TFA Member Hal Rounds on Safe Harbor and DA Dunavant
Posted: Mon Apr 14, 2008 9:03 pmHal is an attorney, constitutional scholar and TFA Member. Like me, Hal was there when District Attorney Mike Dunavant addressed TFA as a supporter of gun owners, and specifically carry permit holders in Tennessee. With all due respect to DA Dunavant, the statement by the Tennessee Public Safety Coalition, of which he is a member of and signed the statement, lobbying against our restaurant and parks bills was without any evidence to support their criticism. Below is Hal's well researched and stated analysis of both the appeals court ruling, highlighting the weakness of our current safe harbor law, and letter to DA Dunavant responding to his rationalizations of current gun restrictions.
We are blessed with many fine minds in TFA. Thanks to all of you who care enough about our freedoms to get involved. There is much work to do here.
In Liberty,
Patriot Pat
From Hal:
Hi. I read the case opinions and technically, the court did it right, in my opinion. The problem we face is that the statute does not use terms in a way that prevents this procedural sequence. It appears to me that the appeals court agreed that the final finding would be one of innocent, but that, once an indictment is entered, the trial court cannot dismiss it on the facts without first "trying" the facts.
I do wonder, however, if the defendant can sue the prosecutor for entering the charge/seeking the indictment, because the statute does prohibit doing so, and thus it was outside the prosecutor's authority. Generally, prosecutors have discretion whether to prosecute or not, but this statute removes that discretion. So charging Clark could be a chargeable offense, making the prosecutor liable for the damages that result.
Regarding an earlier matter - the support of various prosecutors for Naifeh's tyranny, I sent basically a plagiarization of Sam Cooper's letter to Mike Dunavant, our district DA. He noted my plagiarism, and argued that he had done the right thing, posing the usual anti-gunner's "wild west" scenario as the reason.
I followed up thus:
-------April 10, 2008
Mike Dunavant District Attorney General
Fayette, Hardeman, Lauderdale, McNairy and Tipton Counties
675 Highway 51 South Ripley, TN 38063
Dear Mr. Dunavant:
I received your letter of March 27th, and I want to let you know that the effort and time you obviously put into it reaffirms my initial impression that you are conscientious and sincere. Thank you for taking my objections seriously.
I did indeed plagiarize much of my letter from one sent by my friend, Sam Cooper. This letter will be entirely my own.
In analyzing the Second Amendment, it is apparent that the restraint the Founders put on any form of restraint on keeping and bearing arms is remarkable. By comparison, the restraint on government interference with religion, free speech, assembly, etc. is limited to forbidding Congress from passing any law with that effect. But the right to keep and bear arms is, without limitation, not to “be infringed.†To the simple readers who ratified the Constitution only on the condition that a Bill of Rights would be added, a series of limitations on government behavior, these words plainly mean that the outer fringes of the right shall not be encroached upon; not by Congress, not by the Executive, and not by the Judicuary. And it does not limit the restraint to the Federal Government. It also restrains the States: The Tenth Amendment follows this protection, and is thus subordinate to it.
I sympathize with the fearsome prospect this presents to law officers and prosecutors. But the founders made this choice over any suppression of the right in any form. When you swore to defend the Constitution, as I have, you accepted this charge.
I know my analysis does not comport with the hedging and excuse-laden encroachments on the Second Amendment made by our three branches of government at Federal State, and Local levels; but the words that lay plainly on that old piece of paper are unmistakable to anyone who is simply reading it. And my forbears were here, constituents of the representatives who ratified it, when Tennessee was still part of North Carolina.
That is the Constitutional analysis. Let’s look at your examples.
“Obvious public safety reasons†can be argued to prohibit any possession or use of any instruments that could cause harm anywhere. It is a political excuse, not a reason.
The point of carrying a weapon of any type, firearm, knife or club, can be to accomplish aggressive acts, defensive ones, as a precaution, or even as an act of forgetfulness. The result will be determined not by the instrument, but by the intent of the person wielding it.
You have listed the places where permit holders are denied the legal power to keep their arms, and it is an interesting list. Schools? One thinks of Virginia Tech and Columbine. Correctional facilities? So the rumors of jail murders and violence are mere urban myth? Public parks? What was that I read recently about the bike riders who were mugged in Bartlett a month or two ago? Judicial proceedings? Remember the lawyer shot in Memphis a couple of years ago? And places where alcohol is served? Goodness, you are the source of my examples in this scenario. The “Bombay Café?†“The Farm?â€
What do all these scenarios have in common? Guns are prohibited. Violence is perpetrated. Legislatively disarmed victims are maimed or dead. Am I missing something here?
