Jackson v. City & County of San Francisco

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  • Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho
    From a post over at TFL:

    Sean Brady said:
    On May 17, 2012, attorneys for the National Rifle Association, the San Francisco Veteran Police Officers Association, and several San Francisco gun owners filed a Motion for Judgment on the Pleadings in their legal challenge to San Francisco’s "locked-storage" law, as well as the City’s prohibition on the sale of "hollow-point" ammunition and all ammunition that does not "serve a sporting purpose."

    The lawsuit, Jackson v. City and County of San Francisco, was filed as a test case in May of 2009, before the McDonald v. Chicago decision in 2010, and in the wake of the 9th Circuit’s May 2, 2011 confirmation in Nordyke v. King that the Second Amendment is "incorporated", i.e., that it protects against infringements by state and local governments.

    Sean Brady is an Attorney with Michel & Associates, P.C. This law firm are the NRA's "goto" guys in CA.

    The Jackson case has virtually gone under the radar, both here, at CalGunsNet and at TFL. The reasons for this are few, but varied.

    For my part, I can name 2 reasons. 1)The docket at PACER was not properly reporting the filings and 2)RECAP was not properly updating the Internet Archive when the docket did show movement. Hopefully, that has all been resolved, as not only PACER but RECAP are now working (for this case - there remain problems with RECAP on a few other cases).

    I amm indebted to Sean Brady in starting the thread at TFL.

    The City and County of San Francisco have a Safe Storage law, that while somewhat dissimilar to that of D.C. It is the practical effect that this case hinges on.

    In the D.C. case, you may recall, handguns were required to be unloaded and locked (with trigger locks or in a safe) or disassembled. The result of that ordinance was that you could not have immediate access to your defensive firearm, should the it arise that you needed it for self defense.

    The Supreme Court in Heller reasoned that part of the 2A rights was to have a ready and operable firearm in case of confrontation where one arguably needs it most, at home. This made that particular ordinance unconstitutional on its face under any level of scrutiny used to define enumerated rights.

    The difference in the San Francisco laws are that you can have a ready and operable firearm in your home, but only as long as the firearm was in your immediate possession and control. Otherwise, the firearm must be disabled or locked away.

    The practical effect is that unless your firearm is strapped to your side, it must be stored in an approved safe manner. It does not matter if there are children, felons, mentally unstable persons, etc. at home or not. How many of you sleep with a gun strapped on? That is the only manner you can keep the firearm wholly operable, at those times.

    Even with the above exception (which is only a very minor step away from Heller), the law in San Francisco City and County have the same practical effect as the law in D.C. that was struck down.

    In the MJP, the plaintiffs hammer the defendants with the Heller case, time and time again.

    Here, because this is a slight step away, the plaintiffs argue that if any scrutiny is needed to resolve the constitutionality of the ordinance, then strict scrutiny applies.

    In part IV of the pleading, the plaintiffs advance the corollary theories that the individual not only has the right to purchase a firearm, but the right to purchase effective self defense ammunition. These corollary rights are assumed to exist for the simple reason that without them, the right to self defense with an operable firearm is meaningless.

    San Francisco ordinance Section 613.10(g) bans the sell of any ammunition that does not have a sporting purpose.

    Again, the plaintiffs go back to Heller and pound the defendants with the clauses pertaining to "common use." As we all know, modern self defense ammo (hollow points, of one form or another) is much more effective at stopping an aggressor than are FMJ. Less chance of completely penetrating to injure what lies beyond the target and less chance of ricochet.

    The plaintiffs make the case that the police themselves use this form of ammunition for the very same reasons it is commonly used and preferred by citizens for their own self defense. It can be no defense to say that residents of SF can go elsewhere to buy their ammo (see Ezell).

    Nor can it be a defense to state that public safety requires the use of a more dangerous form of ammo, because the city doesn't want injuries to the victims be greater (does beg the question of just who the City considers the victim to be - the aggressor or the one who must defend themselves from the aggressor).

    It is not even a defense to claim sporting purposes (even when left undefined, as the City does here), when self defense and militia duty can not be a "sporting purpose" in any sense of the term.

    The plaintiffs again argue that the ordinance fails any form or scrutiny, but if one must be used, then strict scrutiny applies as the ordinance reaches to the core of the right.

    Of course, if you have bothered to read the response, the City and County deny everything.

    The plaintiffs reply is due on June 21st, if I have my dates correct.

    Should the district court deny the MJP, it still serves the purpose of paving the way towards a MSJ, in which the facts (as laid out in the MJP) can be expanded upon and more fully briefed.


    The MJP can be found here: http://michellawyers.com/wp-content...ion-for-Partial-Judgment-On-The-Pleadings.pdf
    The response is here: http://www.archive.org/download/gov.uscourts.cand.215014/gov.uscourts.cand.215014.127.0.pdf
     

    EL1227

    R.I.P.
    Patriot Picket
    Nov 14, 2010
    20,274
    An idea for an enterprising entrepreneur ?

    The practical effect is that unless your firearm is strapped to your side, it must be stored in an approved safe manner. It does not matter if there are children, felons, mentally unstable persons, etc. at home or not. How many of you sleep with a gun strapped on? That is the only manner you can keep the firearm wholly operable, at those times.

