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Current Litigation

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Status of cases that fund has agreed to support.

ALABAMA

Stan Pate (Alabama).  He responded to a trespass, a theft, and a third degree burglary on his property. There were three culprits in the building (a closed restaurant).  They were ordered to leave.    The police came.  The police were not in view when one of the culprits entered the building again.   Pate ordered him to leave again.  Pate had a shotgun.  The trial court found that Pate did not point the shotgun.  However, Pate was charged and convicted of menacing, a misdemeanor.  In his written ruling, the court held that the presence of the police on the premises caused Pate's right to defend his property to evaporate.  A pro bono amicus brief was prepared and filed in the Alabama Court of Criminal Appeals to address this issue.  Jay Porter, a member of the Alabama bar, prepared and filed the brief.  He was assisted by James Porter and Robert Dowlut. On June 22, 2012, the court affirmed the conviction, with one judge dissenting.  It held it was not reasonable under the circumstances for Mr. Pate to arm himself while police officers were present.  A petition for discretionary review by the Alabama Supreme Court was filed; the court granted review on October 3, 2012.  Brief of amicus curiae NRA Civil Rights Defense Fund was filed on October 17, 2012, in the Alabama Supreme Court. A key issue is the right to bear arms for self-defense, as recognized by the U.S. Supreme Court.  The court on July 3, 2013, reversed the conviction.  The Alabama Supreme Court held that lawfully arming oneself is not a physical action so as to fulfill an element of Alabama's menacing statute.  Pate v. City of Tuscaloosa, 2013 Ala. LEXIS 78.

 

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ARIZONA

Roger Barnett (Arizona).  Counsel for Mr. Barnett informed in a letter of April 14, 2009, that this is an appeal to the U.S. Court of Appeals for the 9th Circuit from a civil trial where damages were awarded against Mr. Barnett.  He encountered 20 illegal aliens on his ranch crossing into Arizona from Mexico.  He held them for the Border Patrol.  The Border Patrol arrested them and took them back to Mexico.  Activists on behalf of illegal aliens filed a civil lawsuit.  The jury rejected most claims but found against Mr. Barnett for assault and for infliction of emotional distress.  The U.S. District Court judge refused to give a self‑defense instruction and a limiting instruction on the infliction of emotional distress claim.  The case was appealed.  The U.S. Court of Appeals for the 9th Circuit upheld the jury verdict in an unpublished opinion on February 3, 2011.  Vincente v. Barnett, 2011 U.S. App. LEXIS 2306.

Prescott Sportsmen's Club (Arizona).  This is an effort to shut down or impede a shooting range that has been in existence since 1957.  Counsel for the club informed on November 22, 2010, that a housing development was built adjacent to the club.  Their direct efforts to shut down the club proved unsuccessful.  Consequently, they filed a complaint with the Arizona Department of Environmental Quality.  The case is presently in the administrative enforcement stage.   The club anticipates resolving the matter through negotiation and ideally avoiding any administrative and court adversarial proceedings.  Counsel informed on August 1, 2011, it is continuing to negotiate a resolution with the Arizona Department of Environmental Quality (ADEQ).  Counsel informed on October 15, 2012, that the case has shifted gears somewhat as ADEQ has backed off, but now the Forest Service has taken the lead and essentially indicated that  the range closure needs to meet ADEQ standards (the range is set to move locations in 2014) when its Forest Service lease expires.  The club is working to obtain grant funding to prepare closure plans and also will be negotiating the closure plans with the Forest Service and probably ADEQ in the near future.

 

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CALIFORNIA

Nordyke v. County of Alameda (Calif.).   This case involves a challenge to a gun show ban. The U.S. District Court denied Nordyke's motion for a preliminary injunction.  Nordyke appealed.  The U.S. Court of Appeals for the 9th Circuit on September 12, 2000, certified to the California Supreme Court a question on firearm preemption.  The California Supreme Court concluded that the municipal ordinance in question, insofar as it concerns gun shows, is not preempted.  There was a dissenting opinion.  The case is reported as Nordyke v. King, 27 Cal.4th 875, 118 Cal.Rptr.2d 761, 44 P.3d 133 (2002).  On September 30, 2002, a supplemental brief was filed in compliance with the U.S. Court of Appeals' order that supplemental briefs be filed addressing federal constitutional issues, including the Second Amendment.  On February 18, 2003, the court held that the facial challenge to the ordinance based on infringement of expressive conduct fails.  Regarding the Second Amendment, the court opined that this guarantee should be revisited.  The court also hinted that the individual rights view is the correct view of the Second Amendment and stated the issue is ripe for en banc review. Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003).  A petition for en banc review was denied on April 5, 2004.  Strong dissents were made.  The U.S.  Supreme denied a petition for a writ of certiorari on October 4, 2004: Nordyke v. King, No. 03-1710.  Nordyke refiled and mounted a First Amendment challenge.  The U.S. District Court on September 28, 2005, denied the defendants' motion to dismiss.  The case went through the discovery process.  Alameda County filed yet another motion to dismiss.  Counsel for Nordyke filed a reply brief which on July 10, 2006.  The court dismissed the lawsuit on April 18, 2007.  An appeal was filed on the First Amendment issue in the U.S. Court of Appeals.  The Nordykes brief was filed on November 13, 2007.  The Second Amendment and its application to the states through the Fourteenth Amendment were subsequently briefed in response to the courts sua sponte order.  Oral argument occurred on January 15, 2009.  The court held that the Second Amendment applies to the states and local government.  Nordyke v. King, U.S. Ct. App. 9th Cir., April 20, 2009.  The court subsequently decided to hear the case en banc.  Oral argument occurred September 24, 2009.  The court stayed proceedings until the U.S. Supreme Court decides McDonald v. City of Chicago.  On June 28, 2010, the U.S. Supreme Court held that the Second Amendment applies to states and local government through the Fourteenth Amendment. McDonald v. Chicago, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).  The case was remanded back to a three-judge panel. The court issued its decision on May 2, 2011.  It adopted a "substantial burden framework" for the Second Amendment. The court affirmed the district court's grant of summary judgment to the County on the Nordykes First Amendment and equal protection claims. However, because the Nordykes may still be able to allege sufficient facts to state a Second Amendment claim, the court vacated the district court's denial of leave to amend the complaint to the extent that the denial was with prejudice, and remanded the case to the district court for further proceedings.  Nordyke v. King, 2011 WL 1632063.  On November 28, 2011, the court agreed to hear the case en banc.  Oral argument occurred on March 19, 2012.  During oral argument the defendant conceded that a gun show could be held on fair grounds.  The Court on June 1, 2012, ruled that it would bind the county to its 11th hour concession made at the oral argument that the gun show promoter plaintiffs could hold a gun show on the Alameda County fairgrounds property after all, so long as the guns were secured to the exhibit tables with a wire cable. In essence, Alameda County blinked. After more than a dozen years of maintaining that their ordinance prohibited gun shows entirely, it decided they would rather switch its position than continue to fight the lawsuit.

Edward Peruta and Others (California).  This is a challenge based on the Second Amendment and Fourteenth Amendment to the California statute that requires a showing of good cause before a license to carrying a pistol concealed is issued.  The U.S. District Court denied relief on December 10, 2010. Peruta v. County of San Diego, 758 F.Supp.2d 1106 (S.D. Cal. 2010). Its reasoning included the fact that an unloaded pistol may be carried unconcealed while possessing ammunition at the same time.  An appeal was taken to the U.S. Court of Appeals for the 9th Circuit.  The appellants' brief was filed on May 23, 2011, and the reply brief on September 6, 2011.  The case was argued on December 6, 2012.

Christopher Haga (California).  Counsel informed on November 1, 2011, that this case involves a state prosecution for possession of "assault weapons."  Mr. Haga is a gun collector.  Counsel informed in a February 26, 2013, letter that the firearms were undergoing an examination and a number have already been eliminated as so-called "assault weapons."  Counsel informed on July 18, 2013, that a motion to suppress will be filed.

Dorothy McKay (California).  The issue is whether the Second Amendment right to bear arms for self-defense is infringed by state laws that prevent a person from carrying arms for self-defense in some manner.  Her opening brief was filed in the U.S. Court of Appeals for the 9th Circuit on November 29, 2012.  The NRA Civil Rights Defense Fund filed amicus curiae brief supporting her position.

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COLORADO

Mountain States Legal Foundation (Students for Concealed Carry on Campus) (Colorado).  This was a lawsuit in state court against the Board of Regents of the University of Colorado. The university had a broad prohibition on the possession of firearms or other dangerous weapons.  The students claimed they have a statutory and constitutional right as adults to keep and bear firearms in defense of person and property.  The students won their case in the Colorado Court of Appeals. Students for Concealed Carry on Campus v. Regents of University of Colorado, 2010 WL 1492308 (Colo. App.).  On October 18, 2010, the Colorado Supreme Court agreed to review the case.  The National Rifle Association filed an amicus curiae brief on January 24, 2011.   Oral argument took place on June 8, 2011.  On March 5, 2012, the court affirmed the judgment of the Court of Appeals based on preemption grounds:  2012 Colo. LEXIS 114.

Gray Peterson (Colorado).   He is a resident of Washington State, where he has a license to carry a pistol concealed.  He also has a non-resident license to carry a pistol concealed from Florida and Utah.  Colorado doe not issue a license to carry a pistol concealed to a non-resident.  Colorado also does not recognize license reciprocity with Washington State or a license issued by another state to a non-resident.  However, Colorado does allow the unconcealed carrying of arms.  Denver forbids the carrying of arms concealed or openly without a Colorado license.  Therefore, in Denver Mr. Peterson is banned from carrying arms for self-defense outside his motor vehicle or home.  The U.S. District Court rejected a challenge on right to bear arms grounds and the comity clause of the U.S. Constitution. Peterson v. LaCabe, 2011 WL 843909 (D.Colo.).  An appeal was filed.  The funds amicus brief was filed in the U.S. Court of Appeals for the 10th Circuit on June 15, 2011.  Oral argument occurred on November 17, 2011.  The court issued an order on December 28, 2011, for a continued oral argument on March 19, 2012, and that amici curiae would participate in the oral argument.  On February 22, 2013, the court issued it decision.  It did not address the challenge to the Denver ordinance because it was knowingly waived.    The Colorado law that prevents issuance to a non-resident of a license to carry a pistol concealed does not offend the Second Amendment because the Second Amendment does not guarantee the right to bear arms concealed.  State law allows him to carry arms openly. Peterson v. Martinez, 2013 U.S. App. LEXIS 3776 (4th Cir. Feb. 22, 2013).

Robert E. Adams (Colorado and New Mexico).  This is a Department of Homeland Security firearm seizure case involving a 71-year old veteran and gun collector.  The accusation includes smuggling firearms from Canada. Thus far the grand jury has not indicted.  One search was conducted at his place of business and at his home in New Mexico.  A motion for return of property was filed in the U.S. District Court in New Mexico on June 26, 2013.  His warehouse in Golden, Colorado, was also raided and firearms were seized.  An administrative forfeiture action has been initiated in Colorado.

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quote
Gun control policies and attendant legislation are seen by many as the solution to the problem of criminal possession of guns. However, modern gun control efforts have not simply forbidden felons from possessing guns.
~ Kristian Spencer Roggendorf
Lake Oswego, Oregon 1st Place Winner, CRDF Writing Contest
quote
CONNECTICUT

Blue Trail Shooting Range (Connecticut).  This is an effort by adjoining property owners to shut down the range.  On June 4, 2008, a lawsuit was filed in state court in New Haven claiming the range is an endangerment to person and property and a public nuisance. An August 14, 2008, report in the New Haven Register states state officials from the Department of Environmental Protection say that the reopening of one of the shooting areas at the range will not pose a hazard to individuals using Tri-Mountain State Park, which borders the range.  A second lawsuit was filed on August 28, 2008, claiming a cause of action under the state environmental protection act.  In the first lawsuit a motion to dismiss was filed on February 17, 2009.  In the second lawsuit a motion to strike was filed on March 2, 2009. On October 29, 2010, the court dismissed the Town of Wallingford as a defendant. The consolidated actions were tried to the court on December 7, 8, 9, 14, 16 and 18, 2010.  On July 15, 2011, the court issued judgment in favor of the shooting range and other defendants.

M. Peter Kuck & James F. Goldberg (Connecticut).  These cases involve the revocation or denial of a permit to carry a pistol.  In each case the delay between the unfavorable action and the opportunity  for a hearing was from 14 to 22 months.  The issue is due process and incorporation of the Second Amendment through the Fourteenth Amendment.  Oral argument occurred before the U.S. Court of Appeals for the Second Circuit on September 17, 2009.  The case is captioned Kuck v. Danaher and Goldberg v. Danaher.  On March 23, 2010, the court held that a person has a liberty and a property interest in a Connecticut permit to carry in view of Connecticut's guarantee to bear arms for self-protection and the decisions of Connecticut courts.  The court further opined that a procedural due process claim was stated based on eighteen months delay between a permit denial and a hearing.  Kuck v. Danaher, 600 F.3d 159 (2d Cir. 2010).  Mr. Goldberg was also granted relief on March 23, 2010.  He challenged in U.S. District Court the firearm permit revocation procedures on due process grounds.  The court dismissed his complaint.  The Court of Appeals reversed that dismissal.  The case is scheduled to go to trial in U.S. District Court on February 5, 2013.

