Brady Legal Action Project Newsletter - Spring 2012 by David Churchill

SPRING ● 2012

Brady Center Fights NRA Efforts to Force Guns Onto Our Streets

f the NRA has its way, guns will be forced onto the streets of Denver, and Colorado will be denied the right to enforce its legal restrictions on the public carrying of firearms. On March 19, 2012, the Brady Center appeared in federal appeals court in Denver to stop them, to fight for the rights of all Americans to keep guns off their streets. In a crucial first in the nation battle, the Brady Center, the NRA and the Second Amendment Foundation made special friend of the court appearances at the Court’s request to argue whether the Second Amendment allows people to carry loaded, concealed handguns in public, even if state or local laws do not allow it. This is the first case to decide whether a state must allow an unlicensed nonresident to carry loaded guns in public. The Brady Campaign is opposing federal legislation now being considered by the U.S. Senate which would require states to allow concealed carrying by anyone who is allowed to carry concealed in their home state.

should have the right to protect their communities from the dangers of loaded guns on their streets and parks. The gun lobby wants to force guns onto the streets of Denver, and they don’t care how many lives it costs. Their position is so extreme that Colorado’s Attorney General, who has an A- rating from the NRA, is arguing side-by-side in court with us against the NRA and other members of the gun lobby.” Jonathan Lowy, the Director of the Brady Center’s Legal Action Project who argued the case in court, stated, “States and cities have the authority to keep guns off the streets. The Supreme Court’s ruling in Heller found a right of responsible citizens to have a gun in the home, but the Court has never suggested that the Constitution requires guns to be allowed in our streets and parks.”

Dan Gross, President of the Brady Center, stated, “The people of Colorado

Colorado currently allows visitors to carry concealed guns in public if they have concealed carry licenses from states that have reciprocity with Colorado, and they are residents of the state which issued the license. Denver

Trayvon Martin, an unarmed teenager, was shot and killed by a CCW permitee in Florida.

In Peterson v. Garcia, the gun lobby is trying to force loaded hidden handguns into public in the hands of people that the State of Colorado and the City of Denver do not want to carry guns. The argument in the case occurred as dangerous legislation was introduced in the U.S. Congress to force states to allow public carrying by people who have concealed weapon licenses granted by other states, even by states with virtually no standards for concealed carry, and that allow carrying by people with violent pasts. The federal legislation would allow dangerous people like Trayvon Martin’s killer to carry loaded hidden handguns in every state except Illinois.

does not allow guns to be openly carried outside of a dwelling or private vehicle. The gun lobby plaintiff in Peterson v. Garcia does not have a Colorado CCW license, or a license recognized by Colorado, but argued that out-of-state residents have a constitutional right to carry loaded firearms, notwithstanding Colorado and Denver law. In the lower court, on March 8, 2011, Senior Judge Walker D. Miller of the U.S. District Court for the District of Colorado dismissed the case based on “the state’s interest in monitoring a potential licensee’s eligibility for a concealed handguns permit, and the increased difficulty of doing so for out-of-state residents.” The gun lobby then appealed to the Tenth Circuit. The Brady Center filed an amicus brief on July 19, 2011, in the U.S. Court of Appeals for the Tenth Circuit urging dismissal of the appeal. The Brady Center’s brief highlights the severe danger posed by concealed weapons, with studies showing that the carrying of firearms in public is not a useful or effective form of self-defense and, in fact, repeatedly has been shown to increase the risks that one will fall victim to violent crime. ●

INSIDE From the Director

From the President

Alaska Supreme Court Argument

Brady Center Report

Brady Center Lawsuits

Legal Action is published by the Legal Action Project of the Brady Center to Prevent Gun Violence

