Category: Courts

Biden Goes To Court, Demanding Warrantless Surveillance Powers
An attempt to bypass congress.

A request by the Biden administration to the courts for the renewal of contentious warrantless surveillance powers, has stoked controversy.

These surveillance powers, demanded by American intelligence agencies, are on the verge of expiration. Critics argue that this move either reflects business as usual, or reflects a sidestepping of spying reforms.

According to US Senator Ron Wyden (D-OR), the decision of the US Department of Justice to pursue an extension of the FISA Section 702 for a year without congressional consideration manifests a disregard for reforms aimed at safeguarding American rights.

Expressing his criticism, Wyden offers an alternative legislation which he and other lawmakers proposed that seeks to maintain Section 702 surveillance albeit under strict regulations constraining unwarranted spying on Americans. Wyden is particularly irked by the White House’s direction to prosecutors to seek renewal of the FISA powers in court before his proposed alternative legislation could be wholly considered by Congress.

Senator Wyden did not mince words in expressing his dissatisfaction with the approach of the Biden administration and the Justice department. “It is utterly ridiculous that the Biden Administration and the Justice Department would rather risk the long-term future of an important surveillance authority than support a single meaningful reform to protect Americans’ rights,” he said.

The contentious issue revolves around Section 702, an amendment to the Foreign Intelligence Surveillance Act that allows US intelligence agencies to spy on foreigners considered a threat to national security. Despite the fact that this surveillance is meant for overseas intelligence targets, the incidental warrantless surveillance of US residents has prompted concerns among privacy advocates.

The FBI’s past missteps of using Section 702 to snoop on various individuals ranging from US elected officials to campaign donors adds credence to these concerns. Section 702 is scheduled to lapse by April 19 unless Congress moves to renew it. This has led to a push among several lawmakers to alter the rules and add guards against potential future abuse. To keep it running, Congress had granted a four-month extension last year.

There are currently four legislative proposals in the works to renew Section 702. Two of these initiatives, namely the Protect Liberty and End Warrantless Surveillance Act and the Government Surveillance Reform Act of 2023, entail a warrant requirement prior to investigations.

The White House has resisted attempts to reform Section 702.

California Violated the Second Amendment by Disarming People Based on Nullified Convictions
A federal judge ruled that three men who committed nonviolent felonies decades ago are entitled to buy, own, and possess guns.

The state of California employed Kendall Jones as a correctional officer for 29 years and as a firearms and use-of-force trainer for 19 years. But in 2018, when Jones sought to renew the certificate of eligibility required for firearms instructors, the California Department of Justice (DOJ) informed him that he was not allowed to possess guns under state law because of a 1980 Texas conviction for credit card abuse. Jones committed that third-degree felony in Houston when he was 19, and his conviction was set aside after he completed a probation sentence.

According to the DOJ, that did not matter: Because of his youthful offense, which Jones said involved a credit card he had obtained from someone who falsely claimed he was authorized to use it, the longtime peace officer was permanently barred from owning or possessing firearms in California. That application of California law violated the Second Amendment, a federal judge ruled this week in Linton v. Bonta, which also involves two other similarly situated plaintiffs.

“Plaintiffs were convicted of non-violent felonies decades ago when they were in the earliest years of adulthood,” U.S. District Judge James Donato, a Barack Obama appointee, notes in an order granting them summary judgment. “Each conviction was set aside or dismissed by the jurisdiction in which the offense occurred, and the record indicates that all three plaintiffs have been law-abiding citizens in every respect other than the youthful misconduct. Even so, California has acted to permanently deny plaintiffs the right to possess or own firearms solely on the basis of the original convictions.” After considering the state’s cursory defense of those determinations, Donato thought it was clear that California had “violated the Second Amendment rights of the individual plaintiffs.”

Like most jurisdictions, California prohibits people with felony records from buying, owning, receiving, or possessing firearms. That ban encompasses offenses that did not involve weapons or violence, and it applies regardless of how long ago the crime was committed. Federal law imposes a similar disqualification, which applies to people convicted of crimes punishable by more than a year of incarceration (or more than two years for state offenses classified as misdemeanors). But the federal law makes an exception for “any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored.”

California’s policy is different. “The DOJ will permit a person with an out-of-state conviction to acquire or possess a firearm in California only if the conviction was reduced to a misdemeanor, or the person obtained a presidential or governor’s pardon that expressly restores their right to possess firearms,” Donato explains. The requirements for California convictions are similar.

In Jones’ case, the same state that suddenly decided he was not allowed to possess guns employed him as the primary armory officer at the state prison in Solano, where he specialized in “firearms, chemical agents, batons and use of deadly force training,” for nearly two decades. Despite all that experience, the sudden denial of his gun rights put an end to his work as a law enforcement firearms and use-of-force instructor in California. The other two plaintiffs told similar stories of losing their Second Amendment rights based not only on nonviolent offenses that happened long ago but also on convictions that were judicially nullified.

