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ALASKA

Sturgeon v. Frost, et al.

The applicant's attorney relates the following pertinent facts:

The applicant, Mr. John Sturgeon, has sued the National Park Service in Alaska to prevent it from imposing restrictive federal regulations on lands and waters not owned by the federal government.

The applicant, Mr. John Sturgeon, has used a hovercraft to traverse the Nation River-a navigable river where the State of Alaska owns the submerged lands and waters-as a part of his moose hunts in Alaska since 1990. In 2007, the applicant, Mr. Sturgeon was using a small hovercraft to traverse the waters of the Nation River on a moose hunting trip in the Alaska wilderness. Mr. Sturgeon was on an area of the Nation River surrounded by the federal Yukon-Charley National Preserve. He was stopped by two National Park Service rangers. The rangers notified Mr. Sturgeon that federal regulations prohibited the use of hovercrafts on federal land.

Mr. Sturgeon argues that since the Nation River is navigable, it is state land, and per the Alaska National Interest Land Conservation Act of 1980 ("ANILCA"), it is not subject to federal regulation. According to the applicant's attorney, this was a ...

compromise [which] addressed land owned by the State of Alaska, Alaska Native Corporations, or private individuals, that was about to be surrounded by the new ANILCA parks and preserves. The agreement was that these non-federal lands would not be part of the new ANILCA parks and in no way would be subject to federal regulation .... The Federal Government did not keep its side of the bargain.

This prohibition on NPS regulating non-federal lands within national parks and preserves in Alaska was set forth in ANILCA Section 103(c) which provides:

Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which, before, on, or after December 2, 1980, are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units. If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly.

16 U.S.C. § 3103(c).

While the National Park Service did not initially appear to contest such an interpretation after the passage of the ANILCA in 1980, in 1996, the National Park Service revised its regulations concerning non-federal waters within the boundaries of National Park lands. The revised regulations covered all waters within the boundaries of the National Park system in Alaska, irrespective of other ownership interests. 36 C.F.R. § 1.2 (a) (3). This revision resulted in the federal government's ban on hovercraft use within National Parks being extended to the section of the Nation River in question.

Mr. Sturgeon filed a lawsuit seeking to have the above regulation declared invalid in Alaska, alleging that it violates the ANILCA prohibition on the National Park Service subjecting non-federal lands within Alaska to federal regulation. The case was litigated in the United States District Court for the District of Alaska, where Mr. Sturgeon lost. He appealed to the Ninth Circuit Court of Appeals. The Court of Appeals also ruled against Mr. Sturgeon. Certiorari was granted by the United States Supreme Court in October of 2015, where the case was briefed and argued on January 20, 2016. In June 2016, this matter was remanded to the Ninth Circuit.

On October 25, 2016, oral argument on remand was held before the United States Court of Appeal for the Ninth Circuit. The applicant's attorney argued the case for Mr. Sturgeon. The State of Alaska was also granted argument time as an amicus and briefing before the argument.

On October 2, 2017, the United States Court of Appeal for the Ninth Circuit ruled against the applicant. The applicant is now deciding whether to seek en banc review or to file a petition for certiorari with the United States Supreme Court.

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CALIFORNIA

Bauer v Becerra (formerly, Bauer v. Harris).

This lawsuit seeks to have the current Dealer Record of Sale ("DROS") fee and other ancillary fees declared excessive and unconstitutional. The California Department of Justice uses the DROS fees to bankroll anti-gun programs unrelated to background checks. Because the California Department of Justice charges lawful firearm purchasers the DROS and related fees, and then uses the funds to finance unrelated programs, plaintiffs allege that the DROS fee violates the state constitutional prohibition on charging excessive fees to exercise fundamental rights.

The District Court judge ruled adversely in March 2015, and an appeal to the United States Ninth Circuit Court of Appeals was filed. Briefing concluded on November 2015. Oral argument occurred on April 19, 2017.

The United States Ninth Circuit Court of Appeals issued an opinion on June 1, 2017.

The panel held that the use of the fee to fund enforcement efforts survived intermediate scrutiny because the government has demonstrated an important public safety interest in this statutory scheme, and there was a reasonable fit between the government's interest and the means it has chosen to achieve those ends. Accordingly, the district court did not err in concluding that the use of the fee to fund the California's Armed Prohibited Persons System program, through California Penal Code § 28225, did not violate the Constitution.

On June 15, 2017, the appellant filed a petition for rehearing en banc. The petition for en banc review was denied and the court issued the mandate on July 20, 2017.

Bauer v. Becerra (formerly, Bauer v. Harris). National African American Gun Association. The National African American Gun Association has filed an amicus brief in support of the petitioners in Bauer v. Becerra, pending in the Supreme Court of the United States. See case information above.

Duncan, et al, v. Becerra.

This case was filed in response to both a state bill and Proposition 63 which placed a ban on the possession of standard capacity magazines. The lawsuit challenges California's regulatory scheme against standard capacity magazines on the grounds that it violates the Second Amendment, due process clause, and takings clause of the United States Constitution.

In June, 2017 the judge issued an order staying enforcement of the possession ban while the case is litigated. California recently appealed that decision to the Ninth Circuit. The matter is currently being briefed.

Flanagan, et al, v. Becerra, et al. (formerly Flanagan, et al. v. Harris, et al.).

In the aftermath of the Peruta en banc decision by the Ninth Circuit Court of Appeals, a lawsuit was filed on August 17, 2016 in the United States District Court for the Central District, Western Division, of California. This case seeks to force the court to decide whether or not California's entire regulatory scheme prohibiting both open and concealed carry violates the Second Amendment.

The State and Sheriff both filed motions to dismiss the claims concerning concealed (but not open) carry and the Equal Protection claims. Oppositions to the motions were filed. The court granted the motions to dismiss in light of Peruta. The case will continue but only the Second Amendment open carry claims will be considered by the lower court. Both parties have filed motions for summary judgment, which were argued on November 6, 2017. Depending on the court's ruling on these cross-motions, the next step is either a trial or an appeal to the Ninth Circuit.

Rupp, et al, v. Becerra.

This suit was filed in response to two bills, both of which redefine California's "assault weapon" restrictions to include certain firearms that were previously required to be equipped with "bullet buttons." The lawsuit challenges California's "assault weapon" regulatory scheme as a violation of the Second Amendment, due process clause, and takings clause of the United States Constitution. Defendants filed a motion to dismiss, and plaintiffs filed a motion for preliminary injunction. Both motions were heard on December 15, 2017.

Mark Towns v. Raymond Harrell.

The applicant's attorney informs as follows:

The applicant has had a private shooting range on his property, which is zoned A/R, for many years. The plaintiff recently moved into the adjacent property. The plaintiff intends to open a rehab/detox center on his single family dwelling next to the applicant.

The plaintiff claims that the range is within 150 yards of his dwelling and that the range denies plaintiff full enjoyment of his property. The plaintiff has filed complaints with the sheriff's department. However, the sheriff's department has found no violations on the applicant's property. The Sacramento County Zoning Department has found no zoning violations on the applicant's property.

The plaintiff then filed a private nuisance lawsuit alleging that the applicant is not in compliance with the county zoning ordinances. The complaint seeks compensatory damages, punitive damages, and a permanent injunction prohibiting the applicant from shooting firearms on the applicant's property. The applicant filed a demurrer, which was denied.

The applicant's attorney anticipates that this matter will go to jury trial. The applicant will need to hire an expert witness to testify whether the applicant is in violation of any zoning ordinances. The plaintiff is running out of funds and has offered to settle for $1.00, on the condition that the applicant tear down his berm and range.

The applicant's attorney believes that the state's range protection law is not applicable because the range is not open to the public.

The legal issues presented in this case include the doctrine of coming to the nuisance and the doctrine of exhaustion of administrative remedies.

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DELAWARE

Bridgeville Rifle & Pistol Club v. Small, et al.

Delaware state park and forest regulations prohibit the possession of a firearm within state parks and forests, with the only exception being for hunting. The Delaware state association filed a lawsuit in the Court of Chancery, in November 2015, challenging these regulations on two grounds. The first ground is based on the Delaware Constitution's right to keep and bear arms, which has a broader scope of protection than the federal Second Amendment thanks to a recent Delaware Supreme Court ruling in the NRA supported case of Doe v. Wilmington Housing Authority. The second ground is that the regulations are preempted because the legislature occupied the field of firearms regulation, which overrides the Delaware Departments of Natural Resources' and Agriculture's broad statutory authority to manage state parks and forests.

The Court of Chancery ruled that it did not have jurisdiction to grant plaintiffs' requested declaratory and injunctive relief, and transferred the case to the Delaware Superior Court. Cross motions for judgments on the pleadings were filed in July of 2016. The Superior Court did not ask for oral argument.

On December 23, 2016, the Superior Court ruled in favor of the state, holding that the regulations did not violate the Delaware Constitution, nor were they preempted by state law, and that the department did not exceed the scope of its statutory authority and that the department has an important governmental objective of keeping the public safe from the potential harm of firearms in parks and forests.

The applicants appealed. The case was argued before the Delaware Supreme Court on September 13, 2017. On December 7, 2017, the Delaware Supreme Court held that the Delaware Park and Forest Services' regulations prohibiting firearms in Delaware State Parks and Forests were unconstitutional on their face.

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DISTRICT OF COLUMBIA

Grace v. District of Columbia.

The applicant's attorney relates the following pertinent facts:

The District of Columbia currently requires an applicant for a concealed carry license to show "good reason" for the license before it will be issued. This restriction means that even when an applicant passes a background check and completes all other requirements, issuance of their license may be, and in practice usually is, blocked at the discretion of the Metropolitan Police Department for a failure to demonstrate an "extraordinary need." This requirement has resulted in a de facto ban on concealed carry in the District of Columbia.

Suit was filed in December 2015 challenging the restrictive carry permit system. The NRA filed an amicus brief and was granted argument time on the motion for injunction on February 2, 2016. In Grace v. District of Columbia, the United State District Court for the District of Columbia held that the above "good cause" requirement likely violates the Second Amendment and suspended its enforcement and an injunction was granted. Grace v. District of Columbia, 2016 U.S. Dist. LEXIS 64681 (D.D.C. May 17, 2016).

The District of Columbia appealed to the United States Court of Appeals for the District of Columbia Circuit, which then issued a temporary order reinstating the requirement while the Court of Appeals considers the matter on appeal. This was because another judge in the same district court denied a preliminary injunction to plaintiffs in Wrenn. The United States Court of Appeals for the District of Columbia Circuit stayed the injunction in Grace by a 2-1 panel vote and scheduled the two cases for joint appellate consideration on an expedited basis. Both cases were argued before the Circuit Court of Appeals on September 20, 2016. On July 25, 2017, the United States Court of Appeals for the District of Columbia Circuit ordered the entry of final judgment "with instructions to enter permanent injunctions against the enforcement of the District's good-reason law."

The District of Columbia sought en banc review. On September 28, the full D.C. Circuit declined to rehear the case. The District of Columbia did not petition the Supreme Court to review the case. Accordingly, the mandate issued on October 6, and on October 17, and Judge Leon entered an order permanently enjoining D.C.'s law. The applicants are currently negotiating with the District of Columbia over reimbursement of their attorneys' fees.

Grace v. District of Columbia. Law Enforcement Amicus Brief.

Several law enforcement groups filed an amicus brief in support of the plaintiffs. See case information above.

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FLORIDA

Dale Lee Norman v. State of Florida.

The applicant's attorney relates the following pertinent facts:

The applicant, Mr. Dale Lee Norman, is a law-abiding citizen who had a concealed carry permit. On the day of the arrest, the applicant left his home with his firearm on his person. However, his shirt got caught on the butt of his gun and the firearm was exposed. The applicant did not realize that his firearm was in plain view. He attracted the attention of other civilians who called the police. The applicant was charged with and convicted of violating Florida's open carry ban.

On March 2, 2017, the Florida Supreme Court held that the Second Amendment does not guarantee a right to carry a firearm openly in public and upheld the applicant's conviction for openly carrying a firearm on his person. Norman v. State of Florida, 2017 WL 823613 (Fla. 2017). After applying intermediate scrutiny, the majority upheld the open carry ban, in part, because the alternative of concealed carry was available.

The applicant's attorney filed a petition for a writ of certiorari the United States Supreme Court. He argues that Heller addressed the issue of open carrying and that such a ban violates the Second Amendment. "Heller explicitly endorsed the original public understanding that 'a ban on carrying pistols openly' violates the Second Amendment."

Although the State of Florida waived the right to file a response to the petition for a writ of certiorari, on August 11, 2017, the United States Supreme Court ordered that the State file a response. On October 11, 2017, the State of Florida filed its brief in opposition. On October 24, 2017, the applicant filed his reply brief. On November 27, 2017, the United States Supreme Court denied cert. This matter may now be considered closed.

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IDAHO

Nesbitt, et al. v. U.S. Army Corps of Engineers (formerly Elizabeth Morris, Alan Baker v. U.S. Army Corps of Engineers.

The applicant's attorney relates the following pertinent facts:

The U.S. Army Corps of Engineers administers 12 million acres of public, recreational freshwater lakes and rivers. These bodies of water account for thirty three percent of all U.S. freshwater fishing. Regulations adopted by the Corps in 1973 prohibit "the possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons." 36 C.F.R. § 327.13.

The Mountain State Legal Foundation, a nonprofit, public-interest law firm, has filed suit challenging the firearms restriction on behalf of Ms. Elizabeth E. Nesbitt and Mr. Alan C. Baker.

Ms. Nesbitt was issued an emergency concealed carry license by her local sheriff due to threats and physical attacks against her by a former neighbor. Ms. Nesbitt regularly uses Corps-administered public lands in Idaho, and would like to be able to carry her concealed firearm on these lands, as she does elsewhere, for protection.

