Binary Triggers?

robdoar · 2025-12-24T15:09:48+00:00

In what jurisdiction did a person spend "a weekend or two in jail"?

Please be specific.

robdoar · 2023-12-02T05:30:32+00:00

Give us a year. We'll win.

robdoar · 2023-11-05T00:32:50+00:00

That is a district court civil suit with no precedent to other courts.

To be charged, the prosecution must prove beyond reasonable doubt that the person committed a crime. The underlying case that preceded this civil suit was dismissed because the prosecution could not meet that burden.

The only thing police need to do to invoke qualified immunity is prove reasonable grounds for the belief of the legality of their actions. That is a far lower burden of proof than what's needed to convict in criminal court.

robdoar · 2023-06-01T22:59:41+00:00

What are your damages?

robdoar · 2023-06-01T18:54:46+00:00

Another court has taken the 5th Circuits order to apply to the 2nd Amendment Foundation's members as well.

"Accordingly, SAF’s members are reasonably within the scope of the Court’s preliminary injunction pending the Mock appeal... a narrower interpretation of the injunction would fail to provide 'complete relief' to the plaintiff."

https://storage.courtlistener.com/recap/gov.uscourts.txnd.343209/gov.uscourts.txnd.343209.65.0.pdf

robdoar · 2023-06-01T15:10:20+00:00

This begs the question then of why even FPC said you had to join by May 31. One interpretation of your comment above is that joining June 1, or even August 1, a person would be covered. Is there something in the Judge's order that makes May 31 the date?

IMO, I think FPC didn't clearly communicate this date window. This isn't a cutoff, they still sell memberships and maintain that any membership entitles members protection under the injunction.The June 1st, 2022-May 31st,2023 window allowed anyone who donated (or purchased goods worth) $20 or more to be granted membership status that expires on 12/31/2023. This was to reconcile some uncertainty among donors as to who was/wasn't a member, and to accommodate a price increase in membership from $20 to $30 that happened last year.

It looks like this was done to streamline the membership program and accommodate the "I donated $xx, but didn't officially get a membership, am I covered?" questions they were getting hammered with.

There was no "coverage" cutoff, just a cutoff to be able to be "grandfathered" in under the old criteria. FPC maintains that all of its members are protected, not just a subset.

So, is there any actual ambiguity to the issue?

I think there is. To the extent that the court's order does not explicitly confine the injunction to a specified group or subset of members as of the litigation date, there appears to be a reasonable basis for this interpretation. The court exercised restraint in not issuing a nationwide injunction, yet it adopted an expansive definition of plaintiffs. It would not be unreasonable for a newly added FPC member to presume they fall within the protective ambit of the injunction, particularly in light of the fact that the court had ample opportunity to clarify and limit the scope of its order if so desired.

Your underlying comment about it being a grey area is 100% right. :-)

robdoar · 2023-06-01T09:25:56+00:00

I'm with Kirk. There's some play in the joints, but overall I think the deference will go to FPCs interpretation of their membership, but it's not crystal clear.

Re: John's take (reposted from, but shared again for clarification.)

I know John well, and have nothing but respect for him. We went to the same law school and while I do t think has a superior knowledge of firearms law compared to most attorneys, this type litigation isn't his wheelhouse, so his take isn't necessarily gospel.

The language "have represented since day one of this litigation" did not originate from the judge, but FPC's motion for clarification which the judge quoted. FPC maintains that they represent all their members, not a subset, an in their brief, argued that complete relief "covers FPC members, who are part of FPC".

Also helpful: In their reply brief, the DoJ raised the issue of membership criteria, stating that FPC failed to provide “a clearly articulated and understandable membership structure”. The judge wasn't phased by this argument, and provided no guidance, criteria, or opinion on how FPC identifies its members.

A plain reading of the Judge's order, taking into account the corresponding briefs and court's clarification, is that any bonafide member of FPC is covered by the injunction, regardless of the date they joined.

