2nd amendment class action lawsuit

[legaleagle_45]

Suit against Lynch and the ATF claiming the prohibition against gun ownership for non violent felons is unconstitutional

Sigh--- sometimes 2nd Amendment advocates are their own worst enemy

IMHO this case will be thrown out before it gets too far. An "as applied challenge" as it pertains to the special circumstances of Mr. Mitchell may be meritorious, but not a class action lawsuit and NOT in the 9th Circuit.

http://www.digitaljournal.com/pr/2873751

 

[Frank Ettin]

...IMHO this case will be thrown out before it gets too far. An "as applied challenge" as it pertains to the special circumstances of Mr. Mitchell may be meritorious,...

Very good. This will give you a chance to educate everyone on --

1. the difference between "unconstitutional as applies" and "unconstitutional on its face"; and
   
   
2. the basic principles of class action litigation in federal court (the Rule 23(a) criteria of numerosity, commonality, typicality, and adequacy; and why they might be difficult to satisfy here).

I suggest everyone take the opportunity to read the complaint in this case.

 

[Spats McGee]

I've read the Complaint. It's interesting, to say the least. The gov't will undoubtedly file a 12(b)(6) motion to dismiss, but I think this one survives that. In the past few weeks, I've actually been doing some bill of attainder work, which I'd never thought much about, but it may have some applications in 2A work.

ETA: The 9th is a tough place to win a 2A fight, but if you can win it there, you can win it anywhere.

 

[blarby]

Very good. This will give you a chance to educate everyone on --
the difference between "unconstitutional as applies" and "unconstitutional on its face"; and

I'M LISTENING.

This is an area of constitutional law that always confuses the lot of us Laymen.

*takes notes*

Also, please explain Pg 13, p39 of the complaint, if any of you would be so kind. Thank you.

 

[Johnm1]

I'll bite. I'll research rule 23a. I'll try to have something by Sunday night. Non lawyer here. So you'll get a layman's take on it. I'll site all that I can find. It's been decades since I have been in an actual library. Do they even use the Dewey decimal system anymore?

 

[Spats McGee]

Page 13, paragraph 39? The Plaintiffs are just pleading that: (a) "strict scrutiny applies, so we should win;" or (b) "as an alternative, and even under intermediate scrutiny, we should win."

blarby, you may already know about the varying levels of scrutiny, but for others who may not:

1) Strict Scrutiny:

Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. A famous quip asserts that strict scrutiny is "strict in name, but fatal in practice."

For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification. Suspect classifications have come to include race, national origin, religion, alienage, and poverty.

Source: http://www.law.cornell.edu/wex/strict_scrutiny

2) Intermediate Scrutiny:

Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest. As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more rigorous than rational basis review. Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.

Source: http://www.law.cornell.edu/wex/intermediate_scrutiny

3) Rational Basis:

Rational basis review is a test used in some contexts to determine a law's constitutionality. To pass rational basis review, the challenged law must be rationally related to a legitimate government interest. Rational basis is the most lenient form of judicial review, as both strict scrutiny and intermediate scrutiny are considered more stringent. Rational basis review is generally used when in cases where no fundamental rights or suspect classifications are at issue.

Source: http://www.law.cornell.edu/wex/rational_basis

ETA: legaleagle 45, thanks for bringing this one to our attention.

 

[230RN]

Quick ancillary question for general immediate viewing. The attorneys are actively seeking more members of the "class":

Class Members can join at: (www.americansforcivilrights.org/join-the-class-action) there is no cost to members.

For more information or to schedule an interview call:

Michael E. Zapin, Esq.
LAW OFFICES OF MICHAEL E. ZAPIN
Counsel for Plaintiffs
(Contact points elided -230RN)

Barry Michaels, DC, MPA
(Contact points elided -230RN)

Read more: http://www.digitaljournal.com/pr/2873751#ixzz43In90Qqi

Question:
Would potential members of the "class" have to come from within Circuit 9's jurisdiction?

Terry, 230RN

 

[Spats McGee]

Would potential members of the "class" have to come from within Circuit 9's jurisdiction?

Caveat: I've never defended a class action lawsuit, prosecuted one, nor even taken part in one.

That said, no. I haven't read the description of the proposed class this morning (& I'm not coffee'd up enough to do so on a Saturday), but I don't recall seeing anything in the proposed class description that would limit it to 9th circuit residents. A party may voluntarily submit himself or herself to the jurisdiction of the court.

 

[230RN]

^
OK, thanks. I wanted to get that out in the open.

There are approximately 20 million felons representing over 8% of our country's population and nearly half of them are non-violent offenders. There is no logical argument which can be made, nor empirical data presented, to indicate a direct correlation between the public’s safety and the non-violent offenders.

Read more: http://www.digitaljournal.com/pr/2873751#ixzz43MfrBgno

Wow. Ten million folks could be possible "plaintiffs".

