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CALIFORNIA

Altman v. Santa Clara.

In response to the COVID-19 outbreak, four counties in northern California (Santa Clara, San Mateo, Contra Costa, and Alameda) issued orders closing down all non-essential business, which included gun shops. NRA (along with SAF and FPC) filed this lawsuit challenging the closure under the Second Amendment and Due Process Clause.

The applicants' motion for a preliminary injunction was denied. Three of the counties repealed their orders, but Alameda County kept its order in place.

The defendants filed a motion to dismiss. On November 30, 2020, the Court ruled that the applicant's Second Amendment claim against Alameda County could proceed and dismissed the claims against the other counties.

Brandy v. Villanueva.

In response to the COVID-19 outbreak, California and Los Angeles County issued an order closing down all non-essential business, which included gun shops. NRA (along with SAF and FPC) filed this lawsuit challenging the closure under the Second Amendment and Due Process Clause.

The applicants' motion for a preliminary injunction was denied.  The defendant filed a motion for judgment on the pleadings, which the court granted on October 20, 2020. The applicants are in the process of appealing.

Duncan, et al, v. Becerra.

This case was filed in May 2017, in response to both a state bill and Proposition 63 which placed a ban on the possession of magazines that have a capacity of more than ten (10) rounds.  The lawsuit challenges California's regulatory scheme against standard capacity magazines on the grounds that it violates the Second Amendment, Due Process Clause, and Takings Clause of the United States Constitution.

The court granted the plaintiffs' motion for a preliminary injunction on June 29, 2017, issuing an order staying enforcement of the possession ban while the case is being litigated.  The State appealed the preliminary injunction order to the Ninth Circuit, but the District Court rejected the State's request to stay the case pending appeal.  Briefing of the appeal was completed and oral argument was heard on May 14, 2018.  On July 17, 2018, the Ninth Circuit affirmed the temporary injunction order.

In the District Court, plaintiffs filed a motion for summary judgment, which was argued on May 10, 2018.  On March 29, 2019, the District Court issued a ruling in favor of the plaintiffs and permanently enjoined the California magazine ban.

California appealed to the United States Circuit Court for the Ninth Circuit.  The case was fully briefed and oral arguments were held on April 2, 2020.  On August 14, 2020, a panel of the United States Court of Appeals for the Ninth Circuit, applying the strict scrutiny standard to the ten round magazine ban, affirmed the District Court's grant of summary judgment in favor of the applicants. California sought en banc review.  The applicants filed their opposition on September 18, 2020.  The parties are awaiting a decision from the Court.

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

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

The State and Sheriff both filed motions to dismiss the claims concerning concealed (but not open) carry and the Equal Protection claims.  Oppositions to the motions were filed.  The Court granted the motions to dismiss in light of Peruta. The case continued, but only the Second Amendment open carry claims were considered by the lower court.  Both parties filed motions for summary judgment, which were argued on November 6, 2017.  The Court ordered supplemental summary judgment briefs on November 6, 2017.  Those briefs were filed on November 13, 2017.

 

In May of 2018, the District Court granted the State's motion for summary judgment. Plaintiffs appealed the case to the United States Court of Appeals for the Ninth Circuit.  The case was petitioned for en banc review.  It was then stayed pending the Young v. Hawaii appeal, which case is stayed pending a decision in the New York State Rifle and Pistol Association, et al v. City of New York, et al. case.

Gurbir S. Grewal and Paul R. Rodríguez v. James Tromblee, Jr. d/b/a U.S. Patriot Armory, Jane and John Does 1-20, and XYZ Corporations 1-20.

The applicant's attorney informs as follows:

The applicant is a small business owner in California who sells firearms related parts and accessories.  Amongst other firearms related goods, the applicant advertises and sells 80% receivers, as well as parts kits which enable a purchaser to finish the 80% receiver into an unserialized firearm.  These parts kits are legal to purchase and sell under federal law, and in all 50 states.  New Jersey is the only state that prohibits the manufacture of a firearm for personal use without a manufacturing license.  However, the applicable law does not regulate the sale of 80% receivers.

The New Jersey Attorney General filed a lawsuit against the applicant alleging that the applicant violated the New Jersey Consumer Fraud Act.  The New Jersey Attorney General alleges that the failure to disclose the following constituted consumer fraud:

(1) that it is unlawful in New Jersey to purchase an 80% Receiver with the purpose of finishing it into a completed firearm and (2) that it is unlawful to assemble the receiver into a configuration that would violate New Jersey's 'assault firearms' law.

The applicant recently filed a motion to dismiss the complaint for failure to state a claim.  "In an oral opinion, the Court expressed concern over the breadth of the theory of the case (and also that the AG appeared to be proceeding purely vindictively against a defendant that had already agreed to cease all sales to New Jersey) but denied the motion without prejudice in order to permit discovery."

The parties have agreed to the terms of a settlement and in the process of finalizing a written settlement agreement.

 

Mateel Environmental Justice Foundation v. Ukiah Rifle and Pistol Club, Inc.

The applicant's attorneys inform as follows:

The applicant, Ukiah Rifle and Pistol Club, founded in 1945, is a members-only nonprofit corporation located in Ukiah, California.  It provides shooting range facilities and services for both law enforcement and the local community on land owned by the City of Ukiah.

In 2018, two lawsuits were filed against the applicant.

On February 20, 2018, the Mateel Environment Justice Foundation filed a civil suit against the applicant seeking injunctive relief and civil penalties for violations of California's Proposition 65, alleging lead contamination in the California Superior Court for the County of Mendocino.

One legal issue presented in the case is whether a nonprofit private club is subject to California's Proposition 65, also known as the Safe Drinking Water and Toxic Environment Act of 1986.  This act regulates businesses with ten (10) or more employees.  The applicant has no employees and operates with an all-volunteer staff.  Another legal issue that has arisen in discovery is whether the plaintiff can obtain the applicant's membership list or whether the freedom of association and right to privacy protect against such disclosure.

Separately, Vichy Springs Resort, Inc., and its owner Gilbert Ashoff, have sued the applicant alleging that the applicant has allowed the release and/or discharge of lead from the premises, contaminating neighboring properties and nearby waterways.  The plaintiffs allege that the applicant built a new range sound wall without predetermining the potential environmental impact of the additions, and that said construction invalidates the County's prior determination that the use of the land as a shooting range was a legal non-conforming use.

The applicant prevailed on a motion for summary judgment against Mateel Environmental Justice Foundation in the Mendocino County Superior Court "urging the court to dismiss Mateel's action in its entirety because URPC is not subject to the requirements and restrictions of California's Proposition 65."  On September 25, 2019, the court granted the motion and dismissed the lawsuit.

The trial court granted Ukiah Rifle and Pistol Club's ("URPC") motion for summary judgment on the grounds that Mateel Environmental Justice Foundation ("Mateel") cannot establish the requisite fact that URPC is governed by the mandates of Proposition 65 with regards to the discharge of certain restricted materials. Specifically, the trial court found that Mateel failed to prove that URPC is a "person in the course of doing business" as defined by Proposition 65 because URPC does not employ ten or more employees.

Mateel Environmental Justice Foundation filed a notice of appeal on November 21, 2019.  The case is now in the initial stages of briefing before the California Court of Appeal for the First District.

 

Rhode, et al. v. Becerra.

California enacted ammunition sales restrictions, including requirements that all sales be conducted via face-to-face transactions, all ammunition sales be recorded with California's Department of Justice, and purchasers undergo a background check.

On April 26, 2018, a lawsuit was filed in the United States District Court for the Southern District of California challenging these restrictions on Second Amendment, Commerce Clause, Equal Protection Clause, and federal preemption grounds.

California brought a motion to dismiss the Commerce Clause, Equal Protection, and federal preemption claims; but not the Second Amendment claim.  In June of 2018, the trial judge denied California's motion to dismiss on all but the Equal Protection claim.  An appeal was filed in the United States Court of Appeals for the Ninth Circuit.

On July 22, 2019, the plaintiffs filed a preliminary injunction motion.  In April of 2020, the United States District Court for the Southern District of California granted the preliminary injunction, prohibiting California from enforcing this restriction.  California appealed to the United States Court of Appeals for the Ninth Circuit.  That Court stayed the injunction pending the appeal.

The case was briefed and argued before the United States Circuit Court for the Ninth Circuit on November 9, 2020.  On November 16, 2020, the court requested supplemental briefing.

 

Rupp, et al. v. Becerra.

California prohibits the manufacture, possession, sale, transfer, or import of "assault weapons" within the state. In 2016, the law was expanded to include firearms whose magazines were detached by a "bullet button."

In April of 2017, the plaintiffs filed a lawsuit in the United States District Court for the Central District of California, challenging this prohibition under the Second Amendment, Due Process Clause, and Takings Clause.

Summary judgment motions were filed by March 25, 2019 and a hearing occurred on May 31, 2019.  On July 22, 2019, the United States District Court granted California's motion for summary judgment, holding that "assault weapons" were outside the scope of the Second Amendment and upholding the statute.

The plaintiffs' appealed to the United States Court of Appeals for the Ninth Circuit.  Oral argument occurred on October 8, 2020.

 

Rupp, et al. v. Becerra. National African American Gun Association, Inc. Amicus Curiae Brief.

Please see case description above.

The amicus curiae brief was filed on January 31, 2020.

 

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COLORADO

Chambers, et al. v. City of Boulder.

The City of Boulder enacted an ordinance which prohibits the possession of "assault weapons" by citizens unless they obtain approval from municipal authorities through a certification process. The ordinance also prohibits "large-capacity magazines" that hold more than ten rounds of ammunition. The ordinance also raises the age of majority for purchasing and possessing firearms to twenty-one years of age.

Colorado has enacted preemption. A municipal ordinance that regulates firearms ownership and possession and conflicts with state law is preempted and may not be enforced.

On June 14, 2018, a lawsuit was filed challenging the ordinance on state-law preemption grounds. Boulder's ordinance conflicts with controlling Colorado state law on several material points because, under Colorado law, the possession of "assault weapons" is legal, "large-capacity magazines" are defined as those which hold more than fifteen rounds of ammunition, and the age of majority for purchasing and possessing firearms is eighteen years of age.

On June 19, 2018, the Boulder Ordinance was amended to remove an exemption from the ordinance for handgun magazines that are legal under state law, further exacerbating the conflict between state and local law.  Plaintiffs filed an amended complaint to add this additional point of conflict between state and local law.

The City of Boulder filed a motion to dismiss.  The motion was fully briefed and oral argument occurred on April 30, 2019.  The Court dismissed the possession-by-minors claims for lack of standing.

On November 13, 2020, the applicants filed a motion for summary judgment.

 

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DELAWARE

Delaware State Sportsmen's Association; Bridgeville Rifle & Pistol Club, LTD.; William Bell; and Cecil Clements v. Shawn M. Garvin and Delaware Department of Natural Resources and Environmental Control.

The applicants' attorneys inform as follows:

On November 1, 2019, the applicants filed a complaint for declaratory relief in the Superior Court of the State of Delaware.  The complaint challenges an attempt by the Delaware Department of Natural Resources and Environmental Control-a state agency which regulates hunting-to ban certain modern sporting rifles.

The legislature rejected the Delaware Department of Natural Resources and Environmental Control's efforts to enact the ban statutorily.   The Delaware Department of Natural Resources and Environmental Control is "now attempt[ting] to impose such a ban through a Hunting Guide without following the formal procedures for adopting a regulation."  The Delaware Department of Natural Resources and Environmental Control modified its hunting guide to "include additional restrictions on pistol-caliber rifle hunting that do not appear in the plain text of 7 Del. C. §704(g)."  While the Hunting Guide purports to be a "summary for the convenience of hunters and trappers," hunters and law enforcement officers rely on it in the field.

On December 2, 2019, the defendants filed a motion to dismiss.  On December 17, 2019, the applicants filed a response to the motion to dismiss.  The Court denied the defendants' motion.

The parties stipulated to the facts and on June 19, 2020, the applicants filed their opening brief in support of their motion for summary judgement.  On June 22, 2020, the defendants filed their opening brief in support of their motion for judgement on the pleadings.  On July 22, 2020, the defendant filed their answering brief in opposition to plaintiffs' motion for summary judgement.  On July 22, 2020, the plaintiffs filed their answering brief in opposition to defendants' motion for judgment on the pleadings.  On August 7, 2020, the plaintiffs filed their reply brief.  On November 18, 2020, the court denied the defendants' motion for summary judgement and partially granted and partially denied the plaintiffs' motion for summary judgement.

