A Loophole for the Lawless: “Qualified Immunity” Must Go

On August 11, 2014, officers from the Caldwell, Idaho Police Department asked for Shaniz West’s permission to enter and search her home. They were looking for her ex-boyfriend. West authorized the search and handed over her keys.

Instead of entering and searching the home, though, the police brought in a SWAT team, surrounding the building.  “[P]olice repeatedly exceeded the authority Ms. West had given them,” a lawsuit she filed complains, “breaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas, destroying most of Ms. West and her children’s personal belongings.”

The “standoff” lasted ten hours. But it wasn’t really a standoff. The only mammal in the home larger than a mouse was West’s dog.

Then the cops went on their merry way, leaving West homeless for two months, with three weeks in a hotel as her only compensation.

She wants more, including the costs of repairing and replacing her ruined personal property, damages for pain, suffering and emotional distress, and punitive damages for the assault on a home she gladly authorized a search of, not an attack on. She deserves all of that.

She isn’t getting it — yet, at least — due to a loophole baked into a vile judicial doctrine called “qualified immunity.”

Qualified immunity protects government employees from liability for things they willfully decide to do while on duty, unless those actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The loophole is the phrase “clearly established.”

The Ninth Circuit US Court of Appeals ruled that “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.”

How’s that for circular reasoning? “You can only sue over X if someone else has previously successfully sued for X. ” And no one CAN have successfully sued for X, at least since the loophole was introduced in 1982, because they would have been turned away on the same grounds!

The Institute for Justice wants the US Supreme Court to take up West’s case.

It should do so, and when it rules it should go beyond nixing the “clearly established” loophole and do away with the doctrine of “qualified immunity” entirely.

42 US Code § 1983 provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” may be sued for damages.

Not just if someone has successfully sued on the same grounds before.

And not just if a “reasonable person” would have known better.

Government employees are supposed to know their jobs, including the limits on their authority. If they don’t, they shouldn’t be given guns and badges, let alone protection from liability when they exceed those limits.

“Qualified immunity” is the opposite of “equality under the law.”

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“Human-Made Weapons”

I recently saw an anti-gun bigot on Quora make the desperate claim that there can be no right to human-made weapons because those weapons didn’t even exist until a few hundred years ago. He doesn’t believe anyone has the right to own and to carry a gun, and is apparently ignorant of human prehistory, as well.

What is so different about a human-made weapon or any other human-made artifact? How does its history bear on this issue?

And does he mean all human-made weapons, or only guns? Does the fact that it is carried instead of being a physical part of the body make the difference?

Does a rock count since it can be used as a weapon without being altered? What of pointy sticks? Or fire? What if I carry an antler with me all the time?– it’s a deer’s weapon.

Humans don’t (generally) grow horns, antlers, claws, hooves, or fangs. People of his sort believe we should be punished for “only” having a brain, instead. A brain that allows us to design, make, and use weapons which don’t grow on our bodies. He’s insane.

Want to bet he still believes there’s a right to health care or justice? Both of those only exist because humans created them– just like guns.

Does he believe you have the right to not be a slave? The recognition of the right to not be enslaved is a relatively recent discovery. Would he toss that one, too, because it’s not “old enough”?

You know he’d whine it’s not the same thing.

And, the fact remains, the real issue is that there is no right to forbid weapons to anyone under any pretext. That “right” doesn’t exist and can’t be created. Not by legislation or majority opinion.

You just can’t reason with bigots. They hate what they hate because they hate it. Politics makes people stupid.

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Operation Fast and Furious: The Forgotten History of the ATF’s Notorious Gunwalking Scandal

The ATF isn’t all bad. In fact, they had a policy of letting illegal gun purchases go between 2006 and 2011. It ended up getting U.S. Border Patrol Agent Brian Terry killed on December 14, 2010, and let Mexican criminals get enough guns that they were found at over 150 crime scenes where Mexican citizens were either killed or maimed. And some of the guns were used in the November 2015 terrorist attack in Paris at the Bataclan. But other than that, it turned out just fine.

(In case you’re not picking up on it, we’re laying on the sarcasm very thick right now.)

