Stopping a Driver’s License Suspension After Paying An Alcohol or Marijuana Violation

I have a section on my law office website about Possession of Alcohol by a Minor and other alcohol-related offenses involving persons under 21. Although the offense is only a violation and not a crime, it carries the nasty collateral consequence (there’s also a section on these) of a DMV driver’s license suspension. There is a similar suspension for conviction of the non-criminal marijuana possession offense.

The suspension of a driver’s license, for 30, 60 or 90 days, is often far more devastating a punishment to young people than the fine for an alcohol or marijuana ticket. For a great movie on what a driver’s license means to a high schooler, check out the 1988 Coreys vehicle, License to Drive, which also features Heather Graham.

But what if you didn’t read the website and thus did not know about the driver’s license suspension until after you paid the ticket (police tend to tell offenders that “it’s only an infraction” and don’t mention the driver’s license suspension which is authorized by another statute) when you received a letter from DMV? It actually might not be too late. In some circumstances you can move to reopen the case. If the case is reopened, the conviction is vacated and the suspension is rescinded. You can then fight the ticket or work out an alternative disposition to avoid a conviction which would cause a license suspension. If you are facing a suspension for paying a ticket and wish to reopen it, give me a call. I’ve done it before.

Have a brew–but it might cost you your license if you receive a Minor in Possession ticket and pay it.

What Aaron Hernandez’s attorneys are not telling him.

I love sports. Before becoming a lawyer I was a sports writer. As you already know, I have a great interest in the law. (And no, I did not participate in my law school’s renowned “sports law” program.) So when those two areas collide, I get excited. Except when my favorite teams and athletes are in legal trouble…unless they hire me.

I’m a Patriots fan (I’m also a fan of the Red Sox and Celtics and–while I’m rooting for the Bruins, don’t feel I’ve earned earned it into their fanbase because I was an NHL neutral for so long). Today I was talking to someone from Boston and the subject of Aaron Hernandez came up. As you probably known, the New England tight end is being investigated in connection to a suspected homicide. It is currently being reported that police believe Mr. Hernandez destroyed a home security system, broke a cell phone and hired house cleaners in the past few days. I was asked if I thought that his lawyers told him to do these things. I responded that they probably did not because lawyers cannot legally do that.

Winston Wolf solves problems. He also commits felonies of his own while cleaning up yours.

Lawyers must represent and counsel their clients as zealously as possible within the bounds of the law and ethics. Lawyers therefore cannot advise clients to commit, further or cover-up crimes. Connecticut rule of professional conduct 3.4 provides:

A lawyer shall not:

(1) Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

Lawyers also have a duty of candor to courts, which is one of a few reasons why they cannot allow a client or witness testify falsely. These rules are pretty standard throughout the country. In addition to violating the rules of conduct, lawyers must be cognizant to not violate criminal laws. When an attorney goes beyond giving unethical advice and into actually destroying or hiding evidence, it becomes a crime itself, such as federal obstruction of justice or Misprision of Felony, of which a Connecticut attorney was convicted a while back when he destroyed a church’s hard drive that contained child porn.

Unlike Winston Wolf, Michael Clayton is bound by the rules of professional conduct.

So what can lawyers tell clients who are embroiled in investigations? I would start with, “Don’t say or show anything to the police unless I’m there and tell you to.” With the Supreme Court’s latest chip to rights of the the accused, Salinas v. Texas, issued earlier this week and about which I wrote here, that advice takes on even more importance.

DUI Per Se Hearing victory: implied consent and the administrative suspension process

Last week I defended a client before the Department of Motor Vehicles who was facing suspension for an alleged refusal to take a breathalyzer test. A few days later I received notice that we won the hearing and that her license would be restored. I am now 2-0 in such hearings. The hearing officer found that there was no refusal and that there was not a valid witness to the alleged refusal.

This was not a criminal proceeding. In Connecticut and most other states, drunk driving cases usually occur in two parallel phases: the criminal case and the administrative case. The criminal case is obvious–the arrest and court appearances for a violation of 14-227a, which is a crime punishable by imprisonment. At the same time, at least when someone is stopped for suspected drunk driving, the DMV’s case starts right at the arrest. Drivers licenses are granted by the Department of Motor Vehicles, which is an administrative agency. Sec. 14-227b is the Implied Consent statute, which gives DMV the authority to suspend a driver’s license (or driving privileges for someone not licensed in CT or at all) if he or she fails or refuses a chemical alcohol test following a drunk driving arrest. In short, through the act of operating a motor vehicle in the state, a person gives the state his or her consent to be tested for alcohol by a blood, breath or urine test. This obviates Fourth Amendment issues of the test itself. The stop is another story.

