From the Heartland

This is my soap box, on these pages I publish my opinions on firearms and any other subject I feel like writing about.

Wednesday, December 01, 2004

Nebraska Statute 28-1202 is vague and should be repealed pursuant to the Due Process Clause

The Void-for-Fairness Doctrine bars the prosecution of an individual for violating a statue if the statute is written in terms so vague that persons of common intelligence must guess at the meaning of the law and those persons opinions vary as to how it is applied . Section 28-1202 of Nebraska Statutes fits that criteria and needs to be declared unconstitutional in that it is unnecessarily vague and requires a person of common intelligence to guess at it's meaning at risk of not necessarily life, but most certainly liberty and property.

I have addressed this statute in the past as also being unconstitutional given the fact that the people, in the form of the State Constitution, have never given power to the legislature to regulate weapons. Under the Due Process Clause laws, the punishment of which could result in the loss of life, liberty or property must not be written so ambiguously that There have been numerous court decision that ave held that;

Before criminal liability may be imposed for violation of any penal law, due process requires "fair warning . . . Of what the law intends."

Statute 28-1202 states that; "any person who carries a weapon ....Concealed.... Commits the crime of carrying a concealed weapon. This is plain enough and is specific in that if a person is carrying a concealed weapon that person is committing a crime. I have no argument with that conclusions. (ed... Other than my previous contention that the statute is unconstitutional anyway) My point being that the statement is or should be an understandable by anyone that reads it. Where it gets mucked up is the part that says; except as provided in subsection (2) of this section....

Section (2) reads as follows;

It shall be an affirmative defense that the defendant was engaged in any lawful business, calling, or employment at the time he or she was carrying any weapon or weapons and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon or weapons for the defense of his or her person, property, or family.

To better understand that section I consulted a Webster a dictionary which is accepted and quoted by the SCOTUS).

Affirmative - is an adjective asserting the fact that it is so : POSITIVE. It is also a describe as noun asserting an affirmation or accent.

This word gives the impression of being right or that it is proper. It says YES.

Defense - noun 1: the act of defending : resistance against attack 2: means, method, or capability of defending 3: an argument in support 4: the answer made by the defendant in a legal action 5: a defending party, group, team.

From this word we can believe that the positive thing is defended.

Defendant - noun a person required to make answer in a legal action or suit.

In answering the legal action a person would rightfully believe that their actions are condoned and defendable.

Lawful - an adjective that states permitted by law 2: RIGHTFUL

How much more plain can that be, the person is conducting themselves in a lawful manner and not engaged in criminal activity.

Business - described as a noun is an 1: OCCUPATION also : TASK, MISSION 2: a commercial or industrial enterprise : also TRADE 3: AFFAIR, MATTER 4: personal concern.

By definition business is much more than a job, if a person is pursuing a daily routine they are said to be "going about their business".

Calling - is a noun that defines 1: a strong inner impulse toward a particular course of action 2: the activity in which one customarily engages as an occupation.

So someone gets the urge for a Big Mac and heads out for the nearest McDonald's, that would be a strong impulse toward a course of action.

Employment - noun 1: OCCUPATION, ACTIVITY 2: the act of employing : the condition of being employed.

Obviously this means the job a person engages in either working for someone else or in the capacity of being self-employed.

Circumstance - noun 1: a fact or event that must be considered along with another fact or event 2: surrounding conditions 3: CHANCE, FATE 4: situation with regard to wealth 5: CEREMONY

This is the happenings going on or expected to be going on that an individual does not have direct control over.

Justify - verb 1: to prove to be just, right, or reasonable 2: to pronounce free from guilt or blame.

This specifically tells a person that, beyond a shadow of a doubt, what they are doing is right.

Prudent - adjective 1: shrewd in the management of practical affairs 2: CAUTIOUS, DISCREET 3: PROVIDENT, FRUGAL syn. Judicious, foresighted, sensible, sane.

People provide themselves with spare tires, first aid kits and fire extinguishers, why wouldn't a prudent person possess a firearm?

Person - noun 1: a human being : INDIVIDUAL

Self explanatory I would think.

