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Status of cases that fund has agreed to support.
John Ogles (Arizona).Mr. Mr. Ogle had a federal firearms license and his licensed premises are in California. He was attending a gun show in Arizona and engaged in firearm transactions pursuant to his license. The government contended that a federal firearms license is location specific, i.e., a licensee may not conduct any activities at any location other than his licensed premises or a gun show in the state where his licensed premises are located. The government’s position is contrary to United States v. Caldwell, 49 F.3d 251 (6th Cir. 1994), and United States v. Douglas, 974 F.2d 1046, 1049 (9th Cir. 1992). Mr. Ogle was found not guilty by the U.S. District Court in Arizona of violating 18 U.S. Code § 922(a)(1)(A), which is engaging in firearms business without a license. The government appealed. The U.S. Court of Appeals for the 9th Circuit on April 28, 2005, held that a firearm dealer’s license is location specific for purposes of § 922(a)(1)(A). The district court’s judgment of acquittal was reversed. The dissenting opinion claimed that under Caldwell the conviction cannot stand. A petition for rehearing and rehearing en banc was filed on May 11, 2005. It was granted by the court on November 16, 2005. On March 10, 2006, the court held that the judgment of acquittal represented a ruling that the evidence was legally insufficient to sustain a conviction. Consequently, the government’s appeal is barred by the double jeopardy clause. United States v. Ogles, 440 F.3d 1095 (9th Cir. 2006).
Jerry Michels (Arizona). He was a small gun shop owner in Mesa who was raided by BATF in October 2000. The raid was based on a claim that he sold used firearms without having a city "used property sales" license. The agents seized 290 firearms, virtually his entire inventory, and effectively ended his business. They returned a few days later to seize his reloading supplies and equipment. During the first seizure, the novice BATF agents handcuffed Mr. Michel, Mirandized him, took him to their office for four hours of questioning, and then released him, informing he that he was not under arrest. Mr. Michel filed suit for return of his property, pointing out that the city ordinance was not a "published ordinance" enforceable under the Gun Control Act, and that the property had been held for longer than was permissible. He filed a motion for summary judgment and BATF returned 284 of the 290 firearms to Mr. Michel or his customers (some firearms were on consignment or in for gunsmithing). Many of the firearms were damaged during the seizure. They were removed from packing boxes, dumped into plastic garbage cans, and loaded into trucks. Mr. Michel filed a Federal Tort Claims Act claim for their damage and also for false arrest, and then a lawsuit, seeking damages. The government moved to dismiss, which was opposed, and the trial court denied the motion to dismiss. A first settlement conference in 2004 did not succeed (BATF offered $2500, around $10 per damaged firearm). Discovery has been completed, and documents were obtained showing that ATF violated their own rules regarding caretaking of seized firearms. At a second settlement conference in October 2006 ATF raised its offer to $30,000. The settlement conference reconvened on December 14, 2006. The conference resulted in a settlement. On October 8, 2007, counsel for Mr. Michel reported that BATF agreed to pay the FFL $58,500 for damage to his firearms and false arrest.
Tucson Rod & Gun Club (Arizona). Since 1953 the club has had a public shooting range on Forest Service property. The club operated under a special use permit administered by the Forest Service. The Forest Service decided not to renew the permit based on a claim that the club is no longer compatible with the area. It was subsequently discovered that the real reason was an aversion to target practice by civilians. Counsel for the club advised that a conference occurred with the Regional Forester to work out a new location. Subsequently, the Forest Service asked the club to apply for a permit to relocate the range to a different site, somewhat farther into the forest. The range would be of considerably larger size. A series of meetings and conference calls has moved the matter forward to the point where three sites have been identified. The club has obtained a temporary permit for storage of its present equipment. Data on its preferred site has been sent to a range engineer, and upon receipt of his advice a permit application will be submitted. The new site will be more distant than the present one, about 20-30 minute's drive from the edge of the city, but will be two to three times larger than the present site, and able to accommodate action shooting and sporting clays, as the present site does not. Counsel advised on October 17, 2007, that in September 2007 the Club submitted its plans for a new range (prepared by range engineer Clark Vargas) to Forest Service. Forest Service is now evaluating the plans, and preliminary indications are favorable. In the course of preparing the plans, the Club created a technique which may prove of great value in future range design processes. The technique involved using imaging software to overlay aerial photographs on a topographc map, so that the range design team sees the topo features as well as the actual features as one image. This may be of enormous value where a range site is not perfectly flat and has, like this site, some rock outcroppings. Topo maps alone will not show features less than 20 feet high, or whether an elevation is rock or removable earth, while an aerial photo does not permit a designer to judge the height of an elevation.
Harold Fish
(Arizona). Mr. Fish is a school teacher. He was attacked on a trail by a man armed with a screw driver and two vicious dogs. Nevertheless, he was indicted on a charge of second degree murder. Defense counsel filed a motion to remand the case back to the grand jury for a new determination of probable cause. The motion claims, among other things, that the grand jury was mislead with misleading and false testimony, and that the prosecution ignored lethal force practices and procedures of law enforcement agencies, including the Coconino County Sheriff’s Office. The Superior Court on March 24, 2005, granted defendant’s motion to remand to the grand jury for redetermination of probable cause and granted defendant’s motion for the decedent’s mental health records because opinions regarding the decedent’s character and reputation for aggression would tend to mitigate or negate the defendant’s guilt. On November 21, 2005, defendant filed in the Superior Court a motion to preclude evidence or argument relating to his history of gun ownership or use of hollow point ammunition on the date of the shooting. The motion was denied. The state filed a motion in limine to prevent the defendant from introducing evidence about the deceased’s reputation for aggression or violence. The court denied the motion on February 7, 2006. It held the evidence is relevant on the issue of who was the initial aggressor in the confrontation, and because it could corroborate the defendant’s perceptions of the danger he faced that day. A jury found him guilty of second degree murder on June 16, 2006, after two days of deliberation. An appeal is planned. The case was discussed on Dateline NBC on October 7, 2006.
Jeffrey Kinder Sr. and Jeffrey Kinder III (Arizona). The issue was self-defense by a father and son against a convicted felon who was masked and armed with burglar tools. The prosecutor advised the court and defense counsel that the State would object to the issue of self-defense being raised and to a self-defense instruction. The case was tried in superior court without a jury. The so-called victim was impeached. There was evidence that a female acquaintance of the so-called victim tampered with evidence. On February 16, 2006, the judge found the father and son not guilty of all charges. The judge also ordered that the firearms used by the father and son be returned that same day.
