Current Litigation

Litigation Activities:

CALIFORNIA

Duncan, et al, v. Becerra.

This case was filed in May 2017, in response to both a state bill and Proposition 63 which placed a ban on the possession of magazines that have a capacity of more than ten (10) rounds. The lawsuit challenges California's regulatory scheme against standard capacity magazines on the grounds that it violates the Second Amendment, Due Process Clause, and Takings Clause of the United States Constitution.

In June 2017, the trial court issued an order staying enforcement of the possession ban while the case is being litigated. The State appealed the preliminary injunction order to the Ninth Circuit, but the District Court rejected the State's request to stay the case pending appeal. Briefing of the appeal was completed and oral argument was heard on May 14, 2018. On July 17, 2018, the Ninth Circuit affirmed the temporary injunction order.

In the District Court, plaintiffs filed a motion for summary judgment, which was argued on May 10, 2018. On March 29, 2019, the District Court issued a ruling in favor of the plaintiffs and permanently enjoined the California magazine ban.

California appealed to the United States Circuit Court for the Ninth Circuit. The case is now fully briefed. Oral argument has not yet been scheduled.

Duncan v. Becerra. National African American Gun Association, Inc. and Pink Pistols Amicus Curiae Brief.

An amicus brief on behalf of the National African American Gun Association, Inc. and Pink Pistols was filed on September 20, 2019. Please see case description above.

Flanagan, et al. v. Becerra, et al. (formerly Flanagan, et al. v. Harris, et al.).

In the aftermath of the Peruta en banc decision by the Ninth Circuit Court of Appeals, on August 17, 2016, a lawsuit was filed in the United States District Court for the Central District, Western Division, of California. The lawsuit seeks to force the court to decide whether or not California's entire regulatory scheme prohibiting both open and concealed carry violates the Second Amendment.

The State and Sheriff both filed motions to dismiss the claims concerning concealed (but not open) carry and the Equal Protection claims. Oppositions to the motions were filed. The court granted the motions to dismiss in light of Peruta. The case continued, but only the Second Amendment open carry claims were considered by the lower court. Both parties filed motions for summary judgment, which were argued on November 6, 2017. The Court ordered supplemental summary judgment briefs on November 6, 2017. Those briefs were filed on November 13, 2017.

In May of 2018, the District Court granted the State's motion for summary judgment. Plaintiffs appealed the case to the Ninth Circuit. The case was petitioned for en banc review. It was then stayed pending the Young v. Hawaii appeal, which case is stayed pending a decision in the New York State Rifle and Pistol Association, et al v. City of New York, et al. case.

Gurbir S. Grewal and Paul R. Rodríguez v. James Tromblee, Jr. d/b/a U.S. Patriot Armory, Jane and John Does 1-20, and XYZ Corporations 1-20. New Case Listing Report #759.

The applicant's attorney informs as follows:

The applicant is a small business owner in California who sells firearms related parts and accessories. Amongst other firearms related goods, the applicant advertises and sells 80% receivers, as well as parts kits which enable a purchaser to finish the 80% receiver into an unserialized firearm. These parts kits are legal to purchase and sell under federal law, and in all 50 states. New Jersey is the only state that prohibits the manufacture of a firearm for personal use without a manufacturing license. However, the applicable law does not regulate the sale of 80% receivers.

The New Jersey Attorney General filed a lawsuit against the applicant alleging that the applicant violated the New Jersey Consumer Fraud Act. The New Jersey Attorney General alleges that the failure to disclose the following constituted consumer fraud:

(1) that it is unlawful in New Jersey to purchase an 80% Receiver with the purpose of finishing it into a completed firearm and (2) that it is unlawful to assemble the receiver into a configuration that would violate New Jersey's 'assault firearms' law.

The applicant recently filed a motion to dismiss the complaint for failure to state a claim. "In an oral opinion, the Court expressed concern over the breadth of the theory of the case (and also that the AG appeared to be proceeding purely vindictively against a defendant that had already agreed to cease all sales to New Jersey) but denied the motion without prejudice in order to permit discovery." Discovery is proceeding.

Rhode, et al. v. Becerra.

California enacted ammunition sales restrictions, including requirements that all sales be conducted via face-to-face transactions, all ammunition sales be recorded with California's Department of Justice, and purchasers undergo a background check.

On April 26, 2018, a lawsuit was filed in the United States District Court for the Southern District of California challenging these restrictions on Second Amendment, Commerce Clause, Equal Protection Clause, and federal preemption grounds.

California brought a motion to dismiss the Commerce Clause, Equal Protection, and federal preemption claims; but not the Second Amendment claim. In June of 2018, the trial judge denied the State's motion to dismiss on all but the Equal Protection claim.

On July 22, 2019, due to reported problems with the background check system, Plaintiffs filed a preliminary injunction motion ... . The parties have since filed a joint status report requesting that all discovery deadlines be postponed until a ruling on the preliminary injunction motion and that the court rule without holding an evidentiary hearing after allowing the State an opportunity to respond to Plaintiffs' supplemental brief. A response from the court to those requests is expected any day.

This case is currently on appeal to the United States Circuit Court for the Ninth Circuit.

Rupp, et al. v. Becerra. National African American Gun Association, Inc. Amicus Curiae Brief.

An amicus brief on behalf of the National African American Gun Association, Inc. and Pink Pistols was filed. Please see case description above.

Mark Towns v. Raymond Harrell.

The applicant's attorney informs as follows:

The applicant has had a private shooting range on his property, which is zoned A/R, for many years. The plaintiff recently moved into the adjacent property. The plaintiff intends to open a rehab/detox center on his single family dwelling next to the applicant.

The plaintiff claims that the range is within 150 yards of his dwelling and that the range denies plaintiff full enjoyment of his property. The plaintiff has filed complaints with the sheriff's department. However, the sheriff's department has found no violations on the applicant's property. The Sacramento County Zoning Department has found no zoning violations on the applicant's property.

The plaintiff then filed a private nuisance lawsuit alleging that the applicant is not in compliance with the county zoning ordinances. The complaint seeks compensatory damages, punitive damages, and a permanent injunction prohibiting the applicant from shooting firearms on the applicant's property. The applicant filed a demurrer, which was denied.

The applicant's attorney anticipates that this matter will go to jury trial. The applicant will need to hire an expert witness to testify whether the applicant is in violation of any zoning ordinances. The plaintiff is running out of funds and has offered to settle for $1.00, on the condition that the applicant tear down his berm and range.

The applicant's attorney believes that the state's range protection law is not applicable because the range is not open to the public. The legal issues presented in this case include the doctrine of coming to the nuisance and the doctrine of exhaustion of administrative remedies.

Discovery is ongoing. On March 1, 2018, the plaintiff filed a second amended complaint with various counts alleging the applicant's violation of various sections of the Sacramento county code and the zoning code, public nuisance per se, trespass, extra hazardous activities, private nuisance, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. On March 5, 2018, the plaintiff filed a statement of damages in excess of $5,000,000.00. The applicant's attorney prepared a motion in limine on the grounds that declaratory relief is not available in a jury trial.

In the latest update the applicant's attorney informed that the applicant's homeowner's insurance, Nationwide Insurance, has agreed to provide coverage under a reservation of rights. Nationwide has appointed the applicant's attorney as Coomis counsel.

At a mandatory settlement conference the parties failed to settle the matter. The case is set for trial sometime in 2020.

Plaintiff's deposition was scheduled for July 22, 2019, but has been postponed by plaintiff's counsel. The applicant will file a motion to compel. The applicant has filed a motion for summary judgment and the parties are awaiting the court's ruling.

Ukiah Rifle and Pistol Club.

The applicant's attorneys inform as follows:

The applicant, Ukiah Rifle and Pistol Club, founded in 1945, is a members-only nonprofit corporation located in Ukiah, California. It provides shooting range facilities and services for both law enforcement and the local community on land owned by the City of Ukiah.

In 2018, two lawsuits were filed against the applicant.

On February 20, 2018, the Mateel Environment Justice Foundation filed a civil suit against the applicant seeking injunctive relief and civil penalties for violations of California's Proposition 65, alleging lead contamination.

One legal issue presented in the case is whether a nonprofit private club is subject to California's Proposition 65, also known as the Safe Drinking Water and Toxic Environment Act of 1986. This act regulates businesses with ten (10) or more employees. The applicant has no employees and operates with an all-volunteer staff. Another legal issue that has arisen in discovery is whether the plaintiff can obtain the applicant's membership list or whether the freedom of association and right to privacy protect against such disclosure.

Separately, Vichy Springs Resort, Inc., and its owner Gilbert Ashoff, have sued the applicant alleging that the applicant has allowed the release and/or discharge of lead from the premises, contaminating neighboring properties and nearby waterways. The plaintiffs allege that the applicant built a new range sound wall without predetermining the potential environmental impact of the additions, and that said construction invalidates the County's prior determination that the use of the land as a shooting range was a legal non-conforming use.

The applicant "recently prevailed on its motion for summary judgment against Mateel, and ... as a result all Prop 65 claims stand as dismissed at the trial level. The grounds were that insofar as URPC is an all-volunteer organization, it qualified for the exemption under Prop 65 (i.e. less than 10 employees)." The applicant expects the plaintiff to appeal.

Back to Top

COLORADO

Chambers, et al. v. City of Boulder.

The City of Boulder enacted an ordinance which prohibits the possession of "assault weapons" by citizens unless they obtain approval from municipal authorities through a certification process. The ordinance also prohibits "large-capacity magazines" that hold more than ten rounds of ammunition. The ordinance also raises the age of majority for purchasing and possessing firearms to twenty-one years of age.

Colorado has enacted preemption. A municipal ordinance that regulates firearms ownership and possession and conflicts with state law is preempted and may not be enforced.

On June 14, 2018, a lawsuit was filed challenging the ordinance on state-law preemption grounds. Boulder's ordinance conflicts with controlling Colorado state law on several material points because, under Colorado law, the possession of "assault weapons" is legal, "large-capacity magazines" are defined as those which hold more than fifteen rounds of ammunition, and the age of majority for purchasing and possessing firearms is eighteen years of age.

On June 19, 2018, the Boulder Ordinance was amended to remove an exemption from the ordinance for handgun magazines that are legal under state law, further exacerbating the conflict between state and local law. Plaintiffs filed an amended complaint to add this additional point of conflict between state and local law. Boulder moved to dismiss. The motion has been fully briefed and oral argument occurred on April 30, 2019. The case is currently in discovery.

