Legislation concerning repeat fire weapons

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This blog is about repeat-fire weapons: whether they have any reasonable use or function in civilian hands in a civilised society. It is, of course, prompted by the Florida shooting alleged to be perpetrated by Nikolas Cruz, but not defined by or dependant on this event.

The 2nd Amendment to the United States of America Bill of Rights is well known, yet little understood. Each commentator (and many individual citizens) have their own understanding of the words contained in it. I sense that few have taken time to read the interpretive decision of the Supreme Court in District of Columbia v Heller (June 26 2008), in particular Justice Scalia’s reasoning on behalf of five Justices, and of course the dissenting judgments of four Justices delivered by Justice Stevens and Justice Breyer.

One reason that the decision may be rarely read is that it is interpretive of the ‘apparent historical intention’ of the lawmakers when the Amendment was passed on December 15 1791, making it a challenging read. Justice Scalia was at pains to address its moment of conception, quoting from Robertson v. Baldwin, 165 U. S. 275, 281 (1897):

“…the Second Amendment was not intended to lay down a “novel principle” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) – referring to the English Bill of Rights 1689.

Interestingly, with the strictly interpretive approach it is quite irrelevant that the ‘inherited right’ from English law no longer stands to be interpreted in the same way by those from whom the right was inherited. Normalised by former Master of the Rolls, Judge Tom Denning, in contrast to the US Supreme Court, English courts would consider the arguments wisely within an unlimited time-frame, with regard to what Justice Breyer raised as interest-based considerations.

So it seems that the 2nd Amendment is to guarantee an individual ‘right’ to possess and carry weapons in case of confrontation, with some qualification, according to Justice Scalia:

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms”.

The type of weapon is only to be questioned if it falls outside the concept of those available to the founding fathers, so as to be hugely and historically disproportionate to the right – the “dangerous and unusual weapon”. Thus, complex military weapons involving advanced technology would not be permissible. However, repeating and quick-fire weapons are preserved, in that they are deemed to protect ‘an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home’.

Currently, a plethora of commentators around the world are opining on the topic of gun controls and USA politics and policy. And so do I.

It is said that the state of US gun legislation has little to do with the 2nd Amendment, nor DC v Heller. In part it is the consequence of seeking, in one time frame, to define rights for all time. But it is mainly to do with the will of a legislature, the successors in title to those that passed the 2nd Amendment.

And it is to do with money and culture.

Mandatory Credit: Photo by RMV/Shutterstock (9387190an)
The FBI and police agencies from surrounding counties responded to a mass shooting at Marjory Stoneman Douglas High in Parkland, Florida. Police set up a family staging area for parents to meet their children at the Fort Lauderdale Marriott Coral Springs Hotel to pick up their children
Shooting at Stoneman Douglas High School, Parkland, USA – 14 Feb 2018

Reading social media comments from young Americans who knew the Florida killings perpetrator or victims, or who simply identify with the victims’ plight, I have been amazed at the frequency of comment from those that consider the answer to gun violence – is guns. In particular, automatic repeat-fire weapons.

‘Slippery slope’ arguments jostle with ‘arm the teachers’. Both in my view are fundamentally flawed. What is a ‘slippery slope’ for one commentator is heuristic progress of common sense to another. What is an ‘armed teacher’ for one, is to another, a shot-dead teacher.

Change never happens overnight, but I sense that the tragic events of 14 February 2018 could instigate change of some kind.

What is needed is a ‘sweet spot’ of compromise – presumably where neither proponent gets what they seek, but with which both can live, without the fear of being gunned down by one of their own community. To achieve this, someone has to resolve that automatic and quick fire weapons have no place in normal times, in public places, in civilised countries in the hands of civilians.

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Gun culture and Gangland. Who bears the Risk?

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Readers will be aware of this blogger’s preoccupation with guns as instruments of death. Its right to say that, as a former certificate holder, I was never fully comfortable with owning a firearm. As an English barrister dealing with a barrage of firearms cases for several police authorities, I became even more sensitive to the issues of ownership, use and abuse.

