NRA-ILA Legal Update | June 2012

JUNE 2012

Oral Arguments Presented in Illinois Right-to-Carry Case

In perhaps the clearest case in the country addressing the right to bear arms outside the home for self-defense, oral arguments took place June 8 in Chicago, before the United States Court of Appeals for the Seventh Circuit. Shepard v. Madigan involves lead plaintiff Mary Shepard, an Illinois resident and trained gun owner with no criminal record, who is licensed to carry a concealed handgun in both Utah and Florida.  Unfortunately, she has no legal way to do so in Illinois as soon as she steps away from her home or place of business.  The National Rifle Association is funding this case, and our state affiliate, the Illinois State Rifle Association, is a co-plaintiff on behalf of its members who share Mrs. Shepard’s plight.

On September 28, 2009, while working as the treasurer of her church, Ms. Shepard and an 83-year-old co-worker were viciously attacked and beaten by a six-foot-three-inch, 245 pound man with a violent past and a criminal record.  Ms. Shepard and her co-worker were lucky to survive, as each of them suffered major injuries to the head, neck and upper body.  Ms. Shepard's injuries required extensive surgeries and she continues physical therapy to this day, as she tries to recover from her injuries.

“The Second Amendment guarantees an individual right to keep and bear arms and the right to self-defense,” said NRA-ILA Executive Director Chris W. Cox.  “The state of Illinois' severe and irrational restriction on self-defense is an abettor in the terrible attack on Ms. Shepard and her co-worker.  Illinois is the only state to completely deny law-abiding residents the right to carry a firearm for self-defense outside the home, which is both unconscionable and unconstitutional.  The NRA will continue to fight to ensure that the Second Amendment rights of all law-abiding Americans are protected throughout the country.”

In the opening brief on behalf of Ms. Shepard, her attorneys note that “Illinois is the only state in the Union that flatly forbids law-abiding citizens from carrying operable firearms in public for self-defense.  Illinois attempts to defend this ban as a public safety measure, asserting that mayhem would ensue if law-abiding citizens were licensed to bear weapons in public.  The inconvenient truth that every other state in the nation allows some form of public carriage of firearms by at least some private, law-abiding citizens—and does so without fostering the mayhem forecast by the Defendants here—gives the lie to Illinois's pleas that firearms in the hands of any and all law-abiding citizens are uniquely a threat to public safety in this state, even if nowhere else in America.”

Attorneys for both sides faced probing question from the three-judge panel; audio of the 45 minutes of argument is available online here. Please note that the Shepard case was consolidated with and argued alongside a similar case (Moore v. Madigan); Ms. Shepard’s attorney, former Assistant Attorney General Charles J. Cooper, argues second. Questioning the attorneys are (in order of appearance) Judges Richard A. Posner, Ann Claire Williams and Joel M. Flaum.

Federal Court Finds More Limits to Chicago Gun Restrictions

Since 2010, when Chicago’s aldermen responded to the U.S. Supreme Court’s decision in McDonald v. City of Chicago by rushing to impose the harshest possible restrictions on residents’ Second Amendment rights, the city’s new laws have been under legal attack. On June 19, Judge Samuel Der-Yeghiayan of the U.S. District Court for the Northern District of Illinois became the latest judge to undermine the city’s anti-gun ordinance, in the NRA-supported case of Gowder v. City of Chicago.

In 1995, Shawn Gowder, a Vietnam veteran living in a high crime area, was convicted as a first-time offender for simple possession of a firearm in violation of Illinois law. His misdemeanor record did not block him from possessing a gun under federal law, or from getting a state Firearm Owner’s Identification card, so he could still legally possess a gun in Illinois.

Nonetheless, when Mr. Gowder applied for a Chicago Firearm Permit (a requirement newly imposed after the McDonald decision), the Chicago police denied his application. Mr. Gowder sued the city. Mr. Gowder (represented by attorney Stephen Kolodziej) argued that Chicago’s law that bans non-violent misdemeanants from possessing guns in their homes for self-defense is unconstitutionally vague and violates the Second Amendment.

