) died as a result of the defendant's failure to exercise reasonable care to control her minor child so as to prevent the minor child from intentionally harming others or the minor child from so conducting himself so as to create an unreasonable risk of bodily harm to others when the defendant knew she had the ability to control her minor child and knew of the necessity and opportunity to do so. 

The jury was also instructed that the shooter's act of shooting was reasonably foreseeable; they were instucted that either or both of the prosecutor's theories were sufficient to convict the defendant. Because one of the prosecutor's witnesses qualified as an expert in computer forensics, the jury was instucted on consideration of expert witness testimony; that they did not have to believe the expert's opinion but that they needed to decide how much weight to give to such testimony. 

Because this is truly a momentus case under the intense scrutiny of our national media, the jury could be out for several days considering the complex jury instuctions. 

Involuntary Manslaughter Law in Michigan

Involuntary manslaughter is a 15-year felony meaning that if convicted, Jennifer Crumbley faces up to 15-years in a Michigan Department of Corrections prison. Normally, defendants without significant prior felony convictions do not receive the maximum sentence. 

But this is not a normal case; this is a high-profile case that has the attention of the entire nation because it is believed to be the first time the parents of a mass shooter have been charged with manslaughter. 

Unlike voluntary manslaughter, involuntary manslaughter does not require establishing an intent to kill the victims. Involuntary manslaughter is highly circumstance dependent. The Michigan Supreme Court has described it as:

Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony or naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty. 

This definition from our common law, of course, ties into the jury instructions above. Clear as mud, right?

An average juror, understandibly, may have some difficulty keeping the concepts straight. Judge Matthews did instruct the Crumbley jury that they could convict Jennifer Crumbley if they were convinced of either of the prosecutor's theories of culpability, i.e. the gross negligence theory or the breach of parental legal duty theory.

Full Disclosure

We here at the Law Blogger go way back with many of the players in these groundbreaking cases. We've known Judge Matthews since she was an assistant prosecutor in Oakland County; this blogger appeared before Judge Matthews just last week; our lawyers go back with Oakland County Prosecutor Karen McDonald to the days when she was a family law lawyer with the Dickenson firm, and then a family court judge; we have had cases where Karen McDonald represented the opposing party and we appeared before former judge McDonald in dozens of cases when she was on the family court bench. 

We've known defense counsel Shannon Smith, and currently have our own capital case with Smith's former law partner Mariel Lehman, James Crumbley's defense counsel. Our law firm has had to coordinate the trial in our capital case in Livingston County with James Crumbley's trial. 

So, along with the rest of the country, we will anxously await the jury verdict in this groundbreaking case and the in the James Crumbley case. A guilty verdict could redefine a parent's duties to control the conduct of their minor children; something that many Americans believe is long overdue. 

On the other hand, Michigan jurisprudence has long been settled that the criminal acts of third parties are not deemed to be foreseeable. Should an exception be made when the criminal actor is your minor child? 

Post #638

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To put it bluntly, some federal judges are saying, "NO", rejecting requests to open gun stores.

The COVID-19 pandemic is all-consuming. Of course then, one of its tendrils has intersected America's sacred Second Amendment right to purchase and bear arms.

States Determine What Businesses Are Essential

Whether gun stores are "essential" businesses and thus can stay open under various state stay-at-home orders is a hotly debated topic. The issue involves local law enforcement and the national gun lobby attempting to work out an answer in federal  courts across the nation. As is so often the case in federal court, the answer depends on the judge, the region, and the circumstances.

With temporary but protracted government-forced business closures, the NRA, other pro-weapon organizations, and individual gun store owners are filing federal lawsuits by the hundreds, seeking to enjoin the local sheriff from shuttering gun businesses. These cases have a common ingredient: the gun-lobby puts the matter into suit with a motion seeking a temporary restraining order to enjoin the sheriff from closing the gun store.

Pro-gun groups assert that the forced government shut-downs violate citizens' rights to purchase and possess weapons under the Second Amendment to the United States Constitution. Further, the argument goes, the Second Amendment is unique in that it makes gun stores essential by its very text.

The Second Amendment

The pithy text of the amendment states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

On the other side of the argument, state actors -governors across the nation- assert that their "stay-at-home" business closure executive orders are consistent with a state's health and safety interests to the extent that closed businesses reduce the spread of the disease. Michigan would be "Exhibit A" in this debate.

