• Everything in this article that is not a quote is my understanding. I AM NOT A LAWYER so the odds of me getting something wrong is non-zero.

    In Boland v. Bonta: Another District Court Win “UHA” I quoted and wrote.

    FOURTH AFFIRMATIVE DEFENSE
    The Complaint, and every cause of action therein, is barred by the equitable doctrines of estoppel, laches, unclean hands, and/or waiver.
    — Answer to Amended Complaint at P 16

    I should have spent some more time figuring out what this all means.

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  • It was great to see so many of you have been advocates for the Second Amendment. More of you have testified than I expected to see.

    Thanks to all of you that fight the good fight.

    We had a couple of articles this week that were not authored by your normal hosts. Thank you to SkinnedKnuckles for his article about working to get an actual firearm safety program started in the local school system.

    The other outside article was the blurb from Michel Associates, PC. That was more interesting to me. I had reached out to the helpdesk at the firm and expected to end up communicating with some public relations person. To have the first response come from the senior partner was shocking to me.

    Is it of interest to you to get short articles about groups and firms that are fighting for the Second?

    The Second Circuit court hard oral arguments on 5 Second Amendment cases on Monday. We are now in a wait and see holding pattern. We can make a couple of different assumptions about the judges, they could all be anti-gun, they could all be pro-gun, they could just be ignorant, or they could just be following the law.

    If they are anti-gun they are going to ask if it is in the best interest of the infringers to find for the state or the plaintiffs. If they find for the state the plaintiffs will appeal to the Supreme Court and that would be bad for gun rights infringers. If they find for the plaintiffs the state might not appeal but might instead change the law to require a relitigation.

    If they are anti-gun rights I can almost bet that it will take a long time for them to reach an opinion.

    If they are pro-gun or just following the law they will find for the plaintiffs and the state will have to decide if they want to play in the Supreme Court, again, after just being slapped down in Bruen.

    If they are ignorant, we are going to end up with case law that is going to be hard to deal with. This might be the worse case.

    Thank you once again to all of our readers and thank you to all the people that found the article like button.

            

  • We are the children of the “right now” age. I am old. I remember my mother going to the Grayhound bus depot and paying them to deliver two huge boxes to her hometown in the midwest. This was the only way to get a package that big that far in a reasonable amount of time.

    Reasonable amount of time? About a week or so. At which point my grandparents would go to the bus depot to get pick up the packages.

    When I was a child working on motorcycles I would create a parts list and then once a month we would go into the big city and I could purchase parts at the motorcycle dealership(s).

    We would dig through our Scholastic book pamphlet and pick out the books we wanted. Three or four weeks later our books would arrive. We’d look though the Sear’s catalog and place an order. A few weeks later it would arrive.

    The other day I needed replacement “Plackers”. I spent less than two minutes online to locate what I wanted, purchased more for much less than I could locally and they were delivered as soon as we had cleared our driveway.

    Everything today happens quickly. I can send an email around the world in less time than it takes to print that same letter. I can have a response back before I close my email program.

    My introduction to The Internet was when I noticed that if we dropped UUCP messages in one node in Michigan it would show up in California with a timestamp only seconds different than the arrival time.

    We are spoiled. Everything should be moving as fast as online shopping and online communications.

    Not everything is fast

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  • The following is taken from an announcement from the SAF
    H/T to B.Zh

    SAF SCHOLAR TO TESTIFY BEFORE CONGRESS THURSDAY ABOUT ATF ABUSES

    When the House Committee on Oversight and Accountability convenes Thursday to discuss alleged abuses by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), one of the people offering testimony will be attorney Matthew Larosiere, who serves as an adjunct scholar of law and policy for the Second Amendment Foundation.

    The hearing may be watched here, beginning at 10 a.m. (EDT) / 7 a.m. (PDT) Thursday. It is headlined, “ATF’s Assault on the Second Amendment: When is Enough Enough?”

    “We’re proud to have Matt offering insight to the House committee,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Under Joe Biden, the ATF has been weaponized against law-abiding citizens, and his new budget proposal includes $1.9 billion for the agency to expand operations and increase regulation of the firearms industry.”

