District of Columbia
Status of cases that fund has agreed to support.ALABAMA
Stan Pate (Alabama). He responded to a trespass, a theft, and a third degree burglary on his property. There were three culprits in the building (a closed restaurant). They were ordered to leave. The police came. The police were not in view when one of the culprits entered the building again. Pate ordered him to leave again. Pate had a shotgun. The trial court found that Pate did not point the shotgun. However, Pate was charged and convicted of menacing, a misdemeanor. In his written ruling, the court held that the presence of the police on the premises caused Pates right to defend his property to evaporate. A pro bono amicus brief was prepared to be filed in the Alabama Court of Criminal Appeals to address this issue. Jay Porter, a member of the Alabama bar, prepared and filed the brief. He was assisted by James Porter and Robert Dowlut. The Alabama Court of Criminal Appeals ordered on June 20, 2011, that the amicus brief be filed.ARIZONA
Roger Barnett (Arizona). Counsel for Mr. Barnett informed in a letter of April 14, 2009, that this is an appeal to the U.S. Court of Appeals for the 9th Circuit from a civil trial where damages were awarded against Mr. Barnett. He encountered 20 illegal aliens on his ranch crossing into Arizona from Mexico. He held them for the Border Patrol. The Border Patrol arrested them and took them back to Mexico. Activists on behalf of illegal aliens filed a civil lawsuit. The jury rejected most claims but found against Mr. Barnett for assault and for infliction of emotional distress. The U.S. District Court judge refused to give a selfdefense instruction and a limiting instruction on the infliction of emotional distress claim. The case is on appeal.
Harold Fish (Arizona). Mr. Fish is a retired school teacher. He was attacked on a trail by a man armed with a screw driver and two vicious dogs. Nevertheless, he was indicted on a charge of second degree murder. A jury found him guilty of second degree murder on June 16, 2006, after two days of deliberation. An appeal was filed. The case was discussed on Dateline NBC on October 7, 2006. The appeal was successful. The Arizona Court of Appeals on June 30, 2009, reversed the conviction. It held that (1) evidence of victim's specific prior acts of violence and aggression that were unknown to defendant at the time of the charged incident was inadmissible under the character-evidence rules to show that victim was the initial aggressor; (2) evidence of victim's specific prior acts of violence and aggression that were unknown to defendant at the time of the charged incident was inadmissible under the character-evidence and other-acts rules to show defendant's state of mind and the reasonableness of his response to victim; (3) evidence of specific acts of violence by victim when confronted about his dogs was relevant under the other-acts rule to corroborate defendant's description of the events leading up to the shooting; (4) defendant was entitled to his requested jury instructions that, for purposes of self defense, unlawful physical force included the statutory elements of endangerment, threatening or intimidating, and aggravated assault; and (5) error in trial court's failure to give defendant's requested jury instructions that, for purposes of self defense, unlawful physical force included the statutory elements of endangerment, threatening or intimidating, and aggravated assault was not harmless. State v. Fish, 2009 WL 1872146 (Ariz. App.); see also 2009 WL 1879479 (Ariz. App.). Also, a bill was signed into law on July 13, 2009, that applied retroactively to the Fish case a new law on self-defense. Whereas Fish had to prove at his trial that he acted in self-defense, it is now up to the prosecution to prove at trial that Fish did not act in self-defense. On July 16, 2009, the prosecution stated that the case would not be retried.
Tucson Rod & Gun Club (Arizona). Since 1953 the club has had a public shooting range on Forest Service property. The club operated under a special use permit administered by the Forest Service. The Forest Service decided not to renew the permit based on a claim that the club is no longer compatible with the area. It was subsequently discovered that the real reason was an aversion to target practice by civilians. Subsequently, the Forest Service asked the club to apply for a permit to relocate the range to a different site, somewhat farther into the forest. The range would be of considerably larger size. The new site will be more distant than the present one, about 20-30 minute's drive from the edge of the city, but will be two to three times larger than the present site, and able to accommodate action shooting and sporting clays, as the present site does not. Counsel advised on October 17, 2007, that the Club submitted its plans for a new range (prepared by range engineer Clark Vargas) to Forest Service. Forest Service is now evaluating the plans, and preliminary indications are favorable. Counsel informed on July 24, 2008, that the Forest Service is "under new management" locally, and they are enthusiastic about the range reopening at a new location. USFS and the club have agreed upon the location and the plans, and they have reviewed the club's draft permit application. The club anticipates submitting a final application in July 2008. The club's original permit area was 17 acres; the new permit area will be over 80 acres, enabling addition of a sporting clays range, action pistol bays, and a western town facade for cowboy action shooting. Counsel informed on August 13, 2009, that the gun club submitted its proposal for a new range to the Forest Service, which reviewed it and ruled it acceptable. The club is now in the final level of review, which requires preparation of an environmental assessment. While this is normally an agency obligation, to accelerate matters the club is negotiating to have it done by a private firm for the Forest Service. Counsel informed on August 1, 2011, that the consultant for the range is preparing the environmental reports required by NEPA. A local dude ranch operator holds a Forest Service grazing lease covering part of the proposed range area. While he initially was willing to give this up (because it would put the range farther from his dude ranch), he has recently become reluctant. Efforts are being made to persuade him and, if that fails, Forest Service has the power to move his leasehold without his consent.
Prescott Sportsmens Club (Arizona). This is an effort to shut down or impede a shooting range that has been in existence since 1957. Counsel for the club informed on November 22, 2010, that a housing development has built adjacent to the club. Their direct efforts to shut down the club proved unsuccessful. Consequently, they filed a complaint with the Arizona Department of Environmental Quality. The case is presently in the administrative enforcement stage. The club anticipates resolving the matter through negotiation and ideally avoiding any administrative and court adversarial proceedings. Counsel informed on August 1, 2011, it is continuing to negotiate a resolution with the Arizona Department of Environmental Quality.CALIFORNIA
Nordyke v. County of Alameda (Calif.). This case involves a challenge to a gun show ban. The U.S. District Court denied Nordyke's motion for a preliminary injunction. Nordyke appealed. The U.S. Court of Appeals for the 9th Circuit on September 12, 2000, certified to the California Supreme Court a question on firearm preemption. The California Supreme Court concluded that the municipal ordinance in question, insofar as it concerns gun shows, is not preempted. There was a dissenting opinion. The case is reported as Nordyke v. King, 27 Cal.4th 875, 118 Cal.Rptr.2d 761, 44 P.3d 133 (2002). On September 30, 2002, a supplemental brief was filed in compliance with the U.S. Court of Appeals' order that supplemental briefs be filed addressing federal constitutional issues, including the Second Amendment. On February 18, 2003, the court held that the facial challenge to the ordinance based on infringement of expressive conduct fails. Regarding the Second Amendment, the court opined that this guarantee should be revisited. The court also hinted that the individual rights view is the correct view of the Second Amendment and stated the issue is ripe for en banc review. Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003). A petition for en banc review was denied on April 5, 2004. Strong dissents were made. The U.S. Supreme denied a petition for a writ of certiorari on October 4, 2004: Nordyke v. King, No. 03-1710. Nordyke refiled and mounted a First Amendment challenge. The U.S. District Court on September 28, 2005, denied the defendants motion to dismiss. The case went through the discovery process. Alameda County filed yet another motion to dismiss. Counsel for Nordyke filed a reply brief which on July 10, 2006. The court dismissed the lawsuit on April 18, 2007. An appeal was filed on the First Amendment issue in the U.S. Court of Appeals. The Nordykes brief was filed on November 13, 2007. The Second Amendment and its application to the states through the Fourteenth Amendment were subsequently briefed in response to the courts sua sponte order. Oral argument occurred on January 15, 2009. The court held that the Second Amendment applies to the states and local government. Nordyke v. King, U.S. Ct. App. 9th Cir., April 20, 2009. The court subsequently decided to hear the case en banc. Oral argument occurred September 24, 2009. The court stayed proceedings until the U.S. Supreme Court decides McDonald v. City of Chicago. On June 28, 2010, the U.S. Supreme Court held that the Second Amendment applies to states and local government through the Fourteenth Amendment. McDonald v. Chicago, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The case was remanded back to a three-judge panel. The court issued its decision on May 2, 2011. It adopted a substantial burden framework for the Second Amendment. The court affirmed the district courts grant of summary judgment to the County on the Nordykes First Amendment and equal protection claims. However, because the Nordykes may still be able to allege sufficient facts to state a Second Amendment claim, the court vacated the district courts denial of leave to amend the complaint to the extent that the denial was with prejudice, and remanded the case to the district court for further proceedings. Nordyke v. King, 2011 WL 1632063.
Edward Peruta and Others (California). This is a challenge based on the Second Amendment and Fourteenth Amendment to the California statute that requires a showing of good cause before a license to carrying a pistol concealed is issued. The U.S. District Court denied relief on December 10, 2010. Peruta v. County of San Diego, 758 F.Supp.2d 1106 (S.D. Cal. 2010). Its reasoning included the fact that an unloaded pistol may be carried unconcealed while possessing ammunition at the same time. An appeal was taken to the U.S. Court of Appeals for the 9th Circuit. The appellants brief was filed on May 23, 2011, and the reply brief on September 6, 2011.COLORADO
Mountain States Legal Foundation (Students for Concealed Carry on Campus) (Colorado). This is a lawsuit in state court against the Board of Regents of the University of Colorado. The university has a broad prohibition on the possession of firearms or other dangerous weapons. The students claim they have a statutory and constitutional right as adults to keep and bear firearms in defense of person and property. The students won their case in the Colorado Court of Appeals. Students for Concealed Carry on Campus v. Regents of University of Colorado, 2010 WL 1492308 (Colo. App.). On October 18, 2010, the Colorado Supreme Court agreed to review the case. The opening brief was filed on December 20, 2010. The National Rifle Association filed an amicus curiae brief on January 24, 2011. Oral argument took place on June 8, 2011.
Gray Peterson (Colorado). He is a resident of Washington State, where he has a license to carry a pistol concealed. He also has a non-resident license to carry a pistol concealed from Florida and Utah. Colorado does not issue a license to carry a pistol concealed to a non-resident. Colorado also does not recognize license reciprocity with Washington State or a license issued by another state to a non-resident. However, Colorado does allow the unconcealed carrying of arms, forbids the carrying of arms concealed or openly without a Colorado license. Therefore, Mr. Peterson is banned from carrying arms for self-defense outside his motor vehicle or home. The U.S. District Court rejected a challenge on right to bear arms grounds and the comity clause of the U.S. Constitution. Peterson v. LaCabe, 2011 WL 843909 (D.Colo.). An appeal was filed. The funds amicus brief was filed in the U.S. Court of Appeals for the 10th Circuit on June 15, 2011.