James F. Goldberg (Connecticut).  The issue was probable cause to arrest for the open and lawful carrying of a firearm.  He was arrested for breach of the peace, but the charge was dismissed.  His pistol and carrying permit were returned to him.  A lawsuit under 42 U.S. Code  1983 was filed in U.S. District Court.  The court denied relief on September 17, 2010.  An appeal was taken to the U.S. Court of Appeals for the Second Circuit.  Mr. Goldberg's appellate brief was filed on March 18, 2011.   Oral argument occurred on November 21, 2011.  The court in an unpublished opinion held on December 13, 2011, that given the lack of settled Connecticut law on the issue, reasonable officers could disagree on whether there was probable cause to arrest Mr. Goldberg for breach of the peace and accordingly the police officers were entitled to qualified immunity.

Barbara Doutel (Connecticut). Mrs. Doutel's husband has been charged with harassment for leaving a telephone message with a doctor's office.  Her and her husband's firearms have been seized.  By a court order of May 20, 2011, he is forbidden to possess firearms as a condition of his release.  Her firearms have been characterized as evidence and are held by the police.  She also cannot possess firearms because she and her husband share the same household.  On July 25, 2011, she filed a lawsuit in the U.S. District Court alleging violations of the Second and Fourth Amendments.

 

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DELAWARE

Jane Doe and Charles Boone v. Wilmington Housing Authority (Delaware).  The housing authority imposed a ban on the possession of firearms, even in the home. A lawsuit was filed challenging the ban as an infringement of the right to keep and bear arms.  In the wake of McDonald v. Chicago, 130 S.Ct. 3020 (2010), the housing authority suspended its ban on firearm ownership by tenants.  It adopted a new regulations on firearms October 25, 2010.  The lawsuit continued in U.S. District Court because the new regulation on possession of firearms in common areas, except incident to transportation through the common areas to one's personal home unit, was too restrictive.   A hearing and argument occurred on July 15, 2011.  The court held on July 27, 2012, that it would assume without deciding that the common area provision regulates conduct within the scope of the Second Amendment.  The court held that the common area provision is not presumptively lawful.  However, the court applied intermediate scrutiny and upheld the common area provision. Doe v. Wilmington Housing Authority, 2012 U.S. Dist. LEXIS 104976 (D. Del. 2012).  An appeal was taken to the U.S. Court of Appeals for the Third Circuit, where oral argument took place on May 23, 2013. On July 18, 2013, the case was sent to the Delaware Supreme Court for an opinion on Delaware's guarantee to keep and bear arms, which may be interpreted more broadly than the Second Amendment.

 

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DISTRICT OF COLUMBIA

Jennifer Wood (District of Columbia).  She is an active duty captain in the Intelligence Branch of the U.S. Army, with top secret clearance.  Police were responding to a disturbance call resulting from a verbal argument.  One of the police officers saw a loaded magazine on a dresser in her bedroom.  He asked for the location of the pistol and was told under the bed.  She was charged with failure to register a pistol and possession of a magazine with a capacity in excess of 10 rounds.  All charges were dismissed on April 25, 2013.

Asar M. Mustafa (District of Columbia). The Metropolitan Police Department denied on April 14, 2009, Mr. Mustafa's application to register a firearm.  The denial was based upon an arrest that subsequently resulted in a dismissal of all charges. The grounds for the denial are "history of violent behavior."  First of all, the charges that were dismissed did not involve violence.  Secondly, because he is presumed innocent and because no misconduct was proven after a hearing in which he has been able to confront his accuser, the denial should be reversed.   An appeal was filed to the Office of Administrative Hearings.  A hearing was held on October 28, 2009.  The Office of Administrative Hearings denied relief on February 3, 2010.  An appeal was filed in court.  The District of Columbia agreed to allow Mr. Mustafa to refile his application, and agreed that the dismissed charges would not be used against him.  In the interim, the parties agreed to hold the appeal in abeyance until his new application was processed.  His application was approved.  On May 2, 2012, the parties advised the D.C. Court of Appeals that the case was resolved and the appeal was withdrawn.  Mr. Mustafa was allowed to register his pistol.

Dave Magnus (District of Columbia).   He is challenging previous misdemeanor convictions under District of Columbia law for possessing a pistol and ammunition for the pistol in his home and for carrying a pistol in his home without a license.  The convictions occurred prior to the Supreme Court's decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008).  The superior court denied a motion for post-conviction relief.  An appeal was taken to the District of Columbia Court of Appeals.  His attorney requested that the fund file an amicus curiae brief.  Mr. Magnuss brief was filed on March 16, 2010.  The fund's brief was filed March 23, 2010.  Oral argument occurred on October 22, 2010.  The court held that he could challenge the conviction on Second Amendment grounds. Magnus v. United States, 11 A.3d 237 (D.C. App. 2011).

Frederick Baird (District of Columbia).  He was hunting in Virginia.  An officer spotted a gun bag in his truck and he was charged with possession of an unregistered firearm and possession of ammunition for an unregistered firearm.  On September 21, 2009, he pled guilty to attempted possession of an unregistered firearm.  The court did not order any of the seized property forfeited.  Nonetheless, the police refused to return to him his property.  He was provided with no notice reasonably calculated to inform him of the reason why the property was held and why it was not being returned.  A lawsuit was filed on March 18, 2010, in the United States District Court for the District of Columbia.  The court granted defendants motion to dismiss.  It held a Bivens remedy did not exist because D.C. Superior Court Rule of Criminal Procedure 41 (g) for return of property is an adequate remedy, and that defendant was entitled to qualified immunity. Baird v. Holton, 806 F.Supp.2d 53 (D.D.C. 2011).  An appeal to the U.S. Court of Appeals for the D.C. Circuit was filed.  Counsel informed on February 19, 2013, that an agreement was made to settle the case.  The government will return all the property.

David Leyland (District of Columbia).  He was visiting the District of Columbia.  He has a valid North Carolina permit to carry a pistol.  He was arrested after he asked a police officer at a security desk where to check his firearm when he was visiting the Washington Monument.  He pleaded guilty to possession of unregistered firearms, was given a 180 days suspended sentence, and placed on unsupervised probation for 6 months.  On August 9, 2010, counsel sent to the property clerk demanding the release of his property.  However, the firearms are being detained without a hearing and without forfeiture proceedings.  This is violative of due process.  A complaint pursuant to Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), was filed in U.S. District Court for the District of Columbia on December 30, 2010.  Defendant filed a motion to dismiss.  The court granted the motion.  It held that a Bivens action fails because  of a comprehensive procedural and remedial scheme for individuals seeking the return of seized property: Superior Court Rules of Criminal Procedure 41(g). Leyland v. Edwards, 797 F.Supp.2d 7 (D.D.C. 2011).  The case is on appeal to the U.S. Court of Appeals for the District of Columbia.  The issue is whether his right to due process was violated when the U.S. Park Police failed to initiate any proceedings to forfeit his property (firearms and ammunition) and whether Bivens applies to this case.  The opening brief was filed on January 13, 2012, and the reply brief on March 8, 2012.  Counsel received a letter dated April 23, 2012, from the U.S. Park Police informing that the firearms, ammunition, and holsters would be released.  Consequently, the injunctive relief request is now moot.

Matthew Corrigan (District of Columbia).  He contacted a telephone suicide hotline.  The police broke into his home and seized firearms and ammunition.  He was arrested and was charged with possession of unregistered firearms and possession of ammunition for unregistered firearms in the home.  He was released on bail on February 19, 2010.  He wants to challenge the registration statute. Counsel informed on January 31, 2011, that he filed motions to dismiss and to suppress.  Counsel informed on April 25, 2012, that the motion to suppress was granted. The government subsequently dismissed all charges.   A civil lawsuit has been filed.

William L. Duncan (District of Columbia).  He is a pastor of a Baptist church in Johnson City, Tennessee.  Pastor Duncan is licensed to carry a pistol  in Tennessee.  He visited the District of Columbia and was staying at a  hotel.  Private security at the hotel asked if he had any firearms.  He stated that he did and that the pistols were in his motor vehicle.  He was arrested and charged in the District of Columbia with carrying a pistol without a license, a felony punishable by up to 5 years imprisonment.  On July 16, 2010, all charges were dismissed in D. C. Superior  Court.  He attempted to retrieve his two pistols that are still in the custody of the Metropolitan  Police Department.  He was formally denied in a written denial dated December 22, 2011.  A complaint appealing the denial was filed in Superior Court of the District of Columbia on January 17, 2012.

James Brinkley (District of Columbia).  He is a resident of Maryland and a licensed special investigator.  He was transporting an unloaded pistol locked in a lock box  in the trunk of his automobile.  Nonetheless, he was charged on September 8, 2012, in Superior Court with  possession of an unregistered firearm, possession of ammunition, and possession of a large capacity ammunition feeding device because the magazine for the pistol could accept more than 10 rounds.  He was found not guilty in D.C. Superior Court on December 4, 2013.  The court held that the transportation safe harbor under federal law, 18 U.S. Code § 926A, applied and its local equivalent, D.C. Code § 22-4504.02.

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FLORIDA

Michael Carr and Annie Carr (Florida).  He was charged twice in Florida with a criminal offense, but the charges were dropped.  However, this occurrence has resulted in him being placed on a list of known firearm owners.  This is in violation of Floridas preemption statute.  Florida Statutes § 790.335.  A lawsuit was filed in the Seminole County Circuit Court on August 11, 2010. The complaint alleges a violation of § 790.335, trespass, invasion of privacy, civil theft, battery, and negligent investigation.  Information submitted by counsel on September 6, 2012, informs the case is in the discovery stage.  Annie Carr's claim is based on an unwarranted seizure of firearms and refusal to return firearms.  Counsel informed on November 30, 2012, that it took almost one year of litigation before the circuit court ordered the sheriff to return the firearms to Mrs. Carr.

Richard Lander (Florida).  He has a federal firearms license.  However, he was denied a City of  Largo home office permit to sell firearms from his home.  The police department opined that it would be a legal business and that they did not think they could legally oppose.  However, the City of Largo development director decided to label the business a potential nuisance or hazard and denied the permit.  The administrative appellate process was first utilized in an attempt to overturn the denial before appealing to the courts.  After the administrative process was exhausted, on July 18, 2011, a lawsuit was filed in circuit court.  The lawsuit was settled.  City Attorney Alan Zimmet announced on October 2, 2012, the city agreed to approve Mr. Landers permit.

Theodore S. Fries, Sr. (Florida).  This is a BATF case. He was charged with dealing in firearms without a federal firearms license and selling a firearm to a person from Georgia.  His trial started June 20, 2011.  The jury acquitted him of dealing in firearms without a federal firearms license, but convicted him of selling to a nonresident.  The case was appealed to the U.S. Court of Appeals for the Eleventh Circuit.  The court on August 6, 2013, reversed the conviction and ordered the entry of a judgment of acquittal.  The government failed to introduce evidence that Mr. Fries or the person to whom the firearm was transferred did not have a federal firearms license. United States v. Fries, 2013 U.S. App. LEXIS 16247.

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GEORGIA

Dennis Kast (Georgia). The issue was whether the lawful carrying of a firearm provides probable cause to search the person and his motor vehicle.  No charges  were filed.   A civil rights action was filed under 42 U.S. Code  1983 in the Cobb County Superior Court on February 18, 2011. The claim was based on the Second and Fourth Amendments and the analogous guarantees of the Georgia Constitution.  Counsel informed on August 27, 2012, the defendants, including the Cobb County Police Department, agreed to retrain their patrol officers, with a course plaintiff selected, regarding the rights of citizens to bear arms and the proper function of police vis-a-vis armed citizens. That development concluded the case.

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IDAHO

Hauser Lake Rod and Gun Club(Idaho). The club has been in existence for more than 63 years. Houses have been built around the club and noise complaints have been made. It is located in the county. It is located outside the city but within the city's area of impact. The City of Hauser now seeks to reduce the club's days of operation, including reducing hours to only allow shooting on one day per weekend. This is in conflict with Idaho's sport shooting range protection law. The club wanted a building permit to construct an accessory storage building on its property. Allegations by some people were made of alteration by the club in the non-conforming use. The city has issued a violation notice to the club, claiming a violation of the City Municipal Code. It is being appealed. The city also informed that the building permit would not be processed until the violation notice is resolved. The Idaho Constitution limits a city's powers to the area within its municipal boundaries. The city's and county's actions against the club for a violation of city ordinance violate the Idaho Constitution. On June 21, 2013, a petition for declaratory judgment was filed in the district court of Kootenai County. On August 1, 2013, the County Commissioners ruled that the City of Hauser had no authority to render any decision regarding the club. All pending actions of the city against the club were vacated. The county will be the only government that the club will deal with in the future. The lawsuit against the city and county is still pending.

