Sleeper: Enos v. Holder (Lautenberg)

[Al Norris]

Donald Kilmer (Nordyke) has been holding out on us. First saw this at Calguns, then went and RECAPped the whole thing. This is a challenge to the Federal interpretation of certain parts of the Lautenberg amendment, as it pertains to CA statutory law.

If this survives, while it won't do away with the MCDV penalties directly, it will provide a way for States to enact statutory means do nullify the lifetime ban on gun possession.

Enos, et al v. Holder, et al. Case 2:10-cv-02911 (PACER #215824). Filed on 10-29-2010 in the US District Court of the Eastern District of California, Sacramento. Donald Kilmer, attorney for the Plaintiffs. 9 Plaintiffs, all but one, convicted of MCDV (Lautenberg). Alleges the US Government has violated their 2A rights through an unlawful interpretation of 18 U.S.C. SS 921, 922, and 925. Alleges violations of 1st, 2nd, 5th, and 10th amendments. The Madison Society is funding this lawsuit.

Docket is here: http://ia700300.us.archive.org/35/i...d.215824/gov.uscourts.caed.215824.docket.html

Complaint is available on the docket. First amended complaint is here: http://ia700300.us.archive.org/35/items/gov.uscourts.caed.215824/gov.uscourts.caed.215824.8.0.pdf

Defendants MTD (points and authorities) is here: http://ia700300.us.archive.org/35/items/gov.uscourts.caed.215824/gov.uscourts.caed.215824.11.1.pdf

These should show up on the "Docket" later tonight, but I thought someone might want to read them now.

 

[krucam]

Great Dig Al!

I must disagree with one of your comments: "If this survives, while it won't do away with the MCDV penalties directly, it will provide a way for States to enact statutory means do nullify the lifetime ban on gun possession."

In the Prayer for Relief:

B. Declaratory and injunctive relief that 18 U.S.C. §§ 922(d)(9) and 922(g)(9) are unconstitutional on their face and as applied to all Plaintiffs.

18 U.S.C. §§ 922(d)(9): "Transfer" to one who has been convicted in any court of a misdemeanor crime of domestic violence.

18 U.S.C. §§ 922(g)(9): "Possession" to one who has been convicted in any court of a misdemeanor crime of domestic violence.

Aren't those two paragraphs of 922 essentially the Lautenberg amendment??

 

[Patrick]

Looks like a full frontal assault, but Kilmer is leaving the door open to temporary reductions in rights. "Minor" crimes cannot come with lifetime bans on a fundamental right, is basically what he is saying here. And because Lautenberg does just that, it is facially unconstitutional.

The Feds argue standing, standing, standing... venue, the two-step and that filing a lawsuit claiming your first amendment rights are denied is, in itself, an exercise of the first amendment - so therefore no claim can be made on those grounds. Bet the Washington Post will sign right up for that one.

The feds argue that a process exists to get your rights back by petitioning the US Attorney General, but completely fail to respond to Kilmer's (correct) claim that although a process exists, it is statutorily denied by virtue of Congressional action. You see, Congress passed a law that does not allow the Attorney General to consider those cases. Ahem.

I am not a fan of Domestic Violence or those who perpetrate it. I am glad to see there is a door to prevent them from having guns for some length of time (a decade or more). A lifetime ban...hard to defend constitutionally.

I warned when McDonald came down that we would not like all the effects - especially the restoration of rights to those many people feel should not have them. I am not arguing over "how bad" the plaintiffs might be, but bring it up to point out that Heller applied to everyone, not just the nice people. Then again, so does the rest of the Bill of Rights.

The Founders built a dangerous document, indeed.

 

[jaypark]

holder none the lest will go to the mats on this

 

[MDFF2008]

Looks like a full frontal assault, but Kilmer is leaving the door open to temporary reductions in rights. "Minor" crimes cannot come with lifetime bans on a fundamental right, is basically what he is saying here. And because Lautenberg does just that, it is facially unconstitutional.

The Feds argue standing, standing, standing... venue, the two-step and that filing a lawsuit claiming your first amendment rights are denied is, in itself, an exercise of the first amendment - so therefore no claim can be made on those grounds. Bet the Washington Post will sign right up for that one.

