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Summary — A security guard, Seth Eklund, employed by Paragon Security under contract to the Federal Protective Service as a Federal Security Officer (who is still a civilian security guard, not a credentialed law officer) is sitting at a checkpoint inside an Ohio state office building where the IRS rents offices on the second floor. A Sheriff’s deputy on his lunch break shows up, wanting to see someone who sent a letter to him. The security guard says “you can’t come in here while armed” and the deputy says “what? I’m a law officer in uniform!” and the security guard says “you’re not coming in with that weapon.” Then the deputy says fine, okay, do you have a gun locker where I can safely store the weapon. The security guard says no, you need to store it in your car. The officer says he can’t do that, that violates departmental policies, can you store the weapon in a locked desk drawer? The security officer then starts getting angry and irate and screams at the officer “you need to leave!” and the officer is like, “whoa, what?” and the security guard pulls his gun on the deputy and screams “you’re under arrest!” while someone in the office behind him dials 911. The deputy then turns around, later saying “I felt he was about to shoot me, if he’s going to shoot me I want it to be in my back so it’s clear I’m not being a threat to him” and starts ambling off towards the elevator saying “okay, I’m leaving.” The security guard then runs towards the elevator and sticks his foot in it and prevents the deputy from leaving, screaming “it’s too late to leave!”

Cue *more* Sheriff’s deputies (responsible for security in the building) arriving in response to the 911 call. And shenanigans ensue as the deputies try to figure out what the literal fuck is going on, given that it’s a state office building and they thought they had authority over the entire building. They’re informed no, the IRS section of the building is a federal installation and the Federal Protective Service has authority there, not the Sheriff’s Department. They appear to accept that, then the question of, uhm, why was your guy pointing a gun at one of our guys? comes up. Past a certain point the security guard realizes, “oh shit, I didn’t have legal authority to point a gun at anybody”. You can see the panic start in his eyes as he starts panicing and whines that he needs to get back to his guard post and the deputies say “uh-uhn, we’re investigating a possible crime here, you’re not free to go.”

Whoa.

Okay, let’s deconstruct this.

Legally speaking, the area where this confrontation takes place is a gray area. The deputy never entered the area behind the security checkpoint with his firearm, and was not demonstrating criminal intent when stopped. He *may* have been guilty of violating 18 USC 930 section A, possession of a firearm in a Federal facility without criminal intent… which is a misdemeanor. He *may* have been guilty of remaining after being told to leave, which is… misdemeanor trespassing under both Ohio law and Federal law.

So, does a Federal Security Officer have the power to detain or arrest someone for misdemeanors committed in his presence? Oops, NOPE! 40 U.S. Code § 1315 gives private security contractors employed by the government ONLY the power to:

… make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony;

A misdemeanor, or even two of them… are not felonies. All that a Federal Security Officer as defined by 40 USC 1315 can do when he observes a misdemeanor is… call law enforcement to handle the situation.

OOPS!

Okay, now let’s look at the act of pulling a gun upon a person. This security guard is a private citizen, i.e., a civilian. 40 USC 1315 does not explicitly grant a right for security guards to point a gun at someone, however it would be likely covered by agency regulations that allow use of a firearm only to protect the life or safety of the FSO or others. No other use is authorized by agency regulations. A civilian pointing a gun at someone on Federal property in situations other than self defense would be simple assault. It would also be covered under Ohio law, Ohio law is similar to the law in most other states — civilians can only point a gun at a person if they feel that they are in danger of death or severe bodily harm, i.e., self defense. Otherwise it is aggravated menacing, which is roughly equivalent to the Federal simple assault crime.

Okay, so oops! Now, let’s see what happened:

What happened to the Sheriff’s deputy:

NADA. Federal prosecutors and law enforcement looked at the hazy status of where this encounter took place, and decided that pursuing misdemeanor charges against the deputy was not a wise use of their time. There have been no charges filed against the deputy.

Meanwhile, what happened to Paul Blart, Rent-a-Cop:

  1. Security agency policies and procedures only allow pulling gun out of holster in self defense. Strike 1 — Paul Blart, Rent-a-Cop is fired.
  2. Paul Blart, Rent-a-Cop, is charged with two misdemeanor counts of aggravated menacing under Ohio law, one for each time he pulled his pistol out of his holster and pointed it at the deputy. Because he was not a Federal employee, he has no sovereign immunity. Oops! Strike 2.
  3. Paul Blart, Rent-a-Cop, is sued (along with his employer) for civil rights violations, causing emotional distress, failure to properly train the security guard, etc. Again, because he was not a Federal employee, he has no sovereign immunity. Strike 3, UR OUT!