Metacon Gun Club (Connecticut). The club was attacked in state and federal court in an effort to shut it down. The effort was based on environmental law and nuisance. The plaintiffs formed a LLC for the purpose of bringing the lawsuit. The state and federal court actions were filed on May 13, 2004. An additional state court action was filed on July 2, 2004. Metacons motion for summary judgment and dismissal was filed in the U.S. District Court for the District of Connecticut on February 10, 2006. The court dismissed one of the environmental claims. The court set an aggressive discovery and trial schedule. Metacon filed a comprehensive motion to dismiss and for summary judgment in January 2006. The superior court ordered one state case to be withdrawn. A motion for summary judgment was filed in the remaining state case counts on October 3, 2006. The superior court ruled in favor of Metacon. The U.S. District Court ruled in the clubs favor. It held there was no Clean Water Act violation. Simsbury-Avon Preservation Society v. Metacon Gun Club, 472 F.Supp.2d 219 (D. Conn. 2007). Counsel informed on April 14, 2008, that all of the federal and state actions against Metacon have been concluded in favor of Metacon. Unfortunately, plaintiffs appealed from the favorable ruling to the U.S. Court of Appeals for the Second Circuit. The Court of Appeals held on July 31, 2009, that: (1) spent munitions and their remains accumulating on gun club's property did not constitute solid waste under RCRA; (2) discarded lead at club did not present imminent and substantial endangerment to health or environment; (3) berm and shooting range at gun club did not constitute jurisdictional wetlands under CWA; (4) berm did not constitute point source under CWA; and (5) lead shot discharged from firing line of shooting range was not discharged into jurisdictional wetlands. Cordiano v. Metacon Gun club, Inc., 575 F.3d 199 (2d Cir. 2009). Counsel for Metacon informed on September 24, 2009, that the club would seek to recover attorney fees from the plaintiffs for their meritless lawsuit.
Blue Trail Shooting Range (Connecticut). This is an effort by adjoining property owners to shut down the range. On June 4, 2008, a lawsuit was filed in state court in New Haven claiming the range is an endangerment to person and property and a public nuisance. An August 14, 2008, report in the New Haven Register states state officials from the Department of Environmental Protection say that the reopening of one of the shooting areas at the range will not pose a hazard to individuals using Tri-Mountain State Park, which borders the range. A second lawsuit was filed on August 28, 2008, claiming a cause of action under the state environmental protection act. In the first lawsuit a motion to dismiss was filed on February 17, 2009. In the second lawsuit a motion to strike was filed on March 2, 2009. On October 29, 2010, the court dismissed the Town of Wallingford as a defendant. The consolidated actions were tried to the court on December 7, 8, 9, 14, 16 and 18, 2010. On July 15, 2011, the court issued judgment in favor of the shooting range and other defendants.
M. Peter Kuck & James F. Goldberg (Connecticut). These cases involve the revocation or denial of a permit to carry a pistol. In each case the delay between the unfavorable action and the opportunity for a hearing was from 14 to 22 months. The issue is due process and incorporation of the Second Amendment through the Fourteenth Amendment. Oral argument occurred before the U.S. Court of Appeals for the Second Circuit on September 17, 2009. The case is captioned Kuck v. Danaher and Goldberg v. Danaher. On March 23, 2010, the court held that a person has a liberty and a property interest in a Connecticut permit to carry in view of Connecticuts guarantee to bear arms for self-protection and the decisions of Connecticut courts. The court further opined that a procedural due process claim was stated based on eighteen months delay between a permit denial and a hearing. Kuck v. Danaher, 600 F.3d 159 (2d Cir. 2010). Mr. Goldberg was also granted relief on March 23, 2010. He challenged in U.S. District Court the firearm permit revocation procedures on due process grounds. The court dismissed his complaint. The Court of Appeals reversed that dismissal.
James F. Goldberg (Connecticut). The issue is probable cause to arrest for the open and lawful carrying of a firearm. He was arrested for breach of the peace, but the charge was dismissed. His pistol and carrying permit were returned to him. A lawsuit under 42 U.S. Code 1983 was filed in U.S. District Court. The court denied relief on September 17, 2010. An appeal was taken to the U.S. Court of Appeals for the Second Circuit. Mr. Goldbergs appellate brief was filed on March 18, 2011.
Robert Riith (Connecticut). He was the victim of a crime, and an order of protection was entered naming him as the protected person. Bizarrely, Mr. Riith's firearms were seized even though he was a victim of a crime and there is no legal bar to him possessing a firearm. His motion for return of the firearms was granted by the Superior Court on June 2, 2010, and his firearms were returned.DELAWARE
Jane Doe and Charles Boone v. Wilmington Housing Authority (Delaware). The housing authority imposed a ban on the possession of firearms, even in the home. A lawsuit was filed challenging the ban as an infringement of the right to keep and bear arms. In the wake of McDonald v. Chicago, 130 S.Ct. 3020 (2010), the housing authority suspended its ban on firearm ownership by tenants. It announced on August 9, 2010, that it was working on new firearm regulations. The lawsuit continues in U.S. District Court because some of the regulations are unconstitutional. A hearing and argument occurred on July 15, 2011.DISTRICT OF COLUMBIA
Asar M. Mustafa (District of Columbia). Counsel informed that the Metropolitan Police Department denied on April 14, 2009, Mr. Mustafas application to register a firearm. The denial was based upon an arrest that subsequently resulted in a dismissal of all charges. The grounds for the denial are history of violent behavior. First of all, the charges that were dismissed did not involve violence. Secondly, because he is presumed innocent and because no misconduct was proven after a hearing in which he has been able to confront his accuser, the denial should be reversed. An appeal was filed to the Office of Administrative Hearings. A hearing was held on October 28, 2009. The Office of Administrative Hearings denied relief on February 3, 2010. An appeal was to be filed in court. Counsel informed on March 17, 2011, the District of Columbia agreed to allow Mr. Mustafa to refile his application and that they will not use the dismissed charges against him. In the interim, the parties have agreed to hold the appeal brief in abeyance until his new application is processed.
Dave Magnus (District of Columbia). He is challenging previous misdemeanor convictions under District of Columbia law for possessing a pistol and ammunition for the pistol in his home and for carrying a pistol in his home without a license. The convictions occurred prior to the Supreme Court's decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008). The superior court denied a motion for post-conviction relief. An appeal was taken to the District of Columbia Court of Appeals. His attorney requested that the fund file an amicus curiae brief. Mr. Magnuss brief was filed on March 16, 2010. The funds brief was filed March 23, 2010. Oral argument occurred on October 22, 2010. The court held that he could challenge the conviction on Second Amendment grounds. Magnus v. United States, 11 A.3d 237 (D.C. App. 2011).
Frederick Baird (District of Columbia). He was hunting in Virginia. An officer spotted a gun bag in his truck and he was charged with possession of an unregistered firearm and possession of ammunition for an unregistered firearm. On September 21, 2009, he pled guilty to attempted possession of an unregistered firearm. The court did not order any of the seized property forfeited. Nonetheless, the police refuse to return to him his property. He has been provided with no notice reasonably calculated to inform him of the reason why the property is held and why it is not being returned. A lawsuit was filed on March 18, 2010, in the United States District Court for the District of Columbia. The defendant filed his reply in support of his motion to dismiss on June 18, 2010. On July 29, 2011, counsel informed that the court still had not ruled on the motion.
David Leyland (District of Columbia). He was visiting the District of Columbia. He has a valid North Carolina permit to carry a pistol. He was arrested after he asked a police officer at a security desk where to check his firearm when he was visiting the Washington Monument. He pleaded guilty to possession of unregistered firearms, was given a 180 days suspended sentence, and placed on unsupervised probation for 6 months. On August 9, 2010, counsel sent to the property clerk demanding the release of his property. However, the firearms are being detained without a hearing and without forfeiture proceedings. This is violative of due process. A complaint pursuant to Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), was filed in U.S. District Court for the District of Columbia on December 30, 2010. Defendant filed a motion to dismiss. The court granted the motion on July 6, 2011. It held that a Bivens action fails because of a comprehensive procedural and remedial scheme for individuals seeking the return of seized property: Superior Court Rules of Criminal Procedure 41(g).
Matthew Corrigan (District of Columbia). He contacted a telephone suicide hotline. The police broke into his home and seized firearms and ammunition. He was arrested and was charged with possession of unregistered firearms and possession of ammunition for unregistered firearms in the home. He was released on bail on February 19, 2010. He wants to challenge the registration statute. Counsel informed on January 31, 2011, that he filed motions to dismiss and to suppress.
William L. Duncan (District of Columbia). He is a pastor of a Baptist church in Johnson City, Tennessee. Pastor Duncan is licensed to carry a pistol in Tennessee. He visited the District of Columbia and was staying at a hotel. Private security at the hotel asked if he had any firearms. He stated that he did and that the pistols were in his motor vehicle. He was arrested and charged in the District of Columbia with carrying a pistol without a license, a felony punishable by up to 5 years imprisonment. On July 16, 2010, all charges were dismissed in D. C. Superior Court. He attempted to retrieve his two pistols that are still in the custody of the Metropolitan Police Department. A complaint was filed in U.S. District Court for the District of Columbia on December 30, 2010.FLORIDA
Colin Bruley (Florida). The issue was whether defense of another creates a public policy exception to Florida's at will employment rule. While the general rule is that the employer is the master of the work place, there is a public policy exception. There are pertinent examples from sister states. The Washington Supreme Court held in Gardner v. Loomis Armored, Inc., 913 P.2d 377 (Wash. 1996) (en banc), that Loomis could not terminate Gardners employment for violating a reasonable work rule (leaving his post) because it would violate public policy (the saving of a bank employees life). Defense of self and others is a public policy exception to the at will employment rule. Feliciano v. 7-Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001). Mr. Bruley was fired on June 12, 2007, when he saved a womans life. He filed a lawsuit in the Duval County Circuit Court on September 25, 2007. The defendants removed the lawsuit to U.S. District Court for the Middle District of Florida. On December 9, 2008, the court granted a motion for summary judgment in favor of Village Green Management Company. Here is part of the courts opinion: "Contrary to Bruleys arguments, Florida has no exception [to Floridas established rule for termination of at-will employment] even where termination is founded on an employees exercise of constitutional rights.... [W]hatever Second Amendment right Bruley may have to possess a firearm in his apartment, it cannot be stretched to create a wrongful discharge cause of action under Florida law against a private employer which fires an employee for carrying a firearm on company property. ... [W]hile Bruleys actions in saving the shooting victim are commendable and defendants action in summarily firing him seems an overreaction, his termination does not give rise to a cause of action because Florida law does not recognize an exception to at-will termination based on the circumstances here. ... As a matter of Florida law, Bruley has no cause of action." Bruley v. Village Green Mgt. Co., 2008 WL 5158285 (M.D. Fla. 2008). Mr. Bruley appealed to the U.S. Court of Appeals for the 11th Circuit. His brief was filed February 23, 2009. The court upheld the decision of the district court denying relief in an unpublished opinion on September 24, 2009.
Michael Carr (Florida). He was charged twice in Florida with a criminal offense, but the charges were dropped. However, this occurrence has resulted in him being placed on a list of known firearm owners. This is in violation of Floridas preemption statute. Florida Statutes 790.335. A lawsuit was filed in the Seminole County Circuit Court on August 11, 2010. The complaint alleges a violation of 790.335, trespass, invasion of privacy, civil theft, battery, and negligent investigation. A jury trial is demanded.
