Mandatory Gun Insurance Is Common Sense

I applaud the Oakland County (Michigan) prosecutor’s decision to indict for involuntary manslaughter the parents of the boy who killed four fellow students last week.

If ever a case demanded such a charge, this is it. The parents bragged on social media that the dangerous weapon was the boy’s birthday present; when a worried teacher caught the boy ordering ammunition online, the boy’s mother texted him, “LOL. I’m not mad at you. You just have to learn not to get caught.” Next day, after the boy’s conduct worried school authorities, the parents “flatly refused” to take him out of school for the rest of the day. Then, . . . bang!

In New Mexico, “involuntary manslaughter” means the defendant should have known his/her conduct was dangerous, but “acted with a willful disregard for the safety of others,” causing someone’s death. That would cover the Michigan case. Still, our Legislature should review our law and consider changes clarifying the laws’ applicability to gun cases, without violating gun owners’ constitutional rights.

I suggest mandatory gun insurance, similar to mandatory automobile insurance; a safe-storage law; and including a notice with firearm licenses or permits that “the licensee acknowledges that s/he understands that firearms are dangerous and that permitting felons, children, and persons who are emotionally or mentally unstable to possess firearms endangers them and unknown third parties.” It may sound silly to have gun owners acknowledge that guns are dangerous, particularly in kids’ hands; but no shyster could get someone like the Crumbleys off by arguing that they didn’t figure the safety of others was implicated when they let their troubled teenager have easy access to a machine gun.

One benefit of mandatory gun insurance is that possessing an uninsured firearm would constitute an unlawful act. That would facilitate prosecution where someone acted with willful disregard for others’ safety.

Although the wrongly-decided 1988 U.S. Supreme Court decision in Heller v D.C. vastly expanded individual gun rights, it conceded limitations. The Second Amendment couches the right as helpful to “a well-regulated militia.” Insurance and licensure constitute appropriate regulation, even if stronger gun laws that sharply restrict who can get those licenses would not be upheld. (A few states have considered mandatory insurance, and I think San Jose, CA passed such an ordinance this year, but I couldn’t find a Supreme Court decision one way or the other.) Rep. Carolyn Maloney, (D-NY) introduced in 2018 the Firearm Risk Protection Act, requiring proof of liability insurance before gun purchase, but it didn’t pass. Supporters noted that car fatalities had declined by 25 percent in a decade, but gun fatalities kept rising.

Insurance would rely on the market. Insurers specialize in weighing risks and calculating odds and charge appropriately. As car insurance premiums are based on car and driver, so that a 19-year-old man with a Porsche and two DWI’s pays more than the proverbial little old lady, a hunter who’s never had an incident with his shotgun would pay less than the first-timer buying a semi-automatic. People would be financially discouraged from buying the most dangerous guns, and encouraged to attend gun-safety classes and adopt safe practices.

Safe storage rules could save lives, by educating and encouraging well-intentioned gun owners to do right. More gun-owners would know the rules, and follow them; and ignoring them would help clarify responsibility for a shooting.

We need to do more. These steps are common sense.

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[The above column appeared this morning, Sunday, 12 December 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site. Interestingly, fellow columnist Algernon D’Ammassa touched on gun-violence today too, in "Santa, Please Bring the Ammo!"]

[First, I’m not happy to see anyone in distress, or in a cage; and, yeah, listening to Mrs. Crumbley’s tearful repetitions of “Not Guilty” from jail made me sympathize, and recall my own blissfully dumb moves. I suspect most of us can recall many of those, if we’re honest, and were lucky more of them didn’t have the tragic consequences they could have had. She didn’t intend to kill four schoolkids. But her carelessness, when she had plenty of warning, did kill four schoolkids. And aside from whether she deserves to be punished (as the law says she does), I’m convinced that other parents or siblings who own guns and have offspring or siblings who aren’t too responsible watched her pathetic performance, on Internet or TV, and some of them might see themselves there, and improve their gun-safety protocols at home.]

