Six more states no longer require a permit for concealed firearm

Six more states no longer require residents to hold a permit to carry a concealed firearm, reported Stateline, Pew Charitable Trust.

Arkansas, Iowa, Montana, Tennessee, Texas and Utah this year enacted what gun rights advocates often refer to as “constitutional carry” measures. A legislative priority for groups such as the National Rifle Association, 21 states now have such measures in place. Many of these states still have restrictions on possessing firearms in certain government buildings.

More states may be added to that list before the end of this legislative season. The Ohio House last month passed a bill along party lines that would eliminate a requirement for gun owners to take an eight-hour class and undergo a background check to carry a concealed firearm in public. It is now before the state Senate, which also is controlled by Republicans. Wisconsin lawmakers also are debating a permitless carry bill.

Similar bills have passed in one legislative chamber in both Louisiana and South Carolina this year. Meanwhile, the U.S. Supreme Court is considering whether New York’s gun permitting system violates the Second Amendment—a case that could gut firearm permit provisions nationwide.

Permitless carry laws eliminate what proponents say is an onerous and time-consuming step for people who want to arm themselves for self-protection. When Tennessee Gov. Bill Lee signed his state’s permitless carry law earlier this year, the Republican tweeted that “it shouldn’t be hard for law-abiding Tennesseans to exercise their” Second Amendment rights.

Gun safety advocates and law enforcement agencies argue that having more people with concealed firearms in public places endangers communities and police officers.

“This is a dangerous step for states,” said Eugenio Weigend, director of the gun violence prevention program at the Center for American Progress, a liberal think tank. “This could easily raise some confrontations in some places, further escalating violence to reach lethal levels.”

The debate over self-defense figured prominently in the recent trial of Kyle Rittenhouse, who was charged with homicide after he killed two people in the tumultuous aftermath of a police shooting in Kenosha, Wisconsin, in 2020. A jury acquitted Rittenhouse last month, finding that his use of deadly force in the chaotic streets was legally justifiable. Prosecutors called him a dangerous vigilante.

In Georgia, Travis McMichael argued he was acting in self-defense when he shot and killed Ahmaud Arbery, an unarmed Black man who was jogging in McMichael’s neighborhood. McMichael was convicted of murder last month, along with his father and a neighbor. The three men pursued Arbery in a pickup truck.  

Wisconsin’s permitless carry bill, which received a public hearing in the state Senate in October, also would prohibit local governments from banning weapons on public transportation. It’s unclear when the legislation will get a vote, but gun rights advocates are confident it will pass.

Eliminating the permit requirement would be a welcome change for gun owners uneasy about being on a government list, said Nik Clark, president of Wisconsin Carry, a Milwaukee-based gun rights organization. It also would allow people who want a gun for self-protection to acquire one without having to wait through the permitting process, which Clark said is important in cases of domestic abuse or in situations such as the civil unrest of 2020.

“We have a human right to self-defense,” Clark said. “To say that you need permission from the government to do that is crazy. It’s anti-American.”

Gun rights advocates such as Clark have been pushing for a permitless carry law in Wisconsin for more than a decade. It never gained the support of key state legislative leaders or former Republican Gov. Scott Walker, who said in 2017 that licenses for concealed firearms were “appropriate.”

But pressure continued from advocates. Bolstered by national momentum, this year’s bill in Wisconsin has 31 cosponsors, all of whom are Republican. If the bill passes, Democratic Gov. Tony Evers would likely veto it, to the relief of gun safety advocates.

“This puts our citizens at higher risk,” said Jeri Bonavia, executive director of the Wisconsin Anti-Violence Effort Educational Fund, a gun safety group.

Bonavia and researchers at the Center for American Progress found in a September study that since Wisconsin enacted a law in 2011 allowing residents to carry concealed weapons with a permit, gun-related homicides and aggravated assaults have risen. Gun-related homicides and assaults were on the decline in Wisconsin before 2012, but began to shift upward during the implementation of the law, the researchers found.

The gun homicide rate in Wisconsin from 2012 to 2019 was a third higher than it was from 2004 to 2011. The annual average of aggravated assaults with firearms from 2012 to 2019 increased by more than half compared with 2004 to 2011. The increase in gun homicide rates after 2011 did not occur in neighboring states without a concealed carry law.   

Last month, the Republican-led Pennsylvania legislature passed a similar permitless carry bill. However, Democratic Gov. Tom Wolf vetoed the legislation last week.