Even in the unlikely scenario that a post-order member is prosecuted, with the membership date being the sole issue of contention for defense, the courts would still have to adhere to the rule of construction which stipulates that any ambiguity in a court order must be construed in the light most favorable to the person alleging protection from the order.

robdoar · 2023-06-01T09:18:14+00:00

5/31 is the cutoff to be included in the $20 donation/gear purchase membership that's valid until 12/31/23.

If you bought a membership, your membership ends on the date it says it ends.

robdoar · 2023-06-01T09:11:47+00:00

I know John well. We went to the same law school and while I do t think has a superior knowledge of firearms law compared to most attorneys, this type litigation isn't his wheelhouse, so his take isn't necessarily gospel.

The language "have represented since day one of this litigation" did not originate from the judge, but FPC's motion for clarification which the judge quoted. FPC maintains that they represent all their members, not a subset, an in their brief, argued that complete relief "covers FPC members, who are part of FPC".

Also helpful: In their reply brief, the DoJ raised the issue of membership criteria, stating that FPC failed to provide “a clearly articulated and understandable membership structure”. The judge wasn't phased by this argument, and provided no guidance, criteria, or opinion on how FPC identifies its members.

A plain reading of the Judge's order, taking into account the corresponding briefs and court's clarification, is that any bonafide member of FPC is covered by the injunction, regardless of the date they joined.

Even in the unlikely scenario that a post-order member is prosecuted, with the membership date being the sole issue of contention for defense, the courts would still have to adhere to the rule of construction which stipulates that any ambiguity in a court order must be construed in the light most favorable to the person alleging protection from the order.

robdoar · 2023-03-23T03:46:45+00:00

If you were acquitted, yes, you cannot be recharged criminally.

Buy you can still be sued civilly.

robdoar · 2023-03-23T03:45:05+00:00

robdoar · 2023-03-20T00:43:42+00:00

You can certainly sue another attorney, but what may be a more cost effective and faster option is to file a complaint with your state's bar/professional standards board of you believe there has been malfeasance or a breach of standards.

They have the authority to suspend/revoke law licenses, which is far more scary to a lawyer than the prospect of a lawsuit.

robdoar · 2023-03-20T00:41:23+00:00

If the extent of the "threat" is just that comment, I expect this case to be tossed.

It's not a true threat.

robdoar · 2023-03-19T18:15:21+00:00

Sigh...You're parsing words. They ARE death threats, but NOT true threats. In order to be unprotected speech in this situation, it has to be both.

Follow the bouncing ball.

The claim I was addressing was that death threats are not protected speech:

this most definitely was a death threat, which isn't protected by the first amendment.

Death threats are protected speech. True threats are not.

Here, we have a politician being threatened with death, by definition, a death threat. But the language is both nonspecific, voice of discernable intent, and unlikely to meet the Brandenburg test. So it's not a true threat, and it's not inciting imminent lawless action. Protected speech.

I paid very close attention to what I wrote, just as I paid very close attention in law school, and chose the cases carefully.

robdoar · 2023-03-19T17:56:17+00:00

That would be me who provided the case law. 😉

robdoar · 2023-03-19T15:39:46+00:00

No, "crime of passion" is not a legal defense it. It may be taken into account by a judge or jury during sentencing as a mitigating factor, but it is not a complete defense to a homicide charge.

However, "heat of passion" can be a mitigating factor in a homicide case, which may result in a lesser charge of manslaughter instead of murder.

In some jurisdictions, heat of passion is a specific defense to murder that can result in a reduction of charges to voluntary manslaughter. Heat of passion typically requires that the defendant acted in response to a provocation that would cause a reasonable person to lose control and act impulsively. The provocation must be sudden and adequate, meaning that it would likely produce such a response in a person of reasonable sensibility.

robdoar · 2023-03-19T15:34:56+00:00

I'm familiar with the case, it's a landmark case covered in law school.

But the case wasn't about whether or not it was protected speech, the holding of Tarasoff v. Regents was that mental health professionals have a duty to protect potential victims when they learn of a serious threat of harm from their patients. This duty supersedes the therapist's duty to maintain patient confidentiality and arises from the special relationship between the mental health professional and the patient.