[Second, I can’t predict with certainty how the U.S. Supreme Court would rule on mandatory gun insurance and/or on reasonable gun-storage safety rules that weren’t too onerous on someone who might need that gun for self-defense. The Heller ruling was a complete departure from nearly 200 years of cases that tied the Second Amendment right somewhat to the stated reason for it, “a well-regulated militia,” and denied that it gave individuals the unbridled right to point a cannon at city hall, but Heller changed all that. (Was the fact that a key justice’s wife essentially worked for the NRA coincidental?) The current supreme court could be the worst we’ve seen in 100 or 120 years, and might do anything; but why shouldn’t we try. And if I’m right that no Supreme Court decision has rejected the idea, why shouldn’t NEW MEXICO enact a sensible law requiring mandatory insurance?]

[Anyway, thanks for reading this; and take care out there!]

[btw, experienced local defense attorney Deborah Thuman, correctly pointed out that sheister, which we write as shyster, is the appropriate spelling, and that the German refers to a man taking a shit, and not necessarily to attorney.

She also provided a link to the transaction record required by federal law [ https://www.atf.gov/firearms/atf-form-4473-firearms-transaction-record-revisions ], which already provides that folks with mental illnesses can't buy guns, and observed, "In my 27 years aas a criminal defense attorney, I can't think of a single instance where my client bought a gun from anyone required to keep records.  As long as there is a secondary market for guns, there is no gun control."  She recommends outlawing assault rifles.  I think we should do that, if the political climate allows, but also impose mandatory gun insurance.  While habitual criminals get a gun through the secondary market, I'm not sure that's as consistently true of families buying an assault rifle for the fun of it but not treating it as, gee whiz!, something that could kill another human being.

She added, as to holding parents accountable, that in Children's Court the judges are extremely reluctant to lock up a parent instead of the kid, even where it appears that the parent was really more at fault than the kid.]

Citizen-Called Grand Juries?

Reading that the New Mexico Supreme Court paused citizens’ grand juries to investigate the Governor’s mostly fine handling of the pandemic sparked a memory from 1977.

The news story correctly noted that we’re one of the few states where citizens can petition for a grand jury and have one called. It added, “[NM Sen. David] Gallegos, who is also a Eunice school board member, said he believes this is the first time the constitutional provision for citizen-led grand juries has been used.” Actually, it’s often been used.

It is an unusual provision. I learned of it in 1977, after I’d quit my job as El Paso Times bureau chief in Las Cruces. A gentleman who alleged that police officers had beaten him got 75 people to sign his petition for a grand jury, to which he would bring his claim. Third Judicial District Court duly convened a grand jury. (Today it would require “the greater of two hundred registered voters or two percent of the registered voters.”)

I’d been the investigative reporter here, and, after three years, people knew me. (Initially, city officials were shocked to see a long-haired guy stroll into city commission meetings and plunk his motorcycle helmet down on the reporters’ table. Mayor Tommy Graham dubbed me, “Captain Zoom.”)

So when the list of grand jurors included “Peter Goodman,” folks were frankly disbelieving. A rare citizen-called grand jury, and a local muckraker is on it? (So far as I know, it was pure chance. Not some court functionary being mischievous.)

The thing about a grand jury is, once formed, it may investigate any public malfeasance in the county, and must inspect the jail, which we did. (My main memory of that jail, possibly from another visit, was a city police detective taunting a prisoner. The prisoner may have deserved it; but a few years earlier that same detective had brought a movie camera to antiwar demonstrations, to record and identify us.)

As I recall, we didn’t indict anyone for the alleged beating that had caused the jury. (I have to be vague here, because grand jury matters are secret, even decades later.) District Attorney Ernie Williams brought us a few criminal cases. We also investigated some things I’d been told by employees about a public entity, much to that entity’s chagrin, but ultimately we did not make any findings or indictments regarding those claims.

One thing I noticed, and have confirmed since during decades of intermittent contact with juries, was that although we came from all walks of life, everyone took the work seriously and did the best possible job.

So, yeah, it’s an obscure constitutional provision most states don’t have; but it’s definitely been used; and I’m kind of fond of it, mostly because, as folks in the Progressive Era passionately believed, a citizen’s grand jury with such power can check abuses of power.

