SAF Brings Suit against I-594

[Tom Servo]

Press release here. The filing itself is here.

Their argument is that I-594 is unconstitutional because it is too vague, both facially and as applied.

I-594, with its amendments to RCW 9.41 relating to non-commercial transfers of firearms, as well as Defendants’ enforcement of the same, prohibit, substantially interfere with, inhibit access to, and infringe upon the right to possess firearms and thus infringe Plaintiffs’ rights under the Second and Fourteenth Amendment of the U.S. Constitution as well as the rights in Article I, Section 24 of the Washington State Constitution.

They point out that the state patrol has announced they will not be enforcing the law because they can't prove what is or isn't a transfer. Most sobering is this bit from the Washington Department of Fish and Wildlife:

On December 2, 2014, the Washington Department of Fish and Wildlife issued guidance on I-594 that it had formulated “in close consultation with our legal counsel in the Attorney General’s Office.” The guidance was focused on the Department’s hunter education and stated, in part, that transfers between the Department’s volunteer hunter education instructors and their students are exempt because the instructors are agents of the Department, which is in turn exempt as a law enforcement agency. The guidance goes on to note, however, that transfers between students would not be exempt, but that instructors could avoid liability under I-594 by engaging in a straw-man transfer by taking the firearm from one student and handing to to another.

[carguychris]

Thanks, Tom.

I think that several from the filing are particularly notable (my emphasis underlined and my notes in [square brackets]).

First...

[I-594] imposes an overwhelming burden on individuals who are involved in repeated transfers of the same firearm (such as armed private security guards and private investigators who are required by state law to use firearms owned by their employer).

In the other I-594 thread, I noted that one of the big potential vulnerabilities of the law was that is applies to parties who are licensed to carry handguns but aren't on-duty LEO's, i.e. CPL holders, off-duty LEO's, and licensed armed guards. However, I was unaware that WA law explicitly requires licensed armed guard and private investigators to use firearms provided by their employer. This seems to place I-594 directly in conflict with preexisting state law!

Second... the filing brings up the question of how a shooting range can demonstrate that it is "authorized by the governing body of the jurisdiction in which such range is located". In the other thread, I surmised that this provision could be problematic if WA municipal law does not prescribe how such an authorization would work, and apparently this question remains unanswered.

Firearms Academy of Seattle cannot determine whether temporary transfers at the shooting range are exempted by I-594 because there is no indication of whether it is “authorized by the governing body of the jurisdiction in which such range is located.” Firearms Academy of Seattle has addressed this question to the Lewis County Prosecuting Attorney, who could not provide an answer because Lewis County does not require or provide licenses or permits for shooting ranges.

Third... there's the Department of Licensing (DOL):

On December 5, 2014, the Washington Department of Licensing issued a statement that the DOL’s Firearms Program would not “provide legal advice or help the public or licensed firearm dealers interpret the firearms statutes found in RCW 9.41 or I-594.”

This is particularly significant because the I-594 specifically says that...

The department of licensing shall have the authority to adopt rules for the implementation of this chapter as amended. In addition, the department of licensing shall report any violation of this chapter by a licensed dealer to the bureau of alcohol, tobacco, firearms and explosives within the United States department of justice and shall have the authority, after notice and a hearing, to revoke the license of any licensed dealer found to be in violation of this chapter.

If a licensed dealer cannot obtain guidance from the very agency that is charged with administering the law, how can a licensed dealer possibly be expected to conduct private transfers in compliance with that law?

This is particularly significant because, as I pointed out in the previous thread, the wording of the law suggests that a licensed dealer could face FELONY charges for violations of I-594. If a dealer cannot be told how to conduct private transfers and STAY OUT OF JAIL, how is it reasonable to expect any dealer to perform private transfers AT ALL?

[Aguila Blanca]

Moreover:

The department of licensing shall have the authority to adopt rules for the implementation of this chapter as amended. In addition, the department of licensing shall report any violation of this chapter by a licensed dealer to the bureau of alcohol, tobacco, firearms and explosives within the United States department of justice and shall have the authority, after notice and a hearing, to revoke the license of any licensed dealer found to be in violation of this chapter.

Why would the federal BATFE need to know about some FFL in Washington state possibly violating a state law? This little zinger has all the earmarks of having been tossed in just for the intimidation factor.

[kilimanjaro]

Almost reads like the state is going to revoke federal licenses, doesn't it?

