Man Stripped of Guns After Lawsuit Rival Files Red Flag Complaint.

Weren’t we most definitely assured that abuse like this could never happen?

An incident in New Jersey is testing just how far red flag laws can be pushed, and the results aren’t pretty.

The gun seizure comes as part of a heated court case between Alfred Conti and his former physician, Dr. Matthew Kaufman. The defamation lawsuit revolves around negative reviews left by Conti.

Months after the suit was opened, police stripped Conti of firearms and ammunition on Sept. 25.

The firearm seizure was put into action thanks to a red flag complaint made by Kaufman and his lawyer, the Asbury Park Press reported.

Before his guns were taken, it seems Conti was just intent on receiving treatment. Hurting from an apparent failed surgery, Conti was first kicked out of the clinic where Kaufman practiced, allegedly due to his aggressive behavior with staff.

Shortly after, Conti would write the negative reviews that sparked the entire lawsuit.

A month later, Conti called Kaufman’s lawyer several times, asking for the doctor to see him again in an attempt to end his pain. In one call played to the court, the injured man used vulgar language and threatened to bring the authorities into the matter.

Conti’s error appears to be in mentioning he knew where both Kaufman and the doctor’s lawyer lived in one of the calls.

However, both sides agreed that it doesn’t appear any threat was made.

Despite this, police acted on the red flag complaint and seized multiple pistols, a rifle and ammunition from Conti. According to police, the injured man cooperated peacefully as authorities disarmed him.

As red flag laws go on the books in more locations, cases like this that sit squarely in a gray area are virtually guaranteed to keep happening.

Supreme Court to Review Lawsuit Pitting Michael Mann Against Free Speech

The Supreme Court on Friday will consider whether to take up a prominent climatologist’s defamation suit against a venerated conservative magazine, in a case that pits climate scientists against the free speech rights of global warming skeptics.

The dispute between scientist Michael Mann and the National Review has drawn attention from lawmakers, interest groups, academics, and media, as the court weighs adding a potentially blockbuster First Amendment showdown to an already politically charged docket.

Scientists hail Mann’s lawsuit as a necessary defense against efforts to erode public confidence in the scientific consensus that climate change is an urgent threat, while free speech advocates have rallied around the iconic conservative publication.

The case has made for strange bedfellows, with the National Review receiving backing from the Center for Investigative Reporting, which has produced award-winning coverage of climate change; Senate Majority Leader Mitch McConnell (R-Ky.); The Washington Post; and the American Civil Liberties Union (ACLU).

Symposium: Supreme Court should address lower court nullification of the Second Amendment

David B. Kopel is Research Director at the Independence Institute and an Adjunct Professor at University of Denver, Sturm College of Law. Randy Barnett is Carmack Waterhouse Professor of Legal Theory at Georgetown Law. Kopel wrote and Barnett  joined an amicus brief filed by Second Amendment professors on behalf of the petitioners in New York State Rifle & Pistol Association Inc. v. City of New York.

In the 2008 decision District of Columbia v. Heller, the Supreme Court affirmed that the Second Amendment is an individual right of all Americans, like everything else in the Bill of Rights. Yet many lower courts have refused to accept the Supreme Court’s holding. Among the worst offenders are the U.S. Courts of Appeals for the 2nd and 9th Circuits. In New York State Rifle & Pistol Association v. New York City, the Supreme Court should address the problem of lower court nullification of the Second Amendment.

The case involves New York City’s ban preventing licensed handgun owners who live in the city from taking their handgun outside the city. Under the regulation, licensed owners could not take their handgun to a second home, or anywhere else. They could not use their New York City handgun at a target range in New Jersey or a safety training class in Westchester County.

The only places for a New York City resident to practice gun safety were seven target ranges within the city, whose population is 8.6 million. These small urban ranges cannot match what is available elsewhere. For example, while small ranges allow shooting straight ahead at a short distance, facilities with more space can teach students how to shoot while moving, and how to defend against attackers who are not directly in front of them. By preventing better training, the NYC travel ban gravely endangered the lives of law-abiding handgun owners.

When the NYC travel ban was challenged, the 2nd Circuit stated that the ban probably did not even implicate the Second Amendment. According to the appeals court, the travel ban was such a trivial inconvenience that judicial review of the law was probably unnecessary.

The 2nd Circuit is not the only court to pretend that obvious restrictions on the Second Amendment have nothing to do with the Second Amendment. The Supreme Court in Heller specifically instructed lower courts not to use the “rational basis” test in Second Amendment cases. Under the rational basis test, the most lenient standard of review in constitutional challenges to government actions, laws are almost automatically upheld. In the 2017 case Texeira v. Alameda, the 9th Circuit used the rational basis test to validate a California county’s ban on all new gun stores.

Another problem in some lower courts is willful cluelessness about the actual exercise of Second Amendment rights. In this case, the 2nd Circuit brushed off the travel ban by stating that city residents who venture outside the city can just rent a handgun.

