A Good Start To The Month

Coming off the month of March in which he had wins at the District Court level in both the Woollard and Bateman cases, Alan Gura starts the month of April with news of a fee settlement with the District of Columbia for more than US District Court Judge Emmet Sullivan had awarded.

From BLT: The Blog of the Legal Times:

The attorneys who won the landmark D.C. gun case in the Supreme Court in 2008 have agreed to settle a legal fee dispute with the city for $1.5 million, terminating a dispute in a Washington federal appeals court.

The plaintiffs’ lawyers, including Alan Gura of Alexandria’s Gura & Possessky, who argued the high profile gun rights case in the Supreme Court, had sought more than the $1.17 million a trial judge awarded in December.

While I still think the District of Columbia is getting off cheap, I’m glad to see Alan Gura and Clark Neily finally getting paid for their years of work on the Heller case.

A spokesman for the city said they decided to settle to avoid the “uncertainties” of the appeals process. Given that first and foremost Alan is an appellate attorney, I think this probably was wise on the part of the city.

Grass Roots North Carolina On Their Win In The Bateman Case

Grass Roots North Carolina, the other organizational plaintiff in Bateman et al v. Perdue et al, released a statement this afternoon on the decision. The statement notes that it helps to extend the right to keep and bear arms outside the home. They also note that their attorney Alan Gura has extended his string of victories in Second Amendment cases.

Grass Roots North Carolina & Second Amendment Foundation expand gun rights

Lawyer Alan Gura extends string of Second Amendment wins

CHARLOTTE, N.C., March 29, 2012 /PRNewswire-USNewswire/ — Writing for the U.S. District Court for the Eastern District of North Carolina, Senior U.S. District Judge Malcolm J. Howard today added another to the growing list of gun laws struck down on Second Amendment grounds.

State of Emergency Gun Ban

In Bateman et al. v. Perdue et al., at issue was the state’s blanket prohibition on carrying firearms outside the home during declared states of emergency. During numerous states of emergency involving hurricanes and other phenomena, lawful North Carolinians have been prevented from protecting themselves outside the home, including an incident in which King, NC posted the entire town against firearms in anticipation of a snowstorm. Plaintiffs for the case were gun rights organizations Grass Roots North Carolina, the Second Amendment Foundation, and citizens Michael Bateman, Virgil Green and Forrest Minges, Jr.

Second Amendment Scholarship

The Bateman decision further extends the right to bear arms outside the home. Extensively cited in the decision were the recent Supreme Court decision affirming an individual right to keep and bear arms in D.C. v. Heller, the “incorporation” of the Second Amendment in Mc Donald v. Chicago, and recent Fourth Circuit decisions in U.S. v. Chester and U.S. v. Masciandaro.

From the decision:

Citing from Masciandaro: “…the Second Amendment right to keep and bear arms ‘is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur.'”

“It cannot be seriously questioned that the emergency declaration laws at issue here burden conduct protected by the Second Amendment…”

“…the statutes here excessively intrude upon plaintiffs’ Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest.”

In addition to the Heller and McDonald victories, attorney Alan Gura recently won a victory against Maryland’s restrictive handgun permit law in Woollard et al. v. Sheridan et al.

The Second Amendment Foundation On The Bateman Win

The Second Amendment Foundation, an organizational plaintiff in Bateman v. Perdue, released this concerning the win today. There were those who had suggested that we go through the NC General Assembly to get the Emergency Powers ban changed. Many of us in North Carolina as well as Grass Roots NC and the Second Amendment Foundation opposed that move while this case was still active. I think the judgment of SAF, GRNC, and those who felt it was important to wait for this victory was vindicated with Judge Howard’s decision.


For Immediate Release: 3/29/2012

BELLEVUE, WA – A federal district court judge in North Carolina has just struck down that state’s emergency power to impose a ban on firearms and ammunition outside the home during a declared emergency, ruling that the provision violates the Second Amendment right to keep and bear arms.

The case, Bateman v. Purdue, was brought by the Second Amendment Foundation, Grass Roots North Carolina FFE and three individual plaintiffs. Defendants in the case were Gov. Beverly Purdue and Reuben F. Young, secretary of the state’s Department of Crime Control and Public Safety, in their official capacities.