Luckily Paul Blart, Rent-a-Cop, undoubtedly lives in his mother’s basemment (he has that look about him) so he has a place to live. That’s all he has. He’s not ever going to be employed in security again, that’s for sure.

Some takeaways from all of this.

  • Private security guards are private citizens. They are not police officers. In most states they have the same power of citizens arrest as any other private citizen, i.e., they can only arrest someone for a felony occuring in their presence, or as part of enforcing “merchant’s privilege” (detaining someone for investigation of suspected shoplifting). That’s all they can do. The only thing special in most states’ laws about private security guards is the part allowing them to be armed while on duty if they are properly licensed as an armed security officer.
  • Federal law similarly classifies private security guards under contract to the Federal government as private citizens, and similarly only grants them the right to arrest someone for a felony occuring in their prescence.
  • For any non-felony crime observed by a private security guard, all they can do in most states (or in Federal installations) is call 911 just like any other private citizen.
  • Attempting to detain someone for a misdemeanor (other than the special case of “merchant’s privilege”) is not allowed by the laws of most states or by Federal law, or for that matter by the policies of most security agencies even in states like California where a “citizen’s arrest” for misdemeanors is allowed by law. All that private security guards can do in that case is call 911 just like any other private citizen.
  • If you are an armed security guard, your gun is removed from your holster only if your life (or the life of someone else) is in danger. Otherwise it stays there. You don’t brandish it, you don’t wave it around, you don’t point it at anybody, it stays in your fucking holster. If someone is too big and strong for you to safely detain, or is armed and you feel you cannot safely detain him without using your firearm, don’t. Call the police. Call for backup. Call for Mommy, even. But you pull that gun out of its holster to try to detain someone, you are fired, at the very least — there isn’t a private security company in the nation that allows that, and very few state laws allow it either (and Federal law and regulations don’t allow it either, except in certain very specific cases like, e.g., defending nuclear weapons against theft).
  • Remember that it’s just a job. Putting your life on the line isn’t part of the job. That’s why the police exist. If you feel it’s too dangerous to intervene in a situation, don’t. Call the police. If you feel it’s safe to inform the person that you’re calling the police, inform him. If he decides to leave, let him leave. It’s literally not your job to endanger your life in order to detain someone, you’re a private citizen, you’re not a cop. If someone’s life is in danger, of course use whatever force is necessary to save that person’s life, but that’s because you’re not a sociopath, not because you’re a security guard. Hopefully you’d do the same off the clock too, right?
  • And unfortunately, too many legends in their own mind think a gun is some sort of magic talisman to be waved around like a magic wand and having an armed security officer license makes you special. No. Keep the goddamn thing in the holster and behave like a reasonable adult. You’re not Dirty Harry, even Dirty Harry wasn’t Dirty Harry, it was a fucking movie already, okay? Sheesh.

Paul Blart, Mall Cop, would still be employed if he had remembered all of that — and we would be spared the hilarious entertainment value of a bunch of blockhead Sheriffs’ deputies standing around scratching their heads wondering WTF just happened here, ROFL.

– Badtux the Law Penguin

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What is the militia, anyhow?

Since 1916, “the militia”, as referenced by the Constitution in Article 1 Clauses 15 and 16 of the Constitution, has been defined as “every military-age male in the country” due to the National Defense Act of 1916. But: How did that happen, and why?

First of all, let’s discard the notion that this had anything to do with the Founding Fathers. It didn’t. George Washington had a dim opinion of militia. They had been virtually useless during the American Revolution, his well-trained and equipped Continental Army had done pretty much all of the fighting that had bled the British treasury dry, all the militia managed to do most of the time was get in the way of the regular soldiers because they ran the first time someone fired a shot at them, and rarely would march more than fifty miles from their home to meet the British. A militia that’s unwilling to concentrate together in order to inflict pain upon the enemy is a militia that’s useless, and that’s what George Washington’s opinion of the militia was — that they were useless.