    Padded holsters or foam pillows with handgun contoured relief and a shoulder strap ? Wouldn't that piss off the polticos of SF ...

    Of course, your significant other may object. :innocent0
     

    Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Yesterday, the plaintiffs filed their reply brief for their MJP: http://michellawyers.com/wp-content...al-Judgment-on-the-Pleadings-Exhibits-A-1.pdf

    The brief is 75 pages of which only the first 20 pages are the rebuttal of San rancisco's opposition. The rest are appendices.

    Additionally, Sean Brady of Michel & Associates has made available all the pleadings in this case, public. You can find them at: http://michellawyers.com/guncasetracker/jacksonvsf/

    Interesting read. Thanks for the post
     

    krucam

    Ultimate Member
    Handguns in the home must be in a lockbox. If not in the lockbox in the home, the owner must have it in a holster (no laying it around). Wow, what's wrong with this picture??

    ...if law-abiding adults desire to keep an unlocked firearm in their homes at night, they
    must sleep with it in a holster attached to their bodies.

    The law requires Plaintiffs, under
    threat of criminal penalty, to choose between locking up their handguns through the night when
    they are at highest risk for attack, or sleep with their loaded guns strapped to their bodies. (Defs.’
    Opp’n 10:2-7.) The “choice” is as false as it is absurd.
    FAIL

    The FMJ requirement (no HP ammo) might be a little harder argument, but it looks like they're handling it well under "common use" standards. Folks in NJ will be interested in the outcome of the HP aspect.

    I see a win, which has surely doomed them...
    :)
     

    MJD438

    Ultimate Member
    MDS Supporter
    Feb 28, 2012
    5,849
    Somewhere in MD
    Handguns in the home must be in a lockbox. If not in the lockbox in the home, the owner must have it in a holster (no laying it around). Wow, what's wrong with this picture??

    Nice Morton's Fork in that section of law...will be interesting to see if it actually gets addressed/resolved.
     

    md_rick_o

    Ultimate Member
    MDS Supporter
    Sep 30, 2008
    5,112
    Severn Md.
    I have read through this stuff and can't see Frisco winning. of course IANAL and really don't see that the argument of the requirements not interfering with a persons 2nd amendment rights passes the sniff test. How can it being in a safe or disabled with a lock not hinder its use in self defense.
     

    SilverBulletZ06

    Active Member
    May 31, 2012
    102
    First Chicago and now SF advocating for strict scrutiny or higher "historical review". Pretty interesting that we are finally getting 1A protections for the 2A.
     

    krucam

    Ultimate Member
    TFL and Calguns have reported the recent activity in Jackson v SF.

    08/30/2012 136[RECAP] MOTION for Preliminary Injunction Notice of Motion and Motion For Preliminary Injunction; Memorandum of Points And Authorities In Support filed by Larry Barsetti, Thomas Boyer, Paul Colvin, David Golden, Espanola Jackson, National Rifle Association of America, Inc., Noemi Margaret Robinson, San Francisco Veteran Police Officers Association. Motion Hearing set for 10/4/2012 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 9/20/2012. Replies due by 9/27/2012. (Attachments: # 1[RECAP] Declaration Declaration of Clinton B. Monfort In Support of Motion For Preliminary Injunction, # 2 Declaration Declaration of David Golden In Support of Motion For Preliminary Injunction, # 3 Declaration Declaration of Espanola Jackson In Support of Motion For Preliminary Injunction, # 4 Declaration Declaration of Larry Barsetti In Support of Motion For Preliminary Injunction, # 5 Declaration Declaration of Noemi Margaret Robinson In Support of Motion For Preliminary Injunction, # 6 Declaration Declaration of Sheldon Paul Colvin In Support of Motion For Preliminary Injunction, # 7 Declaration Declaration of Thomas Boyer In Support of Motion For Preliminary Injunction, # 8 Declaration Declaration of Anna M. Barvir In Support of Motion For Preliminary Injunction, # 9 Exhibit A, # 10 Exhibit B, # 11 Exhibit C, # 12 Exhibit D, # 13 Exhibit E, # 14 Exhibit F, # 15 Exhibit G, # 16 Exhibit H, # 17 Exhibit I, # 18 Exhibit J, # 19 Exhibit K, # 20 Exhibit L, # 21 Exhibit M, # 22 Exhibit N, # 23 Exhibit O, # 24 Exhibit P Part 1, # 25 Exhibit P Part 2, # 26 Exhibit Q, # 27 Exhibit R, # 28 Exhibit S, # 29 Exhibit T, # 30 Exhibit U, # 31[RECAP] Exhibit V, # 32[RECAP] Exhibit W)(Michel, Carl) (Filed on 8/30/2012) (Entered: 08/30/2012)

    Motion for PI: http://www.archive.org/download/gov.uscourts.cand.215014/gov.uscourts.cand.215014.136.0.pdf

    Docket: http://ia600404.us.archive.org/18/i...d.215014/gov.uscourts.cand.215014.docket.html

    A Hearing on this Motion is scheduled for 10/4/12. The City's response is due 9/20, Plaintiff's reply 9/27.

