midtennchip

Unfortunately, that was a short-lived victory. SCOTUS today overturned the Order (which prevented the ATF from enforcing the rule while the case is on appeal). In a 5-4 decision, SCOTUS allowed the ATF to continue to regulate gun parts (like 80% guns) until the case goes through the full appeals process. We will see what the 5th Circuit does and, if appealed from there, what SCOTUS will do with the case on its merits. But for now, the ATF can continue to regulate these parts. Justice Roberts again sided with the more liberal members of SCOTUS to give the ATF a preliminary "win" in this case.

Unfortunately, my experience with the A300 is not good. Yes, it probably is the exception, but Beretta's handling of the issue is awful. I bought an A300 for skeet/sporting clays and it malfunctioned 50-60% (mostly failure to go into battery, but a few FTE) right out of the box, regardless of ammo (4 different brands, all the same result). I broke it down and cleaned everything, even called Beretta and took all the steps they suggested, and nothing worked. I shipped it back to them and got it back 2.5 weeks later. It came back worse. Malfunction percentage up to 80+% and FTE became a bigger issue. There was NOTHING in the box that indicated what (if anything) they did to the gun. When I called, the rep said they replaced the barrel and test-fired. There is NO WAY they test-fired it, unless they shot exactly one round and did not check it for cycling. When I got it, it malfunctioned on the first 3 shots and only properly cycled on 3 rounds out of the first 25. Had to send it back to them again and they've had it now for a month. They seem completely unwilling to replace the gun and apparently incapable of fixing the problem. On top of this, I bought the gun for an outing that was a few weeks after the purchase. I had to get another gun just to attend the function, so this has cost a LOT more than the cost of the A300. Not a fan of Beretta at this point.

Often, we don't get that option. Despite some of the movies and TV shows that act like jury selection is totally in the hands of the attorneys, that is not reality. In my last jury trial (employment case), the judge refused to excuse a potential juror who broke down crying when certain questions in jury selection triggered her memory of a similar situation that happened to her. She had an obvious bias and the judge would not strike her. We were left with using one of our 3 strikes without cause. In this day and age, I don't think 3 strikes without cause can get all the potential juror problems resolved (even assuming you can predict which individuals will be a problem). My purpose for bringing any of this up is to emphasize that letting a DA, judge, or jury decide your fate is a VERY risky proposition. And with society seeming to be more polarized by the day (and most seem to be driven only by headlines and 120 character tweets), it is questionable how many jurors will even attempt to understand the nuance of the self-defense law. I sincerely worry that jurors are making decisions based on pure emotion more and more every day.

This is one of those situations that you need to avoid at all costs. If we have learned anything from the last few high-profile cases, there are people sitting on juries who will blame a defendant for ANY aggression whatsoever. Luckily, most (not all) of these cases have not resulted in convictions, but all you have to do is listen to any media reports to know there is a segment of the population who will say "guilty" if the defendant was aggressive (or had a weapon) at all. If you have the ability to decide whether or not to get into the situation, always choose NOT to get involved in that situation unless absolutely necessary. Obviously, we don't know the whole story in this case, but driving to confront someone is increasingly going to put you in jeopardy. Not to mention this guy could easily have lost his life had the gun been loaded. In that case, would the girl have had a "defense of others" claim? Depending on the facts, she might. There lies the problem. When a situation goes to a mutual combat type of situation, it becomes very difficult to figure out who was defending and who was attacking. Juries get to decide on those. Choose wisely.

You guys may have worked this out, but the statute is quoted verbatim below. The "reasonable belief" is of the shooter, not the intruder. The law does not presume anything about the intruder. Although many people use the terms "fear" and "belief" interchangeably in this context, the issue is the shooter's mindset. So, the shooter's mindset is vital to a self-defense claim. What's in the shooter's mind is very difficult to know, so this presumption is vital under the circumstances described in the statute below. (c) Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

The defamation case (if ever filed) would generally be filed where the damage occurred (in Illinois since Rittenhouse lives there, but that isn't always were the damage occurred. The real issue is showing real damage, not speculative damage. Can he show that (for example) CNN's coverage specifically caused him a specific damage (like losing a job opportunity). He can be (and likely was) damaged by a general character attack, but which of the thousands of "false" statements by hundreds (maybe thousands) of media outlets caused his damage? As for the case you mentioned, it is very difficult (if not impossible in TN) to sue someone for a lawsuit they filed against you. We deal with this all the time in litigation and generally (absent very specific circumstances and intent) claims made in a lawsuit cannot form the basis of another lawsuit.