The anti-Federalists, however, were intent upon making sure that the new nation wouldn’t have a big military capable of imposing military rule upon the nation, so Washington’s friend Alexander Hamilton proposed a professionalization of the militia in Federalist #29, and made sure that the militia clauses to implement that were in the new Constitution. Hamilton most specifically said that the militia was not the entire mass of men, but, rather, was a well trained and equipped subset of the manpower of a state, because untrained militia were rabble and useless, while it’d cost too much to train every man in a state. Hamilton’s proposal to the anti-Federalists was, okay, you don’t want a big U.S. Army, so we’ll have a small U.S. Army that’s just a core of a military, and then the state militias will be the main military of the United States. If the central government tried to impose tyranny the state militias could stop it, and if one state’s militia tried to impose tyranny within that one state, the militias of the surrounding states would be strong enough to invade and put down the tyranny.

It was a neat system, if it had worked. In the event, the central government never provided the funding and weapons to bring the state militias up to professional standards, and this proved to be disastrous during the War of 1812, when militias led by the professional core of the U.S. Army performed so poorly that for a while it seemed that the British were going to be able to re-conquer the United States altogether. Andrew Jackson’s victory at New Orleans was pretty much the only U.S. victory against a British field army during the war. British attempts to raid Baltimore and New York were repulsed but Washington D.C. was burned. Meanwhile, multiple attempts to invade Canada by the poorly organized U.S. military forces failed disastrously. If the British hadn’t been stretched by the costs of defeating Napoleon, things could have gotten dire — the army that defeated Napoleon was, in the final days of the war, mustering in Canada to do an invasion of the United States.

After the War of 1812, the notion of “the militia” as an alternative to a strong professional military was forever discredited. The Mexican-American War in 1848 was largely fought by the U.S. Army, or, rather, its core inflated with volunteers. And of course the American Civil War was entirely fought by professional armies under the command of their respective national governments.

The American Civil War ended with a Union victory and a flurry of anti-slavery amendments to the Constitution. The most important of these was the 13th Amendment, which prohibits slavery or involuntary servitude. In the years after the American Civil War that wasn’t much of a problem. The Indian Wars didn’t require a large number of soldiers, there was rarely more than 10,000 soldiers deployed to the West. The Spanish-American War similarly didn’t require huge amounts of troops — the decrepit Spanish Empire had only a handful of troops in Puerto Rico, Cuba, and the Philippines, and the decrepit Spanish Navy was totally incapable of dealing with the increasingly powerful U.S. Navy and thus unable to reinforce their troops even if they’d had the manpower and money to do so. The Filipino-American War and Moro War that followed never had more than 10,000 American troops in the field, well within the realm of what was easy to staff with volunteers. But then 1914 happened, and massive armies with millions of men started marching across Europe and engaging in battles with mass slaughter. The death tolls in some single battles of the Great War exceeded the size of the entire U.S. Army in 1916. And it was clear by then that the United States was going to end up being dragged into the war. The Germans were getting desperate and using their U-boats to try to blockade Britain, the biggest trading partner of the United States, and the U.S. public was not going to long tolerate them sinking U.S. ships. Yet the tiny U.S. Army clearly was incapable of contributing much to the war effort. It needed to be vastly expanded. And the only way to put the millions of men under arms was a draft.

Which was involuntary servitude.

Which was illegal under the 13th Amendment to the United States.

So the Democrats in Congress, and the President, passed the National Defense Act of 1916, which started the process of buying arms and equipment for this vastly expanded military, professionalizing and increasing the funding for the National Guard and bringing it up to national standards, and otherwise prepare the country for war. And oh yeah, that pesky 13th Amendment. Clause 15 says Congress can call up the militia for national service under the command of the Federal government. So if we define the militia as every single military age man in America… gosh, we can call them up for national service!

In other words, by doing this, the Federal government could use Clause 15 of Article 1 of the Constitution to draft soldiers even if a 13th Amendment argument was made and upheld by the Supreme Court. When a draft was actually imposed in 1917 and resulted in lawsuits, they never had to fall back on this, because the Supreme Court ruled that the power to raise armies granted in Article 1 Clauses 11, 12, 13, and 14 was sufficient to make the draft legal. But if the Supreme Court had ruled that the 13th Amendment outlawed the draft even so, then there was the additional power that the Federal government could have used — they could have federalized “the militia”, i.e., selected military-age males amongst the whole population of military-age males defined as “the militia”.