    This represents an acceleration to this case about home ownership restrictions and possession of hollow point ammo in San Francisco.
     

    SilverBulletZ06

    Active Member
    May 31, 2012
    102
    Interesting stepping stone. SCOTUS killed "sporting"-anything IIRC. Ditto for locked storage. Good stepping stone to getting rid of other restrictions.
     

    Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho
    In the list of cases, krucam has list #7 Pizzo v. Newsom, which is a pro se Gorsky case. That case was filed shortly after this case was filed.

    In updating my own case list, I updated the Pizzo docket (which I hadn't done in quite some time). The last time I had looked at that case, the NRA had been granted amicus curiae status by the court (back in May of 2011). Such a status allows the amicus to file their brief when they feel it's an appropriate time to file, without any further motions on their part.

    During the intervening time, San Francisco did its best to relate the cases and combine the Jackson case with the Pizzo case in the lead, putting the NRA behind him in some respects, and as a party to Jackson, the amicus status of the NRA would terminate. Chuck Michel (the CA NRA attorney) fought them off and retained status.

    Now up until July of this year, the NRA quietly stood back and said nothing to the Pizzo court. LCAV was allowed to file an amicus brief, but when the Brady Center requested to file, the Judge denied them! Then on July 18th, the NRA files its amicus brief for neither party!

    To get a real idea of how Chuck Michel views things, Read the brief: doc #103.

    Now, back to the Jackson case.

    Having failed the MPI, Chuck immediately files for an MPI (prelim injunction). Among the authorities Chuck uses is Massad Ayoob: Declaration of Massad Ayoob In Support of Plaintiffs’ Reply To Defendants’ Opposition to Motion for Preliminary Injunction

    The hearing for this was help back on Oct. 9th. Michel & Assoc. have made the transcript available: Motion for Preliminary Injunction Hearing Transcript for October 9, 2012

    Now we wait.
     

    Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho
    Monday, the court in Jackson v. San Francisco denied a preliminary injunction.

    Jackson-MPI Denied

    In denying, Judge Seeborg said this about the ammo restriction:

    Even assuming a constitutional right to possess and use the particular types of ammunition within the ambit of section 613.10(g) could be found, plaintiffs simply have not shown that prohibiting sales of such ammunition within City limits imposes a substantial burden on their ability to acquire it.

    In this, the Judge ignores what the CA7 said in Ezell and essentially agrees with the IL district Judge - People can go elsewhere to obtain their ammo (or get training at a firing range).

    Since the CA9 has given no recognition to Ezell, in Nordyke (the only case that the Judge can cite), the Judge is possibly correct, at this point in litigation.

    As for the storage requirements, Judge Seeborg says:

    Plaintiffs have offered only the possibility that in a very narrow range of circumstances, the delay inherent in rendering a handgun operable or in retrieving it from a locked container theoretically could impair a person’s ability to employ it successfully in self-defense. Even assuming this rises to the level of a “substantial” burden, however, thereby triggering some heightened degree of scrutiny, plaintiffs have not shown the regulation to be overreaching or improper in any way, or that it fails to serve a legitimate governmental interest. Indeed, as noted in Heller itself, nothing in its analysis “suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” 554 U.S. at 632.


    This ignores the Heller Courts pronouncement on the storage laws of D.C. completely (that law was found to be unconstitutional and is very close - almost identical - to the law being challenged in San Francisco). Here, it is clear that Judge Seeborg is selectively reading Heller.

    I expect that Michel & Assoc. will appeal this ruling - They virtually asked for it in their oral argument.
     
    Last edited:

    krucam

    Ultimate Member
    Reminder that this case is over San Francisco policies over 1) Hollow Point ammo, and 2) Securing of arms within the home UNLESS it is on your person...this includes while in bed or in the shower.

    In the bulls eye of Heller IMHO.

    The case has just completed briefing and awaits the scheduling of Oral arguments at a very, very crowded CA9.

    There was an unsuccessful attempt to align another case, Young v Hawaii. The opening brief at CA9 was in Feb, the final reply brief was filed yesterday. There were a number of amici for both sides as well.

    Thanks to the counsel, Michel & Associates and the NRA for supporting this case AND for hosting all of the case filings to date at:
    http://michellawyers.com/guncasetracker/jacksonvsanfran/
     

    Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho

    krucam

    Ultimate Member
    My apologies Mark, for not updating this in a timely manner.

    The Appellants Reply Brief is a very well written brief that coalesces the entire argument(s) into their individual components. If you read nothing else on this case, this is the brief to read.

    In other news, California Lawyer, Chuck Michel, Honored with NRA Defender of Justice Award. It is an award that Chuck and his associates richly deserve for their efforts on behalf of Californians and all of our 2A rights.

    No apologies necessary, Al. We all appreciate your input. I have to apologize for being negligent, but I have a fairly good excuse...having to get quals and certs up to speed with my new job with the FAA in TX. A 2 month school is also coming up in late-June.

    That said, I hope to get back into this more actively later this summer....
     

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