Success/Results2020-02-11T14:33:46+00:00

Carry Permit Requirement Statute

Minnesota Second Amendment Lawyer Lynne Torgerson files brief with Minnesota Court of Appeals to strike down the carry permit requirement statute as unconstitutional.  Here’s an excerpt of her excellent brief, highlighting some beautiful law in support thereof:

  1. WHETHER THE CARRY PERMIT REQUIREMENT STATUTE IN MINNESOTA MUST BE STRUCK DOWN ON THE GROUNDS THAT IT IS UNCONSTITUTIONAL IN VIOLATION OF THE SECOND AMENDMENT.

Standard of review

An appeal challenging the constitutionality of a statute involves issues of law for which the standard of review is de novo. State v. Shattuck, 704 N.W.2d 131, 135 (Minn. 2005)(cite omitted).

Mr. XXXXXXXXXX, Appellant herein, has been convicted of violating the following statute:

Subd. 1a. Permit required;[1] penalty. A person, other than a peace officer, as defined in section 626.84, subdivision 1, who carries, holds, or possesses a pistol in a motor vehicle, snowmobile, or boat, or on or about the person’s clothes or the person, or otherwise in possession or control in a public place, as defined in section 624.7181, subdivision 1, paragraph (c), without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor. A person who is convicted a second or subsequent time is guilty of a felony.

Minn. Stat. §624.714, subd. 1a (2018).

Subdivision 22 of section 624 of the Minnesota Statutes declares the following:

Subd. 22. Short title; construction; severability. This section may be cited as the Minnesota Citizens’ Personal Protection Act of 2003. The legislature of the state of Minnesota recognizes and declares that the [S]econd [A]mendment of the United States Constitution guarantees the fundamental, individual right to keep and bear arms. The provisions of this section are declared to be necessary to accomplish compelling state interests in regulation of those rights. The terms of this section must be construed according to the compelling state interest test. The invalidation of any provision of this section shall not invalidate any other provision.

Minn. Stat. §624.714, Subd. 22 (2018)(emphasis added).

Section 624.711 of the Minnesota Statutes, entitled Declaration of policy, of this section, provides the following:

It is not the intent of the legislature to regulate shotguns, rifles and other longguns of the type commonly used for hunting and not defined as pistols or semiautomatic military-style assault weapons, or to place costs of administration upon those citizens who wish to possess or carry pistols or semiautomatic military-style assault weapons lawfully, or to confiscate or otherwise restrict the use of pistols or semiautomatic military-style weapons by law-abiding citizens.

Minn. Stat. §624.711 (2018)(emphasis added).

Role of Courts

Courts are “’independently responsible for safeguarding the rights of [our] citizens.’ State courts are, and should be, the first line of defense for individual liberties within the federalist system.” State v. Gray, 413 N.W.2d 107, 111 (Minn. 1987)(emphasis added)(quoting State v. Fuller, 374 N.W.2d 722, 726-27 (Minn. 1985)).

Additionally, the role of the judiciary is limited to deciding whether a statute is constitutional, not whether it is wise or prudent legislation. State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990)(cites omitted).

Second Amendment to the United States Constitution[2]

The Second Amendment to the United States Constitution provides the following:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. Const. amend. II (1791).[3]

At the time of the founding, as now, to “’bear,’” means to “’carry.’” Heller, 554 U.S. ___ (citing Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989). In simple terms, this means that under the Second Amendment to the United States Constitution, citizens of the United States are entitled to own and have, and, carry around, firearms (to have them and carry them around).

Second Amendment Generally

The right to possess firearms, the right to keep and bear arms, is a fundamental right.[4] See District of Columbia v. Heller, 554 U.S. ___, (2008). “’It was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.’” Heller, 554 U.S. ___ (quoting J. Ordronaux, Constitutional Legislation in the United States 241-242 (1891)). In United States v. Cruikshank, 92 U.S. 542, “the opinion explained that the right ‘is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment . . . means no more than that it shall not be infringed by Congress.’” Heller, 554 U.S. ___ (quoting Cruikshank, 92 U.S. at 553).

The Second Amendment is a God Given, Inalienable Right

Constitution signer John Dickinson, like many of the others in his day, defined an inalienable rights as a right “which God gave to you and which no inferior power has a right to take away.” David Barton, The Second Amendment, p. 12 (2000)(citing John Dickinson, Letters from a Farmer in Pennsylvania, R.T.H. Halsey, editor (New York: The Outlook Company, 1903), p. xlii, letter to the Society on the Occasion of Laying the Cornerstone of an Astronomical Observatory on the 10th of November, 1843 (Cincinnati: Shepard & Co., 1843, pp. 13-14)).

John Adams, United States President, Signer of the Declaration, a signer of the Bill of Rights, declared that:

Resistance to sudden violence for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I never surrendered to the public by the compact of society and which, perhaps, I could not surrender if I would . . . .

David Barton, The Second Amendment, p. 24 (2000)(quoting John Adams, On Private Revenge, Boston Gazette, September 5, 1763)).

Samuel Adams, signer of the Declaration, and Father of the American Revolution, declared that:

[T]he said Constitution [should] be never

construed . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”

David Barton, The Second Amendment, p. 25 (2000)(quoting Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, Held in the Year 1788 (Boston: William White, 1856), pp. 86, 266, February 6, 1788; see also William V. Wells, the Life and Public Service of Samuel Adams (Boston: Little, Brown, & Co., 1865), Vol. III, p. 267)).

The Second Amendment is an American Guarantee

[T]he advantage of being armed [is an advantage which] the Americans possess over the people of almost every other nation . . . . [I]n the several kingdoms of Europe . . . the governments are afraid to trust the people with arms.

David Barton, The Second Amendment, p. 26 to 27 (2000)(quoting James Madison, U.S. President, Signer of the Constitution, A Framer of the Second Amendment in the First Congress).

The Second Amendment is Necessary

Men, in a word, must necessarily be controlled either by a power within them or by a power without them; either by the Word of God or by the strong arm of man; either by the Bible or by the bayonet.

David Barton, The Second Amendment, p. 30 (2000)(quoting Robert Winthrop, Speaker of the U.S. House, 1847 – 1849; Robert Winthrop, Addresses and Speeches on Various Occasions (Boston: Little, Brown and Co., 1852), p. 172, from an Address Delivered at the Annual Meeting of the Massachusetts Bible Society in Boston, May 28, 1849)).

