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View Full Version : Iowa Man is Using 2nd A, Heller, and 14th A to Sue for a CCW!


Paladin
11-04-2008, 11:01 PM
http://www.desmoinesregister.com/article/20081103/NEWS10/811030320/-1/BUSINESS04
Lawsuit aims to test Iowa's concealed weapons law

An Ocheyedan man has filed a federal class-action lawsuit challenging the constitutionality of an Iowa law that requires individuals obtain a permit to carry a concealed weapon.

Paul Dorr, 52, said Thursday that Osceola County Sheriff Douglas Weber wrongly denied on a political whim his and his 18-year-old son's requests for permits to carry concealed weapons.

Dorr filed the lawsuit in U.S. District Court in Sioux City against Weber and Osceola County because Weber turned down the permit applications of both Dorr and his son in 2007. Dorr alleges that the sheriff denied his Second Amendment right to bear arms and 14th Amendment right to due process. "He just denied my permit to carry without foundation," said Dorr, a consultant for taxpayer and political groups. "That denial just brought to mind the lack of objective process that Iowa code allows for sheriffs."

Dorr is bringing the lawsuit on behalf of anyone who has been denied a permit to carry in Iowa. The case is believed to be the first of its kind challenging part of a state code that gives sheriffs discretion in deciding who should receive permits to carry concealed weapons, according to the Iowa attorney general's office.

It is also believed to be one of the first lawsuits since a U.S. Supreme Court decision in June called into question the constitutionality of some state and local gun permit ordinances. The decision, District of Columbia vs. Heller, shot down the district's gun ban, saying it violated an individual's right to bear arms.

At least 35 states — including Kansas, Minnesota, Missouri and Nebraska — now mandate that concealed weapons permits be approved if applicants meet a set of criteria laid out in state law. For the second time in two years, Iowa groups such as the Iowa State Rifle and Pistol Association and IowaCarry.org are supporting a legislative proposal that would make Iowa's permit process more uniform and take discretion away from sheriffs.

The code allows sheriffs to grant permits to carry provided applicants are 18 or older, have never been convicted of a felony, are not addicted to drugs or alcohol, and have no history of violence. The law also requires that "the issuing officer reasonably determine that the applicant does not constitute a danger to any person."

Dorr said he was granted a permit to carry without incident from 2001 to 2007, but that changed when he went to renew his permit in August 2007. His application, he said, came after he had questioned spending within the sheriff's department and the salary of the local county attorney.

Dorr said Weber, elected in 2005, denied his permit, saying that there were people in the county who were afraid of him.

Weber said he would not comment on the lawsuit because he had not yet been served and he had not consulted an attorney. Robert Hansen, the county attorney, did not return a phone call Thursday seeking comment.

lehn20
11-04-2008, 11:06 PM
Someone should do that to LASD.

yellowfin
11-04-2008, 11:10 PM
Iowa's environment is probably just right to make this work.

sigsauer887
11-04-2008, 11:28 PM
Man if this goes well...just more ammo for us :)

FreedomIsNotFree
11-05-2008, 12:20 AM
The sheriff is gonna lose this one. Clearly, the law wasn't applied equally.

kermit315
11-05-2008, 6:34 AM
if they can get a state verdict on "may issue", maybe that will go to help us after nordyke is done here.

bwiese
11-05-2008, 8:30 AM
We'll see.

I hope this is not a another Gary Gorsky-style case. We know a lotta bad cases are gonna come outta the woodwork - I'd hope there's some "senior coordination" here.

Gray Peterson
11-05-2008, 8:33 AM
I don't know. IowaCarry.org doesn't have any information on this so I'm willing to assume that they weren't involved.

Btw, Iowa is a "Permit to Carry" state for any carry, not just concealment.

bwiese
11-05-2008, 10:04 AM
Also, this case may be resolved just by handing the guy a permit - so it doesn't end up going anywhere.

CCWFacts
11-05-2008, 10:53 AM
Also, this case may be resolved just by handing the guy a permit - so it doesn't end up going anywhere.

Let's hope. I have a Gorski-type-of-feeling on this.

hoffmang
11-05-2008, 12:37 PM
I'm hearing rumblings that this one is bad.

-Gene

AJAX22
11-05-2008, 12:56 PM
I'm hearing rumblings that this one is bad.

-Gene

Bad how Gene?

not well thought out?

Detrimental to future 2A litigation?

bwiese
11-05-2008, 1:10 PM
Bad how Gene?

not well thought out?

Detrimental to future 2A litigation?

Usually one follows the other :(

AJAX22
11-05-2008, 1:13 PM
Usually one follows the other :(

yeah... that it does...

I was just hoping for a few more scraps of info...

This could seriously harm the incorporation process if I read it right.

bwiese
11-05-2008, 2:33 PM
yeah... that it does...

I was just hoping for a few more scraps of info...

This could seriously harm the incorporation process if I read it right.

In that circuit, yes.

However, we're very confident we'll get incorporation in the 9th.

"Circuit splits" are a fast track to the Supremes :) So there might be a positive side effect even if otherwise inadvisable.

CCWFacts
11-05-2008, 2:41 PM
"Circuit splits" are a fast track to the Supremes :) So there might be a positive side effect even if otherwise inadvisable.

Let's hope for fast! There's new urgency to hammering out the details of the 2A.

hoffmang
11-05-2008, 2:48 PM
Reading between the lines - as I haven't seen the complain yet - we could win Nordyke and get no cert appeal and lose that one and have to appeal it. Instead of having the well versed and ready to go all the way Nordyke team (which includes all of the California Coalition) we'd have an unknown team without much of the core cadre of skilled attorneys.

