Month: November 2010

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Maryland AG Asks For Status Conference In Woollard Case

November 15, 2010 by 1 Comment

The Maryland Attorney General’s Office has asked U.S. District Court Judge Frederick Motz for a status conference in the Woollard case according to a letter they sent on Friday. This case was brought on behalf of Raymond Woollard by the Second Amendment Foundation over the state’s denial of the renewal of his concealed carry permit. The State Police and the Maryland Handgun Permit Board contend that Mr. Woollard failed to show “apprehended danger” and thus was denied a renewal of his permit.

Maryland is requesting the status conference because Alan Gura indicated to them on Thursday that he intended to file a motion for summary judgment.

Defendants believe that engaging in summary judgment practice at this stage of the litigation is premature, and have communicated that to plaintiffs. Defendants understand that plaintiffs nonetheless intend to file a motion for summary judgment as soon as today. In light of that, defendants request that the Court hold a status conference in the near future to address the issue of the timing of filing summary judgment motions. Plaintiffs have stated that they do not believe there is any need for a scheduling conference at this time.

So far in the case, Maryland has filed a motion to dismiss the complaint on the grounds of abstention, questions on the standing of the Second Amendment Foundation, and a Rule 12(b)(6) challenge to one of the counts. This was responded to by the plaintiffs and then a reply to the response from the defendants. At no time has either side engaged in discovery nor has the State of Maryland argued that their law doesn’t violate the Second Amendment. A motion for summary judgment is brought when the facts of the case are known and a ruling is being sought on the application of the law to the known facts.

Commentators on the Maryland Shooters forum speculate that Maryland has been dragging their feet on the case and the plaintiffs are making a strategic move to get them moving. They well could be right. This will bear watching.

UPDATE: Alan Gura was true to his word and filed his Motion for Summary Judgment this morning.

He also filed a letter in response to the Maryland Attorney General’s Office request for a status conference. He says that he didn’t think that “the routine filing of a cross-dispositive motion does not occasion a status conference.”

His letter examines the rules for filing motions for summary judgment. He notes that under the Federal Rules of Civil Procedure 56(c)(1) he could have filed a motion for summary judgment at the same time he filed the complaint in this case. If the state thinks his motion is premature, Gura says they can file a motion under Rule 56(f) to seek discovery which would identify which facts it expect discovery to produce. Nonetheless, he goes on to say that his motion is “aimed exclusively at a legal, not a factual, dispute” and that Rule 56(f) would not apply.

He goes on to add:

Indeed, even if this Court were to grant Defendants’ motion to dismiss and deny Plaintiffs’ motion as moot, the appellate courts would prefer a complete record. For example, the leading Second Amendment case, District of Columbia v. Heller, 128 S.Ct. 2783 (2008), saw both the D.C. Circuit and Supreme Court grant a plaintiff’s motion for summary judgment that the district court did not reach, as it had granted defendants’ motion to dismiss. Had the summary judgment motion not been filed, that case would still be unresolved.

He concludes by saying that if the rules and well-established practice allow his motion and if the State of Maryland objects, then the rules give them a way to make that argument. In the meantime, the plaintiffs are entitled to ask for relief and to put it on the record.

I will post on the Summary Motion after I have had time to read it. It is a darn shame when paying work gets in the way of blogging!

UPDATE II:  On Wednesday, Judge J. Frederick Motz sent a memo to both the plaintiffs and defense attorneys. He ordered a status conference to be held by phone on Friday, November 19th at 11am. While the court records indicate that the status conference was held, nothing was said about any agreements, schedules, or any other item.

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The Devil Is In The Details

November 14, 2010 by

On Friday, the NRA-ILA sent out a Grassroots Alert on the recent Department of Justice Inspector General’s report on ATF and Project Gunrunner. As many are aware, the OIG’s report criticized the effectiveness of ATF’s Project Gunrunner. Great attention has been put on this report by the media and by bloggers with reference gun traces and the smuggling of firearms from the U.S. to Mexico. I did a post on this on Wednesday urging people to read Marko Kloos’s response to the BBC’s take on the report.

However, the NRA-ILA’s Grassroots Alert deals with an item embedded in the document that hasn’t received much attention. That is, a proposal to make multiple long-gun purchases within a 5-day period reportable to the ATF. Currently, only multiple handgun purchases are required to be reported to the ATF per the Gun Control Act of 1968 (18 U.S.C. § 923(g)(3)). The multiple purchases of handguns that must be reported can take place at one time or any time over a period of five business days.

