Discussion in 'Legal' started by Molon Labe, May 10, 2006.
I think that the sheriff departments can tell the Feds to go suck an egg if they want to investigate in their county. Anybody upto date on this idea?
That is shocking! And absolutely fantastic! My jaw just dropped
Question...the federal government doesn't have the authority to grant or remove firearm privileges for CCW privileges...but if it really wanted to get dirty, couldn't they not re-up the FFL licenses and therefore make it EXTREMELY more difficult to get a firearm?
Bergerboy---that was sheriff Dave Mattis of Big Horn county!!Stand up guy and friend of gun owners.
I lived in Greybull,Wyoming(his home town) just after that incident occurred and the people have re-elected him ever since.However this will be his last term as he is retiring.
Sheriff Mattis has a dim view of the actions of some of the Feds and has acted accordingly for years.
It is interesting to note that in many states the Sheriff is the SOLE law enforcement authority of a county or parish(Louisiana) and he or she can keep the feds from operating there with out the sheriff's permission.
Sadly in some states the sheriff's have been reduced to nothing more than process servers.
Oh man that's a hoot!
Do actually believe that crap, or are you actually trying to be funny?
The ATF only has jurisdiction on Federal territory - or any ground where the State of Wyoming has ceded it - partially or otherwise. If the past Wyoming legislature was ever stupid enough to agree to universal concurrent Federal jurisdiction on all territory within the State of Wyoming, there is not much that can be done. The geldings in the U.S. Congress have permitted the ATF to write it's own rules and "enforce" them.
Otherwise, all Wyoming has to do is enforce it's own jurisdiction where it remains - and arrest any Federal agent attempting to enforce any Federal code on it's areas of exclusive State jurisdiction.
That's a new one for me as well, DMF.
As an aside, it may interest people to know that the Governor is a Democrat and former U.S. Attorney under Clinton, he appointed the WY AG, and the WY AG was an Assistant U.S. Attorney before becoming AG.
Its said that the snow in Wyoming does not melt.
It just blows around until it wears out.
What if a State had no domestiic violence law? There could be plain 'ole Assult. Why these hate crimes?
It seems to me that the real issue with this whole issue was something along the lines of the technical definition of expungement not being met by the WY law.
I seem to recall that WY passed an expungement law to allow people to regain their firearms rights, but it was not a traditional expungement. They called it expungement, but it was more akin to a sealing.
Really the whole thing ought to be a moot point. Instead of calling something that is not quite an expungement an expungement, the state could have just issued a pardon to the individuals involved along with a records seal. instead they chose to call the process something it is almost, but not quite.
At least that is what I seem to recall.
Remember that the crime in question is a MISDEMEANOR.
I've recently begun to question the prudence of stripping (God-given, inherant) rights from folks who aren't in jail or prison. If the folks have "paid their debt to society", then they've paid, all done, back to normal, or at least one would think. Else, they'd still be in prison, no?
The fact that this practice of rights-stripping how now reached down to MISDEMEANOR-level crimes makes me downright angry.
Do keep in mind that merely having a loud argument with a spouse is enough to have the cops roll in, whom can then press charges by themselves. Couple that with the fact that often folks will plead guilty to a DV chatge to avoid becoming a felon... whoops! Oh well, at least they can still vote!
More legal comedy from another person who obviously has absolutely no knowledge of how the legal system really works.
I know exactly how it works - I have worked in areas of exclusive, and concurrent, Federal/State jurisdiction. Not to mention where it overlapped in a foreign country.
What you are attempting to peddle as correct simply re-enforces the point of view of many that we are under an increasing form of dictatorship run by the Executive branch.
Jurisdiction is the foundation upon which our Constitutional legal system and jurisprudence is written. If it is a sort of "anything goes if we say so" - the elected and appointed officials of the Federal gov and it's agencies can basically do "anything we please".
You may like that of course; regardless, it is a usurpation of police powers that do not legally exist.
LAK, you're wrong. The county government CANNOT stop the federal government from enforcing federal law. If the law has been properly passed in accordance with Article I, and signed into law via Article II, and has not been overturned by the Judiciary under Article III, the county or state government cannot stop the federal government from protecting federal interests.
For an example of this look at the California drug laws, ie, "medical" marijuana. The cities, counties, and state, cannot stop the federal government from enforcing Title 21 of the US Code, with respect to marijuana.
Further, the stories about Sheriff Mattis are nothing more than "urban legend." The stories are allegedly based on a ruling in a fictitious case from 1996 in federal court. However, there is no record of this case. Don't believe me? Fine get access to PACER, and do a search yourself. The alleged case was Castaneda v. US, District Court of Wyoming, 96-CV099-J. It doesn't exist.
