Vote for Safety

See my Conduit News Interview.  I discuss the safety and security issues facing Arkansans and how Chris Corbitt and I are working everyday proactively to ensure that bureau-hacks don't succeed in taking away your rights!  Rob

Stand Your Ground is on Solid Footing

 

I recommend the Stand Your Ground bill, SB24.  I understand that there are two primary issues of concern by those who otherwise support Second Amendment rights.  While well intentioned, I believe those concerns are misplaced, which I discuss herein.

 

First, SB24 currently states: “A person who uses or threatens to use physical force as otherwise permitted under this subchapter does not have a duty to retreat before using or threatening to use the physical force if the person is . . . Lawfully present in the location.”  Some gun-rights advocates prefer replacing “lawfully present in the location” with “right to be there.”  While I believe that courts would likely interpret these two clauses as having the same effect, they might not.  And to the extent courts don’t treat these clauses similarly, I believe that using “right to be there” would, in fact, weaken the bill. 

 

A simple example should clarify the issue:  I suspect that most people are concerned with the possibility of the need to use self-defense when they go, e.g., shopping, to a restaurant, or to other privately owned locations that are open to the public.  While individuals have no right to be at those locations, they are “lawfully present” there.  In other words, if you go to Walmart, you have no right to be there, but you are, nonetheless, lawfully present there.  As such, under the proposed language change, you would not have the right stand your ground at a store or restaurant.  Given this, the “right to be there” language would actually dramatically restrict the application of the Stand Your Ground law to a point where it’s largely meaningless.  Thus, the proposed language change would in reality support anti-gun-rights advocates’ views, contrary intentions notwithstanding. 

 

Second, because the current duty to retreat is also mentioned in a separate statute that protects the unborn children of pregnant mothers, SB24 also removes entirely the duty to retreat in that law as well.  In removing that duty, the bill also, aptly, removed the exception to the duty.  Some pro-gun-rights advocates see the removal of the exception as problematic.  They are mistaken.  If the duty to retreat is eliminated, it makes no sense to continue to have an exception to the now non-existent duty. 

 

I believe that the pro-Second-Amendment advocates challenging SB24 are well intentioned but simply mistaken.  I hope that I have been able to clarify the issues. 

Tom Carpenter: When in a Hole, Stop Digging!

There's an old saying:  when in a hole, stop digging.  Tom Carpenter apparently hasn't gotten the memo.  He's gone and appealed his embarrassing loss in the Court of Appeals in the Ben Motal case.  

Remember that attorney Ben Motal visited the Little Rock Police Department headquarters to inspect and copy an accident report under the Arkansas Freedom of Information Act (FOIA).  The police bureau-hack Motal encountered refused to allow him to copy the report by taking a photograph using his cell phone. Motal sued. 

The City argued that a photograph is not a "copy." The trial court judge, Mackie Pierce, agreed. First, Pierce said that the word "copy" doesn't include "photograph" but somehow does include "facsimile." Second, Pierce contended that a photograph can be Photoshopped but a copy-machine reproduction cannot be easily altered -- all without ever having the required hearing to take evidence on the matter.  In other words, he just made it up.

Pierce also dismissed the case because the City relented after being sued and provided the records directly to Motal (without any need to photograph or otherwise copy them). If this tactic were permitted, then only those who can afford attorneys would have rights, because they could sue.  If you're a regular Joe, you wouldn't have any rights, because there wouldn't be any precedent to protect you when the City repeated the same bad thing it did to Motal.  

Luckily, all but one of the judges on the Court of Appeals said that "copy" means, well, "copy"!  Indeed, the Court of Appeals, in an excellent opinion written by Judge Kenneth Hixson, cites to my co-authored book on the FOIA, which addressed this very point, to hold that, yes, a photograph is a copy.  Indeed, modern copiers are cameras.  The Appellate court rejected all of the City's arguments.

