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Linton V. Becerra – Another Second Amendment Lawsuit Against California

December 23, 2018 by 4 Comments

Chad Linton and Paul McKinley Stewart had screwed up in their younger days, paid their debt to society, and went on to lead lives in California as good, productive citizens. More importantly to our discussion here, the relevant courts in both Washington State and Arizona had explicitly expunged their non-violent felony convictions and explicitly restored their rights to own, possess, and purchase firearms. They further underwent multiple background and fingerprint checks and Linton actually had purchased firearms in California in the past. However, that is not good enough for California now. When they each went to purchase firearms starting in 2015, they were turned down the California Department of Justice and its Bureau of Firearm based upon Cal. Pen. Code §§ 29800 and §§ 30305.

Messrs. Linton and Stewart along with institutional plaintiffs the Firearms Policy Foundation, the Firearms Policy Coalition, the Second Amendment Society, the Calguns Foundation, and the Madison Society Foundation filed suit in US District Court for the Northern District of California on Thursday, December 20th. The parties are represented by attorney George M. Lee of Seiler, Epstein, Ziegler & Applegate of San Francisco. They named California Attorney General Xavier Becerra (D-CA), Acting Chief of the Bureau of Firearms Martin Horan, and Deputy Attorney General Robert Wilson as defendants.

Mr. Linton was stationed at NAS Whidbey Island when he was stopped for a DUI and trying to elude police. He pled guilty and was sentenced to time served (7 days) and probation with the promise that his felony conviction would be downgraded to a misdemeanor if he completed his probation successfully which he did. He received a certificate of discharge stating that all of his civil rights were restored. Fast forward from 1987 to 2015. Mr. Linton attempted to buy a handgun but was denied by the State of California due to the prior felony. He hired an attorney in Washington State to reopen the proceedings, withdraw his guilty plea, and enter a not-guilty plea. The Superior Court in Washington State vacated his prior conviction, set aside his guilty plea, and restored his rights.

On April 18, 2016, the Superior Court of the State of Washington, Island County,
further issued, upon Plaintiff’s petition, an Order Restoring Right to Possess Firearms pursuant
to Revised Code of Washington (RCW) 9.41.040(4). A copy of this order is attached as Exhibit
B. As part of that petition, and order, the court found that Plaintiff Linton was qualified,
pursuant to RCW 9.41.040(4), to have the right to possess firearms restored to him, and
accordingly, ordered “that Petitioner Chad Linton’s civil rights and right to possess firearms are
FULLY RESTORED pursuant to RCW 9.41.040(4).” (Id.) The court further ordered the
Washington State Patrol to transmit a copy of its Order to the Federal Bureau of Investigation.

When later in 2016 Linton attempted to purchase a rifle the California DOJ denied it and sent him a letter stating that he was ineligible due to being a felon. His California attorney made multiple requests to the California DOJ to clear up the matter and provided them with the Washington State court orders. Linton assumed the matter had been cleared up when he went to purchase a revolver and was again denied. Soon thereafter he was visited by agents of the California DOJ’s Armed Prohibited Persons System enforcement project who seized all of his firearms including a family heirloom. Bear again in mind that he was not a prohibited person under either Washington State or Federal law. Indeed Deputy AG Robert Wilson went so far as to say that they would not honor the Washington State court’s findings and that Mr. Linton try to get a presidential pardon as that is the only thing they would accept.

Mr. Stewart made similar successful efforts to get his record expunged by the State of Arizona. In 2016 the Yuma County Superior Court specifically sent aside his conviction and restored his firearm rights. The Arizona Department of Public Safety sent Stewart more documentation indicating the felony conviction had been set aside and his records had been corrected. Notwithstanding this, like Mr. Linton, he was denied when he sought to purchase a firearm.

Count One alleges the state has violated the plaintiffs’ rights under the Second Amendment by denying them the right to possess firearms in their home for self-defense.

