D’Cruz v BATFE

Uncategorized

Changes In NRA Lawsuits In Texas

February 16, 2011 by 5 Comments

In the lawsuit the NRA brought against the Bureau of Alcohol, Tobacco, Firearms, and Explosives, D’Cruz et al v. BATFE et al, James D’Cruz is being replaced as the lead plaintiff. According to the court filing, his parents have moved from Lubbock, TX to Titusville, FL and Mr. D’Cruz has chosen to move with them. He was given permission by the court to withdraw from the case as the lead plaintiff.

Plaintiff’s attorneys were given permission to file a Second Amended Complaint. The amended complaint was filed on February 11th. Rebekah Jennings and Brennan Harmon will be joining Andrew Payne as the individual plaintiffs in the case.

Rebekah Jennings is a resident of Boerne, TX. She has been a member of the U.S. Olympic Development Team for pistol shooting and is a member of the Texas State Rifle Association’s Junior National Team. Ms. Jennings not only shot for the TSRA Junior National Team, she was the high junior at Camp Perry this year in pistol shooting. Her score of 285×15 was not only good enough to win the Junior National Trophy Match but to shatter the old record. Ms. Jennings also made the President’s 100 for pistol shooting. The picture below is of her accepting her trophy at Camp Perry.

Ms. Jennings paired with another Texas junior shooter, Zach Hedrick, to win the Junior National Trophy Team match. You can see the picture of them below accepting that trophy.

The other new plaintiff is Brennan Harmon of San Antonio, TX. While Ms. Harmon currently owns both a rifle and a shotgun, she would like to purchase a pistol for self-defense according to the amended complaint. Of course, she and Ms. Jennings are both precluded from purchasing pistols due to current Federal law and regulations.

In a move that will greatly disappoint Paul Helmke and Josh Horwitz, Facebook pages for both Ms. Jennings and Ms. Harmon feature no pictures except for a profile picture. I am guessing that the NRA attorneys “sanitized” their Facebook pages to prevent having them dragged through the mud like Helmke and Horwitz attempted to do to James D’Cruz. Still I would put nothing past either Helmke or Horwitz in pursuit of their goal of gun prohibition.

James D’Cruz is still listed as the lead plaintiff in D’Cruz et al v. McCraw et al. This case is the challenge to the age 21 requirement to obtain a Texas CHL. I would not be surprised to see this change as well with Mr. D’Cruz’s move to Titusville, FL to live with his parents. If this does change, I will have an update.

H/T Sebastian

UPDATE: Ian asked a queston on whether the State of Texas issues non-resident concealed handgun licenses. They do but require the education component to be taught in Texas. As James D’Cruz has taken the education component while still residing in Texas, I don’t think this will be an issue.

Is Texas the proper venue for a non-resident to sue? I don’t know for sure but would guess it would be.

Below is the Texas requirements for a non-resident license as taken from their CHL Handbook.

GC §411.173. NONRESIDENT LICENSE. (a) The department by
rule shall establish a procedure for a person who meets the eligibility
requirements of this subchapter other than the residency requirement
established by Section 411.172(a)(1) to obtain a license under this
subchapter if the person is a legal resident of a state another state
or if the person relocates to this state with the intent to establish residency
in this state. The procedure must include payment of a fee in an
amount sufficient to recover the average cost to the department of
obtaining a criminal history record check and investigation on a
nonresident applicant. A license issued in accordance with the procedure
established under this subsection:
(1) remains in effect until the license expires under Section
411.183; and
(2) may be renewed under Section 411.185.
(a-1)*[repealed by Act effective September 1, 2005, 79th Leg., R.S., H.B. 225, §4.]
(b) The governor shall negotiate an agreement with any other state
that provides for the issuance of a license to carry a concealed
handgun under which a license issued by the other state is recognized
in this state or shall issue a proclamation that a license issued by the
other state is recognized in this state if the attorney general of the
State of Texas determines that a background check of each applicant
for a license issued by that state is initiated by state or local authorities
or an agent of the state or local authorities before the license is issued.
For purposes of this subsection, “background check” means a search
of the National Crime Information Center database and the Interstate
Identification Index maintained by the Federal Bureau of Investigation.
(c) The attorney general of the State of Texas shall annually:
(1) submit a report to the governor, lieutenant governor, and
speaker of the house of representatives listing the states the attorney
general has determined qualify for recognition under Subsection (b);
and
(2) review the statutes of states that the attorney general has
determined do not qualify for recognition under Subsection (b) to
determine the changes to their statutes that are necessary to qualify
for recognition under that subsection.
(d) The attorney general of the State of Texas shall submit the report
required by Subsection (c)(1) not later than January 1 of each calendar
year.