Mr. Baker is an NRA certified instructor and lifelong outdoorsman. He is licensed to carry a concealed handgun in Utah, Idaho, Arizona and Oregon. Mr. Baker regularly uses Corps-administered lands for recreation and would like to carry his concealed firearm for protection while doing so.

The constitutional issue presented was "whether the Second Amendment protects individuals' rights to carry firearms for self-defense and to possess functional firearms in their temporary residences on federal lands. ... If MSLF prevails, the Corps will be barred from prohibiting visitors from possessing functional firearms when camping or recreating at its sites nationwide."

On October 13, 2014, the United States District Court granted summary judgment in favor of the plaintiffs and denied the government's motion for summary judgment. The district court held that 36 C.F.R. § 327.13 violates the Second Amendment and is unconstitutional and also enjoined the defendants from enforcing the unconstitutional regulation on Corps-managed property within Idaho.

On December 10, 2014, the federal government filed an appeal with the U.S. Court of Appeals for the Ninth Circuit. Briefs were filed between April 17, 2015 and August 12, 2015. Oral argument was scheduled for February 2017 and was subsequently rescheduled for March 6, 2017.

In early March 2017, on the eve of oral arguments before the Ninth Circuit, the government filed an emergency motion to place the appeal in mediation. On March 3, 2017, the motion was granted. The matter remains in mediation.

Nicholas Lion.

The applicant's attorney relates the following pertinent facts:

This matter involves the denial by the Bureau of Alcohol, Tabaco, Firearms and Explosives ("BATFE") of a proposed transfer of a silencer.

The applicant, Mr. Nicholas Lion, who resides near Sandpoint, Idaho, sought to purchase a firearm silencer from a licensed dealer. The Form 4 was submitted to the BATFE in November of 2014. In late March of 2016, the application to transfer the silencer was denied. The denial was based on one count of Disorderly Conduct under N.J. Stat. Ann. § 2C:33-2, which, according to the BATFE made the applicant a prohibited person under 18 U.S.C. § 922(g) (1).

The only matters on Mr. Lion's criminal record are this disorderly conduct charge and a simple assault charge under N.J. Stat. Ann. § 2C:12-1.a.(1). No disposition is shown for either charge on the local records. Both of these charges stemmed from a single incident in July of 1987.

Under New Jersey law, the disorderly conduct charge is a petty disorderly person offense, which carries a maximum penalty of 30 days in jail and/or a fine of up to $500. The simple assault charge is a disorderly person offense, which carries a maximum penalty of six months in jail and/or a fine of up to $1,000.00. Neither is considered "crime" under New Jersey law and even a conviction on these charges would not make one a prohibited person under § 922(g) (1).

BATFE informed the applicant that the transfer would be denied if no disposition of these charges could be found. However, even a conviction would not disqualify him. BATFE also informed that the applicant would have to prove that that charges were not misdemeanor crimes of domestic violence under § 922(g) (9). This reverses the burden of proof. "If ATF has adopted a practice of reversing the burden of proof on minor assaults, and requiring the applicant to show that all such convictions are not domestic violence cases, the effect will be severe and unjustified under the law."

Mr. Lion has filed a pro-se lawsuit against the BATFE in federal district court in Idaho. "As presently filed, it would certainly be dismissed." On the advice of counsel, on June 9, 2016, Mr. Lion voluntarily dismissed, without prejudice, the pro se lawsuit he had filed in federal district court.

The applicant's attorney is trying to resolve the matter through the BATFE and NICS. The applicant's attorney drafted a declaration by Mr. Lion, which had been requested by the BATFE, and prepared an extensive package of documents in support of the declaration. These materials were sent to the BATFE on July 14, 2017.

Absent a resolution, the applicant bring a lawsuit against the BATFE to prevent the agency from reversing the burden of proof. The applicant's attorney expects that it may take some time to determine whether the matter can be resolved, or whether we will need to file suit against BATFE.

Lately, the applicant's attorney has been in touch with Bill Ryan, the attorney for NFA Branch. Mr. Ryan stated that he would be discussing this matter with the NFA Branch Chief to arrive at a final decision. The applicant's attorney expects to hear from him shortly.

Shaw Shooting, Inc.

The applicant's attorney informs as follows:

In 2014, the applicant, Shaw Shooting, Inc., obtained a special use permit from Gooding County, Idaho to operate a private shooting range. Due to an increased use of the range, in 2016, the Gooding County Planning & Zoning Administrator subsequently advised the applicant that the applicant needed to apply for another conditional use permit to expand operations of the range. The new conditional use permit was approved by the Gooding County Planning & Zoning Commission.

"Citizens for Hagerman" (a group of individuals forming an unincorporated association) and the City of Hagerman appealed the decision to the Gooding County Board of Commissioners. However, the applicant's attorney successfully argued that expanding range operations does not establish a "substantial change in use" under Idaho Code §55-2604(5)(a), and that, therefore, the Board of Commissioners lacked jurisdiction to require a second special use permit for the range expansion.

In April of 2017, Citizens for Hagerman filed a lawsuit, alleging nuisance and trespass, against the applicant, and applied for an emergency temporary injunction to cease range operations. The applicant responded by filing a motion to dismiss based upon the following arguments:

1. The nuisance claim fails because the shooting range was operating legally under statutory authority.

2. The plaintiff was not a proper party and lacked standing because it was not a "private person."

3. The trespass claim fails because the alleged trespass was speculative.

The district court granted the motion to dismiss the trespass claim but denied the motion to dismiss the nuisance claim. The motion to dismiss Citizens for Hagerman for lack of standing was denied as to its claims for injunctive relief, but was granted as to claims for personal injury or property damage. Because no individual members of Citizens for Hagerman joined the complaint seeking damages, the court dismissed the individual claims with prejudice. SSI filed a motion for reconsideration, which was denied.

The applicant's attorney filed a motion for summary judgement on August 29, 2017. The hearing occurred on October 24, 2017. The applicant's summary judgement motion was granted. However, the plaintiff has filed a motion for reconsideration which was argued on February 13, 2018.

State of Idaho v. Nicholas Brian Sunseri.

The applicant's attorney informs as follows:

On April 15, 2016, the applicant, Mr. Nicholas Brian Sunseri-who has no prior criminal history-was arrested and charged with domestic battery or assault in the presence of a child, and interfering with a 911 phone call. He was held in Kootenai County jail without bond over the weekend.

After spending the weekend incarcerated, he appeared, without the assistance of legal counsel, by video in front of an Idaho magistrate judge. The magistrate advised all defendants in the court room of their right to remain silent, their right to counsel, the appointment of counsel at public expense if the defendant could not afford an attorney, and the right to trial by jury.

When it was time for the applicant's case to be heard, the magistrate asked if the applicant recalled the aforementioned defendants' rights that the judge mentioned. The applicant indicated that he did. The magistrate then informed the applicant of the potential maximum punishment for conviction of domestic violence in front of a child; up to one (1) year in jail and a $1,000 fine. The magistrate conveyed the prosecuting attorney's plea offer; namely, the applicant's immediate release from jail - three (3) days already served - a $300.00 fine, and 2 years of unsupervised probation and the dismissal of charge for interfering with a 911 phone call.

The audio recording reflects that the applicant wanted to get out of jail as soon as possible, instead of continuing to be held without bond until the date of a future hearing, because the applicant needed get back to work, so as not to lose his job.

The applicant entered a guilty plea to a misdemeanor crime of domestic violence in Idaho. No one informed the applicant that by accepting this plea deal, he would permanently be deprived of his Second Amendment rights. When the applicant was informed of the consequences of his domestic violence conviction, after obtaining counsel, he moved to withdraw the guilty plea, showing "just cause" by claiming that he was unaware of the impending loss of rights when entering that guilty plea. The motion was denied by the magistrate's court based upon Idaho law, which states that a magistrate judge need not advise a defendant of "collateral consequences."

The applicant appealed the magistrate's decision to the district court. The district judge affirmed the magistrate's decision but urged the applicant to appeal and to challenge the existing law. The district court judge stated the following:

This Court is not aware of any other misdemeanor offense that would result in the lifetime loss of a fundamental right. … This court cannot conceive that the loss of a substantial right predicated upon a misdemeanor conviction should require anything less [than advisement of the loss prior to the plea]; particularly when a defendant is appearing via video from jail and is not represented by counsel. …

It strains credulity to believe that a right described by former Justice Joseph Story as the 'palladium of the liberties of a republic' may be relinquished for life without informing a defendant that such a consequence exists. Yet it is so. …

The loss of the right to possess firearm is a collateral consequence regardless of the legal fiction that characterizes it as such. Though it seems it should require, at a minimum, notice prior to the entry of a guilty plea. Particularly when a defendant is incarcerated and presented with a Hobson's choice to plead not guilty and potentially remain in jail and lose employment, or accept the plea offer and be released. Therefore, inasmuch as the Court would like to find that fairness and justice require that a defendant be informed of the loss of a fundamental right prior to entering a guilty plea for a misdemeanor charge of domestic violence, that is not currently the state of the law.

In regard to other criminal offenses, "collateral consequences" are disclosed prior to a defendant entering pleas; including, for instance, the consequences sex offender registry, and non-citizens convicted of deportable crimes, etc.

Yet if a misdemeanor defendant, like Mr. Sunseri, engages in a scuffle with his ex-wife, is implicated upon false accusations, has legitimate defenses to the charges, but chooses to take the state's deal rather than lose his job, he has fewer rights than the sex offender or non-citizen to know in advance that a domestic violence conviction will result in a lifetime ban on his fundamental right to own and possess firearms and ammunition.

The applicant's attorney plans to appeal first to the Idaho Court of Appeals, and if necessary to the Idaho Supreme Court, and the United States Supreme Court. "Mr. Sunseri challenges this loss of his Second Amendment rights because he did not receive notice of this consequence at the time he entered his plea and would not have pleaded guilty had he been properly advised."

The applicant's attorney frames the issues presented as follows:

Whether Mr. Sunseri should have been advised of the immediate deprivation of his right to own and possess firearms and ammunition upon conviction by Idaho courts prior to accepting his guilty plea to a misdemeanor crime of domestic violence.

Even if the Courts were not required to advise the defendant of this consequence to his fundamental rights, whether Mr. Sunseri should be permitted to withdraw his plea where he demonstrates he had meritorious defenses to the charges and would not have pleaded guilty had he known of this substantial deprivation of his Second Amendment rights.

The applicant filed his appellate brief on November 14, 2017. The State of Idaho Attorney General's Office filed their brief on December 12, 2017.

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ILLINOIS

People v. Shawna Johnson.

The applicant's attorney relates the following pertinent facts:

The Illinois State Police revoked Shawna Johnson's Firearms Owner's Identification ("FOID") card after learning of a 2001 misdemeanor battery conviction involving her ex-husband. Ms. Johnson had plead guilty to that charge after the prosecutor assured her that the conviction would not permanently prevent her from holding a FOID.

After the revocation, Ms. Johnson commenced a pro se action against the Illinois State Police and obtained a ruling that substantively indicated that she could obtain relief notwithstanding the federal prohibition, based on the rationale in Coram v. State, 996 N.E. 1057 (Ill. 2013). The issue is whether a circuit court can remove federal firearms disabilities for individuals who have been convicted of a misdemeanor domestic violence charge.

The Illinois State Police contends, citing 430 Ill. Comp. Stat. 65/10(b), that circuit courts cannot grant relief because Illinois statutory law prohibits restoration of rights to those prohibited from possessing firearms pursuant to federal law. Ms. Johnson argues that federal law enables the removal of a federal firearms disability if one's "civil rights" have been restored. Ms. Johnson also contends that 18 U.S.C. § 922(g) (9) as applied to her is unconstitutional under the Second Amendment.

An evidentiary hearing was held in this matter on January 20, 2016. Subsequently, the court directed each side to submit two post-hearing briefs each, by May 13, 2016. In response to a request for an update, the applicant's attorney advises that, despite repeated requests that the court issue a ruling, as of November 17, 2017, the applicant still awaits a decision form the trial court.

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INDIANA

Jefferson County, Indiana v. Joseph Chapo, Sherry Chapo, and Big Deputy Big Shot LLC.

The applicant's attorney informs as follows:

The applicants, Joseph and Sherry Chapo, owners of Deputy Big Shot LLC, operate the only public shooting range in Jefferson County on their property.

In August 2012, applicants requested information from the Jefferson County Plan Commission ("JCPC") regarding shooting ranges and gun shops in the Agricultural Zone. They were informed by the Secretary of the Board of Zoning Appeals ("BZA") and the JCPC that a permit was required for each use. The applicants filed the required applications. On October 2, 2012, the BZA approved the gun shop application and deferred the range application. On November 11, 2012, the BZA denied the range conditional use application.

The applicants created Deputy Big Shot LLC. By January 2013, Deputy Big Shot LLC had applied for and received a federal firearms license and had registered with Indiana to sell handguns.

On January 31, 2013, Jesse and Tamara Duquette, neighbors to Deputy Big Shot LLC, filed a complaint with the Jefferson County Zoning Officer against Deputy Big Shot LLC and the Chapos. On April 6, 2013, the Zoning Enforcement Officer served the applicants with an enforcement order to discontinue the illegal use of the land, building, and structures. The applicants responded in writing to the allegations. A public hearing regarding these alleged zoning violations was held on April 20, 2016. On April 27, 2016, the Zoning Enforcement Officer issued an amended enforcement order.

On May 25, 2016, the JCPC filed a complaint and injunction against the applicants. On November 17, 2016, a preliminary injunction was issued enjoining Joseph and Sherry Chapo from operating the range. On January 4, 2017, a preliminary injunction was issued enjoining Joseph and Sherry Chapo and Deputy Big Shot, LLC from operating the range. The applicants appealed the granting of the preliminary injunctions to the Indiana Court of Appeals. On June 15, 2017, the applicants filed their appellate brief. On August 14, 2017, JCPC filed their appellate brief and a motion to strike. On October 2, 2017, the applicants filed their reply brief.

