WVCDL Files Responses to Motions to Dismiss Charleston, South Charleston, Dunbar, and Martinsburg lawsuits

On January 24, 2011, WVCDL filed a lawsuit in the U.S. District Court for the Southern District of West Virginia against the cities of Charleston, South Charleston, and Dunbar, and their respective mayors and police chiefs, challenging the constitutionality and statutory validity of ordinances in each of those cities prohibiting carrying a firearm on city-owned property. Additionally, WVCDL is challenging the constitutionality of Charleston's restrictive handgun sales ordinances.

On March 28, 2011, the Charleston Defendants filed a motion to dismiss and supporting brief. On April 15, 2011, the South Charleston & Dunbar defendants filed separate motions to dismiss and supporting briefs. Also on April 15, 2011, the Brady Center to Prevent Gun Violence filed an amicus curiae brief in support of all defendants.

Separately, on January 24, 2011, WVCDL filed a lawsuit against the City of Martinsburg, its mayor, its city manager, and its police chief in the U.S. District Court for the Northern District of West Virginia, challenging the constitutionality and statutory validity of a Martinsburg ordinance prohibiting carrying a firearm in city-owned buildings. On March 29, 2011, the Martinsburg Defendants filed a motion to dismiss and supporting brief.

  

Recently, WVCDL filed its responses to the 4 pending motions to dismiss, which you can view online here along with all other major case documents.

  

In a nutshell, all 4 municipal defendant groups are desperate to avoid the merits of WVCDL's cases and have made absurd arguments regarding the plaintiffs' standing to sue that is contrary to Supreme Court precedent.  Secondarily, the attempts by Charleston, South Charleston, and Dunbar to justify their ordinances (Martinsburg made no meaningful defense of its ordinance on the merits--just a generic "show us your legal theory" demand) have confirmed our belief in the strength of our case--particularly on our state law claims concerning the lack of appropriate statutory authority for the challenged ordinances.

  

Even though they have hired some of the best (and most expensive) lawyers in West Virginia to defend their ordinances, the best the City of Charleston has been able to produce to justify its handgun sales ordinances (the 3-day waiting period, one-handgun-per-month purchase limit, mandatory registration, and additional classes of prohibited purchasers beyond what state and federal laws prescribe) against WVCDL's state law challenge is a citation to a section of the West Virginia Code that deals with building, housing, plumbing, sanitary, electrical, and fire prevention codes--which plainly has nothing to do with authorizing local gun control ordinances!  As you will see in the story below, the author of Charleston's gun control ordinances that we're challenging is so confident they'll withstand our challenge that he's racing to amend them before our case is heard.

The Charleston Defendants say there's no imminent threat of arrest or prosecution.

  

Although most legal documents are admittedly boring--if not downright incomprehensible--to nonlawyers, we think you will find the briefs that have been filed to be very enlightening.  You may click the link above to view them.

  

We are still a long way from the conclusion of these cases and will keep you informed about major developments as they occur.

Charleston Gazette Coverage of Charleston's Motion to Dismiss

WVCDL's lawsuit against the City of Charleston is an excellent example of how gun rights issues are nonpartisan in West Virginia.  Both Mayor Danny Jones and City Council President Tom Lane (who have endorsed each other's respective reelection campaigns in the May 17 city election) are Republicans, as is South Charleston Mayor Frank Mullens.

  

  

April 25, 2011

City asks judge to dismiss gun law challenge

 

By Jim Balow
The Charleston Gazette

CHARLESTON, W.Va. -- Lawyers for the city of Charleston have asked a federal judge to dismiss a legal challenge to the city's 18-year-old gun laws.

Mayor Danny Jones, Police Chief Brent Webster and the city, through lawyer Ben Bailey of Bailey & Glasser, filed a motion in U.S. District Court late last month, asking Judge John Copenhaver to throw out a suit by the West Virginia Citizens Defense League.

The cities of Dunbar and South Charleston, in separate motions on April 15, have also asked Copenhaver to dismiss the WVCDL case, which seeks to overturn gun laws in all three cities.

Meanwhile, city leaders want to amend Charleston's current gun laws by taking out an obsolete section and tightening other language, said City Council President Tom Lane, the author of the 1993 gun ordinance. [JM: Tom Lane is so supremely confident of the validity of his, er, the city's, ordinances that he's racing to amend them before the court gets around to hearing our case. Also, may I point out that Mr. Lane is a partner in the law firm of Bowles, Rice, McDavid, Graff & Love--which represents the City of Martinsburg and in which anti-gun Senate Judiciary Committee Chairman Corey Palumbo, D-Kanawha, is also a partner.]