NRA v. San Francisco (Calif.).The case is captioned Paula Fiscal et al. v. City and County of San Francisco. The San Francisco city counsel presented a referendum to ban handguns and the sale of all firearms and ammunition. The city’s voters, 58% to 42%, approved the measure. March 1, 2006, was the enforcement date for prohibition on sales, transfers, and distribution of the all firearms, including handguns and long guns, and all ammunition. April 1, 2006, was the enforcement date for the handgun possession ban. Handguns would have been required to be turned in or gotten out of the city. A violation of the ordinance was punishable by 6 months in jail and a $1,000 fine. On November 9, 2005, NRA filed a law suit to strike the ordinance as violative of the state preemption statute. The case was transferred from the court of appeals to the superior court. Oral argument occurred in superior court on February 23, 2006. The judge instructed the city not to enforce the gun ban until he ruled. The deputy city attorney advised in a February 24, 2006, letter that the city would commence enforcement on June 19, 2006. On June 12, 2006, Superior Court Judge James Warren struck down the law on preemption grounds. The court ruled that local governments have no such authority under California law. The city appealed to the California Court of Appeal. On January 9, 2008, the court unanimously found that state law preempted the local ordinance and upheld the striking down of the ordinance by the superior court. The city filed an appeal in the California Supreme Court. Brentwood Rod and Gun Club (Calif.).This was an effort to shut down a range. On July 12, 2005, more than 6 years after the club applied for a land use permit to allow the club to rebuild its facilities and continue its 50-year tradition of providing recreational, training, and safety services to its members, law enforcement, and local residents, Contra Costa’s Board of Supervisors, in a reversal of the county’s previous position, denied the club’s twice approved application based on a last minute change in noise standards. The club filed a lawsuit in superior court challenging the county’s decision on October 11, 2005. The court denied relief, and the club appealed. The California Court of Appeal issued an unpublished opinion on August 17, 2007, upholding the denial of the club's land use permit. The range protection law does not apply to a range that has moved from one location to another. The environmental impact report concluded that if all proposed mitigation measures were adopted, the project would not have a significant noise impact when measure by time averaged noise criterion. However, the court held that "the noise perception criterion" can be used to deny a land use permit for a shooting range because gun fire causes anxiety. Brentwood Rod and Gun Club v. Contra Costa County, 2007 WL 2343842 (Cal.App.). California Rifle & Pistol Assn. v. Lockyer
(Calif.). This case was filed as Hunt and Vroman, et al. v. Lockyear. Two District Attorneys, along with supporters of the right to bear arms, have sued California's attorney general to clarify the state's so-called "assault weapon" law. The law imposes severe penalties. However, even prosecutors at times do not understand the law's vague terms. An amended complaint was filed on August 2, 2002. Its goal is to clarify the exact meaning of vague terms, which are key parts of the law. The court on March 24, 2003, denied the demurrer filed by the California Department of Justice. Cross motion for summary judgment were heard on March 22, 2007. Motions were granted in part and denied in part. The case will proceed to trial in 2007. Nordyke v. County of Alameda (Calif.). This case involves a challenge to a gun show ban. The U.S. District Court denied Nordyke's motion for a preliminary injunction. Nordyke appealed. The U.S. Court of Appeals for the 9th Circuit on September 12, 2000, certified to the California Supreme Court a question on firearm preemption. The California Supreme Court concluded that the municipal ordinance in question, insofar as it concerns gun shows, is not preempted. There was a dissenting opinion. The case is reported as Nordyke v. King, 27 Cal.4th 875, 118 Cal.Rptr.2d 761, 44 P.3d 133 (2002). On September 30, 2002, a supplemental brief was filed in compliance with the U.S. Court of Appeals' order that supplemental briefs be filed addressing federal constitutional issues, including the Second Amendment On February 18, 2003, the court held that the facial challenge to the ordinance based on infringement of expressive conduct fails. Regarding the Second Amendment, the court opined that this guarantee should be revisited. The court also hinted that the individual rights view is the correct view of the Second Amendment and stated the issue is ripe for en banc review. Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003). A petition for en banc review was denied on April 5, 2004. Strong dissents were made. The U.S. Supreme denied a petition for a writ of certiorari on October 4, 2004: Nordyke v. King, No. 03-1710. Nordyke refiled and mounted a First Amendment challenge. The U.S. District Court on September 28, 2005, denied the defendants’ motion to dismiss. The case went through the discovery process. Alameda County filed yet another motion to dismiss. Counsel for Nordyke filed a reply brief which on July 10, 2006. The court dismissed the lawsuit on April 18, 2007. An appeal was filed on the First Amendment issue in the U.S. Court of Appeals. The Nordyke’s brief was filed on November 13, 2007. John A. Sternberg & Aurora Gun Club (Colorado): The City, County and Mayor of Denver filed an action for a declaratory judgment holding that Colorado’s new laws preempting local firearms laws, and providing for “shall-issue” concealed carry permits, were void with respect to Denver as infringements on its state constitutional powers as a home-rule city. The Colorado Attorney General filed a motion to dismiss for lack of standing. The Aurora Gun Club, whose members would be affected by the ultimate decision in the case, filed a lawsuit in their right on November 10, 2003. It was captioned Aurora Gun Club and John A. Sternberg v. City and County of Denver. The parties filed motions for summary judgment, and a hearing occurred on November 12, 2004. The judge held that the statute requiring the issuance of a license to carry a pistol concealed to a law-abiding adult does not violate the state constitutional home rule provision. Part of the state preemption statute was held to violate the home rule provision. Consequently, the court let stand the handgun melting point, firearm storage, so-called assault weapon, and open carrying ordinances. An appeal was filed. Aurora Gun Club withdrew from the appeal. Only Mr. Sternberg remained as the appellant. Oral argument occurred before the Colorado Supreme Court on December 8, 2005. The court has seven members. It split three to three and one judge abstained. Therefore, this June 5, 2006, development affirmed the judgment of the district court by operation of law because the court is equally divided. State v. City and County of Denver, 2006 WL 1520518. Metacon Gun Club (Connecticut). The club is being attacked in state and federal court in an effort to shut it down. The effort is based on environmental law and nuisance. The plaintiffs formed a LLC for the purpose of bringing the lawsuit. The state and federal court actions were filed on May 13, 2004. An additional state court action was filed on July 2, 2004. Metacon’s motion for summary judgment and dismissal was filed in the U.S. District Court for the District of Connecticut on February 10, 2006. The court dismissed one of the environmental claims. The court has set an aggressive discovery and trial schedule. Metacon filed a comprehensive motion to dismiss and for summary judgment in January 2006. The superior court ordered one state case to be withdrawn. Discovery has been completed. A motion for summary judgment was filed in the remaining state case counts on October 3, 2006. The club filed on January 6, 2007, its reply to plaintiffs’ objection to the club’s motion for summary judgment. DISTRICT OF COLUMBIA Colin Bruley (Florida). The issue is whether defense of another creates a public policy exception to Florida's at will employment rule. While the general rule is that the employer is the master of the work place, there is a public policy exception. There are pertinent examples from sister states. The Washington Supreme Court held in Gardner v. Loomis Armored, Inc., 913 P.2d 377 (Wash. 1996) (en banc), that Loomis could not terminate Gardner’s employment for violating a reasonable work rule (leaving his post) because it would violate public policy (the saving of a bank employee’s life). Defense of self and others is a public policy exception to the at will employment rule. Feliciano v. 7-Eleven, Inc., 210 W.Va. 740, 559 S.E.2d 713 (2001). Mr. Bruley was fired on June 12, 2007. He filed a lawsuit in the Duval County Circuit Court on September 25, 2007. The defendants removed the lawsuit to U.S. District Court for the Middle District of Florida. On December 20, 2007, plaintiff filed a motion to remand the lawsuit back to state court. Adventure Outdoors, Inc. and Toccoa Pawn & Variety, Inc.(Georgia). On May 15, 2006, the City of New York filed a lawsuit in the United States District Court for the Eastern District of New York against 5 separate proprietors of a firearm dealership and against 15 separate firearm dealers. The presiding judge is Jack B. Weinstein, who has a history of being assigned cases that creatively seek to put firearm manufacturers, distributors, and dealers out of business through litigation. All of the defendants are located outside of New York and do not do business in New York. Basically, the city alleges that the defendants negligently or intentionally sell handguns to prohibited persons through “strawman” purchases. It is alleged that these handguns are eventually transported to New and are recovered in connection with a variety of violent crimes. The city wants an injunction directing defendants to cease selling handguns illegally, damages for abating the nuisance, compensatory damages proximately caused by defendants’ creation and maintenance of a nuisance, and punitive damages intended to deter these and other firearm dealers from engaging in these unlawful practices. None of the defendants is charged with a crime. James A. Grimes (Indiana). Mr. Grimes fired a warning shot and
detained a man who was fleeing the hit and run of his motor vehicle. Mr.
