On
Dec. 5, the NRA filed its opening appellate
brief on behalf of several law-abiding young adults challenging the fed=
eral
ban on dealer sales of handguns and handgun ammunition to persons between t=
he
ages of 18 and 20. The case is Jennings v. Bureau of Alcohol, Tobacco,
Firearms, and Explosives, and will be heard in the U.S. Court of Appeals
for the Fifth Circuit. (A similar case challenging Texas' age limit of 21 f=
or
issuance of concealed handgun licenses remains pending in the trial court.)=
The
appeal challenges a ruling
by the U.S. District Court for the Northern District of Texas, which he=
ld
that the law does not violate the Second Amendment. The lower court
wrongly compared the ban to other restrictions the Supreme Court has said w=
ould
be “presumptively lawful," such as the ban on sales to convicted felon=
s.
In
response, the brief points out that nearly a decade before Supreme Court
decided District of Columbia v. Heller, the Fifth Circuit itself had
held (in the 2001 case of United States v. Emerson) that Second
Amendment claims should be decided based on the amendment's "history a=
nd
text." The history of the Founding era makes clear that 18-year-=
olds
were considered adults for purposes of the right to keep and bear arms; for
example, the Militia Act of 1792 required 18-year-olds to "be enrolled=
in
the militia" and to arm themselves accordingly.
The
brief also argues that the right to possess arms clearly implies a right to
acquire arms—a principle that has been recognized in other areas, such as F=
irst
Amendment law. For example, the Second Circuit Court of Appeals struck
down a New York City anti-graffiti law banning retail sales of marking pens=
and
spray paint to people under 21, even though older friends or relatives could
buy these items for use by legitimate young artists.
Amazingly,
the government makes a similar argument in Jennings, suggesting that=
the
ban on dealer sales is constitutional because young adults could legally
receive handguns or ammunition as gifts, or buy them in private, unlicensed
sales. (The government's argument surely must be causing heartburn at=
the
Brady Center, since the alternatives suggested by the government would not =
be
subject to background checks in most states.)
But
as the NRA's brief notes, "none of the Plaintiffs has found this mode =
of
random scrounging for second-hand pistols from unlicensed individual gun ow=
ners
to be a satisfactory avenue for acquiring reliable, safe, and popular
handguns." And a "friend of the court" brief by the Nati=
onal
Shooting Sports Foundation points out that the ban deprives young buyer=
s of
benefits that are more readily available through licensed dealers, such as
warranties, instruction manuals and safety training.
On
Nov. 28, the U.S. Supreme Court has declined to review the second of two ca=
ses
involving the right to bear arms outside the home. The Nov. 28 denial=
in United
States v. Masciandaro follows an Oct. 3 den=
ial in
Williams v. Maryland.
Masciandaro involved a challenge to the now-re=
pealed
ban on possessing firearms in national parks. The defendant was arres=
ted
after police found him sleeping in his car on National Park Service property
near Washington, D.C. and a search of the vehicle revealed his handgun.&nbs=
p;
Two judges on a three-judge panel of the Fourth Circuit U.=
S.
Court of Appeals upheld the regulation, arguing that the lower courts
should wait for the Supreme Court to provide clearer guidance before striki=
ng
down carry bans.
Williams
was an appeal from Maryland's highest court, which upheld the conviction of=
a
defendant who was caught carrying his pistol in a backpack at a bus stop.&n=
bsp;
The Maryland C=
ourt
of Appeals court held—very wrongly—that the Second Amendment simply
provides no protection for carrying firearms outside the home.
While
the Supreme Court's decision not to hear these cases greatly reduces the ch=
ance
that the court will explore this aspect of the Second Amendment during the
2011-12 term, several excellent cases addressing
carriage outside the home are currently pending in the lower courts.
