Troy, Michigan Criminal Law Blog

Does the 2nd Amendment guarantee a right to concealed carry?

The law-suit that many in the gun community have been waiting for is finally here.  This week - on the heels of the landmark U.S. Supreme Court decision in McDonald v. City of Chicago - the Second Amendment Foundation (SAF) filed a federal civil rights case in New York seeking a permanent injunction against enforcement of a state law that allows concealed carry, also known as CCW, licenses to be denied because applicants cannot show "good cause" for obtaining a permit.  The lawsuit asserts that the requirement to demonstrate "good cause" for the issuance of a permit violates the Second Amendment.  See Kachalsky v. Cacase, U.S. Dist. Ct. S.D. N.Y. 10-05413. 

City of Troy tells drivers to pay attention or pay up!

The Troy, Michigan City Council has a message for you - as of July 29, 2010, do not drive distracted, do not eat behind the wheel, do not comb your hair, do not pet your dog.  Effectively, do not do anything other than keep both hands on the wheel.  If you do, you could face a ticket for violating a new local ordinance.  Be careful out there.  The police will no doubt use this new ordinance as a pretext to investigate other matters.

The local ordinance goes into effect July 29,2010.  Fine amounts for the primary offense have yet to be established by a local district court.

Monday, in the case of McDonald v City of Chicago, the Supreme Court ruled that the Second Amendment extends throughout the United States and protects gun owners in every state and municipality.  The Court unequivocally affirmed an individual's right to own handguns for self-defense.   While gun-control laws may still be legal, the Court has also effectively prohibited states and localities from complete bans on gun ownership.  In short, gun control efforts will be subjected to constitutional scrutiny and analysis.  If restrictions go too far, courts are likely to find such restrictions unconstitutional.

By a 5-4 vote, the Supreme Court said that a Chicago law with a blanket prohibition on handgun ownership is too restrictive. The decision follows the ruling in District of Columbia v. Heller, a 2008 case that struck down Washington D.C.'s blanket ban on handguns.  That case already addressed the meaning of the Second Amendment and affirmed citizens' rights to own handguns.  However, Heller only applied in federal enclaves, such as Washington, D.C.

The McDonald decision on Monday - by way of the due process clause of the 14^th Amendment - extends the same interpretation of the Second Amendment to state and local levels.  Taken together, these rulings say that the Constitution bars federal, state, and local governments from banning handgun ownership altogether.

While the Court's ruling is certainly a victory for the Bill of Rights and individual freedoms, the long-term practical impact of Monday's ruling on gun-control remains uncertain.  For now, Monday's ruling is only likely to affect the gun laws in Chicago and Oak Park, Illinois. 

However, Monday's decision is truly a landmark ruling.  I anticipate it will be used to challenge other restrictive gun laws in cities and states throughout the country.  Of course, there will still be limits on the right to keep and bear arms, just as is the case with other constitutional rights.  And there will certainly be future litigation to define these limits.  But for now, the Supreme Court has settled the debate on whether the 2^nd Amendment confers a collective or an individual right - score one for the individual.

MICHIGAN TEXTING WHILE DRIVING

LAW EFFECTIVE JULY 1, 2010

Starting this Thursday, July 1, 2010, Michigan motorists will have a new law to worry about.  Designed to make the roadways safer, MCL Section 257.602b makes it illegal to "read, manually type, or send a text message on a wireless 2-way communication device that is located in the person's hand or in the person's lap, ... while operating a motor vehicle that is moving on a highway or street." 

If you violate this law by texting or e-mailing while driving, you will be committing a civil infraction punishable by a $100 fine for a first offense and a $200 fine for a second offense.  However, no points will be added to your driving record for a violation.  The law is silent on the consequences for more than two offenses.

The prohibition against texting while driving does not apply to a person who is:

·         Reporting a traffic accident, medical emergency, or serious road hazard;

·         Reporting a situation in which the person believes his or her personal safety is in jeopardy;

·         Reporting or averting the perpetration or potential perpetration of a criminal act against the individual or another person; or

·         Carrying out official duties as a police officer, law enforcement official, member of a paid or volunteer fire department, or operator of an emergency vehicle.

