This week in gun rights – August 8, 2020

Matthew Larosiere is the Director of Legal Policy at Firearms Policy Coalition. You can connect with him on Twitter @MattLaAtLaw.

Virginia takes guns in first exercise of new red flag law; Sheriff and County Commissioners falsely claim they won’t enforce anti-2A laws; Court says gun stores have standing to sue; Wyoming Supreme Court refuses to hear university student’s case; Police officer responds to call, steals dead man’s firearms (and the call to end qualified immunity); Lifelong marijuana user goes to jail.

Virginia takes guns in first exercise of new red flag law

Police in Virginia just announced that in mid-July, the state had seized firearms for the first time using the Commonwealth’s new red flag law. According to the report, police seized two handguns and a shotgun from an allegedly suicidal individual in a parking lot. The individual in question was not present when the judge issued a “substantial risk order,” which resulted in his rights being suspended for six months. The article doesn’t specify why he wasn’t able to attend the hearing. The judge in this situation suspended the individual’s rights for half a year, which doesn’t exactly smack of robust Due Process, especially in a situation where a crime was not committed. The six month suspension is the maximum permissible under the Virginia red flag law, but given the propensity of judges to “err on the side of caution,” we worry that most seizures going forward will carry the same maximum penalty. 

Sheriff and County Commissioners falsely claim they won’t enforce anti-2A laws

In a time when the police are under constant criticism, it’s nice to have something positive to report. Sheriff Duane Burgess and commissioners from Johnson County, Indiana have announced that they will no longer use county resources to enforce laws infringing on gun rights. Unfortunately, the Sheriff and county commissioners haven’t taken a look at the founders’ documents or the Second Amendment - something about not infringing or whatever. Johnson County officials have said they intend to enforce laws currently on the books, such as those banning possession of automatic weapons and carrying without a permit; laws which clearly infringe on the type of firearm you can carry, and the right to carry itself. This is why it’s always important to read the fine print. If Johnson County was serious about their commitment to constitutional rights, they would refrain from enforcing the morass of victimless firearm prohibitions that presently shame the books.

Court says gun stores have standing to sue

In an opinion issued on Monday, the 4th Federal Circuit Court of Appeals decided that gun stores have standing to raise legal challenges on behalf of their customers. This opinion involves a lawsuit brought by Maryland Shall Issue and gun dealer Atlantic Arms, both of which were challenging Maryland’s handgun licensing law as unconstitutional. Earlier this year, the lower court said that as a dealer, Atlantic Guns didn’t have standing to bring a lawsuit because the license requirement applied to the customers, not the business. In its opinion, the Court of Appeals explained that Atlantic Arms’ claim was similar to prior cases involving alcohol sellers, and that when the state implemented its handgun licensing requirement, it caused definite, economic harm to the company. This ruling is significant for gun rights because it means that, at least in this federal circuit, which consists of Maryland, Virginia, West Virginia, and the Carolinas, companies serving gun owners, which have deeper pockets, are now in a better position to sue on behalf of their customers who may not have the financial means to challenge unconstitutional laws. 

Wyoming Supreme Court refuses to hear university student’s case

This week the Wyoming Supreme Court denied a University of Wyoming student’s appeal regarding his prosecution for bearing arms while on university property. Lyle Williams was charged with criminal trespass, a misdemeanor,  in 2018 because he refused to leave the state Republican Party’s convention after being asked to by university police. Williams correctly asserted that Wyoming law prohibits (with some exception) local governments from limiting the right to carry. 

To circumvent the obvious legal conclusion that the University of Wyoming lacks the authority to write its own gun control laws, the judge in the lower court ruled that the university is an “alter ego” of the state, and can therefore write laws. This decision is rather perverse considering the school is well, a school, and thus a political subdivision, which is expressly forbidden by the state from writing its own gun laws. In any case, the court should have stepped in, and I hope the state legislature takes the time to amend their preemption law to clarify that the right to bear arms, a fundamental right, cannot be limited by a bunch of unelected academics.

Police officer responds to call, steals dead man’s firearms (and the call to end qualified immunity)

In April, Corporal Jacob Miskill, a 5-year veteran of the Ann Arundel County, Maryland Police Department, responded to a call regarding a dead man. When he arrived at the home, he allegedly used the opportunity to steal firearms and other property. On Sunday, he was finally arrested and charged with multiple counts of burglary and scheming to commit theft. While Miskill’s police department may have condemned his actions, this is yet another instance of misconduct on the part of government agents; a trend which, thanks to contrivances like qualified immunity, often go without consequence or compensation to their victims.

On Tuesday, the federal court for the Southern District of Mississippi issued its opinion on Jamison v. McClendon. This case arose over a vehicle stop. Mr. Jamison, the driver of the vehicle, was held by Officer McClendon for over two hours after he was pulled over. During the encounter, McClendon lied to Jamison, saying that he was pulled over because the police believed he had cocaine in his vehicle. Jamison refused vehicle search requests five times, after which McClendon called a canine unit to search the vehicle. Nothing was found during the search, and Jamison was released with $4,000 worth of damage to his car.

Over the course of 72 pages, Judge Carlton Reeves slammed the Supreme Court for developing the legal doctrine of qualified immunity, which prevents plaintiffs from recovering from government employees when they are acting under color of law. To win, plaintiffs have to show that the employee violated "clearly established statutory or constitutional rights of which a reasonable person would have known.” Apparently failing to obtain a warrant and then conducting an unlawful search of someone’s vehicle based on a lie while detaining someone for over two hours is not the kind of violation that would offend a clearly established statutory or constitutional right. Because of this, Judge Reeves was forced to dismiss the claim against McClendon.

Lifelong marijuana user goes to jail

One of the things that will get you disqualified from the right to keep and bear arms under federal law is being “an unlawful user of or addicted to a controlled substance.” Jordan James Booker, a resident of Waterloo, Missouri, is learning this lesson the hard way. During a private transaction at Booker’s home, the would-be buyer of Booker’s television tried to use counterfeit bills to pay him. Booker told him to leave and grabbed his rifle when he refused. Police showed up because Booker fired a warning shot and he was charged with “reckless use of a firearm and possession of marijuana.” 

During his encounter with the police, Booker allegedly disclosed that he was a “lifelong marijuana user.” Big mistake. Under federal law, that means that he was prohibited from possessing a firearm because he was “an unlawful user of or addicted to” marijuana, which is a Schedule I controlled substance. Even though Booker may have been totally sober during the encounter with the counterfeiter, it doesn’t matter. Booker was sentenced to two years in federal prison.

The drug prohibition provision in the prohibited persons list is one of many irrational prohibiting factors, especially when you consider how serious a punishment the removal of civil rights really is. It permits prosecution of people who use controlled substances as medication, and just because the federal government has made a substance illegal doesn’t mean it should be. Marijuana is the perfect example, because its medicinal use is legal in over thirty states and its possession is being decriminalized across the nation. Until legislators come to their senses, feds will continue to be able to unjustly prosecute people for engaging in harmless activity.