In the case filed in Washington State you'll note it was both NRA & SAF. The Iowa case has neither and doesn't look to have the support of the Iowa NRA affiliate either.

-Gene

ilbob
11-05-2008, 2:50 PM
I don't know. IowaCarry.org doesn't have any information on this so I'm willing to assume that they weren't involved.

Btw, Iowa is a "Permit to Carry" state for any carry, not just concealment.

http://www.iowacarry.org/forums1/index.php?showtopic=15415

apparently being funded through (but not by) Oregon Firearms Educational Foundation, which makes me a little nervous.

http://oregonfirearms.org/ofef/index.html

ilbob
11-05-2008, 3:00 PM
The Iowa case has neither and doesn't look to have the support of the Iowa NRA affiliate either.

In fairness, it should be remembered that most of the state NRA affiliates have had to be dragged kicking and screaming into the fight (with an occasional exception here and there).

Librarian
11-05-2008, 3:45 PM
A little more info (http://crcrimeblog.wordpress.com/category/iowa/) on the complaining party, Paul Dorr. Evidently the blogger there has seen the "35-page complaint against Sheriff Weber" and "Dorr is claiming Weber is denying him equal protection under the law, namely because his wife, Debra, was granted a permit when he and their son weren’t."

Circuit courts seem to be moving away from posting filings on line at their web sites, at least for free. US District Court for the Northern District of Iowa does not appear to have any.

Press release on the case (http://www.neopopulism.org/index.php?option=com_content&task=view&id=214&Itemid=1). "Paul Dorr, et al. v. Sheriff of Osceola County, Iowa, et al. "

Link to one of Dorr's attorney's web page (http://www.mklaw.com/VincentFahnlander.asp)

hoffmang
11-05-2008, 9:09 PM
I should have the complaint shortly. Initial inquiries are that the plaintiff is not an person you'd like to have a beer with - even if you are a gunny...

-Gene

hoffmang
11-05-2008, 9:20 PM
Well, instead of waiting for a friend to send me the complaint and using Librarian's helpful link to the right courthouse and my PACER account, we have the actual complaint here (http://www.hoffmang.com/firearms/Dorr_v._Weber-Complaint-2008-10-28.pdf).

I haven't read it in full yet, but two things I see wrong right off the bat are that it is a class action (uhh no...) and it has a Jury Trial demand (uh, bad idea...)

-Gene

383green
11-05-2008, 9:57 PM
Initial inquiries are that the plaintiff is not an person you'd like to have a beer with - even if you are a gunny...

Not even if he's buying? :rolleyes:

Librarian
11-05-2008, 10:41 PM
I need glass of water - that's dry, dry, dry!

Looks like it turns on whether the sheriff could legitimately refuse to renew based on 'not feeling comfortable' (p 8).

And that looks like a state issue, to me. I'd think it would have to go through Iowa courts before Feds would consider a due-process claim. Just a guess, though.

Mulay El Raisuli
11-06-2008, 5:31 AM
I should have the complaint shortly. Initial inquiries are that the plaintiff is not an person you'd like to have a beer with - even if you are a gunny...

-Gene

Who ******* cares?! I wouldn't have liked having a beer with Ernesto Miranda either. Yet, this waste of a human being was the tool to bring us a very important limitation on police power (MIRANDA vs. ARIZONA). The thing to keep in mind (and that I've ranted & raved about before) is that WHO is defended isn't as important as WHAT is being defended.

The reason I let my NRA membership lapse is because they don't keep this in mind. We could have had a HELLER-type Ruling years ago if the NRA hadn't decided to wait until they had a 'pure' defendant (and lets not forget that the NRA was opposed to the HELLER case in the first place). When it comes to striking down criminal provisions in the law, defending criminals is what's required. True, this particular case isn't a criminal matter, but to carry w/o a permit can get one arrested, so the principal still holds.

Example:
A complete sleezeball is found carrying w/o a permit. Instead of just shunning him because he's a sleezeball, the NRA should defend him because he doesn't need a permit under the 2nd & 14th Amendments.

Does this put a sleezeball back on the streets? Sure. Is this a totally bad thing? No. Because striking down the prohibition against carrying means that all the intended victims of this sleezeball now have the means to stop his next attack. Which is, of course, good. Its far better to have a Right strengthened by using a sleezball than to not have the Right supported at all.

As for any faults in Mr. Dorr's legal team, the solution is to provide Dorr with better lawyers. Battles rarely get fought when & where generals prefer to fight. Same thing with legal battles. If this is where Iowan's Rights are going to be decided, then this is where the resources should be put. Better to win the fight than to denigrate the soldiers fighting the battle.

As for the 'class action' & 'jury demand' parts of the case, I'm not seeing a problem with making this a class action. I also have no fear of juries & this may be required by some part of Iowa law.

The Raisuli

hoffmang
11-06-2008, 9:27 AM
Who ******* cares?! I wouldn't have liked having a beer with Ernesto Miranda either. Yet, this waste of a human being was the tool to bring us a very important limitation on police power (MIRANDA vs. ARIZONA). The thing to keep in mind (and that I've ranted & raved about before) is that WHO is defended isn't as important as WHAT is being defended.

1. This is not a criminal case, it is a civil case about LEO discretion. Do you really prefer the judge in the case to have an unsympathetic plaintiff as compared to a fine upstanding citizen? Remember that the issue is the LEO's discretion. The unsympathetic plaintiff can make the judge think "maybe he's right to be denied a permit."

