Firearms Policy Coalition

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New Jersey Backs Down

March 30, 2020 by 2 Comments

News comes this afternoon that New Jersey Gov. Phil Murphy (D-NJ) has backed down from his order that all gun stores are non-essential and must close. His order led to a lawsuit from the Second Amendment Foundation and the Firearms Policy Coalition entitled Kashinsky v. Murphy.

SAF provides more info in this release:

The Second Amendment Foundation declare victory today when New Jersey Gov. Phil Murphy backed away from his earlier position on gun shop operations in the state during the current COVID-19 panic, and will now allow operations by appointment.

SAF sued Murphy and acting State Police Supt. Col. Patrick Callahan in U.S. District Court last week, seeking a preliminary injunction and temporary restraining order. They were ultimately joined by the New Jersey Second Amendment Society, Legacy Indoor Range and Armory LLC and the Firearms Policy Coalition (FPC), Racing Rails LLC d/b/a Legend Firearms and several private citizens. Plaintiffs were represented by noted civil rights attorney David Jensen of New York and Adam Kraut of California.

“We’re delighted that Gov. Murphy has reversed course on this matter, even if it took a lawsuit to get him to do it,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Our lawsuit cut right to the heart of what the Second Amendment is all about, which is personal protection during emergency situations like the ongoing coronavirus pandemic that has gripped the nation.”

Murphy found himself in the uncomfortable, and untenable, position of having to defend his armed protection detail while having closed down Garden State gun shops, making it impossible for average citizens to by even ammunition, much less a firearm.

“While we pursue litigation elsewhere,” Gottlieb said, “we’re happy that the situation in New Jersey has changed. Regardless what some politicians might think, the Second Amendment is not subject to emergency orders, same as the First, Fourth, Fifth or other constitutional protections.

“This is one more example of SAF’s ongoing mission to win back firearms freedom, one lawsuit at a time,” he concluded.

While I might have liked to say it was ScotShot’s guest editorial that convinced him to change his mind, I think it is more likely the combination of the lawsuit and President Trump declaring the firearms industry including gun stores as essential businesses.

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Three Of My Favorite Groups Unite To Take On Wake Sheriff

March 27, 2020 by 1 Comment

Wake County (NC) Sheriff Gerald Baker should be feeling a bit uneasy right about now. That’s because three of my favorite groups – Grass Roots North Carolina, the Second Amendment Foundation, and the Firearms Policy Coalition – have come together to file suit against Baker’s refusal to even take applications for the Jim Crow-era pistol purchase permit.

For those that don’t know, in North Carolina, you need a pistol purchase permit to purchase a handgun regardless of whether it is from a dealer or a private individual unless you possess a NC Concealed Handgun Permit. As I’ve written about it many a time, the law was passed in 1919 in an unspoken but well understood effort to keep African-Americans, Populists, and union backers disarmed.

The suit has been filed in US District Court for the Eastern District of North Carolina. The individual plaintiff is Kerry Stafford who decided a handgun was the proper firearm with which to defend herself and her family. After calling the Wake County sheriff’s department for an PPP application, she was refused.

The complaint alleges that Sheriff Baker has exceeded his discretion and has violated the Second and Fourteenth Amendments depriving Ms. Stafford and others of their constitutional rights under color of law. It asks that either an injunction be issued or that the requirement for a pistol purchase permit be waived until April 30th.

It is great to see these groups working together. For GRNC and SAF, it is a reprise of the joint efforts that led to the win in Bateman v. Perdue.

They issued a joint release which I have copied below:

GRNC, SAF, FPC File Federal Lawsuit Against Wake County, NC Sheriff Over Constitutional Violations

RALEIGH, NC (March 27, 2020) ­— Today, attorneys for an individual Wake County, North Carolina resident, Grass Roots North Carolina, Second Amendment Foundation (SAF), and Firearms Policy Coalition filed a federal lawsuit challenging Wake County Sheriff Gerald M. Baker’s recent actions infringing on Second and Fourteenth Amendment rights he announced as a response to the COVID-19 coronavirus pandemic. A copy of the lawsuit can be found at:

https://www.grnc.org/documents/Complaint-Wake-County-Filed.pdf

This latest case tracks a 2011 federal court victory in Bateman v. Perdue, also led by plaintiffs Second Amendment Foundation and Grass Roots North Carolina, which successfully challenged North Carolina statutes restricting firearms during states of emergency.

“Although Sheriff Gerald Baker claims his refusal to accept applications for pistol purchase permits and concealed handgun permits doesn’t infringe on individual rights, nothing could be further from the truth,” said GRNC president Paul Valone. “During this emergency, as always, GRNC intends to ensure that lawful North Carolinians have the means to protect themselves and their families.”