Grimes' mother, who was a passenger in his motor vehicle, sustained
serious bodily injury. He was charged in Noble County with two counts of
the felony of pointing a firearm. The issue was whether the amount of
force used by Mr. Grimes to detain the hit and run driver was justified
under the circumstances. Mr. Grimes chose to be tried by a jury. On
February 7, 2007, a jury issued a verdict of not guilty on all counts. Kent C. Steury (Indiana). He was charged by information on January 4, 2007, with possessing a loaded firearm (shotgun) on his property after legal hunting hours. He was convicted in Carmel City Court. He requested for a trial de novo in circuit court. He is claiming that the simple possession of a firearm on one’s property after hunting hours, without more, cannot be made a crime in view of Indiana Constitution article I, section 32, right to bear arms for self-defense. A bench trial occurred in Hamilton County Circuit Court on December 10, 2007. Keith Baranski (Kentucky). Baranski was a federally licensed firearm importer who had conditionally imported machineguns for law enforcement sales. BATF agents executed a faulty search warrant on a customs bonded warehouse in Kentucky and seized his property. He filed a civil action under Bivens. On March 14, 2005, the U.S. Court of Appeals for the 6th Circuit held the warrant was invalid, that the agents did not have qualified immunity, and that damages could be sought for his injured reputation and mental anguish, and punitive damages attributable to the means by which the defendants effected the search and seizure. 401 F.3d 419 (6th Cir. 2005). A petition for rehearing en banc was granted on August 5, 2005. Appellant’s brief was filed on August 30, 2005. The full court, en banc, reversed the panel decision on July 3, 2006. It held that warrant clause of the 4th Amendment was satisfied through express incorporation of supporting affidavit that described with particularity items to have been seized; the warrant that was valid upon issuance did not become invalid upon execution; reasonableness clause was not violated by search; and search did not violate clearly established 4th Amendment law. Two judges concurred in the judgment, and four judges dissented. Baranski v. Fifteen Unknown Agents, 452 F.3d 433 (6th Cir. 2006). A petition for a writ of certiorari was filed in the U.S. Supreme Court on September 29, 2006. The government filed its opposition on February 26, 2007. The court denied the petition. "The shootings of the late '90s
leave a haunting question to be answered. Why has the Assault
Weapons Ban of 1994 apparently failed? Far more mass shootings have
happened since the Assault Weapons Ban than ever happened before
it." NRA v. New Orleans (Louisiana). In the wake of hurricane Katrina, police in New Orleans and St. Tammany Parish confiscated firearms from law-abiding citizens. A law suit was filed in U.S. District Court. The court granted a temporary restraining order. St. Tammany Parish and its law enforcement personnel have conceded the legal claims, though denying their involvement. St. Tammany Parish defendants agreed to a permanent injunction against any future gun seizures and a Consent Decree was issued dismissing them from the case. The court issued a permanent injunction against the confiscation and retention of firearms on January 5, 2006. St. Tammany Parish defendants agreed to a permanent injunction against any future gun seizures and a consent decree was issued dismissing them from the case. The New Orleans defendants filed a motion to dismiss for lack of federal subject matter jurisdiction and failure to state a claim. The plaintiffs filed an opposition to the motion. Plaintiffs also filed on February 27, 2006, a motion for contempt against the City of New Orleans, the mayor and the acting chief of police for failure to comply with a temporary restraining order, handed down September 12, 2005, ordering an end to all illegal gun confiscations. A hearing occurred on March 15, 2006. The city started returning firearms on April 17, 2006. The city filed a motion to dismiss the lawsuit. The court denied the motion on August 16, 2006. On February 12, 2007, the judge held the defendant in contempt for failure to provide to plaintiff initial disclosures and discovery responses.
Fraternal Order of Police, Baltimore Chapter (FOP) v. Baltimore County (Maryland).
This was an administrative challenge filed by the FOP against the county over a recently imposed restriction on outside employment involving firearms. The edict from the county came after a shooting when it was discovered the gun used had been legally purchased a year before from a store owned by a police officer. However, the gun was stolen before the shooting and there was no other nexus with the crime. An arbitration hearing was held. The arbitrator held on December 7, 2005, that the Baltimore County Police Department must rescind a rule that bars officers from outside work involving the sale of firearms. The president of the Baltimore County FOP informed on September 15, 2006, that the county withdrew its appeal and dropped the entire issue. Douglas J. Godesky (Maryland). He is an employee of the federal government. He was subjected to harsh discipline, namely, termination, on account of his membership in the NRA and because he is a gun owner. On June 11, 2004, the arbitrator ruled that “the Agency consciously disregarded previous disciplinary decisions of similarly situated employees.” The arbitrator ordered that “the Grievant be reinstated to his position [and] ... awarded full back pay and benefits.” He pursued EEOC, federal tort claims, and a Bivens action against the agency and individuals responsible. The arbitrator determined that the agency was liable for attorney fees from the original union defense of Mr. Godesky’s labor case. A February 21, 2006, letter from Mr. Godesky’s attorney informed that the arbitrator ruled that the agency owes $105,408 in fees and costs. On January 3, 2006, he timely responded to the Merit Systems Protection Board’s rulings that it take custody on the petitions for review addressing illegal profiling and retaliation. A lawsuit was filed on those issues in U.S. District Court in Baltimore on March 7, 2006. An October 27, 2006, letter from counsel advised that a response was filed to the agency’s motion to dismiss. Plaintiff withdrew from the EEOC administrative process and filed a complaint in U.S. District Court. Counsel advised in a January 29, 2007, letter the first U.S. District court case addresses Privacy Act violations and retaliatory acts. The second U.S. District Court case addresses Title VII violations based on the original firing and discrimination against Mr. Godesky. Ralph C. Brown (Maryland). This is an appeal from the denial of a permit to carry a pistol. His attorney informed on November 19, 2006, that Mr. Brown had a permit since 1997. He was convicted in 1984 in Washington, D.C., of possessing a prohibited weapon, namely, a pipe. The penalty at that time was not more than 1 year. Therefore, he was not disqualified under federal law or Maryland law from possessing a firearm. The attorney general of Maryland opined in 2006 that the disqualification for firearm possession depends on the penalty as it exists at any time you possess a firearm in Maryland. Furthermore, Maryland would look at the offense in the other state and apply Maryland's equivalent statute and the penalty it carries in Maryland to determine whether the possession of the firearm in Maryland is legal. The recent attorney general of Maryland's opinion makes Mr. Brown ineligible to possess a firearm and thus makes him ineligible to obtain a permit to carry a pistol. An appeal was taken to the Frederick County Circuit Court from the decision of the Maryland Handgun Permit Review Board. Briefs were filed. Oral argument occurred before Judge Theresa Adams on October 24, 2007. On November 27, 2007, the court denied relief. The court applied a highly deferential standard of review to an administrative agency decision. Counsel informed on February 19, 2008, that this case has now been docketed in the Maryland Court of Special Appeals as an administrative agency appeal. Laurence Ballard (Maryland). He is a retired Montgomery County police officer. He was charged with false imprisonment. It did not involve a firearm. He entered a plea of no contest and was given probation before judgment. His firearms were stored with a federally licensed firearms dealer during the period of probation, which he completed successfully. He filed a motion to return the firearms after he completed the period of probation. He is not prohibited from possessing a firearm under state or federal law. Nonetheless, the judge denied the motion. An appeal has been filed in the Maryland Court of Special Appeals. Mr. Ballard’s opening brief was filed on November 28, 2007. On January 25, 2008, the State of Maryland filed its brief.
South Bay Rod and Gun
Club (Calif.). A 24 acre plot of land immediately north and east of the club’s 300 yard impact area was purchased. It was to be purchased for the club’s benefit. The club filed a complaint in the Diego County Superior Court on August 19, 2004. The complaint is for breach of fiduciary duty, specific performance, declaratory relief, and imposition of constructive trust. This case involves a dispute over the purchase of real property to assure that the best interests of the club are protected. Ownership of this land is needed to insure the future of the club in its shooting activities. All trial briefs have been filed. The club’s reply brief was filed on August 19, 2005. The court issued its decision on September 12, 2005. It held the cause of action was barred by the statute of limitations, and, furthermore, the plaintiff did not meet his burden of proving his claims. The case is on appeal. A response brief was filed according to counsel’s letter of April 2, 2007.
"Gun control policies and
attendant legislation are seen by many as the solution to the
problem of criminal possession of guns. However, modern gun control
efforts have not simply forbidden felons from possessing guns."
Kristian Spencer Roggendorf Lake Oswego,
Oregon 1st Place Winner, CRDF Writing Contest
CONNECTICUT
Shelly Parker and Others v. District
of Columbia (District of Columbia). This is a challenge to the handgun ban solely on Second Amendment grounds. The fund filed an amicus curiae brief on June 2, 2004, in the U.S. Court of Appeals for the District of Columbia Circuit. On August 25, 2004, the court ordered this case to be held in abeyance until Seegars is decided. The District of Columbia on July 15, 2005, filed a motion to remand the case with instructions to dismiss it or, alternatively, for summary affirmance in view of the Seegars decision on lack of standing. A motion in opposition was filed. On November 2, 2005, the court denied a motion for summary affirmance. It further ordered that a briefing schedule be established. The parties were ordered to address standing and the merits of the case in their briefs. Appellants’ brief was filed on June 1, 2006, and the reply brief on August 21, 2006. Oral argument occurred on December 7, 2006. On March 9, 2007, the court struck down the handgun ban on Second Amendment grounds. On May 8, 2007, the court denied the District of Columbia’s petition for rehearing. The case is reported as Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007). The District of Columbia filed a petition for a writ of certiorari in the U.S. Supreme Court on September 4, 2007. It was granted on November 20, 2007. The NRA and NRA Civil Rights Defense Fund filed a joint amicus curiae brief in the Supreme Court on February 4, 2008. Oral argument took place on March 18, 2007.
