AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of Law Enforcement Agencies & Personnel
Firearms Related: Second Amendment Issues
Monthly Law Journal Articles: Supreme Court rules that a city’s ban on handguns is unconstitutional, 2010 (7) AELE Mo. L. J. 501.
A federal appeals court upheld the dismissal of a federal civil rights lawsuit against a county claiming that it violated the Second Amendment rights of a businessman and his potential customers when it denied his application for conditional use permits to open a gun shop. The court held that a textual and historical analysis of the Second Amendment demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms. The plaintiff failed to plausibly allege that the county’s ordinance impeded any resident of the county who wishes to purchase a firearm from doing so, and thus he failed to state a claim for relief based on infringement of the Second Amendment rights of his potential customers. The court ruled that he could not state a Second Amendment claim based solely on the ordinance’s restriction on his ability to sell firearms. Teixeira v. County of Alameda, #13-17132, 873 F.3d 670 (9th Cir. en banc 2017).
D.C. residents filed a lawsuit challenging provisions of the District’s Code directing the police chief to issue regulations limiting licenses for the concealed carrying of handguns to those showing a “good reason” to fear injury to their person or property or any other proper reason for carrying a pistol. A federal appeals court ruled that the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions is at the “core” of the Second Amendment. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas such as D.C. or bans on carrying absent a special need for self-defense. The court found that the District's good-reason law is essentially a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. Therefore, the court could strike down the law apart from any particular balancing test. The court remanded the case with instructions to enter permanent injunctions against enforcement of the good-reason law. Wrenn v. District of Columbia, #16-7025, 2017 U.S. App. Lexis 13348 (D.C. Cir.).
A current resident of Maryland brought an as-applied Second Amendment challenge to Maryland's firearms regulatory scheme, arguing that the scheme is unconstitutional as applied to him. He was convicted of a felony in Virginia, but had his civil rights restored by the Governor of Virginia and his firearms rights restored by the Virginia courts. He sought to obtain a permit for a handgun and possess a long gun, both of which he is unable to do in Maryland absent a full pardon from the Governor of Virginia. Upholding the dismissal of his claim, a federal appeals court ruled that a state law felon cannot pass the first step of the United States v. Chester, #09-4084, 628 F.3d 673 (4th Cir. 2010) inquiry when bringing an as-applied challenge to a law disarming felons, unless that person has either received a pardon or the law forming the basis of conviction has been declared unconstitutional or otherwise unlawful. That two step inquiry is as follows:
“The first question is ‘whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee.’ This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. Heller left open the issue of the standard of review, rejecting only rational-basis review. Accordingly, unless the conduct at issue is not protected by the Second Amendment at all, the Government bears the burden of justifying the constitutional validity of the law.”
The court further held that evidence of
rehabilitation, the likelihood of recidivism, and the passage of time may not
be considered at the first step of the Chester inquiry.
Therefore, the court concluded that plaintiff failed at step one of the Chester
analysis in the absence of a full pardon. Hamilton v. Pallozzi, #16-1222, 848
F.3d 614 (4th Cir. 2017).
A man claimed that law enforcement officials violated his Second Amendment rights by seizing ammunition and firearms from his home and then prosecuting him for their possession. The lawsuit challenged the constitutionality of California’s ten-year ban on such possession following a conviction for misdemeanor domestic violence. A federal appeals court, noting that it had already, during a previous case, United States v. Chovan, #11-50107, 735 F.3d 1127 (9th Cir. 2013), upheld a more restrictive federal lifetime ban on possession of firearms and ammunition for those convicted of misdemeanor domestic violence crimes, saw no reason not to also uphold the California ten-year ban. His arrest was also based on probable cause, defeating a false arrest claim. Fortson v. L.A. City Attorney's Office, #15-55497, 2017 U.S. App. Lexis 6029 (9th Cir.).
In a case
challenging the constitutionality under the Second Amendment of Maryland’s
Firearm Safety Act (FSA), a federal appeals court, ruling en banc, found that
the banned assault weapons and large-capacity (over 10 rounds) magazines are
not protected by the Second Amendment. The court majority held that it had no
power to extend Second Amendment protection to the “weapons of war” that the
U.S. Supreme Court decision in District of Columbia v. Heller, #07-290, 554
U.S. 570 (2008) decision “explicitly excluded” from such coverage. The court
majority also found it prudent to rule that — even if the banned assault
weapons and large-capacity magazines were somehow entitled to Second Amendment
protection — the trial court properly subjected the FSA to intermediate
scrutiny and correctly upheld it as constitutional under that standard of
review, despite a vacated appeals court panel decision that adopted strict
scrutiny as the appropriate standard for Second Amendment challenges to
firearms legislation. Four judges filed a dissenting opinion, arguing that
strict scrutiny was the appropriate Second Amendment standard and that the
Second Amendment protects semiautomatic rifles and large capacity ammunition
magazines. Kolbe v. Hogan, Jr., #14-1945, 813 F.3d
160 (4th Cir. 2017).
