Village Of Deerfield (Illinois) To Appeal Overturn Of Its AWB

The Village of Deerfield, Illinois had passed an ordinance in 2018 that would have banned standard capacity magazines and "assault weapons" (sic) broadly defined. They were sued by the Illinois State Rifle Association and the Second Amendment Foundation in the case of Easterday v. Deerfield. A second case was filed against the village by Guns Save Lives which was supported by the NRA.

The village lost in March when the Lake County Circuit Court issued a permanent injunction against the ordinance. Judge Luis Berrones found that the ordinance was a new law and not an amendment of a prior ordinance. In 2013 when the Illinois General Assembly passed the Concealed Carry Act and an amended FOID Act, they gave home rule municipalities a few days to amend their ordinances which could have included assault weapon bans. After that time, this power was reserved to the state.

Yesterday's Chicago Tribune is reporting that Deerfield plans to appeal.

The Village of Deerfield plans to appeal a judge’s March 22 ruling permanently blocking the village from enforcing a ban on assault weapons and large-capacity magazines.

In a short statement Tuesday, the village announced that Mayor Harriet Rosenthal and the village board had unanimously agreed April 15 to appeal the ruling of Lake County Circuit Court Judge Luis Berrones to the Illinois Appellate Court.

In that ruling, Berrones contended that Deerfield overstepped its authority in April 2018 when it enacted a ban on assault weapons after the Illinois legislature had declared such regulations to be the exclusive power of the state.

The village's statement on the appeal notes that they are being represented pro bono.

We appreciate the continued pro bono services that have been provided already, and that will be provided throughout the appellate process by the Brady Center to Prevent Gun Violence and Mr. Christopher Wilson, partner of the Chicago office of Perkins Coie. We continue to believe that these weapons have no place in our community and that our common-sense assault weapon regulations are legal and were properly enacted."

So an unholy alliance of gun prohibitionists and Big Law (Perkins Coie has 1,000+ lawyers) continues to conspire to help the Village of Deerfield trample on the rights of its citizens to protect themselves. This is lawfare at its worst.

Sharks And Bottom Feeders - Brady Center And Las Vegas Law Firm File Class Action Suit

Sharks are always attracted to blood and bottom feeders exist to scavenge the remains.

Today, little more Friday, less than a week after the Las Vegas mass casualty event, the Brady Center's Legal Action Project in conjunction with Las Vegas class action law firm Eglet Prince plan to file suit in Clark County District Court against Slide Fire Solutions, LP, and other manufacturers and sellers of bump fire stocks. The case is being filed on behalf of everyone who attended the Route 91 Harvest Festival concert on October 1st. The suit will ask for both compensatory damages for the cost of counseling for emotional distress and for punitive damages.

From the joint press release, in part:

LAS VEGAS – October 10, 2017. A class action lawsuit was filed in the District Court of Clark County Nevada on behalf of victims of the deadliest mass shooting in American history that took place on October 1, at the Route 91 Harvest Festival. The suit, filed by Las Vegas law firm Eglet Prince and the Brady Center to Prevent Gun Violence, is against Slide Fire Solutions, LP and the sellers, manufacturers and marketers of "bump stock" devices which convert semi-automatic weapons to the functional equivalent of a machine gun.

This case is on behalf of all the festival goers who suffered emotional distress as a result of the shooting. The lawsuit asks the defendants to pay for the costs associated with counseling and other treatment for emotional distress. The lawsuit also asks the court to award punitive damages. The lawsuit alleges that such damages are appropriate for defendants who provided a product that turned a semi-automatic gun into the functional equivalent of a machine gun, thereby evading longstanding federal law.

The lawsuit asserts that Slide Fire Solutions, LP was negligent in developing and marketing "bump stocks" to the general public without any reasonable restrictions, thereby subverting federal law that has highly regulated machine guns for over 80 years. According to the Complaint, "this horrific assault would not and could not have occurred, with a conventional handgun, rifle, or shotgun, of the sort used by law-abiding responsible gun owners for hunting or self-defense." The complaint goes on to allege that the damage caused to the plaintiffs, "resulted from the military-style arsenal that the defendants manufactured, marketed, and sold to the public, without any reasonable measures or safeguards."

Representing the Plaintiffs are Robert Eglet, Robert Adams, Aaron Ford, and Erica Entsminger of the Eglet Prince law firm, and Jonathan Lowy, of the Brady Center to Prevent Gun Violence. Brady Campaign & Center Co-Presidents, Kristin Brown and Avery Gardiner, released a statement regarding the impact of this case:

The people who attended the concert have suffered so much already. The physical injuries are staggering, and we know the emotional injuries can be equally severe and long term. Brady has decades of experience supporting the victims of gun violence and has been the only organization in the nation focused on seeking justice for them in the courts.

