Printed in the USA.
The Gottlieb-Tartaro Report
Issue 068
August, 2000
TANGLED LEGAL FIGHT FOR CONCEALED CARRY
In a confusing on-again, off-again bout of court rulings, Ohio’s ban on concealed carry has been struck down by one court, reinstated by another, and is headed for a hearing to strike it down again in the original court.
Ohio is one of only 7 states that outlaws concealed carry of a weapon, and a bill legalizing CCW, HR 165, has been stalled in the state legislature. Ohio Gov. BOB TAFT has warned that he will veto the bill if it is not supported by law enforcement.
The lawsuit to overturn Ohio’s ban on concealed carry, funded by the Second Amendment Foundation, began with a 29-year-old Cincinnati-area pizza delivery man, PAT FEELY, who had been arrested while delivering pizza. He was carrying a pistol in his belt and wearing a T-shirt with the motto, "God created men, and Sam Colt made them equal."
FEELY said the law was unfair because it deprived him of self-defense on dangerous late-night deliveries.
FEELY was prosecuted under the anti-CCW law, but acquitted. Both the judge and the prosecutor said the law should be changed or repealed.Then came private investigator CHUCK KLEIN. He had been looking for a case that could take on Ohio’s concealed weapons statute, and the FEELY case looked good.
But PAT FEELY had moved on to a factory job after his trial and no longer had the need for a concealed weapon.
Undaunted, KLEIN decided to file a new case with himself as a plaintiff. After half a dozen lawyers turned him down, KLEIN found that TIM SMITH, the lawyer who had defended PAT FEELY, would take the case.
To make his case solid, SMITH needed a few other like-minded plaintiffs with no criminal record and a need to carry concealed firearms.
KLEIN found an unusual collection of plaintiffs very unlike each other except for their need for concealed carry:
JAMES COHEN, PAT FEELY’s old boss, owner of Capri Pizza, had been robbed at gunpoint. VERNON FERRIER, a hairdresser, carries a pistol leaving his shop at night and when volunteering downtown with the homeless at the "Haircuts for the Heart" program. LEA ANN DRISCOLL, a personal trainer, carries a gun when she jogs in the morning and when she leaves the gym at night.Now all they needed was money. The Second Amendment Foundation (SAF) was interested. ALAN GOTTLIEB, founder of SAF, said, "The only reason this law hasn’t been challenged before is that nobody had the money to challenge it."
SAF funded the suit in Hamilton County Court of Common Pleas and SAF attorney WILLIAM GUSTAVSON joined the case. Last month Judge ROBERT RUEHLMAN issued a temporary restraining order barring police from arresting anyone under the anti-concealed carry law. Qualified people in Hamilton County could carry without fear of being arrested - for a while.The Ohio First District Court of Appeals overturned the restraining order, but did not remove the case from Judge RUEHLMAN. Plaintiffs will soon ask him that the law be struck down as unconstitutional. Win or lose, an appeal is nearly certain.
So the case is just beginning - but the Ohio legislature has been given a jolt.
BATF BACKS OUT ON EDUCATION EVENT
A joint news conference that had been planned to announce an education program set up by the gun industry and the Bureau of Alcohol, Tobacco and Firearms ended up with the BATF as a no-show.
Observers quickly concluded that the BATF was playing political games, trying to leave the National Shooting Sports Foundation (NSSF), the gun industry’s trade association, in the lurch.
The national educational campaign that was to be announced was created by both sides to reduce "straw purchasers" - people who buy firearms for unlicensed sellers, criminals and juveniles.
BOB DELFAY, president of NSSF, saw the BATF’s breach of faith as politically motivated. "They didn’t want to admit that the industry they are threatening to sue for being irresponsible is taking the lead on an initiative to keep guns out of the hands of criminals," DELFAY said.The BATF backed out the day before the news conference. BATF spokesman BILL KINSELLA gave a lame excuse. He said the agency’s withdrawal was "unfortunate," but not political. The goal of backing out, he said, was to focus on the program and let the foundation take center stage.
The gun industry faces dozens of lawsuits claiming firearms makers have been irresponsible by not making their products safer. Housing and Urban Development Secretary ANDREW CUOMO has been leading the push for several anti-gun programs by the CLINTON administration.
