Federal Bureau of Investigation Sued for Denying Americans’ Right to Bear Arms
The Federal Bureau of Investigation (FBI) and the Attorney General, et al. have been served with a lawsuit according to a press release dated June 5th, 2018. The lawsuit alleges that the FBI actively refused to process background check appeals for National Instant Criminal Background Check System(NICS) denials during 2016. This was only recently discovered through a freedom of information act request that uncovered this unconstitutional denial of due process.
“The Defendants and FBI in particular, is improperly shifting their burden to the individual to follow up with various courts or jurisdictions,” the press release explains. The government is basically using its vast and overwhelming power to discourage Americans from appealing the government’s errors when they attempt to claim their Second Amendment rights.
“This has been an ongoing issue with Defendants … [who were] improperly shifting the burden.” Numerous prior cases have been filed in various courts since 2016. “It is appalling that Americans should have to hire an attorney, go to court, and obtain a judgment to exercise a fundamental constitutional right” says Richard Hayes Independent Program Attorney with U.S. LawShield.
We can only hope that the FBI steps up their act and starts taking American’s civil rights, including the right to bear arms and the right to due process, much more seriously in the future.
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A literal reading of Oklahoma’s Stand Your Ground law reveals that a person has no duty to retreat and that they may meet force with force, including deadly force, when confronted by a threat of death or grievous bodily injury, and that they can protect themselves with deadly force if they believe that their own lives are in jeopardy. It is part of the Oklahoma Firearms Act of 1971 and amplified in 21 O.S. 1289.25 of state statutes. However, in a recent decision, the Court of Criminal Appeals says that a literal reading of the law is wrong and that there is no absolute immunity in Oklahoma.
On August 28, 2017, the Georgia Supreme Court addressed the issue of “zero tolerance” for fighting in schools in the Peach Tree State in the case Henry County Board of Education v. S.G., No. S16G1700. The issue is the justification of self-defense in a school disciplinary action.
Back in 2014, a young high school student, (S.G.), was expelled for fighting in what witnesses and a video of the incident indicated her actions were in self-defense. But the school, like so many schools, has a zero-tolerance policy when it comes to fighting. Zero tolerance means “no excuse” and automatic expulsion for violating such a policy.
IS ZERO-TOLERANCE UNLAWFUL?
The GA Supreme Court reasoned that “blind enforcement of zero tolerance fighting policies” are unlawful since they do not consider self-defense as a justification for the conduct. The Supreme Court noted that it is not illegal to fight under Georgia state law as long as it is done in self-defense. That same law applies even in schools, the Court stated.
Specifically, Georgia Code § 16-3-21 provides you are justified in using force against another person when you reasonably believe force is necessary to defend yourself against that person’s use of unlawful force against you.
The statute goes on to state that any rule or policy of any state or county agency (including school districts) that conflicts with the law is unenforceable and void. The decision of the Court put all Georgia schools on notice with regards to enforcement of their own zero-tolerance policies.
SELF-DEFENSE: Burden of Proof
The claim of self-defense is an affirmative defense to a civil claim or criminal charge. That means that the defendant must raise the issue by presenting a new fact that defeats the charge or claim even if the facts supporting the charge or claim are true.
In a criminal setting, the burden of proof falls upon the prosecutor to overcome or refute the defendant’s claim that his action was done in self-defense. However, in a civil matter, the burden of proof falls upon the person asserting self-defense to establish facts in support of the claim.
In this particular case, the Supreme Court ruled that school disciplinary matters are civil in nature and not criminal. Therefore, the burden falls upon the student to present evidence that their conduct was done in self-defense and school districts must now permit such a defense be asserted by the student.
The case has been remanded back to the Henry County School Board of Education for reconsideration, allowing S.G. to present evidence in support of her claim of justified use of force in self-defense. Even though S.G. has already graduated, she is seeking to have her academic disciplinary record expunged.
KNOWLEDGE IS POWER
Understanding your rights and when you are justified in using force or even deadly force is complex. It is critical that you have an understanding of the laws of self-defense.
You can learn more about the laws of self-defense by attending a workshop or seminar and hear from experienced U.S. & Texas LawShield® Independent Program Attorneys as they explain the law and answer your questions.
A Miami-area Uber driver has sued the popular ride-share company claiming its firearms policy violates his right to self-defense under Florida law.