The announcement was made at a press conference on Tuesday, October 10th at 10:30 am PST by Robert T. Eglet of Eglet Prince and Jonathan Lowy, Vice President, Litigation of the Brady Center. The event was held at the law offices of Eglet Prince 400 South Seventh Street, Suite 400 in Las Vegas.

Beyond the obvious gun control political overtones of this case, Eglet Prince attorney Aaron Ford is also the Majority Leader of the Nevada State Senate. His campaign finance reports don't indicate any direct contribution from either Michael Bloomberg or Everytown. However, Everytown and their PAC did contribute over $600,000 to the Nevada Democratic Party. The Eglet Prince law firm itself is a big donor to both Democrats and to the trial lawyers' PAC "Citizens for Justice".

The question is whether this case can go forward given the Protection of Legal Commerce in Arms Act. The Firearm Blog covered this in relationship to Gunbroker.com's decision to not allow any further sales of bump fire stocks on their website. Gunbroker.com asserts that the PLCAA doesn't cover the stocks. However, James Reeves who is an attorney and who writes for The Firearm Blog asserts the PLCAA does cover bump fire stocks but it is very questionable whether private sellers would be protected.

Is a bump fire stock a firearm product? While the courts will have to make the final determination, I'm going to side with those who hold that it is covered by the PLCAA.

If bump fire stocks are found to be covered by the PLCAA, then this case should either be moved immediately to US District Court or dismissed immediately. One would hope that the US Justice Department would file a motion in Clark County District Court asking that the case be moved to US District Court. Given the infestation of DOJ by the "deep state", I'm taking a wait and see attitude on that. In the meantime, we need to keep a watch on this and similar lawsuits.

The full 30-page complaint can be found here.

UPDATE: According to stories in both the Las Vegas Sun and the Las Vegas Review-Journal, the class action lawsuit was actually filed on Friday, October 7th.

Avery Gardiner, co-president of the Brady Campaign, was quoted saying she does not think the PLCAA applies.

Avery W. Gardiner, co-president of the Brady center and the gun control group’s former chief legal officer, said she doesn’t believe PLCAA will protect bump stock manufacturers. “PLCAA covers firearms and ammunition,” she said. “A bump stock is not a firearm and it is not ammunition. It does not qualify for immunity. I would be surprised if the defendants didn’t try to make a PLCAA argument, but they will not win.” Gardiner cited the 2010 letter sent by the ATF, which specifically states that the bump stock “is a firearm part and is not regulated as a firearm.”

That is an argument that is being made in the press who don't know the law but I doubt will be made in court. Under 15 U.S. Code § 7903 (4), a qualified product under the PLCAA includes "a component part of a firearm or ammunition." It can be reasonably argued that a stock - even a bump fire stock - is a component part of a rifle or carbine. Furthermore, Slide Fire Solutions LP and its founder, Jim Cottle, would qualify as a manufacturer and dealer respectively. Slide Fire Solutions LP holds a 07 manufacturer's FFL and Mr. Cottle a 01 dealer FFL. Both are protected classes under the PLCAA.

Way To Diminish Women, Brady Center

I received the Brady Center's email announcing their Los Angeles fund raiser. The host for it will be Viveca Paulin-Ferrell. According to Wikipedia, it notes that she is a trustee of the LA County Museum of Art and had been an auctioneer for high-end auction houses such Bonhams and Butterfield & Butterfield. Given this, you might think she would be the person pictured in the email.

You would be wrong.

Dear XXXXX SOLD! I am thrilled to announce Viveca Paulin-Ferrell to host our Los Angeles Gala Auction again this year! You may know Viveca from her entertainment career and advocacy work, but you may not know that she is also a talented auctioneer who helps pull in the necessary resources to help us fight gun violence. Please join Viveca at this year’s LA Gala on June 7th. This fundraiser comes at a critical time in our fight for gun violence prevention. Viveca and all who attend or contribute to the fundraiser are part of a growing group of people standing up to protect Americans from gun violence. You can join us in person and perhaps bid alongside Viveca’s husband Will (as pictured here), or send in your special donation today. Thank you for adding your support to this important event, and for ensuring we have the resources to arm all Americans with the truth about guns. I hope to see you there, Dan Join us in LA!

It is kind of sad. While Ms. Paulin-Ferrell seems to have had successful career on her own, the only reason the Brady Center wants her is for the famous father of her children.

Brady's Response To Badger Gun Win

I probably should have looked for the Brady Center's response to the outcome of the Badger Guns' case but just didn't want to hear them gloat.