Executive Orders Here in Michigan

When word gets out in our local communities that certain businesses are in operation, the legal question becomes: is the business "essential" or "non-essential". Then the next question is whether the local county sheriff has the political will -the prosecutorial discretion- to ticket the local business for rogue operations.

Here in Michigan, four Northern Michigan sheriffs [from Mason, Manistee, Benzie, and Leelaneau Counties; contiguous counties along Lake Michigan] have banded together to protest Governor Gretchen Whitmer's latest executive shut-down order - Executive Order 2020-42; arguably one of the most restrictive in the country.

The primary thrust of the critique is that EO 2020-42 contains vague and inconsistent language that has proven difficult to enforce. The Lake Michigan sheriff's group said that EO 2020-42 was "a vague framework of emergency laws that only confuse Michigan citizens."

Aside from the general protestation against a state's power to close a legitimate business, a secondary question is whether gun stores are "essential". There is no simple answer to that one. Gun groups contend that the ability to possess weapons and ammunition is as essential as electricity, fuel and groceries. This is especially the case, they say, in these uncertain and fearful times. [Contact your neighborhood prepper for more info.]

Federal Courts Getting Drawn Into the Debate

Meanwhile, as this debate rages on, two federal judges in California, both Obama appointees, have refused to issue TROs sought by the NRA and other gun groups against the sheriffs in Ventura and Los Angeles Counties. These decisions will, no doubt, be appealed to the infamous Ninth Circuit Court of Appeals in San Francisco. We can expect one of the cases now percolating in the federal courts to emerge as a SCOTUS certiorari grantee.

We here at the Law Blogger anticipate that the various circuits will issue a patchwork of differing decisions; decisions highly-dependent on the specific texts of the state government orders. The right case going to the Supreme Court will offer a unique opportunity for a now-conservative Court to address the text of the Second Amendment. Look for such a case in the 2021-2022 term; we'll be monitoring the High Court's docket so we can report back to our readers.

We Can Help

If you own or operate a business that has been enjoined from serving your customers and your business is arguably "essential", our law firm can provide assistance. Simply click on the link below to access our web site for contact information.

Post #628
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Back in 2009, we were new to blogging over here at the Law Blogger when a very differently configured SCOTUS last applied state law to the Second Amendment. In District of Columbia v Heller, decided in 2008, SCOTUS recognized for the first time an individual's right to bear arms in self defense.

Nearly 10-years ago to the day, we predicted that the 2nd Amendment cases yet to be decided that term would inure to the benefit of gun owners; we were correct. Our earlier post sets the stage for the case argued today before the SCOTUS; a case straight out of New York City.

This recent case, known as New York State Rifle and Pistol Owners v New York City, involves a relatively strict local ordinance banning transportation of personally owned firearms within the city. Eventually, NYC's licensed gun owners grew weary of violating this ordinance every time they wanted to take their weapons outside their homes outside the City. Asserting that the ordinance unconstitutionally interfered with their right to "keep and bear arms", they sued the Big Apple.

Both the federal court in Manhattan and the Second Circuit upheld Gotham's local ordinance. When the gun owners' petition for certeriorari was granted, our nation took note. Today, both sides argued before our High Court.

One of the first hurdles for the gun owner's this morning was the inconvenient fact that NYC amended its ordinance, gutting the onerous sections central to the litigation. In appellate terms, this rendered the issue moot; or at least arguably moot. Curiously, when NYC advised the SCOTUS of the amendment this summer, asking for a dismissal, the High Court declined to do so, scheduling the oral arguments for today.

Significantly, the mootness component of the New York case may give the SCOTUS the perfect cover to avoid a contentious 5-4 plurality on the hot-button issue of gun control. If the Court finds that the amendment rendered the gun ordinance constitutional, then there will be no merits decision or analysis of the Second Amendment.

According to the professional court watchers, the justices spent precious little oral argument time addressing whether NYC's former ordinance actually violated the Second Amendment. One clue from the Court's liberal wing arose when Justice Sonia Sotomayor characterized Heller's standard of determining whether the gun restriction was consistent with the "text, spirit and tradition" of the Second Amendment, was a "made-up" standard. On the other end of the SCOTUS spectrum, Justices Neil Gorsuch and Samuel Alito were focused on keeping the case from getting dismissed, and getting to the merits of the gun restriction.