According to the 2018 complaint that Chad Linton filed in the U.S. District Court for the Northern District of California, he was pulled over by state police in 1987, when he was serving in the U.S. Navy at Naval Air Station Whidbey Island in Washington. The complaint concedes that Linton was “traveling at a high rate of speed” on his motorcycle while “intoxicated” and that he initially “accelerated,” thinking “he might be able to outrun” the cops before he “reconsidered that idea, pulled over to the side of the highway, and voluntarily allowed the state trooper to catch up to him.”

Linton was charged with driving under the influence, a misdemeanor, and attempting to evade a police vehicle, a Class C felony. He pleaded guilty to both charges and received a seven-day sentence, time he had already served. In 1988, he “received a certificate of discharge, showing that he successfully completed his probation.” It “included a statement that ‘the defendant’s civil rights lost by operation of law upon conviction [are] HEREBY RESTORED.'”

Linton, who was born and raised in California, returned there in 1988 after he was discharged from the Navy. He successfully purchased several firearms after passing background checks. But when he tried to buy a handgun in 2015, the DOJ told him he was disqualified because of the 1987 felony conviction. In response, he asked the Superior Court of Washington to vacate that conviction, which it did in April 2016. The order “set aside” the conviction and released Linton “from all penalties and disabilities resulting from the offense.” But when he tried to buy a rifle in November 2016, he was rejected.

The same thing happened in March 2018, when Linton tried to buy a revolver for home protection. The following month, Donato notes, “DOJ agents came to Linton’s home and seized several firearms from him that he had legally acquired and owned for years, including an ‘antique, family-heirloom shotgun.'”

Although Linton moved to Nevada in 2020, partly because of these experiences, he still owns a cabin in California. He said he felt “unsafe and unprotected” there “without at least the option of having appropriate firearms available or at hand if needed.” He added that he “would like to be able to possess or handle firearms or ammunition for  recreational purposes, such as target shooting,” while visiting friends and relatives in California.

Paul McKinley Stewart’s disqualifying offense dates back even further than Jones’ and Linton’s. In 1976, when he was 18 and living in Arizona, he “stole some tools from an unlocked truck in a commercial yard.” He was found guilty of first-degree burglary, a felony, and served three years of probation, after which he was told that his conviction had been dismissed.

Stewart moved to California in 1988 and tried to buy firearms in 2014 or 2015 (the record is unclear on the exact date). The DOJ “advised him that he was ‘disqualified’ from purchasing or possessing firearms ‘due to the presence of a prior felony conviction.'” Like Linton, Stewart went back to the court of conviction. In August 2016, Donato notes, the Arizona Superior Court “ordered ‘that the civil rights lost at the time of sentencing are now restored,’ ‘set aside [the] judgment of guilt,’ ordered the ‘dismissal of the Information/Indictment,’ and expressly held that the restored rights ‘shall include the right to possess weapons.'” The DOJ nevertheless blocked a gun purchase that Stewart attempted in February 2018, citing the 1976 conviction that officially no longer existed.

Defending these denials in federal court, the state argued that the plaintiffs were not part of “the people” whose “right to keep and bear arms” is guaranteed by the Second Amendment because they were not “law-abiding, responsible citizens.” In California’s view, Donato writes, “a single felony conviction permanently disqualifies an individual from being a ‘law-abiding, responsible citizen’ within the ambit of the Second Amendment.” He sees “two flaws” that “vitiate this contention.”

First, Donato says, “undisputed facts” establish that all three plaintiffs are “fairly described as law-abiding citizens.” Judging from the fact that “California entrusted Jones with the authority of a sworn peace officer, and with the special role of training other officers in the use of force,” that was the state’s view of him until 2018, when he was peremptorily excluded from “the people.” And as with Jones, there is no indication that the other two plaintiffs have been anything other than “law-abiding” since their youthful offenses. “Linton is a veteran of the United States Navy with a clean criminal record for the past 37 years,” Donato notes. “Stewart has had a clean criminal record for the past 48 years.”

Second, Donato says, California failed to identify any “case law supporting its position.” In the landmark Second Amendment case District of Columbia v. Heller, he notes, the Supreme Court “determined that ‘the people,’ as used throughout the Constitution, ‘unambiguously refers to all members of the political community, not an unspecified subset.'” That holding, he says, creates a “strong presumption” that California failed to rebut.

Donato notes that the U.S. Court of Appeals for the 3rd Circuit rejected California’s argument in no uncertain terms last year, when it restored the Second Amendment rights of Bryan Range, a Pennsylvania man who had been convicted of misdemeanor food stamp fraud. “Heller and its progeny lead us to conclude that Bryan Range remains among ‘the people’ despite his 1995 false statement conviction,” the 3rd Circuit said. “The Supreme Court’s references to ‘law-abiding, responsible citizens’ do not mean that every American who gets a traffic ticket is no longer among ‘the people’ protected by the Second Amendment.”

Since Jones, Linton, and Stewart are part of “the people,” California had the burden of showing that disarming them was “consistent with this Nation’s historical tradition of firearm regulation”—the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. “California did not come close to meeting its burden,” Donato writes. It did little more than assert that Americans have Second Amendment rights only if they are “virtuous,” a criterion that is highly contested and in any case would seem to be satisfied by the plaintiffs’ long histories as productive and law-abiding citizens.

