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President Joe Biden supports a ban on assault weapons like the one that has been in place in California since 1989. On June 4, however, Roger Benitez, United States judge for the Southern District of California, ruled that California's ban is unconstitutional.

The judge is probably correct.

Benitez's ruling is a peculiar piece of work for a document that aspires to serious legal analysis. The ruling's tone and the judge's personal high regard for assault weapons are obvious in its first sentence: "Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment."

Elsewhere Benitez's prose smacks of the oppression that pro-gun advocates claim to endure at the hands of anti-gun zealots: "Under this relaxed test a state could enter a person's home without a warrant and seize him or his guns in violation of the Fourth Amendment prohibition of searches and seizures without a warrant." This is paranoia worthy of an NRA lobbyist.

Benitez devotes a couple of pages to breathless descriptions of six cases in which homeowners used AR-15s to thwart home invasions, but he doesn't acknowledge that this is anecdotal evidence, which should be of questionable standing in legal analysis.

The judge also doesn't note that, according to FBI homicide data, for every "justifiable" gun homicide in 2012, there were 34 criminal homicides, 78 suicides and two accidental gun deaths.

And how common are home invasions? Judge Benitez says, "it surely happens a lot."

All we really need to know about the sketchy nature of this ruling is this unhelpful sentence from page 47: "More people have died from the COVID-19 vaccine than mass shootings in California." That can't be true. In fact, it's not, suggesting that we should view the entire document with some skepticism.

Our American infatuation with firearms is regrettable. The daily carnage is tragic. And the emergence of the AR-15 as the essential icon of a disgruntled minority who are angry, fearful, aggrieved and hostile to government is ominous.

Nevertheless, despite his bias, Benitez probably got it right about the unconstitutionality of an assault weapons ban, and his ruling is a good predictor of the result if the issue ever reaches our conservative Supreme Court.

The right to have a weapon for self-protection precedes the Constitution, a right so "natural" that the founders didn't bother to secure it by language any stronger than the slender reed of the Second Amendment.

The founders could not have imagined the killing efficiency of a modern assault rifle, any more than they could have imagined television, a Black president or a female vice president. For them, the "right to bear arms" implied muzzle-loading muskets. Still, if the modern hypothetical home invader is much better armed than in colonial times, the modern hypothetical homeowner has a right to be better armed, as well.

But even a constitutional right can be limited. The courts have held that citizens cannot own machine guns or bazookas. Some of the carnage might be limited by more rigorous background checks, mandatory training and demonstrated proficiency.

Even Benitez's ruling includes testimony (p. 30, p. 47) suggesting that the real culprit in mass shootings is large-capacity magazines. Reducing legal magazine size might help even the odds in the Great American Shoot-Out.

But in the meantime, our challenge is to find a way to live in a society drowning in guns, even as a hundred of us die every day by gunfire.

Tribune Content Agency

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Crisp: Learning to live with assault weapons - Chattanooga Times Free Press

ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT

On June 10, 2021, M/I Homes, Inc. (the "Company") entered into a FourthAmendment (the "Fourth Amendment") to the Company's unsecured revolving creditfacility, dated July 18, 2013, among the Company, the lenders party thereto andPNC Bank, National Association, as administrative agent (as so amended, the"Credit Agreement"). The Fourth Amendment, among other things, increased thecommitments from the lenders to $550.0 million from $500.0 million, extended thematurity to July 18, 2025, increased the required minimum level of ConsolidatedTangible Net Worth from $848.2 million to $946.2 million (subject to increaseover time based on earnings and proceeds from equity offerings) and increasedthe letter of credit sublimit to $150 million from $125 million. The FourthAmendment also provides an accordion feature pursuant to which the maximumborrowing availability may be increased at the request of the Company to anaggregate of $700.0 million, subject to obtaining additional commitments fromlenders and other terms and conditions of the Credit Agreement.

Interest on amounts borrowed under the Credit Agreement is payable at a ratewhich is adjusted daily and is equal to the sum of the one-month LIBOR rate plusa margin. The Fourth Amendment reduced the floor on one-month LIBOR to 0.25%from 0.75%, and decreased the LIBOR margin to 175 basis points from 250 basispoints (based on the Company's leverage ratio at March 31, 2021). The LIBORmargin is subject to adjustment in subsequent quarterly periods based on theCompany's leverage ratio. The Fourth Amendment also decreased the commitment feepaid quarterly by the Company on the remaining available commitment amount by 15basis points, to 30 basis points, which is also subject to adjustment insubsequent quarterly periods based on the Company's leverage ratio.Additionally, the Fourth Amendment increased the borrowing base advance ratesfor certain categories of inventory used to calculate the available amount underthe Credit Agreement. As of March 31, 2021, there were no borrowings outstandingand $66.7 million letters of credit outstanding under the Credit Agreement.

Certain of the lenders party to the Fourth Amendment are also lenders and/orserve as the administrative agent under a $175 million secured mortgagewarehousing agreement with M/I Financial, LLC, a wholly-owned subsidiary of theCompany, as borrower.

The foregoing summary is qualified in its entirety by reference to the FourthAmendment which is attached as Exhibit 10.1 to this Current Report on Form 8-Kand incorporated herein by reference. All capitalized terms not otherwisedefined herein are as defined in the Credit Agreement.

*Submitted electronically with this Report in accordance with theprovisions of Regulation S-T.