 

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FLORIDA

City of Weston v. Scott; Daley v. Florida; Broward County v. Florida.

Florida law broadly preempts the regulation of firearms and ammunition by municipalities, and it imposes penalties on local officials and municipalities who violate the preemption statute.  These three consolidated cases are brought by local officials and municipalities challenging the penalty provisions of Florida law.  The plaintiffs filed their complaints at various points during the late spring of 2018, and after obtaining consolidation of the three cases, Florida moved to dismiss the complaints on July 9, 2018 arguing that the plaintiffs lack standing and that their claims fail for various other procedural reasons.  On July 19, the NRA filed an amicus brief in support of the State's motion to dismiss.  The amicus brief explained the reasoning behind the penalty provisions and their importance for safeguarding the right to keep and bear arms, the traditional power that state legislatures have over municipalities, the lack of any First Amendment problem with the penalty provisions, and the lack of any legislative or sovereign immunity problem with the provisions.

The case is pending in the Circuit Court of the Second Judicial Circuit, Leon County, Florida.

Briefing on the motion to dismiss was completed by September 10, 2018 and oral argument occurred on September 28, 2018. The trial court denied the motion to dismiss.

Motions for summary judgment were due on January 21, 2019.  The NRA filed an amicus brief in support of a motion for summary judgment by the State.  The Court accepted the NRA's amicus brief on December 5, 2019.  The case is fully briefed and was argued on July 14, 2020.  The parties await the Court's ruling.

National Rifle Association of Americav. Moodey (formerly National Rifle Association of America v. Bondi).

The Florida previously banned adults between the ages of 18 and 21 from purchasing handguns.  Subsequently, Florida extended this ban to encompass long guns as well.

On March 9, 2018, a lawsuit was filed in the United States District Court for the Northern District of Florida, challenging Florida's ban on the purchase of firearms by adults between the ages of 18 and 21, on Second Amendment and the Equal Protection grounds.

On April 26, 2018, NRA moved for leave to amend its complaint to add a named individual plaintiff, allegations concerning another named individual harmed by the ban, and additional named defendants.  Plaintiff simultaneously moved for leave to allow the named individuals to participate under pseudonyms.  The State opposed this request.  On May 13, 2018, the United States District Court issued an order denying the request to proceed anonymously.  An interlocutory appeal was filed with the United States Court of Appeals for the Eleventh Circuit.  The appellants' opening brief was filed on June 27, 2018.  The Eleventh Circuit initially issued a jurisdictional question querying whether it had jurisdiction to entertain the appeal.  Both parties agreed that jurisdiction exists, and on July 16, 2018, the Court noted probable jurisdiction.  The appellees' brief was filed on August 15, 2018.  Briefing was completed on October 19, 2018.  The case below has been stayed pending resolution of the interlocutory appeal.

The anonymity issues were successfully negotiated with the new Florida Attorney General and the case moved back to the United States District Court.

The State filed a motion to dismiss.  This was denied on May 1, 2020.

The court allowed all of the claims to proceed against the Commissioner of the Department of Law Enforcement, while dismissing the claims against Attorney General Moodey for not having any enforcement authority.  The court also gave some indication that it would apply strict scrutiny in later proceedings.  Discovery recently closed, and cross motions for summary judgment are fully briefed.

 

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IDAHO

TC Property Management, Ltd. v. Caldwell Chapter of the Izaak Walton League of America d/b/a Caldwell Gun Club and Canyon County, Idaho.

The applicant's attorney informs as follows:

The applicant, the Caldwell Gun Club, a local chapter of the Izaak Walton League of America, was established in the 1940s as a shotgun shooting range.  In 2014, the Caldwell Gun Club added a sporting clay course on the property.

The plaintiff, TC Property Management, Ltd., a California limited partnership, d/b/a Canyon Springs RV Resort, acquired land adjacent to the applicant's property for the purpose of operating an RV resort, which opened in October 2015.

On May 30, 2019, Property Management, Ltd. inquired about purchasing the applicant's property.  A few weeks later, Property Management, Ltd. submitted a zoning complaint to the Canyon County Development Services Department alleging that the applicant had not obtained a conditional use permit to properly expand its operations when the applicant added sporting clay stations.

On September 6, 2019, the applicant received a notice of violation from Canyon County Development Services Department regarding a complaint by TC Property Management, Ltd. regarding noise and alleging that the applicant failed to obtain a conditional use permit for the addition of the sporting clay stations.

In 1996, Idaho codified the "coming to the nuisance" doctrine for "sport shooting ranges." Idaho Code § 55-2601 et seq.

Except as provided in this section, a person may not maintain a nuisance action for noise against a shooting range located in the vicinity of that person's property if the shooting range was established as of the date the person acquired the property.

Idaho Code §55-2602(1).

In 2008, the Sport Shooting Range Statute was amended "to include definitions of certain actions that would not constitute a 'substantial' change in use of established shooting ranges and preempt local government authorities from taking any action to enforce zoning ordinances relating to noise."  Idaho Code §55-2604.

The Caldwell Gun Club responded to CCDSD citing to Idaho Code §§18-33021 and 55-2601, et seq., which preempts Counties and Cities from attempting to regulate sport shooting ranges and allegations of "noise complaints." The Idaho legislature enacted statutes to protect sport shooting ranges from local government regulation and interference. Idaho Code §55-2604 specifically allows sport shooting ranges to expand and increase membership and activities on the shooting range without triggering the need to comply with local zoning ordinances. The Caldwell Gun Club has, consistent with Idaho Code §55-2604, lawfully and in full compliance with State law, increased the activities of shotgun shooting on its property. As such, there was no need to apply for a conditional use permit.

On April 15, 2020, TC Property Management, Ltd. filed a complaint and a motion for preliminary injunction, alleging nuisance claims related to "noise and fear of stray projectiles" and requesting declaratory relief, namely that the applicant is required to obtain a conditional use permit and that the sporting clay course is a nonconforming use.

On May 1, 2020, the applicant filed a motion to dismiss, an opposition to motion for preliminary injunction, and a motion to strike affidavits attached to the preliminary injunction motion.  The preliminary injunction was heard by the District Court on May 8, 2020.  On May 18, 2020, the District Court entered an order denying the motion for preliminary injunction.

On May 11, 2020, the Canyon Count Prosecuting Attorney's Office determined that the applicant's alleged violation did not amount to criminal conduct.

On May 28, 2020, the plaintiff filed a motion for partial summary judgment.  On June 11, 2020, the applicant filed a memorandum in opposition to plaintiff's motion for partial summary judgment, a memorandum in support of the applicant's motion to dismiss, and a cross-motion for summary judgment. The plaintiff filed an opposition to the applicant's motion for summary judgment.  On July 14, 2020, the District Court entered an order denying both parties' summary judgment motions.

The case is now in discovery.  To date, the plaintiff has taken the deposition of 5 representatives and/or witnesses for the applicant.  The applicant is scheduling the depositions of two witnesses for Canyon County.

 

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ILLINOIS

Guns Save Lives, et al. v. Kwame Raoul.

This case, filed in Sangamon County, challenges the Illinois Firearm Owners Identification Card Act, which requires Illinois residents to secure a license and pay a fee in order to be permitted to own a firearm, even in their own homes.

The trial court denied the plaintiffs' motion for preliminary injunction.  The plaintiffs appealed to the Fourth District Appellate Court.  The Appellate Court affirmed.  "The court found that we had established all the element for a preliminary injunction, except that consideration be given to maintaining the status quo. Since the FOID Card Act was originally passed in 1968, the court ruled that granting the injunction would not serve to maintain the status quo, and accordingly, the case was remanded to the trial court."

The case is back in the trial court. On October 23, 2020, the applicants filed motion to amend the complaint.

Guns Save Life, Inc. v. Village of Deerfield.

This case is a challenge to an "assault weapons" and "large capacity" magazine ban enacted by the Village of Deerfield, Illinois.  While Illinois law prohibits localities from enacting new assault weapons bans, Deerfield argues that the ban actually is an allowed amendment of a prior "assault weapon" storage regulation.  The plaintiffs disagree, and they argue that the ban therefore is preempted.  They also argue that the ban is preempted by State hunting law and that it is an unconstitutional taking without just compensation.  As originally drafted, the Deerfield ordinance also defined "large capacity magazines," but, despite public statements by Village officials to the contrary, did not actually ban them.  Plaintiffs sought a declaration that large capacity magazines are not banned or, in the alternative, that any ban is preempted or an uncompensated taking.

On April 19, 2018, the plaintiffs' filed a lawsuit in the Illinois State Court, Lake County challenging the ban.  On July 12, 2018, the Court issued a temporary restraining order blocking enforcement of the ordinance.  The Court concluded that the ordinance's ban on certain popular firearms was preempted by Illinois law and that the ordinance did not actually prohibit possession of any magazines.  The Village subsequently amended its ordinance to expressly ban "large capacity" magazines but issued a press release acknowledging that the ban will not go into effect so long as the temporary restraining order remains in place.

On October 12, 2018, oral argument on a motion to convert the temporary restraining order to a preliminary injunction was held.  On October 26, 2018, the plaintiffs moved for summary judgment and a permanent injunction.  The defendant responded on November 30, 2018.  Plaintiffs filed a reply brief on December 14, 2018.  On March 22, 2019, the trial court granted plaintiffs' motions for summary judgment on all claims, except the Takings and Eminent Domain claims, and issued the permanent injunction barring enforcement of the ordinances.

The Village of Deerfield appealed to the Second District Appellate Court.  In late July 2019, the Court ruled that the appeal was not properly filed and was out of time to be corrected by the defendants.

Subsequently, in the trial court, after briefing and oral argument as to whether the consolidation was a full merger or not, the trial court held that the consolidation was a full merger.

The Village of Deerfield appealed to the Second District Appellate Court to address the merits of the trial court's March 22, 2019 ruling.  The parties submitted their briefs by the end of February 2020 and oral arguments were held on June 9, 2020.

On December 4, 2020, the court ruled that the preemption statute allows localities to amend pre-existing ordinances outside of the preempt timeframe. The court upheld Deerfield's new ordinance because it already had an "assault weapons" ordinance before the time frame.

The applicants are considering an appeal.

 

Guns Save Life Inc., DPE Services, Inc. d/b/a Maxon Shooter's Supplies and Indoor Range, and Marilyn Smolenski, v. Zahra Ali, Thomas J. Dart, County of Cook, Illinois.

This case is a challenge to both an ammunition "violence tax" and to a gun tax imposed by Cook County, Illinois in 2015.

The defendant filed a motion to dismiss in March 2016 which was denied.  The plaintiffs filed a motion for summary judgment.  In February 2017, the Court granted a motion by the defendant to delay briefing during discovery.  After limited discovery, the defendant cross-moved for summary judgment on November 6, 2017.  On August 17, 2018, the district court denied the plaintiffs' motion for summary judgment and granted the defendant's motion for summary judgment. "The court essentially ruled that the taxes create a burden that is too minor to invalidate them."

The plaintiffs appealed to the Illinois Appellate Court, First Judicial District.  On July 19, 2019, briefing in the Illinois Appellate Court concluded.  The Appellate Court affirmed.

On May 22, 2020, the plaintiffs filed a petition for leave to appeal to the Illinois Supreme Court.  On September 30, 2020, the petition was granted.

 

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INDIANA

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

Jefferson County Plan Commission v. Joseph Chapo and Sherry Chapo.

Joseph Chapo and Sherry Chapo v. Jefferson County Plan Commission.

Joseph Chapo, Sherry Chapo, Deputy Big Shot, LLC v. Jefferson County, Indiana; Darrell M. Auxier, R. Patrick Magrath, Jefferson County Plan Commission, Warren Auxier, Jeffrey Daghir, Lonnie Mason, Gene Riedel, Jerry Yancy, Dennis Boyer, Virginia Franks, Laura Boldery, Jefferson County Board of Zoning Appeals, James Griffith, Robert Jacobson, Mike Shelton, Alana G. Jackson, Jesse Duquette, Tamara Duquette, Jeffrey Sharp, Jefferson County Circuit Court, Court of Appeals of Indiana.

The applicants' attorney informs as follows:

In 1991, the applicants, Joseph and Sherry Chapo, purchased their property in Deputy, Indiana and set up a shooting range.  They own and operate the only public shooting range in Jefferson County, Deputy Big Shot, LLC.