Richard Lander (Florida). He has a federal firearms license. However, he has been denied a Largo city home office permit to sell firearms from his home. The police department opined that it would be a legal business and that they did not think they could legally oppose. However, the city development director decided to label the business a potential nuisance or hazard and denied the permit. The administrative appellate process was first utilized in an attempt to overturn the denial before appealing to the courts. After the administrative process was exhausted, on July 18, 2011, a lawsuit was filed in circuit court.GEORGIA
Dennis Kast (Georgia). The issue is whether the lawful carrying of a firearm provides probable cause to search the person and his motor vehicle. No charges were filed. A civil rights action was filed under 42 U.S. Code 1983 in the Cobb County Superior Court on February 18, 2011. The claim is based on the Second and Fourth Amendments and the analogous guarantees of the Georgia Constitution. There is a possibility that the defendants may remove the case to federal court.ILLINOIS
Otis McDonald & National Rifle Association (Illinois). Lawsuits were filed in U.S. District Court challenging Chicagos handgun, which is similar to the handgun ban struck down on Second Amendment grounds by the U.S. Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008). The issue is whether the Second Amendment applies to the states through the Fourteenth Amendment. The court denied relief. An appeal was taken to the U.S. Court of Appeals for the 7th Circuit. That court also denied relief. The U.S. Supreme Court agreed to hear the case of Otis McDonald on September 30, 2009. The court did not issued a decision in National Rifle Association v. Chicago. However, the court is still treated the NRA as a party for the purpose of filing the merits brief. The merits briefs were filed by Mr. Donald and by NRA on November 16, 2009. Supporting friend of the court briefs were filed no later than November 23, 2009. Chicago and Oak Park filed their brief no later than December 30, 2009. Oral argument occurred on March 2, 2010. On June 28, 2010, the U.S. Supreme Court held that the Second Amendment applies to states and local government through the Fourteenth Amendment. McDonald v. Chicago, 130 S.Ct. 3020 (2010). On August 25, 2010, the 7th Circuit panel held the issue is now moot because the challenged ordinance was repealed and a new ordinance enacted. Attorney fees are being pursued pursuant to 42 U.S. Code 1988. On June 2, 2011, the U.S. Court of Appeals held in NRA v. Chicago that NRA was a prevailing party and that it was entitled to attorney fees. Thus the adverse decision of the U.S. District Court was reversed.
James Mitchell (Illinois). On October 11, 2008, a large group of people went on tractor pulled hay ride. They stopped and drank alcohol at a number of bars. They also had alcohol with them. A number of them stopped, came on to Mr. Mitchells property, and started urinating in his back yard. It was dark. Mr. Mitchell came outside his home and objected. They refused to leave. There were about ten of them. One of the men cursed and physically attacked Mr. Mitchell and was wounded in the hip. Mr. Mitchells wife was taken by ambulance to the hospital because she was showing signs of a heart attack. The police report stated that at least 20 people were on the scene and a number of them were intoxicated. One witness stated about 50 people were on the hay ride. Mr. Mitchell was charged with aggravated battery with firearm. He claimed self-defense. His attorney informed on March 16, 2010, that he pled guilty to reckless discharge of a firearm, to avoid the risks of a trial, and was placed on probation.
Timothy Allen Walker (Illinois). This case involves the seizure and retention of firearms after a charge of making a false police report was filed. The police seized all firearms in the home, including those belong to this wife and son. The case is set for pre-trial conference on April 25, 2011.INDIANA
Lost Creek Township Conservation Club (Indiana). Lawsuits were filed by some neighbors of the club in state court to shut down a shooting range based on a nuisance claim. The trial court ruled in favor of the club. The neighbors appealed. The club won on appeal. Woodsmall v. Lost Creek Township Conservation Club, 933 N.E.2d 899 (Ind. App. 2010).KANSAS
Manual Camacho, Jr. (Kansas). Mr. Camacho operated a shooting range permitted as private gun club in Harvey County. The county issued a special use permit on February 4, 1991, authorizing the operation of private gun club and target shooting range. The permit had no restrictions or conditions limiting the gun club or range to shotguns. On March 3, 2009, Mr. Camacho filed a request for conditional use permit to allow rifle, handguns, black powder guns, and archery to be used on his range. On May 18, 2009, the request was denied. A lawsuit was filed in the District Court of Harvey County on June 15, 2009. The trial court denied relief. The case was appealed to the Kansas Court of Appeals. Camachos brief was filed November 10, 2010. There is no evidence in the record that this sport shooting range in existence on July 1, 2001, when the Kansas range protection law took effect, K.S.A. 583223, was not operating in compliance with generally accepted operation practices at all times material here. The protections of the sport shooting range statute include the specifically enumerated rights of existing ranges to expand or enhance its membership or opportunities for public participation and to reasonably expand or increase facilities or activities as provided by K.S.A. 583223. This would reasonably include rifle and handgun shooting. Unfortunately, during the pendency of the appeal, Mr. Camacho lost the lease, and the property was sold to be used as a religious retreat. The appellees filed a motion to dismiss based on Mr. Camachos lack of standing and mootness on May 13, 2011. A stipulated notice of dismissal was filed on June 7, 2011. The Kansas Court of Appeals granted the motion.KENTUCKY
1Lt. Michael Behenna (Kentucky & Iraq). First Lieutenant Behenna was a platoon leader in Iraq with the 101st Airborne Division. On April 21, 2008, his platoon was hit by an explosion that killed two of his soldiers and seriously wounded two soldiers. He detained a suspected Al Qaeda member. During the interrogation the suspect threw a rock that missed 1st Lt. Behennas head and moved toward him. Fearing for his life, First Lieutenant Behenna fired twice and killed the suspect. In July 2008 he was charged with premeditated murder. The government claimed the suspect was executed and that the path of the bullets into the body did not support self-defense. The government claimed it had no exculpatory evidence. He was convicted of assault and unpremeditated murder. However, it was subsequently revealed that Dr. Herbert MacDonnell, a government witness, concluded that the path of the bullets was consistent with self-defense. However, motions for a new trial based on the exculpatory evidence were denied. First Lieutenant Behenna was initially sentenced on March 20, 2007, to 25 years. The sentence was subsequently reduced to 15 years. The case was appealed to the U.S. Army Court of Criminal Appeals. The main issue was that favorable exculpatory forensic evidence was withheld that collaborated his claim of self-defense. Nonetheless, the court affirmed the conviction on July 21, 2011. An appeal is planned to the U.S. Court of Appeals for the Armed Forces.
Colby Ewing (Maine). The issue was whether he is disqualified under federal law from possessing and acquiring a firearm based on a Maine District Court order of protection. He filed a complaint in the Maine Superior Court of Aroostook County on December 11, 2007, for remedial relief. The court granted defendants motion to dismiss on June 4, 2008. An appeal was filed in the Maine Supreme Court. The court held that appropriate remedy for Mr. Ewing to pursue to challenge his identification in court's computer system as a person prohibited by federal law from possessing a firearm or ammunition, which was collateral consequence of order for protection from abuse entered against him, was either a motion to correct a clerical mistake, or a motion under catch-all provision of rule governing motions for relief from judgment, not a declaratory judgment action. Furthermore, the protection from abuse order has expired. Ewing v. Maine District Court, 964 A.2d 644 (Maine 2009).MARYLAND
Ralph C. Brown (Maryland). This was an appeal from the denial of a permit to carry a pistol. His attorney informed on November 19, 2006, that Mr. Brown had a permit since 1997. He was convicted in 1984 in Washington, D.C., of possessing a prohibited weapon, namely, a pipe. The penalty at that time was not more than 1 year. Therefore, he was not disqualified under federal law or Maryland law from possessing a firearm. The attorney general of Maryland opined in 2006 that the disqualification for firearm possession depends on the penalty as it exists at any time you possess a firearm in Maryland. Furthermore, Maryland would look at the offense in the other state and apply Maryland's equivalent statute and the penalty it carries in Maryland to determine whether the possession of the firearm in Maryland is legal. The recent attorney general of Maryland's opinion makes Mr. Brown ineligible to possess a firearm and thus makes him ineligible to obtain a permit to carry a pistol. An appeal was taken to the Frederick County Circuit Court from the decision of the Maryland Handgun Permit Review Board. Briefs were filed. Oral argument occurred before Judge Theresa Adams on October 24, 2007. On November 27, 2007, the court denied relief. The court applied a highly deferential standard of review to an administrative agency decision. An appeal was taken to the Maryland Court of Special Appeals as an administrative agency appeal. Mr. Brown filed his brief. The Attorney General filed his brief on August 8, 2008. Counsel for Mr. Brown filed the reply brief on October 15, 2008. Oral argument took place on November 6, 2008. The Court of Special Appeals issued its decision on October 28, 2009. It held that the Attorney Generals Opinion on out-of-state convictions was appropriately applied by the Maryland State Police and that out-of-state misdemeanor convictions would act as disqualifying offenses if the Maryland equivalent offense carries a maximum statutory penalty in excess of two years. Counsel for Mr. Brown informed on February 22, 2010, that discretionary review by the Maryland Court of Appeals was denied.
Mark E. Furda (Maryland). Maryland's intermediate court of appeals, Court of Special Appeals of Maryland, held that he was not committed to a mental institution for purposes of the firearms law. Furda v. State, 193 Md.App. 371, 997 A.2d 856 (Md.Ct.Spec.App. 2010). For purposes of statute, he was not involuntarily committed to a mental institution. The initial, ex parte judicial review of a petition for an emergency, involuntary mental health evaluation is not sufficient to constitute a commitment under federal law, so as to bar an admittees right to possess a firearm. He was released without a hearing, and with a finding that there is no evidence of psychosis, confusion, or withdrawal. However, a companion decision from the same court nonetheless upheld a perjury conviction for writing no to the question on a firearm purchase form whether he was committed to a mental institution. Furda v. State, 194 Md.App. 1, 1 A.3d 528 (Md. Ct. Spec. App. 2010). A petition for review was granted by the Maryland Court of Appeals. Oral argument occurred on April 8, 2011. The court affirmed the conviction on August 17, 2011. It held that Court of Special Appeals' decision reversing trial court's order that he was committed to a mental institution did not apply retroactively to time when defendant completed firearm purchase application. Furda v. State, 2011 WL 3586568.
Charles Francis Williams (Maryland). The issue is whether the U.S. Supreme Courts Heller and McDonald decisions only extend to carrying arms in the home as held by the Maryland Court of Appeals in Williams v. State, 10 A.3d 1167 (Md. 2011). A petition for a writ of certiorari was filed in the U.S. Supreme Court on April 5, 2011. Maryland filed its opposition on July 15, 2011. Counsel for Mr. Williams filed his reply on July 26, 2011.MASSACHUSETTS
Frantz Jean-Baptiste v. Edward Davis (Massachusetts). Mr. Jean-Baptistes pistol carrying license denial was overturned by the Boston Municipal Court on November 13, 2007. The denial of the license by the Boston Police Commissioner was labeled arbitrary and capricious and an abuse of discretion. The denial was based on a claim of domestic violence that did not result in a conviction. Mr. Jean-Baptiste worked as an armed guard as contract security for the United States Coast Guard. The licensing authority appealed to the superior court. Its brief was filed August 14, 2008. The Superior Court for the County of Suffolk on July 8, 2009, issued a judgment that upheld the granting of the pistol carrying license. Now Mr. Jean-Baptiste will be able to work as an armed security guard and thus will be able to earn a higher income.