Actually, many ranges do not rent guns. More importantly, forced rentals contradict gun safety and good training. As firearms-safety instructors emphasize, a person who might have to use a gun for self-defense should train with that particular gun. In the crisis of a violent attack, the defender often relies on muscle memory. This requires using the particular firearm with which the defender has become familiar via practice.

Even within a given make and model, handguns vary in operation. Just as 10 cars of the same model and year will all drive and handle a little differently, handguns vary too. One reason is small variations in the sizes of parts. Another reason is that final assembly is done by hand, with the assembly person manually adjusting internal settings, such as trigger pressure. As guns are used, they differ even more, due to variances in wear, replacement or upgrading of parts, and so on. Thus, one gun may reliably feed a particular brand of ammunition, and another gun may not. The only way to know how one’s gun will perform is to practice with that gun.

For example, “trigger break” is the exact point in trigger movement when the trigger initiates the firing of the ammunition. By muscle memory, a proficient user knows this exact point for her gun.

The “reset point” is where the trigger returns after the gun has fired. When releasing the trigger, the proficient user should move her finger exactly far enough forward to let the trigger reset—and no further. Then, the user is ready to pull the trigger again with just the right amount of finger movement.

Learning the trigger break and reset point requires muscle memory, built through practice with a particular gun. Practice with one’s own gun improves control, safety and accuracy.

According to the 2nd Circuit, preventing practice with one’s own firearm is such a minor inconvenience that the Second Amendment is not even at issue. For the sake of argument, the 2nd Circuit did imagine that the travel ban should be reviewed under “heightened scrutiny.” Heightened scrutiny requires the court to carefully examine the evidence about the burdens and benefits of the challenged law. The burden of proof is on the government.

The weakest form of heightened scrutiny is called “intermediate scrutiny”—an easier standard than “strict scrutiny.” Strict scrutiny was originally created for judicial review of government discrimination based on race; intermediate scrutiny was first used for review of government discrimination based on sex.

The 2nd Circuit says that strict scrutiny never applies to the Second Amendment. Some federal courts elsewhere have said the same. So the 2nd Circuit reviewed the travel ban under intermediate scrutiny.

The Supreme Court’s cases have established detailed rules for applying intermediate scrutiny. Among them: 1. The government must produce substantial evidence. 2. The government must overcome rebuttal evidence. 3. The government must prove that its objective is achieved more effectively through the regulation than through other means. 4. The government must consider substantially less burdensome alternatives. In upholding the travel ban, the 2nd Circuit ignored all these requirements.

According to the Supreme Court in City of Los Angeles v. Alameda Books, the government cannot “get away with shoddy data or reasoning.” And in Edenfield v. Fane, the court emphasized that the government cannot pass intermediate scrutiny with merely an “affidavit … which contains nothing more than a series of conclusory statements.”

What was the evidence in favor of the NYC travel ban? An affidavit with nothing more than a series of conclusory statements. The entire evidence in support of the travel ban was an affidavit from a former gun-licensing official. He speculated that licensed New York City handgun owners transporting unloaded handguns outside the city might perpetrate “road rage.”

The affidavit did not supply a single example of a licensed New York City resident misusing a transported handgun before the 2001 travel ban. To the 2nd Circuit, the retired official’s speculations were all that was needed to uphold the ban.

The problem of lower courts’ relying on flimsy evidence in Second Amendment cases is widespread. When the 3rd Circuit upheld New Jersey’s confiscation of all magazines with over 10 rounds in Association of New Jersey Rifle & Pistol Clubs v. Attorney General of New Jersey, dissenting Judge Stephanos Bibas observed: “[T]he majority’s version of intermediate scrutiny is too lax. It cannot fairly be called intermediate scrutiny at all. Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period.”

Not all lower courts have refused to enforce the Second Amendment. When Chicago outlawed all target ranges open to the public, the U.S. Court of Appeals for the 7th Circuit held the ban unconstitutional. In response, Chicago adopted zoning rules banning indoor target ranges from 98 percent of the city. Further, parents were prohibited from teaching firearms safety to their teenage children at target ranges. The 7th Circuit held these laws unconstitutional too. Similarly, a federal district court in Chicago overturned a ban on all gun stores within city limits.

Decisions by the U.S. Courts of Appeals for the District of Columbia Circuit and 7th Circuit resulted in adoption of fair laws for bearing arms in D.C. and Illinois. In both places, an applicant for a concealed carry permit must pass safety training and a fingerprint-based background check. Applicants may not be denied a permit just because a government official opposes exercise of the right to bear arms.

The lower court nullification has been noticed. Justices Clarence Thomas and Neil Gorsuch and the late Antonin Scalia dissented from several cert denials in which lower courts upheld especially egregious violations of the Second Amendment. For example, a San Francisco law prohibits residents from having a firearm available for immediate self-defense in a bedside table while sleeping—or even while changing clothes. A Chicago suburb outlaws many common firearms, including the most widely owned rifle in American history.

