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View Full Version : 9TH Cir. 2A LITIGATION: Jackson v. S.F. (Update)


CMonfort
09-28-2011, 11:25 AM
This lawsuit addresses protections for hollow-point ammunition, the ability to store a loaded firearm, and the standard of review applicable to Second Amendment Challenges.

UPDATE:

Yesterday, March 7, the City filed it's opposition brief:

http://michellawyers.com/wp-content/uploads/2010/12/Jackson-v.-San-Francisco_Brief-of-Appellees-City-and-County-of-San-Francisco-and-Its-Mayor-and-Chief-of-Police.pdf

NRA's Opening Brief is available here:

http://michellawyers.com/wp-content/uploads/2010/12/Jackson-Appeal__Conformed-Appellants-Opening-Brief.pdf

Amicus Briefs were filed in the case by David Kopel, Don Kates, John Eastman, Tom Caso, Dan Peterson and Richard Gardiner on behalf of FFLGUARD, CRPA Foundation, Center for Constitutional Jurisprudence, the Law Enforcement Alliance of America, GOC, and the Independence Institute. These briefs, which provide important perspectives from CA firearms retailers, law enforcement, gun owners, and constitutional scholars, are available here:

http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Brief-of-Amici-Curiae-FFLGuard-LLC-and-Gun-Owners-of-California-Inc.-In-Support-of-Appellantsf.pdf

http://michellawyers.com/wp-content/uploads/2010/12/Jackson_CRPA-Independence-Institutes-Amicus-Brief.pdf

http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Center-for-Constitutional-Jurisprudence-Amicus-Brief.pdf

http://michellawyers.com/guncasetracker/jacksonvsf/jackson-v-san-francisco_-amicus-brief-for-leaa/


Judge Richard Seeborg of the United States District Court, Northern District of California previously issued a ruling on San Francisco’s Motion to Dismiss for Lack of Jurisdiction. Holding that the plaintiffs had "adequately alleged an intent and desire to engage in conduct that is prohibited by the ordinances but which they contend is constitutionally protected," the court denied the City’s motion. The case, entirely funded by the NRA and CRPA Foundation, can now move forward toward a determination of its merits. The Jackson lawsuit, filed on May 15, 2009, challenges three San Francisco ordinances on Second Amendment grounds. Specifically, the lawsuit alleges that the City’s enactment and enforcement of three city ordinances requiring firearms be disabled by a trigger lock or stored in a locked container, banning the sale of ammunition that "serves no sporting purpose," and prohibiting firearm discharges with no self-defense exception unduly burdens the right to self-defense. The Jackson case has already been successful in forcing the City to amend its discharge ban, a law that has been in place for some 73 years, to allow for discharges in self-defense, defense of others, and all other circumstances allowed for under state and federal law.

On February 10, 2011, the City responded to Plaintiffs’ Complaint with a motion to dismiss the case based on its claim that the City does not enforce the challenged ordinances. As such, the City argued, Plaintiffs have no legitimate fear of prosecution and otherwise suffer no injury by complying with the law. The technical claim was that Plaintiffs lack "standing" to bring their claims, based on the dearth of prosecutions to date. In short, the City exposed itself as unconcerned that its ordinances in fact coerce law-abiding citizens to surrender their constitutional right to self-defense.

Plaintiffs responded on March 23, 2011, arguing the City’s motion should be denied. Plaintiffs regarded as unpersuasive the City’s claims that its ordinances are not and have not been enforced and that Plaintiffs suffer no injury by obeying these laws. Ultimately, Plaintiffs asked the court to recognize the very real harm they each suffer by complying with the unconstitutional laws.

The court’s ruling did just that. Plaintiffs applaud the decision, upholding reason over rhetoric and recognizing the "immediacy and concreteness of the injury [Plaintiffs] have alleged" and the unreasonableness of requiring a self-defense emergency, or a criminal prosecution, to arise before judicial review of these laws is available. The ruling paved the way for future Second Amendment litigants in the Ninth Circuit.

