Posts Tagged ‘stupid laws’

Defend yourself at your peril

December 19, 2010

The following information was sent to me regarding a case that will be going to court in Ontario. It has had no media attention to date, although the initial arson attack may have been reported in the local newspaper, although I wasn’t able to find any reference when I did a search.

A Port Colborne man was forced to flee his burning home at night this past August as three masked men threw burning Molotov Cocktails through his windows and shouted that he was dead.

He apparently has now received a Christmas present from the Welland Crown Attorney’s office in the guise of a special delivery complete with police notes and a screening sheet where the Crown indicates it wants to prosecute him to the full extent of the law and is asking for jail time.

His crime? He tried to defend himself from his attackers.

The gentleman in question has had neighbour problems and has received death threats from his neighbour, who was charged but never received any jail time.

In fear of his life the man installed, at the cost of $20,000, a video surveillance camera which did capture the Molotov Cocktail attack and him escaping his burning home as the fire bombers continued to shout they would kill him.

He was also on video allegedly shooting a pistol in an attempt to drive the attackers away.

He was charged under section 86 and was led to believe the charges would be dropped, but in a surprise move in late November another section 86 and a section 88 charge were laid. Now the official position is the Crown counsel wants to lock him away.

The man had been injured at work and is now a full time student at Brock University studying Environment Engineering.

His guns are licensed and registered, but since August they have been seized by the police leaving him at risk for another attack.

The police have not apprehended the fire bombers although believe they can charge two of them but will not do so until all three are known.

The Ontario Fire Marshal told him he was the subject of an attempted murder and he is, with good reason, still in fear of his life.

I really wonder what the police and the prosecutor expected this guy to do? Stay inside and have the house burned down around him? Go out unarmed and confront three thugs who are shouting death threats at him?

The police ‘believe’ they can charge two of the attackers but won’t until the third one is known? It would be interesting to have that explained in rational terms.

The police and the bureaucracy seem far more inclined to put the full force of the law against the victim rather than the perpetrators.

I guess the question is: What in hell has this country come to?

Maybe the answer is that we have allowed our politicians and bureaucrats to write stupid and restrictive laws that allow our justice system to find a crime in almost anything you do. The police love it and many private citizens often support these kind of laws because they think it will only be applied to the ‘bad guys’. But when they innocently run afoul of these laws they are dragged away screaming, ‘it’s not supposed to work this way’. Well yes, that’s exactly what it was meant to do.

Sure, this fellow may get into court and find an intelligent judge who recognizes the injustice and dismisses the charges. But that might be two or three years down the road and $20,000 later in legal fees. Plus the police will have had his firearms in storage for that time and even if he gets off from the charges he will have to fight some more to get the police to give them back, because they are going to want to destroy them.  And 5 will get you 10 that the guys who torched his house and threatened his life – if they have been charged at all – will have walked and will probably be laughing up their sleeves about how ‘justice’ works these days.

Read the detail (below) on Sections 86 and 88 of the criminal code to see how the weasel words allow the police and the prosecutors to proceed with charges on subjective interpretations.

*********************

Note:
Section 86.(1) Careless Use Of A Firearm – Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.
(2) Contravention Of Storage Regulations Etc. - Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mailorder sales of firearms and restricted weapons.
(3) Punishment – Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable offence and liable to imprisonment
(1) in the case of a first offence, for a term not exceeding two years, and
(11) in the case of a second or subsequent offense, for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

Section 88.(1) Possession Of Weapon For Dangerous Purpose
– Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

(2) Punishment – Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.

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Water safety and another dumb law

July 10, 2010

On numerous occasions I have lamented about the stupid laws that get passed by elected officials (here and here are just a couple of instances). Which is why I was pleased (and amused) to see Chris Seeley’s column in the National Post ripping apart the federal government’s attempt to make the waters of Canada safe through its pleasure craft operator’s licencing system.

If the gun registry does die, where will government-haters direct their ire? Easy. I submit that the federal government’s Pleasure Craft Operator Licence has now usurped the long-gun registry as the worst, most insulting, do-nothing undertaking currently being inflicted on law-abiding Canadians. And the Conservative government is foursquare behind it. Their only possible defence is that it cost less — so far — than the gun registry.

