News Update: Ref who brought gun to school Sylvania

[medmandan]

http://www.13abc.com/story/16687951/ref ... hview-game" onclick="window.open(this.href);return false;

Well, the ref who made the brilliant decision despite having a CHL to bring a handgun onto school property has been charged..now to see what kind of sentencing he ends up with...

[sodbuster95]

Pretty sure it's been hit on before, but if it's me, my first motion is to suppress the statement to police reporting the theft. It may be a failing argument, but it's worth a shot. Without the statement, they can't prove the firearm was ever in the school.

[Sevens]

If they suppress the statement... and then later at trial they put him on the stand and ask him, wouldn't that be the same thing? He's got to answer with the truth, does he not?

[WayneB]

If they suppress the statement... and then later at trial they put him on the stand and ask him, wouldn't that be the same thing? He's got to answer with the truth, does he not?

IANAL - is a prosecutor allowed to ask about evidence that's already been suppressed?

And, isn't that the best time to invoke the 5th? (actually, the BEST time would have been at the beginning.)

JUDGE: I'm not allowing the marijuana confiscated at the scene from the car to be in evidence.
PROSECUTOR to owner of car. Did the office take any marijuana out of your car when he pulled you over?
CAR OWNER: Yes - he did.

Now that just doesn't seem like it should be ok - does it??

[gmhiggins]

He's got to answer with the truth, does he not?

Unless it will incriminate himself.

[sodbuster95]

If they suppress the statement... and then later at trial they put him on the stand and ask him, wouldn't that be the same thing? He's got to answer with the truth, does he not?

He cannot be compelled to answer a question which will incriminate himself. However, it would not get to that point because he also cannot be compelled to take the stand. If he were to choose to take the stand (which would be foolish in most circumstances, but particularly these), the prosecutor could not ask about or even infer as to evidence which has already been suppressed.

[sodbuster95]

And, isn't that the best time to invoke the 5th? (actually, the BEST time would have been at the beginning.)

The issue here is that he had a statutory duty to report the theft of the firearm. By adhering to that duty, he was forced to incriminate himself by revealing that he had committed a crime.

Now that he has incriminated himself by filing the report, the next issue becomes whether the prosecutor should be allowed to use what is essentially evidence obtained in violation of both the 4th and 5th Amendments. My answer is "no", obviously.

[medmandan]

Seems a little hinky to me that he would be required to report the theft from an area where said gun was not to be allowed in the first place, and then be allowed off scott free after breaking said law...

[WayneB]

I'm agreeing with sodbuster about the whole 4th & 5th issues. I believe that you cannot write / enforce a law that forces you to violate the right to not self incriminate.

My fear would be that the defense would pose that and the judge would say "then he should not have willingly complied with a law that violated his rights. Since he did so willingly, the self incrimination will stand.".

[djthomas]

I'm not a lawyer so I don't know if there's any kind of hierarchy but for what it's worth failure to report is a fourth degree misdemeanor. Deadly weapon in a school safety zone is a fifth degree felony. It seems to me that if anything would need to yield it would be the M4, failure to report. So to Wayne's point he would have been protected from charges that he failed to report but since he opted to do so he did it with full knowledge that he was copping to a felony.

But maybe it doesn't work that way and when two statutes are in conflict with each other the fifth protects you from both? I don't know.

It seems to me that this is going to be instructive on the notification law too. If you're in an enumerated CPZ (felony) are you obligated to inform (M1 for failure)? What if you're in a private CPZ (M4) where the penalty for failing to notify is the more severe?