, and
decides to follow other circuits in finding that section 5841 of the
pre-68 NFA was unconstitutional, in that it compelled self
incrimination.
Decker v. Gibson Products Company of Albany, Inc., 505 F.Supp. 34 (M.D.Ga. 1980)
In this case the court rrejects a suit brought by the family of a woman
killed by a man using a gun he bought at the defendant's store. The
court decides that the federal Gun Control Act does not create a private
right of action; persons claiming to have been injured by persons who
got a gun from someone who violated the statute cannot use the violation
of the statute to recover damages from the party that violated the
statute in the gun sale. The court also decides that in this case the
defendant wasn't negligent in selling the defendant a gun. While he
told the clerk he was a convicted felon, he also produced paperwork
showing he had been pardoned, and the county sheriff told the store that
persons who were pardoned were then able to buy firearms.
Demko v. U.S., 44 Fed.Cl. 83 (Ct.Cl. 1999)
Demko, Thomas A. v. U.S., 216 F.3d 1049 (2000)
DePugh v. U.S., 401 F.2d 346 (8th Cir. 1968)
In this case the trial court exhaustively goes over DePugh's reasons
why his convictions should be overturned. Some of the judge's decisions
on charges involving section 5841, which required registration of firearms,
and which was found in Haynes v. US to violate
the right against selfincrimination, were reversed in the 8th circuit's
decision in US v. DePugh.
The main point of interest in this case (to me anyway) is the court
deciding that a $200 making tax could indeed be due on re-activating a
machine gun registered as an unservicable gun, because making it servicable
fell within the very broad definition of "making" under the Act. The
court was construing the pre-1968 NFA however, and there was no ban on
making new machine guns as we now have, in 922(o).
DeRosa v. Remington Arms Co., Inc., 509 F.Supp. 762 (E.D.N.Y. 1981)
In this case a federal judge grants the motion of Remington to
throw out a jury verdict against it, based upon a claimed design
defect in the trigger pull of the 870 shotgun. The plaintiff's
husband, a police officer, was accidentally killed by his partner
when the partner discharged the shotgun. The plaintiff claimed the
shotgun should have had a stronger trigger pull. The court found
the plaintiff had not proved the higher pull would have avoided
the accident, that the trigger pull was appropriate for police
work, and that the carelessness of the decedent's partner in handling
the shotgun superseded any culpability of Remington.
Dillon v. U.S., 389 F.2d 381 (8th Cir. 1968)
In this case the court throws out a conviction for possessing an
unregistered sawed off shotgun, based on the
Haynes v. US case.
Doe v. Bureau of Alcohol, Tobacco and Firearms, 1997 WL
852086 (D.Conn. 1997)
Doty v. Magnum Research, Inc., 994 F.Supp. 894 (N.D.Ohio 1997)
In this decision in a case involving a suit against the maker and
importer of a handgun that supposedly discharged when the safety was on,
the court decides that the maker of the handgun, Israeli Military
Industries was properly served with the lawsuit, and is subject to the
jurisdiction of the court. IMI argued it was a foreign state, as it was
wholly owned by the Israeli government, and was thus not properly
served under U.S. law.
Dreher v. B.A.T.F., 943 F.Supp. 680 (W.D.La. 1996)
In this case the court refuses to grant the plaintiffs request
for relief from firearm disability, since he is a felon, pointing
to the law which only allows the court to review a decision of
ATF. Since Congress cut off funding for that, there is no decision for
them to review. See McGill and
Rice cases. The court also decides
that the plaintiff's conviction for mail fraud is not a case of
antitrust or similar crimes, which do not subject one to the firearms
disability, whether punishable by imprisonment for more than one year,
or not.
Dreher v. U.S., 115 F.3d 330 (5th Cir. 1997)
Drennon v. U.S., 393 F.2d 342 (8th Cir. 1968)
In this case the 8th circuit decides that the fact that the defendant
didn't make a self incriminaiton argument against his pre-68 NFA
conviction until after the Supreme Court decided the
Haynes case does
not bar him from raising the argument on appeal, immediately after
Haynes was decided. The court decides in view of the fact that every
appeals court to consider this argument had rejected it that the
defendant didn't need to raise it at the trial court in order to not
have waived it, since it would have been a futile argument.
Dugan v. U.S., 341 F.2d 85 (7th Cir. 1965)
In this case the 7th circuit follows the 9th circuit case of
Russell,
and decides that making it a crime to fail to register an NFA firearm,
under the pre-68 NFA, violates the defendant's right against self
incrimination.
Edwards v. City of Goldsboro, 981 F.Supp. 406 (E.D.N.C. 1997)
In this case the court throws out a suit agains the city by a city
police officer after he was disciplined for taking a second job teaching
firearms safety classes for CCW permit applicants. The officer argued
that the action violated his constitutional rights, including his right
to association and under the second amendment. The court disagreed.
Eimann v. Soldier of Fortune, Inc., 880 F.2d 830 (5th Cir. 1989)
This case is similar to the Braun v. SOF case,
but in this case the
estate's of the persons killed by a guy located through a classified ad
in SOF don't get anything. The court basically decides that because the
ad in question was ambiguous as to committing crimes, SOF had no duty
to investigate, or to not run it. Although as far as I could
tell the ad in the Braun case was very similar,
the court there distinguished this case as depending on the ambiguous language of
the ad, while they said the Braun case ad
was not so ambiguous. I would disagree.
Ellman v. Davis, 838 F.Supp. 90 (S.D.N.Y. 1993)
This is a pretty outrageous case. Ellman was a corporate officer
in a private society to prevent cruelty to children. Officers of such
societies were peace officers under NY law, and as such did not need
to get permits to buy or carry handguns. The same was true of
societies to prevent cruelty to animals; the idea was to promote
public welfare in these areas, by private action of the charitable
societies. In practice some became shams, to let people avoid the
onerous and arbitrary NY handgun licensing procedures. As a result
the NY legislature changed the law, and limited the class of peace
officers who could possess and carry handguns without a permit. Obviously
the NY AG was out to get Mr. Ellman, and engaged in a very vindictive
and obviously illegal campaign against him; all as part of getting the
court to dissolve the Westchester Society to Prevent Cruelty to Children.
The AG's office got the court to order Mr. Ellman to turn over to the police
all the handguns he had gotten with his peace officer status, even though
the guns were legally held in New Jersey, where he had moved. For almost
9 months the judge renewed a interlocutory order of civil and then
criminal contempt, for Ellman's refusal to give his property to the
state of New York. Ellman finally made it to federal court, which
ordered him released on bond, and then forbade his incarceration for
anything to do with the NY judge's order, by this decision. Unfortunately,
the ones who should be in jail, the assistant AG, and Judge Aldo Nastasi,
are almost certainly immune for their gross abuse of their office.
This is what you can look forward to in the war on guns.
Erdelyi v. O'Brien, 680 F.2d 61 (9th Cir. 1982)
This is a 9th circuit case where the court
says that as the Calif. law on issuing concealed carry permits
expressly gives the issuing officers complete discretion. There is
no property or liberty right to such a permit under that law, such
that one could sue the officer for refusing to issue it, as a
violation of one's 14th amendment rights under 42 U.S.C. sec.
1983. This is all a matter of statutory interpretation, see the
Indiana Kellogg case for a contrary
conclusion.
Evans v. Higgins, 1989 WL 7365 (D.D.C. 1989)
In this brief, unpublished, decision, the court transfers
Evans' suit over his prosecution for selling Sten machine gun parts
kits, and suggestions on where to get plans and receiver tubing
to Montana, where his criminal prosecution was then pending. As
can be seen in the 9th circuit court of appeals decision also on
the web page (US v. Evans) he was convicted of
conspiring to help people build unregistered Sten guns.
Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990)
This is the case that was a challenge to the
making ban, 18 U.S.C. 922(o). Rather than challenge it on
constitutional grounds, this consists for making the courts decide
what it meant, particularly that mg's could still be made "under
authority" of the government. J.D. Farmer, of Hard Times Armory,
claimed this meant that same as before with an approved Form 1 one
could make an mg for private ownership. The district court
agreed, but the court of appeals reversed, saying that reading of
the law would mean it did not change anything from the way it was
before, and that it was not proper statutory interpretation to
decide an act of congress meant nothing. They looked at the
legislative history, and the law, and decided it meant what
congress apparently intended, no more making mg's for private
ownership.
Fin & Feather Sport Shop, Inc., v. U.S., 481 F.Supp. 800 (D.Neb. 1979)
In this case the court upholds the denial of renewal of the plaintiff's
FFL, because of poor record keeping.
First Commercial Trust Co. v. Colt's Manufacturing Co., Inc., 77 F.3d 1081
(8th Cir. 1996)
In this case the 8th Circuit rejects an argument that Colt is
responsible for the fatal injuries of a child caught in the
crossfire of shots fired by drug dealers, one of whom was armed
with a Colt pistol. The court says it is bound by an Arkansas
state court case, brought by the same lawyer, out of the same
incident, against Lorcin. The Ark. court decided that there was
no tort liability for selling an "inexpensive" handgun, nor for
selling a handgun, or ammo, or making a handgun or ammo, that was
used in a crime, in itself.
Fleish v. Johnston, 145 F.2d 16 (9th Cir. 1944)
Fleish v. Swope, 226 F.2d 310 (9th Cir. 1955)
In this case, Fleish's argument that his NFA conviction and 30 year
sentence were incorrectly calculated and not cumulative, is rejected.
He made a number of appeals of his sentence.
Fraternal Order of Police v. U.S., 981 F.Supp 1 (D.D.C. 1997)
In this case the court upholds the ban on firearm possession by persons
convicted of misdemeanor domestic violence against a challenge brought
by the Fraternal Order of Police, an anti-gun police administrator's
group. The court decides that the classification difference of people
convicted of violent misdemeanors and violent domestic misdemeanors is
rational, and that the law does not infringe on any fundamental rights
including any right to keep and bear arms. The court also decides the
law does not violate the tenth amendment, in that it is a regulation on
interstate commerce.
Fraternal Order of Police v. U.S., 152 F.3d 998 (D.C. Cir. 1998)
In this case the DC Court of Appeals decides that the 1996 Lautenberg
Amendment, banning persons convicted of domestic violence from
possessing firearms, violates the equal protection clause of the
constitution insofar as it prohibits government employees convicted of
domestic violence misdemeanors from possessing firearms, while
permitting those same government employees to possess firearms while
being convicted felons.
Fraternal Order of Police v. U.S., 173 F.3d 898 (D.C.Cir 1999)
In this decision the DC Court of Appeals reverses its earlier decision
in FOP v. U.S., and now decides that in fact the ban on police officers
convicted of domestic violence misdemeanors does not violate the
Constitution, under the 2nd amendment, the 5th amendment right to due
process, ro the 5th amendment right to equal protection of the laws.
Somehow in the space of a few months between the two decisions what was
once an irrational distinction between persons convcited of felony
domestic violence (who may still possess firearms as government
employees) and persons convicted of misdemeanor domestic violence (who
may not) is now suddenly a rational one. Guess they saw the light, when
the government held it up to them.
Frank v. U.S., 860 F.Supp. 1030 (D.Vt. 1994)
In this case the district court strikes down the requirements of the
Brady law as they apply to chief law enforcement officers. The 2nd
circuit reversed this decision, and was in turn reversed by the Supreme
Court decision in Printz v. US. The decision on
remand from the Supremes is also on the page.
Frank v. U.S., 78 F.3d 815 (2nd Cir. 1996)
In this case the 2nd circuit decides that the burdens placed
on local law enforcement as part of the Brady handgun law are
not in violation of the Constitution, specifically the limits
allegedly placed on Congress' ability to burden states by the
10th amendment. Sort of agreeing with the 9th circuit, in
Mack v. US, and disagreeing with the 5th circuit,
in Koog v. US,
the court decides the burden is very light, and as it doesn't
try to require a state to pass a law or suffer a penalty, it is
OK. The Supremes have taken cert. on the Mack case, and should
resolve the conflict among the circuits.
