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ALASKA

John Sturgeon v. Bert Frost, in His Official Capacity as Alaska Regional Director of the National Park Service, et al.

The applicant's attorney relates the following pertinent facts:

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

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

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

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

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

Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit. No lands which, before, on, or after December 2, 1980,

are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units. If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly.

16 U.S.C. § 3103(c).

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

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

On October 25, 2016, oral argument on remand was held before the United States Court of Appeal for the Ninth Circuit.  The State of Alaska was also granted argument time as an amicus.  On October 2, 2017, the United States Court of Appeal for the Ninth Circuit ruled against the applicant.

On January 2, 2018, the applicant file a petition for certiorari with the United States Supreme Court.  Certiorari was granted by the United States Supreme Court.  On March 26, 2019, the United States Supreme Court, reversed and remanded, holding that:  (1) The Nation River is not public land for purposes of ANILCA; (2)  Non-public lands within Alaska's national parks are exempt from the Park Service's ordinary regulatory authority, and that the effect of that exclusion is to exempt non-public lands, including waters, from Park Service regulations; (3)  Navigable waters within Alaska's national parks are exempt from the Park Service's normal regulatory authority.

ANILCA, like much legislation, was a settlement. The statute set aside more than a hundred million acres of Alaska for conservation. In so doing, it enabled the Park Service to protect-if need be, through expansive regulation-"the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska." 16 U. S. C. §3101(d). But public lands (and waters) was where it drew the line--or, at any rate, the legal one. ANILCA changed nothing for all the state, Native, and private lands (and waters) swept within the new parks' boundaries. Those lands, of course, remain subject to all the regulatory powers they were before, exercised by the EPA, Coast Guard, and the like. But they did not become subject to new regulation by the happenstance of ending up within a national park. In those areas, Section 103(c) makes clear, Park Service administration does not replace local control. For that reason, park rangers cannot enforce the Service's hovercraft rule on the Nation River. And John Sturgeon can once again drive his hovercraft up that river to Moose Meadows.

This matter may now be considered closed.

 

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CALIFORNIA

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 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.

In June 2017, the trial court issued 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 is currently making post judgment motions to reinstate the ban while the case is appealed. The case is now on appeal to the Ninth Circuit. The state filed its brief on July 15, 2019. Plaintiff's reply is due in September 2019.

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

In the aftermath of the Peruta en banc decision by the Ninth Circuit Court of Appeals, 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 Ninth Circuit.  The case was petitioned for en banc review. However, it was recently stayed pending the Young v. Hawaii appeal.

Rhode v. Becerra.

California's recently enacted ammunition sales restrictions, including requirements that all sales be conducted via face-to-face transactions, all ammunition sales be recorded with DOJ, 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 and Commerce Clause grounds.  Olympic Gold Medalist Kim Rhode and several ammunition retail businesses serve as plaintiffs.

California brought a motion to dismiss our Commerce Clause, Equal Protection, and federal preemption claims.  In June of 2018, the trial judge denied the State's motion to dismiss on all but the Equal Protection claim.  The case is currently in discovery.

 

Rupp, et al. v. Becerra..

This suit was filed in April of 2017, in response to two bills, both of which redefine California's "assault weapon" restrictions to include certain firearms that were previously required to be equipped with "bullet buttons." The lawsuit challenges California's "assault weapon" regulatory scheme as a violation of the Second Amendment, due process clause, and takings clause of the United States Constitution. The plaintiffs filed a motion for preliminary injunction to stay enforcement of the registration procedures. The defendants filed a motion to dismiss. Both motions were heard on December 15, 2017. Subsequently, the parties resolved the preliminary injunction by stipulation. The State's motion to dismiss was denied. Discovery has been completed. Summary judgment motions were filed by March 25, 2019 and a hearing occurred on May 31, 2019. The district court granted California's motion for summary judgment. Plaintiffs' are preparing an appeal to the United States Court of Appeals for the Ninth Circuit.

Mark Towns v. Raymond Harrell.

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

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

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

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

The applicant's attorney believes that the state's range protection law is not applicable because the range is not open to the public. The legal issues presented in this case include the doctrine of coming to the nuisance and the doctrine of exhaustion of administrative remedies.

Discovery is ongoing. On March 1, 2018, the plaintiff filed a second amended complaint with various counts alleging the applicant's violation of various sections of the Sacramento county code and the zoning code, public nuisance per se, trespass, extra hazardous activities, private nuisance, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. On March 5, 2018, the plaintiff filed a statement of damages in excess of $5,000,000.00. The applicant's attorney prepared a motion in limine on the grounds that declaratory relief is not available in a jury trial.

In the latest update the applicant's attorney informed that the applicant's homeowner's insurance, Nationwide Insurance, has agreed to provide coverage under a reservation of rights. Nationwide has appointed the applicant's attorney as Coomis counsel.

At a mandatory settlement conference the parties failed to settle the matter. The case is set for trial sometime in 2020.

Plaintiff's deposition was scheduled for July 22, 2019, but has been postponed by plaintiff's counsel. The applicant will file a motion to compel. The applicant has filed a motion for summary judgment and the parties are awaiting the court's ruling.

Ukiah Rifle and Pistol Club.

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.

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.

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COLORADO

Chambers, et al. v. City of Boulder..

The City of Boulder enacted an ordinance which prohibits the possession of so called "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. Boulder moved to dismiss. The motion has been fully briefed and oral argument occurred on April 30, 2019. The case is currently in discovery.

The People of the State of Colorado v. Dennis Roberts. .

On July 21, 1994, the applicant was charged with assault in Moffat County, Colorado. The applicant relates that this occurred after he came home from work, and his girlfriend was "sitting at his table half-naked with her ex-husband, doing drugs." The applicant told both to get out of his house. After refusing, the applicant proceeded to throw the ex-husband out of the house.

The applicant agreed to a plea bargain upon assurances by the Court that this conviction would not be recorded as "domestic violence." On August 2, 1994, the applicant pled guilty to misdemeanor "3rd Degree Assault" in Moffat County Court, Colorado.