Scalia and Thomas denounced the opinion upholding the Chicago suburb’s gun ban as an example of widespread “noncompliance with our Second Amendment precedents.” Regarding the Supreme Court’s refusal to consider the San Francisco ordinance, Thomas and Scalia observed: “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it.” In short, as Thomas stated in his dissent from the denial of certioriari in Silvester v. Becerra, “the lower courts are resisting this Court’s decisions in Heller and McDonald and are failing to protect the Second Amendment.”

The problem is well known. It is time for the Supreme Court of the United States to defend its preeminent role in constitutional interpretation and to address lower-court nullification of the Second Amendment.

Trump to flip 11th Circuit to majority GOP-appointed judges; third appeals court to change majority.

Senate Republicans confirmed one of President Trump’s judicial nominees to the 11th U.S. Circuit Court of Appeals Tuesday and will flip the federal appeals court to a majority of Republican-appointed active judges with another confirmation later this week.

It will be the third federal appeals court to be turned to a GOP-majority under the president’s promise to remake the federal judiciary with a conservative bent.

Judge Robert J. Luck cleared the Senate Tuesday by a 64 to 31 vote.

Judge Luck currently serves on the Florida Supreme Court, where he was appointed earlier this year by Gov. Ron DeSantis. He has been a judge in lower Florida courts since 2013. Prior to that, Judge Luck served as an assistant U.S. attorney in the Southern District of Florida.

With the addition of Judge Luck, the circuit now has six active Republican-appointed judges and six Democratic-appointed ones. When adding senior judges to that count, the circuit has 11 GOP-appointed and nine Democratic.

Mike Davis, president of The Article III Project which backs Mr. Trump’s judicial nominees, said it’s important for the president to flip the federal appeals courts so when cases that decide binding law for the circuit are heard by the full panel of active judges, Republicans are at an advantage.

“As you see President Trump flip these critically important federal circuit courts and transform the judiciary, it reminds Republicans and conservatives why elections matter,” Mr. Davis said.

Arguments set for case of Ohio gun owner drunk inside house

Guns and alcohol don’t mix, we all know that. But possession of a firearm while above the legal alcohol limit in your own home is against the law?  Does it also mean that if you imbibe at all you can’t have any guns in your home? What about if it was necessary to defend against a burglary, or some other instance where you had to defend yourself, or others? Are you simply out of luck in Ohio if you’ve ‘had a few’?
This case sure sounds like a prosecutor wanted to make that point.

Laws against carrying while drinking come from the idea that doing so isn’t being responsible. This is the law in Ohio and most other states and that’s okay. But this is stupid.

COLUMBUS, Ohio (AP) — The Ohio Supreme Court will hear arguments in February to decide whether a law prohibiting gun owners from carrying firearms while intoxicated should be applied inside a gun owner’s home.

Lawyers for a Clermont County man arrested in 2018 after he acknowledged having an unloaded shotgun while drunk say the law is unconstitutional when applied to homeowners.

They say a person’s sobriety or intoxication level should have nothing to do with possessing a weapon “in the hearth and home.”

Gun control advocates argue the safety of Ohio residents and responding police officers would be jeopardized if the court overturned the arrest.

The court has scheduled oral arguments for Feb. 25. A decision isn’t expected for months.

Supreme Court asks Solicitor General to weigh in on whether gun case is moot

On Friday, the Supreme Court requested the Solicitor General to submit his views on the mootness of New York State Rifle & Pistol Association v. New York City, a Second Amendment challenge pending before the Supreme Court that the city of New York has been desperately trying to wriggle its way out of since certiorari was granted. The City’s principal argument is that, because they changed the subject law, there is no case to hear. (Despite, of course, several doctrines preventing exactly this type of abuse from standing.)

Moments after the Court requested the Government’s brief, the Solicitor General submitted their letter brief. The filing, quite flatly, rejects the City’s mootness argument. This is only a brief, of course, not a binding opinion. It doesn’t foreclose the City’s argument. It does, though, make the City’s argument look weak.

Here’s the slightly re-paginated letter, with legal citations deleted, to make it easier reading:

Honorable Scott S. Harris
Clerk
Supreme Court of the United States
Washington, D.C. 20543
Re: NY State Rifle & Pistol Assn., Inc., et al. v. City of New York, et al., No. 18-280
Dear Mr. Harris:
On November 15, 2019, this Court ordered the United States to file a letter brief addressing whether this case is moot. In the United States’ view, respondents have not established that this case is moot.
1. The prospect that petitioners may seek damages suffices to keep this case alive.
This Court has held that a case becomes moot only if intervening events mean that a court can no longer “grant any effectual relief” to the plaintiff Mission Prod.

The Court has further held that “money damages” for past injuries qualify as effectual relief, and that, as a result, a claim for such damages, “if at all plausible, ensure[s] alive controversy.