Self Defense

The first reason for the Second Amendment is the right of self defense, defense of family, property, etc. In regard to self defense:

The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.’”

Heller, 554 U.S. ___ (quoting 1 Tucker’s Blackstone 143 at App. 300)).

Defense of the United States

To have men armed, on the ground, is also needed for adequate protection of the United States and deterrence of enemies. Historically, at the time frame of the enactment of the Second Amendment, “’Ordinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’”[5] Heller, 554 U.S. ___ (quoting Miller, 307 U.S. at 179)). At the time of the ratification of the Second Amendment, the body of all citizens capable of military service, were expected to bring the sorts of lawful weapons that they possessed at home to militia duty. Heller, 554 U.S. ___ . This way, in the event the United States was ever attacked, men would be armed and ready to defend the United States. Interestingly, this evidently also has a deterrent function. This is shown by a quote from Commander in Chief of Japan during World War II, Isoroku Yamamoto. Commander Yamamoto is quoted as saying:

You cannot invade the mainland United States. There would be a rifle behind every blade of grass.

What this shows is that enemies of the United States are deterred from attacking the United States because of the perception that the citizens of the United States are armed with firearms and will shoot and kill enemies who attack. Thus, the Second Amendment clearly also provides a deterrent effect on enemies of the United States.

Tyrants and Tyranny

Early on, the Second Amendment was discussed by the judge and professor, Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Heller, 554 U.S. ___. He wrote that the “Second Amendment . . . ‘was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people.’” Heller, 554 U.S. ___ (quoting Cooley, at 270)).

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree . . . Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belong to our forefathers, trampled under foot by Charles I and his two wicked sons . . . .”

Heller, 554 U.S. ___ (quoting Nunn v. State, 1 Ga. 243, 251 (1846)).

With respect to tyrants and tyranny, “[o]ne of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms,[6] and by substituting a regular army in the stead of a resort to the militia.” Heller, 554 U.S. ___ (quoting A Familiar Exposition of the Constitution of the United States §450 (reprinted in 1986)).

History shows that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. Heller, 554 U.S. ___. An example is that between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. Heller, 554 U.S. (citing J. Malcolm, To Keep and Bear Arms 31-53 (1994); l. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981)). Under the auspices of the 1671 Game Act, for example, James II had ordered general disarmaments of region home to his religion enemies.[7] Heller, 554 U.S. ___ (citing Malcolm, 103-106)).

Another significant legal commentary was that of John Randolph Tucker. David Barton, The Second Amendment, p. 20 (2000). Tucker was dean of a law school, a constitutional law professor, the Attorney General of Virginia, and the President of the American Bar Association. David Barton, The Second Amendment, p. 22 (2000). In 1899, Tucker authored his two volume commentaries on the Constitution. David Barton, The Second Amendment, p. 20 (2000). In those commentaries, Tucker explained:

The Second Amendment reads thus: A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This prohibition indicates that the security of liberty against the tyrannical tendency of government is only to be found in the right of the people to keep and bear arms in resisting the wrongs of government.

David Barton, The Second Amendment, p. 22 (2000)(quoting John Randolph Tucker, The Constitution of the United States, Henry St. George Tucker, editor (Chicago: Callaghan & Co., 1899), Vol. II, p. 671, 25).

And what country can preserve its liberties if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms.

David Barton, The Second Amendment, p. 26 (2000)(quoting Thomas Jefferson, United States President, Signer of the Declaration of Independence; Jefferson, Memoir, Correspondence, and Miscellanies, Vol. II, p. 268, to Colonel Smith on November 13, 1787)).

The Militia Means All United States Citizens

Historically, every private individual citizen was considered a part of the public defense. David Barton, The Second Amendment, p. 32 (2000). As explained by Richard Henry Lee, a signer of the Declaration and an original framer of the Second Amendment:

[T]he militia shall always . . . included, according to the past and general usage of the States, all men capable of bearing arms.

David Barton, The Second Amendment, p. 32 (2000)(quoting Lee, Additional Letters, pp. 169-170, Letter XVIII, January 25, 1788)). For this reason, “militia,” in the Second Amendment, was understood to be every individual citizen rather than just the army of the organized military. David Barton, The Second Amendment, p. 32 (2000).

A militia . . . are in fact the people themselves . . . [and] are for the most part employed at home in their private concerns. Richard Henry Lee, Signer of the Declaration, a Framer of the Second Amendment in the First Congress

The militia . . . are . . .the people at large. Tench Coxe, Attorney General of Pennsylvania, Assistant Secretary of the Treasure Under President George Washington

 

The militia is composed of free citizens. Samuel Adams, Signer of the Declaration, “Father of the American Revolution”

Who are the militia? They consist now of the whole people. George Mason, Delegate to the Constitutional Convention, “Father of the Bill of Rights”

David Barton, The Second Amendment, p. 33 (2000)(quoting Lee, Additional Letters, pp. 169-170, Letter XVIII, January 25, 1788; Tench Coxe, An Examination of the Constitution of the United States of America, Submitted to the People by the General Convention at Philadelphia, the 17th Day of September, 1787, and Since Adopted and Ratified by the Conventions of Eleven States (Philadelphia: Zechariah Poulson, 1788), p. 21; Samuel Adams, Writings, Vol. III, p. 251, to James Warren on January 7, 1776); Debates . . . of the Convention of Virginia, p. 302, George Mason on June 16, 1788; see also Elliot’s Debates, Vol. III, p. 425 (Elliot’s incorrectly lists the date as June 14; it is properly June 16)).

When the United States Congress passed the Militia Act of 1792, the first federal law on this subject, it defined “militia of the United States,” not as the Continental Army or any other organized military body, but rather, as including almost every adult male in the United States. David Barton, The Second Amendment, p. 33 (2000).

The Senate Judiciary Committee noted:

The proposal [for the wording of the Second Amendment] finally passed the House in its present form: “A well regulated militia, being necessary to the security of a free state the right of the people[8] to keep and bear arms, shall not be infringed.” In this form it was submitted into the Senate, which passed it the following day. The Senate in the process indicated its intent that the right be an individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing for the common defense” . . . .

David Barton, The Second Amendment, p. 22-23 (2000)(citing The Right to Keep and Bear Arms, Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, Ninety-Seventh Congress, Second Session, February, 1982, pp. 9, 17).       Youth Included

[T]o preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.