Jose Mejia, 28, is a concealed-carry license holder who became an Uber driver in March 2016. But in 2015, the company banned guns in cars after an Uber driver shot and wounded a gunman attacking people in the Logan Square neighborhood of Chicago’s north side.
“My rights are being infringed on because I’m not able to lawfully carry my firearm,” Mejia told Miami’s Channel 10 News.
“I’m not able to protect myself or defend myself,” added the part-time student. “And remember we have regular cars—there’s not a divider between us and the passenger or nothing of that nature.”
The complaint didn’t list other members of the class-action lawsuit, but the document suggests tremendous growth potential. Uber says it’s now in 633 U.S. cities.
“While the exact number of members of the Class is unknown to Plaintiff (Mejia) at this time, based on the nature of the trade and commerce involved, Plaintiff reasonably believes that there are thousands of members in the Class,” the lawyers said in the complaint.
News outlets have asked Uber for comment about the lawsuit, but the company declined.
Uber and guns
San Francisco-based Uber transformed the vehicle-for-hire industry in 2009 with its ride-sharing smartphone app.
The mobile technology connects riders seeking better convenience and customer service with independent drivers trying to turn their cars into cash-generating machines.
State prosecutors said Hendricks faced no charges because he was licensed to carry and acted in self-defense. The gunman, Everardo Custodio, pleaded guilty to weapons charges and went to prison.
The incident became a national story and, two months later, Uber issued a new policy.
According to the company’s website, “Our goal is to ensure that everyone has a safe and reliable ride. That’s why Uber prohibits riders and drivers from carrying firearms of any kind in a vehicle while using our app. Anyone who violates this policy may lose access to Uber.”
Florida self-defense law for cars
David Katz, an Independent Program Attorney for U.S. LawShield®, reviewed the class-action complaint. Katz said Mejia’s lawyers based the case on a self-defense law passed by the Legislature in 2008.
“The law’s ‘Legislative Intent’ affirms that people have—and I quote—a ‘constitutional right to keep and bear arms,’ and that ‘these rights are not abrogated by virtue of a citizen becoming a customer, employee, or invitee of a business entity.’”
Driver acted in self-defense
Mejia reminded Channel 10 about an incident last December when an Uber driver killed another man in self-defense in Aventura, about 18 miles north of Miami.
“Imagine,” he told Channel 10, “if he had not had his weapon—he wouldn’t be alive today, the passenger wouldn’t be alive today and then what’s Uber going to do? Issue a statement of apologies, and that’s it?
“What about his family?”
—By Bill Miller, Contributor, U.S. & Texas LawShield® Blog
It would be a difficult to justify suing a car dealer who sold a vehicle to someone who then intentionally used it to cause harm or death. But if the product is a gun, some believe that the manufacturer or dealer should be liable for users’ deliberate violence.
In 2012, Jessica Ghawi was shot and killed along with 11 others in an Aurora, Colo., movie theatre. The Patriot Post reports that Ghawi’s grieving parents were encouraged by the Brady Campaign To Prevent Gun Violence to launch a hopeless lawsuit against gun store Lucky Gunner and others who lawfully sold items used in the shooting.
Denver-based U.S. LawShield Independent Program Attorney Doug Richards said, “The Protection of Lawful Commerce in Arms Act specifically protects lawful firearms manufacturers and dealers from being held responsible for the criminal actions of a third party.”
Richards added, “In his decision, Senior District Judge Richard P. Matsch not only dismissed the suit, but ruled ‘Pursuant to C.R.S. §13-21-504.5, defendants Lucky Gunner and the Sportsman’s Guide are entitled to an award of reasonable attorney fees and costs to be determined after filing motions pursuant to D.C.Colo.L.Civ.R.54.3.’”
The fight’s not over yet, however. Lucky Gunner reports “The Brady Center predictably appealed the judge’s ruling and we are prepared to continue defending your rights and ours. While it is not yet clear when the $111,971.10 fee reimbursement will be paid, we are going to donate 100% of what is recovered to groups that support and defend the 2nd Amendment. We will fight to recover these funds from the Brady Center and to hold the Brady Center responsible for yet another frivolous lawsuit.”
Lucky Gunner ran an online poll to determine which groups would receive the funds.
“In short,” Richards said, “Judge Matsch ordered that the Plaintiff pay more than $110,000 in fees.”
In a 3-0 ruling, the 9th Circuit Court of Appeals upheld a federal ban on the sale of guns to medical marijuana cardholders.