In August of 2012, Jefferson County passed the Jefferson County Zoning Ordinance.  The ordinance did not address shooting ranges or gun shops in the Agricultural Zone in which the Chapos' property was now located. The Chapos made an inquiry with the Jefferson County Plan Commission regarding both uses, and were instructed by the Secretary of the Jefferson County Board of Zoning Appeals and the Jefferson County Plan Commission that a permit was required for each use.  The applicants filed the required applications.  On October 2, 2012, the Board of Zoning Appeals approved the gun shop application and deferred the range application.  On November 11, 2012, the Board of Zoning Appeals denied the range conditional use application.

On October 24, 2012, the applicants "organized and registered Deputy Big Shot[,] LLC in Indiana to include a gun shop and expand the original shooting range to accommodate the public."  By January 2013, Deputy Big Shot, LLC had applied for and received a federal firearms license and had registered with Indiana to sell handguns.

On November 7, 2012, the Jefferson County Board of Zoning Appeals denied the range conditional use application solely on noise, without any such provision in the cited ordinance and contrary to state law.

On March 31, 2016, neighbors Jesse and Tamara Duquette filed a complaint with the Jefferson County Zoning Officer against Deputy Big Shot, LLC and the Chapos.  On April 6, 2013, the Zoning Enforcement Officer served the applicants with an enforcement order to discontinue the illegal use of the land, building, and structures.  On April 19, 2016, the applicants responded in writing to the zoning enforcement order.  A public hearing regarding these alleged zoning violations was held on April 20, 2016.  On April 27, 2016, the Zoning Enforcement Officer issued an amended enforcement order.

On May 25, 2016, the Jefferson County Plan Commission filed a complaint and injunction against the Chapos only, even though Deputy Big Shot, LLC was actually operating the shooting range.  On November 17, 2016, The Madison County Circuit Court issued a preliminary injunction enjoining Joseph and Sherry Chapo from operating the range.  The applicants filed an interlocutory appeal on December 14, 2016.

Deputy Big Shot, LLC was added as a Defendant in an amended complaint on December 20, 2016.  On January 4, 2017, a preliminary injunction was issued enjoining Joseph and Sherry Chapo and Deputy Big Shot, LLC from operating the range.  The applicants appealed the granting of the preliminary injunctions to the Indiana Court of Appeals.  On June 15, 2017, the applicants filed their appellate brief.  On August 14, 2017, Jefferson County Plan Commission filed its appellate brief and a motion to strike.  On October 2, 2017, the applicants filed their reply brief.

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

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

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

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

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

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

On July 14, 2017, the Jefferson County Plan Commission filed a citation for contempt and a motion to enforce.

On September 7, 2017, the trial court heard the applicants' motion to dismiss and the Jefferson County Plan Commission's motion for contempt.  On October 17, 2017, the trial court issued an order denying the applicants' motion to dismiss and granted the Jefferson County Plan Commission's motion for contempt.

On October 26, 2017, the Jefferson County Plan Commission filed a motion for a permanent injunction. On October 30, 2017, the circuit court stayed the proceedings pending the appeal.  The stay, however, did not affect the preliminary injunctions nor the finding of contempt.

On November 17, 2017, the applicants filed, with the Indiana Court of Appeals, an emergency motion to stay the proceedings in the trial court pending the appeal.  On May 29, 2018, the Indiana Court of Appeals denied the motion for an emergency stay and issued an opinion upholding the Circuit Court's opinion.  Both the November 17, 2017 order and the January 4, 2018 order were upheld by the Court of Appeals.  On June 26, 2018, the applicants filed a petition for rehearing, which was denied on November 1, 2018.

The original judge recused himself in November of 2017 and, on December 6, 2018, a new judge was assigned to the case.  On January 11, 2019, the new judge lifted the stay.  On February 10, 2019, the applicants filed an answer.  On February 11, 2019, the applicants filed a motion for judgment on the pleadings.  On February 20, 2019, the JCPC filed a response and a motion to strike to which the applicants field a reply and a response.  On February 26, 2019, the applicants filed responses thereto.  A hearing occurred on July 12, 2019 on the motions.  On November 25, 2019, the Court ruled adversely on the applicant's motions but denied Jefferson County's motion for sanctions against the applicants.

The applicants filed a motion for summary judgment.  A March 3, 2020 order set a hearing date on the motion for May 27, 2020 and a trial date was set for July 7, 2020.

However, on May 21, 2020, the applicants filed a Motion to Stay Trial Court pending Appeal.  On June 24, 2020, a stay pending the appeal was granted.

The appeal was taken because Rule 60 of the Indiana Trial Rules allows an interlocutory Rule 60(B) motion to be filed and when the motion is denied it is deemed a final judgment for appeal. The Chapos filed the Rule 60(B)(6) motion based on the JCPC not having standing to bring and action, because of the failure of the members to take and deposit their oaths of office. Since, the offices were vacant as a matter of law, the member are usurpers, not entitled to de facto officer status. These issues are of first impression in the State of Indiana. The Chapos anticipate the appellate court will uphold the law. Otherwise, IC §§5-4-1-1(a) and 5-4-1-1.2 will be rendered meaningless and public officers will be free to violate the requirement to take an oath of office.

On July 30, 2020, the applicants filed a corrected appellants' brief.  On August 31, 2020 the defendants filed their appellee brief.  On September 14, 2020 the applicants filed their reply brief.

On May 26, 2018, the applicants also filed a 1983 action in the United States District Court for the Southern District of Indiana.

The  …  1983 action is based on the violations of the plaintiffs' 2nd Amendment rights by the defendants  …

1.         The Jefferson County Board of Zoning Appeals had no Constitutional authority, nor legal authority to require the Chapos to obtain a conditional use permit in 2012, based on the Ezell case, Indiana Shooting Range law, and the fact that the Jefferson County Zoning ordinance had no provision addressing shooting ranges;

2.         The Jefferson County Plan Commission had no Constitutional authority, nor legal authority to initiate an action against the Chapos in 2016, based on the Ezell case, Indiana Shooting Range law, and the fact that the Jefferson County Zoning Ordinance had no provision addressing shooting ranges. Without a violation of a provision the Jefferson County Plan Commission had no jurisdiction [to] initiate the lawsuit;

3.         [The state court] had no subject matter or personal jurisdiction to hear the case.

The actions of some of the defendants in 2012 also ignored and violated the Indiana Shooting Range statutes, Chapter IC §14-22-31.5 which protected shooting ranges in existence prior to July 1, 1996. The statutes protected said ranges from noise liability (IC §14-22-31.506) and allows said ranges to "Expand or increase the membership of the shooting range or opportunities for public participation at the shooting range," (IC §14-22-31.5-7(3)). The Indiana Shooting Range statutes prohibit local government from pursuing shooting ranges for activities falling under the Shooting Range statutes. Any actions by local governments in violation of the Shooting Range statutes have strong subject matter jurisdiction implications. The 1983 action also sought preliminary injunctions against the Jefferson County Circuit Court and the Indiana Court of Appeals.

The Federal case is waiting on two appeals of the Magistrate's decision, the one filed on 5/29/2020 appealing the Magistrate's decision denying a stay pending the appeal in the state case, and the one filed on 8/4/2020 appealing to Magistrate's decision to allow discovery while the 5/29/2020 appeal was pending. The District Court Judge has yet to rule on either appeal.

Currently pending is the scheduling of oral arguments, or decision, if made without oral arguments.

Jerry W. Wise, Kathy Lee Wise, David A. Drake and Brozia Lee Drake v. Precision Gun Range, LLC, and Lane L. Jorgensen, Katheryn A. Jorgensen, as the trustees of the Jorgensen Family Trust v. Precision Gun Range, LLC.  New Case Listing Report #730.

The applicant's attorneys inform as follows:

The applicant, Precision Gun Range, LLC, located in Spencer, Indiana, is a for-profit organization providing sport shooting and self-defense shooting training to the public.

In 2017, two separate lawsuits were filed in the Owen County Circuit Court, Indiana, against the applicant by downrange land owners who "appear to have development interests."  The complaints allege that projectiles from the applicant's rifle range have impacted their properties.  The complaints alleged negligence, nuisance, and trespass, and seek a permanent injunction and actual, consequential, and punitive damages.

According to the applicant, other nearby land owners have allowed hunters to shoot on their own land and there is also a private range adjacent to the applicant's range.  The applicant maintains that the projectiles allegedly impacting the plaintiffs' property do not originate from the applicant's range.

The State Police completed an initial investigation of the trespassing projectiles and concluded that the applicant's range was the source.  However, "the investigation failed to gather the type of evidence required to draw expert conclusions concerning the point of origin of projectiles found at such a distance," and did not involve experts with long range ballistics expertise.

The plaintiffs attempted to persuade the local zoning board to take enforcement action against the range.  After a February 2, 2018 public meeting, the Board of Zoning decided not to take action against the range.  In May 2018, new complaints were filed against the applicant by a neighbor.  Subsequently, the applicant completed the safety enhancement structures that the range agreed to put in place to satisfy the Board of Zoning Appeals.

With prepared expert opinions and safety enhancements in place, the applicant forced the Board of Zoning Appeals' hand by reopening its range-despite the Board of Zoning Appeals' initial refusal to allow the resumption of operations-effectively forcing the Board of Zoning Appeals to go to court or to approve the reopening.  In June of 2019, the Board of Zoning Appeals voted unanimously to allow the applicant to reopen its rifle range.

However, the litigation continues.  The two cases pending in state court against the range have been consolidated.  Trial was scheduled for January 2020.  The court entered a new scheduling order and the jury trial was rescheduled for September 2020.  The applicant filed a motion for summary judgment in May 2020.  Due to the COVID-19 crisis, the court entered yet a new scheduling order for the consolidated actions, rescheduling the jury trial to January 2021.

In these first two consolidated cases actions, on September 15, 2020, the applicant filed a renewed motion for summary judgment. On October 7, 2020 mediation between the parties occurred and a general agreement on the terms of an acceptable settlement was reached during mediation.  That agreement is in the process of being finalized.

On July 17, 2019, a third lawsuit was filed in the Owen County Circuit Court, Indiana, against the applicant by the same individuals who are plaintiffs in the two prior pending lawsuits.  The new lawsuit seeks to overturn the June 2019 unanimous decision by the Owen County Board of Zoning Appeals that allowed the applicant to resume operation of its rifle range.  The new lawsuit also includes a self-styled private enforcement, public nuisance type claim concerning alleged bullet impacts to down range residences caused by bullets from the applicant.  "The newest case challenges the range's zoning permit years after the fact and seeks to litigate the very safety and causation issues before the court in the first two lawsuits, this time under the guise of a self-styled nuisance-type private enforcement action of the zoning code."  The plaintiffs obtained an order from the court requiring expedited discovery in the new lawsuit and filed a motion for a preliminary injunction.  The applicant's rifle range is currently closed due to the preliminary injunction issued in new lawsuit.

In this third lawsuit, the applicant appealed the court's decision on the preliminary injunction and permit.  The applicant filed its appeals brief in June of 2020.  The plaintiffs' response was filed on August 6, 2020. The appellate court recently upholding the lower court.  The applicant is considering its legal options.

 

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LOUISIANA

Nyron Harrison, Thelma Williams, Individually and o/b/o Their Minor Child, Ka'Mauri Harrison v. Jefferson Parish School Board, Dr. James Gray, Cecily White, Terri Joia, and Patricia Adams.

The applicant's attorney informs as follows:

The applicants are nine (9) year old Ka'Mauri Harrison, and his parents.  The applicant was a fourth grade student at a public elementary school.  Due to the Coronavirus, the school had been conducting classes remotely by videoconference.  On September 11, 2020, the applicant was in his bedroom during a virtual instruction and testing session.  The applicant's younger brother, while on break from his virtual class, came into their shared bedroom and tripped over a Daisy BB gun.  "Ka-Mauri, acting instinctively and immediately, picked up the Daisy BB gun and moved it out of his brother's way, and continued taking the [t]est."  The applicant was unaware that this action could be seen on camera by his teacher.  At all times, the applicant was in his bedroom and at all times the applicant was peacefully and lawfully possessing the BB gun.  "It is unambiguously lawful for a child to possess a BB gun in his home with his parents' permission."

The applicant was subsequently kicked out of class for "possess[ing] weapons prohibited under federal law."

