Speaker 1: 0:00

Welcome to arrested the only vive and local show that takes you into the belly of our criminal justice system, cohosted by Mike Brooks and Atlanta criminal defense attorney Dan conaway of Conway and strictly pc. Good morning everybody. Welcome to arrested with your host, Mike Brooks,

Speaker 2: 0:17

criminal defense attorney Dan conaway. Or we take a look at at current cases going on and, and just talk about the criminal justice system overall. Well, Dan looks like this past Tuesday, the special counsel Robert Mueller, filed a memorandum recommending a lenient sentence with the possibility of no prison for convicted former national security advisor, Michael Flynn, and stating that Flynn has offered quote substantial help to the investigators about several ongoing investigations. What the hell does that mean?

Speaker 3: 0:57

Well, Mike, uh, it's interesting. It, it means that, uh, Michael Flynn is on the government bus a, as we say in law, he's on and USA as prosecutors would say. Uh, he has, uh, he has been cooperating and according to the Mueller memo, the memo, uh, he has provided substantial assistance. Um,

Speaker 2: 1:21

he, he's rolled on somebody or he's given us. He's given information on maybe a number of other ongoing, maybe criminal, maybe foreign counter intelligence investigations or both, or possibly, yeah,

Speaker 3: 1:37

according to the sentencing memo that says, read the sentencing memorandum today. Uh, it's interesting because part of it is redacted, uh, the main part that's redacted is the part that talks about the cooperation obviously, and the substantial assistance, um, and a substantial assistance is basically broken down into two areas that appears I do not. I obviously have not read the redacted version or the unredacted version, I should say. Uh, the redaction just means that somebody took a black pen and block stuff out that they can't read it. So. But what it indicates is that the cooperation and substantial assistance, it's based upon one a completely separate crime it appears and the whole thing is blocked out so we don't know what it's about. And secondly, a substantial assistance with respect to perhaps collusion amongst members of the trump team. Trump transition team as best as I can make out from reading the memo. But I want to be very clear. I have not read the black, the unblocked out version. So I don't know, but that would be the basic basic from what I've read. That's what I have presumed

Speaker 2: 2:44

now. Collusion. Alright. What is collusion? And it's not, I mean it's not against the law. There is no statute on collusion. Is there. You

Speaker 3: 2:53

know, what's interesting about this case, who's a bit three interesting elements to this case. One is the way that they got mean they being the government got flynn, they used 18 United States code 1001 and that's kind of a catch all provision and basically it says if you make a false statement to the FBI or another investigative agency, you can be prosecuted under this and be sentenced up to five years in a prison or potentially under certain circumstances, eight years and find quite a bit of money, uh, as well depending upon the circumstance. So it has teeth to it. It's a, what I call a practical statute that the government likes to use to get people on their side when they don't really have anything else against them.

Speaker 2: 3:45

So it's almost when they go on, let's say a fishing expedition, and then, you know, they asked you some of these questions and they might know a partial answer to something and then if you tell them something that's not totally the truth, then they can come back on you with this particular statute. Exactly. 18 USC, 1001 is the net that catches the fish, which is why if law enforcement knocks on your door, you keep your mouth shut and you call your lawyer. There you go.

Speaker 3: 4:17

Because the fastest way into the jail cell is who? Your own big fat mouth. Now.

Speaker 2: 4:26

So number one, lawyer up right? Here you go. There you go. Shut up and lawyer because strickler count on his regular three steps. There you go. That's easy. Laura up shut up. Car Instructor. There you go.

Speaker 3: 4:40

Um, because, um, you'll get hammered on this and you can get hammered so easily because it's, it's basically, it's a law that the government really likes to use because then they can flip you into a government witness, which is what they've done with Mr Flynn. So now what?

Speaker 2: 4:57

Financial assistance, right? That, that's it. You know, how much assistance because it also involved in this case, his, uh, his, his former comes former attorney Michael Cohen, Paul Manafort. They're all wrapped into this same collusion investigation, you know, did, did, was there collusion with Russia so far we haven't seen any. But when you, when it comes down to it, you know, it. Since collusion against law, is there a possibility of, of other criminal violations such as obstruction of justice? We don't know.

