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OHOD
10-21-2009, 6:13 PM
We are all well aware of how our 2nd amendment rights here in California have been regulated to the point of insanity. :willy_nilly::willy_nilly:

Here is an argument and does it hold any water? Or is it just as insane?:TFH:

Does a gun control law promote or indirectly cause someone else to harm me?
Could I sue the state for infringing on my ability to provide for my own life and safety?

Here is a scenario to explain what I am talking about.

Being a law-abiding citizen, I do not carry a gun because I am unable to get a license to carry. I work in Oakland where there is a high crime rate, i.e. murders, theft, robberies and etc
Im on my way to work and get robbed. The robber shoots me in the leg and I survive after a few weeks in the hospital.
Having the ability to use a firearm, then I could have protected myself. Because I am unable to get a CCW, then is it an indirect result of gun laws that have permitted the robber to shoot me, thereby making the state liable?

I think the argument holds no water at all, but has anyone ever tried it?:confused:

thefurball
10-21-2009, 6:21 PM
It makes at least as much sense as the person that ordered a hot coffee at a well known fast food joint and then sued because the coffee was hot and won the case.

I like it.

It is after all the state that has taken away your ability to defend yourself against grievous bodily harm by infringing your constitutionally guaranteed right to keep and bear arms.

mmartin
10-21-2009, 6:46 PM
in simple terms,
I have a 2a protected right to bear arms.
one reason is to be able to protect myself.
the state has prevented me from exercising my rights
If I get hurt because they prevented me from exercising my rights, they should be accountable.

don't know if it's been tried in court.
I think it should be.
megan

GrizzlyGuy
10-21-2009, 7:00 PM
Could I sue the state for infringing on my ability to provide for my own life and safety?

You could sue, but my bet is that you wouldn't win. Prepare to get mad and disgusted, then read this:

http://www.firearmsandliberty.com/kasler-protection.html

radioburning
10-21-2009, 7:16 PM
Well, "you're legally allowed to OC" is what their defense could be...

Legasat
10-21-2009, 8:41 PM
Well, "you're legally allowed to OC" is what their defense could be...

There was a school next door...;)

OHOD
10-21-2009, 8:57 PM
in simple terms,
I have a 2a protected right to bear arms.
one reason is to be able to protect myself.
the state has prevented me from exercising my rights
If I get hurt because they prevented me from exercising my rights, they should be accountable.

don't know if it's been tried in court.
I think it should be.
megan

Well said Megan.
If only I could have said it so clearly.

How about a class action suit? Get all people that have been shot by thugs together and sue. The number would be huge I would bet and would definitely shed some light on reality.

OHOD
10-21-2009, 8:58 PM
Well, "you're legally allowed to OC" is what their defense could be...

That's kind of like saying that you can fight back using your fists, but here, put these pillows on first. :o

OHOD
10-21-2009, 9:08 PM
You could sue, but my bet is that you wouldn't win. Prepare to get mad and disgusted, then read this:

http://www.firearmsandliberty.com/kasler-protection.html

That was an excellent piece about protection by the police, nada.

But, my scenario does not say they need to protect me, but rather they prevented me from protecting myself.

Hmm, I'm sure someone out there has tested this issue.

B.D.Dubloon
10-21-2009, 9:09 PM
Not really. Good luck though.

bigcalidave
10-21-2009, 9:13 PM
So apply for a CCW permit and get denied. At least you tried. That would help your possible future case a lot! (but try your best not to get mugged or killed of course)

bsim
10-21-2009, 10:23 PM
sorry Megan:in simple terms,
I have a 2a protected right to bear arms.
one reason is to be able to protect myself.
the state has prevented me from exercising my rights
If I get hurt because they prevented me from exercising my rights, they should be accountable.We Californians DO NOT have the RKBA. As of now, it's not in the CA Constitution, and the 2nd Amendment does not apply to the states.

