Tuesday, February 11, 2014

Dwayne Ferguson, Gun Control Activist, Faces Felony Gun Charges / Buffalo, New York

You might have read about this case.  I found it interesting.  “Gun Safety Activist Causes School Lockdown and Faces Charges after Carrying Gun on School Property.”  (Thursday, February 6th)

Dwayne Ferguson, age 52, licensed to carry a concealed weapon in the state of New York, was arrested and charged with two felonies when he ‘accidentally’ carried a handgun into an elementary school where he was mentoring young children.  Someone, anonymously, reported to the police that an unknown individual had brought a gun into the school.  (Sounds to me like Dwayne was set-up.)  The school was locked down, countless police and a SWAT team responded, and after some time, reportedly hours, the police discovered the person ‘packing’ was Ferguson.

Ferguson, a prominent figure in the community, and a proponent of strict gun laws for the state of New York – much like the ones for which he was arrested – was, during the extended search and lockdown, allegedly protecting children while police searched the school.  He was apparently not aware that the gun-toting individual the police were looking for was, in fact, he.

This is both amusing and troubling.  Amusing from the point of view that a strong gun control activist could be arrested for violation of laws that he publicly supported, and that his defense is that he was unaware that he was carrying a gun on his person.  On the other hand, troubling in the sense that violating some of the new gun control laws is extremely easy to do.  I’ll explain.

As a general rule, there are two elements to a crime – particularly felonies:  the mens rea or criminal intent and the actus reus or guilty act.  Both of these elements are normally required for the most serious crimes.  In Ferguson’s situation, if the facts are as reported, he has completed the guilty act (actus reus), but he has not shown or demonstrated criminal intent (mens rea).  Now there are exceptions.

Many violations of law, such as traffic violations, do not require criminal intent – as we all know.  Nonetheless, most felonies do require intent.  And, this started me thinking about possible exceptions to that standard.  Negligent homicide might be one exception.  It is based on the premise that an act of violence has been committed wherein an ‘average’ citizen should be aware that his or her actions were dangerous and likely to cause harm (an element of intent).

This is, I suppose, the long way around to address the question as to whether or not Ferguson, clueless as he may very well have been, should be charged with a felony.  A fine perhaps, but a felony?  I don’t think so.

A personal observation:  I ‘carried’ for quite a few years while in law enforcement.  I don’t think there was a moment when I was not fully aware that there was a gun strapped to my waist.  How someone could forget they were carrying a gun and walk into an elementary school, particularly after supporting and advocating for that very same law against bringing guns into schools, is hard for me to believe.  More likely, in my opinion, Ferguson decided that the law didn’t necessarily apply to him.

Now to the troubling aspect.  Many laws have been recently enacted making it a felony to possess a gun on your person within 1000 feet of a school.  Laws similar to the one that ensnared Ferguson.  Practically speaking, this makes it difficult to navigate any town or city without violating the law if you are a shooting hobbyist or hunter.  Those licensed to carry ‘concealed’ are not exempted from these restrictive laws.  Ignorance is no excuse.  So, if your car happens to break down near a school, and you have a concealed permit, the police officer’s first question will be, ‘do you have a gun with you?’  Why would they ask that?  Because when they run your license plate, they are informed that the registered owner of the vehicle has a gun permit.  So, what do you do?  Well, you could lie.  God help you if the police discover you were lying.  Or, you could say, ‘yes, I have a permit and the gun is in the glove box.’  It’s nice that you are honest, and very commendable I might add; but, nonetheless, you will be on your way to jail in handcuffs - possibly charged with a felony.

The laws vary from state to state, so do your research.  Oh, I should say, good luck with that.  The gun laws, you will find, are complicated, redundant and deceptive – not always as they might first appear.  Remember that state gun laws are often enacted by marginally employed lawyers who have the time to run for state office, have never owned a gun and can’t understand why anyone would want to own a gun, and who take considerable joy in creating laws that are so unintelligible that a lawyer is required to interpret.

True Nelson
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