Peter’s idea was to take his driver’s license picture drunk so that when he got pulled over for driving drunk, he would just appear to be in his “normal” state. Peter however did not account for the erratic driving and other factors that would give police the reasonable suspicion they need to stop him.

To stop a car, police need reasonable suspicion that an offense has taken place, is taking place or is about to take place. Following the stop, the police need probable cause to arrest and take into custody a person suspected of driving drunk. Once the person is in custody, the testing rules apply.

A person who takes and passes the test is good to go. Someone who fails or refuses the test will have his or her license held for 24 hours and then face further suspension. For a first offense, a person 21 or over faces a six-month suspension for refusing the test, 90 days for a 0.08 up to 0.08 BAC and 120 for 0.16 and up. The penalties are harsher for subsequent offenses and for people under 21.

Refusal does not have to be express. A person can also refuse by his or her conduct–such as by not seriously attempting the test. Often when the machine does not register a reading, the officer will mark refusal.

Due process requires DMV to provide a hearing (this is the Per Se hearing) to determine whether a suspension should be upheld. DMV must prove four things to uphold a suspension: (1) That there was probable cause to arrest the driver; (2) That the person was placed under arrest; (3) That the person failed or refused the test; and (4) That the driver was operating the vehicle. If any is not proven, the suspension fails and the license is restored. Note that the hearing must be requested and scheduled.

In the last case I had, my client attempted to take the test but was unable to blow hard enough to register a valid sample. We demonstrated at the hearing that she suffers from asthma and, despite her sincere attempts, just didn’t have the air in her to blow. Additionally, there was no other evidence of noncompliance. DMV could not prove that she the test. Her license was restored.

For many people the license suspension is the worst part of a DUI charge because it takes effect early in the process and exists even if they take the diversionary program to avoid a criminal conviction.

Note that alcohol is not the only intoxicating suspense that triggers the DUI/OWI statute. Any intoxicating substance qualifies.

Driving while stoned is also a violation of 14-227a.

Intoxication and motor vehicle operation do not go together. The lyrics to this classic punk song by Murphy’s Law should not be followed but the eponymous axiom usually is: whatever can go wrong, will go wrong.

Drinking and riding: can automobile passengers consume alcohol in Connecticut? The answer may surprise you.

As everyone should know, it is illegal to drive drunk, even in Wisconsin. In Connecticut and every state other than Mississippi, it is also illegal to operate a motor vehicle and imbibe at the same time. Section 53a-213 of the General Statutes makes that a C misdemeanor here in the Nutmeg State. Mississippi is the one state remaining in the country in which a person can drink and drive at the same time provided that he or she is not drunk.

“What state are we in and what are its laws?”

But what about passengers? Can they legally drink in a car? In most states the answer is that they cannot. In Connecticut and a handful of other states, there is no state law prohibiting passenger alcohol consumption. That does not mean that everyone but the driver can be boozing it up on a car ride. It depends on where the car is being driven. Many cities and towns have ordinances against open containers on public roads and in public places. New Haven has such an ordinance: Sec. 18-39 of the Code of General Ordinances. Violations of ordinances are not criminal acts but may carry fines. Additionally, minor in possession laws are always applicable.

This might not be illegal. It can however, still cause some trouble.

Whether it is allowed under the law or not, alcohol and cars do not mix. Drunk passengers may distract a driver and a car that looks like a party on wheels may attract police attention.

Christopher DeMatteo is an attorney who knows about alcoholic beverages, the law and alcohol law. He operates his own practice, DeMatteo Law LLC, 129 Church St, New Haven CT 06510 (203) 815-6299. To learn more about this and other topics visit DeMatteo Law LLC at its website: New Haven lawyer.

Legal Fiction: Sheldon Siegel’s “Special Circumstances” is a legal thriller that emphasizes the legal

Legal thriller novels often lean toward the thrill element over the legal aspects. John Grisham’s novels tend to feature characters being chased and their phones being tapped because every case involves some dark conspiracy. Michael Connolly’s Lincoln Lawyer character Mickey Haller is a great lawyer character whose cases turn into film noir plots. There are many likely reasons for this style–to attract non-lawyer readers, to add excitement, to prepare for film adaption. The technique works. Grisham and Connolly’s books are bestselling page-turners that make good movies.