In the meantime, litigation continued in the trial court. The applicants filed a 12(b)(6) motion to dismiss on February 1, 2017 based on the following grounds:

The Amended Complaint fails to state a claim upon which the Court can grant relief for the following reasons:

1. JCPC fails to establish an ordinance or provision of an ordinance was violated;

2. The attempt to enjoin the defendants from operating a shooting range is in violation of the 2nd Amendment right to bear arms and Article I, Section 32;

3. The attempt to enjoin the Defendants from operating a shooting range is prohibited by the Jefferson County Home Rule; and

4. The attempt to regulate the Defendants from operating a shooting range is in violation of the Indiana Range Protection Act IC 14-22-31.5[.]

On July 14, 2017, the JCPC filed a citation for contempt and a motion to enforce.

On September 7, 2017, the trial court heard the applicants' motion to dismiss and the JCPC's motion for contempt. On October 17, 2017, the trial court denied the applicants' motion to dismiss and granted the JCPC's motion for contempt.

On October 26, 2017, the JCPC filed a motion for a permanent injunction.

On October 30, 2017, the trial court stayed the proceedings in the trial court pending the appeal. The applicant's attorney informs, however, that this did not affect the preliminary injunctions nor the finding of contempt.

On November 17, 2017, the applicants filed, with the Indiana Court of Appeals, an emergency motion to stay the proceedings in the trial court pending the appeal.

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MARYLAND

Cresap Rifle Club, Inc. v. City of Frederick.

The applicant's attorney informs as follows:

The applicant, is a not-for-profit handgun and rifle shooting range located in Frederick, Maryland. The City of Frederick ("City") currently owns the property where the range is located, and leases said property to the range since 1994.

On May 4, 2017, the City issued a notice of default letter to the range, alleging that "bullet fragments and other debris directly attributable to the use of the Leased Property are not being contained on the Leased Property". The City later claimed that the applicant has "[in]sufficient provisions to adequately account for or abate the lead bullets that are being utilized on the leased property." The City alleges that these issues put the applicant in breach of the lease agreement. The City also has alleged that automatic weapons are being used at the range by a sublessee; a police department. However, a 2010 lease amendment specifically allows automatic weapons may use on the range by police departments.

In response, the applicant voluntarily closed its range. The applicant contacted the NRA's Range Technical Team. The NRA's Range Technical Team's report contradicts the claims made by the City.

The applicant believes that the City of Frederick Police Department, which has a range located directly next to the applicant, wishes to evict the applicant in order to expand their own range.

The applicant is willing to negotiate a deal with the Police Department, allowing them access to the applicant's range. The applicant's attorney has unsuccessfully attempted to resolve this matter with the City.

On June 29, 2017, the applicant's attorney filed a declaratory judgement action in the Frederick County Circuit Court alleging that the City has breached the lease agreement. The applicant's attorney has also served discovery demands, including interrogatories and a notices of deposition. The defendants' responses were due on August 18, 2017, but the responses were not satisfactory. On or about December 1, 2017, the applicant's motion to compel discovery was granted without a hearing and attorney's fees were awarded.

The City has filed a counterclaim which was untimely and unclear. The applicant filed a motion to strike as untimely. The applicant still awaits the court's ruling on that matter.

The applicant plans to file a motion for a more definite statement and then a motion to dismiss/motion for summary judgment on the counterclaim.

In the meantime, the range is still working on range improvements.

Kolbe, et al. v. Hogan (Kolbe, et al. v. O'Malley).

This lawsuit is a challenge to Maryland's ban on popular semi-automatic rifles and magazines with capacities in excess of ten rounds enacted by the "Maryland Firearm Safety Act of 2013." The plaintiffs, a collection of Maryland individual citizens, firearms dealerships, and advocacy groups, including the Maryland State Rifle and Pistol Association, created a strong record of fact and expert evidence demonstrating the challenged bans could not pass constitutional muster under any level of heightened scrutiny.

The District Court for the District of Maryland, in defiance of the United States Supreme Court's Heller and McDonald decisions, as well as Fourth Circuit precedents, disagreed and followed the holding established by the Circuit Court of Appeals for the District of Columbia in Heller II (upholding DC's ban on so-called "assault weapons" and "high capacity magazines"), applying nominal intermediate scrutiny and holding that the state's interest in public safety outweighed any individual Second Amendment interests impaired by the Act.

The case was appealed to the Fourth Circuit. Oral argument was held on March 25, 2015, before the Fourth Circuit Court of Appeals, where Chief Judge Traxler (South Carolina), Judge Agee (Virginia), and Judge King (West Virginia) were empaneled to hear the case. This panel's composition was significant because some combination of these three judges are responsible for all of the Fourth Circuit's post-Heller Second Amendment jurisprudence, which provides that restrictions affecting the exercise of Second Amendment rights by responsible, law-abiding citizens in their homes must be analyzed using strict scrutiny.

On February 4, 2016 the Court in a two to one ruling vacated and remanded the case back to the trial court. The court held that semiautomatic rifles and large capacity magazines are bearable arms protected by the Second Amendment, and a complete ban on them must be subjected to strict scrutiny. The court remanded the case with instructions to re-hear the case using strict scrutiny standard.

On February 18, 2016, the State filed a motion for en banc review simultaneously with a number of anti-gun amici. The Court accepted the motion before amici in support of the plaintiffs' opposition could be filed. Various amici on both sides have been filed including one on behalf of NRA. On April 11, 2016 both Plaintiffs and the State filed their supplemental briefs. Oral arguments, before the full Fourth Circuit, were heard on May 11, 2016.

The en banc court issued its opinion on February 21, 2017, affirming the District Court in all respects.

The majority adopted a novel test for determining whether a firearm is protected by the Second Amendment. It interpreted part of an aside in one sentence in Heller to mean that "weapons that are most useful in military service … like the M-16" are outside the protection of the Second Amendment. It then concluded, improperly ignoring all of Plaintiffs' evidence to the contrary, that the banned firearms and magazines were "clearly most useful in military service." The majority opinion also reasoned that even if the banned firearms and magazines were protected by the Second Amendment, intermediate scrutiny would be the highest level of review it would apply because other firearms (including handguns) remain available for citizens to use in self-defense. In so doing, the Court disavowed its prior statements in Woollard, Chester, Masciandaro, and Hosford that strict scrutiny must apply to laws burdening the exercise of Second Amendment rights in the home by law-abiding, responsible citizens.

The dissent tracked the panel opinion he authored and criticized the majority at length for the impropriety of its opinion. The dissent would have applied the "typically possessed by law-abiding citizens for lawful purposes" test announced in Heller and applied by every court other than the Seventh Circuit in black-gun cases. The dissent noted that there is no dispute that the banned firearms and magazines meet this test, as has been found or assumed by every court to have considered similar bans. The dissent criticized the majority for rejecting the proper test because they did not like the outcome. The dissent also aptly pointed out that "basic fairness requires that the plaintiffs have an opportunity to squarely meet" the new test adopted by the majority and that the majority had abandoned the summary judgment standard of viewing the evidence in the light most favorable to the non-movant. The dissent argued that the new test adopted by the majority was inconsistent with Heller and Caetano and "[u]nder this approach, it is irrelevant that a firearm may have been commonly possessed and widely accepted as a legitimate firearm for law-abiding citizens for hundreds of years; such a weapon could be removed from the scope of the Second Amendment so long as a court says it is 'like' an M-16 or, even easier, just calls it a 'weapon of war.'" The dissent also explained that the evidence in the record demonstrates that the banned firearms and magazines do not meet the new test set forth by the majority.

Counsel filed a petition for a writ of certiorari to the United States Supreme Court on July 21, 2017, and collected strong amicus briefs from a myriad of supporters which were filed on August 25, 2017, the same day as Maryland's response to the petition.

On November 27, 2017, the United States Supreme Court denied the petition. This matter may now be considered closed.

Kolbe, et al. v. Hogan (Kolbe, et al. v. O'Malley) - amicus brief.

Several Second Amendment advocacy groups, including Pink Pistols, The Congress of Racial Equality, Women Against Gun Control and the Disabled Sportsmen of North America filed an amicus brief supporting certiorari in the United States Supreme Court, in the case of Kolbe v. Hogan.

The applicant's attorney relates the following pertinent facts:

The issue presented by Kolbe's appeal from an adverse decision by the Fourth Circuit (sitting en banc) is whether the Second Amendment, as construed by the Supreme Court in DC v. Heller, allows Maryland to impose an outright ban on the best-selling semiautomatic rifles and magazines sold in America (the semiautomatic AR-15 and its clones), even though those firearms undeniably are, in conformity with the Court's test in Heller, "typically possessed by law-abiding citizens for lawful purposes," including self-defense in the home.

Insofar as the Kolbe case is pending in the Supreme Court of the United States, a successful appeal would achieve a nationwide victory on this issue, which has been litigated in many lower federal courts and is of central importance to the right to bear arms. The amici groups listed above have a unique perspective on this issue because they consist of citizens typically marginalized in America society and disproportionately subjected to criminal violence based on their race, gender, or disability status. These groups put a very human face on the Second Amendment right to self-defense and demonstrate that this right is by no means the exclusive province of hunters, sports-shooters and firearms collectors.

On November 27, 2017, the United States Supreme Court denied the petition. This matter may now be considered closed.

Maryland Shall Issue, Inc., et al. v. Hogan, et al.

This case challenges the Maryland handgun qualification license. Maryland currently requires all handgun purchasers to obtain a handgun qualification license, which requires a formal class with live fire, fingerprinting, a background check, and payment of numerous fees, in addition to the background check and fees associated with any subsequent handgun purchase.

The State filed a motion to dismiss. Following a hearing on the motion on August 7, 2017, the judge found plaintiffs had stated plausible claims for relief under the Second and Fourteenth Amendments. The State's motion to dismiss was denied. The parties are now proceeding with discovery. Pursuant to the Court's scheduling order, fact discovery will close March 30, 2018, expert discovery will close May 22, 2018, and summary judgment motions will be filed July 13, 2018.

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MASSACHUSETTS

Commonwealth vs Israel Lopez. Hampden County Superior Court, Massachusetts.

The applicant's attorney informs as follows:

On September 3, 2016, a group of people tried to force their way into his home, including one armed with a baseball bat. The applicant, fearing for his and his family's lives, shot at the intruders, wounding two of them.

The applicant was initially charged with two counts of assault and battery with a dangerous weapon and one count of discharging a firearm within 500 feet of a building. These charges were dismissed in the Springfield District Court. The only charge the applicant was indicted on was the misdemeanor improper storage of a firearm charge.

The final charges were dismissed after a hearing. This matter may now be considered closed.

Pullman Arms, Inc., et al. v. Healy.

On July 20, 2016 in an editorial in the Boston Globe state Attorney General, Maura Healy announced for the first time a radical reinterpretation of Massachusetts' long standing gun ban that mirrors the 1994 Clinton federal gun ban and that had been on the books in Massachusetts for approximately twenty (20) years. She unilaterally declared almost every semiautomatic firearm on the market to be illegal under Massachusetts law.

Suit was filed in the United States Distinct Court for the District of Massachusetts on September 22, 2016 by the National Shooting Sports Foundation. The lawsuit challenges the reinterpretation of Massachusetts' long standing gun ban.

On November 22, 2016, Massachusetts filed a motion to dismiss. The motion was heard in the first week of April 2017. Supplemental briefs were filed in April and May 2017. A decision remains pending.

Worman, et al, v. Baker.

On July 20, 2016 in an editorial in the Boston Globe state Attorney General, Maura Healy announced for the first time a radical reinterpretation of Massachusetts' long standing gun ban that mirrors the 1994 Clinton federal gun ban and that had been on the books in Massachusetts for approximately twenty (20) years. She unilaterally declared almost every semiautomatic firearm on the market to be illegal under Massachusetts law.

On January 23, 2017, a complaint was filed in the United States District Court, Massachusetts. The state filed an answer on March 16, 2017.

The defendants asserted Eleventh Amendment defenses of immunity from suit as part of their answer. Written discovery has been exchanged. Certain defendants-the Governor of Massachusetts, Massachusetts State Police, and Superintendent McKeon of the Massachusetts State Police-moved to dismiss on July 14, 2017, and moved to stay discovery against them on July 17, 2017. Other defendants-Attorney General and Secretary of Office of Public Safety-did not move to dismiss or stay discovery. Plaintiff's counsel dropped the Governor without discovery, and dropped Massachusetts State Police, but noticed its deposition, and opposed the motions with respect to Superintendent McKeon.

Plaintiffs took the depositions of representative witnesses from the Executive Office of Public Safety, the Massachusetts State Police, and the Office of the Attorney General. Plaintiffs also took the depositions of the fact witnesses identified by Defendants in their interrogatories. Fact discovery ended on September 15, and Defendants have withheld nearly all internal communications, claiming privilege. The parties took depositions of each other's expert witnesses. Expert discovery closed November 20, 2017. Dispositive motions were due on December 15, 2017. Trial is scheduled for May 1, 2018.

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MICHIGAN

The People of the State of Michigan v. Cortez Lamon Mack.

The applicant's attorney informs as follows:

The applicant had an expired CCW permit and applied to renew his permit. In the meantime, the applicant open carried his firearm. A police car happened to drive by. The applicant was arrested. The applicant was charged with carrying a concealed weapon. On February 10, 2016, after a bench trial in the Wayne County Circuit Court, the applicant was convicted. "The sole issue below was whether the gun that Mr. Mack was carrying was concealed within the meaning of that term in MCL 750.227."