Those include the NRA-supported cases of Peruta=
v. County of San Diego, which challenges discriminatory permit issuance
under California law; Jennings v. McCraw=
, the
Texas carriage case noted above; and Shepard v. Madigan, challenging
Illinois' complete denial of any lawful way to carry firearms for self-defe=
nse
outside one's home or place of business. Peruta=
is pending in the Ninth Circuit U.S. Court of Appeals; Jennings is
pending in the U.S. District Court for the Northern District of Texas; and =
Shepard
is awaiting action in the U.S. District Court for the Southern District of
Illinois.
On
Oct. 31, the Washington state Court of Appeals affirmed that a gun ban in
Seattle's parks is illegal. The decision =
comes
more than a year after a King County judge sided with several area gun owne=
rs,
the NRA and the Second Amendment Foundation by blocking enforcement of the =
law.
In
2008, the city of Seattle and then-Mayor Greg Nickels (D) enacted a rule th=
at
banned firearms and "dangerous weapons" from city parks, community
centers and other city properties. In 2009, the city added another rule that
banned guns from parks where children are "likely to be present."=
In
October 2009, the NRA and other plaintiffs asked the King County Superior C=
ourt
to strike down the ban as a violation of Washington's preemption statute, w=
hich
forbids localities from enacting this type of ban. Specifically, the
preemption statute says the state preempts the field of firearm regulation,=
and
prohibits cities from regulating firearms—a position supported by an Oct. 2=
008
legal opinion from state Attorney General Rob McKenna (R).
In
response, the city claimed the ban wasn't a "law" or a criminal r=
egulation,
and that it was acting in its "proprietary capacity" as a property
owner.
In
February 2010, the Superior Court of King County struck down the Seattle Ci=
ty
Parks and Recreation rule banning firearms from city parks, including
possession by Right-to-Carry permit holders. The city appealed.
In
the Oct. 31 ruling, the Court of Appeals panel wrote: "We hold t=
hat
under the plain language of RCW 9.41.290 and RCW 9.41.300, the City's attem=
pt
to regulate the possession of firearms at designated park areas and park
facilities open to the public by adopting the Firearms Rule is preempted by
state law."
The
court's opinion further stated, "The Firearms Rule regulates the
possession of firearms at designated city parks and park facilities open to=
the
general public. [The case law on which the City relies] does not support the
City's position that RCW 9.41.290 does not apply because it is acting as a
property owner and setting conditions on use of its property. Except as
authorized by the legislature, RCW 9.41.290 precludes a municipality from
regulating the possession of firearms at city-owned park facilities open to=
the
general public."
Unfortunately,
this long-running case isn't yet over; the city has appealed to the Washing=
ton
Supreme Court.
The
NRA and the California Rifle and Pistol Association Foundation have filed t=
wo
"friend of the court" briefs in U.S. Supreme Court cases involving
the Fourth Amendment's protection against unreasonable searches and
seizures. The cases highlight the importance of other provisions of t=
he
Bill of Rights in protecting the rights of gun owners and hunters.
The
first case, Messerschmidt v. Millende=
r,
involves a civil rights lawsuit brought by Augusta Millender of Los
Angeles. The events leading to the suit began when police searching f=
or a
domestic assault suspect obtained a search warrant for Ms. Millender's hous=
e;
Ms. Millender, then 73 years old, had been the suspect's foster mother 15 y=
ears
earlier. Although the police knew the suspect's gun was a "black
sawed off shotgun with a pistol grip," and officers even had photograp=
hs
of the suspect holding it, they obtained a warrant for, among other things:=
All handguns, rifles or shotguns of any caliber, or any
firearms capable of firing ammunition or firearms or devices modified or
designed to allow it [sic] to fire ammunition. All caliber of ammunition,
miscellaneous gun parts, gun cleaning kits, holsters which could hold or ha=
ve
held any caliber handgun being sought. Any receipts or =
paperwork,
showing the purchase, ownership, or possession of the handguns being sought=
.
Any firearm for which there is no proof of ownership. A=
ny
firearm capable of firing or chambered to fire any caliber ammunition.
At
Ms. Millender's house, officers seized her personal shotgun, which clearly
didn't match the description or photos. (It had a wooden stock and wa=
sn't
sawed off.) Both the trial court and the Ninth Circuit U.S.
