NRA Drops Lawsuit Against San Francisco

The NRA officially dropped their lawsuit against the City and County of San Francisco yesterday. The lawsuit was brought due to a resolution approved by the Board of Supervisors branding the NRA a “domestic terrorist organization”.

NOTICE IS HEREBY GIVEN that pursuant to Federal Rule of Civil Procedure 41(a)(1)(i), Plaintiff the National Rifle Association of America voluntarily dismisses without prejudice the above-entitled action against all Defendants. This notice of dismissal is being filed with the Court before service by Defendants of either an answer or a motion for summary judgment.

San Francisco, in their reply to the original complaint, contended their resolution was a “statement of policy” and “non-binding”.

From the San Francisco Chronicle:

Mayor London Breed had already told city staff that the measure did not limit the city’s dealings with any vendors doing business with the NRA. Stefani said her resolution was a legitimate public denunciation with no binding consequences.

At the time Mayor Breed made her statement that the resolution would not impact dealings with vendors, NRA outside counsel William Brewer III indicated that the lawsuit would continue until the the resolution was formally revoked. As of yesterday, the resolution had not been revoked but nonetheless the case was dismissed.

Both sides are now claiming victory in the lawsuit.

City Attorney Dennis Herrera issues a short statement that said:

“We’re pleased the NRA backed down on its frivolous lawsuit. This was a baseless attempt to silence San Francisco’s valid criticisms of the NRA and distract from the gun violence epidemic facing our country. San Francisco will never be intimidated by the NRA. If the NRA doesn’t want to be publicly condemned for its actions, it should stop sabotaging common sense gun safety regulations that would protect untold numbers of Americans every year, like universal background checks, an assault weapons ban, and restrictions on high-capacity magazines.” 

The NRA and its attorney proclaimed victory in a multipart Twitter post:

Today the NRA withdrew its lawsuit in SF – and now celebrates the important victory it obtained on behalf of its members. As has been widely reported, after the Association challenged the unconstitutional resolution, the City beat a hasty retreat and backed down from its wildly illegal blacklisting scheme. The censors are on notice. The NRA will always fight for the Constitution, and will re-file if the City tries anything like this in the future.

So it appears that each side got a participation trophy allowing both sides to claim victory. The NRA got San Francisco to declare that the resolution was non-binding and San Francisco got the lawsuit dismissed without officially revoking the resolution.

I don’t think anyone can question that the NRA had to sue San Francisco in this case. However, I did find it interesting that the NRA didn’t use attorney Chuck Michel and his firm to handle the lawsuit. Michel and Associates has traditionally been the NRA’s go-to law firm for California related cases. Instead they used Las Vegas based Garman Turner Gordon as their attorney on the ground and Brewer, Attorneys and Counselors, as “of counsel”.

NRA News On Gun Runner Yee

You have to wonder if Sen. Leland Yee has a cool tong/triad nickname like Raymond Chow has in “Shrimp Boy”. My suggestion is that he should now be know as Gun Runner Yee. That has a strong masculine ring to it and should fit in with his activities on behalf of Wo Hop To and the Hop Sing Boys.

Ginny Simone of NRA News takes a more serious approach to Gun Runner Yee than I do and interviews the NRA’s longtime attorney in California, Chuck Michel, regarding his arrest.

Great Response To California AG Harris’ Attempt To Appeal Peruta

Attorney Chuck Michel is the West Coast attorney for the National Rifle Association and was the trial counsel in Peruta v. County of San Diego. He issued an interesting statement on Friday regarding the attempt by California Attorney General Kamala Harris to intervene and appeal the case.

Michel notes that when the Attorney General was named in other suits regarding carry, she successfully argued that the power to administer carry licenses lay with the sheriffs and not her. In the statement below, he uses her own language in official filings to impeach her efforts to intervene in the Peruta case.