--------------------------------------------------------------------------------

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M/I HOMES, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet...

As calls for reform intensify in the aftermath of police violence, police departments can be expected to fiercely resist proposed changes that look anything like rules. I recently published a paper that shares the responses of officers who were asked the question: Can use-of-force practices be reduced to hard and fast rules that limit office discretion? The response, to summarize, was an emphatic no. Those interviewed thought that hard and fast rules would undermine the discretion officers need to confront unpredictable and often dangerous circumstances. The predominant view was that rules were not just ill advised in the use-of-force context but also incompatible with the demands of policing.

Contrary to these departmental claims, my research reveals that use-of-force rules not only exist but also are common. These rules are created by the very departments that deny their existence. Departments do not publish these rules, let alone write them down. Rather, during trainings, departments communicate hard and fast rules that limit officer discretion and disregard the relevance of factual variability. In reaching this conclusion, my research team reviewed use-of-force training videos used by agencies across the country. In our analysis of these videos, it became apparent that departments, however unknowingly, are imposing rules on their officers. The research also revealed that the nature of these rules, shielded from public scrutiny and input, often distributed the risks of potential (and unnecessary) harm to civilians.

If departments are in fact wrong that rules are nonexistent and incompatible with policing, what is the upshot? Accepting that rules have a place in regulating use of force expands the options for community intervention. Communities seeking use-of-force reform should feel empowered to disregard departmental resistance and insist on legislating rules that curb officer discretion. At a minimum, communities should require departments to transcribe their trainings. By doing so, the invisible rulescommunicated during training and already governing police encounterscan be revealed to permit public scrutiny. The point is not that rules are good or bad. Rather,contrary to what departments say, rules exist, and given that rules exist, members of the public should have a say in creating them. At the very least, the public should be apprised of what rules already govern police use of force in their community.

The Rule-Resistant View

My research team interviewed representatives from Peace Officer Standards and Training agencies (POSTs). POSTs regulate officer training requirements in each state. Many representatives previously held leadership positions in police or sheriff departments. Almost all dismissed the possibility that use-of-force practices could be reduced to rules, and emphatically so: Absolutely not and Its impossible were representative answers.

The most common rationale for the rule-resistant view was that a rule would undermine officer discretion needed to respond to fluid, unpredictable circumstances. Every situation will have countless variables. You can have two really similar incidents lead to two totally different outcomes. Everything varies a million different ways. Its impossible to have a set of rules that will anticipate a particular situation. The only thing black and white about my job is my cruiser. Representatives tended to view rules as flattening out the factual variability an officer confronts in the field. In their view, requiring officers to act a certain way would result in too little force (losing control) or too much force (causing unnecessary harm). One representative viewed any discussion over rule-making as pure hubris: A lot of people try to come up with answers. Youre a prophet in your own backyard.

Some representatives saw rules as unfair: [S]ubjects dont follow rules, so how can an officer be expected to do so? There was concern that any rule would undermine the critical thinking necessary for deescalation: Making rules puts the gun in [officers] hands one step sooner. Some saw any rule overrun by exceptions, obviating its utility: Can you [really] have a rule that prohibits chokeholds? What if the suspect grabs a gun, and the only option is to put the person in a chokehold? Some feared that removing officer discretion would be demoralizing: You cant legislate [reasonable force]. If we put rules and laws in it is not gonna work . No one will want to do this job.

Very few were open to the imposition of rules. You cant say in every situation, if ... this, then do that. But you can have rules at a macro level[,] said one. I think we can have some successful rules of engagement. ... [I]f you can anticipate certain things happening, then you can make rules. He was an outlier.

At the heart of the rule-resistant narrative is Graham v. Connor (1989), in which the Supreme Court interpreted the Fourth Amendment to require that the use of force be reasonable. The court held that reasonableness will depend on the totality of the circumstances, accounting for the officers incomplete information and the stressful, rapidly evolving nature of an incident. Graham is explicitly rule resistant, stating that an officers use of force can not be governed by a single generic standard. Importantly, the opinion was designed to establish the constitutional floor for officer adherence to the Fourth Amendment, not to deprive communities of the opportunity to impose a more restrictive code of conduct on their officers.

Yet, from hamlet to metropolis, Graham is the law, in large part due to the lobbying efforts of departments. As to the representatives interviewed, a recurring sentiment emerged: In the absence of rules, departments still followed the law, the law being Graham. Stick to Graham, were the concise words of one. As Rachel Harmon observed, the Graham standard is so vague it provides little functional limit on the use of force. It was Graham, for example, that permitted use-of-force expert Barry Brodd to sincerely assert that Officer Derek Chauvin, kneeling on a mans neck for nine minutes, acted reasonably. Graham, contends John Gross, leaves the reasonableness of force almost entirely up to the individual officer. Put another way, the Graham standard permits officers to judge the reasonableness of force for the rest of us.

If Rules Exist, Where Are They?