If/when incorporation happens THEN you have the "right"...

kf6tac
10-21-2009, 10:34 PM
You probably wouldn't win. If you're approaching this like a standard tort suit, you'd have to prove but-for causation -- that is, but for the state's limiting your ability to carry a weapon with you, you would not have sustained the injury. Problem is, how do you prove that the bad guy would not have been able to shoot you in the leg if you'd been carrying a gun? You'd have had a better chance of getting out of there unscathed, but having a gun with you does not guarantee you an uninjured escape.

Plus, the state would show the jury that stupid study that was published recently about how people carrying guns are more likely to get shot in an assault, and you'd have to sidetrack your case-in-chief to explain to the jury (likely made up of people who are not so clever anyway) why the study is dumb.

On top of all that, you'd have to comply with the California Tort Claims Act.

snobord99
10-21-2009, 10:42 PM
You probably wouldn't win. If you're approaching this like a standard tort suit, you'd have to prove but-for causation -- that is, but for the state's limiting your ability to carry a weapon with you, you would not have sustained the injury. Problem is, how do you prove that the bad guy would not have been able to shoot you in the leg if you'd been carrying a gun? You'd have had a better chance of getting out of there unscathed, but having a gun with you does not guarantee you an uninjured escape.

+1. I don't see this getting past summary judgment.

press1280
10-22-2009, 3:17 AM
The state is almost never liable for any injury. You have to prove the state knew you were going to be attacked and purposely denied you any means of protection. They don't even have to necessarily show up if you called them.

They can be sued for deprivation of CONSTITUTIONAL rights. After McDonald, the courts of CA,NY,NJ, and MD can no longer say it "doesn't apply to us."

MrSigmaDOT40
10-22-2009, 4:47 AM
All they will say is that you could not have defended yourself with a firearm and would have made the situation worse. Then they will throw the case out. Thats how they think and work.

Whiskey_Sauer
10-22-2009, 8:09 AM
The state is almost never liable for any injury. You have to prove the state knew you were going to be attacked and purposely denied you any means of protection. They don't even have to necessarily show up if you called them.

They can be sued for deprivation of CONSTITUTIONAL rights.

Correct.

I've said this elsewhere, but if (and this is a big if), you could make an argument that the Sheriff intentionally acted under color of state law to deprive you of a constitutional right (in this case, not the right to a CCW per se, but the right to due process), you could conceivably make a claim under 42 USC 1983. To claim a deprivation of due process, you must show that you possessed a constitutionally protected property interest, and that you were deprived of that interest without due process of law. Due process interests are created by existing rules or state law which support claims of entitlement to those interests. To have a property interest protected by the Due Process Clause, "a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." But since this is not a shall-issue state, but a discretionary issue state, you would have a very hard time making a claim of deprivation of due process unless you could show, for example, that every other CCW applicant in a position similar to yours was granted the CCW permit, but that you were denied the same because the sheriff bore some animus or harbored some other discriminatory intent to deprive you specifically of the same consideration that he gave others. A very tough case to make. This is all theoretical, of course, and realistically speaking, wouldn't survive a motion to dismiss unless you had really good facts on your side.

But other than that, no, I don't think you can sue successfully, sorry.

OCMI_Teddy
10-22-2009, 8:36 AM
It makes at least as much sense as the person that ordered a hot coffee at a well known fast food joint and then sued because the coffee was hot and won the case.


I hate when people refrence that case, McDonalds were definantly in the wrong on that one.
/rant

back on topic, I'd like to see it tried, however it would be doubtful it would win in court.

Warhawk014
10-22-2009, 9:26 AM
You could sue, but my bet is that you wouldn't win. Prepare to get mad and disgusted, then read this:

http://www.firearmsandliberty.com/kasler-protection.html

excellent article, read the whole thing and it speaks the truth.

snobord99
10-22-2009, 9:44 AM
I hate when people refrence that case, McDonalds were definantly in the wrong on that one.
/rant

back on topic, I'd like to see it tried, however it would be doubtful it would win in court.

I somewhat agree McDonald's acted negligently to an extent, but just the sound of "she sued someone because she spilled coffee on herself" sounds frivolous ;).

