Sheriff Shayne Heap, likely weary from a long fight against the Black Forest Fire, spent the day in federal court attempting to defeat legislation he believes threatens the 2nd Amendment Rights of his constituents. Here's a copy of the initial injunction requested by the Sheriffs.
An injunction is a court order that prevents something, whether it is the possession of property or rights, or an action.
A motion is a request of the court. It must be founded upon legal argument.
A preliminary motion is made before any other motion in the court, asking the court to take action before anything else is considered, and any defense is made. They are rarely granted.
Arguments. There are four kinds of legal arguments, one for each kind of law in the United States: court precedence (previous court cases that decided an understanding of the laws of the People, or the laws of the Legislatures), constitution (the law of the People, which is visible by the limitation of the rights of the Government or preservation of the rights of the People), statute or regulation (the law of the Legislatures which is visible in the utilization of those authorities granted by the People for the execution of the law), and court rules (the law of the court - the process of justice, or the method in which courts function).
WHAT WILL HAPPEN NEXT?
After a motion is made, the opponent has the opportunity to "respond," and then the proponent has the opportunity to "answer." Supplemental responses and answers may be made.
It is very rare for a preliminary injunction to be granted.
TRANSLATION OF THE MOTION FROM LEGALESE INTO ENGLISH
In this injunction requested by the Sheriffs, the legal argument is based upon Federal Rule of Civil Procedure 65 (notice in the motion’s first paragraph). The lawyers for the Sheriffs have attempted to secure the injunction by limiting its enforcement until trial – a ruse that is common and as necessary as it is typically ineffective.
In Part I notice that the Sheriffs had to offer the privilege of objection to the Governor first. This is a common procedure – it is the privilege of the Governor to fight the legislature and check their progress. When Governor Hickenlooper refused his privilege, the Sheriffs gained the opportunity to challenge the legislature.
Part II functions as a kind of brief. A brief informs the Court to the grounds of argumentation, providing both practical and legal basis for a claim. Here, the Sheriffs argue largely in practical terms, asking the Court for relief from onerous requirements of the Legislature. Framing those onerous requirements against the legal grounds that the statute is too vague, the Sheriffs avoid the impossible argument that the law itself is unconstitutional.
The People of Colorado, in 1877, granted authority to the legislature to limit or prohibit non-militia use of weapons. The choice to avoid a constitutional argument is a highly tactical one, and may preclude an easy appeal to the Supreme Court while facilitating a speedy resolution in Federal Court.
In Part III, the Sheriffs undertake the formality of reminding their opponent and the Court of its jurisdiction and requirement to act to defend the interests of the Sheriffs. To do so, they remind the Court of when it has done a similar service in the past, in this case, in Kikumura v. Hurley. To remind the Court of this case, they use a system of citation common in the United States Courts: book and page number with reference to which Circuit Court and year the book is found in: all cases are catalogued in books (see it in the actual motion? “242 F.3d 950, 955 (10th Cir. 2001)”)
The Sheriffs then remind the Court of their obligation to interpret or vague language in laws, and point out the vague language.
Finally, the Sheriffs urge the Court to exercise its jurisdictional authority by insisting that they will suffer immediate and irreparable harm – the only grounds for an emergency injunction such as this preliminary injunction. To do so, they do not rely upon the strength of their own argument, but upon the precedent cases of the United States, saying “Violations of enumerated constitutional rights are per se “irreparable injury” in the Tenth Circuit. Pinson v. Pacheco, 397 Fed. Appx. 488, 491-92 (10th Cir. 2010) (Eighth Amendment); Edmisten v. Werholtz, 287 Fed. Appx. 728 (10th Cir. 2008) (Eighth Amendment); Kikumura v. Hurley, 242 F. 3d 950, 963 (10th Cir. 2001) (First and Fifth Amendments).
With such argument, it is only necessary for them to say that July 1st is imminent, and the date the new legislation becomes effective.
But the lawyers for the Sheriffs go a step further and anticipate arguments from their opponent, and proceed to argue that any damage to their opponents by temporarily preventing the exercise of their apparent authority will be outweighed by the damage to the Sheriffs, and that preventing the exercise of their opponents’ authority to limit large capacity magazines is not contrary to the public’s interest.
