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Old June 14, 2012, 05:58 PM   #1
Sean Michel n Assoc
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Jackson v. San Fran - Updated

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." That brief is available here: http://michellawyers.com/wp-content/...-Pleadings.pdf

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.

The motion asserts that the City has not raised a viable defense, and asks the Court to issue an injunction preventing enforcement and to declare the ordinances unconstitutional. At minimum, the motion will serve to narrow the issues, and to prevent the City from misdirecting the litigation with irrelevant distractions.

The Jackson case was strategically designed to, potentially, be the first case to address the "standard of review" applicable to Second Amendment challenges. The case is legally "cleaner" than many of the Second Amendment cases currently being litigated, as it does not raise issues about public carry, "sensitive places" where a firearm may or may not be possessed, or other issues that might make it easier for a court to water down Second Amendment protections.

The case was, unfortunately, stayed pending resolution of the McDonald case, which ultimately decided the "incorporation" issue at the Supreme Court level. The case was then delayed by multiple rounds of obstructionist preliminary motions filed by the City, including motions seeking to tie the case to a similar problematic case filed by a rogue attorney, who essentially cut and pasted from the Jackson case.

The NRA’s attorneys at Michel & Associates, P.C. have successfully defended against each of the City’s preliminary motions, and even secured an important published "standing" ruling that clarifies the rights of future litigants in the Ninth Circuit to bring Second Amendment challenges to unconstitutional restrictions on the right to keep and bear arms. That ruling is available here: http://michellawyers.com/wp-content/...p_.2d-2011.pdf

The NRA’s early litigation efforts in the Jackson case also forced the City to abandon its policy of outright banning the discharge of firearms, even in self-defense. Initially, the lawsuit included a challenge to the City’s ordinance completely prohibiting firearm discharges which had been in place for nearly 75years. Facing this legal challenge, the City amended its ordinance and it now allows for discharges in lawful self-defense and defense of others, as well as all other circumstances allowed for under state and federal law.

While Jackson was delayed, a panel for the 9th Circuit adopted a framework for Second Amendment challenges in Nordyke that would afford heightened scrutiny only to gun control laws that impose a "substantial burden" on the right to arms. That opinion has since been set aside, however, and the District Court is now free to adopt its own standard of review in the Jackson case, possibly when it rules on the pending motion.

In addition to providing an ideal framework for the Court to address the standard of review issue, the Jackson case is also aimed at developing Second Amendment jurisprudence regarding protections for arms that are in "common use," and the right to commercially transact in firearms and ammunition. Rulings on these issues could pave the way for future legal challenges by establishing important "building block" rulings in less controversial settings.
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Old June 14, 2012, 06:52 PM   #2
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As a California ex-patriot, my best wishes for success go with you into court.
I hope to see the day in my lifetime, where I can carry my concealed firearm in that state legally. And loaded with proper SD ammo (hollow points) as well.
Good Luck with the Good Fight!
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Old June 14, 2012, 11:57 PM   #3
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Thank you Sean for that update.

I have just recapped the docket (http://www.archive.org/download/gov....14.docket.html and downloaded the City/Counties response.

I've also included this thread as the TFL Thread URL in the cases thread.
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File Type: pdf gov.uscourts.cand.215014.127.0.pdf (166.5 KB, 4 views)
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Old June 17, 2012, 03:42 PM   #4
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The Jackson case has virtually gone under the radar, both here, at CalGunsNet and at MDShooters. 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'm extremely thankful to Sean Brady (of Michel & Associates, P.C.) in starting this thread.

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.
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Old June 22, 2012, 12:06 AM   #5
Sean Michel n Assoc
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Reply Brief Filed

Thanks Al, it was my pleasure. Solid analysis and overview by the way.

Just wanted to update this thread by letting everyone know our Reply brief was filed today. You can read it at: http://michellawyers.com/wp-content/...hibits-A-1.pdf

And all other filings in this case can be found at: http://michellawyers.com/guncasetracker/jacksonvsf/
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Old June 22, 2012, 09:38 PM   #6
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Just a couple of quotes from the reply:

Quote:
...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.
and...

Quote:
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.
In light of Heller, I don't see how any Judge could honestly uphold this statute.

In the ammo ban, the plaintiff makes excellent use of Heller's "in common use" standard, as opposed to the defense trying to turn the claim to one of, "most commonly used."

You can bet that Evan Nappen (NJ2AS attorney) in New Jersey is paying attention to this one.
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Old June 24, 2012, 12:09 PM   #7
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After filing their reply brief, plaintiffs also filed a request for notice (a supplemental authority): Gowder v. Chicago.

http://michellawyers.com/wp-content/...-Pleadings.pdf
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Old July 22, 2012, 09:53 AM   #8
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Back on Thursday, July 12th, a hearing was held on the plaintiffs MJP. The Court has taken the matter under advisement.

This means that we now wait for the Judge to issue a finding on this particular matter.

Please note that the URL that Sean gave to the case pleadings (post #5) is no longer valid, as it has been PW protected. The Internet Archive has been updated with the current docket and filings.
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Old July 23, 2012, 12:09 PM   #9
Sean Michel n Assoc
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Jackson Case Filings

Al, the Jackson page on our website is no longer password protected. Sorry, staff put a password on it by accident. Here is the link:
http://michellawyers.com/guncasetracker/jacksonvsf/
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Old July 23, 2012, 01:16 PM   #10
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Thanks, Sean.
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Old September 4, 2012, 09:55 AM   #11
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On Aug. 17th, the Judge has denied the plaintiffs motion for Judgment on the pleadings.