The People of the State of Colorado v. Dennis Roberts.

The applicant's attorney informs as follows:

On July 21, 1994, the applicant was charged with assault in Moffat County, Colorado. The applicant relates that this occurred after he came home from work, and his girlfriend was "sitting at his table half-naked with her ex-husband, doing drugs." The applicant told both to get out of his house. After refusing, the applicant proceeded to throw the ex-husband out of the house.

The applicant agreed to a plea bargain upon assurances by the Court that this conviction would not be recorded as "domestic violence." On August 2, 1994, the applicant pled guilty to misdemeanor "3rd Degree Assault" in Moffat County Court, Colorado.

During 2016-2017, on three occasions, the Colorado Bureau of Investigation denied the applicant's attempt to purchase firearms based on the August 2, 1994 conviction. According to the Colorado Bureau of Investigation, the conviction was for "Assault 3rd Degree," which is classified as a disqualifying "misdemeanor crime of domestic violence" under federal law. The applicant appealed the denials without success.

The applicant informs that he would never have accepted the plea bargain if he had known that his gun rights would be affected.

The applicant's attorney argues that the 1994 conviction was obtained in violation of due process and is subject to a collateral attack under Colorado law because the failure of the applicant to seek relief within the applicable time frame of the conviction was "the result of circumstances amounting to justifiable excuse or excusable neglect."

The applicant's attorney plans to file a post-conviction petition for relief in the County Court, and if necessary, seek review by the Colorado Supreme Court. The applicant's attorney also plans to commence an administrative appeal of the denials by the Colorado Bureau of Investigation and, after exhausting his administrative remedies, to appeal the denials to the Moffat County District Court alleging abuse of discretion. Appeals or petitions could ultimately be filed with the Colorado Court of Appeals, Colorado Supreme Court, and United States Supreme Court.

The petition for post-conviction relief was filed June 7, 2018. On July 27, 2018, the State filed a response to the petition for post-conviction relief. On August 10, 2018, the applicant filed a reply brief.

On September 23, 2018, the County Court, Moffat County, Colorado, denied the applicant's motion of post-conviction relief on procedural grounds as being filed untimely and without justifiable excuse or excusable neglect.

Back to Top

FLORIDA

City of Weston v. Scott; Daley v. Florida; Broward County v. Florida.

Florida law broadly preempts the regulation of firearms and ammunition by municipalities, and it imposes penalties on local officials and municipalities who violate the preemption statute. These three consolidated cases are brought by local officials and municipalities challenging the penalty provisions of Florida law. The plaintiffs filed their complaints at various points during the late spring of 2018, and after obtaining consolidation of the three cases, Florida moved to dismiss the complaints on July 9, 2018 arguing that the plaintiffs lack standing and that their claims fail for various other procedural reasons. On July 19, the NRA filed an amicus brief in support of the State's motion to dismiss. The amicus brief explained the reasoning behind the penalty provisions and their importance for safeguarding the right to keep and bear arms, the traditional power that state legislatures have over municipalities, the lack of any First Amendment problem with the penalty provisions, and the lack of any legislative or sovereign immunity problem with the provisions.

The case is pending in the Circuit Court of the Second Judicial Circuit, Leon County, Florida.

Briefing on the motion to dismiss was completed by September 10, 2018 and oral argument occurred on September 28, 2018. The trial court denied the motion to dismiss.

Motions for summary judgment were due on January 21, 2019. The NRA filed an amicus brief in support of a motion for summary judgment by the State. The Court accepted the NRA's amicus brief on December 5, 2019. The case is still being briefed and no arguments have yet been scheduled.

Gilchrist County Sheriff's Office v. Deputy Jefferson Davis.

This case is one of the first cases to arise from a new Florida law, which came into effect on March 9, 2018.

On March 18, 2018, the applicant, Deputy Jefferson Davis, visited the Gilchrist County Sheriff's Office to see his girlfriend who was working as a dispatcher. The applicant was off duty and unarmed. During the visit, the applicant learned that his girlfriend was having an affair with another law enforcement officer at their agency. Upon discovering this information, the applicant "became highly upset, punched a file cabinet, kicked a door in at headquarters, and made statements that he wanted to shoot the co-worker who had been having and [sic] affair with his girlfriend."

Supervisory personnel met with the applicant and decided to have the applicant involuntarily committed for psychiatric evaluation under the Florida Baker Act which allows holding an individual for up to 72 hours. The applicant was transported to the mental health facility. After a brief interview with a psychiatrist, the applicant was informed that he did not meet Baker Act criteria, and was released. He was also given a discharge letter indicating he could return to work as a law enforcement officer.

However, the applicant was administratively suspended from duty as a law enforcement officer pending an Internal Affairs investigation. The Sheriff's Office also filed a petition for risk protection order. The petition for ex-parte risk protection order was granted by the Court. Per the Court's ex-parte order, all of the applicant's weapons, ammunition, and magazines were surrendered to the Sheriff's Office.

The Sheriff's Office attempted to block the applicant from accessing all witnesses who are employees of the Sheriff's Office, as well as blocking the applicant from accessing information pertaining to this matter, including all related public records request properly submitted under the Florida Sunshine Law. The applicant attorney filed a motion to compel discovery. The Court ruled in the applicant's favor, ordered some production of documents, and permitted discovery depositions to be taken of five employees of the Sheriff's Office.

The Court used a legally fabricated basis for renewal of a red flag order. There was no evidence of prospective harm to self or others in evidence. There were three psychiatrist statements that the applicant did not pose a risk of harm to himself or others, stating they are aware of his occupation and training and that he carried a firearm for work, and had access to firearms off duty.

As a result, the applicant has lost his employment and cannot gain employment as a police officer-even though he won a licensing hearing-because the red flag prevents him from being in possession of weapons.

An appeal was filed on the standard to maintain a restraining order when there is no evidence of current or future threat.

NRA v. Moody (formerly NRA v. Bondi)

On March 9, 2018, a lawsuit was filed in the United States District Court for the District of Florida, challenging Florida's ban on the purchase of firearms by adults between the ages of 18 and 21.

The State previously banned these adults from purchasing handguns, but it recently extended this ban to encompass long guns as well. Plaintiff argues that this ban violates both the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment.

On April 26, 2018, NRA moved for leave to amend its complaint to add a named individual plaintiff, allegations concerning another named individual harmed by the ban, and additional named defendants. Plaintiff simultaneously moved for leave to allow the named individuals to participate under pseudonyms. The State opposed this request. On May 13, 2018, the United States District Court issued an order denying the request to proceed anonymously. An interlocutory appeal was filed with the United States Court of Appeals for the Eleventh Circuit. The appellants' opening brief was filed on June 27, 2018. The Eleventh Circuit initially issued a jurisdictional question querying whether it had jurisdiction to entertain the appeal. Both parties agreed that jurisdiction exists, and on July 16, 2018, the Court noted probable jurisdiction. The appellees' brief was filed on August 15, 2018. Briefing was completed on October 19, 2018. The case below has been stayed pending resolution of the interlocutory appeal.

The anonymity issues was successfully negotiated out and the case is proceeding at the District Court level.

Back to Top

IDAHO

Nesbitt, et al. v. U.S. Army Corps of Engineers (formerly Elizabeth Morris, Alan Baker v. U.S. Army Corps of Engineers.

The applicant's attorney relates the following pertinent facts:

The U.S. Army Corps of Engineers administers 12 million acres of public, recreational freshwater lakes and rivers. These bodies of water account for thirty three percent of all U.S. freshwater fishing. Regulations adopted by the Corps in 1973 prohibit "the possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons." 36 C.F.R. § 327.13.

The Mountain State Legal Foundation, a nonprofit, public-interest law firm, has filed suit challenging the firearms restriction on behalf of Ms. Elizabeth E. Nesbitt and Mr. Alan C. Baker.

Ms. Nesbitt was issued an emergency concealed carry license by her local sheriff due to threats and physical attacks against her by a former neighbor. Ms. Nesbitt regularly uses Corps-administered public lands in Idaho, and would like to be able to carry her concealed firearm on these lands, as she does elsewhere, for protection.

Mr. Baker is an NRA certified instructor and lifelong outdoorsman. He is licensed to carry a concealed handgun in Utah, Idaho, Arizona and Oregon. Mr. Baker regularly uses Corps-administered lands for recreation and would like to carry his concealed firearm for protection while doing so.

The constitutional issue presented was "whether the Second Amendment protects individuals' rights to carry firearms for self-defense and to possess functional firearms in their temporary residences on federal lands. ... If MSLF prevails, the Corps will be barred from prohibiting visitors from possessing functional firearms when camping or recreating at its sites nationwide."

On October 13, 2014, the United States District Court granted summary judgment in favor of the plaintiffs and denied the government's motion for summary judgment. The district court held that 36 C.F.R. § 327.13 violates the Second Amendment and is unconstitutional and also enjoined the defendants from enforcing the unconstitutional regulation on Corps-managed property within Idaho.

On December 10, 2014, the federal government filed an appeal with the U.S. Court of Appeals for the Ninth Circuit. Briefs were filed between April 17, 2015 and August 12, 2015. Oral argument was scheduled for February 2017 and was then rescheduled for March 6, 2017.

In early March 2017, on the eve of oral arguments before the Ninth Circuit, the government filed an emergency motion to place the appeal in mediation. On March 3, 2017, the motion was granted.

The parties have reached a settlement agreement pursuant to which Ms. Nesbitt and Mr. Baker may, subject to local laws, carry firearms on U.S. Army Corps of Engineers properties. The United States Court of Appeals for the Ninth Circuit has accepted the settlement agreement. The permanent injunction issued by the Idaho federal district court declaring the Corps' regulation unconstitutional, remains in place, and the case remains stayed, while the Corps amends the regulation.

Nicholas Lion v. Thomas E. Brandon.

The applicant's attorney relates the following pertinent facts:

This matter involves the denial by the Bureau of Alcohol, Tabaco, Firearms and Explosives ("BATFE") of a proposed transfer of a silencer.

The applicant, Mr. Nicholas Lion, who resides near Sandpoint, Idaho, sought to purchase a firearm silencer from a licensed dealer. The Form 4 was submitted to the BATFE in November of 2014. In late March of 2016, the application to transfer the silencer was denied. The denial was based on two charges against Mr. Lion in 1987: one charge of disorderly conduct under N.J. Stat. Ann. § 2C:33-2 and on one charge of simple assault under N.J. Stat. Ann. § 2C:12-1(a)(1) which, according to the BATFE made the applicant a prohibited person under 18 U.S.C. § 922(g) (1). Both of these charges stemmed from a single incident in July of 1987. No disposition is shown for either charge in the local court records.