Now that we are on to the defamation issue, I believe Rittenhouse would have a case if the statute of limitations hasn't passed yet. This post is based on TN law and WI (and other state's) laws are similar, but likely have a different statute of limitations period. Libel (written) and Slander (spoken) are both part of defamation. To prove defamation, it's pretty simple: 1. a false statement (like, "he's a white supremacist"); 2. caused damage to the plaintiff (this will be hard to prove for Rittenhouse, in that any single statement by any single person would be difficult to prove caused damage beyond what others were saying); 3. the false statement was made negligently, with reckless disregard for the truth, or with actual malice (the standard varies a bit with public and private individuals). All of those appear to apply here, but again, proving that any particular false statement (for example, by Biden) caused Rittenhouse's damage might be difficult, but I could certainly see a jury finding that Rittenhouse's reputation was damaged by some of those specific comments. The main concern is whether RIttenhouse has waited too long to bring the claim. In TN, you have to file the claim within 6 months of the statement. Statements have been made since the day the shooting occurred (and continue today), but when was the damage done? So, it would be difficult to pinpoint what specific statement caused what specific damage. That said, this criminal case was (in my view) very instructive to anyone who was willing to keep up with the details. A group of lawyers on YouTube were live-streaming the entire case and commenting in real time. Those videos are still up and provide a LOT of explanation about what was going on. This case had some bad lawyering on both sides, but I know I wouldn't want one of my trials televised and other lawyers critiquing me as it happened. No one does everything perfectly, but there were a few glaring mistakes on both sides. If you are interested in detailed analysis of the trial, I would encourage you to go look at the Rekieta Law videos. They did an excellent job of covering the trial.

Absolutely! This situation may never have arisen in a true "red" jurisdiction, but if it had, I hope the DA would fight off the political pressure to prosecute.

Generally, this the case in every trial. The jurors have no ability to ask for more testimony or answer questions about the facts. Jurors can ask the Judge to clarify a question about the jury instructions the Judge gives them. Jury instructions explain what the law is and generally what the jurors are being instructed to decide. But the jurors don't get to ask for more testimony. In my experience, even when the jurors ask for clarification on a jury instruction, the judge often says "just read the instruction again." Today, the Rittenhouse trial was all about the jury instructions, so if anyone is interested in what that sounds like in a real criminal trial, today's videos are pretty much what happens in all trials to some degree.

On another note (for those interested), this trial has been very interesting for us lawyers. Our profession is going the same way as the general public. Way too much emotion and hysteria taking over everything. Watching the DAs and the Judge going at it is comical, but unfortunately, not surprising. We are seeing more and more of these types of tense exchanges between attorneys and between attorneys and judges. Unfortunately, a sign of the times and appears to only be getting worse by the day.

I fear the same thing. We've already seen one high-profile conviction that wasn't supported by the evidence, and I fear the political pressure will have a significant effect on this jury. The pressure clearly appears to have infected (yes, I spelled that right ) the prosecution. The DAs have gone way beyond zealously doing their jobs.

