Guns

Inclusion in Texas Gang Membership Database Limits Gun Rights, Might Violate Due Process

An interesting federal court opinion.

|The Volokh Conspiracy |

From Apodaca-Fisk v. Allen, decided Monday by Judge Dadvid C. Guaderrama (W.D. Tex.):

The following facts derive from Plaintiff's [Complaint] and, in this posture, are taken as true.

Plaintiff is a former Army Command Sergeant Major who has served our country in eight combat deployments and has been recognized with numerous combat and service awards, including: the Legion of Merit, two awards of the Purple Heart, and five awards of the Bronze Star for Valor. Plaintiff is now retired and living in Las Cruces, New Mexico with his wife, a schoolteacher with whom he had his four children: a schoolteacher, two college students, and a PhD candidate at an Ivy League university.

Although retired, Plaintiff continues to actively serve his community in a variety of ways, including: serving as the Senior Board Advisor for Mesilla Valley Community of Hope helping the homeless, serving as Co-Chair of Willie's Heroes Community Foundation for Wounded Warriors, serving as a member of the Las Cruces Mayor's Veteran Advisory Board, serving as Vice President of the Dona Ana County Humane Society, and as a board member of the Order of Purple Heart and National Association of Amputees. Plaintiff has also been recognized for his involvement in the community: he was awarded the Red Cross Regional Hero Award in 2016 for his work in raising more than $500,000 for Las Cruces veterans with various organizations.

Plaintiff is also an active member of a motorcycle club named the "Squad Veteran Riders Motorcycle Club," in which he currently serves as President. The Squad Veteran Riders Motorcycle Club is a motorcycle club that is involved in community, charitable, and political activities.  All of its members are military veterans.  Plaintiff is also a board member of the National Council of Clubs and the Chair for the Southern New Mexico Council of Clubs….

Plaintiff alleges that Defendants improperly included him into Texas's law enforcement statewide gang database ("TXGANG").

The TXGANG database is a statewide repository of records related to criminal street gangs and gang members. Texas Code of Criminal Procedure 67.054 sets forth the submission criteria that Texas law enforcement uses to determine who can be classified as a criminal street gang member in the database. Under article 67.054, law enforcement can designate an individual as a criminal street gang member if: (1) a court judgment exists in which the court found that the individual committed a crime as a member of a criminal street gang; (2) an admission in a judicial proceeding exists in which the person admits to being in a criminal street gang; or (3) law enforcement observe two of the following:

"I. a self-admission by the individual of criminal street gang membership that is not made during a judicial proceeding, including the use of the Internet or other electronic format or medium to post photographs or other documentation identifying the individual as a member of a criminal street gang;

"II. an identification of the individual as a criminal street gang member by a reliable informant or other individual;

"III. a corroborated identification of the individual as a criminal street gang member by an informant or other individual of unknown reliability;

"IV. evidence that the individual frequents a documented area of a criminal street gang and associates with known criminal street gang members;

"V. evidence that the individual uses, in more than an incidental manner, criminal street gang dress, hand signals, tattoos, or symbols, including expressions of letters, numbers, words, or marks, regardless of how or the means by which the symbols are displayed, that are associated with a criminal street gang that operates in an area frequented by the individual;

"VI. evidence that the individual has been arrested or taken into custody with known criminal street gang members for an offense or conduct consistent with criminal street gang activity; among other criteria.

"VII. evidence that the individual has visited a known criminal street gang member, other than a family member of the individual, while the gang member is confined in or committed to a penal institution; or

"VII. evidence of the individual's use of technology, including the Internet, to recruit new criminal street gang members."

{Article 67.054(c) states that "[e]vidence described by Subsections (b)(2)(C)(iv) and (vii) is not sufficient to create the eligibility of a person's information to be included in an intelligence database described by this chapter unless the evidence is combined with information described by another subparagraph of Subsection (b)(2)(C)."}

Federal, state, and local law enforcement agencies have access to the database. Once an individual has been designated as a criminal street gang member, the Texas Department of Public Safety's ("DPS") computerized criminal history records will show that the individual is considered a gang member by law enforcement.

On information and belief, Plaintiff alleges that EPPD included him in the TXGANG database in 2017. On or about August 2017, Plaintiff attended another motorcyclist's funeral at a Catholic church in El Paso, Texas. Law enforcement heavily surveilled the funeral and took almost 4,000 photographs of the funeral's attendees and motorcycles, despite the fact that the Catholic church and cemetery are not documented areas of criminal street gang activity. After hearing in 2019 that other motorcyclists that attended the funeral had been included in the TXGANG database, Plaintiff contacted DPS and asked if his name was in it. DPS informed Plaintiff that his information was in fact in the TXGANG database and that the EPPD had input him into the database….

[T]he Court concludes that … Plaintiff … has properly [alleged an injury] in his "stigma-plus" claim under the Fourteenth Amendment's Due Process Clause….

"[D]amage to an individual's reputation as a result of defamatory statements made by a state actor, accompanied by an infringement of some other interest, is actionable under § 1983." … "… [A] section 1983 [plaintiff] [must] show a stigma plus an infringement of some other interest." …

Regarding the "stigma" prong of the "stigma-plus" test, drawing all inferences in favor of Plaintiff, the Court concludes that he satisfies it because he pleaded a plausible concrete, false factual representation or assertion by Defendants. Plaintiff pleaded that, despite the fact that he "is not now, nor has he ever been, a member of a criminal street gang," that he is actively serving his community, and that he has never been arrested or had any kind of encounters with Texas law enforcement, Defendants still inputted him into the TXGANG database and labeled him a gang member. "There is no question that being labeled a gang member harms one's reputation." Being labeled a gang member in a law enforcement database carries with it a stigma that is tied with "a host of unfortunate implications such as involvement in criminal conduct." Thus, accepting as true all material allegations of the Complaint, Plaintiff pleaded a concrete, false factual representation or assertion, by Defendants, of wrongdoing on his part….

