U.S. v Laurent

[mauserme]

http://newsandinsigh...arm_possession/

 

 

 

 

 

Judge questions 2d Circuit ruling on firearm possession

 

11/22/2011 COMMENTS (0)

 

NEW YORK, Nov 22 (Reuters) - A Brooklyn federal judge on Monday denounced as "utterly absurd" a 1988 appeals court ruling that under a federal firearm law, possessing a gun was the same as receiving it.

 

During a hearing in the Eastern District of New York courthouse, U.S. District Judge Jack Weinstein railed against the 2nd Circuit Court of Appeals' decision in United States v. Rivera -- which held that "proof of constructive possession of a weapon satisfies the receipt element" of a federal firearm law.

 

"I'm not going to say that possessing a gun is the same thing as receiving it," Weinstein said. "I'm not going to accept the 2nd Circuit's interpretation because it's utterly absurd."

 

Last April, prosecutors from the U.S. Attorney's office in Brooklyn charged Jamal Laurent with violating the law, 18 U.S.C. 922(n), which makes it illegal for anyone indicted for a felony to "ship or transport ... or receive" a firearm.

 

According to the federal complaint, Laurent -- who was indicted in Brooklyn state court in 2010 for criminal possession of a weapon and reckless endangerment -- was arrested by New York police last March following a scuffle with a man who accused Laurent of robbing him. Police recovered a revolver from the scene, and identified it as belonging to Laurent.

 

Laurent's lawyer, Donna Newman of Buttermore Newman Delanney & Foltz, argued that the law is a violation of his Second Amendment right to possess a firearm. The law relies on an "irrebuttable presumption of dangerousness" for anyone indicted on any kind of felony, she said, and could possibly keep nonviolent offenders and innocent individuals from exercising their constitutional rights.

 

The state charges against Laurent are still pending.

 

'MORE DANGEROUS' IF INDICTED

 

On Nov. 18, Weinstein ordered both parties to address whether 922(n) violated a defendant's Fifth and Second Amendment rights, as well as the presumption of innocence.

 

During oral arguments on the order Monday, Weinstein seemed inclined to keep the law intact, indicating that its benefits to society outweighed its drawbacks for the indicted.

 

"Someone who has been indicted is more dangerous than someone chosen at random," Weinstein said.

 

But while Weinstein appeared to side with prosecutors on the statute's constitutionality, he questioned them sharply about whether they could prove Laurent actually received the weapon after he was indicted. Merely possessing the weapon would not be enough to trigger the ban under 922(n), Weinstein said.

 

"The theory that he 'receives' it every time he takes it out of a box and puts it in his pocket is absurd," Weinstein said.

 

Weinstein initially threatened to dismiss the indictment, but relented when prosecutors said they could offer proof that Laurent received the weapon after his state-court indictment.

 

Weinstein said he will set an additional hearing to allow prosecutors to present that evidence before Laurent's scheduled trial, scheduled to begin on December 5.

 

Lawyers for both the United States and Laurent declined further comment.

 

The case is U.S. v. Laurent, in the U.S. District Court for the Eastern District of New York, no. 11-322.

 

For the U.S.: Assistant U.S. attorneys Tiana Demas and Zainab Ahmad

 

For Laurent: Donna Newman of Buttermore Newman Delanney & Foltz

 

(Reporting by Jessica Dye)

 

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[Federal Farmer]

Not bad coming from Weinstein. He's the judge that sided with NY against the Protection of lawful commerce act which protects gun manufacturers from frivolous lawsuits.