A RightHaven LLC Round-up

EFF

The biggest news is that the EFF – the Electronic Frontier Foundation – is stepping up and helping bloggers who have been sued by RightHaven LLC. In an announcement posted yesterday by Eva Galperin, they encourage those who have been a target of RightHaven’s lawsuits to contact them. They say they can help a small number of bloggers by providing legal counsel. The EFF notes it has limited resources with which to provide direct legal counsel but is committed to providing referrals to those that they can’t represent directly.

To contact the EFF for help, send an email to eva@eff.org.

Planted Stories?

Under the heading of what seems to be a planted story by the good folks at Stephens Media LLC, we have a story in NWAOnline – the NWA stands for Northwest Arkansas – that is is entitled “Firm holds websites to the law.” What I see of the story reads like a press release from RightHaven.

Back in “Uncle Joe” Stalin’s day, the Soviets referred to those in the Western press who believed their lies and would pass them on as “truth” to their readers as useful idiots. Seems appropriate here as well.

Google Cache

Techdirt has an interesting article on the legal theories used by defense lawyers in the RightHaven suits. One theory that is being tried out focuses on an earlier ruling which found Google cache legal. Here is how the theory goes:

So, with Righthaven, these lawyers are claiming the same basic thing. They’re saying that the LVRJ gave an implicit license for a similar cache-with-link by putting the content up for free and by failing to limit the ability to copy & paste the text via technical means. On top of that, they point out that the LVRJ explicitly encourages people to “share” the articles on its site (something the LVRJ still does — including quick links to share it with 19 different services).

While certainly not the same as the Google case, it will be interesting to see where this argument for fair use goes.

Entrapment

In another Techdirt story on the defenses being used against RightHaven, the lawyers for Ryan Burrage of Louisiana accuse the Las Vegas Review-Journal of entrapment. This argument contends by providing “email this” and RSS links constantly throughout articles as well as encouraging people to “share and save” up to 23 times per article , the LVRJ is encouraging the behavior for which they then turn around and have RightHaven sue.

Steve Green of the Las Vegas Sun

Reporter Steve Green of the Las Vegas Sun has been doing yeoman work following the RightHaven story. Much of what we know about the lawsuits has come from his stories. Indeed, the Techdirt stories above are from stories of his in the Las Vegas Sun.

His recent articles include:

R-J accused of entrapment over copyright enforcement

Blogger asks to pay $200 to close R-J copyright suit

Website operators use new defenses to fight R-J copyright suits

 

 

Kachalsky et al v. Cacace et al – Updates

In the Westchester County, NY pistol permit case, Kachalsky et al v. Cacace et al, pre-motion conference letters have been received from both the plaintiffs and defendants. Judge Cathy Seibel maintains a set of Individual Practices governing cases in her court. With regard to civil cases, she requires an informal pre-motion conference before a party is allowed to submit a formal motion. Letters requesting a conference must be sent to the Court and to all the other parties. (Seibel, Individual Practices 1(A) (C) and 2(A)). The pre-motion conference is set for September 7th.

Letter for State Defendants Cacace and Cohen

The letter from New York Attorney General’s office which is representing Susan Cacace and Jeffrey Cohen, as might be expected, indicate that they will be seeking a dismissal of the case. They are also challenging the presence of the Second Amendment Foundation as a plaintiff. Anthony J. Tomari, Assistant AG for the State of NY, argues that SAF “alleges no facts specific to itself, but rather appears to rely upon those factual allegations pertaining to the individual named plaintiffs.”

In seeking to have the case dismissed, Tomari lists a range of reasons including that Heller did not preclude a prohibition on carry, that the case isn’t “ripe” because Kachalsky and Nikolov had their permits denied before the McDonald ruling, that this is something better left for state courts, that the plaintiff’s claims are barred because they lost in state court (Rooker-Feldman doctrine), that state judges can’t be sued under Sec. 1983, and finally, that the Equal Protection claim “is not factually developed.” In essence, he did a data dump and listed every conceivable reason that he could come up with to have this case dismissed.