Under New Jersey law, the disorderly conduct charge is a petty disorderly person offense, which carries a maximum penalty of 30 days in jail and/or a fine of up to $500. The simple assault charge is a disorderly person offense, which carries a maximum penalty of six months in jail and/or a fine of up to $1,000.00. Neither is considered "crime" under New Jersey law and even a conviction on these charges would not make one a prohibited person under § 922(g) (1).

BATFE informed the applicant that the transfer would be denied if no disposition of these charges could be found. However, even a conviction would not disqualify him. BATFE also informed that the applicant would have to prove that that charges were not misdemeanor crimes of domestic violence under § 922(g) (9). This reverses the burden of proof. "If ATF has adopted a practice of reversing the burden of proof on minor assaults, and requiring the applicant to show that all such convictions are not domestic violence cases, the effect will be severe and unjustified under the law."

Mr. Lion filed a pro se lawsuit against the BATFE in federal district court in Idaho. On the advice of counsel, on June 9, 2016, Mr. Lion voluntarily dismissed, without prejudice, the pro se lawsuit he had filed in federal district court.

The applicant's attorney tried to resolve the matter through the BATFE and NICS. BATFE informed that the applicant would have to prove that that charges were not misdemeanor crimes of domestic violence under § 922(g) (9) and did not make one a prohibited person under § 922(g) (1).

The applicant's attorney drafted a declaration by Mr. Lion, which had been requested by the BATFE, and prepared an extensive package of documents in support of the declaration. These materials were sent to the BATFE on July 14, 2017. The documentation provided the requested proof that neither charges, even if they had resulted in a conviction, would have disqualified the applicant form possessing a firearm.

The applicant's attorney also argued that

... [T]he relevant statute, 26 U.S.C. § 5812(a), is mandatory and requires ATF to approve a transfer unless the transferee is affirmatively shown to be disqualified. That statute provides that "Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law." (emphasis added). Thus, unless there is proof that receipt or possession of the silencer by Mr. Lion would place him in violation of law, the transfer must be approved. As matters stand, the burden of proof is being reversed. It is not an applicant's burden to show that he has never been convicted of a disqualifying crime or of a misdemeanor crime of domestic violence. Unless proof of such a conviction is in possession of ATF, the transfer must be approved.

Since a resolution with the BATFE could not be reached, on November 1, 2018, the applicant filed a lawsuit against the BATFE in the District Court for the District of Columbia to prevent the agency from reversing the burden of proof. The government subsequently agreed to settle the case by granting approval of the applicant's application to transfer the silencer. The applicant submitted a new application for transfer, because the dealer in possession of the particular silencer had changed. The case has been voluntarily dismissed without prejudice pursuant to a stipulation by both plaintiff and defendant.

Thereafter, ATF did, in fact, approve the new paperwork to transfer the silencer on March 15. However, it was subsequently discovered that the silencer had a cracked tube. New paperwork will have to be submitted and approved by ATF to get a replacement silencer transferred by the manufacturer to Mr. Lion. Accordingly, this matter is not yet resolved.

Should there be any problem with that-which is not expected-the case can be reinstated.

State of Idaho v. Nicholas Brian Sunseri.

The applicant's attorney informs as follows:

On April 15, 2016, the applicant, Mr. Nicholas Brian Sunseri-who has no prior criminal history-was arrested and charged with domestic battery or assault in the presence of a child, and interfering with a 911 phone call. He was held in Kootenai County jail without bond over the weekend.

After spending the weekend incarcerated, he appeared, without the assistance of legal counsel, by video in front of an Idaho magistrate judge. The magistrate advised all defendants in the court room of their right to remain silent, their right to counsel, the appointment of counsel at public expense if the defendant could not afford an attorney, and the right to trial by jury.

When it was time for the applicant's case to be heard, the magistrate asked if the applicant recalled the aforementioned defendants' rights that the judge mentioned. The applicant indicated that he did. The magistrate then informed the applicant of the potential maximum punishment for conviction of domestic violence in front of a child; up to one (1) year in jail and a $1,000 fine. The magistrate conveyed the prosecuting attorney's plea offer; namely, the applicant's immediate release from jail - three (3) days already served - a $300.00 fine, and 2 years of unsupervised probation and the dismissal of charge for interfering with a 911 phone call.

The audio recording reflects that the applicant wanted to get out of jail as soon as possible, instead of continuing to be held without bond until the date of a future hearing, because the applicant needed get back to work, so as not to lose his job.

The applicant entered a guilty plea to a misdemeanor crime of domestic violence in Idaho. No one informed the applicant that by accepting this plea deal, he would permanently be deprived of his Second Amendment rights.

When the applicant was informed of the consequences of his domestic violence conviction, after obtaining counsel, he moved to withdraw the guilty plea, showing "just cause" by claiming that he was unaware of the impending loss of rights when entering that guilty plea. The motion was denied by the magistrate's court based upon Idaho law, which states that a magistrate judge need not advise a defendant of "collateral consequences."

The applicant appealed the magistrate's decision to the district court. The district judge affirmed the magistrate's decision but urged the applicant to appeal and to challenge the existing law. The district court judge stated the following:

This Court is not aware of any other misdemeanor offense that would result in the lifetime loss of a fundamental right. ... This court cannot conceive that the loss of a substantial right predicated upon a misdemeanor conviction should require anything less [than advisement of the loss prior to the plea]; particularly when a defendant is appearing via video from jail and is not represented by counsel.

...

It strains credulity to believe that a right described by former Justice Joseph Story as the 'palladium of the liberties of a republic' may be relinquished for life without informing a defendant that such a consequence exists. Yet it is so.

...

The loss of the right to possess firearm is a collateral consequence regardless of the legal fiction that characterizes it as such. Though it seems it should require, at a minimum, notice prior to the entry of a guilty plea. Particularly when a defendant is incarcerated and presented with a Hobson's choice to plead not guilty and potentially remain in jail and lose employment, or accept the plea offer and be released. Therefore, inasmuch as the Court would like to find that fairness and justice require that a defendant be informed of the loss of a fundamental right prior to entering a guilty plea for a misdemeanor charge of domestic violence, that is not currently the state of the law.

In regard to other criminal offenses, "collateral consequences" are disclosed prior to a defendant entering pleas; including, for instance, the consequences sex offender registry, and non-citizens convicted of deportable crimes, etc.

Yet if a misdemeanor defendant, like Mr. Sunseri, engages in a scuffle with his ex-wife, is implicated upon false accusations, has legitimate defenses to the charges, but chooses to take the state's deal rather than lose his job, he has fewer rights than the sex offender or non-citizen to know in advance that a domestic violence conviction will result in a lifetime ban on his fundamental right to own and possess firearms and ammunition. ... Mr. Sunseri challenges this loss of his Second Amendment rights because he did not receive notice of this consequence at the time he entered his plea and would not have pleaded guilty had he been properly advised.

The applicant's attorney frames the issues presented as follows:

Whether Mr. Sunseri should have been advised of the immediate deprivation of his right to own and possess firearms and ammunition upon conviction by Idaho courts prior to accepting his guilty plea to a misdemeanor crime of domestic violence.

Even if the Courts were not required to advise the defendant of this consequence to his fundamental rights, whether Mr. Sunseri should be permitted to withdraw his plea where he demonstrates he had meritorious defenses to the charges and would not have pleaded guilty had he known of this substantial deprivation of his Second Amendment rights.

The applicant filed his opening brief with the Idaho Supreme Court on November 14, 2017. The State of Idaho Attorney General's Office filed their brief on February 6, 2018. The applicant filed his reply brief on March 14, 2018. On June 8, 2018 oral argument was heard before the Idaho Supreme Court. The applicant's attorney informs that the "[a]rgument went very well and the Justices seemed very concerned both that the plea offer and the acceptance of this guilty plea were uncounseled and that the Magistrate and District Court on appeal did not engage in the required 'just cause' analysis to determine whether Mr. Sunseri had demonstrated the requisite just cause to withdraw his pre-sentencing guilty plea."

On October 31, 2018, the Idaho Supreme Court ruled in the applicant's favor, reversing the denial of the applicant's motion to withdraw his guilty plea and remanding to the district court with directions to consider the applicant's "grounds using a far more favorable 'just cause' analysis than the lower courts had allowed."

The applicant must now establish such "just cause" to the magistrate's satisfaction. A hearing is expected in December 2018 or January 2019.

Back to Top

ILLINOIS

Guns Save Life, Inc. v. Village of Deerfield.

This case is a challenge to an "assault weapons" and "large capacity" magazine ban enacted by the Village of Deerfield, Illinois. While Illinois law prohibits localities from enacting new assault weapons bans, Deerfield argues that the ban actually is an allowed amendment of a prior "assault weapon" storage regulation. The plaintiffs disagree, and they argue that the ban therefore is preempted. They also argue that the ban is preempted by State hunting law and that it is an unconstitutional taking without just compensation. As originally drafted, the Deerfield ordinance also defined "large capacity magazines," but, despite public statements by Village officials to the contrary, did not actually ban them. Plaintiffs sought a declaration that large capacity magazines are not banned or, in the alternative, that any ban is preempted or an uncompensated taking.

On April 19, 2018, the plaintiffs' filed a lawsuit in the Illinois State Court, Lake County challenging the ban. On July 12, 2018, the Court issued a temporary restraining order blocking enforcement of the ordinance. The Court concluded that the ordinance's ban on certain popular firearms was preempted by Illinois law and that the ordinance did not actually prohibit possession of any magazines. The Village subsequently amended its ordinance to expressly ban "large capacity" magazines but issued a press release acknowledging that the ban will not go into effect so long as the temporary restraining order remains in place.

On October 12, 2018, oral argument on a motion to convert the temporary restraining order to a preliminary injunction was held. On October 26, 2018, the plaintiffs moved for summary judgment and a permanent injunction. The defendant responded on November 30, 2018. Plaintiffs filed a reply brief on December 14, 2018. On March 22, 2019, the trial court granted plaintiffs' motions for summary judgment on all claims, except the Takings and Eminent Domain claims, and it issued the permanent injunction barring enforcement of the ordinances.

The Village of Deerfield appealed to the Second District Appellate Court. In late July 2019, the Court ruled that the appeal was not properly filed and was out of time to be corrected by the defendants.