In 2010 in McDonald v. City of Chicago, #08-1521, 561 U.S. 742 (2010), the U.S. Supreme Court invalidated a Chicago ordinance prohibiting possession of handguns. Chicago then established rules that required one hour of range training as a prerequisite to obtaining a permit to possess a handgun, but banned shooting ranges by zoning throughout the city. In 2011, the Seventh Circuit held that the ban was incompatible with the Second Amendment. The city replaced it with regulations governing shooting ranges. The trial court invalidated a restriction allowing gun ranges only as special uses in manufacturing districts, but upheld a restriction prohibiting gun ranges within 100 feet of another range or within 500 feet of a residential district, school, place of worship, and multiple other uses, and a provision barring anyone under age 18 from entering a shooting range. A federal appeals court has now invalidated all three restrictions. The manufacturing-district classification and the distancing rule together rendered only 2.2% of the city’s total acreage even theoretically available for a range, and no single shooting range yet exists, which severely limited Chicagoans’ Second Amendment right to maintain proficiency in firearm use. The court rejected the city’s “speculative claims of harm to public health and safety” as inadequate to survive the heightened scrutiny that applies to burdens on Second Amendment rights. The city also failed to adequately justify the “overbroad” age restriction; its own witness agreed that youth firearm instruction was prudent and can be conducted in a safe manner. Ezell v. City of Chicago, #14-3312, 2017 U.S. App. Lexis 900 (7th Cir.).
The plaintiffs mounted a Second Amendment challenge to a California state law imposing a ten-day waiting period for all lawful firearm purchases. They challenged the application of the full ten-day waiting period to those purchasers who have previously purchased a firearm or have a permit to carry a concealed weapon and who clear a background check in less than ten days. Applying intermediate scrutiny analysis, the federal appeals court ruled that that the law does not violate Second Amendment rights because the ten-day wait is a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase. The burden of the 10-day wait period on subsequent purchasers who passed the background check in less than 10 days was very small, the court stated, and there was nothing new in having to wait for delivery of a weapon. Additionally, the waiting period provided time not only for a background check, but also for a cooling-off period to deter violence resulting from impulsive purchases of firearms. Silvester v. Harris, #14-16840, 843 F.3d 816 (9th Cir.).
A man sent papers to a state representative accusing him of violating the Constitution and allegedly threatening violence. He said "Now you know why so many of you people or going to be shot because you're too selfish too understand the truth." There were hand-drawn crosshairs on the document. He visited the representative's office and said that he was "ready to start shooting people." The state police were informed of this and determined that he was licensed to own firearms and had some registered. An officer came to the conclusion that his "mental condition is of such a nature that it poses a clear and present danger" that he thought was sufficient under state law to justify summary revocation of firearms rights. Police removed his weapons and told him he could apply to have his firearms card reinstated, encouraging him to submit three character references and a psychologist's report with any such request. Six months later, he did so, submitting three references and a psychologist's report concluding that he was "all bark and no bite." Eventually, the firearms card was reinstated without a hearing and the firearms were returned. A federal appeals court rejected the plaintiff's argument that his Second Amendment and due process rights were violated. Summary revocation, with hearing to follow, is proper in the revocation of firearms rights when delay poses unacceptable risks. In this case, the officer was entitled to qualified immunity on the delay theory, because courts have yet to determine how quickly governmental bodies must act when the right to keep firearms is at stake. Rhein v. Coffman, #15-2867, 825 F.3d 823 (7th Cir. 2016).
A Massachusetts state law prohibiting a handgun purveyor to transfer to a customer any handgun “which does not contain a load indicator or magazine safety disconnect" did not violate the Second Amendment and did not violate due process. The state Attorney General informed firearms dealers and consumers that Glock, Inc.’s third and fourth generation pistols lacked an adequate load indicator, and thus could not be transferred. The statute was not unenforceably vague in violation of due process, as its definition of "load indicator" as a device which plainly indicated that a cartridge was in the firing chamber provided anyone of ordinary intelligence fair notice that what was required was a readily perceptible signal that a gun was loaded. Draper v. Healey, #15-1429, 2016 U.S. App. Lexis 11003 (1st Cir.).
The plaintiffs applied for concealed-carry permits under an Illinois permit system adopted after a Seventh Circuit ruling held that states must permit law-abiding and mentally healthy persons to carry loaded weapons in public. They were rejected because law enforcement agencies objected. They were not informed of who in particular objected or why. After a lawsuit was filed, Illinois changed its regulations to require that such information be given and that the applicant be allowed to respond. The trial court then rejected plaintiffs’ claims, stating that the plaintiffs’ proper recourse was to apply for licenses under the new rules. None of the plaintiffs filed another application. A federal appeals court rejected a "facial" challenge to the law, reasoning that a court should not easily assume that a state would "choose the unconstitutional path" when a valid one was open. The court rejected a challenge to the very existence of a permit requirement as a "prior restraint," reasoning that the state was entitled to check on an applicant's mental health and record of convictions close to the date they propose to go armed on the streets. The appeals court did, however, uphold the statute's placing of the burden on the state to justify any denial of a permit, using a preponderance of the evidence standard. Berron v. Ill. Concealed Carry Licensing Review Bd., #15-2404, 825 F.3d 843 (7th Cir. 2016).
A man, as trustee of his own revocable trust, submitted an application to the ATF to manufacture a machine gun. When it was denied, he sued, challenging the constitutionality under the Second Amendment of a 1986 federal statute making possession of a machine gun unlawful. A federal appeals court concluded that machine guns are not protected by the Second Amendment because they are dangerous and "unusual," and therefore not in common use. The court also ruled that the plaintiff had standing to pursue his claim because trusts were "persons" barred from possessing machine guns under the statute. Hollis v. Lynch, #15-10803, 2016 U.S. App. Lexis 12099 (5th Cir.).