For the vast majority of law enforcement representatives that we interviewed, use-of-force rules do not and cannot exist. They are wrong on both counts. My research reveals that a rule-based approach not only is possible but also is a widespread practice. In coming to this conclusion, my research team analyzed use-of-force videos produced over 10 years by Lexipol, the largest provider of police training in the United States. Lexipol trainers identified conditions that required officers to act a certain way. These are rules. From many examples, here is one with deadly consequences. A Lexipol trainer stated, Officers cannot wait to react until they are absolutely certain of an individuals malicious intent. If an officer waits to be certain that the individual is retrieving a weapon, the weapon could easily be used against the officer before he or she has an opportunity to respond. Another trainer stated, You see officers hesitate [trainers] sitting back with perfect perspective [who know the officer will be harmed are thinking], shoot, shoot, shoot, shoot now . Pursuant to this training, if an officer perceives a civilian is reaching for a weapon, regardless of the circumstances, the officer is to use deadly force. Many jurisdictions in fact train this practice. I call it the waistband rule, as officers so trained will deploy deadly force if they perceive civilians reaching for their waistbands.

Like the waistband rule, rules indeed flatten out factual variability. Take an incident reported by a law student driving her car home from yoga. An officer checked her license plate. The car came up stolen. When this happens, training often dictates that officers call for backup, draw firearms, and order the civilian to walk backward toward officers and submit to cuffing. No exceptions. In the law students case, an officer pointed a long gun at her as she walked backward, terrified, toward the group of officers. The reported theft was two years old. But the records staleness had no relevance to officer conduct. Training deemed all facts irrelevant but for a single condition: Was the vehicle reported stolen? With this condition present, officers followed a rule that subjected the student to a serious risk of harm, regardless of the unique circumstances known to the officer that reduced any risk surrounding the stop.

From an operational perspective, it should be obvious that departments would impose rules. No employer would give unfettered discretion to employees, and no employees would want to go out in the field without rules of engagement. Despite what they say, departments are no different. And as departments impose rules during training, the stakes are high. Even mundane police encounters, contends Alice Ristroph, can quickly lead to violent results.

In fact, training can require an officer to use deadly force in a mundane encounter. Take the case of Paul Heenan, an inebriated man in need of assistance who was shot by Madison Police Officer Steven Heimsness. As locals wondered whether the officer committed murder, another question remained dormant: Did training require Heimsness to shoot Heenan? The Madison Police Department (MPD) provided the answer in a press conference, where trainers described how, according to MPD training, it would have been unreasonable not to have shot Heenan.

The incident occurred on Nov. 9, 2012. Heenan, new to the neighborhood, had joined his household, a young family, for dinner. After seeing some bands, he ended up at the Weary Traveler bar. Owner Bregan Fuller noticed Heenan was intoxicated when he staggered into the ladys restroom. It took time to coax from Heenan his place of residenceBaldwin Street, a few blocks awaywhere Fuller dropped Heenan off around 2 a.m. Forty-five minutes later, Megan OMalley, who lived on Baldwin Street, heard someone at the door. On the porch, her husband Kevin found Heenan, who, shivering, attempted to enter. Ascertaining Heenan was inebriated, Kevin assisted Heenan home, two doors down. Heenan, unaware of where he was, leaned into Kevin. With Heenan in tow, Kevin backed toward his house to get help. Kevin did not know Megan had called 911 to report a possible burglary. Dispatch radioed, Husbands wearing plaid pajama bottoms. Officer Stephen Heimsness arrived at the incident with his firearm drawn. Only after Heimsness yelled, Get down! did Kevin realize the figure emerging from the shadows was an officer. As Kevin stepped back, Heenan lost his balance and flailed toward Heimsness. Kevin yelled, Hes a neighbor! Heimsness pushed Heenan away and shot him.

The MPD deemed Heimsnesss actions reasonable. Facing public skepticism, the MPD held a public presentation that offered a glimpse into MPD training. First, offering a big-picture view, trainers Jason Freedman and Kimba Tieu emphasized that officers, thrust into situations with limited options and little information, always abide by three principles: (a) retain the advantage, (b) hesitation kills (the officer), and (c) only the suspect chooses to escalate or deescalate a situation. Turning to the incident, the trainers provided answers to their rhetorical questions by acting out possible scenarios. Why did the officer approach with a lethal weapon? In accordance with MPD training, Tieu stated, in high risk situations such as burglaries and home invasions where the threats are unknown, to start at a lower level of force would potentially allow the suspect to harm the officer or public. We dont know the civilians intentions, their motivation, their training, the equipment that they carry, or if theyre fleeing from something heinous that they just did, said Freedman. Felonious situations will be a firearm day.

The presentation continued. Freedman commanded, Get down! Tieu, playing the suspect, pulled a gun. Freedman reported an untrained person can produce a firearm and shoot the officer in less than a half-second. Tieu clarified that an unarmed civilian still presents a deadly threat. Returning to their places, Freedman said, Get down! Tieu lurched forward and grabbed the gun. What if the officer had attempted additional verbal commands to gain compliance? Resetting their positions, Freedman issued a first and then second command. Tieu aggressed. Freedman explained that by the time my brain physically is able to process noncompliance, now he has my weapon, I am unarmed, and [there is a] threat to the community and to myself. What if the officer had tried to holster his weapon? As Freedman attempted to do so, Tieu hit Freedman with a right hook. What if the officer attempted to step back? Freedman explained it is not possible to move back faster than the suspect moved forward. What if the officer had turned and run? As Freedman turned to retreat, Tieu put him in a headlock. What if the officer had not pushed Heenan away? As the two struggled, Tieu disarmed and shot Freedman. We think about what it takes to disarm [the officer], said Tieu, nothing at all, Im gonna rip the gun, and Ill apply deadly force to the officer.