David Barton, The Second Amendment, p. 26 (2000)(quoting Richard Henry Lee, Signer of the Declaration of Independence, A Framer of the Second Amendment in the First Congress; Richard Henry Lee, An additional Number of Letters From The Federal Farmer To The Republican (New York: 1788), p. 170, Letter IVIII, January 25, 1788)).

Historically Citizens Were Required to Own Firearms, Have Ammunition, and to Carry Firearms In Public

Historically, American citizens were required to both have firearms, and, ammunition. A 1623 Virginia Law required citizens to be well armed before traveling. David Barton, The Second Amendment, p. 30 (2000). In 1631, Virginia law required:

That men go not to work . . . without their arms. All men that are fitting to bear arms shall bring their pieces to the church, [and] upon pain of every offense . . . pay 2 lb of tobacco.

David Barton, The Second Amendment, p. 30 (2000).

In 1658, Virginia required every household to have a functioning firearm within his house. David Barton, The Second Amendment, p. 30 (2000).

In 1673, the law provided that if a person was too poor to purchase a firearm, the government would provide him one, for which the person would be required to pay when able. David Barton, The Second Amendment, p. 30 – 31 (2000).

In 1676, the law provided that “Liberty is granted to all persons to carry their arms wheresoever they go.” David Barton, The Second Amendment, p. 31 (2000).

In 1632, The New Plymouth Colony required that “each person . . . have piece, powder, and shot; a sufficient musket or other serviceable piece . . . .” David Barton, The Second Amendment, p. 31 (2000).

In 1639, The Newport Colony required that “none shall come to any public meeting without his weapon.” David Barton, The Second Amendment, p. 31 (2000)(citing Records of the Colony of Rhode Island and Providence Plantations in New England, J. Bartlett, editor (Providence: 1856), Vol. I, p. 94 (1639)).

In 1770, the State of Georgia provided that “for the better security of the inhabitants,” it is required that every resident “to carry firearms to places of public worship.” David Barton, The Second Amendment, p. 32 (2000)(citing Statutes, Colonial and Revolutionary, 1768 to [1805], Volume 19 of the Colonial Records of the State of Georgia, Allen D. Candler, editor (Atlanta: C. P. Byrd, State Printer, 1911), Vol. I, p. 137)).

Under the Militia Act of 1792, each adult was required, by law, to possess a firearm and a minimum supply of ammunition and military equipment. David Barton, The Second Amendment, p. 33 (2000)(citing An Abridgment of The Laws of The United States, William Graydon, editor (Harrisburg: John Wyeth, 1803), p. 293, An Act of May 8, 1792)).

Summary

The Second Amendment is a codification of a pre-existing right, and it includes the right of self defense, defense of the State, repelling invasions and suppressing insurrections, deterrence of same, and defense against and deterrence of tyranny.[9] Heller, 554 U.S. ___ (citing 1 The Papers of Thomas Jefferson 344 n.8 (J. Boyd ed. 1950)). It applies to all citizens of the United States. All citizens should have firearms and ammunition.

Constitutional Carry

In the United States, the term constitutional carry, also called permitless carry, refers to the legal carrying of a handgun, either openly or concealed, without a license or permit. Wikipedia, Constitutional Carry (Mar. 11, 2019). The phrase “constitutional carry” reflects the view that the Second Amendment to the United States Constitution does not abide restrictions on gun rights, including the right to carry or “bear” arms. Wikipedia, Constitutional Carry (Mar. 11, 2019). Indeed, there is no requirement that any state enact any law requiring a permit to carry. Further, there are several, currently numbering fifteen (15) States, of our United States of America, that do not require any permit to carry a handgun. Wikipedia, Constitutional Carry (Mar. 11, 2019). They are the following:

  • Alaska;
  • Arizona;
  • Arkansas;
  • Idaho (residents only);
  • Kansas;
  • Maine;
  • Mississippi;
  • Missouri;
  • New Hampshire;
  • North Dakota (residents only; concealed carry only);
  • Oklahoma;
  • South Dakota;
  • Vermont;
  • West Virginia; and
  • Wyoming (residents only).

Wikipedia, Constitutional Carry (Mar. 11, 2019).

Hence, thirty percent (30%), nearly one-third (1/3) of the States in our Union have no permit to carry a handgun requirement.

Strict Scrutiny

Where a government act or legislation infringes upon a fundamental right, the challenged act or legislation is subject to strict scrutiny.[10] In re Women of State of Minnesota by Doe v. Gomez, 542 N.W.2d 17, 19 (Minn. 1995)(right to privacy is a fundamental right subject to strict scrutiny); In re Linehan, 557 N.W.2d 171, 181 (Minn. 1996)(right to liberty is a fundamental right subject to strict scrutiny)(citing Blodgett, 510 N.W.2d at 914 and 922 (Wahl, J., dissenting)); Skeen v. State, 505 N.W.2d 299, 312 (Minn. 1993). Where a state statute infringes upon the exercise of a fundamental right, the statute is subject to strict scrutiny. See San Antonio Independent School Dist. V. Rodriguez, 411 U.S. 1 (1973)(citing Graham v. Richardson, 403 U.S. 365, 375-376 (1971); Kramer v. Union School District, 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969)).

Under a strict scrutiny analysis, the challenged legislation must be narrowly tailored to serve a compelling state interest. In re Linehan, 557 N.W.2d 171, 181 (Minn. 1996)(citing Young v. Weston, 898 F. Supp. 744, 748 (W.D. Wash. 1995); State v. Post, 197 Wis.2d 279, 302, 541 N.W.2d 115, 122 (1995)). Deprivation or infringement of a fundamental right requires the government to prove the existence of a compelling governmental interest in continuing the deprivation or infringement and to demonstrate that no alternative means are available that involve a lesser deprivation or infringement. In re Blodgett, 510 N.W.2d 910, 922 (Minn. 1994); Mitchell v. Steffen, 487 N.W.2d 896, 903 (Minn. Ct. App. 1992)(statute must be shown to be necessary to achieve some compelling governmental purpose). It must also be shown that the statute uses the least burdensome means of accomplishing its purpose. Mitchell v. Steffen, 487 N.W.2d 896, 903 (Minn. Ct. App. 1992)(citing Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972). A statute affecting a fundamental right must be drawn with “’precision.’” Mitchell v. Steffen, 487 N.W.2d 896, 903 (Minn. Ct. App. 1992)(quoting Dunn, 405 U.S. at 343, 92 S.Ct. at 1003; Shapiro, 394 U.S. at 631, 89 S.Ct. at 1329-30)). Further, where an act is subject to strict scrutiny, the burden of persuasion rests with the government. In re Linehan, 557 N.W.2d 171, 181 (Minn. 1996)(citing Blodgett, 510 N.W.2d at 914 and 922 (Wahl, J., dissenting)). Additionally, “[t]he burden on a state[11] is ‘almost always insurmountable,’ and a statute will rarely survive the strict scrutiny test.” Mitchell v. Steffen, 487 N.W.2d 896, 903 (Minn. Ct. App. 1992)(quoting Eddleman v. Center Township of Marion County, 723 F. Supp. 85, 90 n.10 (S.D. Ind. 1989)). Where the government fails to prove that the statute in question in necessary to promote a compelling governmental interest, the courts must hold that the provisions are unconstitutional.