    Larosiere will offer testimony regarding the threat ATF’s overreach poses to the American people. He will also focus on the ATF’s dramatic change in policy about pistol stabilizing braces, owned by countless law-abiding citizens including many disabled military veterans who have suddenly found themselves facing possible legal action for owning a shooting accessory, which is not a firearm, that the agency previously said was perfectly acceptable.

    “ATF has been known for its institutional abuse of power throughout history,” said SAF Executive Director Adam Kraut. “Now, more than ever, the agency is being weaponized as a means to punish peaceable gun owners and drive small businesses out of the marketplace by inventing creative statutory interpretations surpassing the agency’s authority and scrutinizing federal firearms licensees every actions in a ‘gotcha’ manner.

    “With the directives from the Biden Administration,” Kraut added, “a simple mistake such as transposing a digit or placing required information in the wrong field results in license revocation, rather than a warning, under the guise of a ‘willful violation’ of the Gun Control Act. This overbearing approach does nothing to support the government’s interest in compliance and destroys livelihoods over innocent mistakes.”

    “Clearly,” Gottlieb said, “President Biden and Capitol Hill Democrats have decided American gun owners are their enemy. They are scrambling to restrict the Second Amendment rights of tens of millions of citizens, and create problems for the firearms industry, and they’ve unleashed the ATF to make it all happen.”

            

  • I reached out to Michael & Associates, PC for a short write up about their firm. They have been doing great work for the Second Amendment community for years. They are based out of California.

    Thank you very much for their hard work supporting the Second Amendment.

    This is what they sent:


    Michel & Associates, PC is one of the nation’s most recognized and well-respected firearms law firms. Our attorneys are among the world’s most experienced successful Second Amendment advocates. Our extensive firearms law and litigation experience enables us to address increasingly complex issues to help our clients. Our attorneys have expertise in the mandates of federal and state firearm laws and regulations. We wrote the book on gun law in California: California Gun Laws, A Guide to State and Federal Firearms Regulations (www.calgunlawsbook.com).

    Michel & Associates’ attorneys appear at agency and legislative rule-making proceedings that impact firearms owners’ interests, assist in drafting firearms legislation, represent clients in firearm licensing matters, represent firearms manufacturers, wholesalers, and retailers in product liability litigation, defend against firearms-related criminal charges, and challenge ill-conceived or unconstitutional state laws and local ordinances in court.

    We advise manufacturers, wholesalers, retailers, clubs, ranges, and firearm owners on regulatory compliance requirements, defend against criminal or government agency regulatory enforcement actions, and represent various clients challenging gun control laws on Second Amendment and related grounds.

    Our clients include non-profit associations, industry trade associations, gun show promoters, firearm importers, manufacturers, distributors, and retail dealers, indoor and outdoor shooting ranges, law enforcement agencies and officers, special-effects companies, prop houses, armories, pyrotechnicians, and individuals and companies facing firearms-related federal or state licensing and compliance issues or criminal charges.

    Michel & Associates has challenged dozens of laws and regulations on Second Amendment grounds. Litigation and test cases moving through the courts today will establish the parameters of the right to keep and bear arms for future generations. We are proud to be on the front lines of the self-defense civil rights battle.

    Update

    CRPA Is the primary client and founder of our 2A litigation.
    — C.D. Michel – Private email

    Please go visit the California Rifle and Pistol Association. Give them some love for all they are doing for the Second Amendment community.

            


  • B.L.U.F. A big win out in California where parts of the Unsafe Handgun Act were enjoined. If this injunction stand it is possible that new handguns will be added to the California Roster for the first time since 2013. Side note, the say that there are some 800 handguns on the roster, this is misleading. A firearm can be on the roster multiple times because each sku is considered a different handgun. I.e. a changing the finish of a handgun makes it a different handgun in the eyes of the state.

    The Question

    On 2022-08-01 the plaintiffs(good guys) filed a Complaint for Declaratory and Injunctive Relief in the Federal District Court of Central California. The complaint asks does the California Unsafe Handgun Act (UHA) violate the Second Amendment by denying The People of California access to new firearms in common use throughout the country? and does the UHA violate the Commerce Clause by interfering in interstate economic activities?