Three persons seeking to open a gun shop in a California county challenged a county ordinance requiring that such a business not be within 500 feet of a residentially zoned district. A federal appeals court held that the right to purchase and sell firearms is part and parcel of the historically recognized fundamental right to keep and bear arms protected by the Second Amendment. The ordinance's potential interference with that right was therefore a proper basis for a Second Amendment challenge, so the trial court's dismissal for failure to state a claim was unwarranted. Burdens on Second Amendment rights are subject to heightened scrutiny, and the county failed to carry its burden because it never justified that there was a reasonable fit between the challenged regulation and its asserted objective, In particular, the county failed to support its claim that gun stores acted as a "magnet for crime." Teixeira v. County of Alameda, #13-17132, 2016 U.S. App. Lexis 8925 (9th Cir.).
The highest court in Massachusetts upheld a state statute prohibiting the private possession of stun guns against a constitutional Second Amendment challenge, on the basis that stun guns were not in common use at the time of the Second Amendment's enactment and therefore were not protected by it. The court also reasoned that stun guns were "dangerous per se at common law and unusual" because they were a modern invention, and that "nothing in the record to suggest that [stun guns] are readily adaptable to use in the military." The U.S. Supreme Court vacated this decision, stating that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," and that it had previously rejected the argument that "only those weapons useful in warfare are protected" by the Second Amendment. The case involved a woman with an abusive boyfriend who found that protective orders she obtained proved futile so she accepted a stun gun from a friend to protect herself and when she brandished it, the ex-boyfriend got scared and left her alone. She was then convicted of violating the state law that barred private possession of stun guns, Caetano v. Massachusetts, #14-10078,194 L. Ed. 2d 99, 2016 U.S. Lexis 1862.
A number of plaintiffs filed suit raising Second Amendment challenges to a Maryland state statute barring law-abiding citizens with the exception of law enforcement officers from possessing the vast majority of semi-automatic rifles which the plaintiffs claimed were commonly kept by several million Americans for defending their families and homes and other lawful purposes. The lawsuit also challenged a ban on possession of detachable ammunition magazines holding more than 10 rounds. A federal appeals court held that Second Amendment rights were implicated, that the burden on such rights was substantial, and that strict scrutiny was the appropriate standard for review of the Second Amendment issues. The appeals court therefore vacated the dismissal of these claims and ordered further proceedings to apply the strict scrutiny standard. The appeals court did uphold, however, the trial court's rejection of the plaintiffs' equal protection challenges to the law enforcement exception to the statute. Kolbe v. Hogan, Jr., #14-1945, 2016 U.S. App. Lexis 1883 (4th Cir.). A rehearing en banc was subsequently granted on March 4, 2016 in Stephen v. Kolbe, #14-1945, 2015 U.S. App. Lexis 4195 (Unpub. 4th Cir.).
The District of Columbia adopted a statute requiring those seeking a license to carry concealed weapons to show a "good reason" why the license should be issued. A federal trial judge who was a visiting judge from the Northern District of New York issued a preliminary injunction restraining enforcement of the "good cause" standard. A federal appeals court, without reaching the merits, vacated the order on jurisdictional grounds. While the visiting judge served under a properly issued designation, that designation was limited to specific and enumerated cases, and the appeals court concluded that the litigation over the D.C. firearms legislation was not among those cases. Wrenn v. District of Columbia, #15-7057, 808 F.3d 81(D.C. Cir. 2015).
A federal appeals court ruled that the core provisions of New York and Connecticut state laws prohibiting possession of semiautomatic assault weapons and large-capacity ammunition magazines did not violate the Second Amendment right to keep and bear arms. The court applied intermediate scrutiny to the claims and found that the laws upheld were substantially related to public safety and crime reduction. It also held that individual provisions challenged were not void for vagueness. It struck down, however, new York's law regulating load limits and Connecticut's law prohibiting the non-semiautomatic Remington 7615. New York State Rifle & Pistol Ass’n v. Cuomo, #14-36, 2015 U.S. App. Lexis 18121 (2nd Cir.).
A federal appeals court upheld against Second Amendment challenges, District of Columbia statutes that required basic registration of long guns, a requirement that those registering firearms be photographed and fingerprinted, and a requirement that those registering the guns personally appear and pay a fee, as well as that they complete a firearms safety and training course. It struck down, however, requirements that a person registering a firearm bring it with them when registering, that they re-register it every three years, that registration be conditioned on passing a test of knowledge of D.C. firearms laws, and a prohibition on registering more than one pistol per registrant during a 30 day period. Heller v. D.C., #14-7071, 2015 U.S. App. Lexis 16632 (D.C. Cir.).
An Illinois municipality passed an ordinance prohibiting possession of defined "assault weapons" or large-capacity magazines (able to accept over 10 rounds). In addition to prohibiting AR-15s and AK-47s by name as "assault weapons," it also included in the definition any semi-automatic gun that can accept a large-capacity magazine and has: a pistol grip without a stock (for semi- automatic pistols, the capacity to accept a magazine outside the pistol grip); a folding, telescoping, or thumbhole stock; a grip for the non-trigger hand; a barrel shroud; or a muzzle brake or compensator. A lawsuit sought to enjoin enforcement of the ordinance as violating the Second Amendment, a claim the trial court rejected. A federal appeals court upheld this result, commenting that the rights guaranteed under the Second Amendment did not "imperil every law regulating firearms." The court declined to decide what "level" of scrutiny should be applied in Second Amendment claims. Instead, the court concluded that whether the right to possess weapons should be extended to the types of weapons at issue in the case was one that had to be decided by the U.S. Supreme Court. For now, the court noted that, while the weapons at issue could be used for self-defense, the ban left residents with many alternative defense options, and that there was data indicating that similar bans reduced the share of gun crimes involving assault weapons. Friedman v. City of Highland Park, #14-3091, 784 F.3d 406 (7th Cir. 2015).