Let’s examine the report to see what the DOJ IG and the ATF had to say on this. First, from the Executive Summary:

We also found that while reports of multiple sales of handguns produce timely, actionable investigative leads for ATF, the lack of a reporting requirement for multiple sales of long guns – which have become the cartels’ weapons of choice – hinders ATF’s ability to disrupt the flow of illegal weapons into Mexico. p.iv.

From Part II: ATF Firearms Trafficking Intelligence and Information:

The Gun Control Act requires that gun dealers report multiple sales of handguns (defined as two or more handguns sold at once or during any 5 consecutive business days) to ATF.50 As discussed below, these multiple sales reports provide ATF with timely, actionable leads that can enable it to more quickly identify suspected firearms traffickers and disrupt their operations.51 However, gun dealers are not required to report multiple sales of long guns to ATF.52 Because long guns have become Mexican cartels’ weapons of choice, multiple sales reporting has become less viable as a source of intelligence to disrupt the illegal flow of weapons to Mexico. p.36

Multiple sales of long guns are not subject to the same reporting requirements as handguns. Yet, long guns have become the Mexican cartels’ weapons of choice. p.37

Because reporting multiple sales of handguns generates timely, actionable investigative leads for Project Gunrunner, and because long guns have become Mexican cartels’ weapons of choice, we believe that the reporting of multiple sales of long guns would assist ATF in identifying firearms trafficking suspects. Our analysis shows that many long guns seized in Mexico have a short time-to-crime and were often a part of a multiple purchase. We therefore believe that mandatory reporting of long gun multiple sales could help ATF identify, investigate, and refer for prosecution individuals who illegally traffic long guns into Mexico. p.39-40

Recommendation

We recommend that ATF:

2. Work with the Department to explore options for seeking a requirement for reporting multiple sales of long guns. p.40

From the Conclusion and Recommendations:

In this report, we make 15 recommendations to ATF to help improve their efforts to combat firearms trafficking from the United States to Mexico. Specifically, we recommend that ATF…Work with the Department to explore options for seeking a requirement for reporting multiple sales of long guns. p.94

 And finally, from Appendix V: The Bureau of Alcohol, Tobacco, Firearms, and Explosives’ Amended Response which was sent by Kenneth Melson, Deputy Director (currently the highest ranking official in the ATF and former Acting Director). Listed under ATF’s response to OIG’s recommendations is this:

2. Work with the Department to explore options for seeking a requirement for reporting of multiple sales of long guns.

ATF concurs, but notes that this may require a change to the Gun Control Act which is beyond ATF’s and the Department’s authority. ATF will explore the full range of options to seek information regarding multiple sales of long guns. p.108

One wonders what are the “full range of options” that Mr. Melson plans to explore. Will they come up with a “voluntary” plan to have Federal Firearms Licensees send that data to ATF? And what happens if a FFL does not “voluntarily” report multiple sales of long guns? Will their annual inspection be that much tougher or will there be showcase raids of gun dealers who are “suspected of trafficking” in guns to the Mexican drug cartels?

As to long guns being the firearm of choice of the narco-terrorists south of the Rio Grande, I have no doubt. As trainer Clint Smith says, you carry a handgun to fight your way back to the rifle you shouldn’t have put down in the first place. That said, I would wager house money that most of their arsenals come from just that – a Mexican Army arsenal. Or a Venezuelan Army arsenal courtesy of Hugo Chavez.

I don’t know about you but I can think of a few times when I would have been reported to ATF for multiple long gun purchases within a 5-day period. For example, I’ve been to local auctions where I got lucky and won multiple bids. I don’t think the Mexican drug cartels are interested in Savage Model 1921’s in .250-3000 Savage or Mannlicher-Schoenauer Model 1910’s in 7×57 but both would have been reported to the ATF under the OIG’s proposal which has the ATF’s concurrence.

Enough is enough. It is time to nip this in the bud.

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Second Amendment Foundation Membership Specials (updated)

November 14, 2010 by

The Second Amendment Foundation is giving you an incentive to join – as if the great work that they and Alan Gura are doing in the courts isn’t enough.

All new memberships or renewals at the basic $15 level will also come with a copy of Suzanna Gratia Hupp’s book From Lubys to the Legislature. The book is $15.61 on Amazon so that is like a free membership with the book.

Those who donate $25 will be sent a 2008-2010 set of the Journal on Firearms & Public Policy.

Finally, if you become a Life Member, which is only $150, they will send you everything above AND all six of the DVD’s in their Personal Firearm Defense DVD series. If you are already a Life Member, then a donation of $75 will get you the DVD’s.