As the case goes to conference over the next few months, the internal debate will, no doubt, involve gun control in the light of America's protracted epidemic of gun violence, shooting rampages, and weapons-based mass murder. This blog touched this nerve about a year ago in this post on "assault rifles"; the post resulted in dozens of lively comments on both sides of the issue.

We here at the Law Blogger will monitor the case and keep our readers posted. If the Court decides to address the merits of the case, an anxiously-awaited decision will be released in late May or June.  Otherwise, expect a one paragraph mootness dismissal with Justices Gorsuch and Alito writing separately.

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Post #627

Given the regularity of mass shootings in the U.S., with their attendant state law reactions banning certain assault-style weapons, someday soon there will be a petition for certiorari granted by the SCOTUS to take yet another look at one of our bedrock individual liberties. The last time the high-court considered the merits of a Second Amendment right to bear arms case was back in 2010.

SCOTUS set the legal agenda relative to the right to bear arms in its 2008 District of Columbia v Heller decision. In that case and in McDonald v City of Chicago, Justice Antonin Scalia struck local ordinances banning handguns.

These cases, however, left open the question of what standard should be imposed in reviewing the constitutionality of state hand gun laws. The so-called intermediate standard requires that a state hand gun law be "substantially related to an important government interest". A lesser standard merely requires that gun laws be reasonable and bear a rationale basis to the state's interest in their regulation.

Second Amendment advocates prefer the "strict scrutiny" standard of review. This standard presumes the state law is invalid unless the state satisfied a burden to demonstrate a "compelling state interest" to justify the policy on which the gun law is based.

Over the decades, three principles of jurisprudence have emerged relative to the Second Amendment. First, there is no such right to unlimited gun ownership. In his Heller opinion, Justice Scalia stated that not all weapons are protected under the Second Amendment such as "weapons that are most useful in military service—M–16 rifles and the like."

Second, courts addressing gun law cases in the modern era of monthly, if not weekly, mass shootings, will draw from the principled regulations laid out in the Heller case. These principles include: a general ban on assault or military grade weapons; required child protection devices such as trigger locks; banning classes of individuals such as convicted felons and the mentally ill from gun ownership; and universal registration requirements.

As has been demonstrated by past decades of mass shootings, however, nearly every one of these laws, both federal and state, are broken by a  murderous shooter. With shocking ease, the mentally ill person, the terrorist, or the felon, wind-up at a gathering of many many innocent people, gun in hand, ready to deal-out death to everyone in range.

Third, with the absence of a clear ruling by the SCOTUS adopting a specific standard to review state gun laws lower appellate courts will have continued influence in shaping this area of law.

In this regard, we take note of a recent en banc decision coming from the 4th Circuit Court of Appeals. In the wake of the Sandy Hook tragedy, where first graders were shot to death, Maryland passed a comprehensive package of laws totally banning assault rifles. In the decision upholding this package of tough gun laws, the 4th Circuit took a significant step in establishing precedent and providing a gun control guidepost for the other circuit courts of appeal across the nation.

Kolbe v Hogan was decided by the entire 4th Circuit bench and holds that state gun laws are reviewed under the [more lenient] "intermediate scrutiny" standard. This means that the state gun law is more likely to withstand the so-called "intermediate" scrutiny. The first three-judge panel of the 4th Circuit -the panel originally assigned to decide the case- struck the Maryland law by utilizing the "strict scrutiny" standard.

Gun advocates will curse the decision. Consider, for example, this well-thought-out Op Ed piece from the Washington Post's Voloch Conspiracy. Of interest to Second Amendment proponents, this piece draws a technical distinction between military weapons and assault-style automatic weapons like the long-infamous AR-15.

America must await another Second Amendment case for SCOTUS to finally weigh-in on the proper standard under which state gun laws should be reviewed. Interestingly, last month the SCOTUS declined to hear the Kolby case.

Will tougher gun laws prevent mass shootings? Unfortunately, we here at the Law Blogger say, probably not. But it's a start.

We base our pessimistic view on the ease with which anyone can acquire an automatic weapon, both seller and purchaser violating laws without a thought. Youtube has featured several recent individuals demonstrating how easy it is to purchase an assault weapon and plenty of ammunition to go along with it.

A decade ago, Australia passed laws that struck at the root of their gun violence epidemic; the government confiscated assault rifles and banned their manufacture and importation. Going after the source of the gun problem -the manufacturers- in this country will ignite a massive legal battle on the level of slavery, abortion, civil rights, and marital equality. We're a long way off from that here in America.