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ILLINOIS

Otis McDonald & National Rifle Association (Illinois).  Lawsuits were filed in U.S. District Court challenging Chicagos handgun, which is similar to the handgun ban struck down on Second Amendment grounds by the U.S. Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008).  The issue is whether the Second Amendment applies to the states through the Fourteenth Amendment.  The court denied relief.  An appeal was taken to the U.S. Court of Appeals for the 7th Circuit.  That court also denied relief.  The U.S. Supreme Court agreed to hear the case of Otis McDonald on September 30, 2009.  The court did not issued a decision in National Rifle Association v. Chicago.  However, the court is still treated the NRA as a party for the purpose of filing the merits brief.  The merits briefs were filed by Mr. Donald and by NRA on November 16, 2009.  Supporting friend of the court briefs were filed no later than November 23, 2009.  Chicago and Oak Park filed their brief no later than December 30, 2009.  Oral argument occurred on March 2, 2010.  On June 28, 2010, the U.S. Supreme Court held that the Second Amendment applies to states and local government through the Fourteenth Amendment. McDonald v. Chicago, 130 S.Ct. 3020 (2010).  On August 25, 2010, the 7th Circuit panel held the issue is now moot because the challenged ordinance was repealed and a new ordinance enacted.  Attorney fees are being pursued pursuant to 42 U.S. Code  1988.  On June 2, 2011, the U.S. Court of Appeals held in NRA v. Chicago that NRA was a prevailing party and that it was entitled to attorney fees.  Thus the adverse decision of the  U.S. District Court was reversed.  The district court subsequently granted attorney fees to the NRA as a prevailing party.  National Rifle Association v. Oak Park & Chicago, 2012 U.S. Dist. LEXIS 87686. On October 4, 2012, Chicago issued to NRA a check for $663,294.10 for NRA's attorney fees. On October 11, 2012, Oak Park issued to NRA a check for $663,294.10 for NRA's attorney fees.  On November 21, 2012, the court awarded supplemental attorney's fees of $98, 000.  Chicago will pay $49,000 and Oak Park will pay $49,000.

Timothy Allen Walker (Illinois).  This case involved the seizure and retention of firearms after a charge of making a false police report was filed.  The police seized all firearms in the home, including those belong to Mr. Walker's wife and son. On August 14, 2012, a complaint for the return of the firearms was filed in court.  On November 16, 2012, Mr. Walker pled guilty to the misdemeanor of disorderly conduct and was placed on conditional discharge.  That same day the court issued an order for the return of the firearms.

Lloyd Turentine (Illinois).  Mr. Turentine is a security guard with all proper papers.  Nonetheless, he was charged with unlawful carrying of a firearm.  He was found not guilty on September 29, 2011. The City of Chicago is refusing to return his firearms subsequent to an acquittal and a denial of a city motion to confiscate the firearms.  This refusal will require further litigation.   A similar fund case was successfully litigated in Nassau County, New York. Razzano v. County of Nassau, 765 F.Supp.2d 176 (E.D.N.Y. 2011).  A complaint was filed in U.S. District Court on July 22, 2013.  The crux of the complaint is to compel Chicago and the Chicago Police Department to adopt a policy for post-seizure return of firearms taken from people who were not charged with a crime, or who were acquitted of the charges.  The relief sought includes return of the seized firearms.

Shawn Gowder (Illinois).  He has an Illinois Firearm Owner's Identification card.  However, in 1995 he was convicted of a misdemeanor offense based on his possession of a firearm.  A Chicago ordinance prevents him from obtaining a Chicago Firearm Permit because of that misdemeanor conviction.  He applied for a Chicago Firearm Permit and was denied.  His administrative appeal was denied.  Mr. Gowder subsequently filed in U.S. District Court a complaint challenging the denial on constitutional grounds.  The U.S. District Court on June 19, 2012, voided the Chicago ordinance forbidding a person with a misdemeanor firearm possession conviction from obtaining a Chicago Firearm Permit because it is unconstitutionally void for vagueness and because it violates the Second Amendment guarantee to keep and bear arms. Gowder v. City of Chicago, 2012 U.S. Dist. LEXIS 84359.  On October 10, 2012, Chicago issued to NRA a check for $125,000 for NRA's attorney fees.

Matthew Wilson and Others (Illinois).  This is a challenge to Cook County's so‑called assault firearm ordinance.  The circuit court dismissed the challenge, and the appellate court affirmed. However, the Illinois Supreme Court reversed the challenge based on second amendment grounds and allowed the challenge to proceed in the circuit court:   "we hold that the Ordinance does not violate the due process and equal protection clauses of the United States Constitution and therefore affirm the judgment of the appellate court and trial court dismissing count I and count VI of the first amended complaint. Additionally, we hold that plaintiffs have sufficiently pleaded a cause of action to withstand a section 2‑615 motion to dismiss on their second amendment challenge under count IV of the first amended complaint. Accordingly, we affirm in part and reverse in part, and remand to the trial court for further proceedings on count IV." Wilson v. Cook County, 360 Ill.Dec. 148, 968 N.E.2d 641 (2012).  The case is now in the Cook County Circuit Court, where a hearing on the merits will take place, complete with expert witnesses.

Chuck's Gun Shop (Illinois).   Counsel informed on November 6, 2012, that this case will involve a challenge to the Cook County firearm tax ordinance.   The challenge to the $25 per firearm tax will be based mainly on the Second Amendment,  the Fourteenth Amendment, and the uniformity provision of the Illinois Constitution.

Scott Connour (Illinois).  In Illinois you need a firearm owner's identification card (FOID) to possess firearms and ammunition.  Fourteen years ago he had a misdemeanor domestic violence conviction.  The McLean County circuit court removed all disabilities and restored Mr. Connour's right to possess a FOID card and, thereby, firearms and ammunition.  The state filed a notice of appeal.  On September 12, 2013, the Illinois Supreme Court in Coram v. Illinois, 2013 Ill. LEXIS 854, held that the granting of an appeal to obtain a FOID removes all disabilities and restores the right to possess firearms and ammunition.

 

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IOWA

Donald Cobb (Iowa).  The issue was whether the conduct amounted to aggravated assault by the display of a firearm.  Mr. Cobb was the victim of threats against his life, to the point where he obtained a restraining order against the father of the so-called victim.  The so-called victim came to confront Mr. Cobb in an angry and menacing manner.  However, when he saw that Mr. Cobb was wearing a firearm, he backed off and called the law.  He claimed Mr. Cobb unclipped his holster.   Counsel informed that on August 15, 2012, Mr. Cobb was found not guilty by a jury.  Counsel also informed that he had to file an application for return of seized property to get Mr. Cobb's pistol returned.

 

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KANSAS

Billy Barker (Kansas).  The issue was self‑defense.  Mr. Barker was facing a voluntary manslaughter charge.  The event occurred on March 12, 2012.    The deceased turned out to be not armed,  but had a reputation for going armed and for very violent behavior.  At the time of the shooting, the deceased was attempting to pull Mr. Barker from his truck.  Defense counsel poured through hours of audio and transcripts of witness interviews and crime scene photographs.  He was able to show that deadly force was justified.  At the preliminary hearing the Kansas Attorney General's Office filed a motion to dismiss.  The court granted the order of dismissal on February 1, 2013.

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KENTUCKY

Lt. Michael Behenna (Kentucky & Iraq).  First Lieutenant Behenna was a platoon leader in Iraq with the 101st Airmobile Division.  On April 21, 2008, his platoon was hit by an explosion that killed two of his soldiers and seriously wounded two soldiers.  He detained a suspected Al Qaeda member.  During the interrogation the suspect threw a rock that missed Lt. Behennas head and moved toward him.  Fearing for his life, Lt. Behenna fired twice and killed the suspect.  In July 2008 he was charged with premeditated murder.   The government claimed the suspect was executed and that the path of the bullets into the body did not support self-defense.  The government claimed it had no exculpatory evidence.  He was convicted of assault and unpremeditated murder.  However, it was subsequently revealed that Dr. Herbert MacDonnell, a government witness, concluded that the path of the bullets was consistent with self-defense.  However, motions for a new trial based on the exculpatory evidence were denied.  Lt. Behenna was initially sentenced on March 20, 2007, to 25 years imprisonment.  The sentence was subsequently reduced to 15 years.  The case was appealed to the U.S. Army Court of Criminal Appeals.  The main issue was that favorable exculpatory forensic evidence was withheld that collaborated his claim of self-defense.  Nonetheless, the court affirmed the conviction on July 21, 2011.  An appeal was filed in the U.S. Court of Appeals for the Armed Forces.  On July 5, 2012, the court upheld the conviction.  It held that even assuming the information  Lt. Behenna  asserted the government failed to disclose was favorable, it was immaterial in regard to findings and sentencing because the evidence substantially overlapped with other evidence presented by other defense experts.

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quote
The shootings of the late '90s leave a haunting question to be answered. Why has the Assault Weapons Ban of 1994 apparently failed? Far more mass shootings have happened since the Assault Weapons Ban than ever happened before it.
~ Henry S. Queener
Birmingham, Alabama 2nd Place Winner, CRDF Writing Contest
quote
LOUISIANA

Errol Houston (Louisiana).  This was an action by Errol Houston under 42 U.S.C.  1983, claiming defendants violated his right to keep and bear arms  and to due process under the Fourteenth Amendment  by retaining his lawfully‑seized firearm after the district attorney refused charges. The district court dismissed under Federal Rule of Civil Procedure 12. The Court of Appeals on rehearing by the panel noted the long‑established prudential rule that federal courts do not decide  constitutional issues where there is an adequate state‑law basis to resolve the dispute.  In that regard, arguably state law will resolve whether public officials could retain Houston's handgun, whether as a  firearm or simply as his property, following the entry of nolle prosequi by the district attorney. The court was required to accept the truth of the well‑pleaded allegations in Houston's complaint that the government's refusal to restore the firearm to Houston following the second nolle prosequi (if not earlier) arguably placed it in violation of state‑law provisions.  The court vacated the trial courts dismissal of Houston's Second Amendment and procedural due process claims.  It noted that on remand, if Houston does not secure return of his firearm under state law, those two constitutional claims must be addressed. Houston v. New Orleans, 682 F.3d 361 (5th Cir. 2012).

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MARYLAND

Mark E. Furda (Maryland).  Maryland's intermediate court of appeals, Court of Special Appeals of Maryland, held that he was not committed to a mental institution for purposes of the firearms law.  Furda v. State, 193 Md.App. 371, 997 A.2d 856 (Md.Ct.Spec.App. 2010).  For purposes of statute, he was not involuntarily committed to a mental institution.  The initial, ex parte judicial review of a petition for an emergency, involuntary mental health evaluation is not sufficient to constitute a commitment under federal law, so as to bar an admittees right to possess a firearm.  He was released without a hearing, and with a finding that there is no evidence of psychosis, confusion, or withdrawal.  However, a companion decision from the same court nonetheless upheld a perjury conviction for writing no to the question on a firearm purchase form whether he was committed to a mental institution. Furda v. State, 194 Md.App. 1, 1 A.3d 528 (Md. Ct. Spec. App. 2010).  A petition for review was granted by the Maryland Court of Appeals.  Oral argument occurred on April 8, 2011.  The court affirmed the conviction on August 17, 2011.  It held that Court of Special Appeals' decision reversing trial court's order that he was committed to a mental institution did not apply retroactively to time when defendant completed firearm purchase application.  Furda v. State, 2011 WL 3586568.

Charles Francis Williams (Maryland).  The issue is whether the U.S. Supreme Courts  Heller and McDonald decisions only extend to carrying arms in the home as held by the Maryland Court of Appeals in Williams v. State, 10 A.3d 1167 (Md. 2011). A petition for a writ of certiorari was filed in the U.S. Supreme Court on April 5, 2011.  Maryland filed its opposition on July 15, 2011. Counsel for Mr. Williams filed his reply on July 26, 2011. The petition for a writ of certiorari was denied on October 3, 2011.

Raymond Woollard (Maryland).  The U.S. District Court held that Maryland's requirement of a "good and substantial reason" for issuance of a permit to carry a handgun impermissibly infringes the right to keep and bear arms under the Second and Fourteenth Amendments. Woollard v. Sheridan, 2012 U.S. Dist. LEXIS 28596.  Maryland has appealed the decision to the U.S. Court of Appeals for the 4th Circuit.  Matthew Fender of McGuire Woods of Richmond, Virginia, provided pro bono services to the fund in the preparation and filing of an amicus curiae brief.  The Attorney General filed the state's appellate brief on June 15, 2012.  The fund filed its amicus brief on August 2, 2012.  The court ordered that this case be expedited and calendared oral argument for October 24, 2012.  The court reversed the trial court. Woollard v. Gallagher, 2013 U.S. App. LEXIS 5617 (4th Cir. March 21, 2013).  It applied intermediate scrutiny.  A petition for rehearing en banc was filed on April 4, 2013, and denied on April 16, 2013. A petition for a writ of certiorari has been filed in the U.S. Supreme Court.