Herein, the requirement for a permit before exercising the constitutional right to carry a firearm does indeed infringe upon a fundamental right. Accordingly, this statute is subject to strict scrutiny.[12]

Herein, absent obtaining a permit to carry, exercising one’s constitutional rights constitutes either a gross misdemeanor or felony. Such a statute fails strict scrutiny. First, we have a God given, inalienable, right to carry. Carrying in public would simply be the exercise of Second Amendment protected behavior. Then, this statute comes in, and places severe criminal punishment upon constitutionally protected behavior. This statutes imposes severe criminal punishment, up to a year in jail, with a permanent criminal conviction on one’s record, upon constitutional protected behavior, upon a law abiding citizen. This must be struck down as unconstitutional. Granted the purpose of the statute is to have responsible people exercising this right, with perhaps the requirement of a class to prove same. However, absent evidence to the contrary, such should be presumed. Indeed, several states are so presuming, by enacting constitutional carry. Equally important, there are less burdensome measures, more narrow, that could be imposed, and less punitive measures, that could be imposed, to achieve the same result. For example, if a citizen failed to obtain a permit to carry, a civil monetary penalty could be imposed, rather than incarceration, and a permanent criminal record. Or, a requirement to take a class within a certain amount of time could be imposed, with a civil monetary penalty being imposed for failure to do so. For these reasons, this statute fails strict scrutiny and must be struck down as unconstitutional in violation of the Second Amendment.

Also, another example is, a person could lawfully possess firearms in one’s home. Say, for example, they did not wish to have to obtain a permit to carry, they did not wish to have to pay for a class, and pay for a permit to carry, which involves the significant expense of approximately $100 for a class, and $100 for a permit to carry. Then, said person could perhaps witness a person being a victim of a crime, out in front of their house, perhaps on the sidewalk, or in the public street, perhaps of an assault, a robbery, someone breaking into their car, slashing tires, damaging windshield wipers, etc. Naturally, said citizen should aid in the defense of said victim. However, if the citizen carried his firearm outside to defend said victim, he would instantly be either committing a gross misdemeanor or a felony. This infringement is against good public policy, and, infringes upon said citizen’s fundamental right to carry firearms in public, under the Second Amendment of the United States Constitution. This statute needs to be struck down as unconstitutional.

In addition, besides requiring a permit to carry, in order to protect the public from perhaps dangerous people from carrying firearms, there are other ways to protect the public. Indeed, if a person has no criminal record, the evidence suggests that they are not dangerous; but rather law abiding. Law abiding citizens should not have to obtain a permit to carry a pistol. This has historical support. Rather, evidence should first be required showing that they are too dangerous to be allowed to carry. The legislature could thus provide that all law abiding citizens can carry without a permit, until and after they are convicted of certain crimes showing dangerousness, for example, if a person is convicted of a crime involving felonious assault, then, after that evidence exists, then they could be prohibited from carrying in public. In this situation, no permit is required. Law abiding citizens would be allowed to carry in public. And, after a requisite conviction, then they would be prohibited from carrying. If then caught, they would be prosecuted. This would actually also relieve the State from a lot of administrative burden.

In contrast however, under the current statutory scheme, all law abiding citizens are subjected to criminal prosecution, being convicted of a gross misdemeanor or a felony, for simply exercising a fundamental, God given, inalienable, constitutionally protected right. The vast majority of millions of citizens should not be subjected to such an overbroad law.

Accordingly, there are lesser burdensome laws that can be enacted to achieve the compelling interest of protecting the public. Accordingly, the government cannot meet its burden of proof and the carry permit requirement must be struck down as unconstitutional. Again, in this case, the government’s burden is insurmountable.

[1] .            In 2015, the Commonwealth of Puerto Rico’s carry permit requirement regulations were struck down as unconstitutional, eliminating the requirement to obtain a permit. Wikipedia, Constitutional Carry (Mar. 11, 2019)(citing a class action suit brought by “Damas de la Segunda Enmienda,” Ladies of the Second Amendment.

[2] .       The United States Supreme Court has held that the Second Amendment right is fully applicable to the States. McDonald v. City of Chicago, 561 U.S. 742 (2010).

[3] .       “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .” U.S. Const. amend. XIV, §1 (1868). “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U.S. Const. amend. XIV, §1 (1868). Our U.S. Constitution grants privileges and immunities to citizens of the United States, to which non-citizens are not entitled.

[4] .       The Minnesota legislature recognizes that the right to keep and bear arms is a fundamental right. Minn. Stat. §624.714, Subd. 22 (2018).

[5] .       At the time of the promulgation of the Second Amendment, there were statutes that required citizens to own ammunition, and if they did not, they were fined. See below.

[6] .            It should be noted that the type of arms U.S. citizens should be allowed to bear should be determined by what the enemies of the U.S. would have: if our enemies have machine guns (or what have you), then obviously, in order to adequately defend the U.S., U.S. citizens should have machine guns.

[7] .       History shows that each persecuted the other (Catholics and Protestants), and some would say both were wrong.

[8] .             The use of the term “people” should be highlighted, as opposed to using the word army or soldier.

[9] .            That means that citizens would need weapons at least as powerful as those held by our government, since a purpose of the Second Amendment is to be able to deter against governmental tyranny. It therefore follows that type of weapons citizens are entitled to have is not governed by what existed 250 years ago. Rather, under the reasoning of the purpose of the Second Amendment, the type of weapons citizens must be allowed to have are those that would have firepower equivalent or greater than those held by our government today.