Sheldon Siegel, a securities attorney turned novelist from San Francisco, has shown with his masterful rookie effort, Special Circumstances, that a courtroom novel can be a page-turner by focusing on the story of investigating and trying a murder case to verdict. The novel introduces the lawyer characters of Mike Daley and Rosie Fernandez to launch their series.

Mike Daley is a former public defender who was a priest before he became a lawyer. He left the public defender’s office to run the white collar crime practice of a prominent San Francisco white shoe firm. When the firm decides to cut him loose, he opens up a solo practice, subleasing an office from his ex-wife and former colleague at the p.d.’s office Rosie Fernandez. Mike immediately picks up his first case when a bigshot partner at his former firm is found murdered in his office with a young associate. Mike’s friend Joel, also an attorney at the firm, is charged with the murder. Adding to the entertainment is that another former partner of the firm was just elected District Attorney and is prosecuting the case.

The Hollywood plot points end there as Daley, who has a witty and wry personality, provides a first-person narrative of preparing for and putting on the defense of his accused friend. He does a good job explaining away the typical legal thriller tropes. Why does Mike only have one case to work on? Because he just started his practice (Perry Mason had the incredible fortune of working on one case at a time, one right after the other). Why is the case going to trial so quickly? Because his client refused to waive his speedy trial rights. Even as the trial progresses, Mike is still unsure of the guilt or innocence of his client who isn’t telling him everything. For much of the novel, the reader is left to be a juror evaluating the evidence presented by the prosecutor and challenged by Mike. Siegel presents the trial through witness examinations peppered with objections and rulings. Unlike many other legal thrillers which have their trials cut short by surprise confessions or additional murders, Mike’s trial goes to verdict.

My favorite legal novel series was the Paul Madriani series by Steve Martini, which is also set in California and shares some similarities with Siegel’s work. After reading Special Circumstances, I will be following the fictional careers of Mike and Rosie as much as Paul’s and Harry’s. That is, when I’m not furthering my own real and fictional legal careers.

Christopher DeMatteo is a real attorney and aspiring writer who owns and operates his own practice, DeMatteo Law LLC, 129 Church St, New Haven CT 06510 (203) 815-6299. To learn more about this and other topics visit DeMatteo Law LLC at its website New Haven Attorney

Stop the Presses’…lack of protection. There should be a federal media shield law.

To any Department of Justice investigators who might have dumped my phone in an effort to figure out this week’s post topic, save yourself the trouble, it’s about the absence of a federal media shield law. One of the big stories in a week that couldn’t end soon enough for the Obama administration is the revelation that the DOJ obtained records of various Associated Press phone lines by subpoenas to the wire service’s phone provider.

As shameful and shocking that the DOJ did this, what is worse is that it wasn’t illegal. Although warrants are required for police to tap phones (to listen to conversations), no warrant is required to obtain the records of incoming and outgoing numbers for a phone line nor to put a trapping device (pen register) to catch those numbers. When you hear TV police detectives talk about “dumping” or “trapping” a suspect’s phone, this is usually what they mean, not putting a wiretap on it. The Supreme Court held in 1979′s Smith v. Maryland, 442 U.S. 735, that such practices are not considered searches and therefore not subject to the warrant requirement. The basic reasoning was that such information does not meet the Katz reasonable expectation of privacy standard because it is information that phone companies already have and is not related to the contents of calls (which is protected).

The Daily Planet’s legal counsel responds to a DOJ subpoena. Government intrusion is the kryptonite of a free press.

The First Amendment guarantees, among many other forms of expression, a free press. This is highly important to a democracy because the people must be informed (although viewers of Fox News and a few other entertainment providers waive that right quite regularly) and journalists must have the ability to do that. The free press protections apply mostly to publication. As the Supreme Court held in New York Times Co. v. United States, 403 U.S. 713 (1971), the infamous “Pentagon Papers” case, the government cannot censor or restrain news publication. A phenomenal quote from that decision:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

Now more than ever–with the technology and mass media we have–the pen really is mightier than the sword. In recent months we have been inundated (through the media) of “Second Amendment solutions” and fighting “tyRanny!!$@%$!” with armed rebellion. A safer and more immediate way to change the government is through voting. A free press enables the populace to fully exercise that power.