However, the current effort to beat up the Governor with a grand jury smells rotten. Agree or disagree with her, there’s no hint of criminal activity; and where’s the malfeasance? (I’m also not sure whom a county’s grand jury has jurisdiction over.) Besides, if Lujan Grisham has to testify at a dozen grand juries, she won’t have time to do her job. Could the juries then investigate the neglect of duty they caused?

I hope this partisan abuse of the grand jury process won't spark a constitutional amendment rescinding that right.

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[The above column appeared this morning, Sunday, 5 December 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.] 

 

 

Peng Shuai and the Rest of Us

Even folks who don’t follow tennis now know who Peng Shuai is, and may be contemplating what her situation means for international relations and democracy.

Peng is a veteran professional tennis player from the Peoples Republic of China, who was briefly ranked No. 1 in doubles in 2014.

November 2, Peng alleged that a former PRC senior vice premier sexually assaulted her three years ago. Within twenty minutes that tweet (on Wenbo) disappeared. So did Peng. Worried friends and tennis officials reached out to her. Nothing. State-controlled media aired unconvincing videos of Peng and said she wanted to spend time with her family and hoped people would respect her privacy.

An International Olympic Committee official says he talked to Peng by video, with a Chinese olympic official. He says she’s fine. Of course, the IOC’s overriding priority is to hold the Winter Olympics in February as smoothly and grandly as possible. In Beijing. Unsurprisingly, the IOC statement omitted Peng’s allegations, which Chinese media euphemize as “the things people talk about.”

A former U.S. president and a former New York governor wish they could so easily disappear harassed women and silence those pesky reporters.

Peng is being “reeducated.” Uighurs and Tibetans get reeducated by the thousands. (Traveling around China long ago, we passed through a remote area experiencing plague. When we reached Lhasa, a young British man sent a story on the plague to the newspaper he worked for. The government came for him. For days, they kept him all day in the police station, until he confessed his error. He had embarrassed China. They couldn’t do to him whatever they’re doing to Peng; and they can’t do to Peng, probably, what they are doing to tens of thousands.

You can’t dissent. You are better off if you are Han, not some lesser ethnicity. Whether from racism or some misguided view of communism, the PRC is destroying the ethnic culture and religions of Tibetans, Uighurs, and others – reeducating them in camps.

We should contemplate Peng’s fate. Out country should reconsider helping the PRC use the Olympics to glorify China. We should ask whether “business as usual” is appropriate. (These are tough issues. If we’d boycotted the 1936 Berlin Olympics, we’d never have seen video of Jesse Owens leaving Aryans in his dust.)

Contemplating Peng reminds us of how different China is from us – and how we’re similar. We too are still battling to outgrow racism and sexism. We laugh at how ludicrous the Chinese government’s lies sound; but you can get away with a lot, if you’ve silenced independent journalism. Here, it’s different; but we just had a president who rarely deigned to make his lies plausible, and who largely got away with absurd falsehoods. On January 6, and since, in state capitols around our nation, our democracy has been under attack.

If you’re a Republican, maybe you sympathize. Some Republicans believe, as firmly as some Chinese officials believe in their Party, that they’re doing the right thing for our country by limiting citizens’ participation in democracy. They’re “patriots.”

But democracy is critical. Ours is endangered. Yes, the electoral college, corruption, gerrymandering, and voter suppression have substantially limited democracy; but what we have matters. Without it, we are China. Or Brazil. We can’t let even “our side” toss it aside for shortterm partisan gain.

We have much to give thanks for; but if we sleep we could quickly lose much.

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[The above column appeared this morning, Sunday, 28 November 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[By the way, Happy Thanksgiving! There’s a lot wrong with some of our most common ideas about this holiday, but gratitude is worth celebrating, and practicing. I know it’s getting trendy these days to point this out, but gratitude is not only a graceful attitude, it’s incredibly healthy, and both personal observation and scientific reports tell me it makes us happier.]

[Peng Shuai may not feel so grateful these days. I wish her freedom. As I suggest in the column, her well-publicized plight is important, but partly because it symbolizes the repression many our suffering. Read first-hand accounts of Uighurs and Tibetans.)