A couple were out walking with their daughter, grandson, and a dog. The man carried a cell phone, holstered on his hip, next to a semiautomatic handgun. a motorcyclist passing by stopped to complain about the visible weapon, and after a heated argument, called 911. The dispatcher stated that the weapon was legal in Ohio with a concealed carry weapon permit. An officer was dispatched, and took possession of the man's weapon. The officer threatened to arrest the man for inducing panic and placed him in handcuffs. After the officer discovered that the man had a carry permit for the weapon, he released him while citing him for failure to disclose personal information, a charge later dropped. The man had produced his driver's license, but told the officer to look up his carry permit. While the trial court rejected First and Second Amendment charges against the officer on summary judgment, it permitted Fourth Amendment and state law claims to go forward. A federal appeals court upheld this result. It noted that the officer had the right to approach the plaintiff and ask him questions, but that Ohio law permitted the man, with his permit, to do exactly what he was doing, openly carry his firearm. The officer had no basis for uncertainty abut the law, and had no evidence that the man was dangerous. All that he saw was that the man was armed, and legally so. There was no basis for reasonable suspicion of inducing panic or that the man needed to be disarmed, and allowing stops in these circumstances would effectively eliminate Fourth Amendment protection for legally armed persons. The court noted that "Not only has the State made open carry of a firearm legal, but it also does not require gun owners to produce or even carry their licenses for inquiring officers." While the officer also claimed that the man made a "furtive motion" towards his weapon before being disarmed, that was disputed and was an issue of fact for a jury. A second officer, who did not arrive on the scene until after the plaintiff was already handcuffed and placed in the back of the first officer's car, however, was entitled to qualified immunity, as he had not detained, disarmed, or handcuffed the plaintiff. Northrup v. City of Toledo Police Dep't., #14-4050, 2015 U.S. App. Lexis 7868, 2015 Fed. App. 0092P (6th Cir.).
A federal appeals court, in a lawsuit claiming that California's concealed handgun laws violate the Second Amendment right to bear arms, held that the right included an ability to carry an operable firearm outside the home, and that carrying such weapons, in or out of the home, was a central component of the right to bear arms. A county's "good cause" requirement before a conceal carry permit was issued violated the Second Amendment right to bear arms in self-defense. The California scheme failed to allow the typical, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The contrary holdings of the Second, Third, andf Fourth Circuits were rejected. Peruta v. County of San Diego, #10-56971, 2014 U.S. App. Lexis 2786 (9th Cir.).
A New Jersey law regulating the issuance of permits to carry handguns in public places and limited them to those who could demonstrate a "justifiable need" to carry a handgun for self-defense did not violate the Second Amendment. Assuming, for the sake of argument, that there was a Second Amendment right to carry guns outside the home, the "justifiable need" standard was a "long-standing regulation" entitled to a presumption of constitutionality. Even without that presumption, it would withstand intermediate scrutiny and was reasonable in light of the state's substantial, critical interest in public safety. The evidence also showed that the state properly engaged in an individualized consideration of each applicants circumstances and his or her objective need to carry a gun in public. Drake v. Filko, #12-1150, 2013 U.S. App. Lexis 15635 (3rd Cir.).
State laws that allow New York City and Nassau County to impose a licensing fee for residential handguns that exceeds the amount of the allowable fee in all other parts of the state did not violate the Second Amendment or equal protection. The current fee in New York City is $340, while in the rest of the state it generally ranges from $3-$10. Kwong v. Bloomberg, #12-1578, 2013 U.S. App. Lexis 13798 (2nd Cir.).
A Maryland state statute that restricts eligibility for a permit to carry, wear, or transport a handgun in public on having a "good and substantial reason" to do this did not violate the constitutional right to bear arms guaranteed by the Second Amendment. It was in keeping with a substantial governmental interest in protecting public safety and preventing crime, which outweighed any implicated right of armed self defense. Woollard v. Gallagher, #12-1437, 2013 U.S. App. Lexis 5617 (4th Cir.).
A federal appeals court has held that being able to be granted a permit to carry a concealed weapon is not a right protected by the Second Amendment. "In light of our nation's extensive practice of restricting citizens' freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections. We reach the same conclusion with respect to [the plaintiff's] claim under the Privileges and Immunities Clause, which is coterminous with his right to travel claim." Peterson v. Martinez, #11-1149, 2013 U.S. App. Lexis 3776 (10th Cir.).