Of the reasons listed, the most important for this case are probably the ripeness challenge, the fact that Cacace and Cohen are NY state judges, and the argument about Heller not precluding a prohibition on carry. The doctrine of ripeness asserts that a case must have matured into a controvery sufficient enough to warrant adjudication.Both Kachalsky and Nikolov had their permits denied before the McDonald case was settled. Under the ripeness doctrine, there may not be a controversy that needs to be settled as it was legal when they received the denial as the Second Amendment hadn’t been incorporated yet. With regard to Heller, New York is arguing that Heller and McDonald do not invalidate the state’s “full carry” licensing provisions as the decisions only preclude a prohibition on handguns in the home.

Letter for Kachalsky and Nikolov

In his letter to Judge Seibel, Alan Gura indicates that he will be seeking a motion to add additional plaintiff(s) and that he intends to file a cross-motion for a summary judgment. He notes the plaintiffs will respond separately to the letters from New York and Westchester County seeking a motion to dismiss.

Gura makes the point that the plaintiffs are not seeking to invalidate New Yorks “full carry” licensing provision as alleged by the attorney for Cacace and Cohen. The only regulations at issue is the “constitutionality of New York’s requirement that individuals demonstrate “proper cause” to obtain a permit to carry a handgun.” He contends that individuals may not be required to demonstrate “proper cause” in order to exercise a fundamental right.

He contests the notion that Cacace and Cohen cannot be sued because they are New York State judges. While they may usually acts as judges, when they denied Alan Kachalsky and Christina Nikolov their permits they were acting as administrative licensing officers. Gura notes that “no judicial function is questioned in this lawsuit.”

In his motion to add parties, he makes note of the State’s contention that the denial of the permits was legal when it was done (pre-McDonald).

The unavoidable suggestion is that Defendants might reach a different conclusion with respect to the permit applications today. However, Cacace and Cohen have not sought to moot this litigation by issuing Kachalsky and Nikolov their requested permits.

He says that he has an additional plaintiff whose permit was denied after June 28th (date of McDonald decision) and he is moving to add them to the case. While this person could file a separate lawsuit, it would be more efficient to just add them to the existing case.

Gura is also seeking a cross-motion for summary judgment. This is standard practice under the Federal Rules for Civil Procedure and that was what was done in the Heller case. He argues that in Heller, the Court found that “to bear” meant “to carry”. While the right isn’t unlimited, the Court “confirmed that there is a right to carry at least some weapons, in some manner, for some purpose.”

Letter for Westchester County

Westchester County is seeking a Fed. Rules of Civil Procedure 12(B)6 motion to dismiss the case. Under this rule, if there is a failure to present sufficient facts, when taken as true, would indicate that any violation of law occurred or that the plainitffs are entitled to a legal remedy, then it is grounds for dismissal. In other words, do the facts indicate that the defendant did anything that violated the law? Moreover, have they done anything for which the plaintiffs can ask the court to force the defendants to do?

Westchester argues in their pre-motion letter that there really is no claim made against the county but rather against NY State Penal Law Sec. 400. They go on to argue that Westchester County did not deny the permits but merely did the required background investigation and made recommendations to the licensing officers. They argue that the decisions were made by Cacace and Cohen who are not Westchester County employees and are paid by the State of New York.

Comparison of Effectiveness of Flash Hiders for the AR-15

The Vuurwapen Blog did a comparison of a number of flash hiders and muzzle breaks to see how they really did in the dark. They compared the Primary Weapon Systems TTO, the AAC Blackout 18T, the Smith Vortex, the Battle Comp 1.0, and your basic A2 bird cage flash hider. They filmed the AR-15 from three different perspectives: the shooter’s perspective, 25 yards downrange, and at right angles to the muzzle from three feet. After watching the video, all I can say is that money doesn’t buy you flash suppression.

