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CRPA Litigation Update

December 4, 2014

CRPA and The CRPA Foundation work on behalf of our members to fight the battle for Second Amendment and firearm owners in many ways. These are some of the many cases that we are involved with on behalf of our members.

Bauer v. HarrisPLAINTIFF – Federal court lawsuit challenges the California Department of Justice’s misuse of DROS fee revenues collected from lawful firearm purchasers at the time of sale as violating the Second Amendment. Extensive discovery has been completed and Plaintiffs expect to file a motion for summary judgment next month.

Link to case back page: Bauer v. DOJ
password: DOJ2011

CRPA v. ATFPLAINTIFF – Lawsuit brought on behalf of CRPA members affected by ATF’s determination that certain 80% receivers are considered “firearms.” CRPA seeks modification of ATF’s position that certain 80% receivers are “firearms” because they do not require a jig to complete.

Link to case back page: CRPA v. BATFE

Fyock v. SunnyvaleAMICUS – Lawsuit seeking to confirm Second Amendment protections for standard-capacity magazines capable of holding more than ten rounds, and challenging Sunnyvale’s ban on the possession of these magazines.  A similar lawsuit was also filed against the City and County of San Francisco. These lawsuits are part of a coordinated nationwide litigation campaign to confirm Second Amendment protections for standard-capacity magazines. In March 2014, the district court issued a ruling confirming that the Second Amendment protects standard-capacity magazines over ten rounds, but that the City’s total ban on their possession and use does not violate the Second Amendment.  The case is now fully briefed before the Ninth Circuit Court of Appeals, and oral arguments were held on September 17, 2014.

Link to Amicus Brief: Amicus Brief

Link to case back page:  Fyock v. Sunnyvale

Jackson v. City of San FranciscoAMICUS – Lawsuit challenging three San Francisco ordinances requiring handguns to be locked up while in the home unless being carried, banning the discharge of firearms (the lawsuit already forced amendments authorizing defensive and other lawful discharges), and prohibiting sales of common self-defense (hollow-point) ammunition. Plaintiffs received a favorable published opinion after opposing the City’s challenge to their standing, paving the way for other plaintiffs to bring Second Amendment challenges in the Ninth Circuit. In March 2014, a three-judge panel of the Ninth Circuit affirmed the lower court’s decision denying Plaintiffs’ request for an injunction.  In July 2014, the Ninth Circuit declined to rehear the case by an en banc panel of 11 judges. Plaintiffs request for review by the United States Supreme Court is due December 2014.

http://michellawyers.com/guncasetracker/heller/

Link to Amicus Brief: Amicus Brief

Link to case back page: Jackson v. San Francisco

McKay v. Sheriff HutchensPLAINTIFF – Lawsuit challenging Orange County’s strict requirements for obtaining a CCW, filed after the California legislature banned the “unloaded open carry” of firearms. This case is a follow-up to the Peruta and Richards cases which relied (partially) on the plaintiffs’ ability to openly carry an unloaded firearm. Plaintiffs have fully briefed and argued their appeal before the Ninth Circuit Court of Appeals. The case is currently stayed, awaiting a final mandate from the Court in the Peruta matter.

Link to case back page: McKay v. Sheriff Hutchens

Parker v. State of CaliforniaPLAINTIFF – Lawsuit successfully struck down main portions of California’s AB 962, which would have banned mail order ammunition purchases and required registration and thumbprinting for in-store purchases. Plaintiffs defended against the State’s appeal of the case to the California Court of Appeal, resulting in a 41-page published opinion affirming the victory in full. The case set groundbreaking precedent for due process vagueness challenges, confirming that gun laws must provide heightened levels of clarity in order to withstand vagueness challenges. The case was also the basis for the Governor’s veto of subsequent legislation similar to AB 962.  The State recently asked the California Supreme Court to review the decision, and the Court accepted the case. Briefing before the California Supreme Court will be complete in December 2014, and oral arguments are expected to take place sometime in 2015.

