Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Buoyed by Donald Trump’s upset victory in November, Second Amendment advocates expected great things to happen in 2017 with a pro-gun rights President and Republican-controlled Congress in Washington, D.C.
And, certainly, great things did happen: Within weeks of convening, Congress repealed dozens of Obama Administration “midnight” regulations under the Congressional Review Act (CRA), including a rule that arbitrarily labeled some Supplemental Security Income and Disability (SSI) recipients as “mental defectives,” unconstitutionally disqualifying them from legally owning a firearm without due process.
Trump also fulfilled campaign promises to select a pro-Second Amendment justice to succeed the late Antonin Scalia on the U.S. Supreme Court. On Feb. 6, Trump selected 10th Circuit Court Judge Neil Gorsuch as his Supreme Court nominee. Despite objections from Democrats, including vociferous caterwauling by gun control advocates, Gorsuch was confirmed in April.
Equally pivotal was Trump’s pledge to stock the federal judiciary with justices favorable to gun owners’ rights. When he assumed office, 26 of 179 judgeships in the 13 federal circuit courts were vacant and at about 120 of 673 judgeships in the 93 federal district courts were unfilled. These lower court appointments will shape the judiciary for decades; while the U.S. Supreme Court hears about 80 cases a year, the nation’s 13 federal circuit courts alone handle more than 30,000 cases annually.
The Trump Administration, however, has been slow to submit nominees to fill these nearly 150 federal court vacancies. As of Dec. 14, just 12 appellate court judges and six district court judges nominated by Trump had been confirmed. The administration had only named six candidates to fill the remaining 14 circuit court seats and 32 nominees for more than 110 district court vacancies.
Meanwhile, even with Gorsuch empaneled on the Supreme Court, 2017 would prove to be frustrating for gun owners’ rights advocates as the Court continued to avoid Second Amendment-related cases, casting aside three significant challenges to lower court rulings that had painstakingly made their way through the system for years.
While 2017 would be a year in which immediate legal victories for gun owners were stymied in frustration, it could also prove to be a year in which the subtle foundations for future judicial triumphs were slowly, yet surely, laid. Here is Outdoor Life’s top 10 Second Amendment-related court rulings and litigation trends of 2017:
1. Supreme Court Declines To Hear Three Gun-Rights Cases
The U.S. Supreme Court on Nov. 27 declined to hear challenges to Maryland and Florida gun-control laws, extending a seven-year trend in avoiding cases that appeal contentious firearms-related rulings.
The Court rejected hearing Kolbe v. Hogan and Norman v. Florida, months after declining to hear Peruta v. California, a challenge to California's “may issue” handgun permit law. The Supreme Court has not heard a Second Amendment-related appeal since McDonald v. Chicago in March 2010.
Kolbe challenges the constitutionality of the Maryland Firearms Safety Act’s (FSA) ban on certain semi-automatic rifles and handguns, while Norman challenges Florida's ban on open carry of firearms in public.
Many were convinced Kolbe would be heard by the Supreme Court after U.S. District Judge Marvin Garbis ruled on Sept. 4 that the suit against the FSA could move forward. Maryland’s FSA, which bars the sale of semi-automatic rifles and caps magazines at 10 rounds, was adopted in 2013 along with similar “assault weapon” bans in Connecticut and New York in the wake of the 2012 Sandy Hook shootings.
In October 2015, the U.S. 2nd Circuit Court upheld the New York and Connecticut bans. In February 2016, however, a three-judge panel of the 4th Circuit Court vacated a lower-court ruling upholding Maryland’s FSA and agreed to hear Kolbe v. Hogan. On Feb. 20, 2017, the 4th Circuit voted 10-4 to uphold Maryland FSA’s “assault weapons” ban, stating the Second Amendment doesn’t protect a right for citizens to own “weapons of war.” In July, the plaintiffs appealed their case to the Supreme Court. On Nov. 27, the Supreme Court declined to hear the case.
