March 5, 2014, 11:56 AM | #51 | |
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March 5, 2014, 12:31 PM | #52 | |||||||
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March 5, 2014, 12:54 PM | #53 | |
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March 5, 2014, 01:08 PM | #54 |
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Tell them Uncle Joe told you to get a double barreled shotgun for defense.
On a serious note, that's a generic questionnaire lawyers use to weed out potential conflicts of interest. Some really get lengthily , and very to the type of crime/suite being considered. If this or any question bothers you don't answer it. No one will notice until you get called and its a gun related course. You said you were in LE, so the question will never come up because the defense will have you replaced before you get to the gun question. I've been scheduled for jury duty several times, but being retired LE, I was never allowed on a jury. Federal, state, or local. They don't like cops on juries. Some do sneak in on civil cases though. I got to the point I just go as far as saying I'm retired LE and don't finish filling out the form. I've never be questioned why I decided not to answer.
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March 5, 2014, 01:51 PM | #55 |
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Rather than all this recent legal court decisions etc. that tells us just how free or un-free we may or may not be I am looking at this from a Founding Father's view point. I have mentioned the 4th Amendment but there is the 9th and 10th and it seems to me that there are other rights vested in the citizen beyond those in the 1st to 8th. One is these is a right to privacy. Now I would say there are limits on that right but the limits must pertain to the case in hand.
For example let's say that the Supreme Court says mandatory gun registration at the Federal level is unconstitutional. SO...a bunch in Washington decides "No Problem, we'll just work it a different way" So they put a tax on all firearms which is to be added to your Federal Income tax. NOW IF YOU DON'T comply you are in violation of a federal income tax occurrence. This firearms tax requires the serial number and make of every gun in the country. As I see matters, such a thing is unconstitutional, the purpose of the tax is to collect revenues not find out who owns a firearm. Applying this to a jury summons question that if you don't answer may put you in legal trouble- I think it is the same thing. As I said, it should not be up to the court system to start filtering jurors. They can do a criminal background check (public records) and weed out criminals but screening jurors should be something done by the DA and defense attorney, not the court system. What to do on the summons? Man, I don't know. You are alone, all my yourself. Isn't that how government's gain power. Take us on one at a time. Maybe write back, "I find your question unacceptable and a violation of privacy and my Constitutional freedoms. You have a right to summon me for jury duty and I will comply. tell me when to appear and I will appear. I will answer any question put to me by a District attorney or defense attorney, in seating the jury. If you wish to legally prosecute me I will demand a trial tried by a jury of my peers. I doubt such a jury will find me at fault." QUESTION. On this government right to search without warrant. On a hunting license you agree to let a wildlife officer search your vehicle or camp. On a driver's license you agree to let an officer within reason search your vehicle, same with boats, etc. How do the rest of you see this "unwarranted" wording in the Constitution? Recently it seems the logic is "Unwarranted" means the same thing as unreasonable. Traditionally I thought it meant a law enforcement officer with a court issued warranted IN HAND that listed the law you violated and what was to be searched. If the thing to be searched was a person you may have kidnapped, etc., the law enforcement officer could not be opening up a small drawer since a human being could not be in such a place. Without a court ordered warrant in hand no law enforcement officer could conduct a search unless it was within the actual occurrence of a crime being conducted. |
March 5, 2014, 01:57 PM | #56 | |
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March 5, 2014, 02:16 PM | #57 | |
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Additionally, they may or may not do a background check or weed out the criminals. Serving on a jury, from what I remember, is a civil right that may or may not be restored depending on where you live and what steps, if any you have or have to have undertaken to restore your civil rights. Law Enforcement (State Patrol, local police, Coast Guard for boats) may or may not be able to perform a safety inspection. This is not the same thing as a search. For example there was a guy named Rodney Joseph Gant. He was pulled over, arrested for driving on a suspended license, handcuffed, and locked in the back of a patrol car. The courts decided that because Gant was handcuffed and locked in the back of a police car and thus couldn't get any weapons, or destroy evidence in the car, the government needed a warrant to search his car. |
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March 5, 2014, 02:28 PM | #58 |
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One more thought. I know we are all frustrated these days with criminals "walking" because the police didn't handle matters correctly, all sorts of things along those lines. I'll agree it is a problem. Then, we all want to be good citizens, what's wrong with answering a few intrusive questions, no harm, etc. The issue is when to complain? Personally I think the time to complain has long since passed. For example in a lot of situations today you really don't get a trial by jury, you get an administrative law court judge or some type of arbitration because it is "more expedient". I've often wondered about whether such things would have been acceptable to the founding fathers? In a lot of instances there is a clever tie in to more government control. On the wildlife officer searching your vehicle. If you don't want to submit to that then fine- the attitude is just don't buy a hunting license. BUT isn't hunting an American activity enjoyed prior to the Constitution? Under pre-existing rights wouldn't it be protected by the 9th Amendment? I think the 9th has teeth, I may be wrong but I think that was what the Supreme Court used to say Slavery was Constitutional and why an Amendment needed to be passed to Constitutionally prohibit slavery.