GEORGIA
Richland Creek Sportsmen's Club (Kentucky). Mr. Alex Lyons has been granted a conditional use permit to open a shooting range. A couple of neighbors are trying to shut down the range and are trying to litigate the range into defeat with protracted and costly litigation. On August 5, 2005, the circuit court entered an order finding that the decision of the board of adjustment’s decision to grant the permit for the range should be affirmed in its entirety. The persons against the range filed a notice of appeal to the Kentucky Court of Appeals on September 22, 2005: Charles and Donna Clifford v. Harrison County Board of Adjustment and Alex Lyons. On January 5, 2007, the court in an unpublished opinion vacated the order of the circuit court. Clifford v. Harrison County Board of Adjustment, 2007 WL 29426 (Ky. App.). On February 20, 2007, there was a status hearing. The cases was remanded to the Board of Adjustment. The board will be required to make findings of fact sufficient to meet minimum due process requirements.
Henry S. Queener Birmingham, Alabama
2nd Place Winner, CRDF Writing
Contest
Todd Lin Chow (Md.). On April 23, 2003, On April 23, 2003, Todd Lin Chow, a District of Columbia Metropolitan Police Officer in good standing, met with his friend, Man Nguyen, in Maryland. Mr. Nguyen wanted to purchase a pistol from Officer Chow. It was decided that before any agreement to buy the pistol would be consummated and the terms of an agreement would be reached, Mr. Nguyen would first test-fire the pistol at a local shooting range. Subsequently, Mr. Nguyen was stopped by the police and the pistol was seized. Officer Chow was charged with transferring a pistol to a person other than a firearms dealer without first going through the application for transfer process with the Maryland State Police and receiving an approval. He was convicted. On June 2, 2005, the Maryland Court of Special Appeals upheld the conviction. The court held that a “transfer” under the statute includes a temporary transfer without consideration, that is, without payment of anything of value. There are a multitude of “temporary transfer” scenarios where the present decision in Chow will weigh against the everyday activities of firearm owners. A petition for a writ of certiorari was filed in the Maryland Court of Appeals. The Office of General Counsel, on behalf of the NRA Civil Rights Defense Fund, filed a motion in support of certiorari on October 20, 2005. The court agreed to hear the case. The Office of General Counsel, on behalf of the NRA Civil Rights Defense Fund, filed an amicus curiae brief in support of Officer Chow on January 27, 2006. Oral argument occurred on April 10, 2006. The court reversed the conviction on July 27, 2006. Chow v. State, 393 Md. 431 (2006).
David R. Pepicelli (Massachusetts). The chairman authorized on September 19, 2006 the expenditure of up to $2500 to cover the preparation and filing of an appellate amicus brief. David R. Pepicelli, was an NRA firearms instructor. He and his brother, Paul, were assaulted by five men, one carrying an unlicensed revolver with an obliterated serial number, who had come to their home to confront a family member about a minor car accident. David believed that he saw several of the men draw handguns and heard a shot fired. He then shot one of the men. Most of the others fled. The one with the revolver stayed and pointed the gun at David and Paul from the cover of a parked car. David and Paul, both licensed to carry concealed firearms in Boston, fired at the man and drove him away. The Boston Police conducted a substandard crime scene investigation. They were unable to locate any trace of the first shot fired by the five men, but were also unable to locate any trace of about a third of the shots known to be fired by David and Paul. David and Paul were arrested for assaulting the five men and for the death of the man David shot. At trial, the trial judge disallowed defense testimony by Thomas Aveni, a former instructor at Smith & Wesson Academy about common standards for self-defense. Paul was convicted of assaulting the man with the revolver using a cane he walked with after surgery. David was convicted of manslaughter of the man he shot. One of the key issues in the appeal is whether the trial court abused its discretion in denying David's expert's testimony. This will be one of the first appellate cases on this issue, which is of importance to every person forced to use a firearm in self-defense. NRA’s amicus curiae brief was filed on November 18, 2006. The court held that expert testimony concerning the reasonableness of the use of firearms by civilians for self-defense in various situations was inadmissible. The admission of expert testimony lies largely in the discretion of the trial judge. The judge did not abuse his discretion. Commonwealth v. Pepicelli, 70 Mass. App. Ct. 87, 872 N.E.2d 1142 (2007).
Raymond Holden (Mass.). He was charged with domestic violence. The charge was dismissed. His license to carry a pistol was suspended. The Worcester District Court ordered it reinstated on March 13, 2006. The chief then refused to reinstate and instead revoked it. Mr. Holden’s second appeal to the district court was also successful. The city appealed to the superior court. On May 21, 2007, the superior court ordered the case remended to the district court for a further hearing. A notice of appal was filed. Mr. Holden’s attorney advised in a November 23, 2007, letter that his brief was filed in the Massachusetts Appeals Court. He argues on appeal that once the district court determined that the police chief abused his discretion, and ordered the license reinstated, and police chief instead revoked the license, and the court again ordered the license reinstated after the police chief was not prepared to present any new grounds or evidence which had not previously been heard, then the rule of claim preclusion applies. Claim preclusion provides that when an issue has been actually litigated and determined by a valid and final judgment, and determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same claim or a different claim.
MICHIGAN
Padraic Alwood (Michigan).
Mr. Alwood is chronically ill and on disability. This case involved a refusal to return firearms seized by the police. Mr. Alwood was charged with felonious assault for defending against the malicious destruction of his property by a man much larger than Mr. Alwood. According to counsel’s letter of August 10, 2005, charges were dismissed against Mr. Alwood. However, the police have an unwritten policy that they will not release firearms unless a court orders that the firearms be returned. A lawsuit was filed in Wayne County Circuit Court on August 9, 2006, against the City of Dearborn and its chief of police. The case was removed to the U.S. District Court for the Eastern District of Michigan. A scheduling conference occurred on November 30, 2006. The court ordered that dispositive motions be filed no later than January 15, 2007. Mr. Alwood’s attorney filed a response to defendants’ motion for summary judgment on February 20, 2007. The court dismissed the federal constitutional claims and remanded the case back to state court on March 26, 2007. On April 26, 2007, the Wayne County Circuit Court ordered the return of Mr. Alwood’s .30/30 caliber Winchester rifle. The rifle was returned on May 17, 2007. Negotiations took place for the return of the 9 mm caliber Beretta pistol. Counsel informed on November 20, 2007, that the pistol was returned in consideration of Mr. Alwood dropping the lawsuit.
MISSOURI
Keith Byron Baranski (Missouri). He was convicted of conspiracy to import machine guns. The conviction was affirmed on appeal. The search warrant in Mr. Baranski's case did not state the things to be seized and no sealed or unsealed affidavit accompanied the warrant. He filed a petition for a writ of certiorari based on the February 24, 2004, Supreme Court decision involving the 4th Amendment's particularity requirement for a search warrant in Groh v. Ramirez, 125 S.Ct. 1284 (2004). The writ was denied. However, the U.S. Court of Appeals for the 6th Circuit on March 14, 2005, in Baranski v. 15 Agents, held that Groh undermines the legal basis for the 8th Circuit’s affirmance of Baranski’s conviction. At the time the 8th Circuit issued its decision it did not have the benefit of the Supreme Court’s Groh decision. Therefore, Mr. Baranski filed for post conviction relief under 28 U.S. Code § 2255. His opening brief in the U.S. Court of Appeals for the 8th Circuit was filed. The government’s brief was filed on May 3, 2007. Mr. Baranski’s reply brief was filed on June 4, 2007. Oral argument took place on September 27, 2007.
Jerry Troyer (Missouri). His .45 caliber Webley Mark VI revolver was recovered by the police from parties unknown to Mr. Troyer. He is eligible to keep and bear arms. However, the police wanted him to acquire a permit to purchase a pistol in order for the police to transfer the revolver back to him. He objected. A replevin petition was filed in the Circuit Court of Phelps County on June 18, 2005, seeking return of his revolver. On October 28, 2005, the Attorney General filed his answer. The state’s position was that Mr. Troyer needs a permit to acquire a pistol prior to obtaining custody of the revolver. The court held a hearing on August 21, 2006. The parties subsequently signed on October 5, 2006, a stipulation for dismissal. Mr. Troyer agreed to drop his lawsuit and the police agreed to return the revolver to Mr. Troyer without requiring that he obtain a pistol acquisition permit. The revolver was returned.
MONTANAFrank Van der hule (Montana). The issue is whether Montana's restoration of rights satisfies the requirements of 18 U.S. Code section 921(a)(20), or is it insufficient based on the holding in Caron v. United States, 118 S.Ct. 2007 (1998), which held a person cannot be convicted under federal law of being a felon in possession of a firearm stemming from a state felony conviction if the state law that removed the disability allows the person to possess all firearms (rifle, shotgun, pistol). On the other hand, a person may be convicted under federal law of being a felon in possession of a firearm stemming from a state felony conviction if state law allows such a person to possess only certain firearms, e.g., rifles and shotguns, but not pistols. In this case, Mr. Van de hule was denied permission to purchase a hunting rifle following a background check. A lawsuit was filed. Plaintiff subsequently filed a motion for summary judgment. The government likewise filed a motion for summary judgment. Mr. Van der hule filed his reply on November 6, 2006. Oral argument occurred on March 23, 2007. The court held on September 21, 2007, that Montana’s refusal to grant a license to carry a pistol to a person whose civil rights have been restored meant that under Caron he could not possess any firearm under federal law. However, there is a possibility that Montana law grants a licensing official discretion to grant the carrying license to such a person. Therefore, the court certified the question to the Montana Supreme Court.