I have avoided posting about this case, but now that the case is almost over (closing arguments start tomorrow), I thought I would share some thoughts: 1. Rittenhouse testifying -- in the vast majority of self-defense cases, there is no choice. The defendant has to say he was in fear for his life. The Defendant is the ONLY person who can say what was in his own mind. Yes, the overwhelming amount of evidence here points to self-defense and this case has video evidence and witnesses that most self-defense cases will never have. Nevertheless, only Rittenhouse can say he was in fear. So, I suspect the defense attorneys felt they had to follow the normal course. Now, with that said, the attorneys may have had Rittenhouse testify about too many issues. On cross-examination, the prosecution generally is only allowed to cross-examine on the issues Rittenhouse testified to on direct examination. Had Rittenhouse just gotten up there and said "I was in fear" and then ended the direct examination, he might have avoided some uncomfortable cross-exam questions. That said, with the publicity and scrutiny on this case, I think the attorneys wanted to get a lot of details in that only Rittenhouse could testify to. While we would love to believe that juries follow the judge's instructions and only look at the evidence that was actually presented at trial, they DON'T. Juries always have questions in their own minds they want answered. If the attorneys don't anticipate those questions and put the answers into evidence, the juries WILL fill in the blanks with their own thoughts. I've seen it happen too many times and I've talked to too many jurors who say they do it. So, I am sure the attorneys felt the need to have Rittenhouse answer those questions. Normally in a criminal case, you do worry about the defendant testifying, but as I can tell, Rittenhouse didn't have any skeletons in the closet other than some really bad decisions. 2. General Thoughts -- this case should be a wake-up call to anyone who even thinks about using a gun in self defense. The current political climate is making even clear-cut self-defense cases hard. What I see as problematic in this case is that Rittenhouse inserted himself into a volatile situation. Should he have even been there? Whether you agree with Rittenhouse's decision or not, you have to know that some jurors will see those decisions as contributing to the situation. As we say in the legal profession, "bad facts make bad law" and this may be a classic example. Had Rittenhouse been in his own home and defended the home in the same manner (i.e., going outside, engaging the protestors, etc.), I think this situation would have been totally different. But he purposefully put himself into a situation where (i) he felt the need to have a gun to defend himself and/or property and (ii) he knew (or should have known) that violence was already occurring in that location. Therefore, it should have been foreseeable that force might be used at some point. Like it or not, there are jurors everywhere who will hold that against him. In short, be very careful about the situations you get into. Do everything you can to avoid HAVING to use a gun. Circumstances change in an instant, often with no ability to control it.

While I like his explanation of what 41F is, that does not (in my opinion) cover very much of the benefits of a trust. Yes, many people used trusts before 41F mainly for the benefit of avoiding fingerprints and passport photos. But there are many benefits of using a trust that have nothing to do with tax stamp application process. That video doesn't address those, likely because it was not intended to state "why a trust is no longer the benefit it used to be." That majority of benefits still exist and really the only one that disappeared with 41F is avoiding the fingerprints and passport photo requirements. I have run into many instances where having a trust would be highly beneficial beyond the issue of getting the tax stamp. 1. Possession by Trustees - this has been covered many times, so I won't go into detail here. However, I am personally aware of several instances in Middle TN where someone has come into contact with LE (traffic stops, call to DCS, etc) when the individual tax stamp holder was not present, but the NFA item was. This could be particularly important for individuals who travel regularly and leave the NFA item (i) in the house with someone else (like a spouse) or (ii) in the possession of someone else (which happens regularly with deployed military personnel). 2. Passing NFA Items to Younger Generation - this has been covered and I won't go into detail here. 3. Simplicity after Death - a will typically works, but does your will deal with the possibility of a beneficiary who is not legally eligible to possess the NFA item. You might be surprised how often this happens. Also, NFA items cannot be easily divided, so if you have (for example) 3 NFA items and 2 beneficiaries, who gets what? NFA trusts generally take care of this issue. 4. What if You become an Ineligible Person (temporarily or permanently) - This one has come up several times. An older gentleman had a WWII battlefield "trophy" he registered with the ATF in 1986 (no trust, though). A few years ago, he had a conservator appointed over him, making him ineligible to possess firearms. Since he hadn't passed away, the NFA item could not just be passed on to his son (who obviously wanted it). In addition, the gentleman's conservator could not legally possess it, either (and she wasn't "gun friendly). The item had to be destroyed or sold. Similar issue has arisen in several divorce proceedings lately, with the husband having an Order of Protection issued against him. When that happened, husband was ineligible and there was no one to take possession while the Order still existed. Several people have had to sell or destroy NFA items under these circumstances. If a trust had been in place, the ineligible person could have been removed as a trustee and another trustee could have possessed the item. These are just a few of the odd circumstances where a trust is better than individual ownership. We would love for the previous benefits to still exist, too, but there are still many benefits of a trust.