You probably know what was officially called “Project Gunrunner” as “Operation Fast and Furious.” Started under George W. Bush, this ATF policy audaciously grew under President Obama and became indicative of the perceived attack on American gun owners by both policy makers and their friends in the establishment media.

It’s one of many scandals of the Obama Administration that was never given as much press attention as, for example, Russia buying Facebook ads about NoFap and Pizzagate. Given that the guns run by the ATF were allowed to kill hundreds and that subsequent Congressional investigations resulted in Eric Holder, President Obama’s Attorney General, becoming the first sitting cabinet member to be held in criminal contempt of Congress ever, this is shocking. At least for anyone still under the illusion that the establishment media is a fair and impartial source of information.

Sit down and get ready to dig into what is perhaps the most egregious scandal of President Drone’s administration – and there’s a lot to pick from.

What Was Project Gunrunner?

Project Gunrunner was a project of the ATF, designed to intercept weapons bound for Mexican criminal organizations. The ATF (the same people who entrapped peaceful, law-abiding citizen Randy Weaver into selling them a single sawed-off shotgun, then pursued him as if he were mounting an armed insurrection, shooting and killing his wife, son and dog) decided to allow straw purchases (which are technically legal, but often involve the crime of providing false information when purchasing a firearm) to happen in the hopes that these purchases would end up in the hands of Mexican criminal organizations.

Yes, really.

The thinking was that, rather than going after crimes considered to be small potatoes, the ATF could focus on bigger fish – organizational gun running in the Southwest and over the border in Mexico. By letting guns purchased illegally to “walk” (i.e., not be prosecuted), the federal government can keep an eye on them, arresting people for much more serious crimes later. That’s the idea, anyway, but the execution ended up being something much different.

Beginning in 2006, the Phoenix Office of the ATF not only allowed, but also facilitated and encouraged, straw purchases of firearms to known weapons traffickers. They then allowed the weapons to “walk” to Mexico. Gun Owners of America has stated that they believe this was an attempt to boost statistics for the ATF, thus securing more funding – most of the funding for this came from $40 million in competitive grants from the 2009 “stimulus package,” which was largely a giant giveaway to large banks.

(Such self-serving actions by the ATF are not unheard of. During the congressional inquiry following the ATF’s siege of the Branch Davidian complex in Waco, Henry Ruth, one of the three independent reviewers from the U.S. Treasury Department, testified that: “The ATF needed good publicity. With its appropriations hearings a week away, a successful raid this size would produce major positive headlines to counter the ATF’s reputation as a rogue agency whose debacles blackened the reputations of other agencies. And it would scare the public enough about fringe groups to create political pressure on Congress to increase its budget.”)

Some legitimate gun dealers objected to being involved in Project Gunrunner, as did some ATF agents, but they were strongarmed into participation by top brass. What’s more, the practices that became associated with Project Gunrunner were in opposition to long-established ATF operating procedures.

Continue reading Operation Fast and Furious: The Forgotten History of the ATF’s Notorious Gunwalking Scandal at Ammo.com.

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Afghanistan: Oh, When Will We Ever Learn?

“U.S. officials failed to tell the truth about the war in Afghanistan throughout the 18-year campaign,” the Washington Post‘s Craig Whitlock reports, “making rosy pronouncements they knew to be false and hiding unmistakable evidence the war had become unwinnable.”

Whitlock bases that claim on a collection of candid, confidential interviews with more than 400 military and political “insiders” conducted by Congress’s Office of the Special Inspector General for Afghanistan Reconstruction.

Not that we really needed “The Afghanistan Papers” to tell us the war was unwinnable.  That was clear from the beginning.  Any mission beyond quick strikes on al Qaeda’s facilities and operators in Afghanistan was doomed to failure.

The idea of taking over the country and making it into a “western democracy” was transparent foolishness. More than one empire has foundered on the rock that is Afghanistan, and the American military adventure there was never going to be the exception.

Nor do “The Afghanistan Papers” tell us anything else we shouldn’t have already known. They merely confirm a lesson we should have learned nearly 50 ago.

In 1971, the New York Times published  the Report of the Office of the Secretary of Defense Vietnam Task Force, better known as “The Pentagon Papers.”