Here the Sheriffs tread on thin ice and take a big risk. If they present too much argument in favor of the public’s interest, they may undermine their own case for a preliminary injunction and their case entirely. If the Judge finds that it is in the public’s interest to allow the ban to occur, the Sheriffs will be at a disadvantage for the remainder of the case.
Against this risk, understanding the vital importance of this preliminary injunction, the Sheriffs remind the Court of the strength of their argument, that the language of the statute is very vague, and assure the Court that their opponent cannot prevail against such argumentation as this. The terminology of the new statute utilizes terms that have not been defined yet by this or any other Court, providing credible reason to believe it is vague – or at least subject to review and declaration.
Why did they take this risk? If they did not, it could endanger their case also: the effective enforcement of the statute would demonstrate beyond a doubt that it is not vague in language, forcing a constitutional challenge for the Sheriffs – a challenge which, because of the unique Constitution of Colorado, would remain tenuous upon the grounds of a superseding and already highly interpreted US Constitution that allows States to limit private ownership of weapons.
MEADOWLARK HERALD ANALYSIS
The argumentation of the Sheriffs is weak, but considering the weak grounds by which they are challenging the law, does provide concern to their opponents which should not be discounted too severely.
The reliance upon the right, pursuant to Rule 57, to definition and declaration of terms that have not yet been defined and interpreted, will secure the Sheriffs at least the opportunity to weigh in on how the law should be enforced. Which was the goal of the lawsuit.
The attorneys for the Sheriffs, which include some of the very best of Colorado, representing a variety of government and private interests, include David Kopel, Richard Westfall, Jon Anderson, Marc Colin and Anthony Fabian. They are facing not only the State of Colorado’s best attorneys, but excellent attorneys from the private sector as well. The numerous masters indicate the likelihood of a predictable, if not vicious, strategy from both sides..
Labels: Gun Control and Violence
The Calhan market continued to experience high volumes of livestock, with the sellers largely unable to bear the bully buyers. The price of sheep has dropped 1/6 over the last few months as pastures become fully stocked, and the price of butcher hogs has fallen even more considerably. Cattlemen, however, are proving the exception, bearing up against the buyers: seller optimism is fueled by the promise of abundant hay in the area, and already depleted herds. This optimism is also seen at the local feed stores, where as a rule hay sales have recently plummeted, indicating sufficient pasturage..
Please subscribe to the Meadowlark Herald! We rely on your support to continue publication.
There's a great issue this week!
Rev. Kev and his outlaw church tango with Elbert County due to alleged zoning violations. They were not the first to be targeted by Elbert County, nor will be the last, but did prove their innocence - despite a damning confession by a fellow Christian - because a certain witness could not be found.
Baby owls, a review of the best place to get your nails done, an interview with Kevin Bullard, David Brachfeld invents a green way to heat your pool, meeting Bubbly the rescue dog, a striking hour in Elbert County District Court, identifying and using Orach, the importance of awareness to surviving cancer, introducing Nichiren Buddhism, and much much more!
Labels: Print Archives
William Melancon, an artist and a veteran, painted this depiction of PTSD, and granted me the opportunity to interview him.
Brachfeld: what does the symbolism of the picture means?
Melancon: The primary subject of the painting is the veteran, who is stuck in emotional turmoil. I wanted to show the thoughts of the subject projected onto the wall behind him, and the effects those memories have on him. In this way a major inspiration for the piece is "reflections" by Lee Teter, which features a Vietnam veteran and his memories at the Vietnam Memorial in Washington. The Helmet and rifle memorial is an instantly recognized symbol in the military community, showing that this man has lost friends overseas, which weighs heavily upon him now that he himself has come home. I also wanted to create a claustrophobic foreground, with the subject almost trapped and boxed in by the alley way where he is sitting. This is contrasted with the background, which is quite nice, with a blue sky and clean buildings. This was an attempt to show that while many who suffer from PTSD can hold up a veneer of calm, they are still struggling on the inside.
Brachfeld: What media did you use?
