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"Emergency restrictions"??

Discussion in 'Legal' started by JTHunter, Apr 7, 2020.

  1. JTHunter

    JTHunter Member

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    In this time of "national emergency", a review of certain "restrictions" on the government may be a good idea.
    This is from the "Inside NRA - ILA Report" from the May 2019 issue. Yes, I'm a bit behind on my reading but part of this article was almost prophetic. To wit:


     
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  2. D.B. Cooper

    D.B. Cooper Member

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    Good luck with that.
     
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  3. CapnMac

    CapnMac Member

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    Well, let's go look at the Code.
    https://www.law.cornell.edu/uscode/text/42/chapter-68
    Title 42 is Public Health and Welfare
    Chapter 68 is, specifically addressed to Disaster Relief.

    So, a polity could simply express that a restriction was for public safety and to prevent crime, neither of which are covered under 42 USC 68. That polity would be on the hook to defend that declaration in the face of an outraged public, who might not consent to such a thing. Which is part of the nature of our nation.
     
  4. boom boom
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    boom boom Moderator Staff Member

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    Law does not apply to state or local officials. If I recall correctly, the NRA got this passed after Katrina but I could be wrong.
     
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  5. Virginia Jim

    Virginia Jim Member

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    ”No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds,...”

    Most, if not all state and local agencies receive federal funds from Homeland Security, etc.
     
  6. bdickens

    bdickens Member

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    And of course, government officials never break the law....
     
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  7. D.B. Cooper

    D.B. Cooper Member

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    How does a Federal law not apply to state/local authorities?
     
  8. Frank Ettin

    Frank Ettin Moderator Staff Member

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    It depends on the federal law. See, for example:

    1. New York v. United States, 505 U.S. 144 (1992) --
      • at 161:
      • at 162:

    2. Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997):
    3. cf. Reno v Condon, 528 U.S. 141, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000). at 150-151:

    Furthermore, 42 USC 5207 applies, by its express terms, only to an:
    So whether a particular actor is subject to that federal statute might be a question of fact that would require a determination after the event.
     
  9. boom boom
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    boom boom Moderator Staff Member

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    Frank has some good examples on commandeering state or local officials to enforce federal laws.

    Even the clause in the statute at issue regarding federal funding gets complicated fast.
    On the first take, I missed the spending restriction on state and local governments in the federal statute which is my error.

    For limits on congressional spending clause power, an example is,

    NFIB v. Sebelius, 567 U.S. ___ (2012), where a majority of the Supreme Court held that the requirement to expand Medicaid under the PPACA (aka Obamacare) or lose all Medicaid funding for existing residents was not constitutionally permissible as it constituted an unacceptable level of coercion of the states.

    This decision was based in part on the precedent from South Dakota v. Dole, 483 U.S. 203 (1987)

    Under the spending clause, the Court developed a five point rule for the constitutionality of expenditure cuts:
    1. The spending must promote "the general welfare";
    2. The condition must be unambiguous;
    3. The condition should relate "to the federal interest in particular national projects or programs";
    4. The condition imposed on the States must not in itself be unconstitutional; and
    5. The condition must not be coercive."
    Part 5 was what a majority of the justices in NFIB v. Sebelius found as unconstitutional regarding that states were required to expand Medicaid rolls to 138% of the current poverty level or lose all Medicaid funds.

    In contrast, the highway funding reduction at issue in SD v. Dole was five percent.

    Given the mechanism in the statute is a simple forbidding of any state or local government getting funding in a disaster or emergency, the law above appears more like Sebelius and less like Dole.

    In addition,
    Condition 4 in the spending test from SD v. Dole, also makes it difficult as arguably an emergency seizure of firearms by state or local official might be considered part of the Tenth Amendment reserved powers of states to regulate for the public's health, safety, and welfare (aka police powers). Part of the issue in Dole, was that both Justices O'Connor and Brennan dissented based on the 21st Amendment reserving the regulation of alcohol to the states. Justice Rehnquist recognized the issue in the majority opinion but held that the mere 5 percent reduction was not high enough to constitute coercion of the state to abrogate its constitutional powers. More or less, he held it was okay to "pressure" a state by some material inducement to toe the federal line but not to "coerce" it.

    The later case of New York v. United States, 505 U.S. 144 (1992) reiterated that the federal government lacks the power to coerce the states into giving up their own sovereign rights regarding whether or not to participate in a federal regulatory action on low level nuclear wastes. The federal statute punished any state that failed to join interstate compacts to create waste dumps for these nuclear wastes by requiring the state to take ownership of the waste. This requirement was regarded as coercive punishment of the state for failure to agree with the federal law and thus not permissible under the 10th Amendment.

    Agency (whether or not a contractor, a state, or local officer is acting as an agent for the federal government's actions) is an area of the law that is murky. The plaintiff would have to prove that the state or local official was acting at the behest of the federal government in a regulatory action and not using their state or local powers which are pretty extensive during emergencies.

    In addition,
    Note that the restriction, for example, on seizures,
    "(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than forfeiture in compliance with Federal law or as evidence in a criminal investigation;"

    This could be interpreted by the courts to read that if the governor for example issues an executive order pursuant to emergency powers granted to her or him by existing state law to ban any carry of firearms in a place such as actually happened at the Virginia Capitol during the late firearm protests. Then, the seizure of any weapons by VA security forces on the perimeter of the firearm ban zone to enter that security zone would appear to be facially legal as acting in accordance with existing VA state laws. Depending on the state, a local government might also have considerable leeway to regulate firearm carry under state laws in emergency conditions. A lot of old caselaw interpreting public health emergency laws are amazingly broad in granting state and local government powers to regulate persons. So, a federal court being asked to apply the federal statute by a plaintiff suing would have to examine the existing local and state laws that governed the seizure that were triggered by a proclamation.