“California otherwise presented nothing in the way of historical evidence in support of the conduct challenged here,” Donato says. “It did not identify even one ‘representative analogue’ that could be said to come close to speaking to firearms regulations for individuals in circumstances akin to plaintiffs’. That will not do under Bruen.”

Donato rejected “California’s suggestion that it might have tried harder if the Court had asked.” Under Bruen, “the government bears the burden of proving the element of a national historical tradition,” he writes. “California had every opportunity to present any historical evidence it believed would carry its burden. It chose not to do so.”

Donato was dismayed by the state’s attitude. “The Court is not a helicopter parent,” he writes. “It is manifestly not the Court’s job to poke and prod litigants to live up to their burdens of proof.”

The policy that Jones, Linton, and Stewart challenged seems inconsistent with California’s criminal justice reforms, such as marijuana legalization and the reclassification of many felonies as misdemeanors. It is also inconsistent with the way California treats voting rights, which are automatically restored upon sentence completion. Gun rights in California, by contrast, are easy to lose and hard to recover, even when they have been restored by courts in other states. That disparity seems to reflect the California political establishment’s reflexive hostility to the Second Amendment.

“This case exposes the hypocrisy of California’s treatment of those convicted of non-violent crimes,” says Cody J. Wisniewski, an attorney with the Firearms Policy Coalition, one of several gun rights groups that joined the lawsuit. “While California claims to be tolerant of those that have made mistakes in the past, that tolerance ends when it comes to those individuals [who want] to exercise their right to keep and bear arms. Now, the state has no choice but to recognize the rights of peaceable people.”

SCOTUS heard oral arguments today in the ATF bump stock ban case

SCOTUS Justice Jackson Just Said the Dumbest Thing About Guns and I Can’t Stop Laughing.

Supreme Court Justice Ketanji Brown Jackson must have fallen asleep last night watching a vintage ’80s Chuck Norris movie as part of her preparation to hear oral arguments today in the Garland v. Cargill bumpstock ban lawsuit because her understanding of firearms is even less realistic than your typical Cannon Films production.

While I don’t have the transcript yet for you — arguments are going on as I write this column — the Firearms Policy Coalition has been doing the good work of posting highlights to Twitter/X.

(Don’t miss the update below from the official transcript)

When it was time for the Biden Department of Justice to present its side to the Court, Justice Clarence Thomas asked what happens, according to the FPC, “with the trigger in a bump stocked rifle vs a full-auto rifle.”

Please don’t wet yourself laughing when you read the government’s response.

My 14-year-old self, forever trapped in 1983, would have just one thing to say to a rifle that would let me fire 600 rounds a second: “BITCHIN’!”

Justice Jackson, with images of Chuck Norris killing an entire battalion of Vietnamese soldiers with a single magazine in “Missing in Action 2: The Beginning” still fresh in her mind must have thought, “600 rounds? I raise you 200 rounds to 800 — each and every second.”

ASIDE: Every time I read the words “Justice Jackson” I can’t help but think that’s what Action Jackson went into after he retired from the force.

Anyway, this was Jackson’s contribution to the discussion.

I dunno, maybe she wasn’t paying full attention and misheard the government’s ridiculous claim.

I’m not singling out Justice Jackson for any special mocking here — just the regular amount. Jackson was speaking off the cuff, and everybody makes mistakes doing that. While it’s extra unbecoming for a Justice of the Supreme Court to demonstrate such laughable ignorance about a case she’s supposed to be hearing with her own ears, the government took its time to prepare its case — they wrote stuff down and everything — and still managed to come up with 600 rounds per second.

Some days I wish firearms could do all the things that gun-grabbers claim they can do.

Do I really want an AR-15 that can fire 800 rounds per second? I mean, assuming I could find a magazine with that kind of capacity? No, obviously. The barrel would melt, the bullets would spray all over the place, and I’m having trouble imagining what would happen when 800 brass cartridges go flying out all over the range in a single second.

That one second would also put a serious dent in my .223 stash.

Still… what a glorious second that would be.

UPDATE: SCOTUS did a great job of getting the transcript posted, so I found the relevant bits for you.

MR. FLETCHER: [speaking to Chief Justice Roberts] What you are doing is just pushing forward. Now, if you look at the videos that we cite in Footnote 1 of our reply brief, some of them are in slow motion, and they show that when the shooter is doing this, the hand is moving back and forth very fast, 600 times a second. That’s not happening because the shooter is able to move their hand back and forth 600 — or, I’m sorry, 600 times a minute.

So the Firearms Policy Coalition got the first part right but then missed the correction. Easy to do while essentially liveblogging — I should know. Still, 600 rounds per minute is only slightly less impossible than 600 rounds per second. Even if under some extreme circumstances a bumpstock-enhanced cyborg were able to fire that quickly, a semi-automatic rifle wouldn’t stand up to the strain — and where would the rounds come from?