“Unfortunately, this bill would make gun violence worse and would put law enforcement officers at greater risk of harm,” Wolf said in his veto message.

 

Until 2011, Vermont was the only state that did not require its residents to have a permit to carry concealed weapons. Since then, Republican-led states have steadily dropped permit requirements. In several states, the law applies to residents who are 21 and over, with some exceptions for members of the military who are 18 and over. 

These new laws have coincided with measures allowing guns in houses of worship and on school grounds and public transportation.

While Democrats widely reject the permitless carry policy, polling suggests it also lacks widespread support in the GOP. Most of the pressure on lawmakers to pass these bills has come from gun rights lobbyists at the NRA and other groups, Bonavia said.

“These bills are not a result of public demand,” she said. “There is not a groundswell of support that we need to carry these guns without any regulations.”

Indeed, just over a third of Republicans support allowing people to carry concealed guns without a permit, according to an April survey by the Pew Research Center. (The center is a subsidiary of The Pew Charitable Trusts, which funds Stateline.)

Gun safety advocates have called on state lawmakers to restrict gun access, rather than expand it, citing a spike in gun violence and recent school shootings, including one at a Michigan high school last week that left four dead.

While most Americans generally support stricter laws around firearms, that support has waned since it reached its pinnacle in the aftermath of the school shooting in Parkland, Florida, in February 2018 and the nationwide, student-led protests that followed. According to Gallup polling, support for stricter gun laws declined from 67% in March 2018 to 52% this October.

Gun rights advocates such as Clark argue that the civil unrest that occurred in some places during the mostly peaceful anti-racism protests in summer 2020 demonstrated the importance of allowing Americans to carry concealed firearms without a permit.  

“If people need protection quickly,” he said, “they don’t have time to take a class.”

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In Florida failure to admit crime after conviction can enhance sentence

 A divided Florida Supreme Court on Thursday upheld a judge’s decision to impose a maximum prison sentence in a firearm case after the defendant maintained his innocence and refused to show remorse, reported the Orlando Weekly.

Justices, in a 5-2 decision, said Leon County Circuit Judge Robert Wheeler’s decision to impose a 15-year prison sentence did not violate the constitutional due-process rights of Alvin Davis, who was arrested by Tallahassee police in 2016 after a gun was found in a car in which he was a passenger.

A jury convicted Davis of possession of a firearm by a convicted felon, but during a sentencing hearing he spoke to the judge and maintained his innocence. Wheeler cited Davis’ failure to take “responsibility” for the crime and imposed a 15-year sentence that was the maximum allowed under state law.

The 1st District Court of Appeal backed Wheeler, prompting an appeal by Davis to the Supreme Court. In a 21-page majority opinion Thursday, Chief Justice Charles Canady rejected arguments that Davis’ rights had been violated, pointing in part to the judge’s discretion in sentencing and issues such as Davis’ criminal record.

“The trial judge had numerous valid reasons for imposing the maximum sentence here, but … he did not need to articulate any reason,” Canady wrote. “The judge was statutorily authorized to impose a sentence up to 15 years based solely on the fact of the conviction, regardless of any sentencing considerations and whether or not Davis took responsibility for his actions. ... Whether a defendant says nothing at sentencing or takes full responsibility and is able to show that he is a pillar of the community, a judge retains the discretion to impose the maximum sentence.”

But Justice Ricky Polston, in a dissent joined by Justice Jorge Labarga, wrote that the majority opinion was inconsistent with legal precedent and “has no basis in our statutory sentencing scheme.”

“Showing remorse is admitting you did something wrong —- an admission of guilt,” Polston wrote. “And increasing a defendant’s sentence based on the failure to show remorse is punishing a defendant for failing to admit guilt. Punishing someone unless they confess guilt of a crime is a violation of due process and the right against self-incrimination. Accordingly, I would hold that a trial court violates a defendant’s constitutional right to due process and right against self-incrimination where it penalizes a defendant for the failure to admit guilt.”

Under state guidelines, Davis could have faced a sentence of about 10 years in prison to the maximum of 15 years.

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NYT: 'Unregulated guns escalate violence across ideological lines'

Tali Farhadian Weinstein a former federal and state prosecutor in New York wrote in The New York Times:

As pundits and legal experts consider why Kyle Rittenhouse was acquitted of murder, many have focused on the prosecution’s choices — and possible errors — in the case, or else on the rulings of the presiding judge.

