Month: July 2011

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ISRA Response To 7th Circuit Win On Ezell

July 7, 2011 by

The Illinois State Rifle Association is obviously pleased with the decision by the 7th Circuit Court of Appeals that mandates a preliminary injunction against the City of Chicago’s previous ban on shooting ranges within the city limits. As one of the organizational plaintiffs in Ezell v. Chicago, they not only got the preliminary injunction but their status as an organizational plaintff was reaffirmed by Judge Syke’s opinion.

The official response from ISRA and their in-house counsel Victor Quilici is below.

Firearm Law & Commentary
by Victor D. Quilici, ISRA Attorney

7TH CIRCUIT COURT OF APPEALS GRANTS PRELIMINARY INJUNCTION IN EZELL V. CITY OF CHICAGO GUN RANGE CASE

July 6, 2011

One day after the Supreme Court decided McDonald vs. City of Chicago, the City explored a legislative response to the decision and shortly thereafter the ordinance banning handguns was repealed and the City passed its now infamous “Responsible Gun Owners Ordinance.”

The new ordinance contained a sweeping array of firearm restrictions, including a ban on firing ranges within the City, although the ordinance contained a provision requiring aspiring gun owners to complete one hour of range training as a prerequisite to acquiring a Chicago Firearm Permit which is mandated for lawful gun ownership in the City. Immediately, ISRA was joined by three Chicago residents, the Second Amendment foundation, and Action Target Designs, and a lawsuit was filed in the U.S. District Court for the Northern District of Illinois seeking a temporary restraining order (TRO), a preliminary injunction, and a permanent injunction against the City’s firing range ban.. As the appellate court noted, the lawsuit alleged that the range-ban “impermissibly burdens the core Second Amendment right to possess firearms in the home for self-defense because it prohibits, everywhere in the City, the means of satisfying a condition the City imposes for lawful firearm possession.”

The District Court judge denied the relief sought by the Plaintiffs, and on appeal the appellate court tribunal found that the lower court’s acceptance of the City’s “confused approach to the case” led the District Court to err in failing to recognize “ the scope of the Second Amendment right as recognized in Heller and applied to the states in McDonald, and the standard of review of laws alleged to infringe Second Amendment rights.” The appellate court also noted that the City failed to produce any empirical evidence of any kind, “and rested its entire defense of the range ban on speculation about accidents and theft.”

The appeals court concluded by noting that at this stage of the proceedings “the firing range ban is wholly out of proportion to the public interests the City claims it serves.” Thus, the court determined the plaintiffs showed irreparable harm, no adequate remedy at law, and a strong likelihood of success—all prerequisites to obtaining injunctive relief. The District Court’s decision was reversed and the case remanded (returned) to the lower court with instructions to enter a preliminary injunction consistent with its decision. A First Amendment violation alleged in the lawsuit was not addressed and considered surplusage based on the court’s findings and its decision based on the Plaintiffs’ Second Amendment claims.

Illinois State Rifle Association members and its friends should keep in mind that this is only round one of a continued fight to protect our fundamental rights to ownership and possession of firearms for self-defense, and other lawful purposes, as our United States Supreme Court clearly pronounced in its ground-breaking decisions in Heller, and McDonald. We owe a big round of applause and “thanks” to the attorneys involved— Alan Gura and David Sigale.

Victor D. Quilici
ISRA Counsel

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Twitter Has Its Uses

July 7, 2011 by

With the White House all atwitter over Twitter yesterday, House Oversight Committee Chairman Darrell Issa took advantage of it. According to The Hill, Issa used Twitter to deliver a letter to White House Press Secretary Jay Carney.

The tweet was a response to a question about the letter asked in the White House press briefing on Tuesday.

Carney told reporters at Tuesday’s briefing that he had not seen the letter. “I’m not aware of it,” he said.

The letter addressed to Attorney General Eric Holder is signed by Rep. Darrell Issa (R-Calif.), the chairman of the committee, and Sen. Chuck Grassley (R-Iowa). It details their concerns following the testimony of Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) acting director Kenneth Melson regarding the ATF operation “Fast and Furious.”

A picture of the tweet in question is below.

It is nice for once to see a Congressman using Twitter for something other than Tweeting pictures of his privates!

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An East Coast Project Gunwalker?

July 7, 2011 by 7 Comments

So far all the attention on the ATF and gunwalking has been confined to the Southwest with the Phoenix Field Division at the epicenter of it all. However, David Codrea and Mike Vanderboegh are reporting tonight that the Tampa Field Division may have been involved in gunwalking to Honduras. This project may have been part of “Operation Castaway” which dealt with firearms trafficking in central Florida.