Raymond Holden (Massachusetts). He was charged with domestic violence. The charge was dismissed. His license to carry a pistol was suspended. The Worcester District Court ordered it reinstated on March 13, 2006. The chief then refused to reinstate and instead revoked it. Mr. Holdens second appeal to the district court was also successful. The city appealed to the superior court. The superior court on May 21, 2007, sent the case back to district court for a full hearing. Gemme v. Holden, 2007 WL 1631265 (Mass. Super.). A notice of appeal was filed. Mr. Holdens attorney advised in a November 23, 2007, letter that his brief was filed in the Massachusetts Appeals Court. He argued on appeal that once the district court determined that the police chief abused his discretion, and ordered the license reinstated, and police chief instead revoked the license, and the court again ordered the license reinstated after the police chief was not prepared to present any new grounds or evidence which had not previously been heard, then the rule of claim preclusion applies. Claim preclusion provides that when an issue has been actually litigated and determined by a valid and final judgment, and determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same claim or a different claim. Counsel informed that a hearing took place before the Appeals Court on June 11, 2008. That court held that the matter should go back to the district court for another hearing. On July 1, 2010, the district court allowed the deposition of the police chief. The purpose of the deposition is to establish that the standard for the granting or revocation of a firearm license is over broad and vague. A motion to amend the petition was filed on September 10, 2010. On February 7-8, 2011, an evidentiary hearing took place before the court. Mr. Holden on April 11, 2011, filed in the superior court a Memorandum in Support of the Petitioners Constitutional Claims.
Mirko Chardin (Massachusetts). He was denied a
license to carry a pistol because he is a prohibited person based
on a juvenile adjudication for carrying a pistol without a license
when he was 14 years old. It is a ban for life. He is now 31 years,
has a clean record, and is a college graduate (bachelor and master
degrees and working on a Ph.D.). He is a public school teacher and
ordained minister. The Boston Municipal Court denied relief on
March 31, 2011. An appeal will be filed.
John DiPiero (Massachusetts). His license to carry a firearm and his firearm identification card were summarily suspended because the police chief deemed him to be an improper person. His firearms were taken from him. This unfavorable decision was based on a report that Mr. DiPiero acted in a confrontational manner with a neighbor and family members. The dispute arose over the ownership and tenancy of real property. The dispute over the property resulted in a civil court action. No criminal charges were filed. The complainants stated Mr. DiPiero owned firearms and they were afraid of him. An appeal from the revocation and seizure of firearms was filed in the district court. The court held that Mr. DiPiero failed to prove that the decision of the police chief was arbitrary, capricious, or an abuse of discretion. An appeal was filed in the superior court on March 24, 2011. Now that the Second Amendment is binding on the states, the right to keep and bear arms cannot be reduced to an administrative privilege that can be summarily suspended or revoked at any time based on the flimsiest of evidence.
Trevor Holloway (Michigan). Mr. Holloway was arrested on September 15, 2008, in Wayne County. The issue was whether he violated Michigan law in carrying and transporting the pistol. He was carrying on foot a pistol in a holster that fits partially inside the waist of the trousers and which keeps the entire grip or handle of the pistol visible to ordinary observation. The other issue was whether the pistol was lawfully stored unloaded in a case in the back seat of his truck, which did not have a trunk. He was charged with carrying a pistol concealed in violation of Michigan Compiled Laws section 750.227. The charged offense is a felony. Mr. Holloway has no prior criminal history. His attorney mounted a vigorous defense. The defense and prosecution agreed to a plea bargain to avoid a trial. Mr. Holloway pled guilty on February 6, 2009, to disorderly conduct, a misdemeanor with a maximum sentence of 90 days. He was placed on probation. Counsel informed on July 8, 2009, that he completed his probation and has had no further contact with law enforcement.
Kyle C. Nuyen (Michigan). The issue is selfdefense in the home. The charges stemmed from his defending his 4-year old daughter and himself from what he reasonably believed to be an intruder in his home. The intruder, unbeknownst to Mr. Nuyen, was an employee of a rental company who had come to repossess a washer and dryer. Mr. Nuyen was only four days late on the payment. No shots were fired. He was convicted of felonious assault with a firearm on September 10, 2009. The conviction is on appeal to the Michigan Court of Appeals. The defense filed its brief on August 14, 2010, and the prosecution filed its brief on August 27, 2010.
Joseph Yablonski (Michigan). Counsel informed on April 13, 2010, there is a property line dispute between Mr. Yablonski and a neighbor. There has never been any physical contact. The neighbor got a personal protection order against Mr. Yablonski. He claimed verbal threats. The order was valid for one year. It bars him from possessing a firearm. The neighbor subsequently had the order extended to a term of 10 years. Mr. Yablonski is 71 years old. He will petition the court to modify the order.
Estate of Robert Binkley (Troy Binkley Personal Representative of Estate) (Michigan). This case involves the seizure and retention of firearms found in a safe and in a locked bedroom. A lawsuit was filed under 42 U.S. Code 1983 in the Shiawassee County Circuit Court. Counsel informed on March 3, 2011, that the court granted defendants motion for summary judgment based on governmental immunity. However, partial relief was granted to the plaintiff. The court entered judgment in favor of Troy Binkley only for the firearms found in the gun safe. An appeal was taken to the Michigan Court of Appeals. The brief was filed on June 21, 2011.MINNESOTA
Minnewawa Sportsmans Club (Minnesota). This is a shooting range case. Aitkin County is attempting to unilaterally amend the terms of an existing and valid conditional use permit to include restricted hours and days of operation where no such restrictions or conditions are contained in the original permit issued by the county. The Minnesota Court of Appeals held the clubs limited conditional use permit application for an archery range does open the door for the county to add conditions to the clubs existing permit for use as firearms range. Minnewawa Sportsmans Club v. County of Aitkin, 2008 WL 3144945 (Minn. App.). The current matter being litigated with the county is their claim that there are specific hours and days restricting the use of the range and that the club has violated those restrictions. Counsel informed on November 30, 2010, that the litigation is currently in the discovery phase.MONTANA
Frank Van der hule (Montana). The issue is whether Montana's restoration of rights satisfies the requirements of 18 U.S. Code section 921(a)(20), or is it insufficient based on the holding in Caron v. United States, 118 S.Ct. 2007 (1998), which held a person cannot be convicted under federal law of being a felon in possession of a firearm stemming from a state felony conviction if the state law that removed the disability allows the person to possess all firearms (rifle, shotgun, pistol). On the other hand, a person may be convicted under federal law of being a felon in possession of a firearm stemming from a state felony conviction if state law allows such a person to possess only certain firearms, e.g., rifles and shotguns, but not pistols. In this case, Mr. Van de hule was denied permission to purchase a hunting rifle following a background check. A lawsuit was filed. Plaintiff subsequently filed a motion for summary judgment. The government likewise filed a motion for summary judgment. The court held on September 21, 2007, that Montanas refusal to grant a license to carry a pistol to a person whose civil rights have been restored meant that under Caron he could not possess any firearm under federal law. The question whether Montana law grants a licensing official discretion to grant the carrying license to a person with fully restored rights was certified to the Montana Supreme Court. The Montana Supreme Court held on January 27, 2009, that the restoration of full rights does not wipe away the conviction. Van Der Hule v. Mukasey. Consequently, a person with restored rights may be denied a license to carry a pistol concealed. Van der hule moved to amend his complaint in U.S. District Court to include a Second Amendment claim. The court granted the request on September 29, 2008. The amended complaint seeks declaratory relief that the full restoration of rights by Montana no longer makes him a prohibited person under 18 U.S. Code 922(g)(1), and that the federal background check system should be order to issue a proceed response to a background check. His motion for summary judgment was filed June 15, 2009. The court denied relief on September 15, 2009. It ruled that his inability to obtain a Montana license to carry a concealed firearm means that he falls under the all or nothing prohibition established in the Caron v. United States decision. A notice of appeal was filed to the U.S. Court of Appeals for the 9th Circuit. On June 28, 2010, the U.S. Supreme Court held that the Second Amendment applies to states and local government through the Fourteenth Amendment. McDonald v. Chicago, 130 S.Ct. 3020 (2010). Mr. Van Der Hules principal brief was filed in the U.S. Court of Appeals on August 29, 2011.NEW JERSEY
Association of New Jersey Rifle & Pistol Clubs v. Jersey City (New Jersey). New Jersey requires a permit to purchase in order to receive a pistol from a firearm dealer or private party. Jersey City enacted an ordinance limiting the purchase of a pistol to one per month. The ordinance was successfully challenged in Superior Court on preemption grounds. The order was filed January 2, 2007. Jersey Citys motion for reconsideration was denied on April 13, 2007. Jersey City appealed to the Appellate Division of the Superior Court. The brief of the Association of New Jersey Rifle and Pistol Clubs was filed on October 5, 2007. A supplemental letter brief was filed on July 30, 2008. That brief pointed out that a pistol is a constitutionally protected arm in view of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). On September 29, 2008, in Association of New Jersey Rifle & Pistol Clubs v. City of New Jersey, the N.J. Superior Court Appellate Division held that the local ordinance was preempted by state law. 402 N.J. Super. 650, 955 A.2d 1003 (2008). The city appealed to the New Jersey Supreme Court and on February 4, 2009, the court agreed to review the case. Oral argument occurred on April 27, 2009. The case was subsequently mooted because New Jerseys legislature enacted a one pistol purchase per month law.
Association of New Jersey Rifle & Pistol Clubs v. Christie (New Jersey). On January 17, 2010, a complaint and request for injunctive relief were filed in U.S. District Court challenging the newly enacted one handgun purchase per month law. Among other things, under New Jersey law traditional B-B, pellet, and air pistols are included in the definition of handgun. This is preempted by federal law, 15 U.S. Code 5001. The defendants filed their motion to dismiss on February 24, 2010. The defendants then filed an opposition to the plaintiffs motion for a preliminary injunction on March 1, 2010. On March 23, 2010, the association filed a brief in opposition to the states motion to dismiss. On April 6, 2010, the association filed its reply brief in further support of its motion for a preliminary injunction. A second amended complaint was filed on October 1, 2010. The defendants filed their motion and brief to dismiss the amended complaint on January 20, 2011. The defendants filed their opposition to injunctive relief on January 21, 2011. Plaintiffs filed their brief in support of summary judgment on March 11, 2011. The state filed its opposition on April 5, 2011. The plaintiffs filed their reply to the states opposition on July 5, 2011.
Dennis W. Peterson (New Jersey). Mr. Peterson applied for a New Jersey firearms purchasers identification card. He was denied because in 2000 a domestic violence complaint was made. He was not convicted. However, he voluntarily surrendered his firearms and they were sold. Under a New Jersey statute, any person who has failed to have the firearms returned resulting in a domestic violence seizure and forfeiture action is barred from firearms possession until further order of the court. However, this statute took effect after this 2000 incident. Counsel for Mr. Peterson argued that he should not be barred from obtaining a firearm purchasers identification card. The superior court granted Mr. Petersons appeal by way of a February 27, 2007, order and opinion. The state appealed to the Appellate Division of the New Jersey Superior Court. On February 11, 2008, the court reversed in an unpublished opinion. It held that under the new law he could not get the card because he was a person whose firearm was seized under the domestic violence act and whose firearm has not been returned. In re Peterson, 2008 WL 352324 (N.J. Super. App. Div.). However, the New Jersey Supreme Court summarily reversed the appellate division on January 22, 2009. In re Application of Peterson, 197 N.J. 473, 963 A.2d 842 (2009). The New Jersey Supreme Court cited a recent opinion that held that the sale of firearms seized by state from plaintiff pursuant to consent judgment did not mean that firearms had not been returned to plaintiff such as would permanently bar plaintiff from obtaining a firearms purchasers identification card. Thus, Mr. Peterson is eligible to obtain a firearms purchaser identification card.
