District of Columbia
Status of cases that fund has agreed to support.ALABAMA
Stan Pate (Alabama). He responded to a trespass, a theft, and a third degree burglary on his property. There were three culprits in the building (a closed restaurant). They were ordered to leave. The police came. The police were not in view when one of the culprits entered the building again. Pate ordered him to leave again. Pate had a shotgun. The trial court found that Pate did not point the shotgun. However, Pate was charged and convicted of menacing, a misdemeanor. In his written ruling, the court held that the presence of the police on the premises caused Pate's right to defend his property to evaporate. A pro bono amicus brief was prepared and filed in the Alabama Court of Criminal Appeals to address this issue. Jay Porter, a member of the Alabama bar, prepared and filed the brief. He was assisted by James Porter and Robert Dowlut. On June 22, 2012, the court affirmed the conviction, with one judge dissenting. It held it was not reasonable under the circumstances for Mr. Pate to arm himself while police officers were present. A petition for discretionary review by the Alabama Supreme Court was filed; the court granted review on October 3, 2012. Brief of amicus curiae NRA Civil Rights Defense Fund was filed on October 17, 2012, in the Alabama Supreme Court. A key issue is the right to bear arms for self-defense, as recognized by the U.S. Supreme Court. The court on July 3, 2013, reversed the conviction. The Alabama Supreme Court held that lawfully arming oneself is not a physical action so as to fulfill an element of Alabama's menacing statute. Pate v. City of Tuscaloosa, 2013 Ala. LEXIS 78.ARIZONA
Prescott Sportsmen's Club (Arizona). The applicant's attorney informs that this matter involves an effort to shut down or impede a shooting range that has been in existence since 1957. Counsel for the club informed on November 22, 2010, that a housing development was built adjacent to the club. Their direct efforts to shut down the club proved unsuccessful. Consequently, they filed a complaint with the Arizona Department of Environmental Quality. The case is presently in the administrative enforcement stage. The club anticipates resolving the matter through negotiation and ideally avoiding any administrative and court adversarial proceedings. Counsel informed on August 1, 2011, it is continuing to negotiate a resolution with the Arizona Department of Environmental Quality (ADEQ). Counsel informed on October 15, 2012, that the case has shifted gears somewhat as ADEQ has backed off, but now the Forest Service has taken the lead and essentially indicated that the range closure needs to meet ADEQ standards (the range is set to move locations in 2014) when its Forest Service lease expires. There are ongoing negotiations for a remediation plan satisfactory to the U.S. Forest Service and Arizona Department of Environmental Quality.
There is no money left under the current NRA Civil Rights Defense Fund grant. Updates have been requested from the club's attorney but have not been received. The club's attorney has, however, informed that the club intends to apply for additional funding from the NRA Civil Rights Defense Fund. The club's website currently informs as follows: "We have moved shooting to our new range in Chino Valley, but the Club still has an obligation to restore our former range in the Prescott National Forest on Granite Basin Road. We are soliciting donations to pay closing expenses: lead reclamation and remediation, removal of existing structures and concrete pads, contouring the land."CALIFORNIA
Dorothy McKay (California). The applicant's attorney informs that the issue in this case is whether the Second Amendment right to bear arms for self-defense is infringed by state laws that prevent a person from carrying arms for self-defense in some manner. The applicant's opening brief was filed in the U.S. Court of Appeals for the 9th Circuit on November 29, 2012. The NRA Civil Rights Defense Fund filed an amicus curiae brief supporting the applicant's position. On November 12, 2013, the court stayed the appeal pending the resolution of other cases where the same issue is raised, including Peruta v. County of San Diego. As of December 2015, this matter is still pending. $7,270 is left under the current NRA Civil Rights Defense Fund grant.
Peruta v. San Diego (Ninth Circuit Court of Appeals). This lawsuit challenges, on Second Amendment and Fourteenth Amendment grounds, the requirement of showing "good cause" to obtain a permit to carry a concealed weapon. The case addresses the issue of whether the right to "bear" arms includes a right to carry a handgun in public.
At the request of ILA, the OGC drafted and filed an amicus brief, on behalf of the Congress of Racial Equality, in this Second Amendment case pending in the Ninth Circuit Court of Appeals. The brief recounts, among other things, the racist history and origin of California gun control laws, and the concealed carry statute in particular.
Oral arguments in this case, along with Richards v. Prieto, were heard at the Ninth Circuit Court of Appeals on June 16, 2015. No decision has been rendered yet.COLORADO
Lawrence Hart (Colorado). Counsel informed in a communication of July 21, 2014, that the issue is self-defense. He is facing charges of attempted murder. He is disabled and required the assistance of a cane or walker. He needed assistance in securing the services of an expert witness for the defense. At trial, the judge disallowed most of the expert witness testimony, and Mr. Hart was convicted of attempted murder in the second degree. He is currently in the process of appealing this conviction. There is no money left under the current NRA Civil Rights Defense Fund grant.
Harwood Loomis (Connecticut). The applicant's attorney relates the following pertinent facts: Mr. Loomis is a resident of the Town of Woodbridge, Connecticut. He holds a valid Connecticut pistol permit and frequently carries for protection. The Town of Woodbridge is governed by a six member Board of Selectmen. A local firearms ordinance was passed by the Board of Selectmen which prohibits the discharge of a firearm on town property and states explicitly that the carrying of a loaded firearm shall be prima facie evidence that the firearm has been discharged unlawfully in violation of the ordinance. Violation of this ordinance subjects the firearms owner to possible arrest and jail time. Furthermore, the local police department interprets the ordinance's reference to town property to apply to all public roads, public sidewalks, town open space, and all other public land, buildings, and parking lots. This local ordinance creates an effective ban on citizens carrying any loaded firearm in public within the town. Mr. Loomis has tried for several years to bring this concern up with the Board of Selectmen and his concerns have not been properly addressed. Counsel plans to challenge the local ordinance - which effectively is a ban on carrying - on grounds of state preemption based on the state's extensive firearms permit regulatory scheme and as a violation of the Second Amendment to the United States Constitution. A demand letter was sent to the Town on May 28, 2015, demanding the ordinance be repealed. The Town subsequently refused to repeal the ordinance, and the attorney for the plaintiff is now in the process of preparing a declaratory judgement action against the Town of Woodbridge, based on the ordinance being invalid under both state and federal law.
