According to legal sources, it seems the Ninth Circuit has issued an order for an en banc hearing in Peruta. It might be the bit of pessimist in me, but I doubt this is good news for gun owners in the Ninth Circuit.
If you’re an attorney or just interested in firearms laws, then you shouldn’t miss the National Firearms Law Seminar at the NRA annual meeting.
I have to say that this year’s program really stands out for the combination of nationally known speakers, as well as the practical topics covered a bit more in-depth by some of the lawyers working on Second Amendment issues you may not have heard about yet.
For one, the lunch speaker is Glenn Reynolds of Instapundit fame. Having heard him speak before, I can say that he always delivers a really good presentation that informative as well as entertaining. The program notes that his lunch speech will look at “the transformation of the Second Amendment from an ‘embarrassing’ outlier to the Bill of Rights, to a provision that, like other parts of the Bill of Rights, protects identifiable individual rights in court.” Massad Ayoob will be giving a presentation on armed self-defense, highlighting mistakes “by the shooter at the scene, and by defense counsel in court.” That should be quite interesting, even for the non-attorney.
In my opinion one of the most interesting topics looks like it could end up being the session on the Brady Campaign’s recent litigation strategy against individual FFLs. The description of this talk by Cord Byrd notes that they have been “utilizing state laws including negligent entrustment, negligence per se and public nuisance to circumvent the protections afforded by the Protection of Lawful Commerce in Arms Act.” Then you have the always wonderful Sarah Gervase who packs so much practical information for attorneys into her topics each year talking about civil rights actions in firearms cases for this year’s Nashville seminar.
Registration is online, and there are discounts for various folks – law students, those who only want to attend the lunch speech by Glenn Reynolds, just a half day, and even for non-attorneys. There’s pretty much no way that you won’t walk out of the sessions learning something new if you choose to attend.
Even as someone who isn’t a practicing attorney and who doesn’t do the legal analysis for the blog, there’s usually something I pick up that gives me so much more context and understanding about the cases we hear about during the next year. More importantly, as I’ve met many people who maybe had a little minor offense, often nothing related to firearms at all, when they were 18 who are still paying a penalty with their firearms rights when they are 68 over the years, I’ve realized how invaluable it is that defense attorneys should know at least something about this area of law and how it impacts their clients.
Looks like we’ve had a few more favorable court rulings in the past few days. The first comes from the Middle District of Pennsylvania, in the case of Suarez v. Holder, holding that a past non-violent felony conviction was not sufficient to strip him of his right to keep and bear arms. This is an “as applied” challenge, meaning it did not challenge the felon-in-possession statute (18 USC 922(g)) on its face, but challenged it as applied to the plaintiff in this case. He was convicted in 1990 of carrying a firearm without a license in Maryland, a misdemeanor in Maryland, but one that can carry a penalty of up to three years in prison (and thus prohibiting under federal law). The more cases like this we get, the more cause we have to seek further redress through Congress, since these suits cost the federal courts time and money (both of which are in short supply). You can read more about the case here. Hat tip to Joe Huffman for the tipoff.
The other case is from the Florida Court of Appeal, Norman v. State. This court upheld the Florida restriction on open carry, but it’s a win because they adopted the reasoning that we’ve been pushing the courts toward. The court recognized there was a right to carry a firearm outside the home, but that the state may regulate the manner in which firearms are carried.
The Legislature “has a right to prescribe a particular manner of carry, provided that it does not ‘cut off the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, render the right itself useless.’” The Legislature is permitted to regulate the manner in which arms are borne for the purpose of maintaining public peace and safety, so long as any such regulation leaves available a viable carry mode.
The reason our legal advocates have been pushing for this interpretation is because it squares with a long, unfortunate tradition in some parts of the country of making concealed carry unlawful, while allowing open carry, and courts upholding them under the Second Amendment and state Second Amendment analogues. This ruling does beg the question of whether, say, New Jersey, for instance, could get around being forced to comply with federal law by legalizing open carry, but still requiring a relatively non-obtainable license for concealed carry. That doesn’t do anything to destroy the right de jure, but given that open carry is not socially acceptable in the Garden State, does it amount to a de facto destruction of the right? That’s probably why anti-evasion doctrine is going to become very important going forward.
The Seventh Circuit heard oral arguments in an assault weapons case. From the questioning in this article presented by the article, it looks to me like Judge Easterbrook isn’t very fond of the common use test.
But U.S. Circuit Judge Frank Easterbrook cut him off abruptly: “What if somebody decides to possess a bazooka?”