According to an AP report, the lawsuit was filed by S. Rowan Wilson of Nevada. Wilson tried to buy a firearm for self defense in 2011, but was denied the purchase by the gun store, citing the line on Form 4473 preventing the sale of firearms to illegal drug users.
While marijuana use is legalized in some states, its use remains illegal under federal law.
Wilson claims she doesn’t actually use medical marijuana, but obtained a prescription to show support for its legalization. In an open letter from Athur Herbert, BATFE Assistant Director of Enforcement Programs and Services, he issued guidelines to FFL holders stating that “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition.”
Wilson’s attorney, Chaz Rainey, plans to appeal the decision. Appeal options include the same panel of judges, a larger panel of the circuit court, or the U.S. Supreme Court.
The 9th Circuit Court is a large court, hearing approximately 12,000 appeals a year. Efforts to break up the court include the Judicial Administration and Improvement Act of 2017, which would create a new 12th Circuit Court of Appeals covering Alaska, Arizona, Idaho, Montana, Nevada, and Washington state. The states remaining in the new 9th Circuit would include California, Oregon, Hawaii, and the territories of both Guam and the Northern Mariana Islands.
Do you have questions about whether your gun ownership rights are affected by a medical condition that is being treated with marijuana, and you’d like to find out what steps, if any, you can take to restore your gun rights? If so, call the Non-Emergency number on the front of your Membership card and talk to an attorney about your specific situation. Or join us at a Gun Law Seminar and ask one of our Independent Program Attorneys for guidance. Click here to see a listing of seminars available across the country.
“In fact, the Amendment’s core at a minimum shields the typically situated citizen’s ability to carry common arms generally,” wrote Judge Thomas B. Griffith in the ruling on the case Wrennv. District of Columbia.
Subsequently, the appeals court instructed lower courts to block the D.C. law with permanent injunctions. City officials indicated they’re exploring an appeal, while gun-control groups claim the ruling shrinks public safety in the nation’s capital.
D.C. gun laws are among the strictest in the U.S., but they’ve also faced several legal challenges in the last few years, said Kirk Evans, President of U.S. & Texas LawShield®.
Gottlieb added, “We are particularly pleased that the opinion makes it clear that the Second Amendment’s core generally covers carrying in public for self-defense.”
In the days after the ruling it was too early to tell how far the case would rise through the appeals process. The Supreme Court in June declined to consider another Second Amendment case, Peruta v. California, in which the 9th U.S. Circuit Court of Appeals agreed with a San Diego County law requiring gun owners to prove they have “good cause” to apply for concealed carry permits.
But Gottlieb said the latest victory in D.C. spurs confidence among Second Amendment advocates.
“To say we are delighted with the ruling would be an understatement,” Gottlieb said. “We are simply more encouraged to keep fighting, winning firearms freedom one lawsuit at a time.” — Bill Miller, Contributor, U.S. & Texas LawShield blog
David Katz, an independent program lawyer for U.S. Law Shield of Florida, explained that Rutherford sought the Stand Your Ground immunity. But, Katz added, Hirsch asserted in his 14-page order that the state’s constitution empowers the Legislature to make “substantive” laws such as the laws against criminal activity and their corresponding punishments.
Katz said the judge believes the constitution says the rules for court procedures are “procedural” and it’s up to the Florida Supreme Court to decide those, not the Legislature.
The judge wrote, “Because questions of burden of proof are procedural rather than substantive, however, I necessarily find the demised legislative changes to be unconstitutional.”
Katz said the judge’s order and the law itself face more battles in the state’s appellate courts and the Florida Supreme Court.
Katz also told us that “it is important to realize that Judge Hirsch’s ruling only has effect in his courtroom. Although some Judges may look at is as persuasive, it is not binding in any Courtroom but Hirsch’s. In effect, other Judges in the same courthouse have disagreed with Hirsch’s ruling and given the new law full effect in their courtroom.”
A spokesman for the governor said “the office is studying Hirsch’s ruling,” Further, a spokeswoman for Attorney General Pam Bondi said that her “office is getting ready to appeal the order.”
The Stand Your Ground law in Florida states that a person is not obliged to retreat in the face of danger and can use deadly force as self-defense. It became law in 2005; seven years later, George Zimmerman used the defense to get an acquittal in the shooting death of Trayvon Martin.
Critics say the law could cause more violence with a “shoot first” way of thinking among Floridians who choose to arm themselves for self-defense.