Speaker 3: 5:28

We don't know yet. Um, but what we do know is that Mueller says, uh, that uh, Mr Michael Flynn has earned what's called a five k, a five k is simply a chapter in the sentencing guidelines book that says that if you provide substantial assistance to the government and it's the government's call, whether you do or not, then you can get a departure down to straight probation on a case. It's called a downward departure from the sentencing guidelines range. Gotcha. Now there's a difference between cooperation, substantial assistance, and want to talk about that for a minute. What is the difference? This is the way I can explain it. Suppose you got two people, you have two guys, let's call him Joe and Joe and James and they're both a car salesman. He harm both. Sell cars in a car dealership. All right, so joe and James come in. Let's start with Joe, right? Joe shows up everyday with a suit and a tie and he shows up 7:00 AM and he works 12 hours a day and he works all week long and at the end of a month he sold two cars. That's John. All right. Think got James James shows up at noon and a pair of jeans and a tee shirt. But this hat on backwards hasn't shaved in three days and he leaves at four in the afternoon and he plays on his. He plays candy crush on his iphone all day. Work with every single day to talk. This is James. Yeah, but at the end of the month, guess what? James sold 100 cars. Okay, so you've got joe who was trying to earn the right, but you only sold two. Got James, who seems like a big slacker, but he sold 100. So who are you? Who provided substantial assistance to you? The car dealership. Mike, what do you think? Who Do you keep? Joe Or James? Well, who's selling the most cars? Exactly. Yeah. So it's the results that matter. Both are cooperating. The bottom line is bottom line, bottom line is you've got to provide substantial assistance. So in this case, that's what happened according to Mueller. So we'll see where this goes. We don't know where it's going to go yet, but we'll see

Speaker 2: 7:39

from reading what you saw of the redacted. It doesn't show any criminality there or does it lead anywhere? I mean w w and y y redacted because of national security. Is it because of, of still an ongoing investigation. Why did they, why did they block everything out?

Speaker 3: 7:59

Oh, the black everything out for two reasons. One is security under certain circumstances. Um, to security for witnesses, security for the defendant, a security for other persons involved too. They don't want to show their cards because the investigation is ongoing and they don't want to explain what their, where their investigation may be going with whom they're talking, who are they investigating all those things.

Speaker 2: 8:24

What will I put out? A white put out a memorandum at all at this particular point.

Speaker 3: 8:28

Oh, because the sentencing is coming up. And so therefore, this is a sentencing memorandum and the government is required to file with the court, uh, a five k letter. Yep. Uh, arguing for substantial assistance. And in this case, Mueller specifically said, uh, this case should not involve jail time for Michael Flynn. So we'll kind of see how it goes. It goes back to the collision point, right? One other point I'll make up on all this is that, to me, this is an n. The flint example is an example of what happens, uh, when you walk into a dangerous situation, the dangerous situation for Flynn was the transition team moment. You had an outsider, trump become president and a lot of outsiders came in and that people wanted that. That's what they voted for him. So that's all well and good. That's all well and good of people's will. Should, should happen there. They wanted an outsider. They did. They were tired of the insider. Yeah. Right. So the problem is, is that when you become, when you come in into a place like Washington dc in the White House, especially, we have all these people, they hate your guts, right? Sure. Seems that way. And then, uh, then, uh, you know, if you don't know what you're doing, you can mess it up very, very easily. Uh, this case is very similar to that in the way that flynn behaved early one and the way that he interacts with law enforcement, he made very amateurs mistakes. Mistakes that have veteran Washington DC insider, not quite frankly, he's a former general right? And he's former general right? But former general versus White House power politics is two different things. Absolutely. All right? So, um, you know, it's a, it's a situation and it's very similar to the courtroom. It's one of the reasons why you need a lawyer when you walk into a courtroom because you're walking into a very dangerous snake pit, if you will, where if you don't know what you're doing, then you can get in serious trouble. And it's easy to bang into things like this. 18 USC, 1001 law.