 

City Attorney Paul Ellis said he didn't want to comment specifically about Charleston's motion to dismiss the case.

"I think it speaks for itself," Ellis said Monday. "I don't comment on motions before the federal court, and we're waiting for a response from the plaintiff which I believe is overdue."

The WVCDL suit was filed amid a flurry of challenges to gun laws across the country after two recent U.S. Supreme Court decisions, Bailey said in his memorandum in support of the motion to dismiss.

But later court interpretations suggest those rulings don't affect Charleston's gun laws, he said.

Charleston was fully authorized to restrict gun sales in 1993, six years before the state Legislature passed a law limiting municipalities' rights to limit handguns, Bailey said. "Significantly for purposes of this case, that law exempted any municipal ordinance in place as of its effective date," he wrote.

Bailey also argued that none of the WVCDL members named in the suit have legal standing to challenge the city's law, and no one demonstrated he or she was harmed by the law.

"There is no express allegation in the Amended Complaint that any Plaintiff has been denied his or her right to keep and bear arms," he wrote. "On the contrary, the Plaintiffs allege that they do exercise those rights."

  

Lane said he wrote the city's current gun law after a series of bloody homicides in the early 1990s, as a way to curb the guns-for-drugs trade popular then.

In particular, he recalls a double homicide that took place during a City Council meeting on a warm night in May 1993 at the former City Life bar on Summers Street.

"It's my recollection we came out of City Hall and Summers Street was all lit up with blue from the police cars," Lane said. "I distinctly remember all the sirens. One of the men staggered out of the bar and died in the street, with blood running down the gutter."

Several months later, over objections from some of the same people seeking to overturn the law now, council members agreed to impose a 72-hour waiting period on all handgun sales.

The law also limits sales to one handgun per month, and requires a background check before purchase.

Council members now want to bring the law up to date, Lane said. He hopes to introduce a bill by the next council meeting on May 2.

One change would eliminate a section that says it's illegal to carry a handgun or other weapon in the "Sternwheel Regatta area" during the 10 days leading up to Labor Day.

"Without a Regatta, that ordinance is not necessary," Lane said.

Other changes would tweak language that restricts gun sales to convicted felons and people recently treated for mental health. Non-violent felons would be allowed to buy handguns, Lane said.

He said he's pleased with the petition to dismiss the lawsuit. "Realistically it's hard to get a case dismissed on a motion, but they make good arguments."

Reach Jim Balow at balow@wvgazette.com or 304-348-5102. 

Martinsburg Journal Coverage of Martinsburg's Motion to Dismiss

  

Martinsburg answers gun law charges

 

W.Va. Citizens Defense League says ordinance violates constitution

 

April 28, 2011

By John McVey - Journal staff writer , journal-news.net

MARTINSBURG - Responding to a lawsuit contesting Martinsburg's gun laws, the city argues that the plaintiff has no standing to bring the suit and therefore, the suit should be dismissed, Kin Sayre, Martinsburg's legal counsel, said.

"Under the constitution, you do not argue theoretical cases - what ifs," he said in a telephone interview Wednesday. "There is no case in controversy. We feel the judge will dismiss it."

The suit challenging the city's ordinances forbidding guns in city hall and other city properties was filed in January by the West Virginia Citizens Defense League in U.S. District Court for the Northern District of West Virginia in Martinsburg.

Mayor George Karos, City Manager Mark Baldwin and Police Chief Kevin Miller also are named as defendants in the suit.

WVCDL also brought a similar case against Charleston, South Charleston and Dunbar at the same time in U.S. District Court for the Southern District of West Virginia.

The suit against Martinsburg claims that the city's gun laws violate both the U.S. and West Virginia constitutions' due process clauses and a citizen's right to keep and bear arms as well as arguing that the city's ordinance is overridden by state statute and is not authorized by state statute.

In its response, the city maintains that no WVCDL member has been harmed by the law, so there is no case.

"Plaintiffs (that is WVCDL) contend that: 'WVCDL has members throughout the State of West Virginia, including many members who reside in or frequently visit the City of Martinsburg, and one or more members who are currently employees of the City of Martinsburg, but they do not allege that any individual member of the organization has suffered any actual injury stemming from the challenged ordinances," the city's response states.

Martinsburg's response was filed late last month.

Responses by Charleston, South Charleston and Dunbar also were filed late last month, arguing much the same thing - that WVCDL has no standing - and requesting that the suits be dismissed.

