Year: 2015

I decided I needed to break this up into multiple posts.

10:22AM CST – Sarah Gervase

Sarah is NRA’s Assistance General Council. She is also largely responsible for putting together this seminar. Her topic is Civil Rights Lawsuits against the government under 42 U.S.C. Section 1983 of the Civil Rights Act of 1866, and how to handle those cases. Lawsuits under 1983 are the most common means of for asserting rights against states and localities. The Civil Rights Act that enabled these suits was known as the “Klu Klux Klan Act,” since it was intended to allow Blacks to bring suits in federal courts to assert their rights against state infringement.

The first case she discusses if the house-to-house confiscation of firearms in New Orleans. Most of us will remember this. She describes this as “Steve Halbrook’s finest hour.” She shows the video of three California Highway Patrol officers who tackled and beat and old woman because she was palming an unloaded revolver.You might remember NRA footage from this incident. She said the circumstances were also worse than was shown on the video. This case lead to a civil rights lawsuits on several grounds, including the Second Amendment. These cases prevailed, and resulted in both federal and state reforms to prevent anything like this from happening again.

Sarah goes into a discussion of “qualified immunity,” which makes police officers generally immune from suit, unless their actions violated a clearly established precdent. In order to sue an officer in his personal capacity, one has to overcome qualified immunity. She notes that only in very rare cases do police officers sued in their personal capacity have to pay the claims themselves personally.

There have been cases of police officers using NRA stickers on cars, or using gun ownership as a reason for executing no-knock raids. In one case, Estep v. Dallas County Texas, where an NRA sticker was argued to create sufficient probable cause for a search. A quote from the 5th Circuit Court stands out:

The presence of the NRA sticker in the vehicle should not have raised the inference that Estep was dangerous and that he might gain immediate control of a weapon. Regardless of weather there is some correlation between the display of an NRA sticker and gun possession, placing an NRA stick in one’s vehicle is certainly legal and constitutes expression which is protected by the First Amendment. A police officer’s inference that danger is afoot because a citizen displays an NRA sticker on a vehcicle presents a distubring First and Fourth Amendment implications…
If the presence of an NRA sticker and camaouflage gear in a vehicle could be used by an officer to conclude he was in danger, half the pickups in the State of Texas would be subject to a vehicle search.

Sarah notes that open carry cases have also been fertile grounds for 1983 lawsuits. That’s surprising to no one who has followed this blog. 

On to judgements. Most readers here will remember several big payouts to gun rights groups from Chicago. NRA recieved $633,294.10 from Chicago, and an additional $663,294.10 from Oak Part. Apparently Chicago also ended up reembursing Oak Park for most of their costs. There is a lot of legal voodoo that would seem to go into determining judgements. As a non-lawyer, I’m having more difficulty following. Sarah touches briefly on Bivens Actions, which are essentially 1983 actions against the federal government, the Federal Tort Claims Act, and on State RKBA provisions.

11:13AM CST – Robert E. Sanders

Bob Sanders is an attorney and Former Assistant Director of Criminal Enforcement for ATF.  His presentation is “ATF Licensing and Duties of the Licensee.”

Bob begins his presentation on the incredible growth in federal crimes. He esstimates there are some 40,000 crimes on the book, which certainly doesn’t include all of them. No one really knows for sure. Most of the cases he’s handled involve Federal Firearms Licencees. He notes that, by in large, the industry is made up of small business, who aren’t going to be hiring compliance officers as big players in a regulated industry would typically do, so compliance ends up on the business owner. Not all FFLs are as careful about regulation as they need to be. FFLs are a declining breed. We have lost 2/3rds of our FFL since the 1990s. One reason for this is the purpose of compliance and enforcement within ATF is to revoke licenses, and “That’s where you come in,” he says to the attorneys in the room.

Sanders goes into a brief history of federal firearms laws. Have you ever seen the list of the major gun control acts? I’ll try to summarize:

1927 – US Pistol Service: makes it illegal to use the mail to ship firearms that are concealable on the person.

1934 – National Firearms Act: reglated SBRs, SBSs, Machine Guns, Silencers, and “Any Other Weapons,” by applying a $200 transfer tax, which was quite a chunk of change for the time. It doubled the cost of a Thompson Submachine Gun at the time.

1938 – Federal Firearms Act: required a $1 license to deal in firearms. Required record keeping. Forbade shipping or delivering firearms to persons under indictment for, or were convicted of a “crime of violence.”

1968 – Gun Control Act: repealed the 1938 Federal Firearms Act, and replaced it most of the current regime we live under today. This is where 4473s came from, where all the interstate restrictions came from, and where the classes of prohibited persons was more broadly and closely defined.

1986 – Firearms Owners Protection Act: reformed the most egregious requirements of the Gun Control Act. Allowed mail order ammunition sales. Allow ammunition to be sold by non-FFLs. Limited ATF action. Allowed Safe Travels. Banned Machine Guns manufactured after May 19, 1986. Allowed gun shows.

1993  – Brady Act: required FFLs to conduct background checks on prospective buyers. Still active law, though part of the law that required local LEOs to conduct background checks was struck down by the Supreme Court. But that provision is no longer in force since NICS came on line.

1994 – Federal Assault Weapons Ban: banned scary looking guns by name and by a two feature test. Expired in 2004. No longer active law.

2005 – Protection of Lawful Commerce in Arms Act: provides limited immunity to manufactures, distributors, and dealers from lawsuits designed to bankrupt the industry by holding them responsible for the criminal acts of others.