“Sheriff Baker is implementing by fiat what the Supreme Court struck down in Heller – a ban on a citizen’s right to purchase a handgun for the defense of hearth and home. This action cannot be allowed to stand,” said GRNC Director of Legal Affairs Ed Green.

“Times of emergency is when you need the ability to obtain the means of self-defense the most. Suspending that right is not acceptable. That is why this lawsuit is so important,” commented SAF founder and Executive Vice President, Alan Gottlieb.

“Sheriff Baker’s unconstitutional actions have and will deprive law-abiding, peaceable individuals the opportunity to obtain handguns, the ‘quintessential self-defense weapon’ according to the U.S. Supreme Court, in a time where the arms are most needed,” explained attorney and FPC Director of Legal Strategy, Adam Kraut. “Sheriff Baker’s actions to stop processing and issuing required  Pistol Purchase Permits violate fundamental human rights. We are proud to join GRNC and SAF in this fight to defend the rights of North Carolinians.”

Individual arms applicants/purchasers and retailers affected by ‘stay-home’ or shutdown orders can report potential civil rights violations to FPC’s COVID-19 Issue Hotline at www.FPChotline.org. 

Plaintiffs are represented by attorneys Ed Green, Raymond M. DiGuiseppe, and Adam Kraut.

Grass Roots North Carolina (www.grnc.org) is North Carolina’s most effective gun rights organization. GRNC was founded in 1994 as an independent, all-volunteer 501(c)(4) not-for-profit organization dedicated to preserving constitutional freedoms. The organization’s projects are primarily devoted to defending the individual right to keep and bear arms.

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing, and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms, advance individual liberty, and restore freedom.

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Some People Will Believe Anything!

December 22, 2019 by 1 Comment

March for Our Lives, the children’s crusade against firearms, has just shown their gullibility and ignorance. If it involves guns, they will believe anything an anti-gun politician spews out.

They have retweeted an absolute lie told by Pennsylvania Attorney General Josh Shapiro (D-PA). He wants people to have the impression that it was the National Rifle Association that sued him after his autocratic redefinition of what constitutes a firearm. Shapiro knew that throwing the name “NRA”, the term “ghost guns”, and tying it into crime was red meat for your average ignorant anti-gunner.

Look at the first page of the application for an emergency preliminary injunction. That action is being brought by a Pennsylvania FFL, a New Hampshire FFL, a manufacturer and dealer in what are called 80% lowers, and the Firearms Policy Coalition. No where do you see that the NRA is involved in this case. Indeed, if you had attended the Meeting of Members at the 2019 NRA Annual Meeting, you know that that old guard had nothing but disdain for attorneys Josh Prince and Adam Kraut. Don’t forget that Marion Hammer has called Adam “the enemy within”.

Shapiro sent out his original tweet the day after the application was filed. He knew or should have known that the NRA had nothing to do with this case.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives has consistently held that unfinished forgings or castings that are “completely solid and un-machined in the fire-control recess area” are not firearms and not subject to the Gun Control Act of 1968. See the attached determinations beginning on page 67 of the application for an injunction. Moreover, BATFE doesn’t even use the term “80% lower” or “80% frame” which is more of a marketing term than anything else.

As Josh Prince notes in his law firm blog, only the Pennsylvania General Assembly has the power to write law and it cannot be delegated. In other words, Shapiro’s “legal opinion” is making law and therefore invalid.

With regard to Shapiro’s claim that he is being sued by “companies that fund the @NRA”, only Polymer 80 exhibited at the most recent NRA Annual Meeting in Indianapolis. Having a booth at a national show which attracts thousands of gun owners is smart business for Polymer 80. While the NRA does gain some marginal revenue, “funding the NRA” is not Polymer 80’s purpose in being there. Just like we are all the “gun lobby”, so, too, we are all “funding the NRA” through our memberships.

Politicians and their PR flacks will say anything to push their position. Sometimes it is true. More often it is either the shading of the truth or an outright lie. I’ll let you decide what Shapiro was trying to do with his tweet.

March for Our Lives’ tweet, on the other hand, is a demonstrable lie. Like naughty children, they should be sent to their room with no TV, no phone, and no Internet to think about the consequences of their lie.

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Adam Kraut’s “Other Exciting Opportunities”

August 5, 2019 by 1 Comment

Adam Kraut in his open letter explaining why he was declining the opportunity to serve on the NRA Board of Directors said he wouldn’t have time to adequately devote to the position. This was “because of the magnitude of time, work, and attention these exciting and important new endeavors that I am currently involved in require.” We now know what those endeavors entail. Adam will be the new Director of Legal Strategy for the Firearms Policy Coalition.

The announcement from the FPC is below. Also joining Adam will be attorney Joseph Greenlee as Director of Research and attorney Matthew Larosiere as Director of Legal Policy.

August 5, 2019 – Firearms Policy Coalition (FPC) announced today the addition of three constitutional law attorneys with significant research, briefing, litigation, and scholarly experience to the FPC legal team.