Jane Doe and Charles Boone v. Wilmington Housing Authority (Delaware). The housing authority imposed a ban on the possession of firearms, even in the home. A lawsuit was filed challenging the ban as an infringement of the right to keep and bear arms. In the wake of McDonald v. Chicago, 130 S.Ct. 3020 (2010), the housing authority suspended its ban on firearm ownership by tenants. It adopted a new regulations on firearms October 25, 2010. The lawsuit continued in U.S. District Court because the new regulation on possession of firearms in common areas, except incident to transportation through the common areas to one's personal home unit, was too restrictive. A hearing and argument occurred on July 15, 2011. The court held on July 27, 2012, that it would assume without deciding that the common area provision regulates conduct within the scope of the Second Amendment. The court held that the common area provision is not presumptively lawful. However, the court applied intermediate scrutiny and upheld the common area provision. Doe v. Wilmington Housing Authority, 2012 U.S. Dist. LEXIS 104976 (D. Del. 2012). An appeal was taken to the U.S. Court of Appeals for the Third Circuit, where oral argument took place on May 23, 2013. On July 18, 2013, the case was sent to the Delaware Supreme Court for an opinion on Delaware's guarantee to keep and bear arms, which may be interpreted more broadly than the Second Amendment.DISTRICT OF COLUMBIA
Matthew Corrigan (District of Columbia). Mr. Corrigan contacted a telephone suicide hotline. The police broke into his home and seized firearms and ammunition. He was arrested and was charged with possession of unregistered firearms and possession of ammunition for unregistered firearms in the home. Mr. Corrigan filed motions to dismiss and to suppress. The motion to suppress was granted. The government subsequently dismissed all charges.
A civil lawsuit "for damages, pursuant to 42 U.S.C. § 1983, for violation of Plaintiff's Fourth Amendment right to be secure in his person, house, papers, and effects, against unreasonable searches and seizures" was filed against the Metropolitan Police Department and several of its officers. The lawsuit was dismissed in August of 2015, on qualified immunity grounds.FLORIDA
Gerald Tanso (Florida). He runs a gun shop, Lock N Load. A mentally ill man attempted to purchase a firearm from the FFL however was denied due to the NICS check. The mentally ill man then allegedly had a friend purchase the shotgun and used that gun to kill his mother and her boyfriend. Although the ATF and local state's attorney's office investigated the murders and found no wrongdoing by Mr. Tanso or his staff, the Brady Campaign has filed a civil wrongful death action. They are claiming Lock N Load engaged in a straw purchase when they let the mentally ill man's friend purchase the shot gun. This matter is still in the discovery phase. Counsel for Mr. Tanso anticipates concluding discovery in early 2016, at which time counsel plans on moving for a summary judgement in the matter.
Paul Vandiver (Georgia). He owns a gun shop and the gun shop has a shooting range. He was charged with violating Meriwether County ordinance based on a claim that the shooting at the gun shop property is a non-permitted use due to the fact that firearms are and have been discharged from the subject property. The superior court on March 11, 2014, upheld the conviction in magistrate court for violating the ordinance. At that time counsel informed that an appeal would be taken to the Georgia Court of Appeals.
Hauser Lake Rod and Gun Club (Idaho). The club has been in existence for more than 63 years. Houses have been built around the club and noise complaints have been made. It is located in the county, outside the city but within the city's area of impact. The City of Hauser is seeking to reduce the days and hours of operation to one day per weekend. This is in conflict with Idaho's sport shooting range protection law. The club sought a building permit to construct an accessory storage building on its property. Allegations were made of alteration by the club to the non-conforming use. The city issued a violation notice to the club, claiming a violation of the City Municipal Code. It was appealed. The city also informed that the building permit would not be processed until the violation notice was resolved.
The Idaho Constitution limits a city's powers to the area within its municipal boundaries. The city and county actions violate the Idaho Constitution. On June 21, 2013, a petition for declaratory judgment was filed in the district court of Kootenai County. On August 1, 2013, the County Commissioners ruled that the City of Hauser had no authority to render any decision regarding the club. All pending actions of the city against the club were vacated. The county will be the only government that the club will deal with in the future.
A lawsuit for attorney fees was filed in district court. The opening brief was filed on December 3, 2013. On January 28, 2014, the court ordered the parties to mediation. On February 8, 2014, the court ruled it was premature to rule upon the club's request for attorney fees. The matter was remanded to the Joint Board for further determination as to whether such fees are appropriate against the city. Oral argument in this matter was heard on October 27, 2015. As of December 2015, a decision has not yet been announced by the court.
Mountain States Legal Foundation for Elizabeth Morris and Alan Baker (Idaho). This is a favorable right to carry case. Morris v. U.S. Army Corps of Engineers, 990 F.Supp.2d 1082 (D. Idaho 2014) (motion to dismiss denied and injunction granted); Morris v. U.S. Army Corps of Engineers, 2014 U.S. Dist. LEXIS 147541 (D. Idaho Oct. 13, 2014) (plaintiffs' motion for summary judgment granted). The government has appealed to the U.S. Court of Appeals for the 9th Circuit and briefs were filed with court in August of 2015. This matter is pending.
Fernan Rod & Gun Club (Idaho). Counsel informed that this is an effort to shut down a shooting range on federal property. It has been leasing the land since 1989.
Nesbitt, et. al. v. U.S. Army Corps of Engineers. (Idaho). 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.
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. The Federal government filed an appeal with the U.S. Court of Appeals for the Ninth Circuit. Briefs have been filed. The date for oral arguments has not yet been set.
The constitutional issue presented is "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."
The applicant's attorney believes that the case may be granted certiorari by the Supreme Court:
[T]he opinion by the Idaho federal district court strongly repudiated the Corps' regulations as contrary to the Supreme Court's ruling in District of Columbia v. Heller and relied on Ninth Circuit precedent. MSLF believes that, at the Ninth Circuit, MSLF will draw a dissent from any ruling in favor of the Corps, thereby prompting the grant of certiorari and a successful and landmark appearance at the Supreme Court.INDIANA
Hadah LLC v. Tim's Shooting Academy et. al. (Indiana). Edward "Tim" Tomich and his wife Faith Bauer-Tomich own The Tomich Company, LLC, which operates Tim's Shooting Academy, an indoor gun range, in an industrial park in Westfield, Indiana. The indoor target range and gun store, which is zoned for enclosed industrial uses, averages over 1,300 visitors per month and employs a staff of 25 people.
Prior to the 2014 opening, Mr. and Mrs. Tomich went through a long and thorough process in order to secure the necessary approvals for construction and operation of their business. In 2013, after operational and design input had been sought from the Westfield-Washington Township Board of Zoning Appeals Technical Advisory Committee and Plan Commission and the Westfield Police and Fire Departments, building permits and a zoning variance were granted to allow the construction of the shooting range in an industrial park. The applicant's attorney states that the plaintiffs did not appear at any public hearing and did not make any objection during the Academy's applications for permits or variances and the plaintiffs are now barred by the statute of limitations from appealing the granting of the variance.
