Legal AF by MeidasTouch - Legal Experts REACT to Buffalo Massacre

Episode Date: May 19, 2022

The midweek edition of LegalAF x MeidasTouch, the top-rated podcast covering law and politics, is anchored by national trial attorney and strategist, Michael Popok and former prosecutor and leading criminal defense attorney Karen Friedman Agnifilo. On this week’s episode, Popok and KFA focus on the Buffalo mass murder, its root causes and who’s to blame, the current state of gun control laws (state and federal) and the upcoming decision this summer by the Supreme Court concerning the 2nd Amendment right to bear arms and what it means for the future. Join the Legal AF Twitter Community: https://twitter.com/i/communities/1518253662920974338 Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 Zoomed In: https://pod.link/1580828633 The Weekend Show: https://pod.link/1612691018 Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the midweek edition of Legal AF with your co-anchors Michael Popock and Karen Friedman Agnifalo. On this sobering edition we're going to talk about the Buffalo mass murder of 10 Americans because they were black by a privileged 18-year-old white kid and what it means for America gun control, how did it happen? What is the root causes of it? And why did the laws fail to prevent this tragedy, a tragedy that even as we're recording,

I am sure is not the last mass shooting that will occur this week, somewhere in America. As we get started, Karen, I think it's important. I'm sort of tired about talking about the name of the shooter. And I'm more interested in saying the name of the victims who aged, whose ages range from 32 to 86, they are Roberta Drury, Marguess Morrison, Andre McNeil, Aaron Salter, Geraldine Talley,

Celestine Cheney, Hayward Patterson, Kathy Massey, Pearl Young, and Ruth Whitfield. Those are the people that are important. Those are the people who have sacrificed their lives to a improper gun control set of policies in America, primarily supported by the right wing of the GOP, and the talking heads at Fox News, who have blood on their hands as far as I'm concerned, Karen, concerning this mass murder and everyone that is, that everyone that will follow. And we're gonna have a conversation

about this over the next 45 minutes, which I think I can tell from looking at our social media feeds, our audience cares about deeply. Good evening, Karen. Good evening. Wow, that is sobering and I love that you said their names. And I'm gonna try not to say the name name of the shooter the killer, you know, the column. It's called the killer. It's called the killer. Yes, exactly. I'm not I'm going to try not to say his name this whole this whole episode. I think that's a lovely gesture to talk about them. You know, it's it's amazing because today feels different. Today feels like I can't believe we're still here.

I can't believe we have another mass shooting. I can't believe another person with all the red flags and all the slipping through the cracks that we're gonna talk about that we're here again on top of all of that. We're having an uptick in COVID again. We're, I'm hearing all this stuff about, you know, people are coming down with COVID in record numbers.

And I got a text from my kid's school, your kid was exposed, yada yada yada. And I just feel like, you know, one of the things that drives people indoors and online is the isolation from COVID, and I just worry a little bit that heading in that direction, that people like this killer, they do tend to slip to the cracks, and they do find themselves in areas like 4chan and Reddit as you were saying,

where they find these like-minded people to kind of bring themselves, legitimize, to legitimize to themselves kind of what they're doing. And we have to get better at catching them and we have to get better at then not giving them access to guns. I mean, here was a guy who was on the radar of people. He was somebody who displayed some troubling behavior at school. So he was taken to a hospital. He was somebody who displayed some troubling behavior at school. So he was taken to a hospital. He was evaluated. And he said, oh, I was just kidding.

But he was online with a group of other people who are equally racist and equally wanting to kill black people. And I just think, I look at this guy and I want to talk a little bit about him and his family There is no way They didn't know you can't have someone with all the tactical gear that he had With all the planning that he had with an AR 15 with an N word in scrab got it You know and he's yeah, he made a comment at school. There is no way people didn't know. And I think it's a time.

Well, let's unpack all that. That's a lot. Let's unpack all that. We're going to try to do what we always do. We say at our legal AF analytic framework. I know. And you're so good at doing that because I get emotional. And I like that.

No, the emotional is the authentic, the emotional is the authentic part of the show. But let me let me frame it first and then we'll unpack actually every one of those things that you just said are really, really important to what happened and where do we go from here. But let's frame it.

Most of the news, as I say on some of my social media feeds, you know what happened. Here's what happens next. But let me just go over the highlights of of course what feeds. You know what happened. Here's what happens next. But let me just go over the highlights of, of course, what happened. You have a, what was then a 17-year-old high school student who, as you said, made a threat against himself and others.

He said his goal in life after graduating was to commit a murder suicide. OK, you would think that would set up a series of red flags. Apparently, he was picked up by the authorities. He was interviewed. He was even sent to a mental health and mental hospital for I think 72 hours for evaluation. He later joked about that in social media that he bullshit it his way through that in order to get released so that he could execute on his plan. He didn't do the suicide part, unfortunately. They never do this. Why don't they do the suicide part first?

Then we don't have to worry about the murder part where he kills innocent civilians and Americans. But so he gained the system, gained it GIMED from the beginning. He then at now that's at 17. At 18, he's legally able to buy a handgun. As long as he's not been a judged to be mentally unfit, and there's a whole patchwork of laws from the Brady Act to New York laws, to the Safe Laws SAFE laws, which we'll go over with you as you're wearing

your prosecutor hat, to the red flag laws that came out in most states after Parkland, Florida in 2018 and are on the books in New York as of 2019. And wow, that patchwork failed here. Mainly because it requires parents, teachers, and law enforcement to do something, meaning petition a court in order to a judge somebody unfit to be able to buy a handgun or a firearm that did not happen here.