(“[M]ootness is defeated so long as damages or other monetary relief may be claimed on account of the former provisions.”). Most courts have held that even a claim for nominal damages prevents a challenge to a repealed statute from becoming moot.
Although one court of appeals has held that a claim for nominal damages does not suffice, even that court agrees that a claim for actual damages ensures a live controversy.
Under those principles, this case remains live, because petitioners could still seek and a court could still award actual or nominal damages on account of the transport ban’s alleged violation of their Second Amendment rights.
Petitioners have brought their lawsuit under 42 U.S.C. 1983, a statute that authorizes courts to award “damages * * * to compensate persons for injuries that are caused by the deprivation of [their] constitutional rights.”

The entities they have named as defendants—the City of New York and the License Division of the Police Department—are municipal bodies, which enjoy neither sovereign immunity nor official immunity from claims for damages.
Moreover, the complaint includes allegations, and the summary-judgment affidavits include evidence, that the application of the transport ban to petitioners caused them injury in the past.
And petitioners have never forsworn or waived damages in any of their pleadings or filings.
Although petitioners’ complaint does not specifically request damages, any omission in the complaint would not, by itself, be conclusive as to mootness if petitioners were now to assert a claim for damages.

And in the unusual circumstances of this case— where the City waited until after the grant of a writ of certiorari to amend the challenged law, and where the City waited until after the completion of briefing on mootness to make additional representations about the future consequences of past regulatory violations, see infra—it may well be excusable for petitioners to make an express request for damages at this stage, even if they have not already done so.
In all events, questions about whether it is too late for petitioners to seek damages go to the merits, not to jurisdiction. Under Article III, the relevant inquiry is whether it is still possible for a court to grant “effectual relief,” not whether “[u]ltimate recovery” is certain or even likely.
It is still possible to grant damages for the past violations of petitioners’ constitutional rights. To the extent petitioners seek such damages, the case remains live.

2. Petitioners propose several alternative theories under which this case remains live.

a. Petitioners first contend that this case remains live because they could still suffer future consequences as a result of their past violations of the repealed law.
We agree that, in principle, the possibility of future consequences for past violations of a repealed law can be sufficient to keep a case from becoming moot.
We further agree with petitioners that, on the record before this Court, the possibility of such future consequences does keep this case from becoming moot.
Under state law, a licensing officer enjoys “considerable discretion” in evaluating applications for handgun licenses. On the current record, there is a real possibility that licensing officers in the City would exercise that discretion to hold past violations of the transport ban against petitioners when considering future applications for handgun licenses.
The City, however, has informed the United States that, in exercising its discretion, the City will not give adverse effect to past violations of the former transport ban in future licensing 2  decisions.
If the City makes such a representation to the Court, then the possibility of future enforcement by the City would be too “remote” to keep this case alive.

b. Petitioners also contend that this case remains live because they still object to restrictions contained in the new provisions enacted by the Police Commissioner and the State. Pets. Resp. to Suggestion of Mootness 13-16.
Although petitioners’ objections to the new provisions would establish a live controversy regarding those provisions, they do not establish a live controversy regarding the City’s original transport ban.

c. Finally, petitioners invoke the principle that a defendant’s voluntary cessation of a challenged practice moots a case only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”  But that principle does not apply to the new statute enacted by the State of New York.
First, the voluntary cessation doctrine applies only to “a defendant ‘s voluntary cessation of a challenged practice.” The State of New York is not a defendant; it is a third party.
Second, this Court has never applied the voluntary-cessation doctrine to a statute enacted by a state legislature or Congress. The Court has instead “consistently and summarily held that a new state [or federal] statute moots a case.”

Sincerely,
Noel J. Francisco
Solicitor General

Appeals Court Denies Qualified Immunity To Cop Who Argued Citizens Have No Right To Defend Themselves Against Armed Intruders

Remember, I’ve said more than once, I’m not anti-cop. I’m anti-stupid cop. This is one that qualifies.

The Fourth Circuit Court of Appeals has denied immunity to a cop involved in a no-knock raid that left the raided house’s resident, Julian Betton, paralyzed. This case was touched on briefly in a previous post discussing legal arguments made by law enforcement officers that attempt to portray people in their own homes as dangerous aggressors when police crash through their doors unannounced.

In this case, South Carolina police officer David Belue’s legal rep tried to tell the court Betton’s response to a bunch of heavily-armed men rushing through his door — grabbing a gun and moving into the hallway from the bathroom — created a situation where Betton deserved every bullet fired at him by officers. In other words, if Betton didn’t want to get shot, he shouldn’t have been in his own house when it was invaded by officers who never informed him they were police officers.

Here’s a recap of the events leading to the lawsuit, from the Fourth Circuit’s decision [PDF]:

In the afternoon of April 16, 2015, a team of plain-clothed law enforcement officers armed with “assault style rifles” used a battering ram to enter Julian Ray Betton’s dwelling to execute a warrant authorizing a search for marijuana and other illegal substances. The officers did not identify themselves as “police” or otherwise announce their presence before employing the battering ram. From the rear of his home, Betton heard a commotion but did not hear any verbal commands. Responding to the tumult, Betton pulled a gun from his waistband and held it down at his hip.