Lone Pine Hunter's Club, Inc. (New Hampshire). This is an effort to shut down a shooting range. New Hampshire has a range protection statute. The club has been operating a shooting range on the property since 1966. The case resulted in two reported decisions. Lone Pine Hunters’ Club v. Town of Hollis, 149 N.H. 668, 826 A.2d 582 (2003), held that evidence was sufficient to uphold finding that the zoning board of adjustment’s finding that, 34 years earlier, it merely decided that hunt club did not need a variance to build a proposed addition, rather than deciding that the club did not need a variance to use the property as a fish and game club. Consequently, under the 1999 zoning ordinance the club’s use of the property could be approved as special exception. The club would have to cease and desist unless the club applied for a special exception and presented a site plan to the planning board depicting the nature of the club’s entire operation. Residents Defending Their Homes v. Lone Pine Hunters’ Club, Inc., 924 A.2d 366 (N.H. 2007), held that the range protection statute only protected a shooting range that was in lawful operation at its inception. The court held the club was not operating lawfully from its inception in 1966. Accordingly, the club must obtain approval from the town, in compliance with the zoning provisions allowing for a special exception as a shooting range.
W JERSEY Association of New Jersey Rifle & Pistol Clubs v. Jersey City (New Jersey). New Jersey requires a permit to purchase in order to receive a pistol from a firearm dealer or private party. Jersey City enacted an ordinance limiting the purchase of a pistol to one per month. The ordinance was successfully challenged in Superior Court on preemption grounds. The order was filed January 2, 2007. Jersey City’s motion for reconsideration was denied on April 13, 2007. Jersey City appealed to the Appellate Division of the Superior Court. The brief of the Association of New Jersey Rifle and Pistol Clubs was filed on October 5, 2007.James Hammer (New Jersey). He is a sergeant in the New Jersey National Guard. His pistol and firearms purchaser identification card were seized based on a domestic violence accusation by his estranged wife. He opted to have the pistol sold and be the beneficiary to the proceeds of the sale. The prosecutor advised him that his consent to the sale would not prohibit him from obtaining a firearms purchaser identification card. On August 25, 2004, the wife’s temporary restraining order against him was dismissed. He subsequently applied for a new card. The card was denied on April 1, 2005. The issue is whether a firearms purchaser identification card can be denied solely because his pistol was not returned to him. An appeal was filed in the New Jersey Superior Court, Appellate Division. The appellant’s brief was filed on July 6, 2005. His reply brief was filed on September 20, 2005. On December 12, 2005, the New Jersey Superior Court, Appellate Division, reversed and remanded the decision of the trial court. The matter was then postponed because he was ordered to active duty. He will be released from active duty on or about July 1, 2007. At that time legal action will be renewed on behalf of Sgt. Hammer.
Daveanand Durga (N.J.). He is an active duty Marine who was temporarily assigned to Bloomfield, New Jersey, as an assistant recruiter. Later he was assigned to Camp Lejeune, North Carolina. He was target practicing in North Carolina with a rifle and a BB gun. He placed his unloaded firearm and BB gun in the trunk of his automobile and drove to New Jersey to visit a cousin. He did not store the firearm and BB gun in the Military Depository because it was closed by the time he completed target shooting and a firearm and BB gun could not be stored in the barracks. The police in New Jersey were combing an area at night for a shots fired call, saw him by his parked car, and asked if he had any firearms. Corporal Durga replied yes. He was arrested on a firearms charge, but the grand jury did not indict him. His arrest record, therefore, was expunged. He asked for the return of his property and was denied. He was also told that he could possess a firearm only with a New Jersey firearm purchaser’s identification car. The authorities presented an out of time order to the court for the confiscation of his property. The court signed it on September 29, 2006. His request for a firearm purchaser’s identification card was also denied. Corporal Durga’s attorney advised in an August 11, 2007, letter that an appeal has been filed with the Appellate Division of the New Jersey Superior Court on the confiscation issue and the denial of a firearm purchaser’s identification card issue. Oral argument occurred on February 27, 2008.
Dennis W. Peterson (N.J.). Mr. Peterson applied for a New Jersey firearms purchaser’s identification card. He was denied because in 2000 a domestic violence complaint was made. He was not convicted. However, he voluntarily surrendered his firearms. Under a New Jersey statute, any person who has failed to have the firearms returned resulting in a domestic violence seizure and forfeiture action is barred from firearms possession until further order of the court. However, this statute took effect after this 200 incident. Counsel for Mr. Peterson argued that he should not be barred from obtaining a firearm purchaser’s identification card. The superior court granted Mr. Peterson’s appeal by way of a February 27, 2007, order and opinion. Counsel advised in an August 11, 2007, letter that the state is appealing to the Appellate Division of the New Jersey Superior Court.
Armando Pioppi (N.J.). Counsel advised in an August 8, 2007, letter that Mr. Pioppi harvested a 15-point white tailed deer with a bow and arrow. The New Jersey Department of Fish and Wildlife seized the deer and accused him of killing the deer by using a means other than a bow and arrow based on an examination of the processed, partial hide, and after acknowledging that the arrow could have killed the deer. The taxidermist supports Mr. Pioppi’s claim that the deer was harvested with an arrow. The case is on appeal to the New Jersey Superior Court from an adverse finding in the municipal court.
Gregg C. Revell & N.J. Rifle and Pistol Clubs, Inc. (N.J.). He is a resident of Utah with a Utah license to carry a pistol. He was transporting his firearm in compliance with the law when he arrived at the airport and declared the firearm as required by law. This is a case where the arrested man's conduct was clearly not criminal under 18 U.S. Code § 926A. Consequently, charges were dismissed. However, his property has not been returned and he needlessly spent time in jail. A civil rights action was filed, under 42 U.S. Code § 1983, in the United States District Court for the District of New Jersey on January 27, 2006. Discovery is proceeding. The court issued an order that all dispositive motions must be filed no later than March 14, 2008.
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Anthony Rusciano (New York). New York City arrested him after he was stopped for a seat belt violation. Westchester County reinstated his pistol license. On the other hand, New York City canceled his pistol license. He appealed. An administrative hearing was held in which the administrative law judge recommended that his New York City pistol license be restored. Nevertheless, the New York Police Department’s Director of Licensing arbitrarily and capriciously ordered the pistol license to be canceled. Mr. Rusciano’s attorney filed an appeal by way of an Article 78 proceeding and ultimately settled the case with the city. His New York City license was reinstated on October 31, 2006, as a result of the settlement.
David Beach (New York). New York City mostly issues a premises pistol permit. In 2001 New York City eradicated all target permits. However, New York City promulgated rules that allow the holder of a premises pistol permit to go to a shooting range for the purpose of keeping "proficient" with a pistol. At the time of renewal David Beach was denied a pistol permit because he took his pistol under a premises permit to Nevada for target shooting. He also has a permit to carry concealed in Nevada. He won his appeal in the New York Supreme Court. Justice Jane S. Solomon ruled on May 22, 2007, that a premises permit is a hybrid permit that allows keeping a pistol at one's premises and also allows target shooting and hunting. The city is planning an appeal to the Appellate Division of the N.Y. Supreme Court.
Manuel Rodriguez a/k/a Arthur Rodriguez (New York). He is a Pennsylvania Constable. Under Pennsylvania law he is authorized to carry a pistol without the need for a Pennsylvania license to carry a pistol. He was in New York City to execute a Pennsylvania warrant for an offense. He was parked in a Ford Crown Victoria equipped with police lights and it looked like an unmarked police car. New York City police questioned him about his identification and his occupation. They ignored his status as a police officer and ignored that he was executing a warrant. He was arrested for criminal possession of a pistol in the third degree, a felony. On November 3, 2006, Justice Ronald A. Zweibel of the New York Supreme Court, County of New York, held that Constable Rodriguez is a peace officer under Pennsylvania law and he is also a peace officer under New York Penal Law 265.20, which exempts out of state peace officers from needing a New York pistol license while performing their official duties in New York. Justice Zweibel further held that the Law Enforcement Officers Safety Act of 2004, 18 U.S. Code 926B, applied to him. Accordingly, the court granted the defense motion to dismiss the indictment. The court also ordered Constable Rodriguez's property, including his pistol, to be returned forthwith.
