Was police killing of 95-year-old necessary? Common sense tells me that cops don’t need a Taser or a shotgun to subdue a 95-year-old man.

Was police killing of 95-year-old necessary? Common sense tells me that cops don’t need a Taser or a shotgun to subdue a 95-year-old man.

So, does a 95 year old man in a chair present such a credible threat that law enforcement is authorized to use bean bag rounds and Tasers while safely behind a riot shield?

These sorts of stories are the most disturbing, and are indicative of how the modern police force has lost its way, having forgotten that their mission is to serve and protect the community.  Actions like these are the reason an ever growing number of Americans not only mistrust the police, but are actually intimidated or afraid of them.  

Veterans, ‘mental defects,’ and gun ownership.

There has been a bit of an uproar regarding an amendment to the 2013 NDAA which would have changed the process for veterans’ rights to gun ownership being barred by a finding that they are unable to manage their own affairs rather than because they are found to be dangerous or violent.

First, let me begin with explaining the way things work now:

Federal law requires that persons found to have a ‘mental defect’ must be reported to the Attorney General so as to be placed on the NICS list.  The NICS list, for those who aren’t aware, is the National Instant Criminal Background Check System.  The finding of having a ‘mental defect’ is, in and of itself, sufficient to prevent someone from purchasing, owning or merely possessing a firearm.  This is the same classification as those who are convicted felons and those who have committed certain acts of misdemeanor domestic violence.

How is someone determined to be ‘mentally defective?’  It is important to understand that there is no requirement that a person be found to be a danger to himself or to others.  Someone, like a veteran, who needs help ‘managing his own affairs,’ is considered under the current law as being ‘mentally defective.’  There is no requirement that a judge make such a finding, it turns out that it can be done administratively, outside of the courts.

Federal law defines the terms of mental defect as follows:

18 U.S.C. Chapter 44.

Adjudicated as a mental defective.

(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:

(1) Is a danger to himself or to others; or

(2) Lacks the mental capacity to contract or manage his own affairs.

(b) The term shall include—

(1) A finding of insanity by a court in a criminal case; and

(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

Mental institution. Includes mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by licensed professionals of mental retardation or mental illness, including a psychiatric ward in a general hospital.

The 1968 Gun Control Act first criminalized the ownership or possession of firearms by those who have ‘been adjudicated as a mental defective or has been committed to any mental institution.’  Thus, from that point forward, any person who falls under those terms has been unable to legally possess or own a firearm, regardless of whether or not someone might not be considered dangerous or violent.

In 2007 Congress passed a bill that was signed into law by President George W. Bush on January 8, 2008.  This law was entitled ‘The NICS Improvement Act of 2007.’ ( http://www.govtrack.us/congress/bills/110/hr2640/text  )  This law requires government agencies, such as the Department of Veterans Affairs, to report those individuals who have had a finding of mental defect to the Attorney General’s office for inclusion into the NICS.  In many cases, these findings are premised upon the basis of a veteran being unable to care for himself or herself, rather than any finding of an actual mental disorder or likelihood or propensity toward violence.

The 2007 NICS law also provides an opportunity for a veteran, or other individual, to request a ‘relief from disability.’  By this process a person can be found to be no longer under a disability and his or her name would be removed from the NICS along with the inability to purchase and/or own firearms.  Here is document with more information on pursuing such relief:  https://docs.google.com/document/d/11ETxpq4dJiiJYcSD8KYXtVTIOhKSqg5hAilxjNQ43OY/edit

However, the 2007 NICS law also states that a request for relief that is not acted upon by an agency within 365 days is deemed to be denied, rather than granted.  We can thank the Brady folks for this lovely gem, namely that if the government doesn’t get off of its bureaucratic butt and do its job the person asking for the relief gets shafted.  This isn’t the end of the story, though.  A person denied relief can go to the court system to ask for such relief.  Of course, this is expensive and time consuming, but it is possible.