    Or as the plaintiffs put it:

    Here, Plaintiffs present a question very close to the question posed to the Supreme Court in Heller: what is the scope of the government’s ability to regulate the possession of handguns—the “quintessential” choice—for self-defense? More specifically, does the Second Amendment allow the state to significantly restrict the specific models of the “quintessential self-defense” weapon available to eligible citizens (i.e., the handgun)?
    — Boland v. Bonta — Complaint for Declaratory and Injunctive Relief at ¶ 73

    and:

    California’s UHA both unduly burdens and discriminates against interstate commerce because it allows intrastate private party transfer of an Off-Roster handgun but prohibits an out of state private party possessor of an Off-Roster handgun from transferring that firearm into the state to a California resident who wants to acquire it.
    — Id. at ¶ 81

    On 2022-09-22 the parties agreed to drop the second question regarding discrimination against interstate commerce.

    The defendant response consists of nearly 18 pages of the Attorney General denies each and every allegation unless they are admitting to a statement of law. In that case he still denies each and every allegation and denies even the quoted regulation if it is misstated. For other paragraphs he says he just doesn’t know.

    In short the AG’s answer is “Nope.”

    The state then claims affirmative defenses. An affirmative defense is when the other party is required to prove. The first is that the state claims that the plaintiffs failed to state facts sufficient to bring action against the state. Given that the state denies all the allegations this makes sense.

    Then there is that old bugaboo. They claim that the plaintiffs lack standing and if they did they there are adequate remedies within the law for their complaint.

    FOURTH AFFIRMATIVE DEFENSE
    The Complaint, and every cause of action therein, is barred by the equitable doctrines of estoppel, laches, unclean hands, and/or waiver.
    — Answer to Amended Complaint at P 16

    The Stages

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  • In 1609 a bunch of settlers were given land taken from the natives. The settlers were of a different culture and more importantly of different religious backgrounds. While both the natives and the settlers claimed to worship the same God they had a different “chain of command” to get to God.

    This lead to conflicts.

    The conflicts continued at a sort of low level until 1798 when the natives rose up in rebellion. The settlers called on the home state for help and the home state sent the military to put down the up rising. The military of the settlers as reinforced by the home state squashed the insurrection but did nothing to stop the on going conflicts.

    The natives continued to agitate to remove the settlers with violence erupting with regularity.

    In 1912 the natives had made significant headway back in the home state and it was looking as if they might regain control of their own lands. In response the settlers formed paramilitary groups to fight against the natives taking control. They were prepared to do battle over their holdings, some of which went back 300 years to that 1609 date.

    WWI interrupted the situation but after the war the country split, the northern part going to the settlers and the southern part to the natives. This created even more conflict.

    There was another uprising and the native survivors of that uprising fumed over their loss with growing resentment.

    In the meantime Communism was making its way as if a disease throughout the world. The losing natives, in their resentment, adopted a Socialist viewpoint.

    Tensions continued to mount breaking out in the late 1960s to open gorilla warfare. Assisted by Muammar Gaddafi and other nasty groups they received arms and explosives.

    For over 30 years this war went on. At the end of the war the natives disarmed turning in the following:

    • 1,000 rifles
    • 2 tons of Semtex plastic explosive
    • 20-30 heavy machine guns
    • 7 surface-to-air missiles
    • 7 flamethrowers
    • 1,200 detonators
    • 11 rocket-propelled grenade launchers
    • 90 handguns
    • 100+ hand grenades

    Wikipedia

    During this war the natives had somewhere between 8,000 and 10,000 people actively involved. The settlers estimated that at the start of war the natives had around 500 full time volunteers with natives claiming around 1,200.

    At the end of the conflict the were around 600-700 active members of the native fighting group.

    Support of the native terrorists was high through out the world. Many felt a cultural connection back to their native land and sympathy for the natives as the home state of the settlers wasn’t known for being all that benign.

    For us an important piece of information is just how small the active resistance force was and how weekly armed they were. When some politician claims that they could stomp out gun ownership they need only look at these number to realize how wrong they would be. It is estimated that around 40% of the population of that northern state were directly or indirectly adversely affected by the conflict

    Of course there were songs created:


            

  • Having finished Soukaneh v. Andrzejewski: CT Is a Gun Probable Cause for a Search? I had a long think as to what the Second Amendment implications were. It doesn’t seem to directly relate to Second Amendment issues.