And here’s Justice Jackson: “And when, you know, ‘function’ is defined, it’s really not about the operation of the thing. It’s about what it can achieve, what it’s being used for. So I see Congress as putting function in this. The function of this trigger is to cause this kind of damage, 800 rounds a second or whatever.”

I think “or whatever” pretty well sums up Jackson’s interest in learning about firearms.

 

NSSF Wins Preliminary Injunction Against California Law Allowing Frivolous Lawsuits Against Gun Industry

A U.S. District Judge has granted an injunction prohibiting the enforcement of California’s law that exposes firearms manufacturers and retailers to lawsuits in the state for lawful commerce in firearms that takes place entirely outside the state of California when those legally made and sold products are misused by criminals and others.

The ruling by Judge Schopler in the U.S. District Court of the Southern District of California enjoined the enforcement of California AB 1594, the so-called “Firearm Industry Responsibility Act.” NSSF sued to challenge the law in June 2023 and moved for an injunction. In granting the injunction, Judge Schopler found the law is likely unconstitutional because it violates the Commerce Clause.

“We are thankful the court enjoined the state from suing members of the firearm industry under this unconstitutional law that attempts to use the real threat of liability on commerce beyond California’s borders and impose its policy choices on its sister states,” stated NSSF Senior Vice President and General Counsel Lawrence G. Keane.

Among other provisions, California AB 1594 bans the manufacture, sale and marketing of firearms the state deems “abnormally dangerous.” It allows civil lawsuits against a firearm industry member to be filed by the Attorney General, any municipality and any person who claims to have suffered harm from the misuse of a legal, lawfully sold firearm by a remote third party. The law unconstitutionally invades the sovereignty of sister states by directly regulating lawful commerce occurring entirely outside the state of California in violation of the Commerce Clause and the United States’ system of federalism. The law also violates the Protection of Lawful Commerce in Arms Act (PLCAA) enacted by Congress in 2005 to stop just these sorts of frivolous lawsuits against members of the industry.

“We are reviewing the balance of the court’s decision and whether we will file an amended complaint to provide the court more details on how California’s unconstitutional law and its threat of crushing liability is causing real and ongoing harm to members of our industry,” Keane said.

NSSF also claims in its lawsuit that the law also infringes on the Second Amendment and chills First Amendment rights by restricting protected free-speech advertising of Constitutionally-protected products that are lawfully made and sold – even when that advertising takes place outside of California’s borders.

Judge Declares Fargo’s Ban on Home-Based Gun Businesses Goes Too Far

For several years the city of Fargo, North Dakota has prohibited FFL’s from operating out of their homes, but the state legislature took aim at that restriction last year and passed a law that bans localities from establishing zoning ordinances that specifically include firearms and ammunition based businesses.

The city almost immediately filed suit challenging the law, but this week state District Judge Cherie Clark ruled against Fargo; tossing out the city’s lawsuit and rejecting its argument that the zoning preemption law violates the state constitution and the home rule powers granted to local authorities.

“While the Court agrees that (the North Dakota Constitution) intends for ‘maximum local self-government,’ the law is not settled that this language alone provides home rule cities the right to legislate on topics the state legislature has limited,” the judge wrote.

But she also expressed concerns about the Legislature’s actions: “If the legislature continues to pare home rule powers, home rule cities lack the discretion to address important issues impacting their respective and unique communities.”

What, exactly, is so unique about Fargo that federal firearms licensees shouldn’t be allowed to operate a home-based business? The city has never offered a good explanation, instead blithely asserting that it “does not want its residents to utilize their homes in residential areas as gun stores.”

Well, tough. There’s no prohibition in either state or federal law that precludes home-based FFLs, and it doesn’t appear that any other locality in the state has tried to erect any similar barriers, so why should FFLs in Fargo be punished or forced to spend money on a brick-and-mortar location, especially if they’re selling guns on a part-time basis?

This is actually the second law that the state legislature has adopted to deal with Fargo’s restrictions, but the city was successful in defending its ordinance in 2021, which led lawmakers to try again last year.

Bill sponsor and Republican state Rep. Ben Koppelman told a state Senate panel in April that the issue came to greater attention in 2016 when, because of the ordinance, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives refused to renew the federal firearms licenses of Fargo dealers who sold out of their homes.

“What is at issue is whether we want local governments creating gun control or whether we want gun regulations to remain a state-controlled issue,” Koppelman said in April. “Without this bill and in light of the (2021) court opinion, I think local political subdivisions could propose all sorts of local gun control, and based on the anti-gun track record of the City of Fargo Commission, I think we could expect it.”

Both sides in the lawsuit agree that the issue at hand goes beyond the zoning laws in question, and instead touches on the ability of home-rule localities to pass their own laws in any number of areas. But even though the North Dakota Constitution compelled the state legislature to come up with a home-rule statute and lawmakers granted home-rule communities the authority to adopt ordinances, resolutions, and regulations that provide for public health, safety, morals, and welfare, it’s still within the state’s authority to declare certain subjects off-limits to local control.

