Gun shop veto draws legal fight
County changed rules as business tried to open
The latest location where the Second Amendment Foundation has taken its fight against unconstitutional limits on gun ownership is Alameda County, Calif., which changed the rules as three businessmen were trying to open a gun shop.
The Second Amendment Foundation was integral in the landmark McDonald v. Chicago Supreme Court case which determined that the Second Amendment provisions that individuals can have and own weapons applies to states.
That ruling followed a key decision in Washington, D.C., that earlier said the Second Amendment applied to individuals, not just militias.
Since then, the organization has taken on a number of gun restrictions set up by local governments, with the California location the latest flashpoint.
There, the foundation filed a lawsuit recently against the county and its board of supervisors for allegedly violating the constitutional rights of three businessmen by wrongfully denying them permits to open a gun shop.
The foundation was joined by the Calguns Foundation, California Association of Federal Firearms Licensees and businessmen John Teixeira, Steve Nobriga and Gary Gamaza.
They are represented by attorneys Donald Kilmer of San Jose and Jason Davis of Rancho Santa Margarita.
“The facts in this case are outrageous,” said SAF founder and Executive Vice President Alan Gottlieb. “In the fall of 2010, Gamaza, Nobriga and Teixeira formed a business partnership with the intention of opening a gun store in Alameda County. When they began the process of getting permits to open their shop, they were advised of a requirement that gun stores not be located within 500 feet of any school, liquor store or residence.”
He said they carefully measured and found the location they had picked for their plans was “well beyond the 500-foot limit.”
However, “Then the county changed the measurement requirements,” he said.
The lawsuit explains the county also allowed an objection to the shop to be filed even though the deadline had passed, and even though the West County Board of Zoning Adjustments had voted to approve a conditional use permit and allow the gun store to operate.
“It is clear from the county board of supervisors’ behavior that they have gone out of their way to prevent three businessmen from opening a gun store in their jurisdiction,” Gottlieb stated. “This is a violation of their rights of equal protection and due process under the Fourteenth Amendment, and cannot be allowed to stand.”
He continued, “Social bigotry is bad enough when practiced by the media and the gun prohibition lobby, but when it becomes the official policy of an elected government panel, it then becomes necessary, if not imperative, for the courts to intervene.”
The foundation also recently argued a pair of California cities and the state’s Department of Justice improperly confiscated firearms during investigations and then refused to return them to their owners – even after the subjects of the inquiries were cleared.
That case is on behalf of gun owners Douglas Churchill and Peter Lau, and alleges the cities are engaging in “deliberate theft of personal property.”
“We saw this sort of property theft following Hurricane Katrina,” Gottlieb recalled in a statement, “and we took that case to federal court and won. Government agencies simply cannot seize private property and refuse to give it back by playing bureaucratic games.”
Gene Hoffman, chairman of the Calguns Foundation, which has also joined the case, explains, “Law-abiding Californians should not be forced to seek out expensive legal representation just to get back what is rightfully theirs in the first place.”
According to court documents, Lau’s firearms were confiscated by the Oakland Police Department when authorities were investigating his brother’s suicide. Eventually, his guns were returned, all except one rifle the police deemed an “assault weapon.” Lau’s attorneys dispute the classification.
Churchill’s firearms were confiscated by the San Francisco Police Department in January 2011 as part of an investigation, but the district attorney dismissed charges less than a month later. Nonetheless, police refuse to return seven of Churchill’s weapons – including a Remington .22-caliber rifle and a Winchester 20-gauge shotgun.
“What the police departments are doing is a deliberate theft of personal property, and they know it,” added Gottlieb. “Our partners at the Calguns Foundation have properly argued that this is inexcusable, and they are right.”
Names as defendants in the case are the cities of Oakland and San Francisco and their respective police departments, California Attorney General Kamala Harris and the state’s Department of Justice. The case is currently before the U.S. District Court of the Northern District of California.
Other cases the SAF has handled in recent months:
- SAF sued the state of California over a “vague” gun ban over a case in which a man twice was jailed and then cleared. The focal point is the definition of an “assault weapon.” The statute’s definition of weapons is so “vague and ambiguous,” the group contends, that one man was arrested on two different occasions for violations but ultimately cleared of any wrongdoing. “It’s an insult to be arrested once for violating a law that is so vague and ambiguous that law enforcement officers cannot tell the difference between what is and what is not a legal firearm under this statute,” said Gottlieb, “but to be arrested and jailed twice for the same offense is an outrage.”
- In New York, the organization has asked for a summary judgment that would strike New York City’s $340 triennial fee for just owning a handgun. The legal brief explains that under U.S. Supreme Court rulings “the right to keep a handgun in the home for self-defense is a part of the ‘core’ of the Second Amendment’s protections.” The case, brought by SAF, the New York State Rifle and Pistol Association and individuals including an electrical contractor, a paramedic, CPA and woodworker, argues, “The city’s $340 fee is inherently prohibitive and serves the impermissible purpose of discouraging the exercise of constitutional rights. While the city can charge a nominal fee to defray costs, the $340 fee is not nominal, and has never been calculated to defray costs.”
- The organization has sued New Jersey and officials and judges over procedures that allowed them to refuse firearms permits for a kidnap victim, a man who carries large amounts of cash for his business and a civilian FBI employee who fears attacks from radical Islamists. The permissions were denied on the grounds people had not shown a “justifiable need.” “Law-abiding New Jersey citizens have been arbitrarily deprived of their ability to defend themselves and their families for years under the state’s horribly crafted laws,” said an SAF spokesman. “The law grants uncontrolled discretion to police chiefs and other public officials to deny license applications even in cases where the applicant has shown a clear and present danger exists.”
- The SAF filed a case on behalf of an honorably discharged veteran from the Vietnam War and names as defendants Attorney General Eric Holder and the Federal Bureau of Investigation. The case was filed in U.S. District Court for the District of Columbia on behalf of Jefferson Wayne Schrader. The question is whether the state of Maryland can deprive an individual of the right to possess a weapon over a misdemeanor. Schrader had been convicted of misdemeanor assault relating to a fight involving a man who previously had assaulted him in Annapolis. But he was denied the opportunity to receive a shotgun as a gift or to purchase a handgun for personal protection.
- SAF filed a claim against Maryland for a man who alleged the state was violating the Second Amendment by refusing to renew his handgun permit. Raymond Woollard originally was issued a carry permit after a man broke into his home during a family event in 2002. Woollard’s permit was renewed in 2005 after the defendant in the case was released from prison. But state officials later refused to renew the permit, even though the intruder now lives some three miles from Woollard.
- SAF sued Westchester County, N.Y., because officials there were requiring that residents have a “good cause” to ask for a handgun permit. The federal lawsuit alleges the requirement conflicts with the U.S. Supreme Court ruling that the Second Amendment establishes a personal right to “keep and bear arms.” Individual plaintiffs in the case are Alan Kachalsky and Christina Nikolov, both Westchester County residents whose permit applications were denied.