In November of 2014, almost one year after the opening of Tim's Shooting Academy, a noise complaint was filed by the owners of a neighboring industrial property. This complaint was filed five months after the neighboring property's owners had vacated the site and listed it for sale. The plaintiffs contend that the presence of the shooting range is discouraging potential buyers and inhibiting their ability to sell their property. While the applicants deny these claims, they took significant steps to further restrict noise emissions from their range; including "(1) redesigning and implementing a new HVAC system; (2) buying and installing SONEX sound absorbing material, Quiet Barrier HD Sound Proofing Composite, Echo Absorber Acoustic Panels, and Silent Running (a high performance coating designed to eliminate unwanted sound); (3) installation of an additional soundproof fire door (approved by the Westfield Fire Marshall); and (4) the construction of a specially designed, thirty-foot long concrete block wall (variance approved by City of Westfield, design approved by the State)."
However, in February 2015, the neighbors filed a complaint. The plaintiff's argument rests mainly on a poorly worded line in the Academy's "Project Narrative," written by the design engineer and used in obtaining the variance, which states that the range's safety/insulation features "will prevent any stray bullets as well as sounds from leaving the building." Recent noise testing revealed that sound heard within the range building was well below the acceptable noise standard in an enclosed industrial district. The noise emitted from the range is under the limit prescribed by the local noise ordinance. However, the plaintiff is using the Project Narrative's language to demand that zero noise emanates from the Academy. This is an unreasonable expectation in an industrial zone. The applicant's attorney argues that the Academy is immune from liability under Indiana's Range Protection Act, which provides, in pertinent part, as follows:
A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the operation or use of the shooting range if the construction and operation of the shooting range were legal at the time of its initial construction or initial operation, and the shooting range continues to operate in a manner that would have been legal at the time of the inception or initial operation.
Ind. Code § 14-22-31.5-6.
A preliminary injunction hearing has been ongoing and the City of Westfield has compelled the applicants to seek another variance to refine the Project Narrative language. Trial is set for March 22, 2016.
The applicant's attorney believes there to be a high probability of success in this matter. The attorney adds that this case "has the potential to have widespread impact because only one published decision exists in Indiana addressing the Act, and no decisions have been issued since the Act was amended in 2013."
Shawna Johnson (Illinois). The issue is whether a misdemeanor battery conviction in 2001 against her husband permanently deprives her of the right to obtain an Illinois Firearm Owner's Identification ("FOID") Card. Ms. Johnson is contesting the Illinois State Police's (ISP) decision denying her a FOID Card. In October 2015, a circuit court judge denied the ISP's motion to dismiss Ms. Johnson's appeal, however counsel for Ms. Johnson expects the ISP to motion for a reconsideration of the dismissal. An evidentiary hearing on the appeal is scheduled for January 13, 2016.
Lloyd Turentine (Illinois). Mr. Turentine is a security guard with all proper papers. Nonetheless, he was charged with unlawful carrying of a firearm. He was found not guilty on September 29, 2011. The City of Chicago is refusing to return his firearms subsequent to an acquittal and a denial of a city motion to confiscate the firearms. This refusal will require further litigation. A similar fund case was successfully litigated in Nassau County, New York. Razzano v. County of Nassau, 765 F.Supp.2d 176 (E.D.N.Y. 2011). A complaint, alleging violations of the Second, Fourth, and Fourteenths, was filed in U.S. District Court on July 22, 2013. The crux of the complaint is to compel Chicago and the Chicago Police Department to adopt a policy for post-seizure return of firearms taken from people who were not charged with a crime, or who were acquitted of the charges. The relief sought includes return of the seized firearms. A district court judge dismissed this complaint in March 2014 holding that the complaint was barred by statute of limitations. No further action is pending in this matter.
Matthew Wilson (Illinois). This ILA funding request is a challenge to Cook County's so called assault firearm ordinance. The circuit court dismissed the challenge, and the appellate court affirmed. In April 2012, the Illinois Supreme Court overturned Cook County Circuit Court's decision to grant summary judgement in favor of Cook County, and remanded the case back to the circuit court for trial. The Illinois Supreme Court reversed based on second amendment grounds: "we hold that the Ordinance does not violate the due process and equal protection clauses of the United States Constitution and therefore affirm the judgment of the appellate court and trial court dismissing count I and count VI of the first amended complaint. Additionally, we hold that plaintiffs have sufficiently pleaded a cause of action to withstand a section 2 615 motion to dismiss on their second amendment challenge under count IV of the first amended complaint. Accordingly, we affirm in part and reverse in part, and remand to the trial court for further proceedings on count IV." Wilson v. Cook County, 360 Ill. Dec. 148, 968 N.E.2d 641 (2012).
The case has been pending in the Cook County Circuit Court since the last update on the Court's website reveals that the case was continued on December 18, 2015.
Terry Willis (Illinois). Mr. Willis is involved in target shooting and competition shooting. In 2014, Mr. Willis was advised by the Illinois State Police (ISP) that his Firearm Owner's Identification ("FOID") card had been revoked. He was notified of this after applying for an Illinois Concealed Carry License in January of 2014. Issued by the ISP, a FOID card is required for an Illinois resident to legally possess firearms and/or ammunition.
The revocation was allegedly due to a 1978 domestic violence conviction involving Mr. Willis' then spouse. Per the ISP, individuals convicted of felony or misdemeanor domestic battery, aggravated domestic battery, or a substantially similar offense are not eligible to obtain a FOID card.
Despite his apparent ineligibility by ISP standards, a Macon County, Illinois court ordered Mr. Willis's FOID card reinstated. This order was upheld by a Circuit Court after the Illinois Attorney General intervened on behalf of the ISP. The ISP then issued Mr. Willis a FOID card with a restriction placed on the card indicating that Mr. Willis had been convicted of domestic violence, which effectively prevented him from transferring or purchasing any firearms or ammunition.
An unrestricted FOID card was subsequently issued to Mr. Willis after the court held the ISP Director in contempt for issuing the restricted FOID card. In addition to this finding of contempt, the court awarded Mr. Willis attorneys' fees in the amount of $5,996.50. The ISP then filed a motion asking the court to rehear the matter. This motion was denied.