Here are the flash hiders and muzzle breaks tested along with their retail price:

A2 Flash Hider – $6 from Del-Ton
Smith Vortex – $51 from Smith Enterprises

AAC Blackout 18T Flash Hider – $99 from Advanced Armament

Primary Weapon Systems TTO – $99.95 from PWS
Battle Comp 1.0 – $149 from Battle Comp

UPDATE: Corrected picture for AAC Blackout 18T Flash Hider. Thanks to Gun Monkey for catching that.

SAF: Daley, council’s childish arrogance at root of follow-up lawsuits

From Alan Gottlieb and the Second Amendment Foundation:

Whatever spin Chicago Mayor Richard Daley and the city council wish to offer, it is their stubborn arrogance that has resulted in more gun rights lawsuits filed against the city following the Supreme Court’s June 28 ruling in McDonald v. City of Chicago that essentially nullified the city’s 28-year handgun ban.

The McDonald case – brought by the Second Amendment Foundation and Illinois State Rifle Association with four Chicago residents – resulted in a landmark ruling that incorporated the Second Amendment right to keep and bear arms to the states via the 14th Amendment. SAF and ISRA have now been joined by Action Target, Inc., and two local residents, Rhonda Ezell and Joseph I. Brown to challenge the city’s new gun ordinance, which appears to have been written to purposely provoke more lawsuits.

The city’s childish stubbornness is going to cost taxpayers a small fortune. Mayor Daley and his anti-gun city council adopted what amounts to a “tantrum ordinance” that essentially spits in the high court’s face. Sure, the city adopted an ordinance that – at least on paper – allows Chicago residents to own a handgun, but in reality, it is one huge “Catch 22” that was deliberately crafted to discourage residents from exercising their Second Amendment rights.

The city’s handgun law requires prospective gun owners to undergo training, including at least one hour of actual time on a gun range. However, the ordinance prohibits the operation of gun stores and ranges inside city limits. Additionally, the city requires would-be Chicago gun owners to first obtain a Chicago Firearms Permit (CFP), and an application for that document requires an affidavit signed by a firearm instructor certified by the State of Illinois.

Instructors cannot teach those courses anywhere inside the city because there is no place to conduct that training.

Earlier, the Illinois Association of Firearms retailers and a north suburban gun shop operator sued the city over this ordinance. Now, SAF, ISRA and ATI have brought legal action. Action Target is a Delaware-based company that designs and builds gun ranges, including one in Chicago, in the Federal Reserve Bank building, for use by law enforcement. The company wants to build a gun range in the city for private citizens, but the city’s ordinance makes that impossible.

This sort of thing may be “politics as usual” in the Windy City, but it does not pass the smell test anywhere else. It sends a signal that Chicago authorities believe they are above the Constitution and the rule of law as defined by the Supreme Court. It’s the kind of attitude one sees in a schoolyard bully, suggesting that Mayor Daley and his council cronies are in desperate need of adult supervision.

Perhaps when Mayor Daley was a child, he became accustomed to taking his ball and going home when things did not go his way on the playfield. Since he evidently has never grown up, he believes this conduct is still acceptable in an adult world. The citizens of Chicago have tolerated his juvenile delinquency but that doesn’t mean the rest of the country needs to.

Chicago’s ridiculous gun law is proof positive that the city administration does not take the Supreme Court ruling seriously. The time has come to change that, and that will require the federal courts to spank the city again, since nothing else seems to get the city’s attention.

You do wonder if Hizzonor dah Mayor will deign to issue a response. There is certainly a stimulus plan in effect in Chicago – for lawyers.

A Big Thank You!

Sometime this afternoon, No Lawyers – Only Guns and Money passed over 30,000 visitors since its inception on May 19th of this year. I will be honest – I never expected the blog to grow so quickly!