For the "infringement" portion, Plaintiff pleaded that "[t]he stigma of being in the gang database … affects his Second Amendment right to carry a handgun in his vehicle[.]" Specifically, Plaintiff pleaded that his inclusion in the TXGANG database burdens his right to carry because—despite his valid license to carry—he now fears prosecution under the Texas Penal Code if he carries a firearm in his vehicle during his regular trips to El Paso for veteran services and his occasional flights from the airport. Further, Plaintiff pleaded that Defendants labeled him a "criminal street gang member" in the database and deprived him of his right to carry without due process because he was not afforded notice or opportunity to be heard "to challenge the inclusion before or after it was made." Construing the Complaint in favor of Plaintiff, the Court is of the view that Plaintiff has pleaded enough facts to establish that Defendants "sought to remove or significantly alter [his Second Amendment right to carry, as] recognized and protected by … one of the provisions of the Bill of Rights that has been 'incorporated.'" …

Texas law makes it categorically unlawful for "a member of a criminal street gang" to carry weapons in a vehicle, regardless of whether the gang member has a license to carry. The Texas Penal Code defines "criminal street gang" as "three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities." While the Texas Penal Code does not define what is "a member of a criminal street gang," the Operating Policies and Procedures of the TXGANG database provide that a "criminal street gang member" is "an individual who has been identified as a member of a gang through documentation consisting of at least two of the ID criteria listed under [Article 67.054(b)(2)(C)]." … "DPS does not require that an individual must have been arrested for the crime being investigated or any other cri me, before an authorized user can properly submit information to TXGANG identifying:… the individual as a gang member[.]" … This "criminal street gang member" identification—or label—in the database lasts for a period of at least five years, after which, law enforcement can either remove or extend it depending on whether the inputted individuals were arrested or taken into custody within that time period. To that end, drawing all inferences in favor of Plaintiff, it appears to the Court that individuals who have met the two criteria in Article 67.054 and are inputted to the TXGANG database as "criminal street gang members" can be arrested for unlawfully carrying a weapon in a vehicle for a period of at least five years….

In view of the ensuing legal implications from the "criminal street gang member" label, Plaintiff's allegations satisfy the "infringement" prong because they establish that his inclusion in the TXGANG database carries with it "a change of legal status" where he cannot legally carry a firearm in his vehicle during his regular trips to Fort Bliss and the airport in El Paso, which he could otherwise legally do in the past….

[C]onstruing the Complaint in Plaintiff's favor, his "stigma-plus" claim [also] presents an actual controversy because his allegations of future injury sufficiently establish that there is a substantial risk that harm will occur. In particular, Plaintiff pleaded enough facts demonstrating that (1) he intends to exercise his Second Amendment right to carry a firearm in his vehicle for self-defense during his regularly trips to El Paso; and (2) he faces a credible threat of prosecution under § 46.02 (a-l)(2)(C) of the Texas Penal Code for doing so….

"We have only heard one side of the story. After discovery is complete, the district court may well correctly determine that none of [Plaintiff's] claims can survive summary judgment. But at the motion to dismiss stage, we are bound to accept his allegations as true. And on the facts alleged, [Plaintiff] has stated several constitutional claims."

 

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  1. If only we had a constitutional amendment to protect our God-given rights from government infringement –
    If only we had a constitutional protection requiring due process on the part of governments –
    If only unicorns were real –

  2. Should be open and shut: You haven’t been convicted of something? You’ve got all your rights. There’s no other legitimate basis for depriving somebody of their rights!

    But the courts have a long track record of treating the 2nd amendment differently from all other constitutional rights.

    1. Not sure I’d limit it to conviction, but a court finding of incompetence as well.

      1. I’d limit it to conviction, or an adversarial court process with protections comparable to a felony trial. Otherwise declaring somebody “incompetent” just becomes a convenient work-around for effectively making them a felon without any chance to persuade a jury to acquit them.

        What’s the point in having a right to trial by jury, if the state can impose consequences comparable to conviction by some other route that doesn’t invoke that right?

        1. So….what about medical marijuana patients? Currently, under state law, medical marijuana is allowed. Perfectly legal. But if you register for MMP, and then apply for a gun permit – no can do. You get denied by the Feds.

          I wonder if a case is making its way through the legal system from an MMP participant on 2A gun rights. Perhaps we will see something in Short Circuit. I absolutely love the Friday Short Circuit pieces. It is one of my highlights for Friday evening. As I read the case summaries, I am reminded that truth is stranger than fiction.

          1. My personal stance is that all federal drug laws are unconstitutional anyway.

            1. Perhaps not all possible drug laws. It would seem to be within the scope of the Interstate Commerce clause for Congress to specify accurate labeling of meth that is sold across state lines and to prevent California from imposing a tariff on meth manufactured in Indiana and imported to California.

              1. I’m not sure it is still the case but recall the original Federal Law against Marijuana was a Tax which no one could pay because there was not way to pay it.

                1. Yes.

                  First they admitted they didn’t actually have the power to ban things.

                  Then they got the bright idea of taxing them heavily.

                  But, wait, some people are paying the tax, damn it!

                  Well, we’ll just refuse to let them pay it!

                  What we’re doing is the practical equivalent of a ban, so let’s just ban it. Why get hung up on technicalities?

