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Old May 25, 2012, 07:39 PM   #51
Al Norris
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And we thought it was over in North Carolina?

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Friday, May 25th, 2012

BELLEVUE, WA – The Citizens Committee for the Right to Keep and Bear Arms is alerting North Carolina gun owners that state lawmakers are attempting to pass a new “emergency powers” law that may be more restrictive than the one a federal judge just struck down.

House Bill 489, according to Grass Roots North Carolina, would enable cities to restrict firearms rights in the home in emergencies, something they never had the authority to do. Attorney Alan Gura, who represented GRNC and the Second Amendment Foundation in the recently-won federal lawsuit striking down the state’s emergency power to regulate firearms in a declared emergency, says that anyone who tries to enforce a ban on guns under this new legislation would lose qualified immunity.

The legislation, now in the Senate Judiciary I committee, establishes “dangerous weapons restrictions in emergencies.”

CCRKBA Chairman Alan Gottlieb said the new proposal suggests that North Carolina lawmakers responsible for this bill “either simply don’t get it or they are determined to undermine a constitutionally-protected civil right no matter what a judge says.”

“The federal court ruled against this sort of emergency regulation, but the legislature is turning around and trying to pass an even more restrictive law,” he observed.

CCRKBA is urging firearms owners to contact their state senator to oppose the measure.

“Try to adopt bad legislation in an effort to replace a bad law that was struck down by a federal judge is not just bad policy,” Gottlieb said, “it is an egregious abuse of legislative power.”

With more than 650,000 members and supporters nationwide, the Citizens Committee for the Right to Keep and Bear Arms is one of the nation’s premier gun rights organizations. As a non-profit organization, the Citizens Committee is dedicated to preserving firearms freedoms through active lobbying of elected officials and facilitating grass-roots organization of gun rights activists in local communities throughout the United States. The Citizens Committee can be reached by phone at (425) 454-4911, on the Internet at www.ccrkba.org or by email to InformationRequest@ccrkba.org.
I would hope this legislation is just pandering to some anti-gunners base and goes nowhere. You folks in NC need to start watching and calling!!
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Old May 25, 2012, 08:10 PM   #52
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Wow, that's terrible! Need to publicize the names of all the NC politicians who signed off on/are pushing this thing.
Restricting rights in the home, the one place even the Brady Bunch agreed Heller and MCDonald cover...egad. Unelect them.
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Old May 25, 2012, 08:58 PM   #53
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The proposed revisions to the Emergency Powers Ban were ugly. However, the explanation was provided that "What is becoming clearer, however, is that this might be a case of inadequately supervised staffers running amok."

At this point, the revisions drafted by staff have been withdrawn and we will have to see how the issue is addressed with oversight from the Majority Leadership (Republican).

Moreover, revising a law that has been ruled unconstitutional is somewhat a waste of effort when the Senate should be focused on passing a restaurant carry bill passed by the House in the prior legislative session.

Last edited by gc70; May 25, 2012 at 09:04 PM.
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Old May 26, 2012, 01:14 AM   #54
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We almost want them to try. Without qualified immunity, their posteriors are exposed to significant financial ramifications. (And they really do not want their posteriors ramificated)
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Old May 26, 2012, 06:30 AM   #55
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Can someone explain why/how the police would lose qualified immunity if they enforce a newly-written law? As has been noted, any new law is enforceable until a court rules that it's not Constitutional.
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Old May 26, 2012, 07:54 AM   #56
Al Norris
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Quote:
Originally Posted by Aguila Blanca
Can someone explain why/how the police would lose qualified immunity if they enforce a newly-written law? As has been noted, any new law is enforceable until a court rules that it's not Constitutional.
In a word - Heller.

The longer explanation is that State actors cannot forbid the use of firearms for self-defense in the home. Under this legislation, such use would have to be "authorized" by local law. The State and local authorities have no power to prohibit nor authorize such use.

Under Bateman, the State and local authorities have no power to prohibit nor authorize the defensive use of firearms in or out of the home. Such a law deprives you of your fundamental right to self defense, under color of law, and is actionable under a section 1983 suit. Any sheriff or other police authority trying to enforce a clearly unconstitutional law would lose any immunity that would otherwise attach.
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Old May 26, 2012, 08:07 AM   #57
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With all due respect, Al, I disagree. Under a QI analysis, the officers will not be expected to make an assessment of the constitutionality of the new laws, or of the interaction between Heller and the new laws. Statutes are presumed constitutional, and LEO trying to enforce the new laws will likely be entitled to QI for operating on that presumption.
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Old May 26, 2012, 09:00 AM   #58
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I'll be interested in how this plays out. What is QI?
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Old May 26, 2012, 09:12 AM   #59
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Qualified Immunity
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Old May 26, 2012, 10:26 AM   #60
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Quote:
Originally Posted by Spats McGee
With all due respect, Al, I disagree. Under a QI analysis, the officers will not be expected to make an assessment of the constitutionality of the new laws, or of the interaction between Heller and the new laws. Statutes are presumed constitutional, and LEO trying to enforce the new laws will likely be entitled to QI for operating on that presumption.
That's about what I thought. It's one thing to continue enforcing a law you know has already been ruled unconstitutional. When the legislature subsequently enacts a new law, which they presumably believe WILL be constitutional, I would be surprised if the police would not be protected by QI for enforcing said new law.
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Old May 26, 2012, 12:20 PM   #61
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How quickly could the court act to issue an injunction against enforcement of a law that is substantially identical to a struck law?
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Old May 26, 2012, 05:19 PM   #62
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mp, no court can issue an injunction to prohibit enforcement of the new laws until someone has actually challenged the new law. It doesn't matter that the new laws are "substantially identical" to the old ones. Unless and until someone challenges the new law, regardless of how closely it tracks the old one, there's no "case or controversy" for the courts to hear.
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Old May 26, 2012, 05:37 PM   #63
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Thanks. So if a suit is filed, THEN how quickly could this NC court act?