During 2016-2017, on three occasions, the Colorado Bureau of Investigation denied the applicant's attempt to purchase firearms based on the August 2, 1994 conviction. According to the Colorado Bureau of Investigation, the conviction was for "Assault 3rd Degree," which is classified as a disqualifying "misdemeanor crime of domestic violence" under federal law. The applicant appealed the denials without success.

The applicant informs that he would never have accepted the plea bargain if he had known that his gun rights would be affected.

The applicant's attorney argues that the 1994 conviction was obtained in violation of due process and is subject to a collateral attack under Colorado law because the failure of the applicant to seek relief within the applicable time frame of the conviction was "the result of circumstances amounting to justifiable excuse or excusable neglect."

The applicant's attorney plans to file a post-conviction petition for relief in the County Court, and if necessary, seek review by the Colorado Supreme Court. The applicant's attorney also plans to commence an administrative appeal of the denials by the Colorado Bureau of Investigation and, after exhausting his administrative remedies, to appeal the denials to the Moffat County District Court alleging abuse of discretion. Appeals or petitions could ultimately be filed with the Colorado Court of Appeals, Colorado Supreme Court, and United States Supreme Court.

At the May 3, 2018 board of trustees meeting, the trustees requested that the Secretary write to the applicant's attorney with a request that the attorney address the following questions prior to the fall 2018 board of trustees meeting: (1) Against whom specifically was the assault committed-the girlfriend or the ex-husband? (2) Did the applicant plead guilty to an assault on the girlfriend? (3) Is the applicant listed as a prohibited person in the NICS system? (4) Is the Colorado Bureau of Investigation the NICS point-of contact for Colorado for firearms transfers?

(1) "Against whom specifically was the assault committed - the girlfriend or the exhusband?"

RESPONSE: The girlfriend, but no "assault" actually happened, that was just the charge for which he was persuaded to plea on assurances by the judge that it was the "least painful way" to get out of the situation" because a plea to third degree assault would be "no different than if you got in an argument with a neighbor about dogs." Nothing was ever said about legal consequences for "domestic assault." After Mr. Roberts threw the man out of the house, the girlfriend started throwing dishes and other objects at him, and he simply looked at her and said: "If you were a man, I'd throw you out of here, too." (Before arraignment, the "girlfriend" had been persistently calling the prosecutor's office to try and correct the record and ask that the charges be dropped only to be informed it was a matter for the state and the stated wanted to prosecute).

(2) "Did the applicant plead guilty to an assault on the girlfriend?"

RESPONSE: Yes - see above. The plea was apparently coerced in violation of due process. If he had known this would be considered "domestic violence," Mr. Roberts would never have pled guilty and would have taken the case to trial.

(3) "Is the applicant listed as a prohibited person in the NICS system?"

RESPONSE: Yes.

(4) Is the Colorado Bureau of Investigation (CBI) the NICS point-of-contact (POC) for Colorado for firearms transfers?"

RESPONSE: Yes.

The petition for post-conviction relief was filed June 7, 2018. On July 27, 2018, the State filed a response to the petition for post-conviction relief. On August 10, 2018, the applicant filed a reply brief.

On September 23, 2018, the County Court, Moffat County, Colorado, denied the applicant's motion of post-conviction relief on procedural grounds as being filed untimely and without justifiable excuse or excusable neglect.

 

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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 parties await the court's

Gilchrist County Sheriff's Office v. Deputy Jefferson Davis.

This case is one of the first cases to arise from a new Florida law, which came into effect on March 9, 2018, passed in the aftermath of the Parkland shooting.

On March 18, 2018, the applicant, Deputy Jefferson Davis, visited the Gilchrist County Sheriff's Office to see his girlfriend who was working as a dispatcher. The applicant was off duty and unarmed. During the visit, the applicant learned that his girlfriend was having an affair with another law enforcement officer at their agency. Upon discovering this information, the applicant "became highly upset, punched a file cabinet, kicked a door in at headquarters, and made statements that he wanted to shoot the co-worker who had been having and [sic] affair with his girlfriend."

Supervisory personnel met with the applicant and decided to have the applicant involuntarily committed for psychiatric evaluation under the Florida Baker Act which allows holding an individual for up to 72 hours. The applicant was transported to the mental health facility. After a brief interview with a psychiatrist, the applicant was informed that he did not meet Baker Act criteria, and was released. He was also given a discharge letter indicating he could return to work as a law enforcement officer.

However, the applicant was administratively suspended from duty as a law enforcement officer pending an Internal Affairs investigation. The Sheriff's Office also filed a petition for risk protection order. The petition for ex-parte risk protection order was granted by the Court. Per the Court's ex-parte order, all of the applicant's weapons, ammunition, and magazines were surrendered to the Sheriff's Office.

The Sheriff's Office attempted to block the applicant from accessing all witnesses who are employees of the Sheriff's Office, as well as blocking the applicant from accessing information pertaining to this matter, including all related public records request properly submitted under the Florida Sunshine Law. The applicant attorney filed a motion to compel discovery. The Court ruled in the applicant's favor, ordered some production of documents, and permitted discovery depositions to be taken of five employees of the Sheriff's Office.

The Court used a legally fabricated basis for renewal of a red flag order. There was no evidence of prospective harm to self or others in evidence. There were three psychiatrist statements that the applicant did not pose a risk of harm to himself or others, stating they are aware of his occupation and training and that he carried a firearm for work, and had access to firearms off duty.

As a result, the applicant has lost his employment and cannot gain employment as a police officer-even though he won a licensing hearing-because the red flag prevents him from being in possession of weapons.

An appeal has been filed on the standard to maintain a restraining order when there is no evidence of current or future threat. The case remains on appeal.

National Rifle Association of America v. Bondi. .

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

The State previously banned these adults from purchasing handguns, but it recently extended this ban to encompass long guns as well. Plaintiff argues that this ban violates both the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment.

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.

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IDAHO

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

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

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

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

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

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

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

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

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

The parties have reached a settlement agreement pursuant to which Ms. Nesbitt and Mr. Baker may, subject to local laws, carry firearms on U.S. Army Corps of Engineers properties. The United States Court of Appeals for the Ninth Circuit has accepted the settlement agreement. The permanent injunction issued by the Idaho federal district court declaring the Corps' regulation unconstitutional, remains in place, while the Corps amends the regulation.