The Brady Center to Prevent Gun Violence has filed a "friend of the court" brief supporting the defendants, according to published reports.

WVCDL attorney James M. Mullins Jr. did not immediately return a telephone message asking for comment. [JM: I was out of my office when contacted and followed up by e-mail, in which I sent a copy of WVCDL's response to Martinsburg's motion to dismiss to Mr. McVey.]

 

The next step in the process is for WVCDL to file an answer to the cities' responses. No hearing dates have been scheduled.

- Staff writer John McVey can be reached at 304-263-3381, ext. 128, or jmcvey@journal-news.net

Brady Bunch Gives WV 4 Points on Annual Scorecard

On a scale of -2 to 100, West Virginia earned 4 points in this year's ranking of state gun laws by the Brady Bunch.

  

West Virginia got 2 points for "Employers not forced to allow firearms in parking lots" and 2 points for "Colleges are not forced to allow firearms on campus."  We also avoided a 2-point "demerit" because we have not yet eliminated the requirement of a license to carry a concealed weapon.

  

If the Legislature had passed WVCDL's West Virginia Gun Owner Protection Act of 2011, HB 3125/SB 543, during the 2011 regular session, West Virginia would have become the first state to earn the elusive score of -2.  The best (or worst, in the Brady Bunch's view) states are Utah (which earned a score of 0 but has not yet eliminated its permit requirement for concealed carry) and Alaska and Arizona (which have eliminated their concealed carry permit requirements but do not preempt state college & university administrative gun bans).

Who Needs a Gun at a Mall?

Just another reminder that you never know where or when crime will strike.

  

  

April 26, 2011

Daytime mall robbery an 'isolated incident,' police say

 

By Kathryn Gregory
The Charleston Gazette

CHARLESTON, W.Va. -- Police say a robbery in the parking garage of the Charleston Town Center Mall on Monday was an "isolated incident" and that detectives are close to arresting a suspect.

A woman reported that her purse had been stolen and she had been punched in the face around 1 p.m. Monday in one of the elevators in the mall's parking garage.

Charleston Police Detective J.F. Taylor, who is working the robbery case, said the time of the incident is "definitely unorthodox."

Taylor believes it was an "isolated incident" and a "crime of opportunity. It was right then, right there."

The woman said a man and woman followed her into an elevator and took her purse. They fled the elevator in opposite directions, and police recovered the woman's purse across the street in a hotel bathroom.

Monday's purse snatching is the third such incident reported at Town Center since Jan. 1, Taylor said. He said the other two have been solved and police expect to arrest someone in Monday's incident within the next 24 hours.

Police are looking for a black man between 5 feet 6 inches and 5 feet 10 inches tall, and between 200 and 230 pounds. Because the man allegedly punched the woman in the face, charges have been upgraded from purse snatching to strong-arm robbery.

Typically, purse snatchers are looking for cash or credit cards, "anything they can grab fast," Taylor said.

  

A Town Center representative, who asked not to be named because the police investigation is ongoing, said mall officials gave security camera footage of the incident and a witness account of the robbery to the police.

In the last year, the mall has increased the number of security cameras in the garage and mall and has encouraged more foot patrols by security officers. They have also increased the light level in the garage, the representative said.

Taylor said it's not uncommon to see a lot of people congregating on the steps and in the stairwells leading into the mall from the parking garage, but he doesn't think it's a big problem.

"You just have that one bad apple every once in a while," he said. "The biggest thing is, people should not be afraid to still go there."

Charleston police officers often work as security at Town Center Mall when they're off-duty, particularly in the summer and around Christmas, Taylor said.

He said in light of the "bold" robbery, people should "vigilant and aware of their surroundings."

"If something doesn't feel normal, just walk away from it."

Reach Kathryn Gregory at kathryng@wvgazette.com or 304-348-5119.

  

  

  

April 25, 2011

Woman robbed in Town Center Mall garage elevator

 

By Staff reports
The Charleston Gazette

CHARLESTON, W.Va. -- Charleston police say two people punched a woman in the face and stole her purse in the parking garage at the Charleston Town Center Mall.

Charleston Police Lt. Chuck Sisson said the woman was leaving Macy's when she got into one of the parking garage elevators on the Lee Street side of the garage around 1 p.m. Monday.

A black male and a black female followed the woman into the elevator. When the doors closed, Sisson said, the male attempted to take the purse from the victim.

"The victim resisted that and she was punched in the face by the black male," Sisson said. He then took the woman's purse, and the suspects fled in opposite directions when the elevator doors opened, Sisson said.