Frank v. U.S., 129 F.3d 273 (2nd Cir. 1997)
This is the decision after remand by the Supreme Court for
reconsideration (after reversal) in light of the decision in
Printz v. US, that the sheriff had standing
to raise the issue of the invalidity
of the Brady law, and that the law as applied to CLEO's was
unconstitutional. The court (reluctantly) modifies their decision as a
result, but reverses the trial court on the severability issue, saying
that since no person affected by the remainder of the law was before
them, no decision in favor or against the rest of the law could be made.
Fresno Rifle and Pistol Club, Inc., v. Van de Camp, 965 F.2d 723 (9th Cir. 1992)
This is the NRA challenge to
the Calif Roberti-Roos AW ban, decided in 1992. They lost. The
court said, agreeing with the
Morton Grove case, that the 2nd
amendment didn't apply to states. And they said the law wasn't a
bill of attainder, as listing banned guns wasn't punishment, in the
meaning that has from the Supreme Court. And they also tried a
novel argument, that as the law banned the "Colt AR-15 Sporter"
and that was one of very few rifles usable in the DCM competition
program, the Calif. law was pre-empted by the federal CMP program.
The court disagreed, saying one could still compete with M1 rifles,
and M14 rifles (M1A's I guess). Note that a similar law listing
guns was partially struck down in the
Springfield Armory case in
Ohio, because the list was irrational and arbitrary, banning one
gun but not an identical one with a different name. That sort of
challenge is still viable to the Calif. law, which does not use a
criteria list, but only bans named guns, and is evaded by renaming
the gun faster than the AG can get it added to the list.
Frye v. U.S., 315 F.2d 491 (9th Cir. 1963)
In this case the 9th circuit essentially repeats its decision in the
Starks case, and decides that the offense
of possessing an unregistered
NFA weapon, under the pre-68 NFA does not violate the defendant's rights
as to self incrimination, even though the punishment for a mere failure
to register does. This case, and a host of others, were overruled by
the Supreme Court in Haynes v. US, and
made moot by amendments to the NFA in 1968.
Galioto v. Department of Treasury, 602 F.Supp. 682 (D.N.J. 1985)
In this case the trial court finds that the provision of the Gun
Control Act that (then) prohibited former mental patients from
owning guns, and did not provide them a way to be released from
the disability denied the former patients due process, and was void.
While an appeal to the Supreme Court of this was pending, Congress re-wrote
this section as part of the FOPA in 1986, and made the Supreme
Court review moot.
Gargotta v. U.S., 77 F.2d 977 (8th Cir. 1935)
In this 1935 case the Court throws out a conviction for receiving stolen
US property, two 1911 pistols. The court states that there was no
evidence from which a reasonable jury could have decided that the
defendant knew the guns were stolen. The fact that they were US
Property marked was not enough, without proof the defendant read the
marking, or the uniqueness of the guns. The defendant used the guns in
a shootout w. Kansas City police - persumably he was convicted of state
charges for that.
Gilbert Equipment Co., Inc., v. Higgins, 709 F. Supp. 1071 (D. Ala. 1989)
This is a federal district court
decision, and paved the way for the backdoor ban on the USAS-12,
Striker and Street Sweeper shotguns by endorsing the ATF's "non-
sporting" finding as to the USAS-12 (at issue in this case) and the
prior non-sporting finding of the Striker-12, that apparently was
not appealed to the courts. A gun must be found to be particularly
suitable for sporting use, or readily adaptable to that, in order
to be lawfully imported after the Gun Control Act of 1968. Prior
to 1984 or so that just meant meeting safety standards. After
that ATF decided to become arbiters of what sport was, and decided
the USAS-12 wasn't suited for hunting, nor trap or skeet, and thus
was unsporting. They rescinded their decision that combat shotgun
matches were sport, which had allowed the import of the SPAS-12,
and decided they were really police training. However they
continued to approve permits for the SPAS-12 until this particular
case came to trial. The non-sporting finding meant the gun was not
covered by the "sporting shotgun" exemption to being considered a
DD, although ATF didn't pick up on this for a number of years. In
any case the Crime Bill solved the problem, making law out of what
had been administrative rulings from ATF. The non-sporting
finding is crap made up after the case was filed, and not part of
the administrative record. As the court itself notes, one of the
principles of administrative law (basically how the courts will
treat actions by administrative agencies like ATF) is that the
record generated by the process itself must justify the decision,
the Agency cannot make stuff up to justify the decision after the
fact. Period. But the court allows it here, basically because (I
think) they agreed that this gun needed to be banned from import
due to its evil looks.
The case also has a rather interesting discussion of whether or
not the 2nd amendment includes a right to import guns. The judge
(magistrate really) concedes who the right applies to (people, not
states), but refuses to agree "keep and bear" includes importation.
I don't know where he thought the guns to be borne were going to
come from though. And he says flat out, to decide otherwise would
gut gun control laws he thinks are good.
Gillespie v. City of Indianapolis, 13 F.Supp.2d 811 (S.D.Ind. 1998)
In this case the trial court dismisses a lawsuit by a police officer
challenging the application of the Lautenberg Amendment to him, banning
him from ever possessing a firearm because of a domestic violence
misdemeanor conviction.
Gillespie v. City of Indianaopis, - F.3d - (7th Cir. 1999)
Gott v. U.S., 432 F.2d 45 (9th Cir. 1970)
In this case the court of appeals reverses a conviction for possessing a
short barreled rifle made in violation of the NFA. The case was right
after the new NFA was enacted, and the defendant contended the
government had to prove the rifle was made after the statute he was
being charged with was enacted, which the government didn't do. The
court agreed, saying if the rifle was made before the law took effect,
then he didn't violate the law.
Gun South, Inc., v. Brady, 877 F.2d 858 (11th Cir. 1989)
This case is from the 11th Circuit court of Appeals, and
concerns the "suspension" of GSI's import permit to bring a large
quantity of AUG-SA rifles. They were in Customs when ATF decided
to administratively ban semi-auto imports, and Customs refused to
release them, on orders from ATF. The court upholds the suspension
of the permit, but does agree it might well be a violation of the
5th amendment (a "taking" of private property), and thus while the
suspension may be OK, the government may have to pay for the value
of the rifles. This would be determined in a separate action
before the Claims Court. As you all may know the settlement in
this case was that ATF let GSI import the guns, but GSI had to
agree to only sell to police officers and military persons who
could produce a note from their CO saying the guns were for duty
use. They are personal property of the officer though. Most AUG-SA
guns out there are from this lot of guns, the cops and military
persons can sell them, if they wish. See
US v. Vollmer for the
limits on this doctrine, and about lying on the form GSI submits
to the feds to sell someone a AUG. In Colorado, the Pueblo
county sheriff was convicted of a crime for certifying the
paperwork for persons who weren't really within the definition allowed
by ATF. See People v. Buckallew.
Hamilton v. Accu-Tek, 935 F.Supp. 1307 (E.D.N.Y. 1996)
In this case, for the first time I know of, the judge
refuses to summarily dismiss a lawsuit against over 25
handgun makers, premised on the idea that the makers conspired
together to either market the handguns to juveniles and
criminals, and/or that they flooded the gun market in such
a way as to make handguns available to children and criminals
by sheer numbers of handguns. The judge did thoughtfully reject
claims based on collective political lobbying (because of the first
amendment) and based on fraud upon government officials.
The suit was brought on behalf of two persons who represented
relatives who had been killed (apparently in a criminal manner)
by persons using handguns. More plaintiffs were to be added.
This has been the goal of the trial lawyers gun grabbers
for years. See the Perkins v. FIE case, for
instance. To get
the courts to make gun makers liable for the criminal misuse of
handguns, and ban them that way. In this case they actually have
a chance at it, since the court refused to reject the proposal
of enterprise liability - where all makers in a field have committed
tortious acts, but the specific maker to be blamed cannot be figured
out in each case, liability is apportioned based on market share or
some other method which is supposed to be fair, as between the defendants.
And you wonder why Clinton got millions from trial lawyers and
trial lawyer lobbies, for his reelection? They share common goals.
Hamilton v. Accu-Tek, 13 F.Supp.2d 366 (E.D.N.Y. 1998)
In this decision in this pending suit by people shot with guns against
the makers and distributors of the guns, the judge again shows his
rather striking bias against guns, and decides that the credibility of
the mother of one of the persons shot with guns, who is seeking to get
free money with this suit, outweighs a rather large mountain of
documentary evidence as to what state her son was a "domiciliary" of.
If her son was a Virginia resident, as he acted and represented when he
was alive, then the mother's case could not be brought with this set of
defendant's, and in fact probably could not be brought in New York at
all, and thus not be before this most anti-gun judge. However, the
judge decides that the mother's testimony that her son was going to move
back to New York was more persuasive than the son's representations on
his driver's license application, motor vehicle registration, and the
fact of his living in Virginia at the time he was killed. Judge
Weinstein has also presided over other trials against gun makers, and
has shown his feelings in those as well.
Hardy v. B.A.T.F., 631 F.2d 653 (9th Cir. 1980)
In this case the court decides that ATF's Raids and Searches manual
is exempt from disclosure under the Freedom of Information Act, as it
relates to internal practices of the agency, and is exempt under exemption
(b)(2). See Caplan v. BATF.
Harris v. Roderick, 933 F.Supp. 977 (D.Idaho 1996)
In this decision the trial court finds that under most claims, the
government defendants that shot and wounded Harris, as well as those
who allegedly perjured themselves at his trial, are not entitled to
immunity for their actions, and thus they claims can proceed to
trial. The 9th Circuit upheld the decisions made in this decision (at
least those that were appealed). See
Harris v. Roderick.
Harris v. Roderick, - F.3d - (9th Cir. 1997)
In this case the 9th circuit affirms the trial court decision finding that
federal agents that participated in the siege at Ruby Ridge, Idaho,
that resulted in the wounding of the plaintiff, Kevin Harris, as well
as the killing of a US Marshal, and two members of the Weaver family,
are not entitled to immunity for their actions. In particular
the court agreed that the shoot to kill policy put in effect, the decision
to shoot Vickie Weaver and Harris, and a conspiracy among the initial
US Marshals to lie about the circumstances that led to the killing of
another US Marshal, all were clearly outside the boundaries of the
Constitution, and should have been so to the officials being sued. A
civil trial on the merits of Harris' claims can proceed.
Harris v. U.S., 933 F.Supp. 972 (D.Idaho 1995)
This case is a ruling by the trial judge in the civil suit
Kenvin Harris filed from injuries he received during the
Ruby Ridge seige by the FBI and US Marshals. It
mostly concerns procedural issues.
Haynes v. U.S., 372 F.2d 651 (5th Cir. 1967), reversed, 390 U.S. 85 (1968)
This is the appeals court case that was reversed by the Supreme Court in
Haynes v. U.S., regarding whether the
registration requirements of the
pre-68 NFA violated the right against self incrimination of the
Constitution. Interestingly, while the Court seems to acknowledge that the
Act compels self incrimination, it notes that the solution is for
persons not to possess the weapons at all (unless they comply with the
NFA). This argument was rejected by the Supreme Court. However the 5th
circuit, and several circuits have revived this same argument to get
around the problem that 18 USC 922(o) created in complying with the NFA
- how can one pay a tax on a gun that the government will not accept?
The answer in the Ardoin case was the flippant
suggestion not to possess
the weapon at all. Pity the 5th circuit didn't learn from the
treatment this same argument got in the Supreme Court in 1967.