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MASSACHUSETTS

Raymond Holden (Massachusetts). He was charged with domestic violence.  The charge was dismissed.  His license to carry a pistol was suspended.  The Worcester District Court ordered it reinstated on March 13, 2006.  The chief then refused to reinstate and instead revoked it.  Mr. Holden's second appeal to the district court was also successful.  The city appealed to the superior court.  The superior court on May 21, 2007, sent the case back to district court for a full hearing.  Gemme v. Holden, 2007 WL 1631265 (Mass. Super.).   A notice of appeal was filed.  Mr. Holden's attorney advised in a November 23, 2007, letter that his brief was filed in the Massachusetts Appeals Court.  He argued on appeal that once the district court determined that the police chief abused his discretion, and ordered the license reinstated, and police chief instead revoked the license, and the court again ordered the license reinstated after the police chief was not prepared to present any new grounds or evidence which had not previously been heard, then the rule of claim preclusion applies.  Claim preclusion provides that when an issue has been actually litigated and determined by a valid and final judgment, and determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same claim or a different claim.  Counsel informed that a hearing took place before the Appeals Court on June 11, 2008.  That court held that the matter should go back to the district court for another hearing.  On July 1, 2010, the district court allowed the deposition of the police chief.  The purpose of the deposition is to establish that the standard for the granting or revocation of a firearm license is over broad and vague.  A motion to amend the petition was filed on September 10, 2010. On February 7-8, 2011, an evidentiary hearing took place before the court.  Mr. Holden on April 11, 2011, filed in the district court a Memorandum in Support of the Petitioner's Constitutional Claims.  On October 17, 2011, the court ordered reinstatement of the license on the basis of the chief's abused discretion.  The constitutional issues were held inapplicable because of the judge's decision that the Second Amendment does not apply outside the home.  Both parties appealed.  The police chief filed a petition for review in the Superior Court on December 6, 2011.  Counsel for Mr. Holden filed his response on December 22, 2011.  Counsel informed on October 9, 2012, that he filed in Superior Court a memorandum in opposition to the police chief's motion for judgment on the pleadings and in support of Mr. Holden's constitutional challenge to the "suitable person" disqualification in the statute.  After a hearing on March 7, 2013, the superior court denied relief on September 20, 2013.  A notice of appeal was filed.

Mirko Chardin (Massachusetts).   He was denied a license to carry a pistol because he is a prohibited person based on a juvenile adjudication for carrying a pistol without a license when he was 14 years old.  It is a ban for life.   He is now 31 years, has a clean record,  and is a college graduate (bachelor and master degrees and working on a Ph.D.).  He is a public school teacher and ordained minister.   The Boston Municipal Court denied relief on March 31, 2011.  A petition for writ of certiorari was filed in the Massachusetts Supreme Court on October 13, 2011. The Massachusetts Attorney General intervened in the case.  Mr. Chardin's brief was filed on July 27, 2012, and his reply brief on November 9, 2012.  Oral argument occurred on February 4, 2013.  The Massachusetts Supreme Court held that, while Chardin could not be sentenced to prison when he was 14 years old and that a juvenile adjudication is not a conviction of a crime, nonetheless, when he was 14 he committed an unlawful act that was a felony and thus could be constitutionally barred from keeping and bearing arms. Chardin v. Police Commissioner of Boston, 989 N.E.2d 392 (Mass. 2013).  A petition for a writ of certiorari has been filed in the U.S. Supreme Court.

John  DiPiero (Massachusetts). His license to carry a firearm and his firearm identification card were summarily suspended because the police chief deemed him to be an "improper person."  His firearms were taken from him.   This unfavorable decision was based on a report that Mr. DiPiero acted in a confrontational manner with a neighbor and family members.  The dispute arose over the ownership and tenancy of real property.  The dispute over the property resulted in a civil court action.  No criminal charges were filed.  The complainants stated Mr. DiPiero owned firearms and they were afraid of him.  An appeal from the revocation and seizure of firearms was filed in the district court.  The court held that Mr. DiPiero failed to prove that the decision of the police chief was arbitrary, capricious, or an abuse of discretion.  An appeal was filed in the superior court on March 24, 2011. Now that the Second Amendment is binding on the states, the right to keep and bear arms cannot be reduced to an administrative privilege that can be summarily suspended or revoked at any time based on the flimsiest of evidence.  Plaintiff filed his memorandum of law in support of his motion for judgment on the pleadings in superior court.  The attorney general filed a motion to intervene on April 17, 2012.

Commonwealth Second Amendment, Inc., Russell Jarvis, David Flynn, Robert Crampton (Massachusetts).  Counsel informed in a December 6, 2011, letter that Massachusetts allows police agencies to seize firearms and ammunition and then turn them over to privately operated bonded warehouses for storage.  The warehouse must be paid storage and other fees to obtain a return of property.  Often the warehouse fails to respond timely, fees quickly accumulate, and the property is auctioned off.  There is no provision for a hearing to contest the ongoing deprivation of property.  There is also inadequate regulation of the warehouses.  Fees are not regulated.  A lawsuit under 42 U.S. Code 1983 was filed against Massachusetts gun seizure laws and practices in the U.S. District Court on March 27, 2012.  On October 4, 2012, there was an initial hearing.  The judge suggested to the office of the attorney general that regulations should be drawn up.

John H. Arigoni (Massachusetts). In a December 16, 2011, letter counsel informed that Mr. Arigoni was in his son's apartment at night when a man let himself in and attempted to steal a TV.  He fired one round and missed.  He faces charges of  attempted murder, assault with a deadly weapon, and discharging firearm within 500 feet of a building.  Mr. Arigoni's defenses were defense of self and defense of home.  Defense counsel informed in a March 11, 2013, letter that all charges were dismissed.

 

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MICHIGAN

Kyle C. Nuyen (Michigan).  The issue was self‑defense in the home.  The charges stemmed from his defending his 4-year old daughter and himself from what he reasonably believed to be an intruder in his home. The intruder, unbeknownst to Mr. Nuyen, was an employee of a rental company who had come to repossess a washer and dryer.  Mr. Nuyen was only four days late on the payment.  No shots were fired.  He was convicted of felonious assault with a firearm on September 10, 2009.  The trial court sentenced him to 2 days in jail for the felonious assault and to the mandatory 2 years for being armed with a firearm.  The conviction was appealed to the Michigan Court of Appeals.  The defense filed its brief on August 14, 2010, and the prosecution filed its brief on August 27, 2010.  The court affirmed the conviction in an unpublished opinion on November 17, 2011.

Estate of Robert Binkley (Troy Binkley Personal Representative of Estate) (Michigan).   This case involved the seizure and retention of firearms found in a safe and in a locked bedroom.  A lawsuit was filed under 42 U.S. Code  1983 in the Shiawassee County Circuit Court.  Counsel informed on March 3, 2011, that the court granted defendant's motion for summary judgment based on governmental immunity.   However, partial relief was granted to the plaintiff.  The court entered judgment in favor of Troy Binkley only for the firearms found in the gun safe.    An appeal was taken to the Michigan Court of Appeals.  The Court of Appeals on June 21, 2012, in an unpublished opinion, upheld the trial court.

Jeffrey Haman (Michigan).  Jeffrey Haman has a license to carry a pistol concealed.  He also has a right to openly carry his pistol and he exercised this right. He was arrested, but not charged.  He filed a civil rights action in federal court under 42 U.S. Code sec. 1983 on February 24, 2012.  The complaint included a cause of action based on the right to bear arms. Counsel informed in a May 25, 2012, letter that the case was resolved.  Mr. Haman accepted a settlement of $5,000 and an agreement by the City of Warren to retrain its police officers on the issue of open carry in Michigan.

Joshua Kenneth LaPointe (Michigan).  He had a private shooting range on his property.  He improved it based on the recommendation of the Michigan Department of Natural Resources.  Neighbors continued to complain about noise.  He was charged with breach of the peace on June 10, 2012.  However, Michigan has a range protection law.  Mr. LaPointe entered a plea of not guilty.  Mr. LaPointe's counsel filed a brief on October 8, 2012, requesting the district court to find that the Michigan Sport Shooting Ranges Act operates as a bar to prosecution for use of the range predicated on a generic breach of the peace ordinance, and that such a prosecution is in violation of the range protection act and in violation of the right to keep and bear arms under the federal and state constitution.  Counsel informed on October 1, 2013, that charges were dismissed.

 

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MINNESOTA

Minnewawa Sportsman's Club (Minnesota).  This is a shooting range case.  Aitkin County was attempting to unilaterally amend the terms of an existing and valid conditional use permit to include restricted hours and days of operation where no such restrictions or conditions are contained in the original permit issued by the county.  The Minnesota Court of Appeals held "we agree with Minnewawa that its limited conditional-use-permit application does not open the door for the county to add conditions to the clubs existing permit for use as a firearms range ..... But because the permit imposed several reasonable conditions related to the addition of an archery range and a new road, we affirm in part." Minnewawa Sportsman's Club v. County of Aitkin, 2008 WL 3144945 (Minn. App.).  The matter subsequently litigated with the county was the county's claim that there are specific hours and days restricting the use of the range and that the club has violated those restrictions.  Counsel informed on November 30, 2010, that the litigation was in the discovery phase.  Counsel finally informed on August 30, 2012, that the matter was successfully concluded in district court, and the club members went home smiling.

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MISSOURI

Lake Lotawana Sportsmen's Club (Missouri).  Counsel for this shooting range informed on September 16, 2011, that the county is attempting to shut down the range.  A new neighbor complained that a bullet from the range had struck his house.  Investigation by the sheriff's department proved that the bullet did not come from the range.

Timothy Ray Nolan (Missouri).  In 1974 he was convicted of carrying a concealed weapon, a felony.  He completed his probation and was given a judicial pardon on October 11, 1976.   The issue was whether a 1976 judicial pardon for a felony removes the prohibition on keeping and bearing arms. The Circuit Court of St. Louis County on August 23, 2012, ruled in favor of Mr. Nolan and  issued an order directing the police department to issue him the certificate of qualification for a concealed carrying of a firearm.  The certificate of qualification recognizes the full restoration of civil rights, including the right to bear arms.  The government chose not to appeal.

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MONTANA

Frank Van der hule (Montana).  The issue is whether Montana's restoration of rights satisfies the requirements of 18 U.S. Code section 921(a)(20), or is it insufficient based on the holding in Caron v. United States, 118 S.Ct. 2007 (1998), which held a person cannot be convicted under federal law of being a felon in possession of a firearm stemming from a state felony conviction if the state law that removed the disability allows the person to possess all firearms (rifle, shotgun, pistol).  On the other hand, a person may be convicted under federal law of being a felon in possession of a firearm stemming from a state felony conviction if state law allows such a person to possess only certain firearms, e.g., rifles and shotguns, but not pistols.  In this case, Mr. Van de hule was denied permission to purchase a hunting rifle following a background check. A lawsuit was filed.   Plaintiff subsequently filed a motion for summary judgment.  The government likewise filed a motion for summary judgment.  The court held on September 21, 2007, that Montanas refusal to grant a license to carry a pistol to a person whose civil rights have been restored meant that under Caron he could not possess any firearm under federal law.   The question whether Montana law grants a licensing official discretion to grant the carrying license to a person with fully restored rights was certified to the Montana Supreme Court.  The Montana Supreme Court held on January 27, 2009, that the restoration of full rights does not wipe away the conviction.  Van Der Hule v. Mukasey.   Consequently, a person with restored rights may be denied a license to carry a pistol concealed.  Van der hule moved to  amend his complaint in U.S. District Court to include a Second Amendment claim.  The court granted the request on September 29, 2008.  The amended complaint seeks declaratory relief that the full restoration of rights by Montana no longer makes him a prohibited person under 18 U.S. Code  922(g)(1), and that the federal background check system should be order to issue a proceed response to a background check.  His motion for summary judgment was filed June 15, 2009.  The court denied relief on September 15, 2009.  It ruled that his inability to obtain a Montana license to carry a concealed firearm means that he falls under the all or nothing prohibition established in the Caron v. United States decision.  A notice of appeal was filed to the U.S. Court of Appeals for the 9th Circuit.   On June 28, 2010, the U.S. Supreme Court held that the Second Amendment applies to states and local government through the Fourteenth Amendment. McDonald v. Chicago, 130 S.Ct. 3020 (2010).  Mr. Van Der Hule's principal brief was filed in the U.S. Court of Appeals on August 29, 2011, and the reply brief on October 25, 2011.  The government filed its brief on September 27, 2011.

Bob Hayes and Eyrie Shotgun Ranch (Montana).  Counsel informed on May 10, 2012, that this is an effort to shut down a shooting range.  The case has been to the Montana Supreme Court once.  The case is currently before the Board of Adjustments (zoning board) after remand from the district court. It is suspected that the case will go back to the Montana Supreme Court.  Counsel for Mr. Hayes and the Eyrie Shotgun Ranch is seeking an amicus curiae brief.  This will require the services of an attorney in Montana.

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NEBRASKA

Robert R. Bennie, Jr. (Nebraska).  He filed in U.S. District Court a lawsuit under 42 U.S. Code section 1983 against state officials (banking and finance) for retaliation because of the exercise of his First Amendment right to support the Second Amendment.  The complaint was filed on June 13, 2011.  Mediation occurred on December 18, 2012, but was not successful.

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NEW JERSEY

Association of New Jersey Rifle & Pistol Clubs v.  Christie (New Jersey).  On January 17, 2010, a complaint and request for injunctive relief were filed in U.S. District Court challenging the newly enacted one handgun purchase per month law.  Among other things, under New Jersey law traditional B-B, pellet, and air pistols are included in the definition of handgun.  This is preempted by federal law,  15 U.S. Code § 5001.  The defendants filed their motion to dismiss.  The defendants then filed an opposition to the plaintiffs' motion for a preliminary injunction.  On March 23, 2010, the association filed a brief in opposition to the state's motion to dismiss.  On April 6, 2010, the association filed its reply brief in further support of its motion for a preliminary injunction.  A second amended complaint was filed on October 1, 2010.  The defendants filed their motion and brief to dismiss the amended complaint on January 20, 2011.  The defendants filed their opposition to injunctive relief on January 21, 2011.  Plaintiffs filed their brief in support of summary judgment on March 11, 2011.  The state filed its opposition on April 5, 2011.  The plaintiffs filed their reply to the state's opposition on July 5, 2011.  Oral argument occurred on October 12, 2011. The court ruled in favor of the defendants on February 2, 2012.  A notice of appeal was filed on March 2, 2012.  Appellants opening appellate brief was filed on June 4, 2012, in the U.S. Court of Appeals for the Third Circuit.  The court held on January 30, 2013, that state law merely regulated and did not prohibit B-B, pellet, and air guns; thus the federal law did not preempt state law.  The denial of injunctive relief was upheld.