Plaintiffs now await the filing of Amicus Briefs in support of the City, which are expected to be filed by March 14, 2013. The NRA's Reply brief will be filed shortly thereafter.

taperxz
09-28-2011, 11:31 AM
I sure hope Mirkarimi gets a note on this ruling! Its kinda fun to see a big hole punched in his campaign antics.

Its pretty sad seeing taxpayer money being used against the taxpayer to fight REALLY BAD laws.

curtisfong
09-28-2011, 11:34 AM
SAN FRANCISCO’S MOTION TO DISMISS DENIED; NRA LAWSUIT MOVES FORWARD
On February 10, 2011, the City responded to Plaintiffs’ Complaint with a motion to dismiss the case based on its claim that the City does not enforce the challenged ordinance

I find this astounding. Have there been cases where this defense actually worked?

CMonfort
09-28-2011, 11:39 AM
Yes, but it hasn't really been tested much in the 2A arena.

Crom
09-28-2011, 11:45 AM
Glad to see this case will move forward and be litigated. San Francisco has a very long history of being hostile to gun owners and gun rights. So should we expect to see an amended complaint filed within fifteen days?

Untamed1972
09-28-2011, 11:48 AM
I find this astounding. Have there been cases where this defense actually worked?

Yeah....I find that such a stupid arguement. The fact that is IS on the books and COULD be prosecutable is threat enough.

Law-abiding people do not want to risk it. If the law is not enforced, or is not enforcable is should be removed from that books.

Simply stating "Yeah....it's on the books but we'd likely never enforce it." Is not good enough.

CMonfort
09-28-2011, 11:58 AM
Glad to see this case will move forward and be litigated. San Francisco has a very long history of being hostile to gun owners and gun rights. So should we expect to see an amended complaint filed within fifteen days?

I can't speak to that at the moment, but expect filings soon.

boxbro
09-28-2011, 12:00 PM
If the "City does not enforce the challenged ordinances", then why are they fighting to keep them from being shot down ?

OleCuss
09-28-2011, 12:20 PM
I can't speak to that at the moment, but expect filings soon.

Thank you for kicking posterior!

Glock22Fan
09-28-2011, 1:13 PM
If the "City does not enforce the challenged ordinances", then why are they fighting to keep them from being shot down ?

Yes, it'd be a lot cheaper for them simply to say "Those ordinances are withdrawn" (and do it) than to pay Chuck's team to ask a judge to tell them "Withdraw them."

curtisfong
09-28-2011, 1:18 PM
Yes, it'd be a lot cheaper for them simply to say "Those ordinances are withdrawn" (and do it) than to pay Chuck's team to ask a judge to tell them "Withdraw them."

Is there some sort of perceived political cost to withdrawing the ordinances? Or is it purely ideological at this point? Oaklander's many posts got me thinking more carefully about identifying motives and why doing so accurately is so important.

taperxz
09-28-2011, 1:20 PM
Is there some sort of perceived political cost to withdrawing the ordinances? Or is it purely ideological at this point? Oaklander's many posts got me thinking more carefully about identifying motives and why doing so accurately is so important.


I would have to think that we as gun owners are not the only ones with the MOTTO. "Not one inch"

curtisfong
09-28-2011, 1:27 PM
I would have to think that we as gun owners are not the only ones with the MOTTO. "Not one inch"

I agree. But IMO the BIGGEST mistake is to assume ALL of your opponents are ideologically (e.g. emotionally) driven.

Some really aren't, and are just looking to 1) save money 2) win elections.

1) are easy to win to your side, especially if their $ valuation of various actions is demonstrably flawed.

