Category: Courts

Oklahoma Ban on Sex Changes for Minors Upheld by Federal District Court
Judge has ruled that the state law banning procedures or therapies for children under 18 doesn’t violate parents’ constitutional rights

U.S. District Court Judge John F. Heil has ruled that an Oklahoma state law banning sex-change procedures on children was constitutional and therefore could be enforced.

The ruling on Oct. 5, 2023, came as a result of a motion for injunctive relief to restrain the state from implementing the law.

Five young people identifying as transgender and in some degree of transition, their parents or legal guardians, and a health care provider are the plaintiffs in the case.

The defendant is Oklahoma Attorney General Gentner Drummond, a Republican.

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Judge Bars Trump From Campaigning Against His Top Political Opponent

A U.S. District Court judge has barred former President Donald Trump from campaigning against his top political opponent: the federal government.

On Monday, Judge Tanya Chutkan issued a gag order to prohibit the Republican frontrunner from speaking out on the case just more than a year out from the next election. The order bars Trump from publicly defending himself against attacks from potential witnesses, court personnel, or federal prosecutors in the case, including Special Counsel Jack Smith.

“This is not about whether I like the language Mr. Trump uses,” Judge Chutkan reportedly said. “This is about language that presents a danger to the administration of justice.”

The order itself, however, presents a danger to American democracy. Democrats are already trying to prevent Americans from being given the chance to vote on the former president. Now, far-left activists are wielding the judiciary to prevent Trump from leading an effective campaign. With a more than 45-point lead in the Republican primary, Trump isn’t running against the other candidates attempting to challenge him. He’s running against the Department of Justice, and the Department of Justice under President Joe Biden is running against him with 44 federal indictments to thwart the GOP frontrunner’s triumphant return.

The special counsel prosecuting Trump over protestors’ 2021 attack on the Capitol requested the gag order in September, alleging the former president’s statements over the case sought to “undermine the integrity of these proceedings and prejudice the jury pool.” Yet the proceedings were undermined from the start with the selection of Judge Chutkan to preside over the politically charged case in the nation’s capital. Just more than a week after Smith requested the gag order, Chutkan refused a motion from Trump’s legal team that she recuse herself from the trial.

There has never been any doubt on how Chutkan might rule on consequential decisions since the Jan. 6 indictments were first handed down on Aug. 1. An activist judge with an obvious animus against the former president and his supporters, federal prosecutors could not have been given a more friendly judge in a district more friendly to the government’s case. Beyond the fact residents in Washington D.C. voted for Biden over Trump in 2020 by a whopping 92 to 5 percent, an Emerson College survey found a majority, 64 percent, had already made up their minds to vote in favor of convicting Trump if they were selected for his jury. Only 8 percent said they would find Trump innocent, and another 28 percent were unsure. Chutkan herself is likely among those who would vote in favor of convicting based on recent rulings and statements.

According to the Associated Press in August, the Obama-appointed judge built a reputation as “a tough punisher of Capitol rioters.” Chutkan presided over more than three dozen cases of those charged with crimes related to the Capitol riot.

“Other judges typically have handed down sentences that are more lenient than those requested by prosecutors,” reported the AP. “Chutkan, however, has matched or exceeded prosecutors’ recommendations in 19 of her 38 sentences. In four of those cases, prosecutors weren’t seeking any jail time at all.”

Chutkan has also condemned comparisons of the Jan. 6 Capitol riot to the deadly riots for so-called “social justice” of 2020. The fiery riots, she claimed in one hearing, were actually “the actions of people protesting, mostly peacefully, for civil rights.” The Capitol riot, on the other hand, was an attempt to “violently overthrow the government.” Never mind the $2 billion worth of damage, making the outbreak of leftist violence one of the most destructive in American history, and “protestors” targeting of federal buildings. The carnage from the summer of rage cost 66 times more than the estimated damage done to the Capitol in the hours-long riot.

Trump’s Republican rivals attacked him for shelling out a disproportionate amount of campaign funds for his own legal defense. Those attacks, however, fail to grapple with the reality that for Trump, his serious opponents aren’t the other Republicans in the race. His primary contest is one with the federal government trying to silence him.