But prosecutors especially didn’t like the pre-trial burden of proof placed on them because they had to show clear and convincing evidence that someone did not act in self-defense. They said the rule essentially forces them to try a case twice: once at the self-defense hearing, and again at the actual trial.
Supporters praised the bill’s signing. They said that the burden of proof is always on the state in criminal proceedings, and a pre-trail hearing should be no different.
Three University of Texas at Austin professors seeking to overturn the state’s 2015 campus carry law have had their lawsuit dismissed by a federal judge.
The law allows licensed-to-carry individuals to carry concealed handguns inside most public university buildings. Campus carry became law in 2015 and went into effect on Aug. 1, 2016.
The professors bringing the lawsuit were Drs. Jennifer Lynn Glass, Lisa Moore, and Mia Carter.
In his decision, District Judge Lee Yeakel wrote that the faculty members didn’t present any “concrete evidence to substantiate their fears” that campus carry would have a chilling effect on free speech, said Emily Taylor, an Independent Program Attorney for Texas Law Shield and a partner in the Houston-based law firm of Walker & Taylor.
Texas Attorney General Ken Paxton, whose office defended the state in the case, praised the decision. “The court’s ruling is the correct outcome. The fact that a small group of professors dislike a law and speculate about a ‘chilling effect’ is hardly a valid basis to set the law aside,” Paxton said.
In the lawsuit, Taylor said the faculty members sought “to at least retain the option of maintaining their academic classrooms as gun-free zones.” The suit also complained about UT-Austin’s President Gregory L. Fenves, whose “insufficiently protective policies,” along with the “overly-solicitous, dangerously-experimental gun policies of the Texas Legislature” supposedly put them at risk.
Taylor added, “The professors claimed that the law violated their First Amendment rights. They said that because a gun might be in their classrooms, it might make them hesitant to discuss controversial issues.”
In dismissing the suit, Yeakel wrote, the professors didn’t have standing to sue:
“Plaintiffs in this case do not challenge a direct regulation or restriction on speech. Plaintiffs allege that ‘classroom discussion will be narrowed, truncated, cut back, cut off’ by the allowance of guns in the classroom. One professor avers in an affidavit that the ‘possibility of the presence of concealed weapons in a classroom impedes my and other professors’ ability to create a daring, intellectually active, mutually supportive, and engaged community of thinkers.’ Plaintiffs do not specify a subject matter or point of view they feel they must eschew as a result of the Campus Carry Law and Campus Carry Policy, or point to a specific harm they have suffered or will suffer as a result of the law and policy. Rather, the chilling effect appears to arise from Plaintiffs’ subjective belief that a person may be more likely to cause harm to a professor or student as a result of the law and policy.”
Taylor said the teachers have 28 days from July 6 to ask Judge Yeakel for clarification and 30 days to file an appeal to the U.S. 5th Circuit Court of Appeals.
Neil Gorsuch, recent appointee to the United States Supreme Court, advocated for 2nd Amendment gun rights in joining Justice Thomas’ dissent to the Court’s majority decision to deny review of the Ninth Circuit, Court of Appeals, decision in Peruta v. California. In that written opinion, the Ninth Circuit declared there to be no Second Amendment right to carry a concealed firearm in public. (See related story here.) Gorsuch and Thomas both declared this issue to be “one of national importance” and asserted no reason to wait for another case to review this issue.
Further, Gorsuch and Thomas went beyond criticizing the Court’s denial of certiorari, suggesting the Second Amendment protects the right to carry firearms in public but are careful not to tip their hand regarding whether there is a specific constitutional right to conceal carry. In the written dissent, the Justices go on to quote numerous cases that conclude the Second Amendment protects the right to carry firearms in public in some fashion. Gorsuch and Thomas further cement this opinion and point the Supreme Court’s definition in Heller that states to bear arms means to “wear, bear or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” Gorsuch and Thomas conclude “[t]he most natural reading of this definition encompasses public carry” and “…find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”
One thing is clear, by joining Justice Thomas’ dissent in this case, Gorsuch believes in a Second Amendment right to carry a firearm for the purpose of self-defense at home and in public. Gorsuch and Thomas conclude their dissent by stating “…[T]he Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.”
Despite, the Supreme Court’s reluctance to review constitutional issues relating to gun rights, gun owners may have found a conservative Second Amendment advocate in the recent appointment of Neil Gorsuch to the Supreme Court of the United States. —Douglas I. Richards, U.S. Law Shield of Colorado Independent Program Attorney,Richards Carrington, LLC