There are some things there were not said in the press release below. First and foremost is the fact that Brady Center attorneys Jonathan Lowy and Alla Lefkowitz were removed from the case and censured by the Wisconsin Supreme Court for legal improprieties.

Second, the "89 people dying every day from guns" statement by Dan Gross gives the impression that all 32,000 plus of those deaths were the direct result of the illegal use of a firearm as well as that firearm being sold improperly by a Federally license dealer. However, the reality is that that number includes suicides, hunting accidents, criminals shot and killed by the police, and, yes, people who were murdered. According to the latest mortality data from the CDC, there were 11,208 homicides using a firearm in 2013. There were 41,149 self-inflicted deaths in 2013 of which about half involved the use of a firearm. As Dan Gross and the coterie of public health researchers in the pockets of the anti-rights movement know, adding suicide numbers grossly distorts the real issue.

Third, the use of the term "gun companies" gives the impression that a straw purchase is the fault of the manufacturer. This, of course, is incorrect. In this case, if the FFL was truly negligent, then the Protection of Lawful Commerce in Arms Act worked as intended because negligent acts are not protected by it.

So with that being said, here is what the Brady Center had to say:

WASHINGTON, DC – In a landmark decision, a Milwaukee jury yesterday found Badger Guns responsible for the illegal sale of a gun that was used to seriously injure two police officers. Lawyers from the Brady Center to Prevent Gun Violence brought the case in 2010.

Until now, the 2005 Protection of Lawful Commerce in Arms Act has made such victories all but impossible, providing gun companies unique legal protections in many cases when they negligently sell or make a gun that ends up being used in a crime.

Dan Gross, President of the Brady Campaign & Center to Prevent Gun Violence said: “This case should serve as a warning to all gun dealers who resort to irresponsible and unsafe business practices. You must be responsible corporate citizens or the Brady Center will hold you accountable. With 89 people dying every day from guns, Americans have had enough of the special rules that make gun companies richer and place ordinary people in danger of being shot and killed.”

The Milwaukee jury awarded over $5 million to the two police officers, finding Badger Guns responsible for the sale to a straw purchaser because the store knew or had reasonable cause to believe that the sale was illegal.

Jonathan Lowy, Director of the Brady Center’s Legal Action Project, who successfully argued against the dealer’s motions to dismiss and summary judgment, said: “Two brave officers and an extraordinary trial lawyer, Pat Dunphy, made history yesterday, and they made America a safer place. Most gun dealers are decent, responsible business people who already do what they can to keep guns out of the hands of criminals. But to those dealers who choose to irresponsibly supply and profit from the criminal market, the message from Milwaukee is clear: protect people over profits, or you will have to pay the consequences to your victims.”

The Brady Center, along with the law firm of Cannon & Dunphy of Brookfield, Wisconsin brought the lawsuit in 2010 on behalf of two police officers injured in the line of duty, Bryan Norberg and Graham Kunisch. Patrick Dunphy tried the case for the officers, assisted by Brett Eckstein.

Bad Apple Lawyers Win One In Milwaukee

The Brady Center won one this afternoon in Milwaukee. A jury decided in favor of the plaintiffs and against Badger Guns in a lawsuit that was supported by the Brady Center. The lawsuit accused Badger Guns of being negligent for allowing a straw purchase. The firearm purchased was later used to shoot two Milwaukee police officers. The jury awarded the police officers $5 million.

From the Milwaukee Journal Sentinel:

The high-profile case, only the second of its kind nationwide, went to the jury of eight women and four men late Monday afternoon and deliberations continued Tuesday. They deliberated for nine hours.

Officer Bryan Norberg and former Officer Graham Kunisch were shot by Julius Burton during a routine stop on Milwaukee's near southside in June 2009. A month earlier, Jacob Collins bought the gun at Badger Guns for Burton, who was too young to buy a handgun from a store. Burton paid Collins $60. Burton is serving 80 years while Collins already finished his two years in federal prison.

Norberg and Kunisch allege in their 2010 suit that Badger Guns, its predecessor, Badger Outdoors, and the owners of both broke the law, were negligent in sales practices and conspired to keep the operation going when federal regulators recommended revoking the license.

The case is the second to make it to trial since a federal law passed granting immunity to gun dealers and manufacturers. The law has exceptions, including allowing plaintiffs to sue if they can show evidence of illegal gun sales. The first such case to go to trial ended in victory for an Alaskan gun store his summer.

The conspiracy allegation by Kunisch and Norberg is aimed at how the store went from being Badger Outdoors to Badger Guns in 2007.

Badger Guns lost its FFL in 2011 for reasons unrelated to this straw purchase.

