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August 25, 2010

Another notable Second Amendment claim rebuffed by another federal judge

As detailed in this local report, which is headlined "Federal judge orders BB-gun toting woman to serve sentence," the now-familiar pattern of lower federal courts refusing to give broad application to the Supreme Court's recognizition of individual Second Amendment rights is continuing.  Here are the specifics this time around:

A federal judge Tuesday refused to delay a jail sentence any longer for a Santa Cruz Mountains woman who has been fighting to overturn her misdemeanor gun-brandishing conviction with an argument that her Second Amendment rights have been violated.

In a nine-page order, U.S. District Judge Phyllis Hamilton found that Stanford-educated medical doctor Barbara Saldinger is unlikely to prevail in her legal battle and that she should begin serving her 60-day jail sentence immediately....

A Santa Cruz jury convicted Saldinger more than four years ago of brandishing a weapon after she was arrested during a dispute with neighbors in which she displayed a BB gun as she chased them away from her horse farm.  Saldinger and her husband had been feuding with the neighbors for months over the location of the boundary between their two properties.

In appealing her case in the state and federal courts, Saldinger's lawyers maintain that her conviction should be overturned because her conduct is covered by a constitutional right to bear arms to protect property.  Among other things, Saldinger's appeal argues that recent U.S. Supreme Court rulings extending the Second Amendment to state and local regulations entitles her to a new trial.

Hamilton did not rule on Saldinger's federal claims, but did reject her bid to stay the sentence until her case is fully resolved.  The judge called her Second Amendment argument "misplaced," and indicated she does not believe, based on the facts of the case, that Saldinger's appeals will succeed.

Dennis Riordan, Saldinger's high-profile defense lawyer, said the appeal will continue.  Even if she serves her sentence, Saldinger has vowed to try to clear her name....

Deputy Attorney General Gregory Ott, who represented the state, said Hamilton's assessment of Saldinger's chance of prevailing is correct. "The Second Amendment was being thrown out there to make a merits claim," he said. "The Second Amendment doesn't have any application to brandishing."

August 25, 2010 at 09:38 AM | Permalink


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I'm not sure how significant this ruling is. Heller was premised on the right to bear arms for self-defense, i.e., defense of self and presumably one's family.

This is solely a claim to defend property--and a pretty lame one at that. I don't think any court in the land will uphold one's right to brandish a firearm to scare away trespassers unless there is some indication that the trespassers pose a harm to the safety of the property owner--which in no way appears to be the case here.

Posted by: Res ipsa | Aug 25, 2010 10:09:51 AM

I would certainly hope that brandishing on one's own property would be a protected activity, regardless of the provocation. Now, if she were outside the boundaries of her property line you have another case entirely.

Posted by: Soronel Haetir | Aug 25, 2010 10:30:35 AM

A bb gun? Really? 60 days for a bb gun?

Posted by: Ala JD | Aug 25, 2010 11:07:11 AM

Of course Ala JD...you'll shoot your eye out!

Posted by: Res ipsa | Aug 25, 2010 12:10:19 PM

Res ipsa, you little devil, beat to the punch line. Ala JD, I totally agree, a BB gun....The feds goal is to lockup everyone except the higher ups and their buddies....Seems like..

Posted by: Abe | Aug 25, 2010 1:26:12 PM

maybe she should use it and SHOOT THE JUDGE!

Posted by: rodsmith | Aug 25, 2010 1:48:06 PM

"Brandishing" a bb gun seems like charging your neighbor with stalking. "Judge, I'm telling you, every day when I leave for work - there he is!" Sure the basic facts fit, but where is the fear and intimidation factor? btw: down here, no honest person has a bb gun. Your parents know you are old enough for a .22 when you are taller than one.

Posted by: Ala JD | Aug 25, 2010 2:27:54 PM

What, no mandatory minimum for "brandishing" a bb gun? These days she should probably consider herself lucky her sentence is measured in days instead of years.

Posted by: John K | Aug 26, 2010 11:06:46 AM

This shouldn't be a Second Amendment case. To the Framers, the phrase "bear arms," as used in the exclusively militia context of the amendment, meant "provide militia service," not "carry arms." New citizens taking the United States Oath of Allegiance today swear "that I will bear arms on behalf of the United States when required by the law". These new citizens know that "bear arms" means "provide military service" when the context is exclusively about the security of the state or nation. Our courts should know that too.

Posted by: Leif Rakur | Aug 26, 2010 2:29:16 PM

try again lief! the "right to bear arms" was actualy put in the constitution to keep the govt away from the guns because the ONLY reason they even were able to write that document was THEY HAD GUNS! and planned to KEEP THEM.

Posted by: rodsmith | Aug 26, 2010 11:17:09 PM

Just to clarify, the Second and Fourteenth Amendment claims have NOT been ruled on yet in Saldinger v Santa Cruz Superior Court. The federal district court ruling was with respect to a stay request that was denied and the ruling was not rendered by the judge presiding over the case, but by a general duty judge who did not have the trial record.
The trial judge refused to instruct the jury on the law with respect to the defendant's defense effectively denying her a defense which is a violation of due process. Nonetheless, the jury almost hung before convicting on brandishing an imitation firearm. The trial record shows all witnesses agreeing the bb gun was held or carried, not pointed, waved, displayed, raised, shook, nor moved in any way. This is legal activity. The threat made was if they came back, we would take every legal measure to make sure it did not continue. Even if one accepts the opposition's version of if you come back, I will shoot, this is a legal statement because it is a conditional statement and not an immediate threat. There was no accusation of an immediate threat which is necessary to constitute a charge of criminal threats which was not charged. So, therefore, if holding a bb gun is legal and yelling a conditional threat is legal, then the two together cannot be illegal. This is why we will fight this all the way - because no crime was committed and the collateral damage to one's life for wrongful prosecution and wrongful conviction is tremendous.
I am the defendant's husband and I held the bb gun and yelled at them to leave and was not charged with any crime. Finally, I point out that the agitated and spooked horses (caused by both the chain saws and the sudden appearance of people coming out of trees and waving their arms above the horses on the hill) posed a threat to ourselves and the trespassers and it was our imperative in a dangerous situation to try to make sure no one was injured by a bolting horse. The bb gun was being used to get the deer off the hill as they were setting the horses off as well when the trespassers arrived. It was a chaotic situation and we did the best we could under the circumstances imposed on us to prevent injury to people and horses.

Posted by: Todd Saldinger | Sep 2, 2010 7:10:55 AM

well todd your nicer and more easy going than i am. someone i dont' care who shows up on MY property with chainsaws i'm simly going to KILL and then call the police to come remove the trash and under florida's stand your ground law that would be the end of it and i really wouldn't worry about what if any uniform they might be wearing during their criminal tresspass of my property and possible threat to myself or my family. at least not till after they were dead on the ground.

Posted by: rodsmith | Sep 4, 2010 8:57:57 PM

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