NSSF unveiled the program without the BATF’s presence. The program aims to educate gun dealers on straw purchasing and let consumers know they can be sentenced to 10 years in prison for buying a firearm for someone else.According to a recent BATF report, nearly half of its criminal "gun-trafficking" investigations and nearly one-third of the guns in those cases are the result of straw purchasers.
GUN INDUSTRY COMMERCIALS WILL TRY TO COUNTER LITIGATION
The NSSF is fighting back against a raft of lawsuits by state and local governments, and threats of lawsuits from the CLINTON administration.
The Foundation, which represents 1,800 companies, ran TV commercials during prime-time coverage of the Republican National Convention attacking President CLINTON and other politicians who support the litigation.
"We’re being blamed for crime and violence by this administration and big-city mayors whose greedy lawyers are using your tax dollars to sue us," says the narrator in one of the two 60-second spots, which shows a well-dressed man, presumably a lawyer, carefully shredding an American flag. "So now, we need you."
The Foundation plans to spend several million dollars on this TV campaign by election day.
Foundation President BOB DELFAY said, "Companies have gone out of business, and will go out of business if this litigation continues. This is a critically important election in our history."
DELFAY said the commercials ran twice a night on CNN on all four days of the Republican convention.
The Foundation plans to do the same during the Democratic convention.
It also intends to broadcast the spots throughout the fall in closely contested states with large numbers of hunters, including Michigan, Missouri, Ohio and Pennsylvania.
The Foundation does not endorse candidates, but its members prefer BUSH.
APPEALS COURT ALLOWS FBI TO KEEP RECORDS ON LAW-ABIDING GUN PURCHASERS
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has ruled that the FBI is not prohibited from maintaining an "audit log" on law-abiding gun purchasers who have cleared a National Instant Check System (NICS) background check.
The panel voted 2 to 1 in a sharply divided court, with two CLINTON appointees ruling in favor of Attorney General JANET RENO and the Department of Justice, and one REAGAN appointee strongly dissenting.
The majority opinion by Judges DAVID S. TATEL and MERRICK B. GARLAND held that federal law "does not prohibit all forms of registration," and that maintaining the "Audit Log" is permissible because it does not include all firearm owners in the United States, and is not permanent.
However, federal law does specifically prohibit "any system of registration of firearms, firearm owners, or firearm transactions or dispositions," regardless of how complete the records are or how long they are kept.
The majority also held that, even though the Brady Act clearly states that the FBI must destroy all records on lawful firearm transfers that are subject to NICS check, the law sets no specific timetable as to when the records must be destroyed. TATEL and GARLAND claimed the Brady Act is vague and the court must defer to "agency expertise."
In his dissent, Judge DAVID B. SENTELLE argued that Reno exceeded her authority, and that Congress was clear when it stated that records on lawful gun purchasers subject to NICS must be "destroyed." Reno’s assertion that the lack of the word "immediately" following Congress’s command to "destroy all records" led SENTELLE to write, "The Attorney General’s position strikes me as reminiscent of a petulant child pulling her sister’s hair. Her mother tells her, ‘Don’t pull the baby’s hair.’ The child says, ‘All right, Mama,’ but again pulls the infant’s hair. Her defense is, ‘Mama, you didn’t say I had to stop right now.’ I do not think that the parent’s command to the child is ambiguous, nor that of Congress to the Attorney General."
The National Rifle Association, which brought the suit, is filing a motion for a re-hearing before the full court.
Meanwhile, hearings have been held in the U.S. Senate to address continuing problems with the overall operation of NICS.
During the hearing, retired U.S. Senator BOB DOLE testified that his original intent when working on the legislation that eventually became the Brady Act was to mandate the immediate destruction of the records in question.
U.S. District Judge JAMES ROBERTSON dismissed the NRA’s lawsuit last year, saying the Justice Department acted reasonably in establishing auditing standards.
The NRA asked the D.C. Circuit Court of Appeals to overturn ROBERTSON’s ruling.
Attorney General JANET RENO called the ruling "a win for the safety of all Americans," saying "it will allow us to continue to conduct audits that protect individual privacy, ensure system accuracy and deter fraud by corrupt gun dealers."