Nicholas Lion v. Thomas E. Brandon.

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

The applicant, Mr. Nicholas Lion, who resides near Sandpoint, Idaho, sought to purchase a firearm silencer from a licensed dealer. The Form 4 was submitted to the BATFE in November of 2014. In late March of 2016, the application to transfer the silencer was denied. The denial was based on two charges against Mr. Lion in 1987: one charge of disorderly conduct under N.J. Stat. Ann. § 2C:33-2 and on one charge of simple assault under N.J. Stat. Ann. § 2C:12-1(a)(1) which, according to the BATFE made the applicant a prohibited person under 18 U.S.C. § 922(g) (1). Both of these charges stemmed from a single incident in July of 1987. No disposition is shown for either charge in the local court records.

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

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

Mr. Lion filed a pro se lawsuit against the BATFE in federal district court in Idaho. On the advice of counsel, on June 9, 2016, Mr. Lion voluntarily dismissed, without prejudice, the pro se lawsuit he had filed in federal district court.

The applicant's attorney tried to resolve the matter through the BATFE and NICS. BATFE informed that the applicant would have to prove that that charges were not misdemeanor crimes of domestic violence under § 922(g) (9) and did not make one a prohibited person under § 922(g) (1).

The applicant's attorney drafted a declaration by Mr. Lion, which had been requested by the BATFE, and prepared an extensive package of documents in support of the declaration. These materials were sent to the BATFE on July 14, 2017. The documentation provided the requested proof that neither charges, even if they had resulted in a conviction, would have disqualified the applicant form possessing a firearm.

The applicant's attorney also argued that

… [T]he relevant statute, 26 U.S.C. § 5812(a), is mandatory and requires ATF to approve a transfer unless the transferee is affirmatively shown to be disqualified. That statute provides that "Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law." (emphasis added). Thus, unless there is proof that receipt or possession of the silencer by Mr. Lion would place him in violation of law, the transfer must be approved. As matters stand, the burden of proof is being reversed. It is not an applicant's burden to show that he has never been convicted of a disqualifying crime or of a misdemeanor crime of domestic violence. Unless proof of such a conviction is in possession of ATF, the transfer must be approved.

Since a resolution with the BATFE could not be reached, on November 1, 2018, the applicant filed a lawsuit against the BATFE in the District Court for the District of Columbia to prevent the agency from reversing the burden of proof. The government subsequently agreed to settle the case by granting approval of the applicant's application to transfer the silencer. The applicant submitted a new application for transfer, because the dealer in possession of the particular silencer had changed. The case has been voluntarily dismissed without prejudice pursuant to a stipulation by both plaintiff and defendant.

Thereafter, ATF did, in fact, approve the new paperwork to transfer the silencer on March 15. However, it was subsequently discovered that the silencer had a cracked tube. New paperwork will have to be submitted and approved by ATF to get a replacement silencer transferred by the manufacturer to Mr. Lion. Accordingly, this matter is not yet resolved.

Should there be any problem with that-which is not expected-the case can be reinstated.

State of Idaho v. Nicholas Brian Sunseri.

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

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

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

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

The applicant entered a guilty plea to a misdemeanor crime of domestic violence in Idaho. No one informed the applicant that by accepting this plea deal, he would permanently be deprived of his Second Amendment rights.

When the applicant was informed of the consequences of his domestic violence conviction, after obtaining counsel, he moved to withdraw the guilty plea, showing "just cause" by claiming that he was unaware of the impending loss of rights when entering that guilty plea. The motion was denied by the magistrate's court based upon Idaho law, which states that a magistrate judge need not advise a defendant of "collateral consequences."

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

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

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

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

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

Yet if a misdemeanor defendant, like Mr. Sunseri, engages in a scuffle with his ex-wife, is implicated upon false accusations, has legitimate defenses to the charges, but chooses to take the state's deal rather than lose his job, he has fewer rights than the sex offender or non-citizen to know in advance that a domestic violence conviction will result in a lifetime ban on his fundamental right to own and possess firearms and ammunition. … Mr. Sunseri challenges this loss of his Second Amendment rights because he did not receive notice of this consequence at the time he entered his plea and would not have pleaded guilty had he been properly advised.

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

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

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

The applicant filed his opening brief with the Idaho Supreme Court on November 14, 2017. The State of Idaho Attorney General's Office filed their brief on February 6, 2018. The applicant filed his reply brief on March 14, 2018. On June 8, 2018 oral argument was heard before the Idaho Supreme Court. The applicant's attorney informs that the "[a]rgument went very well and the Justices seemed very concerned both that the plea offer and the acceptance of this guilty plea were uncounseled and that the Magistrate and District Court on appeal did not engage in the required 'just cause' analysis to determine whether Mr. Sunseri had demonstrated the requisite just cause to withdraw his pre-sentencing guilty plea."

On October 31, 2018, the Idaho Supreme Court ruled in the applicant's favor, reversing the denial of the applicant's motion to withdraw his guilty plea and remanding to the district court with directions to consider the applicant's "grounds using a far more favorable 'just cause' analysis than the lower courts had allowed."

The applicant must now establish such "just cause" to the magistrate's satisfaction.

 

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ILLINOIS

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 ruled in the plaintiffs' favor and issued a permanent injunction.

The Village of Deerfield appealed and the case is now on appeal to the mid-appellate state 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.

Shawna Johnson v. Illinois State Police.

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

After the revocation, the applicant commenced a pro se action, in the Circuit Court for Wabash County, against the Illinois State Police and obtained a ruling that substantively indicated that she could obtain relief notwithstanding the federal prohibition, based on the rationale in Coram v. State, 996 N.E. 1057 (Ill. 2013).  The issue was whether a circuit court can remove federal firearms disabilities for individuals who have been convicted of a misdemeanor domestic violence charge.  Citing 430 Ill. Comp. Stat. 65/10(b), the Illinois State Police argued that circuit courts cannot grant relief because Illinois statutory law prohibits restoration of rights to those prohibited from possessing firearms pursuant to federal law.  The applicant argued that federal law enables the removal of a federal firearms disability if one's "civil rights" have been restored.  The applicant also argued that 18 U.S.C. § 922(g) (9) as applied to her is unconstitutional under the Second Amendment.

