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Updates on Second Amendment Arms et al v. Chicago et al

December 9, 2010 by

Second Amendment Arms v. Chicago was the second case filed challenging the new Chicago Gun Law. This case since it wasn’t brought by either the National Rifle Association or the Second Amendment Foundation has generated a lot less scrutiny and news. The plaintiffs’ attorney, Walter Maksym, is best known for representing Drew Peterson and not for his expertise in Second Amendment law.

An amended complaint was filed at the beginning of October which added the Illinois gun rights group, ICarry, as an organizational plaintiff and Shaun Kranish as an individual plaintiff.

On November 24th, the City of Chicago filed a motion to dismiss this case on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) grounds. The city argues that the complaint and the plaintiff’s First Claim for Relief fail to state a claim. They also challenge the standing of Second Amendment Arms and ICarry as they argue that “the Second Amendment only confers an individual right, and they are not individuals.” Chicago also is challenging the standing of the individual plaintiffs for failure to identify an injury under the Ordinance. Finally, it asks that among other things that Mayor Daley, Police Superintendent Wies, Miguel Del Valle, and Corporation Counsel Mara Georges be dismissed as defendants.

A joint status report was filed on Monday and a status hearing was held on Wednesday. The status report indicated the principal legal issues as a violation of the 1st, 2nd, 4th, and 14th Amendments to the U.S. Constitution as well as other violations of the Illinois Constitution. The factual issues are up in the air due to the lack of discovery and because Chicago has moved to dismiss the case. Finally no settlement discussions have been held.

In the status hearing yesterday, Judge Robert Dow advised that he is taking Chicago’s Motion to Dismiss under advisement, that the plaintiffs have until January 21, 2011 to file a 20-page response to dismissal motion, and that Chicago has until February 16th to file their reply to the response. He also said that he will rule on the Motion to Dismiss by mail.

Of the three challenges in Federal court to the new Chicago Gun Law, this is probably the weakest legally and, in my opinion, should never have been filed. As Alan Gura has noted many times, there is a proper strategic way to go about Second Amendment litigation and then there are all the other ways. Unfortunately, both ways can set precedent and we are stuck with it. If Second Amendment jurisprudence was settled law, anyone could do it. It isn’t settled law and not everyone should be doing it.

So it is with this case. The complaint was not tightly written, errors were made in procedure by the plaintiffs’ attorney, and even the service of the original complaint took months. Robert Zieman will never get compensated for the firearms taken under the old law and I sincerely doubt that this case will ever be allowed to granted class action status. The best thing that could happen – which probably won’t – is that this case be voluntarily withdrawn. I hate to sound so negative but I don’t think this is the case to pin any hope on.

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Updates on Benson et al v. City of Chicago et al

December 9, 2010 by

The attorneys for both Benson and the City of Chicago have agreed to continue discovery through March 31, 2011. Discovery had been scheduled to end on January 7, 2011. They filed an Agreed Motion to Extend Fact Discovery this past Friday. There has been no ruling by Judge Ronald Guzman yet on whether to accept this Agreed Motion.

This passage seems to indicate some legal wrangling over the scope of the discovery:

Notwithstanding the parties’ respective timely responses to discovery and production of documents, the parties have, in response to various discovery requests, disputed the permissible scope of discovery in this case. For example, the parties have disagreed about the permissible scope of document requests and whether certain depositions are appropriate. Nonetheless, for over a month, the parties have engaged, and continue to engage, in good-faith negotiations to come to agreement on these issues—or at least to narrow the ultimate scope of disagreement. Despite these efforts, complete agreement does not appear likely and thus the parties anticipate that some of these issues will soon be brought before the Court in the form of motions to compel or to quash. But the parties continue to work to refine and narrow the ultimate issues that will be litigated.

The more important news contained within this motion is that the plaintiffs plan to file a Second Amended Complaint which will probably add another plaintiff, add another count to the complaint, and some more factual detail.

The bigger news in this case is that Judge Guzman has denied the motions by the City of Chicago to reassign both Ezell et al v. Chicago and Second Amendment Arms et al v. Chicago to his court. Ezell is the case brought by the Second Amendment Foundation challenging the ban on gun ranges and Second Amendment Arms is an independent case brought by attorney Walter Maksym.