That report, leaked to the press by American hero Daniel Ellsberg, revealed (in the words of the Times‘s R.W. Apple) “that the Johnson Administration had systematically lied, not only to the public but also to Congress,” about the progress and prospects of the US war in Vietnam.

Sound familiar?

War is always ugly. Optional and prolonged wars with nebulous objectives are always built on lies — lies stacked sky-high atop one another for no other purpose than to keep the ugliness going for as long as possible.

Why?

The prettiest answer, and it’s not pretty, is that generals and politicians hate to admit defeat. They can always be relied upon to convince themselves — and try to convince us — that “a corner has been turned” and that “there’s light at the end of the tunnel,” at least until they’ve managed to bequeath the losses to, and blame the losses on, their successors.

The uglier answer is that war is profitable all around for politicians who want to be re-elected, officers who want to be promoted, and “defense” contractors who want to sell more guns, more bombs, more planes, more everything.

It’s not so good for the rest of us, though.

At a conservative estimate, the US government has burned through more than a trillion dollars dragging out the fiasco in Afghanistan. You’re on the hook for that bar tab.

And you’re getting off easy. More than 3,500 “coalition” troops, most of them Americans, and somewhere between 100,000 and half a million Afghans (depending on whose figures you believe) have paid with their lives.

Next time the politicians want to drum up or continue an optional war, they’ll tell us the same lies they told us this time, and last time, and the time before that.

We’ve got to stop believing those lies.

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3D-Printed Firearms and Defense Distributed: A Guide to Understanding “Ghost Guns”

Disclaimer: This guide is intended to be informational only surrounding the topic of ghost guns and 3D-printed firearms. It is not legal advice.

Ever since the landmark ruling on 3D-printed firearms, outrage and moral panic have surrounded so-called “ghost guns.” Whether you’re a proponent of Second Amendment freedoms or just doing opponent research, it’s important to have the facts about what a ghost gun is and what it is not.

It’s also important to know other related terms in the world of firearms – like how is a ghost gun different from a 3D-printed gun? And what is an 80-percent lower? This guide will answer all of your ghost gun questions, and will separate fact from fiction surrounding this polarizing topic.

What Is a Ghost Gun?

Put simply, a “ghost gun” is a catchall term for any firearm without a serial number. There are a variety of ways a person can come to own a firearm without a serial number that do not involve breaking federal law, which generally prohibits the removal of serial numbers but not, however, the ownership of a firearm without a serial number.

It’s not a loophole in the law. The law is specifically written to exclude professional gunsmiths and hobbyists. Even if you own a ghost gun – that you must make yourself – you’re never allowed to sell or transfer it without getting a serial number. In fact, there are a number of procedures in place allowing for amateur gunsmiths to get a serial number for their homemade firearms for precisely this purpose.

What Is a Gun?

To understand the law behind so-called “ghost guns,” it’s important to understand what a gun is under the law. This relates back to the Ship of Theseus problem in philosophy: In this thought experiment, one considers a boat. What about a boat makes it a boat? How much of it may we replace and still be talking about the same object? Does a mast make the boat? The sails? The deck? The hull?

Now apply this to firearms. Is a barrel a weapon? What about a stock? What about the two of them together, but no trigger? Is the trigger alone a weapon? There are a number of combinations to this question: At what point does something stop being a hunk of metal and start being a firearm?

And the various combinations have one answer: A “gun” under the law is a part called the lower receiver. This ceases to be a hunk of metal when it is more than 80 percent finished. Up until that point, you just have a hunk of metal.

What Is an 80-Percent Lower?

Taking the above, we can extrapolate that it is perfectly legal to purchase a hunk of metal that also happens to be an 80-percent finished lower receiver. In fact, there is a small cottage industry dedicated to selling people this very object in an easy-to-process form. These are also known as “unfinished receivers” and “blanks.”

If you want to sell or otherwise transfer the receiver once it’s been finished, you’re going to need a license. However, if you just want to make yourself a weapon – either because it seems like a fun way to spend an afternoon or because you want to own an untraceable weapon – you don’t have to jump through any hoops other than purchasing the lower and finishing it. You don’t have to register it, you don’t have to get it a serial number. You don’t even need to pass the same background check you might otherwise have to.