                  By the reasoning that permitted the tax, refusing to accept payment would have rendered the tax an unconstitutional ban. But the courts just adjusted their reasoning. And by the time they got around to the flat out ban, the courts had gotten used to the practical equivalent of a ban, and didn’t blink at Congress saying it was banning something.

                  Drugs and guns followed the same trajectory, with the guns trailing behind a few years.

                  1. Firearms are protected by the second amendment.

                    Drugs have no such protection. The FDA was created generally due to drugs which were killing people (IE “Elixir Sulfanilamide” which killed over a hundred people).

                    If the current Constitution didn’t allow for regulation of such items, a Constitutional Amendment would have been quickly established which did.

        2. I like that idea in theory, but not really sure how it would work in practice.

          1. I expect it would work out fine in practice, because depriving somebody of their 2nd amendment rights does not, in practice, disarm them if they’re willing to break the law. So the law is generally only disarming people who wouldn’t have done anything wrong anyway.

            Given more procedural protections, they’d have to be more selective about who they disarmed. They don’t want to be more selective, because their goal is to disarm as many people as possible, not to reduce violence.

            1. Yeah, those %$## commies in Texas….

              1. Maybe you’ve never been to the Austin area….

                1. When I lived in Austin it was an educated, modern, tolerant, successful oasis in a flat, brown, ignorant, backward, bigoted land. Plus, the town had a nice pond they called a lake, hills they called mountains, a creek they called a river, and an excellent music-Tex Mex-barbecue scene.

                  1. Apparently after you departed a huge number of leftists moved in and the place has gone to the dogs. But the good news is that you are allowed to sleep on the street with them (except around city hall).

            2. There’s also the possibility that someone would be arrested for illegally having a gun they are legally entitled to have.
              Imagine a traffic stop:
              Officer asks if you have a weapon
              You say yes it’s locked in the trunk
              Officer gets a alert you on in Gang database
              Off to jail you go.

        3. Since when is it “convenient” to declare somebody incompetent?

          1. It’s more convenient that it should be, given the consequences.

            1. Out of morbid curiosity, just what problems do you see that make it “more convenient that [sic] it should be”?

              It’s not a quick easy process, and any bona fide competent person can easily put a stop to the whole thing. You have to basically be already under someone’s control for it to make any progress at all.

              So what’s your beef? Be specific.

              For that matter, do you actually have data on abuses of it? While I can find stuff on guardians abusing the person they’ve got guardianship of, I’m having a hard time finding cases where someone was declared incompetent that shouldn’t have been. The closest I found was a guy that was rightfully declared incompetent, but later improved.

              1. It was common in the 50s and 60s. Not sure about now.

                1. You mean the time period where the government regularly sterilized poor women without their knowledge and consent, states outlawed birth control, the children of Native Americans were basically stolen from reservations and given away to white parents to “Christianize” them, evil homophobic bastards thought you could cure gays by shocking them nearly to death, and “separate but equal” was an accepted part of life?

                  If we’re going back to that level of disregard for basic human rights, the ease of declaring someone legally incompetent is going to be the least of our problems.

        4. Incompetency has a hearing and so on, before institutionization.

          But not a guy saying, well, he was at a funeral as were guys from some other gang which are considered terrorists, so by the transitive property of math…

          1. Actually it would be more of a set theory group aggregation function but I don’t think the sheriff has written a paper on it.

    2. What rights has he lost, exactly? It doesn’t appear to me that inclusion in the database is enough to demonstrate that he’s a gang member for purposes of the carrying ban.

      1. The OP is clear that “Texas law makes it categorically unlawful for “a member of a criminal street gang” to carry weapons in a vehicle, regardless of whether the gang member has a license to carry.”

        So inclusion on the list loses him his right to carry weapons in a vehicle.

        1. I agree that the quoted language sort of implies that. I disagree that it clearly alleges that, presumably because that statement would not be true.

          The statute at issue, Texas Penal Code § 46.02(a-1)(2)(C), make it illegal to carry a gun if you are “a member of a criminal street gang, as defined by Section 71.01.”

          Texas Penal Code § 71.01(d), in turn, defines “criminal street gang” as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.” So to convict someone, the prosecution would need to prove that — not simply that you were in the database.

          1. That was my understand as well, after reading the OP + comments.

  3. BB: I’d suggest that the government has a long track record of treating motorcycle riders differently, not just regarding the 2nd Amendment. I understand the foundation, the early motorcycle clubs were Hell’s Angels, Mongols, etc. They were and are criminal gangs. The government, however, has decided that it is easier to classify anyone who wears a patch as a criminal gang. Veterans groups, riding clubs, etc. Our club is a 501c19 non-profit devoted to helping veterans. We have never engaged in any criminal activity and if one of our members did, it wouldn’t be under club auspices and we would deal with the fact of their membership as necessary. We have also been added to gang lists and had to work to get removed. It is pure laziness on the part of law enforcement to avoid doing any actual research.

    1. I had a motorcycle most of my life, and I agree that the vast majority of burly bearded leather wearing guys on Harley’s are the nicest people you’d ever want to meet.

      My googling for large biker funerals at Catholic churches in El Paso during August 2017 fond a funeral for the deceased president of the Bandidos. Would you, or most members of your club, attend that particular funeral, and if so, why?

      It just strikes me that the ‘nice’ bikers I know wouldn’t have anything to do with the Bandidos, Mongols, Hells Angels, etc.

      (FWIW, I’m also in the ‘have a trial before restricting rights’ camp.)