Judge Guzman gave the following reason for denying the motions:

Plaintiffs seek to have Ezell v. City of Chicago, 10 C 5135, pending before Judge Kendall, and Second Amendment Arms v. City of Chicago, 10 C 4257, pending before Judge Dow, reassigned to this Court. The case before Judge Kendall is in a different procedural posture than this one. She has already held a hearing on and denied plaintiffs’ motion for a preliminary injunction, a ruling that is currently pending before the Seventh Circuit. The case before Judge Dow is broader in scope than this one. The plaintiffs in that case seek restitution, damages and a writ of mandamus, claims not asserted here. Given the substantial differences between those cases and this one, reassignment is not appropriate. See Local Rule 40.4.

I should point out that it was actually the defendants and not the plaintiffs who sought to have the cases transferred to Judge Guzman. The plaintiffs in all the cases had vigorously sought not to have the cases transferred but probably none so strongly as Alan Gura in the Ezell case.

This last part is very good news.

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No Surprise Here – IACP Endorses Traver To Head ATF

December 8, 2010 by

In what should come as no surprise to anyone, the International Association of Chiefs of Police announced their endorsement of Andrew Traver to head the Bureau of Alcohol, Tobacco, Firearms, and Explosives. The announcement was made on Thursday, December 2nd.

Given his membership in the organization and his past involvement with their gun control efforts and conferences, you would have expected them to announce this over two weeks ago when Traver was nominated to fill the position. It makes you wonder if they were waiting for the furor to die down so they could sneak this in under the radar.

Their press release of the endorsement said:

Police Chiefs Announce Support for Traver Nomination
IACP calls Andrew Traver Ideal Choice to Lead ATF

Alexandria, VA: The International Association of Chiefs of Police (IACP) today announced its strong support for the nomination of Andrew Traver to serve as the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Stated IACP President Mark Marshall, Chief of the Smithfield, VA Police Department, “A career law enforcement professional like Andrew Traver is an ideal selection to lead ATF. Throughout his career, Special Agent Traver has demonstrated an unyielding commitment to protecting public safety. His 23 years of experience at ATF have provided him the opportunity to work with law enforcement agencies throughout the United States. He has gained a unique understanding of the challenges and complexities they face in combating firearms violence, gang crime and other threats to our communities.”

Continued Marshall, “The IACP believes that Special Agent Traver’s years of experience, his expertise and his record of success are evidence of his outstanding qualifications to serve as the next Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. The IACP urges the Judiciary Committee and the members of the United States Senate to confirm Special Agent Traver’s nomination in a timely fashion.”

Founded in 1893, the IACP is world’s oldest and largest association of law enforcement executives with more than 20,000 members in over 100 countries.

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Free Brian Aitken

December 8, 2010 by 4 Comments

Brian Aitken was a finance student at NYU, an economic scholar at the Foundation of Economic Education, a father, an entrepreneur, mountain climber, and so many other things. One of the things that he was not, however, was a criminal. No one, not the judge, jury, or prosecutor disputes the fact that there were no victims in Brian Aitken’s case. Regardless, he’s currently serving 7 years in state prison for a crime that thousands of people maintain he didn’t commit.

On January 2, 2009 Brian was arrested for illegal possession of firearms while moving from one residence from another. All of the firearms were legally owned—Brian passed three different FBI background checks to purchase and had even cleared an FBI screening for employment as a data researcher handling confidential information for a banking security software firm. His integrity, character, and right to own was not in question…so what was?

New Jersey statutes make it illegal for anyone without a concealed carry permit to possess a firearm even if it’s otherwise lawfully owned. The only way to lawfully possess firearms in New Jersey is through exemptions to the law like driving to and from a shooting range or moving residences. However, as they are exemptions from the law they must be raised during trial therefore removing the presumption of innocence for the charge of possession.

Brian had just brought his firearms from CO to NJ a week prior to his arrest–in fact, TSA cleared him to fly with them….the same TSA that terrifies five year olds girls and breaks a bladder cancer survivor’s urostomy bag. He had just moved back to an apartment in Hoboken that he had moved out of a month earlier and closed on the sale of his Colorado home 11 days after his arrest.

Several witnesses, including the arresting officer, testified that not only did Brian have multiple residences but that his car was packed with his personal belongings–so much so that it took the police 2 hours and 39 minutes before they found Brian’s guns locked and unloaded in the trunk of his car, exactly as NJ law dictates. Brian knew this because only days earlier he had found out through the NJ state police how to legally transport his firearms in NJ. The officers, believing Brian had done nothing wrong, then offered to leave the firearms at his parents’ house, but when they wouldn’t fit in his father’s safe the supervising officer decided to arrest him instead.