ASSOCIATION OF NEW JERSEY RIFLE & PISTOL CLUBS CHALLENGES GUN LAW
The Borough Council of Roseland, New Jersey, recently passed an ordinance that makes it illegal to have a gun within 1,000 feet of a school.
Roseland is a quiet middle-class suburb 10 miles west of Newark.
The Association of New Jersey Rifle & Pistol Clubs (ANJRPC) has sued to overturn the law, charging the council has no right to regulate guns. It is also not clear whether the local police department will even try to enforce the ban.
NANCY ROSS, a spokeswoman for the ANJRPC, contends that such laws only hurt law-abiding gun owners and that the ordinance treads on the state’s authority to regulate handgun possession.Roseland Mayor LOUIS DEBELL, chief proponent of the ordinance, said the ban is permissible because it simply expands on the state law that bans guns in schools.
"How can you object to doing something that would protect the safety and welfare of children and residents?" asked the mayor. "It doesn’t infringe on anyone’s rights."
But it does, countered ROSS.The court will decide.
ILLINOIS STATE RIFLE ASSOCIATION AND PROJECT EXILE
An Illinois proposal to mirror Richmond, Virginia’s successful "Project Exile" has won cautious optimism from the Illinois State Rifle Association (ISRA).
In Project Exile, the City of Richmond used federal firearm laws to send previous offenders caught with guns directly to federal prison. Project Exile is credited by many for halving Richmond’s murder rate.
ISRA President RICHARD PEARSON said, "We haven’t seen the Illinois draft legislation as of yet, so it would be difficult for us to say that we buy into it 100 percent. However, the ISRA strongly supports the concept of getting repeat offenders, especially those carrying guns, off of our streets."
The prospect of an effective Project Exile-type program for his state excited PEARSON. "In a city like Chicago, where 80% of murders are committed by repeat offenders, one would expect that Project Exile would have been welcomed with open arms - but it wasn’t. For nearly two year, ISRA has been calling upon Illinois’ top law enforcement officials to institute a program like Project Exile here in Illinois."
Now state Rep. ANNE ZICKUS (R-Palos Hills) has introduced a bill to create a program like Project Exile.
PEARSON said, "I suspect that Rep. ZICKUS’ plan is a step in the right direction and we look forward to working with her to hammer out the details."
FLORIDA ADVOCATES FIGHT FOR GUN RIGHTS
An anti-gun ordinance passed by the City of South Miami violates Florida’s preemption law, claims a lawsuit filed by the Unified Sportsmen of Florida (USF) and the National Rifle Association.
On June 6, 2000, the City of South Miami unlawfully passed a local ordinance to mandate trigger locks or locking devices on all firearms in the city, claims the lawsuit.
The ordinance fixes a $500 fine for violation of the ordinance.
State law prohibits counties and cities from regulating "the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation" of firearms."
Florida’s anti-gun Attorney General BOB BUTTERWORTH (D) issued an opinion the next week saying that South Miami’s ordinance doesn’t violate state law, and that the City can keep its ordinance until a court tells it otherwise.
MARION HAMMER, USF executive director and former NRA president, said, "BUTTERWORTH’s opinion is bogus. The ordinance is illegal and it’s a blatant political opinion. He knows it, we know it, and any lawyer worth his salt knows it."Nationally recognized constitutional expert and attorney STEPHEN P. HALBROOK has been retained as lead co-counsel to represent USF and NRA.
A month after South Miami passed its trigger lock ordinance, the Broward County town of Weston backed down on plans to pass its own similar ordinance, perferring to let other cities fight expensive lawsuits on controversial new laws.
Commissioners won’t discuss the anti-gun proposal and it isn’t certain that it will ever reach commission chambers.
In late July, Palm Beach County began crafting its own mandatory trigger lock ordinance.
West Palm Beach gun shop owner MICHAEL GETZIE told commissioners that the proposed ordinance violates state law.
Like South Miami, the county thinks it’s found a loophole: The law doesn’t mention the regulation of gun storage.
BUTTERWORTH’s legal opinion pointed out that technicality in supporting the legality of South Miami’s ordinance.