Speaker 2: 10:44

So let me ask you, with this coming down to, does it seem like that the, that the solar probe into, into ties between president trump's team and, and Russia, does it seem to be winding down?

Speaker 3: 10:55

Uh, it seems to be winding down to some extent. To me, I, um, I obviously I don't have a crystal ball, but I think this last step is a substantial step. Um, and at the same time we do have to compare everything with the person that we do know. Yeah. Colluded with Russians. And that was Hillary Clinton, right? We can talk more about that after the break.

Speaker 2: 11:18

And also coming up on arrested. The Atlanta police department. Well, you know, they have body worn cameras now, whether there's an audit out that says they're not using them properly, that a whole lot more coming up on arrested with your host Mike Brooks and criminal defense attorney. Dan kind of way on the new talk. What? Oh, six seven. This is arrested with Mike Brooks and Atlanta criminal defense attorney. Damn conaway years into arrested with your host, Mike Brooks and criminal defense attorney Dan conaway. We're talking Dan, before the break about, you know, about this

Speaker 3: 11:54

muller probe and we're talking about collusion and we start talking a little bit about, you mentioned Hillary Clinton. Hillary Clinton. Yes. Yes. Um, we already because you asked about collusion, collusion of crime and all that. Right? Exactly right. So now under certain circumstances that, you know, you can argue it is if you don't file certain filings, for instance, if you don't let the government know that you're acting on behalf of a foreign government as a foreign agent. And that was problem flynn ran into. But uh, let's talk about just collision for a minute. Okay. And again, the difference between an insider and an outsider, if you're going to collude with Russians, there is a way to do it and there's a way not to do it. Just this. Okay. A proper way. In an improper way possible. Criminal way. Yeah. Politically speaking. Yes. Alright. So what did Hillary Clinton and the DNC do? And this was in the Washington Post. This was Brooklyn. Got To be law there, you know? Yeah. This was the Washington Post. Uh, it's been over a year, but I believe it's Washington Post. I'm all right. Why did she do? She hired a, her, her law firm. Uh, then her law firm turned around and hired fusion gps. Yep. And then fusion gps turned around and hired steele, whom we know also. No. Also of the steele dossier of the steele dossier. Right. Who's a former British spy, who's job when he was a British spy was the Russian desk, but that's what he did. So he allegedly, but it makes logical sense. Went to Russia because he's for the Russian desk and that's where it's context. Sorry. So then he came up supposedly with all these terrible things about Donald Trump, including people peeing on mattresses and things like that and uh, you know, on and on and on, and we sort of know the rest. But the bottom line is that if you're going to collude with Russians or collude with anybody, you do it through third party investigative agencies. We do the same thing as criminal defense lawyers. Prosecutors do the same thing to you. What you do is your law firm hires, for instance, an investigator, exactly. To go do things right. You don't hire the investigator, you law firm to. Sure. Right. So that's how we work. Those things that you pay. If you're the client, you pay for the investigator, you're sure. Sure. But then we paid the investigator. Gotcha. That's waste privileged. That way if there's any collusion is protected by the legal privilege and also it's perfectly legit because you're investigating the case. Right? So it seems easy enough and you'll notice the Hillary Clinton for her condition. We know that Hillary Clinton through third parties colluded allegedly with Russians. There's a paper trail there, but last time I checked Hillary Clinton is not under indictment yet. We'll see. We'll see. We don't know. We don't know, but that's the kind of. That's how that collusion works. That's the difference between again, being the outsider trying to walk into whether it's the White House or into a where you don't know the lay of the land. Exactly. If you don't know the lay of land, you'll bang into things like 80,000 1001, uh, 18 USC 1001. You're just going to bang on doors.