On Aug. 30th, the plaintiffs files a Motion for Preliminary Injunction. The response is due on Sept. 20th and the reply due on Sept. 27th. The Judge set Oct. 4th as the hearing date for this motion.
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Old September 4, 2012, 10:50 AM   #12
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When plucking low-hanging fruit is this tough, you know you are in unfriendly territory. This really could be decided quickly with half a judicial brain.
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Old September 4, 2012, 12:16 PM   #13
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Quote:
This really could be decided quickly with half a judicial brain.
No disrespect intended, but I would have to modify this to read:

"This really could be decided quickly with half a non-prejudicial judicial brain."
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Old September 6, 2012, 07:20 PM   #14
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The denial of the motion for judgment on the pleadings cannot be appealed. When the preliminary injunction is denied, it can be appealed.
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Old September 24, 2012, 09:16 PM   #15
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On Sept. 13th, we have the City and County of San Francisco’s Opposition to Plaintiffs’ Motion For Preliminary Injunction.

Then on the 20th, we have the Plaintiffs’ Reply To Defendants’ Opposition to Motion for Preliminary Injunction.

Filed with the reply, we have the Declaration of Massad Ayoob In Support of Plaintiffs’ Reply To Defendants’ Opposition to Motion for Preliminary Injunction.
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Old October 31, 2012, 05:58 PM   #16
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On 10-09-2012, a hearing was held on the MPI. While we are waiting for the results, Michel & Assoc. have made a transcript of the hearing available: Motion for Preliminary Injunction Hearing Transcript for October 9, 2012
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Old November 2, 2012, 09:06 PM   #17
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That was a very lame argument, amounting to, "plaintiff expects to lose, so rule against us so we can appeal." Not persuasive. I like Ayoob's declaration though.
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Old November 28, 2012, 01:10 PM   #18
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Monday, the court in Jackson v. San Francisco denied a preliminary injunctioon.

Jackson-MPI Denied

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

Quote:
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:

Quote:
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[s] 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.

Expect Michel & Assoc. will appeal this ruling (62coltnavy gets gets the prize).
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Last edited by Al Norris; November 28, 2012 at 02:10 PM. Reason: there/their
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Old January 27, 2013, 12:29 PM   #19
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A small update.

As expected, the MPI was denied and the plaintiffs have appealed.

A bit of stipulated motion for a different briefing schedule that the one the court proposed and we now have:

Initial briefing on February 7th, response on March 7th and a reply (if any) on March 20th.

Full details at Michel & Assoc. Gun Case Tracker.
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Old March 9, 2013, 09:20 AM   #21
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Thursday, the City of SF filed its opposition brief at the 9th Circuit.

http://michellawyers.com/wp-content/...-of-Police.pdf

It is interesting to note 2 things. 1) The city calls for rational basis to test the law (something the Supreme Court said was off the table) or at most, a watered down version of intermediate scrutiny. And 2) The City contorts the Heller decision to say keeping a locked handgun is perfectly within the parameters of the Heller decision, and therefore, constitutional.
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Old March 9, 2013, 06:26 PM   #22
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Nothing could be further from the truth. As we know, Heller invalidated the DC trigger lock law on the basis that the a functional firearm must be available for immediate use for self defense. Requiring the firearm to be disassembled was also struck for the same reason.
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Old March 11, 2013, 02:53 PM   #23
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They'll get slapped down on the storage thing (maybe not by a district court, but if it goes to SCOTUS for sure) but the ammo thing who knows.

Quote:
In 2011, San Francisco adopted findings in support of its Ammunition
Ordinance. S.F. Police Code § 613.9.5. The findings state that enhanced-lethality ammunition is more likely to seriously wound or kill a person who is hit by it than conventional ammunition.

Ummm, this is a fact because we say it's a fact? Even if their findings are correct, that's rational basis.

And no sporting purpose? Heck, my components supplier had hollow-points on special, was the same price as my regular bullets, so I've been shooting USPSA for the last 4 months with hollow-points.
I can assure the gun prohibitionists of the Bay Area that they serve the sporting purpose just fine.

Also in the sporting purpose vein, hollow points are said to be slightly more accurate in certain situations due to beneficial aerodynamics caused by the hollow point. That would accentuate their desirability in the sporting world, if it weren't for their (normally) higher prices.

But all this is arguing rational basis crap. I don't care if we win the rational basis argument, the state has to prove it meets (at least) intermediate scrutiny.
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Old March 11, 2013, 07:35 PM   #24
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Enhanced lethality - huh? Am I missing something? If a 9 expands to a diameter the size of an 45 FMJ - which is enhanced? Expansion or absolute value of diameter in your tushy or noggin?
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Old March 12, 2013, 08:56 PM   #25
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I just deleted 7 off topic posts.

If I can believe what I just read, over at CalGuns.net (and I have no reason not to believe it), SanFran just passed a ban on possession of hollow-point ammo. Along with a reporting requirement for the purchase of 500 rounds (or more) of ammo.

All that needs to be done is for the Mayor to sign the bills.

The workload at Michel & Assoc. just got heavier.
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