That's a heck of a "class" for a class action suit.

Looks to me like about 1 in 25-30 of the people you meet might be affected.

Sounds like a big deal to me.

Terry, 230RN

 

[deadin]

Isn't there already a path for restoration of gun rights for those convicted of non-violent crimes? I would rather see each individual that wants their rights restored go through the courts to accomplish this. Not just a general amnesty because they have been "good" for the past 5 years. (Remember they showed contempt for the law to begin with.)

 

[joem1945]

In another post it stated the BATF is prohibited from spending any money to resolve a persons being denied a firearm purchase. I see no other way to get a persons right restored other than in court.

 

[skydve76]

Has this provision of 922 every been through strict scrutiny? Its definitely too broad just like the mental health provision of the same law.

Applying these laws to people held for being depressed or someone writing a bad check is the epitome of tyranny towards our rights.

I also am starting to believe this is NOT supported by the majority of the population.

 

[230RN]

In another post it stated the BATF is prohibited from spending any money to resolve a persons being denied a firearm purchase. I see no other way to get a persons right restored other than in court.

Or by Gubernatorial or Presidential pardon.

Applying these laws to people held for being depressed or someone writing a bad check is the epitome of tyranny towards our rights.

For about two decades I've been informally seeing more crimes elevated to felonies. Like if some lawmaker gets really ticked off about something, s/he submits a bill to make it a felony. After all, who couId argue against stiffer penalties, right?

I figured, in my full-on pro RKBA dumb paranoid way, that this was just another aspect of the strategy of deliberately limiting eligible gun owners by the "chokepoint" route, sort of like making vast land areas Parks and Monuments and whatnot where guns are prohibited, and nibbling away at ammunition and safety requirements, etc.

But now I see some felonies are being reduced to misdemeanors, at least here in Colorado. Aha, thought I, some sense is returning to the Legislature.

But my optimism was dashed when I heard the stated motivation for reducing penalties: It makes it easier for Prosecutors to get guilty verdicts.

Drat. Another hope crushed.

That'll teach me. <snif>

Terry, 230RN

 

[Red Wind]

Or by Gubernatorial or Presidential pardon.

Yeah, if it's a Federal felony only a Presidential pardon can get the felons rights restored. There has been no funding for at least 2 decades,TMK. So this is a lifetime sentence of no firearms for these people, low risk or not.

Something should be done to at least give them some hope of restoration.
You forge a check at 21, get a felony rap, then live a clean life for decades, but firearms are beyond your reach. It seems extreme.

 

[Frank Ettin]

In another post it stated the BATF is prohibited from spending any money to resolve a persons being denied a firearm purchase. I see no other way to get a persons right restored other than in court.

That only forecloses a restoration of rights when the disqualification is based on conviction for a federal crime. If disqualification is based on conviction for a state crime, States have their own mechanisms for restoring rights.

Isn't there already a path for restoration of gun rights for those convicted of non-violent crimes? I would rather see each individual that wants their rights restored go through the courts to accomplish this. Not just a general amnesty because they have been "good" for the past 5 years....

The lawsuit isn't about what you would rather see, and what you would rather see is irrelevant. The plaintiffs get to choose what they want to sue for and the remedies they want to ask for. And now the litigation process will decide if they get what they'd rather see.

The plaintiffs here have defined the class in great detail (complaint, pg 5):

Natural persons and citizens of the United States of America, who are convicted non-violent felons who completed their sentence(s) more than five years ago, have not committed any crimes within such time, are not fugitives from justice, have not been discharged from the Armed Forces under dishonorable conditions, are not unlawful users of or addicted to any controlled substances, have not been adjudicated as mental defectives or committed to a mental institution, are not on parole or probation, are not under indictment or restraint, desire to purchase a firearm for lawful purposes, but refrain from doing so only because they reasonably fear criminal prosecution under 18 U.S.C. § 922(g)(1) as directed and enforced by the defendants, and are accordingly deprived of their fundamental Second Amendment right(s) due to enforcement of 18 U.S.C. § 922(g)(1), against them.

Whether or not this definition of the class will support certification of the lawsuit as a class action is, in my view, something of an open question. It strikes me that determining whether a particular person qualifies as a class member might involve some complex findings of fact and/or law; and I'd expect the defendants to raise that in opposition to the certification of the class.

 

[Derry 1946]

Most of the elements of the class are matters of public record: citizen, non-violent felony convict, not under indictment, etc. It would be easier to certify this class than many others that successfully get certified (like toxic torts or product liability). The defendants have or have access to most of it. Desire to purchase a firearm is self-proving through the act of applying to join the class. Drug use might be sticky, but not insurmountable. Thanks for bringing this to light.

 

[Frank Ettin]

Most of the elements of the class are matters of public record: citizen, non-violent felony convict, not under indictment, etc. It would be easier to certify this class than many others that successfully get certified (like toxic torts or product liability)....