“Recent news and presidential debates make clear that those who oppose freedom and the Constitution’s Second Amendment are gearing up to further infringe on fundamental human rights today and in the years to come, so building a unique, mission-focused team of scholars and experienced advocates is important to the future of our rights and liberties,” said FPC President Brandon Combs.

Joseph Greenlee, an attorney, researcher, and Second Amendment scholar, has joined the FPC Family’s legal programs team as its Director of Research. Mr. Greenlee, who formally joined the FPC Family two months ago in June, has already developed groundbreaking new research that has been central in three recent legal briefs filed in a federal appeals court, and other important briefs in state supreme courts and the United States Supreme Court, including one brief in support of the right to carry filed at the United States Supreme Court last week.

Matthew Larosiere, an attorney, scholar, and constitutional policy expert with a background in both firearms and taxation, has joined the FPC Family’s legal programs team as its Director of Legal Policy. Larosiere comes to FPC from the Cato Institute, where he conducted research, authored important legal briefs, and produced scholarship as a member of Cato’s Robert A. Levy Center for Constitutional Studies. He has written extensively on the subject of firearms and taxation both in print and online in outlets including National Review, Forbes, The Federalist, the Wall Street Journal, and The Truth About Guns.

Adam Kraut, an attorney, Second Amendment litigator, and educator, has joined the FPC Family as its Director of Legal Strategy. Mr. Kraut has a long track record of successfully litigating and representing clients in important firearm-related issues in both state and federal matters. In addition to his litigation background, Kraut, who once managed a licensed firearm retailer, has written for firearm-related publications including Recoil, a firearms lifestyle magazine, and writes and hosts the popular “The Legal Brief” video program.

“Each of these extraordinary attorneys has a deep commitment to individual liberty, freedom, and first principles. They are already hard at work in many areas of our key programs, including strong research, policy efforts, and legal action. Especially in light of recent demands for gun control, we look forward to their contributions and forming strategic coalitions with other liberty-promoting organizations,” concluded Combs.

As retired law professor and former NRA Board member Joe Olson commented on Facebook, “Beats a position (1 of 76) on the NRA Board.
Been there, done that, still have a flat spot on my head from bashing Marion.”

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Red Flag Laws Are Getting Trump’s Support

August 5, 2019 by

In his remarks today on the mass murders in El Paso and Dayton, President Trump called for the passage of red flag laws.

Fourth, we must make sure that those judged to pose a grave risk to public safety do not have access to firearms, and that, if they do, those firearms can be taken through rapid due process. That is why I have called for red flag laws, also known as extreme risk protection orders.

If a person is such a danger, they need to be confined. Mentally disturbed individuals as well as terrorists have used many other instruments besides firearms to kill large numbers of innocent people. Little more than two weeks ago, an disturbed individual killed 33 people in an anime studio in Japan by setting it in fire. This followed an earlier stabbing rampage in May that left one schoolgirl dead and 16 more injured. Islamofascists in Europe have used cars and trucks to run down people attending street fairs. They have attacked and killed people in New York City using rented trucks. So why just guns when flammables, knives, and vehicles have all been used in mass attacks in recent times?

Sebastian at Shall Not Be Questioned brings up an interesting point. Now that Chris Cox has left or been ousted from the NRA, it is left to Wayne LaPierre to try and control Trump’s worst impulses regarding firearms. I doubt Wayne is up to the task.

You can be sure that the gun prohibitionists will laugh in Trump’s face as they rush to pass more gun control without the quid pro quo that he thinks supporting it will get.

The Firearms Policy Coalition released a statement which I will quote in part below. I think they have a very good understanding of what these calls for more restrictions on our freedoms and liberties mean for us as individuals and as a nation.

It is disingenuous and immoral to ratify and incent evil acts of the very few by responding in kind with broad restrictions on the fundamental human rights of the People that pre-exist government itself. We will not accept this as a means of affecting change in a free society. The loss of human lives will always affect and change us, but they must never be allowed to alter our fundamental principles, freedoms, and commitment to individual liberty.

To be sure, our Constitution and society are at an unprecedented crossroads. Politicians and presidential candidates now openly call for a fundamental transformation of our system of laws: from a constitutional republic of free men and women founded in federalism and individual liberty, to a nation-state of subjects ruled with an iron fist from ivory towers and Washington, D.C.

Protecting the People and their human rights and property from the tyranny of mob rule and capricious political winds is a unique feature of our Republic—one that we fiercely defend even when doing so may be unpopular.

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Threat Of Prosecution?