Court of Appeals agreed with Ms. Millender that the officers were not
immune from suit, because the warrant failed to meet the Fourth Amendment's
requirement that warrants "particularly describe[e] the place to be
searched, and the persons or things to be seized."
The
government is now appealing the Ninth Circuit's decision. The NRA/CRPAF
brief argues that "Since firearms are lawful to possess and are
constitutionally protected, no basis exists for a search warrant to seize t=
hem
absent rigorous fulfillment of the Fourth Amendment's probable cause and
particularity requirements." The brief goes on to explain that o=
ne
of the original reasons for enactment of the Fourth Amendment was to preven=
t seizure
of firearms, as had occurred in 17th century England and in Colonial Americ=
a a
century later. Likewise, a key purpose of the Fourteenth Amendment wa=
s to
prevent seizure of arms from freedmen after the Civil War.
The
second case, Maikhio v. California,
should be of special interest to hunters—but also to any gun owner who migh=
t be
mistaken for a hunter or fisherman, perhaps by having pro-hunting stickers =
on
his vehicle. That's because the case is an appeal of a California Supreme
Court decision in an illegal fishing case; the court held that a game
warden could stop a vehicle without a warrant or reasonable suspicion if the
"game warden had reason to believe an occupant had recently been fishi=
ng
or hunting."
The
NRA/CRPAF
brief argues that the California Supreme Court's decision wrongly
created a lower standard for hunters and fishermen, in violation of Supreme
Court precedent and in spite of the long and honorable tradition of hunting=
and
fishing in the United States.
On
December 13, 2011, in a victory for self-defense civil rights activists, Los
Angeles County Superior Court Judge James Chalfant
(Department 85 - Central District Courthouse) granted a motion to compel and
ordered the City of Los Angeles, Los Angeles Police Department
("LAPD"), and the LAPD Chief of Police Charlie Beck to produce
documents relating to the LAPD's policies and procedures for processing
applications for a license to carry a concealed firearm.
In
1992 and 1994, the City's unlawful refusal to properly process CCW applicat=
ions
was challenged in two lawsuits. To settle the suits, LAPD agreed to a
court-ordered application processing procedure. The LAPD agreed to a defini=
tion
of "good cause" that was articulated in the settlement, and agreed
that all citizens who request a CCW permit application would be provided a =
CCW
application at any LAPD station house, along with a copy of the LAPD's
procedure for handling the application, and the procedures for appealing the
denial of a CCW application. The settlements also resulted in the
establishment of a Citizens Advisory Review Panel, made up of appointed
citizens who would review CCW applications denied by the LAPD and make
recommendations regarding whether the Chief should reverse the
denial. &n=
bsp; =
; &n=
bsp; =
; &n=
bsp;
The
LAPD has repeatedly failed to honor its legal obligations under the
settlements. It has not made CCW applications and a written copy of the CCW
policy and appeal process available at all station houses. And it has ignor=
ed
the recommendations of the Citizens Advisory Review Panel and has instead
enacted a de facto policy of again issuing no CCWs, despite whatever
showing of good cause the applicants might make.
To
rectify this situation two new legal actions, funded by NRA-ILA and CRPAF t=
hrough
our joint Legal Action Project, were filed.
The
first is a motion to enforce the court's old order in the 1994 case, Assenza v. City of Los Angeles. Some of=
the
original plaintiffs from that Assenza=
case
seek to force the LAPD to reinstate its agreed-to policy of providing
applications and copies of its written policy at all LAPD station houses. In
support of its motion, NRA grassroots activist citizens were recruited to
investigate the LAPD's practices and submitted declarations about their rec=
ent
attempts to get CCW applications. They were frustrated by uncooperative
officers at individual station houses, all of whom had a complete lack of
understanding of the LAPD's application process, and who in almost all
instances could not provide a CCW application to the requesting citizen, mu=
ch
less a copy of the LAPD’s written policy. Perhaps most egregiously, LAPD
officers bluntly told citizens that unless they were celebrities, they
shouldn't even bother filling out the CCW application because they would be
denied a CCW as a matter of LAPD policy.