New Jersey faces challenge to ‘assault’ weapons ban

(The Center Square) — New Jersey is facing a challenge to its ‘assault’ weapons ban, with Second Amendment groups asking a federal judge to strike down the law.

In a new filing in U.S. District Court, the plaintiffs in three related lawsuits challenging New Jersey’s ban and other firearm restrictions argue that the gun control measures are unconstitutional and request a summary motion in favor of their claims.

The lawsuits were filed by the Association of New Jersey Rifle, Pistol Clubs and Firearms Policy Coalition and others on behalf of gun owners who argue the state’s ‘assault’ weapons ban violates the Second Amendment and a 2022 U.S. Supreme Court decision “upholding the right of honest citizens to carry firearms for personal protection.”

“The common thread tying them together is the righteous claim that, at its core, New Jersey’s regulatory scheme blatantly violates the fundamental rights of the state’s law-abiding citizens to keep and bear arms in common use for self-defense and other lawful purposes,” plaintiffs wrote in the motion.

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Ninth Circuit Rules California Law Banning Firearms Advertisements Likely Violates the First Amendment in NRA-Backed Case.

NRA scored a legal victory in the Ninth Circuit Court of Appeals against an overbroad California law that bans firearms advertisements that may be attractive to minors.

In June of 2022, the California Assembly passed and Governor Newsom signed AB-2571 into law. NRA filed suit shortly thereafter. The bill as originally drafted was so overbroad that it effectively banned advertising youth-hunter-education programs. The NRA’s lawsuit pointed that out, and the state promptly amended the statute so that it only bans advertisements of firearms products “in a manner that … reasonably appears to be attractive to minors.” But that didn’t fix the law’s overbreadth problem. It still banned advertisements featuring a parent hunting or shooting with their minor child.

The Ninth Circuit rightly recognized that the law was overbroad and banned truthful advertisements related directly to the Second Amendment—which the First Amendment forbids. The court remanded the case back to the trial court for further proceedings. The state, however, is refusing to accept the obvious. It has asked for an extension of time to seek a rehearing en banc, before 11 judges on the Ninth Circuit.

We look forward to continuing the fight in this case for our members.

The Case is captioned Safari Club International v. Bonta. United States Sportsmen’s Alliance Foundation and Congressional Sportsmen’s Foundation are also parties to the case.

A closer look at more amici briefs in the next SCOTUS 2A case

United States v. Rahimi is a case dealing with a prohibited person being in possession of arms. Just the other day I covered one of the many amici briefs that have been filed in support of Rahimi, one that the Second Amendment Foundation wrote. There’s a lot of attention being paid to this particular case, for good reason. It’s quite possible that the U.S. Attorney General is going to use this case as an opportunity to twist and contort NYSRPA v. Bruen.  To date, there have been 21 and counting briefs filed in support of Rahimi and about 36 in support of the U.S. government.

The Rahimi question is whether or not a blanket prohibition on those subject to a civil domestic violence restraining order would be constitutional. Rahimi, during the course of some less-than-savory acts, got charged with being in possession of a firearm when under such an order. The case at hand is not about whether or not violent people or those who beat their domestic partners should or should not have firearms, but rather about if a civil – not criminal – process should lead to the loss of a constitutional right.

Discussed previously, SAF’s brief goes straight to “the only analogue that was around at the time of the founding” concerning blanket prohibitions had to do with British loyalists in a post revolution time.

A brief that was filed on October 4, 2023 by multiple “law enforcement groups” and “firearms rights groups” latches onto an argument that I’ve been making since day one – this is a due process case.

That brief represents the following groups: Bridgeville Rifle & Pistol Club, Connecticut Citizens Defense League, Delaware State Sportsmen’s Association, Gun Owners Action League (Massachusetts), Law Enforcement Legal Defense Fund, Maryland State Rifle & Pistol Association, Vermont Federation of Sportsmen’s Clubs, Vermont State Rifle & Pistol Association, Virginia Shooting Sports Association, Western States Sheriffs’ Association, and Women for Gun Rights (Formerly known as the DC Project).

