SAF SUES IN MARYLAND OVER HANDGUN PERMIT DENIAL UPDATED 3-5-12

The #1 community for Gun Owners of the Northeast

Member Benefits:

  • No ad networks!
  • Discuss all aspects of firearm ownership
  • Discuss anti-gun legislation
  • Buy, sell, and trade in the classified section
  • Chat with Local gun shops, ranges, trainers & other businesses
  • Discover free outdoor shooting areas
  • View up to date on firearm-related events
  • Share photos & video with other members
  • ...and so much more!
  • Status
    Not open for further replies.

    swinokur

    In a State of Bliss
    Patriot Picket
    Apr 15, 2009
    55,394
    Westminster USA
    nonsense, CharlieFox is right. The law is the law. If it unconstitutional under 1983 in a civil suit, then it is unconstitutional to enforce that same law in a criminal prosecution. See, e.g., Bond v. United States, 131 S.Ct. 2355 (2011) (holding a criminal defendant has standing to challenge the constitutionality of a statute which was the basis of her prosecution).

    He claimed the appeals court denied his appeal because he stated the arrest at the airport was illegal based on FOPA. The criminal charge was dismissed but he appealed the arrest as a 1983 violation.

    The appeals court refused the appeal saying the arrest was not illegal because he could not use FOPA as an affirmative defense because he took possession of his luggage with a firearm in it.

    So in the same circumstances if a person does the same thing and is charged criminally, doesn't the court's reasoning and decision from the civil case also apply to a criminal charge?
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    He claimed the appeals court denied his appeal because he stated the arrest at the airport was illegal based on FOPA. The criminal charge was dismissed but he appealed the arrest as a 1983 violation.

    The appeals court refused the appeal saying the arrest was not illegal because he could not use FOPA as an affirmative defense because he took possession of his luggage with a firearm in it.

    So in the same circumstances if a person does the same thing and is charged criminally, doesn't the court's reasoning and decision from the civil case also apply to a criminal charge?

    I would like to see the opinion. Some courts have held that FOPA is not a federal right within the meaning of Section 1983 and thus no 1983 suit lies at all. See Torraco v. Port Authority of New York and New Jersey, 615 F.3d 129, C.A.2 (N.Y.), June 30, 2010. The case your friend is referring to is probably Revell v. Port Authority of New York, New Jersey, 598 F.3d 128, C.A.3 (N.J.), March 22, 2010, where the court held that the plaintiff did not have a 926A claim because his conduct took him outside 926A's coverage.

    To answer your question directly: The court's legal ruling in a civil case is a statement of the law and the law is the same in criminal and civil cases. If the civil court found that a statute was unconstitutional, and that holding is res judicata or was otherwise binding precedent (district court decisions are not binding on any court, including that district court) then that statute cannot be enforced in a criminal case. But the variations in facts are endless, so I would have to see the opinion and the actual circumstances. In the case you described Revell, the criminal charges were ultimately dismissed but the court nonetheless held that he was outside 926A coverage by staying in the hotel room.
     

    swinokur

    In a State of Bliss
    Patriot Picket
    Apr 15, 2009
    55,394
    Westminster USA
    So would I be correct in saying if you take possession of your luggage in NYC with the firearm inside, I may no longer have FOPA protection because of the decision in the civil case or is it a whole new process? I assume many courts and juries would use the same line of reasoning even in a criminal proceeding.

    Or is it something we cannot predict?

    ETA wasn't Revell a Circuit decision, and thus has an impact on District courts in NJ?

    ETA NJ not NY
     
    Last edited:

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    Wow...when was this? Just after the Woollard ruling? It took me about 30 days as well from app sent to permit received (that was two years ago as well).

    Just after the Woollard ruling. Still waiting for the FL license I applied for in April. They sent me a letter 3 weeks ago, demanding $42 for print processing. Never heard of that charge, but I sent them a check. Must be because my prints were ink (practically mandatory for out of state applicants). Their website didn't mention that charge.
     

    yellowsled

    Retired C&R Addict
    Jun 22, 2009
    9,348
    Palm Beach, Fl
    Pleasant interview at Westminster Barracks. 45 min, usual questions. The Sgt did say that he was for 2a, but as a police officer he would like to have open carry vs. conceal carry.

    I told him my concerns of open carry, and parted on great terms. We can use more police officers like him. Sadly he was tasked to do this job because he was hurt and was not able to be in the field.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    So would I be correct in saying if you take possession of your luggage in NYC with the firearm inside, I may no longer have FOPA protection because of the decision in the civil case or is it a whole new process? I assume many courts and juries would use the same line of reasoning even in a criminal proceeding.

    Or is it something we cannot predict?

    ETA wasn't Revell a Circuit decision, and thus has an impact on District courts in NY?