2. There are no facts for a Jury to find and civil rights cases are not tried as class actions. What it shows a judge is that the lawyer he has in front of him is not very experienced in civil rights matters. You'll note that Parker which is the original name of Heller was neither a class action nor requested a jury trial.

I don't prefer to have potentially unsympathetic plaintiffs bringing civil actions that could imperil my rights using attorneys whose filings don't look professional in the eyes of the court. Maybe you prefer to not have all the odds on your side in a fight, but me - I do.

Now having said all that, the best answer is to try to do what we can to improve the situation and I may be wrong in what I have been made aware of about this plaintiff. I can tell you that it doesn't set well with me that this looks like a relatively shall issue sheriff since the guy actually issued a permit to the plaintiff's wife. That tends to be evidence that there may be some good reason the sheriff didn't issue the permit to the plaintiff.

-Gene

yellowfin
11-06-2008, 1:44 PM
What can be done to correct this situation before it does any damage, Gene?

SeanM
11-07-2008, 6:29 AM
Hi folks. I am Sean McClanahan, President of Iowa Carry. Iowa Carry an all-volunteer grass-roots organization fighting to get statewide Shall-Issue in Iowa. I know our founder has been conversing with one of your admins about this, but I wanted to drop in here on the public side and make a few comments.

For starters, Iowa Carry is not in any way involved with this lawsuit, nor will we become involved with it. Mr. Dorr did not seek any guidance from us before setting out on this mission, and frankly, he's fairly well worn out his welcome on our forums. I've spoken a couple of time with Alan Gottlieb at SAF about this, and we're both on the same page: this is a stupid, stupid, stupid lawsuit.

What can be done? Good question. Perhaps the NRA or SAF can reach out to him and convince him that for the overall big picture of 2A and 14A rights across the country, this is not the right time to be doing this. Short of that... I just don't know. He will not listen to us at Iowa Carry. Perhaps getting the suit thrown out on the class action part of it could be something we hope for.

Anyway, I wanted you all to know that we're in this fight with you. We're watching the Nordyke case as well, and waiting to see how that turns out before we, as an org, do anything else.

Sean McClanahan
President
Iowa Carry, Inc.

Mulay El Raisuli
11-07-2008, 6:34 AM
1. This is not a criminal case, it is a civil case about LEO discretion. Do you really prefer the judge in the case to have an unsympathetic plaintiff as compared to a fine upstanding citizen? Remember that the issue is the LEO's discretion. The unsympathetic plaintiff can make the judge think "maybe he's right to be denied a permit."

2. There are no facts for a Jury to find and civil rights cases are not tried as class actions. What it shows a judge is that the lawyer he has in front of him is not very experienced in civil rights matters. You'll note that Parker which is the original name of Heller was neither a class action nor requested a jury trial.

I don't prefer to have potentially unsympathetic plaintiffs bringing civil actions that could imperil my rights using attorneys whose filings don't look professional in the eyes of the court. Maybe you prefer to not have all the odds on your side in a fight, but me - I do.

Now having said all that, the best answer is to try to do what we can to improve the situation and I may be wrong in what I have been made aware of about this plaintiff. I can tell you that it doesn't set well with me that this looks like a relatively shall issue sheriff since the guy actually issued a permit to the plaintiff's wife. That tends to be evidence that there may be some good reason the sheriff didn't issue the permit to the plaintiff.

-Gene


Of course this isn't a criminal action. I never said it was. I used a criminal action as an example.

As for improving the situation, again I mention Ernesto Miranda. Who was completely "unsympathetic" defendant. The principal was still upheld. Yes, it would look nicer to have had Walter Whitebread as the vehicle that set the wheels in motion for the Ruling. But if we waited for that, we might still be waiting. Instead, we have it now. Again, the WHO isn't important. It is the WHAT that matters. The ONLY thing that matters.

As for calls for jury trials & such, again, that might be required by Iowa law. I don't know Iowa law. If your knowledge exceeds mine, then your comments about the wisdom of the approach there would be better than mine. But it looks like your using CA (and DC) legal standards to look at an Iowa lawsuit.

I disagree that the issue is the sheriff's discretion. The issue is the 2nd Amendment. IE; sheriff's shouldn't have discretion, because its inherently unconstitutional. What matters is how that unconstitutionality gets attacked. Maybe the IA lawyer, looking at IA law, figured this was the best way to do so.

As for this particular sheriff & this particular guy, it doesn't matter (constitutionally speaking) how "relatively shall issue" the sheriff is. We don't allow "relatively shall" be the guide to any other Constitutional Right, I see no reason to let it be the guide for the 2nd. I'm also not seeing any proper standards (felon, junkie or the like) being applied to the guy for the denial his Constitutional Right. Unless & until the sheriff can show such, he doesn't have a "good reason" to deny the permit.

As an alternate way of attacking the problem, the NRA could (and should) find someone (anyone) charged with CCW w/o a permit & defend him. Criminal matters move much quicker than civil matters. Even better, they should find a guy already convicted & so having his case already moving up thru the appellate system. He'll already be coming to where the law gets changed anyway (the appellate courts) & a Pleading arguing the unconstitutionality of the law would get heard fairly damn soon. With HELLER in place, we stand a good chance of winning. More, we stand that good chance of winning NOW, not at some future date. Not waiting for some perfect defendant, but NOW. Not waiting until we have all the odds on our side, but NOW. Because NOW is when the odds ARE in our favor.

Does this mean defending someone "unsympathetic" instead of a fine upstanding citizen? Sure it does. Could this mean freeing a guy who's a gang-banger (I guess Iowa has them also). Again, sure. But, that gang-banger would return to a world where the citizenry would also have arms & so have the means to put paid to any nonsense he might want to start. IOW, a better world. We in this state should, of course, do the same.