The court agreed on both counts. First, Judge Der-Yeghiayan found the city’s ordinance unconstitutionally vague because it “does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited.” That’s because the ordinance denies permits to persons convicted of “unlawful use of a weapon,” but while Mr. Gowder was convicted under a state law that refers to “unlawful use of a weapon,” that law also applies (as in Mr. Gowder’s case) to people who simply possess firearms under certain circumstances.

The court also agreed with Mr. Gowder’s Second Amendment challenge. Unlike other cases involving felons or people convicted of violent domestic misdemeanors, there was no evidence that Mr. Gowder is “a risky person or embodies the type of violent citizen” not entitled to exercise the right to arms. And as the court pointed out, non-violent misdemeanants were not historically prohibited from possessing guns, either in 1791 when the Second Amendment was passed or in 1868 when the Fourteenth Amendment applied the Second Amendment to the states. In a thorough and scholarly analysis, the court made clear that it would reach this same conclusion under any standard of review that might be applied; but notably, the court expressly rejected intermediate scrutiny as the proper level of review for infringements on the core Second Amendment right, holding that a higher standard should apply.

Other provisions of Chicago’s ordinance remain under attack in the NRA-supported case of Benson v. City of Chicago, which is now pending before a different judge in the same court.  But the Gowder ruling is historic because it marks the first finding that a criminal conviction for mere possession of a firearm is insufficient to deprive a person of his Second Amendment rights in the future. Mr. Gowder also deserves credit personally for his principled stand in rejecting a settlement offer that would have granted him a permit, while leaving the law intact against other people with similar minor records.


After 13 Years, Ninth Circuit Nordyke Ruling Allows Gun Shows On Alameda County Fairgrounds

An epic Second Amendment case may finally have come to an end. On June 1, 2012 an expanded panel of the Ninth Circuit Court of Appeals issued its ruling in Nordyke v. King, a case that began in 1999 with gun show promoters Russ and Sallie Nordyke’s challenge to a gun ban on county property, which effectively banned gun shows at the county fairgrounds. The case has continued ever since, with numerous trips up and down the ladders of the federal and state judicial systems as the Second Amendment landscape has shifted. (Those interested in the full saga can find the key filings at www.michellawyers.com/nordyke-v-king/.)

In its decision, the court ruled that it would hold the county to its concession that the Nordykes could hold a gun show on the Alameda County fairgrounds property, so long as the guns were secured to the exhibit tables with wire cables.

In essence, Alameda County blinked. There is a dispute between the parties about exactly when that happened, but after years of maintaining that its ordinance prohibited gun shows entirely, the county decided it would rather switch its position than continue to fight the lawsuit. The en banc panel jumped on that position in reaching its decision.

The NRA provided extensive financial and logistical support to the case since it was filed. Noted NRA and California Rifle and Pistol Association attorneys including Don Kates, Stephen Halbrook, and Chuck Michel all provided assistance through several “friend of the court” brief campaigns, and the NRA subsidized the case by advancing the associated costs for years. San Jose attorney Don Kilmer, representing the Nordykes as the owners of the gun show, saw the case through from start to finish.

The Nordyke family also deserves the thanks of the Second Amendment civil rights community for putting up with the strain of litigation all these years. In fact, showing what fighters they are, in light of the Ninth Circuit’s opinion the Nordykes are submitting gun show plans to Marin, San Mateo, and Santa Clara counties to force those jurisdictions to allow gun shows on their fairgrounds. Those counties adopted essentially the same ordinance as Alameda, and have been interpreting them to prohibit gun shows. Unless those counties adopt Alameda County’s concession and allow gun shows on their fairgrounds, they will face similar lawsuits. Hopefully, in these times of budgetary deficits, and considering the rapidly evolving body of Second Amendment jurisprudence, the counties will see the wisdom in Alameda’s concession and allow gun shows to take place.