February 4, 2019 by

I got a cryptic text from a friend this morning sending me to www.codeisfreespeech.com. That is the website which has established after the Attorney General of Washington State challenged Defense Distributed‘s settlement with the Department of Justice regarding ITAR. The District Court granted an injunction against Defense Distributed’s ability to put its files on the Internet. Note that it only enjoined Defense Distributed and a couple of others. It didn’t enjoin the any of the coalition of civil rights groups that set up www.codeisfreespeech.com.

Here is what I found when I went to the website.

It says that file access was being restricted due to a threat of prosecution. I don’t know which government entity is threatening them and infringing on the right of free speech but I’m sure we will find in the near future.

As an aside,  I sat next to two guys from Defense Distributed on part of my trip home from the SHOT Show. They told me that the Ghost Gunner 2 mini-CNC machine would now be able to finish the Polymer 80 Glock-ish 80% lower as they had released the code to do it.

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Bumpstock Ban, Part III (Updated)

December 27, 2018 by 1 Comment

Attorneys Joshua Prince and Adam Kraut have filed suit today in US District Court for the District of Columbia today on behalf of Damien Guedes, the Firearms Policy Coalition, the Firearms Policy Foundation, and the Madison Foundation. The lawsuit seeks an injunction as well as challenges the legal authority of Acting Attorney General Matthew Whitaker to issue such a rule when he has not been confirmed by the Senate.

From the plaintiffs release:

WASHINGTON, D.C. (December 18, 2018) — Today, attorneys for an owner of a “bump-stock” device and three constitutional rights advocacy organizations filed a federal lawsuit against the Trump Administration’s new confiscatory ban on firearm parts, additionally challenging Matthew Whitaker’s legal authority to serve as Acting Attorney General and issue rules without being nominated to the role and confirmed by the Senate or by operation of law. A copy of the court filings can be viewed at www.bumpstockcase.com.

The plaintiffs also filed a motion seeking a temporary injunction to prevent the Trump Administration from implementing and enforcing the new regulation. The lawsuit, captioned as Guedes, et al. v. BATFE, et al., is backed by Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and Madison Society Foundation (MSF), also institutional plaintiffs in the case.

“Bump-stocks” were legal under federal law and prior determinations of the Bureau of Alcohol, Tobacco, Firearms and Explosives until the agency issued a new final rulemaking today. Under the new rule, owners of the devices have just 90 days to surrender or destroy their property, after which they could face federal ‘machinegun’ charges that carry up to 10 years in prison and $250,000 in fines for each violation.

The plaintiffs are represented by attorneys Joshua Prince and Adam Kraut of Firearms Industry Consulting Group, a division of Civil Rights Defense Firm, P.C. Prince and Kraut previously filed a nearly 1,000-page formal opposition to the proposed regulation, which included a video exhibit showing the actual operation of a “bump-stock” device on an AR-15 type firearm. That opposition and its 35 exhibits can be viewed at www.bit.ly/fpc-bumpstock-reg-opposition.

“The ATF has misled the public about bump-stock devices,” Prince said. “Worse, they are actively attempting to make felons out of people who relied on their legal opinions to lawfully acquire and possess devices the government unilaterally, unconstitutionally, and improperly decided to reclassify as ‘machineguns’. We are optimistic that the court will act swiftly to protect the rights and property of Americans who own these devices, and once the matter has been fully briefed and considered by the court, that the regulation will be struck down permanently.”

In a January statement, Firearms Policy Coalition said that the federal “DOJ and BATFE clearly lack the statutory authority to re-define the targeted devices as ‘machineguns.’” Following that, in February, FPC also commented that as they “opposed the lawless manner in which President Obama often ruled by ‘pen-and-a-phone’ executive fiat,” they objected to and would fight “President Trump’s outrageous lawlessness here.”

“In its rulemaking, the Trump Administration is attempting to abuse the system, ignore the statutes passed by the Congress, and thumb its nose at the Constitution without regard to the liberty and property rights of Americans. That is unacceptable and dangerous,” explained Adam Kraut, an attorney for the plaintiffs. “It is beyond comprehension that the government would seek establish a precedent that it can arbitrarily redefine terms and subject thousands of people to serious criminal liability and the loss of property.”

Anyone who owns a “bump-stock” device and who would like to consider participating in the case should contact the FPC/FPF Legal Action Hotline at https://www.firearmspolicy.org/hotline or (855) 252-4510 (available 24/7/365) as soon as possible.

Count One of the lawsuit refers to Whitaker  as “purported Acting Attorney General” and challenges his authority to issue the final rule. They refer to 28 U.S.C. § 508(a) which states that the Deputy Attorney General shall exercise the duties of the office of Attorney General in case of a vacancy. Given this, they argue that Whitaker cannot “lawfully perform the duties and
responsibilities of Attorney General, including the execution on December 18, 2018 and
implementation of the Final Rule.” I think even the Democrats might agree with this.