A brief history: Once upon a time, the news was full of people, most of them inebriated, who were driving powerboats into docks, other people, other boats, channel markers, islands and anything else not made of water. Folks were dying. The government needed to be seen doing something. So they decided to license boaters — but not in the way governments license drivers. For some reason, that would have been overkill.

Instead they went with something cheaper that still looked useful to the untrained eye — something perfectly in keeping with the quintessentially Canadian notion that stupid behaviour like, say, drunken wakeboarding, can be prevented by telling people that drunken wakeboarding is stupid behaviour: A stringent written test.

[snip]

Not so shockingly, people are still dying on the water. In a particularly gruesome incident on Shuswap Lake in British Columbia last weekend, a power boat launched itself into a houseboat, killing the occupant of the latter. Police are suggesting alcohol, excessive speed and lack of running lights may have been factors — which means, obviously, that people need to be told that driving too fast, drunk and without lights in the dark is a bad idea. One more time ought to do it.

So Transport Minister John Baird is promising tweaks to Canada’s farcical boating licence: “new standards … to improve Internet testing,” a spokesman told The Globe and Mail; a requirement to demonstrate that boaters have read the study guide (I can see it now: “Click here to affirm you have read the study guide”); and, my personal favourite, more questions.

The Pleasure Craft Operator Licence has been with us for a few years now and has been pretty much considered a joke since its inception. But even at this late date it is enjoyable to see it get the recognition it deserves.

But the problem – as with all legislation – whether it is bad, stupid, useless or all three is that the chances of it ever being rescinded are zero or worse. Once on the books, dumb legislation tends to haunt us forever.

Silencers and ineffective, silly and pointless laws

June 15, 2009

The other day, obviously having nothing more important on my mind, I got to thinking about the illegality of silencers as applied to firearms. Now I don’t have an extensive background on silencers or suppressors, as Wikipedia likes to categorize them, but years ago I actually had the opportunity to shoot a German made .22 rimfire rifle that had been manufactured with a silencer as an integral part of the barrel. The story was that in Germany big game hunters would keep the silenced smallbore rifle with them in their stand to pot small game without the fear of disturbing other game in the process. It was rather a neat gun. Also many years ago, while on a coaching course with the Shooting Federation of Canada at Fort Benning Georgia, I had the opportunity to shoot some centrefire rifles complete with silencers and shooting sub-sonic ammunition.

But I digress. What did occur to me is that silencers would, in many instances, be extremely useful and certainly have no detrimental effect on public safety. For shooting ranges it would solve the noise problem which would be of enormous benefit. For all shooters, suppressors would significantly reduce hearing damage and for hunters there would be the benefit of game not spooking from the crack of the rifle on a missed shot. Kind of a win-win situation.

So why – I said to myself – are they illegal or at least so heavily controlled in so many places?

In Canada, a device to muffle or stop the sound of a firearm is a “prohibited device” under the Criminal Code.[13] A prohibited device is not inherently illegal in Canada but it does require an uncommon and very specific prohibited device license for its possession, use, and transport. Suppressors cannot be imported into the country.[14]

The United States taxes and strictly regulates the manufacture and sale of suppressors under the National Firearms Act. They are legal for individuals to possess and use for lawful purposes in thirty-eight of the fifty states. However, a prospective user must go through an application process administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which requires a Federal tax payment of US$200.00 and a thorough criminal background check. The $200.00 buys a tax stamp, which is the legal document allowing possession of a silencer. The market for used suppressors in the U.S. is consequently very poor, which has driven innovations in the field (buyers want the height of technology, because they are basically “stuck” with the purchase). Primitive suppressors are available in other countries for under US$40,[15] but they are usually of crude construction, using cheap materials and baffle designs that were obsolete in the United States by the 1970s. While suppressors in the US are more expensive (hundreds to thousands of dollars), they are generally built with highly advanced baffle stacks and exotic materials like Inconel and high-grade heat-treated stainless steels. Several states and municipalities explicitly ban any civilian possession of suppressors.