    First we have a situation where a cops qualified immunity was stripped from him at the district court level. This is huge. It happens so seldom as to make the news almost every time it happens. Second it is a balancing question regarding “officer safety” v. our right to be left alone.

    The controlling case law seems to be Terry v. Ohio, 392 US 1 – Supreme Court 1968.

    In an 8-to-1 decision, the Court held that the search undertaken by the officer was reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a “hunch” and that “a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior.” The Court found that the searches undertaken were limited in scope and designed to protect the officer’s safety incident to the investigation.
    — Terry v. Ohio – Oyez

    The gist of a “Terry Stop” is that upon reasonable suspicion(Note that this might not be the correct term, IANAL) an officer of the law can stop and briefly detain and frisk a person looking for weapons, “for officer safety”.

    The courts, over time, have established pretty good case law in regards to Terry Stops. It is clear that the “frisk” can not be intrusive. For example, an officer can not remove your wallet from you and remove your ID from that wallet during a “frisk”. If the officer does detect a weapon during the frisk they can do other things for officer safety.

    The question in this case was would a reasonably prudent man have been warranted in believing that the plaintiff (good guy) was armed and presented a threat to the officer’s safety. Id. quoting Terry

    In my state and most reasonable states a person who is friendly and present a permit to carry is assumed to be on the “right side of the law.” The possession of the firearm is a normal thing. If there is no other interaction that should be enough to remove presented a threat to the officer’s safety Id. from the equation.

    In this case the officer admits he went past the bounds of a Terry Stop. He argues that because he hadn’t verified the permit that he was justified in assuming that the firearm was illegally possessed in a car and that allowed him to continue his warrantless search.

    Post Bruen we should be seeing more permits issued and more people legally carrying firearms. It then becomes a cultural issue of teaching the public and officers to not over react when they see a firearm. In places like NY, CT, NJ, and CT that is going to take a long time.

    Years ago in Maryland we were driving a two lane back road to a friends home. We passed a person walking on the shoulder of the road with a long gun. I mentally identified the guy as a “hunter” and didn’t think anything of it.

    About two hours later we were on our way back home and about the same place as I had spotted the hunter there were a half dozen cop cars and lots of cops. The hunter was sitting on the side of the road in cuffs and it looked like a search was underway.

    Turns out that he was a hunter, he had left the woods and was just walking back to his car in the easiest way possible.

    The culture of Maryland was that a person with a gun was bad. Orange cap and bolt action rifle wasn’t enough to make it the default that he was a good person. The default is always that owning a gun or having a gun on your person meant that you were bad.

            


  • B.L.U.F. Weird 2A case analysis. The Plaintiff(good guy?) charges that the cops removed him from his car, detained him, did a warrantless search of his vehicle, stole some cash. The Defendant(the state) claims that the presence of a legally carried firearm was justification for the search. Currently in the Second Circuit Court of Appeals waiting judgement.

    History

    Around 2043 on 2018-11-12 Basel Soukaneh was pulled over to the side of the road with the motor running. He was looking up a GPS location of a property he was considering buying.

    He was in a bad part of town where bad things happen so when Officer Andrzejewski noticed the car pulled over to the side with the engine running he performed a “traffic stop”.

    When he started his investigation Mr. Soukaneh announced that he had a permit to carry and that he did have a firearm with him in the car. At this point Officer Andrzejewski removed Mr Soukaneh from the car, put him on the ground, handcuffed him and then locked him in the back of his squad car.

    Officer Andrzejewski then proceeded to search the car, including the trunk of the car. At the end of the search he wrote a traffic citation for “parking in a driveway” and released Mr. Soukaneh.

    The Arguments

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  • A search warrant is a warrant signed by a judge or magistrate authorizing a law enforcement officer to conduct a search on a certain person, a specified place, or an automobile for criminal evidence.