The applicant appealed to the Michigan Court of Appeals, challenging the sufficiency of the evidence and also arguing that the statute was unconstitutionally vague "because the gun was clearly visible since the police saw it and knew it was a gun when they drove past him."

The applicable statute reads as follows:

A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.

Mich. Comp. Laws § 750.227.

The appeal was denied on August 3, 2017. "This court has consistently held that concealment within the CCW statute does not require complete invisibility."

The applicant's attorney applied for leave to appeal to the Michigan Supreme Court.

The applicant's attorney requested support in the form of an amicus brief from the NRA Civil Rights Defense Fund. On October 30, 2017, an amicus brief was filed on behalf of the NRA and the NRA Civil Rights Defense Fund. On November 1, 2017, the Court granted the NRA Civil Rights Defense Fund motion to file an amicus brief.

Timothy Milko.

The applicant's attorney informs as follows:

The applicant owns and operates a gunsmithing, firearms, and outdoors shop. The applicant has a Michigan Concealed Pistol License, is a certified NRA instructor, has no criminal record, and has been found to be of good moral character.

The applicant and his ex-wife went through a divorce. They share joint custody of their children. The Oakland County Circuit Court, Family Division, issued a "consolidated order regarding custody and parenting time," which included the following restriction: "No guns of any kinds [sic] are to be present or in the presence of the children when the minor children are with Father during his parenting time in a vehicle and if in the home they are to be locked and out of sight." When the applicant challenged this restriction, a subsequent order provided that the applicant may also not hunt with his children.

The applicant wishes to challenge the prohibitions and restrictions relating to firearms and hunting. The issues raised include: whether, in light of Heller, restricting the applicant's right to possess firearms for self-defense, infringes the Second Amendment; whether the applicant's Michigan Constitutional right to keep and bear arms for self-defense is infringed; in light of the fact that the applicant is a gunsmith and firearms dealer, whether the order limits the applicant's right to work; and, whether the order infringes the applicant's and his children's statutory right to hunt.

The applicant's attorney believes that a favorable outcome is likely. Heller held the right to possess firearms for self-defense as the core of the Second Amendment. "That right is most acute within the home." The Michigan Constitution provides that "[e]very person has a right to keep and bear arms for the defense of himself and the state." Mich. Const. art. I, § 6. See also, People v Zerillo, 219 Mich. 635, 640; 189 N.W.2d. 927 (1922). "The right to earn a living has been recognized by the Michigan Supreme Court as [being guaranteed by] the 5th and 14th Amendments." The Michigan Code protects the right to hunt. Mich. Comp. Laws § 324.40113a.

Joshua Wade v. University of Michigan.

The applicant's attorney relates the following pertinent facts:

Mr. Wade works for the University of Michigan Credit Union. Mr. Wade holds a valid Michigan Concealed Pistol License. While open carrying in downtown Ann Arbor, Michigan, Mr. Wade encountered a campus police officer who told him if he brought his gun onto campus property he would be arrested. After researching the relevant gun laws, Mr. Wade determined that he could apply to the University of Michigan's Director of Public Safety for permission to carry a firearm on campus.

Mr. Wade applied to the Director of Public Safety for the personal waiver in September 2014. His request was delegated to the Chief of the University of Michigan Police before being ultimately denied.

The University of Michigan's powers, as an arm of the state government, are set forth in the Michigan Constitution, pursuant to which the University is given the power to exercise general supervision of its property.

Mr. Wade challenged the University of Michigan's ban on the carry of firearms on University property under Michigan's preemption statute. Mich. Comp. Laws § 123.1101 et seq. Michigan's Court of Appeals has interpreted the firearms preemption statute broadly. In Capital Area District Library v. Michigan Open Carry, the Court of Appeals held that the preemption statute and Michigan's state firearms regulations preempted the entire field of firearm regulations and that quasi-municipal entities are subject to the state firearms preemption. Furthermore, in Branum v. Board of Regents of the University of Michigan, it was held that - despite the grant of "general supervision powers to the University - the University was subject to generally applicable state laws.

In November 2015, the Court granted the University's motion for summary disposition. Counsel for Mr. Wade filed an appeal with the Michigan Court of Appeals on December 4, 2015. Briefs have been filed and this matter is currently pending oral argument in the Michigan Court of Appeals.

The Michigan Court of Appeals has consolidated two school district cases (Clio and Ann Arbor) which involved the Michigan preemption statute. Oral argument occurred in December 2016 and the Court of Appeals held the applicant's case in abeyance until those cases were decided. Recently, the Michigan Court of Appeals has ruled in the two cases, holding that the two K-12 school districts were not subject to preemption and rejecting the argument that the Michigan legislature completely preempted the field of firearms regulation. Michigan Gun Owners, Inc. v Ann Arbor Public Schools, Mich. App. N.W.2d (2016) (Docket No. 32693) and Michigan Open Carry Inc. v Clio School District, Mich. App. N.W.2d (2016) (Docket No. 329418). The applicants' attorney believes that this flies in the face of the Michigan Supreme Court holding in CADL v. MOC that the Michigan legislature had occupied the field. Those two cases have been appealed to Michigan Supreme Court.

The Court of Appeals issued its opinion for publication on June 6, 2017, affirming the lower court's summary disposition for the Appellee. However, the dissenting opinion was favorable to the applicant's position and supports grounds for appeal to the Michigan Supreme Court.

On July 18, 2017, the applicant's attorney filed an application for leave to appeal to the Michigan Supreme Court. A brief opposing was filed. On September 1, 2017, the applicant filed his reply brief.

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MINNESOTA

Brian Winczewski v. The Township of Osage, Arthur Yliniemi, Osage Sportsmens Club, Inc. f/k/a Osage Sportsman Club, Inc.

The applicant's attorney has related the following pertinent facts:

The applicant, the Osage Sportsmens Club, Inc., a Minnesota as a non-profit corporation, has been in existence since 1952 and maintains a shooting range.

Mr. Brian Winczewski, who owns real estate adjoining the club's property is trying to shut the club down and has initiated "a multi-faceted legal attack" against the club "for the simple purpose of damaging the [c]lub financially." First, Mr. Winczewski brought an administrative challenge at the Minnesota Court of Appeals level to overturn the County's grant of a conditional use permit to clear some trees on the shooting range. The challenge was successful because the County had failed to make the required findings when it had granted the conditional use permit.

The applicant has recently been notified that Mr. Winczewski is in the process of bringing another administrative challenge to the Minnesota Court of Appeals against the club.

Mr. Winczewski has also filed a lawsuit against the club and Osage Township in the Minnesota Seventh Judicial District, County of Becker. The 25 counts include allegations of impropriety regarding a transaction between the club and the Township, and unsubstantiated environmental, nuisance and trespass claims.

Winczewski seeks a declaration that the depositing of "shot and shot-related materials" constitutes environmental violations under Minnesota law. According to Winczewski, every time a firearm is discharged, an act of pollution occurs. If successful, the relief sought by Winczewski would effectively illegalize recreational hunting and shooting sports and decommission every shooting range in the State of Minnesota. While this would clearly be an unconscionable result, Winczewski's complaint does at least present a prima facie argument that firearm discharges could be contemplated and prohibited by various portions of Minnesota law. The potential consequences of a ruling in Winczewski's favor makes this a matter of grave significance for hunters and sportsmen in Minnesota and throughout the country.

Minnesota law includes the Minnesota Shooting Range Protection Act … The Range Protection Act serves to protect ranges that are "in compliance with shooting range performance standards" and other relevant standards from being closed or forced to cease activities. Winczewski seeks to circumvent the Range Protection Act by attacking the Club with environmental claims, but more importantly, the Range Protection Act offers little protection if the Club runs out of money due to this litigation.

The plaintiff recently dismissed one of his lawsuits with prejudice. Thus, "[t]he main litigation has concluded at this point, and it is our hope that it will not be revived."

However, the plaintiff continues his challenge to the club's conditional use permit, in the form of an administrative appeal of the conditional use permit granted to the Club. Oral argument before the Minnesota Court of Appeals occurred on July 20, 2017. "The Club has not received CRDF assistance in connection to the administrative challenge."

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NEW JERSEY

State of New Jersey v. Patrick Albanese.

The applicant's attorney informs as follows:

The applicant, Dr. Patrick Albanese, is a Doctor of Pharmacy. He is a volunteer of public health outreach to the homeless, veterans, and the underprivileged. The applicant has no prior criminal convictions, and is an employed family man with two sons. The applicant keeps his firearms behind a locked basement door or locked in a combination safe. Only the applicant has access to the firearms.

The applicant was subjected to a Department of Children and Families ("DCF") investigation. On January 28, 2017, the applicant was served with a temporary restraining order and a search warrant for firearms. Subsequently, the temporary restraining order was dismissed, and the petitioner submitted a certified, notarized statement recanting every allegation in her application for the temporary restraining order. On March 15, 2017, the DCF investigation concluded that the allegation against Dr. Albanese was "not established."

Pursuant to the temporary restraining order, the applicant's home and vehicle were searched. The applicant cooperated with the police. During the search, an officer found a can of mace in the vehicle. The applicant was charged for possession of the mace in violation of N.J. Stat. Ann. § 2C:39-6(i)(1). Another officer accompanied the applicant to his basement where the shotgun was kept locked in a safe. The applicant cooperated with the officer and opened the safe, when the officer was unable to do so. The applicant was then charged with giving false information to a law enforcement officer in violation of N.J. Stat. § 2C:29-3(B)(4), and with endangering welfare of a child by causing a child harm through abuse or neglect in violation of N.J. Stat. § 2C:24-4(A)(2).

"Nothing in the supplied discovery indicates that either child was found harmed, abused, or neglected … . There was no infliction of physical injury, acts of abuse, mental or emotional impairment, malnourishment, or any other statutory marker of endangered welfare." Even the DCF, applying their own broader child welfare standards, found that such allegations were not established. The applicant's attorney believes that the basis for the endangering the welfare of a child charge may relate to the misapplication of N.J. Stat. § 2C:58-15 dealing minors' access to firearms. This statute provides, in part, as follows:

A person who knows or reasonably should know that a minor is likely to gain access to a loaded firearm at a premises under the person's control commits a disorderly persons offense if a minor gains access to the firearm, unless the person … stores the firearm in a location which a reasonable person would believe to be secure.

N.J. Stat. § 2C:58-15

In the instant case, no minor had or gained access to a loaded firearm. According to the police report, the police could not open the safe's combination lock without assistance from the applicant. The only loaded firearms were secured in a safe and/or in the locked basement. The aforementioned statute specifically provides exemptions to the prohibition if the person "[s]tores the firearm in a securely locked box" or "[s]ecures the firearm with a trigger lock." N.J. Stat. § 2C:58-15(a)(1) and (a)(2). Behind a locked basement door and/or in a locked safe constitutes "a location which a reasonable person would believe to be secure."

On or about April 20, 2017, the applicant applied for the pre-trial intervention program but was denied admission. The applicant's attorney attempted to negotiate a plea with the State. However, the only plea deal offered by the State was for the applicant to enter a guilty plea to a third-degree felony with a sentence of three years of probation. On or about July 13, 2017, the applicant pled to a 3rd degree felony for hindering with a three-year non-custodial probationary sentence and dismissal of other charges. The sentencing occurred on December 8, 2017. The applicant's attorneys were able to affect the transfer of the applicant's probation from New Jersey to his new resident state of Florida.

After the sentencing, the associated weapon forfeiture matter-which had been stayed pending the criminal matter-was dismissed by the State. The applicant's attorneys are currently assisting in the disposition of his firearms to a dealer with proceeds of sale going to the applicant.

State of New Jersey v. Michael Lopez.

Mr. Lopez was a Marine stationed in Florida. His personal residence is in Pennsylvania. While on leave in New Jersey, he was in a one person accident and his "On Star" called 911. When police arrived he provided them with his license to carry a pistol, issued in Pennsylvania, and notified them of the pistol under his passenger seat. The car was impounded and he was charged with careless driving and one count of unlawful possession of a handgun, a second degree felony which carries a mandatory penalty. Mr. Lopez applied for admission into New Jersey's Pre-Trial Intervention (PTI) program, which will result in a dismissal of the charges if Mr. Lopez has no further infractions in the next 36 months. Mr. Lopez was approved for and entered into PTI in November 2015. He successfully completed PTI.

However, on November 14, 2016, the applicant died in an accident. In May of 2017, the applicant's attorney petitioned for and was granted a post mortem expungement of Sgt. Lopez's record. The applicant's mother and father wanted his record, and the family's reputation, cleared. This matter may now be considered closed.

State of New Jersey v. Hishashi Pompey.

The issue was whether the Federal Law Enforcement Officers Safety Act, 18 U.S. Code sec. 926B, applies to him. He was charged and convicted of unlawful possession of a handgun; a possible five year term of imprisonment with a minimum imprisonment of three years.

On April 15, 2016, the trial court denied the applicant's post-conviction relief motion but stayed his sentence pending appeal.

On February 17, 2017, the Appellate Division upheld the applicants' conviction and the denial of post-conviction relief.

On April 14, 2017, Governor Chris Christie commuted Sgt. Pompey's sentence so that he does not have to serve jail time. The applicant's attorney filed a petition for a full pardon. On January 12, 2018, the Governor granted a full pardon.

This matter may now be considered closed. However, the applicant may still move to have the pardoned offense expunged.

State of New Jersey v. Michael A. Rivera, II.

The applicant's attorney relates the following pertinent facts:

Mr. Michael Rivera was a former resident of Florida who moved to New Jersey to reside with his girlfriend, Ms. Loraine Torres. Mr. Rivera possessed a New Jersey firearms purchaser identification card and a permit to carry issued by the State of Florida.