The Federal legal requirements to manufacture a suppressor in the United States are enumerated in Title 26, Chapter 53 of the United States Code.[16] The individual states and several municipalities also have their specific requirements.

The question is: Why have silencers been demonized and banned and ultra-severe penalties been set?

There doesn’t appear to be a lot of information available on the history of silencer/suppressor laws, but I did find this excellent paper titled Criminal Use of Firearm Silencers written in 2007 by Paul A. Clark. The abstract sums up the situation neatly.

Both the public and sentencing judges regard silenced firearms as more dangerous than ordinary unsilenced firearms, and the federal penalty for possession of a silenced firearm during crime is a 30-year mandatory minimum. The assumption that silenced firearms are more dangerous than ordinary firearms has never been empirically researched. This study examines federal and state court data to compile statistics on who is being prosecuted for possession of silencers and what crimes they are used to commit. This data indicates that both on the federal and state level those prosecuted for crimes involving silencers are far less likely to have a criminal record, and are far less likely to actively use their weapon than those people convicted using ordinary unsilenced firearms.
The data indicates that use of silenced firearms in crime is a rare occurrence, and is a minor problem. Moreover, the legislative history of silencer statutes indicates that these provisions were adopted with little or no debate. The silencer penalty has been justified by a need to crack down on “professional criminals” or to punish people using “dangerous weapons.” The evidence suggests that 30-year minimum sentences make no sense. Mandatory minimums should be repealed and sentencing judges permitted to treat each case on an individualized basis.

I was thinking recently about how pointless many laws are. Too often legislation is written and passed in an attempt to solve (or appear to be attempting to solve) some real or perceived problem, but without any intelligent consideration as to whether there is any logical or practical value to the legislation. Silencer laws seem to fit neatly into that category.

It’s not that anyone would be hard pressed to obtain a working silencer as there is a volume of information available on the internet and construction plans are easily available as well. So if a criminal thought that it would be advantageous for him to have a silenced firearm there would be little to stop him from doing so. Again it turns out that like most laws of this type the people it controls is the law abiding citizens and has no effect on the criminals who don’t obey the laws anyway.

The author of the paper mentioned above did come up with some historical background on how silencers became dangerous in the eyes of the courts and the politicians.

Legislative History of Federal Silencer Regulation

The history of silencer regulation is complicated, and the documentation of why various provisions were passed is sparse. Courts that have tried to determine the legislative history of some of these provisions have expressed dismay at the paucity of information in the legislative record (U.S. v. Hall, 171 F.3d 1133, 1139-40 (8th Cir. 1999)). Scholars who have examined the history of gun control statutes in general have concluded that they tend to be the result of complex compromises and determining legislative purpose is difficult (Hardy, 1986: 585).

In 1934, the federal government began to regulate machine guns, sawed-off shotguns and silencers by placing a $200 tax on such weapons to discourage their sale (U.S. Congress, 1986b:219-220). The 1934 congressional debates provide no explanation about why silencers were licensed. Paulson (1996:10) opines that during the Great Depression, poaching game was thought to be a problem and silencers were licensed because of this concern.

In 1968 the federal government passed the first major federal gun control provisions. Anyone committing a felony which could be prosecuted in federal court received an additional one to ten years if a firearm was used (88 Stat. 1214, 1225 (Oct 22 1968)). The statute did not distinguish among different types of firearms, or include silencers.

In 1986 Congress adopted a 20-year enhanced sentence for crimes committed with a silencer–and this was increased to 30 years in 1988.6 Congressional debates contain no clear statement of reasons why the additional penalty for use of silencers was enacted. The House report on the legislation says little about silencers but describes them as “used in assassinations and contract murders” (U.S. Congress, 1986b: 4). The most thorough article on the 1986 Act, of which the silencer provision was one small part, does not even mention the silencer provision (Hardy, 1986:585). However, looking at the congressional hearings held on the bill, it is clear that the silencer  rovision was a reaction to the murder of a Jewish talk-show host by white-supremacists. Alan Bergwas a well-known radio personality in Denver, whose outspoken criticism of hate groups resulted in his murder in June of 1984. He was ambushed outside his home and riddled with bullets from a .45 caliber sub-machine gun.The murder was widely publicized and resulted in a book being written about it (Singular, 1987).