Taking the Fight Against Gun Violence into Our Nation’s Courts

FROM THE DIRECTOR

he work of the Legal Action Project — like all Brady’s work to prevent gun violence — is really a battle over two visions of America. In our vision, a 17-year-old boy can buy Skittles and a soft drink at the local 7-11 and walk back home safely to watch a basketball game with his father. But in the NRA’s vision, the boy is stopped by a man on the street with a violent past and a loaded hidden handgun. In the NRA’s vision, George Zimmerman kills Trayvon Martin. In March, days after Trayvon was killed, I was in the Byron White Courthouse in Denver, arguing before three judges of the 10th Circuit Court of Appeals. The central issue was whether the Constitution forces all communities to allow people like Zimmerman to carry loaded guns in public places, even in states where they do not live, or that sensibly restrict the carrying of guns in public. Opposing me was a lawyer from the NRA, and the gun lobby lawyer who argued the D.C. and Chicago

The Brady Center to Prevent Gun Violence is a nonprofit, education, research, and legal advocacy organization established in 1983 to reduce the tragic toll of gun violence in America. Sarah Brady Chair Dan Gross President Jonathan E. Lowy Legal Action Project Director Daniel R. Vice Senior Attorney Robyn Long Editor-in-Chief of Legal Action & Legal and Policy Associate

2 • Legal Action

handgun ban cases before the U.S. Supreme Court. As I explained to the judges, our vision of America is not only in line with the Constitution, but it has been part of orderly societies throughout history. Communities have protected public safety by restricting or prohibiting the carrying of arms at least since ancient Greece, when the Law of Solon banned the wearing of armor in Athens. The Statute of Northampton banned riding armed in 1328, was adopted in early English common law, and became a part of American law. In 19th Century America, laws from Texas to Wyoming to Wyatt Earp's Dodge City prohibited the carrying of handguns in public.

The NRA’s dream world is every parent’s nightmare. The gun lobby wants to “return” us to a Wild West that didn’t exist. To give you a sense of how extreme their vision is, consider who was arguing alongside me in Denver: the office of the Colorado Attorney General, who is A-rated by the NRA. While we may disagree on what gun policies would best protect Coloradans, we agree that it is the right of the people, through their representatives, to make and enforce those policies. The gun lobby’s position is not only dangerous, it is at odds with the understood meaning of the Second Amendment. Even Justice Scalia’s majority opinion in Heller recognized the “historical tradition of prohibiting the carrying of dangerous and unusual weapons” as a recognized exception to the Second Amendment right we inherited from England. Yet if the gun lobby wins the case we argued in Denver, and others like it,

the “Constitution” (rather, some NRA-hijacked version) will mandate that we all live in NRA-World. There is no better example of NRAWorld than George Zimmerman. Zimmerman had been charged with assaulting a police officer and was subjected to a domestic violence order, but to the NRA he was a “lawabiding” citizen, one of the “good guys,” as the NRA likes to say. Thanks to the NRA, and its political henchmen in Florida, he was entitled to a license to carry a loaded hidden handgun virtually anywhere, and law enforcement could not take it away from him. Trayvon Martin’s killing shows what happens in the NRA’s armed utopia. Without a gun, George Zimmerman does not get out of his truck at night when he sees a man who he thinks is suspicious. He does not follow Trayvon, especially after police tell him he shouldn’t. And even if he ends up in a tussle with the unarmed boy, no one loses his life. The reason Trayvon Martin will never reach adulthood is because George Zimmerman had a loaded hidden gun on the streets that night. And the reason he had a gun, was because the NRA and their political henchmen gave him a license to carry it. And the NRA is now pushing for federal legislation that would force states to allow George Zimmerman, and dangerous people like him, to carry loaded guns in their communities, even if state and local law prohibited it. The NRA’s dream world is every parent’s nightmare. That’s why our work — and your support — is so important.

Jonathan E. Lowy Legal Action Project Director

FROM THE PRESIDENT

n the short time since I became the new President of the Brady Center in February, one thing has become clear to me: the Legal Action Project is doing exactly what we all need to be doing to make a safer America. We are taking on the gun lobby, not pulling any punches in the fight against gun violence — and winning.

But you know what? We’re winning. We’re beating them in courts across the country. Thanks to the Legal Action Project, they have failed in almost every case.