An evidentiary hearing was held in this matter on January 20, 2016.  Subsequently, the court directed each side to submit post-hearing briefs by May 13, 2016.  A hearing took place on August 20, 2018, at which the judge scheduled another follow-up conference for September 17, 2018.  On October 1, 2018, the court finally issued an order, holding the following federal and state laws and regulations unconstitutional as-applied:

430 ILCS 65/8(n)-which authorizes denial or revocation of a FOID when federal law

prohibits the possession of firearms;

430 ILCS 65/10(b) & (c)(4)-which prohibits granting relief from FOID disabilities

when it would "be contrary to federal law";

20 Ill. Admin. Code § 1230.20(h)-which directs ISP to deny FOID applications from

individuals "prohibited under federal law from possessing or receiving a firearm"; and

18 U.S.C. § 922(g)(9)-which prohibits anyone with a conviction for "a misdemeanor

crime of domestic violence" from possessing firearms.

The court reversed the decision of the director of the Illinois State Police in its denial of petitioner's request to reinstate/reissue her a FOID card and ordered the Illinois State Police to reinstate and reissue to the applicant a FOID card.

The Court reasoned that the applicant has no means available to obtain a restoration of her Second Amendment rights.  Unlike several other individuals who have challenged the application of the Lautenberg Amendment in Illinois, the applicant had applied for-and been denied-a gubernatorial pardon.  Many Illinois courts have declined to reach similar

Constitutional claims on the ground that they were premature because the person asserting those

claims had not sought to obtain a pardon.  See, e.g., People v. Heitmann, 2017 IL App (3d)

160527, ¶ 40; Baumgartner v. Greene Cnty. State's Attorney's Office, 2016 IL App (4th)

150035, ¶ 61.  The two Justices who dissented in Coram had considered the constitutional

claim premature in light of the fact that the plaintiff had not requested a pardon. See Coram,

2013 IL 113687 at ¶¶ 132-34 (Theis, J., dissenting).  Because the applicant had attempted to obtain a pardon, the Court distinguished these authorities.

On October 15, 2018, the applicant filed a petition for an award of attorney's fees and submitted a brief in support of the petition.  The basis for the petition is that the court found an administrative rule of the State invalid.  The court has stayed that petition pending the appeal noted below.

The Illinois Attorney General's Office moved for a stay on October 22, 2018.  The State appealed to the Supreme Court of Illinois and filed its notice of appeal on November 1, 2018. The Court stayed that part of the order that directed Illinois State Police to issue a new Firearms Owner's Identification card.

At the Illinois Supreme Court, we  …  rely on two alternative arguments. First, we  …  argue that a Circuit Court's order granting relief under 430 ILCS 65/10 is sufficient to invoke the "civil rights restored" exception contained in the 1968 Gun Control Act. See 18 U.S.C. §921(a)(20) & (33)(i).  … [W]e intend to advance the conclusion the Supreme Court of New Hampshire reached in DuPont v. Nashua Police Dep't, 113 A.3d 239, 167 N.H. 429 (2015)-to wit, that by "remov[ing a] restriction . . . [on the] civil right to keep and bear arms," a state can "thereby restore [an individual]'s civil rights within the meaning of § 921(a)(20)" & (33)(i). Id. at 250, 167 N.H. at 442-43.  Next, we  …  argue that (as the Circuit Court found) the incorporation of the Lautenberg Amendment to perpetually deny the right to keep and bear arms is unconstitutional as-applied to Ms. Johnson.  …

On May 8, 2019, the State filed its Appellant's Brief.  On July 29, 2019, the applicant filed the Brief of Petitioner-Appellee.  The State's Reply Brief is due on September 16, 2019.  The Court is expected to schedule oral argument during the late fall or winter.

Another case, People v. Brown, in which the circuit court held the FOID Act unconstitutional on the facts presented, is also currently pending before the Illinois Supreme Court.  "In light of the fact that the Brown case concerns the constitutionality of the FOID Act as a whole (at least in the context of home possession), we have added a section  …  that also addresses this issue."

 

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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.

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. The court has not yet ruled on these matters. A scheduling conference was held on September 17, 2018 and a case management schedule was issued. The first depositions are scheduled for October 28 and 29, 2019. Trial has been scheduled for December 6, 2019.

On May 26, 2018, the applicant's 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 Rage 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.

Two Rule 12(b) motion to dismiss were filed by some of the defendants, and the rest of the defendants filed an answer on July 23, 2018. On August 27, 2018, the applicants filed responses to both motions to dismiss. The Court has not yet ruled on these motions.

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.

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. September 4, 2019 is the mediation deadline and trial is scheduled for January 2020.

On July 17, 2019, a third lawsuit was filed 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 plaintiffs have obtained an order from the court requiring expedited discovery in the new lawsuit.

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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. .

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 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 applicant and the defendants have filed their briefs and the case is now fully briefed. The parties are await a ruling by the United States Court of Appeals for the Fourth Circuit.

Malpasso v. Pallozzi.

Maryland 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 a "good and substantial reason." While the Fourth Circuit's decision in Woolard v. Gallagher upheld this requirement, this litigation is designed to prompt reconsideration of that opinion in light of the DC Circuit's decision in Grace.

On April 12, 2018, a lawsuit was filed in the United States District Court for the District of Maryland challenging Maryland's concealed carry restrictions. Maryland moved to dismiss on June 11, 2018. The plaintiffs filed a response on June 25, 2018. The NRA filed an amicus brief supporting the plaintiffs on July 2, 2018.

On October 15, 2018, the United States District Court ruled in favor of the state. An appeal to the Fourth Circuit was filed. On April 29, 2019, the United States Court of Appeal Fourth Circuit affirmed the judgment of the district court. "This case is headed from the Fourth Circuit to Scotus but the petition deadline was recently extended to late August."

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

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

The State filed a motion to dismiss. Following a hearing on the motion on August 7, 2017, the judge found plaintiffs had stated plausible claims for relief under the Second and Fourteenth Amendments. The State's motion to dismiss was denied.

