Misch arrested for alleged new gun-related violation

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BENNINGTON — Local police have arrested Max Misch for allegedly violating conditions of his release while he faces firearms-related charges.

In a media release posted Friday, Bennington police said that Misch, 36, of Bennington allegedly purchased a firearm after his release conditions were imposed on Feb. 7 on two counts of possession of illegal large-capacity ammunition devices.

One of the conditions imposed in Bennington Superior Court Criminal Division was that Misch "shall not buy, have or use any firearms or dangerous/deadly weapons," police said.

However, the department received information this month that Misch allegedly had purchased a firearm just prior to or shortly after his arraignment for possessing large-capacity magazines. The charge stems from a provision of the state's 2018 gun control legislation that took effect in October, before Misch allegedly purchased two 30-round magazines in New Hampshire.

"Misch purchased the firearm, paid in full, but did not take possession of the firearm," the police release stated. "The firearm remains in the possession of the local firearms dealer. The release conditions were in effect at the time of the purchase."

Police said they contacted the court in reference to the alleged conditions violation and arrest of Misch, who they said was released with additional conditions and is scheduled to appear in court this afternoon.

As ordered by the court, Misch was released from the BPD with additional conditions. He must abide by existing release conditions and may not enter any establishment that sells firearms or ammunition.

The BPD said no further information would be released at this time.

Appeal mounted

Misch has tried to appeal the ammunition possession charges and the gun law provision on constitutional grounds, but his dismissal motion making that argument to Superior Court Judge William Cohen was shot down in a June 28 decision.

Cohen ruled that the provision does not violate the sections of the Vermont Constitution cited by Misch's attorneys, 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.

However, the defense attorneys and attorneys from the Attorney General's Office, which is prosecuting Misch on the charges, have since filed in a joint motion asking Cohen to seek a determination from the Supreme Court on the constitutional issues raised about the new law by Misch's attorneys.

The motion also was signed by Solicitor General Benjamin Battles and Assistant Attorney General Ultan Doyle for the prosecution.

The motion asks that the Supreme Court determine whether the 2018 gun control law provision is constitutional under two articles of the Vermont Constitution. The joint 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.

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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."

Cohen had 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."

Racial harassment

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 fully 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 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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