That same day, the Court also dismissed Florida Carry’s appeal in Norman v. Florida, challenging a 2016 Florida Supreme Court ruling that upheld state statutes that make Florida one of only five states that ban almost all open carry, with limited exceptions while hunting or fishing. In its 49-page brief filed July 10, Florida Carry argued Florida’s ban is unconstitutional because state law makes concealed carry a licensed privilege, while open carry is a right guaranteed under the Second Amendment.
The genesis of the rulings is the 2012 conviction of Dale Lee Norman, 26, who was found guilty of open carry of a weapon outside of his Fort Pierce home when his shirt did not cover the handgun for which he had a concealed carry permit. Norman, represented by Florida Carry, lost an appeal in 2015. In early 2017, the Florida Supreme Court upheld the ruling in 4-2 vote, maintaining the prohibition does not infringe on the Second Amendment because it only regulates one manner of bearing arms — leaving open to Floridians who want to carry outside of their property the opportunity to obtain a concealed carry permit.
Perhaps the biggest disappointment for Second Amendment rights advocates was the Supreme Court’s refusal on June 26 to accept Peruta v. California, a long-anticipated challenge of a California law that requires a citizen seek permission before exercising a fundamental individual right. Many believed this would be the case to firmly elevate ’shall issue’ over ‘may issue.’
The Supreme Court appeal was filed on Jan. 12 by attorney Paul Clement, of Kirkland & Ellis, Washington, D.C., on behalf of Edward Peruta, Michelle Laxson, James Dodd, Dr. Leslie Buncher, Mark Cleary and the California Rifle & Pistol Association Foundation. Justices reviewed the appeal in private conference 11 times before opting not to accept it.
The case began as Peruta v. San Diego County after Edward Peruta’s application for concealed carry permit was denied by the San Diego Sheriff’s Office because he did not show “good cause” for the permit. Peruta sued, alleging the “good cause,” requirement — ‘may issue’ — violated the Second Amendment.
In 2014, a three-judge panel of the 9th Circuit Court sided with Peruta and ‘shall issue’ proponents. In 2016, an en banc panel of the 9th Circuit overturned that 2014 ruling and determined “there is no Second Amendment right for members of the general public to carry concealed firearms in public." Later in 2016, the court refused to review its decision. In January 2017, the case was appealed to the U.S. Supreme Court.
Many misconstrue the case as a challenge to prohibitions against carrying firearms in public, but the correct way to interpret Peruta is as a challenge to a state-imposed preemption of a fundamental individual right.
Justices Neil Gorsuch and Clarence Thomas filed dissents in the refusal to review Peruta. "The Court's decision to deny certiorari in this (Peruta) case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right," Thomas wrote, noting since hearing its last Second Amendment case in 2010, the Court has heard “roughly 35 cases where the question turned on the meaning of the First Amendment, and 25 cases that turned on the meaning of the Fourth Amendment."
2. Wrenn’s ‘Clear Guidance’ Precedent To Challenge ‘May Issue?’
The U.S. Court of Appeals for the District of Columbia on Sept. 29 declined a request by Washington, D.C., attorneys to revisit the court’s 2-1 ruling in July in Wrenn v District of Columbia that determined the district’s requirement that applicants provide a “good reason” to legally obtain a carry permit is unconstitutional.
The district’s “may issue” permitting system had remained in effect while the appeal was under review. But the brief statement from the federal appeals court not only denied the appeal, but gave the district until Oct. 5 to seek review by the Supreme Court or lift its ‘may issue’ prohibition. Ultimately, particularly with pro-Second Amendment Justice Neil Gorsuch seated, the district opted not to appeal and lifted its “good reason” preemption.
Although the Wrenn ruling only applies to the District of Columbia, it is a potentially exploitable precedent for gun rights’ advocates because it creates a conflict in varied rulings among the nation’s 13 federal circuit courts. This could provide the groundwork for a ‘shall issue vs. may issue’ challenge that, many hope, could eventually put the question before the Supreme Court.
The question, especially after the Supreme Court refused to hear similar-themed Peruta v. California on June 26, is will that “clear guidance” eventually result in it accepting a challenge to ‘may issue’ preemption?