Gregg C. Revell & N.J. Rifle and Pistol Clubs, Inc. (New Jersey). He is a resident of Utah with a Utah license to carry a pistol. He was transporting his firearm in compliance with the law when he arrived at the airport and declared the firearm as required by law. This is a case where the arrested man's conduct was clearly not criminal under 18 U.S. Code 926A. Consequently, charges were dismissed. However, his property was not returned and he needlessly spent time in jail. A civil rights action was filed, under 42 U.S. Code 1983, in the United States District Court for the District of New Jersey on January 27, 2006. Counsel informed on September 12, 2008, that Mr. Revells firearm and other property were eventually returned to him. The trial court dismissed Mr. Revells complaint on March 31, 2009, based on qualified immunity and based on a view that the federal law did not protect him because he spent one night in a hotel when he missed his flight. Revell v. Port Authority of New York and New Jersey, 2009 WL 901855 (D.N.J. March 31, 2009). An appeal was filed by Mr. Revell. The trial courts dismissal of the complaint by the Association of New Jersey Rifle & Pistol Clubs, Inc., based on lack of standing and denying motion for leave to amend, was reversed on April 1, 2009, by the U.S. Court of Appeals for the Third Circuit. Revell v. Port Authority of New York and New Jersey, 2009 WL 840549 (U.S. Ct. App. 3d Cir., April 1, 2009). Oral argument occurred on January 26, 2010, in the U.S. Court of Appeals for the Third Circuit. On March 22, 2010, the court agreed that Mr. Revell found himself in a difficult predicament through no fault of his own. However, relief was denied because his conduct did not fit 926A because of the overnight stay in the hotel, and thus there was probable cause to arrest. Revell v. Port Authority, 598 F.3d 128 (3d Cir. 2010). A petition for a writ of certiorari was filed in the U.S. Supreme Court and denied on January 18, 2011: 131 S.Ct. 995 (2011).
John Pernini (New Jersey). This case involved an appeal to the Appellate Division of the New Jersey Superior Court from the forfeiture of firearms and the revocation of a firearm purchaser identification card. He was involved in a domestic dispute. The wife withdrew the domestic violence complaint and it was dismissed by the court. The wife filed for a divorce. Mr. Pernini has no criminal convictions and no history of motor vehicle infractions. Nonetheless, the prosecutor moved for the revocation of his firearm purchaser identification card and the seizure and forfeiture of firearms. The trial court judge initially ruled in favor of Mr. Pernini, but then changed her mind when the prosecutor asked for reconsideration. This occurred on January 23, 2008. An appeal was filed in the Appellate Division of the Superior Court. Mr. Perninis brief was filed on September 11, 2008. Oral argument occurred on February 24, 2009. On April 8, 2009, the court upheld the ruling of the trial court in an unpublished opinion.
Thomas J. Reinhold (New Jersey). Counsel informed on August 14, 2008, that this case involves the Law Enforcement Officers' Safety Act of 2004, 18 U.S. Code sec. 926C. Mr. Reinhold is a retired law enforcement officer from New York City. He moved to New Jersey after his retirement. He was being denied a New Jersey retired law enforcement officer permit to carry a pistol because the New York City police department will not comply with certain New Jersey requirements. An appeal was filed with the Ocean County New Jersey Superior Court. Counsel informed on November 1, 2010, that the appeal was successful. The denial of his application for a New Jersey Permit to Carry a Handgun by a Retired Law Enforcement Officer was reversed and his permit was issued by the New Jersey State Police. The court agreed that it was a misreading of the New Jersey statute to require the New York City Police Department to verify information not within its possession in order for the applicant to be issued his permit.
SARCO, Inc. (New Jersey). Counsel informed on January 14, 2009, SARCO has been in the business of firearm wholesaler and retailer for 47 years. It has 40 employees. Inspections by BATF and the state have been satisfactory in the past. Now the state moved to revoke its license. The problem surfaced when it was discovered a rogue SARCO employee stole firearms from SARCO. The missing firearms resulted in a deficient state inspection. Thereafter, the State Police found and arrested this rogue employee and were able to recover most of the firearms. SARCO was accused of inadequate supervision of employees and inadequate inventory control. SARCO was denied relief in the superior court. The case was appealed to the Superior Court Appellate Division. On April 13, 2011, the court upheld the revocation of the license. The denial of a renewal application has nothing to do with the character or integrity of the applicant or its officers. Any conduct that may present a danger to the public constitutes sufficient grounds for a denial. In re SARCO, 2011 WL 1376286.
Michael Nonio (New Jersey). He was charged with possessing a firearm while under a restraining order and contempt of court. The police searched his home three times and found no firearms. However, they claimed he still possessed firearms based on faulty records of firearm acquisition. Mr. Nonio, despite his incarceration, but at great expense, was able to retrieve sales records for 13 of the 15 firearms in question. The records show that he sold these guns to gun dealers several years ago. This development resulted in his bond being reduced and he was freed on bail. Counsel informed on November 1, 2010, that after vigorously fighting the charges, the state finally dismissed all felony charges. Mr. Nonio pled guilty to a disorderly person offense for failing to surrender his New Jersey firearms purchaser identification card within the required five-day time frame after the issuance of the initial temporary restraining order. This development concludes all proceedings in this case.
Brian D. Aitken (New Jersey). He has been charged with violating state law banning the possession of a large capacity magazine (more than 15 rounds). He has also been charged with unlawful possession of a handgun and hallowpoint ammunition. The property was found in the trunk of his car. The firearms were unloaded. He was moving from Colorado. His defense attorney claims he has defenses to the charges, including a federal law defense (18 U.S. Code 926A). At the jury trial the judge made several adverse rulings on the admissibility of evidence. Mr. Aitken was convicted for possession of hollow point ammunition, possession of a handgun without a permit, and possession of a large capacity magazine. On August 27, 2010, he was sentenced to 7 years in prison, even though he has no prior convictions. The conviction will be appealed. On January 20, 2011, the governor of New Jersey commuted his sentence to time served. Appellants brief was filed in the Appellate Division of the New Jersey Superior Court on March 14, 2011.NEW MEXICO
Borchardt Rifle Corporation (New Mexico). Firearm manufacturers federal firearms license was revoked for willful record keeping violations. The revocation was upheld by the U.S. District Court. The court issued two opinions. Borchardt Rifle Corp. v. Cook, 727 F.Supp.2d 1146 (D. N. Mex. 2010); Borchardt Rifle Corp. v. Cook, 2011WL 1103854 (D. N. Mex. 2011) (motion to alter or amend judgment denied). An appeal was taken to the U.S. Court of Appeals for the Tenth Circuit. Appellants brief was filed on August 10, 2011.
James M. Maloney (New York). He is an attorney. He was arrested in his home for possessing a club, namely, a chuka stick or nunchaku. The club charge was dismissed. He filed a lawsuit challenging the constitutionality of the law on Second Amendment and Fourteenth Amendment grounds. New York does not have a state constitutional guarantee to bear arms. New York law forbids the possession of such a club, even in the home. There is case law that a club is constitutionally protected arm. Barnett v. State, 72 Or. App. 585, 695 P.2d 991 (1985) (struck down prohibition on possession of black jack); State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981) (struck down prohibition on carrying a club); State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980) (struck down prohibition on possession of a club). Mr. Maloney was denied relief. The court held that the Second Amendment does not apply to the states through the Fourteenth Amendment. Maloney v. Cuomo, 554 F.3d 56 (2nd Cir. 2009). There is a split in the circuits in view of Nordyke v. King, 563 F.3d 439 (9th Cir. 2009. In Nordyke the court held the Second Amendment applies to the states and local government through the due process clause of the Fourteenth Amendment. Mr. Maloney asked the U.S. Supreme Court to review his case. The petition for a writ of certiorari was filed in the U.S. Supreme Court on June 26, 2009. The fund filed an amicus curiae brief supporting his effort to have the Supreme Court review his case on July 16, 2009. The law firm of McGuire Woods of Richmond, Virginia, represented the fund pro bono. In the wake of McDonald v. Chicago, 130 S. Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court granted the petition for a writ of certiorari, vacated the judgment, and remanded the case back to the Second Circuit for review in light of McDonald. Maloney v. Rice, 130 S.Ct. 3541 (2010). Westlaw has it listed as Maloney v. Cuomo, and the most recent action by the Second Circuit was to vacate the judgment of the District Court and remand for further proceedings in August 2010. (Maloney v. Cuomo, 390 Fed.Appx. 29, 2010 WL 3199686 (C.A.2)).
John Torraco (New York). He is a law professor who moved from New Jersey to Florida. Congress enacted a safe harbor provision for people who are traveling interstate with firearms: 18 U.S. Code 926A. He declared his unloaded and encased pistol at the airport in New York City while boarding a flight to Florida. The transportation of the pistol was in compliance with 18 U.S. Code 926A. Nevertheless, he was arrested by a detective. He pointed out to the detective the federal law. The detective cursed and said he did not care about federal law because this is New York. The court dismissed charges against him on April 6, 2005. He filed a lawsuit in U. S. District Court for the Eastern District of New York. The defendants, including the Port Authority of New York and New Jersey, filed their answer to his complaint on January 20, 2006. On March 14, 2006, U.S. Magistrate Cheryl L. Pollak issued an order setting a discovery schedule. A motion for summary judgment was granted against Professor Torraco. Torraco v. Port Authority of New York & New Jersey, 539 F.Supp.2d 632 (E.D.N.Y. 2008). The case was appealed to the U.S. Court of Appeals for the Second Circuit, where it was consolidated with Mr. Weasners and Mr. Winstanleys case. Torraco v. Port Authority, 615 F.3d 129 (2d Cir. 2010), held that a violation of the interstate firearm transportation statute, 18 U.S. Code 926A, by state agents is not actionable under 42 U.S. Code 1983. Section 926A serves as an affirmative defense to a charge of violating a state law. Consequently, 926A does not create a federal right and cannot be enforced by filing a 1983 lawsuit. A petition for rehearing and rehearing en banc was filed. It was denied on August 31, 2010.
Matt Weasner (New York). Mr. Weasner, an honorably discharged veteran, was in New Jersey waiting to ship out to Iraq as a civilian contractor. He was arrested at the MacArthur airport on Long Island, New York, while attempting to check a bag with a legal unloaded handgun. He was traveling legally under 18 U.S. Code 926A with a firearm. He was traveling on an emergency ticket back home to Ohio as his grandmother was on her deathbed. Sadly, she passed away the night he was in jail waiting for a bail hearing. His attorney negotiated a pre-trial probation with no admission of guilt that expired on April 28, 2005. After additional struggle with local authorities, his gun was returned to him. Mr. Weasner filed a civil suit for damages incurred because of his arrest. The case is in its early stages. The defendants filed an answer to an amended complaint on April 3, 2006. The scheduling order requires that discovery be concluded by November 3, 2006. The port authority filed a motion for summary judgment. On April 15, 2008, the trial court ruled in favor of the defendants and an appeal was taken to the U.S. Court of Appeals for the 2nd Circuit, where it was consolidated with Mr. Torracos and Mr. Winstanleys case. Torraco v. Port Authority, 615 F.3d 129 (2d Cir. 2010), held that a violation of the interstate firearm transportation statute, 18 U.S. Code 926A, by state agents is not actionable under 42 U.S. Code 1983. Section 926A serves as an affirmative defense to a charge of violating a state law. Consequently, 926A does not create a federal right and cannot be enforced by filing a 1983 lawsuit. A petition for rehearing was filed. It was denied on August 31, 2010.