Over here at the Law Blogger, we'll be searching for that case. And while we search, and monitor and wait for the right case to come along, we'll be hoping that none of us come across a deranged killer with a locked and loaded assault rifle like so many of our children do.

Post #616
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Yesterday, the Michigan House passed, by a 59/49 vote, a new gun law that demotes the once-required concealed pistol license to an optional certificate; a training and safety measure only.

The new law allows citizens to carry a concealed pistol without a license. No more worries for the "open carry" crowd, when a coat or a sweatshirt inadvertently covers the weapon, thereby creating felony exposure.

Lee Chatfield [R-Levering], who sponsored the legislation, asserted the basis of the legislation was that criminals were never bothered with following the gun permit laws anyway. According to its mostly Republican sponsors, the legislation is designed to provide law abiding citizens with the same rights and opportunities to bear concealed weapons.

Similarly, Jim Runestad [R-White Lake] said the new law repeals unnecessary criminal sanctions for when an overcoat covers the weapon of an arms-bearing individual. This was known as the "coat tax" among gun rights advocates.

Gun laws come and go. Even considering the Second Amendment, the manner in which one bears arms will always be regulated to a certain extent, with high criminal penalties for transgressions.

Just as the new law was passed in the state legislature, the Michigan Court of Appeals upheld a law that allows the University of Michigan to ban guns on all of its campuses. Ann Arbor has always been a league leader in blazing its own legal trail. Decriminalization of pot in the 1980s -at the height of the drug war- and the UM admission policies reviewed by the SCOTUS both come to mind.

The training involved in handling and storing a weapon safely is crucial to the process, especially when the overwhelming majority of gun owners are law-abiding citizens.

Post #595

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Today, the last day of the term, the SCOTUS announced its 6-2 decision in Voisine v United States which expanded a federal firearm prohibition to include crimes of domestic violence. The consolidated cases, from Maine in the 1st Circuit, tested the scope of the longstanding "felon in possession" laws that disqualify convicted felons from possessing firearms.

Domestic violence is a misdemeanor in Maine as it is here in Michigan and in the majority of states. Justice Elena Kagan wrote the opinion, focusing on the definition of mens rea and the "use of force". The Court expressly adopted the Model Penal Code definitions of the criminal mental state, expanding that definition to include reckless conduct.

This case once again pits the ever-roving intersection between federal and state laws. Mr. Voisine's state law conviction of domestic violence was the predicate to the federal firearm charge; a charge based on a 1996 extension of the federal firearm prohibition.

In Voisine's case, while on probation for a domestic assault, the state learned he possessed a rifle. His ineligibility to do so led to federal charges. In a very well-written opinion, Justice Kagan illustrates examples of a reckless mens rea in the domestic relations context.

When a spouse throws a plate against a wall in anger near the other spouse, for example, the mens rea is reckless. And this is enough to render someone convicted of such a misdemeanor ineligible to possess a firearm.

An interesting dimension to the case is Justice Clarence Thomas' dissent raising a Second Amendment constitutional issue that was not briefed in the case. [Note: this was the case where Justice Thomas asked questions during oral argument for the first time in over a decade.] Justice Thomas asserted that the Second Amendment is treated "cavalierly" when this right -the right to bear arms- can be lost for a lifetime due to a "reckless misdemeanor conviction".

Post #546

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As appellate lawyers, we here at the Law Blogger appreciate the importance of solid cogent and logical oral argument. Oral arguments are the opportunity for the lawyers, after filing briefs, to explain their case to the panel of judges.

As SCOTUS watchers, we have noted that conservative Justice Clarence Thomas, since his appointment by George H. W. Bush in 1991, has rarely posed questions to the lawyers during argument. His decade-long stretch of silence was broken during oral argument last month on a Second Amendment case.

Not only did Justice Thomas break his silence, he posed a series of questions to the lawyers on a case that posed the question whether a misdemeanor domestic violence conviction should bar someone from the possession of a firearm for the rest of their life.  The last time Justice Thomas posed a question from the bench, it was February 2006 in a death penalty argument.

Justice Thomas has stated his reasons for not pipping-up from the bench. He believes many lines of questioning during oral argument are inappropriate; adding nothing to the substantive issues of the case and being more about a judge showcasing his or her own jurisprudential world view.

One high-profile justice, a good friend of Justice Thomas with a seat adjacent to his on the SCOTUS bench, the recently-departed Justice Antonin Scalia, reveled in questioning the lawyers during oral arguments. As a fellow conservative jurist, Scalia was the extrovert to Thomas' introvert.