SAC (Virginia) O’Brien was previously the Special Agent in Charge of the Phoenix Field Division, was later promoted to the Deputy Assistant Director of ATF, but then stepped down to the position in Tampa. Whether the allegations of our source refer to the on-going Operation Castaway remains at this hour unclear, but our source is certain that O’Brien has allowed the “walking” of straw-purchased firearms to Honduras using the same failed strategy as the Phoenix Field Division’s Operation Fast and Furious. That Operation Castaway involved arms smuggling to Honduras is also certain.

“This is confirmed as accurate,” the correspondence continued. “There are emails in existence where O’Brien has advised those involved that Tampa does not have to report their walked guns because Tampa FD is not a part of Southwest Border or Project Gunrunner.”

“From a first person source she is shitting herself trying to cover it up,” the report stated.

David and Mike have published identical reports on both the National Gun Rights Examiner page and Sipsey Street Irregulars.

If this source proves credible and this report is accurate, the Bureau of Alcohol, Tobacco, Firearms and Explosives will be lucky to survive an additional scandal involving gunwalking.

A news release on Operation Castaway from 2010 can be found here.

UPDATE: Why Honduras? Mike Vanderboegh has a post that explains the expansion of the Mexican drug cartels to this Central American country and the role of the military there in supplying arms.

As to more information on SAC Virginia O’Brien, she has been under the radar for the most part if a Google search is any indication. She had been the SAC of the Phoenix FD prior to William Newell and had been Assistant Deputy Director of ATF under Acting Director Michael Sullivan.

I did find mention of her in regards to former Deputy Director and now New York County Sheriff Edgar Domenach for giving him a mediocre performance evaluation. The only other real mentions of her come in the official press releases sent out by the Tampa Field Division. Unlike Andrew Traver, she doesn’t seem to be one that seeks out the press for personal publicity.

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SAF On Their Win In Chicago

July 6, 2011 by 1 Comment

The Second Amendment Foundation issued this release about their win today in the 7th Circuit Court of Appeals. The decision by Judge Sykes also said that organizational plaintiffs like SAF had standing to sue on behalf of their members.

BELLEVUE, WA – In a 3-0 ruling issued this morning, the U.S. Court of Appeals for the Seventh Circuit has reversed a lower court ruling and ordered that court to issue a preliminary injunction against the City of Chicago on behalf of the Second Amendment Foundation that prevents the city from banning gun ranges inside city limits.

Joining SAF in the original lawsuit were Action Target, Inc., the Illinois State Rifle Association and three Chicago residents, Rhonda Ezell, William Hespen and Joseph Brown. Their attempts to obtain a temporary restraining order against the gun range ban were twice rejected by the district court. The Appeals Court ruling is severely critical of the lower court’s ruling.

“This is a significant victory that could have strong implications well beyond the Chicago city limits,” said SAF Executive Vice President Alan M. Gottlieb. “The court is making it clear that cities cannot adopt firearms ordinances that are so deliberately restrictive that they make it impossible for citizens to exercise their rights under the Second Amendment.”

Immediately after last year’s landmark SAF victory in McDonald v. City of Chicago, the city adopted a handgun ordinance that required special permits and mandated range training, but banned gun ranges inside city limits. The city argued that citizens could fulfill their training requirement by visiting a suburban range. In today’s ruling, written by Judge Diane S. Sykes, the Appeals Court observed, “It’s hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free-speech or religious-liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context.” In a concurring opinion, Judge Ilana Diamond Rovner noted, “…the city may not condition gun ownership for self-defense in the home on a prerequisite that the City renders impossible to fulfill within the city limits.”

“What the city tried to do, as the court ruling noted, was ‘thumb its municipal nose at the Supreme Court’,” Gottlieb stated. “City governments, no matter how much they abhor the fundamental right of citizens to keep and bear arms, cannot use clever legal devices to prevent the exercise of that right. As Judge Rovner noted, ‘the city must come to terms with that reality’.”

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Too Little, Too Late

July 6, 2011 by 4 Comments

Mayor Rahm Emanuel thought he could beat the 7th Circuit Court of Appeals to the punch by racing through an amendment to Chicago’s gun laws that would allow shooting ranges in the city under certain, onerous conditions. (To see those conditions either read the full bill or go to Sebastian’s summary here.)

He lost.