The cops did the interview. The medical did the mental evaluation, but nobody went to court and to obtain that order. And that entire system, that whole red flag, emergency response system, it all ties to somebody filing a petition and you're so right, why did the parents, seeing all of these Amazon packages being delivered and wondering what Billy I'm making up a name now is doing in his bedroom with the

lights flickering all day and all night long. So 18 he goes to a lawful gun dealer. I know that gun dealer is getting a lot of flack on line about you sold to a mass murderer. But you know what, if that kid's not on a list He's 18. He said that's America's gun policies. He's 18. He's not on a list He gets he gets to buy a gun now why he's not on the list is what you and I are gonna talk about and then he buys this this this this Bushmaster semi-automatic rifle Which he then goes home in five minutes with his father's drill, modifies to increase the capacity of the magazine from 10, which is the limit in New York

in most states, to more than 10, with a bump, what's called a bump stock, that goes in the bottom, which is a high-capacity magazine. And he also, I think, modifies it to go from semi-automatic to automatic, which online, you can find, I mean, I'm not encouraging this, but you can find online how to do that in about two minutes. So he goes and does that. He modifies the gun. And then he executes on his plan, literally, by going to Buffalo and a heavily black neighborhood into a grocery store where the people literally are vulnerable and sitting ducks. And he shoots and kills them because they are black and leaves behind 180 page

Manifesto, which is primarily the talking points from the Tucker Carlson show and Fox news What's called the great Replacement theory before you get to the great replacement there. I just want to there there's a couple of things that I want our audience to really appreciate. So first of all, New York is a big state. And just, you know, we say, oh, he was in New York and he went to Buffalo. And he's from a place called Conklin, New York, which is a town near the Pennsylvania border. It's Western New York and it's a couple of hours from New York City. But it is, if you were, so Buffalo, New York is, I think, 375 miles from New York City. So it takes a good six hours

to get there. And it takes a good two hours to, I'm sorry, more than two hours. It takes a good, I'd say four hours to get from Conkland, New York to Buffalo because it's 200 miles away. to get from Conklin, New York to Buffalo because it's 200 miles away. And so he's in a car for, he wouldn't think about it. This man hates black people so much that he was, you know, the area he's from in Conklin, New York is predominantly white. And so he is googling all over New York state where are areas that are predominantly black? And there's a community in Buffalo that has a very large, a very large black population. And he targeted that particular community.

He targeted a grocery store where he knows that regular people who are living their lives are buying food for their families and they're by and large going to be people of color and he drove more than four hours in his car with tactical gear. So he had he had clothes, he had weapons, he had all sorts of gear that he needed to execute this plan. He had a camera so that he could film himself. I mean, this is a well-orchestrated plan. This wasn't a premeditated racial terrorist attack. This is how I would describe this. The amount of thought that went into this, the amount of planning that went into this, and amount of planning that went into this.

And the fact that he went through all the steps that you just described about modifying the weapon, carving the inward into the weapon, getting all the gear he needed, writing this almost 200 page manifesto that's, that's a road map for what he believes and what he's thinking. And then he executes his plan, frankly, exactly how he wanted to. And he killed 10 people and injured three others. One of them was a security guard that tried to stop him, tried to shoot him, and he shot him dead too. And there are mostly people, it's probably the mostly black people who he killed. So this is what he did here. It was no small feat. This wasn't an impulse.

This wasn't I got in a fight with a kid at school and I said some things that I regret it. This is a well planned, well thought out, well executed, well resourced plan that this guy did and carried out perfectly. And so that's why I say, I don't believe that you can do all of that and not be on somebody's radar. It's one thing to have made a comment at school that he claimed he was joking and whatever. I still think that he, that they do their job. Well, let's do it this way. So I'm okay with blaming the parents here.

Not just the parents, but his friends, everybody. Well, we'll go ahead. But let me make my point and then you can critique it. Well, stop. I know. He's a much more topics. I can't control myself. It's a conversation.

So this is what happens in conversations, especially among family. As you say, my husband does not like when I interrupt, but go ahead. Sorry. I don't see it as an eruption. I see it to say my husband does not like when I interrupt, but go ahead. Sorry. I don't see it as interruption. I see it as part of the continuum of the conversation. So he's 17.

He has this, you know, parents, plenty of parents are on our, or a follow our show and are part of the might as might in the legal a efforts. So they'll put, they'll empathize with this at least. By the way, I'm the parent of a 17 year old. Okay. No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no want to go into the kids bedroom occasionally, turn on the lights, go monitor his internet usage, see what he's shopping for, because you're now on notice that your child is exhibiting signs of complete distress, and perhaps separation from reality. And it could be violent because he's threatened it. So, you know, I see some of these reports.

I've seen more reporting, unfortunately, about the lives of the parents, this upper middle class, engineers, whatever they are. I don't, you know, unless about the 10 people that their son snuffed out the life of and ruined the life of and the families of those people. But be that as it may, I'll tell you what they're not really good at. They're not really good at parenting because if they had that as the, you know, if you had a notice that your kid exhibited signs of becoming a mass murderer, a school shooter, and otherwise, maybe you want to go look at his diary, electronic or otherwise. Maybe you want to go do one of those

things where you see what he's searching for. Maybe you check the Amazon boxes as they get delivered. Why is one the size of a rifle? Why is one the size of a, why is one the weight of a vest, you know, a bulletproof vest, which he was wearing, you know, you know, the kid is living under your roof. And so if that is not the first line of protection to society, the parents, then you hope law enforcement will be and the school and mental health professionals. But they failed here too because none of them thought that this was worthy of the time and effort to exercise a thought to file this petition because the entire system is based on reporting.

People are like, you know, it's easy to write in the newspaper. Mentally, it all shouldn't have weapons, right? But in order for that to happen, there has to be a court process. There has to be a adjudication that somebody is unfit to have a weapon. Every one of these policies in 19 states is tied to. This is, this is the loophole that the governor of New York, a hookah who's from Buffalo, by the way.

And I think that was not accidental. This kid is very methodical. I think he chose a black neighborhood in the governor's hometown for a reason, for the notoriety that it would attract for him. But all of these laws rely on us, parents, teachers, law enforcement, to do the right thing and not look the other way and bury their head in the sand.