Hazelwood v. U.S., 208 F.Supp. 622 (N.D.Ca. 1962)
HC Gun & Knife Shows, Inc. v. City of Houston, - F.3d -
(5th Cir. 2000)
Hetherton v. Sears, Roebuck & Co., 652 F.2d 1152 (3d Cir. 1981)
In this case the circuit court of appeals strikes down part of
Delaware's gun control law on constitutional grounds. Delaware
required gun buyers to be identified by two Delaware "freeholders",
which the court took to mean land owners. The court decided that
the law lacked rationality, as there was no reason renters also
couldn't id a gun buyer, and the court decided that the Supreme
Court treated classifications based on land ownership suspectly.
While the case was pending Delaware revised the law to require
identification by any two people who lived in Delaware. The case
suggests the law was ignored; Sears had sold a gun in violation
of the law to a man who used it to shoot Hetherton, the plaintiff.
Hetherton was trying to show Sears was negligent because its sale
had violated Delaware law. As the court found that law unconstitutional,
Sears wasn't negligent by virtue of having sold a gun in violation of
it.
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)
In this case the 9th circuit decides that an individual denied a CCW permit
by the LA county sheriff cannot raise
a 2nd amendment claim, as that claim can only be raised
by a state denied a right to have a militia by the federal
government, and does not apply to individuals. In other
words, the plaintiff lacked standing to raise the claim.
Hunter v. U.S., 73 F.3d 260 (9th Cir. 1996)
In this case the 9th circuit rejects the Dalton case,
and its own precedent in Kurt, and decides that
it is not a problem for the feds
to prosecute someone for not paying the tax on a gun when the
government is precluded from accepting the tax by the ban on new
machine guns.
The court correctly points out that the same logic ought to apply
to persons who are precluded from registering guns because they are
felons, but does not. Although not an issue in this case, it should
also apply to the non-registerability of existing guns, an idea
rejected in the Tepper case, in the 10th
circuit, and to the
inability to register guns in states that essentially ban them, like
California.
Illinois Sporting Goods Association v. County of Cook, 845 F.Supp. 582
(N.D.Ill. 1994)
In this case the federal court grants an injunction against part of a
1993 Cook County, Illinois, ordinance that restricted the location of
gun dealers in Cook county, to more than 1/2 mile from schools and
playgrounds, on the basis that children shouldn't see that guns are an
acceptable part of daily life. Sort of like pornography shops, I
suppose. In any case, the dealers association challenged the law on
several grounds, only one of which the court agreed with. The court
agreed that the law irrationally distinguished between different gun
sellers, and thus violated the equal protection clause of the 14th
amendment to the Constitution. In particular the law only forced
dealers on leased premises to leave, dealers that owned their business
premises could stay, and stores that sold guns, but did not primarily
sell guns could also stay, places like Wal-Mart, K-Mart and the like.
The court said that such a distinction between dealers who leased and
those that owned, or those that sold other items, was irrational, and
did not further the purposes of the ordinance, as identified by the
county.
Interport, Inc. v. Magaw, 923 F.Supp. 242 (D.D.C. 1996)
In this case the court upholds a made up ATF requirement that
importers of post-86 surplus machine guns get a purchase order
from a governmnetal agency to import the guns for that purpose,
even though they declined to put that requirement in their
regulations, and even though the statute makes no such requirement.
The court found that it was fine anyway. However the court did decline to
let US Customs destroy the plaintiff's machine guns, since the plaintiff
was having trouble finding a bonded warehouse in which to store the guns pending
getting purchase orders. However Interport's request to import the
guns w/o a purchase order, given the storage problems, were denied.
The International Islamic Community of Masjid Baytulkhaliq,
Inc., v. U.S., 981 F.Supp. 352 (D.V.I. 1997)
In this case the court throws out a complaint that the ATF and DEA
conspired to slander, injure or kill members of an Islamic community in
the Virgin Islands. One of the members had an FFL, and ATF hassled him
aobut renewing it, although they did renew it in the end. Later the
local police raided the house looking for illegal guns and drugs, a raid
in which the ATF agent participated in planning. However, the
plaintiffs were not able to show the feds participated in the raid, nor
that the basis for the raid was a pretext for harassment.
Jackson v. U.S., 926 F.2d 763 (8th Cir. 1991)
The court here upholds Jackson's sentence for numerous violations of the
NFA. He argued that he could only get a maximum of one 10 year sentence
for possessing NFA guns at any one time. The court disagreed, deciding
that he could get ten years for each weapon possessed, and thus his
sentence was fine, based on the statute's use of the singular "firearm"
rather than anything else to describe for what the sentence could be
imposed.
Jersey Arms Works, Inc. v. Secertary of Treasury, No. 83-
1130 (D.N.J. July 25, 1983)
Juhnke v. EIG Corp., 444 F.2d 1223 (9th Cir. 1971)
Like the Scurfield case, this
case concerns a suit by a person
who shot himself in the face with a tear gas pen gun against
the maker of the gun, claiming negligence in its design and
marketing. The court upholds a jury verdict in favor of the
maker of the gun.
Matter of Search Warrant for K-Sports, Inc., 163 F.R.D. 594 (C.D.Cal. 1995)
In this case the court decides, in a request for the return of items
seized pursuant to a search warrant, but where no criminal prosecution
was initiated, that K-Sports is entitled to the return of all items,
including firearms, except 1000 alleged machine guns, and documents
related to the machine guns, which the government is entitled to copy
and then return. The court holds that the search warrant that was
issued was illegal, in that it did not reasonably describe what was to
be searched, but was more in the way of a general writ, and allowed the
seizure of anything on the premises. The court indicated that as the
government had started a proceeding to forfeit the alleged machine guns,
the court could not order their return, but the return of the machine
guns would depend on the outcome of the forfeiture case.
Kanarr Corp. v. U.S., 413 F.2d 1143 (Ct. Cl. 1969)
In this case Kanarr Corp., one maker of M-79 grenade launchers for
the US Government, appeals the assessment of back due NFA manufacturer
taxes for having made these weapons. The then ATF (ATT division of
the IRS) claims the guns are short rifles, and as there was no
exception for government contractors, they have to have an SOT
to make the guns. The court agrees. Partly as a result of Kanarr's
complaining the 1968 revisions to the NFA included a way for the
SOT to be waived for government contractors who did not sell to the
public. And of course the 1968 NFA changes made the M-79 a destructive
device, and not a short barreled rifle.
Kaneshiro v. U.S., 445 F.2d 1266 (9th Cir. 1971)
In this case the 9th circuit upholds the defendants conviction for
dealing in firearms without a license, under the now repealed Federal
Firearms Act, based on his having arranged for some handguns to be
smuggled into Japan, for sale there.
complaint in Katona, Jr., v. U.S.
Also see US v. DLO
Kilcrease v. U.S., 457 F.2d 1328 (8th Cir. 1972)
In this case the court rejects the argument that a prosecution for
possessing an unregistered NFA firearm under the post-1968 NFA violates
the defendants right against self incrimination. The court notes that
the offense does not call for registration, and in fact the defendant
cannot register the firearm whether he wants to or not. He does not
have a choice between registering the gun and incriminating himself for
possessing it, or possessing it and being prosecuted for failing to
register it, as defendants did under the pre-68 NFA.
See also US v. Black
King v. U.S., 364 F.2d 235 (5th Cir. 1966)
King v. U.S., 292 F.Supp. 767 (D.Colo. 1968)
Kitchens v. Department of the Treasury, 535 F.2d 1197 (9th Cir. 1976)
In this 1976 case, the court of appeals rejects the suggestion that
ATF's refusal to grant the plaintiff relief from his felony related
firearms disability is unreviewable by the courts, and thus orders ATF
to explain why they refused to grant him the relief, and says that the
court can review that explanation for an abuse of discretion. ATF
claimed they could do whatever they wanted, with no accountability.
Knight v. Wal-Mart Stores, Inc., 889 F.Supp. 1532 (S.D. Ga. 1995)
In this case a woman is trying to score free money because the
father of her child killed himself with a gun he bought at
Wal-mart. He had previously been judicially committed to a mental
institution, and was thus barred by the GCA from buying a firearm
from a licensee. The plaintiff claimed that Wal-mart was negligent
in that the sale of the gun was in violation of the GCA. The court
threw out this claim, deciding that the plaintiff had not shown
Wal-mart knew about the commitment, and further the decedent had
lied on the 4473 form. The court rejected a line of cases that
basically made the seller of a gun absolutely liable if it turned
out the buyer was unfit to buy a gun based on the mental health
criteria. The court said that if the seller complied with the GCA;
did not sell to people it knew were ineligible, and had the buyer
fill out the form, it was not liable based on a violation of the GCA.
However, the court set the case for trial on whether Wal-mart knew
the decedent was unstable; under Georgia law a person who provides
a gun to a person they knew was unsuitable to have it can be held
responsible for resulting mayhem. In this case some Wal-mart personnel
apparently believed the decedent was crazy, and he supposedly acted
in a crazy way on the day he bought the gun, by dressing inappropriately
for the weather, and taking to himself. Gun sellers in southern states
would be wise to be careful.
Koog v. U.S., 852 F.Supp. 1376 (W.D.Tex 1994)
In this case a sheriff challenges the burdens on local law enforcement
placed by the Brady law. The court agrees with the government, that the
burdens regarding performing background checks are minimal and
non-instrusive, and thus do not violate the 10th amendment. This
decision was reversed by the 5th Circuit court of appeals, when they
also upheld the Romero case, which reached
the opposite conclusion.
This conclusion was upheld by the Supreme Court in the
Printz v. US case.
Koog v. U.S., 79 F.3d 452 (5th Cir. 1996)
Case striking down much of the Brady law.
complaint in Kropelnicki v. U.S., Case No.
1:94cv186, United States District Court, Western District of North Carolina.
This is a case filed by a NC attorney on his own behalf challenging
the constitutionality of the assault weapon and large capacity magazine
bans in the 1994 Crime Bill. This document is the complaint, the
description of the plaintiff's case. This case was apparently tossed
out on the same basis as the San Diego and NRA cases, that there was no
standing, by an unreported decision.
Complaint in Lomont et. al v. Summers and Buckles (2000)
Case challenging CLEO requirement for NFA weapon transfers
Government brief in support of motion to dismiss, Lomont et. al v. Summers and Buckles (2000)
Lomont v. Summers, Response to Motion to Dismiss(2000)
Lomont v. Summers, - F.Supp.2d - (D.D.C. 2001)
Complaint in Landies v. Magaw, No. 95CV476 (D.D.C. 1995)
Lane v. Washington Daily News 85 F.2d 822 (D.C.Cir. 1936)
This is a libel case, not a criminal prosecution. The paper printed
a story, apprently untrue, saying the plaintiff had been in a car
accident, which revealed he was carrying a cache of weapons, including
two sawed-off shotguns. The question was whether the story was a libel
per se, or a libel per quod. For a libel per se, anyone reading the
story will understand the defamation; it is usually accusations of
criminal conduct, dishonesty, infedility, infection with a loathsome
disease, and a few otehrs I can't remember. A per quod libel requires
additional facts be added to the story, facts the plaintiff alleges
were known to the intended audience. Since Lane alleged no additional
facts, the court had to decide if merely the suggestion of carrying
a cache of weapons, as described in the story, was libelous. The
court decided it was; that the sawed-off shotgun was the instrument of
only the gangster or the lawman, and the story didn't say he was a lawman.
This story was printed in the days before the enactment of the NFA, so
the gun was legal under federal law; had the NFA been in existence the
decision might have been easier, since the story would have more
clearly alleged a violation of law. In fact one is left to wonder if
the story was printed to keep up the pressure to ban the evil gangster
weapons.
Lawmaster v. Ward, - F.3d - (10th Cir. 1997)
In this case the 10th circuit upholds a grant of summary judgment to ATF
agents who conducted a search at the plaintiff's house, on all grounds, except
that regarding whether the conduct of the search violated the 4th amendment.
