Our string of guest posts concludes today with this excellent piece submitted by The Attorney General of The Great Nation of Royal Turdistan, CALawyer esq. etc. etc.
Obamacare and Other Threats to Liberty
Let’s connect some dots. Let’s examine some facts, draw some conclusions, and make some predictions.
First, the facts:
(1) Obamacare was enacted, and has or will soon be fully implemented;
(2) Pursuant to the comprehensive scheme of Obamacare, the federal government will now have complete and total access to all medical records of the people [I am not sure, because I have not studied, whether Obamacare grants the federal government access to the healthcare records of illegal aliens, but I assume so, so I make no distinction here between citizens and non-citizens of the United States];
(3) Existing state law, at least in California, prohibits a person from possession of firearm, including ammunition, where such person has been detained under California Welfare and Institutions Code § 5150, which law provides for detention and a 72 hour mental health evaluation of a person considered a danger to himself/herself or others. Such a person detained under section 5150 is subject to a five-year ban on firearms possession and is disqualified from possession, including no use of firearms at the range, no hunting, no ammunition; such person can petition the court for an early termination of the firearm possession prohibition per Welfare and Institutions Code § 8103;
(4) Additionally, there is a long-standing rule in California that any person at any time may petition any state court in California for a temporary restraining order based solely upon a signed declaration from that person claiming that a person has threatened immediate harm. This is a GREAT rule for lots of reasons but there are unintended consequences and ramifications that become chilling in the context of Obamacare. So long as the declaration, which is sworn testimony under oath, contains a bare minimum of facts describing some immediate threat of harm whether true or not, the temporary restraining order will be issued by the court.
(5) Once a temporary restraining order is issued by the court, the restrained person is required to surrender any and all firearms to a local law enforcement agency. If not, the restrained person is now subject to criminal penalties for contempt and possibly worse, including potential felony possession of firearms.
(6) A temporary restraining order automatically terminates after 10 days, unless thereafter, the person who obtained the initial temporary restraining order goes back to the court on the tenth day, and presents sufficient testimony convincing a judge that the temporary restraining order should be turned into a permanent restraining order.
(7) If the temporary restraining order becomes permanent, the restrained person is barred from possession of firearms pursuant to the terms of the court order. The only judicial remedy for the restrained person is for the restrained person to appeal the ruling, which takes time and money obviously, but in the meanwhile, the restrained person is prohibited from possessing firearms.
(8) Similarly, a person arrested for a crime of violence, is required to turn over all firearms to law enforcement. Remember, an arrested person is presumed innocent; yet, upon an arrest, the presumed innocent person suffers an actual loss, which is possession of any firearms.
(9) Both a person arrested for a crime of violence, and a person subject to a temporary/permanent restraining order must surrender firearms to a local law enforcement agency. Such firearms held by law enforcement incur a “storage fee.” In one case I did, storage fees by a local law enforcement agency were $50 per firearm per month. A “firearm” was broadly defined, and included with respect to a shotgun, different barrels for the same lower receiver. In that case, the restrained person had three heirlooms: two pistols and shotgun with multiple barrels, which were all surrendered to law enforcement after an arrest on bogus charges [two juveniles smoking pot behind a dumpster accused a sixty year old man of threatening them]. Months later, after all charges were dropped, and after successfully obtaining a court order mandating the return of the weapons to the client, the storage fees ended up exceeding the value of the firearms dramatically. The court would not reduce the “storage fees” and the firearms would not be released unless the storage fees were paid to the local police department. Naturally, the client refused to pay the extortionate storage fees. The firearms remain in custody pursuant to the court order, have been destroyed or who knows? True story.
(10) But wait, there's more. Existing federal law prohibits persons who have “been adjudicated as a mental defective or who [have] been committed to a mental institution” from ever owning a firearm. 18 U.S.C. § 922. A California §5150 hold is within the purview of 18 U.S.C. § 922.
(11) Meanwhile, back at the SCOTUS, the Justices delivered up another crushing blow to freedom, https://www.scotusblog.com/case-files/cases/salinas-v-texas/ . From the blog: “When petitioner [the criminal suspect] had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilt at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question.” From another blog (https://www.deathandtaxesmag.com/200761/what-the-hell-did-the-supreme-co... “ On Monday, the court ruled on Salinas v. Texas, in which it was determined that although you have the right to remain silent, you do so at your own peril.
Here’s what happened: Genovevo Salinas had attended a party at a house in Houston the night before the two brothers that lived there had been shot. He was called in for questioning, and was not read his Miranda rights because at the time he was just considered a possible witness. When he was asked about whether or not the bullets from the shotgun he owned might match the ones found at the house, he refused to say anything. When he was eventually put on trial for the murder, prosecutors brought up his remaining silent as “evidence” that he was covering something up. Which pretty much defeats the entire purpose of the 5th Amendment. Prosecutors are never allowed to use an exercise of the the right to remain silent against someone.
However, the Supreme Court ruled that because Salinas had not been arrested and did come right out and invoke the 5th Amendment while being questioned, his silence didn’t count as part and parcel of that right. This is total bullshit. What this means is that if you are not a suspect in a crime and thus not read your Miranda Rights but you are questioned by police nonetheless, you now have to “formally” invoke your right to remain silent or your silence can be used against you in a court of law.
(12) Wow. See how it works? A criminal suspect is arrested, questioned, but does not specifically invoke his right to remain silent. At the later criminal trial, the prosecutor can say to the jury: “the criminal defendant did not say anything to offer an explanation, therefore, he must be guilty.” This decision has been roundly criticized, and rightly so. (https://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/s...). Do a google search for “supreme court 5th amendment” and you will find many articles. Look for yourself and see what is happening.
Connecting the Dots:
Having now identified the facts, let’s draw some conclusions and make predictions.
(1) Freedom and liberty are eroding, marginally but inexorably. Ignore this obvious reality at your peril.
(2) Both the federal and state governments continue to expand their reach into what has traditionally been completely private and off-limits, such as one’s personal medical information.
(3) Recent federal scandals involving federal government agencies such as the NSA and IRS, such scandals coming to light by whistle blowers, leave no room to argue that such federal intrusion is benign.
(4) The federal government has or will soon have pursuant to Obamacare, complete knowledge over everyone and, from there, as shown above regarding Second Amendment and Fifth Amendment rights, there is no logical limitation to the federal government’s power at all. Is anyone concerned yet?
In light of all recent events, is it not imperative to prepare accordingly?
CAL esq etc etc