Max Misch hearing, 6/14/21

Max Misch (bottom left) appeared Monday in Bennington Superior criminal court, where defense attorney Fred Bragdon (top right) said they intend to file a motion to have Misch’s rifle magazine charges dismissed based on the Second Amendment of the U.S. Constitution.

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BENNINGTON — A Bennington man charged with illegally possessing large-capacity rifle magazines intends to renew efforts to get his case dismissed, this time by arguing for his rights under the Second Amendment of the U.S. Constitution.

The man, Max Misch, is facing two misdemeanor charges after police found a couple of 30-round rifle magazines at his home in February 2019. Authorities said Misch bought them amid a Vermont ban that outlaws magazines containing more than 10 rounds for long guns and more than 15 rounds for handguns.

The public defender representing Misch told the Bennington Superior criminal court on Monday that his office plans to file another request to dismiss the case.

“We have decided to file a second motion to dismiss, this one solely on the U.S. Second Amendment,” defense attorney Fred Bragdon said. The document will be submitted in time to meet a court deadline in October, he said.

Misch’s first motion to dismiss, filed in March 2019, argued that the state ban violates two articles in the Vermont Constitution: people’s right to bear arms for defense, as well as the government’s being prohibited from passing laws that benefit certain groups.

The Superior Court denied the motion. This was affirmed by the Vermont Supreme Court, which said in February that the law is a reasonable regulation of people’s right to bear arms for self-defense.

The state attorney general’s office is prosecuting the case, as well as three others in which Misch is accused of violating conditions of release from detention. Misch earlier told the court he was open to a settlement, including in the magazine case.

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“This case probably will not be ripe for resolution, because it will likely be a global matter once we are done with the litigation on the magazine case,” Bragdon said during the remote hearing Monday morning. “I think we have much better things to consume our time than with one of these misdemeanors at this time.”

Misch’s most recent violation of condition charge accuses him of confronting a witness in his magazine case in May — his ex-wife whom he reportedly bumped into at the Walmart store in Bennington. State police said in a sworn statement that Misch’s ex-wife, Lisa Shapiro, complained that Misch turned toward her and asked, “Why did you talk to the media?” and “Why did you talk to the police?”

On Monday, Bragdon said Walmart security video that his investigator viewed tells a different story. “The complaining witness approached my client, and there was no indication that either side was speaking with the other side. There’s not an audio, but there was no gesticulation that one would associate with conversation from either side,” he said, adding that the encounter happened within four seconds.

Meanwhile, Misch also has two disorderly conduct charges that are being prosecuted by the Bennington County State’s Attorney’s Office. One of them, allegedly stemming from a fight with a Black man, has been enhanced as a hate crime. It carries the most serious potential jail time Misch is facing: two years. The rest are punishable by up to a year in jail.

Bragdon earlier said State’s Attorney Erica Marthage offered Misch “fine only” penalties in exchange for admitting to disorderly conduct.

Superior Judge Cortland Corsones scheduled a status conference on the disorderly conduct charges in 60 days. The cases under the attorney general’s office will have a separate status hearing, in November, once Misch’s new motion to dismiss has been filed.

Contact Tiffany Tan at ttan@benningtonbanner.com or @tiffgtan on Facebook and Twitter.


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