GETZIE promised a lawsuit, saying, "Florida law says you can’t do it. If you can do that with guns, you can do that with anything."Palm Beach County commissioners also approved a series of gun safety recommendations made by the county’s criminal justice advisory board.
AROUND THE WORLD
• LONDON - The British government came under sustained attack recently when figures showed a substantial increase in crime, with instances of "violent crime" up by a dramatic 16 percent.
The figures hit Prime Minister TONY BLAIR hard. One of the key slogans of his successful 1997 election campaign was, "Tough on crime, tough on the causes of crime."
Three years ago, BLAIR’s victorious campaign convinced voters that the Labor Party had replaced the Conservative Party as the party of law and order. Now Conservatives are scoring political points by using the new statistics to show that is not the case.
ANN WIDDECOMBE, the opposition party’s spokesperson on home affairs, said, "When they came into office, crime was falling. Their policies have caused this rise. Labor’s law and order policy has failed."
News reports did not mention that the Labor Party enacted a gun ban, or that the gun ban might have anything to do with the rise in crime.
LEFTIST GROUP TO SUE BRAZILIAN GUN MAKER
• BRAZIL - Viva Rio, a so-called "human rights" group, has enlisted two lawyers from the United States to help in their lawsuit against Taurus International, which has its main plant in Brazil and a smaller subsidiary in Miami.
ELISA BARNES successfully sued Taurus International in a Brooklyn federal court. JULIE DUGAN advises attorneys in similar suits across the United States.A study financed by Viva Rio and the Rio de Janiero state government showed that nearly half the guns seized by Rio’s police are manufactured by Taurus International.
Government figures show Brazilians own an estimated 8 million guns, of which about 6 million are unregistered and most of those are in the hands of criminals.
As usual in the gun control crowd, the activists of Viva Rio are not concerned with controlling the criminals who use the guns.
The head of Viva Rio, RUBEM CESAR FERNANDEZ, said a key to their case is large gun sales in the past by Taurus to neighboring Paraguay, which he claims is an arms supplier for Brazilian criminals.
The American lawyers are hoping to win with the same arguments that won in the Brooklyn case - that gun makers should be held responsible for the acts of purchasers who use them illegally.
GOVERNOR SUPPORTS GUN RIGHTS WITH PERSONALIZED SHELLS
• UNITED STATES - Arkansas Gov. MIKE HUCKABEE is giving out unusual gifts these days: 12-gauge shotgun shells personalized with the inscription, "Mike Huckabee, a governor who supports the 2nd Amendment."
Remington Arms Co., which operates an ammunition factory in Lonoke, Arkansas, sent the unique shells to the governor because he is such an outspoken supporter of gun rights.HUCKABEE presented one of the personalized shells to Republican Gov. GEORGE W. BUSH, presidential nominee, during a recent BUSH visit to Little Rock. The gift was not live ammunition, but a prototype. Some 500 live shells are planned for delivery to HUCKABEE by PAUL CAHAN, general manager of Remington’s Arkansas plant.
Since the shells for HUCKABEE’s gun would have a retail value of about $120, the gift will have to be reported under Arkansas law that requires public servants to report on financial disclosure forms any gift valued over $100.
STATUE MUST BECOME POLITICALLY CORRECT
l UNITED STATES - A 1979 statue of a boy holding a water pistol in Santa Fe, New Mexico will be replaced with a boy holding a hose.
Artist LINDA STRONG recently decided to rework her statue, "The Children’s Fountain of Santa Fe" after two decades of fierce debate. Letters to the editor of the local newspaper got nasty about two year ago, complaining about the "violence" represented by the water pistol. Bang, Bang, you’re wet. Go figure.
SARAH BRADY: SHOULD SHE MAKE UP YOUR MIND WHO TO VOTE FOR?
Anti-gun maven SARAH BRADY recently issued this statement about the BUSH/CHENEY presidential ticket:
"DICK CHENEY was elected to the U.S. House of Representatives from Wyoming. In 1989, he left to become President BUSH’s Secretary of Defense. During his time in the House, his record was not only pro-gun, it was extremely pro-gun."
BRADY went on to spell out which bills CHENEY voted for and against. He voted for the McClure/Volkmer Firearms Owners Protection Act. He voted against the "Terrorist Firearms Detection Act," which was a thinly disguised gun control bill.