Shootings in American schools have resulted in recent impassioned gun pleas from President Obama. I glanced at the Wikipedia entry – yes, it takes some time to scroll down from 1927 to 2015 – to find that the Umpqua Community College shooting, with the loss of 10 lives, 20 casualties, and innumerable families distraught, was not in fact the most recent school shooting in the USA. Since then there have been two further school deaths in the States, and since my Sandy Hook blog, 19 further incidents comprising 38 deaths.

The US gun lobby, in the form of the National Rifle Association, however, maintain their resistance. shoot 1It seems that Americans are unable to release themselves from the belief that guns in the hands of civilian are more protective than offensive.

Restricting the lawful possession of handguns here in the UK after 17 deaths at Dunblane, has been of massive value in saving lives and changing public opinion. The Great British public have little issue with the fact that handguns are no longer permitted outside gun shooting clubs.

It has not, however, shut off the availability of guns. Greater Manchester Police have seized 30 unlicensed weapons this year. Now, in yet a gangland feud, Jayne Hickey, a mother and her 7 year old child have been shot.

I have previously blogged about the question of rights to own firearms here in the UK, and the need for some legislative change.

Whilst unlawful weapons – especially handguns – will be imported from time to time, the gangland weapon of choice is frequently a simple shotgun, the barrel shortened for ease of concealment, and blast effect. There is no need to import these weapons, they are here already.

Whether shotgun or handgun, the most recent shootings beg the question “What is the source of these weapons?” Until we address the manufacture, procurement and recording of weapons internationally, we will face incidents like these.  Perhaps, with regard to the ‘home gun market’, now is the time to insist (in addition to a gun amnesty) that every registered certificate holder has compulsory insurance against all of the implications of their weapon entering the wrong hands?

Farnham Puppy Farm murders

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ACC Stuart Cundy, Surrey Police – Photo courtesy of bbc.co.uk

23 February 2014, Farnham in Surrey, Christine Lee and her daughter Lucy were shot dead by John Lowe.

The weapon was a simple shot gun. It, together with other guns had been taken from him by police in March 2013 following concerns raised by Christine Lee’s other daughter Stacy Banner. By July 2013 they were returned.

John Lowe was Christine Lee’s partner. His cache of seven shotguns were kept by him at Keepers Cottage Stud under his shotgun certificate. At the time of the killing he was 82 years of age. His long-term relationship with Christine Lee had been marred by years of conflict. The case had an uncanny resemblance to that of Michael Atherton.

Today, John Lowe was convicted of murder and awaits sentence. After the verdict, this blogger was placed on stand-by by BBC Radio 4 PM programme. As matters progressed, Kevin Hurley, the Police and Crime Commissioner for Surrey agreed to comment, and unconvincingly, whilst deflecting on ‘cuts’ to the service, blamed Surrey Police staff a ‘flawed decision that failed to meet national standards’.

I see it differently. Time may indeed tell that clerical officers in an under-resourced office at Surrey Police Headquarters made mistakes. A head of department may be disciplined. National standards (which the blogger finds convoluted) may not have been followed.

But the essence of the problem lies not in the guidelines, but the rules that require the return of weapons to a certificate holder.

The debate has not yet matured to this level of examination, but under current firearms law, the possession of a shotgun is a ‘right’ not a ‘privilege’. An applicant does not have to ‘earn’ the opportunity to hold a weapon, nor to demonstrate anything other than it will be locked up securely.  A shotgun certificate “shall be granted” unless the applicant is a prohibited person (for example a known criminal who has served time), is demonstrated not to have a good reason to possess a weapon, or is shown to be “a danger to the public safety or the peace”.

The Farnham puppy farm dilema is not as uncommon as first appears. It’s just that fortuitously, the horror perpetrated by John Lowe is extremely rare.

Throughout police services in the UK, talented, informed and experienced firearms officers will tell you of cases where weapons have been anxiously returned to certificate holders, simply because the rules do not permit any other course.

Courts (usually at first instance the justices), interpret the law just as they are required to do – strictly. When the burden is on a firearms officer to demonstrate that an applicant has no good purpose or will be a danger to the public or the peace, the fact that the applicant has amassed an arsenal of weapons and wanders their neighbourhood dressed in military fatigues is largely irrelevant.

Contrary to Nigel Farage’s ill-judged comments back in January 2014, the 1997 restrictions following Dunblane did not go far enough. Then, and now, the criteria for possessing a firearm of any kind should be changed to one of privilege, and not of right.