But even more than the prosecution or the verdict, it is really the defense’s strategy that we will have to live with for years to come — a strategy based on a bold and unapologetic acknowledgment of the dangers inherent in carrying a gun. The defense doubled down on the right to bear arms and asserted a right to fire, too. Such a strategy, which has adherents at the poles of the political spectrum, will increase gun violence, not only in red states, but wherever it is allowed to go unchallenged.

A claim of self-defense when you are caught on tape shooting people, as Mr. Rittenhouse was, is predictable. This case was never a whodunit. Instead, Mr. Rittenhouse’s team had to explain why his shooting three people, killing two of them, were not crimes. And what put him in imminent danger serious enough to justify his use of deadly force, according to Mr. Rittenhouse, was the presence of his own gun. Recalling the final moments of his decision to fire at Joseph Rosenbaum, Mr. Rittenhouse testified that Mr. Rosenbaum’s hand was on the barrel of his gun.

As a prosecutor, I have often seen arguments like these during investigations of police officers who have shot and killed unarmed people. In those cases, the officers cite their fear that their own weapons would be used against them. From an armed civilian, this claim is different. Instead of distancing Mr. Rittenhouse from or minimizing the effect of his weapon, Mr. Rittenhouse and his lawyers built their case upon it: Because he had a gun, he found himself in a situation where he needed to use it. In other words, the gun he carried was not a deterrent, but the very reason for the escalation to violence.

Meanwhile, across the country in Georgia, a jury just finished deliberating over a very similar defense strategy. In another shooting caught on tape, Travis McMichael, who shot and killed Ahmaud Arbery, has now been convicted of murder along with his father and neighbor. Mr. McMichael testified that his fear of Mr. Arbery crystallized when Mr. Arbery reached for Mr. McMichael’s gun. That’s when Mr. McMichael started to worry about his child at home, contemplated life and death, and began to shoot. Mr. Arbery was unarmed. “I shot again because I was still fighting,” Mr. McMichael testified. “He was all over me, he was still all over that shotgun, and he was not relenting.” (The jury may have doubted Mr. McMichael’s credibility, since he originally told investigators he was not sure if Mr. Arbery had reached for the gun.)

These assertions of a right to fire exploit standard self-defense laws. In Wisconsin, Georgia, and most states, the law allows you to use deadly force as long as you sincerely believe that you are in imminent danger, and as long as your response is reasonable and proportionate to that danger. Wisconsin, Georgia, and nearly all 50 states even require prosecutors to disprove claims of self-defense beyond a reasonable doubt.

Self-defense laws have ancient roots. They reflect our shared sense that we should be able to protect ourselves and our loved ones. And they are important checks on criminal prosecution. But in states that also have weak gun safety laws — like Wisconsin and Georgia — they have given lethal shooters a path to acquittal, as the attorneys for Mr. Rittenhouse, and now Mr. McMichael, well understood.

What should we do from here? To narrow self-defense laws might seem one obvious answer. But concentrating on the aperture of self-defense, and whether it should be narrower or wider, misses the point.

As I watched the Rittenhouse and McMichael trial broadcasts, I could not help thinking of a case before the Supreme Court right now, New York State Rifle & Pistol Association v. Bruen, in which the petitioners have challenged a 110-year-old law that requires New Yorkers to demonstrate proper cause if they want a permit to carry a concealed gun. It is the first time in over a decade that the court has considered broadening the Second Amendment, and its consequences can be monumental: One in four Americans lives in a place that, like New York, seriously restricts the right to carry a concealed weapon. It tells us why the Rittenhouse and McMichael defenses will continue to matter for public safety across the nation.

As you would expect, this Supreme Court case has generated the usual briefs from gun rights advocates: the N.R.A., gun clubs, libertarian scholars, Republican politicians. What is strange, and disheartening, is that the petitioners have also received support from a group of prestigious and seasoned New York public defenders, who argue that the New York law should be overturned — not really on Second Amendment grounds, but because of the way the law is enforced against their clients, Black and brown, poor defendants who need to carry guns for self-defense. The public defenders argue that, historically, permits have been issued unevenly, and that still today, in many places, it is easier for whites and members of the middle class to get permits than it is for people of color and the poor. And they argue their clients should have guns just like other Americans do. In other words, the progressive left has met far right in describing dangerous streets and the need to be armed on them.