“It’d fall into a longstanding prohibition,” Vogts replied.
“No, there’s no such prohibition; they were only invented recently. It was once perfectly legal to own automatic weapons like Tommy guns.”
“But that dates back 80 years ago.”
Easterbrook was not convinced. “Yes,” he said, “but the Second Amendment dates back to the 18th century. Why does that matter? I don’t see how you can say fully automatic weapons are okay to ban because some states banned them in the 1950s. How is it rational to distinguish a ban laid down 150 years after the Second Amendment from one laid down 200 years after?”
I think it’s important to consider what the court was trying to accomplish with that presumption, which is that commonly used firearms are deserving of protection. I don’t think too much more needs to be read into than that, which is what I think the attorney for the plaintiff was trying to stick to. The argument Easterbrook is asking, I think, can be left for another case.
But I agree with Easterbrook that the common use test, and “longstanding prohibition” doctrine is imperfect, and was largely an effect of trying to exclude machine guns from protection. I think the test should be whether the arm in question is in common use by police as well. One should not just look at commonness in the civilian population. Any gun control law that has a police exception to it should automatically be treated with strong suspicion by the courts, and any arm that is part of ordinary police equipment should be unequivocally protected for civilians as well. That would include pistols, shotguns, semi-automatic rifles, and the standard capacity magazines that go with them. It would also include body armor, chemical sprays, tasers, and batons. It might even include true assault rifles, as they become ever more common in police inventories. I think such an evaluation would create a far more equitable balance between the people and the state than a narrow understanding of the common use test.
One reason it’s getting difficult to write about gun law lately is that the body of law is getting difficult for a part-time layperson to keep up with. That’s certainly the situation with this latest case going before the Florida Supreme Court. The media almost never gets the issues right in these cases, so I went and looked up the Appeals Court decision:
On December 29, 2011, the Bretherick family was on vacation in Central Florida, driving toward Downtown Disney, on a heavily travelled, six-lane divided road in Osceola County. Ronald Bretherick, the father, was driving in the middle lane westbound when, in his rearview mirror, he saw a blue truck rapidly approaching them. The truck almost side-swiped them as it passed in the right lane. As the truck passed the Brethericks, the driver, Derek Dunning, “stared at them in a threatening manner,” but made no statements or gestures.
Dunning’s truck cut in front of the Bretherick vehicle in the middle lane, slammed on the brakes, and came to a complete stop. There was no traffic or other impediment that required this action. Ronald Bretherick also stopped his vehicle, one to two car lengths behind Dunning’s truck. Dunning got out of his truck and walked toward the Bretherick vehicle. He was unarmed. Without exiting, Ronald Bretherick held up a holstered handgun, and Dunning returned to his truck without uttering a word.
After Dunning got back into his truck, the Defendant, Ronald’s adult son, got out of the rear passenger’s seat. He approached the driver’s side of Dunning’s truck within a few feet of the driver, while pointing the handgun at Dunning. The Defendant told Dunning to move his truck or he would be shot. Dunning misunderstood, and believed that the Defendant told him that if he moved, he would be shot. This slight but critical misunderstanding explains everyone’s subsequent actions.
The Defendant returned to his own vehicle and took up various positions, continuing to point the gun at Dunning. The Brethericks, Dunning, and several passersby all called 911. The Defendant’s mother and sister exited their vehicle and took refuge in a ditch on the north side of the road. The Defendant told his family that Dunning said he had a gun, but no one saw Dunning with a weapon, and the trial court found this not to be credible. At some point, Dunning’s truck rolled back twelve to eighteen inches toward the Brethericks’ vehicle. The police arrived and diffused the volatile encounter.
It’s difficult for me to see in this situation where the reasonable fear of grave bodily injury or harm was in order for Bretherick to be entitled to a self-defense claim. Again, this has nothing to do with a duty to retreat, the reasonable fear just wasn’t there by the facts presented. But the appeal that is proceeding to the Florida Supreme Court is based on the following question:
ONCE THE DEFENSE SATISFIES THE INITIAL BURDEN OF RAISING THE ISSUE, DOES THE STATE HAVE THE BURDEN OF DISPROVING A DEFENDANT’S ENTITLEMENT TO SELF–DEFENSE IMMUNITY AT A PRETRIAL HEARING AS IT DOES AT TRIAL?
NRA’s Amicus can be found here. I agree with NRA that the burden of proof should be on the state, but it’s difficult for me to see how in this case the state could not meet its burden even if that were the case. The Florida Supreme Court decision in Dennis v. State already started to outline the situation where pre-trial immunity can be claimed, by adopting this rule from a lower court:
Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.