These specials end at midnight on November 14th. I presume that is Pacific Standard Time.

You can either call SAF at (425) 454-7012 or just go to the link here.

Remember that the Second Amendment Foundation is a 503(c)(3) non-profit and donations to them can be tax deductible. As we always say in my business, talk to your tax professional about the deductibility of your donation.

While I had donated to SAF earlier this year as a thank you for their hard work on the McDonald case, I never got around to joining. And that was even after going to their great Gun Rights Policy Conference in San Francisco. Well, I recognize a great deal when I see it so I just sent in my donation for a Life Membership – or, as it is more properly called, the Defender’s Club.

UPATE: The Second Amendment Foundation asked that I mention that they reserve the right to substitute items of a like value if they run out. They say they have gotten a great response to this promotion and they don’t want donors to be surprised or disappointed.

Also, if you are taking advantage of their offers, please make sure to tell the SAF which promo you want in the comments sections of either method of paying.

Remember, this ends at midnight TONIGHT Pacific Time. If you are going to take advantage of these offers, do it now.

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Made in China

November 14, 2010 by

After a lapse of many years, I have started back to using a fountain pen regularly. In addition to writing smoothly, they have improved my handwriting. They have also stirred the inveterate collector in me which has led me to start checking out pen forums and blogs.

This morning I found this little tidbit about the pens that President Obama used to sign the Patient Protection and Affordable Care Act (PPACA). PPACA is better known as ObamaCare. Obama used 22 custom pens with the Presidential Seal and his signature according to the Washington Post. One recipient of a signing pen confirmed that they were made by Cross.

Here is where it gets interesting. The Goldspot Pens Blog has identified the pens as the Cross Townsend Black Lacquer with silver trim rollerball pen. These pens sell at retail for $130 a pop and that is without the Presidential Seal and engraving.

True, it is custom-ized but not custom made. Another side note is that they mention Cross is an American company, which is true, but all Cross pens are made in China now. We owe China billions of dollars anyway, so what’s a few pens between friends?

So there you have it. A bill that will push the deficit to previously unheard heights which will probably be financed by selling Treasury Bonds to the Chinese was signed with American pens made in China.

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Free Classic Shooting Books

November 14, 2010 by

The AccurateShooter.com has a list of classic shooting books that are free to either read online or to download in PDF format. And as they say, free is good:

In today’s economy, Free is good. Here’s a list of older shooting books that can be downloaded for FREE from Google Books. This list, created by German Salazar, includes many classic treatises on marksmanship that still have value for today’s competitive shooters. In addition, we’ve included illustrated firearm histories, such as Townsend Whelen’s fascinating book, The American Rifle.

The list of books includes:

  • The Bullet’s Flight From Powder to Target, Franklin W. Mann, 1909, 384 pages.
  • Irish Riflemen in America, Sir Arthur Blennerhassett Leech, 1875, 216 pages.
  • The American Rifle, Townsend Whelen, 1918, 637 Pages.
  • Suggestions to Military Riflemen, Townsend Whelen, 1909, 243 pages.
  • Modern Rifle Shooting From the American Standpoint, W. G. Hudson, 1903, 155 pp.
  • Manual for Rifle Practice: Including Suggestions for Practice at Long Range, George Wood Wingate, 1879, 303 pages.
  • How I Became a Crack Shot — With Hints to Beginners, W. Milton Farrow, 1882, 204 pp.
  • The Gun and its Development, William Wellington Greener, 1907 (8th Ed.) 786 pages.
  • Cartridge Manufacture, Douglas Thomas Hamilton, 1916, 167 pages.
  • Description and Rules for the Management of the United States Rifle, Caliber .30, Model of 1903, United States Army Ordnance Dept., 1904 (5th rev. 1914), 72 pages.

Links to more free shooting and marksmanship books can be found here.

H/T Mark Vanderberg

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At the Eleventh Hour

November 12, 2010 by

Lest I forget to say it, thank you to all of our veterans, living and dead. Without you, we would not have the freedom we have today.

The Deceased

My father, 1SGT Paul Richardson, was an Army veteran of both WWII and Vietnam who was originally drafted in October 1940.

My Uncle John Sheridan was a WWII Navy vet who enlisted on December 8, 1941 and served aboard the aircraft carrier USS Bennington towards the end of the war.

My late wife’s father, Ray Lipe, was a WWI Navy vet. No, I didn’t forget the extra “I” – Ray really was a WWI vet. When the Selective Service called his mother to ask why he didn’t answer his Army draft notice, they were told that he was at boot camp at Naval Station Great Lakes. He tried to get the Navy to allow him to serve again during WWII but was told he was too old.