Three years ago the legislature adopted a preemption law stating:

1. A political subdivision, including home rule cities or counties, may not enact a zoning ordinance or any other ordinance relating to the purchase, sale, ownership, possession,transfer of ownership, registration, or licensure of firearms and ammunition which is more restrictive than state law. All such existing ordinances are void.

A state judge ruled that Fargo’s home-based FFL zoning prohibition could still be enforced because the state had no regulations concerning commercial firearms sales. While most of us would conclude that any zoning ordinance would be more restrictive than a state law that doesn’t exist, District Judge Stephannie Nicole Stiel sided with Fargo’s argument that the ordinance in question wasn’t more restrictive than state law because state statutes were silent on commercial gun sales sales.

That’s not the case these days, thanks to the legislature’s response last year, and Judge Clark made the right call, even though her editorializing on the legislature’s actions was completely unnecessary. Fargo officials could still appeal Clark’s decision, but the odds of success are pretty long, and it would be a waste of time and taxpayer money to try to keep this needless ordinance in place instead of accepting home-based FFLs and the tax revenue they generate.

The Honorable Judge Benitez strikes again.

The state court mistakenly did not regard the pistol or the billy to be the sorts of arms protected by the Second Amendment. Instead, only weapons of war were covered by the Constitution, according to Workman. As to other kinds of arms, Workman incorrectly observed,

in regard to the kind of arms referred to in the [Second] amendment, it must be held to refer to the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets,—arms to be used in defending the State and civil liberty,—and not to pistols, bowie-knife, brass knuckles, billies, and such other weapons . . . .

In short, Workman held that weapons of war are protected by the Second Amendment but found weapons like the billy are not weapons of war, and therefore are not protected.

Workman was wrong in concluding the Second Amendment does not cover arms like the pistol and the billy.…

The Second Amendment protects a citizen’s right to defend one’s self with dangerous and lethal firearms. But not everybody wants to carry a firearm for self defense. Some prefer less-lethal weapons. A billy is a less-lethal weapon that may be used for self-defense.

It is a simple weapon that most anybody between the ages of eight and eighty can fashion from a wooden stick, or a clothes pole, or a dowel rod. One can easily imagine countless citizens carrying these weapons on daily walks and hikes to defend themselves against attacks by humans or animals. To give full life to the core right of self-defense, every law-abiding responsible individual citizen has a constitutionally protected right to keep and bear arms like the billy for lawful purposes.

gov.uscourts.casd.644922.86.0

NRA Loses Corruption Case, LaPierre Liable for Millions

Manhattan, New York — The National Rifle Association failed to safeguard its donor’s funds while Wayne LaPierre diverted millions toward lavish personal expenses.

That’s the finding a six-person jury handed down on Friday after a week of deliberations. They sided with New York Attorney General Letitia James (D.) against the NRA and its leadership. In addition to the group and its former CEO Lapierre, the jury also ruled against former Treasurer Woody Phillips and General Counsel John Frazer.

The six-member jury in the civil case found LaPierre did $5.4 million worth of harm to the NRA by using its charitable funds to pay for things like private jet travel. They determined he’d already paid back about a million dollars of that harm, but also that there was enough evidence to bar him from being the group’s CEO in the future.

They found Phillips had violated his duty to work in good faith for the NRA, and that his briefly-lived post-employment contract was an unauthorized related-party transaction. However, they found it didn’t do any monetary harm to the organization. Similarly, the jurors found Frazer had violated his duty to the group and authorized “materially false” statements the NRA made on a government disclosure about related party transactions, but they also found his actions didn’t cause the group monetary harm and there wasn’t cause to remove him.

The jury also found a series of payments made to board members or people related to NRA employees were not properly approved ahead of time, but all but two–hair and makeup for Wayne LaPierre’s wife and speaking fees for former NRA president David Keene–were properly approved after the fact. However, they also found the NRA did not have a proper whistle-blower policy for years and did nothing to prevent retaliation against eight whistle-blowers identified in the case.

Judge Joel Cohen is now tasked with deciding what remedies are appropriate for the damages the jury has identified. What he decides will determine the future of the nation’s largest gun-rights group. In addition to barring LaPierre from working with the NRA or other non-profits, he could force the former CEO to pay the organization back for expenses the jury found were unlawful. But he could also appoint a monitor to oversee the NRA’s operations, which might completely transform the group’s leadership and internal operations.

A significant overhaul of the most prominent gun group in America will have a substantial impact on gun politics throughout the nation, especially since it’s far from clear the group can recover.

Of course, the corruption allegations and legal ordeal have already made a tremendous mark on the NRA. Since news of the illicit spending broke in 2018, the group has experienced an unprecedented exodus of members. Millions of people have abandoned the organization, with nobody quite sure how many remain. That’s led directly to a funding shortfall that has forced the group to slash spending on key programs, such as gun safety training and political campaigns, while pouring an unprecedented amount into controversial legal bills.

The group has continued to see declines in fundraising and will likely only be a shadow of its former self in the upcoming 2024 presidential election.

LaPierre, who resigned in the middle of the trial, and the NRA have argued that downfall was AG James’s goal from the beginning. They noted she had promised to investigate the group during her campaign, which she said wasn’t a charity but a “terrorist organization.” Her initial complaint sought the total shutdown of the NRA.