Gregg C. Revell & N.J. Rifle and Pistol Clubs, Inc. (New Jersey).  He is a resident of Utah with a Utah license to carry a pistol.  He was transporting his firearm in compliance with the law when he arrived at the airport and declared the firearm as required by law.  This is a case where the arrested man's conduct was clearly not criminal under 18 U.S. Code § 926A.  Consequently, charges were dismissed.  However, his property was not returned and he needlessly spent time in jail.  A civil rights action was filed, under 42 U.S. Code § 1983, in the United States District Court for the District of New Jersey on January 27, 2006.  Counsel informed on September 12, 2008, that Mr. Revell's firearm and other property were eventually returned to him.  The trial court dismissed Mr. Revell's complaint on March 31, 2009, based on qualified immunity and based on a view that the federal law did not protect him because he spent one night in a hotel when he missed his flight. Revell v. Port Authority of New York and New Jersey, 2009 WL 901855 (D.N.J. March 31, 2009). An appeal was filed by Mr. Revell.  The trial court's dismissal of the complaint by the Association of New Jersey Rifle & Pistol Clubs, Inc., based on lack of standing and denying motion for leave to amend, was reversed on April 1, 2009, by the U.S. Court of Appeals for the Third Circuit. Revell v. Port Authority of New York and New Jersey, 2009 WL 840549 (U.S. Ct. App. 3d Cir., April 1, 2009).  Oral argument occurred on January 26, 2010, in the U.S. Court of Appeals for the Third Circuit.  On March 22, 2010, the court agreed that Mr. Revell found himself in a difficult predicament through no fault of his own.  However, relief was denied because his conduct did not fit § 926A because of the overnight stay in the hotel, and thus there was probable cause to arrest. Revell v. Port Authority, 598 F.3d 128 (3d Cir. 2010).   A petition for a writ of certiorari was filed in the U.S. Supreme Court and denied on January 18, 2011: 131 S.Ct. 995 (2011).  The separate lawsuit by the Association of New Jersey Rifle and Pistol Clubs, Inc., was denied.  The court held that § 926A did not create a right to relief under 42 U.S. Code § 1983.  It further held § 926A means "that an ambulatory plaintiff who intends to transit through Newark Airport is outside the coverage of the statute."  The concurring opinion stated § 926A is not restricted to vehicular travel. Association of New Jersey Rifle and Pistol Clubs, Inc. v. Port Authority of New York and New Jersey, 2013 U.S. App. LEXIS 19037 (U.S. Ct. App. 3d Cir., Sept. 13, 2013).

SARCO, Inc. (New Jersey).  Counsel informed on January 14, 2009, SARCO has been in the business of firearm wholesaler and retailer for 47 years.  It has 40 employees.  Inspections by BATF and the state have been satisfactory in the past.  Now the state moved to revoke its license.  The problem surfaced when it was discovered a rogue SARCO employee stole firearms from SARCO.  The missing firearms resulted in a deficient state inspection.  Thereafter, the State Police found and arrested this rogue employee and were able to recover most of the firearms.  SARCO was accused of inadequate supervision of employees and inadequate inventory control.  SARCO was denied relief in the superior court.  The case was appealed to the Superior Court Appellate Division.  On April 13, 2011, the court upheld the revocation of the license.  The denial of a renewal application has nothing to do with the character or integrity of the applicant or its officers.  Any conduct that may present a danger to the public constitutes sufficient grounds for a denial.  In re SARCO, 2011 WL 1376286.  The corporation subsequently moved to Pennsylvania.

Brian D. Aitken (New Jersey).  He has been charged with violating state law banning the possession of a large capacity magazine (more than 15 rounds).  He has also been charged with unlawful possession of a handgun and hallow‑point ammunition.  The property was found in the trunk of his car.  The firearms were unloaded.  He was moving from Colorado. His defense attorney claims he has defenses to the charges, including a federal law defense (18 U.S. Code  926A).  At the jury trial the judge made several adverse rulings on the admissibility of evidence.  Mr. Aitken was convicted for possession of hollow point ammunition, possession of a handgun without a permit, and possession of a large capacity magazine.  On August 27, 2010, he was sentenced to 7 years in prison, even though he has no prior convictions.  The conviction was appealed. On January 20, 2011, the governor of New Jersey commuted his sentence to time served.  An appeal was filed in the Appellate Division of the New Jersey Superior Court.  The court on March 30, 2012, reversed the conviction on all counts except the possession of hollow point ammunition count.  It held that the moving exception applied to the gun possession count, but not to the ammunition count, and that there was a lack of proof on the large capacity magazine count.  The New Jersey Supreme Court on September 4, 2013, denied discretionary review.

Arthur Sutphen (New Jersey).  Mr. Sutphen was hospitalized for mental health reasons.  He is being divorced.  His wife got a restraining order against him.  His firearms and firearms purchaser identification card were seized.  The restraining order was later dismissed.  However, his wife testified at the hearing for return of his firearms and firearms purchaser identification card that he was suicidal and that she feared him. He submitted a letter from a doctor stating that he was not a danger to himself or others. The state had no medical or mental health expert to testify about his mental disability.   Nonetheless, his motion for return of property was denied after the hearing.  At the hearing he appeared pro se. He subsequently obtained the services of an attorney.   He  appealed to the Superior Court of New Jersey Appellate Division.  On February 6, 2012, the court reversed the decision of the trial court.  It held he appeared pro se at the hearing in the trial court and was misled into relying on the uncertified letter of his psychiatrist as it pertained to his fitness to possess firearms.  He should not have been deprived of fair notice that the state would not accept his doctor's letter as satisfying the statutory requirement.  The court sent the case back to the trial court to reopen the hearing and permit Mr. Sutphen to present evidence of his fitness to possess firearms.

Michael LaForte (New Jersey).   He is a retired police officer who sought a mental health expungement.  Following retirement, he voluntarily admitted himself for psychiatric treatment.  He was discharged after a week and received outpatient treatment.  The pleadings for expungement were accompanied by a doctor's certification attesting that Mr. LaForte has shown no difficulties in control of his behaviors and has shown good responsibilities in control of his moods, behaviors, and action.  At the hearing the psychiatrist testified that Mr. LaForte is not a threat to himself or anybody else and he saw   no impediment to his ownership of firearms.   The superior court denied relief because relief would restore his right to keep and bear arms.  Mr. LaForte appealed to the Superior Court of New Jersey Appellate Division.  On February 8, 2012, the court held that the purpose of the medical expungement statute was to return the former patient to the same position he would have been before hospitalization.  The intent of the expungement statute was to eliminate any stigmas that might attach to a person who was in a psychiatric hospital.  The trial court ignored the provisions of the statute.  The denial of expungement premised upon a possible future firearms acquisition application is erroneous.  After remand to the superior court, that court issued an order on June 8, 2012, granting the mental health expungement.

Harry Barbosa (New Jersey).  He was denied firearms purchaser identification card and a handgun purchaser's permit based on the interest of public health, safety, or welfare.  The trial court and the appellate division upheld the denials.  He sought discretionary review in the New Jersey Supreme Court.  The court denied review on September 9, 2011.

Stephen M. Siebert (New Jersey).   He was pardoned by the Governor of New Jersey for petty offenses that occurred 32 years ago.  His application to acquire a firearm under New Jersey law was denied by the police chief.  He raised the Second Amendment.  Counsel informed on August 18, 2011, that the case was successfully appealed to the Passaic County Superior Court.

Justin Blasko (New Jersey).   Counsel informed in an August 9, 2011, letter Mr. Blasko's firearms were seized pursuant to a search warrant.  The trial court refused to return them to Mr. Blasko because it would not be in the interest of public health, safety and welfare.  The firearms were in his apartment unsecured when a maintenance man entered and saw the firearms and an alligator.   The case was appealed to the Appellate Division of the New Jersey Superior Court.   June 22, 2012, the court reversed the trial courts decision.  It  held that under the U.S. Supreme Court's Heller and McDonald decisions a person has a Second Amendment right to keep firearm ready for use.  The court held that we conclude the trial judge erred as a matter of law in concluding it would violate public health, safety and welfare if Blasko possessed firearms because ... he stored his firearms in a negligent manner. In re Blasko, 2012 N.J. Super. Unpub. LEXIS 1466.  On November 14, 2012, the Superior Court issued an order that Mr. Blasko "has developed no disqualification to firearm since the matter was last heard" and ordered that his firearms purchaser identification card be returned to him or that a new one be issued  and that all property seized  be returned to him.

Tommy Fry (New Jersey).  Counsel informed in a December 19, 2011, letter that Mr. Fry is charged under New Jersey law with possessing a handgun without a permit.  He has a Florida permit to carry a pistol.  His unloaded pistol was locked inside a gun box and the gun box was locked a hard luggage compartment attached to the motorcycle.  Ammunition for the pistol was found locked separately.  Hence, he seems to be in compliance with 18 U.S. Code  926A, the federal interstate transportation of firearms safe harbor.  The court placed him for one year in pretrial intervention program.  At the end of one year charges will be dismissed.

Shawn Johnson (New Jersey).  On the night of May 10, 2011, four trespassers, one armed with a machete, entered his back yard where he was barbequing.  On seeing Mr. Johnson's rifle the trespassers ran.  Mr. Johnson possesses a New Jersey firearms purchaser identification card.  He purchased the rifle from a gun dealer in New Jersey.  The rifle was not modified in any way.  Nonetheless, he was charged with possessing an assault rifle under New Jersey law.  He was also charged with aggravated assault and possession of a firearm for an unlawful purpose.  The intruders were not charged.  The issues were self-defense and whether the rifle is within the definition of an assault rifle under New Jersey law.  Counsel informed on June 18, 2012, that all charges were dismissed and the rifle was returned to Mr. Johnson.

Daniel Picorelli (New Jersey).  Counsel informed in a January 29, 2012, letter that Mr. Picorelli has no criminal convictions or any other disqualification to possess a firearm.  In the past a former girl friend attempted to get a restraining order against him.  It was denied after a full hearing.  However, he was denied firearm purchaser identification card and handgun purchase permit based on the statutory reason for the interest of public health, safety, and welfare.  The superior court suggested he could reapply in a few years.  Interesting balancing and rational basis standards for the denial of the right to keep and bear arms are in conflict with the U.S. Supreme Court's decisions in Heller and McDonald. He will appeal.

John Vogel (New Jersey).  Counsel informed on August 26, 2011, that Mr. Vogel was charged with possessing an assault firearm and possessing a shotgun without a New Jersey firearms purchaser identification card. He was target shooting, which requires no firearms purchaser identification card, and the shotgun is not a so-called assault firearm.  Counsel informed on May 24, 2012, that the prosecutor agreed that the shotgun is not a so-called assault firearm.  However, the prosecutor still filed a charge of possessing a shotgun without a New Jersey firearms purchaser identification card.  Mr. Vogel agreed to a plea deal that would place him on noncustodial probation.  His main concern was to avoid the possibility of a mandatory prison sentence if convicted.

Paul Fredricks (New Jersey).    Counsel informed in a December 16, 2011, letter that Mr. Fredricks  receives treatment for post traumatic stress disorder from the VA.  He has a New Jersey firearm purchaser identification card.  His application for permits to purchase handguns was denied because he failed to acknowledge mental health treatment on a previous application.  The claim is that he cannot be denied his right to arms based on an application error.

Boris Bell (New Jersey).  He was subjected to the revocation of his firearm purchaser identification card and forfeiture of firearms based on the statutory ground of being in the interest of public health, safety, and welfare.  Purely political sarcasm taken out of context was the reason for this action.  The psychiatrist who examined him, and found nothing wrong with Mr. Bell, noted in his written report that "[t]hough we have freedom of speech in this county [sic] Mr. Bell is advised to avoid discussing politics with people he is unfamiliar with."    A contested hearing occurred and, fortunately, Mr. Bell prevailed.  Counsel so informed on April 11, 2012.

Neal Ercolano (New Jersey).  Counsel informed on April 11, 2012, that a restraining order against Mr. Ercolano was dissolved by the court. Nonetheless, the police chief denied his application for a firearms purchaser identification card based on an erroneous reading of the statute.  The police chief erroneously held that Mr. Ercolano would have to wait two years once the restraining order is dismissed.  An appeal was filed in the Hunterdon County Superior Court.  On December 18, 2012, the court issued an order granting Mr. Ercolano's application for a firearms purchaser identification card and for two permits to purchase a handgun.

Keith Pantaleon (New Jersey).  The police entered his apartment without a warrant and without consent on January 24, 2013.  His upstairs neighbor allegedly complained to police about the landlord providing insufficient heat.  The boiler for the building is adjacent to the kitchen area of Mr. Pantaleon's residence.  Police insisted that the landlord open Mr. Pantaleon's residence on their behalf despite the extremely late hour and lack of consent by Mr. Pantaleon.  Police then discovered firearms in his home.  Mr. Pantaleon is charged under New Jersey law with possessing a so-called assault rifle, a so-called high capacity magazine, and unlawful possession of ammunition.