And that’s how that clause ended up in the National Defense Act of 1916 — it was an attempt to defend the power to draft armies, nothing more. It had nothing to do with the original intent of the Founding Fathers, who intended the various state militias to be a subset of the male population that was well trained and well armed by the Federal government, and in no way wanted an armed rabble. George Washington would have thrown his hat on the ground and cursed at you if you told him you wanted armed rabble as the militia — “they’re useless!” basically said. The founding fathers had plenty of experience with armed rabble to tell them it was a bad idea — even providing ammunition for the rabble proved an almost insurmountable task, they ended up having to give out blocks of lead to the militia because no two rifles or muskets took the same size bullets, the men had to cast their own bullets out of those blocks of lead. At least black powder was black powder, but the British system of “cartridges” (paper tubes of powder and a bullet) obviously wasn’t going to work because no two guns took the same size charge, meaning that the militia was always excruciatingly slow at reloading compared to professional soldiers armed with professional weapons. No, Washington and Hamilton wanted professionally armed and trained militia under the aegis of the states, not rabble, and that’s what they wrote into the Constitution. The fact that 250 years later you find grown men and even a few historians arguing that the Founding Fathers intended every single man to have a military weapon and be part of the militia would have sent them into guffaws of laughter… right after they informed you as to why that was a hilariously bad idea.

— Badtux the History Penguin

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So serial dipstick and frothy rectal ooze Ricky Santorum says that the solution to mass shootings like in El Paso is moar gunz.

More guns than in Texas? For real? Has this frothy ass ooze even looked at gun stats for the state of Texas? They practically hand you a gun at the state border! 6.5% of Texans are concealed carry permit holders. There were at least 1,000 people in that store at the time the shooting happened. What that means is that there were at least 65 Texans in that store who had a concealed weapon.

And not a single one of them engaged the shooter.

So what were they doing instead? Well, what everybody else was doing — they were screaming and running. Because that’s what untrained people do when confronted with someone shooting at them — they run as fast as they can to leave that person’s presence. That’s behavior built deep into the human genome, we were prey, not predators, for millions of years before evolving to the point where we could use spears and clubs to become predators ourselves, and prey doesn’t run toward predators. It takes training and balls of steel to actually run toward someone who’s shooting at you, which is what would have been necessary in order engage someone with a rifle when you’re armed only with a handgun. Cops have that training and even they sometimes freeze or run away, like the school resource officer at Parkland High, who was a trained and certified Sheriff’s deputy and now is a former cop because he couldn’t overcome the natural instinct to run like hell when someone is shooting at you.

Sixty-five concealed weapons holders in that store, and not one of them engaged the shooter.

Can we drown this whole “moar gunz will solve mass shootings” bullshit forever now? Because clearly if even 65 people with concealed weapons can’t stop a mass shooting, the chances of even more people with concealed weapons stopping a mass shooting is…. well, what’s zero times anything? Hint: Zero.

– Badtux the Numbers Penguin

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“It’s a mental health problem!” say the right wingers about the recent spree killers.

No. Mental health in the United States is no worse today than it’s ever been. Yet spree murders continue to rise, to the point where we had two spree killings this weekend alone.

We don’t have a mental health crisis causing spree killings. What we have is a Nazi crisis. We have a problem with young white men being radicalized with white supremacist and neo-Nazi ideologies in much the same way that the Middle East has a problem with young Arab men being radicalized in Islamist ideologies, with the same result — they commit terrorist acts.

Because that is what these are: terrorist attacks. They may claim these are “lone wolf” attacks, but you look at what these young white men actually believe, you’ll see that they’ve been radicalized just as much by neo-Nazi and white supremacist ideologies as Middle Eastern terrorists have been radicalized by Islamist ideologies. They choose to engage in spree killing rather than don a suicide vest because guns are easier to buy here than bomb-making materials are, but that’s a difference in murder technique, not a difference in motivation — which is terrorism, period.

And it doesn’t help that Hair Twitler encourages them….

– Badtux the Observant Penguin

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Gilroy

Again, and again
the bullets fly
the bodies fall
the children die
the sellers of bullets count their coin.

I stare blankly
at the image so common
numb and sedated
as it repeats and repeats
Over and over
never to end.

For there is money to make
Money to spend
money for death
Death the one last freedom.

