Federal firearms act cannot be used in case

[Statkowski]

Drunk? Unknown. Drinking? Probably, it was, after all, a bar.

Bar? Yes.

Posted NO GUNS? Probably, but in South Dakota it may not have been necessary since they're prohibited anyway.

The authorities acknowledged that he was indeed defending himself, hence the dropping of any assault-related charges.

[DaveM55]

Citing HR218, Judge Dismisses Gun Charges

STURGIS, SD – Prosecutors in South Dakota have dismissed the last of several criminal charges filed against a Seattle police detective who shot a member of the Hells Angels motorcycle club during a barroom fight at the annual Sturgis Motorcycle Rally.

On Friday, prosecutors in Sturgis dismissed misdemeanor charges of carrying a concealed weapon without a permit against Detective Ron Smith and several other members of the Iron Pigs, a motorcycle club comprised of law-enforcement officers and firefighters.

Smith had also been charged with felony charges of aggravated assault and perjury stemming from the barroom fight and shooting, but those charges had been previously dismissed, said his attorney, Robert Van Norman.

Smith and fellow Seattle police officer Sgt. Dennis McCoy both faced criminal charges following a barroom fight and shooting on Aug. 9 during the annual Sturgis Motorcycle Rally. Smith shot and wounded a Hells Angels during the fight.

Smith told The Seattle Times shortly after the incident that he had opened fire after Joseph McGuire and other members of the Hells Angels jumped him inside the Loud American Roadhouse. Smith said he may have been targeted by the Hells Angels because he testified in a high-profile federal racketeering and murder trial in Seattle last year that sent several former and current members of the gang to prison.

McGuire, of Imperial Beach, Calif., survived the shooting and was charged with aggravated assault, which can result in a 15-year prison term if he’s convicted.

After the shooting, Smith and McCoy were placed on administrative leave by the Seattle Police Department. According to police, both men have recently returned to work.

Seattle police spokesman Sean Whitcomb declined to comment on the department’s internal investigation into the Sturgis shooting.

Meade County, S.D., State Attorney Jesse Sondreal said the aggravated-assault charge against Smith was dropped because it appeared that the officer was the victim of a premeditated attack. The perjury charge was dropped after police in South Dakota and Seattle determined that Smith was correct when he said he had used a personal handgun, not a department-issued weapon, in the shooting.

Charges against two other members of the Iron Pigs who were in the bar during the fight also were dropped. U.S. Customs and Border Inspection officers Scott Lazalde, 38, of Bellingham, and James Rector, 44, of Ferndale, Whatcom County, had been charged with carrying a concealed weapon without a permit, Van Norman said.

Van Norman said that a judge in Meade County, S.D., agreed with his argument that the four officers are protected under a federal law that allows off-duty law-enforcement officers to carry weapons anywhere they choose, including a bar. The federal law requires that the weapons handler not be under the influence of drugs or alcohol.

Sondreal had pursued charges against the law-enforcement officers regardless of the federal law.

Erik Pingel, 35, a firefighter from Aurora, Colo., a fellow Iron Pig who was carrying a gun that night, still faces the misdemeanor weapons charge because federal statute does not allow firefighters to carry a weapon inside a bar.

Smith didn’t return calls for comment on Monday, but Rich O’Neill, president of the Seattle Police Officer’s Guild, said “this is a day of vindication for Detective Smith and Sergeant McCoy.”

[Robert Kayland]

Notice how the Feds can't supersede state or local laws on firearms, also considering the Heller decision supports that same position, the states can regulate firearms over the feds.

I find this confusing...

I was always taught that Federal Law supersedes State Law, and that states couldn't pass or retain laws that contradict Federal statutes.

(Not talking just about gun laws here... I'm talking all areas of law).

And in the follow-up article, it appears that is the case... Fed always trumps State.

[Mosinshooter762]

Originally Posted by Robert Kayland

I find this confusing...

I was always taught that Federal Law supersedes State Law, and that states couldn't pass or retain laws that contradict Federal statutes.

(Not talking just about gun laws here... I'm talking all areas of law).

And in the follow-up article, it appears that is the case... Fed always trumps State.

That is true, so long as the law is passed pursuant to the United States Constitution. Most people, legislators, and judges seem to forget that part.

Also, there seem to be a dispute about the legality of concealed carrying in a bar, even with the federal law for law enforcement. It seems like concealed carry in a bar in South Dakota was prohibited. The prosecutor believed that they were in violation of South Dakota's laws, since the Federal law for leo's seems to still allow states to prohibit carry on places. Apparently, this judge believes they were covered by it, even in the bar.

I can not say whether bar carry it is, or is not prohibited by law in SD.

[GunLawyer001]

Originally Posted by Robert Kayland

I find this confusing...

I was always taught that Federal Law supersedes State Law, and that states couldn't pass or retain laws that contradict Federal statutes.

(Not talking just about gun laws here... I'm talking all areas of law).

And in the follow-up article, it appears that is the case... Fed always trumps State.

It's somewhat more complicated than that.

Something prohibited by Federal law will be illegal in every state, even where state law is silent, or even if the state specifically allows it (this may be changing in some areas, witness the fights over medical marijuana). Pennsylvania has no law that I'm aware of which prohibits silencer ownership, but the Feds do, so make sure it's registered.

Something allowed by Federal law, but prohibited by the State, will be prohibited in that state, UNLESS the Feds intend to preempt it, by specific preemption like the Interstate Transportation provision of the 1986 FOPA, or if it appears that the Feds intended to control the entire field. I think that the Feds have sole control over pharmaceutical approvals, for example. But states & the Feds can each enact gun control laws.

[Mosinshooter762]

Originally Posted by granuale

Priceless. The Attorney General himself doesn't know.

According to carryconcealed.net South Dakota honors Washington's carry permits.

Also, according to carryconcealed.net there is a restriction on carrying in some establishments that serve types of alcoholic beverages. I managed to find the following South Dakota statute below.

23-7-8.1. Form and contents of permit. The form of the permit to carry a concealed pistol shall be prescribed by the secretary of state pursuant to § 23-7-8. The permit shall list the applicant's name, address, and the expiration date of the permit. The holder of a permit may carry a concealed pistol anywhere in South Dakota except in any licensed on-sale malt beverage or alcoholic beverage establishment that derives over one-half of its total income from the sale of malt or alcoholic beverages. Nothing in this section prevents law enforcement officers, security guards employed on the premises, and other public officials with the written permission of the sheriff from carrying concealed weapons in the performance of their duties or prevents home or business owners from carrying concealed weapons on their property pursuant to § 22-14-11.

[tl_3237]

Originally Posted by GunLawyer001

Something prohibited by Federal law will be illegal in every state, even where state law is silent, or even if the state specifically allows it .

In such a case can local LEOs make an arrest on an exclusive Federal violation? Can a state prosecute a Federal violation?

Always wondered about this and heard many differing opinions.

[tl_3237]

Awful quiet out there. Surely we have non-federal LEOs reading and their training would have covered they authority or lack thereof to arrest for Federal offenses. Anyone out there care to opine whether local LEOs can arrest for purely Federal violations?