Three officers, including Myrtle Beach, South Carolina police officer David Belue, fired a total of 29 shots at Betton, striking him nine times. Betton suffered permanent paralysis resulting from his gunshot wounds.

This shooting was immediately followed by a bunch of lies. Officer Belue first claimed Betton fired his gun at officers. The ensuing investigation showed Betton’s weapon was never fired. Faced with this direct contradiction of his statement, Officer Belue revised his, claiming Betton pointed his gun at officers. According to Betton, he never got the chance to point a gun at anyone. The moment he appeared with his gun, officers opened fire.

Officers also lied about their entrance to Betton’s home. They claimed they knocked and announced their presence. Betton’s surveillance camera told the real story. Nine seconds elapsed between the officers’ arrival on Betton’s lawn and their entrance into his house. None of the officers present appeared to announce anything before bashing down his door and swarming inside.

Officer Belue also initially had asserted that the agents had knocked on Betton’s door and announced their presence, and had waited before forcibly entering the home. However, footage from the video cameras on Betton’s front porch showed that the officers had not knocked on the door or announced their presence, and had not waited any length of time before using the battering ram to gain entry.

To the contrary, the video recordings showed that the officers ran up the front steps and immediately began using the battering ram. Moreover, Garcia confirmed that the officers did not announce that they were law enforcement personnel before entering the home. The record before us also contains a statement from a former DEU agent, who related that the DEU agents “almost always forcibly entered [residences] without knocking and announcing” their presence.

Despite this — and despite inverting the Castle Doctrine to say its the invaders of a home who need protection from the home’s occupants — Officer Belue still sought qualified immunity. The district court denied his request, pointing to the facts still in dispute, as well as the officer’s actions.

Regarding Betton’s unlawful entry claim, the magistrate judge found that the officers had not knocked or announced their presence before entering, and that there were no exigent circumstances warranting abandonment of the “knock and announce” procedure. The district court adopted the magistrate judge’s recommendation to deny qualified immunity on the unlawful entry claim, and Officer Belue has not challenged this ruling in the present appeal.

With respect to Betton’s excessive force claim, the magistrate judge found that there were material facts in dispute regarding whether Betton had pointed a gun at the officers before Officer Belue fired his weapon. Thus, the magistrate judge concluded that a jury could find that Betton did not pose an immediate deadly threat to Officer Belue or others justifying the use of deadly force.

The Appeals Court sees no reason to upend this finding, especially when there’s precedent on point saying actions like this clearly violate Constitutional rights.

[A]s of 2015, the law in this Circuit was clearly established that a person is entitled to be free from excessive force when the person “is on his property or in his residence, is in possession of a gun that he is not pointing at police officers, and is not given a warning or command to drop the gun before he is shot.”

Officer Belue also argued Julian Betton was so inherently dangerous it didn’t matter whether officers announced themselves or ordered him to put his weapon down before opening fire. This claim basically turns Betton’s mere existence into an exigent circumstance where Constitutional rights no longer apply. The Appeals Court isn’t interested in advancing this terrible legal theory.

[N]o information in Betton’s criminal history suggested that he was inherently violent to a degree that the officers would have been justified in storming into his home unannounced and in firing their weapons at him when he did not present a current threat. Notably, the search warrant was based on Betton’s conduct of selling small amounts of marijuana on two occasions. And, although the informant observed security cameras and two firearms in Betton’s home, there was no evidence indicating that Betton had engaged in threatening or violent conduct toward the confidential informant.

Betton’s case goes back to the district court and Officer Belue will have to face a jury if he doesn’t attempt to settle this lawsuit first. Denying immunity preserves the rights of homeowners to defend themselves from unexpected intruders in their homes. Officer Belue’s attempt to separate one action (his shooting of Julian Betton) from another of his actions (entering a home unannounced) is soundly rejected. Even when an officer subjectively “fears for his safety,” context matters. If officers want to use the element of surprise to their advantage in no-knock raids, they can’t turn around and claim residents have no right to react with alarm to armed intruders.

Colorado Supreme Court considers gun magazine limit

DENVER (AP) — Gun rights groups are urging the Colorado Supreme Court to follow guidance from the U.S. Supreme Court to throw out the state’s ban on gun magazines that hold more than 15 rounds.

In arguments before the state court Wednesday, the groups’ lawyer, Barry Arrington, said that since the U.S. Supreme Court has found that the right to bear arms is a fundamental right, the state has a heavier burden to prove that the magazine limit is needed. He said they cannot meet that standard.

The law was passed in 2013, a year after the Aurora theater shooting, in an effort to limit the number of deaths in mass shootings. While large capacity magazines were used in the Columbine and Aurora shootings, Arrington said that have also been widely used by gun owners, with millions of them in existence when the law was passed.