Lets see if the liars who wrote this law appear in court to state that transfers mean only sales, like they are on record saying before the voting, and no one would ever be prosecuted for simply letting a housemate keep one while the owner is away, things like that.

[JimDandy]

Is anyone tracking this?

For that matter what's the "average" time table for the various stages to happen?

News Coverage out here hasn't even mentioned there IS a lawsuit yet that I've seen.

[JimDandy]

Answers to the Complaint are filed:

Defendant - Washington AG and Chief of the State Patrol

Proposed Intervenor Defendants Washington Alliance for Gun Responsibility, and Everytown for Gun Safety Action Fund for I-594

The Joint Status Report is due by 5/5/2015 and the 26f conference by 4/14/2015

[Aguila Blanca]

So the defendants' responses boil down to "We don't know," "We don't have to answer," or "Denied."

[JimDandy]

Yeah I laughed at that too, but that's how it works at this stage from what I've seen of other ones like this. It's practically cookie cutter. I'd imagine the lawyers can provide some insight into more nuanced aspects of the answers, like the Defenses raised at the end of the Government's answer.

[KyJim]

I'd imagine the lawyers can provide some insight into more nuanced aspects of the answers, like the Defenses raised at the end of the Government's answer.

Added Note: Affirmative defenses are waived if not asserted in the answer so it is better practice to assert a colorable affirmative defense and drop it later than to lose a colorable defense that might end up being a winner.

I'll just make some general comments on the affirmative defenses. A lot of the regulars here probably already know what I explain below but here goes.

1. The Plaintiffs have failed to state a claim upon which relief may be granted.

This should be in every answer to every complaint filed. It basically means that even if the facts (not legal conclusions) in the complaint are true, they provide no basis for legal relief. This used to be called a demurrer (maybe a few states still use that term). For example, A sues B because B's purple hair makes A sick when A looks at it. Even if true, there is no legal claim.

2. The Plaintiffs have failed to set forth irreparable harm or any other basis upon which injunctive relief is available.

Injunctive relief is normally available only when compensatory damages (money) cannot remedy the harm; i.e., damage to the plaintiff cannot be repaired. An imminent threat to one's civil rights or ongoing violation of one's civil rights may form the basis to claim irreparable harm. A past violation of civil rights, especially if isolated, can usually be cured by monetary damages. In this case, the argument for injunctive relief is stronger because of the 11th Amendment (see #5 below).

3. The Plaintiffs lack standing.

A person or entity cannot normally assert a claim if they are not the person or entity being harmed. There are some exceptions for associations whose members may be harmed and some exceptions for public interest groups asserting claims of harm; e.g., environmental groups. In its simplest form, lack of standing is easy to understand. A has no standing to assert a claim against B for punching C and breaking C's nose (assuming no parental or other special relationship between A and C). However, standing is often a complex question.

Here, the defendant AG may be claiming non-residents of Washington have no standing, that the Gottlieb Trust has no standing, or something else. I'm just speculating. This is usually thrashed out in discovery or and/or on a defense motion to dismiss for failure to state a claim.

4. The Plaintiffs’ claims are not ripe for review.

This basically means the defendants have not been harmed by the law and face no real threat of harm by the law. A mere theoretical belief that one may be affected by a law in the future may not be sufficient. IMO, at least some of the plaintiffs would have standing, such as the couple who live together, have pistol licenses, and wish to share.

5. Lack of jurisdiction as to certain claims under the Eleventh Amendment.

The 11th Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

On its face, this would seem to preclude any lawsuit in federal court against any state by a non-resident of the state sued. However, IIRC, this has been interpreted to allow suits against officers of the state (the AG) in their official capacity for injunctive relief but not money damages.

6. Certain of the Plaintiffs’ claims are barred by the doctrine of prosecutorial immunity.

If prosecutors confine themselves to the normal functions of a lawyer prosecuting a case, they have absolute immunity. If they go outside that role, they may either have only qualified immunity or no immunity. IMO, the Washington State AG is acting as an administrative agency in this instance and would not enjoy immunity from injunctive relief.

[JimDandy]

There's now a Motion to Dismiss "by Defendants John Batiste, Bob Ferguson, Washington Attorney General's Office" and what I assume is a corresponding Proposed Order to Dismiss from the same "Simpson, R" who appears to be their lawyer.

I didn't pay to download them, as I assume it's just di rigueur step that almost always happens and almost always gets shot down.

[Tom Servo]

The case has been dismissed for lack of standing.

