Thursday, July 31, 2014

Florida Carry Plans Appeal


Florida Carry has been active in holding state universities in Florida to the letter and spirit of the law regarding weapons restrictions on campus. Florida has state preemption on firearms issues but many municipalities and other governmental units want to go their own way. This would include the University of Florida in Gainesville. As a result, Florida Carry is suing them in state court. Unfortunately, a circuit court judge (and loyal alumnus) ignored a higher court ruling and granted summary judgment to the University of Florida. Florida Carry will be appealing to the 1st District Court of Appeals where they won an earlier case against the University of North Florida.

From Florida Carry:
Florida Carry case against University of Florida gun ban regulations moving to the First District Court of Appeal
On January 10th, 2014 Florida Carry, Inc. filed a lawsuit against the University Florida (UF), seeking a permanent injunction to protect the rights of students, faculty, and the public from the university's illegal and unconstitutional regulations prohibiting or severely restricting firearms and weapons on all university property including in student's personal vehicles and in university managed housing.

Since 1987 the Florida Legislature has preempted firearms law and issued state-wide licenses to carry concealed for self-defense. In December Florida Carry won a similar case against the University of North Florida (UNF). In Florida Carry v. UNF the First District Court of Appeal ruled that "The legislature's primacy in firearms regulation derives directly from the Florida Constitution... Indeed, the legislature has reserved for itself the whole field of firearms regulation in section 790.33(1)..." No public college or university has any authority to prevent students and the public from having a functional firearm in places that are constitutionally protected or permitted under state law.



The University of Florida has failed to comply with the court's ruling by doing nothing more than adding an "Intent" footnote to only one of its illegal policies.

In 2008 the United States Supreme Court ruled that the right to keeps arms in the home is at the very core of the Second Amendment.

Today, (Wednesday July 30th, 2014) Circuit Court Judge Toby S. Monaco granted motions to dismiss and for summary judgement in favor of his alma mater and granted sovereign immunity to UF President Manchen. The lower court Judge ignored the plain language of multiple Florida firearms laws, multiple binding court cases from Florida and the US Supreme Court, turned to blind eye to university policies that are promulgated in continued violation, and refused to conduct any analysis of the right to keep and bear arms.

This is the same failure to follow the law and protect the fundamental right to keep and bear arms that we saw from another lower court in our case against the University of North Florida. Prior to winning the landmark Florida Carry v. UNF case that secured the right of students to store firearms in their cars parked on campus in the First District Court of Appeals late last year, another Florida Circuit Court Judge entered a similarly poorly reasoned decision.
"It's disappointing but this type of ruling is exactly what we have come to expect from far too many intellectually dishonest lower court judges at this phase of any Second Amendment case." said Florida Carry Executive Director Sean Caranna "Once again, we'll appeal to the First DCA... and once again, we'll win."

Boat Ramp Buzzards?


When I first saw the release below from the North Carolina Wildlife Resources Commission, I thought that by "boat ramp buzzards", they meant thieves or vandals breaking into cars. I was surprised to find out that the NCWRC meant exactly what the headline indicated - buzzards of the avian variety. Specifically, they mean turkey buzzards in the Piedmont of NC and black buzzards further east in the state.

It seems that the buzzards know a good place to find food when they see it and are hanging out at boat ramps for easy pickings. Unfortunately, they have been both damaging cars and pooping everywhere. Given that they are Federally-protected as raptors, you can't shoot or otherwise harm them. Thus, you just have to make boat ramps unattractive to them.

From the NCWRC:
RALEIGH, NC- The N.C. Wildlife Resources Commission is requesting public assistance in a battle against boat ramp buzzards.

Buzzards, which are also known as vultures, have damaged cars, trucks and boat trailers at some Piedmont boating access areas. Damage and nuisance issues created by boat ramp buzzards include scratches on vehicle hoods and roofs, exterior moldings pulled apart and windshield wipers torn away, as well as large amounts of droppings.