I don't see the NRA in any state actually doing this & so I don't see me sending any of my hard earned money off their way. If they ever do decide to focus on what's important (the 2nd) & stop letting side issues (oooh, he's not a nice guy) distract them, I'll be happy to open my wallet to them. But not until then.

The Raisuli

hoffmang
11-07-2008, 7:41 AM
Raisuli,

1. This case was filed in Federal Court. You act like you know something of the custom of federal lawsuits. I've personally filed 3 and been a corporate defendant in a half dozen. Federal law has this unique ability to be the same in every state with only very minor local rule variations because - wait for it - its a nationwide court system.

2. Miranda was a CRIMINAL case. Your analogy is just wrong. Civil cases in civil rights can be crafted. Criminal cases happen because a police officer arrests someone.

3. Why do you want a case about discretion against a cop who is showing discretion? It's a much easier case to win when you have a cop who shows no discretion. Judges are easily distracted and confused. Keeping issues simple ala Heller leads to victory - complex cases get bogged down in weeds that set precedents you will not like being held to.

You really need to educate yourself about how civil rights litigation works before you start opining like an expert. Have you ever even attended a federal oral argument? They are free and easy to attend.

And what the hell do you think the NRA is doing in Washington State (just announced with SAF), Supporting Nordyke, filing Amicus in Heller, winning against the SF Handgun Ban, Filing against SF Housing, filing against Chicago, and on and on...

Do you actually read this forum or are your opinions fully and totally uninformed?

-Gene

Liberty1
11-07-2008, 4:49 PM
Hi folks. I am Sean McClanahan, President of Iowa Carry.

Welcome bro!!!

yellowfin
11-07-2008, 4:56 PM
Thanks for the info, Sean, and welcome! Stay and chat with us a bit if you like.

Mulay El Raisuli
11-08-2008, 6:20 AM
Raisuli,

1. This case was filed in Federal Court. You act like you know something of the custom of federal lawsuits. I've personally filed 3 and been a corporate defendant in a half dozen. Federal law has this unique ability to be the same in every state with only very minor local rule variations because - wait for it - its a nationwide court system.

2. Miranda was a CRIMINAL case. Your analogy is just wrong. Civil cases in civil rights can be crafted. Criminal cases happen because a police officer arrests someone.

3. Why do you want a case about discretion against a cop who is showing discretion? It's a much easier case to win when you have a cop who shows no discretion. Judges are easily distracted and confused. Keeping issues simple ala Heller leads to victory - complex cases get bogged down in weeds that set precedents you will not like being held to.

You really need to educate yourself about how civil rights litigation works before you start opining like an expert. Have you ever even attended a federal oral argument? They are free and easy to attend.

And what the hell do you think the NRA is doing in Washington State (just announced with SAF), Supporting Nordyke, filing Amicus in Heller, winning against the SF Handgun Ban, Filing against SF Housing, filing against Chicago, and on and on...

Do you actually read this forum or are your opinions fully and totally uninformed?

-Gene


That the Iowa suit was filed in Federal court was something I missed. Your comments may be correct about Dorr's errors in approach.

The comparison I made to criminal cases is that a criminal case is where the effort should be put, NOT that they were similar to civil suits. Yes, we can "craft" a civil suit. My point was that doing isn't the best way to go. Yes, a criminal case happens because a cop arrests someone. The point is that there are already someones out there already arrested. So, there are two approaches. We could "craft" a really nice case that uses a really nice guy, using all the right arguments & file that now. Or, we could pick the lest offensive criminal defendant already in the pipeline & defend him. If HELLER is used at the appellate level on a criminal case already extant to strike down the 'discretion' issue, then Dorr's lawsuit (with all its 'flaws') becomes irrelevant. More important, it becomes irrelevant MUCH sooner than your carefully "crafted" civil suit.

"Discretion" based on the sheriff "doesn't feel right" about a citizen isn't about a sheriff showing discretion. Its about a sheriff abusing his office. But the real issue his abuse of office, its about him having that kind of discretion in the first place. Dorr feels attacking it directly is the way to go. You seem to feel a carefully "crafted" suit is the way to go. I feel that invalidating the discretion via defense of a criminal is the way to go.

Yes, the NRA is filing briefs & such. I saw that. Did you not see that? My problem is that this is the wrong approach. If I don't jump thru the hoops & get a CCW permit, I can be arrested. Again, there are two approaches. Carefully "crafted" civil suits can be filed so that I don't have to jump thru so many hoops. Or, the requirements can be struck down by a successful defense of a criminal. The advantage of the second approach is that its MUCH quicker. Let me give an example to help keep up with what's being said here.

We have (thanks to Gura & not the NRA) the HELLER decision. In the year 2008. But, back when the Bush Admin first issued the AG Opinion that the 2nd did indeed mean an individual right (2002?), there was a group of gang-bangers arrested in Frisco for carrying guns. They claimed the 2nd. Amendment gave them the right. They lost. But, what if the NRA had defended them? What if a huge effort went into defending the 2nd back then & these guys were set free? We'd have the Right defined, better than we do now most likely, & we would have had it years ago.

Of course, the NRA didn't defend them. They weren't 'nice guys' in any way, shape or form. My point is that I don't care if they're nice guys or not. Defense of the 2nd is what matters, not who is used as the tool to do so.

