Max Misch, of Bennington, speaks to reporters on May 30, after a hearing on a case in which he is accused of illegally owning two 30-round gun magazines, allegedly bought after Vermont banned the magazines in December. Photo by Alan Keays/VTDigger
The prosecution and the defense are asking a judge to allow the Vermont Supreme Court to weigh in on the constitutionality of the charges of illegally possessing high-capacity magazines against Max Misch, a self-professed white nationalist online troll.
If granted, it could affect a separate civil case brought by gun rights supporters also challenging the constitutionality of the magazine limits.
Judge William Cohen last month rejected a bid from Misch’s attorneys to throw out the two misdemeanor counts following a hearing in that criminal case in Bennington County Superior criminal court.
That ruling allowed the case to proceed to trial on the charges against Misch of possessing magazines over the size limits set in a new law.
Now, Vermont Solicitor General Benjamin Battles of the Vermont Attorney General’s Office, which is prosecuting the case, and public defender Frederick Bragdon, who is representing Misch, have filed a joint motion seeking to have Cohen’s ruling reviewed by the Vermont Supreme Court before moving on to a trial.
Misch is the first person charged under the magazine-limit provision of a gun control law, Act 94, that passed the Legislature. That legislation was signed into law by Gov. Phil Scott in April 2018.
That same magazine limit provision of the law is also being contested in a state civil court lawsuit. The lawsuit, brought by gun rights supporters, remains pending in Washington County Superior civil court.
The joint motion seeking to appeal Cohen’s ruling in the Misch case is signed by the attorneys for both sides.
“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,” the filing stated.
The motion added, “Finally, a Supreme Court decision in Mr. Misch’s favor would finally dispose of this action, as the challenged statute is the sole basis for the charges against Mr. Misch in this matter.”
Judge Cohen had not yet ruled on whether to allow the matter to be appealed to the Vermont Supreme Court.
Bragdon, Misch’s public defender, said Wednesday that he hoped to have a ruling from the judge on the appeal request soon.
“We did not prevail at the trial court on our motion so we’re seeking the Supreme Court’s review to see whether the trial’s court ruling is good law,” he added.
Solicitor General Ben Battles at the Supreme Court in February. Photo by Glenn Russell/VTDigger
Battles, with the Attorney General’s Office, said he believed it made sense to have the Supreme Court decide the constitutionality issue.
“We knew that this issue was going to end up at the Vermont Supreme Court, either in this case or in the other case, and our determination was that we wanted clarity on the law sooner rather than later in both cases,” Battles said.
“It’s the same issue as to whether the magazine law violates Article 16,” he added, referring to Vermont’s Constitution. “I think that a decision in Misch concerning the constitutionality of the statute would likely resolve the civil case as well.”
Battles, who is also handling that civil case, said he had conversations with those plaintiffs about the matter. “We’ve been in discussions with them about filing a similar motion in the civil case or possibly staying the civil case,” he added.
A great deal will depend on whether the judge will allow the appeal in the Misch case at this stage, Battles said. Should the judge decide against allowing that appeal, he said, both the Misch case and the civil matter will proceed on a trial path.
Chris Bradley, president of the Vermont Federation of Sportsmen’s Clubs and a plaintiff in the civil case, said Wednesday there was little he could say on the matter.
“I respectfully have to decline discussing this, as you know I am a plaintiff in the case,” he said. “I will say only that the federation expected this case to go to the Supreme Court.”
In the Misch case, prosecutors contend the new law is constitutional. They say it doesn’t prevent someone from using a firearm in self-defense; the measure only sets limits on the permissible magazine size.
The defense have made several arguments on why the charges should be tossed out, including that the cap on a firearm’s magazine size violates Article 16 of the Vermont Constitution. That article states that “people have the right to bear arms for the defence of themselves and the state.”
Attorney General TJ Donovan, right, before the House Democratic Caucus on Jan. 22, explaining his decision not to prosecute the people who harassed former representative Kiah Morris of Brattleboro. Photo by Glenn Russell/VTDigger
The charges against Misch came about a month after Vermont Attorney General TJ Donovan held a press conference in Bennington, where he announced that he wouldn’t be bringing any charges against Misch, or anyone else, for racist harassment against former Vermont state representative Kiah Morris, D-Bennington. Morris was Vermont’s only female African American legislator.
Vermont State Police say in court records that Misch and his ex-wife went to a store in Hinsdale, New Hampshire, just over the border from Vermont, and purchased two 30-round magazines there on Dec. 1, which was after the new law went into effect.
Police said they later searched Misch’s apartment in Bennington and seized the magazines.
Vermont’s new gun law set limits for magazine sizes of 15 rounds for handguns and 10 rounds for long guns.The measure also contained a “grandfather” clause, exempting from the law magazines purchased before the provision went into effect.
Read the story on VTDigger here: White nationalist’s gun magazine limit case may head to state’s high court.