While the media are armed with pens, they lack shields. Although the government cannot censor publication, it could require reporters to reveal sources. Many states, including Connecticut, have media shield laws. These laws do not provide absolute protection of news sources, but establish protocol that prosecuting and law enforcement authorities must follow–including providing notice and opportunity for argument to the news medium and requiring the seeker of the information to prove by–clear and convincing evidence in Connecticut courts–why such information must be disclosed. Our law is codified in Conn. Gen. Stat. 52-146t. The federal government and courts have no requirement. An egregious oversight for a government that was bound by the First Amendment since its ratification.

There was a proposal for a federal media shield law in 2007. It was passed by the Democratic House (only 21 representatives, including clown Darrell Issa, R-CA, voted against it) before it was filibustered by a bunch of bozos (Republicans) in the Senate. Illinois Sen. Barack Obama, who apparently cared about this subject in his younger and less vulnerable years, supported the bill. To some credit, the White House just renewed its support for a failed 2009 media shield bill. Congressmen and Senators, put your money where your mouths are and pass this bill.

Journalists’ sources need legal protection. If they suspect that their numbers and a conversations are being monitored, they won’t speak to journalists. If that happens, our news and our democracy will suffer.

DeMatteo Law LLC, 129 Church St, New Haven CT 06510 (203) 815-6299 is a law firm owned and operated by Attorney Christopher DeMatteo. To learn more about this and other topics visit DeMatteo Law LLC at his website New Haven Attorney

Maryland Abolishes the Death Penalty. 18 Down, 32 to Go.

Another one bites the dust. Last week, Maryland Gov. Martin O’Malley signed a bill passed by the state legislature to repeal the death penalty. The Old Line State became the sixth state in six years to repeal its death penalty. Connecticut repealed the death penalty a little more than a year ago. Sort of.

The repeals that are now law in both Connecticut and Maryland prevent the penalty from being imposed. Convicts currently condemned to death still may be executed. Specifically, crimes committed after April 24, 2012 in Connecticut would not be eligible for the death penalty. A recent high-profile case necessitated that quirk for the bill to be passed. Our state Supreme Court will end up deciding whether the eleven prisoners on death row will be executed. It heard the first challenge on April 23 in the case of Eduardo Santiago. It also remains possible for the State to seek the death penalty on a prosecution that begins after April 24, 2012 if the act was committed before that date.

George Appel prepares to ride the lightning in New York in 1928. His famous last words: “Well gentlemen, you are about to see a baked ‘Appel.’”

Maryland’s new law stops death penalty prosecutions going forward no matter when the charged offense was committed. The governor, who has latitude in commuting sentences (our governor does not have such power–that is vested in the Board of Pardons and Parole), says he will review each case individually in addition to the expected legal challenges.

So in the states that repealed the death penalty, horrible murderers will be paroled instead of executed? No. In states that repeal the death penalty, persons convicted of the most severe murder charges (we used to call it capital felony–it is now murder with special circumstances) will receive sentences of life without the possibility of parole, which is what they would receive if they were convicted of the crime but not give the sentence of death in the penalty phase of the trial. Life without the possibility is essentially a death sentence anyway. A convict is locked up and the key is thrown away.

Maryland is now one of eighteen states to no longer have the death penalty (or have some sort of repeal in effect). With most of our country including the federal government still having this penalty as law, there is a long way to go. For many reasons, some I have already written about and others that I can and will write about in the future, the death penalty is unfair and inimical to our rights. The government must both protect the people from crimes committed by other people, and ensure that people’s rights under the law are protected. This is not to be a balance. Both objectives must be satisfied fully and fairly. Life without parole is the least restrictive means to punishing the worst criminals and protecting the public from them. A prisoner will never be free to hurt again but will remain alive to pursue the legal remedies available to him–such as clemency or a claim of actual innocence. Kirk Bloodsworth, whose name couldn’t have helped him at trial, was sentenced to death in Maryland in 1985. In 1993, he was released when his innocence was reestablished by DNA testing, becoming the first person to be exonerated from death row by DNA evidence. He wasn’t the last. Since 1973, 142 people have been exonerated and freed from their sentences of death.

Dzokhar Tsarnaev Informed of His Rights…Our Rights.

Following the capture of Boston Marathon bombing suspect Dzokhar Tsarnaev, many media members and armchair attorneys beat ourselves up over whether Mr. Tsarnaev would and should be given his Miranda rights by the investigators and prosecutors before they attempted to question him. The “public safety” exception that was articulated in New York v. Quarles, 467 U.S. 649 (1984), was cited as authority to question him before he was given his Miranda rights and still use those statements against him at trial.