The Ninth Circuit opinion dodges the issue of the appropriate level of judicial scrutiny to be applied by a court when a law is challenged on Second Amendment grounds. Several other cases brought by the NRA and CRPA Foundation in California may serve as vehicles for addressing that issue in the Ninth Circuit, and several cases in other circuits raise the issue as well.


Second Amendment Challenge to Cook County Gun Ban Moves Forward

On April 5, the Illinois Supreme Court unanimously denied an attempt by Cook County, Ill., to dismiss a challenge to the county’s California-style ban on countless types of common semi-automatic firearms. The National Rifle Association supported the case brought by the NRA's state affiliate, the Illinois State Rifle Association.

In its decision, the court reversed a lower appellate court’s ruling that upheld the ban merely because it was “similar” to bans that had been upheld elsewhere. But of the three cases cited by the lower court, two relied on “facts” provided in legislative findings and testimony by anti-gun legislators and gun ban lobbyists; the third involved a challenge to federal regulation of fully automatic machine guns, rather than semi-automatic firearms.

Adopting a much more rigorous approach, the Illinois Supreme Court found it couldn’t say the guns banned by Cook County “categorically fall outside the scope of the rights protected by the [Second Amendment].” Therefore, the case has been returned to the trial court for more fact-finding.

Key to the final outcome will be evidence that the guns in question are “in common use” and “typically possessed by law-abiding citizens for lawful purposes,” which are the standards that the U.S. Supreme Court suggested would determine whether a particular type of “arm” falls within the Second Amendment’s protections.

On that issue, the numbers are overwhelming. Based on production statistics published by the Bureau of Alcohol, Tobacco, Firearms and Explosives, about 3.1 million AR-15 rifles have been made just since 1986, and AR-15s alone made up 4.3 percent of all firearms and 13.3 percent of all rifles sold in the U.S. from 2007 to 2010. The AR-15, of course, is just one of the many firearms banned in Cook County. These figures go to show that Cook County hasn’t just banned “common” guns; it has banned the most popular rifles of our time, used by countless law-abiding Americans for every kind of lawful purpose.


Kentucky Supreme Court Protects Campus Workers and Visitors

On April 26, the Supreme Court of Kentucky issued its opinion in the NRA-supported case of Mitchell v. University of Kentucky. Siding with those who exercise their Right to Carry, the court ruled that a gun owned by a Right-to-Carry permit holder and kept out of sight inside a vehicle cannot be barred from university property. The court also held that any lawful gun owner can do the same if the gun is kept in the glove compartment of a vehicle, and that university employees cannot be punished for exercising the same right.

In its opinion, the court closely followed the reasoning in the NRA’s “friend of the court” brief. While the ruling reflects an important win for all gun owners in the Bluegrass State, the decision represents a major victory in NRA-ILA’s ongoing efforts to ensure employees are able to exercise their right to self-defense on the way to and from the workplace.

The case began in 2009 when Michael Mitchell, a UK graduate student who also worked as an anesthesia technician at the university’s medical center, ran afoul of the university’s anti-gun policy after he admitted storing a firearm in his vehicle while it was parked on university property. UK’s policy prohibited possession of a gun on school property or while conducting university business. Mitchell was fired and the university fought to keep him from collecting unemployment benefits.

Taking his case to court, Mitchell argued that the firing was contrary to his right to bear arms as protected by Kentucky law, the Kentucky Constitution and the U.S. Constitution.  The Fayette County Circuit Court disagreed and upheld Mitchell’s firing. Following the disappointing ruling, Mitchell’s appeal found its way to the Kentucky Supreme Court.

In the court’s opinion, Justice Wil Schroder cites Kentucky’s public policy exception to “at will” employment practices; an employer may not terminate an employee if the firing is contrary to a “well-defined public policy” or based on the “exercise of a right conferred by well-established legislative enactment.” The court determined that Kentucky law clearly “forbids a public organization such as a university, from prohibiting the possession of a firearm in a glove compartment of a vehicle.” Therefore, a person storing a firearm in the glove box of a vehicle cannot be fired or punished for exercising this right, even on university property.