Now, an argument could be made that this would have been risky pre-Heller. Not a bad argument. But not one that holds water now. Now we do have Heller. If Mr. McClanahan doesn't like Mr. Dorr's approach, he could (and IMHO, should) preempt Dorr via the criminal defense route. IE; pick a guy already in the pipeline & defend him. If people (citizens) can't be convicted for lack of a CCW, then the abuse of discretion by the sheriff ceases to be an issue, doesn't it?

In short, I'm not comparing a civil suit vs. a criminal defense as far as tactics, I'm saying a criminal defense approach is a better strategy.

The Raisuli

ilbob
11-08-2008, 8:28 AM
I don't want anything to do with going to court to defend the rights of criminals at all. These cases are expensive and need lots of donations to pay for. You really think the average NRA member really wants the NRA to file a law suit on behalf of a violent criminal? I can only imagine how many calls to NRA HQs that would generate.

I personally want to see things go quickly too, but I also recognize that nothing happens quickly in the court system.

And I don't know that the courts are going to decide concealed carry is protected. I'd rather leave that issue for later, and flesh out some more basic stuff first. The critical thing time wise now is getting it incorporated before BHO can pack the courts with his leftist sycophants. He will be making it clear fairly soon to sitting judges how they are expected to rule if they want to move up the ladder. It will take a while for that to filter around, but in a year or two it will be well known what kind of rulings are acceptable and what are not.

hoffmang
11-08-2008, 10:45 AM
Raisuli,

I routinely speak to all of the Right People and I can tell you that they are not happy about this case and are in touch with the attorney who filed it.

On your point about criminals - there have been lots of criminal challenges since Heller brought in Federal Courts around the US. Eugene Volokh at the Volokh Conspiracy has been tracking them and not one has been successful. Each of them have basically said, "yep, you're a criminal and criminals have lost their 2A rights."

As to the matter, yes the Iowa law is unconstitutional. However, now that an unsympathetic plaintiff is suing we have a high risk of the courts there finding that discretion is Constitutional. Also, the 2A isn't incorporated in Iowa. Do you really want Nordyke's ultimate outcome put at risk by the Iowa case? I know I don't.

Let me give you a disaster scenario. We win Nordyke here and the other side doesn't appeal to SCOTUS. Iowa loses all the way and the "pro 2A" side appeals to SCOTUS based on a circuit split. The Iowa case goes to SCOTUS without SAF, Gura, or NRA - no experienced civil rights litigator running the case in the Supreme Court...

Wouldn't we much rather have Kilmer and Kates with the full backing of Gura, SAF, and NRA in Nordyke or a similar group of highly skilled advocates that are a part of the network of resources and intelligence on these matters in the next Supreme Court case?

NRA made a fumble or two early in Heller. However, they got serious and put real effort into winning in the Supreme Court. getting 32-33 states and the Vice President on the Amicus brief will continue to be VERY useful in all future 2A litigation. The point of 33 states is that its the number of states necessary to amend the Constitution if that's not obvious.

Bottom line - working together and talking together before filing is how to bring new litigation with novel legal theories - not filing and reaching out afterwards. There are all sorts of traps for those who haven't done Federal litigation - and even traps for those that have. We have 2-3 cases where we want to be putting all the advantages on our side to fully cement the Second Amendment in Stare Decisis. After that, Federal Public Defenders will be able to defend criminals using the 2A. In point of fact many of the lawyers in the group I mention above are already holding events and reaching out to those Public Defenders so that at least they are briefing the issues right.

-Gene

hoffmang
11-08-2008, 10:55 AM
What can be done? Good question. Perhaps the NRA or SAF can reach out to him and convince him that for the overall big picture of 2A and 14A rights across the country, this is not the right time to be doing this. Short of that... I just don't know. He will not listen to us at Iowa Carry. Perhaps getting the suit thrown out on the class action part of it could be something we hope for.

Anyway, I wanted you all to know that we're in this fight with you. We're watching the Nordyke case as well, and waiting to see how that turns out before we, as an org, do anything else.

Sean McClanahan
President
Iowa Carry, Inc.

Sean,

I wanted to publicly welcome you to Calguns.net. Pull up a virtual chair and stay awhile. We'll see what we can do to help you folks in Iowa.

-Gene

Mulay El Raisuli
11-09-2008, 4:49 AM
I don't want anything to do with going to court to defend the rights of criminals at all. These cases are expensive and need lots of donations to pay for. You really think the average NRA member really wants the NRA to file a law suit on behalf of a violent criminal? I can only imagine how many calls to NRA HQs that would generate.


A good point. OTOH, it wouldn't necessarily take an NRA-filed suit. The NRA could file an amicus brief in support of a criminal defendant. Or, they could provide the defendant's public defender with whatever information is needed to overturn the conviction. That way, the public defender's office pays the bills & does the work in court.

The Raisuli

Paladin
11-09-2008, 5:01 AM
Hi folks. I am Sean McClanahan, President of Iowa Carry. Iowa Carry an all-volunteer grass-roots organization fighting to get statewide Shall-Issue in Iowa.Hi Sean, great to have you onboard.

I was sorry to see you guys failed to pass Shall Issue in the last legislative session. Your CLEOs turned on you and seem to be as power hungry as ours. :mad: ("What? Mere serfs allowed to arm and defend themselves in public? NEVER! We're the 'thin blue line' between anarchy and civilization. We're the heroes that women and children should look up to." :rolleyes:)

Do you guys plan on trying for Shall Issue again next session?

How has this year's election altered your odds?

I'd hate to have Dorr mess things up for all of us in fed ct, esp when you guys in IO have a decent chance of getting to Shall Issue legislatively, unlike us in CA at this time.