On May 21, 2015, Mr. Rivera was involved in a verbal altercation with Ms. Torres. The altercation became physical when, in an alleged attempt to harm herself, Ms. Torres attempted to swallow a bottle of pills. In an effort to physically restrain her from doing so, Mr. Rivera tazed Ms. Torres with a stun gun. The altercation ended when Mr. Rivera and Ms. Torres were separated by Ms. Torres' son.

Three days later, Ms. Torres contacted the local police department and stated that she had broken up with her boyfriend, and asked that his weapons be removed from her home, because she was concerned for her safety and that of her son. Ms. Torres showed the responding officer two locked safes in the home in which Mr. Rivera allegedly kept several firearms, described the recent physical altercation between the two, and presented the officer with the stun gun that Mr. Rivera had used on her. The police seized the two safes, the stun gun, ammunition containers, and several other items of firearms paraphernalia. Mr. Rivera was not present when the seizures occurred. The seizures were carried out pursuant to N.J. Stat. Ann. § 2C: 25-21d, which authorizes law enforcement, upon responding to a domestic violence call, to "seize any weapon that is contraband, evidence or an instrumentality of a crime." Responding officers must inquire as to the presence of weapons on the premises and seize any weapons that the officers reasonably believe place the victim at risk. At the time of the seizure, Mr. Rivera was not charged with assault or any other crime related to the altercation. A judge denied Ms. Torres' subsequent request for a temporary restraining order, although a no contact order was issued.

Approximately one week after the seizure occurred, police obtained a warrant to search the seized safes. After this search was conducted, Mr. Rivera was charged with violations of N.J.S. § 2C:39-3(k) (unlawful possession of handcuffs, a disorderly persons offense); N.J.S. § 2C:39-5(f) (second degree unlawful possession of an assault weapon); N.J.S. § 2C:39-4(a) (second degree possession of a firearm for an unlawful purpose), N.J.S. § 2C:39-3(f) (fourth degree unlawful possession of hollow-nosed ammunition); N.J.S. § 2C:39-3(h) (fourth degree unlawful possession of a stun gun); N.J.S. § 2C:39-3(j) (fourth degree unlawful possession of large capacity magazines); N.J.S. § 2C:12-1(a)(1) (simple assault, a disorderly persons offense); N.J.S. § 2C:39-5(d) (fourth degree possession of a weapon); and N.J.S. § 2C:39-4(d) (third degree possession of a weapon for unlawful purpose).

In October of 2015, Mr. Rivera applied for entry into New Jersey's pre-trial intervention program, which was denied.

The applicant's attorney argued that while N.J. Stat. Ann. § 2C : 25-21(d) authorizes law enforcement to seize weapons to protect an alleged victim of domestic violence, the statute does not authorize such seized weapons to be used as evidence in a criminal prosecution, as no warrant was obtained for their seizure. The applicant's attorney contends that the warrant police subsequently obtained to search the safes was infirm, as it was obtained after the actual seizure of the safes had already taken place. In April of 2016, a judge granted Mr. Rivera's motion to suppress all evidence seized without a warrant.

The prosecutor's office moved for an interlocutory appeal in regard to the suppression of evidence. The prosecutor's office argued that the plain view exception allowed the seizure. The applicant's attorney opposed said petition and filed a motion to dismiss the case based on Caetano v. Massachusetts, challenging the constitutionality of New Jersey's stun gun ban, due to this United States Supreme Court decision holding a similar Massachusetts ban unconstitutional. Caetano v. Massachusetts, 136 S. Ct. 1027 (2016).

Recently, the New Jersey Supreme Court denied the State's request for cert in regard to the suppression of evidence. This is good precedent for New Jersey firearms owners: if the State seizes a gun safe without a warrant, but later obtains a warrant to open the gun safe, evidence found inside should be suppressed.

Subsequently, the State dismissed all charges, including the unlawful possession of stun gun-which was not part of the suppressed items, but was the subject of the applicant's motion to dismiss based on Caetano.

However, since the applicant was in possession of an "assault firearm," which was still "lawfully" seized for safekeeping purposes under the domestic violence statute, his firearms cannot be returned to him. Furthermore, the applicant loses his New Jersey firearm rights, per N.J.S. 2C:58-3c(8) (for having firearms seized pursuant to domestic violence which were not returned). At a future weapons forfeiture hearing, lawful firearms he possessed should be ordered for sale to a dealer with the proceeds of the sale going to the applicant. The applicant intends to return to his prior state of residence of Florida.

In Re Appeal of the Application for a New Jersey Firearms Purchaser ID Card and Permit to Purchase a Handgun, Mark Scott v. Manchester Township Police Department.

The applicant's attorney informs as follows:

In 2016, the applicant was diagnosed as legally blind due to dystrophies that caused a slow loss of his vision. The applicant had, for decades previously, possessed a New Jersey firearms purchaser identification card for long arms. In 2016, the applicant also applied for three (3) New Jersey permits to purchase a handgun. The applicant explained his medical diagnosis on the forms, and provided doctor evaluations which found him safe to handle firearms.

The police chief denied the applicant's application under N.J. Stat. Ann. § 2C:58-3c(3), alleging a disqualifying medical condition, and N.J. Stat. Ann. § 2C: 58-3c(5), alleging falsification, by answering "no" to question 21 and "n/a" to 22 on his application. Question 21 reads: "Do you suffer from a physical defect or disease?" Question 22-applicable if question 21 is answered as a "yes"-reads: "Does this make you safe to handle firearms?" According to the applicant, his wife had filled out the application for him. Subsequently, the police department requested that the applicant "surrender" his New Jersey firearms purchaser's identification card, which had last been issued to him in 2014. The applicant surrendered his firearms purchaser's identification card.

The applicant appealed his denial to the County Superior Court. The appeal was subsequently denied. The applicant then appealed to the Appellate Division, which affirmed the denial.

The appellate division found that the trial court's conclusion that petitioner falsified his application (regarding questions suffering from a disease or defect that makes it unsafe for him to handle firearms) is supported by sufficient, credible evidence and "reasonably concluded that a legally blind person who has not completed a gun safety course is likely to pose a danger to the public if permitted to purchase handguns."

The applicant's doctor found that the applicant can safely handle and collect firearms, and therefore satisfies a citizen's right to purchase firearms under N.J. Stat. Ann. § 2C:58-3c(3), which requires proof that an applicant can safely "handle" firearms. The applicant argues that he answered the questions on his application correctly, and that the licensing authority erred in deeming his application answers as knowingly false, as the licensing authority was provided with all the information, making the licensing authority entirely aware of all relevant facts.

On July 19, 2017, the applicant submitted a petition for certification to the New Jersey Supreme Court. The petition raised the flowing points:

1. Are legally blind persons "defective or diseased" under New Jersey firearm law and, therefore, required to answer question 21 on NJ FPIC and PPH applications in the affirmative? If yes, does this mean that any person who wears corrective lenses, is color-blind, or in any way has less than perfect 20/20 vision is "defective or diseased" under New Jersey firearm law and required to answer NJ FPIC application question 21 in the affirmative?

2. If an applicant fully informs his issuing authority regarding accurate application answers prior to a decision being made by any issuing authority, should said applicant be found to have effectively or substantially retracted or amended his application answers, or otherwise not be denied for falsification?

3. Is use/shooting of a firearm the same as purchase/handling of a firearm under New Jersey's firearm licensing scheme?

4. Is requiring a New Jersey firearm purchase permit applicant to complete a firearms safety course an "added condition or requirement" contrary to [N.J. Stat. Ann. §] 2C:58-3f and In re Z.K., 440 N.J. Super. 394 (App. Div. 2015)?

5. Does N.J.S. 10:5-5(q)'s definition of "disability" under "Definitions Relative to Civil Rights" apply to New Jersey's Criminal Code 2C:58-3c? Relatedly, is a denial of an NJ FPIC or PPH for being legally blind a violation of civil rights when that applicant can, nonetheless, safely handle firearms?

6. Is Due Process denied when: a) a police chief fails to meet with an applicant prior to issuing a denial; and b) a police chief fails to appear in court on the appeal of denial without any presentation as to good cause for the non-appearance?

7. Is a denial under [N.J. Stat. Ann. §] 2C:58-3c(5)'s "in the interest of public health, safety or welfare" unconstitutionally vague or overbroad, constitute an unconstitutional balancing test, or lack fundamental fairness and Due Process contrary to the [United States Supreme Court] decisions in Heller/McDonald?

8. What scrutiny level is afforded the right to keep arms, and does the decision below rise above rational basis as minimally required under Heller/McDonald?

9. Does being legally blind mean that one should be deprived of Second Amendment right(s)? …

Scott submits that a legally blind person does not lose his or her Second Amendment rights simply because he or she is legally blind; that the ability to safely collect and handle firearms (not to accurately shoot them), which Scott's doctor found he could, satisfies a citizen's right to purchase firearms under [N.J. Stat. Ann. §] 2C:58-3c(3), which only requires proof that an applicant can safely "handle" firearms; and that petitioner materially answered his application form questions correctly in that he does not "suffer from a physical defect or disease which would make it unsafe for him to handle firearms"; and that a finding of falsification was in error as the licensing authority was made fully and truthfully aware by the petitioner of all relevant facts pertaining to his answers to application questions prior to any decision made by any licensing authority on the application.

On October 20, 2017, the New Jersey Supreme Court denied the petition for certification.

The applicant considered filing a petition for certiorari with the United States Supreme Court which was due on January 15, 2018. The applicant was going to raise the following issues:

1. Does being legally blind mean that one should be deprived of Second Amendment right(s)?

2. What scrutiny level is afforded the right to keep arms, and does the decision below rise above rational basis as minimally required under Heller/McDonald?

3. Is Due Process denied when:

a. a police chief fails to meet with an applicant prior to issuing a denial;

b. a police chief fails to appear in court on the appeal of denial without any presentation as to good cause for the non-appearance?

c. a court finds that a legally blind person is "defective or diseased" under New Jersey firearm law and, therefore, required to answer question 21 on NJ FPIC and PPH applications in the affirmative? And, if so, does this mean that any person who wears corrective lenses, is color-blind, or in any way has less than perfect 20/20 vision is "defective or diseased" under New Jersey firearm law and required to answer [New Jersey] FPIC application question 21 in the affirmative?

d. an applicant fully informs his issuing authority regarding accurate application answers prior to a decision being made by any issuing authority, yet is nonetheless denied for falsification.

e. a New Jersey firearm purchase permit applicant is required to complete a firearms safety course, or is it an "added condition or requirement" contrary to N.J.S.A. 2C:58-3f and In re Z.K., 440 N.J. Super. 394 (App. Div. 2015)?

f. an applicant is denied for not showing ability to "shoot" a firearm, when the statute only concerns "purchase" or safe "handling" of a firearm.

4. Is a denial under N.J.S.A. 2C:58-3c(5)'s "in the interest of public health, safety or welfare" unconstitutionally vague or overbroad, constitute an unconstitutional balancing test, or lack fundamental fairness and Due Process contrary to the [United States Supreme Court] decisions in Heller/McDonald?

5. Does N.J.S. 10:5-5(q)'s definition of "disability" under "Definitions Relative to Civil Rights" apply to New Jersey's Criminal Code 2C:58-3c? Relatedly, is a denial of an NJ FPIC or PPH for being legally blind a violation of civil rights when that applicant can, nonetheless, safely handle firearms?

The applicant's attorney has informed that the applicant did not wish to pursue this matter and no petition for certiorari was filed. This matter may now be considered closed.

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NEW YORK

Connie M. Frisbee.

The applicant's attorney relates the following pertinent facts:

In November of 1987, Ms. Connie Frisbee was the victim of a burglary and attempted rape; which occurred in her home, in front of her then 8 year old son. This traumatizing incident caused Ms. Frisbee to obtain a New York State pistol permit, which was issued to her in March of 1988.

Ms. Frisbee maintained her pistol permit without incident for almost 30 years. However, on August 31, 2015, two Chemung County Sheriff's deputies went to Ms. Frisbee's home and seized both her pistol permit and her Smith & Wesson .22 caliber revolver. The deputies did not provide Ms. Frisbee with any paperwork or other materials authorizing the seizures. A county court order, dated August 11, 2015, held, in pertinent part, that "the licensee is a prohibited person, prohibited from possessing a firearm … pursuant to federal statute [18 U.S.C. Section 922(g) (4)] … Ordered, that permit #C10609 issued to Connie M. Frisbee, is hereby suspended and any and all weapons issued and licensed under said permit and all firearms, rifles and shotguns be surrendered immediately …."

The suspension of Ms. Frisbee's pistol permit was based on a 2013 admittance to the Behavioral Sciences Unit (the psychiatric ward) of St. Joseph's Hospital in Elmira, New York. Ms. Frisbee was admitted on July 5, 2013, for observation after overdosing on prescription medication. She was discharged on July 13, 2013. "This was the only time in her life she was ever in a behavioral science unit for any reason." The physician's notes from her stay indicate that she was never found to be a danger to herself or others. Further, Ms. Frisbee's current counselor has submitted a signed letter stating that Ms. Frisbee has no documented history of violence, and that she poses no threat to herself or to others.

The applicant's attorney points out that while state and county authorities cite federal law as the basis for their seizure of Ms. Frisbee's pistol permit and firearm, a provision of the 2013 New York SAFE Act was used to obtain the information that caused the seizure. Specifically, a portion of the SAFE Act mandates that the private health care information of citizens be shared with law enforcement agencies without a citizen's knowledge or consent. This, Ms. Frisbee's attorney argues, is exactly what happened when state authorities requested and received Ms. Frisbee's mental health records from St. Joseph's Hospital without her knowledge or consent.

Ms. Frisbee's attorney notes that Ms. Frisbee is permanently disabled (she has muscular dystrophy) and that her firearm is her only reasonable means of self-defense.

