J&G Sales and NSSF File Suits against the BATF&E

[Bartholomew Roberts]

Update: J&G Sales in Arizona received a demand letter from the ATF for this new regulation. They are immediately filing suit with the support of the NRA.

From their email:

"As many of you may have heard, the BATFE has sent an unprecedented "demand letter” to all the licensed firearms dealers in the four border states of Arizona, New Mexico, California, and Texas. This will require dealers to report to the BATFE the names and addresses and serial numbers of all purchases of more than one semi-automatic rifle, with a detachable magazine, over 22 caliber, within a 5 business day period. This new and extreme regulation goes into effect for all purchases that occur on or after August 14th, 2011. The BATFE has issued a new form 3310.12 that FFL dealers have to complete and return to the BATFE starting on this date and going forward.

The BATFE and Department of Justice has made this demand on us and on you, with no Congressional authorization. Therefore today J&G Sales has filed suit in the Washington DC federal court challenging this illegitimate regulation. We are being assisted in this law suit by the NRA as well. We hope the outcome of our challenge will be a reversal of this unconstitutional regulation.

Thank you all for your support of the 2nd amendment and will keep you all updated as this case progresses."

[Tom Servo]

The demand letter cites 18 U.S.C. § 923(g)(5) as justification for the new requirements. The relevant section reads:

(5)
(A) Each licensee shall, when required by letter issued by the Attorney General, and until notified to the contrary in writing by the Attorney General, submit on a form specified by the Attorney General, for periods and at the times specified in such letter, all record information required to be kept by this chapter or such lesser record information as the Attorney General in such letter may specify.

In this case, the demand is coming from the Acting Director, not the Attorney General. Under law, Melson doesn't have the authority to require these forms, much less to delegate the matter to Houser. Therefore, the request is illegal in its current form.

[Al Norris]

I was waiting for the case to be listed on PACER, but since Bart made the post, it deserves it's own thread.

2 posts moved from the Obama Starts Gun Control thread to this new thread.

[Crosshair]

Time to start buying more stuff from J&G.

[armoredman]

Dealt with them before, great company, great people.

[Al Norris]

So I got curious, went back to PACER ... No Joy. Then went to the NRA-ILA site and found ....

It turns out that there is a good reason this lawsuit hasn't been listed yet at the DC Federal District Court.

This NRA-ILA alert, says the the NRA funded lawsuit was filed just today, Aug. 3rd.

That news item then lists a news story about the suit from the N.Y. Times, also published today.

From the Times story:

While the suit is being paid for by the N.R.A., it is being brought in the name of the two Arizona dealers, J&G Sales of Prescott and Foothills Firearms of Yuma. The complaint said that about 8,479 licensed dealers were in the four states affected by the rule.

The Times story does give a very brief (and misleading) nod to Fast and Furious.

So either the NRA mislead J&G Sales as to when the suit was (going to be) filed, or J&G misunderstood the NRA.

Either way, the case should be available within a day, certainly by Friday. Assuming the case was actually filed. sigh.

[CowTowner]

Got an email this morning from the NRA-ILA and it contained a link to a PDF copy of the complaint that they say was filed: http://www.nraila.org/media/PDFs/lit...J&GvMelson.pdf

[BGutzman]

Its funny (not really) Holder says the regulations they want to require are to stop the flow of guns to Mexio. It seems apparent from the information on Fast and Feloniously Negligent shows the best US supplier of guns to Mexico is the BATFE. Eric Holder needs to persuit the real criminals who ignored our agents complaints (and thought this mess up in the first place) and then fired them for complaining.

http://www.foxnews.com/politics/2011...rously-oppose/

The criminals are at the BATFE not the owners of the gun shops...

[stevelyn]

I cannot express how angry I am about this. The waffen BATFEces thugs under the direction of Holder creates a crisis, blames us and then punishes us as the solution.

[alloy]

Is there any significance to J&G being one of the Fast and Furious whistleblowers, as far as evidence they might need to bring forward or people they might want to testify...to make their case? Why would the NRA choose them, instead of a shop that wasn't already wrapped up in reporting multiple sales to the ATF....does the NRA have an angle related to F&F they want to explore or one that makes J&G the right choice...or pure coincidence?

[Bartholomew Roberts]

I think the significance is it allows the NRA to argue that the "problem" the regulation is supposed to solve is one that was largely created by the ATF and State Department. They may not wish to pursue that strategy for other reasons; but it leaves them the option.

[Al Norris]

Title was changed to reflect the new reality.

Not only did J&G Sales and Foothills Firearms file suit (Stephan Halbrook for the NRA), but the National Shooting Sports Foundation (NSSF) filed suit in the smae court on the same day (will be logged in the Current 2A Cases thread, immediately after this post).

The complaint for J&G Sales can be read, here.

The NSSF complaint is here.

[Al Norris]

Two more cases (as reported in the NRA-ILA Legal Update - this thread).

We have Ron Peterson Firearms, LLC v. Melson. Filed in the US District Court of New Mexico. Docket is here.

Also, there is 10 Ring Precision, Inc. v. Melson. Filed in the Western District of Texas. That docket is here.