Speaker 2: 15:03

Exactly. You're listening to arrested with yours. Truly Mike Brooks saying criminal defense attorney Dan conaway. Well, Dan, this week, they're apparently an audit came out about the Atlanta police department and their use of body worn cameras. What we know now that this new city audit that, that came out found basically a systematic breakdown in the use of the body cams and that apparently Atlanta police officers who were wearing them routinely failed to turn the cameras on or the officers shut them off during certain incidents. And the city auditor's also found that officers deleted videos when they weren't authorized to erase them. And apparently there were some videos that had been mislabeled and some of these were of evidentiary value. Now I thought the city had a policy for dealing with these body worn cameras like so many departments around the country do. But it sounds like, you know, um, as Erica shields, the Atlanta police, she said, she says, quote, I'm not happy with this. So what do they need to do? But it apparently the people weren't surprised, but now you know, they conducted this reviews at this review at the chief's request to see a, you know, how the system was going in and as of May of this year, nearly half of the departments, a 1,761 sworn officers were signed body worn cameras while on duties while on duty. Now the cameras, they're attached to the clothing and uniforms with a, with a real strong magnet. Did you put and they'd stay on and I'm, I'm very familiar with the, with these cameras and, and how they work. And they're supposed to be. You're not supposed to be able to. The officer who's wearing the camera is not supposed to be able to delete anything. And this is supposed to be sent to a cloud, this cloud technology. So they, they can erase it. But apparently the supervisors are also at fault here. Number one, a lot of people think that body worn cameras, you know, you, your heard a lot of people, oh, we need accountability to officers and now that they have it, it has, it has worked in some cases, but if the officers aren't turning them on and the in the video's not handled properly because if it's something of evidence that's all in the chain of command, when you're dealing with chain of custody, when you're dealing with evidence, I mean,

Speaker 3: 17:50

what's going on here? Uh, people are people, right? Uh, the officers clearly are not in love with the cameras. Um, as a criminal defense attorney, Mike, I have to say to the Atlanta Police Department, please continue failing to turn on your body cameras. Thank you. As a criminal defense attorney. I really appreciate it. I appreciate the help. Uh, I appreciate the destruction of evidence, the destruction of videos. Uh, these are all wonderful motions that I can find on behalf of my clients. And I'm, I the only people I really feel sorry for her in this situation are the victims in situations where you know, the camera would help them. And also the prosecutors, quite frankly, because what the Atlanta police has really what they've really, what they're really doing here is that you've got technology that is there that can help prosecute cases. Right? Right. And also help decide when a case should not be prosecuted, meaning the prosecutor can review the evidence and say, you know, at this one should not be prosecuting. That's great too. Um, but, but they can also be used to exonerated officer a misconduct. So, I mean, it's all good. Look, as a former law enforcement officer, I wish we had body cameras back in my day. It would make your life easier. Absolutely. And it would have made, it would've made my cases, it was a lot easier as well in. And it's interesting because we had a case, um, I won't talk about the details choice, but we had a case where this exact issue came up last year, case of. And uh, eventually the charges were dropped because we filed evidentiary motions on this exact issue that there was a video that was supposed to exist that had been messed up or doctored with. We didn't know. Nobody could find it. Right. It had been partially destroyed. Ultimately it was thrown out by the judge on our motion to suppress the evidence and it was all because of the camera not working right. In that particular case, I do not believe it was the officer's fault. I want to be clear on that. It was simply a technical glitch. Well, apparently, you know, as chief shields' said that, uh, the department has discipline some officers for failing to follow the department policy on body cameras, but the discipline, it usually occurs after there is a complaint filed against an officer and they go to look for the video. It is not there. Exactly. And the thing of it is, is that the problem you've got is the very simple question of when you have the police that have a piece of technology that they can use to gather evidence and also protect themselves from false accusations. M, Y and Y for goodness gracious, would you turn it off? Well, quite frankly, there's kind of only one reasonable answer and that is that you don't want anybody seeing what the heck you're doing when it comes to a stop or you know, the other thing I could think of because you're not, you don't leave it on all the time. If you get out of the car