Michael Myers (New Jersey).  He submitted an application for a New Jersey firearms purchaser identification card and for permit to purchase a handgun.   The statute requires a denial or approval within 30 days.  However, after 10 months no action has been taken on the applications.  A lawsuit was filed in superior court.  The state capitulated and convinced the chief of police to issue the permits.  On November 21, 2012, Mr. Myers received his permits.

Joseph Squillace (New Jersey).  In 1994 he was subject to a restraining order from his wife and mother‑in‑law resulting from divorce proceedings.   Both orders have been dismissed.  His firearms were not returned to him.  He applied for a firearms purchaser identification card.  He was denied based on domestic violence history and because his firearms were seized and not returned to him.  He has no criminal convictions.  The matter is on appeal according to counsel's letter of October 19, 2012.

Eric Lundvall (New Jersey).  Case No. 2013‑3.  He submitted an application for a New Jersey permit to purchase a handgun.   The statute requires a denial or approval within 30 days.  However, after 10 months no action has been taken on the application.  A lawsuit was filed in superior court.  The state capitulated, and on September 25, 2012, Mr. Lundvall received his permits.

Arturo Santos‑Martin (New Jersey).  He submitted an application for a New Jersey firearms purchaser identification card and for permit to purchase a handgun.  He has no criminal convictions.  However, he was denied for reasons based on Apublic health, safety and welfare.@  An appeal was filed in court according to counsel's letter of January 22, 2013.

Richard Pascal (New Jersey).  The issue is whether a New York relief from felony disability has to be honored in New Jersey.  There is a helpful case from Pennsylvania, which was provided to Mr. Pascal's lawyer.   A New York court's granting a person a certificate of relief from disability, including application for pistol permit, would be honored by a Pennsylvania court.   The court held that where the convicting jurisdiction deems the conviction no longer a conviction for purposes of firearms disability, the Pennsylvania State Police has no discretion to deem otherwise.   Consequently, the Pennsylvania State Police was ordered to amend the person's criminal history record in order to afford him relief from firearms disability. His application for a permit to purchase a pistol was denied on June 20, 2013.  An appeal has been filed in the superior court.

Richard Pantano (New Jersey).  This is a permit to carry case.  The police chief supported him.  However, he lost in the superior court and in the appellate division of the superior court.  In re Pantano, 429 N.J. Super. 478, 60 A.3d 507 (App. Div. 2013).  He is seeking review in the New Jersey Supreme Court.  The court agreed to review the case.

Zigmunt Krawczyk (New Jersey).  He submitted an application for a firearm purchaser identification card and for a handgun purchase permit.  He complied with all the requirements of state law.  He is not prohibited by state or federal law to acquire firearms.  However, the locality wanted him to fill out an additional municipal form.  He declined to do so because state law preempts the field. The trial court upheld the requirement to fill out the added municipal form.  Counsel informed in an August 5, 2013, letter that a notice of appeal was filed in the Superior Court Appellate Division.

Evan Daire (New Jersey).  He is 18 years old, a high school graduate, student pilot, and has no record of disciplinary action or misbehavior.  He submitted an application for a firearm purchaser identification card.  The investigating officer reported that he is immature.  His application was denied under New Jersey's catch all provision that the issuance would not be in the best interest of "public health, safety and welfare."  An appeal hearing occurred on September 16, 2013.  The superior court ordered that the card be issued.

Pejman Rohani (New Jersey).  He is a licensed physician and surgeon.  He submitted an application for a firearm purchaser identification card and for a handgun purchase permit.  He has two decade old criminal complaints which did not result in a conviction.  He listed them on the application.  His application was denied under New Jersey's catch all provision that the issuance would not be in the best interest of "public health, safety and welfare."  Counsel informed in an August 22, 2013, letter that an appeal will be filed in Superior Court Appellate Division.

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NEW MEXICO

Borchardt Rifle Corporation (New Mexico).   Firearm manufacturer's federal firearms license was revoked for willful record keeping violations.  The revocation was upheld by the U.S. District Court.   The court issued two opinions.  Borchardt Rifle Corp. v. Cook, 727 F.Supp.2d 1146 (D. N. Mex. 2010); Borchardt Rifle Corp. v. Cook, 2011 WL 1103854 (D. N. Mex. 2011) (motion to alter or amend judgment denied).  An appeal was taken to the U.S. Court of Appeals for the Tenth Circuit.  Appellants brief was filed on August 10, 2011, and the reply brief on December 5, 2011. On July 10, 2012, the Court of Appeals affirmed the FFL revocation.  Borchardt Rifle Corp. v. Cook, 2012 U.S. App. LEXIS 14084 (10th Cir.).  It held that willfulness can be shown by circumstantial evidence, such being given a written warning of a violation and then showing that subsequent to the warning another violation occurred.

David Modrich (New Mexico).   Counsel informed on November 26, 2012, that this case involved the claim of protection of self and property against an attacking dog.  The dog was killed.  He was charged with discharging a firearm near an inhabited building and cruelty to an animal.   On May 6, 2013, the criminal information was dismissed in the Colfax County District Court.

 

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NEW YORK

quote
Proper and effective political debate, as well as the administration of government, hinges on an informed and active citizenry. The problem is that for many people in American society, the spectrum of information available to them is quite narrow.
~ Jeremy K. Davis
Portland, Maine 3rd Place Winner, CRDF Writing Contest
quote

Hunter Sports Shooting Grounds, Inc. (New York).  This is an effort to shut down a shooting range based on a noise ordinance.  New York General Business Law article 10, section 150 creates an affirmative defense for a shooting range in a lawsuit based on noise.  Hunter Sports initiated a lawsuit in January 2007 against Brookhaven Town and County of Suffolk.  Part of the complaint against the club failed when on October 7, 2008, the Appellate Division of the New York Supreme Court held that dismissal was warranted on account of the statute of limitations.  At the trial court level, the court entered an order on February 10, 2009, that Suffolk County, as licensor of the trap and skeet range, be made defendant on any future summons for violations of the noise ordinance.  Suffolk County noise ordinance has an exemption for the range.  Town of Brookhaven's noise ordinance has no such exemption.  Counsel informed on February 28, 2012, that the range remains open.  However, Brookhaven has issued to the club citations for a noise ordinance violation.  The club will defend against any citation.  An appeal from a single noise violation was filed with the N.Y. Supreme Court Appellate Term on May 31, 2013.

Gabriel Razzano (New York).  Mr. Razzano's pistol license was taken and his rifles and shotguns were seized.  This was based on his political speech to a U.S. Congresswoman.  He has not been convicted of any criminal offense. This civil rights action was filed in U.S. District Court for the Eastern District of New York.    It involves due process and the seizure of firearms and political speech.  Counsel informed on July 15, 2008, that the deposition of the police in the pistol licensing unit took place.  That unit also took Mr. Razzano's rifles and shotguns.  There is no written policy on the seizure of rifles and shotguns.  However, there is a policy requiring the owner of the rifles and shotguns to go to court in order to obtain their return.  The police agreed that Mr. Razzano is eligible to purchase rifles and shotguns. Several defendants were dismissed by the court in a February 14, 2009, order.  However, the 14th Amendment due process claim was allowed to continue against Nassau County and Nassau County Police Department defendants.  On February 1, 2010, counsel for defendants requested a pre-motion conference in order to file a motion for summary judgment.  On March 17, 2010, the court granted Mr. Razzano permission to move for summary judgment.  He filed his motion for summary judgment on April 30, 2010.  The court granted Mr. Razzano's motion.  It found a violation of due process based on a failure to provide a post seizure hearing.  Due process of law requires Nassau County to hold a prompt post-deprivation hearing when rifles and shotguns are seized.  Placing the burden of going forward on the person whose property was taken is even more onerous, as it requires that such person give up not only time, but also money to initiate a lawsuit and retain an attorney.  The right to bear arms is enshrined in the Second Amendment, and although this right is by no means unlimited, ownership of guns by individuals legally entitled to those guns is a basic right.  A prompt due process hearing is likely to limit the unfair curtailment of this right. Razzano v. County of Nassau, 765 F.Supp.2d 176 (E.D.N.Y. 2011).

Town of East Fishkill, Dutchess County, Firearms Seizure and Return Policy (New York).    Firearms are not returned once a case is dismissed if an order of protection was involved without a return order from a judge.  The judges at the county court, local court, or justice court level refuse to intervene.  To address this problem, counsel informed in a letter of June 20, 2010, that an Article 78 proceedings will be filed in the highest level trial court, the New York Supreme Court.  On April 4, 2011, the Dutchess County Supreme Court ordered the return of the long guns to the petitioner, Robert P. Cruz.

Alan Kachalsky and Others (New York).  This is a challenge based on Second Amendment and Fourteenth Amendment grounds to the arbitrary and unconstitutional way in which a pistol carrying permit is issued in New York.  The lawsuit was filed in the United States District Court for the Southern District of New York.  The fund financially supported the preparation and filing of an amicus curiae brief by Academics for the Second Amendment.  The brief was filed on February 23, 2011.  On September 2, 2011, the court applied intermediate scrutiny, held that the core purpose of the Second Amendment is possession and carrying of arms in the home, and upheld the statute. Kachalsky v. Cacace, 817 F.Supp.2d 235 (S.D. N.Y. 2011).  The case was appealed to the U.S. Court of Appeals for the Second Circuit.   That court held in Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012), that intermediate scrutiny applies to a Second Amendment and Fourteenth Amendment challenge to New York's proper cause requirement to obtain a license to carry a pistol outside the home because the requirement is substantially related to New Yorks compelling interest in public safety and upheld the lower court.  A petition for a writ of certiorari to the U.S. Supreme Court was filed on January 8, 2013, and denied on April 15, 2013.

Angela Spinelli (New York).  She is the owner of a gun shop in New York City.  The police suspended the license of Olinville Arms because they felt security was inadequate.  They also seized all the firearms because the license was suspended.  They also suspended the gun range license.  But later reinstated because there was no security problem with the shooting range.  Almost two months later her gun dealer license was reinstated and the inventory was returned.  She filed a lawsuit.  The court held that she had a protected due process property interest in her firearms dealer's license and that her due process rights were violated because there was no post deprivation hearing or other process. Spinelli v. City of New York, 579 F.3d 160 (2d Cir. 2009).  Subsequently, there was a jury verdict in her favor.  That verdict is on appeal according to counsel's letter of February 3, 2012.

Niagara Frontier Collectors (James H. Buck & Bruce Johnston), B & C Sporting (Carl Faust & Donald Fiore), Big Al's Silver Bullet  Productions (Seth Turner) (New York).  Counsel informed in a March 12, 2012, letter that these are gun show owners‑operators who have been served overly broad discovery subpoenas in an investigation of possible unlawful sale or transfer of firearms at gun show venues.

Knife Rights, Inc., John Copeland, Pedro Perez (New York).  Counsels letter of March 13, 2012, informed that this is a challenge, on Fourteenth Amendment vagueness grounds, to New York City's enforcement of state laws that prohibit "switchblade" and "gravity" knives.  The complaint was filed in the U.S. District Court for the Southern District of New York on June 9, 2011

Derek Esperon (New York).  He had a New York City premise residence handgun license.  He wrote a letter to the New York City Police Department demanding a concealed handgun license.  The police responded by ordering him to surrender his New York City pistol license and pistol, his New York Armored Car Guard Certificate, his Florida concealed carrying license, and his Utah concealed  carrying license.  Apparently criticism is not tolerated. He obtained counsel.    Consequently, his New York Armored Car Guard Certificate, his Florida concealed carrying license, and his Utah concealed carrying license were returned to him.  Counsel informed on September 10,2012, that a psychological report was submitted, which found nothing wrong with Mr. Esperon.  The police made a final decision and revoked the license.  A lawsuit was filed in court.

Carlos R. Delgado (New York).  He applied for a premises pistol license in New York City.  The application was denied for failing to divulge that the police responded to his home for a domestic incident 6 years before the application.  He was neither  arrested nor charged 6 years ago.  Counsel informed on October 1, 2012, that an order to show cause will be filed in state court.

Alfredo Alba (New York).  His New York City pistol permit was revoked and his New York City rifle/shotgun permit was revoked.  The reason is that he has a premises pistol license  and he went to Texas without getting permission to remove the pistol out of state.   New York City mostly issues a premises pistol permit.  It is New York City's position that a person holding a premises pistol license can never transport the pistol outside the home except to and from an authorized pistol range within the confines of New York City.  He was neither arrested nor issued a summons in connection with this action.  Counsel informed on October 1, 2012, that an order to show cause will be filed in state court.

Alfred G. Osterweil (New York).  He was denied a pistol permit because a permit cannot be issued to a nonresident under current New York law.  He challenged the denial on grounds that included the right to keep and bear arms.  The court noted that although Mr. Osterweil still owns a house in New York, which he uses for vacation purposes, that house is no longer his "home" because his primary residence is no longer in New York.  The Court agreed with the state's claim that by limiting handgun licenses to those people who have the greatest contacts with New York, the law allows the government to monitor its  licensees more closely and better ensure the public safety. The court applied intermediate scrutiny as the appropriate level of scrutiny.  Under intermediate  scrutiny, the state's policy need not be perfect, only substantially related to a "significant," "substantial," or "important" governmental interest. Consequently, the Court held there is a substantial relationship between NewYork's residency requirement and the government's significant interest. The statute burdens only a narrow class of persons, i.e., otherwise qualified out‑of‑state residents who wish to obtain a license to carry a firearm in New York.  The court held that New York's residency requirement is substantially  related to serve the important governmental interests asserted. Osterweil v. Bartlett, 819 F.Supp.2d 72 (N.D.N.Y. 2011).  The case was appealed to the U.S. Court of Appeals for the Second Circuit.  Oral argument occurred on October 26, 2012.  On January 29, 2013, the court certified to the New York Court of Appeals the question whether a part-time residence of New York is eligible for a pistol license.  Oral argument before the New York Court of Appeals occurred on September 13, 2013.  On October 15, 2013, the court interpreted the statute to mean that being a part time resident of New York entitles one to apply for a New York pistol permit. Osterweil v. Bartlett, 2013 N.Y. LEXIS 2807.