We are turning what could have been crises into promising opportunities.

There is no more important struggle going on anywhere, on any issue, in America today.

The Brady Center is the citizens’ lobby — I work for you. I speak for all Americans who refuse to let their country be taken over by the NRA and the politicians and judges who do their bidding.

Courts are recognizing a far more important right: The NRA fights for an America that lets dangerous people like George Zimmerman have the “right” to carry loaded hidden handguns on our streets — and gives them a license to kill young people like Trayvon Martin.

The right of Americans to protect their communities from gun violence. The gun industry is trying to establish a new principle in American law — that if you supply criminals with guns, you can pocket the profits and be immune from responsibility for the lives you cost. But thanks to the Legal Action Project, we are …

That’s not our America. Through our Legal Action Project, we are fighting highstakes battles against the gun lobby in courtrooms across the country that will determine what sort of nation we and our children will live in. We fight for an America:

Holding the gun industry accountable for contributing to, and profiting from, gun violence.

• Where the right to grow up and live in safety is more important than the right of dangerous people like convicted felons to carry guns on our streets and shoot them.

Even when ATF and the police take no action against irresponsible gun dealers, Brady’s legal team exposes their wrongdoing and sends a message to gun sellers across the nation that we will seek to hold them accountable for their misdeeds.

• Where communities can enact the strong, common sense laws they need to keep guns out of the hands of dangerous people.

We will not allow the financial interests of an industry to trump the safety of our citizens.

• Where gun companies and the gun lobby are held responsible for their actions and for the damage they cause.

We will not allow the voices of Americans to be shouted down by the bluster of a well-funded special interest lobby and a small band of extremists.

The gun lobby is fighting for a Constitutional mandate that forces us all to live in their “any gun, anybody, anywhere” armed utopia, whether we like it or not. Gun lobby lawyers fight for a supposed right of dangerous people to amass arsenals of military weapons and carry them anywhere.

As a representative of the people’s voice and vision on this issue, it is a fundamental part of my job to expand on our Legal Action Project's record of creativity and success, and lead the Brady Center to even greater victories.

There is no more important struggle going on anywhere, on any issue, in America today.

We can. We will. We must. Thank you,

And it is happening now. The battle is tough. The gun lobby is funded by a billion dollar industry. The NRA’s political henchmen rig the judicial system against us. They have an army of law firm Goliaths, against our plucky Davids. Right-wing judges stand in our way.

Dan Gross President Brady Center to Prevent Gun Violence

ALASKA SUPREME COURT ARGUMENT

Obama Administration and Brady Center Battle In First In The Nation Gun Case in Alaska Supreme Court

n a case seeking to establish important precedent that corrupt gun dealers can be held accountable for arming killers, the Brady Center urged the Alaska Supreme Court to reverse a trial court’s dismissal of a lawsuit brought by the family of murder victim Simone Kim against the gun dealer who irresponsibly supplied his killer. The argument marked the highest court — and the first state Supreme Court — to directly consider the scope and constitutionality of a controversial federal law as it applies to gun dealers.

The Kim family filed suit in August 2008, charging that Coxe illegally sold the gun to Coday or negligently enabled him to get the gun. Trial judge Phillip Pallenberg dismissed the case on October 7, 2010, holding that Congress, in the Protection of Lawful Commerce in Arms Act, commanded the court to dismiss the case, even if it was otherwise supported by Alaska law. The Kims appealed, and are asking the Alaska Supreme Court to allow them to present their case before a jury. ●