The court said that there the plaintiff stated a case, and that issue
could proceed to trial. ATF, led by Agent Blair Ward (see, for his
exploits, US v. One DLO Machine Gun,
US v. Fleming, and
US v. Staples)
received information that the plaintiff had a AR-15 converted into
a machine gun with a drop-in auto sear type device. They got a search
warrant based on that information, and proceeded to trash out his
house. There was no machine gun found. The court said that because
they had a search warrant, the search was lawful, as was the entry
onto the property (on a state law claim for trespass). However, the court
did say that certain conduct in the search, (the occurrence of
which was denied by the defendants) in particular grinding cigarette
and cigar ashes into his bedding and clothes, as well as leaving one of
his pistols in a dog dish full of water, were outside lawful conduct
in conducting a search. The court noted that other claimed conduct,
in particular tracking dog crap through the house, could also
constitute such conduct, but since it wasn't raised on appeal, they
weren't addressing it one way or the other.
Lee v. U.S., No. 95-2269 (10th Cir. 1997)
In this brief case the 10th circuit appeals court
reverses a New Mexico district court which had found
the burdens on law enforcement imposed by the Brady
law to be lawful. The court notes that the Supreme
Court decision in the Printz case
requires the case be reversed.
Leslie v. United States, 986 F.Supp. 900 (D.N.J. 1997)
In this case the trial court throws out a lawsuit against the Post
Office and Olin, the maker of Black Talon bullets, brought by the
families of persons killed at the robbery of a post office. The court
says that the Post Office is immune from suit over its decisions as to
whether or not have security at the Post Office. And the court decides
that the Black Talon bullets were not defective, thus there was no case
against them for selling them, under New Jersey law.
Lewin v. Blumenthal, 590 F.2d 268 (8th Cir. 1979)
In this decision the 8th circuit reverses a trial court decision
restoring the plaintiffs FFL, revoked for recordkeeping violations, and
instead decides that there was sufficient evidence for the ATF to take
the action it took, and decides that the trial judge is not able to
evaluate the evidence for himself.
Lewis v. U.S., 408 F.2d 1310 (10th Cir 1969)
This case interprets the pre-68 NFA, and decides whether
the self incrimination problem found by the Supreme Court
in the Haynes case in section 5841,
also applies to a
prosecution for possessing a gun made in violation of section
5821, ie without pre-approval. The court decides no, unlike
the registration section, this crime does not call for any
act which will self-incriminate, noting also that no state
law would prohibit possession of the gun should someone
volunteer an intent to make one. A similar logic would
apply today to a prosecution for possessing a gun made
in violation of the NFA, mere possession is the crime, not
a failure to register.
Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995)
This is an interesting case from the 4th circuit, where a woman
denied a handgun purchase authorization under Maryland law,
without a basis in the law, sued for deprivation of her
constitutional (property) rights, under 42 U.S.C. sec. 1983. The
court denies it, but does so by weaseling, and pretending the
deprivation was inadvertent, and not intentional, which it in fact
was. However, this will come up more and more, as government's
abuse their Brady law power to deny permission to buy handguns for
reasons which the law does not permit.
Petition for certiorari to US Supreme Court in Love v. Pepersack
Lovelace v. U.S., 357 F.2d 306 (5th Cir. 1966)
In this case the 5th circuit upholds the pre-68 NFA ban on possessing
unregistered firearms, although agreeing that the crime of failing to
register the same gun violates the defendant's right against self
incrimination, following the 9th circuit cases of
Frye and Starks, as
well as their decision in Russell. In this
case, although the defendant
was ostensibly charged with possessing an unregistered gun, and not with
failing to register it (charged under sec. 5851, not sec. 5841) because
the indictment included the statement that the defendant himself had not
registered the gun, and that element was submitted to the jury, the
court voided his conviction. As with Frye,
Starks and a line of other
cases, the logic of this case was rejected by the Supreme Court in the
Haynes v. US case, where they decided that
punishment for possession of
an un-registered firearm also violated the 5th amendment.
Mack v. U.S., 856 F.Supp. 1372 (D.Ariz. 1994)
In this case a sheriff challenges the constitutionality of the Brady law
requirements on chief law enforcement officers. The the court agrees
with the sheriff, and voids the requirement that the sheriff conduct any
sort of background check, but rejects the argument that the sheriff can
challenge the criminal sanctions for violating the Brady act, saying
that representations by the Justice Department that CLEO's won't be
prosecuted for ignoring the statute means they do not have standing to
make the challenge, as there is no real likelihood of prosecution, and
thus there is no actual dispute or controversy.
See also
McGee,
Printz, and
Romero.
Mack v. U.S., 66 F.3d 1025 (9th Cir. 1995)
This is an appeal from two cases where lower
courts decided that the part of the Brady law that required local
law enforcement to do background checks for the federal law
violated the tenth amendment. the 9th circuit, predictably,
disagrees, and says that since this burden is light, and
potentially cheap, the feds can force local law enforcement to do
work without any money. The court decides that the part of the law
that threatens criminal prosecution for non-compliance either
doesn't apply to law enforcement or will never be applied against
them, and thus that is not a basis for complaint. Similar cases
are pending in other circuits, if another court of appeals reaches
a contrary decision the matter could well go to the supreme court.
Mars Equipment Corp. v. U.S., 580 F.2d 248 (7th Cir. 1978)
Marshall v. U.S., 422 F.2d 185 (5th Cir. 1970)
In this case the court upholds a conviction for possessing a sawed off
shotgun made in violation of the pre-68 NFA, against a challenge that it
violated the maker's right against self incrimination. The court
decides that because he couldn't have gotten the LE certification to
make the gun, his complying with the law in making the gun wouldn't have
incriminated him, he would have not been able to make the gun legally.
Marshall v. Walker, 958 F.Supp. 359 (N.D.Ill. 1997)
In this case the district court throws out a section 1983 lawsuit
against police officers who arrested the defendant at an
apartment buildiug he owned, and rented out. The court
decides that none of the statutory exceptions to the general
bar on carrying a firearm in Illinois applied. Specifically
the court decided that the building open areas were not his
place of business, or lands under his control, and that a FOID
card did not authorize carrying in a holster, only in a box
or gun case. It appeared the lawsuit was not well pleaded, as
the court was guessing about a lot of issues.
Martin v. Harrington and Richardson, Inc., 743 F.2d 1200 (7th Cir. 1984)
In this case the 7th circuit, construing Illinois law, rejects a suit
attempting to hold the maker of a handgun liable for its use in a crime.
Mavilia v. Stoeger Industries, 574 F.Supp. 107 (D.Mass 1983)
In this case the trial court grants Llama and Stoeger, the maker and
seller of a handgun that was used to kill the plaintiff's husband. He
was accidentally shot during a shootout, apparently. The suit was
premised on the idea that selling handguns is a strict liability tort,
as they are unreasonably dangerous, and that the utility of the handgun
is outweighed by the harm done by it. The court states that these are
basically public policy arguments, not legal ones, and that since the
Mass. legislature has repeatedly refused to ban handguns, it is
inappropriate for the courts to do so. The plaintiff's lawyer on this
case, Windle Turley, is a big personal injury/ambulance chaser from
Dallas. During the early/mid 1980's he filed a number of suits like
this, trying to get the courts to let persons injured with guns sue the
maker or seller of the gun. He was also the plaintiff's counsel in the
Richman v. Charter Arms case, consolidated for appeal with, and cited as
Perkins v. FIE Corp, also on this page. I
believe he is now making
money suing Catholic dioceses, on behalf of persons who claim they were
injured by having sex with priests, or were molested by priests as
children.
Mayesh v. Schultz, 58 F.R.D. 537 (S.D.Ill. 1973)
In this case the court upholds ATF's refusal to renew the plaintiff's
FFL because he sold guns without complying with the Illinois state
waiting period, after being solicited to do so by ATF agents.
McCann v. U.S., 217 F.Supp. 751 (D.Colo. 1963)
In this case the district court voids a conviction for failing to
register a short barreled rifle, under the pre-68 NFA, based on the
Russell case, finding that the section requires
self incrimination in violation of the fifth amendment to the constitution.
McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir. 1997)
In this case the 2nd circuit court of appeals upholds the trial court's
dismissal, in McCarthy v. Sturm Ruger,
of the plaintiff's suit against
Olin, for making "Black Talon" ammunition, based on it haveing a
negligent design, having been negligently marketed, and based on
a products liability theory that it was too dangerous to be sold to
the public. As did that trial court, the court of appeals, with one
anti-gun dissenter, decides that none of the claims state a cause of
action under NY law, and dismisses the case. The opinion notes that
claims against Ruger and Ram-Line, the makers of the gun and the magazine
used, respectively, were dismissed earlier, perhaps after a settlement.
McCarthy v. Sturm, Ruger and Co., Inc., 916 F.Supp. 366 (S.D.N.Y. 1996)
In this case Judge Baer rejects a suit against Winchester for
making and selling the "Black Talon" handgun ammo Colin Ferguson
used to kill people on a NY commuter train. The court decides that
there is no negligence cause of action for selling more
dangerous than average ammo, for criminal use of ammo, nor is
there any strict liability for the criminal use of ammo, on the
part of the maker.
Judge Baer recently got a fair amount of press
for deciding, in another case, that there was no probable cause to
search a vehicle just because the occupants fled at the sight of
the police; fleeing at the sight of the police was appropriate in
the neighborhood inquestion. After much whining, and politicking
about Pres. Klinton's liberal judicial appointments, the judge
suddenly reheard the motion and did a 180 degree turn, and decided the
search was OK, and the drugs seized could be used as evidence. The
lead plaintiff, Carolyn McCarthy, is now (1996) running on a gun
confiscation platform for Congress.
McGee v. U.S., 863 F.Supp. 321 (S.D.Miss. 1994)
In this case a sheriff challenges the constitutionality of the Brady law
requirements on chief law enforcement officers. The the court agrees
with the sheriff, and voids the requirement that the sheriff conduct any
sort of background check, but rejects the argument that the sheriff can
challenge the criminal sanctions for violating the Brady act, saying
that representations by the Justice Department that CLEO's won't be
prosecuted for ignoring the statute means they do not have standing to
make the challenge, as there is no real likelihood of prosecution, and
See also
Mack,
Printz, and
Romero.
McHugh v. Rubin, - F.3d - (2d Cir. 2000)
McKeehan v. U.S., 438 F.2d 739 (6th Cir. 1971)
In this case the court tosses out an attempt by the government
to civilly forfeit 3 machine guns the plaintiff attempted
to register after the Amnesty. The guns had been brought back
by the plaintiff in 1945 from his serivce in WWII. When he
attempted to register them the government seized them, and began
a criminal prosecution as well as the forfeiture case. The
government later agreed to a dismissal of the criminal case. The
court decided that the lack of any use of the guns by plaintiff,
in any way (they sat at a friends house from 1945 until the
attempted registration), and the dismissal of the criminal case
precluded the government from forfeiting them.
McLemore v. U.S., 317 F.Supp. 1077 (N.D.Fla. 1970)
In this case the court upholds the revocation of the plaintiff's FFL for
poor record keeping. The court refuses to give the licensee a new
trial, but rather decides that the administrative hearing before ATF
contained adequate evidence to sustain the revocation.
Milentz v. U.S., 446 F.2d 111 (8th Cir. 1971)
In this case the court upholds the defendant's conviction for possessing
an unregistered short shotgun. The defendant's main argument was that
the NFA violated the due process clause of the constitution because it
didn't require a showing of specific intent for a conviction. Specific
intent means that the defendant meant to break the law, or at least
commit a bad act, rather than general intent, which just means the
defendant knew he was possessing a shotgun. The Supremes rejected
any need for specific intent in the
Freed case, and the defendant's
argument was rejected here as well. Exactly what general intent had
to be shown was the subject of the
Staples case - whether it was
possession of a gun, or of a gun with the characteristics that brought
it within the NFA. The Supremes, rejecting a lot of lower court cases
since Freed, opted for the second, more narrow, requirement.