Just to be clear:  The mental defect provisions have been on the books since 1968, the requirement that states and government agencies provide information about those deemed to have mental defects was passed in 2007.  Interestingly, it was passed by both the Republican-controlled House and Democrat-controlled Senate by voice vote, rather than by roll call so there are no lists of who voted in support of the measure.  However, the Congressional Record does list remarks made by various Congressmen, and Representative Ron Paul of Texas was the only person to stand up and oppose the changes to the law.  Here is his statement prior to the voice vote in the House:

Mr. Speaker, I rise in opposition to H.R. 2640, the National Instant Criminal Background Check System Improvements Amendments Act, and I urge caution.  In my opinion, H.R. 2640 is a flagrantly unconstitutional expansion of restriction on the exercise of the right to bear arms protected under the second amendment.  H.R.2640 also seriously undermines the privacy rights of all Americans, gun owners and non-gun owners alike, by creating and expanding massive Federal Government databases, including medical and other private records of every American.  H.R. 2640 illustrates how placing restrictions on the exercise of one right, in this case, the right to bear arms, inevitably leads to expanded restriction on other rights as well. In an effort to make the Brady background check on gun purchases more efficient, H.R. 2640 pressures States and mandates Federal agencies to dump massive amounts of information about the private lives of all Americans into a central Federal Government database.

Among the information that must be submitted to the database are medical, psychological, and drug treatment records that have traditionally been considered protected from disclosure under the physician/patient relationship, as well as records related to misdemeanor domestic violence. While supporters of H.R. 2640 say that there are restrictions on the use of this personal information, such restrictions did not stop the well-publicized IRS and FBI files privacy abuses by both Democratic and Republican administrations. Neither have such restrictions prevented children from being barred from flights because their names appeared on the massive terrorist watch list. We should not trick ourselves into believing that we can pick and choose which part of the Bill of Rights we support.

I urge my colleagues to join me in opposing this bill.

Again, THIS IS HOW THE SYSTEM ALREADY WORKS!  In other words, this has been happening since 2008 and there has been precious little controversy generated as a result.  Americans, including veterans, have been getting screwed out of their gun rights for YEARS.

Here are two examples of how this law has been used in 2012 alone:

Feburary 2012 http://www.infowars.com/prepper-declared-mentally-defective-put-on-fbi-list/

August 2012 http://www.infowars.com/veteran-declared-mentally-defective-has-guns-seized/

Now, to bring us up to the present and the Congressional fracas over amending the provisions of the 2007 NICS law.

Senator Tom Coburn, M.D., from Oklahoma, submitted an amendment to the 2013 NDAA bill which would require a judge of competent jurisdiction to find that a person is ‘a danger to himself or herself or others’ before the mentally defective provisions barring gun ownership could be applied.  Here is the text of the proposed amendment:  http://www.coburn.senate.gov/public//index.cfm?a=Files.Serve&File_id=7dd7211c-c2c7-483d-aaf2-1e065bfb06d8  And here is the statement Senator Coburn sent along with the proposed amendment:  http://www.coburn.senate.gov/public//index.cfm?a=Files.Serve&File_id=4c02264f-d1db-4452-bb53-d7c0c7bbb86f

Unfortunately, Coburn’s amendment was not added to the bill, which has now passed both chambers of Congress.  Therefore, the same laws apply and no judicial finding is required before a person can be stripped of their right to own firearms.

As an American, I strongly support our Second Amendment right to keep and bear arms.  As a veteran, I find it disturbing that so many of my fellow veterans have been barred their Second Amendment right due to an overly-broad wording of what constitutes a ‘mental defect.’  As an attorney, it is deeply troubling that due process is not being met by having a finding by a judge as a requirement of the law, and that a board or case manager seems to have the authority to determine whether or not someone is ‘mentally defective.’  This is something that needs to be fixed, and fast.  It may be too late to have it tacked onto the 2013 NDAA, but contacting your elected representatives and demanding that a judicial finding be required prior to a loss of a vital Constitutional right may get the ball rolling for the next session of Congress.

Go find your Congress-critters here and let them know what YOU think about the laws in question:  http://www.house.gov  http://www.senate.gov

The Drones, they are a’ coming!

“Within DHS, Customs and Border Protection’s (CBP’s) Office of Air and Marine (OAM) has flown missions to support federal and state agencies such as the Federal Bureau of Investigation (FBI), the Department of Defense (DOD), Immigration and Customs Enforcement (ICE), the U.S. Secret Service, and the Texas Rangers.”

So…you thought that drones were only being used overseas? You thought Predators owned by DHS are only being used to ‘man the borders?’