Discovery has now been completed. Dispositive motions were briefed by November 5, 2018. The judge assigned to the case retired and the new judge has not acted on the matter.

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MASSACHUSETTS

Gould v. Morgan (formerly Gould v. O'Leary.

This challenge to Massachusetts restrictions on the carrying of firearms in public was filed on February 4, 2016. Massachusetts requires a license to carry firearms in public, which may be granted only upon demonstration of a "good reason," and it delegates to local licensing authorities the power to require the showing of a heightened need for self-defense before issuance of a license to carry.

Cross-motions for summary judgment were filed in 2017. In December, 2017, the district court granted summary judgment to the defendants.

The plaintiffs appealed to the United States Court of Appeals for the First Circuit. Oral argument occurred on July 25, 2018. On November 2, 2018, the United States Court of Appeals for the First Circuit ruled adversely, upholding the "good reason" restriction under intermediate scrutiny. A petition for certiorari with the United States Supreme Court was filed on March 29, 2019.

"After an initial conference SCOTUS is holding this case (along with all other Second Amendment cases) off calendar."

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

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 have been unsuccessful.

The applicant intends to resume the zoning appeal of the Town of Granby's 2017 cease and desist order. 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.

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

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

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

On November 22, 2016, Massachusetts filed a motion to dismiss. The motion was heard in April 2017. On March 14, 2018, the Massachusetts's motion to dismiss was denied.

Massachusetts filed an appeal from the District Court's rejection of its Eleventh Amendment claim with the United States Circuit Court for the First Circuit.

While still technically pending in the District Court, no action is being taken because Massachusetts refused to move forward in the district court until its appeal is resolved.

Worman, et al. v. Healy, et al.

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

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

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

Plaintiffs took the depositions of representative witnesses from the Executive Office of Public Safety, the Massachusetts State Police, and the Office of the Attorney General. Plaintiffs also took the depositions of the fact witnesses identified the defendants in their interrogatories. Fact discovery ended on September 15, 2017, and the defendants have withheld nearly all internal communications, claiming privilege. The parties took depositions of each other's expert witnesses. Expert discovery closed November 20, 2017.

On April 6, 2018, the United States District Court for the District of Massachusetts upheld Massachusetts ban.

After discovery, on cross-motions for summary judgment, Judge Young granted Defendants summary judgment on the Second Amendment and vagueness claims and dismissed the retroactivity claim as unripe. The Court held that the firearms and magazines banned by Massachusetts are outside the protection of the Second Amendment, largely following the Kolbe decision. The Court held that commonality is not a relevant issue in a Second Amendment analysis, and that the proper test for whether a firearm is protected is whether it is "most useful in military service."

Plaintiffs appealed to the United States Court of Appeals for the First Circuit. Briefs were filed by October 5, 2018. Oral argument occurred on January 9, 2019. On April 26, 2019, the United States Court of Appeals for the First Circuit decided the case in favor of upholding the Massachusetts law.

The time for filing a petition for certiorari in the Supreme Court has been extended until September 23, 2019.

Worman, et al. v. Healey, et al. Law Enforcement Amicus Brief.

See case description above.

Seven organizations consisting of law enforcement personnel, or which support law enforcement, participated in the brief.  Consent to file the amicus brief was obtained from all parties.

On August 29, 2018, the law enforcement amicus brief was filed with the First Circuit. On September 20, 2018, the First Circuit granted the motion for leave to file the amicus brief.

On April 26, 2019, the United States Court of Appeals for the First Circuit decided the case in favor of upholding the Massachusetts law.

The time for filing a petition for certiorari in the Supreme Court has been extended until September 23, 2019.

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MICHIGAN

Nancy Woehlke v. Timothy Craig Milko.

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

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

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." Currently, the applicant's attorneys are in the process of redrafting the motion.

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

v. Howell Township.

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 is planning on building 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 has 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.  These motions have not yet been acted upon.  The applicant has amended its complaint and added additional individual plaintiffs.

A status and settlement conference has been scheduled for August 28, 2019.

 

Joshua Wade v. University of Michigan.

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

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

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

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

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

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

 

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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 for summary judgment and the plaintiffs cross-moved for a stay of all proceedings pending the Supreme Court's decision in New York State Rifle & Pistol Association, Inc. v. City of New York, No. 18-280 (U.S.). Briefing was completed in April, 2019.

The plaintiffs have appealed to the United States Court of Appeals for the Third Circuit.

Rogers v. Grewal.

New Jersey 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 "justifiable need." In addition, without such a permit it is nearly impossible to obtain a handgun for home defense. While the Third Circuit's decision in Drake v. Filko upheld this requirement, this litigation is designed to prompt reconsideration of that opinion in light of the DC Circuit's decision in Grace v. DC.

On February 5, 2018, in coordination with ANJRPC, a lawsuit was filed in the United States District Court for the District of New Jersey challenging New Jersey's concealed carry restrictions. On April 3, 2018, the defendant's filed a motion to dismiss. On June 18, 2018, the district court granted the motion and dismissed the case.

The plaintiffs appealed to the United States Court of Appeals for the Third Circuit. On July 3, 2018, the plaintiffs filed an unopposed motion asking the Court of Appeals to act on the appeal summarily, given the binding decision in Drake. On September 21, 2018, the Third Circuit granted that motion and summarily affirmed.

A writ of certiorari was filed with the United States Supreme Court on December 20, 2018. New Jersey initially waived its right to respond to the petition, but the Court requested a response. New Jersey filed its brief in opposition to the writ on May 3, 2019. Petitioners filed their reply brief on May 7, 2019. On May 7, the filings were distributed for the Supreme Court's conference on May 23, 2019. "After an initial conference SCOTUS is holding this case (along with all other Second Amendment cases) off calendar."

Rogers v. GrewalNational African American Gun Association, Inc. Amicus Curiae Brief.

See case description above.

The applicant filed an amicus curiae brief on behalf of the National African American Gun Association, Inc., on Jan. 30, 2019.

This matter may now be considered closed.

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NEW YORK

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.

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.

Discovery has been completed.

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. The parties await a post-trial decision from the Court.