At night I dream
of dead children in the night
walking softly
in the dim moonlight
wounds showing
through rips in their clothes
where bullets tore
where bullets killed
They question softly
asking “Why?”
But the only reply
is the sound of coins.

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Yet another “responsible gun owner” shoots his nuts off. A headline that repeats on a regular basis.

This dude’s first mistake was in buying a Hi-Point 9mm pistol. From a review, talking about its accuracy: “Should you try to fire toward your opponent and hope the round doesn’t stray into a crowd, and that the loud noise scares away your attacker? Or do you just drop the magazine and throw the thing at them? If you have a pretty good arm, I wouldn’t discount the second option. It might be your best bet.”

Accompanied by a bench test sheet showing that if you shoot for his head, you’re more likely to hit his testacles. I have never seen a bench test so terrible as what this reviewer got from the Hi-Point 9mm. This wasn’t a pattern. This was random chance that he hit the target at all — at nearly point blank range, with a pistol sighted in on the target in a bench vise!

Makes you wonder if this dude was trying to commit suicide, and managed to hit his balls instead :).

– Badtux the Snarky Gun Penguin

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Cops in Vallejo shoot and kill dude who was sleeping in his car with a gun in his lap. He startled when they knocked on the window with a flashlight, reached for the gun, and they ventilated him.

Look. This is California, about 20 miles north of me. It’s illegal to openly display a pistol in the passenger compartment of a vehicle in the state of California, period. I mean, I own guns. I like guns. And I know damn well that the only legal way to carry a firearm in a vehicle in the state of California is in the cargo area in a locked container, with the ammunition locked up separately. That’s the law. Anybody sitting in his car with a pistol on his lap in the state of California is either a moron, or up to no good. And cops aren’t going to assume moron, because that could get them shot.

Cops have three priorities:

  1. The safety of the general public, and of bystanders, is priority #1 above all else.
  2. The safety of the police officer is priority #2. A dead police officer cannot protect the general public and bystanders from criminals.
  3. The safety of criminals is last. Criminals who may pose a threat to the officer, bystanders, or the general public are maybe even lower than last. Their safety barely even nudges the needle off the ground floor on the list of a police officer’s priorities.

So why didn’t they try to wake him from far away with a loudspeaker? A multitude of reasons:

  1. Loudspeakers attract bystanders. The last thing you want if an encounter turns into a gunfight is bystanders.
  2. Cops are, frankly, bad aims. If things go sideways, cops are trained to be as close to the perp as possible without being close enough to be disarmed so that they have a greater chance of hitting the perp rather than a bystander. If you’re that close to the perp already, you might as well just knock on the window with a flashlight in one hand and your service weapon in the other, because if he startles awake and starts shooting, that’s where you want to be anyhow.
  3. You want to be close also so you can see whether he’s reaching for the gun. The last thing you want is for the perp to jump out of the car and start shooting. You want to shoot and kill him *before* he starts shooting. Simply putting his hand on the gun is enough reason because at that point he becomes a threat to the safety of the officer and the safety of the public. See #1 and #2 on the priority list.

Frankly, unless something else comes out, this is a righteous shoot. A criminal was sitting in a car with an illegal gun on his lap, reached towards that gun when he was woken up by the cop tapping on the window, and was killed for his trouble. Good riddance to bad rubbish. If he didn’t want to be shot, he shouldn’t have been violating California law by openly carrying a weapon in the passenger compartment of his car. Call it suicide by cop if you want. Because that’s basically what it was, what he did.

This is reality. It’s not nice, but it is what it is. This was a righteous shoot under both policy and law. The moment he reached for that gun, any requirement that the cops consider his safety vaporized in the wind. I understand that this dude’s family doesn’t want to hear that their kid was a criminal and was shot while committing a crime, but that’s what happened here. It was illegal for that gun to be in that dude’s lap in that car in the state of California, he was committing a crime, and thus was a criminal. And when a criminal makes a move that poses a threat to the police or bystanders, the well-being of that criminal simply isn’t a consideration anymore — the only thing that becomes important then is to end the threat to the public and the officers. Period. Regardless of any nonsense that left-wing loons come up with about what the cops should have done in some bizarro world where unicorns poop rainbows and cotton candy grows on trees.

– Badtux the Law Penguin
Hmm, contrast this with the prior post if you think I knee-jerk defend cops!

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