The 7th Circuit Court of Appeals issued their decision today on the appeal of Judge Kendell’s denial of a preliminary injunction to the plaintiffs in Ezell v. Chicago. It is a 59 page decision written by Judge Sykes with which Judge Rovner concurred in the results. In other words, it was 3-0 against the City of Chicago but for different reasons. The relevant passage in the decision is this:

The plaintiffs have established their entitlement to a preliminary injunction based on their Second Amendment claim, so we need not address the alternative argument that range training is protected expression under the First Amendment. Given the strong likelihood of success on the former claim, the latter claim seems like surplusage.

For the foregoing reasons, we REVERSE the district court’s order denying the plaintiffs’ motion for a preliminary injunction and REMAND with instructions to enter a preliminary injunction consistent with this opinion.

Judge Sykes in her decision said specified certain conditions on the preliminary injunction. They are:

The plaintiffs asked the district court to enjoin the enforcement of Chicago Municipal Code § 8‐20‐280—the prohibition No. 10‐3525 49 on “[s]hooting galleries, firearm ranges, or any other place where firearms are discharged.” They are entitled to a preliminary injunction to that effect. To be effective, however, the injunction must also prevent the City from enforcing other provisions of the Ordinance that operate indirectly to prohibit range training. The plaintiffs have identified several provisions of the Ordinance that implicate activities integral to range training: CHI. MUN. CODE §§ 8‐20‐020 (prohibiting the possession of handguns outside the home), 8‐20‐030 (prohibiting the possession of long guns outside the home or business), 8‐20‐080 (prohibiting the possession of ammunition without a corresponding permit and registration certificate), 8‐20‐100 (prohibiting the transfer of firearms and ammunition except through inheritance), 8‐24‐010 (prohibiting the discharge of firearms except for self‐defense, defense of another, or hunting). To the extent that these provisions prohibit law‐abiding, responsible citizens from using a firing range in the city, the preliminary injunction should include them as well. Similarly, the injunction should prohibit the City from using its zoning code to exclude firing ranges from locating anywhere in the city.

Finally, because range training is required for the issuance of a Chicago Firearm Permit, a registration certificate, and ultimately, for lawful possession of any firearm, see CHI. MUN. CODE §§ 8‐20‐110(a), 8‐20‐140(a)‐(b), the firing‐range ban implicates not only the right to train at a range but also the core Second Amendment right to possess firearms for self‐defense. Accordingly, the preliminary injunction should include sections 8‐20‐110(a) and 8‐20‐140(a) to the extent that those provisions operate to prohibit otherwise eligible persons from “carry[ing] or possess[ing] a firearm” at a range without a Permit or registration certificate while they are trying to complete the range‐training prerequisite for lawful firearm possession.

Despite Rahm’s 11th hour move, today was a good day for the Second Amendment in Chicago.

UPDATE: Josh Blackman has an “instant analysis” of the 7th Circuit’s decision in Ezell here. Dave Hardy calls the decision a major win and points out some of the salient points of the decision.

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The Chicago Range Ordinance

July 6, 2011 by

I have embedded below the Chicago Range Ordinance that will be presented to the Chicago City Council this morning by Mayor Rahm Emanuel. It was passed unanimously -though grudgingly – by the Committee on Public Safety yesterday. Newspaper articles in both the Chicago Tribune and the Chicago Sun-Times have referred to portions of the ordinance and some of the restrictions. Rather than going by what a reporter on deadline says about the bill, I think it is better to have the entire ordinance out there for all to see in its original form.

The move to introduce, pass, and implement this ordinance is a rush job as the City of Chicago freely admits. Jeff Levine of the City of Chicago’s Law Department had this to say:

But Levine said the 7th Circuit Court of Appeals could rule on the lawsuits at any time, making it important for the city to get its own firing range rules on the books. The city hopes the appellate judges will opt not to intervene if Chicago has a firing range law in place, Levine said.

As Sebastian noted last night, Alan Gura does not think this ordinance should moot Ezell v. Chicago.

Chicago Range Ordinance 07-11
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Do You Think They Are Trying To Discourage Carry Permits?

July 6, 2011 by 7 Comments

Yesterday evening I posted about the CalGuns Foundation’s win in forcing San Francisco County Sheriff Michael Hennessey to obey the law and adopt a formal policy on the issuance of carry permits. Having read through the policy two things become glaringly obvious. First, it is expensive. The cost for the permit, the fingerprinting, the psychological test, and the firearms testing and qualification test is $2,607 for first time applicants and there is no refund of any of it if they deny you anywhere in the process.

The second thing is that it is incredibly restrictive as to handgun and caliber. It goes well beyond the California Roster of Handguns. You are restricted to four calibers and to pistols and revolvers from certain manufacturers. If you want to use a Colt 1911, forget it. 1911’s and all single-action semiautomatic pistols are prohibited. If you think you might like a pocket pistol like the Ruger LCP in .380, forget it as you are limited to pistols in 9mm, .40 S&W, and .45 ACP.