The 37 page text makes the argument that we need not look any further than the facially unconstitutional due process violations that are involved.

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Old gun controls that were constitutionally repealed are not precedents for modern gun control

This week amicus briefs were filed in United States v. Rahimi, the only Second Amendment merits case currently before the Supreme Court. The docket page for the case is here. I will be blogging later about various briefs in the case. This post describes the amicus brief that I filed, available here.

The case involves the constitutionality of 18 U.S.C. sect. 922(g)(8), which imposes a federal prison sentence of up to 15 for persons who possess a firearm while subject to certain state-issued restraining orders. The amici are several law professors, including the VC’s Randy Barnett, the Second Amendment Law Center, and the Independence Institute, where I am Research Director. My co-counsel on the brief was Konstandinos T. Moros, of the Michel & Associates law firm, in Long Beach, California.

The bottom line of the brief is that subsection 922(g)(8(C)(i) does not infringe the Second Amendment; it restricts the arms rights of individuals who have been found by a judge to be a “credible threat” to others. In contrast, subsection 922(g)(8(C)(ii) does infringe the Second Amendment, because it does not require any such judicial finding.

The brief addresses the question of “who” may be restricted in the exercise of Second Amendment rights; the brief takes no position on questions of “how”–such as what due process is required, or whether the severity of 922(g)(8) ban is comparable to historic laws restricting the exercise of arms rights.

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Judge Issues Injunction Blocking MD’s Unconstitutional Carry Restrictions

After the United States Supreme Court ruled that the Second Amendment protects the right of law abiding citizens to carry a firearm in public, a Maryland court found it was “self-evident” that Maryland’s carry permitting regime was also unconstitutional. Maryland then followed New York and New Jersey in overhauling their carry laws by effectively declaring the entire state to be a so-called “sensitive place” through the passage of S.B. 1.

And, just like in New York and New Jersey, NRA filed suit as the ink from Governor Moore’s signature was drying on bill.

On September 29th, in a 40-page opinion, a federal judge enjoined three portions of S.B. 1, from taking effect.

The biggest win was stopping the “private building consent rule,” which declares all private property that is open to the public to be a prohibited place—unless the property owner expressly allows individuals to enter the premises with a firearm.

These private building consent restrictions were cooked up by anti-Second Amendment advocates to effectively nullify the Bruen decision. They are the heart of the states’ response to Bruen. And courts are having nothing to do with them. Today’s ruling was the fourth on enjoining these private consent rules from taking effect.

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Assault victim sues Loudoun County Public Schools for $30 million.

The daughter of Scott Smith who was 15 at the time she was sexually assaulted by a boy in the girl’s bathroom has filed a lawsuit against the school system for $30 million.

A teenage girl who was sexually assaulted in a Virginia high school bathroom has sued Loudoun County Public Schools, alleging that school officials failed to heed warning signs about her attacker and responded to her May 2021 assault by trying to cover it up.

The teenager, who filed the lawsuit under the pseudonym “Jane Doe” along with her parents, was 15 years old when a younger, male student in a skirt assaulted her in a girls’ bathroom at Stone Bridge High School in Ashburn on May 28, 2021.

The incident garnered national attention. Conservatives protested a policy in Loudoun County schools — put in place after the assault — that allowed transgender students to use bathrooms matching their gender identity. Meanwhile, outraged parents in Loudoun County questioned why the perpetrator was moved to a different school, where he assaulted a second female student months later.

The story is a lot more complicated than this simple summary can convey. The girl had previously had some kind of sexual encounter with the boy in question in a school bathroom. This rendezvous was also planned but the incident became aggressive and the girl wanted it to stop.

Also, while it’s true the trans bathroom policy wasn’t in place at the time, it’s also true that the day of the incident the first report back to the school board was that the assault might be connected to the forthcoming bathroom policy. In other words, the very things “conservatives” protested was also the first thing school officials were worried about.