Here in Michigan, many appellate practitioners are vocal about doing away with the oral argument tradition. The primary thrust of the argument is that it really does not add much to the decision-making process while consuming a disproportionate level of judicial and attorney resources.

The counterpoint is that oral argument presents the only opportunity for the judges deciding a case to question the lawyers about their reasoning and legal analysis; to better inform the judges about the case they are going to decide.

Having Justice Thomas ask a question is so rare, the event received front-page treatment on the NYT. His questions also spawned legal commentary about the efficacy of oral arguments in general; here is the link to the SCOTUSBlog post on the subject.

Post #533

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Nearly half a million persons legally carry concealed weapons here in Michigan.

On December 1st, a new state law governs how concealed pistol licenses are issued in Michigan. County gun boards [consisting of the sheriff, prosecutor and a state police representative] are out; county clerks are in.

While Michigan has been considered a "shall issue" state, the county gun boards did have some discretion in the issuance of the concealed pistol license. Under the new law, provided an applicant meets the requirements -taking the concealed weapons course, age requirement, and no protection orders or felony convictions- a license must be issued.

"Shall issue" states are states that have adopted gun laws that call for administrative licensing provided that specific requirements are met; "may issue" states have laws that grant the licensing authority some discretion in the issuance of a permit. Over the last quarter century, the overwhelming trend across the nation has been the adoption of "shall issue" concealed permit laws.

In 2014, just over 2000 applications for concealed pistol licenses were denied. Of those, 349 have been denied upon a determination by the gun board that the applicant was a danger to himself or to others.

The Second Amendment has survived intact, without erosion from the court system, for well over 200-years. Over the past decade, however, the weekly public shootings that erupt in random locations across the country have brought increased scrutiny to the hallowed "right of the people to keep and bear arms".

We have heard that the NYT is planning a weekend editorial on the front page addressing the "epidemic" of gun violence in America; its first front page editorial since 1920. Gun violence is one of those touch-button issues on which people are deeply and intractably divided, and on which there is no likelihood of consensus; not in the public and not in Congress.

The rapidly increasing body count will not serve to fashion a consensus on this issue.

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Post #508

Tasers and stun guns are not just for law enforcement anymore. At least so says the Michigan Court of Appeals in a Taser case that arose out of Bay County Circuit Court.

Several years ago, our law firm represented a woman on appeal that was convicted of possession of a Taser. She would shoplift from retail stores and then, when she was ultimately chased-down and confronted by the loss prevention staff, or the unsuspecting employees of the store, she would fire-off her Taser.

Her convictions for retail fraud and assault were affirmed. But we're not so sure that her conviction for possession of a Taser would stand today.

That's because three years ago, the Michigan Court of Appeals decided People v Yanna, which invalidated our state statute making possession of a Taser or stun gun illegal. The Court of Appeals panel held that the statute was an unconstitutional violation of our right to carry and bear arms.

Fast forward three years, and we have the age-old concerns of gun control bumping-up against the constitutional right to bear arms. The conflict has played out in the national media with shooting massacres that erupt seemingly every month, and with police conduct under more scrutiny than ever before.

The Yanna panel had no problem defining a Taser or stun gun as an arm under the 18th Century definition of that term. The scope of the definition includes, "any weapon of offense or armor of defense." There is certainly no reason why a weapon of non-lethal force should not be included within that definition.

For its part, the Bay County Prosecutor asserted that Tasers were ill-suited for lawful defensive purposes; that they can be used to torture someone or to incapacitate an unsuspecting individual [like the loss prevention staff in our case]. When it comes to the Second Amendment and its Michigan constitutional counterpart, such an argument is unavailing and unpersuasive.

As the Court of Appeals noted, any weapon can be used to torture and maim; this is the nature, essence and potential of the thing. While we here at the Law Blogger do not have a problem with the inalienable right to bear arms bestowed upon each of us through the Second Amendment, we do look askance at how our fellow citizens are abusing this right by procuring guns for the sole purpose to kill innocent people.

The Second Amendment contains a very large assumption that weapons will be wielded purposefully and with just and proper cause. In today's world, as we see every day, that's a huge leap of faith.

We're beginning to think that it may be an intractable problem destined to be a prominent feature of America's legacy.