A man in Massachusetts owned a handgun that was kept loaded and unlocked in a bedroom table drawer on the second floor of his house. He had a valid license for the gun. During an argument with his roommate, she took the gun from the drawer and threw it into some bushes next to a neighbor's house. When police discovered this and learned that the gun had been loaded when thrown there, the gun owner was charged with violation of a law that requires that a gun be in the immediate control of the authorized user unless it is in a locked container or locked down with a safety device so that only the authorized owner can use it. He argued that this law was unconstitutional under the Second Amendment and violated his right to have a handgun in his home for self-defense. The highest court in Massachusetts rejected this argument, finding that it did not interfere with the ability of a licensed gun owner to keep or carry a loaded firearm in his immediate control for self defense. The law properly aimed at preventing those not licensed to possess or carry firearms from gaining access to them. Commonwealth v. McGowan, #SJC-11076, 2013 Mass. Lexis 13
Illinois gun owners, in two consolidated cases, claimed that state laws broadly prohibiting carrying a gun ready to use (loaded, immediately accessible and uncased), violated the Second Amendment. The statute in question made exceptions for police, security personnel, hunters, members of target shooting clubs, a person on his own property, in his home, in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun. Aside from those exceptions, however, even an unloaded gun may not be carried in public unless carried openly outside a vehicle in an unincorporated area and when ammunition is not immediately accessible. Noting that the U.S. Supreme Court had not yet addressed whether the Second Amendment created a right of self-defense outside the home, the federal appeals court, by a 2-1 vote, found that the individual right to bear arms implied a right to carry a loaded gun outside the home for self-defense. Illinois failed to meet its burden of showing that its broad restrictions on carrying weapons outside the home were justified by more than a mere rational relationship to an increase in public safety. The statute was declared unconstitutional and the lower courts were told to permanently enjoin it. The appeals court gave the Illinois legislature a deadline of six months to adopt a new statute regarding the carrying of firearms in public that would comply with the court's reasoning. The court noted that Illinois has been, up to now, the only state with no legal provisions for the issuance of conceal carry permits to gun owners who are members of the general public. Moore v. Madigan, #12-1269, 2012 U.S. App. Lexis 25264 (7th Cir.).
A federal appeals court held that the Second Amendment does not guarantee an individual right to carry handguns outside the home for self-defense. The court rejected challenges to the actions of licensing officers in denying the plaintiffs concealed handgun licenses under a state statute requiring that they show proper cause for the issuance of such a license. In the alternative, the appeals court found that the requirement of proper cause would be constitutional even if the carrying of a handgun outside the home implicated the Second Amendment individual right to bear arms. The court ruled that intermediate scrutiny was the appropriate legal standard for laws that limit Second Amendment rights and should be upheld if they are substantially related to achieving an important governmental interest. In this instance, the proper cause requirement was justified by interests in public safety and crime prevention. The state had not banned handgun possession, but limited it to those who had an actual need to carry a weapon, which did not violate the Second Amendment. Kachalsky v. County of Westchester, #11-3642, 701 F.3d 81 (2nd Cir. 2012).
A federal appeals court ruled that a federal statute and accompanying regulations which barred federal licensed firearms dealers from selling handguns to persons under the age of 21 did not violate the Second Amendment right to bear arms. The fact that Congress imposed the age restriction only on commercial arms sales did not violate the right of equal protection of the law. National Rifle Association v. Bureau of Alcohol, Tobacco, #11-10959, 2012 U.S. App. Lexis 22197 (5th Cir.).
A Tennessee state law allows holders of gun permits to carry their handguns in a state-owned or operated public place, provided that the barrel of the gun is less than a foot long. Relying on that law, the holder of a permit slung his AK-47 pistol, which had an 11-1/2 inch barrel across his chest, which bore camouflage, along with a 30-round clip, and went for a walk through a state park. After this alarmed a number of other people, a ranger in the park stopped him, ordered him to get on the ground, and held him until a determination could be made that his weapon was legal. Doing so did not violate the Fourth Amendment, as it was simply a legitimate investigatory stop. The court also rejected an argument that the ranger's actions violated the Second Amendment, since no court "has held that the Second Amendment encompasses a right to bear arms in state parks." Embody v. Ward, #11-5963, 695 F.3d 577 (6th Cir. 2012).
An ex-police officer had her firearms license revoked shortly after she resigned from the department. Renewal was denied because she checked no on a question as to whether she had resigned with charges pending, and there had actually been an unresolved incident inquiry pending. She sued, claiming that she had a Second Amendment right to the license, which would allow her to carry a concealed handgun outside her home for self-defense. The appeals court ruled that current Supreme Court case law concerning a Second Amendment right to possess a handgun for self-defense applies to the home and that "the government may regulate the carrying of concealed weapons outside of the home." Revoking her firearms license on the basis of her providing false information on the application for renewal did not violate her rights. Hightower v. City of Boston, #11-2281, 2012 U.S. App. Lexis 18445 (1st Cir.).
A federal law barring individuals from transporting firearms into their state acquired in another state did not violate the Second Amendment. The plaintiff argued that the combination of New York's licensing statute, which made it difficult for him to purchase a handgun in New York, with the federal prohibition on importing the weapon purchased in Florida effectively denied him the right to own a handgun for self-defense. The court rejected this argument, pointing out that the plaintiff could have, in fact, applied for a New York permit, which provided him with an adequate alternative means to acquire a gun for self-defense. United States v. DeCastro, #10–3773, 682 F.3d 160 (2nd Cir. 2012).