And that is the failure. Law on books is great, but you got to breathe life into them by taking the action that is required to trigger those laws so that the kid goes in at 18 and he says to the gun dealer, hi, I'm here for my AR 15 or my Bushmaster hunting right fall. And they go, sorry, you're not able to buy this weapon because you've been adjudicated under the New York safe laws and the red flag laws as being unable to carry a weapon. That's the way it should have worked. Every one of these mass shootings that has happened recently, the kid, the person got the weapon legally. All that means is our system of laws,

national and local have failed. And we'll talk about that next. I agree with you. I mean, so this red flag law was passed in 2019, it went into effect in 2019 in New York state. And just putting into context what was happening at that time in New York state at the same time. Law enforcement was going through a big transformation because don't forget it was right before COVID

lockdown and on top of that law enforcement in New York, the laws changed significantly. New York state had its biggest criminal justice reform law at that time. And so law enforcement was readjusting to lots of different types of criminal justice measures, including discovery, et cetera, and bail reform. And one of these things was this red flag law. And I think it gets a little bit lost in the sauce. I think, I really think that law enforcement needs more training on what it is and what it looks like. I mean, I went on to the New York State website this morning just to kind of see, you know,

what it looks like. It's way too, it's like one paragraph on what the Red Flag Lot is. It really needs to have examples of when to call what to do and how to do it. I even think you should have a button to click that says if you were if you think that there's somebody at risk, click this button and law enforcement will you know will sort of respond and and but it they don't it's not easy. It's not clear on how to do it and what to do. And you have to make it easy on what circumstances and make it clear that, you know, you're not, this doesn't mean the person's going to get arrested, by the way.

Because I think parents, you could imagine a scenario where they're like, okay, I want my kid to not be able to buy a gun, but I don't want my kid to be arrested. I want my kid to get mental health treatment. And I can imagine a scenario like that. So make sure it's clear that they know that it doesn't mean they're going to get arrested. It means that you will go to court. And because, you know, because the second amendment has been interpreted to allow, and we'll get to that in a

bit, I'm sure, has been interpreted to allow to say that that that day people are allowed to carry guns and have guns and possess guns that you have to have due process in place before you remove someone's constitutional right. And that's what this red flag law does. It's basically it's called the Extreme Risk Protection Act and you go to court and you have due process. So you present evidence about why you think this person should not be able to possess a gun. You see a judge and a judge makes a ruling or a finding, yes or no. And then you go on a list. And so that as you said when he went into this federally licensed firearm dealer, they could go and

look on the list. There's lots of people on the list, the no-fly list, if you will. There's terrorists. If you're a terrorist, you can't buy a gun. If you're on that list, if you have domestic violence conviction, those types of, or if you're a felon, you know. Well, let me give some stats on that. Since 1999 to 2021, so the first law, this erpo that you just talked about,

the extreme risk protection order that are in 19 states, including the District of Columbia. Since 1999 to 2021, 17,000 erpo petitions have been filed. But in New York, it's only been on the books. 21, 17,000 erpo petitions have been filed. But in New York, it's only been on the books, this is back to your training issue. It's only been on the New York books since 2019. There was a whole bunch of states that, including Florida, despite its governor,

when he wasn't governor, because of Parkland and the shooting in the high school there, that adopted, so there was a couple in the high school there that adopted. So there was a couple in the beginning like Connecticut like 1999 and then there was a whole bunch that after Parkland that said sure that's a great idea. We should have a way to keep guns out of certain people's hands and have a process to record system and do process to make that happen. In New York since 2019 there's only been 589 total erpo petitions filed.

That's not a lot for the size of the state that you described and one for which you were prosecuted, right? 589 in that many years, that's not a lot. That proves to me that your point, which is the not user-friendly interface of the online application information process, the lack of training at law enforcement at schools with parents. I see no public service announcements about this on television in New York.

Zero. Zero. Now, Hocal, the governor, of course, this is her hometown massacre. She says, oh, there's loopholes. We're gonna close there's loopholes. We're going to close all these loopholes like they did in 2019 with the with the Safe Act in New York. And I'm sure they'll try to do that within the contours of the Second Amendment that we're going to talk about in the next

part of the segment. And the limits that the governments have, the state governments have because of the Supreme Court position on this soon to be amplified by a new ruling this summer on the right to carry concealed weapons and permits related to that. So with that, another New York case. Another New York case. Well, of course, because New York has, New York probably has, would you say it has the most stringent as bad as they are

because it allowed for the Buffalo massacre. Right, so let's put that in context. As bad as the massacre happened in a state that has the probably the most stringent gun control laws on its books, Bar none. Look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, look, know New Yorker have never been to New York. Now, I'm not from New York. I was in born and raised here, but I've been here my entire adult life. And I've been in New York city my entire adult life. And when I was in New York city in Manhattan my whole life, I just thought, why would anyone have a gun? Why do people love guns? Why do, you know, why do, why does this country love their guns so much? Why is this such an issue? And

I really genuinely couldn't understand it because I, you know, you call 911 in New York City and the police are here in less than a minute and they are there to protect you. And, you know, if you're not a person of color or mentally ill, you're not afraid of the police typically, you know, coming, you think that they actually help you. So I really didn't understand that. And then on 9-11, you know, 9-11 happens to New York City and that changed a lot of people. People stopped feeling safe and secure. And I think there was a little bit of a change of people's feelings towards guns, but still very much we don't want guns. And after 9-11, we purchased a home, a small home, in upstate New York, because we wanted to have a place

to go if something ever happened again. We happened to live right by ground zero, and we were here that day, and that's a whole other story and a whole other conversation for a whole other time. But we ended up buying a house in upstate New York and it's about a hundred miles from the city and it's a small town and it's the first time I really started to understand why people feel the way

they feel about guns and why this is such an issue. So we had, there's everybody in upstate in our town, most people have guns, and they have multiple guns, and many of them are hunters. But there's another reason why they have guns, and that is because my town doesn't have a police force. When we had budget issues, the first thing they voted to get rid of was their police department, which I thought to myself coming from law enforcement. I didn't know that was an option, you know know, maybe I'm naive, but I said to them, you know,