It is stunning to me that the legislature has zero respect for our system of government. The court absolutely has the right and duty to interpret the constitution as it has faithfully done here, but this body would instead substitute it's will for the proper judgment of the court. There seems to be no honor among these lawmakers. Just shameful.

Last edited by maestro pistolero; May 26, 2012 at 06:21 PM.
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Old May 26, 2012, 06:38 PM   #64
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Quote:
Originally Posted by maestro pistolero
Thanks. So if a suit is filed, THEN how quickly could this NC court act? . . . .
At best, probably 60 days. Once the Complaint is filed, it has to be served on the defendants. Then the Defendants will have 30 days under the Federal Rules of Civil Procedure to Answer the Complaint. Then there has to be a hearing on the motion for an injunction. If all goes smoothly and quickly, the trial court might issue an injunction in 60 days. A more likely scenariois 90-120 days.
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Old May 26, 2012, 07:11 PM   #65
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Thanks, Spats. A follow up 'Q', if you will. Aside from electoral consequences, if any, is there a point at which a recalcitrant legislature hostile to the rule of law faces consequences for repeatedly passing legislation KNOWN to be unconstitutional?
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Old May 26, 2012, 08:11 PM   #66
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Not one of which I'm aware. The ballot box is really the only consequence. Legislators enjoy legislative immunity, to protect them from facing lawsuits every time they proposed or passed unpopular legislation.
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Old May 27, 2012, 09:31 AM   #67
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Maybe what we need is a constitutional amendment prohibiting legislative immunity... That might slow down the passing of ill concieved laws...
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Old May 27, 2012, 09:36 AM   #68
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I fear that such an amendment would have the effect of totally seizing up our legislatures. Legislators would either be too afraid of lawsuits to pass any laws, or they'd be so busy fending off lawsuits that they wouldn't have time to pass any.
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Old May 27, 2012, 10:24 AM   #69
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Cant really see how that would be bad... Im certainly not for being lawless but at the same time we cannot continue on the tidal wave of law passing as has been going on for quite some time.. Of course I also believe that the legislature should not be able to exempt themselves from the laws they pass.
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Old May 27, 2012, 12:27 PM   #70
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Quote:
Originally Posted by BGutzman
Cant really see how that would be bad...
If lawmakers can't pass any laws, they can't repeal any laws, either . . . No way to change things, for worse or for better.
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Old May 27, 2012, 04:26 PM   #71
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Given the current state of government affairs, I would be happy with a Constitutional amendment requiring that for the next ten years the Congress and the legislatures of the several states must repeal two laws for each new law they enact.

We also NEED a Constitutional amendment prohibiting unrelated amendments being tacked onto bills, either as "poison pill" provisions or "I'll get mine" provisions. Anything that potentially deserves to become law deserves to be debated on its own merits, not on the basis of whether or not its not bad enough to prevent legislators from voting for the bill to which it's attached.
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Old May 27, 2012, 05:48 PM   #72
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Im not sure what the ultimate answer is but concerning firearms it seems it will forever be easier to pass more laws banning whatever then we will ever be able to keep up with in appealing.

I do think there is a strong possibility in the next decade that the SCOTUS will spell out that guns and gun ownership is a civil right and that it is necessary that you can choose to possess arms for your defense most anywhere that isnt a specially limited area...
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Old May 27, 2012, 08:43 PM   #73
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Quote:
Originally Posted by BGutzman
I do think there is a strong possibility in the next decade that the SCOTUS will spell out that guns and gun ownership is a civil right and that it is necessary that you can choose to possess arms for your defense most anywhere that isnt a specially limited area...
That, of course, would depend on the composition of the court. Several Justices are getting to the point that health or other issues might dictate replacement in the next few years.
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Old May 29, 2012, 10:02 PM   #74
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Although it appears to be a moot point at this time, I'm going to chime in on the nature of qualified immunity. It is not necessary for a court to have declared the precise statute unconstitutional before one enforcing the statute may lose qualified immunity. The issue is whether "in the light of pre-existing law the unlawfulness must be apparent." To use an extreme example, police officers would not be entitled to qualified immunity simply because a new state law authorized them to shoot members of a racial minority on sight.

Here's a quote from a case on qualified immunity regarding a search, not a statute:

Quote:
What this means in practice is that “whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U. S. 635, 639 (1987) (citing Harlow, supra, at 819); see also Graham v. Connor , 490 U. S., at 397.

In Anderson , we explained that what “clearly established” means in this context depends largely “upon the level of generality at which the relevant ‘legal rule’ is to be established.” 483 U. S., at 639. “Clearly established” for purposes of qualified immunity means that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id., at 640 (internal citations omitted); see also United States v. Lanier , 520 U. S. 259, 270 (1997) .
Wilson v. Layne, 526 U. S. 603, 615 (1999) (emphasis added, publicly available copy at http://www.law.cornell.edu/supremeco...83/#writing-ZS).

I have not analyzed the bill that was introduced (and now apparently dropped) to see if is close enough to the former statute to strip an enforcing officer from qualified immunity.
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Old November 3, 2012, 07:18 PM   #75
Al Norris
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Gura has submitted his costs. Roughly, 48K.
Attached Files
File Type: pdf Bateman-nced-3970merged.pdf (422.6 KB, 5 views)
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