Notwithstanding the non-violent nature of those
convictions, and the subsequent restoration of plaintiffs’ rights, the laws and Defendants’
policies, practices, and customs described herein, as applied to Individual Plaintiffs, amount to a
total and permanent deprivation of their fundamental, individual right to keep and bear arms and
ammunition, as guaranteed by the Second Amendment, and are therefore an infringement upon
those rights. The circumstances surrounding the Individual Plaintiffs’ convictions are therefore
and should be distinguishable from those persons that have been historically excluded from the right to keep and bear arms.

Count Two states that the defendants’ actions violate the Full Faith and Credit Clause of Article IV, Section 1 of the Constitution. Both the Constitution and subsequent Supreme Court decisions require each state to honor the valid judgments of courts in other states. The Supreme Court said in 1998 in Baker by Thomas v. General Motors Corp, that “A final judgment in one State, if rendered by a court with adjudicatory authority over the
subject matter and persons governed by the judgment, qualifies for recognition throughout the
land.”

The third and final count states that California is violating both the Privileges and Immunities Clause of Article IV, Section 2 and the 14th Amendment, Section 1. California law provides a process whereby someone convicted of a “wobbler” felony can get his or her firearms rights restored. A wobbler felony is one where the person could have been charged with either a felony or misdemeanor for the offense. If the person gets the felony downgraded to a misdemeanor under Pen. Code § 17(b), they would also be eligible to get their record expunged in its entirety under Pen. Code § 1203.4. Both would allow the person in question to have their firearms rights restored.

However, the State of California will only honor the reduction of these qualifying
felony convictions utilizing the statutes and the process described above. As shown throughout
this complaint, California refuses to honor the comparable process utilized by other states,
including the States of Washington and Arizona, shown above, even where the courts of those
jurisdictions expressly have set aside the felony convictions and have restored firearms rights to
such persons who have successfully completed their terms of probation. Accordingly, Defendants’ refusal to honor the set-aside or vacation of those felony convictions, and/or
restoration of firearm rights, by courts of those other states, amounts to unlawful discrimination,
favoring California’s citizens, since persons convicted of felonies in other states, in essence, have
no actual means to seek judicial restoration of their firearms rights here, or otherwise comparable
to the process of reduction under those mechanisms (including Pen. Code § 17(b)) described
above.

In essence, what you have is California saying that they will treat their restoration of rights as legitimate while that of other states as illegitimate for the purposes of firearms rights.

The plaintiffs are seeking both declaratory and injunctive relief under all counts as as applied to themselves and to others similarly situated. Of course, they are also seeking attorneys’ fees.

I’m not a judge nor a lawyer but if I had to hazzard a guess this will case will be decided on the Full Faith and Credit Clause and the Privileges and Immunities Clause. While it is obviously a denial of Second Amendment rights, the courts will go for the low-hanging fruit of Counts Two and Three.

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NC Wildlife Resources Commission Warns About CWD

December 22, 2018 by 1 Comment

Chronic Wasting Disease (CWD) has been discovered in whitetail deer in western Tennessee. This fatal neurological disease does not affect humans or livestock but it can infect deer and other cervids such as elk, moose, and caribou. Obviously, North Carolina does not have a population of moose or caribou but it does have a lot of whitetail deer and a growing population of reintroduced elk.

Below is the advisory from the North Carolina Wildlife Resources Commission along with the rules to for bringing in vension, deer hides, skulls, antlers, and mounts from other states. They also have a YouTube video for instructions on how to prep a carcass for importation if you are a do-it-yourself’er.