Maestro Pistolero
10-22-2009, 9:52 AM
Well, "you're legally allowed to OC" is what their defense could be...

That wouldn't withstand any level of scrutiny. It totally depends on incorporation, but once applied to the states, the SCOTUS' Heller decision says that the firearm must be available for "immediate use for self defense". Laws requiring that the firearm be trigger-locked or disassembled were invalidated.

That the scope of the Heller case was 'in the home' will be made irrelevant by forthcoming cases concerning the 'bear' part of 2A. Heller was just about 'keeping'. Nonetheless, the SCOTUS said that Dick Heller may 'CARRY' his revolver in the home, which is more than Guru even ask for. Obviously, no fundamental constitutional right ends at your doorstep.

Requiring legally carried guns to be unloaded would amount to the same thing. . .they simply wouldn't work for the intended purpose of "immediate use for self defense".

snobord99
10-22-2009, 10:39 AM
Let me be clear: it doesn't matter if 2A was incorporated or not. This will not win. As was mentioned, you have to prove causation. There is pretty much no way to prove that if you had a gun, you would not have been shot. Sure, maybe you could have shot the other guy, but can you prove that they wouldn't have shot you too? In addition, robbery is a supervening illegal act that would basically prevent the state from being liable.

Think of it this way. If you had a CCW and went to a private business that doesn't allow guns but was later shot by someone that slipped through with a gun, could you sue the business for not allowing you to carry your gun in? No. You might win for them being negligent by letting the other gun in, but you will not win because they didn't allow you to carry your gun in.

Flintlock Tom
10-22-2009, 12:14 PM
sorry Megan:We Californians DO NOT have the RKBA. As of now, it's not in the CA Constitution, and the 2nd Amendment does not apply to the states.

If/when incorporation happens THEN you have the "right"...

I beg to differ, the U.S. Constitution, including the BoR, is in the CA state constitution. Article 3, Section 1.
CA Constitution (http://www.leginfo.ca.gov/.const/.article_3)
However, you are correct that we do not have the un-infringed right to keep and bear arms. Mainly because the legislature ignores it.

pTa
10-22-2009, 12:24 PM
I beg to differ, the U.S. Constitution, including the BoR, is in the CA state constitution. Article 3, Section 1.
CA Constitution (http://www.leginfo.ca.gov/.const/.article_3)
However, you are correct that we do not have the un-infringed right to keep and bear arms. Mainly because the legislature ignores it.

Article 3 Section 1;
The State of California is an inseparable part of the
United States of America, and the United States Constitution is the
supreme law of the land.

How righteoius... Well spoken Thomas!


http://i73.photobucket.com/albums/i202/tonelar/guns/th_MolonLabe.jpg

kermit315
10-22-2009, 12:25 PM
I would like to see this played out real time. Could be interesting.

wash
10-22-2009, 12:36 PM
...since this is not a shall-issue state, but a discretionary issue state, you would have a very hard time making a claim of deprivation of due process unless you could show, for example, that every other CCW applicant in a position similar to yours was granted the CCW permit, but that you were denied the same because the sheriff bore some animus or harbored some other discriminatory intent to deprive you specifically of the same consideration that he gave others. A very tough case to make. This is all theoretical, of course, and realistically speaking, wouldn't survive a motion to dismiss unless you had really good facts on your side.

I wonder about your "every other" statement.

Wouldn't you be entitled if they issued a permit for a campaign donor with the same good cause statement?

Please correct me if I'm wrong but that seems like an angle that might work.

Lancear15
10-22-2009, 1:21 PM
sorry Megan:We Californians DO NOT have the RKBA. As of now, it's not in the CA Constitution, and the 2nd Amendment does not apply to the states.

If/when incorporation happens THEN you have the "right"...

Exactly.

If/when we get 2A incorporated, then you would have a law suit.

Whiskey_Sauer
10-22-2009, 1:25 PM
I wonder about your "every other" statement.

Wouldn't you be entitled if they issued a permit for a campaign donor with the same good cause statement?