Melancon: I used oil paints on an 18 x 24 canvas
Brachfeld: When and how did you begin painting?
Melancon: I began painting in January of this year as part of an introduction to painting course at LSU, but I've been practicing art in one form or another since before I could walk. When I was in Afghanistan I found that drawing, or more importantly the ability to create, was a very effective counter balance to my regular duties, and almost therapeutic in its capacity as a stress reliever.
Brachfeld: What did you hope to accomplish with this work?
Melancon: On the surface this painting was the final project of my painting course at LSU. I wanted to paint something that held meaning, and to see if I could transcribe passion into my work in a way that I couldn't do while painting still-lives or other subjects which lack any sort of substantial emotional content. I have also found that pictures, when properly executed, are capable of conveying incredibly complex issues in such a way that it simplifies the issue without marginalizing it. I wanted to condense the subject of PTSD, which is still not fully understood, into a simple visual medium, and convey it in such a way that the effect it has on veterans can be immediately understood and appreciated.
Brachfeld: Where can people get a copy of the work?
Melancon: As of now I am not selling prints, if they become available in the future it will be available on my website at www.tboxdesign.com
Brachfeld: Anything I should have asked but didn't?
Melancon: A little about my own Military experience. I joined the Marine Corps in August 2008. After completing my initial training I was assigned to 1st Battalion 3rd Marines, C company as a rifleman. I deployed twice to Helmand Province, Afghanistan in 2009-2010 and 2011. I was honorably discharged in August of 2012 and am currently in school at LSU in Baton Rouge..
back by popular demand... from our archives!
by Aaron Brachfeld and Mary Choate
In our regular At Home In Nature series, the readers get a glimpse of the many amazing medicinal and edible plants that nature provides. Recent research indicates that one of these plants, the common Hops (Humulus lupulus), may present an answer to those suffering from second-hand and third-hand marijuana intoxication.
Need for counter-active herb
Marijuana, like tobacco, presents dangers of second-hand and even third-hand intoxication. Unlike tobacco, marijuana need not be vaporized or combusted to present this risk of second-hand or third-hand intoxication.
Exposure to second-hand and third-hand marijuana, just like exposure to second-hand and third-hand tobacco, presents a risk that the same medicinal compounds that users find effective or pleasurable, may be experienced by those who do not willingly or want to be subjected to them.
Taking medicine that is not prescribed to you is dangerous, as it treats symptoms you do not have, and some people do not enjoy the effects others find “pleasurable.” So there has been presented by the new legalization of marijuana a need for an herb or pharmaceutical to counter-act the second and third-hand marijuana.
Administration and acquisition
A benefit to the Hops is that it may be taken orally, so as to not counter-act the effects of the marijuana for patients requiring the marijuana for medical reasons.
Hops may be administered orally by capsulated herb, or produced into a tea. It is available both in raw fresh form from Colorado farmers, as well as dried.
It is commonly used as a flavoring in beer. Non-alcoholic beer provides a more readily-absorbed and potent form of hops, the herb being broken down through the brewing process. However, dried and fresh hops work as effectively at higher dosage.
Hops, like Marijuana, is a member of the cannabis family, and has several psychoactive properties. Many of the numerous cannabinoids that marijuana produces are produced for protection against predation: animals eating the plant, become intoxicated by the cannabinoids and, if they are small like insects, die, but if they are larger, simply stop eating the plant.
In nature, many plants have an antagonistic relationship, competing for the same environment. Some, like thistles, produce toxins that actually kill nearby members of other species. Some, like hops and marijuana, have a species-specific antagonism: the cannabinoids produced by hops act to neutralize or counter-act the cannabinoids of marijuana, so that the hops plant cannot be harmed by the marijuana.
Since the 1940’s, experiments have been undertaken in grafting the various members of the cannabis family together to better understand the cannabinoids. Hemp, Hackberry, Hops and Marijuana have been grafted together, and it was discovered that the cannabinoids are produced primarily within the leaves and flowers. In the 1940’s, the US Government funded research into the development of hemp which would not contain certain psychoactive properties, and in the 1970’s, interest arose from private researchers in developing a hops plant with marijuana’s psychoactive properties, creating a plant that appeared to be legal, but actually was producing illegal marijuana cannabinoids.