      1. IIUC it’s a little more complex then that especially when it comes to the patches/colors. The 1%er Motorcycle clubs have shown respect to several motorcycle clubs like veterans and allow them to wear patches/colors without having issues with the 1%ers like Bandidos, Mongols, et. al. who jealously guard their “territory.”

        1. If the relevant funeral was that of a Bandidos leader, this isn’t complex.

          1. Maybe. Or maybe not. If, say, the Banditos leader was also a vet, then I can see a fellow veteran deciding that the deceased’s vet status trumps any possible bad deeds post-service, and that same fellow vet feeling obligated or motivated to attend the funeral and honor that past military service.

            I’d need to know more facts to figure out what the guy’s actual motivation to attend was.

    2. Without disagreeing with your larger point, your history is not quite correct. The earliest motorcycle clubs were a response to the reactions that motorcyclists received in small, provincial towns. Strangers have always been viewed negatively but these strangers were also dirty, had little luggage and traveled alone. All those are natural consequences of riding a motorcycle but logic does little against prejudices. Bikers also tend to be young and more ready than average to flout social conventions. The result was that travelers were regularly cheated or beaten by locals, too often including the local police.

      The earliest motorcycle clubs were a form of mutual aid society. “Pick on one biker and you pick on us all.” Of course, since those groups were opposing the local interests, they were quickly labeled as criminal gangs. And once treated as a criminal gang, it is easier for the group to actually become a criminal gang. It has become a self-fulfilling prophecy.

    3. “…the early motorcycle clubs were Hell’s Angels, Mongols…”

      Actually, the early motorcycle clubs were groups of riders who had club uniforms, obeyed the law, and caused no trouble. The Angels, etc., identify themselves as “1%ers” because they see themselves as the antithesis of the good 99%.

    4. Outlaw motorcycle gangs call themselves “one percenters” for a a reason: 99 percent of motorcycle clubs and members are not criminals.

  4. Hey, didn’t Reason just have another article about abuse of gang lists.

  5. I think this is more complicated than either side is letting on.

    I agree that most motorcycle gangs are not criminal enterprises, and the state should not be permitted to confiscate guns from their members. However, there are some gangs that are criminal enterprises, as anyone who lives in South Central Los Angeles or the South Side of Chicago can attest. I’m perfectly fine with depriving their members of firearms.

    I would require the following:

    The government must prove that the gang in question is a criminal enterprise, similar to a RICO analysis.

    The government must prove that the individual whose guns are being confiscated is associated with the criminal enterprise.

    There must be a full adversarial hearing at which the individual’s due process rights are fully protected.

    Upon a finding that an individual should lose his guns, he may petition for reconsideration upon a showing of rehabilitation or changed circumstances.

    1. The problem is, that’s like saying the issues around segregated drinking fountains could have been resolved by making the fountains identical. Couldn’t work, because everybody who wanted separate was opposed to equal.

      Similarly, you can suggest ways in which gun control proposals could be altered to respect constitutional rights, but you quickly run into the reality that basically everybody supporting gun control WANTS constitutional rights to be violated.

      1. I’m not sure the motivation is relevant; a law is either constitutional, and good public policy, or it is not, whether its proponents have the best of intentions or the worst of them.

        And not everyone agrees with you about the boundaries of constitutional rights. Does the Second Amendment protect private ownership of atomic bombs, or the ingredients necessary to make them? If you say yes, you’re an idiot and have a nice day. If not, then you’ve agreed with me that at least some lines are proper, and we simply disagree over where those lines should be drawn. And by the way, victims and prospective victims of gun violence have rights too; the Second Amendment does not exist in a vacuum.

        For the record, I generally support the right to private ownership and carriage of firearms, but not absolutely. Living in society means that there will always be rights in conflict, and nobody ever gets everything they want.

        1. Right, the old, “If you concede that atomic bombs can be regulated, you have to admit that it’s ok for me to stomp all over your 2nd amendment rights!” line.

          Sure, there’s a line. It’s the other side of hand held firearms. The 2nd amendment guarantees the right to, in Tenche Coxe’s words, “every terrible implement of the soldier”. Wake me when the US army starts issuing recruits atomic bombs as they graduate basic training.

          1. Coxe is entitled to his opinion as to where that line is to be drawn, as are you and I. But he doesn’t help your argument, because the soldiers do, collectively, have atomic bombs in their arsenal. If I need a large magazine military grade weapon to defend myself against Obamacare, then why shouldn’t I also have an atomic bomb to really level the playing field between me and big bad gummint?

            And please stop pretending that anyone who doesn’t share your bizarre constitutional interpretations is stomping all over it. I don’t agree that large magazines are protected by the Second Amendment. As between us, that’s an honest disagreement over what it means, and is not a case of you respect it and I stomp all over it.

            1. While you may think Brett’s interpretations are bizarre, they are, in fact, held by a sizable number of people in this country, who in many jurisdictions constitute the demographic and political majority, which in turn informs the laws in those places.

              1. A sizable number of people believe in young earth creationism. It’s still a bizarre world view.

                1. Reductio ad absurdum, again, just like the atomic bomb argument you made. Further, bringing up creationism is a non-sequitur because we are talking about gun regulations, not, say, what is taught in public schools.

                  You may think it’s bizarre, but I assure you, the people who wrote the Constitution did not. Furthermore, depending on where you draw the line and how you ask the question, polling data will say that you are actually in the minority opinion on gun laws/regulation.

            2. ” If I need a large magazine military grade weapon to defend myself against Obamacare, then why shouldn’t I also have an atomic bomb to really level the playing field between me and big bad gummint?”