In any event it seems to me that questions on a jury summons that have no bearing to you arriving on time to serve as a juror are not valid. Whether you will or will not be an impartial juror isn't a function of the court system, that ought to be dealt with by the two attorneys in the case. Let me side step a little. Remember when Clinton pardoned a fugitive from justice by the name of Rich? It was on all the talk shows and all the current day experts said the often stated fact that the president's pardon power was "Absolute". Well I was listening to this over and over and then got thinking that the way the Constitution was written- very little was absolute. There is a law library not far from where I live so I went and read the cases on file. Wow! Times do change. There was case back in the early 1800's that was very similar and the Supreme Court THEN felt the pardon power could not be used to cloud the separation of powers established by the Constitution. In short, a fugitive from justice was answerable to the Judicial Branch of government, the president could pardon AFTER a conviction but he could not use the pardon power to prohibit the Judicial branch from exercising its Constitutional power to prosecute a crime. The reasoning of the supreme court at the time was pretty sound. The court felt the pardon could be used as an obstruction of justice, that without a trial facts that may implement others would never be discovered. The Presidential pardon power was the federal equivalent to a Governor's power on State level crimes. Of course it is no longer that way but I mention that in the respect that I don't think government can just on its own hook intrude in areas beyond its function or role. So, to me at least, such questions on a jury summons are inappropriate. |
March 5, 2014, 02:47 PM | #59 |
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JimDandy: well if that is the situation then I'm not inflexible but it would be nice for the court to explain things, such as, "You have been pre-selected as a potential juror in Smith vs. The City of Hometown, a case involving firearms ownership. Both the District Attorney and the Defense Attorney have a right to question potential jurors and both have a right to refuse a set number of potential jurors. Accordingly, do you possess a firearm? Your answering this question insures us we have an adequate number of potential jurors that are both gun possessors and not gun possessors so that a jury can be seated""
Maybe I'll agree with that set up but its all in the name of being expedient, I think it might be better to limit the weeding out in the courtroom. |
March 5, 2014, 02:47 PM | #60 | ||
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March 5, 2014, 04:27 PM | #61 |
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After some further searching, It appears that while we have some logic in 4th and 5th amendment questions on this privacy issue, the answer to juror privacy lies in the first and fourteenth amendment. (Yeah, aside from the 14th being one big giant catch-all I don't know) Brandborg v Lucas Unfortunately it's not a government website, and I can't be sure those are the actual words of the court reprinted so due to possible copyright issues, I won't quote anything.
Basics are: A lady got summoned. Had a questionnaire. Refused to answer 12 questions (and inadvertently overlooked a thirteenth). She went to her court date with her partially filled out questionnaire. The judge ordered her to finish it. She refused. She was taken out of court, the Judge and the lawyers talked, with both the prosecution and defense somewhere between suggesting and asking she be held in contempt. (Part of why I think it might not be a direct quote of the decision, as I can't imagine that sort of thing in the official record) She was held in contempt for a 3 day jail sentence, and a $200 fine. She appealed. Her contempt citation was set aside. |
March 5, 2014, 04:30 PM | #62 | |
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March 5, 2014, 04:38 PM | #63 | ||
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The cases you've cited in which the government actions were found to constitute a search involve physical intrusion or surreptitious surveillance under circumstances in which one has a reasonable expectation of privacy. They have nothing to do with the simple asking of a question. Not every governmental annoyance or perceived impertinent question is a violation of a constitutional right. When you get a federal judge to buy your analyses, let us know. In the meantime, you've not made your case.