[10] .       The legislature of the State of Minnesota declared that review of statutes in section 624.714 are subject to the strict scrutiny test. Minn. Stat. §624.714, Subd. 22 (2018) (the terms of this section must be construed according to the compelling state interest test).

[11] .            The cases requiring a challenger to prove beyond a reasonable doubt that a statute is unconstitutional are not applicable to the instant case. See Mitchell v. Steffen, 487 N.W.2d 896, 903 (Minn. Ct. App. 1992)(quoting Eddleman v. Center Township of Marion County, 723 F. Supp. 85, 90 n.10 (S.D. Ind. 1989)).

[12] .       In addition to case law, the Minnesota Statute herein, explicitly provides that these provisions are to be evaluated under a strict scrutiny analysis. Minn. Stat. §624.714, subd. 22 (2018).

Robbery

CASE LAW UPDATE:  What is the amount of force needed in order to constitute simple robbery?

Pursuant to a bench trial, defendant was convicted of simple robbery.  Defendant appealed.  She argued that the evidence was insufficient to prove that her temporary use of force overcame another person’s resistance.  The Minnesota Supreme Court upheld her conviction, holding that the force element of simple robbery is satisfied the moment an actor uses force for the purpose of overcoming another’s resistance to the taking or carrying away of property, and, that the evidence was sufficient.  Affirmed.

State v. Townsend, A18-0792, Hennepin County, Minnesota Supreme Court.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Check forgery

CASE LAW UPDATE:  Burden of proof shifting by prosecution in offering a forged check trial

Defendant was convicted of offering a forged check. Defendant appealed.  On appeal, she argued that the prosecutor committed misconduct during closing argument by shifting the burden of proof.  The prosecution had commented on the lack of evidence supporting a defense theory.  The Minnesota Court of Appeals held that a prosecutor does not improperly shift the burden of proof by commenting on the lack of evidence supporting a defense theory.   Affirmed.

State v. Flash, A19-1012, Crow Wing County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Civil rights violations

Service of process on County Auditor not effective even with admission of service

Plaintiffs sued the County Auditor for damages in regard to their drainage.  The trial court granted summary judgment in favor of County Auditor on the grounds that service was not effective.  Plaintiff’s appealed arguing that service was proper.  The Minnesota Court of Appeals held that the plaintiff landowner’s personal service on the County Auditor was not effective without an agreement for alternative service, noting that the Auditor’s signature on the admission of service did not reveal an intention to waive traditional service of process, or, the protection of Rule 4.02.  Affirmed.

Gieseki v. Nicollet County Drainage Auth. for County Ditch No. 86A, A19-0955, Nicollet County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

2nd Amendment rights in child custody case

Second Amendment Lawyer Lynne Torgerson wins appeal on 2nd Amendment rights in family child custody dispute

Ms. Torgerson was retained to represent a Veteran in connection with a child custody dispute on an appeal from a decision out of Olmsted County, State of Minnesota.

Ms. Torgerson’s client is an Iraq War Veteran, honorably discharged.  He is divorced.  He and his ex-wife share two children.  He has remarried, and has two additional children from his second marriage.  Ms. Torgerson’s client and his wife are 2nd Amendment enthusiasts.  Ms. Torgerson’s client owns a number of firearms, enjoys target shooting with law enforcement on his extensive land, and enjoys teaching his children gun safety, self defense, etc.  In contrast, his ex-wife opposes all such activities.  Even so, there was no request to limit Ms. Torgerson’s client in regard to firearms.  Notwithstanding, the trial court Referee, sua sponte, issued an order that Ms. Torgerson’s client was required to have all his firearms locked in a safe whenever he had custody of his children.  Accordingly, an appeal was taken, that included this issue.  On appeal, Ms. Torgerson’s client argued that such an order violated his Second Amendment rights.  Indeed, the Minnesota Court of Appeals held that the Referee failed to make sufficient findings, and the trial court Referee’s order restricting Ms. Torgerson’s client’s Second Amendment rights was reversed, and remanded for findings.  Well done Ms. Torgerson.

1st degree controlled substance crime

CASE LAW UPDATE:  Reasonable suspicion is required for a dog sniff

Defendant was convicted of 1st degree controlled substance sale.  Defendant argued that the trial erred in finding that police had reasonable, articulable suspicion to conduct a dog sniff outside his apartment.  The Minnesota Court of Appeals concluded that informant’s substantial history of reliability and officer’s corroboration of defendant’s identity, residence, and truck was sufficient.  Affirmed.

State v. Bravo, A19-0667, Ramsey County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Controlled substance crime

CASE LAW UPDATE:  Aid and abet controlled substance crime

Defendant was convicted of aiding and abetting a controlled substance crime and he appealed, arguing the evidence was insufficient.  The Minnesota Court of Appeals upheld defendant’s conviction on the grounds that (1) the jury could have inferred defendant’s knowledge and intent to further the commission of the crime based on his presence at the scene, (2) his close association with the dealer before and after the crime, and (3) his flight from the scene of the crime with the dealer.

State v. Walker, A19-0546, Stearns County.

Minnesota Criminal Defense Lawyer was not attorney of record in this case.

Probation violation

CASE LAW UPDATE:  Should the trial court have revoked defendant’s probation?

On appeal, defendant argued that the trial court abused its discretion when it revoke his probation because the record did not support a finding that the need for confienment outweighted the policies favoring probation.  The Minnesota Court of Appeals held that there was no abuse of discretion, noting that it was defendant’s 3rd formal probation violation, he had previously failed to complete his ordered chemical dependency evaluation, and, he had failed to demonstrate any meaningful progress in his treatment goals.  Affirmed.

State v. Lehman, A19-1077, Stearns County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Nonconsensual sexual contact

CASE LAW UPDATE:  Order for protection issued based upon wife’s testimony that husband engaged in nonconsensual contact

Wife sought an order for protection.  At the hearing, she testified that husband had engaged in nonconsensual contact.  The trial court issued the order for protection.  The husband appealed, arguing that the trial court abused its discretion in issuing order for protection.  The Minnesota Court of Appeals affirmed, holding that the wife’s testimony was sufficient to establish that the husband had engaged in nonconsensual sexual contact.  Affirmed.