These two cases are identical to the J&G SALES, LTD. et al v. MELSON case.

The Government isn't dumb. Look at the Peterson docket and pay particular attention to docket entry #8. While I haven't updated the dockets for the first two cases, I have no reason to doubt what the government plans on doing.

Docket entry #8 is a motion to move these two case to the District of Columbia. Same district court as the first two cases (upthread). They have every reason to do this and I suspect the New Mexico and Texas district courts will agree.

What will happen as soon as the two Judges agree, and they will, is that the Feds will then move to consolidate all 4 cases as related, and they are. That move will likely be granted.

The NRA should have seen this.

While the first two cases in D.C. (one by the NRA and one by the NSSF) might have survived separately, by filing 2 more identical cases, they have sealed their own (and the NSSF's) fate.

Bad Strategy and Bad Tactics.

[KyJim]

The change of venue motion calls into question the decision of the NRA to bring suits in the D.C. district court. I wondered about that when they did so. I'm sure it was more convenient for their lawyers but may be ultimately detrimental to the clients. Of course, funding might not have been available outside D.C. and you get help where you can.

The gun stores that filed locally can argue that their place of business, location of records, location of where the physical acts primarily occurred, and location of many witnesses all favor local filing. Since it is discretionary with the district court, we might even see different decisions on this.

Added: Perhaps part of the strategy was to increase the chance of review if there were conflicting decisions of different circuits. However, I don't see this being the type of litigation where this is necessarily going to be a factor in the decision of the Supreme Court to review.

[Al Norris]

How is this change of venue detrimental to all concerned?

From the standpoint of the Courts, if the cases are truly related, then you save time and resources. Both of which are limited. One judge handling both (or more) cases costs less than taking the cases under different courts. Those are government costs, however.

From the Standpoint of the plaintiffs (in this case), one set will be the controlling case - that is, one of the attorneys will have more of a voice than the other(s). They will set the main direction from which the case(s) will proceed. Costs of the suit will be shared amongst the parties, but not all parties will have an equal voice.

In the case we have here, the NRA will be paying for all 3 suits and all three sets of attorneys. That's 3 times the amount that this suit would have cost, otherwise - had the NRA filed a single valid suit.

Are we even sure that the motives of the NRA are the same as the NSSF? Will the NRA take these cases in the same direction that the NSSF would have taken their case? How much of a voice will the NSSF attorney have, against the voices of the other attorneys?

Now consider this.

The change of venue motion does call into question the decision of the NRA to file in D.C. in the first place. This question is valid, considering the other two cases were filed in their home districts?

Like it or not, this will taint the NRA (and hence their cases) in the eyes of the Judge. Shall we mention how much hay the Government will make of this? Fact is, the Government has already started.

[Crosshair]

Like it or not, this will taint the NRA (and hence their cases) in the eyes of the Judge. Shall we mention how much hay the Government will make of this? Fact is, the Government has already started.

That cuts both ways. I don't think the judge who gets the case wants to be knows as "The judge that supports arming drug cartels."

[Al Norris]

That's the thing, Crosshair. It (Fast & Furious) was mentioned in the NSSF complaint. They could take that allegation forward. But not the NRA. They don't mention it in any of the 3 complaints.

So what happens if the .gov relates the 3 NRA cases and then relates the NSSF suit?

I'll tell you. That allegation will get quashed by the majority cases. They were related first and will control.

Now if the NSSF files a motion to relate J&G Sales and then files to relate the other two cases, once their venue is changed... It's a whole new ballgame. The NSSF will control going forward.

Gotta go check the DCD dockets... I kept getting timeouts when I tried to peek this morning and during my lunch.

[Aguila Blanca]

All these shenanigans and maneuverings confuse the three functional brain cells I have left. I need one to control breathing and one to keep the heart pumping, and all this is too much for the third to handle alone.

Someone please explain when you figure out who's on first.

[Al Norris]

On 09-27-2011, in the consolidated case, NSSF v. Melson, the Brady center filed an amicus brief. In this brief, the Brady's tout the (now) overused phrase and stats on how arms trafficking are the clear result of lax gun laws and lax FFL's when dealing with straw purchases. Nary a word of Project Gunrunner and/or Operation Fast and Furious. Surprised?

After some reflection, I'm left wondering why they (Brady Campaign) opened this door. Surely they have to know that should the plaintiffs attack this amicus brief, it will possibly affect the entire Obama administration. Don't They? While we all know that they are getting really desperate in their anti-gun arguments, are they really that stupid?

Well, the first shot has been volleyed. Earlier, the ATF submitted its administrative record on how they determined that arms were being trafficked into Mexico (Docket items 22.0 - 22.7). Then the ATF filed its MSJ and supporting docs.

The NSSF is now requesting an expedited discovery to ascertain exactly what trace data the ATF relied upon. The NSSF has already determined that some of the data belong to long arms not in the ATF new regulations. Heck, some of the data is not even from the 4 States affected by the regulations.

Wanna bet a substantial portion of these traces were from F&F?

I'm gonna shut up now. Any more speculation would just make me sound crazy! The Docket is here, if you want to wade your way through some of it.