Uncategorized

Tools

January 3, 2011 by

From the Urban Dictionary comes this definition of a tool:

One who lacks the mental capacity to know he is being used. A fool. A cretin. Characterized by low intelligence and/or self-esteem.

(For example:) That tool doesn’t even know she’s just using him.

On Monday, December 27th, the Brady Campaign finally was able to file their amicus brief in D’Cruz et al v. BATFE et al. As some may remember their earlier attempt at filing an amicus brief had to be withdrawn as no Motion to Dismiss had been filed.

The Brady Campaign brief had the usual suspects – Mothers Against Teen Violence and the Texas chapter of the Brady Campaign – as interested parties. In addition, they were joined by the University of Texas Student Government, the University of Texas Graduate Student Assembly, and the Students for Gun-Free Schools in Texas. I imagine that the Brady Campaign feels they have scored a major PR coup by getting those three student groups to join their amicus brief. I wonder if those groups even realize that they have just been used.

The person behind both the Student Government and the Graduate Student Assembly signing on to the Brady brief is John O. Woods. Mr. Woods is a graduate student in cell and molecular biology at the University of Texas and a graduate of Virginia Tech.  As a story in the Dallas Morning News notes, his girlfriend was one of the students murdered at Virginia Tech back in 2007.

He seems to have made it his mission to keep college campuses in Texas as so-called gun-free zones. His blog discusses his feeling on gun control, politics, and other items. Having scanned a few of his entries, I think it is safe to say anything James D’Cruz may have said on his Facebook page pales by comparison to the ramblings of Mr. Woods.

Mr. Woods is a Director of the Students for Gun-Free Schools in Texas. He is also a representative in the University of Texas Graduate Student Assembly. Both the Student Government and the Graduate Student Assembly recently adopted resolutions urging a ban on handguns on campus that were authored by him. The minutes from the Student Government meeting are here. The Student Government adopted another resolution to that called for “closing the loopholes” in the “Brady Background Check System.”

The Brady Campaign and Mr. Woods both have an agenda which includes the disarmament of young adults among other things. One must wonder if the Student Government and the Graduate Student Assembly representatives realize that by signing on to this brief they are saying to a substantial part of the student body you aren’t worthy of the full rights of adult citizens. Probably not because they are tools.

Uncategorized

FoxNews Covers D’Cruz Case

December 6, 2010 by 2 Comments

Larry Thompson, attorney for James D’Cruz and the NRA, and Paul Helmke, head of the Brady Center, appeared on Fox and Friends on Saturday morning to debate whether 18-20 year olds should be allowed to legally purchase handguns as well as carry concealed in Texas.

In the short time period, I would say that Thompson got most of his points made while Helmke said that except for voting 18 year olds aren’t mentioned in the Constitution. So, if one is to listen to Paul Helmke, your only right as an 18 year old is to vote for Obama in big numbers and then shut up. I wish Fox had given them more time to discuss this case.

Watch the latest video at <a href=”http://video.foxnews.com”>video.foxnews.com</a>

H/T James D’Cruz

Uncategorized

The New York Times – Still A Shill For Gun Banners

November 27, 2010 by 2 Comments

The lead editorial in Friday’s New York Times was entitled Handguns for 18-Year-Olds? As one has come to expect from the Times, the editorial was full of the trite phrases and misleading statistics used by gun banners along with their own sense of righteous indignation.

Undermine public safety. Scuttle basic gun controls. Common-sense efforts. The deadly loophole. The gun lobby. Gun traffickers. Allow armed teenagers. Unlicensed sellers. Powerful semiautomatic weapons. Reasonable restrictions. The Times’ editorial may have left out one or two phrases from the approved lexicon of the Brady Campaign but that’s all.

The editorial starts with the accusation that the NRA “keeps coming up with clever new ways to undermine public safety.” It then launches into a litany of supposed sins committed by the NRA including opposition to the Lautenberg proposal to ban firearm sales to anyone on the FBI’s “terrorist watch list” and to a requirement for NICS checks on private sales of firearms between individuals.

The Times gets in a plug for Andrew Traver, Obama’s nominee to head ATF, calling him a “well-qualified career professional”. They bemoan opposition to him by “the gun lobby” saying his “sin” was merely to associate with “a police chief’s group that wants to reduce the use of handguns on city streets.” That it was funded by the virulently anti-gun Joyce Foundation is immaterial to them.