\The legal challenge brought by Rocky Mountain Gun Owners and the National Association for Gun Rights is based on the gun rights’ provision in the Colorado Constitution, which expressly protects the right of people to be armed to defend their homes, property and themselves. Given that, Colorado Solicitor General Eric Olson told the justices they have the right to interpret the state’s constitution on their own, noting that U.S. Supreme Court guidance changes over time.

Olson argued the state Supreme Court should instead stick with the approach it established in 1994 in a challenge to an assault weapons ban passed by Denver — deciding whether a law furthers a legitimate government interest without being too broad.

The case that Arrington wants the state court to look to came later. In 2008, the U.S. Supreme Court ruled that Americans have a constitutional right to keep handguns and commonly used firearms in their homes for self-defense. The ruling struck down the District of Columbia’s 32-year handgun ban as incompatible with gun rights under the Second Amendment.

This just in:

The Supreme Court has denied cert. for the Remington v Soto case in Connecticut where the state is allowing a suit against Remington to proceed under their  Unfair Trade Practice law.

The orders list is here:

CERTIORARI DENIED

19-168 REMINGTON ARMS CO., LLC, ET AL. V. SOTO, DONNA L., ET AL

SCOTUS Gun Watch, Episode 4

More surprising to me than the fact that the Court denied review was the fact that there was no noted dissent from the denial.

Since January 2017, President Trump has appointed, and the Senate has confirmed,158 life-tenured federal judges, including 20 who today serve in Texas. Taken together, the president’s nominees over the last three years have filled one-quarter of the seats on our nation’s circuit courts of appeals, and two of the nine seats on the U.S. Supreme Court.

Few legacies will be longer lasting than this judicial one. These new judges are principled constitutionalists who have demonstrated excellence and professionalism throughout their legal careers.

These are judges we can rightly expect will remain faithful to the law. This is good news for all of us who care about the Constitution, individual liberty, and democracy. I’ll be joining the president Wednesday at the White House to recognize this historic achievement.

Supreme Court to Weigh Taking Bellwether Case Against Gun Industry

Here’s another suit that will give us a pretty good look at how our new justices feel about business and RKBA. It only takes 4 justices to grant certiori and the court hear the case. I definitely figure Thomas will vote for it and Alito too. We’ll see if Kavanaugh and Gorsuch have the will as well. I might even get surprised and there be more because if the Connecticut Supreme Court isn’t slapped down and hard, you see not just suits against gun manufacturers, but enterprising lawyers filing suit against any other business that makes things that people might misuse, like cars.

Another interesting point is that Bushmaster, the manufacturer of the rifle used at Newtown, wasn’t even owned by Remington at that time.
If the justices can’t see that this is nothing more than ‘lawfare’ and the anti-gun forces are simply out to play the old ‘the process is the punishment game, we’ve got more than a lack of judicial fortitude to deal with.

A suit by Sandy Hook families against Remington, the maker of the AR-15-style rifle used in the massacre, tries to test a law shielding the firearms industry from liability.

The Supreme Court will consider this week whether to hear a case seeking to pierce firearm manufacturers’ legal immunity in the aftermath of shootings.

The case, Remington Arms Co. v. Soto, pits relatives of those killed in the Sandy Hook Elementary School shooting against Remington, the maker of the AR-15-style rifle used in the Dec. 14, 2012, massacre in Newtown, Conn. Twenty first graders and six educators died.

The lawsuit challenges a 2005 law protecting gun makers from legal liability when their weapons are used in crimes. The families argue that Remington violated Connecticut’s Unfair Trade Practices Act by recklessly marketing the rifle to disturbed young men like the Sandy Hook gunman through product placement in violent video games and advertising pitches like “consider your man card reissued.”

Most attention in the current Supreme Court term has been on whether the justices will expand Second Amendment rights. But should they allow the case to move forward to trial, either by refusing to hear Remington’s appeal or by hearing the case and ruling in the families’ favor, the lawsuit could provide a legal road map for victims and survivors seeking to hold gun makers accountable for gun violence.

The justices will meet on Friday to discuss whether to take the case. The court may grant or deny review shortly afterward, or continue considering the matter.

The appeal was brought by Remington after the Connecticut Supreme Court allowed the lawsuit to proceed to trial. Remington says the families’ case, if successful, would “eviscerate” the 2005 federal law.

The National Rifle Association, the Connecticut Citizens Defense League, Second Amendment law professors, nine states and 22 members of the House are among the signatories of a half-dozen legal briefs supporting Remington. The N.R.A. argued that the families’ challenge to the 2005 law could open the door to other lawsuits, potentially putting the firearm industry “out of business by unlimited and uncertain liability for criminal misuse of their products.”

Remington said in a legal filing that the Connecticut lawsuit was “widely recognized as a bellwether for the future of firearms litigation nationwide.”