John Torraco (New York). He is a law professor who moved from New Jersey to Florida. Congress enacted a safe harbor provision for people who are traveling interstate with firearms: 18 U.S. Code § 926A. He declared his unloaded and encased pistol at the airport in New York City while boarding a flight to Florida. The transportation of the pistol was in compliance with 18 U.S. Code § 926A. Nevertheless, he was arrested by a detective. He pointed out to the detective the federal law. The detective cursed and said he did not care about federal law because this is New York. The court dismissed charges against him on April 6, 2005. He filed a lawsuit in U. S. District Court for the Eastern District of New York. The defendants, including the Port Authority of New York and New Jersey, filed their answer to his complaint on January 20, 2006. On March 14, 2006, U.S. Magistrate Cheryl L. Pollak issued an order setting a discovery schedule, with depositions to be completed by end of June, and setting a conference for July 11, 2006.
Casperkill Game Club (New York). The club has been in existence since 1948. It has two firing ranges on the 550 acres property. The Zoning Board of Appeals determined that the club’s current use as a shooting range one part of the property violates the Town of Clinton’s zoning laws because it constituted an expansion of the prior permitted non-conforming use and that the expansion was illegal. The other area of the property has a shooting range that is legal and authorized by the town’s zoning code. The club can possibly remedy the violation. However, the town also charged the club with a criminal complaint for violating the zoning law by having a shooting range. The club filed a motion to dismiss. It filed a reply affirmation on August 3, 2004, in the Clinton Justice Court of Dutchess County. Counsel advised on February 21, 2007, that the Town of Clinton is attempting to negotiate a settlement with the club which would involve the town amending their zoning law to allow the club to continue using the existing firing ranges. Meanwhile the court case is still pending and continues to be adjourned by the town in anticipation of the amendment to the zoning law. Counsel informed on August 17, 2007, that in the meantime the club continues to operate.
Northern Dutchess Rod and Gun Club
(New York). This is an effort to shut down a 342 acre shooting range. The town zoning board found on December 17, 2003, that the current shooting facility is non-conforming. An appeal was filed by the club in the Dutchess County Supreme Court. The court ruled in the club’s favor on May 13, 2004. The disgruntled neighbors of the club and the town would continue with plans to file an appeal with the Appellate Division of the Supreme Court.” An appeal was filed. The Northern Dutchess Rod and Gun Club filed its brief on March 22, 2005. Oral argument occurred on October 17, 2005. The court remitted the matter to the zoning board of appeals so that it may properly consider whether the zoning enforcement officer correctly determined that the road that bisected the club’s property was not a property boundary. The town code provides that no target range shall be located closer than 500 feet from any property boundary. If the road is a property boundary, and thus 300 feet from the trap shooting facility, a variance would be required from the 500 feet limitation. Northern Dutchess Rod and Gun Club, Inc. v. Town of Rhinebeck, 29 A.D.3d 587, 814 N.Y.S.2d 691 (2006). Counsel for the club informed in a February 21, 2007, letter that the Town Planning Board approved the club’s application for new lighting and retroactively approved an utility building-range observation platform. Nothing in the club’s physical condition or existing operation has been changed by the outcome of the lawsuit.
Matt
Weisner (New York). Mr. Weasner, an honorably discharged veteran, was in New Jersey waiting to ship out to Iraq as a civilian contractor. He was arrested at the MacArthur airport on Long Island, New York, while attempting to check a bag with a legal unloaded handgun. He was traveling legally under 18 U.S. Code § 926A with a firearm. He was traveling on an emergency ticket back home to Ohio as his grandmother was on her deathbed. Sadly, she passed away the night he was in jail waiting for a bail hearing. His attorney negotiated a pre-trial probation with no admission of guilt that expired on April 28, 2005 After additional struggle with local authorities, his gun was returned to him. Mr. Weasner filed a civil suit for damages incurred because of his arrest. The case is in its early stages. The defendants filed an answer to an amended complaint on April 3, 2006. The scheduling order requires that discovery be concluded by November 3, 2006.
William Winstanley (New York). He is a 62 year old court reporter and lifelong resident of New York, was booked on an April 4, 2005, Jet Blue flight from JFK to Phoenix. Upon arrival he declared his firearms, for which he had a valid New York permit. The firearms were packed according to FAA guidelines. He was asked by Port Authority officers if he had “proper documentation” to carry in Arizona. He replied that was not necessary in that state. They denied him boarding. He asked to speak to a supervisor, who agreed he did not need any paperwork for Arizona. By that time the plane had gone. The next day the Port Authority officer inspecting the bag informed Mr. Winstanley he needed “a locked hard side case within a locked hard sided case.” When Mr. Winstanley told him that was not FAA regulations, the officer informed him he had been doing this 10 years and that is the way it was. Again, he was denied boarding. Mr. Winstanley returned the next day with two hard sided cases. On his third attempt to get on the same flight, was told he needed an FFL to transport handguns across state lines. Again he was denied boarding. He asked for a supervisor, who agreed with him again, but by that time the plane had left. On the fourth day, the officer let him board, after asking him repeatedly if he was traveling with ammo, because “That’s a felony, traveling with ammo!” Mr. Winstanley, who apparently has the patience of Job himself, did not have ammo and finally made his trip to Phoenix, four days later than scheduled. His case has been consolidated with that of John Torraco and should be filed by January 2006 according to information provided on November 21, 2005. He filed a lawsuit in U. S. District Court for the Eastern District of New York. The defendants, including the Port Authority of New York and New Jersey, filed their answer to his complaint on January 20, 2006. The case remains in discovery.
New York City v. Beretta et al. (New York).Gun prohibitionists filed a number of frivolous lawsuits to bankrupt the firearm industry, distributors, and dealers in an effort to ban the sale to and purchase of firearms by civilians. This implicates the right to keep arms, as eloquently stated in Andrews v. State, 50 Tenn. 165, 178, 8 Am. Rep. 8, 13 (1871), which held: "The right to keep arms necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair." Congress enacted the Protection of Lawful Commerce in Arms Act in 2005 to ban such lawsuits. A U.S. District Court in New York City promptly held that this act did not apply to the lawsuit before the court: City of New York v. Beretta, 401 F. Supp.2d 244 (E.D.N.Y. 2005). That case is on appeal to the U.S. Court of Appeals for the 2nd Circuit. The law firm of Goodwin Procter of Boston, New York, and Washington, D.C., agreed to represent the fund pro bono and prepare and file an amicus curiae brief on behalf of the fund. The brief was filed May 15, 2006. Gun prohibition organizations also filed amicus curiae briefs. Oral argument occurred on September 21, 2007.
Charles Barzydlo, Lawrence Oberhofer, Richard DePietro (New York).The three men are active or retired police officers with the Port Authority of New York and New Jersey. The Port Authority has seized their personal firearms and refuses to return them. Counsel informed in an August 11, 2007, letter that a lawsuit will be filed if the demand for return of property is not honored. Brian P. LiVecchi (North Carolina). Brian P. LiVecchi is a police officer and a 2nd Lt. in the North Carolina Army National Guard. He has a 5-year old son. His divorcing wife got a lame duck judge to issue an order that forbids Officer LiVecchi from possessing a firearm, killing an animal, or exposing the son to a dead animal when the son is with him. The judge's order, taken literally, would prevent the boy from seeing a dead chicken before it is placed in the oven. Her bias surfaces in the order. The order of the court mentions Officer LiVecchi's disregard for the creatures of the earth. Officer LiVecchi once killed a copper head when he was with his son. The public policy of North Carolina favors the right to keep and bear arms and favors hunting. The judge's order is overly broad and will be appealed. His counsel informed in a February 6, 2007, letter that the appellate process takes anywhere from 12 to 18 months.
Challenges to Ohio Right to Carry. Ohioans for Concealed Carry filed a challenge to a local City of Clyde ordinance that forbids the carrying of a firearm in a park even with a concealed carrying license. They argued that the local law conflicted with Ohio Revised Code § 9.68, the state preemption statute. The Ohio Court of Appeals agreed that the statute preempts the local ordinance and thus the local ordinance cannot be enforced. Ohioans for Concealed Carry, Inc. v. City of Clyde, 2007 WL 1098347 (Ohio App. April 13, 2007). On September 26, 2007, the Ohio Supreme Court agreed to review the case.