Mitchell Arms Inc., v. U.S., 7 F.3d 212 (Fed. Cir. 1993)
In this case the Court of Appeals for the Federal Circuit decides
that ATF's suspension and later revocation of Mitchell's permits
to import some Yugoslav made semi-auto AK type rifles was not a
"taking" of private property, such that they would owe compensation
for it, under the 5th amendment. The court decided that as gun
import was an area that was very regulated, and that import permits
were at the whim of ATF, no property interest was created by the
law. The court further decided that as the government did not
confiscate the guns, and Mitchell was free to sell them elsewhere,
or to law enforcement and military organizations in this country,
they had suffered no compensable loss. The court reached a similar
conclusion in the B-West case.
Modern Muzzleloading, Inc. v. Magaw, 1997 WL 785623 (D.D.C. 1997)
Denial of TRO in below case
Modern Muzzleloading, Inc. v. Magaw, 18 F.Supp.2d 29 (D.D.C. 1998)
In this case the court upholds ATF's decision that muzzle loading rifles
that use modern ammunition primers are not antique firearms, but rather
ordinary firearms. This decision was basically made moot by an
amendment to the definition of antique firearm in the GCA, including all
muzzle loading firearms within the definition.
Montgomery v. U.S., 146 F.2d 142 (4th Cir. 1944)
In re Monument Gun Shop, Inc., Case No. 99-1497 (D.Colo. August 11, 2000)
Moodyes v. U.S., 400 F.2d 360 (8th Cir. 1968)
In this case the appeals court upholds the defendants conviction for
possessing a sawed off shotgun made in violation of the pre-68 NFA. The
court upholds the search that resulted in finding the shotgun. The
court also notes in a footnote that while the Supremes court decision in
Haynes did not apply the self incrimination
defense to possesion of NFA
weapons made in violation of the statute, if the Supremes ever did do
that, the defendant could raise a self incrimination defense at that
time.
Moore v. R.G. Industries, 789 F.2d 1326 (9th Cir. 1986)
In this 9th circuit case, construing California law, the court decides
that there is no cause of action for selling a non-defective handgun
that is later used in a crime.
Moore v. U.S., 512 F.2d 1255 (4th Cir. 1975)
Mower v. U.S., 402 F.2d 982 (8th Cir. 1968)
In this case the court of appeals upholds a conviction for possessing
an unservicable machine gun transferred in violation of the NFA (the
registered owner just handed it over, w/o submitting paperwork first),
but voids a charge of moving in interstate commerce an unregistered
gun, finding that Haynes applies to such a
charge. The defendant was
a follower of Robert DePugh (see the cases
related to him) and his
Minuteman outfit. He bought the unservicable gun from someone in Calif.,
who had it legally. When he discovered the guy never submitted the
paperwork, he tried to do it himself, and got arrested for his trouble.
Moyer v. Secretary of the Treasury, 830 F.Supp. 516 (W.D .Mo. 1993)
In this case a federal district court rejects the claim of
a felon who sued after ATF said they could not act on his
request for relief from his federal firearm disability, because
Congress precluded spending appropriated funds for such a
purpose. The court said that Congress could lawfully do this,
it did not infringe on his second or fifth amendment rights.
The court further said that the court could not review ATF's
lack of action in this case, they could only review after ATF
had done an investigation, and rejected the request. If ATF
could not act, the petitioner was without any remedy. Compare
this to the 3rd circuit's decision in
Rice v. BATF, reversing a
district court decision very similar to this one.
N.A.G.E. v. Barrett, 968 F.Supp. 1564 (N.D.Ga. 1997) aff'd w/o
opinion, 155 F.3d 1276 (11th Cir. 1998)
In this case a federal district court upholds 18 USC 922(g)(9)
the firearms disability passed in 1996 for persons convicted of
misdemeanor crimes of domestic violence. The court rejects a
challenge based on equal protection, the tenth amendment, ex post
facto and bill of attainder protections, and due process.
Text of complaint in Napolilli v. U.S., No. F93-0037 (D.Alaska 1993)
National Coalition to Ban Handguns v. B.A.T.F., 715 F.2d 632 (D.C.Cir 1983)
In this case the court agrees that ATF's regulations on who may be
issued a FFL are consistent with the statute, and the statute does not
require bona fide business premises, compliance with local zoning, or
anything more than a plan to conduct business. These criteria were
altered as part of the 1994 Brady law, as can be seen from this 1983
case, while gun controllers would like no one to qualify for an FFL,
they would also like every sale of a gun to be "engaged in the
business', and if done w/o an FFL, be a crime. As this case was decided
before the 1986 amendment that added a definition of "engaged in the
business" you can see that its loose interpretation at that time
persuaded the court that darn near anyone who wanted an FFL should be
able to get one, and that ATF's construction of the GCA to that end was
correct.
Navegar, Inc., v. U.S., 914 F.Supp. 632 (D.D.C. 1996)
In this decision the trial court decides that Navegar, the maker of the
TEC-9, and Penn Arms, the maker of the Striker 12 shotgun, lack
standing to challenge the bans imposed on their respective guns
by the 1994 Crime Bill. This decision was overturned by the
DC Court of Appeals, see Navegar v. U.S.,
so the case is proceeding to a trial.
Navegar, Inc. v. U.S., 103 F.3d 994 (D.C.Cir. 1997)
The first challenge to the assault weapon law will finally
go to trial. In this case the DC Circuit Court of Appeals reversed
the trial court, and instructed it to hear the challenge of
Navegar, the maker of Intratec firearms, and Penn Arms, the maker
of the Striker 12 to the ban on those weapons by name.
All challenges to the AW law up to this case had been thrown out
by the courts, as raising issues not yet ripe for adjudication;
i.e. the plaintiffs had not convinced the court there was a real
chance the law would be used against them - to do that you basically
had to shout out that you planned to violate the law, and not surprisingly
few folks want to do that.
However in this case the court said the makers of the specified guns
could challenge the singling out of their product, as that and
a visit from ATF to inventory their product on hand were sufficient
to create a controversy between the maker and the government.
Navegar, Inc., v. U.S. - F.Supp.2d - (D.D.C. 1998)
Nichols v. U.S., 325 F.Supp. 130 (D.Kan. 1971)
Nordyke v. Santa Clara County, 110 F.3d 707 (9th Cir. 1997)
In this case the 9th circuit court of appeals upholds a decision striking
down a clause in the lease the county made for its fairgrounds, prohibitng
gun shows and related activities at the fairgrounds. The county leased
the grounds to another entity, which in turn leased it to promoters
who wanted to have events there, the county amendment ot the lease was
designed to keep the fairgrounds from being sub-leased to gun show
promoters. To the extent the amendment was a ban on commercial speech
for the sale of a lawful product in a lawful manner (ie solicitations
to buy guns at a gun show) the court said the action of the county was
in violation of the first amendment. The court pointed out that gun shows
are legal under state and federal law, as well as involve a lawful
product, guns. The court also indicated that a ban on gun sales, but
not on speech, would probably pass constitutional scrutiny, but in a
footnote noted it might not pass scrutiny under the California pre-emption
statute relating to firearms.
Norwood v. Soldier of Fortune Magazine, Inc.,
651 F.Supp 1397 (W.D.Ark 1987)
This is the decision of the trial judge on a motion to dismiss from
a third case filed against SOF from a "gun for hire" ad they ran.
The judge says things that are partially overturned by the 11th Circuit
decision in the Braun case, about the first
amendment protection afforded
to a publisher int he case of an ad. The judge is rather clearly biased
against SOF, due to their content. He has two paragraphs where he
rails against the "right to 'bear arms'", and the right ot have gun shows,
when they are just for tools to hurt perople, and tools of destruction.
There doesn't seem to be an appeal of this case, or this decision to
the 11th circuit, perhaps they dropped it, perhaps they settled. But this
judge was rather clearly bad news. Mostly I include it for completeness
on the saga of SOF and the gun for hire ads.
NRA v. Bentsen, 999 F.2d 772 (4th Cir. 1993)
National Rifle Association v. Brady, Order and Judgment of
August 15, 1989, Case No. 2:88-2518-8 (D.S.C. 1989)
National Rifle Ass'n v. Brady, 914 F.2d 475 (4th Cir. 1990)
This is a suit by the NRA against the ATF over the
regulations they created to implement the 1986 FOPA.
Administratively they weakened a lot of the reforms in record
keeping and the place of business rules for FFL's. And of course
the recent Brady and Crime Bills made things even worse, but by law
not regulation. In any event the case goes over why Collector FFL
holders don't have to record their own C&R collection when they get
a C&R FFL, why dealer FFL holders don't have to record drivers
license info when they sell out of their personal collection,
despite what the regs printed in the ATF Red Book say. The case
gives a good overview of how administrative law works, for those
who wondered why ATF can make up rules that have little to no basis
in the statutes they are supposed to be implementing.
Complaint in NRA v Magaw
Text of complaint NRA filed challenging 1994 AW ban - the
case was thrown out for lack of standing
NRA v. Magaw, 909 F.Supp. 490 (E.D.Mich. 1995)
In this case a federal district court dismisses a pre-enforcement challenge
by the NRA and others to the 1994 assault weapon ban. The court decides
that the issue isn't ripe yet, and that the plaintiffs in court do not
have standing to challenge the law.
NRA v. Magaw, 132 F.3d 272 (6th Cir. 1997)
In this case the 6th circuit disagrees, in part, with the
trial judge's decision (also on this page)
that the manufacturer plaintiffs lack
standing to challenge the magazine and assault weapon ban provisions of
the 1994 Crime Bill. The court agrees with the
Navegar v. US case,
that maker's whose product is banned by the law suffer an economic
injury sufficient to let them challenge the law. On the other hand, the
court agrees with the trial court that the organizations and individuals
who want to own the guns lack standing, as the threat of prosecution is
remote and speculative as to them (since they declined to claim they
were breaking, or going to break, the law), and since they alleged no
real economic injury (the court agreed with the
San Diego Gun Rights Committee case, that
an increase in the price of the guns is not enough.)
NRA v. Reno - 11/98 Complaint in NRA suit over FBI gun owner record retention
N.R.A. v. Reno - F.3d - (D.C.Cir. 2000)
Oefinger v. Baker, No. 86-1396 (D.D.C. October 29, 1986)
In this unpublished decision, the DC district court refuses
to stop the 1986 machinegun making ban, based on
a facial challenge to the Act. As with the more recent challenges
to the 1994 ban on semi-auto "assault weapons", the court decides
that the law is not subject to one of the very limited exceptions
to the federal courts refusing to entertain a facial challenge to
a law. The court suggests the proper case is one where the agency
has acted adversely to someone based on the law. See
Farmer v. Higgins.
Oefinger v. Zimmerman, 601 F. Supp. 405 (W.D.Pa. 1984)
This is a 1984 case from Pennsylvania, over
the then ban on possessing NFA weapons there, even by class 3's.
Oefinger (the guy who is DLO, and is in MGN regularly with his
ideas on how to sue to overturn the law enforcement certification)
sues, claiming the federal licensing scheme for gun dealers
precludes Pa. from banning federal licensees from engaging in their
trade in Pa. The court disagrees, saying the GCA and NFA do not
preclude a state from banning even licensees from possessing the
weapons, or making a living peddling or repairing them. During the
pendency of the case the current Pa. law was enacted, making it a
defense to a charge under the law that the weapon (exc. a bomb) was
possessed in compliance with the NFA; making the case moot to a
large extent. Oefinger lost the case, but won the war, as it
were.