In his opinion, Judge Malcolm J. Howard, senior United States district judge for the Eastern District of North Carolina, wrote, “…the court finds that the statutes at issue here are subject to strict scrutiny…While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment.”

“When SAF attorney Alan Gura won the Heller case at the Supreme Court,” noted SAF Executive Vice President Alan M. Gottlieb, “the gun ban crowd said that we were a ‘one-trick-pony’ and that we would never knock out another gun law. Well, SAF has now knocked out gun laws in Maryland, Illinois and North Carolina.

“We filed this lawsuit on the day we won the McDonald case against Chicago,” he added, “extending the Second Amendment to all 50 states. This was part of our strategy of winning firearms freedoms one lawsuit at a time.”

Gottlieb pointed to language in Judge Howard’s ruling that solidifies the Second Amendment’s reach outside the home. The judge noted that the Supreme Court in Heller noted that the right to keep and bear arms “was valued not only for preserving the militia, but ‘more important(ly) for self-defense and hunting.”

“Therefore,” Judge Malcolm wrote, “the Second Amendment right to keep and bear arms ‘is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur.”

“Under the laws at issue here, citizens are prohibited from engaging, outside their home, in any activities secured by the Second Amendment,” Judge Malcolm wrote. They may not carry defensive weapons outside the home, hunt or engage in firearm related sporting activities. Additionally, although the statutes do not directly regulate the possession of firearms within the home, they effectively prohibit law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense. As such, these laws burden conduct protected by the Second Amendment.”

Why Does The Brady Campaign Want To Keep Gays Defenseless?

The oral arguments before the 10th Circuit Court of Appeals in the case Peterson v. Garcia et al are being held this afternoon in Denver. The case involves the attempt by Gray Peterson to obtain a concealed carry permit in Colorado as that state does not recognize his Washington State permit. For those that are unaware of Mr. Peterson and this case, he is gay and is a strong advocate of Second Amendment rights.

While the primary oral arguments will be made by John Monroe, attorney for Mr. Peterson, and the Colorado Attorney General’s Office, the Court of Appeals has allowed extra time for oral arguments by certain amici (friends of the court) in this case. Alan Gura will be representing the Second Amendment Foundation and a whole host of groups which include among others Illinois Carry, ISRA, and CalGuns. The NRA Civil Rights Defense Fund will be represented by Matt Bower of the NRA and the Brady Campaign will be represented by Jonathan Lowy.

As might be expected from the gun prohibitionists, they are portraying this as a battle between the good Brady Campaign and the evil NRA to prevent “guns in the streets.” From their press release:

Attorneys for the Brady Center and the NRA (National Rifle Association) will face off in a first-in-the-nation case before the U.S. Court of Appeals for the 10th Circuit in Denver, Colorado Monday, March 19. The case, Peterson v. Garcia, will decide whether the Constitution allows Colorado to protect public safety by continuing its policy of regulating who can carry loaded and concealable guns in public.

Senior Judge Walker D. Miller of the U.S. District Court for the District of Colorado dismissed the original case on March 8, 2011.The gun lobby then appealed to the 10th Circuit.

The Brady Center filed an amicus brief on July 19, 2011, in the U.S. Court of Appeals for the 10th Circuit, urging dismissal of the appeal. The Brady Center’s brief highlights the severe danger posed by concealed weapons, with studies showing that the carrying of guns in public does not make one safer, but instead increases the risks of death and injury. Brady believes that communities should be able to decide who can carry loaded guns on their streets, and in their parks and playgrounds.

Dangerous legislation has been introduced in Congress to force states like Colorado to honor concealed weapon licenses granted by other states, even by states with virtually no standards for concealed carry, and that allow carrying by people with violent pasts.

Notice that there is no mention in this release – and I presume none in their brief – that this case is really about a gay man wishing to protect himself from predators. I’d like to think that at least some of the the Brady Campaign’s donors might be appalled – and rightfully so – if they knew this.

Maryland’s May Issue Carry Permits Struck Down

Chalk up another win for Alan Gura. Judge Benson Everett Legg issued an order that was published today granting the Motion for Summary Judgment in favor of Raymond Woollard. From the Opinion:

The Court finds that Maryland‘s requirement of a ―good and substantial reason‖ for issuance of a handgun permit is insufficiently tailored to the State‘s interest in public safety and crime prevention. The law impermissibly infringes the right to keep and bear arms, guaranteed by the Second Amendment. The Court will, by separate Order of even date, GRANT Woollard‘s Motion for Summary Judgment and DENY Defendants‘ Motion for Summary Judgment.