According to a report on the case by Pierre Thomas of ABC News, the defendants do plan to appeal the verdict.

Brady Center attorneys Jonathan Lowy and Alla Lefkowitz had been forced to withdraw from this case for violating Wisconsin Supreme Court rules of conduct for attorneys.

UPDATE: A commenter on Facebook, Anthony aka The Packetman, pointed out quite correctly that the BATFE would have brought criminal charges against the owners of Badger Guns if they thought they had a winnable case. They didn't.

It should also be pointed out that the standard of proof in a civil trial is much less than in a criminal trial. It only requires a preponderance of the evidence to win unlike in criminal cases which requires beyond a reasonable doubt.

Bad Apple Dealers? What About Bad Apple Lawyers

The Brady Center To Prevent Gun Violence (sic) has an ongoing project called "Stop Bad Apple Gun Dealers". Ostensibly this project is meant to go after gun dealers who knowingly allow firearms to go into the hands of criminals, the mentally ill, and straw purchasers. In reality, the goal is to bankrupt mom and pop firearms dealers through extended legal action.

This project was the topic of a presentation by Florida attorney Cord Byrd at 18th Annual Firearms Law Seminar. Byrd discussed the Protection of Lawful Commerce in Arms Act, the statutory exceptions to the qualified civil liability immunity that it provides, and how the Brady Center is seeking to use state courts to pierce the veil of PLCAA's immunity protection. Byrd then discussed the case of Allen v. Lock N Load where he is the defense counsel to the owners of Lock N Load.

The Protection of Lawful Commerce in Arms Act was passed to stop the many civil cases aimed at gun makers by anti-gun mayors. Congress explicitly called the use of the courts to attack the firearms industry "an abuse of the legal system."  The act provided qualified civil liability protection to gun makers and dealer in both state and Federal courts from the criminal or unlawful misuse of guns and ammo. The law does provide specific exceptions to this qualified immunity.

(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including--

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code;

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26, United States Code.

It is the second and third exceptions that the Brady Center is using to try and pierce the veil of qualified immunity. They are trying to use state statutes on negligence and negligence per se to attack the gun dealers. Moreover, they are trying to use the third exception by claiming the dealer knew it was a straw purchase and then made a false entry into his or her bound book.

In the Lock N Load case, Benjamin Bishop used a shotgun to kill his mother and her boyfriend while they slept. The Brady Center alleges that Lock N Load had denied the sale of a shotgun to Bishop after he failed a NICS check whereupon Bishop came back with his friend Gerald Schwab who bought the shotgun. They then allege that Schwab sold the shotgun to Bishop. Because Schwab allegedly bought the shotgun while accompanied by Bishop, Brady lawyers contend that Lock N Load should have known this was a straw purchase.

It should be noted that BATFE found that Lock N Load did nothing wrong in this case. Moreover, the State's Attorney for Pinellas County made the same finding.

In bringing these cases, the Brady Center attorneys are assisted pro bono by lawyers with large law firms. In this case, it is attorneys from the international law firm of White and Case which has 38 offices in 26 countries. It has US offices in LA, New York, Silicon Valley, Washington, and Miami. They have approximately 1,900 attorneys. By contrast, Cord Byrd is a solo practitioner in Jacksonville Beach, FL concentrating on civil litigation.

This use of pro bono attorneys from major law firms to attack the PLCAA has given me the idea for a series of blog posts. I will be profiling what I call "Bad Apple Lawyers". These are the attorneys who either work for the Brady Center or for these major law firms who are, to be blunt, conspiring to steal our Second Amendment rights. It is past time to shine the light of day on these anti-civil rights attorneys. Fortunately, LinkedIn, Google, and the law firm's own web pages give plenty of info about these attorneys.

I will be starting this series with Jonathan Lowy who heads the Brady Center's Legal Action Project and who was just forced to withdraw from one of their cases in Wisconsin for violating Wisconsin's rules of professional conduct concerning trial publicity

Brady Center Loses In Colorado

Jessica Ghawi was one of the victims of the theater shooting in Aurora, Colorado. In September 2014, the Brady Center brought suit on behalf of her parents against Lucky Gunner LLC, Sportsman's Guide, and two other vendors for "failing to screen the gunman and making it too easy for him to buy ammunition, tear gas and body armor." The case was filed in Arapahoe County District Court. This case was part of the Brady Center's so-called "bad apples" project.

The case was moved to US District Court for the District of Colorado in October 2014 under the diversity of citizenship doctrine. The plaintiffs were from Texas, the late daughter was a resident of Colorado, and the defendants were located in a variety of other states. The case was assigned to Senior Judge Richard Matsch.