It’s fairly clear where DICK CHENEY stands on the gun issue.
SARAH BRADY didn’t mention it, but DICK CHENEY is also a member of the National Advisory Board of the Citizens Committee for the Right to Keep and Bear Arms.
GUN CONTROL GROUP BUYS TV ADS TO ATTACK SENATE CANDIDATE
Handgun Control Inc. has paid about $100,000 for a TV advertising campaign attacking U.S. Senate nominee GEORGE ALLEN (R-VA) for his pro-gun record as governor.
The 30-second TV spots are designed to galvanize support for two-term Sen. CHARLES S. ROBB (D-VA) in the November 7 election.
The ad aired for two weeks on three Washington stations and cable in Alexandria, Arlington and Fairfax counties. It does not mention ROBB or the Democrat Party.
Under federal law, political expenditures by advocacy groups must be entirely independent from candidates and their campaigns.
ROBB’s campaign themes include his support for the Brady bill, and assault weapons ban and trigger locks.ALLEN has opposed waiting periods for gun purchases and Virginia’s law allowing purchase of only one gun a month, though he does support requiring manufacturers to put trigger locks on all new guns.
TIM MURTAUGH, ALLEN’s campaign press secretary, scorned Handgun Control Inc.’s TV ads as the work of "yet more CHUCK ROBB-sanctioned attack dogs, doing his dirty work."
GUN SHOP TAXED OUT OF BUSINESS
After 57 years, MARA SIEGLE is closing the doors to her family’s gun shop, the last one left in Oakland, California.
She is the victim of Oakland’s "gun tax," a special tax on gun sales and shops imposed by a vote in 1998. City leaders argued that those who sell guns should help pay for their costs to society, an estimated $32,000 for every gunshot wound treated.
Any Oakland store that sells guns or ammunition must pay the city $24 for every $1,000 made on any merchandise sold, from guns to fishing rods to books. Prior to the tax’s approval, such businesses paid $1.20 for every $1,000 in receipts.SIEGLE lost a court case challenging the gun tax, and closed the store.
In neighboring San Leandro, ANTHONY CUCCIARA, the owner of Traders, fears his store, the largest gun outlet in Northern California, could face the same fate.
However, CUCCIARA has not quit fighting yet.
He brought a lawsuit against San Leandro’s own "gun tax" similar to MARA SIEGLE’s case against Oakland, claiming that the law was designed specifically to put Traders out of business.
CUCCIARA’s case was recently thrown out of Alameda County Superior Court.
However, CUCCIARA’s lawyers say he will appeal the ruling on the tax.
Attorney JACK LEAVITT said, "With the 2 percent profit margin Traders makes on most transactions, a 3 percent tax can essentially put it out of business. Our position is that the city is less interested in raising revenue than in putting Traders out of business."
GUN NEWS TICKER: SHORT TAKES ON GUNS
• The Los Angeles City Council is considering an ordinance banning the sale of ammunition. LUIS TOLLEY of Handgun Control, Inc., said, "We know that criminals are still getting guns on the street through the black market. We shouldn’t allow them to also easily walk into a store and buy as much ammunition as they want." JAMES BAKER, a spokesman for the National Rifle Association said, I wish they were half as anxious about prosecuting criminals. Unfortunately, they don’t seem to have the same enthusiasm for putting the blame where the blame belongs and that’s on the criminal element."
• Two CLINTON cabinet officers and two members of Congress recently addressed the advocacy group, Alliance for Justice, with anti-gun messages. Attorney General JANET RENO called "gun violence" an epidemic. Housing Secretary ANDREW CUOMO urged the crowd to counter the strength of gun rights forces with their own anti-gun political involvement. Alliance President NAN ARON said, "We intend to launch a mobilization so massive that politicians cannot ignore us." The Alliance monitors federal judicial nominations and sponsors rallies, town hall meetings and door-to-door campaigns. Democrat Reps. BOBBY RUSH of Illinois and CAROLYN McCARTHY of New York, both of whom have lost family members to criminals, urged the group to be activist. The Alliance has held its events - this year’s will be on Oct. 2, the opening day of the Supreme Court - since 1994.