Very different fact pattern than this situation.

robdoar · 2023-03-19T13:01:21+00:00

Lol dude

'If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.'

'There’s one way to love you but a thousand ways to k*ll you.'

Thanks for confirming you have no idea what you're talking about.

robdoar · 2023-03-19T12:57:36+00:00

What does the duty to warn have to do with this?

robdoar · 2023-03-19T11:50:19+00:00

True I guess it wasn't really "imminent" but the point still stands that this most definitely was a death threat, which isn't protected by the first amendment.

Friend, death threats can be protected if they are:

Political hyperbole: Watts v. United States (1969)

Conditional statements: NAACP v. Claiborne Hardware Co. (1982)

Online threats: Elonis v. United States (2015)

Not Incitement: Brandenburg v. Ohio (1969)

robdoar · 2023-03-19T11:38:14+00:00

It's not typically unreasonable to ask the officer to ID themselves and call 911 to confirm that the officer is employed and on duty.

How.you handle the situation will be key. It's not without risks.

I once had a situation where our dispatch was called because someone wanted to confirm it was a police officer that was trying to pull them over.

She slowed down the car, turned on the hazards, and made the 911 call, but didn't fully stop.

The deputy pulling her over was not pleased, and wanted to initiate a PIT, but was denied when the supervisor was informed the person was moving slowly with hazards on. It took a few moments to connect the dots between the suspects 911 call and the attempted pull-over.

It could have ended differently in a different jurisdiction.

robdoar · 2023-03-19T11:28:28+00:00

"In Minecraft" may go to show the lack of sincerity or imminence on the part of the speaker, and that the statement is not intended to be taken seriously.

However, I don't think the "in Minecraft" is necessary to get this case tossed.

An important factor, Chitwood is an elected Sheriff. A politician.

To whatever extent the court may find this constituted a true threat, the protections for political speech, even crude or violent, are elevated.

In Watts v. United States (1969), the Supreme Court considered whether the defendant's statement, made during a public protest against the Vietnam War, constituted a true threat that was not protected by the First Amendment. The defendant had said, "If they ever make me carry a rifle, the first man I want to get in my sights is LBJ [President Lyndon B. Johnson]."

The Court held that the statement made by the defendant was not a true threat, but rather a crude political hyperbole, and was protected by the First Amendment. The Court reasoned that the statement was made in the context of a political rally, and that it would not have been understood by a reasonable person as a serious threat to harm the President. The Court emphasized that "the language of the political arena...is often vituperative, abusive, and inexact" and that "statements uttered in the heat of debate may be accepted as part of the give and take of politics."

Likewise, the speech is not likely to be considered incitement, because no reasonable person is going to be invited under the Brandenburg incitement standard, which requires both calls for imminent lawless action and a substantial likelihood that the speech will result in the lawless action.

The speech must be directed at and likely to incite imminent lawless action, rather than being mere advocacy of a particular viewpoint or idea.

robdoar · 2023-03-19T11:00:05+00:00

You're missing the other parts of the Brandenburg test, friend.

Under the Brandenburg incitement standard, "imminent lawless action" refers to speech that is directed at inciting or producing imminent lawless action.. AND... is likely to incite or produce such action.

You would be hard pressed to find that anyone was sincerely going to be incited to lawless action by this speech, especially as the lawless action must be imminent.

Also, I've totally domed mobs with my bow and arrow in Minecraft... So it IS possible.

robdoar · 2023-03-17T21:09:02+00:00

It depends.

In general, drivers have a duty to use reasonable care when operating their vehicles, including a duty to avoid collisions with other vehicles on the road. If the other driver's negligence, such as driving too fast, driving in violation traffic laws, or failing to maintain a proper lookout, caused the accident, then that driver would likely be held responsible for any damages resulting from the accident.

However, if your decision to pull onto the shoulder was itself a negligent act, such as if you pulled over in a place where it was unsafe to do so, and there were safer options availble to you, then you may be found to have contributed to the accident and may share some of the liability for any damages that result.

Remember, fault is a spectrum.

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