Please correct me if I'm wrong but that seems like an angle that might work.

It was just an example. As another example, if you could prove that the Sheriff's denial of your application was based on race, you could say that that constitutes an unconstitutional deprivation of due process.

KylaGWolf
10-22-2009, 1:39 PM
Tom while that is a good catch it seems our government seems to ignore their own rulings on things when it suits them. Although I wonder if that could be a way to fight for 2A rights that nice little clause.

snobord99
10-22-2009, 1:54 PM
Correct.

I've said this elsewhere, but if (and this is a big if), you could make an argument that the Sheriff intentionally acted under color of state law to deprive you of a constitutional right (in this case, not the right to a CCW per se, but the right to due process), you could conceivably make a claim under 42 USC 1983. To claim a deprivation of due process, you must show that you possessed a constitutionally protected property interest, and that you were deprived of that interest without due process of law. Due process interests are created by existing rules or state law which support claims of entitlement to those interests. To have a property interest protected by the Due Process Clause, "a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." But since this is not a shall-issue state, but a discretionary issue state, you would have a very hard time making a claim of deprivation of due process unless you could show, for example, that every other CCW applicant in a position similar to yours was granted the CCW permit, but that you were denied the same because the sheriff bore some animus or harbored some other discriminatory intent to deprive you specifically of the same consideration that he gave others. A very tough case to make. This is all theoretical, of course, and realistically speaking, wouldn't survive a motion to dismiss unless you had really good facts on your side.

But other than that, no, I don't think you can sue successfully, sorry.

If you showed that you still won't win a due process claim since it would be an equal protection claim ;). That said, you could do this (if you can do it at all) without ever getting robbed which then misses the whole point of the OP's hypothetical.

wash
10-22-2009, 1:58 PM
The injury would be tangible damages to sue for I think.

I'm not sure if that would make any difference.

snobord99
10-22-2009, 2:05 PM
The injury would be tangible damages to sue for I think.

I'm not sure if that would make any difference.

Not really. I can't really think of any theories you can sue under besides negligence. Elements of negligence:

1. Duty
2. Breach of Duty
3. Causation
4. Damages

It's pretty clear that damages are there. I can see an argument that duty and breach of duty happened too. Problem is, I don't see how you can prove causation.

OHOD
10-22-2009, 10:32 PM
Think of it this way. If you had a CCW and went to a private business that doesn't allow guns but was later shot by someone that slipped through with a gun, could you sue the business for not allowing you to carry your gun in? No. You might win for them being negligent by letting the other gun in, but you will not win because they didn't allow you to carry your gun in.

I really like the way you explained by using an example. Legal terms tend to make my brain explode and the mess is awful. Gray matter everywhere and all.

What if there were a class action suit, would the outcome still be the same?

snobord99
10-22-2009, 11:11 PM
I really like the way you explained by using an example. Legal terms tend to make my brain explode and the mess is awful. Gray matter everywhere and all.

What if there were a class action suit, would the outcome still be the same?

No problem, just glad it actually helped someone :).

As far as class action, no, it wouldn't make a difference. You run into the same problem of proving cause. The only (plausible) way I can imagine this being a class action is if a guy decided to go on a shooting rampage and shot a bunch of people and these people all now want to sue the state for their injuries because they state didn't allow any of them to have a CCW.

Again, this would run into problems of proving that the state not handing out the CCW caused the victims' injuries. You can't prove that if the state had given everyone a CCW then the shooting would have stopped with the first, 5th, or even 100th victim. Of course odds are very good that the gunman would have eventually been shot and stopped, but there's no way to prove when the gunman would have been stopped or even if the gunman would had been stopped had the CCWs been issued.

This doesn't even get into issues of getting the victims certified as a class.

*Disclaimer: I am not an attorney (yet :p) and this is not meant to be legal advice. If you are considering or involved in a lawsuit, consult an attorney.

wash
10-23-2009, 8:42 AM
Not really. I can't really think of any theories you can sue under besides negligence. Elements of negligence:

1. Duty
2. Breach of Duty
3. Causation
4. Damages

It's pretty clear that damages are there. I can see an argument that duty and breach of duty happened too. Problem is, I don't see how you can prove causation.
I was under the impression that in a civil suit the burden of proof was reduced, like the way OJ lost his wrongful death suit after being acquitted on his criminal charges.

