One of the most creative occupations in the world is defense lawyer.  On how many occasions has a defendant’s counsel been asked to implicitly address the question, “When is an action which normally would constitute a crime, not a crime?”  Many television courtroom dramas, most notably Boston Legal, owe their ratings to this premise.  How could Alan Shore (James Spader), Denny Crane (Willam Shatner) or Shirley Schmidt (Candice Bergen) possibly argue a client’s innocence despite a mountain of evidence to the contrary?  And yet, they did and won most of the time.

This morning we are confronted with the opposite hypothesis.  When does a technically legal action become a crime?  The incident which triggered this topic was the shooting at 7:25 p.m. last night at the Westgate Entertainment District in Glendale, Arizona.  A man wearing a camouflage mask opened fire with an AR-15, wounding three individuals.  The suspect was taken into custody by local police.  State Senator Martin Quezada witnessed the shooting and tweeted, “I just witnessed an armed terrorist with an AR-15 shoot up Westgate.  There are multiple victims.”

Should anyone be surprised?  Earlier this week a friend drafted an op-ed piece for our local paper about the increased probability of violence when a president of the United States describes individuals brandishing assault weapons as “good people.”  My response, “I think we may be only one beer too many away from a Kent State moment.”  Although we, as yet, have no idea of the assailant’s alcohol level at the time of the shooting nor his motivation, the incident in Glendale is exactly what my friend and I feared would happen.

The Arizona shooter will be charged with a crime and have his day in court.  And we should not be shocked when his defense counsel argues he was provoked while exercising his First Amendment right to assembly and, since Arizona has no law restricting assault weapons, he was within his Second Amendment rights to bring the AR-15 to the shopping complex.  And the lawyer will remind the judge his positions have been regularly upheld by justices who favor a strict construction of the language in the Constitution.  Forget the First Amendment only guarantees “the right of the people peaceably to assemble, and to petition the government for a redress of grievances” or the shooter was not acting as a member of a well-regulated militia” as required under the Second Amendment.  Only in what has become the darkest corners of American does peaceable equal armed to the hilt with an assault weapon and petition includes intimidation under threat of violence.

Equally important, these armed “patriots” forget thirteen years before there was a First and Second Amendment, the country was founded on the principle that everyone had an unalienable right to “life, liberty and the pursuit of happiness.”  To protect that right which theists attribute to their Creator, not a mere assembly of their peers, it is time for legislators and prosecutors to be as creative as defense attorneys.

Which brings me back to Senator Quezada’s use of the word “terrorist.”  Can anyone imagine law enforcement authorities standing by if a person of color carried a pressure cooker into a mall?  Or an associate of El Chapo approached the Colorado prison, where the drug lord is being held, wearing a bullet proof vest and carrying an AK-47.  Would either be allowed to claim immunity because they were peaceably assembling or petitioning the government?

Many states have laws which make the presence of a lethal weapon during the commission of a lesser crime (e.g. robbery) illegal even if the perpetrator never intended to use the weapon.  Why isn’t obstruction of official government business a crime?  You or I can be arrested for disrupting a session of Congress from the gallery.  Should not the use of a deadly weapon to obstruct official government business be equally worthy of punishment, if not more so?

On a broader scale, perhaps it is time to rethink the entire penal code related to crimes involving firearms, even if the purpose for brandishing the weapon is only to threaten or intimidate.  For example, manslaughter is defined as “unlawful killing that doesn’t involve malice aforethought—intent to seriously harm or kill, or extreme, reckless disregard for life.” (NOLO.COM)  Remember that innovative defense lawyer?  He or she will argue, if the charge is voluntary manslaughter, the client was strongly provoked and acted in “the heat of passion.”  Yet, it is still a crime.

Now consider what might be called “premeditated provocation.”  A disgruntled citizen reads a tweet from the chief executive of the United States urging him to LIBERATE his home state.  And as an added touch suggests those looking out for public health have an ulterior motive to restrict his non-existent Second Amendment rights.  Does he email his state representative or the governor?  Does he draft an op-ed for the local newspaper?  Does he put a sign in his front yard?

NO!  Instead he decides to put on camouflage clothing and  a bullet proof vest and chooses the most ominous looking weapon from his arms cabinet.  He makes a sign which reads, “Live Free or Die” or what must be the new definition of irony, “Favor Liberty over Arbitrary Power.” Are we expected to believe he goes through all these gyrations because he thinks it is how one peaceably assembles or petitions the government?  Or is it more likely he is intentionally creating a situation which is consistent with what has become the ethos of the right, “owning the libs?”  And unfortunately when a shot is fired, he will argue, “I didn’t shoot anyone.  That was the guy standing next me.  And he only fired because that liberal snowflake said our long-rifles were compensation for our small penises. Why are you blaming me?”

And how does that unidentified president of the United States respond?  He offers to cover these “good people’s” legal bills.  Which, of course, he never actually does.

For what it’s worth.
Dr. ESP