The Complementary Spouse’s father, Clarence, was a Korean War vet who served in the USAF’s Air Weather Service and was stationed in Japan providing weather briefings to pilots heading into North Korea. He served in the Air Force Reserve later in the 50’s and left as a Major.

The Living

My best friend’s son, Capt. John Rodriguez, is now serving with the 3rd Infantry, the Old Guard. Prior to that he spent a year in Afghanistan in the Korengal Valley with Viper Company, 1-26 Infantry, 3IBCT, 1st Infantry Division.

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An Idle Mind Is The Devil’s Workshop

November 11, 2010 by 2 Comments

There are a great many proverbs and quotes dealing with idle hands and idle minds. The title above is attributed to an old English proverb. I think they all must have had something like the Bureau of Alcohol, Tobacco, Firearms, and Explosives – ATF – in mind when they first uttered it.

Last Friday, the ATF released  ATF Ruling 2010-4 dealing with AirSoft replica M-16’s. The key part of the ruling was its holding:

Held, air gun (i.e., a gun that expels a projectile using compressed air, carbon dioxide, propane, or similar gas) replicas of AR/M-16 variant firearms that provide housing for a hammer and firing mechanism with substantially the same design as AR/M-16 variant firearm receivers, and mounting points for attaching an upper assembly containing a barrel and bolt, are firearm frames or receivers, and are, therefore, firearms, as that term is defined by 18 U.S.C. 921(a)(3)(B), and its implementing regulation, 27 CFR 478.11.

This must have been considered so embarrassing by some in the Department of Justice that it has now disappeared from the ATF website. According to Google, it was there on November 9th when they cached it. However, it is now gone.

I don’t know any sane person who would try to put pot metal AirSoft parts together with an AR upper and then try to fire a live round. But then again this was the same Firearms Technology Branch which at one time had decreed that a shoestring was a machine gun. It is the same Firearms Technology Branch that decided the fake can or barrel shroud on the American Tactical Imports’ GSG-5 SD should be regulated under the National Firearms Act.

Perhaps a better quote regarding the ATF comes from British statesman and diplomat Lord Chesterfield – “Idleness is the only refuge of weak minds, and the holiday of fools.” If only they would go on a permanent holiday!

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Gura Calls Out NY AG’s Office – And Judge Agrees

November 11, 2010 by

In a letter sent Friday and filed on Monday, Alan Gura called out the New York State Attorney General’s Office for their attempt to vacate or set aside the previously agreed upon briefing schedule in the Kachalsky case. They asked that the briefing schedule be delayed indefinitely and have proposed no new schedule. Gura said this was “dilatory and lacks any basis.”

And it appears from her handwritten comments on the letter that Judge Cathy Seibel agrees with Gura.

In his 3 page letter, Gura reiterated what had happened in previous meetings and the September 7th status conference. He noted that all the parties had agreed to a briefing schedule prior to the September 7th status conference and that the Attorney General’s Office had backed out at the last moment. The Attorney General’s Office had decided that they didn’t want to consent to the plaintiffs filing a motion for summary judgment. Nonetheless, all parties had agreed to a briefing schedule as a result of the status conference with Judge Seibel on September 7th.

One bone of contention was that the denials of the pistol permits for Alan Kachalsky and Christina Nikolov happened before the McDonald decision was handed down. Gura proposed that the complaint be amended to add more plaintiffs who had been denied after the McDonald decision and this was accepted by the Court and all defendants. It was understood by all parties that the plaintiffs’ attorneys would only add new additional parties (both new plaintiffs and defendants) to the case but not make any substantive changes in their arguments or theories. The amended complaint filed last week with the District Court did exactly that – 3 new plaintiffs and 2 new defendants and no changes to the arguments.

Gura notes that the attorneys for the State Defendants have come back to the court repeatedly asking for more time to make their motion along with cutting the amount of time that the plaintiffs have with which to respond. Moreover, the Attorney General’s Office obtained permission as noted in a post here last week to submit a 50-page motion and memorandum to dismiss which is twice the normal size. As he notes in his letter to the court:

Notwithstanding the Attorney General’s Office’s previous lack of reciprocal courtesy on the summary judgment schedule, to accommodate that office, I agreed to a compromise that effectively cut our response time in half: the Attorney General’s Office would serve its brief on November 5 instead of October 22, and our opposition would be extended trom November 12 to the 15th. The Court subsequently adopted this modified schedule.