Further, I have seen items on the internet that claim to be Sheriff Mattis' policy on the feds in his county. However, they don't show Mattis attempting to keep the feds out at all, but merely place limits on what ASSISTANCE the county will provide to the feds. I don't even know if these alleged policies are actually from Sheriff Mattis, but if they are they show he isn't claiming to be able to stop fed LE activity in his county, but merely setting a policy on when and how the Sheriff's office will assist fed LE.
For an example of the alleged policy read this:
I can tell you this the local sheriff can claim he requires just about anything, however the feds are not legally required to comply.
Makes sense the sheriff cannot stop the Feds from enforceing Federal Laws.
Saying that, it makes sense that the local LEOs need not assist the Feds in any way shape or form. Sound correct?
Completely correct. The local and state agencies are not required to assist fed agencies in enforcing federal laws.
However, contrary to popular belief locals and feds usually get along very well, and assist each other whenever possible. Why? Because we have the same goal in mind, catching criminals that harm the community at large.
That doesn't mean someone won't occasionally say, "Sorry, we're busy with ______ today, and can't lend a hand."
There is nothing incorrect in what you say in regards to how Federal laws are passed. What you are disregarding are the limits of Federal jurisdiction. Every sovereign entity has limits to it's jurisdiction, and the limitations are territorial.
I have done so before, and I could repost them all again here; there is a long history of court recognition of the territorial limits of jurisdiction. It is the same as for the States, Counties and municipalities; unless a State has ceded or partially ceded jurisdiction to the Federal government for any given piece of land - or the Federal government happens to own the land and hence have exclusive jurisdiction - the Federal government has no jurisdiction there.
Jurisdiction can only be ceded in whole or in part by an act of law of the State legislature. Why do you think the Federal government could not impose a 55 mph speed limit on all highways in the fifty States without the consent and co-operation of the States? Were Federal jurisdiction as sweeping as you claim, it would not have been necessary for the Federal government to threaten to withold Federal highway funds etc to "pursuade" those States that resisted.
The extra-territorial jurisdiction exercized by the Federal government in certain foreign countries for certain crimes is by treaty, and amounts to that country allowing concurrent jurisdiction.
While Federal agents might feel free to run around any State, on any piece of land and "enforce" Federal laws, a State might rightly view such agents as violating State laws against false arrest, etc. The reverse would be a sheriff's deputy waltzing onto an air force base and attempting to "enforce" a county or State law - which does happen, but only when there is concurrent jurisdiction by legislative act beforehand.
You simply have a warped view of the legal realities.
The federal government cannot force state and local governments to enforce a particular law, or to enact certain laws, such as the 55mph speed limit. Which is why Congress simply refused to provide funding for the highways to any state that refused to enact a 55mph speed limit. The same was true of the 21 and over drinking age.
However, the territorial jurisdiction of the federal government is the ENTIRE United States, it's territories, and possessions. The federal government can enforce those laws properly passed by Congress, and signed into law by the Executive. The federal government does NOT have to wait for the states to cede jurisdiction to the feds.
Further, your claim that a federal agent properly enforcing federal law would have to worry about being prosecuted by a state or local government that objected to those enforcement actions is ludicrous. The examples of federal agents being charged by state or local law enforcement, only to have the case be removed to federal court are numerous. Once in federal court a federal judge will then determine if the agent or agents are entitled to qualified immunity from prosecution. If the agent was in fact acting within the scope of his employment as a federal agent, and his actions were proper within the scope of federal law, and agency policy, the agent will be granted qualified immunity from prosecution on the state charges.
If you are confused on this matter I refer you to the Supremacy Clause of the Constitution of the United States.
No I don't. The realities are that the newly empowered we-can-do-anything well-please federal government, it's agencies - backed up by a significant slice of the judiciary - would like to do whatever they please, and much of the time do so unchallenged. Regardless of our legal foundations, jurisprudence and the now purely theoretical "check and balance" called the U.S. Congress.
But the legalities of jurisdiction still apply.
This is a silly dance. If the Federal government actually had the legal power - the jurisdiction - to do so, they could have merely made the 55 limit a "federal law" that applied nationwide. The fact is, they do not have the jurisdiction to do so, and such a "law" would have been undoubtably challenged on that ground.
And your assertions of automatic nationwide jurisdiction are absolutely false. Absolute BS.