William Winstanley (New York). He is a 62 year old court reporter and lifelong resident of New York, was booked on an April 4, 2005, Jet Blue flight from JFK to Phoenix. Upon arrival he declared his firearms, for which he had a valid New York permit. The firearms were packed according to FAA guidelines. He was asked by Port Authority officers if he had proper documentation to carry in Arizona. He replied that was not necessary in that state. They denied him boarding. He asked to speak to a supervisor, who agreed he did not need any paperwork for Arizona. By that time the plane had gone. The next day the Port Authority officer inspecting the bag informed Mr. Winstanley he needed a locked hard side case within a locked hard sided case. When Mr. Winstanley told him that was not FAA regulations, the officer informed him he had been doing this 10 years and that is the way it was. Again, he was denied boarding. Mr. Winstanley returned the next day with two hard sided cases. On his third attempt to get on the same flight, was told he needed an FFL to transport handguns across state lines. Again he was denied boarding. He asked for a supervisor, who agreed with him again, but by that time the plane had left. On the fourth day, the officer let him board, after asking him repeatedly if he was traveling with ammo, because Thats a felony, traveling with ammo! Mr. Winstanley, who apparently has the patience of Job himself, did not have ammo and finally made his trip to Phoenix, four days later than scheduled. His case has been consolidated with that of John Torraco and should be filed by January 2006 according to information provided on November 21, 2005. He filed a lawsuit in U. S. District Court for the Eastern District of New York. The court granted defendants motion for summary judgment on March 17, 2008. An appeal was filed, where it was consolidated with Mr. Torracos and Mr. Weasners case. Torraco v. Port Authority, 615 F.3d 129 (2d Cir. 2010), held that a violation of the interstate firearm transportation statute, 18 U.S. Code 926A, by state agents is not actionable under 42 U.S. Code 1983. Section 926A serves as an affirmative defense to a charge of violating a state law. Consequently, 926A does not create a federal right and cannot be enforced by filing a 1983 lawsuit. A petition for rehearing and rehearing en banc was filed. It was denied on August 31, 2010.
New York City v. Beretta et al. (New York). Gun prohibitionists filed a number of frivolous lawsuits to bankrupt the firearm industry, distributors, and dealers in an effort to ban the sale to and purchase of firearms by civilians. This implicates the right to keep arms, as eloquently stated in Andrews v. State, 50 Tenn. 165, 178, 8 Am. Rep. 8, 13 (1871), which held: "The right to keep arms necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair." Congress enacted the Protection of Lawful Commerce in Arms Act in 2005 (PLCAA) to ban such lawsuits. A U.S. District Court in New York City promptly held that this act did not apply to the lawsuit before the court: City of New York v. Beretta, 401 F. Supp.2d 244 (E.D.N.Y. 2005). That decision was appealed to the U.S. Court of Appeals for the 2nd Circuit. The law firm of Goodwin Procter of Boston, New York, and Washington, D.C., agreed to represent the fund pro bono, and prepared and filed an amicus curiae brief on behalf of the fund on May 15, 2006. Gun prohibition organizations also filed amicus curiae briefs. Oral argument occurred on September 21, 2007. On April 30, 2008, the court reversed the judgment of the District Court denying the Firearms Suppliers motion to dismiss based on the claim restricting provisions of the Protection of Lawful Commerce in Arms Act. The judgment of the District Court with respect to the constitutionality of the act was affirmed. The case was remanded to the District Court with instructions to enter judgment dismissing the case as barred by the PLCAA. The case is reported at 524 F.3d 384 (2nd Cir. 2008). New York Citys petition for U.S. Supreme Court review was denied on March 9, 2009.
Charles Barzydlo, Lawrence Oberhofer, Richard DePietro (New York & New Jersey). The three men are active or retired police officers with the Port Authority of New York and New Jersey. The Port Authority seized their personal firearms and refused to return them. Counsel informed in an August 11, 2007, letter that a lawsuit would be filed if the demand for return of property is not honored. After some delay in the proceedings, counsel informed on April 3, 2009, that all firearms were finally returned to all three individuals.
Hunter Sports Shooting Grounds, Inc. (New York). This is an effort to shut down a shooting range based on a noise ordinance. New York General Business Law article 10, section 150 creates an affirmative defense for a shooting range in a lawsuit based on noise. Hunter Sports initiated a lawsuit in January 2007 against Brookhaven Town and County of Suffolk. Counsel informed in a February 3, 2009, letter that the litigation continues. Part of the complaint against the club failed when on October 7, 2008, the Appellate Division of the New York Supreme Court held that dismissal was warranted on account of the statute of limitations. At the trial court level, the court entered an order on February 10, 2009, that Suffolk County, as licensor of the trap and skeet range, be made defendant on any future summons for violations of the noise ordinance.
Gabriel Razzano (New York). Mr. Razzanos pistol license was taken and his rifles and shotguns were seized. This was based on his political speech to a U.S. Congresswoman. He has not been convicted of any criminal offense. This civil rights action was filed in U.S. District Court for the Eastern District of New York. It involves due process and the seizure of firearms and political speech. Counsel informed on July 15, 2008, that the deposition of the police in the pistol licensing unit took place. That unit also took Mr. Razzanos rifles and shotguns. There is no written policy on the seizure of rifles and shotguns. However, there is a policy requiring the owner of the rifles and shotguns to go to court in order to obtain their return. The police agreed that Mr. Razzano is eligible to purchase rifles and shotguns. Several defendants were dismissed by the court in a February 14, 2009, order. However, the 14th Amendment due process claim was allowed to continue against Nassau County and Nassau County Police Department defendants. On February 1, 2010, counsel for defendants requested a pre-motion conference in order to file a motion for summary judgment. On March 17, 2010, the court granted Mr. Razzano permission to move for summary judgment. He filed his motion for summary judgment on April 30, 2010. The court granted Mr. Razzanos motion. It found a violation of due process based on a failure to provide a post seizure hearing. Due process of law requires Nassau County to hold a prompt post-deprivation hearing when rifles and shotguns are seized. Placing the burden of going forward on the person whose property was taken is even more onerous, as it requires that such person give up not only time, but also money to initiate a lawsuit and retain an attorney. The right to bear arms is enshrined in the Second Amendment, and although this right is by no means unlimited, ownership or guns by individuals legally entitled to those guns is a basic right. A prompt due process hearing is likely to limit the unfair curtailment of this right. Razzano v. County of Nassau, 765 F.Supp.2d 176 (E.D.N.Y. 2011).
Bogdan Ostrowski (New York). This case involves the revocation of a pistol permit and rifle and shotgun permit. He was arrested twice as a result of a domestic dispute. He was not convicted. He did not report the arrests to the licensing division because he figured the police knew because the police filed the charges. However, his permit was revoked based on the lack of notification. The revocation was upheld by the trial court. An appeal was filed in the Appellate Division of the New York Supreme Court. The court held that arrests, even if not resulting in a conviction, can be used to revoke a firearm license. Ostrowski v. City of New York, 866 N.Y.S.2d 160 (A.D. 2008). The New York Court of Appeals denied discretionary review on February 11, 2009. Ostrowski v. City of New York, 12 N.Y.3d 701, 904 N.E.2d 503 (2009).
Dennis Magarine (New York). He has a misdemeanor drug conviction. Under New York law he needs a certificate of relief from civil disabilities to obtain a firearm. He was denied relief based on policy rather than based on an individualized review. He appealed the decision to the Appellate Division of the New York Supreme Court. The court held on October 5, 2010, that the denial of a certificate of relief is not an appealable order as of right or by permission. A motion to reconsider was denied on January 11, 2011.
Thomas H. Cameron IV and Lisa Cameron (New York). Mr. Cameron was charged on November 7, 2009, with second degree menacing. He was accused by a man of threatening him with a long gun. The accuser then got an order of protection. The court ordered Mr. Cameron to surrender all his firearms. The court made no finding of a substantial risk that he would use or threaten to use firearms unlawfully. The order also has the affect of disarming his wife, Lisa Cameron, who shares the same home and travels with Mr. Cameron. The order is being reviewed in court and Lisa Cameron has requested to intervene. The motion to intervene was denied on March 31, 2010. The court reasoned that Mrs. Cameron was not bound by the order against her husband. Counsel informed on September 29, 2010, that the order of protection has expired. The order could be renewed.
Town of East Fishkill, Dutchess County, Firearms Seizure and Return Policy (New York). Firearms are not returned once a case is dismissed if an order of protection was involved without a return order from a judge. The judges at the county court, local court, or justice court level refuse to intervene. To address this problem, counsel informed in a letter of June 20, 2010, that an Article 78 proceedings will be filed in the highest level trial court, the New York Supreme Court. On April 4, 2011, the Dutchess County Supreme Court ordered the return of the long guns to the petitioner, Robert P. Cruz.
Alan Kachalsky and Others (New York). This is a
challenge based on Second Amendment and Fourteenth Amendment
grounds to the arbitrary and unconstitutional way in which a pistol
carrying permit is issued in New York. The lawsuit was filed in the
United States District Court for the Southern District of New York.
The fund financially supported the preparation and filing of an
amicus curiae brief by Academics for the Second Amendment. The
brief was filed on February 23, 2011. On September 2, 2011, the
court applied intermediate scrutiny, held that the core purpose of
the Second Amendment is possession and carrying of arms in the
home, and upheld the statute.
Alan J. Chwick (New York). He and others filed a lawsuit challenging a ban on handguns that do not meet certain color requirements. In 2008 Nassau County enacted a local law limiting the colors that may appear on the exterior surface of a handgun. They were denied relief in the trial court. An appeal was filed in the New York Supreme Court, Appellate Division. The court held on December 28, 2010, that the local ordinance violated the state preemption statute on firearms. Chwick v. Mulvey, 915 N.Y.S.2d 578 (A.D. 2010).
Michael Land (North Carolina). This is a private shooting range case. In 1991 Dr. Land purchased property in Union County. Subsequently it was annexed by Wesley Chapel, a small township, in 1999. Seventeen years after Dr. Land established his range, Wesley Chapels zoning administrator order him to halt the ranges use. The five member board of adjustment held 3 to 2 in Dr. Lands favor. However, a super majority is needed to overrule the zoning administrators order. Counsel informed on December 5, 2008, that the North Carolina Sport Shooting Range Protection Act of 1997 preempts these recently enacted ordinances. A petition for discretionary review was filed in the Superior Court of Union County in January 2009. Wesley Chapel agreed to stipulate to the Superior Courts granting certiorari. The Superior Court held a hearing on the land use ordinance. The Superior Court on July 24, 2009, reversed the board of adjustments decision. It held that the 1988 county ordinance that controls this case did not require the obtaining a special use permit to establish his range. Furthermore, the equitable doctrine of laches bars enforcement of this requirement after a 17-year delay. After losing before the Superior Court, Wesley Chapel appealed to the North Carolina Court of Appeals. Oral argument occurred on April 12, 2010. The North Carolina Court of Appeals ruled on August 3, 2010, that Dr. Lands use of the property did not violate the 1988 ordinance and that he did not materially alter the shooting range under the Villages Land Use Ordinance. The case is reported as Land v. The Village of Wesley Chapel, 697 S.E.2d 458 (N.C. App. 2010). The village did not appeal to the North Carolina Supreme Court.