The Obama Administration dispatched a Justice Department attorney to Alaska to defend the unprecedented gun industry legal shield law signed by President George W. Bush. The Administration argued alongside gun industry dealer, Ray Coxe, that the Protection of Lawful Commerce in Arms Act (PLCAA) — which purports to shield reckless gun dealers whose negligence arms criminals — is constitutional. Brady Center LAP Director Jonathan Lowy argued on behalf of the Kim family that the PLCAA does not protect gun dealers who violate federal gun laws, and that a jury could find that Coxe illegally sold the killer the gun. Lowy also argued that the Constitution does not allow Congress to bar state courts from applying state civil justice law, or to dictate how states establish liability law governing gun companies. Therefore, it was unconstitutional to deprive the Kim family of their right to have a jury hear their civil claim against the gun store. The PLCAA is the only law ever enacted by Congress that purports to utterly deprive a class of victims of their right to seek compensation against wrongdoers who caused them harm. And it is the first law that bars states from using their courts to establish civil liability standards against a specific industry. On August 2, 2006, Jason Coday, a bizarre-acting, methamphedamine-abusing fugitive who was prohibited by federal law from possessing or buying firearms, walked into Rayco Sales, the Juneau gun store of Ray Coxe. Coday, who had a garbage bag filled with his belongings wrapped around his waist, told Coxe he was interested in obtaining a gun, and Coxe showed him a Ruger rifle and told him the price was $195. Coday soon left the store with the gun, leaving $200 in exchange. Coxe did not subject Coday to a background check and the paperwork required under federal law. Coxe claimed that Coday took the gun and voluntarily left the full purchase price. He also claimed that the store's two video surveillance systems both happened not to record that day. Two days later, Coday used the gun to kill Simone Kim, a 26-year-old man he had never met, who was at work as a painter outside the Juneau Fred Meyer store.

In Alaska, a Show down of Lawyers , Guns, and Bush-Era Firear ms Law by AN

DREW COHEN Last Tuesday, Court of Alaska hear the Supreme extraordinary case d argument in an about gun control, federalism, and so-c alled “tort reform.” At the heart of Kim v. tion of how state judg Coxe is the quesa Bush-era law, the es ought to apply Prot ful Commerce in Arm ection of Lawdesigned and enac s Act, which was ted protect gun manufac by Congress to from lawsuits and turers and dealers liabi committed with their lity for crimes weapons. When the Alas (right now it inclu kan high court des tices) issues its rulin only four justhe first time a state g, it will represent supreme court was THE FACTS weighed in on the fede case has drawn the ral statute. The with a sawed off shot There is a grea among the interested t deal of dispute Brady Campaign To attention of the dolier of extra amm gun and a banunition, hallucinatactly what happenedparties about exolence, and gun righ Prevent Gun Viing that people were ts on advo Wed cate nesd s, and ay, Aug has even generated and standing on the laughing and him, ust 2, 2006, at roof of a bank.” sporting goods store Rayco Sales, a from the Justice Depan intervention Whe n Cod in ay June artm walk au, Alaska. ent, whose The store’s own federal lawyers are gun store that day, the ed into Coxe's er, defending the conKim family says, firearms dealer, says Ray Coxe, a stitutionality of the “he had a garbage bag 2005 statu icable conversation that he had an ambelongings wrapped filled with his The justices will be te. mulling it Jason Coday, who with a man named over at a politically Coxe says that Cod around his waist. m ausp Cox ay iciou e later des time. scribed as a “typical The legislators who backpack and had “was wearing a “very friendly” demAlaskan” with a Act, a weighty examsupport the Arms similar sleeping geara sleeping bag or wrap “normal, rational, eanor who was trusion into traditiona ple of federal inhis stomach in a garb ped around polite and not danage bag.” To gerous.” many of the same l state matters, are Coxe, Coday seem polit desperately opposed icians who are who was living in ed “like someone The family of Simone to the the Affordable woods or had Kim tells a very different story Care Act. The same just gotte n off a ferry.” folks crusading for Coday. In their acco about Coxe and states’ rights and indiv Coxe showed “homicidal methampunt, Coday was a bilities are the same idual responsi— neither side disp Coday some guns utes fugitive” who, befohetamine-abusing the Arms Act, wan ones who, through that the two men talke that, or the fact t to keep gun-liabilre walk ing into Coxe’s store, had ity issues away from ($195.00) for a Rug d about a price exhi state jurors. er rifle. Coxe says behavior ... including bited “bizarre that Cod ay told him walking around about a purchase and he would think then put on his