Theirs is not a legal argument but a political one, and is unlikely to sway a Supreme Court focused on the text and original meaning of the Constitution (though the court may find it a useful fig leaf if it decides against New York). It is meant to shock, and it does, in its nihilism — a nihilism that echoes the far-right champions of the men we have seen on trial. Instead of taking guns out of the hands of the Rittenhouses and McMichaels of the world, these progressive public defenders want to level “up”— to make guns more readily available to their clients, to all of us. Their vision, if realized, would make the self-defense claims of Mr. Rittenhouse and Mr. McMichael unremarkable, not only in red states but across the country.

The audacious position taken by these New York public defenders should give pause to anyone tempted to understand, and maybe even discount, the Rittenhouse and McMichael defenses as essentially conservative arguments playing to conservative juries in conservative states. If we start to think of guns only as a problem in the hands of the Other (white supremacists, the far right, criminals), we will miss the simple fact that unregulated guns escalate violence across ideological lines. Their presence tends to create a need for self-defense on both sides of the trigger, about which the law has very little to say. If Mr. Rosenbaum and Mr. Arbery did indeed reach for those guns, weren’t they, no doubt, acting in self-defense? More guns, no matter in whose hands, will create more standoffs, more intimidation, more death sanctioned in the eyes of the law.

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Using the First Amendment to resolve Second Amendment questions

Attorney Paul Clement, in a recent argument before the U.S. Supreme Court, opened the door to resolving a pending gun case by looking at the court’s past First Amendment jurisprudence and applying it to the Second Amendment, reported Slate. Contrary to what Clement argued, though, framing the guns case through a First Amendment lens reveals that the court has drawn clear and workable lines that argue for commonsense regulations. If the Supreme Court were to hold gun owners to the same standards it holds people seeking to take part in protected speech and assembly, New York’s current restrictions on concealed carry would actually survive in some modified form. If that doesn’t happen, then the court’s conservatives would be elevating the status of the Second Amendment above First Amendment protections for the first time ever.

First, it’s important to recognize that the court allows quite a number of restrictions around the First Amendment. In past cases, free speech and assembly advocates have argued that the Constitution guaranteed the right to speak in government buildings, airports, military bases, and privately owned shopping centers. The Supreme Court, however, rejected these arguments, and instead concluded that the Constitution only guarantees speech in “traditional public forums” such as streets, sidewalks, and parks. Under these precedents, such speech is restricted to places that have “been held in trust for the use of the public and … have been used for purposes of assembly, communicating thoughts between citizens, and discussing public issues.” Governments may allow individuals to use other public spaces for free speech, but the Constitution does not require them to do so. To the extent that the Supreme Court must determine where the Second Amendment applies outside of the home, why should the Second Amendment’s protection extend to more places than the First Amendment’s?

Because the public uses public spaces for specific purposes, they may be regulated to ensure that expression does not interfere with their normal use. Rallies interfere with picnics and family gatherings. Parades and picketing block traffic and access to homes and businesses. To the extent that they both involve the freedom to exercise individual rights in public spaces, the public forum doctrine of First Amendment jurisprudence suggests that states may restrict Second Amendment rights when their exercise interferes with the public use and enjoyment of these spaces.

Do firearms in parks and on streets interfere with the normal use and enjoyment of these spaces? Firearms clearly present a risk to public safety. Individuals may be injured and even killed when firearms are misused, improperly handled, or even when they are used properly. Even when a gunshot strikes the intended target, others may still be injured because the bullet may pass through the target and injure someone else or because the presence of the gun and gunfire cause a panic. While speech may annoy, offend, or even harass those around the speaker, firearms injure and even kill those nearby. Members of the public may genuinely feel unsafe in parks or on the roads when firearms are allowed in those locations, more so than when they are confronted by a noisy protester.

Critically, in NYSRPA, the plaintiffs are not demanding the right to merely carry the firearm; they are demanding the right to use the firearm for self-defense. Thus, the fundamental question is not whether the presence of firearms threatens public safety but whether their use threatens public safety. The answer should be obvious, and the lessons of First Amendment jurisprudence should apply.