This matter is pending appeal by the Illinois Attorney General to the Illinois Fourth District Appellate Court. Oral arguments are scheduled for March 2016. Counsel for Mr. Willis is confident he can prevail.IOWA
Donald Cobb (Iowa). The issue was whether the conduct amounted to aggravated assault by the display of a firearm. Mr. Cobb was the victim of threats against his life, to the point where he obtained a restraining order against the father of the so-called victim. The so-called victim came to confront Mr. Cobb in an angry and menacing manner. However, when he saw that Mr. Cobb was wearing a firearm, he backed off and called the law. He claimed Mr. Cobb unclipped his holster. Counsel informed that on August 15, 2012, Mr. Cobb was found not guilty by a jury. Counsel also informed that he had to file an application for return of seized property to get Mr. Cobb's pistol returned.KANSAS
Billy Barker (Kansas). The issue was self-defense. Mr. Barker was facing a voluntary manslaughter charge. The event occurred on March 12, 2012. The deceased turned out to be not armed, but had a reputation for going armed and for very violent behavior. At the time of the shooting, the deceased was attempting to pull Mr. Barker from his truck. Defense counsel poured through hours of audio and transcripts of witness interviews and crime scene photographs. He was able to show that deadly force was justified. At the preliminary hearing the Kansas Attorney General's Office filed a motion to dismiss. The court granted the order of dismissal on February 1, 2013.KENTUCKY
Lt. Michael Behenna (Kentucky & Iraq). First Lieutenant Behenna was a platoon leader in Iraq with the 101st Airmobile Division. On April 21, 2008, his platoon was hit by an explosion that killed two of his soldiers and seriously wounded two soldiers. He detained a suspected Al Qaeda member. During the interrogation the suspect threw a rock that missed Lt. Behenna?s head and moved toward him. Fearing for his life, Lt. Behenna fired twice and killed the suspect. In July 2008 he was charged with premeditated murder. The government claimed the suspect was executed and that the path of the bullets into the body did not support self-defense. The government claimed it had no exculpatory evidence. He was convicted of assault and unpremeditated murder. However, it was subsequently revealed that Dr. Herbert MacDonnell, a government witness, concluded that the path of the bullets was consistent with self-defense. However, motions for a new trial based on the exculpatory evidence were denied. Lt. Behenna was initially sentenced on March 20, 2007, to 25 years imprisonment. The sentence was subsequently reduced to 15 years. The case was appealed to the U.S. Army Court of Criminal Appeals. The main issue was that favorable exculpatory forensic evidence was withheld that collaborated his claim of self-defense. Nonetheless, the court affirmed the conviction on July 21, 2011. An appeal was filed in the U.S. Court of Appeals for the Armed Forces. On July 5, 2012, the court upheld the conviction. It held that even assuming the information Lt. Behenna asserted the government failed to disclose was favorable, it was immaterial in regard to findings and sentencing because the evidence substantially overlapped with other evidence presented by other defense experts.
Anthony Hingle (Louisiana). This matter involves a claim of wrongful termination of employment. Mr. Hingle was terminated by Hertz for having a firearm in his motor vehicle on premises operated by Hertz. Louisiana has a parking lot law that prevents a private employer from prohibiting a person from storing a firearm in a motor vehicle in a parking lot. Updates have been requested from the attorney but have not been received. Apparently, the attorney no longer works at the firm and address this office has on file and no one at that firm claims to know anything about the Hingle case. None of the $15,000 from the current NRA Civil Rights Defense Fund grant have been requested or used.MARYLAND
Kolbe, et. al, v. O'Malley (Ninth Circuit Court of Appeals). Originally naming then governor Martin O'Malley as the primary defendant, this case is a challenge to Maryland's ban on popular semi-automatic rifles and ubiquitous magazines with capacities in excess of ten rounds enacted by the so-called "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 script 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, which is the highest standard of judicial review.
The circuit court's opinion was handed down in early February 2016, and 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 back to the district court with instructions to re-hear the case according to the strict scrutiny standard.MASSACHUSETTS
Commonwealth Second Amendment, Inc., Russell Jarvis, David Flynn, Robert Crampton (Massachusetts). Counsel informed in a December 6, 2011, letter that Massachusetts allows police agencies to seize firearms and ammunition and then turn them over to privately operated bonded warehouses for storage. The warehouse must be paid storage and other fees to obtain a return of property. Often the warehouse fails to respond timely, fees quickly accumulate, and the property is auctioned off. There is no provision for a hearing to contest the ongoing deprivation of property. There is also inadequate regulation of the warehouses. Fees are not regulated. A civil rights violation lawsuit under 42 U.S. Code §1983 was filed against Massachusetts' gun seizure laws and practices in the U.S. District Court on March 27, 2012. Plaintiffs filed a motion for partial summary judgment on October 14, 2013. Defendants filed their opposition on August 15 and 21, 2014. The plaintiffs filed their reply in support of partial summary judgment on September 9, 2014. The court granted summary judgment in favor of the Village Gun Shop on October 15, 2014. The court held the storage company is not a state actor and consequently is not subject to a civil rights violation cause of action.
An appeal was filed in the U.S. Court of Appeals for the First Circuit. On October 30, 2015, the appeals court held that Village Vault does not function as a state actor, and therefore cannot be held liable for the deprivation of the plaintiff's due process rights.MICHIGAN
Mohamad Khraizat (Michigan). This is an appeal from a denial of a permit to purchase a pistol. In 2010, Mr. Khraizat pled guilty to disorderly conduct, which was subsequently dismissed after he completed 6 months of probation without incident. Subsequent to that, he has called the police 5 times. Apparently Dearborn believes that people who call the police should not be issued a permit to purchase a pistol. A petition for writ of mandamus to compel the Dearborn chief of police to issue him a permit to purchase a pistol was filed in the Wayne County Circuit Court on February 19, 2014.
Joshua Wade (Michigan). The applicant's attorney relates the following pertinent facts: Mr. Wade holds a valid Michigan Concealed Pistol License. While open carrying in downtown Ann Arbor, Mich., 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 seeks to challenge 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 of Claims 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. This matter is currently awaiting the results of this appeal.MINNESOTA
Minnewawa Sportsman's Club (Minnesota). This is a shooting range case. Aitkin County was attempting to unilaterally amend the terms of an existing and valid conditional use permit to include restricted hours and days of operation where no such restrictions or conditions are contained in the original permit issued by the county. The Minnesota Court of Appeals held "we agree with Minnewawa that its limited conditional-use-permit application does not open the door for the county to add conditions to the club?s existing permit for use as a firearms range ..... But because the permit imposed several reasonable conditions related to the addition of an archery range and a new road, we affirm in part." Minnewawa Sportsman's Club v. County of Aitkin, 2008 WL 3144945 (Minn. App.). The matter subsequently litigated with the county was the county's claim that there are specific hours and days restricting the use of the range and that the club has violated those restrictions. Counsel informed on November 30, 2010, that the litigation was in the discovery phase. Counsel finally informed on August 30, 2012, that the matter was successfully concluded in district court, and the club members went home smiling.MISSOURI
William David Hill (Missouri). Counsel informed that in 1973 Mr. Hill was convicted of forgery. The issue is whether a restoration of rights after the conviction makes him eligible to obtain permit to carry a concealed firearm. Missouri amended its guarantee to keep and bear arms. Article I, Section 23 now guarantees: "That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those duly adjudged mentally infirm by a court of competent jurisdiction."
The matter was argued before the Supreme Court of Missouri on November 3, 2015. A decision is pending.
Wayne Stallsworth (Missouri). He was denied a concealed carry license renewal by the Jackson County sheriff based on a burglary conviction from 1960. The Governor of Missouri granted Mr. Stallsworth a full pardon in 2004 and he was able to obtain a concealed carry license when he lived in Buchanan County. Mr. Stallsworth appealed the denial in Small Claims Court and won. The sheriff subsequently appealed to the Circuit Court. The Circuit court overturned the ruling and denied Mr. Stallsworth's concealed carry license renewal.