2) are a bit harder, but if they aren't emotionally driven, they can be convinced that seeing your side is either politically neutral, or in some cases, can be a political win (see also: casting gun rights as civil rights).

hammerhead_77
09-28-2011, 2:18 PM
Wouldn't it be a reasonable (and certain never to be addressed) request to have the City and County publish a list of all the laws they do not intend to enforce? That way law abiding people would not be overly burdened, nor put themselves at risk.

It would never happen, of course. But the response from the other side would make for fun reading!:43:

hoffmang
09-28-2011, 10:15 PM
It is so nice to see that stupid San Diego case (San Diego Gun Rights Comm v. Reno (http://law.justia.com/cases/federal/appellate-courts/F3/98/1121/520565/)) die a miserable death today. A very good win by the M&A!

-Gene

Purple K
09-29-2011, 2:56 AM
1996??? Was THAT San Diego case cited by San Francisco somehow?

a1c
09-29-2011, 8:28 AM
Yeah....I find that such a stupid arguement. The fact that is IS on the books and COULD be prosecutable is threat enough.

Law-abiding people do not want to risk it. If the law is not enforced, or is not enforcable is should be removed from that books.

Simply stating "Yeah....it's on the books but we'd likely never enforce it." Is not good enough.

No kidding. Look at that 19th century law in New York City prohibiting demonstrations while wearing masks. That was obscure and never enforced, until recently when the NYPD started busting out all those guys demonstrating on Wall Street.

Many cops know all these laws, and love using them to bust suspicious-looking citizens.

Crom
09-29-2011, 10:59 AM
It is so nice to see that stupid San Diego case (San Diego Gun Rights Comm v. Reno (http://law.justia.com/cases/federal/appellate-courts/F3/98/1121/520565/)) die a miserable death today. A very good win by the M&A!

-Gene

1996??? Was THAT San Diego case cited by San Francisco somehow?

Here is my non-lawyer opinion on this... :D

Yes it was; and it's all about standing and jurisdiction. The Gun Rights Committee case in the legal world is not about guns, the merits of the case were never evaluated by the trial court. The trial court weaseled its way out and dismissed the case on jurisdictional grounds in 1995. The dismissal was affirmed by the 9th circuit (1996). And in doing so the 9th circuit set some controversial case law. According to Google, Gun Rights Committee is cited by 209 documents, those documents are mostly other cases that relied on Gun Rights Committee as authority.

In the motion to dismiss in Jackson the court explained why the vitality of Gun Rights Committee holding is now doubtful.


The continued vitality of Gun Rights Committee is also questionable in light of MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007). The Gun Rights Committee court had pointed out that, “The acts necessary to make plaintiffs’ injury—prosecution under the challenged statute—materialize are almost entirely within plaintiffs’ own control.” 98 F. 3d at 1127. As a result, the court concluded, “[p]laintiffs have failed to show the high degree of immediacy that is necessary for standing under these circumstances.” Id. In MedImmune, however, the Supreme Court rejected this argument.Our analysis must begin with the recognition that, where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced. The plaintiff’s own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction. 549 U.S. at 128-129.2
Footnote: Indeed, the Court went on to hold that even where the threatened action was by a private party—a patent holder threatening an infringement action—the same principle applies.

RKV
09-29-2011, 12:17 PM
MedImmune, Inc. v. Genentech, Inc - nice cite btw.

:gura:

curtisfong
09-29-2011, 12:42 PM
...where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced.


Sanity. Whew.

Purple K
09-29-2011, 1:15 PM
Thank You. I shoulda read the Jackson decision instead of THAT 1996 decision

Fjold
09-29-2011, 5:29 PM
I smell attorney fees.

I wonder how much the City of San Francisco is willing to spend to be stupid.

1911_sfca
09-29-2011, 7:59 PM
I smell attorney fees.

I wonder how much the City of San Francisco is willing to spend to be stupid.

If it's going to result in good case law and lots of money going to The Right People, I'm all for it -- spend away with my tax $..

RRangel
09-29-2011, 8:17 PM
I find this astounding. Have there been cases where this defense actually worked?