In background research, the fundamental research may be attributed to HE Warmek and H Davidson (Polyploidy Investigations. Carnegie Inst. Wash. Yearbook 43:153-155, 1944) and L Crombie and W Crombie (Cannabinoid Formation in Cannabis sativa Grafted Inter-Racially, and with Two Humulus Species. Phytochem. 14:409-412, 1975). Tests were undertaken to measure levels of THC, THCV, CBD, CBC, CBN and CBG. Yet in every test, the hops remained pure of the marijuana cannabinoids.
As marijuana became legalized in more places around the world, there began research to discover a counteractive and the research that disappointed criminal marijuana farmers was remembered by E Russo (Taming THC: potential cannabis synergy and phytocannabinoid-terpenoid entourage effects, British Journal of Pharmacology, Special Issue: Cannabinoids in Biology and Medicine, Part I. Guest Editors: Itai Bab and Steve Alexander: Volume 163, Issue 7, pages 1344–1364, August 2011).
Russo, who works as a Senior Medical Advisor to GW Pharmaceuticals, researched into traditional herbal counteractives to try to understand the properties of those chemicals. He believes he will soon pharmaceutically isolate those compounds responsible for counteraction for commercial development.
At this time, Russo believes that Terpenoids such as β Myrcene (in hops, antiinflamatory via PGE-2 – Lorenzetti et al 1991, Analgesic – Rao et al. 1990, Sedative, muscle relaxant, hypnotic – do Vale et al. 2002, blocks hepatic carcinogenesis by aflotoxin – de Oliveira et al. 1997), Limonene (in lemons, anxiolytic via S-HT1A – Kormiya et al. 2006), α Pinene (in pine Acetylcholinesterase inhibitor, aiding memory – Perry et al. 2000, anti-inflamatory via PGE-1 – Gil et al 1989), Linalool (in Lavender, anti-anxiety – Russo 2001, Sedative – Buchbauer et al. 1993, Analgesic via adenosine A2A – Peana et al. 2006, anticonvulsant/anti-glutamate – Elisabetsky et al. 1995), β Caryophyllene (in black pepper, selective CB2 agonist – Gertsch et al 2008, treats addiction – Xi et al 2010), Caryophyllene Oxide (in Lemon Balm, anti-feedant – Bettarini et al. 1993), Nerolidol (in Oranges, Sedative – Binet et al. 1972, and Anti-leishmanial – Arruda et al. 2005) and Phytol (in green tea, £GABA via SSADH inhibition – Bang et al. 2002), may present the best course for further study.
It should be noted that the above mentioned herbs are not the only way to obtain Terpenoids. Hops contains many of these Terpenoids, for example, and pistachios also contain pinene, etc.
Initial tests and confirmation
Volunteers were sought for a limited non-clinical study to verify Russo’s hypothesis, and the initial results indicate that Russo may have identified the method for counteracting marijuana intoxication. While all of these herbs (hops, lemon, pine, lavender, black pepper, lemon balm and oranges) produced the desired counter-active effect to some limited degree, hops nearly completely counter-acted the intoxicating effects of marijuana.
Some subjects, who had allergy to marijuana, found that even their allergy symptoms were reduced or eliminated after taking hops.
Effectiveness was found to vary based on body weight, and other factors. Between 1 and 2 grams of dried hops was required for 3rd hand exposure, and approximately 2-5 grams was required for mild 2nd hand exposure. Effect was noticed rapidly, within 5 minutes..
Baby owls at Cherry Creek Reservoir and across the State are growing up quickly. This pair of adolescents are still unable to hunt for themselves, so their parents are feeding them. They are still smaller than adults. The pair has been seen cuddling each other, and in many ways behaving like baby owls (adults are solitary). However, free from the nest, they are in an awkward position.
The small songbirds hate the baby owls, and have been attacking them in an attempt to defend their own babies from being harmed by the predators. Whether the baby birds are in any actual danger is doubtful: owls primarily eat small mammals like rodents, insects, and while they do eat other birds and sometimes fish, these are not significant portions of their diet..
Labels: Nature News