Gun rights lawsuit filed against Shawnee in federal court seeks $3 million :: 12/10/2015

A Shawnee man and his uncle have filed a lawsuit against the city of Shawnee in U.S. District court for $3 million, claiming the city violated their Second and Fourth Amendment rights in 2013 after years of having their constitutional complaints tossed out of various courts.

Jonathan Clark and his uncle Eric Clark filed the federal lawsuit late last month, arguing that the city did not have the constitutional right two years ago to search Jonathan Clark’s truck in Shawnee, confiscate a loaded handgun and charge him with unlawful possession of a firearm.

The city ordinance at the time allowed for people only to carry unloaded firearms in vehicles. That ordinance was repealed in 2014 when the state passed a law that said no city or county could pass a law that “governs the purchase, transfer, ownership, storage, carrying or transporting of firearms or ammunition.” Since then, it has been legal for people to carry loaded firearms in their vehicles, concealed or unconcealed, without a permit, background check, range qualification or training in the state of Kansas.

Clark argues that the city’s ordinance in 2013 was unconstitutional and caused him “emotional distress, mental anguish and loss of enjoyment of life” worth $3 million. His lawsuit does not specify where the $3 million figure comes from and attempts to reach him for comment last week were not returned.

Meanwhile, the city has continued to use its resources to fight the Clarks, who are acting as their own attorneys, and will now do so again in federal court. Several judges have found that the city acted within the the city's ordinance in 2013 when it confiscated Clark's gun and charged him with unlawful possession of a firearm. The city said it would not comment on a pending legal matter.

The city has until Dec. 22 to file a response in court.

Facts of the case

On Dec. 2, 2013, Jonathan Clark was driving on Shawnee Mission Parkway and was pulled over while taking an exit ramp onto Interstate 435.

According to court documents, Clark was pulled over by Shawnee Police Officer Nathan Karlin because he was driving with a trailer loaded with unsecured wood pallets. Karlin testified in a state Court of Appeals case that Clark got out of his truck to get some straps as Karlin parked his police car behind him. The wood pallets, Karlin testified, were not tied down and piled higher than the side rails of the trailer. The trailer also did not have a tailgate, Karlin said.

Court documents show that during the traffic stop, Karlin saw a loaded handgun in Clark's truck. Karlin cited Clark for having an unsecured load, illegal possession of a firearm and for having an untagged trailer.

Clark claims that he was held at gunpoint, placed in handcuffs, put in the back of a patrol car and then released on the side of the highway after his gun was confiscated. The city said it would not comment on the claims he made in his federal complaint because it is a pending legal matter.

Constitutionality

Clark has fought the city’s charges through several courts on the grounds that he says he was constitutionally able to carry a loaded firearm in his truck and that the officer illegally searched and confiscated his property.

He has also argued in the state Court of Appeals that the city of Shawnee misinterpreted its ordinances regarding unsecured loads, that the city’s unsecured load ordinance is also unconstitutional on the grounds that it “allows for subjective determination by those alleging a violation,” and that there was no probable cause to charge him with having an unsecured load.

In each of Clark’s trips to court acting as his own attorney, the judge has decided against him.

Kansas Court of Appeals District Judges Leben Green and Jeffrey Goering wrote in their October decision that the city’s unsecured load ordinance is constitutional and that it clearly states that a load must be securely fastened to prevent a safety hazard.

Tom Stacy, a law professor at Kansas University, said that the courts' record is clear and likely won’t change on this issue at the U.S. District Court level.

Stacy did say that Clark’s Second Amendment claims are “more interesting” because the courts “have struggled with clarification” in regard to carrying a loaded firearm in a vehicle.

There is clear case law that establishes a person’s right to have a loaded gun in their house for self defense, Stacy said, but cases regarding vehicles and the extension of that right beyond the home are not so clear cut. Stacy said one case out of the 4th Circuit Court of Appeals is one that might hold the best comparison to Clark’s complaint.

In that complaint, someone sued the National Parks Service for "unconstitutionally" banning loaded firearms in cars on park land. In that case, the judges ruled in favor of the National Parks Service, deciding that the agency had the right to do so in the interest of promoting public safety.

Stacy said gun laws specified for vehicles have been established around the country in various organizations in order to protect against road rage incidents, accidental firings while driving and a potential safety risk for police officers. On the other hand, laws have been passed in open-carry states like in Kansas that allow people to carry loaded weapons in their cars for self defense to prevent against carjackings and other threats to their property.

The plaintiffs' arguments

Clark argues that the city’s 2013 ordinance was “effectively a complete prohibition of carrying lawful firearms on public property” like a highway. Clark also points out that it would have been legal for him to carry the loaded gun in his hand outside of his truck on the side of the road but not hold it inside his own car.

“Requiring a lawful firearm to be unloaded while transporting can defeat the constitutionally protected purpose for which the firearm is transported, or carried,” Clark argues.

Uncle Eric Clark, who lives in Williamsburg and is co-plaintiff in the case, argues that his Second Amendment rights were also violated because he faced “potential threat of assault and arrest by officers of the city,” between December 2013 and August 2014 when the ordinance was repealed. Eric Clark claims that he purposefully did not carry loaded weapons during that time because of that “threat.”

“Carrying a loaded lawful firearm available for immediate self defense outside of the home is protected under the Second Amendment,” the Clarks argue. “While certain sensitive places outside the home are open to debate as to whether the Second Amendment affords protection, because the public highways are adjacent to virtually every home, that necessarily puts the carrying of a loaded lawful firearm for self defense while on a public highway beyond debate.”

Because there is not a long record of court decisions on cases like this, Stacy said, the Clark complaint could provide some precedent for citizens who legally have the right to sue their state and local officials over past ordinances or laws. However, Stacy said, the damages and relief for these cases are limited.

http://www.shawneedispatch.com/news/2015/dec/09/gun-rights-lawsuit-filed-against-shawnee-federal-c/