Speaker 2: 20:48

and you're going to approach somebody, you turned it on and this particular camera, when you turn it on, you know, the person can see that there's a, a red or a green light on the camera and people know that they're, they're being recorded and they're fairly obviously, you know, they're about the size of a pack of cigarettes or a little bit larger. But this audit, um, it looked at around apparently random sample of about 150 videos from officers cameras. And in more than half of the cases the officers failed to activate or deactivate their cameras at the required time. That's, that's, that's just crazy. So, but the other thing too is you're not, you know, if you're just, if you and I are riding in a car together as partners and we just have, you know, talking about things, personal things you're not going to have the camera on, but still, uh, but I, I think I think that they really need to take a look at the, at their policy and uh, and make a lot of corrections to it because look, I think this is a great investigative tool and, and again, it's there to protect the officer is there to protect the public and it's there to help. So the prosecutor to help the prosecutor and sometimes maybe, maybe even a defense attorney for the most part. Mike, as a defense attorney, again, please Atlanta, please continue doing this. Keep this up. I've already got my motions drafting and we'll be ready to argue over these things in court. Exactly. Well, we'll keep an eye on this and see whether or not the, uh, the, the policies are changed. And, and if things get better coming up, we're going to be talking about the two Iranians that led a cyber attack against the city of Atlanta this year and other entities over the past years. You're listening to arrested with Mike Broxson, criminal defense attorney Dan conaway on the new talk. What? Six seven. This is arrested with Mike Brooks and Atlanta criminal defense attorney. Damn conaway. Thanks for joining us on, arrested with your host, Mike Brooks and criminal defense attorney Dan conaway. And I want to remind everyone also, if you haven't read the book, arrested battling America's criminal justice system by Dan Kahn, away you are missing out. Where is your book available on Amazon, Barnes and noble, and uh, also@wwwdotarrestedbook.com. Picked yourself up a copy. Let me tell you, if you, if you have never been involved in the criminal justice system, you know what, it could be just a matter of time and you want to know what your rights are and how you can protect yourself. Pick up arrested by Dan away today. You won't be. You won't be disappointed. I promise you. Well, recently the two Iranian citizens were basically named in the ransomware cyber attack that, uh, basically shut down Atlanta's computer network in March of this year and, uh, in a federal indictment that outlines the twos massive nationwide scheme to breach computer networks of local governments, healthcare systems and public entities, the, uh, the two. And because I know when I happened to here in Atlanta, it, it basically shut shut city hall down. It totally, exactly. Well, the two defendants fair, Mars shy, he savante 34 years old and Mohammed many shop Mon Sore Montessori Twenty seven, uh, they're alleged to have developed the Sam, Sam ransomware that, uh, that they use to basically hold some cities and hospital systems hostage. Well, just this week, a federal grand jury here in Atlanta has returned an indictment against the two with committed a sophisticated ransomware attack in the city. And as I said in March of 2018 in violation of the computer fraud and abuse act. These guys don't aren't here, but where does a case like this go after the indictments?

Speaker 3: 25:02

What's interesting in this case, there's gonna be two prosecutions at least so far. One here in Atlanta and wanting to New Jersey, um, each handled by their respective districts, meaning the one that let's focus on the one in Atlanta, uh, the one that land will be focused and will be dealt with by the northern district of Georgia, right. And, uh, through the US attorney's office here. Um, and this is a very typical situation with respect to a transnational case where you have defendants from overseas, perpetrators alleged perpetrators of crimes against citizens or persons in the United States. So several issues come up. The first one is, if there's nothing stopping the US government from filing an indictment against someone despite the fact that they're not here. Sure. Right? So beyond that, the issue is how are you going to try to bring these people to justice if you're the US government, right? Uh, at the same time, if you're representing, uh, the individuals, the accused, how do you defend them in that situation? So it's called extradition. Uh, and uh, essentially it works through two different ways. One is with a lot of countries, the US have things called m law treaties, mutual treaties of mutual legal assistance. And a through m ladder mutual legal assistance treaties, they have extradition where they cooperate and work with one another. However, this is Ron. And guess what? Iran has no emulate treaty with the United States. Believe it or not. Yeah, I can believe it. Yeah, absolutely. So, uh, therefore, uh, extradition, uh, maybe quite difficult from there. Uh, I would be surprised if the president, Iranian government were to hand over to the US government. These two individuals.