Legal Action • 4

BRADY CENTER REPORT

Brady Center Report Exposes How Corrupt Gun Dealers “Lose” Thousands of Guns

Brady Center investigative report uncovered data showing that each year thousands of guns leave the inventories of gun stores without a legal sale or federally-required Brady criminal background check. The report, issued in February, explained how corrupt gun shops engage in illegal off the books sales and later report those guns missing when law enforcement discovers that the guns are gone from the shops’ inventories. All told, more than 60,000 guns “disappeared” from the nation’s gun shops in just three years. Pennsylvania ranked #1 in the nation for the most guns “missing” from licensed gun shops with no record of sale, with more than 6,000 guns leaving Pennsylvania gun shops over three years without legal documentation. Pennsylvania gun dealers alone accounted for 10% of all guns reported “missing” from the nation’s gun shops from 2008 to 2010. Firearms that leave gun shops without records of sale are frequently trafficked by gun traffickers and prized by criminals because the guns have no record of sale and are virtually untraceable. Corrupt gun dealers also attempt to disguise illegal off-the-book sales by claiming that the firearms were lost or stolen. In response to an epidemic of “missing” guns that are frequently used in crime, cities and municipalities across Pennsylvania passed ordinances requiring the reporting to law enforcement of lost or stolen guns. In response, the NRA backed a bill that seeks to penalize any Pennsylvania town or city that requires that law enforcement be notified as soon as anyone discovers that their guns are missing. The Brady Center successfully represented Pittsburgh in defeating an NRA lawsuit against its missing gun reporting ordinance. The report highlights the danger of this bill. 60,000 is likely a vast undercount of the number of guns that disappeared from gun shops in the last three years. The

missing guns are noted at ATF compliance inspections of licensed gun dealers, but ATF has conducted compliance inspections each year of only about one-fifth of the nation’s gun shops. ●

WA 3,106

MI 3,295

AZ 2,593

TX 4,599

❑ $250

❑ $100

❑ $50

❑ $25

GA 5,155 FL 2,745 AZ 2,593

The states in the top ten of the most guns reported “missing” from gun shops: 1) Pennsylvania — more than 6,000 2) Georgia — 5,155 3) Texas — 4,599 4) New York — 3,666 5) Michigan — 3,295 6) Washington — 3,106 7) Massachusetts — 2,877 8) Florida — 2,745 9) Arizona — 2,593 10) Illinois — 2,250

To help keep guns off our streets and out of the hands of dangerous people, I would like to make a tax-deductible contribution in the amount of: ❑ $500

MA 2,877

PA 6,000+

IL 2,250

I support the work of the Legal Action Project. ❑ $1,000

NY 3,666

❑ Other $ _______

Please make your check payable to Brady Center to Prevent Gun Violence and mail in enclosed envelope to: 1225 Eye Street, NW Suite 1100 Washington, D.C. 20005

Name Address

or donate online at www.bradycenter.org/donate /actionreport

City, State, Zip Code E-Mail 5 • Legal Action

CX-121

BRADY CENTER LAWSUITS Dangerous Ruling Allows Guns in Colorado University Dorm Rooms and Classes

The lawsuit, Baker v. Kealoha, challenged Hawaii's law limiting public carrying of loaded guns to exceptional cases due to the severe risks posed by guns in public. The Brady Center’s brief cited legal rulings from around the nation that the Second Amendment is limited to a narrow right to possess guns in the home for self-defense and does not grant a right to carry loaded guns in public. The brief also cited studies showing that guns in public are used far more often to kill and wound innocent victims than to kill and wound criminals.

In March, the Colorado Supreme Court issued a dangerous ruling that will allow loaded guns in dorm rooms and classes in public universities throughout Colorado. The Court ruled that the Colorado legislature stripped the University of Colorado of its power to protect students by prohibiting guns on campus when it passed a statewide concealed carry law. Because the ruling is based solely on state law, it does not set legal precedent outside of Colorado.