Plaintiffs who wished to hold gun shows at a county's fairgrounds challenged, as a violation of the Second Amendment, an ordinance prohibiting possessing firearms on county property. The county's subsequent interpretation of the ordinance as allowing gun shows on county property, as long as the weapons were attached by a sturdy cable to a table or other fixture, resolved any possible Second Amendment claims. Potential buyers could, under these circumstances, physically inspect the firearms as long as they were properly secured. Under the Second Amendment, there can be reasonable conditions and qualifications on commercial gun sales. Nordyke v. King, #07-15763, 681 F.3d 1041, (9th Cir. en banc. 2012)
During an arrest, officers seized a pistol owned by the arrestee. The weapon was not returned after the prosecution against him was dropped. He claimed that the failure to return his weapon and an alleged prosecutor's policy not to return firearms seized during arrests violated the Second Amendment right to keep and bear arms. A federal appeals court rejected these claims, since the "right protected by the Second Amendment is not a property-like right to a specific firearm." The plaintiff did not show that the defendants interfered in any way with his right or ability to obtain or retain other firearms. The court also found no violation of due process, since there were adequate remedies under state law for any wrongful withholding of personal property. Houston v. City of New Orleans, #11-30198, 2012 U.S. App. Lexis 5370 (5th Cir.),
A man active in advocating the right to carry concealed firearms in public openly carried a holstered handgun into retail stores on two occasions. Both times, he was arrested for disorderly conduct and had his gun confiscated. He was not prosecuted and each time his gun was eventually returned. He claimed that his conduct was not disorderly and was protected under the federal and state constitutions. The officers were entitled to qualified immunity on unlawful arrest claims. The officers could not have anticipated that the U.S. Supreme Court would subsequently issue Second Amendment opinions raising an issue about whether his conduct was lawful and were not required to balance alleged firearms rights under the Wisconsin state constitution against the disorderly conduct law. The officers also were not liable for violating the plaintiff's rights under the federal Privacy Act by requesting his Social Security number during one of the incidents, since it was not clearly established that they had to inform him whether the disclosure of his Social Security number was voluntary or mandatory, and they had not denied him any "right, benefit, or privilege" based on his refusal to disclose the number. The court also rejected claims for unlawful seizure of his property, the handgun. Gonzalez v. Village of West Milwaukee, #10-2356, 2012 U.S. App. Lexis 1965 (7th Cir.).
An officer stopped a motorist and took him into custody on an outstanding arrest warrant. In the course of the arrest, the officer retrieved the man's legally purchased and licensed handgun from his vehicle and confiscated it. The charges against the arrestee are later dropped, but the arrestee is told that his gun will not be returned and that he should go to court to seek a replevin order if he wants it. The initial seizure of the gun pursuant to a valid arrest was not a violation of due process, but the court rules that the subsequent refusal to return the weapon with no legal grounds to support it could form the basis for a valid due process claim. When "an established state procedure deprives one of property, post-deprivation remedies generally fail to satisfy" due process requirements. The court also holds, however, that the city could not be held liable for a violation of the Second Amendment, since that "confers a right only to keep and bear arms generally, not a right to possess a particular firearm." Walters v. Wolf, #10-3597, 660 F.3d 307 (8th Cir. 2011).
The operators of gun shows brought a lawsuit, challenging, on Second Amendment grounds, a county ordinance that prohibited bringing firearms or ammunition onto county property, effectively prohibiting gun shows that had previously been held at the county's public fairgrounds. A federal appeals court held that heightened scrutiny does not apply to Second Amendment claims unless the government regulation in question "substantially burdens" the right to keep and bears arms.
In this case, the mere refusal of the county to allow the use of its property to facilitate the exercise of a Second Amendment right did not constitute a "substantial burden." In light of the fact that the complaint was initially drafted before several recent important U.S. Supreme Court decisions on Second Amendment rights, however, the court ruled that the plaintiff should have the opportunity to amend their complaint to attempt to present a viable Second Amendment claim. Nordyke v. King, #07-15763, 2011 U.S. App. Lexis 8906 (9th Cir.).
Having previously found a Second Amendment individual right to bear arms in striking down a handgun ban in the federal District of Columbia, the U.S. Supreme Court has extended that ruling, in a case involving a handgun ban by the City of Chicago. By 5-4, the Court held that the rights guaranteed by the Second Amendment also apply to the states and their subdivisions through the Fourteenth Amendment. McDonald v. City of Chicago, #08-1521, 2010 U.S. Lexis 5523.
Editor's Note: Anticipating that the U.S. Court of Appeals for the Seventh Circuit, asked to consider the Chicago handgun ban on remand in light of this ruling, would strike down the Chicago handgun ban, Chicago days later enacted a new handgun ordinance allowing the purchasing and registering of one handgun per month for every adult resident of a household, while setting forth certain city licensing, registration, and training requirements, as well as restricting possession to one functioning loaded handgun in the home, with restrictions on transport. The revised ordinance also bans gun shops and firing ranges in the city, and prohibits the transfer of weapons within the city except through inheritance. A lawsuit challenging provisions of the new ordinance was filed in federal court days later. See Benson v. City of Chicago, #10-cv-04184, (N.D, Ill. July 6, 2010).
Officers delayed, and in some instances arrested travelers for violating New York state gun laws when they tried to send unloaded guns in checked baggage through various New York airports. The travelers argued that they were entitled to do so under 18 U.S.C. Sec. 926A, which authorizes such transport in certain circumstances, and declares that such transport shall not constitute a violation of local gun laws. In a federal civil rights lawsuit over the issue, an appeals court has held that Sec. 926A cannot be enforced under 42 U.S.C. Sec. 1983. The application of the statute in particular circumstances was complex and uncertain. Under the facts and circumstances of the arrests, the officers acted in an objectively reasonable manner in believing that they had probable cause to arrest for a violation of state gun laws, and that the requirements of the federal statute were not met. Torraco v. Port Authority of New York and New Jersey, #08-1895, 2010 U.S. App. Lexis 13379 (2nd Cir.).