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Although we have not done so lately, this blog has posted on Supreme Court cases testing the scope and parameters of the Second Amendment.  The right to bear arms is one of those bedrock principles in our constitution that many citizens hold to be as sacred as our First Amendment right to free speech.

Two years ago, we tracked a piece of legislation addressing Michigan's "open carry" law in this post.  Then, the issue was Governor Snyder's veto of expansive gun legislation in the wake of the Newtown, CN school massacre.

There is a so-called "loophole" in Michigan's gun laws which allows someone with a valid concealed pistol license to "open carry" a weapon on school grounds.  Guns are otherwise banned on school property.

Today, the open carry "loophole" is back in the news as gun activists have staged incidents this week involving the display of their weapons in and around public schools; one incident was in Ann Arbor and the other was in Madison Heights.  Both events caused grave concern among school administrators and local law enforcement and drew plenty of media attention.

Twice this week at Lamphere High School, a gun-toting activist -an unemployed former Marine- attempted to enter school grounds but was rebuffed by the Madison Heights PD.  He sported a rifle slung on one shoulder, holstered a semi-automatic pistol, and had a video camera to record the ruckus strapped to his chest.  For their part, school administrators, taking no chances, locked down the high school during the two incidents.

Meanwhile, at Ann Arbor's Pioneer High School, a gun activist attended a school concert with a pistol strapped to his side. This led to a packed meeting of the Ann Arbor school board and the passage of a strongly-worded resolution calling for legislators to close this loophole.

In our free society, there are always going to be individuals that test the limits of our rights. With all of the school shootings that have occurred over the past few decades, these recent events highlight the intersection between basic school safety and our constitutional right to bear arms.

We here at the Law Blogger believe that, considering the hundreds of children that have been shot at, wounded and killed at their schools, perhaps our state legislature should act to close this loophole. We believe that public safety concerns outweigh the right to bear arms on school grounds and that these valid concerns justify a properly tailored restriction to the open carry laws.

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We here at the Law Blogger [the attorneys of Clarkston Legal, also known as Karlstrom Cooney] would like to thank our loyal readers and those that follow this blog.

This is our 300th post.  Three hundred: a perfect game in bowling; an excellent batting average in the bigs; the length of Noah's Arc, in cubits, and one of this blogger's favorite movies.

We started this blog with our first post back on March 30, 2009, on the topic of a lesbian couple litigating their right to adopt a child here in Michigan.

In the four years that we've been up and running with the Oakland Press, there have been almost 160,000 page views and we've received 438 published comments.  Minor league stats in the overall blogosphere, but hopefully relevant to our local readers.

In these years we have attempted to post interesting law-related information that our readers find useful and informative.  Some of the more important topics we've covered in our posts include:

• cell phone use and texting while driving, especially where teenagers are concerned;
• the "Superdrunk" driving law;
• same-sex marriage cases from their initial filings through the recent oral arguments at SCOTUS;
• privacy laws in the Big Data era;
• Second Amendment cases at SCOTUS;
• Obamacare at SCOTUS and now that the new laws are scheduled to take effect in the workplace;
• divorce and family law developments, especially child custody matters;
• the juvenile lifer laws recently decided by SCOTUS;
• significant developments in the criminal law; and
• occasionally, high-profile cases and local personalities that have intersected with the legal system or criminal justice system.

Before we begin work on our next 300 posts, we would like to also thank the Oakland Press and its editorial staff for their support and encouragement over the years.

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There is a little-known loophole in our gun laws that allows a person that has a concealed pistol license (CPL) to openly carry a firearm into a school, provided the weapon is visibly holstered.  Given recent headlines, State Representative Andy Schor, (D Lansing), is attempting to close this loophole with House Bill 4104.

Hopefully, these terrible headlines will render the state gun lobby ineffective, and HB 4104 gets passed and signed by Governor Rick Snyder.  Who could forget last December when the Governor, on the eve of the Newtown, Connecticut shooting, was poised to sign gun legislation that would have broadened and strengthened weapon possession laws, but had a change-of-heart and vetoed the bill.

The open-carry in schools exception came crashing into the media headlights last February when Nicholas Looman, a CPL holder, open carried his pistol into an elementary school in Grand Rapids in order to vote in an election.  He was allowed to vote, then escorted off school grounds and later briefly detained.

Obviously, the 25-year old was looking to make a point.  In the end, the Kent County Prosecutor took a pass on prosecuting Looman, saying he technically complied with state law.  A CPL holder can open-carry a weapon in a public school, day care center or public hospital provided the weapon is visible.