The meat of the editorial is an attack on the NRA for bringing the D’Cruz cases challenging the ban on the sale of handguns to legal adults under the age of 21 and challenging the Texas CHP law which sets 21 as the minimum age for non-military, non-veteran adults.

As a legal matter, both lawsuits should fail. In its recent Second Amendment rulings, the Supreme Court struck down complete bans on handgun ownership, but explicitly left room for limits on gun ownership and possession by felons and the mentally ill, and other reasonable restrictions like Texas’ age limitations. The Supreme Court has said nothing to suggest that the Second Amendment requires Americans to allow armed teenagers in their communities.

Beyond the dubious legal claims, the idea that young individuals ages 18 to 20 have a constitutional right to buy weapons and carry them loaded and concealed in public is breathtakingly irresponsible.

They then throw out statistics saying that 18-20 year-olds commit more violent crime than other age groups and imply that lowering the age to 18 will just put more weapons in the hands of this group. Of course, this ignores both the NICS check required for a purchase of any firearm from a licensed dealer and the training, background, and other requirements needed to obtain a Texas Concealed Handgun License. As an aside, private sales of handguns are permitted for 18-20 year olds in the State of Texas and 18-20 year olds can and do obtain Texas CHL’s if they serve or have served in the military. This, too, is ignored by the Times in their editorial.

The Brady Campaign jumped the gun with their amicus brief in D’Cruz v. McCraw and had to withdraw it. However, as this editorial illustrates, Big Media is more than willing to continue to be a shill and do the propaganda work for them. Some things just never change.

Uncategorized

NRA Amends Complaints in Texas Cases Challenging Higher Age for Purchase and CCW

October 29, 2010 by 1 Comment

The NRA has amended the complaints in their cases in US District Court for the Northern District of Texas challenging laws that impact 18 to 20 year olds who wish to purchase a handgun or carry a handgun concealed. Links to and description of the original D’Cruz case can be found here.


The changes in the suits include adding additional plaintiffs, additional information on James D’Cruz’s marksmanship qualifications, some wording changes, and a bit more emphasis on the Second Amendment. Since there are two suits, I will detail the changes case by case.

D’Cruz et al v. BATFE et al

The first change is that an additional individual plaintiff has been added as well as the NRA itself as an organizational plaintiff. The new individual plaintiff is Andrew Payne, an 18 year old resident of Lubbock, Texas. Mr. Payne is the owner of several long guns but would like to be able to purchase a handgun and handgun ammunition from a federally-licensed dealer.

The NRA itself has become an organizational plaintiff in the case representing members residing in Lubbock and other areas of west Texas. It is also representing federally-licensed dealers (FFL’s) who are members of the NRA who wish to be able to sell firearms to 18-20 year old adults.

I think – and this is only a supposition on my part – that the additional plaintiffs were added for two reasons. The first reason is that with the additional plaintiffs it shows that more people than just Mr. D’Cruz are impacted by Title 18, Sections 922(b)(1) and 922(c) which ban the sale of handguns to the 18-20 year old adult citizens. Secondly, and perhaps more importantly, the addition of the NRA as a plaintiff to the suit removes the possibility that the issue becomes moot when Mr. D’Cruz and Mr. Payne turn 21. Federal cases can take years to move through District Court and then the appellate courts.

In discussing the law at issue, the amended complaint recognizes that:

The Second Amendment secures the right to purchase handguns and handgun ammunition for self-defense and other lawful purposes. And the Second Amendment’s protections extend in full to law-abiding adults aged eighteen or older.

The other major addition to the complaint is information on Mr. D’Cruz taking and passing the course required to obtain a Texas Concealed Handgun License which he passed with flying colors. I believe the intent is to show that Mr. D’Cruz is extremely competent with the handling of a handgun.

With the exception of naming the plaintiffs instead of just referring to them as “plaintiffs”, both Counts and the Prayer for Relief remain the same as the original complaint.

D’Cruz et al v. McCraw et al

The National Rifle Association was added to this case in the amended complaint as an organizational plaintiff. It notes it has members in Lubbock and west Texas who are in the 18-20 year old range who would wish to carry a handgun for self-defense and would want to obtain a Texas CHL. Again, I think the NRA was added as a plaintiff to protect the suit from being declared moot if Mr. D’Cruz either ages out or, peculiar to this case, joins the military.

Additions to this complaint include a paragraph outlining the 14 requirements under Texas Gov’t Code § 411.172(a) that must be met in order to qualify for a Texas Concealed Handgun License. Another addition is a paragraph describing the coursework and shooting proficiency tests required to demonstrate evidence of handgun proficiency required under Texas Go’vt Code § 411.174(a)(7).