Subsequently, in the trial court, after briefing and oral argument as to whether the consolidation was a full merger or not, the trial court held that the consolidation was a full merger. The defendant then filed a new notice of appeal and the case is back in the Second District Appellate Court to address the merits of the trial court's March 22 ruling.

The parties are to submit their briefs by the end of February 2020.

Guns Save Life INC., DPE Services, Inc. d/b/a Maxon Shooter's Supplies and Indoor Range, and Marilyn Smolenski, v, Zahra Ali, Thomas J. Dart, County of Cook, Illinois.

This case is a challenge to both an ammunition "violence tax" and to a gun tax imposed by Cook County, Illinois in 2015.

The defendant filed a motion to dismiss in March 2016 which was denied. The plaintiffs filed a motion for summary judgment. In February 2017, the Court granted a motion by the defendant to delay briefing during discovery. After limited discovery, the defendant cross-moved for summary judgment on November 6, 2017. On August 17, 2018, the district court granted the defendant's motion for summary judgment. The plaintiffs appealed to the Illinois Appellate Court, First Judicial District. On July 19, 2019, briefing in the Illinois Appellate Court concluded. The parties await action by the court.

Shawna Johnson v. Illinois State Police.

The applicant's attorney relates the following pertinent facts:

The Illinois State Police revoked the applicant's Firearms Owner's Identification ("FOID") card after learning of a 2001 misdemeanor battery conviction involving her ex-husband. The applicant had plead guilty to that charge after the prosecutor assured her that the conviction would not permanently prevent her from holding a FOID.

After the revocation, the applicant commenced a pro se action, in the Circuit Court for Wabash County, against the Illinois State Police and obtained a ruling that substantively indicated that she could obtain relief notwithstanding the federal prohibition, based on the rationale in Coram v. State, 996 N.E. 1057 (Ill. 2013). The issue was whether a circuit court can remove federal firearms disabilities for individuals who have been convicted of a misdemeanor domestic violence charge. Citing 430 Ill. Comp. Stat. 65/10(b), the Illinois State Police argued that circuit courts cannot grant relief because Illinois statutory law prohibits restoration of rights to those prohibited from possessing firearms pursuant to federal law. The applicant argued that federal law enables the removal of a federal firearms disability if one's "civil rights" have been restored. The applicant also argued that 18 U.S.C. § 922(g) (9) as applied to her is unconstitutional under the Second Amendment.

An evidentiary hearing was held in this matter on January 20, 2016. Subsequently, the court directed each side to submit post-hearing briefs by May 13, 2016. A hearing took place on August 20, 2018, at which the judge scheduled another follow-up conference for September 17, 2018. On October 1, 2018, the court finally issued an order, holding the following federal and state laws and regulations unconstitutional as-applied:

430 ILCS 65/8(n)-which authorizes denial or revocation of a FOID when federal law prohibits the possession of firearms;

430 ILCS 65/10(b) & (c)(4)-which prohibits granting relief from FOID disabilities when it would "be contrary to federal law";

20 Ill. Admin. Code § 1230.20(h)-which directs ISP to deny FOID applications from individuals "prohibited under federal law from possessing or receiving a firearm"; and

18 U.S.C. § 922(g)(9)-which prohibits anyone with a conviction for "a misdemeanor crime of domestic violence" from possessing firearms.

The court reversed the decision of the director of the Illinois State Police in its denial of petitioner's request to reinstate/reissue her a FOID card and ordered the Illinois State Police to reinstate and reissue to the applicant a FOID card.

The Court reasoned that the applicant has no means available to obtain a restoration of her Second Amendment rights. Unlike several other individuals who have challenged the application of the Lautenberg Amendment in Illinois, the applicant had applied for-and been denied-a gubernatorial pardon. Many Illinois courts have declined to reach similar Constitutional claims on the ground that they were premature because the person asserting those claims had not sought to obtain a pardon. See, e.g., People v. Heitmann, 2017 IL App (3d) 160527, ¶ 40; Baumgartner v. Greene Cnty. State's Attorney's Office, 2016 IL App (4th) 150035, ¶ 61. The two Justices who dissented in Coram had considered the constitutional claim premature in light of the fact that the plaintiff had not requested a pardon. See Coram, 2013 IL 113687 at ¶¶ 132-34 (Theis, J., dissenting). Because the applicant had attempted to obtain a pardon, the Court distinguished these authorities.

On October 15, 2018, the applicant filed a petition for an award of attorney's fees and submitted a brief in support of the petition. The basis for the petition is that the court found an administrative rule of the State invalid. The court has stayed that petition pending the appeal noted below.

The Illinois Attorney General's Office moved for a stay on October 22, 2018. The State appealed to the Supreme Court of Illinois and filed its notice of appeal on November 1, 2018. The Court stayed that part of the order that directed Illinois State Police to issue a new Firearms Owner's Identification card.

At the Illinois Supreme Court, we ... rely on two alternative arguments. First, we ... argue that a Circuit Court's order granting relief under 430 ILCS 65/10 is sufficient to invoke the "civil rights restored" exception contained in the 1968 Gun Control Act. See 18 U.S.C. §921(a)(20) & (33)(i). ... [W]e intend to advance the conclusion the Supreme Court of New Hampshire reached in DuPont v. Nashua Police Dep't, 113 A.3d 239, 167 N.H. 429 (2015)-to wit, that by "remov[ing a] restriction . . . [on the] civil right to keep and bear arms," a state can "thereby restore [an individual]'s civil rights within the meaning of § 921(a)(20)" & (33)(i). Id. at 250, 167 N.H. at 442-43. Next, we ... argue that (as the Circuit Court found) the incorporation of the Lautenberg Amendment to perpetually deny the right to keep and bear arms is unconstitutional as-applied to Ms. Johnson. ...

On May 8, 2019, the State filed its Appellant's Brief. On July 29, 2019, the applicant filed the Brief of Petitioner-Appellee. The State's Reply Brief was filed on September 16, 2019. The Supreme Court of Illinois conducted oral argument on November 19, 2019.

Another case, People v. Brown, in which the circuit court held the FOID Act unconstitutional on the facts presented, is also currently pending before the Illinois Supreme Court. "In light of the fact that the Brown case concerns the constitutionality of the FOID Act as a whole (at least in the context of home possession), we have added a section ... that also addresses this issue."

On January 24, 2020 12:09 PM, the Illinois Supreme Court, in an unanimous (7-0) decision, concluded that restoration of gun rights under the FOID Act met the "civil rights restored" language in the 1968 Gun Control Act. https://courts.illinois.gov/Opinions/SupremeCourt/2020/124213.pdf.

Back to Top

INDIANA

Jefferson County Plan Commission v. Joseph Chapo, Sherry Chapo, and Deputy Big Shot, LLC.

Jefferson County Plan Commission v. Joseph Chapo and Sherry Chapo.

Joseph Chapo and Sherry Chapo v. Jefferson County Plan Commission.

Joseph Chapo, Sherry Chapo, Deputy Big Shot, LLC v. Jefferson County, Indiana; Darrell M. Auxier, R. Patrick Magrath, Jefferson County Plan Commission, Warren Auxier, Jeffrey Daghir, Lonnie Mason, Gene Riedel, Jerry Yancy, Dennis Boyer, Virginia Franks, Laura Boldery, Jefferson County Board of Zoning Appeals, James Griffith, Robert Jacobson, Mike Shelton, Alana G. Jackson, Jesse Duquette, Tamara Duquette, Jeffrey Sharp, Jefferson County Circuit Court, Court of Appeals of Indiana.

The applicants' attorney informs as follows:

In 1991, the applicants, Joseph and Sherry Chapo, purchased their property in Deputy, Indiana and set up a shooting range. They own and operate the only public shooting range in Jefferson County, Deputy Big Shot, LLC

In August of 2012, Jefferson County passed the Jefferson County Zoning Ordinance. The ordinance did not address shooting ranges or gun shops in the Agricultural Zone in which the Chapos' property was now located. The Chapos made an inquiry with the Jefferson County Plan Commission regarding both uses, and were instructed by the Secretary of the Jefferson County Board of Zoning Appeals and the Jefferson County Plan Commission that a permit was required for each use. The applicants filed the required applications. On October 2, 2012, the Board of Zoning Appeals approved the gun shop application and deferred the range application. On November 11, 2012, the Board of Zoning Appeals denied the range conditional use application.

On October 24, 2012, the applicants "organized and registered Deputy Big Shot[,] LLC in Indiana to include a gun shop and expand the original shooting range to accommodate the public." By January 2013, Deputy Big Shot, LLC had applied for and received a federal firearms license and had registered with Indiana to sell handguns.

On November 7, 2012, the Jefferson County Board of Zoning Appeals denied the range conditional use application solely on noise, without any such provision in the cited ordinance and contrary to state law.

On March 31, 2016, neighbors Jesse and Tamara Duquette filed a complaint with the Jefferson County Zoning Officer against Deputy Big Shot, LLC and the Chapos. On April 6, 2013, the Zoning Enforcement Officer served the applicants with an enforcement order to discontinue the illegal use of the land, building, and structures. On April 19, 2016, the applicants responded in writing to the zoning enforcement order. A public hearing regarding these alleged zoning violations was held on April 20, 2016. On April 27, 2016, the Zoning Enforcement Officer issued an amended enforcement order.

On May 25, 2016, the Jefferson County Plan Commission filed a complaint and injunction against the Chapos only, even though Deputy Big Shot, LLC was actually operating the shooting range. On November 17, 2016, The Madison County Circuit Court issued a preliminary injunction enjoining Joseph and Sherry Chapo from operating the range. The applicants filed an interlocutory appeal on December 14, 2016.

Deputy Big Shot, LLC was added as a Defendant in an amended complaint on December 20, 2016. On January 4, 2017, a preliminary injunction was issued enjoining Joseph and Sherry Chapo and Deputy Big Shot, LLC from operating the range. The applicants appealed the granting of the preliminary injunctions to the Indiana Court of Appeals. On June 15, 2017, the applicants filed their appellate brief. On August 14, 2017, Jefferson County Plan Commission filed its appellate brief and a motion to strike. On October 2, 2017, the applicants filed their reply brief.