The applicant's attorney lists the legal or constitutional issues raised as the following:

  • The Constitutional issue involves the Second Amendment of the United States Constitution, the right to keep and bear arms.
  • The interpretation of 18 U.S.C. Section 922(g) (4) as it pertains to the specific facts of this case. Specifically, how courts define a person who has been "adjudicated as a mental defective" and "who has been admitted to a mental institution".
  • The constitutionality of the New York Safe Act of 2013 in relation to its infringement on the confidentiality between a mental health counselor and their patients. Specifically, Section 9.46 of the New York State Mental Health Law as created by such Act.
  • Another potential Constitutional issue is Due Process in relation to the procedures for taking away a person's firearms without notice, without an opportunity to be heard prior to the taking of such firearms and the wholesale lack of any safeguards to protect a citizen's rights to keep and bear arms.
  • In New York, the court also notified the paramour of my client that they might soon have the authority to take his firearms simply because he lives in the same home as Ms. Frisbee.

 

Knife Rights, Inc., et al. v. Vance.

The applicants' attorney relates the following pertinent facts:

This is a challenge, on Fourteenth Amendment vagueness grounds, to New York City's enforcement of state laws that prohibit "switchblade" and "gravity" knives.

The applicants' attorney describes the case as follows:

This case is a challenge to the vague and unconstitutional manner in which the Manhattan District Attorney's Office and the New York City Police Department enforce New York State knife law. The Defendants routinely arrest and prosecute individuals and businesses for possessing and selling ordinary pocket knives falsely claiming that they are illegal "gravity knives." Under Defendants' approach to enforcement it is impossible to know what knives are legal or illegal. Significantly, the knife possession charges are also being used as a pretext to subsequently confiscate licensed, registered firearms from many of those who have been arrested (including some of the plaintiffs in this case).

The applicants' attorney informs that the standing issue is of importance in other firearms related and Second Amendment cases:

Judges in the Second and Third Circuits have for several years been bending standing rules to the breaking point in an apparent effort to stop Second Amendment cases from proceeding (the Gregg Revell Port Authority FOPA case is one example). A loss on the pending appeal in this case further threatens the ability of other plaintiffs to bring firearms-related cases in the Second Circuit, while a win would prove useful in subsequent cases.

The complaint was filed in the U.S. District Court for the Southern District of New York on June 9, 2011. The court dismissed the lawsuit based on plaintiffs' lack of standing. It held that no plaintiff alleged a "concrete, particularized, and actual or imminent" injury that would be "redressable by a favorable ruling." A motion for reconsideration was denied on November 20, 2013. The dismissal was appealed to the U.S. Court of Appeals for the Second Circuit on May 15, 2014. Briefs were filed and argument was held on January 13, 2015. On September 23, 2015, the United States Court of Appeals for the Second Circuit affirmed the lower court's holding that the organizations Knife Rights and Knife Rights Foundation do not have standing, but vacated and remanded the district court's holding as to Copeland, Perez, and Native Leather, finding those plaintiffs sufficiently alleged an injury in fact to satisfy standing.

The favorable Second Circuit opinion is being used in several Second Amendment cases in other parts of the country in cases challenging firearms restrictions. (For instance, a Rule 28(j) submission, citing this case, was filed with the Ninth Circuit in Haynie v Harris, a vagueness challenge to the overly broad enforcement of California's "assault weapon" law.)

On June 16, 2016, the bench trial concluded. On January 30, 2017, the District Court ruled against the applicants. On February 16, 2017, the applicants filed their notice of appeal to the United States Court of Appeals for the Second Circuit.

The appeal has been fully briefed, and argument is scheduled for January 18, 2018.

New York State Rifle and Pistol Association, et al. v. City of New York, et al.

After reducing most handgun permits issued by the city from full-carry to "premises only" over the course of decades, the New York City Police Department (NYPD) added further regulations limiting the places a premises permit holder could transport a gun to only ranges approved by the NYPD located within the Five Boroughs of NYC, with a small exception for hunting on New York State approved hunting land. This regulation, enforced by revocation of the person's firearm permit (forfeiture of all handguns and essentially a revocation of Second Amendment rights as to handguns) was put into place several years ago and enforced on a case-by-case basis.

This lawsuit, filed in 2013, challenges the law by raising, among other things, the Second Amendment and the right to travel. In February 2015, the United States District Court ruled in favor of the city. An appeal to the United States Court of Appeals for the Second Circuit was filed in March 2015. The case has been fully briefed. Argument before the Second Circuit was held on August 17, 2016. A decision remains pending.

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NORTH CAROLINA

Robert Navarro and the Caldwell Gun Club, LLC.

The applicant's attorney informs as follows:

In March of 2016, the Caldwell Gun Club received a zoning compliance permit for a "private" gun club that may not be used for "commercial purposes." However, according to the applicant's attorney, neither the permit nor the ordinance define a "private" gun club, nor the terms "private" or "commercial."

Neighbors of the club filed a complaint with the zoning enforcement officer, who then revoked the club's zoning permit for non-compliance. One allegation of non-compliance was that the website mentioned instructional classes "to serve our members and the public." The applicant argued that members of the "public" are still required to purchase daily memberships. However, the zoning enforcement officer argued that "allowing members of the public to use the range-even if using it as members-violates the permit." Another allegation of non-compliance was that the range had created a nuisance because the decibel levels were unacceptable. However, there are no decibel limitations in the ordinances.

Despite the fact that shooting ranges are permitted uses in RA-20 districts, the county's zoning administrator revoked the Gun Club's Zoning Compliance Permits because (1) she determined that the 30-bay range she previously had approved violated the county's highly subjective Noise Ordinance; and (2) she used information from the Gun Club's website to speculate that the Gun Club had become "commercial" and ceased to be "private."

The applicant appealed to the Board of Adjustment.

The applicant's attorney identifies the issues in this case as including: Whether a county enforcement officer can revoke a permit because, on subjective grounds, a permitted gun range has become a nuisance; whether daily memberships can be sold for a "private" gun club in the absence of any zoning regulations specifying what constitutes a "private" club; can a "private" gun club be commercial.

The applicant's attorney argued that there are no definitions of "private" versus "commercial" use in the zoning ordinances, that there are no decibel limitations in the county ordinances, and case law dictates that ambiguities in the ordinance are to be decided in favor of the free use of land. "The nuisance aspect of this case will be difficult for the county to prove when it has no decibel limitations in its ordinance and the decision is entirely subjective. Additionally, the Sport Shooting Range Protection Act of 1997 potentially provides additional protection … ."

On June 15, 2017, the Board of Adjustment voted to uphold the zoning administrator's decision rescinding the use permit, and effectively shutting down the operation of the shooting range.

The applicant's attorney informs that there were many legal and procedural errors, including, but not limited to:

(1) Only the Sheriff can enforce the Noise Ordinance, and after 60-70 complaints, the Sheriff had not enforced the ordinance. The zoning administrator had no authority to assume powers exclusively delegated to the Office of Sheriff.

(2) The Zoning Ordinance unequivocally required the zoning administrator to provide the Gun Club with a notice of violation so that it could explain or respond. Instead, she proceeded straight to revocation. This is a procedural violation as well as a due process issue.

(3) The County actually argued-despite holdings we provided from numerous appellate cases-that it was not obligated to follow its own enforcement laws.

(4) Because the Gun Club was an appellant of a final order issued by a zoning administrator and a petitioner to the Board, due process required that the Gun Club proceed first with evidence and have the final position at closing. The County refused to follow standard procedure, another due process violation.

(5) There was no citation from the Sheriff to be appealed or heard by the Board. We objected to testimony related to noise on the grounds of relevance and prejudice. Nonetheless, the Board allowed the County to present its case first, which included recordings from the shooting range which we believed were manipulated with volume controls from the hearing room sound booth.

(6) The zoning administrator used the volume of calls to complain about noise as her evidence that she should enforce the Noise Ordinance. These calls, however, were generated by the administrator herself and the county attorney who instructed neighbors to make multiple calls. A government official cannot manufacture the evidence to be used against a citizen.

(7) The County's claims and the Board's findings were contradicted by substantial evidence appearing in the record.

The applicant's attorney informs that the appeal may be accompanied by an action for a declaratory judgment that the noise ordinance is too vague to be enforced and that attorneys' fees may be available pursuant to N.C. Gen. Stat. § 6.21.7.

A petition for Certiorari to the Caldwell County Superior Court was filed and a Writ of Certiorari was issued on July 26, 2017.

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OHIO

Darrin Brodbeck v. State of Ohio.

The applicant's attorney relates the following pertinent facts:

The applicant, Mr. Darrin Brodbeck, is currently incarcerated, serving 23 to life, after being convicted of the murder of his girlfriend, Ms. Christine Turner, in June of 2006. He has been incarcerated since 2007, after being convicted of murder, domestic violence, and tampering with evidence.

Mr. Brodbeck has maintained his innocence, asserting that Ms. Turner accidentally shot herself while under the influence.

At the time of the incident, Mr. Brodbeck and Ms. Turner were in a heated argument. Both were intoxicated. Ms. Turner had a BAC of .21 and large amounts of cocaine in her system. The fight turned physical. Ms. Turner then shot herself. Mr. Brodbeck called 911 and also went to get Ms. Turner's mother and stepfather. Subsequently, the mother and stepfather and a neighbor were in the house unsupervised.

When the police arrived, Mr. Brodbeck was taken into custody and accused of homicide. According to the police, Mr. Brodbeck had shot Ms. Turner in the hallway, then dragged her into the bedroom, and then back to the hallway. However, the applicant's attorney asserts there is no physical evidence of Mr. Brodbeck shooting Ms. Turner. The applicant's attorney argues that this is a case of a wrongful conviction based on misleading forensics, junk science, ineffective counsel, and police incompetence.

"This funding request is to pay for … state of the art forensics work ups in order to prove Mr. Brodbeck's innocence … [and] … to hire the expert witnesses we need at this time to get back into court for an evidentiary hearing."

On October 28, 2016, the applicant's counsel filed a motion for leave to file motion for a new trial in the District Court of Franklin County, Ohio. The motion was denied in December 2016. Oral arguments in the Ohio 10th District Court of Appeals were held on July 18, 2017. The Court of Appeals issued a written decision in early August 2017 upholding the denial and informing that a post-conviction relief application was the appropriate venue to bring any new evidence forward. A post-conviction relief petition has been drafted but not yet filed.

Terry Lee Stimmel v. Jefferson B. Sessions III, et al. (formerly, Terry Lee Stimmel v. Loretta Lynch, et al.).

The applicant's attorney relates the following pertinent facts:

On November 1, 1997, the applicant, Mr. Terry Stimmel was arrested for domestic violence after a non-violent argument with his ex-wife. He pled no contest on November 6, 1997. He was never informed that he would be subject to a firearms disability. He did not receive any jail time and fully complied with the court's orders. He has been happily married to his current wife for twelve years and has not been arrested or convicted of a crime since the incident in 1997.

In 2002, the applicant attempted to purchase a firearm and was denied by NICS. On the BATFE Form 4473, the applicant had indicated he had not been convicted of a misdemeanor crime of domestic violence. He subsequently appealed the denial through the Federal Bureau of Investigation's Firearm Denial Appeal Review team. On December 30, 2002, Mr. Stimmel received a correspondence from the FBI indicating his records had matched an individual with a 18 U.S.C. § 922(g)(9) disability.

The applicant filed a lawsuit challenging 18 U.S.C. § 922(g)(9), as unconstitutional under the Second Amendment and Equal Protection Clause, in the United States District Court for the Northern District of Ohio, Eastern Division. On November 21, 2014, the defendant filed a motion to dismiss or in the alternative for summary judgment. The motion to dismiss was granted on September 28, 2015.

The applicant filed a notice of appeal in the Sixth Circuit Court of Appeals on October 28, 2015. On November 25, 2015 the appeal was ordered held in abeyance until the en banc decision in Tyler v. Hillsdale County Sheriff's Department, 775 F.3d 308 (6th Cir. 2014), reh'g en banc granted, opinion vacated (Apr. 21, 2015) was issued. The en banc opinion on September 15, 2016, held that intermediate scrutiny applied in challenges to 18 U.S.C. § 922(g)(4).

The applicant argues that strict scrutiny applies in his case.

[I]ntermediate scrutiny only applied in Tyler because Heller held that firearm bans on the mentally ill are presumptively lawful. Because firearm bans for domestic violent offenders are not presumptively lawful, strict scrutiny should apply because the law burdens an individual fundamental right. Furthermore, we will argue that 18 U.S.C. 922(g)(9) burdens conduct falling within the scope of the second amendment. Finally, we will argue that the law is unconstitutional as applied to Mr. Stimmel because he has been a law-abiding citizen for nearly twenty years and is no more dangerous than any other citizen.

The applicant's attorney identifies the issues presented as:

  • What level of scrutiny should apply to a challenge of a firearm disability pursuant to 18 U.S.C. 922(g)(9)?
  • Is Congress' enactment of appropriations to fund review of corporate but not individual applications for relief from firearms disabilities pursuant to 18 U.S.C. 925(c) in violation of the Equal Protection Clause of the Fifth Amendment?
  • Does 18 U.S.C. 922(g)(9) burden conduct that falls within the scope of the Second Amendment right as historically understood pursuant to United States v. Greeno, 679 F.3d 510 (6th Cir. 2012)?
  • Is 18 U.S.C. 922(g)(9) constitutional as applied to a person without a criminal conviction since 1997?

The case also tests using declaratory judgment as a vehicle for clarifying what state laws serve as predicate offenses for § 922(g) offenses.

The applicant and the government have filed their principal briefs. The Law Center to Prevent Gun Violence filed an amicus brief. The applicant's attorney would have liked to oppose this amicus but could not due to the applicant's limited resources. The applicant's attorney is handing the appeal pro bono. "Funding from the Civil Defense Fund would greatly aid in drafting of the reply brief, preparation for oral argument, and countering the arguments made by the Law Center to Prevent Gun Violence."