The Connecticut Supreme Court agreed with a lower court judge that one element of the case cannot be tried, saying that the federal shield law precluded the families’ argument that Remington had “negligently entrusted” a weapon of war to an untrained civilian population.

 

Indiana Supreme Court Applies Eighth Amendment to Curb “Oppressive” Asset Forfeitures.
The ruling is a continuation of the same case in which the federal Supreme Court ruled that the Excessive Fines Clause of the Eighth Amendment is “incorporated” against state governments and applies to asset forfeitures.

In February, in the case of Timbs v. Indiana, a unanimous Supreme Court ruled that the Excessive Fines Clause of the Eighth Amendment applies to state and local governments (as well as the federal government) and that it constrains civil asset forfeitures. Civil asset forfeiture policies enable law enforcement agencies to seize property that they suspect might have been used in a crime—including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor. The scale of this legalized robbery is staggering. In some years, federal law enforcement alone seizes more property through asset forfeiture than burglars steal throughout the nation.

The Timbs decision could potentially lead to tighter constraints on asset forfeiture. But the Supreme Court left one key issue unaddressed: what qualifies as an “excessive” fine in the asset forfeiture context? The federal Supreme Court remanded that question to the Indiana Supreme Court, from which the case had been appealed to the federal Supreme Court in the first place. Earlier this week, the Indiana court issued a decision laying criteria for what qualifies as “excessive.” Nick Sibilla of the Institute for Justice (the public interest law firm that represented the property owner before both the federal and state supreme courts), has a helpful summary in an article in Forbes:

To determine if a forfeiture would be “grossly disproportional” and unconstitutional under the Excessive Fines Clause, the Indiana Supreme Court devised a three-factor test. First, Hoosier courts will now have to consider the “harshness of the punishment,” which may include considering if the forfeiture would remedy the harm cause by the offense and to what extent, as well as property’s value and role in the offense.

Judges will also need to determine what effect forfeiting the property would have on the owner. After all, courts already consider a person’s economic resources when it comes to levying court costs and civil punitive damages.

“The owner’s economic means—relative to the property’s value—is an appropriate consideration,” Chief Justice Rush wrote. “To hold the opposite would generate a new fiction: that taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.”

Second, courts in Indiana must determine the “severity of the offense,” which includes examining statutory penalties, the sentence imposed, and the harm cause by the crime. Finally, judges will also be required to consider an owner’s culpability and “blameworthiness for the property’s use as an instrumentality of the underlying offenses.” A forfeiture may be unconstitutionally excessive “if a claimant is entirely innocent of the property’s misuse.”

This test is likely to significantly curb abusive forfeitures in the state of Indiana, particularly in cases where the owner is in fact innocent of any crime, but merely had the misfortune of owning a car or other property that someone else allegedly used in the commission of some offense. The court emphasized that “if a claimant is entirely innocent of the property’s misuse, that fact alone may render a use-based… fine excessive.”

The court points out that “in recent decades, the absence of certain shields against the oppressive use of civil forfeiture has encouraged the widened use of aggressive in rem for forfeiture practices.” This decision will help change that.

At least for the moment, the new test will only apply in Indiana courts. But, as  the first state supreme court ruling on the subject to follow the federal Supreme Court’s decision in this same case, it could influence future decisions on the subject in other state and federal courts.

CCRKBA DECLARES DEMOCRATS HAVE ‘HIDDEN AGENDA BEHIND IMPEACHMENT’

I don’t think it’s that ‘hidden’. Ever since the courts grabbed power, way back in Marbury v Madison, and everyone let them get away with it (almost like it was a plan) who was selected as judges has been of major concern to all parties involved.

BELLEVUE, WA – The Citizens Committee for the Right to Keep and Bear Arms today declared there is a “hidden agenda” behind the impeachment efforts of House Democrats led by Nancy Pelosi and it is designed to tie up the U.S. Senate and derail efforts to confirm more pro-Second Amendment judges to the federal courts.

“It is clear to us that Capitol Hill anti-gunners are doing everything in their power to prevent confirmation of conservative judges who will adhere to the Constitution,” said CCRKBA Chairman Alan Gottlieb. “By burdening the Senate with this nonsense, Democrats believe they can prevent confirmation of pro-Second Amendment judicial nominees during the final year of President Donald Trump’s first term.”

Gottlieb noted that the president is fulfilling perhaps his most important campaign pledge, which was to bring balance back to the federal courts. Restoring that balance could be the president’s greatest legacy, he said.

“The same people pushing impeachment have been staunch allies of the gun prohibition lobby,” Gottlieb observed. “Anti-gunners have been horrified since Day One of Donald Trump’s presidency that he was actually determined to rein in the activist federal court system by nominating judges who understand there are ten amendments in the Bill of Rights, and that the Second Amendment really means what it says.