Count Two of the lawsuit alleges violations of the Adminstrative Procedures Act. Specifically, it accuses BATFE of a) failing to provide records as requested with regard to Proposed Rule; b) failure to provide a 90-day comment period as there were website issues; c) failed to consider cost impact and ignored any analysis on compensating bumpstock owners for a taking; d) failed to provide a hearing when requested; and e) issued a rule that is arbitrary and capricious which is a violation of the APA.

Count Three alleges that the final rule exceeds the legal authority of BATFE because it rewrites clear statutory terms to suit itself. Even Sen. Dianne Feinstein herself has said that BATFE lacks the clear legal authority to ban bumpstocks. Now, of course, she wants Congress to do it but that would be legal.

Count Four says the final rule violates the Internal Revenue Code. Since NFA items are taxed, this is why this comes into play.

26 U.S.C. § 7805(b) provides that “no temporary, proposed, or final regulation relating to
the internal revenue laws shall apply to any taxable period ending before … [¶ … ¶] [t]he
date on which any notice substantially describing the expected contents of any temporary,
proposed, or final regulation is issued to the public.”

Thus, any rule against any bump fire stock manufactured before March 29, 2018 could not be enforced on them.

Count Five goes to the fact that the Final Rule bans bump fire stocks and says no compensation need be given. This the suit alleges violates the Takings Clause of the Fifth Amendment.

Count Six alleges an Ex Post Facto violation as bump fire stocks were previously classified by the BATFE to be legal. Changing the law after the fact would seem to violate Article I, Section 9, Clause 3 of the U.S Constitution.

Count Seven alleges that the Final Rule violates the Contract Clause of Article 1 of the Constitution by destroying the value of investments that had been made consistent with previous BATFE rulings and classifications of bump fire stocks.

Count Eight is the final count. It accuses BATFE of violation of the Freedom of Information Act for failing to provide records that were properly requested by the Firearms Policy Foundation months ago.

The prayer for relief seeks both a preliminary and permanent injunction against the enforcement of the Final Rule, a declaration that Matthew Whitaker did not have the legal authority to issue the Final Rule which makes it null and void, and for declarations that the aforementioned violations are Constitutionally impermissible.

The full 37-page complaint is here.

UPDATE:  The Guedes case had some changes today. First, the Firearms Policy Coalition dropped out of the lawsuit in order to file a separate lawsuit on procedural grounds. More on that lawsuit in a separate post but the intent is to have one lawsuit argued on the merits of the case – Guedes – and a second lawsuit challenging the Final Rule on the grounds it was issued by someone who didn’t have the authority to do so.

Second, in their amended complaint, the plaintiffs added Missouri St. Representative Shane Roden (R-Franklin County) and Florida Carry. Moreover, it dropped Count One (see above) which challenges the authority of the purported Acting Attorney General Matthew Whitaker to issue the rule. That will now be moved to a separate case involving only the Firearms Policy Coalition.

The goal in separating the issues is to have one case that will move quickly on procedural issues – FPC v. Whitaker – and a second case that move at the speed that it moves on the merits of the case. The challenge on procedural issues is an effort to stay the case in the short term.

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Linton V. Becerra – Another Second Amendment Lawsuit Against California

December 23, 2018 by 4 Comments

Chad Linton and Paul McKinley Stewart had screwed up in their younger days, paid their debt to society, and went on to lead lives in California as good, productive citizens. More importantly to our discussion here, the relevant courts in both Washington State and Arizona had explicitly expunged their non-violent felony convictions and explicitly restored their rights to own, possess, and purchase firearms. They further underwent multiple background and fingerprint checks and Linton actually had purchased firearms in California in the past. However, that is not good enough for California now. When they each went to purchase firearms starting in 2015, they were turned down the California Department of Justice and its Bureau of Firearm based upon Cal. Pen. Code §§ 29800 and §§ 30305.

Messrs. Linton and Stewart along with institutional plaintiffs the Firearms Policy Foundation, the Firearms Policy Coalition, the Second Amendment Society, the Calguns Foundation, and the Madison Society Foundation filed suit in US District Court for the Northern District of California on Thursday, December 20th. The parties are represented by attorney George M. Lee of Seiler, Epstein, Ziegler & Applegate of San Francisco. They named California Attorney General Xavier Becerra (D-CA), Acting Chief of the Bureau of Firearms Martin Horan, and Deputy Attorney General Robert Wilson as defendants.

Mr. Linton was stationed at NAS Whidbey Island when he was stopped for a DUI and trying to elude police. He pled guilty and was sentenced to time served (7 days) and probation with the promise that his felony conviction would be downgraded to a misdemeanor if he completed his probation successfully which he did. He received a certificate of discharge stating that all of his civil rights were restored. Fast forward from 1987 to 2015. Mr. Linton attempted to buy a handgun but was denied by the State of California due to the prior felony. He hired an attorney in Washington State to reopen the proceedings, withdraw his guilty plea, and enter a not-guilty plea. The Superior Court in Washington State vacated his prior conviction, set aside his guilty plea, and restored his rights.