On September 22, 2020, an administrative Due Process Hearing was held by [the Jefferson Parish School Board] to adjudicate the original recommendation of expulsion.  …   [S]everal substantive and procedural due process violations occurred.  …  [T]he school district seemed to concede that that there were a number of procedural due process deficiencies in the notice and documentation protocols which preceded the hearing; moreover, the charges against Ka' Mauri were factually false and contrary to state law.  Nonetheless, the Hearing Officer decided to suspend Ka' Mauri from school for an additional six days, on the ground that possessing any firearm-or any replica firearm-in a visible area of the home during a digital instruction session violated school rules.  …  The purported ground for suspension was that families may not possess visible firearms or replica firearms in their homes during virtual instruction sessions.

The applicant had already been deprived of attending school and receiving instructions for nine (9) days.  Furthermore, the Jefferson Parish School Board ordered a social work assessment of the applicant and his family.  The applicant's family has grounds to believe that the social work assessment will be used "to retaliate against [the applicant] for his family speaking about their case to the press."

The applicants' attorney requested an appeal of the school board's decision on several occasions.  The school board responded that "there is no right of appeal for a suspension" and that "the decision of the Superintendent shall be final."

On October 2, 2020, the applicants filed a petition for judicial review, and alternatively, a writ of mandamus, petition for damages and request for jury trial in the 24th Judicial District Court, for the Parish of Jefferson, State of Louisiana, against the Jefferson Parish School Board, Dr. James Gray, Cecily White, Terri Joia, and Patricia Adams, for their actions related to the recommendation for expulsion of Ka'Mauri from the Jefferson Parish School System.

[The] Petition  …  alleges a litany state and federal constitutional rights violations by the Jefferson Parish School System and individual defendants.  The Petition advances several facial and as-applied challenges to school regulations that purport to prohibit families from possessing firearms, or replica firearms, in their homes during virtual instruction sessions.

On October 6, 2020, the applicants filed a motion for a temporary restraining order, a petition for preliminary and permanent injunctive relief.  The temporary restraining order was signed on October 7, 2020.  In early November, 2020, the defendants filed a motion to dissolve temporary restraining order.

On October 16, 2020, the applicants filed a first supplemental and amending petition, which included a count for First Amendment Retaliation.

On October 26, 2020, the defendants filed a notice of removal to the United States District Court for the Eastern District of Louisiana.  The applicants filed a Motion for partial remand.  On November 13, 2020, the motion for partial remand was heard.   The already dissolved temporary restraining order was dissolved by a joint stipulation of the parties.  On November 20, 2020, the Court denied the motion for partial remand.

[D]espite weeks of negotiations regarding stipulating to a Preliminary Injunction, and weeks to dispute the TRO, Defendants took it upon themselves to retaliate against Ka'Mauri further by changing his record to a different weapons possession charge and to unilaterally determine that the Preliminary Injunction was no longer an issue and "moot."  …  On October 27, 2020, Ka'Mauri received a letter from Superintendent Gray.8 Dr. Gray stated that Ka'Mauri's record has been changed "to accurately reflect the facts of the case as learned  ..." and "the code will be changed to say ... '14 Possesses weapons not federally prohibited.'" This is a direct violation of La. R.S. 17:416, as Ka'Mauri, for the first time, was now being charged with a new gun charge possession, those "not federally prohibited." Further, Dr. Gray sent a new and unique position that the accurate facts of this case were that Ka'Mauri possessed a non-federal weapon on campus, as opposed to a federal weapon on campus, but a weapon on campus nonetheless.

On November 4, 2020, the Jefferson Parish School Board passed an "Interim Virtual Discipline Policy" which provides that "[s]tudent conduct is governed, at all times and regardless of the model of instruction" by the applicable regulations and that "[s]tudents and parents, typically, have a reasonable expectation of privacy with regard to what takes place in their home outside of the view of teachers and peers in the virtual classroom." Thus, the governmental classroom and regulations governing conduct in the classroom now extend to the private homes of students.  In regard to the "handling or displaying of weapons, including toy or facsimile weapons," the Jefferson Parish School Board Interim Policy requires that evidence of such must be immediately reported to determine whether they must be reported to local law enforcement and/or the Department of Children and Family Services.  Parents are required to sign a document agreeing to these terms.

After weeks of litigation, the School Board finally granted a review of the decision.  A hearing was scheduled for December 4, 2020, at which the applicants will have the opportunity to present his case to the School Board to determine whether or not the School Board believes that the evidence indicates that Ka'Mauri "possessed a weapon on campus."

The School Board determined that Ka'Mauri received procedural due process,. The School Board failed to address the merits of the weapons on campus statute to the privacy of Ka'Mauri's bedroom.  School system administrators testified that the bedroom was in fact the classroom when virtual instruction is occurring.

On November 24, 2020, after learning that Defendants would grant Ka'Mauri a School Board review of the discipline determination, the parties filed a joint consent motion to extend deadlines for the applicants to file a second supplemental and amending complaint on or before December 15, 2020 and for responsive pleadings to be filed by January 08, 2021.   A Scheduling Conference has been set for January 5, 2021.

 

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MARYLAND

Norris Paul Carey, Jr. v. Maryland Natural Resources Police, Joanne Throwe, Deputy Secretary Department of Natural resources, Captain Edward Johnson, Maryland Natural Resources Police, and Captain Charles Vernon, Maryland Natural Resources Police.

The applicant's attorney informs as follows:

On January 18, 2018, the applicant filed a lawsuit in the United States District Court for the District of Maryland against the Maryland Natural Resources Police ("MNRP"); Deputy Secretary Joanne Throwe ("Deputy Secretary Throwe") of the Maryland Department of Natural Resources ("DNR") in her individual capacity; Captain Edward Johnson ("Captain Johnson") of the MNRP in his individual capacity; and Captain Charles Vernon ("Captain Vernon") of the MNRP in his individual capacity.  The applicant "asserts a claim against Deputy Secretary Throwe, Captain Johnson, and Captain Vernon for First Amendment retaliation under 42 U.S.C. § 1983 …; a claim against MNRP under § 1983 for violation of rights granted by the Law Enforcement Officer Safety Act, 18 U.S.C. § 926C ("LEOSA"); and, a claim for defamation against Captain Johnson."

The applicant filed the lawsuit against the defendants after MNRP rescinded the applicant's LEOSA card and brought about his termination from the DNR in retaliation for the applicant exercising his right to free speech.

This case involves the denial of privileges and rights by unconstitutional practices inherent within the Maryland Natural Resources Police and buttresses the contention that retired law enforcement officers have an enforceable Federal right to obtain a concealed carry firearm permit and can sue in Federal court when their rights have been violated.

The applicant's attorney informs of the following facts underlying the case:

The applicant retired from MNRP on December 31, 2013, after twenty-six years of service.  Throughout his career with MNRP, the applicant received excellent evaluations and there was never any disciplinary action.  The applicant received multiple career related awards from the MNRP and retired from MNRP in good standing.

Prior to his retirement, the applicant was interviewed by MNRP as a witness in an ongoing investigation of a missing M16 patrol rifle.  Unbeknownst to the applicant, a former MNRP officer was a suspect in the investigation.

Three months prior to his retirement, the applicant received a notification of complaint, dated September 26, 2013.  The notice alleged that the applicant was communicating with the former MNRP officer who was under investigation by MNRP, and that the applicant had shared information with that officer about the investigation.  The applicant admitted speaking to the former officer, but denied sharing any information with him.  No charges were brought against the applicant or the any other officers.

On August 2, 2015 the applicant began work for the DNR.  This was a civilian position within DNR under a long term contract.

The applicant applied for a "Retired Law Enforcement Officer Card," qualifying him to carry a semi-automatic weapon, which he received on April 25, 2017.  Three days later, Captain Vernon contacted the applicant and informed him that he was not in good standing, and demanded that the applicant return his card.   The applicant contacted the Maryland Police and Correctional Training Commission to inquire about his retirement status, which confirmed that he was in good standing, but informed him that someone had attempted to try to change the applicant's retirement standing earlier that morning.  Captain Vernon then informed the applicant's DNR supervisor of the applicant's "revoked" LEOSA card.

The applicant performed his duties at the DNR to the satisfaction of his supervisor and consistently received excellent reviews and there was never any disciplinary action.  The applicant's supervisor informed the applicant that his contract would be renewed by the expiration date of August 8, 2017.

However, on May 25, 2017, the applicant was fired personally by Deputy Secretary Throwe.  The applicant was not given any reason for his termination, despite his request for an explanation.  The applicant's direct supervisor was shocked by the termination.

The applicant asserts that he was terminated as a result of exercising his right to free speech and publicly calling attention to questionable conduct by MNRP personnel.  "Mr. Carey was terminated in retaliation for exercising his right to free speech and publicly calling attention to information that called MNRP into dishonor and disgrace."  On December 14, 2016, the applicant had posted a report on the Salisbury News Blog about Captain Johnson's posts on his own personal Facebook page.  These posts included photos of Captain Johnson in his MNRP uniform with "scantily clad women in sexually provocative poses and the back of a man wearing a Pagan motorcycle jacket."  The applicant alleged that Captain Johnson violated the MNRP's code of conduct and was "duplicitous" in his investigation of fellow officers for suspicions of misconduct.  The applicant alleged that the "chain of command was aware of Captain Johnson's questionable behavior and failed to take remedial action."  In another blog posting, the applicant "showed photographs of Captain Johnson's assault weapon  …  along with other photographs and comments making light of gun violence and death."

In retaliation for his postings on the Salisbury News Blog, the MNRP engaged in a campaign to harass the applicant, including in his subsequent work place at the DNR.

Following his retirement, he was unfairly denied his retirement credentials and 'blacklisted' by the agency, foreclosing his ability to find re-employment in the same field.  ….   Following Mr. Carey's disclosures, officials within the MNRP used the prestige of their office to bring about Mr. Carey's termination from DNR and to rescind his properly issued LEOSA card.

On April 13, 2018, the defendants moved to dismiss the three counts, or, in the alterative, for summary judgment on counts one and two.  On April 25, 2018 and May 7, 2018, the applicant filed his memoranda of law in opposition to these motions.  On May 7, 2018, the applicant filed an amended complaint.  The defendants filed a motion to dismiss the first amended complaint or, in the alternative, for summary judgment on July 2, 2018.  On August 14, 2018, the applicant filed his opposition to motion to dismiss.

On January 31, 2019, the United States District Court for the District of Maryland granted the defendants' motion to dismiss.

The applicant appealed to the United States Court of Appeals for the Fourth Circuit.  The case was fully briefed and oral argument occurred on March 13, 2020.  On April 30, 2020, the United States Court of Appeals for Fourth Circuit affirmed the District Court's dismissal.

The applicant intends to file a petition with the United States Supreme Court "to seek to reverse the Fourth Circuit's holdings that retired law enforcement officers do not have an enforceable Federal right to obtain a concealed carry firearm permit under LEOSA or have the ability to sue in Federal court when their rights under LEOSA have been violated. We have every reason to believe the Supreme Court will be interested in hearing this case as it not only involves the denial of privileges and rights by unconstitutional practices, but also creates a circuit split. Notably, the Fourth Circuit's decision splits from that of Duberry v. District of Columbia, 316 F.Supp.3d 43 (D.D.C. 2018)  …  ."  The Court has asked the State to respond to the applicant's petition.  The State's response was due on November 18, 2020.

Maryland Shall Issue, Incorporated, Atlantic Guns, Incorporated, Deborah Kay Miller, Susan Brancato Vizas, Ana Sliveira, Christine Bunch v. Lawrence Hogan, in his capacity as Governor of Maryland; William M. Pallozzi, in his capacity as Superintendent, Maryland State Police.

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

The plaintiffs filed a lawsuit challenging the Maryland handgun qualification license in the United States District Court for Maryland under the Second and Fourteenth Amendments.

Maryland filed a motion to dismiss which was denied on all but one count. The Court held that the plaintiffs did not have standing to challenge the requirement that applicants take a firearm-safety course from a certified instructor.

The plaintiffs appealed to the United States Court of Appeals for Fourth Circuit.  Oral arguments were held on May 6, 2020.  On August 3, 2020, the United States Court of Appeals for Fourth Circuit affirmed in part, reversed in part, and remanded with instructions, affirming the District Court's holding that the individual plaintiffs lack standing to pursue the ultra vires claim.

The parties are now back in the district court where summary judgment motions are scheduled to be briefed through March 2021.

 

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MASSACHUSETTS

Granby Bow & Gun Club, Inc., et al. v. Town of Granby Zoning Board of Appeals, et al.