In the meantime, litigation continued in the trial court. The applicants filed a 12(b)(6) motion to dismiss on February 1, 2017 based on the following grounds:

The Amended Complaint fails to state a claim upon which the Court can grant relief for the following reasons:

1. JCPC fails to establish an ordinance or provision of an ordinance was violated;

2. The attempt to enjoin the defendants from operating a shooting range is in violation of the 2nd Amendment right to bear arms and Article I, Section 32;

3. The attempt to enjoin the Defendants from operating a shooting range is prohibited by the Jefferson County Home Rule; and

4. The attempt to regulate the Defendants from operating a shooting range is in violation of the Indiana Range Protection Act IC § 14-22-31.5[.] On July 14, 2017, the Jefferson County Plan Commission filed a citation for contempt and a motion to enforce.

On September 7, 2017, the trial court heard the applicants' motion to dismiss and the Jefferson County Plan Commission's motion for contempt. On October 17, 2017, the trial court issued an order denying the applicants' motion to dismiss and granted the Jefferson County Plan Commission's motion for contempt.

On October 26, 2017, the Jefferson County Plan Commission filed a motion for a permanent injunction. On October 30, 2017, the circuit court stayed the proceedings pending the appeal. The stay, however, did not affect the preliminary injunctions nor the finding of contempt.

On November 17, 2017, the applicants filed, with the Indiana Court of Appeals, an emergency motion to stay the proceedings in the trial court pending the appeal. On May 29, 2018, the Indiana Court of Appeals denied the motion for an emergency stay and issued an opinion upholding the Circuit Court's opinion. Both the November 17, 2017 order and the January 4, 2018 order were upheld by the Court of Appeals. On June 26, 2018, the applicants filed a petition for rehearing, which was denied on November 1, 2018.

The original judge recused himself in November of 2017 and, on December 6, 2018, a new judge was assigned to the case. On January 11, 2019, the new judge lifted the stay. On February 10, 2019, the applicants filed an answer. On February 11, 2019, the applicants filed a motion for judgment on the pleadings. On February 20, 2019, the JCPC filed a response and a motion to strike to which the applicants field a reply and a response. On February 26, 2019, the applicants filed responses thereto. A hearing occurred on July 12, 2019 on the motions. On November 25, 2019, the Court ruled adversely on the applicant's motions but denied Jefferson County's motion for sanctions against the applicants.

A scheduling conference was held on September 17, 2018 and a case management schedule was issued. Trial has been scheduled for December 6, 2019 but, per the order of November 25, 2019, the trial date will be reconsidered at a pre-trial conference set for December 2, 2019.

On May 26, 2018, the applicant's filed a 1983 action in the United States District Court for the Southern District of Indiana.

The ... 1983 action is based on the violations of the plaintiffs' 2nd Amendment rights by the defendants .... :

1. The Jefferson County Board of Zoning Appeals had no Constitutional authority, nor legal authority to require the Chapos to obtain a conditional use permit in 2012, based on the Ezell case, Indiana Shooting Range law, and the fact that the Jefferson County Zoning ordinance had no provision addressing shooting ranges;

2. The Jefferson County Plan Commission had no Constitutional authority, nor legal authority to initiate an action against the Chapos in 2016, based on the Ezell case, Indiana Shooting Range law, and the fact that the Jefferson County Zoning Ordinance had no provision addressing shooting ranges. Without a violation of a provision the Jefferson County Plan Commission had no jurisdiction [to] initiate the lawsuit;

3. [The state court] had no subject matter or personal jurisdiction to hear the case.

...

The actions of some of the defendants in 2012 also ignored and violated the Indiana Shooting Range statutes, Chapter IC §14-22-31.5 which protected shooting ranges in existence prior to July 1, 1996. The statutes protected said ranges from noise liability (IC §14-22-31.506) and allows said ranges to "Expand or increase the membership of the shooting range or opportunities for public participation at the shooting range," (IC §14-22-31.5-7(3)). The Indiana Shooting Range statutes prohibit local government from pursuing shooting ranges for activities falling under the Shooting Range statutes. Any actions by local governments in violation of the Shooting Rage statutes have strong subject matter jurisdiction implications. The 1983 action also sought preliminary injunctions against the Jefferson County Circuit Court and the Indiana Court of Appeals.

Two Rule 12(b) motion to dismiss were filed by some of the defendants, and the rest of the defendants filed an answer on July 23, 2018. On August 27, 2018, the applicants filed responses to both motions to dismiss. The Court has not yet ruled on these motions. Depositions have been scheduled for February 2020.

Jerry W. Wise, Kathy Lee Wise, David A. Drake and Brozia Lee Drake v. Precision Gun Range, LLC, and Lane L. Jorgensen, Katheryn A. Jorgensen, as the trustees of the Jorgensen Family Trust v. Precision Gun Range, LLC.

The applicant's attorneys inform as follows:

The applicant, Precision Gun Range, LLC, located in Spencer, Indiana, is a for-profit organization providing sport shooting and self-defense shooting training to the public.

In 2017, two separate lawsuits were filed in the Owen County Circuit Court, Indiana, against the applicant by downrange land owners who "appear to have development interests." The complaints allege that projectiles from the applicant's rifle range have impacted their properties. The complaints alleged negligence, nuisance, and trespass, and seek a permanent injunction and actual, consequential, and punitive damages.

According to the applicant, other nearby land owners have allowed hunters to shoot on their own land and there is also a private range adjacent to the applicant's range. The applicant maintains that the projectiles allegedly impacting the plaintiffs' property do not originate from the applicant's range.

The State Police completed an initial investigation of the trespassing projectiles and concluded that the applicant's range was the source. However, "the investigation failed to gather the type of evidence required to draw expert conclusions concerning the point of origin of projectiles found at such a distance," and did not involve experts with long range ballistics expertise.

The plaintiffs attempted to persuade the local zoning board to take enforcement action against the range. After a February 2, 2018 public meeting, the Board of Zoning decided not to take action against the range. In May 2018, new complaints were filed against the applicant by a neighbor. Subsequently, the applicant completed the safety enhancement structures that the range agreed to put in place to satisfy the Board of Zoning Appeals.

With prepared expert opinions and safety enhancements in place, the applicant forced the Board of Zoning Appeals' hand by reopening its range-despite the Board of Zoning Appeals' initial refusal to allow the resumption of operations-effectively forcing the Board of Zoning Appeals to go to court or to approve the reopening. In June of 2019, the Board of Zoning Appeals voted unanimously to allow the applicant to reopen its rifle range.

However, the litigation continues. The two cases pending in state court against the range have been consolidated. September 4, 2019 was the mediation deadline and trial is scheduled for January 2020. The applicant is preparing to renew motions for summary judgement in these consolidated cases.

On July 17, 2019, a third lawsuit was filed in the Owen County Circuit Court, Indiana, against the applicant by the same individuals who are plaintiffs in the two prior pending lawsuits. The new lawsuit seeks to overturn the June 2019 unanimous decision by the Owen County Board of Zoning Appeals that allowed the applicant to resume operation of its rifle range. The new lawsuit also includes a self-styled private enforcement, public nuisance type claim concerning alleged bullet impacts to down range residences caused by bullets from the applicant. "The newest case challenges the range's zoning permit years after the fact and seeks to litigate the very safety and causation issues before the court in the first two lawsuits, this time under the guise of a self-styled nuisance-type private enforcement action of the zoning code." The applicant is seeking to have this third lawsuit dismissed. The plaintiffs have obtained an order from the court requiring expedited discovery in the new lawsuit and have filed a motion for a preliminary injunction.

Back to Top

MARYLAND

Norris Paul Carey, Jr. v. Maryland Natural Resources Police, Joanne Throwe, Deputy Secretary Department of Natural resources, Captain Edward Johnson, Maryland Natural Resources Police, and Captain Charles Vernon, Maryland Natural Resources Police.

The applicant's attorney informs as follows:

On January 18, 2018, the applicant filed a lawsuit in the United States District Court for the District of Maryland against the Maryland Natural Resources Police ("MNRP"); Deputy Secretary Joanne Throwe ("Deputy Secretary Throwe") of the Maryland Department of Natural Resources ("DNR") in her individual capacity; Captain Edward Johnson ("Captain Johnson") of the MNRP in his individual capacity; and Captain Charles Vernon ("Captain Vernon") of the MNRP in his individual capacity. The applicant "asserts a claim against Deputy Secretary Throwe, Captain Johnson, and Captain Vernon for First Amendment retaliation under 42 U.S.C. § 1983 ...; a claim against MNRP under § 1983 for violation of rights granted by the Law Enforcement Officer Safety Act, 18 U.S.C. § 926C ("LEOSA"); and, a claim for defamation against Captain Johnson."

The applicant filed the lawsuit against the defendants after MNRP rescinded the applicant's LEOSA card and brought about his termination from the DNR in retaliation for the applicant exercising his right to free speech.

This case involves the denial of privileges and rights by unconstitutional practices inherent within the Maryland Natural Resources Police and buttresses the contention that retired law enforcement officers have an enforceable Federal right to obtain a concealed carry firearm permit and can sue in Federal court when their rights have been violated.

The applicant's attorney informs of the following facts underlying the case:

The applicant retired from MNRP on December 31, 2013, after twenty-six years of service. Throughout his career with MNRP, the applicant received excellent evaluations and there was never any disciplinary action. The applicant received multiple career related awards from the MNRP and retired from MNRP in good standing.

Prior to his retirement, the applicant was interviewed by MNRP as a witness in an ongoing investigation of a missing M16 patrol rifle. Unbeknownst to the applicant, a former MNRP officer was a suspect in the investigation.

Three months prior to his retirement, the applicant received a notification of complaint, dated September 26, 2013. The notice alleged that the applicant was communicating with the former MNRP officer who was under investigation by MNRP, and that the applicant had shared information with that officer about the investigation. The applicant admitted speaking to the former officer, but denied sharing any information with him. No charges were brought against the applicant or the any other officers.

On August 2, 2015 the applicant began work for the DNR. This was a civilian position within DNR under a long term contract.

The applicant applied for a "Retired Law Enforcement Officer Card," qualifying him to carry a semi-automatic weapon, which he received on April 25, 2017. Three days later, Captain Vernon contacted the applicant and informed him that he was not in good standing, and demanded that the applicant return his card. The applicant contacted the Maryland Police and Correctional Training Commission to inquire about his retirement status, which confirmed that he was in good standing, but informed him that someone had attempted to try to change the applicant's retirement standing earlier that morning. Captain Vernon then informed the applicant's DNR supervisor of the applicant's "revoked" LEOSA card.

The applicant performed his duties at the DNR to the satisfaction of his supervisor and consistently received excellent reviews and there was never any disciplinary action. The applicant's supervisor informed the applicant that his contract would be renewed by the expiration date of August 8, 2017.