Some quick background on Miranda. As I wrote in my Sound of Silence post last week, the Miranda rule, rooted in the right against self-incrimination, requires law enforcement authorities to advise a suspect in custody that he or she has the rights to remain silent and to consult with an attorney before questioning. The Miranda warning does not have to be given at the time of arrest (as it is for nearly every TV arrest) but only before the suspect is questioned. The remedy for a violation is that the statements obtained absent the confession cannot be used at trial against the defendant. Very often the government can prove a defendant’s guilt without a confession. Ernesto Miranda for one, had his original conviction overturned in the case that led to the rule which now bears his name, but was convicted again in his second trial without his confession in evidence. (After he was released from prison, Miranda made some money autographing Miranda rights cards.) Whether he was advised of his rights or not, these are rights that Mr. Tsarnaev always had. These are rights that we all have in our criminal justice system.

Once counsel attaches, a defendant cannot be questioned without the consent of his or her lawyer.

Mr. Tsarnaev was advised of his rights by a federal judge in his initial appearance, which was held yesterday in the hospital where he is being treated for his injuries. The right to counsel attaches at this hearing and the court appointed a federal (public) defender to represent Mr. Tsarnaev in that and subsequent proceedings. Since he is represented by counsel, he cannot be questioned by investigators or prosecutors without his attorney’s knowledge and presence. This right is based in the Sixth Amendment (incorporated on the states by the 14th) right to counsel. All persons charged with a crime have the right to effective counsel. Now that he is charged with various crimes, Mr. Tsarnaev has will be afforded such representation. The court advised him of this right as well as his Fifth amendment right against self-incrimination. Read the transcript of that hearing below:

Transcript of Dzhokhar Tsarnaev's bedside hearing

If you followed me on Twitter the past few days (if you don’t follow me, do so here), you’d see that I was in the camp to inform Mr. Tsarnaev of his rights before any questioning. I am skeptical of any expansion of existing exceptions to rights and protections because these are all of our rights.

We’re done here.

A Nation of Zapruders

Abraham Zapruder was ahead of his time. Nearly fifty years ago the Dallas clothing manufacturer fired up his Bell & Howell 8mm camera to make a home movie of Pres. Kennedy and his motorcade passing through Dealey Plaza. He would up recording the most famous 26.6 seconds of footage in history.

Video equipment in 1963.

The Boston area, New England and much of the country spent five day days in terror and confusion as everyone searched for whoever was responsible for bombing the finish line of the Boston Marathon on Monday. By everyone I mean literally everyone. Law enforcement personnel requested and received a monstrous amount of photographic and video data from anyone and everyone who had it. Nowadays with nearly every person carrying a cell phone with a camera and many more using actual digital cameras, which can take a lot more pictures than film, there was plenty to look at. There was also surveillance tape from the businesses, most notably a Lord & Taylor store which turned out to be the most significant footage leading to the identification and capture of the suspects.

One point that had been reverberating throughout the week is that in this day and age, with the prevalence of recording technology, we are constantly under surveillance even without knowing it. Surveillance not by Big Brother but all of our brothers, sisters and cousins. We are all watching one another. Not that there are many complaints–as I wrote last week in my social media and evidence post, people freely divulge personal information and photos over the Internet.

Fears, of surveillance at least, may be exaggerated. Sure there were many pictures being taken at site of the bombing, but that should be expected at the finish line of a top sporting event. Even at the 1963 Marathon there were people with Instamatics and other cameras. There was probably even a Boston Zapruder (named Sully) with a home movie camera. Additionally, being in a public place, you are always subject to the observation of many people even without being recorded and preserved on film and SD cards. Technology just preserves it. Chris Hayes asked on his show in the middle of the week, what if one of the pictures sent to the FBI revealed someone smoking a joint? Although that wouldn’t law enforcement’s priority (ignore that criminal classification of marijuana for a minute), it is true that the police could go after the Boston joint smoker with that evidence. I doubt many people would be motivated to identify him or her but it’s possible and would be legal because there isn’t any Fourth Amendment protection for things exposed to public view.

2013 video equipment.