Sanders relays a number of stories about what to expect with inspections. ATF procedure does not follow the Administrative Procedures Act. The hearing will be at an ATF office, and be presided over by an ATF Employee, rather than an Administrative Law Judge. “It will be the most unfair hearing you will ever have.” He notes there is a statutory right to appeal to Federal District Court, but success in these cases is rare, as most federal judges are loathe to reverse administrative. Appeals beyond District Court are likewise rarely successful.

Sorry for the dead air the last few days, but we’ve been on the road. Now we’re at the NRA Firearms Law Seminar, and I am going to try to live blog the seminar, so keep updating if you’re interested in the speakers and topics. First up is Professor Joyce Lee Malcolm:

8:30AM CDT – Joyce Lee Malcolm

Professor Malcolm starts out with the history of British gun control. It’s amazing how their gun control seems to parallel ours up until fairly recently, only with the British always being a step ahead of us on the way down the slippery slope. British gun control started with World War I, when the government took over many aspects of British life. After the war, they were largely concerned with two things: anarchists and bolsheviks, along with a lot of young and angry men returning from the war. British continued restrictions on gun ownership for self-defense in the 1950s and 1960s, including their “offensive weapons” law, which essentially makes self-defense impossible. It was two mass shootings in Hungerford and Dunblane, which lead to the current handgun ban. That’s lead to the ridiculous situation where the British Olympic Pistol team being unable to train in their own country.

Malcolm goes into the debates that surrounding the restricting of “offensive weapons” in Britain, and relays a story of an MP who knew a woman who carried a knitting needle, and asked proponents of the legislation whether that woman would go to prison for using it on an attacker, as she once did. The MP answered in the affirmative. She also tells the story of a man who was attacked on the tube, draw a cane sword and stabbed his attacker. He was instantly arrested, but it turned out that they had not added cane swords to the list of “offensive weapons,” which Parliament, of course, quickly remedied.

The zeitgeist of the British elite is that the government will protect you. She reports that the BBC even published a guide to citizens about what was allowed, which advised shouting “Call the police!,” if one was attacked, rather than “Help!,” because “Help!” might encourage someone to intervene and harm the attacker. They never view it as a legitimate thing to use deadly force against an attacker, or even very vigorous force. The authorities and elite do not even use the term “self-defense” anymore. It is called “violent force.”

Has it made the British people safer? In 2009, they had the highest victimization rate of any country in Europe. There are people who gets robbed and burglarized over and over, because the criminals know their victims are powerless to stop them. Meanwhile in the United States, violent crime has decreased substantively while the number of firearms and firearms in public has risen.

9:10AM CDT – Steven Halbrook, Ph.D.

Steve Halbrook’s seminar is “Void Where Verboten: Constitutional Challenges to Firearms Prohibitions.” He begins by speaking about how cases had to be argued prior to Heller and McDonald, and giving some background on the professionalization of firearms law. I’ve seen that in just how much this seminar has grown since I’ve been attending it, and I only started post Heller. As Glenn Reynolds will speak to over lunch, the Second Amendment is becoming an ordinary part of Constitutional Law.

Halbrook classifies the actions of lower courts as “massive resistance,” when it comes to how it’s treating the two Second Amendment cases. One exception to that has been Tyler v. Hillsdale County Sheriff’s Dept. (6th Circuit, 2014), where strict scrutiny was applied to a man who was committed while going through a nasty divorce many years ago, but had been fine since. The Court ruled that the law was not narrowly tailored. The judge in the case very eloquently rejected intermediate scrutiny, which has been what the courts have mostly used to gut the intent of Heller and McDonald.

Halbrook gives an update on Heller II, where the DC Circuit upheld the ban on “assault weapons.” and magazine ban. The surprising thing about that case was that the court found that these weapons were in “common use,” but were nonetheless not worthy of constitutional protection. He notes that in the case, they made extensive use of Brady testimony before DC Council, when they originally passed the law. Of course, that testimony was pretty much all nonsense.

Halbrook also notes that DC has argued, on remand, that the basis for imposing registration was so that officers would know whether there was at the scene if they were responding. The only problem is DC got their talking points from the Legal Community to Prevent Gun Violence (LCPGV), and never bothered talking to the police. It turns out the police don’t bother checking the registry before responding to calls. It’s not part of their procedures. Halbrook notes that the “assault weapon” issue is still pending in that case.

Halbrook speaks of the cases he’s arguing in NY, CT, and MD, humorously arguing one of the judges said “You mean to tell me the Glock I keep by the bedside, with a 15 round magazine, isn’t protected by the Second Amendment?” So he’s cautiously optimistic for that one. He noted things did not go that well in the 2nd Circuit (which encompasses New York and Connecticut). He notes the Connecticut case is the first where they have argued that semi-automatic firearms are more deadly than machine guns because semi-automatic fire is more accurate. “So why don’t they ban sights?,” notes Halbrook, “It was Dan Malloy’s legal team that came up with that argument.”

Shifting the topic to bearing arms, and not just keeping them, Halbrook notes why Heller essentially assumed there was a right to bear arms outside the home, having mentioned hunting, self-defense, and other activity outside the home. Nonetheless, that didn’t stop the 4th Circuit from arguing:

One the question of Heller‘s applicability outside the home environment, we think it prudent to await direction from the Court itself.

Also, the Maryland Supreme Court, in Williams v. State:

If the Supreme Court, in dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.

Williams was appealed to the Supreme Court, but they denied certiorari.

Next up will be Panel II. I will be liveblogging that in a new post.