You specify gun-related violence, but I know clubs and knives do not exempt the perpetrators who use such items as weapons. They are only immune from the charge of carrying. Gun owners are not.
You suggest that your position holds you responsible for prosecuting those who perpetrate violence. It is interesting that you avoid accepting responsibility, on behalf of the government or personally, for actually protecting the prospective victims. Calling 911 isn’t much help, is it?
I have proposed legislation which will hold persons or institutions which deny any citizen the right to bear defensive instruments responsible for any harm due to criminal activity or other events which could have been thwarted by use of the prohibited defensive tool. (Mad dogs, etc.)
By denying a citizen the right to bear instruments that will enable him to defend himself against foreseeable harms, you have created a custodial relationship which levies upon you the duty to protect, and the liability for any failure to do so.
Your position compels the conclusion that you feel those who go to a place where alcohol is served have forfeited the right to defend themselves. I really don’t agree, and you find that perplexing. I rarely see brawls in O’Charley’s or the Olive Garden. But your position makes me and my family vulnerable in those places. I personally do not drink, but I like their food. But I’m the bad guy you are protecting everyone against while I enjoy the garlic breadsticks? Only vampires have anything to fear while I’m in the restaurant. (Until you and Naifeh ban garlic?)
Or in the parking lot heading back to my car. Just like the victims at “The Farm†and “Bombay Café,†who were not actually in the establishment, but were in parking and entry areas. Guns were not arguably prohibited there, but the act of entering the establishment compelled the law-abiding victims to abandon any weapons they might have had. And the prohibition you support made it a safe bet for the assailant. It was like shooting fish in a barrel.
Even the drinker deserves the opportunity to defend himself. I am curious if you have any statistics that compare the total number of patrons to bars and restaurants to the number of violent acts? What gazillionths of a percent commit a violent act? Does that frequency justify the compelled defenselessness of all the others? Does the possession of a weapon increase the frequency of the violence? I am under the impression that permitted gun carriers generate a disproportionately low volume of the crimes you have to prosecute. Am I right?
It is argued by the anti-gunner governmentalists that possession and carrying will lead to unlimited outbreaks of Baghdad-like chaos. We have seen that this has not happened. I liken the possession of guns to the possession of fire extinguishers. How often have you seen a reasonable, calm citizen who obtains a fire extinguisher suddenly run with demented fury from room to room, squirting all the light bulbs and other heat sources?
Again, I respect your sincerity and dedication. Its just that you are wrong on this. As Supreme Court Justice Louis Brandeis wrote in 1928, Olmstead vs. United States:
Experience should teach us to be most on our guard when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasions of their liberty by evil minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.
Sincerely
Hal Rounds
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We are blessed with many fine minds in TFA. Thanks to all of you who care enough about our freedoms to get involved. There is much work to do here.
In Liberty,
Patriot Pat
From Hal:
Hi. I read the case opinions and technically, the court did it right, in my opinion. The problem we face is that the statute does not use terms in a way that prevents this procedural sequence. It appears to me that the appeals court agreed that the final finding would be one of innocent, but that, once an indictment is entered, the trial court cannot dismiss it on the facts without first "trying" the facts.
I do wonder, however, if the defendant can sue the prosecutor for entering the charge/seeking the indictment, because the statute does prohibit doing so, and thus it was outside the prosecutor's authority. Generally, prosecutors have discretion whether to prosecute or not, but this statute removes that discretion. So charging Clark could be a chargeable offense, making the prosecutor liable for the damages that result.
Regarding an earlier matter - the support of various prosecutors for Naifeh's tyranny, I sent basically a plagiarization of Sam Cooper's letter to Mike Dunavant, our district DA. He noted my plagiarism, and argued that he had done the right thing, posing the usual anti-gunner's "wild west" scenario as the reason.
I followed up thus:
-------April 10, 2008
Mike Dunavant District Attorney General
Fayette, Hardeman, Lauderdale, McNairy and Tipton Counties
675 Highway 51 South Ripley, TN 38063
Dear Mr. Dunavant:
I received your letter of March 27th, and I want to let you know that the effort and time you obviously put into it reaffirms my initial impression that you are conscientious and sincere. Thank you for taking my objections seriously.
I did indeed plagiarize much of my letter from one sent by my friend, Sam Cooper. This letter will be entirely my own.