This is not the place for me to say much about my personal insight into all this, from various sources including travels in China and Tibet (and among the Uighurs) many years ago. (My travels, in 1985-88, were much closer in time to the Chinese invasion of Tibet and to the Cultural Revolution than to 2021.)  I loved China.  From what I saw first hand, and the direct contradictions between what good people who hated the Chinese Government and good people who praised the Chinese Government, I wanted to learn more, and did; and I portrayed some of it in a novel.

Soon I’ll post on my blog more about that experience, and what I learned.  This morning, every time I start to summarize it I find myself rapidly and passionately writing more than I have time to write or you have time to read this morning.

I will say that I saw, and heard harrowing first-hand tales from folks who’d experienced it, the terrible pain and devastation the Cultural Revolution had caused; and I came to a better understanding of the Chinese invasion of Tibet.

(On one occasion, we traveling through a remote western area experiencing plague. When we reached Lhasa, a young British man sent a story on the plague to the newspaper he worked for. The government came for him. For days, they kept him all day in the police station, until he confessed his error. He had embarrassed China, but he was a wai guo ren.  A British citizen. They couldn’t do to him whatever they’re doing to Peng; and they can’t do to Peng, probably, what they are doing to tens of thousands.)

1985 - Peasant

However, I say all this without forgetting the scale of the problem Mao and his cohorts faced when they suddenly won their underdog fight against a warlord (Chiang Kai-shek) well supported by the U.S. Even in their treatment of the Tibetans, which I abhor, there was more good intention mixed in with the self-interested repression than most realize.]

[Sorry if I too often mention the hope of preserving our democracy. It is under attack. The attack is bold, brazen, and dangerous. I worry about its effects. And as long as folks pursue voter suppression and anti-democratic policies, while claiming loudly to be “patriots,” I guess I’ll keep mentioning that they are being misled.]

1985 The Potala

1985 "Whose Dreams?"

 

 

 

 

 

 

 

Photo Notes:

Peasant: in beautiful countryside, I guessed he was carrying so proudly a photos of his father and mother, or his grandparents; but this was recently "rehabilitated" former President Li Shao-qi, I think, and the portrait we can't see may have been Ching Ling.  His pride in the portrait is clear.  His clothing was identical to 80% of the other citizens of China, except that the shirt also came in khaki; it was cheap clothing; but to the extent the government could ensure it, everyone was clothed, and housed, and fed.  Unlike more democratic countries where one might see dozens of beggars and then a fat, rich family driving by in a fancy car.  Despite horrible mistakes, the Chinese Government was trying.

The Potala: It's a beautiful building in a beautiful land.  It was both the seat of government and the palace the Dalai Lamas lived in, until the current Dalai Lhama, now a wonderful old man, fled from the Chinese as a 14-year-old boy, in March 1959.  In his bedroom I noticed a drinking cup that was a skull, a reminder of death's imminence.  ironically, this view was from near the toilet in the local hotel we stayed in.

"Whose Dreams" expresses more than I can put into words.  The bicyclist is Tibetan.  The Potala, though still  visited by devout pilgrims, is now sort of a tourist attraction for Chinese and foreigners.  Across the street from the sacred Potala are photo backdrops such as this one, which expresses a sort of Chinese paradise: sufficient wealth to own a TV, and a great view of the beautiful countryside near Guilin (not far from where I met that peasant) which is famous in China.  Tibetans were both resentful of the Chinese and, sometimes, envious of them.  They were angry, but impotent.  Whether this gentleman was envying the view of Guilin, disgusted by Chinese commercialization of the Dalai Lhama's home, or just taking a break was more than I could ask, since both of us spoke lousy Mandarin. 

 

 

Thoughts on Pretrial Release in New Mexico

In 2016, New Mexicans amended our unfortunate constitutional stance on pretrial release and bail.

Our bail provision was modeled after a colonial Pennsylvania constitution. Bail was important. An accused is presumed not guilty unless and until someone proves s/he is. Not so in China, Russia, Iran, or Belarus.