I don't understand what do people do? How do you protect yourself? And the way they said, everybody has a gun, and you need to have a gun. And you know, that is a very interesting and very telling, I thought about sort of why it is people feel so strongly about the idea of being able to protect yourself and protecting your family. And I now have a lot of friends in upstate New York. And the idea of outsourcing, the safety and security of your family to law enforcement,

they just isn't a thing. And so I really do think as a country, we are so different. We have so many different people that we have to figure out a way to live together and regulate. I mean, I do think a gun in New York City, for example, where you are in such a dense population area,

two guns in New York City equals bad. You're either going to shoot each other, you're going to get shot, or someone else, you're so crowded, you're going to miss and shoot someone else. There is no place for guns, in my opinion, in New York City, outside the hands of law enforcement. But outside New York State, you have to figure out a way

to allow people to safely have their guns, but also at the same time when you have these red flags. You know, like for example, why do you need to have an AR-15? That's automatic. Why does anyone need that to protect your family or protect your loved ones? We're gonna talk about, we're gonna talk, I get it.

We're gonna talk about the Supreme Court and what weaponry is allowed and isn't. And we're going to talk about what's obviously going to be the hypocrisy of their analysis of 14th century abortion laws and not using that same analysis when it goes back to the founding fathers and what they expected about the second amendment, which is based on state constitutional law that was on the books in the colonies and in the states prior to the U.S. Constitution being built. That's the genesis of it and that's the historical research about it. But our founding fathers were using muskets and they weren't semi-automatic

or automatic muskets. They were muskets. So, for the whole analysis around handguns and semi-automatic weapons, you know, sort of, you know, for me, if you're going to go back to history and text, which is what the originalist and the Federalist Society loves to do, they don't do that when it comes to second amendment, and we're going to talk about that next. Let me just, let me just, in this conversation, and people have heard me say this before. I have a slightly different view from you, which is good.

That's why we have, that's illegal AF and the dialogue. I don't think the second amendment, and I'm, I'm, I'm sort of a weirdo because I'm a card-carrying member of the ACLU, but in, but where I could in states that I lived in, I also had a concealed weapons permit, and I own weapons. I own handguns. They're just, I live in New York City, so they're locked away, disassembled, and a safe until there's a time when I can actually use or carry that. And it's totally for self-protection or recreational. I used to go in Miami with my friends to a shooting range, to shoot a box of ammo, go have brunch,

because personal safety was also important in Miami, because if a hurricane came through, it's sort of like your upstate New York example. If a hurricane came through in FEMA, and law enforcement can't get to you for three days, you're sort of on your own. And like you said, you can't outsource till normal public safety. You have to kind of do it on your own when so many comes knocking on the door, you know, looking to harm your family. So that,

that was totally understandable, which is why most of Miami has a handgun in there, including grandma's in their nightstand. Now, the thing about New York City and, you know, one gun is two two guns or too many, I'm not sure about that. And we'll talk about where I think that, and you where you think that New York Rifle Association case with the Supreme Court, which was argued in November, to be ruled on this summer means for concealed weapons permit. Because of the second amendment, it's not state-by-state. The second amendment is not community-by-community. If since 2008, there is a right to have a handgun for personal protection.

I'm not sure it matters exactly where you live. You could regulate around it. But the problem has not been the good people in shooting other people. I mean, it happens occasionally. Some like you said, somebody loses their head for a moment and in a moment of, you know, whatever, it pulls out a handgun and shoots somebody.

But that, it's the methodical nature of mass murder is not, is not stopped because Michael Popeye has a handgun in his, you know, in his drawer for personal safety. That, that's not, we're regulating sort of the wrong end of it. So that's just, that's just my, it's different than your opinion, but it's just my opinion about my handguns. I don't have an AR-15. Yeah, I was gonna say, no, I think our opinions are more similar than you think.

What I was trying to say was, my opinion evolved when I moved, you know, when I became such a part of the upstate New York community. And I learned sort of what you were saying about the personal protection. And after 9.11, the police couldn't get to us either, and whatever. I actually do understand what you're saying.

But the problem is for people like me, having a gun, even upstate is not an option. I have a kid who's on the autism spectrum and having a gun in my home would not be safe. And, you know, I need to have, so but I do understand others who do and will. But I need them to make sure that people like me and my family are still protected from those individuals who might be mentally ill or evil or racist or hate-filled and you

know what you've got to do something about that you know because you can't allow those individuals to lawfully purchase weapons in this country. It's not right, it's not safe. And I really think that there are laws on the books. And you were saying that New York State has the strongest laws in the country. And it's true. We do.

We passed an illegal possession of a weapon. First of all, it's very hard to get a license in New York State, which is what this case is going to be about, that we're going to talk about that's supposed to come down next month by the Supreme Court, but it's very hard to get a license. Almost nobody can get one. At least in New York City in particular,

but in upstate New York, it's very hard to get a carry permit in your home. It's a different story. But if you illegally possess a gun in this state, you are, the law is that you can be sentenced to up to three, the minimum is three and a half years in prison. There are no other states that have a law like that. In some states, it's a misdemeanor to carry an illegal gun.

And here it's a felony punishable up to three and a half years period full stop. And when I was a prosecutor, one of the hardest things I dealt with was you had a lot of the grandmas that you're talking about in Florida who carry the, you know, carry the, um, shout out to the Miami grandmas. No, but it's true. I can't tell you how many lawful law abiding. Of course. Good people who forgot they had their gun in their purse. I mean, I had people who had gun in their purse would put it through the metal detector to go into the world trade center. Because they forgot about it. Like it was their lipstick or their compass. Yeah, I didn't. That's how much it's a part of their culture to carry a, you know, carry a gun, they don't

even think about it, you know. And of course they weren't trying to do something illegal, of course, or it's in their glove box. And, you know, in all of those situations, I always analyzed it with, is it lawful in their statements? So, you know, we wouldn't, we wouldn't put the full force of New York's, New York State law on the books on them because it's not fair. It's not right. They certainly didn't mean to violate the law. But again, if you come to, if you, if you are traveling 200 miles in order to commit a mass murder that is hate filled and racially filled, there are so many red flags on the books. Put aside that thing that happened at school. That's just the year before. That's just the one we all know about.