In analyzing the Second Amendment, it is apparent that the restraint the Founders put on any form of restraint on keeping and bearing arms is remarkable. By comparison, the restraint on government interference with religion, free speech, assembly, etc. is limited to forbidding Congress from passing any law with that effect. But the right to keep and bear arms is, without limitation, not to “be infringed.†To the simple readers who ratified the Constitution only on the condition that a Bill of Rights would be added, a series of limitations on government behavior, these words plainly mean that the outer fringes of the right shall not be encroached upon; not by Congress, not by the Executive, and not by the Judicuary. And it does not limit the restraint to the Federal Government. It also restrains the States: The Tenth Amendment follows this protection, and is thus subordinate to it.
I sympathize with the fearsome prospect this presents to law officers and prosecutors. But the founders made this choice over any suppression of the right in any form. When you swore to defend the Constitution, as I have, you accepted this charge.
I know my analysis does not comport with the hedging and excuse-laden encroachments on the Second Amendment made by our three branches of government at Federal State, and Local levels; but the words that lay plainly on that old piece of paper are unmistakable to anyone who is simply reading it. And my forbears were here, constituents of the representatives who ratified it, when Tennessee was still part of North Carolina.
That is the Constitutional analysis. Let’s look at your examples.
“Obvious public safety reasons†can be argued to prohibit any possession or use of any instruments that could cause harm anywhere. It is a political excuse, not a reason.
The point of carrying a weapon of any type, firearm, knife or club, can be to accomplish aggressive acts, defensive ones, as a precaution, or even as an act of forgetfulness. The result will be determined not by the instrument, but by the intent of the person wielding it.
You have listed the places where permit holders are denied the legal power to keep their arms, and it is an interesting list. Schools? One thinks of Virginia Tech and Columbine. Correctional facilities? So the rumors of jail murders and violence are mere urban myth? Public parks? What was that I read recently about the bike riders who were mugged in Bartlett a month or two ago? Judicial proceedings? Remember the lawyer shot in Memphis a couple of years ago? And places where alcohol is served? Goodness, you are the source of my examples in this scenario. The “Bombay Café?†“The Farm?â€
What do all these scenarios have in common? Guns are prohibited. Violence is perpetrated. Legislatively disarmed victims are maimed or dead. Am I missing something here?
You specify gun-related violence, but I know clubs and knives do not exempt the perpetrators who use such items as weapons. They are only immune from the charge of carrying. Gun owners are not.
You suggest that your position holds you responsible for prosecuting those who perpetrate violence. It is interesting that you avoid accepting responsibility, on behalf of the government or personally, for actually protecting the prospective victims. Calling 911 isn’t much help, is it?
I have proposed legislation which will hold persons or institutions which deny any citizen the right to bear defensive instruments responsible for any harm due to criminal activity or other events which could have been thwarted by use of the prohibited defensive tool. (Mad dogs, etc.)
By denying a citizen the right to bear instruments that will enable him to defend himself against foreseeable harms, you have created a custodial relationship which levies upon you the duty to protect, and the liability for any failure to do so.
Your position compels the conclusion that you feel those who go to a place where alcohol is served have forfeited the right to defend themselves. I really don’t agree, and you find that perplexing. I rarely see brawls in O’Charley’s or the Olive Garden. But your position makes me and my family vulnerable in those places. I personally do not drink, but I like their food. But I’m the bad guy you are protecting everyone against while I enjoy the garlic breadsticks? Only vampires have anything to fear while I’m in the restaurant. (Until you and Naifeh ban garlic?)
Or in the parking lot heading back to my car. Just like the victims at “The Farm†and “Bombay Café,†who were not actually in the establishment, but were in parking and entry areas. Guns were not arguably prohibited there, but the act of entering the establishment compelled the law-abiding victims to abandon any weapons they might have had. And the prohibition you support made it a safe bet for the assailant. It was like shooting fish in a barrel.
Even the drinker deserves the opportunity to defend himself. I am curious if you have any statistics that compare the total number of patrons to bars and restaurants to the number of violent acts? What gazillionths of a percent commit a violent act? Does that frequency justify the compelled defenselessness of all the others? Does the possession of a weapon increase the frequency of the violence? I am under the impression that permitted gun carriers generate a disproportionately low volume of the crimes you have to prosecute. Am I right?
It is argued by the anti-gunner governmentalists that possession and carrying will lead to unlimited outbreaks of Baghdad-like chaos. We have seen that this has not happened. I liken the possession of guns to the possession of fire extinguishers. How often have you seen a reasonable, calm citizen who obtains a fire extinguisher suddenly run with demented fury from room to room, squirting all the light bulbs and other heat sources?
Again, I respect your sincerity and dedication. Its just that you are wrong on this. As Supreme Court Justice Louis Brandeis wrote in 1928, Olmstead vs. United States:
Experience should teach us to be most on our guard when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasions of their liberty by evil minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.
Sincerely
Hal Rounds
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