September 29, 2000
September 30, 2000
October 1, 2000
The afternoon's first panel titled, Gunowners' Rights and the Courts, moderated by former CCRKBA executive director, John Hosford, got off to a fine start with well-known pro-firearms civil rights attorney Richard Gardiner. He related how he was involved with Navegar (Intratec) and Penn Arms in their challenge to the 1994 gun ban.
At the time he spoke, Gardiner was awaiting the Supreme Court's
decision on whether or not to hear the case. Literally the day
after the conference, the Supreme Court, without
comment, refused to hear the case. He also expressed disappointment in an unfavorable ruling against Penn Arms, which was challenging ATF's interpretation that their Striker-12 shotgun was a destructive device.
Gardiner described the case brought by the NRA and LEAA against Janet Reno, challenging the Administration's retention of records under the National Instant Check System (NICS). The Court of Appeals, in a 2 to 1 opinion, said that the Administration had the power to retain records for up to 6 months. The two judges who wrote the opinion were Clinton appointees and the reason for the opinion was Clintonesque in its terminology. It seems that the Administration can keep records because Congress did not spell out what they meant by the word "records." Gardiner explained that they had filed a petition for a rehearing and the court ordered the government to file a reply to the petition.
But wordplay doesn't end with the NICS case. "Another
case is our challenge to the import ban. The Administration's
position is that the word 'or' means 'and'."
William Gustavson, a Cincinnati attorney on right to carry, had much to say about other aspects of firearm owner harassment. In Ohio, if you carry a concealed firearm and are stopped by police you are subject to arrest, strip searched, taken to jail, booked, and in debt to a lawyer. You are guilty until you can prove to a judge or jury that you have a legitimate reason for carrying a firearm. According to the Ohio Constitution, which takes a different position than the US Constitution, you have a right to bear arms for your defense.
Gustavson, together with fellow pro-gun attorney Tim Smith looked at the impossibility of the issue. "If you can't carry a gun concealed and you can't carry it exposed, then you don't have a constitutional right at all."
They filed a lawsuit citing both the state and federal constitutions. The city lawyers bragged to the media that they were going to take the case to federal court, but Gustavson and Smith liked the local judge they had, Bob Ruehlman, who ruled in favor of the gun industry in the city's lawsuit against it. In order to keep Judge Ruehlman, Gustavson dropped their federal constitutional challenges and filed under the due process clause and equal protection clause of the state statute governing concealed carry. Under the statute if you are a state employee, your boss can give you permission to carry a gun, but if you are a private citizen doing the same job as the state employee you can go to jail for carrying a gun. In the meantime, Handgun Control Inc. requested to come in on the case on behalf of the city of Cincinnati. Ruehlman remembered their meddling in the case against the manufacturers and denied their request.
The case is scheduled to be tried by Ruehlman and if he finds
in favor of Gustavson and Smith, Hamilton County, OH, will have
a law similar to Vermont where there is no requirement for a permit
to carry a firearm.
Smith then described what he called the Feely case. Patrick Feely was a pizza deliveryman who was stopped for a traffic violation and charged with carrying a concealed firearm. He claimed that he needed the gun to protect himself because he was carrying several hundred dollars at a time on delivery runs to construction sites. Smith represented Feely before Hamilton County Common Pleas Judge Thomas Crush. Crush acquitted Feely, recognizing Feely's argument of affirmative defense.
"The judge said that Ohio's concealed weapons law was flawed because it did not distinguish between criminals and people who carry guns for their protection," revealed Smith. Unfortunately, the judge's ruling will not prevent Feely from being stopped again and having to plead affirmative defense again.
Scott Mitzner, general counsel of the Illinois Rifle Association, followed Smith to the podium. He let it be known from the start that pro-gunners are in a fight for their lives and it's all-out war with the gun grabbers. He explained that his expertise was in investigation and that his job was to put unlawful judges, lawyers and politicians in jail. "I play to win. It's total warfare," he roared.
The Illinois Supreme Court passed a new law that states prosecutors, states' attorneys, attorneys general, and US attorneys, under Illinois license who engage in pretrial publicity such as passing out videos of gun arrests or passing out pictures of guns at pretrial can lose their licenses. That's where Mitzner says all gunowners can get into the battle and make a difference. "If attorneys violate the rules you people have to go out and file complaints. Complaints must be investigated and responded to. When you keep filing complaints and keep their licenses on the line you keep their attention."
Another tack is to fill all of the jobs that affect firearms
ownership with pro-gunners. "Go after every single job; every
job in the state police, every job in the department of natural
resources, every job in every county that can affect guns and
hunting. Take the jobs away from the liberal environmentalists."
While Illinois has its problems, California certainly doesn't take a back seat to anti-gun behavior as Chuck Michel, chairman, legislative committee, of the California Rifle & Pistol Association revealed. One of the real problems, says Michel, is the new and not improved 1999 amendment to the 1989 "assault weapons" law. The 1989 approach was to list the guns by make and model. The 1999 amendment defines "assault guns" by their features. "We challenged the 1999 amendment in the California Supreme Court and lost, but we are petitioning the US Supreme Court," he said.
Michel told how a police officer who owned a Maadi rifle was charged with having a prohibited AK-47 under the 1989 law. He had the officer register the rifle under the 1999 law and received a registration certificate from the California Department of Justice. So the gun that he is accused of possessing illegally has been declared by the state as not being an "assault weapon." "The Department of Justice is on their third set of revised regulations," he said.
Michel successfully sued the Los Angeles Police Department for their policy of seizing and not returning firearms without a court order. The LAPD has revised their policies and the city ended up paying attorney fees. He also got an injunction against the ban on the Great Western Gun Show. In the meantime, however, the county has been interfering with the contracts between the property management company and Great Western.
"We have filed a lawsuit for interfering with contracts and they have no legislative immunity. We will be seeking punitive damages against the supervisors in Los Angeles County," Michel said.
By the end of the year, the California Rifle & Pistol Association
will have a website that will publish all of the concealed weapon
policies and procedures of the anti-gun cities in California.
Linda Thomas, JD, of Billings & Solomon PC, detailed what is known as the Emerson case. Timothy Joe Emerson, at the time his wife was divorcing him, verbally threatened her boyfriend. The local court put a restraining order on him and since he was a gunowner he was immediately in violation of the law. The case never went to trial as US District Court Judge Sam Cummings found that denying his right to firearms ownership, because of the restraining order, was unconstitutional.
"We didn't think that the government would appeal the decision because the 5th Circuit is the most conservative circuit court in the United States, but they did," Thomas said. "And during the oral arguments, the three-judge panel ambushed the lawyers who were not quite prepared. The first attorney for the government in his opening statement hadn't gotten through his first sentence when he was interrupted by one of the judges. The second attorney for the government, arguing statutory interpretation, was interrupted by one of the judges who criticized his punctuation. It was a media show and it was as good as watching pro wrestling."
Pressed for time following Thomas, Dave Caplan, trustee, of
NRA's Civil Rights Defense Fund and an NRA board member, simply
stated, "I am not a gun nut but I'm a Second and Fourth Amendment
voluptuary in the sense that the Fourth Amendment has roots in
the concept that a man's house is his castle and fortress."
September 29, 2000
September 30, 2000
October 1, 2000