“The fact is, Letitia James set out to destroy the NRA, and the best way to do that was to destroy Wayne LaPierre,” P. Kent Correll, who represents the former CEO, said in closing arguments.

However, Judge Cohen and an appellate court rejected the argument that the case was solely a political attack when the NRA sought to have it dismissed. However, Judge Cohen also removed dissolution as a potential remedy because he argued it would be detrimental to NRA members–the people James is tasked with protecting in the suit.

“In short, the Complaint does not allege the type of public harm that is the legal linchpin for imposing the ‘corporate death penalty,’” he wrote in his opinion. “Moreover, dissolving the NRA could impinge, at least indirectly, on the free speech and assembly rights of its millions of members.”

But he let the case proceed because the allegations “tell a grim story of greed, self-dealing, and lax financial oversight at the highest levels of the National Rifle Association.”

In addition to the argument about James’s political motivations, the NRA focused much of its defense on the claim it had already instituted enough reforms to self-correct. It argued that many of the illicit expenses at issue in the case did happen, but the NRA had since fired some of those involved and established internal controls to address the problems. It also attacked as unreliable former insiders, including board members and executives, who testified against those claims in court.

“The NRA Board of Directors, which is the seat of the NRA’s corporate governance, acted in good faith and with ordinary care,” the NRA’s lawyer argued.

“Ladies and gentlemen, when you’re caught in the act, saying you’re sorry now, saying that you’ll do better, doesn’t mean you didn’t take the cookie,” the AG’s lawyer responded.

As has been the case with some current NRA insiders, the group’s current leadership failed to convince the jury they resolved the issues.

Neither the NRA nor the AG responded to requests for comment.

Judge Cohen will now schedule the next trial phase, where he will be responsible for determining the final settlement of the case.

Jury finds NRA and ex-CEO Wayne LaPierre liable in civil corruption trial

The jurors determined there was cause to remove LaPierre and that he owes the organization nearly $4 million.

Former National Rifle Association CEO Wayne LaPierre has been ordered to pay nearly $4 million to the nonprofit after a jury on Friday found him liable in a civil corruption trial brought by New York Attorney General Letitia James.

The defendants, which included the NRA itself, the organization’s general counsel and corporate secretary John Frazer and former treasurer and chief financial officer Wilson “Woody” Phillips, were accused of using the nonprofit as a “personal piggy bank” in a civil lawsuit filed by James in 2020. James alleged that they violated nonprofit laws and misused tens of millions in NRA funds for personal gain.

After a week of deliberation, the jury agreed that the attorney general had proved her case, finding each of the defendants liable for violating their statutory obligations. The jury determined that LaPierre cost the organization more than $5 million but had already repaid $1.4 million. Phillips was held to have harmed the group to the tune of $2 million; the jury did not put a dollar amount on Frazer’s violation.

In their argument, attorneys for the NRA had sought to distance the organization from LaPierre, who announced his resignation as CEO just days before the trial began in January, after more than 30 years at the helm. Sarah Rogers, representing the organization, said in opening arguments that LaPierre, though a “valuable and visionary leader, was “not always a meticulous corporate executive” and questioned why the NRA was even a defendant in the case.

LaPierre’s attorneys, however, maintained that he used private jets not for personal gain, but to raise funds for the organization and for gun rights causes — even as LaPierre himself testified that he improperly expensed private flights and failed to disclose accepting luxury vacations from vendors.

“He was a visionary,” his lawyer P. Kent Correll said in closing arguments on Thursday. “He was a genius.”

NY vs. NRA: Statement by Former BOD Timothy Knight

The verdict in the NY vs. NRA case is due shortly.

Although I believe the case had some political motivations behind it based on the words of the New York Attorney General when she was running for office, I don’t think NRA members should dismiss the grave concerns revealed in what is now several court cases.

I, along with a few other directors, expressed concerns over the misappropriation of funds both internally and then later publicly in 2019.

We recognized who our boss actually was: our fellow members who were faithfully paying their dues.

We did not believe the NRA Board and management were holding to the mission of the Association, nor were they being transparent about expenses. Every NRA Director has a duty to the members, the law, and the NRA’s mission statement. Several of us were dismissed from our committees and accused of disloyalty towards the NRA for raising our financial concerns. Most Board members were too scared to stand up to Wayne and his cronies, especially Marion Hammer. Other Board members were part of the management cabal themselves and had no intention of changing a thing. So, the Board circled their wagons and remained silent. They were unwilling or unable to speak up or divided on where their loyalties lay.

The current NRA Board has failed in its duty to the NRA members, and I think that every single Board member who hasn’t openly spoken up about reform and responsibility should resign immediately.

Our Association deserves bold, honorable, and honest Board members focused on their legal responsibilities and on the members who elected them. No more should they focus on those who can dole out favors, vacations, car rides, consulting fees, and other grafts. We need to stop electing the silent, the complicit, or those who hope to be “trusted remainders” when this all blows over. Board members who are 2nd Amendment heroes, politicians, or captains of industry might once have been effective for our association. They are no longer effective and need to resign as well.