John Copeland, Pedro Perez, Native Leather Ltd, Knife Rights, Inc., Knife Rights Foundation, Inc. v. Cyrus R. Vance, Jr., Barbara Underwood.

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

The applicants' attorney describes the case as follows:

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

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

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

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

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

On June 16, 2016, the bench trial concluded. On January 30, 2017, the District Court ruled against the applicants, holding that the statute is not applied by the defendants in an unconstitutionally vague manner-even though there is no means by which a person can determine whether they are in possession of a legal or an illegal folding knife.

On February 16, 2017, the applicants filed their notice of appeal to the United States Court of Appeals for the Second Circuit. The appeal was briefed, and arguments occurred on January 18, 2018. On June 22, 2018, the Second Circuit Court of Appeals ruled against the applicants. On July 6, 2018, the applicants filed a petition for panel rehearing and rehearing en banc. On August 29, 2018, the Second Circuit denied the petition for rehearing en banc.

In affirming the trial court's ruling, the Second Circuit employed a disturbing and controversial approach to Constitutional claims by pigeon-holing the case narrowly as a facial challenge and then refusing to reach the merits. By doing so, the Second Circuit disregarded clearly establish Supreme Court precedent and proceeded in a manner squarely and starkly at odds with the manner in which the Fourth and Eighth Circuits decide similar types of cases. The decision below creates a clear circuit split worthy of review by the Supreme Court.

The critical issue arises in the context of the recently decided Supreme Court cases Johnson v. United States and Sessions v. Dimaya, both of which had the effect of relaxing the standard for maintaining a facial Constitutional challenge. The Second Circuit is steadfastly resisting this change in the law, and in doing so is blocking civil rights cases in their infancy without consideration of the merits. This issue (and the related circuit split) arises particularly in the context of Second Amendment challenges. In Kolbe v. Hogan, the Fourth Circuit explicitly acknowledged the impact of Johnson and Dimaya in relaxing the requirements for a facial vagueness challenge. On the other hand, in New York State Rifle & Pistol Association v. Cuomo, the Second Circuit, as in our case, disregarded the Supreme Court's holding in Johnson and Dimaya.

On January 14, 2019, the applicants filed a petition for certiorari to the United States Supreme Court.

May 30, 2019, Governor Andrew Cuomo signed into law a repeal of a portion of New York's gravity knife law. Unfortunately, the repeal was not a full repeal and also was not retroactive. Therefore, some exposure to liability remains, and the NYPD has made it clear that they intend to continue their efforts to enforce the law against law abiding knife owners.

On June 4, 2019, the District Attorney filed a letter with the clerk of the United States Supreme Court regarding arguing that the case has become moot.

On June 7, 2019, the applicants filed a supplemental brief in the United States Supreme Court regarding the issue of mootness, arguing as follows:

I. Assembly Bill 5944 Did Not Moot the Petition Because Gravity Knives Remain Illegal on New York City Subways and Buses, and the NYPD has Announced its Intention to Enforce Those Prohibitions

II. Assembly Bill 5944 Did Not Moot the Petition Because Retailers Potentially Remain Subject to Future Prosecution for Conduct Prior to the Repeal.

Manuel S. Mieles.

The applicant currently holds a license to possess rifles and shotguns. He applied for a "premises residence handgun license" from the New York City Police Department ("NYPD"). The NYPD denied the application for the handgun license on September 11, 2017. Despite requests, the NYPD refused to provide any evidence as to why the handgun license was denied. The applicant filed an administrative appeal on October 27, 2017. The appeal was denied on February 14, 2018.

The applicant's attorney identifies the following questions presented:

A) Is a person denied his/her right to possess a handgun entitled to review the evidence used to deny this right? If so, is New York City's municipal law 38 R.C.N.Y. Section 5-07 (e) & (f) unconstitutional insofar as it does not require NYPD to supply evidence to those denied a handgun permit?

B) Do governmental authorities violate the Second Amendment & the Equal Protection Clause by permitting a person to possess one kind of firearm in his home, (i.e. rifles & shotguns), but not the other, (i.e. handguns)?

The applicant argues that the refusal to provide the requested evidence deprived the applicant of the opportunity for a "meaningful administrative appeal." The applicant further argues that there is no rational basis for approving the applicant's permit to possess a long gun but denying his application to possess a handgun. The grounds allowing for possession of rifles and shotguns in one's home are the same as the grounds for allowing possession of a handgun in one's home. 38 R.C.N.Y. § 3-03 and 38 R.C.N.Y. § 5-10.

The applicant intends to file a declaratory judgment action in the United States District Court for the Southern District of New York seeking to declare that: (1) 38 R.C.N.Y. § 5-07 (e) & (f) violate procedural due process because an applicant is denied the opportunity to review the evidence used against the applicant; and (2) the NYPD's denial of the applicant's premises residence license application violated the Second Amendment and the Equal Protection Clause of the United States Constitution because there was no rational basis for the NYPD to determine that the applicant was fit to possess one kind of firearm in his home but not the other.

At the May 3, 2018 Board of Trustees meeting, the applicant's counsel was asked about post deprivation remedies. The applicant responded as follows:

… Under Zinermon v. Burch 494 US 113, 136-7 (1990) state remedies would not preclude the federal court's determination of Mr. Mieles' procedural due process claims since:

1. the deprivation was foreseeable[;]

2. the State could have reduced the risk of harm to Mr. Mieles via more procedural safeguards or by limiting the administrative agency's discretion; [and]

3. … because the administrative agency is authorized to implement procedural safeguards.

Southern District of New York cases which discuss Zinermon are C.A.U.T.I.O.N, Ltd. v. City of New York 898 F.Supp. 1065, 1071 (S.D.N.Y. 1995) and Irwin v. City of New York 902 F.Supp. 442, 448 (1995). The Eastern District of New York case Razzano v. County of Nassau, 765 F.Supp.2d 176, 185 (E.D.N.Y. 2011) similarly indicated that a federal court can decide a procedural due process claim without regard to the availability of state remedies. Furthermore, Mr. Mieles possess cognizable claims pursuant to the Second Amendment and Equal Protection Clause. …

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 plaintiffs 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 set oral argument for October 24, 2019.