From the statement:

The Attorney General’s office was repeatedly invited to participate in this case both by Sheriff Gore’s attorney, and by the plaintiffs. The Attorney General declined to participate in the case, just as she has refused to get involved in similar cases challenging policies in other cities and counties that refused to accept self-defense as justification to get a license to carry a firearm in public to defend yourself and your family.

In fact, when the Attorney General’s office was named as a defendant in some of those cases, it has successfully moved to be dismissed from the cases because the court has accepted the Attorney General’s argument that she is not the official vested with the authority of the state when it comes to administering these licenses – the Sheriff is.

Excerpts from Mehl:

1) “Since only sheriffs and chiefs of police have authority under the CCW statutes to grant, deny or revoke licenses, Applicants cannot establish Article III jurisdiction over the Attorney General with regard to their facial challenges to the validity of the statutes or for review of the Sheriff’s refusal to grant their CCW licenses.”

2) “Only sheriffs and chiefs of police are authorized to perform these functions. . . . Contrary to Applicants’ implication, the Attorney General is not authorized by the CCW statutes to review the decisions of the sheriffs and chiefs of police. Because Applicants’ alleged injury can occur only through the actions of the Sheriff, independent of the authority of the Attorney General, any ostensible harm cannot be traced to the Attorney General.” Mehl v. Blanas.

It is ironic that the Attorney General does not recognize that the arguments she made about her authority to abandon the defense of the gay marriage ban apply equally here. The Sheriff has the ultimate authority to decide whether to continue to fight this case, and he has made his decision to refrain from doing so. But now that it suits her political agenda, Kamala Harris wants the court to impose a double standard.

The Second Sunnyvale Lawsuit

I’m a few days late on reporting this but on Monday the NRA filed suit in US District Court for the Northern District of California, San Jose Division against the City of Sunnyvale and their Measure C which contains a magazine ban. The lawsuit is entitled Fyock et al v. City of Sunnyvale et al and is being handled by California attorney Chuck Michel. The suit seeks declaratory and injunctive relief on the grounds that the new ordinance violates the Second Amendment.

This makes the second lawsuit against the City of Sunnyvale over Measure C. The National Shooting Sports Foundation filed their lawsuit a week earlier in Santa Clara County Superior Court.

The NRA-ILA gives more details on the lawsuit and why they brought it in the release below:

Several Sunnyvale residents have filed a lawsuit supported by the National Rifle Association, challenging the City’s recent ban on the possession of magazines capable of holding more than ten rounds. The federal, Second Amendment-based legal challenge is part of a campaign of nationwide litigation filed and supported by a variety of individuals, civil rights groups, and law enforcement officers and associations. The coordinated lawsuits seek to confirm that the Second Amendment protects these common standard-capacity magazines for self-defense and sporting purposes.

Firearms equipped with magazines capable of holding more than ten rounds have been around for nearly two centuries. Today, these firearms are possessed by millions of law-abiding citizens for a variety of lawful purposes, including self-defense. And the U.S. Supreme Court has affirmed that self-defense is the “central component” of the Second Amendment.

As most gun owners already know, magazines holding more than ten rounds are standard equipment for many popular pistols and rifles throughout the country. In fact, most pistols in the United States are manufactured and sold with magazines holding between ten and seventeen rounds.

The overwhelming majority of states have not banned law-abiding citizens from owning standard-capacity firearms. And only a handful of states refer to such firearms and magazines as being “high-capacity.” The label “large-capacity magazine” is, of course, a term created by anti-gun zealots in an attempt to ostracize what, in reality, is the absolute norm nationwide. Some in the gun ban lobby have even started referring to magazines over ten rounds as “mega magazines.”