From the Order:

For the reasons set forth in the accompanying Memorandum of even date, it is, this 2nd day of March, 2012, hereby ORDERED as follows:
1. Plaintiffs’ Motion for Summary Judgment (Docket No. 21) is hereby GRANTED,
2. Defendants’ Motion for Summary Judgment (Docket No. 25) is hereby DENIED,
3. Plaintiffs’ prior Motion for Summary Judgment (Docket No. 12) is DENIED AS MOOT, and
4. The Clerk is directed to CLOSE the case.

As soon as I can read the Opinion, I will post on the details. In the meantime, Raymond Woollard wins -as does everyone in the State of Maryland.

Gura Appeals The Fee Award In The Heller Case

The Legal Times is reporting that Alan Gura and Clark Neily have filed notice of appeal with the Court of Appeals for the DC Circuit. They are appealing Judge Emmet Sullivan’s award of only $1.17 million in fees for the Heller case.

Last December, U.S. District Judge Emmet Sullivan said Gura is entitled to $1.17 million in fees and nearly $4,900 in expenses. Sullivan rejected Gura’s request for more than $3.12 million in fees and expenses.

“Sensitive to the fact that the fees in this case will be paid by the taxpayers, this Court is left with the difficult task of closely scrutinizing plaintiff’s fee petition to determine what is fair, reasonable, and just compensation for the legal services of plaintiff’s attorneys,” Sullivan said in his decision.

Judge Sullivan in setting the lower hourly fee for the attorneys who represented Dick Heller and the rest of the original plaintiffs agreed with DC’s contention that small firms should command lower fees than the mega-firms. He also rejected the contention of Alan Gura that a fee enhancement was due to the plaintiffs’ attorney for “superior lawyering” saying, in part,

Finally, the Court is not persuaded that plaintiff’s success in this action was attributable to the superior lawyering of his counsel. As plaintiff is well aware, “superior results are relevant [to a request for a fee enhancement] only to the extent it can be shown that they are the result of superior attorney performance.” See Perdue, 130 S. Ct. at 1674. In this case, the Court finds that the lawyering on both sides was excellent. The Court therefore concludes that plaintiff has failed to present this Court with the specific evidence necessary to overcome the “strong presumption” that the lodestar figure is reasonable.

I guess winning only the second case that dealt directly with the Second Amendment and changing the course of Second Amendment jurisprudence in the process doesn’t count.

By filing the appeal, Gura and Neily are seeking a second opinion as to the reasonableness of their request. While Gura was not available for comment, Clark Neily had this to say:

Neily said in an e-mail that “settlement discussions between the Heller’s legal team and the District of Columbia are ongoing, and we have filed our notice of appeal in order to preserve all available options.”

I’ve always held the District of Columbia City Council were a bunch of cheap bastards in dragging out their payment to Alan Gura and the rest. And I think Judge Sullivan is dead wrong in his assessment that superior lawyering didn’t win the case for Dick Heller.

Supreme Court Says No To Sean Masciandaro’s Appeal

In their orders released today, the Supreme Court denied Sean Masciandaro’s writ of certiorari without any comment. He had appealed to the Supreme Court from the 4th Circuit Court of Appeals which had punted the case.

Mr. Masciandaro was originally convicted of possessing a firearm on National Park Service property when he had stopped to take a nap before continuing his drive home. At the time of his arrest this was illegal but the law changed before he went to trial. Nonetheless, under existing precedent, this was valid even though it was no longer illegal.

As the Christian Science Monitor noted about this denial of certiorari:

Lawyers for a Virginia man had asked the justices to examine a question left largely unresolved in the high court’s two prior landmark rulings identifying the scope and substance of Second Amendment protections. The question is: Does the Second Amendment guarantee a right to bear arms in public for personal protection?

The court dismissed the case in a one-line order without comment. The action leaves lower court rulings intact and postpones the prospect of high court clarification on a key gun rights issue.

On one hand, I am sorry that the Supreme Court did not take this opportunity to clarify their rulings in Heller and McDonald. On the other hand, this opens the door for the Supreme Court to consider some of the cleaner cases working their way through the lowers courts.