In Mitchell’s case, there was some dispute as to whether the firearm was stored in the glove compartment of his vehicle, so the case required further analysis due to a conflict within the Kentucky statutes. One section of the statutes makes clear that a Right-to-Carry permit holder (such as Mitchell) storing a firearm in a vehicle is not to be interfered with by any public or private entity. But another part of the statutes allows colleges and universities to regulate such activity.

To resolve the conflict, the justices had to search out the intent of the Kentucky General Assembly in enacting these laws. Fortunately for Kentucky gun owners, the statute itself says “this section shall be liberally construed to carry out the constitutional right to bear arms for self-defense.” This led the justices to determine that that any ambiguity in the law must be interpreted in favor of the rights of permit holders.


Fifth Circuit Rules Against Indefinite Firearm Seizures

This May, New Orleans was back in the gun rights headlines when the U.S. Court of Appeals for the Fifth Circuit issued its latest ruling in Houston v. City of New Orleans. The case once again shed a light on the city government’s propensity for firearm confiscation.

The case stems from a July 2008 traffic stop in which Errol Houston, a Right-to-Carry permit holder, was charged with illegal possession of a firearm and other offenses. Prosecutors later dropped all charges against Houston. Despite this, the Orleans Parish District Attorney’s Office and New Orleans Police Department refused Houston’s requests to have his firearm returned. After a year of denials, Houston decided to take his case to federal court.

In taking the case before the U.S. Court of Appeals for the Fifth Circuit, Houston’s attorneys from the ACLU of Louisiana argued that the continued retention of his firearm violated his Second Amendment rights. In response, District Attorney Leon Cannizzaro argued that since the government could conceivably re-file the original charges against Houston at any point within six years of the arrest, it could hold onto the firearm until the clock ran out.

In March of this year, the Fifth Circuit ruled in favor of the City of New Orleans. In the opinion, Judge Rhesa Hawkins Barksdale wrote, “The right protected by the Second Amendment is not a property-like right to a specific firearm… Houston has not alleged defendants prevented his ‘retaining or acquiring other firearms’… Therefore, he has not stated a violation of his Second Amendment right.”

In a dissent that was both well reasoned and impassioned, Judge Jennifer Walker Elrod noted her colleague’s error: “In reaching this conclusion, [the majority] holds the Second Amendment does not protect an individual’s ‘property-like right to a specific firearm’ unless the government has prevented him from ‘retaining or acquiring other firearms.’ This exception cannot be reconciled with Heller and McDonald.”

To drive home the absurdity of the majority opinion, Judge Elrod suggested how the majority’s reasoning might apply in other areas of law:

Consider, for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece. Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasing a replacement vehicle.

Following the outrageous ruling, Houston’s lawyers petitioned to have the case reheard. In May, the Fifth Circuit granted the petition and reversed itself, abandoning its strange reading of the Second Amendment. The new opinion simply notes that two state statutes “mandate the return of property … to its lawful owner when it is not contraband and is no longer needed by law enforcement.” The opinion returned the case to a lower court, where, if the government attempts to further retain Houston’s firearm, the district attorney will be required to make the case that the government has an “active ‘use’ or ‘need’” for the gun.

The new ruling represents an important victory for gun rights, property rights and due process in Louisiana as it ensures prosecuting attorneys must prove a legitimate need for retaining property after charges against a person have been dropped. The NRA worked with Houston’s ACLU counsel, sharing NRA’s expertise on the Second Amendment aspects of the case, and also filed a “friend of the court” brief on Houston’s behalf.


Court Filing Challenges Los Angeles’ 17 Years of Defiance on Carry Permits

For decades, the City of Los Angeles has denied carry permits to all but a tiny handful of residents. In March, a motion was filed on behalf of the NRA in a long-running case that seeks to change that.

The papers, filed in the Superior Court for the County of Los Angeles, urge that the court find the city in contempt for failing to comply with a 1995 court ruling that requires the city to provide a more transparent and equitable procedure for those seeking concealed carry permits.