To fix our association, we need a much smaller board with term limits as well as a significant revision of the structure the board operates under. Strict disclosure rules for Board members and management need to be enforced and shared with NRA members during the annual meeting. This information should be disclosed to everyone during the main members’ business meeting, which is open to the public.

I trust the members who make up the association and in the mission statement that should always keep it focused. We need new leadership and a new board now. If both do not change, the slow degradation of our once great association will do more damage to our civil rights, hunting culture, gun safety education, and competitions that we can ill afford. My fellow members, if the court does not grant you the remedy you think is deserved, please stop supporting the do nothing, ne’er do wells, and the faded heroes.

I look forward to the day when the NRA, once again, through hard work and results, regains the trust of millions of law-abiding gun owners. We are stronger when we stand together as hunters, competitors, enthusiasts, advocates, and educators.

Timothy Knight
NRA Board of Directors 2015-2019

FPC Notches Win In Georgia Young Adult Carry Ban Challenge

The Firearms Policy Coalition recently won a small victory in the ongoing war against Georgia’s ban on concealed carry for young adults.

On Monday, a three-judge panel of the Eleventh Circuit Court of Appeals reversed a lower court ruling that dismissed a lawsuit challenging Georgia’s law banning 18- to 20-year-old citizens from carrying a firearm for self-defense.

In the case Baughcum v. Jackson, the court countered findings by the district court that ruled the individuals represented in the lawsuit didn’t have standing.

“We are confident that the case is not moot—at least as to one of the individual plaintiffs and the FPC,” the ruling stated. “Although Meyer and Long have turned twenty-one while this case has been pending, Baughcum is still twenty. So, his claim (and thus the FPC’s claim based on his membership in the organization) is not moot. Moreover, the FPC is a large membership organization and says it has other eighteen-to twenty-one-year-old members in Georgia, such that it continues to have associational standing to litigate this suit.”

FPC filed the suit on behalf of the three young adults. Since the case was filed, two of them have turned 21, making them eligible to apply for a concealed carry permit under Georgia law.

Cody J. Wisniewski, FPC Action Foundation vice president and general counsel, and counsel for FPC, said his organization was happy to receive the good news from the circuit court.

“We’re pleased that the Eleventh Circuit has agreed with FPC and the individual Plaintiffs that our challenge to Georgia’s unconstitutional age restriction can proceed,” Wisniewski said after the ruling. “The defendants have sought to avoid the actual constitutional issues underlying this case by attempting to distract the Court with theories about why we couldn’t bring this challenge. Now that the Eleventh Circuit has settled that question, we can proceed with what really matters—vindicating the rights of 18- to 20-year-old adults in Georgia.”

When it comes to Constitutionally protected rights, about the only one that is infringed upon for 18- to 20-year-old Americans is the right to keep and bear arms. With the 2022 Supreme Court Bruen decision upholding the right of citizens to carry firearms outside the home, states depriving adults aged 18 to 20 of this right are almost certainly running afoul of the Second Amendment.

This battle for young Americans’ right to keep and bear arms has a lengthy history, yet not much real progress has been made. In fact, in the courtroom the matter has repeatedly taken one step forward, then two steps back—usually after the process is dragged out long enough that the plaintiffs turn 21 and their rights are no longer infringed.

UNCONSTITUTIONAL
WHY THIS WORD IS SHOWING UP MORE IN COURT RULINGS

Just before I sat down to write this week’s installment, a federal district judge in central Florida handed down a 42-page ruling, posted online by Reuters, which declared the long-running ban on carrying firearms inside post offices is a Second Amendment violation.

U.S. District Judge Kathryn Kimball Mizelle, a Donald Trump appointee (see, elections do matter!) put it bluntly, which seems to be a hallmark among conservative judges now unraveling a lot of truly egregious legislation and regulations adopted over the years that have restricted your rights. Here’s part of what she said:

“First, nothing in Supreme Court dicta establishes that the United States may ban firearms in all government buildings. Second, the scope of the Second Amendment right is a legal question, not a factual one, and I need not hold an evidentiary hearing to resolve it. Instead, the government bears the burden to identify historical evidence supporting its challenged regulation. Finally, I explain why the United States errs in arguing that its proprietorship of federal land and buildings excludes vast swathes of the country from the protection of the Second Amendment.”

Elsewhere, Judge Mizelle observed, “Possessing a firearm in a federal facility is an activity that falls within the plain text of the Second Amendment … Thus, the United States must show that a ban on firearms in ordinary post offices is consistent with our nation’s founding-era tradition of firearms regulation.”

Of course, the ruling will be appealed, probably before you read this. But it is now on the record that one more federal restriction on the right to bear arms has been ruled unconstitutional by yet another judge.

California’s long-standing ban on so-called “assault rifles” and “high-capacity

magazines” has been ruled unconstitutional by U.S. District Judge Roger T. Benitez.

This isn’t new, but it is interesting and, in some ways, entertaining. Out in San Diego, California, U.S. District Judge Roger T. Benitez has made something of a habit declaring Golden State gun control laws unconstitutional. He’s done it with the state’s ban on so-called “large-capacity magazines” and so-called “assault weapons.”