This was just what I was thinking. The argument doesn't make sense. Though this shows what an unenviable position the city of San Francisco is in. That's all they got.

huntercf
09-29-2011, 8:36 PM
San Francisco must think everyone else is stupid, are they kidding...the ordinances are not enforced so the lawsuit must be dropped, give me a break, they are not enforced until some DA feels like making an example of some poor soul who was trying to protect his/her family and goes after them like a rabid dog.

mrdd
09-29-2011, 8:41 PM
It also shows that this was part of their intent in these laws. I have no problem with the city being made poorer by an attorney as in this case.

7x57
09-29-2011, 8:51 PM
I agree. But IMO the BIGGEST mistake is to assume ALL of your opponents are ideologically (e.g. emotionally) driven.

Some really aren't, and are just looking to 1) save money 2) win elections.


I think the ideology involved may fundamentally be as much to give "not one inch" of authority and regulatory scope, a far stronger and pervasive motive than anything to do with guns. Recall that the DC roster case died because nobody could find a firearm that wasn't on one of the rosters they "borrowed." In that case, having a roster is senseless unless the point is simply to retain what power one has.

Essentially, the politics of a very dominant dog. Sometimes you don't have any reason to roll another dog other than to make the point that you can. Men, and corporate bodies made of men, are like that too.

7x57

creekside
09-29-2011, 9:12 PM
When will cities realize that recognizing the new post-McDonald reality is both cheaper and easier?

Thank you for the hard work to get the City of San Francisco to see reason.

This Pink Pistols member would like to have a firearm readily accessible for self defense inside the City and County of San Francisco, and not have to worry about overzealous police, aggressive prosecutors, and/or additional civil liability from a technical violation of an outmoded ordinance.

Drivedabizness
09-29-2011, 9:36 PM
When will cities realize that recognizing the new post-McDonald reality is both cheaper and easier?

Thank you for the hard work to get the City of San Francisco to see reason.

This Pink Pistols member would like to have a firearm readily accessible for self defense inside the City and County of San Francisco, and not have to worry about overzealous police, aggressive prosecutors, and/or additional civil liability from a technical violation of an outmoded ordinance.

For some cities, not unless or until the costs for non-compliance fall personally on those who would deny the post-McDonald reality. They're playing with "our" money - they have no personal skin in the game, not even scruples. Just as they feel "we" need to be subdued, they will need to be subdued.

That may sound non-optimistic...I think it is realistic.

Crom
09-29-2011, 10:51 PM
San Francisco's ill-fated gun laws run deep.

In 1968 SF adopted a gun registration law. The law provided for registration of all firearms within San Francisco, with certain exceptions. This law resulted in a court battle titled Galvan v. Superior Court (http://scholar.google.com/scholar_case?case=15694416537572928751), 70 Cal. 2d 851 - Cal: Supreme Court (1969) It was heard En Banc. The court drew a distinction between "licensing" and "registration." It held that SF was not preempted.

Well I don't know if the CA legislature got pissed off about the Galvin ruling or what but thankfully they stepped in here and amended the government code with updated language preventing SF from enacting any from of gun registration. This is why today we have only one master for gun registration--and that is the state. Thank you to the CA legislature of that era.

In 1982 SF adopted a law banning handguns in the city and county of San Francisco. The city lost the case on appeal because of state preemption. Thank heavens!
Doe v. City and County of San Francisco (http://scholar.google.com/scholar_case?case=15480437705678084350), 136 Cal. App. 3d 509 (1982)