TIME TO WAKE UP! The feds are using drones domestically, and for more than border patrols. DHS is asking for funding to more than DOUBLE their current fleet of ten Predator drones.

Read this report about domestic drone activity and privacy concerns, which was published in September by the Congressional Research Service.

http://www.fas.org/sgp/crs/natsec/R42701.pdf

Liberty vs. Safety: Which Is Winning?

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. – Benjamin Franklin

We live in a world of competing interests, including the competition between our inherent rights as citizens and the desire to be safe and secure from outside threats.  Over the two-plus centuries since Franklin quipped that oft-cited quote, we have seen Liberty losing the competition with Safety.  The interplay between the two has existed since time immemorial, but the United States was founded upon the concept that our Liberty was paramount.  Due to numerous factors, primary among them apathy and ignorance, the Essential Liberties Franklin and our other Founding Fathers fought for have been diminished in the name of Safety and Security.

It is nothing short of astonishing to me that so many of our fellow citizens are entirely ignorant of what has happened in recent years, the rapidity with which our Liberties have been assaulted in the interest of Safety.  More surprising, and appalling, is that many Americans who have heard about these issues have been passive or unconcerned.  In short, a large number of our fellows have decided that the need for Safety outweighs the right to Liberty.

In an effort to combat this ignorance, and in a desperate attempt to ‘wake people up,’ I am going to reiterate what some of my major concerns are.  This list is not exhaustive, but is intended to be a stepping-stone of sorts, so people may follow up on their own.

1)      The USA Patriot Act (Passed in October 2001):  This legislation allowed significant expansion of the government’s ability to conduct domestic surveillance and intelligence gathering operations.  The powers granted are extensive and too long to be listed here, but Wikipedia has a pretty decent write up on it, including what the various provisions do:  http://en.wikipedia.org/wiki/Patriot_Act  Many of these provisions were slated to sunset in 2005, however, the Act has been renewed and these controversial provisions are still in effect today. 

2)      Indefinite detention provisions of the 2012 NDAA:  Sections 1021 and 1022 of the 2012 National Defense Authorization Act allow for the indefinite detention (that is to say, incarceration without trial) by the military, of not only foreign nationals, but also American citizens.  The language in question has been ruled unconstitutionally vague by one Federal District Court, a decision which the current administration has appealed.  This appeal is pending before the Second Circuit Court of Appeals.  If you would like to know more, simply execute a search for ‘Hedges v. Obama.’ 

3)      The erosion, generally, of the First Amendment rights guaranteeing freedom of speech and peaceable assembly.   First, the Federal Restricted Buildings and Grounds Improvement Act of 2011, which was signed by President Obama in March 2012.  Facially, this Act seems rather innocuous, however it is noteworthy for a few reasons: 1) It expanded the areas covered, which restrict access and ability to protest; 2) It altered the intent requirement from ‘willfully and knowingly’ to simply ‘knowingly;’ 3) It opens the door for a broader use of the law to prevent peaceable assembly.  This law in and of itself may not be a harbinger of doom, but it is the first step, legislatively speaking, that has restricted freedom of speech.  Coupled with this new law are the court decisions that have significantly curtailed free speech at political events.  Several courts around the United States have ruled that restrictions upon freedom of speech are constitutional, even if they restrict protestors to areas where they may not be seen or heard by those attending the political events.  The most recent came from the Second Circuit Court of Appeals, and was the farthest-reaching to date.  In short, the government’s ability to limit First Amendment freedoms has increased to the point that it is gutting the entire point of such speech. 

4)      Fourth Amendment search and seizure protections:  The Supreme Court of the United States, and other courts, have ruled that the government is to be held to an ever-less-restrictive standard when it comes to its ability to violate your right to privacy in your person, your home, your office, your vehicle and your belongings.  For example, your laptop or other electronic devices can now be searched with much less of a showing of necessity by the government.  Similarly, the ‘good faith exception’ has been broadened further.  Now, if police are chasing a suspect, and they mistakenly break down *your* door, anything they find is now admissible against you, even if you had no connection to the suspect whatsoever. 

