Judge denies New Orleans motion to Dismiss


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xcheck
August 16, 2006, 05:38 PM
Today, in the Eastern District Court of Louisiana, Juge Carl Barbier denied New Orleans' motion to dismiss and ruled that the Plaintiffs had a valid claim. Next stop, discovery and pre-trial preparations. Good job NRA and SAF.

Edit: The order dismissing is up on pacer

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Henry Bowman
August 16, 2006, 05:39 PM
Indeed.

orangelo
August 16, 2006, 05:40 PM
Too bad nagin and his gungrabbing phantom police officers won't be doing time for deprivation of civil rights. :mad:

xcheck
August 16, 2006, 05:42 PM
You never know Orange, things may come out in litigation and discovery which pave the way for civil rights claims.


On a side note, what is even more astonishing is that barbier is a Clinton Appointee.

Nio
August 16, 2006, 05:45 PM
I don't know what pacer is...

Nio

armoredman
August 16, 2006, 06:49 PM
Really ugly little car...

Dravur
August 16, 2006, 07:16 PM
At one time, I owned a 1976 Pacer X in white and blue. It was the coolest car ever! Ok, it was cool until the brakes fell out, but up until then, I was stylin!

ChestyP
August 16, 2006, 08:08 PM
http://www.saf.org/viewpr-new.asp?id=198

If that doesn't work, go to http://www.saf.org and scroll about half way down the page to "press releases."



JUDGE REJECTS MOTION TO DISMISS SAF LAWSUIT AGAINST NEW ORLEANS
For Immediate Release: 8/16/2006

BELLEVUE, WA – The Second Amendment Foundation (SAF) today won a key battle in an on-going lawsuit against the City of New Orleans, when a federal judge rejected the city’s motion to dismiss the case.

SAF took New Orleans to court last year to stop illegal confiscation of firearms from private citizens in the wake of Hurricane Katrina. Defendants in the case are the city, Mayor Ray Nagin and Police Superintendent Warren Riley. SAF was joined in the historic lawsuit by the National Rifle Association. Both organizations have members living in New Orleans.

The ruling was issued by Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana. He ordered the city to submit a response to the original lawsuit.

“We’re encouraged by this latest ruling,” said SAF founder Alan Gottlieb. “For almost a year, we’ve been fighting the city’s delay tactics, which included outright lying by city officials that any firearms had been seized. Only when we threatened Mayor Nagin and Superintendent Riley with a motion for contempt did the city miraculously discover that they actually did have more than 1,000 firearms that had been taken from their owners.

“We’re moving ahead with this lawsuit not only to protect the rights of gun owners in New Orleans,” Gottlieb continued, “but to also make sure that this serves as a warning to public officials across the country to forget about seizing firearms from their law-abiding owners in the event of a natural or man-made disaster.

“The next step will include getting an accurate inventory of all confiscated firearms still in the city’s possession,” Gottlieb stated. “We’re not going to rest until every one of those guns is back in the hands of its rightful owner, and the city understands that it cannot defy a federal court order, state law or the Louisiana and federal constitutional provisions that guarantee the individual right to keep and bear arms.

“We’re fighting to make sure this kind of outrage will never again happen on American soil,” he concluded.

Brett Bellmore
August 16, 2006, 08:19 PM
Judge refuses New Orleans' request to dismiss NRA lawsuit (http://www.katc.com/Global/story.asp?S=5289736)

Loved this bit:

The city asked the judge to dismiss the suit for lack of jurisdiction, saying "the states, and by extension their political subdivisions, are free to proscribe the possession of firearms."

The court rejected the motion, ruling the city did nothing to back up "the brazen assertion" that the second amendment did not apply.

GoRon
August 16, 2006, 08:21 PM
OUTSTANDING!!

On a side note my mom drove a Pacer for a while.

http://upload.wikimedia.org/wikipedia/en/8/8d/Pacer_coupe.jpg

Stryker60
August 16, 2006, 10:06 PM
Public Access to Court Electronic Records (PACER)

http://pacer.psc.uscourts.gov/

FTF
August 17, 2006, 12:50 AM
Are these SAF folks worthy of joining up with? I'm an NRA member already. Seems like they're picking good issues but I'm wordering if they are as pantywaist as the NRA on others :confused:

Ieyasu
August 17, 2006, 01:28 AM
David Hardy's take (http:/www.armsandthelaw.com):
NRA and SAF are declaring that the judge denied NO's motion to dismiss their lawsuit over the gun seizures. Here's NRA's press release.