Mr. Stallsworth has filed an appeal with the Court of Appeals, which is pending.
On May 22, 2013, Mr. James Stiffler pulled into the driveway of his home in East Helena, Montana. Mr. Stiffler observed an unknown car in his driveway and spotted a strange man through his dining room window. After finding his front door smashed in, Mr. Stiffler entered his home and encountered the gloved intruder in his computer room. The intruder was much taller and heavier than the then 66-year old Stiffler. When the intruder made threatening motions with his hands and verbally threatened to hurt the homeowner, Mr. Stiffler, armed with a 9mm pistol, fired at the intruded, who at the last second turned away to dodge the incoming fire, and as a result the intruder was struck in the back. The intruder then fled the scene, however died shortly thereafter. After the intruder fled, Mr. Stiffler immediately called 911, and specifically mentioned that they should send an ambulance for the injured assailant.
The sheriff's office initially treated the shooting as though it were a justifiable homicide. This included Lewis and Clark County Sheriff Leo Dutton making an on the record comment to the local newspaper supporting Mr. Stiffler's account of the shooting. "Right now there's nothing to indicate that the details provided by Mr. Stiffler are not accurate," Sheriff Dutton stated on the day following the shooting.
However, on May 23, 2015, 665 days after the shooting occurred, Mr. Stiffler was charged with deliberate homicide. After concluding its investigation, the state alleges that Mr. Stiffler's version of events in inconsistent with the forensic evidence recovered at the scene. The prosecution is alleging that Mr. Stiffler did not shoot when the assailant charged him, but rather shot as the assailant fled through an open window. Mr. Stiffler maintains his version of the events, and his attorney submits that these charges arise from Lewis and Clark County Attorney Leo Gallagher's opposition to gun rights, specifically Montana's 2009 passing of a "castle doctrine," Mont. Code Ann. § 45-3-103.
Mr. Stiffler's filed a motion to dismiss for pre-indictment delay, based on the 665 day delay in prosecution. This motion was denied. After a trial in February of 2016, a hung jury ensued. After learning of the hung jury, Mr. Stiffler agreed to a plea deal with the district attorney's office whereby the DA would dismiss the matter with prejudice in two years. Therefore, this matter is now closed.NEBRASKA
Robert R. Bennie, Jr. (Nebraska). He filed in U.S. District Court a lawsuit under 42 U.S. Code section 1983 against state officials (banking and finance) for retaliation because of the exercise of his First Amendment right to support the Second Amendment. The complaint was filed on June 13, 2011. Mediation occurred on December 18, 2012, but was not successful.NEW JERSEY
Eric Swallick (New Jersey). Counsel informed that Mr. Swallick is charged under New Jersey law with possessing an AR15, possessing a large capacity magazine, and possessing a pistol. The case will be going to trial in early 2016.
George Winston (New Jersey). Mr. Winston was denied a firearm purchaser identification card and a permit to purchase a pistol based upon a New York conviction. In 1974, Mr. Winston pled guilty to attempted assault and in 1989 to criminal possession of a controlled substance. He has received a New York certificate of relief from disability regarding both offenses. Mr. Winston's appeal to the superior court was denied. Upon appeal to the Appellate Division of the Superior Court, the ruling was affirmed.
A petition for cert from the New Jersey Supreme Court was filed recently. The appeal is based upon the following arguments: violation of Article 4, Section 1's Full Faith and Credit Clause; violations of fundamental fairness, due process and comity; failure to pass rational basis scrutiny under a Second Amendment claim; and, failure to provide means of relief impinging upon Second Amendment rights. The petition is pending.
Jose Fernandez (New Jersey). Jose Fernandez is a gainfully employed 30 year of married father of a newborn. When Mr. Fernandez and his family moved to a new home, his wife packed his unloaded revolver in a duffle bag. Sometime later, this duffle bag was used as a carry on for the family's vacation to Florida. Not realizing the firearm was in the duffle bag, Mr. Fernandez was arrested when it was discovered at the TSA checkpoint. Mr. Fernandez was charged with one count of N.J.S. 2C:39-5b (second degree unlawful possession of a handgun). His application to the Pre-Trial Intervention (PTI) program was recently denied. An appeal of this denial is pending, with a trial date set for January 25, 2016.
Connie M. Frisbie (New York). In November of 1987, Ms. Connie Frisbie 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. Frisbie to obtain a New York State pistol permit, which was issued to her in March of 1988.
Ms. Frisbie 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. Frisbie with any paperwork or other materials authorizing the seizures. Ms. Frisbee subsequently received a county court order dated August 11, 2015. The order 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. Frisbie, 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. Frisbie'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. Frisbie 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. Frisbie's current counselor has submitted a signed letter stating that Ms. Frisbie 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. Frisbie'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. Frisbie's attorney argues, is exactly what happened when state authorities requested and received Ms. Frisbie's mental health records from St. Joseph's Hospital without her knowledge or consent.
Ms. Frisbie's attorney notes that Ms. Frisbie is permanently disabled - she has muscular dystrophy - and that due to physically defend herself, her firearm is her only reasonable means of self-defense.
A hearing scheduled for December 17, 2015 in Chemung County Court has been continued and will most likely be held in late January or early February.
Amenia Fish and Game Association, Inc., et al. v. Town of Ameina Planning Board, et al. (New York). The Amenia Fish and Game Association, Inc., has operated as a small shooting club since 1946. The club's property contains an outdoor shooting range. Because the club was in existence before the enactment of zoning laws in the Town of Amenia, it is grandfathered.
The Amenia Fish and Game Association, Inc. is challenging the approval of a large planned residential community, part of which would be situated within 500 feet of the club's outdoor shooting range. The Amenia Fish and Game Association, Inc. fears that the development of this community would subject the club to numerous private nuisance lawsuits over the use of its outdoor shooting range. Additionally, the Amenia Fish and Game Association, Inc. argues that constructing residential housing within 500 feet of an outdoor shooting range would jeopardize the safety of the homeowners. The club is challenging the planned community's approval on both zoning and environmental grounds.
On August 28, 2015, in the Dutchess County Supreme Court, the applicant's attorney informs that he filed:
An Article 78 proceeding challenging initial approvals granted by the Amenia Planning Board to an applicant seeking to develop a large piece of property (to be commonly known as "Silo Ridge Field Club") adjacent to a gun club. Our Petition alleges violations of the New York State Environmental Quality Review Act ("SEQRA"), failure to provide Notice pursuant to the Amenia Town Code, and violations of the Open Meetings Law. In pertinent part, our Petition argues that the Amenia Planning Board failed to mitigate environmental harms to the maximum extent practicable, as required by SEQRA, when it granted initial approvals for a development which includes houses, facilities, and other buildings within close proximity of an outdoor shooting range. The argument is that the Planning Board failed to take the requisite hard look at the dangers posed by such approvals. Further, the fact that Petitioner's use of its property is non-conforming establishes that such use must be constitutionally protected under New York law.