McRunnel v. McRunnel, A19-0971, Norman County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Service of process

Ineffective service of process on sheriff 

Plaintiff attempted to commence a lawsuit against a county sheriff’s department and a sheriff’s deputy.  The process server left copies of the summons and complaint with an employee of the sheriff’s office.  The county and the deputy moved to dismiss the lawsuite for insufficient service of process.  The trial court granted the motion, reasoning that the summons and complaint were not properly served because the county and the deputy had not authorized the sheriff’s office employee to accept service of process on their behalf.  The Minnesota Court of Appeals affirmed.

Eppolite v. Swenson, A19-1073, Chisago County

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Self defense

CASE LAW UPDATE:  A homeowner has no duty to retreat from his own home before defending himself

The law provides that a homeowner is The King of his Castle.

Defendant was convicted of felony 2nd degree assault with a dangerous weapon.  On appeal, defendant argued that the trial court committed plain error when it included a clearly erroneous jury instruction.  The Minnesota Court of Appeals held that a individual does not have a duty to retreat from his home before defending himself.  The Court then held that the trial court’s instruction that the legal excuse of self defense was only available to those who acted honestly and in good faith, including the duty to avoid the danger if reasonable possible was plainly erroneous.  However, the conviction was not reversed because the defendant’s use of force, severely beating the victim with a wooden baseball bat, was not reasonable.  Affirmed.

State v. Onuko, A19-0701, Hennepin County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Sentencing appeal in federal court

CASE LAW UPDATE:  Appeal becomes moot upon release from prison

Defendant was sentenced in his federal criminal case.  He appealed, raising the issue of whether the District Court when it denied his motion to correct or set aside the sentence.  While his appeal was pending, defendant was released from prison.  Accordingly, his appeal is moot.  Appeal is dismissed.

Owen v. United States, 17-3487, appealed from the District of North Dakota, Colloton, J.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Minnesota Second Amendment Lawyer Lynne Torgerson wins gun rights restoration out of Aitkin County

Minnesota Second Amendment Attorney Lynne Torgerson wins gun rights restoration out of the County of Aitkin, State of Minnesota

Minnesota Gun Rights Restoration Attorney Lynne Torgerson won a gun rights restoration case out of the County of Aitkin, State of Minnesota.  Ms. Torgerson’s client was 35 years old.  He owned his own home.  He was a high school graduate.  He had graduated from the University of Minnesota with a Bachelor of Arts degree in Business, and, a Minor in Psychology.  He had obtained a Real Estate License.  He had been employed as a Real Estate Agent for 10 years.  He grew up in a family of hunters who owned hunting land, which he desired to inherit.  He also wanted to enjoy hunting with his family again.  Approximately 14 years earlier, he became prohibited from possessing firearms due to a 5th degree felony possession of a controlled substance conviction.  About 13 years ealier, he also had a domestic misdemeanor harassment and criminal mischief conviction from another State.  Finding good case, the Aitkin County District Court granted his petition to restore his rights to possess firearms.  Well done Ms. Torgerson

Methamphetamine drug charge sentence in federal court

CASE LAW UPDATES:  Minor role reduction of sentence in federal court methamphetamine distribution case

Defendant pleaded guilty to possession with intent to distribute methamphetamine.  After a sentencing hearing, the District Court denied defendant’s request for a minor role reduction, but sentenced defendant to the low end of the applicable advisory sentencing guidelines range.  Defendant appealed the denial of the minor role reduction.  The Eighth Circuit Court of Appeals held that where a defendant knowingly participated as a drug mule, took steps to obtain transportation and to package and conceal the drugs he transported, the District Court did not err in denying a minor role reduction.  Affirmed.

United States v. Benite, 18-3047, appealed from the Eastern District of Arkansas, per curiam.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Sentencing in federal court

Sentence in federal court on revocation of supervised release

Well, as the saying goes . . . Don’t make a federal case out of it.  And for good reason!  They don’t mess around in federal court.

Defendant appealed from a two (2) year prison sentence imposed following the revocation of his supervised release.  On appeal, defendant argued that his sentence exceeded the statutory maximum.

Where the District Court was not obligated to consider or aggregate a prior revocation prison term when imposing a new sentence for revocation of supervised release, the District Court did not err by imposing the statutory maximum of two (2) years.  (No credit for prior time served!).  Affirmed.

United States v. Two Crow, 18-3252, appealed from the District of South Dakota, per curiam.

Minnesota Criminal Defense Attorney Lynne Torgerson was not attorney of record in this case.

Possession with intent to distribute

Confidential informant tip and dog sniff

Gawd! . . . If you ever hear these two phrases in the same paragraph the result certainly can’t be good . . . .

Defendant was convicted in federal district court of possession with intent to distribute.  Defendant’s vehicle was stopped.  A confidential informant’s tip was the basis for the police conducting a dog sniff.  Defendant brought a motion to suppress, which was denied.  The Eighth Circuit Court of Appeals upheld the search concluding that the confidential informant’s tip provided reasonable suspicion for the dog sniff, and that the traffic stop was not impermissibly extended.  Affirmed.

United States v. Harry, 18-2221, appealed from the Northern District of Iowa, Smith, J.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Federal supervised release

CASE LAW UPDATE:  Does defendant get credit on supervised release term for excess incarceration?

Defendant was sentenced to 63 months incarceration.  He served time beyond the 63 months.  The District Court imposed a supervised release term that did not grant him credit for the excess time served.  The Eighth Circuit Court of Appeals upheld the District Court’s judgment on the grounds that prior case law foreclosed his argument and that he was not entitled to custody credit of excess incarceration on a term of supervised release.  Affirmed.

United States v. Walker, 18-3414, appealed from the District of Minnesota, per curiam.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

2nd degree controlled substance crime

CASE LAW UPDATE:  Inventory search of vehicle after valid impoundment upheld as valid

Defendant was convicted of 2nd degree controlled substance crime in Cass County, State of Minnesota.  Defendant challenged the inventory search of his vehicle following its impoundment.  The Minnesota Court of Appeals upheld the inventory search of defendant’s vehicle on the grounds that his vehicle was properly impounded because it was parked, in the middle of the night, on the should of a bridge, near a location where two highways merge, making it a traffic hazard.  Affirmed.