On April 18, 2016, the Superior Court of the State of Washington, Island County,
further issued, upon Plaintiff’s petition, an Order Restoring Right to Possess Firearms pursuant
to Revised Code of Washington (RCW) 9.41.040(4). A copy of this order is attached as Exhibit
B. As part of that petition, and order, the court found that Plaintiff Linton was qualified,
pursuant to RCW 9.41.040(4), to have the right to possess firearms restored to him, and
accordingly, ordered “that Petitioner Chad Linton’s civil rights and right to possess firearms are
FULLY RESTORED pursuant to RCW 9.41.040(4).” (Id.) The court further ordered the
Washington State Patrol to transmit a copy of its Order to the Federal Bureau of Investigation.

When later in 2016 Linton attempted to purchase a rifle the California DOJ denied it and sent him a letter stating that he was ineligible due to being a felon. His California attorney made multiple requests to the California DOJ to clear up the matter and provided them with the Washington State court orders. Linton assumed the matter had been cleared up when he went to purchase a revolver and was again denied. Soon thereafter he was visited by agents of the California DOJ’s Armed Prohibited Persons System enforcement project who seized all of his firearms including a family heirloom. Bear again in mind that he was not a prohibited person under either Washington State or Federal law. Indeed Deputy AG Robert Wilson went so far as to say that they would not honor the Washington State court’s findings and that Mr. Linton try to get a presidential pardon as that is the only thing they would accept.

Mr. Stewart made similar successful efforts to get his record expunged by the State of Arizona. In 2016 the Yuma County Superior Court specifically sent aside his conviction and restored his firearm rights. The Arizona Department of Public Safety sent Stewart more documentation indicating the felony conviction had been set aside and his records had been corrected. Notwithstanding this, like Mr. Linton, he was denied when he sought to purchase a firearm.

Count One alleges the state has violated the plaintiffs’ rights under the Second Amendment by denying them the right to possess firearms in their home for self-defense.

Notwithstanding the non-violent nature of those
convictions, and the subsequent restoration of plaintiffs’ rights, the laws and Defendants’
policies, practices, and customs described herein, as applied to Individual Plaintiffs, amount to a
total and permanent deprivation of their fundamental, individual right to keep and bear arms and
ammunition, as guaranteed by the Second Amendment, and are therefore an infringement upon
those rights. The circumstances surrounding the Individual Plaintiffs’ convictions are therefore
and should be distinguishable from those persons that have been historically excluded from the right to keep and bear arms.

Count Two states that the defendants’ actions violate the Full Faith and Credit Clause of Article IV, Section 1 of the Constitution. Both the Constitution and subsequent Supreme Court decisions require each state to honor the valid judgments of courts in other states. The Supreme Court said in 1998 in Baker by Thomas v. General Motors Corp, that “A final judgment in one State, if rendered by a court with adjudicatory authority over the
subject matter and persons governed by the judgment, qualifies for recognition throughout the
land.”

The third and final count states that California is violating both the Privileges and Immunities Clause of Article IV, Section 2 and the 14th Amendment, Section 1. California law provides a process whereby someone convicted of a “wobbler” felony can get his or her firearms rights restored. A wobbler felony is one where the person could have been charged with either a felony or misdemeanor for the offense. If the person gets the felony downgraded to a misdemeanor under Pen. Code § 17(b), they would also be eligible to get their record expunged in its entirety under Pen. Code § 1203.4. Both would allow the person in question to have their firearms rights restored.

However, the State of California will only honor the reduction of these qualifying
felony convictions utilizing the statutes and the process described above. As shown throughout
this complaint, California refuses to honor the comparable process utilized by other states,
including the States of Washington and Arizona, shown above, even where the courts of those
jurisdictions expressly have set aside the felony convictions and have restored firearms rights to
such persons who have successfully completed their terms of probation. Accordingly, Defendants’ refusal to honor the set-aside or vacation of those felony convictions, and/or
restoration of firearm rights, by courts of those other states, amounts to unlawful discrimination,
favoring California’s citizens, since persons convicted of felonies in other states, in essence, have
no actual means to seek judicial restoration of their firearms rights here, or otherwise comparable
to the process of reduction under those mechanisms (including Pen. Code § 17(b)) described
above.

In essence, what you have is California saying that they will treat their restoration of rights as legitimate while that of other states as illegitimate for the purposes of firearms rights.

The plaintiffs are seeking both declaratory and injunctive relief under all counts as as applied to themselves and to others similarly situated. Of course, they are also seeking attorneys’ fees.

I’m not a judge nor a lawyer but if I had to hazzard a guess this will case will be decided on the Full Faith and Credit Clause and the Privileges and Immunities Clause. While it is obviously a denial of Second Amendment rights, the courts will go for the low-hanging fruit of Counts Two and Three.