The applicant's attorney informs as follows:

The applicant is a not-for-profit corporation, founded in the 1940's, which operates a rifle, pistol, and archery shooting range on approximately 260 acres of land that it owns in Granby, Massachusetts.  The range predates any enacted zoning ordinances.

In the spring of 2017, some property owners near the range began a public campaign to shut down the club.  After the building inspector stepped down in September 2017, the Town of Granby's Board of Selectman took over those duties and acted on three letter complaints against the applicant.  The letter complaints alleged noise nuisance, safety and zoning law violations.  The Board of Selectman issued a cease and desist letter ordering that the applicant immediately "cease and desist using its rifle range shooting shed and cease shooting at 1,000 yard targets from its upper firing area on the rifle range."  The applicant was not given an opportunity to be heard prior to the Board of Selectman's action.

The applicant appealed to the Granby Zoning Board of Appeals.  In November 2017, the Zoning Board of Appeals upheld the Board of Selectmen's decision.  There were no public hearings or deliberations prior to the Zoning Board of Appeals issuing its ruling.  The Zoning Board of Appeals did not hear or review any evidence supporting the three complaint letters other than a few aerial photos provided by the Board of Selectmen.

On January 5, 2018, the applicant appealed to the Massachusetts Land Court (Hampshire County).

The issues presented include:

(a)        [W]hether the [Zoning Board of Appeals] can eliminate vested constitutionally protected property rights that predate zoning via a pretextual zoning enforcement action; and

(b)        [W]hether range opponents can circumvent the protections afforded ranges by the Massachusetts Range Protection Act via a pretextual zoning enforcement action.

At the judge's urging, the applicant and the Town entered into a stipulation to attempt to resolve the dispute through permits, while preserving all rights to move forward with the appeal. The court approved the stipulation and remanded the case to the Zoning Board of Appeals.  In late 2018, the parties went back to the Zoning Board of Appeals to try to attempt to resolve the upper firing area permit by working though the permit process.  A public hearing on the permit application took place on April 9, 2019.  The permit for a shooter shed to mitigate noise while exercising grandfathered shooting rights at the range's precision firing line was denied, and litigation has resumed.  Efforts to settle the matter proved unsuccessful and the litigation in Massachusetts Land Use Court has resumed.

A status conference was held on November 21, 2019.  Discovery, including expert disclosures, was completed by March 30, 2020.  Dispositive motions were to be filed by May 30, 2020.  Trial was set for late June or early July 2020.

Recently, the Town initiated a new enforcement action against the applicant alleging that the applicant's management of vegetation represents a substantial expansion of use that requires a permit. The applicant appealed the new cease and desist to the Zoning Board of Appeals. The Zoning Board of Appeals upheld the zoning enforcement officer's decision.  The applicant appealed to the Massachusetts Land Court.

The applicant field a motion to consolidate the newest appeal with the pending appeal, as they involve identical issues.  At a case management conference in June 2020, the Court granted applicant's motion.

The discovery deadline was August 2020.  The applicant has filed a motion to compel the Town to respond to discovery requests.  The applicant is preparing a motion for summary judgment in the consolidated case.  Due to Covid-19 crisis, the trial has not been scheduled for the foreseeable future.  A trial may be conducted by Zoom in early 2021.

(The applicant also intends to file a 1983 action against the Town under the Second and Fifth Amendments to the U.S. Constitution in the United States District Court, District of Massachusetts.)

 

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MICHIGAN

Nancy Woehlke v. Timothy Craig Milko.

The applicant's attorney informs as follows:

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

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

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

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

A motion to modify custody and parenting time orders was filed at the end of March 2019.  "The court denied [the applicant's] request for an extended page limit and dismissed [the applicant's] motions based on the denial of that request."  The applicant's attorney redrafted and refiled the motion.

On October 30, 2019, the applicant's motion was granted.  The order provides that the applicant has "to make all firearms safe when not on his person or otherwise in use and that the daughter "will not participate in hunting until further order of this court."  The other party failed to file an appeal within the required 21-day period.

While the October 30, 2019 order granted permission for the older daughter to hunt and use firearms with her father, the younger daughter was not allowed to do so until further ordered by the court.  The younger daughter is now 8 years old, and the applicant believes that she is mature enough to handle firearms and to hunt.  The applicant intends to petition the court to allow the daughter to hunt.

 

Oakland Tactical Supply, LLC, Jason Raines, Matthew Remenar and Scott Fresh

v. Howell Township.

The applicant's attorneys inform as follows:

The applicant, Michael Paige, is the owner of Oakland Tactical Supply, LLC, a tactical firearms retailer in business since 2003, which has operated a retail store in Hartland Township Livingston County, Michigan, since 2011.  The applicant planned the building of an extensive outdoor range facility for both private and public use in neighboring Howell Township.  The applicant secured rights to a 350 acre parcel, zoned AR, and applied for the necessary local permits.

In 2017, the applicant applied to the Planning Board for a special permit.  The application was denied after neighbors opposed the application.  The basis for denial was that shooting ranges are not allowed in the AR district.  The applicant was informed that he needed to apply to the Township to "seek[] a text amendment to the AR district in order to permit shooting ranges there."  At a subsequent public meeting, neighbors opposed the text amendment.  The text amendment proposal was denied, with no opportunity being given to the applicant to be heard.

The applicable zoning ordinances do not prohibit shooting ranges nor mention them.

The Township's effective ban on shooting ranges is an "impermissible infringement on the Second Amendment right to practice with firearms at a range," in violation of the holdings on Ezell, et al. v. City of Chicago, 651 F.3rd 684 (7th Cir. 2011) (Ezell I) and Ezell, et al. v. City of Chicago, 846 F.3rd 888 (7th Cir. 2017) (Ezell II).  This case "presents the next logical extension of Ezell II to the Sixth Circuit.  Here, the zoning laws fail to address the siting of shooting ranges altogether, and this has made it virtually impossible to site an outdoor range despite the Township's location in a part of the country that would normally be thought of as friendly to ranges."

Although the 6th Circuit has not had the opportunity to consider whether shooting ranges are protected by the Second Amendment, related rulings suggest that the 6th Circuit will be receptive to extending Second Amendment protections to shooting ranges and firearms training activities.  …

As in Ezell II, the practical effect of the zoning ordinance is a total ban on outdoor shooting ranges, which the 7th Circuit has made clear is unconstitutional.  …

[T]he 6th Circuit has confirmed that after determining whether the activity (training) is historically protected, the burden is on the government to establish that the restrictions comply with the requirements of intermediate scrutiny. See Tyler v, Hillsdale County Sheriff's Department, 837 F.3d 678, 685, 6th Cir. 2016 (Mich.) … and Stimmel v. Sessions, 879 F.3d 198, 203, 6th Cir. 2018 (Ohio) … .  Intermediate scrutiny requires '(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.' Tyler, 837 F.3d at 693.  …  [T]he zoning restrictions applied by the Town provide a facial, absolute bar prohibiting siting of a gun range in any location within the Town. Therefore, the challenge would meet the more restrictive standards applied in cases such as Chicago Gun Club, LLC v. Vill. of Willowbrook, Illinois, No. 17 C 6057, 2018 WL 2718045 (N.D. III. June 6, 2018) and Teixeira v. Cty. of Alameda, 873 F.3d 670, 678-79 (9th Cir. 2017), cert. denied sub nom. Teixeira v. Alameda Cty., Cal., 138 S. Ct. 1988 (2018).

On November 2, 2018, the applicant's attorney filed a lawsuit, on behalf of the applicant and three individual plaintiffs, in the United States District Court, Eastern District of Michigan-seeking injunctive relief, fees and costs-challenging the constitutionality of the Township's zoning laws which effectively ban outdoor shooting ranges, as a violation of the Second Amendment.

Settlement negotiations ended unsuccessfully in February 2019 and litigation resumed.

On April 10, 2019, applicant filed a motion of summary judgment and a supporting memorandum of law.  The Township filed a motion for summary judgment and motions to dismiss, raising, amongst other issues, standing ripeness, and mootness.  In the summer of 2019, several individual plaintiffs were added to the lawsuit, effectively destroying the Township's strongest arguments for dismissal (namely, that none of the individual plaintiffs resided within the Township).

The court scheduled settlement discussions and litigation was stayed pending settlement discussions.  A status and settlement conference occurred on August 28, 2019.  On February 20, 2020, the applicant submitted to the Township an extensive packet of documentation, including preliminary plans prepared by Oakland's experts, for the proposed range project, and a proposed draft consent judgment.

In March 2020, the Township Board declined the applicant's settlement offer.  At a court status conference, in May 2020, a new briefing schedule was issued.  Dispositive motions were due on June 19, 2020.  Oakland and the individual plaintiffs filed a motion for summary judgment and the Township filed a motion to dismiss on June 19, 2020.  Two rounds of response briefs and reply briefs have been filed.

On September 10, 2020, the Court-without oral argument-granted the Township's motion to dismiss.  On September 24, 2020, the applicant filed a motion for reconsideration and a motion for leave to file a proposed third amended complaint.  On October 8, 2020, the Township filed a motion for leave to respond to the applicant's motion for leave to file an amended complaint.  The parties await the Court's ruling on the pending motions.

Joshua Wade v. University of Michigan.

The applicant's attorney relates the following pertinent facts:

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

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

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

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

In November 2015, the Court granted the University's motion for summary disposition.  Counsel for Mr. Wade filed an appeal with the Michigan Court of Appeals on December 4, 2015.  .

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

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

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

On December 20, 2017, the Michigan Supreme Court issued an order holding this case in abeyance until the cases of Michigan Gun Owners, Inc. v Ann Arbor Public Schools and Michigan Open Carry Inc. v Clio School District, were resolved by the Michigan Supreme Court.  On July 27, 2018, the Supreme Court issued its opinions in those two cases.

On June 6, 2017, the Michigan Supreme Court issued an order holding this case in abeyance pending the outcome of New York State Rifle & Pistol Association, Inc. v. City of New York.

On November 6, 2020, the Michigan Supreme Court issued an order granting the applicant's application for leave to appeal.   The Court ordered as follows:

The parties shall address: (1) whether the two-part analysis applied by the Court of Appeals is consistent with District of Columbia v Heller, 554 US 570 (2008), and McDonald v Chicago, 561 US 742 (2010), cf. Rogers v Grewal, 140 S Ct 1865, 1867 (2020) (Thomas, J., dissenting); (2) if so, whether intermediate or strict judicial scrutiny applies in this case; and (3) whether the University of Michigan's firearm policy is violative of the Second Amendment, considering among other factors whether this policy reflects historical or traditional firearm restrictions within a university setting and whether it is relevant to consider this policy in light of the University's geographic breadth within the city of Ann Arbor.

The appellant's brief is due on January 1, 2021.

 

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NEW JERSEY

Association of New Jersey Rifle & Pistol Clubs, Inc., Blake Ellman, and Alexander Dembowski v. Gurbir Grewal, Patrick J. Callahan, Thomas Williver, and James B. O'Connor.  

New Jersey enacted a ban on the possession of any firearm ammunition magazines capable of holding over ten (10) rounds.

On June 13, 2018, a lawsuit was filed in the United States District Court for the District of New Jersey, on behalf of ANJRPC and several New Jersey residents, challenging the new magazine ban on Second Amendment, Takings Clause, and Equal Protection Clause grounds.

On June 21, 2018, the plaintiffs moved for a preliminary injunction.  Briefing was completed on July 9, 2018.  Following an evidentiary hearing, post-hearing briefing, and oral argument, the District Court denied the motion on September 28, 2018.

The plaintiffs appealed to the United States Court of Appeals for the Third Circuit, moved for an injunction pending appeal, and moved for expedited briefing.  The Third Circuit granted the motion for expedited briefing, and briefing concluded by November 2, 2018.  The Court of Appeals denied the motion for an injunction pending appeal without prejudice.  Oral argument was held on November 14, 2018 and November 20, 2018.  On December 5, 2018 the Third Circuit panel affirmed the District Court.  Plaintiffs petitioned for rehearing en banc, which was denied on January 9, 2019.

The defendants moved then for summary judgment in the United States District Court.  The United States District Court granted the motion for summary judgment.

The plaintiffs appealed to the United States Court of Appeals for the Third Circuit Briefing was completed and oral arguments were held on June 16, 2020.  On September 1, 2020, the United States Court of Appeals for the Third Circuit affirmed the District

Court's grant of summary judgment in favor of the State and its denial of the applicants' cross-motion for summary judgment.