Here's a few examples of the limits of jurisdiction in action:
Pothier v. Rodman, 291 F. 311 (1st Cir. 1923)
Rodman v. Pothier, 264 U.S. 399, 44 S.Ct. 360 (1924)
United States v. Unzeuta, 35 F.2d 750 (8th Cir. 1929)
United States v. Unzeuta, 281 U.S. 138, 50 S.Ct. 284 (1930)
Bowen v. Johnson, 97 F.2d 860 (9th Cir. 1938)
Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442 (1939)
Adams v. United States, 319 U.S. 312, 63 S.Ct. 1122 (1943)
Kelly v. United States, 27 F. 616 (D.Me. 1885)
United States v. Andem, 158 F. 996 (D.N.J. 1908)
United States v. Penn, 48 F. 669 (E.D.Va. 1880)
United States v. Lovely, 319 F.2d 673 (4th Cir. 1963)
"Without proof of the requisite ownership or possession of the United States, the crime has not been made out." - United States v. Watson, 80 F.Supp. 649, 651 (E.D.Va. 1948)
Brown v. United States, 257 F. 46 (5th Cir. 1919)
England v. United States, 174 F.2d 466 (5th Cir. 1949)
Hudspeth v. United States, 223 F.2d 848 (5th Cir. 1955)
Krull v. United States, 240 F.2d 122 (5th Cir. 1957)
Gainey v. United States, 324 F.2d 731 (5th Cir. 1963)
United States v. Townsend, 474 F.2d 209 (5th Cir. 1973)
"It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefor." - United States v. Benson, 495 F.2d 475, 481 (5th Cir. 1974)
United States v. Tucker, 122 F. 518 (W.D.Ky. 1903)
United States v. Blunt, 558 F.2d 1245 (6th Cir. 1977)
United States v. Johnson, 426 F.2d 1112 (7th Cir. 1970)
United States v. Heard, 270 F.Supp. 198 (W.D.Mo. 1967)
United States v. Redstone, 488 F.2d 300 (8th Cir. 1973)
United States v. Goings, 504 F.2d 809 (8th Cir. 1974)
Hayes v. United States, 367 F.2d 216 (10th Cir. 1966)
Hall v. United States, 404 F.2d 1367 (10th Cir. 1969)
United States v. Carter, 430 F.2d 1278 (10th Cir. 1970)
United States v. Cassidy, 571 F.2d 534 (10th Cir. 1978)
United States v. Bateman, 34 F. 86 (N.D.Cal. 1888)
United States v. Tully, 140 F. 899 (D.Mon. 1905)
United States v. Watkins, 22 F.2d 437 (N.D.Cal. 1927)
United States v. Holt, 168 F. 141 (W.D.Wash. 1909)
United States v. Lewis, 253 F. 469 (S.D.Cal. 1918)
United States v. Wurtzbarger, 276 F. 753 (D.Or. 1921)
Rogers v. Squier, 157 F.2d 948 (9th Cir. 1946)
Arizona v. Manypenny, 445 F.Supp. 1123 (D.Ariz. 1977)
Well, what the hell, I suppose I could start a Wyoming PP chapter.
It appears you have quoted from a motion(s) to dismiss from defendants that were posted on some websites. Those motions quote court cases, but appear to quote them out of context.
It appears you got the majority of your post from this one motion to dismiss: http://www.supremelaw.org/cc/wallens/nadismis.htm
Please understand a motion from a defendant is NOT a ruling from the court, and just because someone quotes a case in a motion does not mean it was done properly.
Care to post the actual complete court decisions to cases like, United States v. Benson, 495 F.2d 475, 481, rather than an out of context quote from a defendants motion to dismiss in another case?
No, I did not draw any of these references from your posted URL.
Let's start with Clause 17, Section 8, Article I of the United States Constitution which authorizes Congress to exercise exclusive jurisdiction over it's property or that which it aquires with the consent of a State quoted from:
Clear enough isn't it? You apparently read Clause 17 to end with the word "whatsoever".
Let's move on to Adams v. United States quoted from the same source:
From the same source cited:
I was a law enforcement specialist at Wright-Patterson AFB in the late 1970s - we did in fact exercize concurrent jurisdiction on State Highway 444 with OSP but not exclusively at that time.
Federal jurisdiction is not universal, automatic or a simple matter of any other Congressional whim - Federal jurisdiction is territorial, and limited. It can not be expanded without the agreement of the State, with the required procedure, having initial and exclusive jurisdiction.
In Adams v. United States, the court upheld the challenge against the Federal government's jurisdiction based on the simple fact that the United States had not properly accepted jurisdiction over Camp Claiborne where the alleged crime had occurred. In this case an alleged rape.
The motions to dismiss listed reference cases like this one.
Here's one even closer to the issue of the BATF. Why read it and tell us just how sweeping Federal jurisdiction is:
UNITED STATES v. MISSISSIPPI TAX COMM'N, 412 U.S. 363 (1973)
In this case exclusive jurisdiction existed, was proven, and the case was upheld.