Jeffrey Lichtenstein (New York).  Counsel informed on December 10, 2012, that the issue is whether the Law  Enforcement Officers Safety Act, 18 U.S. Code section 926C applies to this case. He is a retired lieutenant deputy sheriff from the Essex County, New Jersey, sheriff's office.  Essex County sheriff's office acknowledges that a deputy sheriff is a fully trained and certified law enforcement officer.  Nonetheless, New York City has charged him with criminal possession of a firearm.

New York State Rifle and Pistol Association and Others (New York).  This is a challenge to New York's recently enacted firearm and ammunition law.  A complaint was filed on March 21, 2013, in the U.S. District Court for the Western District of New York in Buffalo.  The grounds include the right to keep and bear arms and equal protection.  Plaintiffs' memorandum in support of motion for preliminary injunction was filed on April 15, 2013.

Alfredo Chapman (New York).  The issue is whether a retired police officer may be compelled to provide mental health information on his wife in order for him to obtain a pistol permit.

Valdo K. Vaher (New York).  Counsel informed in a June 13, 2013, letter that this is seizure of property case pursuant to a search warrant.  Some items were seized that were not included in the warrant.  He was not provided with due process subsequent to the seizure.  He is raising the Second Amendment and the Fourteenth Amendment.

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NORTH CAROLINA

Michael Land (North Carolina). This is a private shooting range case.  In 1991 Dr. Land purchased property in Union County.  Subsequently it was annexed by Wesley Chapel, a small township, in 1999. Seventeen years after Dr. Land established his range, Wesley Chapel's zoning administrator ordered him to halt the range's use.  The five member board of adjustment held 3 to 2 in Dr. Land's favor.  However, a super majority is needed to overrule the zoning administrator's order.    Counsel informed on December 5, 2008, that the North Carolina Sport Shooting Range Protection Act of 1997 preempts these recently enacted ordinances.   A petition  for discretionary review was filed in the Superior Court of Union County in January 2009.  Wesley Chapel agreed to stipulate to the Superior Court's granting certiorari.  The Superior Court held a hearing on the land use ordinance.  The Superior Court on July 24, 2009, reversed the board of adjustment's decision.  It held that the 1988 county ordinance that controls this case did not require the obtaining of a special use permit to establish his range.  Furthermore, the equitable doctrine of laches bars enforcement of this requirement after a 17-year delay.  After losing before the Superior Court, Wesley Chapel appealed to the North Carolina Court of Appeals.  Oral argument occurred on April 12, 2010.  The North Carolina Court of Appeals ruled on August 3, 2010, that Dr. Land's use of the property did not violate the 1988 ordinance and that he did not materially alter the shooting range under the Village's Land Use Ordinance.  The case is reported as   Land v. The Village of Wesley Chapel, 697 S.E.2d 458 (N.C. App. 2010). The village did not appeal to the North Carolina Supreme Court.  Another set of plaintiffs then filed a lawsuit claiming their constitutional rights of safety, health and welfare, and their right to the quiet enjoyment of their property are injured by Dr. Land.  The trial court dismissed their complaint.  They appealed to the North Carolina Court of Appeals.  Oral argument occurred on December 10, 2012.  The North Carolina Court of Appeals unanimously upheld the dismissal of all causes of action against Dr. Land on January 15, 2013.  Andrews v. Land, 2013 N.C. App. LEXIS 36. The North Carolina Supreme Court denied review on June 12, 2013.  Andrews v. Land, 2013 N.C. LEXIS 550.

David Timothy Faircloth (North Carolina).  Mr. Faircloth was arrested for expired license plate and for failing to inform a police officer that he was carrying a concealed firearm pursuant to a license to carry concealed.  The firearm charge was dismissed.  However, his attorney had to go to court to obtain the release of Mr. Faircloths pistol.  This conduct raises the issue of the constitutionality of a policy or practice to not release a firearm until a background check is conducted, even in the face of a court order to return the pistol. A civil rights complaint pursuant to 42 U.S. Code  1983 was filed in the Superior Court of Wake County on May 12, 2011.  On June 17, 2011, the defendant, City of Raleigh, filed a notice of removal to U.S. District Court.  The case was removed to the U.S. District Court for the Eastern District of North Carolina.  On May 1, 2012, the parties entered into a settlement agreement.  Mr. Faircloth was paid $7,500 by the City of Raleigh.  The city also agreed to have police officers instructed on the law of the legal carrying of firearms.  The parties then filed a joint stipulation of dismissal in the U.S. District Court.

 

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NORTHERN MARIANA ISLANDS CAROLINA

David Radich & Li Rong Radich (Northern Mariana Islands).The will be filed in U.S. District Court for the Northern Mariana Islands situated in Saipan. Counsel informed on December 7, 2012, that the territory has a handgun ban. The issue is whether the U. S. Supreme Court's Heller and McDonald decisions, which forbid on Second Amendment grounds handgun bans, apply to this United States territory.

 

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OHIO

William Nieman (Ohio).  This is an open carrying case that resulted in the filing of persistent disorderly conduct and obstruction of official business charges.  Trial occurred on June 8, 2012.  Near the end of the trial, the defendant was offered a plea to a minor misdemeanor with a $60 fine for  disorderly conduct.  He took the plea and the charges of persistent disorderly conduct and obstruction of official business were dismissed.

Rolland Beard (Ohio).  The issue is whether his right to keep and bear arms has been restored following a conviction for misdemeanor domestic violence.  An appeal was filed on August 25, 2013, with FBI's NICS Section.  The Court of Common Pleas for Perry County, Ohio, on October 17, 2007, restored his right to bear resulting from his June 16, 1995, conviction.

 

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OREGON

Tyler Eugene Cloud (Oregon).  This is a relief from firearm disability case based on felony theft convictions in 2005, when he was a teenager.  The Oregon statute imposes a clear and convincing standard of proof in order to prevail.  The petition for relief from prohibition against possessing a firearm was filed on May 2, 2013, in the Linn County Circuit Court.

 

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PENNSYLVANIA

Justin Dillon (Pennsylvania).  Pennsylvania has a firearm preemption statute, and Pennsylvania courts have issued favorable reported decisions in firearm preemption cases.  This case involves a challenge to an Erie firearm ordinance. A complaint for declaratory judgment and injunctive relief was filed in the Erie County Court of Common Pleas on May 30, 2013.  An emergency application for stay and request for injunction was denied by the Pennsylvania Supreme Court on July 19, 2013.  Accordingly, the case was remanded to the Commonwealth Court for a briefing schedule to be issued in relation to the underlying appeal of the denial of petitioner's request for preliminary injunction.

Joel Atkin (Pennsylvania). The issue is self-defense.  Atkin was speeding through a  neighborhood.  A man blocked Atkins car and punched him in the head.  A hospital report shows complaint of closed head injury by Atkin.  Atkin fired one shot into his attacker and the man died.  Atkin was charged with murder in the first degree.  He testified at the trial.  On January 15, 2010, a jury deliberated for about 8 hours and found him guilty of the lesser charge of third degree murder.  An appeal was filed in the Pennsylvania Superior Court, which is an intermediate court of appeals,  on June 15, 2012.

Chad D. Kirby (Pennsylvania).  He was charged in the Franklin County Court of Common Pleas with voluntary manslaughter.  An enraged neighbor came onto his property on August 13, 2009, and proceeded to damage his property by throwing things at Mr. Kirby's home, car, and children.  Mr. Kirby retreated into his home.  When it became quiet, Mr. Kirby exited his home.  However, the enraged neighbor came back onto Mr. Kirby's property armed with a baseball bat and ran at Mr. Kirby.  Mr. Kirby again retreated into his home.  When the neighbor proceeded to smash the front picture window with the baseball bat, Mr. Kirby feared for his life and the life of his children.  He fired a single shot from a 12 gauge shotgun through broken window fatally wounding the attacker.  The issue was defense of self, family, and home.  He was found guilty of manslaughter on October 8, 2010.  The conviction was appealed.  On June 1, 2011, the trial court granted a new trial.  The prosecution appealed the ruling to the Pennsylvania Superior Court.  On June 5, 2013, the Superior Court upheld his conviction in an unpublished opinion.  It held that his counsel met the minimum requirements for competency.  The Pennsylvania Supreme Court denied his petition for allowance of appeal.

 

James Cialella (Pennsylvania).  There was a verbal dispute.  It escalated when Mr. Cialella was knocked down, punched, choked, and kicked by multiple assailants.  His injuries included a fractured nasal bone.  He fired one shot in self-defense.    He is charged with aggravated assault for wounding one of his attackers in the arm.  The witnesses against Mr. Cialella are related to the wounded man. One of the witnesses is awaiting trial for aggravated assault and another served a sentence for narcotics distribution.  A trial date was tentatively scheduled for October 18, 2010.  However, on November 23, 2010, he entered into a plea agreement.  On March 2, 2011, he was sentenced to house arrest and probation.

Jerry C. Benard (Pennsylvania).  He attempted to get his right to possess a firearm restored.  He was sent to a hospital for involuntary observation on April 26, 2007.  On April 29, 2007, he was released.  No hearing took place because no application for a formal commitment was filed prior to the expiration of 120 hours.  The issue was whether the mental health involuntary commitment firearm disability applied to his case.  An appeal was taken to the Washington County Court of Common Pleas.  The court denied relief.  An appeal was then taken to the Superior Court of Pennsylvania.  Appellants brief was filed on May 27, 2011.  On January 12, 2012, the Pennsylvania Superior Court upheld the decision of the trial court.  It held there was sufficient evidence to support the decision of the trial court and the statute applied to his situation. J.C.B. v. Penn. State Police, 35 A.3d 792 (Pa. Super. 2012).

David Ross (Pennsylvania).  This case involves forfeiture of a firearm after a finding of not guilty.  Mr. Ross is a resident of Homer, Alaska,  and was traveling in Pennsylvania.  He was at the airport in Pittsburgh when he was arrested and charged with possessing a firearm on airport property in violation of a local ordinance.  He was found not guilty on November 11, 2009. However, his firearm was not returned.  Consequently, a petition for return of property was filed.  It was denied on November 17, 2010.  Counsel informed on March 9, 2011, that the case was being appealed.  The parties finally reached a settlement.  On April 4, 2012, the court issued an order for the return of the firearm.   Counsel informed on July 18, 2012, that Mr. Ross now has actual possession of his firearm.

Robert O'Ferrall (Pennsylvania).  He is an armored car employee covered by 18 U.S. Code section 5902.  However, he was charged under New Jersey law with carrying a pistol without a permit.  His Pennsylvania permit to carry a firearm is now subject to revocation.  He is defending the criminal case in New Jersey and the permit matter in Pennsylvania.  Counsel informed on November 8, 2011, that the criminal charge in New Jersey was dismissed and that the process has been started to expunge the arrest.  Pennsylvania, in turn, agreed to dismiss the proceedings involving the revocation of his permit to carry a firearm.

Mark A. Fiorino (Pennsylvania). This is an open carrying case.  He lawfully carries his pistol openly.  He has had several encounters with police, including Philadelphia police.  As result of the most recent encounter, on February 13, 2011, Philadelphia police charged him with reckless endangerment and disorderly conduct.  He pled not guilty to the criminal charges. He was acquitted on October 27, 2011.  A civil rights lawsuit under 42 U.S. Code § 1983 was filed in U.S. District Court for the Eastern District of Pennsylvania on February 14, 2012.  The defendants submitted a Rule 68 offer of judgment of $25,000 to settle all claims for damages, cost, attorneys' fees, and interest accrued.  Mr. Fiorino accepted the offer on March 2, 2012.

Brandon Thomas (Pennsylvania).  The issue is self-defense.  The deceased used his vehicle to strike Mr. Thomas's vehicle, boxed in Mr. Thomas's vehicle, and proceeded to punch Mr. Thomas several times while Mr. Thomas was still in his vehicle.  Trial is set for September 9, 2013.

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TENNESSEE

J.C. Greene (Tennessee).  This case involves an effort by Hamblen County to shut down a private shooting range.  His property is zoned agricultural/forestry.  He has lived on or adjacent to this property nearly all his life.  A December 29, 2008, letter from the Hamblen County Planning Commission issued a cease and desist order prohibiting Mr. Green from operating a shooting range on his property.  Subsequently he received no relief from the county zoning authorities.  Therefore, Mr. Greene filed an application for injunctive and declaratory relief in the Chancery Court for Hamblen County on April 3, 2009.  The defendant removed the case to federal court, but the federal court sent it back to state court.  Counsel for Mr. Greene informed on February 1, 2011, that competing motions for summary judgment were filed by the parties in Chancery Court.  The court denied relief on March 3, 2011.  However, the order was ambiguous. Therefore, on April 18, 2011, the parties filed an agreed judgment order.  The agreed order stated:   "To clarify and supplement the Memorandum Opinion, the Court does not find or declare that the Plaintiff is prohibited from using his property for any firearm shooting in compliance with all local, state and federal laws, i.e. hunting or target shooting as ordinarily associated with rural residential, agricultural and forest land uses."  This resulted in a partial victory.

