Justices may be asked to rule on gun law

Lawyers for Max Misch, AG want questions answered on constitutionality of state gun control legislation


BENNINGTON — The Vermont Supreme Court may be been asked to review constitutional questions raised by attorneys for Max Misch, who faces two counts of possession of illegal high-capacity firearm magazines.

The request was filed in a joint motion from the Attorney General's Office, which is prosecuting Misch on the charges in Bennington Superior Court Criminal Division, and Bennington County Public Defender's Office, which is defending him.

The request follows a June 28 ruling by Superior Court Judge William Cohen rejecting a motion from Misch's attorneys to dismiss the charges based on constitutional issues. The attorneys raised questions concerning the provision of the 2018 state gun control legislation under which Misch is charged.

The provision made illegal large-capacity of more than 10 rounds for a long gun and 15 rounds for a handgun. Misch is charged with possessing 30-round magazines that police say he purchased in New Hampshire after the provision took effect in October.

In the joint motion, the prosecution and defense attorneys request that Cohen's rejection of a dismissal of charges be referred to the Supreme Court before a final order is entered.

The motion asks the Supreme Court to determine whether the 2018 gun control law provision is constitutional under two articles of the Vermont Constitution — among the issues raised in Misch's unsuccessful bid to have the charges dismissed.

The motion was filed under Rule 5(a) the Vermont Rules of Appellate Procedure, which allows a review by the Supreme Court of important issues raised at the trial level prior to a resolution at that level.

According to the motion, "These issues are 'of sufficient importance or doubt to justify reporting to the Vermont Supreme Court' before final judgment in this case, because they involve the constitutionality of newly-enacted statute that has been the subject of significant public attention and litigation, both in the present criminal case as well as a civil lawsuit."

A suit challenging the gun law provision also is pending in Washington County Superior Court.

In conclusion, the joint motion states: "Based on the foregoing, the parties respectfully request that the Court grant this motion and sign the proposed order reporting these questions to the Vermont Supreme Court for appeal before final judgment."

The motion was signed by Frederick Bragdon of the Bennington Public Defender's Office and Richard P. Burgoon Jr., an attorney who is working with the office on the Misch case, as well as Solicitor General Benjamin Battles and Assistant Attorney General Ultan Doyle for the prosecution.

It was unclear Friday when Cohen would act on the joint request.

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Motion to dismiss

In his prior motion to dismiss the charges, Misch argued that the law violated Chapter I, Article 16 of the Vermont Constitution, guaranteeing the right of citizens to own firearms.

The motion also contended that a grandfathering section of the large-capacity magazine provision violated the "Common Benefits clause" of Chapter I, Article 7 of the Vermont Constitution by allowing some residents to possess such magazines — those who purchased them prior to the law's enactment — while prohibiting others from doing so.

But Cohen determined last month that the gun control law did not "contravene either constitutional provision and Mr. Misch's motion to dismiss is denied."

He wrote, "This case is fundamentally about achieving a balance between conflicting rights the right to bear arms and the commensurate right to live in a community with a measure of safety."

The charges are related to Misch's acknowledged role in trolling former state Rep. Kiah Morris online and at public events during the time she filed complaints of racially motivated harassment and threats.

Morris, who is African American, gave up her campaign for another term in the Vermont House and shortly afterward resigned in September 2018. The former lawmaker cited harassment that began during the fall election campaign in 2016 and again during the 2018 campaign season.

Morris and others also were critical of Bennington police for not filing criminal charges during that period, despite her numerous reports of harassment and threats.

Police Chief Paul Doucette contended that every complaint was in fact investigated, but that neither his office nor Bennington County State's Attorney Erica Marthage could find grounds to bring a criminal charge against Misch or anyone else.

Attorney General T.J. Donovan last fall ordered an investigation by Vermont State Police and the VSP computer crimes unit. That investigation also resulted in no criminal charges being filed, Donovan announced in January.

But in February State Police arrested Misch, 36, of Bennington, after investigating allegations he had purchased two 30-round magazines in New Hampshire.

Violations of the gun control provision carry a maximum penalty for each count of up to a year in prison and a $500 fine.

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien     


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