At no point during the conversations relating to this last modification did counsel indicate that he would want additional pages. But last week, counsel obtained permission to double the size of his brief. So we face the prospect of having agreed to half the time -to respond to double the brief, and we are already looking at having a responsive pleading served on November 5, for a case filed July 15 – 92 days versus Rule 12’s 21-day standard.

Westchester County also seems to be trying to play games and is called out as well. The County is now saying that they need to be served “officially” with the amended complaint even though they have gotten notice of each and every filing electronically. Gura states that if the “County would ignore the amended complaint, Plaintiffs would request entry of default.”

Gura ends his letter by saying he hoped that the Attorney General’s Office would accept service and appear on behalf of the new defendants (Lorenzo and Holdman) as there is no need to have duplicate cases. He notes that he has worked with opposing counsel to agree on a briefing schedule for this case and that time and time again they have come back asking for changes.

Judge Seibel, as I noted above agrees with Gura, and says in her handwritten notes (which are transcribed verbatim):

The Court understood the proposal in Mr. Tomassi’s (sic) 10/8/10 letter as Mr. Gura does – i.e., the parties contemplated an amended complaint concurrent w/ the motion to dismiss. The Court also does not see why the representations of the new Defendants cannot be formalized quickly. The original Defendants shall file their motion to dismiss on or before 11/9/10. Once the new defendants are represented, they may join the original Defendants’ arguments by submitting a letter stating the same, & may add any additional arguments unique to them & the amended complaint. This shall be done by 12/6/10. Plaintiffs may oppose the original Defendants’ motion on whatever date they would like, which they should provide to me by letter, & the same is true for opposition to the new Defendants submission if it contains new arguments. Defendants to reply 3 weeks thereafter, with plaintiffs reply on cross-motion 2 weeks thereafter. Plaintiff’s counsel should be mindful, in deciding when to oppose, that the Court has a long queue of motions & is unlikely to reach this case for some time in any event. So Ordered. Cathy Seibel USDJ 11/1/10

It is my impression from Judge Seibel’s Individual Court Practices that she likes to keep an orderly court and is thus none too happy with the games that the State of New York is trying to play in her court room.  Her handwritten comments are a distinct rap across the knuckles to the Attorney General’s Office and is a reminder that they need to shape up and fly right.

UPDATE: The State of New York’s Motion to Dismiss which Judge Seibel required to be submitted by Tuesday, November 9th is still not up on the Pacer.gov website. There have been no updates since November 8th so I don’t know if they have gotten an extension or not. If there are any changes, I’ll keep you posted.

Of course, it could be that a 50-page Motion is just too large and wordy for the on-line system.

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If The Cops Won’t Respond, The Residents Will

November 11, 2010 by

I’ll be honest. There are places around this world that just scare me and that I avoid like the plague. East St. Louis, Illinois is one of those places. When the phrase “urban decay” was first coined, the author had the image of East St. Louis in his or her mind.

However, when enough good people say enough is enough, it is a sign of hope. As the video below describes, one neighborhood in East St. Louis has gotten fed up with the level of crime in their neighborhood and the lack of police response. Rather than to be dependent upon the police for their protection, the residents have started to arm themselves.

Kurt Hoffman, the St. Louis Gun Rights Examiner, looks at the story here.

East St. Louis Mayor Alvin Parks, apparently hoping to be reassuring, tells us that the city “is investigating” the complaints of slow police response (when there is any police response), and assures us that “they have a plan to curb crime in that area.”

Well, Mayor–it seems some residents have a plan, too. Of course, one problem with the residents’ plan is that they are attempting to implement it in Illinois, where armed self-defense in public is utterly prohibited.

This is the same Mayor Parks that said a year ago that people don’t have the right to bear arms except within their homes.

You have the right to bear arms, but you have the right to bear them within your home, not on the streets, not in your cars, not inside stores.

One of the tragedies of the recent elections is that Pat Quinn was elected Governor of Illinois instead of Bill Brady. Quinn, who is anti-gun, has vowed to veto any law that would extend concealed carry to the citizens of the State of Illinois. Brady had said he would have signed such a law. One must wonder if Pat Quinn has enough courage to go alone, unarmed, and without his State Police escort to East St. Louis. I sincerely doubt it. However, I have no illusions that Governor Quinn, like Mayor Parks, will continue to tell these good people that guns are bad and that they should rely upon the police for their protection all the while tut-tutting about the level of crime in East St. Louis.

Frankly, if anything is going to done about crime and violent criminal actors in East St. Louis, it will be at the hands of a resident like Rowena Howard and not due to any efforts by a politician like Alvin Parks or Pat Quinn.