However, on May 25, 2017, the applicant was fired personally by Deputy Secretary Throwe. The applicant was not given any reason for his termination, despite his request for an explanation. The applicant's direct supervisor was shocked by the termination.

The applicant asserts that he was terminated as a result of exercising his right to free speech and publicly calling attention to questionable conduct by MNRP personnel. "Mr. Carey was terminated in retaliation for exercising his right to free speech and publicly calling attention to information that called MNRP into dishonor and disgrace." On December 14, 2016, the applicant had posted a report on the Salisbury News Blog about Captain Johnson's posts on his own personal Facebook page. These posts included photos of Captain Johnson in his MNRP uniform with "scantily clad women in sexually provocative poses and the back of a man wearing a Pagan motorcycle jacket." The applicant alleged that Captain Johnson violated the MNRP's code of conduct and was "duplicitous" in his investigation of fellow officers for suspicions of misconduct. The applicant alleged that the "chain of command was aware of Captain Johnson's questionable behavior and failed to take remedial action." In another blog posting, the applicant "showed photographs of Captain Johnson's assault weapon ... along with other photographs and comments making light of gun violence and death."

In retaliation for his postings on the Salisbury News Blog, the MNRP engaged in a campaign to harass the applicant, including in his subsequent work place at the DNR.

Following his retirement, he was unfairly denied his retirement credentials and 'blacklisted' by the agency, foreclosing his ability to find re-employment in the same field. .... Following Mr. Carey's disclosures, officials within the MNRP used the prestige of their office to bring about Mr. Carey's termination from DNR and to rescind his properly issued LEOSA card.

On April 13, 2018, the defendants moved to dismiss the three counts, or, in the alterative, for summary judgment on counts one and two. On April 25, 2018 and May 7, 2018, the applicant filed his memoranda of law in opposition these motions. On May 7, 2018, the applicant filed an amended complaint. The defendants filed a motion to dismiss the first amended complaint or, in the alternative, for summary judgment on July 2, 2018. On August 14, 2018, the applicant filed his opposition to motion to dismiss.

On January 31, 2019, the United States District Court for the District of Maryland granted the defendants' motion to dismiss.

The applicant appealed to the United States Court of Appeals for the Fourth Circuit. The applicant and the defendants have filed their briefs and the case is now fully briefed. The parties are await a ruling by the United States Court of Appeals for the Fourth Circuit.

Malpasso v. Pallozzi.

Maryland requires those wishing to carry firearms outside the home to obtain a license to do so, which it will issue only upon a showing of a "good and substantial reason." While the Fourth Circuit's decision in Woolard v. Gallagher upheld this requirement, this litigation is designed to prompt reconsideration of that opinion in light of the DC Circuit's decision in Grace.

On April 12, 2018, a lawsuit was filed in the United States District Court for the District of Maryland challenging Maryland's concealed carry restrictions. Maryland moved to dismiss on June 11, 2018. The plaintiffs filed a response on June 25, 2018. The NRA filed an amicus brief supporting the plaintiffs on July 2, 2018. On October 15, 2018, the United States District Court granted the defendants' motion to dismiss.

An appeal to the Fourth Circuit was filed. On April 29, 2019, the United States Court of Appeal Fourth Circuit affirmed the judgment of the district court.

A petition for certiorari was filed in the Supreme Court on September 26, 2019. On November 15, 2019, the NRA filed an amicus brief in support of the plaintiff.

Maryland Shall Issue, Inc., et al. v. Hogan, et al.

This case challenges the Maryland handgun qualification license. Maryland currently requires all handgun purchasers to obtain a handgun qualification license, which requires a formal class with live fire, fingerprinting, a background check, and payment of numerous fees, in addition to the background check and fees associated with any subsequent handgun purchase.

The State filed a motion to dismiss. Following a hearing on the motion on August 7, 2017, the judge found plaintiffs had stated plausible claims for relief under the Second and Fourteenth Amendments and the State's motion to dismiss was denied.

Discovery has now been completed. Dispositive motions were briefed by November 5, 2018. The judge assigned to the case retired and the new judge has not acted on the matter.

Back to Top

MASSACHUSETTS

Gould v. Morgan (formerly Gould v. O'Leary).

This challenge to Massachusetts restrictions on the carrying of firearms in public was filed on February 4, 2016. Massachusetts requires a license to carry firearms in public, which may be granted only upon demonstration of a "good reason," and it delegates to local licensing authorities the power to require the showing of a heightened need for self-defense before issuance of a license to carry.

Cross-motions for summary judgment were filed in 2017. In December, 2017, the district court granted summary judgment to the defendants.

The plaintiffs appealed to the United States Court of Appeals for the First Circuit. Oral argument occurred on July 25, 2018. On November 2, 2018, the United States Court of Appeals for the First Circuit ruled adversely, upholding the "good reason" restriction under intermediate scrutiny. A petition for certiorari with the United States Supreme Court was filed on March 29, 2019.

After an initial conference, the United States Supreme Court is holding this in abeyance.

Granby Bow & Gun Club, Inc., et al. v. Town of Granby Zoning Board of Appeals, et al.

The applicant's attorney informs as follows:

The applicant is a not-for-profit corporation, founded in the 1940's, which operates a rifle, pistol, and archery shooting range on approximately 260 acres of land that it owns in Granby, Massachusetts. The range predates any enacted zoning ordinances.

In the spring of 2017, some property owners near the range began a public campaign to shut down the club. After the building inspector stepped down in September 2017, the Town of Granby's Board of Selectman took over those duties and acted on three letter complaints against the applicant. The letter complaints alleged noise nuisance, safety and zoning law violations. The Board of Selectman issued a cease and desist letter ordering that the applicant immediately "cease and desist using its rifle range shooting shed and cease shooting at 1,000 yard targets from its upper firing area on the rifle range." The applicant was not given an opportunity to be heard prior to the Board of Selectman's action.

The applicant appealed to the Granby Zoning Board of Appeals. In November 2017, the Zoning Board of Appeals upheld the Board of Selectmen's decision. There were no public hearings or deliberations prior to the Zoning Board of Appeals issuing its ruling. The Zoning Board of Appeals did not hear or review any evidence supporting the three complaint letters other than a few aerial photos provided by the Board of Selectmen.

On January 5, 2018, the applicant appealed to the Massachusetts Land Court (Hampshire County).

The issues presented include:

(a) [W]hether the [Zoning Board of Appeals] can eliminate vested constitutionally protected property rights that predate zoning via a pretextual zoning enforcement action; and

(b) [W]hether range opponents can circumvent the protections afforded ranges by the Massachusetts Range Protection Act via a pretextual zoning enforcement action.

At the judge's urging, the applicant and the Town entered into a stipulation to attempt to resolve the dispute through permits, while preserving all rights to move forward with the appeal. The court approved the stipulation and remanded the case to the Zoning Board of Appeals. In late 2018, the parties went back to the Zoning Board of Appeals to try to attempt to resolve the upper firing area permit by working though the permit process. A public hearing on the permit application took place on April 9, 2019. The permit for a shooter shed to mitigate noise while exercising grandfathered shooting rights at the range's precision firing line was denied, and litigation has resumed. Efforts to settle the matter proved unsuccessful and the litigation in Massachusetts Land Use Court has resumed.

A status conference was held on November 21, 2019. The following case management deadlines were set: Discovery, including expert disclosures, is to be completed by March 30, 2020. Dispositive motions are to be filed by May 30, 2020. Trial has been set for late June or early July 2020, unless there are no dispositive motions, in which case trial will be scheduled an earlier.

(The applicant also intends to file a 1983 action against the Town under the Second and Fifth Amendments to the U.S. Constitution in the United States District Court, District of Massachusetts.)

Worman, et al. v. Healy, et al.

On July 20, 2016 in an editorial in the Boston Globe state Attorney General, Maura Healy announced for the first time a radical reinterpretation of Massachusetts' long standing gun ban that mirrors the 1994 Clinton federal gun ban and that had been on the books in Massachusetts for approximately twenty (20) years. She unilaterally declared almost every semiautomatic firearm on the market to be illegal under Massachusetts law.

On January 23, 2017, a complaint was filed in the United States District Court, Massachusetts. The state filed an answer on March 16, 2017.

The defendants asserted Eleventh Amendment defenses of immunity from suit as part of their answer. Written discovery has been exchanged. Certain defendants-the Governor of Massachusetts, Massachusetts State Police, and Superintendent McKeon of the Massachusetts State Police-moved to dismiss on July 14, 2017, and moved to stay discovery against them on July 17, 2017. Other defendants-Attorney General and Secretary of Office of Public Safety-did not move to dismiss or stay discovery. The plaintiff's counsel dropped the Governor without discovery, and dropped Massachusetts State Police, but noticed its deposition, and opposed the motions with respect to Superintendent McKeon.

Plaintiffs took the depositions of representative witnesses from the Executive Office of Public Safety, the Massachusetts State Police, and the Office of the Attorney General. Plaintiffs also took the depositions of the fact witnesses identified the defendants in their interrogatories. Fact discovery ended on September 15, 2017, and the defendants have withheld nearly all internal communications, claiming privilege. The parties took depositions of each other's expert witnesses.

On April 6, 2018, the United States District Court for the District of Massachusetts upheld Massachusetts ban. ILA Litigation Counsel informed as follows:

After discovery, on cross-motions for summary judgment, Judge Young granted Defendants summary judgment on the Second Amendment and vagueness claims and dismissed the retroactivity claim as unripe. The Court held that the firearms and magazines banned by Massachusetts are outside the protection of the Second Amendment, largely following the Kolbe decision. The Court held that commonality is not a relevant issue in a Second Amendment analysis, and that the proper test for whether a firearm is protected is whether it is "most useful in military service."

Plaintiffs appealed to the United States Court of Appeals for the First Circuit. Briefs were filed by October 5, 2018. Oral argument occurred on January 9, 2019. On April 26, 2019, the United States Court of Appeals for the First Circuit upheld the Massachusetts law.

A petition for certiorari in the United States Supreme Court has been filed.

Worman, et al. v. Healey, et al. Law Enforcement Amicus Brief

See case description above.

Seven organizations consisting of law enforcement personnel, or which support law enforcement, participated in the brief. Consent to file the amicus brief was obtained from all parties.

On August 29, 2018, the law enforcement amicus brief was filed with the First Circuit. On September 20, 2018, the First Circuit granted the motion for leave to file the amicus brief.