Can rules be extracted from this impromptu training session? MPD training certainly limits officer discretion once certain conditions are present. Though the officer was responding to a mundane situation (a drunk person needing assistance), MPD training deemed it high-risk, which required the officer to draw his firearm. As Seth Stoughton observes, doing so creates a path dependence, limiting an officers ability to use other force options. This was certainly the case in Madison. When Heenan failed to comply with the command to get down and approached the officer, training dictated that Heimsness use deadly force. Are Madisonians in agreement with this rule that distributes risk to the civilian and increases the potential for unnecessary violence? We dont know.

In sum, my research indicates that departments often impose rules on officers during training. Again, departments reject this contention. If the [recruits] keep asking for rules, remarked one trainer, they should seek another profession. If [the recruit] asks me what to do in this specific case, said another, I cant answer. But trainers often do what they say they do not.

Looking Forward

What are the consequences of accepting the rule-resistant view? Under this view, public input is limited: Any proposal that interferes with officer discretion is rejected. Instead, a community is left proposing weak-tea standards, for example, that officers attempt to use time and distance approaching a scene. Such a standard leaves officer discretion intact; the officer determines what time and distance are appropriate in any situation. In this way, acceptance of the rule-resistant narrative deflects public intervention and waters down any attempted reform. Thus far, departments have had success convincing the public that rules cannot govern the use of force.

Part of the challenge for communities seeking change is to make visible the use-of-force rules that already exist but have long remained invisible. My research suggests communities that do so will discover rules that often distribute risk to civilians. The rule directing officers what to do when a car is reported stolen, for example, is fraught with danger and humiliation for the civilianas this video shows. The rules followed in the Heenan incident ensured that any harm resulting from the officers misperception was to be borne by the civilian.

And the waistband rule trained by Lexipolthat an officer use deadly force when the officer perceives a civilian to be reaching for a weaponhas left a trail of preventable harm and death. In a Los Angeles study, of 100 shootings resulting from the waistband rule, 61 of these individuals had no weaponthe officer was wrong. Of these 100 individuals, then, at least 60 should not have been shot. Under an alternative rule that is not trained(a) wait to confirm the presence of a weapon and (b) confirm the civilians intent to use the weaponslightly more officers would be injured or killed, but the number of civilians spared from injury or death would be dramatically higher. Perhaps the people of Los Angeles would agree with the sheriffs department that they prefer officers to follow the waistband rule. We do not know. The people of Los Angeles have no idea they are subject to this rule.

Use-of-force rules often lurk behind tragedies. When officers shot Jacob Blake for resisting arrest, shot Daunte Wright for evading misdemeanor arrest, shot Laquan McDonald for walking with a knife, shot Adam Toledo after he dropped his gun or shot 12-year-old Tamir Rice as he reached for his waistband, the officers were likely acting according to decision trees that, imparted through training, ironed out a need to assess the particulars of an incident and directed officers to act in ways that distributed risk to civilians.

Though departments say otherwise, use of force is often governed by rules that remain invisible to the public. These rules are not the product of compromise. Imposed during training, these rules reflect values that might be unacceptable to the public. The values and assumptions embedded in use-of-force rules deserve public scrutiny. The question, then, is not whether use of force can be governed by rules. The question should be this: Who gets to impose rules governing officer conduct: the police or the communities the police serve?

Originally posted here:
The Invisible Rules That Govern Police Use of Force - Lawfare

When Joe Biden nominated Merrick GarlandMerrick GarlandHouse Judiciary to probe DOJ's seizure of data from lawmakers, journalists Senate confirms Garland's successor to appeals court Outrage grows as Justice seeks to contain subpoena fallout MORE to be attorney general, many including me heralded Garland as an honorable, apolitical judge who would follow the law. He was not, the Washington Post editors insisted, a lackey who will serve as the presidents personal attorney like Donald TrumpDonald TrumpDOJ asks Supreme Court to revive Boston Marathon bomber death sentence, in break with Biden vow Biden looking to build momentum for Putin meeting DOJ tells media execs that reporters were not targets of investigations MORE's AGs. Garland has indeed followed the law, but some are not thrilled by where it has taken him.

President BidenJoe BidenFormer Rep. Rohrabacher says he took part in Jan. 6 march to Capitol but did not storm building Saudis picked up drugs in Cairo used to kill Khashoggi: report Biden looking to build momentum for Putin meeting MOREs Department of Justice (DOJ) has adopted some of the same positions taken by the Trump administration that a host of legal and media experts once denounced. This week, the DOJ sought to replace itself as the defendant in a lawsuit against Trump brought by writer E. Jean Carroll, who alleges that Trump raped her. The week before, it sought to dismiss a Black Lives Matter lawsuit over the clearing of Lafayette Park during a June 2020 protest.

This time last year, both positions were cited by legal and media experts as grotesque examples of then-Attorney General Bill Barrs political bias. Now, those same experts are silent as Garland takes the same positions Barr took in federal court.

Garland is free, of course, to reject prior legal positions of Barr, but he has reached the same conclusion as his predecessor on several points of law thus far. In yet another adherence to Trump-era policy, the DOJ will defend opposing the ability of Puerto Ricans to receive social security disability benefits before the Supreme Court. Likewise, Garland agreed with Barr that a DOJ memo finding no legal basis for an obstruction charge against Trump should not be released to the public in its entirety.

Is Garland a Trumpist mole, part of some deep state resistance to his own president? Or is the more likely alternative that some in the media and many others in politics or the law knowingly distorted past legal controversies to use those as political fodder against Trump?