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Sharp V. Becerra – Assault Weapon Registration Lawsuit – Moved To Federal Court

September 25, 2018 by 4 Comments

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In late August, California Attorney General Xavier Becerra (D-CA)  moved to have the lawsuit against him and the California DOJ over their ineptness implementing the new registration of bullet button weapons moved to Federal court. One would have thought that he’d want to keep a suit against the California Department of Justice in state court.
The case was moved to US District Court for the Eastern District of California and assigned to Judge Morrison England, Jr. 
Today, the plaintiffs which include a number of individuals and a number of civil rights organizations filed an amended complaint. Joining the plaintiffs is the Madison Society Foundation.  The amended complaint also adds a Section 183 claim for deprivation of due process rights.

While I might have been tempted to just say “screw it”, all the individual plaintiffs spent hours trying to comply with the law requiring registration of their firearms. Some of the plaintiffs are IT professionals and tech savvy. Nonetheless, the database system was so screwed up, most of them were not able to do so. The response of Cal DOJ was “you procrastinated, so tough”. From the complaint:

The following Monday, July 2, 2018,
Plaintiff (Terry) Jahraus contacted the DOJ for assistance, but the DOJ official told him, essentially, “it
was [his] responsibility to comply with the law [and] that he had all year to do so.” In other
words, DOJ blamed him for failing to register, even though its own statutorily-mandated
registration system was inaccessible and defective throughout the entire period he had attempted
to register it well before the deadline.

The joint release of the Second Amendment Foundation, Calguns Foundation, Firearms Policy Coalition, Firearms Policy Foundation, and the Madison Society Foundation is below:

SACRAMENTO, CA (September 24, 2018) — Attorneys for seven California gun owners and five advocacy organizations announced a new court filing in a now-federal constitutional rights lawsuit over the State of California’s “assault weapon” registration debacle. The case, Sharp, et al. v. Attorney General Xavier Becerra, et al., was originally filed in the County of Shasta Superior Court. But in late August it was removed to federal district court in Sacramento at the request of Attorney General Xavier Becerra and the DOJ defendants. The new court filing is online at https://www.firearmspolicy.org/sharp.

On August 24, the California Attorney General moved the case to federal court on the basis that the plaintiffs’ claims present a federal constitutional question, in addition to their state-based claims. That same day, the lawsuit was assigned to District Court Judge Morrison C. England, Jr. Two years ago, Judge England issued a bench ruling to enjoin a California statute that criminalized the use of Assembly video footage in political advertisements in a case brought by Firearms Policy Coalition and its Proposition 63 ballot initiative political committee, FPC Second Amendment Defense Committee.

“While it’s interesting that Attorney General Becerra doesn’t want his own state’s courts to hear how badly he mis-administered the mandated firearm registration program, we welcome the opportunity to show Judge England how the DOJ violated the constitutional rights of the plaintiffs and others like them,” said George M. Lee, lead counsel for the plaintiffs. “General Becerra’s actions and failures affected many gun owners from San Diego to Eureka. These law-abiding gun owners tried to register their weapons as required by law but could not do so because DOJ’s registration system was wholly inadequate to do the job. We are simply asking that those injuries be reasonably remedied so that those citizens are not subject to criminal liability for possessing illegal, unregistered weapons – solely as a result of DOJ’s failures.”

In the latest complaint, submitted last Friday, the plaintiffs added a claim for deprivation of their due process rights under Title 42, Section 1983 of the United States Code. The complaint also adds as an institutional plaintiff the Madison Society Foundation, a nonprofit organization that fights to protect the right to keep and bear arms.

The plaintiffs say that Becerra and the DOJ had a legal and constitutional duty to provide a functional registration system during the registration period, but that they were unable to exercise their own rights and legal duties “due to the Defendants’ actions and failures, including but not limited to the inaccessibility, defects, and/or non-functionality of the DOJ’s CFARS-based registration system.” The plaintiffs alleged that the DOJ’s ‘botched’ “assault weapon” registration scheme – including the error-prone Internet application for registration that often crashed completely – violated both the U.S. Constitution and California Constitution’s guarantees of due process. They also allege that the failed DOJ system violated the plaintiffs’ and other similar gun owners’ statutory rights.

“Even though the lawsuit is now in a federal district court, it’s still just a straight-forward case about how Attorney General Becerra and his DOJ didn’t do the job they were mandated to do,” explained Firearms Policy Coalition President Brandon Combs. “Their actions and failures violated the rights of thousands of California gun owners. It’s just that simple.”

Under California’s voluminous gun control laws, someone merely transporting an unregistered “assault weapon” to the shooting range – even if one believes it was legal and registered under other DOJ systems, like DROS – “is guilty of a felony” and potentially subject to a prison sentence of “four, six, or eight years.” Other crimes can be added on to that, including common separate charges like possession and manufacturing.