    In a situation where federal courts interpret a statute for the very first time, there is a presumption of constitutionality (outside of heightened or strict scrutiny) that the plaintiff must overcome, even then, if there are two (or more) ways to interpret a federal statute: the court should chose to interpret the law in such a way that it is constitutional instead of striking it down.
     
  10. 12Bravo20

    12Bravo20 Member

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    Here in Missouri we have Title 5, Chapter 44.101 which states:

    https://revisor.mo.gov/main/OneSection.aspx?section=44.101&bid=1453&hl=
     
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  11. JTHunter

    JTHunter Member

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    In one of the other forums where I placed this, someone replied that the was passed after Hurricane Katrina because of the actions of Roy Nagin, the then mayor of New Orleans.
     
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  12. boom boom
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    boom boom Moderator Staff Member

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    You are right, "In 2006, moreover, President George W. Bush signed into law the Department of Homeland Security Appropriations Act, which contained an NRA-backed amendment sponsored by Sen. David Vitter (R-La.). The amendment prohibits persons acting under color of federal law, receiving federal funds, or acting at the direction of a federal employee from seizing or authorizing the seizure of lawfully-possessed firearms or imposing or enforcing certain restrictions on firearms during a state of emergency." https://www.nraila.org/articles/201...-confiscation-can-and-has-happened-in-america



    There was enough blame for everyone in that mess with little accountability other than it was an emergency. The SAF and NRA sued but a lot of the firearms were ruined or New Orleans could not identify the owners.
    https://www.gun-tests.com/handguns/nra-new-orleans-to-settle-katrina-lawsuit/

    This is from the Bloomberg supported Trace news site but still,

    "Brannon LeBouef, a shooting instructor and security consultant, was a New Orleans Marine veteran and reserve police officer who participated in the storm response. By 2013, he’d heard so many fantastical Katrina rumors that it was time to set the record straight. “There was NOT widespread gun confiscation in New Orleans,” he wrote on the Bang Switch, a pro-gun blog sympathetic to the Oath Keepers (current and former military and law enforcement officers who vow to disobey government orders that violate civil rights) and the NRA. Gun-grabbing “was nowhere near as widespread as some would have you believe,” and the confiscations LeBoeuf could confirm “were isolated incidents” done largely by “out of town” cops and soldiers, part of an alphabet soup of agencies without clear missions or lines of responsibility:

    I know I encountered countless people with firearms and did not confiscate a single one, neither did any officer I knew or worked with. The only time firearms were seized were when someone was arrested for a crime — no different than before the rain.

    In fact, LeBouef wrote, he and 200 other federal officers from an array of agencies were given clear briefing instructions that included an order not to take firearms except as criminal evidence or as part of arrest procedures.

    LeBouef’s recollections track with New Orleans police records. Shortly after the storm, the NRA and other gun groups sued the city police department, eventually reaching a court-brokered settlement that required the police to return confiscated guns to their rightful owners. The department revealed it had taken 552 guns into custody. Gordon Hutchinson, part of the legal team that tried to inventory the confiscated weapons, estimated that police had collected several thousand more guns before a federal court halted the seizures on September 23. But whether by theft or incompetence, most weapons — the more desirable and valuable ones — had never made it into the department’s coffers; the 552 that remained to be claimed by their owners were mostly inoperable junk guns. Either way, in a city of nearly half a million, where gun possession had always been popular (and exploded after the storm), that doesn’t amount to a totalitarian power grab." https://www.thetrace.org/2015/08/nra-hurricane-katrina-gun-confiscation/

    Also see, http://www.theshootist.net/2008/12/court-decision-on-new-orleans-gun.html describing the condition of the firearms and estimates of those seized.

    The major effect of the legislation of the legislation would be on federal officials or those working under them as contractors, etc. and it does create some legal uncertainty for local and state officials along with the possibility of having to pay expensive legal fees if they lose due to the funding clause.

    Emergencies, by their very nature, usually have governments act then fight off the lawsuits later. Where an emergency has a local and federal response, the constitutional lines get blurred. Sometimes, local officials go to far like the Louisville mayor on drive in religious services and get nailed by a federal court for exceeding their powers which is what originally happened in New Orleans after Katrina.
     
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  13. JumboJVT

    JumboJVT Member

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    Is it not simply because the law in question says "No officer or employee of the United States..." ? State and local authorities aren't.
     
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  14. JTHunter

    JTHunter Member

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    Thanks for filling in the details Boom-Boom.
    I still remember that horrific video of the white-haired elderly woman getting body slammed into a wall by a young, burly cop that had to weigh twice what she did because she was prepared to stay in her home and had stocked food and water.
     
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  15. Speedo66

    Speedo66 Member

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    The Feds generally get what they want from states by the application or removal of funds.

    If you're old enough to remember the '70's "gas crisis" when the Feds mandated a 55mph speed limit, any state that didn't comply was told they were losing highway funds, which most states rely upon.

    I think there were a few states out west that said they wouldn't give speeding tickets to those who didn't comply with the 55 limit, instead giving them fuel usage minor fines which didn't get points or cause any damage to your license.
     
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  16. D.B. Cooper

    D.B. Cooper Member

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    Yup. The power of the purse string. It's hard to believe how few people truly understand our Federal system, the concept of shared vs enumerated powers, and what types of laws the Federal government can even pass.
     
  17. boom boom
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    boom boom Moderator Staff Member

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    Yes. that is a problem.
     
    Last edited: Apr 25, 2020
  18. boom boom
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    boom boom Moderator Staff Member

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    We are drifting from any legal matters here into general political issues so if folks can please stick to discussing the case law and statutes and if any such Katrina type enabled by specific emergency statutes at the local level.
     
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