The
second action is a new lawsuit, Davis v. City of Los Angeles. The ni=
ne
plaintiffs in this suit, some of whom have had CCW applications pending and
unresolved with the LAPD for years, have been subjected to a litany of abus=
es
by LAPD in its handling of their CCW applications relating to LAPD's contin=
ued
failure to comply with the original Assenza
judgment. These abuses include not only the failures to provide appli=
cations
and copies of the written policies at LAPD station houses, but also refusal=
s to
timely consider their applications, failures to respond to inquiries regard=
ing
the status of applications, failures to acknowledge the availability of the
Citizens Advisory Review Panel as a method of appealing denial, and failure=
to
give any weight to recommendations by the Citizens Advisory Review Panel.
As
part of the Davis lawsuit, NRA-ILA and CRPA propounded discovery
requests on the City seeking all documents produced, generated, created,
consulted, referenced, and/or utilized which showed Chief Charlie Beck's
evaluation, assessment, and decision to follow, and not follow, the posi=
tive
recommendations of the Citizens Advisory Review Panel. We also sought
documents relating to the current City and County of LA residents with a=
ctive
CCW licenses issued by Chief Charlie Beck.
The
City refused to turn over any documents relating to these requests based on
frivolous objections such as relevance, attorney-client and work product
privilege, and vagueness, ambiguity, and burdensomeness. We quickly
responded and informed the City that their objections lacked merit, especia=
lly
because all of these requests were public records pursuant to the California
Public Records Act.
The
City also raised the novel, but unsupportable argument, that the Assenza procedures they should have been
operating under in considering the Davis plaintiffs' CCW applications
did not apply to the Davis plaintiffs, or any other citizen in Los
Angeles other than the original Assenza<=
i> plaintiffs.
Thus, the City claimed that it should not have to produce any discovery
materials to the Davis plaintiffs about whether the City's past hand=
ling
of CCW applications complied with Assenza's
procedures because the City argues that such procedures are irrelevant =
to
the City's handling of the Davis plaintiffs' CCW applications. =
Needless
to say, the Court was asked to intervene and we filed a motion to compel to
produce the requested documents. In ordering the City to produce the
documents, the Court noted that the City's attempt to justify its refusal to
turn them over consisted of mere "boilerplate objections," some of
which were not made "in good faith." Furthermore, the Court
indicated that the requests were directly relevant to investigating whether=
the
City is in compliance with the Assenza
Cases Pending
For more detail concerning these cases, go to http://nraila.org=
/legalupdate/.
California – Chal=
lenge to
"May Issue" Carry Law
Peruta v. County of San Diego
California – Ban =
on
Online Ammunition Sales
Parker v. California (Fresno Superior Court) – challenges a ban on direct mail o=
rder
and online purchases of ammunition. The state of California has filed an ap=
peal
to the permanent injunction on the enforcement of the law which was issued =
in
January.
Delaware – Second
Amendment Rights in Public Housing
=
Doe v. Wilmington Public Housing Auth=
ority – challenges restrictions on firearm
ownership for residents of public housing.
Illinois – Ban on=
Gun
Stores in Chicago
Benson v. City of Chicago (U.S. District Court, Northern District of Illinois) -=
- challenges
the ban on gun stores in the city of Chicago.
New York -- Handg=
uns for
Part-Time Residents
Osterweil v. Bartlett (Second Circuit U.S. Court of Appeal=
s) --
challenges New York state law that prevents part-time residents from getting
permits to possess handguns in their homes.
Washington, D.C. =
– Second
Amendment Rights in Public Housing
Scott v. District of Columbia Housing =
Authority
-- challenges restrictions on firearm
ownership for residents of public housing. The court has issued a sta=
y,
postponing any action on this case while the D.C. government issues new
regulations.