A traveler was arrested at a New Jersey airport by Port Authority of New York and New Jersey police for violating New Jersey gun laws by possessing a handgun and ammunition. The traveler, who had flown to New Jersey from Utah, had a handgun and ammunition in separate locked cases in his checked luggage. Because of a delay, he had to stay overnight in a hotel in New Jersey, and he retrieved his checked luggage before doing so. The next day, when he attempted to fly on to his destination in Pennsylvania, the gun and ammunition were detected during x-raying and he was arrested. He had declared the presence of the gun and ammunition when checking his bags in Utah, where he was licensed for the weapon. He sued for false arrest, claiming that the arrest was unlawful under 18 U.S.C. Sec. 926A, which allows a licensed gun owner to travel from one state through a second, en route to a third, provided that he is licensed to carry the weapon in the first and third state and that it is not readily accessible to him during transport, such as checked in luggage, or locked in a compartment in a vehicle. Upholding summary judgment for the defendants, a federal appeals court found that the plaintiff's conduct did not meet the requirements of the federal statute, since he retrieved his luggage containing the gun and ammunition before going to his New Jersey hotel, and had with him the keys to the locked containers, making the gun and ammunition readily accessible to him, whether or not he actually accessed them. Revell v. Erickson, #09-2029, 598 F.3d 128 (3rd Cir. 2010).
An intermediate Colorado appeals court reinstated a lawsuit challenging a state university policy banning the carrying of concealed weapons on campus by students who have state concealed gun permits. The lawsuit contends that the policy violates state law, including the state constitutional provision providing an individual right to keep and bear arms. The court noted in its opinion that nothing in the statute specifies public university campuses as an exception to the concealed gun permits. Students for Concealed Carry on Campus, LLC v. Regents of the University of Colorado, #09-CA-1230, 2010 Colo. App. Lexis 541.
The North Carolina Supreme Court held that retroactively applying a 2004 state law barring convicted felons from owning or possessing firearms violated the rights of a man convicted of felony drug possession with intent to sell and deliver whose right to possess firearms was restored in 1987 by operation of law after he completed his sentence. The court found that the application of the statute to the plaintiff was an "unreasonable regulation not fairly related to the preservation of public peace and safety," especially in light of the "absence of any exception or possible relief from the statute's operation as applied to the plaintiff." The plaintiff, the court found, does not pose a threat to public peace and safety, in light of his thirty years of law-abiding conduct, his "uncontested lifelong nonviolence toward other citizens," and his compliance in giving up his weapon when informed of the 2004 statute. The court held that this application of the statute violated the right to bear arms guaranteed by the state constitution. Britt v. North Carolina, #488A07, 2009 N.C. Lexis 815. Editor's Note: While federal law generally prohibits, among other things, the purchase or possession of firearms by felons, there is an exception for those whose civil rights have been restored by a state on the predicate state felony conviction. 18 U.S.C. 921(a)(20), in defining terms for the purposes of federal firearms law, provides that: "What constitutes a conviction of such a crime [a felony] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."
The state of Montana has enacted a law, effective October 1, 2009, entitled the Montana Firearms Freedom Act, Ch. 205, Title 30 Mont. Code Annotated, that purports to exempt from all federal firearms regulations, including registration, background checks, and firearms dealer licensing, firearms and ammunition made and retained within the state. The statute asserts the Second, Ninth, and Tenth Amendments as authority for the legislation, as well as the compact entered into between Montana and the U.S. government when Montana became a state in 1889. A similar statute was recently enacted in Tennessee, and similar proposed statutes have been introduced in five other states. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives has taken the position that the Montana legislation violates federal firearms laws and regulation, and that federal law supersedes it. The Second Amendment Foundation, a national gun rights group, together with a Montana group, has announced plans to file suit on October 1, 2009 to seek a court order against the enforcement of federal firearms laws against firearms and ammunition covered by the Montana statute. The Montana statute states that it does not apply to firearms that cannot be carried and used by one person, firearms with a bore diameter greater than 1˝ inches and uses smokeless powder, ammunition that uses exploding projectiles or fully automatic weapons.
Update: As previously reported, a federal appeals court ruled that the rights guaranteed by the Second Amendment apply to the states because they are incorporated by the due process clause of the Fourteenth Amendment, but that the Second Amendment does not guarantee a right to possess guns on government property. The case involved an ordinance banning firearms at a public fairground. This was the only federal appeals court decision to date applying the Second Amendment to the states through the Fourteenth Amendment. Nordyke v. King, #07-15763, 2009 U.S. App. Lexis 8244 (9th Cir.). The U.S. Court of Appeals for the Ninth Circuit has now granted a rehearing en banc in the case, and stated in the order that the original opinion by the three-judge panel "shall not be cited as precedent by or to any court of the Ninth Circuit." Nordyke v. King, #07-15763, 2009 U.S. App. Lexis 16908 (9th Cir.).
Residents of Iowa who were denied applications for nonprofessional permits to carry pistols claimed that these denials, by a county sheriff and his successor, violated their Second and Fourteenth Amendment rights, because no justification was provided and they met all statutory requirements for the permits. The court dismissed the "sheriff's department" as a defendant, since it was not a legal entity under state law, and the statute gave only the sheriff power and discretion to decide whether to issue the permits in question. Claims against the sheriff's "successors" were also dismissed. Dorr v. Weber, #08-4093, 2009 U.S. Dist. Lexis 59110 (W.D. Iowa).