The complaint says the plaintiffs “seek an un-extraordinary result, compelled by the basic tenets of due process: That they simply be allowed to register their eligible firearms and comply with the law, and that the Attorney General, the DOJ, and their officers and agents similarly comply with the law by allowing such registrations and ensuring they are properly and timely processed through a functioning online database as they have been required by statute to do.”

“This unjust California government-created problem must be stopped immediately,” Second Amendment Foundation Founder and Executive Vice President, Alan Gottlieb, said in a previous statement. “Gun owners should not be put at risk due to state regulatory incompetence.”

The plaintiffs said that they would soon be asking Judge England for a preliminary injunction to protect affected gun owners’ rights and property while the case goes forward to summary judgement or trial.

The plaintiffs are represented by attorneys George M. Lee and Douglas Applegate of San Francisco-based Seiler Epstein Ziegler & Applegate LLP, as well as Raymond M. DiGuiseppe, a former California deputy attorney general and prosecutor. Attorneys Bradley Benbrook and Stephen Duvernay of the Sacramento-based Benbrook Law Group, who earlier this month secured a major First Amendment victory in a case that challenged a different California gun control statute that banned truthful, non-misleading speech about handguns, have been added to the legal team.

The lawsuit is backed by The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and Madison Society Foundation (MSF), also institutional plaintiffs in the case.

Californians who tried to register their firearms as “assault weapons” before July 1 but were unable to, or who suffered a privacy breach at DOJ, should contact the organizations’ Legal Action Hotline immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510.

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Even MORE Gun Control Laws In California?

September 10, 2018 by 3 Comments

Just when you thought California had more than enough gun control laws, the California legislature sends nine more to Gov. Jerry Brown (D-CA) for signature. With some sort of luck, he may – and I emphasize “may” – veto some of these laws. He has done that in the past.

Gun law attorney Adam Kraut discusses a number of these laws in this video from The Gun Collective. He also has some great alternative names to the official ones for these laws.

If you would like to know even more about these bill and would like to let Gov. Brown know your opinion on them, the Firearms Policy Coalition gives you that info in this release that went out on Friday.

FPC Seeks Veto of 9 Gun Bills from California Gov. Jerry Brown,

Asks for Approval of Public Records Act Bill

SACRAMENTO, CA (September 7, 2018) — Today, Firearms Policy Coalition asked California Governor Jerry Brown to veto nine “dangerous” gun bills that would “radically change” the state’s already-voluminous and complex laws. The advocacy organization also requested that Gov. Brown sign one bill that would help prevent state and local agencies from abusing the Public Records Act attorney fee provisions to chill the public’s right to access government files.

Historically, Brown signs most bills sent to him by the Legislature. But, FPC said, he does sometimes veto bills that don’t make sense to him and has rejected gun bills in the past. FPC’s legislative advocate and spokesperson, Craig DeLuz, thinks that Brown has plenty of reasons to reject the nine gun bills they oppose. “Some of these pieces of legislation are just headline-grabbing garbage because it’s an election year,” he said. “And Brown has vetoed some of these bills before, for good reasons. He may just put the brakes on expanding California gun laws in the last year of his last term to leave these decisions to the next governor.”

SB 1177, “just a few months ago an Education Code bill – would make it a crime to apply for the otherwise lawful purchase of a constitutionally protected firearm more than once a month. This bill is a case study of what happens when opportunistic legislators don’t have any real rules (or ethics),” FPC said in a letter. “The sky is blue, the sun sets in the west, and SB 1177 is yet another ego and animus-driven bill to put Senator Portanino’s name in bold print on yet another bill to attack the right to keep and bear arms.”

Another letter points out that San Francisco state senator Wiener’s SB 221 puts people and rights he doesn’t like in the crosshairs of the state. The bill, that would ban gun shows at the Cow Palace in Daly City if signed, was a health-related bill until it was “gutted and amended” just a few months ago. “In SB 221 the Legislature has targeted for especially unfavorable treatment those who would have the audacity to peacefully exercise their fundamental, individual rights protected under the First, Second, and Fourteenth Amendments,” FPC argued.

FPC-opposed bills that were passed by the Legislature include AB 1903, AB 1968, AB 2103, AB 2888, AB 3129, SB 221, SB 1100, SB 1177, and SB 1346. FPC supports SB 1244, a Public Records Act bill, by Bay Area Senator Bob Wieckowski.

Gun owners are encouraged to send Governor Brown a message voicing their opinion using FPC’s free Grassroots Take Action Tools at http://bit.ly/2018-ca-gov-brown .

FPC’s letters to California Governor Jerry Brown can be viewed or downloaded at http://bit.ly/fpc-2018-9-7-gov-brown-letters .