During the next 18 months the prosecutor approached Brian and his attorney with plea offer after plea offer. If Brian pled guilty he’d spend one mandatory year in prison and spend the rest of his life a convicted felon for a crime he didn’t commit….otherwise the prosecutor was seeking the maximum sentence of 10 years. Brian, knowing not only that he had done nothing wrong but knowing that the law didn’t exist to punish innocent people, chose to take his case in front of the jury.

During the trial it became clear to everyone in the courtroom that Brian fit the exemptions of the law for moving between residences. However, the judge withheld the law from the jury, thereby ensuring a guilty verdict. Regardless, the jury returned from deliberation three times specifically requesting to be read the exemptions of the law. One can only assume that this was so they could find Brian not guilty. The judge and the prosecutor made it clear that they had no intention of allowing Brian to walk out an innocent man. They were more interested in a guilty verdict than truth and justice.

Six days later Governor Christie decided not to reappoint Judge James Morley for his misconduct in 2 other cases where Judge Morley sympathized with an off duty police officer who molested farm animals.

Brian was sentenced to 7 years in state prison even though there was no victim, no violence, and no crime. He was sentenced by Judge Haas, whose only knowledge of the case was provided by the prosecutor. Judge Haas did not preside over the case or have access to transcripts of the trial.

Gun owners and non-gun owners alike have banded together, not because this is an obvious Second Amendment issue, but because the judge so blatantly and with complete immunity withheld Brian’s right to a fair trial.

The description of the case comes from www.briandaitken.com.

Evan Nappen, a New Jersey attorney who is in the forefront of gun cases in that state, has this summary of the case.

The Governor of New Jersey, Chris Christie, is being asked to commute the sentence or to pardon Brian Aitken. If you want to let him know your feelings, go here.

Christie is being bandied about as a potential 2012 candidate for either President or Vice-President. However, he has not shown himself to be on the same wavelength as the majority of both conservatives and Americans with regard to gun rights. My feeling is that if he wants to have any political career beyond the confines of the Garden State he damn well better come through with either a commutation or pardon – and soon – on Brian Aitken or he can kiss any national ambitions good-bye. And frankly, it ought to be a pardon as Brian Aitken did nothing wrong and a commutation doesn’t restore his constitutional rights.

UPDATE: Bob Owens has an excellent post on PajamasMedia about Chris Christie and the movement to free Brian Aitken. Christie, as Bob notes, has not been friendly towards the Second Amendment over his career. This will need to change if he ever has any national aspirations.

One thing people can do to get the message across to Christie is “like” his fan page and post messages in support of Brian Aitken. Alternatively, you can contact Christie directly at the Governor’s Office here.

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How Pathetic

December 8, 2010 by

Josh Horwitz has just one-upped Paul Helmke on the pathetic scale.

Horwitz is the Executive Director of the Coalition to Stop Gun Violence. In a post today at the Huffington Post entitled NRA’s Latest Poster Boy Sounds Like School Shooter, he insinuates that James D’Cruz is another Columbine killer in waiting. He compares quotes on James’ Facebook page to the stuff said by Dylan Klebold and Eric Harris as well as the Virginia Tech killer Seung-Hui Cho and the Pearl, Mississippi school shooter. He then concludes:

The best case scenario here is that D’Cruz is strikingly immature and incapable of handling the serious responsibilities that come with gun ownership. The worst case scenario is that he’s a ticking time bomb in need of psychiatric care. In either case, he’s a poster boy for why we should prevent handgun sales to those under 21 years of age.

Of course it is utter bullshit and could well be considered an actionable case of defamation.

One could very well rewrite Horwitz’s quote to read:

The best case scenario here is that Horwitiz is strikingly immature and incapable of the rational thought needed for serious policy discussion. The worst case is that he’s a ticking time bomb in need of psychiatric care. In either case, he and Paul Helmke are the poster children for the flailing gun control movement which can be seen in their compulsion to demonize an 18 year-old college freshman.

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A Day That Will Live In Infamy

December 7, 2010 by

On the 69th anniversary of the attack on Pearl Harbor, let us remember those that died in the sneak attack.

We should also remember those veterans that survived the attack on it as well as those who enlisted in response to the attack. My Uncle John Sheridan was a freshman in college. He and a bunch of his friends skipped class on December 8, 1941 and joined the Navy. While most of his war was spent stateside, he finished WWII aboard the USS Bennington CV-20 as an ETM 3rd Class.