Speaker 2: 26:52

Now these two, just to remind folks, I mean, it's not like they just hacked into the city of Atlanta. It was city of Newark and that's where the original originated number of years ago, but they are more than 200 victims across the country and they collected somewhere near$6,000,000 in ransom over a three year period dating all the way back to 2015. And there their whole big ransomware scheme. It caused over 30 million and losses to some of the various entities that we were talking about.

Speaker 3: 27:30

Yup. And, uh, and this is a very common situation where you've got a foreign nationals who do schemes such as this and used ransomware to get money out of American companies and American corporations, American entities, government, so, so forth. Um. Oh, and just back the extradition. Sure. The way that these people are likely most likely to be picked up is if they travel outside of Iran, then, uh, they're much more likely to be picked up in a country that has an inlet treaty, uh, and mutual legal assistance treaty with the United Way.

Speaker 2: 28:07

So how does that, how does it work? So let's say these two are indicted now and where they put out a, uh, like an international warranty is done through Interpol. How, how was that? So if they do travel to be picked up by Interpol it would be. Okay. So tell me how that works. I know you've done quite a few of the transplant.

Speaker 3: 28:27

Sure. Yeah. Um, what you do is, um, on a, on our, and let's assume that, um, that, that they're picked up somewhere. Let's say, let's just pick a place, I suppose they're picked up in France. France has an Omelette treaty that your opinion and has an inlet treaty with the United States. So, uh, then, uh, from there, the US Department of Justice through the Department of State will file a request for extradition with the host country, the country holding the individuals. Gotcha. And then from there, there are certain rights that the, the, uh, accused has to respond and there's a process that goes on to determine whether or not they can be extradited to the United States. And this particular case, I don't see any reason why they would not be extradited to the United States. And once they're on foreign soil is an important thing for everybody to understand. When you're in another country, you are subject to that country's laws. So although they're Iranian nationals, right, if they're in France, for instance, they're under French law and therefore French law applies and the French and the United States and the European Union have an inlet treating. So that's how that works. It takes time, but ultimately if they're caught, they will probably be extradited first in Newark and then down to the northern district of Georgia to face charges.

Speaker 2: 29:50

So right now I think that the authorities have said that, uh, looking at some of their, at their travel patterns from the, from the past, uh, they apparently do travel quite a bit, you know, whether or not now

Speaker 3: 30:04

we'll stay up$6,000,000 now. The travel long.

Speaker 2: 30:06

That's right, exactly. Good first class. Uh, but, but the whole thing is a, I guess I, I guess through the State Department and through the FBI, CIA, you know, maybe they can start to track some of their travel patterns, um, friends and associates and some of the other countries. And uh, you know, I mean, is there one particular country that has a better relationship, you know, for, for an extra dining people like these, like these two criminals from Iran or one particular country that we deal with all the time. It's better, you know, that we'll, we for sure will get them extradited back here to the United States.

Speaker 3: 30:44

Dan Trial. Well, certainly, um, you have two possibilities there. One is, I'm sorry, your Western nations, right? A European Union nations, uh, members of NATO, so forth and so forth. They're the most obvious choice, right? But then there's another group too, which is more interesting. And that is, um, let's think Saudi Arabia. Interesting. Interesting. Yeah. Kind of nearby, either in the same neighborhood as Iran. Um, uh, last time I checked a, Saudi Arabia has had some concerns, if you will, with its relationship with the United States because of the, and I hope I'm pronouncing the name correctly because Shuggie

Speaker 2: 31:23

yes, right. The, the Washington Post journalist who was a resident alien living in the Metro Metro dc area, uh, that was lord to the Saudi Arabian embassy in Sdm, bold Turkey and allegedly killed there and then his body spread over. Yeah.