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

After reducing most handgun permits issued by the city from full-carry to "premises only" over the course of decades, the New York City Police Department (NYPD) added further regulations limiting the places a premises permit holder could transport a gun to only ranges approved by the NYPD located within the Five Boroughs of NYC, with a small exception for hunting on New York

State approved hunting land. This regulation, enforced by revocation of the person's firearm permit (forfeiture of all handguns and essentially a revocation of Second Amendment rights as to handguns) was put into place several years ago and enforced on a case-by-case basis.

This lawsuit, filed in 2013, challenged the law by raising, among other things, the Second Amendment and the right to travel. In February 2015, the United States District Court ruled in favor of the city by granting its motion for summary judgment. The district court held that the restrictions in premises licenses do not violate the Second Amendment, the Commerce Clause, the fundamental right to travel, or the First Amendment.

An appeal to the United States Court of Appeals for the Second Circuit was filed in March 2015. Argument before the Second Circuit was held on August 17, 2016. On February 23, 2018, the United States Court of Appeals for the Second Circuit upheld the trial court decision.

A petition for certiorari was filed. On January 22, 2019, the United States Supreme Court granted certiorari. Briefing is not due for the last round until August 2019. No date for oral argument has yet been set.

 

New York State Rifle and Pistol Association, et al. v. City of New York, et al. Law enforcement organization amicus curiae brief.

This funding supported the preparation and filing of an amicus curiae in the United States Supreme Court on behalf of a number of law enforcement organizations, including the International Law Enforcement Educators and Trainers Association, the International Association of Law Enforcement Firearms Instructors, the Law Enforcement Legal Defense Fund, the Law Enforcement Action Network, and the Law Enforcement Alliance of America. The amicus brief is in support of granting a petition for certiorari seeking review of a decision by the Second Circuit denying relief to the plaintiffs.

The State of New York prohibits residents from possessing a handgun unless they have a license. To obtain a license, a resident must apply "to the licensing officer in the city or county … where [he or she] resides." The only license most residents may obtain is a "premises license" which limits the possession of handguns to the address listed on the license. The sole exception is that the license holder "may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately." New York City interprets "authorized" ranges or clubs to mean only those within the city, of which there are only seven. Thus, licensees cannot transport an unloaded handgun, even in a locked container, to a range outside the city or to a second home elsewhere in the state.

The plaintiffs, including the New York State Rifle and Pistol Association, challenged the law as violating, among other things, the Second Amendment, the Commerce Clause, and the fundamental right to travel. The plaintiffs did not prevail in either the District Court or the Second Circuit. The Second Circuit held that the restriction on being able to take one's firearms outside the city was justified by "public safety," because licensees are just as susceptible as others to "stressful situations" on the public streets, including "road rage" and "crowd situations, demonstrations, family disputes" and other situations "where it would be better not to have the presence of a firearm." That interest easily justified the "insignificant and indirect" burdens on Second Amendment rights.

The law enforcement amicus brief was filed in support of a petition for certiorari in the United States Supreme Court. The amicus brief will supplement the constitutional arguments by showing factually that the alleged "public safety" benefits cited by the Second Circuit under "intermediate scrutiny" are non-existent. License holders undergo exhaustive screening, and are comparable to concealed carry permit holders in other states, who are extraordinarily law-abiding according to empirical data. Most homicides and violent crimes are committed by individuals with a criminal record, who are not even eligible for a premises license. New York City has produced no actual evidence that license holders pose a threat when transporting their unloaded, locked up firearms, and relied solely on speculation.

The amicus brief was filed on October 9, 2018. On January 22, 2019, the United States Supreme Court granted certiorari.

New York State Rifle and Pistol Association, et al. v. City of New York, et al. Pink Pistols amicus curiae brief.

See case description above.

On May 13, 2019, the amicus brief of Pink Pistols was filed in the United States Supreme Court.

 

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NORTH CAROLINA

Robert Navarro and the Caldwell Gun Club, LLC.

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

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

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

The applicant appealed to the Board of Adjustment. The applicant's attorney identified the issues in the case as including:

Whether a county enforcement officer can revoke a permit because, on subjective grounds, a permitted gun range has become a nuisance; whether daily memberships can be sold for a "private" gun club in the absence of any zoning regulations specifying what constitutes a "private" club; can a "private" gun club be commercial.

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

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

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

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

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

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

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

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

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

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

A petition for Certiorari to the Caldwell County Superior Court was filed. A writ of certiorari was issued on July 26, 2017. On April 23, 2018, the Caldwell County Superior Court heard the matter. On July 13, 2018, the Court found in favor of the county Board of Adjustment, sustaining the county's revocation of the zoning permits for the applicant, and forcing a shutdown of the shooting range.

On August 14, 2018, the applicant filed notice of appeal to the North Carolina Court of Appeals. The County of Caldwell moved to dismiss the appeal as untimely. After hearing in the Superior Court the County's motion to dismiss was denied. The County then filed notice of appeal to the Court of Appeals as to the Superior Court's denial of their motion to dismiss.

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OHIO

Darrin Brodbeck v. State of Ohio.

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

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

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

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

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

On October 28, 2016, the applicant's counsel filed a motion for leave to file a motion for a new trial in the District Court of Franklin County, Ohio. The motion was denied in December 2016. The applicant appealed to the Ohio 10th District Court of Appeals. Oral arguments were held on July 18, 2017. The Court of Appeals issued a written decision in August 2017 upholding the denial and informing that a post-conviction relief application was the appropriate venue to bring any new evidence forward. A post-conviction relief petition was filed in state court. The relief was denied. The applicant appealed to the Court of Appeals, where he also lost.

 

The applicant's attorney's investigator informed as follows: "we have gone through all the stages at the state level and are in the process of filing a civil writ in federal court to ask his sentence be vacated." The applicant plans to file a federal habeas petition in United States District Court for the Southern District of Ohio shortly.

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 la w, 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 for Butler County, 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 is due on July 22, 2019. No date for oral argument has yet been set.

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."

Lucas Burwell, Michelle Yarbrough, Katherin Kirkpatrick; and Christopher S. Johnson 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 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:

o 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.

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

o 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.

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

o 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.

o 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. No decision has yet been rendered.

