NRA-ILA Legal Update -- December 2011

Posted on December 28, 2011

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Opening Briefs Filed in Federal Age Limit Challenge

On Dec. 5, the NRA filed its opening appellate brief on behalf of several law-abiding young adults challenging the federal ban on dealer sales of handguns and handgun ammunition to persons between the 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 for 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 held that the law does not violate the Second Amendment.  The lower court wrongly compared the ban to other restrictions the Supreme Court has said would be “presumptively lawful,” such as the ban on sales to convicted felons.

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 and 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 First 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 owners to be a satisfactory avenue for acquiring reliable, safe, and popular handguns.”  And a “friend of the court” brief by the National Shooting Sports Foundation points out that the ban deprives young buyers of benefits that are more readily available through licensed dealers, such as warranties, instruction manuals and safety training. 

Supreme Court Declines to Hear Carry Cases

On Nov. 28, the U.S. Supreme Court has declined to review the second of two cases involving the right to bear arms outside the home.  The Nov. 28 denial in United States v. Masciandaro follows an Oct. 3 denial in Williams v. Maryland

Masciandaro involved a challenge to the now-repealed ban on possessing firearms in national parks.  The defendant was arrested 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.  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 striking 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.  The Maryland Court 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 chance 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-defense 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.

Washington Court Rules That Seattle Gun Ban is Illegal

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 owners, 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 that 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 Court to strike down the ban as a violation of Washington's preemption statute, which 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. 2008 legal opinion from state Attorney General Rob McKenna (R). 

In response, the city claimed the ban wasn’t a “law” or a criminal regulation, 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 City 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 that under the plain language of RCW 9.41.290 and RCW 9.41.300, the City’s attempt 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 Washington Supreme Court

NRA Briefs Defend the Fourth Amendment

The NRA and the California Rifle and Pistol Association Foundation have filed two “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 the Bill of Rights in protecting the rights of gun owners and hunters.

The first case, Messerschmidt v. Millender, involves a civil rights lawsuit brought by Augusta Millender of Los Angeles.  The events leading to the suit began when police searching for a domestic assault suspect obtained a search warrant for Ms. Millender’s house; Ms. Millender, then 73 years old, had been the suspect’s foster mother 15 years earlier.  Although the police knew the suspect’s gun was a “black sawed off shotgun with a pistol grip,” and officers even had photographs 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 have 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. Any 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 wasn’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 them absent rigorous fulfillment of the Fourth Amendment’s probable cause and particularity requirements.”  The brief goes on to explain that one of the original reasons for enactment of the Fourth Amendment was to prevent seizure of firearms, as had occurred in 17th century England and in Colonial America a century later.  Likewise, a key purpose of the Fourteenth Amendment was 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 might 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 fishing 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. 

City of Los Angeles Forced to Turn Over Documents Regarding Concealed Carry License Decisions

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 applications was challenged in two lawsuits. To settle the suits, LAPD agreed to a court-ordered application processing procedure. The LAPD agreed to a definition 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.

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 ignored 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 through 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 recent 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, much 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 nine 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 abuses by LAPD in its handling of their CCW applications relating to LAPD’s continued failure to comply with the original Assenza judgment.  These abuses include not only the failures to provide applications and copies of the written policies at LAPD station houses, but also refusals to timely consider their applications, failures to respond to inquiries regarding 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 positive recommendations of the Citizens Advisory Review Panel. We also sought documents relating to the current City and County of LA residents with active 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, especially 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 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 handling 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 judgment and the requirements of Penal Code section 12050.      

Cases Pending

For more detail concerning these cases, go to /legalupdate/.

California – Challenge to “May Issue” Carry Law

Peruta v. County of San Diego, (U.S. Court of Appeals for the Ninth Circuit) -- challenges San Diego County Sheriff William Gore’s refusal to issue carry permits to qualified applicants.

California – Ban on Online Ammunition Sales
Parker v. California (Fresno Superior Court) – challenges a ban on direct mail order and online purchases of ammunition. The state of California has filed an appeal 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 Authority – 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 -- Handguns for Part-Time Residents

Osterweil v. Bartlett (Second Circuit U.S. Court of Appeals) -- 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 stay, 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 involving 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 vetted by the NRA.

Supported Litigation: How NRA-ILA Accepts Cases

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 owners in general, rather than those involving a dispute between individual parties. The basic questions we ask when reviewing a potential case are:

Is this a significant Second Amendment civil liberties or civil rights issue or a vital but derivative civil liberties or civil rights issue?

  1. What effect will this case have on people other than the applicant?
  2. Do we have the necessary resources to take this case?

Unfortunately, despite 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 assistance in many cases even if they fall within the guidelines discussed above. To that 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 Regarding Deadlines

All legal claims have 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 claim in court. Contacting us to describe your problem does not mean that we represent you, nor does it stop the statute of limitations from running. NRA-ILA cannot 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 have any comments on the NRA-ILA Legal Update or suggestions for topics, please e-mail us at legalupdate@nrahq.org. Please do not send requests for legal assistance to this address. Those should 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.

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