KLAHOMAKenneth Ray Gumm (Oklahoma). Mr. Gumm’s attorney informed in letters of September 28, 2007, and January 14, 2008, that his client is facing a first degree manslaughter charge. The police did not arrest Mr. Gumm because they viewed it as a case of self-defense. The prosecutor, however, chose to file manslaughter charges. The issue is self-defense by a 67-year old man, with health problems, against a younger and bigger man. The deceased was 47 years old and had a blood alcohol level of 0.8, which means legally too drunk to drive, and had methamphetamine in his system, too. Mr. Gumm was pursued by the aggressor, the aggressor blocked Mr. Gumm’s car with his car, and Mr. Gumm retreated around his car at least two times before being forced to shoot to defend himself.
Weyerhaeuser Co. Employment Termination Cases (Oklahoma). The cases were filed in U.S. District Court in Oklahoma. The employees and contractor were terminated for possessing firearms in a parking lot. Search and seizure based on state action, lack of notice, and public policy issues are among the issues raised. The state enacted a remedial statute. A U.S. District Court granted a temporary restraining order against its enforcement. It also requested state court to advise whether the remedial statute was civil or criminal. On March 28, 2005, the Oklahoma Court of Criminal Appeals ruled the law prohibiting employers from banning guns in locked vehicles on company property was criminal, rather than civil. On March 28, 2005, the U.S. District Court granted defendant Weyerhaeuser’s motion for summary judgment and dismissed the lawsuit. An appeal was filed in the U.S. Court of Appeals for the 10th Circuit. NRA filed an amicus curiae brief. The court held on February 13, 2006, that the remedial legislation was prospective in application only and upheld the judgement of the U.S. District Court denying relief: Bastible v. Weyerhaeuser Co., 437 F.3d 999. In a companion case challenging the validity of remedial legislation, on August 3, 2005, the United States District Court for the Northern District of Oklahoma granted the NRA's motion for leave to file an amicus curiae brief in ConocoPhillips Company v. Henry, et al. On May 16, 2007, the court ordered additional briefing on limited issues related to the question of whether the challenged Oklahoma laws are preempted by federal law. ConocoPhillips Company v. Henry, U. S. District Court for the Northern District of Oklahoma on October 4, 2007, granted in part and denied in part the motions for permanent injunction. In summary, the Court concluded: (1) the Amendments do not result in an unconstitutional taking of Plaintiffs’ private property rights or an unconstitutional deprivation of a “fundamental right”; (2) Plaintiffs lack standing to assert a facial vagueness challenge; and (3) the Amendments are preempted as in conflict with the OSH Act. The Court enjoins enforcement of the challenged laws against Plaintiffs and all employers subject to the OSH Act. The Court concluded the Amendments conflict with and are preempted by the OSH Act, which requires employers to abate hazards in their workplaces that could lead to death or serious bodily harm and which encourages employers to prevent gun-related workplace injuries. The Amendments criminally prohibit an effective method of reducing gun-related workplace injuries and cannot coexist with federal obligations and objectives. The Amendments are therefore enjoined to the extent they are preempted by the OSH Act. A notice of appeal was filed by the State of Oklahoma on November 2, 2007. The case was appealed to the U.S. Court of Appeals for the 10th Circuit. The NRA filed in the court an amicus curiae brief on January 30, 2008.
Myrtle Point Sportsmen's Club (Oregon). This case involves a shooting range. The attorney for the range informed that because Oregon has a range protection law, the complainants are alleging trespass and private and public nuisance. The range has been operating in that location since 1949. There is no evidence of trespass by bullets or pellets. The lawsuit was filed in circuit court, Coos County, on May 12, 2005, naming the club as the defendant. The club filed its answer on July 1, 2005. On March 15, 2006, the court denied plaintiffs’ request for declaratory and injunctive relief against the club. The plaintiffs appealed to the Oregon Court of Appeals. The club filed its brief on January 18, 2007. The court affirmed the trial court’s decision on July 23, 2007.
Douglas Ridge Rifle Club (Oregon). Counsel informed in a November 30, 2007, letter that this is effort to shut down a shooting range by using federal environmental laws, parallel Oregon laws, and a state public nuisance claim. The lawsuit is pending in the United States District Court, District of Oregon. It was filed by a former member of the club.
PENNSYLVANIA
Michael Stollenwerk (Pennsylvania). Mr. Stollenwerk applied for a permit to carry a pistol concealed. He already has a permit from a sister state. He declined to supply his social security number. An attorney’s letter of November 4, 2003, and December 12, 2003, opines that Section 7 of the Federal Privacy Act, 5 U.S. Code § 552a, reveals there is no legal mandate to require a social security number for this purpose. The sheriff denied his application in a letter dated December 1, 2003. A hearing on his denial occurred on April 27, 2004, in the Lancaster County Court of Common Pleas. The case was removed to the U.S. District Court for the Eastern District of Pennsylvania on November 24, 2004. On March 24, 2005, the U.S. District Court denied the defense motion to dismiss. Mr. Stollenwerk, the plaintiff, was given leave to amend his complaint after discovery is concluded. Defendant filed his motion for summary judgment on September 23, 2005. Mr. Stollenwerk’s cross motion for summary judgment was filed on October 14, 2005. His consolidated reply brief was filed on November 28, 2005. The court ruled on February 24, 2006, that Pennsylvania cannot require social security numbers from those purchasing firearms or obtaining a permit to carry a pistol. The court ordered that “Defendants shall inform applicants the disclosure of a Social Security number is voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.” Stollenwerk v. Miller, 2006 WL 463393 (E.D. Pa. Feb. 24, 2006). The state police were initially going to the appeal to the U.S. Court of Appeals for the 3rd Circuit. That appeal was dropped after the court issued a modified order on February 8, 2007.
Swamp Creek Rod and Gun Club (Pennsylvania).This case was a dispute involving the use of a shooting range. Lower Frederick Township passed an ordinance that affected the club. The parties resolved the dispute. On October 3, 2006, the club and the township reached a written agreement. The club agreed to comply with recommendations from a NRA Range Technical Team Advisor and agreed to an annual inspection by the township. The township, in turn, agreed to refrain from implementing the provisions of the ordinance against the club. Counsel’s letter of December 13, 2006, advised that the club has received approvals from the township.
Dale V. Kramer, Jr. (Pennsylvania). This was an effort to remove the firearm disabilities imposed by a mental commitment as a 16-year old minor in 1992. The judge in the orphans' court denied relief on June 2, 2006. The order was appealed to the Pennsylvania Superior Court, an intermediate appellate court. Mr. Kramer’s brief was filed on January 2, 2007. Oral argument occurred on July 10, 2007. In an unpublished opinion the court held on December 31, 2007, that a prognosis from the expert witness was a requirement even though the statute did not have a requirement that a prognosis be presented. The court held to demonstrate fitness to possess a firearm the future must necessarily be considered as the statute is designed to protect against any occurrences, present or future, as the statute is both preventative and protective in nature. The court held that an affidavit from the expert witness on prognosis was not properly admitted into evidence so that it could not be considered in the determination of the issue raised.
Trader World, Inc. and Woody’s Pawn Shop (South Carolina) On May 15, 2006, the City of New York filed a lawsuit in the United States District Court for the Eastern District of New York against 5 separate proprietors of a firearm dealership and against 15 separate firearm dealers. The presiding judge is Jack B. Weinstein, who has a history of being assigned cases that creatively seek to put firearm manufacturers, distributors, and dealers out of business through litigation. All of the defendants are located outside of New York and do not do business in New York. Basically, the city alleges that the defendants negligently or intentionally sell handguns to prohibited persons through “strawman” purchases. It is alleged that these handguns are eventually transported to New and are recovered in connection with a variety of violent crimes. The city wants an injunction directing defendants to cease selling handguns illegally, damages for abating the nuisance, compensatory damages proximately caused by defendants’ creation and maintenance of a nuisance, and punitive damages intended to deter these and other firearm dealers from engaging in these unlawful practices. None of the defendants is charged with a crime.
Flint Springs Sporting Clays (Tennessee). This case involves an effort to shut down a range by revoking a permit. The issue is whether Tennessee’s range protection act places limits on the authority of a planning department, zoning department, or other governmental agency to restrict or terminate the scope of use of a sport shooting range. The sporting clays range was issued a use permit without material restrictions in April 2003. The range protection act was enacted in 2004. According to a May 5, 2006, letter from counsel, two lengthy hearings occurred before the Bradley County Planning Commission. The commission revoked a use permit. An appeal was taken to the Chancery Court of Bradley County. The court on July 5, 2007, issued an order. It held the Range Protection Act of 2004 applies. It further held that the commission is prohibited from retroactively changing what it deems material elements and use those to revoke a previously legally obtained permit. A governing body cannot change the standard by which review was made for land use after the use of the land has been undertaken. This would be violative of due process.