When it has come to the First Amendment, as long as restrictions on individual liberty are reasonably related to preserving the public’s enjoyment of a given forum, judges may not declare those laws unconstitutional because they disagree with the law, would have weighed the costs and benefits differently, or prefer a different approach. The Supreme Court has deferred to lawmakers when speakers were denied the opportunity to post messages on utility poles for safety and aesthetics, to use sound trucks that would disturb people on the streets and indoors, or to picket in residential neighborhoods because the picketing could interfere with traffic and deny individuals a feeling of well-being, tranquility, and privacy in their homes. If elected representatives decide that the risks of innocent bystanders being injured or killed, the weapon being turned against the owner, or law enforcement being unable to distinguish between the good guy with the gun and the bad guy are unacceptable, the First Amendment teaches that courts have no authority to second-guess those judgments because they disagree with them. This should also be true if lawmakers restrict guns to protect the freedom to speak and assemble in the public forum.

However, this does not mean that lawmakers are free to do as they please in restricting firearms in public. If the Second Amendment is going to be treated like the First Amendment, government restrictions on the carrying of firearms must be tailored to prevent discrimination and arbitrary decision-making. While local governments may require speakers to obtain permits to hold events in public forums, those permitting decisions must be based upon “narrow, objective, and definite standards” and “related to the proper regulation of public places.” In other words, permits may not be denied for reasons unrelated to the enjoyment of the public forum. The clearest rule under these circumstances is that the government’s decisions cannot be based upon the content of the speaker’s message.

While there is no direct corollary to these content-based regulations that can be applied to restrictions of gun rights, if the First Amendment prohibits political authorities from regulating speech because they disagree with the message, the Second Amendment could be interpreted as prohibiting the regulation of firearms because lawmakers disapprove of firearms or those that seek to carry them. While lawmakers under such an analysis may consider how and when to regulate firearms due to the risk they pose, First Amendment law suggests that those regulations may not be based upon the merit of carrying firearms for self-defense.

Even when restrictions upon firearms are not discriminatory, but are for the legitimate purpose of protecting public safety, such laws must still be narrow, objective, and based upon clear standards. When it comes to speech, this requirement ensures that the permitting authority cannot use the permit as a means of censoring constitutionally protected speech. According to the court, “the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is unconstitutional.” The same should be true for firearms, and, arguably, this is where New York’s law fails. The requirement that applicants must show “proper cause” may be insufficiently clear and objective, allowing officials to exercise an unconstitutional amount of discretion.

If the court adopts this approach, it will follow a clearly marked path that will force New York to reconsider its standards for restricting guns in public, but allow it to still maintain some such standards. If the public forum doctrine is good enough for those seeking to exercise their First Amendment rights, it should be good enough for those who wish to exercise their Second Amendment rights as well.

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As promised Gov. Wolf vetoes permitless concealed carry in Pennsylvania

Gov. Tom Wolf has vetoed a bill that would have allowed anyone over the age of 18 who can legally own a firearm to carry a concealed weapon without a permit, reported the Pennsylvania Capital-Star. 

It also would have repealed a state law that banned the open carrying of firearms in Philadelphia.

In his veto message, the Democratic governor said the bill would “only exacerbate gun violence and jeopardize the safety of all Pennsylvanians.”  

The bill, a top priority for gun rights groups, zoomed through the Republican-controlled General Assembly last  month. It passed the Senate 29-21 in early November, and the House 107-92 two weeks ago.

Under current state law, Pennsylvania gun owners 21 and older can only carry a concealed weapon if they successfully obtain a permit from their county sheriff. 

But 21 states, from Arkansas to Vermont, already allow for concealed carry without a permit. Gun rights advocates argue it reduces redundancies for lawful gun owners, many of whom may have already undergone a background check, and that it affirms the rights guaranteed by the Second Amendment and the Pennsylvania state constitution.

*Kim Stolfer, president of the Pennsylvania-based gun rights group Firearm Owners Against Crime, pointed to research by economist John Lott to argue that expanded concealed carry would make people safer.

“Their specious comments about dangerous gun laws is nothing more than demagoguery on a huge level,” Stolfer told the Capital-Star.

But Lott’s research, which argues more guns reduces violent crime, has been criticized by other academics. One 2017 study from Stanford University  reached the exact opposite conclusion, finding that 10 years after states loosened their concealed carry laws, violent crimes, with the exception of murder, rose by 13 percent to 15 percent.

In an email, Adam Garber, executive director of the gun violence prevention group CeaseFire PA, said that “the General Assembly tried to make this and future holiday shopping seasons more dangerous by allowing anyone to carry a concealed firearm, no permit needed. While Governor Wolf’s veto thankfully will keep it from becoming law, none of us should think that’s good enough.”