In 2005 SF tried again to ban handguns and sales, xfers, etc. (from Wikipedia (http://en.wikipedia.org/wiki/Gun_laws_in_California))
On November 8, 2005, San Francisco (http://en.wikipedia.org/wiki/San_Francisco) voters enacted Proposition H (http://en.wikipedia.org/wiki/Proposition_H), a total ban on the manufacture, sale, transfer or distribution of firearms or ammunition in San Francisco, as well as a ban on the possession of handguns within the city by San Francisco residents (excepting peace officers, security guards and the like).... In June 2006, Judge James Warren of the San Francisco County Superior Court struck down Proposition H, asserting that under California law local officials do not have the authority to ban handgun ownership by law-abiding citizens. On January 9, 2008, a California appellate court upheld Judge Warren's decision.
Fiscal v. City and County of San Francisco (http://www.calguns.net/calgunforum/scholar.google.com/scholar_case?case=10313407778878388943), 70 Cal. Rptr. 3d 324 - Cal: Court of Appeals, 1st Appellate Dist., 4th

There are probably more transgressions from the past regarding San Fran and it's hatred for guns and gun rights.

CMonfort
03-08-2013, 12:23 PM
UPDATE:

This lawsuit addresses protections for hollow-point ammunition, the ability to store a loaded firearm, and the standard of review applicable to Second Amendment Challenges.

UPDATE:

Yesterday, March 7, the City filed it's opposition brief:

http://michellawyers.com/wp-content/uploads/2010/12/Jackson-v.-San-Francisco_Brief-of-Appellees-City-and-County-of-San-Francisco-and-Its-Mayor-and-Chief-of-Police.pdf

NRA's Opening Brief is available here:

http://michellawyers.com/wp-content/uploads/2010/12/Jackson-Appeal__Conformed-Appellants-Opening-Brief.pdf

Amicus Briefs were filed in the case by David Kopel, Don Kates, John Eastman, Tom Caso, Dan Peterson and Richard Gardiner on behalf of FFLGUARD, CRPA Foundation, Center for Constitutional Jurisprudence, the Law Enforcement Alliance of America, GOC, and the Independence Institute. These briefs, which provide important perspectives from CA firearms retailers, law enforcement, gun owners, and constitutional scholars, are available here:

http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Brief-of-Amici-Curiae-FFLGuard-LLC-and-Gun-Owners-of-California-Inc.-In-Support-of-Appellantsf.pdf

http://michellawyers.com/wp-content/uploads/2010/12/Jackson_CRPA-Independence-Institutes-Amicus-Brief.pdf

http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Center-for-Constitutional-Jurisprudence-Amicus-Brief.pdf

http://michellawyers.com/guncasetracker/jacksonvsf/jackson-v-san-francisco_-amicus-brief-for-leaa/


Plaintiffs now await the filing of Amicus Briefs in support of the City, which are expected to be filed by March 14, 2013. The NRA's Reply brief will be filed shortly thereafter.

dunnigan
03-08-2013, 12:46 PM
Thank you to all that are fighting this fight in the courts and for all that are financially supporting those organizations that are funding this effort.

OleCuss
03-08-2013, 12:59 PM
I agree. The update and the service are much appreciated.

2Aon2wheels
03-08-2013, 1:39 PM
Thank you.

Kicker0429
03-08-2013, 3:18 PM
Mods, can you merge this thread with http://www.calguns.net/calgunforum/showthread.php?t=347708?

hardlyworking
03-08-2013, 6:29 PM
I'm a scientist, so I don't normally read legalese. Fascinating stuff.

I especially liked the NRA/Plaintiffs throwing in the thing about access to birth control in relation to access to bullets, birth control being a big-time liberal agenda issue. That's some smooth operating

glocksmith
03-09-2013, 10:11 AM
You have to love good lawyers......when their on our side.

Dreaded Claymore
03-09-2013, 4:37 PM
Yeah....I find that such a stupid arguement. The fact that is IS on the books and COULD be prosecutable is threat enough.

Law-abiding people do not want to risk it. If the law is not enforced, or is not enforcable is should be removed from that books.

Simply stating "Yeah....it's on the books but we'd likely never enforce it." Is not good enough.

It's the opposite of the principle of legality (if I'm correctly remembering what I learned in junior college). It's hostile to the very foundations of the legal system.