Vann Cranford (North Carolina). His firearms were seized on December 31, 2007, pursuant to a protective order. That order expired on December 18, 2009. There is no legal bar to him possessing a firearm. However, the Greene County Sheriffs Department refused to return the property. He filed in state court a motion for return of his property. The court granted the motion on July 19, 2010, and the property was released to Mr. Cranford.
David Timothy Faircloth (North Carolina). Mr. Faircloth was arrested for expired license plate and for failing to inform a police officer that he was carrying a concealed firearm pursuant to a license to carry concealed. The firearm charge was dismissed. However, his attorney informed on November 19, 2010, that he had to go to court to obtain the release of Mr. Faircloths pistol. This conduct raises the issue of the constitutionality of a policy or practice to not release a firearm until a background check is conducted, even in the face of a court order to return the pistol. A civil rights complaint pursuant to 42 U.S. Code 1983 was filed in the Superior Court of Wake County on May 12, 2011. On June 17, 2011, the defendant, City of Raleigh, filed a notice of removal to U.S. District Court. The case was removed to the U.S. District Court for the Eastern District of North Carolina. The city filed its answer on July 26, 2011, and the other defendants on August 22, 2011.OHIO
Hobart Wayne Keck (Ohio). In 1990 Mr. Keck was convicted of obtaining a controlled substance. As a result of his conviction, Ohio law barred him from possessing a firearm. However, in December of 2008, he was granted relief from the firearm possession disability. Subsequently, he received a license to carry a concealed handgun. It was brought to the sheriffs attention that an FBI background check to purchase a firearm resulted in Mr. Keck being denied the right to purchase a firearm. The federal government feels his rights have not been fully restored under the all or nothing rule of Caron v. United States, 118 S.Ct. 2007 (1998). Therefore, the sheriff revoked Mr. Kecks handgun carrying license. Mr. Keck appealed to the Clermont County Court of Common Pleas. On May 17, 2010 the court held it must conclude that the Sheriff was without the requisite statutory authority to revoke Kecks CHL in this case. Accordingly, the Sheriffs decision to revoke Kecks CHL is REVERSED.OKLAHOMA
Weyerhaeuser Co. Employment Termination Cases (Oklahoma). The cases were filed in U.S. District Court in Oklahoma. The employees and contractor were terminated for possessing firearms in a parking lot. Search and seizure based on state action, lack of notice, and public policy issues are among the issues raised. The state enacted a remedial statute. A U.S. District Court granted a temporary restraining order against its enforcement. It also requested state court to advise whether the remedial statute was civil or criminal. On March 28, 2005, the Oklahoma Court of Criminal Appeals ruled the law prohibiting employers from banning guns in locked vehicles on company property was criminal, rather than civil. On March 28, 2005, the U.S. District Court granted defendant Weyerhaeusers motion for summary judgment and dismissed the lawsuit. An appeal was filed in the U.S. Court of Appeals for the 10th Circuit. NRA filed an amicus curiae brief. The court held on February 13, 2006, that the remedial legislation was prospective in application only and upheld the judgement of the U.S. District Court denying relief: Bastible v. Weyerhaeuser Co., 437 F.3d 999. In a companion case challenging the validity of remedial legislation, on August 3, 2005, the United States District Court for the Northern District of Oklahoma granted the NRA's motion for leave to file an amicus curiae brief in ConocoPhillips Company v. Henry, et al. On May 16, 2007, the court ordered additional briefing on limited issues related to the question of whether the challenged Oklahoma laws are preempted by federal law. ConocoPhillips Company v. Henry, U. S. District Court for the Northern District of Oklahoma on October 4, 2007, granted in part and denied in part the motions for permanent injunction. In summary, the Court concluded: (1) the Amendments do not result in an unconstitutional taking of Plaintiffs private property rights or an unconstitutional deprivation of a fundamental right; (2) Plaintiffs lack standing to assert a facial vagueness challenge; and (3) the Amendments are preempted as in conflict with the OSH Act. The Court enjoined enforcement of the challenged laws against Plaintiffs and all employers subject to the OSH Act. The Court concluded the Amendments conflict with and are preempted by the OSH Act, which requires employers to abate hazards in their workplaces that could lead to death or serious bodily harm and which encourages employers to prevent gun-related workplace injuries. The Amendments criminally prohibit an effective method of reducing gun-related workplace injuries and cannot coexist with federal obligations and objectives. The Amendments are therefore enjoined to the extent they are preempted by the OSH Act. A notice of appeal was filed by the State of Oklahoma on November 2, 2007. The case was appealed to the U.S. Court of Appeals for the 10th Circuit. The NRA filed in the court an amicus curiae brief on January 30, 2008. Oral argument occurred on November 19, 2008. It was reported on January 21, 2009, that the Occupational Safety and Health Administration sent a letter to the court stating the Oklahoma law is not preempted by federal law. On February 18, 2009, the U.S. Court of Appeals in Ramsey Winch, Inc. v. Henry, 555 F.3d 1199 (11th Cir. 2009), reversed the decision of the U.S. District Court. The appellate court held that the Oklahoma law was not preempted by the OSH Act based on conflict preemption, that the Oklahoma law was not an unlawful taking of property, and it did not offend the substantive due process right to exclude people from ones property. The court also held: In addition to the Amendments purpose of increasing safety, one could argue that the Amendments are simply meant to expand (or secure) the Second Amendment right to bear arms. 555 F.3d at 1211.OREGON
Douglas Ridge Rifle Club (Oregon). Counsel informed in a November 30, 2007, letter that this is an effort to shut down a shooting range by using federal environmental laws, parallel Oregon laws, and a state public nuisance claim. The lawsuit was filed in the United States District Court, District of Oregon, by a former member of the club on August 3, 2007. The club filed a motion for summary judgment on August 17, 2009. The plaintiff filed his opposition on August 28, 2009. The clubs motion was denied because genuine issue of material fact existed as to whether creek was a water of the United States covered by the Clean Water Act; adjacent wetlands qualified as waters of the United States covered by the Clean Water Act; and genuine issue of material fact existed as to whether operator disposed of lead within meaning of the Resource Conservation and Recovery Act. Benjamin v. Douglas Ridge Rifle Club, 673 F.Supp.2d 1210 (D. Or. 2009). The club subsequently was successful in getting a court to hold that an insurance company had the duty to defend it against this lawsuit. Douglas Ridge Rifle Club v. St. Paul Fire and Marine Insurance Co., 2010 WL 98942, 2010 U.S. Dist. LEXIS 1415. Counsel for the club informed on March 10, 2011, that the lawsuit has been dismissed with prejudice and a consent agreement has been reached. Mr. Benjamin filed a separate lawsuit against the club stemming from his separation from the club. Mr. Benjamin was not successful in that lawsuit. Benjamin v. Douglas Ridge Rifle Club, 233 Or.App. 509, 226 P.3d 130 (2010).
Gerald Katzenbach (Oregon). This is a self-defense case. Mr. Katzenbach has no prior criminal record. He was on his rural property, with no cell phone coverage, when he encountered a truck load of five intoxicated and aggressive individuals at 11:00 p. m., January 5, 2010. He was seated in his truck when the alleged victim lunged at him. Fearing for his life, Mr. Katzenbach wounded him. At least two of the five are convicted criminals. Mr. Katzenbach was arraigned on second-degree assault and menacing charges on January 6, 2010. He is awaiting trial.PENNSYLVANIA
Joel Atkin (Pennsylvania). The issue is self-defense. Atkin was speeding through a neighborhood. A man blocked Atkins car and punched him in the head. A hospital report shows complaint of closed head injury by Atkin. Atkin fired one shot into his attacker and the man died. Atkin was charged with murder in the first degree. He testified at the trial. On January 15, 2010, a jury deliberated for about 8 hours and found him guilty of the lesser charge of third degree murder. Defense counsel informed that an appeal is planned.
Chad D. Kirby (Pennsylvania). He was been charged in the Franklin County Court of Common Pleas with voluntary manslaughter. An enraged neighbor came onto his property on August 13, 2009, and proceeded to damage his property by throwing things at Mr. Kirbys home, car, and children. Mr. Kirby retreated into his home. When it became quiet, Mr. Kirby exited his home. However, the enraged neighbor came back onto Mr. Kirbys property armed with a baseball bat and ran at Mr. Kirby. Mr. Kirby again retreated into his home. When the neighbor proceeded to smash the front picture window with the baseball bat, Mr. Kirby feared for his life and the life of his children. He fired a single shot from a 12 gauge shotgun through broken window fatally wounding the attacker. The issue was defense of self, family, and home. He was found guilty of manslaughter on October 8, 2010. The conviction will be appealed.
James Cialella (Pennsylvania). There was a verbal dispute. It escalated when Mr. Cialella was knocked down, punched, choked, and kicked by multiple assailants. His injuries included a fractured nasal bone. He fired one shot in self-defense. He is charged with aggravated assault for wounding one of his attackers in the arm. The witnesses against Mr. Cialella are related to the wounded man. One of the witnesses is awaiting trial for aggravated assault and another served a sentence for narcotics distribution. A trial date was tentatively scheduled for October 18, 2010. However, on November 23, 2010, he entered into a plea agreement. On March 2, 2011, he was sentenced to house arrest and probation.
Jerry C. Benard (Pennsylvania). He is
attempting to get his right to possess a firearm restored. He was
sent to a hospital for involuntary observation on April 26th. On
April 29th he was released. No hearing took place because no
application for a formal commitment was filed prior to the
expiration of 120 hours. The issue is whether the mental health
involuntary commitment firearm disability applies to his case. An
appeal was taken to the Washington County Court of Common Pleas.
The court denied relief. An appeal was then taken to the Superior
Court of Pennsylvania. Appellants brief was filed on May 27,
David Ross (Pennsylvania). This case involves forfeiture of a firearm after a finding of not guilty. Mr. Ross is a resident of Homer, Alaska, and was traveling in Pennsylvania. He was at the airport in Pittsburgh when he was arrested and charged with possessing a firearm on airport property in violation of a local ordinance. He was found not guilty on November 11, 2009. However, his firearm was not returned. Consequently, a petition for return of property was filed. It was denied on November 17, 2010. Counsel informed on March 9, 2011, that the case on appeal.