I bet if someone did an autopsy into this kid's life and his family, I bet you're gonna find a hundred red flags for whether it's friends, family, or kind of uses it. He killed a cat. He'd be headed or killed a cat. I mean, this parents, same thing happened with Dylan Roof who went into the black church in South Carolina.

The same thing happened with Zion, synagogue, in Pittsburgh. There are always red flags until tell signs for those that are willing to see them and hear them. And we have to, as you said, we have to socialize and normalize. It's okay to report your kid who has mental health problems to keep him away from a handgun. So that dozens of other people, your neighbors won't be shot and killed. It's okay. In fact, it is your requirement to be a part of civilized society to do that, regardless of your beliefs and feelings about the second amendment.

Some families, as you said, just can't have guns in the house. It's for all the different reasons and one of which you talked about. So let's turn now, I wanna do a little bit about the great replacement theory, which I hate, but I wanna talk about that. I also wanna talk about the geniuses of it. Yeah, yeah, okay, we'll do that. And I want to do this. I want to do spring court.

I want to do spring court. Yeah, so three things. We're three things to talk about. Yeah, and we got we got 10 minutes. So let's do it quick. So great replacement theory is a Nazi-based theory that says that that the liberal elite slash Jews, I'm just calling it for what it is, have as part of their dogma, this is a racist trope, by the way, that they will get into power and keep power by taking out Scandinavian and other white people, I.E. Arians, and have them replaced

with highly fertile immigrants who will come in and replace the white people at higher numbers and side with the elite slash Jews. And this is what's called the Great Replacement Theory. It's been, it's been, it's part of the Nazi dogma. It has been adopted one way, shape, or form by every racist group that's ever lived from the KKK to the neo-Nazis

to the QAnon, now mainstream GOP to Fox News. How do we know that? Because you see 400 examples literally that the New York Times tract of Tucker Carlson talking about the elites plan to use immigration in order to achieve their goals in the electorate and in policy. That, ladies and gentlemen, is exactly

the he is articulating and using the vocabulary of the great replacement theory. Why does this matter? He's feeling that's a trick. Right. Why does any of this matter? I mean, it would be like sort of like what a bunch of wackos. It's what we talked about last week. It's because these wackos take action and they are animated and weaponized by this type of doctrine and this type of talk. And that's why there's blood on the hands of Elise Stefano, who's like the number three in the Republican party who also uses that language, Tucker Carlson, Laura Ingramham, and everybody else on Fox News. Because they do it for ratings and so they can have a $30 million house in the Amptons. They don't care that 10 black people in a supermarket, 10 black Americans in a supermarket in Buffalo,

gave their life that 30 or 40 people in New Zealand died because of the great replacement theory and what it did to the minds of the mentally disturbed and sort of disturbed. They don't care what, that it motivated Dylan Roof to go kill black parishioners in South Carolina and pick out that church

for the same reason that the shooter in Buffalo picked out that supermarket in Buffalo. They don't care. And as I said before, they say they're not racists. They say they're not neo-Nazis, but the neo-Nazis think that they're racist and think that a neo-Nazi leader who runs one of these social media platforms for his followers

said, we love Tucker Carlson. Tucker Carlson speaks the truth. So Tucker, you know, the fact that you think that, you know, what you're doing is is blameless. And they actually got on the air. I don't know if you saw this the other day, Karen. He got on the air the other day. Because they had to go silent today after the shooting

because they're responsible for it. The next day they came up with their spin. Their spin is his ideology of the shooter was neither left nor right nor Republican nor Democrat. He's just mentally ill, which is what the Republicans always say when they when they want to pretend Hold on when they want to protect the second amendment. Then he didn't read the 180 page of manifesto and the 30 pages devoted to Jews trying to harm America and the great replacement dairy, where he says, this is the reason that I carved the N word on my rifle and went to a black neighborhood. It's because of you Tucker Carlson.

So I agree with you, but I have to just say one thing. We cannot allow people who struggle with mental illness to be grouped in the same category and maligned by people like this shooter and other shooters. He is not mentally ill. He is evil. He is hate-filled. He is racist. Okay?

People who are mentally ill are not violent. People who are mentally ill are more likely, and they're study after study after study, are more likely to be victims of crime than to be the perpetrators of crime. And so to call this person mentally ill, I think is, it's offensive to me, and it's offensive to me on behalf of people who struggle with mental health issues and mental illnesses. This guy is just, he believes in the same thing that, as you said, that Tucker Carlson believes in and that other neo-Nazis believe in.

These are just hate-filled, racist people who are going out and have an agenda. And we have to figure out a way to stop them. We have to figure out a way for people to lawfully possess guns the way the Second Amendment allows it. And at the same time, identified these individuals who have evil and hatred in their heart and prosecute them for the terrorists that they are. This is what's known as a domestic terrorist. The FBI has a whole unit that they created for domestic terrorists.

It's all about these white supremacists. And they are on the FBI's radar screen. There are red flag laws all over the country. It's time to start identifying these people for who they are and have the government do the investigation and law enforcement do the investigation they need to do. Go on to places like Reddit and 4chan and this other one that I can't remember what it was called that he was using discord I think it was called you know you've got these social media platforms and you've got people on there do your

investigation identify these people and take their guns away from them and put them in prison where they belong because they are evil people. So you So I just want to briefly talk about the ATF released a report yesterday, which I think was timed to the shooting, and it was clearly long in the making. But I thought it was a very interesting report because nothing like this has ever been released by the ATF before. They've always had lots and lots and lots of data, but the ATF has their hands tied because of Republican presidents and Republican leaders in the past

who were influenced by the NRA and influenced by gun rights people to not allow the ATF to share tracing data. And it's something that has frustrated law enforcement for a very long time. You want to be able to trace data. Where you look at, you trace guns that are used in crimes, for example, and release some data

about where they come from and what they do. And so this big report came out, and it's interesting, and people should look at it, because there's some facts that I thought that I just wanted to say. So first of all, they think that that buyers are clearly capitalizing on the Supreme Court's loosening of gun laws through the years. And so there's record number of guns being purchased. And we're in the middle of a spike in a bubble right now that we have in the past as well. And so and a few other just a few other things that were interesting.