The general lack of media criticism or even coverage has never been more striking than with the latest filing in the Carroll case. In November 2019, Carroll sued Trump,claiming he defamed herwhen he denied sexually assaulting her. She alleges that Trump raped her in a Manhattan department store dressing room in the 1990s.

The Biden administration has told the United States Court of Appeals for the Second Circuit that it rather than Trump should be the defendant because his comments were made as part of his official capacity as president. Said the Biden DOJ: "Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials' employment including when the statements were prompted by press inquiries about the official's private life."

That is the identical position taken by then-AG Barr last year.

A district court rejected that effort, and the Trump administration appealed. While I disagree with the treatment of any such statements as part of a presidents official duties, I stated at the time that there was support for the position in the governing federal statute and case law.

However, some media outlets featured an array of experts who denounced Barrs legal move. Vanity Fair was typical of the coverage with a column titled Bill Barr Sinks To New Low, Uses Justice Department To Try To Kill Trumps Rape Defamation Suit. In it, writer Bess Levin explained that the move proved that Barr was willing not just to do [Trumps] dirty work but to do it completely out in the open and without a scintilla of shame. Citing the DOJ effort to replace Trump as a party in the suit, Levin declared that experts confirmed that this special arrangement is wholly unique to Trump and his slippery, bootlicking A.G. She cited University of Texas law professor and CNN legal analyst Steve Vladeck and an array of other experts cited in a New York Times article. The Times wrote how some current and former Justice Department lawyers, speaking on the condition of anonymity, echoed Mr. Vladeck's concerns, saying they were stunned that the department had been asked to defend Trump in Ms. Carroll's case.

One would expect that these same media outlets and experts would denounce Garland now as another slippery, bootlicking A.G. doing Trump dirty work. But no.

The same is true with the Biden DOJ s recent filing in the BLM lawsuit. Last year news stories stated as fact that Barr ordered Lafayette Park to be cleared of protesters to make way for Trumps controversial photo op before St. Johns Church. From the outset, the Trump/Barr conspiracy claim had little support, and soon there were reports contradicting it. As I explained in mytestimony to Congresson the protest, the plan to clear the park area to establish a wider perimeter was due to an extreme level of violence by protesters over the preceding two days, including the injury of a high number of federal officers. The violence was so great that Trump had to be moved to a bunker.

Now the Biden administration is arguing that the BLM case should be dismissed. Moreover, it is advancing the same position as Barrs DOJ that Presidential security is a paramount government interest that weighs heavily in the Fourth Amendment balance. The DOJs counsel, John Martin, added that federal officers do not violate First Amendment rights by moving protesters a few blocks, even if the protesters are predominantly peaceful.

The Biden administration is not reluctant to change positions in litigation when it disagrees with the prior administration. However, in these cases the Biden administration insists that Barr was right on the law, even if it disagrees with Trumps statements themselves. That would likely come as a surprise to many viewers of CNN or MSNBC.

Reasonable people can disagree about such legal disputes but the point of much of the past coverage was that there was no real dispute, just raw political abuse by Barr.

As we watch the anger and divisions growing in our nation, we need to be honest about the role that media coverage continues to play in our age of rage. It is little surprise that many are enraged when legal experts state as a fact that the Justice Department is acting without legal basis; that makes for undeniably good ratings. Now that the ratings have receded, however, the law has again emerged with the Biden administration in full agreement with its predecessors legal arguments.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter@JonathanTurley.

Read more from the original source:
AG Garland resurrects the ghost of Bill Barr without the outrage | TheHill - The Hill

Compiled by Ankita Joshi

The Vanguard is an online news group that provides in-depth coverage of courts in California and around the nation. Since 2006, The Vanguard has been dedicated to transparency, democracy, open government and social justice. The team of 40 to 50 interns monitors live court proceedings in more than six different counties throughout California, from the Greater San Francisco Bay Area all the way through the Central Valley and towards Southern California. These are some highlights of this weeks coverage.

Monday June 7, 2021

Sacramento County Superior Court

Christopher Datu Dept. 63: Christopher heard various bail hearings, sentencings, and requests for continuance. Sarah Brown was sentenced for two separate but related charges. On April 2, 2020, Brown walked into a Chevron gas station and took various food items with no intent to pay. When the employees noticed and confronted her to retrieve the property, Brown pulled out and activated a taser to scare the employees. She stepped behind the counter to brandish it further and threatened the employees. Brown was later found and apprehended a short distance away with the stolen merchandise. The second charge was for car theft when on Dec 26, 2020 Brown and a codefendant Mark Harris forcibly stole car keys from the victim at gunpoint. The two defendants approached the victim on the street and flashed the gun on her, telling her to give up her car keys.

Brown held a lighter charge than her codefendant, only charged with the vehicle theft while her codefendant, Harris, bore the responsibility for the force involved as well as the theft. Brown pleaded no contest on both charges, leading Judge Patrick Marlette to order Brown to stay away from both Chevron and the victim of the vehicle theft, and sentenced to 233 days in jail plus fees and an amount of restitution decided by Chevron.