We must also look at certain cities that have a policy of the ‘stop and frisk.’  Recently, Philadelphia was censured by a court for such policies, but other major cities, such as New York City, continue to use the program.  Stop and frisk is the policy of stopping, questioning and searching someone for any sort of ‘suspicious’ activity.  In NYC alone, since the program’s inception, millions of people have been subjected to stop and frisks by the NYPD, with more than 80% of them being innocent of any wrongdoing.  Further, the vast majority of those stopped have been minorities.  Mayor Bloomberg has argued in favor of the policy, as part of his overall irrational vendetta against personal gun ownership.  Recently, some activists who took to filming the police during stop and frisks were targeted by the NYPD, who even went so far as to place ‘wanted’ posters of the activists in police precincts.

5)      No knock warrants:  How many articles do you remember reading about some poor person being shot and/or killed in their own homes?  It seems to be happening with an alarming frequency.  One of the common threads many of these incidents share is the use of the ‘no knock’ warrant.  In recent memory, the use of such warrants has increased dramatically, and, for obvious reasons, when they are executed they create a much more dangerous situation, not only for the police officers, but, more importantly, for the citizens whose homes are being violated.  Examples abound:  Jose Guerena, a former Marine, who was gunned down in his own home.  Matthew Stewart, another veteran, who ended up shooting it out with law enforcement who he claims did not announce the fact that they were officers.  A sixty year old Paulding County, Georgia man was gunned down in his home, allegedly he was holding a can of pepper spray.  The list grows longer with every week.  In 2012 alone there have been dozens of such incidents, with no end in sight.

 6)      The militarization of local law enforcement:  I have written about this issue before, but it is worth repeating.  The Department of Defense has been arming local law enforcement agencies with military hardware, including armored vehicles and weapons, for years now.  The pace has picked up considerably, and now, in most major cities and many more smaller municipalities, the police look more like soldiers than constables.  This goes hand in hand with the overuse of no knock warrants, as well as generally raising the question of why local law enforcement officers need such heavy equipment.

 7)      Extrajudicial assassinations:  On September 30, 2011, two US citizens, Samir Khan, a journalist, and Anwar al-Awlaki, a Muslim cleric, were killed by drone strike in Yemen.  Both men admittedly had ties to al-Qaeda, but neither had been charged with any crime in the United States.  These men never had a day in court and were never convicted, thus they were deprived of several of their Constitutional rights, which include the right to due process of law.  On October 14, 2011, al-Awlaki’s sixteen (16) year old son was killed in a drone strike, also in Yemen.  The reason these killings are noteworthy is that they resulted from an end run around the judicial system.  None of these three were accorded any of their rights, and each was killed by executive decree.  Not only the end result of assassination, but the entire process that led to it, are unconscionable in a nation that relies upon the rule of law.  The process for selecting such targets is entirely opaque and reminiscent of the old British Star Chamber.  Despite numerous efforts for the administration to come clean about the process it has refused to do so.  So now the precedent is that an American citizen can be killed by executive fiat without ever being charged with a crime.

 8)      Targeting veterans:  Both the FBI (in 2008) and DHS (in 2009) have noted that veterans are potential extremists/domestic terrorists.  Pointing to examples such as Timothy McVeigh, their reports play upon the fears that this group of citizens are highly trained and dedicated, and, thus, can become ‘disgruntled’ and carry out acts of violence.  Recently we have seen cases such as that of Brandon Raub, a former Marine, who was targeted for some remarks he made on Facebook.  Though he was never charged with a crime, he was detained and forced to undergo a psychological evaluation prior to his eventual release.  Raub’s case is far from the only one, and, in a few cases, the targets of government action were either active duty or National Guard personnel. 

9)      The extended ‘border area’:  Tying in with paragraph 4, above, is the issue of searches within a ‘border area.’  US regulations indicate that the government may exercise border searches within one hundred miles of an actual US border.  This does not include international airports, etc, which have always allowed for customs inspections, etc.  This is a matter of driving down the road within one hundred miles of a border.  Border searches are allowed to have a lower threshold for probable cause than regular stops, given their different nature.  Now, however, such stops can occur, with those lesser thresholds, even if you NEVER CROSSED THE BORDER.  There are entire states, such as Florida, Maine, Hawaii, New Hampshire, Rhode Island and Connecticut, which are entirely within this extended border area.

This is just a short list, I could certainly add more, but these are my top-tier concerns.  If you haven’t been paying attention to what is going on, then now is the time to start.  Make sure you share this information with your fellow citizens, as knowledge of these issues is our best defense. 