In his opinion, Judge Settle wrote:

Plaintiffs explicitly concede that they have no intention of violating I-594, Plaintiffs have failed to allege any specific warning or threat to initiate a prosecution, and Plaintiffs have failed to allege any history of past prosecution or enforcement of I-594

[Aguila Blanca]

Plaintiffs explicitly concede that they have no intention of violating I-594,

Wonderful.

So in order to gain standing for a suit against a horrible law, one must either willfully break the law or must state an intention to violate the law ... or the court won't let you complain. What kind of system is that? The Red Queen and the Mad Hatter must be dancing a jig around that one.

[44 AMP]

So in order to gain standing for a suit against a horrible law, one must either willfully break the law or must state an intention to violate the law ...

Or show where/how you are harmed by the law. It's our system, it's been that way for a long time. It does have its merits, and isn't crazy. It's just, in this case, the judge ruled against us.

I'm no lawyer, but based on what I have observed, it appears that a legal suit need not have merit (which is what the court is there to decide) but you must have standing to bring the suit.

It is the lack of standing that prevents a single uber rich NYC mayor from directly suing every state or individual gun owner over something he doesn't like. (he has to find local people who have standing in the eye of the court. HE can fund them, but he can't sue, himself, because he has no standing in the matter)

Its the same lack of standing that kept the DC handgun ban in place for 30 years before any legal challenges. We had to find someone who was "harmed" by the law, AND lived in DC. Until Heller, no one had standing that the court recognized.

Personally I see this dismissal as a valid process, incorrectly applied. In other words, its not a flaw in the system, its the way this judge gamed their ruling.

[Aguila Blanca]

Originally Posted by 44 AMP

Personally I see this dismissal as a valid process, incorrectly applied. In other words, its not a flaw in the system, its the way this judge gamed their ruling.

I agree with your analysis of how it happened, but to me this clearly demonstrates a flaw in the system. If a person or persons who is/are harmed by a law is/are prevented from seeking redress because a single judge says he/they doesn't/don't have "standing," the system is flawed.

[leadcounsel]

The Judge got this one wrong.

There IS standing. The moment a person gives possession to a non authorized party the law is broken. Alternately, if a person wanted to handled a gun but was prevented (denied from exercising his 2A right) then he has immediate standing. It should matter not whether there is an arrest or prosecution.

Therefore there is standing.

Here's some other ways to achieve standing. My gun collection was just reduced in tangible value because I will now have to deduct the price of a transfer from any gun I sell (so if I sold 10 guns out of my collection at $20 per gun, that's a $200 loss or "taking"). To a working man, that's a lot of money.

All they need to do is transfer one gun and immediately there is standing.

How do all these gay people get standing to sue in states that honor, but don't allow people to gays to get married. They apply for a marriage license and are turned down. Bam. Standing. No need for an arrest. They are denied something - a right - and that immediately creates standing.

Same thing here. The 2A is a right. Just create a situation where a person is unable to handle another persons gun without technically violating the law. Immediate standing to sue.

[44 AMP]

....the system is flawed.

I agree, but until you remove the human element, the system will always be flawed, as humans as flawed.

And, if you did remove the human element, the system would also still be flawed, because you removed the human element.

Its far from perfect, but I would choose our flawed system over arbitrary rule by a king or a cleric.

[Tom Servo]

Alternately, if a person wanted to handled a gun but was prevented (denied from exercising his 2A right) then he has immediate standing. It should matter not whether there is an arrest or prosecution.

There's a gulf between what should be and what is. This case demonstrates it.

Whether or not the plaintiff has standing is up to the judge in question.

[leadcounsel]

Whether or not the plaintiff has standing is up to the judge in question.

But that's clear abuse of discretion.

Quick legal lesson for the non-lawyers:

Nice write up here: http://federalpracticemanual.org/node/19

Injury - can be economic or non. Should be but not necessarily concrete. Can be injuries to statutory rights. Can be actual or imminent injury.

The moment I am denied my rights, enjoyed from exercising my liberties, etc. based on some arbitrary law, I have standing to sue. Plain as day.

Say we're talking about a right to vote. I walk up to the poll and am arbitrarily denied. At that instant I have standing to sue.

Say we're talking about right to some civil liberty. The moment I'm denied that civil liberty, that creates standing.

This Judge fails to grasp this simple concept.

[bandaid1]

Background checks are 100% unconstitutional. All of them. If background checks violate a person’s civil liberties in order to gain employment (EEO lawsuit), then background checks also violate a person’s civil liberties in order to enjoy their Constitutional rights. After all, the right to a job is "not in the Constitution", but the right to a firearm is.