The majority of law enforcement officers in the United States acknowledge that banning standard-capacity magazines capable of holding more than ten rounds will not increase public safety. There is now a growing trend of law enforcement organizations actively opposing and challenging these measures in court. The San Francisco Veteran Police Officers Association (SFVPOA) recently filed a lawsuit challenging San Francisco’s recent ban on the possession of standard-capacity magazines. In Colorado, a broad coalition of law enforcement officials filed suit against that state’s recently-enacted ban on common magazines. Earlier this year in New York, the State Sheriffs Association, the Law Enforcement Legal Defense Fund and individual law enforcement officers filed an amicus brief in support of a challenge to the state ban on common rifles and magazines. And in Connecticut, a coalition of individual law enforcement officers and the Law Enforcement Legal Defense Fund filed another legal brief in support of pending challenge to similar laws.

The Sunnyvale ordinance essentially allows for confiscation of any prohibited magazines and, because of state laws restricting their transfer, they cannot be replaced. Sunnyvale’s ordinance took effect on December 6, 2013. Residents of Sunnyvale then have until March 6, 2014 to turn over their lawfully-possessed magazines to the police, remove them from Sunnyvale in the few cases where it might be legal or transfer them to a licensed firearms dealer.

Lawyers at Michel & Associates representing the plaintiffs will seek an injunction to prevent Sunnyvale from enforcing this law. The plaintiffs are prepared to appeal this case as high as necessary to have this misguided ordinance declared unconstitutional. This important Second Amendment issue may ultimately be addressed by the U.S. Supreme Court.

By allowing residents and visitors to Sunnyvale to only possess reduced-capacity magazines, the City has arbitrarily limited the number of rounds that its law-abiding residents have to protect themselves and their loved ones. Hunters and sport shooters traveling through Sunnyvale with these magazines can also be prosecuted, even if they are unaware of this law.

Even active law enforcement officers are forced to surrender their magazines and cannot possess anything but reduced-capacity firearms for self-defense in their homes. Although this law strangely exempts some retired law-enforcement officers who are authorized to carry a concealed firearm, it only exempts magazines possessed by active law enforcement officers while acting in the course and scope of their duties.

Police officers who have any magazines over ten rounds in their personal collections, or any magazines they were authorized to purchase for off-duty use, must dispose of those magazines. If they don’t, the officers will become criminals. The same is true for active law enforcement officials in San Francisco where the City Attorneys Office confirmed that only official-duty magazines issued by the Police Department are exempt.

Family members of law enforcement officers are also at risk. If an officer leaves the house without locking his or her magazines away, anyone who is present in the home will be in violation of the law. These misguided laws also place thousands of state and federal law enforcement officials who travel through Sunnyvale and San Francisco in jeopardy. Many off-duty law enforcement officials lawfully carry a firearm with a magazine that holds more than ten rounds when traveling in other cities and states. Every time these officers travel into San Francisco or Sunnyvale, they will be in violation of the law and subject to criminal prosecution.

Sunnyvale’s decision to limit law-abiding citizens to magazines holding a maximum of ten rounds endangers the public by giving violent criminals an advantage and decreasing the likelihood that a victim will survive a criminal attack. Of course, criminals who wish to carry out violent attacks will not be thwarted by the City’s restriction since they ignore all gun control laws. Criminals will simply continue to do what they have always done – buy and possess magazines on the black market or carry multiple firearms to complete their violent crimes.

The Sunnyvale magazine ban is part of a gun control package known as “Measure C” – a ballot measure that was passed by Sunnyvale voters earlier this year. Litigation has already been filed by the National Shooting Sports Foundation challenging the law’s ammunition sales registration requirements, which are preempted by state law and violate state privacy protections.

All the case documents can be found on the Michel and Associates website here.

Sunnyvale Planning Commission Wants To Impose Unconstitutional Restrictions Due To NIMBYs

Attorney Chuck Michel who works with the NRA/CRPA Legal Action Project in California posted an article this evening about the Sunnyvale, California Planning Commission. The Planning Commission is seeking to have the Sunnyvale City Council adopt a new municipal ordinance which would put increased restrictions on the sale of firearms in Sunnyvale. The Commission is responding to unfounded complaints from some neighbors of a firearms dealer that opened in Sunnyvale in 2010. The complaints include that they weren’t notified and that children walk by the store on their way to school as if just merely seeing guns will turn their kids into the next Klebold and Harris (of Columbine infamy).