Yolo County Superior CourtMichael Wheeler Dept. 1, 14: Yolo 1 moved quickly through the schedule with few hearings of substance. Junsik Choi pled no contest to a wet reckless, for which he was given a year of probation, a fine of $1,705, and a 12 hour alcohol education class. Charles Falk also faced drinking-related charges, and his attorney, Robert Darrohn, appeared 977 for charges relating to reckless driving with a .31 and .29 BAC. A date on June 24 was set for an early resolution. A similar pattern held for Yolo 14, which moved quickly through the schedule and for which I have no cases to report.

Nina Hall Dept. 11: Nina witnessed the arraignment of Ervin Omar Vargas who is being charged with six first degree counts of robbery as well as an enhancement for use of a deadly weapon. Vargas is pleading not guilty to all changes despite multiple officers testifying on the details of the case. Vargas has since been identified as the male who was robbing people at a Woodland drive through ATM at a Federal Credit Union Bank. Vargas is said to have approached vehicles after they had pulled up to the ATM before displaying his gun and demanding money from the victims. Most victims lost between $200-$400 in cash. Vargas will be held to answer to these charges at a later date.

Tuesday June 8, 2021

Sacramento County Superior CourtMichael Wheeler and Joseph Cohn Dept. 32: Michael and Joe heard a cross-examination at Sacramento Dept. 32. Deputy District Attorney Saron Tesfai and Assistant Public Defender Courtney Zane cross-examined police officer Tara Ferneau about a case that took place on August 1, 2020. The case involved charges of second degree robbery and felony vandalism against defendant Joshua Plante. Officer Ferneau described her interactions with the defendant and with a friend of the defendant who allegedly called him to ask for help.

On the night of the incident, Officer Ferneau responded to a 911 call and met the victim, who alleged that he met the friend that day in a parking lot. They then drove to a trailer park, and later to a spot behind a warehouse. After an hour, they began arguing, at which point the friend witness attempted to steal his bag. It was at this point that the friend called Plante for help, alleging the victim was attempting to rape her. Three key questions came up in the cross-examination. The first was the nature of the encounter between the friend and the victim. The second was whether the friends arm showed signs of recent injury on the night of the incident. The third was how far the victim, who fled his car, was from the scene when he perceived the alleged acts of vandalism.

Judge Emily Vasquez found sufficient cause to believe the defendant was guilty, and she ordered the court to hold him for answering. Judge Vasquez also confirmed a court date for June 14 in Dept. 63, on which date they will discuss a conditional release to allow Plante to go to a state mental hospital. They did not set a date for a future preliminary hearing.

S. Priana Aquino Dept. 61: Defendant Donald Olson was charged with second degree burglary. The incident occurred in March of 2020 in Sacramento County. Olson unlawfully entered a Wienerschnitzel store through a side door and took some assets unnamed in his preliminary hearing. After the burglary, fingerprints were found on the side of a box present in the store. The prints were tested and matched those of Olsons. Upon this discovery, he was taken into custody. The defendant was represented by Hubert Chen, who requested that Olson serve 10 months concurrent with the time he is serving as of today. After deliberation between Chen and Judge Geoffrey Goodman, the presiding judge made the decision to grant the defendants request.

Lois Yoo, Dario McCarty, and Jose Medina Depts. 61, 62, 63: The prosecutor in one of the cases from Sac 61 with Judge Geoffrey Goodman involving defendant Alicia Herrick could not reach the victim because she is also homeless. On May 7, 2021, Herrick physically attacked the victim under a bridge and hit her 10 to 20 times. The victim suffered two cuts on her body and from bleeding. Herrick pleaded no contest.

Another case from Sac 61 involved Ahjamu Smith. Smiths defense attorney Tom Clinkenbeard requested to have Smith reevaluated because he had been receiving psychiatric treatment and seemed to be in a sufficient mental state. Judge Goodman approved and Smith will be re-evaluated by the same doctor as before.

In Sac 62, Judge Ken Brody heard the case of Balentin Quintero who was accused of possession of a controlled substance and possession of a loaded firearm while out on bail for another felony case. When Brody asked the defendant if they were okay proceeding with a remote Zoom hearing, the defendant replied that they could not see their attorney on the Zoom call and further inquired whether their lawyer was present on the call. In response to this, Judge Brody appeared impatient and repeated his initial question; at this time, Quintero attempted to apologize, but Quinteros attorney, Michelle Spaulding, who was in fact on the call, also began speaking at the same time. This prompted Judge Brody to shout that there must be only one person speaking on the call at a time.

Spaulding, after this time asking Judge Brody for permission to speak, explained that Quintero was simply asking whether his attorney was on the call; Brody replied that he understood what the defendant was asking, but he could not respond until Quintero responded to his initial question. After a brief hearing, further proceedings for Quinteros case were set for July 13.

In Sac 63 defendant Charles Jones along with the assistance of his attorney asked for the court to grant him a 995 motion, dismissal of information, on the basis that his Fourth Amendment rights were violated. Jones is charged with driving with a suspended license and possession of a firearm by a prohibited person. After the defendant was found to be driving with a suspended license his car was impounded. A detective conducted an inventory search in his car and found a locked case with a gun inside it. The defendant asked for the firearm charge to be dismissed on the basis that the detective did not have a warrant to look inside the locked case.

Joness attorney Vadim Kobrya argued that the 4th amendment requires a warrant, this is not a judgment that officers in the field, especially gang suppression unit officers who are looking for guns who are hunting for gangsters and guns, to make arrests, adding that its not up to them to make that decision, that decision is up to a mutual magistrate or a judge. Vobrya told the court that the briefcase wasnt going anywhere Mr. Jones wasnt going anywhere, the car was there, the briefcase was there, there was no exigency. Vobrya then berated the detective stating, they decided not to follow the law, they circumvented the law and in doing so they violated the fourth amendment.