The feds argue that a process exists to get your rights back by petitioning the US Attorney General, but completely fail to respond to Kilmer's (correct) claim that although a process exists, it is statutorily denied by virtue of Congressional action. You see, Congress passed a law that does not allow the Attorney General to consider those cases. Ahem.

I am not a fan of Domestic Violence or those who perpetrate it. I am glad to see there is a door to prevent them from having guns for some length of time (a decade or more). A lifetime ban...hard to defend constitutionally.

I warned when McDonald came down that we would not like all the effects - especially the restoration of rights to those many people feel should not have them. I am not arguing over "how bad" the plaintiffs might be, but bring it up to point out that Heller applied to everyone, not just the nice people. Then again, so does the rest of the Bill of Rights.

The Founders built a dangerous document, indeed.

Three things:

1.) I agree with the top sentiment. If John Q Drug Dealer gets arrested for dealing drugs and he had a piece on him, I don't think he should be allowed to own a gun as soon as he gets out.

Now if John R DumbF'ck did something stupid at 20, and is now 25 and a stand up citizen, he should be entitled to restore his rights.

2.) I think we are going to see a trend that the government will argue technical points, because it knows it can't survive on the merits of the case.

3.) I think one thing we can expect to see ended are the impossible regulations. Like the "You can get get your gun rights back by petitioning the AG, but the AG isn't allowed to restore gun rights." Or "You need to go to a gun range to get a permit to own a gun, but we won't allow gun ranges in Chicago." Or "You can apply for a handgun CCW in DC, but we aren't giving you the form."

 

[Biggfoot44]

As to the legit concerns, if they comitt DV to such degree that they should have lifetime loss of rights , then convict them of Felony.

 

[Al Norris]

Great Dig Al!

Thanks, but all I did was a bit of grunt work.

A TFL member referenced the case at the Madison Society website. That piqued my curiosity. I went to the referenced website and all they had was photo-copied PDF of a Nov. 16, 2010 letter from Donald Kilmer.

Then I went to RECAP to see if they had anything. Someone had made a preliminary RECAP, back a few months ago. I checked Justia and from there went to refresh the docket on PACER. That's when I found the First Amended Complaint and the defendants MTD.

Since I had the necessary info (amazingly, the Internet Archive was immediately refreshed, but the PDF's weren't yet available, even though they had been placed in the directory), I posted here first and then at TFL (the active thread and the 2A case thread).

Found a thread at CalGuns and posted my info there.

This morning, the docket was completely refreshed and the Madison Society's website also had the proper PDF's (with the exception of the amended complaint).

Like I said, grunt work, but I appreciate the vote of confidence.

On to some points....

I must disagree with one of your comments...

Mark, while there is both a facial and as-applied challenge, I suspect that the facial challenge will fail. That leaves the "as-applied to these plaintiffs" challenge. IMO, this has a better chance of surviving and moving forward.

In that respect, a States Legislature would have to provide the "proper" statutory framework to restore rights. This framework doesn't invalidate the Federal Statutes.

Looks like a full frontal assault, but Kilmer is leaving the door open to temporary reductions in rights. "Minor" crimes cannot come with lifetime bans on a fundamental right, is basically what he is saying here. And because Lautenberg does just that, it is facially unconstitutional.

I couldn't agree more. I have always looked at Lautenberg as the line that blurs the distinction between criminal felonies and misdemeanors. There should be a distinct line, that if one crosses that line, one loses the benefits of society. Lautenberg is a wedge.

What Kilmer must do is to get the Court to accept that a legislative act that allows for the process of restoration of rights and then defunds that process (through another legislative act) is the equivalent of not passing the act altogether. In terms of the courts, the current act has mooted the prior act.

This goes to remedy a case that was before the 5th Circuit, some years ago. I can't for the life of me remember the names, but it dealt with an FFL who was convicted of a felony in Mexico (crossed the border with live round in the trunk, IIRC), and tried to argue that the statute was not a remedy, as it was defunded. The 5th held that it was a political question. The law was there, he wasn't denied the remedy (his application was simply returned), therefore the Court couldn't do a thing (IIRC, cert was denied). That's the current legal status of §925.

The other argument, in case no one noticed, was that the Government is arguing that unless you were deprived of your right vote, sit on a jury or hold a public office (Logan v. U.S., 552 U.S. 23 (2007)), you simply haven't lost your civil rights. Once again, we see the 2A as being the dark-haired stepchild of civil rights.