To scare vultures away from boat ramps, Wildlife Commission staff is using visual and audial deterrents, including pyrotechnics and replicas of dead vultures.

The Commission requests the public assist in the effort to reduce vulture visitation by keeping access areas clean and removing trash and food remnants. Anglers should not leave behind fish guts, unused bait and fish carcasses, including in the nearby waterway.

Many boaters are covering vehicles with tarps or covers to prevent damage. Others are using alternate public boating access areas to reach the same waterway.

Vultures are scavengers, but they also are federally protected birds of prey. Two species are found in North Carolina - the turkey vulture, common in the mountains and Piedmont, and the black vulture, more common in the eastern region.


H/T The Outdoor Wire

Tuesday, July 29, 2014

Judgment Stayed For 90 Days


As pretty much expected, Judge Frederick Scullin, Jr. granted the District of Columbia a stay of his decision finding DC's ban on the possession of firearms outside the home as unconstitutional. However, the District only got 90 days or until October 22nd.

The plaintiffs had indicated that they would agree to a 90-day stay if the City Council would enact remedial legislation within that time that was consistent with Constitutional standards.

The plaintiffs have until Monday, August 4th, to file a motion in opposition to the stay and the defendants then have until the following Monday to file their reply in support of a 180-day stay pending appeal.

In a footnote to the order, Judge Scullin asserted that he saw no need to clarify his decision noting that the injunction "clearly applied only to handguns and not any other type of deadly dangerous weapon." DC's Attorney General had tried to assert the original ruling was broader than "scope of the gun owners’ lawsuit and that it appeared to apply to restrictions on the carrying of all deadly weapons and not just handguns."

I agree with Bitter that there is no reason the DC City Council cannot enact a workable carry law within 90 days. As she notes, the DC police proved that they could come with something on the fly. 

As to an appeal of the decision, my gut still tells me that DC will go for it.

Chief Lanier's Memo To Metro Officers (Updated)


Thanks to the efforts of the National Gun Rights Examiner David Codrea, we have the memo that District of Columbia Police Chief Cathy Lanier had sent out to all officers of the Metropolitan Police Department regarding carrying a pistol, either open or concealed, within the District.







UPDATE: David Codrea, the National Gun Rights Examiner, has an updated "official teletype" message from Chief Cathy Lanier that provides further guidance to the officers of the Metropolitan Police Department regarding the lawful carry of firearms outside the home in DC. This message goes into much greater detail than the earlier one issued on Sunday. While the District has officially requested a stay of the decision by Judge Scullin, it has not yet been granted as of early this morning.

Reading through the teletype, it is important to note that it only applies to handguns. The carry of a long gun such as a rifle or shotgun outside the home is still prohibited.

Given the fluidity of the legal situation, I'd be very careful if I were carrying in DC as a non-resident or even as a resident. The motion for the stay could be granted at any time which would probably return things to what they were before the decision. Or to use the full Latin phrase, status quo ante bellum. And yes, it is a war for our rights.


Monday, July 28, 2014

DC Does As Expected


In a not unexpected turn of events, the District of Columbia filed a Motion for a Stay Pending Appeal today with the US District Court in the case of Palmer v. District of Columbia. They are asking for an immediate administrative stay, a stay pending appeal, or in the alternative, a stay of 180 days.

The Attorney General of DC and his legal team have communicated with the plaintiffs who would not oppose a 90 day stay if  the city council would enact remedial legislation - that is, a carry law that would cover both residents and non-residents - "that complies with constitutional standards." Alan Gura has indicated he will be filing a response by next Monday to the District's Motion.

In their supporting Memorandum of Points, the District points out that the 7th Circuit granted the State of Illinois a 180 day stay which they extended for another 30 days.
In Moore v. Madigan, the Seventh Circuit found that Illinois’ prohibition on the public carrying of guns, with very few exceptions, violated the Second Amendment. 702 F.2d 933. The Seventh Circuit, however, ordered its mandate “stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.” Id. at 942.1 This Court should do the same.
I would note that there was broad support for a concealed carry bill in Illinois by both downstate Democrats as well as Republican members of the Illinois General Assembly. Such a bill had narrowly been defeated in an earlier session on the requirement for a super-majority. No such broad support exists within the DC City Council and they are likely to make a hash of it.