There's something called ghost guns, which is a fairly new phenomenon. And these are sort of privately manufactured guns, you know, people who look on the internet and figure out kind of how to make their own gun. And therefore, it's untraceable because, you know, if you use it in a crime, you can't say, oh, this was purchased at this particular location, and it was purchased by a cell and so, and then you can't trace these. And the police have recovered almost 20,000 ghost guns in 2021.

So that's 10 times the number since 2016. So that's gone up significantly. And in California, half the guns used in crimes and recovered at crime scenes were ghost guns. Also, guns are being made just at record, record numbers. In 2000, there were 3.9 million guns that were made in 2020. They made 11.3 million. There's 400 million guns in the US.

That's just a staggering number of guns that are just floating out on the street. And it just thought it was very interesting, you know, that people see, that see these statistics. The other thing that the report called out that I thought was interesting was, you know, there used to be a ban on assault weapons, you know, in this country, but that last in 2004. And so after that, AR rifles, you know, and automatic pistols have just boomed. And they're primarily the Smith and W know, an automatic pistols have just boomed. And they're primarily the Smith and Wessons and Rougers.

They are absolutely the ones responsible for this boom. And they're just making them over and over and over and over again. We are in the middle of another spike of gun buying. We've had a few other spikes, you know. So this one is sort of pandemic related and election related. It's been going on since 2019 and 2020. And another couple of spikes that they had was one in 2013 when Obama was re-elected.

They thought, oh no, he's going to pass gun laws to restricting gun possession. So people run out and buy lots and lots and lots of guns. And the same thing, after every mass shooting, there's a spike in gun purchasing. Because people think, OK, this is the one that's going to cause them to pass laws that I can't buy my gun, so people go out and buy lots of guns. And so those are just some of the facts that I thought were interesting that I wanted to call

out for this show, but let's not talk about the Supreme Court. Yeah, well, just just around out that around that, I had a colleague say to me recently that if Sandy Hook and 23 elementary students being shot and killed in a mass murder is not enough to change policy of Parkland. It's never going to change. And what happened? Right. How many babies, apparently for the GOP, 23 is not the right number. What is the right number of innocent lives and innocent children? No, but Sandy Hook, you be right. Those are babies.

And here, right, and innocent black people. How many have to die before there is political will to go against, you know, the second, it's not going against the second amendment. And we're going to, I want to talk about the second amendment now, because people might say, you know, what's going to happen with the new law that comes out this summer on concealed weapon permit? Well, let me let me frame it first and then you can dive in from your prosecutor experience as we wrap up this show. regulated militia, comma, and then talks about the right to bear arms. Has been interpreted since 2008 in a case called DC versus Heller, which was argued by the same lawyer who was then for the government as a solicitor general Paul Clement, who argued the New York State Rifle Association case, which is going to lead, and we'll talk about it at the end, to a national concealed, a right to carry a concealed weapon under a shall issue set of laws that the

Supreme Court is going to endorse, regardless of where you live, urban setting, rural setting, or otherwise. Paul Clement in 2008 argued the case along with others to convince the Supreme Court that the right to bear arms was individual, that it meant personal, that it wasn't tied to the militia, even though at the start and start, the clause started with a well regulated militia that that was only to set context and didn't define the next part of the clause of the Second Amendment that the right to bear arms shall not be abridged. Before that, it was sort of an open debate whether the Second Amendment actually was a constitutional right to allow an individual to have a gun. And we'll put aside for a minute what type of gun. That decision was written by Justice Scalia.

It was joined by, you remember these people, Alito, Chief Justice Roberts and Thomas. They were all in 08 on the bench. And even Scalia in 08, in saying that the right to bear arms shall not be a bridge, forget about the well-regulated militia, toss that out. That was just an introductory clearing of the throat by the founding fathers. If you look at the history of the Second Amendment, where it came from on the books of all the state constitutions, there was a reason they wanted the average citizen of America to have the right to have a handgun and possess a handgun. But even there, it was not an un... it is not an unlimited unfettered right to bear arms. For instance, Scalia said in the opinion, you don't have to you don't have the right to carry any weapon that you want.

So that's how they've been able to distinguish against certain types of semi-automatic weapons, AR-15s, military grade weaponry. He said, you don't have the right, even Scalia said, we're okay with felons not having guns, guns not being near schools or government property, those types of things. And he actually said that this is not cover dangerous or unusual weapons.

I would argue that an AR-15 military grade or something that could easily be converted into that with a five minutes notice is an unusual or dangerous weapon that our founding fathers had not envisioned. But you see where this is going because the case that's now up that got argued in November so we already have the benefit of the oral argument. Is whether New York's almost total ban let's be frank on concealed weapon permit issuance not giving it except for a very small group of people that are in very dangerous professions, chulers, liquor stores, you know, diamond dealers, that kind of thing. You know, former law enforcement, everybody else is really not able to get a handgun. But is the applicant in that case, isn't he a cop? I thought, well, there's two members of the New York Rifle Association that got denied

their permit. They're concealed weapons permit putting aside the handgun in the nightstand. And I don't really know you could look it up I'm not really sure what their background is but they were denied. And there are states that have on the books and there's a lot of them. It's more than 40, shall issue, meaning. You go in, you're not a felon, you got an ID, you take some basic training, gun training, which is offered at all the gun shops in that particular state, you know, 10 hour course, 15 hour course, and you get a permit, you shut the state shall issue you, your permit for concealed weapons. That is what I think is going to happen, I want to get your opinion in the summer. I think every state that doesn't have a shall issue for concealed weapons permit and makes it hard

or limited is going to get struck down by this ruling. What do you think? I mean, it's pretty clear, especially in the row, what we're seeing with the abortion, And it's pretty clear, especially in the row, what we're seeing with the abortion, the dobs case that's coming out, it's pretty clear, I think, that this is not going to, where they're headed, and that they're not afraid to change the law in situations like this. But I think, look, we say as lawyers, we say, you know, bad facts equal bad laws, you know, and, and, and when you look to appeal a case, you have to make sure that you have good facts because if you have bad facts, you know, it's, that's where you make bad law.