The bill  also was opposed by two statewide law enforcement groups — the Pennsylvania District Attorneys Association and the Pennsylvania Chiefs of Police Association.

In vetoing the bill, Wolf said he stands “with them, domestic abuse survivors and advocates, responsible gun owners, and victims of gun violence,” and echoed a call from Garber for the General Assembly to instead pass new laws restricting access to firearms, such as extreme risk protection orders or requiring reporting of lost and stolen guns.

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TCR: The Mythical ‘Bystander Effect’ Haunts a Philadelphia Rape Case

Matthew T. Mangino
The Crime Report
December 1, 2021

Upper Darby borders West Philadelphia. If you have ever driven through Upper Darby, you know it is difficult to tell where West Philly ends and Upper Darby begins. In fact, Upper Darby is home to the 69th Street Station, a hub for the Southeastern Pennsylvania Transportation Authority (SEPTA)—a regional public transport operation that provides regular service for four million people in southeast Pennsylvania.

Just over a month ago, as the “EL” commuter train was heading toward the 69th Street Station, a shocking crime occurred in the public area of a train car: a woman was raped.  A few days after the crime, Upper Darby Police Superintendent Timothy Bernhardt charged that other train passengers who witnessed the assault didn’t intervene.

In a comment that quickly made national headlines, he said, “I’m appalled by those who did nothing to help this woman.”

Early news reports appeared to corroborate the charge, suggesting that there were dozens of people who witnessed the eight-minute assault.  While there were not “dozens of people” in the car at the time, as Bernhardt acknowledged, he nevertheless argued there were enough that, “collectively, they could have gotten together and done something.”

He added that investigators had received unconfirmed reports of some passengers recording the attack on their cellphones.

Within a few days of the attack in Upper Darby, Delaware County District Attorney Jack Stollsteimer revealed, after a review of security camera footage from the train car, that the version of the story that had been circulating for days “is simply not true—it did not happen.”

Flashback to a 60-Year-Old Crime

The hideous nature of the crime and the suggestion that bystanders just sat and watched brought to mind the infamous 1964 murder of Kitty Genovese.

In the early hours of March 13, 1964, Kitty Genovese, a 28-year-old bartender, was stabbed outside her apartment building in the Kew Gardens neighborhood of Queens, New York.

Genovese was returning home from work at around 2:30 a.m. when she was approached by a man with a knife. Genovese ran toward her apartment building, and the man grabbed her and stabbed her while she screamed.

A neighbor yelled out the window and the attacker temporarily fled. Genovese, seriously injured, crawled to the rear of her apartment building, out of the view of any possible witnesses. Ten minutes later, her attacker returned, stabbed her again, raped her, and stole her money.

A couple of weeks later, The New York Times ran an article with the headline “37 Who Saw Murder Didn’t Call The Police,” alleging that 37 witnesses saw or heard the attack, and that none of them called the police or came to her aid.

Like the Philadelphia case, that turned out to be untrue.

In 2004, after Kitty Genovese had faded from the memory of most people, the inaccurate and sensationalistic nature of the reporting of her murder was acknowledged by the Times.

But what had taken America more than 40 years to learn about the rape and murder of Genovese, we learned in only a few days after the SEPTA subway rape

They were both, at best, an exaggeration—and, at worst, a flat-out lie.

How could the reports of two crimes separated by about 115 miles and nearly 60 years get it so wrong?

The Bystander Effect

The New York Times coverage had been criticized for years for numerous factual errors and for contriving a social phenomenon to sell papers. The phenomenon, called the Bystander Effect, attempts to explain why someone witnessing a crime would not help the victim.

The coverage of the incident by the Times remains a stain on the media—fodder for those who claim mainstream news is “fake news.”  On the other hand, the source of the SEPTA rape “lie” wasn’t some cub reporter trying to get a byline or a headline; it was a person entrusted with the safety and security of the community.

The superintendent of police exaggerated the circumstances of a crime—attempting to paint a picture of moral bankruptcy in the very community he swore to protect.

Although DA Stollsteimer methodically punctured every part of the passive-bystander argument put forward by the superintendent—including, he said, the claim that some witnesses took videos of the incident “for their own gratification”— the damage is already done.

Increasingly, people do not know who to believe or who to trust. 

We hear from what is supposed to be a trusted law enforcement figure that you can’t rely on your neighbors in a neighborhood riddled with crime, only to learn that the “trusted” figure lied, possibly to promote some misguided law enforcement agenda.