What we have to worry about isn’t the taking of pictures (most of the time no one is taking pictures of your commute to work or buying a hot dog anyway) but the posting and interpretation of that data. Because computers and Internet are every bit as prevalent and accessible as cell phones (often with their own Internet), there was a huge amount of amateur sleuthing making the rounds online. Users of Reddit, 4Chan and other online communities analyzed uploaded pictures in efforts to help find the bombing suspects. There was also, unfortunately, a lot of misinformation making the rounds, some of which was picked up by the news media. A gossip rag in New York ran a picture on its front page of the wrong guys. Fortunately they weren’t harmed. But what if they were? There’d be another tragedy.

Cyber sleuthing could very easily have led to a cyber (and perhaps an actual) lynching. Remember Richard Jewell? He was the former security guard who became a media suspect of the 1996 Olymmpics bombing. He was exonerated but had his life ruined. Now, in addition to the technology we have available to gather information, technology allows news to travel faster. It also allows gossip and incorrect information to travel faster as we saw quite a few times this week. We should all be grateful that the FBI and local police conducted a solid investigation that will place a suspect into our criminal justice system. We should also be be grateful that vigilantes, relying misinformation, didn’t cause any further injustice.

We are all fortunate that we have technology that can protect us and our rights. We must also however be mindful that the same technology can destroy us. I expect new life to be breathed into our common law torts that deal with privacy and defamation. Until then, let’s enjoy the relief. The Sox, Bruins and Celtics are all in action today.

Stay #BostonStrong, my friends.

Hats off to the auteur who captured Big Papi speaking freely. Why the news can show human carnage on a city street while “This is our fucking city” is bleeped out…that’s a post for another day. This is our country.

Stuck in Second

Proposed gun laws were shot down in the Senate lastnight. The most significant and the one thought to have the best chance of passing was the one that would have mandated background checks for the sales of firearms by private sellers (i.e. individuals, not stores). Laws regulating firearms are immediately controversial in the United States where we have the Second Amendment to our Constitution. The question is always whether a measure violates rights secured by that amendment. Based on our current law, a background check requirement for all firearm sales would likely be Constitutional because it would not erode the established rights to possess firearms. This post only deals with the legality of federal background checks; not the other proposed measures in Congress or those passed by individual states.

Stores are already required under their federal licenses to perform instant criminal background checks on customers attempting to purchase handguns. 18 U.S.C. 922(t). Some people are by law prohibited from possessing firearms–most notably felons–and the background checks are designed to stop sales to them. That requirement is only for licensed firearms dealers. Individuals are allowed to buy and sell firearms in much the same manner as other used items provided they are not doing so as a business. Since they are not licensed dealers, they do not have the license-required background check obligation. The private sale background check proposal, which appeared in a few different drafts, was intended to prevent people who are prohibited from possessing firearms and unable to buy them in a store from being able to get them at gun shows and/or from private sellers.

The licensed gun dealer background check requirement has been upheld as Constitutional. A similar requirement on private sales would most likely also be upheld as Constitutional because it does not impact individuals’ rights to own and carry firearms. The requirement would only prevent possession that is already Constitutionally barred.

Felons are already prohibited form possessing firearms by federal and state laws. See 18 U.S.C. 922(g); Conn. Gen. Stat. Sec. 53a-217. These laws, known as FIP (felon in possession) laws, have been held to not violate the Second Amendment. The Supreme Court, in a majority opinion written by Scalia, asserted in District of Columbia v. Heller, 128 S.Ct. 2783, 2817 (2008)

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.

That was not a holding but does imply that such laws are Constitutional. Federal circuits and state supreme courts have explicitly held FIP laws to be constitutional. The usual reasoning is that such possession is not protected by the Second Amendment or state constitutional provisions. See e.g. United States v. Pruess, 703 F.3d 242 (4th Cir. 2012).

Background check requirements do not create new prohibitions on firearm possession. They serve to enforce existing, accepted prohibitions. While they may cause slight inconvenience in the buying or selling of firearms, inconvenience is not the same as the infringement of a right, especially since most sales are already subject to background check requirements.

“And this is for shooting down police helicopters. The Senate just filibustered a bill to ban it.”

I support background checks for all sales because I think it would be an effective and minimally restrictive measure. We know that the high majority of gun owners do not use their weapons for illegal activity. Laws should thus focus on preventing guns from falling into the wrong hands. Unlike drugs, guns are not made in secret labs but in factories. To get from a factory to a criminal activity, a gun must pass through some hands, some of whom are legal sellers or owners. Background checks for all sales would make it more difficult for criminals to obtain guns without banning things.

How would the Supreme Court really rule on a universal background check law? We will probably never know. How would such a law impact firearm-related crime? We will likely never know that either.