Tina Sherrin and Mark Suchenski (South Carolina). According to counsels letter of September 8, 2010, Ms. Sherrin is a widow and a mother of three children. Ms. Sherrins 19-year old son is a first time offender placed on probation. He moved back into the home of his mother, her fiancé, and his brother. The son signed a required release consenting to the warrantless of his person, vehicle, home, and possessions. During one of the visits by a parole officer, when only the son was at home, a cross bow was confiscated that was found in plain sight in the home. All firearms were in a locked safe and were not accessible in any way. The cross bow belongs to his mother and she keeps the crank for the cross bow on her person. Ms. Sherrin was not able to get her cross bow back. Ms. Sherrin was told she could get the cross back if she consented to the warrantless search of her home. She signed under duress. During a subsequent search of her home by a parole officer, the search extended way beyond her sons room and possessions. Even cereal boxes were cut open and the cat litter box was searched. Parents and guardians are being prohibited from keeping firearms in their homes for personal protection and are unable to have tools needed to legally hunt. The issue is the violation of Second and Fourth Amendment rights of parents and/or guardians of youthful offenders who are on parole and living with a parent or guardian.TENNESSEE
J.C. Greene (Tennessee). This case involves an effort by Hamblen County to shut down a private shooting range. His property is zoned agricultural/forestry. He has lived on or adjacent to this property nearly all his life. A December 29, 2008, letter from the Hamblen County Planning Commission issued a cease and desist order prohibiting Mr. Green from operating a shooting range on his property. Subsequently he received no relief from the county zoning authorities. Therefore, Mr. Greene filed an application for injunctive and declaratory relief in the Chancery Court for Hamblen County on April 3, 2009. The defendant removed the case to federal court, but the federal court sent it back to state court. Counsel for Mr. Greene informed on February 1, 2011, that competing motions for summary judgment were filed by the parties in Chancery Court. The court denied relief on March 3, 2011. However, the order was ambiguous. Therefore, on April 18, 2011, the parties filed an agreed judgment order. The agreed order stated: To clarify and supplement the Memorandum Opinion, the Court does not find or declare that the Plaintiff is prohibited from using his property for any firearm shooting in compliance with all local, state and federal laws, i.e. hunting or target shooting as ordinarily associated with rural residential, agricultural and forest land uses. This resulted in a partial victory.TEXAS
Steven Dean Hines (Texas). Counsel informed on December 5, 2008, that under the repealed Federal Youth Corrections Act Mr. Hines does not have a conviction for a 1975 federal charge. Nonetheless, Texas is denying his application for a license to carry a pistol. Mr. Hines won at the justice of peace level and the state appealed to the county court. On February 3, 2009, the court granted the motion for summary judgment in favor of Mr. Hines and ordered that the Texas Department Public Safety issue a concealed handgun license to Steven Dean Hines immediately. The state on February 27, 2009, filed a notice of appeal to the Texas Court of Civil Appeals. However, later the state chose to dismiss its appeal. Counsel for Mr. Hines informed on March 12, 2010, that the Department of Public Safety issued to Mr. Hines a license to carry a pistol.
Tommy Oakes (Texas). This case involved defense of self and property and prevention of a burglary. Three men were committing a burglary and theft in a residential area on July 30, 2008. They drove in his direction while fleeing. Fearing for his life, Mr. Oakes fired. One of the burglars was wounded, but died several months later from the bullet wound. All three burglars had criminal records, including illegal firearm possession and narcotic offenses. Mr. Oakes had been charged with deadly conduct and negligent homicide. Arraignment took place on February 12, 2009, in Llano County. Defense counsel informed on December 17, 2009, that Mr. Oakes entered a no contest plea to a misdemeanor and was placed on deferred adjudication probation for one year. All other charges were dismissed.
John Thomas Shipley (Texas). This is a BATF case. Mr. Shipley, an FBI agent, is a gun collector. He was charged with engaging in business without an FFL, causing an FFL to maintain false records, and making false statements. He was fired from the FBI. He was tried by a jury. He was convicted on April 14, 2010, and sentenced to 24 months incarceration. An appeal is planned. Counsel informed on July 29, 2011, that Mr. Shipley started his jail sentence, even though one of the trial transcripts was determined to have been permanently lost (the disk on which it was saved by the court reporter was irreparably damaged). Mr. Shipley has an attorney in Texas who is trying to get the U.S. Court of Appeals for the Fifth Circuit to order him released and to order a new trial because of the loss of the transcript.UTAH
Rocky Mountain Enterprises (Utah). This gun shop sold a shotgun with a pistol grip to an 18-year old alien. The purchaser misused the shotgun in a violent crime. The victims and survivors filed in the District Court of Salt Lake County on February 14, 2008, a lawsuit against the gun shop claiming negligence based on a violation of law in selling a handgun (the shotgun) to a person under 21 and failing to obtain a second set of identification from a non-citizen. The lawsuit claims that it was foreseeable that the shotgun would be used in a violent crime. A claim is also made that the sale of the shotgun is a public nuisance. There is evidence that the shotgun, even with a pistol grip, is considered a shotgun under applicable law and not a handgun. A motion to dismiss was denied on March 4, 2009. A February 17, 2010, communication from counsel indicated that pretrial discovery was taking place and soon would be completed. Motions for summary judgment were then filed and are awaiting a ruling from the court. On February 14, 2011, the court heard arguments on the motions. On February 28, 2011, the court ruled that the case may proceed to trial. The Utah Supreme Court declined to reverse that decision on June 18, 2011.VERMONT
Hale Mountain Fish and Game Club, Inc. (Vermont). This is a protracted effort to shut down or impede a shooting range by attacking it with five lawsuits in state and federal court. The claims include nuisance and environmental law. Some claims are facially nonsensical. The lawsuit also claims that the Vermont shooting range protection law is unconstitutional. The Act 250 matter, which is the Vermont land use statute, was heard before the environmental board. The board held that the clubs shooting activities did not violate the environmental statute. The clubs neighbors appealed to the Vermont Supreme Court from the favorable Act 250 finding. The court on September 13, 2007, reversed and remanded. The court required the Environmental Board to make findings on whether the various improvements and changes at the club since the 1970 enactment of the land use statute had resulted in an increased intensity of use and increased noise levels. A separate nuisance case that attacks the constitutionality of the range protection law is pending. A claim that the club is in violation of zoning law is scheduled to be tried during the week of April 7, 2008, before the Vermont Environmental Court. Counsel informed on June 10, 2008, that the court ruled in the clubs favor. The neighbors appealed to the Vermont Supreme Court again. The appeal was not successful. On February 2, 2009, the Vermont Supreme Court noted that the [n]eighbors of the Hale Mountain Fish & Game Club appeal the Environmental Boards decision that the Club need only apply for a limited Act 250 permit for discrete changes made to its property. This is the second time that we have considered neighbors appeal of the Boards decision. In neighbors first appeal, we held that the Boards initial decision regarding whether the Club need apply for an Act 250 permit insufficiently addressed whether, since 1970 when Act 250 became law, changes made to the Club increased the intensity of use of the Club and resulted in greater noise emanating from the Clubs property. In re Hale Mountain Fish and Game Club, Inc., 2007 VT 102, 9-11, 182 Vt. 606, 939 A.2d 498. We also held that the Board needed to address, in greater detail, the impact of the Clubs improvements on nearby streams and wetlands. Id. 11. Therefore, we issued a remand order that required the Board to make additional findings and conclusions on these critical issues. Id. 12. Although it took no new evidence, the Board reviewed prior witness testimony with these issues in mind and filed supplemental findings supporting its original conclusion that a general Act 250 permit was unnecessary. We affirm. In re Hale Mountain Fish and Game Club, 2009 WL 385546 (Vermont Supreme Court Feb. 2, 2009). On April 10, 2010, the club obtained a permit required by the Vermont Environmental Board, which permit was unappealed and final. On July 10, 2010, the club filed a zoning application to make improvements, which was granted. However, the development review board on October 20, 2010, issued a decision denying the zoning permit. The club appealed to the superior court. The clubs motion for summary judgment was filed on February 24, 2011.VIRGINIA
Allan Broughman (Virginia). He is a custom gunsmith in Covington, Virginia. His speciality is customizing rifles. His advertisement guarantees accuracy, namely, groups of one inch or less at 100 yards with his customized rifles. BATF considers this to be firearm manufacturing and thus requiring a manufacturers license. This BATF position was challenged in court because customizing firearms is not the same as manufacturing firearms. Cross motions for summary judgment were filed and argued on June 29, 2009, in the U.S. District Court for the Western District of Virginia. The court issued an adverse opinion and an appeal was filed. The U.S. Court of Appeals for the 4th Circuit held that Manufacturing firearms, within meaning of the Gun Control Act's (GCA's) licensing requirement, entails assembling a firearm's individual components so as to render the firearm suitable for use. The court also held that if individual only repaired firearms, fitted new stocks on rifles, or interchanged choke barrels, he would have fit the GCA's definition of dealer, but not that of a manufacturer. Broughman v. Carver, 624 F.3d 670 (4th Cir. 2010). A petition for a writ of certiorari was denied on June 6, 2011.
Range 82, LLC (Virginia). This is an operating sport shooting range that is defending against efforts by Fauquier County to shut it down. A special permit for the operation of the shooting range was issued in July 2005, subject to 26 conditions. One of the conditions provides for administrative renewal by zoning administrator after five years. Range 82 invested $1.1 Million in site planning, preparation, and the construction of a no blue sky shooting facility containing shooting positions at 25, 50, and 100 yards. A county supervisor requested that the range submit an application for a special exception to become an outdoor technical school in order to allow the Sheriffs Department and other law enforcement agencies to train there. A neighbor filed a complaint. The notice of violation claims the range is already a technical school because it teaches shooting. A zoning administrator issued in May 2009 a notice of zoning violation based on lack of special exception. The range permit will not be renewed if there is an outstanding zoning violation. Thus, having the zoning violation overturned is critical to the survival of the range. The range has appealed to the Circuit Court. The petition was filed on November 20, 2009. A separate declaratory judgment motion was filed on January 19, 2010, claiming certain conditions imposed on the range violate Virginias range protection statute.
Zsolt Csehovics (Virginia). Counsel informed that Mr. Csehovics friend, accompanied by a young woman, came to his property. Later the young woman used Mr. Csehovics .22 caliber pistol to commit suicide. No charges have been filed against him or his friend. A written demand was made by counsel for the return of the pistol. Nonetheless, the sheriffs department refused to honor the demand. A lawsuit was to be filed. Counsel informed on July 29, 2010, that the sheriff finally relented and returned the pistol to Mr. Csehovics.WISCONSIN
Joseph E. Koll Jr. (Wisconsin). The issue was whether he was disqualified from possessing a firearm. He pled no contest to misdemeanor disorderly conduct. It was specifically labeled non-domestic. The states attorney agreed with this resolution in 1998. When Mr. Koll attempted to purchase a firearm, the state changed its mind and now claimed he is disqualified because the offense involved domestic violence. On July 8, 2008, the circuit court ordered the Wisconsin Department to Justice to allow Mr. Koll to purchase a firearm. The state appealed the favorable decision of the circuit court to the Wisconsin Court of Appeals. The Wisconsin Court of Appeals ruled on April 1, 2009, that The question before us is whether Kolls conviction for disorderly conduct prohibits him, under the Gun Control Act, from exercising his Second Amendment right to bear arms. The U.S. Supreme Court has unambiguously spoken, and the facts can lead to but one conclusion. Because Koll had a domestic relationship with the victim of his misdemeanor crime of disorderly conduct, he may not possess a gun. Koll v. Department of Justice of State of Wisconsin, 2009 WL 838585 (Wis.App.). However, that did not end the matter. A letter of February 10, 2010, informed that Mr. Kolls case was subsequently reopened in the trial court and then the case was dismissed. Consequently, he now has no conviction.