And I do think this is one of those cases where, where I think it's bad facts. And I think I'm just trying to look it up, but I'm pretty sure that he's a cop the guy in this case. Let's say let's say let's say that makes a difference you know I think he's a trained law enforcement look if you're trained law enforcement. And and you're allowed to I think if I remember the facts correctly he's a police officer who has a permit to carry a gun while on duty. And he tried to do the right thing by applying for a permit to carry his gun when he's off duty, his personal gun. And they denied him. And I'm sorry, if you're going to deny him, you know, this is a guy who is trained in law enforcement.

He knows how to carry a gun. He's trying to do the right thing by issuing a permit. And you're going to deny it. I mean, I do think that's partly why this case is so vulnerable and why the Supreme Court's easily going to rule, you know, it's going to, is going to strike it down, strike this law down because it's really a total ban. And what they're trying to say is you can't pretend to have a law that claims to be you know in accord with the second amendment but it really is a total ban because nobody gets

to have them. And you know and so I do think that what they're going to say is is that um shall you're right it's going to be a shell, they're gonna say you must issue them, and you can have certain restrictions. So, for example, you can, as long as there's reasonable time, place, and man, or, you know, and it has to be reasonable. So, they're gonna, I think what they're, where they're gonna land is, you know,

you can do it for self-protection, but you can, and you have to give a permit to people for self-protection, and you have to give a permit to people for self-protection, but you can ban it in certain locations, in sensitive places. I think, for example, if someone's drinking in a bar, you can ban it in those areas, or time square, New Year's Eve, I think you'll be able to ban it. To say all of Manhattan is a sensitive place, I think it's probably gonna be too broad. I, you know, it's gonna be that kind of a thing.

And I do think that we're gonna have to brace ourselves. You know, I do think also, don't forget private businesses are gonna be able to still say, you know, no guns allowed. You know, Starbucks can say, no, no guns are allowed in Starbucks or McDonald's or whatever, you know, or even a mom-to-talk shop on the corner. I'm not sure you're'm not sure. I'm not sure you're right

about that. I think that if this law goes down, yeah, this is my opinion. I mean, I don't know. Private property. You don't think a private business owner can say you can't carry a gun here. No, I do. No. All right. Okay. I mean, I I think that you write that the government can't abridged not private people, but I think that you're right that the government can't abridge, not private people. But I think that depending upon what law that they're accused of violating, I don't think the Starbucks is going to be able to say check your gun at the door. You know, listen, the sad reality is that we're even having to have this debate. The question that is on the question, the sole question, it's so deceptively question, the sole question, you know, it's it's so deceptively evil and how sometimes the Supreme Court frames the question because in the question suggests the answer. This

is the question, the sole question that's up for grabs on the entire second amendment for the summer's decision. Does New York's law requiring the applicants for an unrestricted concealed carry license? Demonstrate a special need for self-defense by late second amendment, because that's what New York requires. Unless you're going to have it limited, like hunting, you can get a license and a cert. But if you want an unrestricted concealed weapons permit, you got to show a special need that you are in an occupation, a profession, you've been the target of an assassination attempt, whatever, you have a special need for self-defense. And they're going to say, you see it coming, that there is not a spec, that that special

need overlay completely undermines and abridges the Second Amendment's right to carry, which is what they've said in 2008 and Heller. And now when they only had Scalia, Thomas, then Justice Kennedy, Alito, Thomas, Roberts, Scalia, and then Justice Kennedy who slid over into the majority. Now they got the numbers. They got six. And you know, but and the hypocrisy of it all that you and I are going to follow when we cover that episode, we cover that, that result. As you know, they're going to throw away the whole historical analysis that Alito has used in the abortion ruling about 14th century medieval, literally medieval

about 14th century medieval, literally medieval scientific analysis of when a life is conceived and the right to an abortion or abortion use, that's going to throw that all out. They're not going to say, and our founding fathers thought you should have a concealed weapons permit. And the problem with this is that it's not just the handgun. It's what you said with the ATF report. It just licensed, small L license, the everyone to go out and arm themselves and then children and young adults to arm themselves.

And then when they fall into the rabbit hole of the internet and are influenced wrongly, and it's not just children and they're malformed minds. It's adults too, obviously. And then they pick up a gun and think that they are doing something proper. You know, and I want to hear your opinion on this, you know we pled that the shooter on the rebuffalo pled not guilty, right? Despite the camera on his head, despite the 180 page manifesto, despite the fact there's no doubt that he shot and killed these people in cold blood. He pled not guilty. I'm just saying, Karen, I know you're a prosecutor and all, but I mean, I know

our system is, you know, you're presumed innocent and so proving guilty. But really, if you're real, if you're, if you're not a coward, because he's a coward, because if he wasn't a coward, he would have committed suicide. I'm sorry. I mean, hopefully before the mass murder, certainly after. Of course, he put the, he couldn't pull the trigger on his own head when he put the gun to his head. He cops sold him to drop it.

He dropped it. If he really thought what he was doing was the you know he's guilty. He's saying, I'm guilty. Your honor. I'll take my punishment. I had to kill those people because I believe the 180 pages of my bullshit manifesto. But no, he said not guilty.