While I would like to think Judge Scullin would tell the District to go lump it, I fully expect that they will get some sort of stay. I hope I'm wrong.

SAF On Their Win Against DC


As you can well imagine, the folks in Bellevue are pretty happy about winning against DC in Palmer v. District of Columbia. They are also ready to fight to preserve that win if DC appeals Judge Scullin's decision. Frankly, I fully expect the powers that be in the District to fight this tooth and nail. While they should have learned something about appealing rulings given former Mayor Adrian Fenty's experience, I doubt that they have.

From SAF:
SAF VICTORY IN PALMER ‘ONE MORE STEP’ TOWARD FIREARMS FREEDOM

BELLEVUE, WA – Saturday’s long-awaited victory in Palmer v. District of Columbia is “one more important step toward firearms freedom,” the Second Amendment Foundation said today after reviewing the ruling, which the District of Columbia now reportedly plans to appeal.

“We will take all necessary steps to defend our victory against an unconstitutional ban on bearing arms outside of one’s home,” vowed SAF founder and Executive Vice President Alan M. Gottlieb. “The decision by Judge Frederick J. Scullin, Jr., reinforces our efforts in challenging burdensome concealed carry laws in several states.”

In his 19-page ruling, Judge Scullin wrote, “In light of Heller, McDonald and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny.”

“Ever since the 2008 Heller ruling by the Supreme Court, the District of Columbia has carried on a campaign of red tape and regulation to discourage citizens from exercising their Second Amendment rights,” Gottlieb said. “This has included bearing arms outside the home for personal protection. We applaud Judge Scullin’s ruling, because the time is long overdue for the city to realize that it is the capitol of the United States, not a police state.

“Washington, D.C. is not some political gulag,” he observed, “but the seat of government in a land of free people. A cornerstone of that freedom is the right to keep and bear arms, and where better to exercise that right than in the nation’s capital? We have no intention of letting anti-gun city officials further delay the ability of law-abiding citizens to exercise their rights. As Dr. Martin Luther King said, ‘A right delayed is a right denied.’

SAF lawsuits have overturned laws not only in Washington D.C., but in several states including Illinois, California, North Carolina, New Mexico, Nebraska, and cities like San Francisco, Seattle, Des Moines and New Haven, among others, Gottlieb noted. Threats of SAF lawsuits have removed well over 100 anti-gun-rights laws across the country as well as stopping hundreds more from being enacted, he added.

“We are focusing our efforts on getting rid of unconstitutional violations of firearms owners’ civil rights in Connecticut, New Jersey, New York, Maryland, California and other states,” he said.

“These victories have been made possible by hundreds of thousands of concerned Americans who have financially supported SAF efforts over the years, Gottlieb noted. “Thanks to them, we have been able to field a first-rate team of legal advocates headed by noted civil rights attorney Alan Gura.

“SAF’s record of legal victories on behalf of the right to keep and bear arms has set the bar for all current and future firearms civil rights litigation,” Gottlieb concluded. “This is not SAF’s last step, but only the latest, in our efforts to win back firearms freedom, one lawsuit at a time.”

Sunday, July 27, 2014

Update On Carry In DC (Updated)


Emily Miller had a post a few minutes ago on Facebook regarding enforcement of the now nullified carry prohibitions in the District of Columbia.

Per DC Police Chief Lanier, the only gun arrests allowed now are DC residents with unregistered guns and non-residents who are prohibited under federal laws from possessing firearms. Everyone else is in the clear.
This sounds like good news to those in metro DC.

You know, if you think about it, for the time being, Maryland residents have greater firearm freedoms in the District than they have in the so-called Free State.

UPDATE: Dave Kopel has an excellent post up at the Volokh Conspiracy on this along with some warnings about carry in DC. He suggests caution until an official pronouncement is made.

