Tag Archives: 9th Circuit Court of Appeals

San Diego Cop Who Committed Perjury Exposed by His Own Body Cam Video

San Diego Police Officer Perjury Body Camera Homeless Citation

San Diego Police Officer Colin Governski’s own body cam video exposed that he had committed perjury while testifying against a homeless man.

In August of 2015, Officer Colin Governski of the San Diego Police Department was in the process of harassing some homeless people who were camping near a beach. Shortly after, Governski saw another homeless man, Tony Diaz, come out of a nearby bathroom.

He then began accusing Diaz of living out of his truck and after initially indicating that he was warning him about doing so, he quickly decided instead to give him a citation. That citation was based on a San Diego law that prohibits people from living within a vehicle that is parked on public property.

In court, Officer Governski testified that he had caught Diaz sleeping inside the back of his truck. However, Diaz maintained that he was just using the bathroom prior to going fishing at the beach. He also stated that a friend allows him to park on their privately owned property overnight. In spite of his insistence that he had not been sleeping in his truck at the time, based on Governski’s testimony, Diaz was found guilty of “vehicle habitation” and fined $280.

Later, the lawyer representing Diaz filed an appeal of that conviction in order to challenge the constitutionality of the ordinance against living in a car. A similar law in Los Angeles had already been struck down as unconstitutional by the 9th Circuit Court of Appeals in 2014.

During the appeal process, it was discovered that Officer Governski had been wearing a body camera that day. (See video embedded below.) The unnecessary arrogance and mean spirited nature of the harassment shown on that video is appalling by itself. More importantly though, the body cam footage clearly showed Diaz was walking out of the bathroom and not sleeping in the back of his truck when Ofc. Governski first encountered him.

As a result of the contradiction between Governski’s testimony and what’s shown on the video, the conviction was reversed. However, Governski has yet to be charged with perjury. And it’s not because he doesn’t warrant such a charge. During the original trial, Governski had lied directly to the judge while under oath when he was specifically asked several times if Diaz was sleeping in the back of the truck when he found him. For anyone without one of those Magic Uniforms, that’s a felony.

This wasn’t even the first time he was caught lying and filing false charges to harass someone, either. In 2014, the taxpayers of San Diego were forced to pay $15,000 to another homeless person Governski had falsely arrested. On top of that, he had also violated SDPD policy by not noting on the citation that there was body camera footage available, which is why it wasn’t presented at the trial.

Nobody should hold their breath waiting for Officer Governski (or any other cop) to be charged with or in any meaningful way punished for perjury, regardless of how obvious and outrageous the lies they tell are. In fact, the San Diego City Attorney’s Office indicated that they had not even reported Governski’s conduct to internal affairs or his supervisor when asked by his attorney.

Of course, as Tony Diaz’ attorney, Coleen Cusack, pointed out, if they will lie about such a minor citation what won’t they lie about? For the sake of yourself and anyone else you see being harassed or abused by the police,  film the police.

 

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9th Circuit Appeals Court Rules Federal Government Can Ban Medical Marijuana Patients From Buying Guns

This week the 9th Circuit Court of Appeals, located in San Francisco, ruled that a ban by the Federal Government on the sale of firearms to medical marijuana cardholders does not violate the Second Amendment. The ruling was made in regard to a lawsuit by S. Rowan Wilson over her attempt to buy a gun in 2011.

Wilson, who is a resident of Nevada, was denied by a gun store based on a federal ban against sales of firearms to illegal drug users. In spite of state laws allowing for medical use of cannabis (and recreational use in several states at this point), the Federal Government still considers it illegal. Therefore, medical marijuana patients are considered illegal drug users.

Via the Las Vegas Review Journal:

The 9th Circuit in its 3-0 decision agreed that it’s reasonable for federal regulators to assume a medical marijuana card holder is more likely to use the drug.

In addition, a ban on the sale of guns to marijuana and other drug users is reasonable because the use of such drugs “raises the risk of irrational or unpredictable behavior with which gun use should not be associated,” Senior District Judge Jed Rakoff said.