It's an interesting suit, since it's in the 5th Circuit, which has declared for an individual right interpretation of the 2nd Amendment. To apply that to a local government, you'd have to see whether the 5th will incorporate the right to arms via the 14th Amendment. If it does, there might just be Supreme Court material here (and if gunowners win in the Circuit, such a move might be inevitable, since it'd be New Orleans' lot to file for certiorari).

Might make for an interesting case. (1) Unlike the typical criminal appeal, you don't have, well, criminals asserting a right; (2) the Court wouldn't have to flesh out the details of the right (which it may be reluctant to do), but could simply hold that confiscating firearms from an entire civilian populace, at a time when they are most needed, violates the right to arms. Then pitch it to the circuits to figure out what else might, and come back in in five or ten years and give some more definitive rulings

Ieyasu
August 17, 2006, 01:29 AM
Are these SAF folks worthy of joining up with?
Yep, and so is GOA(http://gunowners.org/), but keep that NRA membership!

Brett Bellmore
August 17, 2006, 08:30 AM
The problem with this as a 2nd amendment test case, is that it was a case of police confiscating private property, without compensation, (Apparently even without record keeping, if we're to believe them.) and without any statutory authority. It would have been unconstitutional if they'd been confiscating Mars bars!

So the Court could take the case, if they felt like it, and rule in our favor on the merits while completely ignoring the 2nd amendment.

Until the Supreme court is willing to address the 2nd amendment, there simply isn't such a thing as "Supreme court material". They're capable of refusing cert to any case, no matter how good a test case it is.

It's worth sending these cases up, every once in a while after a personel change, to see if we've got the votes to get cert. yet. But no case can compell the court to examine an issue it doesn't want to touch.

xd9fan
August 17, 2006, 12:36 PM
IMHO nothing will ever really change until LEO's and politicians start going to jail for crimes like this. Otherwise its just court paperwork bravado....much ado about nothing. Rights really will never be respected by this group until they see one of their own do the "perp walk".

BobTheTomato
August 17, 2006, 12:40 PM
I know they wont go to jail but it would be nice if they could be personally sued for monetary damages. That might make them think twice.

munangokeewati
August 17, 2006, 02:00 PM
Public Access to Court Electronic Records (PACER)

http://pacer.psc.uscourts.gov/

Could someone post a direct link to the document? I can't figure out how to get it without logging in and perhaps paying a fee.

Thanks.

xcheck
August 17, 2006, 02:04 PM
I have the document and it is the header and simply says "Motion Denied"

Transcripts might be available through the court, but certainly not for free.

Henry Bowman
August 17, 2006, 02:09 PM
Are these SAF folks worthy of joining up with? Yes, they are. And because they fight our battles in the court and through education (rather than by lobbying our legislators), all money given to them is tax deductable :D

hugh damright
August 17, 2006, 02:14 PM
It seems to me that the intent here is to reconstruct/incorporate the Second Amendment ... because if the intent was to win the case, then I think they would base it upon the Louisiana State Constitution declaring that "The right of each citizen to keep and bear arms shall not be abridged".

xcheck
August 17, 2006, 03:08 PM
That would be a very valid thought Hugh. COmbine that thought with the idea that the City was trying to use LA state of Emergency law as a defense, with the additional idea that by going after NOLA through the State Consititution would make it an issue for Louisiana courts to decide under the theory of Adequate and Independant State Grounds thereby removing it from Federal Court and you might have a winner.

munangokeewati
August 17, 2006, 03:09 PM
I finally found some of the relevant documents at http://www.saf.org (http://www.saf.org/). Hugh, you're right about one of the purposes being to probe 2A incorporation. This is from page 6 of the original complaint:

The Second Amendment to the United States Constitution, which applies to the States through the Fourteenth Amendment, similarly provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
-- http://www.saf.org/new.orleans.lawsuit/complaint.declaratory.injunctive.relief.pdf

This looks like it could become a very interesting case.

--M-K

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