If you think you might want to use the S&W Model 29 made famous by the fictional SFPD Inspector Harry Callahan in the Dirty Harry movies, you can forget that as well. Only revolvers in .38 Special are allowed. Moreover, you are only allowed to carry the weapon with which you qualified.

As to the qualification test, it appears to be a standard 50-shot qualification test as used by many law enforcement agencies. It probably isn’t the most relevant test for a concealed carry holder but at least it is an objective test that seems to be fairly standard. I do wonder how many of the SF Sheriff’s Deputies pass the test on their first try in their annual re-qualifications.

The policy as adopted is below.

San Francisco Carry License Policy
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CalGuns Forces San Francisco Sheriff To Adopt CCW Policy

July 6, 2011 by 5 Comments

The CalGuns Foundation sent out this release this evening regarding their victory in forcing the Sheriff of San Francisco County to comply with California law regarding concealed carry permits. Congratulations to CalGuns for getting San Francisco to obey the law. When I attended the Gun Rights Policy Conference in San Francisco, I was shocked to find out that there were only eight CCW permits issued for all of San Francisco County. While this number may have changed some, it is still ridiculously small for a city and county of the size of San Francisco.

San Carlos, CA (Tuesday, July 5, 2011) – After a litigation threat from the Calguns Foundation, San Francisco Sheriff Michael Hennessey has adopted a policy for firearm carry license (“CCW”) applications.

As part of its ongoing Carry License Compliance and Sunshine Initiative, The Calguns Foundation sent San Francisco County Sheriff Michael Hennessey a letter demanding that he immediately bring the firearm carry license application acceptance, processing, and evaluation policies of his department into compliance with California law.

“As a direct result of our letter, San Franciscans now have a path to apply for a permit to exercise their fundamental right of self defense,” notes Gene Hoffman, Chairman of CGF. “We look forward to assisting San Francisco residents to that end by publishing on our website copies of approved ‘good cause’ statements, the Sheriff’s policy, DOJ standard application, a ‘CCW Application Flowchart’, and other valuable tools and information.”

The new policy is being reviewed for requirements and practices that violate the law. “While we’re pleased that Sheriff Hennessey chose to produce a policy rather than spend taxpayers’ money to defend an indefensible position, it’s perplexing that he created such an onerous carry license program that practically begs for further scrutiny and possibly litigation,” said Brandon Combs, a director of CGF and leader of the Sunshine Initiative.

Calguns Foundation provided a copy of their Model Carry License Policy, downloadable here, to San Francisco Sheriff Hennessey and the San Francisco Sheriff’s Office. The CGF Model Policy reflects the process and procedures found in state law and comports with constitutional principles. San Francisco, however, chose to largely ignore CGF’s offer of assistance and create its own policy.

“We’re taking a very hard look at policies that burden the carry license application process with unlawful or unconstitutional provisions,” stated Gene Hoffman. “We expect that some sheriffs will dig in their heels and refuse to comply with the law. Those sheriffs should expect to be taken to court.”

A copy of the San Francisco carry license policy is available for download here. More information on Calguns Foundation’s Carry License Compliance and Sunshine Initiative can be found at www.gotcarry.org. For more information on other Second Amendment-related litigation and educational efforts, please visit www.calgunsfoundation.org.

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Mexicans Demanding Extradition Of ATF Officials Over Project Gunwalker

July 5, 2011 by 2 Comments

Something like this should put some fear into the heart of Acting ATF Director Kenneth Melson. Maybe he can cut a deal where if he cooperates with Chuck Grassley and Darrell Issa he won’t be extradited.

From the Fox News story by William LaJeunesse:

“I obviously feel violated. I feel my country’s sovereignty was violated,” Mexico Sen. Rene Arce Islas told Fox News. “They should be tried in the United States and the Mexican government should also demand that they also be tried in Mexico since the incidents took place here. There should be trials in both places.”

Arce is chairman of Mexico’s Commission for National Security, a congressional panel similar to the U.S. Senate Judiciary Committee.

His point of view is shared by many Mexican politicians, including Sen. Santiago Creel, a former Interior Minister and the likely presidential nominee next year of the National Action Party to succeed Felipe Calderone, also of PAN.

“I think we should at least try to prove that what happened in Mexico must be sanctioned by Mexican laws and under our sovereignty,” Creel told us. “What can’t happen is that this now ends on an administrative sanction, or a resignation. No, no, no. Human lives were lost here. A decision was made to carry out an operation that brought very high risk to human lives.”