Additionally, requiring someone to give up their 4th and 5th amendment rights. as would be mandated by such a UBC law would require. is unfathonable. Not only are they unconstitutional but the law won't work as desired.

Currently there are over 300,000,000 firearms in the USA. Now those that want universal background checks say that this law will force the owners of those 300mil firearms to get a background checks on someone wanting to buy /own one of these 300mil. Well what if the firearm was sold before the law went into effect? How would a cop be able to tell when one of the 300mil guns was sold in a private transaction?

Now if the government can't track the 20 mil illegal aliens in the USA, what makes anyone think that they can track a item that is 15 times greater in number (and can be legally made in ones garage with basic tools)?

[Tom Servo]

If background checks violate a person’s civil liberties in order to gain employment (EEO lawsuit), then background checks also violate a person’s civil liberties in order to enjoy their Constitutional rights.

The results of background checks can be legally used to deny employment. An employer only runs into EEO issues if he's conducting the checks in an inconsistent and discriminatory manner.

Your argument raises an unintended consequence. If I were to argue a comparison between pre-employment checks and firearms purchase checks, proponents of "universal" background check schemes would simply point out that their proposal makes the process more consistent and therefore less prone to discrimination.

[44 AMP]

Correct me if I'm wrong, but isn't "having to pass a test" before voting against the rules?

if tis not constitutional to have to pass a test (get approval) for one Constitutional right, why not for all of them?

[bandaid1]

Tom
I suppose in the legal realm you're correct. In the case/issue of background checks, it is discriminating against ones own past and no one can change their past. Some may believe that certain people in society shouldn't own guns. I do not believe that. I think that if someone is to dangerous to exercise their constitutional right of self defense, then they are too dangerous to be walking around in society, period.

If someone breaks a law and serves his/her time in jail, then they have paid their debt. I see no reason to continue to punish them, after release, by withholding their rights for the rest of their lives. If that isn't cruel and unusual, then I guess I don't understand that meaning of that amendment either.

Having to prove your innocents in a background check means they suspect that you have done something wrong and they want you to pay a fee to assist them in this enterprise against yourself. In our legal system, as I understand it, a person is suppose to be presumed innocent until proven guilty and someone cannot be forced to provide evidence against themselves. Not to mention the right to privacy. Essentially, they are asking for you to wave your 4th & 5th amendment rights so they can deny your 2nd.

The entire background check thing is a abomination and unconstitutional in my eyes because it involves a pre-existing inalienable right that Shall not be Infringed. This isn't about a privilege.

[Ruger480]

In the case/issue of background checks, it is discriminating against ones own past and no one can change their past. Some may believe that certain people in society shouldn't own guns. I do not believe that. I think that if someone is to dangerous to exercise their constitutional right of self defense, then they are too dangerous to be walking around in society, period.

If someone breaks a law and serves his/her time in jail, then they have paid their debt. I see no reason to continue to punish them, after release, by withholding their rights for the rest of their lives. If that isn't cruel and unusual, then I guess I don't understand that meaning of that amendment either.

Having to prove your innocents in a background check means they suspect that you have done something wrong and they want you to pay a fee to assist them in this enterprise against yourself. In our legal system, as I understand it, a person is suppose to be presumed innocent until proven guilty and someone cannot be forced to provide evidence against themselves. Not to mention the right to privacy. Essentially, they are asking for you to wave your 4th & 5th amendment rights so they can deny your 2nd.

The entire background check thing is a abomination and unconstitutional in my eyes because it involves a pre-existing inalienable right that Shall not be Infringed. This isn't about a privilege.

Wow. Just...wow. I'll say I concur and leave it at that.

[doofus47]

Ruger 480, stop reading my mind! Only my wife is allowed to do that.

[44 AMP]

If someone breaks a law and serves his/her time in jail, then they have paid their debt.

I agree with this. However, since 1968, the loss of firearms rights has been permanent. There is a mechanism in law to allow you to petition the Fed to have your rights restored. As far as I know, it is almost never used, because CONGRESS will not FUND it.

There are people who should not have guns. Absolutely. And by their ACTIONS, shall ye know them.

Prior restraint (background checks, permits, etc.,) should not be done. What should be done is those people who prove them selves dangerous to others be removed from society.

However, that is not the society we live in today. What we should, or even can do about that is a matter of much debate.