The Appellate Court’s July 25 ruling in Wrenn struck down Washington D.C.’s third attempt in 40 years to limit handgun rights. The challenge was brought by gun owners and the Second Amendment Foundation, and includes a companion suit — Grace v. District of Columbia — filed by the Pink Pistols, a gay-friendly shooting club that has been aggressive it seeking to “restore gun rights for citizens in Washington DC.”
The ruling is the latest legal blow for District officials who have been forced to rewrite gun-control regulations since the Supreme Court’s 2008 ruling in District of Columbia v. Heller that struck down a D.C. law that banned all handgun possession in the city.
3. Sandy Hook Families’ Appeal Targets PLCAA Protections
A Connecticut Supreme Court panel on Oct. 26 agreed to hear an appeal of a 2016 ruling that dismissed a wrongful death lawsuit filed by families of victims in the December 2012 Sandy Hook massacre against Remington, which manufactured the Bushmaster XM15-E2S that Adam Lanza used to murder 20 first-graders and six educators.
On Nov. 14, the Connecticut Supreme Court heard attorney Joshua Koskoff ask to reinstate a wrongful death lawsuit against Madison, N.C.-based Remington. He said Remington marketed the Bushmaster rifle and other AR-15-style firearms, which Koskoff called “military killing machines that are too dangerous for the public” specifically for a younger demographic, including the 20-year-old Lanza.
A ruling is expected in 2018 but the fact that the Connecticut Supreme Court agreed to accept the appeal in October and heard it in November is significant. The case is being watched across the country as one that could affect other cases accusing gun-makers of being responsible for mass shootings. Several groups, including the National Rifle Association and emergency room doctors, submitted briefs to the court.
At issue, potentially, is the 2005 Protection of Lawful Commerce in Arms Act (PLCAA), which exempts gun-makers from liability when their products are used in crimes. In October 2016, Connecticut Superior Court Judge Barbara Bellis dismissed the Sandy Hook families’ suit because it "falls squarely within the broad immunity" provided gun manufacturers and dealers by the PLCAA.
In his argument before the Court in November, Koskoff said an exception to the PLCAA allows lawsuits alleging "negligent entrustment” which occurs when companies provide people with products the companies know, or should know, could be dangerous. Another exemption, he said, allows lawsuits alleging manufacturers knowingly violated a state or federal law that applies to the sale or marketing of firearms.
There were a number of potentially significant rulings and lawsuits challenging protections afforded manufacturers by the PLCAA as well as those provided firearms retailers in 2017. Among them:
4. Presumptive Search Ruling: Armed = Dangerous
On Jan. 23, the 4th Circuit Court of Appeals declared that being armed, even legally, is the same as being "armed and dangerous" in a decision that, potentially, means a legally armed gun owner automatically waives the Constitutional prohibition against unauthorized search and seizure by law enforcement simply by being armed in public.
The ruling comes from deliberations in U.S. v. Robinson. On July 26, attorneys general from five states — Indiana, West Virginia, Michigan, Texas, Utah — filed an amicus brief to the U.S. Supreme Court challenging the ruling.
In March 2014, Shaquille Robinson was a passenger in a car pulled over by police in Ranson, W.V. It was pulled over, allegedly, because driver and passenger were not wearing seat belts. Police later disclosed they had received a tip that Robinson had been seen loading a gun and putting it in his pocket before he got in the car. Police searched Robinson after pulling the car over and found the gun in his pocket, and arrested him for an illegal possession of a gun by a felon.
Robinson challenged the search. Police had no legal grounds for the search that found the (actually illegally possessed) weapon. A 4th Circuit Court panel agreed with Robinson in 2016 and overturned his initial conviction. The ruling was appealed to the full circuit court, which issued the ruling on Jan. 23. The ruling was in response to the question whether "armed" should legally be presumed to mean the same thing as "armed and dangerous," and their conclusion was “Yes.”
A similar case produced a different ruling on March 31 when the Illinois First District Appellate Court, which is generally unfriendly to the Constitution and particularly unfriendly to the Second Amendment, ruled 2-1 in People v. Horton that possession of a firearm does not, on its own, give officers reasonable suspicion or probable cause to conduct a search or seizure.