The applicant's attorney believes there to be a fair chance at successfully challenging the proposed development, as he alleges that many of the required zoning and environmental regulatory procedures governing the approval of new developments were not followed.
The applicant's attorney informs that:
A positive result in this matter would have the widespread favorable impact of establishing precedent that a Lead Agency must take a hard look at minimizing environmental damage inherent in developing homes, facilities, and/or buildings in close proximity to an outdoor gun range in order to comply with SEQRA. This precedent would go a long way in protecting established gun ranges from the continued encroachment of suburbia.
The defendants have filed a counter suit, seeking an injunction to have the club shut down for safety reasons and asserting a breach of contract claim. The applicant's attorney informs that he will be filing a summary judgment motion to have the counter-suit dismissed.
Knife Rights, Inc., John Copeland, Pedro Perez (New York). Counsel's letter of March 13, 2012, informed that 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 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. Appellants' brief was filed in the U.S. Court of Appeals for the Second Circuit on May 15, 2014, and the reply brief on August 28, 2014. On September 23, 2015, the United States Court of Appeals for the Second Circuit affirmed the district 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.
New York State Rifle and Pistol Association (New York). This ILA funding request is a challenge to New York's recently enacted firearm and ammunition law. A complaint was filed on March 21, 2013, in the U.S. District Court for the Western District of New York in Buffalo. The grounds include the right to keep and bear arms and equal protection. Plaintiffs' memorandum in support of motion for preliminary injunction was filed on April 15, 2013. On December 31, 2013, the court found that the provisions on so-called assault weapons and large-capacity magazines are constitutional. However, the seven-round magazine limit is unconstitutional and some other provisions must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited. New York State Rifle and Pistol Assn. v. Cuomo, 2013 U.S. Dist. LEXIS 182307. The decision was appealed to the U.S. Court of Appeals for the Second Circuit. Oral argument took place on December 9, 2014.
On October 19, 2015, the Second Circuit Court of Appeals upheld most of the SAFE Act, except for the magazine load limits. A petition for cert to the United States Supreme Court is pending.NORTH CAROLINA
Shannon Whisnant (North Carolina). On or about February 6, 2014, Mr. Shannon Whisnant went to a Wells Fargo Bank branch location in Seabord, North Carolina, for a previously scheduled appointment with a "banker," in order to open a new account. Arriving at approximately 8:53am, Mr. Whisnant exited his pickup truck, and, after briefly approaching the front of the bank building, realized that the bank did not open until 9:00am. At this time he turned around returned to his vehicle where he would wait for several minutes until the bank opened.
A teller inside the bank witnessed Mr. Whisnant approach the bank (and then turn around), and allegedly believed she saw a handgun in his right hand. This teller alerted other bank staff and called the police.
At approximately 9:00am, Mr. Whisnant again exited his vehicle, along with his mother, and approached the bank. Mr. Whisnant was not armed and carried only banking related papers in his hands. The police arrived shortly after 9:00am to find Mr. Whisnant peacefully standing in front of the bank. Mr. Whisnant was compliant when police ordered him to the ground and detained him. Mr. Whisnant was questioned at the scene without first being Mirandized, and his vehicle was search without a warrant. Inside Mr. Whisnant's vehicle, police found a handgun located partially under the driver's seat. Surveillance video purportedly captured the entire incident.
Mr. Whisnant was charged with Going Armed to the Terror of the People and Carrying a Concealed Weapon, a misdemeanor. He was subsequently ordered to surrender all of his weapons while the case was pending.
At a bench trial on May 5, 2015, Mr. Whisnant was convicted of the abovementioned charge. Although surveillance video allegedly captured Mr. Whisnant's peaceable demeanor, bank staff testified that he rattled the doors of the bank while holding a gun. The arresting officer admitted to questioning Mr. Whisnant without the benefit of his Miranda rights, and to searching his vehicle without a warrant. Despite this admission, no evidence was excluded and the trial judge found Mr. Whisnant guilty stating "a reasonable person should know that if you bring a gun onto the property of a bank you are going to scare people."
Upon conviction Mr. Whisnant immediately filed his notice of appeal to Superior Court. Counsel strongly believes that, if unsuccessful in Superior Court, this case would merit an appeal to the North Carolina Court of Appeals, based mainly on Mr. Wisnant's constitutional right (in North Carolina) to openly carry a firearm. The Superior Court hearing in this matter has been postponed numerous times, and trial is currently anticipated for April of 2016.NORTHERN MARIANA ISLANDS CAROLINA
David Radich & Li Rong Radich (Northern Mariana Islands).The will be filed in U.S. District Court for the Northern Mariana Islands situated in Saipan. Counsel informed on December 7, 2012, that the territory has a handgun ban. The issue is whether the U. S. Supreme Court's Heller and McDonald decisions, which forbid on Second Amendment grounds handgun bans, apply to this United States territory.OHIO
William Nieman (Ohio). This is an open carrying case that resulted in the filing of persistent disorderly conduct and obstruction of official business charges. Trial occurred on June 8, 2012. Near the end of the trial, the defendant was offered a plea to a minor misdemeanor with a $60 fine for disorderly conduct. He took the plea and the charges of persistent disorderly conduct and obstruction of official business were dismissed.
Rolland Beard (Ohio). The issue is whether his right to keep and bear arms has been restored following a conviction for misdemeanor domestic violence. An appeal was filed on August 25, 2013, with FBI's NICS Section. The Court of Common Pleas for Perry County, Ohio, on October 17, 2007, restored his right to bear resulting from his June 16, 1995, conviction.
Tyler Eugene Cloud (Oregon). This is a relief from firearm disability case based on felony theft convictions in 2005, when he was a teenager. The Oregon statute imposes a clear and convincing standard of proof in order to prevail. The petition for relief from prohibition against possessing a firearm was filed on May 2, 2013, in the Linn County Circuit Court.PENNSYLVANIA
Michael Keyes (Pennsylvania). He is a police officer who can legally possess a firearm in his official capacity but due to a prior mental health commitment is barred federally from possessing a firearm in his private capacity. In 2006, Mr. Keyes was involuntarily committed while going through a divorce. Mr. Keyes has subsequently been reinstated to full, unrestricted duty as a police officer. He has also had his firearms rights restored at the state level. Although his firearms rights were restored by the Pennsylvania court, they ruled that they do not have the power to grant an expungement of his record so he is still federally prohibited from possessing a firearm in his private capacity. An action in federal district court is being filed by his counsel challenging the constitutionality of his firearms disability. Due to many similarities with the Johnathan Yox (Pennsylvania) case, this case and that of Mr. Yox have recently been combined into one action - Keyes, et al., v. Holder, et al., Docket No. 1:15-CV-00457. Further litigation is pending.