Mr. D’Cruz, to bolster his case, took the required Texas CHL course:

On September 26, 2010, Mr. D’Cruz completed a handgun safety and proficiency course taught by a CHL instructor licensed by the Texas Department of Public Safety. The course consisted of approximately eight hours of classroom instruction and two hours of range instruction. The course culminated with administration of the written and range tests that are given to applicants for a CHL. To qualify for a CHL, applicants must achieve a score of 70% or better; an applicant may attempt each test three times to achieve the required score. On his first attempt, Mr. D’Cruz achieved a score of 92% on the written examination and a score of 93.6% on the range examination. Indeed, in terms of knowledge and skill with respect to the safe and proper handling of handguns, Mr. D’Cruz’s instructor has stated that he would place Mr. D’Cruz in the top 5-8% of students he has instructed over fifteen years.

Thus, with the only exceptions being his age and lack of military service, Mr. D’Cruz would qualify under Texas law for a concealed handgun license. When he went to apply again online for his Texas CHL, he got the following:

Upon receiving Mr. D’Cruz’s “customer authentication” information requested on the first page of the application, the website returned the following response: “Persons between the ages of 18 and 21 are only eligible to apply for license under the Active Military or Veteran conditions.”

The remainder of the complaint including both Counts 1 and 2 and the Prayer for Relief remain the same as the original complaint. His grounds remain an infringement of his Second and Fourteenth Amendment rights to keep and bear arms as well as an infringement of his Fourteenth Amendment rights to equal protection based upon his age.

Bearing in mind that I am not a lawyer, I think the changes strengthen both cases. Protection against the case becoming moot is built in with the addition of the NRA as an organizational plaintiff. Moreover, with Mr. D’Cruz now having taken the required handgun safety and proficiency class and passed with flying colors, it is hard to argue that it is a safety or proficiency issue. Given that the judge in this case, Judge Sam Cummings bolstered the Second Amendment as an individual right with his opinion in the Emerson case, it will be very interesting to see how these cases turn out. At least, we know we can’t blame a loss on an anti-gun judge.

Uncategorized

NRA Files Suits Challenging Handgun Bans on 18-20 Year Olds (updated)

September 21, 2010 by 4 Comments

On Wednesday, September 8th, the NRA filed two suits in US District Court for the Northern District of Texas challenging laws that impact 18 to 20 year olds who wish to purchase a handgun or carry a handgun concealed.

The first suit, D’Cruz v. BATFE et al, is the one that has garnered all the attention in the media and on blogs. Even the NRA Institute for Legislative Affairs in their release only mentions the suit against BATFE. However, in addition to this lawsuit, the NRA filed a second lawsuit simultaneously that names the Texas Department of Public Safety and the Texas Public Safety Commission as the plaintiffs. That case is D’Cruz v. McCraw et al.

These are not the NRA’s first lawsuits that challenge the age-based requirements that discriminate against 18 to 20 year olds with regard to handguns. The original complaint in Benson et al v. Chicago et al challenged that part of the new Chicago handgun law that required 18 to 20 years olds to obtain the written permission of a parent or guardian to apply for a Chicago Firearm Permit. See Section 19 of the original complaint here. This was dropped from the amended complaint along with a few other things as I detailed in this comparison.

So what are the new suits challenging and who is the plaintiff. The plaintiff is 18-year old James D’Cruz of Lubbock, Texas. He was a member of his high school Navy Jr. ROTC program for four years where he participated in the unit’s firearms training. In his junior and senior year of high school, he was an award-winning member of the NJROTC shooting team and competed in regional and national competitions. As to what the suits are challenging, I think it is better to discuss each suit individually.

D’Cruz v. BATFE et al

This suit challenges both laws and regulations that prohibit 18 to 20 year olds from purchasing a handgun from a Federally licensed firearms dealer (FFL) on the grounds that these laws and regulations violate both the Second Amendment and the Due Process Clause of the Fifth Amendment. The suit asks the court to declare these laws unconstitutional and to permanently enjoin the government from enforcing them.

 In its introduction, this suit makes note that at the age of 18, law-abiding citizens are generally considered adults. They are eligible to serve in the military, male 18-year olds are eligible to be drafted for military service under Selective Service laws, and male 18-year olds are designated members of the unorganized militia.