Owen v. Magaw, 936 F.Supp. 1568 (D.Kan. 1996)
In this case the district court for Kansas decides to reject the
Rice case,
and follow the McGill case, and decides that
the prohibition on ATF
spending money to act on requests for relief from the federal firearm
disability (by felons) does not mean the courts can review such an
application, but that felons are left without a remedy.
Owen v. Magaw, 122 F.3d 1350 (10th Cir. 1997)
In this case the 10th circuit upholds the
trial court decision, also on
the page, that felons may not apply for relief from their firearm
disability since Congress cut off funding for ATF to act on the
petitions. The court agrees with the 5th circuit, in
McGill, and the
9th, in Burtch, and rejects the 3d circuit
decision in Rice. Felons
serious about trying to get their rights restored need to move to a
state in the third circuit court of appeals, at least until the Supremes
deign to grant cert. in one of these cases.
Page v. U.S., 282 F.2d 807 (8th Cir. 1960)
Palma v. U.S., 48 F.Supp.2d 481 (E.D.Pa. 1999)
Palma v. U.S., - F.3d - (3d Cir. 2000)
Para-Ordnance v. SGS, 73 F.3d 1085 (Fed.Cir. 1995)
In this case the court upholds the invalidation of Para-Ordnance's
patent on the frame design for their high capacity 1911 pistol
frame, after Para-Ord sued the importer of the Llama XI-A and XI-B
pistols, which are apparently total ripoffs of the Para-Ord, to
the point that the mags fit in both frames, although the mag catch
is in a different place. The court decides that the alleged innovations
of the Para-Ord patent are nothing more than an obvious evolution
from the Browning High-Power and Llama Omni pistols. This case is
probably why Entreprise Arms is now cranking out frames that also
ripoff the Para-Ord idea. Or sure look like they do.
Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D.Tex 1985)
In this case a Texas federal district court rejects a suit claiming that
making or selling cheap handguns is an ultrahazardous activity, and that
the seller is otherwise liable for selling a handgun because they
inherently defective.
P.A.W.S. v. Benson, 837 F. Supp. 1070 (D. Or. 1993)
They couldn't even spell his name right, they
meant Lloyd Bentsen, the Sec'y of the Treasury when this case was
brought. Anyway, this is a suit brought by PAWS against ATF
because they refused to accept the registration of over 1000 mg
receivers PAWS made in the time right before the 1986 ban took
effect. ATF claimed they weren't done; PAWS said they made 'em
the way they always had (these were apparently the Sterling clones
they make, they were described as tube receivers), and in any
case, if the receivers weren't done enough, the tubes together with
parts (for this only about 600 guns though) they had on hand meant
they had an mg in the form of a "combination of parts from which an
mg may be assembled". ATF agreed with that, but refused to
register them as pre-ban guns anyway, saying PAWS didn't ask to
register a combination of parts, but to register receivers. PAWS
said the law made no distinction, an MG is an mg, neither the law
nor the regs required they be that specific. In a decision I
would have appealed, but PAWS didn't, the court sides with ATF, and
decides that if ATF says they have to be more specific, they have
to be more specific; and also that PAWS missed their chance to
appeal the decision as to the registrability of the tubes, by
waiting over 6 years from when ATF sent them a letter saying the
tube registration was refused. I think PAWS's lawyers screwed up;
not getting Lloyd Bentsen's name right is a poor sign. As is not
appealing this case, as is missing the statute of limitations
cutoff for appealing the decision on the tubes. Between these
machineguns, the ones that were disallowed in the St Augustine Gun
Works case, the Goff case, and so on; ATF was very effective in
truncating the supply of civilian MG's before that ban. They put in
a lot of work to disallow as many as they could.
Pencak v. Concealed Weapon Licensing Board for the County of St. Clair, 872 F.Supp. 410 (E.D.Mich. 1991)
In this case the federal court throws out a section 1983 suit
against the permit board, based on its refusal to issue concealed
carry permits to anyone, apparently, including the plaintiff.
The court decides that there is no property interest in a permit,
as state law gives the board complete discretion in issuing the
permits, and if there is no property interest there is no
constitutional right violated when they are arbitrary
and capricious in issuing permits.
Peoples Rights Organization v. City of Columbus, 925 F.Supp. 1254
(S.D.Ohio 1996)
In this case the federal district court judge strikes down nearly
all of the revised city of Columbus, OH, assault weapon ban. The
first such ordinance was voided by the 6th Circuit in
Springfield Armory v. Columbus.
The court finds most of the ordinance void
as too vague, and failing to give gun owners notice of what is
prohibited. The vagueness, given that the law requires no state of
mind for a violation (scienter), and is criminal in nature, means
it is unacceptable under the fourteenth amendment. The court upholds
the laws regulation of large capacity magazines, and of
assault shotguns.
Peoples Rights Organization v. City of Columbus, 152 F.3d 522
(6th Cir. 1998)
In this case the 6th circuit upholds the trial court's decision striking
down the city of Columbus assault weapon ban ordinance as
unconstitutionally vague, as to the definitions of assault weapons, and
also striking down the grandfather clause as being so irrational as to
be beyond the power of the city to enact, constitutionally. This case
speaks well for the challenge to parts of the federal assault weapon law
also being challenged in this circuit.
Perez v. Reno, No. SA-97-CA-0604 (W.D.Tex. 1997) Government brief
This is a brief from the government, in a case filed by persons who home
school their kids, over whether the Gun Free School Zones Act applies to
home schooling. In their brief the government claims that they do not
believe the Act applies to persons home schooling their own kids,
although the language of the law would lead one to think otherwise. As
the plaintiffs were not being prosecuted, and the government claimed
they would not try to prosecute for what the plaintiffs wanted to do,
the government requested that the case be dismissed, and I believe that
it was.
Perri v. Department of Treasury, 637 F.2d 1332 (9th Cir. 1980)
In this case the 9th circuit upholds the revocation of the plaintiff's
FFL, for selling firearms to persons who were unqualified to buy them,
through an internediary, a so called "strawman" transaction. ATF sent a
felon to the plainitff's gun shop, to try and buy a handgun, and when
the plaintiff refused, they sent the felon and a second agent, to try and
act as a straw purchaser. The plaintiff sold a handgun to the second
man, and was accused of making the strawman sale as a result. The court
decides there was sufficient evidence that the dealer knew the straw
transaction was prohibited, and further that there was evidence he knew
the second man was purchasing the handgun for the first person.
Perkins v. F.I.E. Corp, 762 F.2d 1250 (5th Cir. 1985)
In this case the 5th circuit rules in two cases, consolidated
for appeal, where the hiers of persons murdered with handguns
want to hold the makers liable for selling the guns to the public.
The court is acting under Louisiana law, although La. uses the
strange French civil law, the result would be the same under the
law of most/all other states. The court decides that there can
be no strict liability for marketing a handgun, that such liability
is either based on ultrahzardous activities, which only relate to
land, or on tort principles that do not apply in La. The court finds
that there is no defect in design for selling a small handgun. Only
if a handgun causes injury by not functioning as it should can
there be liability. In this case the guns worked as designed.
Porter v. U.S., 335 F.Supp. 498 (N.D.Tx. 1971)
Porter v. U.S., 473 F.2d 1329 (5th Cir. 1973)
Powers v. Bureau of Alcohol, Tobacco and Firearms, 505
F.Supp. 695 (M.D.Fla. 1980)
In this case the court upholds ATF's decision not to renew the
plaintiff's FFL. The court agrees with ATF that Powers wilfully failed
to keep records on firearm acquisitions and dispositions, as required by
the law, including on some NFA weapons.
Prino v. Simon, 606 F.2d 449 (4th Cir. 1979)
In this case the appeals court upholds the decision denying the
plaintiff a renewal of his FFL, based on violations of the GCA
recordkeeping requirements.
Printz v. U.S., 854 F.Supp. 1503 (D.Mont. 1994)
In this case a sheriff challenges the constitutionality of the Brady law
requirements on chief law enforcement officers. The the court agrees
with the sheriff, and voids the requirement that the sheriff conduct any
sort of background check, but rejects the argument that the sheriff can
challenge the criminal sanctions for violating the Brady act, saying
that representations by the Justice Department that CLEO's won't be
prosecuted for ignoring the statute means they do not have standing to
make the challenge, as there is no real likelihood of prosecution, and
See also
Mack,
McGee, and
Romero.
Pruitt v. U.S., 364 F.2d 826 (6th Cir. 1966)
In this case the Court rejects the argument that section 5851 of the
pre-68 NFA compels self incrimination in the same way that section 5841
was found by some courts to do. This conclusion was in turn rejected by
the Supreme Court in the Haynes decision, which found that essentially
section 5851 incorporated the registration problem in 5841, by providing
for a punishment for possessing an unregistered firearm.
Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128 (9th Cir. 1995)
In this case the court of appeals upholds the order of a new trial in a
lawsuit over a Thompson Contender pistol that fired and killed its owner
after it was dropped. In the first trial Thompson withheld a video test
of the pistol that showed it firing when it was dropped, as well as
presented perjured testimony about whether the pistol had fired when
dropped in testing. The court decided that Thompson's vice president
and general counsel had breached his duty as an attorney to the court,
and that Thompson should not be able to gain from its deception. In the
first trial the plaintiff's lost.
Quilici v. Morton Grove, 695 F.2d 261 (7th Cir 1982)
As this case came up in the 7/95
MGN Forms column, I decided to add it. It is a challenge to the
1981 Morton Grove ('burb of Chicago), Ill ban on the possession of
live handguns by residents of that town. The court upholds it as
not pre-empted by Ill law (which it clearly was, I strongly agree
with the dissent here), and as not violative of any "fundamental
right" under the Constitution, nor violative of a joke of an Ill
constitution (what happens when you have a modern era
constitutional convention) and of course not violative of any right
under the 2nd amendment, allegedly because the Presser case stands
for the proposition that the second amendment is not binding on the
states (at best the crap the court quotes is dicta, it was totally
irrelevant to the issue at hand in Presser), and because the 2nd
amendment does not protect private possession of handguns. In a
footnote, also dicta, the court indicates it doesn't think handguns
are military weapons. There is a dissent where the judge
correctly, in my opinion, argues that the Morton Grove ordinance is
preempted by a comprehensive state handgun regulation system in
Ill. The dissent also argues there is a fundamental right to
privacy in possessing handgun in the home, which in my opinion is
a pretty stupid argument, one the Supremes or any other court is
unlikely to buy. Despite my thoughts, the Illinois Supreme Court
has also ruled that ordinances like Morton Grove's are not pre-
empted by state law or the state constitution.
Raines v. Colt Industries, Inc., 757 F.Supp. 819 (E.D.Mich 1991)
This is a product liability suit, claiming that the Colt Huntsman pistol
that one druggie shot another with, was defective in that you had to
open the slide to see if it was loaded, and that it did not have a
magazine disconnect safety - it could still fire even if the magazine
was removed. Druggie 1 shot his buddy after removing the magazine,
pointing at his friends head, and pulling the trigger. He said he was
hoping to scare him. The court decided that the firearm was not
defective, in that the friend intentionally operated the gun in the way
it was meant to be operated (including loading the chamber of the gun
from the magazine, before removing it), and that the fact that it could
fire with the magazine removed was not a defect. In other words the gun
worked exactly as intended, and as designed and intended was a
potentially deadly instrument.
Ramsey v. U.S., 329 F.2d 432 (9th Cir. 1964)
In this case the court of appeals tosses out a finding that some
firearms were forfeited to the US, because they were unregistered
NFA firearms. The court decides that there was no proof the guns
were subject to the NFA. The government also did not follow the
requirements of the forfeiture statute.