First, to the readers, thank you. I hope I have provided good information whether it dealt with firearms, blogs, firearm litigation, “stuff”, or even money. While I write the blog somewhat to entertain myself, the teacher in me wants to get information out to educate and enlighten. Without you, there would be no blog.

Second, to the other bloggers who have provided links to my posts and to the blog itself, thank you for taking a chance on a newbie blogger. When I was only a blog reader, I didn’t realize the time and effort that good bloggers put into their craft. I do now!

Finally, to the Complementary Spouse who has at times felt like a “blog widow”, mere thanks is inadequate to repay the love and patience you’ve shown as I’ve started blogging. You are the love of my life and I hope you know it. I promise light blogging when we are touring California after the Gun Rights Policy Conference!

First There Were the Birthers…

Now there are the Existers. According to the Borowitz Report, one in five Americans does not believe Barack Obama exists.

“The Birthers say that Obama’s lack of a birth certificate means he was born in Kenya,” says Jerrilene Rance, a leading Exister. “We believe it’s proof that he was never born.”

Ms. Rance says that while President George W. Bush was criticized for disappearing every August, “Obama is never there to begin with.”

 I can’t speak to the legitimacy of their claims but I do know that a bunch of angry fishermen plan a protest in Vineyard Haven to coincide with the Obama family vacation.

Gun Owners Against Illegal Mayors

First there was Michael Bloomberg’s group Mayors Against Illegal Guns. And, given the legal problems of many of the mayors in that group, we have Gun Owners Against Illegal Mayors. If you would like to read the rap sheets of some of these gun control advocates, go here.

While they may be against guns, some of them appear to be pro-embezzlement, pro-bribery, pro-perjury, pro-extortion, and, incredible as it may seem, pro-child porn.

Ft. Hood Report Implementation Bears Watching

Thanks to CalGunLaws.com, we have the letter from Secretary of Defense Robert Gates along with the DoD Implementation of Recommendations for the Independent Review related to Ft. Hood that was sent to the upper echelon of the Department of Defense.

In the wake of the Ft. Hood shootings by Major Nidal Hasan, a blue ribbon panel was assembled to study the shootings and ways to prevent them in the future. They came back with a report entitled Protecting the Force: Lessons from Fort Hood. It examined everything from emergency response to mental health issues.

One of the recommendations had to do with private firearms owned by servicemen and women. It found that the Department of Defense did not have a policy governing privately owned weapons and recommended that the Department study the need for one. This was Recommendation 3.8.

The implementation document states with regard to Recommendation 3.8:

The Independent Review found that the Department does not have a policy governing Privately Owned Weapons. In the absence of such policy, the individual Services have established Privately Owned Weapons policies, which set minimum standards and task installation commanders to establish installation-specific requirements. These policies do not apply to personnel who live off installation.

  • TheUnder Secretary of Defense for Intelligence put into formal coordination a Secretary-issued Department-wide Interim Guidance Message. By early 2011, the interim guidance will be incorporated into a revision of DoD 5200.08-R (Physical Security Program).

In his transmittal letter, Secretary Gates said:

As the Department takes steps to strengthen its approach to force protection, I ask leaders and commanders across the force to remain mindful of the unique requirements of the profession of arms – that military service is grounded in an oath to support and protect our Constitution, but also may necessitate the sacrifice of some of the very rights we defend.

The two combined together leads me to ask which rights Secretary Gates thinks may be need to be sacrificed. Does he mean a right to privacy concerning medical and mental health records or does he mean the Second Amendment rights of those who serve our nation in its armed services? Whatever the case, it bears watching.

Appleseed Project on Fox

The Appleseed Project made FoxNews on Wednesday. The interview with Jack Dailey aka Fred from Shotgun News was pretty decent. However, as it always seems, they have to interview someone who suspects them of being covert militia recruiters.

The segment is called Teaching History with a Twist.

Watch the latest video at <a href=”http://video.foxnews.com”>video.foxnews.com</a>