RALEIGH, N.C. (Dec. 17, 2018) — With the preliminary detection of Chronic Wasting Disease (CWD) in white-tailed deer in western Tennessee, the N.C. Wildlife Resources Commission reminds deer hunters of a new rule that prohibits the importation of whole deer carcasses and restricts the importation of specific carcass parts from anywhere outside of North Carolina.
The new rule, which was implemented for the 2018-19 deer hunting season, is an effort on the Commission’s part to prevent the spread of CWD into the state. CWD is a transmissible, always fatal, neurological disease that affects deer and other cervids such as elk, moose and reindeer/caribou.
The rule states that anyone transporting cervid carcass parts into North Carolina must follow processing and packaging regulations, which only allow the importation of:
  • Meat that has been boned out such that no pieces or fragments of bone remain;
  • Caped hides with no part of the skull or spinal column attached;
  • Antlers, antlers attached to cleaned skull plates, or cleaned skulls free from meat, or brain tissue;
  • Cleaned lower jawbone(s) with teeth or cleaned teeth; or
  • Finished taxidermy products and tanned hides.
Additionally, all carcass part(s) or container of cervid meat or carcass parts must be labeled or identified with the:
  • Name and address of individual importing carcass parts;
  • State, Canadian province, or foreign country of origin;
  • Date the cervid was killed; and
  • Hunter’s license number, permit number, or equivalent identification from the state, Canadian province, or foreign country of origin.
These new restrictions aim to prevent the infectious agent of CWD from contaminating new environments by way of disposal of carcass tissues, particularly those of the brain and spine, as CWD contaminants can persist in the soil for years.
On Friday, officials with the Tennessee Wildlife Resources Agency (TWRA) announced they were enacting their Chronic Wasting Disease Response Plan, following the preliminary positive detections of CWD in white-tailed deer in Hardeman and Fayette counties, which border the Mississippi state line. TWRA biologists are testing additional deer and are trying to contact the hunters who harvested the infected deer.
Out of concern for the serious effects CWD could have on North Carolina’s deer herd, the Commission developed a Chronic Wasting Disease Response Plan in 2002, with subsequent revisions over the years to respond to the disease’s ever-growing spread. The plan identifies and guides the agency’s initial short-term (approximately one year) efforts if CWD is detected in the state’s deer herd, or if CWD is detected in deer within 30 miles of its borders. Agency biologists also conduct statewide sampling of deer every year and attempt to sample all deer that show signs of the disease or die of unknown causes.
With Tennessee’s preliminary detection of CWD within its borders, two states bordering North Carolina will have CWD in their deer herds. In Virginia, Shenandoah and Frederick counties, which border West Virginia, have confirmed cases of CWD.
About Chronic Wasting Disease
Chronic Wasting Disease (CWD) is a transmissible spongiform encephalopathy (TSE) disease in deer, elk, moose and reindeer/caribou and is always fatal. The source of the disease is an abnormal prion (a form of protein) that collects in the animal’s brain cells. These brain cells eventually burst, leaving behind microscopic empty spaces in the brain matter that give it a “spongy” look. As this occurs, it often causes behavior changes such as decreased interactions with other animals, listlessness, lowering of the head, a blank facial expression, and walking in set patterns.
CWD has no known impacts to the health of humans or livestock. However, the Commission recommends people do NOT eat:
  • Meat from a deer that looks sick
  • Any of the following organs: brain, eyes, spinal cord, spleen, tonsils and lymph nodes*
  • Any meat from an animal that tests positive for the disease
*Normal field dressing coupled with boning out a carcass will remove most (if not all) of these body parts. Cutting away all fatty tissue will remove remaining lymph nodes.

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Sam Cooke Must Have Been Singing About This Guy

December 22, 2018 by

I came across a Tweet today from a rapper named Taleb Kweli Greene.

I’m kind of speechless over this abject ignorance of history. It made me wonder where he was edumacated.

According to his Wikipedia page, he started high school at Brooklyn Technical HS which requires an entrance exam. After being “academically dismissed”, he finished at Cheshire Academy which was founded in 1794. Cheshire boasts of a 6 to 1 student-teacher ration and class sizes of 12. The 10th oldest private school in the United States, Cheshire has a robust history department for a school its size.

All I can say is that Greene is either being intentionally obtuse or really is that dumb despite the best efforts of some of the best teachers that money could buy.