              I thought we were discussing what you had a constitutional right to, not what you “needed”. Rights are NEVER about what you “need”, the whole point of rights is that you’re making the decision based on what you want, not somebody else allowing you something because they agree you “need” it.

              The military rifle or pistol is constitutionally protected, because it is the “arms” the 2nd amendment refers to. The nukes aren’t, because they aren’t what it refers to.

              1. Now do cannons. Those were in common use in 1789. Heck, privately owned warships were fine and dandy.

                Now how ’bout mounting weapons on vehicles? If the constitution protects your rights to rifles, why not a fully automatic rifle mounted in the back of a pick-up truck? Or in the cone of a crop-duster?

                To be clear, I’m not trying to actually argue that any given arrangement should be illegal, but I’m curious how far your interpretation goes.

                1. Sure, the 2nd Amendment says “keep and bear” and if you can’t carry it, it’s not an “arm”. That would be a cannon, or a mounted crew served weapon. It’s debatable, for instance, if an RPG or Manpad is an “arm” or ordinance, the latter of which wouldn’t be protected.

                  1. I… see.

                    Well, I said I wasn’t going to try to argue, so I’m going to bite my tongue, so I’ll say no more.

    2. At which point, Krychek, you have an individualized finding and no need of a “gang” database.

      That said, RICO is one of the most abused statutes on the books. Merely being “associated” with a criminal exercise ought not to deprive you of any rights. That’s too vague a term.

      1. Rossami, I agree with you that RICO is overused and the definition of criminal enterprise may need tightening up. We might also need to tighten up the definition of “associated”.

        However, once those definitions have been tightened, suppose you have a street gang whose purpose is to engage in violent crime and terrorize the neighborhood. I am in favor of doing whatever can be done to shut them down. That would certainly include criminally prosecuting their members, but I don’t see an argument against also making it costly to do business with them. If you want to keep your guns (or have a business license or a driver’s license or get government benefits), well, maybe you shouldn’t have anything to do with organized gangs. The cost of making it easier for violent gangs to operate ought to be pretty high.

        1. Uhh, keeping guns is not a privilege. You can’t “make it costly.” You are wholesale violating Constitutional rights. Are you okay with taking away abortion and gay anal sex rights away from people who do business with gang bangers?

          1. It’s difficult for me to imagine an actual situation likely to occur in the real world in which it would come to the attention of the government that someone who does business with gang bangers is having an abortion or engaging in gay sex. But if such a situation did arise, my anti-gang sanctions are either directed toward public safety (taking guns away from gang bangers and their allies) or making it more costly economically to do business with gangbangers. I don’t see that abortion or gay sex goes to either of those.

            And no, keeping guns isn’t a privilege, but no right is absolute. Your free speech rights don’t include the right to shout through a bullhorn under my bedroom window at midnight, and your Second Amendment rights don’t include the right to possess firearms if you’re associating with people likely to use them for violent purposes. Other people have rights too.

            1. “Public safety” doesn’t override Constitutnola rights. And it’s silly to pretend that no other rights, like those in the 4th, 5th, 6th, and 8th Amendments, have any public safety implications.

              Your free speech example is terrible, as there, it’s not the speech that is regulated, but the TPM.

              1. Public safety *sometimes* overrides Constitutional rights if the stakes are high enough. The Constitution is not a suicide pact. The Fourth Amendment, for example, can be overriden by exigent circumstances.

                And banning large magazines is a type of TPM restriction since it bans a type of firearm, not all of them. Just as certain types of speech — like child porn, or threats — may be banned under the First Amendment because of the damage they do. Bottom line, it depends on how high the stakes are. No constitutional right exists independent of other rights, or independent of the real world.

                1. “The Constitution is not a suicide pact.”

                  When people say that, what they really mean is, “The Constitution IS a suicide pact, and so we should break it!”

                  Well, no, the Constitution isn’t a suicide pact, and by that I mean, following it would not be suicidal.

                  ” Just as certain types of speech — like child porn, or threats — may be banned under the First Amendment because of the damage they do.”

                  What damage does a large magazine do, just sitting there? None. I’ve got 100 round magazines in my closet. They’ve been there for years, and they haven’t so much as jaywalked.

                  And that’s setting aside that, as soon as you agree that “large” magazines can be banned, the size that’s considered “large” starts dropping like a rock. What’s large down to in California these days? 7?

                  1. What damage does a large magazine do, just sitting there?

                    Brett, you have to at least engage arguments. You know what the argument is. You may not like it, but you absolutely know what the argument is.

                    The argument is that in mass shooting situations, large magazines can increase the deadliness of the situation. That’s the argument. And dangerousness is a legitimate consideration in Second Amendment cases. Obviously, no serious thinker thinks there is a Second Amendment right to keep and bear a Davy Crockett nuclear weapon. Heller says dangerousness can be considered.

                    1. Heller’s dicta, not it’s holding, says that dangerous an unusual weapons shouldn’t be looked at with this decision…which every gun banner took as carte blache license ban away anything that wasn’t specifically covered in Heller, which was just handguns.

                      That said, the first “high capacity” gun magazines go back to the start of the 20th century with the Browning “Hi-Power” which could hold 13 rounds of 9mm. Most handguns have magazines that hold more than 10 rounds, unless they are 1) an archaic design on purpose or 2) designed for concealment.

                      There are 400 million guns in the U.S., and bet 25% of them (I looked up estimates at one point) are handguns that hold more than 10 rounds in the magazine. Seeing as Heller *specifically* protected “arms in common use” I would say it’s a mighty silly argument to say high capacty gun magazines are unconstitutional. The problem, SCOTUS is absent.