I like to say to shock people in CA who don't keep up w/2nd A RKBA, "From the Pacific Ocean to the Mississippi River, only California and Iowa are not Shall Issue." I look forward to when that is reduced to one state and then to zero. After that, if Nordyke and some "sons of Heller," go our way, even HI has a chance of going to Shall Issue and I'll say, "Every state west of the Mississippi River is Shall Issue (or better)." Once Alabama gets onboard and Doyle in WI gets replaced and they both go Shall Issue, the US will be in darn good shape!

http://www.nraila.org/images/rtcmaplg.jpg

Wishing you guys the best! Stay optimistic (despite the fed elections) and keep on fightin'! :79:

Mulay El Raisuli
11-09-2008, 5:29 AM
Raisuli,

I routinely speak to all of the Right People and I can tell you that they are not happy about this case and are in touch with the attorney who filed it.

On your point about criminals - there have been lots of criminal challenges since Heller brought in Federal Courts around the US. Eugene Volokh at the Volokh Conspiracy has been tracking them and not one has been successful. Each of them have basically said, "yep, you're a criminal and criminals have lost their 2A rights."

As to the matter, yes the Iowa law is unconstitutional. However, now that an unsympathetic plaintiff is suing we have a high risk of the courts there finding that discretion is Constitutional. Also, the 2A isn't incorporated in Iowa. Do you really want Nordyke's ultimate outcome put at risk by the Iowa case? I know I don't.

Let me give you a disaster scenario. We win Nordyke here and the other side doesn't appeal to SCOTUS. Iowa loses all the way and the "pro 2A" side appeals to SCOTUS based on a circuit split. The Iowa case goes to SCOTUS without SAF, Gura, or NRA - no experienced civil rights litigator running the case in the Supreme Court...

Wouldn't we much rather have Kilmer and Kates with the full backing of Gura, SAF, and NRA in Nordyke or a similar group of highly skilled advocates that are a part of the network of resources and intelligence on these matters in the next Supreme Court case?

NRA made a fumble or two early in Heller. However, they got serious and put real effort into winning in the Supreme Court. getting 32-33 states and the Vice President on the Amicus brief will continue to be VERY useful in all future 2A litigation. The point of 33 states is that its the number of states necessary to amend the Constitution if that's not obvious.

Bottom line - working together and talking together before filing is how to bring new litigation with novel legal theories - not filing and reaching out afterwards. There are all sorts of traps for those who haven't done Federal litigation - and even traps for those that have. We have 2-3 cases where we want to be putting all the advantages on our side to fully cement the Second Amendment in Stare Decisis. After that, Federal Public Defenders will be able to defend criminals using the 2A. In point of fact many of the lawyers in the group I mention above are already holding events and reaching out to those Public Defenders so that at least they are briefing the issues right.

-Gene


Trying again, I'm not saying that criminals have 2A rights. I'm saying that defending a criminal defendant is a quicker way to go. Yes, starting with a carefully crafted civil suit that has a nice guy as a plaintiff does mean all issues are laid out as we like. But how long will that take? HELLER took something like 5 years, didn't it? Do you really think that we have 5 years to get this cemented into place?

I don't know how many people live in Iowa, but surely there must be some otherwise upstanding citizen charged & convicted of carrying illegally who is appealing his conviction. IE; someone already at the level where change in the law is accomplished. Surely a carefully crafted brief could be submitted on that defendant's behalf? Or, if not in Iowa, some other state in that Circuit? Further, it doesn't have to be an upstanding citizen. Example; say a full-bore felon is caught carrying. He'd have two charges, felon in possession & carrying. Briefs against the one charge (carrying) could be filed. Even if a successful defense of the carrying charge results in this full-bore felon walking on both charges, that's still a win for us. Because it strikes down the prohibition against CCW.

My point (again) is that to limit our response to only civil suits, no matter how well crafted, only adds time to the fight. Time we probably don't have. My other point (also again) is that far too much time has already been wasted. We no longer the GOP Prez & Congress that we had in 2002. Now we have a Prez & Congress that might rate as actively hostile to us. The courts are ALL we have & I think its far better to get this settled before that actively hostile Prez & Congress alter the makeup of the courts. To pass on a strategy just because 'criminals are yucky' doesn't do us any good at all simply because it wastes time.

As far as your doomsday scenario, Dorr doesn't have to go w/o Gura & the rest. They can always help him fine-tune the matter. Or, since there are two ways to approach the matter, they can (again) short-circuit Dorr & get to the appellate courts first via the criminal defense route.

Yes, the NRA was dragged into being useful in re HELLER. I see that as making a bet after the horses have left the gate, & nothing else.

As for all of us working together & having a common strategy, that's great. I agree. But it would be better for us if that meeting of the minds included how to use the other approach (the criminal defense route) so that we don't have to wait the 5-10 years that you seem to be OK with. Aside from being impatient, I am (again) uncertain that we have that kind of time.

The Raisuli

hoffmang
11-09-2008, 8:57 AM
A good point. OTOH, it wouldn't necessarily take an NRA-filed suit. The NRA could file an amicus brief in support of a criminal defendant. Or, they could provide the defendant's public defender with whatever information is needed to overturn the conviction. That way, the public defender's office pays the bills & does the work in court.

They already do this but they don't want the NRA brand on a case involving say an illegal immigrant gunning down a family in San Francisco. Do you think NRA involvement in such a case would be good or bad for gun rights?