Top Brass Sports, Inc. (Tennessee). This case involves an administrative revocation of a federal firearms license. Top Brass Sports has been in business since 1985. It was inspected previously without any problems. In July 2003 BATF conducted an inspection that spanned 3 days. BATF subsequently instituted license revocation proceedings. The issue is whether the errors were willful as opposed to inadvertent. A de novo judicial appeal has been filed from the administrative revocation in U.S. District Court. The government filed a motion for summary judgment on September 6, 2007. Top Brass Sports filed a reply brief on November 13, 2007. On November 14, 2007, the court denied the government’s motion for leave to file a rebuttal brief. Counsel’s letter of February 25, 2008, informs that Top Brass Sports is waiting for a ruling from the court.
Hale Mountain Fish and Game Club, Inc. (Vermont). This is an effort to shut down a shooting range by attacking it with five lawsuits in state and federal court. The claims include nuisance and environmental law. Some claims are facially nonsensical. The lawsuit also claims that the Vermont shooting range protection law is unconstitutional. The Act 250 matter, which is the Vermont land use statute, was heard before the environmental board. The board held that the club’s shooting activities did not violate the environmental statute. The club’s neighbors appealed to the Vermont Supreme Court from the favorable Act 250 finding. The court on September 13, 2007, reversed and remanded. The court required the Environmental Board to make findings on whether the various improvements and changes at the club since the 1970 enactment of the land use statute had resulted in an increased intensity of use and increased noise levels. A separate nuisance case that attacks the constitutionality of the range protection law is pending. A claim that the club is in violation of zoning law is scheduled to be tried during the week of April 7, 2008, before the Vermont Environmental Court.
John Kestler (Virginia) His pistol and rifle were seized from his home in Fairfax County. The firearms are valued at between $2,400 and $5,000. The firearms were destroyed without giving proper notice or an opportunity for a hearing. A civil rights lawsuit was filed. The defendants removed the lawsuit to federal court on August 16, 2007. His attorney informed in a letter of December 10, 2007, that the case was settled for $5,000. Jeffrey Raynor (Virginia) He was charged with carrying a concealed pistol and possessing a firearm on a military installation. Neither charge was supported by the statutory language. The government’s evidence was that the grip, hammer, and the back part of the slide were visible and that it was immediately recognizable as a pistol. The evidence also showed that he was traveling in a motor vehicle on a road and was not in “a building or part thereof owned or leased by the Federal Government....” He was found not guilty of both charges according to defense counsel’s letter of April 17, 2006. Dennis Alverson and Old Dominion Guns and Tackle, Inc., Patriot Services, Inc., and Webb’s Sporting Goods (Virginia) On May 15, 2006, the City of New York filed a lawsuit in the United States District Court for the Eastern District of New York against 5 separate proprietors of a firearm dealership and against 15 separate firearm dealers. The presiding judge is Jack B. Weinstein, who has a history of being assigned cases that creatively seek to put firearm manufacturers, distributors, and dealers out of business through litigation. All of the defendants are located outside of New York and do not do business in New York. Basically, the city alleges that the defendants negligently or intentionally sell handguns to prohibited persons through “strawman” purchases. It is alleged that these handguns are eventually transported to New and are recovered in connection with a variety of violent crimes. The city wants an injunction directing defendants to cease selling handguns illegally, damages for abating the nuisance, compensatory damages proximately caused by defendants’ creation and maintenance of a nuisance, and punitive damages intended to deter these and other firearm dealers from engaging in these unlawful practices. None of the defendants is charged with a crime.Allan Broughman (Virginia). He is a custom gunsmith in Covington, Virginia. His speciality is customizing rifles. His advertisement guarantees accuracy, namely, groups of one inch or less at 100 yards with his customized rifles. BATF considers this to be firearm manufacturing and thus requiring a manufacturer’s license. Counsel informed on January 4, 2008, that this BATF position will be challenged in court because customizing firearms is not the same as manufacturing firearms.
Pacific Northwest Shooting Park Association (Washington). The nonprofit association organized a gun show as a fund raiser. The City of Sequim imposed requirements that are a violation of state law and without the authority of a city ordinance. A lawsuit was filed. A hearing on defendants motion for summary judgment occurred on May 16, 2003. Relief was denied. The case was appealed. Oral argument occurred before the Washington Supreme Court on September 27, 2005. On October 12, 2006, the court held in a 6 to 3 opinion that the question of interference with Pacific Northwest Shooting Park Association's contractual relationships or business expectancies with vendors and the general public is not properly before the court and the court did not decide the question. The court also held that the city did not violate either Washington Revised Code 9.41.290 or .300, which is the firearm preemption statute. The dissent wrote "Curiously, the majority concludes RCW 9.41.300, which explicitly and specifically prohibits municipalities from regulating gun shows on municipal property, permits municipalities to regulate gun shows on municipal property. The statute is neither ambiguous nor unclear." The dissent also stated that the preemption “statute means what it says. City of Sequim lacked authority to regulate PSNPA’s gun show .... Only the majority’s linguistic somersaults make it mean the opposite of what it says.” Pacific Northwest Shooting Park Association v. City of Sequim, 2006 WL 2938852 (Wash.).
Gig Harbor Sportsman's Club (Washington). This is an effort to shut down a shooting range through regulation. The club filed on March 12, 2003, in Pierce County superior court a petition for declaratory judgment. The petition requested that the ordinance be declared void and invalid as contrary to state law. The court granted partial summary judgment directed only at the hours of operation. Thus, the hours of operation provision of the ordinance is currently void and unenforceable. The city filed in the court of appeals a motion for discretionary review. The club filed its response on January 5, 2004. A letter from the club’s attorney of May 13, 2005, advised that litigation has been in abeyance pending a planned relocation of the club. The attorney advised on February 27, 2007, that the club will know in 6 months whether the relocation to a more favorable county will be accomplished or whether they will continue with the lawsuit.
WEST VIRGINIAJulian R. Arbaugh (West Virginia). He has a marijuana conviction from a decade ago. He successfully completed probation. West Virginia has a provision to restore the civil right to keep and bear arms. The circuit court judge is willing to do this. The prosecutor has no objection. Furthermore, 18 U.S. Code § 921(a)(20) reads: "The term "crime punishable by imprisonment for a term exceeding one year" does not include-- (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less. What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." However, some federal courts have required that a state restoration of rights include jury service. In other words, just restoring the right to keep and bear arms, right to vote, and right to hold public office is not enough. Therefore, the circuit court judge will certify the question of whether the circuit court has the power to restore the right to jury service to the West Virginia Supreme Court. The certified question was filed in the West Virginia Supreme Court. The brief supporting the petition was filed on January 17, 2007. The West Virginia Supreme Court issued an order declining to review the certified question on March 15, 2007.
Scott K. Fisher (Wisconsin). The NRA filed an amicus curiae brief in the Wisconsin Supreme Court. This tavern owner was charged with carrying a concealed pistol. The Jackson County Circuit Court, Judge John A. Damon, presiding, dismissed complaint on grounds that concealed carry statute was unconstitutional as applied. The State appealed. On certification from the Wisconsin Court of Appeals, the Wisconsin Supreme Court, with three justices dissenting, held that: (1) only in extraordinary circumstances will carrying a concealed weapon in a vehicle find protection under constitutional right to keep and bear arms, and (2) defendant's carrying a concealed weapon in his vehicle did not violate defendant's right to keep and bear arms for security. The court reversed and remanded by a vote of 4 to 3. State v. Fisher, 290 Wis.2d 121, 714 N.W.2d 495 (2006). Mr. Fisher elected to be tried by a jury. The trial ended in a hung jury, with 11 jurors voting for not guilty. He was not retried. The prosecution dismissed charges on April 17, 2007.
Central St. Croix Rod and Gun Club (Wisconsin).
The range has been in existence since the 1950s. Plaintiffs are a group of businessmen who now live in rural Wisconsin who do not like the sound of gun fire. Plaintiffs attempted to get the Town Board and County Board to get the range shut down for noise. The range protection act prevented this. The plaintiffs switched tactics and decided to sue for nuisance and trespass. The complaint was filed on May 12, 2006. Counsel for the club advised on January 31, 2007, the court battle will continue. The club attempted to settle the matter by bringing the range up to NRA standards and it was rejected because there was not a 100% guarantee all of the projectiles would be contained on the premises as someone could still shoot in the air.
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