The boy’s mother has since claimed he was not trans or non-binary but no one denies he was wearing a skirt to school that day. Former school superintendent Scott Ziegler told the NY Times in August that at a meeting on the day of the assault the school’s principal told him, “He runs with the drama crowd, and you know how the drama crowd can be. They’re attention-seeking. And he’s been experimenting with different looks.” So, yes, he wore skirts but “he has never come out to the school as either nonbinary or transgender.” More on the lawsuit.

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2A says ‘right to keep and bear arms’
That’s anything to do with weaponry

Analysis: Pistol Brace Ruling Implies Second Amendment Protects AR-15s, Ammo Mags, and Silencers

“[T]he Court finds that braced pistols regulated under the Final Rule are commonly used by law-abiding citizens for lawful purposes.”

That may be the most influential finding in Judge Reed O’Connor’s decision enjoining the ATF’s pistol brace rule. It strikes at a key part of the fight over gun and accessory bans across the country. And how Judge O’Connor reached his conclusion provides new insight into the threshold other courts may employ to determine whether the Second Amendment protects a banned item.

Working off of Supreme Court precedent in 2008’s District of Columbia v. Heller, 2010’s McDonald v. Chicago, and 2022’s New York State Rifle and Pistol Association v. Bruen, Judge O’Connor established the test for whether the Constitution protects an arm is whether it’s in lawful common use or not. And he said the Court had already determined modern handguns fit the bill.

“A weapon is in ‘common use’ rather than ‘dangerous and unusual’ if it is ‘commonly possessed by law-abiding citizens for lawful purposes today,’” he wrote. “The relevant inquiry under this standard is the current total number of a particular weapon that is in lawful possession, ownership, and circulation throughout the United States. As a per se matter, semiautomatic pistols are commonly used weapons for lawful self-defense purposes across the United States today.”

From there, he found adding a brace to a pistol “does not somehow alter that status and effectively strip these pistols of their Second Amendment protection.” Then he argued the ATF’s own estimate for how many braced pistols have been legally purchased over the years directly undercut its argument they could be banned or significantly restricted.

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Karn v. U.S. State Department found that computer code is protected speech. But this judge decided that, because cad files can communicate with the machines directly, they are not protected…really.

Ahhhh. So does that mean ASCII files are no longer free speech after some judge realizes they can be sent directly to an inkjet printer?

These old, activist judges will learn quickly that you can’t stop the signal.

Federal Judge Rules Gun CAD Files are Not Protected Speech

A federal judge in New Jersey ruled that computer code that lets someone produce firearms is not protected speech under the First Amendment.

In the case, Defense Distributed v. Platkin, Federal District Court Judge Michael A. Shipp dismissed the lawsuit that Defense Distributed and the Second Amendment Foundation ( SAF) brought against New Jersey’s law banning the sharing of gun computer-aided design files (CAD). Even before the law was passed, New Jersey issued a cease-and-desist letter to the company in early 2018, demanding it stop publishing firearms information that New Jersey residents could access. Defense Distributed has been posting CAD files on its Def Cad website that allow users to print firearms using 3D printers. New Jersey claimed publishing these files broke the state’s public nuisance and negligence laws.

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Judge halts Maryland’s ban on carrying guns in places selling alcohol and near demonstrations

A federal judge on Friday blocked several restrictions Maryland lawmakers tried to impose on the ability to carry a firearm, while leaving other gun control measures in place.

Judge George L. Russell III, an Obama appointee, issued a preliminary injunction halting Maryland’s new restrictions banning the carrying of a gun in places selling alcohol, in private buildings or property without owner’s consent and within 1,000 feet of a public demonstration.

He reasoned there was no historical basis to leave those rules in place in light of the Second Amendment challenge brought by a group of plaintiffs and gun rights groups. It was filed against Maryland’s Gun Safety Act of 2023 that is set to take effect Sunday.

Judge Russell analyzed the restrictions following the Supreme Court’s ruling last year that upended New York’s license-to-carry measure, in which the state required people to show a proper need to carry a gun. The majority of the high court said any gun control measure must be consistent with the nation’s tradition and history back to its founding.