                    2. “The argument is that in mass shooting situations, large magazines can increase the deadliness of the situation. That’s the argument.”

                      Well, then, it’s a stupid argument. You’ve got an item involved in a constitutionally protected activity, which is lawfully used without harm to anybody hundreds or thousands of times more often than any illegal use. You’re infringing the rights of a huge number of people for every criminal you merely inconvenience.

                      That’s not how you treat rights, but the gun control movement is never willing to treat the right to keep and bear arms as a real right.

                    3. Brett, it’s not a stupid agrument, because (1) the Supreme Court says it’s a legitimate consideration, and (2) it isn’t a matter of how high capacity magazines are used, but whether restrictions would impair the right.

                      Because that’s how rights work. Minor impositions require less justification. We do this in the First Amendment with the time place or manner doctrine.

                      Exactly what are high capacity magazines NECESSARY for? Not what are they used for- what are they necessary for? If someone hunts with a high capacity magazine but can equally effectively hunt with a lower capacity magazine, that’s not a significant injury. The balancing is between the dangerousness of high capacity magazines in edge cases like mass shooters, against the situations where a high capacity magazine is necessary.

                      And that is a difficult argument to resolve. Saying the courts shouldn’t resolve it is just a punt, and is not consistent with current doctrine.

          2. You’re okay with taking away sodomy and abortion from everyone, so I’m not sure how this question can be considered a good-faith one.

            1. No, but I do think we should have “reasonable” and “common sense” restrictions on single women and gay men.

        2. ” If you want to keep your guns (or have a business license or a driver’s license or get government benefits), well, maybe you shouldn’t have anything to do with organized gangs.”

          Any worries that Alabama (or Texas!) might have once considered the Deacons of Defense or NAACP a criminal gang?

          The 2nd was at least some defense against that. I recall reading a story once where a young northern college student activist goes down to stay with a black family. They get word that the Sheriff pulled Grandpa over and confiscated the shotgun Gramps had because of KKK threats. The college kid is waxing eloquent about how that’s an outrage, bill of rights, etc, when they notice Gramps is missing. It turns out he’s driving into town to share his new knowledge about the 2nd amendment with the sheriff. College kid is horrified his pontificating is going to get Gramps killed, so they all set off to try and catch Gramps. They meet Gramps coming home – with the shotgun. It seems like that upon reflection, the Sheriff agreed the 2nd prevented him from arbitrarily seizing guns. Letting those Jim Crow sheriffs make up gang lists of undesirables arbitrarily is not without downsides.

          1. Except I wouldn’t allow arbitrary enforcement. I would require clear, well defined definitions of what is, and is not, a criminal enterprise. And it would pretty much be limited to groups whose entire reason for existence is to commit violent crimes.

            1. “limited to groups whose entire reason for existence is to commit violent crimes.”

              So there are no large groups that would fall under that?

              Ethnic mafias were established to ensure the survival of their ethnic customs and most of them provide at least some legal services, often bodyguard, alongside their criminal activities. Many of their services are also not violent: gambling, counterfeiting, and smuggling are usually under their purview. The Triads have their origins in the protection of religious minorities in China and the Yakuza was a fusion of illegal and merely sleazy merchant groups. Both have utterly innocuous activities: the Yakuza likes to celebrate Halloween in a fairly traditional American way, oddly enough, giving out candy to kids while the Triads often help with charity efforts in their community.

              Urban ethnic gangs have their genesis in needing protection from cops, criminals, and white racists and in ensuring opportunities and a community for members of their ethnicity, so their entire existence is also not for committing violent crimes. White supremacist gangs are driven by espousing white supremacy. while tongs came from the need for protection in non-Chinese communities. Even MS-13, probably the most violent US gang, came from El Salvadorans in LA seeking protection from other gangs.

              Motorcycle gangs, even the violent ones, are really just for the hobby, and were initially intended as protection.

              The only groups that may fall under your definition are individual cells of larger groups, terrorist cells like ELF (even then, their existence isn’t “to commit violent crimes” but to spread their ideas), and small non-organized gangs, which kinda defeats the point of having the definition.

            2. “I would require clear, well defined definitions of what is, and is not, a criminal enterprise. ”

              Just to be clear, what is your view of the chances that, say, Bull Connor would decide that the Deacons of Defense met whatever definition you came up with?

              Heck, if MLK is coming to town to participate in lunch counter sit-ins, by definition he intends to commit the crime of trespassing.

              You can find similar examples farther back, in the early 1900’s union fights. Sheriffs seemed to like the Pinkertons a lot more than the strikers. Can you explain why you think sheriffs will always be on the ‘right’ side of the conflict?

              1. Sheriffs won’t be the ones making the call. Judges will, based on a rigorous and well drafted definition of criminal enterprise that won’t include lunch counter sit ins and the Deacons of Defense.

          2. The Black Power movement in general and much of the black part of the Civil Rights Movement were staunch advocates of the 2A because they knew they were targeted, either by white supremacists or rival groups. There’s a rather famous picture of Malcolm X holding a rifle at the window, watching for NoI thugs. The picture itself was staged but the underlying reality wasn’t.

        3. There remain several flaws in your logic. One is the assumption that the street gang, or in fact any group, has a single, unitary goal. Part of the way even the Mafia maintained local support was by opposing discrimination and providing social assistance to those who could not get it from the then-established charities and institutions. Modern street gangs often (though not always) serve similar functions within their own communities. Biologically, the analogy would be not parasites but symbiotes.