With the recent national headlines as a backdrop, the gun debate has been renewed in Lansing.  Schor's proposed legislation is competing with a senate proposal sponsored by Senator Mike Green (R-Mayville).  It was Senator Green's bill (vetoed SB 59, which now has been re-introduced as SB 112) that was sitting on Governor Snyder's desk when the Newtown shootings broke-out.

We here at the Law Blogger cannot help but conclude that when we enter certain public places, such as schools, day care centers and hospitals, we just need to leave our guns at home.  Along these lines, we hope that Representative Schor's bill will pass the Legislature and be signed by Governor Snyder, and that Senator Green and company goes away.

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State Senator Mike Green (R-Mayville) must love guns.  He has sponsored yet another set of sweeping expansions to Michigan's concealed handgun laws.  If Green's bill was signed by Governor Snyder, concealed weapons would have been allowed in some places where they were never legal before; like schools, churches, and large entertainment venues.

Senator Green is also the sponsor of the gun reforms of 2001, making weapons permits generally easier to procure for adults.  The Second Amendment is alive and well here in Michigan.

The bill would have abolish the county gun boards, in place since 1927, to streamline the application process.  County sheriffs would have reviewed and would have the sole authority to approve all applications.  Interestingly, the bill places a premium on issuing the permit to a qualified applicant quickly, mandating a partial application fee refund if not processed in accord with a specific time frame.

While the university would have remained a "gun-free zone", churches and other schools would not; nor do large  entertainment facilities.  I don't know about you, but I would not want to be at Ford Field or the Big House, when some drunk folks take out their weapons to settle a score.

In touting his pet legislation, Senator Green emphasized that that Michigan will now have the strongest training standards in the nation.  Well, those of us over here at the Law Blogger will certainly sleep better at night knowing that our neighbors that have applied for concealed pistol licenses are well-trained in their use and deployment.

Also, we wonder about the correlation between the training in the use of handguns and the method of use.  In other words, does better training reduce the criminal use of the weapon?  We think not.

The Second Amendment is alive and well in our country; perhaps as it should be.  But folks, Governor Snyder surely got this one right.  Frankly, the county sheriff and the county gun board both need their collective eyes on all applicants for concealed weapons permits.

Also, concealed license holders should have their identity made public in a central registry.  We'd like to know who among us is packing heat.  It's getting to a point where you just have to assume that everyone does.

On the other hand, we are mindful of weapons proponents that assert that the tragedy in Newtown, Connecticut may have been prevented if the principal or one of the teachers were armed.

Now there's a swell concept: armed teachers.

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Otis McDonald grew tired of the pattern of intimidation brought to bear upon him by some of the drug-dealing urban youth of his Chicagoland neighborhood.  At times, they would curse him and brandish their weapons just a few feet from his porch in Chicago's Morgan Park.  According to McDonald, some of these "punks" even threatened to "put him down."

Consequently, McDonald sought to even the odds by acquiring a gun, even if it meant he had to violate Chicago's anti-handgun ordinance to do it.

The 76-year old South-side Democrat, a retired grandfather and journeyman building engineer, who spent his career at the University of Chicago after serving in the military, is the petitioner in a case up for oral argument today at the United States Supreme Court.

An unlikely advocate for the right to "bear arms", at least in the organized sense, McDonald is not a card-carrying member of the NRA.  That group, however, will join him today in addressing the High Court and requesting that the handgun ban be struck down as unconstitutional.

This Blog has been tracking the case, as some of the high-crime issues underpinning Chicago's handgun ban are relevant to the communities of Southeast Michigan.  One of our earlier posts covered the lawyers arguing the case today.

There seems to be a consensus among legal professionals that Chicago's ordinance is likely to be declared unconstitutional.  Today, the City of Chicago, through it's retained Washington D.C. appellate lawyer, is expected to argue the safety interests such a ban serves in high-crime areas.

The consensus among High Court watchers that the handgun ordinance will be struck is based on the Court's recent decision striking-down a similar anti-gun law in the nation's capital.  The Supreme Court's decision in District of Columbia vs Heller, however, does not apply to the states since it arose in the District.

There are many reasons Americans feel a deep-rooted sense of righteousness when it comes to our right to possess and carry firearms.  It's in our historic genes; our national tradition.  Otis McDonald, on the other hand, acquired his taste for the right to bear arms out of good old-fashioned necessity.  In order to feel safe in his own crime-ridden neighborhood and to protect his family from local thugs, he armed himself in transgression of Chicago's gun ordinance.