The Case of William Everett ‘Billy’ Alemar

Image

First, a bit of background on Billy’s story:

Billy is a Specialist (E-4) and a member of the Virginia Army National Guard: Bravo CO, 3rd BN, 116th Infantry Brigade Combat Team. Billy has served in combat overseas. On Monday August 20, 2012 Billy was doing PT (exercising for the non-military types) in full gear, which means he was wearing his ballistic vest, with ceramic plates, magazines (which were empty), and the rest of the ‘battle rattle.’ He was also carrying an Airsoft pellet gun with a highly visible orange/red tip.

Billy's gear

At approximately 0700HRS Billy was stopped by three Martinsburg, West Virginia police officers. He was then arrested and taken into custody. Billy has been charged with committing a terrorist act, a felony, and with wearing body armor during the commission of a felony.Apparently local law enforcement were joined at Billy’s home by members of the Federal Bureau of Investigation, the Department of Homeland Security, and, possibly, members of the Federal Emergency Management Agency. After a bomb squad cleared his residence the agents and law enforcement officers searched and located ‘military equipment,’ which is unsurprising, given that Billy is a soldier.

At some point after that, members of DHS questioned Billy in jail. He has also undergone a psychological evaluation.  I believe we can expect the State to make hay of any psychological issues that Billy may be diagnosed with, in an attempt to deflect focus from the actual facts of the case.  The Prosecuting Attorneys may very well use any psychological results to recast the entire affair as, ‘this is a soldier in need of help,’ as a face-saving measure, given that the underlying charges will most surely wither under judicial review.  It is another tactic becoming more common with prosecutions of veterans and military personnel:  They are damaged, they are dangerous, they must be treated, even if they didn’t do anything wrong.

Billy’s next court appearance is on Wednesday August 29, 2012.  A rally is planned for 10:00 am at the Martinsburg, WV courthouse.  The link to the Facebook event page for the rally is below.

We believe that Billy’s charges are baseless and cannot stand legal scrutiny. Despite this, the Berkeley County Prosecuting Attorney has made a statement that she believes the charges are appropriate. In an attempt to shift the focus of the public’s attention, she has alleged that Billy was intoxicated (drunk) when he was taken into custody. Even if Billy was under the influence of alcohol, he is innocent of any felony criminal act. At worst, perhaps an ordinance violation for being under the influence in public.

Here is the link to Billy’s Facebook support page:

https://www.facebook.com/groups/350090671735329/

Here is the link to the Facebook rally page:

https://www.facebook.com/events/415596698488057/

Here is the link to the petition that has been started, asking for Billy’s immediate release:http://www.change.org/petitions/to-those-officials-connected-to-the-case-of-william-alemar-release-of-william-alemar?utm_campaign=autopublish&utm_medium=facebook&utm_source=share_petition&utm_term=3010088

Now I will discuss the charges against Billy and my personal opinions and breakdown of those charges, and how the available facts apply.

The Berkeley County West Virginia Prosecuting Attorney’s office has charged Billy with Committing a Terrorist Threat and with Wearing Body Armor During Commission of a Felony.

In order to convict Billy of these charges, the State must prove each ‘essential element’ of the individual charges.  In this case, the State must first prove that Billy committed a terrorist act, and then must prove that Billy wore body armor while committing the terrorist act in order to achieve a conviction on both charges.  Each of these elements must be proved ‘beyond a reasonable doubt,’ which is the absolute highest burden of proof within the jurisprudence of the United States.

Each charge’s elements generally consist of the following:

1)      There must be a law prohibiting the acts in question.

2)      There must be criminal intent, or ‘mens rea,’ Latin for ‘guilty mind.’

3)      There must be a criminal act, or ‘actus reus,’ concurrent with the criminal intent.

4)      There must be ‘causation,’ or proof that the actual harm intended to be prevented has occurred.

I will attempt to break down each charge, and their essential elements, as I understand them.  Please bear in mind that, while I am an attorney, I am not admitted to practice law in West Virginia, and, therefore, my understanding of West Virginia statutory interpretation may be somewhat flawed.

First, the charge of Committing a Terrorist Act:

The law prohibiting such an act is West Virginia Code §61-6-24.  I have taken the liberty of underlining the portions of the statute that I believe are applicable to Billy’s case.