5. California Ban On Possessing Pre-Ban High-Cap Mags Stymied
California banned the sale of large-capacity magazines in 2000 but those who owned them could keep them because they were purchased when they were legal. That changed in November 2016 when 63 percent of California voters approved Proposition 63, which bans the possession — whether “grandfathered” or not — of magazines capable of holding more than 10 rounds of ammunition.
The ballot measure, as well as a raft of gun control laws passed in 2016 by state legislators, are proving easier to adopt than to enact, however, because a wide array of gun-rights’ groups and individual citizens have filed a wide array of 2017 lawsuits challenging the new laws for a wide array of reasons, not only questioning the Constitutionality of the measures, but their common sense.
The new law stipulated that the magazine ban was to go into effect on July 1, 2017. Afterward, magazines that hold more than 10 rounds could no longer be legally bought, sold or possessed in the state. The ban required Californians to hand over any non-conforming magazines which, the lawsuit contented, amounted to the government taking people's private property.
Among the first challenges to the ban was a federal lawsuit filed April 28 in Fresno by seven individuals and four civil rights organizations, arguing that it was an infringement of their Second Amendment rights and the requirement that Californians hand over their magazines amounts to the government taking people's private property.
On June 29, three days before it went into effect, U.S. District Judge Roger T. Benitez issued a preliminary injunction blocking the ban. If the injunction had not been issued, anyone in possession of a banned magazine after July 1 would have faced a citation punishable by a fine not to exceed $100 per magazine, or could have been found guilty of a misdemeanor punishable by a fine not to exceed $100 and up to a year in jail.
“If this injunction does not issue, hundreds of thousands — if not millions — of otherwise law-abiding citizens will have an untenable choice: become an outlaw or dispossess one’s self of lawfully acquired property,” Benitez wrote in a statement published by the Associated Press. “That is a choice they should not have to make.”
The lawsuit, Duncan v. Becerra, seeks to exempt those who owned their non-conforming magazines before they were outlawed. The NRA and its state affiliate filed lawsuits seeking to make the injunction permanent. By year’s end, the injunction remained in place.
In November, four gun owners, The Calguns Foundation, Firearms Policy Coalition and the Second Amendment foundation filed a 55-page complaint in Riverside County State Superior Court claiming retroactive mandates arbitrarily issued by the California Department of Justice would make them criminals by regulatory fiat in disregard to state laws adopted with “grandfather” clauses designed to specifically exempt them from culpability.
The suit claims the state’s DOJ is “usurping the state Legislature’s intent” in the way it is enforcing the ever-increasing array of gun control laws passed by California lawmakers. The suit maintains that the DOJ has manipulated the statutory definitions of what constitutes a legal gun in California since 1989, adjusting provisions for firearms “grandfathered” and deleting old definitions only to replace them with “entirely different content,” essentially making entire classes of firearms suddenly illegal.
Another significant California legal challenge was filed on Sept. 1, when Calguns and the SAF filed for an appeal in Silvester, et al. v. Becerra, requesting the U.S. Supreme Court review a 2016 Ninth Circuit decision upholding California’s 10-day waiting period for handgun purchases.
In 2014, federal District Court Judge Anthony W. Ishii held the waiting period laws were unconstitutional as applied to three categories of gun purchasers after undertaking significant discovery, depositions, and a three-day bench trial, according to a Calguns press release.
But in 2016, the 9th Circuit ruled that even a person legally carrying a concealed handgun as he buys another gun, and who passes a further background check, needs to be “cooled off” for another 10 days before being permitted to proceed with the purchase.
6. Lawsuits Challenge Campus Carry Laws And Bans
In 2017, at least 16 bills were introduced to allow students and faculty to carry guns on college campuses. Such proposals failed in Wyoming, Alabama, South Carolina, Florida and Oklahoma while they were passed in Arkansas and Georgia, making them the 10th and 11th states to specifically enact “campus carry” laws. Twenty-four other states allow concealed carry weapons on campus, but give each college or university the discretion to administer their own policies.
Georgia HB 280, which allows concealed-carry permit holders to carry firearms onto college and university campuses, went into effect July 1 and Arkansas HB 1249, which allows concealed carry permittees age 21 or older, after they complete up to eight hours of training, to bring guns onto college and university campuses, went into effect on Sept. 1.