Mistruths continue to be components of a society in a perpetual state of suspicion and mistrust.

Editor’s Note: On Nov. 30, the Associated Press reported that a man accused of raping a woman on a Philadelphia commuter train was ordered held for trial. The suspect, Fiston Ngoy, claimed the sexual encounter was consensual.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA.   He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com)

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Another criminal trial underway for shooting death by police officer

 A white suburban Minneapolis police officer charged with manslaughter in the death of Daunte Wright, a Black man, said she meant to use her Taser to try to stop him from fleeing during an attempted arrest but accidentally grabbed her gun instead, reported MPRNews. 

Jury selection for Kimberly Potter's trial began November 30, 2021. When prosecutors begin presenting their case next week, they'll argue that Potter, who quit the Brooklyn Center police force two days after the shooting, committed first- and second-degree manslaughter when she killed the 20-year-old Black man during an April 11 traffic stop. Here's a look at the charges and potential penalties:

The charges

Under Minnesota law, first-degree manslaughter in this case means prosecutors allege that Potter caused Wright's death while committing the misdemeanor of the “reckless handling or use of a firearm so as to endanger the safety of another with such force and violence that death or great bodily harm to any person was reasonably foreseeable.”

The second-degree manslaughter charge alleges that she caused his death “by her culpable negligence, whereby Kimberly Potter caused an unreasonable risk and consciously took a chance of causing death or great bodily harm to Daunte Demetrius Wright, while using or possessing a firearm.”

Neither charge requires prosecutors to prove Potter intended to kill Wright.

The attorney general’s office added the first-degree manslaughter charge after it took over the case, though it fell short of the murder charge that Wright's family and activists wanted.

The facts

According to the complaint, the officer Potter was training, Anthony Luckey, told Wright they stopped him for the air freshener hanging from his car's rearview mirror and because it had expired license plate tabs. But Luckey ran a check and found that Wright had an outstanding arrest warrant for a weapons violation, so the officers returned to Wright's car to arrest him.

Wright obeyed Luckey’s order to get out, but as Luckey was handcuffing him, Wright pulled away and got back in. As Luckey held onto Wright, Potter said “I’ll tase ya.” Potter's body camera video then shows her holding her handgun in her right hand and pointing it at Wright. Potter repeated “I’ll tase you,” and then two seconds later said “Taser, Taser, Taser.” One second later, she fired a single bullet into Wright’s chest.

“(Expletive) ! I grabbed the wrong (expletive) gun,” Potter is heard saying. “I’m going to go to prison.”

Potential penalties

The maximum for first-degree manslaughter is 15 years; for second-degree, it's 10 years. But Minnesota judges follow sentencing guidelines that normally call for less — just over seven years for first-degree, and four years for second-degree.

But prosecutors have said they’ll seek a longer sentence due to aggravating factors, which is what they did in former Minneapolis Officer Derek Chauvin's murder trial for killing George Floyd.

The longest sentences that could conceivably stick on appeal are double the top of the guidelines range. But that's more than the statutory maximum of 15 years for first-degree manslaughter, so 15 years would be the cap for Potter if she's convicted. The realistic maximum on the lesser charge would be 9 1/2 years.

Presuming good behavior, Minnesota offenders typically serve two-thirds of their time in prison and one-third on supervised release.

Recent precedents

The judge in Chauvin's case sentenced him to 22 1/2 years for second-degree unintentional murder. The presumptive sentence was 12 1/2 years. But Judge Peter Cahill found several aggravating factors, including that Chauvin abused his position of authority and treated Floyd with particular cruelty, and that several children witnessed the crime live. He also said Chauvin knew that kneeling on Floyd's neck was dangerous.

More recently, Judge Kathryn Quaintance resentenced former Minneapolis Officer Mohamed Noor to four years and nine months in prison for second-degree manslaughter in the shooting death of Justine Damond Ruszczyk, which was at the top of the guidelines' range. She said she did so because Noor shot “across the nose” of his partner and endangered others. She couldn't sentence him to more because prosecutors didn't request an “upward departure” from the sentencing guidelines.

Quaintance originally sentenced Noor to 12 1/2 years for third-degree murder, which was what the guidelines called for, but the Minnesota Supreme Court later clarified the definition of third-degree murder and sent the case back for resentencing only on the manslaughter charge.

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