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PENNSYLVANIA

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

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

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

On January 30, 2017, the defendants moved to dismiss the complaint, arguing that the plaintiffs have no Second Amendment rights because they were declared mentally ill, and, therefore, cannot challenge the process by which they were declared mentally ill, and were divested of their Second Amendment rights. On February 13, 2017, the plaintiffs filed an opposition and a sur-reply to the defendants' reply. Oral argument was held before the Court on May 16, 2017. On August 8, 2017, the Court, while not reaching the State's motion to dismiss, did grant leave under seal to allow additional fact investigation to the plaintiffs. On August 23, 2017, the Court entered an order granting in part and denying in part defendant's motion to dismiss. The Court dismissed several defendants but rejected all of defendant's arguments as to the sufficiency of the pleadings, suggesting in many footnotes that if the allegations in the complaint are true, there may be a due process violation 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 case is now on appeal to the United States Court of Appeals for the Third Circuit.

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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).

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

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

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

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

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

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

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

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

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

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

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

The Department of Justice denied Mr. Arwady's claim 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 cause so 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 Bivens claim and the false arrest claim based on the statute of limitations but allowed the negligent storage claim to move forward.

Braughton v. State of Texas.

In this case, Christopher Earnest Braughton was convicted of murder despite overwhelming evidence that he acted to protect his family from a violent attack by a highly drunken and enraged biker who had just had a fight in a bar with his girlfriend. He is seeking discretionary review of his conviction and twenty-year sentence in the highest court in the State, arguing that the intermediate appellate court applied the incorrect standard to review the jury's verdict on his self-defense claim. The NRA submitted an amicus brief in support of his petition, and the Court granted discretionary review on December 6, 2017. The NRA filed a merits-stage amicus brief on March 5, 2018, arguing that no rational trier of fact could have found Braughton guilty and that upholding his conviction would seriously undermine the right to self-defense in Texas.

Oral arguments before the Texas Court of Criminal Appeals occurred on May 16, 2018. The NRA was granted leave to participate in oral arguments. On December 20, 2018, the Texas Court of Criminal Appeals ruled adversely, upholding the verdict.

This matter may now be considered closed.

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VERMONT

In re:  Laberge Shooting Range, J.O. 4-247

In re:  Jurisdictional Opinion 4-247-Alerted, Laberge Shooting Range

In re:  Firing Range Neighborhood Group, LLC.

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

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

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

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

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

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

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

Thus, if the applicant can show the improvements that triggered the permit process were safety related, the applicant will prevail and no permit will be required. The applicant's attorney believes that the range will prevail because the improvements included the placement of berms behind the targets, the repair of several shooting benches, and the elimination of two shooting locations and their associated lines of fire. The applicant has engaged an NRA-certified gun safety expert to execute an affidavit and testify that all the improvements make the range safer.

A merits hearing was held on January 31, 2018. The two issues were: (1) whether the alleged improvements were exempt from regulation because they were undertaken for safety purposes; and (2) whether there had been a change if use (i.e. had the range become a commercial operation). On March 9, 2018, the trial court held in favor of the applicant.

The neighbors have filed an appeal to the Vermont Supreme Court. On April 20, 2018, the neighbors filed their appellate brief. On May 11, 2018, the applicant filed its appellate brief. On May 25, 2018, the neighbors filed their reply brief.

On August 17, 2018, the Vermont Supreme Court ruled in the applicant's favor, affirming the judgement below. On October 1, 2018, the Vermont Supreme Court denied the appellant's motion for reargument.

The applicants are negotiating with the plaintiff neighbors to see if the parties can agree on certain noise mitigation measures. The neighbors have offered to pay for the noise mitigation and forgo any further litigation if the applicants agree to install the improvements.

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

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

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

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

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

The ordinance specifically excludes:

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

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

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

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

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

The club then filed a complaint for a declaratory injunction, asking the Vermont Superior Court to find the regulation invalid. The Superior Court held that the Town of Williston did not have the right to compel the club to enter into such an agreement. However, the judge also stated, in dicta, that the club could still be required to meet the noise restrictions imposed by the Town of Williston noise ordinance. Contrary to the judge's dicta, the club cannot comply with the ordinance's noise restrictions. The judge's advice, to enclose the skeet shooting field was impractical, prohibitively expensive, and beyond the club's means.

On October 25, 2016, the Court entered final judgment in the matter. On October 26, 2016, the applicant filed a notice of appeal to the Vermont Supreme Court. The applicant's appellate brief was filed on December 7, 2016 and the appellee's brief one month thereafter. On June 2, 2017, the Vermont Supreme Court ruled in the applicant's favor. As a result, the Town of Williston cannot mandate that the applicant enter into an agreement as to the operating hours nor can it cite the applicant for violating the Town of Williston's noise ordinance unless there is a material change in the amount of activity at the club.

The applicant has negotiated an Assurance of Discontinuance with the Agency of Natural Resources related to the continued efforts by the Club to address lead deposits. The Assurance of Discontinuance was executed on November 16, 2018. The Assurance of Discontinuance does not include the payment of any fines. The Assurance of Discontinuance does require the club to undertake particular remedial measures. If the club completes these remedial measures, the matter will be closed; if not, the club will be subject to fines.

Neighbors of the club have sought to challenge the Assurance of Discontinuance, seeking the imposition of more punitive fines that could shut the club down. On January 15, 2019, these neighbors filed an Amended Motion for Permissive Intervention in Assurance of Discontinuance in the Superior Court, Environmental Division.

The applicant informs that currently:

[T]he Town of Williston is once again considering an amended noise ordinance that includes restrictions on the number of special events, which include everything from corporate outings to gun safety courses, which the Club has annually. The Club is seeking to remove this restriction or negotiate a greater number of permitted events.

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VIRGINIA

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

 

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

The applicants' attorney relates the following pertinent facts:

In May of 2016, the plaintiffs filed a nuisance claim in Virginia against the applicants. The plaintiffs served defendants in May of 2017. The applicants' attorneys responded to the complaint. In July 2017, the matter was stayed pending the outcome of the West Virginia case. Nothing has happened since then.

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

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WEST VIRGINIA

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

 

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.

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

 

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