Are Firearms The Real Problem or People Who Abuse them?

With the escalating scourge of mass killings, we are obliged to examine both the underlying causes of and potential solutions to drastically reduce mass shootings, by those with depraved and evil minds, sociopaths, psychopaths, terrorists and barbarians who without any conscience (morals) whatsoever use military style assault weapons and/or stockpile and then utilize huge quantities of bullets and large quantities of ammunition magazines to murder innocent and unsuspecting individuals regardless of age, race, sex,  .

It is noteworthy, the subject of colossal shootings is complex and there are clearly two sides of the equation. Moreover, these concerns are not new; sadly and repeatedly have political overtones. Hence, it is hoped the reader of this blog will perform his/her own search on the internet to review state and federal firearms laws, exceptions, limitations and other issues, including actual statistics. We should be mindful that these are serious and horrific acts, yet we need to acknowledge there also are far more deaths that are due to other causes (such as deaths due to driving under the influence, but for the sake of this comment only and albeit an over simplification and generalization, but we do not outlaw or seriously limit the sale &/or consumption of alcohol).

Proponents of gun control claim we need stricter gun control laws. Opponents claim we already have strict regulations, and in those jurisdictions that have “gun-free zone” laws in which it is prohibited from having a firearm these locations have a far higher number of shootings.

First, it is noteworthy, that the Federal Gun Control Act, enacted in 1968, establishes a list of those (such as felons) who are prohibited from possessing, obtaining or receiving firearms and ammunition. In addition, there are many other restrictions as to the sale, use, possession, transfer, etc. of such weapons. Click the following link for the 247 page Federal Firearms Regulations: Federal Reference Guide

Second, California has one of the strictest gun control laws in the United States. Yet, the recent shootings in San Bernardino, a large metropolis in California, occurred even though assault weapons were used and are already against the law. Also, California has a huge number of restrictions, such as limiting large capacity magazines that hold a dozen or more bullets. Click the following Link for the California Firearms Laws summary: California Firearms Law

Is the solution to enact tougher gun laws? If so, why did the most recent shootings occur in three states (California, Colorado and Oregon) that already have very strict gun laws?

Some pundits argue the states that have the most lenient rules and regulations regarding firearms have the lowest number of mass shootings; perhaps, because terrorists look for sites where they will not face opposition by individuals that “carry” weapons. Maybe that is one of the reasons movie theaters and malls, shopping centers, schools, churches and social centers, etc. have been the place of choice and selected by such terrorists. These same pundits encourage individuals to arm them self to be able to defend and/or fight back; they note that police cannot be on every corner and the drive time to respond is too great to risk your death or anyone else in the interim. Some advocate we urge our legislators to pass emergency legislation to increase the number of police, sheriff and FBI, and give them the power they need to accomplish their job.

It is hoped this blog will open a further dialogue in the reoccurring debate that includes many who claim taking away &/or more severely limiting those law abiding individuals who desire to possess and/or carry firearms will not prohibit the lawless, who it seems inevitably find ways to obtain whatever weapons they desire, whether illegally or not. Choose the narrative you feel comfortable with, but be open to seeking a realistic solution that is based upon logic, reason, and, of course, our United States Constitution, and not political rhetoric. Contact your state and federal legislators to voice your opinion.

Los Angeles County Deputy Sheriffs Charged with Corruption and Civil Rights Violations

Charges were filed yesterday that involve approximately 17 current and 2 former deputies who have been accused of beating inmates and visitors, falsifying reports, as well as obstructing justice, conspiracy and corruption. The criminal complaint and grand jury indictments contain, among other charges against the deputies, allegations that records were falsified, visitors to and inmates at the L.A. County Jail were unlawfully detained and excessive force was imposed. One of those charged was a Lieutenant who oversaw the safe jails program and another Lieutenant was responsible for investigating allegations of crimes committed by sheriff’s personnel. Three deputies were also accused of mortgage fraud.

The U.S. Attorney said “These incidents…. demonstrated behavior that had become institutionalized [and] shows how some members of the Sheriff’s Department considered themselves to be above the law.”