Fast forward to late Friday afternoon. Judge Matsch ruled against the plaintiffs and awarded attorney fees to Lucky Gunner and Sportsman's Guide.

Upon the foregoing, it is ORDERED that plaintiffs’ claims as to all defendants and this civil action are dismissed. Pursuant to C.R.S. §13-21-504.5, defendants Lucky Gunner and the Sportsman’s Guide are entitled to an award of reasonable attorney fees and costs to be determined after filing motions pursuant to D.C.Colo.L.Civ.R.54.3 within 14 days after entry of judgment pursuant to this order.

I hope to have more on this decision after I've had time to read and digest the opinion. In the meantime, I wonder if the Brady Center will be the ones paying the attorney fees or are they going to stick the parents with the bill.

I should note for the record that I am an affiliate of Lucky Gunner and a customer of Sportsman's Guide. Indeed, when I got home from work on Friday, I found a package from Sportman's Guide which contained, among other things, ammo.

If You Want To Donate, Here Are Some Better Groups

Jonathan Lowy of the Brady Center recently sent out the e-mail seen below crowing about going three for three in court cases involving certain semi-automatic rifles whose cosmetics horrify the gun prohibitionists. He is referring to cases that challenged new state laws that created a magazine ban, an "assault weapons" (sic) ban, or both. The states involved were Connecticut, Maryland, and New York.

After the Sandy Hook tragedy where a gunman fatally shot 20 children and 6 adults, state lawmakers finally said ‘ENOUGH IS ENOUGH’ and took action.

New York, Connecticut, and Maryland made it more difficult to buy military-style assault weapons and high-capacity ammunition magazines, so these weapons of war would never again threaten lives in our homes, schools and communities.

Unfortunately, the corporate gun lobby saw a threat to their profits and went to court to challenge these laws.

At the Brady Center’s Legal Action Project, we didn’t let these attacks on our public safety go unchallenged. We filed amicus briefs and worked closely with state officials to help them defend these life-saving laws. Law firms with our national pro bono alliance, Lawyers for a Safer America, were critical to these efforts.

WE ARE 3-for-3 SO FAR. Federal trial judges in ALL 3 STATES have upheld the new laws. Your support helped us win these victories.

But our work continues — the gun lobby is appealing the rulings, which means we’re still working hard with states and filing amicus briefs to meet the challenge. On August 5, we filed a brief in the New York case. Next week we’re filing in Connecticut.

These federal appeals cases are critically important – the rulings will set far-reaching precedents on the power of states to protect their communities from gun violence.

We need your support to preserve the victories we’ve won so far and make sure the corporate gun lobby isn’t allowed to put profits over people’s lives.

Please support the Brady Center today to help us keep our winning streak going, and protect lives in our nation’s homes, schools and communities.

With gratitude,

Jonathan Lowy
Director, Brady Center Legal Action Project

I'm surprised that Mr. Lowy didn't include the nonsensical ruling out of Colorado which upheld the Hickenlooper mag ban.

The recent decision out of Maryland does show that certain judges who are ignorant about firearms and who have a bias against them will listen to what the Brady Center puts into their amicus briefs. Even though those of us in the gun culture consider their arguments to be "authentic frontier gibberish" we still need to counter them. Thus I donate to groups like the Second Amendment Foundation, the Mountain States Legal Foundation, and the NRA Civil Rights Defense Fund who will present the counter arguments to the Jonathan Lowy's of the world.

I would encourage you to do the same if you can.

Media Bias Or Lazy Reporting - You Make The Call

The Brady Center has announced that they plan to sue the state of Kansas and Gov. Sam Brownback (R-KS) over that state's one-year old Second Amendment Protection Act. That Kansas law exempts firearms manufactured and owned in the state from "federal law, regulation, or authority." The Brady Center is contending the law is unconstitutional.

Here is where Tim Carpenter of the Topeka Capital-Journal shows either his bias towards gun control and/or is guilty of lazy reporting for taking the description of the Brady Center straight from their press release.

The Brady Center is a nonprofit organization that develops and implements public safety programs and utilizes the courts to reduce gun violence. The center's Legal Action Project represents victims of gun violence in cases against irresponsible gun sellers and owners.

Let's parse that description. About the only correct parts of that two sentence description that are accurate are "Brady Center", "nonprofit organization", and "utilizes the courts".

The Brady Center programs do nothing to improve the public's safety nor to promote the safe handling of firearms. Furthermore, it uses the court system not to reduce "gun violence" (sic) but rather to maintain repressive gun control laws and to attempt to suppress any moves towards an expansion of civil rights. Finally, the Legal Action Project seeks economic retribution against firearms manufacturers, dealers, and owners for the criminal actions of others.