Thus far we have argued that strict scrutiny applies in this case. We have also argued that intermediate scrutiny only applied in Tyler because Heller held that firearm bans on the mentally ill are presumptively lawful. Because firearm bans for domestic violent offenders are not presumptively lawful, strict scrutiny should apply because the law burdens an individual fundamental right. Furthermore, we have argued that 18 U.S.C. 922(g)(9) burdens conduct falling within the scope of the second amendment. Finally, we have argued that the law is unconstitutional as applied to Mr. Stimmel because he has been a law-abiding citizen for nearly twenty years and is no more dangerous than any other citizen.

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PENNSYLVANIA

Doe, et al. v. Wolf, et al.

Pennsylvania has enacted a mental health treatment scheme that allows physicians to commit citizens involuntarily for mental health treatment for up to five days without any judicial oversight. Pennsylvania law also prohibits anyone who has been involuntarily committed under this scheme from possessing firearms. The result is that law-abiding citizens are divested of their Second Amendment rights without having basic due process rights, including the opportunity to go before a court, examine witnesses, or present a case.

On November 16, 2016, suit was filed arguing that the deprivation of their Second Amendment rights, as a result of their involuntary commitments, violates the Due Process clause of the Fourteenth Amendment because it occurs without constitutionally adequate legal process.

On January 30, 2017, the defendants moved to dismiss the complaint, arguing that the plaintiffs have no Second Amendment rights because they were declared mentally ill, and, therefore, cannot challenge the process by which they were declared mentally ill, and were divested of their Second Amendment rights.

On February 13, 2017, the plaintiffs filed an opposition and a sur-reply to the defendants' reply. Oral argument was held before the Court on May 16, 2017. On August 8, 2017, the Court, while not reaching the State's motion to dismiss, did grant leave under seal to allow additional fact investigation to the plaintiffs.

On August 23, 2017, the Court entered an order granting in part and denying in part defendant's motion to dismiss. The Court dismissed several defendants but rejected all of defendant's arguments as to the sufficiency of the pleadings, suggesting in many footnotes that if the allegations in the Complaint are true, there may be a Due Process violation. Plaintiff's counsel expects an order from the Court regarding scheduling and discovery shortly that will set a dispositive motions' deadline in August or September of 2018.

Michael Keyes and Johnathan Yox v. Loretta Lynch, et al.

The applicant's attorney relates the following pertinent facts:

Michael Keyes served in the U.S. Air Force and then as a Pennsylvania State Trooper for the past twenty five years. In 2006, following an emotionally troubling divorce, Mr. Keyes was involuntarily committed to the hospital after drinking heavily and making suicidal statements. No firearms were involved or mentioned in regard to the commitment. Mr. Keyes was discharged after approximately two weeks. Mr. Keyes has had no subsequent mental health issues and continued to utilize a number of different firearms in the course of his duties as a State Trooper until his retirement in September of 2015. Although Mr. Keyes was permitted to carry and use firearms in an official capacity as a State Trooper, under 18 U.S.C. § 922(g), individuals who have been involuntarily committed are prohibited in their private capacity from acquiring, possessing, or utilizing a firearm. Therefore, Mr. Keyes is disqualified from possessing firearms in a private capacity.

Mr. Keyes has filed for and received a restoration of his state firearms rights from the Commonwealth of Pennsylvania. However as this restoration does not affect the federal firearms disability, Mr. Keyes filed a request to have his involuntary commitment expunged. This was denied. An appeal was also denied.

Mr. Jonathan Yox served as an infantryman in the U.S. Army from 2008 to 2012. Mr. Yox was honorably discharged in 2012 as a corporal. During this time, Mr. Yox trained with and used a variety of firearms and explosives, and completed at least one tour in Afghanistan. Upon his return from Afghanistan, Mr. Yox was not recommended for any further psychological evaluation after his deployment debriefing.

In 2012, following his discharge, Mr. Yox attempted to purchase a firearm. A Pennsylvania Instant Check System search resulted in the denial of Mr. Yox's attempted purchase. Mr. Yox appealed to the Pennsylvania State Police, which informed him via letter that he was prohibited from owning a firearm under both 18 Pa. Cons. Stat. § 6105 and 18 U.S.C. § 922(g). The denial and prohibition was based on the involuntary hospital commitment in 2006 when Mr. Yox was 15 years old. Mr. Yox was emotionally troubled over his parents' divorce and had inflicted several non-life threatening cuts on his legs. Mr. Yox had no further mental health issues, and went on to finish high school with above average grades and serve honorably in the U.S. Army. Mr. Yox currently serves as a corrections officer with the Pennsylvania Department of Corrections, where he possesses and uses firearms as a routine part of his employment.

In 2013, Mr. Yox filed a petition to expunge his juvenile involuntary commitment in the Commonwealth of Pennsylvania. The trial court removed Mr. Yox's state firearms disability. However the federal disability remains. Although the presiding judge agreed that Mr. Yox may safely possess a firearm without risk to himself or others, the judge explained that he was bound by the Superior Court's decision in the Keyes case, and therefore could not grant an expungement. This places Mr. Yox in a similar position to that of Mr. Keyes, in which all state disabilities have been lifted, and each individual has used firearms as an integral part of their employment.

Michael Keyes and Mr. Yox petitioned the United States District Court for the Middle District of Pennsylvania for federal firearms relief. The matters have been consolidated into one action, Jonathan Yox and Michael L. Keyes v. Holder, et al. (now Michael Keyes and Johnathan Yox v. Loretta Lynch, et al.).

The applicants' attorney argued under the NICS Improvement Act of 2007, a restoration of the above individuals' state firearms right should be sufficient to restore their federal firearms rights. However, the federal government asserts that the Commonwealth of Pennsylvania has not instituted a relief program that complies with the specific requirements of a relief program under the NICS Improvement Act. The applicants' attorney contends that a number of other states have relief programs substantially similar to Pennsylvania's that the government apparently has taken no issue with.

The applicants' attorney furthermore argued that, under Section 101(c)(1) of the NICS Improvement Act, government is prohibited from including the applicants' commitments in the NICS database, because the applicants have been found to no longer suffer from the mental health condition that was the basis for their commitment.

On July 11, 2016, the United States District Court for the Middle District of Pennsylvania found in favor of Mr. Yox's Second Amendment as-applied challenge, but denied relief to Mr. Keyes on the basis of the law of the case doctrine, holding that the Pennsylvania Superior Court had already ruled on the issue.

The applicants' attorney filed a motion to alter/amend the judgment in regard to Mr. Keyes and a request to make the judgment final in regards to Mr. Yox. On August 29, 2016, the district court granted the request to make the judgment final in regard to Mr. Yox, and took Mr. Keyes' motion to alter/amend under advisement. On September 8, 2016, the government filed an appeal with the Third Circuit Court of Appeals. On January 12, 2017, the Department of Justice informed the applicants' attorney that they were unable to obtain the approval of the Acting Solicitor General for the appeal and, since then, the Government has formally withdrawn its appeal relative to Mr. Yox and stipulated to any request for attorney fees being addressed by the District Court. The Government requested a stay regarding any request for attorney fees until the District Court makes a final determination in relation to Keyes, and the applicant's attorney consented to that stay.

Although the Government withdrew its appeal relative to Mr. Yox, it continued to litigate Mr. Keyes' case at the district court level. Mr. Keyes' deposition occurred on February 23, 2017 and discovery concluded on February 28, 2017. On March 23, 2017, Mr. Keyes filed his motion for summary judgment. On April 21, 2017, the government filed its cross-motion for summary judgment and opposition to Keyes' motion for summary judgment. On May 5, 2017, Mr. Keyes filed his final redacted response and on June 9, 2017, the government filed its final redacted response.

On October 11, 2017, the District Court granted Mr. Keyes relief. The Government elected not to appeal the Keyes decision to the Third Circuit. The applicant seeks attorney fees and costs incurred in the litigation from the Government. If the parties are not able to amicably resolve the attorney fees and costs issue, Mr. Keyes has until March 11th to file a fee petition with the court.

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TEXAS

Robert Arwady.

The applicant's attorneys relate the following pertinent facts:

Mr. Arwady owned and operated Arwady Sales, a Federal Firearms Licensee ("FFL"), between the period of 1989 and 2007. During this time, Mr. Arwady had an antagonistic relationship with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("BATFE"). According to the applicant's attorney, this arose out of Mr. Arwady's refusal to become an informant for the BATFE in the BATFE's illegal "Fast and Furious" program, "where he was told that if he cooperated with [BATFE], he could keep his license."

In 1998, Mr. Arwady was indicted, on charges arising from alleged record keeping violations during the course of a 1996 BATFE compliance inspection. Mr. Arwady was acquitted on all counts.

In 2004, Arwady Sales was again the subject of a BATFE compliance inspection, and again record keeping violations were alleged by the BATFE. These allegations included five missing silencers - which the applicant's attorney alleges "were a complete fraud" as they had never been registered to, nor presumably possessed or sold by, Mr. Arwady or his business-and over 600 missing firearms. Mr. Arwady claims that these record keeping discrepancies-as well as those that caused the 1998 indictment mentioned above - were due to the fault of Mr. Jeffrey Lewis, a Sergeant with the Houston Police Department, who had worked at Arwady Sales from 1991-1998 as a part time employee. This employee had been falsifying the business's records in order to cover the fact that he had been stealing firearms from the business. The BATFE's criminal investigation, and subsequent indictment of and plea agreement with Mr. Lewis led to Mr. Lewis' agreement to testify against Mr. Arwady.

Despite Mr. Arwady's best efforts to reconcile the discrepancies alleged by the BATFE, including accounting for all but 30 of the over 600 missing firearms, in 2006, Mr. Arwady was notified that the BATFE would not be renewing Arwady Sale's FFL. Mr. Arwady's appeal was denied at a BATFE administrative hearing. His appeal to the United States District Court for the Southern District of Texas was also unsuccessful. Mr. Arwady filed an appeal with the United States Court of Appeals for the Fifth Circuit, but subsequently withdrew his appeal and closed Arwady Sales. However, Mr. Arwady continued to run another non-FFL business at the same location, selling ammunition, and firearms accessories.

At the time Arwady Sales closed, there were roughly 150 firearms left in inventory. Based on BATFE regulations and federal law, Mr. Arwady believed it to be legal for him to transfer these firearms into his personal collection, and then sell most of them. He began to do this shortly thereafter, offering the firearms for sale on the internet, while storing them in safes at his business (though his attorney notes he never displayed any of these firearms for sale at the business).

In July of 2009, the BATFE executed search warrants on Mr. Arwady's business, residence and vehicle, seizing 165 firearms, and subsequently commencing civil forfeiture proceedings against the firearms. The civil forfeiture action was dismissed on mutual agreement of the parties after the Court denied the government's summary judgment motion. In February of 2014, a federal grand jury in Houston returned an eight count indictment against Mr. Arwady, which included a "notice of forfeiture," for 162 of the 165 firearms. Trial was set for October 19, 2015.

In October of 2015, six of eight counts were dismissed. Mr. Arwady was found not guilty of the remaining two counts on October 21, 2015. The court also ordered the return of the 165 firearms that were seized.

In the aftermath of the government's civil forfeiture having been dismissed by the court sua sponte, and the criminal forfeiture attempt ending with Mr. Arwady's acquittal, Mr. Arwady sought the return of his firearms.

The BATFE eventually returned the firearms but in extraordinarily worse condition than when they were seized. The firearms had been seized in new in box condition. They were returned without the boxes, piled in the bed of a pickup truck, with many having been stripped of parts or of magazines.

The applicant's attorney intends to file a Federal Tort Claims Act and a Bivens action, seeking damages for false arrest, trespass to chattels, and takings without compensation.

The applicant's attorney identifies the legal issues as follows:

1. Liability of the government for a false arrest of a firearm owner, an arrest which disregarded the definition of "engaged in the business" inserted by the 1986 Firearm Owners Protection Act, as well as the requirement for a "willful" state of mind. The grand jury transcript shows that neither the agent nor the prosecutor informed the grand jury of the restrictive definition of "engaged in the business" created by the 1986 FOPA.

2. Liability of the government for a mass seizure of 160+ firearms, a seizure that disregarded the restrictions placed upon such seizure by the 1986 FOPA (e.g., that seized arms must be "individual identified" as having been used in a violation, and that the violation must be willful).

3. Liability of the government for an uncompensated "taking" of private property, where agents used Mr. Arwady's detained firearms as a parts bin, taking parts and magazines from them at will.

The applicant's attorney believes that there is a high potential for a favorable result because:

Mr. Arwady was prosecuted in clear violation of FOPA's provisions. His guns were seized in violation of FOPA as well. The fact that the government dismissed six out of eight counts on the eve of trial, and that a jury acquitted him of the other two, speaks for itself. So does the court's sua sponte dismissal of the civil forfeiture, without the government objecting or appealing."

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VERMONT

In re: Laberge Shooting Range, J.O. 4-247
In re: Jurisdictional Opinion 4-247-Alerted, Laberge Shooting Range
In re: Firing Range Neighborhood Group, LLC.

The applicant's attorney has related the following pertinent facts:

The applicant, Laberge & Sons, Inc., has operated a shotgun shooting range in Charlotte, Vermont for approximately sixty years. The range is available for use by the shooting public at no admission charge. The range's activities have been protected under Vermont's range protection statute and have thus avoided regulation under Vermont's development laws.

In the 1990's, a group of neighbors challenged the range. The State issued a jurisdictional opinion in the range's favor allowing the range to continue to operate.