In granting the Brady Center’s request to file an amicus brief in this case, the federal judge in Hawaii found that the Brady Center was an important asset to the court. Senior Judge Alan C. Kay ruled, “As a participant in Second Amendment litigation across the nation, the Brady Center will provide the Court with information regarding national trends, and will also contribute substantive legal arguments to a discussion that may focus on procedural issues. ... the Court concludes that the Brady Center’s participation will be valuable to the just disposition of this case, and is in the best interests of the Court, the parties, and the public.”

The Brady Center to Prevent Gun Violence filed an amicus brief urging the Court to overturn an April 2010 Colorado appeals court ruling allowing a lawsuit that seeks concealed guns on campus to proceed. In 2009, El Paso County District Court Judge G. David Miller had upheld the ban on guns on campus, noting that the University Regents had determined that having guns on campus “threatens the tranquility of the education environment and contributes in an offensive manner to an unacceptable climate of violence.”

Brady Center Legal Victories Protect Gun Laws Against Gun Lobby Challenges

Brady Center Assisting in Appeal to Overturn Reckless Ruling in Maryland

The Brady Center’s legal team scored crucial victories for communities around the nation demanding strong gun laws, beating back gun industry arguments that the Second Amendment prohibits states and cities from enacting laws protecting their communities from gun violence.

The Brady Center’s legal team is assisting the State of Maryland in appealing a reckless ruling by a federal judge that endangers Maryland communities by pushing more loaded guns onto streets, parks, and playgrounds.

◆ In NSSF v. ATF, a federal judge in Washington, D.C. dismissed a gun lobby challenge to an Obama Administration rule requiring that gun dealers in the Southwest border states notify law enforcement of bulk sales of semi-automatic rifles, a key indicator of gun trafficking. The court agreed with the Brady Center’s amicus brief that ATF had authority to promulgate the rule.

On March 2, 2012, George H. W. Bush appointee Judge Benson Everett Legg ruled that the Second Amendment requires that Maryland allow people to carry loaded guns in public even if they have no “good and substantial reason” to do so. Judge Legg improperly extended the U.S. Supreme Court’s ruling in District of Columbia v. Heller that the Second Amendment only grants a narrow right to possess guns in the home.

◆ In Los Angeles, a federal judge upheld Los Angeles County’s strong concealed carry restrictions in Birdt v. Beck. This victory follows victories at the district court level in similar cases in Yolo County and San Diego County, in which the Brady Center also filed amicus briefs.

Although there have been more than 400 challenges to gun laws since the Heller ruling, this is the only judge in the nation who has mandated public gun carrying even where the people of the state have decided to restrict the carrying of loaded guns in public.

◆ A federal judge upheld New Jersey’s strong restrictions on carrying guns in public, throwing out a Second Amendment Foundation challenge. Agreeing with the Brady Center’s brief in Piszczatoski v. Filko, the judge stated that “the Second Amendment does not include a general right to carry handguns outside the home.”

Judge Legg’s ruling was also contrary to more than 40 recent rulings in federal and state courts across the country recognizing that the Second Amendment does not deprive states of the authority to restrict or prohibit loaded guns in public. This ruling is being appealed and the Brady Center is working to see that it is overturned.

◆ In Jennings v. McCraw, a conservative judge in Lubbock, Texas agreed with the Brady Center and dismissed an NRA challenge to a Texas law prohibiting teens and young adults 18-20 years old from carrying concealed weapons in public.

Court Praises Brady Center Legal Brief, Rules in Favor of Hawaii’s Strong Gun Laws The Brady Center’s Legal Action Project won an important case in federal court in Hawaii in March, succeeding in urging the court to dismiss a challenge to Hawaii’s gun laws. Hawaii’s strong laws keep guns off the streets and have helped the state achieve the lowest gun death rate in the nation.

The gun lobby has stated that it will appeal these defeats, and the Brady Center will continue to defend the important and life-saving gun laws at issue in each case on appeal. ● 6