The 9th Circuit also rejected other constitutional challenges to the ban that were raised by Wilson.

The lawsuit made several constitutional challenges to the ban. Some, such as that it shouldn’t be assumed that someone holding a medical marijuana card actually use marijuana, were less than compelling arguments. (Wilson says she actually isn’t a marijuana user, but attained a medical card in order to show support for the legalization of marijuana.) Others, such as that it deprives patients the right to bear arms as the Second Amendment guarantees without due process, are not only more valid arguments, but also highlight some of the inherent flaws of medical marijuana laws.

In terms of the lack of due process, although alcohol and drug abusers are also banned from buying weapons, they have to have an actual history of having done so. This means that the mere fact that someone drinks or uses prescription drugs cannot be the basis for them to be denied the sale of a gun. This brings up the issue of HIPAA laws in relation to medical marijuana. Normally, someone having been prescribed a medication would be protected by HIPAA regulations from that being disclosed publicly. However, those being prescribed medical marijuana are listed on a database that can be accessed by others beyond their personal medical providers including members of law enforcement.

What this effectively means is that someone who has been prescribed opiates or other much more dangerous and addictive drugs is still afforded due process before their gun rights are taken away. They still have to have a record of abuse in order for that to become a justification to deny them a firearm. Medical marijuana patients, however, can be denied simply based on the fact that they are patients.

In Nevada, the medical marijuana cards are issued by the Department of Motor Vehicles. That means anytime someone is pulled over for a traffic violation the police officer pulling them over is going to be more likely to assume they are under the influence based on them being a patient. Medical marijuana patients are also banned from acquiring a concealed carry permit. In addition, anytime a firearm is used if the person having used it is a medical marijuana patient that is considered probable cause for police to test them for drug use.

Since there isn’t yet an accurate test for impairment from marijuana use (and because it’s hard to predict when exactly you may need to defend yourself) that places patients in position of deciding whether they want to have the option of the legal use of marijuana to treat their medical issues or risk being unable to defend themselves or risking harassment and possibly even a false DUI charge every time they drive. In a roundabout way, this actually makes people suffering from chronic pain more likely to use and become addicted to opiate-based drugs.

This case will continue through several more levels of appeals, including a ruling by the full 9th Circuit Court, however it represents yet another back door effort by the federal government to restrict constitutional rights.

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Ninth Circuit Court Rules Concealed Carrying of Firearms Not Protected by Second Amendment

Earlier today, a California appeals court upheld the state’s law that imposes permits and restrictions on the carrying of a concealed weapon in public. The Ninth Circuit Court, located in San Francisco, overruled a previous decision in “Peruta v. County of San Diego” by three members of the court that California’s requirement for citizens to show “good cause” in order to qualify for a concealed-carry permit violates the right to bear arms protected under the Second Amendment of the US Constitution.

Via the New York Times:

The 7-to-4 ruling by the United States Court of Appeals for the Ninth Circuit, in San Francisco, overturned a decision by a three-judge panel of the same court and was a setback for gun advocates. The California law requires applicants to demonstrate “good cause” for carrying a weapon, like working in a job with a security threat — a restriction sharply attacked by gun advocates as violating the Second Amendment right to bear arms.

“Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public,” the court said in a ruling written by Judge William A. Fletcher.

The case was brought by gun owners who were denied permits in Yolo and San Diego Counties. The plaintiffs did not immediately say whether they planned to appeal to the United States Supreme Court.

“This is a huge decision,” said Adam Winkler, a professor of constitutional law at the University of California, Los Angeles, School of Law. “This is a major victory for gun control advocates. “

Gun control advocates are hailing this as a giant win, while gun rights advocates and strict Constitutionalists are calling it a major infringement on the rights of citizens to defend themselves. In fact, this is even being characterized as one battle in the next war over the potential regulation of gun ownership and use.

Jonathan E. Lowy of the Brady Center to Prevent Gun Violence said, “Probably the most important battleground of the Second Amendment has been whether there is a right to carry guns outside the home, and if there is, to what extent can states and localities regulate that right.”

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