The plaintiffs petitioned the court for en banc review.  The Court requested briefs from both parties. The petition was denied on November 25, 2020.

The plaintiffs are considering our options to appeal this case further.

 

In the matter of the application of "John Doe.

The applicant's attorney informs as follows:

The applicant is appealing the denial of a firearms purchaser identification card and a permit to purchase a handgun.  The applicant is challenging "an erroneous rule of law that New Jersey judges have recently been following which effectively eviscerates New Jersey's statutory restoration of rights process."

The Superior Court of New Jersey expunged an erroneous record of mental health relating to the applicant, which would otherwise have served as a firearms disqualifier.  Pursuant to New Jersey law, the expungement restores such firearms rights.  The expungement "deems the commitment not to have happened, and a person obtaining such an order may answer any inquiry in the negative, including on firearms permit applications.  However, when a New Jersey firearms permit is applied for, the resulting background check generates an indication that an expunged record exists even though it does not provide the substance of the record."

Based on that indication of an existing expunged record, the applicant's permit applications were denied.

On appeal to the Superior Court, the State moved to open up the expunged record to use against the applicant.  The State of New Jersey is relying on a 2009 trial court opinion to justify the use of the expungement record as a reason to deny firearms permits.  In re J.D., 407 N.J. Super. 317 (Law Div. 2009).  That case held that "although a person obtaining an expungement order may answer inquiries in the negative, an applicant for a firearms permit waives the expungement for the purposes of the application and thus the underlying information may be used against him."  Id.

However, In re J.D. "has been impliedly overruled/superseded by the 2014 promulgation by the New Jersey Supreme Court of a form and instruction packet which explicitly recognizes that the expungement statute, and entry of an expungement order by the court, is intended to effect a restoration of firearms rights."

On April 13, 2020, the State filed a motion to reopen the expungement records.  The applicant filed his brief in opposition on May 18, 2020.  The motion was argued on June 29, 2020.  The court granted the State's motion.

Trial has been set for March 31, 2020.

 

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NEW YORK

Lambert Henry v. County of Nassau, Nassau County Police Department, Thomas Krumpter, Patrick Ryder, Marc Timpano, Adam Fischer, Stephen Triano, Jeffrey Kuchek, Mark Simon and Jeffrey Toscano.

The applicant's attorney has provided a memorandum of law which relates the following:

The applicant is a retired law enforcement officer who seeks a declaratory judgement, injunctive relief and monetary damages in regard to the revocation of his pistol permit.  Causes of action and claims under the Second Amendment, Monell liability, 42 U.S.C. §1981, and 42 U.S.C. §1983 were apparently raised in the complaint.

On October 20, 2014, the Nassau County Sheriff's Office entered the applicant's residence to serve an ex parte order of protection.  The order did not include any provision regarding the removal of firearms.  The order of protection was dismissed days later.

Despite these facts, Nassau County subsequently revoked the applicant's pistol license.  As a result of that license revocation, the applicant also lost his right to possess long arms in Nassau County.

Nassau County claims the authority to revoke a pistol license "at any time  …  for any reason" under Penal Law § 400.00(11).  The applicant disputes this and argues that revocations are limited to "a series of specific occurrences clearly set forth in Penal Law § 400.00(11)(a)."

On November 9, 2017, the applicant filed a complaint in the United States District Court for the Eastern District of New York.  On March 22, 2018, discovery commenced.  The defendants filed a motion to dismiss on August 12, 2019.  On July 26, 2019, the applicant filed a memorandum of law in opposition to defendants' motion to dismiss.  On March 3, 2020, the court granted the defendants' motion to dismiss.

On March 20, 2020, the applicant filed a timely notice of appeal with the United States Court of Appeals for the Second Circuit on Second Amendment grounds because the lower court applied intermediate scrutiny, when it should have applied strict scrutiny, including to ownership of firearms within the home.  Among other statutory misinterpretations,

…  the Court falsely equivocated a home premise license to a concealed carry license with a hunting/target restriction. Not only is this a false equivalent, but it also ignores the different standards of issuance in NYPL § 400.00. The concealed carry license requires a showing of proper cause, while a home premise license is 'shall issue.' By eliminating the home premise license, Nassau County has required a showing of a proper cause for all licenses in the County, allowing the Defendants to more easily effectuate its policy of handgun ownership determent.

On May 12, 2020, the applicant filed his brief. On June 16, 2020, the defendants filed their brief. On July 21, 2020, the applicant filed his reply brief.  Oral argument before the Second Circuit took place on October 14, 2020.  The parties await the Court's decision.

 

Richard A. Huber v. James P. O'Neill, Jonathan David, Michael Barreto, and the New York City Police Department.

The applicant's attorney informs as follows:

The New York Police Department refused to renew the applicant's restricted carry handgun license.

On December 1, 2019, the applicant filed a verified petition in a hybrid Article 78 proceeding and declaratory judgement action, in the New York Supreme Court, County of New York, on a number of grounds, alleging due process and Freedom of Information Law violations by the New York Police Department.

The New York Police Department denied the applicant the right to review the evidence used against him and denied the applicant's attorney access to evidence needed for the applicant's administrative appeal.

At the final agency appeal, the New York Police Department asserted new grounds for denying the applicant's handgun renewal application.  These new grounds were materially different from the grounds the New York Police Department originally asserted to deny the applicant's renewal of his handgun license.  Pursuant to the New York Police Department's rules for administrative appeals, the applicant cannot challenge these new grounds administratively, nor can the applicant challenge these new grounds in court because judicial review is strictly limited to the administrative record.

The applicant filed a Freedom of Information Act request, requesting, amongst other things, the New York Police Department's instructions to its staff about issuing carry handgun licenses.  The New York Police Department has responded by asserting that at all times its policies for granting permits remained the same.

On February 20, 2020, the applicant filed an amended petition, adding a 42 U.S.C. §1983 claim and a §1988(b) attorney's fee claim.  On May 4, 2020, New York City filed a motion to dismiss and an answer, arguing are that the applicant did not possess cognizable federal claim as "neither the Second Amendment nor Due Process Clause applied to a handgun licensee in New York City."  The applicant responded on May 26, 2020,

…  asking the Court to take judicial notice of NY Penal Law §400 (4-a) and 38 R.C.N.Y. §5-07 (e) (Docket No. 46-50). Under the two statutes, Mr. Huber had the right to know the reasons his licensed was denied. As set forth by 38 R.C.N.Y. §5-07 (e), Mr. Huber additionally had the right to make an administrative appeal with the NYPD. However, NYPD violated Mr. Huber's rights under the two statues. NYPD had: given Mr. Huber only conclusory reasons for denying his handgun renewal license; denied [the applicant's attorney] access to evidence which could have explained the conclusory reasons; and after [the applicant's attorney] made an administrative appeal of the reasons, the NYPD changed the reasons.

On November 4, 2020 the Court dismissed Mr. Huber's case. It did so on the ground that Mr. Huber had no constitutional rights regarding the renewal of his handgun license. Meanwhile, even if Mr. Huber arguably had no constitutional rights his case should not have been dismissed. Mr. Huber possessed rights under New York State law and local law which the Court did not acknowledge.

The applicant's attorney will file a notice of appeal and will discuss a possible appeal with the applicant.

 

Hunter Sports Shooting Grounds, Inc. v. Brian X. Foley, Steve Fiore-Rosenfeld, Kevin T. McCarrick, Kathleen Walsh, Connie Kepert, Carol Bissonette, and Timothy P. Mazzei, and the County of Suffolk.

The applicant's attorney informs as follows:

Suffolk County has operated a trap and skeet shooting range in Suffolk County, New York, since 1963 on County owned land.  The applicant, Hunter Sports Shooting Grounds, Inc., has a license to operate the trap and skeet shooting range as the County's concessionaire.

In 1987, the Town of Brookhaven passed a noise ordinance that prohibits the operation of the property as a trap and skeet range.  Suffolk County also passed a noise ordinance, but it specifically exempts the County shooting range.

The Town of Brookhaven has been trying to shut down the applicant's shooting range based on alleged violations of its noise ordinance.

To date, 89 summonses for violating the noise ordinance have been dismissed and one-the first trial-resulted in a conviction.  Approximately 150 summonses for violating the noise ordinance are pending.  The applicant had to defend each individual summons at various trials in the District Court.

In January 2007, the applicant filed a declaratory judgment action in the New York Supreme Court, County of Suffolk, seeking damages, including attorney's fees pursuant to 42 U.S.C. § 1983, and injunctive relief.

The action has continued since then, with the matter being considered by the District Court, the Supreme Court and the Appellate Division.  The parties have engaged in extensive motions practice and appeals throughout these years.

The issue is whether the applicant's range, located in Suffolk County, has the right to continue use as such despite the noise ordinance passed by the Town of Brookhaven.  The applicant's attorney argues that the Suffolk County noise ordinance-which specifically exempts the County shooting range-"should trump the Town's regulation" and that the Town of Brookhaven has deprived the applicant

…  of vested property rights, effecting a 'taking' of Hunter Sport's property interests, in violation of its rights of substantive and procedural Due Process and Equal Protection of the laws under Articles 5 and 14 of the United States Constitution, 42 U.S.C. Section 1983, and Article I Section 6 and 7(a) of the New York State Constitution.

On April 10, 2018, the applicant filed a motion for summary judgment on some of the causes of action.  On May 17, 2018, the County of Suffolk filed an affirmation in support of the applicant's motion for summary judgment.  On May 17, 2018, the defendants filed their memorandum of law in opposition.  On September 14, 2018, the applicant's motion for summary judgment was denied.  On October 18, 2018, the applicant simultaneously moved for leave to reargue, a stay of proceedings pending appeal, and a notice of appeal.  The court denied the applicant's motions.

Trial commenced on January 30, 2019 and concluded on February 5, 2019.  On June 14, 2019, the applicant filed its post-trial memorandum.

On November 21, 2019, the Court ruled against the applicant, dismissing all of the applicant's causes of action.

The applicant filed a notice of appeal in the Supreme Court, Appellate Division, Second Department.  On March 13, 2020, the Appellate Division dismissed the appeal "'as no appeal or cross appeal lies from a decision,' but only from a judgment."  The applicant subsequently refiled the notice of appeal and has six months to perfect the appeal.  As of December 1, 2020, the applicant informed that it still had time to file its appellate brief.

 

New York State Rifle & Pistol Association v. Beach.

New York requires those wishing to carry firearms outside the home to obtain a license to do so, which it will issue only upon a showing of "proper cause."  While the Second Circuit's decision in Kachalsky v. County of Westchester upheld this requirement, this litigation is designed to prompt reconsideration of that opinion in light of the DC Circuit's decision in Grace.

On January 31, 2018, a lawsuit was filed in the United States District Court for the District of New York challenging New York's concealed carry restrictions.  On March 26, 2018, the defendant's filed a motion to dismiss, which the District Court granted on December 17, 2018.  The applicant appealed to the United States Court of Appeals for the Second Circuit.  The opening brief was filed March 10, 2019.

On August 28, 2019, the United States Court of Appeals for the Second Circuit stayed the case pending a decision in the New York State Rifle and Pistol Association, et al v. City of New York, et al. case.  On August 26, 2020, the United States Court of Appeals for the Second Circuit issued a summary order affirming the judgement of the District Court.

The applicant plans to file a petition for certiorari filed by mid-December 2020.

 

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OHIO

Erin Gabbard, Aimee Robson and Dallas Robson, Benjamin Tobey, and Benjamin Adams v. Madison Local School District Board of Education and Lisa Tuttle-Huff.

The applicant is the Madison Local School District Board of Education in Butler County, Ohio. The applicant's attorneys inform as follows:

Between April and June of 2018, the Madison Schools Board of Education adopted a resolution adopting a firearms authorization policy, which permits certain trained staff members to carry concealed firearms on school grounds.

On September 12, 2018, "a small handful of residents, backed and funded by Everytown for Gun Safety  …  filed a lawsuit to prevent the implementation of this policy" in the Butler County Common Pleas Court.

On October 10, 2018, the applicant filed a partial motion to dismiss on the complaint's public records count.  On October 31, 2018, the plaintiffs filed a motion for preliminary injunction regarding the implementation of the firearms authorization policy.  The applicant replied to this preliminary injunction on November 21, 2018.

The applicant's attorney informs:

The legal question in this case is whether Ohio law permits local boards of education to allow employees who are authorized by the board and licensed to carry a concealed firearm to conceal carry on school grounds. In their complaint, the Plaintiffs contend that a statute concerning security personnel, which requires police academy training, applies to any employee who is authorized to carry firearms. Madison Schools disagrees, and follows the Ohio Attorney General's (now Governor's) written opinion regarding the interpretation of the statute.