NRA-=
ILA
Referrals and NRA-ILA Supported Litigation
Referrals
The NRA maintains a =
list of
attorneys who have identified themselves as willing to consider cases invol=
ving
NRA members. If a referral is given, the member must negotiate fees and
arrangements with the attorney directly. By providing referrals, we are not=
endorsing
or recommending any attorney on the list for any purpose -- the attorneys on
the list have simply asked to be placed on our list but have not been vette=
d by
the NRA.
Supported Litigation: How NRA-ILA Accepts Cas=
es
NRA-ILA cannot generally insert itself into litigation in which we =
are
not a party. In order to get involved, we must be invited by a party=
or
the court. Feel free to let us know about cases that may be of interest;
however, please do not contact us to become involved in cases to which you =
are
not a party.
NRA-ILA generally assists in cases that affect the Second Amendment
civil liberties or civil rights of large numbers of our members and gun own=
ers
in general, rather than those involving a dispute between individual partie=
s.
The basic questions we ask when reviewing a potential case are:
Unfortunately, despi=
te the
thousands of requests for assistance we receive each year, there are many
legitimate and compelling cases in which NRA-ILA is simply unable to assist=
, as
we do not have unlimited resources. We regret that we cannot provide assist=
ance
in many cases even if they fall within the guidelines discussed above. To t=
hat
end, we encourage you to contact the NRA Civil Rights Defense Fund (www.nradefensefund.org), which
provides legal and financial assistance to selected individuals and
organizations defending their right to keep and bear arms.
Important Note Re=
garding
Deadlines
All legal claims hav=
e time
deadlines. These deadlines may be different depending on the nature of the
issue and the parties involved. For some kinds of civil cases, you may need=
to
file a claim with a government agency before you can sue, and agencies have
their own time deadlines.
If you do not comply=
with
the applicable deadlines, you may be legally barred from pursuing your clai=
m in
court. Contacting us to describe your problem does not mean that we represe=
nt
you, nor does it stop the statute of limitations from running. NRA-ILA cann=
ot
give you advice about the specific deadlines that apply to your case. To
protect your rights, please consult an attorney promptly to find out what
deadlines may apply to your particular situation.
Tell Us What You Think!
If you hav=
e any
comments on the NRA-ILA Legal Update or suggestions for topics, please e-ma=
il
us at legalupdate@nrahq.org.
Please do not send requests for legal assistance to this address. Those sho=
uld
be sent to the attention of NRA-ILA Legislative Counsel via phone at (703)
267-1161; fax to (703) 267-1164; or e-mail to ILALegal@nrahq.org.
|
Obama administration
officials are deliberately keeping gun owners in the dark about the
president's gun-control agenda as we head into next year's national
election... |
|
Taking a break from
inciting "occupy protests" around the country, professional
huckster Jesse Jackson recently returned to one of his longtime battle-cr=
ies:
"Limit guns now."... |
|
The botched gun-track=
ing
operation Fast and Furious was a plot hatched by the Obama administration=
to
impose stricter gun laws, a House Republican said... |
|
It was all a lie. The=
angry
denials, the high dudgeon, the how-dare-you accuse-us bleating emanating =
from
Eric Holder's Justice Department these last nine months... |
|
=
The ranking Republica=
n on
the Senate Judiciary Committee on Wednesday called for the resignation of
Assistant Attorney General Lanny Breuer, who =
heads
the Justice Department's Criminal Division... |
|
Governor Scott Walker=
has
signed Wisconsin Castle Doctrine legislation into law. This common-sense
measure strengthens the right of law-abiding citizens to use force, inclu=
ding
deadly force, against an attacker in their homes... |
|
=
Gun-rights advocates =
are
doubly relieved with Peoria County Circuit Judge |
|
=
Ohio Attorney General=
Mike
DeWine and New Mexico Department of Public Safety Cabinet Secretary Gorden E. Eden, Jr. have signed an agreement that p=
ermits
reciprocity between their states... |
|
=
Congressman Joe Walsh
(IL-8) introduced the Second Amendment Protection Act that would cut off =
all
funding to the United Nations if the United States agrees to any treaty t=
hat
infringes on the constitutional rights of American citizens... |