Cities of Charleston and Martinsburg File Motions to Dismiss WVCDL Lawsuits, Expose Weaknesses of Their Cases and Strength of WVCDL's Cases

Yesterday, the "Charleston Defendants" in WVCDL's lawsuit challenging the constitutionality and statutory validity of a variety of local gun control ordinances in the cities of Charleston, south Charleston, and Dunbar filed a motion to dismiss.

  

Today, all defendants in WVCDL's lawsuit challenging the constitutionality and statutory validity of Martinsburg's city building gun ban filed a motion to dismiss.

  

Both motions to dismiss and other relevant documents in this cases are available here.

  

Before I receive questions, we did not make any mistakes in posting the 2 motions to dismiss and their supporting briefs on WVCDL's web site.  Charleston and Martinsburg did make identical--and equally laughable--claims that WVCDL and its members do not have "standing" to sue because there is allegedly no real, credible, and immediate threat of criminal prosecution of any of you if you choose to violate the ordinances that WVCDL is challenging.

  

These arguments are factually absurd and grossly misstates the legal standard for "pre-enforcement challenges" to a law.  The arguments made by both Charleston and Martinsburg concerning their allegations that WVCDL and its members lack standing to sue are absurd.

  

Dick Heller (who we are proud to call a fellow WVCDL member) did not have to unlawfully bring his handgun into the District of Columbia, illegally possess it, and argue his successful challenge to DC's former handgun ban from a jail cell.  Neither did Otis McDonald in his successful challenge to Chicago's former handgun ban.

  

In Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), the Supreme Court of the United States, in an opinion written by Justice Scalia, held 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."

  

I encourage you to click the previous link and read pages 11 and 12 of the PDF file.Please note that if you choose to read the Charleston and Martinsburg motions to dismiss, the  extensive body of case law they cite in support of their arguments almost entirely predates the Supreme Court's decision in Medimmune v. Genentech.

  

In addition to their baseless arguments on the issue of standing, the Charleston Defendants attempted to mount a defense of the legality of Charleston's ordinances under state law. However, in doing so, they confirmed WVCDL's view that those ordinances are without appropriate statutory authority to be valid as a matter of state law. Martinsburg, on the other hand, did not even attempt to mount a defense of its ordinance.

  

These recent filings confirm WVCDL's belief in the strength of its cases.  Soon, the courts will enter scheduling orders specifying the time frame for briefing and oral arguments and a ruling on this motion. This, however, will be just one of many steps in the litigation process.

  

Finally, in light of the allegations by both Charleston and Martinsburg that WVCDL and its members apparently do not face a real, credible, and immediate threat of criminal prosecution under any of the ordinances that are being challenged, WVCDL and the other plaintiffs have extended both cities very generous offers to settle their respective cases. Both Charleston & Martinsburg have been extended settlement offers under which they would agree to repeal the challenged ordinances.  After all, if Charleston and Martinsburg are not enforcing their ordinances and WVCDL's members have nothing to fear--as Charleston & Martinsburg appear to want make the courts believe, at least for the purposes of WVCDL's lawsuits--then why not go ahead and resolve this unfortunate misunderstanding and cleanse their respective city code books of what are apparently just dead letters?

  

At least we can dream.  WVCDL's legal cases are strong and we are confident of victory, no matter how long it takes.

Manchin Noncommittal on Traver Nomination

Our new U.S. senator, Joe Manchin is noncommittal on President Obama's nomination of anti-gun zealot Andrew Traver to be Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

  

This is the same Joe Manchin who ran an infamous TV ad last fall in which he killed two birds with one stone by touting his NRA endorsement and highlighting his opposition to Cap and Trade legislation by nailing a copy of the bill to a tree and using it for target practice.

  

Well, Joe, 4 days after you were sworn in as our newest United States senator, the NRA--whose endorsement you so highly touted in your "Dead Aim" TV ad--took dead aim at the Traver nomination. Meanwhile, the Brady Bunch praised it.  However, 4 months later, you still have not taken a position--much less kept your promise to "always defend West Virginia."