I still wonder. Is there uniform definition across all States of what constitutes a violent felony? And while one may declare himself to not be an unlawful user of a controlled substance, the only way to objectively determine that is an investigation and drug test.

 

[mdThanatos]

I still wonder. Is there uniform definition across all States of what constitutes a violent felony?

I don't know how all States handle their firearm laws, but in Alabama there is 13A-11-72, Certain persons forbidden to possess pistol. Within that part of the law, it has a list of what would prevent possession and also references 12-25-32(14) which has a more detailed list. Technically speaking in Alabama, if one has a felony conviction that is not listed in either of those two sections, then that said person is not in violation of state law, but would possibly be in violation of federal law.

I am interested to see how this one plays out, because of the fact that at least one state does technically allow an individual to be in possession of a firearm even as a convicted felon, it may provide some ground to stand on for their argument.

 

[Derry 1946]

I still wonder. Is there uniform definition across all States of what constitutes a violent felony? And while one may declare himself to not be an unlawful user of a controlled substance, the only way to objectively determine that is an investigation and drug test.

Yes, good points. But since the defendants can ostensibly figure out who's precluded from possessing firearms under the statute, it stands to reason they have a mechanism for determining what crimes are felonious state by state. Certainly the US Attorneys in each state must have some idea, or they could never hope to bring charges beyond a reasonable doubt that would survive Rule 11. I agree the drug issue could pose a problem. One way to address it would be for the court to direct the parties to negotiate around it, or barring agreement, to cross-motion a proposed class. If the overall zeitgeist of a class looks viable and efficient from a judicial economy standpoint, the court might hesitate to throw the baby out with the bath water. I can think of some ways to skin the cat. It may depend on how motivated the court is or how much overall merit it sees in the case.

 

[Midwest]

What constitutes a felony?

In many states, fleeing from the police (eluding police) is a felony. Some states a second conviction of Drunk Driving is a Felony, other states it might be three or more. Some states have no felony convictions for plain drunk driving. If bodily harm or death occurs, that might be a different story.

Then you have theft like shoplifting. Some states if the theft is over $200 it is a felony. In other states it might be $600 or more before a felony occurs. Then you have California where there are wobblers, that means it is a crime that could be charged as either a misdemeanor or a felony.

Without getting really into it, even violating foreign laws on U.S. soil (even if you were unaware of the 'foreign law') could net you a felony, jail time and a huge fine.
Read up on the "Lacey Act".


http://www.heritage.org/research/reports/2012/05/the-lacey-act-from-conservation-to-criminalization

https://www.law.cornell.edu/uscode/text/16/3372

What constitutes a violent felony?

Someone getting hurt while committing a felony? Knocking over a store security person and breaking their arm while shoplifting $201 in a low threshold state?

Someone drunk driving causing damage to the mailbox and the lawn?
.

 

[Frank Ettin]

...since the defendants can ostensibly figure out who's precluded from possessing firearms under the statute, it stands to reason they have a mechanism for determining what crimes are felonious state by state.....

...What constitutes a violent felony?...

The class of disqualifying crimes is defined by statute (18 USC 921(a)(21)):

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
​

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

But that definition does not provide a basis upon which to distinguish between violent crimes and non-violent crimes. And the distinction is not always clear. For example, the Second Circuit considered the question at some length and noted (U. S. v. Thrower (08-2016-cr, Second Circuit, 2009)):

...A “violent felony” is defined as “any crime punishable by imprisonment for a term exceeding one year ․ that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another;  or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).  A crime may qualify as a violent felony even if it does not have an element of physical force against another person as described in clause (i), or is not one of the enumerated offenses detailed in clause (ii).   To qualify, the crime must fit within the remaining language in clause (ii), “conduct that presents a serious potential risk of physical injury to another,” known as the residual clause....

And that of course begs the question of whether a particular felony presents a serious potential of physical injury to another. Answering the question, as outlined in Thrower, involves considering the elements of the offense.

And in deciding Thrower the Second Circuit further noted:

...Burglary under the ACCA is defined as “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”  Taylor, 495 U.S. at 599, 110 S.Ct. 2143.   Burglary is considered violent and aggressive because of the inherent potential for harm to others.   Entering a building to commit a crime creates the possibility of a violent confrontation with someone in the building or someone who comes to investigate, and the perpetrator's awareness of that risk may indicate his willingness to use violence in order to accomplish his unlawful objective or to escape.  Id. at 588, 110 S.Ct. 2143....

Cf Begay v. United States, in which the Supreme Court determined that a DUI conviction could not serve as a violent felony under the Armed Career Criminals Act (553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)).

To further complicate the issue, various States may have more specific definitions of "violent felony), e. g. California Penal Code 667.5 (c).