Judge James P. Arguelles found Vobryas argument to be weak and disagreed with him. Judge Arguelles reminded Vobrya that you dont have to get a warrant to justify the inventory search, its already justified. The judge then hypothetically asked what was a detective supposed to do? Hes now got something that hes pretty sure is a locked gun. The court then denied the motion concluding that the inventory search was enough legal justification for the detective to search the locked case

Yolo County Superior CourtKoda Slingluff and Alexander Pleitez Dept. 7: Koda and Alexander witnessed the conclusion of a criminal trial. The trial lasted the entire afternoon shift. This case was about a defendant, Danny George Raviart Jr., who was charged with a DUI and, allegedly, drove erratically in a vehicle and failed tests designed to assess his mental and physical ability at the time including a portable breath test. There was an examination and cross-examination of expert witness and forensic scientist, Jyoti Malik, who works for the department of justice and is trained in alcohol and body fluid analysis. Two officers had already given their statements and Raviart Jr. did not testify at all.

In the examination of this witness, Jyoti made it clear that the defendant was too impaired by the consumption of alcohol to be using a motor vehicle, without posing a significant threat to the public. Deputy District Attorney Emilie Anne Johnson and Public Defender John Joseph Sage delivered their closing statements to the jury.

Johnson argued that the defendant had to be well above the legal limit of intoxication at the time of driving, given his blood alcohol content (BAC) when police arrived, while Sage argued that the prosecution could not prove Raviart Jr. was intoxicated while driving, since his BAC was measured hours after the fact. This led Sage to say that prosecution could not prove beyond a reasonable doubt that Raviart Jr. was guilty.

Wednesday June 9, 2021

Sacramento County Superior CourtLeah Timmerman Dept. 17: Defendant Francisco Salinas had his preliminary hearing this morning for his felony burglary charge, he stole a pair of Jordan sneakers from the victim valued at 350 dollars. Two witnesses were called to testify, Officer Brueck and Officer McDade, Brueck was present when the victim identified the defendant from a photo lineup, and McDade took the victims statement after the crime occurred. After the testimony of the two officers, Judge Arguelles determined that there was sufficient cause to believe that the defendant was guilty of the charges so the case will go to trial.

A date was set for July 20 for further proceedings as there may be a co-defendant in this case. Defendant Kenneth Kruse had his preliminary hearing today for his charges of illegally possessing a firearm and ammunition by a convicted felon. Kruse had been convicted of a felony in 1990 and 2004. In this case, Kruse was arrested after a traffic stop when he failed to provide the officers a drivers license, and his car and person were searched.

The officers found ammunition and two revolvers in the car. There was an individual in the passenger seat but they were not arrested even though they had a prior conviction for concealing a weapon. After the testimony of the two witnesses, Judge Arguelles determined that there was sufficient cause to believe that the defendant was guilty of the charges so the case will go to trial. A trial readiness conference was set for July 21 in Dept. 61 and the trial was set for July 26 in Dept. 9.

Ankita Joshi Dept. 31: Ankita Joshi observed a probable cause hearing for Defendant Michael Benton, who was present on two felony counts for possession of a handgun. Much of the hearing revolved around the defense and prosecution deliberating over what the legal definition of an assault weapon was and whether it applied to the handgun Benton was in possession of. Public Defender Gina Le contended that based on the testimony of the arresting police officer, the description of the handgun did not align with the specificity of the penal code that outlined the requirements for an assault weapon. On the other hand, Deputy District Attorney Allison Weider contended that there was enough probable cause present for a preliminary hearing to be set.

Judge Gerritt W. Wood chose to take a 30 minute recess to go over the specifics in the penal codes that were presented. When court resumed, Judge Wood moved to remove the holding order for Count 1, and continue with a preliminary hearing for Count 2. A 17b motion requested by the defense to reduce the count 2 felony to a misdemeanor was also denied by the court, as Judge Wood believed Benton could still be considered a danger to the public.

Yolo County Superior CourtKoda Slingluff Dept. 14: Koda saw two riveting cases relating to mental health. In the first, defendant Nico Kade Traversies public defender Monica Brushia argued that Traversies 11 charges should be dropped due to incompetence. Traversies charges related to him painting swastikas on a Sacramento church back in June 2017. Brushia brought in Traversies psychologist, who has been working with Traversie for almost a year and a half, to explain that Traversie would not ever be competent, meaning the charges should be dropped.

The psychologist explained that Traversie initially suffered from acute psychosis, claiming to be a stargate traveler. After some argument from prosecution, Judge Paul Richardson decided to push off dropping the charges and sign an order to mandate Traversie take his medication. A renewal date was set for Sept. 16 to see if Traversie can become competent enough to be tried for his crimes.

Mental health also played a role in the second case of the day. Joseph Michael Granken appeared for a preliminary hearing regarding an attempted murder. From the police officers who testified, it seemed that Granken had planned and attempted to kill a woman by stomping and beating her face and body on the side of the road. Two different civilians interrupted Granken. Granken tried to beat the first civilian and, when the second arrived, he ran away. When the police arrived, Granken was lying on the ground face down waiting for them. In the courtroom, it quickly became apparent that Granken believed he was involved in a conspiracy with the FBI. He repeatedly asked that the Federal bureau of investigation counter terrorism task force contact him. He also suggested that the Yolo county judges were bought out and that Judge Richardson was a communist.