          So consider the pastor who chooses to work with the street gang to distribute food, provide shelter and even attempts to rehabilitate the gang members. Even by your tightened definitions, he is “associating” with the gang and will lose his rights. Yet he is doing everything that we would want a good citizen to do (short of maybe becoming a police information, a step which however laudable may not be made compulsory).

          Second, we agree that the designation of “criminal enterprise” is far too loose. You say that it should be tightened up. I do not believe that is or ever will be possible. The incentives for abuse are too high and history is replete with examples of even the best intentioned and most moral players breaking down. Consider that even the Templars, a charitable religious order, were demonized and broken by their own church leaders using just such tactics. Maybe I am being excessively pessimistic today but I do not believe we have changed human nature one iota in the almost-millennia since.

        4. “Having something to do with” is way too broad. You can’t sell the food? You can’t employ them? Members of such gangs can’t join your gym?

          You’re talking about taking away somebody’s civil liberties, it better be because they, themselves, committed a serious crime, and you proved it in a court of law while allowing them the right of trial by jury and a presumption of innocence.

          Not because they “had something to do with” somebody you don’t like.

          1. I’m going to go out on a limb and say that yeah, you probably shouldn’t employ someone you know is a gang member.

            Not as a legal requirement, mind you, just good advice.

            1. Right, because they should be denied any employment opportunities out side of the commission of crime?

              1. Snarky answer the first: Brett, please remind me… what’s your position on ENDA again? For that matter, how do you feel about non-discrimination in hiring laws in general? Or hey, “ban the box”, right?

                Snarky answer the second: That’s Freedom of Association for you, buddy. Sometimes folks judge you for your non-criminal activity.

                Serious answer: Just what do you think a “gang member” does? To be clear, I’m not interested in the hewing and hawing over a court definition that may be flawed. I’m talking about you, in the role of a hiring manager for some place that you work at, looking at a guy and his associates and saying “holy fuck, this is a bona fide gangster”.

          2. Please show me where I said “had something to do with” should be the standard.

        5. Actually, I strongly suspect that I could suggest quite a few “whatevers” that you would not be in favor of (starting with burning down a city block, a la Philly vs MOVE.)

    3. How is that different from the Texas statute?

    4. What does “associated” mean? Being married to a gang banger? Getting lunch with a high school buddy who happens to be in a criminal gang now? Being a lawyer providing representation to a gang member?

      1. Writing a newspaper article on a gang member? Being a Sociologist studying gang members? Being a pastor who preaches to gang members?

        1. What does “conspiracy” mean? Being married to a conspirator? Having lunch with a high school buddy who is a conspirator? Being a sociologist who studies conspiracies? C’mon guys, the fact that you have to stretch so far and come up with such silly examples is a pretty good argument that you don’t have a good argument.

          1. Yeah, you think you’re making a point, but for anybody who’s familiar with the way “conspiracy” law is abused, it’s the opposite from the one you want to make.

          2. The USFG rejected a woman’s application for asylum two years ago because she “provided material support” to a terrorist group. This “material support” came after she was enslaved by them and they forced her to cook and clean for them. Why wouldn’t they expand the definition of conspiracy given the chance and impetus?

            1. At this point I’ve got about four people arguing with me, so rather than go point by point, let me just say what I consider the central flaw in all of your arguments.

              Your arguments are all some version or other of we can’t have such a law because it might be abused. Well, if that is the standard, then we can’t have any laws at all because any law is subject to abuse. We can’t have traffic laws because the police will use them for racial profiling. We can’t build public highways because some terrorist might use them to transport a bomb. We can’t have a criminal justice system because racist police and prosecutors will use it to incarcerate innocent blacks. Etc.

              And what this is really about is a simple antipathy on your part to the very idea of governance. Admit it.

              But the standard is not whether a law might be subject to abuse; it’s whether we’re better off with it than we would be without it, and whether sufficient safeguards can be put in place to minimize the risk of abuse. So you carefully define both “criminal enterprise” and “associate with” so that it only reaches organized violent crime and other worst of the worst entities, and those who make it easier for them to do their work. You install ample procedural safeguards. And you have checks and balances on the process. Will that reduce the risk of unjust results to zero? No. But it will save lives by making it harder for gang bangers to operate, and disincentivize doing business with gang bangers.

              And sometimes that’s the best one can do.

              1. No, our argument is not “we can’t have such a law because it might be abused”. Our argument is that “we shouldn’t have that law because between the (high) likelihood of abuse and the (high) consequences of abuse, the costs vastly outweigh the theoretical benefits”. None of your proposed tweaks or adjustments appear at all practical at changing that balance. You want to “carefully define” the necessary elements of the crime while continuing to ignore the many prior failed attempts to do the same thing.

                1. For example, we already have a robust process for determining that people should lose their gun (and many other) rights. It’s called ‘convict them of a felony’. That has the advantage of only penalizing those who have actually done something, vs. the ‘pre-crime’ aspect of penalizing people for what they might do at some time in the future.

                  (to be sure, no everyone agrees with restricting the gun rights of felons who have completed their sentences. I’m not one of those people, but I suspect that even people who feel that way – Brett, IIRC – would think that pre-conviction restrictions are worse than post-conviction ones, even if they object to both.)

                  1. Actually, I’m one of those people who thinks it’s pointless and counterproductive to deprive felons who have completed their sentences of the right to keep and bear arms.

                    Pointless, because if they mean to use a gun for crime, they’ll have no trouble obtaining one illegally.

                    Counterproductive because pretending to deprive them of guns requires maintaining a system of second class citizenship for a substantial fraction of the population, the maintenance of which system provides a pretext for infringing the rights of the innocent.