Rayborn v. U.S., 234 F.2d 368 (6th Cir. 1956)
Reed v. U.S., 401 F.2d 756 (8th Cir. 1968)
In this case the court upholds a conviction for possessing a sawed off
shotgun made in violation of the NFA against a challenge that the
section violates the defendant's right against self incrimination, ll
under the pre-68 NFA. The court noting that the defendant was not
required to provide any information to the government to avoid violating
the section, decides that it does not violate his right against self
incrimination.
Rice v. U.S. Dep't of Alcohol, Tobacco and Firearms, 850 F.Supp. 306 (E.D.Pa. 1994)
This is the district court's decision that was reversed in
by the 3rd circuit, in a case also on the
server. The court
decided that they could only review a decision of ATF, not
their lack of a decision due to a funding constraint from
Congress. They also said the lack of such a remedy to the firearms
disability did not violate the second amendment or the fifth
amendment to the US Constitution.
Rice v. Dep't of Alcohol, Tobacco and Firearms, 68 F.3d 702 (3d Cir. 1995)
In this case a felon sought to have ATF, pursuant to the GCA,
remove his inability to own guns. However, midway though Congress
started passing, and continues to, appropriations bills that prohibit
the agency from spending any federal money to investigate and
act on such petitions. The guy challenges their failure to act,
and his apparent inability to be able to take advantage of the
procedure provided for by law. The court decides that the
appropriations bills do not repeal the section of the GCA providing
for relief from the disability, and that if ATF cannot or will
not act on the petition, the courts can do so, pursuant to a
different section of the GCA. Rice also made a claim that the failure
to provide the relief violated his 2nd amendment rights, but the court
rejected this argument in a two sentence footnote.
Rice v. Paladin Press, 940 F.Supp. 836 (D.Md. 1996)
In this case the trial court dismisses a suit against
the publisher of a book on how to be a hit man, and how
to make silencers, based on the alleged use of the
information in the books to kill three people. The court
decides that the books are protected by the first amendment,
and the fact that the information can be used for criminal
purposes, and is apparently intended at least in part for
a criminal audience, does not strip the books of first
amendment protection. Only incitement to imminent violence,
in this context, is sufficient to strip the book of first
amendment protection.
Rice v. Paladin Enterprises, Inc. - F.3d - (4th Cir. 1997)
Appeals court reversal of above case.
Rich v. U.S., 383 F.Supp 787 (S.D. Ohio 1974)
In this case the court decides that revoking the plaintiff's FFL for
paperwork violations is too harsh, and instead orders ATF to suspend the
license for a period of time.
Richmond Boro Gun Club, Inc., v. City of New York, 896
F.Supp. 276 (E.D.N.Y. 1995)
In this case a gun club, and others, sue the City of
New York over its assault weapon ban. They lose. The
federal district court rejects arguments that it violates
the right to bear arms, that it is superseded by the federal
Civilian Marksmanship Program (DCM deal), or that it
violates due process or other federal rights. The court
applies a rationality test to the law, and finds that it
is fine.
Richmond Boro Gun Club v. City of New York, 97 F.3d 681 (2nd Cir. 1996)
Robbins v. U.S., 476 F.2d 26 (10th Cir. 1973)
In this case a bar owner who made firebombs to put his
competition out of business was convicted of possessing
unregistered and unserialized destructive devices. The court
upheld the conviction bvased on challenges to the submission
of a declaration by a NFA Registry clerk indicating that the
defendant had not registered any NFA weapons. The court said
that while this was not conclusive proof, the jury was allowed
to hear it on the issue of registration.
Rodriguez v. Glock, Inc., 28 F.Supp.2d 1064 (N.D.Ill. 1998)
In this case the court finds that the cause of the injury to Plaintiff's
husband (he was killed by a drunk off-duty cop with his Glock pistol)
was not the lack of a safety on the Glock but rather the struggle
between the decedent, who was a bouncer at a bar, and the drunk police
officer, over the pistol. See
People v. Bedoya, the appeal from the
conviction of the police officer for murder, for more details on his
"night on the town" in Chicago, which resulted in his killing of the
bouncer.
Romero v. U.S., 883 F.Supp. 1076 (W.D.La. 1994)
In this case a sheriff challenges the constitutionality of the Brady law
requirements on chief law enforcement officers. The the court agrees
with the sheriff, and voids the requirement that the sheriff conduct any
sort of background check, but rejects the argument that the sheriff can
challenge the criminal sanctions for violating the Brady act, saying
that representations by the Justice Department that CLEO's won't be
prosecuted for ignoring the statute means they do not have standing to
make the challenge, as there is no real likelihood of prosecution, and
thus there is no actual dispute or controversy.
See also
Mack,
McGee, and
Printz .
R.P.B. Industries, Inc., v. Secretary of Treasury, Case No.
C 82-1149 A (N.D.Ga. July 21, 1982)
In this unpublished case, the district court upholds the ATF decision
reclassifying the RPB open bolt MAC style guns as machine guns, since
they were easily converted to machine guns. The court finds the
decision consistent with the NFA, and within ATF's power. See also
Jersey Arms v. Secretary, and
York v. Secretary.
RSM, Inc. dba Valley Gun of Baltimore, et al., v. Bradley
A. Buckles - F.Supp.2d - (D.Md. 2000)
Russell v. U.S., 306 F.2d 402 (9th Cir. 1962)
In this case the 9th circuit finds that section 5841 of the pre-68 NFA
violates the defendant's rights against self incrimination in that it
punishes a failure to register an NFA weapon a person possesses, while
other parts of the same law punish the possession. It requires the
defendant admit to violating a second law, in other words. Similar
logic to this case was the basis for the Supreme Court agreeing with
this case, and extending it, in Haynes v. US.
In re St. Augustine Gun Works, Inc., 75 B.R. 495 (M.D.Fla 1987)
This is a bankruptcy court case,
about a class 2 that had a claim against it in bankruptcy court
from the ATF, for unpaid SOT, and transfer taxes it was exempt
from as an SOT. The company's main defense was that it owed
nothing on guns it made, as ATF disallowed most of their May, 1986
registrations of similar guns for which ATF was claiming they owed
SOT and or transfer taxes when they were registered before. While
the company agreed the earlier guns were mg's, in their opinion, as
ATF had disallowed the 1986 versions of the guns (apparently M-2
carbines and converted AR's, among other things) they must be
wrong. The court disagreed; saying they accepted the ATF
explanation that the 1986 guns were disallowed because they were
not actually made when the Form 2 was filed, which they need to be.
The earlier guns were in fact made (although who knows when, as
compared to when the Form 2's were filed) thus the SOT and or
transfer tax was due on them. The case has serial numbers for
most/all of the guns made by this company, if you have one of their
products you could learn a little history on your gun. Bottom
line, ATF was added to the list of creditors, to the tune of $15
grand or so.
San Diego County Gun Rights Committee v. Reno, 926 F.Supp. 1415 (S.D.Cal. 1995)
San Diego Gun Rights Committee v. Reno, 98 F.3d 1121 (9th Cir. 1996)
Sanders v. U.S., 441 F.2d 412 (10th Cir. 1971)
In this case the court upholds the defendants conviction for
possessing two unregistered NFA weapons. The defendant first
argued the evidence didn't show he possessed the weapons, and
second that multiple possession of unregistered weapons was
only one offense under the statute, not two separate
offenses. The court rejected both suggestions.
Searcy v. City of Dayton, docket listing
Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994)
This one is a hoot. A cop who was off-
duty went with a buddy to bust up a drug house in his friend's
neighborhood. He brought along a personally owned "MAC-11" machine
gun. His friend brought a shotgun. They went to the house, where
the cop shot one of the drug minions with his mg; his buddy then
shot the other drug pusher with his shotgun. The one shot with the
mg died, and his estate sued the city and police chief. The cop
and friend went to prison. One of the claims for damages was state
law negligence against the police chief for signing the transfer
paperwork for the murder weapon. The court decided that that was
not negligence per-se, nor reckless or wanton conduct. Unless the
plaintiff asserted some connection between the paperwork signature
and the harm (the murder) they were SOL. That is, just signing
the paperwork does not confer any civil liability. Signing for
someone the chief knew to be unstable, or a criminal, could,
conceivably.
Sendra Corp. v. Magaw, 1995 WL 434451 (D.D.C. 1995)
In this brief, unpublished, order, the court refuses a discovery
request by Sendra against ATF in a suit Sendra brought against ATF
for disallowing, as transferrable machine guns, some guns Sendra
made in the days before the 1986 making ban. I have no further info
on the substance, or outcome, of this case.
Sendra Corp. v. Magaw, 111 F.3d 162 (D.C.Cir. 1997)
In this case the court upholds the dismissal of a suit filed
by Sendra against ATF, over the status of a bunch of machine guns
made by Sendra immediately before the making ban in 1986, which ATF
refused to register, claiming they were not done enough to be
"machine guns". The trial court had decided the case on the merits,
finding, apparently, that they items indeed were not machine guns.
The court of appeals decided that the statute of limitations had
run before Sendra filed suit, and so dismissed the case without deciding
whether the items were machine guns or not. Sendra had stalled
filing suit in part because some officers of the company were being
prosecuted for possessing unregistered short barreled rifles, among
other things. See U.S. v. Drasen,
on this web page. See PAWS v. Benson
for a case similar to this.
Service Armament Co. v. U.S., 567 F.2d 377 (Ct.Cl. 1977)
Service Arms Company, Inc., v. U.S., 76 F.R.D. 109 (W.D.Okla. 1977)
In this decision a court denies ATF summary judgment on the issue of
whether the plaintiff's FFL should have not been renewed, based on
alleged wilful violations of the GCA, poor recordkeeping in particular.
The court decides that based on the representations of the plaintiff,
there is additional evidence to hear, and thus refuses to give the U.S.
summary judgment.
Service Arms Company, Inc., v. U.S., 463 F.Supp. 21 (W.D.Okla. 1978)
In this decision the court affirms ATF's decision not to renew the
license of the plaintiff, based on record keeping problems, and failing
to require handgun buyers obtain a permit required by a city ordinance
in the city where the gun shop is located.
Sherwood Int'l Export Corp. v. Higgins, 1986 WL 15702 (D.D.C. 1986)
In this unpublished case, the court decides that, contrary
to the conclusion of the court in the
7 Misc. Firearms case,
a machine gun receiver is a machine gun as defined in the NFA,
even though that isn't what the statute clearly says. This
judge decides that statute is unclear, and therefore decides
what it says based on the legislative history; self serving reports
or debates generated by Congress which purport to explain
what Congress was trying to do with a piece of legislation. The
judge in the 7 Misc. Firearms case
found the statutory definition
to be clear on its face, and required a receiver be possessed
with parts to assemble it, to be a machine gun. However, as that
is apparently not what Congress meant, even though it is what
they wrote, this court chooses to ignore the statute in favor of
committee reports about the statute.
Shipman v. Jennings Firearms, Inc., 791 F.2d 1532 (11th Cir. 1986)
In this case the 11th circuit rejects a suit brought under Florida law,
attempting to hold the maker of a handgun responsible for its criminal
use. This is one in a parade of such suits brought by a Dallas TX
attorney, Windle Turley, who makes a very good living doing personal
injury suits.
Shyda v. Director, Bureau of Alcohol, Tobacco and Firearms,
448 F.Supp. 409 (M.D.Pa. 1977)
In this case the court decides that review of a BATF decision to revoke
an FFL is de novo, that is there is a new trial, if there is any
additional evidence not presented at the administrative revocation
hearing. In this case, as the FFL holder did not have any new evidence,
the court made findings of fact which it said were sufficient to revoke
the FFL, based on poor record keeping after being warned about how to do
it right. However the court withholds a decision on the appropriateness
of revocation for another hearing, and does not decide it in this
decision.