As always, this is NOT LEGAL ADVICE!! The confusion typically comes from the fact that there is no "hard and fast rule" here. Someone who forcibly enters and has no legal right to be there creates a presumption that you (the rightful occupant) are under a reasonable fear of death or grave bodily harm. That presumption can be overcome by the facts, though. For example, an intruder forcibly enters, is completely naked, and falls asleep on the couch. You walk into the room some time later and find him there. The fact that the intruder meets that presumption definition does not give the occupant the right to shoot him. Under those circumstances, the presumption is overcome by the facts. It would not be reasonable to be in fear at that point. Yes, if you change the facts or add facts, that could change the result. But that's the point. The facts will dictate what is allowable as self-defense. The classic example of a self-defense presumption is you hear glass break in the middle of the night. You get up, see a dark figure and fire at that figure. Under those circumstances, the shooter is presumed to have been in reasonable fear. The shooter would not have to prove that fear was reasonable at trial. If the prosecution can prove that the fear wasn't reasonable, the presumption is overcome and a conviction is possible (maybe even likely). The only thing the self-defense presumption does is change who has the burden of proof at trial. In either case, the facts matter. So, change the facts even slightly, you can get a different answer. As a general matter, it still comes down to reasonableness. If someone forcibly enters the house but you have any reason NOT to be in reasonable fear, don't shoot. Just because a person is in your house is not a get out of jail free card.

This is a bit late to the party (seems to be my habit lately), but thought this might help someone along the way. There are all kinds of reasons issues arise on TICS years after the fact (and after previous purchases with no issues). This has been discussed at NRA legal seminars and matches up with experiences I've had. Here are the most likely reasons: 1. An old arrest without a disposition -- The typical reason for an old issue popping up is a new electronic reporting of the issue. After the Virginia Tech shooting years ago, the NICS Improvement Amendments Act was passed and state reporting to the FBI dramatically changed. To meet the requirements, many states have been gradually entering older cases (ones before they used computer databases) into their electronic databases over the years. You'd think most courts were using databases by the 1990s, but that isn't always the case. Even when they did, those databases did not always link to the state or FBI. So, an old arrest can pop up now when someone finally enters the old arrest into their system, the state makes a software update, they link old databases, or some other reason that changes or updates the data being reported to the FBI. For example, the state of Wyoming had 30+ years of arrest records on microfilm in the state archives that were gradually being entered into electronic form. Even though the project was complete, the state found a new batch of microfilm that had supposedly been lost and (magically), a new issue arose for one of my clients from the late 1970s. I only found out after 5 phone calls to the archives clerk in Wyoming. 2. Failure to Enter Dismissal -- This is similar to #1, but I see this one more in TN. In TN, it is not usual for someone to plead out a case that involves (i) some probation or conditions and then (ii) a dismissal if the probation or condition is met. So, the charges are active for a period of time and are dismissed at the end of the probation/condition period. But for whatever reason, the court clerk does not enter the dismissal at the end. The person has no idea what needs to be done to enter the dismissal and assumes that either the court or the criminal attorney will handle it (and normally does). However, in the rare case the court or the attorney fails to do it, the affected person doesn't realize it until a TICS is run. 3. Wrong Names -- This is rare, but it does happen (often in connection with an issue like #1 above). Someone with a similar name (or where a court clerk types the name in incorrectly) causes something to pop up on your background check. There are some others, but they are fairly unique circumstances. In virtually all of these cases, the proper way to handle it is (i) find out what is causing it (through the appeal or run your own FBI background check and (ii) go to the source to resolve it. If the problem is from out of state, you would need help in that other state (that is, a TN attorney is not likely to be able to help).