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March 5, 2014, 04:53 PM | #64 | |||||
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I'm going to assume you and I were posting at the same time, and so you haven't seen the Brandborg case I cited yet that found a juror's right to privacy in the 1st and 14th amendment apparently, at least when the questions aren't established as relevant to the case they're being used on. Or some such. |
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March 5, 2014, 05:08 PM | #65 | |
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March 5, 2014, 05:15 PM | #66 | ||
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March 5, 2014, 06:11 PM | #67 |
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Well lots of grey areas, I'm trying to recall one jury I was on regarding a kid arrested for drunk driving and disputing the charge. The defense attorney was asking potential jurors if we had ever worked as police men, etc- which makes sense because it was thhe kid's work against the police officer's word. It is a question directed at whether a juror may or may not be able to render an impartial decision- that's fair. No problem there. I still don't like the questionaire thing. Maybe forget the expediency aspect and stick the tradition. It's worked fine so far.
Hey how about that woman prevailing? A jury is the free citizen's final hope again injustice. Juries may be imperfect but I'll always trust my fellow citizen over elected officials. I'd trust you guys being on my jury before a government pick. |
March 5, 2014, 06:27 PM | #68 | |
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The lawyers can correct me if I'm wrong, but asking if anyone was a law enforcement officer is pretty standard. They didn't ask you because it was the defendant's word against a LEO's so much as some sort of conflict of interest/bias that's assumed to reside in law enforcement as a group- i.e. if someone is arrested, they're guilty is the bias. Conflict being that both Prosecutors and LEOs are employees of the State. They wouldn't let an employee of XYZ company sit on a jury where XYZ is a party type of thing. Some combination of one or the other of those two. At least that's my understanding. |
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March 5, 2014, 06:48 PM | #69 | ||||
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Anyway, Brandborg v. Lucas, 891 F.Supp. 352 (E. D. Tex., 1995) is an interesting case. First, of course, it's a federal trial court case and therefore of no real value as precedent, nor does it support your various contentions up to this point. However, it does help illustrate how certain questions in a jury questionnaire could be subject to challenge as irrelevant and thus an impermissible invasion of privacy. Ms. Brandborg was called as a prospective juror in a Texas state court. She was asked to complete a 110 question questionnaire. She answered all but 12 of those questions and declined to answer those on the theory that they were needless intrusive and violated her privacy. The questions she declined to answer related to such matters as her income, religious affiliation, political affiliation, medications she takes, and similar questions of a highly personal nature. She continued to decline to answer even after discussion with the judge in the Texas court and even after the judge advised her that she could be cited for contempt of court. Given her continued refusal to answer she was cited for contempt. She challenged that citation in the state court and ultimately found her way to the federal district court on a petition for a writ of habeas corpus, resulting in the memorandum decision cited above setting aside the contempt order. In his decision the magistrate judge first considers the challenge of finding an impartial jury, 891 F.Supp. 352, at 356: He also considers the constitutional right of a defendant to an impartial jury, the constitutional right of privacy derived from the First and Fourteenth Amendments, the right of the public to open proceedings and the trial court's role in protecting these competing rights. Then, applying those principles to the instant case, the magistrate judge writes, at 360 -- 361 (emphasis added): And in setting aside Ms. Brandborg contempt citation, the magistrate judge writes, at 361 (emphasis added):
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March 5, 2014, 10:07 PM | #70 |
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Spats, re: trying to shoehorn objection to the firearms question on a federal jury questionnaire (which is taken online, link in jason_iowa's second post iirc, and requires selecting yes or no from a drop-down for whether there are guns in the household)...
The problem is, as I think we all acknowledge, there is no precedent (at least none I've seen cited) tying one of the rights, or expansions of rights (4th, 5th, "right to privacy", etc) to refusal to answer overbroad questions on a preliminary jury survey. So of course all such arguments are going to be without basis, until/unless someone challenges those bogus questions in court, and then the courts either will or won't find (I would hope they would) those questions to violate our right to privacy, or against self-incrimination, or some other right. Whatever "need" the federal judiciary has to sift through potential jurors for gun cases can't possibly be met by questions about guns in the household. The questions aren't detailed enough to be useful for the purposes they'd presumably be used for, and they're an unnecessary privacy violation for jurors who aren't called or who are assigned to (the majority of) cases where gun ownership and RKBA opinions aren't relevant. The other aspect of this is the 5th amendment situation. Because of Salinas, the rational thing to do is to declare the 5th amendment as a reason you're not answering, even if the 5th amendment doesn't apply. Since, if it does apply, and you don't mention the 5th amendment, your failure to answer might be used against you (or, in the case of a federal court form, perhaps if you get the wrong judge on the wrong day you'd be cited for contempt.) If this all seems like unproductive fantasy to some of you lawyers, a) are questions about your guns and what you use them for on a general survey given to all prospective jurors acceptable to you; and b) if not, what would you do about it, if you were going to stand up for what you perceive to be your rights? Answer the questions, then take up the issue with the relevant authorities hoping to change the surveys for the future? That sort of non-confrontational approach may work better, but then you've answered the questions, allowing the government to violate your perceived rights.