Johnathan Yox (Pennsylvania). He is federally prohibited from possessing a firearm due to a juvenile commitment. Post-commitment he served in the U.S. Army and was honorably discharged in 2012. The Lancaster County Court of Common Pleas restored his state right to keep and bear arms however they ruled that they do not have authority to cure his federal disability. An action in federal district court is being filed challenging the constitutionality of his firearms disability. Due to many similarities with the Michael Keyes (Pennsylvania) case, this case and that of Mr. Keyes have recently been combined into one action - Keyes, et al., v. Holder, et al., Docket No. 1:15-CV-00457. Further litigation is pending.
John Current (Pennsylvania). Mr. Current, an NRA Life Member, attended a party at his son's dojo where earlier in the day Mr. Current tested for his black belt. While at the party, Mr. Current had several drinks and got into a disagreement with some individuals at the party. Mr. Current's son arrived to drive his father home. Mr. Current had a handgun in the trunk of his vehicle at the party and was concerned about the firearm being left behind.
Later that evening the police arrived at the home, confiscated Mr. Current's firearms and took him into custody under a Petition pursuant to Section 302 of the Pennsylvania Mental Health Procedures Act. Mr. Current was examined by a female nurse within the two hours as prescribed by Pennsylvania law. A doctor, who did not examine Mr. Current, signed a 302 commitment against him.
Following discharge and further independent examinations, counsel for Mr. Current filed a Petition for Restoration of Firearm's Rights and for Review and a hearing was held. The petition was subsequently denied.
Counsel believes the superior court will be in a position to reverse the trial court's order, once written. The issues are whether the trial judge erred in failing to grant the petition for Restoration of Firearm's Rights for Offense under prior laws of the Commonwealth and whether the trial judge erred in failing to grant the Petition for Review.
David Titus (Pennsylvania). On October 15, 1979, David Titus pled guilty in Maryland to resisting arrest, an uncharacterized common law misdemeanor at the time, and was sentenced to a sixty day suspended jail sentence, one year of probation, and a five hundred dollar fine. Maryland later codified the crime of resisting arrest and it now carries a maximum sentence of incarceration for up to three years.
In 2013, Mr. Titus attempted to purchase a firearm in Pennsylvania. The background check conducted through the Pennsylvania Instant Check System ("PICS") revealed the 1979 conviction, and the firearm purchase was denied. Mr. Titus submitted a PICS challenge in May 2013 to the Pennsylvania State Police, which was denied. Mr. Titus then challenged the Pennsylvania State Police denial during a subsequent hearing before an administrative law judge. The administrative law judge denied Mr. Titus's request for relief.
Under the Federal Gun Control Act, anyone who has been convicted of a misdemeanor punishable by imprisonment of more than two years is denied the right to possess a firearm. 18 U.S.C. §§ 921(a)(20)(B) and 922(g)(1). According to the Pennsylvania State Police, while there was no maximum sentence for common law misdemeanors in 1979, theoretically Mr. Titus could have received a sentence of more than two years, as a contemporaneous resisting arrest case resulted in a sentence of three years in prison.
Mr. Titus contends that he is no longer ineligible to purchase a firearm under the Federal Gun Control Act, as his gun rights in Maryland have been fully restored following his 1979 misdemeanor conviction.
On August 5, 2015, a Pennsylvania Commonwealth Court overturned and remanded the denial, stating that it was clear Mr. Titus had had his full Maryland gun rights restored, and that therefore the restoration of his Federal gun rights would hinge on him presenting appropriate evidence that his other civil rights had been restored in Maryland. If so, this would result in the restoration of his federal firearms rights. This matter is currently awaiting the scheduling of such a hearing so that Mr. Titus may present more evidence as to the restoration of his other civil rights.
J.C. Greene (Tennessee). This case involves an effort by Hamblen County to shut down a private shooting range. His property is zoned agricultural/forestry. He has lived on or adjacent to this property nearly all his life. A December 29, 2008, letter from the Hamblen County Planning Commission issued a cease and desist order prohibiting Mr. Green from operating a shooting range on his property. Subsequently he received no relief from the county zoning authorities. Therefore, Mr. Greene filed an application for injunctive and declaratory relief in the Chancery Court for Hamblen County on April 3, 2009. The defendant removed the case to federal court, but the federal court sent it back to state court. Counsel for Mr. Greene informed on February 1, 2011, that competing motions for summary judgment were filed by the parties in Chancery Court. The court denied relief on March 3, 2011. However, the order was ambiguous. Therefore, on April 18, 2011, the parties filed an agreed judgment order. The agreed order stated: "To clarify and supplement the Memorandum Opinion, the Court does not find or declare that the Plaintiff is prohibited from using his property for any firearm shooting in compliance with all local, state and federal laws, i.e. hunting or target shooting as ordinarily associated with rural residential, agricultural and forest land uses." This resulted in a partial victory.
Craig Sheaffer and Montlake Classic Clays (Tennessee). Counsel informed on June 11, 2012, that this was an effort to shut down a long existing outdoor shooting range, notwithstanding the adoption of the Tennessee range protection act. Initially the trial court denied relief. However, the Tennessee Court of Appeals relinquished jurisdiction of the case for the trial court to consider the impact on its judgment of the range protection act. The trial court vacated its earlier judgment denying relief to the shooting range in view of the legislation.
Chase Jones (Tennessee). He rescued a woman from a knife wielding attacker. The attacker was charged with attempted murder. Mr. Jones, the rescuer, was charged with reckless endangerment because he fired a shotgun into the locked door in order to open it and rescue the victim. Defense counsel informed on January 7, 2013, that upon further review, the prosecuting attorney decided to dismiss the charges.TEXAS
Bob Arwady. (Texas). 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 a very antagonistic relationship with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("BATFE"). This included a 1998 indictment, and subsequent acquittal, on charges arising from record keeping violations alleged during the course of a 1996 ATF compliance inspection.
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 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 a dishonest employee that had worked at Arwady Sales from 1991-1998. This employee had allegedly been falsifying the business's records in order to cover the fact that he had been stealing from the business.
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 appealed this decision at an administrative hearing, where he was denied, and then to the United States District Court for the Southern District of Texas, where he was also unsuccessful. Before his next appeal could be heard in the United States Court of Appeals for the Fifth Circuit, Mr. Arwady withdrew his appeal and closed Arwady Sales. Mr. Arwady continued to run another 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. His attorney notes that Mr. Arwady 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. These proceeding were later dismissed based on a mutual agreement of the parties. However, 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.