On the other hand, Tyler v Hillsdale County Sheriff's Department, Sixth Circuit, No. 13-1876 (2014) and the opinion of the Sixth Circuit panel (now vacated by granting of an en banc hearing) reflect a different approach. Tyler, a resident of Michigan, was disqualified under 18 USC 922(g)(4) by having been involuntarily confined in a mental institution, but Michigan provided no procedure by which to set aside that disqualification. THe Sixth Circuit panel found that while preventing person with certain psychiatric history (as defined under 922(g)(4)) from having lawful possession of a gun or ammunition served a compelling governmental interest, the disqualification could not constitutionally apply absent the availability of a means to set the disqualification aside. Accordingly, Tyler would need to be afforded an opportunity to demonstrate in court his fitness to possess a gun or ammunition.

It will be interesting to see how the Sixth Circuit winds up on Tyler.

 

[MichaelZapin]

I wanted to thank you all for the robust debate this thread has kicked up. I agree the 9th Circ. will be challenging, but we take our lead plaintiffs where we find them. Mine just happens to be in Nevada and he's a great illustration of the kind of injustice that the law works.

I hope you agree that we raised some novel issues - some of them have certainly successfully worked in individual "as applied" cases and I believe there is no reason why it wouldn't work in a class action setting. I saw someone (@deadin) voice an opinion that he would much rather see individuals file their own individual cases, rather than have automatic "amnesty" after five years --- certainly those folks are free to opt out of the class if they choose to do so, but my feeling is there isn't enough awareness for a lot of these folks to even know that they can actually do that and there isn't enough money (at least for folks that are still struggling) to support the individual litigation they would need to bring it on - a perfectly legitimate reason/factor for filing a class action - you see it all the time in products liability cases, etc.

Remember, all we're asking for is a presumption of law-abiding that anyone else would be entitled to. The right to actually apply for a firearm - still remaining subject to the "Brady Bill" safeguards of course.

Additionally, there is no empirical data to suggest that a non-violent felon that has been released for more than 5 years is any more dangerous than any non-convicted felon. The government really can't move past this. You have to look at the underlying purpose of the law - to prevent violent crime. Why shouldn't the right be automatically restored if there is minimal if any risk of violence? Their time was served. They have a five year track record of being law-abiding - an extremely low-risk for violence - perhaps even lower than someone that has never been incarcerated and therefor has never "learned a lesson" the way those that have been incarcerated and now walk a straight line have learned. Or is this all really a second "punishment phase" that is simply permitted to "slip past" the judiciary because no one has called Congress out on it. Alas, a good friend of mine expressed the general sentiment, "don't get to excited about the lawsuit -- most people don't really give a damn about a bunch of ex-felons." Sad but true.

Yet, the more you look, the more you see an undercurrent of "second class citizenship" developing in this country. Laws like this just contribute to it but they are certainly not alone. "Ban the box" movements obviously point to the difficulties in felons finding gainful employment because of disclosure requirements; disenfranchisement laws still prevent many felons from being able to cast their vote. The list goes on and on.

I'm hopeful we will succeed in our lawsuit. Equally hopeful that we will raise awareness with not only our intended class but the population at large. The high cost of recidivism obviously doesn't just involve criminals, but taxpayers as well - a point legislators fail to consider, perhaps because it involves more than just a "quick fix."

The flip side is that many convicted nonviolent felons are extremely intelligent and business savvy, and could greatly enhance our over all economy if given a real chance to become productive members of society again, instead of just remaining law-abiding while fading, --- albeit gently, peaceably , --- into obscurity.

Please help raise awareness about the class action if you know anyone that might be interested in it either as a member of the class or as a supporter - thank you.

 

[Red Wind]

Excellent first post. Welcome to THR, MichaelZapin. Good luck on your lawsuit.

 

[IdahoSkies]

MZ thank you for your post. Professionally I deal with the more "blue collar" segment of our society and I am often amazed at how many of them have felony convictions, usually years in their past. They are now fathers and mothers with stable jobs, working very hard to make ends meet, but without many of the protections and rights afforded to the rest of us. And I say that on purpose because society really has created an us vs. them mentality with felons. What many of us don't often recognize is that the number of felonies law on the books out there make most of us felons, we just don't know it and haven't been charged. For those who have been in the system that conviction for something stupid when they were 20 or 21 is a millstone around their necks and usually their children's necks.

Good luck with the suit.

 

[stchman]

I'm a big advocate of if a convicted felons has indeed straightened their life out AND has at least 10 years of upstanding behavior(after release from prison if that be the case), their record should be cleared. This does include rights to vote, own a fiream, etc. This of course applies to non-violent felons.

I do think murderers, rapists, child molesters, etc. should never be released from prison.

The problem is ALL felons are lumped into the same pool. So anyone convicted of a felony has to carry around that badge for the rest of their life.