BENNINGTON — The first person charged under Vermont's new law banning high-capacity magazines has asked the state to dismiss the charges under the claim that the ban is unconstitutional.
In a 27-page motion to dismiss, attorney Frederick Bragdon argues that the charges against his client, Max Misch, 36, of Bennington, may have been brought about because the state was "unwilling or unable" to charge Misch with a crime based upon his interactions with former state Rep. Kiah Morris, who resigned in fall 2018 citing racial harassment.
Misch appeared at the criminal division of the Bennington Superior Court Monday afternoon, represented by public defender Bragdon, who recently put forth the motion to dismiss two charges against Misch for unlawfully possessing two 30-round magazines.
On Feb. 7, Misch pleaded not guilty to the charges alleging he purchased those magazines in New Hampshire in December 2018 — after the ban took effect.
Deputy Attorney General Ultan Doyle, the prosecutor in the case who participated in Monday's hearing by telephone, told Bragdon that he had received the motion to dismiss but had not yet read it. Doyle asked for 30 days to respond to the request due to the lengthy motion, which was filed Thursday, and Judge William D. Cohen granted the request.
A hearing will be scheduled after the Attorney General's response to the motion, Cohen said. The Attorney General's office has until April 18 to respond.
In the motion to dismiss, Bragdon argues that the state law that banned ownership of high-capacity magazines is unconstitutional under Vermont's constitution, which guarantees the right to bear arms. He also cites the "Common Benefits" clause, which says that the state government must not enact laws that benefit one group over others.
"Without a clearly articulated and rational basis for segregating one group of Vermont citizens from another, any law that does so is constitutionally suspect under [the clause]," Bragdon argues.
Bragdon alleges the state "targeted" Misch under the new law and was willing to expend "significant resources" in order to secure the evidence necessary to prove Misch violated the law.
"It is entirely reasonable to assert that at least a part of this extensive process [of investigating Misch] and the motivation behind it was based upon the State being unwilling or unable to charge Mr. Misch with any crime based upon his interactions with Ms. Morris," Bragdon writes in the motion.
Misch, a self-described white nationalist, has admitted to harassing Morris by "trolling" her online and at public events.
An investigation by Vermont State Police and computer forensic analysts that concluded in January 2019 stated that Morris was a victim of racial harassment, but did not find sufficient evidence of criminal behavior. This also was the conclusion of local police and Bennington County State's Attorney Erica Marthage during two sets of harassment complaints from Morris — complaints that roughly corresponded to the election seasons in 2016 and 2018.
Bragdon also states the Vermont legislature "provided absolutely no basis for establishing an important governmental interest in enacting this new law."
First, the bill originally had nothing to do with ammunition, Bragdon says. Second, because the legislature prohibited hearings and public discussion on the law, the legislature "undercut the potential need" for the law banning the devices.
Third, he argues that since there was no evidence or testimony at the legislative level, "the reduction of ammunition to 10 rounds cannot be understood on an intellectual level to protect the citizenry of Vermont from gun violence." Fourth, he criticizes the legislature for never considering alternatives to the ban, such as perhaps limiting the number of magazines a person can own rather than an outright ban based on size.
Also, legislators provided "no guidance" on how the law would reduce gun violence in the state, he writes.
"Large capacity magazines under the new law are not banned, and thousands of such magazines may already be lawfully possessed under the new law," he states.
Finally, Bragdon argues that because there is a line between legal possession and illegal possession of the devices and since the devices are not date-stamped, the only way authorities can enforce the law is to "engage in the exact time-consuming and resource-heavy approaches used with Mr. Misch: extensive investigations, including going to other states where the purchase of large capacity magazines is allowed, seeking surveillance tapes, and checking purchase receipts."
State police investigation
The two ammunition charges against Misch were brought by the Office of the Attorney General and probable cause was found. Misch is not incarcerated, but could face up to a year in prison and up to a $500 fine for each charge, if convicted. At his February arraignment, Misch to stay away from his ex-wife, from Morris, and from Morris' husband, James Lawton. He was also forbidden to possess any firearms.
According to a Vermont State Police affidavit written by Detective Trooper Patrick Slaney, Misch's ex-wife's therapist contacted police when she learned that Misch was allegedly purchasing weapons, large-capacity magazines, and stockpiling ammunition.
"This, coupled with [Misch's ex-wife's] knowledge of white [supremacist] and neo-Nazi affiliations of Misch, prompted the therapist to report the information to law enforcement," states the affidavit.
Misch's ex-wife, Lisa Shapiro, told police that between September and November 2018, Misch purchased an AK-15-style rifle from the Bennington Armory, and in mid-November and early December 2018 she gave him a ride to the Runnings sporting goods store in Hinsdale, N.H., where he sought to purchase 30-round magazines for the rifle.
By reviewing the store's security camera footage, police said they were able to confirm Misch purchased these magazines. He used Shapiro's credit card for the purchase because he forgot his money at home, Shapiro told police.
Christie Wisniewski can be reached at firstname.lastname@example.org and at 802-447-7567, ext. 111.