Speaker 3: 31:43

Yeah. So, and under that situation, uh, let's suppose that they traveled to Saudi Arabia than the Saudis that would give the Saudis that nice reason, something nice that they could do for the US, um, and say, hey, you know, here are these two Iranians, um, uh, you know, why don't you, uh, come over and pick them up, hold them. So you have those kinds of considerations because extradition matters and these transnational cases are not just about criminal law and international law. There are also very political cases. There's always underlying currents as far as the relationship to the EU has the USA has with current governments, what the incentives are, things like that, right? So it's an interesting mix in this case, but, uh, they certainly may be detained at some point and deported back. Uh, we'll just have to see. And just one last thought on this is, um, with respect to cyber, with respect to a cybersecurity. All right, I want everyone to listen to this. I want you to liken your computer system, especially if you own a business to your home, you know that the burglar could break into your home. Right? Right. Absolutely. So therefore you take precautions ahead of time. Yep. Okay. So there is a thing called cyber hygiene, the thing called cybersecurity and cyber data protection, so forth and so forth. If you need help with these things, my partner make strickler is an expert on cyber crime and honest cybercrime, uh, she spoken with cyber crime panel panels internationally, specifically on this issue. So if you own a small business, treat it just like you're worried about a burglary, give make strickler, call conaway strickler. And she can help you come up with a preemptive plan just like you're protecting your house. Right?

Speaker 2: 33:30

That is fantastic advice. And if you don't take advantage of that, then it's your own fault. I'm telling you with conway and I know meg and she is a, she's fantastic and much smarter than me. I have to agree with you on that. So coming up on arrested, are you familiar with these red flag laws? We'll, we'll take a look at red flag laws and what states have them now are the constitutional or not. It's arrested with Mike Brooks and criminal defense attorney. Dan kind of way. You don't need to talk one. Oh, six seven. This is arrested with Mike Brooks and Atlanta criminal defense attorney. Damn conaway peerless to arrested with yours truly Mike Brooks and criminal defense attorney Dan away on the new talk. One. Oh, six slash seven. And don't forget to pick up your copy of Dan's book arrested badly. And America's criminal justice system available at Amazon, Barnes and noble and online@wwwarrestedbook.com. There you go. Well, Dan, I was reading recently about these new red flag laws. Why not? I don't know if they're so new, but it seems that that following the Parkland school shooting, that there state lawmakers across the across the country have developed a keen interest, let's say in a previously little known means for separating, um, folks that could be volatile from their weapons. And they're these, they're calling them red flag laws, also known as extreme risk protection orders or gun violence restraining orders that enable law enforcement and sometimes family members and others, other, other concerned folks to get a petition to petition the judge to remove weapons from individuals who may pose a threat to themselves or others. But I see a lot of problems with this law, Dan, and just recently two police officers who were ordered to remove firearms from a house of a red flag protective order, a fatally shot, a man in Ferndale, Maryland while they were going to go get his guns. What do you think about these red red flag laws? Um, I, I don't, I don't know where they came from. And are they legal or constitutional? Um, especially, you know, we're here in Georgia. We're a big second amendment state. I, I don't, I don't, I don't know what these. Tell me what you think.