This case has a widespread impact because the Plaintiffs (backed by Everytown for Gun Safety) are seeking to prohibit the authorization of conceal carry by school staff who are not trained as peace officers. This case is a case of first impression in Ohio, and would therefore have a chilling effect on similar policies throughout the state of Ohio.

More generally, the Plaintiffs have attacked the sufficiency of conceal carry and other tactical response training (for example, FASTER Saves Lives training).  This case could have widespread impact on whether courts in other states would support efforts by local school boards to authorize concealed carrying of firearms by school staff who have received concealed carry and other tactical response training.

A consolidated trial on the merits was scheduled for February 25, 2019.

The final pretrial conference occurred on February 11, 2019.

On February 22, 2019, the Butler County Common Pleas Court granted in part and denied in part the defendants' motion for protective order.

The defendants filed a summary judgement motion on February 1, 2019.  The plaintiffs also filed a summary judgement motion.  The hearing was held on February 25, 2019.  On February 28, 2019, the Court granted the defendants' motion for summary judgment and denied the plaintiffs' motion for summary judgment.

Madison Local School District successfully defended the lawsuit following a consolidated hearing on the parties' motions for summary judgment and trial on the merits. On February 28, 2019, the Butler County Court of Common Pleas ruled in Madison's favor, granting our motion for summary judgment. Ultimately, the Court held that under Ohio law, Madison is permitted to authorize individuals to carry a firearm on school grounds.

On March 26, 2019, the plaintiffs filed their notice of appeal to the Twelfth District Court of Appeals, Ohio.  On June 14, 2019, the plaintiffs-appellants filed their merit briefs.  "The plaintiffs-appellants focus on an interpretation of R.C. 109.78(D), which plaintiffs-appellants assert requires individuals authorized to carry a firearm on school property to complete police academy training. This is largely the same argument that the plaintiffs-appellants made at summary judgment."  On July 12, 2019, the applicant filed its brief in opposition.  The plaintiffs-appellants reply brief was filed on July 22, 2019.

The Ohio Attorney General and the Buckeye Firearms Foundation have both filed amicus briefs in support of the applicant.  On the other side amicus briefs have been filed by Professor Peter M. Shane and "Experts in School Safety and Firearms Training."

[O]n March 30, 2020, the Twelfth District Court of Appeals issued a split decision that, in part, overturned the Butler County Court of Common Pleas' decision. The Twelfth District majority concluded that Ohio law requires a school district that chooses to arm its administrators, teachers, and support staff may only do so if those individuals have completed basic peace officer training (a 728-hour police academy) or have twenty years' experience as a police officer. The dissenting judge recognized that the statute relied upon by the majority-Ohio Revised Code 109.78(D)-only applied to special police officers, security guards, and other positions of a similar capacity.

On May 14, 2020, the Madison Local School District filed their memorandum in support of jurisdiction with the Ohio Supreme Court. The Ohio Attorney General filed an amicus brief in support of the Madison Local School District.  A coalition of 11 school districts across Ohio that have armed staff members also filed an amicus brief in support of the Madison Local School District.  Everytown for Gun Safety filed their memorandum opposing jurisdiction on June 12, 2020.  On August 4, 2020, the Ohio Supreme Court accepted the case.

On August 6, 2020, the applicant filed a motion to stay the decision of the Twelfth District Court of Appeals, which the Ohio Supreme Court granted on August 26, 2020.  This order paused the Court of Appeals' decision, allowing Madison's Firearms Authorization Policy to remain in effect until after the Ohio Supreme Court decides the case.

The parties have engaged in substantial briefing of the case.  Oral arguments have been scheduled for January 12, 2021.  The applicant will split its oral argument time with the Ohio Attorney General.  The Court most likely will issue an opinion in the summer of 2021.

 

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OREGON

Lucas Burwell, Michelle Yarbrough, Katherin Kirkpatrick; and Christopher S. Johnson; and M.S., by and through the custodial parents, Kumiko Schow and Glenden Heagy v. Portland School District No. 1J by and through the Portland School Board, an Oregon public school entity; and Guadalupe Guerrero in his official capacity as Superintendent of Portland School District No. 1J.

The applicants inform as follows:

The Portland Public Schools system ("PPS") organized demonstrations in favor of gun control.  The PPS superintendent ordered staff to organize the students in these demonstrations.  The PPS has also passed a formal resolution calling for a ban on the manufacture, sale, and possession of all semi-automatic weapons.

Oregon educational regulations provide that "[t]he ethical educator, in fulfilling obligations to the student, will…[r]efrain from exploiting professional relationships with any student for personal gain, or in support of persons or issues." OAR 582-020-0035(1)(b) (emphasis added).

The applicant suspects widespread violations of this regulation.

Furthermore, pursuant to Or. Rev. Stat. §294.100, education funds must be spent for education.  "It is unlawful for any public official to expend any moneys in excess of the amounts provided by law, or for any other or different purpose than provided by law."  Id.

Partisan political spending by public officials are unlawful.

No public employee shall solicit any money, influence, service or other thing of value or otherwise promote or oppose any political committee or promote or oppose the nomination or election of a candidate, the gathering of signatures on an initiative, referendum or recall petition, the adoption of a measure or the recall of a public office holder while on the job during working hours.

Or. Rev. Stat. §260.432(2).

Initiative Petition No. 43 is expected to be put on the Oregon ballot this fall, effectively outlawing most modern semi-automatic rifles.  As of this time, the initiative has not yet qualified to appear on the ballot.  The applicants expects further violations of Or. Rev. Stat. §260.432(2).

The applicant requested that PPS disclose records under Oregon's Public Records Act concerning the aforementioned activities to determine whether PPS is engaged in partisan and ideological activities.  PPS is allowed, under Oregon law, to charge a fee for the production of such records.  The applicant attempted to get the fee waived as public interest is involved, but PPS demanded payment to release these records.  The applicant provided the funds demanded.

The first batch of records arrived on July 19, 2018.  They are: "utterly non-responsive and a waste of time.  …  [T]hey do not concern "Second Amendment Subjects" as defined in the request at all, much less constitute communications between the Portland Police Bureau and PPS."  The applicant has demanded production of responsive documents and that the costs of producing the non-responsive material be subtracted from the costs demanded by PPS for production.

When provided with responsive materials, the applicant will analyze the records produced, and prepare a written analysis as to whether further litigation should be pursued.  The applicant will provide electronic copies of such materials.

The applicant cites Galda v. Rutgers, 772 F.2d 1060 (3d Cir. 1985), Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943), International Association of Machinists v. Street, 367 U.S. 740, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961), Railway Clerks v. Allen, 373 U.S. 113, 10 L. Ed. 2d 235, 83 S. Ct. 1158 (1963), Abood v. Detroit Board of Education, 431 U.S. 209, 52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977), Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435, 80 L. Ed. 2d 428, 104 S. Ct. 1883, 52 U.S.L.W. 4499 (1984), Wooley v. Maynard, 430 U.S. 705, 715, 51 L. Ed. 2d 752, 97 S. Ct. 1428 (1977), Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, , 85 L. Ed. 2d 652, 105 S. Ct. 2265, 53 U.S.L.W. 4587, 4594 (1985), Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976), Federal Election Comm'n. v. National Conservative Political Action Committee, 470 U.S. 480, 84 L. Ed. 2d 455, 105 S. Ct. 1459, 53 U.S.L.W. 4293 (1985), First National Bank of Boston v. Bellotti, 435 U.S. 765, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978), as potentially favorable precedent for a potential federal lawsuit.

The applicant informs:

Since my last report, in which PPS had finally made an initial, worthless production, the District Attorney resolved my appeal by decision issued September 7, 2018 …, decreeing that all documents must be produced by December 6th.  …

I have reviewed most of the material produced  … .  From what I have seen so far, it seems clear that:

•           The PPS e-mail system is awash with left-wing news feeds rife with anti-gun propaganda, and many PPS educators subscribe to feeds from anti-gun organizations through their PPS e-mails.

•           There is almost no hint of any dissenting voices among PPS staff, and very few parent complaints.

•           On March 6th, PPS adopted a resolution banning all semi-automatic weapons, with close coordination with local Democratic politicians, the teacher's union, and associations of school administrators.

•           Anti-gun instructional materials and guidance for student activists were prepared.

•           The PPS Superintendent articulated his "expectation" that every school would facilitate and support the March 14th demonstrations, while carefully asserting that PPS was without power to encourage students to walk out on their own.

•           The anti-gun effort extends all the way down to kindergarten.

In short, the materials begin to support the federal case I am hoping to develop, asserting that forced taxpayer funding of these sorts of activities violates the First Amendment rights of parents (and threatens their Second Amendment rights).  There might be also be pendant state law claims to recover funds expended for "another or different purpose than provided by law" (ORS 294.100(1)).

Last summer's Supreme Court decision in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), further strengthens the First Amendment arguments presented.

Materials received in response to the applicant's record request prove that the PPS organized, supported and required each individual school to engage in District-wide anti-gun protests which were then repeatedly and falsely claimed to be the product of student initiative.  The Portland Public Schools have continued to provide additional responsive documents but have yet to provide everything requested.

On March 13, 2019, the applicants field a lawsuit in the United States District Court

for the District of Oregon, Portland Division, on behalf of certain parents, challenging the actions of the Portland Public Schools as a violation of First Amendment Rights, because of forced subsidization of speech and compelled speech, and 42 U.S.C. § 1983, and also as a violation of the Oregon Public Records Act.  The complaint seeks a declaratory judgment, a permanent injunction, and attorney fees and costs.

The defendants filed a motion to dismiss.  The applicants filed a response to the motion to dismiss on June 17, 2019.  The defendants filed a reply and briefing has now been completed on the defendants' motion to dismiss.  The magistrate judge refused the requests of both sides for oral argument.

[O]n August 23, 2019, Magistrate Judge Julie Russo dismissed the First Amended Complaint (her Findings and Recommendations are attached).   The gist of her ruling was that with respect to the claim for forced subsidization of speech, that the children were in substance third-party contractors employed by the government, thus invoking the "government speech" doctrine.  Magistrate Russo recognized, however, that the complaint had alleged that the students were private parties, but concluded, for reason not clear to me, that such allegations were not sufficient, and offered a chance to replead them.  It is not clear to me how the allegations were deficient, because the truth of the matter is that PPS was propagandizing the students with a message it desired to promote, and the students were private actors, which is precisely what the complaint says.  (See also Objection to Findings and Recommendations, at 18-22.) I have attached a copy of the First Amended Complaint for reference.

With respect to the claim for compelled speech by the students themselves, the Magistrate Judge argued that the level of compulsion alleged was insufficient, in that students did not suffer any punishment for not participating in the demonstrations.  This is true, but an altogether different view of "compulsion" than that which applies in other First Amendment contexts.

On September 6, 2019, the applicant filed an appeal to the United States District Court.  On September 19, 2019, Portland Public Schools filed a response.

On April 30 2020, the United States District Court issued an order and opinion

…  which adopts the "student demonstrations are government speech" rationale of the Magistrate Judge.  In many ways, her opinion is even worse.  It does not matter if the speech is undertaken in violation of state law; it does not matter if the speech is not germane to the mission of the particular officials; and it does not matter what motive the officials have.  All that matters, according to Judge Immergut, is that the program was undertaken by government officials, so there is no First Amendment protection at all.

The opinion makes it clear that school boards are free to brainwash children and enlist them in partisan political crusades, with the public monies constitutionally spent for "government speech".

Final judgment was entered May 15, 2020 dismissing the complaint.  The applicant timely appealed to the United States Court of Appeals for the Ninth Circuit.  Briefing is now complete.

 

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PENNSYLVANIA

Anderson v. City of Pittsburgh.

The City of Pittsburgh passed a large capacity magazine ordinance.  The applicant challenged the ordinance under the state's preemption statute in state court. The applicant won at the trial level.

The City of Pittsburgh appealed. The case was argued on October 14, 2020.  The parties are awaiting a decision from the court.