§61-6-24. Threats of terrorist acts, conveying false information concerning terrorist acts and committing terrorist hoaxes prohibited; penalties.

(a) As used in this section:

(1) “Economic harm” means all direct, incidental and consequential pecuniary harm suffered by a victim as a result of criminal conduct. Economic harm includes, but is not limited to, the following:

(A) All wages, salaries or other compensation lost as a result of the criminal conduct;

(B) The cost of all wages, salaries or other compensation paid to employees for time those employees are prevented from working as a result of the criminal conduct;

(C) The cost of all wages, salaries or other compensation paid to employees for time those employees spent in reacting to the results of the criminal conduct; or

(D) The overhead costs incurred for the time that a business is shut down as a result of the criminal conduct.

(2) “Hoax substance or device” means any substance or device that is shaped, sized, colored, marked, imprinted, numbered, labeled, packaged, distributed, priced or delivered so as to cause a reasonable person to believe that the substance or device is of a nature which is capable of causing serious bodily injury or damage to property or the environment.

(3) “Terrorist act” means an act that is:

(A) Likely to result in serious bodily injury or damage to property or the environment; and

(B) Intended to:

(i) Intimidate or coerce the civilian population;

(ii) Influence the policy of a branch or level of government by intimidation or coercion;

(iii) Affect the conduct of a branch or level of government by intimidation or coercion; or

(iv) Retaliate against a branch or level of government for a policy or conduct of the government.

(b) Any person who knowingly and willfully threatens to commit a terrorist act, with or without the intent to commit the act, is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $25,000 or confined in a state correctional facility for not less than one year nor more than three years, or both.

(c) Any person who knowingly and willfully conveys false information knowing the information to be false concerning an attempt or alleged attempt being made or to be made of a terrorist act is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $25,000 or confined in a state correctional facility for not less than one year nor more than three years, or both.

(d) Any person who uses a hoax substance or device with the specific intent to commit a terrorist act is guilty of a felony and, upon conviction thereof, shall be fined not less than $10,000 nor more than $50,000 or confined in a state correctional facility for not less than one year nor more than five years, or both.

(e) The court shall order any person convicted of an offense under this section to pay the victim restitution in an amount not to exceed the total amount of any economic harm suffered.

(f) The court shall order any person convicted of an offense under this section to reimburse the state or any subdivision of the state for any expenses incurred by the state or the subdivision incident to its response to a violation of this section.

(g) The conviction of any person under the provisions of this section does not preclude or otherwise limit any civil proceedings arising from the same act.

Thus, the law itself prohibits not only the commission of a terrorist act, as defined by (a)(3), but also the threat to commit a terrorist act, as outlined by (b).  Further, a terrorist act or threatened terrorist act does not require the use of actual materials, and the use of a ‘hoax substance or device’ is sufficient to support a conviction under the statute.  Subsection (a)(2) sets forth the definition of a ‘hoax substance or device,’ and it is quite possible that Billy’s Airsoft pellet rifle falls within the very broad scope of this definition, as it ‘is shaped, sized, colored, marked, imprinted, numbered, labeled, packaged, distributed, priced or delivered so as to cause a reasonable person to believe that the substance or device is of a nature which is capable of causing serious bodily injury.’

The law also requires intent, or mens rea.  Committing a terrorist act requires that Billy actually conducted some act that falls within the statutes definition of a ‘terrorist act.’  At present, we have no information that Billy did, in fact, commit such an act.  However, the law also prohibits the threat of a terrorist act.  It is my guess that the State is actually going to proceed under this portion of the statute.  To satisfy the intent element, the State must prove beyond a reasonable doubt that Billy knowingly and willfully threatened commission of a terrorist act.  Whether or not he actually intended to follow through with the threat is irrelevant.  To date, no information has been made public that Billy did, in fact, threaten any terrorist act, or any other threats at all.  It is quite obvious, even to a layman, that the intent must be proved, as well as the threat itself.

