Appeal Filed in Ezell Case

Alan Gura and David Sigale have filed an appeal on Friday to the Seventh Circuit Court of Appeals of Judge Virginia Kendall’s denial of a preliminary injunction in Ezell et al v. Chicago et al. This is the case brought against the City of Chicago’s ban on gun ranges within the city limits. The notice of appeal does not give the grounds but merely informs the District Court and the defendant’s attorneys that an appeal has been filed.

According to a notice issued by the Clerk of Court for the District Court, the entire record of the case must be furnished to the Circuit Court by November 18th and the parties have until November 11th to notify the Clerk of any missing items from the online record which needs to be sent.

The notice of appeal as filed with the Seventh Circuit is below:

Ezell et al v. Chicago – Appeal Filed With 7th Circuit

I Thought They Changed Their Name in 2001

According to the official history of the Brady Campaign, they changed their official name from Handgun Control, Inc. to the Brady Campaign to Prevent Gun Violence (sic). From their official history:

In 2001, HCI was renamed the Brady Campaign to Prevent Gun Violence and CPHV was renamed Brady Center to Prevent Gun VIolence in honor of Jim and Sarah Brady for their commitment and courage to make America safer.

However, when I was checking the recent visitors to this blog, I found the following and made a screen capture of it.

It is like the words out of the mouths of children. It is sometimes embarrassing, it is sometimes awkward, and it almost always is true.

NRA Amends Complaints in Texas Cases Challenging Higher Age for Purchase and CCW

The NRA has amended the complaints in their cases in US District Court for the Northern District of Texas challenging laws that impact 18 to 20 year olds who wish to purchase a handgun or carry a handgun concealed. Links to and description of the original D’Cruz case can be found here.

The changes in the suits include adding additional plaintiffs, additional information on James D’Cruz’s marksmanship qualifications, some wording changes, and a bit more emphasis on the Second Amendment. Since there are two suits, I will detail the changes case by case.

D’Cruz et al v. BATFE et al

The first change is that an additional individual plaintiff has been added as well as the NRA itself as an organizational plaintiff. The new individual plaintiff is Andrew Payne, an 18 year old resident of Lubbock, Texas. Mr. Payne is the owner of several long guns but would like to be able to purchase a handgun and handgun ammunition from a federally-licensed dealer.

The NRA itself has become an organizational plaintiff in the case representing members residing in Lubbock and other areas of west Texas. It is also representing federally-licensed dealers (FFL’s) who are members of the NRA who wish to be able to sell firearms to 18-20 year old adults.

I think – and this is only a supposition on my part – that the additional plaintiffs were added for two reasons. The first reason is that with the additional plaintiffs it shows that more people than just Mr. D’Cruz are impacted by Title 18, Sections 922(b)(1) and 922(c) which ban the sale of handguns to the 18-20 year old adult citizens. Secondly, and perhaps more importantly, the addition of the NRA as a plaintiff to the suit removes the possibility that the issue becomes moot when Mr. D’Cruz and Mr. Payne turn 21. Federal cases can take years to move through District Court and then the appellate courts.

In discussing the law at issue, the amended complaint recognizes that:

The Second Amendment secures the right to purchase handguns and handgun ammunition for self-defense and other lawful purposes. And the Second Amendment’s protections extend in full to law-abiding adults aged eighteen or older.

The other major addition to the complaint is information on Mr. D’Cruz taking and passing the course required to obtain a Texas Concealed Handgun License which he passed with flying colors. I believe the intent is to show that Mr. D’Cruz is extremely competent with the handling of a handgun.

With the exception of naming the plaintiffs instead of just referring to them as “plaintiffs”, both Counts and the Prayer for Relief remain the same as the original complaint.

D’Cruz et al v. McCraw et al

The National Rifle Association was added to this case in the amended complaint as an organizational plaintiff. It notes it has members in Lubbock and west Texas who are in the 18-20 year old range who would wish to carry a handgun for self-defense and would want to obtain a Texas CHL. Again, I think the NRA was added as a plaintiff to protect the suit from being declared moot if Mr. D’Cruz either ages out or, peculiar to this case, joins the military.

Additions to this complaint include a paragraph outlining the 14 requirements under Texas Gov’t Code § 411.172(a) that must be met in order to qualify for a Texas Concealed Handgun License. Another addition is a paragraph describing the coursework and shooting proficiency tests required to demonstrate evidence of handgun proficiency required under Texas Go’vt Code § 411.174(a)(7).

Mr. D’Cruz, to bolster his case, took the required Texas CHL course:

On September 26, 2010, Mr. D’Cruz completed a handgun safety and proficiency course taught by a CHL instructor licensed by the Texas Department of Public Safety. The course consisted of approximately eight hours of classroom instruction and two hours of range instruction. The course culminated with administration of the written and range tests that are given to applicants for a CHL. To qualify for a CHL, applicants must achieve a score of 70% or better; an applicant may attempt each test three times to achieve the required score. On his first attempt, Mr. D’Cruz achieved a score of 92% on the written examination and a score of 93.6% on the range examination. Indeed, in terms of knowledge and skill with respect to the safe and proper handling of handguns, Mr. D’Cruz’s instructor has stated that he would place Mr. D’Cruz in the top 5-8% of students he has instructed over fifteen years.

