Prosecutors say Max Misch, a white supremacist from Bennington, gambled and lost on a constitutional challenge to a law that limits the size of ammunition magazines in Vermont — and that he shouldn’t get a do-over.
Misch, 38, was criminally charged more than two years ago with violating that law shortly after it went into effect. Soon after, Misch, through his attorneys, moved to dismiss the case contending that the law violated Article 16 of the Vermont Constitution dealing with the right to bear arms.
A state judge rejected his argument and the Vermont Supreme Court upheld that judge’s ruling.
Last week, through an attorney, Misch again filed to get the charges against him thrown out, this time claiming that the charges against him violate protections provided under the Second Amendment of the U.S. Constitution.
Photo by Mike Dougherty/VTDigger
Now, state prosecutors in Vermont’s Attorney General’s Office have submitted their own filing calling on Judge Cortland Corsones to allow the case against Misch in Bennington County Superior criminal court to proceed and to end Misch’s efforts to delay the proceedings.
“Defendant made a strategic decision to forego asserting a parallel Second Amendment claim in the hope of securing a ruling that the state constitutional right is more expansive,” Vermont Solicitor General Benjamin Battles of the state’s Attorney General’s Office wrote in a filing submitted this week.
“That decision backfired,” Battles wrote, adding, “Defendant’s last-ditch attempt to escape the consequences of his own strategic choices and the Vermont Supreme Court’s decision in this case should be rejected.”
Vermont Attorney General TJ Donovan said in an email Friday, “We are confident that the Vermont law is constitutional under both the Vermont and United States constitutions.”
Rebecca Turner, supervising attorney with the Office of the Defender General who filed the motion on Misch’s behalf, declined comment Friday when reached by email.
Misch was charged in February 2019 with two misdemeanor counts of illegally possessing two 30-round magazines. Prosecutors say they were purchased in New Hampshire after Gov. Phil Scott signed into a law a bill limiting magazine sizes to 15 rounds for handguns and 10 for long guns.
Misch is the first and only person to be charged under that law since it went into effect.
In addition to limiting a magazine’s size, the law also expanded background checks, banned bump stocks and raised the legal age for purchasing a firearm to 21.
Scott backed the bill that eventually became law after an 18-year-old Poultney man was accused that February of plotting a shooting at Fair Haven Union High School. Jack Sawyer was arrested by Vermont State Police just days after a school shooting in Parkland, Florida, that left 17 people dead. He was sent in 2019 to an out-of-state treatment facility.
Misch, through his attorney in a filing last week, argued that the Second Amendment to the U.S. Constitution prevented the state from restricting ammunition magazine size.
“Though the State has argued that the statute defeats constitutional concerns because it can point to a compelling interest in reducing the likelihood and harm of a mass shooting in Vermont,” that filing stated, “the State cannot impose a total ban of protected conduct under the United States Constitution just because such conduct might lead to harm.”
Battles, of the Vermont Attorney General’s Office, wrote in his response to that filing that Misch’s earlier attempt to have the charges thrown out based on state constitutional grounds made sense at the time because federal courts had “consistently rejected” Second Amendment challenges to magazine restrictions like the one in Vermont.
And at the time, the Vermont Supreme Court had “not yet thoroughly examined the contours of the Article 16 right” in the state’s constitution.
“Defendant embraced this strategy and likewise chose to forgo a Second Amendment claim in his initial motion to dismiss,” Battles wrote.
“Defendant’s strategy failed and now, after this prosecution has already been delayed for years, defendant has finally decided to take his second shot and seeks to start the process anew,“ Battles added. “The Court should exercise its discretion to deny (the) defendant’s motion as repetitive and untimely.”
Misch has pleaded not guilty to the two misdemeanor charges of illegally possessing high-capacity magazines. If convicted of the offenses, he faces up to a year in prison.
Misch is also facing other criminal charges, including two unrelated misdemeanor counts of disorderly conduct, one of them a hate crime. In that case, Misch allegedly hurled racist slurs during an altercation with a Black man on a street in Bennington last year.
The other disorderly conduct charge stems from an incident in late August 2020, when police alleged he caused a public disruption while a Black Lives Matter mural was being painted in downtown Bennington.
While he has repeatedly been charged with violating the conditions of his release, Misch remains free on release conditions.
Misch avoided charges in another matter that was investigated by the Vermont Attorney General’s Office. In that one, Donovan announced in January 2019 that he would not bring charges against Misch, or anyone else, for racial harassment of Kiah Morris.
Morris had been the only Black woman in the state Legislature when she decided to resign in the summer of 2018, citing in part the racial harassment. Misch had admitted to racially harassing Morris.