Using that precedent as a guide, Judge Russell upheld state bans against the carrying of a gun in museums, health care facilities, state parks, mass transit, school grounds, government buildings, casinos, racetracks, amusement parks and stadiums. He said there were traditions showing regulation of guns in those places.

Maryland lawmakers passed the law after the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association Inc. v. Bruen, which held tat carrying a pistol in public is a constitutional right. The high court’s decision has led to many gun control measures being upended across the country as lower courts try to find historical analogs when weighing a gun control measure against a Second Amendment challenge.

Magazines are as much a part of a gun as ammo and other accoutrements, and are just as protected from goobermint restriction. The 2nd amendment is not an ‘allowance’, or ‘permission’ to keep and bear arms.
It restricts goobermint, not the people.
Judges, legislators and bureaucraps who think otherwise are nothing but clear domestic enemies of the Constitution, which the Bill of Rights is part.

BLUF
Nevertheless, it has become abundantly clear that whether or not a judge is sympathetic to the idea that magazines are “arms” is the most relevant dividing line in this hotly contested slice of Second Amendment jurisprudence. It will undoubtedly be the hinge point in many future rulings as these bans continue to be litigated.

Analysis: Judges Diverge on Whether Second Amendment Protects Ammo Magazines

Are ammunition magazines constitutionally protected arms? Or are they simply accessories incidental to the weapons covered under the Second Amendment?

Different judges have reached wildly different conclusions since the Supreme Court’s decision in NYSRPA v. Bruen last June, particularly regarding the so-called large capacity magazines often banned in blue states. It is no surprise then that the outcomes of the various legal challenges taking aim at those prohibitions have primarily been settled depending on which side a particular judge falls on this very question. Two major decisions handed down in the last week demonstrate this.

Last Friday, U.S. District Judge Roger Benitez struck down California’s ban on ammunition magazines capable of holding more than ten rounds.

“This case is about a California state law that makes it a crime to keep and bear common firearm magazines typically possessed for lawful purposes,” Judge Benitez wrote in Duncan v. Bonta. “Based on the text, history, and tradition of the Second Amendment, this law is clearly unconstitutional.”

Just three days later, U.S. District Judge Mary Dimke upheld Washington state’s nearly identical magazine ban.

“At present, the evidence in the record is insufficient to establish that Plaintiffs are likely to prove that large capacity magazines fall within the Second Amendment right,” Judge Dimke wrote in Brumback v. Ferguson.

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Whamm, Zwap, Bam! Lawsuits Already Filed Over California’s Newest Gun Control Laws
GOA, GOF join Gun Owners of California in suit challenging California’s brand new anti-concealed carry law

Senate Bill 2 by Senator Anthony Portantino’s (D–Burbank), which is California’sresponse bill to New York Rifle and Pistol Association v. Bruen, was signed into law Tuesday. SB 2 enacts numerous “sensitive locations” where guns are banned, and changes requirements to obtain a concealed carry license. SB 2 was also sponsored by Gov. Gavin Newsom and Attorney General Rob Bonta, and simply put illegally imposes restrictions on those seeking a California Concealed Carry Weapons (CCW) permit.

Notably, Newsom, Bonta and Portantino know they are imposing restrictions to those applying for CCWs, when virtually no crimes are committed by CCW holders, who are required to pass background checks by County Sheriffs, and take gun safety courses.

Remarkably, CCW permit holders don’t commit mass shootings, they stop them. We’ve never had a comment or even a reaction from Gov. Newsom, AG Bonta or Sen. Portantino on this fact. Instead they obsess on legal gun owners, seeking ways to limit Second Amendment protections.

Gun Owners of America and the Gun Owners Foundation just announced:

Gun Owners of America (GOA) and the Gun Owners Foundation (GOF) teamed up with Gun Owners of California (GOC) to promptly serve California AG Rob Bonta in a lawsuit challenging portions of SB 2, a bill that anti-gun Governor Gavin Newsom signed into law Tuesday. This unconstitutional legislation was passed in response to the Bruen decision (which ended the state’s draconian “may-issue” policy), and among other provisions would:

    • Enact highly restrictive “sensitive locations” where concealed carrying would be prohibited, including all private property unless expressly permitted by the owner;
    • Require 16 hours of training;
    • And significantly increase the costs associated with securing a permit.