County Sheriff Lee Baca said he has made improvements to the Men’s Central Jail, such as a newly hired head of custody, reorganizing the command staff, and to create a database to track inmate complaints.

The fact remains that while there have been enhancements and changes to the L.A. County jails, and they have been under scrutiny for brutality and corruption, the ongoing investigations seem to have taken far too long to rise to the level for charges to be ultimately filed.

What Evidence is Required to Establish Aiding and Abetting a Crime?

On November 12, 2013, the U.S. Supreme Court in the case of Rosemond v. United States, #12-895, on Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit, heard oral arguments.

The underlying case involved the issue of whether the jury instructions were adequate and the offense of aiding and abetting the use of a firearm during a drug trafficking offense can be established by the mere fact an individual knew (he had foreknowledge) the principal offender had a firearm or there must be proof that the individual acted with actual intent to encourage &/or enable the use of the weapon by the accomplice and, therefore, there was actual intent to further the crime in question. The various U.S. Circuit Courts of Appeal have been divided on interpreting the law, although in California the Ninth Circuit requires purposeful intent.

This is a fundamental issue that has been raised in countless situations; for example, the driver of a vehicle (wheelman) &/or a passenger in a car is aware an accomplice is carrying a weapon during a bank robbery. Criminal defense lawyers have maintained that knowledge is not intent, and this individual needs to intend the gun be used by the accomplice. The government has argued in these cases that if one participates in a crime knowing his accomplice has a gun then that constitutes intent to facilitate; they maintain it is irrelevant if the person wants his accomplice to use it or not.  

Besides the disparity in standards of proof in the various circuit courts, the significance in the case at hand goes to the huge sentence enhancement imposed upon the defendant, namely 14 years instead of 5 years as a result of the disparity in the particular and minority tenth circuit.

The official transcript of the oral argument in the Rosemond case can be viewed at

http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-895_8m59.pdf

15 to face indictments in South Bay case (Sam Spital)

Commentary by Sam Spital, Criminal Defense Lawyer:

“A previous criminal probe involving officials in three school districts in San Diego County has expanded to now include 15 who were indicted for 232 felony and misdemeanor charges related to bribery and conspiracy in an ongoing ‘pay for play’ corruption case in connection with construction contracts entered into by district officials was reported by the UT News on January 7, 2013. The case involves campaign contributions, tickets to plays and sporting events as well as lavish meals, etc. in exchange for multi-million dollar school construction bond contracts.

At least one defense counsel was reported to be discussing a severance of the multiple cases so all of the defendants are not prosecuted together. The public’s interest in receiving information regarding the criminal case and the defendants’ right to due process and to have a trial free of adverse publicity has to be balanced by the court, with such a claim likely to be made by at least one of the defense counsel. The court will also have to manage this complex case with over a dozen defense counsel seeking to make a series of arguments and motions on behalf of their respective clients. Also, this case will no doubt proceed over many months, and here will be some defendants who will enter guilty or nolo contender pleas (plea in which one declines to admit or dispute the charges); it is even possible immunity may be given by the prosecution to some of the offenders if they have not done so already in helping to build their case. In spite of all of the allegations and innuendos, one always needs to be cognizant of the fact a person must be deemed innocent until proven otherwise.”

–Sam Spital

CHILD PORN SWEEP FOR SUSPECTS NETS SEVEN IN COUNTY – 245 arrested across 35 states recently; no victims locally (Sam Spital)

Commentary by Sam Spital, Criminal and Sex Crime Defense Attorney:

“UT San Diego news reported January 4, 2013 that Homeland Security Investigations (HIS), U.S. Immigration and Customs Enforcement (ICE) and the Center for Missing and Exploited Children (NCMEC) participated in a national child predator sweep entitled Operation Sunflower in which seven individuals in San Diego were arrested for 20 felony charges of attempted molestation of a minor under age 14, along with distributing and possession of child pornography. It was revealed that one of the children was 19 days old and five of the victims were under age 3. The defendants range in age from 25 to 57, and one was listed as a teacher in the Chula Vista Elementary School.