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March 6, 2014, 10:25 AM | #71 | ||||
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Were I to do so, I would say that such a question, if not related to the case being summoned for, could and probably would violate some level of Constitutional protection. As someone ahead of me metioned the 4th amedment, and it made some logical sense, I ran with that exploring and hypothesizing in a discutions format. In Post #11 I had already allowed there may be cases at some past, present, or future time where the questions might be relevant. In Post #35 I pointed out and added to the discussion that the fourth and fifth amendments may not apply, because of some distinction between civil and criminal actions as per a Cato paper. I had already alluded to some of this distinction in regards to the 5th amendment when I pointed out the need for risk. You will undoubtedly disagree, but what I found most interesting was the decision was based - at least in part - in the 14th amendment, like Shelley v Kraemer. |
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March 6, 2014, 12:58 PM | #72 |
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Frank- thanks for citing the case, etc. very helpful for me at least and I think the court did a good job on that decision, the aspect of balancing the private rights versus the need to obtain an impartial jury. I think that court decision is one that any citizen in a free country can accept.
So...with that court decision in mind, let's get back to the ORIGINAL questionnaire that Jason was sent. I can see that if a case involved an issue about firearms then asking if the juror was a possessor of firearms might be valid but what about the other questions: "what kind of a gun is it?", "What is the gun used for?". Those seem pretty intrusive to me. It seems to me that simply knowing if a potential juror is or is not a gun possessor ought to be sufficient to establish if the juror is impartial. What if the juror owns say 20 different firearms. Theoretically, to answer the questionnaire, the potential juror would have to list each firearm and what each firearm is used for- to me- that is excessive. |
March 6, 2014, 03:26 PM | #73 | |
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Interesting discusion.
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1. Do you or anyone in your household possess a fire arm? Not at this time; not to my knolledge/unknown. 2. What kind of gun is it? See above 3. What is it used for? See above 1. This question is written in the present tense. Now they may assume that I currently don't own a firearm based on my answer. I am not responsible, however, for their assumptions. Now I may own a firearm, but it is completley honest to answer that I the time I filled out the questionaire, I did not have a firearm in my immediate possesion. 2 & 3 are obvious. IMO, I don't believe the answer above would flag you as combative, sarcastic, or non-responsive, but I could be wrong about that. For the record, I learned a lot watching Bill Clinton. ... |
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March 6, 2014, 04:16 PM | #74 | |
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I can also remember discussions on here about people losing their firearms rights somewhere, I think California, because the state decided that even though a prohibited roommate/spouse/cohabitant (don't remember the exact details on the relationship or why they were prohibited) never touched the firearm, let alone possessed it the way an everyman on the street would define it, that a transfer of possession had taken place because there wasn't any form of security (Gun Safe, trigger lock, locked door) between the cohabitant in the common area, and where the firearm was stored. Now to be fair, that may have been alarmist reporting of an urban legend quality, I didn't pay attention to that thread very closely- but the reasoning was supported in another thread about storing your firearms at an out of state relative's home. And as I remember more, it also brings to mind some concerns about Manchin-Toomey from earlier, that a husband spending more than two weeks away from home would/could have violated the transfer laws if his wife stayed home. What I'm getting at, in other words, is if the firearm isn't on your person, but left at home, or locked in your car in the parking garage, is it still legally in your possession? Or is it in no one's possession? |
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March 6, 2014, 04:28 PM | #75 |
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I'm sending this back with Doc Brown in the DeLorean to Middle Ages for the Angels on the Head of Pin Council to discuss.
Closed (with a touch of staff discussion).
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