Really quick. I think what the top I was referring to was in hell or by the way, I don't know if the New York. Yeah, I don't think these two were cops. Yeah, they were they were members. Yeah, they were. I don't know if the New York State is. Yeah, I don't think these two were cops. Yeah, but they were, they were members. Yeah, that's interesting. The Heller thing was interesting. They were, they were members

of the New York State Rifle and Pistol Association. Yeah, yeah. From Heller with a cop and yeah. And that's why they gave us the vulnerable. Yes, and they got a restricted permit from the issuing officer, the administrative officer that was issuing permits that day, but he would not give them an unrestricted concealed weapons permit because he said they did not demonstrate a cognizable describing this, how this case is going to go down in flames when they issue the ruling. Because they're going to find, right, that there's no way that is consistent with their 2008 US DC versus Heller. Right.

So this is the thing. So in Heller, again, that was the bad facts makes bad law. That was the one where a cop was trying to do the right thing and they didn't issue it. And I think because the facts were so bad, that's why that law came out. I think if it wasn't a police officer in that circumstance, it might have gone differently, but that's had a ripple effect on so many other cases. I know that California, that is very liberal jurisdiction,

past law that got struck down by the ninth circuit, which is historically one of the most liberal appellate circuits, federal appellate circuits, but they passed a law saying, banning any assault rifles for anyone less than 21 years old. And the ninth circuit unanimously said, sorry, that's unconstitutional, because of underheller.

So I do think that heller set a precedent that is now going, we're gonna have to live with and other laws are going to continually be struck down. But to answer your question about this coward and pleading guilty, I understand what you're saying. And yes, I'm a former prosecutor, but you know, just generally speaking, almost all defendants plead not guilty, especially in serious cases.

The only people who plead guilty at a ratement are people who, you know, are charged with very low level kind of things that are just going to either go away. I mean, it's just very, it's very unreasonable to ask somebody to plead guilty at a ratement for a very serious crime, especially one like this. He also basically legally can't plead guilty because he's not, he hasn't been indicted yet. You know, he would have to waive to support. It's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole

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a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's a whole, there's look, at the end of the day, I'm not even sure the prosecution is ready to file all their charges. You know, he's going to be. Do you think this is a, let me end with this. Is this going to be a federal prosecution as a hate crime, or is this going to be state? Who's going to go first here? I think this is going to be federal.

Look, the one thing is this, I was wondering that myself, because the Buffalo is not some, if this was some tiny little small town that couldn't handle a mass murder prosecution of a hate crime where he's going to get true life and never see the light of day, I can imagine a scenario where the feds would no matter what take it over, but this is Buffalo, New York and they have an excellent de-gay's office there and I, they can handle a case like this. I still think it's probably going to go federal because I think it's more than just a hate crime. You know, a hate crime I think is and a hate crime in New York is a crime that enhances a normal crime. So for example, you can punch someone in the face and it's a misdemeanor,

but then if it's a hate crime and you're doing it because they're black, it enhances the penalty and enhances it, you know, to a stronger penalty. And, you know, so hate crimes I think are meant to enhance lower level things that it has to do with animus, et cetera. This is a mass murder that is more like a terrorist attack, in my opinion, than it is a hate crime. It's just a domestic terrorism. He wasn't just killing a black person because he was in a fight with them. He was looking for black people.

He went to a black neighborhood. And he went to a black neighborhood to, he wanted to create terror in a black community, in a place where they're going to be innocent civilians, living their lives. He inscribed the N word on his gun. He was filming it. I mean, this is a man who, you know, terrorism is a thing you want to instill fear in a particular

group of people. That's what he tried to do. That's what he did. And in the course of doing that, he also took the lives of 10 innocent people. This was a terrorist attack. This is a domestic terrorist attack. I think this needs to be prosecuted federally. I think he needs to get the full force of the Department of Justice handed down against him. And he needs to never see the light of day. Because that's who this guy is.

They need to send a message to all other people like that. And then they need to do an autopsy on this case to see what exactly the red flags were, including the one thing that happened last June, which is one minuscule red flag. I think there's probably a thousand more. And pass laws that say people like Forchan and Reddit and Discord and Twitter and every other social media platform require

them to look for and take down and report to law enforcement. These types of individuals don't allow them, don't allow these platforms to host these things unfettered. I mean, you can't just, you just can't kind of turn your back and say, well, I didn't, you know, in free speech, you know, and these people can do what they want. Free speech has consequences, you know, and free speech doesn't mean you can say anything anywhere at any time. And so I think groups like this that form online that have audiences online and that are really created and inspired and grown online and developed.

I think there needs to be accountability and consequences because this is just outrageous and law enforcement I think can and should figure out what went wrong and prevent this from ever happening again. And you know, look, shout out to law enforcement, I think, can and should figure out what went wrong and prevent this from ever happening again. And, you know, look, shout out to law enforcement, they do do an excellent job. And, you know, I'm not just saying that because I'm former law enforcement, but I really do think they do. And I really think they are responsive. And the FBI, like I said, they do have a domestic terrorism unit and all these white supremacists are on their radar. And, you know, I think they do prevent more of these than we know of and we'll ever know of.

But this is one where we can learn from and we can hopefully stop another one from happening. Yep, Karen, sorry to end on that note, but we've come to the end of this midweek edition of legal AFISOBREING ONE where we look at the Buffalo massacre of black Americans, how it happened, why it happened, the laws that have failed here, the next step related to the Supreme Court on gun control, if any, and what we can do as part of the electorate in electing officials that are going to support reasonable gun control around the Second Amendment. I always learn a lot in both preparing for this and in co-anchoring the show with you. Thanks for bringing your unique and authentic perspective as a former prosecutor as well. Thank you.

Good luck on your trial, Popo. Yeah, I got a trial. Let us know how it is. That's why I have a new background here.. Yeah, I got a trial. Let us know how it goes. That's why I have a new background here. I'm in Miami for a trial. But thanks everybody. It's shout out to the Midas Mighty and the Legal A-Fers.