Trying again, I'm not saying that criminals have 2A rights. I'm saying that defending a criminal defendant is a quicker way to go. Yes, starting with a carefully crafted civil suit that has a nice guy as a plaintiff does mean all issues are laid out as we like. But how long will that take? HELLER took something like 5 years, didn't it? Do you really think that we have 5 years to get this cemented into place?

Yes, I don't expect any of our 5 justices to die in 5 years. The actuarial tables are in our favor.


I don't know how many people live in Iowa, but surely there must be some otherwise upstanding citizen charged & convicted of carrying illegally who is appealing his conviction.

Law abiding people don't break the law. I challenge you to find one example of a law abiding person who was popped for illegal CCW in Iowa. Ask the founder of Iowa Carry if that guy exists. I doubt it. I know that the law abiding here in California don't get popped for CCW when they're actually CCWing. It's either they don't get a permit or the cops don't understand transport laws.

Further the professionals on our side don't wish to attempt to create novel points of law with people who are not sympathetic. Let me put it in a different context for you. Do you think the gay rights movement gets a more sympathetic hearing in the court and court of public opinion when their plaintiff is a middle aged handsome graying anglican priest with a large congregation and an adopted son or a skinny tweaker who wears assless chaps to court?

-Gene

ilbob
11-09-2008, 10:11 AM
A good point. OTOH, it wouldn't necessarily take an NRA-filed suit. The NRA could file an amicus brief in support of a criminal defendant. Or, they could provide the defendant's public defender with whatever information is needed to overturn the conviction. That way, the public defender's office pays the bills & does the work in court.

The Raisuli

Again, I have to ask you what are the NRA members going to be doing while the NRA is filing briefs on behalf of a violent criminal who belongs in prison, not out on the street.

I don't have an issue with the NRA legal foundation putting on seminars for defense lawyers on what some of these cases mean, but directly helping criminals is not the way.

ilbob
11-09-2008, 10:15 AM
Example; say a full-bore felon is caught carrying. He'd have two charges, felon in possession & carrying. Briefs against the one charge (carrying) could be filed. Even if a successful defense of the carrying charge results in this full-bore felon walking on both charges, that's still a win for us. Because it strikes down the prohibition against CCW.

What makes you think that CC is ever going to be ruled a protected right?

I am not in favor of the "ends justifies the means" tactics typical of the left. Its still wrong, even if you get a favorable result.

Mulay El Raisuli
11-10-2008, 7:50 AM
They already do this but they don't want the NRA brand on a case involving say an illegal immigrant gunning down a family in San Francisco. Do you think NRA involvement in such a case would be good or bad for gun rights?


Hard to say, since it has nothing to do with what I'm actually proposing.


Yes, I don't expect any of our 5 justices to die in 5 years. The actuarial tables are in our favor.


Except for suicides, death is always a surprising event. And that's usually the case for the families of suicides as well. The point being that surprising things happen & relying on them to not happen is almost always unwise.
Add to this that Kennedy is a surprise all by himself. So, do we really have 5, or do we have 4 3/4 on our side?


Law abiding people don't break the law. I challenge you to find one example of a law abiding person who was popped for illegal CCW in Iowa. Ask the founder of Iowa Carry if that guy exists. I doubt it. I know that the law abiding here in California don't get popped for CCW when they're actually CCWing. It's either they don't get a permit or the cops don't understand transport laws.


Law abiding people DO break this law when they feel that circumstances warrant that. I myself am an honest man. I myself have felt the need to have heat under my coat on rare occasion. Keep in mind also that my comments also cover Open Carry. Keep in mind then our own bobbarker, an honest man popped for UOC. Whom, IIRC, was supported by this organization. The point being that defending this 'criminal' was a good thing. What I'm urging is that finding honest people popped for illegal carry (either open or concealed) IS possible & that defending such 'criminals' is a good thing. Criminal cases move much faster thru the courts.
I note that you give a great example: cops not understanding transport laws. If the laws against carrying (either open or concealed) get struck down, those "honest citizens' won't have to worry as much in the future, will they?


Further the professionals on our side don't wish to attempt to create novel points of law with people who are not sympathetic. Let me put it in a different context for you. Do you think the gay rights movement gets a more sympathetic hearing in the court and court of public opinion when their plaintiff is a middle aged handsome graying anglican priest with a large congregation and an adopted son or a skinny tweaker who wears assless chaps to court?

-Gene


I've seen less sympathetic defendants have their rights upheld. True, it is a bit harder, but it can be done.
Also, in my personal opinion, it is the second example that would get the greater 'sympathy' from me. I don't know that a judge wouldn't look at it the same way.


But let me get back to our own bobbarker. In that case, the DA decided not to press charges. A completely sympathetic defendant coupled with illegal carry being the only charge made that just about inevitable, I guess.
But lets say that the arrest for UOC lead to additional charges? Lets say the arrest lead to him being charged with some felony or other. IE; something that lead the DA to pushing the matter for all its worth. The Constitutional issues would remain as they always were. bobbarker would be the same guy he always was. And lets not forget that under the law, EVERYONE is entitled to his day in court & the protection of the Constitution & the law. Yet, according to what I'm hearing here, defending him would be a complete no-no.

The problem I'm seeing here is that such a case would be perfect for us. A Motion to dismiss, and/or a Motion to exclude, using the Unconstitutionality of the laws against carrying as its basis, would move even faster up the line because it would involve a defendant waiting for trial. We could get a favorable Ruling within months, maybe only weeks, instead of the years you're OK with waiting for. THIS would be a very good thing for us (presuming competent counsel).