“More than eleven years after the landmark 2008 Heller ruling and more than nine years after the 2010 McDonald decision,” he continued, “some courts still act as though neither of those Supreme Court rulings existed. But the president has been filling court vacancies with solid, intelligent jurists who understand the difference between regulated privileges and constitutionally-enumerated, fundamental rights. Capitol Hill anti-gunners and their gun prohibitionist friends can’t stand it, and they’re using the impeachment crusade as a smoke screen to distract the Senate from doing its duty.

“This isn’t about impeaching the president,” Gottlieb stated. “This is about impeaching our Second Amendment rights. I guarantee that American gun owners are going to remember this in 2020.”

Armed man at Missouri Walmart pleads guilty to lesser charge

Young man is lucky he got off that easy. Probation and a  weekend in the Greene County jail.

SPRINGFIELD, Mo. — A man who caused panic at a Missouri Walmart when he walked inside wearing body armor and carrying loaded weapons in what he described as an effort to test his right to bear arms pleaded guilty to making a false report Friday after initially being charged with a more serious terrorist-related felony.

Dmitriy Andreychenko, 21, pleaded guilty to an amended misdemeanor charge after originally being charged with making a terrorist threat.

Police arrested Andreychenko on Aug. 8 after he filmed himself walking through the store with the weapons, prompting shoppers and employees to leave. The incident came just days after 22 people were killed during an attack at another Walmart in El Paso, Texas. An off-duty firefighter held Andreychenko at gunpoint until officers arrived…………

Under the terms of the plea, he was ordered to serve 48 hours of shock incarceration and two years of probation. He also must receive firearm training, Patterson said (in) the release. The making a terrorist threat (charge) carried a sentence of up to four years in prison.

Gun Owners of America filed an amicus brief in the Ninth Circuit, defending standard capacity magazines in the Duncan v. Becerra case.

California state law bans any magazine that can hold over ten rounds. But in March, a district court judge blocked the law from going into effect. Not long after, California appealed the decision to the full Ninth Circuit Court. Now the 9th circuit has long been called the ‘9th Circus’ due to its many wacko rulings that were later overturned by the Supreme Court and also its noted anti-gun rulings, but things have changed. Almost 1/2 the court has been replaced during President Trumps first term in office and the new justices are noted by the Federalist Society as being a lot more attuned to citizen’s rights protected by the Bill of Rights.

We refute several anti-gun arguments in our brief, including the idea that the Second Amendment does not apply to so-called “military-style” firearms. For example:

The Second Amendment protects first and foremost the right to self-defense — not just against petty criminals, but against governments, both foreign and domestic. In order to combat foreign aggression or domestic tyranny, military-grade arms are, as the framers understood, “necessary to the security of a free State.”

GOA Amicus Brief-Duncan v Becerra

 

Judge Tosses Pittsburgh Gun Laws Passed After Massacre

There’s a reason state legislatures passed preemption laws about guns and some other things. They had had enough of cities creating a patchwork of laws that were designed for nothing more than to harass people the politicians didn’t like.

A judge on Tuesday struck down gun restrictions that the Pittsburgh City Council imposed after last year’s synagogue massacre, noting that Pennsylvania state law forbids municipalities from regulating firearms.

Pittsburgh’s trio of gun ordinances violate state law and are therefore “void and unenforceable,” Allegheny County Judge Joseph James ruled.

State law has long prohibited municipalities from regulating the ownership or possession of guns or ammunition, and Pennsylvania courts have thrown out previous municipal attempts at regulation.

“We are extremely pleased with Judge James’ decision today striking down the City of Pittsburgh’s unlawful firearm ordinances and signage, which only sought to eviscerate the inviolate right of the residents of the Commonwealth to keep and bear arms and ensnare law-abiding citizens through a patchwork of laws,” said attorney Joshua Prince, who represents Firearms Owners Against Crime and other groups that sued to overturn the measures.

City officials vowed an appeal.

Pittsburgh “will continue to fight for the right to take commonsense steps to prevent future gun violence,” said Timothy McNulty, a spokesman for Democratic Mayor Bill Peduto.

The gun restrictions were passed in April after a mass shooting at Pittsburgh’s Tree of Life Synagogue that killed 11 worshippers. The ordinances would have restricted military-style assault weapons like the AR-15 rifle authorities say was used in the attack. It also banned most uses of armor-piercing ammunition and high-capacity magazines, and allowed the temporary seizure of guns from people who are determined to be a danger to themselves or others.

The overwhelmingly Democratic council passed the legislation, and Peduto signed off. Council members who voted no called the legislation a waste of time and money, given the uncertainty over whether it would ever go into effect. Supporters said it was worth the effort.

The city “expended a large amount of energy” arguing that its new laws did not run afoul of state law, the judge noted, but city officials “are not able to avoid the obvious intent of the Legislature” to prevent municipalities from enforcing their own gun laws.

Pittsburgh tried enforcing an assault-weapons ban in 1993, but the state Legislature quickly took action to invalidate the measure, and the Pennsylvania Supreme Court ruled that city officials had overstepped.