By cleaner I mean ones that do not involve a criminal conviction but rather deal with the denial of permits or state laws that deal with carry. Some of these better cases include Woollard v. Sheridan in Maryland, Bateman v. Perdue in North Carolina, and  Kachalsky v. Cacace in New York. These three, I should note, are all Second Amendment Foundation cases with Alan Gura as the lead attorney.

In Ezell – Chicago’s New Range Ordinance Doesn’t Moot Case

Another win for Rhonda Ezell and the team of Alan Gura and David Sigale!

In a decision released today, Judge Virginia Kendall said that despite the rewriting of the Chicago Gun Range Ordinance, it doesn’t moot the case and denied the City of Chicago’s motion to dismiss the case.

Though the Court cannot conclude that the new ordinance is the same as the old without further litigation, as the Supreme Court did in Northeastern Florida, it is consistent with that case not to dismiss the instant litigation as moot and instead to let the parties litigate the issue of whether the new ordinance is a de facto ban on firing ranges or so burdensome as to infringe on Chicagoan’s Second Amendment rights. Moreover, as a practical matter, Ezell is either going to: (1) challenge the constitutionality of these restrictions by filing an amended complaint as part of this case; or (2) file a new case attacking the same restrictions. The Court sees no upside in making the parties start over with another judge who has less familiarity with the issues and facts of the case than this Court.

She then set Friday, September 30th as the deadline for the parties to submit an agreed proposed injunction order or separate proposed injunction orders if they cannot agree. The plaintiffs have until October 15th to submit an amended complaint which her attorneys have indicated they will doing. Finally, she set a status hearing for October 26th.

Kachalsky v. Cacace Appealed To 2nd Circuit Court Of Appeals

In a move that was expected, Alan Gura filed a notice of appeal with the 2nd Circuit Court of Appeals in Kachalsky v. Cacace. This is the case challenging New York State’s requirement to show “proper cause” for a pistol carry permit. From the docketing notice:

Date: September 12, 2011
Docket #: 11-3642
Short Title: Kachalsky v. Cacace
DC Docket #: 10-cv-5413
DC Judge: Seibel


A notice of appeal filed by Alan Kachalsky, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance, Eric Detmer in the above referenced case was docketed today as 11-3642. This number must appear on all documents related to this case that are filed in this Court.

The notice of appeal consisted of Judge Seibel’s decision in the case plus the docket history of the case from the District Court.

Damn! Judge Rules For State In Kachalsky v. Cacace

Kachalsky v. Cacace was the second of the post-McDonald cases brought by Alan Gura and the Second Amendment Foundation. Originally filed in July 2010, it challenged the arbitrary nature of the issuance of handgun permits in New York State and the requirement to show good or “proper cause”.

Today, Judge Cathy Seibel released her opinion granting the cross-motion for summary judgment from the State of New York and denying the motion for summary judgment for the plaintiffs. As the decision is a 60-page opinion, I have not had time to study it it in detail to see her reasoning.

As I said in the headline, damn!

UPDATE: I have quickly scanned through Judge Seibel’s opinion. She made the following points:

  • The court had subject matter jurisdiction and the case was ripe. By denying them permits, the State of New York had injured the plaintiffs.
  • Found that the Second Amendment Foundation did not have standing as an organizational plaintiff.
  • Said none of the abstention doctrines pushed by New York applied in this case.
  • Found that Second Amendment protections in Heller only applied to “hearth and home” and not to carry outside of the home.
  • Says New York’s proper cause requirement meets the standard set forth in Heller.
  • Argument about hunting “unavailing” as “as hunting does not involve handguns and therefore falls
    outside the ambit of the challenged statute.”
  • Says intermediate scrutiny applies here and that NY Penal Code 400.00(2)(f) is related to a important governmental interest.
  • Says equal protection claim fails as the statute “does not treat similarly situated individuals differently, but rather applies uniformly.”

UPDATE II: As Gray Peterson and Gene Hoffman reminded me by Twitter, Alan Gura lost both what was then Parker v. DC and McDonald v. Chicago at the District Court level as well as more recently Dearth v. Holder and Ezell v. Chicago. All four of those cases eventually became wins at the appellate level.