Thursday June 10, 2021

Sacramento County Superior CourtJoseph Cohn and Jose Medina Dept. 17: Jose and Joe heard a preliminary hearing for charges of second degree robbery and possession of an illegal substance leveled against Harley Kinard. The initial charge came from an incident on April 20, in which the defendant allegedly attempted to take his friends bicycle. When the friend refused to give the defendant his bicycle, the defendant pointed what seemed like a handgun at the victim.

The victim called local police after the incident. Police located the bicycle that night, and they located the defendant the next day. When Detective Christopher Robertson arrested and searched the defendant, he also found a clear plastic bag containing 2.5 grams of what he believed was methamphetamine. When other officers searched the defendants tent, they also discovered the weapon described by the victim, which turned out to be a replica BB gun.

During cross examinations of Officer Kenyan Olsen, who responded to the initial incident, and Detective Christopher Robertson, who arrested the defendant and reviewed surveillance of the incident, the prosecution emphasized the victims ready identification of the defendant. During the defenses cross examination, questions focused on the reliability of existing security footage and of Detective Robertsons identification of the substance as methamphetamine without deferring to any tests. Judge James P. Arguelles found reason to believe the defendant was guilty, and he said there was enough information to file this case. A TRC will take place on July 21, and a jury trial July 26.

Christopher Datu Dept. 61: Virginia Rivas, a defendant with two strikes, was present for her bail review today with her counsel, Michelle Trigger, asking for Rivas to be released from custody. Bail had been set at $50,000, though Trigger mentioned the fee was unaffordable for the unemployed Rivas. Trigger further claimed Rivas was a lifelong resident of Sacramento without a significant criminal history that posed no threat to public safety. Prosecutor Kitty Tetrault asked the court to hold Rivas without bail for the circumstances of the case as well as her prior history.

Tetrault went through the damage done to the halfway house owner Rivas was charged with attacking, listing a scratch to the head that was bleeding substantially (and) bites all over, bleeding from the groin where she had pulled extremely hard, and other witness testimony claiming she went crazy and attacked everyone. Tetrault then went into a prior incident where Rivas attacked a JC Penney employee with caustic chemicals. Judge Geoffrey Goodman ultimately held Rivas without bail, deeming the defendant extremely violent and deciding no combination of conditions could both secure public safety and her appearance.

Yolo County Superior CourtNed Meiners Dept. 14: Defendant Vallery Thompson appeared, she has been paying restitution of $100 a month in her case, and the judge, Paul Richardson, acknowledged her commitment. A hearing was scheduled for a year from now and if she continues with her restitution payments her charges may be removed from her record. Robert Gallegos had his theft cases moved to Addiction Intervention Court. Corey Robinson violated his probation by possessing alcohol and was sentenced to 45 days which can be served on Sherriffs Work Project.

The most interesting case was that of Serena Morreno-Carrera. She has several assault and vandalism charges. According to her Yolo PD Tracie Olsen there is a plea offer for her client. However, when she went to the Yolo County Jail on Monday she could not visit her client. Visitation rooms are no longer in operation due to social distancing and the room where you can speak with your client over a phone from behind glass was currently undergoing renovation. She returned to the jail days later and was still unable to access her client as there is still construction taking place there.

Friday June 11, 2021

Sacramento County Superior CourtSophia Barberini Dept. 63: Sophia sat in on a probable cause hearing for Defendant Tristan Cloud, who was deemed unfit to stand trial after he attacked his mother and her boyfriend. DDA Allison Wielder called three witnesses to highlight the defendants mental state at the time of the attack. First, she called Deputy Melanie Edwards who was a responding officer on the case. Edwards took the defendant into custody and he revealed that he attacked his mother and her boyfriend by throwing boiling water on them and then attacking them with kitchen knives.

The defendant argued that he attacked his parents because they were threatening to kill and evict him. Deputy Melissa Propps and Deputy James Avalos recounted their interviews with the mother and her boyfriend after the incident, asserting that the victims were confused and detailing their injuries. Judge Stephen Acquisto asserted that there was probable cause that the defendant was guilty, but he did agree that the defendant was unfit to stand trial.

Yolo County Superior CourtAlexander Ramirez Dept 14: Alexander observed a preliminary hearing about a woman charged with arson after she is said to be seen lighting matches in an area where a fire was in the marina. There were four witnesses brought in by the prosecution to build the story. The first witness was a witness who said they saw smoke by the marina, and when they walked in its direction, saw someone crouch down, stand up, and walk away. Where the person crouched down was a small fire, to which the witness couldnt put out since they were wearing sandals. An officer stopped a suspicious vehicle fleeing from the fire and arrested the defendant, who had 10 potential Molotov cocktails. The EOD team was brought in to identify the cocktails, to which they did.

The judge found there was enough evidence to sustain her four different counts, but since the defendants criminal record was minimal, left one of the counts open to a reduction in the future. This matter was to be continued on July 9.

Ankita Joshi is a second-year student at the University of San Francisco, pursuing a major in International Studies and a minor in Political Science. She is originally from Sacramento, CA.

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The Vanguard Week in Review: Court Watch (June 7 to June 11, 2021) - The Peoples Vanguard of Davis