If mainstream journalists wonder why we don't trust them, you have to look no further than that concluding description of the Brady Center.

Anti's Seek En Banc Review Of Peruta Decision

You just knew that the gun prohibitionists would not take the win in the Peruta decision lying down especially since San Diego Sheriff Bill Gore decided to accept the decision.

Today, in what seems to be a coordinated effort, California Attorney General Kamala Harris, the Brady Campaign, the Legal Community Against Violence, the California Peace Officers Association, and the California Police Chiefs Association filed petitions requesting an en banc hearing. The State of California represented by Harris and the Brady Campaign also filed motions to intervene in the case.

02/27/2014	121	Filed (ECF) Amici Curiae California Peace Officers Association and California Police Chiefs Association petition for rehearing en banc (from 02/13/2014 opinion). Date of service: 02/27/2014. [8996109]--[COURT UPDATE: Attached searchable version of petition. Resent NDA. 02/27/2014 by RY] (PRC)
02/27/2014	122	Submitted (ECF) Intervenor brief for review and filed Motion to intervene. Submitted by State of California. Date of service: 02/27/2014. [8996638] (GDB)
02/27/2014	123	Submitted (ECF) Intervenor brief for review and filed Motion to intervene. Submitted by Brady Center to Prevent Gun Violence. Date of service: 02/27/2014. [8996736] (NRO)
02/27/2014	124	Filed (ECF) Amicus Curiae Legal Community Against Violence petition for rehearing en banc (from 02/13/2014 opinion). Date of service: 02/27/2014. [8996737] (SJF)

In an article by Emily Miller this evening, Chuck Michel questioned whether any of these parties have standing.

Chuck Michel, the west coast counsel for the National Rifle Association, said Ms. Harris‘ motion to intervene was far out of line because her office wasn’t part of the lawsuit.

“They are trying to improperly influence the court,” Mr. Michel said in an interview. “The are stretching the rules to file in order to get their arguments in front of the court in the hopes that a liberal judge will get the message and ask for a vote himself.”...

“Obviously, what this tells us is the folks that advocate civilian disarmament are upset about the opinion and want to throw everything they can at it to bottle up the 9th Circuit or get it overturned,” said Mr. Michel, whose firm, Michel and Associates, represented the plaintiffs in the Peruta case up to the appeals court level.

UPDATE: As to why Kamala Harris et al are trying to get the Peruta decision reviewed and overturned, I think this story from Fox News pretty much gives the reason.

Gun owners are flooding the sheriff's offices in two California counties with applications for concealed weapon permits following a bombshell ruling two weeks ago by a federal appeals court that citizens need not justify their requests.

Orange and Ventura counties have dropped the "good cause" standard for issuing conceal carry permits after the requirement was struck down Feb. 13 by the U.S. 9th Circuit Court of Appeal. A three-judge panel of the court ruled 2 to 1 that the Second Amendment bars California counties from requiring law-abiding gun owners who want to carry concealed firearms to demonstrate special, individualized needs for protection.

More than 500 applications have poured in to the Orange County Sheriff’s Department in just two weeks — roughly the total number of applications filed in 2013, a spokesman said. Orange County Sheriff Sandra Hutchens announced on the department's website that the county will comply with the federal court's order immediately, sparking the wave of applications.

Once the proles get their permits to carry you just can't keep them down anymore.

Williams V. Beemiller, Inc. - NY Court Says PLCAA Doesn't Apply

In a decision last Friday in New York State, the Appellate Division, Fourth Judicial Department reversed the dismissal of a case, Williams et al v. Beemiller, Inc., et al, involving the manufacturer of Hi-Point firearms, its distributor, and a licensed dealer under the Protection of Lawful Commerce in Arms Act. They remanded the case back to Superior Court for trial. The firm representing Hi-Point (Beemiller, Inc.), the Renzulli Law Firm, had won the dismissal of a similar case in Connecticut last year. Williams was represented in the suit by the Brady Center.

This reversal has gotten a good deal with play in the non-firearms press with stories in the Wall Street Journal, ABC News, and industry publications like Insurance Journal.

Attorneys for the distributor, MKS Supply, are undecided about whether to appeal or not but do believe the case will ultimately be dismissed.

Jeffrey Malsch, a lawyer for MKS, said he is reviewing the decision.

“We believe (the lower court’s ruling) was a courageous and legally correct decision, but the Fourth Department was unwilling to follow his well reasoned opinion,” he said. “Whether we appeal or not, we are confident that ultimately the facts will contradict the baseless allegations in the complaint and the case will be dismissed.”