Link to case back page: Parker v. State of California

Peruta v. County of San DiegoPLAINTIFF – Lawsuit challenges San Diego County’s policy that requires residents to demonstrate a special need or “good cause” beyond self-defense to obtain a license to carry a firearm.  On February 13, 2014, the Ninth Circuit ruled in favor of Plaintiffs, confirming that the Second Amendment secures a right to carry a firearm for self-defense, and finding that policies denying that right to average, law-abiding citizens, are unconstitutional. San Diego decided not to appeal the Ninth Circuit’s decision. The California Attorney General’s office, however, filed a request to intervene in the case to continue the appeal process. In November 2014, the Court denied the Attorney General’s request.  The Attorney general now has the option of appealing the denial of her request to intervene in the case, either to an en banc panel of the 9th Circuit or the United States Supreme Court.

Link to case back page: Peruta v. San Diego

Heller v. District of Columbia (Heller III) – AMICUS – This case raises a Second Amendment challenge to the District of Columbia’s draconian registration requirements and its prohibitions on “assault weapons” and “large capacity magazines.”  The lawsuit is currently being briefed before the United States Court of Appeals for the D.C. Circuit. Oral arguments are expected to take place in 2015.

Link to Amicus Brief: Amicus Brief

Link to case back page: Heller v. District of Columbia

Kolbe v. O’MalleyAMICUS – This case raises a Second Amendment challenge to Maryland’s recently enacted bans on so-called “assault weapons” and “large capacity magazines.”  The lawsuit is currently being briefed before the United States Court of Appeals for the Fourth Circuit. Oral arguments are expected to take place in 2015.  In November 2014, CRPA Foundation submitted an important amicus brief explaining that laws totally banning constitutionally-protected arms lack the required fit with government’s interest in keeping those arms from criminals under any level of heightened scrutiny the court could apply.

Link to Amicus Brief: Amicus Brief

Link to case back page: Kolbe v. O’Malley

Mehl v. BlanasAMICUS – Filed amicus brief and participated in oral argument in Ninth Circuit Court of Appeals review of this ill-conceived and poorly prepared case challenging CCW laws and policies. The brief explained the procedural defects in the case and argued that better cases existed for deciding the CCW issues. This dangerous and closely watched case could have created bad case law that would have impacted other CCW cases. Perhaps due to these efforts, the Court disposed of the case in an unpublished decision that avoided reaching the substantive legal questions, leaving those important questions to be decided favorably in Peruta.

Link to Amicus Brief: Amicus Brief

Link to case back page: Mehl v. Blanas

Nichols v. HarrisAMICUS – Filed an amicus brief in Ninth Circuit Court of Appeals that convinced the Court to temporarily stay this lawsuit. The case was filed by a well-intentioned but incompetent non-attorney. The case threatened the future of the right to bear arms for all Californians. The stay allowed other cases involving the right to bear arms to be decided first and provided experienced litigators a better opportunity to evaluate the case to determine whether assisting the plaintiff made sense.

Link to Amicus Brief: Amicus Brief

Link to case back page: Nichols v. Harris

People v. Nguyen –  AMICUS – The law challenged in this case imposes liability for a person who possesses parts that could be assembled to make an illegal “assault weapon,” and who intends to assemble the parts to make an unregistered “assault weapon.”  Under the law, an individual can be convicted of attempted illegal “assault weapon” manufacturing and attempted illegal “assault weapon” possession. CRPA filed a request for depublication with California Supreme Court to prevent having this potentially dangerous appellate court decision from being used as precedent in future cases against firearm owners. The request was denied. The request for depublication can be view here:

Link to Depublication Request: Depublication Request

Link to case back page: People v. Nguyen

Richards v. PrietoAMICUS – Filed amicus brief in Ninth Circuit Court of Appeals supporting the Second Amendment Foundation and other appellants who sued Yolo County, challenging its restrictive CCW  policies.

Link to Amicus Brief: Amicus Brief

Link to case back page: Richards v. Prieto

CRPAF v. Regents of the University of California – PLAINTIFF – Lawsuit successfully forcing government compliance with the California Public Records Act.  The lawsuit is part of an ongoing comprehensive battle over the use of lead ammunition.  This suit was brought to force the government to turn over documents it was shielding from disclosure that purportedly supported the government’s claim that lead ammunition found in harvested game is poisoning California condors.

Other Litigation Efforts:

CRPA’s counsel and the NRA are also involved in a number of other critical Second Amendment cases in California and across the country. Many of the cases being litigated in other jurisdictions could set valuable precedent for future challenges to California gun laws.

Gentry v. Harris (Sacramento County Superior Court, California) Sister state court case to the CRPA’s federal court challenge to the DOJ’s improper theft and use of DROS fees surplusage for general law enforcement activities.