Doe, et al. v. Wolf, et al

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

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

On January 30, 2017, the defendants moved to dismiss the complaint, arguing that the plaintiffs have no Second Amendment rights because they were declared mentally ill, and, therefore, cannot challenge the process by which they were declared mentally ill, and were divested of their Second Amendment rights.  On February 13, 2017, the plaintiffs filed an opposition and a sur-reply to the defendants' reply.  Oral argument was held before the Court on May 16, 2017.  On August 8, 2017, the Court, while not reaching the State's motion to dismiss, did grant leave under seal to allow additional fact investigation to the plaintiffs.  On August 23, 2017, the Court entered an order granting in part and denying in part defendant's motion to dismiss.  The Court dismissed several defendants but rejected all of defendant's arguments as to the sufficiency of the pleadings, suggesting in many footnotes that if the allegations in the complaint are true, there may be a due process violation and finding that the reporting of Section 302 commitments to NICS might permanently deprive citizens of their firearms rights without an adequate available remedy.

On March 26, 2018, the Court entered an amended scheduling order setting the close of fact discovery at July 30, 2018; setting the date for the close of expert discovery at September 24, 2018; setting the dispositive motion deadline at November 12, 2018; setting the final pretrial hearing for December 17, 2018; and setting a trial date of January 7, 2019. With the consent of Defendant, a new plaintiff was substituted for one of the original plaintiffs.

Discovery has revealed that Pennsylvania State Police began reporting Section 302 and other mental health commitments to NICS in 2013, without specific legal authority.  As a result, state restoration procedures cannot restore firearms rights because they cannot affect federal disqualification.

On January 10, 2019, the United States District Court for the Eastern District of Pennsylvania ruled adversely on.

The applicants appealed to the United States Court of Appeals for the Third Circuit.  The case was fully briefed and was argued on December 9, 2019.

After he appeal have been filed, the BATFE certified the state's restoration process, which then effectively provided the plaintiffs with post-deprivation due process. The United States Court of Appeals for the Third Circuit held that these post-deprivation proceedings were enough to satisfy due process clause and affirmed.

The Gun Range, LLC v. Philadelphia Zoning Board of Adjustment.

Philadelphia's zoning laws only allow the opening of a gun shop as-of-right in 3.74% of the City's acreage.  The Gun Range, LLC has operated an indoor range in the city of Philadelphia since 1985.  In March 2015, the Gun Range, LLC applied for a permit to open a gun shop.  The Zoning Board denied the application in October of 2015.  The Gun Range appealed to the Court of Common Pleas, alleging the ordinance was improperly applied, was preempted, and violated the Second Amendmentas well as under Article 1, Section 21 of the Pennsylvania Constitution.  The Court of Common Pleas affirmed the Zoning Board's decision on August 9, 2016, addressing the ordinance and preemption claims, but without addressing the Right to Keep and Bear Arms claims.

An appeal was filed with the Commonwealth Court.  On May 7, 2018, the Commonwealth Court affirmed the first two holdings, but reversed and remanded on the Second Amendment claim because there was no analysis, with an order for the Court of Common Pleas to analyze the Second Amendment claim and Article 1, Section 21 of the Pennsylvania Constitution on a closed record.

A petition for certiorari was filed with the Pennsylvania Supreme Court.  On October 23, 2018, a petition for certiorari was denied by the Pennsylvania Supreme Court.

On June 30, 2020, an NRA amicus brief in support of the applicant was filed in the Court of Common Pleas.  The matter remains pending in the Court of Common Pleas to resolve the Second Amendment claim.  Oral argument on the Second Amendment claim is scheduled for December 30, 2020.

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TEXAS

Robert Arwady and Samuelia Arwady v. Tommy Ho, Jane Doe Ho, and the United States of America.

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

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

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

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

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

He began to sell it online, but took great care; he would only transfer via an FFL after a background check. This is precisely how [BATFE] advises private sellers to handle a transaction if they desire the greatest legal security.

[BATFE] noticed his online listings, and made an undercover approach. Asked to sell a gun without going thru an FFL, Mr. Arwady refused. Asked to purchase a gun not in his inventory and resell that, he again refused.

In July of 2009, the BATFE executed search warrants on Mr. Arwady's business, residence and vehicle, seizing 165 firearms, and subsequently commencing civil forfeiture proceedings against the firearms.  The civil forfeiture action was dismissed on mutual agreement of the parties after the Court denied the government's summary judgment motion.

In February of 2014, a federal grand jury in Houston returned an eight count indictment against Mr. Arwady, which included a "notice of forfeiture," for 162 of the 165 firearms.  The BATFE "secured an indictment by not informing the grand jury of the Firearm Owners' Protection Act provision that liquidating a collection does not require a dealer's license."  Trial was set for October 19, 2015.

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

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

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

In 2017, the applicant filed a claim under the Federal Tort Claims Act and a Bivens action, seeking damages for false arrest, trespass to chattels, and takings without compensation.

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

 

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

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

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

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

The Department of Justice denied Mr. Arwady's claims on January 24, 2018.  The first amended complaint was filed in the United States District Court for the Southern District of Texas, Houston Division on or about January 24, 2018 alleging causes of action arising under the Federal Torts Claims Act and the Fourth Amendment to the United States Constitution.

On or about May 7, 2018, the government responded with two motions to dismiss, which the applicant opposed on or about May 28, 2018.  On March 26, 2019, the Court dismissed the Bivens claim and the false arrest claim, based on the statute of limitations, but allowed the negligent storage claim to move forward.

The district court, after holding the motions under advisement for one week short of a year, dismissed the case, ruling that (1) the statute of limitations began running at the seizure of plaintiff's firearms in 2009 and plaintiff's arrest in 2014, rather than at his acquittal in 2015.

[The Court's] reasoning was:

Bivens: This is a constitutional tort, but it takes the state statute of limitations, whatever limitation is the "best fit." This case could be seen either as malicious prosecution (statute begins to run at acquittal) or as unlawful imprisonment (statute begins to run at arrest). The court ruled that this case was more like unlawful imprisonment and therefor the statute ran years ago, in fact, ran out before Mr. Arwady went to trial and was acquitted.

Federal Tort Claims Act: FTCA originally did not allow suit for damage to impounded goods. Congress then amended this to allow suit for damage to goods seized for forfeiture. Mr. Arwady's guns were plainly seized for forfeiture: the government filed a forfeiture suit, which the court dismissed.

But, the district court here ruled, seized for forfeiture means seized only for forfeiture. Mr. Arwady's guns were seized for forfeiture and as evidence, so he cannot sue for damage to them.

The conduct of [BATFE] in this case (leaving grand jury uninformed of the exemption for a collector liquidating a collection, seizing an entire collection, damaging guns) is exactly what the Firearms Owners' Protection Act outlawed. If the district court Bivens ruling were to stand, a firearms owner falsely charged with GCA violations would have little remedy. If the government drags out the prosecution for longer than the two-year civil statute, the civil statute will run while the gun owner is still awaiting criminal trial.

The applicant filed a notice of appeal to the United States Court of Appeals for the Fifth Circuit.  The applicant filed his opening brief in October 2020.

 

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VIRGINIA

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

The applicants' attorney relates the following pertinent facts:

In May of 2016, the plaintiffs filed a nuisance claim in the Frederick County Circuit Court, Virginia against the applicants.  The plaintiffs served defendants in May of 2017.  The applicants' attorneys responded to the complaint.  On July 5, 2017, via an order issued by the Frederick County Circuit Court, the matter was stayed pending the outcome of the West Virginia case.  Another order further extending the stay was entered by the Court on February 5, 2019.

On September 15, 2020, after the parties mutually agreed to dismiss the case with prejudice, the Court entered an order doing so.

 

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WASHINGTON

Mitchell, et al. v. Atkins, et al.

On November 15, 2018, the National Rifle Association of America, the Second Amendment Foundation, and local activists filed a lawsuit on Second Amendment and Commerce Clause grounds in the United States District Court for the Western District of Washington, challenging a Washington State antigun initiative (I-1638) which had passed.  Among other things the law bans the sale of semiautomatic rifles and handguns to persons between 18 and 21 years old, and bans the sale of any semiautomatic rifle to a non-resident of the state.

In May of 2019, the plaintiffs defeated motions to dismiss based on the following arguments:  lack of standing, lack of harm, and that the interstate commerce clause does not protect Washington firearms dealers from Washington laws that burden them.

Subsequently, summary judgment motions were filed.  Oral argument was scheduled for August 18, 2020.  On October 31, 2020, the United States District Court for the Western District of Washington granted defendants' and intervenor's motion for summary judgment and denied the applicants' motion for summary judgment.  The applicants appealed the case to the United States Court of Appeals for the Ninth Circuit and filed their opening brief on November 25, 2020.

 

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WEST VIRGINIA

Ben and Diane Goldstein v. Peacemaker Properties, LLC, and Peacemaker National Training Center, LLC. West Virginia litigation.

The applicants' attorney relates the following pertinent facts:

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

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

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

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

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

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

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

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

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

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

W. Va. Code §61-6-23(c).

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

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

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

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

The Goldsteins appealed to the Supreme Court of Appeals of West Virginia.  Their brief was filed on December 12, 2017.  The applicants' response was filed on January 26, 2018.  On March 15, 2019, the Supreme Court of Appeals of West Virginia affirmed in part, reversed in part, and remanded.

The former attorney informs:

The Supreme Court has affirmed the Circuit Court's Order finding that the range protection statute is constitutional, that it does indeed bar the Goldsteins' request for an injunction and that the Goldsteins are not entitled to fees/costs as related to the discovery dispute.  However, the Supreme Court further reversed the Circuit Court's Order as related to any monetary damages that the Goldsteins may have suffered prior to the enactment of the range protection statute.  The case will be remanded to the Circuit Court for further proceedings on damages, if any.

The new attorney informs:

…  [T]he Supreme Court affirmed the lower court's dismissal of the nuisance claim seeking injunctive relief and its denial of the Goldsteins' fee petition and motion for sanctions against PNTC for alleged litigation misconduct.  However, the Court found that the Goldsteins had adequately pled a claim for money damages which claim accrued prior to the 2017 amendment of W.Va. Code § 61-6-23 and that such accrued nuisance claim for money damages was a vested property right which the WV Legislature could not eliminate by retroactive legislation. The Court therefor remanded the case to the Circuit Court to resume proceedings in the Petitioners' nuisance claim for money damages.

…  PNTC remains exposed to the Goldsteins' claim that its range constitutes a private nuisance and that the Goldsteins' claim that its range constitutes a private nuisance and that the Goldsteins should recover money damages for an alleged nuisance caused by the shooting range's operations regardless of PNTC's legal operations. Since the Supreme Court ruled that a nuisance claim seeking money damages constituted a vested property right which the WV Legislature could not retroactively bar, all shooting ranges in West Virginia have potential exposure as respects such claims which were vested as of the date on which the amendments to the WV Code were enrolled.

…  [A]dditional discovery will need to be conducted by the parties to determine inter alia, (a) whether the Goldsteins' nuisance claim is barred by the 4-year statute of limitations in effect for bringing this nuisance claim under W.Va. Code § 61-6-23 as the same stood on September 21, 2015 when their suit was filed; (b) the nature and extent of the nuisance being claimed; and (c) the extent of the damages allegedly incurred.

On February 3, 2020, the Circuit Court of Berkeley County, West Virginia issued a scheduling order, setting a discovery completion date of September 11, 2020, a pretrial date of October 5, 2020, and a trial date of October 26, 2020.

PNTC intends to file a motion for partial summary judgment seeking a ruling that the nuisance claim must be considered a temporary one based upon a non-retroactive application of the amendments to the range protection statute which were then effective July 3, 2017. As of that date all nuisance claims against ranges, whether for equitable relief or for damages, were eliminated by the legislature. Since the legislation affects the remedy only, there is no constitutional prohibition. Damages for a temporary nuisance in WV are based upon fair rental value rather than diminution in fair market value of the plaintiffs' property. However, other incidental economic and non-economic damages may be asserted, but arguably only through July 3, 2017.

A prior motion to dismiss by PNTC for failure to timely file the action (based upon PNTC's claim that range operations began in April of 2011 and not September of 2011 and thus the then 4-year statute of limitations barred suit) and for failure to join indispensable parties (the adjoining Shadow Hawk Defense Range and private ranges) was denied. The statute of limitations issue will again be raised at trial given that this is a factual dispute.

On December 14, 2020, the applicant's attorney informed that the parties have settled the litigation on confidential terms.

(In addition to this West Virginia litigation, in May of 2017, the plaintiffs also filed a nuisance claim against the defendants in Virginia.  On September 15, 2020, after the parties mutually agreed to dismiss the case with prejudice, the Court entered an order doing so.  See case description above.)

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