NRA & CRPA OPPOSE NEW REGULATIONS RESTRICTING FIREARMS DEALERS IN SUNNYVALE, CA

On August 22, 2011, the Planning Commission for the City of Sunnyvale held a meeting to consider the City’s ongoing “Firearms Sales Study Issue.” The issue originated when a firearms dealer, U.S. Firearms, opened for business in Sunnyvale in the fall of 2010. Despite the fact that the dealer had all necessary permits and licenses from both the state and federal government, neighbors made complaints to Sunnyvale staff and elected officials.

The Sunnyvale Planning Commission ultimately decided to sponsor the issue as a result of the complaints, but the City Council ranked it number 4 of 4 for 2011. Even though this issue had the lowest ranking by the City Council for 2011, and the fact that the Staff Report on the issue (AVAILABLE HERE) indicates that “there has been no evidence of increased crime, property devaluation or land use incompatibilities as the result of the businesses,” and Sunnyvale “staff ha[d] not identified any adverse land use impacts associated with a firearms store,” the Planning Commission nonetheless recommended that the City Council adopt an ordinance to amend the City’s municipal code to place restrictions on firearm sales in Sunnyvale. Though the staff report acknowledged there had been no problems with firearm sellers, staff nonetheless inexplicably noted in the report that, “[t]he greatest concern regarding firearm sales is the business operator that is engaged in buying and selling the firearms.”

The approved ordinance would: 1) add a definition for “firearms sales business;” 2) prohibit these businesses in commercial and industrially-zoned districts within 200 feet of public schools in order to provide a buffer to the schools; and 3) require a new DPS Firearms Dealer Permit that would include additional conditions such as requiring a security plan to be installed and then inspected by the City, and that the Federal Firearm License (FFL) holder and all employees meet the state and federal requirements regarding past criminal convictions, etc. (current requirements are limited to the dealer and not the employees).

Michel & Associates attorneys submitted an opposition letter to the Planning Commission on behalf of the National Rifle Association (NRA) and California Rifle & Pistol Association (CRPA) noting that firearm dealers are subject to a variety of background checks at both the state and federal levels. The letter (AVAILABLE HERE) also noted that firearm dealers are generally some of the most upstanding members of society, and that after the Supreme Court’s McDonald decision, they enjoy a protected status as purveyors of a fundamental right. So the fact that some “residents [of Sunnyvale] have expressed [unfounded] concerns about the potential crime and public safety risk associated with a firearm sales business located near their homes and schools” does not mean that the City of Sunnyvale is free to infringe on fundamental Second Amendment rights.

The letter explains that since the Second Amendment is a newly court-recognized right, the contours of the Second Amendment’s protections are still being litigated in courtrooms across the country. The letter also amicably explains the current legal landscape regarding firearm regulation, and suggests Sunnyvale should avoid litigation on these issues by consulting with the NRA, CRPA, and their attorneys.

As the city continues moving forward with the proposed ordinance, additional correspondence will be submitted.

I have examined the 141 page staff report submitted to the  Sunnyvale Planning Commission. Much of the document was devoted to reporting on the comments at a public meeting on the issue. Approximately 120 people attended the June 2011 meeting and it appears that the overwhelming majority were against any new regulations and were indeed pro-rights. Many of the letters received also support the existing gun store, U.S. Firearms, and gun stores in general.

However, the Legal Community Against Violence (LCAV) has weighed in on the issue with a 59 page submission urging the Planning Commission to adopt new regulations. Unfortunately, this submission and not the majority of the residents of Sunnyvale seems to have carried the day. You must wonder if LCAV will also foot the legal bills for Sunnyvale when they get the pants sued off of them on Second Amendment grounds. I somehow doubt it.