SFVPOA v. City and County of San Francisco (Northern District California, United State District Court.) Sister case to Fyock v. Sunnyvale, challenging San Francisco’s recently enacted ban on the possession of so-called  “large capacity magazines.”  The lawsuit was temporarily dismissed by the Plaintiffs while the Fyock (Sunnyvale) case is on appeal.  Should the Fyock case be successful, this case will immediately be re-filed in San Francisco.

Kitsap County v. Kitsap Rifle & Revolver (State of Washington Court of Appeals, Division II) Lawsuit challenges repressive zoning restrictions for shooting ranges.

Beicker v. Hickenlooper  (10th Circuit, U.S. Court of Appeals) Lawsuit challenges Colorado’s recently enacted legislation banning so-called “assault weapons” and “large-capacity magazines.”

NYSRPA v. Cuomo (2nd Circuit, U.S. Court of Appeals)- Lawsuit challenges New York’s  “Safe Act” banning “assault weapons” and “large-capacity magazines.”

Shew v. Malloy (2nd Circuit, U.S. Court of Appeals) Lawsuit challenges Connecticut’s recently enacted legislation banning “assault weapons” and “large-capacity magazines.”

On the Local Front:

City of Santa Cruz – Submitted an opposition letter to the proposed ordinance adding Chapter 5.62 to the Santa Cruz County Code regarding the regulation of firearm dealers. Opposition Letter

City and County of San Francisco – Submitted an opposition letter to the proposal to ban the possession and sale of certain ammunition, File No. 130040 [Police Code — Possession or Sale of Law Enforcement or Military Ammunition].  Opposition Letter

City of South San Francisco – Submitted an opposition letter to a proposal to prohibit the sale of hollow-point ammunition and to require registration of all ammunition sales.  CPRA’s lawyers also worked directly with the city attorney, prompting him to recommend that the City pull consideration of the ordinance, which it did. Opposition Letter

City of Los Angeles – Submitted multiple opposition letters to a proposed ordinance declaring any “large-capacity magazine” within the City to be a public nuisance and consequently subjecting such magazines to confiscation and summary destruction by the Los Angeles Police Department.  Opposition Letter; Opposition Letter

City of Los Gatos – Submitted an opposition letter to the adoption of draconian restrictions on licensed firearm dealers concerning the sale of firearms and ammunition. Opposition Letter

City of Pleasant Hill – Submitted an opposition letter to the adoption of proposed amendments to Chapter 9.35 of the Pleasant Hill Municipal Code, which introduce several new regulations affecting firearm-related businesses. Opposition Letter

City of San Francisco – Submitted an opposition to the adoption of File No. 130585 — Police Code — Large Capacity Magazines; Sales of Firearms and Ammunition; Reporting Lost or Stolen Firearms; Shooting Ranges. Opposition Letter

City of Los Angeles – Submitted an opposition to Council File No. 11-0962 “Imitation Firearms/Ordinance” Proposed Ordinance seeks to ban, with limited exceptions, the manufacture, sale, or other transfer of imitation firearms unless it is colored bright orange or bright green. It also prohibits the open display or exposure of imitation firearms in public places. Our clients oppose adoption of the Proposed Ordinance because it is preempted by federal law, and it ultimately does nothing to address the City’s concerns with imitation firearms. Opposition Letter

City of Pleasant Hill – Submitted an opposition letter to a proposed zoning ordinance restricting the sale of firearms and ammunition.  Opposition Letter

City of Pleasant Hill – Submitted a letter opposing proposed zoning requirements restricting the sale of firearms and ammunition. Opposition Letter

City of West Sacramento – Submitted a letter opposing a proposal to amend zoning regulations restricting the sale of firearms and ammunition Ordinance 14-9. Opposition Letter

Each of these comment and opposition letters can be viewed here: CRPA Local Ordinance Opposition Letters.

CRPA and The CRPA Foundation work on behalf of our members to fight the battle for Second Amendment and firearm owners in many ways. These are some of the many cases that we are involved with on behalf of our members.

Bauer v. HarrisPLAINTIFF – Federal court lawsuit challenges the California Department of Justice’s misuse of DROS fee revenues collected from lawful firearm purchasers at the time of sale as violating the Second Amendment. Extensive discovery has been completed and Plaintiffs expect to file a motion for summary judgment next month.

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