  

The following is a letter Senator Manchin sent me responding to an e-mail I personally sent him and Senator Rockefeller (from whom I don't expect as response since Rockefailure is an anti who has well-deserved F ratings from NRA and GOA):

  

  

Dear Mr. Mullins,

  

Thank you for contacting me and sharing your concerns about the President's nomination of a new Director of the Bureau of Alcohol, tobacco, Firearms, and Explosives (ATF).  Hearing from West Virginians is very important to me, and I appreciate your input on this issue.

  

The nominee, Andrew Traver, is currently the Special Agent in Charge (SAC) of the ATF's Chicago Field Division. As you know, the Director of the ATF is appointed by the President, but his nomination is subject to confirmation by the full Senate. While the nomination of Andrew Traver has not yet come up for a vote, please be assured that I will keep your concerns in mind as I follow this confirmation process closely.

  

Again, thank you for taking the time to add your voice to this important discussion. If I may be of further assistance to you, please do not hesitate to contact my office.

  

With Warmest Regards,

  

Joe Manchin III

United States Senator

  

Photo added for truth-in-advertising purposes.

ACTION ITEM: Tell Senator Manchin to OPPOSE Traver Nomination

Since Senator Joe Manchin is noncommittal on President Obama's nomination of anti-gun zealot Andrew Traver to be Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, it is obvious that he needs to "hear from West Virginians" and receive out input on this issue.

  

Please click on one of the following links and either sign a pre-written message or write your own message telling Senator Manchin that you OPPOSE the nomination of Andrew Traver to be the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives:

Who Needs a Gun in Downtown Charleston?

In 2008, WVCDL was the only organization to speak out in opposition to a proposed Lottery Commission rule to prohibit carrying at West Virginia's 4 racetrack casinos. Thanks to our work, the Legislature rejected this proposed rule.

  

  

March 14, 2011

Woman admits robbery in casino parking lot

 

By Andrew Clevenger
The Charleston Gazette

CHARLESTON, W.Va. -- A Charleston woman admitted in Kanawha Circuit Court Monday that she robbed a woman in the parking lot of the Mardi Gras Casino and Resort in July.

Ashli Logan Burdette, 27, pleaded guilty to first-degree robbery, saying she held up the 19-year-old woman and took her purse.

Burdette told Judge Charles E. King Jr. that she took her mother's gun and robbed Tifany Workman during broad daylight at 9:30 a.m. on July 27. The gun was not loaded, as she kept it in her pocket, but she made sure Workman knew it was there, she said.

"I walked up to her window, and I told her to give me her purse, and I took it and ran," she said.

Burdette said she took Workman's bank card, driver's license and Social Security card from the purse, which she hid behind a trash can on Charleston's East End. She then went to a bank, took $3,000 and bought oxycodone pills with the money, she said.

There was cash in Workman's wallet, but Burdette said she overlooked it in her haste.

Workman, a college student who was 19 at the time of the robbery, wrote down the license plate and make of car that Burdette fled in, and turned it over to police. Working with casino security footage, members of the Kanawha County Sheriff's Department were able to identify and arrest Burdette within 24 hours.

A Kanawha County grand jury indicted Burdette the same week.

As part of the plea deal, Kanawha County assistant prosecutor Erica Lord agreed to dismiss charges of forgery and uttering, identity theft and obtaining by false pretenses.

Defense attorney Barbara Brown said the state had also agreed to prosecute the first-degree robbery without a legal finding that Burdette used a gun, which means that if sentenced to prison, she will become eligible for parole in a shorter time.

It also allows King to impose an alternative sentence instead of a prison sentence, which carries a minimum of 10 years in prison. Brown said she intended to ask King to consider probation for Burdette, who has participated in a 28-day inpatient drug treatment program and ongoing outpatient treatment since October.

"I am concentrating on my rehabilitation [from drugs] right now," Burdette, a former member of the U.S. Army Reserves, told the judge.

"How are you progressing?" he asked.

"Very well, sir," she answered.

"You're not cheating?"

Burdette said that she was not.

Lord said that Burdette may also have to pay restitution, but that a dollar figure, including how much Burdette took from the victim's accounts, and the cost of any counseling the victim may need, has not been calculated.

King scheduled Burdette's sentencing for April 26.

Reach Andrew Clevenger at aclevenger@wvgazette.com or 304-348-1723.