This case involved a Buffalo, New York teen, Donald Williams, who was misidentified as a member of a rival gang and shot. The weapon used was a 9mm Hi-Point pistol which was purchased at a gun show in Ohio from a licensed dealer. It appears that it was a straw purchase even though the court documents allege the sale of the pistol to a New York State resident.  However, under the Gun Control Act of 1968, an out of state resident cannot purchase and take direct delivery of a handgun. The handgun must be shipped to FFL in the purchaser's home state who will then run the NICS check along with complying with local and state laws governing the purchase of a handgun.

While the court said it was undisputed that this matter falls within the PLCAA's general definition of a "qualified civil liability action", they said in this case one of the six permitted exceptions to a "qualified civil liability action" did apply.

Of particular relevance here, a “qualified civil liability action” does not include “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought” (15 USC
§ 7903 [5] [A] [iii] [emphasis added]).

The court went on to say that when reviewing a motion to dismiss, they must accept the facts as stated in the complaint and accord the plaintiffs the benefit of the doubt.

Applying that standard, we agree with plaintiffs that the court erred in dismissing the complaint inasmuch as they sufficiently alleged that defendants knowingly violated various federal and state statutes applicable to the sale or marketing of firearms within the meaning of the PLCAA’s predicate exception.

The statutes that the defendants are alleged to have violated are those involving straw purchases and trafficking of firearms illegally. They especially allege this with regard to the dealer Charles Brown who operated out of his home.

In October 2000, Brown allegedly sold Bostic and/or Upshaw handguns, including the gun used to shoot plaintiff, at a gun show in Ohio. According to plaintiffs, Brown knew or should have known that Upshaw and/or Bostic were purchasing the 87 handguns for trafficking in the criminal market rather than for their personal use because (1)they had purchased multiple guns on prior occasions; (2) they paid for the guns in cash; and (3) they selected Hi-Point 9mm handguns, which are “disproportionately used in crime” and have “no collector value or interest.”

To conclude, the court in general accepted all the allegations of the Brady Center on behalf of the plaintiff Donald Williams. They also are going to allow the Brady Center to go on a fishing expedition into Brown's relationship with MKS Distributors.

 Ultimately, I think this case will be dismissed against all the defendants but especially Beemiller, Inc. dba Hi-Point Firearms. Since they sold to an intermediary distributor, it will be hard to argue that they should be held responsible for the actions of a dealer over whom they had no control nor direct relationship.

This case was the topic of a recent segment of NRA News with Cam Edwards interviewing Steve Halbrook regarding the court's decision. He thinks it will be ultimately dismissed whether on appeal from this court or in the Superior Court for Erie County.

The court's decision can be found here. The Brady Center's breathless press release can be found here.

A Question To Ponder

The Brady Center to Prevent Gun Violence (sic) is holding their gala event in New York City on Thursday, October 4th. They plan to honor B-list actors who've made public service announcements for them as well as highlight "men and women whose lives have been forever altered by gun violence."

Included in the list of those "whose lives have been forever altered" was this:

Aurora theater shooting victims Ethan Rodriguez-Torrent (who escaped without physical injury) and his friend Stephen Barton (who was shot in the neck and shoulders), who had stopped in Denver to visit a friend during their cross-country cycling trip;

How is Ethan Rodriguez-Torrent a "theater shooting victim" if he had no physical injuries? Is the Brady Center claiming the Mr. Rodriguez-Torrent has PTSD or other mental disorders other than hoplophobia, that is? Was just being in the theater enough to be able to claim victimhood?

I can understand calling the friend a victim as he was actually shot by the deranged student but I'm having a hard time accepting that Mr. Rodriguez-Torrent is a victim. By extension, if you've ever witnessed a hostile encounter, in person or on TV, then you are a shooting victim. I've watched the Zapruder film of JFK being assassinated in Dallas as well as have vague memories of watching Jack Ruby kill Lee Harvey Oswald on TV so does that make me a shooting victim?

By the dumbed-down standards of the Brady Center, I guess it does. I'm a victim, you're a victim, we're all victims now. Victim of what I'm still not sure but victims nonetheless.

How Important Are Four Minutes?

Ask the Brady Center.

In a case coming from Connecticut, Gilland v. Sportsman's Outpost, Inc., four minutes meant a lot. From Larry Keane, General Counsel of NSSF:

After the Superior Court granted the motion to dismiss, the plaintiffs continued their attack against the PLCAA by renewing their motion to file a third amended complaint and separate motion to reargue the order dismissing their case. Unfortunately for the Brady Campaign, their attorneys filed their paperwork four minutes after the filing deadline. The Superior Court subsequently denied the motion to reargue as untimely and denied their motion to amend — in part because the plaintiffs had already been granted several opportunities to establish that their claims were not barred by the PLCAA and failed to do so each time.

