Monday, August 16, 2010

Post-McDonald Litigation Updates

After the initial flurry of lawsuits being filed after the McDonald v. Chicago decision, there was a quiet period while we waited for responses by the defendant states and municipalities. Some of the firsts responses are starting to come in.

Bateman et al v. Perdue et al

This was the first of the post-McDonald cases filed. It directly challenged North Carolina's "emergency powers" act which imposed restrictions on the sale of firearms and ammunition during a declared emergency as well as forbidding the possession of a firearms outside of a person's residence.

On Wednesday of last week, Stokes County filed a motion to dismiss the case against them. In effect, they said they'd never banned firearms in their ordinances or proclamations and that they were not responsible for state law.

Then, on Friday, the State of North Carolina moved to dismiss the cases against Governor Perdue and Secretary of Crime Control and Public Safety Reuben Young. They are basing their claim on "Plaintiffs' failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction." They submitted 89 pages of exhibits with their motion.

Given the extensive nature of the exhibits, I will post a separate analysis of this later.

Benson et al v. City of Chicago et al

This is the suit brought by the National Rifle Association challenging the new Chicago gun laws that were enacted within days of the McDonald decision. The NRA has filed an amended complaint in this case as of August 13th.

I will post a comparison of the original complaint and the amended complaint as soon as I can.

Owner-Operator Independent Drivers Association et al v. Lindley

This is one of the cases being brought in the State of California challenging AB 962, the Handgun Ammunition Sales Law. O-OIDA brought this suit on, among other grounds, that the new law violates the FAA Act of 1994.

All parties in the case have stipulated that that State of California has an additional 28 days in which to file a response to this complaint. This gives California until September 17th in which to file an answer.

Baker v. Biaggi et al

This is the case in which the State of Nevada State Parks are being sued by the Mountain States Legal Foundation over the issue of possession of firearms for self-protection. It seeks to have a tent declared a temporary residence in which a person would be permitted to have a firearm.

The Nevada Attorney General's office has filed an Answer on behalf of three of the five defendants. Their Answer includes David Morrow, Administrator of Nevada State Parks; Eric Johnson, Nevada State Parks Fallon Regional Manager; and Andrew Bass, Park Supervisor I, Wild Horse State Recreation Area. Excluded in the Answer are Allen Biaggi, Director of the Nevada Dept. of Conservation and Natural Resources, and Allen Newberry, Chief of Operations and Maintenance.

After an Answer has been received on behalf of the latter two, I will do an update on this case.

Mishaga v. Monken

This is a new case that has flown under the radar. It was filed at the end of July by the Mountain States Legal Foundation on behalf of Ellen Mishaga, an Ohio resident, against the head of the Illinois State Police for denying her a Firearms Owner Identification (FOID) card. Mrs. Mishaga contends that as a frequent visitor to the State of Illinois she is precluded under Illinois law from possessing a firearm for self-defense in a residence because she doesn't have a FOID card. The only exceptions to the requirement to possess a FOID card are those there to attend a shooting competition or those who possess an Illinois non-resident hunting license. Neither of these exceptions applied to her. Accordingly, she applied for a FOID card and was denied twice because she doesn't have an Illinois driver's license or state ID card - both of which she is not eligible to possess.

I will have a more extensive and separate post on this case soon.

This case is being brought in U.S. District Court for the Central District of Illinois.

UPDATE: Welcome Instapundit readers!

The comparison of the original and amended complaint in Benson et al v. Chicago et al can be found here.

The post on Mishaga v. Monken, the case by an Ohio resident challenging Illinois's FOID Card, is found here.

I am still working on the post about the motions to dismiss in the first post-McDonald case - Bateman et al v. Perdue et al.


  1. Mishaga v. Monken is the case, I think, that will have wider repercussions.

    There are a number of states (NJ, IL, etc) whose prior art of law takes the position that possession of a firearm isn't a right, it's a highly conditioned privilege, and that armed self defense is not among the general justifications for possession of a firearm.

  2. I think you are absolutely correct on that. I have been reading the Illinois FOID law today and it is very hunting and sporting use oriented.

  3. And moments after you posted Gura/SAF have a challenge to Chicago's range ban in Ezell v. Chicago.

    Missing from your list is the old Hodgkins v. Holder which is now Dearth v. Holder - though I guess that is pre-McDonald like Sykes and Pena...


  4. Gene - Wouldn't you know it?! I just posted the full complaint in Ezell et al v. Chicago.

    As to Dearth v. Holder, I think it should be considered pre-McDonald like Sykes and Pena. Nonetheless, it is an important case and one that bears watching.

  5. (430 ILCS 65/2) (from Ch. 38, par. 83‑2)
    Sec. 2. Firearm Owner's Identification Card required; exceptions.

    (b) The provisions of this Section regarding the possession of firearms, firearm ammunition, stun guns, and tasers do not apply to:

    (10) Nonresidents who are currently licensed or registered to possess a firearm in their resident state;

    It would appear that if she has a permit to carry from Ohio, she is good to go.

  6. You would think so except that the state of Ohio neither registers nor licenses a person "to possess a firearm". That seems to me to be the critical difference. I puzzled over that provision of 430 ILCS 65/2 as well.

  7. Unfortunately, with regard to Bateman, a 12(b)(6) motion (failure to state a claim upon which relief can be granted) can be valid regardless of how many exhibits are included.

    While attaching 89 pages of exhibits could be good in that it's a shotgun approach to litigation (something's gotta hit, right?), if certain elements of standing or the law in question are not proven, then a 12(b)(6) motion could be granted.

    Regardless, thank you for the update. Fantastic, and a fantastic site. I'll be stopping by often.

    Jeff Schreiber
    Founder/Managing Editor, America's

  8. Jeff - The 89 pages of exhibits were not in the complaint as filed by Alan Gura. Rather they were part of the State of North Carolina's Motion to Dismiss as part of the Memorandum in Support of the Motion.

    NC is arguing a 12(b)(6) motion as well as on "ripeness" grounds.

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