The filing follows a June 2011 judgment in favor of the NRA and California Pistol and Rifle Association, granting a motion brought by the groups that forced the city to meet the requirements of a 1995 ruling in the case of Assenza v. City of Los Angeles. The judgment in the Assenza case made clear that that the Los Angeles Police Department was legally obligated to process applications and issue permits to those who could show “good cause.” The Assenza decision required the LAPD to make permit applications and procedure information available at station houses upon request, and established a Citizen Advisory Review Panel for reviewing application denials and making recommendations to the LAPD on whether a denial should be reversed.

Since 1995, the LAPD has systematically ignored the court. As of 2011, there were only 24 active concealed carry permits in the city of nearly 4 million people. In preparation for the 2011 legal action, the NRA sought activists to navigate the city’s permit procedure and report back. The investigation found LAPD officers to be generally uninformed as to permit application procedures; in at least one case, an officer discouraged a resident from applying unless the person was a celebrity. Further flouting the law, LAPD had ignored the recommendations of the Citizen Advisory Review Panel. As part of the 2011 ruling, sworn declarations of compliance with Assenza were required of LAPD’s 21 station house commanding officers.

Unfortunately, the June 2011 judgment didn’t mark the end Los Angeles’ discriminatory practices. A further investigation by NRA activists and a private investigator in September and November of 2011 revealed the same problems that have plagued residents since 1995, including a lack of available paperwork and information regarding the application process, as well as uncooperative officers. The investigator, who visited all 21 LAPD station houses, only received the paperwork required by the Assenza ruling at five. The findings were in stark contrast to the compliance promised in the sworn declarations that LAPD commanders were forced to sign.

The March 2012 motion sought to remedy the situation by urging the court to hold the city in contempt. In making the case for contempt, the motion cited an observed non-compliance rate of over 75 percent, as well as the dubious nature of the city’s past declarations of compliance. As a result, the court has ordered Police Chief Charlie Beck to appear and show cause why he should not personally be held in contempt for violating the orders. That hearing is set for Sept. 12 in the Los Angeles Superior Court.

Additionally, in February the chief was forced to give deposition testimony on the department’s practices. The videotaped testimony contains information as to the chief’s biased personal views on gun control and his belief in denying law-abiding residents of the City access to permits.

Though progress against these entrenched policies may be slow, the most recent developments show that the NRA will continue to work towards a future in which all law-abiding residents of Los Angeles have the right to carry outside the home.


Michigan Court Clarifies Limits on “Gun Free” Zones

With the rise of Right-to-Carry laws in the United States over the past 25 years, gun owners often face a daily headache of understanding where firearms may and may not be legally carried. State laws, in particular, create a hodgepodge of “gun free” zones, depending on which hysterical anti-gun talking points happened to get traction in a particular legislature.

Fortunately, the courts sometimes help clarify these issues, and that’s exactly what has happened in the case of People v. Watkins, handed down June 5 by the Michigan Court of Appeals.

In 2010, Right-to-Carry permit holder Roger Watkins was arrested for carrying a pistol at a home and garden show held in Michigan State University’s “Pavilion for Agriculture and Livestock Education.” The conviction, under a state university regulation that forbids carrying a firearm on the campus in violation of state law, was based on the prosecutor’s argument that the pavilion was a “sports arena,” and therefore off limits to those carrying handguns under Michigan law.

Watkins appealed to a county circuit court, which reversed his conviction on the grounds that the university had failed to give any notice that might warn permit holders that the pavilion was a “sports arena.”

The state then appealed to the Court of Appeals, Michigan’s second-highest court. Unfortunately for the state, the Court of Appeals agreed the conviction should be overturned, but for an even stronger reason. As the Court of Appeals saw it, the only “arena” in the pavilion was a “show arena” primarily used for livestock exhibitions. Therefore, the prosecution had failed to prove that the building was a “sports arena” or that Mr. Watkins had broken any law.

NRA-ILA attorneys provided extensive research support to Mr. Watkins’ lawyer from the earliest stages of the case, and we are pleased that the court’s decision may provide some needed guidance to Michigan prosecutors and permit holders.