 

[BlackBart]

Holder = the piece of shit presidents choice for AG, nice, your union dues at work.

 

[Kharn]

Al Norris:
Are you thinking of US v Emerson?

 

[Al Norris]

Al Norris:
Are you thinking of US v Emerson?

No. Emerson was an earlier case that dealt with a Texas Doctor. Emerson was notable as the first case by which a federal appellate court decided that the 2A was in individual right.

The one I was thinking of was later... 2004, maybe 2006, or so.

 

[Kharn]

Al Norris,
My mistake, but now i bet you are thinking of US v Bean (which eventually ended positively for him by Small v US because Bean was convicted by a foreign court).

 

[Al Norris]

That's the one! U.S. v. Bean, 537 U.S. 71.

However I didn't know that because of Small, Bean's conviction was mooted.

 

[Patrick]

...
The other argument, in case no one noticed, was that the Government is arguing that unless you were deprived of your right vote, sit on a jury or hold a public office (Logan v. U.S., 552 U.S. 23 (2007)), you simply haven't lost your civil rights. Once again, we see the 2A as being the dark-haired stepchild of civil rights.

I missed that. Personally, I agree with the philisophical argument.

I don't like the end-effects because there are some seriously bad people who can vote. I don't want them having guns. I don't want them on the street, at all. But somewhere in the labyrinth of government, they decided the risk to society is less than the cost to incarcerate. Then they restore voting rights...

Maybe our dark-hared stepchild will cause governments to take a second look at the people they release. Perhaps a recognition that dangerous people must be afforded guns (under current parole logic, merged with the Bill of Rights) will prevent them from getting out in the first place.

It is odd, because we all know that rules are not going to stop a dangerous person from doing dangerous things. But many of our leaders live in a safe world (they think) because it all looks good on paper. Wrinkle that paper and maybe they will change their tune a bit.

 

[krucam]

Defendant's filed notices of Supplemental Additional Authority...you'll NEVER guess what case they're bringing up....

Docket

#17 they bring up Nordyke. They bring up the 9th Circuits read that Strict Scrutiny doesn't apply automatically. They then bring up that heightened scrutiny applies only when a gun-control regulation substantially burdens the right to keep and bear arms for self defense....straight from Nordyke.

Plaintiffs in this case are subject to a lifetime ban. I'd say that pretty much "substantially burdens" them.

#18 they bring up US v. Booker, upholding § 922(g)(9) (Lautenberg).

Additionally, a hearing was held yesterday:

2011-05-04 19 0 MINUTES (Text Only) for proceedings held before Judge John A. Mendez: MOTION HEARING held on 5/4/2011 re 11 MOTION to DISMISS filed by Robert Mueller, III, Eric Holder, MOTIONS SUBMITTED: Further briefing, limited to 5 pages, to be filed by 5/11/11 and 5/18/11. Order to be prepared by Court in due course. Plaintiffs Counsel D. Kilmer present. Defendants Counsel E. Olsen present. Court Reporter: K. O'Halloran. (Vine, H) (Entered: 05/04/2011)

 

[Patrick]

Only the ninth could take a case about commerce in a protected item - fail to respond the merits of that complaint - and somehow turn it into a tool to use against every 2A complaint nationwide, no matter the scope or the topic.

On the plus side, perhaps the big court will see this and find a way to step in with Williams.

 

[krucam]

Only the ninth could take a case about commerce in a protected item - fail to respond the merits of that complaint - and somehow turn it into a tool to use against every 2A complaint nationwide, no matter the scope or the topic.

On the plus side, perhaps the big court will see this and find a way to step in with Williams.

Could be a busy "off season" over the Winter if we had 2 cases of interest...

 

[Patrick]

I see basically zero chance Nordyke will go anywhere soon. The case is so damn old, having been filed back in 1999 (or earlier?). It was argued under a system where 2A was whatever a state said it was. The most recent case only brought 2A arguments that were kinda up to date.

I know our friends in California love Nordyke. It's always made me shake my head. It is an important question - commerce in protected items - but that argument really only began to manifest over the last two years. The original arguments were all 1A and 14A based.

In fairness to the case, it beat McDonald to incorporation, even if the Ninth did then what it did now - neuter the entire meaning of the Second Amendment in the process.