                    I think that, once you’ve served your sentence you should be restored ALL rights. No second class citizens!

  6. I’m annoyed by the use of the word ‘inputted”, what ever happened to the equally accurate and less jarring entered? I have a similar reaction to “forcasted” and “architected”.

    1. Two women were sitting in the doctor’s waiting room. One said to the other, “Are you here to be X-rated?” The other responded, “Nope, I’m here to be ultra violated.”

        1. I won’t ask if you enjoyed yourself.

          1. God, no. You’d have to be a lot more twisted than me to enjoy having a nail gun shoved up your rear and fired repeatedly. And, did they really have to do it in a hallway with people walking by? That was just adding insult to injury.

  7. I don’t think this problem is limited to Second Amendment situations. The No Fly List is a constitutional abomination, and is based on the same sort of lousy evidence.

    I am probably more liberal than some folks here about when Second Amendment rights can be overridden, but it seems to me you need some sort of real proof presented in a real proceeding with real due process rights, especially where we are not talking about an emergency situation.

  8. The plaintiff will eventually need more than his bare assertion and copies of laws on the books to verify his bare assertion that being in this database creates an actual imminent likelihood of prosecution for the conduct he claims it does

    But perhaps he will be able to prove it.

    1. I think that his inability to legally carry a properly secured firearm in his vehicle when crossing into Texas to, for example, fly, or to attend funerals would be considered sufficient harm.

      1. It’s a matter of enforcement.

        Regardless of what the law says, if Texas isn’t actually enforcing it then the court is likely to throw it out because it’s him saying “Texas will do X” and Texas saying “brah, we haven’t done X and we ain’t gonna do X”.

        So it’ll probably come down to whether or not Texas uses the database as he claims they do. In many cases speculative harm isn’t sufficient if the odds are against you that the speculative harm will be realized.

        1. I’m not sure just saying “brah, we haven’t done X and we ain’t gonna do X”. means that much, if your state’s law SAYS you’re gonna do X. It’s not exactly a legally enforceable commitment across the board.

          1. Well yeah, that’s why there was a third paragraph. What they’re actually doing matters.

            1. What they’re actually doing can change as soon as somebody in an enforcement position wants it to change.

              1. Sure.

                And sometimes courts say “well, it’s moot now” and toss a case.

        2. I don’t know if Texas does this with their gang database, but many LEO databases are shared with other states. Even if Texas doesn’t enforce the specific statute (I bet they do since they took the time to enter in members from an apparently benign club, if only for sentence enhancement) another state they share it with might enforce a similar statute.

          In a separate case after the FBI added Juggalos to their gang database, the ICP members and Juggalos who sued were found to have perhaps suffered “reputational and personal harms” as a “practical consequence” but not as a “legal consequence”, though the rejection was based on the fact that the FBI hadn’t necessarily made an actual rule on Juggalos being included and not on the fact that they didn’t suffer harm, so perhaps he does have a case. Not necessarily a great one since it went the other way, but it’s there.

          1. I’m not saying he does or doesn’t have a case, as I’m just not that invested in this case.

            My point was that even if you have a de facto unconstitutional law, you still might lack standing to challenge it if it isn’t being enforced.

            It’s like those periodic lists you see about stupid/silly laws that are still on the books and technically enforceable. You can’t just go down the list and sue the state to strike them down because if they aren’t being used, you don’t have standing, even if you would have standing if they were used.

            That said, in the hypothetical where Texas isn’t doing anything to infringe his rights (even though they put him on the list), but Oklahoma is infringing his rights based on Texas’s list, I don’t think he’d be able to sue Texas as the fault is with Oklahoma.

            1. I know how standing works here, but the Juggalo case indicates that he might have standing just for “personal” or “reputational” (what a word) harms so long as he can prove it was a legal consequence. He has a better shot than the Juggalos did, since the database implies legal decisions, but I still don’t think it’s looking up for him. From that, I think he may have standing even if another state was the one enforcing a similar statute. It wouldn’t be Oklahoma’s fault if Texas screwed that up. I’m sure there are similar cases with other lists but hell if I’m going to care enough to look that up.

        3. But he has to get to court to get it thrown out. That would involve a arrest, possible impoundment of his vehicle and lots of other avoidable unpleasantness.

          1. That’d fall under “Texas uses the database as he claims they do.”

    2. Let me add that the statute barring him from traveling in TX with a properly secured firearm speaks for itself. He is apparently on the list, had no due process in getting placed on the list, and that membership on the list creates a legal disability, should be sufficient to prove his case.

  9. Some may recall the 2015 Waco biker shootout that left 9 people dead at the Twin Peaks diner. One of the deceased was a member of the Bandidos MC, six were members of the much smaller Cossacks MC. Of the 150+ indicted individuals, only one ever went to trial, Jake Carrizal, a Bandido leader. His case ended in a mistrial when the jury could not reach a verdict.

    The plaintiff in this case, William Apodaca-Fisk, was a defense witness in the Carrizal trial. He testified that the Bandidos were not a criminal gang and that a “one-percenter” was merely a “professional motorcycle rider”.

    1. If that is true, this guy is a loser whose bragging about his upright-citizen credentials is pathetic . . . but the clingers will still cling to him, ’cause clingers gotta cling (to gun, religion, stale intolerance, and the white way of life).

      1. The white way of life? Would you mind contrasting that, say, with the black way of life, or the brown way of life, so we can see the differences?

      2. As one might surmise from the name, the “Bandidos” aren’t particularly “white”. Hispanics make up a large portion, if not the majority of the MC. They also have ties to Mexican drug cartels.

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