So, can a 'sympathetic' criminal defendant be found? We found bobbarker, we can find another. And even if we can't find one, I'll say again what matters isn't any particular defendant. What matters is the 2A. Again, Ernesto Miranda was a COMPLETELY unsympathetic defendant. He got his day in court, didn't he? As for the bad publicity of using such a sleezeball to establish a very important point of law, should honest men & women refuse to avail themselves of this protection just because a sleezeball was used to establish it? Even if I were advocating something like you posited above, the result would still be a plus. Yes, an illegal immigrant murderer might go free (but, keep in mind, Ernesto Miranda still sat in prison, in spite of the Ruling in his favor), but the protection we would ALL enjoy would make the nation a better place overall. Even if we had to defend such (although, I again point out that we wouldn't necessarily HAVE to) it would still be a good deal.

In short, refusing to defend the 2A in a particular case because the defendant is regarded as 'yucky' only wastes time & is also a bit contrary to what lawyers are supposed to be dedicated to in the first place.

The Raisuli

Mulay El Raisuli
11-10-2008, 8:10 AM
What makes you think that CC is ever going to be ruled a protected right?


I've read the 2A. I've also read the Constitution. I heard what Kennedy said during the oral arguments of HELLER. Some 30+ States already have it.


I am not in favor of the "ends justifies the means" tactics typical of the left. Its still wrong, even if you get a favorable result.


The reason the Left is kicking our collective asses is because they DON'T have any such compunctions. Do you prefer that we lose, but keep our hands dainty? Or would you prefer that we win?

In any event, I'm not so much a fan of the "ends justifies the means" tactics as the Left is. "The law is strongest when it protects the least of us" is SUPPOSED to a guiding principal of lawyers. In theory then, a defense lawyer is supposed to give a best effort regardless of the defendant. All I'm suggesting is that we adopt the same principal to something even more important than any one defendant; the 2A. The Constitution.

What I'm hearing in opposition is that 'we shouldn't/won't defend someone we regard as yucky in order to keep ourselves pure.'

Aside from being contrary to the standards of the legal profession mentioned in re the quote above, it isn't doing us any good to delay things. If being 'impure' leads to the proper recognition of the 2A quickly, I'll be impure. I'd rather be impure, alive & free, then pure, but a slave or dead.

The Raisuli

hoffmang
11-10-2008, 12:00 PM
But let me get back to our own bobbarker. In that case, the DA decided not to press charges. A completely sympathetic defendant coupled with illegal carry being the only charge made that just about inevitable, I guess.


bobbarker is an excellent example that goes counter to your point. First he didn't actually break state law. Second he's still likely to be charged by the city. We'll spend a bunch of CGF money defending him and they'll plea bargain it down to a speeding ticket which he'll have to take. The net value to gun owners - not much. We feel good that we helped a guy in distress but 0 precedential value.

This Iowa case was generated by the plaintiff or his counsel. Just like Gorski and Silviera. We will get bad law from this case. The only question is what kind.

-Gene

nicki
11-10-2008, 1:20 PM
1. We must find plantiffs and create the legal action, not the other way around.

The Barker case hopefully is a lesson to those who advocate open carry or any other gun activism that we have to be smart.

2. Post Nordyke, cases will be filed, with or without Calguns or the NRA.

Therefore it is critical that we in the gun rights movement have to move.
California is where the action will be, the firearms makers need to step up to protect their own businesses.

Right now they are selling alot of guns because of Obama, they should divert some of those profits our way because if we fail, they are out of business.

3. We have to extract legal damages from offending government agencies otherwise we won't be able to defend our rights.

Nicki

hoffmang
11-10-2008, 4:54 PM
2. Post Nordyke, cases will be filed, with or without Calguns or the NRA.


All of the above plus SAF and Madison will be at the tip of the spear post Nordyke. I can say that from actual conversations with them all. Mark my words that CCW and AW issue resolution is right at the top of the agenda. However, we may be able to get 90% on some of these issues without litigation - that will be the only reason we'd hold off on any particular item. That said, expect cases to be filed very quickly after Nordyke is final.

-Gene

Mulay El Raisuli
11-11-2008, 6:39 AM
bobbarker is an excellent example that goes counter to your point. First he didn't actually break state law. Second he's still likely to be charged by the city. We'll spend a bunch of CGF money defending him and they'll plea bargain it down to a speeding ticket which he'll have to take. The net value to gun owners - not much. We feel good that we helped a guy in distress but 0 precedential value.


And this would be a real good example of my point. You've already decided that this case will have no value. Well, if you run up the white flag before you start the fight, of course you're going to lose. OTOH, bobbarker, along with all the other examples you provided (the 'transport' guys), are good examples of of guys who fit your definition of 'good guys,' guys who could be the springboard to faster change. Yet, because defending a 'criminal' is regarded as bad, you're going to let the opportunity to achieve change pass. You're going to plead him out instead of seizing the opportunity presented.


This Iowa case was generated by the plaintiff or his counsel. Just like Gorski and Silviera. We will get bad law from this case. The only question is what kind.

-Gene


We don't have to get bad law from this (Dorr's) case. As the opportunity exists here, I'm sure there are guys just as upstanding as bobbarker in situations that present just as good an opportunity to head him (Dorr) off at the pass. Instead, the lawyers in Iowa are going to do nothing but wring their hands bemoaning Dorr & his silly suit.

A splendid opportunity to prevent that sort of thing (by speeding along the process) is being tossed aside here, & I guess the lawyers in Iowa have no problem doing the same over there.
It's not my call, but I think it very bad strategy to deliberately not use every weapon in your arsenal. We'll for sure meet the goal of keeping our hands dainty & clean. But I'd be a lot happier if winning was the goal.

The Raisuli