Thus, with the only exceptions being his age and lack of military service, Mr. D’Cruz would qualify under Texas law for a concealed handgun license. When he went to apply again online for his Texas CHL, he got the following:

Upon receiving Mr. D’Cruz’s “customer authentication” information requested on the first page of the application, the website returned the following response: “Persons between the ages of 18 and 21 are only eligible to apply for license under the Active Military or Veteran conditions.”

The remainder of the complaint including both Counts 1 and 2 and the Prayer for Relief remain the same as the original complaint. His grounds remain an infringement of his Second and Fourteenth Amendment rights to keep and bear arms as well as an infringement of his Fourteenth Amendment rights to equal protection based upon his age.

Bearing in mind that I am not a lawyer, I think the changes strengthen both cases. Protection against the case becoming moot is built in with the addition of the NRA as an organizational plaintiff. Moreover, with Mr. D’Cruz now having taken the required handgun safety and proficiency class and passed with flying colors, it is hard to argue that it is a safety or proficiency issue. Given that the judge in this case, Judge Sam Cummings bolstered the Second Amendment as an individual right with his opinion in the Emerson case, it will be very interesting to see how these cases turn out. At least, we know we can’t blame a loss on an anti-gun judge.

Voter Fraud

By all accounts, the majority in both Congress and many state houses will turn on a small number of races rated as “toss-ups” or “in play”. Along with this have been many reports of voting machine irregularities across the country. In my home state of North Carolina have come many reports of voters wishing to vote a straight Republican ticket and it showing up on the screen as something other than what the voter indicated.

Thanks to starting my morning reading with the Day By Day web cartoon, I found an app that is available for the iPhone, Droid, and Blackberry that contains pre-formatted reports (along with image capture) for reporting voter fraud and intimidation incidents that can be sent to the various Board of Elections. While this won’t work for me as I don’t own any of those phones and I have already voted early, I would encourage everyone who has one of those phones and who hasn’t voted to download the app. It can be found here.

Professor Glenn Reynolds, the Instapundit, has been arguing for a return to the paper ballot for years. Given the ease with which it seems voting machines can be tampered with by those trying to pervert democracy and steal elections, I think he is on to something. I used to vote on a paper ballot and it was quick, easy, and efficient. I wish my county still was allowed to use that system by the NC Board of Elections.

Quite the Contrast

Last year the Joyce Foundation gave a grant for $250,000 to the International Association of Chiefs of Police. The purpose of the grant was:

To continue implementation efforts around the recommendations contained in the report of the Great Lakes States Summit on Gun Violence.

The specific recommendations of the Great Lakes States Summit on Gun Violence (sic) include:

• Requiring judges and law enforcement to remove guns from situations of domestic violence, as well as from people whose adjudicated mental illness, drug use, or previous criminal record suggests the possibility of violence
• Requiring that all gun sales take place through Federal Firearms License (FFL) holders with mandatory background checks
• Enacting an effective ban on military-style assault weapons, armor-piercing handgun ammunition, .50 caliber sniper rifles and other weapons that enable criminals to outgun law enforcement
• Restoring COPS funding to provide vital resources to state, local and tribal law enforcement
• Repealing the Tiahrt Amendment, which hinders investigation of illegal gun trafficking
• Destroying guns that come into police possession once their law enforcement use has ended
• Improving officer training in debriefing suspects and handling crime guns, including tracing all guns
• Training police officers in tactics that can lessen the possibility that a hostile situation will erupt in violence
• Mandating safe storage of firearms by private citizens and providing safe facilities where gun owners can store their weapons
• Mandating reporting of lost and stolen firearms

While improving officer training is a laudable objective, most of the rest of these recommendations trample upon the civil rights of lawful Americans. That they would improve public safety and reduce crime is quite debatable. That it would help the officer on the street, again debatable.

Today’s Shooting Wire contained an item about a major donation given to two organizations that assist families of law enforcement officers killed in the line of duty. The organizations are the Concerns of Police Survivors (C.O.P.S.) Charity and the Drug Enforcement Administration Survivors Benefit Fund (DEA SBF). COPS was given $50,000 and DEA SBF was given $20,000. The donations were presented at the recent IACP Conference held in Orlando. These donations brought the amount given by the donor to non-profit organizations to $550,000 for 2010.

The donor? Glock, Inc. You know, the international arms merchant and purveyor of undetectable plastic pistols which threaten airline passenger safety.

So in the greater scheme of things who is really doing more for the officer on the street and their families? My vote goes to Glock.

Illinois FOID Challenge – Plaintiffs Respond to Motion to Dismiss

As I posted a little more than a week ago, the State of Illinois sought to have the case brought by the Mountain States Legal Foundation on behalf of Ellen Mishaga challenging the state’s FOID requirements dismissed. They maintained that the FOID Card Act provided exceptions for out-of-state residents and thus they had not abridged her constitutional right to keep and bear arms nor her right to travel freely.