    A search warrant usually is the prerequisite of a search, which is designed to protect individuals’ reasonable expectation of privacy against unreasonable governmental physical trespass or other intrusion. The origin of this right is from the 4th Amendment of the U.S. Constitution to protect people from unlawful government searches and seizures.

    The Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
    Search warrant requirements

    Probable cause: The officer should give reasonable information to support the possibility that the evidence of illegality will be found. Such information may come from the officer’ personal observations or that of an informant. If the warrant lacks accurate information as to what will be searched, the search is unlawful. See Groh v. Ramirez, 540 U.S. 551 (2004).
    — Search Warrant

    IANAL, but isn’t the warrant intended to search ‘for specific things at specific locations’? If they came to my house looking for stolen bunnies off the easter farm but instead found a shit ton of perfectly legal arms, I would expect that I’d be left alone after that – presuming I don’t have a bunch of bunny skins hanging out back to dry. Why does this guy’s armory have to be put on blast?
    — b-zh

    Often times the police are looking for evidence of a crime of significance. The bigger the crime the bigger the charges. This leads to an escalation process. The process of escalating a search warrant to cover what you are actually looking for.

    Consider a search warrant to locate stolen property. The property you are looking for is a workbench taken from the local school.

    Since the search warrant lists what the specifics are that the search are searching for it limits where they can search. The would not be allowed to look in your wife’s intimates drawer. There is no way a “desk” could fit in a drawer. They would be allowed to open closet doors to make sure the desk wasn’t in a large closet.

    That doesn’t actually mean that it has to be logical. Our linen closet is not deep enough for a desk. If you look at the rooms around it and visualize the amount of space for that closet there is no way that it could hide a desk. But you could “hide a desk in a closet” so they warrant would allow the police to look in the closet. It would not allow them to look in containers in that closet.

    Now say the police are executing a search for that desk and sitting on your coffee table in front of the sofa is a crack pipe that looks like it was used.

    That cop now has new evidence in “plain view” of a potential crime. They still can’t go looking for the crack to go with that pipe. Or other drugs. They can only search where the warrant allows them.

    At this point the cop contacts the Judge or magistrate and says “look, we were executing the search of this scums house looking for stolen property and we found drug paraphernalia along with a drug scale. We need a search warrant to extend to looking for drugs.”

    The Judge or Magistrate issues the warrant and when that warrant is in hand the cops now can tear the house apart looking for “drugs”. They are no longer limited to searching place where a desk could be hidden, they are looking for places where drugs could be hidden.

    If in the process of looking for drugs they find evidence of other illegal activities they can act on that evidence. So finding a “rape kit” could be used as evidence because during a search for drugs that kit, hidden in the back of a closet, under the floor, in a box could have held drugs. When it was opened to check for drugs the “rape kit” was in plain sight.

    In the case listed the teacher was suspected of stealing from the local school. Some of the things he was suspected of stealing were tools belonging to the school. This could have meant things like table saws and milling machines but it could, and more likely was, small hand tools. For example a Fluke meter.

    That would have given the cops the ability to check anywhere something the size of a Fluke multi-meter could be hidden. That would include anyplace large enough to hide a firearm.

    Now that they are able to look in places that could hide firearms they find the dudes firearms. In New York state there are such things as “illegal guns” and “illegal magazines”. There doesn’t seem to be any laws requiring guns to be stored unloaded to the “loaded magazines” in the original article is not meaningful.

    Regardless, if the cops found an AR-15 style weapon they would be allowed to determine if it was an “illegal gun” and the same with the magazines. Once a gun was determined to be “illegal” under NY law, the dude could be charged with violating gun regulations.

    This case might end up in court and it might be that the defendant(dude in question) argues that the law making the guns and magazines “illegal” is unconstitutional and he might be able to get those charges dropped.

    A number of lawyers tell you to not talk to the cops. You have to understand exactly how much you should say and then you need to know to shut up and keep your mouth shut. The cop is looking for you to give him the probable cause to do more.

    Pulled from a number of advise articles: Why does a cop start his interaction with you at a traffic stop with “Do you know why I pulled you over?” If you tell answer him his job just got so much easier. If you reply with a polite “Why did you pull me over, Officer?” you haven’t admitted to anything.