A federal appeals court has rejected a Second Amendment constitutional challenge to two municipalities' handgun bans, ruling that the individual right to bear arms that the U.S. Supreme Court has held is protected by the Second Amendment applies only to the federal government, and is not "incorporated" by the Fourteenth Amendment to apply to the states and municipalities. It held that any decision to apply the Second Amendment in that fashion must be made by the U.S. Supreme Court. The plaintiffs in the case have filed a petition seeking U.S. Supreme Court review of the decision. Nat'l Rifle Ass'n of Am. v. City of Chicago, No. 08-4241, 2009 U.S. App. Lexis 11721 (7th Cir.), petition for certiorari filed June 3, 2009.
An intermediate Pennsylvania appeals court has upheld an injunction barring a city from enforcing two ordinances prohibiting the possession, sale, and transfer of certain types of guns, including assault weapons, and prohibiting purchase of a handgun through a straw purchaser. State law regarding weapons, the court ruled, has the effect of denying municipalities in the state power to regulate guns. The court also upheld the trial court's finding that the plaintiffs lacked standing to challenge three other ordinances which authorize temporary removal of guns when a person poses a risk of imminent harm, requiring notice from the owners of lost or stolen guns, and barring persons subject to an abuse order from possessing or acquiring guns. National Rifle Association v. City of Philadelphia, #1305 C.D. 2008, 2009 Pa. Commw. Lexis;
Gun show promoters failed to show that an ordinance prohibiting the presence of firearms on county property violated their Second Amendment or First Amendment rights. The federal appeals court ruled that the rights guaranteed by the Second Amendment apply to the states because they are incorporated by the due process clause of the Fourteenth Amendment, but that the Second Amendment does not guarantee a right to possess guns on government property. The county could regulate gun possession in sensitive public spaces, and its actions did not violate the promoters' right to self-defense. Even if the holding of a gun show was expressive conduct, the county ordinance was not intended to suppress speech, and the desire to reduce gun violence was a reasonable basis for the law. Finally, the appeals court rejected an equal protection claim based on an argument that the ordinance unequally applied to the possession of guns for promoters holding a gun show and possession of guns for "entertainment" purposes. The court found that entertainment events were not similarly situated to gun shows, as they involved safety measures that the gun show promoters couldn't meet. Nordyke v. King, No. 07-15763, 2009 U.S. App. Lexis 8244 (9th Cir.).
In a lawsuit challenging, on Second Amendment grounds, the constitutionality of a New York State statute criminalizing the possession of nunchakus in the home, a federal appeals court held that the Second Amendment does not apply to the states, but only limits the actions of the federal government. The court also rejected a Fourteenth Amendment substantive due process claim concerning the statute, holding that the ban at issue was supported by a rational purpose, since the items at issue were designed as weapons, with no use other than to maim or kill. Maloney v. Cuomo, Docket No. 07-0581, 2009 U.S. App. Lexis 1402 (2nd Cir.).
Court upholds police commissioner's revocation of New York man's pistol license based on his transport of the handgun to Nevada for a gun convention, when the license only allowed the transport of the gun to authorized hunting areas, and to small arms ranges or shooting clubs. The court rejected the gun owner's argument that his actions were authorized by the Firearms Owners' Protection Act (FOPA), 18 U.S.C. Sec. 926A, allowing the transporting of guns for any lawful purpose between two locations where the gun could lawfully be possessed and carried. The FOPA did not apply because the license did not authorize the lawfully carrying of the gun on the trip to another state. Beach v. Kelly, No. 4012, 113372/06, 2008 N.Y. App. Div. Lexis 5675 (A.D. 1st Dept.).
The U.S. Supreme Court, by a 5-4 vote, ruled that a D.C. ordinance banning handgun possession and requiring that lawfully owned firearms be kept unloaded or bound by a trigger lock violates the Second Amendment. The Court found an individual constitutional right to possess a firearm for use for lawful purposes, such as self-defense within the home. District of Columbia v. Heller, No. 07-290, 2008 U.S. Lexis 5268.
Federal appeals court rules that the Second Amendment to the U.S. Constitution protects the right of an individual to keep and bear firearms, and that exercise of that right is not limited to persons enrolled in a state militia or National Guard unit. Court reinstates lawsuit seeking to challenge D.C. laws prohibiting the registration of handguns, requiring a license to carry a pistol, and mandating that all firearms lawfully owned in the District be contained in a trigger lock or else be kept disassembled and unloaded. Parker v. D.C., No. 04-7041, 478 F.3d 370 (D.C. Cir. 2007).
City and police officers did not violate an arrestee's Second Amendment right to bear arms or his Fourteenth Amendment right to due process before being deprived of his property when his handgun was taken away during his arrest for various criminal charges, and was subsequently destroyed on court order. The court noted that the confiscation of one weapon did not infringe on the arrestee's right to lawfully acquire another weapon, and that the arrestee was provided with notice of the court hearing regarding the disposition of his pistol, and was in attendance at the court proceeding at which theorder for its destruction was issued. Garcha v. City of Beacon, No. 04 CIV.5981, 351 F. Supp. 2d 213 (S.D.N.Y. 2005). [N/R]
278:26 Even though state police violated Maryland state law in turning down, on the basis of past arrests, woman's application to purchase handgun, applicant could not collect damages for violation of federal civil rights; state law remedies were adequate and federal appeals court rules that Second Amendment does not apply to the states Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995).