The gun lobby will squeal; those who are committed to individual freedoms will protest; but neither group tend to be the victim of gun crime. It is the Christine Lees and the Susan McGoldricks that commonly carry the death penalty for our unruly rules.

 

 

Atherton gun review – legislation within our sights?

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Michael Atherton, a 42 year old taxi driver with no previous criminal convictions, shot and killed his 47 year old partner Susan McGoldrick, her sister Alison Turnbull, and her 24 year old daughter Tanya Turnbull on New Year’s Day 2012, before shooting himself in the head.

Atherton, who was authorised to hold six weapons – three shotguns and three rifled firearms – had an ordinary history. He was a keen angler and took up shooting as a sport. He had been involved in four incidents of domestic conflict dating back to April 2004, and his weapons were removed in September 2008 when in a drunken state it was said that he “threatened to shoot his head off”. This he subsequently denied. He was never charged. His guns were returned to him six weeks later on the proviso that he behaved responsibly. There was no ‘meaningful review’ of his suitability as a certificate holder.

The press and public are now reeling following Durham Coroner, Andrew Tweddle’s careful scrutiny at Crook Civic Centre in the inquest into the deaths that concluded today.

Deputy Chief Constable of Durham Michael Banks was both contrite and realistic about the force’s flawed decision and decision-making process. Independent Police Complaints Commission spokesman Nicholas Long said: “Not only did the IPCC investigation uncover a wanton lack of intrusive inquiries by Durham Constabulary, it also identified poor practices which reflect woeful record keeping”. “While some of the failings were down to individuals, the underlying issue was Durham Constabulary’s lack of adequate systems and safeguards.”

On BBC Radio 4 PM programme, Simon Clarke of the British Association for Shooting and Conservation placed the responsibility for the incident on Durham Police for not revoking Atherton’s licence and certification, speaking of “their abject failure” and “breaking the bond of trust with the public”. He spoke of “a failure of policy, guidance and procedure”. Clarke recommended that a centralised, specialist authority should replace the current decision making process of the 43 separate police authorities – to administer licensing in a “clear, and most importantly, a consistent way”.

The question remains whether the gun lobby is right in seeing the issue as one of ‘interpretation‘ of existing gun law – or whether we should now be looking at root and branch changes to it?

Getting a gun certificate

  • The application form asks specific questions about why you want a gun.
  • The form requires the applicant to show “good reason” for wanting a gun.
  • The criteria are less tough for shotguns than for firearms which must only be used for specific purposes in specific places, including deer stalking or sports shooting on an approved range.
  • Independent referees provide confidential character statements in which they answer questions about the applicant’s mental state, home life and attitude towards guns.
  • Officers check the applicant for a criminal record and speak to the applicant’s GP for evidence of alcoholism, drug abuse or signs of personality disorder.
  • The certificating authority must be satisfied that prospective shotgun holders have a secure location in which to keep the guns, typically a dedicated gun cabinet.
  • Each certificate is valid for five years.

Whilst the firearms legislation in England and Wales was amended in 1997 following the Dunblane enquiry (see my previous posting in December), the fundamental policy with regard to the holding of firearms and shotguns has remained unchanged since 1968.

Under the Firearms Act 1968, two main categories of weapons are defined: firearms (other than shotguns), and shotguns.

S.1 of the Firearms Act 1968 makes it an offence to ‘possess, purchase or acquire’ a firearm without a firearms certificate. The criteria for determining whether an individual is to be deemed suitable is not defined. S.38 of the Firearms (Amendment) Act 1997 sets out some parameters, namely ‘fit to be entrusted’, ‘good reason for possession’ and ‘possession without danger to the public safety or the peace’. It is then for the individual licensing officers within the 43 police authorities to interpret the criteria.

The criteria for granting a shotgun certificate is less strict. Here, so long as the applicant is not a prohibited person, the only test is that of  ‘danger to the public safety or the peace’. The issues of fitness to be entrusted, and good reason for possession are not considered.