On April 26, 2019, the United States Court of Appeals for the First Circuit decided the case in favor of upholding the Massachusetts law.

A petition for certiorari in the United States Supreme Court has been filed.

Worman, et al. v. Healey, et al. National African American Gun Association, Inc. Amicus Curiae Brief.

An amicus brief on behalf of the National African American Gun Association, Inc. was filed on October 24, 2019. Please see case description above.

Back to Top

MICHIGAN

Nancy Woehlke v. Timothy Craig Milko.

The applicant's attorney informs as follows:

The applicant owns and operates a gunsmithing, firearms, and outdoors shop. The applicant has a Michigan Concealed Pistol License, is a certified NRA instructor, has no criminal record, and has been found to be of good moral character.

The applicant and his ex-wife went through a divorce. They share joint custody of their children. The Oakland County Circuit Court, Family Division, issued a "consolidated order regarding custody and parenting time," which included the following restriction: "No guns of any kinds [sic] are to be present or in the presence of the children when the minor children are with Father during his parenting time in a vehicle and if in the home they are to be locked and out of sight." When the applicant challenged this restriction, a subsequent order provided that the applicant may also not hunt with his children. An appeal was rejected on the grounds that the applicant had not exhausted all his remedies in family court.

The applicant wishes to challenge the prohibitions and restrictions relating to firearms and hunting. The issues raised include: whether, in light of Heller, restricting the applicant's right to possess firearms for self-defense, infringes the Second Amendment; whether the applicant's Michigan Constitutional right to keep and bear arms for self-defense is infringed; in light of the fact that the applicant is a gunsmith and firearms dealer, whether the order limits the applicant's right to work; and, whether the order infringes the applicant's and his children's statutory right to hunt.

The applicant's attorney believes that a favorable outcome is likely. Heller held the right to possess firearms for self-defense as the core of the Second Amendment. "That right is most acute within the home." The Michigan Constitution provides that "[e]very person has a right to keep and bear arms for the defense of himself and the state." Mich. Const. art. I, § 6. See also, People v Zerillo, 219 Mich. 635, 640; 189 N.W.2d. 927 (1922). "The right to earn a living has been recognized by the Michigan Supreme Court as [being guaranteed by] the 5th and 14th Amendments." The Michigan Code protects the right to hunt. Mich. Comp. Laws § 324.40113a.

A motion to modify custody and parenting time orders was filed at the end of March 2019. "The court denied [the applicant's] request for an extended page limit and dismissed [the applicant's] motions based on the denial of that request." The applicant's attorneys redrafted and filed the motion.

On October 30, 2019, the applicant's motion was granted. The order provides that the applicant has "to make all firearms safe when not on his person or otherwise in us' and that the daughter "will not participate in hunting until further order of this court." The applicant may petition the court in the future to allow the daughter to hunt.

Oakland Tactical Supply, LLC, Jason Raines, Matthew Remenar and Scott Fresh v. Howell Township.

The applicant's attorneys inform as follows:

The applicant, Michael Paige, is the owner of Oakland Tactical Supply, LLC, a tactical firearms retailer in business since 2003, which has operated a retail store in Hartland Township Livingston County, Michigan, since 2011. The applicant is planning on building an extensive outdoor range facility for both private and public use in neighboring Howell Township. The applicant secured rights to a 350 acre parcel, zoned AR, and applied for the necessary local permits.

In 2017, the applicant applied to the Planning Board for a special permit. The application was denied after neighbors opposed the application. The basis for denial was that shooting ranges are not allowed in the AR district. The applicant was informed that he needed to apply to the Township to "seek[] a text amendment to the AR district in order to permit shooting ranges there." At a subsequent public meeting, neighbors opposed the text amendment. The text amendment proposal was denied, with no opportunity being given to the applicant to be heard.

The applicable zoning ordinances do not prohibit shooting ranges nor mention them.

The Township's effective ban on shooting ranges is an "impermissible infringement on the Second Amendment right to practice with firearms at a range," in violation of the holdings on Ezell, et al. v. City of Chicago, 651 F.3rd 684 (7th Cir. 2011) (Ezell I) and Ezell, et al. v. City of Chicago, 846 F.3rd 888 (7th Cir. 2017) (Ezell II). This case "presents the next logical extension of Ezell II to the Sixth Circuit. Here, the zoning laws fail to address the siting of shooting ranges altogether, and this has made it virtually impossible to site an outdoor range despite the Township's location in a part of the country that would normally be thought of as friendly to ranges."

Although the 6th Circuit has not had the opportunity to consider whether shooting ranges are protected by the Second Amendment, related rulings suggest that the 6th Circuit will be receptive to extending Second Amendment protections to shooting ranges and firearms training activities. ...

As in Ezell II, the practical effect of the zoning ordinance is a total ban on outdoor shooting ranges, which the 7th Circuit has made clear is unconstitutional. ...

[T]he 6th Circuit has confirmed that after determining whether the activity (training) is historically protected, the burden is on the government to establish that the restrictions comply with the requirements of intermediate scrutiny. See Tyler v, Hillsdale County Sheriff's Department, 837 F.3d 678, 685, 6th Cir. 2016 (Mich.) ... and Stimmel v. Sessions, 879 F.3d 198, 203, 6th Cir. 2018 (Ohio) ... . Intermediate scrutiny requires '(1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.' Tyler, 837 F.3d at 693. ... [T]he zoning restrictions applied by the Town provide a facial, absolute bar prohibiting siting of a gun range in any location within the Town. Therefore, the challenge would meet the more restrictive standards applied in cases such as Chicago Gun Club, LLC v. Vill. of Willowbrook, Illinois, No. 17 C 6057, 2018 WL 2718045 (N.D. III. June 6, 2018) and Teixeira v. Cty. of Alameda, 873 F.3d 670, 678-79 (9th Cir. 2017), cert. denied sub nom. Teixeira v. Alameda Cty., Cal., 138 S. Ct. 1988 (2018).

On November 2, 2018, the applicant's attorney filed a lawsuit, on behalf of the applicant and three individual plaintiffs, in the United States District Court, Eastern District of Michigan-seeking injunctive relief, fees and costs-challenging the constitutionality of the Township's zoning laws which effectively ban outdoor shooting ranges, as a violation of the Second Amendment.

Settlement negotiations ended unsuccessfully in February 2019 and litigation has resumed.

On April 10, 2019, applicant filed a motion of summary judgment and a supporting memorandum of law. The Township filed a motion for summary judgment and motions to dismiss, raising, amongst other issues, standing ripeness, and mootness. These motions have not yet been acted upon. "During the summer of 2019, several individual plaintiffs were added to the lawsuit, effectively cutting off the Township's strongest arguments for dismissal (that none of the individual plaintiffs resided within the Township)."

The court scheduled settlement discussions and a status and settlement conference occurred on August 28, 2019. Litigation has been stayed until January 7, 2020.

Oakland is completing the written proposal and documentation by experts that the Township requested in order to vote to settle the case. This information will be submitted to the Township within the next few weeks, and the Township is expected to vote on the proposal within the next couple of months. If the settlement efforts fail, Oakland is prepared to resume the litigation.

Joshua Wade v. University of Michigan.

The applicant's attorney relates the following pertinent facts:

Mr. Wade works for the University of Michigan Credit Union. Mr. Wade holds a valid Michigan Concealed Pistol License. While open carrying in downtown Ann Arbor, Michigan, Mr. Wade encountered a campus police officer who told him if he brought his gun onto campus property he would be arrested. After researching the relevant gun laws, Mr. Wade determined that he could apply to the University of Michigan's Director of Public Safety for permission to carry a firearm on campus.

Mr. Wade applied to the Director of Public Safety for the personal waiver in September 2014. His request was delegated to the Chief of the University of Michigan Police before being ultimately denied.

The University of Michigan's powers, as an arm of the state government, are set forth in the Michigan Constitution, pursuant to which the University is given the power to exercise general supervision of its property.

Mr. Wade challenged the University of Michigan's ban on the carry of firearms on University property under Michigan's preemption statute. Mich. Comp. Laws § 123.1101 et seq. Michigan's Court of Appeals has interpreted the firearms preemption statute broadly. In Capital Area District Library v. Michigan Open Carry, the Court of Appeals held that the preemption statute and Michigan's state firearms regulations preempted the entire field of firearm regulations and that quasi-municipal entities are subject to the state firearms preemption. Furthermore, in Branum v. Board of Regents of the University of Michigan, it was held that - despite the grant of "general supervision powers to the University - the University was subject to generally applicable state laws.

In November 2015, the Court granted the University's motion for summary disposition. Counsel for Mr. Wade filed an appeal with the Michigan Court of Appeals on December 4, 2015. Briefs have been filed and this matter is currently pending oral argument in the Michigan Court of Appeals.

The Michigan Court of Appeals has consolidated two school district cases (Clio and Ann Arbor) which involved the Michigan preemption statute. Oral argument occurred in December 2016 and the Court of Appeals held the applicant's case in abeyance until those cases were decided. Recently, the Michigan Court of Appeals has ruled in the two cases, holding that the two K-12 school districts were not subject to preemption and rejecting the argument that the Michigan legislature completely preempted the field of firearms regulation. Michigan Gun Owners, Inc. v Ann Arbor Public Schools, Mich. App. N.W.2d (2016) (Docket No. 32693) and Michigan Open Carry Inc. v Clio School District, Mich. App. N.W.2d (2016) (Docket No. 329418). The applicants' attorney believes that this flies in the face of the Michigan Supreme Court holding in CADL v. MOC that the Michigan legislature had occupied the field. Those two cases were appealed to Michigan Supreme Court.

The Court of Appeals issued its opinion for publication on June 6, 2017, affirming the lower court's summary disposition for the Appellee. However, the dissenting opinion was favorable to the applicant's position and supports grounds for appeal to the Michigan Supreme Court.

On July 18, 2017, the applicant's attorney filed an application for leave to appeal to the Michigan Supreme Court. A brief opposing was filed. On September 1, 2017, the applicant filed his reply brief.

On December 20, 2017, the Michigan Supreme Court issued an order holding this case in abeyance until the cases of Michigan Gun Owners, Inc. v Ann Arbor Public Schools and Michigan Open Carry Inc. v Clio School District, were resolved by the Michigan Supreme Court. On July 27, 2018, the Supreme Court issued its opinions in those two cases.

On June 6, 2017, the Michigan Supreme Court issued an order holding this case in abeyance pending the outcome of New York State Rifle & Pistol Association, Inc. v. City of New York.