This brings us to the ‘actus reus’, or criminal act itself.  What we know is that Billy was jogging in his military-issued equipment.  We also know that he was apparently carrying a pellet gun.  Neither of these individually, nor jointly, would rise to the level of either the commission of a terrorist act, or the mere threat to commit a terrorist act.  There is absolutely no indication that Billy made any threatening gestures or verbal threats to anyone.  There is also no indication that Billy intended to make any threatening gestures or verbal threats toward anyone.  From the available information, some observers were concerned about Billy running in his gear, and some may have been, as characterized by the Prosecuting Attorney, ‘terrified’ by Billy’s behavior.  Without any act on Billy’s part, however, this alone does not rise to the level of the conduct prohibited by the statute.

Next is causation.  As I just mentioned, the Prosecuting Attorney is, as far as I know, premising the charge upon some members of the public’s subjective reactions to Billy’s appearance.  There is no information available that would support any finding that Billy intended to ‘intimidate or coerce the civilian population,’ as required by (a)(3)(b)(i).

Taken as a whole, given what we know now, there appears to be no actual basis for the charge, and, further, there appears to be no evidence to substantiate any of the essential elements of the crime of committing, or threatening to commit, a terrorist act, let alone evidence sufficient to prove each of the above essential elements beyond a reasonable doubt.  The mere response of members of the public, without any intent on Billy’s part, is wholly insufficient to obtain a conviction.  In fact, I firmly believe as a criminal defense attorney myself that the charges are completely meritless and will be dismissed.

I should also mention the issue of ‘prosecutorial discretion.’  The Prosecuting Attorney’s office has the ability to dismiss, to decline to prosecute, to modify, or to prosecute any charges brought against a defendant.  As has been made apparent by the Prosecuting Attorney’s office in this case, they have opted not to exercise their discretion to dismiss or decline to prosecute the charges against Billy.  Similarly, despite their statements that Billy was intoxicated at the time of his arrest, no charges of disorderly conduct or public intoxication have been brought.  The two original charges still stand.  Thus, the Prosecuting Attorney’s office has made a conscious choice to pursue the charges as initially brought.

Next, we look at the charge of wearing body armor while committing a felony offense, which is covered by West Virginia Code §61-7-15.

§61-7-15. Persons prohibited from committing violent crime while wearing body armor; penalties.

(a) A person who wears or is otherwise equipped with body armor while committing a felony offense, an element of which is force, the threat of force, physical harm to another or the use or presentment of a firearm or other deadly weapon, is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than two nor more than ten years or fined not more than ten thousand dollars, or both.

(b) As used in this section, “body armor” means a jacket, vest, or other similar apparel or device constructed to provide ballistic resistance to penetration and deformation and intended to protect the human torso against gunfire. The term may include, but is not limited to, apparel that incorporates inserts, or variations in construction of the ballistic panel over small areas of the torso, for the purpose of increasing the basic level of protection of the armor (whether ballistic or blunt trauma) on localized areas. Body armor may be constructed of Kevlar or other similar fabric and may be reinforced with other materials. Body armor may incorporate “threat” or “trauma” plates (which are inserts that fit into the vest that will stop more powerful rounds) or may, as “threat armor”, incorporate hard panels.

As is obvious from section (a), if a person is wearing body armor while committing a felony with an element of force or ‘the threat of force, physical harm to another or the use or presentment of a firearm or other deadly weapon[.]’  I must state that Billy was carrying two knives on his person, which may, under the definition of ‘knife’ in WV Code §§61-7-2(3) and (9), may be considered ‘deadly weapons.’  Having said that, there is no evidence that Billy used, brandished or presented the knives while he was jogging, and, therefore, did not threaten force or use force against anyone with them.

Subsection (b) would obviously apply, as Billy was apparently wearing his issued ballistic vest/plate carrier, and did, in fact, have the plates within the vest.  However, without meeting the requirements of subsection (a), this is a moot point.

In summation, it does not appear that the Prosecuting Attorney’s office can prove up even a single element of either of the charges brought against Billy.  The Prosecuting Attorney’s office’s actions, seen in this light, are, therefore, inexplicable and, from an objective legal standpoint, irrational.  It may be that there are other factors involved, such as political aspirations, or perhaps attempts to placate perceived demands of the public, which have led to Billy’s continued prosecution and detention.

I must once again stress that my reading of the statutes in question is imperfect, as I do not practice law in West Virginia, and am not admitted to the State Bar of West Virginia.  I must also state that there may be facts and circumstances that have not yet been made public, which could have a material impact upon the case.  I have based my opinion solely upon the information that has been available as of the time I write this.