Glock22Fan
10-23-2009, 9:38 AM
I wonder about your "every other" statement.

Wouldn't you be entitled if they issued a permit for a campaign donor with the same good cause statement?

Please correct me if I'm wrong but that seems like an angle that might work.

There are people, TBJ included, working on that sort of premise to get people a CCW. It is an angle that should work for that purpose, if you don't get a judge that rewrites the law. However, it would almost certainly fail in the more general type of lawsuit envisaged by the OP. I would have left out the "almost," but one day pigs might fly.

Fjold
10-23-2009, 9:53 AM
Exactly.

If/when we get 2A incorporated, then you would have a law suit.

I wouldn't bet on that.

Even if you applied for a CCW, articulated a "Good Cause" outlining a specific threat to you and were denied and then that specific threat actually occured and you or your family was injured. The laws still protect the LEOs and the States from civil and criminal liability.

JMHO, The only way you could win in a suit like this is if the LEO or State had violated the law previously and had lost in court, on that same issue.

OHOD
10-23-2009, 4:46 PM
I have definitely been enlightened reading this thread. Thanks to all posters.

The scenario is not real and not my intent to pursue some sort of class action suit. I was on my way home from work on my motorcycle thinking about stuff in general and the scenario came to mind and I was wondering how it would play out in real life.

I love this forum. Very cool.

Joanne

Dr. Peter Venkman
10-23-2009, 4:55 PM
Laws don't stop someone from carrying a gun. If you really wanted to defend yourself, you would carry, regardless of the consequences.

unusedusername
10-23-2009, 5:21 PM
Laws don't stop someone from carrying a gun. If you really wanted to defend yourself, you would carry, regardless of the consequences.

Perhaps that is true, however the point is that it ought to be legal for "law abiding" people to have the same right of self-protection that the "non-law abiding" already enjoy.

B Strong
10-23-2009, 5:53 PM
We are all well aware of how our 2nd amendment rights here in California have been regulated to the point of insanity. :willy_nilly::willy_nilly:

Here is an argument and does it hold any water? Or is it just as insane?:TFH:

Does a gun control law promote or indirectly cause someone else to harm me?
Could I sue the state for infringing on my ability to provide for my own life and safety?

Here is a scenario to explain what I am talking about.

Being a law-abiding citizen, I do not carry a gun because I am unable to get a license to carry. I work in Oakland where there is a high crime rate, i.e. murders, theft, robberies and etc
Im on my way to work and get robbed. The robber shoots me in the leg and I survive after a few weeks in the hospital.
Having the ability to use a firearm, then I could have protected myself. Because I am unable to get a CCW, then is it an indirect result of gun laws that have permitted the robber to shoot me, thereby making the state liable?

I think the argument holds no water at all, but has anyone ever tried it?:confused:

Nice try, but even if you're Larry Vickers, you'll be unable to prove in a court of law what would have happened had you been armed.

snobord99
10-23-2009, 8:53 PM
I was under the impression that in a civil suit the burden of proof was reduced, like the way OJ lost his wrongful death suit after being acquitted on his criminal charges.

It is. Problem is that even with a lower burden of proof, I can't see a judge saying "yes, I believe you can show that if you had a gun, you wouldn't have been shot." (I say judge because I don't believe this will get past summary judgment so the jury won't even come in). I just don't see a judge being convinced that you can prove that if you had a gun: 1) robber wouldn't have shot you first, 2) you would have shot the robber, and 3) the shot would have stopped the robber to the extent that you wouldn't have been shot at all. Even assuming that you demonstrate that you're an EXCELLENT shot and wouldn't have missed, you really have no way to prove that they wouldn't have shot you first.

It's a lower burden, but the burden is still on the plaintiff.