Hidden away in s.11(5) of the 1968 Act a person may, without holding a shotgun certificate, borrow a shotgun form the occupier of private premises and use it on those premises in the occupier’s presence’. In layman’s terms, this means that a totally unauthorised and unsuitable person may have legitimate access to and use of a shotgun in circumstances where the only control is the ‘presence’ of the certificate holder.

Way forward

The historic reasons for differentiating ‘fireams’ and ‘shotguns’ made sense in 1968, and perhaps even in 1997. Then the legitimate use of shotguns compared with the numbers of shotguns out in the community and the circumstances of their use placed them in a different category. Is this now still the case?  Should the tests for grant of certification today remain different?

More importantly, is the fundamental test for a grant of a certificate (whether for firearm or shotgun) still appropriate?

Right as opposed to privilege

S.38(1) of the 1997 Act requires the chief officer of police to grant a firearms certificate unless the criteria (see above) are not met. This legislates for a qualified ‘right’ to possess a firearm. Likewise S.28 1968 Act states that a shotgun certificate ‘shall be granted‘ unless the applicant fails the two tests.

It is here that the blogger senses that he parts company with the British Association for Shooting and Conservation.

Not condoning the failures of the Durham Police firearms regime in 2008; with 7 years of unflawed experience of firearms regulation for another police authority, I have some sympathy for them. At what stage will – and more appositely then would – a court be persuaded to ‘remove a right’ to possess a firearm or shotgun?

Having conducted or advised in 31 appeals on behalf of both appellants and police authorities, I cannot be so sure as Mark Groothuis (firearms advisor), that had Atherton’s certificate been revoked in 2008, an appeal by him would not have been successful. Much water has ‘passed under the bridge’ since 2008.

Now is the time for the public and commentators alike to question ‘the right‘ of individuals to hold weapons. The burden should not be on the police to prove that an applicant is unsuitable for any reason, and that the ‘right’ should be removed; but should be fair-square on the applicant to demonstrate their suitability. The ‘right’ to possess a weapon should be replaced by the ‘privilege’ of ownership.

Only then will the public have the level of protection from the ‘Athertons’, the ‘Hamiltons’ and the ‘Lanzas’ that it deserves.

Since leaving the Metropolitan Police Service after a short but highly decorated police career, Stephen Twist has kept a close professional network with police services and police officers throughout the county. He advises constabularies on professional conduct issues, administrative law matters, licensing (liquor and firearms) and a range of other topics such as data protection and human rights. He is best known in relation to police misconduct cases where Stephen advises and represents both Complaints and Professional Standards Departments and individual police officers. He has had involvement in some of the most serious, sensitive and difficult police misconduct cases in the North of England. He sits as an independent legal adviser to police misconduct panels. 

Sandy Hook, Newtown, Connecticut

On Wednesday 13 March 1996, about 8.15 am Thomas Hamilton was seen by a neighbour to be scraping ice off a white van outside his home at 7 Kent Road, Stirling. They had a normal conversation. Some time later he drove off in the van in the direction of Dunblane. By 9.40 am at Dunblane Primary School, Gwen Mayor and fifteen children lay dead, a sixteenth child to be found dead on arrival at Stirling Royal Infirmary.

By 27 February the Firearms (Amendment) Act 1997 received Royal Assent. Under part 1 of the Act, section 5 of the Firearms Act 1968 (prohibiting automatic and assault weapons) was amended to prohibit firearms with a barrel length of less than 30 cms; and the possession of small calibre pistols was largely confined to pistol clubs. Under part 3 of the Act, the grant and revocation of firearms certificates was tightened.

In 2002 the Home Office published ‘Firearms Law – Guidance to the Police’ with a view to capturing all of the firearms legislation and procuring seamless practice in relation to firearms certification between police services.

On Friday 14 December 2012, 3,500 miles from Dunblane, Adam Lanza from Newtown, Connecticut kills 26 staff and children at Sandy Hook Elementary School.

Today, Senator Joe Manchin (West Virginia), the National Rifle Association pro-gun rights activist, concedes for the first time that now ‘everything should be on the table’ concerning gun control.

Self-loading and assault weapons have no place in civil society in the hands of members of the public. The measure of a civilised society is not the ‘protection of rights to weapons’ but the protection of the vulnerable – those who may use, and those against whom use may be made, of weapons intended for nothing more than killing.