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She’s Right You Know

December 21, 2018 by 1 Comment

This is something that I thought that I’d ever write but Sen. Dianne Feinstein (D-CA) is correct. To be more precise, she is correct on one thing. That is that any ban on bump stocks is the business of Congress and not a regulatory agency.

In an op-ed published Wednesday in the Washington Post, she wrote:

Automatic weapons produced before 1986 are highly regulated, and the Bureau of Alcohol, Tobacco, Firearms and Explosives tracks them. Despite this, the agency has consistently stated that bump stocks could not be regulated under the current law. That was because they do not fit the legal definition of an automatic weapon under the National Firearms Act.

Automatic weapons are defined by their ability to fire a continuous number of rounds by holding down the trigger. Bump stocks and other accessories have made this definition largely obsolete, creating a loophole that circumvents Congress’s intent to bar civilians from achieving automatic rates of fire. That’s because the recoil of the stock “bumps” the finger against the trigger, allowing the weapon to achieve automatic fire. Because of this technicality, bump stocks have not run afoul of the law.

ATF initially concluded that it could not ban these devices through regulation in 2008. And after the 2012 shooting at a movie theater in Aurora, Colo., ATF further explained in a 2013 letter to Congress that it could not take unilateral action because “stocks of this type are not subject to the provisions of federal firearms statutes.” In addition, internal ATF documents made public through Freedom of Information Act requests by Giffords Law Center and Democracy Forward show that the agency had reiterated its lack of authority to ban bump stocks unilaterally and that it had approved similar devices as recently as April 2017 — under the Trump administration.

In March 2018, the Justice Department did an about-face, claiming that bump stocks do, in fact, fall under the legal definition of a machine gun and therefore can be banned through regulations. The administration’s position hinges on a dubious analysis claiming that bumping the trigger is not the same as pulling it.

Feinstein goes on to say that banning bump stocks by executive fiat opens it to legal challenge and that the Final Rule provides a roadmap for the “gun lobby” to do just that. This is not to say that Feinstein is pro-bump stock. Far from it. She wants them banned along with “trigger cranks” but says it should be done by Congress. Part of her rationale is that if it is done by Congress a future President can’t change his or her mind about bump stocks and ditch the ban. The other part of her rationale is the feeling that President Trump and the BATFE with the ban are intruding upon a Congressional prerogative.

The bump stock ban is already being challenged in District Court in Guedes et al v. BATFE et al. Gun Owners of America have also been promising a lawsuit which as of this afternoon still hasn’t been filed.

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This NPR Poll Shows Hope For America

December 21, 2018 by

52% of Americans say they are against the county becoming more politically correct. By contrast, only 1/3 want us to be more politically correct and more sensitive in what we say. This is according to a NPR/PBS News Hour/Marist poll conducted at the beginning of December.

There is a divide between those who want the country to be more politically correct and those of us that don’t.

There are huge partisan, racial and gender divides on the question of sensitivity. The only groups in which majorities said they were in favor of people being more sensitive were Democrats, adults under 30, African-Americans and small city/suburban women…


Majorities of whites, Latinos, Americans over 30 and small city/suburban men, though, said the opposite. Just 1 in 7 Republicans and a third of independents said they like the country becoming more politically correct and people being sensitive in their comments.


There’s also a big gender divide by place and education. Women who live in small cities or the suburbs say people need to be more sensitive, 52 percent vs. 37 percent. But just a quarter of men who live in the same place say so (27 to 57 percent), making for what have to be some very divided dinner tables.


White women with college degrees are split, but slightly more of them than not say people should be sensitive (46 to 43 percent). Nearly two-thirds of white men with college degrees, however, say the country is becoming too politically correct. (Roughly the same percentage of white men without a college degree feel the same way.)

 The story goes on to note that this poll should be a big warning to progressive Democrats because a majority of independents are against moving to be more politically correct. Given the propensity of Democrats to play to their base, this could be a big turn off in 2020.