Unsurprisingly, those selling 80-percent lowers tend to make them as easy as possible for the most amateur of amateur gunsmiths to complete. In fact, many of the same retailers selling 80-percent lowers likewise sell complete kits with everything you need to transform what is legally just a hunk of metal into a complete firearm by doing the remaining 20 percent of the work. You’ll still need to have some proficiency with machine tools to finish the weapon, but not nearly as much as what would be required to complete a lower from a raw piece of metal. A drill press or rotary tool are enough to finish most 80-percent lower receivers. The time required is between one and seven hours, depending on the skill level of the operator.

Continue reading 3D-Printed Firearms and Defense Distributed: A Guide to Understanding “Ghost Guns” at Ammo.com.

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Federal Gun Control in America: A Historic Guide to Major Federal Gun Control Laws and Acts

For Americans, the crux of gun control laws has been how to disarm dangerous individuals without disarming the public at large. Ever-present in this quest is the question of how the perception of danger should impact guaranteed freedoms protected within the Bill of Rights.

Not only is such a balancing act difficult as-is, but there are also two additional factors that make it even more challenging: America’s federal government is constitutionally bound by the Second Amendment, and politicians notoriously take advantage of tragedies to pass irrational laws when emotions are at their highest. As President Obama’s former Chief of Staff, Rahm Emanuel, once famously remarked:

“You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before.”

This line of thought is not new to American politics. From the emancipation of enslaved Americans and the organized crime wave of the 1930s to the assassinations of prominent leaders in the 1960s and the attempted assassination of President Reagan in the 1980s, fear has proved a powerful catalyst for appeals about gun control.

Below is an overview of the history behind major gun control laws in the federal government, capturing how we’ve gone from the Founding Fathers’ America of the New World to the United States of the 21st century.

Second Amendment in America’s Bill of Rights: Ratified December 15, 1791

Congress added the Bill of Rights to the Constitution of the United States specifically “to prevent misconstruction or abuse of its powers.” The Second Amendment is the foundational cornerstone of every American’s right to bear arms, stating:

“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.”

The right to bear arms was second only to the first – the most vital freedoms of religion, speech, the press, the right to assemble and the right to petition government for redress of grievances. Meanwhile, conflicting views have left government and personal interest groups struggling to reconcile technological advances, isolated but significant violent anomalies and the constitutional mandate protecting the natural right to self defense and this most basic aspect of the Bill of Rights.

First and Second Militia Acts of 1792: Passed May 2 and 8, 1792

The U.S. Congress passed the Militia Acts of 1792 less than a year after the Second Amendment’s ratification. The first act’s purpose was “to provide for the National Defence, by establishing an Uniform Militia throughout the United States.” This measure established the need and command structure for a state-based militia. The second act defined conscription parameters for those militias, limiting armed service to “each and every free able-bodied white male citizen” 18 to 45.

Colonial Gun Regulations

Even today, the majority of firearms laws are state-based and vary considerably. While CaliforniaConnecticut and New Jersey have the most restrictive laws, ArizonaVermont and Kentucky have some of the least stringent. For more than a century, the young United States relied primarily on “state” laws:

  • The earliest came from Virginia, the result of fear of attack by Native Americans. The 1619 law imposed a three-shilling fine on able-bodied men who failed to come armed to church on the Sabbath.
  • By 1640, slave codes in Virginia prohibited all “free Mulattos and Negroes” from bearing arms. In 1712, South Carolina enacted a similar law.
  • During this time in Virginia, gun laws for Native Americans were similar to those for white men – as they were not barred from possessing guns (unless they were gathering food on land held by white men). There were, however, prohibitions against providing “Indians” with weapons and ammunition. Native Americans could own weapons, but there were strict regulations on how they could obtain them.
  • Throughout the Antebellum South, LouisianaFloridaMarylandGeorgiaNorth CarolinaMississippi and even Delaware all passed multiple measures denying guns to people of color, requiring court-issued permits, and allowing search and seizure of weapons as well as punishment without trial.

Continue reading Federal Gun Control in America: A Historic Guide to Major Federal Gun Control Laws and Acts at Ammo.com.

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