Attorney Jim Manley filed a reply in opposition to the defendant’s motion to dismiss yesterday. He gives a two-fold argument as to why the court should not dismiss this case: standard of review and that no FOID Act exceptions apply to Ms. Mishaga’s claims.

Courts, when reviewing motions to dismiss for failure to state a claim, must view the initial complaint in such a way as to be most favorable to the plaintiff. This includes accepting as true all factual allegations and all possible inferences stemming from those allegations. Thus, as the plaintiff argues:

Accepting the truth of the allegations in the Complaint, and drawing all inferences in the light most favorable to Ms. Mishaga, this Court should deny Defendant’s Motion to Dismiss.

The defendant suggested that 430 ICLS 65/2(b)(9) and (10) would be exceptions that would apply to Ms. Mishaga and allow her to possess a firearm in the state of Illinois without a FOID Card. The plaintiff’s reply argues that neither of these apply to Ms. Mishaga’s case. First, 430 ICLS 65/2(b)(9) states that “nonresidents whose firearms are unloaded and enclosed in a case” are not required to hold a FOID Card. However, an unloaded and cased firearm is inoperable and not available for self-defense. The plaintiff argues that “this subsection of the FOID Act suffers from the same constitutional infirmity as the law struck down by the Supreme Court in District of Columbia v. Heller.” The Supreme Court said in Heller that inoperable firearms make it impossible for citizens to use them in self-defense and thus it was unconstitutional.

Subsection (9) specifically prohibits the constitutionally-protected activity Ms. Mishaga intends to engage in by requiring nonresidents’ firearms to be “unloaded and enclosed in a case” at all times. 430 ILCS 65/2(b)(9). Thus, even if 430 ILCS 65/2(b)(9) were not unconstitutional, this exception to the FOID Act would offer no support for Defendant’s Motion to Dismiss. Accordingly, Ms. Mishaga respectfully requests that the Court deny Defendant’s Motion to Dismiss.

The second exception to the FOID Card noted by the defendant involved citizens licensed or registered to possess a firearm in their resident state. However, Ms. Mishaga is a resident of Ohio which requires no licensing or registration to possess a firearm in that state. Indeed, as the plaintiff’s points out:

Ohio law forbids such licensing or registration. See Ohio Rev. Code § 9.68(A) (“[A] person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.”)

Lawful possession in one’s state of residence is not the same as either registration or licensing though this seems to be the argument of the defendant. If that were the case, then Ms. Mishaga could possibly lawfully possess a functional firearm in Illinois without a FOID Card. As the brief in opposition notes:

Defendant conflates “licensed or registered” possession of a firearm with “lawful” possession of a firearm; however, the statutory exception applies only to the former….Unfortunately, neither Defendant nor this Court has the power to rewrite Illinois law. Virginia v. American Booksellers Ass’n, 484 U.S. 383, 397 (1988) (“we will not rewrite a state law to conform it to constitutional requirements.”); United States v. Wilburn, 473 F.3d 742, 746 (7th Cir. 2007) (“[I]t is not our role to rewrite the law.”). Accordingly, Ms. Mishaga respectfully requests that the Court deny Defendant’s Motion to Dismiss.

Frankly, having read both the motion to dismiss and the plaintiff’s reply in opposition, I was amazed that Illinois made the arguments that they did in the first place. One argument provided for an inoperable firearm when it was clear from the original complaint that Ms. Mishaga was seeking to possess a functional firearm for self-defense. The other argument made the erroneous assumption that Ohio required licensing or registration. It may be too much to expect that Illinois will continue to make these types of errors in the future but one can always hope.

Is NYC Trying to Avoid Being the Next Target?

Sebastian at the Snow Flakes In Hell blog had two posts yesterday about New York City and Mayor Bloomberg. One post detailed the proposed reduction in fees to obtain a gun permit in the city and the other looked at New York’s “reasons” for denying a permit. Both of these are worth a read.

I’m sure that NYC will be sued eventually on Second and Fourteenth Amendment grounds. I just don’t think it will be until some of the other cases currently in litigation advance beyond the competing motions stage. Of course, the New York City Council could pass some new egregious gun restriction like Chicago and then I think the suits would fly.

However, I don’t think a full frontal assault on NYC and their laws, in my opinion, is the course that Alan Gura and the Second Amendment Foundation will take. It isn’t that “the Alans” won’t sue big targets – they will – but I think they want to have all the pieces in place when they do sue. One of those pieces has got to be Kachalsky v. Cacace which is working its way eventually to trial in U.S. District Court for the Southern District of New York. A precedent set in this case would then be valid in NYC because they are in the same judicial district.

Strategy and not just mere tactics is what will win our battles with the anti-gun, anti-civil rights forces. Just filing a case because you can – see for example the third Chicago gun case, Second Amendment Arms et al v. Chicago et al – is not the way to go about it.