Reading subsection (2) average people can and do infer that they can lawfully carry a concealed weapon without fear of prosecution. As defined in this section it can be read as they have a POSITIVE ARGUMENT IN SUPPORT of carrying a concealed weapon provided they are RIGHTFULLY engaged in a TASK or INNER IMPULSE TOWARD A PARTICULAR COURSE and given to CHANCE or FATE they are FREE FROM GUILT if they are a CAUTIOUS INDIVIDUAL.

Now that is certainly a mouthful but it illustrates the point, a person of average intelligence can read that and believe that yes they may be made to answer in court for their actions, but it is perfectly legal, without penalty, to carry a concealed weapon. The average person that reads that exception can and do have the belief that if they are a "prudent person" all they have to do is explain such to a police officer and be free to go on their way. Some understand it to mean more than that and realize that they may be charged, but again because they have good reason to go armed the charge will be dismissed by the prosecutor or judge, all they have to do is explain their actions as a prudent person.

The problem with that is that it is not that simple in practice. Throughout the history of 28-1202 it has been selectively applied by different police officers, prosecutors and judges in different parts of the state. The person is in reality subject to the ambiguity of the individual officer, prosecutor and or judge. At any point during contact with anyone of these officials the case may be dropped or prosecuted at the discrestion of the officer, prosecutor or judge. Too many times however, it is a matter of politics rather than the rule of law. Many of these public officials are rabidly anti-gun and in their minds there is no reason that would justify any person, prudent or not, to carry a firearm concealed or not. In these regards 28-1202 does not either standing alone or as construed by the courts, made it reasonably clear at the time of the charged conduct that the conduct was criminal.

28-1202 is not sufficiently defined to provide a person of ordinary intelligence with a clear understanding of it's meaning as guaranteed by Due process. In reading 28-1202 Nebraskans, under peril of liberty and/or property, are required to guess at whether the meaning of the law. They have no way of knowing whether this officer will let them pass or arrest them, or whether this judge or that judge will find them guilty or innocent.

Many that read 28-1202 are confused as to it's meaning. Yes they consider themselves prudent persons and they have a compelling reason, (carrying large sums of money, documented threats etc...) but they are not sure if they can legally carrying a firearm without fear of incarceration themselves. This is specifically the crux that makes this law further unconstitutional. Several U.S. Supreme decision have made it plain that;

The first criterion of the void-for-vagueness doctrine requires a criminal statute to be sufficiently defined so it provides persons of ordinary intelligence adequate notice of proscribed conduct. Due process guarantees this adequate notice of proscribed conduct so that ordinary persons are [p. 450] not required to guess at a law's meaning but, rather, can know what conduct is forbidden and act accordingly. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." Lanzetta, 306 U.S. at 453, 59 S.Ct. at 619, 83 L.Ed. at 890.

It has been long settled that a state cannot prosecute a person based on a statute that can not be clearly understood. For persons that feel compelled to go armed as addressed in 28-1202 they must guess at whether it is legal or not at the risk of a conviction that could result in the loss of liberty (jail time) or property (The firearm confiscated and/or monetary fines).

It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual "criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954);

28-1202 can not be clearly understood by every person of ordinary intelligence;

This principle is founded on two policies that have long been part of our tradition. First, 'a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so fair as possible the line should be clear.' McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, J.). [n. 15] See also United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed.

As written 28-1202 requires the courts determine criminal activity and not the state. Because of the ambiguity of 28-1202 the same court can, on one hand convict a person for carrying a concealed weapon and, at another time dismiss a concealed carry charge against another individual who was found to be carrying for virtually the same reasons. This is a prime example of the court arbitrarily and ambiguously DEFINING criminal activity. Here is what has been said about that;

Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies 'the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should.' H. Friendly Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967).

As a final note, if all of the courts in Nebraska were fair and honest, there should never be a single otherwise law abiding citizen prosecuted under 28-1202. If a person is a responsible member of society then they are prudent and justified in their decision to go armed. Additionally the court has said that, if there is ambiguity, doubts as to an affirmative defense, justification and/or prudence ARE resolved in favor of the defendant.

Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407 411, 61 L.Ed. 857 (1917)

There should be no doubt that 28-1202 is a poorly written law and needs to be declared unconstitutional and or repealed.


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