State v. Roybal, A19-0733, Cass County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Minnesota Criminal Defense Lawyer Lynne Torgerson wins not guilty in domestic abuse jury trial

Minnesota Criminal Defense Attorney Lynne Torgerson won a not guilty verdict in a domestic assault jury trial

Minneapolis Criminal Defense Attorney Lynne Torgerson won a not guilty verdict in a domestic assault jury trial in the County of Jackson, Fifth Judicial District, State of Minnesota.  Ms. Torgerson’s client was charged with misdemeanor domestic assault in Jackson County, State of Minnesota.  The case was tried to a jury.  An eyewitness to the crime testified that he did not recognize anyone in the courtroom, including Ms. Torgerson’s client, as the perpetrator.  In a one (1) day trial, the jury found the defendant not guilty.  Well done Ms. Torgerson.

Motion to withdraw plea

CASE LAW UPDATE:  Defendant brought motion to withdraw plea to 3rd degree criminal sexual conduct

Defendant was charged with 3rd degree criminal sexual conduct.  During plea negotiations, the trial court made comments.  Defendant pleaded guilty to 3rd to criminal sexual conduct.  Subsequently, defendant brought a motion to withdraw his plea on the grounds that the trial court’s unsolicited comments during plea negotiations made his plea involuntary.  The Minnesota Court of Appeals held that defendant failed to establish that his guilty plea was involuntary.  Affirmed.

State v. Leason, A19-0876, Hennepin County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Juvenile delinquency case

Adjudication of felony in juvenile delinquency case

Juvenile defendant in juvenile case was adjudicated delinquent in his felony level case.  The trial court then continued his stay of adjudication on the gross misdemeanor case in his juvenile case.  The juvenile defendant appealed these sentence dispositions.  The Minnesota Court of Appeals held that a trial court may exercise its broad discretion to adjudicate a child as a delinquent in a felony level delinquency case while continuing a stay of adjudication in a gross misdemeanor case; a trial court is not required to adjudicate only the least severe delinquency offense.  Affirmed.

In re Welfare of C.A.R., A19-1022, Fillmore County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Criminal contempt of court

What is criminal contempt of court?

Defendant was convicted of three (3) counts of criminal contempt of court in Olmsted County, State of Minnesota.  The Minnesota Court of Appeals reversed two (2) of the three (3) convictions.  The first and only count to be upheld as criminal contempt of court was when defendant spoke directly to the trial court after instruction to remain silent.  It was not criminal contempt when defendant said that all he wanted was for the record to reflect that he would be withdrawing his guilty plea.  When the trial court stated that It was now 60 days, and defendant replied “Thank you.  That’s all I wanted to say,” this latter statement was also not contempt.  Affirmed in part, reversed in part, and remanded.

State v. Link, A19-0711, Olmsted County.

Minnesota Criminal Defense Lawyer was not attorney of record in this case.

Probation violation hearing

CASE LAW UPDATE:  Defendant’s probation was revoked after he was terminated from sex offender treatment

A condition of defendant’s probation was that he successfully complete sex offender treatment.  Defendant was terminated from sex offender treatment and a probation violation was reported.  The trial court found that defendant had intentionally violated his probation.  The Minnesota Court of Appeals upheld the revocation of defendant’s probation noting that the trial court considered defendant’s explanation that he missed his first two treatment sessions because he forgot about them.  The Minnesota Court of Appeals concluded that defendant’s failure to attend sex offender treatment, and his subsequent termination from it, did not occur through no fault of his own.  Affirmed.

State v. Ramat, A19-0895, Anoka County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

1st degree criminal sexual conduct

Video of forensic interview admitted in 1st degree criminal sexual conduct trial

Defendant was convicted of two counts of 1st degree criminal sexual conduct based upon evidence of sexual assault of a pre-teen relative over a period of years.  On appeal, the Minnesota Court of Appeals held that (1) the trial court did not err by allowing the State to play a video recorded forensic interview of the victim as prior consistent statements; (2) that the interviewer’s testimony concerning his observations of the victim during the interview was admissible; (3) that the jury instructions did not violate defendant’s right to a unanimous verdict; and (4) the lifetime conditional release was appropriate.  Affirmed.

State v. Murphy, A19-0322, Hennepin County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Minnesota Second Amendment Attorney Lynne Torgerson wins gun rights restoration in Hennepin County

Minnesota Second Amendment Lawyer Lynne Torgerson wins gun rights restoration in Hennepin County

Minnesota Gun Rights Restoration Attorney Lynne Torgerson wins gun rights restoration case in the County of Hennepin, State of Minnesota.  As a juvenile and teenager, Ms. Torgerson’s client was adjudicated delinquent of 3rd degree burglary.  The incident involved Ms. Torgerson’s client and a friend breaking into a home and stealing between $1000 and $1500.  This disqualified him from possession of a firearm for life.  Now, 20 years later, client sought restoration of rights to possess firearms.  The State did not oppose the petition.  The Court noted that the disqualifying case did not involve firearms, and that client had no firearm related conviction.  Petitioner had obtained his GED, gotten married, and was a responsible, long term employee in oil derricking.  The trial court held that Petitioner was not a danger to public safety.  The Court, The Honorable Susan Burke presiding, finding good cause, granted Petitioner’s request to restore his gun rights.  Well done Ms. Torgerson.

Felon in possession of a firearm sentence

Federal court sentence for felon in possession of a firearm and possession of drugs with intent to distribute

Defendant pleaded guilty to felon in possession of a firearm and possession with intent to distribute.  Because defendant had prior felony convictions, the District Court determined that defendant was subject to an enhanced sentence under the Armed Career Criminal Act.

Where defendant failed to show that he was sentenced under the unconstitutional residual clause of the ACCA, he was not entitled to relief from his enhanced sentence.  Affirmed.

Turner v. United States, 18-2478, appealed from the Northern District of Iowa, per curiam.

Minnesota Criminal Defense Lawyer was not attorney of record in this case.

Petition for postconviction relief

CASE LAW UPDATE:  Defendant brought a petition for postconviction relief to withdraw his plea to failing to register as a predatory offender

Defendant pleaded guilty to failing to register as a predatory offender in the Hennepin County District Court.  Subsequently, he brought a petition for postconviction relief.  He sought to withdraw his plea on the grounds that it was not voluntary and intelligent because he was not informed his sentence could include a conditional release term.  The Minnesota Court of Appeals concluded that any failure to inform defendant of the potential for a conditional release term was not ripe, and, did not invalidate his plea.