In December of 1984, the FBI raided the home of their prime suspect, Gary Yarbrough: When agents searched the home, they found the MAC-10 [.45 caliber sub-machinegun] and four crossbows, 100 sticks of dynamite, plastic explosives, hand grenades, semi-automatic rifles, infrared night vision scopes, gun silencers, booby traps, police scanners and 6,000 rounds of ammunition (“Aryan Group, Jail Gangs Linked,” Washington Post, Dec. 18, 1984, cited in U.S. Congress, 1986a:158).

It was assumed that the silencer had been used in the attack, because silencers were found in the same place as the apparent murder weapon. Witnesses testifying before the Judiciary Committee called attention to this possession of a silencer by the prime suspect. Sam Rabinove, Legal Director of the American Jewish Committee told the House Judiciary Committee:

I have with me several news articles, all of which in some way relate to the kind of racist
violence [which] saw the death of Allen [sic] Berg in Denver, with the Aryan Nations, the
Order, and other such racist extremist groups. In each of these articles, there is always the
mention of a silencer, or a 9mm handgun (U.S. Congress, 1986a:142).

It turned out that Yarbrough was not involved in the murder. In 1987 (long after the silencer provision had been adopted), two other members of the neo-nazi group were convicted of the murder and given 150-year prison sentences (“150-Year Sentences Given to Two Killers of Radio Show Host,” 1987). There is no evidence that a silencer was used. The murder was reported by neighbors who heard gunshots, making the silencer theory unlikely (Singular, 1987:19-20).

In any event, a number of witnesses assured the House Committee that machine guns and silencers were “basic tools of racketeers, drug traffickers and professional killers” (Statement of American Academy of Pediatrics, U.S. Congress, 1986a:167). There was no statistical evidence cited as to the incidence of silencers in crime. The Bureau of Alcohol, Tobacco and Firearms was asked to provide information on the incidence of machine guns in crime, but no one bothered to ask for any such data about silencers (U.S. Congress, 1986a:221; see also Hardy, 1986:673).7

Unfortunately, that is all the legislative record contains as far as silencers are concerned. Silencers were declared to be the tools of professional killers with no legitimate purpose. There are a number of other reasons one might advance for the silencer provisions which do not seem to have been considered. One might think that silencers are inherently more dangerous than other firearms. At least one court has declared that it is the dangerous nature of silencers which lead to their control (U. S. v. Dunlap, 209 F.3d 472, 478 (6th Cir. 2000)). Yet there is nothing in the legislative record to indicate the inherent danger of silencers was an issue. One congressman, before being corrected by the expert witness, thought silencers were used “to transform a gun into an automatic weapon” (U.S. Congress, 1986a:75). Otherwise, despite numerous people testifying against silencers at the hearings, no one actually claimed they were dangerous. Congressman Hughes, for example, in discussing the provisions regarding machineguns and silencers, began by declaring: “To have an operating machinegun in somebody’s house, it is a dangerous weapon. It is extraordinarily dangerous. It really is.” He then went on to discuss silencers in a totally different vein, merely declaring that there was no reason “why a sportsman would want a silencer” (U.S. Congress, 1986a:759-60). One might think that silenced firearms are more likely to be discharged than a normal firearm, or that they make it easier for a criminal to get away with a crime. No reasons for punishing use of silencers were advanced; the constant refrain was that these devices were used exclusively by professional criminals.

So in effect, silencers were demonized and banned in the U.S. because some politican at the time sold the legislature and the public a bill of goods on how banning silencers on firearms would stop violent criminals from quietly killing people. And the police chiefs of the day would have nodded their heads and said “Yes, yes, we need this law because if don’t, we won’t hear the gang members shooting each other we won’t know where to go to arrest them”. Other countries, including Canada, went along with the same kind of nonsense.

Doesn’t this all sound a little too familiar?


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