You are talking about exclusive federal jurisdiction in those examples. In areas of exclusive federal jurisdiction the state has ceded ALL jurisdiction to the federal government, rather than having concurrent jurisdiction. The issue of exclusive federal jurisdiction is a far cry from the state needing to cede ANY jurisdiction to the federal government.
The portion of the Constitution, and the case(s) you just cited, are about whether or not the federal government has exclusive jurisidiction over the property. In areas of exclusive federal jurisdiction the state has no jurisdiction. fNeither, says the state must cede jurisdiction in areas where the federal government does not have, or the state has not ceded, EXCLUSIVE jurisdiction.
A state giving up all jurisdiction, and giving the federal government exclusive jurisdiction is a far cry from the state being able to prevent the federal government from enforcing federal law at all inside a state.
Keep searching for some caselaw that will support your argument.
I won't hold my breath though.
Mr., your sentences here, one and three, contradict each other.
In sentence one, you simply state one of the elements of my initial assertions. In sentence three, you attempt to say there is no need for a State to cede any jurisdiction.
In most cases the examples given are in territory where the jurisdiction, exclusive or otherwise is disputed by the defendant accused and being tried in a Federal court.
I mention concurrent because in such a jurisdiction the Federal gov still has legal jurisdiction over some matters. Sometimes there are agreements in such areas where the State will normally have primary jurisdiction to try particular criminal cases for example.
In United States vs. Adams the issue was whether the Federal gov had any jurisdiction to try the case.
RE: Sentence number one.
Yes, we know that.
RE: Sentence two.
Incorrect; see United States vs Adams (1943). Of which I have already posted a summary of contested jurisdiction.
Update: Wyoming loses.
Comment: DNF, and the Brady Center are celebrating this decision today, no doubt...
Wyo loses gun lawsuit
By BEN NEARY
Associated Press writer Wednesday, May 09, 2007
CHEYENNE -- The federal agency that tracks gun purchases was correct in rejecting a Wyoming law that sought to allow people convicted of misdemeanor domestic violence charges to regain their right to own guns through the state courts, a federal judge has ruled.
U.S. District Judge Alan Johnson ruled Tuesday against Wyoming's claim that the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives arbitrarily rejected the 2004 state law.
The federal agency had warned Wyoming that if it persisted in allowing people with misdemeanor violence convictions to buy guns, that the federal government would no longer recognize more than 10,000 concealed carry permits issued by the state as a substitute for federal background checks for firearms purchases.
"We are pleased with the court's decision," Justice Department spokesman Charles S. Miller in Washington, D.C., said Tuesday.
Pat Crank, Wyoming attorney general, said he was disappointed with Johnson's ruling. He said he hadn't read it.
"We thought we had a very sound legal argument," Crank said. "We'll have to review it and see if we want to appeal, or if this will be the end of this lawsuit."
The National Rifle Association had argued in court on the state's behalf. Observers had said they expected the Wyoming case would have national implications.
Congress in 1996 expanded the law that bans convicted felons from owning guns to apply to people convicted of misdemeanor domestic violence.
Although states have the ability to expunge convictions, Wyoming's law attempted to specify that convictions could be removed for purposes of restoring firearms rights but remain on the books for purposes of enhancing punishment for any subsequent conviction.
"In short, the applicant may be prohibited ... from carrying firearms because of the BATF's determination that a state's statute is insufficient to remove a federal firearms prohibition," the judge wrote.
Besides a possible appeal, Crank said: "The other option is that the Legislature can always go back and change the law, and make it more of a complete expungement."
Crank's office issues concealed carry firearms permits for the state. He said he's aware of one person who has obtained a concealed carry permit after having a misdemeanor conviction expunged.
Crank said he didn't know how many people have had misdemeanor convictions expunged.
Daniel Vice, junior attorney at the Brady Center to Prevent Gun Violence in Washington, D.C., said it was appropriate for the federal government to oppose a law that would "make it easier for dangerous people to get their guns back."
"The Brady Center applauds the court's ruling," Vice said. "Particularly after Virginia Tech, we shouldn't be making it easier for dangerous people to get their guns."
Ashley Varner, spokeswoman for the NRA in Fairfax, Va., said that despite the judge's ruling, her organization still believes the Wyoming law was solid.
"It provides a very detailed process by which a person could apply to get their rights restored," Varner said. "We feel that it was a responsible way to go about any kind of expungement process. It's important to note that the law provided for the victims of a crime, as well as the prosecutor, to weigh in on the court's decision. And we feel that was a solid way, a solid law."
Associated Press Writer Matt Apuzzo in Washington contributed to this report.
Yet another reason to vote for change.
Lets get Ron Paul elected, and work to change things.
Separate names with a comma.