[Al Norris]

Here's a recap of what is going on with the 4 lawsuits against the BATF&E and their Demand Letter to report multiple rifle sales:

As we (should) know, The First lawsuit was filed by the NSSF in the Federal District of D.C. This, even though the NRA had reported that they were ready to file for J&G Sales, several days earlier.

J&G Sales was filed right after the NSSF suit and included Foothills Firearms as one of the plaintiffs (this actually caught J&G flatfooted, as they weren't told about this initially). This suit was also filed in D.C.

The ATF filed to relate the cases within a matter of days.

From the Docket (the J&G Docket stops when the cases were consolidated), here's what happened (I left out a few of the minor "pole positioning" arguments):

• 08-15-2011 - Motion to relate 1:11-cv-01402-BAH (J&G Sales, LTD).
• 08-18-2011 - Order to Consolidate J&G SALES, LTD. et al v. MELSON with NATIONAL SHOOTING SPORTS FOUNDATION, INC. v. MELSON.
• 08-22-2011 - Motion for Preliminary Injunction by plaintiff NSSF.
• 08-26-2011 - MPI by plaintiffs Foothills Firearms & J&G Sales.
• 09-02-2011 - MPI Denied.
• 09-12-2011 - Administrative record filed by ATF.
• 09-23-2011 - MSJ filed by ATF.
• 09-27-2011 - Motion to file Amicus Curiae by Brady Center. NSSF filed motion to stay MSJ in favor of expedited discovery.
• 09-28-2011 - Motion to stay proceedings, denied.
• 10-01-2011 - Motion in opposition to MSJ and cross-MSJ filed by Foothills Firearms and J&G Sales.
• 10-12-2011 - Cross-MSJ and opposition to defendants MSJ filed by NSSF.
• 10-21-2011 - Defendants reply to opposition and cross-MSJ's.
• 11-01-2011 - Plaintiffs file counter replies.
• 11-08-2011 - Defendants file surreply.

The MPI was denied mostly because judge decided that there was no irreparable harm, based on the facts that they (Foothills Firearms and J&G Sales) were already set up to report multiple handguns and that they waited to file the suit and waited some more to file the MPI.

The next lawsuit to be filed was also filed on 08-03-2011 in the Federal District of New Mexico by Ron Peterson Firearms (backed by the NRA).

This case has been placed on a stay, pending the outcome of being related to the NSSF case, since 10-05-2011. If the case is related, it will be transferred to D.C. and consolidated with NSSF and J&G Sales.

The final case (as of this writing), was filed on 08-05-2011 in the Federal District of Texas, Western District, by 10 Ring Precision.

The Judge in this case held a hearing on 12-22-2011 on the defendants motion to change venue or in the alternative, for a stay in the proceedings until the D.C. cases are decided.

Stephan Halbrook and Richard Gardiner, both NRA attorneys, are attorneys for 3 of these cases. The complaints for these 3 cases are virtually identical.

The NSSF has their own attorneys. Their complaint is different in scope, if not in requested remedy.



Opinion/Editorial

There is no doubt in my mind, that all 4 cases will be related, venue changed and the cases consolidated. The NRA will control the flow of these lawsuits.

This is a case of the NRA(-ILA) not fully considering the consequences of their own strategy. Tactically, this was a bad move. It places an extreme burden upon the NSSF to differentiate their (single) case from the 3 NRA cases.

It is my opinion that the NSSF is the better case, but will be overshadowed by the actions of the NRA. In the NRA's misguided effort(s) to find relevance in a postHeller/McDonald world, I hope this case survives.

[C0untZer0]

I think the NRA does a great job of fighting the ideological war that is being waged - the battle for the hearts and minds of the average citizen. They do a great job of exposing the lies of the rabid gun control advocates. I think they do a great job politically - both during the legislative process and during elections.

But their lack of coordination with SAF is unfortunate.




.

[scpapa]

In the NRA's misguided effort(s) to find relevance in a postHeller/McDonald world....."

I think the NRA-ILA does not subscribe to the idea that more can get done if you don't care who gets the credit. They want to be "the one" that wins big cases, rather that helping get cases won.

Rick

[C0untZer0]

I think there are a few models for anti-gunners to follow.

For one, you can look at what anti-abortion / pro-life advocate eventually did even though they were handed a defeat in Roe v Wade. They nibbled around the edges until in some states, getting an abortion is so wrapped in regulations and rules that they've put up tremendous hurdles and disincentives for abortion.

There is a lot that municipalties and states can do to severly limit gun rights - as in New Jersey, certain parts of California, New York City...

I don't think we've seen where the courts are going to remedy those situations. Maybe Kwong, et al v. Bloomberg et al could set a positive precedent. It could also go against us - in which case "excessive" amounts of paperwork, forms, fees, processes and proceedures, long wait times - could only be fixed with legislation.

[Glenn E. Meyer]

We do not discuss abortion. No one start discussing that issue.

[Al Norris]

Judgement in the case is here. Docket and decision should be available shortly.

MSJ for the government is granted and MSJ for the plaintiff is denied.