This suit specifically goes after the “sensitive locations” provision of the law.

So that is strike one.

This is strike two.

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CRPA, SAF, GOA and Others Jointly File Federal Lawsuit Challenging California’s Carry Restriction Law.

Multiple gun owner’s rights advocacy groups and individuals have joined together and filed a Second Amendment challenge to Senate Bill (SB2) in the United States District Court. The lawsuit is known as May v. Bonta and you can see the filings so far here. We are already in contact with the state’s lawyers, are working out a briefing schedule, and have a tentative hearing date on a motion for preliminary injunction on December 4, 2023.

SB2 designates much of the state as a “sensitive place” and thereby eliminates those places where law-abiding gun owners who have qualified for and been issued a permit to carry a firearm by law enforcement can carry their approved firearms. So, SB2 effectively makes a permit useless. SB2 also makes it much more time-consuming and costly to obtain a concealed carry permit.

SB2 is a vindictive legislative response designed to get around the Supreme Court’s historic Bruen decision from 2022. Bruen held that a permit to carry a firearm in public to defend yourself and your family is a right, not a privilege. As a result, California and other states that previously limited access to these permits had to start issuing them, and the number of permit holders in California has greatly increased.

The Bruen decision also clarifies that governments cannot limit the usefulness of these permits by over-designating places as “sensitive,” where carrying a firearm, even with a permit, would be prohibited. Governor Newsom and the anti-gun-owner legislators who voted for this law are trying to do exactly that. They know this bill will only affect lawful gun owners because they are the only ones who pass the qualification process to get a permit.

SB2 does nothing to stop gun violence by criminals. And in fact, data from several states demonstrates that Americans with concealed carry permits commit crimes at extraordinarily low rates, as the lawsuit explains. Recently, a Hawaii district court relied in part on this same data, which was presented to it by some of the same associations now challenging SB2, to conclude that Hawaii’s similar law could be enjoined.

Designating so many places as gun-free zones is a retaliatory tactic coordinated by well-financed national gun control advocacy that is being used in states hostile to gun ownership to make the right to defend yourself in public useless. California follows in the footsteps of Hawaii, New York, New Jersey, Maryland, and Hawaii.

Federal courts in those other jurisdictions have already enjoined laws like SB2. These rulings include, but are not limited to: Antonyuk v. Hochul, No. 1:22-CV-0986 (GTS/CFH), 2022 U.S. Dist. LEXIS 201944 (N.D.N.Y. Nov. 7, 2022); Koons v. Platkin, No. CV 22-7463 (RMB/AMD), 2023 WL 3478604 (D.N.J. May 16, 2023); and Wolford v. Lopez, No. CV 23-00265 LEK-WRP, 2023 WL 5043805, at *1 (D. Haw. Aug. 8, 2023).

It is an open secret in the hallways of the Capital that Newsom hopes to pass so many gun control laws that Second Amendment advocacy groups cannot keep up. But those groups have responded by forming an unprecedented strategic partnership and coordinating their efforts to fight back.

We now have a strong coalition of gun rights groups fighting against these laws. And when we win, the state will be forced to pay our legal bill.

Pro-Second Amendment groups joining in a lawsuit against Newsom and SB2 are well known in the state, and many have been fighting against unconstitutional gun bans for decades. The coalition includes the California Rifle & Pistol Association, Gun Owners of California, Gun Owners of America, Gun Owners Foundation, and Second Amendment Foundation.

Each organization brings resources, members, donors, and expertise to this challenge. Newsom has unlimited tax dollars to battle for his unconstitutional laws in court and thinks that he can bankrupt us. But we have millions of gun owners who donate to support these challenges. When our elected officials refuse to uphold the law of the land and our Constitution, we are proud to hold that line for the people of California.”