Two years ago, the plaintiffs asked the State to revisit the jurisdictional opinion, alleging changes to the range justified the elimination of its grandfathered status. The plaintiffs argue that minor improvements to the range require that the range obtain an Act 250 permit. Specifically, the plaintiffs argued that the construction of one new shooting bench and the repair of six existing benches, the erection of three small berms, and the continued collection of donations triggered Act 250 jurisdiction.

Act 250 imposes a noise limit of 70 dBA at the property line, or 55 dBA at the nearest residence. This is a limit that few outdoor ranges, if any, can comply with and one that this range cannot satisfy. The plaintiffs are attempting to circumvent the range protection law, which expressly prohibits neighbors from suing a range for noise-related nuisance claims. If it is held that these minimal changes trigger Act 250 jurisdiction and remove a range's grandfathered status, then no range in Vermont will be able to make any repairs to its facility or make minor improvement to their property without triggering Act 250.

The State issued a new jurisdictional opinion holding that an Act 250 permit was now required. The applicants have appealed the jurisdictional opinion to the Vermont Environmental Court. The plaintiffs unsuccessfully sought to have the appeal stricken as untimely. The plaintiffs appealed that decision to the Vermont Supreme Court, but were unsuccessful in that effort also because they failed to follow the rules for an interlocutory appeal. The Court agreed with the range that the appeal was interlocutory in nature and did not meet the standard for an immediate appeal.

The Environmental Court granted the Range's motion to amend its Statement of Questions (the filing that establishes the scope of the appeal) over the neighbors' objection.

The parties both moved for summary judgment on May 12, 2017. Various replies and memorandum in opposition were filed by the parties May through June 2017. The Court denied the competing motions for summary judgment, but held that the new exemption for shooting ranges related to safety improvements applies retroactively.

Thus, if the applicant can show the improvements that triggered the permit process were safety related, the applicant will prevail and no permit will be required. The applicant's attorney believes that the range will prevail because the improvements included the placement of berms behind the targets, the repair of several shooting benches, and the elimination of two shooting locations and their associated lines of fire. The applicant has engaged an NRA-certified gun safety expert who will execute an affidavit that all the improvements make the range safer and will testify to that effect, if necessary. The anticipated favorable ruling will resolve this matter at the trial court level, but will likely result in an appeal.

North Country Sportsman's Club, Inc. v. The Town of Williston, Vermont.

The applicant's attorney has related the following pertinent facts:

The applicant, the North Country Sportsman's Club, Inc., of one hundred and twenty members, has operated a shotgun shooting range in the Town of Williston, Vermont for approximately fifty years. Under the Vermont range protection statute, local municipalities may not "prohibit, reduce, or limit discharge at any existing sport shooting range." Vt. Stat. Ann. tit. § 2291(8) and § 5227.

In 2004, the Town of Williston enacted a noise ordinance, which, in relevant part, states as follows:

No person shall make, cause to be made, assist in making, or continue any excessive, unnecessary, unreasonably loud noise or disturbance, which disturbs, destroys, or endangers the comfort, health, peace, or safety of others within the immediate vicinity of the noise or disturbance.

Williston, Vt., Noise Control Ordinance § 4 (2004).

The ordinance specifically excludes:

[t]he use of firearms . . . when used for sport shooting consistent with any permitting conditions placed on such use. For sport shooting uses permitted prior to January 1, 2005, the hours of operation will be determined through a written agreement with the Town.

Williston, Vt., Noise Control Ordinance § 6.13 (2004).

The applicant entered into an agreement with the Town of Williston in 2007, limiting the club's hours of operation, reducing the number of events at the club, and requiring the club to provide advance notice to the Town of any special events. This agreement automatically renewed each year, and could be cancelled via notice by either party.

In 2014, the Town asked the club to renegotiate the agreement. The new agreement proposed by the Town sought to further limit the club's hours of operation and the number of special events. The club did not agree to these new terms, and no new agreement was executed by the parties. "Shortly after the Agreement was terminated, on May 6 and 10, 2015, the Town cited the [c]lub for violation of the Town's Noise Ordinance."

The Town contends that in the absence of an agreement as to operating hours, the club was subject to the noise ordinance, that the club's activities violated that ordinance's noise levels, and that the club is only entitled to the state law preemption protection if the club enters into an agreement with the Town as per the Town ordinance. The club's attorney argues that the Town had no right to compel the club to enter into an agreement.

The club then filed a complaint for a declaratory injunction, asking the Vermont Superior Court to find the regulation invalid. The Superior Court held that the Town did not have the right to compel the club to enter into such an agreement. However, the judge also stated, in dicta, that the club could still be required to meet the noise restrictions imposed by the Town noise ordinance. Contrary to the judge's dicta, the club cannot comply with the Town ordinance noise restrictions.

The judge's advice, to enclose the skeet shooting field would be impractical, prohibitively expensive, and beyond the club's means.

On October 25, 2016, the Court entered final judgement in this matter and on October 26, 2016, the applicant filed a notice of appeal to the Vermont Supreme Court. The applicant's appellate brief was filed on December 7, 2016 and the appellee's brief one month thereafter.

In the meantime, the Town agreed to withdraw the noise citation. The parties continued to discuss settlement but the Town wants to impose a hard cap on the number of events that can be held at the Range, something the club does not believe it should have to accept. The Town has initiated the amendment process for its Noise Ordinance in an effort to impose such restrictions by regulation.

On June 2, 2017, the Vermont Supreme Court ruled in the club's favor. As a result, the Town cannot mandate that the applicant enter into an agreement as to the operating hours nor can it cite the applicant for violating the Town's noise ordinance unless there is a material change in the amount of activity at the club.

After the Vermont Supreme Court decision, the Town initially tabled the draft zoning ordinances that would have incorporated the restrictions imposed on the club. During this reporting period, the Town again began the process to amend its zoning ordinance in a further effort to restrict the club's ability to operate freely. However, it will be a few months before any change goes in to effect. At that time, the Club will either challenge the regulation as illegal, purposefully trigger a notice of violation so an appeal can be filed, or enter into further negotiations with the Town in hopes of a settlement.

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VIRGINIA

Goldstein v. Peacemaker National Training Center, LLC, et al.

Please see the entry under West Virginia cases for a detailed description of this case. This Virginia action is a companion case field by the same plaintiffs against the same defendants.

The applicant's attorney relates the following pertinent facts:

In May of 2017, the plaintiffs filed a nuisance claim in Virginia against the applicants. The applicants' attorneys responded to the complaint. The matter was stayed pending the outcome of the West Virginia case.

After the conclusion of the West Virginia action, the applicants attorneys will seek to have the Virginia complaint dismissed also.

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WEST VIRGINIA

Goldstein v. Peacemaker National Training Center, LLC, et al.

The applicants' attorney relates the following pertinent facts:

The applicants, Peacemaker Properties, LLC and Peacemaker National Training Center, LLC (hereinafter collectively referred to as "PNTC") are the Defendants in the above-referenced civil action.

The PNTC's range is a nationally recognized shooting range and firearm training center located in Berkeley County, West Virginia. The PNTC hosts national firearms competitions and training events. The range is open to the public and has approximately 1,000 members.

The plaintiffs, Ben and Diane Goldstein, reside across the state border in Frederick County, Virginia. The plaintiffs allege that the activity at PNTC is a nuisance to their enjoyment of their property.

The plaintiffs purchased their Frederick County, Virginia property in 1976. The PNTC opened in September 2011. Prior to construction, the PNTC applied to the Berkeley County Planning Commission for approval of the shooting range. The plaintiffs allege that the PNTC provided an environmental stewardship plan and promised to be "sensitive to neighbors" regarding their noise concerns. The plaintiffs further allege that the PNTC represented to the Berkeley County Planning Commission that the PNTC's goal was to be below sixty-five (65) decibels (dB) during operating hours. Sixty five decibels is the noise level allegedly associated with the sound of a normal human conversation. Further, plaintiffs allege that the PNTC agreed to amend the PNTC's hours of operation in response to the neighboring community's alleged concerns over noise levels.

The plaintiffs contend that, despite the alleged promises, the PNTC has deviated from its published hours of operation, including allowing shooting as early as 7:00 a.m. on both weekends and weekdays, and as late as 7:30 p.m. on both weekends and weekdays. Additionally, plaintiffs allege that PNTC has produced sounds as loud as ninety-four (94) decibels (dB), which is loud enough to damage human hearing.

On September 18, 2015, the plaintiffs filed a private nuisance in the Circuit Court of Berkeley County, West Virginia, against PNTC, alleging violations of both the City of Winchester, Virginia, Noise Control Ordinance, as well as the Berkeley County, West Virginia Noise Ordinance.

The plaintiffs' residence is located in Virginia, and the PNTC is largely located in West Virginia. Choice of law is disputed in this matter. However, regardless of which state's law the court decides to apply, the applicants' attorney argues that the PNTC is either exempt from any relevant noise ordinances, or, that any such claims are barred by the statute of limitations.

Under Virginia law, "[n]o local ordinance regulating any noise shall subject a sport shooting range to noise control standards more stringent than those in effect at its effect date." Va. Code Ann. § 15.2-917. The Berkeley County, West Virginia noise ordinance expressly excluded shooting ranges when the PNTC was established. Further, at the time of the PNTC's establishment, the Frederick County, Virginia noise ordinance contained a list of different zones in which the County's ordinance applies. The plaintiffs' property is not in any of these zones. Therefore, the applicants' attorney argued that under Virginia law there cannot be any noise control standards applicable to the PNTC, as none applied to the PNTC at the time of its establishment.

Further, even if West Virginia law were to apply, the plaintiffs' claim is barred by the statute of limitations. Under West Virginia law,

[A] person who owned property in the vicinity of a shooting range that was established after the person acquired the property may maintain a nuisance action for noise against that range only if the action is brought within four years after establishment of the range or two years after a substantial change in use of the range.

W. Va. Code §61-6-23(c).

The PNTC was established as a company an LLC in June of 2010. Shooting activity at the range began in April 2011. The plaintiffs filed their complaint in on September 18, 2015. The applicants' attorney argues that the plaintiffs' complaint is therefore barred by the statute of limitations under West Virginia law. However, the plaintiff's attorney contends that the PNTC was not established until September 22, 2011, based on a September 22, 2011 Facebook post on the PNTC Facebook page, announcing that "[a]t long last - Peacemaker is open!"

The applicants' attorney argued that the plaintiffs' complaint should be dismissed pursuant to Rule 19 of the West Virginia Rules of Civil Procedure for the failure to join an indispensable party. The plaintiffs' complaint did not include the Shadow Hawk Defense Range, nor any number of home ranges, all of which are located near the PNTC and the plaintiffs' property and allegedly produce sounds substantially similar to the PNTC. The Court denied the applicants' motion to dismiss and the applicants filed an answer to the complaint.

The applicants filed a motion to certify the choice of law issue to the West Virginia Supreme Court. After briefing, Court denied this motion and the choice of law question remained pending before the trial court. Discovery was contested.

A new range protection law came into effect in West Virginia on July 3, 2017, which provides immunity in cases such as this. Based upon this new law, the applicants filed a motion for summary judgment. On or about August 16, 2017, the West Virginia court granted summary judgment in favor of the defendants.

The Goldsteins have appealed to the Supreme Court of Appeals of West Virginia. Their brief was filed on December 12, 2017. The applicants' response is due January 26, 2018.

In addition to this West Virginia litigation, in May of 2017, the plaintiffs also filed a nuisance claim in Virginia.

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WYOMING

Jose Antonio Lopez v State of Wyoming.

The applicant's attorney informs as follows:

The Circuit Court in Teton County, Wyoming issued a protective order against the applicant for the past 3 years thus depriving him of his rights to possess and use the many firearms he has collected over the years. Mr. Lopez is 51 years old and up until November 2014 had been an 11-year employee, as an electrician specialist, for the National Park Service, in Grand Teton National Park, with security clearance.

In November 2014, the applicant's wife made alleged that the applicant had put an unloaded gun to her head and pulled the trigger and that the applicant hit his minor child. The applicants denied these allegations. The Teton County Prosecutor brought felony charges of child abuse and aggravated assault against applicant. The applicant was found not guilty of the charges after a 3- day jury trial in April of 2015.

In October 2015, the applicant's wife filed a motion in the Teton County Circuit Court to renew a Protective Order she had obtained in November 2014. A hearing was held on the motion to renew and despite her lack of any evidence that the applicant had violated the Protective Order or threatened the applicant's wife, the judge extended the Protective Order for another year. The basis for that Order was her allegation that he slowed down and gave her the finger as he drove down the highway.

Subsequently, the applicant and his wife were divorced in the District Court of Teton County. Because the lower Circuit Court's Protective Order conflicted with the orders of the District Court in the divorce case, the judge issued an Amended Protective Order that also precluded the applicant from possessing any firearms or hunting bows.

On September 27, 2016, the applicant's wife filed another Motion to extend the Protective Order for another year. On December 19, 2016, a hearing was again held. The only new evidence presented is the statement the applicant's wife which is entirely unsupported or corroborated about a brief encounter that allegedly occurred sometime in April 2016, 5 to 6 months before the Motion was filed.

Mr. Lopez denied the allegations and presented evidence that he no longer lived in Jackson, Wyoming after April 18, 2016. Despite the complete lack of any credible evidence the Judge extended the Protective Order even though a jury had found him innocent of the acts alleged by the applicant's wife. The only thing the Protective Order does now, is prevent the applicant from shooting or possessing firearms and hunting. The Divorce Decree specifies what conduct is permissible between the parties.

A Notice of Appeal was filed. The applicant plans to petition the Wyoming Supreme Court to bypass the District Court and hear this appeal. The Wyoming Supreme Court has not considered a case like this and as such the Courts have no guidance in deciding whether there has been a showing of "good cause" to revise a protective order each year, as the statute requires. "Good Cause" is not defined in Wyoming Statute § 35-21-106(b).

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