UPDATE: The Boston Globe has an excellent series of pictures from that day.

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Best Headline Award

December 7, 2010 by

The best headline award for a review of AR-15 magazines goes to Rob Curtis and the GearScout blog at MilitaryTimes.com.

In a review of the new Surefire ultra-high capacity magazines, the blog post was titled Surefire Introduces the John Holmes of rifle magazines.

The new magazines are 60 and 100 round magazines and look huge…kinda like the, ah, equipment of the late porn star John Holmes.

 
And the review isn’t bad, either.

 

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The Newest Righthaven Clients

December 6, 2010 by

Clayton Cramer reports that MediaNews Group is the newest client for the copyright trolls at Righthaven LLC. I guess if the holding company that owns you is in bankruptcy you’ll do darn near anything to make money. However, I wonder how their on-line ad revenues will be after this.

According to the Las Vegas Sun, Righthaven filed its first suit outside of Nevada. They filed in Charleston, SC for an alleged copyright violation from the Denver Post. This brings to 180 the number of lawsuits that Righthaven has filed claiming copyright infringement.

I had thought that like good little trolls, Righthaven might have stayed under the bridge with the shakeup at the Las Vegas Review-Journal but no such luck. The only think I am sad about in the list of papers below is that I’ll have to miss Don Surber’s column in the Charleston, WV Daily Mail. I have listed all the MediaNews Group papers below with their links in case you want to add them to your blocked list.

According to the Las Vegas Sun story:

In California, Media News is part of a partnership called the Bay Area News Group that includes Stephens Media. An affiliate of Stephens Media has invested in Righthaven and, until now, all of Righthaven’s lawsuits involved the Stephens Media-owned Las Vegas Review-Journal.

The MediaNews Group papers by state and city.

Alameda Times-Star    California – Alameda

Enterprise-Record    California – Chico

Times-Standard   California – Eureka

Argus   California – Fremont

The Daily Review   California – Hayward

Lake County Record-Bee  California – Lakeport

Press-Telegram   California –  Long Beach

The Monterey County Herald   California – Monterey

Marin Independent Journal  California – Novato

Oakland Tribune   California  – Oakland

Inland Valley Daily Bulletin   California  – Ontario

Oroville Mercury-Register   California  – Oroville

Pasadena Star-News   California – Pasadena

Tri-Valley Herald   California – Pleasanton

Red Bluff Daily News   California – Red Bluff

Redlands Daily Facts   California – Redlands

The Sun  California – San Bernardino

San Jose Mercury NewsCaliforniaSan Jose

San Mateo County TimesCaliforniaSan Mateo

Santa Cruz Sentinel  California – Santa Cruz

Daily Breeze   California – Torrance

The Ukiah Daily Journal   California – Ukiah

The Reporter   California – Vacaville

Times-Herald   California – Vallejo

Contra Costa Times   California – Walnut Creek

San Gabriel Valley Tribune   California – West Covina

Whittier Daily News   California – Whittier

Daily Democrat   California – Woodland

Daily News   California – Woodland Hills

Daily Camera   Colorado – Boulder

The Denver Post   Colorado – Denver

Fort Morgan Times   Colorado – Fort Morgan

Journal-Advocate   Colorado – Sterling

Sentinel & Enterprise   Massachusetts – Fitchburg

The Sun   Massachusetts – Lowell

North Adams Transcript   Massachusetts – North Adams

The Berkshire Eagle   Massachusetts – Pittsfield

The Detroit News   Michigan – Detroit

St. Paul Pioneer Press   Minnesota – St. Paul

Alamogordo Daily News   New Mexico – Alamogordo

Carlsbad Current-Argus   New Mexico – Carlsbad

The Deming Headlight   New Mexico – Deming

The Daily Times   New Mexico – Farmington

Las Cruces Sun-News   New Mexico – Las Cruces

Public Opinion   Pennsylvania – Chambersburg

The Evening Sun   Pennsylvania – Hanover

Lebanon Daily News   Pennsylvania – Lebanon

The York Dispatch   Pennsylvania – York

York Daily Record – York Sunday News   Pennsylvania – York

El Paso Times   Texas – El Paso

The Salt Lake Tribune   Utah – Salt Lake City

Bennington Banner   Vermont – Bennington

Brattleboro Reformer   Vermont – Brattleboro

Charleston Daily Mail   West Virginia – Charleston

H/T Sebastian and Clayton Cramer