Speaker 3: 36:14

I think they're completely unconstitutional. They violate both the second and fourth amendment rights of ourselves as US citizens. Um, they mean well, but that's usually where governing government tyranny begins. It begins with well intentioned government officials, well intentioned community organizers who become a bit zealous and they decide that safety is more important than our constitutional liberties. These are this, these laws wrong on so many levels. The first thing is that it's a secret proceeding, uh, meaning that somebody can come and ask for protective order. Right now we're used to protective orders, for instance, in domestic violence cases, right? And they're, they're, they're very useful because a person get a protective order for a limited period of time and then the person has a right to respond. That's fine. You know, that helped. That protects the, the temporary protective order. They're basically worth the paper they're written on it. Well, that's true, but bottom line is that they do give some protection to citizens immediately. So there's a basis for this kind of thing, but here it bangs up against our second amendment rights and our fourth amendment rights to due process. These are secret proceedings for the gun owners are barred from participating in the hearings, are arguing their side of the dispute. So they're not even there. They have no due process. What happens is the first time they hear about this order is when they show up at your house to take your guns. It's one thing you show up with a protective order in domestic violence case. Sure. You know who's filed exactly right? And they say, here's, here's your order. You were hearing within 30 days to address it. Sure. The meantime, stay away from whomever the person is, right? Stay away order. That's easy. Sure. Okay, but this situation, the police are just coming to your door and giving you, handing you an order that you can then later address, right? They come in your house with the order and they come and haul all your stuff out there inside your house. They take your guns, they steal your property. The value that your second and your fourth amendment rights period, no discussion. This is a bad law is exactly the kind of thing that the constitution is supposed to protect us from. And the fact that this individual was killed, um, simply because he refused to give up guns illegally owned. They're ruined his house and his right to privacy and the second amendment rights. And none of that protected him. Instead, the police not only grabbed his guns away from him, but then when he resisted, he end up getting shot. Exactly. And this is a United States citizen. Yup. This is not what our government supposed to be about. So these are bad laws they need to go. It's like the mind, if you remember the show minority report the movie and actually discuss it. My Book Arrested Start Tom Cruise about 15 years ago. The idea was that in the future they could read your mind. Right? Right. And so they would arrest you before you'd actually committed a crime? That's right. Remember minority report, right? Well this is minority report. Somebody says, Gee, uncle Joe's gone a little crazy and he's got three shotguns and for, you know, yeah, a forehand guns. He has guns need to go. And a judge says in a secret proceeding without Joe, their uncle Joe's not there and there's nothing about it. Boom. They say, okay, fine. Here's your order. Go get his guns. And then they come over to uncle Joe and they say, guess what? So and so says you might do something wrong, you might harm yourself, you may be a harm to others. So therefore we're going to steal all your guns. Now, this is just wrong. This is not the way our country works. And how does it, how does it decide how long a, you're a danger to yourself or other. Well, and that's the really, that's the terrible thing. Another terrible thing about this mic is that there's a system in place. If, if someone believes that someone is truly a danger to themselves, right, then the police can't get involved, a civil commitment, right? And they can be committed civilly to him, to a mental health institution for 72 hours, for a period of time, usually 72. Yep. And then they can be held for a period of time, uh, even against their will, if they can prove that he, he or she is really a danger to themselves and other imminent danger to themselves. So they are, you're holding the individual to protect them, their safety and to protect others. And there's a process in place. And I actually did a lot of those cases as a very young lawyer for the Dekalb County probate court years and years ago, back in the nineties. And the process was very good, the person that they were trying to detain and a civil commitment, uh, to receive mental health help, uh, they were there at the process. They had a full hearing. And so there was due process rights were protected and fine. So in this situation, there are laws, there are laws that already exist to deal with this situation. The person can be committed through civil commitment, right? And you don't have to mess with their guns, but you cannot take the property of an individual, especially their guns. Yeah. Because of our second amendment out of somebody's home, simply because somebody decided in a secret hearing where you had no right to be there. That's just wrong, that you might do something with a gun. That's not how our country works right now. Red Flag laws have been enacted in 13 states. There are red flag bill for a proposals right now and three states and 34 states that they know, laws or any act of bills, and one of the latest places that I heard was where I was a cop in Washington DC. They are looking at doing that right now. And remember DC bus where the Heller decision was. That's right back in the day. Yeah. Uh, and this, this issue will go to the Supreme Court. The Supreme Court needs to do the right thing here. This is not a liberal or conservative democratic Republican issue. No. The issue of our fundamental constitutional rights. And remember for everyone out there your rights, this is the way you lose your rights. Absolutely always done with the best of intentions. And it's always done through the mantra of protecting the public and public safety when they say the road to hell is paved with good intention. It same thing here, the road you're getting shot by the police because you lawfully owned guns in your own home is, uh, how is, is what happens when you enact bad, unconstitutional laws? Well, we'll take a look and keep an eye on this as well, Dan, and see if there's any other states are going to enact this one to thank everybody for joining us this Saturday morning on arrested with Mike Brooks and Dan Kennedy will talk

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you next Saturday. Eight am here on the new top. What else? Thanks for listening to arrested with Mike Brooks and Atlanta criminal defense attorney Dan conaway. Well, this show provides general information. It does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. For more information or to schedule a meeting with an attorney, please visit conaway and strickler.com.