Judge Benitez has gotten so far under Democrat Gov. Gavin Newsom’s thin skin that the governor has attacked him personally. When Benitez struck down the magazine ban, Newsom posted a rant on his official website calling the judge an “idealogue.”

Judge Benitez last fall ruled the state’s decades-old “assault weapons” ban is unconstitutional. California lawmakers were an unhappy lot.

When Judge Cormac Carney more recently struck down the California “sensitive places” gun ban, calling it “repugnant” to the Second Amendment, Newsom issued a statement to the California media.

“Defying common sense, this ruling outrageously calls California’s data-backed gun safety efforts ‘repugnant,’” Newsom told the Los Angeles Times. “What is repugnant is this ruling, which greenlights the proliferation of guns in our hospitals, libraries, and children’s playgrounds — spaces which should be safe for all.”

Judge Carney’s decision was a big win for the Second Amendment Foundation (SAF) and California Rifle & Pistol Association, and their partners in the federal lawsuit challenging the “sensitive places” law.

Judges Benitez and Carney are both George W. Bush appointees.

West Virginia Ruling

Back in December, U.S. District Chief Judge Thomas S. Kleeh with the Northern District of West Virginia declared a federal law prohibiting handgun sales to 18-20-year-olds is “facially unconstitutional.” He granted a summary judgment in another case brought by SAF, which is celebrating its 50th anniversary this year.

Another District Court judge, in West Virginia, has ruled that the federal

law prohibiting handgun sales to young adults is “facially unconstitutional.”

In his 40-page decision, Judge Kleeh wrote, “(B)ecause Plaintiffs’ conduct – the purchase of handguns – ‘fall[s] [within] the Second Amendment’s ‘unqualified command’ and the challenged statutes and regulations are not ‘consistent with the Nation’s historic tradition of firearm regulation,’ the Court FINDS 18 U.S.C. §§ 922(b)(1) and (c)(1) facially unconstitutional and as applied to Plaintiffs.”

Judge Kleeh is a Donald Trump appointee.

So, What’s Going On?

Much of this drama can be attributed to language in the Supreme Court’s June 2022 ruling in New York State Rifle & Pistol Association v. Bruen. In that decision, authored for the majority by Associate Justice Clarence Thomas, the high court set down new guidelines for deciding Second Amendment cases.

 

Supreme Court Associate Justice Clarence Thomas, official portrait, public domain.

This excerpt from the Thomas opinion probably sums it up: “In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest.

Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

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The US Court of Appeals for the Eleventh Circuit has reversed a lower court decision dismissing a Second Amendment challenge to Georgia’s law banning public carry by 18-20 year olds.

202213444

I can see a ‘Circuit Split’ sometime in the near future…..

Wyoming’s Appeals Court Upholds Law Barring Drug Users From Having Guns
The 10th Circuit Court of Appeals, which includes Wyoming, on Friday upheld a federal law barring drug users from possessing guns. Hunter Biden is charged under that same law in a federal court in Delaware.

The 10th Circuit Court of Appeals, which includes Wyoming, on Friday upheld a federal law barring drug users from possessing guns.

The appeals court didn’t say that the statute, 18 USC 922(g)3, is altogether constitutional, just that a lower court judge was wrong to proclaim it unconstitutional in this case.

This decision comes after the Fifth Circuit Court of Appeals chipped away at the law in a separate case by saying it unconstitutionally denied a marijuana user’s Second Amendment rights. That case is now before the U.S. Supreme Court.

Hunter Biden, President Joe Biden’s son, is charged with that same law in a Delaware federal court. His case is ongoing.

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Judge blocks Omaha’s ban on guns in public places while lawsuit challenging it moves forward

OMAHA, Neb. — Nebraska’s largest city won’t be able to enforce its ban on guns on all public property, including parks and sidewalks, while a lawsuit challenging that restriction moves forward.
Douglas County District Judge LeAnne Srb issued a preliminary injunction Friday blocking that ban, but she refused to put Omaha’s restrictions on “ghost guns” and bump stocks on hold.

The Liberty Justice Center filed the lawsuit on behalf of the Nebraska Firearms Owners Association arguing that the city restrictions violate a new state law passed last year that allows people to carry concealed guns across the state without a permit and without the need to complete a gun safety course. A similar lawsuit challenging gun restrictions in Lincoln remains pending.

“We are thrilled with the court’s decision to grant this injunction and uphold Nebraskans’ rights against executive overreach,” said Jacob Huebert, president of the Liberty Justice Center. “Under Nebraska law, local governments do not have the authority to regulate firearms — the right to bear arms is protected across the state.”

Just before gun owners filed these lawsuits, Nebraska Attorney General Michael Hilgers published an opinion stating that state law preempts executive orders from the mayors restricting guns.

Omaha City Attorney Matt Kuhse said “while it is unfortunate that the court enjoined the city’s ability to protect our public spaces, we will abide by this order.” But the city will continue to fight the lawsuit.