Yet, Section 922(b)(1) of the federal criminal code prohibits law-abiding adults in this age group from lawfully purchasing—from the most prevalent and readily available source—what the Supreme Court has called “the quintessential self-defense weapon” and “the most popular weapon chosen by Americans for self-defense in the home.”Heller, 128 S. Ct. at 2818.

A stated purpose of the Gun Control Act of 1968 was to aid law enforcement in their fight against crime and violence.The intent was not to place “any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity.”

However, Title 18, Section 922(b)(1) forbade the sale of handguns and handgun ammunition to those under the age of 21. Likewise, the derivative Federal regulations forbade a Federally licensed firearm dealer from selling a handgun to someone under age 21. Additionally, these same Federal regulations mandate the use of a Federally licensed dealer for transactions and transfers involving residents of different states.

20. The combined effect of these provisions is a significant, unequal, and impermissible burden on the right to keep and bear arms of a class of millions of law-abiding 18-to-20 year-old adult citizens. Section 922(b)(1) flatly bans the sale of handguns and handgun ammunition, by any person who engages in the regular business of selling guns, to anyone eighteen to twenty years of age. These law-abiding adults are thus relegated to the irregular secondary market for face-to-face intrastate sales of used handguns. And because Section 922(a)(5) bars interstate face-to-face sales, these law-abiding adults cannot even access larger used-gun markets that the Internet and other mediums might otherwise provide.

Count 1 of this lawsuit asks the court to declare that Title 18, Sections 922(b)(1) and 922(c) and relevant Federal regulations infringe and “impose an impermissible burden upon, the Plaintiff’s right to keep and bear arms under the Second Amendment.”

In Count 2, the court is asked to declare that because these laws and regulations treat law-abiding citizens between the ages of 18 and 20 differently than those age 21 or over, they violate the Due Process Clause of the Fifth Amendment.

D’Cruz v. McCraw et al

This suit takes aim at the State of Texas’s concealed carry law which requires a holder to be either at least age 21 or, if an 18 to 20 year old, to be a member or honorably discharged member of the military (active duty, reserve, or national guard). While Texas law does allow a non-military 18 to 20 year old to possess a handgun in either his or her home or car, they are not allowed to carry concealed.

Texas law does permit anyone over the age of 18 to purchase a handgun. However, as the case above makes clear, this purchase must be a private sale and not one handled by a Federally licensed dealer. It also allows those over 18 but under 21 to “supervise a minor’s use of a firearm for purposes of hunting, sporting, or other lawful purposes.” Texas law also permits Mr. D’Cruz to carry a rifle (or shotgun) just like any other adult.

Mr. D’Cruz wants to carry a handgun concealed for self-defense just like his parents. He and his parents sometimes shop in the less desirable parts of town. On September 3rd, he visited the Department of Public Safety website to fill out an electronic application for a concealed carry permit.

The website stated that to apply, Mr. D’Cruz “must be at least 21 years of age or at least 18 years of age if currently serving in or honorably discharged from the military.” Mr. D’Cruz was thus unable to lawfully proceed further with his application for a carriage permit.

Aside from the age and military requirements, Mr. D’Cruz already meets—or stands
ready, willing, and able to meet—all requirements for obtaining a Texas concealed-carry permit.

In discussing the impact of the ban on the plaintiff, the complaint does make the following allegation which, to be honest, sounds pretty lame:

Mr. D’Cruz also has a 29-year-old brother and military friends who share his interest in firearms safety and collecting. He would like to transport to, and carry a handgun in, their homes so that they might jointly discuss and demonstrate proper cleaning and safety practices with the handgun.

To jointly discuss and demonstrate proper cleaning? I wonder what the heck the lawyers were thinking when they put that “impact” in the complaint.

This lawsuit challenges the Texas Penal Code Sec. 46.02 and Texas Government Code Sec. 411.172(a)(2), (A)(9), (g) on the grounds that it violates the right to keep and bear arms as secured by the Second and Fourteenth Amendments by denying the right to carry a handgun for self-defense to those adults who are between 18 and 20 years of age. The lawsuit further charges that the above codes violate the Equal Protection Clause of the Fourteenth Amendment because they deny equal protection of the laws to those 18 to 20 year olds who have not or are not serving the United States military, reserve, or national guard.

UPDATE: Tom Gresham made a very pertinent observation on this case. The judge in these cases, Sam Cummings, is the same judge who presided over the Emerson case. His opinion in that case was one of the first to hold that the Second Amendment is an individual right. That decision is available here.

Not only are these cases being heard in the friendly confines of Texas but you couldn’t ask for a better judge to hear the case than Judge Sam Cummings.