Craig Sheaffer and Montlake Classic Clays (Tennessee).  Counsel informed on June 11, 2012, that this was an effort to shut down a long existing outdoor shooting range, notwithstanding the adoption of the Tennessee range protection act.  Initially the trial court denied relief.  However, the Tennessee Court of Appeals relinquished jurisdiction of the case for the trial court to consider the impact on its judgment of the range protection act.  The trial court vacated its earlier judgment denying relief to the shooting range in view of the legislation.

Chase Jones (Tennessee).   He rescued a woman from a knife wielding attacker.   The attacker was charged with attempted murder.  Mr. Jones, the rescuer, was charged with reckless endangerment because he fired a shotgun into the locked door  in order to open it and rescue the victim. Defense counsel informed on January 7, 2013, that upon further review, the prosecuting attorney decided to dismiss the charges.

 

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TEXAS

John Thomas Shipley (Texas).  This is a BATF case.  Mr. Shipley, an FBI agent, is a gun collector.  He was charged with engaging in business without an FFL, causing an FFL to maintain false records,  and making false statements.  He was fired from the FBI.  He was tried by a jury.  He was convicted on April 14, 2010, and sentenced to 24 months incarceration.  An appeal is planned. Counsel informed on July 29, 2011, that Mr. Shipley started his jail sentence, even though one of the trial transcripts  was determined to have been permanently lost  (the disk on which it was saved by the court reporter was irreparably damaged).  Mr. Shipley has an attorney in Texas who is trying to get the U.S. Court of Appeals for the Fifth Circuit to order him released and to order a new trial because of the loss of the transcript.  Oral argument occurred on July 9, 2013.

Donald Layton, Judy Layton, Karl Artmire, Misty Artmire, Pamela Layne d/b/a/ High Noon Gun Range and High Noon Gun Club (Texas).  This is an effort to shut down a shooting range. Plaintiffs are various home owners who claim the shooting range is a nuisance because of noise and the shooting that takes place on the range.  They filed a lawsuit on August 26, 2011.  The range does not operate within a municipality.  No county ordinance, order, or rule regulating noise exists that would apply to the shooting range.  The range existed long before the plaintiffs built their homes.  Texas has a range protection statute.  After a hearing, the trial court on June 15, 2012, signed a temporary injunction against High Noon. An accelerated appeal has been filed to the Texas Court of Appeals.  Counsel for the club informed in an October 30, 2012, letter that the parties are waiting for the court to set a date for oral argument.

Edward Chiarini (Texas).  Counsel informed on March 26, 2013, that Mr. Chiarini was convicted of unlawfully carrying a pistol in the common areas of a condominium complex.  He owns a unit in the complex.  Texas law holds owners of units are also owners of the common areas of the condominium complex jointly with other unit owners.  The issue is whether this property law will apply to the Texas Penal Code holding that a person is not guilty of unlawfully carrying a pistol if he is on his own premises or premises under his control.  The case was appealed to the Texas Court of Appeals.  On August 12, 2013, the court reversed the conviction.  The court held that a pistol may be carried on one's property even when owned jointly with others.  The court also held that the state was required to prove Mr. Chiarini was not on his own premises or premises under his control.  The conviction was reversed and judgment of acquittal was rendered. Chiarini v. State, 2013 Tex. App. LEXIS 10062.

Morgan Security Consulting (Texas).  This is a sport shooting range.  It is protected by Texas= range protection law.  The district court enjoined the range from operating as a sport shooting range and/or the discharge of firearms.  Counsel informed on September 12, 2013, that a jury trial occurred.  The jury ruled in favor of the range.  It found that the range operated before September 1, 2011, meaning that the standards it meets are lawful.

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UTAH

Rocky Mountain Enterprises (Utah).    This gun shop sold a shotgun with a pistol grip to an 18-year old alien.  The purchaser misused the shotgun in a violent crime.  The victims and survivors filed in the District Court of Salt Lake County on February 14, 2008, a lawsuit against the gun shop claiming negligence based on a violation of law  in selling a handgun (the shotgun) to a person under 21 and failing to obtain a second set of identification from a non-citizen.  The lawsuit claims that it was foreseeable that the shotgun would be used in a violent crime.  A claim is also made that the sale of the shotgun is a public nuisance.  There is evidence that the shotgun, even with a pistol grip, is considered a shotgun under applicable law and not a handgun.  A motion to dismiss was denied on March 4, 2009.  A February 17, 2010, communication from counsel indicated that pretrial discovery was taking place and soon would be completed. Motions for summary judgment were then filed and are awaiting a ruling from the court.  On February 14, 2011, the court heard arguments on the motions.  On February 28, 2011, the court ruled that the case may proceed to trial.  The Utah Supreme Court declined to reverse that decision on June 18, 2011.  The parties reached a confidential settlement on April 11, 2013.

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VERMONT

Hale Mountain Fish and Game Club, Inc. (Vermont).  This is a protracted effort to shut down or impede  a shooting range by attacking it with five lawsuits in state and federal court.  The claims include nuisance and environmental law.  Some claims are facially nonsensical.  The lawsuit also claims that the Vermont shooting range protection law is unconstitutional.  The Act 250 matter, which is the Vermont land use statute,  was heard before the environmental board.  The board held that the clubs shooting activities did not violate the environmental statute.  The clubs neighbors appealed to the Vermont Supreme Court from the favorable Act 250 finding.  The court on September 13, 2007, reversed and remanded.  The court required the Environmental Board to make findings on whether the various improvements and changes at the club since the 1970 enactment of the land use statute had resulted in an increased intensity of use and increased noise levels.  A separate nuisance case that attacks the constitutionality of the range protection law is pending. A claim that the club is in violation of zoning law is scheduled to be tried during the week of April 7, 2008, before the Vermont Environmental Court.  Counsel informed on June 10, 2008, that the court ruled in the clubs favor.  The neighbors appealed to the Vermont Supreme Court again.  The appeal was not successful.  On February 2, 2009, the Vermont Supreme Court noted that the "[n]eighbors of the Hale Mountain Fish & Game Club appeal the Environmental Boards decision that the Club need only apply for a limited Act 250 permit for discrete changes made to its property. This is the second time that we have considered neighbors' appeal of the Boards decision. In neighbors' first appeal, we held that the Board's initial decision regarding whether the Club need apply for an Act 250 permit insufficiently addressed whether, since 1970 when Act 250 became law, changes made to the Club increased the intensity of use of the Club and resulted in greater noise emanating from the Club's property. In re Hale Mountain Fish and Game Club, Inc., 2007 VT 102, §§ 9-11, 182 Vt. 606, 939 A.2d 498. We also held that the Board needed to address, in greater detail, the impact of the Club's improvements on nearby streams and wetlands. Id. 11. Therefore, we issued a remand order that required the Board to make additional findings and conclusions on these critical issues. Id. 12. Although it took no new evidence, the Board reviewed prior witness testimony with these issues in mind and filed supplemental findings supporting its original conclusion that a general Act 250 permit was unnecessary.  We affirm."  In re Hale Mountain Fish and Game Club, 2009 WL 385546 (Vermont Supreme Court Feb. 2, 2009).  On April 10, 2010, the club obtained a permit required by the Vermont Environmental Board, which permit was unappealed and final.  On July 10, 2010, the club filed a zoning application to make improvements, which was granted.  However, the development review board on October 20, 2010, issued a decision denying the zoning permit.  The club appealed to the superior court.  The club's motion for summary judgment was filed on February 24, 2011.  On October 20, 2011, the club filed its motion that zoning permit issued for the improvements should stand as final.  On April 19, 2012, the court held that the neighbors made out enough of a standing case to appeal the permit which is at issue here.  However, the court severely circumscribed the evidence they can present at trial.  The parties will need to go through the exercise of a trial.

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VIRGINIA

Kristopher J. Gasior (Virginia).  The government seized a rare Polish military semiautomatic rifle manufactured before WWII.  It was a legitimate war trophy brought to United States after WWII.  The government claims the rifle is the property of Poland.  This is a flawed theory.  War trophies bestow legitimate title to property under United States law.  If the government's position prevails numerous collector firearms, including those in museums, may be subject to seizure and return to the nation where they were manufactured or used by its military.  The case was profiled in a June 30, 2013, article in Washington Post.  The federal government filed an interpleader and relinquished all rights to the rifle.  Therefore, only Poland has an interest.  Mr. Gasior's attorney filed on September 16, 2013, a response to Poland's pleadings and filed a motion for judgment on the pleadings against the Republic of Poland.

 

Range 82, LLC (Virginia).  This is an operating sport shooting range that was defending against efforts by Fauquier County to shut it down.  A special permit for the operation of the shooting range was issued in July 2005, subject to 26 conditions.  One of the conditions provides for administrative renewal by zoning administrator after five years.  Range 82 invested $1.1 Million in site planning, preparation, and the construction of a "no blue sky" shooting facility containing shooting positions at 25, 75,100, and 200 yards.  A county supervisor requested that the range submit an application for a special exception to become an outdoor technical school in order to allow the Sheriff's Department and other law enforcement agencies to train there.  A neighbor filed a complaint.  The notice of violation claimed the range is already a technical school because it teaches shooting.  A zoning administrator issued a notice of zoning violation based on lack of special exception.  The range permit will not be renewed if there is an outstanding zoning violation.  Thus, having the zoning violation overturned was critical to the survival of the range.  The range appealed to the Circuit Court.  A separate declaratory judgment motion was filed, claiming certain conditions imposed on the range violate Virginias range protection statute.  On December 9, 2011, a joint motion to dismiss was filed in the Circuit Court of Fauquier County because on November 10, 2011, the Fauquier County Board of Supervisors granted a special exception that resolved all matters pertaining to the case.  Counsel for the range informed on August 28, 2012, that the litigation has been successfully concluded.

Leon Spears (Virginia).  Counsel informed in a February 28, 2012, letter that Mr. Spears was carrying an unconcealed firearm, which is lawful under Virginia law.  Nonetheless, he was subjected to a detention of 40 minutes by Alexandria police.  The issue is whether the 4th Amendment was violated.  A jury trial has been set for January 5 and 6, 2014.

Bruce James Abramski, Jr. (Virginia).  Mr. Abramski is a former police officer.  He is not prohibited from possessing a firearm.  He transferred the firearm he purchased to another person who is also not prohibited from possessing a firearm.  The issues are whether the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its statutory authority by criminalizing otherwise perfectly lawful conduct by simply amending a form - without notice and rulemaking - that firearms purchasers fill out when purchasing a firearm; and whether the Bureau of Alcohol, Tobacco, Firearms and Explosives improperly adopted legislative rules redefining straw-purchases, federal firearm licensees transferring firearms to persons who are not "actual purchasers," and requiring transferees to certify that they are in fact actually buyers, all without notice and comment.  The NRA Office of General Counsel prepared and filed on July 25, 2013, a brief of amicus curiae NRA Civil Rights Defense Fund in support of Mr. Abramski's petition for a writ of certiorari in the U.S. Supreme Court.  His petition for a writ of certiorari was granted on October 15, 2013.

 

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WISCONSIN

Krysta Sutterfield (Wisconsin).  She was charged with carrying a concealed pistol.  The issue was whether a pistol in a holster on the hip, with the jacket tucked behind the holster, constitutes concealment. She was seated in her car at the time of the arrest.  A letter brief on jury instructions was filed on February 16, 2012.  The case was tried by a jury.  The jury believed her claim that the pistol was not concealed and returned a verdict of not guilty on  July 24, 2012.

Hunter's Point Hunt Club (Wisconsin).   The Town of Byron denied the club's special use permit request to build a trap, skeet, and sporting clay range.  The hunt clubs position is that its previous use brought it under the umbrella of Wisconsins  range protection law.  The game farm is a sport shooting range.  Therefore, the hunt club had the right to expand, enhance, or improve the property.  The circuit court denied relief.  An appeal was taken to the  Wisconsin Court of Appeals.  The court summarily affirmed in an unpublished opinion.  The hunt club on July 20, 2012, filed a  petition for discretionary review in the Wisconsin Supreme Court.  Counsel informed on December 4, 2012, that review was denied.

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WYOMING

Gabriel R. Drennen (Wyoming).  He was convicted of murder and of aggravated assault and battery. On October 1, 2013, the Wyoming Supreme Court reversed his convictions. The court held "[t]he prosecutors' assertions that Wyoming law prohibits shooting an unarmed man were inaccurate, and the record leaves no doubt that the prosecutors misinformed the jury in that regard." The court also held that the instruction on self-defense was erroneous. "In cases where the evidence establishes, as a matter of law, the defendant was not the aggressor, the jury should not be charged that he had an absolute duty to retreat. In all cases, the jury should be instructed that the defendant was justified in using deadly force only if necessary; consequently, he must consider reasonable alternatives, which may include retreat, before using deadly force." Lastly, the court agreed the jury instructions on murder and voluntary manslaughter were erroneous, as well as the instruction on aggravated assault and battery. Drennen v. State, 2013 Wyo. LEXIS 123 (Oct. 1, 2013).

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