NRA challenges the assertion that the burden is on the defendant to prove they are entitled to immunity, rather than the state proving they are not entitled to it. NRA argues the lower court’s decision was based on a Colorado law that is dissimilar to Florida’s, and goes on to argue that the state should have to disprove immunity beyond a reasonable doubt.
It’s difficult for me to understand how that doesn’t turn the immunity hearing into a trial in and of itself, with all the expense that would ordinarily accompany a trial. The advantage would be a chance to have a trial that at worst only results in another trial. It’s a bit of double jeopardy for the state.
There’s an interesting opportunity to listen to a federal case in front of the 9th Circuit today. If you have time and ability, you can tune in to hear Dave Hardy in US v. Rodman just after noon (Eastern).
Here’s a bit of background on the case.
UPDATE: It looks like it can be embedded, so here’s the video where it will be live-streamed later today.
The case is Binderup v. Holder, filed in the Eastern District of PA. The plaintiff was convicted years ago of Corruption of Minors for having sex with a 17 year old. In Pennsylvania, Corruption of Minors is a misdemeanor, but has a possible sentence of up to five years, so it applies for the purposes of a federal prohibition. Corruption in Pennsylvania tends to occur for one of two things, alcohol and sex. Often both. Furnishing liquor to minors in Pennsylvania can cost you your gun rights. So can sex between a 18 year old and 17 year old. The age of consent in Pennsylvania is 16, so the charge is not Statutory Rape, but Corruption of Minors is still an option for the prosecution.
This is an “as applied” challenge, meaning the statute was challenged as applied to this person’s individual circumstance. It was not a facial challenge to the statute as a whole. This would presumably apply to other persons similarly situated to this defendant. To read more details about this case, see Of Arms and the Law and also Alan Gura’s blog, who is the attorney who argued this case.
Slowly but surely, we are chipping away here and there. The other side may brag about our defeats, but we’ve also had some very important and circumstantial wins. There are a lot of people in Pennsylvania, who are no threat to anyone, who have gotten caught in this trap. Now there may finally be some relief for them.
It seems that as long as you have the right political views, you can break gun laws and get a slap on the wrist. If you don’t, you’ll end up facing serious charges and years in prison.
Compare these two situations:
1) In New York, an activist who promoted the SAFE Act that made carrying a gun on school property a felony even if the person has a license to carry, decided to carry his gun to a school after the gun control law took effect.
When the school was raided by SWAT officers and went on lockdown for a call about a man with a gun in the building, Dwayne Ferguson did not disclose that he had his gun. It was only when officers started patting down every person in the school did they find his gun. The school noted in their statement that he had an opportunity to disclose his possession to officers, and he chose not to do so, forcing everyone else to face a search.
For his refusal to disclose his accidentally carried, and otherwise licensed, firearm into a prohibited place, Ferguson’s charges were dropped from felonies and he received community service with a conditional discharge.
2) In New Jersey, a single mother from Philadelphia crossed a bridge with her license to carry a gun issued by Pennsylvania thinking that it applied across the border. It did not. When she was pulled over for a vaguely state violation, she willfully disclosed to the officer that she was a licensed gun owner.
For her cooperative attitude during her accidental carry situation, he had her arrested and the prosecutor considers her, as an otherwise lawful gun owner, such a danger to the community that he refuses to even consider the idea of a diversion program because it would mean she would not be put behind bars for years.
It would appear that having the right political views can go a long way in convincing a prosecutor not to press charges in these gun control cases.
I can’t tell you how much I loved seeing a post from Pennsylvania attorney Josh Prince asking anyone in Pike and Monroe Counties to contact him if their rights have been violated based on an article linked here earlier today. I would love to see more people considering legal challenges to behavior like this from law enforcement when they cross the line and violate someone’s rights.
UPDATE: And, he actually provides tips on how to document everything regarding the violation of rights that one would need to create a good case.
Also, check the comments of both posts and note the people who are horrified at the idea that some lawyer is trying to let people know what to do to prepare a legal case if their rights are violated. They don’t understand why anyone has an issue with rights being violated as long as they are told someone is keeping them “safe.”
With so many of the administration’s policies facing legal challenges, the increased likelihood that those cases could end up before more ideologically sympathetic judges is a reassuring development to the White House. Nowhere has this dynamic been more evident than at the District of Columbia court, which is considered the second most important appeals court in the nation, after the Supreme Court.
It’s not just SCOTUS, he’s been able to rejigger the entire system.