Nordyke is the kind of case I think the Suprme Court hates to take up. No clear question (is it about speech, gun commerce, due process, sensitive places or the Roswell Aliens?).

Nordyke needs to go back to the drawing board and re-frame the argument taking advantage of modern 2A jurisprudence. The Ninth granted them that option. Other than trying for an en banc to de-list the case, it should stay off the radar for a while. Too much history and drama.

I like the idea of bad decisions pushing circuit splits and some feel Nordyke can aid that cause. I am not so sure. The judges who wrote that thing new damn well what they were doing and avoided actually making a finding on any appealable Second Amendment claims. Instead, they said they were foregoing that decision...but creating a nasty framework to neuter the amendment anyway.

That framework is not truly appealable until it goes into action. Yes...you can argue the grey areas regarding jurisprudence and guidance...but those are hardly the kinds of cases the SCOTUS likes to take up. In other words, Nordyke is the perfect anti-gun decision: it leaves nothing 2A related to appeal and does significant damage all at the same time.

The Ninth was crafty as a fox on Nordyke. Time to recognize the temporary loss and put that one on ice.

 

[krucam]

I see basically zero chance Nordyke will go anywhere soon. The case is so damn old, having been filed back in 1999 (or earlier?). It was argued under a system where 2A was whatever a state said it was. The most recent case only brought 2A arguments that were kinda up to date.

I know our friends in California love Nordyke. It's always made me shake my head. It is an important question - commerce in protected items - but that argument really only began to manifest over the last two years. The original arguments were all 1A and 14A based.

In fairness to the case, it beat McDonald to incorporation, even if the Ninth did then what it did now - neuter the entire meaning of the Second Amendment in the process.

Nordyke is the kind of case I think the Suprme Court hates to take up. No clear question (is it about speech, gun commerce, due process, sensitive places or the Roswell Aliens?).

Nordyke needs to go back to the drawing board and re-frame the argument taking advantage of modern 2A jurisprudence. The Ninth granted them that option. Other than trying for an en banc to de-list the case, it should stay off the radar for a while. Too much history and drama.

I like the idea of bad decisions pushing circuit splits and some feel Nordyke can aid that cause. I am not so sure. The judges who wrote that thing new damn well what they were doing and avoided actually making a finding on any appealable Second Amendment claims. Instead, they said they were foregoing that decision...but creating a nasty framework to neuter the amendment anyway.

That framework is not truly appealable until it goes into action. Yes...you can argue the grey areas regarding jurisprudence and guidance...but those are hardly the kinds of cases the SCOTUS likes to take up. In other words, Nordyke is the perfect anti-gun decision: it leaves nothing 2A related to appeal and does significant damage all at the same time.

The Ninth was crafty as a fox on Nordyke. Time to recognize the temporary loss and put that one on ice.

Agree 100% on Nordyke. Stick a fork in it.

However...using the US AG's citing of Nordyke against them, all I can say is "You" brought it up, not me. Use it...

 

[Patrick]

Good point.

 

[krucam]

Kilmer (Plaintiff's) DID come back and utilize Nordyke against the Defendants (they brought it up)...

A lifetime ban is just a bit of a burden...

http://www.archive.org/download/gov.uscourts.caed.215824/gov.uscourts.caed.215824.21.0.pdf

C. Nordyke does not advance the discussion in Enos v. Holder because the
federal statutes at issue impose a complete ban on all of the Enos
Plaintiffs’ rights associated with the Second Amendment. In other
words, 18 U.S.C. §§ 922(d)(9) and 922(g)(9) are not mere “burdens”
that make gun ownership/possession more difficult or more expensive,
these statutes (1) prevent the lawful transfer of a firearm at the point
of sale to any person convicted of misdemeanor crimes of domestic
violence, and (2) if found in possession, these misdemeanants are
subject to arrest, prosecution and felony conviction. This statutory
scheme places the Enos Plaintiffs in the exact same position as the
plaintiff in District of Columbia v. Heller, 554 U.S. 570 (2008), wherein
the Supreme Court found that a complete ban offends the Second
Amendment under any level of scrutiny. Heller at 628 et seq.

This case is not about eliminating Lautenberg. It is challenging the lifetime ban with no Federal recourse for restoration of rights. Should be a no brainer given felons can regain many of their rights...