On Sept. 25, six professors at Georgia colleges and universities, including three from the University of Georgia, filed a lawsuit in Fulton County Superior Court against Gov. Nathan Deal and Georgia Attorney Georgia Chris Carr, claiming the state’s newly adopted campus carry bill is unconstitutional.
The lawsuit claims colleges should be treated as sanctuaries of learning and says "for over two centuries, going as far back as 1810, the Board of Regents and university system institutions have exercised this constitutional authority to prohibit firearms on university system campuses."
The suit sought to impose an injunction to restore the ban on campus carry, which the court did not enact.
Other campus carry suits include:
The lawsuit was filed in November 2016 by Students for Concealed Carry Foundation, Ohioans for Concealed Carry and Mike Newbern, an Ohio State University student and former instructor. The suit asks the courts to strike down OSU policies that, they say, limit possession of handguns even in locked vehicles.
The suit contends that state law doesn't allow state universities to ban storage of guns in vehicles. It says the university unlawfully imposes such a ban in three places: its student code of conduct, rules for employees and policies for recreational sports programs.
Ann Arbor resident Joshua Wade argued that the university is not a "sensitive place" because it is "not a school as that word is commonly understood."
Judge Mark Cavanagh, writing for the majority, said the U.S. Supreme Court, in its 2008 Heller decision which declared Washington, D.C.'s handgun ban unconstitutional, does not “cast doubt on longstanding prohibitions on laws forbidding the carrying of firearms in sensitive places such as schools and government buildings ... "
In dissent, Judge David Sawyer argued the university's ban was preempted from regulating firearms under the provisions of state law in areas of the university that are open to the public.
UTA professors Jennifer Glass, Lisa Moore and Mia Carter filed suit to block the law, claiming it could “chill” discussion of controversial topics in class because faculty members and students might fear someone with a weapon would shoot anyone who disagreed with him.
Nonsense, ruled Yeakel, writing: “Plaintiffs cannot establish standing by simply claiming that they experienced a ‘chilling effect’ that resulted from governmental policy that does not regulate, constrain, or compel any action on their part.”
7. ‘Gun-Offender’ Registry Unconstitutional, ’Tyrant’ Registry Upheld
The city of Cleveland’s gun-offender registry is unconstitutional, the Ohio Court of Appeals wrote in an April 27 opinion released May 3. Ohioans For Concealed Carry (OFCC) challenged the constitutionality of the city’s 2015 ordinance’s registry, as well as its mandate to call police about guns on school property. The appeals court tossed both ordinances out.
In 2015, Cleveland imposed 11 city ordinances that created a gun-offender registry and mandated “a duty to notify police if weapons are found on school grounds.” Cleveland Mayor Frank Jackson said the registry was needed in combating the city's gun violence. It required those convicted of gun-related crimes to register their firearm with a city database within five days of that conviction or face a separate charge that carried up to six months in jail or a $1,000 fine.
The court insisted that state law supersedes local municipalities' attempts to regulate gun ownership and that the registry violates state law and is unconstitutional.
On Feb. 27, U.S. District Court Judge Lawrence J. O'Neill of the Eastern District of California ruled that another type of registry was legal. O’Neill said a “tyrant registry” published in July 2016 by an anonymous author known as Doe Publius in a blog called The Real Write Winger is "a form of political protest" and, therefore, Constitutional.
Doe Publius’s “tyrant registry” published the home addresses and phone numbers of all gun control California legislators. Within days, the "tyrant registry" went viral and allegedly led to threats against several named legislators. The California legislative counsel ordered WordPress, The Real Write Winger's host site, to take down the post. WordPress complied with the demand, which then led to Publius filing suit.
"These tyrants are no longer going to be insulated from us. These are the people who voted to send you to prison if you exercise your rights and liberties,” Publius wrote.”
8. Non-Binding Rulings Presage ’Stand Your Ground’ Challenges
Miami-Dade Circuit Judge Milton Hirsch ruled on July 3 that Florida lawmakers exceeded their authority in updating the state's "Stand Your Ground" law during the state’s 2017 legislative session to require prosecutors prove by "clear and convincing" evidence that someone wasn't acting in self-defense.