The male, who allegedly had the purse, ran across the street to a hotel. Police later recovered the victim's purse in a bathroom at the hotel, Sisson said.

Police were unsure what was missing from the woman's purse on Monday afternoon. They will review video footage from the elevator as part of the investigation.

Negligent Discharge Caused by "Gun-Free Zone"?

One of many reasons why WVCDL strongly disfavors so-called "gun-free zones" is that, by requiring individuals to disarm before entering a particular area, the person has to handle his or her handgun far more than would otherwise be necessary.  Increased, unnecessary handling of a handgun that results from more frequently unholstering and reholstering it increases the likelihood that the person will improperly handle the handgun and have a negligent discharge.  While this case may involve a highly controversial figure (based on things completely unrelated to his decision to lawfully carry a handgun for personal protection), this story should be a reminder of the need to always be extremely careful when handling & holstering your gun.

  

  

Koran-Burning Pastor's Gun Discharges Outside of Detroit TV Station

 

Published April 22, 2011

  

Police were called Thursday night after Koran-burning pastor Terry Jones accidentally discharged his firearm in the parking lot of a television station, where he had just conducted an interview, MyFoxDetroit.com reported.

"Pastor Terry Jones just discharged his firearm in our parking lot," myFOXdetroit.com announced on its Facebook page.

"He claims it was fired by accident. The shot went into the floorboard of his car. No one was hurt. Police on scene."

Southfield Police confirmed the gun accidentally discharged. No charges were filed, and police gave the gun back to Jones before sending him on his way.

The FOX-owned WJBK television station where the incident took place has a policy of not allowing guns inside the building.

The Florida pastor plans to hold a demonstration in Detroit on Friday outside the biggest mosque in the United States to protest Islamic law.

He faces a jury trial Friday morning to decide if the rally can go ahead.

Earlier Thursday, a judge ordered Jones to pay what is known as a "peace bond," for his planned Good Friday protest of the Islamic Center of America.

Prosecutors sought up to $100,000 in fees from Jones for extra police in fear of a riot.

After a half hour of instructions from 19th District Judge Mark Somers explaining the complaint against them, Jones and his assistant, Wayne Sapp, said they understood the charges and then declined legal counsel.

Both men were called into court to answer questions from the prosecutor, who accused them of planning to disturb the peace, and take part in ethnic intimidation by holding a demonstration.

The judge denied Jones' request for the permit required to legally have the protest, then gave him a choice: Pay the bond or go to trial.

The trial starts Friday morning.

Jones, head of Dove World Outreach Center in Gainesville, Fla., drew world attention last month when his congregation staged a "trial" of Islam's holy book that culminated in setting a copy of the Koran ablaze. News of the event incited riots in Afghanistan and an attack on a United Nations facility there that killed seven people.

He also sparked outrage when he announced plans by his church to burn copies of the Koran last year to the mark the anniversary of the 9/11 attacks on the U.S. He later abandoned the plans.

Click here to see the controversial pastor's interview on WJBK.

Another Failure of Gun Control in the UK

  

21/04/2011

A DAD-of-four who split up a fight in a McDonald's was shot dead moments after being told he wouldn't see the morning.

Raymond Mitchell, 34, had only popped into the restaurant to buy a hot chocolate.

But he apparently caused offence after splitting up two men fighting in the queue.

One of them, who had several gold teeth, shouted at Raymond: "You are gonna die tonight, you are not gonna see the morning."

The thug is then said to have phoned an accomplice to fetch a gun, yelling into his mobile: "Bring me that thing."

Raymond left the 24-hour McDonald's but was chased into a cul-de-sac. The gun was then delivered and Mr Mitchell was beaten and pistol-whipped before being shot three times in an alley in Brixton, South London, at 6.50am on Sunday. Raymond, nicknamed Brown, was taken to hospital but died hours later.

One neighbour, who saw the shooting but was too terrified to be named, said: "He was begging, literally begging for his life. I didn't dare look out my window in case they saw me. I heard them laughing and swearing at him, calling him a 'b***h'. I heard them laughing afterwards as well."

Raymond's partner, who asked not to be named, said: "I'm terrified. They're still out there and they've not been caught. I've been told how they were laughing, actually laughing after they beat him and shot him. How could anybody do something like that?"

She had been out drinking with Raymond on Saturday night before he went into the West End to meet some friends for drinks.

She said: "Everybody loved him. He was well known around Brixton. Just a friendly guy."

His family left tributes and flowers at the murder scene. One of his sons, Raquan Mitchell-Perry, 11, described as a "brilliant dad" in a poem. The Met's Trident unit is investigating the murder.