Bail is money deposited to ensure the court of your appearance at trial; but you must have money or property. Our system had two fatal flaws: rich folks could go home ‘til trial, while poor folks, though presumed not guilty, might stay in jail for months, unable to work, feed their families, or hug their kids. Meanwhile, some defendants who made bail robbed more stores or sexually abused more kids.

The 2016 amendment rendered financial status less crucial, and empowered judges to keep truly dangerous people in jail pending trial after a hearing. Prosecutors had to show “by clear and convincing evidence” that the person was a real danger. A 2018 case established that the hearing need not follow strict rules of evidence. Judges could rely on other reliable evidence.

Bernalillo County District Attorney Raúl Torrez, a 2022 candidate for NM Attorney-General, advocates making it easier for prosecutors to keep dangerous people off the streets. He’s seeking a law that in certain cases (such as murder, kidnapping, rape, sexual penetration of a minor, or new crimes committed while on pretrial release) there would be a “rebuttable presumption” that the defendant will stay in jail. Governor Michelle Lujan Grisham supports the proposal. Public defenders and civil libertarians don’t.

I have doubts that such legislation would be constitutional.

Presumption of innocence is a huge part of who we are, what our country stands for; and folks who’ve not experienced being “put in a cage,” as one attorney phrased it, underestimate the damage that does to a human being. When I said as much to Torrez, he differentiated between a cage and a jail cell. Certainly a jail cell is more humane, but either’s pretty grim, and can ruin your life and emotional health, or even trigger suicide.

Though some say Torrez is trying to make political capital, I take him at his word. He’s fighting an epidemic of gun violence; when he goes through the hard task of requesting a dangerous defendant be locked up, he loses more often than not; oddly, that’s even more likely if a gun is involved; and he’s seen a significant number of released defendants kill again.

Defense lawyers stress that the vast majority of pretrial releasees don’t get arrested again while out. (Torrez counters that many crimes never result in an arrest.) Defense lawyers say they get a high percentage of their defendants off, which undermines any prosecutor’s claim that s/he knows a given defendant is guilty and violent. (Sometimes, defendants win on police and/or prosecutorial errors, not innocence.)

One thing I know is that when you add a serious new duty to folks’ jobs, like showing, denying, or judging someone’s dangerousness, in court, without increasing everyone’s budgets accordingly, you invite problems.

With all due respect to Torrez and Lujan Grisham, I’m skeptical. I see the problem, but there should be a better way to harmonize individual constitutional rights with the community’s desire for safety. We must continue to improve pretrial services, even if that means little to committed criminals. Let’s also redouble our fight to keep kids from turning to crime, and provide real alternatives.

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[The above column appeared this morning, Sunday, 21 November 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[These are not easy questions. They are also not questions most people contemplate, and they involve a few terms some folks aren’t familiar with – such as a rebuttable presumption. In law, there are presumptions created by law. An example would be the presumption, which was once universal in U.S. states, that when a child is born to a married woman, her husband is the father. That made for some awkward law cases when the child had been sired by a lover, perhaps one the woman later left her husband to be with, but who couldn’t adopt the child unless the abandoned husband gave up his rights. More recently, looser mores and the feasibility of DNA-testing have been factors; but theoretically a state legislature could instruct courts (a) to presume (conclusively) that a child born in a lawful marriage is the son/daughter of the husband; (b) to presume so, but allow the other side to rebut the presumption by a bundle of persuasive evidence; or (c) to make no presumption at all. So “rebuttable presumption” just means start with that assumption, pending both sides’ presentations of evidence.

I’m not sure how that would work here, where state constitution says I have to show dangerousness by clear and convincing evidence. (For what it’s worth, we had a very interesting radio discussion of all this with Torrez, local chief public defender Kris Knudson, and Judge Conrad Perea. KTAL listeners found it instructive and accessible.)

What’s important, I think, is that while we can take very different positions on this issue, we respect both the law and each other’s views. I can’t say how having to do Raúl’s job for a month would change my views on how best to harmonize individual constitutional rights with community concern for safety.]