The crown jewel of Newsom’s anti-Second Amendment campaign is his ploy to get a 28th Amendment passed that would gut the Second Amendment, including a ban on semi-automatic firearms. But 38 states would have to agree to that amendment, and 24 states have already filed amicus briefs in courts that urged those courts to strike down laws banning semi-automatic firearms commonly possessed by tens of millions of law-abiding gun owners. So, his constitutional amendment gambit, which insiders already recognize is a ploy to raise money and give him a platform to run his shadow campaign for president, is dead on arrival.

Judge Benitez destroys the 2.2 rounds per DGU lie once and for all

Over two years ago, I read through some court filings in Duncan v. Bonta, the lawsuit against California’s “large capacity” magazine ban. I was left scratching my head at a claim from the State of California in support of their magazine ban, that the average Defensive Gun Use (DGU) incident involves discharging only 2.2 rounds. The more I looked into it, the more obvious it became that this was unsubstantiated.

Since then, Duncan v. Bonta made a trip to the Supreme Court, got GVR’d after NYSRPA v. Bruen, and sent back down the judicial hierarchy to the US District Court for the Southern District of California. The district court published its decision last Friday, in which Judge Roger Benitez completely took apart the 2.2 rounds per DGU canard (PDF pages 26-33):

C. The Invention of the 2.2 Shot Average

…the State’s statistic is suspect. California relies entirely on the opinion of its statistician for the hypothesis that defenders fire an average of only 2.2 shots in cases of confrontation.

Where does the 2.2 shot average originate? There is no national or state government data report on shots fired in self-defense events. There is no public government database. One would expect to see investigatory police reports as the most likely source to accurately capture data on shots fired or number of shell casings found, although not every use of a gun in self-defense is reported to the police. As between the two sides, while in the better position to collect and produce such reports, the State’s Attorney General has not provided a single police report to the Court or to his own expert. 

Without investigatory reports, the State’s expert turns to anecdotal statements, often from bystanders, reported in news media, and selectively studied. She indicates she conducted two studies. Based on these two studies of newspaper stories, she opines that it is statistically rare for a person to fire more than 10 rounds in self-defense and that only 2.2 shots are fired on average. Unfortunately, her opinion lacks classic indicia of reliability and her two studies cannot be reproduced and are not peer-reviewed.

“Reliability and validity are two aspects of accuracy in measurement. In statistics, reliability refers to reproducibility of results.” Her studies cannot be tested because she has not disclosed her data. Her studies have not been replicated. In fact, the formula used to select 200 news stories for the Factiva study is incomprehensible. […]

For one study, Allen says she conducted a search of stories published in the NRA Institute for Legislative Action magazine (known as the Armed Citizen Database) between 2011 and 2017. There is no explanation for the choice to use 2011 for the beginning. After all, the collection of news stories goes back to 1958. Elsewhere in her declaration she studies mass shooting events but for that chooses a much longer time period reaching back to 1982. Likewise, there is no explanation for not updating the study after 2017.

[…] details are completely absent. Allen does not list the 736 stories. Nor does she reveal how she assigned the number of shots fired in self-defense when the news accounts use phrases like “the intruder was shot” but no number of shots was reported, or “there was an exchange of gunfire,” or “multiple rounds were fired.” She includes in her 2.2 average of defensive shots fired, incidents where no shots were fired. […] She does not reveal the imputed number substitute value that she used where the exact number of shots fired was not specified, so her result cannot be reproduced. […] For example, this Court randomly selected two pages from Allen’s mass shooting table: pages 10 and 14. From looking at these two pages (assuming that the sources for the reports were accurate and unbiased) the Court is able to make statistical observations, including the observation that the number of shots fired were unknown 69.04% of the time.

The foundation of the claim was not real data but “anecdata,” which don’t cover nearly as many incidents as actual police reports do. (Not every incident is reported, so even police data is incomplete.)

Second, the sampled news reports were randomly selected. It isn’t clear if there were any process safeguards to prevent cherry picking, and there is no transparency about the included incidents.

Third, the selected timeframes look arbitrary.

Fourth, as Judge Benitez points out, including zero-shot incidents will obviously bring the average down, so it’s questionable.

The most devastating critique is that the expert assigned an arbitrary number of shots fired when news stories didn’t include that crucial detail.