His long post also delves into the meaning of the win in Palmer. Tom Palmer, by the way, was one of the original plaintiffs in the case that became DC v. Heller when it reached the Supreme Court. He was dropped along the way due to standing issues by the US Court of Appeals for the District of Columbia.

Impressions On The Win In Palmer v. District Of Columbia


By now, many of you are aware that attorney Alan Gura got another big win for the Second Amendment with his win in Palmer v. District of Columbia. US District Court Judge Frederick J. Scullin, Jr. ruled that DC's ban on any sort of carry outside the home was unconstitutional under any level of scrutiny. The decision has been reported in most of the big papers ranging from the Washington Post to the Chicago Tribune to the New York Times (which they buried on page A16).

Congratulations must go to attorney Alan Gura, the Second Amendment Foundation, and the four individual plaintiffs led by Tom Palmer for bringing the fight to the District of Columbia and DC Police Chief Cathy Lanier. Without their efforts, there would be no win for carry in DC and, potentially, for carry in other areas.

Having read the Memorandum-Decision and Order from Judge Scullin, I was struck by a number of things. First, and most important, was the importance to this win of prior cases ranging from Heller and McDonald to Peruta, Ezell, and Moore v. Madigan. Alan Gura has stressed many times in public appearances and in private conversations that the expansion of Second Amendment rights is a building process. Just like the strategic civil rights litigation of Thurgood Marshall and the NAACP Legal Defense Fund didn't end segregation overnight, neither will the Second Amendment Foundation, the NRA, and others involved in the legal battle to advance our Second Amendment rights win back what we lost overnight.

Second, dissents in past cases are often as important as majority opinions. For example, Judge Scullin quotes from the dissent in the New Jersey carry case of Drake v. Filko (originally Muller v. Maenza) by Judge Hardiman of the 3rd Circuit.

To speak of 'bearing' arms solely within one's home not only would conflate 'bearing' with 'keeping,' in derogation of the Court's holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court.
Perhaps a more important dissent quoted in the case was by Justice Ruth Bader Ginsberg from Muscarello v. United States regarding the "natural meaning of 'bear arms'". Justice Ginsberg said in her dissent that to bear arms means to "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person." While some may question quoting Justice Ginsberg, I think it was a masterful move by Judge Scullin.

Third, even losses in Second Amendment cases can be important for future wins. For example, even though cases such as Kachalsky from New York, Drake from New Jersey, and Woollard from Maryland failed to overturn their respective states' rationales for granting their may-issue carry permits, they still helped Judge Scullin reach the conclusion that the Second Amendment guarantees a right to bear arms outside the home.
In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia's total ban on the public carrying of readyto- use handguns outside the home is constitutional under any level of scrutiny. Therefore, the Court finds that the District of Columbia's complete ban on the carrying of handguns in public is unconstitutional.
 Fourth, it is significant that this decision applies to both residents and non-residents of the District of Columbia. This means that, as of now, the District of Columbia and its entire bureaucracy including the Metropolitan Police Department are enjoined from enforcing the laws forbidding carry outside the home against both groups. While Judge Scullin found the equal protection and right to travel challenges to residency requirements were not ripe, they may come up again in the future after the District develops a concealed carry permit law.

As I said last night on The Polite Society Podcast, I fully expect this decision to be appealed. The Washington Post reported earlier this evening that DC's Attorney General plans to seek a stay in Judge Scullin's order while they decide whether to appeal the loss.

I'll let Alan Gura have the final say on the implications of this case:
“The decision is in effect, unless and until the court stays its decision,” Gura said Sunday. “This is now a decision that the city is required to follow — the idea that the city can prohibit absolutely the exercise of a constitutional right for all people at all times, that was struck down. That’s just not going to fly.”

Gura said allowing citizens to carry handguns for self-defense will cut crime. “This is a fantastic improvement in public safety,” he said. “Yes, we have a problem in America with gun violence. But no, that problem is not the result of law-abiding people carrying guns.”