You can listen to the story below:

So in conclusion, I’ll just say Merry Christmas and Happy Hanukkah, build the wall, and if my guns offend you, tough.

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Yes, Thank You Moms Demand Action In NC

December 20, 2018 by

Mike Bloomberg, billionaire, former mayor of New York City, erstwhile potential Democrat candidate for President, and funder of all things gun control put out this tweet yesterday evening.

Yes, thank you for your continued support of a Jim Crow era law, the pistol purchase permit system, that was intended to keep African-Americans, union members, and Republicans disarmed.

Yes, thank you for your support of red flag laws that turn Due Process on its head and that will get innocent people killed.

Yes, thank you for making our schools less safe by your continued opposition to any policy that would let trained teachers and administrators carry firearms to protect the students under their care.

Yes, thank you for supporting efforts to introduce even more government interference into private affairs by demanding universal background check.

Yes, thank you for all you do to make North Carolina a less safe place for ordinary, law abiding Tar Heels and more safe for criminals who, by definition, ignore the law.

 There is plenty more for which we can thank the North Carolina contingent of Moms Demand Action but saving lives isn’t one of them.

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Quote Of The Day

December 20, 2018 by

The quote of the day comes from a comment made by Breda on The Squirrel Report podcast, Episode 312. In a discussion about the new Democrat poster girl, Congresswoman-Elect Alexandria Ocasio-Cortez (D-NY) aka AOC who has been particularly gaffe-prone in her TV interviews, after noting that she had a degree in Economics, Breda said:

She really is a product of what colleges have become.

I think Breda is correct and this is especially true in the liberal arts. I went to a liberal arts college and got a well-rounded liberal arts education with majors in both political science and economics. I think the difference was that my professors came from another generation and were not merely regurgitating narrow findings from their dissertation research. They had lived lives outside of academia. Many were veterans. Some were conscientious objectors as befitted their Quaker faith. Some had been involved in the early civil rights movement. Some had even served time in prison for being conscientious objectors. Most were liberal but respected opposing views and welcomed the debate.

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Bumpstock Ban, Part II

December 19, 2018 by 1 Comment

The Bureau of Alcohol, Tobacco, Firearms, and Explosives in response to the announcement by Acting Attorney General Matthew Whitaker that the final rule banning bump fire stocks has more detail as well as “instructions” for owners of these firearms accessories. You have to wonder if the release of this final rule was delayed until after Attorney General Jeff Sessions was fired and a more compliant acting AG was in place.

First, the final 157 page rule can be found here. It will officially become final when it is published in the Federal Register. The rule goes into effect 90 days from when it is published in the Federal Register.

Second, the BATFE has published instructions on how to destroy your bump fire stock. They also have links to diagrams for a number of named bump fire stocks which are below.

Third, the other opinion is turn in your bump fire stock at your local BATFE office. They “advise” to call ahead. Also, while they don’t mention it, make sure you have your dog in a safe, undisclosed location.

Fourth, and this is not mentioned by BATFE, you can support the lawsuits that have or will be filed seeking to have this overturned. I will cover some of them in the next post.

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Bumpstock Ban, Part I

December 19, 2018 by 1 Comment

When I wrote a blog post yesterday entitled BOHICA I didn’t think it would come first from what ostensibly is our own side. I was wrong. Acting Attorney General Matthew Whitaker announced today that the final rule declaring that bump fire stocks are “machine guns”. Below is his announcement:

Today, Acting Attorney General Matthew Whitaker announced that the Department of Justice has amended the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), clarifying that bump stocks fall within the definition of “machinegun” under federal law, as such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.

Acting Attorney General Whitaker made the following statement:

“President Donald Trump is a law and order president, who has signed into law millions of dollars in funding for law enforcement officers in our schools, and under his strong leadership, the Department of Justice has prosecuted more gun criminals than ever before as we target violent criminals. We are faithfully following President Trump’s leadership by making clear that bump stocks, which turn semiautomatics into machine guns, are illegal, and we will continue to take illegal guns off of our streets.”