How the police will determine whether you are texting (illegal) or dialing numbers to make a phone call (still legal) remains to be seen.  How aggressively the police will use this new law to investigate other potential criminal offenses is also an open question.

One thing is certain, I expect to see more motorists pulled over starting July 1, 2010.  I also expect to see more criminal cases for drunk-driving, drug possession, weapons possession, and similar offenses that started with a traffic-stop for an alleged violation of Michigan's new ban on texting while driving.

Supreme Court Curtails Miranda Rights - Now What Do We Do?

Yesterday, in a Southfield, MI murder case the United States Supreme Court dealt a shocking blow to your Constitutional rights. In essence, the Court gutted the People's right to remain silent under the long established Miranda Warnings.

Now, according the Supreme Court's 5 to 4 decision in Berghuis v. Tompkins, 08-1470, decided June 1, 2010, if the police read you your rights, your silence is no longer golden. Instead, you must speak up and specifically tell the police that you want to remain silent and that you will not answer any questions. If you do not "affirmatively assert" your right to silence, all bets are off. If you do not affirmatively tell the police you refuse to answer questions, the police may interrogate without restriction - as long as they want - until they get you to say something.

The critical lesson of this case is this: if you are ever confronted or questioned by the police, you MUST specifically tell them that you want to remain silent and that you refuse to answer questions. Just sitting there saying nothing for hours on end is now insufficient to invoke your right to remain silent.

Because of yesterday's court decision, remember to respectfully and politely tell the police the following:

1. I do not want to speak with you.
2. I refuse to answer questions.
3. I would like to speak with my attorney.

Then, do not waiver and stand firm on your constitutional rights.

If and when the time comes that making a statement is in your best interest, you will have ample time to do so - after consulting with an experienced criminal defense attorney. Until then, tell the police you want to stay silent and that you refuse to answer questions. Also, ask for a lawyer. Then shut up! In the long run, this approach may keep a bad situation from getting worse. It may also keep you from going to prison.

Copyright June 2, 2010, Law Office of John Freeman, PLLC

www.formerfedlawyer.com

There are many lessons to be learned from the downfall of former Detroit Mayor Kwame Kilpatrick. Among them is this: when your Detroit criminal defense attorney works very hard and earns you probation instead of prison at your initial sentencing, you must do everything in your power to comply with each and every condition of your probation. You must comply even if you do not want to. You must comply even if you do not agree. You must comply even if you do not think it is fair. If you do not comply, you must be prepared to face the consequences.

For Mr. Kilpatrick, that means 1.5 to 5 years in prison. And he will still owe all the money when he gets out.

The Importance of Contacting Experienced Legal Counsel. . . Before Charges are Filed.

Prosecutors are increasingly being admonished or penalized for trying to stop or influence the testimony of potential defense witnesses. Recent media articles contain examples of the prosecution abusing its power to influence defense witnesses. Sometimes, they use their power to convince people not to testify for the defense. Other times, they resort to threats and intimidation to "convince" people not to testify for the accused. See Laurie L. Levenson, Interference with potential defense witnesses, 32 Nat'l L.J. 18 (Col. 1) (4/5/2010).

Because you do not know if your case will involve an unethical prosecutor, it is critical that you contact a criminal defense lawyer at the first hint of trouble - even if you just think you may be under investigation. It is particularly important to contact a lawyer before charges are filed. This could help preserve evidence and witnesses before the prosecution gets a hold of them. You cannot be sure that favorable witnesses will remain favorable after the prosecution has talked to them.

When you pick an attorney, it is critical to contact someone that not only has experience to find favorable evidence, but who also is plugged into a network of private investigators who know the proper and ethical steps to preserve favorable evidence. This way, if you are ever charged, you will have access to all the evidence in your favor - not only the physical evidence, but also the testimony of witnesses.