The Court is aware of its obligation to act as a gatekeeper to keep out junk science where it does not meet the reliability standard of Daubert v. Merrell Dow Pharmaceuticals, Inc. […] while questionable expert testimony was admitted, it has now been weighed in light of all of the evidence.

Using interest-balancing, the en banc 9th Circuit shamelessly rubber-stamped California’s infringement using this pathetic junk science. It’s gratifying to see interest-balancing tossed into the garbage alongside this junk science under the new Bruen standard.

Pushback: California county sued for using cellphones to track movements of church-goers

They’re coming for you next: Santa Clara county in California is now being sued by Calvary Chapel San Jose and its pastor Mike McClure for using without warrant the GPS data from the cellphones of the church’s members to track their movements without their knowledge.

On August 22, 2023, a lawsuit was filed by Advocates for Faith and Freedom on behalf of Calvary Chapel San Jose against Santa Clara County, California, for utilizing geofencing methods to spy on church members during the COVID-19 pandemic. Earlier this year, Santa Clara County imposed a $1.2 million fine against the church for not abiding by the State’s and County’s COVID-19 restrictions.

Santa Clara County utilized an investigative method known as geofencing. Geofencing is a technological tool the government uses to track people relative to their location and likely locations. This tool is typically used in police investigations of criminal activity and, in these instances, requires a warrant– which is not always granted.

The lawsuit complaint can be read here [pdf]. As it notes:

Unbeknownst to the public, Defendants embarked on an invasive and warrantless geofencing operation to track residents in the County. The Defendants used this tool under the auspices of researching so-called superspreader events and activities.

Geofencing is a location-based tool used by the government to track individuals through their cell phone data. This tool is generally used in police investigations of criminal activity and requires the government to obtain a warrant, which is limited in time and scope.

The Defendants specifically targeted Calvary Chapel San Jose (“CCSJ”) to demonstrate the church was a large superspreader. The County hoped to use this information in its ongoing state enforcement action against the church. To this day, the County cannot trace one COVID-19 case to the church.

The Defendants put multiple geofences around the church’s property so they could track when and where individuals were on the premises. This operation took place over a year with seemingly no oversight, boundaries, or limitations – meaning the Defendants could track churchgoers in the sanctuary, prayer room, or bathroom.

This type of expansive geofencing operation is not only an invasion of privacy but represents a terrifying precedent if allowed to go unaddressed. As it stands, the Defendants are effectively arguing that, as long as they call it research, any level of government can target and spy on any individual or group at any time for any duration, and, if they so choose, they can wield the collected data against said individuals or groups who oppose their orders. This is not just un-American; it is downright Orwellian. [emphasis mine]

The highlighted sentence is the bottom line. Despite imposing a $1.2 million fine against the church for continuing its regular meetings during the COVID lockdowns, the county has yet to document any evidence that the church’s defiance caused COVID to spread at all. If anything, the county’s illegal data-gathering proved it did not, unequivocally.

Of course, any rational person could have told the county this. The lockdowns did nothing to stop COVID, so there was no reason for the church to stop its Sunday services. In fact, the county’s attempt to forbid religious services (while allowing many other group activities to go on), its totalitarian fining of the church, and its illegal surveillance all strongly suggest that county officials had no interest in stopping COVID, but were actually implementing an anti-religious campaign to suppress religious expression.

The county can deny this accusation, but the evidence tells us it is true. Santa Clara County officials decided to use COVID as an excuse to squelch the religious freeom and first amendment rights of this church and its members. In doing so, it is also attempting to establish a precedent that will allow the government to spy on any citizen for as long as it wants, without warrant and for any reason, and then use that data to condemn that citizen.

Note too that the surveillance was without cause, and could not have gotten a warrant even if the county had tried. The church members were not committing any crimes by going to church. If anything they were simply exercising their first amendment rights, guaranteed from this kind of government interference by the Constitution itself.

The lawsuit demands nominal and compensatory damages as well as attorneys’ fees, claiming the county violated the church’s first and fourth amendment rights. I hope a jury gives the church an award that exceeds the county’s fine by many millions.