Hirsch’s 14-page order claims that changes to the law are “procedural” and, therefore, can only be legally crafted by the Florida Supreme Court instead of by the Legislature, making the revised law unconstitutional. In August, a second judge, Miami-Dade Circuit Judge Alan Fine, issued a ruling that concurred with Hirsch’s assessment.
Neither rulings are binding. Florida trial judges can follow the law until appeals courts, and most likely the Florida Supreme Court, decide on the issue. And Hirsch’s and Fine’s rulings make it very likely that the issue will be challenged in appellate courts and the state’s Supreme Court.
Florida lawmakers in May modified the state’s 2005 ‘Stand Your Ground’ statute to mandate that prosecutors shoulder the burden of disproving a defendant’s self-defense claim. Gov. Rick Scott signed it into law in June.
State attorneys maintain the law essentially forces them to try a case twice, first during a pretrial immunity hearing to disprove a self-defense claim, and then during trials. As a result, judges have tossed out several high-profile murder cases after pretrial immunity hearings in Miami-Dade County.
9. Seattle ‘Gun Violence Tax’ Upheld
The Washington State Supreme Court on August 7 upheld Seattle’s tax on gun and ammunition sales in an 8-1 affirmation of a February King County Superior Court ruling that the city’s “gun violence tax” was Constitutional.
The National Rifle Association, National Shooting Sports Foundation and The Second Amendment Foundation (SAF), among others, argued that the tax violates a Washington law that bans cities from regulating firearms, reserving that authority for the state. Seattle claims the tax is legal because taxation is different from regulation. The Court agreed, noting the city’s ordinance imposes a tax, rather than a regulation, on firearms “because its primary purpose is to raise revenue for the public benefit.”
The 2015 tax law allows Seattle to impose levies of $25 per firearm plus 2-to-5 cents per round of ammunition. The ruling could be significant as a precedent for other municipalities, not only in Washington but in other states, to adopt similar taxes.
In July, the SAF and other opponents of the gun violence tax were successful in forcing the city to reveal how much revenue the tax was generating. The SAF and Dave Workman, senior editor of TheGunMag.com, filed the lawsuit in September 2016, claiming the city’s refusal to disclose the tax revenues was a violation of the state’s Public Records Act (PRA).
King County Superior Court Judge Lori K. Smith agreed, although she disagreed that Seattle was acting out of bad faith, awarding SAF and Workman a penalty of $377, amounting to one dollar a day since the lawsuit was filed last year.
When the city adopted the tax, supporters said it would raise up to $500,000 a year that could be spent on “gun violence prevention” and research. Workman contended the council expended $275,000 from the city’s general fund to get the program underway. When Seattle was forced to reveal how much the tax had raised in 2016, the total was $103,766.22.
10. ‘Docs v. Glocks’: Law Violates Docs’ First Amendment Rights
The U.S. 11th Circuit Court of Appeals on Feb. 16 ruled 10-1 to overturn a 2011 Florida law that threatened doctors with losing their license for asking patients if they owned guns and for discussing gun safety because the prohibition is a violation of doctors’ First Amendment rights.
In its challenge in the so-called ‘Docs v. Glocks’ lawsuit, individual doctors, medical organizations and, among other groups, the American Civil Liberties Union argued that questions about gun storage were crucial to public health because of the relationship between firearms and both the suicide rate and the gun-related deaths of children.
The court found that a provision that stated one part of the law — that doctors cannot deny service to patients who owned guns — was constitutional.
The Florida Legislature became the first — and only — legislature to adopt a law restricting physicians from discussing firearms with patients in 2011. Under the law, doctors could lose their licenses or risk large fines for asking patients or their families about gun ownership and gun habits. Pediatricians routinely ask parents questions about safety in the home, including the safe storage of guns and precautions to prevent drowning in pools.
OTHER NOTABLE 2017 RULINGS/ACTIONS
https://www.outdoorlife.com/top-10-second-amendment-related-court-rulings-2017