On February 20, 2018, President Trump issued a memorandum instructing the Attorney General “to dedicate all available resources to… propose for notice and comment a rule banning all devices that turn legal weapons into machineguns.” In response to that direction the Department reviewed more than 186,000 public comments and made the decision to make clear that the term “machinegun” as used in the National Firearms Act (NFA), as amended, and Gun Control Act (GCA), as amended, includes all bump-stock-type devices that harness recoil energy to facilitate the continuous operation of a semiautomatic firearm after a single pull of the trigger.

This final rule amends the regulatory definition of “machinegun” in Title 27, Code of Federal Regulations (CFR), sections 447.11, 478.11, and 479.11. The final rule amends the regulatory text by adding the following language: “The term ‘machine gun’ includes bump-stock devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.” Furthermore, the final rule defines “automatically” and “single function of the trigger” as those terms are used in the statutory definition of machinegun. Specifically,

  • “automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as a result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through the single function of the trigger;
  • “single function of the trigger” means single pull of the trigger and analogous motions.


Because the final rule clarifies that bump-stock-type devices are machineguns, the devices fall within the purview of the NFA and are subject to the restrictions of 18 U.S.C. 922(o). As a result, persons in possession of bump-stock-type devices must divest themselves of the devices before the effective date of the final rule. A current possessor may destroy the device or abandon it at the nearest ATF office, but no compensation will be provided for the device. Any method of destruction must render the device incapable of being readily restored to its intended function.

I don’t own a bumpstock nor do I know anyone personally that does. However, the danger in this rule is the precedent it sets. This can and probably will be expanded in the future to include any item that accelerates or makes a semi-automatic firearm easier to shoot. Things like enhanced triggers, JP Enterprise springs, or even a trigger job. This final rule perverts the black letter law of the National Firearms Act as well as the Congressional intent.

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BOHICA

December 17, 2018 by 1 Comment

I posted the gun control industry’s wish list earlier this morning. If you don’t think they have a serious chance of getting much of it through the House, you are living in a dreamland. Read Nancy Pelosi’s statement from Friday marking the sixth anniversary of the murders in Newtown, Connecticut.

“For six years, Americans across the country have taken time to remember the 26 beautiful souls that were murdered in an act of unfathomable horror and heartbreak at Sandy Hook Elementary School. While the pain and grief of that tragic day remain, our determination to end the daily horror of gun violence continues to strengthen.


“Since that unspeakable tragedy, too many families in too many places have been impacted by the deadly epidemic of gun violence. In shattered communities across the country, the nation has had to console family members, comfort survivors and honor victims. Yet, at every opportunity Republicans refuse to lift a finger to stop the bloodshed. Enough is enough.


“Countless families, survivors and young people around the country have courageously turned their grief into action. Inspired by their strength and tireless advocacy, the new Democratic Majority will act boldly and decisively to ensure that no other family must endure the pain caused by gun violence.”

 The gun control lobby was supportive of Pelosi becoming Speaker and they are expecting their payoff. I have no doubt that she will attempt to come through. As Politico reports, she even has some Republican allies on gun control like Rep. Peter King (R-NY). Moreover, the House Judiciary Committee will be headed by known gun control advocate Jerold Nadler (D-NY) and there will be a House Gun Violence Task Force headed by Rep. Mike Thompson (D-CA).

What does all of this mean?

It means that we need to be on Defcon 1 for any and all gun control bills being introduced in January 2019 and those of us who have Republican senators need to be talking to them now. Take Giffords’ wish list, make comments on it, and email or fax it to those senators. Explain that red flag laws aka “Extreme Violence Protection Orders” not only violate the Constitution but get innocent people killed. Given how the GOP bows and scrapes to cops emphasize that some of those killed trying to enforce such a law will be cops. I think you can go through that list and come up with more reasons that none of them need be passed.