Sipes v. U.S., 321 F.2d 174 (8th Cir. 1963)
This case opinion is by Judge Blackmun, who was later appointed
to be on the Supreme court. Sipes got caught in St. Louis with
a sawed-off single shot .22 Stevens rifle. He said he didn't
know it was an illegal weapon. The court said it didn't matter,
he need not know the gun was illegal, and implicitly rejected the
idea he needed to know it was a sawed off rifle, as opposed to, say,
a regular pistol, which a sawed off rifle can exactly resemble.
The court also opines that a sawed off rifle, like a sawed-off
shotgun has no legal use or purpose. I guess, by implication, neither
to handguns... This is a pre-68 case, and reveals some of the
features of the law the Supremes in the Haynes
case had a problem
with, although this court is quite comfortable with a requirement
the defendant explain his possession, or be convicted. And
with the lack of a requirement of any knowledge that the gun works,
or is a sawed-off rifle.
Sizemore v. U.S., 393 F.2d 656 (8th Cir. 1968)
In this case the court throws out a NFA conviction, based on the
Haynes v. US case. The court finds that there
was not sufficient evidence the
defendant found the gun, which the government argued would make the self
incrimination argument inapplicable to the defendant, since he would not
have transferred or made the sawed off shotgun illegally.
Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984)
In this case a federal court upholds the Chicago ordinance
that both required handgun registration, and refused to register
handguns after a certain date. The court finds that the
law does not violate the equal protection cluse in discriminating
between people who live in Chicago (and thus could register a handgun
there before the cutoff) and those who move there later; as the court
says it is really just a grandfathering, residents of Chicago who
didn't register a handgun are as precluded as folks who move
there later from registering and thus legally owning a handgun. The
court finds that allowing grandfathered guns is a reasonable
action by the city. The court also finds that the law is not
pre-empted, or prohibited by Illinois law or the state constitution,
simiar conclusions the court in the
Morton Grove case reached.
Sonzinsky v. U.S., 86 F.2d 486 (7th Cir. 1936)
Sorenson v. Ferrie, 134 F.3d 325 (5th Cir. 1998)
In this case the 5th circuit throws out a civil rights suit brought by a
woman who was arrested for carrying a weapon illegally by Dallas, Texas,
area police officers. The gun was in her trunk, and they arrested her
for illegally carrying a weapon, on or about her person. While the
court noted that she was apparently arrested by the officers not because
they thought the case would actually be prosecuted, but to punish her
extra-judicially, nonetheless, the court threw out her case, saying that
it is not clearly established under Texas law that carrying a firearm in
the trunk was legal.
Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250 (6th Cir. 1994)
In this case the 6th circuit voided
most of the Columbus, OH AW ban, which was ripped off of the
California ban law, which is the model for many ban laws (Denver's
for example). Columbus subsequently rewrote the law. This case
was not decided on 2nd amendment grounds, but on vagueness grounds
mostly. The court decided the part of the law banning clones of
listed guns was vague, for lack of definition of what guns were
banned. Also the city showed no rational basis for banning the
listed guns, but not others nearly identical. They suggested a
criteria test, not a name list would be acceptable, if the city was
to claim certain features of the guns made them evil. As the
federal AW ban was modeled on the Calif law parts of that are
almost certainly void, and ATF has apparently been ignoring them.
For example the "list" of guns, which is not a list at all. At
least not of semi-auto guns, or guns at all in some cases. The
criteria section of the federal law would probably pass muster
under the standard of this case. The court saw no problem with the
Columbus ban on large capacity magazines.
Stanford v. Lunde Arms Corp., 211 F.2d 464 (9th Cir. 1954)
This case decides whether a certain toy gun is a "firearm" so as to
make it nonmailable, as a handgun, through the US Mail. The gun shot
a single shotgun pellet through a barrel under the force of a cap
as used in a toy cap pistol. The court, after firing it and finding that
it merely produced a feeling like a mosquito bite on the hand said that
it was not a lethal weapon, and it was absurd to apply the law on
mailing handguns to the toy. Note that Warren Burger, later to be chief
justice of the supreme court, and an avid gun-grabber, was the chief lawyer
for the government on the case. He was at it as far back as 1954.
Starks v. U.S., 316 F.2d 45 (9th Cir. 1963)
In this case the 9th circuit rejects the argument that the pre-68 NFA
statute prohibitng posssession of an unregistered gun violates the 5th
amendment rights of the possessor of the gun in the same way that the
9th circuit found the section penalizing non-registration did (in the
Russell case). The court makes a distinction
between possessing an
unregistered gun, even though registration would incriminate the
defendant, and penalizing the non-registration. The supreme court
rejected this sort fo nonsensical distinction in the
Haynes v. US case.
Steele v. NFA Branch, Motion to Dismiss of Federal Defendants,
and Memorandum of Law, Case No. 82-2013-Civ-SMA (S.D. Fla.
December 8, 1982)
Steele v. N.F.A - Steele's Reply to Gov't Motion to Dismiss
Steele v. N.F.A. Branch, No. 82-2013-CIV (S.D.Fla. March
28, 1983), remanded, 755 F.2d 1410 (11th Cir. 1985).
Steele v. NFA Branch, 755 F.2d 1410 (11 Cir. 1985)
This case is one of two cases I am aware of where there was a challenge
to the problems of getting the law enforcement signoff on a transfer to
an individual. Steele was a Dade Cty FL, class 3 (doing business as
"Machinegun Kelly's") who was having trouble getting a signoff for his
customers. Ever since the at least the early 1980's sheriffs and local
police chiefs in Dade, Broward and Palm Beach counties have conspired
together to refuse to provide the signoff for NFA stuff, due to their
personal belief that civilians should not be able to possess such items.
The lower court ruled in his favor, that he ought to be able to do the
transfers w/o it, and the government appealed. The court decided that
there could be a suit by a transferor to compel the transfer w/o the
signoff. But the transferor needed to claim that the transferee was
otherwise eligible to receive the gun (otherwise the court could not
decide if the relief asked for would help, maybe the transferee was a
felon, and the transfer couldn't happen without regard to the signoff)
and Steele didn't. Also Steele didn't exhaust the list of persons ATF
would accept for the certification; he needed to be stonewalled in that
regard also before he could go to court. The court remanded the case to
the trial court for Steele to claim his customer was otherwise eligible
to own the gun. The case appears to have been settled or abandoned at
that point. Steele was a lawyer, but may have run out of money or
patience. One interesting thing is to compare the footnoted text of the
rule that creates the signoff requirement, to the current one. After
this case, where Steele sued a number of federal law enforcement agents,
they apparently asked ATF to remove federal agencies from the list of
acceptable persons. And now only state and local agencies are listed in
the regulation. See
Westfall v. Miller for a similar case
Steele v. NFA Branch, Case No. 82-2013 (December 6, 1985),
aff'd w/o opinion, No. 86-5004 (11th Cir. December 17, 1986)
Stein's, Inc., v. Blumenthal, 649 F.2d 463 (7th Cir. 1980)
In this case the 7th circuit rejects an appeal of a decision upholding
ATF's decision to not renew the plaintiff's FFL, due to recordkeeping
violations. The court decides that the decision not to renew was fine.
Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971)
S.W. Daniel, Inc., v. U.S., 831 F.2d 253 (11th Cir. 1987)
This is where SWD, after ATF re-interpreted
the definition of machine gun to include open bolt semi-autos
cooked up a gun (the SSM11A1) to mess with ATF. It is the same
open bolt semi-auto, with a plate welded in the receiver, over the
opening in the handle/mag well, at the top, making it into an open
bolt, single shot gun. ATF decides that is an MG. SWD takes them
to court, and loses. In this case the court re-writes the language
of the law defining mg's in the NFA to preclude the result about
receivers that the 7 Misc. Firearms court reached. Then they
ignore the criteria that the gun must shoot, be designed to shoot,
or readily restored to shoot more than one shot. Even though it
is a single shot, and is NOT easily restored (or modified, ATF
thinks they are interchangeable, although they are not) to shoot as
a mg, the court refuses to look at the issue at all, and disposes
of the whole case in less than two printed pages. This is a good
example of the more recent judicial thinking on guns; they are
evil, we won't interfere with governmental attempts to regulate or
ban them. I am informed some of these "SSM11A1" marked guns are
now registered, pre-86 M11A1 SMG's.
T.T. Salvage Auction Co., Inc., v. Secretary of the Department of the Treasury,
859 F.Supp. 977 (E.D.N.C. 1994)
In this case the court grants summary judgment on the plainitff's
appeal of ATF's revocation of its FFL, for wilfull violations
of the Gun Control Act. The court decides that ATF has shown wilfull
violations, and that the plaintiff has no defense, and therefore
summary judgment is appropriate. The interesting part of
this case (aside from all the cites to other appeals of ATF revocation
appeals) is that the court says that a wilfull violation can be
a knowing violation of the rules, or when a licensee knows about
the rules, "was indifferent" to them. Knowledge of the rules in this
case was shown by the licensee having a copy of the Red Book, and
having been lectured on the rules by ATF personnel after violations
turned up on a prior compliance inspection.
U.S. v. Tait, 54 F.Supp.2d 1100 (S.D.Ala. 1999)
Taylor v. U.S., 333 F.2d 721 (10th Cir. 1964)
In this case the court upholds a conviction for possessing a weapon made
or transferred in violation of the pre-68 NFA, deciding that the
government need not show the defendant is the one who made the weapon.
As the government need not show the defendant made the weapon, there is
no problem with self incrimination, since there was no registration or
non-registration element to this offense.
Thompson/Center Arms v. U.S., 924 F.2d 1041 (Fed.Cir. 1991)
In this case the court of appeals decides that Thompson/Center's
kit consisting of a Contender frame a barrel less than 16 inches,
a buttstock and a barrel more than 16 inches is not a short barreled
rifle as covered by the NFA, unless it is actually assembled into
a short rifle. The feds appealed to the Supreme Court, in
T/C v. U.S.,
and the Supreme court agreed with this case as to the item
in question, but expressly rejected the idea expressed in this case
that the rifle must be assembled to be covered, and decided that a
set of parts that could only be assembled into a short rifle was also
covered by the NFA. Since the T/C kit could be assembled into
legal firearm(s), it was fine.
Treadway v. Smith & Wesson Corp., 950 F.Supp. 1326 (E.D.Mich 1996)
Turner v. U.S., 707 F. Supp. 201 (W.D.N.C. 1989)
This is an odd one. A FFL bought a few pre-ban AK's
and two of them were converted into machine guns. Apparently one
of them was used in a crime, and the dealer surrendered one
converted gun to the cops, and got prosecuted. But the deal was
that the surrendered guns both had the auto-sear hole drilled in
them, but otherwise had semi parts installed. One of them was
turned into the cops by a co-defendant, and later the cops found a
conversion kit (ie a full auto internal parts set) at his house,
and he apparently admitted he had converted and then de-converted
the gun. However Turner's gun also had the sear hole drilled, and
an ATF drone testified from looking at it it had also had full auto
parts installed, but apparently they didn't find the parts on
Turner. Turner pled guilty; then got a clue and tried to overturn
his conviction, claiming merely drilling the hole was not making a
machine gun. The court kicks the decision to a magistrate, who
decides that the hole drilling can be making a machine gun within
the statute; given that is "altering" the gun, and given the ATF
expert testimony that the hole was made, given its location, to
install full auto parts, and that the gun had in fact had full auto
parts installed. Thus the court suggests, but doesn't really have
to decide if merely drilling the hole is making an mg, as Dan Shea
claims ATF believes, on guns that use a sear pin, like the M-16 and
AK. Turner's real problem was that he copped a plea, and let the
ATF put on the record, without any fight, the fact that the hole
drilling was to make a machine gun, and that the gun had had full
auto parts installed. Heck, he shoulda thrown the gun into the
woods, not turned it over to the cops himself. Now he's a felon,
can't own guns, forget about deal in them.