Federal Court in Arizona Rules for Sportsmen and Conservationists

In May, sportsmen were the winners when a federal judge ruled in favor of the U.S. Fish and Wildlife Service’s conservation efforts in the Kofa National Wildlife Refuge in Arizona. The NRA, along with several other hunting and conservation groups, has been active in supporting USFWS’s position since the suit was filed against it in 2008.

The case was the result of a suit filed by anti-hunting group Wilderness Watch, with the support of other “stay out of the woods” organizations, who objected to the USFWS’s building of two artificial water sources aimed at supporting a stable bighorn sheep population. Wilderness Watch argued that building the water sources violated the federal Wilderness Act’s ban on man-made structures on land covered by the act, including the Kofa Refuge. The USFWS defended its actions by arguing that the water sources developed for the conservation of bighorn sheep fall under an exception to the act, which provides that “wilderness areas shall be devoted to public purposes of recreation, scenic, scientific, educational, conservation, and historical use.” Conservation of bighorn sheep was understood to be a primary reason for President Franklin D. Roosevelt’s 1939 establishment of what was originally called the Kofa Game Range.

In December 2010, the Ninth Circuit Court of Appeals took up the case after the anti-hunting groups appealed an earlier U.S. District Court ruling in support of the USFWS. In its opinion, the Ninth Circuit determined that there were limitations to the Wilderness Act’s prohibition on structures, stating, “The Wilderness Act requires a delicate balancing between Congress’ desire to maintain lands untouched by humans and Congress’ recognition that such an ideal is subject to some practical limitations,” However, the Ninth Circuit also determined that the USFWS had failed to justify why the structures were necessary. Therefore, the Ninth Circuit reversed the earlier lower court ruling and returned the case to the District Court.

In May, the district court in Arizona determined that the water sources can stay in place while the USFWS produces materials providing an adequate justification for building of the structures.

While the case is not yet over, this ruling is an important victory for sportsmen and conservationists, who seek to strike a balance between enjoying our wilderness today, and preserving it for future generations.

NRA Referrals and NRA-Supported Litigation

Referrals

The NRA maintains a list of attorneys who have identified themselves to us as being willing to consider cases involving NRA members.  If a referral is given, the member must negotiate fees and arrangements with the attorney directly.  Further, by providing referrals the NRA is not endorsing or recommending any attorney on the list for any purpose—the attorneys on the list have asked to be placed on our list and are not systematically vetted by the NRA.

Supported Litigation: How the NRA Accepts Cases

The NRA cannot generally insert itself into litigation when it is not a party.  For the NRA to “get involved,” we must be invited by a party or by the court.  Please feel free to let us know about cases that may be of interest to the NRA, but do not contact us to “get involved” in cases to which you are not a party.

What Does It Cost?

NRA assistance, if any, is determined on a case-by-case basis.

How Does the NRA Choose Cases?

The NRA generally assists in cases that affect the Second Amendment civil liberties or civil rights of large numbers of people, rather than those involving a dispute between individual parties. The basic questions we ask when reviewing a potential case are: (1) Is this a significant Second Amendment civil liberties or civil rights issue or a vital but derivative civil liberties or civil rights issue? (2) What effect will this case have on people other than the applicant? (3) Do we have the necessary resources to take this case?

Why the NRA Turns Down Some Cases

Unfortunately, there are many cases of unfairness and injustice in which the NRA is simply unable to assist. We receive thousands of requests for help each year. Therefore, we regret that we cannot provide assistance in many cases even if they fall within the guidelines discussed above.

Important Note About Deadlines

All legal claims have time deadlines. The 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 these 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 the NRA to describe your problem does not mean that the NRA represents you, and will not stop the statute of limitations from running. The NRA cannot give you advice about the deadlines that apply to your case. To protect your rights, please consult an attorney promptly to find out what deadlines may apply to your case.

Tell Us What You Think! If you have any comments on NRA-ILA Legal Update, or any suggestions for topics you would like to see addressed, please e-mail us at [email protected].  Please do not send requests for legal assistance.