In October of 2015, a court dismissed six of eight counts in an indictment against Mr. Arwady. 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. This matter may now be considered closed.UTAH
Rocky Mountain Enterprises (Utah). This gun shop sold a shotgun with a pistol grip to an 18-year old alien. The purchaser misused the shotgun in a violent crime. The victims and survivors filed in the District Court of Salt Lake County on February 14, 2008, a lawsuit against the gun shop claiming negligence based on a violation of law in selling a handgun (the shotgun) to a person under 21 and failing to obtain a second set of identification from a non-citizen. The lawsuit claims that it was foreseeable that the shotgun would be used in a violent crime. A claim is also made that the sale of the shotgun is a public nuisance. There is evidence that the shotgun, even with a pistol grip, is considered a shotgun under applicable law and not a handgun. A motion to dismiss was denied on March 4, 2009. A February 17, 2010, communication from counsel indicated that pretrial discovery was taking place and soon would be completed. Motions for summary judgment were then filed and are awaiting a ruling from the court. On February 14, 2011, the court heard arguments on the motions. On February 28, 2011, the court ruled that the case may proceed to trial. The Utah Supreme Court declined to reverse that decision on June 18, 2011. The parties reached a confidential settlement on April 11, 2013.VERMONT
Upper Valley Fish & Game Club, Inc. (Vermont). The club leases 176 acres from the Town of Thetford for a small fee as the land is used for a non-commercial, public use. The second 20 year lease is set to expire in 2015. There is opposition to the renewal of the lease. Proposals have been made to impose certain conditions on the club in order for the club to renew the lease including noise reduction, limiting the types of firearms that can be used there, limiting hours and days of operation, environmental cleanup obligations, and more. If imposed, these conditions would make it impossible for the range to operate successfully. Funds will be used to obtain strategic legal guidance during the lease renewal negotiations and pre-litigation preparation.VIRGINIA
Kristopher J. Gasior (Virginia). The government seized a rare Polish military semiautomatic rifle manufactured before WWII. It was a legitimate war trophy brought to United States after WWII. The government claims the rifle is the property of Poland. This is a flawed theory. War trophies bestow legitimate title to property under United States law. If the government's position prevails numerous collector firearms, including those in museums, may be subject to seizure and return to the nation where they were manufactured or used by its military. The case was profiled in a June 30, 2013, article in Washington Post. The federal government filed an interpleader and relinquished all rights to the rifle. Therefore, only Poland has an interest. Mr. Gasior's attorney filed on September 16, 2013, a response to Poland's pleadings and filed a motion for judgment on the pleadings against the Republic of Poland.
Range 82, LLC (Virginia). This is an operating sport shooting range that was defending against efforts by Fauquier County to shut it down. A special permit for the operation of the shooting range was issued in July 2005, subject to 26 conditions. One of the conditions provides for administrative renewal by zoning administrator after five years. Range 82 invested $1.1 Million in site planning, preparation, and the construction of a "no blue sky" shooting facility containing shooting positions at 25, 75,100, and 200 yards. A county supervisor requested that the range submit an application for a special exception to become an outdoor technical school in order to allow the Sheriff's Department and other law enforcement agencies to train there. A neighbor filed a complaint. The notice of violation claimed the range is already a technical school because it teaches shooting. A zoning administrator issued a notice of zoning violation based on lack of special exception. The range permit will not be renewed if there is an outstanding zoning violation. Thus, having the zoning violation overturned was critical to the survival of the range. The range appealed to the Circuit Court. A separate declaratory judgment motion was filed, claiming certain conditions imposed on the range violate Virginia?s range protection statute. On December 9, 2011, a joint motion to dismiss was filed in the Circuit Court of Fauquier County because on November 10, 2011, the Fauquier County Board of Supervisors granted a special exception that resolved all matters pertaining to the case. Counsel for the range informed on August 28, 2012, that the litigation has been successfully concluded.
Leon Spears (Virginia). Counsel informed in a February 28, 2012, letter that Mr. Spears was carrying an unconcealed firearm, which is lawful under Virginia law. Nonetheless, he was subjected to a detention of 40 minutes by Alexandria police. The issue is whether the 4th Amendment was violated. A jury trial has been set for January 5 and 6, 2014.
Bruce James Abramski, Jr. (Virginia). Mr. Abramski is a former police officer. He is not prohibited from possessing a firearm. He transferred the firearm he purchased to another person who is also not prohibited from possessing a firearm. The issues are whether the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its statutory authority by criminalizing otherwise perfectly lawful conduct by simply amending a form - without notice and rulemaking - that firearms purchasers fill out when purchasing a firearm; and whether the Bureau of Alcohol, Tobacco, Firearms and Explosives improperly adopted legislative rules redefining straw-purchases, federal firearm licensees transferring firearms to persons who are not "actual purchasers," and requiring transferees to certify that they are in fact actually buyers, all without notice and comment. The NRA Office of General Counsel prepared and filed on July 25, 2013, a brief of amicus curiae NRA Civil Rights Defense Fund in support of Mr. Abramski's petition for a writ of certiorari in the U.S. Supreme Court. His petition for a writ of certiorari was granted on October 15, 2013.WISCONSIN
Krysta Sutterfield (Wisconsin). She was charged with carrying a concealed pistol. The issue was whether a pistol in a holster on the hip, with the jacket tucked behind the holster, constitutes concealment. She was seated in her car at the time of the arrest. A letter brief on jury instructions was filed on February 16, 2012. The case was tried by a jury. The jury believed her claim that the pistol was not concealed and returned a verdict of not guilty on July 24, 2012.
Hunter's Point Hunt Club (Wisconsin). The Town of Byron denied the club's special use permit request to build a trap, skeet, and sporting clay range. The hunt club?s position is that its previous use brought it under the umbrella of Wisconsin?s range protection law. The game farm is a sport shooting range. Therefore, the hunt club had the right to expand, enhance, or improve the property. The circuit court denied relief. An appeal was taken to the Wisconsin Court of Appeals. The court summarily affirmed in an unpublished opinion. The hunt club on July 20, 2012, filed a petition for discretionary review in the Wisconsin Supreme Court. Counsel informed on December 4, 2012, that review was denied.WYOMING
Gabriel R. Drennen (Wyoming). He was convicted of murder and of aggravated assault and battery. On October 1, 2013, the Wyoming Supreme Court reversed his convictions. The court held "[t]he prosecutors' assertions that Wyoming law prohibits shooting an unarmed man were inaccurate, and the record leaves no doubt that the prosecutors misinformed the jury in that regard." The court also held that the instruction on self-defense was erroneous. "In cases where the evidence establishes, as a matter of law, the defendant was not the aggressor, the jury should not be charged that he had an absolute duty to retreat. In all cases, the jury should be instructed that the defendant was justified in using deadly force only if necessary; consequently, he must consider reasonable alternatives, which may include retreat, before using deadly force." Lastly, the court agreed the jury instructions on murder and voluntary manslaughter were erroneous, as well as the instruction on aggravated assault and battery. Drennen v. State, 2013 Wyo. LEXIS 123 (Oct. 1, 2013).