Back to Top

NEW JERSEY

Association of New Jersey Rifle & Pistol Clubs, Inc., Blake Ellman, and Alexander Dembowski v. Gurbir Grewal, Patrick J. Callahan, Thomas Williver, and James B. O'Connor.

New Jersey enacted a ban on the possession of any firearm ammunition magazines capable of holding over ten (10) rounds.

On June 13, 2018, a lawsuit was filed in the United States District Court for the District of New Jersey, on behalf of ANJRPC and several New Jersey residents, challenging the new magazine ban on Second Amendment, Takings Clause, and Equal Protection Clause grounds.

On June 21, 2018, the plaintiffs moved for a preliminary injunction. Briefing was completed on July 9, 2018. Following an evidentiary hearing, post-hearing briefing, and oral argument, the District Court denied the motion on September 28, 2018.

The plaintiffs appealed to the United States Court of Appeals for the Third Circuit, moved for an injunction pending appeal, and moved for expedited briefing. The Third Circuit granted the motion for expedited briefing, and briefing concluded by November 2, 2018. The Court of Appeals denied the motion for an injunction pending appeal without prejudice. Oral argument was held on November 14, 2018 and November 20, 2018. On December 5, 2018 the Third Circuit panel affirmed the District Court. Plaintiffs petitioned for rehearing en banc, which was denied on January 9, 2019.

The defendants moved for summary judgment and the plaintiffs cross-moved for a stay of all proceedings pending the Supreme Court's decision in New York State Rifle & Pistol Association, Inc. v. City of New York, No. 18-280 (U.S.). Briefing was completed in April, 2019.

The plaintiffs have appealed to the United States Court of Appeals for the Third Circuit.

Rogers v. Grewal.

New Jersey requires those wishing to carry firearms outside the home to obtain a license to do so, which it will issue only upon a showing of "justifiable need." In addition, without such a permit it is nearly impossible to obtain a handgun for home defense. While the Third Circuit's decision in Drake v. Filko upheld this requirement, this litigation is designed to prompt reconsideration of that opinion in light of the DC Circuit's decision in Grace v. DC.

On February 5, 2018, in coordination with ANJRPC, a lawsuit was filed in the United States District Court for the District of New Jersey challenging New Jersey's concealed carry restrictions. On April 3, 2018, the defendant's filed a motion to dismiss. On June 18, 2018, the district court granted the motion and dismissed the case.

The plaintiffs appealed to the United States Court of Appeals for the Third Circuit. On July 3, 2018, the plaintiffs filed an unopposed motion asking the Court of Appeals to act on the appeal summarily, given the binding decision in Drake. On September 21, 2018, the Third Circuit granted that motion and summarily affirmed.

A writ of certiorari was filed with the United States Supreme Court on December 20, 2018. New Jersey initially waived its right to respond to the petition, but the Court requested a response. New Jersey filed its brief in opposition to the writ on May 3, 2019. Petitioners filed their reply brief on May 7, 2019. On May 7, the filings were distributed for the Supreme Court's conference on May 23, 2019. After an initial conference the United States Supreme Court is holding this case in abeyance pending the outcome of New York State Rifle & Pistol Association, Inc. v. City of New York.

Rogers v. Grewal. National African American Gun Association, Inc. Amicus Curiae Brief.

See case description above.

The applicant filed an amicus curiae brief on behalf of the National African American Gun Association, Inc., on Jan. 30, 2019.

After an initial conference the United States Supreme Court is holding this case in abeyance pending the outcome of New York State Rifle & Pistol Association, Inc. v. City of New York.

Back to Top

NEW YORK

Lambert Henry v. County of Nassau, Nassau County Police Department, Thomas Krumpter, Patrick Ryder, Marc Timpano, Adam Fischer, Stephen Triano, Jeffrey Kuchek, Mark Simon and Jeffrey Toscano.

The applicant's attorney relates the following:

The applicant is a retired law enforcement officer who seeks a declaratory judgement, injunctive relief and monetary damages in regard to the revocation of his pistol permit. Causes of action and claims under the Second Amendment, Monell liability, 42 U.S.C. §1981, and 42 U.S.C. §1983 were apparently raised in the complaint.

On October 20, 2014, the Nassau County Sheriff's Office entered the applicant's residence to serve an ex parte order of protection. The order did not include any provision regarding the removal of firearms. The order of protection was dismissed days later.

Despite these facts, Nassau County subsequently revoked the applicant's pistol license. As a result of that license revocation, the applicant also lost his right to possess long arms in Nassau County.

Nassau County claims the authority to revoke a pistol license "at any time ... for any reason" under Penal Law § 400.00(11). The applicant disputes this and argues that revocations are limited to "a series of specific occurrences clearly set forth in Penal Law § 400.00(11)(a)."

The defendants filed a motion to dismiss. On July 26, 2019, the applicant filed a memorandum of law in opposition to defendants' motion to dismiss. The parties are still awaiting a decision on defendants' motion to dismiss.

Hunter Sports Shooting Grounds, Inc. v. Brian X. Foley, Steve Fiore-Rosenfeld, Kevin T. McCarrick, Kathleen Walsh, Connie Kepert, Carol Bissonette, and Timothy P. Mazzei, and the County of Suffolk.

The applicant's attorney informs as follows:

Suffolk County has operated a trap and skeet shooting range in Suffolk County, New York, since 1963 on County owned land. The applicant, Hunter Sports Shooting Grounds, Inc., has a license to operate the trap and skeet shooting range as the County's concessionaire.

In 1987, the Town of Brookhaven passed a noise ordinance that prohibits the operation of the property as a trap and skeet range. Suffolk County also passed a noise ordinance, but it specifically exempts the County shooting range.

The Town of Brookhaven has been trying to shut down the applicant's shooting range based on alleged violations of its noise ordinance.

To date, 89 summonses for violating the noise ordinance have been dismissed and one-the first trial-resulted in a conviction. Approximately 150 summonses for violating the noise ordinance are pending. The applicant had to defend each individual summons at various trials in the District Court.

In January 2007, the applicant filed a declaratory judgment action in the New York Supreme Court, County of Suffolk, seeking damages, including attorney's fees pursuant to 42 U.S.C. § 1983, and injunctive relief.

The action has continued since then, with the matter being considered by the District Court, the Supreme Court and the Appellate Division. The parties have engaged in extensive motions practice and appeals throughout these years.

The issue is whether the applicant's range, located in Suffolk County, has the right to continue use as such despite the noise ordinance passed by the Town of Brookhaven. The applicant's attorney argues that the Suffolk County noise ordinance-which specifically exempts the County shooting range-"should trump the Town's regulation" and that the Town of Brookhaven has deprived the applicant

... of vested property rights, effecting a 'taking' of Hunter Sport's property interests, in violation of its rights of substantive and procedural Due Process and Equal Protection of the laws under Articles 5 and 14 of the United States Constitution, 42 U.S.C. Section 1983, and Article I Section 6 and 7(a) of the New York State Constitution.

Discovery has been completed.

On April 10, 2018, the applicant filed a motion for summary judgment on some of the causes of action. On May 17, 2018, the County of Suffolk filed an affirmation in support of the applicant's motion for summary judgment. On May 17, 2018, the defendants filed their memorandum of law in opposition. On September 14, 2018, the applicant's motion for summary judgment was denied. On October 18, 2018, the applicant simultaneously moved for leave to reargue, a stay of proceedings pending appeal, and a notice of appeal. The court denied the applicant's motions.

Trial commenced on January 30, 2019 and concluded on February 5, 2019. On June 14, 2019, the applicant filed its post-trial memorandum.

On November 21, 2019, the Court ruled against applicant, dismissing all of the applicant's causes of action. The applicant intends to appeal.

John Copeland, Pedro Perez, Native Leather Ltd, Knife Rights, Inc., Knife Rights Foundation, Inc. v. Cyrus R. Vance, Jr., Barbara Underwood.

The applicants' attorney relates the following pertinent facts:

This is a challenge, on Fourteenth Amendment vagueness grounds, to New York City's enforcement of state laws that prohibit "switchblade" and "gravity" knives.

The applicants' attorney describes the case as follows:

This case is a challenge to the vague and unconstitutional manner in which the Manhattan District Attorney's Office and the New York City Police Department enforce New York State knife law. The Defendants routinely arrest and prosecute individuals and businesses for possessing and selling ordinary pocket knives falsely claiming that they are illegal "gravity knives." Under Defendants' approach to enforcement it is impossible to know what knives are legal or illegal. Significantly, the knife possession charges are also being used as a pretext to subsequently confiscate licensed, registered firearms from many of those who have been arrested (including some of the plaintiffs in this case).

The applicants' attorney informs that the standing issue is of importance in other firearms related and Second Amendment cases:

Judges in the Second and Third Circuits have for several years been bending standing rules to the breaking point in an apparent effort to stop Second Amendment cases from proceeding (the Gregg Revell Port Authority FOPA case is one example). A loss on the pending appeal in this case further threatens the ability of other plaintiffs to bring firearms-related cases in the Second Circuit, while a win would prove useful in subsequent cases.

The complaint was filed in the U.S. District Court for the Southern District of New York on June 9, 2011. The court dismissed the lawsuit based on plaintiffs' lack of standing. It held that no plaintiff alleged a "concrete, particularized, and actual or imminent" injury that would be "redressable by a favorable ruling." A motion for reconsideration was denied on November 20, 2013. The dismissal was appealed to the U.S. Court of Appeals for the Second Circuit on May 15, 2014. Briefs were filed and argument was held on January 13, 2015. On September 23, 2015, the United States Court of Appeals for the Second Circuit affirmed the lower court's holding that the organizations Knife Rights and Knife Rights Foundation do not have standing, but vacated and remanded the district court's holding as to Copeland, Perez, and Native Leather, finding those plaintiffs sufficiently alleged an injury in fact to satisfy standing.

The favorable Second Circuit opinion is being used in several Second Amendment cases in other parts of the country in cases challenging firearms restrictions. (For instance, a Rule 28(j) submission, citing this case, was filed with the Ninth Circuit in Haynie v Harris, a vagueness challenge to the overly broad enforcement of California's "assault weapon" law.)

On June 16, 2016, the bench trial concluded. On January 30, 2017, the District Court ruled against the applicants, holding that the statute is not applied by the defendants in an unconstitutionally vague manner-even though there is no means by which a person can determine whether they are in possession of a legal or an illegal 