In this case the plaintiffs tried to hold a store in Connecticut responsible for a wrongful death claim as well as negligence for a firearm that was stolen from it. The defendents argued that under the Protection of Lawful Commerce in Arms Act (“PLCAA”) they couldn't be sued and the Superior Court agreed.

The Brady Center appealed to the Connecticut Appellate Court arguing for a chance to reargue their case and again challenging the PLCAA's constitutionality. This appeal was denied and the court issued a ruling affirming the Superior Court's decision dismissing the case on PLCAA grounds and upholding its constitutionality.

The full opinion of the Superior Court in Hartford from May can be found here.

The NSSF reported on this in their May 31st Bullet Points saying:

Last week a Connecticut trial court dismissed a wrongful death lawsuit filed by the Brady Center against a Connecticut firearms retailer, Sportsmen's Outpost, on the grounds that the case was barred by the Protection of Lawful Commerce in Arms Act (PLCAA). A firearm and ammunition were stolen from the dealer in 2007 and used by the thief several weeks later to murder his ex-wife and commit suicide. The Brady Center unsuccessfully argued that the stolen firearm was somehow transferred by the dealer and that the dealer should have conducted a Brady background check on the thief when he walked into the store acting like a customer asking to see firearms. Of course, the Brady Center knows background checks can only be performed when a firearm is being transferred, not whenever any customer asks to look at a firearm. The U.S. Department of Justice intervened in the case to defend the constitutionality of the PLCAA. Representing Sportsmen's Outpost was the Renzulli Law Firm of White Plains, N.Y.

Weapon Of Mass Death

In the "it's OK for us to have but it isn't for you peasants" category comes this comment from Los Angeles Police Chief Charlie Beck announcing his support for Rep. Carolyn McCarthy's HR 308 ban on standard capacity magazines.

"There is no reason that a peaceful society based on rule of law needs its citizenry armed with 30-round magazines," Police Chief Charlie Beck said at a news conference, adding that the clips transform a gun "into a weapon of mass death rather than a home-protection-type device.''

Beck at his promotion to Police Chief

Beck made that comment yesterday in Los Angeles. There is no word if he also thinks "weapons of mass death" should be forbidden to his police officers but somehow I doubt it.

I also wonder what the response time of his police department is to home invasions. Frankly, from everything I've read or heard from experts, a home owner doesn't need to be fumbling around making magazine changes during the high stress of a home invasion. It is just inviting even more disaster.

Probably everything you need to know about Chief Beck can be inferred from his comment above and the picture below. A man is known by the company he keeps.

Beck (center) at 2009 Brady event in LA

FoxNews Covers D'Cruz Case

Larry Thompson, attorney for James D'Cruz and the NRA, and Paul Helmke, head of the Brady Center, appeared on Fox and Friends on Saturday morning to debate whether 18-20 year olds should be allowed to legally purchase handguns as well as carry concealed in Texas.

In the short time period, I would say that Thompson got most of his points made while Helmke said that except for voting 18 year olds aren't mentioned in the Constitution. So, if one is to listen to Paul Helmke, your only right as an 18 year old is to vote for Obama in big numbers and then shut up. I wish Fox had given them more time to discuss this case.




H/T James D'Cruz

A Cruel Game

The Brady Center is engaged in a cruel game with Texas Tech freshman James D'Cruz. As the lead plaintiff in two lawsuits sponsored by the NRA, he has become the prime target of the Brady Center. The lawsuits challenge respectively the Federal prohibition on sales by FFL's of handguns to 18-20 years olds and the denial by the State of Texas of Concealed Handgun Licenses to non-veteran, non-military 18-20 year olds.

As Sebastian at SnowFlakesInHell has noted, they have mischaracterized his Facebook page as filled with "angry, violent Facebook postings". They are now using pictures from his Facebook page in a fundraising campaign.

It is as I say above a cruel game that the Brady Center is playing with D'Cruz. If he complains about it, he will be portrayed as a whining teenager not ready to handle adult responsibilities like being a Concealed Handgun Licensee. If he does not respond to the mischaracterization, they will feel free to continue to vilify him as violent and angry. He's damned if he does and damned if he doesn't. Still, given they are going to savage him one way or another, the best thing he probably can do is to do nothing and keep leading the exemplary life that he has led in the past.

I wonder how Paul Helmke would have reacted if his daughters Laura and Kathryn had been attacked when they were 18 like he and the organization he heads are doing to James D'Cruz. I am sure that like any good father he would have been rather angry about it - as well he should.

So then why is it OK to demonize and vilify a young Hispanic male who has led what seems to be an exemplary life and is now a freshman in college?