    Revel was a 3d circuit decision which isn't binding in NY, but is persuasive precedent. As to taking possession of your firearm in NYC, FOPA is a defense to criminal charges. If you fall within its terms, you have a complete defense to criminal charges. Torrace merely holds that if the police violate FOPA, you have no civil 1983 damages remedy for that violation. Your criminal charges still get dismissed (assuming that you fall within FOPA terms). That you have no 1983 civil remedy is immaterial to the defense 926A gives you to criminal charges.

    As to taking possession at a NYC airport. A suggestion: Don't, unless it is legal for you to carry in NYC. Remember that FOPA requires that the handguns and ammo be inaccessible to you while you travel. When you pick up your guns at the airport, the handgun is accessible to you. Lesson: Don't fly into NY with your guns, drive and drive in compliance with Section 926A. Read the Torrace opinion. It is very interesting. Attached.
     

    Attachments

    • opinion.Torraco615_F_3D_129_6-19-12_1259.92Arights.pdf
      129.6 KB · Views: 151

    swinokur

    In a State of Bliss
    Patriot Picket
    Apr 15, 2009
    55,394
    Westminster USA
    I read all those. That's why this guy's argument that Revell had no bearing on another criminal charge seemed not quite right.

    Best to follow your advice and precedent.

    Gosh this lawyering stuff can be convoluted.

    Thank you.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    It used to 117 dollars total. Maybe the print charge was an FBI background check?
    That's my guess. FL residents can do livescan, which is much easier to use for the state and much faster for the FBI system. Oh well. What's another couple of months of wait....:sad20:
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    I read all those. That's why this guy's argument that Revell had no bearing on another criminal charge seemed not quite right.

    Best to follow your advice and precedent.

    Gosh this lawyering stuff can be convoluted.

    Thank you.

    That's an understatement! Certainly, Revell's construction of 926A in the civil case will be binding precedent in a criminal prosecution where the defendant is seeking to raise 926A as a defense. So, yes of course, a civil court decision on the scope of the Section 926A can be used in a criminal case to that extent. The scope of 926A is the same in either a civil court or a criminal court. As to whether Torrace was right in holding that 926A bestows no 1983 enforceable rights is a different and still unsettled question in other circuits. See the concurrence in Torrace.
     

    Patrick

    MSI Executive Member
    Apr 26, 2009
    7,725
    Calvert County
    One thing to consider, though...

    In the intervening gap, would MSP be required to begin issuing permits based on apps that are in process (and probably already past their 90 days)? And would a failure to do so be considered to be in contempt of Legg's ruling?

    Ignoring the contempt question, the MSP will need to begin issuing permits unless they have a stay in effect from some jurisdictional authority, somewhere. The Maryland Courts cannot stay this, only a federal court above the District can do this. I expect we'll see Gansler and crew ask the 4th for a stay. But legally, the MSP must issue in the intervening time. If an emergency stay is not granted by the 4th, they must issue.

    The people at the MSP are bound by the law. Even if they wish they didn't need to follow it, they will. If we hope anything of the MSP folks, it is that they follow they law in letter and spirit. If I were the people in charge over there, I would ask the AG and Governor's office for any unofficial foot dragging to be made in writing. Then they have their collective asses covered.

    Simple fact: if you ask a politician to ever go on record for something controversial, you will almost always find them too cowardly to do so. People like the governor and the AG like to let the little people do the dirty work for them (and take the hits for it). If the little people ask for direction in writing, the political class will never put themselves at risk. I have been on the receiving end of this multiple times. My request has always been to put my instructions in writing. It's amazing what a couple of emails will do. The other side tends to never respond.
     

    Mike OTDP

    Ultimate Member
    Feb 12, 2008
    3,318
    I'm betting that even if Legg lifts the stay, the state will drag its feet until CA4 categorically refuses to grant a stay of their own.

    Stupid, really. They are in the same position as the states trying to hold onto segregation in the 1960s. Forty states have shall-issue (or better). The whole "blood in the streets" argument has been thoroughly discredited. They can either get with the program, or get clobbered with an equivalent of the Voting Rights Act. Something that either categorically strips the state of any authority to reguate firearms, or requiring a Federal court to approve any law - with the burden of proof on the State to prove Constutionality.
     

    OnTarget

    Ultimate Member
    Mar 29, 2009
    3,154
    WV
    I wonder, while we're sitting around patiently waiting for Judge Legg's decision on the stay, do you think MD. State is doing the same?
     
    Status
    Not open for further replies.

    Users who are viewing this thread

    Latest posts

    Forum statistics

    Threads
    274,919
    Messages
    7,258,879
    Members
    33,349
    Latest member
    christian04

    Latest threads

    Top Bottom