Guess what, Carpenter has just appealed -- rehashing his losing arguments before the Court of Appeals.  He contends that the "Court of Appeals fails to give 'copy' its plain and ordinary meaning as usually accepted in common language. Copy and photograph are not used interchangeably in common language."  Uh, yes they are.  Carpenter just presents more double speak from bureau-hacks.

Then, Carpenter pretends that there was a hearing on whether it is easier to edit a photograph or a photocopy and asserts that the trial court's conclusion based on that non-existent hearing is entitled to deference.  Here's the thing:  there was no hearing.  And Carpenter knows this, as the City litigated this case!  The trial judge just made up the "facts" regarding the ease of editing.  Of course, that's never entitled to appellate deference. 

Thereafter, Carpenter makes an indecipherable argument regarding why the Court made a ruling on the meaning of "copy" that wasn't somehow restricted to accident reports.  I guess that Carpenter fears that the Appellate Court's ruling would prevent him from trying his same nonsensical arguments for requests of other public records.

Finally, Carpenter yet again turns plain statutory language on its head.  He argues that the $10 fee that is designed to “partially reimburse” the agency for the costs associated with “making copies” of motor vehicle accident reports means that some portion of that fee is intended to compensate the police for their time to write or make the report.  Wait, what?  Where did he get that?  Well, he likely got it from the same place he got his other arguments:  thin air.

Let's dig a little deeper on this last point.  Carpenter argues that the law limiting what the City can charge a citizen for a copy (rather than making his own copy on his phone) -- even if it costs more (hence, "partial reimbursement") -- actually means the opposite!  Carpenter believes -- well, he argues -- that the actual copying costs are always some random amount less than $10 and the undefined residue is designed to pay the City for preparing the report that it already prepared (and was already paid for by your tax dollars).  In reality, the law only allows for a $10 charge even though the cost might be more; hence "partial reimbursement."  Don't be surprised, though; this is the same guy that says "copy" doesn't mean "photograph."

This kind of logic is why many folks don't trust attorneys.

Mayor Scott, You Should Send Your City Attorney a Note on Transparency

Today, Little Rock Mayor Frank Scott, Jr. sent an email to constituents announcing that he's setting up an independent review to investigate the Little Rock Police Department, given the ongoing parade of horribles coming from his handpicked Commissioner.  

The most recent allegation is that the Commissioner bullied senior officers who wouldn't back the Commissioner's vendetta against Police Officer Charles Starks.  (Nevermind that the Mayor seems to have been fueling the Commissioner's run-away-train "management" style when it came to the Starks affair.)

In his email, the Mayor -- who says he's consulted with the City Attorney, Tom Carpenter, in deciding to set up his independent review -- announced:  "Since taking office, we have been committed to our ACT Plan – remaining Accountable, Clear, and Transparent as we govern."  Wait, what?  Transparent?  Have you been reading Arkansas Impact: Law & Politics?

Mayor Scott, you are aware that Tom Carpenter defended the City's refusal to allow Ben Motal to copy a public police report by taking a photograph using his cell phone?  Is that transparent?

Mayor Scott, you are aware that Tom Carpenter argued that a citizen is only allowed to do one of the following:  inspect, or copy, or receive a government record but not the remaining two?  Thus, for example, if a citizen inspects a public record, then he can't copy it or receive it -- according to Carpenter.  Say what?  What happens if a citizen receives a copy of a public record and then inspects that copy?  I guess -- according to Carpenter -- the citizen has violated the law.

Mayor Scott, you are aware that (1) the Court of Appeals, in an excellent opinion written by Judge Kenneth Hixson, which cites to my co-authored book on the FOIA, rejected Tom Carpenter's arguments, and (2) Tom Carpenter says he intends to appeal the the Court of Appeals' decision, wasting even more tax payer dollars, while simultaneously pursuing an anti-transparency agenda?  

Mayor Scott, if you want to pursue your "ACT Plan" of remaining Accountable, Clear, and Transparent, you might want to alert your City attorney.  I'm not sure he got the message.