State v. Dean, A18-1514, Hennepin County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Probation Violation

CASE LAW UPDATE:  Probation violation held intentional or inexcusable by Anoka County District Court

Defendant was alleged to have violated his probation.  The Anoka County District Court found that defendant intentionally or inexcusably violated the conditions of his probation, and, that the need for confinement outweighed the policies favoring probation.  Indeed, this is the correct legal standard.  On appeal, the defendant argued that the evidence was not sufficient to support the conclusions of the trial court.  The Minnesota Court of Appeals held that the record amply supported the trial court’s determination that defendant both intentionally and inexcusably violated the condition that he complete domestic abuse programming as directed by probation.

State v. Pedersen, A19-1075, Anoka County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Minnesota Second Amendment Lawyer Lynne Torgerson wins gun rights restoration in St. Louis County

Minnesota Second Amendment Attorney Lynne Torgerson wins gun rights restoration in St. Louis County – Virginia

Minnesota Gun Rights Restoration Lawyer Lynne Torgerson won a gun rights restoration case in the County of St. Louis, City of Virginia, State of Minnesota.  Ms. Torgerson’s client, the Petitioner, was now 41 years old, married for 10 years with 2 children.  Petitioner owned his own home.  He had graduated from the Minnesota School of Business with a B.A. in Information Technology.  He had obtained a solid position with a very large employer in his career field.  He had become a hockey coach.  He no longer consumed alcohol, and had stopped about 15 years earlier.  He had good experiences with firearms as a child.  He now wished to get his Second Amendment rights restored, to hunt, to teach his son to hunt, go to the gun range with his Father, and go hunting and shooting with his brother in law.  He had remained law abiding for about 20 years, with a not insignificant criminal history earlier than that, which included burglary, felony thefts, felony DWI.  He then turned his life around and became a productive, law abiding citizen.  Finding good cause, the Honorable Gary J. Pagliaccetti restored Ms. Torgerson’s client’s rights to possess firearms.  Well done Ms. Torgerson.

Child pornography

Child pornography sentence

Defendant was convicted of child pornography.  The trial court imposed three (3) separate sentences for his child pornography convictions.  Defendant argued that the trial court erred in imposing three (3) separate sentences because the State failed to demonstrate that the offenses were committed as separate behavioral incidents or that they involved three (3) different victims.  The Minnesota Court of Appeals reversed and held that the trial court erred by concluding that the crimes involved separate behavioral incidents or that the crimes involved three (3) different victims.  Reversed and remanded.

State v. Kohlwey, A18-1253, Dakota County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Ineligible person in possession of a firearm

Was search warrant affidavit based on stale information?

Defendant was convicted of ineligible person in possession of a firearm in Hennepin County, State of Minnesota.  On appeal, he argued that the information in the application for a search warrant was stale.  The Minnesota Court of Appeals noted that because a tip asserted that defendant was selling large quantities of narcotics, and, a search of garbage that produced evidence that field tested positive for cocaine was done 1 day before the search warrant was issued, the information supporting the search warrant was not stale.  Affirmed.

State v. Williams, A18-1432, Hennepin County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Solicitation of child for sexual conduct

CASE LAW UPDATE:  Defendant’s conviction for solicitation of a child to engage in sexual conduct was supported by sufficient evidence.

Defendant was convicted of solicitation of a child to engaged in sexual conduct.  Defendant argued the evidence was insufficient.  The victim testified that she said her age was 13.  Defendant stated that he was 17 years old.  He asked if they could hang out.  He asked her if she had ever given head, would she ever give head, would she ever give him head, and if she had ever f . . . d a black guy.  The Minnesota Court of Appeals held that defendant’s guilt could be inferred from his words.  Affirmed.

State v. Abdirahman, A18-1296, Carver County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Stalking

Was right to speedy trial denied in stalking trial?

Defendant was convicted by a jury trial of stalking and domestic assault.  On appeal, defendant argued that his constitutional right to a speedy trial had been violated.  The Minnesota Court of Appeals concluded that most of the delay between defendant’s arrest and trial was attributable to him, that he was amenable to two continuances, and discredited him claims of anxiety, whereby his right to a speedy trial was not violated. Affirmed.

State v. Riddle, A19-0222, Ramsey County.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

Second Amendment Lawyer Lynne Torgerson wins gun rights restoration in Ramsey County

Second Amendment Attorney Lynne Torgerson wins gun rights restoration case in Ramsey County

Gun Rights Restoration Lawyer Lynne Torgerson won restoration of rights to possess firearms in the County of Ramsey, State of Minnesota.  Ms. Torgerson’s client, some 22 years earlier in 1998, was convicted of felony threats of violence which arose out of a road rage incident.  This was a disqualifying case.  He received a stay of imposition of sentence whereby the conviction is now deemed a misdemeanor as a matter of law.  Ms. Torgerson’s client is now 68 years old, had been married 43 years, and he and his wife had resided in the home they own for 30 years.  He was a high school and college graduate.  Now retired, his last employment was a fuel delivery driver.  He had completed treatment and had not consumed alcohol in 27 years.  He also does not use illegal drugs.  He now wished to inherit firearms, and visit the shooting range.  The court, The Honorable Thomas Gilligan presiding, granted Ms. Torgerson’s client’s request.  Well done Ms. Torgerson.

Areas of Law

Ms. Torgerson can represent you and your loved one, on the following charges:

appeals, assault, aggravated assault, aggravated robbery, arson, burglary, carry and conceal, check forgery, child pornography, controlled substance crimes, credit card fraud, criminal sexual conduct, criminal vehicular operation, disorderly conduct, domestic abuse, domestic assault, domestic abuse no contact orders, drug charges, DWI/DUI, criminal sexual conduct, detox release, driving after suspension / revocation / cancellation, drivers license issues, electronic communications with a minor child, embezzlement, expungements, failure to register, false imprisonment, fleeing the police, forfeitures, forgery, fraud, freedom of speech, freedom of religion, gun charges, gun rights restoration, habeas corpus, harassment, harassment restraining order violations, homicide, identity theft, indecent exposure, juvenile crimes, kidnapping, manslaughter, murder, obstructing legal process, orders for protection, parole violations, pornography, postconviction relief petitions, probation violations, prostitution, restraining orders, Second Amendment, sexual assault, sex crimes, shoplifting, solicitation of prostitution, terroristic threats, theft, theft by swindle, threats of violence, violation of orders for protection, weapons offenses, white collar crimes, and all other misdemeanors, gross misdemeanors and felonies.