The article did not contain any other details regarding the suspects, the presence or lack of a criminal history, nor any discussion regarding possible arguments on behalf of the individuals, mitigation and/or evidence of remorse. It strains credulity that far too many stories fail to provide a balanced account of a totality of the facts and circumstances. Perhaps on a re-examination of the underlying goals in publishing news that fully informs the public the editors will require a full and complete report.”

–Sam Spital

22 students arrested in drug sting (Sam Spital)

COMMENTARY BY SAM SPITAL, CRIMINAL DEFENSE ATTORNEY- SAN DIEGO:

“Fox 5 digital news reported on December 12, 2012 an illegal drug ring was discovered by an undercover drug investigation in which officers posed as students in several high school campuses in the Temecula Valley area of Riverside County, a community adjacent to San Diego. In total there were 22 arrests of which 20 minors were taken to Juvenile Hall and 2 adult students taken into custody were arrested for sales of narcotics and child endangerment. Seized in the sting were cocaine, heroin, methamphetamine (meth), ecstasy, LSD, marijuana and illegal prescription drugs.

It strains credulity that so many of our youth fall into the trap of experimenting with and/or using drugs to feel good. Life has many challenges, but equally true is the fact there are far greater opportunities. However, we have to question whether our schools are providing sufficient information, case studies and material in their curriculum as well as using appropriate resources to build self-esteem, positive values, goals and dreams to motivate students to achieve happiness. Instead, far too many students experiment with drugs in order to get ‘high.’ Substituting artificial, extremely dangerous and addictive drugs only to provide an extremely short lived result can only lead to a trap as in the case of quick sand, offering no long term pleasure, relief &/or remedy while posing the risk of a life time of further complications as well as death. Although so much money is spent to solve social ills and problems, it hardly seems to have had a sufficient impact to reduce the scourge of illegal possession, use and sales of drugs and narcotics.”

–Sam Spital

San Diego CBP agents seize drugs worth $253,550 (SAM SPITAL)

“Clearly, the continued escalation of drug smuggling evinces the growing use of and seemingly unending reliance upon drugs by individuals who cannot tolerate their daily life challenges.

~ Addiction is a never ending cycle that demands rigid adherence to known and successful recovery programs.

~ Better education, developing proven life skills, and utilizing accepted and successful support systems can help reduce this scourge.

The role of defense counsel, among other things, is to identify weaknesses in the prosecution’s evidence; find all of the procedural errors, if any; marginalize the opponent case; and, emphasize the mitigating facts and circumstances.

The overriding premise is that everyone deserves a full and fair hearing, and even though accused of a crime are innocent unless and until proven guilty. It is too easy to rush to judgement based upon media accounts that far too frequently do not provide a balanced report.”

Sam Spital, Criminal Defense Lawyer

People v. Jones Summary (Drug Trafficking; Conspiracy; Search & Seizure Defense)

In a nine to zero opinion entitled UNITED STATES v. JONES, No. 10-1259, the U.S. Supreme Court, on January 23, 2012, http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf affirmed the U.S. Court of Appeals decision that reversed the U.S. District Court criminal conviction of drug trafficking and conspiracy charges. The Supreme Court confirmed the police conducted a search or seizure within the meaning of the Fourth Amendment when it attached and monitored a GPS device to a vehicle. Although there was a warrant issued to the Government, it required the tracking device to be installed within 10 days, but it was actually installed on the 11th day. Therefore, it was deemed a warrantless search in violation of the reasonable expectation of privacy, and the District Court should have suppressed the evidence. As a result of the Supreme Court granting certiorari (after the DC Circuit Court previously denied a petition for a rehearing by the Government), the U.S. District Court sentence to life imprisonment that was reversed by the U.S. Court of Appeals was affirmed. It is noteworthy that the Supreme Court did not decide whether installing a GPS device requires a warrant, and if not, whether monitoring a GPS device over a very brief period of time, such as a couple days, requires a warrant.