• Texas District Judge H. LON HARPER has been reprimanded for repairing guns on the bench as he presided over jury selection in a murder trial. The State Commission on Judicial Conduct said that Judge HARPER "failed to act in a dignified manner" and "failed to maintain order and decorum in the courtroom." Judge HARPER said, "Almost all the judges carry guns. I just should have kept mine under the robe instead of outside of it with a screwdriver. I guess I won’t do any more handgun repair on the bench."
• Colorado’s Supreme Court has cleared the way for a November ballot initiative to require criminal-background checks on all firearms buyers at gun shows, even purchases from personal collections. The high court turned down a request from gun rights advocates to find that state officials did not follow correct procedure in approving the wording of the proposed initiative. Another court battle is expected if the initiative passes.
• The Chicago Police Department’s 13,500 police officers must place trigger locks on their guns when they’re off duty, according to a new order. The Department bought 14,000 Master Lock devices for about $60,000. Police Superintendent TERRY HILLARD said the new policy is in keeping with a state law passed last year that requires gun owners to lock their firearms in storage cases or equip them with trigger locks in homes where children 14 and under live. Boston and Philadelphia also require their officers to use trigger locks on their guns at home.
• Master Lock Co. announced that it is recalling 752,000 gun locks because it was concerned that they could be opening without using a key. The company said it would replace any locks affected by the recall. No actual incident of unauthorized unlocking has been reported, but the company was concerned that "a manufacturing discrepancy" might allow children or others access to a firearm equipped with one of these locks.
• A recent poll by Zogby International indicates that Independent voters prefer Texas Gov. GEORGE W. BUSH over AL GORE when it comes to firearm-related issues. The poll showed 69% of Independent voters favor a candidate who promotes enforcing existing laws, while only 25% support a candidate who promotes more "gun control" laws. Also, 71% would support a candidate who believes the Second Amendment protects an individual right, while only 21% would support a candidate who thinks it protects the "right" of states to arm their militias.
• A Senate subcommittee has approved a measure that would prohibit the government from giving gun-buying preference to Smith & Wesson, the only gunmaker to sign an agreement with the U.S. government pledging to implement gun-safety measures. The measure was part of a Treasury Department appropriations bill.
GOOD GUN STORIES THAT MAKE THE HEADLINES
You absolutely know there are great news stories out there about good law-abiding people successfully using guns for personal self-defense, right?
Well, why don’t we see them, then?
The answer is obviously that the major media usually side with the anti-gun crowd and don’t report such pro-gun events.
But every now and then a story is so good that even the anti-gun media let it out. Here is a collection from the past month, just so you’ll know you’re right.
• The Philadelphia Inquirer recently reported that one of two men trying to carjack an auto at gunpoint was shot and killed by the car’s driver. The 26-year-old driver, whom police refused to identify, fired his pistol at the pair after they shot at him. The driver had a permit to carry a pistol and his gun was legally licensed. Police questioned and released the driver, saying they doubted charges would be lodged.
• The El Paso Times reported that Dr. Joseph Segapeli, 44, shot and killed Steven Craig Medrano, who forced his way into the doctor’s home and threatened his family. Medrano got in by holding his hand in his shirt as if he had a weapon and then forced the doctor’s three children, their nanny and another man into the kitchen and made them kneel. Medrano demanded a change of clothing and the doctor came back with the clothes - and a handgun. When Dr. Segapeli showed Medrano the gun, Medrano attacked him. The doctor fired and hit him once in the chest. Medrano was pronounced dead at a local hospital. Police said the prosecutor will determine if charges will be pressed against Segapeli, but Texas law allows people to use deadly force to protect themselves, their family and their property under certain circumstances.
• The Oklahoma City Oklahoman reported that a shotgun-wielding teenager was shot in the forehead after he tried to force his way into a woman’s apartment. James Barkley shot Christopher Baker, 17, after he forced his way into Barkley’s mother’s apartment. Police said Baker was suspected of raping the woman next door just before breaking into the Barkley apartment. Baker was in serious condition in a local hospital.
• The Tacoma News Tribune reported that two men trying to break into an apartment were shot by the occupant. One was pronounced dead at a local hospital and the other was hospitalized with a chest wound. A Pierce County deputy prosecutor said that the shooter did nothing illegal and would not be charged.
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