As a result, Law Professor Nicholas Johnson of Fordham University claims that Otis McDonald will be immortalized as a litigant in one of the rare cases that becomes common knowledge among our citizenry and stands for a single proposition; in this case, the right to bear arms.

Local Connection:  Michigan Attorney General Mike Cox joined the NRA in filing an amicus brief in Otis McDonald's case.

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Chicago's deputy corporation counsel in charge of appeals, Benna Solomon, has a schedule that is crowded with U.S. Supreme Court arguments.  So much so, she recently went beyond the city's law department to hire Washington DC solo appeals specialist James A. Feldman; a rare engagement, she says.

At stake is the oral argument scheduled before the high court on March 2 in the Second Amendment case of McDonald v City of Chicago.  The case, a subject of a prior Lawblogger post, tests a strict Chicago handgun ordinance in the context of the Second Amendment's applicability to the states via the Due Process clause.

The McDonald case has received much attention.  The Supreme Court's decision will be greatly anticipated by both opponents and proponents of the right to bear arms set forth in the Second Amendment to the United States Constitution.

The reason Chicago's Ms Solomon opted out of arguing the case herself is because she will be appearing in the Supreme Court the week before, to argue another case on behalf of the city.  She therefore looked to Feldman, who had done previous work with the city, and who's reputation as an experienced oral advocate at the highest level apparently preceded him.

Both Solomon and Feldman clerked at the high court for Supreme Court justices; Solomon with Justice Byron White, Feldman with Justice William J. Brennan, Jr.  Feldman also argued cases before the Court during his long tenure with the United States Solicitor General; the litigator for the United States Government.

Arguing on the other side will be Alan Gura, also of Washington DC, who won the District of Columbia vs Heller case on behalf of gun advocates.  Because it arose in the District, Heller involved federal gun laws and the decision striking down the gun ordinance therefore does not apply to the 50-states.  Gura will be sharing the podium, and his precious oral argument time with former U.S. Solicitor General Paul Clement, who will be arguing on behalf of the NRA.

Stay tuned for the decision on this one as it will affect how states can regulate our right to bear arms.

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Nearly a decade post-9/11, the forgotten amendment of the U.S. Constitution, the Second Amendment's right to bear arms, may gain some ground here at the beginning of the 21st Century.  Several state attempts to erode this right have been subjected to successful constitutional challenges.

The United States Court of Appeals for the District of Columbia, in Robert Ord -v- District of Columbia, reversed a trial court's dismissal of one such gun owner's challenge, remanding the case back to the lower court for further proceedings.

Robert Ord, a licensed investigator, also licensed to carry a weapon in Virginia, will now be able to develop his case; a case that asserts that the mere threat of prosecution in nearby District of Columbia, where he frequently works, constitutes damages.  One interesting aspect of this case is that Ord was never arrested, nor were his weapons seized.  He claims the objectionable government action was the issuance of a warrant; a warrant Ord claims was obtained by the police in bad faith.

This spring (March 2010), the United States Supreme Court will hear oral argument in a gun-ordinance case from Illinois, McDonald -v- Chicago.   Michigan's Attorney General recently filed an amicus brief in the case.  In the Chicago gun case, the issue for determination by the Supreme Court is whether the Second Amendment is incorporated (thus applicable) to the states through the Fourteenth Amendment's Due Process clause such that Chicago's gun-ordinance banning guns in private homes is unconstitutional. 

A good primer on this age-old issue can be found on the official blog of the U.S. Supreme Court; known as SCOTUS.  The high court's blog post surveys the historical context of the Second Amendment with a focus on the modern ordinances and state laws that attempt to limit gun possession due to it's correlation with violent crime.

The high-court petitioner(s) in these gun cases are citizens claiming a constitutionally-protected right to bear arms. They assert that the state cannot unreasonably restrict this right with its laws or ordinances.

These cases pit the power of the government against the fundamental liberty interests of the individual.  The tension between the two continues to be the glue of our Democracy, just as it was in colonial times when these concepts were debated in Philadelphia, Boston and Washington.

In the decade since 9/11, various powers of the federal government have expanded under President Bush. At the state level, however, the individual right to bear arms may hold ground. The McDonald and the Ord cases are crucial milestones for the highly revered Second Amendment.

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